Alhaji Abdulkadir Dan Mainagge V. Alhaji Abdulkadir Ishaku Gwamma (2004)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The appellant in this case who was a defendant in the High Court has appealed to this court against the judgment of the Court of Appeal which confirmed the judgment of the High Court. The respondent as a plaintiff had instituted an action against the appellant claiming as follows:

(a) An order of the court to declare that the house with certificate of occupancy No. NE/1647 situate at G.R.A. Gombe that the plaintiff is the bona fide owner or has title over the said house.

(b) An order of the court ejecting all the defendants from the said house.

(c) Payment of the cost of this action dated this 3rd day of February, 1992.

His case is that he bought a property from the appellant who had bought from one Danladi Muazu and who purchased from the original leasee Alhaji Sale Tango who was granted the certificate of occupancy in respect of that property which was transferred to him by the appellant. It was his case that he asked the appellant to contact Alhaji Sale Tango to apply to the Governor for consent for the certificate of occupancy to be made in his favour which the appellant agreed and which the Governor gave his consent. Pursuant there-to a deed of assignment was prepared and signed and the same was duly registered in the Lands Registry. The appellant denied ever having sold his land to the respondent claiming that before he travelled on a pilgrimage to Saudi Arabia the respondent had given him a sum of N22,000.00 and the respondent had equally requested him to give him the sale agreement of the land in dispute in order to obtain the certificate of occupancy. It was his case that he could not possibly resell the property, he bought for N75,000.00 for N60,000.00.The appellant further counter-claimed and urged the court to declare that the consent obtained from the Governor was fraudulent and is null and void and that the deed of assignment dated 30th October, 1986 should be declared null and void. He prayed the court to further declare that the property covered by the certificate of occupancy No. NE/1647 is his property.

In the High Court, judgment was given to the respondent and on appeal, the Court of Appeal confirmed the judgment of the High Court. Not satisfied with the judgment of the Court of Appeal the appellant appealed to this court and filed 2 grounds of appeal. The appellant had identified only one issue for consideration by this court which is;

“whether on the totality of the evidence on record before the lower court, the respondent has proved his claim against the appellant to warrant the dismissal of the appellant’s appeal”.

The respondent on the other hand formulated the same issue as the appellant. The kernel of the appellant’s case is that though he did not testify in the High Court the success of the respondent’s case should be on the strength of the case he was able to make and not on the weakness of the defence case and he cited Mrs. Hawa Gankon v. Ugochukwu Chemical Industrial Ltd. (1993) 6 NWLR (Pt. 297) 55; (1993) 6 (Pt. 1) SCNJ 263 at 279. He further submitted that where the radical owner of the property is not in dispute the burden on the party alleging change of ownership is on the person claiming the land and cited Lamidi Lawal Obawole and Anor. v. Olusoji Coker (1994) 5 NWLR (Pt. 345) 416; (1994) 6 SCNJ 20. He refered to what he described as contradictions in the evidence of the respondent which he submitted showed that he the appellant had equitable title over the land in dispute and he submitted further that there is evidence that all the documents referred to by the respondent were not registered. He argued fervently that the documents being unregistered are therefore not admissible in evidence to prove or establish title. He cited Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326; (1994) 4 SCNJ (Pt. 1) 161 at 186. He urged the court to hold that the Governor’s consent and the subsequent registration of the deed of assignment were procured by deceit and misrepresentation and are therefore of no value.

The respondent replicando submitted that the appellant called 2 (two) witnesses in the matter in which he asked for a declaratory relief in his counter-claim but he himself did not testify. He further submitted that his testimony had shown that he discharged the onus of proof on him, to wit, by exhibiting the title or ownership of the land over which he claims viz, the Certificate of Occupancy No. NE/1467, which he claimed the appellant voluntarily surrendered to him. He further referred to the sale contract between him and the appellant exhibit 1 the deed of the assignment executed between the parties, and the consent of the Bauchi State Governor authorizing the assignment to him. He submitted that the appellant failed or refused to give evidence to challenge the facts he averred in his pleadings particularly in the counter-claim.

The trial court had in its judgment referred to the concession made by the appellant’s counsel in his judgment when he stated;

“Addressing this court on 14/6/94 Magaji K., Esq. for 1st defendant told the court that the 1st defendant who could not testify called 2 witnesses but after a careful review of the evidence and in the absence of the 1st defendant, he was of the view that the defence is porous. As a Minister in the Temple of Justice, he had no alternative but to submit to judgment as the evidence before the court does not give room for any meaningful argument in favour of the defendants. He therefore on behalf of the defendant submitted to judgment”.

Further below the court stated;

“This is clearly a straight forward case. Although the 1st defendant now the only defendant, (the 2nd to the 6th defendants having been struck off the case at the instance of the plaintiff on 30/6/92 was duly served, entered his appearance and even filed his statement of defence and counter-claim, he appeared twice during the hearing of this suit before disappearing into thin air, he did not testify for himself to support his pleadings or prove his counter-claim. Counter-claim is therefore deemed to have been abandoned and is therefore dismissed against the plaintiff and the 2 defendants to the said counter-claim”.

The High Court ended as follows:

“I agree also with the submissions of the learned counsel for the plaintiff Mu’azu Mohammed, Esq. that the execution and the registration of the deed of assignment exh. 4 of the property covered by the C of O No. NE/1647 by the plaintiff is a clear proof of the title of the plaintiff over the said property as held in Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; (1993) 9 SCNJ 185 at 200. The plaintiff’s evidence not having been challenged by the defendant and the learned counsel to the defendant having admitted of the plaintiff’s claim, I do hereby hold that the plaintiff has satisfactorily proved his case that he is the owner of the said property which he had lawfully purchased from the defendant in 1986”.

What is manifestly evident is that in the court of first instance the learned counsel for the appellant did not have any confidence whatsoever in their case not just on the counter-claim but also on the totality of the appellant’s case.

The appellant had alluded to what he described as conflicting evidence of the respondent but he was not able to identify those contradictions or inconsistencies latent in them if any. He asked that if indeed he the appellant sold the house in question to the respondent why should Alhaji Sale Tango be the person to apply to the Governor. The answer of course lies in the pleading and evidence of the respondent, which runs thus;

“That the plaintiff avers that in order to comply with the statutory requirement of S. 22 of the Land Use Act, both the plaintiff and the 1st defendant went to Alh. Saleh Tango who was the original owner of the land and as no proper transfer of the land to other aforementioned persons the 1st defendant intimated Alh. Sale Tango that, he has sold the house which Alh. Danladi Mu’azu sold to the 1st defendant and the certificate of the said house bore the name of Alhaji Sale Tango on it, as such the 1st defendant mandated Alh. Saleh Tango to apply on behalf of the 1st defendant for the consent of the Governor that he has sold the house to the plaintiff, since it was the name of Alh. Sale Tango that is on the certificate of occupancy No. NE/1647 and the said Alh. Sale Tango applied for the said consent as directed him by the 1st defendant and subsequently the consent was granted in a letter with ref. No. BS/MGO/DLS/LAND/956/24 dated 10th October, 1986 consenting to the sale as agreed and at the trial we shall contend and rely on the aforesaid consent during the trial of this case”.

In his evidence the respondent stated as follows:

“He handed over to me the original C of O No. NE/1647 bearing the name of one Sale Tango, another sale agreement with which he purchased the house from one Alh. Danladi Mu’azu. The title holder disclosed to the Governor’s office the true source of his title before the Governor’s consent was obtained. I bought this house from the 1st defendant directly. The consent and the deed of assignment were not obtained by fraud. I urge the court to dismiss the counter-claims per para. 9 of the counter-claim”.

The appellant’s grouse was that there was no such sale at all. Two witnesses testified for him. The first witness was a tenant in the house and another a woman apparently the wife of the appellant. She testified that her husband told her he owed a sum of N50,000.00 to the respondent. It is important to restate here that the respondent had testified in his evidence that the house was originally pledged to him on a condition that where the appellant failed to redeem the house at a particular date it would be out rightly sold to him. This piece of evidence was not countered either by any of the witnesses or the appellant himself who decided to continue his frolic in Saudi Arabia. It is now settled law that where an evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things the court should accord credibility to such evidence. See Omoregbe v. Daniel Lawani (1980) 3-4 SC 108 at 117 and Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444, Asafa Foods Factory Ltd. v.Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt. 781) 353. See also Adeyemi v. Bamidele (1968) 1 All NLR 31 and Nwabuoku v. Ottih (1961) 2 SCNLR 232.

On the issue of sale agreement exhibit 1 and C of O exhibit 2 the Court of Appeal held as follows;

“The transfer of ownership by Alhaji Danladi to the appellant and from the appellant to the respondent without the prior approval of the Governor did not make it void. Once the said documents, C of O, sale agreement were taken to the Governor after the transaction for his subsequent approval that is enough and sufficient. The consent of the Governor transferring the property to the respondent in exhibit 3 rectified everything. More so when the respondent, caused a deed of assignment to be executed based on the C of O sale agreement and letter of consent by the Governor, now exhibit 4. All these were done by the active participation of the so-called original owner of the property in dispute Alhaji Saleh Tango before his demise”.

In this case the appellant who counter-claimed had for reasons best known to him, not only refused to testify as to the veracity of the assertions in his pleadings but even failed or neglected to call any witness whatsoever to shore up and strengthen the case he strove to make in his counter-claim. (the evidence by way of defence being so weak). The only necessary inference is that he is not serious with this case and has abandoned it most probably because he felt that his case was embarrassingly weak and cannot be sustained. I hold that where a counsel for a party decides to throw in the towel on a reasoning that the case put forward by the party he represents is so manifestly weak and nigh useless and the evidence shows that there is nothing useful to further urge on the court, the court seised with proceedings should give judgment to the other side. The appellant strove to be clever by half by suddenly whipping up a defence that the documents were not registered. He forgot that he had earlier urged the court to hold that the registration was fraudulent and ought to be declared null and void. There was no contra evidence to show how the original C of O came into the possession of the respondent or how he obtained the sale agreement which he the appellant was signatory. His case reminds me of the saying in Macbeth which runs

thus:

“It is like a tale told by an idiot full of sound and fury, signifying nothing”

In my view using the words of the counsel for the appellant, the case of the appellant is porous. It is equally abysmally weak lacking in force or effectiveness. There is no manifest defence to the claim made and there is no pretence of any proof to the counter-claim. The findings of the court of the first instance and the Court of Appeal are not perverse but are conclusions emanating from the facts assiduously considered and apparently subjected to serious scrutiny and appraisal.

In the final result I dismiss the appeal for being without merit. I affirm the judgment of the Court of Appeal. I award N10,000.00 costs to the respondent.

SC.19/1998