3PLR – KUFORIJI AND ANOR V. V.Y.B NIGERIA LIMITED

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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KUFORIJI AND ANOR

V.

V.Y.B NIGERIA LIMITED

SUPREME COURT OF NIGERIA

12TH JUNE, 1981.

SUIT NO. SC 85/1980

3PLR/1981/22 (SC)

 

OTHER CITATIONS

(1981) 6-7 S.C. 25

 

BEFORE THEIR LORDSHIPS:

SOWEMIMO, J.S.C.

IDIGBE, J.S.C.

OBASEKI, J.S.C.

NNAMANI, J.S.C.

UWAIS, J.S.C.

 

BETWEEN

SIMEON OLUSOJI KUFORIJI

DORCAS BOLAJOKO A. KUFORIJI

AND

1. Y. B. (NIGERIA) LIMITED

 

REPRESENTATION

1. A Adesina for the Appellant.

Chief B. Kehinde, SAN. (with him O. J. Idigbe) for the Respondent.

 

OTHER ISSUES

FAMILY LAW AND PROCEDURE:- Existence and continuation of marriage – Proof of – Existence/Continuation of monogamous marriage evidenced by a Marriage certificate – How proved – Relevant considerations

FAMILY LAW AND PROCEDURE:- Customary law marriage celebrated during pendency of a monogamous marriage – Validity thereof – Standard of proof in civil proceedings – Whether same for the criminal prosecution of a charge of bigamy

FAMILY LAW AND PROCEDURE:- Section 48 of the Marriage Act – Offence of bigamy – How proved – Celebration of customary law marriage during the pendency of a monogamous marriage – Where alleged during civil proceedings – Whether the burden of proof must be discharged in a manner no less than is required to convict in criminal trials

FAMILY LAW AND PROCEDURE:- Identity of a party named in a Marriage Certificate – Need for same to be established by proper, admissible, credible evidence

FAMILY LAW AND PROCEDURE:- Proof of Marriage as distinct from proof of Identity of party to a marriage – Essentials and relevant consideration

EMPLOYMENT AND LABOUR LAW:- Valued Employee – Incentives towards greater performance – Agreement for sale of property to married female employee and spouse to secure more suitable and comfortable accommodation for her – Whether agreement can be set aside on ground that marriage between employee and spouse was invalid

COMMERCIAL LAW – CONTRACT:- Rescission of contract – What needs to be proved – Agreement for joint purchase of property by married couple – Rescission of same on ground of mistake/misrepresentation as to validity of marriage – What needs to be proved

COMMERCIAL LAW – CONTRACT:- Claim that agreement be set aside on the ground of mistake of facts –  Where the mistake is unilateral or made by one party – Need to prove alleged mistake was induced or caused by any action on the part of the defendant

COMMERCIAL LAW – CONTRACT:- Rescission of contract on ground of misrepresentation – Where proved – Materiality of representation – Whether a misrepresentation is legally harmless if the plaintiff did not allow it to affect his judgment – Whether declaration of intention to affirm the contract after becoming aware of the misrepresentation translates to loss of the right to rescind

COMMERCIAL LAW – CONTRACT:- Marriage or status of parties to a contract – When deemed irrelevant to a transaction

CHILDREN AND WOMEN LAW: Women and Real Estate – Claim for rescission of agreement for joint-purchase of property with husband –  Women and Justice Administration – Proof of existing monogamous marriage with third party nullifying subsequent customary law marriage – ­Women in Employment – Housing transaction as incentive towards greater job performance

PRACTICE AND PROCEDURE:- Evidence – Marriage Certificate – Admissibility under Evidence Law Lagos State – Whether can be validly produced and tendered by counsel at the Bar instead of a witness

PRACTICE AND PROCEDURE:- Evidence – Marriage certificate issued in a Commonwealth country – Presumption of regularity in favour of such documents under the Evidence Law

PRACTICE AND PROCEDURE – APPEAL:- Findings of fact – When appeal court will disturb findings of facts of trial court

PRACTICE AND PROCEDURE – COURT: Civil proceedings – Whether it is an abuse of the process of court to sue for rescission only to turn round to affirm the contract of sale to the person who made the misrepresentation

PRACTICE AND PROCEDURE:- Evidence – Existing monogamous marriage – Proof of – Burden of proof – Need to strictly prove identity of parties to the marriage, continuation of life of both parties and ongoing status of marriage – Relevant considerations

 

 

 

MAIN JUDGMENT

OBASEKI, J.S.C.: (Delivering the Judgment of the Court):

The appellant herein, who was the first defendant in the High Court of Lagos State, Lagos Judicial Division, has brought this appeal against the decision of the Federal Court of Appeal delivered on the 23rd day of April, 1980 in an appeal he lodged to that Court against the decision of the High Court (Dosunmu, J. as he was then).

 

The claims endorsed on the writ of summons filed in the High Court were for:

“(i)     A declaration that the Deed of sub-lease Title No. MO.9261 dated 18th February, 1971 is null and void.

(ii)     An order that the Register of Titles be rectified by deleting all entries relating to the sublease from the Register.

 

(iii)    A declaration that an agreement made on the 18th day of February, 1971, between the plaintiff of the one part and the defendants of the other part in which the plaintiff promised to sell and assign the residue of the term of years in the land comprised in Title No. MO. 1647 is void or (in the alternative) voidable.

(iv)    In the alternative to claim (iii), the plaintiff further claims an order to have the said agreement rescinded or set aside.

(v)     Such further order or orders as the court may direct.”

 

Pleadings, on the order of the Court, were filed and served.

 

The main complaint of the plaintiff/respondent which is a limited liability company incorporated in Nigeria, was the representation as to the marital status of the 1st defendant/appellant, Mr. Simeon Olusoji Kuforiji, in relation to the 2nd defendant and this is contained in paragraph 7 of the statement of claim. For a better appreciation of the facts and ease of reference, paragraphs 4, 5, 6, 7, 8 and 9, 10, 11, 12 and 13 will be set out hereunder.

“4.     The plaintiff is the registered owner of the residue of the term of years in the land comprised in Title No. MO. 1647 which is hereinafter referred to as ’the said property’ and which was the subject matter of an agreement made on the 18th day of February, 1971 “Between the plaintiff of the one part and the defendant of the other part.” The agreement is hereinafter referred to as ‘the aforementioned agreement” and is for the sale and assignment of the said property.

 

5. Towards the end of 1969, the plaintiff, pursuant to its intention of finding a suitable accommodation for the 2nd defendant, decided to offer to sell the said property to the 2nd defendant at the specially favourable price of N36,000.00 in order to assist her, as a highly valued employee, to secure more suitable and comfortable accommodation near her place of work and from where she can be able to have easy access to the place where she normally performs her duty as employee of the plaintiff company. The plain-tiff will rely on the letter dated 1st December, 1969 addressed to the second defendant offering to sell the said property to her.

 

6. In support of the averment that the amount of N36,000.00 was a specially favourable price, the plaintiff will rely on the fact that on the 12th November, 1969, a firm of estate Agents (Las AND Co. Ltd.) made an offer on behalf of one of their clients to purchase the said property for N44,000.00.

 

7. Thereafter, the 2nd defendant orally and falsely represented to the plaintiff that the 1st defendant and herself were husband and wife and both defend-ants confirmed the said representation in the description they gave themselves in the above-mentioned agreement which was prepared by a legal practitioner of their choice.

 

8. By reason of the said representation, the plaintiff was induced to agree to continue the negotiation for the sale of the said property to the 1st and 2nd defendants jointly on the very favourable terms originally meant for the 2nd defendant alone.

 

9. In the alternative to paragraph 8, the plaintiff avers that at all material times and by reason of the said representation, it acted under a mistake of fact in consenting to the terms of the aforementioned agreement.

 

Particulars of Mistake

(a)     The plaintiff thought that is was entering into a contract with the second defendant and her husband whilst in fact the plaintiff was entering into a contract with the second defendant and the man whose marriage to another woman, Phebean Yetunde Kuforiji (nee Majekodunmi remains valid and subsisting.

 

(b)     In support of paragraph (a) hereof, the plaintiff will rely on marriage certificate No. WD1111940 issued by the County Borough of West Ham, London, England on the 26th of December, 1958.

 

10(i) The second defendant reported to the plaintiff that she was unable to obtain a loan of the sum of N36,000.00 on suitable terms to enable her pay the purchase price of the property and the plaintiff accordingly decided to assist her by agreeing to accept the payment of the said purchase price by an initial instalment of N4,000.00 and ten subsequent instalments of N3,200.00 per annum subject to the payment of 4% Interest annually.

(ii)     The plaintiff avers that the terms of repayment were made as a special favour to the 2nd defendant for the reasons already stated in paragraph 5 of this statement of claim. In support of this averment, the plaintiff will rely on the fact that the interest of 4% is well below the prevailing commercial rate of between 8% and 10%.

 

11. By reason of the misrepresentation and the confirmation of the same pleaded in paragraph 7 of this statement of claim and at the special request of the 2nd defendant the plaintiff, by letter dated the 9th day of January, 1970, informed the defendants of its decision stated in paragraph 10(i) here-of.

 

12. The plaintiff executed a Deed dated the 18th day of February, 1971, purporting to sub-lease the said property to the defendants for a term of twelve years.

 

13. The said deed was not in the form prescribed by the Registration of Titles Law and is accordingly null and void.”

 

Only the 1st defendant filed a statement of defence. The 2nd defendant filed none and like the first defendant, gave no evidence at the hearing. The pertinent paragraphs of the statement of defence which joined issue with the plaintiffs are 3, 4, 5, 6, 7, 11, 13, 16, 17 and 18 and read as follows:

“3.     That the defendant denies paragraph 3 of the plaintiffs’ statement of claim and puts the plaintiffs to strict proof thereof.

 

4. Save to admit that the purchase price of the residue of the term of years in the land comprised in Title No. MO. 1647 was N36,000.00 in the Agreement of 18th February, 1971, the first defendant denies paragraphs 5 and 6 of the plaintiffs’ statement of claim.

 

5. The first defendant denies paragraphs 7, 8 and 9 of the statement of claim and avers that in any event the said paragraphs are irrelevant and go to no issue.

 

6. The first defendant states that the plaintiffs were in no doubt about the identity of the defendants and at all material times knew that the defendants were married under Native Law and Custom in March, 1969 long before the agreement with the plaintiffs, and that they have lived together as such ever since and that three children have in that period been born to them.

 

7. Save to admit that the plaintiffs by their letter of 9th January, 1970 accepted the defendants’ offer of N36,000.00 purchase price and also accepted the defendants’ initial instalment of N4,000.00 and 10 subsequent instalments of N3,904.00 per annum at 4% interest as suggested by the plaintiff and accepted by the defendants, the 1 at defendant denies paragraphs 10 and 11 of plaintiffs’ statement of claim.

 

8. The 1st defendant avers that the 2nd defendant was employed as Miss Majiyagbe and Deputy Financial Controller in September, 1968 and secured a 3-bedroom accommodation at 11 Calcutta Crescent, Apapa, less than a metre from her place of work. On the arrival of the 1st defendant in Nigeria from London in February, 1969, the defendants married under Native Law and Custom and the 2nd defendant accordingly informed the plaintiffs of the change of name to Mrs. D.B.A. Kuforiji.

 

11. An agreement for sale dated 18th February, 1971 and a deed of sublease for 12 years of the same date were executed by the plaintiffs and the defendants. A joint application for the Lagos State Governor’s consent dated 27th February, 1971 was similarly executed by the parties.

 

13. The plaintiffs very well knew before any negotiations for the sale of the said property stated the true relationship between the defendants and there were no false representations of inducements as alleged or at all.

 

16. About December, 1975, the balance of N16.000.00 on the purchase price was paid to the plaintiffs and accepted by them under the sale.

 

17. In collusion, the plaintiffs and the 2nd defendant submitted through Messrs. Irving and Bonner, an application to the Chief Lands Officer, Lagos State Government to register the final assignment in favour of the 2nd defendant only. This attempt to expropriate the 1st defendant’s interests was only thwarted and that defendant successfully objected verbally and in writing to the registration of the said property in the name of the 2nd defendant only and the present action is yet another ruse by the plaintiffs and the 2nd defendant to achieve the same end.

 

18. The plaintiff, after the expiration of some two years, brought the present action with the aid and active collusion and support of the 2nd defendant.”

 

The plaintiffs filed a reply to the statement of defence, paragraphs 4, 5 and 6 and state as follows:

“4.     There was no offer ever made by the plaintiff to sell the property to the 2nd defendant for N36,000.00 as alleged in paragraph 7 of the defence or at all.”

 

This denial is strange in view of the averment in paragraphs 5 and 11 of the statement of claim which amounts to an admission of paragraphs 5, 6 and 7 of the statement of defence.

“5 (I) The plaintiff denies the allegation of collusion in paragraphs 12, 13 and 18 of the defence. The application for consent made to the Lagos State Government for transfer was made by the company in the form requested by the 2nd defendant who at all material times, was the only one with and through whom all negotiations were conducted. The company sided throughout in good faith and on the advice of their solicitor.

(II)    The plaintiff avers that it was only sometime in June when it learned for the first time from the 2nd defendant that the first defendant was only her boy friend and soon afterwards instructions were given for the commencement of this action.

 

6. The plaintiff admits that the 2nd defendant was employed as Miss Majiyagbe and subsequently informed the plaintiff of the change of her name to Mrs. Kuforiji as pleaded in paragraph 8 of the defence. Save as to the admission aforesaid, the plaintiff does not admit any of the other facts or matters pleaded in the said paragraph 8 of the defence.

 

7. The plaintiff avers that by reason of the facts and matters pleaded in paragraph 9 of the statement of claim, the alleged marriage of the 1st and 2nd defendants was null and void because prior to such marriage, the 1st defendant had contracted a monogamous marriage which is still subsisting. Further, and in the alternative, the 1st defendant cannot in the circumstances claim.”

 

That was the state of the pleadings when the case went to trial. Two witnesses, (1) James Davidson Ogilvy, Managing Director of plaintiffs company (P.W.1) and Godfrey Chinweze Oranugo, an employee of the firm of Knight Frank and Rutley AND Company (P.W.2) testified in support of plaintiffs case. In addition, certain documents, Including Exhibit E, letter of offer, Exhibit F, the agreement, exhibit G, the sublease and Exhibit M, the Marriage Certificate, seems to be the main spring-board for launching these proceedings and the determinant of the success or failure of the claim for rescission. Four witnesses, Johnson Eniola Akinlosohi (D.W.1) a chartered surveyor under Fox AND Co.; Obafeml Opanugo, (D.W.2); Olu-watoyin Aninashaun (D.W.3) and Hassan Yussuf (D.W.4) testified at the Instance of the defence.

 

At the conclusion of the hearing of evidence and addresses of counsel, the learned trial judge, Dosunmu, J. (as he then was) delivered a considered judgment in favour of the plaintiff/respondent allowing all the claims. He granted the declarations and made the orders claimed. There, in the concluding paragraphs he said:

“I have taken pains to read the defence over and over. As I understand it, the averment in paragraph 5 of the statement of defence that the misrepresentation as pleaded by the plaintiffs is irrelevant and goes to no issue is intended to mean that the misrepresentation is immaterial. That is to say whether the defendants are husband and wife is immaterial. Regretably, counsel for the 1st defendant did not develop this point very much in his address. On the authorities, it is Indeed a material representation. Where representation relates to the connection of one person to another to a contemplated transaction, such representation has been held to be material. (See Halsbury Laws of England volume 26 page 354 paragraph 1583.) In the light of the evidence of Mr. Ogilvy which was not contradicted, it can not certainly be held that there were no false representations or inducement as pleaded in paragraph 13 of the statement of defence. So far, as I can see, there has not been any valid defence to the claim for rescission of this agreement as having been induced by false representation of the defendant

 

Alternatively, as I indicated earlier, the plaintiffs claim that the agreement be set aside on the ground of their mistake in thinking that the 1st defendant is the husband of the second defendant with whom they were entering into agreement whereas in fact he is the husband of a woman named Phebean Yetunde whose marriage with him is valid and still subsisting. It is in proof of this marriage that the certificate of marriage – Exhibit M was tendered. The way I look at the matter is that if there was this mistake so stated, it cannot be said to have been induced or caused by any action on the part of the 1st defendant. At any rate, there is no evidence that he did anything to mislead the plaintiffs in any way. There are authorities for the proposition that where the mistake is made by one party as in the present case, relief will only be granted if that party was misled in some way by the act of the other. (See Goddard v. Jennings 1881 51 U. Ch. 57; Wilding v. Sanderson (1897) 2 Ch 534.) I do not think this agreement can be rescinded on the ground of the unilateral mistake of the plaintiffs not occasioned by any act of the 1st defendant

 

I need to say a few words more about the Marriage Certificate itself.  Its admissibility was strongly objected to by counsel to the list defendant on the ground that it does not comply with section 1120) of the Evidence Law. On the contrary, plaintiffs’ counsel argued that the certificate complies with the requirements because there are presumptions in favour of such documents emanating from a commonwealth country under section 116 of the Evidence Law. I am satisfied on this authority that Exhibit M is admissible and proves the marriage between the 1st defendant and the woman named therein…

 

I cannot leave this judgment without saying something about certain matters raised by the defence counsel … First, it is in relation to the payment of the purchase money for this property. It was contended that the purchase money came from the defendants together. That may be true but the plaintiffs would not be aware, as Indeed they were not aware of this. They received on letters purporting to come from the defendants, but that is no conclusive evidence that they knew the source of the money paid. The second matter relates to the distance of the second defendants’ old address at Calcutta Crescent, Apapa, to her work place when compared with the property in question … it was dearly established that as far back as September, 1968, the plaintiffs were looking for accommodation for the 2nd defendant, and when they thought of selling their properties in 1969, they conceived it as a good Idea to offer one of them to her at what was described as a specially favourable price of N36,000.00 which indeed it was since they had already received an offer of N44,000.00 for this same property …

 

Finally, there was the point made that the plaintiffs are fighting this action on behalf of the 2nd defendant. It may look odd that she herself is not resisting the claim, that is no justification for the conclusion that there is collusion between the plaintiffs and the defendant … I understand she is now Managing Director of the Company.”

 

The 1st defendant being aggrieved, appealed to the Federal Court of Appeal against the decision of Dosunmu, J. His main complaint was the failure of the plaintiffs to discharge the burden of proof of marriage by Exhibit M the Marriage Certificate to make the representation by 2nd defendant and 1st defendant that they were husband and wife false. He also complained that Exhibit M is inadmissible, that evidence in favour of the defence was not adequately considered and that the decision is against the weight of evidence.

 

His complaint also touched the materiality of the status of husband and wife marriage to the agreement. He maintained that the plaintiff had decided to sell the property before the inclusion of ’his name.

 

In his Judgment which received the concurrence of Nnaemeka-Agu and Mo-hammed, JJ.C.A., Coker, J.C.A. observed:

‘The offer to sell was initially to the 2nd defendant alone and further, it was at the 2nd defendant’s request that the name of the 1st defendant was included in subsequent correspondence (Exhibit H6 and Exhibit E) addressed to both defendants at one and same address, Plot 687 Calcutta Crescent, where both defendants lived, ostensibly as husband and wife.

For misrepresentation to give rise to a cause of action, it is essential that the representation should be material, that it should be acted upon and should be a determining ground of the transaction. See Smith v. Chadwick (1884) 9 App. Cap. 187 at page 190, and Young v. Smith (1915) 3 WLR. 642. There must be an assertion of fact on which the person entering Into the transaction relied upon and in the absence of which it is reasonable to infer that the representee would not have entered Into it at all. The question therefore comes to this, would the respondent have agreed to sell the property to them on the terms it did if the appellant and the employee were not husband and wife? Would the representation tend to induce the respondent to enter into the contract or would it be part of the inducement? The inference is that the respondent acted on the inducement unless it was shown that it knew the facts or avowedly did not rely on the statement. The two did not suggest or prove that the respondent did not rely on the representation … Also in Smith v. Wheetcroff (1878) 9 Ch. D 223 page 230, Fry, J. recognised the principle that misrepresentation of the identity of a purchaser may be a material one if the vendor would have been unwilling to enter into a contract in the same terns with anybody else. The learned trial judge carefully considered the question of materiality of the misrepresentation and in my view applied the correct principle. He came to the conclusion that “he was satisfied from the evidence of the plaintiff that he would have been unwilling to enter into the contract in the same terms with anybody else.” I am of the view that this finding is amply justified by the uncontradicted evidence of 1st p.w. and other documents given in evidence. … The Plaintiff never dealt with the first defendant directly excepting through the 2nd defendant. As agent of the appellant she gave the plaintiff the impression with the acquiescence of the appellant that she was married to him, and thereby induced the plaintiff on the faith of it to enter into the contract with herself and the appellant… The appeal falls on all the grounds and is dismissed with costs …”

 

The 1st defendant, still aggrieved, has now made a further appeal to this Court. His grounds of appeal read:

1. The Federal Court of Appeal misdirected itself in law when it held that Exhibit ‘M’, the marriage certificate tendered by counsel from the Bar without the consent of the appellant proved the subsistence of an earlier monogamous marriage between the appellant and another woman when the authorities referred to did not support the mode by which counsel produced the same and tendered ft.

 

Particulars of Misdirection

(I)      Ogbunyiya v. Obi Okudo AND OTHERS. (1979) 6-9 S.C.32 is authority that witness tendering a public document need not be swom on oath but does not dispense with calling a witness to tender such document and counsel cannot be regarded as a witness for this purpose.

 

(II)    The said document was not produced from proper custody as same was not proved to be legitimately in the presence of the court as in Burnell v. British Transport Commission (1956) 187 at page 190 or coming form proper custody as in Pann – Texas Corporation v. Murat Anstalt (1964) 1 Q.B. 40 at 68.

 

(III)   Sections 191 and 192 of Evidence Law required that a witness must be summoned to produce a document but may not be sworn.

 

2. The Federal Court of Appeal erred in law by holding that “after very anxious consideration, I hold that the statement made by the employee to the 1st p.w. that she was not married to the appellant is admissible even though it was made in the absence of the latter, the question of its weight is a different matter.”

 

The court ought to have excluded that piece of evidence as hearsay against the appellant who was not present when the words were allegedly unttered to the witness by the employee.

 

3. The court below misdirected itself on the facts when it held that the fact that 2nd defendant (employee) misrepresented to the plaintiff (respondent) that she was married to the appellant was a material term of the condition of sale when there was evidence before it that the respondent wanted to sell the property in any case.

 

Particulars of Misdirection

(a)     Exhibit ‘B’ is a firm offer to the employee to sell the property to her for £18,000.00 when though there was a higher offer made to the respondent before the offer.

 

(b)     Exhibit (HC) E addressed to the appellant and the employee at the request of the employee does not in any way alter the original Intention of the respondent to sell to their employee.

 

(c)     The explanation of respondent accepted by the court below does not in any way affect the original intention to sell to the employee and it is immaterial if employee for any reasons whatsoever, subjoined any other person to herself after the offer had been made to her and accepted by her.

 

(d)     The respondent did not enter into the contract of sale in the belief that appellant and employee were husband and wife.

 

4. The court below erred in law when it held that collusion as pleaded by the appellant does not afford him an affirmative defence to the action when the conduct of the employee throughout the proceedings points to nothing but collusion between her and the respondent to deprive the appellant of his acquired interest.

 

Particulars of Collusion

(a)     Employee who was made 2nd defendant neither entered appearance to the writ nor filed a defence to the action;

 

(b)     she remained throughout in the employ of the respondent and even attended court at the hearing

 

(c)     Even after respondent had been informed that there was no marriage between employee and the appellant respondent went ahead to register the property in the name of the employee alone without resorting to rescission until the attempt was foiled by the appellant who filed a caution at the lands registry against the attempted registration.

 

5. The court below misapplied the principles in Smith v. Chadwick (1884) 9 App. Cap. 187 at 190 in the light of the evidence before the Court.

 

6. The learned trial judge erred in law by ordering rescission of the contract of sale Exhibit ’F’ when there was evidence before him that the plaintiff knew of the alleged misrepresentation in 1975 and yet took steps to have the property, 86 Marine road, Apapa transferred to the defendant, thus putting itself in a position where it exercised its right of election by affirming the contract, thereby disenabling itself to exercise any right of rescission in 1977.

 

Before dealing with the submissions of counsel on all the grounds except ground 5 which was abandoned, it is necessary to highlight the important facts established by the evidence and accepted by the court below.

 

The plaintiff, a registered limited liability company, was the registered title owner of the leasehold property at No. 86 Marine Road, Apapa, the subject matter of the action filed in the High Court of Lagos State, Lagos, the proceedings of which has led firstly to the appeal to the Federal Court of Appeal and secondly from there to this Court. The first defendant had association with the second defendant both in business and in family matters. In fact they were partners in business and lived together as husband and wife. The 2nd defendant caused her name to be changed from Miss Majiyagbe (the name by which she was employed) to Mrs. Kuforiji in the company’s register of employees to reflect her married status.

 

In April, 1968, the company put up for sale all its landed properties including the subject matter of these proceedings No. 86 Marine Road, Apapa. The 2nd defendant who had before then been in search of suitable accommodation showed interest In No. 86 Marine Road, Apapa and the company, being desirous of assisting her, offered the property to her for £18,000.00 now N36,000.00. This was put in writing, Exhibit ’B’ addressed to her on 1st December, 1969. The letter reads:

“Mrs. D. B. A., Kuforiji,

1. O. Box 55, spa.

Dear Mrs. Kuforiji,

86 Marine Road, Apapa

 

We wish to confirm that we are prepared to sell the above-mentioned property to you for the sum of £18,000.00. Such sale if concluded, to take effect from 1st April, 1970.

 

Yours truly,

For Vivian, Younger AND Bond (Nigeria) Ltd J.D. Ogilvy”

 

Surprisingly, the plaintiff denied this offer for N36,000.00 in his reply to the statement of defence oblivious of the fact that they had pleaded it. This offer was made after rejecting an offer to purchase the property for N44,000.00 from a third party. When efforts to raise money to pay the N36,000.00 in one lump sum failed, the plaintiff agreed to a request to grant easy terms of payment and wrote Exhibit ‘E’ confirming the sale to the 1st and 2nd defendants, the 1st defendant’s name being added as co- purchaser at the request of 2nd defendant. The letter, Exhibit ‘E’ reads,

“Mr. S.O. Kuforiji,  9th January, 1970 and

Mrs. D.B.A. Kuforiji,

Plot 687 Calcutta Crescent, Apapa.

Private AND Confidential

Dear Mr. AND Mrs. Kuforiji,

86 Marine Road, Apapa

 

Further to our letter dated 1st December, 1969, we now confirm that the sale of the above property to you with effect from 1st April, 1970 will be subject to the sale price of £18,000.00 being paid as follows:

(i)      £2,000.00 paid on the 1st April, 1970 and the balance of £16,000.00 to be paid in ten annual instalments with interest at 4% per annum.

 

(ii)     The title of the property will remain with Vivian Younger AND Bond (Nigeria) Limited until the final payment is received.

 

Arrangements are being made for the execution of the appropriate legal documents recording the agreement and terms of sale.

 

Yours truly,

For Vivian Younger AND Bound (Nigeria) J.D. Ogilvie Managing Director.”

 

Pursuant to Exhibit E, the agreement Exhibit F and the Deed of sub-lease (of the property to the two defendants) for a term of 12 years, Exhibit G, were drawn up and executed on 18th February, 1971.

 

The 1st and 2nd defendants were described therein as husband and wife and referred to therein as purchasers of the property to be sold. The full purchase price was paid by 1975 December.

 

The two defendants are the parents of three children, two boys and a girl. They lived and cohabited at 86, Marine Road, Apapa and were served with the writ of summons and statement of claim in these proceedings at that address. In any event, that was the address for service endorsed on the writ of summons and statement of claim. When family trouble erupted in 1975, 2nd defendant asked for allocation of a new house from her employer after informing Mr. Ogilvie of the trouble. In 1977, 2nd defendant informed Mr. Ogilvie that the 1st defendant and herself were not lawfully married.

 

The principal witness for the plaintiff/respondent was Mr. Ogilvie (P.W.1), the Managing Director of the company whom 2nd defendant succeeded in the office. His evidence is very important to the failure or success of 1st defendant/appellant’s appeal. It was he who wrote Exhibits B and E and to whom 2nd defendant complained of trouble in the family.

 

Part of his evidence in chief reads:

‘When I signed Exhibit F, as witness to the seal of the company, it was in the belief that we were agreeing with 2nd defendant as our employee and her husband. The 2nd defendant was our employee and it was she who gave me the impression that she was the wife of 1st defendant. I have since learnt later towards the end of 1975 that there was trouble in the family. It was not until May, 1977 that the 2nd defendant confessed to me that they were not lawfully married.”

 

The evidence under cross-examination is even more interesting. Part of it reads:

‘The 2nd defendant is now the Managing Director of the Company … She joined our company as Miss Majiyagbe. She is officially known as Mrs. Kuforiji. I was told by my predecessor that the company had decided to sell the house to the 2nd defendant although I was not aware of what was in his mind … The 2nd defendant joined our company on the 18th September, 1968. I wrote Exhibit ‘E’ addressed to the two defendants. I put the names there at the request of the second defendant. I accepted her request, but with the benefit of hind sight I was wrong in so accepting. She never told me that she and the first defendant were interested in the property when it was put up for sale. The property was put up for sale on 23rd April, 1968 when I was not in rice country. I was told that the company was in the process of selling all its properties at that time. The company did sell all other properties apart from 86, Marine Road, Apapa … The full purchase price has now been paid to the company, which has accepted it… I did not think it expedient “at any time to communicate” 1st defendant. I did not know that the purchase price of N36,000.00 came from the defendants. I am afraid that the application in Exhibit J has not yet been effected or approved because the 1st defendant make an objection to it. This action was instituted because the application for registration did not go through.

 

…We do not keep records of the births of our employees’ children but I know the 2nd defendant had her last child on 1st March, 1977. The truth is that 2nd defendant told me of her family trouble in 1975 and asked for the allocation of a new     house…

 

I do not think that settling family trouble is a matter for the management of our company.

 

The respondent’s main complaint was that the appellant was married to one Yetunde Majekodunmi and so could not have married the 2nd defendant. They tried to prove this by producing a Certificate of Marriage Exhibit ‘M’ from the Bar. Admissible, though R is, has the mere production of a marriage certificate Exhibit ‘M’ prove that the appellant was married to Miss Yetunde Majekodunmi? That is one big question that has been raised in this appeal especially in grounds 1, 2 and 5 of the grounds of appeal. Where is the evidence of nexus between the appellant and Exhibit ‘M’? The importance of this lies in the fact that Exhibit ‘M’ has been the major weapon of attack against and the only means of falsifying the representation by the 1st and 2nd defendants that they were husband and wife.

 

The other facts in the case which I need not set out here are of little moment or import and relevance and I Intend therefore only to refer to them whenever I find them relevant to the points raised by counsel which I will now proceed to deal with.

 

The general rule is that in order to rescind the contract, the representee must communicate his intention to do so to the representor [Car AND Universal Finance Co. Ltd. v. Caldwell (1961) 1 O.B. 525]. In this case just cited, the Court of Appeal in England held that it was not an inflexible rule in the sense that if communication is not possible through evasion by or disappearance of the representor the court may relax the strict requirement of communication before instituting the action for rescission in court.

 

Turning to submission of counsel, I find that the submissions made in the court below were repeated before us in the Court. Counsel for the appellant submitted that marriage or the fact of marriage between the 1st and 2nd defendants was not a material consideration in the decision of the plaintiff to enter into the agreement of sale with the 1st and 2nd defendants. It was not the expression of 2nd defend-ant that 1st defendant’s name should be added because she was his wife. Learned counsel contended that what influenced or induced the plaintiff to enter into the agreement was the desire of the 2nd defendant to add 1st defendant as a co-purchaser. He further submitted that the onus on the plaintiff to prove that the defendants were not validly or lawfully married has not been discharge. The evidence given by Mr. Ogilvie did not establish that fact neither did Exhibit ‘M’. He submitted that there was no evidence of nexus between Exhibit ‘M’ and the 1st defendant/appellant Mr. Ogilvie did not give evidence of marriage between Miss Yetunds Majekodunmi and the 1st defendant and the production of Exhibit M cannot supply it. He contended that in the absence of such evidence, the statement by 2nd defendant that she is married to 1st defendant did not amount to misrepresentation. He finally submitted that the attempt to register the 2nd defendant as the owner under the same agreement is an eloquent testimony that the agreement was unaffected by the alleged confession of the 2nd defendant that 1st defendant was not her husband and he cited in support of his submissions the following authorities;

Regrave v. Hurd (1881) 20 Ch.D.1Ogbunylya v. Obi Okudo AND OTHERS.(1979) 9 S.C. 32 Brunnel v. British Transport Commission (1956) 1 O.B. 187 at 190 Sections 191 and 192, Evidence ActPiers v. Plers2 H.L.C. 331, 9 ENGLISH REPORT 1118.

 

Learned counsel for the respondents in reply, admitted that they attempted to register title to the property following the completion of the sale In the name of 2nd defendant alone in the light of the confession of 2nd defendant that they were not lawfully married and their original intention to sell to her.

 

He submitted that the plaintiff has taken a decision to sell the property to 2nd defendant and there was no going back on that decision.

 

He submitted finally that Exhibit M was admissible, properly admitted and proves a subsisting valid monogamous marriage of 1 at defendant which destroyed the presumption of the existence of a valid marriage between the 1 at and 2nd defendant and contended that the said marriage was not denied In the pleadings.

 

He cited in support of his submissions, the following authorities:

Ogbunylya v. Okudo (1979) 6-9 S.C. 32 Section 65(3) of the Marriage Act, 1949 of England.; Isibor v. The State(1970) 1 All N.L.R 248.; Pann-Texas Corporation v. Murat Anstalt (1964) 1 O.B. 40. Section 108 (111) Evidence Law; Section 116 Evidence Law; Section 32 Marriage Act Cap. 115 LJFN

 

The law on misrepresentation is well settled. In order to grant relief to a person who has entered into a contract as a result of misrepresentation, it is necessary that the misrepresentation should have been made either by the other party to the contract or by his agent acting within the scope of his authority.

 

Although ground 5 was abandoned, I find that the submissions on ground 3 covered it. The submissions on grounds 1, 2, 3 and 6 on the whole, call for a thorough examination of the findings of facts to ascertain whether the burden of proof on the respondent was discharged. Taking the issue of marriage of the appellant to Miss Yetunde Majekodunmi, the respondent’s counsel’s contention that Exhibit M proves the marriage appears to me to have been arrived at without proper consideration of the evidence. Having regard to the pleadings of the appellant which contain the averment that he is married under the customary law to the 2nd defendant and the respondent’s pleadings that they would rely on the certificate of marriage, the burden of proof of the monogamous marriage became a very heavy one. This is more so in view of the legal consequences which such proof has on the 1st defendant’s interests and liberty. Section 48 of the Marriage Act makes it an offence for 1st defendant/appellant to pass through the ceremony of customary marriage while the monogamous marriage exists.

 

Although it appears to be a dead letter, the offence of bigamy is still in our statute book and it is the law that not only must the legal marriage and the unlawful marriage be strictly proved, the burden of proof of the offence alleged in this civil proceedings must be discharged in a manner no less than is required to convict in criminal trials. Nnaemeka-Agu, J.C.A. In his short judgment, in which he concurred with Coker, J.C.A., held that the customary marriage asserted and claimed by the appellant was bigamous and being bigamous, it was null and void.

 

The question of admissibility of the marriage certificate raised by the appellant has no merit whatsoever. It is admissible under section 116 of the Evidence Law Lagos State. It was erroneous also to contend that because it came from the custody of counsel at the Bar, it did not come from proper custody.

 

It was also erroneous to contend that counsel could not produce the marriage certificate which was in his possession from the Bar. The case of Vincent Isibor v. The State (1970) 1 All NLR 248 approved by the Court recently in the case of Ogbunylya v. Obi Okudo AND OTHERS. (1979) 6-9 S.C. 32 settled that.

 

In Ogbunylya’scase, Idigbe, J.S.C. (delivering the judgment of the Court) said at pages 42 and 43:

“Finally, this court, in the criminal case of Vincent Isibor v. The State (1970) 1 AN NLR. 248 was of the view that the learned trial Judge do the court below erred in law in refusing to admit the deposition of a witness duly signed by the Magistrate when learned “counsel for the accused sought to tender the same from the bar and in insisting that it could only be proved in evidence through a witness on oath.” it follows from the foregoing that in our view, their Lordships of the Court of Appeal erred in law when they held, in effect, that the more production of the official gazette of 6th October, 1977 (thereafter referred to as “the October Gazette”) without more did not constitute evidence of Government Notice No. 1258 therein contained.”

 

Exhibit M was therefore properly admitted, But that is not all. Its admission does not discharge the burden that rests on the plaintiff to prove that Simeon Olusoji Kuforiji, the medical student in Exhibit M, is the same person as Simeon Olusoji KuforIji the business executive/accountant and 1st defendant before the High Court.

 

The identity of the parties named in the register must always be proved independently, sufficiently to satisfy the court. The learned authors of Phipson Evidence 12th Edition, dealing with the question of identity of the parties named In a register, at page 451 under Article 1075 Said:

“In the case of marriage, identity may be proved by calling the minister, clerk, attesting witness and others present or by proof of their handwriting even without the production of the original register (Sayer v. Glossop 2 Ex 409] or by the help of photographs [R. v. Tolson 4 F AND F 103 154 E.T. 552].”

 

Such evidence is admissible under our law. Section 100(1) of the Evidence Law provides:

“Evidence that a person exists having the same name, address, business or occupation as the maker of a document purports to have is admissible to show that such document was written or signed by that person.”

 

Although Exhibit M proves the fact contained therein to which it relates, it was never established that the 1st defendant was the medical student to whom the marriage certificate refers.

 

The relevance of Exbibit M in these proceedings could only be established by proper, admissible, credible evidence of identity of the persons named in it together with evidence that one of the parties is the 1st defendant. The court needs this information to enable it arrive at a just decision on the question whether or not there was in existence a monogamous marriage. There was a total absence of this vital evidence. Also absent from the res gestae is the necessary evidence that Miss Yetunde Majekodunmi the other party to the marriage, is alive. I do not see how Exhibit M can have any probative value in the proceedings without these pieces of evidence. Even if there is evidence establishing that the Kuforiji in Exhibit M and the Kuforiji who is the 1st defendant in these proceedings are one the same person, to give any weight to Exhibit M there must be adduced evidence that Miss Yetunde Majekodunmi is alive and that the marriage is still subsisting.

 

Apart from the statutory provision in Section 100 of the Evidence Law of Lagos State and similar provision in the Evidence Acts section 100(1) and all the Evidence laws of the various States in Nigeria, I can find no local authority on the point I have however found the case of Sayer v. Glossop (1848) 2 Ex 409 154 E.R. 552 helpful.

 

That was an action by the plaintiff as indorses against the defendant, the acceptor of a bill of exchange dated 11th July, 1947 payable three months after date. The plea entered was that the defendant was the wife of Joseph Glossop at the time of the acceptance and that Joseph Glossop was still living. At the trial before Baron Parke in support of the plea, an examined copy of the register of the marriage of the defendant and one Joseph Glossop was produced. A witness who was called deposed that he knew Joseph Glossop and that he had seen him in the year 1838 when he went abroad and that he corresponded with him since, and knew his handwriting and that he had received a letter from him on the 25th April, 1848. The witness then stated that he had seen the signature of Joseph Glossop in the original marriage register at Marylebone Church and that it was the hand-writing of the Joseph Glossop from whom he had received the letter and who was then alive. It was then contended on the part of the plaintiff that the original register ought to be produced. The learned judge thought the evidence was admissible and the defendant has a verdict on the ground that the evidence was properly admitted. On a motion for a new trial coming up before Pollock, C.B.; Rolfe, B.; Platt, B. and Parke, B., the application was refused. Parke, B. at pages 552 – 553 said:

‘You may prove the marriage between the parties by an examined copy of the register. Now to prove the identity of the person, you may show that In consequence of a particular mark ‘B’ appearing upon the register, such person was present at the time the entry was made upon it. In the present case a witness swore that he had seen the original register and that one of the signatures to it was that of a James Glossop whom he knew. That was evidence that this James Glossop was the person who then married the defendant … As therefore the law required the register book to be kept in a certain place and permits you to give evidence of its contents you may prove the Identity of the party by showing that the mark was made in the book and that this mark is in his handwriting.”

 

Appeal courts do not normally disturb findings of facts arrived at by the courts below especially facts found by trial courts. Indeed, they are reluctant and slow to do so unless compelled to do so by the errors apparent from printed record of proceedings.

 

The appeal court will however rise to the call of duty in the interest of justice and disturb, alter, reverse or set aside the lower court’s findings of facts if on the printed evidence such findings cannot be supported or are not proper conclusions and inferences to be drawn from the evidence.

See    FabumM AND Anor. v. Obaie AND Anor (1968) N.M.LR. 242. Fashunu v. Adekoya (1974) 1 All N.LR. 35 at 41. Abakah Nthah v. Bennieth 2 W.AC.A 1 and 3.

Ogbero Egre v. Ededho Upad (1974) 1 N.M.LR. 22.

 

It is therefore dear to me that both the Federal Court of Appeal and the High Court were in error to have held that Exhibit M by itself alone constitute sufficient proof of the marriage of the 1st defendant to Miss Yetunde Majekodunmi. There being no evidence oral or otherwise that the 1st defendant/appellant was married to the said lady, Exhibit M has no evidential value in these proceedings. That being so, the plank on which the respondent rested to launch these proceedings for rescission falls from their feet and their case is bound to collapse. Even if Exhibit M had been proved to refer to the appellant, the misrepresentation alleged was not material as it was not made by 2nd defendant to P.W. 1 at the time he wrote the letter Exhibit E. The existence of the misrepresentation on the company’s records could not have and was not alleged to have induced the plaintiff/respondent to enter into the contract. A misrepresentation is legally harmless if the plaintiff did not allow it to affect his judgment. [Smith v. Chadwick (1884) 9 App. Cap. 187, 190.; Young v. Smith (1915) 3 W.L.R. 642.

 

Finally, the declaration of intention to affirm the contract as far as the 2nd defendant was concerned in my view, would have earned the respondent the loss of the right to rescind, had there been misrepresentation proved to have induced the contract.

 

It is an abuse of the process of the court to sue for rescission only to turn round to affirm the contract of sale to the person who made the misrepresentation.

 

I think this appeal has very substantial merit in it.

 

Turning to the 1st and 2nd arms of the claim, the decision of this court, sitting as a full court of 7 Justices in the case of Mrs. Omolara Sucknor-Maclean AND An-other v. Inlaks Ltd. (1980) – 8-11 S.C. 1 overruling Shell BP Co Ltd. v. Jamal Engineering Co. Nigeria Ltd. 1 All NLR 543 and v. Paterson Zochonis AND Co. (Nig.) Ltd. (1974) 1 All NLR Part 2 at 107 destroys the contention of the respondent on those claims.

 

Delivering his judgment with which the other justices concurred, Idigbe, J.S.C. said at page 39:

“My Lords, I have, I believe said enough to show why I find it difficult to adhere to or conform with the view taken by this court of sections 14(1) of Cap 181, 42(2) and 79(1) of Cap 181 in the earlier decisions in Jamal and Owumi (supra). It seems to me with the greatest respect, that the view taken in those cases is indeed, capable of leading to considerable injustice. In addition, to allow parties to a deed (and in particular, the grantor of a lease) to challenge their own documents and resile from them in the manner in effect authorised by those two decisions does not appear to me to accord with justice. Such astonishing and alarming consequences could not have been intended by the legislature.”

 

Wisely, in my view, counsel refrained from supporting those two arms of the plaintiff’s claims.

 

The appeal succeeds and is hereby allowed.

 

The decision of the Federal Court of Appeal in Appeal suit No. FCA.KL/119/78 delivered on the 23rd day of April, 1980 dismissing the appeal from the High Court together with the decision of the High Court in suit No. LD656/1977 delivered on the 28th day of March, 1978 are hereby set aside. In their places, an order dismissing all the claims filed by the plaintiff/respondent is hereby substituted with N392.00 (Three hundred and ninety-two naira) costs in this Court, N200.00 (Two hundred naira) in the High Court.

 

 

SOWEMIMO, J.S.C.:

I have read the judgment of Obaseki, J.S.C. with which I am in agreement. The main basis of the claim was that exhibit M showed that the appellant entered into a monogamous marriage in 1958 and therefore could not be lawfully married to the second appellant. As pointed out by my brother Obaseki, there is no evidence identifying the appellant is the person whose name appeared in exhibit M. There was therefore no misrepresentation at all made to first respondent company.

 

The appeal succeeds and the judgment of the High Court in LD/656/77 de-livered on 28th March 1978 as well as that of the Federal Court of Appeal Lagos with their awards of costs are hereby set aside. The appellant is hereby awarded costs of N250 in the High Court, N150 in the Federal Court of Appeal Lagos and N391 in this Court. That will be the judgment of the Court.

 

 

IDIGBE, J.S.C.:

Like my learned brother, Obaseki J.S.C., I have also reached the conclusion that this appeal succeeds. However, as we are differing from the unanimous judgment of their Lordships of the Federal Court of Appeal (hereinafter, referred to as the Court of Appeal”) and that of the trial court (Dosunmu J. – as he then was), I will endeavour to add some comments on the principal question in this appeal which is whether the Respondents (the plaintiffs in the trial court) ‘made out’ a case ‘in terms’ of their principal claim which is one for rescission of a contract between themselves on the one hand and both the 2nd defendant and the Appellant on the other hand, on the ground of ‘false’ or ‘fraudulent misrepresentation’? The very special facts which have led up to this litigation have been fully recounted in the lead judgment of my learned brother, Obaseki J.S.C., and I would gratefully adopt his narrative of the facts in this case. I entirely agree with his conclusions on Exhibit ’M’ in these proceedings, on the second arm of the respondents’ claims, and generally on the claim for rescission of the agreement Exhibit ’F’ on the ground of false or fraudulent misrepresentation.          However, I would, even at the risk of becoming repetitive, require to make passing reference to some of the special aspects of the facts in this case in order to make plain the basis of my comments herein; I would, however, ’confine’ my comments to actions based on ‘false or fraudulent’ misrepresentation.

 

There is no question that the predominant purpose in the decision of the respondents to sell and, as a preliminary to the said sale transaction, also to lease the premises or property on Title No. M01647 located at No. 86 Marine Road, Apapa to the 2nd defendant, Mrs. Dorcas Bolajoko Ayodele Kuforiji, is as pleaded In paragraph (5) of their statement of claim ‘to assist her, as a highly valued employee, to secure more suitable comfortable accommodation near her place of work from where she (should) be able to have easy access to the place where she normally performs her duties as employee of the (respondents’) company.” The question whether she was to own this property, alone or jointly’ with another, let alone the subsidiary question whether that other person was to be no other than her “lawfully married” husband ‘was never an issue” in the negotiations between the parties herein. To this end, the respondents on the 1st day of December, 1969 In a letter, Exhibit ‘B’ in these proceedings, confirmed to the defendant that they “were prepared to sell the…… property (86 Marine Road, Apapa) for £18,000 [now N36,000] “such sale ff concluded to take effect from 1st April, 1970.”

 

By a letter of the 9th January, 1970, signed by J.D. Ogilvie, the first witness for the respondents in these proceedings (P.W.(1)) [Exhibit “E”] addressed to both the 2nd defendant and her husband the Appellant herein (the 1st defendant, in the trial count), the respondents not only “confirmed the information” which their letter of 1st December, 1969, addressed to the 2nd defendant (Exhibit “B” refers) carried, but now added that the sale, to both the 2nd defendant and the Appellant, of the property at 86, Marine Road, Apapa (hereafter, referred to as the “property in dispute”) “with effect from 1st April, 1970”, will be subject to the favourable terms therein set out. It was further stated by the respondents in Exhibit “E” that “arrangements [were] being made [i.e. by parties to the said Exhibit, which include the respondents] for the execution of appropriate legal documents recording the agreement and terms of sale” [square brackets and contents added by me for emphasis] – a clause which, as it appears to me, hardly pays any compliment to that part of paragraph 7 of the statement of claim by which the respondents seek (to my mind erroneously), to give the impression that both the 2nd defendant and the Appellant produced “without reference” to them the vital document, Exhibit “P’ in these proceedings; the Exhibit which clearly sets out the relevant terms of the negotiation and transactions between the parties herein as contained in Exhibits “B” and “E„. I propose later in this judgment to set out fully the said paragraph (7) of the statement of claim when I come to comment on the general principles of law relating to actionable misrepresentation, so far as they are relevant to the matter in hand; and, In particular, the need for care in settling ‘pleadings’ in such proceedings.

 

Here, is a case where evidence is completely absent as to the circumstances under which the Appellant’s status became a ‘material Issue’ to an ordinary con-tract of sale of land or real property; what evidence there Is, shows quite dearly that the respondents were mainly concerned with the comfort of a valued employee and her case of reach to her place of business. It was ‘never’ shown that it was made ‘an issue’ between the employee and the respondents that if the former must have a joint owner of the property in dispute then such ‘Joint owner’ must be a particular type of person – in this case, her husband – whereupon the employee alone, or both herself and the husband (in this case, the Appellant), in order to induce the respondents into effecting a sale of the property in dispute to herself and the Appellants (as joint owners thereof) ‘falsely’ told the Appellants that they were husband and wife. Now, in proceedings for the purpose of obtaining rescission of a contract on the ground of fraudulent misrepresentation (such as the matter in hand), the ‘onus’ is on the representee of alleging and – unless the same is already expressly or impliedly admitted at or before the trial – providing the following: (a) that the alleged representation consists of something ‘said’, written, or done, which in law amounts to representation; (b) that the defendant is the representor; (c) that he (the plaintiff) is the representee; (d) “inducement and materiality;” and (g) ‘fraud’ (i.e. the falsity of fraudulent nature of the representation).

 

This appeal concerns the fourth Ingredient (i.e. item (d) above). Inducement ‘in fact’ must be distinguised from a ‘tendency to Induce” (a matter within the province of the subject of ‘materiality’). The burden of proving Inducement ‘in fact’ Is on the representee – whether he is claiming on it as plaintiff, or raising it affirmatively In defence, qua defendant in an action by the representor to enforce a con-tract which is the result of such inducement – and this is because “ex vi tennint’ what exactly is an Inducement must be a question of fact. Again, however likely a false or fraudulent representation may have been to lead any average or normal person – to whom it was made – to take the steps which he has taken, yet in fact he was not Induced thereby, the misrepresentation is not actionable. Therefore, In an action such as the one with which we are concerned In this appeal, the plain-tiff must show that the Inducement by the representor was made with the ‘object’, and with ‘result’ of Inducing him to alter his position. On the other hand a representation is, Indeed, material if ft has a tendency to Induce the representee to after his or her position, such as by entering Into the contract which in fact he entered into. But the representation must also be shown to be capable of inducing as well as, the actual forerunner’ of the inducement. It should be emphasized here straight away that the views or opinions of the parties ‘generally’ are of no importance whatever in determining whether or not an inducement is ‘material’.

 

So it is immaterial for the purpose of determining issue that plaintiff’s witness merely says that the inducement was (i.e. in his view) material; or, as Ogilvie (P.W.1) in the instant case, said “that the company would not have dealt with (2nd defendant’s) boyfriend.” The respondents would have to do more to show that, in the circumstances of this case and, in particular, of the “relevant negotiations,” the false statement made by the 2nd defendant (assuming 1t was ‘proved’ that she made it – which, here, is not the case) that she was married to the Appellant, had the ‘tendency to induce” the plaintiff company into entering the contract in the terms of Exhibit “E”. The touchstone on the subject is to be found in the speech of Lord Brougham in Atwood v. Small (1835-1840) 6 CL and Fin. 232, also 7. E.R. 684 H.L. at 764-765 which, in my view, repays quotation:

… ‘bolus dins locum contracuui’ is the language of the civil law, not dolus malus generally; not the mere misconduct and falsehood throughout, unless dedt locum corroactul,, because then comes in the equitable doctrine of the civil law, which forms a part of all other parts of jurisprudence, whether founded on it or not, being grounded on the highest consideration of natural equity, ex dolo non oritur contractus.

 

My Lords, the cases which have been referred to, and which are perfectly clear on this point, may be shortly recalled … for the purpose of clearly showing that the materiality as well as the falsehood of the statement, and the knowledge of the party making it that it was untrue, must concur In order to give relief in equity … Now, my Lords what inference do I draw from these cases? It is this, that general fraudulent conduct signifies nothing; that attempts to over-reach go for nothing; that an intention and design to deceive may go for nothing unless all this dishonesty of purpose, all of this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract…

 

Earlier on in the judgment Lord Brougham had also made the following relevant observations:-

“… I now come to the principles of law which are involved in the case, and upon which this decision must proceed… If two parties enter into a contract, and if one of them for the purpose of inducing the other to contract with him, shall state that which is not true in point of fact, which he knew at the time that he stated it not to be true, and if upon that statement of what is not true, and what is known by the party making it to be false, the contract is entered Into by the other party, then generally speaking, and unless there is more than that in the case, there will be at law an action open to the party entering into such contracts, an action for damages grounded upon the deceit, and there will be a relief in equity to the same party to escape from the contract which he has [been] inveigled into making by the false representation of the other contracting party.”

 

Such being the principles on which the law relating to the subject in hand is based I now proceed to apply them to the appeal in hand; and what do we find? There is no evidence on record that the representor (here, the 2nd defendant or the Appellant, or both defendant) intended to produce any effect on the Respondents by any representation whatsoever. I bear in mind that, as a matter of law, the representor will be presumed to have so intended, where he or she willfully uses language calculated, or of a nature, to produce the effect required on a normal person (i.e. to alter his or her position) in circumstances similar to that of the representee at the relevant time. That notwithstanding, nothing like this exists in the matter in hand. I would also like to make a very important observation on the nature of pleadings in these type of actions; and it is that it is always open to the respondents (as plaintiffs) to select the facts of the misrepresentation as they know them and plead the particular mode of representation. If however they do, the law expects them to prove that particular mode in order to succeed. In paragraphs 7 and 8 of their statement of claim the respondents pleaded on this relevant Issue thus:

“(7)   Thereafter the 2nd defendant orally and falsely represented to the plaintiff that the first defendant and herself were husband and wife and both defendants confirmed the said representation in the description they gave themselves in the aforementioned agreement which was prepared by a legal practitioner of their own choice.

 

(8)     By reason of the said representation the plaintiff was induced to agree to continue the negotiation for the sale of the property to the first and second defendants jointly on the favourable terms originally meant for the 2nd defendant alone.”

 

No evidence whatsoever was led to show that the 2nd defendant at any time during the negotiations told (i.e. orally, as pleaded) any agent of the respondents the facts alleged in paragraph (7) of the statement of claim, nor was any evidence led to show that the “favourable terms of sale” were, at any time in the course of the dealings with either the second defendant alone, or both she and the Appellant meant for either of them alone or that the “favourable nature” of the conditions of sale, was an issue which was tied on to the “personality’ of any purchaser or purchasers of the property in dispute. On the available evidence, the raison d’etre for the agreed ease of payment of purchase money, it appears to me, was to delay the time or date of transfer of title or ownership; in other words to make sure that payment was concluded before title in the premises should vest in the purchaser or purchasers. No doubt, the respondents were more readily disposed to easy terms of purchase because one of the purchasers was a valued employee but it was not shown by evidence [adduced] that the easy terms should not have been extended to the Appellant had they known that he was not a lawful husband of the 2nd defendant, who consequently found it necessary to state falsely that she was lawfully married to the Appellant. What evidence there was on this relevant point is to be found in the rather sketchy testimony of Ogilvie (P.W.(1)) and the relevant portions thereof read:

‘The purpose of the sale of this property was for the occupation of the second defendant who was at the time the Group controller of Finance of our company. At that time she did not have a house of her own … the 2nd defendant endeavoured to raise the purchase price but she failed. I agreed that V.Y.B. i.e. the Respondent Company) sold to her on favourable easy terms on the understanding that the property would not be transferred to her until full payment was made … I confirmed in writing the offer of the favourable terms of payment which I made to her. This is dated January, 1970 – Exhibit E, and it was addressed to the 1st and 2nd defendants, at the request of the 2nd defendant; and my impression was that they were husband and wife. The plaintiff/company would not have dealt with the 2nd defendant and her boy friend… The second defendant was our employee and it was she who gave me the impression that she was the wife of the 1st defendant. I have since learnt, that is towards the end of 1975, that there was trouble in the family. It was not until May, 1977, that the 2nd defendant confessed to me that they were not lawfully married.”

 

Under cross-examination Ogilvie continued thus:

… (2nd defendant) joined the company as Miss Majiyagbe. I have no knowledge of any letter from the 2nd defendant to our company that she had since changed her name to Mrs. (a married woman). She is officially known as Mrs. Kuforij. I have known her as such since I came here. NOTE: Earlier this witness testified that he became Managing Director of the respondent company in Nigeria, in 1969.

 

A careful analysis of the foregoing evidence makes it dear that the respondents failed to show that there was material inducement in the representation made by the Appellant and the 2nd defendant, even if any was proved and shown to be false; and as I indicated earlier it is settled law that the burden of proof on this issue is on the representee; that is, unless expressly or impliedly admitted, the representee must establish materiality or the representation and actual inducement following therefrom. (See also: Mathias vs. Yetts (1862) 46 L.T.497 CA per Jesse/ M.R. at 502, and Sir James Hannen at 5C4.

 

Before leaving this point, however, I would like to deal with the submission which has been urged upon us by learned counsel for the respondents in a desperate bid to retain the judgment given in his clients’ favour by the two courts below. It was his submission that inducement in fact, as well as materiality are questions of fact; and as the court of trial made findings of fact in favour of the respondents in these two issues, it was not open to the Court of Appeal and, ex hypothesis, this court to interfere with these findings. The short answer to this very attractive and persuasive submission is this: both inducement and materiality are ordinarily, that is, prima facie questions of fact; but it is a question of law whether, in the ordinary course of individual case, the representation is CAPABLE of being regarded as material. In this connection I would refer to the observations of Jessel M.R. in Smith vs Chadwick (1882) 20 Ch. D. 27 CA at 45 and 46 which I gratefully adopt:

“Finally, it is not every misstatement, although untrue, and untrue in a sense, to the defendant’s knowledge, that will do. It may be that the misstatement is trivial – so trivial that the court will be of the opinion that it COULD NOT have affected the plaintiff’s mind at all, or induced him to enter the contract.

Having said so about the general law, I will now come to the case we have to decide.”

 

(Capitals by me for emphasis.)

 

And in determining, as a fact, whether any representation was by its nature such as can induce, or has actually induced, the representee to a course of action or to any particular action, the court seised of the proceedings must take all the known circumstances of the case into consideration such as, (and a comparable situation exists In these proceedings) the nature of the transaction or contract into which, on the allegation, the representee was induced to enter. Therefore, following the well known principles of law upon which a Court of Appeal can interfere with facts found by the court below, if, as here, it is shown that even on the primary facts accepted by the court below there is no reasonable basis for the conclusion (i.e. as a secondary fact) that such facts are, indeed, material or capable of being regarded as material, then a Court of Appeal can interfere in respect of such issues of secondary facts erroneously found to be proved. However, the point here is that even if the facts proved amount to an inducement the question whether they are capable of being regarded as material is a question of law; and in the given circumstances of this case as well as on the recorded evidence, I am unable to reach the conclusion, as the Court of Appeal has done, that as a matter of law the facts alleged by the respondents, even if taken as amounting to an inducement, were capable of being regarded as material. It follows, therefore, in my view, that the contentions of learned counsel for the respondents and the submissions there-on as set out above must fail.

 

I have already stated that I agree with the conclusions reached by my learned brother, Obaseki J.S.C. and also generally for the reasons given by him this appeal must be allowed.        I would also like to repeat that in view of the decision of this court In SC.83/1979 Mrs. Victoria Omolara Bucknor-Maclean and another vs. Inlaks Limited (1980) B-11 S.C. 1, items (1) and (2) of the claims of the respondents (i.e. the second arm of their claims) cannot succeed. In the result, all the claims of the respondents must fail and I agree with the order proposed by my brothers Obaseki, J.S.C. (in the lead judgment) and Sowemimo J.S.C.

 

 

NNAMANI, J.S.C.:

I have had the advantage of reading in draft the judgment just delivered by my learned brother, Obaseki, J.S.C., and I entirely agree with it. I would also allow this appeal.

 

For purposes of emphasis, I would add a short comment on the issue of marriage as it relates to this suit. The plaintiff/respondent placed so much reliance on Exh. M, a marriage certificate purported to show a marriage between the appellant and another woman. But that certificate, though admitted in evidence, had no probative value whatsoever. The effect was that party (i.e. the plaintiff/respondent) was unable to prove that the representation made by 2nd defendant to it i.e. that she was lawfully married to the appellant, was false. But I would go further than this and say that, in my view, even if it had been shown that the appellant was lawfully married to another woman, it would have made no difference to the decision I have reached in this matter. This is because I am totally convinced that ’marriage’ or the status of the parties was irrelevant to this transaction. Marriage was never a material condition of sale. It seems to me from a close perusal of the printed evidence that the respondent wanted to sell the property in question to 2nd defendant because, as stated in paragraph 5 of the Statement of Claim, it was its intention to find suitable accommodation for her. They “decided to offer to sell the said property to the 2nd Defendant at the specially favourable price N36, 000.00 in order to assist her, “as a highly valued employee” to secure more suitable and comfortable accommodation near her place of work and from where she can be able to have easy access to the place where she normally performs her duties as employee…” So determined was the respondent to assist the 2nd Defendant that it gave her very favourable terms and was prepared to sell the property concerned at N36,000 even though there were offers of N44,000. The facts of this case having been so ably set down in the judgment of “Obaseki, J.S.C.,” I would only mention that by their letter dated 1st December, 1969, Exh.B, the Respondent indicated their wish to sell the property to the 2nd Defendant. It was the 2nd Defendant who requested that the appellant be joined in the transaction and Exh. E dated 9th January, 1970, was written by the respondent. It offered to sell the property to the 2nd Defendant and the appellant on the same terms as had been offered to the 2nd Defendant in Exhibit B. It seems to me totally immaterial that the 2nd defendant subjoined any other person to herself after an offer had been made to her accepted by her. I am of the view in fact that ‘whoever’ she subjoined to herself, the Respondent would have sold to her and that person.

 

It follows that even if there was a misrepresentation i.e. if the 2nd defendant had represented that she was married to the appellant when she could not be such a misrepresentation can only ground relief in law if it was material in the sense that the other party was influenced by it in entering into the contract. It should have operated on the mind of that other party making him enter into the transaction which is sought to be avoided. See Jennings v. Brougham (1853) 5 De GM AND 9 126; Smith v. Chadwick (1884) 9 App Cap 187; Locker and Wool) Ltd. v. Western Australian Insurance Co. (1936) 1 KB. 408, 414. As I have indicated earlier in this judgment, ‘marriage was of no consequence in this transaction and was in no way a factor that influenced the respondent in entering into the contract.

 

I may add finally that I do not see how, this being a court of justice, justice can be done between the parties if the agreement between the 2nd Defendant and appellant on the one side and the Respondent on the other side for the sale of 86, Maine Road, Apapa was set aside while the Respondent company still holds the consideration provided ‘jointly by 2nd Defendant and appellant, and with the ‘possibility that the same respondent company would then reconvey that property to the 2nd Defendant I agree with all the orders made in the leading judgment of my learned brother, Obaseki, J.S.C.

 

 

UWAIS, J.S.C.:

I have had the privilege of reading in draft the judgment just delivered by my learned brother, Obaseki, J.S.C. I too agree that the appeal be allowed for the reasons given by him.

 

I will accordingly allow the appeal and set aside the decisions of the High Court and the Federal Court Appeal. Costs as assessed In the judgment of my learned brother, Obaseki, J.S.C. are awarded to the appellant against the respondent

 

Appeal allowed.