IBRAHIM YUSUF IBRAHIM & ORS v. PHILIP ODEH AGIRI
(2014)LCN/7240(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of May, 2014
CA/K/252/2012
RATIO
LAND LAW: WHO GETS TITLE WHEN THE OPPOSING CLAIMANTS IN A LAND CASE TRACE TITLE TO A COMMON VENDOR
The law is even trite, that where the opposing claimants in a land case trace their title to a common vendor, then the one who establishes better title would get judgment. It is even common sensical that, in such circumstance, the law and the court would lean in favour of the party to which the vendor admits do have sold the land. See Ogah vs. Gidado (2013) LPELR – 20298 (CA); Idowu & Ors vs. The Registered Trustees of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria (2012) LPELR 7863 (CA); Fasoro vs. Beyeku (1989) 2 NWLR (pt.76) 4 NWLR (pt.1184) 265. per ITA GEORGE MBABA, J.C.A
WHETHER AN APPELLATE COURT, IN DETERMINING ISSUES AT THE TRIAL COURT, IS TO BE CONFINED TO THE RECORDS OF APPEAL
By law, the appellate court is bound to dwell within confines of the Records of Appeal, in determining any question relating to what happened at the trial court. See the case of Garba vs. Omokhodion (2011) NWLR (Pt.1269) 145 at 180; Orok vs. Orok (2013) LPELR – 20377 (CA); Salihu vs. RTEAN & Ors. (2013) LPELR 21820 (CA), so also Ayangoke vs. Keystone Bank Ltd (2013) LPELR- 21806 (CA), where we held:
“By law, no party is permitted to raise any issue on appeal, outside the decision considered or contemplated in the Judgment appealed against… Moreover both the parties and the appellate court are bound by the Records of Appeal, duly compiled and transmitted from the Lower Court for the consideration of the appeal, when it comes to what transpired at the Lower Court.” per ITA GEORGE MBABA, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. IBRAHIM YUSUF IBRAHIM
2. YUSUF MOHAMMED
3. ALH. BELLO AHMAD TANKO Appellant(s)
AND
PHILIP ODEH AGIRI Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decisions (Rulings and judgment) of Kaduna state High court, in suit No.KDH/KAD/429/2004, delivered by Hon. Justice Munir Ladan on 11th October 2010, 3/2/2011, and 9/3/2011. The Ruling of 11/10/2010, had refused application for adjournment by Appellant and had closed the Appellants’ case (as defendant at the Court below). The judgment of 3/2/2011 granted the Respondent the relief sought in the suit and awarded N500,000.00 damages to the plaintiff against the Defendant (now Appellant), while the Ruling of 9/3/11 refused to set aside the judgment of 3/2/2011 and to stay the execution of the judgment.
Dissatisfied with the Rulings and judgment, the Appellants filed their Notice of Appeal, dated 11/3/2011, as per the last pages of the Records of Appeal and disclosed 8 grounds of appeal. They filed their brief of argument on 12/11/2012 and distilled 6 issues for determination, namely:
(1) “Whether the Appellant’s (sic) right to fair hearing has not been violated by closing the Appellant’s (sic) defence. (Ground 1)
(2) Whether the Respondent has proof (sic) title to the House in dispute in any of the five ways or any other way known to law to entitle him to judgment thereto. (Ground 2)
(3) Whether the Respondent is entitled to judgment when the consideration he gave for the house in dispute has been returned to him by depositing same into his account with the First Bank Plc. (Ground 3)
(4) whether the learnt trail (sic) Judge was right when he entered judgment in favour of the Respondent and granted the relives (sic) sought as per the endorsement on his writ of summons and statement of claim, when no single document was tendered by the Respondent in proof of the transaction of the sale and purchase of the property in dispute him and PW1. (Ground 4)
(5) Whether the Learnt trial judge was right in law when he relied on the evidence of PW1 which is contradictory in nature to enter judgment in favour of the Respondent. (Ground 5)
(6) Whether the Learnt trial judge was right when he refused to set aside his judgment and re-open the Appellants’ defence and allow the Appellants to complete their defence.” (Grounds 6)
The Respondent filed a Notice of preliminary objection on 13/3/14 against grounds 1 and 6 of the appeal and issues 1 and 6 thereof, saying that Appellants ought to have appealed against the interlocutory Ruling of the trial court, dated 11/10/2010, within the prescribed time, or sought leave to appeal against the same.
The Respondent also filed his brief of argument on 31/12/2012 (wherein he also raised the preliminary objection and argued it on pages 3 – 4 of the Respondents brief. The Respondent adopted the issues as formulated by the Appellants for the determination of the Appeal.
At the hearing of the Appeal on 18/03/2014, the parties adopted their briefs, starting from the Respondent, who argued the preliminary objection, and urged us to strike out the grounds of appeal and issues he objected to. Appellants did not file any Reply Brief to contest the preliminary objection.
As rightly argued by the Respondent on the pages 3 and 4 of the Respondent’s brief, Appellants did not appeal against the Ruling of the trial court, delivered on 11/10/2010 refusing Appellants’ application for adjournment and closing their defence, within the statutory period prescribed by law (being 14 days). They did not also seek the leave of the trail court, nor of this court and/or extension of time to appeal against the said ruling of 11/10/2010. They cannot therefore smuggle any ground of appeal against the said ruling of 11/10/2010 into the final appeal, filed on 11/3/2011 against the final judgment delivered on 3/2/2011, and the refusal to set it aside, delivered on 9/3/11. To appeal against that Ruling, Appellants need the leave of this court and extension of time to appeal.
By Section 14(1) of the court of Appeal Act 2004, where:
“…an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Court of Appeal, lie in the Court of Appeal …”
This provision has a constitutional backing in Sections 242(1) and 243(1) (b) of the 1999 Constitution, and is binding on Appellant seeking to appeal against interlocutory decision of the trial court, especially where the grounds of appeal thereof are not of law alone, See the case of Garba Vs. Ummuani (2013) 12 WRN 76, where this court held;
“Since the order made by the Lower Court evinces an interlocutory decision, the law compels the Appellants to seek and obtain the leave of the court before appealing against it … The law insists that where the leave of court is required before doing an act and it is not obtained, the act is rendered null and void. See Otu vs. ACB Int’l Bank Ltd (2008) 3 NWLR (Pt.1073) 179; BBN Ltd vs. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) 484; Agip Nig. Ltd. vs. Agip Petroleum Int’l (2010) NWLR (Pt.1187) 348; Nwaolisah vs. Nwabujoh (2011) 14 NWLR (Pt.1268) 600”
The preliminary objection is hereby upheld, in respect of ground 1 and issue 1 and the same are hereby struck out, for being incompetent.
Of course, those principles cannot apply to ground 6 and issue 6, which relate to the Ruling of 9/3/11, refusing to set aside the judgment of 3/2/11 or to stay its execution. The Respondent’s argument in the preliminary objection did not even cover his alleged objection to the said ground 6 and issue 6. The said objection is overruled and struck out.
Arguing issue 2 (two) of the appeal, Appellants’ Counsel A. A. Ashat Esq. (who settled the appeal) listed the five established ways of proving title to and, relying on the case of Agboola vs. UBA & 2 ors. (2011) vols. 2 – 3 M.J. SC (Pt.11) 150 at 171 and submitted that, to establish title over land under native and customary law, the Respondent was expected to prove three things, namely:
(a) Payment of money
(b) Payment in the presence of witnesses and
(c) Delivery of possession. He relied on the case of
Etajata vs. Ologbo (2007) ALL NWLR (Pt.386) 584 at 620. Counsel submitted that throughout the Respondents’ statement of claim, there was no where he claimed to have paid a nickel in presence of witnesses; that PW3 rather said (on page 130 of the Records):
“I was not around when PW2 the plaintiff paid Money to PW1 Hajia Hajo Mohammed.”
Counsel also submitted that throughout the gamut of his (Respondent) evidence, there was no place the Respondent claimed to be in possession of the house, and that was why the Respondent filed a motion on Notice (and Ex-parte), seeking order to restrain Appellants from entering the house; Counsel said that the DW1, on page 132 of the Records, had said that he took possessions of the house; completed it and then put a tenant; that when he bought it, it was not habitable; Counsel submitted that PW2 had also said under cross examination : “My brother i.e. The plaintiff himself is not in occupation of the house” Counsel added that 3rd Appellant’s possession remained unchallenged and uncontroverted, either by way of a Reply to the Appellants’ joint statement of defence, or discredited under cross examination.
They urged us to hold; that there was no evidence at all that Respondent was ever in possession of the land in dispute, thus he failed to prove title to the land. Appellants added that evidence showed that the land in dispute was covered by Certificate of occupancy No.080332 (as per pages 7 and 12 of the Records and evidence of PW2 on pages 2 and 127 of the Records), yet the same was not produced at the trial.
On issue 3 distilled from Ground 3, Appellants submitted that the Respondent had admitted that the consideration he (Respondent) paid for the landed property had been returned to him and referred us to the evidence of PW1 on page 122 of the Records. They also relied on the evidence of PW3 on the refund of the consideration and submitted that, having been refunded, the Respondent cannot eat his cake and have it.
On issue 4, Appellants submitted that no document was tendered to establish any transaction of the disputed property between the Respondent and PW1; that PW1 admitted, under cross examination, that nobody signed any document, except herself and the relation of the plaintiff, but unfortunately no document was tendered to establish any transaction. Counsel also submitted that PW1 admitted, under cross examination, that the plaintiff was at the place of his work during the transaction and so was represented by his wife and therefore did not sign any agreement. He relied on Section 4 of statute of fraud, to say that all transactions for sale of landed property must be in writing, citing the case of Dughun vs. Andzenge (2007) ALL NWLR (Pt.385) 499 at 525, where the guiding principles were given on what questions the court ought to ask and resolve on document of title to land produced by a claimant.
On issue 5, Appellants submitted that it was judicially unsafe to believe the evidence of PW1 and act on it, having been established that she lied before the court. Counsel referred us to page 121 of the Records, where the PW1 said:
“I know the plaintiff in the case. I know him. I know I sold my house to him. The house is situated at AB1 New Extension, Makera, Kaduna”
Counsel submitted that the house being referred to by PW1 was different from the house in dispute – being No.AF1 Makera Now Exlenawn, Kaduna; that the trial court was wrong to rely on the said evidence of PW1 to enter judgment for the Respondent.
On issue 6, Appellants submitted that the trial court was wrong to dismiss their motion filed on 7/3/2011 seeking to set aside the judgment order made on 3/2/11 on the ground that their motion of 31/1/11 was pending, which had sought to re-open their defence so that they could be heard, He said that the clerks had collected the motion (dated 31/1/11) but failed or refused to give date for it to be put in the judge’s file, and the court delivered the judgment, without hearing the motion (of 31/1/11).
Counsel submitted that it is wrong for a judge to deliver judgment, while a motion is still pending. He relied on the Supreme Court case of Ibafor vs. Barakuro (2007) ALL FWLR (Pt.371) 1669 at 1695; Batisan vs. Okunniga (2005) ALL FWLR (Pt.286) 809 at 819 – 820; S.B.M. Services Nig. Ltd vs. Okon (2004) AFWLR (Pt.230) 1115 at 1132.
Appellants did not distill any issue from grounds, 7 and 8, when they listed issues for determination on pages 2 and 3 of the brief, but they advanced arguments on the said grounds 7 and 8 on pages 16 and 17 of their Brief (under what looks like emergency issues). I think this is a strange and wrong and should not be allowed. However, because the Respondent had not reacted against such wrong approach to distilling issues, I shall consider the same, but with the above rebuke! Appellants’ belated Issue 7 (distilled from ground 7) is:
“Whether the evidence of DW1 which was not controverted has not dislodged the Respondent’s case.”
Counsel submitted that DW1’s evidence was not controverted under Cross examination and consequently is enough to dislodge the Respondent’s case.
Issue 8, was “whether the damages of N5000,000.00 (sic) awarded by the Learnt trial Judge is reasonable in the circumstances of the case.”
Counsel said that this ground can only be applicable, if the judgment of the Lower Court is upheld (which he prayed against) and submitted that the position of the law in awarding damages is as stated in the case of Union Bank vs. Ajabule (2011) vol.12 SCNJ 331 at 365:
“General damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what in the opinion of reasonable person is considered adequate loss or inconvenience which flows naturally as generally presumed by law, from the act or conduct of the defendant.”
He submitted that the award (N500,000,00) was punitive and not reasonable in the circumstances, especially when the Respondents’ money had been deposited in the account of the Respondent and he did not deny the use of same even before the case went to the court below, coupled with the fact that the value of the house, the subject matter of the case’ was just N230,000.00. He added that the basis for granting general damages in an action for trespass is rooted in being in exclusive possession of the land; that in this case it was not established that the Respondent was in possession of the property.
He relied on the case of Dantsolio vs. Mohammed vol.6 MJSC 97 at 114.
He urged us to resolve the issues in favour of the Appellants and allow the Appeal.
In his response, the Respondents’ Counsel, Adekoya R. T. Esq. (who settled the brief), on issue two, submitted that the Respondent had proved his title to the property by one of the five ways of proving title to land, that is, by production of documents of title, having asserted that he bought the property from the PW1, which fact was corroborated by the PW1 and PW3, and the original certificated of occupancy and the sale agreement, given to him by the PW1, being in custody of 1st Appellant, who had been put on notice to produce them at the trial and he failed to do so. He referred us to page 126 of the Records of Appeal.
Counsel submitted that the evidence of PW2 and PW3, that the documents of the property were handed over to the 1st Appellant was not denied, contradicted or controverted, and there was no dispute as to the title of PW1, who testified that she, indeed, sold her property to the Respondent and not to the 3rd Appellant or to anybody else.
Counsel said that the existence of the documents of title was not in doubt, but the same could not be tendered, being in custody of the opposing party (Appellants). He urged us to invoke Section 167 (d) of Evidence Act 2011 on the existence of the documents of title, saying that failure of the Appellants to produce them at the trial (despite the notice on them to do so) should be presumed against the Appellants, especially as the Appellants had conceded to the fact that a sale agreement was made between the Respondent and PW1 which (agreement) was in the custody of the 1st Appellant. Counsel relied on Section 89 (a) (1) and 91 (b) (c) and (d) of the Evidence Act 2011, to say that having put the Appellant on notice to produce the said title documents to the property and they failed to produce the same, oral evidence of the contents and of the documents were admissible to prove the claim of the Respondent.
Counsel submitted that the case of Elajata vs. Ologbo (supra) relied upon by the Appellants, relating to prove of customary law sale of land was inapplicable in this case, as the ownership of the Respondent (of the land) in this case is based on document of title.
On the Issue of possession, the Respondent submitted that what is in issue in the case is title to the property. (No.AF1 MAKERA, New Extension, Kaduna) not possession; that it is trite law that possession does not and cannot translate to title; that the trial court was right when it held for the Respondent.
On Issue 3, Counsel for the Respondent submitted that the Respondent was entitled to judgment in the circumstances of this case; that the transaction over the property was directly between PW1 and the Respondent and PW1 did not appoint or authorize anybody (including 1st and 2nd Appellants) to Act as her (PW1’s) agents over the property; that the purported acts of 1st and 2nd Appellants, in returning any money to the Respondent (by depositing the same in Respondents’ account) or purporting to sell the property to the 3rd Appellant, did not invalidate or vitiate the sale and transfer of title over the property to the Respondent by the PW1; that even if there was any such depositing of money into the account of Respondent by the 1st and 2nd Appellants, that did not amount to a refund of consideration to the Respondent, as there was no authority for them to do so by the pw1. He relied on the case of Vulcan Gas Ltd vs. G.F.I. G (2001) FWLR (Pt.53) 1 at 53, on when agency relationship can be said to exist:
“the simplest way in which agency arises both between principal and agent as regards third parties is by an express agreement, whether written or oral by principal.”
Counsel submitted that the only person who could have returned the consideration or rescinded the sale of the property was PW1 or her appointed agent with power and authority to do so.
On Issue 4, the Respondent answered in the affirmative and adopted his argument under Issue 2, calling for the invocation of Sections 167 (d) 89(a) (1) and 91 (b) (c) and (d) against the Appellants.
On Issue 5, Counsel submitted that the evidence of PW1, that she sold the property to Respondent, was not contradictory; rather it was corroborated by PW2 and PW3. Counsel also submitted that PW1’s evidence that she did not appoint any agent to act for her was not contradicted. He referred us to page 122 of the Records and asserted that there was no material inconsistency or contradiction in the evidence of PW1. He relied on the case of Stephen vs. State (2009) ALL FWLR (Pt.491) 962 at 976.
Counsel added that the trial court did not found its decision on the evidence of PW1 alone, but on the totality of the evidence before it.
On Issue 6, Counsel submitted that the trial court, having delivered the judgment in the case became functus officio and could not interfere or sit on appeal to review its judgment. Counsel referred us to the case of Mbakwe vs. R.M.S. African (2001) FWLR (Pt. ) 1343 at 1355; Tomtec Nig. Ltd vs. FHA (2010) ALL FWLR (Pt.509) 400 at 420 – 421, and submitted that for Appellants to succeed to move the court to set aside its judgment and re-open their defence, they had to establish any of the circumstances listed in the above cases, that the application was meant:
(a) To correct clerical error or mistake
(b) To set aside a default judgment obtained in the absence of one party or in default of pleading
(c) To set aside a judgment obtained by fraud
(d) Where there is a fundamental irregularity
(e) Judgment was given in the absence of jurisdiction
(f) It is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.
On Issue 7, whether the evidence of DW1 had dislodged the Respondent’s case, Counsel referred us to DW1’s evidence on page 131 to 134 of the Records and said that the evidence of DW1 was subsumed in hearsay and uncorroborated testimonies, which cannot be relied upon; that the trial court was right when it held that the evidence of PW1 had controverted that of DW1 in so many ways and so the evidence of DW1 did not dislodge that of the PW1.
On Issue 8, the Respondents’ Counsel submitted that award of general damages is absolutely at the discretion of the trial court and Appellate Court would not ordinarily interfere, unless it is expedient to do so. Okwejiminor vs. Gbakeji (2008) ALL FWLR (Pt.409) 405 at 428.
He submitted that general damages are presumed to flow from the wrong complained of, and they are presumed by the law to be the consequence of the defendants’ act and the measure or quantum is for the judge to decide. He relied on the case of Mobil Producing Nig. Ltd. vs. Udo (2009) ALL FWLR (Pt.482) 1177 at 1213.
He urged us to resolve the issues against the Appellants and dismiss the appeal.
RESOLUTION OF ISSUES
A simple fact of this case at the Lower Court reveals that the Respondent, in October 2003, purchased landed property, No.AF1, Makera New Extension, Kaduna, from one Hajia Hajo Mohammed (PW1) for the sum of N230,000.00. A Sales Agreement was prepared and signed by both parties and their witnesses and the Original Certificate of Occupancy of the land was handed over to the Respondent by the PW1, to enable the Respondent perfect his title to the property. After the sale, the 2nd Appellant who led Respondent to buy it, advised the Respondent that it would be “safer” for the District Head of the area, where the land was situate, to endorse the sale transaction, and so caused the Respondent to submit the sales Agreement and the Certificate of Occupancy to the District Head (1st Appellant) for endorsement of the sale transaction. The 1st Appellant had requested the Respondent (who went with his brother) to leave the documents with him for the attestation and come back the following day for them. When the Respondent went back for the documents, 1st Appellant refused to release them, on the ground that the PW1 had sold the property without his (1st Appellant’s) knowledge, and that for such a ridiculous low price! The Respondent’s explanation that his long cordial relationship with the PW1 was responsible for the low price did not appeal to the 1st Appellant.
The 1st and 2nd Appellants thereafter arranged and sold the same property to the 3rd Appellant, purporting to do so with the authority of the PW1 and paid back some money into Respondent’s account as refunds of consideration for the property. Of course, the PW1 denied selling the landed property to 3rd Appellant or to any other person, or authorizing anybody else to do so, and testified that she sold the property to the Respondent and gave him the title documents to go and change the name.
I think the real issues for consideration in this appeal are:
(1) whether the trial judge was right in entering judgment for the Respondent as the person whom the PW1 sold her landed property to, in view of the purported refund of the consideration by the 1st and 2nd Appellants.
(2) whether the trial court was right when it refused to set aside its judgment and re-open the Appellants’ defence and
(3) whether the damages awarded was unreasonable, in the circumstances of this case.
ISSUE 1.
It is not in dispute that the PW1 (Hajia Hajo Mohammed) sold her landed property (No.AF 1 Makera, New Extension, Kaduna) to the Respondent for a consideration of N230,000, and Agreement documenting the sale was signed by the parties, in the presence of witnesses, including PW3 (brother of the Respondent). In her evidence on 13/6/2006, the PW1 told the court below:
“On 30th October, 2003 I sold my house to the Plaintiff… The house was sold at N230,000.00. The Plaintiff paid me the money. I gave the plaintiff the documents to go and change the name. I did not sell the house to the td defendant as alleged. I only sold my house to the plaintiff, The 2nd Defendant is not my agent and I did not ask him to sell the house to the td Defendant or anybody…”
See pages 121 -122 of the Records.
That evidence was affirmed by the Respondent (who testified as PW2) on pages 126 – 127 of the Records, and by PW3, on pages 128 and 129 of the Records.
There is no dispute as to the fact that the house in question belonged to the PW1. Even the Appellants acknowledged the title of the PW1 over the property and the 3rd Appellant, who purportedly bought the land, traced his title to the PW1, when he said on page 132 of the Records.
“I know house No.AF1 Galadimawa (sic) New Extension, Makera, Kaduna. It is my house, which I bought from Hajia Hajo…”
The 3rd Appellant then gave account of how he allegedly bought the land from the PW1, thus:
“sometime in 2003, the 2nd defendant came to me and told me that house No.AF1, Galadima New Extension, Makera, Kaduna was in the market for sale and that the Plaintiff has earlier on deposited some money in respect of the house. And that he was no longer interested, because there was a boundary dispute with a neighbor to the house… I went with him and met Usman Shehu Soba. I told him I was interested in buying the house. I wanted to discuss with him and settle in respect of the boundary. we agreed that I should pay him N80,000.00 as well as the sum of N230,000.00 to Hajia Hajo, through the 2nd Defendant the estate agent, afterwards, the said sum of N230,000.00 was returned to the Plaintiff. It was at Makera District Office. The Plaintiff gave the said sum to his brother one Henry Idoko and instructed him to go and pay the said amount into his account with First Bank Kaduna South Branch… At the District Head office, an agreement was signed stating that the amount was paid by the plaintiff. It was signed by his brother, the representative. The Plaintiff had already left. At the District head palace an agreement was written between myself and Hajia Hajo stating that she had sold the property to me. The agreement was signed in the presence of witnesses. I now took possession of the house… The original title document was handed over to me at the district head palace…” (page 132 of the Records)
Of course, the Respondent had earlier told the trial court how and why he handed the original title documents of the land to 1st Appellant and how the same came to be in the custody of the District Head (1st Appellant). He said:
“In October, 2003, I made payment in respect of AF1 New Extension, Makera, Kaduna. In favour of Hajia Hajo Mohammed. Hajia Hajo Mohammed is the owner of the property I heard from the 2nd Defendant that Hajo Mohammed intended to sell her property I went to her. I enquired if anybody had indicated his interest and she said no… she agreed to sell the property to me at N230,000.00. We requested the 2nd defendant to write an agreement, after the 2nd Defendant wrote an agreement, Hajo signed and I signed. I paid the sum of N230,000.00 through her Bank UBA. I gave N10,000 to the 2nd defendant after making the payment. I was given the certificate of occupancy and the sale agreement. Later on, the 2nd defendant said we should present the sale agreement to the 1st defendant for his own endorsement. We presented the sale agreement and certificate of occupancy in (sic) the 1st defendant. The 1st defendant asked us to come back for his signature. When we came back to the 1st defendant the following day, the 1st defendant told us that the document we presented – sale agreement has 2 (two cases, one has problem with Alhaji Soba and the other one is that Hajia Hajo Mohammed is no longer interested in selling the house. I went to Hajia Hajo Mohammed and she denied all the allegations… she advise that I should go back and collect my documents. I went back to the 1st defendant who told me he has already sold the place to the 3rd defendant. All my effort to collect my documents from the 1st defendant failed. The 1st defendant lodged the money i.e. N270,000.00 into my account. The 2nd defendant is not my own agent.” (See pages 126 – 127 of the Records).
It is obvious, from the above, that the 1st and 2nd Appellants were playing some dangerous games, bordering on fraud, on the 3rd Appellant, to extort him, and to defraud the Respondent, seizing the title documents of the land sold to the Respondent from him, unlawfully and purporting to sell the same to the 3rd Appellant, after extorting money from him in the name of settling boundary problem! In all this, the 2nd Appellant served as the anchorman of the fraud. He tricked the Respondent to present the title documents to the 1st Appellant, who also used his office, fraudulently, to deny the Respondent access to the title documents, thereafter; they went further to sell Respondent’s land to a 3rd party, purporting to do so with the authority of the PW1.
I think, these are serious acts of misconduct and fraud by the 1st and 2nd Appellants, for which they should be investigated and prosecuted. It is rather disturbing to see that the 1st and 2nd Appellants still had the effrontery to approach this court, seeking us to lend support to or give a stamp of approval to their illicit and criminal acts, seeking to use the non-production of the title documents by the Respondent the trial, as grounds that Respondent did not prove his title to the landed property!
That would amount to allowing the Appellants to profit from their fraudulent acts of using tricks to collect and retain the title documents from the owner.
They had been given notice to produce the documents at the trial and they failed to do so. Of course, Section 167 (d) of the Evidence Act 2011, is presumed, in the circumstances, against the Appellants, that they failed to produce the documents knowing that, if they did, the same would work against them. There is no doubt that the title documents of the landed property were duly executed in favour of the Respondent, but seized by the Appellants. Appellants are, hereby, ordered to release the said title deeds – certificate of occupancy No.080332, and the sale Agreement, signed between the Respondent and the PW1 and their witnesses to the Respondent, forthwith.
It is obvious that the Respondent had proved his title to the land by means of establishment of documents of title (Agreement of Sale and Certificate of Occupancy) which existence were confirmed by Appellants and clearly presented in evidence before the trial court.
The law is even trite, that where the opposing claimants in a land case trace their title to a common vendor, then the one who establishes better title would get judgment. It is even common sensical that, in such circumstance, the law and the court would lean in favour of the party to which the vendor admits do have sold the land. See Ogah vs. Gidado (2013) LPELR – 20298 (CA); Idowu & Ors vs. The Registered Trustees of Ona Iwa Mimo Cherubim and Seraphim Church of Nigeria (2012) LPELR 7863 (CA); Fasoro vs. Beyeku (1989) 2 NWLR (pt.76) 4 NWLR (pt.1184) 265.
In the case of SUU vs. Jobak Nig Ltd (2012) 49 WRN 53, this court held:
“The Appellant was able to trace his root of title to the original owner… He even called the PW1 who confirmed the root of his (Appellant’s) title by way of sale which evidence was neither discredited nor challenged and the lower court was bound to act on that evidence to give judgment for the Appellant.”
Appellants in this case have tried to capitalize on the fact that the Respondent was not in possession of the property, but the 3rd Appellant was. That may be so, but how did the, 3rd Appellant come into possession? He was misled by the 1st and 2nd Appellants’ dishonest acts into possession of someone else’s land, and the vendor, from whom he allegedly got the land, denied him and was never in the picture when he (3rd Appellant) was purportedly let into the property. In the case of Gwantu v. Yaki & ors. (2013) LPELR 21416 (CA), this court held:
“…the right of possession of an Appellant and his right/power to sue for trespass exists as long as the true owner or one with better title fails to emerge. Put differently, the right and power of one in possession… fails to exist against the owner of a property, or one who can prove better title to the property”.
Also in the recent case of Goshi Abdurahaman vs. Jummai Abdulhamid CA/K/245/2012, delivered on 4/4/14, where the Respondent had forcefully taken possession of the land from the Appellant, and sought to use that fact of her possession to deny the adjudged owner her right of title. In that case/ like the one at hand, the vendor who sold the land, had testified that he sold the land to Appellant not to the Respondent. Of course the appeal was allowed as the title of the Appellant could not be disturbed by alleged possession by the Respondent.
I therefore resolve this issue against the Appellants.
On the Issue that the trial court erred by refusing to set aside its judgment delivered on 3/2/11, on the ground that Appellants had filed application seeking to set aside an earlier order which closed the defence’s case.
I think this issue is an attempt to revive the first ground of appeal and the 1st issue raised by the Appellants which we have struck out on the ground that Appellants never appealed against the ruling of the court made on 11/10/2010, closing the case of the Appellants, within the time allowed and they never sought leave to appeal and that issue could not be smuggled into this appeal. It is therefore not expedient to waste judicial time on what now appears to be an academic issue.
Be that as it may, Appellants made a strong point, when they argued that the trial court is precluded from entering final judgment in a suit when there is a pending motion before the court. They claimed to have filed a motion on 31/1/2011, seeking an order to re-open their defence which was closed on 11/10/10. They complained that the clerks of court collected the motion but refused to give a date for it and or to put the said motion in the judge’s file (See page 14 of Appellants’ brief).
I am afraid that argument is self defeating, as Appellants have by so saying, admitted that the alleged motion was not before the court. It was only in the realms of their imagination, as they never called the attention of the court to any such motion, prior to or at the delivery of the judgment on 3/2/11. And, to show that there was no such motion, the Records of Appeal is completely silent on the alleged motion, as it is never listed or mentioned. (See the table of contents (index) carrying the documents and proceeding in the case KAD/429/2004 on 2nd cover of the Records of Appeal). That means the alleged motion never existed in the case.
By law, the appellate court is bound to dwell within confines of the Records of Appeal, in determining any question relating to what happened at the trial court. See the case of Garba vs. Omokhodion (2011) NWLR (Pt.1269) 145 at 180; Orok vs. Orok (2013) LPELR – 20377 (CA); Salihu vs. RTEAN & Ors. (2013) LPELR 21820 (CA), so also Ayangoke vs. Keystone Bank Ltd (2013) LPELR- 21806 (CA), where we held:
“By law, no party is permitted to raise any issue on appeal, outside the decision considered or contemplated in the Judgment appealed against… Moreover both the parties and the appellate court are bound by the Records of Appeal, duly compiled and transmitted from the Lower Court for the consideration of the appeal, when it comes to what transpired at the Lower Court.”
That issue and the ground of appeal which originated it are therefore incompetent and, accordingly, struck out.
Appellants had complained against the N500,000.00 awarded as general damages to the Respondent against them, saying the same was unreasonable, in the circumstances. Appellants did not however, say what made the award unreasonable, apart from simply saying:
“…the award of N5,000,000.00 (sic) is punitive and not reasonable in the circumstances of this case, especially when the Respondents’ money has been deposited in his account coupled with the fact that the value of the house was just N230,000.00.”
Appellants actually acknowledged and rightly so, that general damages are always made as a claim at large and the quantum need not be pleaded and proved, as the quantum is left to the discretion of the judge, who has to decide what he considers adequate loss or compensation to assuage the Plaintiff. See Incar Motors vs. Benson (1975) 3 S.C. 171; Harback Ind. Ltd vs. Usang (2003) NWLR (139) 1563.
Having not canvassed what makes the award unreasonable, save extrinsic reasons of the alleged refunds of Respondents’ deposit and the cost of the property, the subject matter of the suit, being low, this court lacks basis to review the award made by the trial court. This is because issue of what amounts to award as general damages, remains within the exclusive discretion of the trial judge and the appellate court cannot interfere with it, except it is proved that the discretion was not properly exercised. See the case of STB. Ltd vs. Anumnu (2008) ALL FWLR (Pt.399) 409 at 430; Uwa Printers Nig Ltd vs. Investment Trust Co. Ltd (1988) NWLR (PT.92) 180; Ayangoke vs. Keystone Bank Ltd (2013) LPELR 21806 (CA).
Appellants may have been wrongly guided by their error that the general damage was N5,000.00 to raise their complaint. But the truth is that the award was Five hundred thousand naira (N500,000) not N5 million (N5,000,000) as stated by Appellants. This court cannot therefore interfere with that award.
On the whole, I hold that this appeal is completely devoid of merit. I resolve all the issues against the Appellants. The appeal is dismissed.
Appellants shall pay the cost of this appeal, assessed at N50,000.00 only.
ABDU ABOKI, J.C.A.: The lead judgment of my learned brother ITA G. MBABA, JCA, which has just been delivered, was given to me earlier before now. I agree with the reasoning and conclusions reached that the appeal is devoid of merit and should be dismissed. I too accordingly dismiss it and abide by the consequential orders as to costs in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.
Appearances
A. A. Ashat Esq.For Appellant
AND
Adekoya R. T. Esq, with him E. O. Emmanuel Esq.For Respondent
