Alhaji Garba Dan Sakare V. Alhaji Salawu Bello (2002)
LawGlobal-Hub Lead Judgment Report
T. MUHAMMAD, J.C.A.
Paragraph 19 of the plaintiff’s statement of claim makes the following claim against the defendant:-
“19. WHEREOF the plaintiff claims as follows:-
(i) Declaration that the plaintiff suing for and on behalf of Jamatu Nuru Islam is bona fide purchaser for the value and rightful owner of the said piece of land situate and lying at No. Z 43 Nassarawa Gwom, Jos.
(ii) Perpectual (sic) injunction against the defendant his agents, servant, privies and any other person or persons deriving authority from the defendant from further trespassing on the said piece of land situate and lying at No. Z 43 Nassarawa Gwom, Jos.
(iii) Any other relief that this Honourable Court may deem fit to make in the interest of justice.”
Paragraph 19 of the statement of defence contains defendant’s denial of plaintiff’s claim.
The High Court of Justice Plateau State (Lower Court) heard and determined the suit. The learned trial Judge on the 9th of June, 97, granted all the reliefs sought by the plaintiff. Dissatisfied, the defendant filed a notice of appeal containing three grounds. Leave of court was sought and granted on the 4th day of October for the appellant to file additional grounds of appeal sequel to which six grounds were filed.
Parties filed their briefs of argument in this court. Learned counsel for the appellant distilled six issues for the determination of this court. These issues are:-
“i. Whether from the entire evidence placed before the trial court, can the respondent be said to prove that appellant sold the disputed plot of land to Alhaji Lawal Bello who in turn sold same to the respondent thereby conferring on him (respondent) a valid title to the said plot of land.
ii. Whether the trial court acted rightly when it suo motu relied on the evidence of Alhaji Lawal Bello in exhibit 3 (record of proceedings of a previous suit) and when it did not give the appellant the opportunity to comment/or be heard on same, to arrive at its decision in favour of the respondent.
iii. Whether the trial court rightly ignored the evidence of PW2 in its judgment and whether by so ignoring the evidence of PW2, the trial court had not ignored evidence that did not only support the case of the appellant materially, but which evidence amounted to a tacit admission by the respondent of the appellant case.
iv. Whether the use to which the trial court put exhibit 3 (a record of previous proceedings) in the present suit, is not contrary to law.
v. Whether exhibits 1 and 2 are admissible documents in law and whether the trial court rightly admitted same in evidence.
vi. Whether it is not speculative and contrary to law the trial court’s holding that appellant confirmed in his evidence in exhibit 3 that he sold the plot of land to Lawal Bello and that he (appellant) was present when the change of ownership was effected.”
The respondent formulated 4 issues. They read as follows:-
“1. Whether the plaintiff (now respondent) proved his case as required by law to entitle him for his reliefs.
- Whether the trial court validly rejected the evidence of the defendant (now appellant) and PW2 who was also DW 1 (Alhaji Lawan Usman) having contradicted their earlier evidence in exh. 3, the proceeding at the Area Court.
- Whether it is right for the trial Judge in law to examine and make use of all the materials before the court including the evidence of Alhaji Lawal Bello deceased as contained in exh. 3.
- Whether exhs. 1 & 2 are admissible evidence in law.”
Before delving into the issues, it is pertinent to narrate in brief, the facts which give rise to this appeal. The plaintiff represents Jamaatu Nuru Islam, a religious organization. Jamaatu Nuru Islam purchased the piece of land situate at No. Z 43 Nassarawa Gwom, which is now in dispute. The plaintiff was one of the executive members of that religious organization. About 19 years ago he bought a piece of land from one Alhaji Lawal Bello, for and on behalf of the religious organization. In 1975, the plaintiff effected change of ownership at Jos. The plaintiff broke some rocks at the site of the land and built four coaches of block on the said land. After that, the defendant went to the said land, destroyed the structure built by the plaintiff.
The defendant started to build on the piece of land. Aggrieved by these acts, the plaintiff instituted an action against the defendant at the Nassarawa Gwom Area Court. Proceedings of the Nassarawa Gwom Area Court were annexed as exh. 3. It is clear from exh. 3 that judgment was entered in favour of the plaintiff/respondent.
While arguing the appeal learned counsel for the appellant submitted on issue one that the burden of proof was on the respondent as plaintiff to prove his case by virtue of sections 135, 136 and 137 of the Evidence Act, 1990. The production of exhibits 1 and 2 by the respondent he argued further, was not enough to prove respondent’s title to the land in dispute but must go further to prove conclusively the title of his vendor to the said land. He cited the case of Lawson v. Ajibulu (1997) 6 NWLR (Pt.507) 14, (1997) 6 SCNJ 1 at 13. It was wrong of the lower court, he argued, to have used the evidence of the appellant in exhibit 3 to establish the fact that the appellant sold the said land to respondent’s vendor or to anyone else. In the alternative he submitted, the evidence adduced in exhibit 3 did not conclusively establish a valid sale of the piece of land to respondent’s vendor as the appellant denied in exhibit 3 ever selling the piece of land in dispute to the respondent. He relied on Obawole v. Coker (1994) 5 NWLR (Pt.345) 416, (1994) 6 SCNJ (Pt.1) 128 at 140, among others. He concluded that the respondent’s vendor not having shown to have a valid title to the land in dispute, cannot be said to have effected a valid sale of the land.
On issue two, learned counsel for the appellant submitted that the trial court was wrong in considering and relying suo motu the evidence of respondent’s vendor in exhibit 3 in order to find in favour of the respondent. He cited the case of Imah v. Okogbe (1993) 9 NWLR (Pt.316) 159, (1993) 112 SCNJ 57 at 77.
The argument of learned counsel for the appellant on issue 3 is that the evidence of PW2 supported the case of the appellant in its entirety. Again, there was no variation between PW2’s evidence in the trial court and what was contained in exhibit 3 and the trial court wrongly ignored the evidence of PW2 in its judgment. PW2’s evidence ought to have been believed and acted upon. This occasioned a miscarriage of justice to the appellant. Learned counsel cited Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256, (1994) 4 SCNJ (Pt.11) 333 at 375.
On issue No.4, learned counsel for the appellant submitted that it was wrong of the trial court to have made use of exhibit 3.
The reliance by the trial court on exhibit 3 occasioned a miscarriage of justice as the court wrongly went into comparison and evaluation of the evidence of the appellant and that of Alhaji Lawal Bello (Vendor) and concluded, albeit wrongly, that the vendor sold the said piece of land to the respondent. He relied on Alakija v. Abdulai (1998) 6 NWLR (Pt.552) 1, (1998) 5 SCNJ 1 at 11-12; Sambo v. State (1993) 6 NWLR (Pt.300) 399, (1993) 7 SCNJ (Pt. 1) 128 at 140.
On his issue No.5, learned counsel for the appellant argued that for exhibits 1 and 2 (change of ownership and sale agreement) to be admitted in evidence, they ought to have been registered as documents affecting interest in land. He cited sections 3(a) and (b) and 15 of the Lands Registration Law Cap. 58 of Northern Nigeria.
On Issue No.6, learned counsel for the appellant argued that the holding of the learned trial Judge that appellant sold the piece of land in dispute to the respondent’s vendor, is perverse and speculative as exhibit 3 did not state so. He urged this court to allow the appeal.
In his submission, learned counsel for the respondent, on issue No.1 of his issues, stated that the said Alhaji Lawal Bello could not testify in respect of the land in dispute because he fell sick and died while the case was still at trial stage. This was confirmed by both PW1 and DW1. He argued further that the respondent and PW1 gave evidence on how the land was purchased from Alhaji Lawal Bello. They tendered exhibits 1, 2 and 3. Exhibit 3 was tendered, it was argued, in order to discredit the evidence of the appellant and his witness i.e. DW 1 and in order to enable the trial court to use the evidence of Alhaji Lawal Bello contained in exh. 3 by virtue of section 34(1) of the Evidence Act. The evidence of the respondent, PW1 together with that of Alh. Lawal Bello contained in exh. 3, proved that the respondent was the bona fide owner of the land in dispute. Numerous acts of possession were put in place by the respondent, such as blasting the stone, digging the foundation and the building of four coaches all on the land in dispute. Learned counsel argued that on the authority of Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, the respondent had proved his title to the piece of land in dispute.
On issue No.2, learned counsel for the respondent submitted that the learned trial Judge rightly rejected the evidence of PW2 who also testified as DW1 and that of the appellant as their evidence at the trial court contradicted that of the area court put in evidence as exhibit 3, so, since what was left before the trial court was the evidence of the respondent, his witness and the exhibits admitted, the learned trial Judge was right in his judgment and urged this court not to disturb the findings of the trial court.
It was argued for the respondent on issue No 3, that the learned trial Judge rightly relied on the evidence of Alh. Lawal Bello (deceased) who sold the piece of land in dispute to the respondent.
Learned counsel relied on section 34(1) of the Evidence Act, 1990.
On issue No.4, learned counsel for the respondent submitted that exhibits 1 and 2 tendered at the trial court were quite admissible to prove the transaction i.e. sale of the plot of land in dispute. They were properly admitted by the trial court. Learned counsel cited the cases of Paye v. Gaji (1996) 5 NWLR (Pt.450) 589 at 593; Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt.4) 783 at 784. He finally urged this court to so hold and dismiss the appeal.
Appellant’s issue No. 1, questions whether the respondent proved that the appellant sold the disputed plot of land to the vendor who later sold it to the respondent. What is clear to me from the record of appeal is that the findings of the trial court show that the appellant sold the land in dispute to the respondent’s vendor one Alh. Lawal Bello who later sold it to the respondent. This is what the learned trial Judge said:-
“It is very clear from the above that the statement of the defendant that he did not sell the plot to Lawal Bello or anybody cannot be true and I reject it. I hold that the defendant sold the plot in dispute to Lawal Bello who in turn sold it to Jama’atu Nuru Islam.”
I took time to go through the whole evidence led before the trial court. I am satisfied that the above finding of the learned trial Judge, is, in my view, quite correct. It is not perverse. I therefore find it difficult to temper with this finding. See U.B.A. v. Achoru (1990) 6 NWLR (Pt.156) 254; Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt.523) 61. Accordingly, I affirm the holding of the learned trial Judge and dismiss appellants issue No. I as lacking in merit.
Issue No.2, questions the propriety of the trial court’s reliance on Alhaji Lawal Bello’s evidence contained in exhibit 3. Learned counsel for the appellant argued that the trial court relied on the evidence of Alh. Lawal Bello in exhibit 3, a previous suit, to hold that the defendant (appellant) sold the plot in dispute to Lawal Bello who in turn sold it to Jama’atu Nuru Islam (respondent). He argued earlier that the respondent’s vendor in the person of Alh. Lawal Bello did not testify in the suit before the lower court. The lower court did not afford the appellant the opportunity to be heard on the propriety or otherwise of the trial court’s considering and utilizing the evidence of Alh. Lawal Bello in the suit.
Let me observe that the record is very clear on the position of Alh. Lawal Bello respondent’s vendor, at the lower court. Alh. Lawal Bello did not testify at the lower court. He died when the suit was at the hearing stage (see the evidence of PW1 and DW1) while plaintiff and PW2 stated that Alh. Lawal Bello was sick and was away in Ogbomoso. In his judgment the learned trial Judge made the following finding and reasoning on Alh. Lawal Bello and why exhibit 3 was admitted:-
“In that case all the parties testified. In this case, Lawal Bello did not testify. He is dead. The record of proceedings in that case was tendered and admitted as exhibit 3. The main purpose must necessarily be to test the veracity and credibility of the evidence of the parties and their witnesses in this case.”
As rightly pointed out by both learned counsel for the appellant and the respondent, exhibit 3 was a previous record of proceeding between same parties, and before Nassarawa Gwong Area Court.
The claim also was on the same subject matter. The position of the law generally on admitting such previous evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it has been succinctly clarified by the Supreme Court. In Folarin v. Durojaiye (1988) 1 NWLR (Pt.70) 351 at 369, Nnaemeka Agu, J.S.C., stated:-
“I believe it to be the law that evidence given in an earlier case by a person who also testified in a later suit may be used for cross examination as to credit only, but is of no higher value than that. See Babatunde Jami Alade v. Lawani Aborisade (1960) SCNLR 398, (1960) 5 FSC 167.”
This decision was later followed and adopted in Sunday Njoku & 2 Ors. v. Nwogbo Elechi & 3 Ors and Jacob Dikibo & 3 Ors. (1998) 1 NWLR (Pt.534) 496 at 522 where it was stated:-
“Evidence given in a previous case can never be accepted as evidence by the court trying a later case except where section 34 of the Evidence Act applies. However, evidence given in an earlier case by person who also testifies in a later case may be used for cross examination as to credit but it is of no higher value.”
Shonekan v. Smith (1964) 1 All NLR 168; Ajala v. Awodele & Anor: (1971) 1 NMLR 127; Morade v. Iskhumen (1978) 4 SC 87; Alade v. Aborisade (supra); Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22. This is in a situation where the witness testifies in both the previous court and in a court which later tries the subject matter. In the appeal on hand, it is clear that even though Alh. Lawal Bello testified at the Nassarawa Gwom Area Court whose proceeding was tendered and admitted as exhibit 3, he had had no opportunity to testify before the lower court. This was because he fell sick and died while the suit was at hearing stage in that court. I agree with the learned counsel for the respondent in his submission that under section 34(1) of the Evidence Act, 1990, the evidence of Alh. Lawal Bello could be rightly admitted and relied on. Now let us examine the provision of section 34(1) of the Evidence Act, Cap. 112, Laws of the Federation, 1990:-
34(1)Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable provided:-
(a) That the proceeding was between the same parties or their representative, in interest;
(b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding;
Converting section 34(1) into a simple graph, the position will look like this:-
Evidence given by a witness in a previous proceeding is relevant for the purpose of proving the truth of the facts which is stated in a subsequent proceeding when:-
(a) The witness is dead or cannot be found; or
(b) Is incapable of giving evidence, or;
(c) Is kept out of the way by the adverse party, or;
(d) When his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case the court considers unreasonable.
Provided:
(a) That the proceeding was between the same parties or their representatives in interest;
(b) That the adverse party, in the first proceeding had the right and opportunity to cross-examine; and
(c) That the question in issue were substantially the same in the first as in the second proceedings.
In the present appeal, I think exhibit 3 admitted and relied on by the lower court, especially the evidence of Alh. Lawal Bello (deceased) has passed all the tests set out by section 34(1) of the Evidence Act. I am therefore of the firm view that the learned trial Judge was quite in order when he relied on exhibit 3 tendered before him and admitted without any objection from the adverse party. I find support in the Supreme Court’s decision in Bayol v. Ahemba (1999) 10 NWLR (Pt.623) 381. Accordingly, issue 2 fails and is dismissed by me.
Issue No.3 alleges that the learned trial Judge wrongly ignored the evidence of PW2 which not only supported appellant’s case but amounted to a tacit admission by the respondent. But in his judgment, the learned trial Judge, after having reviewed the evidence of PW2, who also testified as DW1 found as follows:-
“From Exhibit 3, it appears that what PW2 said here is materially different from what he said in the lower court.
I shall return to these variations very shortly.”
Learned counsel for the appellant argued that the learned trial Judge never returned to the variations as he stated in his assessment of PW2’s evidence. What appears to me is that the learned trial Judge had already made his own position clear on the evidence of PW2, that is, his evidence at the trial court was inconsistent with his previous evidence in exhibit 3. I think it is, in my view, inconsequential that the learned trial Judge did not revisit PW2’s evidence with a view to specifying the variations. Again, on the issue of inconsistency in evidence given in a previous case and one given in a subsequent case, the law is clear that where a witness is shown to have made a previous statement inconsistent with his evidence at the trial, the correct approach is that the court should not merely be directed that the evidence given at the trial should be regarded as unreliable, but should also be directed that the previous statement, whether sworn or unsworn, does not constitute evidence on which the court can act. See Dominic Okolo & 3 Ors. v. The State (1974) 2 SC 73 at pages 80-81, per Irikefe, JSC. It is my view that the learned trial Judge did not ignore the evidence of PW2 as he had already assessed same. Issue 3 lacks merit and is hereby dismissed.
On Issue No.4, i.e. the reliance and utilization of exhibit 3 by the trial court as being contrary to law, I think I have treated this question along with issue No.2, I need not repeat myself. Issue 4 accordingly fails and is hereby dismissed.
Issue No.5, is on the admissibility of exhibits 1 and 2 and whether the lower court rightly admitted same. I already reviewed, earlier on, the submissions of learned counsel for the respective parties. Exhibit 1 was the copy of the original change of ownership of the plot in dispute, which was tendered and admitted through the plaintiff. Learned counsel for the defendant/appellant objected to the admission of the document but was rightly overruled by the learned trial Judge and admitted the document in evidence under the provision of section 94(b) of the Evidence Act. Exhibit 2 appears to be an unnamed document.
But from the appellant’s brief, it is regarded as sale agreement.
This document was tendered and admitted, without objection, through PW2. The correct position of the law is that where evidence was admitted at the trial court without objection or by consent of the parties or was used by the opposite party, it would be within the competence of the trial court to act on it and the appeal court will not entertain any complaint on the admissibility of such evidence.
See Okulade v. Alade (1976) 1 All NLR (Pt.1) 67; Agundo v. Gberbo (1999) 9 NWLR (Pt.617) 71; B.O.N. Ltd. v. Aliyu (1999) 7 NWLR (Pt.612) 622. As it is clear on the record that the appellant did not object to the tendering and admission of exh. 2, same must be admitted and acted upon by the trial court. The learned trial Judge rightly did so. I find it difficult to temper with that decision. Issue 5 fails and is accordingly dismissed.
Appellant’s Issue No.6, which is also the final, alleges speculation by the learned trial Judge in his assessment of evidence.
I already summarized counsel’s submission. Speculation is a mere conjuncture without any solid foundation upon which to rest it. The Dictionary of the English Language (Oxford Advanced Learners Dictionary by Hornby A. S., 5th edition), defines the word “speculate”, to mean “to form an opinion without having definite or complete knowledge or evidence, to guess.” The learned trial Judge, from the record, based his decisions from the evidence led before him. He did not speculate. He did not add or subtract anything from what was put before him. He did his assignment as an umpire. The learned trial Judge relied on exh. 3 in making his pronouncements. Where a trial Judge does all that he is required to do by law, credit, rather than blame should go to him. It is worthy of note that one of the important planks in the Nigerian adversary system of adjudication is that a trial Judge tenaciously acts as an independent umpire, standing majestically at the center of litigation dangling the balance of justice evenly between the parties without fear, favour, affection or ill-will. The moment the Judge tends to move away in favour of one of the parties by rendering the slightest assistance, he then renders himself freely to attack of bias or likelihood of bias. Okeke v. Nwokoye (1999) 13 NWLR (Pt.635) 495. I am satisfied that the findings of facts made by the learned trial Judge were based on credible evidence before his court and not based on speculation. I find it difficult to tamper with his findings. He was in a better position to give correct assessment to all the evidence put before him. He was privileged to see, watch and talk to the witnesses. On matters of documentary evidence he acted in accordance with the provisions of the prevailing laws.
In the final result, I find no merit in this appeal. I affirm the decision of the lower court.
The appellant shall pay N5,000.00 costs to the respondent in this appeal.
Other Citations: (2002)LCN/1081(CA)
