AYA & ORS v. OJEGO (2020)

AYA & ORS v. OJEGO

(2020)LCN/14799(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/G/347/2018

RATIO

EVIDENCE: EFFECT OF ADMITTED FACTS

With the foregoing, it means that the 1st Appellant agreed that the Respondent is the real owner of the disputed plot of land. See the British India General Insurance Coy Nig Ltd vs Thawardas (1978) LPELR 3165 where Obaseki JSC held
“where a Defendant admits a fact in dispute by his pleadings that fact is taken as established and forms one of the agreed facts of the case. Okparaeke vs Egbuonu (1941) 7 WACA pg 53.
It then follows that facts admitted need no futher proof Ehinlanwo vs Oke (2008) 16 NWLR pt 1113 pg 357. Per Ogunbiyi JSC,OLIYIDE Ltd vs O.A.U. Ile-Ife (2018) LPELR 43711, VEEPEE INDUSTRIES LTD VS COCOA INDUSTRIES LTD (2008) LPELR 346 pg 1 PINA VS MAI-ANGWA (2018) LPELR 44198 pg 1. APC VS JOHN (2019) LPELR 47003 IBRAHIM KANO VS GBADAMOSI OYELAKIN (1993) LPELR 1662 PER NDUKWE-ANYANWU, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE BY THE TRIAL COURT

This issue is rooted in the evaluation of evidence by the trial Court.
“Evaluation of evidence is therefore, the preserve of the trial Court. It is therefore the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See Buhari Vs INEC (2008) 19 NWLR pt 1120 pg 246, Adamu vs The State (1991) 4 NWLR pt 187 pg 530, Ezeani vs FRN (2019) LPELR 46800, Rhodes- Vivour JSC has this to say in Ayorinde vs Sogunro (2012) LPELR 7808.
“Evaluation of evidence comes in two forms
a. Findings of fact based on the credibility of the witnesses and
b. Findings based on evaluation of evidence.
In (a) an appeal Court should be slow to differ from the trial judge. After all it was he that saw and heard the witnesses, he watched their demeanor and so his conclusions must be accorded some respect. But in (b) an appeal Court is in as good a position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial judge should be accorded much weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the context of the surrounding circumstance of the case. That is evaluation. A finding of fact involves both perception and evaluation Obisesan vs Akintola (2014) LPELR 24053.
In Lafia L.G.A vs the Executive Governor of Nasarawa State (2012) LPELR 20602, Rhode-Vivour JSC also held
“Evaluation of evidence entails the trial judge examining all evidence before him before making his findings.
This is done by putting all the evidence on an imaginary scale to see which side appears to outweigh the other. See Mogaji vs Odofin (1978) 4 SC pg 91, Agbabiaka vs Saibu (1998) LPELR 222. PER NDUKWE-ANYANWU, J.C.A.

LAND LAW: EFFECT OF PAYMENT OF THE PURCHASE PRICE BY A PARTY

The payment of the purchase price by a party for property automatically confers a right on the party which right is enforceable unless otherwise determined. See E.F P. Coy Ltd vs NDIC (2007) pt 1039 SC pg 216.
The trial Court cannot rightly find that there was a purchase of the disputed property by the 1st Appellant as there was no purchase receipt or an agreement of sale or by any fact that shows that transaction did infact take place. See Adepate vs Babatunde (2002) 4 NWLR pt 756 pg 99. A purchase receipt is evidence that there was an agreement for sale of land and that the consideration for sale was paid by the purchaser. PER NDUKWE-ANYANWU, J.C.A.
LAND LAW: DISTINCTION BETWEEN SALE OF LAND IN NIGERIAN CUSTOMARY LAW AND SALE OF LAND UNDER THE RECEIVED ENGLISH LAW

In Commissioner of Land and Housing, Kwara State vs Atanda (2007) NWLR pt 1018 pg 360, the learned judge determined the distinction between sale of land in Nigerian Customary Law and sale of land under the received English Law and held:
“the condition for a valid sale are not same in both cases. Sale by agreement in writing is one of the absolutely necessary features of a valid sale under the received law. Under Nigerian traditional laws, such writing is unknown, and a valid sale of land usually comes about without it. No such thing as written contract or conveyance are necessary to a valid sale.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

BULAMA AYA 2. YA ALHAJI 3. MUKTAR MUSA 4. BABAN DIJE 5. MUSA ADAMU 6. MOHAMMED TUDUN WADA 7. ALHAJI IBRAHIM 8. BABA UMAR ALI 9. BABA KURA APPELANT(S)

And

ANTHONY OJEGO RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State in Suit No. BOHC/MG/CV/20/2017 delivered by Hon. Justice F. Umaru on 16th April, 2018.

The Respondent in this appeal was the claimant in the Court below and claimed the following;
a. A declaration that the Claimant is entitled to ownership/possession and interest in and over all the plot of Land laying and situate at pompomari Maiduguri, covered by statutory certificated of occupancy numbered BO/3322 to the exclusion of the Defendants.
b. An order of perpetual injunction restraining the Defendants either by themselves, agents, servants and privies from further trespass on the plot of land covered by statutory certificate of occupancy number BO/3322.
c. An order of this Honourable Court declaring that the Defendants are trespassers.
d. One million Naira (1,000,000.00) as general damages
e. Cost of the suit.

Pleadings were ordered and exchanged. The trial began with the Defendant/Respondent calling two witnesses Cw1 and Cw2 and testified as Cw3. The Defendant/Respondent in the course

of his testimony in evidence tendered, Exhibit A – the sale agreement between the Defendant/Respondent and one Alhaji Uwaisu Karni to whom the land was allocated to by the Borno State Government on 20th March, 1984.

Exhibit B – the Certificate of Occupancy issued in the name of the vendor Alhaji Uwaisu Karni.

Exhibit C – C8 – the Respondent’s counsel letter to the 9 defendants Appellants.

The Respondent testified for himself, called no other witness and tendered no other exhibits. The two parties filed their written addresses and the trial judge delivered his judgment on 16th April, 2018. The learned trial judge held as follows in his judgment:

On the whole, I hold that the Claimant’s claims succeed in part and accordingly make the following orders:
a. A declaration that the Claimant is entitled to ownership, possession and interest in and over all the that plot of land lying and situate at Pompomary Maiduguri, covered by statutory certificate of occupancy number BO.3322 to the exclusion of the Defendants.
b. An order of perpetual injunction restraining the Defendants either by themselves,

agents, servants and privies from the further trespassing on the plot of land covered by statutory certificate of occupancy number BO/3322.
c. An order that the Defendants are trespassers.
d. One million Naira (N1,000,000.00) general damages against the Defendants jointly and severally.
e. The Claimant is ordered to refund the sum of two million naira (N2,000,000.00k) paid by the 1st Defendant to the 1st Defendant.
f. Parties to bear their cost of the suit.

The Defendant being dissatisfied with the judgment filed a notice of appeal with five grounds on 13th July, 2018. The Appellants filed their Appellants’ brief on 23rd October, 2018 and deemed properly filed and served on 27th November, 2018. In it the Appellants articulated two (2) issues for determination as follows:
a. “Whether the Respondent has discharged the burden of proving his claim to be entitled to the reliefs sought”.
b. Whether or not the trial Court properly evaluated the evidence adduced before it by both parties to arrive at a just decision.
The Respondent in response filed his Respondent’s brief on 21st December, 2018 and

articulated two (2) issues for determination as follows :
a. Whether or not having regard to the pleadings and evidence before the lower Court the Respondent has not establish his case to be entitled to the judgement in his favour. (Distilled from grounds 1 and 2 of the grounds of appeal
b. Whether the lower Court has not properly evaluated the evidence of the witnesses before delivering judgment for the Respondent. (distilled from ground 4 of the grounds of appeal)

Brief statement of facts as recorded by the Respondent is that the Respondent as Claimant sued the Appellants as Defendants for declaration of title to a vast land covered by Statutory Certificate of occupancy number BO/3322.
The Respondent purchased the land in dispute from one Alhaji Uwaisu Karni to whom the land was allocated to by the Borno State Government on 20th March 1984. The land was sold to the Respondent via a sales agreement dated 7th October 2005. The sales agreement was admitted in evidence as exhibit A.
The 1st Appellant in this case purportedly claimed to have purchased the land from one Mallam Ibrahim and petitioned (sic) same into plots and sold to the 2nd

to 9th Appellants in this appeal.
In an attempt to establish his case the Respondent as Claimant called two witnesses and testified as Cw3 See page 50 to 57 of the record.

The judgment delivered is the reason for this appeal. The two issues articulated by both parties are similar in content, however, I will utilize the issues articulated by the Appellants, the owners of this appeal in the determination of it.

ISSUE 1
The learned counsel of the Appellants submitted that the Respondent’s root has to be established before any other subsequent proof in this appeal Runeenguno vs Ejebe (2007) 11 M JSC pt 138 pg 154, Registered Trustees of the Diocese of Aba vs Nkume (2002) FWLR pt 90 p 1270

Therefore, the Respondent has the burden to establish the sale by calling witnesses, i.e the vendor who sold the land to him as pleaded in Buba Vs Bukar (2003) FWLR pt 183 pg 38.

Counsel argued that the Respondent did not call any witness to prove that in fact he purchased the land in dispute from the original owner/allottee, See Deledeji Vs Osolo (2007) All FWLR pt 356 pg 310

Furthermore counsel submitted that where a person traces his root of

title to a particular person, he must further prove title of that person. See the case of Eyo vs Onuoha (2011) All FWLR pt 574 pg 1. In all, the Respondent had the burden of proving the sale of the disputed land to him.

Counsel thereafter, urged the Court to resolve this issue in favour of the Appellants.

The Respondent in proof of his claim called two witnesses and also testified for himself. In his evidence he tendered Exhibit A, the sale agreement properly signed by the vendor and the buyer, the Respondent. Both parties had one witness attesting to their signatures.

In proof of his title to the land in dispute, the Respondent relied on one of the five ways of proving ownership of the land in dispute. The Respondent tendered Exhibit B, the Certificate of Occupancy No. BO/3322 of the original allotee, Alhaji Uwaisu Karni. The Respondent also tendered in evidence, the sale agreement Exhibit A, which was not registered but duly signed and attested to.

The Respondent pleaded Exhibits A and B and the Appellants did not join issues with the Respondent, rather the 1st Appellant agreed that the Respondent is the owner of the disputed plot. The 1st

Appellant accepted this fact during cross examination. The 1st Appellant also agreed to pay the Respondent Four million, five hundred thousand naira (N4.5m) for the plot of land in dispute. The Respondent acknowledged that the 1st Appellant paid to SARS the sum of Two Million Naira (N2.0m) and refused to pay the balance of Two Million Five Hundred thousand Naira (N2.5m).

1662
By the admission of the 1st Appellant the dispute as to who is the owner of the disputed land is put to rest. This issue is therefore, resolved against the Appellants

ISSUE 2

The Appellants’ counsel submitted that the trial judge failed to evaluate material evidence placed before it. Counsel complained that the trial judge just summarized the evidence of the witnesses and addresses of counsel and proceeded to make its findings directly without considering each set of evidence given by the parties.

Counsel further submitted that the trial Court declared title of the land in dispute to the Respondent and neglected to avert to the following issues; That the 3 Cws contradicted themselves in terms of the amount paid by 1st Appellant to SARS for the purchase of the land. See Fubara vs INEC (2010) All FWLR pt 544 pg 176. Counsel believes that the contradiction is material and goes to the root of this appeal.

The Respondent admitted the fact that payment was made but denied collecting same. There was no document showing that the 1st Appellant was given one month to pay up the remaining balance.

Learned counsel to the Appellants

submitted that by the conduct of both parties they had created a contractual agreement. The Appellants argued that this contractual agreement was violated by the Respondent. The Appellants are bound to seek for an order of specific performance.

Counsel argued that the order the trial judge ought to have made is an order for specific performance compelling the Appellants to fulfill their obligation. Counsel argued that the trial judge held that the Respondent should refund the Two Million Naira (N2.M) naira the 1st Appellant paid to SARS. However, the 1st Appellant claimed that he had paid N2,350,000.00 but there was no receipt from SARS to ascertain the exact amount paid by the 1st Appellant.

Counsel further submitted that parties are bound by their pleadings and where a fact not pleaded is proffered, it ought to be expunged from the record of the Court.

Counsel also reiterated that a Court cannot create a contract for parties but rather parties create same and are bound by it.

Counsel also submitted that the Respondent was not in possession and as such the Respondent cannot succeed in trespass as he is not in absolute possession.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel therefore, urged the Court to resolve this issue in favour of the Appellants.

weight except found to be perverse. Trial Courts receive evidence. That is perception. It is then the duty of the Court to weigh the evidence in the context of the surrounding circumstance of the case. That is evaluation. A finding of fact involves both perception and evaluation Obisesan vs Akintola (2014) LPELR 24053.
In Lafia L.G.A vs the Executive Governor of Nasarawa State (2012) LPELR 20602, Rhode-Vivour JSC also held
“Evaluation of evidence entails the trial judge examining all evidence before him before making his findings.
This is done by putting all the evidence on an imaginary scale to see which side appears to outweigh the other. See Mogaji vs Odofin (1978) 4 SC pg 91, Agbabiaka vs Saibu (1998) LPELR 222.

In evaluating the material, evidence placed before the Court, it found that the 1st Appellant had admitted that the Respondent was indeed the owner of the disputed land. These facts need no further proof. The trial Court went ahead to appraise the remaining issues before it i.e. whether, the relationship between the parties could be described as contractual. It would be recalled that there was an understanding that the

1st Appellant should pay to the Respondent Four Million, Five Hundred Thousand Naira (N4.5m) and take over the land. He paid part of it to SARS.
Was there a sale of the disputed plot? The payment of the purchase price by a party for property automatically confers a right on the party which right is enforceable unless otherwise determined. See E.F P. Coy Ltd vs NDIC (2007) pt 1039 SC pg 216.
The trial Court cannot rightly find that there was a purchase of the disputed property by the 1st Appellant as there was no purchase receipt or an agreement of sale or by any fact that shows that transaction did infact take place. See Adepate vs Babatunde (2002) 4 NWLR pt 756 pg 99. A purchase receipt is evidence that there was an agreement for sale of land and that the consideration for sale was paid by the purchaser.
In this appeal the trial Court held rightly that there was no sale as the purchase price was not paid. There was also no agreement recorded by the parties. The 1st Appellant was insisting that there was a contract for sale but provided no evidence of such a transaction. He who asserts must prove.
The 1st Appellant claimed he paid to SARS a

total of N2,350,000.00 but there was no evidence to prove same.
It would be important to state that where there is a contract for sale of property particularly land, where part-payment was paid, the law is that the contract for the purchase has been concluded and is final, leaving the payment of the balance of the purchase price outstanding to be paid. The purchase is absolute and complete for which each party can be in breach for non-performance and for which action can be for specific performance. See Gege vs Nande (2006) 10 NWLR pt 988 pg 256.
In Commissioner of Land and Housing, Kwara State vs Atanda (2007) NWLR pt 1018 pg 360, the learned judge determined the distinction between sale of land in Nigerian Customary Law and sale of land under the received English Law and held:
“the condition for a valid sale are not same in both cases. Sale by agreement in writing is one of the absolutely necessary features of a valid sale under the received law. Under Nigerian traditional laws, such writing is unknown, and a valid sale of land usually comes about without it. No such thing as written contract or conveyance are necessary to a valid sale.

The payment of purchase money and the delivery of possession are enough. Ogunbambi vs Abowaba (1951) 13 WACA pg 222. Aminu vs Ogunyebi (2004) 10 WWLR pt 882 pg 457.
Under native Law and Custom, the requirement for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land by the vendor to him. It is not necessary to have a written contract or conveyance as under the English law.
In the present appeal, the 1st Appellant was not in conformity with any law. The 1st Appellant did not pay the purchase price of Four million, five hundred thousand naira (N4.5m), No receipt of any payment did he extract from the Respondent. There was also no agreement. Anything the parties had between them was so loose that it cannot be described as contractual.
The trial judge appraised all the materials placed before him in evidence. He could not decipher any contract of sale to bind the parties. Where there is no contract of sale, the Court cannot order for specific performance as canvassed by the Appellants.
I believe that the trial Court properly evaluated all the material evidence placed before it.

I see no reason why this Court will interfere with and re-evaluate such evidence. Adebayo vs Adusei (2004) 4 NWLR pt 862 pg 44.

Finally, the two (2) issues articulated by the Appellants have all been resolved against them. This appeal is unmeritorious. It is dismissed. I affirmed the judgment of the lower Court. I also adopt the orders (a) – (d).
a. A declaration that the Claimant is entitled to ownership, possession and interest in and over all the that plot of land lying and situate at Pompmomari, Maiduguri, covered by Statutory Certificate of Occupancy number BO/3322 to the exclusion of the Defendants.
b. An order of perpetual injunction restraining the Defendants either by themselves, agents, servants and privies from the further trespassing on the plot of land covered by Statutory Certificate of Occupancy number BO/3322.
c. An order that the Defendants are trespassers
d. One Million Naira (N1,000,000.00) general damages against the Defendants jointly and severally.

The Court also hereby assessed the cost to the Respondent at Two Hundred and Fifty Thousand Naira (N250,000.00).

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead Judgement of my learned brother, Ndukwe-Anyanwu, J.C.A.
By the authority of Idundun V Okumagba (1976) 10 SC 277, the locus classicus on the issue of land, title can be proved by one or more of the following five methods:
1. Proof by traditional history or traditional evidence of the history of the land, which includes mode of acquisition of same, for instance, by deforestation of the virgin forest by the first settler, conquest of the original owners through acts of war, gifts, e.t.c.
2. Proof by grant or the production of documents of title to the land.
3. Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are the true owners of the land.
4. Proof by acts of long possession.
5. Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute.
See also Iseogbekun V Adelakun (2012) LPELR-15516(SC) 28-29, G-D, per Mukhtar, JSC; Dakolo V Rewane-Dakolo (2011) LPELR-915(SC)

23-24, E-D, per Rhodes-Vivour, JSC; Odunze V Nwosu (2007) LPELR-2252(SC) 67, C-F, per Onnoghen, JSC.

The facts in evidence in the instant appeal disclose that the Respondent (as Claimant before the trial Court) produced both his receipt of purchase for the land in dispute (Exhibit A), as well as the Certificate of Occupancy from his root of title, i.e. the original allottee of the land, Alhaji Uwaisu Karni (Exhibit B). The purchase receipt (Exhibit A) is evidence that there was an agreement for the sale of land and that consideration for the sale was paid by the purchaser. This endows upon the purchaser an equitable interest in the land, thereby giving him an equitable title.

In addition to this, the Respondent again offered in evidence a valid registered instrument of grant, to wit: a Certificate of Occupancy, Exhibit B, which vests in him a legal interest in the land. He therefore succeeded in establishing his title by means of one of the five ways enumerated above, namely, the production of title documents.

On the other side of the imaginary scale, the 1st Appellant admitted upfront that the Respondent is the owner of the land. All that was

subsequently offered by the Appellants in proof of their interest in the land is evidence through witnesses that they paid the Respondent the sum of N2, 350, 000.00 for the land. This sum is said to have been paid through SARS. However, no evidence in the form of a cash receipt was produced to substantiate this claim and the Respondent denied receiving this sum.

In addition, the trial Court found as a fact that based on the agreement between the parties, the understanding was that the Appellant should pay to the Respondent the sum of N4, 500, 000.00 for the land in question. However, even though the Respondent agreed that the sum of N2, 000, 000.00 was paid to SARS, as afore-said, he denied that it was given to him.
Thus, from the totality of the evidence adduced before the trial Court, the Appellants were unable to prove any contractual agreement between them and the Respondent that would entitle them to the land in dispute. Contrary to the contention of their Counsel, the trial Court properly appraised the evidence adduced by the parties and ascribed probative value thereto in arriving at its findings. The Appellants having not adduced any

evidence to prove either full or partial payment for the land, the Court could not have found otherwise. There was no agreement between the parties and so, no justification for an order for specific performance of any contract.

The law is trite that where a trial Court has unquestionably evaluated/appraised the evidence and properly ascribed probative value thereto, an appellate Court will not interfere to substitute its views for the views of the trial Court – Okoye V Obiaso (2010) LPELR-2507(SC) 15, F-G, per Onnoghen, JSC; Anyegwu V Onuche (2009) LPELR-521(SC) 14-15, C-A, per Muhammad, JSC; Ayeni V State (2016) LPELR-40105(SC) 31, C-E, per Kekere-Ekun, JSC.

Thus, for these reasons and the more detailed reasons in the lead Judgement, I find the appeal devoid of merit. It is dismissed.
I abide by the consequential orders made in the lead Judgement, inclusive of the Order as to cost.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. My Lord’s review of the record of appeal based on the submission of Counsel on the vital issues for determination was thorough. The conclusion

therefore reached by him is unimpeachable. I adopt it. The appeal is therefore without merit, and is hereby dismissed.

I abide by his Lordship’s order on costs.

Appearances:

M. HUSSAINI, ESQ. For Appellant(s)

A. SANGEI, with him, M. S. UMAR and I. H. ABDULLAHI, ESQ. For Respondent(s)

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