Alhaji Babaiye Ali V. Alhaji Kassim Hussaini & Ors (2002)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A
In the High Court of Kano State of Nigeria, in the Kano Judicial Division the plaintiff took out a writ of summons claiming against the first and second defendants as follows:-
a. Specific performance of an oral agreement.
b. N100,000 as damages for breach of contract in lieu of or in addition to specific performance or in the alternative.
c. Declaration that the sale between the 1st defendant and 2nd defendant is invalid been contrary to the plaintiff’s right of pre-emption.
d. substituting the 2nd defendant with the plaintiff as the purchaser of the said premises.
Pleadings were settled and exchanged at amended statement of claim and joint statement of defence of the existing defendants. Plaintiff testified in support of his claim. Before the first defendant testified in support of the defence, the second defendant died and was substituted with one Alhaji Aminu Ya’u Dankunne by order of court dated 22nd January 1996. By the same order Alhaji Aminu Dawaki was joined as third defendant. He too filed his own statement of defence.
Thereafter first defendant testified and the defence was closed.
Both counsel addressed court in writing. The learned trial judge in a reserved and considered judgment refused all the reliefs sought by the plaintiff and dismissed his action.
Plaintiff was unhappy with the dismissal of his action, and being aggrieved, appealed to this Court on 6 grounds of appeal. In accordance with practice and procedure of this Court, briefs of argument were filed and exchanged at the appellant’s as well as respondents’ brief of argument. The appellant formulated three issues from the six grounds of appeal filed along with the notice of appeal.
The issues framed in the appellant’s brief read as follows:-
(a) Whether the learned trial judge properly appraised the evidence of the plaintiff/appellant and formulated proper question for determination – Grounds 1 and 2.
(b) Whether the learned trial judge can properly rely, make findings and/or holding on evidence of facts not pleaded – Grounds 3 and 4.
(c) Whether the Plaintiff/Appellant is entitled, having regard to the pleadings and evidence led at the trial, to an order of specific performance of the contract of sale and/or to any of his other claims – Grounds 5 and 6.”
On the other hand, the respondents with leave of the court granted on 4th October, 2001 filed a joint respondents’ brief of argument in which these issues were framed as calling for determination in this appeal:-
“a. Whether the learned trial judge from the totality of evidence before the lower court was right in formulating issues for determination in this matter.
b. Whether the appraisal and evaluation of the evidence of the parties by the trial judge is perversed capable of been interfered with by the appellate court.”
Learned counsel for respondents failed to relate these issues with any of the six grounds of appeal. This approach is neither commendable nor good enough. I hope learned counsel would take note of his short coming and improve on it when he writes his next brief of argument.
Having carefully considered the two formulations, the appellant’s identification is preferred and would be followed, notwithstanding its imperfection, since he is the owner of the appeal. The respondents have no appeal before the court. However, the appellant in his issue (c) raised the question of Kano customary law which he neither pleaded nor canvassed in the trial court. This question is therefore not open to him at this stage of the rehearing. An appeal is a mere rehearing of the case at the court below and since that question was never raised nor canvassed in that court to enable the court below express its opinion thereupon it cannot now be foist on either the respondent or the court. Both the court and the parties are bound by the pleadings.
Since the incompetent question was argued along with some other question the appellant’s issue (e) is consequently struck out See Korede v. Adedokun (2001) 15 NWLR (Pt.736) 483. The issues remaining and calling for determination in the instant appeal are, therefore, the appellant’s issues (a) and (b).
The appellant canvassed issue of pleadings in both questions (a) and (b). To avoid repetition of arguments and possibly duplication of determination, it is proposed to deal with issue (b) which deals mainly with pleadings before treating issue (a) in which pleading was merely incidentally argued.
In issue (b) appellant argued that, in civil cases, material facts, to be admissible in evidence, must be pleaded. As a result neither party will be allowed to raise at the trial of a suit, an issue of fact which he had not pleaded. Where, therefore, such facts are not pleaded, they are in law inadmissible in evidence and, where wrongly admitted go to no issue. He relied on the cases of Paul v. George (1959) SCNLR 510; Ajoke v. Oba (1962) 1 SCNLR 137, Idahosa v. Oronsaye (1959) SCNLR 40; George v. D.B.A. Ltd (1972) 8 – 9 SC 264, 274; N.I.P.C. Ltd v. Thompson Organisation Ltd (1969) 1 All NLR 138; Njoku v. Erne (1973) 5 SC 293; Oke-Bola v. Molake (1975) 12 SC 61; Ipinaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148, 165 -166.
Learned counsel for appellant, in appellant’s brief, read paragraphs 2, 3 and 4 of the joint statement of defence of the first and second respondents as well as a portion of the evidence of first respondent and contended that the evidence “He asked for another 2 weeks which I agreed” was not pleaded. Learned counsel for appellant contended that the learned trial judge placed heavy reliance on that piece of evidence in his findings or holdings and submitted that the piece of evidence, “He asked for another 2 weeks which I agree” is a material fact which ought to have been pleaded and failure to plead same, the evidence is inadmissible and irrelevant to the issue properly raised by the pleadings.
The respondents, in their brief, did not take this issue separately it was taken as incidental to issue (a) and replied the appellant’s argument under that issue I take that answer on that issue (a) as satisfying the appellant’s argument in both issues.
In this connection respondents contended, in their joint brief that it was a wrong assertion for the appellant to say that he was not told that the property was sold to second respondent. The fact of sale, respondents contended, was adequately pleaded in paragraph 6 of the amended statement of claim and paragraphs 3, 4, 5, and 6 of the statement of defence, the respective averments were then read. After reading the respectively relevant paragraphs from the pleadings, learned counsel submitted that the material fact for sale of the property by the first respondent to the second respondent was an issue joined by the pleadings of the parties. The pieces of evidence that the appellant was told, counsel further submitted, by the first respondent that the property had already been sold to the second respondent for N200,000.00 was the evidence establishing the material fact of sale. Learned counsel for respondent then conceded, on the authority of the cases ACB Limited V. Haston Nig. Limited (1997) 4 N.W.L.R (pt.500) 94 and Uzochukwu V. ERI (1997) 7 NWLR (pt.514) 535 that evidence not emanating from pleaded fact is inadmissible.
However he contended that the purpose of pleading, on the authority of Obimiami Brick and Stone Nig. Limited v. African Continental Bank Limited (1992) 3 SCNJ 4, is to give notice and alert the adverse party of the nature of his case. He now finally contended that the material fact of sale was pleaded but they were not required to plead subordinate fact which is required to prove the material fact. He submitted the learned trial judge acted upon admissible evidence.
It was pleaded at paragraphs 4, 5 and 6 of the amended statement of claim, in connection with this issue, as follows:-
“4. By an oral agreement made some times in July, 1994 between the plaintiff and the 1st Defendant, the 1st Defendant agreed to sell and the plaintiff agreed to buy premises (shop) situated at and known as No.3B, Galadima Road, Kano at the price of N170,000.00 (one hundred and seventy thousand Naira only).
- Pursuant to the said agreement, the plaintiff duly paid to the 1st Defendant the sum of N10, 000.00 (ten thousand Naira only) as deposit in respect of the said purchase price and the plaintiff has at all material times been and is now ready and willing to fulfill and perform all obligations of the said agreement.
- While the sale was subsisting, the 1st Defendant purportedly sold the said premises to the 2nd Defendant.
These averments were traversed in the joint statement of defence of the first and second respondents at paragraphs 2, 3, 4, 5 and 6.
“2. the defendants denies paragraph 4, of the statement of claim and thereby put the plaintiff to strict proof thereof and the 1st Defendant avers that sometimes in July, 1994, the plaintiff approached him and asked that he learnt that the 1st defendant is desirous of selling his property situate at No.3B, Galadima Road, Kano.
- the 1st defendant avers that he answered the plaintiff in the affirmative, but he is not selling to any person when his tenant the 2nd defendant indicated that he is not interested in purchasing same.
- the 1st defendant further avers that the plaintiff then told him that in the event of the 2nd defendant declining to pay for the property in question he is offering the sum of N10,000 deposit and when it is confirmed that the 2nd defendant is not interested he will pay the sum of N160, 000 (one hundred and sixty thousand Naira).
- the defendant denied paragraph 5 and 6 of the statement of claim and the 1st defendant avers that what was contained in paragraph 4 was the actual position between the plaintiff, and the defendant.
- the defendant denied paragraph 7 of the statement of claim and further avers that there was no (sic) valid and subsisting agreement between the plaintiff and the 1st defendant and further avers that the transaction between the 1st and 2nd defendants was valid and subsisting.” (Underlining mine).
The principle of natural justice – audi alteram partem – requires not only that both parties be heard but also that neither of the parties be allowed to take the other by surprise by raising a fresh issue at trial: Etok Ati & Another v. Ekpeyong & others (1963) 7 ENLR 21, Wahorn v. George Wimpey & Co. Ltd (1969) 1 WLR 1764 and Obimiami Brick and Stone Ltd. v. African Continental Bank (1992) 3 SCNJ 4, (1992) 3 NWLR (Pt.229) 260.
It is settled law that in civil proceeding such as in the instant appeal, it is cardinal principle of pleadings that material fact, must be pleaded and where such facts are not pleaded evidence led thereon go to no issue and must be discountenance, where they are inadvertently admitted they should be ignored or expunged by the trial court or even on appeal- George & others v. Dominion Flour Mills Ltd (1963) 1 All NLR 71, Ogbodo Adelugba (1971) 1 All NLR 68, 73; Njoku & others v. Ukwu Erne & others (1973) 5 SC 113; Abosede Williams v. Oladapo Williams & Another (1974) 3 SC 83.
Order 25 Rule 4(1) of the Kano State High Court (Civil Procedure) Rules seems to support the submission of the learned counsel for respondents to the effect that respondents are only required to plead or allege in their pleadings material facts and only material facts and must not state evidence or subordinate facts by which the facts are to be proved; Rule 4(1) of Order 25 of the Kano State High Court (Civil Procedure) Rules provides as follows:-
“4. (1) Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates sums and numbers shall be expressed in figures but may also be expressed in words. Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person.” (Underlining mine)
And in Williams v. Wilcot (1838) A & E 314, 331; 112 E.R. 857, 867 Lord Denman, C.J. said-
“pleading that, when a state of facts is relied on, it is enough to allege it simply without setting the subordinate facts which are the means of proving it or the evidence sustaining the allegation.”
It is only relevant facts which are material that should be pleaded all other relevant facts must be taken as mere evidence sustaining the allegation Davy v. Garrett (1877) 7 Ch D 473 and Susano Pharmaceutical Limited v. Sol Pharmaceutical & Another (2001) 6 WRN 45, 52; (2000) 4 NWLR (Pt.651) 60, where it was held that-
“It is trite law that it is not incumbent on party to a suit to state in the pleadings the subordinate fact which he intends to use in proving the material facts. Pleadings should always contain material facts and not evidence”.
The respondents are not required to plead subordinate fact or facts which are mere evidence with which the material facts would be established; all that is required of them on the authorities is to plead the material facts and only material facts. The question now is whether the respondents did plead the material fact in the circumstance. The averments in point are contained in paragraphs 3 and 4 of the joint statement of defence which had been quoted elsewhere in this judgment but would be repeated immediately hereunder for easy reference:-
“3. the 1st defendant avers that he answered the plaintiff in the affirmative, but he is not selling it to any person until when his tenant, the 2nd defendant, indicated that he is not interested in purchasing same.
- the 1st defendant further avers that the plaintiff then told him that in the event of the 2nd defendant declining to pay for the property in question he is offering the sum of N10, 000.00 deposit.” (Underlining mine)
These averments were neither denied nor controverted by the appellant. The material fact which needs to be pleaded and has been pleaded is that the second respondent has priority of purchase over and above every other person who might be interested in the property. The right of purchase of other interested persons may only accrue if the second respondent declines to purchase the property or where he has not declined, as in the circumstance of this case, he could not immediately muster the wherewithal to effect the purchase. It would be unnecessary, in my respectful view, to plead, though relevant facts, mode or time of payments of the price. The time or extensions of time within which to pay is a matter of evidence once the second respondent, in the circumstance, has indicated his interest or has not declined the offer to purchase the property. The second respondent having not declined to purchase the property, the appellant could not compel the first respondent, on the pleadings, to sell the property to him.
There is no substance in the other point raised in this issue touching upon payment of N10, 000 by the appellant to the first respondent which the learned trial judge held to be security for performance that the first respondent would not sell to any other person except the appellant in the event of second respondent’s failure to buy. The view taken by the learned trial judge is consistent with the pleadings of both parties who alleged that the payment was a deposit. The appellant did not aver that it was an advance or part payment the respondent pleaded in paragraph 4 of their statement of defence inter alia that:-
“the 1st Defendant further avers that the plaintiff then told him that in the event of the 2nd defendant declining to pay for the property in question he is offering the sum of N10, 000.00 deposit.”
The first respondent, in this regard, gave evidence substantially in support of this averment when he said:-
“…the plaintiff came to ask if I wanted to sell the shop. I answered yes but said that I was still negotiating with Alhaji Ya’u Dankunne. At this stage the plaintiff and one other friend then told me that if Alhaji Yau Dankunne was no longer willing to buy, I should sell to them. They gave me the sum of N10, 000.00 as a security to hold.”
On the other hand, the appellant pleaded in paragraph 5 of the statement of claim that-
“5 Pursuant to the said agreement, the plaintiff duly paid to the 1st Defendant the sum of N10, 000 as deposit in respect of the said purchase price…”
The appellant gave evidence of how he went to pay the purchase price in company of his friend and the first respondent took only N10, 000 thereof and urged him to keep the balance until he sent his servant, Sale to collect the balance. This piece of evidence led by the appellant is materially inconsistent with the averment contained in paragraph 5 of the statement of claim which agrees essentially with respondent’s paragraph 4.
Appellant who told the court he went to pay in company of his friend failed to call the friend to support the bull and cock story he told the court. The learned trial judge who saw the witnesses testified before him after considering the stories of both parties preferred the first respondent’s evidence to that of the appellant. He rejected impliedly appellant’s claim that the money was paid as security performance that appellant would pay the outstanding balance of N160, 000.00; Rather the court found that it was a deposit to ensure that first respondent would not sell to any other person except appellant should second respondent fail to exercise the preference to purchase. The finding is, contrary to the submission of the learned counsel for appellant that it is not supported by scintilla of evidence, supported by unchallenged evidence of first respondent which the learned trial judge accepted. It has not been shown to be perverse. The payment cannot be equated to part payment in a contract of sale of land under English Law nor “advance” payment in the custom among Hausa which, in any case, had not been pleaded because the purpose of this payment had been adequately explained. It was to ensure that the appellant was allowed to purchase the property in the event the second respondent declined to accept the offer made to him. That is the agreement between the parties which had not been shown to be illegal.
The appellant knew that he could not buy the property except the second respondent could not afford to pay for it. How then does he make part or advance payment? The court cannot rewrite what the parties have agreed to. It is the duty of court to enforce contract made by parties and not to write one for them.
This issue is resolved against the appellant. Therefore grounds 3 and 4 of the grounds of appeal related thereto fail and are dismissed. On appellants issue (a), it was contended, on his behalf, in his brief that, from paragraphs 2, 3 and 4 of the statement of defence of the first and second defendants that the plaintiff was not told that the premises was sold to the second defendant. Learned counsel submitted that there are plethora of authorities to the effect that evidence led at trial on unpleaded facts goes to no issue- A.C.B. v. Haston (Nigeria) Limited (1997) 8 NWLR (Pt.515) 110, INCO-Tariah v. Goodhead (1997) 4 NWLR (Pt.500) 94, Uzochukwu v. Eri (1997) 7 NWLR (Pt.514) 535. Learned counsel then argued that, in the instant appeal, there was no admissible evidence led by either party capable of supporting the question formulated by the learned trial judge. He went on to contend that only the appellant and the first respondent testified and the evidence of the appellant from which the learned trial judge formulated his question reads as follows:-
“What the court should therefore do is now to examine the whole evidence of the plaintiff who is P.W.1 to see if he has established any specific right of contract capable of enforcement under the law. Under the examination in chief what the plaintiff told the court was-
He told me that he wanted to sell his House at No.3B Galadima Road, Kano and if I am interested I could buy it. If I am not interested I should bring someone. When I indicated that I was interested he told me that he had negotiated with someone (2nd Defendant) but refused to pay. He told me that he had sold it to him at N200, 000.00 but failed to pay. I told him that I would not be able to buy it. But I told him that the house would worth N130, N140 or N150 thousand. I told him to call anybody else to prize (sic) the property and would tell him the same thing.
I again showed my interest to purchase the property but asked me to increase the property for him. After about 7 days of negotiation, he agreed to sell to me at N170, 000.00…” (Underlining mine)
Learned counsel for appellant went on to contend that the learned trial judge from the above evidence made the following erroneous findings:-
“The above pieces of evidence showed that the plaintiff was aware that property had been sold to the 2nd Defendant, but it was because the 2nd Defendant had not paid for it that made him to now want to buy the property.”
He then submitted that the finding does not flow from the evidence before the trial court but the conjecture of the learned trial judge. Having already resolved the issue of pleadings in issue (b), I do not propose to further entertain it to avoid duplicity.
In my respectful opinion, there is no substance in the submission of the learned counsel for appellant that the above finding of the learned trial judge was not supported by evidence, but a mere conjecture. It is a finding having its firm root in unequivocal and unambiguous admission of the appellant in his evidence in chief when appellant told the trial court that:-
“…he told me that he had negotiated with someone (2nd Defendant) but refused to pay. He told me that he had sold it to him at N200, 000.00 but failed to pay.”
The assailed finding of the learned trial judge on this piece of evidence recited above is unassailable. Apart from the above piece of evidence excerpt from the appellant’s evidence in chief the same appellant under cross-examination agreed that the first respondent informed him that the property had been sold and the purchaser had not paid. And the purchaser had not told the first respondent that he was no longer interested in the purchase. In this connection the appellant, under cross-examination, testified thus:-
“It is true that the 1st defendant told me that he had sold the property to 2nd defendant but the 2nd defendant had not paid. He only told me that he had refused to pay but not that he did not want to buy again. It is true that 2nd defendant was a tenant to 1st defendant hiring the upstairs of the property.” (Underlining mine)
Although learned trial judge did not recite the above passage in his judgment, he nevertheless took cognizance of this cross-examination in his judgment at page 21 lines 18 to 21 thereof.
Assuming the learned trial judge did not do so, without so deciding, the above cross-examination is a piece of evidence emanating from the appellant that he was aware that the property had been sold to the second respondent. It follows that the finding of the learned trial judge is not only supported by the appellant’s evidence in chief, the same is reinforced by the testimony of the appellant elicited from him during the cross-examination. The learned trial judge, therefore, rightly or properly found that the appellant was aware that there was already a valid sale of the property in dispute to the second respondents. Where there is evidence supporting the findings or decision of the trial court this Court will not interfere with such findings or decision – Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511, 525. In view of the fact that there is evidence imputing knowledge of previous sale to the appellant prior to his purported purchase, the case Cooperative and Commerce Bank (Nigeria) Plc v. Ogochukwu Okpala (1997) 8 NWLR (Pt.518) 673, 693 cited in the appellant’s brief has no relevance to the determination of the instant appeal.
The learned trial judge, after taking evidence of both parties and hearing their respective counsel’s addresses, he went ahead with assessing and evaluating evidence adduced and ascribing probative value to evidence of the witnesses, whom he saw and heard testifying from the witness box, after weighing the evidence of one witness against the other, where appropriate, and making up his mind which version he prefers. This is the primary responsibility of the trial court and cannot be interfered with by an appellate court except it is perverse. Morah v. Okwuayanga (1990) 1 NWLR (Pt.125) 225.
The learned trial judge having settled the issue of ascription of probative value to the testimony of the witnesses, considered the law applicable to the appellant’s claim which was an order of specific performance of a contract of sale of property between the appellant and the first respondent. The learned trial judge found that the general principle of law governing the doctrine of specific performance is as laid down under the Roman Dutch Law. He then read from Okonye Ngwu and others v. Augustine Nnaji (1991) 5 NWLR (pt.189) 18, 25. The learned counsel for appellant is not challenging the authority upon which the learned trial judge pegged his decision rather he apparently impugned the direction the learned trial judge directed himself after reading the authority, not on the ground of misdirection, but on the basis that the finding was not supported by evidence. The direction is that:-
“It is clear that under our own law that a party seeking specific performance of a contract must establish to the satisfaction of the court a credible evidence of some specific right or contract which the court can enforce. What the court should therefore do is now to examine the whole evidence of the plaintiff who is P.W.1 to see if he has established any specific right or contract capable of enforcement under the law…”
In the circumstance, it is not necessary to consider question of misdirection since the hangar upon which learned counsel for appellant hanged his grouse was want of admissible evidence to justify the finding of the learned trial judge after directing himself. I have earlier, in this judgment, observed that the conclusion or finding of the learned trial judge that the appellant “was aware that the property had been sold to the 2nd defendant, but it was because the 2nd defendant had not paid for it that made him to now wanted to buy the property” to be supported by evidence. Hence, contrary to the contention of the learned counsel for appellant, there is admissible evidence in support of the finding of the learned trial judge.
Appellant’s issue (a) is answered in the affirmative. Grounds 1 and 2 of the grounds of appeal from which the issue was framed fail and are dismissed. All the grounds of appeal, having been resolved against the appellant, the appeal fails and it is dismissed with costs which are assessed at N4, 000.00 to respondents.
Other Citations: (2002)LCN/1068(CA)
