Miss Chinye M. Ezeanah Vs Mahmoud I.A. Attah (2004)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, JSC
The appellant and the respondent were in love, or should I say were in some romance. The appellant was the plaintiff in the High Court. The respondent was the defendant. I do not know when the love or romance started. It could be in 1991. It could be earlier. It could be later. Paragraph 3 of the statement of defence seems to say 1991. The appellant said in her evidence that it was in 1993. Let me not attempt to settle that quarrel. I have more serious quarrels to settle. After all, the date of the love or romance is not really important.
The important thing is that things started falling apart. When, I do not know. But I think the affair packed up in 1998. Appellant said so. She said she got married in 1998; not to the respondent. When the relationship was on, appellant went to England in 1994 for further studies. The respondent was in Nigeria. He made the London visits. It would appear the love or romance continued when the appellant was in England.
Although the appellant merely averred in paragraph 2 of her statement of claim that the respondent, a businessman, was “well known” to her, the respondent averred in para 3 of his statement of defence that “both of them agreed to get married.” He specifically denied in paragraph 8 of his statement of defence that he was just “well known” to the appellant. To him, “there was a relationship between them known to the plaintiff’s parents, siblings and relations.
In her evidence in-chief, appellant would appear to have expanded the real meaning of “well known” in her own way. She opened her evidence in the following ten relevant sentences:
“I know the defendant. He is my man-friend. We met early 1993. We had a boy-friend/girl-friend relationship. This caused problem in his family and he decided to send me to England to school in January 1994… He was the chairman of First Bank… He often came to see me in school. Our relationship was normal. Nothing extra-ordinary to it. Issue of marriage had not been discussed though because on several occasions I raised it he would say he had problem as to his sperm count. The issue of marriage therefore did not arise.”
And so the appellant opened up. She expanded the meaning of “well known” not only as a close acquaintance but in her words “man friend” which to her meant a boy-friend/girl-friend relationship. That is quite different from an intention that two of them should get married some day. In her evidence, what was between them negatively in terms of a possible matrimony, was the respondent’s sperm count. I am therefore not wrong in describing the relationship as one of love and or romance from the point of view of the appellant. The relationship was however much more than the neutral expression of “well known” I now see the reason behind the denial in paragraph 3 of the statement of defence.
Let me briefly summarise appellant’s evidence in respect of the property. It is Plot 999 Cadastral Zone B6, Mabuchi District, Abuja. She applied for land in August 1992. File No. DT291 belongs to her. She completed the application form in her own handwriting and signed it. She paid an application fee of N300.00. That was in August, 1993. Her signature is not on the portion meant for signature of applicant. It is the respondent’s signature and his name, apparently signing for the appellant, An additional fee of N6,700.00 was introduced by the Federal Capital Territory. She paid the fee, vide Exhibits B and B1. Originals of Exhibits B and B1 were handed over to the respondent who was to follow up the application. Respondent sent to the appellant the Certificate of Occupancy for her signature
Respondent refused to give her the Certificate of Occupancy and started developing the land.
The respondent told quite a different story in his statement of defence. Since he did not give evidence in court, I should summarise the evidence of DW1, a builder. He told the court that the appellant told him that she was the proposed wife of the man he was working for. Appellant inspected the building. She returned to the site and effected some corrections to the building. Appellant condemned the cushion chairs made for the house. She brought a welder who did the iron work in the building. He told the court that he worked on the boys quarters and the fencing.
DW2 in his evidence concentrated on the purchase of the land in dispute. He said that as a protocol liaison officer of the First Bank the respondent became more intimate with him, and so he introduced the appellant to him as his fiancee. He ran errands on behalf of the respondent for the appellant. The errands included sending the appellant money to settle her bills and the processing of application for the purchase of land for the appellant. He told the court that the respondent introduced the appellant as fiancee in his house and that the respondent paid the sum of N33,458..75 as fee for the Certificate of Occupancy.
Under cross examination, witness admitted that he is from the same town with the respondent who is like an uncle to him. He said that he settled the telephone bills of the flat respondent hired for the appellant at Maitama. He said that the appellant signed the letter of acceptance of the allocation. He did not know the person who paid the sum of N6,700.00.’
DW3, who works at the Department of Administration at the FCDA ‘did not know the appellant but participated in the processing of application for allocation of land. He said that the respondent paid the balance of N6,700.00 as processing fee.
The appellant, as plaintiff, had filed an action seeking for the following reliefs:
“1. A Declaration that the Plaintiff is the bona fide owner of all that Plot No. 999 Cadastral Zone B6, Mabuchi District Abuja.
A mandatory order directing the Defendant to hand over the Federal Republic of Nigeria Certificate of Occupancy No. FCT/ABU/DT.291 covering the said plot to the plaintiff forthwith.
A perpetual injunction restraining the Defendant either by himself, his agents or privies howsoever called from further trespassing on the land.
Two million naira (N2,000,000.00) as general damages for trespass on the said plot.”
The respondent as defendant, did not accept liability. He rather counter-claimed, asking for the following reliefs:
A DECLARATION that the defendant is the owner of the property lying situate and being at plot 999 Cadastral Zone 6 Mabuchi District, Abuja notwithstanding the fact that the plaintiff’s name is on the certificate of occupancy.
A DECLARATION that the defendant is the owner of the property to the plaintiff having failed, the plaintiff has not legal or equitable right to the property”
I am in some difficulty understanding relief No.2 of the counter claim. The appellant filed a defence to the counter claim as well as a reply to the statement of defence.
The learned trial Judge, after the evidence and the submission of counsel, gave judgment in favour of the appellant in respect of claims 1, 2 and 3. He refused claim 4 on general damages for trespass. He ordered at page 49 of the Record:
“For the foregoing therefore, the Plaintiff’s 1st, 2nd and 3rd claims against the Defendant succeed while the 4th claim of paying to her two million Naira (N2,000,000.00) fails. As corollary to this, the Defendant’s counter claim fail. The plaintiff is ORDERED to take possession of both the plot of land at Mabuchi and Certificate of Occupancy.”
Dissatisfied, the respondent, as appellant, appealed to the Court of Appeal. The appellant as respondent, crossed appealed. The Court of Appeal overturned the decision of the High Court. Musdapher JCA (as he then was) delivered the leading judgment. He ordered as follows:
“In the end, I allow the appellant’s appeal and dismiss the cross-appeal. Accordingly, I grant the appellant the following prayers. It is hereby declared:
That the appellant is the owner of the property lying and situate and being at Plot 999 Cadastral Zone B6, Mabuchi District Abuja covered by the Certificate of Occupancy No. FCT/ABU/DT.291 notwithstanding the name of the respondent therein.
It is further declared that the conditions of the Gift of the said property to the plaintiff/ respondent having failed the plaintiff/respondent has no legal or Equitable right to the property.
The decision and order for costs contained in the judgment of Kusherki J on the 20/10/1999 are set aside and in its place I enter judgment for the defendant/appellant on his counter-claim and dismiss in its entirety the respondent/plaintiff’s claim.
The appellant is entitled to costs which I assess in the Court below and this Court at N1,500 and N5000 respectively.”
Dissatisfied, the appellant filed an appeal in this court. Briefs were duly filed and exchanged. The appellant formulated the following issues for determination:
“1. Was the Court of Appeal right to hold that the Appellant is the owner of the property lying and situated at Plot 999 Cadastral Zone B6 Mabuchi District covered by the Certificate of Occupancy No. FCT/ABU/DT 291 notwithstanding the name of the Respondent there.
Was the Court of Appeal right to hold that the land, Plot No. 999 Mabuchi District covered by Certificate of Occupancy No. FCT/ABU/DT 291 was allocated to the appellant by the Minister Federal Capital Territory (as a gift) pursuant to a promise of marriage to the Respondent.
Is the finding of the Court of Appeal that it was the Appellant in furtherance of the marriage agreement acquired the land…’ supported by evidence and the facts before the court.
Whether without a claim for breach of promise of marriage the holding of the Court of Appeal that the whole transaction was based on the marriage agreement between the Parties could stand.
Whether any case of resulting trust was made out by the Respondent.”
Respondent formulated the following issues for determination:
“1. Whether the learned Justices of the Court of Appeal were right in granting the Respondent’s reliefs on his counter-claim (GROUND 1)
Whether the learned Justices of the Court of Appeal were right in holding that the property in dispute was procured by the Respondent for the Appellant in furtherance of a marriage agreement. (GROUND 2, 3, & 4)
Whether the Respondent made out a case of Resulting trust against the Appellant. (GROUND 5).”
Dealing with issues Nos. 1, 2 and 3 together, learned counsel for the appellant Mrs. J.O. Adesina, submitted that to succeed in a claim of title to or ownership of land, the plaintiff must prove his title in one of the five ways as laid down in the case of Idundun V. Okumagba (1976) 8-10 SC 227. Enumerating the five ways in her brief, learned counsel further relied on Chukwu V. Diala (1999) 6 NWLR (Pt. 608) 674 at 681; Orubon V. Gbondu (1999) 11 NWLR (Pt. 628) 661 at 668 and Otukpo V. John (2000) 8 NWLR (Pt. 669) 507 at 525.
Relying on Exhibits C, D, and the evidence of DW4 learned counsel submitted that there was no basis for the learned trial Judge to have held as he did that “It follows that since the application for land cannot be submitted without the processing fee of N300.00 the defendant went through all the process by paying the fees and charges as they accrued till the certificate of occupancy was finally obtained”. Learned counsel further submitted that the Court of Appeal ought not to have held that “the finding of fact by the learned trial Judge that the appellant procured the land in the name of the respondent… cannot be faulted”.
Learned counsel conceded that the respondent assisted the appellant to facilitate the processing of the land just as he did for other persons including DW2 and the appellant’s sister. She called in aid the evidence of DW3.
On the procedure for acquiring land or allocation of land in the Federal Capital Territory, learned counsel pointed out that the application form could be signed by the applicant, his attorney or agent. She relied on the evidence of PW1 and Exhibit A. Relying on Latiko V. Kutigi (1999) 3 NWLR (Pt. 596) 509 at 510; Okeke V. State (1999) 2 NWLR (Pt. 590) 246 at 259; Tokimi V. Fagite (1999) 10 NWLR (Pt. 624) 588 at 581 and Olohunde V. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 597, learned counsel submitted that where the holding or finding of the trial Judge is not supported by the evidence, the Court of Appeal is obliged to set same aside.
Attacking the conclusion of the Court of Appeal that the mere fact that a certificate is issued by the Governor does not automatically vest the leasehold created in favour of the person, learned counsel submitted that the authorities cited in support of the above are inapplicable to the case on hand. To learned counsel, the authorities relate and are applicable only to cases where a party claims to have “ a better existing right to the use and occupation of the land” than the person who was granted the certificate of occupancy. The Minister of the Federal Capital Territory is the only authority in charge of allocation of land in Abuja and there is no iota of evidence that he made any allocation in favour of the respondent, learned counsel maintained.
Where it has been established as in this appeal that the allocation was made directly to the appellant by a competent Authority, the presumption raised therein is that the holder is the owner in exclusive possession of the land in respect thereof, counsel argued. She cited Osazuwa V. Ojo (1999) 13 NWLR (Pt. 634) 286 at 291 and 292; Haruna V. Ojukwu (1991) 7 NWLR (Pt. 202) 207 at 225.
It was the submission of learned counsel that the respondent did not prove that he had a customary or other right of occupancy over the plot which had not been extinguished by the appellant neither did he prove that he acquired same and transferred title in trust to the appellant. This being so, the holding by the Court of Appeal that the respondent is the bona fide owner of the plot and that the appellant only held the same in trust for him is erroneous, learned counsel contended. To counsel, by this holding, the Court of Appeal unwittingly shifted the burden of proof of ownership of the land on the appellant when the respondent could not adduce prima facie evidence in proof of his alleged ownership.
Calling in aid sections 1 and 49 (1) of the Land Use Act, 1978, learned counsel said that since all land comprised in the Federal Capital Territory is vested in the Minister and not on the respondent, he cannot grant same to another person. She relied on Olohunde V. Adeyoju (2000) 10 NWLR (Pt. 67) 562 at 597; Ona V. Atenda (2000) 5 NWLR (Pt. 656) at 244 and 275; Adisa V. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 164; Nkuma V. Registered Trustees of Aba (1998) 10 NWLR (Pt. 570) 514 at 524 and Sachia V. Kwande Local Government Council (1990) 5 NWLR (Pt.152) 548 at 524.
Counsel urged the court to hold that by the operation of law the learned trial Judge was right when he held that the land belonged to the appellant and that the respondent should hand over to the appellant the Certificate of Occupancy No, FCT/ABU/DT.291 covering Plot No. 999 Cadastral Zone B6 Mabuchi District Abuja.
Taking Issues Nos. 4 and 5 together, learned counsel cited the definition of resulting trust in Shephard V. Cartwright (1955) AC 431 at 445 and Blacks Law Dictionary, 6th edition at page 1315. Learned counsel submitted that there are no hard and fast rules about resulting trust especially as it relates to land.
The claimant must prove by hard and concrete evidence that he actually owned and/or was entitled to the land but voluntarily and deliberately opted that the Title Deed or Deed of Assignment be made in favour of another in anticipation of a marriage or whatever as the case may be, counsel submitted.
It was the submission of learned counsel that since the respondent failed to properly plead the issue of resulting trust (or any other trust) he cannot raise the issue at the address stage or on appeal, as the evidence or arguments or submissions on facts not pleaded go to no issue. He called in aid Edun V. Provost Lacoed (1998) 13 NWLR (Pt. 580) 52 Audu V. Okeke (1998) 3 NWLR (Pt. 542) 373 at 382; Rean Ltd V. Sangoyele (2000) 4 NWLR (Pt. 653) 452 at 458; Attorney-General Kwara State V. Alao (2000) 9 NWLR (Pt. 671) 84 at 100; Re Vandervell’s Trusts (No. 2) (1974 1 CH. D. 269 and Order 25 Rule 5(1) of the Federal Capital Territory High Court (Civil Procedure) Rules 1987.
Dealing with the law of resulting trust (I suppose in the alternative) learned counsel argued that a resulting trust can only arise where the legal interest in a property is “conveyed or transferred” and it is to be inferred from the accompanying circumstances. It was not the evidence before the court in respect of Exhibit A that the legal interest given to the appellant by the Minister for FCT was or could have been at the instance of the respondent and or additional on appellant’s marriage to the respondent. Accordingly, there is no basis for the holding by the Court of Appeal that the allocation of the plot covered by the certificate of occupancy was allocated to the appellant in trust for the respondent, learned counsel contended.
Relying on sections 5(1) and 49 of the Land Use Act, counsel contended that having made an application in her name to the appropriate authority, the appellant was entitled to be allocated any parcel of land. She enumerated the procedure for the issuance of certificate of occupancy in paragraph 6.8 of the appellant’s brief. She cited once again Olohunde V. Adeyolu (supra).
It was the submission of learned counsel that since the issue is breach of promise of marriage, the failure on the part of the respondent to claim the relief in the High Court and prove same is fatal to the respondent’s case. She vehemently attacked some specific findings of the Court of Appeal at pages 13 and 14 of the brief and cited the cases of Ogolo V. Ogolo (1997) 7 NWLR (Pt. 512) 320 and Olabanji V. Ajiboye (1992) 1 NWLR (Pt. 218) 473. She submitted that failure of the respondent to testify before the court is fatal to his counter-claim. She urged the court to allow the appeal.
Learned counsel for the respondent Mr. O.A.R. Ogunde said on Issue No. 1 that the appellant has argued her case as if the Supreme Court was a trial court. He submitted -that the appellant has not shown any special circumstances why the concurrent findings of the two courts should be set aside by this court. Since the findings of the two courts are not based on interpretation of documents or facts, this court cannot fault them, he contended. He cited Ezeonwu V. Onyechi (1996 3 NWLR (Pt. 438) 499; Lawal V. Dawodu (1972) 8-9 SC. 83; Oladele V. Anibi (1998) 9 NWLR (Pt. 578) 320; Odeniji V. Akinpelu (1998) 7 NWLR (Pt. 557) 174 and Order 2 Rule 32 of the Supreme Court Rules.
The basis of the grant of the respondents’ counter-claim is the finding that the respondent paid all the fees for the allocation of the plot and signed the application form and that he did this in furtherance of a marriage agreement between the appellant and the respondent, learned counsel claimed. He contended that the respondent’s claim is that the appellant was a resulting trustee and not an absolute owner. A resulting trustee is a latent arrangement which becomes patent, once the object of the trust fails. Therefore the cases of Osazuwa V. Ojo (supra); Haruna V. Ojukwu (supra) and Olohunde V. Adeyoju (supra) are totally irrelevant to this appeal and the issues raised therein, learned counsel argued.
Taking Issue No. 2, learned counsel pointed out that the respondent’s action is not for breach of promise of marriage but for the recovery of land. The respondent according to counsel, was not seeking to recover damages for breach of marriage promise and so there was no need for him to testify. He cited Adebayo V. Ighodalo (1997) 11 NWLR (Pt. 530) 694.
On Issue No. 3, learned counsel cited what Lord Denining said in the case of Re Vandervells Trusts (No.2) (1974) 1 Ch. D. 209 and submitted that a resulting trust is not a material fact but a legal result, an inference to be deduced from facts pleaded. If on the facts, the respondent abandoned resulting trust and raises, for example implied or charitable trust, it is quite open to him provided this did not entail any difference in facts but only a difference in stating the legal consequences, learned counsel argued. Citing Slaw V. Slaw (1954) 2 QB 429 at 441, learned counsel submitted that as the respondent pleaded all the facts, which a resulting trust may be inferred, this court can deal with the issue.
Arguing that the doctrine of resulting trust was properly applied in the case by the lower court, counsel cited In Re: Howes Vol. 21 Times Law Reports 501; Standing V. Dowring (1885) 31 Ch.D. 282; Vandervall V. I.R.C (1976) AC 291 and Muniru Shekete V. Fitz-James without the citation. He urged the court to dismiss the appeal.
Mrs. Adesina, in her reply brief, submitted on Issue No. 1 of the respondent’s brief that since the appellant obtained leave of the Court of Appeal to appeal to this court on grounds of fact and mixed law and facts, the legal effect is that all the facts on record are completely under the appellate juridical authority of this court to rehear the case under Order 8 Rule 13 (1) of the Supreme Court Rules 1990. She cited Kala V. Potiskum (1998) 3 NWLR (Pt. 540) 1 at 11.
It was the submission of counsel that concurrent findings of the trial court and the Court of Appeal may be set aside by the Supreme Court where they are shown to be erroneous, unfounded, or unsupportable. She cited Searby Jernstoberi M.R. A/S V. Olaogun Enterprises Ltd. (1999) 14 NWLR (Pt. 637) 128 at 143. Showing special or exceptional circumstance to enable the Supreme Court set aside concurrent findings of the High Court and the Court of Appeal does not mean much more than showing that the conclusion of the two lower courts on an issue of fact was wrong in view of the facts on record, counsel contended. She cited Akpan V. Umoh (1999) NWLR (Pt. 627) 349 at 365-366. She enumerated in paragraph 1.8 pages 3 and 4 of the reply brief what she regarded as findings which are not supported by evidence.
Let me first take the issue on the failure of the respondent to give evidence in court. For counsel for the appellant submitted that the failure on the part of the respondent to testify before the High Court in respect of his counter-claim is fatal to his case. With respect, I do not agree with her. I know of no procedural law in our justice system which provides that a party must give evidence at the trial. The burden of proof merely requires the party alleging or asserting a fact to prove the fact. And such a party can do so by calling witness or witnesses to prove his allegation or assertion.
Accordingly, our adjectival law and the rules of court do not foist on a party the duty to give evidence. While it is desirable that he gives evidence, there are situations where, from the facts of the case, some other person is in a better position to give evidence because that person participated in the particular matter and did it and saw it all. There could also be a situation where some other person though did not participate in the matter, is in a better position to give evidence because he knows the matter much more than the party.
However, where the only competent witness is the party in the case in the sense that he was directly involved in the transaction, and no other person, he then stands the risk of exposing the evidence of his witness or witnesses as a bundle of hearsay.
In the instant appeal, the respondent like the appellant, was the centre or midst of the whole affair. He saw it all and he did it all too. But he asked three other witnesses to give evidence on his behalf. One is DW1, the second is DW2, the third is DW3. The respondent will stand or fall by the evidence of his three witnesses. This is merely saying the obvious. I shall take the evidence at the appropriate place. Let me not prejudge their evidence.
Learned counsel for the appellant attacked the judgment of the trial Judge given in favour of her client. She did so freely at pages 7 and 8 of the brief and also in the reply brief. Let me read paragraph 4.5 of the appellant’s brief to substantiate the point I am making:
“It is therefore respectfully submitted that, there was no basis for the learned trial Judge to have held as he did that it follows that since the application for land cannot be submitted without the processing fee of N300.00 the defendant went through all the process by paying the fees and charges as they accrued till the Certificate of Occupancy was finally obtained.”
I do not think the above submission is available to counsel. A party who has judgment in his favour and who has not cross-appealed or who has not taken out a respondent’s notice is not entitled to raise any adverse issue arising from the judgment. The only way to show grievance of a judgment is by way of appeal and in certain cases by way of a respondent’s notice. In view of the fact that the appellant had judgment in the High Court, all that she should have done, if not satisfied with the statement of the trial Judge on the issue of payment of the processing fee of N300.00 by the respondent was to commence a cross-appeal. In the absence of that, the appellant has to accept the decision of the High Court with all its sweetness and bitterness cum onere. And what, is more, the judgment before this court on appeal is the judgment of the Court of Appeal and not the judgment of the High Court.
In the circumstances, I shall discountenance all the negative issues raised against the judgment of the learned trial Judge by counsel for the appellant.
The fulcrum of this appeal is the contention of the respondent that he did all he did for the appellant because there was an agreement between the appellant and himself to marry. Let me go a bit into the law of contract or agreement of parties to marry and see whether it applies to the appeal in favour of the respondent, who has the burden to prove the existence of the agreement to marry.
In view of the fact that the case of the respondent is breach of agreement on the part of the appellant to marry him, I will take here what constitutes breach of agreement to marry. Two elements are necessary to constitute a breach of agreement or promise of marriage. First, the party jilted must prove to the satisfaction of the court that there was in fact a promise of marriage under the Matrimonial Causes Act, 1990, or under Islamic Law or under Customary Law, on the part of the other sex. Second, the party reneging has really, and as a matter of fact, failed or refused to keep to the agreement of marriage.
Marriage is regarded as a very sacred institution both in our jurisprudence and in our sociology. Accordingly an agreement to enter into a marriage should leave nobody in doubt as to the real intention of the parties to enter into a marriage. A mere convivial or romantic relationship without more is not enough for a court to found an agreement to marry.
While the law may at times require that an agreement to marry should be in writing, the law will be prepared to hold, in appropriate cases, that the parties intended to marry in the absence of any written agreement. In this respect, the court will take into consideration the institution of marriage as a trade in the relevant society and how persons generally engage themselves in agreement of marriage. In this regard, the law will be more stringent in agreement to enter into marriage under the Matrimonial Causes Act and to some extent under Islamic Law than agreement to enter into marriage under customary law.
I say this because while the first two types of marriages have settled principles and formalities of marriage, the third one is essentially transient, depending upon the custom, cultures and ethos of a given society.
In the light of the above, there is need for me to find out, from the Record the nature or type of marriage the appellant and the respondent agreed to undertake, if there was an agreement at all. DW1, a builder, who at the material time was handling three buildings for the respondent, said in his evidence in-chief at page 29 of the Record:
“The first day I met the plaintiff she came to my site at Minister Hill (sic). I asked her who she is because I was thinking that she is an architect. She told me that she is the proposed wife of the man I was working for at Minister Hill. I received her and took her round the building. She inspected everything. I went to him and told him one fine lady came to my site and told me that he is her proposed husband. He asked me how I liked the girl. I told him that she is fine and charming. He told me that he will build the house he is planning for her. The house is at Mabuchi which I am now constructing. The lady use (sic) to come to the site at Mabuchi to effect some corrections. She come (sic) there more than 7 or 8 times.”
DW2, who called himself a banker because he works at the First Bank of Nigeria PLC. said at page 30 of the Record:
“I know the plaintiff and I know the defendant. The defendant was the Chairman of our Bank… I know the relationship between the plaintiff and the defendant as far back as 1993 when I was transferred from Kano to Abuja. I was the Protocol and Liaison officer of the Bank…Around June 1993 or July 1993 he introduced the plaintiff to me as his fiancee. As from that time the defendant developed trust in me. He was sending me to her with money to give her or to settle her bills.”
DW3, an employee of the FCDA in his evidence said he did not know the appellant. And so, I am left with the evidence of DW1 and DW2. None of the witnesses gave evidence as to the nature or type of marriage the appellant and the respondent agreed to enter into. And this is material for the purposes of determining the issue of breach. All that DW1 said is that the appellant told him that the respondent is her proposed husband. DW2 said that the respondent introduced the appellant as his fiancee.
And that takes me to the bigger issue and it is an agreement for marriage between the appellant and the respondent, an agreement which the respondent said made him procure the landed property under dispute. Did any of the witnesses give such evidence? I must fall back once again on the evidence of DWI and DW2. DWI said in his evidence in-chief that. the appellant told him that she “is the proposed wife of the man I was working for in Minister Hill” and that the respondent told him that he “will build the house he is planning for her.” Of course, he was specific and it is the house at Mabuchi.
SC. 226/2000
