⦿ CASE SUMMARY OF:
Ali Safe v. Northern States Marketing Board (1972) – SC
by PipAr Chima
⦿ LITE HOLDING
A receipt is a sufficient memorandum if it refers, either expressly or impliedly, to another document containing the requisite terms required of a memorandum according to the statute of frauds.
Statute of fraud
Northern States Marketing Board
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
In Suit No. K/46/1970 in the Kano High Court, the plaintiff’s amended writ of summons filed by leave of the court read:
“The plaintiff’s claim against the defendant is for a declaration of title to the house situated and known as Plot 59A, Fagge, Waje Area, Kano.” On the 14th of October, 1970, Wheeler, J., dismissed his claim with 76 guineas costs and against that decision he has appealed to this court.”
1. Whether the receipt is a sufficient memorandum satisfying the statute of frauds?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In the present appeal, it is true that the receipt which is dated the 18th of March, 1969, states that it is in respect of 59A, Zungeru Road, Kano, but the actual words used are “being highest bid for sale of 59A, Zungeru Road, Kano” and on the back are inter alia the words “witness to auction and payment 18/3/69, V.A. Ogunbiyi” (Our underlining). Even accepting Mr. Grey’s contention that the reference on the back of Exhibit 4 “Vide Barrister Thanni’s letter K/79/68” does not take one indisputably to Exhibit 8 (especially as though it bore that reference Exhibit 8 was written on the 24th of March, 1969 – six days after the auction at which Mr. Ogunbiyi was a witness as shown by the endorsement on the back of Exhibit 4), nonetheless, Exhibit 4 clearly shows that the receipt was given in
respect of a bid and payment at an auction on the 18th of March, 1969 to which V.A. Ogunbiyi was a witness and we think in the circumstances it would have been perfectly proper for the learned trial Judge to have considered the parol evidence of inter alia Mr.
V.A. Ogunbiyi, who was the 4th plaintiff’s witness, which connected that reference to the auction on the 18th of March, 1969, and the contents of the public notice pertaining to that auction (Exhibit 3) and which show that what took place on that day was that 59A,
Fagge Waje Area, Kano was auctioned and that the plaintiff bought it and that the receipt (Exhibit 4) which he received from the auctioneer referring to 59A, Zungeru Road, Kano, was in respect of that property auctioned, whether or not it also bore the reference of 59A, Zungeru Road, Kano. If that had been done we think the learned trial Judge would have been bound on the evidence before him to come to the conclusion that a sufficient memorandum containing the terms of the agreement was established by parol evidence when reading Exhibits 3 and 4 together and that accordingly, he would not then have come to the conclusion that he did that there was no sufficient memorandum.Having regard to our decision that in fact there was a sufficient memorandum to satisfy the requirements of Section 4 of the Statute of Frauds, it does not become necessary for us to consider the other ground of appeal argued, that in any case there was part performance established on the evidence here, as our finding that there was a sufficient memorandum is in itself enough to conclude the matter.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Lewis JSC
We accordingly, allow the appeal and set aside the judgment of Wheeler, J., in suit K/46/1970 delivered in the Kano High Court on the 14th of October, 1970, dismissing the claim with 75 guineas costs, and we do order that the plaintiff be granted the declaration of title sought in his amended writ namely “to the house situated and known as plot 59A, Fagge, Waje Area, Kano.”
The plaintiff is entitled to his costs in the High Court which we assess at 116 guineas and to his costs of this appeal which we assess at 46 guineas, though if the appellant (and it is not clear from the record) paid for the record of this appeal he shall in addition receive that sum so paid as costs provided that he established the payment before the Registrar of the Kano High Court.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Long v. Millar (1879) 4 CPD 450, said Russel, J., in Stokes v. Whicher (1920) 1 Ch 411, 418, comes to this; that, if you can spell out of the document a reference in it to some other transaction, you are at liberty to give evidence as to what that other transaction is, and, if that other transaction contains all the terms in writing, then you get a sufficient memorandum within the statute by reading the two together.’
In Burgess v. Cox (1951) Ch. 383 Harman, J., (as he then was), found that he could read two documents together to remedy the deficiency of the defendant’s signature lacking in the first document relied on as being a memorandum when it was obvious that if the two documents were placed side by side, they referred to the same transaction.
Timmins v. Moreland Street Property Co. Ltd. (1958) Ch. 110 which shows the relaxation of the earlier rules and that there need not be a specific or express reference from one document to the other document in order to constitute a memorandum required under the Statute of Frauds as is sufficient if by necessary implication there should be reference from one to the other. Jenkins L.J., (as he then was), said at page 130: “The rule has no doubt been considerably relaxed since Peirce v. Corf LR. 9 QB. 210 was decided in 1874, but I think it is still indispensably necessary, in order to justify the reading of documents together for this purpose, that there should be a document signed by the party to be charged, which, while not containing in itself all the necessary ingredients of the required memorandum, does contain some reference, express or implied, to some other document or transaction. Where any such reference can be spelt out of a document so signed, then parol evidence may be given to identify the other document referred to, or, as the case may be, to explain the other transaction, and to identify any document relating to it. If by this process a document is brought to light which contains in writing all the terms of the bargain so far as not contained in the document signed by the party to be charged, then the two documents can be read together so as to constitute a sufficient memorandum for the purpose of Section 40.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
For our part we think that with the passing of the years the courts in England have been developing a much more liberal approach to the connecting link between 2 documents so as to enable, with the aid of parol evidence a memorandum to be spelt out that would satisfy Section 4 of the Statute of Frauds. Freeman v. Freeman (1891) 7 TLR. 431 and Pearce v. Gardner (1897) 1 QB 688 are but two examples of where reference was permitted by parol evidence to connect an envelope with the document inside it to fulfil a requirement of Section 4 of the Statute of Frauds that the name of the plaintiff be shown. – Lewis JSC. Ali Safe v. Northern States Marketing Board (1972)
⦿ SIMILAR JUDGEMENTS