OKO-OBOH V. GUOBADIA & ANOR
In The Court of Appeal of Nigeria
On Friday, the 22nd day of June, 2018
Before Their Lordships
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of NigeriaBetween
MRS. NOSA OKO-OBOH – Appellant
1. MR. OSASERE OSAZE GUOBADIA
2. MR. ISAAC OJEYOKAN – Respondents
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): In the High Court of Edo State, holden at Benin City, the appellant as plaintiff instituted Suit No. B/406/2002 in which she sought against the respondents, who were the defendants in the said Court, the following reliefs:
a) A declaration that the transfer made by the 2nd defendant on 11/2/02 between the plaintiff and 1st defendant purportedly transferring plaintiff’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City to the defendant is null, void and of no legal effect whatsoever.
b) A declaration that the purported transfer/receipt made by the 2nd defendant on 11/2/02 between the plaintiff and the 1st defendant does not meet the legal requirements of a deed of transfer and/or document relating to transfer of title to a real property the said document having not stated the total cost of the house.
c) A declaration that the purported transfer/receipt made by the 2nd defendant on 11/2/02 between the plaintiff and 1st defendant is not capable of transferring the title of the plaintiff to that property lying, situate and known as No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, to the 1st defendant in that it was neither executed by both parties nor was any witness present.
d) An order of Court directing the 2nd defendant to return all the title deeds and document relating to that plaintiff’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, which he took from plaintiff in course of this transaction.
An order of Court on the 1st defendant to pay the plaintiff the agreed sum of N5,000,000.00 (Five Million Naira) for the said house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, if he insists on buying same.
The respondents filed two separate statements of defence in which they respectively, denied the appellant’s claims. The 1st respondent even counterclaimed against the appellant as follows:
a. An order of Court directing the plaintiff to receive the sum of N200,000 (Two Hundred Thousand Naira) from the 1st defendant being balance of the agreed price of N1.2m for no 1, Iyen Lane, Benin City as per part-payment receipt dated 11th February, 2002.
An order of Court directing the plaintiff to return the sum of N1m (One Million Naira) with interest at 21% yearly being money received from the 1st defendant as part-payment for plaintiffs house at no. 1, Iyen Lane, Benin City.
b. The sum of N4m as general damages for breach of contract.
At the conclusion of hearing, the trial Court delivered a reserved judgment on 15/09/2009 in which it concluded as follows:
In the circumstances all the claims of the plaintiff as well as the alternative claim fail and they are hereby dismissed. The counter claim of the 1st defendant succeeds. Accordingly, it is ordered that the plaintiff do receive the sum of Two Hundred Thousand Naira (200,000.00) from the 1st defendant being the balance of the agreed purchase price for the plaintiff’s house situate No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City.
The 1st defendants claim to Four Million Naira General Damages for breach of contract is dismissed. No order as to costs.
This appeal is against the decision of the trial Court dismissing the appellant’s claim and granting the 1st respondent’s counterclaim. The appeal was heard based on:
(i) the further amended notice of appeal filed on 12/04/2017 and deemed as properly filed on that day;
(ii) the second further amended appellant’s brief filed on 23/11/2017 but deemed as filed on 05/12/2017; and
(iii) the further amended respondents brief filed on 05/01/2018.
The respondents filed a notice of preliminary objection on 02/12/2016 but no arguments were proffered thereon. The said preliminary objection was, therefore, abandoned by the respondents and it is hereby struck out.
Learned counsel for the appellant formulated three issues for determination as follows:
(1) Whether the learned trial judge was right to order specific performance of a contract tainted with fraud.
(2) Whether the learned trial judge erred in law when he relied on the evidence obtained from the plaintiff under cross-examination on un-pleaded facts to uphold the 1st respondent claim.
(3) Whether or not the judgment was not against the weight of evidence adduced.
On behalf of the respondents, learned counsel distilled the following three issues for determination:
1. Whether the learned trial judge was justified in ordering specific performance in favour of the respondents (Distilled from Ground one of the Notice of Appeal).
2. Whether the learned trial judge was right to rely on evidence obtained from the plaintiff/appellant during cross-examination in entering judgment for the respondents (distilled from ground two).
3. Whether from the totality of the evidence and pleadings, the learned trial judge was not right to have dismissed the plaintiff/appellant’s claim and sustained the 1st defendant/respondent’s counter-claim. (Distilled from Ground three).
I adopt the issues as framed by the respondents, for the main reason that they are properly tied to the appellant’s grounds of appeal. All the three issues will be taken and treated together.
The learned counsel for the appellant relied on the case of Stickney v. Keeble (1915) A.C. 386 at 419 and argued that a party who has committed fraud is not entitled to the equitable remedy of specific performance.
Learned counsel also relied on the case of Western Bank of Scotland v. Addie (1863) L.R. lHL SC 145 and submitted that:
Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even judgments and orders of Court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the detection of defraud.
Learned counsel contended that until a transaction tainted with fraud is voided, it is valid so that third parties, without notice of the fraud, may acquire interest and right which they may enforce against the party defrauded. In support of this contention learned counsel cited the case of Oakes v. Turquarnd (1867) L.R.2. Relying on the case of Ugo v. Obiekwe (1989) 2 SC (Pt. 2) 41 at 67 per Agbaje, JSC, learned counsel submitted that the implication of this is that there must be an action to set aside the transaction induced or tainted with fraud and one for a declaration that the whole transaction is null and void ab initio.
It was contended that before specific performance can be decreed, the plaintiff must prove that there is a concluded contract which is precise and certain and it is not bedevilled by vagueness or lack any essential element. In support of this contention, counsel relied on the cases of Balogun v. Alli-Owe (2000) 3 NWLR (Pt. 649) at 482. Relying also on the cases of Neka Ltd. v. ACB Ltd. (2004) 115 LRCN 2949; Tsokwa Motors Nig. Ltd. v. UBN Ltd. (1996) 9 NWLR (Pt. 471) 129 and Alfotrin v. A.G; Federation (1996) 9 NWLR (Pt. 475) 634 and argued as follows:
On conditions for the existence of a valid contract it is trite law that for a contract to exist there must be an offer, and unqualified acceptance of that offer and a legal consideration. Indeed, there must be a mutuality of purpose and intention the two contracting parties must agree. In other words, there must be offer and acceptance.
He submitted that there was no valid contract because:
(i) there is discrepancy as to the issue of consideration, as the purported agreement did not state the purchase price of the house;
(ii) the receipt issued to the appellant only stated part-payment of N1,000,000.00 without stating the balance and this means that the contract has not been concluded by the parties”;
(iii) the appellant never parted with the house in issue for any moment and is still in possession of the house in dispute; and
(iv) the respondents, conscious of the weakness of their claim even claimed in the alternative in their counter claim the return of the N1,000,000.00 they purportedly paid as deposit for the said house.”
Learned counsel relied on the case of Fakorede v. A.G of Western State (1972) 1 All NLR (Pt. 1) 178 at 189 and submitted that it is not the duty of the Court to make contracts for the parties by supplying essential details, terms or conditions thereof.
A. O. Edeki, Esq., learned counsel who settled the appellant’s brief argued that it was wrong for the trial Court to have relied on evidence obtained from the appellant during cross-examination to uphold the respondents claim on facts not pleaded. After referring to the cases of Iwunwah v. Iwunwah (1999) 13 NWLR (Pt. 635) 425 at 435 and Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) 310 at 326 and submitted that parties are bound by their pleadings.
Learned counsel for the appellant opined that the trial Court failed to properly evaluate the evidence before it and arrived at a judgment which is against the weight of evidence. He argued that since the credibility of the witnesses who testified in the trial Court is not in issue, the Court of Appeal can re-evaluate the evidence before it. He relied on the cases of Ebba v. Ogodo (1984) 1 SCNLR 372 and Agbonifo v. Aiwereoba (1998) 1 NWLR (Pt. 70) 325 to buttress his argument on this issue.
I. I. Ojeyokan, Esq., who settled the respondents brief, argued that the appellant did not plead fraud in her statement of claim and neither was fraud canvassed as an issue during trial. He stated that the appellant raised the issue of fraud for the first time in her defence to the 1st respondent’s counterclaim and in her counsel’s written address and that by Section 138(1) of the Evidence Act, 2004 (now Section 135 of the Evidence Act, 2011), the facts of fraud must not only be pleaded with particulars but the allegation must be proved beyond reasonable doubt. To justify this argument, learned counsel referred the Court to the cases of Babatunde v. BON (2002) All FWLR (Pt. 608) 806; Anyanwu v. Uzowuaka (2009) 10 SC 1; W.A. Breweries Ltd. v. Savanna Ventures Ltd. (2003) FWLR (Pt. 112) 53; Garba v. Zaria (2005) All FWLR (Pt.283) 25 and High Grade Maritime Services Limited v. First Bank PLC (1991) 2 LRCN 304.
Learned counsel for the respondents contended that the ingredients necessary for the formation of a valid contract were present in the transaction between the parties: to wit; a. Offer; b. Acceptance; c. Consideration; d. Intention to create a legal relationship; e. Capacity to contract; besides, the parties were consensus-ad-idem as garnered from their conduct, oral evidence and exhibit before the trial Court.
Counsel contended that the appellant’s arguments, especially on page 6 of the appellant’s brief, implied that save for the discrepancy regard the purchase price on which the parties joined issues, all other ingredients required in a valid contract for sale were embedded in the transaction. He stated further that:
The respondent’s submit that in appellant’s Statement of claim: page 5 paragraphs 7-8: appellant’s defence of 1st respondent’s counter claim.
Page 31, paragraph 15: appellant’s viva voce evidence, page 36, lines 32-34. Appellant emphatically stated that there was consideration which appellant put as N5,000,000.00 (Five Million Naira): That she signed Exhibit A in pursuance of that agreement with the 2nd respondent: page 37, lines 5-6 of the record of appeal.
By the above facts, if the story of the appellant were to be believed without any contradiction, it meant that all the ingredient of a valid contract were present between the parties including the consideration which she alleged to be N5,000,000.00 (Five Million Naira) see page 31 paragraph 15 of the record of appeal.
The appellant herself when she purportedly signed Exhibit A which she tendered in Court, the purchase price she alleged to be N5,000,000.00 (Five Million Naira) was missing in the document. Her initial complaint was frustration of the contract because she did not see the N1,000,000.00 (One Million Naira) paid by the 2nd respondent after she signed Exhibit A; not because the balance was missing in the document.
It was submitted that the consequence of the discrepancies in the appellant’s story regarding the price of N5,000,000.00 (Five Million Naira) was not proved and the trial Court rightly held that the agreed price for the house was N1,200,000.00 (One Million, Two Hundred Thousand Naira).
Learned counsel for the respondents argued that by section 232 of the Evidence Act, 2011 a previous statement of a witness is allowed by law to discredit that witness. In further support of this argument, he relied on the cases of Salami v. Ajayi (2012) All FWLR (Pt. 615) 242; Madumere v. Okafor (1996) 3 LRCN 652; Onubogu v. State (1974) 9 SC 1; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393 and Ayanwale v. Atanda (1988) 1 NWLR (Pt. 68) 22.
The respondents counsel argued that it is only when the terms of a contract are vague or uncertain that such a contract becomes unenforceable. In this case, he contended the missing term, consideration, was easily ascertained by the surrounding facts as proved by the respondents before the Court. Referring to the case of Attorney General, Oyo State v. Fairlakes Hotels Ltd. & Anor. (1989) 5 NWLR (Pt. 121) 255 he stated that oral evidence is admissible where it will throw light on or assist the Court to determine the probative value to a document.
Counsel for the respondents submitted that the trial Court rightly relied on Exhibit A tendered by the appellant and from which she took benefit and that the appellant cannot approbate and reprobate.
The learned counsel for the respondents contended that evidence elicited under cross-examination is on the same footing as evidence led by the party cross-examining to support his claim. In support of this argument, learned counsel referred the Court to the cases of Okoroji v. Onwenu (2017) All FWLR (Pt. 871) 1369; Ibrahim v. Shagari (1983) 2 SCNLR 176; INEC v. Ifeanyi (2010) 1 NWLR (Pt. 1174) 98 and Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583. He argued that the trial Court was right in considering Exhibit B pleaded in paragraphs 23, 24 and 25 of the 1st respondent’s statement of claim and counterclaim.
In urging the Court to dismiss the appeal, learned counsel submitted that the trial Court adequately evaluated the evidence before it and the judgment was not against the weight of evidence.
The appellants case, as set out in her statement of claim, covering pages 4 to 7 the record of appeal, can be summarized as follows:
(i) Sometime in February, 2002 she boarded a taxi, in which there were some passengers, from Ikpoba Hill towards Ring-road, at the centre of Benin City.
(ii) Along Akpakpava Street, the taxi driver stopped to drop one of the passengers and he went to the boot of the taxi purportedly to give the luggage of the alighting passenger to him and the following events took place:-
(a) When the driver opened the booth of the car he exclaimed where did you get this amount of dollars.
(b) The plaintiff avers that the driver said he was going to take that passenger to the police so that he will explain to them where he got that huge sum of dollars from.
(c) The plaintiff avers that she begged the driver to take her to her destination before going to the police station but instead of taking her to her destination the driver drove straight to a house along Sapele Road, Benin City.
(d) The plaintiff avers that at the said house one of the said men by name David turned a spiritualist immediately and started telling her her life history such as: the number of children she has (5 in number). That she has a building in Benin City.
(e) The plaintiff avers that at the said house in Sapele Road, Benin City they talked her into going to borrow money to use in buying chemicals to wash the dollars.
(f) The plaintiff avers that when she said she had no one to borrow from, they took her to one John Ehisiemen whom they introduced as a moneylender.
(g) The plaintiff avers that when she said she had no one to borrow from they took her to one John Ehisiemen whom they introduced as a moneylender.
(h) The plaintiff avers that John Ehisiemen told her that the interest on borrowed money is always too high and that it will be better for her to sell her house which John’s friend Mr. Oni has by divination forecast she had.
(i) The plaintiff avers that when she said she had no buyer, John offered to sell it and get her the money but that they had a lawyer working with them to whom he must carry her.
(j) That when they got to the lawyer one Mr. Isaac Ojeyokan who is the 2nd Defendant, he said he would see his client who wanted to buy a house.
See paragraphs 3, 4 and 5 of the statement of claim.
For the sake of a proper understanding of the appellant’s case, paragraphs 7 to 15 of her statement of claim are also hereby reproduced:
7. The plaintiff avers that the 2nd Defendant who represented 1st Defendant said that he had the authority of the 1st Defendant to settle price with plaintiff and they agreed for the sum of N5,000,000.00 (Five Million Naira) as the price of her house lying and situate at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City.
8. The plaintiff avers that the 2nd Defendant arranged with her that she will give him N500,000.00 (Five Hundred Thousand Naira) out of the N5,000,000.00 (Five Million Naira) when she is paid the balance. He said he will ensure that one million naira was advanced her soon after signing the paper he brought out.
9. The Plaintiff avers that the 2nd Defendant prepared a transfer document which he termed to be the transfer deed and make the Plaintiff to sign all alone without any other person being present apart from the two of them.
The plaintiff shall rely on a photocopy of the said document which she later got as the said I.O. Ojeyokan refused to give her a copy. The plaintiff shall rely on the said photocopy.
10. The Plaintiff further avers that she gave her title deeds to her said house to Mr. Ojeyokan on the promise that he will make sure she is paid the first instalment of the sum of N1,000,000.00 (One Million Naira) by cheque when his client, the 1st Defendant was ready and that he will not hand over the said title deeds to the 1st Defendant until he completes payment in June, 2002.
11. The Plaintiff avers that the 1st Defendant and one John Ehisiemen chattered a taxi with which they took her to bank where they allegedly withdraw the sum of N1,000,000.00 (One Million Naira) which was to be the first instalment to her but which sum was never given to her.
12. The Plaintiff avers that when they left the bank, they were all heading to Ojeyokan’s chambers but they later forced her out of the taxi on the way.
13. The Plaintiff avers that since she was not given the N1,000,000.00 (One Million Naira) she decided to discontinue the transaction and requested that Mr. Isaac Ojeyokan should return her title deeds to her house to her.
14. That when Isaac Ojeyokan refused she reported the matter to the police and Ojeyokan, John Ehisiemen, David and the others were all arrested; the case is under investigation by the police.
15. That John Ehisiemen alleged that it was because Alhaji 1, 2, 3, did not get his own share of the N1,000,000.00 (One Million Naira) which the taxi driver ran away with that the taxi cab was impounded by him.
The 1st respondent denied the appellant’s claim in his statement of defence of 26 paragraphs and he also filed a counter-claim of 13 paragraphs. See pages 22 to 26 of the record of appeal. The 2nd respondent filed a separate statement of defence containing 52 paragraphs and which covers pages 10 to 16 of the record.
The 1st respondent stated that:
(i) Sometime in January, 2002 he with the assistance of one Mrs. Bola Masajuwa approached the 2nd defendant to look for a tenement bungalow for him.
(ii) The 2nd respondent showed him No. 1, Iyen Lane, Off Owina, Benin City which he appreciated and directed the 2nd respondent to arrange for the first instalmental payment of N1.2m.
(iii) The 2nd respondent took him to inspect the said house on the 8th day of February, 2002 and he agreed to pay N1.2m…. for the house, but on condition of paying instalmentally as agreed by the parties, and he agreed to pay the first instalment of N1.m on 11th February, 2002 and did so at First Bank, Ring road.
(iv) The 2nd respondent prepared a PART-PAYMENT RECEIPT on his behalf which the appellant signed.
(v) He was given the original copies of the documents relating to No. 2, Iyen Lane, Benin City i.e. certified true copy of the Will with which the plaintiff inherited the said house: Deed of Transfer and Oba’s Approval.
(vi) The appellant promised to have (sic) over the said house on 30th June, 2002 after he would have paid the balance sum of N200,000.00.”
The 1st respondent also stated how the 2nd respondent was arrested on 13/03/2002 by the police after he was identified by the appellant and the events which took place thereafter.
On his part, the 2nd respondent stated in his statement of defence that:
(a) Upon being requested to look for a tenement bungalow for the 2nd defendant sometime in January, 2002 he engaged the services of housing agents and canversers (sic) to scout for the said building; and in particular, he contracted one Mr. Solomon Oni.
(b) In February, 2002, Mr. Solomon Oni visited his office and invited him to inspect a bungalow of about 11 rooms at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City and they carried out the inspection on the 6th day of February, 2002.
(c) Mr. Solomon Oni informed him that the principal agent or representative of the owner of the house was one Mr. John Ehisiemen and he and Mr. Oni thereafter visited the office of Mr. Ehisiemen who confirmed that he was one of the principal representatives of the owner the appellant who was not in town.
(d) The appellant, Mr. Solomon Oni, Mr. John Ehisiemen and one David Ogbeide an uncle of the appellant visited him in his office on the 7th day of February, 2002 and photocopies of a certified true copy of a Will, Oba’s Approval and Deed of Transfer, etc; were given to him by the said John Ehisiemen.
(e) The appellant agreed to sell her house for the sum of N1.2m (One million Two Hundred Thousand Naira) only.
(f) He took the 1st respondent to inspect the house on the 8th day of February, 2002 and he agreed to pay the first instalment of N1.2m on 11th February, 2002 which was indeed paid on that date at First Bank, Ring Road.
(g) The 2nd Defendants (sic) were given the original copies of the documents relating to No. 2, Iyen Lane, Benin City i.e. certified true copy of the Will with which the appellant inherited the said house: Deed of Transfer and Oba’s Approval.”
See paragraphs 6 to 29 of the 2nd respondent statement of defence.
At the hearing, the appellant testified for herself and called her husband Solomon Oko-Oboh and one Gregory Okwari; an inspector of police, as witnesses. Both the 1st respondent and the 2nd respondent testified for themselves but called no witnesses.
In its judgment, the trial Court held that the appellants evidence is at variance with her pleadings because:
(i) On the state of the pleadings the appellant denied receiving the sum of one million naira and signing any receipt in acknowledgment of same.
(ii) She tendered Exhibits A and H which show that she not only acknowledged receipt of the sum of one million naira but also show that she signed the said receipt.
(iii) In her oral evidence in Court, she admitted signing a document but that it was in the chambers of the 2nd defendant.”
The trial Court therefore disregarded the evidence of the appellant on the authorities of Emegokwue v. Okadigbo (1973) 4 SC 113 at 117; (1973) 1 All NLR 379 and Barclays Bank v. Abubakar (1977) 10 SC 13 at 20. See pages 115 to 116 of the record of appeal.
It is also on record that the trial Court disregarded the evidence of the appellant’s husband PW1, because it was as a result of what the plaintiff told him.
Based on the documentary evidence before the Court and the testimonies of the respondents the trial Court dismissed the appellant’s claim and granted the 1st respondent’s counterclaim.
The law is settled by a plethora of authorities, that the primary duty of evaluating and ascribing probative value to the evidence of witnesses is that of the trial Court, which had the rare advantage to hear and watch the witnesses testify. Appellate Courts do not have such an advantage. See Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527; Hon. Eseme Eyiboh v. Mr. Dan Abia & 2 Ors. (2012) 16 NWLR (Pt. 1325) 51; Mrs. Lois Chituru Ukeje & Anor. v. Miss Gladys Ada Ukeje (2014) 11 NWLR (Pt.1418) 384 and Corporal Nicholas Okoh v. Nigerian Army(2018) 6 NWLR (Pt. 1614) 176 at 192 193 per Musa Dattijo Muhammad, JSC.
Where however, a trial Court failed to take advantage of its peculiar and unique position of hearing and watching the witnesses testify; and where the evaluation does not relate to or involve the credibility of the witnesses who testified; an appellate Court, in appropriate cases, can assume the responsibility of evaluating the evidence as borne out by the record of appeal. See Attorney-General of Oyo State v. Fairlakes Hotels Limited (1989) 5 NWLR (Pt. 121) 255 at 283 per Agbaje, JSC and Oyebode Alade Atoyebi v. Federal Republic of Nigeria (2018) 5 NWLR (Pt. 1612) 350 at 367 per Peter-Odili, JSC.
The law is settled that in a sale of land transaction, transfer on sale of an estate in land is divisible into two distinct stages:-
(i) The contract stage, which ends with the formation of a binding contract of sale; and
(ii) The conveyance stage, culminating in vesting the legal title in the purchaser by means of an appropriate legal instrument under seal.
See International Textiles Industries (Nig.) Ltd. v. Dr. Ademola Oyekanmi Aderemi & 4 Ors. (1999) 8 NWLR (Pt. 614) 268 at 294 per Uwaifo, JSC and Mrs. Elizabeth Irabor Zaccala v. Mr. Kingsley Edosa & Anor. (2018) 6 NWLR (Pt. 1616) 528 at 549 per Ogunbiyi, JSC.
Generally, for there to be an enforceable or a valid contract, the following elements or ingredients must be present:-
(b) Unqualified acceptance;
(d) Intention to create legal relations; and
(e) Capacity to contract.
See Tsokwa Motors Nigeria Ltd. & Anor. v. Union Bank of Nigeria Ltd. (1996) 9 NWLR (Pt. 471) 129; Orient Bank of Nigeria PLC v. Bilante International Limited (1997) 8 NWLR (Pt. 515) 37 and Omega Bank (Nig.) PLC v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547.
In this case, there is no conclusive evidence of offer, unqualified acceptance, consideration and clear intention to create legal relations between the appellant and the 1st respondent in respect of the appellant’s house lying, situate and being at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City or at all. For the sake of brevity, I will fully consider only the issue of consideration.
It is trite law that a Court should confine itself to evidence on only the matters which have been included in the pleadings. See National Investment Co. Ltd v. Thompson Organisation Ltd. (1969) 1 NMLR 99; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235 and Prince Adebajo Sosanya v. Engineer Adebayo Idowu Onadeko & 5 Ors. (2005) 8 NWLR (Pt. 926) 185.
I wish to add that parties are bound by their pleadings. See Incar (Nig.) Ltd. v. Benson Transport Ltd. (1975) 3 SC 117; Gbaniyi Osafile & Anor. v. Paul Odi & Anor. (1990) 3 NWLR (Pt. 137) 130; SCOA Nigeria Ltd. v. Mr. Olabode Vanghan & Anor. (2003) 1 NWLR (Pt. 800) 210 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535)242.
In this case, the trial Court found and held as follows:
I have carefully compared the signature of the legal practitioner who prepared Exhibits G and H, i.e. I.O. Ojeyokan Esq., and I find that they are the same. The hand written date on both documents are also the same. I also find that the signature of the legal practitioner aforesaid on both Exhibits G and H is the same as the one in Exhibit A. Taking the unchallenged evidence of PW2 side by side with my observation upon a comparison of the disputed signature with the admitted one I hold that I.O. Ojeyokan Esq., the 2nd defendant in this suit signed Exhibit G and H.
In view of the evidence of PW2 to the effect that Exhibit A is a photocopy of what he recovered from the 2nd defendant which I have accepted and in view of my finding that Exhibit H was signed by the defendant I hold that the figure 200,000 inserted into Exhibit G was done after the PW2 had recovered
the original and two carbon copies.
Exhibit G is therefore suspect and no weight can be attached to it. It makes no difference that it was certified by the High Court to be a true copy of what is before it. Exhibit H is also a certified true copy of what is also before the High Court. I do not know why it was difficult for the parties to bring to Court the exact copy that was tendered at the magistrates Court during the criminal trial of some accused persons arising from the facts of this case which was received as Exhibit D therein.
(Underlining mine for the sake of emphasis)
The 2nd respondent did not appeal against the finding of the trial court that the figure N200,000.00 inserted in exhibit G, was done after the PW2 had recovered the original and two carbon copies. Exhibit G is therefore suspect and no weight can be attached to it. The implication of the failure by the 2nd respondent to appeal against this finding of the trial Court is that he has accepted the finding as correct and true.See Standard Engineering (Nigeria) Co. Ltd. v. Nigerian Bank for Commerce and Industry (2006) 43 WRN 47; Madam Adunola Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252 and Wike E. Nyesom v. Hon. (Dr.) Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71.
If the 2nd respondent a lawyer, could insert the figure: N200,000.00, in a purported receipt he prepared for the appellant and the 1st respondent, to mislead the trial Court, then he could do any and all of the negative acts or things the appellant accused him of doing in the whole episode or saga of the appellant allegedly selling her house and/or land under a spell. This is very unfortunate.
In any case, the purported receipt marked as Exhibits A, H and G was not even signed by the 1st respondent, who is supposed to be the purchaser of the house, or any witness as indicated therein.
It is clear that since the only document evidencing the purported sale of the appellant’s house to the 1st respondent is Exhibit A or H, the alleged contract of sale is inchoate, because the total consideration or purchase price to be paid by the 1st respondent is not stated and the Court is at the mercy of the respective oral claims, counterclaims and evidence of the appellant and the 1st respondent. The Court is therefore to act on the evidence on oath of the appellant against that of the 1st respondent only, since that 2nd respondent has been discredited as a person who could easily mislead the Court.
A contract allegedly reduced into writing should not leave room for the parties to verbally state the agreed consideration, which is part of the main obligation of the buyer or transferee, who is the 1st respondent in this case. The law is as expressed in the Latin maxim: Verborum obligatio verbis tollitur which means: An obligation verbally incurred is verbally extinguished.
If the parties verbally agreed on the consideration to be paid, then the trial Court had no basis to accept that the balance due and payable to the appellant, in the contract for the sale of her house, if any, was 200,000.00 fraudulently inserted in Exhibit G and which was rightly rejected.
On the basis of the other documentary evidence, namely Exhibits A and H, the Court acted on mere speculation as the balance due and payable was neither specified nor stated in the receipt signed by the appellant, under terrible circumstances duly explained by the appellant. The law, as settled by many decisions of the Supreme Court, is that the Court has a duty not to indulge in conjecture, guesswork or speculation. See Pele Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548; Ikenta Best (Nig.) Ltd. v. Attorney General, Rivers State (2008) 8 NWLR (Pt. 1084) 612 and Olabisi Olakunle v. The State (2018) 6 NWLR (Pt. 1614) 91 at 106 per Eko, JSC.
In this case, having regard to the gory facts of the alledged scam pleaded by the appellant, in respect of which she led evidence at the trial, a reasonable Tribunal would have been more circumspect in arriving at its decision than the trial Court, as the parties were expected to prove their respective claims on the balance of probabilities.
Contrary to the erroneous opinion of the trial Court that the appellant’s evidence was at variance with her pleadings, the evidence tendered by the appellant, apart from some inconsequential discrepancies or
contradictions, was generally in tandem with the averments in her statement of claim. At the close of her case, the burden shifted to the respondents to prove that the 1st respondent validly negotiated for the purchase of the appellants house and properly paid for it. Having regard to the peculiar facts and circumstances of this case, to be able the tilt the scale of balance in their favour, the respondents ought to have fielded Mrs. Bola Masajuwa who both respondents claimed to have assisted the 1st respondent to approach the 2nd respondent to look for a tenement bungalow. If one may ask: Why did the 1st respondent insist on buying a tenement bungalow No answer was provided by the 1st respondent.
The respondents ought to have also called either Mr. Solomon Oni or Mr. John Ehisiemen or both of them since they claimed that they were the agents who linked them to the appellant and participated in the discussions leading to the alleged sale.
Although the respondents had the discretion to call such witnesses that they deemed necessary, Mrs. Bola Masajuwa, Mr. Solomon Oni and Mr. John Ehisiemen were vital witnesses whose evidence would have assisted the Court to determine the agreed purchase price and to also decide whether the appellant did or did not act under a spell as she claimed or at all. The failure by the respondents to field these vital witnesses is fatal to their case, especially the 1st respondent’s counterclaim.
In order not to prolong this judgment, from all the reasons given above, I resolve the three issues in this appeal in favour of the appellant and against the respondents.
If I may be permitted to state obiter, no judgment by a human being is perfect, but the judgment of our Almighty God is always certain and correct for He is infallible. However, truth is truth and, as expressed in the maxim: Veritas, a quocunque dicitur, a Deo estTruth, by whomsoever pronounced, is from God. Therefore, irrespective of the outcome of a legal contest, the conscience of each of the litigating parties remains a barometer by which he will continue to judge and advise himself. The highly respected sage Uthman Dan Fodio is widely reported to have once said Conscience is an open wound, only truth can heal it.”
Every lawyer should be happy to remind himself of the indelible words of Prof. Niki Tobi, JSC, a distinguished scholar and an erudite jurist who wrote in his book:- The Nigerian Lawyer, page 5 as follows:
A lawyer is not a liar. He is a truthful and perfect human being of intelligence, respect, courtesy and candour. A lawyer is not an interloper, intermeddler, confusionist or rambler. A lawyer is a person, who by the sheer dictates of his profession, exposes his services to those in need and in trouble. It is not part of the role of the lawyer to instigate litigation or dispute between parties.
I will not say anything more, save to conclude that having resolved all the issues in this appeal in favour of the appellant and against the respondents, the appeal is allowed for being very meritorious. The judgment of the trial Court in Suit No. B/406/2002 delivered on 15/09/2009 is hereby set aside, and in its place the appellant’s claim is granted and the 1st respondent’s counterclaim dismissed.
For the avoidance of any doubt, the plaintiff/appellant’s claim in Suit No. B/406/2002 is granted as follows:
a) It is declared that the transfer made by the 2nd defendant/respondent on 11/2/02 between the plaintiff/appellant and 1st defendant purportedly transferring plaintiff’s/appellant’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City to the defendant is null, void and of no legal effect whatsoever.
b) It is hereby declared that the purported transfer/receipt made by the 2nd defendant/respondent on 11/2/02 between the plaintiff/appellant and the 1st defendant does not meet the legal requirements of a deed of transfer and/or document relating to transfer of title to a real property the said document having not stated the total cost of the house.
c) It is further declared that the purported transfer/receipt made by the 2nd defendant/respondent on 11/2/02 between the plaintiff/appellant and 1st defendant/respondent is not capable of transferring the title of the plaintiff/appellant to that property lying, situate and known as No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, to the 1st defendant/respondent in that it was neither executed by both parties nor was any witness present.
d) An order is hereby made directing the 2nd defendant/respondent to return all the title deeds and documents relating to that plaintiff’s/appellant’s house at No. 1, Iyen Lane, Off Owina Street, Evbotubu Quarters, Benin City, which he took from plaintiff/appellant in course of this transaction.
The sum of N100,000.00 is hereby awarded as costs in favour of the appellant against each of the 1st respondent and the 2nd respondent.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading before now the judgment delivered by my learned brother M.A.A ADUMEIN, JCA. My Lord has painstakingly dealt with all the issues canvassed in this appeal and I align myself with the reasoning and conclusions reached therein.
Having resolved all the issues in this appeal in favour of the Appellant against the Respondents, it is also humble view that this appeal is meritorious and is hereby allowed. The judgment of the trial Court delivered on 15th day of September, 2009 in Suit No. B/406/2002 is hereby set aside and in its place the Appellant’s claim is granted and the 1st Respondent’s counterclaim dismissed.
I also award the sum of N100,000.00 as cost in favour of the Appellant against the each of the Respondent.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, M.A.A. ADUMEIN, JCA. I agree with the reasoning and conclusion that the appeal is meritorious. I also allow the appeal.
I abide by the consequential orders made in the lead judgment including order as to costs.
A.O. Edeki, Esq. –For Appellant
I. I. Ojeyokan, Esq. –