ANJA v. YONOVKAA & ANOR
(2022)LCN/16223(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/MK/215/2014
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
MRS. JULIANA ANJA APPELANT(S)
And
1. PRINCE ABAGI SAMUEL YONOVKAA 2. AIRTEL NETWORKS LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES OF REGISTRATION AND SEEKING OF GOVERNOR’S CONSENT CAN BE USED AS A YARDSTICK BY A PERSON WHO SOLD HIS LAND TO VITIATE THE SALE
Definitely, the law will not also allow the Appellant to eat her cake and have it as she cannot as she is doing now come under the guise of registration of transfer of title documents to vitiate the sale she willingly performed by EXH B1. The law is settled that issues of registration, and seeking of governor’s consent cannot be used as a yardstick by a person who sold his land to vitiate the sale, and the seller like the Appellant herein have a corresponding duty in law to ensure that all this procedures are duly followed with. Where it is not done, as in the instant case, the Appellant cannot benefit from that. See the authority of Sosan v. H.F.P Engineering Nig Ltd (2003) LPELR 7232, Pp 36 -38, Paras B – F where the Court of Appeal had this to say on this issue:
“S. 22 of the Land Use Act provides:- “It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.” S. 26 of the same Act further provides – “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” PER HASSAN, J.C.A.
THE POSITION OF LAW ON THE RULES OF INTERPRETATION
Firstly, there is the general rule that in Court’s interpretative duty clear and unambiguous words must be assigned their ordinary meaning. Secondly, the lower Court was bound by the rule of stare decisis. A Superior Court had in a similar situation apparently declared a transaction void. The instant appeal does bring into focus the helplessness of parties who having enjoyed benefits from an illegal transaction seek to plead the very fact of the illegality to get away with unlawfully derived benefits. Public policy demands that such persons are disallowed from raising, because of the clear words of the relevant statutes, the omission in an otherwise lawful transaction. The Supreme Court in Ugochukwu v. Coop. & Commercial Bank Ltd. (1996) 6 NWLR (Pt. 456) 524 at 540, has held that it is the duty of the holder of the right of occupancy sought to be dismissed to seek the necessary consent of the Governor to transfer same. Further applying its decision in Solanke v. Abed (1962) 1 SCNLR 371 and Oil Field Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625, the Apex Court had also resolved that it is not for the likes of the appellant in the instant appeal to be heard, having benefited from an otherwise lawful transaction, to say that a sublease be declared void because necessary consent had not been obtained. The trial Court and, given S. 16 of the Court of Appeal Act, this Court as well, are all bound by the foregoing decisions. This is one moment because of the facts of the instant case where public policy demands that Court tarry very much from giving effect to the clear and unambiguous words which constitute a statute.” PER HASSAN, J.C.A.
THE POSITION OF LAW WHERE A PARTY PLEADS THE CONTENT OF A DOCUMENT OR EVENTS AND THE CIRCUMSTANCES LEADING TO THE MAKING OF A DOCUMENT
It is settled law that where a party pleads the content of a document or events or facts and circumstances leading to the making of a document, same suffice as sufficient pleading of that document. The document must not be specifically stated to be pleaded. Therefore, I do not agree with Appellant’s counsel that EXH B or EXH B1 as the case may be was not pleaded. See M.M.A. Inc. v. NMA (2012) 18 NWLR (Pt. 1333) 506 SC, wherein the Supreme Court, per Galadima JSC, explained the principle as follows- “The case of Day v. William Hill (Parklane) (1949) 1 KB 632 was cited with approval by the Supreme Court in Banque Genevoise De Commerce Et De Credit v. Cia Mar Di Isola Spetsai Ltd (1962) 2 SCNLR 310. The Court affirmed that a reference to a document in a pleading makes the document part of the pleading.” Documentary evidence need not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. See Arabambi v. Advance Beverage Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 SC, Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 SC. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice A. O. Onum in Suit No. MHC/150/2013, on the 30th day of June, 2014, wherein the trial Court entered judgment for the 1st Respondent and dismissed the Appellant’s counter-claim.
The Appellant was the 2nd Defendant/Counter-Claimant, while the 1st Respondent was the Plaintiff, and the 2nd Respondent was the 1st Defendant at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide her Notice of Appeal dated 29th day of August, 2014. The Notice of Appeal is found at pages 155 – 161 of the Record.
The Record of Appeal was compiled and transmitted to this Court on the 1st of December, 2014. The Appellant’s brief of argument was filed on the 16th of February, 2018, but deemed properly filed by this Court on the 8th of July, 2021, while the 1st Respondent’s brief of argument was filed on the 5th of April, 2018, but deemed properly filed on the 8th of July, 2021, as well. The 2nd Respondent did not file any brief in respect of this appeal, and the Appellant did not file any reply brief.
At the hearing of the appeal, parties were not present as well as counsel to both Appellant and Respondents without any reasonable excuse despite proof of hearing notice served on both counsel, this Court noticed from the record that both the Appellant as well as the 1st Respondent Counsel filed their respective briefs since 2018 and order that pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2021 this appeal will be treated as having been duly argued. Upon which this Court reserved the Appeal for judgment.
The 1st Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated 26th of April, 2013, and filed on the same date, which was issued to the Appellant who was 2nd defendant and the 2nd Respondent who was 1st Defendant at the Trial Court. The reliefs sought by the 1st Respondent against the Appellant and 2nd Respondent by Paragraph 18 of the statement of claim accompanying the writ are as follows:
1. AN ORDER of this Court for the defendants to disclose what has transpired between them in respect of the lease relating to the property between the defendants from April 2012 till date.
2. AN ORDER for this Court declaring null and void any subsequent agreement made between the defendants.
3. An Order of account of the 2nd defendant of any money received from the 1st defendant.
4. An ORDER for the 1st Defendant to enter a fresh lease with the plaintiff or vacate the property.
5. An ORDER of Ten Million Naira damages. See page 7 of the record.
The Appellant as 2nd Defendant upon being served with the writ and accompanying documents, filed a counter-claim against the 1st Respondent as Defendant to counter-claim. However since this Appeal does not concern itself with the counter-claim of the 2nd Respondent which was dismissed, I shall not reproduce the reliefs sought by the 2nd Respondent’s counter-claim. The 2nd Respondent equally filed a defence, but abandoned same and relied on the case of the Plaintiff who is now 1st Respondent.
BRIEF STATEMENT OF FACTS
The case of the 1st Respondent against the Appellant and the 2nd Respondent at the trial Court was that sometimes in 2010 and 2011, he boughtproperty no. 123 lying and situate at Aliade North Behind Government Secondary School, Aliade, Benue State from the Appellant and upon completion of payment for the property, the Appellant handed over the Certificate of Occupancy and other related documents in respect of the property.
That prior to the sale, the Appellant informed the 1st Respondent that she leased the property to the 2nd Respondent and the 2nd Respondent has erected a Base Transceiver Station BTS on the said plot, and that the lease was for 5 years and same will lapse in March, 2012. That since the expiration of the lease between the Appellant and the 2nd Respondent, she had refused to introduce the 1st Respondent to the 2nd Respondent as the new landlord, and the 1st Respondent being the new owner of the plot is kept in the dark of what transpired regarding the lease since April, 2012 till the filing of the suit in April, 2013.
The 1st Respondent’s case is that when he inquired from the Appellant as to what transpired and to no avail, he caused his solicitor to notify the 2nd Respondent of the change of ownership from the Appellant to himself, and demanded for account of what transpired between the Appellant and the 2nd Respondent. And that in all this correspondence being exchanged between 1st Respondent and 2nd Respondent, Appellant kept mute and did not say anything.
It is the 1st Respondent’s case that it was in response to his solicitor’s letter that the 2nd Respondent wrote her saying the 1st Respondent should give them time to confirm the change of ownership from the Appellant and further responded that they (2nd Respondent) had paid Appellant for the second rent of 5 year term from March, 2012, and all this facts were not disclosed to the 1st Respondent by the Appellant who sold the plot of land to him. See pages 5 – 7 of the Record.
The Appellant in defence of this suit generally denied the case of the 1st Respondent and only stated that she did not sell the property to the 1st Respondent but that she only borrowed monies from the 1st Respondent to which she pledge her C of O to the property and handed same over to the 1st Respondent. That she has been making frantic efforts to redeem the loan but the 1st Respondent is not willing to accept any refund of the debt she owned him due to his desire to take over the property, and that she is not aware that 1st Respondent had written to the 2nd Respondent as the new owner of her property.
The 2nd Respondent as earlier stated simply relied on the case of the 1st Respondent who was Plaintiff at the trial Court and never entered his defence and same was deemed abandoned by the trial Court. See pages 69 – 70 of the record. At the close of hearing, parties filed and exchanged written addresses and adopted same. The final address of the Appellant is found at pages 102 – 105 of the record, while the final address of the 1st Respondent is found at 106 – 113 of the record and the address of the 2nd Respondent is found at 114 – 137 of the Record.
The trial Court in her considered judgment found at pages 145 – 154 of the record entered judgment in favor of the Plaintiff/1st Respondent and dismissed the counter-claim of the 2nd Respondent, hence this appeal.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument raised three issues for the determination by this Court as follows:
1. Whether or not the 1st Respondent who relied on the purchase of land in dispute by tendering Exhibit B1 (handwritten acknowledgment of receipt of money) has discharged the burden placed on him in proof of title to land and thus entitled to the grant of the reliefs claimed before the lower Court. (Distilled from ground 3).
2. Whether or not the learned trial judge was right to hold that the transaction between the appellant and the 1st respondent was an outright sale and not a pledge in view of the evidence before the Court. (Distilled from grounds 2 and 4).
3. Whether or not the learned trial judge properly considered and evaluated the evidence on record to warrant his decision to enter judgment for the 1st respondent against the appellant and 2nd respondent. (Distilled from grounds 1, 5 and 6).
The 1st Respondent in his brief of argument adopted the issues formulated by the Appellant, since both parties are at idem on the issues arising for determination, I shall adopt the three issues distilled in the Appellant’s brief as the proper issues arising for the just determination of this Appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
1. Whether or not the 1st Respondent who relied on the purchase of land in dispute by tendering Exhibit B1 (handwritten acknowledgment of receipt of money) has discharged the burden placed on him in proof of title to land and thus entitled to the grant of the reliefs claimed before the lower Court. (Distilled from ground 3).
SUBMISSION OF APPELLANT COUNSEL
Counsel submitted that this Court should answer this question in the negative as the 1st Respondent has not discharged the burden on him by establishing through EXH B1 that the land in dispute belongs to him through purchase from the Appellant. It is the case of the Appellant that she did not sell the land to the 1st Respondent, but only pledge her C of O for the monies she borrowed from him which she was going to return.
Counsel submitted that by the authority of Odutola v. Sanya (2008) All FWLR (Pt. 400) 781 at 793, the law is trite that there are five way of proving title to land which include by traditional evidence, by title documents, by acts of possession and ownership over a period of time and proof of possession of connection or adjacent land. That from the evidence adduced, the 1st Respondent relied on the method of production of title document to proof his title to the disputed land by relying in EXH B1 which is the hand written note acknowledging receipt of N500,000.00, and EXH B2, the Appellant’s certificate of occupancy dated 17/01/2006.
According to Counsel, the question that naturally follows is whether the dual documents are capable of conferring and transferring title or interest on the disputed land to the 1st Respondent justifying the decision of the trial Court in favor of the 1st Respondent. Counsel answered that question by stating that while EXH B2 is a good title document, EXH B1 is not as it is a mere acknowledgment of receipt of money which the Appellant acknowledged to the 1st Respondent as a loan which she pledged her C of O as collateral and intended to take back after repaying the money.
Counsel submitted that a mere perusal of EXH B1 will reveal that it is not a document transferring title and interest in the land to the 1st Respondent, as it is not an agreement of sale of land, and neither is it a deed of conveyance. Therefore, on what basis was same relied on as successfully transferring title to 1st Respondent upon which the trial Court granted his reliefs.
Counsel contended and submitted that by the Benue State Land Instrument Law Cap 87, Laws of Benue State 2004, EXH B1 is not an instrument capable of transferring title to land. That apart from not being able to transfer title to land, it was not pleaded by the 1st Respondent, and neither are the facts relating to the making of the said EXH B1. However the Appellant denied selling the land to 1st Respondent but only borrowed monies and according to counsel, this has demolished the case of the 1st Respondent and the document in EXH B1 is not valid. Counsel referred to the authority of Dabo v. Abdullahi (2005) All FWLR (Pt. 255) 1039.
Counsel also contended that EXH B1 as an instrument transferring title to 1st Respondent as he claimed was not registered. Counsel referred to the authority of Odumade v. Ogunaike (2011) All FWLR (Pt. 566) 529 at 545 to submit that for a Court to accept a document as transferring title to land, it must inquire in to the following:
(a) Whether the document is genuine or valid.
(b) Whether it has been duly executed, stamped and registered.
(c) Whether the grantor had the authority and capacity to make the grant.
(d) Whether the grantor had in fact what he purported to grant.
(e) Whether it has the effect claimed by the holder of the instrument.
Counsel contended that EXH B1 aside from not meeting the above criteria, it was denied by the Appellant as a document transferring title, as the Appellant only acknowledge receipt of monies from 1st Respondent and she intends to return same, plus the document was not registered as required in the case of Dabo v. Abduallahi (Supra). Counsel also referred to the authority of Odumade v. Ogunnaike (Supra) were the Court held that a document transferring interest must be registered.
According to counsel, the argument that EXH B1 being an unregistered document will confer equitable interest to the 1st Respondent will not avail him as the genuineness of the said document is in doubt and same is not a land purchase receipt since both parties were not ad idem on that. And on the other hand the only document of title is EXH B2 which belongs to the Appellant and her case was that she issued same to 1st Respondent as collateral for monies she borrowed.
Counsel submitted that Appellant has all the while been in possession of the land as the lease between the Appellant and the 2nd Respondent will establish. Counsel relied on the authority of Idundun v. Okumagba (1976) 10 SC 227. According to Counsel, 1st Respondent is not even entitled to the judgment of the trial Court having present an inchoate case full of contradiction and not worthy of believe, and according to counsel these contradictions as to the lease transaction are fatal to the 1st Respondent’s case. Counsel referred to the case of Bassil v. Fajebe (2001) 4 SCNJ 257.
Counsel concluding by submitting that the trial Court ought not to have entered judgment in favor of the 1st Respondent as his case is riddled with contradictions and 1st Respondent has not discharged the burden on him establishing that the land in dispute was transferred to him.
1ST RESPONDENT’S COUNSEL SUBMISSION
The 1st Respondent in his response to this issue urge this Court to hold that the he has proven his case and is entitled to judgment of the trial Court by virtue of EXH B1 which is the acknowledgement of receipt of N500,000.00 by Appellant with an undertaking to carryout change of documents in respect of plot number 123 Aliade North at a later date, and B2 certificate of occupancy in the name of the appellant.
On the submission of counsel to Appellant that EXH B1 is not a document capable of transferring title from the Appellant to the 1st Respondent, counsel submitted that Exhibit B1 binds the appellant and the 1st respondent who conscientiously put their hands to it. That the execution of EXH B1 by signing same was very much admitted by the Appellant under cross-examination.
Counsel contended that Exhibit B1 which the appellant and the 1st respondent signed is explicit and unequivocal to the effect that appellant acknowledged the receipt of N500,000,00 and undertook to carry out change of documents in respect of plot number 123 Aliade North at a later date. That in Agbabi v. Kabiru (2010) ALL FWLR (Pt 544) 132 at 154 it was, held that where a document exists and is tendered and admitted by the Court in the course of trial, it prima-facie entitles the Court to have recourse to it and make use of same in the resolution of disputes between the parties. Counsel also referred to the case of Iyagba v. Sekibo (2010) ALL FWLR (Pt. 518) 949 and submitted that the trial Court was right in having recourse to Exhibit B1 to resolve the dispute between the appellant and the 1st respondent.
On the form of Exh B1, counsel submitted that though not in conformity with the Land Instruments (preparation) Law of Benue State, it evidences payment of purchase price and relevant to prove an equitable interest acquired by the 1st respondent. Counsel relied on the authority of Etajata v. Ologbo (2007) ALL FWLR (Pt. 386) 584 particularly at 628 – 629, where the Supreme Court held:
“Where a purchaser of land or a lease is in possession by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate.”
According to counsel since the appellant is not challenging the genuineness of Exhibit B1 which she conscientiously appended her signature to, the said Exhibit indeed has conveyed an equitable interest which is as good as the legal estate in the plot of land to the 1st respondent.
On the contention, Appellant that EXH B1 was not pleaded and that Appellant denied its content, counsel submitted that the exhibit was pleaded in paragraph 6 of the statement or claim which is on page 10 of the records, and there was nowhere in the record when Appellant denied the said exhibit as she acknowledged same under cross-examination. That the Appellant willingly equally handed EXH B2 to 1st Respondent and willingly undertook to effect change of title document in favor of the 1st Respondent.
Counsel submitted further that Appellant in a bid to renege from her agreement with 1st respondent stated that she hand EXH. B2 to 1st Respondent as security, whereas, she admitted signing EXH. B1 which has an undertaking to effect change of title to 1st Respondent. According to counsel, the question that begs for answer is whether it is the Appellant evidence that would be believed or the document in EXH. B1?
In answer, counsel referred to the authority of Bongo v. Governor of Adamawa State (2012) ALL MLR (Pt. 633) 1908 at 1942 paras B – C where it was held that:
“The attempt by the appellant to discredit by oral evidence, the contents of Exhibits D – D2, documents certified and tendered through lawful authority cannot stand. As oral evidence is inadmissible either to add to or subtract from the contents of a document … Its contents cannot be changed or questioned by the oral testimony of the PW1 the appellant. See Section 132(1) Evidence Act. Their contents are therefore, relevant and unimpeachable. See also BFI Group Corp v. Bureau of Public Enterprises (2013) All FWLR (Pt. 676) 444 at 467 paras E and Anyanwu v. Uzowuaka (2009) 7 KLR (Pt. 270) 1829 at 1843 paras C – D.”
That since Appellant signed EXH B1, she cannot by oral evidence contradict same plus the case of Odumade cited by Appellant does not support her case as both EXHS B1 and B2 met the requirement of the law stated in that case. Hence, counsel argued that if indeed Exhibit B2 was deposited as security for the loan as argued by the appellant then why the undertaking by her to effect change of same to the respondent knowing fully well that it will be redeemed upon full liquidation of the loan?
On Appellant’s counsel submission that 1st Respondent presented an incoherent case full of contradiction and not worthy of believe, counsel submitted that the 1st Respondent’s case is straight forward and devoid of any contradiction as all the points highlighted by the appellant from paragraphs 4.1.17 – 4.1.20 of her brief to be contradictions in the 1st respondent’s case are with respect misconceived.
Counsel on that point urged the Court to hold that the 1st respondent proved his case on the balance of probabilities as such that cannot be disturbed by this Court, and urge my Lords to so hold and resolve this issue in favour of the 1st respondent and dismiss the appeal.
RESOLUTION OF ISSUE ONE
I will state straight forward that the contention of Appellant under this issue is that 1st Respondent has not proved his case at the trial Court that he purchased the plot of land known at plot No. 123 Aliade North from the Appellant. But counsel to Appellant mixed the issue with other extraneous matters like the need for EXH B1, the acknowledgement of receipt of N500,000, to be a registrable instrument to transfer title, that 1st Respondent’s case at the trial Court was riddled with contradictions, that Appellant did not agree to the content of EXH B1 and same was not pleaded by 1st Respondent just to cloud the mind of this Court. However, I shall consider all this issues as it regards the correctness or otherwise of the findings of the trial Court being challenged by the Appellant.
Like I said, the case of the Appellant stemmed from this issue distilled from ground 3 of her appeal is that the trial Court was not right to hold EXH B1, the acknowledgement of receipt of money is a document evidencing legal transfer of Plot 123 Aliade North by Appellant to the 1st Respondent which is covered by the title document in EXH B2. In the instant case it is very pertinent to consider the wordings and content of EXH B1 which I reproduce hereunder:
“Above sum of five hundred thousand naira (N500,000.00) has been collected by me as indicated above. Detail of change of documents in respect of the plot number 123 Aliade North shall be done later.”
It is instrumental to state that the Appellant did not deny making the said EXH B1 as she admitted under cross-examination that she signed same and never claimed that she signed same under duress as submitted by 1st Respondent’s Counsel. Even though Appellant’s counsel submitted that Appellant challenged the contend of EXH B1 as she denied that same was made to transfer the property at No. 123 Aliade North to him, but that she borrowed N500,000.00 from 1st Respondent and pledged EXH B2 as security. I want to state categorically that it is settled law beyond argument that the content of a document cannot be varied or altered by the oral evidence of a party, therefore I shall look at the documents in EXH B1 and EXH B2 as they are having regards to all the legal submissions of counsel on this issue as I resolve same.
First of all, Appellant Counsel submitted that EXH B1 is not one of the instrument permitted by law to transfer title in land as described by The Land Instrument Law, Cap 87, Laws of Benue State 2004, and on that he relied on the authority of Odutola v. Sanya (supra) to submit that the method of proof of title adopted by 1st Respondent at the trial Court was production of title document, and EXH B1 does not establish that. 1st Respondent’s counsel in his response admitted that although EXH B1 does not fall in tandem with the provision of the Land Instrument Law, the Appellant made the said document and same transfers equitable interest to the 1st Respondent which is tantamount to a legal title.
Let me say clearly that EXH B1 is not a title document but EXH B2 is. EXH B2 is equally clearly in the name of the Appellant but same was in the custody of the 1st Respondent as he was the one that tendered it, even though Appellant explained that she gave it to Appellant for keeps with respect to pledge which I shall consider in the course of resolving this issue. It clear as skye also and may rightly be contested as the Appellant is doing herein that EXH B1 is not an instrument of transfer of title as in the pure definition of one, and that EXH B2 is an instrument evidencing title.
However, in answer to the poser whether EXH B1 can transfer title to 1st Respondent of the property at NO. 123 Aliade North, it is very imperative to look at the content of the said document which explains clearly without ambiguity what transpired between the Appellant and the 1st Respondent in a bit. The document itself which is found at page 14 of the Record showed the name of the Appellant on top and entries of amounts of money in Naira with dates totaling N500,000.00 with the caption indicating the Appellant received the same amount of N500,000.00 and she signs there under. The document further indicates that details of change of documents in respect of plot no. 123 Aliade North shall be done later. It must be noted that perusal of the said document will reveal that 1st Respondent also signed there by the side as “Abagi S.Y” with the caption ‘Buyer’ under his name.
While it is taken as the Appellant will want this Court to hold that EXH B1 does not fall within the strict definition of a document transferring and conferring title to land, I agree however with the trial Court that the Appellant made the said EXH B1 as an outright sale of the property at Plot 123 Aliade North, and I hold that even though EXH B1 is not an instrument of transfer of title by the strict definition of one, however, I agree with the submission of 1st Respondent’s counsel that the said document gave 1st Respondent an equitable estate in the property at No, 123 Aliade North. See the case of Etajata v. Ologbo Ologbo (2007) All FWLR (Pt. 386) 584 at 628 – 629 cited by 1st Respondent’s counsel.
The said EXH B1 is an acknowledgment of receipt of purchase fees which the Appellant clearly acknowledge by the said document (EXH B1) and undertook to perform change of documents later. It is very pertinent to keep in mind that the undertaking in EXH B1 was accompanied with Appellant submitting EXH B2 to the 1st Respondents. The question that bugs the mind here is why will Appellant’s title document be in the custody of the 1st Respondent.
This will clearly explains Appellant’s contention that EXH B1 was made as pledge thereby leading to Appellant depositing her title document with 1st Respondent to be redeemed when the monies borrowed are paid back and when she came to pay the money, 1st Respondent refused to accept same. The denial of Appellant that EXH B1 is an outright sale of land to 1st Respondent on the basis of pledge is clearly an attempt by the Appellant to explain documentary evidence with oral evidence which is not allowed in our jurisprudence. The content of EXH B1 is clear and unambiguous, therefore, Appellant cannot by her oral evidence say that the purport of EXH B1 was a pledge when the content of the document clearly does not support her claims. Therefore I hold that the Appellant’s claim that her transaction with the 1st Respondent was a pledge as against an outright sale fails.
This take me to the issue of EXH B1 not being a registrable instrument. It is no rocket science that of course EXH B1 is not registered and is not a registrable instrument, but the Appellant must take the document as she sees it. She entered into the agreement willingly by acknowledging the receipt of the monies from 1st Respondent who signed on the document as buyer and she handed him the title document to the land with the promise to effect document change later. If it is not the land at No. 123 Aliade North for which Appellant handed the title document to 1st Respondent that he bought, then what did 1st Respondent signed off as buyer in EXH B1, when the document clearly stated the plot of land at no. 123 Eliade North
Definitely, the law will not also allow the Appellant to eat her cake and have it as she cannot as she is doing now come under the guise of registration of transfer of title documents to vitiate the sale she willingly performed by EXH B1. The law is settled that issues of registration, and seeking of governor’s consent cannot be used as a yardstick by a person who sold his land to vitiate the sale, and the seller like the Appellant herein have a corresponding duty in law to ensure that all this procedures are duly followed with. Where it is not done, as in the instant case, the Appellant cannot benefit from that. See the authority of Sosan v. H.F.P Engineering Nig Ltd (2003) LPELR 7232, Pp 36 -38, Paras B – F where the Court of Appeal had this to say on this issue:
“S. 22 of the Land Use Act provides:- “It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.” S. 26 of the same Act further provides – “Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” The foregoing provisions are undoubtedly clear in their meaning. In the instant case, it had ceased to be an issue that the necessary consent of the Governor had not been obtained. Appellant has in a very unimpressive manner argued that it was respondent’s duty to acquire the necessary consent and failure to have so acquired the required consent must disentitle the latter to the benefit of a transaction so cultivated. An apparent good talk. The respondent, both by pleadings and uncontroverted evidence particularly of DW1, has debunked the appellant’s assertion of having fulfilled his side of the bargain. On the authority of Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NLWR (Pt.97) 305, appellant has asked that Exhibit B, the sublease sought to be created without the consent of the Governor be declared null and void. This, for two reasons, seems tempting indeed. Firstly, there is the general rule that in Court’s interpretative duty clear and unambiguous words must be assigned their ordinary meaning. Secondly, the lower Court was bound by the rule of stare decisis. A Superior Court had in a similar situation apparently declared a transaction void. The instant appeal does bring into focus the helplessness of parties who having enjoyed benefits from an illegal transaction seek to plead the very fact of the illegality to get away with unlawfully derived benefits. Public policy demands that such persons are disallowed from raising, because of the clear words of the relevant statutes, the omission in an otherwise lawful transaction. The Supreme Court in Ugochukwu v. Coop. & Commercial Bank Ltd. (1996) 6 NWLR (Pt. 456) 524 at 540, has held that it is the duty of the holder of the right of occupancy sought to be dismissed to seek the necessary consent of the Governor to transfer same. Further applying its decision in Solanke v. Abed (1962) 1 SCNLR 371 and Oil Field Supply Centre v. Johnson (1987) 2 NWLR (Pt. 58) 625, the Apex Court had also resolved that it is not for the likes of the appellant in the instant appeal to be heard, having benefited from an otherwise lawful transaction, to say that a sublease be declared void because necessary consent had not been obtained. The trial Court and, given S. 16 of the Court of Appeal Act, this Court as well, are all bound by the foregoing decisions. This is one moment because of the facts of the instant case where public policy demands that Court tarry very much from giving effect to the clear and unambiguous words which constitute a statute.”
That now brings me to the submission of Counsel that 1st respondent’s case is riddled with contradictions particularly pertaining to the evidence with relation to the lease between Appellant and the 2nd Respondent. I will state immediately that it is only contradiction that are material to the claims of a party that are fatal to his case. With due respect to counsel, I hold that the fact that 1st Respondent is aware or not aware of the lease between Appellant and 2nd Respondent does not affect the sale performed by her to him, it may only affect his possessory right which is subject to the lease. More so, I have perused the evidence of 1st Respondent in paragraph 7 and 9 of his defence found at page 6 of the Record where he pleaded his awareness of the lease transaction. In any case, as I said, this submission does not affect the case of the 1st Respondent so as to disprove the sale of land.
On this note, I resolve issue one in favor of the 1st Respondent and against the Appellant.
ISSUE TWO
Whether or not the learned trial judge was right to hold that the transaction between the appellant and the 1st respondent was an outright sale and not a pledge in view of the evidence before the Court. (Distilled from grounds 2 and 4).
APPELLANT’S COUNSEL SUBMISSION
The Appellant’s concern here is whether the transaction between herself and the 1st Respondent was an outright sale or not, and Counsel submitted that the transaction between the two is not an outright sale as the trial judge did not take cognizance of the totality of evidence before him before arriving at his findings that the transaction between the Appellant and the 1st Respondent in EXH B1 was an outright sale.
Counsel submitted that the evidence of the appellant before the trial Court was consistent and unambiguous to the effect that she borrowed various sums of money from the 1st respondent at different times totaling N500,000.00 only and pledged her certificate of occupancy (Exhibit B2) as security for the said loan. While this was going on, Appellant has leased out the land to 2nd Respondent and it was only when Appellant sought to pay back the money she borrowed that 1st Respondent came up with the issue of outright sale.
Counsel submitted that while this was going on, the 1st Respondent was not even in possession of the land, therefore, what was the basis of the findings of the trial Court that the transaction between the Appellant and 1st Respondent was an outright sale. Counsel submitted that the characteristics of a sale under customary law as provided by the Apex Court in Odusoga v. Ricketts (1997) 7 NWLR (Pt. 511), and under common law, execution must be followed by possession. See Howe v. Smith (1884) 27 Ch. D 89.
Counsel submitted that the sale transaction alleged by the 1st Respondent was completely denied by the Appellant, and the Appellant on the other hand led evidence to show that the transaction between herself and the 1st Respondent was a mere pledge, that EXH B1 was a mere acknowledgment receipt, and 1st Respondent was not in possession of the land, and in fact, he was not even aware that the land was a subject of lease.
Counsel contend further that a look at EXH B1 will clearly show that same is not a document of sale but a mere acknowledgment that Appellant collected monies from the 1st Respondent as the document was not witnessed by anybody. That the basic ingredients of a valid sale to wit payment of purchase price, possession as well as witnesses having been missing here, the transaction between the Appellant and 1st Respondent is legally not an outright sale.
According to counsel, the trial Court as much found out in his decision and reached the conclusion that the 1st Respondent was not in possession of the land, but the Court still went ahead to enter judgment in favor of the 1st Respondent which ought not to be. As once it was shown that possession was not handed over to the 1st Respondent, counsel submitted that his claim of outright sale crumbled and he was not entitled to judgment.
Counsel on the strength of the cases of Odusoga v. Ricketts (supra) and Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 submitted that no one witness the sale and the 1st Respondent did not also call any witness during trial to support his case. Therefore, he is not entitled to the judgment of the trial Court as his case has missing links and shortcomings. But the Appellant had established her case as EXH B2 the C of O is in her name.
On that note, Counsel urged this Court to hold that the transaction between the 1st Respondent and the Appellant was not an outright sale base on the available evidence before the trial Court.
1ST RESPONDENT’S COUNSEL SUBMISSION
Counsel submitted to the affirmative that the transaction between the Appellant and the 1st Respondent was an outright sale as EXH B1 which is to that effect is clear and unambiguous. Counsel referred to the case of Mohammed v. Mohammed (2012) ALL FWLR (Pt. 655) 362 at 382 where it was held that:
“In the interpretation of a written agreement, the Court must confine itself to the plain words used therein. See also Friday Abalogu v. Shell Petroleum Ltd (2003) FWLR (Pt. 171) 1627.”
According to Counsel, a clear perusal of EXH B1 will reveal that the document intended the transfer of title that is why EXH B2 was handed over to the 1st Respondent. That on the other hand, there is nowhere in EXH B1 where it said that EXH B2 was handed over to the 1st Respondent as pledge in the transaction, as the Appellant handed over the land to the 1st Respondent and led him into possession pending the lease between her and the 2nd Respondent.
Counsel contended that 1st Respondent was in law led into possession by the appellant upon the payment of the purchase price. That assuming without conceding that the 1st respondent was not let into possession then the appellant cannot be heard tagging the transaction a pledge. That the law is clear that under a pledge, the pledgor gives possession and use of his land or property to the pledgee until redemption. Possession and use are vital ingredients of a pledge. Counsel referred to the case of Polo v. Ojor (2003) 3 NWLR (Pt. 807) 344 particularly at 355 paras E – D.
Counsel submitted that the Appellant did not anywhere in her evidence prove that her transaction with the 1st respondent was a pledge. She only asserted but failed to adduce evidence to prove same. That if 1st Respondent was not led into possession of the land, how then can there be a pledge in this circumstance? Counsel urged the Court to hold that Appellant has failed to establish her case of pledge.
Counsel also contended that the question as to whether the property being a subject matter of a subsisting lease can be bought by the 1st respondent can only be answered by the appellant because she was the one that leased the land to the 2nd respondent and also understood clearly the terms of the lease. She also put the same property for sale to the 1st respondent while the lease was subsisting, and if the lease was an encumbrance on the property that affected her right to alienate same, she was in a best position to know that. Since she still put forth the property for sale during the pendency of her lease with the 2nd respondent, it means that the lease did not preclude her from so doing.
As to the question whether the lease permits the Appellant to pledge the land while it subsists, counsel submitted that the intentions of Appellant and 1st Respondent in EXH B1 is clear and no other meaning can be forced on the document, as what the Appellant and the 1st Respondent intended was an outright sale of the plot of land at No. 123 Aliade North.
Counsel contended that even though the trial Court misconceived some fact arising from the lease in his final judgment, the trial Court still rightly found and held that the 1st respondent was put in constructive possession of the land by the appellant, the encumbrance that existed on the land must be spent before the 1st respondent can assume physical control of the land to exercise his rights arising from the sale. And the 1st respondent clearly established his claim at the trial and this is not due to the weakness of the appellant’s case as argued by counsel.
Counsel urged this Court to resolve this issue in 1st Respondent’s favor as Appellant has not established that she pledge the land to 1st Respondent.
RESOLUTION OF ISSUE TWO
I will start off by saying that I have already resolved in issue one that EXH B1 is a document of outright sale of the plot of land No. 123 Aliade North, and therefore I will only resolved the issues of Appellant’s contention that EXH B1 is not a sale of the property at No. 123 Aliade North and contention of counsel whether same was a pledge or not.
First of all, although Appellant’s case by her pleading was that she borrowed monies from the 1st Respondent upon which she pledge her title document in EXH B2 and handed over same to him, this assertion of Appellant is not supported by the entry in EXH B1, that the monies acknowledged by her in EXH B1 are borrowed and upon that she pledge her Certificate of Occupancy in EXH B2. The clear wording of EXH B1 is the acknowledgement of the receipt of N500,000.00 and that the details of change of document on plot 123 Aliade North will be done later.
Therefore the assertion of Appellant that the purport of EXH B1 is a pledge only exists in her head and has nowhere to hang itself as EXH B1 clearly says a different thing. Appellant’s case that she borrowed N500,000.00 (Five Hundred Thousand Naira) from 1st Respondent rather than sold her property at plot no. 123 North Aliade was clearly denied by 1st Respondent, and EXH B1 which Appellant is also relying on to establish that she borrowed monies from 1st Respondent says otherwise.
On the issue of the character of a valid sale of land contended by Appellant’s counsel, a perusal of EXH B1 presented by 1st Respondent clearly shows the purchase price being the total sum of N500,000.00, and same was signed in the presence of a witness. The fact that 1st Respondent was not led into possession immediately was clearly explained by the 1st Respondent in paragraph 7 and 9 of 1st Respondent’s statement of claim where he stated that his understanding with the Appellant was that the lease will end in March, 2012, and then he will be introduced as the new owner. Therefore, it is clear that possession was not handed over immediately to 1st Respondent, but he was aware of the lease.
On the issue of pledge contended by Appellant’s counsel, it is clear as day that the transaction in EXH B1 is not a pledge, and Appellant cannot by her oral evidence contradict the entry on EXH B1. The Appellant equally made a heavy weather of the failure of the 1st Respondent to present witnesses to validate his sale agreement with the Appellant. I know that a sale agreement must not be witnessed by a host of witnesses to be valid. The fact that EXH B1 is not contested, one witness signing same meets the requirement of the law regarding witnesses to the transaction. The most important point is that both Appellant and 1st Respondent signed EXH B1 and Appellant has not contested that she made it out of duress or she did not sign same.
On Appellant’s counsel’s contention that Appellant was in possession of the land at all material time of the transaction between herself and the 1st Respondent, it is clear from the pleadings that 1st Respondent was aware of the lease she had with 2nd Respondent and according to him, the land would be handed over to him as soon as the lease was terminated in March, 2012. Therefore, I agreed with the trial Court that Appellant was in a constructive possession based on the understanding she has with the 1st Respondent, and same will not vitiate the intent of the transaction in EXH B1 which I hold is an outright sale transaction and not a pledge arising from borrowing of monies.
In whole, I hold that even though there is no actual handing over of possession of the land in question to the 1st Respondent after the sale in EXH B1, I agree with the trial Court that same does not mean that the transaction between the Appellant and the 1st respondent was an outright sale, and I so hold. Therefore I resolve issue two against the Appellant.
ISSUE THREE
Whether or not the learned trial judge properly considered and evaluated the evidence on record to warrant his decision to enter judgment for the 1st respondent against the appellant and 2nd respondent. (Distilled from grounds 1, 5 and 6).
APPELLANT’S COUNSEL SUBMISSION
Counsel started his submission by stating categorically that it is clear from the pleadings that the case of the respondent who was the plaintiff before the lower Court was hinged on the fact that he bought plot in dispute No. 123, the subject matter of the suit from the appellant and that same therefore belongs to him which is not however supported by evidence on record before the trial Court.
This is so according to counsel as the main documents he relied upon in proof of his case are Exhibit B1 (an acknowledgement note showing receipt of money by the appellant from the 1st respondent) and Exhibit B2 (Certificate of Occupancy belonging to the appellant). Apart from the fact that Exhibit B is not a deed of assignment or conveyance, or an agreement of sale of land, or even capable of transferring any title, it was also not pleaded by the 1st respondent. Therefore same should be expunged from the record of the Court, same having not been pleaded.
That the facts relating to the making of Exhibit B are also not pleaded. The contents of Exhibit B2 were also denied by the appellant in her pleadings and in during evidence to the effect that the said document was meant to transfer title from her unto the 1st respondent. That the trial Court wouldn’t had entered judgment for the 1st Respondent if he properly appraised and evaluated the case before him.
According to counsel, the pertinent question which the trial Court flliled to ask and resolve is, if the 1st Respondent had entered into a transaction of outright sale of the land in dispute with the appellant, why was there no formal deed of assignment or agreement of sale of land executed between the parties? Why was there no witness for the appellant? Why was the 1st respondent not given actual possession of the property he purportedly bought from the appellant? When did the parties agree that possession will be handed over to the 1st respondent? Why didn’t the 1st respondent present any other witness to corroborate his claim that the land was sold to him? Could there have been a valid sale even when the subject matter was encumbered having been already leased out to the 2nd respondent?
That if these pertinent questions were left unanswered by the learned trial Court and they were not resolved, leaving room for a lot of speculation on the part of the Court. The trial Court having failed to evaluate the evidence adduced by the parties before arriving at the decision to prefer the case of the 1st Respondent, Counsel submitted that the decision arrived at was perverse and bound to be set aside. Counsel referred to the case of AMADI v. AMADI (2011) 15 NWLR (Pt. 1271) 437 at 463 paras G-H.
Counsel submitted that the judgment of the trial Court was devoid of any consideration of the case of the 1st Respondent, as apart from making a statement on record that he considered the case, there is no record of such consideration or evaluation of the contending cases on the printed records.
Counsel submitted that consideration of the case is not to be restricted to the Judge’s mind but must be put down on record for the appellate Court to see how the evidence for and against the cases were considered and evaluated since the appellate Court does not deal with what was in the mind of the trial judge but what he put down on record. Merely putting on record statements such as “I agree with the plaintiff’s case that the transaction between him and the 2nd defendant was for outright sale” without showing which evidence supported this claim and such evidence appearing on record but remaining in the mind of the judge does not amount to evaluation of evidence on record as required in the case of Odofin v. Mogaji (1978) 4 SC 91 at 93. Counsel also referred to the findings of the Court in Nkpa v. Nkume (2001) 6 NWLR (Pt. 710) 543 at 558 paras G-H per Ikongbeh JCA with regards to what evaluation of evidence is.
Counsel submitted that the trial Court did not consider the case of the 1st Respondent and properly evaluated the evidence before her and this is a proper case where this Court can interfere with the decision of the trial Court on issue of evaluation of evidence. Counsel referred to the authority of Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 3371) 172 at 189 and urge this Court to hold that had the trial Court properly evaluated the evidence before her, it would had arrived at a different conclusion from entering judgment in favor of the 1st Respondent against the Appellant.
1ST RESPONDENT’S SUBMISSION
Counsel on this issue commenced by adopting his argument under issue one and two on the basis that the trial Court was right to enter judgment in favor of the 1st Respondent.
On the issue of a formal deed of assignment, counsel submitted that the trial Court cited the authority of OHIAERI v. YUSUF & 5 ORS (2009) 2 SCJ 318 at page 151 of the records which is to the effect that an agreement for sale of land for which the purchaser, acting, within the terms of the agreement, makes full or part payment of the purchase price to the vendor and is put in possession, he has acquired an equitable interest which ranks as high as a legal estate.
On the why there are no witnesses for the Appellant, Counsel submitted that the lone witness Alfred Ungbea Abagi witnessed for both parties and that explains why his signature is positioned at the middle of the agreement. On why the 1st respondent was not given actual possession of the property upon purchase, Counsel submitted that the trial Court found that the 1st respondent was given constructive possession upon receipt of Exhibit B2.
On the issue of corroboration of the 1st respondent’s evidence, Counsel submitted that there is no law that requires the evidence of the 1st respondent to be corroborated before the Court will accept and act on his evidence. Moreover, the 1st respondent proved his case with documentary evidence which documents the appellant did not challenge.
On the issue of encumbrance invalidating the transaction, Counsel submitted that 1st Respondent stand by the trial Court’s findings that since the 1st respondent was aware of the existing lease but still went ahead to transact on the property which was subject of the lease; he is caught up with the rule caveat emptor and is deemed to have agreed that his rights over the property be subject to existing encumbrance the vendor (Appellant) has already created over the land.
On this note, Counsel submitted that it is clear that the trial Court carried out a thorough evaluation of evidence before arriving at a decision which this Court cannot disturb as it is trite law by the authority of Echere v. Ezikrike (2006) 5 KLR (Pt. 217 – 219) 1659 at 1669 that an appellate Court will not and must not reverse a finding of fact made by a trial Court unless such finding is not supported by the evidence and it is perverse. See also Olonade v. Sowemimo (2014) 5 KLR (Pt. 347) 1963 at 1977.
Counsel rounded up by submitting that the trial Court properly evaluated the evidence before arriving at it decision and same cannot be disturbed by this Court, and thereby urge this Court to resolve this issue in 1st Respondent’s favor.
RESOLUTION OF ISSUE THREE
On this issue, the Appellant rather commenced his argument by contending that EXH B was not pleaded by 1st Respondent and therefore it was not proper for the trial Court to have admitted same in evidence. However, a closer look at the intention of counsel submission will seem he is contending that EXH B1 which is the acknowledgment receipt as against EXH B, the statement of account of the 1st Respondent is what counsel is contending that it was not pleaded as seen in paragraph 4.3.4, page 22 of his brief where Counsel urged this Court to expunge Exhibit B1 and not EXH B which he said was not pleaded in paragraph 4.3.2 at the same page 22 of his brief.
In the midst of this conflicting contention of which document between EXH B and B1 is not pleaded, I am inclined to look at the 1st Respondent’s pleading before the trial Court, and I noted that 1st Respondent in Paragraph 4 pleaded the content of EXH B1 where he avers that he shall rely on the details of payment from 2010 – 2011 with the final payment on 25/6/2011. See page 5 of the record. A look at EXH B1, the document at page 14 of the record will show that it fits the description in paragraph 4 of 1st Respondent’s pleadings. Again a perusal of paragraph 5 of 1st Respondent’s statement of claim at page 5 equally shows that 1st Respondent also pleaded EXH B.
It is settled law that where a party pleads the content of a document or events or facts and circumstances leading to the making of a document, same suffice as sufficient pleading of that document. The document must not be specifically stated to be pleaded. Therefore, I do not agree with Appellant’s counsel that EXH B or EXH B1 as the case may be was not pleaded. See M.M.A. Inc. v. NMA (2012) 18 NWLR (Pt. 1333) 506 SC, wherein the Supreme Court, per Galadima JSC, explained the principle as follows- “The case of Day v. William Hill (Parklane) (1949) 1 KB 632 was cited with approval by the Supreme Court in Banque Genevoise De Commerce Et De Credit v. Cia Mar Di Isola Spetsai Ltd (1962) 2 SCNLR 310. The Court affirmed that a reference to a document in a pleading makes the document part of the pleading.” Documentary evidence need not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. See Arabambi v. Advance Beverage Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 SC, Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 SC.
On the contention of the Appellant that the question raised by the Appellant as to whether EXH B1 is a proper sale agreement in that it does not show transfer of purchase money, giving of possession and 1st Respondent did not show that the transaction was witnessed is a repetition of the issues contended by Appellant in issue two which I have dealt with and for the risk of repetition, I will stand by my holding under issue two.
I have considered the submission of counsel that the trial Court did not consider and evaluate the evidence of the Appellant by placing it side by side with the 1st Respondent’s case before reaching its decision and this made the trial Court findings perverse is gravely misconceived. I so hold because the Appellant did not identify the case made by the Appellant which the trial Court did not consider before arriving at its decision. It is not enough for counsel to just submit at large that the holding of the trial Court is perverse because the trial Court did not consider the case of the Appellant and cite authorities on the point without pointing out the case of the Appellant which the trial Court did not consider.
For sake of clarity, I have considered the judgment of the trial Court and I hold that same considered the case presented by both Appellant and 1st Respondent as it considers the Appellant’s defence that she borrowed monies from the 1st Respondent and that was why EXH B1 was made to which EXH B2 was handed over to 1st Respondent as a pledge. The trial Court clearly examined the content of EXH B1 and held that same is a documentary evidence which speaks for itself and same did not say Appellant borrowed monies from 1st Respondent with the understanding that when same is returned, the pledged EXH B2 will be return.
The trial Court equally examined the issue of lease made by Appellant and 2nd Respondent and the non-handing over of actual possession to the 1st Respondent. The Court clearly considered the issue of the lease and held that since the case of Appellant is that the 2nd Respondent and herself just entered into a second 5 years lease and 1st Respondent consent to the encumbrance, peacefully and quite possession can only be handed over to him after the 5 years lease is completed and that will be 2017 when it is counted from 2012.
I don’t agree with counsel submission that the trial Court was wrong to order the Appellant to hand over peaceful possession to the 1st Respondent in 2017 and not 2022, since the 2nd Respondent has not paid yet for that period of time, it is only equitable that after the expiration of the 2nd five years lease which started from 2012 to terminate in 2017, complete possession should be handed over to 1st Respondent. Therefore, I see no perversity in the holding of the trial Court as argued by Appellant.
On the whole, I find that the finding of the trial Court is not perverse and I see no reason to disturb the holding of the trial Court and this issue is resolve against the Appellant.
In conclusion, having resolved issues 1-3 against the Appellant, this appeal fails and it is hereby dismissed. The judgment of the lower Court Coram A.O. ONUM, J. delivered on the 30th day of June, 2014 in Suit No MHC/150/2013 is HEREBY AFFIRMED.
Cost of Eighty Thousand Naira (N80,000.00) is awarded against the Appellant in favour of the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.
Having determined issues 1-3 against the Appellant, it follows that the appeal lacks merit in its entirety. The appeal is therefore dismiss.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. I agree entirely with the reasoning and conclusion reached therein.
My learned brother has properly dealt with all the issues relevant for the determination of the appeal. The appeal is lacking in merit and should be dismissed and is hereby dismissed by me. The judgment of the trial Court, delivered by HON. JUSTICE A. O. ONUM J. on the 30th day of June, 2014 in suit no MHC/150/2013 is hereby affirmed. I abide by the costs awarded against the Appellant in favour of the Respondent.
Appearances:
…For Appellant(s)
…For Respondent(s)
