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YUSUF & ANOR v. IBRAHIM (2020)

YUSUF & ANOR v. IBRAHIM

(2020)LCN/15825(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/G/338/2014

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. MALAM MURTALA YUSUF 2. ALI MALA APPELANT(S)

And

HABU IBRAHIM RESPONDENT(S)

 

RATIO:

EVALUATION OF EVIDENCE

What evaluation of evidence entails was thus stated in the case of Ashaka Vs Nwachukwu (2013) LPELR 20272 (CA).
“AUGIE J.C.A, in the case of Ilorin v. Tella (2006) 18 NWLR Pt. 1011 P. 272 @ 291 had this to say on what evaluation of evidence entails: “Evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other.” Per BDLIYA, JCA (Pp. 51-52, paras. F-B)
See also Adenugba & Anor Vs Okelola (2007) LPELR – 8290 (CA) PER OKORO JCA (as he then was). JAMES GAMBO ABUNDAGA, J.C.A. 

DUTY OF THE APPELLATE COURT WHERE THE TRIAL COURT FAILS IN ITS DUTY OF EVALUATION

The law is that where a trial Court fails in its duty of evaluation, the Appellate Court can undertake such an exercise and makes appropriate findings. See on this, the case of Abdulkarim & Ors Vs Anazodo & Anor (2006) LPELR -7583 (CA), Per Peter-Odili, JCA (as she then was) (P 18-20) paras B-C. JAMES GAMBO ABUNDAGA, J.C.A. 

WHETHER A COUNTER CLAIM IS A SEPARATE AND DISTINCT ACTION

The law is settled that a counter claim is a distinct and separate action and the burden and standard of proof is the same as in the main claim. The defendant/counter claimant must also discharge the burden by cogent and credible evidence: see the cases of Okechukwu & Anor vs Nwosu & Anor (2018) LPELR – 44893 (CA), Per Bolaji-Yusuf, JCA (p 27) paras B-E, Dozzy Group of Companies Ltd Vs Okeke (2016) LPELR – 41522 (CA). JAMES GAMBO ABUNDAGA, J.C.A. 

WHAT A PLEADING SHOULD ENTAILS

What pleadings should contain were clearly stated in the case of Bernard Okoebor Vs Police Council & Anor (2003) LPELR – 2458(SC) thus:-
“It is not the law of pleadings that laws must be pleaded before a party can rely on them. While the law of pleadings requires that some specific laws should be pleaded (e.g. statutory defence like the Limitation Statute), it is not the province of the law of pleadings, that any law to be relied upon by a party must be pleaded. As a matter of law, pleadings essentially contain facts relied upon by the parties and they are stated positively, precisely, distinctly and briefly. In view of the fact that the Police Regulations are enacted pursuant to the Police Act, Cap. 359 and by virtue of the provision of Section 18(1) of the Interpretation Act, the Regulations qualify as law and need not be pleaded by the appellant. As a matter of law, a good pleading should contain facts not law. There is a distinction between pleading law, which is not permitted by the law of pleadings and raising a point of law in a pleading, which is permitted by the law of pleadings. Pleading law obscures and conceals the facts of the case while raising a point of law defines or isolates an issue or question of law on the facts as pleaded. See Chief Nwadiaro v. The Shell Petroleum Development Company of Nigeria Limited (1990) 5 NWLR (Pt. 150) 322.”
Per TOBI, J.S.C. (P.30, paras. A-F).
See also Agu Vs Ikewibe (1991) LPELR – 253 (SC), Per Nnameka-Agu, J.S.C. (pp 53-53), Para A-B), Finnih Vs Imade (1992) LPELR – 1277 (SC) Per Karibi-Whyte, J.S.C. (pp 34 -35, paras F-A). JAMES GAMBO ABUNDAGA, J.C.A. 

LEGAL EFFECT OF FACT AND LAW IN PLEADING

While it is a correct principle of law that facts and not law should be pleaded, the facts upon which the law rests must be pleaded because law cannot act in vacuum. It is also the law that facts not pleaded cannot be put in evidence. I dare to also state that a relief sought in a claim cannot be elevated to the status of a pleading. A relief is dependent upon proof of pleaded facts, and therefore where a relief asked for is not backed up by pleaded facts and established by evidence, such a relief is hardly grantable. JAMES GAMBO ABUNDAGA, J.C.A. 

THE PURPOSE OF PLEADING

It is settled that the purpose or aim of pleadings is to avoid surprise. See the case of Delek (Nig) Ltd vs. OMPADEC (2007) LPELR – 916 (SC), Per Onnoghen, J.S.C. (pp. 34 – 35, paras G-A). JAMES GAMBO ABUNDAGA, J.C.A. 

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal stemmed from the judgment of Borno State High Court, Holden at Maiduguri in suit No. BOHC/MG/CV/15/2015 delivered on 26th September, 2014 by Hon. Justice Hadiza Ali Jos.

In brief, the facts of the case is that the 1st Appellant and Respondent were business partners until the relationship went sore following the failure of the Respondent to account for and pay up the sum of N2,696,000.00 due from the Respondent to the 1st Appellant. (The Respondent however gave a different figure of the amount he owed the 1st Appellant, he stated the amount to be N2,660,000.00) At a scheduled meeting on 12th November, 2012 the Respondent paid the sum of N200,000 of the amount owed, and an agreement same day between them was reached and reduced into writing by and in which the Respondent surrendered his documents of title in respect of his landed property covered by a certificate of occupancy to the 1st Appellant.

​According to the Respondent, the title documents were to be kept by the 1st Appellant till 12th December, 2012 when they would meet to further discuss how the balance of 1st Appellant’s money will be paid, in case the Respondent was unable to pay off the debt before the said 12th December, 2012. However, according to the 1st Appellant, the agreement was reached between them on 21st November, 2012 to the effect that the Respondent’s title documents were surrendered to the 1st Appellant and the property valued at N1,800,000.00 pending 12th December, 2012 when, if the Respondent was unable to offset the amount owed, the landed property would be considered sold to the 1st Appellant, at a sum of N1,800,00.00 and further arrangement would be made as to how the balance after the deduction of the N1,800,000.00 would be paid. As admitted by both of them, they did not meet again after the agreement. On 19th December, 2012, the 1st Appellant sold the Respondent’s property to the 2nd Appellant for N2 Million, and according to the Respondent, the 1st Appellant did this without causing the two of them to meet on 12th December, 2012 as earlier agreed.

The Respondent aggrieved with the 1st Appellant’s action decided to sue him and the person to whom his landed property was sold vide a writ of summons. The writ of summons was issued on 12th March, 2013.

In the amended statement of claim with which the writ of summons was issued, dated and filed on 9th September, 2013, the Respondent claimed severally and jointly against the Appellants as follows:
a. A declaration that the 1st Defendant does not have right to transfer by way of sale, title documents over plot No: 860 on BOSA/153 covered by right of occupancy No: BO/27044 to the 2nd Defendant or any other party.
b. A declaration that the sale of claimant’s land No: 860 on BOSA/153 covered by Right of Occupancy No: BO/27044 by the 1st Defendant to the 2nd Defendant is void ab initio.
c. An order that the 1st Defendant returns to the claimant his title documents over plot No: 860 on BOSA/153 covered Right of Occupancy No: BO/27044.
d. An order of perpetual injunction restraining the 2nd Defendant or anybody acting on his behalf from interfering with the claimants land No: 860 on BOSA/153 covered by Right of Occupancy No:BO/27044
e. An order of this Court compelling the 2nd Defendant to remove the roofing and other building materials he erected on the claimant’s land No: 860 on BOSA/153 covered by Right of Occupancy No. BO/27044.
f. An order that the claimant and the 1st Defendant should meet at an appointed time as per their agreement in paragraph 3 above to decide how to settle the outstanding sum of N2,460,000.00 (Two Million Four and Sixty Thousand Naira) to be paid by the claimant to the 1st Defendant.

The Appellants entered appearance and filed their processes in defence of the Respondent’s claims. The 1st Appellant filed his statement of defence, and also a counter claim on 4th October, 2013; by which he counter claimed as follows:
i. AN ORDER that the agreement of 21st November, 2012 is binding on all parties to it.
ii. WHEREOF the counter claimant claims the sum of N496,000.00 (Four Hundred and Ninety Six Thousand Naira) only being the balance of the money defendant could not raise.
iii. General damages of N1,000,000.00
iv. Cost of suit.

In answer to the statement of defence and counter claim, the Respondent filed a reply and defence to counter claim on 7th November, 2013.

The 2nd Appellant filed his statement of defence on 4th October, 2013.

Pleadings fully exchanged, the trial Court proceeded to hearing, at the end of which the trial judge found in favour of the Respondent (see page 125-146 of the record of appeal).

Piqued by this decision, Appellants approached this Court for redress by filing a notice of appeal containing six grounds of appeal, inclusive of the omnibus ground of appeal on 17th November, 2014. The record of appeal duly compiled and transmitted the Appellants and Respondent filed their respective briefs of argument.

At the hearing of the appeal on 9th September, 2020, the Appellants’ brief of argument, settled and filed by S. M. Konto on 29th January, 2015 was adopted by him in urging the Court to allow the appeal and set aside the judgment of the trial Court.

HN Onwoye, Esq who held brief for B. Grema, Esq who settled and filed the Respondent’s brief of argument on 17th March, 2017, adopted the said brief and urged us to discuss the appeal.
The Appellants formulated four issues for determination.
The issues are:
1. Having regard to the evidence before the Court whether due execution of Exhibit B and B1 have been proved by the 1st Appellant and the trial Court was wrong to make comparison of the signatures on documents signed under different names (distilled from Ground 1 and 3)
2. Whether by the pleadings of the parties, the validity of the sale of the land was made an issue and if in the affirmative whether the contract of sale of the land is invalidated for lack of consent of Governor at the contract stage. (Distilled from Ground 2)
3. Whether the trial Court had properly evaluated and weight (sic) the evidence adduced by the parties. (Distilled from Grounds 2 & 6)
4. Whether the 1st Appellant have (sic) proved his counter claim and therefore entitled to the reliefs claimed. (Distilled from Ground 4)

The Respondent adopted the Appellants’ four issues in exactly the same order. I will start the determination of this appeal with a review of submissions of counsel on all the issues.

ISSUE ONE
Submissions of Appellants’ Counsel
It is submitted for the Appellants that the 1st Appellant had discharged the burden of proving due execution of Exhibit B (the agreement between the 1st Appellant and the Respondent dated 21st November, 2012). Reliance is placed on the 1st Appellant’s statement on oath adopted as his evidence. We are referred to page 22, paragraph 6 of the said statement on oath. It is contended that the 1st Appellant’s evidence aforesaid was not contradicted by the Respondent. It is also further submitted that the 1st Appellant called one Yakubu Buba as a Witness and in whose presence both parties (1st Appellant and the Respondent) signed and he too signed as witness. The Court is referred to page 80, lines 25 – 81 of the record of appeal. Counsel also refers the Court to the evidence of the Respondent in cross examination, whereat the said Respondent stated that he can read in Hausa and that Yakubu Buba wrote the agreement in his presence and that he signed it as written in Hausa language. Counsel refers the Court to page 77 lines 23-26 of the record of appeal.

We are further referred to the evidence of the Respondent whereat he stated that he could not remember the date of the agreement. Page 78, lines 12-13 of the record of appeal is referred to. On how, and what can be done where the signature is denied, we are referred to the case of Amadi Vs Orisakwe (2005) 4 M.J.S.C. P. 162 – 163, and Solana Vs Olusanya (1975) 6SC 55.

Counsel went on to point out that Yakubu Buba who testified as Dw2 wrote the agreement and was present when the Respondent signed the said agreement. It was therefore submitted that the trial judge was wrong when he held that the 1st Appellant failed to prove due execution of the agreement. It was equally submitted that it was wrong to compare the signature on Exhibits B and B1 with that of the Respondent in his statement on oath. He contended that Exhibit “B” and “B1” was signed by the Respondent as Abubabkar Ibrahim while his statement on oath was signed as Habu Ibrahim; and that the signature cannot be the same under different names.

Counsel concedes the power of the Court under Section 101(1) of the Evidence Act to compare signature but that when the Court identified the dissimilarities the Court should have called for the reaction of the parties to it and cannot proceed to compare without calling for the parties’ reaction. Counsel relies on the case of Babale Vs Eze (2012) All FWLR (Pt 635) p 287 at 347 – 348; Ndoma Egba Vs ACB PLC (2005) All FWLR (pt 283) 152 at 173 ​We are urged to resolve this issue in favour of the Appellants.

SUBMISSION OF RESPONDENT’S COUNSEL
For the Respondent, it is submitted that the burden of proving the probative value of Exhibits “B” and”B1” is on the 1st Appellant. On this, reliance is placed on the case of Nwawu vs Okoye (2009) 37 NSCQR 230 at 235, ratio 5.

In response to the evidence of the Respondent under cross-examination whereat he stated thus;
“I can read Hausa, my statement on oath there is an agreement between myself and the 1st defendant Yakubu Buba wrote the agreement, I was there when the agreement was written. I signed it, it was written in hausa language”, counsel submits that the Respondent did not refer to Exhibit “B” and “B1” but was referring to the agreement of 12th November, 2012. That the position is the same as respects the Respondent’s evidence under cross examination that he could not remember the date of the agreement that he signed. That by this statement the Respondent referred to the agreement between him and Ali Yusuf from whom he bought the land in dispute.

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In reference to the case cited by the 1st Appellant’s counsel, that is Amadi Vs Orisakwe (supra) and Solana vs Olusanya (supra), it is submitted that the two decisions are to the effect that signature can be proved by comparing the signature admitted by the alleged signatory to be his own with the one under contention, which was what the trial Court did in this case at page 145 lines 4-6 of the record of appeal.

It is further submitted for the Respondent in answer to the Appellant’s submission that the Respondent did not just deny the signature on Exhibit “B” and “B1” as his but by pleadings and evidence established that it was only the 1st Appellant that had a copy of the agreement they entered into with him, but that contrary to his promise to give him a copy he failed to do that. That the 1st Appellant did not deny the fact that he did not give him a copy of their agreement.

It is further contended for the Respondent that the Appellants’ argument that the Court was wrong to have compared the signatures of the Respondent because different names were used, is illogical because even the 1st appellant in his statement of defence admitted both names to be Respondent’s. That the Appellants cannot argue as they did on that issue because that issue was not canvassed at the trial Court. Counsel refers to the case of Suberu vs. the State (2010) 41 NSCQR (at 2) p 1169 at 1178 ratio 14.

In response to Appellants’ submission that the trial Court should have invited reaction of parties to the issue on dissimilarities in the signatures of the Respondent, it is submitted for the Respondent that the Respondent called for comparison of the signatures in his written address which was replied to by Appellants’ counsel who did not raise the issue of drawing parties attention to it. That the Appellant therefore acquiesced to an irregular procedure and cannot complain now. That the Respondent has not shown any miscarriage of justice, and as such not every mistake or error in judgment that necessarily determines an appeal in favour of the Appellant. We are urged to resolve this issue in favour of the Respondent.

ISSUE TWO
Submission of the Appellants’ counsel
It is submitted for the Appellants that the issue of the validity of the sale of the land was not made an issue by the pleadings of the parties, that the issue that the sale was not valid for failure to obtain Governor’s consent was only raised by the counsel in his address, and therefore the Court was supposed to deal only with matters raised in the pleadings. Counsel refers the Court to the case of Sosanya vs Onadeko (2005) All FWLR (pt 255) p. 1000 al page 1027.

It is further contended for the Appellants that assuming the trial Court can consider the validity of the sale though not pleaded, the sale of the land between the 1st Appellant and 2nd Appellant was a customary sale.

That in the case of customary sale of land, payment of purchase price in the presence of witnesses and taking possession of the land creates valid sale. Reliance is placed on the case of Onafowokan vs Shopitan (2009) All FWLR (PT. 450) 685 al p 704.

It is further argued that even if the sale was under received, in English Law, the trial Court was in error to declare it invalid. Counsel submits that Section 22 of the Land Use Act 1978 does not invalidate a contract for the sale of land; reliance for this is placed on the case of I.T.I vs. Aderemi (1999) 6 SCJ 46 at 68.

It is further argued that Section 22 of the Land Use Act requires consent of the Governor for alienation of a statutory right of occupancy and not grant right of occupancy. That the appeal herein is on land covered by grant right of occupancy which is prelude to the issuance of right of occupancy by the Governor. The Court is urged to resolve this issue in favour of the Appellants.

Submission of Respondent’s Counsel
It is contended for the Respondent that the validity of the sale of the land in dispute was made an issue in the pleading of the parties. That it was one of the reliefs prayed for by the Respondent and that the Appellant joined issues with the Respondent on it.

It is further contended that raising the issue of invalidity of the sale by reason of failure to obtain the Governors consent was proper because being an issue based on Section 22 of the Land Use Act 1978, it is an issue of law that cannot be pleaded. Cited in support of this submission is the case of Okoebor vs. Police Council & Anor (2003) 14 NSCQR (pt 1) per Niki Tobi, J.S.C. at page 458.

It is further contended that the sale was not only invalidated on ground of lack of consent of the Governor but on the ground that the Appellant was not a bonafide purchaser for value. Counsel refers the Court to page 144 lines 8-12 of the record of appeal. It is contended that there is no appeal against this finding, and in law, it remains valid. Cited is the case of Opara vs Schlum Berger Ltd (2006) 10 M.J.S.C. 37 at 50, and Ndiwe Vs. Okocha (1992) 7 NWLR (pt 252) 129 at 137-140.

Further argued is that Section 22 of the Land Use Act does not make any distinction between transaction under customary law and other types of transaction. What is material is whether the land is subject to right of occupancy issued by the Governor. That no doubt, the land in dispute herein is subject of right of occupancy issued by the Governor.

It is further argued that the issue of the sale of the land under customary law was never raised in the pleadings of the parties.
Therefore parties must limit themselves to matters pleaded and cannot go outside it.

Further submitted for the Respondent is that no issue was raised that the sale of the land in dispute was at the stage of contract. That the issue raised for the first time on appeal required leave of Court which leave had not been obtained and therefore cannot be raised and argued.

ISSUE THREE
Submission of Appellants’ Counsel
It is Appellants’ counsel’s submission that the trial Court did not evaluate and appraise the evidence adduced by the witnesses on the imaginary scale to determine which evidence to believe or which to reject in its judgment. That what the trial Court did was to summarize the evidence of the witnesses and addresses of counsel and proceed to make findings without evaluating the evidence of the witnesses. Counsel refers to page 143-146 of the record of appeal.

That the Court also took into consideration the evidence of one Waziri Ibrahim who was not called as a witness. We are referred to page 128 lines 4 of the record of appeal.

It is further submitted that the judgment of the trial Court is full of material inconsistencies and inaccuracies which warrants this Court’s interference.

​It’s submitted that the judgment of the Court is not supported by any evidence properly evaluated and weighed. That the findings is thus perverse, as same is based on application of wrong principles of law and consideration of totally extraneous matters.

Submissions of Respondent’s Counsel
It is submitted for the Respondent that the findings of facts by the trial Court were based on the pleadings and evidence adduced by the parties. Counsel refers to page 143 lines 21-24, page 144, 145 and 146 of the record of appeal.

Counsel concedes that the Court mistakenly quoted the statement on oath of Waziri Ibrahim who did not testify. However, he submits that the cross examination is that of Pw4. Counsel however submits that the Appellants have not shown any miscarriage of justice occasioned by this mistake. Counsel further submitted that the finding of the trial Court on Exhibits “B” and “B1” and the validity of the sale of land were based on evidence and pleadings.

ISSUE FOUR
Submission of Appellants’ Counsel
Counsel’s submission starts with a statement of the law that the quantum of proof appropriate to be attained in order to give judgment in a counter claim in favour of the defendant must be of the type required of the plaintiff in every claim. That is to say, that the standard of proof in a counter claim is on the preponderance of evidence. Reliance for this submission is placed on the case of Maobison Inter link Association Ltd Vs. U.T.C (Nig) Ltd (2013) All FWLR (pt 694) 52 al P. 60.

Counsel submits that the trial Court without any attempt to evaluate the evidence before it arrived at the conclusion that the counter claimant (1st Appellant) failed to prove due execution of Exhibit “B” and “B1”. Counsel further adopts his earlier submission under issue one. We are therefore urged to resolve this issue in favour of the Appellants.

On the whole, counsel urged the Court to allow this appeal, set aside the judgment of the trial Court and dismiss the Respondents’ case and grant the counter claim, or in the alterative order a retrial.

Submission of Respondent’s Counsel
Counsel to the Respondent adopts Respondent’s submission under issue one. Reiterating on some aspects of evidence on record on the issue, counsel urged that there is abundant evidence to support the trial Court’s finding that Exhibits “B” and “B1” lack probative value. This submission, counsel submits finds support in the case of West African Breweries Ltd Vs. Savannah Ventures Ltd (2002) 9 MJ.S.C. p. 141 at 145, ratio 3.

Counsel urges us to resolve this issue in the Respondent’s favour and on the whole to dismiss this appeal for lacking in merit.

RESOLUTION OF ISSUES
The issues formulated by the Appellants and adopted by the Respondent are appropriate for the exhaustive determination of this appeal. I therefore adopt them for the determination of the appeal.

However, the issues in my view dovetail into one another. For this reason, I shall determine them contemporaneously.

I have chosen to start with the arguments of counsel in relation to Exhibits “B” and “B1”. The trial Court arrived at its decision that “B” and “B1” was not proved duly executed by the Appellants based on the Court’s comparison of the signature of the Respondent on his witness statement on oath and his signature on the said Exhibits “B” and “B1”, whereat it found that the signatures are not the same. The Appellants faulted this approach, first and foremost because in the view of the Appellants counsel, Exhibit “B” and “B1” was signed by the Respondent as Abubakar Ibrahim while his signature on his statement on oath was signed by him as Habu Ibrahim. That the signatures cannot therefore be the same on the ground that they were signed under different names.

This argument cannot fly. It is evident on record and accepted by the 1st Appellant that Abubakar Ibrahim and Habu Ibrahim are one and the same person, in this case, the Respondent. Therefore, the Court rightly invoked its power under Section 101(1) of the Evidence Act, 2011 to compare the signature of the Respondent which he admitted to be his and the one he disowned on Exhibits “B” and “B1”.

It was also contended for the Appellant that it was wrong for the Court to undertake the comparison without inviting the parties’ reaction to the dissimilarities he noticed in the signatures. The cases he cited are apt that is Babale vs. Eze (supra) and Ndoma Egba vs. ACB PLC (supra). However, it is to be noted that at the address stage, the Court’s attention was drawn and invited to undertake the comparison. In practice this happens. Even if the Court does not notice such dissimilarities (and more often than not the Court does not undertake such a venture, unless it becomes too obvious on the record), counsel do draw the Court’s attention when the signature to a process upon which the Court is called upon to make a decision is disputed.
Where this is the case, the burden is usually on the party who relies on the document on which the signature disputed is appended to prove that the signature in dispute is that of the person it is claimed to be. See Section 93(1) of the Evidence Act, 2011.

This brings me to the consideration of a submission that was made with full force by the appellants’ counsel. It is counsel’s submission that the 1st Appellant discharged the burden through the evidence of Dw2 – Yakubu Buba. Counsel relied on the case of Amadi Vs Orisakwe (supra) and the case of Solana vs. Olusanya (supra).

On point of fact, the Respondent in his witness statement on oath stated that the agreement between him and the 1st Appellant was made in the presence of witnesses. Having adopted his witness statement, he was cross examined and in answer to the questions, he admitted that among those present when the agreement was made and signed same were Yakubu Buba (DW2) and Waziri Ibrahim. Even though the Respondent told the Court under cross-examination that Exhibit “B” and “B1” was not the agreement they entered into because the one they entered into was made on 12th November, 2012, he none the less admitted that the agreement was written by Yakubu Buba in his presence, and that it was in hausa language which he signed. He told the Court that he knew Waziri Ibrahim but, that was the first day that he saw Yakubu Buba and would not even recognize him if he saw him again. The respondent also told the Court that the 1st Appellant went away with the agreement and promised that he would make a photocopy and return it but never came back to give him the agreement. Yakubu Buba testified for the 1st Appellant and confirmed all that the Respondent stated. The only issue he disputed were the terms of the agreement and the date on which it was made.

In arriving at its findings that Exhibits “B” and “B1” was not duly executed, the trial Court did no evaluation of the evidence adduced by the 1st Appellant on the issue of the execution of Exhibits “B” and “B1”.

The Court totally ignored the evidence of Dw2 and the Respondent’s evidence in which he admitted that the agreement was written by Yakubu Buba – whether he rejected it or not and if he did not believe it, on what grounds. In short there was a total failure of the trial Court’s duty of evaluation as I did say earlier. What evaluation of evidence entails was thus stated in the case of Ashaka Vs Nwachukwu (2013) LPELR 20272 (CA).
“AUGIE J.C.A, in the case of Ilorin v. Tella (2006) 18 NWLR Pt. 1011 P. 272 @ 291 had this to say on what evaluation of evidence entails: “Evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other.” Per BDLIYA, JCA (Pp. 51-52, paras. F-B)
See also Adenugba & Anor Vs Okelola (2007) LPELR – 8290 (CA) PER OKORO JCA (as he then was).
The law is that where a trial Court fails in its duty of evaluation, the Appellate Court can undertake such an exercise and makes appropriate findings. See on this, the case of Abdulkarim & Ors Vs Anazodo & Anor (2006) LPELR -7583 (CA), Per Peter-Odili, JCA (as she then was)(P 18-20) paras B-C.
Therefore, I have a duty to undertake the evaluation.

This Court has a serious and difficult task of deciding whether to accept the evidence of Dw2 that the Respondent signed Exhibit “B” and “B1” which is the agreement dated 21st November, 2012, or the Respondent’s evidence that what he signed is different from Exhibit “B” and “B1”, and to act on the result of the comparison carried out by the trial Court to ascertain whether the Respondent did sign Exhibit “B” and “B1” or not.

I shall make the following observation:- The 1st Appellant by the pleading has admitted that since the agreement was made, he did not give the Respondent a copy. He has not explained why he did this. He was the beneficiary of the agreement, and who retained the title documents of the Respondent. The agreement was the only evidence that the Respondent should have had to show that his title documents were with the 1st Appellant and yet he kept the documents and refused to avail the Respondent a copy of it. The Respondent averred and gave evidence to the effect that it was on 12th November, 2012 when they met that he paid N200,000.00 leaving a balance of N2,460,000.00, and that it was on the same date that he surrendered his documents of title to the land to the 1st Appellant based on the agreement. On the other hand, the 1st Appellant told the Court that prior to the agreement of 21st November, 2012, the Respondent paid him the sum of N200,000.00 leaving an outstanding balance of N2,460,000.00. He was evasive as to the date on which the N200,000.00 sum was paid. Meanwhile there is no evidence to show that the two of them had sat and discussed on two occasions and on one of which the N200,000.00 was paid to the 1st Appellant.

Thirdly, the Respondent told the Court, and this was proved to be truthful that the date of the agreement was his first time of meeting Yakubu Buba (DW2) who wrote the agreement, that as at the time of his testimony he would not recognized him if saw him.

The Appellants have made the point that the Respondent claimed that neither he nor his witness Waziri Ibrahim signed the agreement of 21st November, 2012 but did nothing more than the mere assertion, that not even the said Waziri Ibrahim was called to testify for him. As a matter of fact Waziri Ibrahim is a vital witness for the Respondent for the purpose of establishing whether or not the Respondent did sign the agreement of 21st November, 2012 and agreed to the terms therein. Be that as it may that does not detract from the fact that the comparison of the Respondents signature on his witness statement on oath and the signature on the agreement on 21st November, 2012 proved that the signature is not the same, implying that the 1st Appellant did not sign the agreement of 21st November, 2012.

Now, the 1st Appellant does not only bear the burden to prove due execution of the agreement of 21st November, 2012, in respect of which he counter claims for an order that the said agreement binds all the parties, but as a counter claimant he must prove his case on his own strength to succeed.

The law is settled that a counter claim is a distinct and separate action and the burden and standard of proof is the same as in the main claim. The defendant/counter claimant must also discharge the burden by cogent and credible evidence: see the cases of Okechukwu & Anor vs Nwosu & Anor (2018) LPELR – 44893 (CA), Per Bolaji-Yusuf, JCA (p 27) paras B-E, Dozzy Group of Companies Ltd Vs Okeke (2016) LPELR – 41522 (CA).

We have a situation in which the Appellants are confronted with circumstances which they have failed to shed light on, such as, why did the 1st Appellant refuse to give the Respondent a copy of the agreement they entered into, when the Respondent had surrendered his title documents to him?

Contrary to the evidence of the Respondent that it was on 12th November, 2012 when they sat and discussed the Respondent’s liability to the 1st Appellant that the N200,000.00 of the part payment was made, the 1st Appellant could not state the date on which the Respondent made the part payment of N200,000.00 to him.

He thus made the Respondent’s evidence on this more probable than his.

Faced with this situation, the burden to adduce further evidence of the quality of evidence of an expert in hand writing and signature was on the 1st Appellant. That burden was not discharged. I am inclined to believe the Respondent’s evidence, and by reasonable implication toe the line of the trial Court that the Appellants failed to prove that the signature on Exhibit “B” and “B1” is that of the Respondent.

Both the Respondent’s claims and Appellants’ counter claims succeed or fail based on what side the pendulum swings in respect of Exhibits “B” and “B1”. Put in other words, if it is believed that the signature on Exhibits “B” and “B1”is that of the Respondent, the chance of success of the counter claim would be high, if otherwise, the reverse will be the case for the Appellants. If Exhibits “B” and “B1” is found not proved to have been signed by the Respondent, the likelihood will be that the Respondent would be successful in his claims. Ordinarily with my finding that Exhibits ““B” and “B1” were not proved duly executed that should be the end of this appeal. However, being not the final Court, the law enjoins me to consider all the issues submitted before this Court for determination. I refer to the case of Titiloye & Anor Vs Olupo & Anor (1991) LPELR – 3250 (SC).

I shall now consider the validity of the sale of the Respondent’s property which title documents were surrendered to the 1st Appellant.
The first point to make is that the sale is already void by reason of Exhibits “B” and “B1” having not been proved to have been signed by the Respondent.
The main pre-occupation here is the validity of the sale by reason of failure to obtain Governor’s consent.
It is not in doubt that the land subject matter of this appeal, which title documents the Respondent surrendered to the 1st Appellant is a landed property over which Borno State Government granted a statutory right of occupancy No. B0/27044. I refer to paragraph 7(a) of the amended statement of claim. It is also conceded by the Appellants that the landed property was sold by the 1st Appellant to the 2nd Appellant on 19th November, 2012. That the consent of the Governor was not obtained prior to the sale is also not disputed.
However, the following issues call for the determination of the Court.
i. Whether the Land Use Act requires the prior consent of the Governor for alienation of a landed property not covered by a certificate of occupancy duly issued under the hand of the Governor? Section 22 of the Land Use Act 1978 provides:
“it shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by Assignment, mortgage, transfer of possession, sublease or otherwise, however without the consent of the Governor first had and obtained.”
It is clear from this provision that the consent of the Governor is required for the alienation of land covered by a statutory right of occupancy.
Therefore, consent of the Governor of Borno State is ordinarily required for the sale of the land herein in dispute.
(ii) Whether the fact that the Governor’s consent was not sought and obtained is a fact that needed to be pleaded, and if the answer is in the affirmative, whether the Respondent pleaded it.
It is contended for the Appellants that the issue did not arise from the pleadings, and therefore the trial Court was in error in delving into it in its judgment.
The Respondents counsel proffered contrary submission. He first submitted that what should be pleaded is not law but facts, and therefore the requirement of Section 22 of the Land Use Act is an issue of law. Again in what seems to be a somersault, counsel contends that it is pleaded in the reliefs.
What pleadings should contain were clearly stated in the case of Bernard Okoebor Vs Police Council & Anor (2003) LPELR – 2458(SC) thus:-
“It is not the law of pleadings that laws must be pleaded before a party can rely on them. While the law of pleadings requires that some specific laws should be pleaded (e.g. statutory defence like the Limitation Statute), it is not the province of the law of pleadings, that any law to be relied upon by a party must be pleaded. As a matter of law, pleadings essentially contain facts relied upon by the parties and they are stated positively, precisely, distinctly and briefly. In view of the fact that the Police Regulations are enacted pursuant to the Police Act, Cap. 359 and by virtue of the provision of Section 18(1) of the Interpretation Act, the Regulations qualify as law and need not be pleaded by the appellant. As a matter of law, a good pleading should contain facts not law. There is a distinction between pleading law, which is not permitted by the law of pleadings and raising a point of law in a pleading, which is permitted by the law of pleadings. Pleading law obscures and conceals the facts of the case while raising a point of law defines or isolates an issue or question of law on the facts as pleaded. See Chief Nwadiaro v. The Shell Petroleum Development Company of Nigeria Limited (1990) 5 NWLR (Pt. 150) 322.”
Per TOBI, J.S.C. (P.30, paras. A-F).
See also Agu Vs Ikewibe (1991) LPELR – 253 (SC), Per Nnameka-Agu, J.S.C. (pp 53-53), Para A-B), Finnih Vs Imade (1992) LPELR – 1277 (SC) Per Karibi-Whyte, J.S.C. (pp 34 -35, paras F-A)
While it is a correct principle of law that facts and not law should be pleaded, the facts upon which the law rests must be pleaded because law cannot act in vacuum. It is also the law that facts not pleaded cannot be put in evidence. I dare to also state that a relief sought in a claim cannot be elevated to the status of a pleading. A relief is dependent upon proof of pleaded facts, and therefore where a relief asked for is not backed up by pleaded facts and established by evidence, such a relief is hardly grantable.
In this appeal, if the contention of the Respondent was that the Appellants did not obtain the consent of the Governor to alienate by sale his landed property covered by statutory right of occupancy, he ought to have pleaded that fact in his statement of claim.
What the law preludes him from doing is to plead that the sale was contrary to Section 22 of the Land Use Act 1978. Herein, law was clearly pleaded and the rule of pleading prohibits that. However, the rule cannot be said to have been contravened if the following, for instance is pleaded:
“The consent of the Governor was not sought and obtained before the sale.”
This is clearly a statement of fact, and it clearly puts the other side on notice. It is settled that the purpose or aim of pleadings is to avoid surprise. See the case of Delek (Nig) Ltd vs. OMPADEC (2007) LPELR – 916 (SC), Per Onnoghen, J.S.C. (pp. 34 – 35, paras G-A).
It was contended for the Respondent that the issue was raised in counsel’s final written addresses. An issue which requires facts cannot be raised at address stage when pleadings had been closed and the respective case of the parties closed.
Therefore, I conclude this issue by holding unequivocally that the invalidity of the sale on account of failure by the Appellants to seek and obtain the Governor’s consent did not arise. The trial Court was clearly wrong in delving into it on address of counsel.

I must concede that it was an issue of paramount importance which the trial judge could suo moto could have raised from the pleadings even before commencement of hearing and then invite counsel to address him on it.
Failing that, it was incompetent of him to decide that issue based on address of counsel.

I should point out that this issue arises from ground 2 of the Appellants grounds of appeal. The Respondent did not file a cross appeal, and therefore cannot argue any other issue apart from the issue of the failure to seek and obtain the Governor’s consent prior to the sale. Therefore I refuse to consider other arguments such as; that the sale was also invalidated because the 2nd Appellant was not a bonafide Purchaser for value.

Flowing from my findings on the issues, it is clear that issues 1, 3 and 4 are resolved in favour of the Respondent, while issue 2 is resolved in favour of the Appellants.

However, by the resolution of issues 1, 3 and 4 in favour of the Respondent, the resolution of issue 2 in favour of the Appellant is of no moment as the effect of my finding in issue one is that by the agreement reached between the 1st Appellant and the Respondent on 12th November, 2012, the 1st Appellant was not authorized to sell the property but to call for meeting between him and the Respondent on 12th December, 2012 to agree on how the balance of the 1st Appellant’s money with the Respondent in the sum of N2,460,000.00 would be offset.

In the result. I find no merit in the appeal. It is hereby dismissed in consequence of which the judgment of the lower Court delivered by Hon. Justice Hadiza Ali Jos on 26th September, 2014 is hereby affirmed.
Parties to bear their respective costs for this appeal.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft the Judgment just read by my learned brother, ABUNDAGA, J.C.A.
I entirely agree with his reasoning and conclusion therein.
For the reasons therein stated, I would also dismiss the Appeal, and do hereby dismiss it.
Accordingly, I affirm the Judgment and Orders of the High Court of Borno State.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother ABUNDAGA JCA. I agree with his reasoning. The 1st Appellant did not get the consent of the Respondent to sell the property even though he had the documents concerning the land. The 1st Appellant breached the agreement he reached with the Respondent. I agree with the conclusions reached in the lead Judgment.
​I also find no merit in the Appeal. It is hereby dismissed. The Judgment the lower Court is hereby affirmed.

Appearances:

S. M. Konto, Esq. For Appellant(s)

B. Grema, Esq. For Respondent(s)