DOGO v. ADAMU (2020)

DOGO v. ADAMU

(2020)LCN/14328(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/J/115/2006

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

ILIYA IBRAHIM DOGO APPELANT(S)

And

ALHAJI SAIDU ADAMU RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THE PROVISIONS OF THE CONTRACT OR AGREEMENT

Now, to the pertinent question as to whether the transaction between the parties was a pledge or Agreement for conditional sale of the pledged property, there is no doubt and the law is trite on the cardinal principles of the law of contract as was decided in the case of A-G. Rivers State V. A-G. Akwa Ibom State (2011) 3 SCNJ 1 at 28 paras. 5-10 per Katsina-Alu, JSC; relying on Arjay Ltd. V. Airline Management Support Ltd. (2003) F. W. L. R. (pt. 156) 943 at 900; where the Apex Court had earlier held that:
“It is elementary law that where parties have entered into a contract or an agreement, they are bound by the provision of the contract or an agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement.”
In Nwaribe V. Owerri Municipal Council & Ors. (2015) LPELR – 24433 (CA), I had cause to also pronounce on this doctrine that parties of full age who have voluntarily entered into an agreement are bound by the terms and conditions of the contract and neither of the parties can alter the terms unilaterally, nor can the Court add, alter or subtract or read into the contract terms that the parties themselves did not agree upon. This doctrine of the law of contract is what has been referred to as the sanctity of contract, usually expressed in the Latin maxim “Pacta Sunt Servanda” which means “agreement must be kept.” Umah V. Akpabio (2014) 7 NWLR (pt. 1407) 472; Best (Nig) Ltd. V. B-H (Nig.) Ltd (2011) 8 NWLR (pt. 1248) 31; JFS Investment Ltd. V. Brawal Line Ltd (2010) 19 NWLR (pt. 1225) 495; Alade V. Alic Nig. Ltd. (2010) 18 NWLR (pt. 1226) 111 and indeed the case of A-G. Rivers State V. A-G. Akwa Ibom State (supra) ably cited the learned counsel to the Respondent. PER AGUBE, J.C.A.

WHETHER OR NOT AN APPELLANT WHO HAS BY HIS CONDUCT MADE A PROMISE TO A RESPONDENT THAT IS INTENDED TO AFFECT THEIR LEGAL RELATIONS AND THE RESPONDENT HAVING ACTED UPON IT, SHOULD BE ALLOWED TO REAP THE BENEFIT OF SUCH PROMISE

The law is trite and there is no doubt that ordinarily an Appellant who has by his conduct made a promise to a Respondent that is intended to affect their legal relations and the Respondent having acted upon it, should be allowed to reap the benefit of such promise. Moreover, the Appellant ought to accept the consequences of the terms of their transaction. The authorities of Nwaolisah V. Nwabufoh (2011) 6 SCNJ 530 at 532, Nigeria Bank V. Integrated Gas (2005) 1 SCNJ 104 at pages 108 – 109, Kaydee Ventures V. Hon. Minister (2010) 2 SCNJ 276 at 278 – 279; Akinyemi V. ODU’A Investment (2012) 1 SCNJ 127 at 131 (S.C.); Mini Lodge V. Ngei (2009) 12 SCNJ 92 at 96 and Best V. Blackwood (2011) 1 SCNJ 282 at 285-286; cited by the learned counsel to the Respondent may have rightly decided on the enforceability of a valid contract where time is of the essence and the need to comply with the time stipulated. PER AGUBE, J.C.A.

THE DOCTRINE OF PERPETUAL REDEEMABILITY

It must be noted that even though time is of the essence, by the doctrine of perpetual redeemability, time cannot run against the redemption of the pledge property. See Kofi V. Kofi (1933) 1 WACA 284, Orisharinu V. Mefice (1937) 13 N. L. R. 181, Ifeanyi V. Adighoghu (1957) 2 E. R. L. R. 38 at 39; Leragun V. Funlaya (1955 – 56) W. R. N. L. R. 167. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision/judgment of the High Court of Justice Nasarawa State Holden at Lafia which judgment was delivered on the 3rd day of August, 2005 by the Honourable Justice Isa A. Ramalam granting the Plaintiff now Respondent’s Reliefs of specific performance and perpetual injunction as claimed in paragraph 24 of his Amended Statement of Claim dated the 20th April, 1998.

Dissatisfied with the Judgment of the learned Trial Judge, the Defendant appealed by a Notice of Appeal with 9(Nine) grounds dated and filed on the 2nd September, 2005 as reproduced hereunder without their respective particulars:
“GROUNDS OF APPEAL:
1. The learned trial Judge erred in law when he held that the pledge transaction between the parties changed into a sale transaction by payment of additional sums of money and the failure of the Defendant to pay back the sum of N20, 000.00 to the Plaintiff on or before the end of June, 1992.
2. The Trial Court erred in law when it made a case for the Plaintiff and this occasioned a miscarriage of justice.
3. The trial Court erred

in law when it held as follows:
“The Defendant in this case did not sufficiently deny the allegation of sale of the house at N22, 000.00 and to that effect Exhibit 2 was written.”
4. The Trial Court erred in law when it refused to rely on the evidence of DWII on the ground that the Defendant did not plead his presence during the search of the Plaintiff to refund the pledge money.
5. The Defendant was denied fair hearing when the trial Court refused to grant his applications to amend his pleadings on two different applications for amendments.
6. The learned trial Judge erred in law when he held that there was proof by oral evidence to establish the commencement date of the undated EXHIBITS 2 & 2A.
7. The trial Court erred in law when it held that the Plaintiff took possession of the disputed house through a sale as he was allowed to be collecting rents from tenants.
8. The lower Court erred in law when it relied on EXHIBITS “A” and “A2” without evaluation of the Exhibits and other pieces of evidence tendered before it; and
9. The decision of the lower Court is against the weight of

evidence.”

By a writ of summons dated the 20th day of July 1992 and the accompanying Statement of Claim dated the 5th day of August, 1992 which was eventually amended by an Amended Statement of Claim, the Respondent who was then the Plaintiff sought for the following Reliefs against the Appellant who was then the Defendant in paragraph 24 of the Amended Statement of Claim dated 20th April, 1998 but said to have been filed on 13/5/1998 with leave of Court thus:-
“24. Wherefore the (sic) Defendant seeks the following reliefs:
(a) An order of specific performance.
(b) A perpetual injunction restraining the Defendant, his Agents, privies or whomsoever from interference with the house and premises which is situate at Tudun Kawari Off Makurdi Road, Lafia.
(c) Cost of this action.”

The case of the Respondent as Plaintiff in the lower Court was that in January, 1992 the Defendant/Appellant through one Angulu Jatau whom he (Appellant) held out as his Agent approached him for a loan of N10,000.00 (Ten Thousand Naira) and pledged his house as security. The Defendant/Appellant was said to have come back to him (The

Respondent) for an additional sum of N10,000.00 (Ten Thousand Naira) through his said Agent/brother upon the promise to pay back the total sum of N20,000.00 borrowed on/or before 30th June, 1992 but that it was further agreed by the parties, that failure on the part of the Appellant to pay back the said sum as at when due would entitle the Respondent to take full ownership of the property with the Respondent paying additional sum of N2,000.00 to the Appellant to make up a total sum of N22,000.00 as the purchase price of the House/property, the subject matter of the Suit/Appeal. Page 39 of the Records refers.

It was the further case of the Respondent that the duo reduced the terms and conditions of the deal into a written agreement for sale of a house (Exhibits 2 and 2A refer). According to the Respondent, upon the expiration of the agreed deadline for the refund of the said loan, the Appellant’s Agent Angulu Jatau was given the balance of N2,000.00 which was paid accordingly and the Respondent gave the Agent an additional N400.00 as a La’ada indicative of the transfer of interest or to create a binding contract under the custom and tradition

of the people of Lafia. Lines 11-15 of the pages 96-97 of the Records refer as well as page 44 line 12. The Respondent also alleged that in a bid to commence repairs in the property after depositing trips of sand on the land he was prevented by the Appellant (page 44 lines 15-17 of the Records refers).

It was also the Respondent’s case that by a letter from the Appellant’s solicitor inviting him (the Respondent) to the Chambers of the said Solicitor, to come and collect the money loaned to the Appellant, Respondent then took the letter to his (Respondent’s) Counsel who wrote back and later instituted an action against the Appellant on 13th July, 1992 for the relief sought in both the Writ of Summons and Amended Statement of Claim.

At the trial, the Respondent testified and called three Witnesses and tendered documentary Exhibits at the end of which the learned trial Judge granted him all the Reliefs sought by the judgment now on appeal.

The case of the Appellant on the other hand, was that in January 1992, he received the said sum of N20, 000.00 in two batches whereof he pledged his house, the subject matter of the dispute. He

conceded entering into an agreement upon receipt of the first instalment of N10, 000.00 but denied any other later agreement after the second instalment of N10,000.00. He admitted collecting N20,000.00 from the Respondent through Angulu Jatau (the PW3), as the remaining balance/part of the transaction. The pledge of the house was to be for 6 (Six) months and he gave N600.00 to the Respondent as interest. He was to refund the whole amount N20,000.00 (Twenty Thousand Naira) in six months time but when it was eight days to the expiration of the six months, two of his (Appellant’s) children, Halilu and Kasunmu came back from a journey and expressed their displeasure with the Agreement, so they gave him (Appellant) N20,000.00 to refund to the Respondent.

The Appellant narrated how he took his son Iliya to the PW3 and the three of them went to the Plaintiff’s premises and as they got there, the PW3 went into the house and stayed for a long time and when he came out he informed the Appellant and his son that the Respondent was not in the house. They went back with the PW3 to the Respondent’s house the second and third times but did not see the

Respondent and the Appellant became angered and gave the money to the PW3 to keep for the Respondent but the PW3 refused to collect same after the PW3 had refused earlier to collect money to go in search of the Respondent. The PW3 told the Appellant to keep the N20,000.00 so the Appellant took the money back. Two days after, the Appellant went to Barrister Yusuf and narrated what happened and then deposited the money with the lawyer who told one of his boys to go along with the Appellant’s boy (Iliya) to the Respondent and give him (Respondent) the said sum. The boys went but could not find the Respondent.

After three days attempt to find the Respondent to no avail, the said Appellant’s lawyer wrote a letter to the Respondent to inform him to come and collect his money whenever he returned from where ever he went from Barrister Yusuf. The letter from the Chambers of Yusuf S. Usman & Co dated 2nd July, 1992 was tendered admitted and marked Exhibit 4 while the Reply thereto from the Chambers of Doka Barrister & Solicitors dated 6th June, 1992 for the Respondent was also admitted and marked Exhibit 5. It was his further case that after a

day of his lawyer writing to the Respondent, he received a summons from the Respondent. He insisted that he was not aware that he agreed for the Respondent to renovate the house before the expiration of the agreement. He also admitted that he was aware that the Plaintiff, Respondent then gave the PW3 the balance of N2,000.00 to bring to him the (Appellant) and he collected the money. He denied mandating PW3 to go and collect N2, 000.00 to bring to him, neither did he agree that they shall go to a lawyer to write a final agreement when he returned from the farm. Finally, the Appellant testified in-chief that the N20,000.00 was still with his Lawyer and he had never collected any balance of N2,000.00 (Two Thousand Naira) from anybody but only pledged his house to the Plaintiff so his house cannot be given to the Respondent. He prayed the Court to dismiss the case.

Upon transmission of the Record of Appeal and entry of same on 4th May, 2016, Briefs of Argument were exchanged by the respective learned counsel to the parties. In the Appellant’s Brief dated and filed on the 12th day of April, 2018 but deemed properly filed on 9th May, 2018, O.C. Ucheaguwa

Esq; who settled same, distilled six (6) Issues for determination couched as reproduced hereunder from the 9 (Nine) Grounds of Appeal thus:
“ISSUES FOR DETERMINATION
ISSUE NUMBER ONE:
Whether the original contract transaction between the parties having been agreed upon and found to be a pledge of the landed property in issue, the sum in law does not remain perpetually a pledge until redemption? (Distilled from Grounds 1 and 2 of the Notice of Appeal).”
ISSUE NUMBER TWO:
Was the learned trial Judge right when he held that the Defendant/Appellant did not sufficiently deny the allegation of sale of the house at N22, 000.00 having due regards to the pleadings filed before him? (Distilled from Ground 3 of the Notice of Appeal).
ISSUE NUMBER THREE:
Was the learned trial Judge right in law when he refused to use the testimony of DW2 (Iliya Ibrahim) called by the Appellant/Defendant on the ground that the witness’s name was not pleaded? (Distilled from Ground 4 of the Notice of Appeal).
ISSUE NUMBER FOUR:
Whether the Defendant/Appellant was not denied fair hearing when the trial Court refused his

application to amend his pleadings when the trial was still going on? (Distilled from Ground 5 of the Notice of Appeal).
ISSUE NUMBER FIVE:
Was the trial Court right in ascribing probative value to the documents admitted as Exhibits 2 and 2A in spite of the fundamental defects raised against these documents during trial? (Distilled from Grounds 6 and 8 of the Notice of Appeal).
ISSUE NUMBER SIX:
Was the trial Court right in his findings on possession of the property in question to the Respondent and the overall case presented by the Respondent/Plaintiff?(Distilled from Grounds 7 and 9 of the Notice of Appeal).”

On the part of the Respondent, P.C. Dinak, Esq., with Chukwuma Ezeani, Esq who settled his Brief of Argument dated and filed on the 2nd day of November, 2018 but deemed filed on 13/5/2019; adopted the Six Issues nominated by the learned Counsel to the Appellant as above reproduced. At the hearing of the Appeal on the 18th of March, 2020 the learned Counsel to each of the parties adopted their respective Briefs of Argument including the Appellant’s Reply Brief dated and filed on the 7th of November, 2018 but deemed

properly filed on the 13th of May, 2018 to urge us to either allow the appeal or dismiss same.

ARGUMENTS OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER ONE (1):
The learned Counsel to the Appellant on this first issue, prefaced his Argument with the finding of the Court at page 225 lines 23 to 25 of the Records/page 26 of the judgment that the initial transaction was a pledge agreement entered into by the parties as per the document admitted as Exhibit 3 at the trial but that the subsequent position that led to the two grounds from which this issue was distilled was when he held as he did at pages 225/6 lines 26 to 30 of the Records/Judgment as quoted in page 7 paragraph 4.04 of the Appellant’s Brief. In contesting the above findings, the learned Counsel submitted that the initial agreement having been admitted to be a pledge of the disputed house, all the settled legal positions on a pledge were brought into play from the moment the agreement was entered into.

By this position afore stated, it was further submitted that even if there was a further Agreement by the parties, the further agreement in so far as the initial pledge

subsisted, unredeemed, was un-enforceable. To buttress his stance, he placed reliance on the golden rule of a pledge being always a pledge as was decided by the Supreme Court in OKOYE V. OBIASO (2010) 22 WRN Pg. 39 para. H1 as well as KOFI V. KOFI (1933) 13 WACA 284; AMOO V. ADIGUN (1957) 2 WRNLR 55 and IFEANYI V. ADIGHOGU (1957).

On the position of the law that the golden rule aforestated does not provide for any option or circumstances where parties can amend, alter or relax any condition governing a pledge the authorities of POLO V. OJOR (2003) 3 NWLR (Pt. 807) Pg. 344 at 347 para H2 (CA). ADJEI V. DIBANKA (1930) 1 WACA 66; OKOIKO V. ESEDALUE (1974) 3 SC (Pt. 15) 355 paras E-F; were cited and relied upon to further submit that the Court below did not find through the judgment now on Appeal that the initial pledge was discharged/redeemed to enable parties enter into fresh agreement rather the Court held that the initial pledge was not redeemed but crystallized into a sale agreement after a further agreement in Exhibit 2 entered into by the parties.

According to the learned Counsel, what the Court described as a further agreement was the demand and

receipt of additional N10,000.00 from the Respondent with the same initial terms of the pledge for six months adding that even if we agree that there was a further agreement of sale of the disputed property upon failure to redeem the N20,000.00 which they did not concede, the agreement for sale is still not enforceable in the light of the subsisting pledge agreement as the Appellant is expected to exercise his right of redemption over the subsisting pledge before further agreement. DURUOSHIMIRI V. DURUODUNZE (2001) 9 NWLR (Pt. 717) 244 at 251 was cited where the Court applied the definition of a valid contract as enumerated in the case of ORIENT BANK (NIG). PLC V. BILANTE INTER. LTD. (1997) 8 NWLR (Pt. 515) 37 at 76; to conclude that there was no valid contract in the earlier cited case.

The learned Counsel to the Appellant also argued that we should come to the conclusion that any sale agreement in a subsisting pledge is a void transaction when further considering that the position of a seller of property who freely wants to sell his property is different from that of pledgor, who was compelled to part with his property because the pledgee who is at an

advantageous position introduced an un-acceptable position to dispossess the pledgor of his property thus introducing a clear case of undue influence that vitiates an agreement.

For the definition of undue influence, he placed reliance on USMAN BUA V. DAUDA (2003) 3 NWLR (Pt. 838) 657 to further submit that there was no agreement of the mind of the parties in this case in the alleged sale transaction which is a vital ingredient of a valid contract. AKINYEMI V. ODUA INVESTMENT (2012) 1 SCNJ 127 at 131 Ratio 7 and 8 where the Supreme Court pronounced on the three essentials to the creation of a valid contract were relied upon in so submitting.

The learned Counsel also argued that in so far as there was an agreement to refund the total sum borrowed upon expiration of six months, the Appellant was entitled to notice a few days before commencement of action by the Respondent which was not done in this case. He recalled that the Respondent testified that he began the taking step on 1st July, 1992 and even brought the suit now on Appeal on 13th July, 1992 after ignoring all the notices served on him to receive his money which attitude of the Respondent

demonstrated that he was more interested in taking the house pledged to him than receiving his money. Finally, the learned counsel submitted on this issue that no matter how long this suit lasted the Respondent had nothing to loose by receiving his money that was made available at the end of June, 1996 and in the view of the learned Counsel to the Appellant the learned trial Judge was in error to have granted the Respondent’s Reliefs as sought. We were therefore urged to allow the appeal on this issue and set aside the judgment of the lower Court.

ARGUMENT OF LEARNED COUNSEL ON ISSUE NUMBER TWO (2):
Arguing this Issue, the learned Counsel to the Appellant drew our attention to the position taken by the lower Court that Appellant as Defendant at the trial did not sufficiently deny the allegation of sale of the house at N22,000.00. Page 226 lines 9 and 10 page 21 of the Records/Judgment were referred to, in submitting that this position influenced the overall findings of the learned trial Judge in holding that the original pledge transaction metamorphosed into a sale, thus occasioning the Appellant a miscarriage of justice. He adopted his

argument on the first issue in part to the extent that an original pledge cannot metamorphose into a sale under any principle, without the redemption of the pledge money.

Arguing further specifically on this Issue, the learned Counsel referred us to paragraphs 5, 7 and 8 of the Appellant’s Statement of Defence filed on 6th October, 1993 where the Appellant pleaded facts on the sale of his house which according to Counsel are vigorous denials which the trial Court discredited for being insufficient. He maintained that even though he refused the Appellant’s Application for Amendment of his Defence, these depositions adequately represent his (Appellant’s) position on the sale of the pledged property.

The learned Counsel contended that in proof these depositions, he testified as DW1 and the additional Witness called by him also maintained their stand that he never agreed to the sale of his property at N22,000.00 to the Respondent and on the document admitted as Exhibit 2 denied the existence of any written agreement between him and the Respondent nor did he sign same with his son Iliya (Page 74 lines 9-10 refers). He then maintained

that from the answer to cross-examination as reproduced in paragraph 4.24 of the Appellant’s Brief, the Appellant sufficiently denied the sale of the house but the Court below faulted the Appellant’s position as not sufficient.

On the trite law that a trial Court should not weaken the case of a party in order to strengthen the other party’s case, he submitted that what is sufficient as it relates to answers to pleadings is relative depending on the Judge the only grade being that the answers to the pleadings should not be evasive which is not the case here in the averments of the Appellant. Referring specifically to the denial by the Appellant as having not signed it, thereby placing the onus on Respondent who asserted this allegation to call Witness in proof thereof which he failed to do, he called in aid the case of TRADE BANK PLC V. CHAMI (2003) 13 NWLR (Pt. 836) 158 (CA). Furthermore the learned Counsel alluded to the fact that in Exhibit 3, the Appellant accepted same as submitted that a close look would reveal that the Appellant thumb printed and same was handwritten but wondered why an alleged subsequent one made a few weeks later

came out typed with a mark provided for the Appellant instead of the usual thumbprint.

On the whole, he urged us to hold that the Appellant did not also call credible evidence to prove same and accordingly allow the appeal.

ARGUMENT OF LEARNED COUNSEL TO APPELLANT ON ISSUE NUMBER THREE (3):
In his argument on this issue, the learned Counsel referred us to pages 76, 77, 78, 79 and 80 of the Records which contain the evidence of the DW2 (Iliya Ibrahim) and the rejection thereof by the learned trial Judge. According to the learned Counsel, the said witness was so vital to the defence of the Appellant as the said witness corroborated the account on the steps the Appellant took towards the end of June, 1992 to trace the Respondent and pay him the N20,000.00 borrowed. The learned Counsel also urged us to recall that in paragraphs 9, 10 and 11 of the Appellant’s Statement of Defence he averred that before the end of June, 1992 he paid several visits to the Respondent’s house to redeem the pledge to no avail as the Respondent was avoiding him (Appellant) which led to his (Appellant) briefing the Legal Firm of Yusuf Usman & Co. and

depositing the N20,000.00 with the Principal in Chambers.

It was submitted that having pleaded these visits the Appellant had the right and the law allowed him to call any other additional person who participated in the visits or had knowledge of it which was what he did when he called the DW2 (Iliya Ibrahim) but that the trial Court held that the DW2’s name was not pleaded in paragraph 9 of the Appellant’s Statement of Defence as a result of which the Court discredited the entire evidence of the DW2. He maintained that the failure to mention the name of the DW2 as one of those who accompanied him to the Respondent for the purpose of the refund did not bar the Appellant from calling the DW2 as erroneously held by the Court below. Thus, according to the learned Counsel, the Rules of pleadings require facts and not evidence or names of persons to be pleaded. For this submission he relied on the authorities of UKAEGBU V. UGOJI (1991) 6 NWLR (Pt 196) 127 SC, ONWUKA V. OMOGUI (1992) 3 NWLR (Pt. 230) 393 and EZEMBA V. IBENEME (2005) 1 NWLR (Pt. ?) PG. 305 RATIO 3 and 4; where the Supreme Court held that a party is required to prove his case by

calling the best evidence available.

The learned Counsel submitted that it was not in dispute that the same witness featured prominently as he was there as a witness to his father in the agreement admitted as Exhibit 3, his signature and name were equally inserted in the disputed agreement in Exhibit 2 which Exhibit was accepted in spite of opposition and acted upon yet the same Court held that his oral evidence had no evidential values. He further asserted that the learned trial Judge’s findings on the testimony of the DW2 is perverse moreso, when the witness was not discredited in the course of cross-examination that he never accompanied his father to the Respondent’s house in June, 1992.

On the purport of perverse finding and the need for trial of Courts to regard evidence that has not been discredited under cross-examination as credible and reliable that ought to be accepted and relied upon, he placed reliance on the cases of IROLO V. UKA (2002) 7 SCNJ 138 at 141 H:9 (S.C.) where the Apex Court described a perverse finding as one that occasioned a miscarriage of justice and OGUALAJI V. ATTORNEY-GENERAL (1997) 5 SCNJ 240 at 243 H:1,

AIKHIONBARE V. OMOREGIE (1976) 12 SC Page 1. NWABUOKU V. OTTIH (1961) ALL NLR Page 487 and ULEGEDE V. MILITARY ADMINISTRATOR OF BENUE STATE (2001) 2 NWLR (Pt 696) P.23.

Finally, on this Issue the learned Counsel to the Appellant insisted that the evidence of DW2 is in line with the facts pleaded by the Appellant in his Statement of Defence and therefore the trial Court erred in law to have discredited the totality of the DW2 and not even on the point of contention that his name was not added in paragraph 9 of the Statement of Defence. We were therefore urged to resolve this Issue in favour of the Appellant and allow the Appeal on the Grounds for which it was distilled.

ARGUMENT OF LEARNED COUNSEL ON ISSUE NUMBER FOUR (4)
On this Issue, the learned Counsel to the Appellant alluded to the fact that in the course of trial, the learned trial Judge allowed the Respondent to amend his Statement of Claim but refused a similar Application by the Appellant to amend his Statement of Defence. References were made to Order 26, Rules (1) (2) and (3) of the Plateau State High Court (Civil Procedure) Rules applicable to Nasarawa State High Court then which

allowed a party to amend his pleadings any time in the proceedings; AMANSO V. RTDTC (2009) 17 NWLR (PT. 170) p. 207 at 21 paras. A-D was relied upon to submit further on the authorities of AKOH V. ABUH (1988) 3 NWLR (Pt. 85) 686 at 712 and EHIDIMHEN V. AHMADU MUSA & ANOR (2002) 2 NSI 4E Page 367 Holden 4 and 5; that when a Court is empowered to do anything at any stage of proceedings, it can do the thing at any time before its final judgment and an amendment can be granted so as to make evidence previously given to fall in line with the pleadings.

He pointed out that the amendment sought by the Appellant was brought in the course of the pending suit and the Appellant did not seek to introduce new issues but to simply reflect the Defence of the Appellant to the Respondent’s claim where appropriate yet, the Court rejected same but that in the course of his Judgment, the learned Trial Judge faulted Appellant’s case on account of insufficient averment and failure to plead the name of a witness. The learned Counsel submitted therefore that the position of the learned trial Judge would have been different had he considered the application for

Amendment judiciously and judicially and allowed the amendment of Appellant’s process.

On the whole, it was submitted that it is/was a total display of denial of fair hearing for the trial Judge to deny the Appellant the amendment sought and proceed to fault the Appellant’s case on his pleading and we were urged therefore on the authorities of SALEH V. MONGUNO (2003) 1 NWLR 221 at 233 (CA) on the need to give parties equal treatment and opportunity on the need to consider evidence of a party which is not discredited under cross-examination as credible and reliable that ought to be accepted and relied upon, he placed reliance on the cases of IROLO V. UKA (2002) 7 SCNJ 138 at 141 H:9 (S.C.); where the Apex Court described a perverse finding as one that occasioned a miscarriage of justice and OGUALAJI V. ATTORNEY-GENERAL RIVERS (1997) 5 SCNJ 240 at 243 H: 1, AIKHIONBARE V. OMOREGIE (1976) 12 SC Page 1. NWABUOKU V. OTTIH (1961) ALL NLR Page 487 and ULEGEDE V. MILITARY ADMINISTRATOR of Benue State (2001) 2 NWLR (Pt. 696) P. 23.

Finally, on this Issue, the learned Counsel to the Appellant insisted that the evidence of DW2 is in line with the facts

pleaded by the Appellant in his Statement of Defence and therefore the trial Court erred in law to have discredited the totality of the evidence of DW2 and not even on the point of contention that his name was not added in paragraph 9 of the Statement of Defence. We were therefore urged to resolve this Issue in favour of the Appellant and allow the Appeal on the Ground from which it was distilled.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER FIVE (5)
Arguing this Issue, the learned Counsel to the Appellant recalled that during trial, Respondent tendered a Hausa version and translated English version of the Agreement allegedly entered into by the parties in this appeal and admitted as Exhibits 2 and 2A respectively which two documents were brought by the Respondent to buttress his position that a sale of the property now in dispute was contracted during the existence of the pledge of the said property the contention that the sale will crystallize should the Appellant fail to redeem the pledge. Learned Counsel pointed out that it is on the strength of the said Exhibits 2 and 2A that the Respondent prayed for specific performance which

the Court below granted the Respondent, hence this Appeal.

The learned Counsel alluded to the complaint of the Appellant that neither he nor his witness Iliya Ibrahim ascribed to him signed Exhibit 2 (Page 74 lines 8 to 13 of the Records refers); and contended that with the position of the Appellant on Exhibit 2, the Trial Court had the responsibility to determine whether Appellant signed the document or not, which he failed to do. For the bove submission he cited and relied on ABOSHIM V. UGAH (1993) 2 NWLR (Pt. 87) 752. Held 1 and EGBARAN V. AKPOTOR (1997) 7 SCNJ 300 at 393 Held 9. He recalled that in Exhibit 3 admitted by the Appellant, he thumb printed but in Exhibit 2, a mark was provided which if the learned trial Judge had compared the two documents he would have arrived at the conclusion that the Appellant never signed Exhibit 2 as alleged which was alleged to have been made a month after Exhibit 3 by the same person.

The learned Counsel also pointed out that Exhibit 3 was handwritten and one wonders why Exhibit 2 was typed. He reiterated his earlier argument that Respondent had the duty to establish that the signature in Exhibit 2 which he

failed to do and this is fatal to the probative value ascribed to the document by the trial Court more so, as the said Exhibit 2 had no date of commencement at the time it was made and there was no jurat since all the parties were/are illiterates. UNITED AFRICAN COMPANY OF NIGERIA LTD. V. EDEMS AND AJAYI (1957) NRNLR 33 at 34 was cited in this regard.

On the submission that an Agreement is an aspect of valid contract which the law requires that parties should be ad idem as to what they want, he posited that as at the time the parties purportedly entered into Exhibit 2 there was no agreement to sell the property on the part of the Appellant who was receiving money from the Respondent as a loan.

AKINYEMI V. ODU’A INVESTMENT (SUPRA) at 131 was again cited to buttress the above submission and to further contend that the Agreement was to pledge his house for a further receipt of N10,000.00 and that every other Agreement reached was to bring about redemption of the money pledged on the side of the Appellant which he gave unchallenged evidence that he met but the Respondent frustrated it by evading him (the Appellant).

On the above score, the

learned Counsel submitted that Exhibits 2 and 2A did not satisfy the requirement of a valid sale of land, rather it was a contract for sale of land because in the said Exhibit 2 reference was made to an event that would happen before sale can take place proper as admitted and pleaded by the Respondent in paragraph 17 of his Amended Statement of Claim at page 10 lines 22 to 25 of the Records.

On the whole, the learned Counsel to the Appellant insisted that the trial Judge was wrong to have granted an order of specific performance on the strength of Exhibit 2 and prayed us to allow the Appeal and set aside the judgment of the trial Court.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER SIX (6):
In respect of this issue, it was the contention of the learned Counsel that the Respondent as Plaintiff in the lower Court, did not make out any case worthy of success yet the trial Court found for him and made an order of specific performance. Reminding us that on this issue, they incorporated their complaint on Ground 9 that the Judgment of the trial Court was against the weight of evidence adduced, he submitted firstly in this regard that

the Appellant disputed the Respondent’s claim in so many respects and that the Respondent by his own mouth corroborated this fact by non-suiting himself in the case. This according to learned Counsel is because while under cross-examination, the Respondent as PW1 made shocking revelations at page 44 lines 3-6 as reproduced in page 25 paragraph 4.64 of the Appellant’s brief.

In the light of the foregoing answers to the cross-examination, the learned Counsel contended that going by names in the documents admitted by the trial Court, the Respondent holds himself out as the person bringing out the money given to the Appellant on loan for which the property was pledged. However, according to the learned Counsel, these pieces of evidence extracted under cross-examination reveal clearly that he (Respondent) was not the person and may be giving the unknown person the impression that he was paying for the purchase of a house and in order to unjustly bring that to bear, the Respondent avoided every contract with the Appellant on the last days to receive the sum loaned.

He maintained that with the said evidence of the Respondent under

cross-examination which is in line with the Appellant’s position that he never sold his house to the Respondent, the Respondent used the trial Court as an engine of fraud and ought to be non suited. GBADAMOSI V. AKINLOYE (2013) 15 NWLR (Pt. 1378) 455 at 460 Ratio 4 (S.C). It was further contended that the allegation of N2,000.00 being the completion of the alleged purchase price of N22,000.00 was disputed and contradicted by the Respondent with previous statements of the Respondent on this point at pages 42 lines 20 to 25 and 43 lines 11 and 12 as well as page 44 lines 19 to 25 where the Respondent stated under cross-examination as reproduced in paragraph 4.69 of page 27 of the Respondent’s Brief of Argument. The learned Counsel noted that a party who had demanded for the redemption of the money loaned at the end of June, 1992 appeared on the 1st of July, 1992 to take possession and the trial Court granted him same.

As it relates to Ground 7 of the Notice of Appeal which forms part of this issue, he disagreed with the holding of the Court that the Respondent took possession of the disputed house through a sale as he was allowed to be

collecting rent. It was therefore submitted that by the Claim for specific performance, it presupposes that possession had not been given to him (Respondent) as it relates to the alleged sale, the percentage of rent he was collecting having begun prior to the end of June, 1992 the accepted date of redemption of the loan and therefore would not have been an act of possession taken in fulfilment of the sale as was wrongly held by the Court below.
Citing the authorities of OYEBANJI V. FOWOWE (2008) 11 WRN Pg. 156 Ratio 4; OJIKUTA V. DEMAREN (1957) 2 FSC 72 at 73 and IMANA V. ROBINSON (1979) 3-4 S.C. 1, it was submitted that putting into possession is a valid requirement of sale of land transaction but as it has not been complied with before the dispute arose, the Respondent is not entitled to the claim for specific performance but damages for breach of contract. He therefore reiterated their position on this issue that the Respondent as Plaintiff in the lower Court never made a sufficient case yet the learned trial Judge found for him and urged us to resolve this issue in the Appellant’s favour for the reasons enumerated in paragraph 5.01 at pages

28-29 of the Appellant’s Brief and allow the Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER ONE (1):
The Learned Counsel on this first Issue recalled that the trial Court at the close of the parties’ case reached the conclusion that the transaction was a Sale Agreement. Page 225 lines 27-30 of the Records refers. He then submitted that from the evidence of the parties, the transaction was in two batches with two Agreements written hence Exhibits 2 and 2A as explained in paragraph 4.02 of the Respondent’s Brief which terms of the Agreement the Appellant did not deny as can be gleaned from his case at pages 225 lines 26-30 and 226 lines 1-15 of the Records.

He submitted therefore from the foregoing that it is a cardinal principle of law that parties are bound by their Agreement and having agreed on the terms of the sale, they must accept the legal consequences therefrom as held by the Court that it cannot make a contract for the parties but to decide on their wishes and therefore the position of the case now as a sale Agreement. In support of his above submission, reliance was placed on the Supreme Court

decision in A-G. Rivers State v. A-G. Akwa Ibom State (2011) 3 SCNJ 1 at page 6 Ratio 9; to submit further that allowing the Appellant to walk out of his Agreement which from the evidence was not tainted with fraud, misrepresentation or deception would be inequitable, for the law frowns at rescinding voluntary Agreement even if the party later realizes that the terms are unfavourable to him.

The Learned Counsel also alluded to the doctrine of Estoppel which is applicable to this case by the provisions of Section 151 of the Evidence Act and by which the Appellant by his conduct is bound to accept the legal consequences of the terms of their transaction with the Respondent. Page 227 lines 10-30 of the Records refers.

On the submission by the Learned Counsel to the Appellant that the golden rule of pledge applies in this case, the Learned Counsel to the Respondent argued per contra and submitted that the rule does not apply as the case had been fought and won at the trial Court on the basis of the transaction being a contract for sale as can be gleaned from Exhibits 2 and 2A at pages 38-67 of the old Records, pages 188-189 thereof. In his view

therefore, the cases of Okoye v. Obiaso (supra), Kofi v. Kofi (supra); Amoo v. Adigun (supra) and Ifeanyi v. Adighoghu (supra); all cited by the Learned Counsel to the Appellant should be discountenanced by this Court.

Still on the principle of sanctity of contracts and the duty of the Court to construe the surrounding circumstances including written and oral Statements so as to attest the intention of the parties, the Learned Counsel to the Respondent contended that when the correspondences exchanged between the parties are read together, it can be assumed that the parties therein have come to agreement to sell the house/subject matter of this case. On this submission he cited the case of Nwaolisah v. Nwabufoh (2011) 6 SCNJ 530 at 532 Ratio 14.

In his view, upon the assumption that the transaction was a pledge, the Learned Counsel asserted that it is trite that a pledge transaction whether oral or reduced into written Agreement, can be varied, altered or amended, via another written Agreement or oral as the case may be, if the parties are at consensus ad idem as in the present case and therefore the authorities of Polo v. Ojor (2003) 3 NWLR

(Pt. 807) 344 at 347 H2; Adjei v. Dabanka (1930) 1 WACA 66; Okoiko v. Esedalue (1974) ALL NLR (Pt. 1) 454 and Agada v. Esadalue (1974) 3 S.C. 15 at page 355 paras. E – F; cited by the Appellant’s Counsel are inapplicable to this case where the substance is the subsequent 2nd Agreement and not the initial Agreement that is in issue.

The Learned Counsel to the Respondent in the light of the above endorsed the holding of the Learned Trial Judge that the “initial money borrowed leading to the pledge of Appellant’s house was not redeemed but it crystallized into a Sale Agreement after further agreement referred in Exhibit 2, 2A was entered by both parties”. He explained what the Court referred to as the further agreement as the fresh Agreement written by the parties but not a demand and receipt of additional ₦10,000.00 loan from Respondent to Appellant but as part payment for the purchase of the house on condition that Exhibit 2 was a further agreement for the sale of the property upon failure of Appellant to redeem the property by payment of the ₦20,000.00 within the stipulated time agreed by the parties.

On the determinants

of enforceability of a valid contract or Agreement where time is of the essence on ground of non-performance, the Learned Counsel listed those determinants in paragraph 4.12 page 12 of the Respondent’s Brief, reliance being placed on Nigeria Bank v. Integrated Gas (2005) 1SCNJ 104 at 108-109 Ratio 10. Citing again Kaydee v. Hon. Minister (2010) SCNJ 276 at 278-279 Ratios 1, 2 and 3, he further submitted that a Sale Agreement in which the terms are altered, amended, or varied by the parties themselves, without undue influence misrepresentation or fraud, is not void provided that the parties were in consensus ad idem at the time of entering the subsequent Agreement. He also referred to the general rule of determination of a contract or Agreement either in accordance with its terms such as through performance by the promise of the exact terms he undertook to do but that neither the parties to the contract or Agreement nor the Court can be allowed to bring into contract any extraneous terms not agreed upon by the Parties. On this principle, it was submitted that Duruoshimiri vs. Duruodunze (2001) 9 NWLR (Pt. 717) 244 at 251 is not applicable to the facts of

this case so also is Usman Bua v. Dauda (supra) in view of the circumstances under which Exhibit 2 was made.

The Learned Counsel insisted that there agrewasement of the mind of the parties in making the sale transaction which is a vital requirement of a valid contract by citing the Supreme Court’s decision in Akinyemi v. Odu’a Investments (2012) 1 SCNJ 127 at 131 H.8, where the three basic essentials of a contract and the test for determination whether the parties had reached agreement were enunciated in Ratio 7 of the above cited case.

He submitted again on the authority of Nwaolisah v. Nwabufoh (2011) 6 SCNJ 530 at 535 Holdings 22, 23 and 34, that the notice served the Respondents by the Appellant’s Counsel for the Respondent to collect his money from the Lawyer’s Office was an afterthought as the date for the redemption of the property had expired and the Respondent had taken steps to renovate the property and since time was of the essence, the Appellant breached the terms of the contact.

The learned Counsel to the Respondent again on the authorities ofBest vs. Black Wood (2011)1 SCNJ 282 at 285-286 Holding 4, 5, 6 7,

8 and 10, Mini Lodge v. Ngei (2009) 12 SCNJ 92 at 96 Holdings 5 and 6; submitted that the Respondent was at liberty to treat the first agreement at an end or extinguished upon failure of the Appellant to pay back the loan as at the end of June, 1992 and that even if he did not see the Respondent to pay back the money before or on 30th June, 1992 he was left the option of paying the money to the Registry of the Registry of any Court in Lafia and not to the Counsel who wrote Exhibit 4. Furthermore, he contended that a contract for sale of property, where part payment was made, is final leaving the balance outstanding to be paid (as in the present case), the contract of sale being absolute for which any of the parties can be in breach for non-performance and for which an action can lie for specific performance.

Referring to page 44 lines 3-21 of the Records, it was his further submission that the Agreement between the parties was complete and subject to the agreed condition as at the time of making the agreement, the consideration for the property was negotiated to be N22,000.00 (Twenty-Two Thousand Naira) of which N20,000.00 was paid, Appellant having a

balance of N2,000.00 on the agreed condition that if the Appellant did not refund the N20,000.00 before 30th June, 1992 the Respondent would balance the remaining N2,000.00 and the house will become Respondent’s. He maintained that upon the failure of the Appellant to refund the N20,000.00, at the end of June, 1992, the Respondent paid the remaining balance of the purchase price of the property through the Appellant’s Agent Angulu Jatau as equally admitted by the Appellant’s Counsel in Exhibit 4.

Finally on this Issue the Learned Counsel submitted that parties were ad idem as at time of making the Agreement on the essential terms in Exhibits 2 and 2A. We were therefore urged to hold that the Agreement can stand in law and enforceable against that party in breach of the essential terms and maintained that the Trial Court did not err by entering judgment for the Respondent. He prayed us to dismiss the Appeal and affirm the Judgment of the learned Trial Judge.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER TWO (2):
The Learned counsel to the Respondent answered the question raised by this issue in the

affirmative having regard to the pleadings and evidence of the Appellant. Pages 186 line 28 and 187 lines 1-22 of the old Records were allude to in re-asserting that the Appellant never amended his statement of Defence. He adopted part of his earlier argument on the failure of the Respondent to amend his statement of Defence the implication which according to him (Respondent’s) Counsel, is that the amended Statement of Claim remains uncontroverted and thus deemed admitted by the Appellant. For this submission, he cited the case of Okoebor vs. Police Council (2003) 5 SCNJ 52 page 68; to further submit that the Appellant’s Statement of Defence filed six years before the amendment of the Statement of claim did not affectively controvert the issues raised in the Amended Statement of Claim. Pages 186 line 28 and 187 lines 1-22 of the printed Records referred.

It was the Learned Counsel to the Respondent’s further submission that the Appellant as Defendant in the lower Court did not sufficiently deny the allegation of the pricing of the House at N22,000.00 and to that effect Exhibit 2 was written. He then referred to page 189 lines 9-10 of

the Records to also submit that going by the Appellant’s Brief, his Counsel admitted N2,000.00 remaining balance of the purchase price paid through Angulu (PW3). Pages 83 lines 15-18 and 84 lines 24-25, 86 lines 11-14, 227 lines 15-27 of the Records were referred to as well as the case of Akomolafe v. Guardian Press (2010) 1 SCNJ page ? Rationes 2, 3 and 4 at page 285; in further submitting that it is trite that evidence elicited under cross-examination which supports the case of the party can be relied upon. He therefore referred to the evidence of DW1 in urging us to uphold the reasoning of the Lower Court.

On the whole, he adopted part of his argument on Issue Number 1 (One) of the Respondent’s Brief of Argument to the extent that the case had been fought and won on the sole ground that the transaction was a sale of house contract to which the Defendant/Appellant could be ordered to specifically perform his side of the contract as parties are bound by their agreement and any evidence which is at variance with pleadings goes to no issue. Ojiogu v. Ojiogu (2010) 3 SCNJ 418 at page 421 Ratio 3 and page 227 lines 23-27 of the Records were

relied upon in so submitting.

On the position of the law that a party can not rely on the address of Counsel but on facts pleaded and evidence led in support of such fact to sustain his case, the authority of Oloruntoba-Oju v. Abduraheem (2009) 6 SCJN 1 at page 11 Ratio 23 was cited in support.

Finally, the learned Counsel contended that the mere fact that the Appellant denies Exhibit 2, 2A is not sufficient enough to constitute a denial of the sale transaction but he ought to have called his own witnesses in rebuttal of same which he failed to do. We were therefore referred to the evidence of the PW1-PW4 at pages 37-67, page 226 lines 26-28 and page 227 lines 1-14 of the Records to urge us to discountenance the authority of Trade Bank PLC v. Chami (2003)13 NWLR (Pt 838)158 (CA) as relied upon by the Learned counsel to the Appellant as same is inapplicable to the instant case but resolve this Issue in favour of the Respondent.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE THREE (3):
On this Issue, the Learned Counsel was of the view that from the judgment of the Trial Court, the evidence of the DW2 Iliya Ibrahim, was not literally

refused but it was based on the findings of fact, evaluation of evidence and ascription of probative value to the evidence before the Court, that it was held that his evidence was devoid of evidential value and that this finding cannot be faulted. Page 228 lines 3-8 of the Records was referred to in support of the above submission. He maintained that the Appellant’s Brief reveals that this Appeal revolves on the issue of improper evaluation of Appellant’s defence at the Court below but that a close look at pages 200-228 of the Records reveals the painstaking efforts by the learned Trial Judge at evaluating the evidence of the parties in detail before rejecting evidence of the Appellant and accepting that of the Respondent. Accordingly, it was contended that an Appellate Court will not set aside the decision of a Trial Court merely because a wrong reason was given for the decision for what is paramount is that the decision is right and in this Issue the case of Uka v. Irolo (2002)7 SCNJ 138 at 141 at Holding 9 cited by the Learned Counsel to the Appellant, is not applicable in this Appeal and same should be discountenanced.

On the settled

principle that civil cases are decided on preponderance of evidence and balance of probabilities and that it is therefore the primary duty of the Trial Judge who had the sole opportunity to evaluate evidence and ascribe probative values to such evidence for this submission he cited the cases of Chief Gafaru v. Chief Olowokere (2011) 12 SCNJ 289 at 293 Ration’s 9, 10, 11 and 12 and Adewunmi v. Akin Mabogunje (2013) 1 SCNJ 175 at 185 Ratio 3 on what a Trial Court ought to consider in carrying out the above duty.

Finally on this Issue, he posited that since the evidence of the DW2 is at variance with the pleaded facts same goes to no issue. Ojiogu v. Ojiogu (supra) was cited and relied upon in urging on us that this was what the Learned Trial Judge rightly held in discrediting the evidence of the DW2. We were therefore urged to affirm the Judgment of the learned Trial Judge in resolving this issue in favour of the Respondent.

ARGUMENT OF THE LEARNED COUNSEL ON ISSUE NUMBER FOUR (4):
On this Issue which questions whether the Appellant was not denied fair hearing when the Trial Court refused his Application for amendment of his pleadings, the

Learned Counsel answered the question in the negative. He submitted in the first place that by Order 26 Rules 1, 2 and 3 of the High Court Procedure, Rules of Plateau State, amendment of pleadings is permitted subject to the judicious and judicial exercise of the Trial Court’s discretion which Court according to him, did in the instant case. In support of his position he referred us to page 160 lines 3-21 of the Records and further submitted that going by the case of Akor v. Abuh (1983) 3 NWLR (Pt. 85) 696 at 712 cited by the Learned Counsel to the Appellant, the word ‘may’ in the Court’s holding envisages the exercise of discretion which goes to support his (Respondent Counsel’s) submission that the Court below rightly exercised its discretion to refuse the Amendment sought by the Appellant to his Statement of Defence.

In respect of the question of denial of fair hearing, he referred us to the Supreme Court’s decision in Ezeigwe v. Nwawulu (2010) 2 SCNJ 112 Ratio 25 at page 148; on what is necessary in the exercise of the right to fair hearing and submitted that the Appellant was afforded opportunity to be heard but

failed to seize same and cannot be heard to complain at this stage. Adopting also part of his earlier argument on time for amendment and reasons for refusal of amendment and reference to pages 158-162 of the Records, it was further submitted that fair hearing has a time frame as a party cannot hold the Court to ransom the principle being not indefinite for all the Court needed to do was to create an enabling environment for the parties to the case. Citing Cyprian v. Louise (2002)2 SCNJ 271 at 273 Hold 1 and page 160 lines 5-8 of the Records in submitting that fair hearing lies in the procedure and not in the correctness of decision arrived at, he noted that it can be gleaned from the Records that justice was done to the parties such that denial of an opportunity to amend pleadings cannot arise. We were therefore in the light of the above submission urged to resolve the Issue in favour of the Respondent and dismiss the Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER FIVE (5):
Arguing this Issue, the Learned Counsel to the Respondent answered the question as to whether the Learned Trial Judge was right in ascribing probative value

to Exhibits 2 and 2A, in the affirmative by reference to pages 226 lines 17-28 and 227 lines 1-14 of the Records and their earlier submission on Issue Two (2) to the extent that Exhibits 2, 2A were admitted in evidence in accordance with the law and ascribing probative value, in support of his argument on this Issue. For this submission, he placed reliance on Governor of Zamfara State v. Gyalange (2012) 4 SCNJ1 at Ratio 14; to further contend that Exhibits 2, 2A are Hausa and English versions of the sale contract tendered by the Respondent in support of his case praying for specific performance and perpetual injunction, which were granted.

He argued further that the argument of the learned Counsel to the Appellant cannot preclude the Trial Court from ascribing probative value to a document where there was oral evidence to warrant such. Page 227 lines 1-14 of the Records refers. In his final submission on this Issue, he explained that the said Exhibits 2 and 2A were written in English and Hausa versions of the sale contract which were languages the parties understood the said Exhibit 2A being an interpreted version of Exhibit 2 into the language of the

Court. He noted that none of the parties raised the issue that he did not understand the language the document was written and therefore we were urged to disagree with arguments of Learned counsel to the Appellant as the authority of UAC Ltd. v. Edenis & Ajayi (1957) NRNLR page 33 at 34 is not applicable to the present case and dismiss the Appeal on this Issue.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER SIX (6):
The question raised by this Issue was answered in the affirmative by the learned Counsel as according to him, the Respondent sufficiently led credible evidence in proof of same at pages 37-67 of the Records. He pointed out that the action being civil in nature, it is proven on preponderance of evidence which onus the Respondent satisfactorily discharged without non-suiting himself as alleged by the Learned Counsel to the Appellant in his Brief. He maintained that it has always been the case of the Respondent that he bought the house in dispute himself hence the Agreement was entered into between the parties and that no unknown third party was privy to the contract and on the assumption that he got money from someone

else, this Issue is to be addressed by this Court.

Adopting part of his earlier submissions as part of his argument on this Issue on the principle that the law frowns at parties resiling from an Agreement earlier entered into when one of the parties has taken step to the fulfilment of part of the contract, it was submitted that the other party can be called upon to perform his part. He then submitted that the case of Gbadamosi v. Akinloye (2013) 15 NWLR (Pt.1375) 455 Ratio 4 cited by the Learned Counsel to the Appellant is not applicable to the instant case as the Respondent nowhere in the Record used the Trial Court as an engine of fraud and as such cannot be non-suited.

On the submission as to the contradictions in the evidence of the PW1 as argued by the learned Counsel to the Appellant, he submitted that such is minor and immaterial as it does not affect the substance of the case. He insisted that the evidence of the respondent as to his right to possession was not sufficiently denied to warrant the trial Judge not finding possession in favour of the Respondent. For this submission, he placed reliance on Alh-Nasir v. Civil Service Commission Kano State

(2010) SCNJ 187 at 186 to insist that the trial Court after a careful evaluation of the evidence rightly held that the Plaintiff/Respondent took possession of the property as soon as he started collecting the rent which is equal to an act of possession. Page 44 lines 7-12 of the Records was referred to a submitting finally that the Respondent having proved his case was entitled the Order of Specific Performance which was the stance of the learned Trial Judge at page 228 lines 9-17 of the Records. We were then prayed to dismiss the Appeal by resolving the last Issue in favour of the Respondent for the reasons stated in paragraph 4.44 pages 12 to 13 of the Respondent’s Brief.

It would be recalled that the learned Counsel to the Appellant as said earlier filed the Appellant’s Reply Brief of Argument on the 7th of November, 2018 which was deemed properly filed with the leave of this Honourable Court on the 13th of May, 2019 wherein he reacted to the submissions of the Learned Counsel to the Respondent on Issues One (1) and Two (2). I shall allude to the contentions of the Learned Counsel on the Appellant’s Reply Brief in the course of

Resolution of the Issues where necessary.

RESOLUTION OF ISSUES:
Upon a careful perusal of the facts of this case and the Six Issues distilled for determination, I am of the candid view that the pertinent question that calls for an answer in this Appeal is whether the transaction between the Appellant and the Respondent was a pledge or a contract of sale of the Appellant’s house situate at Tudun Kawari, Lafia to the Respondent. All other issues are ancillary to the above mentioned Issue and accordingly, I shall recouch Issues Numbers 1 (One), 2 (Two), 5 (Five) and 6 (Six) into an Issue while Issues 3 (Three) and 4 (Four) shall constitute another Issue. In the circumstance, the Issues for determination shall now read as follows:-
ISSUE NUMBER 1 (ONE):
“FROM THE TOTALITY OF THE PLEADINGS AND EVIDENCE ADDUCED BY THE PARTIES, WAS THE LEARNED TRIAL JUDGE RIGHT TO HAVE HELD THAT THE INITIAL TRANSACTION BETWEEN THE PARTIES THAT WAS A PLEDGE HAD CHANGED TO A SALE AGREEMENT SO AS TO WARRANT THE GRANT OF THE RESPONDENT’S RELIEFS OF SPECIFIC PERFORMANCE AND PERPETUAL INJUNCTION AS SOUGHT IN PARAGRAPH 24(A) AND (B) OF HIS AMENDED

STATEMENT OF CLAIM?
ISSUE NUMBER 2 (TWO):
WAS THE APPELLANT NOT DENIED FAIR HEARING WHEN THE LEARNED TRIAL JUDGE REFUSED THE APPELLANT’S AMENDMENT OF HIS PLEADINGS WHEN TRIAL WAS STILL ON-GOING AND REJECTED/PLACED NO PROBATIVE VALUE ON THE EVIDENCE OF THE DW2 (ILIYA IBRAHIM) ON THE GROUND THAT HIS NAME WAS NOT PLEADED?”

RESOLUTION OF ISSUE NUMBER 1 (ONE):
In the resolution of this Issue, it is pertinent to note that the Respondent as Plaintiff in the Lower Court had pleaded in paragraphs 3 to 21 of his Amended Statement of Claim filed on the 13th day of May, 1998 as follows:-
“3. The Plaintiff states that the Defendant was at all material time to the action the owner in possession of all the property lying and situate at Tudun Kawari, Off Makurdi Road, Lafia.
4. The Plaintiff states that sometime in January 1992, the Defendant who desired a loan and wanted to pledge the said property asked one Angulu Jatau to look for a lender. The Plaintiff avers that at all material times, the said Angulu Jatau acted and/or held himself out as the Agent of the Defendant.
5. The Plaintiff avers that the Defendant and his

Agent Angulu Jatau approached him whether he would be interested. The Plaintiff was reluctant at the beginning but when the Defendant and his Agent persisted he agreed to consult his brother at Abuja.
6. The Plaintiff avers that the Defendant requested for the sum of N10,000.00 which was paid to the Defendant in presence of witnesses.
7. The Plaintiff avers that it was agreed by both parties that if by the end of June, 1992, the money borrowed is not paid then the Plaintiff would purchase the property out rightly. The Plaintiff shall rely on the Agreement which is hereby pleaded.
8. The Plaintiff states that about a month or two later after the Defendant approached him for an additional sum of N10, 000.00.
9. The Plaintiff states that before additional sum was advanced to the Defendant, it was agreed that the price for the property was fixed. The Plaintiff states that the price for the property was fixed at N22,000.00 only.
10. The Plaintiff avers that he gave the Defendant the additional N10,000.00 and it was agreed that the whole sum including the earlier amount paid be paid on or before the end of June, 1992. It is further agreed

that if the Defendant did not pay or before the date, the Plaintiff would pay the sum of N2,000.00 to the Defendant and take over the property. An Agreement was drafted incorporating the terms. The Agreement is hereby pleaded and relied upon.”

The Respondent had also pleaded in paragraphs 11 to 15 of the Amended Statement of Claim that at the end of the month of June, 1992, the Defendant failed, refused and/or neglected to refund the total sum of N20,000.00 to the Plaintiff:-
“11. The plaintiff avers that on 1st, July, 1992 the Defendant sent Angulu Jatau and demanded the remaining N2,000.00 to complete the payment for the purchase of the said property as the defendant was not in position to repay the sum he borrowed. The Plaintiff gave him the sum of N2,000.00 being final payment for the purchase of the property.
12. The Plaintiff avers later he met Respondent who confirmed that he has received the sum of N2,000.00 which was paid to him through his Agent Angulu Jatau.
13. The Plaintiff avers further he also gave the said Agent the sum N400 as La’ada.
14. The Plaintiff states that both the Defendant and himself are

resident in Lafia and are subject to the custom and tradition relating the people of Lafia. The Plaintiff states that the whole transaction was conducted under Native Law and Custom of the people.
15. The Plaintiff states that under the custom and tradition of the people of Lafia, La’ada is paid to indicate transfer of interest or to create binding contract.
16. The Plaintiff states that as of 1st July, 1992 when he paid the final sum, the property ceased to be that of Defendant and had become the property of Plaintiff; the property purchased from the Defendant comprises two blocked of mud houses with 24 rooms. There is also an open space of the back.
17. The Plaintiff states that after payment he asked Defendant to follow him to a Lawyer for a formal Agreement to be signed but he said he was going to farm and that if he came back from the farm they would go to Lawyer as requested.
18. The Plaintiff further avers that he told the Defendant about his desire to start repair work where in the Defendant said he was free to do so where in the Plaintiff went ahead and deposited a trip of sand to start repair work.
19. The plaintiff

states that he was shocked and embarrassed when a day or 2 later he received a letter from the Defendant’s Solicitor telling him to go and receive his money. The letter is hereby pleaded.
20. The Plaintiff states that on receipt of Defendant’s letter he also consulted Counsel who also wrote to the Defendant. The letter is hereby pleaded.
21. The Plaintiff states that despite demands, Defendant has continued to hold unto the property.”

I cannot find the Statement of Defence filed on 18/9/92 as the old Record of Appeal was not made available to me. Going through the pleadings of the Appellant at page 206 of the Records/6 of the Judgment of the Lower Court, the Appellant as Defendant pleaded in the said statement of Defence as follows:
“PARAGRAPH 2:
The Defendant admits paragraph 4 of the Statement of Claim to the extent that the said Angulu Jatau only accompanied him to the house of the Plaintiff because he is his brother and not that he helped him out, neither at any time he acted as Agent.
PARAGRAPH 3:
The Defendant denies paragraph 6 of the Statement of Claim and puts the Plaintiff to the strictest
55

proof. The Defendant further avers that the Plaintiff did not at any time tell them he has any brother not to talk of going to contact him.
PARAGRAPH 4:
The Defendant admits paragraph 7 of the Statement of claim to the aaaextent that only the Plaintiff, Adamu, AnguluJatau and himself were there. Defendant avers that Iliya Ibrahim was not present.
PARAGRAPH 5:
The Defendant admits paragraphs 8, 9 and 10 of the Statement of Claim to the extent that he only pledged his house for the sum of N10,000.00 he borrowed from the Plaintiff and never at any time sold the house to the Plaintiff.
PARAGRAPH 6:
The Defendant denies paragraphs 11 and 12 of the Statement of Claim and shall put the Plaintiff to the strictest proof at the hearing.”

However, following the amendment of the Plaintiff/Respondent’s Statement of Claim the Defendant in his PROPOSED Amended Statement of Defence dated 22nd day of February, 2005 which motion to regularize was refused by the Learned Trial Judge pleaded as follows:-
“1. The Defendant admits paragraphs 1, 2 and 3 of the Statement of claim.
2. The Defendant admits paragraph 4 of the

Statement of Claim to the extent that the said Angulu Jatau only accompanied him to the house of the Plaintiff because he is his brother and not that he held him out, neither at any time has he acted as his Agent.
3. The Defendant denied paragraph 6 of the Statement of claim and puts the Plaintiff to the strictest proof of it. The Defendant further avers that the Plaintiff did not at any time tell them he has any brother at Abuja not to talk of going to contact him.
4. The Defendant admits paragraph 7 of the Statement of Claim to the extent that only the Plaintiff, Adamu Angulu Jatau and himself were there. Defendant avers that Iliya Ibrahim was not present
5. The Defendant admits paragraphs 8, 9, 10, of the Statement of Claim to the extent that he only pledged his house for the N10,000.00 he borrowed from the Plaintiff and never at any time sold the house to the Plaintiff. The Hausa and English versions of the pledge Agreement are hereby pleaded and will be relied upon at the hearing.
6. The Defendant denies paragraphs 11 and 12 of the Statement of Claim and shall put the Plaintiff to the strictest proof at the hearing.
7. The

Defendant denies paragraph 13 of the Statement of claim and shall put the Plaintiff to the strictest proof thereof. The Defendant further avers that he never at any time sold his house out rightly to the Plaintiff.
8. The Defendant denies paragraphs 14 and 15 of the Statement of Claim and further avers that he never entered into any Agreement of sale of his house with the Plaintiff. Defendant shall put the Plaintiff to the strictest proof at the hearing.
9. The Defendant denies paragraph 16 of the Statement of Claim and shall put the Plaintiff to the strictest proof at the hearing. The Defendant further avers that before the month of June ended, he in company of his brother Angulu Jatau went to the Plaintiff’s house about three times looking for him to give him back his money, but each time they went, the Plaintiff was avoiding contact with them was said to have travelled out.
10. The Defendant further avers in answer to paragraph 16 of the Statement of claim that the Plaintiff was avoiding contact with them so as not to take back the money in order to make the pledge a sale.
11. The Defendant further avers that it was out of

frustration of not getting the Plaintiff that he briefed his Solicitor Messrs Yusuf S. Usman & Co. to connect to the Plaintiff to take back his money. The said letter is relied upon.
12. The Defendant is not in a position to admit or deny paragraphs 17 and 18 of the Statement of claim as he never held out the said Angulu Jatau as his Agent nor authorised him to so act and that if the said Angulu Jatau did so, he acted without his consent.
13. The Defendant denies paragraphs 19, 20 and 21 of the Statement of claim and further avers that he never met the Plaintiff on the said 2nd July 1992 to confirm any thing and that he never arranged for any Agreement drafting before a Lawyer as he did not sell any thing to him (the Plaintiff).
14. The Defendant denies paragraph 22 of the Statement of claim and further avers that the Plaintiff never told him anything about renovations as there cannot be renovation on what has not been sold to him.
15. The Defendant denies paragraph 23 of the Statement of claim and further avers that the Plaintiff only deposited a trip of sand after he had received a letter from my Solicitors to take back his money and

that it was only after the receipt of the said letter that the Plaintiff “returned” from his alleged journey.
16. The Defendant further avers that after Plaintiff “returned” from his alleged journey and he saw him, he took his money back to him in company of other people but the Plaintiff refused to take back his money.
17. The Defendant shall urge the Court to hold that the Plaintiff is not entitled to the Reliefs claimed and dismiss same with substantial costs.”

In the evidence of the PW1/Respondent Saidu Adamu at pages 38 and 39 of the Record, he testified that he sued the Appellant because he sold his house to him (Respondent). The Appellant did not give him the (Respondent) the house and that was why he brought the Appellant to Court so that the Court will receive the house and give to him. According to Respondent:
“The transaction started in the month of January but I cannot remember the year but it is between seven to eight years now. In January that year the 1st Defendant came together with the Ward Head to my house called Angulu. They collected Ten Thousand Naira from me in respect of a house that they

will come later we price the house. Later the 1st Defendant and one Angulu Jatau who collected another Ten thousand Naira and give to 1st Defendant for the sale of the house. We agreed for the sale of the house at the rate of Twenty two Thousand. I then told him if he brings back my money at the end of June that year then there is sell of the house but if he (sic) fell to do so, then the sale of the house is confirmed. There is an Agreement to that effect written by one Musa Haruna who was brought by Angulu the Ward Head we all signed the Agreement and each person was given a copy. Among the signatures are Angulu the Ward Head, Iliya the son of 1st Defendant and 1st Defendant himself. Iliya signed as a witness to the 1st Defendant one Mallam Adamu and Usman Dikko signed as my witness. This is the Agreement.” The said document was marked identification ‘A’
The PW1 continued in his evidence in-chief that:
“At the end of June the 1st Defendant said there is no money so the sale has been confirmed. I therefore brought the balance of N2,000.00 and gave to Angulu the Ward Head. I then told him that I will repair one room in

the house for the use of my elder brother, whenever he comes. I then took a trip of sand there. When I put the sand following day I saw this person with glasses brought a letter to me, he is a brother to the 1st Defendant what is your name. My name is Mua’zu. On receipt of the letter I took it to my counsel. My counsel read the letter and told me to go to a Lawyer’s chambers by name Yusuf to collect my money. That was not part of the Agreement. The house is at Makurdi Road Ludan Kausi Agyaragu Road. There are twenty six rooms in the house. It is mud house, he also show me space behind the house and is house is not fenced. From January to June of the same year, I was the person collecting the rents from the house. I appointed Angulu Jatau to be collecting the rents and bring to me.”

Under cross-examination, the Respondent at page 43 of the Record of Proceedings of 9/3/2001 the witness stated that when he paid the first N10,000.00 they wrote an Agreement and the Agreement was written by one Musa Haruna but in his first testimony he stated that it was on Mallam Laiya Hussani who wrote the Agreement. According to him, he would not remember

the exact date the Agreement was written but it was on the date he gave the money in his house. The Agreement, he further stated was hand written and it was only one copy but did not know whether it was written in Hausa. He asserted that the person wrote the Agreement because he (Respondent) is illiterate and would not knew whether the 1st Defendant/Appellant knew how to write but that Defendant wrote his signature. The Agreement was between the Appellant and himself. He stated also the second Agreement was written by the same person who wrote the first one (Musa Haruna) and it was also in his hand written. He admitted that there was not note for the payment of last N2,000.00. At page 44 of the Records in lines 6 to 10, the witness on further cross-examination confessed that: “I paid the money because I like the house. I will be sad if I did not get the money. From the 1st payment of N10,000.00 on June, 1992 to the end of June, 92 I was the person collecting the rent for the house. As at that time there were 24 rooms and two shops. Among the rooms the Defendant had collected one year rentage and I was being paid N600 for the remaining rooms.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Respondent in the conclusion of his evidence under cross-examination denied ever dodging the Appellant on the last three days of June 1992 so that he (Appellant) would not refund any money to him (the Respondent). According to him, when the month was pending, “I looked for the 1st Defendant to pay me my money in his house and where we used to visit but did not see him. I did not leave any message to anybody that I was looking for him. That was on the last day I told the truth.”

The PW2 Haruna Ibrahim a Teacher by profession testified that Plaintiff is his brother. Around 1992, he was sitting in his room at Angwan Wage a Lake Lafia, when he saw Angulu Jatau (the PW3) who approached him for the purpose of writing an Agreement letter between Alhaji Saidu Mohammed and Ibrahim Dogo (the Respondent and Appellant):-
“For a house on pledge at the rate of ten thousand for six months time from January to June. If the money is not refunded by that time, they will settle so that the house would be sold. The houses belong to Ibrahim Dogo. I wrote the Agreement between them. The ten thousand naira was given to Angulu Jatau. Later after

about three months the same Angulu came to me. Again I should come and write an Agreement that the house was sold to Alhaji Saidu at the rate of twenty two thousand and he completed the remaining twelve thousand. I wrote the Agreement for them. I read the Agreement to them both of them signed. Ibrahim Dogo signed and his son signed as Witness for him also AnguluJatau signed as Witnesses for Ibrahim Dogo. Alhaji Saidu signed and his two Witnesses signed. I too signed. I can identify the 2nd Agreement by my signature. This is one.” See pages 46-47 of the Records.

In the course of tendering the Agreement, the Learned Counsel to the Defendant Mr. Aya objected on the grounds that whereas the Witness said he wrote the Agreement what was sought to be tendered was a typed Agreement apart from the Agreement being Written not in English (the language of the). Ruling was reserved on that 11th day of June, 2001 and was delivered on 11/12/2001 admitting the said Agreement as Exhibit 1. There is no indication in my part of the Record of Proceedings that the PW2 was cross-examined. In any case, the PW3 was Mai Angwa Angulu Jatau, the Ward Head of Angwan Wajen Lelle

and a Civil Servant with Lafia Local Government commenced his evidence-in-chief on the 8th day of August, 2001 (see pages 49-50 of the Records).

He testified that he knew the parties on the case and that sometime in 1992, the Appellant met him at home in Angwan Wajen Lelle and said he had some problem and wanted him (the PW3) to get somebody for him whom he will pledge his houses to him:-
“I told him to come with me to meet the Plaintiff Alhaji Saidu. We went and met the Plaintiff and explained to him. The Plaintiff said he has no desire to get the pledge of the house but he will do it because of my sake. The 1st Defendant said he wanted N10,000.00. The Plaintiff told the 1st Defendant to go and brief his witnessed before he gives the money. The 1st Defendant went and brought his children. I could not remember their names but they are in Court. He pointed to the 5th and 6th Defendants. The Plaintiff gave N10,000.00. The Plaintiff gave N10,000.00 to the 1st Defendant in our presence and an Agreement was written. I signed the Agreement, the children also signed the Agreement. I signed as a witness to the 1st Defendant as I brought him as my elder

brother. The 1st Defendant also signed the house given out for rental. That Plaintiff was to be collecting the rent. And after 6 months he refunded the money to the Plaintiff the house revert to him.”

The Witness testified further that he knew the house in question and its location and the owner of the house was the 1st Defendant (now Appellant) because he built it and put in people to live in. “He knew these facts because the Appellant is his relation but they did not get to the agreed six months duration of the pledge. But after some months, the 1st Defendant fell sick, he came to me and requested that more money be added to him to go for treatment. I asked him how much he needed, he said N10,000.00. I told him we should go to the Plaintiff. The 1st Defendant and myself went and met Plaintiff in his house and told him what brought us. The Plaintiff said that he will not give the money but they should settle for the price of the houses, and if at the end of the six months if the Defendant refunds the money, he will take his house back but if he tails the balance will be paid to him and he Plaintiff retain the house. The 1st Defendant agreed

and the house was settled for twenty two thousand naira. He 1st Defendant agreed at that price. The Plaintiff brought N10,000.00 and gave him leaving a balance of N2,000.00. Another Agreement for Sale of the sale of the house was entered into. I signed the Agreement for Sale of the house. I signed as a Witness that the house was sold.”

When cross-examined this witness that was at the thick and thin of the transaction that culminated in this case, stated on the crucial question whether as the Learned Trial Judge found at page 225 lines 23 to 25 of the Records that from the pleadings of the Plaintiff in the amended statement of claim in paragraph 4 thereof, the initial transaction was a pledge Agreement as can also be gleaned from the Statement of Defence but that by paragraph 9 of the Amended Statement of Claim, the position of the parties had changed from that of pledge to sale Agreement as can be gleaned but that the Agreement was contingent on a certain condition that if the money loaned to the Defendant is not redeemed by the end of June, 1992; the Plaintiff would complete N2,000.00 and the house would become that of the Plaintiff and to this

effect Exhibit 2 was written by PW2, reiterated as in his evidence-in-chief inter alia at page 62 of the Records:-
“I did not hurriedly make Plaintiff to pay the 1st Defendant to pay the sum of N2,000.00 on 1/7/1992. When the 1st Defendant first approached me, his intention was to pledge the house. An agreement was made to redeem the pledge at the end of December, 1992. There was a second agreement for the sale of the house. I signed the first agreement. I cannot remember the date the 1st Agreement was written but it was in June, 1992 the 1st Defendant did not bring the money to redeem the pledge at the end of June, 1992. I told the Plaintiff to be patient to extend the time but 1st Defendant did not bring the?”

At page 63 of the Records after stating in the last two lines of page 62 that the first agreement was written in the house of the Plaintiff nad that he cannot read and write, but he can write his name and that of his father; he further stated under cross-examination that he did not know the real name of the person who wrote the agreement but they call him Alhaji Mallam Waya and that his name could be Musa Haruna and Waya as called

Haruna. He further testified that the second agreement was also written in the house of the Plaintiff but he could not remember who wrote the second agreement nor could he remember the names of the persons present when it was written but that the Agreement was given to Ibrahim Dogo who went and typed it. He admitted that the Agreement could be in handwritten Agreement that he signed but he knew that he signed the Agreement for Sale just like every eye witness. He did not also remember whether the son of the Appellant wrote Exhibit ‘3’ although he had testified so in 1994. He also could not tell whether that Exhibit was written in English or Hausa but that he was asked to sign but he could not remember whether the one he signed was hand written. He disclosed that he was an Agent to both the Plaintiff and 1st Defendant and that the first N10,000.00 and the second N10,000.00 were given in his presence. (See page 64 of the Records). At the same page 64 in lines 3-8, the witness finally stated under cross-examination that the Plaintiff brought the last N2,000.00 in his (AW3’s) house as the time had reached and the money was not redeemed.

The money was brought to him in the evening and he took it to the 1st Defendant and the following day the 1st Defendant went to his lawyer. At that time, the 1st Defendant/Appellant was not present when the money was brought as they live in different wards. According to him, “the month of June ended, 1st Defendant did not bring the money, so the following day, the Plaintiff brought the balance and the 1st Defendant went to his lawyer the following day. I cannot tell the date as I am not learned. It was Plaintiff who told me 1st Defendant’s lawyer wrote to him but I do not know when the letter was given to the Plaintiff.”

The evidence of the PW4 who was subpoenaed to tender documents, tendered Records of Proceedings before Honourable Justices Ogbe and Dakyen who had previously heard the case before Justice Isa A. Ramalan who wrote the judgment now on Appeal took over the case. His evidence is unhelpful to us.

The DW1/Appellant testified in chief at pages 69, 70, 71 and 72 and his cross-examination and answers thereto span pages 72 to 75 of the Records. In sum, his evidence-in-chief was that sometime in 1992 he was sick for a long time

and the money he had was exhausted. His friend who came to visit advised him to pledge his house. He then told his son DW2 Iliya to call Audu Angulu (PW3) whom he told to look for a person who has money so he could pledge his house to that person at the rate of N10,000.00 (Ten Thousand Naira). He saw the PW3, the Respondent, Adamu and Dikko come together. They met him and his son Iliya. The Plaintiff/Respondent agreed to give him (Appellant) N10,000 and the money was given through PW3 in the presence of the remaining persons as witnesses. The pledge of the House was to be for six months.

He took N600.00 and gave the Respondent as his interest. He told the Respondent that the parties must reduce the Agreement into writing. A piece of paper was brought where Dikko wrote the Agreement which he (the Appellant) thumb-impressed and the PW3, Dikko, Respondent, Adamu and Iliya signed the Agreement which was written in Hausa. He kept the only copy. The said Agreement which he handed over to his Lawyer was then tendered and admitted as Exhibit 3 even though the Learned Counsel to the Respondent (then Plaintiff) objected to its admissibility. He was shown Exhibit 2

which he said he was seeing for the first time as he only knew of Exhibit 3. On the next N10,000.00 which has necessitated the claim by the Respondent and PW3 that there was a second Agreement for the sale of the pledged house, the Appellant testified that he went in search of medicine and stayed for five months 22 days before he returned. It was after one month that he sent for the PW3 to collect another N10,000.00 for him from the Respondent.

According to the witness, the PW3 collected and “brought the N10,000.00 to me. I cannot tell whether the 1st collection was in January. The 2nd N10, 000.00 is still in relation to the pledge. The 2nd N10, 000.00 is not for the sale of my house to the Plaintiff. I am to refund the whole N20, 000.00 in six months.”

The witness related how when it was eight days to the expiration of the dead live for the redemption of the pledge, two of his children came back from a journey and said they were not happy with the Agreement, so they gave me N20,000.00 to refund to the Plaintiff. I took my son Iliya to PW3 house. We met PW3 so PW3, Iliya and myself went to the Plaintiff’s house. The PW3 went to the

house and stayed long time. When he came out he said the Plaintiff was not in the house we went back. PW3 went back again with him to the Plaintiff’s house with PW3 the third time but we did not see the Plaintiff, I became annoyed. I then gave money to PW3 to go and look for the Plaintiff. The PW3 refused to collect the money. I gave the N20,000.00 to PW3 to keep for the Plaintiff but he refused to collect it, he told me to keep the money, so I brought back the money. So after two days, I went to Barrister Yusuf. I told him what happened. I then gave the N20,000.00 to Barrister Yusuf. Barrister Yusuf told one of his boys to go along with my boy Iliya to go to the Plaintiff and give him the money. They went but could not get him.

After three days attempt, they could not get him so my lawyer wrote a letter to give to the Plaintiff for them to inform the Plaintiff when ever he comes back to come and collect his money with him. A copy of the letter was given to me and is now with my lawyer. This is the letter.

The said letter and the reply were tendered and marked ID1 and ID2 and subsequently admitted and marked Exhibits 4 and 5. See pages 71 and 72.

At page 72, the witness continued in his evidence-in-chief that a day after his lawyer wrote to the Plaintiff, he received a Summon from the Court. He denied agreeing for the Plaintiff/Respondent to renovate the house before the expiration of the Agreement. He admitted that he was aware that the Plaintiff gave PW3 the balance of N2,000.00 (Two thousand Naira) to bring to him (the Appellant) and he collected same.

It would be recalled that under cross-examination inspite of the fact that the Appellant had earlier equivocated in one breath that he was aware that the Respondent gave PW3 the balance of N2,000.00 to bring to him and he collected and in another breath that: “I never mandated PW3 to go and collect N2,000.00 to bring to me. I never agreed that we shall go to a lawyer to write a final agreement when I return from the farm. The N20,000.00 is still with my lawyer. I have never collected any balance of N20,000.00 from anybody. I only pledged my houses to the Plaintiff so my house cannot be given to him”; at page 74 line 18-19, the witness again admitted that: “It is true that Angulu brought N2,000.00 to me as the remaining

part of the transaction.”

Again going by Exhibit 4 the letter written by the Chambers of Yusuf S. Usman & Co. dated 2nd July, 1992 on behalf of the Appellant requesting the Respondent to come and collect the pledge sum from their said Chambers, paragraph two thereof which states that:
“Our client has informed us that he took N20,000.00 from you with a promise to return same to you at a later date. We are further instructed that both of you agreed that in the event of his inability to repay the money on the agreed date, then you will add N2,000.00 to his and he shall forfeit his house situate along Markurdi Road Lafia to you.”

It would appear that the Appellant and the Respondent were ad idem that the pledge transaction had been varied from what it was initially to a Sale Agreement. Although Exhibits 2 and 2A ordinarily are inadmissible in law and these documents had been rejected to Justice Dakyen as testified to by the Appellant at page 73 lines 22-25 of the Records and buttressed by the Ruling of Justice Dakyen at pages 33 to 35 of the Records by receiving the balance of N2,000.00, the Appellant had agreed to be bound by

terms of pre transaction.

However, going by the evidence of the Appellant that some days to the redemption, he made attempts to redeem the pledge but the Respondent surreptitiously made himself unavailable so that the time would lapse and it would appear that Angulu Jatau acted in tacit connivance with him (Respondent) when in the course of the attempt to refund the money, he refused either to collect money to go in search of the Respondent or collect the N20,000.00 for the redemption of pledge, there is much than meets the eye in respect of the sales transaction.

I say that the PW3 (Angulu Jatau) acted in tacit connivance with the Respondent and capitalised on the gullibility of the Appellant to have quickly gone to collect the balance of N2,000.00 so that the Appellant would forfeit his house and premises of twenty four rooms and two shops for a paltry sum of N22,000.00 so that he would collect his usual Agency fee or commission to the detriment of the Appellant whom he described as his brother.

In any case, from the date Exhibit 4 was written which was just two days after the expiration of the pledge Agreement and the commencement of the

purported Agreement, it is indubitable that the Appellant made series of futile attempts to redeem the pledge but the Respondent made himself unavailable. Even from the date on the letter from Doka Chambers on behalf of the Respondent, the desperation of the Respondent can be inferred. Whereas the letter from the Chambers of the Appellant’s Counsel is dated 2nd July, 1992, that of the Respondent is dated the 6th day of June, 1992 in which case, the Respondent’s letter predated or was written even before the time stipulated for the redemption of the pledge.

agreement, they are bound by the provision of the contract or an agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement.”
In Nwaribe V. Owerri Municipal Council & Ors. (2015) LPELR – 24433 (CA), I had cause to also pronounce on this doctrine that parties of full age who have voluntarily entered into an agreement are bound by the terms and conditions of the contract and neither of the parties can alter the terms unilaterally, nor can the Court add, alter or subtract or read into the contract terms that the parties themselves did not agree upon. This doctrine of the law of contract is what has been referred to as the sanctity of contract, usually expressed in the Latin maxim “Pacta Sunt Servanda” which means “agreement must be kept.” Umah V. Akpabio (2014) 7 NWLR (pt. 1407) 472; Best (Nig) Ltd. V. B-H (Nig.) Ltd (2011) 8 NWLR (pt. 1248) 31; JFS Investment Ltd. V. Brawal Line Ltd (2010) 19 NWLR (pt. 1225)

495; Alade V. Alic Nig. Ltd. (2010) 18 NWLR (pt. 1226) 111 and indeed the case of A-G. Rivers State V. A-G. Akwa Ibom State (supra) ably cited the learned counsel to the Respondent.
The Learned Counsel to the Respondent has also rightly alluded to the doctrine of Estoppel by conduct as consecrated by Section 151 of the Evidence Act (now Section 169 of the 2011, Act) which is to the effect that when a person has either by virtue of an existing Court judgment, Deed or Agreement or by his declaration, act or commission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceedings between himself and such person or such person’s representatives in interest to deny the truth of that thing. See Ude V. Osuji (1998) 10 SCNJ 22 at 75; Combe V. Combe (1951) ALL ER 669 at 770; Buhari V. INEC (2009) ALL FWLR (pt. 459) 419 at 517; Koiki V. Magnusson (2001) FWLR (pt. 63) 167 and Hilary Farms Ltd V. M/V Mahtra (2007) ALL FWLR (pt. 390) 1417 at 1438.
The law is trite and there is no doubt that ordinarily an Appellant who has by

his conduct made a promise to a Respondent that is intended to affect their legal relations and the Respondent having acted upon it, should be allowed to reap the benefit of such promise. Moreover, the Appellant ought to accept the consequences of the terms of their transaction. The authorities of Nwaolisah V. Nwabufoh (2011) 6 SCNJ 530 at 532, Nigeria Bank V. Integrated Gas (2005) 1 SCNJ 104 at pages 108 – 109, Kaydee Ventures V. Hon. Minister (2010) 2 SCNJ 276 at 278 – 279; Akinyemi V. ODU’A Investment (2012) 1 SCNJ 127 at 131 (S.C.); Mini Lodge V. Ngei (2009) 12 SCNJ 92 at 96 and Best V. Blackwood (2011) 1 SCNJ 282 at 285-286; cited by the learned counsel to the Respondent may have rightly decided on the enforceability of a valid contract where time is of the essence and the need to comply with the time stipulated. However, assuming this is a pure contractual agreement governed by the English Received Law, the Appellant had given uncontradicted evidence that he made attempts to fulfil his part of the bargain by redeeming the pledged property but the Respondent dodged the Appellant so that the Appellant would forfeit the house. If the time

stipulated was the end of June, 1992 and there was no demand from the Respondent until the Appellant even wrote only two days later to the Respondent, there was no undue delay on the part of the Appellant. It was only after the Respondent had received the Appellant’s letter that 2nd day of July, 1992, that the Respondent deemed it necessary by his letter of 6th July, 1992 to demand specific performance and sued the Appellant for that purpose.
On the authority of Kaydee Ventures V. Hon. Minister (supra), the original transaction was a pledge under customary law as pleaded and testified to even by the Respondent as well as the Appellant. The question that is very pertinent is whether the parties can vary a pledge agreement into a Sale Agreement.
Exhibit 2 had earlier been held to be inadmissible because it failed to comply with the provisions of Illiterates Protection Act and even without a hand writing expert the said Exhibit as compared with Exhibits 3 and 3A, are to say the least forgeries and tainted with fraud and undue influence as it has been shown that Ibrahim Dogo who purportedly signed same is an illiterate who had earlier signed the

authentic document (the pledge Agreement) by his thumb-impression. The authorities of Duruoshimiri V. Duruodunze and Usman Bua V. Dauda (supra); ably cited and relied upon by the Appellant’s counsel are applicable to the facts of this case as shall be demonstrated anon when considering the essentials of customary pledge.
As for the case of Odu’a Investment V. Akinyemi (supra), it is now elementary as the Supreme Court had held that there are three basic elements of a validly created contract which are: agreement, contract intention and consideration which ordinarily would have existed in a purely received English Law transaction since there was offer by the Appellant and acceptance by the Respondent who supplied consideration no matter how infinitesimal.
On the authority of Nwaolisah V. Nwabufoh (supra), I disagree vehemently that the Notice served on the Respondent was an after thought since there is ample evidence on record that the Appellant made several attempts to pay the pledge money back to the Respondent who dodged the Appellant in order to take over the Appellant’s property. It must be noted that even though time is of the

essence, by the doctrine of perpetual redeemability, time cannot run against the redemption of the pledge property. See Kofi V. Kofi (1933) 1 WACA 284, Orisharinu V. Mefice (1937) 13 N. L. R. 181, Ifeanyi V. Adighoghu (1957) 2 E. R. L. R. 38 at 39; Leragun V. Funlaya (1955 – 56) W. R. N. L. R. 167.
Turning to the authority ofMini Lodge V. Ngei (2009) 12 SCNJ 92 at 96; on the absoluteness of a contract of Sale where part payment is made, I reiterate that the original transaction between the parties was a pledge which is redeemable in perpetuity and cannot metamorphose into a sale.
Now, as earlier held in partial agreement by the Learned Trial Judge’s findings at page 225 of the Records/26 of the Judgment lines 26 to 30, from the pleadings of the Plaintiff (Respondent in his Amended Statement of Claim) the Statement of Defence of the Defendant/Appellant as well as their testimonies and those of their respective witnesses and Exhibits 3 and 3A tendered by the Appellant, the initial Agreement between the parties was that of a pledge. In the course of this judgment, I was availed the text

“LAND LAW IN NIGERIA’ BY M. G. YAKUBU (MACMILLAN INTERNATIONAL COLLEGE) EDITIONS, 1985 EDITION AT PAGES 36 TO 38. At page 36, the Learned Author had defined a ‘Pledge’ following Adjei V. Dahanka (1930) 1 WACA 63 at pp. 66 – 67 as:-
“A kind of indigenous mortgage by which the owner – occupier of land, in order to secure an advance of money or money’s worth, gives possession and use of the land to the pledge creditor until the debt is fully paid or discharged.”
According to the Learned Author, “it may be defined as delivery of possession and custody of a piece of land by a pledgor to a pledge to hold and use until the agreement is determined or discharged. Where the pledgor pledged land to the pledgee, the latter has acquired an interest in the said land. The rights of the former holder will be taken over by the new holder. Pledge is a common practice by the rights are vested in the land. It is one of the oldest ways of customary acquisition of lane.”
As in this case, a pledge is said usually to occur when a person like the Appellant who was pressed by health challenges had no means and decided to pledge his house the subject

matter of this Appeal to enable him seek medical attention. On the fundamental principle of a pledge under Customary Law like transaction entered into by the Appellant and Respondent in Exhibit 3, the Learned Author again noted that the pledged property can always be redeemed by the pledgor or his representatives. It is never lost under the principle of foreclosure as in the case of a mortgage for the maxim is that “once a pledge, always a pledge.”
See also PROFESSOR B.O. NWABUEZE’S “NIGERIAN LAND LAW” NWAMIFE PUBLISHERS LIMITED, ENUGU, NIGERIA, 1982 EDITION AT PAGES 273 TO 285.
Thus, as was rightly cited by the learned Counsel,Okoye V. Obiaso (2010) 22 WRN 39 at 45 line 40 per Onnoghen, JSC (as he then was) just like a pledge does not ripen to ownership because once a pledge always a pledge so can a pledge not ripen into a sale. In the course of writing this judgment, I was also privileged to have been availed the text “Modern Nigerian Land Law” by Professor P. A. O. Oluyede where at pages 124-127 thereof he Learned Author under the topic “Hybrid Transactions for Loan” wrote that: It appears

that parties to a loan transaction in respect of a piece of land or a house can create obligation between themselves which are partly those of a pawn or pledge and partly those of a mortgage under the general law. For instance where two persons have entered into a loan transaction and a dispute had subsequently arisen over whether it was a pledge or mortgage, the Courts have always sought the answer from the intention of the parties.
In some cases, the question may be whether the document constituted an agreement for sale (as in this case) or mortgage of land. In Savage V. Uwechia (1961) 1 ALL ER 830; both the Federal Supreme Court of Nigeria and the Privy Council used the test o the intention of the parties in construing the document in that case and came to the conclusion that it contained neither any ingredients of any mortgage nor any words to indicate that the land was given as security under customary law.” See page 124.
At page 125 of the text, the learned Author recalled that in the Savage V. Uwechia case, the Respondent as in this case claimed specific performance of an agreement made between him and the deceased to convey certain

property in Onitsha Eastern Nigeria, to him. He tendered a copy of a document captioned “Promissory Note” which read:
“I promise to pay Mathew Uwechia on order three months after date the sum of seven hundred and eighty pounds for value received or in default to convey to him all those messages together with the appurtenances thereto situate at No. 6 New Market Road in the township of Onitsha, to hold the same unto the said Mathew Uwechiaon order in fee simple. Sgd. S. O. Rotibi.”
When the matter got to the Supreme Federal Court, their Lordships found that the document was an agreement to pay a specific amount by a certain date, and in default of payment to convey the property referred to, and ordered specific performance just as in our instance case. On appeal to the Privy Council, the decision of the Federal Supreme Court was rejected and it was held that: “On the construction of the document, there was no contract for the sale of the land or, to put the matter in another way, the relationship of vendor and purchaser was never established between the Respondent and the deceased.”
The Learned Author, alluded

also to the comment on the above judgment by Professor Allot who observed that in West Africa informal “charges” are made by which a loan is secured on land and that a record of the transaction is made in “Promissory Note” or similar document. Such charges, according to the Learned Professor, are a feature of modern development in customary law and that those “Promissory Notes” or “Receipts” are not instruments by which rights are created, but merely a partial memorandum of the agreement of the parties. See page 126 of the text.
As for Professor Oluyede, he had earlier at page 125 reflected on the various High Court Statutes in Nigeria that provided that no party shall be entitled to claim the benefit of any customary law, if it shall appear from the express contract or from the nature of the transactions out of which any suit or question may have arisen, that such a party agreed that his obligations in connection with such transactions should be exclusively regulated otherwise than by customary law and remarked that by the above provision, cases should be determined according to one system of law or the

other and not an admixture.
Furthermore, by the above quoted provision, the Learned Author agreed that an agreement for the applicability of the general legal principle is effective only if the parties agreed that it should “exclusively” regulate their relationship. But there is nothing in the provision to suggest that parties cannot regulate their relationship according to the law or laws which they like. It was therefore his view that if his proposition were accepted, then there is the possibility of parties to a loan on land, agreeing on different systems of law for different issues arising out of the same transaction.
According to him, “Therefore, a hybrid, pledge – mortgage or conditional sale cum mortgage transaction are possible and infact are springing up in many places in Nigeria.”
The position taken by the Learned Professor notwithstanding and even if we agree that this is a hybrid of pledge cum conditional sale, I reiterate that the transaction was ab initio a pledge and once a pledge always a pledge. Again even if the second Agreement turned out to be that of conditional sale, the Appellant made

attempts to redeem the pledge at the earliest opportunity eight days before expiration and accordingly the Respondent is bound by the doctrine of perpetual redeemability and the Court ought not to order specific performance of the sale of the Appellant’s house as the Respondent contributed to Appellant’s inability to discharge or redeem the pledge as at when due when he (Respondent) with the tacit connivance of the PW3 mischievously made himself unavailable at the various times the Appellant went to his house with the PW3 and his (Appellant’s ) son Iliya (the DW2).
I accordingly agree with the submissions of the Learned Counsel on the authorities of Akuche V. Nwamadi (supra), Okoiko & Anor. V. Esedalue (supra), N. B. C. I. V. Dauphin (Nig.) (supra); Oyeneyin V. Akinkugbe (2001) 1 NWLR (pt. 693) 40 and Corporate Ideal Insurance Ltd V. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (pt. 1405) 165; that apart from the illegality of Exhibit 2, the purported Sale Agreement is tainted with fraud and undue influence. As rightly submitted by the Learned Counsel to the Appellant, the Respondent who took possession of the pledged property and was even

collecting monthly rent when the Appellant approached him for an additional sum of N10,000.00 cannot very the terms of the pledge when same was still subsisting. I therefore agree that the decision of the Court enforcing the illegal transaction of the purported sale is perverse. Accordingly, Issue Number 1 (ONE) is resolved in favour of the Appellant.

RESOLUTION OF ISSUE NUMBER 2 (TWO):
Having resolved Issue Number 1 (ONE) in favour of the Appellant, the other Issue is merely academic. In the first place, if there was any witness who gave a lucid account of what transpired, it was the DW2 (Iliya Ibrahim). He buttressed his father’s case in all material particulars as he participated in the transactions from the beginning to the end. In his evidence-in-chief, he related how his father was sick and the said father called him to go and call Angulu Jatau (the PW3) who came and his father told the PW3 to look for someone to receive his houses on pledge to enable his said father go for treatment. He was junior to his other siblings Kasimu and Haliru who were sued along with his father as co-Defendants and by then his said seniors were not at home.

The pledge according to him was for N10,000.00 and the interest was N600.00 per month.

Angulu left and came with the Respondent and Dikko after three days and upon the father having asked Angulu about the Respondent as the person he brought and Angulu answered in the affirmative, the Respondent brought out N10,000.00 (Ten thousand) and gave it to PW3 who in turn gave the money to his father. His father removed N600.00 (Six Hundred Naira) and gave to the Respondent as interest. An Agreement was then written that the pledge was for six months at the expiration of which the said sum of N10,000.00 would be refunded to redeem the pledge. He stated further, that it was his father who insisted on the written Agreement so he (DW2) brought out a piece of paper and gave to Dikko but he would not know whether Dikko have another name. When Dikko wrote the Agreement, he read it to the hearing of everybody and it was only a copy that was made. Dikko wrote the Agreement with a biro and in Hausa Language and he (DW2) signed same as a witness to his father but his father thumb printed. The Respondent and Angulu signed. He identified Exhibit 3 as the Agreement he signed.

His father retained the Agreement and when the Respondent requested that it be given to him, his father refused on the ground that if he died, the Agreement would be his witness and everybody dispersed and his father went to look for medicine. The witness stated further that the money was exhausted but his father was still sick but that on the second month his father sent for him to go and call Angulu who came. His father fold Angulu that he needed N10,000.00 more from the Respondent so as to continue with the treatment in Bauchi. Angulu went to the Respondent and brought N10,000.00 and gave to his father who removed N600.00 five times for five months and gave to Angulu to give to the Respondent as his interest. Angulu then told his father that the total sum was N20,000.00 which should be refunded at the end of six months as agreed the first time. His father went for treatment and when his father came back from treatment shortly before the expiration of the deadline and continued treatment at home, Kasimu and Haliru came back home from Eke in Cross River State and when the following day their father explained the pledge transaction to them, they

kept grumbling why their father should pledge the house without first looking for them knowing fully that they own the house together. The two children then went and brought the sum of N20,000.00 and gave their father to refund to the Respondent as the mature period of the pledge was just about eight days away.

On the evidence that the Appellant made attempts to redeem the pledge but the Respondent in tacit connivance with the PW3 dodged so that the time would lapse, the witness at page 77 lines 17-28 to page 78 lines 1-18 states thus:
“My father then told me that we should go to Angulu and give them their money. When we met Angulu, he asked my father whether he has recovered. He said he has not recovered but he has gotten the money. Angulu then told us to go to the Plaintiff. When we went, Alhaji Angulu went into the house, after a while, he came back and said the Plaintiff is not at home; so we came back home. The following day, we again went to Angulu’s house, we all went to the Plaintiff’s house. Alhaji Angulu went into the house and for a while came out and said the Plaintiff is not at home. My father grew annoyed and asked

Alhaji Angulu whether he knows where the Plaintiff went. Alhaji Angulu then said he is on business. My father then said he will give transport money to go and look for him. He never said where he was carrying on the business.
Angulu refused to receive the money as he does not know where to get the Plaintiff. Father told Alhaji Angulu to receive the N20, 000.00 and keep for the Plaintiff. He refused to receive the money that he cannot keep such money. Alhaji Angulu told my father to take the money home, if the Plaintiff comes, they will come and receive the money and my father brought back the money. The third day, my father told me that these (Angulu and Plaintiff) are dribbling him so that the period of the pledge will lapse. My father then asked us to go to Barrister Yusuf. My father explained to him his mission as pledge and what happened. Yusuf asked for the money. My father gave him the N20,000.00. Yusuf told us to go to the Plaintiff’s house and inform him to come and collect his money but only met the Plaintiff’s father who told us that Plaintiff is not at home. We came back and reported to Yusuf. He told us to come back the following

day. The following day, Yusuf again sent us to the Plaintiff. We went and met his father who told us that the Plaintiff was absent so we went back and told Yusuf. He told us to go back home and come back the following day. We came the following day, Yusuf wrote a letter and gave to his messenger with an instruction that if he did not meet the Plaintiff, we should give the letter to his father. We went and met the Plaintiff’s father who told us that the Plaintiff is away. So the messenger gave the father the letter for the Plaintiff to come and receive his money from Yusuf.
The witness concluded his evidence-in-chief by stating that one day they saw somebody who came to his father and informed the Appellant that he had been sued to Court and after some persuasion, the Appellant collected the summons and took same to Barrister Yusuf. According to him, apart from Exhibit 3, there is no other agreement in relation to the pledge. Exhibit 4 is the letter written by Yusuf.”

The witness was vigorously cross-examined by Mr. Idris, the Learned Counsel to the Respondent and he stated that as at the time of writing Exhibit 3, the remaining Defendants

were not present and when they discovered that their father had pledged the house, they were annoyed because they were not consulted. He asserted that the other Defendants wanted consultation because they jointly owned the house with the Appellant. He reiterated that the pledge was redeemable in six months and within those six months, there was never a time the Plaintiff requested for the refund of his money nor did he send Angulu Jatau or any person else to come and demand the money from the Appellant. Also, before the Respondent instituted the action, he never demanded a refund of the money from his witness’s father.

Under further cross-examination by Mr. Ikoti for the Plaintiff, he admitted that he liked his father very much and that the property in question belonged to his father and further that he could do anything to protect his father by telling the truth as he would neither take sides with his father or plaintiff. He admitted that all that he said was the truth to protect his inheritance. He further admitted that he was present when the first N10,000.00 was given to his father but that Plaintiff was not present when the second N10,000.00

was given to his father nor was Dikko and if Dikko was around he (DW2) could not have written the Agreement Exhibit 3 even though he (the witness) can read and write as he cannot write Agreement.

On further cross-examination, he reiterated that no Agreement was written in relation to the second N10,000.00 that was given to his father and they did not intend to cheat the Respondent by refusing to write the Agreement. When shown Exhibit 2, he denied signing same and there is nowhere in Exhibit 2 that there is a semblance of his signature.

Finally, the witness testified under cross-examination that: “At the time my father was pledging the house, I did not know that my other brothers contributed in building the house. At that time, I thought the whole property belonged to my father. At that time, I did not see any of my brothers contributing money to my father to build the house.”

From all that has been reproduced above, the findings of the Learned Trial Judge at page 228 lines 3-8 of the Records/page 29 of the judgment that:-
“Further in his paragraph 9 of the Statement of Defence averred that he PWIII went to the

Plaintiff’s house about three times looking for him to refund the money but Plaintiff was avoiding contact. In paragraph 9, he never stated that he went to the house of Plaintiff together with DWII but from the blues DWII emerged.
His evidence was taken to that affect but there is no application to amend the pleadings and incorporate his evidence. His evidence is therefore of no evidential value”; is to say the least perverse.

Although I agree completely with the submission of the Learned Counsel to the Respondent and on the authorities of Irolo v. Uka (2002) 7b SCNJ 138 at 141, Chief Gafaru V. Chief Olowokere (2011) 12 SCNJ 269 at 293 and in particular Adewunmi V. Akin Mabogunje (2013) 1 SCNJ 175 at 185; that the evaluation of evidence and ascription of probative value is within the exclusive domain of a trial Court because of its rare advantage of hearing and watching the demeanour of witnesses in course of trial, and that where evaluation of evidence entails issues of credibility of witnesses, an Appellant Court should be wary to differ from the trial Judge’s findings of fact based on credibility of witnesses, where such findings

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are perverse as in this case, an Appellate Court can interfere with such findings.
As was also rightly submitted by the Learned Counsel to the Appellant, since the Appellant had pleaded in paragraphs 9, 10 and 11 of his Statement of Defence that before the end of June, 1992, he had paid several visits to the Respondent’s house in order to redeem the pledge but discovered that the Respondent was dodging him which led to the eventual briefing of Barrister Yusuf and depositing the N20,000.00 with the said Barrister for remittance or collection by the Respondent, and since the Appellant even testified to this fact at page 71 lines 5-15 of the Records that he was accompanied on these visits by the DW2 his son (Iliya), the said DW2 did not emerge from the blues so as to warrant the conclusion that his testimony was of no evidential value.
In fact as was also submitted by the Learned Counsel to the Appellant, the Appellant needed not plead the name of the DW2 as the Rules of pleading required the Appellant to plead facts and not evidence or names of those that he will use to establish those facts. Ukaegbu V. Ugoji (1991) 6 NWLR (pt. 196) 127 (SC);

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Onwuka V. Omogui (1992) 2 NWLR (pt. 230) 393 and the celebrated case of Ezemba V. Ibeneme (2005) 1 FWLR page 305; were aptly cited and relied upon by the Learned Counsel.
I had earlier held that of all the witnesses at the trial, none was as lucid and elaborate account of what transpired between the parties in this suit than the DW2 as is chronicled by the Learned Counsel to the Appellant, he featured prominently as a witness in Exhibit 3 at the beginning of the pledge transaction; his name was inserted in Exhibit 2 the discredited/purported second Agreement of Sale, yet the Court held that his testimony was of no evidential value thereby rejecting the totality of his evidence. I agree that the witness was not discredited in the course of cross-examination and on the authorities of Aikhionbare V. Omorogie (1976) 12 SC; Ogualaji V. Attorney-General (1997) 5 SCNJ 240 at 243, Nwabuoku V. OTTIH (1961) ALL NLR 487 and Ulegede V. Military Administrator of Benue State (2001) 2 NWLR (pt. 696) 23; the evidence of the DW2 that he accompanied his father on the attempts to redeem the pledges was direct and ought to be accepted by the Court below and relied upon to

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establish this fact.
I agree therefore that the findings of the Learned Trial Judge as earlier highlighted occasioned the Appellant great miscarriage of justice and therefore cannot stand since it violated the Appellant’s right to fair hearing.

On the second arm of this issue which was the refusal of the Learned Trial Judge to grant the Appellant’s Application for amendment of his Statement of Defence, I have searched through the Record of Appeal and discovered that at page 147 thereof, the learned Counsel to the Appellant informed the Court on the 20th day of October, 2004 that he had just filed a motion supposedly for the amendment of the Statement of Defence that day, as earlier highlighted and IKOTI, ESQ., for the Respondent having acknowledged service both counsel agreed for an adjournment which the Court granted and the case was adjourned to the 2nd day of December, 2004 for motion.
However, it was not until 11th day of January, 2005 that that motion was heard and argued an further adjourned to the 2nd day of February 2005 for Ruling. On the 4th day of February, 2005 the learned trial Judge delivered his Ruling refusing and

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dismissing the motion for amendment of the Appellant’s application for amendment of the Statement of Defence.
The learned Counsel for the Appellant had rightly cited the provisions of Order 26, Rules 1, 2 and 3 of the Plateau State, High Court (Civil Procedure) Rules applicable to Nasarawa State High Court then which allows a party to amend his pleadings at any time when the proceedings are ongoing.
Accordingly, as was decided in AMANSO & ANOR V. R.T.D.T.C. (2009) 17 NWLR (Pt. 170) 207 at 215 paras. D-G, where Ngwuta, JCA (as he then) was posited on the authorities of Ojah & Ors. V. Ogboni & Ors (1976) 1 NWLR 95; T. Udensi V. Harper (1878) WCHD 393, 396; Oguntimeyin & Ors. V. Gubere(1964) 1 ALL NLR 176 and Amadi V. Thomas Aplin & Co. Ltd (1972) 1 ALL NLR 409; which are land mark authorities on amendment of pleadings that all high judicial proceedings a party’s case must be presented in consonance with the pleadings predicated on the originating process in spite of detection of errors of omission and or commission or new and more material facts.
Amendments checkmate injustice that may result from the

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principle that parties and indeed the Courts are bound by the pleading and developments are necessary for the purpose of identifying the real issues in controversy between the parties. Important as it is, an amendment is not granted as a matter of form. It is granted or denial is subject to the judicial and judicial exercise of the discretion of the Court before which the application for amendment is brought. Bearing in mind the need to isolate the real issues in dispute between the parties a plethora of cases seem to indicate that Courts tend to err on the side of caution and will allow amendment unless it will entail our justice to the Respondent or the application for amendment is brought in bad faith.
On the purpose of the phrase “at any stage of the proceedings before, final judgment” which is used in almost all provisions of the Rules of all the Courts of Records in this country as far as amendment of pleadings is concerned, the Legendary Okputa, JSC (of blessed) memory had cause to explain in the celebrated case of AKOH V. ABU (1983) 3 NWLR (Pt. 85) 696 at 719 paras B-F; that the expression had been judicial interpretation of our

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highest Courts. For instance, in Onyeama Ezenwa V, Samuel I. Mazeli & Ors. (1955) 15 W.A.C. 467 which he cited, the West African Court of Appeal held that during the hearing or “at any stage of the proceedings” meant what it says and that a trial judge may, where necessary, reopen the hearing before delivering his final judgment/decision.
The erudite Legal Guru then reasoned that if a case can be reopened anytime and at any stage before final judgment, then it can also be transferred anytime before final judgment if there exists a power as in the case of Akoh V. Abu which was the subject matter in the Apex Court.
On the core of the issue now before us which is the refusal to grant the Defendant (now Appellant) the application for amendment of his Statement of Defence, the learned Law Lord of blessed memory, alluded to the case of Rainy V. Bravo (1872) L.R. 4P.C. 287; where an application for an amendment was made when the trial Judge was infact reading his judgment. It was refused as having been applied for, far too late. On appeal to the Privy Council, it was held at page 298 of the Report allowing the amendment thus:

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“At the end of his case, it must have been apparent that there was a variance between the evidence of the witnesses and the Statement of the libel in the declaration and then before the Judge had pronounced the decision. It was the proper time for the Appellant to have applied to him for amendment.
Thus the Privy Council allowed the amendment when the Judgment was being read.”
See further per Karibi-Whyte, JSC in Prince Godfrey Kolawole Mustapha V. Governor of Lagos State & Ors (1987) LPELR 1931 (SC) p. 80 PARAS A-C. Okolo & Anor. V. Union Bank of Nigeria Ltd (1999) LPWLR – 2464 (SC) P. 25 paras A-E; Jessica Trading Co. Ltd v. Bendel Insurance Ltd. (1993) LPELR – 1608 (SC) per Nnaemeka-Agu, JSC at pages 21-22 paras E-D and Nze Edward Ali V. Engr. Cornelius Chika Uzoigwe & Ors. (2016) LPELR – 40972 (CA) at 27-34, paras E-F; per Agube, JCA and Chief Emmanuel Eyo Eta & Anor. V. Chief Okon H.A. Dazie (2013) LPELR – 20136 (S.C.) at 28 paras A-E.
The bottom line of all these authorities is that amendment should be allowed even to fall in line with evidence already added provided such amendment is not intended

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to over reach the other party and unless will entail injustice to the other party or that the party seeking the amendment is acting malafide.
In the instant case, the judgment of the Court had not been fixed for delivery and indeed whereas these applications for amendment were brought in 2002 and 2004 respectively, it was not until 2005 that judgment was delivered. Accordingly, since from the affidavit of the learned counsel to the Applicant the delay in the amendment was as a result of his inadvertence, the law is trite that the sins of counsel should not be visited on an innocent litigant.
In any case, the issue of the refusal of amendment had been settled by the learned trial Judge at page 220/20 of the Records/Judgment when he held in lines 19-28 inter alia:
“From the foregoing, it is clear that the Defendant filed his Statement of Defence based on the original statement of defence of the Plaintiff.
There are variations in the amended statement of claim. The numbering of the statement of defence of the Defendant do not tally with the amended statement of claim.
In effect what he pleaded will be at variance with his evidence

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in line with what the Plaintiff averred and adduced evidence.
However, looking at the entire statement of defence he will be said to have denied what was amended by the Plaintiff even though some of the paragraphs did not specifically deny the facts deposed by the Plaintiff. See Order 23 Rule 9 of the rules of the Court and the case of FBN Plc Vs. Excel Plastic Ltd (supra).”
From the foregoing, it was wrong for the learned trial Judge to have refused the application for amendment yet in his judgment proceeded to fault the Appellant’s case on account of insufficient averment and failure to lead the name of a witness. Irrespective of the authorities of EZEIGWE V. NWAWULU (2010) 2 SCNJ 112 R. 25 AT P. 148 and CYPRIAN V. LOUISE (2002) 2 SCNJ 271 AT page 273 Ratio 1; that: “What is necessary in the exercise of the right to fair hearing is the opportunity to be heard, where one was given the opportunity but he failed or neglected or refused to utilize same, he cannot be heard to complain of lack of fair hearing”; and the fact that the test of fair hearing lies in the procedure and not in the correctness of the decision arrived at, as

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submitted by the learned Counsel to the Respondent an un-officious by-stander who watched the proceedings of the Court or read the records will come to the inevitable conclusion that the Court below was patiently biased against the Appellant and deprive him of his right to fair hearing. See ASTC V. QUORUM CONSORTIUM LTD (2004) 1 NWLR, OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PT. 730 403, SOMAI SONKA CO. NIG LTD V. ADZEGE (2001) 9 NWLR (PT. 718) 312 all cited Per Tobi, JSC in PAM & ANOR. V. MOHAMMED & ANOR. (2008) 16 NWLR (Pt 1112) 1 at 68-69 G-A.

On the whole, this second Issue is also resolved in favour of the Appellant and against the Respondent. This appeal is therefore meritorious and hereby succeeds. The judgment of the HON. JUSTICE ISA A. RAMALAN of the High Court of Justice Nasarawa delivered on the 5th day of August, 2005 is hereby set aside and the claim of the Plaintiff dismissed.
Parties shall bear their respective costs.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Ignatitis Igwe Agube, JCA, in which this appeal was allowed. The resolution

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of the issues arising for determination have been fully considered and resolved, and, I adopt same as mine.

The appeal is meritorious. I will only emphasize that it is well settled that an amendment which seeks to bring the pleadings in line with evidence already given is not intended to overreach and is within the competence of the trial Court to allow; A C B. Ltd V. Ewarami (1978) LPELR-201 (SC); Ehidimhen V. Musa & Anor (2000) LPELR-1051 (SC); Eta & Anor V. Dazie (2013) LPELR-2013(SC). The only caution would be when the applicant acts mala fide or when the amendment would entail injustice to the other party. Neither exception was demonstrated in this case. The learned trial Judge therefore ought to have granted the amendment in the circumstance.

For this reason and for the more comprehensive reasons given in the lead Judgment, I also allow this appeal and abide by the orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance a copy of the lead judgment of my learned brother. Agube, JCA. I agree with the reasoning and conclusion therein that the appeal has merit.

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The law is that “once a pledge always a pledge”. It is therefore not possible under customary law for a pledge to metamorphose into an outright sale of the property involved without an express agreement in the same form that the original pledge was made. See Ochonma V. Unosi (1965) NMLR 321, Ebevuhe V. Ukpakara (1996) 7 NWLR (Pt. 460) 254 and Yashe V. Umar (2003) 13 NWLR (Pt. 838) 465. Exhibits 3 and 3A show that the original transaction was a pledge. Exhibit 2 which was tendered to show that the said transaction had evolved into a sale transaction has been shown to be inadmissible. However, it is clear from evidence on record including the testimony of the appellant and Exhibit 4, (appellant’s solicitor’s letter) that the parties subsequently agreed that if the appellant failed to redeem the pledge, the appellant would forfeit the house to the respondent upon payment of additional sum of N2,000.00 to the appellant.
It is clear that before the time fixed by the parties, the appellant made efforts to redeem the pledge but the respondent frustrated his efforts by making himself unavailable to receive the pledge sum. Therefore the appellant engaged the services of a

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solicitor to write Exhibit 4 to the respondent to collect the pledge sum. The respondent cannot be allowed to benefit from his wrong by seeking to invoke the latter agreement when he made it impossible for the appellant to redeem the pledge. A person cannot be allowed to take advantage of his own wrong and he may not plead in his own interest a self-created necessity. See Shell Petroleum Development Company (Nig) Ltd V. Allaputa (2005) 9 NWLR (Pt. 931) 475 and Adetoro V. UBN Plc (2008) 13 NWLR (Pt. 1104) 255.

On account of the foregoing and fuller reasons articulated in the lead judgment, I also allow the appeal and abide by the consequential orders made in the lead judgment.

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Appearances:

D.C. Ucheaguwa, Esq. with him, O.I. Ajegena, Esq. For Appellant(s)

Chukwuma Ezeani, Esq. For Respondent(s)