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 Ogbum 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, j., who, after reviewing and analysing 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 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 by the same Chiefs and Headmen of Diobu as were expressed to be parties to agreement Exhibit “F”, and the other party to it was the then Governor of Nigeria, The agreement recites that it is supplemental to that the Chiefs and Headmen and Governor desire to vary the terms of the of the principal agreement (Exhibit “F”) “in the manner hereafter appearing”, and it then reads as follows:- “Now it is hereby agreed as follows:- “The purchase money to be paid to those Chiefs and Headmen shall be 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 purchase money fixed by the onglnal 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 and 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 because 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 and, 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 arguments 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 “F” 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 the land pursuant to Exhibit “F”, Exhibit” G”, incorporates, “the principal agreement” Exhibit “F” , subject only to the variations contained in “G”, and it was, as I have already said, executed, with the exception of Chief Wokekoro, deceased, who was replaced by Chief, Wokekoro Wali 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 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, 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 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 the agreement. Moreover Jeremiah Ume, 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 e 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 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 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 when the £7,500 was paid”.
It seems to me clear that the real objection 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 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
“another revision variation and modification” . In this connection it is relevant to observe that the plaintiff Joseph Wobo admitted in his evidence that “all Diobu instructed the Chiefs to write the petition. The Chiefs gave lawyer Alakija On behalf of the respondent Mr. De Winton submitted that Exhibits “F” 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 for 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.J., Nigeria. I concur. Coussey, J.A. I concur.
Appeal dismissed.