Victor Ezeugo V. Nelson Ohanyere (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, JSC 

This appeal is against the judgment of Umezinwa, J., sitting in the High Court, Aba, delivered on the 2nd day of April, 1973, in Suit No. HOW/145/71 in which the plaintiff by his Writ of Summons and Statement of Claim, claimed: “An order of the court setting aside the said Deed of Lease registered as No. 41 at Page 41 in Volume 443 of the Lands Registry in the office at Enugu and for a just and proper Deed embodying the agreement of plaintiff and defendant as contained in their memorandum of the 22nd September, 1965 to be executed by the plaintiff and the defendant.”

After considering the evidence led before him, the learned trial Judge dismissed the claim and found in favour of the defendant in a considered judgment the concluding portion of which reads: “I have carefully examined Exhibit ‘A’ and Exhibit ‘D’ and disagree with the learned counsel for the plaintiff that the two documents differed materially and fundamentally.   In any event Exhibit ‘D’ is the binding agreement between the parties and I am satisfied that the contents were read over to the plaintiff and he consented to all the clauses in Exhibit D including Clauses 3(a) and 4. I do not agree with the submission of the learned counsel for the plaintiff that Clause 4 in Exhibit D amounts to a grant in perpetuity. This offensive clause to the plaintiff provides as follows:   “The Lessor hereby covenants with the lessee that whenever this instrument is determined by effluxion of time or by breach of a material term as herein provided to grant to the lessee at his request and on payment of all arrears of rent (if any) or on performance of any condition that might have been breached, a tenancy containing the like provisions as herein contained including the present covenant for renewal.”   “In the final result, I am of the view that plaintiff has not proved his case against the defendant to entitle him to judgment.

The action is hereby dismissed with costs to the defendant assessed and fixed at N105 i.e. 50 guineas.” The plaintiff/appellant was aggrieved by this decision and brought his appeal to this court. Several grounds were filed in the Notice of Appeal but only three grounds – grounds la, 1b, and 3 were argued before us. These grounds read as follows:  

“1 (a) The learned trial Judge misdirected himself in fact and in law in holding that the bone of contention between the parties is as to the execution of Exhibit ‘D’ and that a resolution of that contention one way or the other disposes of the whole case as the correct issue between the parties is as to whether or not Exhibit ‘D’, contains terms other than the true agreement of the parties as embodied in their memorandum Exhibit ‘A’ and that it is that issue that calls for a determination. (b) The learned trial Judge misdirected himself in law in holding that there is no difference between the terms contained in Exhibits “A” and “D” whereas it is largely evident  from the documents themselves that clauses 3(a) and 4 in Exhibit “D” make Exhibit “D” materially and fundamentally different from Exhibit ‘A’.

Clause 3(a) in Exhibit ‘D’ destroys the whole purpose of the agreement between the parties and Clause 4 in the said Exhibit “D” not only deprives the plaintiff/appellant of his family land of radical benefit he contracted for, but also deprives him of his family land by turning the agreement into a perpetually renewable lease.   3. That Clauses 3(a) and 4 in Exhibit “D” make it materially and fundamentally different from the true Agreement of the parties as contained in their memorandum dated 22nd September, 1965 Exhibit “A” and as such the plaintiff/appellant is ex debito justiciae entitled to relief in terms of his claim. The learned trial Judge was therefore in error in dismissing the plaintiff’s/appellant’s claim.”  

Mr. G. R. I. Egonu who appeared as counsel for the appellant argued all the above grounds together, the substance of his complaint being that two clauses, clause 3(a) and clause 4 in the Deed, Exhibit D did not form part of the agreement Exhibit A from which Exhibit D, the Deed of Lease, was drawn up by their solicitor. These two clauses, counsel submitted, substantially altered the intention of the plaintiff/appellant, if not both parties, when the agreement Exhibit A was entered into. He contended that the two clauses – clause 3(a) and clause 4 were added without the consent, instruction agreement and or concurrence of plaintiff/appellant and in terms the offending clauses read:   “3. (a) That the lessee may use the demised land for any purpose he likes 4. The lessor hereby covenants with the lessee that whenever this instrument is determined by effluxion of time or by breach of a material term as herein provided to grant to the lessee, at his request, and on payment of all arrears of rent (if any) or performance of any condition that might have been breached, a tenancy containing the like provisions as herein contained including the present covenant for renewal.”   He conceded that Exhibit D was executed by the plaintiff/appellant but contended that though he had his eyes wide open, he did not appreciate the full legal effect of the contents of the deed. He observed that this failure to train his analytical mind on the contents of the Deed before signing it (execution), arose out of the implicit trust and confidence that he reposed in the defendant/respondent. He contended that the respondent’s representation to the appellant, that the Deed of Lease, Exhibit D reflected only the terms agreed on as reflected in Exhibit A, took his mind off the contents of the deed before signing. He stressed the fact that it was not until long after execution when he saw the Deed again that he came to realise that he had set his hands to two of the terms that were never discussed, let alone agreed on.

Learned counsel also submitted that a mistake of fact had occurred and this was enough ground to support a plea of non est factum to set aside the Deed or rectify the terms of the Deed.  He finally submitted that it was the learned trial Judge’s erroneous view of the effect of the two offending clauses that earned them his order of dismissal. He contended that contrary to the learned trial Judge’s view that the two documents did not differ materially and fundamentally, the two offending clauses in Exhibit D already referred to above altered the character of the agreement in Exhibit D to make it quite different from the agreement in Exhibit A.   In reply, Mr. R. A. B. Abasi, learned counsel for the respondent submitted that the plea of non est factum was not available to the appellant both on his pleadings and the evidence. He drew the attention of court to the evidence of the appellant’s witness (P.W.3) which confirms the respondent’s contention that the Deed of Lease Exhibit D correctly reflects the agreement of the parties.

Finally, he contended that clauses 3(a) and 4 in Exhibit D which are complained of did not alter the character of that document to make the transaction different from that contemplated by the parties. We have ourselves examined the documents Exhibit A and Exhibit D. We observe that Exhibit A is headed “Agreement”. The first paragraph is a declaration that appellant is owner of the property and that he on behalf of himself, his heirs or successors leased the property as from that day 29th September, 1965 for a period of 99 years to the respondent and his heir or heirs.   The next paragraph is the agreement by the parties as to the annual rent payable. It was fixed at £20 or an award of scholarship in the college every 5 years. Then came an acknowledgment by the appellant of payment of £200 to cover ten years rent in advance by the respondent – a payment made before the signing of the agreement. Thereafter it was agreed that the appellant should refund all expenses to the respondent, should his title be faulted or found defective. The agreement was concluded by a renewal clause which reads:   “At the expiration of the 99 years, renewal of this lease will be on the same term as this without any change whatsoever, and so on.” This agreement was in effect a lease for 99 years from 29th September, 1965.

An examination of Exhibit D shows that it was a Deed of Lease for a term of 99 years from the 1st of December, 1966 in respect of a parcel of land measuring about 55.48 acres and delineated on plan No. VE/29/65 granted in consideration of the sum of £200, ten years rent paid in advance and the annual rent of £20. The annual rent stipulated is the same as in Exhibit A, but the first payment after the payment of the £200 rent fell due on 31st December, 1976. The absence of any complaint as to the date of commencement of the term of 99 years stipulated in Exhibit D is not without significance. The impression arising from comparison of the two documents is that Exhibit D contains substantially the terms spelt out in Exhibit A with minor variation as could be seen above. The main question raised before us is whether the appellant can be heard to say that Exhibit D is not his Deed and avoid it.   Before dealing with the submissions of counsel, it is desirable to set down the facts of the case in their true perspective.

Pleadings were, on the order of the court, filed and duly delivered; and the relevant facts pleaded by the plaintiff/appellant in his Statement of Claim are contained in paragraphs 3, 5 and 6. They read as follows: “3. On the 22nd September, 1965, the plaintiff and the defendant signed a memorandum setting out the terms of the lease and particularly the development to be effected on the aforesaid land, and the defendant undertook to engross the said terms in a Deed for execution by the plaintiff and the defendant.  

5. Some months later, the defendant produced to the plaintiff at Oguta three copies of a Deed and alleged to the defendant that the Deed embodied exactly the terms agreed by both the plaintiff and the defendant as contained in the aforesaid memorandum of the 22nd September, 1965. The defendant requested the plaintiff to execute the three copies of the Deed. 6. The plaintiff could not and did not appreciate the contents of the Deed but relying on what the defendant had told him as stated herein above, the plaintiff executed the deed.”  

The defendant/respondent in his Statement of Defence admitted the execution of the agreement and the Deed of Lease but in circumstances different from those set out by the plaintiff/appellant in his Statement of Claim. In particular, paragraphs 7, 9, 10 and 12 read: “7. The defendant denies paragraph 3 of the Statement of Claim. In further reply thereof the defendant will say that the memorandum mentioned in paragraph 3 of the Statement of Claim did not contain and did not state all the terms or covenants of the agreement between the plaintiff and the defendant.

This memorandum was not a final agreement and was not intended to be so. The memorandum was prepared before both the defendant and the plaintiff consulted and gave final instructions to a Solicitor, Eze Nwauwa Esq. 9. The Deed of Lease dated the 3rd of December, 1965, prepared by the solicitor, in accordance with the terms of the agreement between the defendant and the plaintiff and embodying the exact and accurate instructions of the defendant and the plaintiff to the said solicitor, Eze Nwauwa, Esq. was delivered to the plaintiff and the defendant in the solicitor’s  Chambers at Enugu on the same 3rd of December, 1965 after the said solicitor had read same over to the defendant and the plaintiff and their witnesses and both the defendant and the plaintiff confirmed the contents to be correct and in accordance with their instructions and intention. Both the defendant and the plaintiff themselves read over the Deed of Lease. Neither the defendant nor the plaintiff objected to any term or terms therein contained.   10. On the same 3rd day of December, 1965, the defendant and the plaintiff together with their witnesses, took the Deed of Lease to the Justice of the Peace, Mr. E. O. Emelike at the Divisional Office, Enugu for execution.