ADEBIYI & ORS v. BUSARI
(2022)LCN/15996(CA)
In the Court of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, October 04, 2022
CA/AK/63/2019
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
1. MRS. FLORENCE ADEBIYI 2. MR. ADEBIYI ADEBOWALE JOHN 3. MR. ABEBIYI DABAJIDE JAMES 4. IYABO SORINOLU 5. ADEKEMI AGBOOLA APPELANT(S)
And
ADEOLA JEMILAT BUSARI RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON CAN ACT BY HIMSELF OR THROUGH AN AGENT IN THE PURCHASE OF PROPERTY
Under the law, a person can act either by himself or through an agent in doing anything lawful, including the purchase of property. A person can act for a disclosed or undisclosed principal. WEMA BANK V AJAH (2019) LPELR–47848, COTECNA INTL LTD V CHURCHGATE (NIG.) LTD (2010) LPELR 897.
Under the law, an agent is a person authorized by another to act for him, one trusted with another’s business. He is one authorized to transact all businesses of his principal, some kind or all business of some particular place or representative. See Black’s Law Dictionary 7th edition. The word agent or agency denotes one who acts or a doer that accomplished a thing. See OSIGWE V PSPLS MANAGEMENT CONSORTIUM & ORS (2009) 3 NWLR (PT. 1128) 378, NIBB V OLALOMI IND. LTD (2002) 5 NWLR (PT. 761) 532. See also NIGER PROGRESS LTD V NEL CORP. (1989) NWLR (PT. 107) 68 which was cited in 1st Respondent’s brief.
The words of Onu JSC in BAMGBOYE V UNIVERISTY OF ILORIN & ANOR (1999) 10 NWLR (PT. 622) 290, 329
“An agent, in my view means more or less the same as delegate.” UKPANAH V AYAYA (2010) LPELR – 8590 (CA).” PER BASHIR, J.C.A.
CONDITIONS TO BE PRESENT FOR A COURT TO HAVE JURISDICTION TO DETERMINE A CASE BEFORE IT
In the case of MADUKOLU V NKEMDILIM (1962) NSCC 374 at 379–380 the Supreme Court has stated when a Court can be said to have jurisdiction to determine a case before it.
(a) The Court must be properly constituted as regards numbers and qualification of members of the bench. No member is disqualified for one reason or another.
(b) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction and
(c) The case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. PER BASHIR, J.C.A.
THE POSITION OF LAW ON THE PRIMARY RESPONSIBILITY OF THE TRIAL COURT
I am satisfied that the trial Judge had satisfactorily appraised and evaluated the evidence in this case and made findings consistent with the pleadings and evidence. I do not see any valid reason to disturb the findings of facts made by the trial Court. It is the primary responsibility of the trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. See KAKULU V KAKULU (2016) LPELR–41552.
Once the trial Court has properly evaluated the evidence and come to the right conclusion, this Court cannot and is not in a position to interfere. BALOGUN & ORS VS AGBOOLA (1974) LPELR–721 (SC). See also ALO V STATE (2015) ALL FWLR (PT. 775) 262. Therefore, both issues above are resolved against the Appellants. PER BASHIR, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of Hon. Justice A. O. Ayoola of the Osun State High Court Osogbo delivered on the 13th day of November, 2018.
The Respondent who was the Plaintiff at the lower Court by his writ of summons and statement of claim filed on the 5th April, 2013 raised the following claims against the Appellant:
(a) Declaration that the contract of sale to the Plaintiff of a part of the property known as No. 2, Fagbewesa Street, Osogbo, Osun State measuring 75 feet by 200ft and bounded as follows:
Front side by Fagbewesa Road;
Back side by Ajakaye House;
Right side by remainder of the Defendants’ property and;
Left side by John Kolade Shopping complex is still valid and subsisting.
(2) An order of specific performance directing the defendants to apply for and obtain the consent of the Osun State Governor as required by the Land Use Act, 1978 and in compliance with said law.
(3) An order of perpetual injunction restraining the defendants either by themselves, their servants, agents and privies from reselling, alienating or otherwise dealing with the said property in a manner inconsistent with the right of the plaintiff.
The facts upon which the Plaintiff/Respondent anchored his case before the lower Court is that sometimes in 2010 the Appellant offered to sell her property described above which was communicated to him by his agent Alhaja Toyin Alaran (PW1) and Solomon Adebayo while he was in London. He got interested and an agreement was eventually reached in 2012 for a consideration of Ten Million Naira which he paid in three installments for which a cash receipt was issued by the 3rd Appellant on behalf of the other Appellants evidencing receipt of the payment, consequent upon which the property was handed over to the Respondent in the presence of witnesses. Since then the Respondent has been exercising all rights of ownership and possession without any let or hindrance until December 2012 when the 1st Appellant informed the Respondent’s agent (PW1) that she will resell the property. And that was the beginning of the problem.
The Appellants on the other hand contended that Alhaja Alaran (PW1) deceived them into believing that their property was being purchased by someone else. Whereas PW1 was the actual purchaser. They became a laughing stock in town that their tenant has bought their property. They became disappointed that their tenant could buy their property under false presence, they decided to refund his money N10,000,000.00 which sum the PW1 Alhaji Toyin Alaran refused to collect. She started harassing them using the police to arrest and imprisoned them.
Finally, the Appellants are saying that Adesola Jemilat Busari, the Respondent in this appeal and the plaintiff at the lower Court is false, non-existent and fictitious.
The controversy landed them before the trial Court where the Appellants as defendants raised a counter-claim. Ultimately at the hearing of the case, the Respondent called 4 witnesses self inclusive and tendered 3 exhibits namely Exhibits “P1”, “P2” and “P3” which are the sale of land agreement made between the Appellants and the Respondent, cash receipt dated 23rd August, 2012, and the Respondent’s solicitors petition to the police against the Appellants. On the other hand, the Appellants also called three witnesses among whom are the 1st and 3rd Appellants. They did not tender any document in support of their case. The only document a facebook printout they seek to tender was rejected and so marked.
The learned trial judge after listening to the address of counsel finally entered judgment in favour of the Respondent by granting all his reliefs as itemized earlier on in this judgment. The Court proceeded to dismiss the Appellants’ counter-claim.
Not satisfied with the decision, the Appellants filed a notice of appeal on the 29th day of November, 2018 containing 7 grounds of appeal. Thus (without their particulars).
GROUNDS OF APPEAL
(1) The learned trial Judge erred in law to have taken the issue of the identity of the Plaintiff/Respondent for granted in the light of the Defendants/Appellants’ defence and the Respondent’s name.
(2) The learned trial Judge erred in law to have relied on Exhibit “P1” which has various versions the contents of which is at variance with the evidence led by the plaintiff in Court.
(3) The Learned Trial Judge erred in law to have ordered the Appellants to collect N10,000.00 with accrued interest from the registry of the High Court when there was no evidence before the trial Court that the Respondent paid same into any account of the Court.
(4) The Learned Trial Judge erred (sic) law to have ordered Specific Performance against the Appellants in the circumstance of this case when an award of damages can adequately compensate the respondent.
(5) The trial Judge erred in law by stating the facts of the case contrary to the evidence led before the Court and pleadings of the parties and relying on same in his final judgment.
(6) The Learned Trial Judge erred in law by not making any finding in his judgment as a result of which he made decisions that are not delivered from the pleadings and evidence led before the Court.
(7) The judgment is perverse and against the weight of evidence.
The Appellants supplicated for the following reliefs:-
(1) An order allowing the appeal.
(2) An order setting aside the judgment of the lower Court in its entirety.
(3) An order dismissing the case of the plaintiff as lacking in merit.
The appeal was entered on 13th February 2019; after which the learned Appellants’ counsel settled and filed the Appellants brief on 22nd March, 2019 through the hand of Mr. S. O. Popoola, Esq., duly adopted on 26/5/2022. Meanwhile, the learned Appellants’ counsel formulated 4 issues for determination as follows:-
(1) Whether the Plaintiff/Respondent sufficiently proved his identity for the trial Court to assume jurisdiction in this suit.
(2) Whether the trial Court was right to rely on Exhibit P1 dated January 2011 to order specific performance of contract entered into in 2012.
(3) Whether the trial Judge is right in making conclusions without making findings of facts in accordance with the pleadings and evidence laid before the Court in his judgment.
(4) Whether the trial Court was right in ordering specific performance against the Appellants in the circumstance of this case.
RELATIONSHIP OF ISSUES TO THE GROUND OF APPEAL
Issue one relates to ground one of the grounds of Appeal.
Issue two relates to grounds 2 and 4 of the grounds of Appeal.
Issue three relates to grounds 3, 5 & 6 of the grounds of Appeal.
Issue four relates to grounds 4 & 7 of the grounds of Appeal.
The learned Respondent’s counsel in the Respondent’s brief of argument, counsel wholly adopted the 4 issues formulated by the Appellants’ counsel.
Looking at the four issues above, one will not fail to notice that Issue No. Two (2) was formulated from grounds 2 and 4 of the grounds of appeal and Issue No. Four (4) was equally formulated from grounds 4 and 7. This much was expressly stated by the Appellants’ counsel. This formula has violated the inviolable rule relating to the formulation of valid issue for determination in an appeal. See YUSUF UMAR & ORS V AKINDIPE & ORS (2000) LPELR–3532 (SC) where the Supreme Court held:
“Two or more issues cannot be formulated from one ground of appeal, but one issue can be formulated from more than one ground of appeal. By the Appellant’s own admission, Issue 1 was formulated from grounds 1, 3, 5 and 5 while Issue Two was formulated from ground one. This is clearly wrong as two issues were formulated from one ground of appeal (i.e. ground 1). As My Lord Ngwuta, JSC pointed out, it makes no difference that other grounds of appeal are involved”.
See also AKINRIBOYA V AKINSOLE & ANOR (1998) LPELR–5464 (CA).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
I must therefore say straight away that Issues Two (2) and Four (4) submitted by the learned Appellants counsel are grossly incompetent in that they both run foul of the settled principle of law that a party is not permitted to raise or formulate more than an issue from a ground of appeal or a combination of grounds of appeal. See HON. PROF. CHUDI UWAZURIKE & ANOR V CHIEF AUSTINE NWACHUKWU & ANOR (2013) 3 NWLR (Pt. 1342) 503.
The implication of this fatal error is that issues No. 2 and 4 along with all the grounds of appeal from which these issues are formulated namely grounds 2, 4 and 7 having been contaminated are hereby struck out for being incurably bad and incompetent.
Accordingly, this appeal will now be resolved based on the 2 remaining valid issues which are Issues Nos. 1 and 3.
ARGUMENT ON ISSUES
Submitting on Issue No. 1 which simply asked whether the Plaintiff/Respondent sufficiently proved his identity for the trial Court to assume jurisdiction. The learned Appellants’ counsel submits that by paragraphs 21 and 38 of their statement of defence that the Respondent is a fictitious person who does not exist and they do not know whether the Plaintiff/Respondent is a man or woman. This averment argued the learned counsel has placed on the Respondent obligation to “properly identify himself or herself before the trial Court (and) the Court is duly bound to be interested in the identity of the Respondent as this will affect the jurisdiction of the Court”.
Appellants’ counsel went on to further submit that the trial Court cannot take the issue of the identity of the Respondent for granted as his suit was first filed on 5th April, 2013 without the written statement on oath of the Plaintiff/Respondent but same was eventually filed on 6/1/2014 when it became ridiculous for the case to be conducted without the Plaintiff/Respondent showing up in Court; to give evidence. Counsel referred us to pages 136–143 of the record of appeal for the evidence of Plaintiff/Respondent and his cross-examination in the open Court. However, he did not come with any means of identification in the nature of National Identity Card or Voters Card which he told the Court he does not have but said he had an international passport which he did not bring to Court on that day.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The learned counsel urged us to invoke Section 167(d) of the Evidence Act to presume that the Respondent withheld the evidence of his identity which if he had produced would have been against him. It will have shown that the Respondent is not Adesola Jemilat Busari which is the name of a female in Islam. While the Respondent is a man whose true name is BASIRU OKE. Therefore, proper parties are not before the Court in this case which fact has robbed the Court of its jurisdiction. See UNOKA V AGILI (2008) ALL FWLR (PT. 723–1349. See also the evidence of DW3 who tendered the facebook page of the said Basiru Oke.
Submit further that the Respondent as a fictitious person is not capable of entering into any contract as he has no capacity to sue and could not have a signature. Yet the trial Court expressed an opinion hostile to this aspect of the defence of the Appellants. It is the duty of the Court to look at the various signatures of the Respondents and make findings on the dissimilarities. So the identity of the Respondent has not been proved by virtue of the case of the Appellants which the Court refused to agree that the Respondent is fictitious. This has therefore adversely affected the jurisdiction of the trial Court.
Appellants’ counsel urged us to resolve this issue in favour of the Appellants and hold that the identity of the Respondent was not properly ascertained before the trial Court assumed jurisdiction. Judgment should therefore be set aside and the claim of the Respondent be struck out.
The next valid issue is No. 3, which complains that the trial Judge arrived at conclusion without making findings of facts in accordance with evidence and pleadings which is another way of saying that the learned trial Judge did not make proper evaluation of evidence led in Court before coming to his conclusion in favour of the Respondent. Counsel cited the example where the trial Court accused the Appellants for being greedy when he returned the Respondent’s N10,000,000.00 paid to him into the account of PW1. When in actual fact there is no evidence of greed before the Court. See page 246. Submit that this is a mere opinion of the Judge that is not derived from the pleadings or evidence. It is erroneous and should be reversed. That the trial Judge ignored the pleadings of evidence of the Appellants’ witnesses and took the evidence of the Respondent under cross-examination as gospel truth without making any finding or evaluation of evidence especially with regard to the reason Jolayemi (DW1) refused to sign the agreement. There was no reason or foundation laid in the judgment of the trial Court for believing the Respondent and disbelieving the Appellants. NGWU V NNAJI (1991) 5 NWLR 18 at 29, UCHE WILLIAM V THE STATE (1992) 10 SCNJ 74–82.
Submit that the Appellants only returned the purchase price of N10,000,000.00 into the account of PW1 who first paid the money to them when they discovered that the Respondent is fictitious and does not exist, which fact the trial Judge ignored and held that there is nothing wrong if PW1 bought the Appellants’ property being their old tenant.
Counsel submits that there is no evidence of illegality in the return of the N10,000,000.00 into the account of PW1. The alleged illegality is a mere opinion of the Judge.
After making reference to some of the findings by the learned trial Judge, the learned Appellants counsel submits that it is obvious that the learned trial Judge did not observe the procedure of stating the facts, findings of fact, evaluation of facts and making correct inference from the evaluated facts before making conclusions. That the trial Court was highly influenced by the opinion expressed in the judgment that there was nothing wrong in the Appellants selling their property to PW1, their tenant; hence the Court did not also see anything wrong in the method adopted by PW1 to buy the property. As a result, the Court granted all the Respondent’s reliefs.
Counsel finally urged this Court to allow this appeal, set aside the judgment of the trial Court and dismiss the case of the Respondent for lacking in merit.
The Respondent’s counsel when the appeal was taken on 26/5/2022 formally abandoned his notice of preliminary objection and proceeded to adopt his Respondent’s brief in which the 4 issues formulated by the Appellant were wholly adopted. In view of the vices which vitiated Appellant’s issues Nos. 2 and 4. We shall only examine the reply of the Respondent in respect of the two subsisting valid issues which are Issues 1 and 3 respectively.
Submitting on Issue No. 1, Respondent’s counsel argued that there is no credible evidence to show that the Respondent is non-existent or fictitious as claimed by the Appellants. What is in evidence is that the Respondent was then in the United Kingdom (U.K) negotiated through his agents Alhaja Toyin Alaran (PW1) and Solomon Adebayo (PW3) for the purchase of the property in issue; for a consideration of N10,000,000.00 which amount was paid installmentally from January 2011 after which a purchase agreement Exhibit “P1” was executed and the property subject matter of this action handed over to him in presence of witnesses. Respondent assumed ownership and exercised all rights of ownership and possession without let or hindrance, until December 2012 when the 1st Appellant informed PW1 that she will resell the property. Consequently, the Respondent placed a caveat on the property captioned thus:
“THIS HOUSE IS NOT FOR SALE”.
Moreover, the Respondent as the plaintiff in the matter physically testified, appeared in Court and answered questions under cross-examination, where the Respondent always maintained his identity as Adesola Jemilat Busari. See pages 214–216 of the record.
Submit that the Appellants has a heavy burden of proving that the Respondent was non-existent, fictitious or a wrong person, which the Appellants failed to do. He who asserts must prove. MBANEFO V AGBU & ANOR (2014) 1 SCM 68 at 93–94 and Section 131– 134 of the Evidence Act, 2011.
Submit that the Appellants’ argument that the Respondent is not existing is an afterthought to cover up the Appellants’ unlawful acts of unilateral repudiation of a valid contract of sale of property voluntarily entered into between the Appellants and the Respondent.
That the trial Court rightly decided the issue of identity of the Respondent at a preliminary point under jurisdiction. See 240–242 of the records, where the Court held that the Appellants failed to prove the issue of non-existence of the Respondent or his fictitiousness. Even the facebook printout credited to the Respondent by the Appellant was rejected. It does not form part of the records of this appeal. It cannot be relied upon as it has no evidential value anymore. See AKINYELW V BADAGARY L. G. (2015) ALL FWLR (PT. 764) 104. The decision rejecting the facebook printout has not been appealed against.
Submit further that the argument by the Appellants requesting this Court to take judicial notice of the Respondent’s name being a female’s name is irrelevant and out of place not having being raised in the pleadings. A Court cannot make a case for the parties. It is against all known principles of fair hearing.
Respondent’s counsel urged us to discountenance the Appellants’ submission on this issue.
On Issue Three, Respondent’s counsel submits that the findings and conclusion arrived at by the learned trial Judge were all arrived at after evaluation of evidence and facts of the case and demeanor of witnesses before the Court. Submit that the duty to evaluate, appraise and ascribe probative value to evidence is the primary duty of the trial Court, and not the Appellate Court that does not possess the advantage the trial Court had to see and listen to the witnesses. Where the trial Court has satisfactorily performed that function, the Appellate Court will not interfere with the findings of the trial Court. See SAWABA V GAADI (2016) ALL FWLR (PT. 823) 1864 at 1850.
Submits that even the finding of facts that James Jolayemi the agent of the vendors refused to sign as a witness because he was not paid N100,000.00 was duly founded on pleadings and evidence before the trial Court. See the plaintiff’s reply to the defendant’s statement of defence and defence to counter-claim. Same is also contained in paragraph 12 of the PW1’s further statement on oath pages 83–88 of the record. And the issue of greed was testified to by PW3 when he said at page 217 of the record:
“Jolayemi is an agent, he was just greedy he refused to sign because he insisted on collecting extra N100,000.00 from the plaintiff. We all shared the agency fees”.
Submit that the returning of the sum of N10,000,000.00 by a stranger into the account of PW1 is illegal and a unilateral repudiation of the contract. The Court was right in holding as such.
Counsel submits further that there is ample evidence on record that the sum of N10,000,000.00 was paid into an interest yielding account of the Osun State High Court. See page 213 of the record.
Learned Respondent’s counsel urged this Court to discountenance the argument of the Appellant’s counsel on this issue and then resolve same in favour of the Respondent.
RESOLUTION OF ISSUES
Under the first valid issue for determination in this appeal, the Appellants raised the question whether the Plaintiff/Respondent has proved his identity to give the trial Court the jurisdiction to proceed with the matter.
The case of the Appellants is that he sold his property No. 2 Fagbewesa Street, Osogbo, Osun State supposedly to one Adesola Jemilat Busari (Respondent) for a consideration of N10,000,000.00 (Ten Million Naira) only through PW1 acting as the agent of the Appellant on the understanding that the Respondent at that material time was in the U. K. (United Kingdom).
The agreed consideration was paid installmentally at the completion of payment cash receipt was issued by the Appellant. See Exhibit “P2” upon which a sale of land agreement was earlier on executed sometimes on or about January, 27th 2012. Later on, the Appellants said they discovered that PW1 actually was the person who bought their property and that Adesola Jemilat Busari is fictitious and non-existent. So the Appellants repudiated the sale and offered to refund the purchase price which PW1 refused to accept. So they paid the money into the Diamond Bank account from which account the PW1 paid the Appellants in the first place.
Respondent instituted this action in Court for the enforcement of the sale of the land to him, insisting that his name is actually Adesola Jemilat Busari and he truly exist and is the buyer of the property in question. The lower Court agreed with the Respondent, entered judgment in his favour.
Under the law, a person can act either by himself or through an agent in doing anything lawful, including the purchase of property. A person can act for a disclosed or undisclosed principal. WEMA BANK V AJAH (2019) LPELR–47848, COTECNA INTL LTD V CHURCHGATE (NIG.) LTD (2010) LPELR 897.
Under the law, an agent is a person authorized by another to act for him, one trusted with another’s business. He is one authorized to transact all businesses of his principal, some kind or all business of some particular place or representative. See Black’s Law Dictionary 7th edition. The word agent or agency denotes one who acts or a doer that accomplished a thing. See OSIGWE V PSPLS MANAGEMENT CONSORTIUM & ORS (2009) 3 NWLR (PT. 1128) 378, NIBB V OLALOMI IND. LTD (2002) 5 NWLR (PT. 761) 532. See also NIGER PROGRESS LTD V NEL CORP. (1989) NWLR (PT. 107) 68 which was cited in 1st Respondent’s brief.
The words of Onu JSC in BAMGBOYE V UNIVERISTY OF ILORIN & ANOR (1999) 10 NWLR (PT. 622) 290, 329
“An agent, in my view means more or less the same as delegate.” UKPANAH V AYAYA (2010) LPELR – 8590 (CA).”
What this implies is that a person is entitled to act by himself or through an agent for the doing of anything including the purchase of landed property. Similarly, the law recognized a situation where an agent can act for a disclosed or undisclosed principal. What is even clear in this case is that throughout the negotiation for the sale and purchase of the property, the PW1 had clearly represented to the Appellants that he was buying the property for the Respondent whose name he gave as Adesola Jemilat Busari. Payment of consideration was made and an agreement for the sale of the land was executed all in the name of the Respondent.
It was the Appellants who alleged that the Respondent is fictitious and non-existent. The law is clear that he who asserts must prove. The learned trial Judge after reviewing the case of the parties as presented before him and the address of counsel for the Appellants and the Respondent who was the plaintiff at the Court of trial and who the Appellants alleged is fictitious and does not exist, the learned trial Judge held at page 241 of the record thus:-
“The said plaintiff appeared before this Court adopted his statement and was cross-examined before this Court. In the instant case, he is the one who complained and so named on record. He is the person who has commenced this action in Court, he is the one who had been wronged. See Green V Green (1987) 3 NWLR (Pt. 61) 480; Ogunsanya V Dada (1990) 6 NWLR (Pt. 156) 347. He who asserts must prove, it was the duty of the defendants to prove unequivocally that the person who presented himself as plaintiff in this case was a wrong person and this they failed woefully to do. Therefore this Court has jurisdiction to entertain this suit. I shall now go into the merit of this case.”
By virtue of Sections 131–134 of the Evidence Act (2011) whosoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist, those sections read:
131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.
Proof in civil cases is on preponderance of evidence. That means one side’s position outweighs the other. In civil matters, the onus of proof shifts from the plaintiff to defendants and vice versa. The onus always rests on the party who would fail if no evidence is adduced on either side. See Chief Afiemora Musa Agboneni V Chief Fatai Alakin (2018) LPELR–44807 (CA).
ONUS OF PROOF
In this case, the onus is on the plaintiff to prove that there was an agreement between the plaintiff and the defendants for the sale of No. 2, Fagbewesa Street, Osogbo and that the plaintiff performed his own side of the contract according to the terms of the agreement. On the pleadings and in her statement on oath, PW1 clearly stated that the plaintiff got to know about the sale of the property through one Jolayemi Thomas, the agent of the defendants and she in turn informed the plaintiff who was in U.K. That herself and one Solomon Adebayo was appointed as agents of the plaintiff and they negotiated for the purchase. The property was offered for sale, there was negotiation, there was offer and acceptance, agreements of sale was prepared and signed by parties, money exchanged hands. In fact, there was an agreement as to the mode of payment which was installmental. I do not believe the evidence of the defendants that they resile from the agreement because they did not see the plaintiff physically but they collected money from the plaintiff’s agent without seeing him physically. If the physical presence of the plaintiff was very important to the sale, why they don’t say that initially. Why did the DW wait for the comments of his neighbours before realizing the house was bought by the tenant and not the plaintiff. I do not believe that. PW1 testified that Jolayemi Thomas spoke severally on telephone with the plaintiff and he confirmed the sale of the property at a price of N10,000,000.00.
The sale of land agreement Exhibit “P1” which was tendered evidencing payment was signed by all parties except one of the five vendors, one Adebiyi Adebowale John who was said to be in China at the time. James Jolayemi, the agent of the vendors refused to sign as a witness because he was not paid N100,000.00. Exhibit “P2” was cash receipt for N10,000.00 for payment for two plots of land received from the plaintiff. The defendants decided to repudiate the agreement on the ground that PW1 was the actual buyer of the property and not the plaintiff. From the evidence before me, plaintiff paid the agreed purchase price to the defendants, but DW1 in his evidence stated that the money was returned because she became a laughing stock, because people challenged her and asked why she sold her property to her tenant. Assuming without conceding that her tenant bought the property, what is wrong in that, if anything she should have been given the first offer of refusal having been a long-standing tenant.
It is evident from the facts of this case that the defendants knew that PW1, Alhaja Toyin Alaram was acting as agent of the plaintiff, the defendants negotiated with her collected money from her, paid agency fees, signed the sale agreement, issued receipt in the name of the plaintiff. As a matter of fact, the property was handed over to the plaintiff who instructed that culvert be constructed in front of the building and in fact caused to be inscribed “this property is not for sale” on the building.
The defendants want this Court to believe that Exhibit “P1” was not signed by the plaintiff. It is not the duty of the Court to investigate documents or the signatures of witnesses. A Court of law has a duty to hear and evaluate same with a view to arriving at a decision, my role is not that of an inquisitor.
The defendants collected the full amount for the sale of the property but out of their own volition and greed, returned the said sum into the account of PW1 which said sum on the application of the plaintiff’s counsel, the Court made an order to be paid into the Court’s interest yielding account. It is evident from the facts of this case that the sale was completed, payment was made in full, the plaintiff took possession and it was handed over in the presence of witnesses. Therefore, the contract of sale was complete.
From the entire evidence before this Court, I find that there was a contract for the sale of No. 2, Fagbewesa Street, Osogbo between the plaintiff and the defendants, issue one is therefore resolved in favour of the plaintiff”.
I entirely agree with the findings of the trial Court that the Respondent is not fictitious and does actually exist having filed his case in Court, appeared physically to testify as PW2 and answered questions under cross-examination. A person who appears in Court and identified himself as Adesola Jemilat Busari (Plaintiff/Respondent he has simply satisfied the requirement of self-identification. It is now the duty of the Appellants who is asserting the contrary that the Respondent is someone else other than whom he professed to be, to now lead evidence to prove his contrary assertion.
The argument by the Appellants’ counsel that the Respondent failed to produce before the trial Court evidence of his identity in the nature of National Identification Card or Voter’s Card to prove his identity amounts to withholding of evidence under S. 167(d) is a total misconception of law on burden of proof under this circumstance. In short, Section 167(d) of the Evidence Act has no place in this situation, it will not be judicious to demand the Respondent to prove an assertion made by the Appellants.
The feeble attempt made through DW3 to show that the Respondent is not who he said he was using a facebook printout of one Basiru Oke was rejected by the trial Court. There is no appeal on the ruling rejecting this piece of evidence. Consequently, the issue of identity of the Respondent as adjudged by the trial Court is a closed chapter as we cannot interrogate anything which is not part of the appeal before this Court.
The submission by the Appellants’ counsel that the trial Court erred when it ought to, but refused to take judicial notice of the fact that “Jemilat” is the name of a Muslim woman. This submission in my humble view is totally misconceived and out of this world, because Section 122 of the Evidence Act, 2011 has identified items that the Court is bound to take judicial notice of, names of persons peculiar to one gender under Islamic Law or any other religion at all is not one of them. The trial Court nay any Court at all has no duty to take judicial notice of the name of the Respondent as being that of a female or male.
The jurisdiction of the Court is not adversely affected by the fact that the identity of the Respondent has been challenged.
In the case of MADUKOLU V NKEMDILIM (1962) NSCC 374 at 379–380 the Supreme Court has stated when a Court can be said to have jurisdiction to determine a case before it.
(a) The Court must be properly constituted as regards numbers and qualification of members of the bench. No member is disqualified for one reason or another.
(b) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction and
(c) The case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Going by the above parameters, the trial Court was within its right to assume jurisdiction, there is no feature in the case preventing it from assuming jurisdiction. The Court was equally correct in placing the burden of proof of the identity of the Respondent on the Appellants.
On the second issue, I do not agree with the Appellants that the trial Court did not evaluate the evidence led before it, before making his conclusions in the judgment. Evaluation of evidence is simply the assessment of the pieces of evidence so as to give it value. See LAFIA L. G. V EXECUTIVE GOVERNOR NASSARAWA STATE (2012) LPELR–20602 (SC). An appraisal of the judgment in this matter will show clearly that the learned trial Judge not only properly understood the case of the parties before him, His Lordship has done a good job in the evaluation of the facts and the evidence led before him before making his conclusion and placing the burden of proof where it rightly belonged.
The learned trial Judge first examined the case of the Respondent/Plaintiff based on his claim and concluded that he has succeeded in proving that he had actually purchased and paid for the property in issue regard being had to the effect of Exhibits “P1” and “2” being sale agreement and acknowledgment of payment receipt issued to him by DW3. There is also the evidence that it was the Appellants who repudiated the same agreement on the ground that the purchaser was fictitious and non-existent being as a decoy on the part of PW1 to buy off their property. The learned trial Judge rightly placed the burden of proof on the Appellants which they woefully failed to establish.
Even with respect to the comment by the learned Judge about greed shown by the Appellants contrary to the submission of the Appellants’ counsel that finding is supported by evidence led through PW3 that Jolayemi refused to sign as a witness because he was not given the sum of N100,000.00 he demanded. And that there is evidence that the Appellants seek to repudiate the sale agreement and return the purchase price due to their greed. See pages 85–88 and 217 of the record. Apparently, the trial Court did not go outside the confines of the evidence to make findings of its own, essentially all the findings are derived from pleadings and evidence. Moreover, the mere mention of “greed” by the trial Judge was more of an arbiter. You can see clearly that the decision of the Court was not founded on this particular statement or question of greediness rather it was based on the fact the Appellants have in the circumstance of this case lost their right to repudiate the contract. A finding I find most apposite and correct in law.
A Court that is guided by this procedure cannot be accused of failure to evaluate evidence or failure to make findings of facts in accordance with the pleadings and evidence.
I am satisfied that the trial Judge had satisfactorily appraised and evaluated the evidence in this case and made findings consistent with the pleadings and evidence. I do not see any valid reason to disturb the findings of facts made by the trial Court. It is the primary responsibility of the trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. See KAKULU V KAKULU (2016) LPELR–41552.
Once the trial Court has properly evaluated the evidence and come to the right conclusion, this Court cannot and is not in a position to interfere. BALOGUN & ORS VS AGBOOLA (1974) LPELR–721 (SC). See also ALO V STATE (2015) ALL FWLR (PT. 775) 262. Therefore, both issues above are resolved against the Appellants.
For all the reasons adumbrated above, this appeal has no scintilla of merit. It is hereby dismissed. Accordingly, the judgment of the Osun State High Court in Suit No. HOS/45/2013 delivered on 13th November 2018 is hereby affirmed. I award cost in favour of the Respondent in the sum of N200,000.00.
NB:
This judgment became due during the vacation, although it has been prepared and fully ready but I was unable to deliver same because I travelled out of jurisdiction.
Now with the consent and consensus of all concern, I hereby proceed to read the judgment today being the 1st and earliest opportunity since resumption from the vacation.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have read in draft, the leading judgment prepared by my learned brother, Yusuf Alhaji Bashir, JCA; in this appeal.
I agree with the resolution by his lordship of the two issues raised in the appeal and the conclusion to the effect that the appeal is lacking in merit.
Accordingly, I too dismiss the appeal and affirm the judgment of the lower Court delivered on 13/11/2019, in Suit No. CA/AK/63/2019
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and conclusion reached in judgment.
I must say that the more I read the facts of this case, the more amazed I was at the ridiculousness of the case canvassed by the Appellants both in the lower Court and in this Court. The Appellants entered into a contract by which they sold a property to the Respondent, who was resident in the United Kingdom at the material time and acted through an agent, for the sum of N10 Million and they executed a Sale of Land Agreement dated 27th of January, 2012 in favour of the Respondent in his name, Adesola Jemilat Busari. The Respondent paid the agreed sum of N10 Million to the Appellants through his agent in three installments and the Appellants received the payments and issued the Respondent with a receipt acknowledging the total sum paid. There was evidence led that in the course of the negotiations for the purchase, the agent of the Appellants had telephone discussions with the Respondent and was aware that the Respondent was a male.
Months after the execution of the contract and receipt of the full payment, the Appellants woke up to contend that the Respondent, in favour of whom they executed the agreement and from whom they received the N10 Million, was a fictitious and non-existent person and they sought to repudiate the agreement and return the money collected. They predicated this preposterous assertion on the fact that the Respondent was male, while the middle name he bore was a female name. The Respondent commenced the action in the lower Court to enforce the contract in his name. The Respondent attended Court in person to prosecute the case and he gave evidence as one of the witnesses in proof of his claim and confirmed that his name was Adesola Jemilat Busari. The evidence of the Respondent as to his name was not challenged, discredited or disparaged under cross-examination. The Appellants led no contrary evidence to show that the Respondent was not the bearer of the name. Yet, they persisted in their assertion that the person to whom they sold the property was a fictitious and non-existent person.
Now, a name is the grouping of several letters of an alphabet, or other symbols, which represent the identification of a person or an object. It is a word or set of words by which a person or thing is known, addressed, or referred to. This Court is not aware of any law that forbids a person from bearing any name he or she desires, and the Appellants did not refer this Court to any such law. The stereotyping of particular names being for the male or female sex came about by reason of convention and not by any law. It is only where a person assumes a name for criminal or un-desirous purposes that it becomes a problem. The Appellants did not plead or lead evidence to show that the Respondent bore the name Adesola Jemilat Busari for criminal or un-desirous purposes. The reality is that the name by which someone or something is called is not important, because the essence of the person or thing remains the same regardless. This is why people conveniently bear the names of their villages and towns, like Alhaji Malumfashi or Mallam Aminu Kano, or the names of animals, like Mr. Bird or Mr. Fish, or the names by which villains are described, like Mr. Crooks or Mr. Butcher, or even religious expressions, like Thank God or Divine Blessings. This point was conveyed by William Shakespeare in his play, Romeo and Juliet, with the line, “What’s in a name? That which we call a rose by any other name would smell just as sweet”. In other words, the naming of a person or thing is irrelevant.
But perhaps more worrisome to me is the fact that a supposedly trained legal practitioner went to the lower Court and came on appeal to this Court to canvass this ludicrous contention on behalf of the Appellants. This is a contention that should never have found space for expression in any Court of law, not even in a Customary Court.
It is rather unfortunate that, in this time and age, people with obviously dubious and unscrupulous claims still find lawyers willing to be used as tools to do their bidding and desire to arm-twist the justice system into supporting such claims. Such lawyers end up sometimes in bringing the justice system into disrepute. Thank God the lower Court saw through the bogus contention of the Appellants in the instant case.
The action of such lawyers does not engender public confidence in our justice system. We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. Counsel must never forget the onerous responsibility that their privilege of being lawyers, and to stand and address a Court, carries. In Rondel Vs Worsley (1967) 1 QB 443, Lord Denning, MR, explained the role of a Counsel thus:
“As an advocate, he is a minister of justice equally with the Judge. He has a monopoly of audience in the higher Courts. No one save he can address the Judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick and choose his clients. He is bound to accept a brief for any man who comes before the Courts. … He must accept the brief and do all he honorably can on behalf of his client. I say ‘all he honorably can’ because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants; of his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth… He must produce all the relevant authorities, even those that are against him. He must disregard the most specific instructions of his client, if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline…”
This statement on the duty of a legal practitioner was reiterated by this Court in Okonji vs Onwusanya (2012) R 9286(CA) per Shoremi, JCA thus:
“A legal practitioner is a minister in the temple of justice. His first duty therefore is to act in the interest and promotion of justice. This is what sustains his profession and makes it honorable. A counsel must not knowingly mislead the Court against the course of justice.”
Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who wrote in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
“We belong to an ancient, to a great, to an honored profession. The practice of law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it, we have received the gratitude and respect of our friends and neighbors whom have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.”
The more Counsel imbibes and abides by these admonitions, the better the justice delivery system becomes and the more fulfilling the sacrifice put in by the stakeholders in the system is. It is hoped that Counsel to the Appellants will learn from this and not make himself a willing tool in the hands of all and every type of client in future.
I agree with the lead judgment that there is no iota of merit in this appeal. It is downright frivolous and I too hereby dismiss same. I affirm the judgment of the High Court of Osun State delivered in Suit No HOS/45/2013 by Honorable Justice A. O. Ayoola on the 13th of November, 2018. I abide by the order on costs in the lead judgment.
Appearances:
S. O. Popoola, Esq. For Appellant(s)
S. O. Abiola, Esq. with him, E. O. Anifowose, Esq. and I. A. Alaran, Esq. For Respondent(s)
