MR. YAKUBU BALA v. MR. S.A. SAKYENU
(2013)LCN/6272(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2013
CA/K/116/2009
RATIO
CONDITIONS FOR A PRELIMINARY OBJECTION TO INVOKE THE JURISDICTION OF COURT
We have stated, repeatedly, that for a preliminary objection to be competent to invoke the jurisdiction of this Court, there must be evidence of filing of the same, and payment made therefor (if payment is required). See the case of MOYOSORE V. GOV. OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242 at 269 – 270, AYODE V. SPRING BANK PLC CA/K/297/2006 an unreported decision of this Court delivered on 19/4/2013 (pages 7 – 8). PER ITA G. MBABA J.C.A
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
MR. YAKUBU BALA Appellant(s)
AND
MR. S.A. SAKYENU Respondent(s)
ITA G. MBABA J.C.A (Delivering the Leading Judgment): This appeal arose from the judgment of Kaduna State High Court, in suit No. KDH/KAD/660/2006, delivered by HON. JUSTICE J.S. ABIRIYI on 16/1/2009. Appellant, who was the plaintiff at the Court below, had sought the following reliefs, as per his Amended statement of claim, filed on 23/7/2008:
“i. A declaration that the Defendant, having rescinded the Agreement in respect of the lands in dispute, had no authority to interfere with the Plaintiff’s possession and enjoyment of the lands in dispute.
ii. A declaration that the Plaintiff is the beneficial owner of the pieces of land located at Mararaban Rido and Kujama and measuring 157ft N, 494ft W, 155ft E and 100ft respectively and therefore to the exclusion of the Defendant.
iii. An order of perpetual injunction Restraining the Defendant, Agent, Privies, or assigns from remaining or committing further acts of trespass of the lands in dispute or from interfering with the plaintiff’s use and enjoyment of the lands in dispute.
iv. An order that he vacate and deliver immediate Possession of the lands to the Plaintiff.
v. General damages in the sum of N500, 000.00 (five hundred Thousand Naira) only for trespass.
vi. Such further or other order as the Honourable Court may deem fit to make.”
(page 20 – 21 of the Records)
The Respondent defended the suit and counter claimed as follows:
“(a) A declaration that the Plaintiff cannot resile from the customary sale of the three plots to him.
(b) A declaration of title to the plots of land situated at Mararaba Rido measuring 100ft x 100ft and 157ft N, 494ft W 155fts, 482ft E and respectively (sic).
(c) A declaration of title to the plot of land situated at Kujama measuring 100ft x 100ft.
(d) An order of perpetual injunction restraining the plaintiff whether by himself, servants, agents, assigns and successors in title from entry into the plots or having anything to do on the said plots.
(e) Costs of this action as shall be assessed by the Honourable Court.”
Parties led evidence and at the end of the trial the Court below held that the Appellant did not prove his claim – the rescission of the agreement by the Respondent (Defendant), and therefore gave judgment to the Respondent in his counter – claim.
Appellant was dissatisfied and filed this appeal on 16/3/2009, as per Notice of Appeal on pages 100 to 102 of the Records, which disclosed 3 grounds of appeal, as follows:
“GROUNDS OF APPEAL
(i) The judgment of the Kaduna High Court is against the weight of evidence.
(ii) The learned trial judge erred in law when he held “But under cross-examination the plaintiff said the transaction between them in respect of the two plots of land was in writing and stated further that “There is something in writing to show that we cancelled the agreement”. It is clear from the evidence under cross-examination that the alleged rescission would not have been the tearing of the agreement in respect of the Land in Kujama or the resort to the Police and Court action but the written document which he said showed that the agreement was/were cancelled” thereby relied on in-admissible evidence to find non rescission of the Agreement.
PARTICULARS
(a) The Appellant pleaded and led evidence to proof that the Respondent rescinded the Agreement by returning the original sale Agreement in respect of the plot in Mararaba Rido and tore the Agreement made by R. James Esq.
(b) Non of the parties pleaded that the rescission was in writing.
(c) Evidence obtained under cross-examination on facts not pleaded go to no issue and therefore in admissible.
(iii) The learned trial judge erred in law when he held that the Appellant did not prove the rescission of the Agreement when the Respondent failed to join issues with the Appellant nor led contrary evidence.
PARTICULARS
(a) The Respondent did not join issues with the Appellant with respect to the rescission of the Agreement nor was the evidence led by the Appellant challenged in any way by the Respondent.”
Appellant filed his brief of argument on 1/6/2009, and a reply brief on 13/2/2012, upon being served with Respondent’s Brief, filed on 17/10/2011.
Appellant distilled 2 issues for determination, namely:
“(1) Whether the Appellant pleaded and proved that the Respondent rescinded the agreement for the exchange of the 2 pieces of land for the debt of N220, 000.00 and whether the trial Court was right to rely on inadmissible evidence to find that the Appellant did not proof (sic) the rescission of the Agreement? (Grounds 2 and 3)
(2) Whether on the facts and evidence led in this case, the Respondent can be said to have proved purchase of the 3 pieces of land from the Appellant. Ground 1.”
The Respondent also distilled two issues for determination, namely:
“(1) Whether the Appellant proved that the Respondent rescinded the agreement for the sale of the two pieces of land (Grounds 2 and 3)
(2) Whether the judgment of the Lower Court is right in law. (Ground 1)”
When the appeal came up for hearing on 7/5/2013, Counsel of each side adopted their briefs and urged us, accordingly.
A brief facts of the case at the Lower Court shows that the parties were actually friends, and, in their good days, did some transactions together and with each other, among which was the agreement they entered into for the sale of a plot of land, situated at Kujama Chikun Local Government Area of Kaduna State, at the price of N80, 000.00. The Respondent paid the said sum and agreement thereto was executed – Exhibit 5.
Sometime, between 1998 and 1999, they entered into another agreement whereby the Respondent gave a loan of N270, 000.00, to the Appellant for his business. Appellant was able to repay the sum of N50, 000.00, leaving a balance of N220, 000.00, which the parties agreed that Appellant could repay by installments, as per Exhibit 1. Appellant later defaulted and offered to pay by his two pieces of land (a farm land at Mararaba Rido and a plot at Kujama) which were valued at N140, 000.00 and N80, 000.00, respectively.
The exchange thereof was facilitated by a Lawyer, common to the two of them (DW2), and the Respondent was led into possession.
Appellant later brought this case against the Respondent over the land, claiming declaratory reliefs, injunction and for trespass.
Arguing the Appeal, learned Counsel for the Appellant, EMMANEL KANTIOK ESQ., on Issue 1, argued that the Respondent in his statement of defence merely denied rescinding the agreement, (wherein he (Appellant) offered his 2 pieces of land in payment of the debt), but did not join issues with him (Appellant) on the act of resort to the use of Police and the Court against him, after the rescission of the agreement; that the Respondent is deemed to have admitted the Appellant’s averment with regard to the acts consequent upon the rescission of the agreement; that despite the fact that Respondent did not join issues with the Appellant on the acts, in furtherance of his rescission of the agreement; that Appellant led credible evidence which proved that the Respondent rescinded the agreement, tored the written agreement prepared for them, and resorted to the Police and the Courts, to recover the debt from him (Appellant). He relied on evidence of Pw1, Pw2 and Pw3 on pages 44 to 46; 54 to 56; and 58 to 59 of the Records, respectively, and on Exhibits 4, 9 and 10.
Counsel submitted that those pieces of evidence were neither challenged nor controverted, under cross-examination, by the Respondents that Appellant, accordingly, had discharged the onus of proving the rescission of the agreement; that the onus shifted on the Respondent to prove that, despite the acts subsequent to the rescission, the agreement subsists.
He relied on the case of DALE POWER SYSTEMS PLC V. WITT & BUSCH LTD. (2007) ALL FWLR (pt. 394) 353 at 367; ESOHO vs. ASUQUO (2007) ALL FWLR (PT. 359) 1355 at 1375.
Counsel added that the evidence of DW2, that the Respondent resorted to Police and Court actions to recover the debt, supported the case of the Appellant. He referred us to page 67 of the Records. He however, acknowledged that DW2 posited that such steps were taken before Appellant offered the Plots in exchange for the debt. He relied on the case of ODI vs. IYAHA (2004) ALL FWLR (Pt. 207) 570 at 590 -591.
Counsel added that the fact that the Respondent did not produce the written copy of the document that documented the exchange of the plots of land with the debt confirmed his (Appellant’s) assertion that the Respondent tore it, after rescinding the agreement. He submitted that the piece of evidence on which the trial Court based its findings was inadmissible, because none of the parties pleaded the rescission of the agreement in writing. He relied on the case OKWEJMINOR V. GBAKEJI (2008) ALL FWLR (Pt. 409) 405) at 434, on the law that parties are bound by their pleadings and any evidence at variance with the pleading, goes to no issue.
He urged us to resolve the issue in favour of the Appellant.
On Issue 2, Counsel submitted that, since the Respondent had counter claimed and had admitted that the 3 pieces of land belonged to him (Appellant) but that they were sold to him (Respondent) by the Appellant, he (Respondent) had the burden of proof of the sale, since the Appellant cannot be expected the prove negative (that he did not sell his land to the Respondent). He relied on the case of ARIN V. CHAKA (2000) FWLR (Pt.18) 340 at 346, 347; MOKANJUOLA V. ATILORE (2000) FWLR (Pt. 8) 1328 at 1341 – 1342; EWO V. ANI (2004) ALL FWLR (Pt. 200) 1484 at 1499; ADOLE V. GWAR (2008) ALL FWLR (Pt. 423) 1217 at 1249.
Counsel submitted that the Respondent failed to prove that he bought the 3 pieces of’ land from the Appellant under native law and custom, as he claimed; that to prove purchase of the land under native Law and custom, the Respondent had to prove payment of purchase price and delivery of possession of the lands to him, in the presence of witnesses. He relied on the case of MUSTAPHE V. MSHELIZAH (2003) FWLR (Pt. 183) 1 at 27; OGUNDALU V. MAGJOB (2006) NWLR (pt 978) 148; ARIN V. CHAKA (2000) (Supra).
Counsel re-stated that the Respondent did not prove the sale of the 3 pieces of land, and did not call any witness in respect of the sale of the 1st piece of land at the rate of N80, 000.00; that Yakubu Haruna, whom the Respondent alleged, effected payment to the Appellant, was not called as witness, but the court held that the signature of the said Yakubu Haruna on exhibit 5, was sufficient proof of payment of the purchase price; that the Court was wrong; that even if the payment was proved, there was no evidence that the Appellant let the Respondent into possession of the land covered by Exhibit 5; that the trial Court was wrong to rely on Exhibit 5 as proof of sale of the land under native Law and Custom, as documents are alien to transactions under Customary Law.
On the sale of the other 2 plots, Counsel submitted that the Respondent also failed to prove the sale. He admitted that the two pieces of land would have been given out in exchange for the debt of N220, 000.00, had the Respondent not rescinded that agreement, but added that the payment alone would not have constituted a valid sale under customary law in the absence of delivery of possession to the Respondent in the presence of witnesses; that there was no where delivery of possession of the 2 pieces of land was done to the Respondent. He urged us to so hold, and resolve the issue for the Appellant and allow the appeal.
The Respondent’s Counsel, S. I. Abdulaziz Esq., had told this Court that he had raised and argued a preliminary objection in the Respondent’s brief, on the competence of ground 2 of the appeal. See pages 3 and 4 thereof. But he admitted that the Respondent did not file the alleged preliminary objection, separately. I do not therefore think there is a valid preliminary objection for this Court to consider, if the Respondent had not filed the process, as required by Order 10 Rule 1 of the Court of Appeal Rules 2011.
We have stated, repeatedly, that for a preliminary objection to be competent to invoke the jurisdiction of this Court, there must be evidence of filing of the same, and payment made therefor (if payment is required). See the case of MOYOSORE V. GOV. OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242 at 269 – 270, AYODE V. SPRING BANK PLC CA/K/297/2006 an unreported decision of this Court delivered on 19/4/2013 (pages 7 – 8).
I, therefore, discountenance the alleged preliminary objection, for not being properly before us.
Arguing issue 1, Counsel said the Appellant did not prove that the Respondent rescinded the agreement for the sale of the two plots; that he had the legal burden to do so. He relied on paragraph 2 and 4(b) of the statement of defence to say that the Respondent joined issues with the Appellant on the alleged rescission of the agreement. He said that issues are joined in pleadings, when a party denies assertion and relied on the case of EDJKPO V. OSIA (2007) 8 NWLR (Pt. 1037) 635 at 667.
Counsel said that the Appellant made a heavy weather of the fact that the Respondent resorted to the police and the Courts, as evidence of rescission; he said that that was a case of putting the cart before the horse! He added that the agreement which Appellant claimed was rescinded, was made after the incidents of the report to the police and the Courts, as clearly stated by DW2 – (Page 67 – 68 of the Records), when he said:
“The issue of the plots was final agreement. It came after the Police and the Court process, “(Page 68).
Counsel said this crucial evidence was not impeached during cross examination by the Appellant. He said that rescission is a fact that has to be proved. He relied on the case of BAN – NELSON NIGERIA LTD V. MORO LOCAL GOVERNMENT, KWARA STATE (2007) 8 NWLR (pt. 1037) 263.
On Issue 2 – whether the judgment of the Lower Court is right in law – Counsel submitted that, upon a proper assessment, appraisal and evaluation of the evidence adduced, the trial Court cannot be faulted; that the parties transacted on three lands, in two transactions. He referred us to pages 93 and 14 of the Records – the findings of the Court and submitted that a finding of fact cannot be challenged by omnibus/general ground of appeal as the Appellant was doing; that it was obvious Appellant had admitted that he sold the land, as per Exhibit 5, to the Respondent.
On the issue of the two plots of land that were exchanged for the loan of N220, 000.00, Counsel said it was idle to argue that the Respondent had a legal duty to prove the sale, when it is an admitted fact that the two plots were given (sold) in exchange for the unpaid loan of N220, 000.00, which Appellant claimed the Respondent rescinded He said that the allegation of rescission itself admits of existence of a contract! He relied on the evidence of the DW2, and urged us to resolve the issues against the Appellant and dismiss the appeal
RESOLUTION OF ISSUES
In paragraph 11, 12 and 13 of the Amended Statement of claim of Appellant, he averred as follows:
“11. The Plaintiff avers that an Agreement was executed by them for the instalment payment of the Plaintiffs outstanding indebtedness to the Defendant. The Plaintiff shall rely on the Agreement dated 18/8/2000 and the Defendant is hereby put on Notice to produce the original at the hearing.
12. The Plaintiff avers that he could not meet up with the terms of the Agreement in paragraph 11 above and offered the lands indispute to the Defendant to offset the indebtedness. The Defendant initially accepted the offer and the land at Mararaba Rido was valued at N140, 000.00, while the land located at Kujama was valued at N80, 000.00 and Agreement to sell the lands to the Defendant was executed. The Plaintiff pleads this Agreement.
13. The Plaintiff avers that the Defendant subsequently doubted his sincerity in the Agreements in paragraph 12 and rescinded the Agreement in respect of the lands in dispute and requested the Plaintiff to make cash payment instead and the Plaintiff continued in possession of the lands in dispute.”
That, of course establishes the pleadings of the Agreement to exchange the plots of land for the debt, or to buy the debt with the land.
Testifying on that the issue, the Appellant told the trial Court:
“I did not pay because I did not have the means to do so, I went back to REUBEN JAMES … I told him that I have some plots of land which I would take him to see, so that he could take the defendant there, so that we agree on the amount so that I could get out of this case. I took REUBEN there. I took him to Kujama and Mararaba Rido and showed him the places. Kujama was two plots 100 x 100, Mararaba Rido a farm land. The places were valued. That of Mararaba Rido was valued at N140, 000.00 by REUBEN JAMES and the defendant, That of Kujama was agreed on N80, 000.00. That amount to N220, 000.00 … Later the defendant said he was no longer interested … He took the agreement in respect of Kujama land and tore it …” See pages 43 – 44 of the Records,
Appellant later said (still in evidence in chief):
“On the counter – claim, I say that the issue of my arrest by the Police has vitiated the agreement we had on the land. I do not want the Court to confirm the transaction we had with the defendant”
Page 47 of the Records.
Under cross-examination, he said:
“Original agreement for the plot at Mararaba Rido is not with me. I bought that plot from Kaduna Abubakar. At the time we made an agreement with the defendant, I gave him the original document. This is the agreement I had with Kaduna Abubakar – (Exhibits 6 and 6A) – The agreement between me and the defendant in respect of the large plot in Mararaba Rido and the large plot in Kujama was in writing. There is something in writing that we cancelled the agreement …” (pages 51 – 52)
The law places burden on a party that alleges the existence of any fact or thing to prove it. See sections 132 and 136(1) of the Evidence Act, 2011. Appellant therefore had a duty to prove the rescission of the agreement to exchange his two plots of land with the debt he owed the Respondent. There was sufficient evidence in support of the transactions he had with the Respondent relating to the pieces of land and, in particular, touching the giving of the two pieces of land to the Respondent for the outstanding balance of N220, 000.00.
In his argument in this appeal, Appellant’s argument in support of the alleged rescission, seems to lie in the claim that the Respondent used the Police against him and took out Court action to force him to refund the loan, that that meant he was no longer interested in the agreement to keep the land, for the money he (Appellant) owed the Respondent! He also said that the Respondent tore the land agreement which evidenced the land-for-loan transaction, and that meant he no longer accepted the arrangement to keep the land in lieu of the N220, 000.00 debts.
Such inference could not be made, especially as the evidence of the DW2 – the lawyer who served both parties in the land-for-loan transaction, had told the Court that the struggle to get the refunds of the loan, which took the parties to the Police and the Court, preceded the land – for the loan transaction. Hear him:
“We all agreed that he should be given opportunity to repay the money instalmentally, without resorting to police. So I drafted a very simple agreement, including the terms and mode of payment…When I drafted the agreement Yakubu Bala did not pay even a single Kobo. So without my knowledge, the matter was withdrawn from Sabo and taken to Metro Police Station. Yakubu was detained and his car seized by the Police. Yukubu wanted me to defend him. Sakyenu wanted me to defend him, I told them I could not. So I referred Yakubu Bala to late John Jerome while I was still trying to see how the matter could be resolved. Meanwhile I advised the Defendant that the case there would not give him his money. It may only get Yakubu convicted. At the Upper Customary Court, I stopped Sakyenu from going to testify so that the case would be discharged. Yakubu was discharged and he still did not pay the money, Sakyenu was worried and another case was filed in the Upper Area Court. Before the matter was even mentioned, I asked the lawyer to withdraw it. Yakubu now brought a new dimension as to how to pay the money.
He said he had some Pieces of land he could sell to the Defendant. Sakyenu was not initially interested. But I pressurized him and he accepted. Since I was the one that persuaded him I want to see the land at Rido very close to Yakubu’s house. He showed me a farmland. He said it was his piece of land. He said he bought it from somebody. He did not show me the documents but I believed him. He showed me another piece of land within the vicinity which he said he had sold earlier to the Defendant. So the plots there were two. Then Yakubu took me to Kujama and showed me another plot there which price we fixed at N80, 000. So I was the one that later took Sakyenu to the two pieces and showed him. There was still some balance, I told him to forgive Yakubu the balance. Finally I drafted two agreements for the land at Rido and the one at Kujama. That was the end of the matter. Everybody seemed satisfied.”
Of course, under Cross examination, Appellant had told the Court that he had something in writing to show that they cancelled the agreement! He did not produce it at the trial, and rather wanted to rely on inference!
The evidence by the DW2 too, was not disturbed or contradicted, in any way! I cannot therefore find any room or reason for such inference, in the face of the evidence and the findings of the trial Judge, which I cannot fault. I therefore resolve the issue one against the Appellant.
On Issue 2, I had earlier reproduced the germane portion of the evidence of the Appellant at the trial Court, when he said:
“On the Counter claim, I say that the issue of my arrest by the police has vitiated the agreement we had on the land. I do not want the Court to confirm the transaction we had with the Respondent” Page 47 of the Records.
Of course, Appellant did not show how his arrest by the police vitiated the agreement which, he admitted; he had with the Respondent on the plots of land. He had an agreement with the Respondent, as the evidence, adduced by him and the Respondent could establish on the land transactions. He was only being economical with the truth, when he alleged that the agreement was vitiated. I think he was expressing a regret, because of the turn of events, when he tried to deny the sale transactions, wishing to withdraw from the agreements he had with the Respondents on the pieces of land. Even his prayer to the Court below betrayed him, when he said:
“I do not want the court to confirm the transaction we had with the defendant!”
By that, he acknowledged “he had transaction with the Respondent” and now does not wants the Court to confirm it!
The Court can not grant such a prayer, as it has a duty to give effect to agreement freely reached by parties. See A.G. RIVER V. AG AKWA IBOM (2011) 8 NWLR (Pt.1248) 31, ratio!
“Where parties have entered into a Contract or an agreement voluntarily and there is nothing to show that same was obtained by fraud, mistake, deception or misrepresentation, they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement, just because he later found that the conditions of the contract or agreement are not favourable to him. This is the whole essence of the doctrine of sanctify of contract or agreement.”
I think the entire case of the Appellant is good example of an after-thought, brought about by bitterness and ill motive, fueled by anger, on Appellant coming to terms with the fact that he has lost the lands to the Respondent, after all. But there is no evidence to show he was defrauded.
There is no reason to fault the decision of the Court below or interfere with its findings in the circumstances. I therefore resolve the issues against the Appellant, and hold that the appeal is devoid of merit and should be dismissed.
It is accordingly dismissed, as I affirm the decision of the trial Court.
Parties shall bear their costs.
DALHATU ADAMU, CFR, J.C.A: I was privileged to go through the lead judgment of my learned brother Ita G. Mbaba JCA in this appeal. I agree with both his reasoning and the conclusion he reached. There is no merit in the appeal. It is accordingly dismissed also by me. I affirm the decision of the trial Court. I make no order as to costs. The parties should bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had the opportunity of reading in advance the leading judgment of my learned brother, Ita G. Mbaba, J.C.A, and I agree with him that this appeal totally lacks merit, and ought to be dismissed. I, too, dismiss this appeal and affirm the decision of the trial Court.
Appearances
Emmaunel B. Kantiok Esq., with him J.B. Adam Esq.For Appellant
AND
S.I. Abdulaziz Esq., with him P.K. Audu Esq., and L.G. Waziri Esq.For Respondent
