Alhaji Yusufu Na Bayi V. Rabiu Yalo Kogari (2007)

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BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the High Court of Justice, Katsina State, in its appellate jurisdiction, holden in Malumfashi Judicial Division, delivered by Hon. Justice Sada Abdulmumini in an appeal filed by the respondent at the Upper Area Court Malumfashi against the judgment of the Area Court, Jikamshi which gave judgment in favour of the appellant who was the plaintiff before the Jikamshi Area Court. In its judgment, delivered on the 19th day of October, 2002, the Katsina State High Court set aside the judgment of the Upper Area Court Malumfashi which affirmed the decision of the Area Court, Jikamshi.

The facts leading to this appeal briefly are as follows: One Magaji Kurma now deceased had a farm that shares common boundary with the respondent’s house. As a result, the appellant and late Magaji Kurma used to quarrel every raining season. Because of the mischief usually caused by the’ appellant’s sheep and goats, the late Magaji Kurma promised that whenever he decided to sell his farmland he would sell it to the appellant and in furtherance of that promise, Magaji Kurma, sent his son one Usman to the appellant in respect of the sale of the said farmland. However, Usman sold the farmland to the respondent contrary to his father’s instruction. At the trial Area Court, Jikamshi, Usman admitted being sent by his father Magaji Kurma to offer the farm for sale to the appellant. According to Usman on his way to the appellant’s house, the respondent intercepted him and bought the farmland at the cost of N9,000.00 (Nine Thousand Naira) but Usman did not disclose to his father, Magaji Kurma, that it was the respondent that purchased the farm and not the appellant. Magaji Kurma only came to know about the sale to the respondent at a later stage, having received the purchase price of N9, 000.00 about one month ago. At the trial Area Court Jikamshi, Magaji Kurma informed the court that his intention was to sell the farmland to the appellant who was his neighbour. At the end of the hearing, judgment was entered in favour of the appellant who was the plaintiff and the sale transaction of the farmland to the respondent by Usman, was revoked.

The respondent was aggrieved by the decision of the trial court, Jikamshi consequent upon which, he appealed to the Upper Area Court, Malumfashi, which after reviewing the record of the trial court, Jikamshi affirmed the decision of the Area court, Jikamshi. The respondent was not satisfied with the decision of the Upper Area Court, Malumfashi, as a result, he further appealed to the High Court of Justice, Katsina State, in its appellate jurisdiction. The appeal was heard and judgment delivered by the Katsina State High Court in favour of the present respondent in this appeal who was the appellant before the Katsina State High Court. The Katsina State High Court, inter alia held:

“With regard to the doctrine of neighbourhood raised it only applied to property jointly owned by two or more parties which also has not been ascertained. Once a property belongs to someone and it is ascertained property not jointly owned together with another person, the owner can sell it to anyone of his choice or even give it free by (sic) to any other person not necessarily the person neighbouring (sic) the property……………..

In view of what we have stated above we disagree with the decision on (sic) both the trial Area Court and Upper Area Court. We set aside the decisions of upper which confirmed the decision of the trial court. We confirm the sale of the farmland to the Appellant. Appeal is allowed entirely.”

On the 17th of March, 2005, this Court granted the appellant leave to appeal against the judgment of the Katsina State High Court delivered on 19/10/2001, and also leave to file and serve the notice and grounds of appeal against the said judgment.

In this appeal, only the appellant filed the appellant’s brief dated 25/10/05 deemed properly filed and served by this Court on 27/10/2005.

At the hearing of the appeal on the 22nd day of February 2007, the appellant’s counsel adopted the appellant’s brief and urged the court to allow the appeal.

However, the respondent though duly served on the 16/1/07 was absent, not represented and has not filed the respondent’s brief.

The appellant formulated three issues for determination in this appeal as follows:

“3.1.WHETHER the lower court was not in error of the law by considering the agreement between the appellant and Magaji Kurma is a mere promise to sell.

3.2 WHETHER the lower court was right in holding that there was no offer or acceptance between the appellant and Magaji Kurma.

3.3 WHETHER the lower court was right in disturbing the concurrent findings of both trial Area Court Jikamshi and Upper Area Court Malumfashi.”

Learned counsel for the appellant, Lawal A. Amah, Esq, in the appellants brief dated the 25th day of October, 2005 filed on 27/10/2005 submitted on his issue No.

3.1, that the lower court erred in law by holding that the agreement between the appellant and Magaji Kurma is a mere agreement to sell. That it is trite under Islamic Law of contract that where a man agreed to sell his property to another but then in breach, sells the properly to a third party, the vendor will be ordered to implement the agreement for sale which the seller has broken and to give possession to the person with whom he made the agreement. See DAN-TANKO v. MAIDAKA (1961 – 1989) SHLRN 33. He urged the court to resolve the first issue in favour of the appellant.

On his issue No. 3.2, it is respectfully submitted that an offer capable of being converted into an agreement by acceptance must consist of a definite promise to be bound. The offeror must have completed his share in the formation of the contract. By declaring his readiness to sell to the Offeror. According to the learned counsel for the appellant it is not in dispute that Magaji Kurma offered the farm to the appellant for sale, through his son, Usman. He submitted that the purchase of the farmland by the respondent is a nullity. It is argued by the learned counsel for the appellant that the court in construing an agreement or contract, the meaning to be placed on it, is that which is plain and clear citing OMEGA BANK PLC v. O.B.C. (2005) 21 NSCQR 771 at 773.

Reference was made to page 28 of the printed record by the learned counsel for the appellant who contended that the trial Judge was wrong to have held that there was no offer made to the appellant by Magaji Kurma and urged the court to resolve the second issue in favour of the appellant.

On issue No. 3.3, it respectively submitted by the learned counsel for the appellant that the lower court was in error in disturbing the concurrent findings of both the trial Area Court, Jikamshi and Upper Area Court, Malumfashi without any basis for so doing. According to the learned counsel for the appellant, it is on record that judgment was entered in favour of the appellant based on the admissions of both Magaji Kurma and his son Usman to the effect that the offer was made to the appellant and not the respondent. That it is trite that an appellate court will not disturb the concurrent finding of the lower court where such findings are supported by evidence placing reliance on DABO v. ABDULLAHI (2005) 21 NSCQR 484 at 487; OLADELE v. ANIBI (1988) 7 SCN 24 at 25; ONWUAMA v. EZEOKOLI (2002) 5 NWLR (PT.760) 353 at 359 and LASISI v. ALLIED BANK PLC (2002) 7 NWLR (PT.767) 542 at 548. He urged the court to resolve the3rd issue also in favour of the appellant.

In conclusion, learned counsel for the appellant urged the court to allow the appeal and set aside the judgment of the Katsina State High Court.

It is not uncommon for an appeal court to formulate an issue or issues for determination based on the grounds of appeal filed where the issues formulated by the parties are inadequate for the determination of the appeal: See OGBUNYINYA v. OKUDO (NO.2) (1996) 4 NWLR (PT.146) 551; BANKOLE v. PELU (1991) 8 NWLR (PT.211) 523; LEKWOT v. JUDICIAL TRIBUNAL (1993) 2 NWLR (PT.276) 410; SHA (JNR) V. KWAM (2000) 8 NWLR (PT.670) 685 at 708 – 709. Bearing the above principle in mind, I propose to reframe a sole issue for the determination of this appeal as follows:

“1. Whether the learned High Court Judge, sitting on appeal was right in setting aside the judgment of the Upper Area Court Malumfashi which affirmed the judgment of the Area Court Jikamshi.”

The law is settled that in civil cases while the burden of proof initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses. This is also referred to as the evidential burden. This is good law and good sense. For if a party calls evidence which reasonably satisfies the court that the fact sought to be proved is established, the burden will shift on his adversary against whom judgment will be given if no more evidence were adduced. See OSAWARU v. EZEIRUKA (1978) 6 – 7 S.C. 135; ADEGOKE v. ADIBI (1992) 5 NWLR (PT.242) 410; Sections 137(1) and (2) of the Evidence Act. Cap 112 Laws of the Federation of Nigeria “1990.

The basis of this case before the Jikamshi Area Court leading to this appeal is contained at page 10 of the printed record which reads:

“Alhaji Yusuf Tsakuwa said:

I am suing Magaji Kurma because he sent his Son Usman to me in order to buy the farm, and he sold the farm to Yala without mine (sic) knowledge, even though we have already discussed with him that when ever he is to sale his farm he would contact me.

That is why I filed a suit against them and want this Court to revoked the transaction made between them and affirm the transaction in my favour.”

It appears that the above statement of the respondent before the Jikamshi Area Court was the basis of the appellant’s claim against the respondent. Since it was the appellant who asserts, the burden of proof was on the appellant to prove by evidence. The issue to be ascertained in the instant appeal is whether or not there is a semblance of a legally binding agreement between the parties, that is a situation where the parties to the contract confer right and imposed liabilities on themselves – largely depend on, whether there exists a mutual assent between them. Where there is doubt on whether the parties have concluded a legally binding agreement, the court has the responsibility to analyse the circumstances surrounding the alleged agreement and determine whether the traditional notion of ‘offer’ and, ‘acceptance’ can be distilled from the purported agreement.

The mutual assent must be outwardly manifested.

The test of the existence of such mutuality is objective.

See NORWICH UNION FIRE INSURANCE SOCIETY v. PRICE (1934) A.C. 455, 463. When there is mutual assent the parties are said to be ad idem.

After a careful examination ‘of the printed record, I found that there is no evidence whatsoever, in this appeal of “offer”, “acceptance” and “consideration” between the appellant and Magaji Kurma in respect of Magaji Kurma’s farmland to be regarded as a valid agreement. All there was, was a mere declaration of intent that cannot be regarded also as a mere promise, which is not binding on Magaji Kurma as held by the learned trial Judge. Perhaps, it needs to be emphasize that the farmland transaction, is a normal transaction between individuals which does not involve the application of Islamic law, pertaining to sale of property to a neighbour.

In the case of ITAUMA v. AKPE-IME, (2000) 12 NWLR (PT.680) 156 at 180, the Supreme Court of Nigeria held that finally although some of the issues raised in this appeal border on concurrent findings of facts by the two courts below, an area in which sitting on appeal this Court is usually reluctant to interfere, yet I am inclined, having regard to all I have said herein before, to invoke the principle which has now been established in numerous decisions such as CHIKWENU & ORS v. MBAMALI & ORS (1980) 3 – 4 S.C. 31; OJOMU v. AJAO(1983) 2 S.C.N.L.R 156, ONOBRUCHERE & ANR v. ESEGINE & ANR (1986) 1 NWLR (PT.19) 799 and OLUJINLE v. ADEAGBO (1988) 2 NWLR (PT.78) 238 at 258, to uphold the appeal by interfering with the decisions of the two courts below which ought to be and are hereby set aside.

As I stated earlier, there is no evidence in the instant appeal to support the claim of the appellant of a valid agreement consequently, I agree with the judgment of the learned trial Judge of the Katsina State High Court who set aside the judgments of the Jikamshi Area Court and the Upper Area Court, Malumfashi, which affirmed the revocation of the sale of the farmland to the respondent by Usman the Son of Magaji Kurma, when in fact the sum of N9,000.00 was paid by the respondent being the cost of the said farm which was never returned to the respondent.

In conclusion, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the Katsina State High Court sitting in its appellate jurisdiction in suit No. KTH/MF/11A/99 delivered on the 19th day of October, 2001, is hereby affirmed. I make no order on costs.

Other Citations: (2007)LCN/2379(CA)