Alhaji Rabilu V. Dr. Abdulrahman Usman (2008)

LawGlobal-Hub Lead Judgment Report

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

The Respondent commenced the action in the Lower Court and his claims, by an amended statement of claim dated the 8th of May, 2006, were for:

i. A declaration that the Respondent having accepted the offer to purchase House No. 9, Kaura Road, Badarawa, Kaduna on the 11th of February, 2005, is the lawful holder of all the rights, benefits and enjoyment of that piece of land known House No. 9, Kaura Road, Badarawa, Kaduna.

ii. An order setting aside the purported sale of House No. 9, Kaura Road, Badarawa, Kaduna by the 2nd defendant to the Appellant on the 18th of March, 2005 on the ground that as of that day the 2nd defendant acted in contravention of relevant principles of Islamic Law and no longer had power to so act.

iii. A perpetual order of injunction restraining the defendants, their agents, servants, privies or anybody that is or might be saddled with the responsibility of distributing the estate of Late Col. Yusuf Mohammed from disturbing the Respondent’s possession of the house.

The claims were predicated on an assertion of facts in the

statement of claim. In response, the Appellant filed an amended statement of defence and counterclaim and his claims by the counterclaim were for:

i. A declaration that the purported sale of House No. 9, Kaura Road, Badarawa, Kaduna on the 25th of February, 2005 by the 2nd defendant to the Respondent is unlawful, null and void same being contrary to Islamic legal principles.

In the alternative

ii. A declaration that the Respondent’s failure to pay the purchase price on the 18th of March, 2005 constitutes a breach of contract and that the Appellant’s purchase of House No. 9, Kaura Road, Badarawa, Kaduna is lawful and that the Appellant acquired a valid title.

iii. An order directing the Respondent to vacate and deliver possession of House No. 9, Kaura Road, Badarawa, Kaduna to the Appellant.

iv. N150,000.00 as general damages.

Sequel to the filing of the requisite processes, the matter proceeded to trial and in the course of which the Respondent testified as the sole witness in support of his claims and he tendered exhibits, while the Appellant called four witnesses and also tendered exhibits in support of his counterclaims. After

the close of trial and the taking of final written addresses of the parties, the Lower Court entered judgment wherein it granted the claims of the Respondent and dismissed the counterclaims of the Appellant. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 3rd of September, 2009 and containing five grounds of appeal against it. The notice of appeal was subsequently amended with the leave of this Court and the Appellant filed an amended notice of appeal containing six grounds of appeal and dated the 15th of November, 2013 and the amended notice of appeal was deemed properly filed by this Court on the 27th of February, 2014.

In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 14th of March, 2014 and the brief of arguments was deemed properly filed by this Court on the 26th of May, 2015. In response, Counsel to the Respondent filed a brief of arguments dated the 8th of June, 2015. Counsel to the Appellant filed a reply brief of arguments dated the 30th of October, 2015 on the 3rd of November, 2015 and the reply brief of arguments was deemed properly

filed by this Court on the 23rd of November, 2015. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in this appeal.

?Counsel to the Appellant distilled two issues for determination in this appeal and these were:

i. Whether the Lower Court was justified in granting the claims of the Respondent by awarding title in the disputed property to the Respondent and dismissing the counterclaim of the Appellant having regard to the pleadings of the parties and the evidence led at trial.

ii. Whether the Lower Court was right in applying the Islamic principles of right of pre-emption in the circumstances of this case, when the Respondent has not been shown to be a co-owner of the disputed property and in the light of the pleadings of the parties and evidence led at trial.

?In arguing the first issue for determination, Counsel to the Appellant reproduced the reliefs sought by the Respondent in his claims and the reliefs sought by the Appellant in his counterclaim and stated that it was clear that the dispute between the parties was as to who

between them validly acquired title to the property it dispute. Counsel stated that the pleadings and the evidence led revealed that the basis of the claim of the Respondent was that he was offered the property in dispute first for the sum of N2.2 Million by the Upper Sharia Court, Daura Road, Kaduna and was given three weeks to pay and that he failed to make payment within the three weeks because he was still doing due diligence on the title to the property during that time and that he in fact never made payment for the property. Counsel stated that the case of the Appellant was that he was offered the property in dispute sometime in February 2005 for the sum of N2.2 Million by the Upper Sharia Court, Daura Road Kaduna, and that he accepted the offer but that when he tendered the money for payment, the Respondent showed up saying that he too was interested in buying the property and should be given priority as he was the sitting tenant in the house and that the Upper Sharia Court granted the request of the Respondent and gave him till 18th of March, 2005 to make payment. Counsel stated that it was when the Respondent failed to pay the N2.2 Million by the 18th

of March, 2005 that the property was sold to the Appellant who made payment and was issued with a receipt.

Counsel stated that it was obvious from the case of the Respondent on the pleadings and in the evidence that the Respondent never furnished any consideration for the property either in part or in full and that consideration was an essential element in a contract for sale of property and that where there is failure of consideration, there cannot be said to be a valid contract of sale of property and the Upper Sharia Court was at liberty to rescind the offer of sale; he referred to the case of Chabasaya Vs Anwasi (2010) 10 NWLR (Pt.1201) 163. Counsel stated that, on the other hand, the Appellant paid the consideration asked for in full?and that as such, there was a valid and binding contract of sale in favour of the Appellant and he referred to the cases of Saka Vs Ijuh (2010) 4 NWLR (Pt.1184) 405 and Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547 on the essential elements of a contract. Counsel stated that the assertion of the Respondent that he failed to make payment because he was carrying out due diligence on the ownership of the

property was a ruse as he had been a tenant of the family, on whose behalf the property was offered for sale, for ten years in the said property and that there was thus no basis for the Lower Court to have found in favour of the Respondent on the claim for the ownership of the property in dispute. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.

On the second issue for determination, Counsel reproduced a portion of the judgment of the Lower Court and stated that the finding made by the Lower Court in that portion of the judgment that the prevalent custom amongst Muslims in Northern Nigeria was that first option to purchase a property is given to the tenant and that the said custom was consistent with Shariah Law was erroneous. Counsel stated that the Shariah jurisprudence followed by a large majority of Nigeria Muslims, including the parties in the suit, was the Maliki School of Thought and under this school of thought it is a co-owner of property that is given priority of purchase and not a tenant and he referred to the case of Alkamawa Vs Bello (1998) 8 NWLR (Pt 561) 173. Counsel stated that the Respondent

was a tenant in the property and not a co-owner and as such he did not enjoy any superior right over other potential purchasers of the property and cannot be said to have acquired title to the property simply because he agreed to pay for the property, a payment that he never made, and that even if the Respondent did enjoy any such superior right, he lost same when he failed to pay for the property within the time granted him to pay and the decision of the Lower Court thus had foundation.

Counsel stated further that Respondent did not plead the issue of any custom as the basis for his claim and that evidence on the issue of custom only came into the matter during the cross-examination of the first defence witness and that it was settled law that evidence elicited under cross-examination on facts that were not pleaded was unacceptable and he referred to the cases of UBN Plc Vs Ajabule (2011) 18 NWLR (Pt.1278) 153 and Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt.1079) 172. Counsel stated that the position of law was very clear that where a party relies on a custom, it is a question of fact that must be pleaded and proved by that party through the

testimonies of witnesses and he referred to the case of Abolarin Vs Ogundele (2012) 10 NWLR (Pt.1308) 253. Counsel stated that the Lower Court was thus in error in relying on such custom to found in favour of the Respondent. Counsel urged this Court to resolve the second issue for determination in favour of the Appellant and to allow the appeal.

In his response arguments, Counsel to the Respondent adopted the two issues for determination as formulated by the Counsel to the Appellant. In arguing the first issue for determination, Counsel stated that the Counsel to the Appellant failed to address the very important point, one of the pillars upon which the Lower Court anchored its judgment, and this was that as at the time the property was sold to the Appellant, the Judge of the Upper Sharia Court, Daura Road, Kaduna, the second defendant in the Lower Court, who conducted the sale no longer had power to so act as he had been transferred out of that Court. Counsel stated that facts on this point were pleaded in the statement of claim and the said Judge of the Upper Sharia Court and the Upper Sharia Court were the second and third defendants in the Lower Court

and they did not attend Court or file any processes in the matter to challenge the case of the Respondent and that the Lower Court found that the case of the Respondent against the second and third defendants remained unchallenged and uncontroverted. Counsel stated that having failed to challenge in this appeal the finding of the Lower Court on the want of authority on the part of the second defendant in the Lower Court to sell the property to the Appellant, it meant that the Appellant accepted the finding and this was sufficient to sustain the judgment of the Lower Court as jurisdiction was fundamental and lack of it renders a proceedings null and void and he referred to the cases of Madukolu Vs Nkemdilim (1962) 1 All NLR 857 and Governor of Kwara State Vs Dada (2011) 6 SCNJ 99. Counsel stated that the finding of the Lower Court x-rayed the issue of jurisdiction as canvassed by the Respondent and that the judgment of the Lower Court nullifying the sale of the property to the Appellant cannot be contested in the circumstances.

Going further, Counsel stated that the tenure of the evidence before the Lower Court was that the property in dispute was offered

to the Respondent first on the 11th of February, 2005 and that the Respondent accepted the offer on that same day, and that this was before the property was allegedly offered to the Appellant on the 25th of February, 2005 and the Appellant paid for it on the 18th of March, 2005 and that this was the finding of the Lower Court in the judgment. Counsel stated that the Counsel to the Appellant missed the point on the relevant issue in the dispute and this is who between the Respondent and the Appellant accepted the offer in respect of the property first and not on payment of consideration as extensively argued and that since it was the Respondent that was first offered the property and he accepted, the Upper Sharia Court thus first entered into an agreement with the Respondent on the sale of the property. Counsel stated that the Respondent gave a reason for his failure to pay the purchase price, either in full or in part, within the time agreed which was that he was not given an opportunity to carry out a search to establish the authenticity of the title of the house and that the Lower Court found the reason valid. Counsel stated that the principles of contract

under common law were different from those under Islamic Law and that in a contract under Islamic Law, non-payment of consideration does not automatically void a contract of sale if there is a valid acceptance and capacity to pay unless the purchaser backs out of the transaction within the stipulated period and that as such the offer to and acceptance by the Respondent was still subsisting as at the time the property was offered to and paid for by the Appellant.

On the counterclaim of the Appellant Counsel stated that the dismissal of same by the Lower Court was in order given the state of the pleadings and evidence led and that having affirmed that the Respondent was the lawful holder of all the rights, benefits and enjoyment of the property in issue, it was duty bound to dismiss the counterclaim. Counsel stated that the Appellant did not advance any reason why the verdict on the counterclaim was perverse as required by law and neither did the Appellant show that the Lower Court did not properly evaluate the evidence led by the parties before arriving at its findings and decisions and that the standard of proof in civil cases was balance of probabilities

and that it was not in contest that the Respondent proved his case before the Lower Court on preponderance of evidence and adequately discharged the onus of proof on him. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.

On the second issue for determination, Counsel stated that the basis of the judgment of the Lower Court in favour of the Respondent was not the Islamic law principle of the right of pre-emption as canvassed by the Appellant and that the principle was neither pleaded nor did the parties join issues on it and that the fact that the Lower Court commented and made finding thereon did not make it the reason or basis for the judgment. Counsel stated that what is important in a judgment are the reasons for the decision of the Court which are referred to as the ratio deceidendi and not the statements made by the Court on facts which were not present or not material to the case which are referred to as obiter dictum and that the law is that though a trial Court has a right to make such statements in the course of its judgment, they cannot form the basis of an appeal and he referred to the case of

Nzegwu Vs Nzegwu (2013) 56 NSCQR (Part 1) 133. Counsel urged this Court to discountenance the second issue for determination and to dismiss the appeal and uphold the judgment of the Lower Court.

In the reply brief of arguments, Counsel to the Appellant urged this Court to discountenance the entire arguments canvassed by the Counsel to the Respondent on the issue of want of authority on the part of the party, described as the second defendant before the Lower Court, to sell the property to the Appellant/jurisdiction as they were not tied to the issues for determination formulated by the Appellant as arising from the grounds of appeal and that in the absence of a Respondent’s Notice or notice of cross appeal, Counsel to the Respondent could not make such submissions. Counsel stated that the tenor of the arguments of Counsel to the Respondent on the issue appeared to be urging this Court to sustain the judgment of the trial Court on grounds other than the grounds relied upon by the trial Court in entering judgment in favour of the Respondent and that this cannot be done without the Respondent having first filed a Respondent’s Notice to contend and he

referred to the cases of Emeka Vs Okadigbo (2012) 18 NWLR (Pt.1331) 55.

Reading through the notice of appeal, the judgment of the Lower Court and the arguments contained in the briefs of arguments of the parties in this appeal, it is the view of this Court that there is only issue for determination in this appeal and it is:

Whether on the state of the pleadings and on the evidence led by the parties, the Lower Court was correct in its findings and in its decision to grant the claims of the Respondent and to dismiss the counterclaim of the Appellant.

This appeal will be resolved on this sole issue for determination and all the arguments of Counsel to the parties in their respective briefs of arguments will be considered under this issue for determination.

In deliberating on the issue for determination, this Court considers it pertinent to restate the principles that would govern its approach to the judgment of the Lower Court. It is trite law that an appeal is an invitation to a higher Court to review the decision of a Lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the Lower

Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt.685) 485, Nigerian Navy Vs. Labinjo (2012) 17 NWLR (Pt.1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt.1340) 31. An appeal is against the decision of a Lower Court and challenge to the validity of that decision Chukwuogor V Chukwuogor (2006) 7 NWLR (Pt.979), United Bank of Africa Plc Vs BTL Industries Ltd (2006) 19 NWLR (Pt.1013) 61, Shettima Vs Goni (2011) 18 NWLR (Pt.1279) 413.

Thus, the starting point must be the pleadings of the parties before the Lower Court. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their

respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs Hassan (2014) 5 NWLR (Pt.1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt.1403) 377 at 418 A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt.1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt.1406) 396 at 424G. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt.952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.”

Thereafter, this Court will consider the evidence led before the Lower Court and findings of facts made by the Lower Court from the pleadings and evidence of the parties. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The

second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt.1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt.1257) 193,Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt.1266) 1. The findings of fact made by a trial Court are usually the foundation upon which the final decision of the trial Court is predicated. In considering the findings of facts made by the trial Court, this Court will see whether they were based on facts pleaded by the parties and on the evidence led in proof of those facts.

It is elementary that the parties and the Court are bound by the pleadings and thus a party is not allowed to lead evidence, either in the course of examination in chief or under cross-examination, on a fact not pleaded – Aminu Vs Hassan (2014) 5 NWLR (Pt.1400) 287, Apena Vs Aileru (2014) 14 NWLR (Pt.1426) 111, Agu Vs General Oil Ltd (2015) 17 NWLR (Pt.1488) 327.

?Similarly, a trial Court is not allowed to set up for parties a case different from the one set up by

the parties in the pleadings – Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt.1198) 179 and Baliol (Nig) Ltd Vs Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220) 619. Also, a trial Court must confine itself to the evidence led by the parties on pleaded facts, and on nothing else, in making its findings of fact.

?Where the findings of fact upon which a decision is based are found to run counter to the evidence and pleadings, the decision will be said to be perverse and liable to be set aside – Onu Vs Idu (2006) 12 NWLR (Pt.995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt.1270) 217.

Where the finding of facts are found to be in order, this Court will then see whether the Lower Court rightly applied the applicable law to the facts of the case.

The property in dispute in this case is known as House No 9, Kaura Road, Badarawa Kaduna and the Respondent commenced the action in the Lower Court against the Appellant as well as one Alhaji AbdulKadir Abubakar, a Judge of the Upper Sharia Court, and the Honorable Judge of the Upper Sharia Court, Daura Road, Kaduna as the first second and third defendants respectively. It was the case of the Respondent on the pleadings that the

property in dispute belonged to one late Colonel Muhammed Yusuf and that he had been a tenant in the house before and after the death of the said late Colonel Yusuf and that Alhaji AbdulKadir Abubakar, the second defendant, was the erstwhile Judge of the Upper Sharia Court, Daura Road, Kaduna and that before his transfer from that Court to the Upper Sharia Court 1, Zaria, the second defendant, on behalf of the heirs of late Colonel Yusuf, offered the property in dispute to him for purchase for the sum of N2.2 Million and that he accepted the offer and he was given time to verify the legal status of the house by way of conducting a search. It was his case that before the second defendant could release any document for the purpose of his conducting a search at the Lands Registry, the second defendant was by a letter dated the 11th of January, 2005 transferred out of the Court and the second defendant informed him that he had three weeks to conclude his part heard cases effective from end of January, 2005 and that this was confirmed by the Court officials and that the new Judge of the Upper Sharia Court was unable to give him, the Respondent, any title document

to the property for search purposes.

?It was the case of the Respondent that having been transferred out of the Upper Sharia Court, Daura Road, the second defendant lacked the requisite authority to deal with the property in dispute after the 31st of January, 2005 and that the second Respondent thus acted without authority when it sold the property in dispute by private arrangement to the Appellant in March, 2005, while he was still making frantic efforts to get the title documents for the purpose of conducting a search. It was his case that the latter sale to the Appellant could also not stand having regards to the principle of Islamic law of contract which is to effect that the title and property in the disputed property became vested in the Respondent upon acceptance of the offer of purchase, even without payment of consideration, and that the option opened to the heirs of late Colonel Yusuf was to demand the purchase price from him, and not to rescind the sale, and that this principle was binding on the parties. It was his case that after the latter sale of the property to Appellant, the second defendant gave him three months to vacate the property in

dispute and that the order was ultra vires the second defendant as only a High Court or Rent Tribunal could make such an order.

?The case of the Appellant on the pleadings was that the property in dispute formed part of the properties of late Colonel Mohammed Yusuf that were before the Upper Sharia Court Daura Road, Kaduna in Case No 97/03 for distribution in accordance with Islamic law and that in the course of the said proceedings, the second defendant, on behalf of the heirs of late Colonel Mohammed Yusuf engaged the services of some sales agents to value the landed properties of the late Colonel and to find interested buyers. It was his case that the property in dispute was valued and put forward for sale and he was contacted by the sale agents and he signified his interest to purchase same and that it was in the course of the proceedings in Case No 97/2003 that the second defendant offered the property in dispute to him and he accepted to purchases same for the sum of N2.2 Million. It was his case that it was after the conclusion of the contract and when he was about to pay that the Respondent showed up and pleaded that he should be given an

opportunity to purchase the property as the tenant in occupation and that the second defendant erroneously and wrongly obliged the request of the Respondent and gave the Respondent until the 18th of March, 2005 to pay the purchase price.

It was the case of the Appellant that before this incident, the Respondent been given several opportunities to purchase the property, but was unable to come up with the purchase price and that again the Respondent was not able to come up with the purchase price and attempted to employ delay tactics by asking for title documents a few days before the 18th of March, 2005 .It was his case that on the 18th of March, 2005, both the Respondent and himself were present before the Upper Sharia Court, Daura Road, with the second defendant presiding and that when the Respondent failed to pay up the purchase price as agreed, he was asked to make payment and he paid the sum of N2.2 Million which was immediately shared amongst the heirs of late Colonel Yusuf and he was issued with a receipt and a certificate of purchase of the property by the second defendant. It was his case that as at the date he purchased the property in dispute, the

second defendant had the requisite powers and jurisdiction to conduct the proceedings and that it was the purported transaction of the Respondent that was wrong under and illegal under the Islamic law of contract and that the second defendant acted rightly by ordering the Respondent to vacate and deliver up possession of the house to him, the new owner of the house.

The records of appeal show that the Respondent testified as the sole plaintiff witness and he tendered five exhibits while the Appellant called four defence witnesses and he tendered two exhibits with their English translations. It is obvious from the pleadings that the Respondent did raise the issue of want of jurisdiction or authority on the part of the second defendant to sell the property in dispute to the Appellant and that the Appellant joined issues with the Respondent on the point. A read through the testimony of the witnesses shows that they both led evidence on the issue. However, reading through the judgment, the Lower Court did not consider the issue in its deliberations and did not make any finding of fact thereon. The term “finding of fact? means a determination of a fact

by the Court, averred by one party and denied by the other, and founded on evidence in a case. In Fointrades Ltd Vs Universal Association Co. Ltd (2002) 8 NWLR (Pt.770) 699 it was held that any affirmation of fact in a judgment may loosely be referred to as a finding on that fact, but that the term “finding of fact” is more appropriately employed to describe as affirmation of fact made by a Court after, considering evidence.

?No such affirmation of fact on the issue of want of jurisdiction or authority on the part of the second defendant to sell the property it dispute to the Appellant was made by the Lower Court in the judgment. In fact, the issue was not considered at all by the Lower Court in its deliberations in the judgment. The assertion of Counsel to the Respondent that the Lower Court made such finding of fact is not borne out by the contents of judgment and is thus incorrect. The issue of want of jurisdiction or authority on the part of the second defendant to sell the property in dispute to the Appellant could thus not have been “one of the pillars upon which the Lower Court anchored its judgment”, as stated by Counsel to the Respondent.

It

is correct that in making the final orders in the judgment, the Lower Court granted the second relief sought by the Respondent and it set aside the sale of the property in dispute to the Appellant by the second defendant on the ground that as at the time of sale the second defendant no longer had the power to so act having been transferred out of that Court, the order was not based on any finding of fact made by the Lower Court on that issue. This order had no foundation in the reasons given by the Lower Court for its decision in the judgment. The issue of want of jurisdiction or authority on the part of the second defendant to sell the property in dispute to the Appellant was not part of the ratio decedendi of the judgment of the Lower Court and there was thus no obligation on the part of the Appellant to appeal against it. It is elementary that the complaint of an appellant in an appeal must be directed at the ratio of the decision in the judgment – Acmel (Nig) Ltd Vs First Bank of Nigeria Plc (2014) 6 NWLR (Pt.1402) 158, Federal Republic of Nigeria Vs Mohammed (2014) 9 NWLR (Pt.1413) and Okonkwo Vs Okonkwo (2014) 17 NWLR (Pt.1435) 18. It was for the

Respondent to have cross-appealed against the failure of the Lower Court to make a finding on the issue or to have filed a Respondent’s Notice to contend that the judgment of the Lower Court be affirmed on that ground if he was desirous of making it an issue in this appeal – Federal Republic of Nigeria Vs Obegolu (2006) 18?NWLR (Pt.1010) 188, Ugbu Vs Orsal (2014) 11 NWLR (Pt.1417) 50 and Enukeme Vs Mazi (2015) 17 NWLR (Pt.1488) 411. Having not done either in this appeal, the entire arguments of Counsel to the Respondent on want of jurisdiction or authority on the part of the second defendant to sell the property in dispute to the Appellant are foundationless and are hereby discountenanced.

Similarly, and as is obvious from the arguments of Counsel to the parties, the Lower Court deliberated at length in the judgment on whether or not it was a prevalent custom amongst Muslims in Northern Nigeria that when a house is to be sold, the tenant is given priority or the first option to buy. Reading through the respective cases of the parties on the pleadings, neither of them pleaded any such custom as the basis for their claims and they did not join issues on it.

The existence of such a custom was not one of the issues submitted by the parties to the Lower Court for adjudication and resolution. This fact was conceded by the Counsel to the Respondent. It is an elementary and fundamental principle for determination of disputes between parties that judgment of Court must be confined to the issues raised and joined by the parties. It is clearly not competent for the Judge to make a case for either or both parties and then proceed to give judgment on the case so formulated contrast to the case of the parties before him Commissioner for Works, Benue State Vs Devcon Development Consultants Ltd (1988) 3 NWLR (Pt.83) 407 and Peterside Vs Fubara (2013) 6 NWLR (Pt.1349) 156. The entire comments made by the Lower Court on whether or not it was a prevalent custom amongst Muslims in Northern Nigeria that when a house is to be sold the tenant is given priority or the first option to buy are baseless and are hereby set aside and they will not form part of the consideration of this Court in this appeal.

The facts of this case, as can be gleaned from the pleadings of the parties and the evidence led by the parties, are pretty

straightforward. The property in dispute, House No 9, Kaura Road, Badarawa Kaduna, belonged to one Late Colonel Mohammed Yusuf and the Respondent was a tenant in the said property. Sequel to the death of the said Late Colonel Yusuf, the property formed part of the properties of late Colonel Mohammed Yusuf that were before the Upper Sharia Court, Daura Road, Kaduna in a proceeding in Case No 97/03 for distribution in accordance with Islamic law amongst his heirs. The Upper Sharia Court presided over by second defendant, on behalf of the heirs of late Colonel Mohammed Yusuf, engaged the services of sales agents to value the landed properties of the late Colonel, inclusive of the property in dispute, and to find interested buyers. The property in dispute was valued and put forward for sale and the Appellant was approached by the sale agents and he signified his interest to purchase the property.

The Appellant attended the Upper Sharia Court on the 25th of February, 2005 and in the course of the continuation of the proceedings in Case No 97/2003, the Upper Sharia Court presided over by the second defendant offered the property in dispute to him and he accepted

to purchase same for the sum of N2.2 Million and the Appellant left for his bank to withdraw funds to pay for the property. On the return of the Appellant to the Upper Sharia Court to make payment, the Respondent showed up and pleaded that he should be given an opportunity to purchase the property as the tenant in occupation and the second defendant obliged the request of the Respondent on the condition that the Respondent should pay the agreed price of N2.2 Million on or before the 18th of March, 2005. The Counsel to the Respondent subsequently addressed a letter dated the 4th of March, 2005 to the Upper Sharia Court requesting for the certificate of occupancy or other title documents to the property to enable him conduct a search of the title of the property and the letter was not responded to by the Upper Sharia Court. On the 18th of March, 2005, both the Respondent and Appellant were present before the Upper Sharia Court, Daura Road, with the second defendant presiding, and when the Respondent was requested to make payment and he failed do so, the Upper Sharia Court asked the Appellant to make payment and he paid the sum of N2.2 Million which was immediately

shared amongst the heirs of late Colonel Yusuf and the Appellant was issued with a certificate of purchase of the property by the second defendant.

The letter written by Counsel to the Respondent to request for title documents was Exhibit 1 before the Lower Court while the record of proceedings in Case No.97/2003 before the Upper Sharia Court and its English translation were Exhibits 6 and 6A and the certificate of purchase issued in favour of the Appellant by the Upper Sharia Court and its English translation were Exhibit 7 and 7A. The contents of the record of proceedings in the Upper Sharia Court, Exhibits 6 and 6A confirm the above narrative as the events that transpired before the Upper Sharia Court, and by Section 128 (1) of the Evidence Act, the contents of the document cannot be varied, altered, contradicted or added to by oral evidence. On the strength of the above facts, the Respondent claimed for a declaration that having accepted the offer to purchase the property in dispute, he was the lawful holder of all the rights, benefits and enjoyment of the property and for an order setting aside the sale of the property to the Appellant. And the

Appellant counterclaimed for a declaration that his purchase of the property was lawful and that he acquired valid title to the property and for an order directing the Respondent to vacate and deliver up possession of the property to him.

?In deliberating on the case of the parties, the Lower Court stated in the judgment thus:

“I have given a very careful consideration to the evidence before me vis-?-vis issue number one and the submissions/arguments of counsel. It is worth noting that all the parties, DW2 and DW4 are agreed that the house in issue was advertised to the first Defendant who showed interest and negotiated for same and the price of Two Million Two Hundred Thousand Naira?was agreed upon by all the parties. It was equally agreed by all the persons above that before that before payment of same, the Plaintiff who is the occupant of the house as a tenant, approached the same Court showing interest buy the house. It is also not in contest that the Court acceded to his request and he was given two weeks within which to pay for the house, but that he did not pay within that period saying this was because he was not given the title

documents to enable him carry out a search?

It seems to me that the only reason why this matter is in Court as far as the evidence before me goes, is because the period given to the plaintiff to pay the purchase price of the house in lapsed without his doing so and thereafter the first Defendant was told to pay for same which he did. While the learned plaintiffs counsel contends that the property was sold to the plaintiff and that the contract is completed irrespective of his not paying for it at the time agreed upon, the first Defendant counsel on the other hand is questioning the acts of the Court in suspending the sale to the first Defendant and offering the house to the Plaintiff to buy. ..? (see pages 126 to 128 of the records)

The Lower Court continued thus:

??It is the evidence of the plaintiff that he did not pay the price because he was not given an opportunity as requested by him to carry out a search to establish the authenticity of the title of the house. There is no contrary evidence before me rather, as I noted earlier DW4 actually has corroborated this piece evidence. There is no evidence before me that

the plaintiff was ever given the title document as he had requested and there is no reply to Exhibit 1 which is a letter of request to the Court. ?

It is preposterous to suggest that a buyer would not want to ascertain the genuineness of a property he want to buy before he pays for it. By the evidence of DW4 it seems to me that both the Lower Court, the heirs and the first Defendant were all eager to sell and buy and the lawyers to get their fees and or commission and cared little about the interest of the buyer to be satisfied that he would be paying for something.

I choose to believe the evidence of DW4 that the insistence of the plaintiff to carry out a search did not go down well with others involved with the disposal of the house in issue and therefore acted on their own with the disposal of the house in issue and therefore acted on their own interest only. It is my considered view that the plaintiff had the right as a purchase to want to establish the authenticity of the title by carrying out a search before payment. Since it is in evidence that he requested and demanded to be furnished with the title to no avail, he cannot, in my

considered view, be said to have refused and or failed to pay the price within the three weeks he was given. By Exhibit 1 and the evidence adduced that the property was sold to him 25/02/2005, it is apparent that he wrote the Exhibit 1 within one week of the date he was offered the property. I agree with Mr. Mohammed that if the Court had obliged the plaintiff with the title documents he might have completed the search before the expiration of the three weeks given him to pay of the house. In this circumstance, it would in my view be fairer to give the plaintiff the benefit of doubt

It is true that three weeks was given to plaintiff to pay, but a fundamental step needed by Plaintiff to set the machinery of payment in motion; that is the provision of title document, was denied him..

I am therefore of the considered opinion that this refusal constitutes a breach of contract between the 2nd and 3rd Defendants on the one hand and the Plaintiff on the other which contract in my view has been established by the evidence adduced by Plaintiff is enforceable?? (See pages 130 to 132 of the records).

The above deliberations show clearly that the Lower Court, with respect, did not understand or appreciate the legal issues thrown up for resolution by the facts of this matter, and this lack of understanding and confusion on the issues permeated the entire reasoning of the Lower Court in the judgment. The fulcrum of the case of the Respondent before the Lower Court was that there was a contract between him and the Upper Sharia Court for the purchase of the property in dispute and by reason of which he should be declared the lawful holder of all the rights, benefits and enjoyment of the property. The Respondent predicated his assertion of the existence of a contract of purchase on the fact that an offer of purchase of the property was made to him by the Upper Sharia Court and which offer he accepted.

It is elementary that before there can be a contract, there must be a definite offer, a definite, and unqualified, acceptance of the offer and consideration – Majekodunmi Vs National Bank of Nigeria (1978) 3 SC 779 and Abba Vs Shell Petroleum Development Company (Nig) Ltd (2013) 11 NWLR (Pt.1364) 86.

?An offer is defined as an expression of willingness to

contract made with the actual or apparent intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed. A valid offer must be precise and unequivocal, giving no room for speculation or conjecture as to its real content in the mind of the offeree – Union Bank of Nigeria Ltd Vs Sax (Nig) Ltd (1994) 8 NWLR (Pt 361) 150, Orient Bank (Nig) Plc Vs Bilante International Ltd (1997) 8 NWLR (Pt 515) 37.

An acceptance is the reciprocal or action of the offeree to an offer in which he indicates his agreement to the terms of the offer as conveyed to him by the offeror. It is a final and unqualified expression of assent to the terms of an offer. An acceptance must correspond precisely with the terms proposed in the offer. It is the act of compliance with the terms of the offer – Obaike Vs Benue Cement Company Ltd (1997) 10 NWLR (Pt.525) 435, Udeagu Vs Benue Cement Company Plc (2006) 2 NWLR (Pt.965) 600, BFI Group Vs Bureau of Public Enterprises (2008) All FWLR (Pt.416) 1915.

?Acceptance must be a clear and unequivocal assent to the terms of an offer as conveyed or spelt out by the offeror, without variation –

Union Bank of Nigeria Ltd Vs Ozigi (1991) 2 NWLR (Pt.176) 677, Green Fingers Ltd Vs Yusuf (2003) 12 NWLR (Pt 835) 488. A conditional or qualified acceptance of an offer cannot give rise to a binding agreement between the parties – Okubule Vs Oyagbola (1990) 4 NWLR (Pt.147) 723, Dalek (Nig) Ltd Vs OMPADEC (2007) 7 NWLR (Pt.1033) 402 and Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR 95.

In the instant case, it was not in contest between the parties that part of the terms of the offer of purchase of the property in dispute made to the Respondent by the Upper Sharia Court presided over by the second defendant was the condition that the Respondent pays the agreed purchase price of N2.2 Million within three weeks of the offer. The offer was made on the 25th of February, 2005 and the Respondent was given till the 18th of March, 2005 to make payment. It was not in dispute that the Respondent did not pay the agreed purchase price or any sum at all on or before the 18th of March, 2005. As stated earlier, it is trite law that an offer may only be accepted in the manner and on the terms attached to the offer. Thus if a time frame for performance of a

contract is made part of an offer and the offeree fails to perform the contract within that time frame, he cannot be said to have accepted the offer and the offeror will not be held to a contract – College of Medicine Vs Adegbite (1973) 5 SC 149, Ogunniyi Vs Honorable Minister of the Federal Capital Territory (2014) LPELR-CA/A/320/2009. This point was explained by the Supreme Court in the case of M. O. Kanu & Sons Company Ltd Vs First Bank of Nigeria Plc (2006) 5 SC (Pt.III) 80 per Oguntade JSC, thus:

?In the above Exhibit ?V?, there is no doubt that the defendant offered the plaintiff an opportunity to pay less than was due from the plaintiff to the defendant. The letter however did n to convey an open-ended opportunity. It was an offer conditioned upon the plaintiff paying the sum of N11,996,533.00 instead of N16,724,961.47 on or before 31st March, 1991. The plaintiff did not meet the condition attached to the offer. This was an offer to the plaintiff and the acceptance expected from the plaintiff in the nature of the offer stated, was a performance. It is settled law that if time is made the essence of an agreement and the time

frame is not met by performance or acceptance within the time stipulated, the offeror will not held to a contract? In determining, whether there has been an acceptance, the total circumstances surrounding the offer must be taken into consideration. ? In the letter Exhibit ?V? written to the plaintiff by the defendant, there could be no doubt that the form of acceptance which the defendant expected from the plaintiff was the payment of N11,996,533.00 on or before 31-3-91. This Court cannot hold the defendant to an agreement to accept from the plaintiff the sum of N11,996,533.00, the plaintiff not having paid the sum by 31-3-91??

The reasons for the failure of an offeree to accept and comply with the terms of an offer as conveyed to him are completely irrelevant to the formation of a contract. This is because where an offeror prescribes a method or manner by which an acceptance of the offer is to be carried out or communicated, the offeree must adopt only that method as any other method will render the purported acceptance ineffective – Afolabi Vs Polymera Industries (1967) 1 All NLR 144, Bilante International Ltd Vs

Nigeria Deposit Insurance Corporation (2011) 15 NWLR (Pt.1270) 407.

?The Lower Court ought to have concerned itself only with the question of whether or not the Respondent accepted the offer of purchase of the property by the Upper Sharia Court in the manner of the terms attached to the offer. Having found, as it did in the judgment that the Respondent did not, it should have terminated its enquiry on the issue, instead of embarking on a voyage to nowhere on whether or not the Respondent had a valid reason for not doing so. The alleged reason was not made part of the terms of the offer by the Respondent at the point of negotiation and it was only introduced by the Respondent many days after the firm terms of the offer had

been conveyed to him. The Respondent, by failing to pay the agreed purchase price, or any part thereof, for the property in dispute on or before the 18th of March, 2005, did not consummate the contract of purchase and the contract did not come to life.

?Counsel to the Respondent suggested in his brief of arguments that the transaction between the Respondent and Upper Sharia Court was governed by the Islamic Law of contract and the

principles of which differed in some particulars from the common law principles of contract. The Lower Court in this case is the High Court of Kaduna State and by its enabling statute, the High Court Law of Kaduna State, is presumed to have knowledge of only the principles of common law, of equity and customary law – see Sections 28 to 34 of the High Court Law of Kaduna State Cap 67, Laws of Kaduna State, 1991. Thus, it behoves any party who pleads and is seeking to rely on any aspect of Islamic Law before the Lower Court to lead evidence through an expert in Islamic Law on the relevant aspect of the law he desires to rely on or, where the principle of Islamic Law has been notoriously established by case law authorities, to refer the Lower Court to the relevant case law authorities. The Respondent led no such evidence on the said principles of Islamic law of contract, which he said differed from the common law principles, and neither did his Counsel refer to any case law authorities where the alleged principles of Islamic Law of contract had been asserted and upheld. The suggestion that Counsel to the Respondent in his brief of arguments was thus wishful

thinking and baseless.

A party, as the Respondent in the instant case, cannot claim any right on the strength of a non-existent contract. The judgment of the Lower Court granting his claims was thus perverse and is liable to be set aside.

With respect to the counterclaim of the Appellant, it was not in contest between the parties that when the Respondent failed to pay the agreed purchase price for the property in dispute within three weeks, i.e. on or before the 18th of March, 2005 as stipulated in the offer made to him, the Upper Sharia Court re-offered the property to the Appellant, who had earlier shown interest in purchasing the property before the intervening request of the Respondent to be given the first option to purchase property as a sitting tenant. It was not in contest that the Appellant accepted the offer and paid the agreed purchase of N2.2 Million in full on the same day and he was issued with a certificate of purchase of the property by the Upper Sharia Court, Exhibits 7 and 7A. The Appellant consummated the contract of purchase and thus acquired a valid title to the property in dispute. The Appellant is thus entitled to a declaration

that his purchase of property in dispute was lawful and that he acquired a valid title to the property.

The Appellant also claimed for an order directing the Respondent to vacate and deliver possession of the property in dispute to him. It was a common ground between the parties before the Lower Court that the Respondent was a tenant in occupation of the property in dispute in the lifetime of late Colonel Mohammed Yusuf and that he continued as a tenant in the property after the death of the late Colonel and up till the time of purchase of the property by the Appellant. By the ordinary course of event, the Respondent should have transited to being a tenant of the Appellant. The Respondent did not however, acknowledge the ownership of the property in dispute by the Appellant and he rather commenced the action in the Lower Court claiming ownership of the property against the Appellant. The law is that, in such circumstances, the Respondent has lost the right to be treated as a tenant in the property and is entitled to be ejected at the election of the Appellant. The point was succinctly made by the Supreme Court in the case of Abeke Vs Odunsi (2013) 13

NWLR (Pt 1370) 1 thus:

??”A disclaimer by a tenant of the title of his landlord, or of the person for the time being entitled to immediate reversion as assignee of the landlord, will operate as a waiver by the tenant of the usual notice to quit and will in effect determine the tenancy at the election of the Landlord or other person. This is because, a notice to quit is only required where a tenancy is admitted on both sides, and if a defendant denies tenancy, there can be no necessity to end what he says has not existence. In the instant case, the respondents denied being tenants to the appellant on the property in dispute and they claimed to be owners. By this denial, the respondents were not entitled to statutory notices required to be served on a tenant??.”

Now, the Respondent has remained in possession of the property in dispute since March 2005, about eleven years after its purchase by the Appellant, without being the owner and without payment of rents. There was no indication in the record of appeal that the Respondent, at any time in the course of proceedings before the Lower Court or even in this Court, made any effort to refund the

sum of N2.2 Million paid by the Appellant for the purchase of the house or even to have the matter settled one way or the other. The Respondent was just comfortable retaining possession of someone else’s house. This is unconscionable and smirks of absolute irresponsibility and it is quite unbelievable that a person said to be a veterinary doctor, an otherwise ordinarily responsible person, can behave in such an uncouth manner. The Respondent should not be allowed to continue in possession of the property for a day longer. The Appellant is entitled to the order of possession of the property forthwith.

The Appellant further claimed the sum of N150,000.00 as general damages. In his testimony before the Lower Court, the Appellant predicated the claim for general damages on the fact that the Respondent denied him the use of the house and tied down his money since 2005. General damages is described as damages such that the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results from the injury, or such as did in fact result from the wrong,

directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion

and judgment of a reasonable man – Odogwu Vs Ilombu (2007) 8 NWLR (Pt 1037) 488, Nicon Hotels Ltd Vs Nene Dental Clinic Ltd (2007) 13 NWLR (Pt.1051) 237. It is not in contest that the Respondent has denied the Appellant the use of the house since 2005. The Appellant is entitled to general damages and the sum of N150,000.00 sought for is an understatement in the circumstances.

In conclusion, this Court finds merit in the appeal and it is allowed. The judgment of the High Court of Kaduna State in Suit No. KDH/KAD/212/2005 delivered by Honorable justice Esther Y. Inuwa on the 10th of August, 2009 is hereby set aside. In its stead is entered a judgment dismissing the claims of the Respondent before the Lower Court in their entirety and granting the counterclaims of the Appellant in the following terms:

“i. It is hereby declared that the Appellants purchase of House No. 9, Kaura Road,

Badarawa, Kaduna is lawful and that the Appellant acquired a valid title to the property.

v. An order is hereby made directing the Respondent to vacate and deliver up possession of House No. 9, Kaura Road, Badarawa, Kaduna to the Appellant forthwith.

vi. The Appellant is awarded the sum N150,000.00 as general damages against the Respondent”

The Appellant is awarded the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.

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Other Citations: (2008)LCN/2722(CA)