HALIRU MUHAMMAD v. MUNTARI BALA
(2019)LCN/12532(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/S/149/2016
RATIO
INTERPRETATION: MEANING OF FRAUD
“In MBANUGO V. STATE (2017) LPELR-43581 CA it was held thus:- ‘Fraudulent act or conduct was defined in the case of NIMASA V. STEPHEN ODEY (2013) LPELR-21402 (CA) in the following way:-
‘It is a conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude; also termed dishonest act; fraudulent act’. It could also be an assertion that does not conform to facts. The Apex Court in yet another case defined fraud thus: ‘Turning now to the meaning of ‘fraud’ in connection with representation, it is firmly settled that whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is, for purposes of civil liability, as fraudulent as if he had stated that which he did not know to be true, or he knew or believed to be false’. Fraud is said to be proved when it is shown that a false representation has been made by the person representing the facts in the following circumstances: –
1) Knowing, or
2) Without belief in its truth;
3) Recklessly, carelessly whether it is true or false. This is just an instance of the second above. See AFEGBAI V. A. G. EDO STATE (2001) 14 NWLR (Part 733) 425. At Page 32 of the Record of Appeal, the Respondent before the lower Court in his evidence in chief stated that: – ‘When I started the building on the 2nd plot the Ministry of lands and housing informed me that the plot sold to me does not belong to the defendantthat the plot belongs to D. I. G. Labaran Wurno. The defendant was directed to refund my money. He agreed to refund my money with all the expenses I incurred in building the fence.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
HALIRU MUHAMMAD Appellant(s)
AND
MUNTARI BALA Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Sokoto State High Court in Suit No. SS/41/2014 delivered by Duwale J., on 15th February, 2016, wherein it ordered the Appellant to pay the Respondent the sum of N3,370,000.00 (Three Million Three Hundred and Seventy Thousand Naira Only) being the amount he paid as consideration for the sale of two plots of land to him by the Respondent.
FACTS
The Appellant sold a plot of land to the Respondent at Gwiwa low cost Area, Sokoto in August, 2012 at the cost of N1,500,000.00K (One Million Five Hundred Thousand Naira) which the Respondent paid. An agreement was written over the said transaction. Some months later it was discovered that the Appellant does not have valid title to the plot of land. The Appellant agreed to pay back the money to the Respondent. The Appellant approached the Respondent with another plot of land which is situated at Bafarawa Estate Sokoto. The Respondent paid a total sum of N2,100,000.00 (Two Million One Hundred Thousand Naira Only) out of the agreed sum of N2,600,000.00 (Two Million Six Hundred Thousand Naira Only).
An agreement was written to that effect also. It was later discovered that the Appellant has no valid title over it. The Appellant agreed to pay back the money totaling N3,750,000.00 (Three Million Seven Hundred and Fifty Thousand Naira Only) to the Respondent in respect of the two plots of land including the expenses incurred in developing the plots. A written undertaking was made to that effect by the Appellant. He paid the Respondent N400,000.00 (Four Hundred Thousand Naira Only) out of the amount, leaving the unpaid balance of N3,350,000.00 (Three Million Three Hundred and Fifty Thousand Naira only). That the Appellant stopped paying the Respondent the balance of the money.
The Respondent by a writ of summons dated 20th June, 2014 filed Suit No SS/41/2014 before the Sokoto High Court claiming the sum of N3,350,000.00 (Three Million Three Hundred and Fifty Thousand Naira Only) being the price of two plots of land fraudulently sold to the Respondent by the Appellant. The Appellant also counter claimed. The Respondent called seven witnesses in support of his claims while the Appellant called four witnesses. The lower Court entered judgment in favour of the Respondent and refused to grant the Counter Claim. Dissatisfied, the Appellant filed this Appeal by a Notice of Appeal filed on 24/03/2016. The Record of Appeal filed on 19/12/16 was deemed compiled and transmitted on 16/10/2017. The Notice of Appeal is basically predicated on two grounds:-
1) The Court below erred in law which occasioned miscarriage of Justice when it entered judgment in favour of the Respondent in the absence of any proof and or findings that there was a fraudulent sale of land by the Appellant to the Respondent.
2) The Court below erred in law when it dismissed the counter claims of the Appellant even though there was sufficient evidence to show the entitlement of the Appellant to the counter claims.
The Appellant’s Brief of argument filed on 27/03/2018 was deemed filed and served on 17/04/2018 and settled by Ibrahim Abdullahi Esq. The Respondent’s Brief of argument filed on 14/05/2018 was settled by A.Y. Abubakar Esq. The Appellant adopted his brief through his Counsel in which he formulated two issues for determination: –
1) Whether the Judgment of the lower Court entering Judgment in favour of the Respondent is in accordance with the law (Distilled from grounds 1 & 2).
2) Whether the Judgment of the lower Court dismissing the counter claims of Appellant was in accordance with the law (Distilled from ground 3).
The Respondent adopted the same issues for determination formulated by the Appellant.
SUBMISSIONS OF APPELLANT?S COUNSEL
As regards issue one, the Appellant argued that in civil cases he who assert must prove, that at Paragraphs 15, 16 and 18 of the Statement of Claim, the Respondent made an allegation of fraud against the Appellant. That the Appellant sold the two plots of land to him fraudulently. According to Counsel, the law is trite as required by Section 135 (1) of the Evidence Act that if there is an allegation of crime in civil or criminal proceedings it must be proved beyond reasonable doubt. He referred to AFOLALU V. STATE (2010) AFWLR (Part 588) Page 812.
Counsel referred to Sections 138 and 139 of the Evidence Act and submitted that it is incumbent on the Respondent to prove that the Appellant perpetrated fraud upon the sale of the two plots to him to enable him succeed on the reliefs as granted by the lower Court.
That by Paragraphs 4-18 of the Respondent?s statement of claim, he placed reliance on documentary evidence to show that the Appellant sold the plots of land to him fraudulently. That the Respondent tendered Exhibits A, B, B1, C, C1, D, D1. And E. Counsel referred to the evidence of PW1 at Page 24 of the Record under cross examination and submitted that the witness stated that the first plot of land was verified from the Ministry of Lands and to be genuine.
That at Page 25 of the Records PW1 further stated that they did not investigate the genuineness of Exhibit A because they are satisfied with it. According to Counsel, at Pages 39 – 41 the Respondent sought to tender photocopies of some documents which were not certified and were accordingly rejected by the lower Court. He therefore submitted that there were therefore no contrary documents to show that Exhibit A was forged. Counsel referred to Page 95 of the Records and submitted that the lower Court did not make any specific finding on proof beyond reasonable doubt on the allegation of fraud and or issuance of fake documents of sale made by the Respondent against the Appellant. He referred to YAKUBU V. JAUROYEL & ORS (2014) LPLER 22732 (SC) and submitted that it is the duty of the lower Court to properly consider all issues brought before it. That failure to do that is a denial of fair hearing which is capable of rendering the entire proceedings a nullity and cited TANKO V. UBA Plc. (2010) 17 NWLR (Part 1221) Page 80 at 92.
Appellant’s Counsel further submitted that PW1 at Page 24 of the Record stated under cross examination that it was on 24/08/2004 that they purchased the first plot from the Appellant. While PW3 said at Page 31 of the Records that it was on 22/08/2012 that PW1 called him and PW3 requested him to purchase a plot of land at Gwiwa Close to Bafarawa which he paid. That at Paragraph 3 of the statement of claim of the Respondent contained at Page 6 of the Records, the Respondent stated that it was in the year 2008 that the Appellant purportedly approached him for the sale of the first plot of land to the Respondent valued at N1,500,000.00. According to Counsel, the Respondent was clearly prevaricating between three days 2008, 24/08/2004 and 24/08/2012. He referred to ONWE V. THE STATE (2017) LPELR-42589 (SC).
That the Respondent gave contradictory evidence at Pages 33 & 34 of the Records; while at Page 33 he said in respect of the second plot the defendant did not give him letter of grant. At Page 34, he said the Ministry of land confiscated the letter of grant given to him by the defendant in respect of the second plot. Counsel submitted that in relation to the purported owner of the second plot of land different versions of evidence abound. That at Page 22 PW1 said the second plot belongs to D.I.G Labaran Wurno Rtd. and not the Appellant. That under re examination, the same witness said it belongs to D.I.G. Labaran Shehu. While PW6 at Page 39 said the plot belongs to D.I.G. Bello Labaran Wurno. He cited IGE V. AKEJU (1994) 4 NWLR (Part 340) 535 at 546 and submitted that when the evidence of a witness is contradictory with the pleadings, such evidence should be rejected. That whoever the owner of the second plot is was a vital witness but was not called before the lower Court by the Respondent. That notwithstanding the absence of that vital witness, the lower Court found in favour of the Respondent.
According to counsel, PW3 stated at Page 32 of the Records that he spent N300,000.00 in constructing a parameter fence on the first plot of land purchased by the Respondent but the Appellant agreed to pay him half of the money N150,000.00 culminating in Exhibits E & E1 is in the nature of special damages which must not only be pleaded but proved strictly. He referred to ALHAJI OTARU & SONS LTD. V. IDRIS & ANOR. (1999) 6 NWLR (Part 606) Page 330. He submitted that it was wrong for the lower Court to conclude that the Respondent has proved his claims when PW1 stated in his evidence at Page 23 of the Records that even before the Respondent started building, a purported rival claim was set forth by PW7. That a perusal of the exhibits tendered by the Respondent show that the purported commission of a crime as a condition for the repudiation of the contract was never envisaged. He urged the Court to resolve the first issue in favour of the Appellant against the Respondent.
On the second issue, whether the dismissal of the Counter Claim of the Appellant by the lower Court was correct in law; Counsel submitted that the counter claim is contained at Pages 12-13 of the Record of Appeal. That in proof of the counter claim, DW2 at Pages 50-51 said he sold the disputed lands to the Appellant and in furtherance of which Exhibits F & F1 were tendered. That at Page 52 of the Record DW3 confirmed that the two plots of land sold to the Respondent were the ones sold to the Appellant. This according to Counsel made the Appellant a bonafide purchaser for value. He submitted that the lower Court at Pages 96-97 of the Records proceeded on a wrong footing that because the signature of the Appellant did not feature on Exhibits F and F1, no probative value ought to be attached to them.
According to Counsel, the exhibits show that the name of the Appellant appeared as the one from whom consideration flowed and to whom the property was sold to. This Counsel submitted, is enough to make the Appellant privy to exhibits F & F1 respectively. He urged the Court to resolve the second issue in favour of the Appellant and against the Respondent.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
On the first issue, Counsel submitted that all the testimonies of the witnesses called by the Respondent who was the Plaintiff before the lower Court run on a common thread. He referred to the evidence of PW1 at Pages 20-26 of the Records, that of PW2 at Pages 28 & 29 of the Record and that of PW3 at Pages 31-34 of the Records and submitted that the evidence of the witnesses in those Pages of the Record has established the Claim of the Respondents as it supports all the facts pleaded. He referred to AGBOOLA V. U.B.A. (2011) 11 NWLR (Part 1258) 383 and submitted that the evidence remained unchallenged during cross examination. That the Respondent tendered Exhibits A, B, B1, C, D, D1, E, E1, and were all admitted in evidence. He said Exhibit B & B1 is the sale agreement in respect of the first plot situated at Bafarawa Estate on 24/8/2012. Exhibit C & C1 is the receipt acknowledging the payment of the sum of N2,600,000.00 to the Appellant. Exhibit D & D1 is the sale agreement in respect of the second plot situated at old Airport Housing Estate on 25/7/2013. Exhibit E & E1 is the undertaking by the Appellant to pay back the Respondent the sum of N2,250,000.00 in respect of the plot in Exhibit B. According to Counsel, the exhibits proved the authenticity of the evidence of the Respondents witnesses on the sale of the two plots of land to the Respondent by the Appellant. That the Appellant admitted the transaction between him and the Respondent at Page 47 of the Record.
That DW2 gave evidence that he sold the plot at Bafarawa Estate to the Appellant via Exhibits F & F1 but during cross examination stated that the plot was found not to be genuine and was replaced with another and given to the Appellant. On the issue of contradictory evidence of the Respondent’s witnesses raised by the Appellant’s Counsel, Counsel submitted that the inconsistency in the evidence of PW1 and PW6 on whether the Appellant gave a letter of grant to the Respondent in respect of the second plot of land; and identity of DIG Labaran Wurno (Rtd) does not affect the main substance of the Respondent’s case.
According to counsel, on the issue raised by the Appellant’s Counsel that the Respondent failed to prove fraud beyond reasonable doubt, Counsel submitted that the trial Court did not make any finding on whether the Appellant defrauded the Respondent as reflected at Page 95 of the Record of Appeal.
Rather the trial Court held that there is a clear case of failure of consideration which even the Appellant admitted at Paragraph 4.18 of his brief of argument. According to Counsel, a party cannot raise issue on Appeal which the trial Court did not make a specific finding thereon. That there was no decision by the trial Court in respect of the issue of fraud as argued by the Appellant’s Counsel, this Court lack the jurisdiction to consider same on Appeal. He referred to ONYEAMAIZU V. OJIAKO (2010) 4 NWLR (1185) Page 504 at 526 Paragraph H-E. He further submitted that whether the Respondent did prove a case of fraud or not against the Appellant that does not preclude the trial Court from finding the Appellant liable for failure of consideration as the lower Court held that the Respondent is entitled to his Claims.
On issue two, Counsel submitted that the Appellant’s Counter Claim cannot be granted in light of Exhibits B, B1, C, D, D1, E and E1 that encapsulate the Respondent’s claim against the Appellant more so that the Appellant admitted the exhibits. That the Appellant after admitting selling the two plots to the Respondent, also admitted signing Exhibits B, D and E and that he gave Exhibit A to the Respondent.
Counsel referred to the evidence of the Appellant as DW1 at the lower Court at Page 47 of the Records and submitted that the admitted facts contained therein by the Appellant could be used against him. He cited AGBAHOMOVO V. EDUYEGBE (1999) 2 NWLR (Part 594) 170 at 183 Paragraphs C-F. That the Appellant tendered Exhibit F & F1 to bolster his contention that he was entitled to the declarations in his Counter Claim and called DW2 from whom the Appellant bought the plot as in Exhibit F & F1 as a witness. According to Counsel, while DW2 stated that the Appellant told him that the first plot was not genuine, DW1 stated that it was the Respondent that approached DW2 and told him that the land is not genuine as contained in Page 51 of the Record. Counsel submitted that DW3, one of the witnesses called by the Appellant at the trial had no knowledge of the transaction. That at Page 52 of the Record he admitted not witnessing the transaction between the Appellant and the Respondent. As such he does not know anything about the transaction contained in Exhibit F & F1 and the plots bought by the Respondent from the Appellant.
According to Counsel, the lower Court was therefore right when it held that Exhibit F & F1 cannot aid the case of the Appellant as his signature was not appended on it. That an unsigned document is a worthless document. He placed reliance in OMEGA BANK NIG.(NIG) PLC V. O.B.C. LIMITED (2005) AFWLR (Part 249) Page 1964 and submitted that for not executing Exhibit F & F1 the Appellant cannot reap any benefit from it. He submitted that the exhibit is not dated and none of the witnesses stated when exactly it was executed; he cited DONGARI & ORS V. SA?ANUN (2013) LPELR 22084 and urged this Court to dismiss the Appeal for lacking in merit and affirm the Judgment of the trial Court.
DETERMINATION OF THE APPEAL
The Claim of the Respondent before the lower Court as reflected at Page 9 of the Record reads thus:-
‘Whereof the plaintiff claims against the defendant the sum of N3,350.000 only being the balance of the sum N3,750,000 being price of the two plots of land fraudulently sold to the plaintiff by the defendant plus the cost of this action’.
It was the argument of the Appellant that even though the case as fought by the Respondent at the lower Court was that the two plots of land were fraudulently sold to the Respondent by the Appellant and the Respondent sought to prove the alleged fraud by pleading the particulars of fraud, it was submitted for the Appellant that rather than the Court concentrating on whether the Respondent had proved the allegation of fraud; the lower Court at Page 95 of the Record did not make any specific findings on the proof beyond reasonable doubt on the issue. The issue for determination is how is allegation of fraud proved?
In MBANUGO V. STATE (2017) LPELR-43581 CA it was held thus:- ‘Fraudulent act or conduct was defined in the case of NIMASA V. STEPHEN ODEY (2013) LPELR-21402 (CA) in the following way:-
‘It is a conduct involving bad faith, dishonesty, a lack of integrity, or moral turpitude; also termed dishonest act; fraudulent act’. It could also be an assertion that does not conform to facts. The Apex Court in yet another case defined fraud thus: ‘Turning now to the meaning of ‘fraud’ in connection with representation, it is firmly settled that whenever a man makes a false statement which he does not actually and honestly believe to be true, that statement is, for purposes of civil liability, as fraudulent as if he had stated that which he did not know to be true, or he knew or believed to be false’.
Fraud is said to be proved when it is shown that a false representation has been made by the person representing the facts in the following circumstances: –
1) Knowing, or
2) Without belief in its truth;
3) Recklessly, carelessly whether it is true or false. This is just an instance of the second above. See AFEGBAI V. A. G. EDO STATE (2001) 14 NWLR (Part 733) 425. At Page 32 of the Record of Appeal, the Respondent before the lower Court in his evidence in chief stated that: – ‘When I started the building on the 2nd plot the Ministry of lands and housing informed me that the plot sold to me does not belong to the defendantthat the plot belongs to D. I. G. Labaran Wurno. The defendant was directed to refund my money. He agreed to refund my money with all the expenses I incurred in building the fence.’
At Page 33 of the Records the lower Court admitted the undertaking by the Appellant to pay the Respondent the sum of N2,250,000 (Two Million Two Hundred and Fifty Thousand) dated 13/11/2013 as Exhibits E & E1. During cross examination as reflected at Page 47 of the Records, the Appellant admitted signing Exhibit E in respect of the 2nd plot. From the above evidence of Respondent and the admission by the Appellant before the lower Court, it is crystal clear that the Appellant sold the plots of land to the Respondent in respect of which he knows he had no valid title.
There is therefore false representation of facts by the Appellant to the Respondent in respect of the Appellant?s title to the second plot of land, which the Appellant knew he does not have good and valid title to. This falls squarely within the meaning of fraud as is established in the case of AFEGBAI V. A. G. EDO STATE (Supra). In other words, the evidence led before the lower Court shows that the Appellant fraudulently sold the plots of land to the Respondent knowing fully well that he does not have good and valid title to it.
Secondly there was failure of consideration in the contract of sale between the Appellant and the Respondent because the Respondent did not get the value for his money in respect of the sale of the plots of land to him by the Appellant. The lower Court at Page 95 of the Record held that: – ‘Whether there was fraud or not, since nothing was transferred to the Plaintiff in Exhibits B, A, D by the defendant in return for the Plaintiff’s money, the Plaintiff is entitled to recover his money from the defendant which is the sum of N3,350,000 (Three Million Three Hundred and Fifty Thousand Naira Only) and I so hold
It is the argument of the learned Appellant counsel at Paragraph 4.17 of the Appellant?s Brief of argument that even though the case as fought by the Respondent at the Court below was that the two plots of land were fraudulently sold to the Respondent by the Appellant and the Respondent sought to prove the alleged fraud by pleading the particulars of fraud, rather than the Court concentrating on whether the Respondent had proved the allegation of fraud as pleaded by the Respondent to enable him succeed on his claims; it never made any specific findings on the allegation.
For clarity purposes at Page 95 of the Records, the lower Court held: –
‘whether there is fraud or not, since nothing was transferred to the Plaintiff in Exhibits B, A, D by the Defendant in return for the Plaintiff’s money, the Plaintiff is entitled to recover his money from the Defendant which is the sum of N3,350,000 (Three Million Three Hundred and Fifty Thousand Naira Only). I so hold. The Plaintiff is also entitled to the cost of the action assessed at N20, 000. I so hold.’
It is trite that the cardinal duty of a trial Court is to make such findings as deemed appropriate upon facts led at trial. Where a trial Court failed to discharge that duty it could be said that there had been a miscarriage of justice. This is because where the trial Court failed to discharge this primary duty it becomes difficult for an Appellate Court to consider properly the merits of an Appeal. From the Record of Appeal the trial Court failed to make specific findings on the allegation of fraudulent sale of the plots of land by the Appellant to the Respondent despite credible evidence led and the admission by the Appellant as I stated earlier in this judgment. The duty of an Appellate Court in the circumstances is provided by Order 4 Rule 3 of the Court of Appeal Rules 2016. It provides: –
‘The Court shall have power to draw inferences of fact and to give any Judgment and make any order which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to costs.’
From the evidence led before the lower Court and Pursuant to Order 4 Rule 3 of the Court of Appeal Rules 2016, I hereby hold that the Appellant knowing fully well that he does not have good and valid title to the two plots of land, fraudulently sold same to the Respondent. This Appeal is unmeritorious. It is accordingly dismissed. I further affirm the Judgment of the High Court of Justice of Sokoto State delivered by Bello Duwale J., on 15/02/2016
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the judgment just delivered by my learned brother Abdullahi M. Bayero, JCA I agree with the reasons therein for the conclusion that the appeal is lacking in merit and same is hereby dismissed.
I subscribe to the orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother ABDULLAHI M. BAYERO, JCA just delivered and I am in agreement with his reasoning and conclusions in disallowing the Appeal. I am also in agreement that the Appeal is lacking in merit and therefore fails and it is accordingly dismissed for want of substance. I abide by the consequential orders made by Court.
Appearances:
Ibrahim AbdullahiFor Appellant(s)
A. Y. AbubakarFor Respondent(s)
