ALHAJI CHIEF A.A. SHOBANKE & ANOR V. ALH. ABDULLAHI SALIHU SARKI & ORS.
In The Court of Appeal of Nigeria
On Monday, the 18th day of April, 2005
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
OFR Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
- ALHAJI CHIEF A.A. SHOBANKE
2. SARKIN YARABA WA GUSAU Appellant(s)
1) ALH. ABDULLAHI SALIHU SARKI
2) BELLINCO NIGERIA LTD
3) MR. ROBERT AYANDIGWU Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the Kano State High Court NO.6 presided by Wada Rano J. delivered on the 25th September 1997. In the court below, the present Appellant as plaintiff had taken out a writ of summons to which was attached a statement of claim dated the 22nd November 1989 which was amended twice by order of court. The amended statement of claim, which was deemed filed and served on the 13th March 1992 by the then plaintiff against the defendants jointly and severally is for –
(a) A Declaration that he is the owner of the property situate at No.7 Church road Sabon Gari Kano and is entitled to the right of occupancy and possession of same.
(b) A declaration that the purported sale of the plaintiffs property situate at No.7, Church Road Sabon Gari Kano by the 1st and 2nd defendants to the 3rd defendant is ineffectual, null, void and a fraud on the plaintiff.
(c) An order setting aside the purported sale of the plaintiffs property by the 1st and 2nd defendants to the 3rd defendant
(d) An order that the defendants account for the rents collected on the property from 1985 till date.
(e) A perpetual injunction restraining the defendants jointly and severally either by themselves, assigns, privies, servants, agents or otherwise from continuing to remain in occupation of the plaintiff’s property or interfering or doing any act inconsistent with the plaintiffs ownership rights over the aforesaid property.
(f) N300,000.00 damages against the defendants for trespass.
(g) For such further order orders
The case of the Appellant is that he put his house No.7, Church Road Sabon Gari Kano for sale through his trusted friend and agent, the 1st Respondent. The 1st Respondent informed the Appellant that he had received offers from prospective buyers in the range of N50,000 – N60,000.00 for the property with possibilities of a higher offer and that the most serious of the prospective buyers who was ready to pay immediately was the one with an offer of N55,000.00. Since the 1st Respondent was aware of the loss of the Appellant Certificate of Occupancy over the house he requested the Appellant to produce an affidavit for loss of the said Certificate of Occupancy as requested by the 1st Respondent. The Appellant relying on the good faith of the 1st Respondent signed a blank transfer form without dating it and prepared a receipt for sale of the house to Alhaji Saidu Adamu on the 11th January, 1985 (without having been paid) and swore to an affidavit of loss of Certificate of Occupancy and the Appellant forwarded same to the 1st Respondent through the Appellants agent which was received by the 1st Respondent. The 1st Respondent refused to pay the purchase price of N55,000.00 to the Appellant and failed to return the documents he received despite repeated demands by the Appellants agent. Subsequently the property was fraudulently sold to the 3rd Respondent without the Appellant’s approval or consent. The Respondents denied the above averments in their statement of defence.
The defendants maintained their original statement of defence dated the 8th January, 1990 despite their rights to consequential amendments of their own pleadings as a fallout of the amendments carried out by the plaintiffs. Pleadings having thus been filed and exchanged the case went through a full trial and at the end of which the court in its judgment said the plaintiff’s case had failed in toto and accordingly dismissed same. Dissatisfied with this Judgment, the plaintiff as Appellant filed a Notice of Appeal dated the 12th December, 1997 containing twelve grounds of appeal out of which five issues were formulated in the Appellant’s Brief of argument dated the 29th November 2000 and granted via a motion dated 29th November 2000 extending time to file the said brief out of time and to deem the said Brief as duly filed and served and which motion was granted on the 30th November, 2000. The five issues formulated by the Appellant for the determination of this court are as follows:-
Whether or not there was any valid enforceable contract of sale of Appellant’s property at No.7, Church Road Sabon Gari Kano between the Appellant and the Respondents on the 11th January, 1985 or any other date. This issue according to the Appellant’s brief covers grounds 1, 2, 4, 6, 8, 10 and 12 of the Notice and the grounds of appeal.
Whether or not Exhibit EE tendered by the 1st and 2nd Respondents was not wrongly admitted by the lower court. This issue is said to cover ground 7 of the Notice and grounds of Appeal.
Whether or not the findings of the lower court that the Appellant was aware of the fraudulent transfer of his property at Waje Land Office Kano and that he wittingly refused to join the officials at Waje Land office, as parties to the suit are not perverse. This is said to cover ground 11 of the Notice and grounds of appeal.
Whether or not in the whole circumstances of this case the Appellant did not prove his case to be entitled to Judgment.
Whether or not the Appellant had a fair trial in the consideration of his case at the lower court. This issue is said to cover ground 3 in the Notice and grounds of appeal.
The Appellant also filed an amended Reply Brief dated the 11th October 2004 and filed on the 22nd October 2004. The 1st and 2nd Respondents filed an amended Joint Brief of argument dated the 20th September 2004 via a motion dated the 20th September, 2004 and filed same day for an order granting leave to amend their brief of argument and to deem as properly filed and served the amended joint brief of argument which was marked as exhibit “A”. This application was moved and granted on the 30th September, 2004. No brief was filed by the 3rd Respondent.
When this matter came up for hearing on the 19th January 2005, counsel for the Appellant Kayode Olatunji Esq adopted the Appellants brief of argument together with the issues for determination as well as the amended Appellants Reply Brief. He urged the court to allow the appeal, set aside the Judgment of the High Court and grant all the reliefs claimed by the Appellants. No counsel appeared for the Respondents. Recourse to the Courts Records however shows that one B. M. Salihu Esq appeared as counsel for the 1st and 2nd Respondents on the 30th September 2004 when this matter was adjourned to the 19th January 2005 for hearing. The 1st and 2nd Respondents in their amended Joint brief of argument formulated no issues of their own but chose to reply these issues seriatim as argued by the Appellant in the Appellants’ Brief of Argument. I propose to deal with the issues as formulated by the Appellant in his brief.
Whether or not there was any valid enforceable contract of sale of Appellant’s property at No.7 Church Road, Sabon Gari Kano between the Appellant and the Respondents on the 11th January, 1985 or any other date. This issue encompasses grounds 1, 2, 4, 6, 8, 10 and 12 of the Notice and grounds of appeal. The affected grounds, which can be found on pages 117 – 124 are reproduced as follows –
GROUNDS OF APPEAL
The Judgment is against the weight of evidence.
The learned trial Judge misdirected himself by holding thus-
“Taking into consideration the fact that the 1st and 2nd defendants paid the plaintiff the sum of N25,000.00 through the 2nd defendant Bank draft being an initial deposit towards the sale as per exhibit P. …I am inclined to believe that exhibit X receipt dated 11/1/85 must have been issued in the name of the 2nd defendant.”
And thereby came to an (sic) property to the 1st and 2nd defendant.
The learned trial Judge misdirected himself in holding erroneously that the plaintiff issued exhibit X receipt of sale of the property dated 11/1/85 to the 1st and 2nd defendants (sic) creating a contract of sale with the 1st and 2nd defendants.
The learned trial Judge misdirected himself in holding thus –
“The 1st and 2nd defendant’s letter dated 23rd April 1985 exhibit EE also support the claim that the 2nd defendant purchased the property in dispute. All other payments made to the plaintiff in respect of their property in dispute seems to have been made for and on behalf of the 1st and 2nd defendant” and this misdirection has occasioned miscarriage of justice.
The learned trial Judge misdirected himself by holding thus fully satisfied that the plaintiff had been paid the whole purchased price in respect of the house by the 1st and 2nd defendant. I find it difficult to agree with the plaintiff that he had paid back all monies he received in Gusau Area Court to the 1st defendant. The plaintiff clearly refused to say anything in respect of exhibit DD and this misdirection has occasioned a miscarriage of justice.
The learned trial Judge erred in law (sic) he holding that there was a valid contract of sale of plaintiffs property to the 3rd defendant by collecting the balance of the purchase price and ratified the sale when there was no contract at all nor any dealings at all between the plaintiff and the 3rd defendant.
The learned trial Judge erred in law in refusing to set aside the purported sale of plaintiffs property when no valid contract of sale known to law was established by the defendants.
In Orient Bank of Nigeria Plc v. Bilante International Ltd (1997) 8 NWLR (pt.515) page 37 at page 76, the elements that make up a valid contract were highlighted thus:-
“It is elementary law that five ingredients must be present in a valid contract. They are offer, acceptance, consideration, intention to create legal relationship and capacity to contract. All these five ingredients are autonomous units in the sense that a contract cannot be formed if any of them is absent. In other words, for a contract to exist in law all the five ingredients must be present.” See also the following cases-
Union Bank of Nigeria v. Sax Nigeria Ltd & Ors (1994) 8 NWLR (pt.36) page 150 at page 168. Chief Okubile & Anor v. Oyagbola & Ors (1990) 4 NWLR (pt.147) page 723.
An acceptance of an offer may be demonstrated (a) by conduct of the parties or (b) By their words or (c) By documents that have passed between them. See the following cases – Majekodunmi v. National Bank of Nigeria (1978) 3 S.C 119. Charboury v. Adebayo (1972) NCLR 384. Union Bank of Nigeria Ltd v. Professor Ozigi (1991) 2 NWLR (pt.176) at page 677…In the present case it is instructive to examine the testimonies of the Appellant and the 1st Respondent and relate them to the exhibits before the court. In doing so, one must however have recourse to the provisions of section 132(1) of the Evidence Act CAP 112 Laws of the Federation of Nigeria 1990 which states that:
“When any Judgment of any court or any other judicial or official proceedings or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents no evidence may be given of such Judgment or proceedings or of the terms of such contract grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” (underlining mine)
The Supreme Court lent its judicial weight on section 132(1) of the Evidence Act 1990 in the case of S. B. Fashanu v. M. A. Adekoya (1974) 1 ALL N.L.R. (pt.1) page 35 where it held as follows-
“Where the court of trial is left only with the Oath of one side, but with a number of documentary evidence which tell the same story, it is useful to test the veracity of the parties against the rigid yardstick produced by documentary evidence it, which is evidence of a permanent character.”
What this provision of the Evidence Act and the Supreme Court authority are saying is simply that documentary evidence should and does take a pride of place over oral evidence in matters pertaining to, as in this case contract between parties. This must mot be misunderstood as saying that oral evidence should be jettisoned. I will first of all like to refer to the evidence of PW2 Mohammed Abdullahi at pages 51 – 53 of the records. He works at Waje District head’s Office in Nassarawa Local Government as a Lands Officer where the property in question No.7 Church Road Sabon Gari, Kano falls and the file No.CHUR/7/VOL.1 in respect of the property No.7 Church Road, Sabon Gari, Kano was tendered as exhibit V through him. He said he had been a land officer for 20 years and that up to 1985 the owner of the said property was the plaintiff. He said further that at page 108 of exhibit V there is a receipt of purchase dated 11/1/85 from the plaintiff to the 2nd defendant a photocopy, which was submitted by the 1st defendant. He went on to give other pieces of evidence and under cross-examination by defence counsel Mr. Ojo PW2 said as follows:
“on page 102 of Exhibit V there is an affidavit deposed to by the plaintiff (now Appellant). From the contents of the affidavit our office knew that the property had been sold by the plaintiff. From the affidavit the plaintiff had no objection to transfer the property, to any new Landlord… . The new Certificate was issued to 3rd defendant on 26/4/85. Between 26/4/85 there was no complaint in our office about any illegal transfer of the property in dispute. From the whole of the property file I cannot say there was a misrepresentation by 1st defendant.”
This is the evidence of an independent professional witness who stood to gain nothing whichever way the case was decided. (underlining mine)
This evidence would appear to tally with the finding of the High Court that taking into consideration the fact that the 1st and 2nd defendants paid the plaintiff the sum of N25,000.00 through the 2nd defendanfs bank draft being the initial deposit towards the sale as per exhibit P, exhibit X (receipt dated 11/1/85) must have been issued in the name of the 2nd defendant. The court was also in my view right when it held that failure by the Appellant to call his agent Alhaji Bisiriyu to give evidence in rebuttal of the 1st defendants testimony that exhibit X and other documents were sent to him (Appellant) through Alhaji Bisiriyu was fatal to his case. Section 149(d) of the Evidence Act Laws of the Federation of Nigeria 1990 provides that:-
“The court may pressure the existence of any facts which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in relation to the facts of the particular case and in particular the court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it”
The contents of documents are sacrosanct and it is very difficult to deny them. The court had alluded to a number of documents emanating from the Appellant acknowledging the sale of the property notably exhibit T dated 22/4/85 which had the following very revealing disclosure:
“Now that a new man has purchased the house and fully paid for it you have asked him to be introduced to the tenants as the new Landlord and he has completely taken over the house since March 1985. On my part I have also signed all necessary applications for change of ownership…”
“Please send me the balance of the of the money through brother Bisiriyu or any part of it that you can immediately afford in view of the contents of your letter of 8th March 1985.” (Underlining mine)
In exhibit FF the plaintiff wrote to the 1st defendant acknowledging receipt of N38,000.00 from the 1st defendant leaving a balance of N12,000.00 out of the purchase price of N50,000.00. From the evidence already given the Appellant was fully aware of the sale of the property to the 3rd Respondent. According to the evidence of PW2, the Waje Land Office relied on the affidavit of the Appellant that the property had been sold and consequently a new certificate was issued in the name of the 3rd defendant on the 26th April 1985. I am inclined to believe what the lower court has said to the effect that the Appellant was aware of the regularity of the Waje Land Office and that was why he chose not to join them as parties. The officials of the Waje Land Office are necessary parties and ought to have been joined as such. PW’s evidence is also to the effect that the Appellant was not interested in the personality or identity of the buyer of the property. It could be any body. Issue No.1 must be and is resolved in favour of the Respondents against the Appellant.
ISSUE NO.2 – is as to whether or not Exhibit EE tendered by the 1st and rd Respondents was not wrongly admitted by the lower court. This issue is said to cover ground 7 of the Notice and grounds of appeal. This ground is reproduced as follows and can be found on page 121 of the record of appeal:-
GROUND 7 – The learned trial Judge erred in law in admitting Exhibit EE in evidence, which is clearly inadmissible in law.
The document admitted as Exhibit EE by the court is a letter dated 23/4/85 by the 1st defendant to the plaintiff and it is pleaded in paragraph 42(xv) of the 1st and 2nd defendants joint statement of defence at page 111 of the Record. The pleading itself is on page 116 of the Record. Paragraph 42(xv) reads as follows –
“At the hearing of this suit, the 1st and 2nd defendants plead the following documents for their full meaning and effect namely:
Letter of 1st defendant to plaintiff dated 23/4/85.” Admittedly, the expression on page 64 lines 15 and 16, which reads –
“I wrote a letter to defendant dated 23/4/85” is clearly an error or slip or may have been typographical as what was in contemplation was the 1st defendant’s letter to the plaintiff as properly pleaded in paragraph 42(xv) of the 1st and 2nd defendant’s Joint Statement of defence. The said letter is not only pleaded but is relevant to the proceedings as it relates to the sale of the property in question i.e No.7 Church Road, Sabon Gari, Kano, which is the subject matter of this suit. What is not in doubt is that the original of this document was or appeared to be in the possession or power of the person against whom the document was sought to be proved i.e, the plaintiff which made secondary evidence of its existence, condition or contents of the document admissible. In this connection reference is made to section 97(1) (a) (i) of the Evidence Act, Laws of the Federation of Nigeria 1990 which states as follows, “secondary evidence may be given of the existence, condition or contents of a document in the following cases-
(a) When the original is shown or appears to be in the possession or power-
(i) of the person against whom it is sought to be proved.
From the flow of evidence there was no iota of doubt that the original of the document sought to be tendered was in the possession or power of the plaintiff. 1st defendant said he wrote this letter to the plaintiff. It is clear that the original is with the plaintiff. What other foundation was expected to be laid by the defendants counsel for its admissibility? That argument is unduly technical and academic. The document as has been shown is pleaded, it is relevant to the proceedings and it is admissible under section 97 (1) (a) (i) of the Evidence Act Laws of the Federation of Nigeria 1990. See the Supreme Court case of A. K. Fadlallah v. Arewa iles Ltd (1997) 8 NWLR (pt.SI8) page 546 especially at page 551. See also Oyediran v. Alebiosu II (1992) 6 NWLR (pt.249) page 550. Monier Construction Co. Ltd v. Alubike (1990) 3 NWLR (pt.136) page 74. I therefore hold that Exhibit EE was properly admitted by the court. Issue No.2 must and is therefore resolved in favour of the Respondents.
IssueNo.3 – Whether or not the findings of the lower court that the Appellant was aware of the fraudulent transfer of his property at Waje Land Office Kano and that he wittingly refused to join the officials at Waje Land Office, as parties to the suit are not perverse. This issue relates to ground 11 of the Notice and grounds of appeal, which can be found page 123 of the Records. The said ground is reproduced thus – GROUND 11 – The learned trial (sic) erred in law in holding that the plaintiff was aware of the fraudulent transfer of his property at Waje Land Office and that he wittingly refused to join the officials at Waje Land Office (sic) parties to the suit and not being joined he could not make any order that will affect the role they played in the matter when there was no claim made against Waje Lands Office Kano.
I think the Appellant is making heavy weather out of what should be light showers. PW2, a witness brought by the Appellant and a lands officer had come to give perhaps the most damaging evidence to the Appellants case. This has been highlighted earlier in this Judgment and I do not intend to revisit it. Suffice it to say that PW2’s conclusive evidence was that from the whole property file (exhibit 7) he could not say there was a misrepresentation by the 1st defendant. The court with the evidence of PW2 in mind remarked in other words that if the Appellant felt that he had a good case he could have joined the officials of the Waje Land Office who are in custody of exhibit V, the property file with respect to NO.7 Church Road, Sabon Gari, Kano. Most certainly and I had said so earlier in this Judgment that the Waje Land Officials were necessary parties who ought to have been joined. The statement credited to the learned trial Judge certainly did not affect the mind of the Judge and most certainly could not and did not lead to a miscarriage of justice. This issue is resolved in favour of the Respondents against the Appellant.
ISSUE NO.4 – Whether or not in the whole circumstances of this case the Appellant did not prove his case to be entitled to Judgment.
An issue must be formulated from a ground or grounds of appeal contained in the Notice of Appeal. In the Appellant’s brief issue NO.4 has not been shown to be formulated out of any of the twelve grounds of appeal and is accordingly struck out.
ISSUE NO.5 – Whether or not the Appellant had a fair hearing in the consideration of his case at the lower court. This issue is said to cover ground 3 in the Notice and grounds of appeal. The said ground 3 which can be found on page 118 of the Records is reproduced hereunder-
GROUND 3 – The learned trial Judge misdirected himself in making up his mind to dismiss the plaintiffs claim even before reviewing the evidence adduced by the parties and against the issues joined in the pleadings by holding thus –
“Initially, one Alhaji Saidu Adamu offered to buy the property but had to back out when he realized that the original Certificate of Occupancy was not available. I think the first problem encountered regarding the sale of the property in dispute started with the false impression given by the plaintiff that the original Certificate of Occupancy in respect of the property in dispute was lost”
and this error has denied the plaintiff a fair hearing in the consideration of this case.
The comments made by the learned trial Judge were made after an evaluation of the entire evidence adduced by the Appellant and the Respondents. They were not preconceived notions in the mind of the trial Judge, which could be said to have weighed on the mind of the Judge in arriving at a just decision. This issue is accordingly resolved in favour of the Respondents.
On the whole the appeal lacks merit and ought to be and is hereby dismissed. The Judgment of the High Court 6 Kano delivered on the 25th September 1997 is hereby affirmed. There shall be N5,000.00 costs in favour of the 1st and 2nd Respondents against the Appellant.
MAHMUD MOHAMMED, J.C.A.: I have had the privilege of reading before now the judgment of my learned brother Alagoa, JCA just delivered. I am entirely in agreement with him that the appeal lacks merit and ought to be dismissed. I also abide by the consequential orders made in the lead judgment including order of costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the lead judgment of my learned brother, Stanley Shenko Alagoa, JCA just delivered. I am also of the view that there is no merit in this appeal. I also dismiss the appeal and endorse the consequential order made in the lead judgment.
KAYODE OLATUNJIFor Appellant
- M. SALIHUFor Respondent