SADIQ v. BALARABE (2020)

SADIQ v. BALARABE

(2020)LCN/15415(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, November 03, 2020

CA/K/138/2018

RATIO

WORDS AND PHRASES: DURESS

DURESS: FACTS TO BE PROVEN TO SUCCESSFULLY ESTABLISH A CLAIM FOR DURESS

To be successful in a claim for duress there must be effectively no choice for the party other than to comply with the demand. The threat must be to such an extent that the pressure is unlawful and be a significant cause to inducing the person to accept the contract. The threat must also be of some significance and cause a threat to the economic interest of the party and a reasonable alternative must not be available at the time to the person. The law is that he whoever desires a Court to give judgment as to any legal right or liability dependent on the existence of facts, must plead and prove that those facts empirically exist – Iyabo Vs Sheidu (2019) LPELR 48767(CA). Sharing Cross Educational Services Ltd Vs Umaru Adamu Enterprises Ltd (2020) LPELR 49567(SC). PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONTRACT: BINDINGNESS OF THE TERMS OF AN AGREEMENT

Now, it is settled law that parties are bound by the contract they voluntarily enter into and cannot act outside the terms and conditions contained in the contract and neither of the parties to a contract can alter or read into a written agreement a term which is not embodied in it – African International Bank Ltd Vs Integrated Dimensional System Ltd (2012) 17 NWLR (Pt 1328) 1, Lagos State Government Vs Toluwase (2013) 1 NWLR (Pt 1336) 555. A Court too must treat as sacrosanct the terms of an agreement freely entered into by the parties as parties to a contract enjoy their freedom to contract on their own terms so long as same is lawful and if any question should arise with regard to the contract, the terms in any document which constitute the contract are the invariable guide to its interpretation. It is not the business of the Court to rewrite a contract for the parties and it should thus not add to or subtract from or import any provision into the contract – Daspan Vs Mangu Local Government Council (2013) 2 NWLR (Pt 1338) 203. Afrilec Ltd vs Lee (2013) 6 NWLR (Pt 1349) 1, ABC (Transport co) Ltd vs Omotoye (2019) LPELR 47829(SC), Mekwunye Vs Imoukhuede (2019) LPELR 48996(SC). In construing the relationship between the Appellant and Respondent therefore, the lower Court was obligated to confine itself to the plain words and meaning derived from the agreement between the parties, Exhibit 1 – Central Bank of Nigeria Vs Archibong (2001) 10 NWLR (Pt 721) 492, Ibama vs Shell Petroleum Development Co. (Nig) Ltd (2005) 17 NWLR (Pt 954) 364, Momoh Vs Central Bank of Nigeria (2007) 14 NWLR (Pt 1055) 504. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

DOCTRINE OF SANCTITY OF CONTRACT: exceptions to the law when a party will not be bound by a contract or terms of the agreement executed by him.

The law is settled that Parties are bound by the terms of agreement they freely entered into. OFORISHE VS. NIG. GAS CO. LTD. (2018) 2 NWLR (PT. 1692) 35; SPDC CO. LTD. VA. ALLAPUTA (2005) 9 NWLR (PT. 931) 475. This is an elementary principle of law. Agreements are sacrosanct and parties are expected and indeed mandated by law to honor their agreements and the Court must treat as sacrosanct and binding on all the parties and the Court, all terms of agreement freely entered by parties. This is the law. All agreements freely entered into by parties must be honoured. It follows that one party or the other cannot legally and properly opt out of or read into or read out of the terms agreed upon by both or all parties. HILLARY FARM LTD. & ORS v. M.V. MAHTRA & ORS. (2007) 14 NWLR (PT. 1054) 270; KOIKI VS. MAGNUSSON (1999) 5 SCNJ 296; JALBAIT VENTURES NIG. LTD. & ANR. VS. UNITY BANK PLC (2016) LPELR 41625 (CA). Once an agreement is freely entered into it is not for a party to resile from a term or terms of contract simply because same is/are not favourable to him. This is the whole essence of the doctrine of sanctity of contract or agreement. Therefore, where the terms of the contract or agreement are clear, the Court cannot add to, import into or subtract from the agreement. It’s judicial function is only toenforce and give effect to the intention and wishes of the Parties as expressed in their contract or agreement. The Court can do nothing more or nothing less.
The only exception to this rule is where it is shown that the agreement was obtained by fraud, mistake, deception, misrepresentation, or compulsion. See ATTORNEY GENERAL RIVER STATE VS. ATTORNEY GENERAL AKWA IBOM STATE (2011) 8 NWLR (PT. 1248) 3, where the Supreme Court stated thus:
“Where parties have entered into a contract or an agreement voluntarily and there is nothing to show same was obtained by fraud, mistake, deception, or misrepresentation they are bound by the provisions or terms of the contracts or agreement”.
These are the known exceptions to the law when a party will not be bound by a contract or terms of agreement executed by him. Except one of these situations is shown to exist, a party must be bound by and honour his agreement as expressed by him. It is not for the Court to rewrite the contract or its terms for the parties but to enforce the agreement freely and voluntarily entered into by parties. See AGBAREH VS. MIMIRA (2008) WL 158 LRCN 325; UBN VS. OZIGI (1994) 3 NWLR (PT. 333) 385; P.O. LTD. VS. G.T.B. PLC (supra). PER AMINA AUDI WAMBAI, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

The law is settled that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidis in as good a position as the trial Court to see whether the trial Court made perverse findings as here alleged by the Appellant. See ADEBAYO VS P. D. P. (2013) ALL FWLR (PT 695) 203 @ 234, 265 – 266, EKI VS GIWA (1977) 2 SC 131 ATOLAGBE VS SHORUN (1985), NWLR (PT2) 360.
This Court is therefore in as good a position as the trial Court to evaluate or re-evaluate the evidence since it does not involve the question of credibility of witnesses, but essentially that of the documentary evidence placed before the Court.

GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST ORIGINATE FROM GROUNDS OF APPEAL

Now, the law that issue or issues for determination must flow or originate from or be connected to a competent ground of appeal is elementary and now axiomatic. An issue that does not arise, originate or stem from or is not based upon a competent ground of appeal is incompetent and liable to be struck out. See AJIBULU VS. AJAYI (2013) LPELR – 21860 (SC); ATTORNEY GENERAL – RIVERS STATE VS. IKALAMA (supra); EHINMOSAN VS. N.N.P.C. (supra).

Also elementary and trite is that while an issue can spring out of one or a combination of grounds of appeal, a ground of appeal is incapable of donating more than one issue for determination. OLOWOSAGO VS. ADEBANJO (1988) 4 NWLR (PT. 88) 275; AFRIBANK NIG. PLC VS. YELWA (2011) ALL FWLR (PT. 585) 299. A ground of appeal which has donated an issue for determination is no longer available to donate another issue. PER AMINA AUDI WAMBAI, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ALHAJI SHEHU ISIAYAKU SADIQ APPELANT(S)

And

ALHAJI ALI BALARABE RESPONDENT(S)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Kano State High Court in Suit No. K/591/2014 delivered on 14th February, 2017 by Hon. Justice Usman M. Na’aba wherein judgment was entered in favour of the Respondent against the Appellant.

The facts on the part of the Respondent, as plaintiff before the lower Court, are that the Respondent by a sale agreement made on 31/01/2014 sold a plot of land at Gandun Sarki covered by Certificate of Occupancy No. RE/2002/1813 to the Appellant at N14,000,000 to be paid within 2 months of the execution of the agreement and in the event of default of payment to apply to the Court to auction the two plots of land covered by C of O Nos. RES/2000/1853 & LKN/RES/2001/15369 surrendered to him (Respondent) by the Appellant as security in realization of the N14m purchase price. Appellant defaulted in payment, hence the institution of the Suit at the lower Court seeking the enforcement of the term.

On the part of the Appellant, as defendant, his case is that he was the beneficial owner of the said plot of land covered by the Certificate of Occupancy No. RES/2002/1813 which he sold to one Alhaji Hassan Ibrahim at N6,000,000 (N6m) who took possession and in turn sold same to the Respondent at N10,000,000 (N10m) which plot was later discovered to have some problems. That the Respondent agreed to release the Certificate of Occupancy to (him) the Appellant, to return to the Ministry of Land on the condition that Appellant pays him (Respondent) the sum of N14,000,000.00 within 3 months of the execution of the agreement, and that he (Appellant) was compelled for fear of losing his job, to surrender Certificates of Occupancy Nos. RES/2000/1853and LKN-RES/2001/5369 in respect of his two other plots as requested by the Respondent as security to be auctioned in the event that the C of O RE/2002/1813 was not returned and the sum of N14m not paid to the Respondent. That upon the discovery that the land belong to the Emirate Council and the revocation of the Certificate, he offered to pay back to the Respondent N10m the Respondent bought the land from Alhaji Hassan but the Respondent insists on N14m.

The matter went into full trial after the moves to settle out of Court failed. Respondent testified as the sole witness and tendered some exhibits. Upon obtaining leave of the lower Court to file his statement of defence out of time and for deferment of the delivery of the judgment, the Appellant filed his statement of defence and his statement on oath. He testified as the sole witness for the defence. After reviewing the evidence led by both parties, the learned trial judge entered judgment in favour of the Respondent and granted the reliefs sought.

Upset by the judgment, the Appellant filed a notice of appeal challenging the judgment on 2 grounds, namely:
GROUND 1
The learned trial judge erred in law when it refused to consider the Appellant’s defence in paragraphs 3, 4, 7 and 8 of his statement of defence and Appellant’s testimonies as contained in his witness statement on oath.
PARTICULARS
1. The exhibits relied upon by the trial Court to enter judgment in favour of the Respondent was signed by the Appellant out of his desperation to have the Certificates for fear of loosing his job.
2. The Respondent used the Appellant’s desperation and fear to induce him to enter the transaction and signed the exhibit leading to the surrender of certificates of his houses.
3. The Appellant led evidence before the trial Court to establish those facts.
GROUND NO. 2
The learned trial judge erred in law when he failed to properly evaluate the evidence adduced by the defendant/Appellant thereby occasioned miscarriage of justice to him.
PARTICULARS
1. It is trite that the trial Court has a duty to consider the defence of the defendant no matter how hopeless it may be.
2. The learned trial judge failed to consider and evaluate the circumstance of the Appellant’s transaction with the Respondent.

The Appellant’s brief of argument filed on 04/07/2018 was settled by Farouk I. Umar Esq. wherein two issues were distilled for determination of this Court to wit:
1. Whether the learned trial judge properly evaluated the evidence of PW1 to warrant reliance on same to give judgment in this matter against the Appellant
2. Whether the learned trial judge was right in disregarding the defence put forward by the Appellant particularly the Appellant’s defence in paragraphs 3, 4, 7 and 8 of his statement of defence and the testimony of the Appellant in that regard as contained in his witness statement of Oath.

S.S. Gezawa Esq. who settled the Respondent’s brief of argument filed on 26/09/2019 raised a sole issue for the consideration and determination of this Court. The issue is:
Whether the decision of the trial Court is against the weight of evidence

Respondent also filed a Notice of Preliminary Objection which was argued at pages 6 – 10 of the brief.

PRELIMINARY OBJECTION
It is the law and practice of appellate Courts to first consider and determine a preliminary objection which fundamentally challenges the competence of the appeal before delving into the determination of the substantial appeal since such a preliminary objection seeks to terminate or abort the hearing of an appeal. NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627; ACHONU VS. OLADIPO OKUWOBI (2017) LPELR – 42102 (SC).

However, where as in the case at hand, the objection is only to disable an aspect of and not to exterminate an appeal, the proper approach is to file a motion on notice to seek the striking out of the offending ground(s) of appeal and not by filing a preliminary objection. Se SHELL PETROLEUM DEV. CO. (NIG.) VS. OSIOWHOR MONDAY AMADI (2011) LPELR – 3204 (SC). A preliminary objection is inappropriate since there are other grounds which can sustain the appeal. The Respondent ought only to have filed a motion on Notice rather than a preliminary objection since the preliminary objection even if successful, would not terminate the hearing of the appeal. Preliminary objections are filed only against the hearing of an appeal and not against one or more of the grounds of appeal which cannot stop the hearing of the appeal. That notwithstanding, the wrong procedure of filing a preliminary objection instead of a motion on notice should not preclude the Court from looking into the merits of the objection.

Now, the grounds of the objection are:
1. That issue number 1 as contained in the Appellant’s brief of argument is at variance with ground 2 of the notice of appeal and therefore incompetent.
2. That by the nature of the argument canvassed under issue 1 of the Appellant’s brief of argument, it amounts to fresh issue being raised for the first time which can only be raised when leave of this honourable Court was duly sought and obtained.

Two issues were formulated in arguing the preliminary objection, namely:
a. Whether issue number 1 as contained in the Appellant’s brief of argument is at variance with ground 2 of the Appellant’s notice of appeal and therefore incompetent?
b. Whether by the nature of the argument canvassed under issue 1 of the Appellant’s brief of argument, it amounts to fresh issue being raised for the first time which can only be raised when leave of this honourable Court was duly sought and obtained?

On his issue No. 1, the Respondent’s contention is that the complaint in ground 2 from which Appellant indicated he distilled Issue 1, is at variance with the issue No. 1 in that while the Appellant’s complaint in ground 2 is that the learned trial judge erred when he failed to evaluate the evidence adduced by the defendant, (now the Appellant), issue 1 (one) challenges the evaluation of evidence of PW1 who was the plaintiff and now the Respondent which renders the issue incompetent and liable to be struck out and ground 2 deemed as abandoned. He cited the cases of EHINMOSAN VS. N.N.P.C. (2016) ALL FWLR (PT. 837) 686; KANO TEXTILES VS. GLOEDE & HOFF LTD. (2005) 22 NSQR; ATTORNEY GENERAL – RIVERS STATE VS. IKALAMA (2016) page 172 at 1723 ratio 1 (incomplete citation).

Flowing from this, it was submitted on his 2nd issue that the argument canvassed by the Appellant on his issue No. 1 amounts to raising fresh issues and without seeking and obtaining the leave of Court to do so which deprives this Court of the jurisdiction to entertain same citing a number of authorities. KAYODE VS. R.T.U.A.M.C. (2016) ALL FWLR (PT. 852) 1422 AT 1430 ratio 7; UBA PLC VS. S.E.A. LTD. (2016) ALL FWLR (PT. 829) 1422 AT 1129 ratio 3; ODEDO VS. P.D.P. (2016) ALL FWLR (PT. 815) 201 AT 205 ratio 3 and A.T. PLC VS. N.U.T.G. & T.W.U.N. (2016) ALL FWLR (PT. 862) 1485 AT 1492 ratio 7.

The Appellant’s Counsel did not respond to this preliminary objection but left the matter to our discretion. Our discretion shall be based on the law.

Now, ground 2 from which is issue No. 1 was distilled as earlier reproduced in this judgment, complains of the failure of learned trial judge to evaluate the Appellant’s evidence (as DW1) which Appellant contends occasioned a miscarriage of justice.

As rightly submitted by the learned Counsel to the Respondent, issue No. 1 and the argument canvased thereunder challenge the evaluation and the ascription of probative value to the evidence of the Respondent as PW1 which evidence Appellant contends, is invalid and inadmissible in law. That the reliance placed on the inadmissible evidence in entering judgment for the Respondent against the Appellant is wrong in law.

It is true that both Ground 2 and issue No 1 complain of evaluation of Evidence. Both question the correctness of the evaluation of the Evidence by the learned trial judge. However, while Ground 2 alleges that the learned trial judge did not properly evaluate the Appellant’s Evidence, which Appellant contends occasioned a miscarriage of justice, the centre point of the complaint of improper evaluation in issue No. 1 is the Respondent’s evidence which Appellant contends is inadmissible and ought not to have been admitted and relied upon to ground the judgment in Respondent’s favour had the evidence been properly evaluated. They are mutually exclusive.

In simple terms, Ground 2 is saying that the Lower Court did not consider the Appellant’s evidence in the evaluation process before arriving at its decision in entering judgment against him. Issue No 1 and the argument canvassed thereon is saying that the Lower Court ought not to have admitted the Respondent’s inadmissible Evidence and relied on same to enter judgment in favour of the Respondent.

Clearly, issue No. 1 which attacks the Respondent’s evidence and the reliance placed on same by the Court does not flow from ground 2 which complains of failure of the lower Court to evaluate and consider the Appellant’s evidence and defence which failure occasioned a miscarriage of justice.
The position of the law as earlier restated is clear. Where an issue does not flow from a ground of appeal such an issue is incompetent and liable to be struck out and so shall it be. Issue 1 which is incompetent is hereby struck out along with the argument canvassed thereon spanning from paragraph 4.0 – 4.23 at pages 7 – 13 of the Appellant’s brief of argument.

Ground 2 from which no competent issue has been distilled is deemed abandoned and is accordingly struck out. The consideration of the 2nd issue becomes otiose and the result is that the preliminary objection which the Appellant is deemed in law to have conceded having not responded to same, succeeds and is upheld.
The effect is that only the Appellant’s 2nd issue deserves consideration in this appeal.

Now to the main appeal, Appellant’s Counsel in arguing Issue No. 2 which is his surviving issue reiterated the duty of a trial Court which has the singular opportunity of seeing and observing the demeanour of witnesses, to consider and evaluate the evidence put forward by the defendant in defence of the plaintiff’s claim howsoever hopeless it may be or else a miscarriage of justice might be occasioned.

He submitted that the Appellant who conceded the plaintiff’s claim to the tune of N10,000,000 clearly explained to the Court by unpunctured evidence how the transaction came about and his attempt to settle the Respondent by paying him N5,000,000.00 the receipt of which the Respondent acknowledged in the statement of claim. He contended that such pleaded and undiscredited evidence which is direct on the issue in controversy, ought to have been acted upon by the Court – citing the case of ADEKOLA VS. AILARA (2011) ALL FWLR (PT. 572) 1696 AT 14 prepared by the Respondent’s solicitors, the learned trial judge in a perverse finding held that the agreement was freely signed by the Appellant.

Similarly it was contended that Exhibit 4 ought not to have been admitted and relied upon having been prepared on 09/07/2015 during the pendency of the action while the suit was instituted on 19/12/2014 by virtue of Section 83 (3) of the Evidence Act.

In urging us to resolve the issue in favour of the Appellant, learned Counsel reiterated that the failure of the trial Court to properly evaluate the evidence and in particular in disregarding the Appellant’s defence seriously occasioned a miscarriage of justice which warrants the success of the appeal and the setting aside of the judgment of the trial Court. We were urged to so hold.

In his response, learned Counsel to the Respondent restated the settled law that the burden of proof rests on the person who asserts, Enemchukwu Vs. Okoye & Anr. (2016) LPELR – 40027 (CA); Veepee Ind. Ltd. Vs. Cocoa Ind. Ltd. (2008) All FWLR (pt. 425) 1667, 1670 – 1071 ratio 5, and submitted that the burden was discharged unchallenged by theRespondent as the Appellant chose not to cross-examine the Respondent nor contradict his evidence, but rather acknowledged signing the agreement (Exhibit 1) freely. That being so, he argued that the duty of the Court is only to respect the sanctity of agreements voluntarily entered by the parties and enforce same, and not to rewrite agreement of parties. Citing the cases of P.O. LTD. VS. G.T.B. PLC (2016) ALL FWLR (PT. 841) 1450 AT 1453 ratio 3, A.C.E. LTD. VS. COLE (2016) ALL FWLR (PT. 861) 1201 AT 1207 and ADEMETAN VS. I.T.R.C.C.G (2016) ALL FWLR (PT. 821) 1502 at 1510 ratio 15.

Premised on these, he submitted that the purpose of defence is to counter the position of the claimant but where as in this appeal, no evidence is led to controvert the claimant’s evidence, the Court is duty bound to treat the claimant’s evidence as unchallenged and admitted by the defendant/Appellant and to act upon same. S.S. LTD. VS. ADAMU OLADIRAN (2016) ALL FWLR (PT. 836) 521, 526 – 527 ratio 10.

Learned Counsel also drew our attention to the facts admitted by the Appellant in cross-examination, in considering the whole conduct of the Appellant, to wit, that the Appellant bore 3 different names; that he was a staff of the Ministry of Land Kano State when the allocation of the disputed plots giving rise to Exhibit 4 arose, and that he was responsible for making allocation of plots of land in Kano State at the time the allocation was made, in urging us to hold that the decision of the lower Court is not against the weight of evidence and to resolve the issue in favour of the Respondent and against the Appellant.

RESOLUTION OF APPEAL
The issue in this appeal is slim. Parties are ad idem that the Appellant was the beneficial owner of the land originally covered by Certificate of Occupancy No. RES/2002/1813 situate at Gandun Sarkin which he sold to one Alhaji Hassan Ibrahim at N6,000,000 who after taking possession, sold same to the Respondent. As a result of problems that later arose with respect to the said Certificate of Occupancy (C of O) necessitating the Appellant to return the certificate to the Ministry of Land Kano State, the Respondent agreed to release the Certificate of Occupancy on the condition that Appellant surrenders title documents of other properties as security in the event of failure to pay him the sum of N14,000,000.00 within 2 months.

The Appellant concedes that the said Certificate of Occupancy No. RES 2002/1813 having been revoked, the Respondent is entitled to a refund of the purchase price he bought the property from Alhaji Hassan Ibrahim, the sum of N10,000,000. The Respondent’s case is that their agreement is that he sold the land to the Appellant at N14,000,000 and would accept only N14,000,000.

Appellant’s position is that he signed the agreements out of desperation to have the Certificate of Occupancy returned to the Ministry of Land for fear of losing his job. His grudge with the judgment of the lower Court which is the crux of this Appeal is that the learned trial judge did not properly evaluate his evidence to consider his defence put up at trial leading to his signing of the agreement. The complaint really is about none or improper evaluation of the Appellant’s evidence by the lower Court. The law is settled that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidis in as good a position as the trial Court to see whether the trial Court made perverse findings as here alleged by the Appellant. See ADEBAYO VS P. D. P. (2013) ALL FWLR (PT 695) 203 @ 234, 265 – 266, EKI VS GIWA (1977) 2 SC 131 ATOLAGBE VS SHORUN (1985), NWLR (PT2) 360.
This Court is therefore in as good a position as the trial Court to evaluate or re-evaluate the evidence since it does not involve the question of credibility of witnesses, but essentially that of the documentary evidence placed before the Court.

Evaluation of evidence simply means to give value to, to ascertain the amount, to find numerical expression for etc. It entails the assessment of evidence so as to give value or quality to it not by quantity but by credibility. See BELLO VS STATE (2007) 10 NWLR (PT 1043) 582, ALAKE VS STATE (1992)9 NWLR (PT 265) 260.
The judge does this by the assessment of admissible and credible evidence offered by the parties placing each on the imaginary scale which though imaginary, is the scale of justice to ascertain which of the parties to the case has more preponderant evidence to sustain his claim. AMEYO VS OYEWOLE (2008) LPELR 3768.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Now, what is the evidence on record? The Respondent testified as PW1 and adopted his written statement on Oath. Through him seven documentary exhibits were tendered and admitted including exhibits 1 & 4. Exhibit 1 is the agreement entered into between the Appellant and theRespondent as the purchaser & vendor respectively, executed on the 31/01/2014.

It contains among others the following terms:
1. That the Vendor sold his plot with No. LKN/RES/2002/1813 to the purchaser on the agreed price sum of Fourteen Million Naira Only (14,000,000).
2. That the purchaser shall pay to the vendor the aforementioned amount of Fourteen Million Naira Only (14,000,000.00) on or before the 31st day of March, 2014 that is two months.
4. That the Vendor hereby deposit to the purchaser the title document of plot No. LKN/RES/2002/1813 today Friday the 31st January, 2014.
5. That the purchaser hereby deposit to the Vendor title documents in respect of his two plots of land with Nos. RES/2000/1853 and LKN/RES/2001/5369 as security.
6. That the purchaser agreed that in the event of his failure to pay the aforementioned Fourteen Million Naira Only (14,000,000.00) the vendor is at liberty to institute an action in a Court of law for the auction of these two plots with Nos. RES/2000/1853 and LKN/RES/2001/5369 for the purpose of payment of the Fourteen Million Naira Only (N14,000,000.00).

Furthermore, in the course of trial, efforts were made to settle out of Court. For that purpose, terms of agreement titled the “Sale/Settlement Agreement” dated 9th July, 2016 (Exhibit 4) were drawn up and executed by both parties. The learned Appellant’s Counsel submitted that Exhibit 4 which was made during the pendency of the action is inadmissible by virtue of Section 83 (3) of the Evidence Act and ought not to have been relied upon. It is not in doubt that the said Exhibit 4 was made during the pendency of the suit. Exhibit 4 is the terms of settlement prepared in pursuit of an amicable settlement of the matter. A document such as Exhibit 4 which was made with the consent of both parties in the pursuit of an amicable settlement of the matter out of Court in which both parties were fully involved in its preparation and duly executed by both parties, should not in my view be excluded from being admitted by virtue of Section 83 (3) of the Evidence Act. By its nature, it is not a document that any of the parties would take an advantage of, the other being terms upon which both parties agreed to settle the matter out of Court. A statement made in a document during the pendency of an action with the consent and full involvement of all parties, such as terms of settlement, Exhibit 4 herein, in my humble view is and should be an exception to the general rule in Section 83(3) of the Evidence Act. The Legal truism that to every general rule there is always an exception applies here. In ANYA VS ANYA (2014) LPELR – 22479 (CA). This Court Per Mselia JCA also reasoned that the terms of settlement should not be excluded from being admitted in evidence by virtue of the then, Section 91 (3) now Section 83 (3) of the Evidence Act. I therefore discountenance the Appellant’s submission and hold that Exhibits 4 was properly admitted in Evidence and duly relied upon by the Lower Court.

Now, term VI of Exhibit 4 – states:
That consequent upon that, the current purchaser re-sold the plot in favour of the current vendor at the sum of Fourteen Million Naira Only (N14,000,000.00) and the parties executed an agreement dated 31st January, 2014, attached to this agreement as Appendix 4.

These terms of the agreement in both Exhibits 1 & 4 are clear and speak for themselves. By clause 1 of the Exhibit 1, the Respondent as the vendor sold the plot No. LKN/RES/2002/1813 to the Appellant as the purchaser at the agreed price of N14,000,000 to be paid within two months. Precisely by the 31st March, 2014 (clause 2) and the Appellant deposited his title documents Nos. RES/2000/1853 and LKN/RES/2001/5369 in respect of his two other properties with the Respondent as security in the event of failure to honour the term in clause 1, so as to enable the Respondent utilize clause 6 to seek an order of a competent Court for the auctioning of the secured properties.

Similarly, by Exhibit 4 the purchase price also agreed upon is the sum of N14m. These are the clear terms of the two agreements between the Appellant and the Respondent.

The position of the learned Counsel to the Appellant is that the Appellant did not freely sign Exhibits 1 & 4 and the lower Court failed to consider the Appellant’s explanation and his undiscredited evidence of duress, coercion and desperation leading to the signing of the Exhibits which the Appellant reaffirmed in cross-examination.

First of all, let me quickly remind Counsel of two principles of law. Firstly, that parties and the Court are bound by the contents of the transmitted record before the Court and no Counsel can argue outside the record nor can the Court act outside it. AKINPELU VS. ADEGBORE & ORS. (2008) LPELR – 354 (SC); OGLIOKO MEMORIAL FARMS LTD. & ANR. VS. NALB LTD. & ANR. (2008) 12 NWLR (PT. 1098) 412.

Secondly, that the address of Counsel in his brief of argument no matter how brilliantly and eloquently written is not a substitute for nor can it take the place of evidence. ODUWOLE VS. WEST (2010) 10 NWLR (PT. 1303) 598; AYORINDE VS. SOGUNRO (2012) 11 NWLR (PT. 1312) 460; OLAGUNJU VS. ADESOYE (2009) 9 NWLR (PT. 146) 225. A party’s case is made out or lost firstly on pleadings and secondly on evidence adduced in support of the pleaded facts and not on the address of Counsel.

A look at the respondent’s pleadings and the averments in the written statement on oath reveals that the Appellant did not plead any fact of duress or coercion nor aver in the written statement on oath any evidence of duress or coercion to the signing of Exhibits 1 & 4. It is only at paragraph 3 (k) that he pleaded the fact of desperation and fear of losing his job which led him to surrender his title documents to the Respondent. The pleaded facts of “desperation” of loss of job which is also deposed to at paragraph 10 of the written deposition is the reason for the surrendering of his title documents Nos. RES/2000/1853 and LKN/RES/2001/5369 to the Respondent and not the reason for signing Exhibits 1 & 4.

By the Appellant’s own showing in his pleadings and evidence in chief what he did out of desperation is the surrendering of his title documents to the Respondent and not the signing of Exhibits 1 & 4 as submitted by his Counsel. It was the Appellant and not the Counselwho was the witness and he was emphatic that he was not forced to sign the agreement (Exhibit 1). He stated in cross-examination “I was not forced into signing Exhibit 1 but only desperate”. It is the Appellant’s pleadings backed up by his testimony as DW1 and not the submission of learned Counsel that the Court is entitled to reckon with in determining whether Exhibit 1 was signed freely or under duress. That is exactly what the learned trial judge did and found rightly that Appellant freely signed Exhibit 1. Therefore, the question of the Appellant signing Exhibits 1 & 4 under duress or coercion as strenuously canvassed by Appellant’s Counsel does not arise and is of no moment. Furthermore, (as rightly submitted by the Respondent’s Counsel, the Respondent as DW1 was not cross-examined by the Appellant to confront him on the issue. Admittedly, from the record of the lower Court, the Appellant was initially unrepresented by Counsel as at the time the Respondent testified but that does not preclude the Appellant from personally cross-examining the Respondent or when later he engaged the services of a Counsel, if deemednecessary, for the Counsel to apply for the recall of the Respondent for cross-examination. It is thus, a statement of law as rightly submitted by the Respondent’s Counsel that the Appellant is deemed to have accepted the evidence of the Respondent and the Court bound to act upon same.

Assuming without so stating that the Appellant signed Exhibits 1 & 4 out of desperation, desperation is not synonymous with duress or compulsion. In the Blacks Law Dictionary, 6th Edition at page 504, the word “duress” is defined as any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise could not (or would); subjecting a person to improper pressure which overcomes his will and coerces him to comply with a demand to which he would not yield if acting as free agent.
Compulsion also involves the act of using force or pressure to make someone do something; it is a state of being forced to do something. On the other hand, desperation is a strong feeling of sadness, fear or loss of hope and surrender to despair.
Signing an agreement out of desperation or fear of losing one’s job and not out of duress or compulsion, in my humble view does not exempt the party from being bound by the agreement.
In any case, the factual situation here is that Appellant was neither forced to sign Exhibits 1 & 4 nor did he sign them out of desperation but only surrendered his title documents to the Respondent out of desperation.

The settled law is that a party who signs a contract, or an agreement, or any document for that matter is bound by its contents and cannot resile therefrom. Appellant having freely signed Exhibits 1 & 4 is legally bound by their contents. See NWARIE VS. ADAKWA (2016) LPELR 41600 (CA).

Now, the Appellant’s Counsel faults the lower Court for not considering Appellant’s explanation and defence put up at paragraphs 3, 4, 7 & 8 of his statement on oath. This complaint is the plank of his argument on this issue. The paragraphs 3, 4, 7 & 8 of the written statement on oath which the lower Court is accused of not evaluating or considering are: that the Appellant sold the land to one Hassan Ibrahim at N6,000,000.00; that the Alhaji Hassan took full possession of the Plot; that he(Hassan) sold the plot to the Appellant at N10,000,000; that Appellant went to Hassan to inform him of the development and requested for the Certificate but he said he had sold it to the Respondent; that Appellant went directly to the Respondent and requested for the release of the Certificate of Occupancy for onward transmission to the Ministry and that as soon as the problem was resolved he would return same to the Respondent and in the event of revocation, would pay back to the Respondent his money, the sum of N10,000,000.

The above facts deposed at paragraphs 3, 4 and 7 only explain how the Respondent became the owner of the Certificate of Occupancy the subject of Exhibits 1 & 4. They have nothing to do with the signing of Exhibits 1 & 4. Only paragraph 8 touches on the contents of Exhibits 1 & 4 in the sense that while the agreed price in both Exhibits 1 & 4 is the sum of N14m, the deposition in paragraph 8 is that Appellant agreed to pay N10m.

Again the position of the law is clear. Where a contract or agreement has been reduced into writing no oral evidence can be led to add to, subtract for agreement. See Section 128 (1) of the Evidence Act and UBN VS. OZIGI (1994) 3 NWLR (PT. 333) 385. In the case of EZENUM VS. K.S.H.S.M.B. (2011) 9 NWLR (PT. 1251) 89 AT 118 PARAS B – C the Supreme Court held:
“Where a case is fought on pleadings supported by documentary evidence, oral evidence should not be allowed to contradict the clear terms of the documents since the task before the Court is to interpret or construct the terms of the said Exhibits…”
It is often said that documentary evidence is the best evidence. It is the best proof of contents of document and no oral evidence will be allowed to contradict the contents thereof except where fraud is pleaded. See ATTORNEY GENERAL BENDEL STATE & 2 ORS. VS. U.B.A. LTD. (1986) 4 NWLR (PT. 337) 5 adopted by the same apex Court in EGHAREVBA VS. OSAGIE (2009) 18 NWLR (PT. 111) 123.
Therefore, per force of law paragraph 8 of the Appellant’s written statement on oath and his oral evidence cannot be allowed to override, vary, alter or contradict the contents of Exhibits 1 & 4. Oral evidence except to support or expantiate or throw more light on the contents of a written agreement, cannot be allowed to contradict or alter the contents. Where the oral evidence does not support or explain but conflicts with or contradicts the contents of documentary evidence, such oral evidence must be discountenanced. In other words, the sum of N10m stated in paragraph 8 of the Appellants deposition as the amount payable to Respondent cannot be allowed to vary or alter the agreed sum of N14m contained in clauses 1 and 6 of Exhibit 1 and clauses VI & 4 of Exhibit 4, freely executed by the Appellant. Paragraph 8 of the Appellant’s written deposition must be discountenanced and discarded in so far as it is in conflict with the contents of Exhibits 1 & 4

The learned trial judge after reviewing the evidence of the Respondent as PW1 made the correct finding that the evidence was not challenged or controverted and was admitted by the Appellant which requires no further proof.

The Court further found that the defendant entered the agreement out of his freewill and referred to Appellant’s evidence in cross-examination when he said he was not forced to sign Exhibit 1. Based on the foregoing the lower Court heldthus:
“For emphasis the defendant had admitted the existence of Exhibit 1 which I have found as a fact so the basis of his admission suggest that there is no dispute so the need to prove does not even arise. The admission in my view satisfied the requirement of the law as it is clear and total”.

The above finding and conclusion by the learned trial judge contrary to the contention of the Appellant’s Counsel that same is perverse, is pukka. It cannot be faulted. The Counsel’s view that the finding is perverse, is not supported by the record.

The explanation and the defence put by the Appellant which the lower Court is faulted for not evaluating and considering is not a defence acceptable by law. Though a true position of law as rightly submitted by the Appellant’s Counsel that the Court must consider all defences put up by a party no matter how foolish or unreasonable, the Court can only give effect to a valid and recognizable defence. A defence like the one relied upon by the Appellant in his written statement on oath as his oral evidence explaining the circumstances leading to the agreement in Exhibit 1 as the reason for admitting an amount less than and at variance with the amount agreed upon in Exhibit 1 is not a defence that the Court can give effect to by the clear provisions of Section 128 (1) of the Evidence Act and the avalanche of decided authorities that have interpreted the statutory provision. In other words, the mere fact that the Appellant was the beneficial owner of the plot which he sold to one Hassan at N6m from whom the Respondent bought the land at N10m does not without fraud, misrepresentation, mistake or duress affect or negative the agreement in Exhibit 1 that the Appellant agreed to repurchase the same land from the Respondent at N14m nor does the fact operate as a defence to exempt him from honouring his agreement and obligation under the contract/agreement in Exhibit 1 & 4 to pay the agreed sum of N14m to the Respondant. The lower Court was thus right in not giving effect to that defence.

The Appellant has not successfully given us any cogent reason to fault the evaluation of evidence by the lower Court and its findings and conclusion arrived at or to interfere with same.

In the circumstance, the sole issue in this appeal is resolved against the Appellant and in favour of the Respondent. Consequently the appeal is dismissed as lacking in any merit and the judgment of the lower Court delivered by Hon. Justice Usman M. Na’abba on 15th February, 2017 in Suit No. K 591/2014 is affirmed. Parties shall bear their cost. These are the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Wambai JCA just delivered. I agree that this appeal lacks merit and I dismiss it.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The facts of the case leading up to this appeal are pretty straightforward. Sequel to a transaction of sale of land that took place between the parties, the Appellant agreed to pay the Respondent the sum of N14 Million within two months and he surrendered the Certificates of Occupancy Nos. RES/2000/1853 and LKN/RES/2001/15369 covering two plots to the Respondent as guarantee for the payment. It was agreed that where the Appellants defaults in paying the N14 Million within the agreed time, the Respondent was at liberty to apply to Court to auction the two plots in realization of the money. The entire agreement was reduced into writing and was signed by the parties.

The Appellant defaulted in making the payment and the Respondent applied to the lower Court to enforce the agreement and he tendered the agreement as Exhibit 1 at the trial. In his defence, the Appellant pleaded that he was compelled by fear of losing his job to surrender the two Certificates of Occupancy and to agree that where he defaults in paying the N14 Million the Respondent was at liberty to apply to Court to auction the two plots in realization of the money. The grouse of the Appellant in this appeal is that the lower Court failed to properly consider his defence and his unchallenged evidence of duress, coercion and desperation.

The Appellant did not contest the contents of the agreement, Exhibit 1, and that they ordinarily supported the case of the Respondent. The contention of the Appellant was that the lower Court should not have enforced the contract against him because he was compelled by fear of losing his job to sign the agreement and that this amounted to a defence of duress, coercion and desperation. It is correct that an agreement entered into under duress and coercion is not binding and enforceable and it is voidable – Omman Vs Ekpe (2000) NWLR (Pt 641) 365, Santrade Investments Ltd Vs Tino Electronics (Nig) Ltd (2010) LPELR 4931(CA).

Duress is threat of harm made to compel someone to do something against their will or judgment; especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction Calabar Central Co-Operative Thrift & Credit Society Vs Ekpo (2001) 17 NWLR (Pt 743) 649, Oilserv Limited Vs L. A. Ibeanu & Company (Nig) Ltd (2008) 2 NWLR (Pt 1070) 191.
To be successful in a claim for duress there must be effectively no choice for the party other than to comply with the demand. The threat must be to such an extent that the pressure is unlawful and be a significant cause to inducing the person to accept the contract. The threat must also be of some significance and cause a threat to the economic interest of the party and a reasonable alternative must not be available at the time to the person. The law is that he whoever desires a Court to give judgment as to any legal right or liability dependent on the existence of facts, must plead and prove that those facts empirically exist – Iyabo Vs Sheidu (2019) LPELR 48767(CA). Sharing Cross Educational Services Ltd Vs Umaru Adamu Enterprises Ltd (2020) LPELR 49567(SC).
Thus, the Appellant had the obligation to plead all the ingredients of duress and/or coercion sufficient to make a contract voidable and to lead credible evidence to prove them. In the instant appeal, the Appellant

did not plead any of the essential ingredients of duress; all he averred was that he was compelled to sign the agreement, Exhibit 1, by fear losing his job. It was not his case that the compulsion was propelled by the Respondent and that he would not have signed the agreement but for the compulsion. The Appellant did not also lead any evidence to establish duress. In fact. he testified under cross-examination that “l was not forced in signing Exhibit 1 but was only desperate.” The lower Court was thus on very firm ground when it rejected the case of the Appellant on duress.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Kano State delivered in Suit No. K/591/2014 by Honorable Justice Usman M. Na’aba on the 14th of February, 2017. I abide the order on costs in the lead judgment.

Appearances:

FAROUK I. UMAR, ESQ., with him, ADAM. H. UMAR, ESQ., NANA FATIMA ALFA, ESQ., ABDULHALIM ADAMU, USMAN L. ADAM, ESQ. and S. I. SULEIMAN, ESQ. For Appellant(s)

SAGIR SULEIMAN GEZAWA, ESQ., with him, AUWAL YA’U, ESQ. For Respondent(s)

LawCare Nigeria

admin

YOU MAY HAVE MISSED

OVERVIEW OF TRANSFER PRICING IN NIGERIA

LAWS REGULATING ADVERTISING COMPANIES IN NIGERIA

GUIDE TO PROPERTY INVESTMENT IN LAGOS STATE

GUIDE TO INVESTING IN NIGERIA

admin

Related Story

YOU MAY HAVE MISSED