Mrs. Iriagbonse Orumwense V. Dr. Daniel Amu & Anor (2008)
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CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
The Appellant in this appeal who was the Plaintiff in the Court below had sued the Respondents who were Defendants at the lower court, claiming the following reliefs:
(A) A Declaration that the plaintiff is both the legal and equitable owner of all that large piece or parcel of land measuring 928.804 square meters, registered as No.30 at page 30 in volume 774 at the Lands Registry in Benin City, lying and situate within K.S. Okeaya-Inneh’s Estate at Isiohor, Ugbowo Housing Estate, Ugbowo, Benin City, delineated and marked as Plot NO.34 in a Survey Plan No. ISO/BD/1328/89 of 16th October 1989 bounded by Beacon Nos. BOD 1228 – BBD 1147 – BDD 1146 and BDD 1227 respectively.
(B) A Declaration that the plaintiff is entitled to possession and statutory right of occupancy of the piece of land measuring 928.804 square meters delineated in Survey Plan No. ISO/BD/1328/89 of 16/10/1989 bounded by Beacon Nos. BDD 1128 – BDD – 1147 – BDD – 1146 BDD 1127 respectively marked as plot 34 within the larger areas of land of K. S. Okeaya-Inneh’s Estate Layout at Isiohor, near Bendel Development and Planning Authority Housing Estate, Ugbowo, Benin City.
(C) An Order of possession in respect of the land in favour of the plaintiff;
(D) A Declaration that any purported claim by way of sales from any person by the Defendants is null and void.
(E) An Order of perpetual Injunction restraining the Defendants either by themselves or their servants/agents from dealing with the said lands either by building or sales in a manner that is inconsistent with the legal rights and interest of the plaintiff.
(F) N5,000,000.00 (Five Million Naira) special and general damages for trespass onto the land described in (a) above against the Defendants jointly and severally.
Pleading were dully filed and exchanged. At the trial, both parties testified on their respective cases, at the end of trial, the learned trial judge Oniokpaku CJ dismissed the case, Dissatisfied with the Judgment of the lower court, the appellant appealed to this court on Four Grounds of appeal (One original Ground, and three additional Grounds) which are here in set out without their particulars as follows:
GROUND OF APPEAL
- The judgment of the learned trial Judge is against the weight of evidence.
ADDITIONAL GROUNDS OF APPEAL
- The learned trial Judge erred in law when he held in the part of the judgment that:-
“I hold similarly in the present case in Court that when the Military Governor, Col. J. T. Ogbeha signed on 27th August, 1989 in Exhibit M, he thereby gave his consent to the Deed of assignment from the Assignor, K.S. Okeaya-Inneh, Esq. of all his rights and interest (as the assignor) in the parcel of land, Plot No.34 in the Okeaya-Inneh layout at lsiohor to the Assignee, Adaze Wilson Imafidon, and which consent has not been withdrawn. And that this said assignment Exhibit M, became effective from that said date, 27/8/89 and divested Okeaya-lnneh, Esq., of all his rights and interest in Plot No.34 From that date and the formal stamping and registration date of 28th March 1990, a later date within the provisions and the one year period allowed in paragraphs 3 and 5 of the consent letter in Exhibit M” and came to a wrong decision in dismissing the appellant’s case.
- The learned trial Judge erred in law in holding in that part of the judgment that:
“Finally in the present case before the Court, it is clear that after validly executing Exhibit “M” in favour of Adaze for plot No.34, the land in dispute, there was nothing left for 1st P.W, Okeaya Inneh, Esq., to convey to Iriagbonse and the Governor had consented to nothing in Exhibit “B”. That is, the purported Assignment in Exhibit “B” is void and of no effect,”
and came to a wrong decision in dismissing the Appellant’s Case.
- The learned trial Judge erred in law in not considering the legal effect of the error/mistake made by the Assignor in alienating plot 34 in Exhibit “M” after previously assigning the same in Exhibit “B”
After the judgment of the trial Court was delivered, and this appeal against it lodged, it was discovered that the records containing the evidence of the Plaintiff and his witnesses were gutted in the inferno that occurred in some parts of the court rooms of the lower court. However, both parties were ad idem as to the evidence led by the plaintiff and his witnesses at the lower court, as contained in their respective briefs. No fuss was raised about the non-availability of that evidence as part of the records of this appeal. The parties therefore having agreed to fight this appeal on the basis of the records as presented to this Court from the lower court, and having fought same on that basis, I make no further comment on it, and proceed to Consider this appeal on the basis of the record placed before us as agreed by the parties.
The facts of this case briefly stated as presented by the appellant in the lower court was that one Ibhafidon Aburime was granted an area of land including the portion now in dispute known as plot 34 Okeaya-Inneh Estate by the Oba of Benin under native Customary law. There after the said Ibhafidon Aubrime transferred that area of land to the appellant’s attorney Chief K.S. Okeaya-Inneh (SAN) as evidenced in Exhibits C & C1, who took possession of same, and purchased the rubber trees on the land from the owners as shown in Exhibits 0 – 03, later, plaintiff parceled out the area of land, the land now in dispute became plot 34 within the Okeaya Estate. In 1989, by a Deed of Conveyance Exhibit B, the Appellant’s attorney made a gift of plot 34 to his Sister Miss Iriagbonse Okeaya-Inneh, the appellant as a Wedding present.
On the 28th of March 1990, he also made a gift of the same plot 34 to his God Son Adaze William Imafidon, by another Deed of Conveyance in Exhibit M.
Ten years later, on the 29th of October 1999, the appellant’s Attorney claimed to have made a mistake in donating the same property to Adaza Imafidon in the Course of a search in the land Registry for which he wrote Exhibit N.
It was part of the appellant’s case, that earlier in 1997 when her attorney found that the Respondents were developing the property in dispute, he the Attorney wrote the Respondents in Exhibit J.
The Case presented by the Respondents at the lower court in summary was that on the 13th of November 1989, the appellant’s Attorney by Exhibit B, a Deed of Conveyance Registered as No.30 at page 30 in vol. 774 at the Lands Registry Benin City, made a wedding gift of plot 34, the property in dispute, within his estate in Benin City to the appellant. On the 28th of March 1990, by Exhibit M, another Deed of Conveyance, the same Attorney K. S. Okeaya-Inneh SAN gave his God Son Adaze Imafidon the same property, plot 34. However, in 1992, the Respondents by Exhibit Y, acquired a large parcel of land from Ugiagbe Omoragbon, which land included plot 34, the property in dispute. Both Exhibit B, made in favour of the appellant and Exhibit M made in favour of Adaze Imafidon received the Governor’s Consent. The consent on Exhibit M, being first in time having been given on the 27/8/89 while that in Exhibit B was given on 7/11/89.
The Respondents following the aforesaid acquisition, commenced the development of the said land the same year. In 1993, as the development was going on, Adaze Imafidon the beneficiary in Exhibit m, laid claim to plot 34 which was part of the property acquired by the Respondents in 1992. As a result of this claim, the respondents acquired another piece of land and exchanged same for plot 34 claimed by Adaze Imafidon. Adaze Imafidon then executed a Deed of assignment in respect of plot 34 in favour at the Respondents in Exhibit Y.
By 1995, the Respondents had fully developed the property they acquired inclusive of plot 34, and moved to reside therein.
Two years later, in 1997, the appellant’s Attorney, K. S, Okeaya-Inneh SAN, wrote the Respondents in Exhibit J. Again, in 1999, Ten years after the Execution of Exhibit M, the same appellant’s Attorney, claimed to have mistakenly assigned the property in dispute i.e. plot 34 to both the Appellant in Exhibit B, and to Adaze Imafidon (the Respondent’s predecessor in title) in Exhibit M, and therefore wrote Exhibit N, to Adaze Imafidon, and thereafter commenced proceedings at the lower court, the subject of this appeal against the Respondents,
Counsel to each party in this appeal, formulated three issues for determination which issues are in content, form and essence identical.
To underscore the common identity of the issues raised by both counsel. I reproduce herein in extenso the issues formulated by each counsel.
For the appellant’s counsel they read;
(i) Was the learned trial Judge right in holding that by Exhibit “M”, the Assignor was divested of all his rights and interest in plot 34 in the Okeaya-Inneh layout at Isiohor to Adaze Wilson Imafidon?
(ii) Was the learned trial Judge right in holding that Exhibit “B” is void and of no effect?
(iii) Was the learned trial Judge right in failing to consider the legal effect of the Assignor’s error/mistakes in assigning plot 34 in Exhibit “M” to Adaze Imafidon after previously assigning the same plot by Exhibit “B” to his Sister, Iriagbonse Okeaya- Inneh?
Then for the Respondent’s counsel, they read;
(i) Whether the learned trial Judge was right in holding that, by Exhibit “M”, the Assignor was divested of all his interests and rights in Plot 34, in the Okeaya-Inneh layout at Isiohor to Adaze Imafidon.
(ii) Whether the learned trial Judge was right in holding that Exhibit “B” is void and of no effect whatsoever.
(iii) Whether the learned trial Judge was right in failing to consider the legal effect of the common Assignor’s error/mistake in assigning plot 34 in Exhibit “M” to Adaze Imafidon and the same plot 34 in Exhibit “B” to Iriagbonse Okeaya-Inneh.
In my view the 2nd & 3rd issues as formulated by both counsel, would appear not to be apposite in the light of the pleadings and evidence. Therefore they are better reframed thus:
- Whether Exhibit B is void in the face of Exhibit M.
- Whether the learned trial Judge considered the legal effect of the Assignor’s alleged error/mistake in assigning plot 34 in Exhibit M to Adaze Imafidon after previously assigning the same plot by Exhibit B to his Sister, Iriagbonse Okeaya-Inneh?
Before taking the arguments canvassed by both counsel on the above issues, it is important to advert to the curious nature of the major Exhibits namely Exhibits B & M, upon which the case was fought in the court below. In Exhibit B, a close look and thorough study of it would show that it was executed on the 13/11/89, while consent was given to the transaction contained in the said Exhibit B on the 7/11/89 In other words, consent was given before the Document came into existence. A clear violation of the Land Use Act. Even at that, the application for consent was made on the 10/11/89 after the consent had been given.
Similarly in Exhibit M, a close look and thorough reading of it would show that it was executed on the 28th of March 1990, while consent by the Governor was given to it on the 27th August 1989 thus showing that the consent came even before the document existed. In the same vain, the application for consent which was made on the 2/11/89 came after the consent had been obtained. The confused state of these documents Exhibits B & M, further Compounded and Confounded the confusion in the documents upon which the case was fought in the lower court. I will later advert to this in this judgment.
The confused state of these documents could have easily disposed of this appeal, but in any event, let me go into the appeal proper. Learned Counsel for the appellant argued Grounds 2 & 3 together which are covered by the first issues by him for determination.
On this first issue, the learned counsel argued that by Virtue of Sec. 22 (2) of the Land Use Act, the Governor was empowered to give consent to a sale or other disposition of land relying on the authority of ITI NIG. LTD. V. DR. ADEREMI 1999 of NWLR (PT 614) 268 at 272.
He contended that there are two stages in a Contract for sale of land. Firstly the Contract stage, and Secondly the conveyance stage.
The consent of the Governor, he argued, would only follow a completion of Contracts for Sale. Exhibit M he submitted was a supposed binding Contract Between K.S. Okeaya-lnneh SAN and Adaze Imafidon upon which the Governor’s consent was given to confirm its validity. But that Exhibit M a supposed binding contract was issued in error or by mistake since Exhibit B had earlier been executed in favour of the appellant.
Therefore, in the face of that error or mistake in its issuance, Exhibit M could not have represented the expressed intention of the appellant’s.
Attorney to transfer the property in dispute to Adaze Wilson Imafidon so as to make it a binding contract entitled in law to receive the Governor’s consent. Having earlier donated the same property by Exhibit B to the appellant. Appellant’s Attorney had therefore nothing left of the property in dispute to be transferred to Adaze Imafidon in Exhibit M, a situation which rendered Exhibit M void.
The lower court, he argued was therefore in error when it adjudged Exhibit M valid.
In his reply to the foregoing contention of the appellant’s counsel, the learned counsel for the Respondents agreed that there are two distinct stages in the contract for the Sale, or other disposition of land namely, the Contract or Agreement Stage, ending with the formation or a binding Contract of Sale, and secondly, the Conveyance stage ending in the legal title vesting in the purchaser by means of an appropriate instrument under Seal.
Thus these two essential elements for the existence of a binding contract are pre-conditions for obtaining the Governor’s Consent under the Land Use Act of 1978.
Counsel then submitted that Exhibit M satisfied the two elements of a binding contract which led to the Governor’s consent therein. It was Counsel’s further Contention that promises Contained in Deeds are enforceable by the person in whose favour they are made. The contents of Exhibit M, he argued, were very clear and unambiguous, and being binding on the Appellant’s Attorney, moreso, when on the face of it there was nothing to show any mistake or error nor was any mistake or error relating to it communicated to the beneficiary therein, either at the time of its execution, or so soon there after.
It was Counsel’s further Submission that by Virtue of Sec. 132 (2) of the Evidence Act, no oral evidence can contradict or alter Exhibit M which was a Deed. As the alleged mistake was neither apparent on the face of Exhibit M, nor known to Adaze Imafidon at the time he transferred his interest in Exhibit M in 1994 to the Respondents who were third parties in good faith and without notice of any mistake. Appellant’s Attorney was Estopped to raise the issue of mistake to avoid the contract in exhibit M.
In resolving this issue, it must be noted that it is common ground that both Exhibits B & M were made on the 13th of November 1989, and 28th March 1990 almost in quick succession. (Just within a period of four months) Both Deeds were registered in 1989 and 1990 respectively and consent of the Governor obtained on both in the same year. It is also common ground, that in 1994, Four years after, the beneficiary in Exhibit M i.e. Adaze Imafidon relying on exhibit M transferred his interest and the property in dispute to the Respondents who commenced development of same soon thereafter, and completed development in 1995. Exhibit J written to the Respondents was only in 1997. It was only in 1999, that Appellant’s Attorney said he discovered that the transfer by Exhibit M to Adaze Imafidon of the property in dispute was a mistake.
What the foregoing position of the facts means is that from 1990, up to and including I999, a period of about Ten solid years, the Appellant’s Attorney intended to transfer, and did transfer the property in dispute to Adaze Imafidon. The issue of mistake never featured all through this long period of time, either in Exhibit M, or in any other document, or even in the mind of the Appellant’s Attorney. Indeed this later plea of mistake which ought to be more appropriate as a defence than a sword becomes more curious when the contents of Exhibit J written to the Respondents are read, Examined, and analyzed for purposes of Clarity and emphasis, and for the full import of that exhibit to be appreciated, I here in set it out in extenso, it reads:
“Exhibit J
10th November, 1997.
Dr. & Mrs. Daniel Amu,
C/o. Mrs. Amu
Ward 1A,
University of Benin Teaching Hospital,
Ugbowo – Benin City.
Dear Dr. & Mrs. Daniel Amu,
RE: TRESPASS TO OUR CLIENTS LAND AT UGBOWO, BENIN CITY
We write to you as Solicitors to Mr. Adaze Imafidon of c/o No.66, Mission Road, Benin City, and Miss Iriagbonse Okeaya-Inneh of NO.7, Okeaya-Inneh Street, New Benin, Benin City, who are hereinafter respectively referred to as “OUR CLIENTS”. This letter is issued on our Clients’ full briefing and instructions.
We have information that both of you have unlawfully encroached into our Clients’ land situate at the OKEAYA-INNEH ESTATE LAYOUT, ISIOHOR, NEAR UGBOWO HOUSING ESTATE, UGBOWO, BENIN CITY, and have continued you acts of trespass thereon inspite of stern warning by the landlord of the said land. We are also told that so soon after your unlawful activities on the land were noticed, the original land owner, KOLA S. OKEAYA-INNEH (Learned Senior Advocate of Nigeria) personally called on you and seriously warned you to desist from further acts of trespass upon the land he gave to our Clients. Both of you made promises to visit the SAN with a view of settling the matter, but uptil now, neither of you has visited nor vacated the land.
From your professional callings, one ordinarily expect that you’re both educated and that you would take all reasonable diligence in avoiding acts capable of underminding the legitimate interests of other people. We are surprised and disappointed that the reverse seems to be the case. Be that as it may, we cannot stand by on our side and watch you taking advantage of our Clients not being in the Country to unlawfully and clandestively take over their lands. This can never be as we are not known to ever compromise our Clients’ positions in all material particular.
NOW THEREFORE, take notice that our Clients have asked us to warn both of you on a final note to immediately vacate their above said land and to dismantle and remove any structure or structures you may have erected thereon. Further take notice that by this letter, you are given one month from the date hereof within which to quit our Clients’ land. Be advised that neither this office nor our Clients would be prepared to enter into any further discussions with you on this matter as this terms of this letter are so clear and unambiguous.
Please, be well advised.
Yours faithfully,
For: OKEAYA-INNEH SAN & CO.,
SGD.
O. F. ASEMOKHAI, ESQ.,
SOLICITOR.”
It should be noted that in Exhibit J quoted above, the Appellant’s Attorney wrote to the Respondents both on behalf of Adaze Imafidon and the appellants, and therein referred to the land in dispute as the property of both Adaze Imafidon and the Appellant therein referred to as Miss Iriagbonse Okeaya-Inneh which shows that at least by 1997, Appellant’s Attorney regarded Adaze Imafidon as owner of the land in dispute, only to turn round two years after in 1999 to claim to have discovered that the transfer in Exhibit M was a mistake.
The essence of the position of appellant’s Attorney is a plea of Scriptum predictum non est factum suum shortened ex turpi Causa. That is to say that the document was not followed by his mind at the time he made it.
The General rule is that a man is estopped by his Deed, and that a Party of full age and understanding is bound by his signature to a document, whether he reads or understands it or not. If, however, a party has been misled into Executing a Deed or signing a document essentially different from that which he intended to execute or sign, he can plead non est factum as a defence in an action against him.
See CHITTY ON CONTRACT 28TH EDITION PAGE 193 PARA 341.
But in most of the cases in which non est factum has been successfully pleaded, the mistake has been induced by fraud, even though it is not an invariable rule.
However, the burden of proof of that mistake is on the person relying on it. In my view, apart from mere general and bald plea of mistake, particulars of which was not given, nor was it apparent on the face of Exhibit M, it cannot be said that the appellant’s Attorney established this mistake, more so having regard to the long lapse of time of about Ten years and in the face of Exhibit J and its contents made Seven years after Exhibit M was made.
In any event, even if there was a mistake, the beneficiary in Exhibit M Adaze Imafidon was not part of it, at best therefore, it was a unilateral mistake and not mutual. Being a unilateral mistake, the remedy would have laid either in total Cancellation of the Deed Exhibit M, or in its rectification. The Appellant did not adopt any of these measures. So even on this Score, the issue of mistake is non sequitur.
Furthermore, as I said earlier, there was a long span of about Ten solid years between the execution of Exhibit M, and the alleged discovery of mistake leading to the belief in Adaze Imafidon that he had good title by Exhibit M, the property in dispute for which he altered his position without notice of any mistake by transferring the property to the Respondents in 1994 who also altered their position by purchasing the property from Imafidon without notice of the alleged mistake and developing same believing in their acquisition of good title within the said long period of time. These therefore being the Respondents within the purview of bona fide purchasers for value without notice.
The Appellant’s Attorney is therefore estopped by conduct by virtue of Sec. 151 of the Evidence Act to defeat Exhibit M. It is important to note that Exhibit M was also registered. I therefore agree with the submissions of learned Counsel for the Respondents that Exhibit M remain valid by reason of all I have said above.
In the Circumstance, I resolve issue NO.1 against the Appellant, in favour of the Respondents.
In respect of grounds 1 & 4 of the Grounds of Appeal, covered by 2nd & 3rd issues, learned Counsel for the appellant submitted that Exhibit B & M having been executed by a common Assignor i.e. Appellant’s Counsel in respect of plot 34 the land in dispute, each represented a binding Contract in which the consent of the Governor was required for purposes of Validity, and the fact that there was evidence of a unilateral mistake by the Appellant’s Attorney, the learned trial Judge ought to have considered the legal effect of this mistake on exhibit M. He contended that the learned trial Judge did not consider this effect, the failure of which affected a fair and just decision in the matter, and therefore occasioned a miscarriage of Justice.
Counsel further argued that Exhibit B having earlier been made in favour of the appellant, Exhibit M made by the same person over the same property was void ab initio, and therefore everything done in respect of Exhibit M including the Governor’s consent cannot give it Validity.
In reply to these issues, it was the Contention of learned Counsel the Respondents that the Governor’s consent on Exhibit M was Prior in time to his consent on Exhibit B, the former having been given on 27/8/89, and the later 7/11/89.
Thus, it was argued, the earlier consent of the Governor in Exhibit M had given priority to Exhibit M over and above exhibit B whose consent was later in time.
The effect, therefore, it was argued, was that there couldn’t have been a second consent by the Governor over the same property. Exhibit B in the Opinion of counsel was thus rendered void.
Counsel further argued that the learned trial judge considered the legal effect of the alleged mistake in the assignment of plot 34 in Exhibit M to Adaze Imafidon after the assignment in Exhibit B to the appellant when it considered the Validity of the two Contracts in Exhibits B & M, the Priority of the assignments in each of the two exhibits B & M in relation to the alleged mistake by its evaluation of the evidence of the appellant’s Attorney and PW4 under Cross examination.
Most of my observations in my Consideration of the first issue in this Judgment, apply to the two issues i.e. 2 & 3 argued by both Counsel. I need only add however that under the land use Act, it is not the consent of the Governor that determines the priority of any transfer of interest. The Land Use Act was not enacted to destroy pre-existing rights over land. It was enacted to build those rights on firm and fair tenure through out the States of this Country. It therefore does not destroy all existing titles and rights of possession of land. See the case of HARUNA V. OJUKWU (1991) 7 NWLR (PT.202) 207 AT 225.
See also OGUNLEYE V. ONI (1990) 2 NWLR (PT.135) 752 at 757.
It follows from the above principle that a Governor’s consent on a Deed purporting to transfer title to land will not operate to determine a preexisting interest in that land without a formal revocation of that interest in appropriate circumstance.
Therefore, the argument by the Respondent’s Counsel on priority of consent as a means of the validity of Exhibit M without more is faulty. I have however, already discussed the issue of the alleged mistake in the issuance of Exhibit M else where in this Judgment, and came to the Conclusion that having regard to the facts and circumstances of this Case as already identified, the fact of mistake was not made out. I therefore hold the view that the learned trial Judge considered Exhibit M and its effect on Exhibit B before reaching the decision to dismiss the Case of the appellant at the lower court. That issue is also resolved in favour of the Respondents.
In the result, this appeal fails, and it is hereby dismissed for lack of merit. The Judgment of the Court below is affirmed. There shall be N30,000.00 Costs to the respondents against the appellant.
Other Citations: (2008)LCN/2929(CA)
