Hon. Zulukainaini Edun V. Bola Yusuf (2005)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an appeal by the defendant in the court below, against the judgment of the High Court of Justice Kwara State of Nigeria, delivered by the Honourable Justice J.A. Ibiwoye on 26/4/2000.
The Respondent, as plaintiff in the lower court, had instituted an action against the Appellant, as defendant claiming as per his Statement of Claim thus:
(a) “A DECLARATION that by virtue of the DEED OF ASSIGNMENT Between the plaintiff and the defendant dated the 1st of March, 1997, the plaintiff has become the absolute and beneficial owner of a piece or parcel of land measuring 50ft by 80ft situate, lying and being at Opposite CHRIST APOSTOLIC CHURCH No. 87 TAIWO ROAD, ILORIN.
(b) A DECLARATION that by virtue of DEED OF ASSIGNMENT Dated the 1st March, 1997, between the plaintiff and the defendant the plaintiff is the only person entitled to a grant of a statutory right of occupancy over a piece or parcel of land measuring 50ft by 80ft situate, lying and being at Opposite Christ Apostolic Church No. 87 Taiwo Rd, Ilorin.
(c) N100,000.00 damages for trespass committed by the defendant on the land.
(d) A perpetual injunction restraining the defendant, his agents, Privies and or servants howsoever from further act of trespass on the land.
The defendant in its amended Statement of Defence totally denied the claim of the plaintiff.
Hearing of the case commenced in the lower court in earnest the plaintiff called one witness and testified personally. Five documents were tendered as Exhibits 1 – 5. The defendant in turn testified in his defence and tendered through the PW.1 exhibit B1 and also tendered Exhibit D1 throngh DW.1.
Both learned Counsel addressed the court in details. In a reserved judgment on 26/4/2000, learned Judge of the lower court delivered his judgment in favour of the plaintiff and on page 149 of the Record, it was held thus:
“…. The sum total of all I have been saying is that based on the evidence before the court the plaintiff’s claims succeeded and are hereby accordingly granted”. He then granted all the plaintiff’s prayers.
Being dissatisfied with the above decision, appellant appealed to this court. Because the grounds of appeal were attacked by the Respondent, I now reproduce same without their particulars as follows;
“GROUND 1.
The learned trial judge erred in law, when his Lordship held that “I am convinced that this suit discloses a reasonable cause of action against the defendant.
GROUND 2.
The learned Trial Judge erred in law by admitting in evidence Exhibit 3 (hand written receipt for N50,000.00, dated 26/5/97).
GROUND 3.
The learned trial Judge misdirected himself by neither placing any evidentiary value nor making any pronouncement on exhibit D1 which is an acknowledgement of repayment of N55,000.00 to the plaintiff/Respondent by the Appellant/Respondent.
GROUND 4.
The learned Trial Judge misdirected himself by failing to take recognizance of the fact that the existence of exhibit D1 extinguished the rights created by the Deed of Assignment – Exhibit 4.
GROUND 5.
The learned Trial Judge has misdirected himself when he said that “the sum total of what I have been saying is the based on the evidence before the court the Plaintiffs claims succeed…”
GROUND 6.
The judgment of the learned Trial Judge cannot be supported by the weight of evidence before the court.
GROUND 7.
Additional ground may he filed upon the receipt of the records of proceeding.”
From the grounds the Appellant formulated seven issues for determination set down below as follows:
- Whether the trial court was right in concluding that the suit discloses a reasonable cause of action against the Defendant/Appellant relying solely on the Deed of assignment between the parties, i.e EXHIBIT 4 even though it is clear that there was no approval of either the local or Kwara State government on the purported Assignment.
- Whether the trial Judge was right to have admitted EXHIBIT 4 in evidence and relied on same as basis of His Judgment against the Defendant/Appellant.
- Whether the trial Judge was right to have admitted in evidence EXHIBIT 3 (Hand written receipt of N50,000.00 dated 26-5-97) and relied on it as having been written by the defendant Appellant.
- Having regard to the maker of EXHIBIT D1 and it content being an acknowledgement of repayment of N55,000.00 to the plaintiff/Respondent by the Defendant/Appellant, whether the trial court was right not to have considered it or make any pronouncement on it in the judgment.
- Whether the failure of the trial judge to make any pronouncement on EXHIBIT DI has not affected the case of the Defendant/Appellant.
- Whether the failure of the trial Judge to resolve the issue raised by EXHIBIT D1 has not affected his decision against the Defendant/Appellant. As EXHIBIT D1 being an acknowledgement of repayment of the content of the Deed of assignment EXHIBIT 4.
- Whether based on the totality of the evidence before the court especially Oral EXHBIT 4 and EXHIBIT D1 the trial judge was right in saying;
“The sum total of what I have been saying is that based on the evidence before the court the plaintiffs case succeeds” AND to have awarded damages of N100,000.00 against the appellant.
On his part the Respondent distilled one single issue thus:
“Whether on the preponderance of oral vis-a-vis the documentary evidence placed before the trial conrt by the parties, whether the plaintiff is entitled to the judgment in the trial court.”
The Respondent in addition filed a preliminary objection which he filed along his Brief of argument. He raised the following objections:
“i. That the appeal was not filed within the statutory period of 3 months, accordingly having not sought and obtained the leave of this court before filing the Appeal, the appeal is incompetent and should be struck out.
ii All the Grounds of Appeal are incompetent in that they contravened the mandatory provisions of Order 3 Rule 2, sub-rules 2, 3 and 4 of the Court of Appeal Rules, 2002”.
The main argument and submissions on the Preliminary objection is as contained in pages 3 – 7 of the Respondents Brief. The reply to the Preliminary objection by the Appellant is contained in his reply brief.
My Lords, you will agree with me that we have to consider first the Preliminary objection thoroughly before we move to the main issues in the appeal. If the Preliminary objection is sustained and up held then that is the end of the matter and there may be no need to further discuss the Appellants issues.
If on the other hand, we hold otherwise, then of course the preliminary objection will he refused and the appellants issues will be considered in their own merit.
It will be interesting to note at the onset that the claim of the plaintiff is that he bought the land in dispute for the sum of N55,000.00 and the Deed of assignment or Transfer was duly executed in his favour by the parties and all the title documents in respect of the property were duly handed over to him by the defendant.
The defendant maintained a different stance all together. His case is that he borrowed the sum of N55,000.00 from the plaintiff who took him to his solicitor, who prepared an agreement, In that agreement, it was agreed that the land in dispute be pledged for the money. The parties later changed their minds and agreed that since the plaintiff is not a money lender that agreement based on a money lending will not be appropriate. However the plaintiff’s counsel, with the apparent consent of the parties, agreed to prepare an agreement for the transfer of the laud or assignment of the land to the Respondent herein which will be reversed on repayment of the sum of the said N55,000.00.
When later the defendant through his counsel returned the money (N55,000.00) the plaintiff demanded for interest which the defendant said “it was not part of the agreement.”
As we can see briefly that the Appellant was insistent that he was a mere borrower and since he has returned the money collected from Respondent and was given a receipt in exhibit D1, the property pledged has reversed hack to him. While the Respondent argued that the Appellant had not paid back and the land belonged to him by virtue of Deed of Assignment in Exhibit 4. The lower court in its wisdom entered judgment for the Respondent. So the question was on what has is the lower court based its decision – On a loan (pledge) or on outright sale of the land in dispute?
The critical issue in the preliminary objection is that after the judgment of the lower court was delivered the Appellant neglected to appeal for over a year contrary to the provision of Section 25(2) of the court of Appeal Act Cap. 75 Laws of the Federation of Nigeria, 1990, which provides three months within which to appeal in this type of Civil cause. S.25(1) & (2) Cap. 75 says:
S, 25 (1) 1 Cap. 75.
“Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subjection (2) of this Section that is applicable to the case:
….(b) In an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
Learned Counsel for the Respondent J.O. Adeseko Esq., conceded that the Appellant had filed his Notice of Appeal within time on the 23/5/2000, in the Registry of the lower Court to this Court, however, this Notice of Appeal was on 19/4/2001 withdrawn by the Appellant, who filed a Notice of withdrawal of the Appeal and on the 28/5/2001, the lower court struck out the said Notice of Appeal and the stay of execution earlier obtained by the Appellant was vacated by the lower court and same was discharged.
Learned Counsel again contended that by the time the Appellant applied for relisting of his appeal that had been struck out there was no existing appeal pending.
That being the case, counsel continues, by the time the Appellant came hack to the court to relist his Appeal, after one year, it is as if he is filing a new Notice or Appeal, which was outside the statutory period of three months, therefore leave of this court is required which was not obtained by him.
Learned Counsel for the Respondent then submitted that since the leave of this court was not sought and obtained, the appeal is in competent and should be struck out. He relies on: OGIGE V. OBIYAN (1997) 10 N.W.L.R. (part 52) 179 at 195; ONWE OKE V. NWA OGUNIYA (2001) 5 N.S.C.Q 93; and AKUNEZIRI V. OKENWA (2004) 4 N.S.C.Q.R. 276 at 287.
The second leg of objection is Predicated on the alleged failure of the Appellant to comply with the mandatory provisions of Order 3 Rules 2(2) and (4) of the Court of Appeal Rules, 2002. On the ground that the particulars are not related to the grounds of appeal. He referred to Grounds of Appeal, hence the grounds are vague and confusing. He relies on the case of C.B.N. v. Okojie (2002) 9 N.S.C.Q.R. 612 at 621 per Uwaifo J.S.C.
Learned Counsel for the Respondent also attacked the issues as formulated in excess of the grounds of appeal.
The appellant, in reply, attacked the procedure adopted by the Respondent in raising his preliminary objection as he had failed to comply with the provisions of Order 3 Rules 15(1) of the court of appeal rules, 2002, in that the Respondent did not file twenty (20) copies of the Notice of Preliminary objection. He cites the case of NABURUWA V. OFFODILE (2004) 13 N.W.L.R. (part 891) 599/610, and submitted that the Notice of Preliminary objection is in competent; Afolabi v. Adekunle (1983) 2 S.C.N.L. R. p. 114 S.C.
On the Respondents objection, learned Counsel to the Appellant contended that the Notice of Appeal was filed within time on 23/5/2000, while judgment was delivered on 26/4/2000. He further argued that the hearing of the application to withdraw and the relisting were done in error as the lower court has no jurisdiction to strike out and relist a Notice of appeal addressed to the Court of Appeal. He submitted that since all these there is no need to seek the leave of this court. He relied on the case of Okereke vs. N.D.I.C. 4 F.W.L.R. (2000) Part 100 page 1392/1399. (Italics mines)
Learned Appellants Counsel in his reply brief on page 8 strongly submitted thus:
“…. Since the lower court has no jurisdiction to strike out the APPELLANT’S APPEAL initially, the purported striking – out is null and void and of no erred, as such there was nothing to relist as at the time the lower court was relisting the appeal since it acted without jurisdiction in the first place”. However, if the respondent is dissatisfied with the decision of the lower court relisting the appeal, the proper procedure is to appeal counsel concludes. (Italics mine for emphasis)
On the second leg of the objections the learned Counsel submitted that he fully complied with the provisions of Order 3 rules 2(2), 3 and 4 of the Court of Appeal Rules, 2002.
The Appellant reproduced the grounds of appeal and submitted that they are clear, precise, definite and gives the Respondent a clear picture of its complaints against the judgment. He cited the case of Adesina vs. Arowolo (2004) N.W.L.R. (part 870) p. 601 at holdings 3, 5 and c; Osasona v. Ajayi 10 (2004) N.W.L.R. (part 894) 527/534 and 535, and S.C.O.A. Nig. PLC vs. Mohammed (2004) 4 N.W.L.R. (part 862) p. 20 at 24 holden 6 and 8.
I have carefully considered the submissions of the learned Counsel to the parties and the records of proceedings in this matter. At page 113, while ruling on the application to discontinue the appeal, the lower court held as follows: “In pursuance of the Notice of discontinuance of Notice of appeal dated and filed on 10/4/2001, the stay of execution of the Judgment of this court earlier granted is hereby discharged. After all the stay was granted pending the determination of an appeal of the court of appeal in respect of cause.
The Notice of appeal filed in this court is also hereby struck out.”
On 2/7/2002 at page 128 of the records, the lower court ruling on the application to relist the appeal earlier struck out, and after hearing counsel to both parties, held as follows:
“In the circumstances and in the overall interest of justice, it is my considered view that this application has merit and it must be granted. In the light of this, this application dated 8/2/02 and filed on 26/2/02 is hereby granted as prayed.”
It is this decision that formed the basis of the Respondent’s Preliminary objection. The question that bothers my mind is this: “Whether this decision of the lower court call be questioned by way of a Preliminary objection, without challenging same by way of appeal?
By section 240 of the Constitution of the Federal Republic of Nigeria, 1999, this court was only empowered with the jurisdiction to hear appeals from the lower court.
“Section 240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine Appeals from the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the Federal Capital Territory, Abuja, Customary Court of Appeal of a State and from decision of a court martial or other Tribunals as may be prescribed by an Act of the National Assembly.”
This court’s jurisdiction is limited to those conferred by Constitution, statute and inherent powers of Court of record. Sec Akanke v. Olowu and Ors vs. Amudetu Abolere & Anor (1993) 6 S.C.N.J. 1.
The preliminary objection in the case as to the validity of the Order rclisting the appeal does not qualify as an appeal, which would have afforded this court power and jurisdiction to decide whether the Order as made by the lower court was valid of not since this court has no jurisdiction to determine this issue, I have no option, but to strike it out as being incompetent.
On the second leg of the objection, I have thoroughly gone through the grounds of appeal, which I earlier on reproduced in this judgment, and I found it difficult to justify the position taken by the Respondent in this case. The grounds of appeal are clear and un-ambiguous. Also, I do not see any conflict between the particulars and the grounds of appeal filed. As a result, I also discountenance this leg of the objection and consequently dismiss same.
On the substantive appeal, the appellant submitted that it was wrong for the trial judge to have held that the respondent’s case discloses a reasonable cause of action against the defendant. This is because Exhibit 4 was wrongly admitted. This is so because it was not registered in accordance with section 15 of the “Land Instrument Registration Law of Northern Nigeria. Posthumously, when the said Exhibit was the sole evidence relied on by the lower court to confer title on the Respondent. Also that Exhibit D1 has extinguished the right created by exhibit 4. He referred to A.B.U. vs. Kuyanbana (2004) F.W.L.R. (part 99) 114; Phillips vs. Ogundipe (1967) 1 All N.L.R. p. 258.
The learned counsel also submitted that it was wrong for the trial court to have admitted Exhibit 3, even though the appellant denied any knowledge of same. He further submitted that it was wrong for the trial court to have further failed to consider Exhibit D1. See Sagay vs. Sajure (2002) F.W.L.R. (part 7) 1111. The said document was prepared by the Plaintiffs solicitors acknowledging the refund of the purchase price of the land in dispute. He therefore submitted that the failure of the lower court to assess properly all oral and documentary evidence especially Exhibit D1 had occasioned miscarriage of justice on the defendant. He therefore urged this court to allow the appeal and all the alternative to order a retrial.
The Respondents Counsel submitted that going by the documentary and oral evidence placed before the trial court, the respondent is entitled to judgment. He referred to the findings of the lower court and submitted that Exhibit 3 is admissible and that this exhibit was admitted without any objection. Be cited in support the case of VINCENT V. XTODENS (1993) 6 S.C.N.J. 282. It also referred to Exhibit 4 and submitted that it was admitted as a purchase receipt but not as a title document. He then submitted that payment of purchase price and delivery of possession arc sufficient to affect a valid sale and a valid title by Native Law and Custom. He relics on AKINGBADE V. ELEMESHO (1994) 1 All N.L.R. 154.
He submitted that Exhibit D1 did not extinguish Exhibit 4 as the maker of DW1, said that no payment was made in his presence. He therefore urged this court to dismiss the appeal.
The Appellant in his reply brief reinstated that Exhibit D1 has extinguished exhibit 4.
My Lords, I have earlier, in this judgment, set out the facts of this case. The bottle line issue that needs to be addressed and resolved in this matter, is whether the respondent could still claim the ownership of the property in question in view of the Exhibit D1, which was tendered by the PW.1, the witness to the ]plaintiff/Respondent. Exhibit D1 was written by H.O. Buhari Esq., who at this time material to these transactions was the solicitor to the respondent. In fact it was this solicitor that prepared all the documents relating to the agreement between the parties. Exhibit DI states as follows:
ACKNOWLEGMENT:
“I, H.O. Buhari Esq., of No. 34 Folawiyo Road, Ilorin do hereby acknowledge and witness the payment of the Sum of N55,000.00 (Fifty-live thousand Naira only) being given to Mr. Bola said by Mr. (Alhaji) Oladimeji Z, Edun in my presence and in my house.
At No. 364 Odota Road, Ilorin. The money stated above is meant for the repayment of the or supposed to be repayment in respect of land at No. 57 Taiwo Road, Ilorin between the two parties; Alhaji Oladimeji Z. Edun and Mr. Bola Said.
The transaction occurred on 31/5/97.
Sgd.
H.O. Buhari (31/5/97.”
This exhibit D1 was copiously pleaded in paragraph 8 and 9 of the amendment Statement of Defence but the plaintiff neither denied nor filed any reply to same. It is my considered opinion therefore that Exhibit D1 has extinguished any right created by Exhibit 4; The Respondent having collected the sum of N55,000.00 (Fifty-five thousand Naira) which he allegedly paid for the purchase of the disputed property in Exhibit 4. He cannot therefore approbate and reprobate at the same time. One, they say, cannot have his cake and eat it. It is worthy of note here my lords that throughout the judgment of the lower court, no consideration was given to Exhibit D1, the learned trial Judge did not make any finding on that Exhibit, this is not good enough. This, in my view, has not only led the trial Judge to derail and held as be did, but his decision has clearly occasioned miscarriage of justice – SAGAY V. SAJARE (2000) F.W.L.R. (part 1111) at 1121 Ayoola, J.S.C. has this to say in paragraphs E – F thus:
“Be that as it may, Ejiwnnmi, J.C.A. (as he then was) who delivered the leading judgment of the court had said:
‘In my opinion, as it is the duty of a trial court to make primary findings of fact upon the issues before it, the decision of the learned judge in awarding judgment to the respondent is vitiated by his failure to make definite findings of fact upon issues raised by the parties through their pleadings and the conflicting evidence led during the trial concerning the ownership of the land in dispute. I am in entire agreement with him…”
In this case, no useful purpose will be achieved by ordering a retrial over the issue of exhibit D1. The right allegedly conferred on the Respondent by Exhibit 4 has already been extinguished and put not out by Exhibit D1.
That being the case I will refrain and restrain myself from further considering other issues to do otherwise will be embark on a fruitless exercise by considering academic or hypothetical and theoretical issues – which I have no jurisdiction to do any way.
In essence, I hold that considering the pleadings and the evidence of the parties coupled with the absence of total evaluation of exhibit D1, the plaintiff now respondent totally failed in establishing his case for sale and or purchase of the land in dispute. The claim, therefore before the trial court, deserved to be dismissed and I so hold. Accordingly, the appeal is pregnant with a lot of merit same is hereby allowed. The judgment of the trial court dished out by the Hon. Justice J.A. Ibiwoye on 26/4/2000 is perversed and is hereby set aside. Order for retrial may not be appropriate. There should be an end to litigation.
Other Citations: (2005)LCN/1835(CA)
