AL-BABELLO TRADING CO. LTD v. BAMAIYI & ORS
(2020)LCN/14369(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Tuesday, June 16, 2020
CA/K/611/2017
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
AL-BABELLO TRADING COMPANY LIMITED APPELANT(S)
And
1. HAUWA BAMAIYI (MRS) 2. MRS PHIBI BAMAIYI 3. SULAIMAN MACHIKA RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS NECESSARY TO FILE A REPLY FOR THE PURPOSE OF DENYING ALLEGATIONS MADE IN A STATEMENT OF DEFENCE
It is true that it is not necessary to file a Reply for the purpose of denying allegations made in a Statement of Defence since issues can be joined by the filing of a Statement of Claim and a Statement of Defence. But the position of the Respondent is not about a failure to file a Reply to a Statement of Defence, rather, it is about a failure to file a Reply or Defence to a counterclaim. Where a plaintiff fails to file a reply or defense to a counterclaim the Court is entitled to assume that the plaintiff has no defence to the counterclaim and may enter judgment for the defendant accordingly. See USMAN V. GARKE (2003) LPELR-3431 (SC). PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT A COUNTERCLAIM WILL SUCCEED IF THE DEFENDANT DOES NOT ESTABLISH THE COUNTERCLAIM
However, a counterclaim will not succeed if the defendant did not establish the counterclaim. See USMAN V. GARKE (supra). Indeed it is the law, and it is long been settled, that the onus lies on the plaintiff, and this of course must include a claimant in a counterclaim, to satisfy the Court that he is entitled on the evidence brought by him, to a declaration of title. In this regard, the plaintiff or a claimant must rely on the strength of his own case and not on the weakness of the defendant’s case. See KODILINYE V. MBANEFO ODU 2 WACA 336 at 337; FREMPONG V. BREMPONG 14 WACA 13; UCHENDU V. OGBONI (1999) 4 KLR (P. 80) p. 715 at 744. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
It is the law that an appellate Court can re-evaluate evidence and come to an independent decision from the trial Court where the trial Court has erred in evaluating the facts found by it. See ALI V. STATE (2015) LPELR-24711 (SC). In ANYEGWU & ANOR V. ONUCHE (2009) LPELR-521 (SC) the Supreme Court stated that the Appeal Court can conveniently embark on re- evaluation where (a) the trial Court’s evaluation of the evidence is clearly perverse; (b) the trial Court drew wrong inferences from the totality of the evidence; and (c) the trial Court applied wrong principles of law to accepted facts in the case. I find that the evaluation of Exhibit 3 by the lower Court is perverse. I also find that the lower Court drew wrong conclusions from the mere fact that a copy of the Certificate of Occupancy relating to the land tendered by the respondents (Exhibit 5) was among the documents left behind by the late General Musa Bamaiyi. It is clear to me that the evidence before the lower Court shows that the late General Bamaiyi divested himself of ownership of the land. A person cannot be allowed to claim a declaration of title to land which he has divested himself of ownership through sale of the property. See SANYAOLU V. COKER (1983) 1 SCNLR p.168 at p. 169. PER DANIEL-KALIO, J.C.A.
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here challenges the judgment of the Kaduna State High Court delivered on 26/10/ 2017 in respect of a land dispute. The Appellant AL-BABELLO TRADING COMPANY LTD as the Plaintiff sued HAUWA BAMAIYI (MRS), MRS PHIBI BAMAIYI and SULAIMAN MACHIKA as defendants over the ownership of the land situate at Gwargwaje along the Kaduna-Zaria Road formerly known as Kaura Motors land, covered by a Zaria Local Government Certificate of Occupancy No. ZAR/0258 dated 22/01/1986. The case of the Appellant is that it bought the land from one Alhaji Abdulkadir Abdulwahab by a customary sales agreement for a consideration of N32 million in March 2016. The said Alhaji Abdulwahab acquired the land from one Dr. Na’ Allah Isa Mayana in July 2015 also through a customary sale. Dr. Na’ Allah Isa Mayana himself, acquired it by an oral customary sale agreement from the National Union of Teachers also referred to as NUT END WELL or one Mu’azu Lawal Abdullahi. The National Union of Teachers or Mu’azu Lawal Abdullahi acquired the land from the late General Musa Bamaiyi for N2million. A receipt
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evidencing the transaction with the late General Musa Bamaiyi dated 21/02/2001 was issued in the name of a company called Mushabida Agricultural Ventures. The appellant’s case also was that the land originally belonged to one Alhaji Ishaka Abdullahi who deforested it. The said Alhaji Abdullahi sold it to Kaura Motors through its Managing Director one Alhaji Mahmud Sambo. The respondents on their part in their amended Statement of Defence and counterclaim claimed that the land belonged to the late General Musa Bamaiyi, the father of the 1st and 2nd respondents and that the late General never sold the land to anyone. The late General, according to the respondents, bought the land from Kaura Motors. With the demise of the General, the land now belongs to his heirs. In their counterclaim, the respondents sought inter-alia, a declaration that they and other heirs of the late General Bamaiyi are the true and legal owners of the disputed land. After hearing the parties and considering the evidence before him, the learned trial judge B. F Zubairu J, in his judgment, made the following finding at p. 176 of the Record of Appeal-
“A crucial examination of Exhibit 3
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heavily relied on by the plaintiff evidencing the sale between the defendants’ father and Mu’azu Lawal Abdullahi can be described as a piece of worthless paper for the fact that the said Exhibit has no bearing whatsoever with the late General Musa Bamaiyi since the plaintiff has not shown the Court that the late General Musa Bamaiyi bought the land for and on behalf of MUSHABIDA AGRICULTURAL VENTURES. The said receipt has not been signed by the late General Musa Bamaiyi nor his name appear (sic) on the receipt. The position of the law is any document not signed, its authenticity is in doubt. See the case of GARBA AIKI VS. GABRIEL IDOWU (2006) ALL FWLR ( pt 293) 361.”
In his judgment at p.176-177 of the Record of Appeal, the learned trial judge found that even if the late General Musa Bamaiyi entered into a customary sale agreement with Mu’azu Lawal Abdullahi as purportedly evidenced by Exhibit 3, the prerequisites of a valid sale of land under customary law were not satisfied. He therefore, held that the Appellant did not discharge the burden of proof to establish that the land in dispute belongs to it. The learned trial judge found that the Appellant
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did not counter or challenge the counterclaim of the respondents and held that the lack of challenge amounted to an admission. He found that the respondents are in possession of the certificate of occupancy of the land and held that they are presumed to be in possession of the land. He further held that the respondents discharged the burden of proof on them to establish their ownership of the land. He therefore held that they had proved their counterclaim. Consequently, he granted their counterclaim and dismissed the case of the Appellant.
Dissatisfied, the appellant filed a Notice of Appeal in which it challenged the judgment on seven grounds. The grounds of the challenge and the particulars of the grounds, are as follows-
GROUND 1
The whole judgment of the Hon. Learned trial judge is against the weight of evidence.
GROUND 2
The Hon. Learned trial judge erred in law when her Lordship held that:
“A critical examination of Exhibit 3 heavily relied upon by the Plaintiff evidencing the sale between the defendant’s father and Mu’azu Lawal Abdullahi can be described as piece of worthless paper for the fact that the said Exhibit
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has no bearing whatsoever with the late General Musa Bamaiyi since the plaintiff has not shown the Court that the late General Musa Bamaiyi bought the land for and on behalf of the said MUSHABIDA AGRICULTURAL VENTURES. The said receipt has not been signed by the late General Musa Bamaiyi nor his name appears on the receipt. The position of the law is any document not signed; its authenticity is in doubt. See the case of GARBA AIKI VS GABRIEL IDOWU (2006) ALL FWLR (pt 293) 361.”
“In the case of OMEGA BANK NIGERIA PLC VS O.B.C. LTD. (2005) ALL FWLR (pt 249) where a document is not signed it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no efficacy in law. It is a worthless document. Exhibit 3 amounts to a worthless piece of paper in this case.”
GROUND 3
The Hon. Learned trial judge erred in law when her Lordship suo motu raised the issue of compliance with the requisites of a valid sale of land under customary law and based her judgment thereon without inviting counsel to the parties to address her in the following
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words (sic):
“Assuming there was a customary sale between the defendants father and Ma’azu Lawal Abdullahi as purportedly evidenced by Exhibit 3, then the question that readily comes to mind is whether the purported customary sale complied with the pre-requisites of a valid sale of land under customary law to be established by the claimant thus-
(1) Payment of money or agreed consideration
(2) That the transaction was witnessed by witnesses
(3) That the actual handing over of the land was in the presence of the said witnesses.”
GROUND 4
The Hon. Learned trial judge erred in law when having made a profound finding of fact to the effect that “PW2 though witnessed the transaction”, made a somersault in holding that the Plaintiff (now Appellant) had failed to prove that late General Musa Bamaiyi issued Exhibit 3
GROUND 5
The Hon. Learned trial judge erred in law and this has occasioned a miscarriage of justice, when her Lordship held:
“The defendants are in possession of the Certificate of Occupancy in respect of the said land in dispute as well as in possession of the land. By virtue of Section 143 of the Evidence Act
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one in possession is presumed the owner and the person claiming he is the owner not the one in possession the burden lies with the claimant (sic). See LAGURO VS TOKU (1992) 2 SCNJ 201.”
GROUND 6
The Hon. Learned trial judge erred in law in failing to evaluate the Certificate of Occupancy (Exhibit 1) tendered by the Plaintiff which had a legal seal vis-a-vis the one tendered by the Defence which had no legal seal of the issuing authority.
GROUND 7
The Hon. Learned trial judge erred in giving judgment to the defendants/counterclaimants.
The appellant filed an Appellant’s Brief as well as an Appellant’s Reply Brief in response to the Respondent’s Brief of Argument. The Appellant’s Brief and Reply Brief were settled by Yunus Ustaz Usman, SAN. The respondents’ Brief was settled by Festus Okoye, Esq. The following six issues were distilled by the Appellant’s learned Senior Counsel from the seven grounds of appeal-
1. Whether the lower Court was right in law in its holding that Exhibit 3 (official receipt of purchase) was not signed and issued by late General Bamaiyi. (Distilled from Ground 2 of the Grounds of Appeal)
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- Whether the lower Court was right to have held that the Respondents were in possession of the land (subject matter in dispute) having regard to the evidence adduced (Distilled from Ground 5 of the Grounds of Appeal)
3. Whether the lower Court was right in law to have raised the issue of pre-requisites of sale under Customary Law suo motu without first and foremost affording parties an opportunity to address the Court on the issue. (Distilled from Ground 3 of the Grounds of Appeal)
4. Whether the lower Court was right in law to have held that PW2 though witnessed the sale transaction between General Musa Bamaiyi and Alhaji Muazu Lawal Abdullahi, did not witness the actual handing over of the land. (Distilled from Ground 4 of the Grounds of Appeal)
5. Whether the Respondents’ claim as in their prayer No.1 identified the land with certainty for the Honourable trial Court to have validly granted the declaratory relief sought. (Distilled from Ground 7 of the Grounds of Appeal)
6. Whether the lower Court rightly evaluated the pieces of evidence adduced by both parties (Distilled from Ground 1 of the Grounds of Appeal)
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The respondents’ learned counsel on his part, couched the issues to be determined in this appeal as follows-
1. Whether the lower Court was right in dismissing the claim of the Appellant founded on customary sales and holding that the Plaintiff/Appellant had not discharged the burden placed on them by law. (Distilled from Grounds 1, 2, and 4 of the Grounds of Appeal)
2. Whether the learned trial judge was right in holding that the Appellant had not established and complied with the prerequisites of a customary sale of land under customary law (Ground 3 of the Grounds of Appeal)
3. Whether the lower Court was right in entering judgment in favor of the respondents on the counterclaim (Grounds 5 and 7 of the Grounds of Appeal).
The issues distilled by the Appellant’s Senior Counsel are very specific and clear. They will be the reference issues in determining this appeal. The issues formulated by the Respondents’ learned Counsel have ample accommodation in the issues formulated by the Appellant. Before I proceed to consider the issues, I note, and this was pointed out by the Respondents’ learned Counsel, that no issue was formulated from
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ground 6 of the Grounds of Appellant. The implication of this is that Ground 6 has no value whatsoever to the appeal. It is very much like a needless appendage. Ground 6 is therefore struck out.
Yunus Ustaz Usman, SAN for the Appellant, argued issues 1 and 2 together. Those issues have to do with how the lower Court treated Exhibit 3 and whether that Court was right to have held that the Respondents were in possession of the disputed land.
With regard to Exhibit 3, the learned SAN referred to the finding of the lower Court at page 176 of the Record of Appeal and submitted that the finding is perverse as same is contrary to the evidence led. He referred in particular to the evidence of PW2 under cross-examination, which evidence he quoted inextenso. The Learned Senior Counsel contended that Exhibit 3 described by the lower Court as a worthless piece of paper, is actually a receipt issued by the late General Musa Bamaiyi in his own handwriting on his business name letterhead as affirmed by DW2. He referred to the evidence of DW 2 under cross-examination at page 168 of the Record of Appeal. It was submitted that a business name is not different from
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the owner of the business name. It was further submitted that a receipt written on the letterhead of another person or company, which at any rate is not the case here, only binds the writer or issuer of such a receipt. It was submitted that in view of the evidence of PW2, an eye witness, whose evidence under cross-examination at page 166-167 of the Record of Appeal states that the late General Musa Bamaiyi wrote the receipt on his business name letterhead (Mushbida Agricultural Ventures) the Lower Court was wrong to have held that the receipt (Exhibit 3) was not written by the late General. It was submitted that the finding of the lower Court with regard to Exhibit 3 did not also take into account the evidence of PW 2 at page 57 of the Record of Appeal. It was submitted that where a trial Court fails to rely on evidence before it to make findings that are inconsistent with the evidence, such findings are perverse.
With regard to the findings of the lower Court at page 177 of the Record of Appeal that the Respondents are in possession of the disputed land, it was submitted that the Respondents are not in possession of the land, never claimed to be in
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possession of it, and led no evidence to show possession. The learned Senior Counsel referred to the 3rd relief sought by the respondents in their counterclaim reproduced in the Judgment of the lower Court at page 174 of the Record of Appeal. It was submitted that the finding of the lower Court that the respondents are in possession, is perverse. On a perverse finding, the learned SAN referred to the case of EDOHO V. STATE (2004) 5 NWLR (pt. 865) p.17.
In his argument in response, Festus Okoye, Esq. submitted that the Appellant did not discharge the burden of proof placed on it by law and merely invited the lower Court to resolve its confusion and speculation which the lower Court rightly declined to do. It was submitted that the Appellant made a lot of unnecessary sound and fury over Exhibit 3. It was contended that the Appellant pleaded in paragraph 6 of its Amended Statement of Claim that NUT ENDWELL and/or Alhaji Lawal Abdullahi acquired their interest and/or title over the land in dispute from the late General Musa Bamaiyi for the sum of N2million and that the money was paid to the late General who issued NUT ENDWELL with a receipt for the payment. He
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referred to page 46 and page 76 of the Record of Appeal. It was submitted that a purported Deed of Assignment mentioned in Exhibit 2 was not tendered. It was urged on us that the Deed of Assignment mentioned in the said Exhibit 2 if produced, would not have been in the Appellant’s favor. Learned counsel argued that there is no nexus between Exhibit 2 and Exhibit 3. Submitting further, the Respondents’ learned Counsel contended that the Appellant cannot assert in its Brief that MUSHABIDA TRADING VENTURES is a business name as issues were not joined on that. It was further contended that the Appellant never explained the legal status of that Company to the lower Court and also never explained to that Court how MUSHABIDA TRADING VENTURES issued a receipt for land it did not own. Learned Counsel contended that the lower Court was right to have described Exhibit 3 as a worthless piece of paper. Submitting further, the Respondents’ learned Counsel contended that Exhibit 3 is a photocopy of a receipt allegedly issued by the late General Musa Bamaiyi. The said Exhibit 3 he submitted, has no nexus with the late General Musa Bamaiyi as it does not bear his name as the
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seller of the piece or parcel of land. The said Exhibit 3 he further submitted, was not signed by the late General and was not signed even by Alhaji Muazu Lawal Abdullahi, the person alleged to have been conferred with the right of ownership. He further contended that the Exhibit also has no nexus with NUT ENDWELL. The respondents’ learned Counsel submitted that the Appellant did not appeal against the finding of the lower Court that there is a world of difference between NUT ENDWELL and Alhaji Mu’azu Lawal Abdullahi. Failure to appeal against the finding, it was submitted is fatal to the case of the Appellant. Referring to the case of OGUNYADE VS. OSHUNKEYE (2007) 11 NWLR (PART 1057) p.218 at 257, it was submitted that any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and that the said point remains valid and binding on the parties.
The Appellant’s Senior Counsel, in the Appellant’s Reply Brief, responded to the argument of the Respondents learned Counsel that the Appellant was not sure whether the root of title was acquired from the National Union of Teachers (NUT) END WELL or from
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Alhaji Muazu Lawal Abdullahi. The learned Senior Advocate of Nigeria submitted that the phrase “and or” used in the Appellant’s amended Statement of Claim is devoid of any ambiguity as it connotes an interpretation that is either conjunctive or disjunctive. He referred to a book by S. Imhanobe titled Understanding Legal Drafting and Conveyance, published in 2002, at p.20. At any rate, it was submitted that the issue raised by the Respondents can only be raised if they filed a Cross-Appeal or a Respondents’ Notice.
Now with respect to Exhibit 3, the view of the learned trial judge is that it is a worthless piece of paper. The reasons given by the learned trial judge for coming to that conclusion in summary are (1) Exhibit 3 has no bearing whatsoever with late General Musa Bamaiyi since the Plaintiff (Appellant) did not show the Court that the late General bought the land for or on behalf of MUSHABIDA AGRICULTURAL VENTURES; and (2) Exhibit 3 was not signed by the late General Musa Bamaiyi nor did his name appear in the receipt. Now, it is non sequitur that because it is not shown that the late General Musa Bamaiyi did not buy the land for or on behalf of
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MUSHABIDA AGRICULTURAL VENTURES then Exhibit 3 has no bearing with him. What should have concerned the lower Court is whether the late General Musa Bamaiyi had any connection with MUSHABIDA AGRICULTURAL VENTURES. It is the case of the Appellant that he did. They pleaded in paragraph 6 of the Amended Statement of Claim that the late General issued “receipt of payment No. 0839 dated 21st February, 2001 in the name of his company Mushabida Agricultural Ventures”. Evidence was led in support of the Appellant’s pleading on the connection between the late General Musa Bamaiyi and MUSHABIDA AGRICULTURAL VENTURES by PW2 who stated in his Witness Statement on Oath at p.57 of the Record of Appeal, that MUSHABIDA AGRICULTURAL VENTURES is a company owned by the late General. DW2 confirmed under cross examination at page 168 of the Record of Appeal that “on Exhibit 3 MUSHABIDA AGR VEN belongs to Gen. M. Bamaiyi”. It is therefore a perverse conclusion to hold that Exhibit 3 is a worthless piece of paper in that it has no bearing whatsoever with the late General Musa Bamaiyi. With regard to the holding that the said Exhibit 3 is a worthless piece of paper because it was
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not signed by the late General and that his name did not appear in it, the learned trial judge was wrong to have come to that conclusion. Exhibit 3 has a writing and a signature on it. It is a receipt issued on the letterhead of MUSHABIDA AGRICULTURAL VENTURE which DW2 said under cross-examination belongs to the late General Bamaiyi. It states that the sum of two million naira only was received from Alhaji Muazu Lawal Abdullahi. It also has the following remarks written in long hand “being payment for plot/land at Gwargwaje C of O ZAR/A/0258 dated 22-1-86. Full payment for the plot has been received”. All the evidence therefore show that the late General signed Exhibit 3. Surely, the Appellant had discharged the onus placed on it to show that the late General sold the land. On a shifting burden of proof, it is for the respondents to challenge the signature in the receipt, Exhibit 3 by producing evidence to show that the signature in the Exhibit is not that of the late General Musa Bamaiyi. The first and second respondents being the children of the late General as they stated in paragraph 4 of their counterclaim at page 98 of the Record of Appeal, must be
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familiar with his signature. They should have challenged the signature by producing documents in their possession which bear the signature of the late General. After all, they pleaded in the counterclaim that they were in possession of the file in which the late general kept records of his landed assets whether sold or not. They specifically pleaded so in paragraph 14 of the counterclaim. That the respondents did not tender any document that contained the signature of the late Gen. Bamaiyi, raised a presumption under Section 167 (d) of the Evidence Act. The Section states that evidence which could be and not produced, would if produced, be unfavorable to the person who withholds it. Exhibit 3 was not controverted. Evidence which is not challenged or controverted and is supported by the pleadings and which by its nature is not incredible, leaves the trial judge with no option but to accept and act on it. See OGUNDIPE & ANOR V. A. G OF KWARA STATE (1993) 8 NWLR Part 313 p. 558 at p. 568. The lower Court ought to have acted on Exhibit 3 and should not have dismissed it as a worthless piece of paper. That finding was perverse. It is the law that perverse
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findings cannot sustain a judgment. See JOLAYEMI & ORS V. OLAOYE & ANOR (2004) LPELR-1625 (SC); FASHANU V. ADEKOYA (1974) 6 SC 83 at 71; OKO V. NTUKIDEM (1993) 2 NWLR (Pt.274) 124 at 135. Issues 1 and 2 are resolved in the Appellant’s favor.
Issue 3 as will be recalled, is whether the lower Court was right in law to have raised the issue of prerequisite of sale under Customary Law suo motu without first and foremost affording parties an opportunity to address the Court on the issue. On this issue, the Appellant’s learned Senior Counsel submitted that it is settled law that a Court shall not raise an issue suo motu and resolve it without hearing from the parties or affording them an opportunity to be heard. It was contended that the lower Court on its own volition raised the issue of non compliance with the prerequisites of a valid sale under customary law and resolved same against the Appellant. It was submitted that by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Appellant ought to have been heard or given a reasonable opportunity to be heard before a decision affecting its civil rights or
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obligations is taken. The case of CHARLES ODEDO V. PDP (2015) 63 NSCQR 388 at 429-430 was cited in support.
In his argument in response, the respondents’ learned Counsel submitted that the Appellant pleaded customary sale in paragraphs 4, 7, 8 and 18 of its amended statement of claim. He also referred to the evidence of PW1 that the transaction between Dr. Mayana, Alhaji Abdulkadir and the appellant is one of customary sale of land evidenced by receipts of payment. He contended that having regard to the pleadings and evidence led, the lower Court was right in coming to the conclusion that the Appellant failed to prove customary sale of land. He further submitted that the lower Court was right when it held that assuming that there was a customary sale, such sale did not satisfy the prerequisites of a customary sale of land. It was contended that it will amount to legal sophistry to claim that the lower Court did not afford the appellant a hearing on the issue.
In his argument in reply on this issue for the Appellant, the Learned Senior Advocate submitted that there is a world of difference between customary sale simpliciter and compliance with the
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essential requirements of customary sale. Assuming without conceding that that the lower Court was right in the consideration and resolution of essential ingredients of a valid sale of land under customary law, it was submitted that the lower Court was wrong in its finding that the sale never complied with the requirements of sale of land under customary law as the sale complied with the prerequisites of such a sale of land.
Issue 3 is strictly about a complaint that the lower Court raised the issue of the prerequisites of the sale of land under customary law suo motu.
The pronouncement of the lower Court complained about is at page 176177 It reads:
“Assuming there was a customary sale between the defendants’ father and Mu’azu Lawal Abdullahi as purportedly evidenced by Exhibit 3 then the question that readily comes to mind is whether the purported customary sale complied with the prerequisites of a valid sale of land under customary law to be established by the claimants…”
Now a judge is said to have raised an issue suo motu when the issue is raised by him on his own motion, or he raises an issue not in the contemplation of the
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parties, or he has raised an issue not before the Court. See GBAGBARIGHA V. TORUEMI (2013) 6 NWLR (Pt 1350) 289- 310. An issue raised by the judge’s own motion can be a specific question raised by him out of the genus of issues before the Court. It is clear to me that the learned trial judge raised the issue of non-compliance with the prerequisites of a valid sale of land under customary law on his own motion. This is clear from the words of the trial judge in introducing the issue where he said “the question that readily comes to mind is whether the purported customary sale complied with the prerequisites of a valid sale of land under customary law”. When that question came to the mind of the learned judge, he wasted no time in answering it. Now, it matters not that his answer to the question is correct and unimpeachable. That is not the point. He ought to have given the parties a chance to try and answer the question he has posed on his own motion before deciding on it. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. See GBAGBARIGHA V. TORUEMI (supra). There
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are exceptions to this procedure but they do not concern us here. The appellant is right that the learned judge raised the issue suo motu thereby depriving it of being heard or having an opportunity to be heard on the issue. Issue 3 is also resolved in the Appellant’s favor.
Issue 4 if I may recap, is whether the lower Court was right in law to have held that PW2 though witnessed the sale transaction between General Musa Bamaiyi and Alhaji Lawal Abdullahi, did not witness the actual handing over of the land. On this issue, the learned SAN argued on behalf of the appellant that PW2 did in fact state in paragraph 7 of his witness deposition at p. 177 of the Record of Appeal that in his presence the original title deeds to the land were handed over to the purchaser. He cited the decision of the Supreme Court in E.F.P CO. LTD V. NDIC (2007) 7 NWLR (PT. 1039) 216 at 741 where he quoted the Supreme Court as having held that the payment of the purchase price by a party for a property automatically confers a right on the party which right is enforceable unless otherwise determined. He also cited a decision of this Court in the case of ADEPATE V. BABATUNDE (2007)
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4 NWLR Pt. 756 p. 99 at p. 117-118 in which he quoted this Court as having held that a purchase of land can be proved by a purchase receipt or by an agreement of sale or by any fact that shows that such a transaction took place.
The respondents’ learned Counsel other than submitting that the lower Court was right in coming to the conclusion that the Appellant failed to prove its case of customary sale of the land, did not directly address issue 4. Now, the learned trial judge held, having raised the issue suo motu as I concluded under issue 3, that the prerequisites of a valid sale of land under customary law includes the actual handing over of the land in the presence of witnesses. He also held that PW1 did not witness the handing over of the land. While it is true that to establish a valid sale of land under customary law there should be witnesses to the handing over of the land, in this case there was a receipt. That receipt brings the sale transaction outside the purview or orbit of sale of land under customary law. In the case of CLAY INDUSTRIES (NIG) V. AINA & ORS (1997) LPELR-871 (SC) the Supreme Court stated that the making and
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giving of receipt are unknown to native law. The Supreme Court in that case cited the case of ABOYADE COLE V. FOLAMI (1956) SCNLR 180 where Jibowu Ag. FCJ stated that “It is to be observed that the making and giving of receipt are unknown to native law, and the giving of the receipt Exhibit “J” is not known within the rule of native law and custom.” It is therefore wrong for the lower Court in the face of Exhibit 3, to speak of prerequisites of a valid sale of land under customary law or to imply that it is necessary for PW1 to witness the handing over of the land before the sale of the land by the late General Bamaiyi can be said to be valid. Issuance of a receipt for payment of land is incompatible with or alien to customary law. Issue 4 is also resolved in favor of the Appellant.
Issue 5 as will be recalled, has to do with certainty of identification of the disputed land. The Appellant’s learned Senior Counsel submitted that the Respondents did not positively identify any land. We were referred to the description of the land at p.100 of the Record of Appeal. It was submitted that the Courts have held in a plenitude of cases that a person seeking a
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declaration of title to land must clearly state the boundaries of the land. He cited GBADAMOSI V. DAIRO (2007) 3 NWLR (Pt 1021) 282; ARABE V. ASANLU (1980) 5-7 SC 78; OGEDENGBE V BALOGUN (2007) 9 NWLR (Pt. 1039) 380.
In his submission in response, the Respondents learned Counsel argued that it is too late in the day for the appellant to raise the issue of identity of the land as it was never raised at the lower Court. It was submitted that in the pleadings and evidence led by the parties, the identity of the land was never in dispute.
I agree with the respondents’ learned Counsel. Looking at the pleadings and the evidence led, there is no dispute whatsoever over the identity of the land in dispute. I will even go further to state that the parties were ad-idem with regard to the identity of the land both in their pleadings and evidence led. In its Amended Statement of Claim, in paragraph 18 thereof, at page 49 of the Record of Appeal, the land in dispute is described inter-alia as ” formally ( sic), known as Kaura Motors Land and covered by a Zaria Local Government Customary Right of Occupancy No. ZAR/A/0258.” In the Respondents Amended Statement
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of Defence, in paragraph 12 and 13 thereof at page 99 of the Record of Appeal, the respondents pleaded that by reason of being heirs (of late General Bamaiyi) they are the owners of the property, the documents in respect of which show sale from Kaura Motors. Thus the pleadings of the parties speak of the land that was formerly owned by Kaura Motors. Now to the evidence: the Appellant tendered a Local Government Right of Occupancy of KAURA MOTORS dated 22-1-86 and a receipt of MUSHABIDA AGRICULTURAL VENTURES that relates to Certificate of Occupancy No. ZAR/A/0258 dated 22-1-86. The Respondents tendered a Certificate of Occupancy of KAURA MOTORS LIMITED with Certificate No. ZAR/A/0258. How in the face of such patent agreement by both parties in both their pleadings and evidence on the identity of the land it can still be argued that the land was not positively identified, is an enigma. Issue 5 is resolved against the appellant.
I now turn to issue 6 which is whether the lower Court rightly evaluated the pieces of evidence adduced by both parties. On this issue, the learned Senior Advocate of Nigeria on behalf of the Appellant submitted that had the lower
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Court placed the evidence of PW1 and PW2 on one side and that of DW1 and DW2 on the other and weighed them, he would have come to the conclusion that the evidence adduced by the Appellant outweighed that of the Respondents. It was submitted that while the Certificate of Occupancy tendered by the Appellant (Exhibit 1) has all the features of an original Certificate of Occupancy, that tendered by the Respondents did not have same. It was submitted that a seller of land can still keep a copy of the title document but not the original. It was submitted that the lower Court was wrong not to have found in favor of the appellant that the late General Musa Bamaiyi sold the land in dispute during his lifetime.
In his argument in response, the Respondents learned Counsel submitted that the Appellant did not dispute the Respondents counterclaim and is therefore deemed to have admitted it. It was also submitted that the Respondents satisfied the lower Court as to their claim to the land having led credible evidence in support of their case.
Replying, Learned Senior Counsel for the Appellant submitted that the Appellant did not need to file a Reply to the
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counterclaim as it is not necessary to file a Reply for the sole purpose of denying allegations made in a Statement of Defence.
It is true that it is not necessary to file a Reply for the purpose of denying allegations made in a Statement of Defence since issues can be joined by the filing of a Statement of Claim and a Statement of Defence. But the position of the Respondent is not about a failure to file a Reply to a Statement of Defence, rather, it is about a failure to file a Reply or Defence to a counterclaim. Where a plaintiff fails to file a reply or defense to a counterclaim the Court is entitled to assume that the plaintiff has no defence to the counterclaim and may enter judgment for the defendant accordingly. See USMAN V. GARKE (2003) LPELR-3431 (SC).
However, a counterclaim will not succeed if the defendant did not establish the counterclaim. See USMAN V. GARKE (supra). Indeed it is the law, and it is long been settled, that the onus lies on the plaintiff, and this of course must include a claimant in a counterclaim, to satisfy the Court that he is entitled on the evidence brought by him, to a declaration of title. In this regard, the
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plaintiff or a claimant must rely on the strength of his own case and not on the weakness of the defendant’s case. See KODILINYE V. MBANEFO ODU 2 WACA 336 at 337; FREMPONG V. BREMPONG 14 WACA 13; UCHENDU V. OGBONI (1999) 4 KLR (P. 80) p. 715 at 744.
The case of the respondents is that the land in dispute belonged to late General Musa Bamaiyi who never sold it. But as I have pointed out while considering issues 1 and 2, Exhibit 3 which the respondents failed to contradict by producing a signature of the late General Bamaiyi, shows that the land was sold by the late General Musa Bamaiyi. The Appellant has the Certificate of Occupancy to show for it. When property is sold, the original title document is handed over to the buyer while the seller may retain a copy of it. It is therefore not strange that the respondents found a mere copy, not original of the Certificate of Occupancy among the documents left behind by the late General Musa Bamaiyi. That discovery is not sufficient to show that the land was not sold by the late General. Evidence of ownership of the land clearly preponderates in favor of the Appellant. The lower Court should have given judgment in
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favor of the Appellant if it had properly evaluated the evidence before it. It is the law that an appellate Court can re-evaluate evidence and come to an independent decision from the trial Court where the trial Court has erred in evaluating the facts found by it. See ALI V. STATE (2015) LPELR-24711 (SC). In ANYEGWU & ANOR V. ONUCHE (2009) LPELR-521 (SC) the Supreme Court stated that the Appeal Court can conveniently embark on re- evaluation where (a) the trial Court’s evaluation of the evidence is clearly perverse; (b) the trial Court drew wrong inferences from the totality of the evidence; and (c) the trial Court applied wrong principles of law to accepted facts in the case. I find that the evaluation of Exhibit 3 by the lower Court is perverse. I also find that the lower Court drew wrong conclusions from the mere fact that a copy of the Certificate of Occupancy relating to the land tendered by the respondents (Exhibit 5) was among the documents left behind by the late General Musa Bamaiyi. It is clear to me that the evidence before the lower Court shows that the late General Bamaiyi divested himself of ownership of the land. A person cannot be allowed
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to claim a declaration of title to land which he has divested himself of ownership through sale of the property. See SANYAOLU V. COKER (1983) 1 SCNLR p.168 at p. 169. The respondents therefore cannot be allowed as heirs, to claim a declaration of the property which the late General Musa Bamaiyi had divested himself of the ownership. The result is that the appeal has merit and is allowed. The judgment of the lower Court is set aside. In its place the Appellant’s claims as prayed before the lower Court are granted. Parties will bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the lead judgment just rendered by my learned brother, Obietonbara O. Daniel-Kalio, JCA. I entirely agree with the reasoning therein for the conclusion that the appeal is meritorious.
It is accordingly allowed. I adopt the consequential orders made in the judgment.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother O.O. DANIEL-KALIO JCA, where the facts and issues in contention have been succinctly set out and
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determined. I agree with my learned brother that the trial judge’s evaluation of Exhibit 3, a vital document, was perverse. Had the proper inference being drawn, it would have been clear that the Appellant’s deceased vendor Gen. Musa Bamaiya divested his title in the land in dispute to the Appellant.
I also allow the appeal and set aside the judgment of the lower Court.
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Appearances:
YUNUS USTAZ USMAN, SAN with him, A. S SOLAHUDDEN, Esq., and A. H. BELLO, Esq. For Appellant(s)
FESTUS OKOYE, Esq., with him, SARAH MENTA-ALALADE, ESQ., MARTINS JOSEPH, ESQ., and L.O. IZUKA, ESQ. For Respondent(s)