ADENEYE & ANOR v. YARO (2020)

ADENEYE & ANOR v. YARO

(2020)LCN/14238(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/L/266/2002

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

(1) SUNDAY ADENEYE (RE-SUBSTITUTED FOR ALHAJI POPOOLA SALAMI (DECEASED) (2) DISU ADEKANMI OROLEYE APPELANT(S)

And

ALH BUKAR YARO RESPONDENT(S)

RATIO

WHETHER OR NOT THE EVALUATION OF EVIDENCE AND WITNESSES IS EXCLUSIVELY RESERVED FOR THE TRIAL COURT

The age-long established principle of law is that evaluation of evidence and ascribing probative value to it in any proceeding is the exclusive preserve of the trial Judge who had the advantage of seeing and hearing the witnesses. In the case of Otogbolu V. Okeluwa & Ors.(1981) LPELR- 24881 (SC), Obaseki J.S.C. held that:
“The trial Judge has the essential advantage of seeing and hearing the witnesses and watching their demeanour, an advantage not available to the judges of the Court of Appeal and which plays a very vital role in the evaluation and assessment of the probative value of evidence and the credibility of the witnesses and generally in the adjudication process…. On an appeal against the judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the Appellant satisfy the Court that the Judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence, the Court of Appeal will have special regards to the fact that the Judge saw the witnesses.”
See also Ayinde V. State (2018) LPELR-44761 (SC), Omotayo V. Co-opertive Supply Association (2010) LPELR-2662 (SC) and Tope V. State (2019) LPELR-47837. PER ALIYU, J.C.A.

STANDARD OF PROOF OF CIVIL CASES

How then should a trial Judge discharge this primary duty of evaluation of evidence and ascribing value to it in order to arrive at the right decision. It should be noted, as a starting point, that civil cases are decided on the balance of probability and the preponderance of evidence led and this cardinal principle of law is embedded in Section 134 of the Evidence 2011. See also Wachukwu & Anor. V. Owunwanne & Anor. (2011) LPELR-3466, where the Apex Court provided guidance to the trial Courts thus:
“…In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore in deciding whether a certain set of facts was given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it.” ….After all civil cases are decided on the preponderance of evidence and unless a Plaintiff’s case is so patently incredible and unreasonable a trial Court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates…” PER ALIYU, J.C.A.

ESTABLISHED PRINCIPLE ON THE ACQUISITION OF EQUITABLE INTEREST IN A LAND

In the case of Ohiaeri V. Yusuff & Ors. (2009) LPELR-2361 (SC), the Apex Court held that:
“The established legal principle is that where there is an agreement for sale of land either under native law and custom or any other mode of sale and for which the purchaser, acting within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is in furtherance thereof put in possession, he has acquired an equitable interest in the property and which interest ranks as high as a legal estate and cannot therefore be overridden by a subsequent legal estate created by the same vendor or his legal representative in favour of another person…”
The Apex Court further held in the above cited case that the emphasis is on payment of agreed full or part of the purchase price coupled with possession and possession includes constructive possession. See also Ahmed V. Abu & Anor. (2016) LPELR-40261 (CA). PER ALIYU, J.C.A.

WHETHER OR NOT SPECIFIC PERFORMANCE CAN BE ORDERED IN ALL CASES

I found that specific performance is appropriate in the circumstances of this case. It is a case of sale of land, and I have stated the circumstances of the case supra. In the case of Misa V. Ahmad (2018) LPELR-44247 (CA) this Court per Abiriyi, JCA stated the attitude of Courts in considering granting a decree of specific performance as follows:
“…In cases where there is a subsisting contract or agreement for the sale of land, the Court being a Court of equity is always inclined to grant specific performance because the land being sold may have a peculiar value or significance to the purchaser. See Ezenwa vs. Oko & Ors (2008) LPELR – 1206 SC. page 16 per Onnoghen JSC (as then was now CJN)…” PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): The instant appeal emanates from the decision of the Lagos State High Court, holden at Ikeja (trial Court) in respect of Suit No: ID/1264/88 delivered on the 4th day of April, 1997. The Respondent was the Claimant/Plaintiff while the 1st and 2nd Appellants were the defendants before the trial Court. By his writ and amended statement of claim located at pages 2 to 6 of the bundles of documents/record of appeal, the Respondent sought for the following reliefs against the 2nd defendant:
1. An order for specific performance of the mutual oral agreement with the plaintiff for the re-sale of the said property situated, being and known as No. 16 Tinubu Street, Alapere, Ketu, Lagos State after payment of the balance of the re-purchase price of N110,000.00 (One hundred and Ten Thousand Naira) out of which the sum of N70,000.00K (Seventy thousand Naira) has been paid.
2. A perpetual injunction against the 2nd defendant, her servants/agents or privies from going on to the said property known as No. 16, TInubu Street, Alapere, Ketu, Lagos State.
3. A declaration that the Plaintiff would be

entitled to a statutory right of occupancy to the property at No. 16, Tinubu Street, Alapere, Ketu, Lagos State after the payment of the balance of the re-purchase price of N110,000.00K (One Hundred and Ten thousand Naira.)

BACKGROUND OF FACTS
The Respondent as the plaintiff was the original owner of a landed property known as No. 16 Tinubu Street, Alapere, Ketu, Lagos, and he sold same to the 2nd defendant at the price of N85,000, and he paid the said price in installments. However after the completion of payment but before execution of deed of assignment, the Respondent approached the 2nd Appellant and proposed to re-purchase the same property at N110,000, a price that was N25,000 above the price the 2nd Appellant purchased the property. Apparently, the 2nd Appellant agreed after which the two parties resolved that there was no need to execute any deed of assignment for the earlier transaction. The parties also agreed that the re-purchase price would be paid to the 2nd Appellant in installments out of which the Respondent paid a total of N70,000 to the 2nd Appellant.

The Appellants however denied the claim of the Respondent in terms of their

respective statements of defence. During the trial, the Respondent testified as PW1 and called one witness (PW2) who acted as agent in the transaction, while the defendants also each testified and they called a total of seven witnesses in defence of the claims. Thereafter, counsel on both sides addressed the trial Court and the matter was adjourned for Judgment. The learned trial Judge after considering the parties respective cases found and believed the plaintiff’s evidence, thereby entered judgment in his favour granting all the reliefs claimed against the defendants.

The Appellants felt aggrieved by the judgment of the trial Court and each of them appealed separately to this Court. The 2nd Appellant first filed his notice of appeal on the 3rd July 1997 located at pages 118 to 120 of the record of appeal compiled and transmitted by him on the 1st July 2002. He relied on four (4) grounds of appeal numbered 3(a) to (e) respectively. The 1st Appellant’s notice of appeal was filed on the 13th May 2013 but deemed properly filed on the 7th June 2013 contained in the additional record of appeal transmitted on the 15th September 2015. He relied on

four grounds of appeal contained therein.

The 1st Appellant’s amended brief of argument was settled by Francis Ogunbowale Esq. and filed on the 4th April 2018 but deemed properly filed and served on the 13th April 2018. At page 6-7 paragraph 4.0, of the said brief, the following five (5) issues were formulated from the four (4) grounds of appeal:
i. Whether there existed any enforceable contract between the 2nd Appellant and the Respondent as at the time and 2nd Appellant purportedly sold the building/land in dispute to the Appellant.
ii. If any enforceable contract existed between the 2nd Appellant and the Respondent at the time of the sale to the 1st Appellant, whether such contract is binding on the 1st Appellant, who asserted that he was an innocent third-party purchaser for value without notice.
iii. Whether the trial Court exercised its discretion judicially and judiciously by its refusal to visit the locus in quo in view of the conflicting evidence already adduced before it in respect of the improvement/physical condition of the property in dispute.
iv. Whether the lower Court’s final decision could be sustained in

view of the available evidence before it.
v. Whether the trial Court was right in failing to consider and pronounce on the question of whether the Plaintiff/Respondent was entitled to an order of specific performance having regards to the evidence of Exhibit D14 which clearly shows that the Plaintiff/Respondent issued a dishonoured cheque as part of the consideration for the property in dispute and his failure to pay the full consideration within the agreed period for the said property in dispute.

Issues I, II and V are formulated from grounds 2 and 3 of appeal, that is to say, more than one issue is formulated from one ground of appeal. I shall return to this matter later. Issue IV is distilled from ground 4 of appeal.

The 2nd Appellant’s brief of argument was filed on the 1st July 2002 containing 12 pages, and at page 3, he proposed the following 4 issues for determination:
i. Whether the trial Court considered and properly evaluated or evaluated at all the evidence adduced and Exhibits tendered by the 2nd Appellant and the witnesses before accepting and believing the evidence of the Respondent and his witnesses as more cogent,

credible and more probable and accepted it. (Ground 3 (b) & (e))
ii. Whether time was of the essence of the oral agreement of the resale of the disputed property. (Ground 3(a))
iii. Whether specific performance would be ordered in all circumstances of the case. (Grounds 3(c) & (d))
iv. Whether in view of the conflicting evidence or otherwise of physical development on the disputed land, the trial Court ought not to have considered a visit to the locus quo. (Ground 1)

The Appellant’s reply brief was filed on the 28th November 2018 but deemed properly filed and served on the 11th March 2020.

The Appeal came up for hearing before us on the 11th March 2020 and the learned counsel of parties adopted their briefs of argument. The Appellants’ learned counsel adopted their respective briefs of argument and urged the Court to allow the appeal and to set aside the judgment of the trial Court, while the Respondent’s learned counsel prayed the Court to dismiss the appeals of the Appellant and affirm the judgment of the lower Court.

PRELIMINARY OBSERVATION
A close examination of the 1st Appellant’s notice

of appeal aforementioned reveals that he relied on three main grounds of appeal with the fourth being the omnibus ground. However, the 1st Appellant formulated his issues (i), (ii) and (v) from grounds 2 & 3. See page 7 of his amended brief of argument adopted by his counsel at the hearing of the appeal. It means that the formulated issues outnumbered the grounds of appeal by one, to the effect that more than one issue among the three are formulated from one ground of appeal. The law is now settled beyond any argument that a party is only permitted to formulate one issue from one or a combination of grounds of appeal but it is not permissible to formulate more than one issue from one ground of appeal. See Uwazurike & Anor. V. Nwachukwu & Anor (2012) LPELR-19659 (SC) and Okponipere V. State (2013) LPELR-19931 (SC). Indeed in the case of Society Bic S.A. & Ors. V. Charzin Ind. Ltd (2014) LPELR- 22256 (SC) Ngwuta, J.S.C. held that:
“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said

principle… A ground of appeal should not be split to raise two issues… The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.”
I rely on the above decision of the Apex Court and hold that the 1st Appellant’s issues I, II and V formulated from grounds 2 and 3 are illegal and incompetent and they are hereby struck out together with all the argument canvassed on them. Consequently, the 1st Appellant’s grounds 2 and 3 of appeal are deemed abandoned and struck out as well. However 1st Appellant’s issues III and IV formulated from grounds 1 and 4 are competent and argument thereon will be considered in this appeal.

Similarly, it is observed that there are four grounds of appeal numbered 3(a) to (e), with ground (e) being the omnibus ground in the 2nd Appellant’s notice of appeal. None of the said grounds of appeal is numbered 1 from which his issue iv above is said to be formulated. The 2nd Appellant’s issues I to III actually exhausted his four grounds of appeal having

been formulated from grounds 3(a) to (e) and so ground iv is at large and goes to no issue. It is hereby struck out.

Having given due consideration to the issues formulated by the parties, vis-a-vis the grounds of appeal from both notices of appeal, it is observed that the 1st Appellant’s issue number iv is the same in context with the 2nd Appellant’s issue (i). I therefore compress the two into one issue. And I hereby adopt the 1st Appellant’s issue iii together with the 2nd Appellant’s issues (i) to (iii) for the determination of this appeal. Thus, the appeal will be determined on the following four issues:
1. Whether the trial Court considered properly or evaluated at all the evidence adduced and Exhibits tendered by the Appellants and their witnesses before the accepting and believing the evidence of the Respondent and his witnesses as “more cogent, credible and more probable” and accepted it. (Compressed 1st Appellant issue iv and 2nd Appellant’s issue i)
2. Whether time is of the essence of the oral agreement for the resale of the disputed property. (2nd Appellant’s issue ii)

Whether the trial Court exercised its discretion judicially and judiciously by its refusal to visit the locus in quo in view of the conflicting evidence already adduced before it in respect of the improvement/physical condition of the property in dispute. (1st Appellant’s issue iii).
4. Whether specific performance could be ordered in all the circumstances of the case. (2nd Appellant’s issue 3)
The four issues will be resolved seriatim.

SUBMISSIONS OF COUNSEL
On issue one, the learned 1st Appellant’s counsel argued same under his issue iv at pages 16 to 17 of the 1st Appellant’s amended brief wherein he argued that the learned trial Judge failed to first consider the evidence of the Respondent (as the plaintiff) and where the plaintiff’s evidence is found to be unsatisfactory, it is only then the evidence of the Appellants (as defendants) will be considered. Otherwise, he ought to place the evidence lead by the two sides on the imaginary scale of justice, weighed it and decide upon the preponderance of credible evidence which side has more weight. See Nneji V. Chukwu (1996) 12 SCNJ 388 at 395 in support of the

submission. He contended that in this case, the learned trial Judge did not follow this approach, rather he reviewed the evidence led by each party but failed to evaluate them and ascribe reasoning for his finding of fact. He referred us to page 111 line 8 of the record of appeal where the learned trial Judge simply held that he placed the totality of the evidence of each party on the imaginary scale and he found the Respondent’s evidence more credible than the Appellants’. This Court is urged to interfere with the said finding and proceed to evaluate the evidence of the parties, especially exhibit P4 which is a manipulated document the Respondent used to deceive the trial Court. Further submitted that the issuance of a dud cheque was raised before the trial Court, but the learned trial judge did not make any pronouncement on this issue in his judgment. He relied on Ayanwale V. Atanda (1988) 1 SC 1 in support and in urging the Court to resolve the issue in favour of the Appellants.

The learned 2nd Appellant’s counsel argued issue one from pages 4 to 6 of the 2nd Appellant’s brief of argument which is similar to the 1st

Appellant’s counsel argument supra. He posited in addition that the learned trial Judge failed to show in its judgment the rationale for holding that the Respondent’s case was more credible, cogent and more probable. He contended that the evidence of the parties actually reveals the opposite of the holding of the trial Court, because the Respondent’s case before the trial Court was characterised by conflicting and inconsistency between his pleading and evidence and was manifestly unreliable. He referred to paragraph 5 of the Respondent’s reply to the 2nd Appellant’s statement of defence contradicted paragraphs 9 to 10 of the same reply (at page 14 to 15 to 29 of the record), and also contradicted the evidence of PW1, DW2, exhibit P1 (deed of assignment, exhibit P2 (purchase receipt), exhibit D1 and D2.

Similarly, the pleadings of the Respondent in paragraphs 6 and 11 of his replies to the 2nd defendant’s statement of defence and 1st defendant statement of defence, to the effect that the 2nd defendant was never put in to physical possession of the disputed property by the Respondent was contradicted by evidence of PW1

and exhibits D3 to D10 (photographs of handing over) contained at pages E14 to E18 of the record of appeal.

That the pleadings of the Respondent in his paragraphs 7 and 12 of reply to 2nd amended statement of defence of the 2nd defendant to the effect that PW1 acted as agent for both Respondent (Plaintiff) and 2nd Appellant (2nd defendant) was contradicted by the evidence in chief of the said PW1. The learned 2nd Appellant’s counsel contended that the Respondent’s conduct before the trial Court smacked of fraud and his witness was caught in deliberate falsehood all calculated to deceive the trial Court. He stated the instances of this fraud to include payment of N20, 000 after the case was instituted to make up the N70, 000, evidence of PW1 was contradictory, the reliance of the Respondent of manipulated exhibit P4 to deceive the trial Court that he undertook work on the disputed property and the issuance of dud cheque which amounted to a criminal offence under the Dishonored Cheques Act, Cap. 102 LFN 1990.

The learned 2nd Appellant’s counsel did contend that the trial Court’s acceptance of the contradictory evidence of the

Respondent as cogent and reliable contradict the Supreme Court’s decision inAyanwale V. Atanda (1988) 1 SC 1 to the effect that an inconsistent witness in his evidence does not deserve to be described as truthful. He submitted that where the trial Court failed to properly evaluate the evidence before it as a result of which it reached a perverse decision such as in this case, this Court has a duty to evaluate the evidence adduced by the parties. He relied on the decision of Alhaji Sunmonu Agbabiaka V. Okanlawon Saidu (1998) 7 SCNJ 305 at 318 and Hayaki v. Dogara (1993) 8 NWLR (pt. 313) 586 at 599 in support.

The 2nd Appellant’s issue two was argued from page 6 to 7 of his brief, in the main that he pleaded in paragraph 5(b) and (d) of his statement of defence that time within which to pay the balance of the re-purchase price for the disputed property was of the essence which was merely generally denied by the Respondent. That the 2nd Appellant also led credible evidence (pages 76 lines 25 to 26 of the record) that the payment will be paid in May 1988 and he was not cross-examined on this evidence. Relying on the cases of

Lewis & Peat V. Akhimien (1976) 7 S.C. 154 at 163 and Amadi V. Nwosu (1992) 5 NWLR (pt. 241) 273 at 284, he argued that the trial Court ought to, but failed to accept as the truth the evidence of the 2nd Appellant which was the only evidence in support of the fact that time for payment of the purchase price was of the essence. That even the Respondent tacitly agreed under cross examination that time was of the essence but the trial failed to consider and made no findings on evidence before making a finding at page 111 lines 33-34 of the record) to the effect that no time limit was discussed. It was submitted on the authority of Nlewedim V. Uduma (1995) 6 NWLR (pt. 402) 383 at 398, that where time is of the essence as in this case, the Respondent as the plaintiff was not entitled to judgment..

Issue 3 was argued by the 1st Appellant from pages 12 to 16, paragraphs 5.2.1 to 5.3.7 of the 1st Appellant’s amended brief. The learned Counsel referred to exhibits P3-P9 (pages E5-E11 of the record) to submit that these receipts relied upon by the trial Court in proof of the claim of the Respondent that he expended N400,000 for purchase of fixtures on the disputed land were

unreliable because there was more than one writing on them. In particular, exhibit P4 was altered, as such it is legally dead and no party can rely on it. He referred to the case of Orji V. Dorji Textile Mills (Nig.) Ltd (2010) All FWLR (pt. 519) 999 at 1020 (SC) in support. It was posited that the learned trial Judge relying on these exhibits to make order of specific performance in favour of the Respondent has inflicted hardship on the 1st Appellant who purchased the disputed property from the 2nd Appellant for N140,000 as evidenced by exhibits D11 (page E22 of the record). He was also let into possession by the 2nd Appellant after which he resumed construction on the disputed property. See the evidence of DW1, DW3, DW4 and DW5 at pages 53 to 58 of the record of appeal. That failure of the trial Court to consider the hardship inflicted to the 1st Appellant made the order of specific performance granted in favour of the Respondent to be in error (per incuriam), especially as the conduct of the Respondent was tainted with fraud and was tricky and unfair because he issued a dud cheque to the account of the 2nd Appellant’s husband.

It was further contended that the failure of the learned trial Judge to visit the locus in quo upon the application of the 1st Appellant (pages 81 to 84 of the record of appeal) was fatal to the case of the Respondent in view of the contradictory evidence of the parties regarding the present physical features of the disputed property. He relied on the cases of Niger Construction Ltd V. Okugbeni (1987) 12 S.C. 108 at 117, Enigwe V. Akaigwe (1992) 2 NWLR (pt. 225) 505 at 510 and Nlewedim V. Uduma (supra) in support of his submissions.

Issue four (4) was argued at pages 7 to 10 of the 2nd Appellant’s brief under his issue 3. The learned counsel submitted that though the learned trial Judge stated the correct equitable principle of law that specific performance being an equitable relief can only be issued where damages could not adequately remedy the breach of complained of; regrettably however he misapplied the principle in this case. That the learned trial Court disregarded the case of Nlewedim V. Uduma (supra) cited to the effect that inter alia that specific performance being an equitable remedy cannot be enforced by a party who failed to pay the contract price

where time is of the essence. Learned counsel repeated his argument from issue one supra on the conduct of the Respondent of issuing dud cheque and concluded that though the Respondent paid part of the purchase price of the disputed property, but that alone cannot entitle him to specific performance since it was not done pursuant to the agreement between him and the 2nd Appellant.

The Respondent argued this appeal in terms of his two issues formulated at page 2 paragraph 3.1 of his amended brief of argument. Regrettably, however, the two issues were not married to any of the grounds of appeal thereby leaving them at large. Counsel must adhere to the admonition of this Court, per Salami JCA in the case of NEPA V. Ango (2001) LPELR-5933 (CA) where His Lordship held:
“I wish to observe that neither counsel in their respective briefs, related the issues framed to any of the grounds of appeal. This is not good enough. A ground or a number of grounds of appeal should be related to issues. When the issue is successfully canvassed and resolved in favour of the appellant the ground or grounds of appeal related thereto are found successful and are allowed

otherwise they fail and are dismissed. In the present circumstance, one finds it impossible to determine successful or unsuccessful grounds of appeal on resolution of a particular issue. I believe that problems such as these should not continue to linger on more than two decades after the introduction of brief writing in our procedure and practice.”
Nevertheless, I will proceed to consider the arguments of the Respondent as canvassed on his two issues. On issue one, the learned Respondent’s counsel submitted that the trial Court’s findings of fact that the 2nd Appellant resold the disputed property to the Respondent; that the Respondent paid a deposit and that no time limit was placed on the time for the repayment of the balance means that the agreement foreclosed any bargain for the sale of the property by the 2nd Appellant to the 1st Appellant.

Moreover, that the affirmation by the 1st Appellant of the fact that the 2nd Appellant agreed for the Respondent to re-purchase the disputed property is very weighty and important, and equity will not allow the 2nd Appellant to take advantage of absence of written contract. That equity was on the

side of the Respondent. That the 1st Appellant failed to prove that he is a purchaser for value without notice, especially as the Respondent was put in the possession of the said property. That, if the Respondent had inspected the property at the time of purchase or inquire from the Respondent, which a reasonable purchaser ought to do, he would have notice of the interest of the Respondent. He relied on the cases of Karimu Ayinla V. Sefawu Sijuwola (1984) 5 S.C. 44 and Orasanmi V. M. O. Idowu (1957) F.S.C. 40 to submit that whether land is sold without executing a formal deed, it means that if the purchaser is in possession for a long time, it matures into a legal estate and inequitable interest created cannot supercede same.

Further argued that the complaint of the Appellants as regards the conduct of the Respondent, that he was never let into possession of the property, that time was of the essence; that the 1st Appellant was a bonafide purchaser for value without notice and that the 1st Appellant was met with hardship by the grant of specific performance are factually incorrect and have no basis or justification in law. The Court was urged to so hold.

With regards to the Respondent’s issue two, the learned counsel submitted that by the provisions of Section 127 of the Evidence Act 2011, a visit of locus in quo is not a mandatory procedure but entirely at the discretion of the trial Judge. He further argued that considering the nature of the claim before the trial Court, which was for specific performance of a contract of sale of property, there was no need for the trial Court was justified to refuse the application of the Appellants for visit to locus in quo. He posited that the way and manner the trial Court handled the suit did not occasion any miscarriage of justice.

Further submitted that an appellate Court should not ordinarily disturb or tamper with the findings of facts made by a trial Court particularly if such findings and conclusions reached are supported by credible evidence. That this principle of law is premised on the fact that the duty of appraising of evidence led at the trial is preeminently that of the trial Judge who saw and heard the witnesses. He relied on the cases of Emarieiru V. Ovirie (1977) 2 S.C. 31, Nor V. Tarkaa (1998) 4

NWLR (pt. 130) at 139 and Mogaji V. Odofin (1978) 4 S.C. 91 in support of his submissions.

Conclusively, the learned Respondent’s counsel drew the Court’s attention to the fact that the complaint of the Appellants is not that a misdirection on the part of the learned trial Judge which will justify this Court’s interference. Their complaint is the refusal of the trial Judge to visit the locus in quo and it was submitted that this grievance is not one of the exceptions to the general rule that an appellate Court will not ordinarily tamper with the finding of fact of the trial Court that was supported by credible evidence. He urged the Court to so hold and to dismiss this appeal.

The 1st Appellant filed reply brief in which he posited that the mere oral agreement without substantial performance and possession of the res is not sufficient for that party to be granted equitable remedy of specific performance and statutory right of occupancy. Secondly, the judgment of the trial Court is subject to the condition of payment of the balance of the purchase price, which if not paid would make the 1997 judgment unenforceable. Finally that the trial

Court did not exercise its discretion judicially and judiciously when it refused to visit the locus in quo to resolve the contradictory evidence led by the parties.

RESOLUTION
ISSUE ONE:
Issue one raises the question of evaluation of evidence by the learned trial Judge. The Appellants’ complaint under this issue is that the learned trial Judge failed to properly evaluate the evidence led by the parties and also failed to state reasons for making the findings of facts made. As such, the Appellants’ posited that the decision of the trial Court was perverse and this Court should interfere to set it aside.

vital role in the evaluation and assessment of the probative value of evidence and the credibility of the witnesses and generally in the adjudication process…. On an appeal against the judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the Appellant satisfy the Court that the Judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence, the Court of Appeal will have special regards to the fact that the Judge saw the witnesses.”
See also Ayinde V. State (2018) LPELR-44761 (SC), Omotayo V. Co-opertive Supply Association (2010) LPELR-2662 (SC) and Tope V. State (2019) LPELR-47837.
How then should a trial Judge discharge this primary duty of evaluation of evidence and ascribing value to it in order to arrive at the right decision. It should be noted, as a starting point, that civil cases are decided on the balance of probability and the preponderance of evidence led and this cardinal principle of law is embedded in Section 134 of the Evidence 2011. See also Wachukwu & Anor. V. Owunwanne & Anor. (2011) LPELR-3466, where the Apex Court

provided guidance to the trial Courts thus:
“…In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore in deciding whether a certain set of facts was given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it.” ….After all civil cases are decided on the preponderance of evidence and unless a Plaintiff’s case is so patently incredible and unreasonable a trial Court is bound to carefully consider the competing evidence of the parties to determine in whose favour the evidence preponderates…”

I have stated the facts of this case supra, which are not substantially in contention. The Respondent as the owner of the disputed landed property sold it to the 2nd Appellant

who paid him by installments the purchase price of N85,000. The final payment was made in December of 1986. Two years later in the year 1988, the Respondent approached the 2nd Appellant for the purpose of re-purchasing the property to which the 2nd Appellant agreed at the price of N110,000. The Respondent paid N70,000 to the 2nd Appellant. However, the 2nd Appellant re-sold the same property to the 1st Appellant at the higher cost of N140,000.

The case of the 1st Appellant before the trial Court (as shown in his amended statement of defence (at pages 0000007 to 0000008 of the record) and in this appeal is that he was an innocent purchaser of the disputed property without any notice of the interest of the Respondent and that he was put in possession of the disputed property by the 2nd Appellant.

The 2nd Appellant in her amended statement of defence (located at pages 0000011 to 0000013) denied agreeing to re-sell the said property to the Respondent and posited that she only gave the property to an agent (PW1) to re-sell for her. He initially told her that he found buyer, but when the cheque of N20,000 issued by the said buyer was returned unpaid, she

told her agent to find another buyer. The 1st Appellant was the 2nd buyer found and he purchased the property for N140,000.

The vexed judgment of the trial Court is contained at pages 0000105 to 0000114 of the record of appeal. A close scrutiny of the judgment shows that the learned trial Judge started by stating the case of the Respondent (plaintiff) from his pleadings and evidence adduced. (See pages 0000105 to 0000107). He then considered the case put up by the 1st and 2nd Appellants from pages 0000107 to 0000109 of the record, after which he considered the final addresses of each counsel from pages 0000109 to 0000110. He relied, adopted and applied the principle of law laid down in Mogaji & Ors. V. Odofin & Ors. (1979) 4 SC 91 at 98, and proceeded to weigh the evidence led by each party on that imaginary scale of justice in order to see which sides was heavier. The learned trial Judge found and identified the fact in issue, that is, what the real question in controversy between the parties was, thus:
“In this suit, there is no dispute about the first sale. It is the second sale or re-sale that had given rise to this litigation. I

find the following facts proved to my satisfaction….”

He then concluded at page 000112 that the 2nd Appellant is caught by the legal maxim nemo dat quod non habet consequently concluded that the interest of the Respondent takes priority over that of the 1st Appellant.

I have also scrutinized the record of appeal, particularly the evidence of the witnesses during the trial as well as the documents tendered by each party in support. The entire case is based on the interest of the Respondent in the said property, which was no doubt re-sold to him by the 2nd Appellant. Even if the 2nd Appellant never met the Respondent as she claimed or denied having any meeting with the Respondent and PW1 (the agent), this did not take away the fact supported by evidence that indeed the property was re-sold to the Respondent and in consideration he paid a total sum of N70,000 out of purchase price of N110,000. The evidence showed that this was the position as at the time the property was sold to the 1st Appellant, because the 2nd Appellant said she instructed the agent (PW1) to return the money paid by the Respondent. The evidence of this agent (PW1 was

crucial to this case, and contrary to the contention of the Appellant I did not see any material contradiction in his, (PW1) oral evidence.

Again both Appellants have complained on the documentary evidence

relied upon by the Respondent, particularly, exhibits P4. They contended that he used this exhibit to deceive the Court and made it grant him specific performance. Exhibit P4 is located at page E6 of the record and it is a receipt of purchase of some items in the name of the Respondent. The cost of the items stated is N9083 out of which N9000 was paid leaving a balance of N83: 00. I have not seen any manipulation or ‘two writings” on this receipt. Beside, exhibits P5 to P9 contained at pages E7 to E11 are also receipts of purchase of various building materials issued in the name of the Respondent. I find the argument against exhibit P4 as baseless.

On the appropriateness of granting specific performance, the law is that this equitable remedy will be granted once there exists a contract and the circumstances are such that make it equitable for the Court to decree specific performance. See Ohiaeri V. Yusuff & Ors. (supra). The circumstances of this case are that the 2nd Appellant after re-selling the property to the Respondent and receiving consideration also sold the same property to the 1st Appellant for higher price. It was in evidence

on record that the agreement between the Respondent and the 2nd Appellant was that the re-sold purchase price would be paid in installments, just as the 2nd Appellant earlier paid the Respondent for the property in installments. There is no evidence led before the trial Court showing that the parties made time for payment of the essence, which could vitiate the contract and defeat the equitable right of the Respondent.

Therefore upon all I have stated supra, I cannot fault the approach taken by the learned trial Judge because it was a correct approach and he was on a firm legal ground in his perception and consideration of the case before him, and he applied the correct principle of law in resolving the questions in controversy. The learned trial Judge correctly evaluated and arrived at a right decision in view of the circumstances of the case. An appellate Court has no jurisdiction to engage in re-evaluation of evidence that was rightly evaluated by the trial Court. See Ayinde State (2018) LPELR-44761 (SC) and Omotayo V. Co-Operative Supply Association (2010) LPELR-2662 (SC). Issue one is resolved against the Appellants.

ISSUE TWO
This issue is whether time is of the essence for the payment of the re-sold property. It has been resolved in the course of resolving issue one above. There was no evidence on record supporting the contention that the 2nd Appellant and Respondent agreed on the time being of the essence for the repayment of the re-purchase price. Issue two is equally resolved against the Appellants.

ISSUE THREE
This issue is whether the learned trial Judge exercised his discretion judiciously and judicially when he refused the application to visit the locus in quo in order to see the developments made on the property. The ruling refusing the application for the visit to locus in quo was delivered on the 2nd August 1995 and it is contained in pages 0000082 to 0000084 of the record of appeal. In refusing the Application, the learned trial Judge held that the conflict in the evidence of the parties could be resolved without a visit to the property.

In my determination of issue one above, I noted that the real issue of controversy between the parties, that is, the plaintiff’s main complaint before the trial Court was the validity of the sale of the property to the 1st

Appellant while same was earlier re-sold to the Respondent. The developments made or not made on the property is not significant to the determination of the question in controversy. The learned trial Judge was therefore right to refuse to visit the locus in quo because it was not necessary. Issue three is resolved against the Appellants.

ISSUE FOUR
Issue four is whether specific performance can be ordered in all cases. Again in my determination of issue one regarding the learned trial Judge’s conclusion after correctly evaluating the evidence led by the parties, I found that specific performance is appropriate in the circumstances of this case. It is a case of sale of land, and I have stated the circumstances of the case supra. In the case of Misa V. Ahmad (2018) LPELR-44247 (CA) this Court per Abiriyi, JCA stated the attitude of Courts in considering granting a decree of specific performance as follows:
“…In cases where there is a subsisting contract or agreement for the sale of land, the Court being a Court of equity is always inclined to grant specific performance because the land being sold may have a peculiar value or significance

to the purchaser. See Ezenwa vs. Oko & Ors (2008) LPELR – 1206 SC. page 16 per Onnoghen JSC (as then was now CJN)…”

In this case, the learned trial Judge properly ordered specific performance in view of the circumstances of this case, and I cannot fault that decision. I therefore resolve issue four against the Appellants.

Having resolved all the four issues against the Appellants it means both their appeals failed and each of their respective appeal is dismissed by me for lacking in merit. The judgment of the trial Court delivered on the 4th April 1997 is affirmed by me. Parties shall bear their cost.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance, the succinct the leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, dismiss the appeal. I abide by the consequential orders decreed in it.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the leading judgment of my learned brother, B.B Aliyu, JCA, wherein he dismissed the appeal.

I am in agreement with the analysis and resolution of the

issues in the appeal, and I have nothing to add.

The appeal is dismissed by me too and I abide with the orders made as to costs.

Appearances:

FRANCES OGUNBOWALE ESQ. – for 1st Appellant
KUNLE A. CAREW ESQ. – for 2nd Appellant For Appellant(s)