3PLR – KUFORIJI V. PATERSON ZOCHONIS & CO LTD

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KUFORIJI

V.

PATERSON ZOCHONIS & CO LTD

FEDERAL SUPREME COURT OF NIGERIA

3RD NOVEMBER, 1960.

F.S. C. 68/1960

3PLR/1960/61 (SC)

OTHER CITATIONS

 

 

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)

LIONEL BRETT, F.J.

EDGAR IGNATIUS GODFREY UNSWORTH, F.J.

JOHN IDOWU CONRAD TAYLOR, F.J.

 

BETWEEN

  1. F. A. KUFORIJI (Secretary to the Kuforiji Family Council, for himself and members of Kuforiji Family)

 

AND

PATERSON, ZOCHONIS & CO. LTD.

 

REPRESENTATION

Mr. O. Moore (with him Messrs. Somolu, A. O. Kuforiji) -for the Ap­pellants.

Mr. J. G. Bentley -for the Respondents.

MAIN ISSUES

LAND LAW: Lease – Forfeiture – Option to renew – Consideration of in as­sessing compensation.

PRACTICE AND PROCEDURE – ACTION: Account – Accounting party – Meaning and Categories – Elements to he proved – Effect of failure to prove same

PRACTICE AND PROCEDURE  – LAND LAW: Compulsory acquisition – Payment of compensation – Neces­sary consequence.

PRACTICE AND PROCEDURE – Costs – Award of – Consideration for

MAIN JUDGMENT

ABBOTT, F.J. (Delivering the Judgment of the Court):

This is an appeal by the plaintiffs against the dismissal by the learned Chief Justice of the High Court of Lagos of their claim before that Court, which was in the following form:­

“The plaintiff seeks a declaration that the residue of the term granted by a deed dated the 31st December, 1935, and made be­tween the plaintiff and certain members of the Kuforiji Family of the one part and the defendants of the other part is void and of no effect on the ground of illegality.

 

The plaintiff also seeks an account from the defendants as regards the compensation received by the defendants during the compulsory acquisition of a part of the plaintiff’s Family property situate at 34, Marina Street, Lagos, of which the defendants were in occupation as lessees and the payment over to him of whatever is due to the plaintiff’s Family.”

 

The learned Chief Justice awarded costs of £300 against the plaintiffs. When the matter came before this Court, counsel for the appellants stated that he did not press the appeal so far as it concerned the first head of the claim set out above.

 

Originally six grounds of appeal were filed and leave was granted in this Court to file and argue four additional grounds. At the opening of the appeal the appellants’ counsel abandoned the first three of the original grounds and proceeded to argue Nos. 4 and 6 of those and the four additional grounds to­gether.

 

The first part of counsel’s argument on these grounds related to the question whether or not the respondents were an accounting party to the ap­pellants and it was urged that the learned Chief Justice’s findings on this point were wrong. The portion of the High Court judgment dealing with this question reads as follows:­

 

“In the third place to succeed on a claim for an account the plain­tiffs must prove that the defendants are what is commonly known as an “accounting party,” i.e. to say that there exists between them such a relationship, contractual or fiduciary, as renders the defendants liable to account to the plaintiffs for any money re­ceived in a particular transaction. Thus a rent collector, a com­mercial traveller or any other agent or trustee who has received money on behalf of his principal or cestui que trust is an “ac­counting party.” No such relationship exists in the present case between the plaintiffs and defendants. In the negotiations that have taken place between the defendants and the government re­sulting in the compensation offered to and accepted by the defen­dants the latter have acted entirely for themselves and quite inde­pendently of the plaintiffs and have been compensated for their interests only and not those of the plaintiffs.”

 

In my opinion the learned Chief Justice has stated the position and re­lationship between the appellants and the respondents perfectly correctly, if I may say so, and I could find nothing in Mr. Somolu’s arguments to support any other view. Particularly I do not find counsel’s citation from pages 76 – 106 of the 20th ed. of Chitty on Contracts of any assistance to him in his argu­ments. Once that opinion is expressed, it is not really necessary to go further, because unless the respondents could be shown to be an accounting party to the appellants, the whole basis of the claim now pursued by the lat­ter falls to the ground. However, I propose now to deal with the other argu­ments advanced by appellants’ counsel.

 

The next point with which Counsel dealt was that Exhibit 8, which is the receipt of the appellants in favour of the Federal Government for compensa­tion, states that the £11,000 acknowledged thereby is “in respect of the land situate at the junction of Tinubu Street by Kakawa Street, Lagos.” In its final paragraph Exhibit 8 reads as follows:­

 

“We hereby indemnify the Government against all claims made by any person or persons whatsoever in respect of the said land or any part thereof.”

 

Appellants’ Counsel also referred this Court to Exhibit 6, which is the claim made on behalf of the respondents by their surveyors. This claim is di­vided into two portions – (1) a sum of £16,696 for land “based on capital value of profit ground rent for unexpired term of approximately 28 z/3 years” and (2) £26, 207 for the buildings “based on replacement value of buildings affected by acquisition, less deduction for depreciation.” This claim was ul­timately met in full. These documents, it is submitted, show that while the appellants received compensation for the land acquired only, and none in re­spect of the buildings, the respondents received compensation for both land and buildings. Therein, one gathers, lies the appellants’ main complaint.

 

The appellants’ case is that the respondents ought to account to them for a portion of the compensation paid to the respondents in respect of the buildings, in respect whereof they, the appellants say, as above stated, that they have received nothing.

 

On this point it is important to refer to Exhibit G, which is a letter mak­ing the claim on behalf of the appellants by Mr. Gleave, their surveyor, and I set out hereunder the material parts of this letter:­

 

“Further to our recent meeting and discussion on the above I have consulted with my clients and confirm that I have received instructions to settle the claim for compensation in respect of the land taken, in the sum of £11,000 (without prejudice to any claim which can be substantiated in respect of injurious affection or severance to the lands remaining in my clients possession).

 

For the purposes of record I set out hereunder the agreed valuation upon which this settlement of £11,000 for the land is based.

Income to 29th June 1956 (as apportioned)          –        £43. 12. 9d

Year’s Purchase for 2 months at 5%…- 0.17 Value –       £7. 8. 4d.

Income after 29th June, 1956 (as apportioned)     –        305. 9. 5d

Year’s purchase for 28½ years at 5% deferred two months 14.853 Value  –   –                                                                                   £4537.3.2d.

Reversion to Capital Value  – £28,776.0.0d.

Deferred 28 years at 6% – 0.18825 Value              –        £5417. 1. 8d.

Total:                                                                            £9961.13.2d.

Say                                                                                 £10,000

10% for amicable settlement                                           £1,000

£11,000

 

In view of Counsel’s submissions to this Court it must be a matter of comment that Mr. Gleave was never called as a witness in the Court below, although a subpoena to secure his attendance was applied for and paid for. We were informed that the reason for this was that he was out of the country at the time of the hearing and the record shows that on 14th May, 1959, the day before the trial began, appellants’ counsel told the Court that an impor­tant witness for the plaintiff was away in England but counsel did not pursue any application for adjournment on that ground. One must assume that Mr. Gleave was the witness referred to. Be that as it may, the plaintiffs did call as a witness the Deputy Chief Federal Lands Officer, Mr. Miller, and he was asked in examination-in-chief to explain what is meant by the phrase in Exhibit ‘G’ “Reversion to Capital value” and Mr. Miller said that this means the value of land and buildings. Mr. Miller further mentioned that there was no claim by the appellants for reinstatement of the buildings. I therefore am constrained to take the view that in fact the £11,000 paid to the appellants did actually include compensation in respect of the buildings, as well as the land, and on this point also I consider that this appeal must fail.

 

The final point raised by appellants’ counsel in the first part of his ad­dress was that the figure of 282h years – namely, the residue unexpired of the term of the lease, plus the period for which the respondents held an option to renew the lease, should not have been taken into account in full in assessing the compensation to be paid to the respondents. It was submitted that the period covered by the option to renew should not have been included in that the option had not, at the date of the settlement of compensation, been exer­cised. However, Exhibit ‘G’ itself takes into account the period of 28 ‘h years, so that the most that counsel could say is that an extra two months had been wrongly taken into account in assessing the compensation payable to the respondents. He cannot now complain that the period covered by the op­tion for renewal should not have been included. Moreover, it is clear from the authorities that such an option is an asset to be taken into account, in favour of its holder, in assessing compensation.

 

The fifth original ground of appeal complains that the costs awarded by the Court below are excessive, and we heard argument from both counsel on this point on 20th October, when judgment was reserved. By leave of this Court, the argument on the appeal was re-opened on 27th October, when it appeared that the argument on costs which took place before the Court below had been omitted in the typing of the record. It was clear then that there was no substance in this ground of appeal. The learned Chief Justice, in my opinion, exercised his discretion perfectly properly. It may be useful, however, as the arguments before the Court below are, as above stated, omitted from the record, to set out the factors which we conceive to have motivated the learned Chief Justice in arriving at his award of £300.

 

It is plain from the record, and as made plain to the appellants some two months before the hearing, that it was intended to bring from England a wit­ness to give evidence on behalf of the respondents. This was rendered neces­sary by certain paragraphs of the appellants’ Statement of Claim. Paragraph 3 recites a lease of 34 Marina Street, Lagos granted by the appellants to the respondents and dated 31st December 1935 for 25 years from 1st January 1945. Paragraph 4 avers that a consideration for that lease was the payment of interest at 5% on a loan of £3,000 made by the respondents to the appel­lants, but it does not specifically mention the Deed of Mortgage of 31st De­cember, 1935 entered into to secure that loan, nor indeed is this Mortgage mentioned anywhere in the Statement of Claim. Paragraph 5 avers that the appellants “have now discovered that the defendants have never at any time been licensed moneylenders entitled to charge interest on any money they gave out.” Paragraph 8 states that the appellants rely upon and plead the provisions of the Moneylenders Ordinance and paragraph 9 says that the ap­pellants “will contend at the trial that the agreement for the extension of the lease concluded between them and the defendants in 1935 was and is still void and of no effect.”

 

It must be assumed, I suppose, that this last contention is based upon the fact (which indeed it was) that the respondents were not money lenders and the consequent argument (which I find to be quite without substance) that, because of that fact, the respondents were not entitled to charge in­terest on any loan which they made: or alternatively, if they were moneylen­ders, the provisions of the Moneylenders Ordinance had not been complied with by the respondents: and therefore, the lease granted in consideration of a loan secured by a so-called “void” mortgage must itself be void.

 

On the 6th April 1959, appellants’ counsel told the learned Chief Justice that the issue was whether the respondents acted as moneylenders. This question was also raised (and answered in the negative) on interrogatories administered by the appellants to the respondents.

 

It was thus necessary for a witness who had been actively concerned in the respondents’ business in past years, to be brought here specially from re­tirement in England to give evidence about the money lending activities of the respondents.

 

In my opinion the respondents were fully justified in bringing out from England the first defence witness to give this evidence. It was urged that this witness’s evidence could have been taken on commission in England by a let­ter of request, but I am not prepared to say that this method would necessar­ily have been less expensive than to bring the witness out here.

 

It follows from what I have stated above that I find no substance in any of the grounds of appeal. I would therefore dismiss this appeal and order that the appellants must pay the costs thereof, assessed at twenty-six guineas.

 

ADEMOLA, C.J.F.: I concur.

 

BRETT, F.J.: I concur.

 

UNSWORTH, F.J.: I concur.

 

TAYLOR, F.J.: I concur.

 

Appeal Dismissed.

 

 

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