BELLO MAIGADAJE v. OTHNIEL SULEI & ORS
(2018)LCN/12230(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2018
CA/YL/41/2016
RATIO
EVIDENCE: THAT A PARTY MUST PROVE OWNERSHIP OF LAND
“It is also settled that to succeed in a case for declaration of title to land, a party must plead and prove the method by which he acquired the said title. Ownership of land cannot be claimed without establishing that ownership. See Fasoro v Beyioku (1988) 2 NWLR (Pt.76) 263, Nwofor v Nwosu (1992) 9 NWLR (Pt.264) 229, Onwugbufor v Okoye (1996) 1 NWLR (Pt.424) 252, Oyeneyin v Akinkugbe (2010) 4 NWLR (Pt.1184) 265. ” PER ADZIRA GANA MSHELIA, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“As regards the attitude of appellate Court regarding evaluation of evidence, the position of the law is that it is the duty of the trial Judge to evaluate the evidence and make primary findings of fact. This duty unless it is shown not to have been done according to well laid down principles of law an Appeal Court cannot interfere with such findings. See Iriri v Erhurhobara (1991) 2 NWLR (Pt. 173), Igago v The State (1999) 14 NWLR (Pt. 6371) 1, Archibong v FBN Plc (2014) LPELR 22649 (CA) Madaki v Ciroma & Ors (2016) LPELR 40268 (CA).” PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
BELLO MAIGADAJE Appellant(s)
AND
1. OTHNIEL SULEI
2. LINUS LABAN
3. MR. YERIMA DANZARIA
4. MELA DANJIN
5. DR. JAMES EMMANUEL
6. DANIEL H. ALI
7. ROTIMI S. IBINOLA DELE
8. MRS.TINAS MAISHANU
9. MR.AHMED GARTA
10. MR. APOLOS ILIYA
11. DR. JOSEPH HUSSAINI
12. MRS. MILKATU FANTAYA
13. MRS. GRACE MACDONALD G.
14. A.D. MAHDI BANGANJE
15. GARBA SHEEGARY
16. HAMMAN IBRAHIM
17. NASIRU M. YELMA
18. TITI S YAMMA
19. JOSEPH ALPHONSUS Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of High Court of Justice Gombe State holden at Gombe, delivered by Hon. Justice H.A. Barka on 29th day of July, 2013, wherein his Lordship, granted most of the plaintiffs’ reliefs and validated the sales of land between the parties to this appeal and further confirmed title to the said land on the Plaintiffs/Respondents.
The plaintiffs now Respondents filed a writ of summons and statement of claim before the High Court of Gombe State claiming the following reliefs against the defendant now Appellant as follows:
a) A declaration that the plaintiffs are vested with title over that piece of land situate at Tunfure (officially known as Wuro Juli Area) approximately 200 feet from the High Court Complex Kumo – Gombe Road Akko L.G.A Gombe State divided into 50 x 100 feet plots of 23 units.
b) A declaration that the sales of land between the plaintiffs and defendant covered by the agreement dated 09/05/2005 is valid in law.
c) A Perpetual injunction restraining the defendant in person or his agents, servants, privies or heirs from tampering with the peaceful occupation of the plaintiffs piece of land.
d) The sum of Five Million (N5,000,000,00) Naira as general damages.
e) Cost of this action and incidental expenses.
Upon being served with the statement of claim defendant filed a statement of defence and counter-claim. The defendant as per the counter-claim sought for the following reliefs against the plaintiffs:
a) A declaration that the defendant is still the right full owner of the land situates at Wuro Juli opposite Gombe bye pass junction, Gombe – Kumo Road, Akko Local Government Area of Gombe State.
b) A Declaration that the act of the plaintiffs wit: unlawful trespassing into the defendants land and dig a trench therein constitutes trespass.
c) AN ORDER for the payment of the Five Hundred Thousand Naira (N500,000.00) as general and exemplary damage).
Parties having joined issues, trial commenced. Plaintiffs in proof of their case called eight witnesses and tendered two Exhibits. The plaintiffs’ case was that sometimes in March, 2005 the defendant advertised his land through one Ahmadu Tukur for sale.
They showed interest in the land and organized themselves as a group for the transaction. They negotiated and the land was sold to them at units of 50 x 100 feet per plot at N17,000 each. The plaintiffs bought 23 units at a total cost of N391,000.000, paid cash as written agreement was entered between the plaintiffs and defendant. The payment of consideration and agreement was done at the palace of the village Head of Tunfure after they had seen and measured out the entire plots at the site. According to the plaintiffs the agreement was endorsed at different dates by the buyers and fully executed at the palace on the 09/05/2005 in the presence of six witnesses.
The defendant on the other hand called three witnesses and tendered two Exhibits. The defendant’s case was that he had never offered for sale and or transacted with the plaintiffs for the purchase of the land in dispute or any other land. The defendant also asserted that he had never delegated Ahmadu Tukur or any other person to sell to the plaintiffs the land in dispute or any other land. That he only authorized Ahmadu Tukur to sell only 10 and not 23 plots.
At the end of the proceedings, Judgment was entered in favour of the plaintiffs.
Not satisfied with the Judgment defendant lodged his appeal to this Court vide his Notice and Grounds of Appeal filed on 01/08/2013 containing five Grounds of Appeal.
In compliance with the rules of Court parties exchanged their respective briefs of argument. Appellant’s amended brief of argument settled by Aliyu Usman Barde Esq., was dated 25/10/2017 and filed on 02/11/2017. While Respondent’s brief of argument settled by Emmanuel Nwaekwe Esq., Harrison Hassan Esq., Urbarus James Thaba Esq. and A.A Gwandum Esq., was dated 12/04/2018 and filed on 18/04/2018 but deemed properly filed on same date. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Appellant’s counsel J. P Dukut urged the Court to allow the appeal. While Harrison Hassan urged the Court to dismiss the appeal.
In the Appellant’s brief of argument four issues were distilled for determination as follows:
i. Whether the trial Gombe State High Court was right to have admitted and relied on the evidence of PW4 and PW5 in confirming the sale of the land in dispute. (Distilled from Ground One).
ii. Whether the Plaintiffs/Respondents who claimed to have bought the land in dispute through the Defendant/Appellant’s purported agent established or prove to the Court the existence of any agency relationship or its scope. (Distilled from ground two).
iii. Whether the purported transaction between the purported Defendant/Appellants agent and the plaintiffs is valid in law.
iv. Whether considering the written agreement on oath of Milkatu Fantays (The 12th plaintiff and PW2) vis-a-vis her oral testimony in cross-examination, the trial Court Gombe State High Court was right to have conferred title on the portion of the land in dispute to her despite the material contradiction existed therein. (Distilled from ground four).
The respondent on the other hand formulated two issues for determination as follows:
1) Whether the respondents established the agency relationship between the Appellant and Ahmadu Tukur. Grounds (1) and (2).
2) Whether the Respondents discharged the weight of evidence placed upon them to sustain the Judgment in their favour. Distilled from grounds 3 & 4.
I have examined the issues raised by Appellant. I am inclined to adopt his issues being the appellant in determining this appeal. However in the course of resolving the issues, I will also treat the two issues raised by the Respondent.
ISSUE 1
In arguing this issue, learned counsel for the Appellant referred to the testimony of PW4 and his answer under cross-examination recorded at page 73 of the record. His contention was that written statement of PW4 was written in English but it does not contain illiterate jurat. That the sworn statement of PW4 does not comply with Section 3 of the Illiterate Protection Act. He placed reliance on Gundiri v Nyako (2014) 2 NWLR (Pt.1391) 211 at 242 paras C-E. Learned counsel further submitted that PW4 unequivocally confirmed to the Court that he was not a witness to the sale of the land in dispute and does not even know where the land situates is an incompetent witness. Counsel contended that PW4’s evidence is hearsay and inadmissible in law. Cited in aid Doma v INEC (2012) 13 NWLR (Pt. 1317) 297 at 240 paras c and case of Gundiri v Nyako (supra) where it was held that
“Where a witness gives an account of an information which is not within his personal knowledge, he will not be accredited as a competent witness”.
That the trial Court was erroneous in considering the evidence of PW4 in affirming the sale of the land merely because the said PW4 informed the Court that he was informed by the Defendant that he sold the land to the plaintiffs. Counsel further contended that PW5 confirmed to the Court that he did not witness the transaction, counsel submitted that the evidence of PW5 is also inadmissible being hearsay evidence. See Ajadi v Ajibola (2004) 16 NWLR (Pt.898) 9 at 118 ratio 41, where it was held that hearsay evidence has no evidential value. Counsel submitted that the Gombe State High Court was not right when it relied on the evidence of PW4 and 5 in confirming the sale of the land in dispute.
ISSUES 2 AND 3
The two issues were argued together by Appellant’s counsel. Counsel submitted that the Respondents by their statement of claim avers that the defendant advertised his land for sale through one Ahmadu Tukur. That Respondent did not plead that they bought the land through Ahmadu Tukur, even though some of their witnesses contended so. Similarly counsel argued that Respondents did not also plead the existence of any agency between the Appellant and Ahmadu Tukur, but it was made an issue by their witnesses.
Learned counsel submitted that Appellant denied authorizing Ahmadu Tukur to sell his land which fact was also contained in Appellant’s averment in the statement of defence. That despite the fact that the Appellant denied authorizing anybody to sell his land, the Respondents’ did not deem it appropriate to file a reply in denial and subsequently prove to the Court that Ahmadu Tukur actually acted as the Defendant’s/Appellants’ agent. Counsel contended that in a transaction of this nature, which is predicated on a representation or agency, the plaintiff must plead and proof the existence of the agency more especially when the Appellant categorically made it clear in his statement of defence that he did not authorize anybody to sell his land to anybody.
That with the existence of an agency, counsel, contended that purported transaction between the purported Appellant’s agent and the Respondents is not valid in law.
That it is elementary principle of law that he who assert must prove. That the Respondents having asserted that they bought the Appellants land through his agent must prove to the Court the existence of the said agency.
Counsel further contended that there are material contradictions in the testimonies of the witnesses. Reference was made to testimony of PW5 and paragraph 7 of the statement of claim. Counsel posed a question as to who transacted for the plaintiffs’ Whether they transacted with appellant or through representative. That answers to these questions are of utmost importance since it is the basis or crux of this case which is on the fact as to whether there was a transaction between parties to this appeal or not. That this also determines whether the contradictions are material or not.
ISSUE 4
In arguing this issue, learned counsel submitted that the trial High Court of Justice Gombe State conferred title to the land in dispute to all of the plaintiffs including the 12th Plaintiff/Respondent; That 12th Respondent’s written statement on oath can be seen in page 44 of the record, while her oral testimonies in answer to the questions put her in cross examination appeared on page 83 of record. That PW2 contended under cross-examination that the transaction was made personally between her and Bello Maigadaje. That the witness also stated that it was not Ahmadu that sold the land to her. According to counsel these facts were at variance with her written statement on oath which alleges that she bought three unit of 50 x 100 feet each at N17,000.00 from Appellant through Ahmadu Tukur on 09/05/2005. See paragraph 2 of her own sworn statement at page 41. For the oral evidence see lines 16-17 page 83.
Counsel maintained that the facts contained in the statement of claim were at variance with the evidence led in favour of the 12th Respondent. That 12th Respondent clearly stated that the transaction took place between her and Bello Maigadaje not Ahmadu Tukur. That the evidence of PW2 did not only contradict other evidence on material issues but is at variance with the pleadings. That where the averments in the pleadings is at variance with the evidence led, it goes to no issues and should be disregarded. Reliance placed on Otanma v Youdubagha (2006) vol. 134 VLRCN 362 at 367 paras U-Z. He urged the Court to so hold.
The Respondent’s responded under the two issues formulated by them. I will treat the two issues together under issue 1. Learned counsel submitted that it is trite that a defendant acting on behalf of a known and disclosed principal inures no liability even where the disclosed principal is a foreigner. That a contract made by an agent acting within the scope of his authority for a disclosed principal is the proper person to sue or be sued and not the agent upon the contract. See Osigwe v PSPLS Management Consortium Ltd & Ors (2009) 37 (Pt. 2) NSCQR 841 and Edward Okwejiminor v Gbakeji and NBC Plc (2008) 33 (Pt.2) NSCQR 863 at 927. Reference made to paragraph 4 of the statement of claim at page 3 of the record and paragraph 11 at page 4 of the record.
Counsel contended that when issues arose, the Respondents assembled on site, produced their various agreements wherein the defendant stated that he only authorized Ahmadu to sell 10 and not 23 plots. Learned counsel submitted that the Respondents from the pieces of evidence available have established the agency relationship between the Appellant and Ahmadu Tukur clearly on the balance of probabilities and the trial Court rightly affirmed this facts as contained in the Judgment at page 131 paras 2.
He urged the Court to resolve the issue in favour of the respondent. Under issue two, learned counsel submitted that the position of the law is that in our adversarial system of litigation, the law always places the burden of proof in civil matters on the plaintiff/claimant/petitioner/applicant as the case may be, to satisfy the Court by leading concrete, cogent and valid evidence with a view to establishing his claim. See Oredila Okeya v Biu (2014) 57 (Pt.1) NSCQR 230 at 254-255.
Counsel submitted that it is also trite that whereas a legal burden of proof remains throughout on the claimant to establish his case otherwise he loses his claim, the evidential burden of proof in a case fought on the pleadings rests on the party who asserts in the affirmative and shifts depending on the pleadings of the parties at each turn. See Odom v PDP (2015) 61 (Pt.2) NSCQR 984 at p 1038, learned counsel submitted that the Respondents established every single paragraph of the claim and without contradictions.
According to counsel PW1 vide his sworn testimony established paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the claim. See page 7 of the record.
Counsel further submitted that Respondent clearly established the facts of a valid purchase of this land from the Appellant. That PW1, PWII, PWIII, PWIV, PWV, PWVI, PWVII and PWVIII all testified in one breadth to the effect that they validly bought the land from the Appellant and same was properly validated vide a sales agreement which was acknowledged as in Exhibit 1 & 11. Counsel noted the testimony of PW2 at pages 83 paragraph 2 of the record. It was argued that a critical study of the record and reconciling the testimonies and Exhibits tendered will clearly suggest the following:
a) There is valid sale of land between the Appellant and Respondents.
b) Plaintiffs have been in peaceful occupation of the land without let or hindrance since 2005.
c) The palace of the village Head of Tunfure is in full knowledge of the transaction and certified same. That Respondents efficiently discharged the burden placed upon them by law. See S. 133-134 Evidence Act 2011, Udih v Idemudia (1998) 56/57 LRCN 3188 Ratio 2, 8, 9, 10 and 11.
Counsel referred to the testimonies of PW4, who witnessed the sale. See page 76 of the record and testimony of PW5 who tendered the original sales agreement as identified by PWI-PWVI which sustains the valid ingredients of sales of land under custom. That includes:
a) Payment of purchase price
b) Purchaser is let into possession by vendor.
c) In the presence of witnesses.
See Adenomu v Aderumi (2000) 79 LRCN 2153 R4. Counsel submitted that all the ingredients are manifestly fulfilled in the present circumstances and which remained certain and operative since 09/05/2005 without challenge. Counsel also referred to the effective manifest acts of possession over the land since 2005 which includes planting of beacons therein and farming on the land since 2005. See page 79 paragraph 4, testimonies of PW7 page 40 & 48, 78 & 79 of the record and Exhibits 3 & 4 as tendered by the appellant which he submit are facts in prove of declaration of title to land. Reliance placed on Dakolo v Dakolo (2011) 46 NWLR (Pt.2) 669 at 690-711. He urged Court to resolve issue in favour of the Respondents.
Finally counsel submitted that appellate Court will not interfere with the Judgment of trial Court or its appraisal of evidence except in circumstances of perversity and it is clear that respondent proved their case and the findings of the trial Court are supported by credible evidence that established ownership and possession and which are methods title is provable. He urged Court to so hold and dismiss appeal as lacking in merit. Cited in aid Abiana & Ors v Antigha & Ors (2010) 11 NWLR 267 para 25.
On the Appellant’s counter claim counsel submitted that appellant only belabors effort at defending the case of the Plaintiffs/Respondents without an iota of effort to prove his counter- claim. Counsel urged the Court to hold that Appellant has no defence to this case and dismiss same.
It is settled law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper Judgment is for the other party.
See Ugoji v Onukogu (2005) 16 NWLR (Pt. 950) 97, Ashiru v Olukoya (2006) 11 NWLR (Pt.990) 1, Ogunjemila v Ajibade (2010) 11 NWLR (Pt.1206) 559, Orianzi v Attorney General, Rivers State (2017) 6 NWLR (Pt.1561) 224.
A claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities. See Abaye v Ofili (1986) 1 NWLR (Pt.15) 134, Ugwunze v Adeleke (2008) 2 NWLR (Pt.1070) 148, Momoh v Umoru (2011) 15 NWLR (Pt.1270) 217.
This onus on a claimant does not shift and must be discharged by clear, emphatic satisfactory and cogent evidence. See Kaiyaoja v Egunla (1974) 12 SC 55, NITEL Plc v Rockonoh Property Co. Ltd (1995) 3 NWLR (Pt.378) 473, Ezinwa v Agu (2004) 3 NWLR (Pt. 861) 431, Yusuf v Adegoke (2007) 11 NWLR (Pt.1045) 332.
Once the claimant fails to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant. See Awomuti v Salami (1978) 3 SC 105, Olowosago v Adebanjo (1988) 4 NWLR (pt. 88) 275, Ajibona v Kolawole (1996) 10 NWLR (pt. 476) 22, Sosan v HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt.861) 546.
It is also settled that to succeed in a case for declaration of title to land, a party must plead and prove the method by which he acquired the said title. Ownership of land cannot be claimed without establishing that ownership. See Fasoro v Beyioku (1988) 2 NWLR (Pt.76) 263, Nwofor v Nwosu (1992) 9 NWLR (Pt.264) 229, Onwugbufor v Okoye (1996) 1 NWLR (Pt.424) 252, Oyeneyin v Akinkugbe (2010) 4 NWLR (Pt.1184) 265.
The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to;
(a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise, and
(b) Evidence establishing the nature of the title claimed. See Obawole v Coker (1994) 5 NWLR (Pt.345) 446, Adesanya v Aderonmu (2000) 9 NWLR (Pt.672) 370 at 382, Edohoekat v Inyang (2010) 7 NWLR (Pt.1192) 25, Obineche v Akusobi 12 NWLR (Pt.1208) 383.
The Appellant in this case claimed ownership of the land in dispute. That he acquired the disputed land by way of purchase from one Baba Gajere Dankoli who initially cleared it and possessed same free from all encumbrances. Appellant denied selling the land in dispute to the Respondents.
The Respondents on the other hand contended that Appellant sold 23 plots of land in dispute through his agent at a rate of N17,000.00 each totaling N391,000.00. The transaction is evidenced by a sale agreement covering 23 plots of land, marked Exhibit 1 and same signed on the 09/05/2005 by the seller, buyers and witnesses.
Respondents as plaintiffs at the lower Court jointly called eight witnesses, and tendered two Exhibits, namely: sales agreement and sketch map of the individual plots. The defendant now Appellant gave evidence and called two other witnesses. PW1 is Othniel Suleiman. He is the first plaintiff in this case. He stated that around the month of March 2005, he was informed by one Alphonsus that the defendant has a piece of land to sell through one Ahmadu Tukur. He and 18 others showed interest, negotiated and bought the land, partitioned into 23 plots of 50 by 100 feet at the cost of N17,000.00. The sale agreement was made at the palace of the Village Head of Tunfure on the 9th of March 2005, and each of them has a sale agreement, with the sketch plan attached to it. He said he has been in peaceful occupation of the land, up to February, 2011 when the defendant commenced making trouble over the land. The witness stated that the offer for the sale of the land was made to them by one Ahmadu Tukur whose whereabouts he does not know.
The witness continued to say that Bello Mai Gadaje (Appellant) signed as the seller, as Tukur took it to him to sign. PW2 confirmed that she bought the land together with the other plaintiffs. PW3 stated that he bought a piece of land in dispute measuring 50 by 100 feet. He placed beacons on the land and he has been in peaceful enjoyment until February 2011, when defendant stepped in to stop them erecting a perimeter wall. PW4 is Mallam Adamu Usman, the Village Head of Tunfure Village. He said sometimes in February, 2011, the defendant came with a complaint against the plaintiffs over a piece of land for settlement. He invited the parties and after hearing them asked the defendant to hands off the land as it belongs to plaintiffs. He made enquiries from the palace and was told that the plaintiffs bought the land from the defendant sometimes in 2005. PW5 Manu Usman Bello, Ward Head of Tunfure as well as a member of the Village Heads Council, confirmed that the land was sold to the plaintiffs at N17,000.00 per plot of 50 by 100 feet. He said Ahmadu Tukur told him he was given one plot as gratification, and he signed the agreement as a witness.
He said the transaction took place between the representative of the plaintiffs and the representative of the defendant. He said he was not present during the transaction. That defendant presented Ahmadu Tukur as his agent. He also confirmed that the document was signed in his room. PW6 testified that he is aware of the fact that his brother organized the plaintiffs sometimes in the year 2005, to buy the land from the defendant through Ahmadu Tukur.
He has since been in control of the plot on his brother’s demise, until when the defendant surfaced claiming the land. PW7 testified that he bought land from the defendant on the 9th of May 2005. He bought the land from the defendant. That he was in peaceful enjoyment of the land until sometimes in 2011, when the defendant surfaced to claim the land. He confirmed sale of the land to them by one Ahmadu. PW8 confirmed that he and other plaintiffs bought a piece of land from the defendant through Tukur.
The defendant opened his defence and called DW1 who testified that he knows the land in dispute that same was sold to defendant by one Baba Gajere Dankoli. He said the defendant partitioned the land into plots and sold 10 plots to representative of Respondents. DW2 defendant testified that he bought the land from Baba Gajere Dankoli, who initially cleared it, free from any encumbrance. He said he once demanded Ahmadu Tukur to get him buyers of ten plots which he did and transacted directly with the representatives of the buyers. He denied selling any portion of his land to plaintiffs. The witness continued and denied signing a document in Arabic. He also denied appointing Tukur as his agent. DW3 adopted his deposition which is same as that of DW1.
I deliberately summarized the evidence adduced by both parties, so as to have a clear picture of what transpired at the lower Court. Both parties gave evidence in line with their pleadings.
The complaint of the Appellant under issue one is of no moment. The testimony of PW4 in my view is not hearsay.
PW4 is a competent witness and the Court rightly relied on his testimony to confirm the sale to the Respondents. It was the Appellant who went to his palace to complain about the Respondents of the alleged trespass. It was during the course of investigating the matter he confirmed that the land in dispute belonged to the respondents. I cannot see how his testimony would be considered as hearsay evidence. In Oke v Agunbiade & Ors (2011) LPELR ?CA/AK/EPT/OS/HR/5/2011, this Court stated that statement on oath of the witness once adopted in Court becomes his evidence in Chief. However such evidence must still be tested as to its probative value.
As regards the complaint in respect of the illiterate jurat, it has to be noted that the sole essence of the illiterate protection jurat is to protect the illiterate and not to hurt him. See Lawal v Akande (2009) 2 NWLR (Pt. 1126) 425 @ 429, UBN Plc v Idrisu (1999) 7 NWLR (Pt.609) 105. It is therefore the law that only illiterate can challenge the content of a document where he sign as an illiterate without jurat. It is on record that the statement was interpreted to him from English to Hausa so it cannot be said that PW4 was misled by the content of the deposition. See paragraph 16 of PW4 deposition appearing at page 29 of the record. Issue 1 is accordingly resolved in favour of the Respondents.
As regards issue 2, the contention of the Appellant is that in a transaction of this nature, which is predicted on representation or agency, the plaintiff must plead and proof the existence of agency more especially when the appellant categorically made it clear in his statement of defence that he did not authorize anybody to sell his land to anybody. Respondents on the other hand contended that it is trite that a defendant acting on behalf of a known and disclosed principal inures no liability even where the disclosed principal is a foreigner. Their contention is that a contract made by an agent acting within the scope of his authority for a disclosed principal is the proper person to sue or be sued and not the agent upon the contract. See Osigwe v PSPLS Management Consortium Ltd & Ors (2009) 37 (Pt. 2) NSCQR 841. The Respondents clearly averred in paragraph 4 of the statement of claim that Appellant advertised his land through Ahmadu Tukur for sale.
Paragraph 11 of the statement of claim also disclosed that the agreement was executed in the presence of Mallam Ahmadu Tukur as one of the witnesses. It is worthy to note the averment of the Appellant in paragraph 3(c) of his statement of defence wherein he averred thus:
“The defendant knew as a fact that he once demanded Tukur to get him buyers of ten plots that were carved out of the disputed land which he did and the said Ahmadu Tukur brought them to the defendant who transacted directly with them through their agent.”
This averment showed that Appellant only authorized Ahmadu to sell 10 and not 23 plots. The Respondents also confirmed that it was Ahmadu Tukur that advertised the land for sale. I agree with Respondents counsel that these pieces of evidence available have established the agency relationship between the Appellant and Ahmadu Tukur clearly on the balance of probabilities. Contrary to the submission of Appellant’s counsel the transaction between the Appellant’s agent and the Respondents is valid in law. I cannot see any material contradiction in the testimonies of the witnesses as portrayed by the Appellant. I will also resolve this issue in favour of the Respondent.
As earlier stated the burden of proof is on the claimant (Respondents) to establish by cogent and credible evidence, the ownership of the 23 plots in dispute. He who asserts must prove. The Respondents had adduced credible evidence to show that they purchased the 23 plots from the Appellant through his agent at a rate of N17,000.00 each, totaling N391,000.00. The evidence of PW1, PW4 and PW5 clearly show that there was a transaction of sale of land in dispute between the Appellant and the Respondents. Although the Appellant denied selling any plot to the Respondents, Exhibit 1 the sales agreement which is a documentary evidence confirms the sale transaction. This sales agreement includes the name of the 12th Respondent.
The Inconsistency in her testimony and her statement on oath complained of by the Appellant is not material in my humble view. Oral evidence comes in handy to throw more light on documentary evidence. There are plethora of case law on this issue. See Vincent U. Egharevba v Dr. Orobor Osagie (2009) 18 NWLR (Pt. 1173) 299; Fashanu v Adekoya (1974) 6 SC 83, Kimdey & 11 Ors v The Military Governor of Gongola State & Ors (1988) 2 NWLR (pt. 77) 445 and Ndulue v Ojiakor (2013) 8 NWLR (Pt. 356) 311. The denial of the Appellant that he did not sell the plots to the Respondents cannot hold water. Exhibit 1 clearly disclosed the name of the Appellant as the seller of the 23 plots of land on 09/05/2005. Appellant did not prove that he did not execute Exhibit 1 the sales agreement. The testimonies of PW1-PW8 and Exhibit 1 clearly established valid ingredients of sales of land under custom, which includes:
a) Payment of purchase price
b) Purchaser is let into possession by vendor,
c) In the presence of witnesses.
The pieces of plots were sold to the Respondents in 2005. They paid the purchase price as evidenced by the sales agreement Exhibit 1 and the sales agreement was duly executed in the presence of witnesses and the Appellant himself signed as vendor. The Respondents have been in peaceful possession since 09/05/2005. The village head of Tunfure (PW4) is in full knowledge of the transaction and confirmed same that the land now belonged to the Respondents since Appellant sold same to them, Appellant in paragraph 3c of his statement of defence and paragraph 4 of his sworn testimony stated that he once demanded Ahmadu Tukur to get him buyers of ten plots carved out of the disputed land, which he did, and the said Ahmadu Tukur brought them to him and he transacted directly with them through their agent.
This in my view supports the claim of the Respondents that Appellant authorized his agent Ahmadu Tukur to sell the plots on his behalf. From the facts and circumstances, I hold the firm view that there was a valid sale of land between the appellant AND Respondents. The Respondents had in my view and as rightly concluded by the learned trial Judge discharged the burden of proof placed on them on the balance of probabilities. They also solely proved their case on the strength of their own case and not on weakness of the defence. I wish to note the finding of the learned trial Judge appearing at page 129 lines 24 page 130 lines 1-5 of the record wherein he said thus:
“I do therefore in the circumstances rule and hold that the plaintiffs have upon a preponderance prove that there was a sale of land in dispute to the plaintiffs by the defendant; and I so hold. I am cushioned on this regard in the holding of the Court of Appeal, in the case of Mohammed v Mohammed (2012) 11 NWLR (Pt. 1310) 1 at 42 per Ogunmiwiju, JCA ‘where a party enters an agreement with his eyes open, and received consideration which he never returned to the other contracting party, equity will come in to stop him from retracting the agreement. He cannot be allowed at that stage having benefited to refuse to give consideration to the other party by passing title to the property to him.” See also the case of Dantala v Dantala (2002) 4 NWLR (Pt. 756) 144, Okafor v Soyeni (2001) 2 NWLR (Pt.698) 465.”
The above finding cannot be faulted. The Respondents are therefore entitled to the declaration of title to the 23 plots purchased by them from the Appellant.
Appellant filed a counter-claim appearing at page 27 of the record. A counter-claim is a separate action which has to be proved by the Defendant/Appellant by adducing cogent and credible evidence. The reliefs claimed are as reproduced earlier in this Judgment. Appellant made effort to defend the case of the plaintiff, but there is no iota of effort to prove the counter-claim. It seems Appellant has no defence to this case and I so hold.
As regards the attitude of appellate Court regarding evaluation of evidence, the position of the law is that it is the duty of the trial Judge to evaluate the evidence and make primary findings of fact. This duty unless it is shown not to have been done according to well laid down principles of law an Appeal Court cannot interfere with such findings. See Iriri v Erhurhobara (1991) 2 NWLR (Pt. 173), Igago v The State (1999) 14 NWLR (Pt. 6371) 1, Archibong v FBN Plc (2014) LPELR 22649 (CA) Madaki v Ciroma & Ors (2016) LPELR ? 40268 (CA).
There is no evidence to show that the appraisal of evidence was not properly conducted by the trial Court. The findings were not shown to be perverse. I am satisfied that respondents proved their case and the findings of the trial Court are supported by credible evidence which proved that Respondents are entitled to declaration of title as the owners of the plots in dispute. This Court has no reason to interfere with the Judgment of the trial Court. I will accordingly resolve the issues in favour of the Respondents.
In the result, I find no merit in this appeal. Same is dismissed. I will award N50,000.00 costs in favour of the Respondents.
TANI YUSUF HASSAN, J.C.A.: I have read in advance the judgment justice delivered by my learned brother, ADZIRA GANA MSHELIA, PJCA. My Lord has exhaustively dealt with the issues that have arisen in the appeal. I agree with the reasoning and conclusion dismissing the appeal for lacking in merit. I abide by the order as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: My learned brother ADZIRA GANA MSHELIA, JCA., (PJ) had earlier given me his lead judgment to read and I agree with his reasoning and conclusion. I am also of the opinion that the appeal lacks merit; accordingly, I also dismiss it.
I abide by the order as to costs as contained in the lead judgment.
Appearances:
J.P Dakut holding brief of Usman Barde, Esq.For Appellant(s)
Harrison Hassan, Esq.For Respondent(s)
