KAWU v. YUSUFARI
(2022)LCN/16990(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Monday, June 27, 2022
CA/G/407/2017
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ALHAJI TIJJANI ABBA KAWU APPELANT(S)
And
AHAJI WAKIL AHMED YUSUFARI RESPONDENT(S)
RATIO
WHETHER OR NOT A DOCUMENT IS BINDING ON THE PARTY WHO SIGNED IT
Let me make bold to say a document is binding on a party who signed same or on whose authority the document was signed. It is not binding on a person who knows nothing or anything about it. See Agbareh & Anor vs. Mimra & Ors (2008) LPELR-43211(SC); Asonibare vs. Mamodu & Anor (2013) LPELR-22192(CA). PER TOBI, J.C.A.
THE FUNDAMENTAL REQUIREMENTS OF THE LAW OF CONTRACT
This evidence is very crucial to the resolution of the appeal, because it is a fundamental requirement of the law of contract that there must be an offer and acceptance and consideration. In addition, parties must be ad idem on the terms of the contract.
Fundamentally, the most basic element in the creation of a contract is agreement. Did the parties agree and what did they agree upon; or whether an offer was made which the other party accepted unconditionally without any variation? These are the questions the Court would ask in determining whether parties have reached an agreement or not. It was against this background that the Supreme Court in Sapara V Univ. College Hosp. Bd. of Management (1988) LPELR-3014(SC) set out the essential ingredients of a valid contract as follows:
“In order to constitute a contract, there must be an offer made by one person to another and an unqualified acceptance of that offer by the person to whom it was made.”
Consequently, it is trite that for a contract to exist and be valid, there must be an offer, an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The parties involved in the contract must agree; in other words, there must be a consensus ad idem or an agreement of the mind to be bound by the terms of the agreement. Where parties are at cross purposes on the terms of the contract, and there is no agreement or meeting point, then the contract/agreement is not a valid and binding contract, and so, it cannot bind the parties nor can it be enforced by the Court–Oloja V Gov. Benue State (2021) LPELR-55634(SC) 25, A-C per Oseji, JSC; Ango Abdullahi V El-Rufai (2021) LPELR-55672(SC)9-10, D-F, per Oseji, JSC; Adedeji V Obajimi (2018) LPELR-44360(SC) 39, D, per Bage, JSC; BPS Construction & Engineering Co. Ltd V FCDA (2017) LPELR-42516(SC) 14-17, F-A; Baliol Nig. Ltd V Navcon Nig. Ltd (2010) LPELR-717(SC); Brossette Manufacturing Nig. Ltd V M/S Ola Ilemobola Ltd (2007) LPELR-809(SC) 35, E-G, per Ogbuagu, JSC. PER SANKEY, J.C.A.
THE DEFINITION OF EVALUATION OF EVIDENCE
What is evaluation of evidence in the legal parlance? How is evaluation of evidence done by the Judges in adjudication processes? The law is trite, evaluation of evidence simply means the assessment of evidence so as to give value or quality to it. Summary or restatement of evidence is not the same thing as evaluation of evidence. See KELAS V. FITTI (2020) LPELR–49690 (CA). Evaluation of evidence entails the trial Judge examining all the evidence before him before making his finding. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR 43463 (SC); BUHARI V. INEC & ORS (2008) LPELR 814 (SC).
A trial Court (as the lower Court in this appeal) has the duty to evaluate the evidence adduced before it, and ascribe probative value thereto in deciding or preferring which evidence is credible, and which evidence is unreliable, before, taking a decision on any matter in dispute. On the duty of a trial Court to evaluate evidence, ESO, JSC (of blessed memory) had this to say in the case of Chief Frank Ebba vs. Ogodo LC 499 AT 507-508:
“Indeed, it was the duty of the trial Court to assess witnesses, from impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the trial Court is named a “trial Court”. It is the trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial Judge that has the duty to see and indeed in the case, has seen the witnesses and also heard their evidence”. PER SANKEY, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State sitting in its original jurisdiction presided over by his lordship, H. Y. Mshelia in suit No; BOHC/MG/013/2016 delivered on 7/8/2017. The Appellant is the Claimant in the lower Court while the Respondent is the Defendant. The Claim in the lower Court is in paragraph 15 of the statement of claim found at pages 4-7 of the record of appeal. For completeness, I reproduce the claim below:
i. ‘A declaration that the Claimant is the rightful owner of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by Certificate of Occupancy No. BO/25224.
ii. An Order of specific performance of the contract of sale of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by Certificate of Occupancy No. BO/25224.
iii. An Order of possession of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by Certificate of Occupancy No. BO/25224.
iv. An Order against the defendant for payment of N10,000,000.00 (Ten Million Naira Only) as general damages.
v. An Order of perpetual injunction restraining the defendant, its agents, servants, privies or whatsoever from further acts of trespass on the situate along Bama Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
The land in dispute covered by Certificate of Occupancy No: BO/25224 is originally owned by the Respondent. The said property particularly the documents of the property got into the possession of the Appellant with the consent of the Respondent. While the Appellant had the documents in his possession, the Respondent was in possession of the property. These facts are common grounds between the parties in this appeal. The parties however went their separate ways when it comes to answering the question, how did the Appellant get the title documents and whether in the circumstance, the lower Court was right in dismissing the claim of the Appellant who was Claimant in the lower Court. In this respect, the case of the parties is different. The Appellant’s case is that the land was sold to him by the Respondent for the sum of N10,000,000 with a rider of the Respondent repurchasing same for the sum of N14,000,000 within six months failing which, the Appellant will take over the property. The Appellant relied on Exhibit C, the document titled ‘Conditional Sales Agreement’ between the Appellant as the purchaser and the Respondent as the seller. By the word ‘condition’ this means the sale agreement is not a finality until certain event happens. This is the effect of condition precedent in a document. In Burton Resources Ltd & Anor v. First Deepwater Discovery Ltd (2021) LPELR-54429 (CA), this is what this Court said on condition precedent:
“Once there is a condition that needs to be satisfied before an agreement will come into force, the general position of the law is that such a condition becomes condition precedent. The non-existence of the condition will be an obstacle to the enforcement of the agreement and will prevent anyone from getting any benefit from the agreement. Condition precedent has been defined as one which delays the vesting of a right until the happening of an event. See Nigercare Development Co., Ltd vs Adamawa State Water Board & Ors (2008) 2-3 S.C (pt. II) 202. The implication of a condition precedent is that none of the parties can benefit from the agreement or claim any right therein without the fulfillment of the condition precedent. In this regard, the Supreme Court case of Tsokwa Oil Marketing Co (Nig.) Ltd vs Bank of the North Ltd (2002) 11 NWLR Ltd (pt. 777) 163 is instructive. The apex Court held thus:
“It is trite law that once a condition precedent is incorporated into an agreement, that condition precedent must be fulfilled before the effect can flow. All conditions are (a) conditions precedent i.e. the sine qua non to getting the thing; or conditions subsequent, which keep and continue the thing (ibid). As to when conditions are precedent or subsequent, see 30 Law Journal 686; Porter v. Shephard 6 T.B. 665, Cooper v. London, Brighton & Southern Railway 4 Ex. D88; Barnard v. Faber (1893) 1 Q.B.340, cited WARRANTY; Horrigan v. Horrigan (1904) 1 Ir. R.22, 271 (Stroud’s Judicial Dictionary Vol. 1 A-C page 538). See also the case of Nigerian Bank for Commerce and Industry v. Integrated Gas (Nig.) Ltd. (1999) 8 NWLR (pt.613) 119 at 127 G-H wherein Aderemi, J.C.A. held as follows: “By Exhibits F and G, the parties have entered into what, in law, is a conditional contract, the condition precedent must happen before either party becomes bound by the contract. A condition must be fulfilled before the effect can follow.”
A condition precedent in an agreement as mentioned above is a condition without which occurrence no right under the contract can be donated to any of the parties.” Per TOBI, J.C.A
On the other hand, the Respondent’s case is that he was in need of some money to sort out pressing matter. He approached his friend for the sum of N10,000,000 whom his friend could not assist him with it. His friend however told him that he can source it from someone else. This is where the Appellant came into the scene who promised to loan him the sum of N10,000,000 on condition that he gave him a collateral as security for the loan. The Respondent gave the property in dispute as the collateral. The agreement between the parties orally was that the Appellant will give the Respondent N9,500,000 and keep N500,000. He denied signing Exhibit C and was emphatic that the transaction between them is a loan transaction and not a sale transaction. The Respondent filed a counter-claim in the lower Court as found in page 45 of the record. The counter-claim was as follows:
a. DECLARATION that the Conditional Sale Agreement dated 10th day of November, 2014 between Yusufari and Alh. Baba Kawu Tijjani is not his document;
b. A DECLARATION that the purported Conditional Sales Agreement is illegal, void and a fraud having been prepared without the Counter-claimant’s consent, authority or accent;
c. A PERPETUAL INJUNCTION restraining the Defendant either by himself, agents, servants, privies or whatsoever name called (otherwise howsoever) from claiming title to, trespassing into, selling or advertising for sale any portion of or otherwise ALL THAT property covered by Government of Borno State of Nigeria Certificate of Occupancy No. BO/25224 lying and situated along Bama Road Opposite Federal Government College, Maiduguri;
d. A DECLARATION that the deposit of the Government of Borno State Certificate of Occupancy No. BO/25224 by the Counter-claimant with the Defendant was as a collateral/security for the loan of N9.5 Million advanced to the Counter-claimant by the Defendant;
The lower Court after evaluating the evidence before it, dismissed the claim of the Appellant in these words at page 14 of the judgment, specifically at page 132 of the record as follows:
“On the whole, the Claimant has failed to make out a case for declaration of title over the property in dispute and/or an order for specific performance over the property. The suit fails and all the prayers dismissed. Parties to bear their cost.”
On the counter-claim, the lower Court surprisingly did not consider it but rather gave it a separate suit No BOHC/MG/CV/13 CC/16 and adjourned same since it is pending. This is strange as the counter-claim is in the suit which the Court would have taken together and specific finding be made on the counter claim. Since the counter-claim is not before this Court, I will not make any finding on the counter-claim, however if I need to make for the purpose of determining the appeal.
The Appellant dissatisfied with the decision filed an appeal on 26/9/2017 of 3 grounds through his counsel S.M. Konto Esq. In the Appellant’s brief of 28/12/17, learned counsel formulated a single issue for determination viz:
Having regard to the pleading whether the conditional sale agreement exhibit C binds the Respondent.
On this single issue, S.M. Konto Esq. submitted that the Respondent is bound by Exhibit C as he authorized Mohammed Zanna Abba his representative in the transaction to sign on his behalf relying on Ogboyaga Ltd vs. Nnebe (2016) ALL FWLR (pt 820) 1310; Nsirim vs Nsirim (2002) 3 NWLR (pt 755) 697. He urged Court to allow the appeal.
The Respondent’s counsel in this appeal is Ishaku Y. Haliru Esq. who settled the brief of the Respondent of 9/3/2022. Learned counsel formulated two issues viz:
1. Whether having regard to the pleadings and evidence before the lower Court Exhibit C is binding on the Respondent.
2. Whether the learned trial Judge evaluated the evidence before him.
On issue 1, relying on the testimony of the parties and their witnesses before the lower Court, counsel vehemently submitted that the Respondent did not sign Exhibit C. Learned Counsel cited Odutola vs Mabogunje (2013) 1 SCNJ 175; Pali vs Abdu (2019) 1 SCNJ 469; Utong vs Utong (2014) ALL FWLR (pt 746) 463; G. Chitex Ind Ltd vs Oceanic Bank (2005) 42 WRN 1; NNPC vs Roven Shipping Ltd (2020) ALL FWLR (pt 1033) 775.
On issue 2, it is the submission of counsel that the lower Court properly evaluated the evidence before it. On the whole, Ishaku Haliru of counsel urged to dismiss the appeal.
From the grounds of appeal and the issues formulated by the counsel in the briefs of the parties, the main issue for determination in this appeal is whether the Respondent is bound by Exhibit C. This exhibit is very important as it is the exhibit the Appellant is relying on in seeking for specific performance. Exhibit C is a Conditional Sale agreement between the Appellant as the purchaser and the Responder as the owner seller of the property in dispute. The purchase price according to Exhibit C is N10,000,000. In clause 4, there is the provision for the Respondent to repurchase the property for N14,500,000 within six months and failure to repurchase, the Appellant has powers to sell the property to any other interested purchaser. This is therefore not an outright sale but rather conditional on the Respondent’s failure to repurchase.
Like the lower Court, I am inclined to believe the Respondent’s case that the transaction is not an outright sale but rather a loan transaction where the property is used as security. In my mind, it appears to me that this is a case of money lender, the Appellant loaning money to Respondent which loan is secured by the land in dispute. This is clearly evidenced on a proper evaluation of the evidence before the Court, which in my opinion the lower did a good job on it. This is clear from Exhibit C which is tagged a ‘Conditional Sales Agreement”. It is conditional and not final because there is a clause for a repurchase by the Respondent, the defendant in the lower Court. This stands to reason that the land is not totally sold to the Appellant as there is provision for a repurchase. The content of Exhibit C and the evidence of the Respondent and his witness tend towards the fact that the whole transaction was not initiated from the onset as a sales transaction but rather a loan transaction with the landed property as security for the loan. If this is not so why the clause to repurchase?
Having said that much, I will adopt the main issue here which is, whether having regard to the pleadings and the evidence before the lower Court, Exhibit ‘C’ is binding on the Respondent? The answer to this question is what will determine whether the appeal will be allowed or dismissed.
The lower Court rightly in my view had held that Exhibit C is not binding on the Respondent. The Appellant’s counsel feels otherwise.
Let me make bold to say a document is binding on a party who signed same or on whose authority the document was signed. It is not binding on a person who knows nothing or anything about it. See Agbareh & Anor vs. Mimra & Ors (2008) LPELR-43211(SC); Asonibare vs. Mamodu & Anor (2013) LPELR-22192(CA)
One point that is clear and admitted even by the Appellant is that the Respondent did not sign Exhibit C. With this admission, the burden to prove that the person who signed Exhibit C on behalf of the Respondent did so with his permission or authorization either expressly or impliedly is on the Appellant. This burden is on the Appellant and not on the Respondent because it is the Appellant who is alleging that Mohammed Zanna Abba is a representative of the Respondent. This is based on the legal principle that the party who asserts or alleges a point must prove. See Akinbade & Anor v. Babatunde & Ors (2017) 12 S.C (pt III) 84; Dasuki v. FRN & Ors (2018) LPELR-43897(SC).This burden has become more important when the DW2, a witness of the Respondent testified at the lower Court that he signed Exhibit C but not for the Defendant, that is Respondent. He even said he signed the said document without consulting with the Respondent. Is there evidence before the lower Court that the Respondent authorized the Mohammed Zanna Abba to sign Exhibit C? I have looked at the whole record and cannot find any evidence to that effect. Although, to some extent the said Mohammed Zanna Abba can be an agent of the Respondent but the point must be made that an agent can only act within the terms of the authority donated to him by his principal.
A person who acts on behalf of another can be an agent for whose action the principal will be vicariously liable for. This is not a blanket liability as an agent must act within the confines of the authority given to him. If he acts outside the authority given to him, the principal cannot be liable as the agent will be liable for his own act. See Cotecna Intl Ltd v. Churchgate Nig. Ltd & Anor (2010) 12 S.C (pt II) 140. In Ndoma-Egba v. A.C.B. plc (2005) LPELR-1973(SC), the apex Court held in this regard thus:
“A firm can only be made liable for what is done by one of its members on the supposition that the act in question was authorised by the other members. Now, as by law they are held prima facie to authorise all acts done in carrying on the business of the firm in the usual way, they cannot escape liability for any act of this character unless they can show that the apparent authority to do it did not exist, and was known not to exist. But when it is sought to make the firm liable for some act not prima facie authorised by it, an actual authority by it must be shown; ignorant the person seeking to charge it may have been of what was authorised and what was not. In the case now supposed the firm did not mislead him; and if he was misled by the representations of the partner with whom he dealt, his remedy is against that partner; just as when an agent untruly represents his authority, a person dealing with him acquires no right against the principal, but must look to the agent for indemnity.” Per OGUNTADE, J.S.C.
Relating the above settled legal principles to the case on appeal, it will be very difficult for me to come to the conclusion that DW2 who signed Exhibit C did so within the powers the Respondent gave to him. Let us at this point look at Exhibit C and the evidence concerning the exhibit before the Court. On the face of it, Exhibit C is a conditional sale agreement and not a final sales agreement. Can a conditional sale agreement pass title to land? Certainly not, hence the order sought for specific performance is an appropriate order to seek for. The five ways of proving title established in the case of Idundun vs Okumagba (1976) LPELR–1431 (SC) does not include conditional sale agreement. For the sale to be made final, certain conditions must be fulfilled. No order agreement was signed as follow up to this conditional sale agreement. Under normal circumstance, a final sale agreement should have followed the conditional. This was not done.
On the face of Exhibit C, it is an agreement entered between the parties in this appeal. On the column of the Respondent to sign it was signed for him. This corresponds with the Respondent’s evidence at pages 83-84 of the record that he did not sign Exhibit C. The Appellant also admitted this fact in his evidence at page 82of the records when he said under cross-examination that the Respondent did not sign Exhibit C. He even admitted that he never met the Respondent. DW 2 Mohammed Zanna Abba in his evidence at page 84 of the record, admitted signing Exhibit C as it clearly shows on the face of Exhibit C where he signed both for the Respondent and as a witness for him.. He was emphatic that he never consulted with the Respondent before he signed Exhibit C for him. Can the Respondent be held responsible for Exhibit C, a document he knows nothing about which he did not authorize the DW2 to sign on his behalf? I certainly do not think so and I will not be persuaded by any submission to the contrary. This is more so when there is no evidence that the DW2 had unlimited powers to act for the Respondent. Though, DW2 said he represented the Respondent in the transaction but he knows he has limits that is why when he was sent to ensure the money was paid into the account of the Respondent’s business name Arewa Line Transport Company Limited, he had to call the Respondent to confirm whether to accept the N9,500,000 instead of the N10,000,000. It stands to reason that the DW2 should have called the Respondent before signing Exhibit C. While I appreciate that an agent can act using reasonable discretion which flows naturally from the authority the principal gives him, that does not include making fundamental decisions which is clearly outside the authority given him. In Eyiboh v. Mujaddadi & Ors (2021) LPELR-57110 (SC), the apex Court held:
“Where an agency is created for the expressed purpose of searching for and securing a prospective purchaser of a property, the agent cannot exceed the scope of his agency to agree on a purchase price with a buyer, receive the purchase price agreed between him and the buyer and prepare the document of conveyance for the seller’s signature.
This is so irrespective of the fact that the agent has the original copies of the documents of title to the property. Possession of the original copies of documents of title to the property is no authority to sell the property on behalf of the owner or behind the owner. Without the authority of the owner, such agent cannot negotiate the price and other terms for the sale of the property. A purchaser of property who pays the purchase price of the property to a person whose name is not on the documents of title as owner or as administrator or trustee of the property, does so at his own peril, especially where the purchaser had made no contact or negotiation with the owner or administrators or trustee of the property for the sale of the property. The fact that the agent is one of the heir or beneficiary of the properly administered by administrators appointed by letters of administration does not change his status as agent for the purpose of securing a buyer of the property and cannot negotiate the sale, collect purchase price and prepare the conveyance without the legally recognized written authority of the administrators to do so. In the absence of a legally recognized written authority to sell the property on behalf of the owner, such as a registered power of attorney, payment of the purchase price to the agent, would not bind the owner of the property as to create a binding contract of sale of the property between him and the person who paid such purchase price. So the transactions between Jamilu, as the agent who contacted the 4th respondent to purchase the said property and the payment of the sum of 100 million Naira to him as the purchase price without the concurrence of the three administrators of the property is of no legal effect and does not create a legally binding contract of sale of the property.” Per AGIM, J.S.C
To show that Mr. Mohammed Zanna Abba did not have unlimited powers in acting for the Respondent, this is what he said at paragraph 12 of his written deposition on oath which he adopted as his evidence in the trial. I quote:
“…the sum of N9,500,000.00 ONLY WAS PAID INTO Arewaline Transport Limited account with First Bank Plc which I provided on 7th Day of November, 2014 in my absence but in the presence d period (Kangabi) whom I directed to represent me on the following terms as orally agreed upon the parties….
c. That the entire loan of N9.5 Million shall be refunded/repaid within six (6) months from the date of receipt.
d. That the sum of N500,000 which the claimant withheld to make the loan N10Million shall be held by the climant as the accrued interest on the loan should I default in paying back the loan at the agree (that is that I shall refund N10million to the claimant)”
From the above paragraph and evidence the limit of the authority to the said Mohammed Zanna Abba was not for general purpose but with specific relevance to the loan agreement and not a sales agreement. What is worrisome is that the lawyer who drafted the agreement and brokered the money changing hands never called the Respondent who he knows very well to know whether the said Mohammed Zanna Abba has his authority to Exhibit C.
In the circumstance, I cannot see my way clear in holding for the Appellant in this appeal. This appeal fails and it is dismissed by me. I affirm the decision of his lordship, H. Y. Mshelia of the Borno State High Court in Suit No: BOHC/MG/CV/13/16-Alhaji Abba Kawu Tijjani vs. Alhaji Wakil Ahmed Yusufari Sarki delivered on 7/8/2017.
JUMMAI HANNATU SANKEY, J.C.A.: I have read the judgment delivered by his lordship, Ebiowei Tobi, JCA, and I agree.
I have read the synopsis of the facts leading to this appeal and it is evident that the appeal hinges on whether the agreement between the Appellant and the Respondent was a conditional sale of land agreement which was binding on the Respondent, or it was a loan agreement.
As disclosed in the record of appeal, the Respondent sought a loan of N10 Million (Ten Million Naira) from his friend to meet a pressing need who was however unable to avail him of it. His friend therefore sourced the loan from the Appellant, who agreed to give the Respondent the loan. As far as the Respondent was concerned, the loan was given to him based on some conditions, to wit: (i) from the sum of N10 Million, the Appellant would give him only N9.5 million and would keep the balance of N500,000.00 which would represent the interest on the loan; (ii) the sum would be repaid within six months or the Respondent would forfeit the land to the Appellant, being a collateral. However, on the part of the Appellant, he believed that the Respondent sold the land in question to him outrightly with an option to repurchase the land within six months at the rate of N14 Million. He brandished Exhibit C as evidence of this conditional sale of land agreement.
From the pleadings and evidence, both oral and documentary, adduced in support of the respective cases of the parties, it is apparent that there was no meeting of minds. For whereas the Appellant contends that the transaction between them was a conditional sale of land agreement, the Respondent, who owns the land, contends that it was a simple loan agreement. The Appellant hinged his claim on Exhibit C, an agreement purported to have been made between him and the agent of the Respondent, DW2; the Respondent denied consenting to the agreement and contends that DW2, his lawyer, did not have his authority to enter into such a sale of land agreement and to sign same on his behalf.
The stroke that broke the camel’s back or the nail that sealed the coffin was the evidence of the lawyer, DW2, who positively admitted before the trial Court that he actually did not consult the Respondent on the terms of the agreement in Exhibit C before he signed it. This evidence is very crucial to the resolution of the appeal, because it is a fundamental requirement of the law of contract that there must be an offer and acceptance and consideration. In addition, parties must be ad idem on the terms of the contract.
Fundamentally, the most basic element in the creation of a contract is agreement. Did the parties agree and what did they agree upon; or whether an offer was made which the other party accepted unconditionally without any variation? These are the questions the Court would ask in determining whether parties have reached an agreement or not. It was against this background that the Supreme Court in Sapara V Univ. College Hosp. Bd. of Management (1988) LPELR-3014(SC) set out the essential ingredients of a valid contract as follows:
“In order to constitute a contract, there must be an offer made by one person to another and an unqualified acceptance of that offer by the person to whom it was made.”
Consequently, it is trite that for a contract to exist and be valid, there must be an offer, an unqualified acceptance of the offer and a legal consideration. Indeed, there must be mutuality of purpose and intention. The parties involved in the contract must agree; in other words, there must be a consensus ad idem or an agreement of the mind to be bound by the terms of the agreement. Where parties are at cross purposes on the terms of the contract, and there is no agreement or meeting point, then the contract/agreement is not a valid and binding contract, and so, it cannot bind the parties nor can it be enforced by the Court–Oloja V Gov. Benue State (2021) LPELR-55634(SC) 25, A-C per Oseji, JSC; Ango Abdullahi V El-Rufai (2021) LPELR-55672(SC)9-10, D-F, per Oseji, JSC; Adedeji V Obajimi (2018) LPELR-44360(SC) 39, D, per Bage, JSC; BPS Construction & Engineering Co. Ltd V FCDA (2017) LPELR-42516(SC) 14-17, F-A; Baliol Nig. Ltd V Navcon Nig. Ltd (2010) LPELR-717(SC); Brossette Manufacturing Nig. Ltd V M/S Ola Ilemobola Ltd (2007) LPELR-809(SC) 35, E-G, per Ogbuagu, JSC.
It is therefore for these reasons and the fuller reasons in the lead judgment that I find no merit in the appeal. It fails and is dismissed. I abide by the consequential orders in the lead judgment.
IBRAHIM SHATA BDLIYA, J.C.A. (DISSENTING): I have read, before now, the leading judgment, just delivered by His Lordship, EBIOWEI TOBI, JCA. I do not agree with the reasoning and decision arrived at in the lead judgment to the dismissal of the appeal, for this reason, I have decided to dissent from the leading judgment. These are my reasons for doing so.
This is an appeal against the judgment of the Borno State High Court of Justice, (hereinafter referred to as the lower Court), in suit No. BOHC/MG/013/2016, on the 7th day of August, 2017, by Haruna Y. Mshelia, J.
The Appellant (as the claimant) sued the Respondent, as the defendant at the lower Court, seeking the following reliefs:
i. A declaration that the Claimant is the rightful owner of the property situate along Barna Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
ii. An order of specific performance of the contract of sale of the property situate along Barna Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
iii. An order of possession of the property situate along Barna Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
iv. An order against the defendant for payment of N10,000,000.00 (Ten Million Naira Only) as general damages.
v. An order of perpetual injunction restraining the defendant, its agents, servants, privies or whatsoever from further acts of trespass on the situate along Barna Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
vi. Cost of the suit.
The Appellant and the Respondent were alleged to have entered into a conditional agreement for the sale of a land property belonging to the latter situate at Bama Road, known as Arewa Line-Transport, opposite to the Federal Government College, Maiduguri. The Respondent was represented by his manager, Mohammed Zanna Abba, and his solicitor, from Mussawa Chambers. It was agreed that the sum of ten million naira (N10,000,000.00), which was to paid after the Respondent might have given vacant possession of the land or purchased same at the sum of N14,000,000 within six 6 months, from the date the transaction was entered into by the parties. A conditional sale agreement was prepared and signed by the parties and or their representative on the 10th day of November 2014 when the title documents were handed over to the Appellant. The Respondent failed to repurchase the property, nor did he give vacant possession of same to the Appellant. The Appellant, by his solicitor, instituted suit No BOHC/MG/407/2017 at the lower Court. At the lower Court, the Appellant called 2 witnesses and tendered documents, which were admitted in evidence as Exhibits. Respondent called two 2 witnesses and tendered documents, which were admitted in evidence as Exhibits. After the taking of evidence, and addresses of learned counsel to the parties, the learned Judge of the lower Court, delivered his judgment on the 7th day of August, 2017, wherein, the suit filed by the Appellant, was dismissed being unmeritorious.
Aggrieved by the decision of the lower Court, the Appellant filed notice of appeal to this Court on the 26th of September 2011, on 3 grounds of appeal, which are thus:
1. The learned trial Judge erred in law in holding that:-
“All the above evaluation of evidence in this case now point to one obvious conclusion, that is the defendant has not been shown to execute exhibit ‘C’ or authorize anyone to sign exhibit ‘C’ on his own behalf. Therefore exhibit ‘C’ is not binding on the Defendant as there was no consensus ad idem on the content of the exhibit between the Claimant and the Defendant”.
PARTICULARS OF ERROR
a. Exhibit ‘C’ the conditional sales agreement was executed by the agent of the Respondent.
b. The Respondent by his pleadings and witness statement on oath did admitted that Mohammed Zanna Abba the one who signed the agreement represent him in the transaction;
c. The Respondent permitted by his word to be represented in the transaction.
d. There were evidence before the Court that the agreement exhibit. ‘C’ was executed by the Respondent’s agent.
2. The learned trial Judge erred in law when he failed to properly evaluate. the evidence before the Court thereby occasion a miscarriage of justice.
PARTICULARS OF ERROR
a. The trial Court has not properly evaluated the evidence adduced by the parties.
3. The judgment is against the weight of evidence.
4. RELIEF SOUGHT: An order setting aside the judgment of the trial Court and grant all the reliefs sought by the Appellant before the trial Court.
The Appellant’s brief of argument, settled by S.M Konto Esq, was filed on the 20th day of December 2017, on pages thereof, a sole issue was culled from the 3 grounds of appeal, which is thus:
“Having regard to the pleadings, whether the conditional sale agreement, Exhibit “C” binds the respondent”
The Respondent’s brief of argument, settled by Ishaku Y. Haliru Esq, was filed on the 8th of March, 2021, on page 2, thereof issues 2 were distilled out of the grounds of appeal, thus:
1. Whether having regard to the pleadings and the evidence before the lower Court, Exhibit ‘C’ is binding on the respondent?
2. Whether the learned Judge of the lower Court evaluated the evidence before him?”
The issue for determination of the appeal contained in the Appellant’s and the Respondent’s brief of argument are not dissimilar, they are intertwined, interwoven and dovetailing, such that one can handly distinguish one from the other. After considering the issues, supra, I am of the view that, Issues contained in the Respondent’s brief of argument, are apt, for the determination of the appeal, hence, same are hereunder taken and resolved in this order, Issue 2 and then issue 1 accordingly.
ISSUE 2
Whether the learned Judge of the lower Court evaluated the totality of the evidence adduced by the parties, in arriving at the decision, dismissing the reliefs sought by the appellant.
S.M Konto Esq, of learned counsel, who settled the Appellant’s brief of argument, made no submissions on this issue.
Ishaku y. Haliru Esq, in his submissions on pages 11 to 13 of the Respondent’s brief of argument, submitted that learned Judge of the lower Court evaluated the evidence adduced by the parties before arriving at the decision, dismissing the claims of the claimant. Learned counsel cited and relied on a litany of decisions of the superior Courts, wherein the principles of law on the evaluation of evidence was espoused and urged their Court to be guided with same, in the resolution of issue 2.
Did the learned Judge of the lower Court evaluate the evidence in arriving at the decision in the judgment delivered on the 7th day of August, 2017? What is evaluation of evidence in the legal parlance? How is evaluation of evidence done by the Judges in adjudication processes? The law is trite, evaluation of evidence simply means the assessment of evidence so as to give value or quality to it. Summary or restatement of evidence is not the same thing as evaluation of evidence. See KELAS V. FITTI (2020) LPELR–49690 (CA). Evaluation of evidence entails the trial Judge examining all the evidence before him before making his finding. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR 43463 (SC); BUHARI V. INEC & ORS (2008) LPELR 814 (SC).
A trial Court (as the lower Court in this appeal) has the duty to evaluate the evidence adduced before it, and ascribe probative value thereto in deciding or preferring which evidence is credible, and which evidence is unreliable, before, taking a decision on any matter in dispute. On the duty of a trial Court to evaluate evidence, ESO, JSC (of blessed memory) had this to say in the case of Chief Frank Ebba vs. Ogodo LC 499 AT 507-508:
“Indeed, it was the duty of the trial Court to assess witnesses, from impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the trial Court is named a “trial Court”. It is the trial Court and hence a Court of appeal should attach the greatest weight to the opinion of the trial Judge that has the duty to see and indeed in the case, has seen the witnesses and also heard their evidence”,
The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe vs. B.C.C. Ltd (2014) ALL FWLR (Pt. 747) P. 707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighted together. That is the admissible and relevant evidence of the plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed more or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of probative value of their piece of evidence”,
Therefore, in evaluating the totality of evidence adduced by the parties, a Court of law is duty bound to consider the entire evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of evidence so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See Lagga vs. Sarhuna (2008) 16 NWLR (Pt. 1114) P.427 AT 460.
Specifically, on pages 126 to 132, of the printed record of appeal, the learned Judge evaluated the totality of the evidence on page 133 and arrived at his decision, thus:
“On the whole, the claimant has failed to make out a case for declaration of title over the property in dispute and/or an order for specific performance over the said property. The suit fails and all the prayers dismissed. Parties to bear their cost.”
Where a trial Court has evaluated the evidence and ascribed probative value thereto, and arrived at findings of facts on which a decision had been taken properly, an appellate Court has no business to interfere with such findings and decision. See Bodi vs Agyo (2003) 3 NWLR (PT 846) P. 305 AT 335, where the Court held that an appellate Court is always reluctant to disturb or interfere with evaluation of evidence and findings of the trial Court except in the following instances:
a. Where there is a failure on the part of trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
b. Where the trial Court fails to make findings of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
c. Where the trial Court gives an unfair treatment on the evidence of the parties before it. See NEPA VS. ARCHIDA (2006) 7 NWLR PT 979 P. 245 AT 272”
The evaluation and ascription of probative value to the evidence adduced by the parties have been demonstrated, supra. The learned Judge of the lower Court did evaluate and ascribed credibility to the evidence before him, in the judgment delivered on the 7th of August, 2017.
ISSUE 1
Whether, having regard to the pleadings and the totality of the evidence before the lower Court, Exhibit ‘C’ is binding on the respondent?
S. M. Konto Esq, of learned counsel to the Appellant, made submissions contained on pages 2 to 6 of the brief of argument, citing and relying on a litany of decisions of the superior Court, wherein the principles of law were espoused on the principles of law on contract disputes, or other related matters, to buttress his contention that, Exhibit ‘C’ the conditional sale agreement between the Appellant and the Respondent, is valid in law, and binding on the Respondent. In conclusion, learned counsel adumbrated on page 5 of the brief of argument, thus:
“where any person by word or conduct represents or permits it to be represented, that another person has authority to act on his behalf, he is bound by the acts of such other person with respect to anyone dealing with him as agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have. The person will be estopped from denying that the agent has such authority”
Learned counsel then urge that the sole issue be resolved in favour of the Appellant, and to allow the appeal, set aside the judgment of the lower Court and enter judgment in favour of the Appellant.
Ishaku Y. Haliru Esq, of learned counsel to the Respondent in his elaborate submissions on pages 4 to 13 of the brief of argument did contend that Exhibit ‘C’ cannot be valid and binding on the Respondent, in that same was not signed by him nor by his representative as alleged by the Appellant. Decisions of the superior Court, on principles of law on contract law were relied on to buttress his contentious supra. Submitting further, learned counsel pointed out that the contentions Exhibit ‘C’ Conditional Sale Agreement, was not signed by the Respondent nor by his representative, therefore, same is not of legal effect to bind the Respondent. Concluding, learned counsel did urge that the sole issue be resolved against the Appellant, and in consequence, therefore, dismiss the appeal, and affirm the judgment o the lower Court.
On page 132 of the printed record of appeal, the learned Judge of the lower Court, after the evaluation of the totality of the evidence adduced by both parties found and held thus:
“On the whole, the claimant has failed to make out a case for declaration of title over the property in dispute and/or an order for specific performance over the said property. The suit fails and all the prayers dismissed. Parties to bear their cost.”
Was the learned Judge of the lower Court right in arriving at the decision, supra? That the Respondent was not bound by the conditional sale agreement, Exhibit ‘C’. That Respondent, in his statement of oath, which he adopted at the lower Court, while giving evidence, deposed as follows, as recorded on pages 42 line 12 of the printed record of appeal.
“the sum of N9,500,000.00 only was paid into Arewaline Transport Limited account with First Bank Plc which I provided on 7th Day of November, 2014 in my absence but in the presence of my brother one Mohammed Zanna Abba (also known as Kangadi) whom I directed to represent me on the following terms as orally agreed upon by the parties:
a. That the entire loan of N9.5million shall be refunded/repaid within six (6) months from the date of receipt.
b. That the sum of N500,000 which the claimant withheld to make the loan N10million shall be held by the claimant as the accrued interest on the loan should I default in paying back the loan at the agreed period (that is that I shall refund N10million to the claimant)”
The Respondent was represented by Mohammed Zanna Abba when Exhibit ‘C’ was entered into as indicated therein as could be seen in the said document, on pages 228 to 230 thereof, where his name and signature have been captured on same. Since the Respondent’s representative signed Exhibit ‘C’ pursuant to his authorization to do so by the Respondent, can he deny that Mohammed Zanna Abba (who testified as Dw2 at the trial) on same Issue? Having presented Mohammed Zanna Abba as his representative in the making of Exhibit ‘C’ to the Appellant, he cannot deny same. He is bound by Exhibit ‘C’. The case of OGBOYAGA LTD V. NNEBE (2016) ALL FWLR PT 820 P. 1310 AT 1325, where it was enunciated that:
“where any person by word or conduct represents or permits it to be represented, that another person has authority to act on his behalf, he is bound by the acts of such other person with respect to anyone dealing with him as agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have. The person will be estopped from denying that the agent has such authority”
Reinforces the foregoing proposition of the law, see also NSIRIM VS NSIRM (2002) 3 NULR PT. 755 P. 697 AT 714. What is more, the Respondent, in his evidence at the lower Court, admitted that he instructed Mohammed Zanna Abba (Dw2) to represent him, having admitted that the sum of N9,500,000.00 was paid into the account of Arewa Transport Ltd as deposed by the Respondent in his statement of oath, paragraph 12 thereof, which is hereunder reproduced:
“the sum of N9,500,000.00 only was paid into Arewaline Transport Limited account with First Bank Plc which I provided on 7th Day of November, 2014 in my absence but in the presence of my brother one Mohammed Zanna Abba (also known as Kangadi) whom I directed to represent me on the following terms as orally agreed upon by the parties:
c. That the entire loan of N9.5million shall be refunded/repaid within six (6) months from the date of receipt.
d. That the sum of N500,000 which the claimant withheld to make the loan N10million shall be held by the claimant as the accrued interest on the loan should I default in paying back the loan at the agreed period (that is that I shall refund N10million to the claimant)”
The law is trite, what has been admitted, need no proof. See NBC PLC VS UBANI (2014) ALL FWLR PT. 218 P. 803 AT 826.
The provisions of Section 169 to the Evidence Act, 2016, reinforce the contention of learned counsel to the Appellant, that the Respondent cannot deny that he instructed Dw2, Mohammed Zanna Abba, to be his representative, in the making process of Exhibit ‘C’, Section 169 of the Evidence Act, 2016, thus:
“when one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
Exhibit ‘C’ the Conditional Sale Agreement, qualifies as a registrable instrument which can be relied on to enforce any contract made thereunder. This is the position of the law as espoused in the case of ADENIRAN VS OLAGUNJU (2012) FULR PT. 87 P.825 AT 843, wherein, it was held, thus:
“A registrable instrument which has not been registered is admission to support a claim for specific performance”
The Respondent cannot deny authorizing Dw2, Mohammed Zanna Abba, as the person who he instructed and/or authorized to act on his behalf in the agreement between him and the Appellant. Again, the principles of law propounded in the case of OGBOYAGA LTD VS NNEBE (2016) ALL FULR pt. 820 p. 1310 AT 1325, it apt, at this junction, the Court held thus:
“…where any person by word or conduct represents or permits it to be represented, that another person has authority to act on his behalf, he is bound by the acts of such other person with respect to anyone dealing with him as an agent on the faith of such representation, to the same extent as if such other person had the authority which he was so represented to have. The person will be estopped from denying that the agent has such authority. In the instant case, where Mr. Omiade was proved to have acted on behalf of the appellant in procuring the construction materials, the appellant was rightly held bound to pay the respondent”.
Exhibit ‘C’ was executed by Mohammed Zanna Abba who testified at the lower Court, as Dw2, he signed the said Exhibit as could be found on page 30 of the printed record of appeal, on the 10th of November 2014. In view of the foregoing adumbration, the decision of the learned Judge of the lower Court, that Exhibit “C’ is not binding on the Respondent, cannot be right. The Respondent is bound by the said Exhibit “C” as shown in the foregoing paragraphs of this judgment. In the end result, issue 1 is resolved in favour of the Appellant. The judgment of the lower Court delivered on the 7th day of August 2017, is hereby set aside. In its place, I enter judgment in favour of the Appellant per the Writ of Summon and statement of claim filed on the 24th day of February 2016, are hereby granted, that is:
A. A declaration that the claimant is the rightful owner of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
B. An order of specific performance of the contract of sale of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224.
C. An order of possession of the property situate along Bama Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy No. BO/25224 .
D. An order against the defendant for payment of N10,000,000.00 (Ten Million Naira Only) as general damages.
E. An order of perpetual injunction restraining the defendant, its agents, servants, privies or whatsoever from further acts of trespass on the situate along Bama Road, Opposite Federal Government College Maiduguri covered by certificate of occupancy-No. BO/25224.
F. Cost of the suit, assessed at N100,000.00 awarded to the appellant.
Appearances:
S. KONTO ESQ For Appellant(s)
ISHAKU Y. HALIRU For Respondent(s)
