AMINU BALA SOKOTO v. MAI AKWAI M. DANDAUDU
(2018)LCN/12097(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/S/60/2012
RATIO
INTERPRETATION: PLEDGE
“The Appellant having failed to prove the requirements of the existence of a pledge, to wit;
(a) Offer of the property as pledge;
(b) Acceptance of the said property as pledge;
(c) Consensus ad idem on the transaction; and
(d) The consideration for the pledge, learned counsel submitted that the argument that the transaction was a pledge is a farce, more so that a party pleading a pledge must also prove his title to the land, then the pledge itself; the party to the pledge and the circumstances, time and consideration for the pledge none of which the Appellant proved. Reliance was placed on the cases of KODILINYE V MBANEFO ODU (1935) 2 WACA 336, ATUANYUA V ONYEJEKWE (1975) 3 SC 115 and NDORO & ORS V PIANWII & ORS (2002) LPELR 5482 (CA).” PER AMINA AUDI WAMBAI, J.C.A.
COURT AND PROCEDURE: WHERE A JUDGMENT IS PERVERSE
“What does it mean to say that a judgment or decision is perverse
A judgment of a Court is said to be perverse:
(i) when it is speculative and runs counter to the evidence;
(ii) where it is shown that the Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; (iii) when the findings are must unreasonable; or
(iv) when it has occasioned a miscarriage of justice. See ONU V IDU (2006) 12 NWLR (Pt 995), MOMOH V UMORU (2011) 15 NWLR (Pt 1270) 217, and miscarriage of justice occurs where there are substantial errors in adjudication which effect is that the party relying on such errors may likely have a judgment in his favour. See AMADI V NNPC (2000) 6 SC (Prt 1) 66.” PER AMINA AUDI WAMBAI, J.C.A.
COURT AND PROCEDURE: A REPLY BRIEF
“A reply brief cannot be used as a tool for providing the Appellant a second bite at the cherry or for a rejoinder. Its function is only to enable the Appellant answer to fresh or new issues raised in the Respondent’s brief of Argument which were not taken in the Appellant’s brief. NITEL PLC V OCHOLI (2001) FWLR (Pt 174) 254, and ABDULLAHI V MILITARY ADMINISTRATOR & ORS (Supra). The Appellant cannot by a reply brief be allowed to eat to gluttony while the Respondent is famished and starved of any opportunity of a further reply. For this reason, I shall discountenance all argument in the reply brief save as it relates to the propriety of the argument on non-suiting the action which I shall consider at the appropriate stage.” PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
AMINU BALA SOKOTO Appellant(s)
AND
MAI AKWAI M. DANDAUDU Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment):
The appeal before us arose from the judgment of Sokoto State High Court delivered on the 16th February, 2009 bordering on a contractual relationship between the parties.
The original parties were Alhaji Bala Sokoto and Atto Mai Sadaka both of them are now deceased but substituted with the Appellant and the first Respondent as plaintiff and first defendant respectively, at the lower Court. In 1991 Alhaji Bala Sokoto in dire need of money to travel to Lagos to enable him follow up on his claims with the Nigerian Railway Corporation, through his agent, Jibril Suleiman (PW2), approached Atto Mai Sadaka for a loan of N40, 000. The loan was granted on the conditions that it will be repaid in 3 months with interest and Alh. Bala Sokoto would deposit title document of his landed property as collateral which he could redeem after payment of the loan and the interest. They executed an agreement to that effect and a copy of certificate of occupancy, No. S.51 covering a plot of land lying and situate between the Union Bank of Nigeria and United Bank of Africa, Sani Abacha Road Sokoto, was deposited.
On the part of the Respondent, the transaction was an outright sale of the property to the 1st Respondent on condition that the Appellant would refund the money with interest within 3 months or the sale becomes final, and upon the Appellant’s failure to repay the loan as agreed, the sale became absolute.
Meanwhile, Alhaji Bala later obtained an approval for extension of the said plot and was issued with certificate of occupancy S. 51 extension.
The loan was not paid within 3 months as agreed and in the year 2000, Atto Mai Sadaka sold the land to Mai Akwai M. DanDaudu, the 2nd Respondent for N2m, at whose instance, in a bit to regularize the transaction, Alhaji Bala was requested to sign a ‘change of ownership’ document which he refused to sign but rather approached the lower Court as plaintiff claiming declaratory reliefs that the first defendant has no title in the said property to pass to the 2nd defendant; that the plaintiff remains the rightful and legal owner of the property; that the agreement between himself and the 1st Respondent is ineffectual, null and void. He also sought a perpetual injunction restraining the defendant/Respondents from interfering with the said property.
As defendants, the 1st & 2nd Respondents denied the claim and counter – claimed against the plaintiff/Appellant for a declaration that the transaction between the plaintiff and the 1st defendant is valid and for an order mandating the plaintiff to release the certificate of occupancy No.S.51 to the defendants.
The Appellant testified as PW3, called two other witnesses and tendered Exhibits 1, 1A, 2, 2A, 3 & 3A. On their part, the Respondents called two witnesses and tendered two Exhibits, D1 & D2. The learned trial judge after reviewing the evidence and considering the written addresses of both counsel, made specific findings: – that the plaintiff did not pay back the loan within 3 months; that the plaintiff by his standing knew and understood the importance of the contents of Exhibits D1 & D1A (sic) (1 & 1A) yet took no steps even outside the agreement period to redeem his land. Premised on these findings, the Court concluded on the plaintiff/Appellant’s claim, thus:
“… the contents of the agreement signed, Exhibits D1 & D1A (sic), 1 & A, is self-explanatory and unambiguous and therefore should be given its ordinary meaning. I agree with learned defendant’s counsel that the failure of the plaintiff to do as he was expected, the sale became absolute and I so hold, and without any doubt title has passed to the 1st defendant in the circumstance…Having regard to the pleadings, the plaintiff I must say, has failed to establish his case totally to be entitled to any relief and such failure can only result in dismissing of this case.
Accordingly, plaintiff’s case is hereby dismissed for lacking in merit.”
On the defendants/Respondent’s counter – claim, the learned trial judge found as follows:
“…taking both certificate of occupancy S.51 (extension) and S.51 into consideration, it appears clear that there are two plots in one place and to resolve the problem parties would have to get to the land Registry.”
He concluded that the defendants failed to prove their counter – claim and accordingly, also, dismissed the counter – claim.
Upset by the decision, the Appellant commenced this appeal by a Notice of appeal filed on 27th February, 2009 which was amended and further amended pursuant to an order of this Court made on 10/4/18. The further amended Notice of appeal filed on 14/2/18 wherein the Appellant attacked the judgment of the lower Court on 3 grounds, was deemed properly filed & served on 10/04/18. In the Appellant’s amended brief of argument settled by A. Y. Abubakar Esq., and filed on 14/05/2018 but deemed on 15/05/2018 two issues were distilled for determination namely:
(1) WHETHER THE TRIAL JUDGE WAS RIGHT IN DISMISSING THE ACTION OF THE PLAINTIFF AS WELL AS THE COUNTER CLAIM OF THE DEFENDANTS. (GROUND 2).
(2) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HIS JUDGMENT WHEN HE STATED THAT: – “I agree with the learned defendants counsel that the failure to do as he was expected, the sale became absolute… title has passed to the 1st defendant without considering the principle of law that once a pledge, always a pledge.”
Learned Ibrahim Abdullahi, Esq., who settled the Respondent’s consequential amended brief of argument filed on 25/5/2018, raised a lengthy lone issue for determination to wit:
Whether having regards to the facts and circumstances of the case as presented before the Court below, the Court below was correct in law when it dismissed both the substantive action instituted by Alh Bala Sokoto (now deceased and substituted by the Appellant herein) as well as the counter claims of Atto Mai Sadaka (deceased but now substituted with the 1st Respondent) and the 2nd Respondent? (This is decoded from grounds 1, 2, 3 & 3 of the further amended grounds (appeal).
A study of the issues raised by both parties’ shows that the Appellant’s 2nd issue can conveniently be subsumed into his 1st issue which in substance is the same with the Respondent’s lone issue. I shall adopt with modification for succinctness, the Appellant’s 1st issue in the determination of this appeal as reframed thus: –
WHETHER BY THE EVIDENCE BEFORE THE LOWER COURT THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING BOTH THE APPELLANT’S CLAIM AND RESPONDENT’S COUNTER – CLAIM.
Arguing the appeal, the learned Appellant’s counsel submitted on his issue No. 2, that the transaction between the original plaintiff, Alh. Bala Sokoto and the original first defendant, Atto Mai Sadaka, is not one of sale as contended by the Respondent but purely one of pledge of landed property whereby the plaintiff/Appellant pledged the property in question as security for the loan of N40, 000 obtained from Atto Mai Sadaka to be redeemed after payment. He referred to paragraphs 12 – 16 of the statement of claim and the evidence of PW2 to buttress the said contention. Vehemently, the learned counsel faulted the finding of the learned trial judge that the sale became absolute by the Appellant’s failure to pay the loan as expected and title passed to the 1st Respondent, contending that such a finding is oblivious of the principle of law that a transaction once a pledge is always a pledge as held in the case of OKOYE V OBIASO (2010) 22 WRN 45.
The transaction being a pledge he argued, the 1st defendant/Respondent as pledgee ought to have accepted the money sent to him by the pledgor (Alh. Bala Sokoto) outside the stipulated time since a pledge can be redeemed any time no matter the length of time. For this, he called in aid the decision in the case of the original ACHILIHU V ANYATONWU (2013) 35 WRN 65 @ 70.
It was further submitted that assuming but not conceding that the transaction is not a pledge, interest being a condition of refunding the loan as pleaded in paragraph 5 of the Amended joint statement of defence and as testified to by PW2 & PW3, the transaction is by virtue of the Money Lenders Law, 1938, Laws of Northern Nigeria 1963, a money lending business which ought not be given judicial blessing the 1st Respondent not being a registered money lender.
On his issue No.1, it was submitted that the whole judgment of the lower Court is not a judgment in conformity with the types and forms of judgment recognized by law in that dismissing both the plaintiff’s claim and the defendants’ counter – claim means there was no judgment in the matter. Judgment in civil cases he argued, is either for the plaintiff or the defendant or for a non-suit as held in the case of EGBUCHU V CONTINENTAL MERCHANT BANK PLC (2016) 8 NWLR (Prt. 1513) 192 @ 195 and that a non-suit ought to have been ordered rather than dismissing the claims of both parties.
On the Appellant’s case, learned counsel submitted that the Appellant proved his case but assuming though not conceding that he did not do so, the conditions for ordering a non-suit exist in that: –
(a) the Appellant did not fail in toto to prove his case;
(b) the respondents are not entitled to the Court’s judgment, the trial judge having dismissed their counter – claim; and
(c) no wrong or injustice would be done to the Respondents by an order of non-suit since the Respondents would also have a second chance on their counter – claim.
The learned trial judge learned counsel submitted, was thus in error to have referred parties to the land Registry rather than non-suiting the action which would have, in the interest of justice, been the best judgment in the circumstance as decided in the case ofIKONNE V EZIEME (2011) NWLR (Prt. 1259) 536.
Responding and submitting per contra that the learned trial judge was right in dismissing both the Appellant’s claim and the Respondent’s counter-claim, it was submitted for the Respondents that where as in the instant case the plaintiff who has the onus of proving his case by credible evidence fails to discharge the legal and evidential burden, his claim is bound to be dismissed as held in ARUM V NWOBODO (2004) 9 NWLR (Pt 878) 411, WEIDE CO., (NIG) LTD V WIEDE AND HARMBURG (1992) 6 NWLR (Prt 249) 627 among others, which dismissal, he concedes, does not entitle the counter – claimant to judgment, a counter – claim being a cross – action which must, like the plaintiff’s claim, be proved on the same Rules or be equally dismissed, as held in the cases of DABUP V KOLO (1993) 1 NWLR (Pt 317) 252, NWAENANG V NDARAKE & ORS (2013) LPELR 20720 (CA), in which case, the only obligation of the learned trial judge is to accordingly pronounce on each of the independent claims as was rightly done, dismissing both claims.
To buttress his submission that the Appellant failed to prove his case, learned counsel posited that contrary to the Appellant’s contention that the transaction was a pledge, Exhibits D1 & D2 (sic) signed by the Appellant with his evidence and that of his witness PW2, clearly shows that the transaction was a conditional contract for sale of landed property redeemable upon re-payment of the loan within 3 months which sale became absolute by the Appellant’s failure to fulfil the condition precedent, of paying back the loan within 3 months, as agreed upon, citing in support the case of TSOKWA OIL AND MARKETING CO V BANK OF THE NORTH (2002) FWLR (Pt. 112)1.
The Appellant having failed to prove the requirements of the existence of a pledge, to wit;
(a) Offer of the property as pledge;
(b) Acceptance of the said property as pledge;
(c) Consensus ad idem on the transaction; and
(d) The consideration for the pledge, learned counsel submitted that the argument that the transaction was a pledge is a farce, more so that a party pleading a pledge must also prove his title to the land, then the pledge itself; the party to the pledge and the circumstances, time and consideration for the pledge none of which the Appellant proved. Reliance was placed on the cases of KODILINYE V MBANEFO ODU (1935) 2 WACA 336, ATUANYUA V ONYEJEKWE (1975) 3 SC 115 and NDORO & ORS V PIANWII & ORS (2002) LPELR 5482 (CA).
Similarly to be discountenanced as an unpleaded fact and one which was neither canvassed at trial nor pronounced upon by the lower Court, is the Appellant’s submission that by merely entering into agreement that interest shall be paid, the transaction was a money lending business and by that single transaction, the 1st Respondent became an unregistered money lender within the Money Lenders Laws, 1938, Laws of Northern Nigeria, 1963. Courts, he argued, are bound by the records of appeal whose genuiness is presumed, and cannot go outside it in search of favorable evidence for any of the parties, citing in support, the cases of SOMMER V F.H.A. (1992) 1 NWLR (Pt. 219) 548, TEXACO PANAMA INC. OF NIGERIA LTD V S.P.D.C. (NIG) LTD (2002) 5 NWLR (Pt. 759) 209, among others.
Additionally, learned counsel urged us to expunge all arguments on non-suit and resist any adjudication on same the Appellant having not raised any separate ground of appeal on the point but has only smuggled it in his brief of argument. For this, the cases of BHOJSONS PLC V DANIEL KALIO (2006) 5 NWLR (Pt. 973) 330 SC, EJOWHOMU V EDOK – ETER MANDILAS LTD (1986) 5 NWLR (Pt 39) 30 – 31. Per Obaseki JSC, were cited.
Moreover, he continued, it is the Respondents and not the Appellant who have the right to complain of the dismissal of the counter – claim but have not done so having not filed a cross – appeal against the decision. The Appellant, learned counsel argued, is merely crying more than the bereaved. We were thus, finally urged to resolve the issue in favour of the Respondent and dismiss the Appeal.
In response, the learned Appellant’s counsel filed a reply brief on 14/5/2018 but deemed properly filed and served on 15/5/18 which, save for the submission that the issue of non-suit is covered by ground 2 of the Notice of Appeal, is essentially a repetition and re-argument of his brief of argument which in law is not the purpose of a reply brief. A reply brief is not meant to be a repetition of the arguments in the Appellant’s brief nor for adumbrating, embellishing or re-emphasizing the arguments in the appellant’s brief. See OGUANUHU & ORS V CHIEGBOKA (2013) 6 NWLR (Pt 1351) 588 ABDULLAHI V MILITARY ADMINISTRATOR & ORS (2009) 15 NWLR (Prt. 1165) 417.
A reply brief cannot be used as a tool for providing the Appellant a second bite at the cherry or for a rejoinder. Its function is only to enable the Appellant answer to fresh or new issues raised in the Respondent’s brief of Argument which were not taken in the Appellant’s brief. NITEL PLC V OCHOLI (2001) FWLR (Pt 174) 254, and ABDULLAHI V MILITARY ADMINISTRATOR & ORS (Supra). The Appellant cannot by a reply brief be allowed to eat to gluttony while the Respondent is famished and starved of any opportunity of a further reply. For this reason, I shall discountenance all argument in the reply brief save as it relates to the propriety of the argument on non-suiting the action which I shall consider at the appropriate stage.
In resolving the sole issue in this appeal, it is apt to begin with the competence of the Appellant’s argument on the question of non-suiting the action which the Respondent’s counsel argued, does not arise from the decision of the lower Court nor from any separate ground of appeal but which the Appellant’s learned counsel insisted is covered by ground 2 of the further Amended Notice of Appeal.
Ground 2 and its particulars provide:-
GROUND 2
The judgment of the trial Court is perverse
PARTICULARS
a. The trial Court dismissed both the plaintiff’s claim and the defendants’ counter claim and referred the parties to the lands Registry.
b. That where both parties could not prove their case before the Court, the option available to the Court is to non-suit the action not to dismiss it.
c. That it is the duty of the Court to resolve all issues before it one way or the order.
Evidently the Appellant’s counsel has anchored his ground on particular (b) to the said ground 2 of the further Amended Notice of Appeal, which he submitted albeit, erroneously, supports, the argument on non-suit. This argument however, which does not cut the ice of the law, is not legally worth a dime as a ground of appeal is not synonymous with its particulars. A ground of appeal, basically, consists of an error of law or fact alleged by the Appellant as the defect in the judgment appealed against and on which he relies to set aside the decision.
See METAL CONSTRUCTION (WEST AFRICA) LTD V MIGLIORE & ORS (1990) 1 NWLR (Pt 126) 299, FEDERAL MORTGAGE BANK OF NIG., V NDIC (1999) 2 SC 44. In other words, a ground of appeal is the reason why the decision of the inferior Court is considered wrong by the aggrieved party. See TIMPA OKPONI PERE V THE STATE (2013) 10 NWLR (Pt. 1362) 209, IDIKA V ERISI (1988) 2 NWLR (Prt 78) 503, 578. A ground of appeal therefore isolates and defines the wrong said to have been committed by the trial Court and challenges the decision by furnishing the rationale or the reason for the decision.
On the other hand, particulars in ground of appeal as defined by the Apex court in GLOBE FISHING IND. LTD & COKER (1990) 7 NWLR (Pt 162) 265 SC and recently restated by the same Court in AWUSA V. NIGERIA ARMY (2018) LPELR 44377 (SC) Per Augie JSC, are the specific reasoning, finding or observations relating to or projecting the error or misdirection complained of. They are the itemization of the error or misdirection in the judgment or Ruling which show what the complaint against the decision really is. Therefore while the ground of appeal is or consists of the error of law or fact which the Appellant alleges is wrongly committed by the lower Court and relied upon to seek the setting aside of the decision, the function of particulars in a ground of appeal is to highlight the nature of the complaint and show how the complaint will be canvassed by the Appellant. See DIAMOND BANK PLC V PARTNERSHIP INVESTMENT CO. LTD (2009).
The Particulars support, elucidate and explain further the complaint in the ground of appeal by providing the gist of the issues involved in the appeal OLORUNTOBA-OJU & ORS V ABDULRAHEEM & ORS (2009) 13 NWLR (Prt 1157) 83. Explaining the difference between the grounds of appeal and their particulars Adekeye JSC in the case of RESSEL DAKOLO V GREGORY DAKOLO (2011) 16 NWLR (Pt 1272) 22 @ 53 para E – H had this to say.
Grounds of appeal are to be differentiated from their particulars, while the grounds of appeal must clearly state what the Appellant is complaining about, the essence of particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedure law that is affected by the error or misdirection identified or complained of in the ground of appeal.
Therefore, the essence of the requirement of stating particulars to a ground of appeal is to adequately inform the Respondent and the Court of the errors or misdirection alleged in a ground of appeal so as to enable the Respondent meet the case of the Appellant and for the Court to be aware of the nature of the error or misdirection complained of. See MONGUNO V BLUE WHALES & CO (2011) 2 NWLR (Pt 1231) 275, It follows that the particulars of a ground of appeal must flow or arise from the main complaint encapsulated in the ground of appeal. The particulars of error or misdirection should not be divorced from or be independent of the complaint in the main ground of appeal, but must of necessity be ancillary to the grounds of appeal. In no way should the particulars of grounds of appeal be parallel to or be at cross roads with the main ground which it aims to support, explain elucidate or highlight. See NYAKO V ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR 41822 (SC).
Like a child, a particular to a ground of appeal must derive its source, strength and standing from its mother, the main ground.
The two cannot be disconnected but must be intimately related and connected to each other and be read together as a whole, the particulars being in harmony, with, and providing an explanation to the ground of appeal. As aptly stated Per Muhah’d JSC in NYAKO V ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (Supra) at page 40 paras A – G;
it is trite law that the complaint of an appellant can hardly be properly understood where there is a dichotomy between the mother/main ground and its ‘children’ or particulars. In fact, the law does not allow a party to divorce the partners of a ground of appeal from the main ground of appeal.
In the case at hand, ground 2 of Notice of Appeal as reproduced ante is that the judgment of the lower Court is perverse.
What does it mean to say that a judgment or decision is perverse
A judgment of a Court is said to be perverse:
(i) when it is speculative and runs counter to the evidence;
(ii) where it is shown that the Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious;
(iii) when the findings are must unreasonable; or
(iv) when it has occasioned a miscarriage of justice. See ONU V IDU (2006) 12 NWLR (Pt 995), MOMOH V UMORU (2011) 15 NWLR (Pt 1270) 217, and miscarriage of justice occurs where there are substantial errors in adjudication which effect is that the party relying on such errors may likely have a judgment in his favour. See AMADI V NNPC (2000) 6 SC (Prt 1) 66.
The expectant particulars to the complaint of perversity of the judgment complained of in ground 2 must be those which highlight or explain the particular error or misdirection allegedly wrongly committed by the lower Court, specifying and clearly projecting the said error or misdirection. They should itemize, from the judgment appealed against, the specific errors or misdirection; set out the aspect of the substantive law or procedure affected by the alleged error or misdirection and explain or support the complaint of perversity of the decision. They should show exactly what the complaint is all about. Therefore, the particulars, like the ‘children’ cannot be disconnected from their mother, the main ground of appeal.
They must derive their source from, be connected to or supportive of the complaint in the main ground. They cannot be at variance or at crossroads with their source, the main ground itself. The particulars cannot be otherwise, and where it is otherwise, the consequence of not relating or tying the particulars to the ground of appeal is certain and settled. It is that the offending particular which does not flow from or is not related to the ground, is incompetent and liable to be struck out. See for instance the case of KACHIA V YAZID (2001) 17 NWLR (Pt 724) 431, among the avalanche of decided cases on this stated principle.
In the instant case, particular B which states that where both parties could not prove their case the available option is to non-suit the case and not to dismiss it, does not flow from ground 2 of the Notice of appeal having not been canvassed at trial or pronounced upon. A complaint of perversity of judgment cannot be on account of an issue not raised, canvassed and pronounced upon by the lower Court.
Thus, particular B does not flow from or support ground 2. It follows that where as in the instant appeal the particulars of a ground of appeal flows not from or are not in tandem or consistent with the main complaint in the ground of appeal, the particulars must be discountenanced. See GLOBE FISHING LTD V COKER (1990) 7 NWLR (Pt 162) 265, HONIKA SAWMILL (NIG) LTD V HOFF (1994) 2 NWLR (Pt 326) 257, OLUFEAGBA V ABDUR-RAHEEM (2009) 18 NWLR (Pt 1173) 384 ARIBO V CBN (2011) 12 NWLR (Pt 1260) 12. Similarly, this Court in the case of ZAMFARA STATE GOVT. & ANOR V UNITY BANK PLC & ANOR (2016) LPER 41813. Per Oho JCA held that particulars which are not intimately related to and do not flow from the ground of appeal are incompetent and liable to be struck out. Consequently, particular B which does not flow from ground 2 or from any ground of Appeal is incompetent and is accordingly struck out. All argument canvassed in support of the said particular are also discountenanced having no bearing with any ratio decidendi of the decision nor canvassed at the trial Court.
Furthermore, even for the purpose of argument, assuming without so deciding that the Appellant can raise on appeal for the first time the issue of non-suit, an order of non-suit would not avail him.
This is so because an order of non-suit is not granted just for the asking or as a matter of course. As aptly stated by the Apex Court in UGBODUME V ABIEGBE & ORS (1991) 8 NWLR (Pt. 209) 261, the order of non-suit has since ceased to be a technical procedure it used to be. It is one that can only be properly made upon the dictates of justice to both sides, when upon a calm and full view of the scale of the case in favour of either side, the Court can say that no side is entitled to win. The Court must therefore be satisfied that the circumstances of the particular case deserves such an order. See CHIKERE V OKEGBE (2000) 12 NWLR (Pt 681) 274, ODI & ORS V IYALA & ORS (2004) 8 NWLR (Pt 875) 283. As an order of non-suit is that order which terminates the plaintiff’s case without a decision or pronouncement on its merits or which did not adjudicate all relevant issues on merit. See CRAIG V CRAIG (1967) NMLR 52, OLUFOSOYE & ORS V OLORUNFEMI (1989) 1 NWLR (Pt 95) 26, it is an order which inevitably mean giving a plaintiff a second chance to prove his case.
It is therefore imperative for the Court to consider whether the grant of an order of non-suit would, in the circumstance be wronging the defendant on one hand and on the other hand, whether the dismissal of the case would be wronging the plaintiff.
The test for determining when an order of dismissal or non-suit should be made is as laid down by the apex Court in EJIOFOR V ONYEKWE & ORS (1972) 1 ALL NLR (Pt 2) 527 as follows: –
“… if the plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to technical hitch, and the defendants not being entitled to the judgment of the Court, the interest of justice demands that such a party should not forever be shut out from representing his case.”
By concordant decisions of the apex Court including the cases of CRAIG V CRAIG (Supra) and EGBUCHU V CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR ‘ 40053 (SC) Per Kekere-Ekun JSC at page 12 paras B – E the circumstances when an order of non-suit would be made are:-
“a. where the plaintiff has not failed in toto or entirely to prove his case;
b. where the defendant is not in any event entitled to the Court’s judgment; and
c. where no wrong or injustice to the defendant would be caused by such order.”
Flowing from these, it is now undoubtedly settled that a plaintiff who has failed in toto to prove his case is not entitled to an order of non-suit. Where in a trial of an action evidence has been adduced by both parties and the plaintiff fails to prove his case, the proper order to make is that of a dismissal. An order of a non-suit would be inappropriate in such a circumstance. See EGONU V EGONU (1978) 11 – 12 SC 111, OYEYIOLA V ADEOTI (1973) 1 NWLR 103, KODILINYE V ODU (1935) 2 WACA 336, GOLD V OSASEREN (1970) 1 ANLRP 129, OKOYE V NIG CONSTRUCTION FURNITURE CO LTD (1991) 116 NWLR (Pt 199) 501, CRAIG V CRAIG (Supra), OSUJI V EKEOCHA (2009) ALL FWLR (Prt 490) 626, 662 paras E – G.
I should also emphasize the law that an order of non-suit should not be made merely for the purpose of giving the plaintiff a second bite at the cherry to enable him prove what he was previously unable to prove. See MANDILAS & KARABERIES V ORIDOTA (1972) LPELR 1836 (SC), ILODIBIA V NIG CEMENT CO. LTD (1997) LPELR 1494 (SC). In the instant case, the learned trial judge after reviewing the evidence of both parties adjudged that the plaintiff, now Appellant, totally failed to establish his case to entitle him to judgment, the reason for the dismissal of the Appellant’s claim.
Appellant’s learned counsel has not challenged that finding nor seriously contend that the plaintiff proved his claim. His only quarrel seems to be with the propriety of dismissing the claims of both contending parties and not ordering a non-suit not. It is not so much that the Appellant proved his case. The law is trite that an appeal Court cannot make an order of non-suit where the finding of the trial Court dismissing the suit on ground of total failure to prove the claim has not been challenged or the appellant’s complaint against the judgment has not been upheld. See OGBECHIE V ONOCHIE (1986) LPELR 2278 (SC).
The point has to be made that the mere dismissal of the plaintiff’s claim as well as that of the counter-claimant does not, contrary to the Appellant’s argument, automatically warrant an order of non-suit. The grant of such an order is discretionary and it depends on the facts & circumstances of the each case and what will meet the justice of the case. Even then, the parties or their counsel must be heard on the matter – EGBUCHU V CONTINENTAL MERCHANT BANK PLC & ORS (Supra). And on this note, I say no more except to conclude that the argument on non-suit neither flows from any ground of appeal nor is therefore incompetent nor does the order avail the Appellant.
Now, the center piece of the Appellant’s argument on his issue No. 2 is that the transaction between the original parties which gave rise to the action before the lower Court was and remained a pledge of landed property but the trial judge failed to avert his mind to the legal principle that ‘once a pledge always a pledge.’ Learned counsel tenaciously held unto and anchored his argument on this principle. Without doubt, the maxim ‘once a pledge always a pledge’ is indeed a legal truism. The law is trite that if a transaction was a pledge of land per se in return for a loan of money, it remains a pledge and the land is redeemable however long it may be in the possession of the pledgee. See OKOYE & ANOR V OBIASO & ORS (2010) 8 NWLR (Prt. 1195) 145, NWAGWU & ANOR V OKONKWO & ORS (1987) 3 NWLR (Prt 60) 314. Ariwoola JSC in the case of ACHILIHU & ORS V- ANYATONWU (2013) 12 NWLR (Pt. 1368) 256, also reported as (2013) 35 WRN 65 @ 70 lines 5 – 20 succinctly capture the principle of law thus:
“It is therefore trite law that if a transaction was a pledge per se in return for a loan of an amount of money, the land is clearly redeemable however long it may be in possession of the pledgee. See Iheaguta U. Nwagwu & Anor v. Ohazurike Okonkwo & Ors (1987) 1 NWLR (Pt 60) 314, OKOIKO & ANOR V. ESEDALUE & ANOR (1974) 1 ALL NLR (Pt. 1) 452 DUNG v. CHOLLOM (1992) 1 NWLR (Pt. 220) 738 and DAMIN ANYANWU & ANOR v. B. IWUCHUKWU (2000) LPELR (2000) LPELR 514 (2000) 15 NWLR (Pt. 629) 721 .. Indeed, it has also been held that there is no way long possession by the pledgee of land can lead to denial of right of redemption of the pledged land by the pledger the pledgee will always be entitled to redeem.”
Therefore, there can be no legal argument to the contrary. In other words if the transaction truly was and is found to be a pledge, no brilliant argument can transform or metamorphose the pledge into a sale to deny the Appellant the right of redemption of the pledged property.
Herein then that lies the crux of the matter and the key to the resolution of this issue.
What then is a pledge?
Linguistically, a pledge simply means a serious promise or agreement; a binding agreement to do or forbear or something you leave with another person as a way to show that you will keep your promise. In relation to landed property, a pledge is a bailment of chattel as security for a debt or other obligation without transfer of title. See (Merriam Webster’s Dictionary). A pledge of land or landed property is thus a bailment that conveys possessory title to property owned by a debtor (the pledgor) to a creditor (the pledgee) to secure repayment for some debt or obligation and to the mutual benefit of both parties. The term is also used to denote the property which constitutes the security.
In ADIELE IHUNWO V JOHNSON IHUNWO & ORS (2013) 8 NWLR (Prt 1357) 550 @ 566 B – D the Apex Court posed a similar question to which Ariwoola JSC, again, proffered the following answer:
“This means ‘a formal promise or undertaking’ the act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage. In this transaction, the debtor borrows money by physically transferring to a secured party the possession and the property to be used as security of the property will be returned if the debt is paid.”
Basically, every pledge consists of 3 parts;
(a) two separate parties, the pledger and the pledgee;
(b) a debt or obligation; and
(c) a contract of pledgor; and in line with the fundamental law of evidence, a person who alleges the existence of a pledge has onus of proving that such a transaction has indeed taken place between him, the pledgor and the pledgee in the presence of witnesses and if he fails to do so, his claim is bound to fail. See IROEGBU V MPAMA & ORS (2009) LPELR 8510, IHUNWO V IHUNWO & ORS (Supra) Ariwoola JSC held thus:
“The onus is clearly on the plaintiff, this being a land case involving a declaration of title to land, to prove the existence of the type of pledge to which he owes the title of the land he claimed. In discharging the onus, the plaintiff must rely on the strength his case.”
It is imperative therefore that a party alleging its existence and seeking to rely on it must prove to the satisfaction of the Court:
(1) that the pledge took place, in other words, the offer and acceptance of the property as a pledge in presence of witnesses;
(2) the pledged sum;
(3) consensus ad idem on the transaction;
(4) the consideration for the pledge;
(5) that the pledgee was put into possession;
(6) the mode of redemption of the pledged property. See IROAGANACHI V MADUBUKO & ANR (2016) LPELR ? 4008 (CA), AKUCHIE V NWAMADI (1992) 8 NWLR (Pt 257) 214 – 286.
Coming back home and relating these requirements to the case at hand, the Appellant pleaded that the certificate of occupancy No. S.51 was deposited with the 1st Respondent as collateral for the loan which was backed up with a written agreement.
That written agreement in Hausa Language is Exhibit 1 and its English Version is Exhibit 1A. Similar documents were also tendered, admitted and marked Exhibit 3 & 3A respectively.
Exhibit 1A reads:
Peace be upon you.
After several greetings and with the hope that you are doing fine. I Alhaji Bala Sokoto, I hereby sell my parcel of land that is covered by certificate No.S.51 the one lying by the west surrounded with fence at the cost of N40, 000.00 with the condition that within three months you will be given profit and your money will be refunded to you. If it exceeds three months without given you your money with profit then the sale becomes absolute.
Bye
Alhaji Mallam Salihu
Sgd.
Sgd. 1/3/1991
Jibril I collected the money
Sgd I mentioned in full
Alhaji mallam Salihu (N40, 000.00).
Underlining, mine for emphasis.
Exhibit 3A, is a replica of Exhibit 1A except for the use of the word ‘interest’ in place of the word ‘profit’ used in Exhibit 1A.
The reproduced contents of Exhibit 1A which speaks for itself, is far from any ambiguity and clearly states the nature of the transaction between the parties. It is a conditional sale of the described parcel of land for N40,000 on the condition that the N40, 000 plus interest thereon be refunded within 3 months to the 1st Respondent or the sale becomes absolute. The key phrases in Exhibit 1A ‘I sell my parcel of land’ and ‘If it exceeds three months without given (sic) you your money with profit then the sale becomes absolute’, clearly express the intention of the parties. Except words have lost both their ordinary and legal meaning, these clear & unambiguous words in Exhibit 1A cannot be construed as connoting a pledge transaction.
The words ‘I sell’ and ‘the sale becomes absolute’ are not features of a pledge transaction. In a pledge transaction, unlike a sale transaction where both the possession and ownership of the property are permanently transferred to the buyer, the pledgor, the owner of the property, only passes possession to the pledgee, temporarily, until the terms and conditions are fulfilled. The pledgor retains the ownership of the property. He does not sell the property to the pledgee.
It therefore stands out tall and clear that in contradistinction to a pledge transaction, the transaction or agreement manifestly expressed in Exhibit 1A is a ‘conditional sale’ of property which becomes absolute ‘upon failure to repay the loan as at when stipulated, and this takes the agreement in Exhibit 1A away from that of a pledge. This is further strengthened by the evidence of PW2, the Appellant’s agent when he said;
“that sometimes in February 1991, the plaintiff engaged me as an agent to sell this property to the 1st defendant for N40, 000. There was agreement crystal that the plaintiff will re-purchase the same property in 3 months? time with interest to be paid to 1st defendant.”
What is more, as rightly held by the learned trial judge, the Appellant by his standing is deemed to understand the contents of Exhibits 1 and 1A which he signed. By his educational standing, being a onetime Permanent Secretary with the State Govt., the Appellant must be deemed to understand the contents & purport of Exhibits 1 & 1A, 3 & 3A which he signed, the making & authenticity of which have not been denied or challenged and must, by operation of law, be and remain bound by same.
It is clear per force of Exhibit 1A that the intention of the parties is that the transaction was a conditional sale of the property which crystallizes and takes effect on condition that the Appellant fails to comply with the stipulated condition within the stipulated time. This type of conditional sale which is guided by the basic rules of contract, takes effect upon fulfillment of the condition precedent to which it is subjected. Where a contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not binding unless the condition to which it is subjected occurs or takes place. In other words, the contract is not formed and not binding unless the condition precedent is compiled with or fulfilled. See BEST NIG. LTD V BLACK WOOD HODGE (NIG) LTD (2011) 5 NWLR (Pt 1239) @ 126. In TSOKWA OIL MARKETING CO (NIG) LTD V B.O.N. (2002) 11 NWLR (Pt 777) 163 the Apex Court held thus:-
“It is trite that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow A condition must be fulfilled before the effect can follow.”
However, once the condition precedent is fulfilled or occurs, the contract becomes effective and binding. Similarly, by Exhibit 1A the original parties herein entered into a conditional contract of sale of the parcel of land covered by certificate of occupancy No.S.51 subject to the fulfillment of the condition that Alh. Bala Sokoto would repay the loan plus the interest as at when so stipulated, or else the contract becomes effective. Undeniably, the loan was not repaid within 3 months or several years after and upon the fulfillment of the condition precedent, that is, the failure of Alh. Bala Sokoto to repay the loan plus the interest within 3 months, the contract became effective and binding. Giving effect to the plain meaning of Exhibit 1A, as it should be so construed and ascribing to the words their ordinary, or grammatical meaning in order to give effect to the intention of the parties and not to re-write their contract, see Petroleum (special) Trust Fund v Western Project Consortium LTD & Ors (2007) 14 NWLR (Pt 1055) 478, the conditional sale between the original parties had, after the Appellant’s failure to repay the loan as at when stipulated, become complete, effective and binding. Obviously, the grammatical configuration of the contents of Exhibit 1A renders the Appellant’s argument that the transaction was a pledge, highly hyperbolic and is only but a farce. I say so for two reasons.
Firstly, the law is settled that the address of counsel no matter the brilliance or ingenuity displayed cannot be a substitute for legally admissible evidence. Surely the argument that the transaction was a pledge has no place in evidence or in law. See OLAGUNJU V ADESOYE & ANOR (2009) 9 NWLR (Pt 1146) 225, TSKJ (NIG) LTD V OTOCHEM (NIG) LTD (2018) LPELR 44294 (SC).
Secondly, the law against parole evidence is still as fresh as it was when first enunciated. Parole evidence cannot be admitted to add to, vary or contradict a deed or other written document or instrument. UBN LTD V SAX (NIG) LTD (1994) 8 NWLR (Pt. 361) 150 OLANLEGE V AFRO CONTINENTAL (NIG) LTD (1996) 7 NWLR (Pt. 458) 29.
See also Section S.128 of the Evidence Act, 2011.
The document speaks for itself and it should generally be the voice of the document and not the oral evidence of a witness that should be heard.
Moreover, apart from the conspicuous absence of the word ‘pledge’ in Exhibit 1A, there is nothing to show that parties were ad idem that the agreement they entered into was a pledge and not a conditional sale of the property as evinced by Exhibit 1A and supported by the evidence of PW2 and DW1.
All said and done, there is no need to further belabour this point and without indulging in any circumlocution, the agreement between the parties in Exhibit 1A is not a pledge of landed property but a conditional sale of the property, pure and simple, which sale became absolute upon the Appellants failure to repay the loan as at when agreed upon. For this reason I cannot fault the conclusion arrived at by the learned trial judge that ‘I agree with learned defendant’s counsel that the failure of plaintiff to do as he was expected, the sale became absolute and I so hold, Rather I anoint same as being pukka. In the circumstance, I resolve the lone issue against the Appellant and in favour of the Respondents. Accordingly I dismiss the appeal as lacking in merit and affirm the decision of the lower Court delivered on 16/2/2009 which dismissed the Appellant’s claim and the Respondent’s counter – claim.
Parties shall bear their cost.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read the draft of the judgment just rendered by my learned brother Amina Audi Wambai, JCA. I fully agree with the reasons therein and the conclusion that there is no merit in the instant appeal.
The appeal is hereby dismissed. I subscribe to the orders made as to costs in the lead judgment.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I have read in advance the draft copy of the Judgment just delivered by my learned brother Justice Amina Audi Wambai JCA. I agree entirely with the reasoning and the conclusion therein. The Appeal is unmeritorious and is accordingly dismissed. I abide by all the consequential orders contained therein.
Appearances:
U. N. IbekweFor Appellant(s)
I. Abdullahi, with him, A.S.H. BinjiFor Respondent(s)
