Real
property
- Agreement to sell - part
performance - agreement to
accept a sum and an annual
amount for ever. Contract -
Abandonment of - Question of
evidence
Appellant as plaintiffs suing as
representative of certain people
and successor of former Chiefs
and headmen, sued for a
declaration of ownership of
certain land and cancellation of
two documents on the ground that
the parties were not
ad idem
when the documents were
executed. They lost and in their
appeal argued besides that the
documents were not agreements
for sale.
The first document, made in
1913, agreed to grant certain
land to Government in
consideration of an amount
received; the second, made in
1928, recited that it was
supplemental to the first, the
terms of which were to be varied
by an immediate payment of a
specified larger amount and so
much per annum thereafter for
ever; in other respects the
first document was to remain in
force and be read with the
second as if incorporated in the
first.
The amount mentioned in the
first document as received was
not in fact received; and it was
argued for the appellants that
Government's conduct amounted to
abandonment of the contract,
which could not be revived by
the second document. In fact
Government did enter, before the
second document, into possession
of some of the area mentioned in
the first; moreover the second
document was executed by the
same chiefs and headmen as
before (except one chief who
died and whose place was taken
by his successor).
It was also argued for the
appellants that payment of an
amount per annum was payment by
installments and until final
payment Government were tenants
at will; also that the second
document was void for
uncertainty as regards price,
and the area of land conveyed:
but there was a plan attached to
the first document and a
surveyor's evidence left no
doubt that the latter point "'as
groundless.
As regards the allegation that
the parties were not
ad idem,
there was an oath of proof that
the signatories had the
documents interpreted to them
and understood them, and
received the money stated in the
second document. Further, on the
very day the second document was
executed, a third document was
executed by which Government
granted a portion of the land in
question to the Chiefs and
headmen and people concerned,
and one of the Chiefs
acknowledged the grant.
Moreover, later, the Chiefs and
people concerned sent a petition
complaining that the sum paid
per annum was inadequate,
acknowledging the second
document and asking for
revision.
For the Attorney-General it was
argued that the two documents
were assurances and the Court
was invited so to hold.
Held:
(1) The evidence showed that the
parties were
ad idem;
nor was there any uncertainty as
to the area of land in question
or as to price, both having been
specified and the land having
been shown on a plan besides.
(2) The first agreement was not
abandoned: under it Government
entered into possession of a
portion of the land, and that
agreement was mentioned again in
the second agreement, which was
incorporated in the first.
(3) There is nothing to prevent
a vendor of land from agreeing
to accept an
[pg132]
tn~;n H"ij;-l as tr
to lum if so requl1 d Cases
cited:
(1) Fisher
v.
Eastwoods
(193(j), 1 All ii.H. ,121
(2) Tomes
v.
Chamberlaine,
;) Meeson &> Welsby, 15. (3) Howard v. Shaw, 8
Meeson &> Welsby, 118.
Appeal by plaintiffs: No.
3745.
]. I. C. Taylor,
with him]. A. WachuRu and
Ikpeazu, for Appellants.
De Winton, Crown Counsel,
for the Attorney-General,
Respondent.
The following judgment was
delivered:
Foster-Sutton, P.
This was an action brought by
the plaintiffs-appellants
against the Attorney-General,
defendant-respondent, under the
Petitions of Right Ordinance,
1915 (now Cap. 167 the Revised
Edition).
The appellants sued as
representatives of the people,
and successors of the Chiefs and
headmen, of Abali and Ogburn
Diobu. The claimed,
inter alia,
for a declaration that they are
the rightful owners of all that
land situate in the Rivers
Province, commonly known as Port
Harcourt, and for cancellation
of two agreements dated 18th
May, 1913, and 2nd May, 1928,
Exhibits" F" and" G ",
respectively, on the ground that
the parties were not
ad idem
when the two documents were
executed.
The action came for trial before
Jibowu, ]., who, after reviewing
and ana lysing the evidence,
dismissed the appellants' claim
and gave judgment for the
respondent.
The grounds of appeal raised a
number of points, but before us
appellants' Counsel confined
himself to submitting, firstly,
that Exhibits" F" and" G " are
not agreements for sale, and,
secondly, that the parties were
not
ad idem.
The agreement dated the 18th
May, 1913, Exhibit" F ", is
expressed to be made between
five Chiefs, and two Headmen
representing the Diobu people
and representatives of other
people occupying other areas of
land with which we are not
concerned on this appeal, of the
one part, and Alexander George
Boyle, Deputy Governor of the
Colony and Protectorate of
Southern Nigeria, for and on
behalf of His Majesty the King,
of the other part. The agreement
recites that certain land is
required for the services of the
Colony and Protectorate, gives a
description of the land and then
goes on to recite that the
Chiefs, Headmen and others
mentioned in the schedule
attached to the agreement, in
consideration of the payment of
the sum of money set out against
their several names in the
schedule agree, on behalf of
themselves and their people, to
grant and sell unto Alexander
George Boyle, Deputy Governor of
the Colony and Protectorate of
Southern Nigeria, all the right
title and interest to which they
and their people are entitled by
native law and custom in the
land described in the agreement,
and to declare that at the date
of agreement they are the sole
possessors of all interests in
the land and agree to hold
themselves responsible for all
claims which may thereafter be
made in respect of it.
At page one of the schedule to
the agreement the receipt of the
sum of £2,000 is acknowledged by
the five Chiefs and two Headmen
of Diobu, and it is stated to be
" in full discharge of all our
claims under the foregoing
agreement".
The agreement dated 2nd May,
1928 (Exhibit" G "), with the
exception of Chief Wokekoro Wali
who succeeded Chief Wokekoro,
deceased, was executed
133
---
WORO
V.
A.-G.
Foster-Sutton }
by the same Chiefs and Headmen
of Diobu as wert l the agreement
Exhibit" F ", and the other
party to I of Nigeria. The
agreement recites that it is
supplelJ1l that the Chiefs and
Headmen and Goyernor deslr
principal agreement (Exhibit "F
") "in the 1J1,11I1H and it then
reads as follows:-
" Now it is hereby agreed as
follows:-
" The purchase money to be paid
to those Chiefs and Headmen shal!
[)t an immediate payment of the
sum of £7,500 and thereafter a
sum of £500 per annum payable on
the 18th day of May in each year
commencing on 18th day of May,
1928 and continuing for all time
hereafter instead of the
purchase money fixed by the
original agreement.
"AND IT IS further agreed and
the Chiefs and Headmen hereby
indemnify the Governor against
all claims and demands in
respect of the said purchase
money by themselves and their
people or any person or persons
claiming through or under them.
" LASTLY, subject only to the
variations herein contained, the
principal agreement shall remain
in full force and effect and
shall be read and construed and
be enforceable as if the terms
of these presents were inserted
therein by way of addition or
substitution as the case may
be."
On behalf of the appellants Mr.
Taylor argued that after the
execution of the agreement dated
18th May, 1913 (Exhibit "F "),
the Government took no further
action in the matter for a
period of 14 years, that the
purchase money of £2,000 was not
paid, that the Government's
conduct amounted, in law, to an
abandonment of the contract, and
that the agreement dated 2nd
May, 1928 (Exhibit "G "), could
not revive the earlier agreement
even if the parties consented to
its doing so. In support of this
contention he cited the case of
Fisher
v.
Eastwoods (1).
The learned trial Judge found as
a fact that although the receipt
of the sum of £2,000 was
acknowledged in the schedule to
Exhibit" F ", it was not paid.
and there is no doubt that the
finding was a correct one.
The trial Judge expressed the
view that the non-payment was
probably due to the fact that
the plaintiffs, after executing
Exhibit" F ", refused to accept
the money becanse they felt it
was insuffIcient, and that
appears to me to be a reasonable
conclusion to draw from the
evidence.
It is clear, however, that the
Government did enter into
possession of some of the land
affected by Exhibit " F ".
Paragraph 6 of the Statement of
Defence alleges that they did
enter into possession of the
land, paragraph 5 of the
Statement of Claim avers that
the Government were" only
allowed ... some portion for
settlement ", and the evidence
of plaintiffs' witness Emanuel
Fila Hart, supports that
proposition. Moreover, during
the course of the argnments
before us, it was admitted by
both Counsel that the Government
had entered into possession of
some of the area of land covered
by Exhibit" F " before the
parties entered into the
agreement Exhibit" G ".
In
Fisher
v.
Eastwoods
(1) it was held, on the facts of
that case, that the plaintiff
had elected to treat the
contract as at an end by reason
of acts of his which were
inconsistent with its
continuance. In his judgment in
that case Branson, J., said: " I
think the real question I have
to decide here is not the purely
legal question as to whether
this contract was allowed to
lapse by the effluxion of a
reasonable time, but the
practical question as to whether
the parties have or have not
abandoned the contract and
treated it as at an end ".
Apart from the fact that the
Government entered into
possession of some of the land
pursuant to Exhibit " F ",
Exhibit " G " incorporates " the
principal agreement" Exhibit" F
", subject only to the
variations contained in Exhibit
" G ", and it was, as I have
already said, executed, with the
exception of Chief
134
r
't
,
t·
WOBO
V.
A.-G.
Foster-Sutton, P.
Wokekoro, deceased, who was
replaced by Chief. Wokekoro \Vali,
by the same Chiefs and Headmen
of the people of Diobu who
executed Exhibit" F ". I am
unable, therefore, to agree with
the suggestion that there was
any abandonment of the contract.
Mr. Taylor also submitted that a
payment of an annual amount of
£500, for ever, as provided for
in Exhibit" G ", "is nothing
more than payment by instalments
" and that until final payment
the Government are merely
tenants at will. He cited two
cases which he submitted
supported his contention,
Tomes
v.
Chamberlaine
(2) and
Howard
v.
Shaw
(3). In my view those cases do
not support the proposition
contended for. All they decided
was that where a party is let
into possession under an
agreement of purchase, which
afterwards goes off, he becomes
merely a tenant at will.
It was also contended that
Exhibit "G" was void for
uncertainty, (i) as regards
purchase price, and (ii) the
area of land conveyed by the
Diobu Chiefs.
It appears to me that you could
hardly have anything more
definite than the purchase price
provided for in that document.
It provides for an " immediate
payment of the sum of £7,500 and
thereafter a sum of £500 per
annum payable on the 18th day of
May in each year commencing on
the 18th day of May, 1928, and
continuing for all time
thereafter". There is nothing to
prevent a vendor of land from
agreeing to accept a lump sum
down and an annual sum from the
purchaser in perpetuity instead
of a larger lump sum down. The
complaint that the area affected
by Exhibits" F " and" G " is
insufficiently described is not,
in my opinion, well founded. The
former document contains a
detailed description of the
boundaries of the land and the
area is also defined on a plan
attached to the agreement.
Moreover Jeremiah Dme, a
licensed surveyor, called as a
witness by the plaintiffs, gave
evidence that he made a survey
of the land for the plaintiffs
in 1949, that he had compared
the plan attached to Exhibit" F"
with the plan he made pursuant
to his survey, Exhibit" M ", and
that both plans relate to the
same land. Exhibit" G" merely
repeats the description of the
boundaries contained in Exhibit
" F ".
The learned trial Judge made a
clear finding of fact against
the plaintiffs on their plea
that the parties were not
ad idem
when Exhibits " F" and " G "
were entered into, and in my
view it would be difficult to
support any other conclusion.
Both documents contain an " Oath
of Proof" sworn to, in the case
of Exhibit" F ", before a
District Commissioner, and in
the case of Exhibit" G ", before
the Acting Resident, testifying
that they had been read over and
interpreted to the Chiefs and
Headmen of Diobu who executed
them and that they appeared to
understand them. Although one of
the plaintiffs, Philip Chinwa,
gave evidence that no agreement
of sale was entered into by the
Chiefs of Diobu and that the"
People who were supposed to have
executed Exhibit' F ' are not
Diobu people", he later admitted
in answer to the Court that "The
seven Chiefs and Headmen who
signed the agreements were our
Chiefs", and that F. O. Allagoa
who made the" Oath of Proof" in
Exhibit" G " " interpreted for
us when the £7,500 was paid".
It seems to me clear that the
real objectio~ of the Chiefs and
Headmen of Diobu to Exhibit" F "
was in connection with the
amount they had agreed to accept
by way of purchase price and
that Exhibit" G " represents a
compromise as to price, reached
as a result of negotiations
carried on over a period of
years. It also appears that the
parties regarded Exhibits" F"
and " G " as a conveyance of
the land now in dispute because
by Exhibit" H ", executed on the
2nd May, 1928, the Governor of
Nigeria purported to make a
grant of 3, 5 square miles of
the land in question to the
Chiefs, Headmen and people of
Diobu, and Chief Wobo
acknowledged the grant. Moreover
in their petition to the
Governor, Exhibit" J2 ", the
Chiefs and people of Diobu
complain that the annual payment
of £500 is insufficient for
their needs, acknowledge
Exhibit" G ", and ask for
13f)
• I
I ~
WOBO
V.
A.-G.
Foster-Sutton, P.
" another revision variation and
modification". In this
connection it is rF to observe
that the plaintiff Joseph Wobo
admitted in his evidence tr.,
Diobu instructed the Chiefs to
write the petition. The Chiefs
gave lawyer
instructions" .
On behalf of the respondent Mr.
De \Vinton submitted that
Exhibns
and" G " are assurances and we
were invited to so hold.
By Exhibit" F " the Chiefs and
Headmen of Diobu agree on behalf
of themselves and their people"
to grant and sell", and Exhibit"
G " refers to Exhibit " F " as
an agreement" for the sale and
purchase". In my view those
words cannot be said to operate
as a transfer of the land in
question to the Government, but
the two agreements do, in my
opinion, constitute a binding
contract for sale, and there has
clearly been part performance of
it.
It follows, therefore, that in
my view the plaintiffs were not
entitled to any of the relief
asked for in their statement of
claim. They hold the land
described in Exhibits" F" and" G
", less any of such area covered
by Exhibit" H ". as trustees for
the Governor, and if required so
to do are bound to execute a
conveyance of the land in
question in his favour.
For the reasons I have given I
would dismiss this appeal with
costs.
de Comarmond, Ag. C.]., Nigeria.
I concur.
Coussey. ].A.
I concur.
Appeal dismissed.
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