USMAN v. TANIMU & ANOR
(2021)LCN/15817(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, September 10, 2021
CA/K/497/2017
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
HALILU USMAN APPELANT(S)
And
1. ALH. DANLADI TANIMU 2. MR. SAMUEL RESPONDENT(S)
RATIO
WHETHER OR NOT THE RELATIONSHIP BETWEEN PARTIES IN A LEGAL CONTRACT IS BINDING
From the averments in the pleadings, the relationship between the parties is contractual and in general legal parlance binding. Parties and Courts are bound by the terms of the contracting parties, and this is so because the contract is a legally binding agreement between parties, by which rights are acquired by a party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires ad idem of parties. See Odutola V. Papersack (Nig) Ltd (2006) 18 NWLR (Pt 1012) 470 and Orient Bank (Nig) Plc V. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37.
A contract may be oral or written. Where a contract is evidenced in writing, in the construction of the terms of the contract, Courts normally don’t look beyond the written document. PER AKINBAMI, J.C.A.
THE OFFICIAL LANGUAGE OF THE SUPERIOR COURTS OF RECORD
In Ojengbade v. Evan (2001) 12 SCNJ421 540, the Supreme Court per lguh JSC stated thus:-
“There can be no doubt the official language of superior Courts of record in Nigeria is English, and that if documents written in any language other than English are to be tendered and properly used in evidence, they must duly be translated in English either by a competent witness called by the party to the proceedings, who needs them to prove his case, or by the official interpreter of the Court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of a witness and an arbiter at the same time in the proceeding. See also Damina v. The State (1995) 8 NWLR(Pt.415) 513 at 539.” PER AKINBAMI, J.C.A.
WHETHER OR NOT NON-REGISTRATION OF A REGISTRABLE LAND INSTRUMENT AFFECTS ONLY THE LEGAL OR STATUTORY TITLE
In the case of Mokom v. Odili (2010) ALL FWLR (Part 536) 542, it was held that the non-registration of a registrable land instrument affect only the legal or statutory title not the equitable one. That the legal title may be imperfect, but that the equitable title of the owner is available.
The legal position is that the parties each lay claim to entitlement. They both have the evidential burden of establishing their claim, and succeeding on the strength of their case as opposed to the weakness of the case of the other party. See Fagunwa v. Adibi (2004) 17 NWLR (pt4903) 544 at 568. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the High Court of Kaduna State delivered on 30th March, 2017 in suit No. KD/176/2012 by Honourable Justice K. Dabo.
The dispute culminating in this appeal is on the ownership of a house situated at Pampon Gwaiba, Tundun Wada, Zaria. In the trial High Court, the Appellant on record as plaintiff sued the 1st and 2nd Respondents over the property in dispute.
The parties filed and exchanged pleadings.
The 1st defendant filled a statement of defence while the 2nd defendant did not file a statement of defence. As reflected in paragraph 37, of the plaintiff’s statement of claim, the plaintiff claimed jointly and severally against the two defendants the following reliefs:-
A. A DECLARATION that the plaintiff is the bonafide owner and entitled to possession of the disputed house situated at Anguwan Pampon Gwaiba, Tudun-Wada, Zaria.
B. AN ORDER setting aside any sale or agreement purportedly entered into between the Plaintiff and the Defendants herein same being illegal, unlawful, null and void.
C. AN ORDER of perpetual injunction restraining the Defendants, their agents, servants, heirs, privies, successors in title how so ever from committing acts of trespass or in whatever manner forcefully ejecting the Plaintiff from the disputed house as described in paragraph (a) above.
D. AN ORDER directing the 1st Defendant to collect the sum of N560,000.00 (Five Hundred and Sixty Thousand Naira) only from the Plaintiff being the amount he gave the Plaintiff as purported balance for the sale of the Plaintiff’s house to the 1st Defendant.
E. The cost of this suit.
At the trial, the plaintiff on the one hand and the 1st Defendant called witnesses, but the 2nd defendant led no evidence nor did he participate at the trial.
The case of the Appellant as plaintiff, was that he is the owner of the house in dispute which is situated at Unguwan Pampon Gwaiba, Tudun-Wada, Zaria, Kaduna State.
The 1st Respondent, was introduced to the Appellant by the 2nd Respondent as a person who is interested in financing the yellow soap making business. First Respondent agreed to lend an initial N200,000.00 to the Appellant for soap production, which amount is to be paid in six months on condition that Appellant paid monthly interest of N20,000.00 for the period of six months. The loan of N200,000.00 was given to the 2nd Respondent, who was to use it to produce the soap. The soap produced was given to the Appellant, who was to sell same and pay back the loan through the 2nd Respondent. At the end of the first six months, Appellant paid 1st Respondent through 2nd Respondent the total sum of N360,000.00. Two Hundred Thousand Naira being the principal sum, and N120,000.00 being interest on the principal sum.
After the end of the first six months, the 1st Respondent increased the loan to N400,000.00 on the condition that he will be paid N40,000.00 monthly as interest on the principal sum. Like the first loan, the N400,000.00 was given to the 2nd Respondent who produced and gave the Appellant the soap for retail sale in Zaria.
The Appellant stated that he was taken to a Court in G.R.A Zaria by the 1st and 2nd Respondents who made him to sign a document titled “Letter of Agreement” dated 3rd March, 2011 Exhibit P1 page 23 of the record of appeal. The Respondents collected Appellant’s title document as collateral. The 1st Respondent was paid the agreed interest of N40,000.00 (Forty thousand naira) for a period of five months and the principal sum of N400,000.00 (Four hundred thousand Naira) through the 2nd Respondent who was a student of the 1st Respondent’s school.
The 1st Respondent told Appellant that he did not know the whereabouts of the 2nd Respondent, and two days later, 1st Respondent caused the arrest and detention of the Appellant at Tundun-Wada Police Station, where for the first time, the contents of Letter of Agreement Exhibit P1, dated 3rd March, 2011 was read and explained to the Appellant. The Appellant was only released after the intervention of PW1 (Idris Abdullahi) on strict orders by the policemen that he must comply with the terms of the Letter of Agreement dated 3rd March, 2011. Fearing further confrontation and harassment by the policemen, and in view of the financial influence and connections of the 1st Respondent, the Appellant, his brother and PW1, went to the 1st Respondent’s house to collect the sum of N600,000.00 as directed by the police, only to be given N560,000.00. The 1st Respondent claimed he had removed N40,000.00, being the balance of the interest on the principal sum for the last six months as per the money lending arrangement. The Appellant, his brother and loris Abdullahi were made to sign Exhibits R1, and R1b (Sales Agreement dated 25th October, 2011). The 1st Respondent sued the Appellant at the Chief Magistrate Court, Tudun-Wada, Zaria and Rent Tribunal, Tudun-Wada, Zaria seeking to eject the Appellant from the disputed house. Exhibits P2 and P4 dated 20th January, and 8th March, 2012 at pages 24 and 29 of the record of appeal.
A staff of the Chief Magistrate Court Tudun-Wada, Zaria who was privy to the arrangements informed A. Is’haq Esq to assist the Appellant and A. Is’haq Esq challenged the jurisdiction of both the Magistrate Court, and Rent Tribunal on the ground that title and/or ownership is in dispute between the parties, hence the instant suit. The case for the 1st defendant was that he is the owner of the property lying and situate at Pampon Gwaiba behind Pharmacy, Tudun/Wada Zaria, having purchased since from the plaintiff for the sum of N1,000,000:00 only.
At the end of the trial, Counsel for the parties addressed the Court and in the course of its judgment the Court had to make findings on the various issues agitated by Counsel. The Court found as a fact that“ The Plaintiff’s presence in the 1st Defendant’s house to collect the balance of sale money displaced all doubts in my mind about the agreement for the sale of the disputed house. Without positive, direct and cogent evidence, the plaintiff will not be entitled to the reliefs claimed. The Court will not set aside the sale of the house to the 1st defendant and will not compel the 1st defendant to collect the sum of N560,000 given to the Plaintiff pursuant to the agreement. I am satisfied that by Exhibit D1 and the oral evidence of DW1, DW2, and DW3, the 1st defendant has proved that the plaintiff sold the house in dispute to him.”
Based on these crucial findings, the trial Court dismissed the plaintiff’s claim.
Aggrieved by the decision of the trial Court, the plaintiff appealed to this Court, by Notice of Appeal filed on 10/4/17 containing six grounds of appeal. These grounds of shorn the Particulars of Error are:-
Ground One
The Court below erred in law when it held that the agreements purportedly made between the Appellant and the Respondents were not unlawful, illegal, null and void thereby occasioned a miscarriage of justice.
Ground Two
The Court below erred in law when it relied on Exhibit D1 (Letter of Agreement dated 6/3/11) to establish sale of the Appellant’s house to the 1st Respondent.
Ground Three
The Court below erred in law when it discountenanced the Appellant’s Exhibit P1 (Letter of Agreement dated 3/3/11) and held that Exhibits P2, P3, and P4 were not relevant to the issue under reference thereby occasioned a miscarriage of justice.
Ground Four
The Court below erred in law thereby occasioned a miscarriage of justice when it held that there is no evidence before the Court that the police at Tudun Wada Police Station, Zaria harassed, and intimidated Appellant to sign Exhibits R1 and R1b, and that the Appellant’s counsel submission that Sales Agreement dated 25/10/11 and Exhibit R1b were forcefully made after the Appellant was arrested and detained at the Police Station Tudun Wada Zaria was not borne out of evidence before the Court.
Ground Five
The Court below erred in law, thereby occasioned a miscarriage of justice when it held that there was sale of the disputed house to the 1st Respondent by the Appellant.
Ground Six
The Court below erred in law thereby occasioned a miscarriage of justice, when it granted the 1st Respondent a relief not prayed or asked for by the 1st Respondent.
In line with the Rules of this Court, parties filed and exchanged their Briefs of Argument. The relevant Briefs of Argument for this appeal are:
a. Appellant’s Brief of Argument dated 16th day of November, 2017 and filed on the 16th November, 2017 deemed 6/7/2020. Settled by Dr. A. Is’haq.
b. 1st Respondent’s Brief of Argument, dated 6th July, 2020 filed on 6/7/2020. Settled by Sirajo lnusa Esq.
c. Appellant’s Reply Brief of Argument dated 13th July, 2021 and filed 13th July 2020. Settled by Dr. A Is’haq.
Based on the grounds of appeal, the Appellant in his brief of argument formulated a lone issue for determination:-
“Whether the Court below was right when it entered judgment in this suit in favour of the 1st Respondent?”.
The 1st Respondent also distilled a lone issue for determination as follows:-
“Whether the Learned Trial Court is right in dismissing the Appellant (then Plaintiff’s) claims against the 1st Respondent and subsequently upholding the 1st Respondent’s Counter-claim?”
The two issues distilled for determination by the parties are more or less similar. I shall determine this appeal on Appellant’s issue.
ARGUMENT ON ISSUE
“Whether the Court below was right when it entered judgment in this suit in favour of the 1st Respondent.”
Learned counsel for the Appellant on this issue submitted that, the Court below was wrong when it entered judgment in this suit on behalf of the 1st Respondent. His argument is premised on the fact that, the Appellant has established his claim on the preponderance of evidence before the lower Court. Counsel contended that it is not in dispute between the parties that, the transaction leading to this instant suit was in respect of production and sale of yellow soap, and not the sale of the Appellant’s house to the 1st Respondent. He referred to paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 15 of the Appellant’s Deposition made on 25th July, 2012 at pages 17-18 of the record of appeal and paragraphs 7, 8, and 11 of the 1st Respondent’s Deposition on Oath made on the 7th September, 2012 at pages 40-41 of the record of appeal. Arguing further, learned counsel contended that, 1st Respondent was deliberately evasive about the details of the yellow soap production business, but he admitted under cross-examination as DW3 (Danladi Tanimu), that the agreement referred to in paragraph 11 of his Deposition “was for the purpose of soap making business.” Also that DW2, also admitted under cross-examination that “the N400,000:00 (Four hundred thousand naira) was given to the Appellant as capital.” Therefore, what actually transpired between the Appellant and the Respondents herein was not an agreement for the sale of the Appellant’s house, but the production and sale of yellow soap, to which the 1st Respondent was given fixed interest of N40,000 (Forty thousand Naira) per month.
Premised on the above contention learned counsel argued that, from the evidence before the lower Court and the circumstances of this suit, the 1st Respondent cannot rely on the contents of Exhibits P1 and D1 (Letter of Agreement dated 3rd March, 2011 and 6th March, 2011, and Exhibits R1 (Deed of Assignment dated 25th October, 2011) and R1b (Hausa version of the Agreement dated 25th October, 2011) to establish purchase and/or ownership of the Appellant’s house. Counsel reiterated his argument that 1st Respondent cannot establish his purchase and/or ownership of Appellant’s house on the basis of the aforementioned documents.
Learned counsel submitted that, Exhibits P1, and Exhibit D1, are evidence of the fact that the 1st Respondent lent the Appellant N400,000.00 for the purpose of trade for 6 months, on the condition that the 1st Respondent be given fifty percent of the profit made as interest per month. Whilst Exhibits P1, and D1 are evidence that the Appellant submitted the house in dispute valued at N1,000,000:00 (One Million naira) to the 1st Respondent as collateral for the sum of N400,000:00 received from the 1st Respondent on 2nd March, 2011, and which sum was to be repaid on or before 2nd September, 2011, failing which the 1st Respondent who was referred to as “Lender/Creditor Alh. Tanimu Danladi” shall pay N600,000:00 (Six hundred thousand naira) to the Appellant and assume ownership of the house. See Exhibit P1, and Exhibit D1.
In his further submissions, counsel referred to the statement of 1st Respondent under cross-examination on page 122 lines 9-13 in the record of appeal, wherein 1st Respondent answered that: “the Letter of Agreement dated 3rd March, 2011 (Exhibit P1) was made before the judge. That the Court signed it”. Counsel pointed out the fact that Exhibit P1, was endorsed by the Commissioner of Oaths at Upper Customary Court G.R.A. Zaria, and not the Hon. Judge. See page 23, of the record of appeal. To reiterate his argument, counsel referred to the signature of the Creditor in the document dated 3rd March, 2011 that it is not the same as that of the Giver in the document dated 6th March, 2011. In fact, that the signature of the 2nd Respondent, Mr. Sunday Samuel who signed as a witness can be seen at the Creditor’s portion in the document dated 3rd March, 2011 made before the Commissioner of Oaths, Upper Customary Court, G.R.A. Zaria. The Creditor’s signature is not the same as that of the 1st Respondent.
Apart from that, It was the argument of counsel that the 1st Respondent is not a registered money lender under the Kaduna State Money Lender’s Law, Cap 100, Laws of Kaduna State. That the 1st Respondent, not being a registered/licensed money lender under Sections 2-5 of the Kaduna State Money Lender’s Law, Cap 100 Laws of Kaduna State cannot seek to benefit from Exhibit D1 (Letter of Agreement dated 6/3/11). Counsel argued further that ”where a statute makes a particular contract… illegal or invalid, the Court will refuse to allow an action to be maintained thereon…. This is because, once illegality is brought to the attention of the Court it overrides all questions of pleadings including any admissions made therein”. He cited the case of Sodipo v. Lemminkainen (1986) 1 NWLR (PT15) 220; Alh. Toafik Alao v. ACB (1998) 3NWLR (PT542) 339 ratios 5 and 6.
It was strenuously argued by counsel that the lower Court was in error when it relied on Exhibit D1 (Letter of Agreement dated 6/3/11) to establish the sale of the Appellant’s house to the 1st Respondent. Counsel referred to paragraph 7 of the Appellant’s Reply to the 1st Respondent’s Statement of Defence, the Appellant denied paragraph 13 of the 1st Respondent’s Defence, to the effect that the Appellant and his witnesses brought a typed Exhibit D1 for the 1st Respondent’s signature. Referring also to paragraph 12 of the Appellant’s Reply to the 1st Respondent’s Statement of Defence, the Appellant stated that: “…all the agreements were written at the instance of the Respondents who insisted that the Appellant must endorse the same.” On the basis of this aforesaid contention counsel submitted that the lower Court was in error because there was a categorical denial of paragraph 13 of the 1st Respondent’s Statement of Defence and Counterclaim.
Learned counsel argued that the contents of Exhibits P1, and D1 which purport to sell/transfer title of the Appellant’s house to the 1st Respondent thereby violates Section 2 and 15 of the Land Registration Law of Kaduna State, Cap 85 Laws of Kaduna State and Section 2 of the Illiterates Protection Law, Cap 74 Laws of Kaduna State 1999. Counsel reiterated the fact that the documents Exhibit R1, and R1b sought to be relied upon by the 1st Respondent to establish his ownership of the Appellant’s house have failed to comply with the provisions of the Land Registration Law Cap. 85 Laws of Kaduna State 1991.
In order to debunk the finding of the lower Court on sale transaction between the Appellant and the 1st Respondent, counsel referred to the provisions of Section 2 of the Illiterate Protection Law Cap 74 Laws of the Kaduna State, 1991 which is intended to protect illiterate persons from fraudulent transaction such as in the instant case.
The findings of the lower Court on exhibits P1, P2, P3 and P4 was attacked by counsel that it occasioned a miscarriage of justice. That the Court below was in error when it held that there is no evidence before the Court that the Police at Tudun Wada Police Station Zaria harassed and intimidated Appellant to sign Exhibits R1 and R2, and that the Appellant’s counsel submission that Sales Agreement dated 25/10/11 and Exhibit R1b were forcefully made after the Appellant was arrested and detained at the Police Station Tudun-Wada Zaria was not borne out of evidence before the Court. It was reiterated by counsel that, it is in evidence before the lower Court that the 1st Respondent caused the arrest and detention of the Appellant at the Police Station, Tudun Wada Zaria, and the Appellant was not released until he agreed to comply with the terms in Exhibit P1 and D1. That this can be surmised from the evidence of PW1 at page 19 of the record of appeal. It was further stated by counsel that Exhibits R1 and R2b were written after the incident at the Police Station Tudun Wada, Zaria, following the directive of the police. Counsel contended that this fact was admitted by the 1st Respondent in Exhibits R1 and R21b. He pointed out that facts admitted need no further proof. In support of his contention, counsel cited the case of Biezan Exclusive Guest House Ltd v. Union Homes Savings and Loans Ltd (2011) 7 NWLR (Pt. 1246) 246; Aromolaran v. Oladele (1990) 7NWLR(Pt. 162) 262.
In his further submissions, counsel stated that the lower Court was in error when it held that there was sale of the disputed house to the 1st Respondent by the Appellant. He pointed out the fact that the Appellant denied that he sold the disputed house to the 1st Respondent because the content of Exhibits P1, and D1 were disclosed to Appellant at the Police Station Tudun Wada, Zaria where the policemen insisted that the Appellant must comply with the contents of the Letter of Agreement, failing which the Appellant would be ruthlessly dealt with by the policemen. It was reiterated by counsel that, the transaction that lead to the instant suit was in respect of production and sale of yellow soap, and not the sale of the Appellant’s house to the 1st Respondent. Counsel argued that the Respondents took advantage of the Appellant’s status as an illiterate to insert the term that if the Appellant failed to refund the sum of N400,000:00, that the Appellant shall be given the sum of N600,000.00 as balance of the purchase price of his house.
The learned counsel referred to the evidence adduced before the Court that, the 2nd Respondent absconded with the 1st Respondent’s money after it had been given to him by the Appellant, and it was thereafter that the Appellant was arrested and detained at the instance of the 1st Respondent. Also counsel pointed out that the lower Court granted to the 1st Respondent a relief he did not pray for. In that the lower Court held that there was no evidence supporting the 1st Respondent’s counter-claim before it and yet refused to discountenance the same. The 1st Respondent did not pray for declaration for confirmation of sale between him and the Appellant. He cited in aid the case of Onyekwuluni & Ors v. Ndolor & Ors (1997) 7 NWLR (pt 512) 250; Ekpenyong v. Nyong (1975) 2 SC 71 at 81-82 and Kalio v. Daniel- Kalio (1975)2 SC15 at 17-19.
Counsel urged this Court to allow the appeal and enter judgment in favour of the Appellant as per his Statement of Claim dated 25th July, 2012.
On his part 1st Respondent’s counsel on the lssue for determination, submitted that the Appellant in suit No: KDH/Z/176/2012 has woefully failed to establish his case on the preponderance of evidence as required by Section 133 of the Evidence Act, 2011.
Learned counsel submitted that it is clear that the dispute between the Appellant and 1st Respondent is on declaration of title and possession of a house situated at Anguwan Pampon Gwaiba, Tudun Wada, Zaria as stated in the Statement of Claim at page 7 of the record of appeal and paragraph 21 of the 1st Respondent’s Statement of Defence at page 39 of the record of appeal.
It was argued by counsel that, the Appellant has the burden of establishing the alleged fact that he is an illiterate, and his transaction with the 1st Respondent is that of money lending. But the Appellant failed, refused and neglected to establish at the trial, and the learned trial Judge is right to have held that the agreement wherein the Appellant transferred his right, title, interests in and over to the 1st Respondent is lawful, legal and enforceable.
The learned counsel submitted that the identity of the property subject matter of suit No: KDH/Z/176/2012 is not disputed by the parties as they all agreed it is lying and situate at Anguwan Pampon Gwaiba (Tudun Wada) Zaria, therefore the onus on the parties in the case is to establish how they came about the property in any of the ways enunciated in the case of ldundun v. Okumagba (1976) 9-10 SC 227. Counsel surmised that the 1st Respondent established that he has acquired the property by way of purchasing same from the Appellant.
It is the submission of learned counsel that the trial Judge arrived at the correct conclusion that the 1st Respondent by virtue of Exhibit D1, and the evidence of DW1, DW2, and DW3 has successfully established that the Appellant sold the property to him.
Finally counsel submitted that this appeal is lacking in merit therefore this Court should confirm the sale transaction in respect of the property by the parties and affirm the decision of the High Court Kaduna in Suit No: KDH/Z/176/2012.
In his Reply Brief, Appellant’s Counsel stated that facts admitted need no further proof. He referred to 1st Respondent’s brief of Argument paragraphs 2.1 and 2.2 wherein the 1st Respondent admitted that the agreement between the Appellant and himself was to finance soap making business and not outright sale of the Appellant’s house to the 1st Respondent. In support of his contention, counsel cited the case of Ndukwe v LPDC & Anor (2007) LPELR-1978 SC; DIN V African Newspapers of (Nig) Ltd (1990) LPELR-974 (SC).
Counsel further argued that the 1st Respondent did not pray or ask for declaration of confirmation of sale between him and the Appellant, yet the trial Court granted prayer not asked. He cited the case of Onyekwuluni & Ors v. Augustine Ndolor & Ors (1997) 7 NWLR (PT 512) 250; Ekpenyong v. Nyong (1975) 2SC 71 at 81-82 and Kalio v. Daniel-Kalio (1975) 2 SC 15 at 17-19.
It was also pointed out that, Appellant established his case on the preponderance of evidence, contrary to 1st Respondent’s assertion that Appellant failed to do so in that evidence abounds that, the 2nd Respondent absconded with the 1st Respondent’s money meant for the soap production and sales business. That the 1st and 2nd Respondents took advantage of the Appellant’s status as an illiterate person to insert a clause, to the effect that the Appellant would sell his house to the 1st Respondent. That there is evidence that the 1st Respondent resorted to using criminal and rent Tribunal cases as well as the use of policemen at Tudun Wada Police Station to intimidate and harass the Appellant into surrendering the disputed house to him.
Learned counsel pointed out that, the Appellant at the trial Court in paragraph 1, of the Appellant’s Statement of Claim stated that he is an illiterate petty trader. That the law is trite that facts admitted need no further proof. And the trial Court on page 148, lines 4-7 of the record of appeal, found that the Appellant is an illiterate. It was further pointed out by counsel that in paragraphs 4.4 to 4.6 of the 1st Respondent’s brief of Argument, the 1st Respondent stated that the trial Court was right when it relied on Exhibit D1, and the evidence of DW1 to DW3, to establish that the Appellant sold the disputed house to the 1st Respondent. Counsel argued that the trial Court was wrong to have held that the Appellant sold the house to the 1st Respondent having categorically found that the Appellant was an illiterate. He cited Section 2, of the Illiterate Protection Law Cap 74, Laws of Kaduna State 1991, to buttress his argument that all the documents admitted in evidence of sale transaction between the Appellant, and the 1st Respondent, did not contain the mandatory provisions of Section 2, of the Illiterate Protection Law of Kaduna State. He cited the case of Ezeigwe v. Awudu (2008) LPELR – 1200 SC.
RESOLUTION OF ISSUE
The dispute between the Appellant and 1st Respondent is on declaration of title and possession of a house situated at Anguwan Pampon Gwaiba, Tudun Wada, Zaria as stated in the Statement of Claim at page 7 of the record of appeal, and paragraph 21 of the 1st Respondent’s Statement of Defence, at page 39 of the record of appeal. From the evidence of Appellant in his depositions in paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 15 of his Appellant’s Deposition made 25th July, 2012 and paragraphs 7, 8, and 11 of the 1st Respondent’s Deposition on Oath, made on 7th September, 2012 it is clear that the transaction between the Appellant, and 1st Respondent in this suit was in respect of financing, production and sale of yellow soap. The 1st Respondent (DW3) admitted under cross-examination that the agreement between him and Appellant was for the purpose of soap making business. DW2, also under cross-examination admitted that “the N400,000.00 given to the Appellant was for capital. It is clear from the evidence adduced before the lower Court that what actually transpired between Appellant and the Respondents was a business transaction for the financing of the production of yellow soap, and the financier 1st Respondent was given fixed interest of N40,000.00 per month. l have carefully perused the pleadings and evidence of the parties, there is no where the issue of sale of Appellant’s property was mentioned.
In the circumstance of this case, can the 1st Respondent rely on the contents of the exhibits P1, D1, R1 and R1b to establish purchase and ownership of the Appellant’s house? Exhibit P1 (Letter of Agreement dated 3rd March, 2011) and Exhibit D1 (Letter of Agreement dated 6th March, 2011) state clearly that 1st Respondent lent Appellant N400,000:00 (Four Hundred thousand naira) for the purpose of financing production and sale of yellow soap for six months, on the condition that the 1st Respondent is paid 50% of the profit made as interest per month. Exhibits P1, and D1 clearly state that the Appellant submitted the disputed house valued at N1,000,000.00 (One Million Naira) to the 1st Respondent as collateral for the loan of N400,000.00 (Four Hundred Thousand Naira) given to Appellant by 1st Respondent on 2nd March, 2011. The loan was to be repaid on or before 2nd September, 2011, failing which the 1st Respondent who was referred to as “Lender/Creditor Alh. Tanimu Danladi” shall pay N600,000:00 (Six hundred thousand naira) to the Appellant and assume ownership of the house.
The 1st Respondent under cross-examination on page 122 lines 9-13 of the record of appeal stated that “the letter of agreement dated 3rd march, 2011 (Exhibit P1) was made before the Judge. That the Court signed it”. DW2, stated under cross-examination that he was in Court when the Appellant was taken to Upper Customary Court in respect of the sum of N400,000.00. I have calmly examined Exhibit P1, it shows it was endorsed by the Commissioner for Oaths at Upper Customary Court G.R.A. Zaria and not by the Hon. Judge.
Exhibit D1 states that the Appellant “promised to pay 1st Respondent fifty per cent of the profit made as interest per month up to the end of the six months.” and if Appellant defaults the 1st Respondent shall pay Appellant N600,000.00 (Six hundred thousand Naira) as balance of the disputed house.
In Exhibit P1 dated 3rd March, 2011, the Appellant was described as Debtor, he entered into a Financing Agreement with the 1st Respondent, described as Creditor. The operative parts of Exhibit P1 the Agreement in the Customary Court of Appeal, Kaduna State, Zaria Division dated 3/3/11 reads thus:
“I Halilu Usman of Pompon Guweva, Tudun Wada Zaria hereby make Oath as follows:
1. That l am the rightful owner of the house situated at Sabuwan Ungwa Pompon Guweva, Tudun Wada, Zaria valued at One Million Naira only (N1,000,000.00).
2. That l have submitted the said house as collateral having collected the sum of Four Hundred Thousand Naira only (N400,000.00) from Alhaji Danladi Tanimu of Nuhu Bamalli Polytechnic, Zaria on 2nd March, 2011, and to payback on or before 2nd September,2011.
3. That the said house shall not be sold nor given as collateral again for a period of six (6) months until the money is paid back/refunded.
4. That failure to payback/refund the sum of Four Hundred Thousand Naira only (N400,000.00) collected after the agreed period of six (6) months, a completion of Six Hunderd Thousand Naira only (N600,000.00) shall be made by the lender/creditor Alhaji Danladi Tanimu to meet the value of the said house One Million Naira only (N1,000,000.00) and subsequently claim and assume ownership of the said house. That l make this Agreement vide Oath Act 1963.”
Exhibit D1, states as follows:
“LETTER OF AGREEMENT dated 6/3/11 I, Hallilu Usman of the above address on 2nd of March, 2011 collected the sum of Four Hundred Thousand Naira Only (N400,000.00) from Alh. Tanimu of Nuhu Bamali Polytechnic, Zaria for the purpose of trade for the duration of six months that is from 2nd of March, 2011 to September 2nd, 2011, and l gave him my house document which is valued at One Million Naira Only) and promise to pay fifty percent (50%)of the profit made as interest per month up to the end of the six months ,if l fail to pay up the sum of Four Hundred Thousand naira (N400,000.00) given to me, l should be given six hundred thousand naira (N600,000.00) as a balance for my house that is l have sold my house for One Million Naira (N1,000,000.00). May Almighty Allah help me.”
The Appellant raised the issue that the 1st Respondent is not a registered money lender under the Kaduna State Money Lender’s Law, Cap 100 Laws of Kaduna State. By this, the Appellant invites this Court to hold that the money lending agreement he entered with the 1st Respondent is illegal same having been entered when the 1st Respondent had no valid licence.
I have gone through the 37 paragraphs, in the Appellant’s Statement of Claim, but cannot find any averment where a challenge of this nature was made by the Appellant. The trial Court in its judgment did not decide on that aspect of the law either, and this is because it was not the case before it.
In the light of the above arguments of counsel, in support of an issue for determination must as of necessity relate to the issue and the decision appealed against. A counsel is not permitted in his argument on an issue to delve into matters of fact or law that were never considered by the trial Court. Counsel ought to restrict himself in matters in controversy, that formed the ratio of the trial Court’s decision.
From the averments in the pleadings, the relationship between the parties is contractual and in general legal parlance binding. Parties and Courts are bound by the terms of the contracting parties, and this is so because the contract is a legally binding agreement between parties, by which rights are acquired by a party in return for acts or forbearances on the part of the other. It is a bilateral affair which requires ad idem of parties. See Odutola V. Papersack (Nig) Ltd (2006) 18 NWLR (Pt 1012) 470 and Orient Bank (Nig) Plc V. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37.
A contract may be oral or written. Where a contract is evidenced in writing, in the construction of the terms of the contract, Courts normally don’t look beyond the written document. There is Exhibit D1, which is the agreement between the parties. The Respondent in paragraph 13, of his Statement of Defence, stated that on 2/3/11, the Appellant and his witness brought a typed Agreement to him to sign. The lower Court rightly found that, the Appellant did not react to this averment, and did not adduce evidence to debunk the averment in his evidence, and cross-examination of the 1st Respondent. The piece of evidence that Appellant took a typed Agreement Exhibit D1, to 1st Respondent to sign is unchallenged and uncontroverted. The issue whether Exhibit D1, was read over, and explained to Appellant and the person, who wrote Exhibit D1, does not arise. The Appellant must have known the content of Exhibit D1, before he took it to the 1st Respondent to append his signature. In my view, the lower Court found correctly that the Illiterate Protection Law, Cap 74, of Kaduna State 1991, cannot apply in this circumstance, to render same void. Furthermore, Exhibit D1, cannot be taken as document affecting land within the meaning of Section 2, of Land Registration Law Cap 85.
The learned trial Judge stated on page 141, of the record of appeal, that the 1st Respondent was not asked to state which letter of agreement he and Appellant signed. Exhibit P1, was not shown to the plaintiff and 1st Respondent to identify their signature. It was rightly pointed out by learned trial Judge that evidence was not led to establish a nexus with Exhibit P1. That the exhibit, ought to have been tendered through the plaintiff in his examination in chief, to identify his signature, also it ought to have been shown to the 1st Respondent, to also identify his signature. Premised on the foregoing, learned trial Judge rightly found that, there is a vacuum or gap, created in respect of Exhibit P1. The learned trial Judge came to the right decision that, Exhibit P1, did not help the case of the 1st Respondent. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Appellant’s counsel argued that the facts, and evidence placed before the lower Court, and all the documents tendered by the 1st Respondent, particularly, Exhibits R1, and R1b (Sale Agreement dated 25th October, 2011) sought to be relied upon by the 1st Respondent to establish his ownership of Appellant’s house have failed to comply with the mandatory provisions of the Land Registration Law Cap. 85 Laws of Kaduna State 1991. The learned trial Judge on page 142 of the Record of appeal rightly found that Exhibits R1 and R1 (b) are not the same, and the words therein were not verbatim. That Exhibit R1 (b) is in a language other than English which is the language of the Court. The English version of Exhibit R1 (b) was not tendered in evidence. The learned counsel for both parties wrongly referred to Exhibit R1 as the English translated copy of Exhibit R1 (b). The Court found that Exhibit R1 (b) was admitted in evidence without the English translated version. In Ojengbade v. Evan (2001) 12 SCNJ421 540, the Supreme Court per lguh JSC stated thus:-
“There can be no doubt the official language of superior Courts of record in Nigeria is English, and that if documents written in any language other than English are to be tendered and properly used in evidence, they must duly be translated in English either by a competent witness called by the party to the proceedings, who needs them to prove his case, or by the official interpreter of the Court. A Judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of a witness and an arbiter at the same time in the proceeding. See also Damina v. The State (1995) 8 NWLR(Pt.415) 513 at 539.”
Exhibit R1, is Sale Agreement written in English Language. It was signed by Appellant as vendor, and his witness also signed. 1st Respondent signed as purchaser and his witness also signed. The lower Court rightly found that, there is no evidence that the police forced the Appellant to sign Exhibit R1 in the police Station. I have carefully with a toothbrush combed through the evidence before the lower Court, l agree with the learned trial Judge that the submission in paragraph 4.7 of the plaintiff’s counsel’s final written address that the sales agreement dated 25th October, 2011 and Exhibit R1 (b) were forcefully made after the plaintiff was arrested and detained at the police station Tudun Wada Zaria is not borne out of evidence before the Court. Similarly, there is also no evidence before the lower Court that the police at Tudun Wada Police Station Zaria harassed and intimidated the plaintiff to sign Exhibits R1 and R1 (b). Undisputedly the holding of the learned trial Judge that, the statements in paragraph 25, of the plaintiff’s statement on oath, are not credible and reliable evidence cannot be faulted.
Based on the evidence adduced and the decided cases espoused, the learned trial Judge is rightly of the view that the Plaintiff is an illiterate, and exhibits R1, and R1 (b) were not read to him, and he appeared to understand it before he signed.
I have carefully perused Exhibit R1, it is no doubt that it is a registrable instrument, but was tendered for the purpose of establishing the transaction between the vendor and the purchaser, and it also proves the fact that some money exchanged hands between the parties. An unregistered instrument can operate as evidence of payment of money. In the case of Mokom v. Odili (2010) ALL FWLR (Part 536) 542, it was held that the non-registration of a registrable land instrument affect only the legal or statutory title not the equitable one. That the legal title may be imperfect, but that the equitable title of the owner is available.
The legal position is that the parties each lay claim to entitlement. They both have the evidential burden of establishing their claim, and succeeding on the strength of their case as opposed to the weakness of the case of the other party. See Fagunwa v. Adibi (2004) 17 NWLR (pt4903) 544 at 568.
The Appellant seeks declaration as a bonafide owner and entitled to possession of the disputed house situate at Anguwan Pampon Gwaiba Tudun Wada, Zaria and an order setting aside any sale or agreement purportedly entered into between the Appellant and the 1st Respondent same being illegal, unlawful and null and void.
Appellant’s counsel contended that, the Appellant denied that he sold the disputed house to the 1st Respondent because the contents of Exhibits P1 and D1 (Letters of Agreement dated 3/3/11 and 6/3/11 respectively were disclosed to him at the Police Station Tudun Wada Zaria, and the policemen insisted that the Appellant must comply with the contents of the Letters of Agreement, failing which the Appellant will be ruthlessly dealt with by the policemen. The lower Court rightly found that Exhibit D1 is relevant, credible and compelling. It proves that the sum of N400,000.00 was given to the plaintiff, by the 1st Respondent for the purpose of trading for a duration of six months, and with an obligation to pay back or failure to pay back after six months the Appellant to receive the sum of N600,000.00 from the 1st Respondent to make up the sum of N1,000,000.00 as consideration for the sale of plaintiff’s house to 1st Respondent. Furthermore, the evidence of DW1, DW2, DW3 and that of PW1 and PW2 on the receipt of the sum of N560,000.00 at 1st Respondent’s house. Also the Appellant and PW1’s presence in 1st Respondent’s house to receive the balance sum lends credence to the evidence of DW1-DW3, and for that reason support Exhibit D1.
I agree with the finding of the learned trial Judge that Exhibit R1 offends the provision of Section 2 of Illiterate Protection Law of Kaduna State for that, the document is inadmissible and cannot therefore be placed on the imaginary scale of justice.
The learned trial Judge rightly found that the evidence of the Appellant is weak as to whether there was sale of the house by him to the 1st Respondent. He also rightly disbelieved the evidence of the plaintiff that it is the fear and harassment of police and connection of the 1st Respondent that led him into entering into the series of agreement for the sale of the house to the 1st Respondent.
I am of the view that, the learned trial Judge arrived at the correct finding that the Appellant’s presence in the 1st Respondent’s house to collect the balance of the money displaced all doubts about the agreement for the sale of the disputed house. Without positive, direct and cogent evidence, the plaintiff will not be entitled to the reliefs he claimed. I agree with the decision of the trial Court not to set aside the sale of the house to the 1st Respondent and also not to compel the 1st Respondent to collect the sum of N560,000.00 given to the Appellant pursuant to the agreement.
I agree with the learned trial Judge that Exhibit D1, and the oral evidence of DW1, DW2 and DW3, the 1st Respondent has proved that the Appellant sold the house in dispute to 1st Respondent.
The issue for determination is resolved against the Appellant. This appeal is unmeritorious and is hereby dismissed.
The judgment of the Kaduna State High Court in Suit No KDH/Z/176/2012 delivered on the 30/3/2017 is affirmed.
Costs is assessed at N20,000.00 in favour of the 1st Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have read in advance, the judgment of my learned brother, FATIMA AKINBAMI, JCA where the facts giving rise to this appeal, and the issues in contention have been set out and determined. I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
Appearances:
Dr. A. Is’haq. For Appellant(s)
Muhammad Turkur Jibril – for 1st Respondent. For Respondent(s)