IN THE COURT OF APPEAL

SOKOTO JUDICIAL DIVISION

HOLDEN AT SOKOTO

 

ON FRIDAY THE 23RD DAY OF FEBRUARY, 2018


  APPEAL NO: CA/S/79/2016

CITATION:

BEFORE THEIR LORDSHIPS:

 

HON. JUSTICE HUSSEIN MUKHTAR, J.C.A

HON. JUSTICE MUHAMMED L. SHUAIBU, J.C.A

HON. JUSTICE FREDERICK. O. OHO, J.C.A

 

                                                      


BETWEEN:

ALH. ABDULLAHI MAIGWANDU

(APPELLANT)

     AND

  1. ABUBAKAR MARADUN
  2. ALIYU G. KWARE

(RESPONDENTS)


LEAD JUDGEMENT JUDGEMENT DELIVERED BY SHUAIBU, JCA


This appeal against the judgment of the Sokoto State High court in Suit No. SS/78/2011 delivered on 30th day of June, 2016 partly granting the reliefs of the 1st respondent against the appellant.

By an endorsed Writ of Summons issued on 29th day of November, 2011, the 1st respondent as plaintiff claimed against the appellant and 2nd respondent jointly and severally as follows:

  1. The sum of N1, 800, 000.00 (One Million Eight Hundred Thousand Naira Only) being the sums paid to the 1st Defendant for the purchase of a piece of land situate and lying at Minanata Area, Sokoto more particularly described as plot No.431 but which land was later discovered to have been given to the 1st defendant mistakenly as no records exist at Ministry of Lands and Housing relating to plot 431.
  2. That the sums of N2, 000, 000.00 (Two Million Naira Only) against the 2nd defendant for causing the plaintiff to believe that the land known as plot No.431 was allocated and devoid of any mistake and or encumbrance and procuring a breach of contract by the 1st defendant and between the plaintiff and one Alh. Mohammadu Kofar Rini.
  3. 35% interest on the sums of N1, 800, 000.00 (One Million Eight Hundred Thousand Naira Only) from 9/2/2009 till the final liquidation of the judgment sums.
  4. 35% interest on the sum of N200, 000.00 (Two Hundred Thousand Naira Only) from 9/2/2009 till final liquidation of the judgment sums.
  5. 10% court interest from the date of judgment until final liquidation thereof.
  6. Cost of this action.

After settlement and exchange of pleadings the case proceeded to trial wherein parties adduced evidence including documentary evidence marked Exhibits A, B, C, D, E and F respectively. At the close of hearing, counsel on both sides filed and adopted their written addresses. In a reserved and considered judgment delivered on 30/6/2014, learned trial judge entered judgment in favour of the plaintiff against the 1st defendant therein in terms of reliefs No.1 at page 9 of the record of appeal thus:

“I do not think that the act of the 2nd defendant had in any way procured the breach of contract between the plaintiff and one Alh. Umaru Mohammed Kofar Rini. And I so hold.

          Consequently therefore, having found that the 1st defendant was acting for himself when he sold the plot in dispute to the plaintiff.

On the whole, judgment is hereby entered for the plaintiff as follows: –

  1. Relief No.1 is hereby granted against the 1st defendant who is to pay to the plaintiff the sum of N1, 800, 000.00 (One Million Eight Hundred Thousand Naira Only) being the sums paid to him
  2. Relief No.2 is refused.
  3. All other reliefs are also refused.”

Dissatisfied with the above, appellant appealed to this court through a notice of appeal filed on 20/7/16 containing three grounds of appeal. The said three grounds of appeal with their respective particulars are as follows:

GROUND ONE          

The judgment is against the weight of evidence.

GROUND TWO

The Lower Court erred in law when it ordered the Appellant to pay the
Respondent the sum N1, 800, 000.00 (One Million Eight Hundred Thousand, Naira only) being the purported value of the land sold to the 1st Respondent by the Appellant without properly evaluating the evidence before it, thereby occasioning miscarriage of justice

PARTICULAR OF ERROR IN LAW

  1. Whereas evaluation of evidence and ascribing probative value to same is the primary duty of the lower court.
  2. Whereas on a proper evaluation of the evidence before the lower
    court would have dismissed the 1st Respondent’s claim against the
    Appellant.
  3. Whereas the Lower Court merely reproduce the evidence before it.
  4. Whereas the Lower Court abandoned its primary duty of evaluation of evidence and ascribing probative value to same.

GROUND THREE

The Lower Court erred in law when it held that there is no agency
relationship between the Appellant and the 2nd Respondent, thereby
occasioning miscarriage of justice.

PARTICULAR OF ERROR IN LAW

  1. Whereas the available evidence before the court clearly shows the existence of agency relationship between the Appellant and he 2nd Respondent with the regards to the landed property in issue.
  2. Whereas the said agency can also be implied from the circumstances of the

In compliance with the rules of court, briefs were filed and exchanged by the appellant and 1st respondent. The appellant’s brief was settled by Sanusi Garba, Esq. while the 1st respondents’ brief was settled by Ibrahim Abdullahi, Esq. The 2nd respondent did not file any brief and therefore shall not be heard in this appeal.

Also by leave of this court granted on 5/4/2017, the 1st respondent was given 14 days to file notice of cross – appeal. The 1st respondent’s notice of cross – appeal was filed on 6/4/2017 containing four grounds of cross – appeal. The said four grounds of cross – appeal are reproduced hereunder as follows: –

GROUND ONE

The court below erred in law when it refused to grant reliefs 20 (b) & (c) of the Cross Appellant’s amended statement of claims against the 2nd Cross Respondent when there was evidence supporting the grant of same and this has occasioned a miscarriage of justice.

PARTICULARS OF ERROR IN LAW

  1. Whereas there was evidence to show that the 2nd Cross Respondent gave out Exhibits C&D and represented to the Cross Appellant that the disputed land was not encumbered which led the Cross Appellant to agree to purchase same.
  2. Whereas there was evidence to show that it was the confirmation of the 2nd Cross Respondent to the Cross Appellant that led the Cross Appellant to purchase the disputed land and sale same to Alh. Umaru Muhammadu Kofar Rini in the sum of N2, 500,000:00 via Exhibits E&F.
  3. Whereas there was admissions made by the 2nd Cross Respondent via Exhibits J&K that the 2nd Cross Respondent mistakenly made the representation confirming the genuiness of the dispute land by the 2nd Cross Respondent to the Cross Appellant.
  4. Whereas there was an admission against interest by the 2nd Cross Respondent which was glossed over by the court below.
  5. Whereas there was abundant evidence to show that the representation of the 2nd Cross Respondent procured the breach of contact between the Cross Appellant and one Alh. Umaru Mohamrnadu Kofar Rini.
  6. Whereas there was evidence of the concomitant damages that flowed from the act of the 2nd Cross Respondent.
  7. Whereas; the court below glossed over all these important considerations.

GROUNDTWO

The court below erred in law and which has occasioned a miscarriage of justice when it held as follows:

“It is in evidence as testified by PW1 and DW3 that the plaintiff went to the Ministry of Lands and Housing to conduct a search on the property No. 431 Minanata Area Sokoto and the plaintiff went the (sic) 2nd defendant in his office with a view to verifying exhibit. On the admission of the 2nd defendant, the Plaintiff bought the plot from the 1st defendant who was at the time not around. There was no evidence that the plaintiff paid the necessary fees for the search conducted. His equity is bad as he who comes to equity must come with clean hands. In any case, the 2nd defendant was for all intent and purposes, acting in his official capacity and by section 168(2) of the Evidence Act 20ll, as amended was presumed to have acted so and entitled to so act. There was nothing to suggest that the 2nd defendant acted outside the scope of his office. I do not think that the 2nd defendant had in any way procured the breach of contract between the Plaintiff and one Alh. Umaru Mohammed Kofar Rini and I so hold.”

PARTICULARS OF ERROR IN LAW

  1. Whereas the 2nd Cross Respondent did not deny the averments of the Cross Appellant in paragraphs 7-16 of the amended statement of claims which ought to be deemed as admitted.
  2. Whereas the 2nd Cross Respondent while testifying in chief admitted that he confirmed to the Cross Appellant that the disputed plot was genuine.
  3. Whereas the 2nd Cross Respondent admitted under Cross examination that the Cross Appellant brought title documents for him for verification which he verified as genuine.
  4. Whereas the fact that the 2nd Cross Respondent confirmed the genuiness of the title documents brought for verification to him was never in dispute.
  5. Whereas there was no issue .joined by the parties that the search conducted by the 2nd Cross Respondent confirming the authenticity of the documents relating to Plot No. 431 was defective because no fees were paid.
  6. Whereas equity treats as done that which ought to be done.
  7. Whereas the court below glossed over all these important considerations.

GROUND THREE

The court below erred in law when it refused to grant reliefs 20 (d) and 20(e) of the amended statement of claims of the Cross Appellant and this has occasioned a miscarriage of justice.

PARTICULARS OF ERRORS IN LAW

  1. Whereas the Cross Appellant claimed 35% interest in the sums of ₦l, 800, 000:00 from 9/2/2009 till the final liquidation of the judgment sums against the 1st
  2. Whereas judgment was entered in favor of the Cross Appellant for the sum of ₦l, 800,000:00 against the 1st Respondent which ought to have attracted interest.
  3. Whereas the Cross Appellant’s claim of 10% court’s interest rates which was refused by the court below is statutorily imposed and admits no discretion on the part of the court below.
  4. Whereas the court below glassed over all these important considerations.

 

GROUND FOUR

The judgment of the court below is unreasonable and unwarranted having regard to the weight of evidence.

On 28/11/2017 at the hearing of the appeal, counsel to the 1st respondent/cross appellant adopted his briefs of argument and adumbrated thereon. The briefs of argument of the appellant were deemed argued pursuant to order 19, rule 9 (4) of the Court of Appeal Rules 2016.

On behalf of the appellant, a sole issue was formulated for the determination of this appeal as follows:

Whether the lower court properly evaluated all the evidence before it arrived at its decision. (Distilled from ground 2).

It is therefore obvious that no issue was formulated from grounds 1 and 3 and the consequential effect is that same are deemed abandoned and they are accordingly struck out.

The 1st respondent adopts the appellant’s sole issue for determination.

Before considering the submissions of learned counsel on both sides, it is pertinent to at this juncture state briefly the facts of the case which give rise to this appeal as encapsulated in the 1st respondent’s brief of argument. The 1st respondent via a contract of sale agreement made on the 9th of February, 2009 between himself and the appellant, purchased plot No.431 situate at Minanata Area, Sokoto in the sums of N1, 800, 000.00. After the purchase a resettlement allocation letter issued in the name of one Lawali Bawa was given to the 1st respondent by the 2nd respondent. Subsequently, the 1st respondent resold the plot to Alh. Umaru Mohammad Kofar Rini in the sums of N2, 250, 000.00 on the 10th of March 2009. But two years after this later sale and after expending expenses on the property, some group of individuals claimed ownership which led to the institution of a direct criminal complaint at Upper Sharia Court II, Sokoto. Consequently, the 2nd respondent was invited where he admitted the fact that he had no authority to give out the property in question and that neither the appellant nor the 1st respondent were the real owners. And that the property was mistakenly given out.

Arguing the sole issue, learned appellant’s counsel submitted that by virtue of Section 15 of the Land Registration Law Cap.76, Laws of Sokoto State, no instrument shall be given in evidence unless same is registered and that Exhibits A & B not being registered, are inadmissible pieces of documents. He therefore urged the court to expunge Exhibits A & B from the records of the court. He referred to BIDA –V- ABUBAKAR (2011) 5 NWLR (Prt 1239) 130 at 150 and DUROSARO –V- AYORINDE (2005) 8 NWLR (Prt 927) 407.

Still in argument, learned counsel submitted that the lower court was in error for failure to properly consider the evidence of the appellant as DW1 on how the 2nd respondent gave him the said plot 431 Minanata to sell and how he sold same to the 1st respondent through some agents which evidence is consistent with that of DW2. Thus, the lower court ought to have ordered the 2nd respondent to refund the sum of N1, 500, 000.00 being proceeds from the sale of the plot of land in question to him by the appellant.

He submitted further that the failure on the part of the 1st respondent to call as witness, any of those persons who purchase the land from him is fatal to his case in view of his admission that he did not transact or personally gave the appellant any money. Thus, there was nothing to show that as at the time the appellant sold the land, he knew or had reason to know that the land is not genuine.

Finally, learned counsel submitted that by Exhibits J & E, the 2nd respondent admitted that plot No.431 Minanata Area Sokoto originated from him and that he gave it out by mistake which was clearly an admission against interest but the lower court glossed over it and failed to act on the admission.

He urged the court to resolve the sole issue in favour of the appellant and to allow the appeal.

On his part, learned counsel for the respondent submitted that once a document is tendered and admitted as evidence without objection, same became an exhibit and cannot be questioned by the court or any of the parties. He referred to OLALOMI NIG. LTD –V- NIDB LTD (2009) 18 NLR (Prt 1167) 266 at 303, MAINAGGE –V- SWAMMA (1997) 11 NWLR (Prt 528) 191 EMETUMA –V- NJWUMO HAIKE (1993) 3 NWLR (Prt 283) 612 at 627 and MANAKAYYA –V- MANAKAYYA (1996) 9 NWLR (Prt 472) 259 at 290.

Still in argument, learned counsel submitted that since there is no decision of the court below relating to the issue of the inadmissibility of Exhibits A and B or the import of Section 15 of the Land Registration Law Cap. 76, Laws of Sokoto State 1996, then this court lacks the vires to consider same in this appeal.

He submitted that even if Exhibits A & B were not registered, they still constitute evidence of payment of monies made by the 1st respondent to the appellant and for which possession of the subject matter of the purchase was handed to the 1st respondent by the appellant. He referred to OKOYE –V- DUMEZ (NIG) LTD (1985) 1 NWLR (Prt 4) 783, OBIJURU –V- OZIMS (1985) 2 NWLR (Prt 6) 167 and TEWOGBADE –V- OBADINA (1994) 4 NWLR (Prt 338) 326.

On the argument that the lower court had failed to properly evaluate Exhibits J & K, learned counsel for the respondent submitted that the question of evaluation of evidence is not the function of the appellate court especially where the credibility of witnesses is in question. He therefore contend that while the appellant claimed to be an agent of the 2nd respondent, the 2nd respondent denied the fact of agency in both his statement of defence and oral testimony in court. There is also nothing in Exhibits A & B to show the creation of any agency. He therefore submitted that the lower court had painstakingly considered and evaluate the piece of evidence relating to the purported agency.

It was also the submission of the learned counsel that where as in this case a witness called by a defendant gave evidence which support the plaintiff’s case and the defendant did not treat such a witness as hostile witness, the evidence of such witness must be treated as an admission against interest upon which the plaintiff is entitled to rely as further reinforcement of his case. Thus, the lower court had properly evaluated the evidence of the appellant

He urged the court to dismiss the appeal.

The central issue for consideration in the main appeal is whether the appellant acted as an agent of the 2nd respondent in selling the plot of land in question to the 1st respondent.

The general rule is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and the principal and not the agent is the proper person to sue or be sued upon such contract. Where two or more persons makes, joint and several promise to another, each of the promisors incurs both a joint and a several liability, therefore the promisee has the option of suing them collectively or bringing separate actions against each of them. It is a settled law that where a person makes a contract in his own name without disclosing either the name or the existence of a principal, he is personally liable on the contract to the other contracting party even though he may be in fact acting on the principal behalf. See OGIDA –V- OLIHA (1986) 1 NWLR (Prt 19) 786.

In the instant case, there was no evidence to show that the appellant was acting on behalf of anybody as the agreement was between the appellant and the 1st respondent. At pages 83 – 84 of the record of appeal, the lower court found as follows: –

“Exhibit “A” Simpliciter is an agreement between the 1st Defendant on one hand and the plaintiff on the other. It did not say that the 1st defendant was acting as an agent of the 2nd defendant and therefore the issue of the agency relationship would not be imported into the document by oral evidence of DW1 and DW2. Worst still there was no any other document to support that relationship such that would make the court to infer that there is either implied or express agency relationship between the 1st and 2nd defendant.”

However, learned appellant’s counsel has argued that Exhibits “A” & “B” are not admissible as same were not registered in the Land Registered in line with Section 15 of the Land Registration Laws of Sokoto State Cap. 76 of 1996. Therefore the lower court cannot use such evidence as the basis of entering judgment in favour of the 1st respondent. The provision of Section 15 of the Land Registration Laws of Sokoto State provides that no instrument shall be pleaded or given in evidence in any court as affecting any land unless same has been registered. Thus the condition precedent for the admissibility of the documents in respect of the plot in question is dependent on its registration in accordance with the law.

I am not therefore in agreement with learned counsel for the 1st respondent that the fact that Exhibit “A” & “B” were tendered and admitted without objection are ex-facie admissible in evidence. A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law. Thus, if a court should in advertency admits inadmissible evidence, it is duty bound not to act upon it. And any piece of evidence which slip into the record without passing the test of admissibility is not legal evidence and is liable to be expunged even if admitted by consent. See DUROSARO –V- AYORINDE (Supra) and AGBI –V- OGEBEH (2006) 11 NWLR (Prt 990) 65 at 119.

It is to be observed that Exhibits “A” and “B” were not tendered to prove a transfer of title to the plot, the subject matter of dispute but they were tendered to prove the existence of a transaction concluded between the appellant and the 1st respondent.

A registrable instrument is a document affecting land, whereby one party confers, transfers, limits, charges or extinguishes in favour of another party any right of title to or interest in land and includes a certificate of purchase and a power of attorney under which any instrument may be executed but does not include a will. Therefore, once a document purports to transfer and or confer interest in land or howsoever described, it becomes an instrument that must be registered. But where the document does not confer title to land it need not be registered. See ORIANZI –V- A.G, RIVERS STATE (2017) 6 NWLR (Prt 1561) 224 at 283. In OBIENU –V- OKEKE (2006) 16 NWLR (Prt 1003) 225 at 239 – 240 it was held that the admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which it is being sought to be admitted. If it is being sought for the purpose of proving or establishing title to land or interest in land it will not be admissible under the land Registration Act. However; if it is tendered to show that there was a transaction between the parties it will be admissible. In OBIJURU –V- OZIMS (Supra) the Supreme Court held that the non-registration of a document that qualifies as an instrument under the Land Registration Law makes such document prima facie inadmissible. However, unregistered document is admissible as an acknowledgment of payment of money which means the document is not void for all purposes. It is therefore valid as an agreement.

On whether there was failure on the part of the lower court to properly evaluate the evidence of the appellant, the law is equally settled that making finding on issues joined by parties in litigation on their pleadings is an indispensable part of the exercise of writing a good judgment. Where a court of trial fails in its duty to make finding on material and important issues of fact where necessary or approaches the evidence called by parties wrongly; the appellate court has no alternative but to allow the appeal. See KARIBO –V- GREEND (1992) 3 NWLR (Prt 230) 426.

In the instant case, the material and important issues joined by the parties was the sale of plot No.431 at Minanata Area, Sokoto to which Exhibits “A” & “B” represented the evidence of that sale. The lower court had found that the 1st defendant (now appellant) was acting for himself when he sold plot No.431 Minanata Area, of Sokoto to the plaintiff (now 1st respondent). Thus, the lower court had properly evaluated the evidence of the appellant when it concluded at page 19 of the record of appeal thus:

“I therefore hold that the 1st defendant was acting for himself when he sold plot No.431 Minanta Area, Sokoto to the plaintiff. A party cannot be allowed to reside (sic) from an agreement just because he latter found out that the terms of the agreement are not favourable to him.”

I am therefore satisfied that the learned trial judge had on the evidence correctly given judgment in favour of the 1st respondent.

I have stated that in the course of hearing this appeal, the 1st respondent herein has filed a notice of cross – appeal and the issue for determination of the cross – appeal is as follows:

Was the court below correct in law when it refused to grant reliefs 20 (b), (c), (d) & (e) of the amended statement of claim of the Cross – Appellant against the Cross – Respondents?

Learned cross – appellant’s counsel restated his previous argument that all exhibits tendered by the cross – appellant against the 2nd cross – respondent were admitted without objection and as such neither party can question their admissibility. And that Exhibits J & K amounts to admission against interest on the part of the 2nd cross – respondent and thus binding on him.

The cross – appellant’s claims in reliefs 20 (c) – (e) of the amended statement of claim essentially deals with interest and same are predicted on the alleged admission by the 2nd cross – respondent.

Section 19 of the Evidence Act, 2011 defines “admission” as a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any person. But such admission must be clear and unequivocal and not based on misapprehension. In this case, though the 2nd cross – respondent had confirmed the genuiness of Exhibit C in his official capacity but the admission in Exhibits J & H was made on the mistaken belief that it was another land other than plot 431 Minanata Area, Sokoto. In the circumstance, Exhibits J & H did not constitute an admission. Learned trial judge rightly found at page 91 of the record of appeal thus: –

“I do not think that the act of the 2nd defendant had in any way procured the breach of contract between the plaintiff and one Alh. Umaru Mohammed Kofar Rini. And I so hold.”

Though interest may be awarded as a right where it is contemplated by agreement between parties or under a principle of equity but where interest is being claimed, the claimant must adduce credible evidence in its proof. In the instant case, the cross – appellant has failed to establish his entitlement to 35% interest which is a pre-judgment interest. There is a clear different between award of interest pre – judgment where plaintiff must specifically claim such and prove it and the award of interest on a judgment debt which is purely statutory and can only be awarded if there is provisions to that effect in law or rules of court. The provisions of Order 39 Rule 7 of the Sokoto State High Court (Civil Procedure) Rules 1993 provides that judgment debt carries 10 per centum interest from the date of judgment until it is liquidated by the judgment debtor. Thus, the judgment debt automatically carries interest at the rate fixed by the rule. See BERLIET (NIG) LTD –V- KACHALLA (1995) 9 NWLR (Prt 420) 478.

In the result, I dismiss the appeal and allows the cross – appeal in parts. Accordingly the appellant/ 1st cross – respondent shall pay 10% post judgment interest (from the date of the judgment until final liquidation thereof) pursuant to Section 15 of the Court of Appeal Act, 2004. I make an order that each party to bear the cost of prosecuting these appeals.

MUHAMMED L. SHUAIBU

JUSTICE, COURT OF APPEAL

APPEARANCES:

Ibrahim Abdullahi (With A. M. Auwal): 1st Respondent/Cross – Appellant.

 

CA/S/79/2016

HUSSEIN MUKHTAR, JCA

I was privileged to read before now the judgment of my learned brother, Muhammed Lawai Shuaibu, JCA. I am in total agreement with the reasons therein and the conclusion that the appeal is lacking in merit and ought to be dismissed while the cross appeal is partly meritorious and is, for the reasons stated in the judgment. partly allowed. I subscribe to the consequential orders made in the judgment.

APPEAL NO: CA/S/79/2016

(FREDERICK O. OHO, JCA)

I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his conclusions in dismissing the Appeal as lacking in merit and in allowing the Cross-Appeal in part. I abide by the consequential orders made thereto.