3PLR – OBEDIAH ASHAYE V. MRS V I. AKERELE
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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OBEDIAH ASHAYE
V.
MRS V I. AKERELE
SUPREME COURT OF NIGERIA
21ST DECEMBER, 1966
(SC.49/1966)
OTHER CITATIONS
LN-e-LR/1966/36 (SC)
BEFORE THEIR LORDSHIPS:
BRETT, AJEGBO AND LEWIS, J.J.S.C.
REPRESENTATION
A.O. SIKUADE – for the appellant
Chief O. MOORE – for the respondent
ORIGINATING COURT
HIGH COURT OF LAGOS STATE [LD/556/63 (ADEDIPE, J. Presiding)
ORIGINATING COURT
Real Estate Law, Women and Children
OTHER ISSUES
REAL ESTATE/LAND LAW:- Family land – Sale – Consent Role of family head – Whether can be compelled – Whether a member of the family who brought a successful action to establish that a disputed land was vested in the family and had levied execution against third parties in possession could validly convey the land under a sale agreement without consent of family – Legal effect of such purported sale – Whether buyer is entitled to rescission – Whether subsequent conveyance of the same portion of land to that member by the family cures the transaction
COMMERCIAL LAW – CONTRACT: – Parole/unwritten contract – How proved – Contract for sale of land – Where agreement as to price is disputed – When court would not find mistake
COMMERCIAL LAW – CONTRACT – CONTRACT FOR SALE OF LAND – :- Necessity of a good title on date of sale – Where vendor was lacking in good title on the date of agreement – Whether rectified by securing good title subsequently – Whether buyer is entitled to rescission of contract for sale of land where vendor had no good title – Whether plaintiff has a duty to investigate title beforehand – Duty of vendor to disclose defects in title
CUSTOMARY LAW: – Sale of family land – Role of family – Purported change to customary law practice relating to sale of land and consent of family head – Need to plead and prove same – Effect of failure thereof
NONPROFIT/CHARITY LAW: – Right to sue and be sued over contract – Whether extends to contract where none of its trustees was a party – Nonprofit being nonsuited – Whether proper order
CHILDREN AND WOMEN LAW: – Women and Real Estate – Women in business – Women and customary law – Women and marriage – Family land – Where wife is member of family but not the Head thereof – Whether husband can convey land belonging to wife’s family to third party without the consent of wife’s Family Head – Validity of conveyance – Whether defect cured by subsequent conveyance of land to husband by wife’s family – Implication for buyer’s suit to rescind and recover purchase price against wife
PRACTICE AND PROCEDURE – ACTION – PARTIES: Commencement of suit – Parties to an action over a disputed contract – Whether a nonprofit can be a party to court proceeding relating to a contract in which none of its trustees was party
CASES REFERRED TO:
In re Bryant and Barningham’s Contract (1890) 44 Ch. D. 218
Harold Elliott and H. Elliott (Builders), Limited v. Pierson [1948] Ch. 452
Syne v. Synge [1894] 1 Q.B. 466
Reeve v. Berridge (1888) 20 Q.B.D. 523
Soper v. Arnold (1889) 14 App. Cas. 429
Carlish v. Salt [1906] 1 Ch. 335
MAIN JUDGMENT
LEWIS, J.S. C. (delivering the judgment of the Court):
This is an appeal from the decision of Adedipe, J., in the Lagos High Court on the 19th of October, 1964, in which he dismissed the plaintiffs claim with 40 guineas costs.
The plaintiff by his writ of summons claimed-
“The plaintiff, for himself and as a Registered Trustee of the Hope Rising Voluntary Fund Society, claims from the defendant the sum of £750 being:-
(a) for consideration which has wholly failed or
(b) special damages for breach of contract or
(c) an amount received from the plaintiff on a mistake of fact or alternatively,
(d) amount fraudulently received by defendant from plaintiff by deceit.
Defendant has failed to pay in spite of repeated demand.”
The claim under paragraph (d) was abandoned and the claim in the High Court and before us has been rested on paragraphs (a) to (c) of the writ of summons, save that it was established in the High Court that the claim was made by the plaintiff personally and that the Hope Rising Voluntary Fund Society on whose behalf the plaintiff also claimed as a trustee had, in fact, no right of action and it has not been argued before us that that finding was wrong.
The plaintiff was in occupation of a piece of land situated at Ishaga Road, Surulere as described on a plan attached to the Statement of Claim. Whilst in occupation the plaintiff was approached in 1957 by Dr Akerele, the husband of the defendant, and warned by him that the defendant owned the land on which the plaintiff had his buildings. The defendant had been successful in the High Court of Lagos, when suing as a member of the Abayomi Anjorin family, in claiming that the land, a portion of which included the land in dispute in this appeal before us, was vested in that family and this decision was subsequently upheld on appeal by this Court. The defendant as a result of that decision levied execution by way of a writ of ejectment on the plaintiff and the plaintiff on the 11th of July, 1957, when this happened on the advice of his then solicitor went together with Mr Onasanya (2nd P.W) to see Dr Akerele and a meeting then took place out of which this dispute has arisen. The plaintiff claimed that Dr Akerele on behalf of the defendant agreed to sell the land for £750 and that whilst no written agreement was entered into a cheque for £750 was paid to the defendant’s solicitors on the same day and endorsed over by them not to the defendant but to Dr Akerele. The plaintiff sought a receipt for the payment of £750 as none was then given but only after seeking the help of the Attorney-General of the Federation was a receipt eventually given over 21/2 years later on the 14th of March, 1960. This receipt stated that the £750 was part payment of £3,000. The receipt did not say that the part payment was in respect of the sale of land but in a covering letter from the solicitors of the defendant it was stated to be “part payment for land.” The plaintiff maintained that the sum of £3,000 had never been agreed and that £750 was the full agreed purchase price, so an action was in 1960 commenced against the defendant to recover the £750 but this action was brought not by the plaintiff but by the registered trustees of the Hope Rising Voluntary Fund Society who had paid the £750 on behalf of the plaintiff. The plaintiffs in that action in the Lagos High Court were nonsuited on the 30th of September, 1963, as the trustees were found not to be parties to the alleged contract. The plaintiff thereupon commenced in the High Court the action upon which this appeal is brought.
Now the defendant in her Statement of Defence stated that with regard to this meeting of the 11th of July, 1957-
“5. The plaintiff during the execution negotiated with the defendant for the release of the property paying therefore the sum of £750 (Seven hundred and fifty pounds) for such release.
- The defendant further avers that she expected the plaintiff to approach her for the purchase of the land the subject of the execution, but he made no such approach.”
The defendant was not present at the meeting but Dr Akerele gave evidence at the hearing of the action on her behalf and alleged that he informed the plaintiff and the 2nd P .W. that he would not release the attachment unless £3,000 was paid, but on their pleading he agreed to allow this to be paid by instalments and said that if the £750 was paid by the plaintiff at once he could go back into his house and this was what was agreed. He said the receipt given in March, 1960, by the defendant was written on his instructions, as in the meantime on the 27th of July, 1957, only 16 days after this meeting, the head of the Abayomi Anjorin family joined with the defendant in her capacity as a principal member of that family and with the full consent of all the members of the family to convey an area of 2,587 acres including the property in dispute in this action to Dr Akerele as he had spent £2,000 in enabling the action which had just then been successfully brought in respect of the land to be taken and had also paid £5 to the grantors.
The learned judge in the High Court said in his judgment-
“In the absence of any written document it is difficult to say for certain what the agreed purchase price was. The plaintiff said the amount was £750 while Dr Akerele said that it was £3,000 for the release of the house and the land.”
and later said-
“I do not believe that there was any mistake as regards the purchase price. It is most likely that the plaintiff in his anxiety to get back the keys of his house and to get his tenants and his belongings in, agreed to pay £3,000, which he later considered to be exorbitant. The plaintiff did not lead any evidence to show that he asked the defendant to convey to him and that she refused or was unable to do so.”
He further held-
“The obligations undertaken by a vendor on a sale of land are to show a good title and to convey the land sold. The defendant and her husband in my opinion have a good title and are willing to convey, but the plaintiff has not paid the agreed purchase price.”
Now the case for the appellant is that the learned judge was wrong to come to his finding that there was a sale of the land for £3,000 and that £750 was a part payment in respect thereof rather than that the full sale price was for £750, and it was further argued on his behalf that the plaintiff was entitled to claim damages for breach of contract because the defendant was unable to give a good title. Mr. Sikuade for the appellant urged upon us that the defendant must be bound by her pleading that the £750 was nothing to do with the purchase of the land, about which she alleged in her pleading that the plaintiff never approached her, but said that it was solely to lift the execution and enable the plaintiff to get back into his house upon the land. Counsel maintained that the learned judge was also wrong to accept the evidence of Dr. Akerele, that £3,000 was the agreed price for the sale of the property; when this was never pleaded and when it was in conflict with the evidence of both the plaintiff and the 2nd P .W. who were the only other persons present at the meeting of the 11th of July, 1957.
Chief Moore for the defendant asked us to find that there was no total failure of consideration as the plaintiff had been allowed back into the property and he urged us to find that the £750 was paid solely for that right of re-entry. Nonetheless, he conceded that it was shown on the record that under cross-examination not only did Dr Akerele make conflicting statements as to whether he was acting in his own right or as in effect the agent of the defendant, but also stated that the agreement was for £3,000 of which the £750 was part payment, rather than that the £750 was just to lift the execution. Chief Moore, however, informed us that he was willing to advise his clients that a conveyance be made to the plaintiff for the £750 if the plaintiff submitted a conveyance, but Mr Sikuade rejected this offer as he claimed that his client was entitled to rescind as the defendant had not a good title.
In our judgment, having regard to the pleadings, when the learned judge found that the £750 was not for the release of the land as claimed by the defendant, but for the sale of the land as alleged by the plaintiff, then on the evidence before him and having regard to the failure of the Defence to plead as to the alleged contract for £3,000 he ought to have found that the plaintiff had made out his claim that the contract was for the sale of land for £750, rather than for £3,000. Nonetheless, we consider Chief Moore is right in his contention that there was no total failure of consideration as the plaintiff was allowed back after the meeting of the 11th of July, 1957 into possession, which possession remains undisturbed to this present day.
Mr Sikuade, however, maintains that the defendant had not got a good title when the agreement to sell the land was made on her behalf on the 11th of July, 1957 by Dr Akerele and that he could succeed for breach of contract, as the allegation in the writ of mistake of fact does not in our view arise in this respect. In our view, Chief Moore is not correct when he argues that the land was on the 11th of July, 1957 vested in the defendant, because on that day it was established that the land was the family property of the Abayomi Anjorin family and the fact that the defendant may have brought a successful action to establish that this land was vested in the Abayomi Anjorin family and had levied execution as a result thereof did not establish that she could convey the land to the plaintiff in her own right. Indeed, the conveyance to her husband on the 27th of July, 1957 (Ex. K) amply demonstrates this as it was not made by herself in her own right but by the head of the family in conjunction with the defendant as a principal member of the family and with the consent of all the other members of the family. No evidence was adduced to establish that the defendant had the right to compel the head of the family to convey and indeed it is well established as the normal rule that whilst a head of the family may be prevented from disposing of the family land without the consent of the family the head of the family cannot be compelled to dispose of family property and it has not been pleaded or proved that any different rule prevails in the Abayomi Anjorin family. Now this being so the defendant did not in our view have a good title or the right to compel others to make a good title on the 11th of July, 1957, and having regard to Forrer v. Nash 35 Beav. 167 where Romilly M.R. at page 171 said-
“I am of opinion that when a person sells property which he is neither able to convey himself nor has the power to compel a conveyance of it from any other person, the purchaser, as soon as he finds that to be the case, may say, ‘I will have nothing to do with it.’ The purchaser is not bound to wait to see whether the vendor can induce some third person (who has the power) to join in making a good title to the property sold.”
and In re Bryant and Barningham’s Contract (1890) 44 Ch.D. 218 where it was held that a purchaser who had contracted with vendors as trustees for sale and paid a deposit could recover that deposit when upon investigation of title it appeared that the vendors had no power of sale until the death of the existing tenant for life so that notwithstanding the offer of the trustees to obtain a conveyance from the tenant for life the purchaser could not be compelled to enter into a new contract with the tenant for life, and also having regard to Harold Elliott and H. Elliott (Builders), Limited v. Pierson [1948] Ch. 452 where Jarman J. (as he then was) said at page 456-
“The law is that a vendor who has or can compel the assurance of all necessary interests in the subject-matter of the sale may enforce the contract as-see for instance the decision of Astbury J. in In re Hailes and Hutchinson’s [1920] 1 Ch. 223, where the cases are collected-. .”
We hold that the plaintiff was entitled to recover the £750 for breach of contract.
Moreover, even if we had taken a different view of the law in this respect it was undoubtedly the position that on the 27th of July, 1957, by joining in conveying the property to her husband the defendant ceased thereafter to have a good title or to be able to compel a good title and as the act was of her own volition without the consent of the plaintiff it would fall within the authority of Syne v. Synge [1894] 1 Q.B. 466, so that the plaintiff could recover as she had put it out of her power to perform the contract and so was in breach of contract.
Chief Moore asked us to hold, when the legal position as we have set out in this judgment was put to him by this Court, that accepting the law as we have set out in this judgment the plaintiff was still not entitled to succeed as he had by his conduct investigated title and accepted it and was thus bound. We do not accept that solely because the plaintiff may have discovered that the defendant had been successful in her action on behalf of the Abayomi Anjorin family and that he, therefore, sought to deal with her when she caused execution to be levied upon him that thereby he had accepted her title. The law, as we see it, is that it is for the defendant to establish her title not for the plaintiff to investigate it beforehand. It is the duty of the vendor to disclose defects in title and non-disclosure however innocent will enable the purchaser to rescind as was shown by Carlish v. Salt [1906] 1 Ch. 335. The duty to disclose defects was similarly established, albeit in respect of a sale of a leasehold, in the case of In re White and Smith’s Contract [1896] 1 Ch. 637 where it was said by Stirling J., page 643-
“if, however, it be (as I think it is) the duty of the vendor to disclose the state of his title, and not the duty of the purchaser to inquire into it, and if the purchaser’s attention is not called to the possible existence of onerous covenants either by the vendor himself or by information otherwise acquired, I think that a business man of ordinary caution might abstain from examining a lease in the absence of any intimation on the part of the vendor that he will not be met with a refusal if he applies to examine the lease before sale,”
and in so holding he was following the decision of Reeve v. Berridge (1888) 20 Q.B.D. 523 where Fry L.J. said at page 528-
.”..we cannot but observe that there is great practical convenience in requiring the vendor, who knows his own title, to disclose all that is necessary to protect himself, rather than in requiring the purchaser to demand an inspection of the vendor’s title deed before entering into a contract, a demand which the owners of property would in some cases be unwilling to concede, and which is not, in-our opinion, in accordance with the usual course of business in sales by private contract.”
The case of Soper v. Arnold (1889) 14 App. Cas. 429 was in respect of quite a different situation as there the title was specifically put to the purchaser by the vendors and accepted by him so that when he later discovered that the title was bad he could not then recover the deposit made as a result of the contract for the sale of the land. The defendant here did not establish her title to the plaintiff and he acted to rescind the contract as soon as he discovered this as well as discovering that she was claiming it was a contract for £3,000 rather than for £750. We accordingly find that the plaintiff has established his claim for the return of the £750.
We set aside the decision of the High Court and enter judgment therein for the plaintiff with 66 guineas costs to be paid to him by the defendant. If the plaintiff has paid to the defendant the 40 guineas costs that he was ordered to pay by the High Court then we order that this be refunded, and we further order that the defendant do pay to the plaintiff 70 guineas costs in respect of this appeal.
