IDRIS GARBA V. BABANGIDA LAWAL (2013)

IDRIS GARBA V. BABANGIDA LAWAL

(2013)LCN/6003(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of March, 2013

CA/K/156/2009

RATIO

APPEAL: THE EFFECT OF AN APPELLANT NOT APPEALING AGAINST A CERTAIN FINDING OF THE LOWER COURT

In Zekeri v. Alhassan (2002)(1) NWLR (Pt. 786) 52 the court held that:
“where an appellant did not appeal against a finding of a lower Court, the finding is deemed to be valid and subsisting and the appellate Court will not disturb it”.PER ABDU ABOKI J.C.A.

CONTRACT: THE LAW PROTECTS THE SANCTITY OF AGREEMENTS VALIDLY ENTERED INTO BY PARTIES

The law protects the sanctity of agreement validly entered into by parties. Section 132(1) of the Evidence Act provides that when any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, content of such document(s) may not be contradicted, altered, added to or varied by oral evidence.PER ABDU ABOKI J.C.A.

CONTRACT: WHETHER EXTRINSIC EVIDENCE CAN AFFECT THE CONTENT OF A CONTRACT

In B.O.N Ltd v. Akintoye (1999) 12 NWLR (Pt. 631) 392, the Court held that:
“The general rule is that where parties have embodied the terms of their agreement or contract in a written document, extrinsic evidence is not admissible to add to, vary subtract from or contradict the terms of the written instrument”PER ABDU ABOKI J.C.A.

CONTRACT: A MAN WHO IS BEYOND LEGAL INFANCY WILL NOT BE ALLOWED TO ESCAPE THE LEGAL EFFECT OF A DOCUMENT WHICH HE HAS SIGNED

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

IDRIS GARBA Appellant(s)

AND

BABANGIDA LAWAL Respondent(s)

ABDU ABOKI J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Katsina State delivered by Sanusi Tukur J on the 7th day of November 2008.
The facts that gave rise to this appeal are that the respondent procured a property situate at Dorawa Street, Sabon Unguwar Katsina State from the appellant pursuant to a sale agreement dated 28/9/2003, and the appellant donated a power of attorney in favour of the respondent over the said property.
Notwithstanding the subsistence of the said sale agreement, the appellant who was still occupying the property in (sic) pleaded with the respondent to allow him to stay in the said property for a period of 3 months.
As the 3 months was fast approaching, the appellant filed an action before the High Court of Justice, Katsina State in Suit No. KT/25/2003 seeking to invalidate the sale agreement he had entered with the appellant. The said suit was eventually struck out by the learned trial judge.
The appellant then filed another suit No. KT/17M/2004 before the High Court of Justice, Katsina State seeking for an order for the enforcement of his fundamental right on the ground that the purported sale agreement that was entered with the respondent had infringed upon his fundamental right. The said suit was equally dismissed.
The respondent in his bid to compel the appellant to deliver possession over the property to him filed an action before the High Court of Justice, Katsina State.
At the conclusion of the matter, the learned trial judge entered judgment in favour of the respondent. In delivery the judgment the learned trial judge said inter alia:-
“I therefore have no option but enter judgment for the plaintiff as per paragraph 10(a) of his statement of claim and further order the defendant to vacate the premises in dispute and deliver up possession of same to the plaintiff within 1 (one) week from date of JUDGMENT or be ejected out by police.
As to paragraph 10(b) of the claim, I make no Order since Evidence has not be led”.
The appellant aggrieved by the said decision appealed to this Court via a notice of appeal dated 11/11/2008 and filed on 18/5/2009 containing 5 grounds of appeal.
The appellant filed 5 additional grounds of appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of the appeal the parties duly adopted and relied on their respective briefs of argument and reply.
The appellant’s amended brief of argument dated and filed on 26/11/2011 was settled by I.B. Odigie.
The respondent’s brief of argument dated and filed on 18/04/20I2 was settled by I. A. Auditz.
The appellant’s reply brief of argument dated 23/10/2011 and filed on 23/10/2012 was settled by I. B Odigie.
In the appellant’s brief of argument, the following issues for determination were raised:-
“1. Whether the alleged transaction between the appellant and the respondent is not vitiated by fraud, illegality, duress, misrepresentation, want of consideration, want of good faith, or whether there was in fact a valid contract between the appellant and the respondent capable of being enforced by an action before the trial court (Ground 2, 5 & 9).
2. Whether the failure of the trial Court to consider and give proper consideration to the defence of illegality, duress and misrepresentation put forward by appellant does not amount to denial of fair hearing (Ground 7).
3. Whether all the issues raised by the appellant in his defence were criminal in nature requiring prove beyond reasonable doubt. (Ground 8).
4. Whether the trial Court was right to have rejected the evidence of the Dw1, Dw2, Dw3, Dw4 & Dw5 and without giving probative value to them on the basis of being illusory and/or hearsay in the circumstances of this case. (Ground 10).
5. Whether the respondent in fact proved his case as found by the trial court in the circumstance of this case to be entitled to judgment (Ground 1 & 5).
6. Whether the order of the trial Court directing the appellant to vacate the premises in dispute within one (1) week or be ejected by the Police was right in the light of the constitutionally guaranteed right to appeal and the provision of Sheriffs and Civil Process Law and Judgment Enforcement Rules (Grounds 3 & 4)”.
On the other hand, the respondent in his brief of argument formulated 2 issues for determination to wit:-
“1. Whether the sale transaction was actually executed by parties as in exhibit 1, 2, 3 & 4.
2. Whether the appellant has proved the allegations of fraud, Duress, Illegality and misrepresentation in the execution of exhibit 1, 2, 3 & 4 sufficient to warrant the Court to invoke the proviso to Section 132 of the Evidence Act”.
Except for the mode of couching, all the parties to this appeal raised similar issues for determination in their respective briefs of argument. I find issue 5 formulated by the appellant as all embracing and capable of accommodating all the issue distilled by the parties.
I therefore adopt same for determination of this appeal. The said issue 5 reads thus:
“Whether the respondent in fact proved his case as found by the trial court in the circumstance of this case to be entitled to judgment”
Learned counsel to the appellant in his brief of argument, submitted that the lower Court erred in law when it upheld the respondent’s claim in view of the fact that the purported sale agreement was embedded with vitiating elements of a valid contract.
He contended that the sale agreement was marred by fraud, duress, illegality and want of consideration.
Learned counsel referred the Court to paragraphs 6, 7, 10, 11, 17 & 17(A) of the further amended Statement of Defence.
Learned counsel to the appellant maintained that the lower Court was in error when it failed to attach any probative value to the respective testimonies of the appellant’s witnesses.
Learned counsel referred the Court to page 153 line 25-26, page 127 lines 6 – 9, page 127 lines 18 -21 of the records and the case of Akinbu v. Opaleye (1974) 11 SC 189.
He argued that the lower Court ought not to have attached any probative value to the respondent’s oral testimony based on the ground that the said testimony was manifestly self contradictory and also that the said testimony was at variance with the fact pleaded.
Learned counsel to the appellant referred the Court to the cases of Morohunfola v. Kwara Tech (1990) 4 NWLR (Pt. 145) 506;
Oyediran v. Alebiosu II (1992) 6 NWLR (Pt. 249) 550 at 556 pages 123 – 124.
He submitted that exhibits 1 – 3 ought to have been expunged by the lower Court in view of the fact that the said exhibits are inadmissible in law.
Learned counsel referred the Court to the Provision of the Lands Registration Law of Katsina State and the case of Alase v. Oloro Ilu (1964) All NLR 290.
Learned counsel to the appellant contended that the order of the lower Court to vacate and deliver up possession of the premises in dispute within a period of 1 week from the date of the judgment was borne out of misconception of the provision of the law by the lower Court.
In support of his submission he referred the Court to the provisions of the Sheriffs and Civil Process Law and the Judgment Enforcement Rules.
In conclusion, learned counsel to the appellant urged the Court to allow this appeal.
On the other hand, learned counsel to the respondent in his brief of argument submitted that the lower Court was not in error when it delivered judgment in favour of the respondent who had adduced cogent and credible evidence to substantiate his claim.
Learned counsel contended that contrary to the allegation by learned counsel to the appellant that the appellant was denied the right to fair hearing, he insisted that the appellant was given ample opportunity to ventilate his grievance by the learned trial judge.
The Court was referred to the cases of Adeyemi v. State (2011) 5 NWLR (Ppt. 1239) page 1 at 40,
Onuwa Kalu v. State (2011) 4 NWLR (Pt. 1238) 429 at 448 – 449.
Learned counsel to the respondent maintained that the learned trial judge had meticulously examined the evidence that was adduced by the appellant and as well applied the appropriate and required standard of proof before discrediting the evidence adduced by the appellant.
Learned counsel referred the Court to the provision of Section 132-133, 135, 136 and 139 of the Evidence Act, 2011.
In conclusion, learned counsel to the respondent urged the Court to dismiss the appeal.
In Gankon v. Ugochukwu Chem. Ind. Ltd (1993) 6 NWLR (pt. 297) 55 the Court held that:
“It is well settled that the plaintiff who is claiming a declaration of title to land bears the burden of proof established by the preponderance of evidence of his claim to the land in dispute. Thus it is for the plaintiff to prove his case on his evidence and he will fail if he does not succeed in establishing his claim before the Court.”

Also in Echenim Ofume v. Isaac Ngbeke (1994) 4 NWLR (Pt. 341) 746 the Court held that:
“if one’s purchase was under customary law then he must call his vendor or other persons who witnesses the transaction to testify”
In the instant appeal the respondent claimed to have acquired ownership of the land known and situate at Dorawa Street, Sabon Unguwar, Katsina State from the appellant via a sale agreement dated 28/9/2003.
In support of his aforesaid claim, the respondent called 3 witnesses.
Pw1 in his testimony stated that he personally witnessed the sale agreement that was entered between the appellant and the respondent for the sale of the appellant’s property.
Pw1 further stated that as at the time the said transaction was signed, there was no policeman at the scene where the agreement was signed. See page 109 and 116 or the records.
Pw2 on the other hand stated that because of his occupation as an estate agent he was invited to value the appellant’s house i.e the subject-matter of dispute in the appeal. Pw2 said he carried out a valuation exercise in the presence of the appellant. The witness stated at pages 116-117 of the record of Appeal thus:-
“we then left for Idi Driver’s House and met them at his House (Idi Garba and Alh. Masa’udu Lawal & Others) and it was then Idi driver entered his House and informed his wife, that people will enter his House for assessment. It was then Idi, myself entered the house where I assessed it in three (3) stages.
1. at N700,000.00
2. at N800,000.00
3. at N900,000.00.
It was the owner of the House Mallam Idi driver, said he would not sell his House at that rate and there and then I was discharged”.
The respondent who testified as Pw3 stated that he bought the land in dispute from the appellant at the cost of N1,100,000.00 while under cross-examination, he also stated that:
“yes, I bought the house from the defendant and I paid cash to the defendant. The issue of the stolen money is different from the issue at stake”
It is manifestly clear from the evidence before the lower court that the respondent had adduced sufficient evidence which tend to establish the fact that the respondent had entered into a sale agreement with the appellant for the acquisition of the land in dispute. Exhibits 1 – 3 further elucidates this fact.
Section 139 of the Evidence Act, cap 112 Laws of the Federation 1990 provides thus:-
“The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person but the burden may in course of a case be shifted from one side to the other; in considering the amount of evidence necessary to shift the burden of proof regard shall be had by the Court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively”

In Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65 the Supreme Court held that:
“In civil cases the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift”.
In the instant appeal, since the respondent had succeeded in establishing a prima facie claim over the land in dispute, the burden of displacing same shifted to the appellant.
The appellant at the lower Court in the course of his testimony stated that he sold the property in question to the respondent due to the torture that was meted out to him by the police. See page 127 of the records.
Although the appellant alleged that he involuntarily sold the land in question to the respondent, the appellant had not adduced any credible evidence before the lower Court that will substantiate his allegation.
The appellant did not deem it fit to call one Kabiru Maraya whom he purportedly claimed was the one who bailed him from the police. See page 129 of the records.
In fact Dw2 categorically stated in the course of his cross-examination that as at the time the said sale agreement was entered between the appellant and the respondent, there was no policeman. Dw2 stated thus:
“when I signed Exhibit 2 there was no policeman but the defendant was around when I signed the documents”.
It is also worth stating that even though the appellant sought to challenge the sale agreement that was entered with the respondent, for the High Court in suit No. KT/25/2003, which was struck out, the appellant had not appealed against the said decision which is still valid and efficacious.

Also in Vincent O. Awosile v. Chief F.O.D Sotumbo (1992) 5 NWLR (Pt. 243) 514 at 533 – 534 the Supreme Court held that:
“For the law is that it would be dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document which he has, after reading it, signed in the absence of proof of fraud or positive misrepresentation by the other party who would take advantage of the due execution of the document”.
In the instant appeal, since the content of the sale agreement that was entered between the appellant and the respondent had been declared valid and subsisting and the validity of the said agreement had not been set aside on appeal, this Court will continue to accord recognition and validity to the said agreement.
Consequently this appeal is hereby dismissed for lack of merit. The decision of the lower Court delivered on 7th November, 2008 is affirmed. There will be no order as to costs.

ITA GEORGE MBABA J.C.A.: I had the privilege of reading the lead judgment by my learned brother, ABDU ABOKI, JCA, and I agree with his reasoning and conclusions therein. Accordingly, I hereby, dismiss the appeal and abide by the consequential Orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Aboki, JCA. I abide by the conclusions reached in the lead judgment. I too dismiss the appeal and affirm the decision of the lower Court.

Appearances

I. B. OdigieFor Appellant

AND

IroagalachiFor Respondent