HUDU & ORS v. SAMINU & ORS
(2022)LCN/16806(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, October 07, 2022
CA/K/439/2014
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. ALHAJI MAGAJI HUDU 2. ALHAJI DANJUMMAI HUDU 3. ALHAJI AMINU SAMINU APPELANT(S)
And
1. SAADU SAMINU 2. DAHIRU SAMINU 3. NIMATULLAHI BASHIR 4. HAJIYA MARIAM I. MAI OMO RESPONDENT(S)
RATIO
THE CONDITION THAT MUST BE FULFILLED FOR APPELLANTS TO SUCCEED IN OVERTURNING THE JUDGMENT OF A LOWER COURT
For appellants to succeed in overturning the judgment of the lower Court on that argument, they must show that that mistake of the lower Court caused a miscarriage of justice in the case: see Amayo v. Erinmwingbovo (2006) 5 SCNJ 1; Kalu v. Odili (1992) LPELR-1635 (SC) p.38 & 62, Adejumo v. Ayantegbe (1989) LPELR-100 (SC) p.16; Zailani v. Gumau (2020) 2 NWLR (Pt. 1709) 452 AT 469-471 (SC); Onuoha v. The State (1988) 1 NSCC 411 AT 419; Eyisi v. State (2000) LPELR-1186 (SC) p.19. That is so because it is not every mistake of the Court that results in a verdict upturning its judgment on appeal. It necessarily has to be so because Courts are not manned by perfect God Almighty but by fallible human beings, so mistakes, some of them completely innocuous, are bound to occur from time to time. That being the case, it has become settled law that it is only mistakes that result in miscarriage of justice that the appellate Courts interfere to set aside It is the same point his Lordship I.T. Mohammad, J.S.C., (later C.J.N.) also made in Omoju v. F.R.N. (2008) ALL FWLR (PT. 415) 1656 AT 1671 (SC), (2008) LPELR-2647(SC) when he said at p. 28-19 of LPELR that:
“Let me add that a Judge is not a supernatural being. He is a human being and is not infallible. Where a Judge makes mistakes which, from the record of his proceedings, were not intentional or deliberate and which, more importantly, in this case, did not cause any miscarriage of justice to the other party, that omission must not be anchored on technicalities to defeat the cause of justice.” PER UGO, J.C.A.
WHETHER OR NOT DOCUMENTS CAN BE USED TO TEST ORAL TESTIMONY
It is settled that documents can be used as hanger to test oral testimony: Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238, Olaloye v. Balogun (1990) 5 NWLR (PT 148) 24 AT 38. The lower Court was conscious of that state of the law and so gave due attention to Exhibit MM1 to see how much it supported appellants’ case. In doing that, it arrived at the following adverse position regarding i appellants’ assertion:
“However, in trying to prove his claim, the plaintiff through PW3 – (sic: tendered) Exhibit MM1 to establish that he was authorized to sale (sic) not even the house in dispute but also another house at PRP Quarters Gama Kano. But nowhere the name of Pw3 could be found in both the Hausa and Certified True Translation of the Sale Agreement into English.” (Italics mine). PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Kano State of 6th November 2013 in Suit No: K/316/2010 dismissing the case of the appellants as claimants and granting the counterclaim of 4th Respondent against appellants. The tussle in the case was about who between the 1st and 2nd appellant on one hand and 4th respondent on the other was the proper purchaser from 1st to 3rd respondents and their co-heirs of Late Alhaji Saminu Yantandu of the latter’s house situate at Kwanar Jaba Quarters in Kano and covered by Certificate of Occupancy No: LKN/CON/RES/89/84. Appellants claimed the said property was improperly sold to 4th respondent by 1st to 3rd respondents in breach of an oral agreement 1st to 3rd respondents had with 1st and 2nd appellants through P.W.3 (Ward Representative of Jabar Ward) to sell same to 1st and 2nd appellants if 1st and 2nd appellants were able to complete within two weeks its ‘agreed’ full purchase price of N1.6m rather than the part-payment of N700,000.00 cash he initially presented to them through P.W.3. It is appellants’ case that the said two weeks agreed by parties was still running when 1st to 3rd respondents sold the said property to the 4th respondent so it was a wrongful sale; that 1st to 3rd respondents’ earlier ‘agreement’ to sell to 1st and 2nd appellant stands. They thus claimed in their action against Respondents:
1. A declaration that by virtue of the sale of the transaction of House No: LKN/CON/RES/89/84 to the 1st plaintiff and being the first in time, the subsequent sale and/or re-sell of the same house to 4th defendant by the 1st to 3rd defendants 7 days before the expiration of the 2 weeks period within which the 1st plaintiff was allowed to bring the purchase money in bulk was void ab initio and the house which is the subject matter of this suit belongs to the 1st plaintiff.
2. An order of Court restraining the 4th defendant from parading herself as the owner/buyer of House No: LKN/CON/RES/89/84, the 4th defendant transaction being the 2nd in time.
3. An order of Court directing the 4th defendant to return to 1st plaintiff the rents she had collected from the tenants living in the said house and to pay same over to the 1st plaintiff from the 15th day of February 2007, which was the day when the house was sold to the 1st plaintiff at the time of filing this suit.
4. An order directing defendants to pay jointly and severally the sum of N1,000,000.00 to the 1st plaintiff.
Fourth Respondent who 1st-3rd defendants/respondents in their joint statement of defence claimed was the only person they had dealings with regarding the disputed property on her part counterclaimed against appellants:
1. A declaration that she, 4th defendant/counterclaimant, is the legal owner of the house covered by House No: LKN/CON/RES/89/84 situate at Kwanar Jaba, Gwagwarwa Quarters, Nasarawa Local Government Area, Kano.
2. An order of perpetual injunction restraining the plaintiffs/appellants from claiming ownership of the said house.
3. Cost of filing the suit.
4. General damages of N1,000,000.00 against plaintiffs/appellant in favour of 4tn defendant/respondent.
After due trial of these conflicting claims, in which witnesses were called and some documents tendered by parties, the High Court of Kano State in its judgment of 22/11/2013 by Farouk Lawan Adamu, J., determined that appellants failed to prove their claim while 4th respondent proved hers. On that premise, it went on to dismiss the claim of the appellants and granted the declaration and injunction sought by the 4th respondent in her counterclaim.
Dissatisfied, appellants have lodged this twelve-Ground of Appeal to this Court.
In their Brief of Argument, appellants distilled the following five issues for determination:
1. Whether it was not established before the lower Court that 1st-3rd respondents had delegated/authorized Mustapha Mohd (P.W.3) to sell the two estates of late Alhaji Saminu Yantanda.
2. Whether the plaintiffs/respondents, particularly the 1st and 2nd plaintiffs, did not prove purchasing the house in dispute and/or did not prove a binding contractual agreement between themselves and 1st-3rd defendants/respondents.
3. Whether the 1st-3rd defendants/respondents had proved their case/averments of selling the house in dispute to the defendants/respondents during the lifetime of their father Alhaji Saminu Yantandu through a caretaker Malam Addulwahab.
4. Whether in the circumstances of this case the 4th defendant/respondent had proved her counterclaim to warrant the judgment of the lower Court in her favour.
5. Whether the lower Court had properly evaluated the facts and evidence placed before it in arriving at its judgment.
The defendants/respondents did not respond to the appeal so the appeal will be determined on the arguments of appellants alone.
Their said arguments, most of them intertwined and repeated, went as follows:
1. That though their pleading that 1st to 3rd respondents as the administrators of the estate of their late father delegated and authorized P.W.3 (Mustapha Mohammed) was denied by Respondents, they, appellants, through the evidence of P.W.3 and P.W.4 (3rd appellant) and exhibits MM1 and MM2 tendered through P.W.3 did prove that the administrators of the estate of Late Saminu Yantandu actually delegated and authorized P.W.3 (Mustapha Mohammed) – the Representative of the Ward Head where the subject matter is situate – to sell it so the lower Court was wrong in finding to the contrary (Issue 1).
2. That, as against the finding of the lower Court that 1st and 2nd appellants did not prove a binding contractual agreement between them and 1st to 3rd respondents as regards the same property, they, appellants, through: (1) the evidence of P.W.5 (1st plaintiff/appellant) and P.W.4 (3rd plaintiff/appellant), (2). the previous evidence of 2nd defendant/respondent Dahiru Saminu contained in Exhibit MM4 (the proceedings of a Rent Tribunal case in Suit No KA/409/2020 between 1st plaintiff/appellant Alhaji Magaji Hudu v. Austin & 14 Ors and, (3) Exhibit MM3 evidencing receipt of payment of N1.6m by 1st appellant to 1st to 3rd respondents, 1st and 2nd appellants issued to 1st and 2nd appellants by the Fagge Sharia Court (which proceeding was later nullified by the High Court of Kano State), did actually prove a binding contractual agreement between them and 1st to 3rd respondents in respect of the subject matter in issue. (Issue 2)
3. That contrary to the position of the lower Court, 4th respondent actually contradicted herself on the issue of when she bought the property in dispute – that is, whether she bought it during the lifetime of its owner Late Saminu Yantandu or after his death – so the lower Court was wrong in failing to reject her case. (Issue 3)
4. That 4th respondent led contradictory and inconsistent evidence on her counterclaim of proper purchase of the disputed property from the administrators of the estate of Alhaji Saminu Yantandu so the lower Court was wrong in granting her counterclaim.
5. That by reason of the same arguments of inconsistencies and contradictions in the case of 4th respondent regarding when she bought the property in dispute, the lower Court failed to properly evaluate the evidence placed before it by parties in arriving at its judgment dismissing appellants’ claim and granting 4th respondent’s counterclaim.
Furthermore, that the lower Court instead of relying on their (appellants’) extant amended statement of claim dated 19/3/2012 contained at p.401-409 of the records, wrongly cited and relied on their amended statement of claim dated 20/1/2012 which had been earlier withdrawn by them and struck out by the same Court on 11/4/2012 so its judgment is ‘a nullity’. (Issue 5)
In my humble opinion, these five issues and arguments of appellants can be conveniently compressed into a single issue thus:
Whether on the pleadings and the evidence adduced before the lower Court its judgment dismissing the claim of appellants and granting the counterclaim of 4 respondent was correct.
In finding answer to this issue, I deem it necessary to first dispose of their argument that because the lower Court instead of relying on their extant proposed amended statement of claim dated 19/3/2012 moved and granted by that Court on 11/4/2012, referenced and relied on their proposed amended statement of claim of 20/1/2012 which had been, already struck out by it on their application, its judgment was a nullity. I am not at all persuaded by that argument. For appellants to succeed in overturning the judgment of the lower Court on that argument, they must show that that mistake of the lower Court caused a miscarriage of justice in the case: see Amayo v. Erinmwingbovo (2006) 5 SCNJ 1; Kalu v. Odili (1992) LPELR-1635 (SC) p.38 & 62, Adejumo v. Ayantegbe (1989) LPELR-100 (SC) p.16; Zailani v. Gumau (2020) 2 NWLR (Pt. 1709) 452 AT 469-471 (SC); Onuoha v. The State (1988) 1 NSCC 411 AT 419; Eyisi v. State (2000) LPELR-1186 (SC) p.19. That is so because it is not every mistake of the Court that results in a verdict upturning its judgment on appeal. It necessarily has to be so because Courts are not manned by perfect God Almighty but by fallible human beings, so mistakes, some of them completely innocuous, are bound to occur from time to time. That being the case, it has become settled law that it is only mistakes that result in miscarriage of justice that the appellate Courts interfere to set aside It is the same point his Lordship I.T. Mohammad, J.S.C., (later C.J.N.) also made in Omoju v. F.R.N. (2008) ALL FWLR (PT. 415) 1656 AT 1671 (SC), (2008) LPELR-2647(SC) when he said at p. 28-19 of LPELR that:
“Let me add that a Judge is not a supernatural being. He is a human being and is not infallible. Where a Judge makes mistakes which, from the record of his proceedings, were not intentional or deliberate and which, more importantly, in this case, did not cause any miscarriage of justice to the other party, that omission must not be anchored on technicalities to defeat the cause of justice.”
The way to show miscarriage of justice in this case is by showing that appellants’ case in their said extant amended statement of claim of 19/3/2012 was different in substance from their claims as cited and summarized by the trial Judge in his judgment. Unfortunately, appellants did not even make any effort to show that. In fact, if anything, even a simple perusal of their extant proposed (Yes, just a mere ‘proposed’ process) amended statement of claim of dated 19/3/2012 contained at pages 401-409 of the records of appeal shows that it reflects word-for-word their six heads of claim as reproduced by the trial Judge in his judgment. The trial Judge also went further in the second and third pages of his judgment to not only point out that appellants filed a 21-paragraph statement of claim; he even summarized their case in that amended statement of claim. That summary again reflects the contents of appellants’ amended statement of claim dated 19/3/2012. I therefore fail to see any force in appellants’ complaint of nullity of the judgment of the lower Court on account only of that innocuous error of the trial Judge.
That takes me to the merits of their arguments on the merits of the case and evidence presented by parties. I shall compartmentalize them in the following order.
1. Whether appellants proved that 1st – 3rd respondents had delegated/authorized Mustapha Mohd (P.W.3) to sell the disputed property of Late Alhaji Saminu Yantandu situate at Kwanar Jabar Quarters of Kano.”
Though appellants tried to tie this issue of the authority alleged given to P.W.3, Mustapha Mohammed, by 1st to 3rd respondents to the other property of the same Late Alhaji Saminu Yantandu situate at PRP Quarters, the real issue between parties on their pleadings was whether the same Ward Head Mustapha Mohammed was also authorized by 1st-3rd respondents to dispose of the very disputed property situate at Kwanar Jaba Quarters On that issue, Appellants in paragraph 5 of their ‘Proposed’ amended statement of claim dated 19/3/2012 averred positively in paragraph 6 thus:
6. The sale of the house referred to in 5 above by the ‘WHR’ was after the administrators had parolly and mutually within themselves delegated the same ‘WHR’ to sell the same house and the subject matter of this suit…
First to 3rd respondents frontally denied that averment of delegating/authorizing ‘WHR’ Mustapha Mohammed, (P.W.3) to sell the house in dispute along with the one at PRP Quarters. They averred without equivocation that while they sold the PRP Quarters house through Mustapha Mohammed (P.W.3), he, Mustapha Mohammed was neither delegated nor authorized by them to sell the house in dispute. They said so in paragraph 6 of their statement of defence thus:
6. The 1st to 3rd defendants deny paragraph 6 of the plaintiffs’ statement of claim and aver that the 1st to 3rd defendants did not delegate Mustapha Mohammed to sell the house the subject matter as well as the other property situated at PRP Quarters Kano. The 1st to 3rd defendants sold the house at PRP Quarters through Mustapha Mohammed only. (Italics mine)
In their bid to discharge the burden on them to prove their positive assertion that 1st to 3rd defendants/respondents authorized and delegated ‘W.H.R.’ (Ward Head Representative) Mustapha Mohammed to dispose of the disputed property, appellants called Mustapha Mohammed himself as their third witness (P.W.3) and he in his evidence tendered a certain Exhibit MM1 to prove his purported authorization by 1st to 3rd respondents. It is settled that documents can be used as hanger to test oral testimony: Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238, Olaloye v. Balogun (1990) 5 NWLR (PT 148) 24 @ 38. The lower Court was conscious of that state of the law and so gave due attention to Exhibit MM1 to see how much it supported appellants’ case. In doing that, it arrived at the following adverse position regarding i appellants’ assertion:
“However, in trying to prove his claim, the plaintiff through PW3 – (sic: tendered) Exhibit MM1 to establish that he was authorized to sale (sic) not even the house in dispute but also another house at PRP Quarters Gama Kano. But nowhere the name of Pw3 could be found in both the Hausa and Certified True Translation of the Sale Agreement into English.” (Italics mine)
Appellants have not shown that Exhibit MM1 does not reflect what the trial Judge said above about it. Without doing that, their argument of authorization of PW3 by 1st to 3rd respondents is a non-starter.
2. Whether the plaintiffs/appellants, particularly the 1st and 2nd appellants, did not prove purchasing the house in dispute and/or did not prove a binding contractual agreement between themselves and 1st-3rd defendants/respondents.
The finding of the trial Judge on sub-issue 1 above now endorsed by this Court is parasitic on this issue, for in so far as appellants’ case of a binding contract for the sale of the disputed property is based on their unfounded assertion of 1st to 3rd respondents authorizing and delegating P.W.3 to enter into the said agreement, it must necessarily collapse as one cannot place something on nothing. When the foundation of a building collapses, the building itself must also collapse. So it is with this argument of appellants. In any case, the trial Judge did not even rest his entire decision on that alone finding but had the following to also say on it:
“In a contract for sale of property where part payment was made or paid, the law is that the contract for purchase has been concluded and is final leaving the payment of the balance of the outstanding to be paid.
“This is not the position in the instant case, the representative said “we have given you 2 weeks go and bring the complete purchase price.” The Ward Head (pw3) collected and kept the part payment brought by PW3 as evidence in Exhibit MM2. In my opinion, it would have been different thing if Exhibit MM2 read ‘I Alhaji Mustapha Mohd on the authorities of the representatives of the heirs of late Saminu Yantandu relieved (sic) this amount as part payment evidencing the purchase of the house and it was agreed by both parties that the balance will be paid within two weeks end.’
“Here the representatives did not collect the part payment.
“Learned Author Diane Chappelle in the book Land Law (2004) 6th Edition at page 48 had this to say on contract of Sale of land.” However, between the negotiations for purchase and the completed conveyance of the legal estate or interest, there is contract stage.
“…As with the general rule of contract, contracts for the sale or either disposition of land or any interest in land must contain all the essential elements, terms of the agreement, parties, properties, interest to be granted consideration (price), and any other specials terms.
“Until contracts are exchanged, that is each party holds the duly signed part of the offer, and the agreed deposit has passed binding contract, until exchange, the agreement is usually made subject to contract which means that, as yet, there is no contract and either party can withdraw from negotiation with impunity.
“I hold the same view with this author; and hereby adopt it as mine.
“For as held in the case of Odumade Vs Ogunnaike and Another (2010) 39 WRN page 129 at 138 it was held; sale under customary law is valid where there is sufficient evidence of payment of purchase price coupled with delivery of possession of the land to a purchaser in the presence of witnesses.
“Again under customary law, there is complete sale only if the purchase price was paid to the real owners of the land. It cannot be said to have the same effect if the purchase price was not paid to the real owners;
“I hold that against the background of the authorities cited above and the testimonies of the witnesses. I hold that the plaintiff did not prove any of the elements; as such there is no contract of sale of land to the plaintiff legally speaking.
“In other words, there is nothing to show or confirm in the absence of any credible evidence that assuming I agree with Exhibit MM 2 I hold that same is not a properly executed agreement of sale in customary law.”
A little further down, his Lordship reasoned further thus:
“The 1st, 2nd and 3rd defendants denied ever knowing or appointing PW3 (Alhaji Mustapha Mohd) to act as their representative, document evidence like Power of Attorney would have been produced. Even if PW3 was their representative, none of the 1st, 2nd and 3rd defendants or any of the heirs authorized him to collect and keep the part payment until when the balance is produced as could be seen from exhibit MM2.”
This reasoning/statement of the law by the trial Judge is faultless and so cannot be interfered with.
3. Whether the 1st–3rd defendants/respondents had proved their case/averments of selling the house in dispute to the defendants/respondents during the lifetime of their father Alhaji Saminu Yantandu through a caretaker Malam Addulwahab.
4. Whether in the circumstances of this case, the 4th defendant/respondent had proved her counterclaim to warrant the judgment of the lower Court in her favour.
5. Whether the lower Court had properly evaluated the facts and evidence placed before it in arriving at its judgment.
As light follows darkness so do the answers to these three questions flow from the negative answers appellants got on their issues 1 and 2. If 1st to 3rd respondents did not authorize or delegate P.W.3 to sell their property in issue and 1st and 2nd appellants did not also have a binding agreement with 1st to 3rd respondents regarding that property, it means the lower Court properly evaluated the facts and the evidence placed before it in arriving at its judgment and also right in dismissing appellants’ claim and granting 4th respondent’s counterclaim of having properly purchased the same property from 1st to 3rd respondents, the said sale being as a matter of fact also undisputed and further supported by Exhibit MH as also found by the trial in his judgment at the last paragraph of p. 671 of the records.
Beyond the above, all the other arguments of appellants as to whether respondents’ pleadings were contradictory or they were even inconsistent in presenting their case are immaterial and have no adverse effect on their case since the said contradictions and inconsistencies identified by appellants, for instance, that 1st to 3rd Respondents contradicted themselves when they also pleaded, in addition, that the disputed property was sold to 4th respondent in their father’s lifetime, did not affect the real props of the case as fought by parties, which is who as between 1st appellant and 4th respondent properly bought the property in dispute situate at Kwanar Jaba from the heirs of Late Saminu Yantandu as represented by 1st to 3rd respondents: see Egesimba v. Onuzurike (2002) LPELR-1043 p. 21-22 (SC); Nwokoro v. Onuma (1999) 9 SCNJ 63 AT 75-76 (SC); Makinde v. Lawal (2000) 74 LRCN 137 AT 155-156 (SC); State v. Salawu (2011) 18 NWLR (PT 1279) 883 AT 913, 916-918 (SC); Mamuda v. State (2019) 5 NWLR (PT 1664) 128 AT 141 (SC).
And coming to appellants’ reliance on the previous evidence of 2nd respondent, Dahiru Saminu, before the Rent Tribunal of Kano State, which proceeding was tendered by appellants as Exhibit MM4, the law is well settled that evidence given by a witness in a previous proceeding is neither relevant nor admissible except for purposes of cross-examination of the witness himself as to credit: see Bayol v. Ahemba (1999) LPELR-761 (SC) p.20 para C-F; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Alade v. Aborishade (1960) SCNLR 398. Dahiru Saminu never testified before the trial Court so his evidence before the Rent Tribunal of Kano State in Exhibit MM4 is of no relevance in this case. That is even as his said evidence in Exhibit MM4 is not materially different from respondents’ case before the lower Court.
The long and short of all the foregoing is that, there is no merit in this appeal and same is hereby dismissed while the judgment of the High Court of Kano State dismissing the claims of appellants and granting the counterclaim of 4th respondent is affirmed.
Respondents having not defended the appeal and so incurred no cost, no order is made as to costs.
NOTE:
This appeal having been argued on 22/6/2022, judgment ordinarily ought to have been given not later than 21st September 2022. Unfortunately, most of that period fell within the Annual Vacation of this Court which started from the 19th of July and only ended on 11th September 2022, during which period I also had to attend a Court-sponsored Symposium abroad in addition to my already very heavy workload of several other earlier reserved appeals awaiting judgment that I carried into and managed to deliver during the vacation, hence the little delay in delivery of this judgment.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the leading judgment just delivered by my learned brother, B. M. Ugo, JCA. I agree with his reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal and abide by the consequential orders in the lead judgment.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: My learned brother BOLOUKUROMO MOSES UGO, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Jafar Aminu, Esq. For Appellant(s)
Mustapha Ibrahim, Esq. for 4th Respondent. For Respondent(s)
