MADAM SARAH OSCAR & ANOR v. MALLAM MANSUR ALIYU ISAH (2014)

MADAM SARAH OSCAR & ANOR v. MALLAM MANSUR ALIYU ISAH

(2014)LCN/7339(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/K/336/2007

RATIO

PRACTICE AND PROCEDURE: PLEADINGS; THE PURPOSE OF PLEADINGS AND WHETHER PARTIES ARE BOUND BY THE PLEADINGS

It must be stated here in line with the authorities in that regard that the purpose of pleadings is to make the parties to define with some accuracy the issues to be contested at the trial so as to avoid one of the parties springing surprise on the other.
See UKAEGBU V. UGOJI (1991) NWLR (Pt. 196) 127; OLADUNJOYE V. AKINTERNWA (2000) 4 SC (PART 1) 19; OSHODI V. EYIFUNMI (2007) 7 SC (Pt. II) 145; BUNGE v. GOV. OF RIVERS STATE [2006] ALL FWLR [Pt. 325] 1. It is also trite that the parties as well as the court are bound by the pleadings in the case and are not allowed to present a case out side or at variance with the pleadings. See BUHARI V. OBASANJO (2005) 13 NWLR (Pt. 94) 1; E.D. TSOKWA & SONS CO. LTD v. UBN LTD (1996) 10 NWLR (Pt. 478) 281; MAKINDE V. AKINWALE (2000) 1 SC 89; therefore evidence led on facts not pleaded will go to no issue; AKEREDOLU V. AKINREMI [1989] 3 NWLR (Pt. 108) 164; OKOLO v. DAKOLO [2006] ALL FWLR (Pt. 336) 201; OHIAERI V. AKABUEZE (1992) 2 NWLR (Pt. 221) 1; ALLIED BANK (NIG) LTD V. AKUBUEZE (1997) 6 NWLR [Pt. 509] 374. per. ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER ONCE THE PARTIES HAVE REDUCED THE TERMS OF THEIR AGREEMENT INTO WRITING, IT IS THE WRITTEN DOCUMENT THAT GUIDES THEIR RELATIONSHIP AND NO EXTRINSIC EVIDENCE IS ADMISSIBLE TO ALTER, OR VARY THAT DOCUMENT

CONTRACT: A VALID CONTRACT OR AGREEMENT; ELEMENTS OF A VALID CONTRACT OR AGREEMENT

The essential elements of a valid contract or agreement are that there must be a definite offer and a definite acceptance from one party to, and by the other. There must be consideration and the parties must have intended a relationship in law. See OKUBULE V. OYAGBOLA [1990] 4 NWLR (Pt. 147) 723; OMEGA BANK (NIG) PLC. V. O.B.C. LTD [2005] 8 NWLR (pt. 928) 547. per. ISAIAH OLUFEMI AKEJU, J.C.A.

PRACTICE AND PROCEDURE: A REPLY TO COUNTER CLAIM; WHEN CAN A PLAINTIFF NOT FILE A REPLY TO A STATEMENT OF DEFENCE, WHAT IS A COUNTER CLAIM, THE DUTY OF THE PLAINTIFF TO FILE A REPLY IN AN ACTION IN WHICH THE DEFENDANT FILES A COUNTER CLAIM AND THE IMPLICATION OF THE FAILURE TO FILE A REPLY TO COUNTER CLAIM

The law is that a plaintiff may not file a Reply to a statement of defence where the only intention therefore is to deny allegations made by the defendant in the statement of defence. See OBOT V. CBN (1993) 3 NWLR [Pt. 310] 140; OLUKOLE V. KASIMU [1973] 4 SC 113; ONYEAKAONWU v. EKWUBIVI (1966) 1 ALL NLR 32. In respect of the counter claim, the law is trite that a counter claim is a separate and independent action which has been brought by a defendant in the same action commenced by the plaintiff. OGBONNA V. A.G. IMO STATE [1992] 1 NWLR (Pt. 220) 647; GOWON V. IKE-OKONGWU (2003) 6 NWLR [Pt. 815] 38. A plaintiff in an action in which the defendant files a counter claim has a duty to file a Reply to the counter claim, otherwise he may be presumed to have no defence to the counterclaim. The position of the law is however that where the counter claim has not raised fresh issue, and the issues in the counter claim are already covered by the statement of claim, a reply becomes unnecessary. The position is also that the failure to file a reply to counter claim does not give automatic success to the counterclaim as the defendant must prove the counterclaim on the preponderance of evidence to succeed.
The precise position of the law where the plaintiff fails to file a reply to counterclaim was stated by the Supreme Court in USMAN V. GARKE [2003] FWLR (Pt. 177) 815 per TOBI JSC at page 836 as follows:
“A reply to a counter claim becomes necessary if the counter claim raises a fresh or new issue.
Where the counter claim has not raised a fresh or new issue, a reply is not necessary. In other words, where the issues raised in the counter claim are already covered by the statement of claim, a reply is otiose. See EGESIMBA V. ONUZURUIKE [2002] FWLR (pt. 128) 1386, [2002] 15 NWLR (Pt. 791) 456.
per. ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE UNLESS IT IS PERVERSE

Evaluation of evidence and ascription of probative value thereto are primarily the functions of the trial court, and where the trial court has unquestionably carried out this function, an appellate Court will not interfere with the findings of the trial court or substitute its own views for that of the trial court. See AGBI V. OGBEH (2006) ALL FWLR (Pt. 329) 941; SHA V. KWAM (2000) 5 SC 178; OJOKOLOBO v. ALAMU (1998) 9 NWLR (Pt. 565) 226; FAGBENNO v. AROBALI [2006] 7 NWLR [Pt. 978] 174. per. ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: JURIDICAL PRECEDENT OR THE DOCTRINE OF STARE DECISIS; WHETHER A COURT OF SUBORDINATE JURISDICTION IT BOUND BY THE PRINCIPLE OF LAW UPON WHICH A COURT THAT IS HIGHER IN HIERARCHY HAS DECIDED A CASE
By the popular doctrine of stare decisis which is the foundation for judicial precedent, a court subordinate in the judicial hierarchy is bound by the principle of law upon which a court that is higher in hierarchy has decided a case, and must apply that decision especially where the facts are similar to those in the case before the lower court. In NGWO V. MONYE (1970) LPELR 1991 (SC), the Supreme Court, per Coker JSC held that.
“As a matter of logic and sense, if the grounds upon which a decision is predicated are non existent and the decision had proceeded on the basis of their subsistence, the decision must be demonstrably wrong. Such a decision is however still binding on subordinate courts under the principle of stare decisis which is the foundation on which the consistency of our judicial decisions in this country is based”. See also DALHATU V. TURAKI & ORS. [2003] 7 SC1; NEPA v. ONAH (1997) 1 NWLR (Pt. 484) 680. What is binding as precedent in a decision is not the facts thereof but the principles of law enunciated or applied by the superior court, as experience has shown that there can hardly be two cases with the same facts. per. ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

H. A. O. ABIRU Justice of The Court of Appeal of Nigeria

O. A. ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. MADAM SARAH OSCAR
2. HAJIYA ZAINAB MUSA Appellant(s)

AND

MALLAM MANSUR ALIYU ISAH Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kaduna State, holden at Kaduna delivered on 28/7/2006 in Suit No. KDH/KAD/498/2003 commenced by one Mallam Aliyu Isah as the Plaintiff against the two appellants as the defendants and for the reliefs endorsed on the writ of summons filed on 18/7/2003 and averred in paragraph 8 of the statement of claim filed on 17/10/03 as follows:-
1. A DECLARATION that by virtue of an agreement dated September 14, 2002 the first defendant transferred to the Plaintiff, all her interests, rights and titles in the one and a half rooms in the property known and situate at No. 22 Yanbanga Road, Ungwar Shanu, Kaduna for valuable consideration.
2. A DECLARATION that the action of the first defendant in purportedly selling or transferring the said rooms to the second defendant in November 2002 was illegal, null, void and of no effect.
3. AN ORDER setting aside the purported sale of the said rooms by the first defendant to the second defendant.
4. AN ORDER for perpetual injunction restraining the defendants, their servants, agents and or privies and/or any person acting with or on their direction or authority in any way or manner what so ever from enforcing the said judgment against the Plaintiff by entering or in any way taking possession or laying any claim to the said rooms or any portion of it.

The defendants (who are now appellants) filed an Amended Joint Statement of Defence and Counter Claim and in paragraph 10 thereof they sought the following by way of counterclaim:-
a. 1st Defendant counter claim for her legal expenses in the sum of N80,000.00 (Eighty Thousand Naira) and
b. N120,000.00 as damages for loss of earnings.
c. The 2nd Defendant counter claim for a sum of N25,000.00 (Twenty five thousand Naira) as damages for incurring legal expenses.

After hearing the parties and their witnesses as well as addresses by their counsel, High Court of Kaduna State (now called the trial Court) granted the reliefs sought by the respondent and dismissed the counter claim of the appellants thus prompting this appeal which was commenced by the Notice of Appeal dated 29/7/2006 with 5 grounds of appeal, and in the Amended Appellants’ Brief of Argument settled by Tajudeen Oladoja, Esq. and filed on 2/7/13, the following issues were formulated for determination;
1. Whether having regard to the respondents’ state of pleading and the evidence adduced in support thereof, it was proper for the trial court to have held that the respondent proved his case against the appellants.
2. Whether the trial court properly evaluated the facts pleaded by the 1st Appellant and the evidence adduced in support thereof in relation to the issue of duress properly raised before it as regards Exhibit B before it concluded that the 1st Appellant was not under any duress when she signed the same.
3. Whether having regard to the facts and ratio decidendi of the case of MBA PAREGH BIYO v. MRS. VICTORIA AKU [1996] 1 NWLR (5) (Pt. 422) PAGE 1, it was proper in law for the trial Court to have relied heavily on same to decree in favour of the respondent.

The Respondents’ Amended Brief of Argument settled by Mas’ud Alabelewe Esq. of Counsel was filed on 21/8/13 with the following issues set down for determination;
1. Whether by virtue of the evidence on record as well as exhibits A & B, there is a valid and enforceable contract of sale made between the first appellant and the respondent.
2. Whether the first appellant legally proved duress in respect of exhibit B before the lower court.

The present respondent Mallam Mansur Aliyu Isah was by the order of this court substituted for Mallam Aliyu Isah the plaintiff at the trial Court who was reported to have died on 16th March, 2012.
At the hearing of the appeal, the parties were represented by their respective learned counsel who adopted the briefs of argument filed. The Appellants’ Counsel, Tajudeen Oladoja Esq. urged the court to allow the appeal while Mas’ud Alabelewe Esq. for the respondent urged that the appeal be dismissed.

I find that the two issues distilled by the respondent are within the issues formulated by the appellants which are more encompassing in the light of the grounds of appeal. This appeal will be determined upon the three issues set down by the appellants.
On the first issue which is whether it was proper for the trial court to have held that the respondent proved his case, the appellant submitted that cases initiated by writ of summons are fought on the basis of the pleadings and evidence, therefore any evidence led on unpleaded fact goes to no issue, citing ANYAWU V. IWUCHUKWU [2000] 15 NWLR (Pt. 692) 721. It was submitted also that a litigant must be consistent with his case; GBADAMOSI V. KABO TRAVELS LTD. (2008) 8 NWLR [Pt. 668] 243. The learned counsel submitted that by virtue of Order 24 Rule 3(2) of Kaduna State High Court (Civil Procedure) Rules 1987 (then applicable), it was necessary for the respondents to file and serve a Reply to the appellants’ amended statement of defence and counter claim; A.C.B. V. EAGLE SUPER PACK NIG. LTD. (1995) 2 NWLR (Pt. 379) 590; MAKANJUOLA V. AJOLORE (2000) FWLR (Pt. 8) 1328 were cited.

It was submitted that the two ways to rightly sell, validly acquire and legally transfer land in Nigeria are under customary law with each having its own peculiarities that must be complied with and so the nature of the sale transaction must be pleaded clearly; FOLARIN V. DUROJAYE (1988) 1 NWLR (Pt. 70) 351; ADEDEJI V. OLOSO [2007] 5 NWLR [Pt. 310] 325; BURAIMOH VS. KARIMU (1999) 9 NWLR (Pt. 618) 310.

The appellant contended that the respondent’s pleadings and the evidence in support thereof did not contain all the ingredients of transfer of title to land under English law as well as under custom having failed to state the names of those that were present at the sale and should not have been allowed to adduce evidence in that regard while the court should not have given weight to such evidence.

The learned counsel argued that following the judgment of the trial court in the instant case, there are now in existence two judgments of the High Court of Kaduna State on the same subject matter as there was in existence a subsisting judgment of the same High Court which judgments are conflicting. It was submitted that it was wrong for the learned judge to have relied on evidence elicited under cross examination by the respondent in giving judgment in his favour as evidence of facts elicited during cross examination which are not in the pleadings should not be admitted by court; KAYODE V. ODUTOLA [2001] 10 NWLR (Pt. 725) 659. SPDC NIG. LTD. V. AMARO [2001] 10 NWLR (Pt. 675) 248.

The Respondent’s counsel submitted that based on the facts placed before the Court and exhibit A as well as the amount of N20,000.00 collected as part payment from the respondent, a contract of sale had been made between the 1st appellant and the respondent whereby the 1st appellant had ceased to have title over the property sold; MBA PAREGH BIYO V. MRS. VICTORIA AKU [1996] 1 NWLR (Pt. 422) 1; MNGUNENGEN GEGE V. VERONICA NANDE (2006) 10 NWLR [Pt. 988] 256; MINI LODGE LTD. V. NGEI (2009) 12 SC (Pt. 1) 94. The only remedy available to the 1st appellant was to file an action for payment of her outstanding balance and not to sell the same property to another person i.e. the 2nd appellant as no one can legally sell or transfer title in the property which he does not own; ALHAJI ABDUL WAHAB ODEKILEKUN V. HASSAN [1997] 12 SCNJ 114; WAKAMA V. KALIO (1991) 8 NWLR (Pt. 207) 123 and EBUEKU V. AMOLA [1988] 2 NWLR [PT. 75] 128.

It was submitted that the aim of pleadings is to set out the facts upon which parties rely for their case, and therefore pleadings must contain only such facts on which the parties rely, so concisely stated that the opponent will know the case he has to meet, OBIJURU V. OZIMS [1985] 2 NWLR (Pt. 6) 167; UNION BANK LTD. V. OGBOH (1995) 2 NWLR [Pt. 380] 647; ACB PLC. V. NWANNA TRADING STORES (NIG.) LTD. (2007) 1 NWLR [Pt. 1016] 596.

It was submitted that a plaintiff is entitled to rely on the pleadings and evidence of the defendant where facts therein constitute valid admission and support the plaintiff’s claim as in the instant case where the appellants had admitted the Respondent’s claim; IYERE V. BENDEL FEED AND FLOUR MILL LTD. [2008] 18 NWLR [Pt. 1119] 300; NTUKS V. NIGERIAN PORTS AUTHORITY (2007) 13 NWLR (Pt. 1051) 392; ADEPEJU ODUNSI v. BAMGBALA [1995] 1 NWLR (Pt. 374) 641; COBRA LTD. & FRANCIE IFIE V. OMOLE ESTATE & INVESTMENTS LTD. [2000] 5 NWLR (Pt. 655) 1; OUR LINE LTD. V. S.C.C NIG. LTD. (2009) 17 NWLR [PT. 1170] 382. The law as in Section 123 of Evidence Act 2011 is that facts admitted need not be proved.
On the respondent not filing a reply to statement of defence and counter claim, it was contended that the statement of defence and counter claim in the instant case being an admission of the claim itself contains nothing to reply to; POTTER BABUP V. KOLO (1993) 9 NWLR [Pt. 317] 254.

On the contention of the appellants’ counsel that the nature of the transaction between the 1st appellant and the respondent must be one conducted under native law and custom, respondent’s counsel argued that this has been misconceived relying on the decision in HONOURABLE COMMISSIONER FOR LAND & HOUSING KWARA STATE v. MALLAM JIMOH ATANDA [2007] NWLR (Pt. 1018) 360 (incomplete) and that the real issue is that there was a transaction between the 1st appellant and the respondent, in respect of a property known to both parties, and not the nature of the transaction.

It was submitted that where parties have reduced the terms of their transaction into writing, extrinsic facts are not admissible to vary the terms of that document or to contradict the terms; UNOIN BANK OF NIGERIA V. OZIGI (1994) 3 NWLR [Pt. 333] 385. According to learned counsel, Exhibit A, a document that was admitted by the appellants both in the pleadings and evidence has shown the transaction between the parties thereto and satisfies the requirements stated by appellant’s counsel.

On whether the court could rely on evidence elicited from appellants’ witnesses under cross examination, the respondent’s counsel referred to Section 215 (2) of the Evidence Act 2011 and the cases of GAJI V. PAYE [2003] 30 WRN 144; INEC V. IFEANYI (2010) 1 NWLR (Pt. 1174) to submit that there is nothing wrong with the use of valid and relevant facts elicited in the course of appellant’s testimony under cross examination.
The consideration and determination of this issue must necessarily involve the examination of the pleadings of the parties and the evidence adduced thereon at the trial. The material portion of the plaintiff’s (Respondent) statement of claim are paragraphs 4, 5, 6 and 7 thereof as follows:
“4. The plaintiff avers that by virtue of an agreement dated August 8, 2002, and made between the plaintiff and the defendant, the latter transferred to the plaintiff all her rights, title and interest in a room within the property known as No. 22, Yanbanga Road, Ungwar Shanu, Kaduna for valuable consideration.
5. The plaintiff also subsequently negotiated and paid for the remaining one and a parlor in the same premises.
6. By virtue of an agreement dated September 14, 2002, the first defendant transferred to the plaintiff, all her interest, rights and titles in the one and a half rooms in the property known and situate at No. 22, Yanbanga Road, Ungwar Shanu, Kaduna for valuable consideration.
7. The first defendant after the transaction between her and the plaintiff purportedly sold or transferred the said rooms to the second defendant in November 2002”.

In the Amended Joint Statement of Defence and Counter Claim of the appellants, it was averred that the 1st defendant denied the above paragraphs of the statement of claim but went ahead to state that;
“5. In further answer and denial to paragraphs 3, 4, 5, 6, 7 and 8 (a) – (d) of the Plaintiff’s Statement of Claim the 1st Defendant shall contend at the trial as follows; viz.
(a) That on 14/9/2002, she has an inconclusive agreement with the Plaintiff when she needed a sum of N20,000.00 (Twenty Thousand Naira) to sell her House to him for a sum of N70,000.00 (Seventy Thousand Naira) and when the part – payment of N20,000.00 was paid in the presence of witnesses namely (1) Mallam Mohammed Liman and (2) Mallam Muntari. The said inconclusive agreement was reduced into writing and the original was given to the Plaintiff and she retained the photocopy. The 1st Defendant shall place reliance on the said agreement at the trial and the plaintiff is hereby given notice to produce it.
(b) That thereafter they agreed that the said house would be sold to the plaintiff in the sum of N74,000,00 (Seventy Four Thousand Naira) and it was perfectly understood and agreed by the parties that the remaining balance of N54,000.00 would be paid on or before the 30th of September, 2002.
(c) That as a result of the plaintiff’s inability to pay the balance of N50,000.00 to her on or before the end of September, 2002 she decided to sell the two rooms to the 2nd Defendant sometime in November, 2002 in the sum of N77,000 (Seventy Seven Thousand Naira) …”
i. That sometime in November, 2002 the plaintiff informed her brother named Paul Oscar about what happened to the purported sale transaction and her brother in turn invited her uncle named Mathew Yahaya and her Cousin named Rallah together with her mother for a meeting.
ii. That at the meeting mentioned in the preceding sub-paragraph the plaintiff dropped the much awaited balance of N54,000.00 against her wish and she was compelled to sign a new memo to the effect that she has sold the said rooms to the plaintiff and which memo was back dated to September, 2002.
6. The 1st Defendant shall contend at the trial of this suit that the plaintiff is not in anyway entitled to any declaration from the Honourable Court in respect of disputed rooms as there was incomplete customary sale between her and the plaintiff”.

It is also trite that the parties as well as the court are bound by the pleadings in the case and are not allowed to present a case out side or at variance with the pleadings. See BUHARI V. OBASANJO (2005) 13 NWLR (Pt. 94) 1; E.D. TSOKWA & SONS CO. LTD v. UBN LTD (1996) 10 NWLR (Pt. 478) 281; MAKINDE V. AKINWALE (2000) 1 SC 89; therefore evidence led on facts not pleaded will go to no issue; AKEREDOLU V. AKINREMI [1989] 3 NWLR (Pt. 108) 164; OKOLO v. DAKOLO [2006] ALL FWLR (Pt. 336) 201; OHIAERI V. AKABUEZE (1992) 2 NWLR (Pt. 221) 1; ALLIED BANK (NIG) LTD V. AKUBUEZE (1997) 6 NWLR [Pt. 509] 374.

The parties in the instant case agreed in the pleadings stated earlier that their agreement in respect of the sale of one room and half by the 1st appellant to the respondent was reduced into writing. Testifying to this effect in his evidence in Chief at pages 40 – 41 of the record of appeal, Aliyu Isah, the PW1 said “we made the agreement for the sale of the rooms on the 14th September, 2002… I have a written agreement (note) which she wrote herself. I can identify the note through my signature and the signature of my witness and her witness, the note was made on 14th of September, 2002.” The “note” was tendered without objection and admitted as exhibit A. The PW1 testified further and tendered another agreement as exhibit B also without objection. On exhibit B he said “The said Sarah wrote the agreement herself and signed and gave it to her uncle to sign and her sister, so she was not forced to sign the agreement. I can identity the agreement though the document was signed on the 14th September, I signed the document”.
Explaining under cross examination, the PW1 said “it was in the morning when exhibit A was signed she wrote the agreement…
Exhibit B was made after the payment. I know the date it was made on the 14th September, 2002”.
The preparation and execution of exhibits A and B were witnessed by the PW2 and PW3, the plaintiff’s witnesses.

On the part of the 1st appellant who was the DW1, she said in her evidence in Chief at page 56 of the record of appeal that;
“On 14th September, 2002, I was in need of money. I then called the attention of the plaintiff if he wanted to buy another room. He said yes. We made an agreement but not concluded. The agreement was that he would buy the room at N70,000. The agreement was put to writing. This is the agreement exhibit A”. Speaking further, the witness said on page 59. ” I am aware of exhibit B. It is my hand writing but I was not the one that wrote the date i.e. 14th/9/2002. I was forced to write that agreement in December, but I can’t remember the date”.

It is a general rule of law that once the parties have reduced the terms of their agreement into writing, it is the written document that guides their relationship and no extrinsic evidence is admissible to alter, or vary that document either by adding to, or subtracting from the terms of that agreement. See KOIKI V. MAGNUSSON (1999) 8 NWLR (Pt. 615) 492; OLANLEGE V. AFRO CONTINENTAL NIGERIA LTD. [1996] 7 SCNJ 145.
The appellant and the 1st respondent reduced their transaction into written agreements tendered as exhibit A and B, both of which were admittedly written by the 1st appellant and as copied on pages 86 and 87 of the record respectively, the content of both documents are clear, simple and unambiguous that they require no extrinsic or other oral evidence to interpret them; ROYAL EXCHANGE INDUSTRIES LTD. VS. ASWANI ILE INDUSTRIES LTD. (1991) 2 NWLR (Pt. 176) 639.

It is noted that the 1st appellant had asserted that she was compelled to sign the document tendered as exhibit B, but the compelling factors or the facts of this assertion are not proved by evidence. It is elementary that in civil cases, the person who asserts bears the burden of proving that which he asserts. See AMECHI v. INEC [2008] ALL FWLR (Pt. 407) 1; DAODU v. NNPC [1998] 2 NWLR [Pt. 538] 355; FASHANU v. ADEKOYA (1974) 6 SC 83. There being no concrete evidence on this fact of the 1st appellant being forced or compelled to write exhibit B or that somebody else fixed the date, that assertion fails and exhibit B remains a valid document.

The agreements in the instant case, i.e. exhibits A and B complement each other and show unequivocally that Sarah Oscar the 1st (appellant) defendant received the balance of the sum of N70,000.00 from Mallam Aliyu the (respondent) plaintiff with addition of N4,000.00 after an initial part payment of N20,000.00 for the property that belonged to Sarah Oscar.
There were witnesses to both exhibits A and B while exhibit B was dated 14th September, 2002.

The facts of the transaction between the 1st appellant and the respondent as evidenced by the written agreement between them show that the 1st appellant sold the one and a half rooms to the respondent thereby rendering the argument of counsel as to whether the sale was under customary law or received English law quite inconsequential.

On the materiality of the evidence elicited by one party under cross examination of the witness of the adversary, it is the law that such evidence where it goes to support the case of the party cross examining constitutes evidence on which he can rely in proving his own case. See AKOMOLAFE V. GUARDIAN PRESS LTD. [2010] VOL. 1 [Pt. 1] MJSC 93. In view of the foregoing, I share the view of the learned trial judge based on the facts of this case that the sale of the property in issue was completed between the respondent and the 1st appellant, and the sale of the same property by the 1st appellant to the 2nd appellant was wrong in law. I am in agreement with the trial court that the respondent proved his claim at the trial.
I resolve this issue against the appellants

On the second issue the appellants contended that the 1st appellant pleaded and testified that she was forced to write and sign exhibit B, but the respondent did not file a Reply to challenge or contradict that assertion; OMO V. JSC DELTA STATE (2003) 12 NWLR (Pt. 682) 444; ADEJUMO V. AYANTEGBE [1989] 3 NWLR [Pt. 110] 417, and that any evidence which is not challenged or contradicted by pleadings or cross examination is deemed admitted and needs no further proof; UBN V. GOVT. ANAMBRA STATE (2001) 12 NWLR (Pt. 726) 155.
The Respondents contended that the 1st appellant is required to move beyond the allegation that she was forced to sign exhibit B, and call witnesses on that fact, or give reason for not calling such witnesses; otherwise the presumption under Section 167 (d) of Evidence Act will apply; EPHIMIN V. OKON [1996] 2 NWLR (Pt. 432) 595.

On what amounts to duress, the case of OILSERV LTD. V. L.A. IBEANU & CO. NIG. LTD. [2008] 2 NWLR (Pt. 1070) 191 was referred to by learned counsel who argued that from the facts of this case, no duress has been established.
The crux of the complaint in this second issue is the failure of the plaintiff now respondent to file Reply to both the Statement of Defence and the Counter Claim of the appellants so as to challenge or contradict statement of defence on which evidence was predicated.

I have indeed earlier in this judgment found that the parties had mutually accepted the existence of written documents in respect of their transaction which documents remain binding on them and admit of no extraneous facts to in any way vary, alter or adjust the content thereof, which is the purpose the other facts in the statement of defence are meant to serve; and the only purpose of filing a Reply to that Statement of defence would have been to deny the allegations in the statement of defence since the respondent raised no new issues. The law is that a plaintiff may not file a Reply to a statement of defence where the only intention therefore is to deny allegations made by the defendant in the statement of defence. See OBOT V. CBN (1993) 3 NWLR [Pt. 310] 140; OLUKOLE V. KASIMU [1973] 4 SC 113; ONYEAKAONWU v. EKWUBIVI (1966) 1 ALL NLR 32.

In respect of the counter claim, the law is trite that a counter claim is a separate and independent action which has been brought by a defendant in the same action commenced by the plaintiff. OGBONNA V. A.G. IMO STATE [1992] 1 NWLR (Pt. 220) 647; GOWON V. IKE-OKONGWU (2003) 6 NWLR [Pt. 815] 38.

A plaintiff in an action in which the defendant files a counter claim has a duty to file a Reply to the counter claim, otherwise he may be presumed to have no defence to the counterclaim. The position of the law is however that where the counter claim has not raised fresh issue, and the issues in the counter claim are already covered by the statement of claim, a reply becomes unnecessary. The position is also that the failure to file a reply to counter claim does not give automatic success to the counterclaim as the defendant must prove the counterclaim on the preponderance of evidence to succeed.
The precise position of the law where the plaintiff fails to file a reply to counterclaim was stated by the Supreme Court in USMAN V. GARKE [2003] FWLR (Pt. 177) 815 per TOBI JSC at page 836 as follows:
“A reply to a counter claim becomes necessary if the counter claim raises a fresh or new issue.
Where the counter claim has not raised a fresh or new issue, a reply is not necessary. In other words, where the issues raised in the counter claim are already covered by the statement of claim, a reply is otiose.
See EGESIMBA V. ONUZURUIKE [2002] FWLR (pt. 128) 1386, [2002] 15 NWLR (Pt. 791) 456.
There is still another aspect to the issue. It is this. A Counter-Claim does not automatically succeed merely because a reply was not filed. A counter-claim like the main claim or the plaintiff’s claim, must be proved on the balance of probability as any other civil matter, where the defendant failed to prove his counterclaim, his action stands dismissed and will be dismissed.”

The counterclaim in the instant case was predicated upon the sale of property to the second appellant by the 1st appellant after the same property had been sold to the respondent and the 1st appellant no more had the property to sell. The learned trial judge evaluated the evidence in respect of the counter claim, found that it lacked any substance and dismissed it.

The third issue raised and argued by the appellant is essentially that the learned trial judge relied on the authority of BIYU V. AKU (1996) 1 NWLR (PT. 422) 1 which is not on all fours with this case and urge this Court to place reliance on ODUSOGA V. RICKETT (1997) 1 NWLR (Pt. 511) 1.
The case of MBAPAREGH BIYO V. MRS. VICTORIA AKU [1996] 1 NWLR (Pt. 422) 1 was cited to the trial court by the learned counsel for the plaintiff now respondent in the course of his address, and the learned trial judge relied on the holding of the Court of Appeal at page 38 that;
“A contract of sale exists where there is a final and complete agreement of the parties on essential terms of the contract namely; the parties to the contract, the property to be sold, the consideration for the sale and the nature of the interest to be granted. Once there is agreement on these essential terms a contract of sale of land is made”.
By the popular doctrine of stare decisis which is the foundation for judicial precedent, a court subordinate in the judicial hierarchy is bound by the principle of law upon which a court that is higher in hierarchy has decided a case, and must apply that decision especially where the facts are similar to those in the case before the lower court. In NGWO V. MONYE (1970) LPELR 1991 (SC), the Supreme Court, per Coker JSC held that.
“As a matter of logic and sense, if the grounds upon which a decision is predicated are non existent and the decision had proceeded on the basis of their subsistence, the decision must be demonstrably wrong. Such a decision is however still binding on subordinate courts under the principle of stare decisis which is the foundation on which the consistency of our judicial decisions in this country is based”.
See also DALHATU V. TURAKI & ORS. [2003] 7 SC1; NEPA v. ONAH (1997) 1 NWLR (Pt. 484) 680.
What is binding as precedent in a decision is not the facts thereof but the principles of law enunciated or applied by the superior court, as experience has shown that there can hardly be two cases with the same facts.

I have had a calm study of the case of ODUSOGA V. RICKETTS [1997] 7 NWLR (Pt. 511) 1, wherein the claim of the respondent as plaintiff at the trial court was for a declaration, N1,000.00 damages and perpetual injunction. The claim was in respect of a portion of land sold by the administrators of the estate of one Babatunde Jemi – Alade to the respondent Mr. Ricketts in 1965; he paid part of the purchase price and failed to pay the balance but went into possession and surveyed the land while he developed a part thereof. In 1971, one Mr. S. O. ADENUGA went on the land but disclosed that he was on the land to supervise the building being constructed by Mrs. Asimowu Odusoga. The trial court found that the respondent was in possession of the land at the time the appellant entered therein and that the respondent who paid a part of the purchase price in 1965, did not pay the balance until 1976 while the land in dispute was conveyed to the 1st appellant in 1972 by Mrs. Ebun Bucknor. It was also found by the trial court that the deed of conveyance executed in favour of the respondent in 1976 by Mrs. Ebun Bucknor was ineffective to pass title in the land to the respondent in view of the earlier conveyance of that land which had divested the owner of the land of any title thereto so the 1st appellant had better title.

The decision of the trial judge was reversed on appeal, but on appeal to the Supreme Court, it was held inter-alia that where part-payment of the purchase price was made and the balance is tendered within the stipulated time, or in the absence of a stipulated time, within a reasonable time, the vendor cannot resile from the contract of sale. It was also held that where the deeds of conveyance are validly executed and come from the same source to transfer the interest in a property the first in time prevails or takes priority.

I had already agreed with the trial court in the instant case that by the combined reading of exhibits A and B, both dated 14/9/2002, the sale and transfer of the property in dispute had been completed thereby making any subsequent sale unlawful.

I cannot see how the case of ODUSOGA V. RICKETTS (Supra) has come to help the appellants who bought after transfer of the property to the respondent.
I resolve this issue against the appellants.
On the whole, I find no merit in this appeal which is consequently dismissed.
I award costs of N30,000.00 in favour of the respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Isaiah Olufemi Akeju JCA. His Lordship has ably and painstakingly considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions in the lead judgment. I have nothing to add.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the judgment of my learned brother, Isaiah O. Akeju, JCA. I also dismiss this appeal as lacking in merit and award costs of N30,000 in favour of the Respondent.

Appearances

Tajudeen O. Oladoja Esq.For Appellant

AND

Mas’ud Alabelewe Esq.For Respondent