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SUIT No. F.S.C. 11/1961

3PLR/1962/21 (FSC)













K.A. KOTUN (with him, MASHA and M.A. KOTUN) – for the Appellants.

COKER – for the Respondent.



REAL ESTATE/LAND LAW:- Specific Performance – Claim for Order setting aside sale of land by vendor to third party  and for Specific Performance of earlier contract in favour of Plaintiff – relevant considerations

PRACTICE AND PROCEDURE – PLEADING:- Writ of Summons- Failure in Writ to claim relief against one Defendant – How treated

PRACTICE AND PROCEDURE – PLEADING:-  Amendment of Claim added by order of Court – Validity of further amendment by Trial Judge suo motu without objection and without calling upon parties to address the Court – Relevant considerations

PRACTICE AND PROCEDURE – COURT:- Appellate Court – Power to vary Trial Court Order — Avoidance of Multiplicity of suits – Relevant considerations

PRACTICE AND PROCEDURE – PLEADING:- Amendment – Erroneous use of a word in Statement of Claim- Where defendant is aware of sense in which word is used — Whether amendment is necessary for Court to grant appropriate relief – relevant considerations

PRACTICE AND PROCEDURE:- Land disputes – Court – Specific performance – Power to Order Defendant purchaser to join with Defendant grantor in execution of Conveyance to Plaintiff – relevant considerations

WORD AND PHRASES: ”Fraud” – meaning thereof

CHILDREN AND WOMEN LAW:- Women and Real Estate/Land – Difficulty of buying land by a woman – exposure to unfair and arm-twisting treatment intended to extort more than agreed purchase sum or to deny/delay conveyance of property – Attitude of court thereto



This is an appeal by the defendants against the judgment of Taylor, J., as he then was, given on the 29th August, 1958 in what was at the time the Abeokuta Division of the High Court of the Western Region. For reasons arising out of the reorganisation of the Judicial Divisions the appeal has taken an unusually long time to be ready for hearing, and it may be that the same reasons account for the large number of manifest errors in the typing of the record.

The course which the trial took in the High Court was in some respects unusual, and it will be necessary to set out the facts and the course of the proceedings at some length before coming to the issues on which the appeal turns. On the 21st January, 1957, the first defendant in the present case, Amusa Yesufu Oba, obtained judgment in the High Court of the Western Region against the present plaintiff for a declaration of title to, and possession of, a piece of land on which she had erected a building. Thereafter negotiations took place between the two and on the 14th February, 1957, they entered into a written agreement, Exhibit F, by which the first defendant agreed to sell the piece of land to the plaintiff for £300. £100 of the purchase money was paid the same day, payment being acknowledged in the agreement, and as regards the remainder the agreement provided-

“the balance of £200 (two hundred pounds) sterling to be paid in full on or before the 31st day of March, 1957. Otherwise the vendor shall be at liberty to sell the said property to any other intending purchaser and refund the part payment to the purchaser”.

There is a conflict of evidence as to whether the balance was tendered before the 31st March, or at all, but it is common ground that it was never both tendered and accepted, and that on the 5th April the first defendant wrote a letter to the plaintiff, Exhibit B, saying that since the balance had not been paid up to the 4th April he had taken possession of the property, and inviting her to claim the part payment of £100 from his solicitor. The plaintiffs solicitor addressed a registered letter to the first defendant on the 9th May, enclosing £200 in postal orders, but it was returned undelivered.

On the 22nd July the Plaintiff applied for a writ of summons against the first defendant, asking for specific performance of the contract of sale, and the writ was issued on the 21st August, giving the 8th October as the return date. On the 26th September the plaintiff filed a Notice of Motion for an order to restrain the fast defendant from disposing of the property. On the 9th October the first defendant, appeared, and the application for an injunction was refused, but no order appears to have been made in the action itself. On the 4th November the plaintiff filed a Notice of Motion for an order allowing her to amend her writ by adding a further claim, and also permitting her to join Rufai Akinhanmi as the second defendant. The motion was granted on the 29th November, and the relief claimed then read:-

“The plaintiff seeks against the defendant an order for the specific performance of the contract of sale and conveyance of land situate lying and being at No. 33 Adeyemi Street, Mushin, Western Region of Nigeria, entered into by the plaintiff and defendant in February, 1957, and in respect of which the defendant had received £100 (one hundred pounds) advance but which he now purports to repudiate.

“The plaintiff also seeks against the defendant a declaration that any purported sale of the property which is the subject-matter of this action by the said defendant to any other person since 14th February, 1957, is a fraud on the part of the said defendant as against the plaintiff and therefore void and should be set aside”.

It is now submitted that the writ, as amended, claims no relief against the second defendant, to whom the first defendant had conveyed the property on the 26th November, 1957, in pursuance of an agreement entered into on the 18th July, but no application was made for the second defendant to be dismissed from the suit, and he entered a defence traversing the Statement of Claim. It was alleged in the Statement of Claim that the balance of £200 had been tendered and refused both before the 31st March and at various times thereafter, that the second defendant was “one of those who intervened but he backed the first defendant in his demand for more that the £300 previously agreed on” and “further said that the first defendant had right to deprive the plaintiff of the said property if she would not submit to the demand”, and that he purported to purchase the property despite the knowledge that he had “of the intention of the first defendant to deprive the plaintiff of the property. The last two paragraphs read:-

“8.     The plaintiff will contend at the trial that the first defendant’s refusal to receive the balance of £200 (two hundred pounds) and convey the said land to the plaintiff (because he wanted more than the £300 (three hundred pounds originally agreed upon), and the second defendant’s alleged purchase of same with full knowledge of the intention of the said first defendant constitute a fraud on the plaintiff by both defendants.

“9.     Wherefore the plaintiff claims as per writ of summons.”

It will be observed that paragraph 8 of the Statement of Claim repeats the allegation of fraud and specifies the acts on the part of each defendant which are said to constitute fraud. It has at no time been submitted on behalf of the appellants that the acts in question did not amount to fraud and no application was made to strike out the pleading. When the case came up for trial the plaintiff gave evidence on her own behalf, of which the material parts may be summarised thus. She had not £200 available in cash, and she began by borrowing it from a friend whose name has been variously transcribed by the typist as Adeleye, Adetunji or Adebiyi but is clearly Adebiyi. She went to the first defendant’s house on a number of occasions to try to find him and pay the money, but did not find him in until the fourth visit, when she was accompanied by Adebiyi and a relative named Shadare. When she did find the first defendant in, which was on a date earlier than the 31st March, she tendered the money, but the second defendant, who was also there, told her to go and find something to supplement what she had brought. The first defendant told her not to listen to the second defendant, and made an appointment to meet her at his solicitor’s office the following day. She kept the appointment but the first defendant did not. Six days later she went to the first defendant’s house again, and he told her to have a conveyance prepared; the second defendant was again present and asked her why she had not supplemented the sum of £200. She had a conveyance prepared but the first defendant refused to execute it.

At some stage after the interview at which Adebiyi was present, the plaintiff said she gave Adebiyi his cash back, and obtained from him a document, described by him as a conveyance, on the strength of which she was able to borrow the sum of £200 from one Georgius Cole. This and the second tender may have taken place after the 31st March, 1957. Later she returned his money to Georguis Cole and borrowed £200 again from Adebiyi to provide her solicitor with funds to enable him to enclose £200 in postal orders in his letter of the 9th May.


Adebiyi gave evidence in corroboration of the plaintiff’s evidence. Sharade, who was tendered for cross-examination by the plaintiff did not corroborate her story, but the trial judge, who saw him in the witness-box, regarded him as being of poor intelligence and memory, and treated his evidence as worthless. The two defendants gave evidence denying the evidence of the plaintiff and Adebiyi, and called another witness whose evidence also the trial judge regarded as unsatisfactory.


In his judgment, the trial judge accepted the evidence of the plaintiff and Adebiyi in preference to that of the defendants, and proved that the sum of £200 had been tendered by the plaintiff to the first defendant before the 31st March, 1957, and that the second defendant was aware of the tender and of the plaintiff’s interest in the property. He then went on to consider whether, on the pleadings, it was open to him to give the appropriate relief to the plaintiff. He came to the conclusion that fraud had not been established, but he regarded it as a proper case for the exercise of his power to amend the writ of his own motion under Order XXXIII of the Supreme Court (Civil Procedure) Rules, which were then still in force in the Western Region High Court. He therefore proceeded, without calling on counsel to address him further, to amend the second claim in the writ, as added by the order of Court on the 29th November, 1957, to read:-

“The plaintiff also seeks against the defendants a declaration that the purported sale of the property which is the subject matter of this action by the first defendant to the second defendant since the 14th February, 1957, is a fraud on the part of the said defendant as against the plaintiff and therefore void and further that it should be set aside on the ground that the second defendant is a purchaser with notice of the plaintiff’s prior interests.”


The judge then went on to give judgment setting aside the purchase of the property by the second defendant on or by the 18th July, 1957, and directing that the sum of £200 and the conveyance to the plaintiff should be brought to the registry of the Court on a stated date and the conveyance executed by the first defendant. He made no reference to the conveyance from the first to the second defendant, Exhibit G, which had not been mentioned in the pleadings and was first referred to when the second defendant came to give evidence.


It is now possible to turn to the issues involved in this appeal. The appellants say, as regards the trial judge’s findings of fact, that he ought not to have found it proved that the sum of £200 was tendered at all, and that in any event there was no satisfactory evidence that a tender was made on or before the 31st March, 1957. As a corollary they submit that on the proper construction of the agreement, Exhibit F, time was of the essence of the contract and the first defendant was within his rights in rescinding the agreement. The respondent relies on the evidence of the tender made in the presence of Adebiyi, not only as showing that a tender was made before the 31st March, 1957, but as proving the second appellant’s knowledge of the respondent’s interest, which is a vital part of the respondent’s case. Mr. Kotun, for the appellants, has drawn our attention to certain respects in which he says the evidence of the plaintiff is obscure or self-contradictory or fails to tally with that of Adebiyi; in particular he says that two witnesses disagree as to the number of times they visited the fast defendant’s house together. Much of his criticism dealt with the discrepancy between the names Adeleye, Adetunji and Adebiyi, which I have already described as a mere error in transcription, and I do not regard the other matters to which he has drawn attention as sufficient to outweigh the trial judge’s considered opinion that the plaintiff and Adebiyi were witnesses of truth and that the two defendants were not. There is nothing inherently improbable in the account of the prevaricating tactics adopted by the two defendants and I would uphold the trial judge’s finding that the plaintiff had tendered the sum of £200 to the first defendant before the 31st March, 1957, and that the second defendant knew of her interest in the property. I would reject the suggestion that the plaintiff’s evidence, even if it is accepted, does not show that the second defendant knew what property was concerned.


This finding makes it unnecessary to decide whether, as a matter of construction, time was of the essence of the agreement, Exhibit F.


It remains to consider first the appellants’ submission that the learned judge made a wrong use of his discretion in amending the plaintiff’s claim in the course of his judgment without giving the parties the opportunity of addressing him on the matter, and secondly the respondent’s request, made in the course of the hearing of the appeal, that this court should vary the judgment either by setting aside the conveyance from the first to the second appellant or by directing the second appellant to join in the conveyance to the plaintiff.


As regards the amendment made by the trial judge, Mr. Kotun’s complaint was that it raised a new issue of fact, as to the knowledge of the second defendant, and he drew our attention to the judgment of the Privy Council in Ambrosini v. Tinko, (1929), 9 N.L.R.8. In that case, various sets of accounts had been produced in evidence, and in the course of preparing his judgment the judge observed certain facts about them to which no reference had been made by either party in the pleadings or in the course of argument. He formed the mistaken view that these facts could have only one legal consequence, and gave effect to this view in his judgment, without allowing the parties to address him, or to call evidence to show the real consequence of these fresh facts. The Full Court upheld his view and allowed the plea to be amended, but the Privy Council held that he and the Full Court were wrong. It is well settled that neither party will be allowed to raise an issue which has not been pleaded and on which the full facts are not before the Court, and this decision merely recognises the existence of a similar limit to the judge’s powers.


In the present case it was fully pleaded in paragraphs 6, 7 and 8 of the Statement of Claim that the second defendant knew of the plaintiff’s interest in the property, and of the first defendant’s intention to defeat that interest, indeed the fraud alleged against the second defendant in paragraph 8 consists in purchasing the property with that knowledge. The present case, therefore, has nothing in common with Ambrosini v. Tinko, and there is no substance in the submission that a fresh issue of fact was raised. What happened in this case was that the judge held that the facts pleaded in the Statement of Claim had been proved, and constituted a good cause of action against both defendants, but that they were wrongly described as fraud. As to that, no argument has been addressed to us any more than it seems to have been to the trial judge; there is no doubt that in the older reported cases the Court of Chancery applied the word “fraud” to a transaction of this nature: see, for example, Willoughby v. Willoughby (1756) 1 T.R. 763. In any event, since the defendants did not take exception to the word, and were fully aware of the sense in which it was used, I would hold that it was unnecessary to amend the writ, and that the relief asked for could have been given on the writ as it stood after it had been first amended.


If this is the correct view, it is perhaps unnecessary to consider the submission that the judge ought not to have amended the writ without allowing the parties to address him on the proposed amendment. For reasons which must already be plain, I should not have held, in the present case, that the defendants had suffered any actual prejudice from the course which was followed, but the decision in Ambrosini v. Tinko illustrates the dangers of such a course and, with respect, I think prudence requires that it should be an invariable rule of practice for the judge to invite the parties to address him before he amends the writ or pleadings of his own motion.


Finally there is the question whether this Court should vary the order made by the trial judge. This is a case in which we ought to make such [an order] to avoid a multiplicity of proceedings and make the judgment effective, so far as that can be done without injustice, and Mr. Kotun was unable to advance anything to show that injustice would result to the second appellant if he were ordered to join in conveying the property to the respondent. There is power to order a purchaser in the position of the second appellant to join in the conveyance: see Potter v. Sanders (1846) 6 Hare, 1, and the relief sought in the writ is wide enough to cover such an order. I would vary the judgment accordingly, with a provision that the High Court should have power to give any further directions necessary for enforcing the judgment as varied. The exact terms of the order of this Court should be settled in chambers after consultation with counsel on both sides. The respondent should have costs which I would assess at 31 guineas.


UNSWORTH, F.J.: I concur.


BAIRAMIAN, F.J.: I concur.


Appeal dismissed: Judgment of High Court varied.


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