MALAM ZUBAIRU BADAMASI v. ALHAJI SA’ADU BADAMASI
(2013)LCN/5963(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/K/328/2010
RATIO
PLEADINGS: A DOCUMENT DOES NOT NEED TO BE SPECIFICALLY PLEADED FOR IT TO BE RECEIVED IN EVIDENCE
Further, it is an established principle of law that a document does not need to be specifically pleaded for it to be received in evidence. It is sufficient if the facts upon which they could be based are pleaded.PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.
“The law is that a Court is expected in all proceedings before it, to admit and act only on the evidence which is admissible in law, and, so, if a Court should inadvertently admit inadmissible evidence, it has a duty, generally not to act upon it. It is also well established that where a document is not pleaded, but, upon the nature of the claim it may constitute evidence by which material facts are to be proved, such a document will be admitted in evidence not minding the fact that it was not pleaded.” Per ORJI-ABADUA, J.C.A.
“In Agwunedu & Ors v. Onwumere (1994) 1 NWLR Part 321 page 375, the Supreme Court, on the issue whether Exhibit ‘C’ therein is admissible in evidence as a document conferring interest in land despite its non-compliance with the Land Instrument Registration Law, held that; “From the wording of Exhibit ‘C’, it is evidence of sale of piece of a land, and from the proceedings, the document had been tendered in evidence simply to establish a fact which the parties have pleaded. It is not and cannot be instrument as defined in the Land Instrument Registration Law. Even if it was an estate contract and consequently an instrument registrable for the purposes of the Land Instrument Registration Law of Eastern Nigeria, since the purpose of producing it was only to establish that the transaction between the Respondent and Mbahaotu was for the redemption of a pledge, the document is admissible. See, also, Lamidi Fakoya v. Paul’s Church Shagamu (1966) 1 ALL NLR page 58. In the case of Joseph Babalola Oni & ors v. Samuel Arimoro (1973) NSCC 108 at 113 Fatai-Williams J.S.C. (as he then was) dealt with similar situation when this Court considered an appeal where the Western State Court of Appeal attacked the decision of Ibadan High Court on the admissibility of a purchase receipt for the land dispute, in that case. It was decided by this Court in holding that trial Court made improper use of document tendered (Exhibit E) by the defendants as purchase receipt of land in dispute and gave their reason thus: “With respect to the attack to the Western State Court of Appeal on the admissibility of the document (Ex. ‘E’) and the use made by the learned trial judge of its contents, we will do no more than to refer to the observation of Farewell, L.J. in South Eastern Railway Co. v. Associated South Eastern Railway Co. v. Associated Ch. 12 which reads:- “But the fact that there is some connection with or reference to land does not make a personal contract by any less a personal contract binding on him, with all the remedies arising thereout, unless the Court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only. This observation was referred to with approval in Fakoya v. St. Paul’s Church, Shagamu (1955) 1 ALL NLR 74 at page 80 where Brett, J.S.C. who delivered the judgment of the Court observe as follows:-The personal obligations created by a contract for sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered.” Per ORJI-ABADUA,J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
MALAM ZUBAIRU BADAMASI Appellant(s)
AND
ALHAJI SA’ADU BADAMASI Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A.(Delivering the Leading Judgment): The Respondent instituted an action against the Appellant before the High Court of Kano State in suit No. K/416/2005. In his Statement of Claim dated 7/7/2005, he sought for five reliefs against the Appellant thus:
“1. A declaration that the Plaintiff is the rightful owner of a House consisting of 3 bedrooms, a kitchen and a toilet/bathroom known as Gidan Gabas in Kwaji Quarters, Kano.
2. A declaration that the defendant is a mere licensee of the said House known as Gidan Gabas belonging to the plaintiff.
3. A mandatory order of this Honourable Court compelling the Defendant to deliver up the possession of the said House known as Gidan Gabas in Kawaji Quarters, Kano consisting of 3 bedrooms, a kitchen and toilet/bathroom to the Plaintiff or ejecting the defendant from the said house.
4. A mandatory order of injunction restraining the defendant from disputing the title of the Plaintiff to the said house.
5. General Damages and the cost of this action.”
The Appellant as the Defendant filed a Statement of Defence in which he counter-claimed against the Respondent as follows:
“(i) A declaration that the Defendant is the rightful owner of the house known as Gidan Gabas situated at Kawaji Quarters consisting of three bedrooms, kitchen, toilet/bathroom apartment known as Gidan Gabas to the exclusion of Plaintiff and of any other person or persons.
(ii) An order of perpetual injunction restraining the Plaintiff by himself, his servants or agents from unnecessary harassments, intimidations of the defendant any further attempt to disturb Defendant ownership and peaceable possession of the house in question.
(iii) An order of perpetual injunction restraining the Plaintiff by himself, his agents or servants or otherwise howsoever from parading himself as the owner or title holder of the house known as Gidan Gabas Kawaji Quarters or any part thereof.
(iv) The sum of N350,000 as exemplary damages for the harassments and embarrassments caused to the Defendant by the Plaintiff as a result of his millions claim and the cost of defending this action.”
Upon receipt of the Appellant’s Statement of Defence and Counter-Claim the Respondent filed a Reply to the same as prescribed by the Rules of Kano State High Court. The matter proceeded to trial and the parties presented three witnesses each including themselves.
At the conclusion of the hearing and after address of respective Counsel for the parties, the trial Court found for the Respondent, awarded his reliefs and then dismissed the Counter-Claim of the Appellant. The Appellant was agitated by the judgment that he lodged this appeal against the same. The appeal was based on five grounds of appeal. Three issues were framed by the Appellant, Counsel out of the five grounds. They are:
“1. Whether from the evidence legally and properly admitted at the trial the Respondent has established his claim and whether the trial Court was correct to rely on Exhibits A, B and D.
2. Whether the Respondent’s evidence at the trial are not consistent with his claim as adumbrated in his Plaintiffs.
3. Whether on the evidence adduced at the trial, Appellant is not entitled to Judgment for his Counter-Claim and the decision of the Court below is not perverse.”
The rephrased issues for determination presented on behalf of the Respondent read thus:
“1. Whether the lower Court was not right in fact and in law when it entered Judgment in favour of the Plaintiff/Respondent and dismissed the Defendant/Appellant’s Counter-Claim having regards to the evidence adduced at the trial Court.
2. Whether the documentary evidence tendered by the Respondent and admitted as Exhibits A, B and D by the trial Court were not admissible in law in proof of the Plaintiff/Respondent’s claim (Ground 1).
3. Whether the trial Court was not right when it refused the Appellant’s counter-claim and dismissed same.”
With respect to issue No. 1, it was contended on behalf of the Appellant that Exhibit “A”, the root of P.W.1’s title was not pleaded at any paragraph of the Statement of Claim and as such, it ought not to have been admitted in evidence. Learned Counsel for the Appellant, S. A. Nasir Esq., then placed reliance on the decisions in Adenuga v. Ilesanmi Press (1991) 5 NWLR Part 189 page 82 at 95-96, Ayanwale v. Atanda (1988) 1 NWLR Part 58 page 22, Bamgboye v. University of Ilorin & Anor (1999) 5 SCNJ 295 at 324 lines 30-35, Egbue v. Araka (1988) 3 NWLR Part 84 page 598 at 609, Adenle v. Olude (2001) 9 SCNJ 94 at 109 lines 5-13; Messengers v. Nwachukwu (2004) 5 SCNJ 55 at 71 and 72 and Section 132 of the Evidence.
He submitted that where a document has been improperly received in evidence in the Court below, even when no objection has been raised, it is the duty of the Court of Appeal to reject it together with any facts or oral evidence on the same. He extended the same argument to Exhibits “D” and “E” which he contended were not pleaded as well nor were the oral evidence upon which they were based. He submitted that parties are bound by their pleadings and then urged that Exhibits “A”, “D” and “E” and the oral evidence adduced in support of them should be expunged from the record.
Counsel further argued that Exhibits “A”, “B” and “D” are not legally admissible evidence in accordance with the provisions of Sections 2, 5, 6, 8, 9, 10, 12 and 15 of the Land Registration Law, Laws of Kano State Cap.77 of 1989. He stated that the Respondent failed to produce evidence of registration of those documents, and in the absence of such proof, they were legally inadmissible. He, also, explained that their late father was an illiterate and as such Sections 8, 9, 9 and 12 of the Law require illiterate jurat which is lacking in Exhibit “A”. Counsel stressed that Section 15 forbade it being pleaded. He, then, persuaded this Court to expunge them as well as any oral evidence relating to them from the record.
He referred to A. O. Eghaobamien v. Mortgage Bank of Nigeria (2002) 7 SCNJ 190 at 195 lines 15 – 25. He argued that paragraphs 4, 5, 6 and 7 of the Statement of Claim are devoid of any facts relating to Exhibit “A” thereby depriving the Appellant the opportunity of knowing the exact nature of the Respondent’s case. The Respondent did not plead the root of his title. He only presented evidence on the distribution of estate of Late Alhaji Badamasi which is not the same as his claim for declaration of title. It was argued that the late Alhaji Badamasi was a Muslim and lived a typical Muslim life, therefore, Exhibit “A” ought to have complied with Islamic Law.
Learned Counsel further argued that the evidence of P.W.3 that the three rooms, one toilet and one kitchen in the property he bought from P.W.1 contrasted sharply the contents of Exhibit “A” at column 3 which states that Alhaji Ali Badamasi’s gift consists of four rooms and two parlours, two adjoining toilets, two kitchens and one store, all in the family compound at Kawaji Quarters, Kano. He pointed out that Exhibit “A” did not mention that the Appellant’s house was inclusive of the described property. He argued that by virtue of Section 132 of the Evidence Act, Exhibit “A” cannot be varied by oral evidence. He, also, stressed that there was no link between Exhibits “B”, “B1” and Exhibit “A”, that Exhibit “A” does not support the testimonies of the Respondent and his witnesses. He then queried where did P.W.1 derive the authority to sell the Appellant’s house to the Respondent. He further cited the case of Oguanzee v. the State (1998) 4 SCNJ 36 at 44 and urged this Court to hold that the Respondent completely failed to establish his claim and, then, answer issue No. 1 in the negative.
Arguing in respect of issue No. 2, learned Counsel contended that the Respondent abandoned his pleadings and set up a new claim at the trial. He referred to the evidence of inheritance and gift as contained in Exhibit “A’, together with the evidence of the different plot of land that is different from the land in the possession of the Appellant as shown in Exhibit “E”, he said that the land covered by Exhibit “E” is different from the land in dispute which is in the Appellant’s possession. He stated that the Respondent did not plead Plot No. 15B covered by Government Occupancy Permit dated 29/6/81 as the subject matter of his claim. The Respondent suddenly sprung up issues concerning the said Plot No. 158 and came up with Exhibit ‘E’. He tendered Exhibits “D” and “E” as the subject matter of his claim. On that basis, he completely abandoned his pleadings. He referred to paragraphs 5, 6, 7 and 8 and the reliefs sought by the Respondent and contended that they have no correlation with Plot No. 15B covered by Exhibit “E”, nor was Exhibit “D” mentioned in any paragraph of the Respondent’s pleading. He explained that the trial Court physically observed during its visit to locus in quo that the house where the Appellant live in is totally different not arising from Plot No. 15B covered by Exhibit “E”. Learned Counsel then referenced the cases of Jolayemi v. Alaoye (2004) 5 SCNJ 305 page 319; Alao v. Alao (1986) 5 NWLR part 45 page 802; Aguoacha v. Aguoacha (1986) 4 NWLR Part 37 page 565, Adekeye v. Akin – Olugbade (1987) 3 NWLR part 60 page 214, Adenle v. Olude (supra); Dere v. Ebwa (2006) 1 SCNJ 160 at 186; Ebueku v. Amola (1988) 2 NWLR Part 74 page 128; Rockonoh Property v. Nitel (2001) 7 SCNJ 225 at 252 – 253 and Uzukwu v. Ukachukwu (2004) 7 SCNJ 189 at 204 and submitted that a party is bound by his pleadings and cannot give evidence outside his pleaded facts, and where a party fails to give evidence in line with his pleadings, the unsupported pleaded facts remain abandoned and of no evidential value. He then urged this Court to dismiss the Respondent’s claim.
On issue No. 3, Learned Counsel relied on the decisions in the cases of Ewo v. Ani (2004) 11 SCNJ 272 at 280 – 282, Uka v. Iroho (2002) 7 SCNJ 137 at 160 – 161 Idundun v. Okumagba (1987) 1 NWLR 200 (without citing the Part); Kyari v. Alkali (2001) 5 SCNJ 421 at 447 and Akibu v. Azeez (2003) l SCNJ 393 at 408 and, then, set down the five ways in which ownership of land may be proved. He referred to the Appellant’s testimony and those of D.W.1 and D.W.2 in support of the Appellant’s counter-claim and then asserted that the Appellant has proved long possession and enjoyment of the Land. He argued that the Appellant has been in possession of the premises for over 26 years. He referred to the testimonies of P.W.1 at pages 15 lines 24-27, 16 lines 20-21, 26; P.W.2 at page 19 lines 4-7, 19 – 20, and, P.W.3 at page 21 lines 17-20. He stated there was no notice of revocation of the gift by the late Alhaji Badamasi, their late father, to the Appellant. He, also, referred to P.W.1’s evidence at page 27 lines 14 to the end, saying that the building was constructed in the presence of their late father. He argued that this comes within the second mode of proving ownership, that is, acts of person or persons claiming the land such as selling, leasing, renting out or farming on it. He built on the land and occupied it in the presence of the Donor. He argued that the testimony of D.W.1 is unimpeachable and was not debunked by the Respondent nor did he try to call the said Bala Makata he claimed was the builder.
Learned Counsel also mentioned the issue touching on the number of the rooms in the house, and stated that the evidence of P.W.1, P.W.2, and P.W.3, contradicted the Respondent’s pleading, this is to say, the house being four rooms as opposed to the three rooms, one toilet and one kitchen claimed by the Respondent. He referred to P.W.1’s testimony and the contents of Exhibit “A” regarding the purported gift to P.W.1, and, argued that there was no mention of the Appellant’s house. He further argued that the Respondent is relying on this purported gift to dispossess the Appellant of his house. He also contended that P.W.1’s root of title as far as the property is concerned is a total failure. He further argued that P.W.1 did not state his root of title on Exhibit ‘B’ nor has he acquired the same. He said that Exhibit ‘A’ does not support P.W.1’s assertions over the property. He submitted that the Respondent could not prove to the Court that he has a better title to the Court than the Appellant. He then urged this Court to answer issue No. 3 in the affirmative and hold that on the evidence adduced at the trial, the Appellant is entitled to judgment for his counter-claim. He then urged that this appeal be allowed and for the Court to set aside the judgment of the trial Court and in its stead enter judgment for the Appellant and dismissing the Respondent’s claim for being incompetent.
Submitting in respect of the Respondent’s issues, his learned Counsel, A. K. Maude, Esq., stated that on issue No.1, the Appellant in his Statement of Defence and counter-claim at paragraphs 5 and 17(1) described the house in dispute as consisting of three bedrooms, a kitchen and a toilet/bathroom, the same way it was described by the Respondent. He argued it was the Appellant who departed from his pleading while testifying when he said that the house has three rooms, a toilet and a kitchen, and that his late father built one room on the remaining piece of land, the additional room was built by Alhaji Haladu and one Baba Makata. Learned Counsel cited the cases of Okoko v. Dakolo (2005) All FWLR Part 201 page 219 paragraph D; Mohammed v. Klargester Nigeria Limited (2002) FWLR Part 127 page 1078 at 1092, Omoregbe v. Lawan (1980) 3-4 S.C. page 108 and N.B.C. v. Bargunole (1999) 2 NWLR Part 591 page 408 and submitted that evidence that is at variance with the averments in the pleadings goes to no issue and should be discountenanced by the Court. He further stated that the testimonies of P.W.1, P.W.2 and the Respondent as P.W.3 proved his averments at paragraphs 5, 6, and 7 of his Statement of Claim. He also referred to Exhibits ‘A’ and ‘B’ which were tendered through P.W.1 to prove their contentions. He argued that the evidence adduced by the Respondent in this respect was neither contradicted nor rebutted by the Appellant, and that being the case, the trial Court must act on it. He referred to the findings of the trial Court at pages 149-150 0f the record line 15 and stated that the trial court were right to have acted on it. He, therefore, urged this Court to resolve issue No. 1 in favour of the Respondent.
Arguing in respect of issue No. 2, the Respondent’s Counsel contended that only the facts the parties will rely upon at the trial need to be pleaded, and, not the evidence by which such facts are to be proved. He submitted that documents are evidence by which any facts are to be proved and therefore need not to be specifically pleaded. He referred to paragraphs 4, 5, 6, 7, and 10 of the Respondent’s Reply to the Appellants Statement of Defence and Counter-Claim, and then paragraphs 5, 5, and 7 of his Statement of Claim where the facts upon which Exhibits ‘A’, ‘B’, and ‘D’ were based were pleaded. He referred to pages 4 – 7 and 113 – 114 of the record of appeal and submitted that it is improper for the Appellant to have argued the way he did. He stated that Exhibits ‘A’, ‘B’ and ‘D’ are adequately covered by the pleadings of the Respondent and they were properly admitted by the trial Court. He also noted that the description of the house given by P.W.1 tallies with the description of the same in Exhibit ‘A’ against the name given to it by D.W.1. He, also, referred to page 15 lines 5-10 and lines 19 – 21 of the record where P.W.1 described where he sold to the Respondent and saying too, that the portion he sold to the Respondent and the part he is occupying is the same house. The evidence of P.W.2 at page 18 lines 3-8 of the record was made reference to, where he stated that P.W.1 divided his own share into two and sold part of it to the Respondent. He contended that by the evidence of P.W.1 and P.W.2, it is clear that P.W.1 divided his own share of the house he inherited from their late father, vide Exhibit ‘A’ and sold a portion to the Respondent while he still occupies the remaining portion. He also pointed out that the parties are ad idem on the name of the house, that it is known as ‘Gidan Gabas’. He further made reference to the trial Court’s observations at pages 149 to 150 of the record that the Appellant signed on Exhibit ‘A’ as a beneficiary of what is contained therein. He did not dispute the fact of him having signed it, he admitted he signed on it. Learned Counsel stated it is an established principle that what is admitted is settled and need no further proof. Counsel then relied on the decision in Union Bank of Nigeria Plc v. Fajebe Foods (1998) 6 NWLR Part 554 page 380 at 384 and urged this Court to hold that as a beneficiary of the contents of a document, he voluntarily executed, he should not be allowed to discredit the same document. He, also, remarked that the argument of the Appellant that their late father, Alhaji Badamasi died as Muslim is grossly misconceived in that it was never the case of the Appellant at the lower Court had no jurisdiction to apply Islamic law. He then urged this Court not to countenance the same, and, resolve issue No. 2 in favour of the Respondent.
With respect to issue No. 3, learned Counsel for the Respondent asserted that a Counter-Claimant must prove his counter-claim on the preponderance of evidence. He stated that a counter-claim is a separate action therefore, the counter-claimant has the same burden of proof as the plaintiff in his main claim. Counsel cited the case of Jegede v. Bamidele (2006) ALL FWLR Part 315 page 109 at 127 paragraphs G – F in support. Counsel reproduced the Appellant’s averments at paragraphs 2 and 4 of his Statement of Defence and Counter-Claim to the effect that all the members of his family had knowledge of the gift of the said property to him by their late father, yet, the Respondent failed to call any member of his family to support this assertion. He also referred to the trial Court’s finding at pages 149 – 150 that the Respondent did not place any evidence of gift of the said plot to him by their late father, that he did not call any member of his family or anybody at all to testify to that fact, and, then, urged this Court not to disturb the said finding moreso, where the Appellant did not appeal against it.
Learned Counsel turned to the contention of the Appellant that he had proved his ownership of the said property by acts of long possession and enjoyment of the land and submitted that the Appellant, by the trial Court’s findings, failed to prove his root of title to the plot of land upon which he allegedly built the house in dispute. He argued that since the Appellant did not appeal against the same, the Appellant occupied the house in dispute at the pleasure of their late father and had no title to the house. He also referred to P.W.1’s testimony at page 16 lines 20-21 and contended that the Appellant did not, in evidence, say that he built the house on the plot of land allegedly given to him by his late father when he got married. He urged this Court to hold that the Appellant wholly failed to proved his Counter-Claim.
Now considering the issues raised by the Appellant in this appeal, I think it prudent to consider the Appellant’s issues Nos. 1 and 2 together. The issue are firstly “whether from the evidence legally and properly admitted at the trial, the Respondent has established his claim and whether the trial Court was correct to rely on Exhibits A, B, and D?, and, secondly ‘whether the Respondent’s evidence at the trial are not consistent with his claim as adumbrated in his pleadings.
I may say in passing regarding the submission of Learned Counsel for the Respondent on Illiterate Protection Act, that it does not behove any other person to protest under the Illiterate Protection Law or Act. The illiterate Protection Law was made for the protection of Illiterate persons. It is the illiterate person that requires protection and he is the one who may seek the protection given by the law by complaining that the document prepared at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. The Act is a law to protect and safeguard the illiterates from being exploited. It is not a law to penalize them. Unfortunately, the father of the parties is now deceased, and no issue was raised in regard to that.
The Appellant strongly contended that Exhibits ‘A’, ‘B’, and ‘D’ were not in the least pleaded and that they contravened the provisions of sections 2, 5, 6, 8, 9, 10, 12 and 15 of the Land Registration Law, Laws of Kano State Cap. 77 of 1989. I must observe that the answer to this can only be discerned from the Respondent’s Statement of Claim, his Reply to the Appellant’s Statement of Defence and Counter-Claim, and, the oral evidence adduced by the Appellant and his witnesses at the trial.
Before dissecting the pleadings of the parties, it is pertinent to straighten out the position of the law on unpleaded documents. The law is that a Court is expected in all proceedings before it, to admit and act only on the evidence which is admissible in law, and, so, if a Court should inadvertently admit inadmissible evidence, it has a duty, generally not to act upon it. It is also well established that where a document is not pleaded, but, upon the nature of the claim it may constitute evidence by which material facts are to be proved, such a document will be admitted in evidence not minding the fact that it was not pleaded.
Further, it is an established principle of law that a document does not need to be specifically pleaded for it to be received in evidence. It is sufficient if the facts upon which they could be based are pleaded.
In the Respondent’s i.e., Plaintiff’s Reply to the counter-claim, it was averred at paragraphs 4 and 6 as follows:-
“4. The Plaintiff contrary to paragraph 17(d) of the counter-claim avers that the piece of land upon which the house in issue was built was also bought by their late father as a family land and but it was their late father that built the said house and allocated same to Alhaji Ali A. Badamasi from whom the Plaintiff bought the said house.
6. The Plaintiff in reply to paragraph 17(e) of the counter-claim states that the defendant did not built any house of his but the house in issue was build by their late father and same allocated to Alhaii Ali A. Badamasi from whom the Plaintiff bought same.”
Then, at paragraphs 5, 6 and 7 of the Respondent’s statement of claim, he asserted thus:
“5. The Plaintiff further states that he became the owner of the said house by virtue of sale Agreement between himself and Alhaji Ali A. Badamasi also a member of the same family with both himself and the defendant.
6. The Plaintiff also states that at the time of purchase of the said house from Alhaji Ali A. Badamasi, the defendant has always being (sic) in occupation of the said house.
7. The Plaintiff also says that he bought the said house from Alhaji Ali A. Badamasi in the presence of witnesses in the sum of N150,000.00 to the knowledge of the defendant. The Plaintiff at the trial will rely on both the Hausa and English versions of the said sale agreement between him and Alhaii Ali A. Badamasi.”
There is no second guessing that Exhibit ‘A’ was introduced and admitted at the juncture the Plaintiff’s first witness, i.e. P.W.1, who was wrongly described as P.W.5 at pages 14 and 15 of the record, was giving evidence in line with the averments at paragraphs 4 and 5 of the Respondent’s Reply to the Appellant’s Statement of Defence and Counter-Claim. P.W.1. said inter alia thus:
“The defendant is also of the same father with me there is a house of mine which I sold to Sa’ad Badamasi, the Plaintiff in this case which hr(sic) paid me in the sum of N150,000.00k. I sold the house to the Plaintiff in 1995. The house is situate in Kawaji the house consists of four rooms, two parlors, two toilet, two Kitchens and a store, the house is called Gidan Crullas. The house was given to me by my father in 1992. He gathered the seven of his male children and gave me the house in their presence. Each of the remaining six male children who (sic) also given a house each. Apart from the seven male children our father had nine female children. Each of the female was given a plot, I have evidence to shows (sic) that I was given the house by our father because it is documented and each one of us the children. Male and females signed on the paper. I can identify the document through my signature.”
This piece of evidence was also strengthened by the testimonies of P.W.1 and P.W.2. Then Exhibit ‘B’ was equally presented for admission in evidence through the Respondent himself when he was narrating to the trial Court how he acquired the property in dispute as demonstrated in his pleading, particularly, at paragraphs 4 and 7 of the Plaintiff’s Statement of Claim hereinbefore reproduced. The Respondent though, erroneously described as P.W.2 at page 21 of the record testified thus:
“My complaint against the defendant is in respect of a house I bought from Alhaji Ali Badamasi. P.W.1 which was given to him by our Late father Alhaji Badamasi. The house given to us by our father was divided among us, his children. There are three rooms, one toilet and one Kitchen in the property I bought from Alhaji Ali Badamasi. The house is located at Kawaji Gidan Gabas the defendant stayed in the property in dispute but it does not belong to me. He was living in the property before I purchased it. He lived in the house on instruction of our father. He was living in the house before the distribution by our late father.
There are seven of us males. The property was distributed among the seven males. The seven males include the defendant. When our father was alive he called us the seven of us and asked us if we can share the property among us which we answered in the affirmative, we distributed the property among us and reported to him, how we shared. He instructed us to put it in writing and bring it to him to sign and each one of us to sign as well, which was done our father had females and he gave them plot of land at the back of our house. The lots were also shared among the females. I can identify the document through my signature, that of our fathers and my brothers. (witness shown Exhibit “A” which he identified) the defendant is No. 6 in Exhibit “A” as having the share of his property. I have proof of purchase of share of Alhaji Ali Badamasi as there is a written agreement written in Hausa but translated into English languages.”(Underlining mine).
As could also be gleaned from the said oral evidence of P.W.3, it synchronized with the averments at paragraphs 5 and 7 of the Respondent’s Statement of Claim and 4 and 6 of his Reply to the Appellant’s Statement of Defence and Counter-Claim.
It is clear at paragraphs 4 and 5 of the Respondent’s Reply to the Appellant’s Statement of Defence and Counter-Claim and paragraph 5 of the Respondent’s Statement of Claim that facts were sufficiently set out therein which established the existence of Exhibits ‘A’ and ‘B’. The law is that facts must first be pleaded before documents are brought in or introduced to prove them. See Udonte v. Bassey (1999) 5 NWLR Part 554 page 510. Further, it is stated that only facts need to be pleaded and documents in support of those facts only constitute evidence and need not be specifically pleaded. Therefore, the Appellant’s argument on the point that Exhibits ‘A’ and ‘B’ were not pleaded are hereby not countenanced.
It should also be reminded that Exhibits ‘A’ and ‘B’ were tendered not to establish title but to prove that such transactions or statement of facts made therein actually existed, to establish evidence of purchase and the fact that P.W.1 indeed inherited the property from their late father before selling the same to the Respondent. In Dr. S. U. Isibor v. Mrs. Margaret Fakarode (2007) LPELR-CA/K/8/05, it was distinctly stated by this Court that there is an exception to the general law under which a registrable instrument which has not been registered is admissible in order to prove an equitable interest and payment of purchase or consideration.
In Agwunedu & Ors v. Onwumere (1994) 1 NWLR Part 321 page 375, the Supreme Court, on the issue whether Exhibit ‘C’ therein is admissible in evidence as a document conferring interest in land despite its non-compliance with the Land Instrument Registration Law, held that;
“From the wording of Exhibit ‘C’, it is evidence of sale of piece of a land, and from the proceedings, the document had been tendered in evidence simply to establish a fact which the parties have pleaded. It is not and cannot be instrument as defined in the Land Instrument Registration Law.
Even if it was an estate contract and consequently an instrument registrable for the purposes of the Land Instrument Registration Law of Eastern Nigeria, since the purpose of producing it was only to establish that the transaction between the Respondent and Mbahaotu was for the redemption of a pledge, the document is admissible. See, also, Lamidi Fakoya v. Paul’s Church Shagamu (1966) 1 ALL NLR page 58. In the case of Joseph Babalola Oni & ors v. Samuel Arimoro (1973) NSCC 108 at 113 Fatai-Williams J.S.C. (as he then was) dealt with similar situation when this Court considered an appeal where the Western State Court of Appeal attacked the decision of Ibadan High Court on the admissibility of a purchase receipt for the land dispute, in that case. It was decided by this Court in holding that trial Court made improper use of document tendered (Exhibit E) by the defendants as purchase receipt of land in dispute and gave their reason thus: “With respect to the attack to the Western State Court of Appeal on the admissibility of the document (Ex. ‘E’) and the use made by the learned trial judge of its contents, we will do no more than to refer to the observation of Farewell, L.J. in South Eastern Railway Co. v. Associated Portland Cement Manufacturers (1910) 1 Ch. 12 which reads:- “But the fact that there is some connection with or reference to land does not make a personal contract by any less a personal contract binding on him, with all the remedies arising thereout, unless the Court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only. This observation was referred to with approval in Fakoya v. St. Paul’s Church, Shagamu (1955) 1 ALL NLR 74 at page 80 where Brett, J.S.C. who delivered the judgment of the Court observe as follows:-The personal obligations created by a contract for sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered.
Third parties may on occasion enter into unprofitable negotiations but the register of instruments, affecting land does not purport to record the personal obligation of those who have interest in land, and the purchaser for value and without notice will have no less protection in consequence of our decision in this case than he had before.” (underlined by me).
The Respondent, as I earlier noted, called three witnesses including himself to establish his assertions both in his Statement of Claim and his Reply to the Appellant’s Statement of Defence and Counter-Claim.
P.W.1, who was typographically, described as ‘P.W.5’, at page 14 of the record of this appeal, and who gave his name as Alhaji Ali Badamasi, testified before the lower Court on 21/3/2007. He is a brother of full blood to the Plaintiff, i.e., the Respondent in this appeal. The Defendant, i.e., the Appellant in this appeal is his half brother. He narrated that in 1995 he sold the house described as Gidan Gabas and situated at Kawaji consisting of four rooms, two parlours. The toilets, two kitchens and a store. He said that that property was given to him as a gift by their father in the presence of all his father’s male children. They were seven in number and the rest six were equally given a house each by their late father. Then each of his father’s nine daughters was given a plot by their father. The entire gift inter-vivos were reduced to writing and witnessed by a document described as Deed of Gift dated 1992 made between Alhaji Mohammed Badamasi and Alhaji Garba Badamasi and 15 others. It was tendered as Exhibit ‘A’.
P.W.1 identified his name as Name No. 3 on Exhibit ‘A’. He also tendered as Exhibit ‘B’ the Sale Agreement dated 17/8/95 with which he, P.W.1, sold his said house, the subject matter of the suit to the Respondent. He stated that as at the time, he, P.W.1, sold the house to the Respondent, the Appellant was living in that particular house and it was the portion the Appellant was living in, that he sold to the Respondent, the Appellant was living in the house before their father gave the house to him, P.W.1 and he was still living therein when their father actually gave it to him.
Then, when the Respondent wanted to take possession of the portion comprising two rooms and one parlour, a toilet and bathroom together with a kitchen, which he sold to him, the Appellant refused to vacate the premises and claimed that the Respondent has given him that portion. P.W.1 identified the name of the Appellant on Exhibit ‘A’ as name No. 6. He, P. W. 1, summoned the members of his family to a meeting and in the presence of every one, he, P.W.1, requested the Appellant to vacate the said premises for the Respondent to whom he had sold the same.
In his cross-examination, P.W.1 stated that their father died in or about 1995. Their late father used to write in Arabic and he could write his name in Hausa but not in English. He acknowledged that their Ward Head did not sign Exhibit A, nor did their neighbour Un Iman, Basiru Abdullah, their late father’s trusted friend, Alhaji Garba Barau. He explained that it was when the defendant got married that he moved into the premises in dispute.
He explained that the house in question was built by their elder brother. He was in School when the houses were built. Their Late father was survived by two wives, Hajiya Kande and Hajia Rabi but their names were not on Exhibit ‘A’.
P.W.2, one Garba Badamasi, aged 65 testified in favour of the Respondent. He said they are brothers. He repeated how their late father made to them gifts inter-vivos. He shared the properties to all his seven male children and his daughters. He said that after the sharing, P.W.1 sold a portion, i.e.,about half of his own share to the Plaintiff Alhaji Sa’adu. He explained that the portion sold by P.W.1 to the Respondent is where the Appellant resides in. When he asked the Appellant why he was living in the place, he said that the Respondent bought that portion for him. Then he asked him to produce any documentary evidence to prove that, but, he could not, and he, P.W.2, personally ordered the Appellant to leave the property for the Respondent. He, later, invited two of them and tried to mediate. After listening to them, he advised the Appellant to leave the property for the Respondent and move to his own share but he did not heed his advice. He boasted he would remain in the house till the end of this life. He refuted what the Appellant said at Paragraph 6 of his Statement of Defence that he bought the land in dispute with his money. P.W.2 confirmed he was the one who used to build houses on their father’s instruction and that anyone who is getting married is given a section to live in. In his cross-examination he explained that their father died in 1997. He said that the sharing was between their father and them, and, no outsider was involved.
The Respondent testified as P.W.3, but, again was erroneously described as P.W. 2, at page 21 of the record. He explained that he, P.W.3, bought the house in question from P.W.1. The house was given to P.W.1 by their late father, Alhaji Badamasi. He said that the house comprises three rooms, one toilet and one kitchen. It is located at Kawaji Gidan Gabas. He said that the Appellant was living in the house before he purchased it on the instruction of their late father. He was living in the house before the distribution by their late father. He confirmed the testimonies of P.W.1 and P.W.2 on how their Late father made gift inter-vivos to them including their sisters which they all signed. He identified Exhibit ‘A’ and pointed out that the Appellant was No. 6 on the document as having his share of the properties distributed. He also identified Exhibit ‘B’ which was the Land Sale Agreement between him and P.W.1 for the sale of the property in dispute to him by P.W.1. He equally identified the translated English version of Exhibit ‘B’. The English version was also admitted in evidence as Exhibit ‘B’. He tendered Exhibit ‘C’ being the Notice he instructed his Solicitor to issue to the Appellant after he had refused to vacate the premises following his verbal demand/request. He then gave him six months Notice to quit, he did not quit and pleaded that more time be given to him, which he obliged him with, still he refused to yield up possession of the house to him. P.W.3 tendered Exhibit ‘E’ over the issue of the land not being called Goma Bayan Gida as asserted by the Appellant. He denied that the Appellant built the house in question with his money.
Under cross-examination, P.W.3 said he could not write and read in English as at the time their father asked them to share the property. He had his own house before the distribution. It was given to him by his late father. He further said that their father was not present when they shared the property, that they shared the properties by themselves. The Appellant was living in the house in dispute at the time of sharing. He further explained that at time, where he, P.W.3 was living in, fell into his share, the same thing with P.W.1’s, but, the Appellant’s own did not fall into his own share. He said that Alhaji Badamasi signed for Alhaji Tijjani in Exhibit ‘A’. He explained that everything that is contained in Exhibit ‘A’ was done during the life time of their late father. He said that it was Bala and Haladu who were his bricklayers. The Appellant’s house is built with bricks whereas that of P.W.1 is built with mud.
In the aforementioned cases, the documents therein were registrable but were held admissible because they were not tendered as “instruments affecting Land” but as evidence of an agreement or request for specific performance. In the case in hand, the documents shows a simple customary agreement over the sale of a piece of land. It does not therefore fall within the definition of an instrument for the purpose of the Land Instrument Registration Law. See Olayede Akingbade v. Oyeyipo Elemosho (1964) ALL NLR-146 per. Mohammed, J.S.C. page 18-20, paragraphs A-B.
As I had earlier noted, Exhibits ‘A’ and ‘B’ were received in evidence by the trial Court for the purposes of showing that there was an act of gift of the said property in question by the late father of the parties in this suit to P.W.1, and, that, the Respondent did purchase the said property from the brother, i.e. P.W.1 to whom the gift was made by their late father. These facts were pleaded by them and the Exhibits, to my mind, were tendered to establish these facts.
Further, on the argument of the Appellant that Exhibit D was not pleaded, it has to be pointed out that the Appellant himself pleaded at paragraph 3 of his Statement of Defence and Counter-claim thus:
“3. The Defendant further avers that he derives his title over the said house through his Late father Alhaji Badamasi who was using the place as part of a farm land situated behind the family house and know as “Goner Boyan Gide”, who at the request of the defendant allocated a plot from the said farm measuring about 50 feet by 28 feet for the defendant to build up and settle there with his family.”
To counter these assertions during his evidence in Chief, P.W.3, i.e., the Respondent said thus:
“It is not true our late father give(sic) to the defendant an empty plot of land called Goran Bayan Gida, “What is meant by Goran Bayan Gida is a farm at the back of our house and our house is not within the farm and our late father could not have given same to the defendant our father bought a plot from Musa Sule who also inherited from his father Hamidu Sule which is the one, the defendant is claiming, I have the rules agreement and a document in respect of the plot”
I must say I find the arguments of the Appellant’s Counsel really absurd given the pleadings of the parties and the viva voce evidence adduced by them before the trial Court. The trial Court, to my mind, was therefore right to have relied on Exhibits ‘A’, ‘B’, and ‘D’ during the evaluation of the evidence proffered in the proceedings before it. The evidence adduced by the Respondent appears to be cogent and consistent with his pleading and in this regard, I hereby resolved issues 1 and 2 against the Appellant.
Dealing with issue No. 3, it may be prudent to scrutinize the evidence led before the lower Court by the Appellant. He presented three witnesses in that regard.
D.W.1 – Alhaji Haladu Yusuf who identified himself as a bricklayer said he was employed to build the house in question by the Appellant. He did not know anything about the house, he was only engaged by the Appellant to build the house for him, he then built it.
When cross-examined, D.W.1 said he could not remember the year he built the house, that it was over fifteen years. He said he was the only one together with his labourers that built the house, He said there was a room near the house which he built with Bala. D.W.1 also stated that there was no building on the land when he built that house for the Appellant. He said he built a room and parlour with a toilet and a kitchen.
One Kabiru Mansur Yakasai, a staff of the Ministry of Land and Physical planning Kano, a Chief Land Officer with the Ministry who had put in 33 years in the job, testified as P.W.2 and said his Ministry had record of Exhibit ‘E’. He stated that the Plot of land in that Exhibit ‘E’ is situate at Dakata and is known as Plot No. 15B. He was subpoenaed to produce a copy of the survey plan of the portion of the entire area. The said plan was rejected and marked “tendered and rejected”. The subpoena was received in evidence as Exhibit ‘F’, D.W.2 identified Exhibit ‘E’ as Occupancy permit in respect of Dakata. He said he will be able to identify the plot, that it is not the same as the property in dispute.
During his cross-examination, D.W.2 admitted he is not a Licensed Surveyor and he is not in the Survey Department of the Ministry of Lands, he had never cited the land in dispute until that day.
The Appellant gave evidence as D.W.3. He said he acquired the house when his father gave him an empty land which he built upon. He then engaged the services of D.W.1 to build the house for him. He built the house with his money. It is a two bedroom house with toilet and kitchen. He said that his father later built one room on the remaining space of the land. The kitchen room was built for his father by D.W.1 and one Bala Dakata. He has been living in the house for over 26 years. He denied that his father built the house through Garba Badamasi. He also denied that his father gave the house to Ali Badamasi, P.W.1. He said that since he lived in the house, his father never gave out the house. He debunked the assertion of his admission that the house belonged to the Respondent during their family meeting. He pleaded with the Court to grant his reliefs in the counter claim. He alleged that when their father was seriously ill, the Respondent and Alhaji Garba Badamasi shared their father’s properties and gave him Exhibit ‘A’ in the night to sign. He did not see the portion on which he signed. He did not know nor has he seen who prepared Exhibit ‘A’. He said that the signature in Exhibit ‘A’ was not their father’s signature. He said the alleged witness in Exhibit ‘B’ told him they did not sign Exhibit ‘B’, that they were not aware of the transaction. He cannot read in English. He said he is disputing Exhibits ‘A’ and ‘B’.
Under cross-examination, he said he could not remember the year his father gave him the plot of land upon which he built a house. He admitted he signed on Exhibit ‘A’ on the right on the instruction of his father. His name is on Exhibit ‘A’. He admitted that their father’s property was shared during his father’s life time. He did not protest to his father that the Plaintiff and Alhaji Garba Badamasi did not give him his own as his share of the distribution of their father’s estate. He, also, said he was not given a Toyota Hiace as his share of his father’s property. He could not remember the year he built the house on the said Land purportedly given to him by his father, nor could he remember how much he expended on the construction of the same. He stated that he was also given a land in front of their house. He was given money from the proceeds of the sale of the Toyota Hiace. He cannot remember the year their father died.
It is crystal clear in the record before this Court that apart from himself as a member of their family, no other member of their family was called by the Appellant to testify to some material facts claimed by him. He could not produce any of the Badamasis to confirm that he personally constructed the house, and that their late father truly gave him that portion as a gift. He admitted signing Exhibit ‘A’ on the instructions of their late father. He also admitted he was not given a house by his father. Strikingly, he admitted that the additional one room to the house he is occupying was built by his late father. D.W.1 stated he built the additional room with one Bala, apparently, the same Bala, P.W.3 described as his Late father’s Bricklayer.
The question is, if the Appellant was speaking the truth, how could his brothers have conspired against him, that not even one supported him. P.W.1 clearly stated that he sold part of his house to the Respondent even though the house was said to consist of four rooms, two toilet, and two kitchens to Exhibit ‘A’. There is evidence that P.W.1 divided his own share, and sold a portion to the Respondent. What the Respondent said that P.W.1 sold to him was three bedrooms, one kitchen and one toilet. It is clear in the evidence produced by the Appellant that he could not prove how he owned the said plot of land in dispute, his root of title. Accordingly, issue three No. 3 is resolved against the Appellant.
I find this appeal unmeritorious and hereby dismiss the same. Consequently the decision of the trial Court is hereby affirmed. I make no order as to cost.
AMIRU SANUSI, J.C.A.: The judgment just rendered by my learned brother Orji-Abadua, J.C.A. was supplied to me before now I agree with the conclusion she arrived at that there is no merit in this appeal. While dismissing it, I at the same time also affirm the decision of the trial court.
ABDU ABOKI, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, Theresa Ngolika Orji-Abadua, J.C.A., just delivered. I agree with his reasons and conclusion that this appeal is unmeritorious and be dismissed. I too affirmed the judgment of the trial court and make no order as to cost.
Appearances
S. A. Nasir Esq.For Appellant
AND
Abudulkarim K. Maude Esq.For Respondent
