UMARU AMADU MAINAMA v. ALHAJI TUKUR DAMBATTA
(2014)LCN/7300(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of June, 2014
CA/K/397/2004
RATIO
COURT; EVALUATION OF EVIDENCE; WHAT IS THE MEANING OF EVALUATION
Evaluation of evidence means to determine the worth or value of the evidence by placing the evidence of the disputants side by side in the imaginary scale of civil justice to ascertain the side on which the quality of the evidence preponderates. See West African Breweries Ltd. V. Savannah Ventures Ltd. (2002) 5 – 6 SCNJ 269 at 287 to the effect that evaluation of evidence leads merely to findings based on the quality of evidence already existing. per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
LAND LAW: SALE OF LANDED PROPERTY; WHETHER PART PAYMENT OF PURCHASE PRICE OF LANDED PROPERTY BY THE VENDEE TO THE VENDOR DOES NOT CONSTITUTE VALID SALE OF LANDED PROPERTY
Although the court below did not cite any authority for the proposition that part payment of purchase price of landed property by the vendee to the vendor does not constitute valid sale of the landed property, the following plethora of cases support the said conclusion of the court below: In Odusoga and Anor. V. Ricketts (1997) 7 NWLR (Pt. 511) 1 at 15, for example, the Supreme Court held inter alia that- “It follows, therefore, that where the purchase price is not fully paid there can be no valid sale, not withstanding that that purchaser is in possession. The possession cannot defeat the title of the vendor. See: Oloto V. Administrator – General and Ors. 12 WACA 76.”
There is also the case of Manya v. Idris (2001) 8 NWLR (Pt. 716) 627 at 637 where the Court (Kaduna Division) held per the lead judgment of the great jurist Salami, J. C. A., (later P.C.A.) inter alia that- “Where purchaser of land made part payment of the purchase price but defaulted in paying the balance there can he no valid sale even where the purchaser is in possession: Odufuye V. Fatoke (1977) 4 SC 11. Such possession is incapable of defeating the vendor’s title.”
See also the subsequent Supreme Court cases of Chabasaya V. Anwasi (2010) 10 NWLR (Pt. 1201) 163 at 187 -188 and Nidocco Limited v. Mrs. I. A. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350 at 382 (letter H). per. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
UMARU AMADU MAINAMA Appellant(s)
AND
ALHAJI TUKUR DAMBATTA Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the High Court of Justice Kano sitting in Kano (the court below) whereby it awarded ownership of a house situate at No. 112 Fagge “B” Quarters Kano to the respondent (who replaced the original respondent as plaintiff at the court below) against the appellant (who replaced the original appellant as defendant at the court below), occasioning the appeal.
The essential facts of the case are that the original respondent bought house No. 112 Fagge “B” Quarters Kano from the two brothers, one Audu Garba and the appellant on 3. 12. 92 for N90, 000. Audu Garba, and the appellant derived title to the property from one Hajiya Aluwa on 8. 3.73. It was Audu Garba, the PW1, who bought the house for joint use by his brother, the appellant, and himself. Because of incompatibility between their wives, they decided to sell the house to buy separate houses. The sale was evidenced by a sale agreement. It was done in the presence of witnesses. Audu Garba vacated his own portion of the house on 3. 12. 1992. The appellant refused to vacate the other part of the house.
The appellant alleged that he re-negotiated re-purchase of the portion of the house occupied by him from the respondent’s authorized agent. According to the appellant he made part payment for the re-purchase of the house. The appellant stated that he owed a balance of N45, 000 purchase price at the time the dispute went to court.
The court below found as facts that the respondent bought the disputed house in the presence of witnesses and paid the full purchase price of N90, 000 to the vendor. While the appellant, according to the findings of the court below, did not establish that he re-purchased the house from the respondent. The court below also found that even if the appellant re-purchased the house, his failure to pay the full purchase price made the sale transaction inchoate.
Based on the findings above the court below entered judgment for the respondent declaring him owner of the disputed house by purchase. The court below dismissed the counter – claim of the appellant. The court below also issued a permanent injunction restraining the appellant and his heirs/successors from interfering with the peaceful possession of the house by the respondent. Unhappy with the judgment of the court below, the appellant filed a notice of appeal with three (3) grounds of appeal on dated 17.6.03, questioning the judgment. In a brief of argument filed on 12.9.06, the appellant distilled these issues for determination (unedited)-
3.01 “Whether the trial court was right in holding that the only existing transaction was the 1st sale of house No. 112 Fagge “B” Quarters Kano to the 2nd Plaintiff.
3.02 Whether the trial court was right in refusing to accept and act upon the evidence of the defendant/appellant’s witnesses.
3.03 Whether the trial court acted judicially and judiciously in evaluating the evidence of the witnesses of the defendant/appellant.”
The first and second issues were argued together to the effect that the case of the respondent and the appellant at the court below was governed by the pleadings of both parties; that the appellant and the respondent were in agreement that the house No. 112 Fagge “B” Quarters, Kano, was jointly sold by the appellant and his brother, the PW1, to the respondent for the sum of N90, 000; that the counter – claim by the appellant had disclosed fresh facts which placed the responsibility on the court below to assess the case of both parties; that the court below shirked its responsibility by looking into the claim of the respondent, but neglecting the claim of the appellant; that had the court below considered the appellant’s case it would not have held that the only existing transaction was the first transaction between the respondent and the appellant and his brother; and that the appellant having proved the counter – claim on uncontradicted/uncontroverted evidence against the respondent, the court below should have entered judgment for the appellant on the counter – claim as owner of the disputed house by purchase and ought to have dismissed the respondent’s claim vide Obmiami Brick and Stone (Nig) Limited v. African Continental Bank Ltd. (1992) 3 SCNJ 1, Iriri and Ors. v. Erhuhubare and Anor. (1991) 3 SCNJ 1, Baba v. Nigeria Civil Aviation Training Centre and Anor. (1991) 7 SCNJ 1, Odubeko V. Fowler and Ors (1993) 9 SCNJ 185, American Cyanamid Company V. Vitality Pharmaceuticals Ltd. (1991) 2 SCNJ 42 and Onwuka and Ors. v. Omogu (1992) 3 SCNJ 98. It was based on the arguments above that the appellant urged that the first and second issues (supra) be resolved in his favour.
The appellant submitted on the third issue that the court below did not evaluate the evidence of the appellant and his witnesses judicially and judiciously which resulted in a miscarriage of justice. Therefore the court should evaluate the unevaluated evidence vide Ofondo v. Niweigha (1993) 2 SCNJ 73, Imah v. Okogbe (1993) 12 SCNJ 57; upon which the appellant urged for the appeal to be allowed and the judgment of the court below reversed in his favour.
The respondent’s brief filed on 28.12.06, identified this issue for determination-
“Whether or not the appellant proved by credible and admissible evidence that there was a sale transaction between the appellant and the respondent.”
The respondent argued that the appellant did not lead evidence in support of his pleadings in paragraphs 3, 4, 5, 6, 7 and 8 of the statement of defence in pages 80 – 81 of the record of appeal (the record) vis – a – vis the evidence of the DW1 in pages 16 – 17 of the record that he purchased the house from the respondent’s authorised agent; consequently the evidence went to no issue and the pleading in question deemed abandoned and must be expunged vide the cases of Adimora v. Ajufo (1989) 3 NWLR (Pt. 80) 1, Ude v. Osuji (1990) 5 NWLR (Pt. 151) 488, Jolayemi v. Alaoye (2004) 5 SCNJ 305, Awara v. Alalibo (2002) 12 SCNJ 62. In Ogbogu V. Ugwuegbu (2003) 4 SCNJ 79 at 94.
It was also argued that the evidence of the DW1 having not been supported by the pleadings is inadmissible and once expunged, as must be the case, the DW2’s evidence in page 26 of the record left to support the case is hearsay; and that in the absence of evidence that the respondent authorised an agent to sell the house to the appellant, the burden of proof on the appellant that he purchased the house from the respondent was not discharged as required by Sections 135 (1) and (2) and 135 of the Evidence Act read with the cases of Ibrahim V. Ojomo (2004) 1 SCNJ 309 at 323, Onyenje V. Ebere (2004) 6 SCNJ 126 at 136 – 139.
It was further argued that even if the second sale transaction took place, it remained inchoate without payment of the full purchase price and was also caught by Section 4 of the Statute of Frauds, therefore the appellant’s counter-claim against the respondent was rightly dismissed by the court below upon which the respondent advocated for the dismissal of the appeal and affirmation of the judgment of the court below in consequence.
The issues for determination formulated by the appellant capture the kernel of the judgment of the court below and relate to the grounds of appeal and, also, embrace the single issue for determination presented by the respondent. Accordingly, I shall be guided by the appellant’s issues in the discussion.
I proceed with the consideration of the issues in reverse order, starting with the third issue on the evaluation of evidence, as the first task a trial court is expected to embark upon in its judgment is the evaluation of evidence. The court below was faced with a claim and a counter – claim. After summarising the evidence and the written submissions in the case in pages 108 – 119 of the record, the court below itemised five issues for determination arising from the totality of evidence in the case in page 119 of the record. The court below treated each of the issues seriatim by making findings of fact and arriving at legal results from the findings of fact to reach its judgment that the respondent, as plaintiff, proved her case and that the appellant, as defendant/counter – claimant did not prove that the house in dispute was resold to him by the respondent, which resulted in the granting of the respondent’s claim and the dismissal of the counter – claim of the appellant vide pages 119 – 123 of the record.
Evaluation of evidence means to determine the worth or value of the evidence by placing the evidence of the disputants side by side in the imaginary scale of civil justice to ascertain the side on which the quality of the evidence preponderates. See West African Breweries Ltd. V. Savannah Ventures Ltd. (2002) 5 – 6 SCNJ 269 at 287 to the effect that evaluation of evidence leads merely to findings based on the quality of evidence already existing.
In the instant case the judgment of the court below contained the following summary of the evidence adduced in the case disclosing the facts of the case as pleaded by the parties; the issues that arise for determination; the resolution of the issues for determination with the reasons given for resolving the issues; and the final order of the court below with respect to the reliefs sought in the case vide pages 108 – 123 of the record containing the said judgment which represents the essential requirements or ingredients of a full judgment as held by the Supreme Court in C. P. C. v. I. N. E. C. and Ors (2012) 13 NWLR (Pt. 1317) 260 at 285 – 286 following the cases of Agbanelo V. U. B. N. Ltd. (2000) 7 NWLR (Pt. 666) 534, Dike v. Aduba (2000) 3 NWLR (Pt. 647) 1, The Automatic Telephone and Electric Co. Ltd. V. Federal Military Government of Nigeria (1968) 1 ANLR 429 or (196) SCNLR 552.
In my considered view, the unquestionable/proper evaluation of the evidence by the court below relieves the court of the duty to evaluate the evidence under Section 15 of the Court of Appeal Act, 2004. See C.P.C. V .I.N. E. C. and Ors. (2011) 12 SC (Pt. V) 80, Awolaye v. Ogunbiyi (1986) 2 NWLR (Pt.24) 626 at 633 (letters B – E) following the cases of Akinloye v. Eyiyola (1968) NMLR 93, Obisanya v. Nwoko (1974) 6 SC 69, Woluchem v. Gudi (1981) 5 SC 291 at 326, Folorunsho V. Adeyemi (1975) N. M. L. R. 92 and Balogun V. Agboola (1974) 10 SC 111.
There is thus no substance in the third issue. I resolve it against the appellant.
Coming to the first and second issues which were argued together by the appellant, it is settled, as was also conceded by the appellant in paragraph 4.01 of his brief of argument in these words (unedited) that-
“The second plaintiff/original respondent and the defendant were in agreement that the house in question i.e. No. 112 Fagge “B” Quarter was jointly sold by defendant and his brother P.W.1 FOR The sum of a N90,000 only.”
There is therefore no dispute that the house No. 112 Fagge “B” Quarters, Kano, jointly owned by the appellant and his brother, the PW1, was sold by them to the respondent for N90,000. Indeed to err on the side of abundance, the respondent’s statement of claim in pages 57 -59 of the record and the evidence in support in pages 2 – 13 thereof state that the appellant and his brother sold the disputed house to the respondent for N90, 000 which was paid in the presence of the PW1, the appellant’s brother and co-vendor of the house, as well as the PW3, the village or District Head of Fagge, and one Alhaji Tanko Soso or Sarki Tanko, and the Ward Head of Fagge, plus many other persons whose names were not disclosed in the record before the house became the property of the respondent.
The court below found as a fact on the said pieces of evidence that the respondent established ownership of the house by purchase and declared her owner of the disputed house vide pages 119 – 120 and 123 of the record, which is another veritable method of proving title to landed property or house vide the cases of Kopek construction Ltd. v. Ekisola (2010) 3 NWLR (Pt. 1182) 618, Adeniji v. Onagoruwa (2000) 1 NWLR (Pt. 639) page 1, Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351 at 361 – 362 and Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 or (1990) 1 SCNJ 152 at 167.
The court below assigned two major reasons in its judgment for dismissal of the appellant’s counter – claim. First, the court below disbelieved the evidence for the appellant that the house was resold to him by the respondent. The court below held that the appellant’s brother, the PW1, who had jointly owned the house with the appellant before they sold it to the respondent, denied the reselling of the house to the appellant by the respondent. Indeed the PW1, the appellant’s brother, testified in examination – in – chief in page 6 of the record that he was not aware that the house was resold to the appellant by the respondent.
The cross – examination of the PW1 in pages 6 – 7 of the record did not touch the issue of resale of the house to the appellant by the respondent, indicating the appellant accepted the testimony of the PW1 denying the reselling of the house by the respondent to the appellant. See Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 and Okosi v. State (1989) 1 NWLR (Pt. 100) 642 which decide it that the failure of the defence to attack a witness in the witness – box during cross – examination on a vital aspect of the defence case only to raise the issue for the first time at defence stage amounts to the acceptance of the opponent’s case by the defence and, also, amounts to an afterthought by the defence and the said evidence given at defence stage should not be countenanced. The unchallenged evidence of the PW1, the appellant’s brother, in that wise supported the finding of the court below on the issue that the house was not resold to the appellant by the respondent, in my view.
The court below also held that the village or District Head of Fagge, the PW3, denied existence of any transaction between the appellant and the respondent respecting the re-purchase of the house from the respondent by the appellant. Page 12 of the record supports the said finding where the PW3 testified in examination – in – chief inter alia that-
“As the Galadima I was not aware of any transaction over the house between 2nd plaintiff (respondent) and the defendant (appellant), such a transaction could not have taken place in the absence or without my knowledge.”
The cross – examination of the PW3 in page 13 of the record did not touch the piece of testimony (supra); nor did the appellant make any effort during cross – examination of the PW3 to suggest that the house was resold to him by the respondent. Uncontradicted/unchallenged credible evidence such as the evidence of the PW3 (supra) is deemed admitted by the opponent. See Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419, N.S.I.T.F.M.B. v. Klifco Nig. Ltd (2010) 13 NWLR (Pt. 1211) 307, Nasir V. C.S.C., Kano State (2010) 6 NWLR (Pt. 1190) 253, National Insurance Corp. Of Nigeria V. Power and Industrial Engineering Ltd. (1986) 1 NWLR (Pt. 14) page 1. Again the court below was on sound footing in its said finding, in my view.
The court below further reasoned in page 121 of the record that the DW1 and the DW2, the witnesses called by the appellant who testified in pages 15 -21, 24 – 29 of the record were economical with the truth and shifty on the circumstances under which the alleged second transaction of reselling the house, like the existence of written agreement backing up the transaction which the DW1, the purported arrow – head of the alleged transaction, could not remember but was able to remember the existence of a written agreement in respect of the first transaction of sale of the house to respondent by the appellant and his brother which took place before the purported second transaction and the DW2 not being present at the alleged second transaction, were the prime factors that the court below relied upon to disbelieve the DW1 and the DW2 on their respective testimonies that there was a second transaction in which the house was resold to the appellant by the respondent.
As can be seen above, the disbelief of the DW1 and the DW2 by the court below was prompted by their credibility as witnesses. The court below saw and heard the DW1 and the DW2 during their respective testimony before it. The unique or singular advantage of watching the witnesses testify before the court below whereby it assessed their credibility by disbelieving their testimonies is not available to an Appellate Court, so I am slow to interfere with the assessment of the evidence of the DW1 and DW2 by the court below that was based on the belief/credibility of the said two witnesses. See Tanko v. Echendu (2011) 18 NWLR (Pt. 1224) 253, Omotayo V. C.S.A. (2010) 16 NWLR (Pt. 1281) page 1, Ojibah V. Ojibah (1991) 15 NWLR (Pt. 189) 296, Ibuluya V. Dikibo (2010) 3 – 5 SC (Pt. 11) 100.
In the result I cannot fault the judgment of the court below rejecting the appellant’s case that he re-purchased the house from the respondent.
Perhaps, ex abundanta cautela (out of abundance of caution) the court below went ahead to find that even if the appellant proved the second transaction of re-purchase of the house from the respondent, the transaction was incomplete in that the appellant paid only part of the purchase price which rendered the alleged re-purchase of the house invalid and unenforceable. To use the words of the court below in page 122 of the record –
“I wonder how there can be a declaration of title in favour of a person who has not proved any sale of the disputed property to him and has not proved the payment of the full purchase price to the owner of the property. Even if this second transaction had taken place, it would definitely remain inchoate without the payment of the full purchase price, so, in my view, the Defendant has not proved his counter claim against the 2nd plaintiff.”
The following pieces of evidence support the finding above: The DW1 stated under cross – examination in page 20 of the record in support of the non payment of the full purchase price of the house by the appellant that-
“… there was a balance of the purchase price to be paid and the transaction did not take place.”
Also, the DW2 stated in examination – in – chief in page 25 of the record (unedited) that-
“The original defendant paid the 2nd plaintiff the sum of N43, 000 as part payment and he undertook to pay some amount every month which I cannot know or remember how much it is prior to this transaction”
So, the finding of the court below, albeit made in the alternative, that the appellant only made part payment of the purchase price of the house was supported by the evidence of the DW1 and the DW2 (supra).
Although the court below did not cite any authority for the proposition that part payment of purchase price of landed property by the vendee to the vendor does not constitute valid sale of the landed property, the following plethora of cases support the said conclusion of the court below: In Odusoga and Anor. V. Ricketts (1997) 7 NWLR (Pt. 511) 1 at 15, for example, the Supreme Court held inter alia that-
“It follows, therefore, that where the purchase price is not fully paid there can be no valid sale, not withstanding that that purchaser is in possession. The possession cannot defeat the title of the vendor. See: Oloto V. Administrator – General and Ors. 12 WACA 76.”
There is also the case of Manya v. Idris (2001) 8 NWLR (Pt. 716) 627 at 637 where the Court (Kaduna Division) held per the lead judgment of the great jurist Salami, J. C. A., (later P.C.A.) inter alia that-
“Where purchaser of land made part payment of the purchase price but defaulted in paying the balance there can he no valid sale even where the purchaser is in possession: Odufuye V. Fatoke (1977) 4 SC 11. Such possession is incapable of defeating the vendor’s title.”
See also the subsequent Supreme Court cases of Chabasaya V. Anwasi (2010) 10 NWLR (Pt. 1201) 163 at 187 -188 and Nidocco Limited v. Mrs. I. A. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350 at 382 (letter H).
The net result is that the appeal is unmeritorious. I would dismiss the appeal and affirm the judgment of the court below (Rano, J.) with N30, 000 costs to the respondent against the appellant.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead judgment rendered by my learned brother IKYEGH JCA, I entirely agree with the judgment and adopt same as mine.
I abide by all consequential orders including order on costs.
Appearances
Mr. R. A. SadikFor Appellant
AND
Mr. A. A. DuroFor Respondent
