ADEOLA v. NOK & ORS
(2022)LCN/16007(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, September 02, 2022
CA/K/156/2014
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
MRS. ROSE ADEOLA APPELANT(S)
And
1. EMMANUEL NOK 2. MALGIT JAMES FRANCIS 3. ALICE BALA RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION NOT DERIVED FROM GROUNDS OF APPEAL IS INCOMPETENT
In other to prevent this type of arguments cropping up, that it is important for parties to indicate what ground(s) of appeal the issues for determination raised by them are being distilled from. It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. See the cases of ABE VS. UNIVERSITY OF ILORIN (2013) 6 NWLR (PT. 1319) PAGE 183 AT 205 PARAGRAPH D – G and HONIKA SAWMILL (NIG.) LTD VS. MARY OKEJIE (1994) 2 NWLR (PT. 326) 252 AT 262. However, not tying the issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. In the case of UBN LTD VS. ODUSOTE BOOK STORES LTD (1995) NWLR (PT. 421) AT 563, it was held that:
“While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that, that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.”
From the above, it is crystal clear that the rules do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also the cases of NIGERIAN PORTS PLC VS. B. P. PTE LTD (2012) 18 NWLR (PT. 454) AT 480 and HANSEATIC INTERNATIONAL LTD VS. USANG 2002 13 NWLR (PT. 784) AT 401 – 402. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated the 27th day of November, 2007, the Appellant with her husband (now deceased) as Plaintiffs, filed an action against the Respondents as Defendants, claiming against them jointly and severally as follows:
“1. The refund by the Defendants to the Plaintiffs, the sum of N2,200,000.00 (Two Million Two Hundred Thousand Naira) being the sum of money which the Defendants, in collaboration with their agents and cohorts (whose true identity and whereabouts are not known to the Plaintiffs) fraudulently induced the Plaintiffs to pay to them, as consideration for the purported assignment to the Plaintiffs, of a plot of land known as Plot No 14, Tanko Ayuba Road, Narayi High Cost, Kaduna when the Defendants and their said agents/cohorts knew very well that they do not have title to the said plot of land.
2. The refund by the Defendants to the Plaintiffs, the sum of N41,000.00 (Forty-one Thousand Naira) being the amount of money which the Defendants and their said agents/cohorts fraudulently induced the Plaintiffs to pay to the Kaduna State Development Company Limited as the outstanding ground rent in respect of the said plot of land when the Defendants and their said agents/cohorts know very well that they do not have title to the said plot of land.
3. The sum of N1,000,000.00 (One Million Naira) as general damages for the fraudulent misrepresentation made by the Defendants to the Plaintiffs and which fraudulent misrepresentation actuated the Plaintiffs to part with the above-mentioned sum of N2, 241, 000.00 (Two Million, Two Hundred and Forty-One Thousand Naira) without getting anything in return (consideration) for the said sum of money.”
Whereof the Plaintiffs claim against the Defendants the sum of N3, 241,000.00 plus interest at the rate of 10% per annum from the date of judgment in this suit and until the entire judgment sum is fully liquidated.
It is the claim of the Appellant as per the statement of claim that one Mr. Mohammed Nadabo, also an estate agent showed her a plot of land known as Plot No. 14, Tanko Ayuba Road, Narayi High Cost, Kaduna (also known as Plot No. 14, Tanko Ayuba Road, Barnawa Phase ii, Kaduna) and told her that the owner of the said plot of land had put same up for sale through the Respondents in the sum of N2,200,000.00 (Two Million Two Hundred Thousand Naira).
The Appellant also claims that she later took her husband who was the 1st Plaintiff (now deceased) at the trial Court, to the said plot, he showed interest and the said Mohammed Ndabo was invited to the Chambers of Sani, Jigah & Co., the Appellant’s solicitors, for further discussions in respect to the sale of the said plot of land.
The Appellant further claims that during the meeting at the Chamber, the said Mohammed Ndabo gave a photocopy of the title document of the said land bearing the name of Group Captain Alice Mshelia to the Appellant’s solicitor for the purpose of conducting a search at the Land Registry of Kaduna State Development and Property Company Limited and which search was duly conducted by the solicitor and who was satisfied with his findings after the staff at the Land Registry has confirmed that the title document was genuine.
The Appellant also claims that the said Mohammed Ndabo was thereafter instructed to invite the agent who was acting for the said Group Captain Alice Mshelia in respect of the sale transaction and he came to the office of the solicitors with the 1st Respondent who also came with the 2nd Respondent whom the 1st Respondent introduced as a colleague in their agency firm.
The Appellant claims that at the solicitors’ office that same day, the 23rd day of April, 2007, the solicitor, Barrister Jigah then requested for the original title deed to the said land but the 1st Respondent told the said solicitor that the documents were with the land owner at Abuja but promised to make the documents available to the solicitor the following day.
The Appellant claims also that after the above promise by the 1st Respondent, the 1st Respondent gave to the Appellant’s solicitor, a copy of the deed of assignment that was executed between the land owner and another person whom the 1st Respondent claimed was the initial interested buyer but who could not pay the required consideration for the property.
The Appellant also claims that the 1st Respondent represented to her solicitor that the said Group Captain Alice Mshellia was his aunt who had acquired the land prior to her marriage and did not want her husband to know anything about the sale of the land and so convinced the solicitor to speak with her on the phone and that he believed he was actually speaking to the land owner.
The Appellant also claims that after several failed attempt to see the owner of the land and which attempt was stalled by the 1st Respondent, the 1st and 2nd Respondents introduced one Mr. Buba Gazama to the Appellant as the person who had the authority of the land owner to collect the money on her behalf while the 3rd Respondent was impersonating as Group Captain Alice Mshellia, the land owner.
The Appellant also claims that she and her deceased husband issued a cheque of N2, 200,00.00 (Two Million, Two Hundred Thousand Naira) to the said Mr. Buba Gazama in his name upon the instruction of the 1st Respondent and the said cheque was cleared by the said Mr. Buba Gazama.
The Appellant further claims that after the cheque was cleared, she and her husband discovered that the transaction was a fraud and then decided to institute the action which gave rise to this appeal.
The Respondents on the other hand filed a joint statement of defence wherein they denied the Appellant’s claim and urged the trial Court to dismiss the suit with substantial cost.
The Appellant opened her case on the 24th day of February, 2009 wherein 4 (four) witnesses testified as PW1, PW2, PW3 and PW4 respectively, and tendered documents which were admitted in evidence and marked as exhibits.
The Respondents on the other hand opened their case on the 13th day of July, 2013 wherein 4 (four) witnesses testified as DW1, DW2, DW3 and DW4 respectively and tendered documents which were admitted in evidence and marked as exhibits. The Respondents closed their case on the 21st day of February, 2012 and the matter was adjourned to the 15th day March, 2011 for addresses.
The parties filed and exchanged their respective written addresses and same was adopted on the 3rd day of May, 2012 and the matter was adjourned for judgment.
The trial Court delivered judgment in the case on the 18th day of December, 2012 in favor of the Respondents, and dissatisfied with the said judgment delivered by the trial judge, Hon. Justice M. M. Ladan in the Suit No: KDH/KAD/541/2007, the Appellant filed a Notice of Appeal dated the 27th day of February, 2013 raising 11 (Eleven) grounds of appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The parties to the appeal filed and exchanged their respective Briefs of Argument. The Appellant then filed an Amended Brief of Argument on the 15th day of November, 2021 settled by his Counsel, Sunday Olorunmola Ake, Esq., wherein he raised 9 (Nine) issues for determination thus:
1. Whether having regard to the pleadings filed by the Appellant and those of the 1st and 2nd Respondents and the evidence adduced in support thereof, can it be said that the lower Court was right to have held that the Appellant could not prove her claim against the 3rd Respondent in this case? (Distilled from Ground 1)
2. Whether the learned trial Judge was right to have resorted to speculations and assumptions in making a case for the 3rd Respondent and which case, the 3rd Respondent did not make for herself before the Court? (Distilled from Ground 2)
3. Whether the learned trial Judge was right to have found and held that the only role played by the 3rd Respondent in the failed transaction can only give rise to criminal liability and not civil liability? (Distilled from Ground 3)
4. Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right when it held that the 1st and 2nd Respondents cannot be held liable to pay damages to the Appellant for breach of warranty of authority which they claimed was given to them by Group Captain Alice Mshelia for the sale of the latter’s plot of land in question and which warranty of authority induced the appellant to enter into the failed transaction but which authority the 1st and 2nd Respondents never had or possessed in actual fact? (Distilled from Ground 4)
5. Whether the decision of the lower Court, to the effect that, the appellant’s failure to join Mr. Buba Gazama as a co-defendant in the case was fatal to the appellant’s case is justifiable in law? (Distilled from Ground 5)
6. Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right, when it held that there was no evidence before the Court to show or prove that the 1st and 2nd Respondents conspired or connived with Buba Gadzama to collect money on behalf of Group Captain Alice Mshelia? (Distilled from Ground 7)
7. Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right, when it held that there was no evidence adduced by the Appellant before the Court to show or prove that Group Captain Alice Mshelia was not the person who wrote the letter of authority (Exhibit 4)? (Distilled from Ground 8)
8. Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right when it held that the 1st and 2nd Respondents cannot be held liable to pay damages to the Appellant for breach of warranty of authority, on the ground that, there was no agency agreement between the Appellant and her demise husband and the 1st and 2nd Respondents wherein the 1st and 2nd Respondents were to look or source for a plot of land for the appellant and her demise husband to buy? (Distilled from Ground 9)
9. Whether having regard to the facts pleaded and proved by the appellant in this case, can it be said that the lower Court was right when it held that the only remedy available to the appellant against the 1st and 2nd Respondents in the circumstances of the instant case, is the refund of the commission which the Appellant paid to the 1st and 2nd Respondents as agents to Group Captain Alice Mshelia and not the purchase money that was paid to Buba Gadzama at the instance of the 1st Respondent and damages for breach of warranty of authority? (Distilled From Ground 10)
On issue one, the Appellant’s Counsel argued that the lower Court ought to have accepted, relied and acted on the unchallenged and uncontroverted evidence of the Appellant that was given against the 3rd Respondent and that the failure of the 3rd Respondent to file a defence and cross-examine the Appellant and her witnesses clearly shows that the 3rd Defendant has no defence to the Appellant’s claim in the suit and thus it is totally wrong in law, for the lower Court to have acted otherwise, to the effect that, the Appellant could not prove her claims against the 3rd Respondent. On this issue, learned counsel for the Appellant cited a good number of authorities which includes the cases of ADELEKE VS. IYANDA (2001) FWLR (PT. 60) 1580 AT 1594 PARA A and BERNARD OKOEBOR VS. POLICE COUNCIL & ORS (2003) FWLR (PT. 1640) 189 AT 210 PARAS B – C.
On issue two, the Appellant’s Counsel argued that the trial Court arrived at its findings contained at pages 145 – 146 of the record of appeal despite the unchallenged and uncontroverted evidence that was adduced before the Court by both the Appellant and the 1st and 2nd Respondents respectively, to show how the 3rd Respondent impersonated and fraudulently represented to the Appellant that she was the real Group Captain Alice Mshellia, the actual owner of the property. It was further argued that the conclusions were reached by the trial Court for the sole purpose of making a case for the 3rd Respondent and which case was not made by the 3rd Respondent herself and thus the findings reached by the Court in favour of the 3rd Respondent’s case are nothing but a function of mere speculations and assumptions. On this issue, Counsel cited the case of ODUBEKO VS. FOWLER (1993) 9 SCNJ (PART II) 185 AT 196.
On issue three, the Appellant’s Counsel argued that the facts pleaded and proved by both the Appellant and the 1st and 2nd Respondents respectively before the trial Court and which facts were neither denied nor challenged by the 3rd Respondent, are enough to form the legal basis for an award of damages for the fraudulent misrepresentation and deceit by impersonation, which was willfully committed by the 3rd Respondent against the Appellant. It was further submitted that the trial Court was wrong to have held that since the only role played by the 3rd Respondent in the failed transaction, is the impersonation of Group Captain Alice Mshelia, the role can only give rise to criminal liability when it is trite that the concepts of fraudulent misrepresentation and deceit are in the realm of civil wrongs and which wrong when committed by a person can clearly and undoubtedly give rise to civil liability contrary to the decision of the trial Court.
On issue four, the Appellant’s Counsel submitted that the trial Court was wrong when it held that the 1st and 2nd Respondents cannot be held liable to pay damages to the Appellant for breach of warranty of authority which they claimed was given to them by Group Captain Alice Mshelia for the sale of the latter’s plot of land in question and which warranty of authority induced the Appellant to enter into the failed transaction but which authority the 1st and 2nd Respondents never had or possessed in actual fact. It was further argued that the decision was wrong as apart from receiving the sum of N200, 000.00 (Two Hundred Thousand Naira) from the Appellant as their commission for acting for the alleged owner of the said plot of land, the 1st and 2nd Respondents also admitted before the trial Court that they actually acted as agents of the purported owner/seller but their only defence is that, they were deceived by the 3rd Respondent and her cohorts, into believing that the 3rd Respondent is actually or truly the said Group Captain Alice Mshelia.
The learned counsel for the Appellant argued further that the only question the trial Court ought to have answered but failed to do in determining whether or not the 1st and 2nd Respondents are liable to pay damages to the Appellant is whether or not the 1st and 2nd Respondents actually had the authority or consent of the true or actual owner of the said plot of land to sell as they claimed and which representation of warranty of authority induced the Appellant to buy the said plot of land which question the Court would have answered in the negative if it averted its mind to it.
It was also argued that the law is that, where an agent claims or represents to a third party that he has the authority or consent of his principal, and the third party is thereby induced to enter into a contract with the principal, and it is eventually discovered that the agent does not have the requisite authority or consent of his principal to bring about the purported contract, the agent is said to be guilty of a breach of warranty of authority and for which breach, the agent could be sued for damages by the innocent third party and that it is expected of the 1st and 2nd Respondents to act with high degree of care and skill.
The Appellant argued further that the 1st and 2nd Respondents’ breach of warranty had made the Appellant to part with their hard earned money in the sum of N2,200,000 (Two Million, Two Hundred Thousand Naira) to another person, Mr. Buba Gazama, who the 1st Respondent also represented to the Appellant as the person with the authority or consent of their client to collect the said sum from the Appellant and the N200,000 (Two Hundred Thousand Naira) which the Appellant paid the 1st and 2nd Respondents as their commission. It was further submitted that it is only reasonable and fair for the 1st and 2nd Respondents to be made to refund the said sum of N2,400,000 (Two Million, Four Hundred Thousand Naira) and liable to pay general damages for tying down the Appellant’s money and other pecuniary losses suffered by the Appellant, such as the sum of N41,000.00 (Forty One Thousand Naira) that was paid by the Appellant as ground rent for the said land.
On issue five, it was submitted that the failure of the Appellant to join Mr. Buba Gadzama as co-defendant in the suit, cannot in any way be fatal to the Appellant’s case so as to justify the dismissal of their claims against the 1st – 3rd Respondents at the trial Court when the Appellant pleaded and proved that they do not know the whereabouts of the said Buba Gadzama. On this point, counsel cited Order 13 Rule 16 of the Kaduna State High Court (Civil Procedure) Rules 2007 and the case of T. R. AJIBOLA & ORS VS. PERMANENT SECRETARY, TEACHING SERVICE COMMISSION, EKITI STATE & ORS (2007) ALL FWLR (PT. 350) 1341 AT 1357 PARA G.
On issue six, the Appellant’s Counsel argued that the finding of fact made by the trial Court to the effect that, there was no evidence before the Court to show that the 1st and 2nd Respondents conspired or connived with Buba Gadzama to collect money on behalf of Group Captain Alice Mshelia, cannot be supported having regard to the express and specific averments contained in the Appellant’s statement of claim and coupled with unchallenged and uncontroverted evidence that was adduced by the Appellant in support of the said averments in this regard.
On issue seven, the Appellant’s Counsel argued that paragraph 22 (f) of the statement of claim and paragraphs 5 (b) and 8(c) are all evidence alluding to the fact that Group Captain Alice Mshelia wrote the letter of authority (Exhibit 40) which is on record, that it was the 3rd Respondent who impersonated the real Group Captain Alice Mshellia in the entire failed transaction.
On issue nine, the Appellant’s Counsel submitted that the damages arising from the concept of breach of warranty of authority, is not founded on an agency relationship between the agent and a third party, but based on an alleged or purported agency relationship between an agent and his supposed or assumed principal which is eventually discovered not to exist in actual fact. It was further argued that an agent will be liable to pay damages to a third party for breach of warranty of authority, where the agent induces an innocent third party to enter into a contract with the agent’s supposed or assumed principal, when in actual fact, the agent does not have express or implied authority of such a principal to enter into such a contract on behalf of the principal with the third party and thus the decision of the Court that there was no agency relationship or agreement between the Appellant and the 1st and 2nd Respondents and thus they cannot be held liable for breach of warranty of authority is grossly misconceived and not founded in law and not founded or based on the facts and evidence adduced before the Court. On this point, counsel cited the case of UDENGWU VS. UZUEGBU & ORS (2003) FWLR (PT. 179) 1173 AT 1182 – 1183 PARAS H – C.
On issue nine, the Appellant’s Counsel submitted that the trial Court was completely wrong when it held that the only sum of money which the 1st and 2nd Respondents are liable to pay to the Appellant in the circumstance is the sum of N200, 000 (Two Hundred Thousand Naira only) being the commission paid to the 1st and 2nd Respondents by the Appellants for failed contract. The Appellant’s Counsel rehashed his argument on issue four and urged the Court to answer this issue in the Appellant’s favor and uphold the Appellant’s appeal.
On their own part, the 1st and 2nd Respondents filed their Respondents Brief of Argument on the 9th day of March, 2022 which was settled by their Counsel, Nelson Echeoga Ogbu Esq., raising 2 (two) issues for determination as follows:
1. Whether the Appellant proved its case before the Court below on the balance of probabilities to be entitled to the reliefs sought against the 1st and 2nd Respondents?
2. Whether the failure of the Appellant to adduce further evidence challenging the evidence of the 1st and 2nd Respondents before the Court below was fatal to the case of the Appellant warranting a dismissal of the instant Appeal?
On issue one, the 1st and 2nd Respondents’ Counsel submitted that by Sections 131 and 132 of the Evidence Act, 2011, he who asserts must prove those facts exists. That in this case the Appellant failed woefully to prove her case as it relates to the 1st and 2nd Respondents for her to be entitled to the reliefs sought. It was argued that the Appellant failed to prove her case against the 1st and 2nd Respondents on the balance of probabilities by adducing further evidence at the suit before the Court below to negate the fact that an implied agency relation was created by the 1st and 2nd Respondents, and the 3rd Respondents and thus the only option available to the Court is to consequently dismiss the appeal. On this point, counsel cited the case of OKORKAJA VS. TARABA STATE GOVT (2003) FWLR (PT. 178) PAGE 1036 in support.
The 1st and 2nd Respondents’ Counsel submitted that where a party, as in this case the Appellant alleges fraud, the allegation must be proved beyond reasonable doubt and the burden rests on the Appellant but the Appellant failed to specifically plead the allegations of fraud in the originating process and equally failed to furnish the particulars of fraud and prove the said allegation at the trial Court below. On this point, counsel cited the cases of TRADE BANK PLC VS. PHARMATEK INDUSTRIAL PROJECTS LIMITED (2020) ALL FWLR (PT. 1062) PAGE 584, PAGE 618, PARAS G – H and Section 135 (1) of the Evidence Act, 2011 in support.
On issue two, the 1st and 2nd Respondents’ Counsel argued that after filing the statement of defence at the trial Court, that it contained weighty material evidence thereby shifting the burden to the Appellant but the Appellant failed to rebut same by providing evidence to the contrary throughout the proceedings before the trial Court. On this point, counsel cited Section 136(1) and (2) of the Evidence Act, 2011 and argued that the provisions in the cited Section was well captured by the trial Court in the analysis of the case put before it and contained in its decision at pages 148 and 149 of the Record of Appeal and thus urged the Court not to disturb the judgment of the trial Court below. On this point, counsel cited the case of PULSELINE SERVICES LTD VS. EQUITORIAL TRUST BANK LTD (2010) LPELR – 4886 (CA) PAGES 32 – 33, PARAS B – A in support.
The 1st and 2nd Respondents’ Counsel further argued that on the effect of an agent acting within the scope of his authority for a disclosed principal, the Appellant as per the pleadings and evidence properly analyzed by the Court below, are not in doubt that a supervening event occasioned the further performance of the execution of the contract between the Appellant and the 3rd Respondent which is the misrepresentation by the 3rd Respondent to both the Appellant and the 1st and 2nd Respondents in the course of the transaction leading to the institution of the suit at the trial Court below and that the 3rd Respondent became known at this point and that the Appellant ought to have their names struck out from the proceedings and proceed with the 3rd Respondent s well as against the said Buba Gadzama. On this point counsel cited the case of GLOBAL SOAP & DETERGENT IND. LTD VS. BELLO & ANOR (2011) LPELR – 9092 (CA) (PAGE 13 – 16, PARAS C – A) in support.
The 1st and 2nd Respondents’ Counsel argued further that the Appellant failed to challenge the material pieces of evidence put forth by the 1st and 2nd Respondents in their defence at the trial Court by filing a reply thereto and that this failure was made manifest throughout the proceedings before the trial Court and that the trial Court rightly exercised its primary duty of evaluating the evidence before it and ascribing the factual probative value to it. On this point, counsel cited the cases of WACHUKWU VS. OWUNWANNE (2011) 14 NWLR (PT. 1266) PAGE 1 AT PAGES 36 – 37 PARAS G – C, KOTOYE VS. SARAKI (1993) 5 NWLR (PT. 296) 710 at PAGE 710, PAGE 723 and OYEKUNLE POWER STEPHEN GBENGA VS. ALL PROGRESSIVE CONGRESS (2020) ALL FWLR (PT. 1053) 115 at PAGE 170 PARAS D – G in urging this Court to find the issues raised by the 1st and 2nd Respondents apt for the determination of this appeal and resolve same against the Appellant, uphold the judgment of the trial Court below and consequently dismiss the instant appeal with substantial cost.
The Appellant also filed a reply brief of Argument to the 1st and 2nd Respondents Brief of Argument on the 15th day of June, 2022.
The Appellant’s Counsel argued that the contention of the 1st and 2nd Respondents’ Counsel to the effect that the Appellant did not plead or prove her allegation of fraud against the Respondents before the Court below was not made an issue before the lower Court and neither did the Court make any pronouncement thereon and that it thus amounts to a fresh issue raised without the leave of this Court and same should be discountenanced. It was submitted that even if this Court decide to consider the issue on the merit, the Court should hold that the argument is not only unfounded but misleading as same was specifically pleaded and proved. Counsel then referred to paragraph 22(a) to (h), paragraph 6(a) to (h) of the statement of claim.
The learned Appellant’s Counsel argued further that the 1st and 2nd Respondents’ issue two has nothing to do with any of the grounds of appeal and that same was not an issue before the Court and neither was it pronounced upon by the Court and in so far as they did not file a cross-appeal or a Respondent’s Notice, they are not permitted in law to raise any issue for determination that is completely outside the context of the grounds of appeal filed by the Appellant and that the issues formulated for determination of an appeal must be distilled from any of the grounds of appeal. On this point, counsel cited the case of DANJUMA JIKA VS. BAKO AKUSON (2006) ALL FWLR (PT. 293) 276 AT 285 PARAS B – C in support.
In conclusion, learned Counsel urged this Court to hold that the 1st and 2nd Respondents did not respond to the crucial and fundamental issues raised and canvassed in the Appellant’s amended brief of argument and to allow this appeal.
RESOLUTION OF ISSUES
I have read and summarized the briefs of argument filed by the parties herein. I shall now proceed to determine the appeal and in doing so, I shall adopt the issues for determination formulated by the Appellant which in my opinion, will deal with all the issues that have arisen in the instant appeal. However, before delving into the resolution of the appeal, I shall first determine some issues raised by the Appellant in her reply brief.
RESOLUTION OF THE ISSUES RAISED IN THE APPELLANT’S REPLY BRIEF OF ARGUMENT
The Appellant’s Counsel has argued that the issue 2 for determination as formulated by the 1st and 2nd Respondents in their Brief of Argument and which their counsel devoted paragraphs 3.5 – 3.7 of the Respondent’s Brief of Argument at pages 7 and 15 to argue, is not in any way supported by any of the Appellant’s grounds of appeal as contained in the Amended Appellant’s Notice of Appeal.
In other to prevent this type of arguments cropping up, that it is important for parties to indicate what ground(s) of appeal the issues for determination raised by them are being distilled from. It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. See the cases of ABE VS. UNIVERSITY OF ILORIN (2013) 6 NWLR (PT. 1319) PAGE 183 AT 205 PARAGRAPH D – G and HONIKA SAWMILL (NIG.) LTD VS. MARY OKEJIE (1994) 2 NWLR (PT. 326) 252 AT 262. However, not tying the issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. In the case of UBN LTD VS. ODUSOTE BOOK STORES LTD (1995) NWLR (PT. 421) AT 563, it was held that:
“While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that, that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.”
From the above, it is crystal clear that the rules do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also the cases of NIGERIAN PORTS PLC VS. B. P. PTE LTD (2012) 18 NWLR (PT. 454) AT 480 and HANSEATIC INTERNATIONAL LTD VS. USANG 2002 13 NWLR (PT. 784) AT 401 – 402.
The failure to so indicate in the 1st and 2nd Respondents Brief of Argument, has now placed on this Court an additional duty to, including its numerous duties, scrutinize the Amended Notice of Appeal to be able to ascertain whether the said issue two raised and argued by the 1st and 2nd Respondents’ Counsel was distilled from the grounds of appeal.
Looking at the Amended Notice of Appeal and the 11 (eleven) grounds contained therein, it is clear that issue two raised by the 1st and 2nd Respondents was distilled from grounds 4, 5, 6, 7, 8 and 9 of the Amended Notice of Appeal and this is also within the ambit of the law as it is trite that while one issue may be distilled from more than one ground of appeal, not more than one issue shall be formulated from a ground of appeal and thus the argument of the Appellant’s Counsel as contained in the Appellant’s reply brief of argument shall be disregarded. The issue two raised by the 1st and 2nd Respondents to my mind, is valid.
I will now go on to determine the merits of this appeal and as I have already indicated, I will adopt the issue for determination formulated by the Appellant herein as a determination of same in my opinion, will adequately address all the issues that have arisen in this appeal, and I shall proceed to consider them together.
RESOLUTION OF THE APPEAL
I will first like to put to rest the contention of the 1st and 2nd Respondents’ Counsel that the Appellant’s Counsel failed to specifically plead the allegation of fraud in all the reliefs sought by the Appellant in the originating processes before the trial Court. This Court is empowered to look at its record, and in looking at the record of appeal before me, it is quite clear that the Appellant in the statement of claim at the trial Court, specifically pleaded the particulars of fraud against the Appellant as contained at paragraph 22 sub-paragraphs a – h. Therefore, the argument of the 1st and 2nd Respondents in this regard is misconceived.
The learned Appellant’s Counsel has argued that the 3rd Respondent did not file any defence to the Appellant’s claim against her and neither did she lead any oral or documentary evidence in rebuttal of the Appellant’s evidence in support of her claims against her. It was further argued that the trial Court ought to have accepted, relied and acted on the unchallenged and uncontroverted evidence of the Appellant that was given against the 3rd Respondent. This submission of the Appellant is however, not the position of the law as it is the law that he who asserts must prove. See Section 131(1) and (2) of the Evidence Act, 2011. That the 3rd Respondent failed to file a defence does not absolve the Appellant of the burden to prove her case and neither does it automatically entitle her to judgment in her favour.
The Appellants’ case still needs to be considered on the merit in order for the Court to adequately decide whether the Appellant is entitled to the relief claimed as per the statement of claim and the evidence before it. It is only after the Court has found that there is sufficient evidence in support of the claim that it can give judgment in favour of a Plaintiff due to the absence of a defence or challenge to the available credible evidence.
This was exactly what the trial Court did as clearly seen at pages 144 – 147 of the Record of Appeal. Thus, the question that will now be left is whether the evidence of the Appellant in support of her case was sufficient enough to warrant the grant of her reliefs sought against the 3rd Respondent, and I so hold.
The Appellant’s Counsel has argued that the findings of the trial Court as contained in pages 145 – 146 of the Record of Appeal were reached by the Court solely for the purpose of making a case for the 3rd Respondent. It was further argued that the trial Court was wrong to have held that since the only role played by the 3rd Respondent in the failed transaction is the impersonation of Group Captain Alice Mshelia, the said role can only give rise to criminal responsibility.
From the evidence of the Appellant contained in the statement of claim at pages 24 and 25, it is clear that they wrote a petition against the 1st and 2nd Respondents to the State Security Service and it was in the course of their investigation that it was discovered that the 3rd Respondent was the one posing as Group Captain Alice Mshelia (the land owner) and who spoke on the phone with the Appellant’s lawyer and has a case before the Magistrate Court, Kakuri, Kaduna.
The 1st and 2nd Respondents in their statement of defence as contained in paragraph 5 also confirmed that the 3rd Respondent impersonated the said land owner. By paragraph 5(c) and paragraph 7 of the statement of defence, the 1st and 2nd Respondents gave evidence that one Peter Joseph gave them the 3rd Respondent’s telephone numbers representing them to be that of Group Captain Alice Mshelia of the Nigerian Air Force and that the 1st Respondent spoke to her via telephone conversation where she agreed to authorize someone in writing to receive the money for the plot of land on her behalf and that the same person will deliver the original title documents to the Appellant. It is clear from both the statement of claim and the statement of defence that one Mr. Gadzama Buba presented a Letter of Authority purportedly prepared by the Group Captain Alice Mshelia and he was paid the agreed consideration for the land in question by the Appellant.
The DW1 gave evidence that at a point during his investigation, he met Group Captain Mshelia at Television Village, Kaduna close to her house. DW1 also gave evidence in his written deposition that the 3rd Respondent confessed that she impersonated as Group Captain Alice Mshelia when she spoke to the 1st and 2nd Respondents. The Exhibit D1 (FIR) report of which the 3rd Respondent’s name appeared as number two was tendered through DW3 and admitted by the Court in evidence to show that the 3rd Respondent has been charged to Court.
The above pieces of evidence all point to the fact that the 3rd Respondent impersonated the Group Captain Alice Mshelia (the land owner). From the evidence of DW1, it is clear that the Group Captain Alice Mshelia was at the time of investigation a living person and even the search conducted on the land shows that the land owner is the same Group Captain Alice Mshelia. The evidence available to me through the Record of Appeal shows Group Captain Alice Mshelia as the land owner who is said to have been impersonated by the 3rd Respondent and who signed the purported authority for Mr. Buba Gadzama to receive the consideration for the land.
If as per the evidence before me, the Appellant gave consideration for a land purportedly belonging to Group Captain Alice Mshelia through Mr. Buba Gadzama, then both of them are necessary parties in the determination of the case against the 3rd Respondent.
I do not agree less with the findings and decision of the trial Court in this regard and even though both civil and criminal trial can be commenced against a party, there is no other concrete evidence before the Court apart from the fact that the 3rd Respondent misrepresented herself to be the Group Captain Alice Mshelia and has been charged for this misrepresentation in a criminal matter. There is also no evidence that she received money from the Appellant but one Mr. Buba Gadzama who is not a party in this case. Flowing from my findings above, I hold the view that the Appellant was not able to discharge the onus placed on her to prove her claim against the 3rd Respondent. At this juncture, I hold that the trial Court did not resort to speculations but on the evidence before it and was right to have held that the Appellant could not prove her claim against the 3rd Respondent and that the role played by the 3rd Respondent can only give rise to criminal liability.
The Appellant’s Counsel has also argued that the trial Court, in deciding whether the 1st and 2nd Respondents are liable to pay damages the Court should have considered whether or not the 1st and 2nd Respondents actually had the authority or consent of the true and actual owner of the land, Group Captain Alice Mshelia, whether there was no agency relationship between the 1st and 2nd Respondent and the Appellant and whether there was no evidence before the Court to show or prove that the 1st and 2nd Respondents conspired or connived with Buba Gadzama to collect money from the Appellant on behalf of Group Captain Alice Mshelia.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
From the statement of claim, the trend of events was that one Mr. Mohammed Nadabo an estate agent, showed the plot of land in question to the Appellant and told her that the owner has put up same for sale through the 1st and 2nd Respondents. After search was conducted by the Appellant’s solicitor, the Appellant then instructed Mohammed Nadabo to invite the agent of the owner of the land. It was thereafter that the 1st and 2nd Respondents who are from the same agency firm came for a meeting to meet with the Appellant and the Appellant was informed that the original title documents were with the land owner, Group Captain Alice Mshelia.
The 1st Respondent made calls with the purported Group Captain Alice Mshelia in the presence of the Appellant and her solicitor who also had a conversation with her and wherein she gave authority to Mr. Gazama Buba to act on behalf of the Group Captain Alice Mshelia to collect and he collected the consideration sum of N2,200,000 from the Appellant for the land and that the Appellant also paid the sum of N41,000 as ground rent in respect of the property.
The 1st and 2nd Respondents as per their statement of defence, also stated that it was one Peter Joseph who brought a copy of some documents to them purporting to be Group Captain Alice Mshelia’s title document to the land in question and also gave them the telephone numbers of the 3rd Respondent purporting to be that of the said Group Captain Alice Mshelia. The 1st and 2nd Respondents also gave evidence that they started acting on the erroneous belief that they were acting for the said Group Captain Alice Mshelia and upon discovering that the sales transaction was fake, they lodged a complaint through the 2nd Respondent and the said Peter Joseph and one Adamu Babayaro were arrested and it was discovered that the 3rd Respondent was the one impersonating the Group Captain Alice Mshelia.
During cross-examination, DW3 and DW4 gave evidence that they were paid a commission which is 10% of the total consideration sum. The DW3 gave evidence that he was an agent of the seller but acted to introduce the Appellant to the property while the DW4 gave evidence that he acted as agent to the seller. These statements were also reiterated in the evidences at the trial.
From the evidence before this Court, it is clear that the 1st and 2nd Respondents had not met with the Group Captain Alice Mishelia and they were only acting with regard to the sale of the land which brief was brought to them by the said Peter Joseph and they acted based on the erroneous belief that they were acting on behalf of the said land owner which turned out to be a farce. This evidence was not challenged by the Appellant at the trial Court. It is also observed from all the pieces of evidence that the 1st and 2nd Respondents did not act for the Appellant but Mohammed Nadabo who was instructed to invite the 1st Respondent for a meeting with the Appellant and who came along with his colleague, the 2nd Respondent and everything was going on fine before they discovered that the land owner was misrepresented by the 3rd Respondent and Gadzama Buba who received the full consideration for the land.
Even though it is clear from the record of appeal before this Court that the participation of the 1st and 2nd Respondents in the whole transaction was to introduce the Appellant to the property and collect their commission, however, just as the Appellant had argued, the 1st and 2nd Respondents owed a duty of care to the Appellant in the sense that they should have investigated to find out the true owner of the property. At least if that investigation was done, the issues herein would not have cropped up but it still does not change the evidence before this Court which shows that the Appellant paid consideration for the land to Gadzama Buba who is not even a party to the case and just as I have observed earlier in this judgment, joining the said land owner whom the search by the Appellant and her solicitor revealed to be the true owner of the land as a necessary party would have been helpful. Thus, at this point, I cannot but say that the 1st and 2nd Respondents are not liable to pay damages because they only acted in a capacity of introducing the Appellant to the property. There was no agency relationship between the 1st and 2nd Respondents and the Appellant and there was no evidence before this Court to show or prove that the 1st and 2nd Respondents conspired or connived with Buba Gadzama to collect money from the Appellant on behalf of Group Captain Alice Mshelia.
By my findings, the 1st and 2nd Respondents has a fraction of the blame arising only from their failure to exercise a duty of care in the transaction and thus must refund the commission paid to them being 10% of the consideration of the total sum paid for the land and nothing more just as the trial Court held.
In the circumstances, I do not see any reason to disturb the decision of the trial Court below as I find no merit in this appeal and same is therefore hereby dismissed.
AMINA AUDI WAMBAI, J.C.A.: I agree.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
N. C. Oshe, Esq, For Appellant(s)
E. N. Ogbu, Esq, – for 1st and 2nd Respondents
A. A. Salisu, Esq, – for 3rd Respondent For Respondent(s)