⦿ CASE SUMMARY OF:
Bashiru A. O. Rosenje v. Madam Salamotu Bakare (1973) – SC
by PipAr Chima
⦿ LITE HOLDING
⦿ AREA OF LAW
Sale of land
Bashiru A. O. Rosenje
Madam Salamotu Bakare
(1973) JELR 45947 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
G. B. A. Coker, JSC.
* FOR THE APPELLANT
* FOR THE RESPONDENT
The plaintiff by his pleadings states that the defendant agreed to sell to him the land of the price of 600 (six hundred pounds) and that in pursuance of the said agreement and the payment of the said amount to her, the defendant gave him authority to register the property in her own name under the Registration of Titles Act, Cap. 181 (1958 Laws of Nigeria) and also a purchase receipt signed by her husband on her behalf.
On the other hand the defendant pleads that the agreed price was 2,000 (two thousand pounds) and that the amount of 600 pounds paid by the plaintiff to her was only a part payment, that she never authorized her husband to execute any purchase receipt in favour of the plaintiff and that as the plaintiff would not pay the balance of 1,400 (one thousand four hundred pounds) she had repudiated the contract of sale by her letter dated the 20th day of October, 1969 addressed to the plaintiff and in which she enclosed her cheque for the amount of 600 paid by the plaintiff to her.
The plaintiff’s claim against the defendant is for specific performance of the sale by the defendant to the plaintiff of a piece or parcel of land situate, lying and being at Shifawu Street, Surulere, adjacent to No. 55, Western Avenue, Surulere, covered by land certificate No. MO 3434 in the Land Registry, Lagos and Plan No. ASA: 397/53 of 30th October, 1953. the defendant sold the said piece or parcel of land to the plaintiff on the 27th day of August, 1969 for the sum of 600 (six hundred pounds) but thereafter refunded/neglected to execute the necessary transfer of the said piece or parcel of land to the plaintiff despite repeated demands.
The defendant counterclaimed: TAKE NOTICE that the defendant herein counterclaims for the delivery by the plaintiff to the defendant of land certificate No. MO 3434 of the Land Registry Office Lagos, which said certificate the plaintiff collected from the lands Registry Office, Lagos for and on behalf of the defendant. The plaintiff has refused and/or neglected to deliver up the said land certificate No. MO 3434 despite repeated demands.
The Trial Court gave judgement in defendant’s favour. Plaintiff has appealed.
1. Whether the defendant’s husband validly acted for the defendant?
2. Whether there was a valid sale of the land to the plaintiff (appellant)?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In the course of his judgment and on this point the learned trial judge observed with reference to the evidence of the husband of the defendant that he had stated in his evidence that he did not have the authority of his wife to sign the receipt and he eventually concluded that he was not authorized by the defendant to sign the receipt for her. With all respect, we think that the inferences drawn by the learned trial judge from the indisputable fact are not as probable as the inferences which he had rejected. Gisanrin is the husband of the defendant and had given evidence to the effect that he knew only precious little about the agreement between his wife and the plaintiff. He did not actually receive the money and stated that he only knew of the payment by looking up the bank tellers of his wife. If this is all so, then clearly unless he was her agent, he was undertaking quite too much to sign a receipt containing the detailed particulars in exhibit 1, the more so as he is literate, and had only just taught his wife to print her name on paper. The question may then be asked on whose behalf he signed if not on the authority of his wife who is illiterate and on whose behalf (in order to make sure about the payment) he examined her bank teller which was willingly produced to him for inspection. According to him at the material time the defendant was out of town and he had no obligation otherwise than as her lawful agent to sign a receipt for her, and if one were to go by his evidence the measure of ignorance of the contract which he had ascribed to himself is sufficient to compel him to refuse to sign exhibit 1. A court of appeal does not interfere with findings of fact by a court of trial unless there has been a misconception of the facts in evidence.
ii. The learned trial judge in his consideration of this same point stated that he did not believe the testimony of the plaintiff with respect to the circumstances under which the document exhibit 1 was made. But that was not the issue before him. In any case it is the duty of the defendant to give the plaintiff a receipt for the payment made to her and in no one of her letters and those of her solicitor did she complain that her husband did not lawfully sign a receipt for her. Besides this, it is nowhere pleaded by the defendant that the execution of exhibit 1 was induced by fraud or that it is not est factum.
iii. We are satisfied both from the circumstances of the case and the pleadings as well as the contents of the document itself, that the defendant’s husband signed exhibit 1 as her agent in pursuance of a general authority he always had to act for her.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. With this direction no one can quarrel and the exposition of the legal situation is unassailable, but it must be referrable to the actual facts of the case. The plaintiff’s case is that the purchase receipt exhibit 1 contains all the material terms of the contract-the parties, an accurate description of the land and the agreed price. It is of course unnecessary that the memorandum should carry an undertaking to transfer the land to the purchaser, for manifestly that is the inevitable legal consequence of their bargain.
ii. The question for him to decide was whether the document exhibit 1 shows the contract price and for this he had only to construe the plain meaning of the contents of that document as the deed of the defendant. Exhibit 1 describes the amount of 600 pound as “amount paid for a piece of land at Western Avenue, Surulere..” The defendant claimed that it was a part payment, but exhibit 1 does not say so. The amount is described as a payment for the land and unless qualifying words are inserted in the text, to that effect, it is wrong to import them. Logically what is described as the payment for land could not have been merely a part payment or an earnest, without such qualifying words being imported into the text. the defendant’s agent signed exhibit 1 and transferred it to the plaintiff who contends that the amount shown thereon is a full payment or discharge as stated on exhibit 1. It is therefore the duty of the maker of the document to establish that the word payment or amount paid in the document which he (or she) had made meant only part payment which he had not inserted therein.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Coker JSC
The appeal therefore succeeds and it is allowed. The judgment of the High Court, Lagos in Suit No. LD/631169 including the order for costs is set aside.
We make the following orders:-
1. We enter judgment for the plaintiff as per his writ of summons and order that the defendant shall forthwith specifically perform the contract of sale of her land at Shifawu Street, Surulere for the plaintiff. This shall be the judgment of the court.
2. We order that within 14 days hereof, or such further time as shall be allowed by the High Court, Lagos (Lagos State) the defendant shall execute in favour of the plaintiff a Form 7 (or such other form as may be provided by law for the transfer of registered freehold land, for the transfer of the said land to the plaintiff in consideration of the amount of 600 already paid to her by the plaintiff as evidenced by the purchase receipt exhibit 1 and we direct that the court below i.e. the High Court of Lagos shall carry out this order.
3. We order that the defendant (or respondent) do pay the costs of these proceedings fixed in this Court at ₦150 and in the court below at ₦50.
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
Section 5(2) of the Law Reform (Contracts) Act, 1961 reads:- “No contract to which this section applies shall be enforceable by action unless the contract or some memorandum or note in respect thereof in writing and signed by the party to be charged therewith or by some other person lawfully authorized by him.”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
The first rule about the construction of documents enjoins that the simple natural meaning of words be ascribed to them unless this is impossible, and the defendant is severely precluded from giving oral evidence to disparage the clear expressions already reduced by her or for her into writing. We have come to the conclusion in this respect also that the learned trial judge had not given the document exhibit 1 its natural and ordinary meaning and that on a close reading and study of that document it is manifest that the defendant states in exhibit 1 that the amount of 600 was the purchase price of the land which she had contracted to sell to the plaintiff. – Coker, JSC. Rosenje v. Bakare (1973)
We think that this direction has only a dubious application to the facts of this case. First of all it should be realized that the agent need not be authorized in writing. See Heard v. Pilley (1869) L.R. 4 Ch. App. 548 (esp. per Selwyn L.J. at pp. 551, 552); and indeed the name and the identity of the principal on whose behalf the agent acts need not be disclosed; It is the duty of the court in all cases to study the memorandum referred to and then to draw the correct inferences from its contents. In the case of Davies v. Sweet (1962) 2 Q.B. 300, Danckwerts L.J. (delivering the judgment of the Court of Appeal) observed concerning this same point as follows at pp. 305. “But such an authority may be conferred upon an estate agent expressly or may be inferred from the circumstances of the case. It seems to me that authority to enter into a contract on behalf of the defendant should be inferred from the circumstances of this case. The way in which Phillips (the elder) dealt with the plaintiff suggests that he had authority to enter into a contract for the sale of the property and to fix the price, and the letters written by the defendant seem to me to confirm this position.” – Coker, JSC. Rosenje v. Bakare (1973)
⦿ SIMILAR JUDGEMENTS