YUSUF v. HASSAN & ANOR (2022)

YUSUF v. HASSAN & ANOR

(2022)LCN/16650(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, January 26, 2022

CA/YL/145/18

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

ALHAJI YAKUBU YUSUF APPELANT(S)

And

1. ALHAJI ABDULLAHI HASSAN 2. HASSAN HAMIDU GAYA RESPONDENT(S)

RATIO

WHETEHR OR NOT EVALUATION OF EVIDENCE IS THE SOLE RESPONSIBILTY OF THE TRIAL COURT

Evaluation of evidence is the exclusive preserve of the trial Court. In LAFIA LOCAL GOVERNMENT VS. EXECUTIVE GOVERNOR NASARAWA STATE & ORS (2012) LPELR – 20602 (SC) P. 23, PARAS. E – F, His lordship, Rhodes Vivour, JSC explained what evaluation of evidence entails thus:
“Evaluation of evidence entails the trial Judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side appears to outweigh the other. See MOGAJI VS. ODOFIN (1978) 4SC P.9.”
See also ECOBANK PLC VS. MOHAMMED (2014) LPELR – 23990 (CA) PP.24 – 25, PARAS. B – C, CHUKWU CONSTRUCTION CO. LTD VS. UWECHIA (1999) LPELR – 5508 (CA) P. 17, PARAS. C – F and MOHAMMED VS. TIJANI (2021) LPELR – 54215 (CA) PP. 43 – 45, PARAS. C – E. The appellate Court would only evaluate evidence only where the trial Court arrives at a wrong decision by drawing wrong inferences from the evidence led by the parties or the exercise does not depend on the credibility of the witnesses which only the trial Court is placed in a better position to determine by observing the demeanor of the witnesses in course of their testimonies. PER UWA, J.C.A.

THE POSITION OF LAW ON THE FAILURE TO CROSS-EXAMINE A WITNESS ON MATERIAL FACTS

The law is that failure to cross examine a witness on material facts leaves the judge with no option but to accept the testimony in the evidence in chief wholly as true. Where evidence is unchallenged and uncontroverted, it is deemed admitted and the Court is bound to act on it, except where the evidence is clearly unreliable. See GAJI & ORS VS. PAYE (2003) LPELR – 1300 (SC) P. 20, PARAS. B – D. Where his lordship Edozie, JSC on the effect of failure to cross – examine a witness on material point held thus:
“It has been said that the effect of failure to cross examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. OFORLETE VS. STATE (2000) 12 NWLR (PT. 681) 415 at 436. In the case of AGONIFE VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325, (1988) 2 SC NJ 146, this Court held that it is not proper for a defendant not to cross – examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.”
See also BABALOLA & ORS VS. STATE (1989) LPELR – 695 (SC) PP. 21 – 22, PARAS. E – A, YUSUF & ANOR VS. STATE (2019) LPELR – 46945 (SC) PP. 16 – 17, PARAS. E – A, AKPAN VS. UDO (2021) LPELR – 52825 (CA) P. 8, PARAS. C – D and FIDELIS UGWU VS. THE STATE P. 17, PARAS. C – D. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): At the High Court of Adamawa State, presided over by Waziri, J. (as he then was) hereafter referred to as the trial Court, the 1st Respondent as plaintiff instituted the action that gave rise to this appeal against the 2nd Respondent as the 1st defendant and the Appellant as 2nd defendant via a writ of summons in which the following reliefs were sought:
(a) “A declaration that the plaintiff is entitled to all that landed property and everything thereon lying and situate at Sabon Pegi Yola Town, Yola South Local Government Area of Adamawa State which he purchased from Ahmadu Irimiya bounded by an unnamed street, the landed property of one Alh. Fadi Shata, a fenced property and two (2) plots of land.
(b) A perpetual injunction restraining the Defendants, their agents, servants, workmen, privies and howsoever called from entering into, tampering with or disturbing in any manner the peaceful and quiet enjoyment of the plaintiff’s landed property or in anyway however dealing with the landed property without the plaintiff’s consent.
(c) An Order of Court directing the defendants to remove anything placed, planted or erected by them, on the plaintiff’s landed property not originally there at the time of his purchase of the property within seven (7) days from the date of delivering of judgment in this suit or forfeit same to him immediately thereafter.
(d) An Order of Court directing the 1st Defendant to surrender the Original Copy of the sale agreement entered into between the plaintiff and Ahmadu Irimiya to the plaintiff within seven (7) days from the date of delivery of judgment in this suit.
(e) N3,000,000.00 (Three Million Naira) only as general damages.
(f) N225,000.00 (Two Hundred and Twenty Five Thousand Naira) only being the sum of money collected as rent by the 1st Defendant over the plaintiff’s property.
(g) Cost of filing and prosecuting this action including counsel’s professional fee of N500,000.00 (Five Hundred Thousand Naira) only.”

The Appellant counter claimed against the 1st Respondent, pages 185 – 186 of the printed records of Appeal and claimed as follows:
a. “A Declaration that the 2nd Defendant/Counter Claimant is entitled to all that developed piece of land located at Sabon Pegi, Yola Town, Yola South Local Government Area, Adamawa State measuring 85 feet by 100 feet by 65 feet by 55 feet by 40 feet by 45 feet which he purchased from Adamu Buba and Mallam Hassan H. Gaya.
b. An Order of Perpetual Injunction restraining the Plaintiff/Defendant to counter claim his heirs, agents, privies, assigns, executors or administrators of his estate and/or whosoever is claiming title from him from further interfering with the 2nd Defendant/Counter Claimant’s possession on the subject matter of this suit.
c. The sum of N1,000,000.00 only as punitive cost for instituting unjustifiable suit against the 2nd Defendant/Counter Claimant.
d. Cost of Litigation.”

At the trial, the 1st Respondent called three (3) witnesses including himself in proof of his claim, the 2nd Respondent called two (2) witnesses, himself inclusive, in his defence and counter claim. At the close of the trial on the 18/7/17, the trial Court in its judgment granted the 1st Respondent’s reliefs in the following terms:
(i) “That I declare that the plaintiff is entitled to all that landed property and everything thereon lying and situate at Sabon Pegi Yola Town, Yola South Local Government Area of Adamawa State which he purchased from Ahmadu Irimiya bounded by an unnamed street, the landed property of one Alh. Fadi Shata, a fenced property and two (2) Plots of land.
(ii) The defendants are hereby restrained by themselves, their agents, servant, workmen, privies and whosoever called from entering into, tempering with or disturbing in any manner the peaceful and quite (sic) enjoyment of the plaintiff’s landed property without the plaintiff (sic) consent.
(iii) The defendants are hereby to remove anything placed, planted or erected by them on the plaintiff’s landed property not originally there at the time of his purchase of the property within Seven (7) days from the date of delivery of judgment in this suit or forfeit same to him immediately thereafter in consonance with the famous latin maxim ‘quid quid plantur solo, solo cedit’ (He who owns the land owns what is on it).
(iv) The first defendant is hereby ordered to surrender the original copy of the sale agreement entered into between the plaintiff and Almadu Irimiya to the plaintiff within seven (7) days from the date of delivery of judgment in this suit.
(v) The sum of N2,000,000.00 (Two Million Naira) only is awarded against the defendants jointly and severally as general damages.
(vi) The sum of N225,000.00 (Two Hundred and Twenty Five Thousand Naira) only being the sum of money collected as rent by the 1st defendant over the plaintiff’s property.
(vii) The sum of N500,000.00 (Five Hundred Thousand Naira Only) being cost of filing and prosecuting this action including counsel’s professional fee. On the whole all the claims of the plaintiff succeed and judgment is accordingly entered in his favour against the defendants. While the counter – claim of the 2nd defendant fails as lacking in merit as no evidence is led in support and is therefore liable to be dismissed and I so dismiss it without cost.”

The judgment is at pages 216 – 292 of the printed records. The background facts are that the 1st Respondent made out that sometime in 2013, he acquired a developed landed property a few metres behind ABTI Quarters, Yola Town, through the 2nd Respondent. Consideration for same was said to be N2,100,000.00. The title was said to have been acquired from one Ahmadu Irimiya on whose instruction the money was paid into the Appellant’s account as Ahmadu Irimiya had no bank account but, had opted to have the money transferred to his brother’s account. Ahmadu Irimiya was paid the sum of N100,000.00 (One Hundred Thousand Naira) in cash. While the Appellant made out that the sum of N2,000,000.00 (Two Million Naira) was paid to the 2nd Respondent’s account on the instruction of the vendor. It was made out that the transaction was reduced into writing. The 1st Respondent alleged that he had instructed the 2nd Respondent to allow displaced persons to occupy the property while he was away in Sokoto until his return in 2015. The 1st Respondent alleged that the 2nd Respondent had let out part of the property which caused him to report same to the police where the 2nd Respondent made an undertaking to pay him the sum of N4,000,000.00 (Four Million Naira) the then value of the property within 30 days, failure of which culminated in the action that resulted in the present appeal.

In defence, the 2nd Respondent made out that he personally bought the property in question from one Ahmadu Irimiya for the sum of N2,300,000.00 (Two Million, Three Hundred Thousand Naira) and that after buying the property he approached the 1st Respondent, an unlicensed money lender for a loan, that the two Million Naira paid into his account by the 1st Respondent had nothing to do with the property he allegedly purchased earlier and that it was the same N2,000,000.00 that attracted another N2,000,000.00 interest in respect of which he made an undertaking at the police station to pay by 19/11/15. The 2nd Respondent relied on a Sales Agreement between him and Irimiya Ahmadu. It was made out that there was another agreement in which the 1st Respondent was said to have alienated his interest to the Appellant.

The Appellant as 2nd Defendant made out that he acquired the property from one Adamu Buba and the 2nd Respondent on 3rd September, 2014 and 20th August, 2015 respectively. The Appellant claimed to have been in possession of both properties which he merged into one developed property and had been in quiet possession for one and half years before the 1st Respondent disturbed his peace.

The Appellant (as 2nd defendant), who was unhappy with the judgment of the trial Court appealed to this Court. The following issues were formulated for the determination of the appeal thus:
(i) “WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN GRAVE ERROR OF LAW AND IN BREACH OF THE APPELLANT’S RIGHT TO FAIR HEARING WHEN HE FOUND AND DISCOUNTENANCED WITH THE APPELLANT’S WITNESSESS’ STATEMENTS ON OATH FOR BEING IN CONTRAVENTION OF SECTION 117 (4) OF THE EVIDENCE ACT, 2011 AND ORDER 1 RULE 2 (2) AND (3) OF THE ADAMAWA STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2013” (Grounds 2, 3 and 4 of the Notice of Appeal).
(ii) WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE PRESENTED AT TRIAL, PARTICULARLY, THE EXHIBITS TENDERED BY THE APPELLANT BEFORE COMING TO THE CONCLUSION THAT THE APPELLANT IS LIABLE TO THE CLAIMS OF THE 1ST RESPONDENT. (Grounds 1, 5, 6, 8, 9 and 10 of the Notice of Appeal.)
(iii) WHETHER HAVING DUE REGARDS TO THE EVIDENCE ON RECORD, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE FOUND AND HELD THAT THE TRANSACTION BETWEEN THE 1ST AND 2ND RESPONDENTS WAS FOR PURCHASE OF PROPERTY AS AGAINST A LOAN TRANSACTION.” (Ground 7 of the Notice of Appeal).

The 1st Respondent in his amended brief of argument adopted the three issues formulated by the Appellant for the determination of the appeal.

In arguing the appeal, the learned counsel to the Appellant Etim Akpan Esq. adopted and relied on his brief of argument filed on 3/4/19 but deemed properly filed and served on 18/9/19, as his argument in this appeal. In arguing his issue one, it was submitted that the trial Court was in great error when it jettisoned the written statements on oath of the Appellant’s witnesses in that same run foul of Section 117 (4) of the Evidence Act, 2011 and Order 1 Rules 2 (2) and (3) of the Adamawa State High Court (Civil Procedure) Rules, 2013. It was submitted that the trial Court was wrong to have held that the witnesses’ statements on oath were not duly signed even though same were regularized by the same Court, pages 120 – 124 of the printed records of appeal. It was argued that the statements bore the illiterate jurats signed by the interpreter and that the statements were adopted in open Court as their evidence which corrected any perceived irregularity. See, IHUOMA E. UDEAGHA VS. MATHEW OMEGARA (2010) 11 NWLR (PT. 1204) P. 168 at 195, PARAS. E – H. Further, that the issue of non – signing and/or the witnesses’ illiteracy were elicited under cross examination and not part of the pleadings, therefore worthless. See EDWARD OKWEJIMINOR VS. G. GBAKEJI (2008) 1 SCNJ P. 495 PARAS. 15 – 20, DINA VS. NEW NIGERIA NEWSPAPERS LTD (1986) 2 NWLR (PT. 22) P. 353 at 364, PARAS. A – B and EVA ANIKE AKOMOLAFE VS. GUARDIAN PRESS LIMITED (PRINTERS) (2010) 1 S.C.N.J. P. 283 at 294, PARAS. 5. It was made out that there was lack of fair hearing. See, EMMANUEL IKEAJA MPAMA VS. FIRST BANK OF NIGERIA PLC (2013) 1 S.C.N.J. P. 68 at 86. It was argued that there was no basis for the rejection of the Appellant’s evidence before the trial Court. See CHIEF S.S. OBARO VS. ALHAJI SALE HASSAN (2013) 2 S.C.N.J. P. 788 at 816, PARAS. 20 – 30 and BERNARD OJEIFOR LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 3 S.C.N.J. P. 295 at 306, PARAS. 20 – 25. It was also argued that the trial Court raised the issue of fraud suo motu without giving the parties especially the appellant the opportunity to address him on same, moreso that the issue is criminal in nature and ought to be proved beyond reasonable doubt as required by Section 135 (1) of the Evidence Act, 2011, page 281 of the records. See TOTAL ENGINEERING SERVICES TEAM INC. VS. CHEVRON NIGERIA LIMITED (2011) 8 NWLR (PT. 1250) P. 464 at 498, PARAS. D – H. Further, that the trial Court’s application of the case of GUNDIRI VS. NYAKO (2013) ALL FWLR (PT. 698) P. 817 at 828 was in error. It was argued that the rejection of the appellant’s witnesses’ statements on oath was unfair and unjust. It was concluded on this issue that the statements were signed by the deponents and their interpreters. We were urged to set aside the judgment of the trial Court on this issue alone.

On the second issue, it was submitted that reviewing evidence without evaluation as the trial Court did is not enough. See OGUNLEYE VS. AINA (2011) 3 NWLR (PT. 1235) P. 479 at P. 583, PARAS D – E. The evidence of the witnesses was reviewed. It was alleged that the trial Court failed to evaluate the evidence adduced by the parties when the Court expunged the Appellant’s oral and documentary evidence without any justifiable cause. It was argued that the 1st Respondent only filed a reply in response to the Appellant defence and counter claim, pages 111 – 113 of the printed records, reference was also made to Order 38, Rules 1 (2) of the Adamawa State High Court (Civil Procedure) Rules, 2013 to the effect that the reply ought to have been accompanied by a further deposition on oath otherwise it would remain a mere pleading with no evidence in support. See SAMSON BABATUNDE OLAREWAJU VS. AFRIBANK NIGERIA PLC (2001) 7 N.S.C.Q.R. P. 22 at P. 31, PARAS. C – D.

It was submitted that the Appellant’s pleadings were admitted by the 1st Respondent, therefore the 1st Respondent was not entitled to the grant of the reliefs sought, for instance, that Exhibit “B”, the alleged undertaking made at the police station, a public document which was not certified, therefore inadmissible even though admitted without any objection, we were urged to expunge same. See SUNDAY OGUNSINA & ORS VS. SUNMONU MATANMI & ORS (2001) 6 N.S.C.Q.R. (PT. 1) at P. 10, PARAS. B – D. It was argued that oral evidence cannot be used to alter documentary evidence. See Section 128 (1) of the Evidence Act, 2011, FORTUNE INTERNATIONAL BANK PLC VS. PEGASUS TRADING OFFICE (2005) 1 F.W.L.R. (PT. 248) P. 806 at P. 818, PARAS. E – G and NIGERGATE LIMITED VS. NIGER STATE GOVERNMENT (2005) 1 NWLR (PT. 907) P. 342 at P. 367, PARAS. A – D.

It was argued that the lower Court erred when it ignored the 2nd Respondent’s evidence regarding Exhibit “B”, that same was an undertaking to repay a loan with the accrued interest which was said to be more probable than the 1st Respondent’s allegation that the 2nd Respondent begged to pay N4,000,000.00 for a property he claimed to have bought, through the same 2nd Respondent for N2,100,000.00. It was submitted that the issue of fraud was raised for the first time in the lower Court’s judgment at page 281 of the records, that the Appellant’s alleged title documents, Exhibits “F” and “G” were prepared to cover up the fraudulent deals of the parties to deprive the 1st Respondent of his valid title to the property in dispute, which is perverse as same did not arise from the parties pleadings and evidence on record which makes the decision of the lower Court a nullity. See, TOTAL ENGINEERING SERVICE TEAM INC. VS. CHEVRON NIGERIAN LIMITED (2011) 8 NWLR (PT. 1250) P. 464 at P. 488, PARAS. B – F and PROVISIONAL LIQUIDATOR, TAPP INDUSTRIES VS. TAP IND. (1995) 5 NWLR (PT. 393) P. 9 at P. 41, PARAS. B – F. We were urged to re-evaluate the evidence before the Court and set aside the decision of the lower Court.

On issue three, it was submitted that the lower Court’s holding that the transaction between the 1st and 2nd Respondents was for the purchase of property and not for a loan is misconceived. It was argued that Exhibits “A” and “B” are irreconcilable when compared with facts put forward by the 1st Respondent. Also, that from Exhibit “G”, at page 59 of the printed records, every constituent of the purported conveyancing was done through and by the 2nd Respondent and that there were contradictions in the 1st Respondent’s case at the trial Court. On the effect of contradictions, reference was made to LT. F.O. ODUNLAMI (NN/2121) VS. THE NIGERIAN NAVY (2013) 6 S.C.N.J. P. 112 at P. 135, PARAS. 25 – 35. Further, that Exhibits “A” and “B” are in agreement with the case of the 2nd Respondent at the trial to the effect that the money paid vide Exhibit “A” was a loan which he took from the 1st Respondent to repay with interest as seen in Exhibit “B”. It was argued that there is nothing in the records of appeal to show that the 2nd Respondent acted as an agent of the 1st Respondent for the purpose of acquiring the Appellant’s property from Irimiya Ahmadu. It was argued that the alleged payment of N200,000.00 to one Abdulkadir was neither pleaded nor proved but, alleged during cross examination of the DW2 which the witness was said to have denied. It was concluded on this issue that the 1st Respondent failed to call the Ward Head to testify in proof of the payment.

In response, the learned counsel to the 1st Respondent M.P. Atsev Esq. filed his brief of argument on 21/4/20 with the leave of Court same was amended and filed on 12/7/21 but deemed properly filed and served on 26/10/21. In the said brief of argument, the learned counsel to the 1st Respondent adopted the three (3) issues as formulated by the Appellant and his brief of argument as his submissions in the appeal. In arguing his issue one, it was submitted that from the evidence of the DW2 (1) and DW2 (2) at pages 120 – 124 of the printed records both statements have jurats which means that the witnesses are illiterates, M.U. Adamu Esq. was to have been the interpreter of their statements on oath admitted by the DW2 (1) at page 205 of the printed records of appeal also the evidence of the DW2 at page 206 of the records to the effect that their statements on oath were made in Hausa Language and same was translated to English Language. It was submitted that the trial Court held that the statements on oath did not comply with Section 117(4) of the Evidence Act and that the Hausa Language version ought to have been tendered in line with the decision in GUNDIRI VS. NYAKO and 7 ORS (2013) ALL FWLR (PT. 698) PAGE 816 at 856, PARA. D. page 288 of the printed records. Further, that the trial Court had also rightly held that the statements on oath of DW2 (1) and DW2 (2) was not in compliance with the law both witnesses having signed after their jurats, pages 121 and 124 of the printed records. It was concluded on this issue that the Appellant was given an opportunity to be heard but, presented evidence that was not in compliance with the law. Also, that the decision in GUNDIRI VS. NYAKO (supra) is an issue of law and need not be pleaded and that facts are pleaded not law.

Issues two and three were argued together. It was submitted that the responsibility of evaluating and ascribing probative value to the testimonies of witnesses is a preserve of the trial Court which was dutifully done in this case. See GARAN VS. OLOMU (2013) ALL FWLR (PT. 711) PAGE 514 at 1533, PARAS. B – C. It was submitted that how a trial Court arrives at its decision is a matter of style. See ABEJE VS. APEKE (2014) ALL FWLR (PT. 715) PAGE 376 at 391 -392, PARAS. F – A. Further, that evaluation of evidence was explained in ABOLAJI VS. OYENIYI (2014) ALL FWLR (PT. 746) PAGE 589 at 592. It was argued that the lower Court reviewed the evidence of all the witnesses called by both parties including the evidence at the locus in quo, pages 217 – 241 of the printed records of appeal. Further, that it was in evaluation that the evidence of the DW2 (1) and DW2 (2) was discountenanced. Also, that the ways title could be proved was considered. See OLATEJU VS. SANNI (2011) ALL FWLR (PT. 590) PAGE 1257 at 1287 – 1288, PARAS. G – B. The evidence of the PW1 was reviewed in respect of how the 1st Respondent paid Ahmadu Irimiya for the property through the Appellant’s First Bank Account on the instruction of the vendor Ahmadu Irimiya and how he was paid the sum of N2,000,000.00 while N100,000.00 was paid cash and how the PW1 and the Appellant were paid their commissions of N50,000.00 and N25,000.00. It was submitted that these pieces of evidence was not contradicted and the PW1 was not cross examined on the evidence that he introduced the Appellant to the transaction, therefore that the unchallenged evidence is deemed admitted. See FATILEWA VS. STATE (2007) ALL FWLR (PT. 437) PG 695 at 721 – 722, PARAS. F – B, MUNIYAS (NIG) LTD VS. ASHAFA (2012) ALL FWLR (PT. 642) PG. 1772 at 1786, PARAS. C – D. The evidence of the PW2 was said not to have been shaken as to the role he played as a witness to the purchase of the property by the 1st Respondent and the fact that the consent of the 1st Respondent was sought before the property was let to new tenants and how the Appellant wrote the undertaking at the police station to pay the 1st Respondent the sum of N4,000,000.00 (Four Million Naira) between 19/10/15 and 19/11/15 to enable him acquire title to the land in dispute failing which he would surrender the 1st Respondent’s property documents in respect of the house in dispute, pages 191 – 192 of the printed records of appeal. The evidence of the PW3 (the 1st Respondent) as to how he bought and paid for the property in dispute was said not to have been contradicted and that the evidence of the DW1 (Ahmadu Musa) was hearsay while that of the DW2 (the Appellant) was full of contradictions, pages 38 – 42. It was submitted that the evidence on an alleged money lending transaction was said to be hearsay which is inadmissible in law. Further, that the statements on oath of the DW2 (1) and the DW2 (2) were signed after the illiterate jurat which implies that the statements were not signed. Also, the statements were made in Hausa Language and only the English version was tendered in evidence contrary to the position of the law that both be tendered in evidence. See GUNDIRI VS. NYAKO & 7 ORS (2013) (supra). The learned counsel to the 1st Respondent highlighted the contradictions and discrepancies in the evidence of the Appellant as DW2 and argued that the evidence put forward by the 1st Respondent was not contradicted, reliance was placed on the cases of AKIBOYE VS. ADEKO (2012) ALL FWLR (PT. 636) PG. 522 at 528, MUNIYAS NIG. LTD VS ASHAFA (2012) ALL FWLR (PT. 642) PAGE 1772 at 1786, PARAS. C – D. and NWAOGU VS. ATUMA (2013) ALL FWLR (PT. 693) PAGE 1893 at 1897, PARAS C – D.

On the award of general damages, it was submitted that it was not pleaded and proved; reliance was placed on UNION BANK OF NIGERIA PLC VS. AJABULE (2012) ALL FWLR (PT. 611) PAGE 1413 at 1431, PARAS. B – C, GARI VS. SEIRAFINA NIG. LTD (2008) ALL FWLR (PT. 399) PG. 434 at 454, PARAS. C – D and EMIRATES AIRLINES VS. UZOAKU KENECHUKWU NGONADI (2004) ALL FWLR (PT. 741) PAGE 1603 at 1656 – 1657, PARAS. G – F. It was concluded that the lower Court was right to have ordered the Appellant to surrender the agreement between the 1st Respondent and Irimiya Ahmadu. Also, that the award of N500,000.00 granted to the 1st Respondent was justified from Exhibit “C” it was clear that the 1st Respondent spent money on filing fees and his solicitor’s fees.

In his reply brief filed on 28/10/21, the learned counsel to the Appellant re-argued points already argued in the Appellant’s brief of argument on whether the statements on oath of the DW2 (1) and DW2 (2) were properly endorsed.

In resolution of issue one, in the evidence of the DW2 (1), Abudulkadiri Mohammed under cross examination, at page 205 of the printed records of appeal, admitted that he is an illiterate and gave his statement on oath in Hausa Language and same was translated into English Language, which is the language of the Court. Similarly, the DW2 (2) Yakubu Yusuf (Appellant), under cross examination at page 206 of the printed records stated the same. The statements in Hausa Language if any were not annexed to the English version of the statement on oath before the lower Court. Section 117(4) of the Evidence Act, 2011 provides thus:
(4) “An Affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.”
While Order 1 Rules 2 (2) and (3) of the Adamawa State High Court (Civil Procedure) Rules 2013 provides as follows:
(2) “Every writ of summons shall be accompanied by;
(a) Statement of claim;
(b) List of witnesses to be called at the trial;
(c) Written statement on oath of the witnesses; and
(d) Copies of every document to be relied on at the trial.
(3) Where a plaintiff fails to comply with Rule 2 (2), his originating process shall not be accepted for filing by the Registry.”
The point is that the DW2 (1) and the DW2 (2) signed their statements on oath (the English version) after the illiterate jurat which clearly means that the statements were not signed but, the jurat. At page 121 of the printed records, the DW2 (1) signed after the name of the interpreter and not after the statement on oath. Also, at page 124 of the printed records of appeal, the DW2 (2) (the Appellant) signed after the jurat and not his statements on oath. Further, both witnesses admitted making their depositions in Hausa Language which were interpreted into English Language but the Hausa Language versions were not annexed to the statements in English Language before the lower Court. The decision in GUNDIRI VS. NYAKO (supra) clearly held that where a witness is an illiterate and has made a statement in another language other than English Language, in the present case Hausa Language as in the above case, the statement in Hausa Language and the translated English Language ought to be tendered and the interpreter must also sign the jurat in respect of the statements. The Appellant has not made out that the Hausa version of his witnesses’ statements were annexed to the translated English version and tendered and the lower Court failed to utilize the contents. The Hausa version was not annexed. The essence is to protect the illiterate to ensure that his/her statement as given in a different language is what has been translated and recorded in English Language to test the accuracy, it is for the same reason that the statements on oath are required to be signed or a mark made after the statement. The lower Court was therefore right to have held that both versions of the statements on oath ought to have been tendered in evidence and was right to have discountenanced both statements on oath, pages 288 – 290 of the printed records of appeal. See AKINTOLA VS. BALOGUN & ORS (1999) LPELR – 5485 (CA) PP. 34 – 35, PARA. D and GUNDIRI & ANOR VS. NYAKO & 7 ORS (2013) (supra) at PAGE 856, PARA. D. The lower Court was right to have discountenanced the statements on oath of the DW2 (1) and DW2 (2).

The learned counsel to the Appellant had alleged lack of fair hearing. The test of fairness/fair hearing in proceedings was given in MOHAMMED VS. KANO N.A. (1968) LPELR – 25487 (SC) P. 3, PARAS. B – C by Ademola, JSC thus:
“The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”
See also my earlier decision in ADINGARWA & ORS VS. ASSANDARIYU (2021) LPELR – 54645 (CA) P. 16, PARAS. B – F, DARMA VS. ECOBANK (2017) LPELR – 41663 (SC) PP. 23 – 24, PARAS. E – C and GEORGE & ORS VS. DOMINION FLOUR MILLS LTD (1963) LPELR – 15458 (SC) PP. 9 – 10, PARAS. F – A. The test is that both parties must be given an equal opportunity of being heard. There is nothing on record to show that the Appellant was denied an opportunity to present his case and be heard, he was heard. It is not enough to just wave the flag of “lack of fair hearing” and expect it to fly, it would not. The allegation of lack of fair hearing fails, issue one is resolved against the Appellant.

I will resolve issues two and three jointly as both questions the evaluation of evidence done by the lower Court. Evaluation of evidence is the exclusive preserve of the trial Court. In LAFIA LOCAL GOVERNMENT VS. EXECUTIVE GOVERNOR NASARAWA STATE & ORS (2012) LPELR – 20602 (SC) P. 23, PARAS. E – F, His lordship, Rhodes Vivour, JSC explained what evaluation of evidence entails thus:
“Evaluation of evidence entails the trial Judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side appears to outweigh the other. See MOGAJI VS. ODOFIN (1978) 4SC P.9.”
See also ECOBANK PLC VS. MOHAMMED (2014) LPELR – 23990 (CA) PP.24 – 25, PARAS. B – C, CHUKWU CONSTRUCTION CO. LTD VS. UWECHIA (1999) LPELR – 5508 (CA) P. 17, PARAS. C – F and MOHAMMED VS. TIJANI (2021) LPELR – 54215 (CA) PP. 43 – 45, PARAS. C – E. The appellate Court would only evaluate evidence only where the trial Court arrives at a wrong decision by drawing wrong inferences from the evidence led by the parties or the exercise does not depend on the credibility of the witnesses which only the trial Court is placed in a better position to determine by observing the demeanor of the witnesses in course of their testimonies.

No doubt the lower Court reviewed the evidence adduced by the parties. At pages 217 – 241, the lower Court reviewed in detail the evidence from the parties and the Exhibits tendered and admitted in evidence, also the evidence at the visit to locus in quo. The lower Court thereafter evaluated the evidence and assessed the evidential value of the evidence of the DW2 (1) and DW2(2) after which the lower Court discountenanced same rightly placing reliance on the case of GUNDIRI VS. NYAKO (supra). The lower Court also considered ways in which title to land could be proved customarily by purchase. The 1st Respondent claimed the property by purchase, so did the Appellant who claimed to have bought the property and made out that his transaction with the 1st Respondent was concerning a loan not through whom the 1st Respondent paid for the house. The PW1 testified that he introduced the Appellant to the property in view of getting a buyer. The Appellant approached the 1st Respondent who agreed to buy the property off Ahmadu Irimiya. The PW1 gave account of how the property was paid for, N2,000,000.00 (Two Million Naira) through the Appellant’s account while the sum of N100,000.00 (One Hundred Thousand Naira) was paid cash on the instruction of the vender Ahmadu Irimiya, pages 9 – 11 of the printed records of appeal. The PW1 also gave account of how his commissions and that of the Appellant were paid of N50,000.00 (Fifty Thousand Naira) and N20,000.00 (Twenty Thousand Naira) in respect of the transaction which was reduced into writing. The Appellant who made out that he introduced the 2nd Respondent (1st defendant) to the transaction and into whose account the sum of N2,000,000.00 (Two Million Naira was paid) on the instruction of Irimiya Ahmadu did not contradict or controvert the evidence adduced by the PW1 who was not cross examined on these pieces of evidence shows that it was not discredited.

Similarly, the PW2 gave account of how the PW1 requested him to seek the permission of the 1st Respondent before letting out the property in question. The P2 also gave account of how the matter got to the police station where the Appellant made an undertaking to pay the 1st Respondent the sum of N4,000,000.00 (Four Million Naira) between 19/10/15 and 19/11/15, to acquire title to the house in dispute or for the 1st Respondent’s document to be surrendered to him in respect of the disputed property, pages 191 – 192. The evidence of the PW2 was not controverted or challenged under cross examination. The 1st Respondent (plaintiff at the trial) also gave account of how he acquired title to the landed property in dispute and how he paid for it, pages 18 – 22 of the printed records of appeal which was neither shaken, challenged nor controverted under cross examination.

The Appellant himself testified as the DW2 to the effect that he bought the house subject matter of this suit from Irimiya Ahmadu on 24/10/13 for the consideration of N2,300,000.00 (Two Million, Three Hundred Thousand Naira), he agreed that the sum of N2,000,000.00 (Two Million Naira) was transferred to his First Bank Account by the 1st Respondent but denied that it was the money paid for the property subject matter of this appeal. The DW2 denied that he was not an agent and that he was not given a power of Attorney and that no sale agreement was written in the name of the 1st Respondent as rightly highlighted by the learned counsel to the 1st Respondent. The DW2 made out that the relationship he had with the 1st Respondent was a loan of N2,000,000.00 (Two Million Naira) from the 1st Respondent. There was no collateral mentioned by the DW2 to back up the supposed loan. The appellant made out that the 1st Respondent did not know the property in dispute but, he was able to describe the property and identified same at the visit to locus in quo, the identity of the land was therefore not in issue.

I am of the view that the trial Court properly evaluated the evidence adduced by the Appellant and as I held under the resolution of issue one, right to have held that the depositions of the DW2(1) and DW2(2) that were made in Hausa Language and translated into English Language ought to have been tendered together rightly relying on the decision of the Apex Court in GUNDIRI VS NYAKO (supra), page 288 of the printed records of appeal. The appellant failed to prove the alleged loan from the 1st Respondent and also failed to prove that he bought the property from the 2nd Respondent.

I hold that the lower Court properly evaluated the evidence adduced by the parties before arriving at its decision. The Appellant as second defendant at the trial Court failed to prove his alleged loan and that he owned the property in dispute. The trial Court’s evaluation of the evidence before it is unassailable and I affirm same.

The appeal is lacking in merit, I dismiss it in its entirety.
The judgment of the lower Court delivered on 18/7/17, in suit No. ADSY/91/16 is affirmed except the consequential orders as to costs of N500,000.00 (Five Hundred Thousand Naira) in favour of the 1st Respondent against the Appellant and the 2nd Respondent jointly and severally as general damages in the sister appeal No. CA/YL/123/18 delivered on 21/1/22, by my learned brother, B.G. Sanga, JCA. I also abide by the award of N500,000.00 (Five Hundred Thousand Naira) against the Appellant and the 2nd Respondent jointly and severally in favour of the 1st Respondent being costs of filing and prosecuting this action, including learned counsel’s professional fees in the sister appeal above.
Parties to bear their respective costs.

BITRUS GYRAZAMA SANGA, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA, JCA. My learned brother has exhaustively dealt with the issues contained in the lead judgment and I agree that the appeal lacks merit and should be dismissed. It is hereby dismissed by me.

Appearances:

Etim Akpan, Esq. For Appellant(s)

M.P. Atsev, Esq. – for 1st Respondent
M.J. Ifegwu, Esq., with him, O.L. Inofe, Esq. – for 2nd Respondent. For Respondent(s)