Alhaji Nuhu Yashe V. Mohammed Lawal Umar (2003)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
In the High Court of Justice at Katsina, the respondent who was the plaintiff claimed against the appellant who was the defendant on behalf of himself and other heirs of the late Alhaji Umar Kofar Tsauri as follows:
“(a) A declaration that the property lying and situated at Musa Abdullahi Road Kayalwa Quarters Katsina belongs to the heirs of the deceased.
(b) A declaration that the agreement between the deceased and the defendant was a pledge and not a sale agreement.
(c) An order compelling the defendant and/or his agents to transfer possession of the property and all documents over same to the heirs of the deceased.
(d) General damages.”
The pleadings ordered were duly filed and exchanged between the parties. The statement of claim was later amended with leave of court.
At the hearing, the respondent as plaintiff gave evidence on his behalf and called two witnesses who testified in support of his case while one witness testified on behalf of the appellant who was the defendant.
Briefly stated, the case of the respondent as plaintiff is that on the 16th day of February, 1983, a pledge agreement in respect of the house lying and situate at Musa Abdullahi Road, Kayalwa Quarters plot ‘B’, Katsina, was reached between the late Alhaji Umar Kofar Tsauri, the owner of the property and Alhaji Nuhu Yashe, the appellant. The pledge agreement was reduced into writing for which the sum of N10,000.00 was given to the late Alhaji Umar Kofar Tsauri. Although the agreement also contained a condition for the purchase of the property valued at between N35,000- N37,000.00, the property was not sold by late Alhaji Umar Kofar Tsauri to Alhaji Nuhu Yashe, the appellant, before the death of Alhaji Umar Kofar Tsauri even though the pledged property was not redeemed by the late Alhaji Umar Kofar Tsauri before his death. All efforts to recover the pledged property from Alhaji Nuhu Yashe, by the plaintiff on his own behalf and other heirs failed, hence, the institution of the action at the trial court.
On the other hand, the appellant as defendant, agreed that a pledge agreement in writing was reached between him and the late Alhaji Umar Kofar Tsauri but claimed that it was in respect of both plots ‘A’ and ‘B’ that the late Alhaji Umar Kofar Tsauri pledged the houses to him for the sum of N10,000.00. The appellant however claimed that they also reached another agreement for the purchase of the pledged property at the sum of N22,000.00 if the late Alhaji Umar Kofar Tsauri did not refund the pledge amount on or before the 31st day of May, 1983 and the appellant claimed that he had paid the balance the sum of N12,000.00 to the late Alhaji Umar Kofar Tsauri, therefore, he claimed the ownership of the property.
At the conclusion of evidence, counsel on both sides addressed the court. The learned trial Judge in a reserved judgment considered the facts of the case and the issues raised before him and found for the plaintiff when he concluded his judgment as follows:
“From what I quoted in connection with this case in hand, I held that there is no contract of sale between the defendant and the plaintiff’s father. I also hold that the defendant had not paid the whole balance of N12,000.00 because there was no evidence of such payments.
Therefore I accept the evidence of the plaintiff that the defendant loaned his father the sum of N16,200.00 for the pledge of Blocks ‘A’ & ‘B’. In view of what I have said above, I make the following orders:
1.That the property lying and situated at Musa Abdullahi Road, Kayalwa Quarters, Katsina, belongs to the heirs of late Umar Kofar Tsauri.
2.That the agreement between the defendant and late Alhaji Umar Kofar Tsauri over the above property was a pledge not a sale agreement.
3.That the defendant should return the property and all the documents with him to the heirs of late Alhaji Umar Kofar Tsauri.
4.That the plaintiff to refund the sum of N16,200.00 to the defendant within one month of this court. While the defendant to deposit the certificate of occupancy and collect his money.”
Dissatisfied with the judgment of the trial court, the appellant appealed to this court by his notice of appeal dated and filed on 9th day of October, 2000 containing two grounds of appeal. Briefs of argument were filed and exchanged between the parties in accordance with the rules of practice of this court. Two issues were distilled from the grounds of appeal for the determination of this appeal by the appellant and are as follows:
“3.1 Whether the transaction between the appellant and the respondent’s father had become a sale?. (Ground 1 of the appellant’s grounds of appeal).
3.2 Whether the learned trial Judge properly acted on exhibits 1 & 2 together with the evidence of PW2 & DW1 in coming to the conclusion contained in the judgment for granting the relief sought by the respondent at the trial?.”
The respondent on the other hand also formulated the following two issues for determination in this appeal:
“1. Whether the transaction between the respondent’s late father and the appellant was a sale or pledge agreement?.
2.Whether the Hon. Judge based his judgment on the totality of evidence before him?.”
The appeal came for hearing on 20th February, 2003 wherein both counsel for the parties adopted and relied on their respective briefs.
After a careful examination of the issues formulated by both counsels, I am of the view that the issues formulated by the learned counsel for the respondent are more encompassing than the ones formulated by the learned counsel for the appellant. I, therefore, adopt the two issues formulated by the respondent in the determination of this appeal.
Arguing his issue No.1, in the appellant’s brief dated 10/9/2002, filed on 13/9/2002, deemed properly filed and served on 19/9/2002 by order of this court, learned counsel for the appellant, M. Abdullahi, Esq., relying on the authority of Attorney-General of Kaduna State v. Atta (1986) 4 NWLR (Pt. 38) 785 at 786, submitted that a careful study of exhibit ‘A1’ and the plaintiff’s evidence as PW1, reveal that there were all the features of a valid contract of sale in the transaction as contemplated or held in the case relied upon by the trial Judge. According to the learned counsel for the appellant, PW1, stated unequivocally that the property was first offered to the appellant at N28,000.00 before he counter offered the sum of N22,000.00 which was accepted. He posed a question that even if the appellant did not balance up the N12,000.00 in full which he is not conceding, would it be right for the trial Judge to rescind the contract? Answering the question, counsel for the appellant submitted that the answer is in the negative and urged the court to agree with his submission.
He further submitted that the transaction between the parties was not voidable and that the only option open to the respondent was to claim the balance. In conclusion, learned counsel for the appellant urged the court to answer issue No.1 in the positive as the transaction between the parties had become a sale as a result the respondent was not entitled to the reliefs claimed.
Responding to the submission of the learned counsel for appellant on issue No.1, Ahmed M. Danbaba, Esq., learned counsel for the respondent in the respondent’s brief dated 28/10/02, filed on 31/10/02, submitted that the trial court was right when it held that the agreement between the parties was a pledge agreement. He said that a careful perusal and analysis of the evidence of PW1, PW2, PW3 and DW1 would reveal that the agreement between the parties is a pledge agreement. Learned counsel pointed out that exhibit ‘A’ is unequivocal on the fact that the agreement was a pledge agreement.
It is argued that before there could be a sale agreement there must be a definite offer capable of being accepted. Learned counsel for the respondent further explained that to constitute a binding contract of sale, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof, the parties must intend to create legal relations, citing Alfotrin v. A-G Federation (1996)12 SCNJ 236,256; AND Olaopa v. O.A.U. (1997) 6 SCNJ 16 at 56.
He emphasized that the wordings in exhibit ‘A1′ is so clear and unambiguous that does not require extrinsic evidence to vary, alter or amend it. Concluding his submission, learned counsel for the respondent further submitted that the agreement clearly stated that the late Alhaji Umar Kofar Tsauri, the respondent’s father had pledged his property to the appellant for that reason, he urged the court to resolve issue No.1 against the appellant.
A court is bound by the parties’ pleadings and cannot decide a case upon a matter not raised on party’s pleading. See Ogiamien & Anor. v. Ogiamien (1967) NMLR 245; Y. A. Oseni & Ors. v. Salami Taylor (1975) 2 WSC at 766; and Ochonma v. Unosi (1965) NMLR 321. In view of the importance of pleadings, in a case of this nature fought on the pleadings, I find it necessary to reproduce some of the paragraphs of the pleadings relied upon respectively by the parties at the trial court. I consider paragraphs 3,4,5,6,7,8,9 and 10 of the amended statement of claim as well as paragraphs 3, 4 and 5 of the statement of defence relevant and the paragraphs are hereby reproduced below-
AMENDED STATEMENT OF CLAIM
“3. That the said Alhaji Umar K. Tsauri died and left behind 2 married women, 3 sons and 3 daughters.
4.That late Alhaji Umar Kofar Tsauri hereinafter referred to as the deceased also left properties among which are two flats covered by C of O No. 350 lying and situated at Musa Abdullahi Road, Kayalwa, Katsina.
5.That the deceased pledged one of his house (Block B) lying and situated at Musa Abdullahi Road, Kayalwa, Katsina to the defendant at the sum of N10,000 and also deposited the certificate of occupancy No. 350 with the defendant. Notice is hereby given to the defendant to produce the original certificate of occupancy.
6.That the deceased pledged the property on 16/2/83 on condition that if by 31/5/83 the deceased was not able to redeem the pledge, the defendant was to pay the sum of N12,000 to the deceased as full value of the property. A Hausa and English translation of the pledge agreement is hereby pleaded.
7.That up to the time the deceased died, the defendant only paid the sum of N 16, 200.00 and reclaim his property.
8.That immediately the property was pledged to the defendant, he took possession of the two sets of flats and drove away the security guard attached to the two flats by the deceased.
9.That the defendant also converted the following properties to his use despite protest by the deceased. A Hausa and English version of the letter written by the deceased to his daughter Hajiya Ama’u containing the above are hereby pleaded.
10.That the plaintiff hereby pleads both Hausa and English version of the copy of the agreement correspondences between the deceased and the defendant and all documents, letters that are germane to this suit.”
STATEMENT OF DEFENCE
“3. The defendant admits paragraph 5 of the plaintiff’s statement of claim and further states that the pledge agreement had matured to a sale agreement since the 13th day of May, 1983.
4.That the defendant admits paragraph 6 of the plaintiff’s statement of claim to the extent that the conditions was to enable the deceased redeem his properties on or before the 31st day of May, 1983 and not 31st day of March, 1983. The pledge agreement in Hausa and its translated version to English dated the 16th February, 1983 are hereby pleaded.
5.That the defendant denies paragraph 7 of the plaintiff’s statement of claim and puts plaintiff to the strictest proof of the averment therein. In further reply to the said paragraph, the defendant states that he has paid the balance of N12,000 to the deceased before his death in different instalments.
The defendant shall among other documents rely on Hausa and English translation copies of –
(i) The letter of acknowledgement of the receipt of the sum of N5,000.00 by one Alhaji Dalha on behalf of the deceased on the 24th day of June, 1983.
(ii) The letter of confirmation of the mode of payment evidencing the full and final settlement of the N12,000.00 balance written to the defendant by the deceased’s agent, Alhaji Dalha.
(iii) The letter of acknowledgement of the receipt of the sum of N5,000.00 on the 13th July, 1983 to the defendant evidencing his failure to repay the N 10,000.00 to the defendant on or before the 31st day of May, 1983.
(iv) The letter from the deceased’s former solicitor Yahaya Mahmood, Esq., contradicting the plaintiff’s claim in paragraph 7.”
As earlier stated, evidence was adduced by the parties in support of their respective case. I shall also refer to some portion of the evidence of the witnesses that I consider relevant in the determination of this appeal. PW2, Ahmed Mamman Yandaki who wrote exhibit ‘A’, the pledge agreement which was translated into English and tendered in evidence as exhibit ‘A1’ testified at pages 42 – 43 of the record. The relevant portion reads:
“On the 16th February, 1983, I was a student at the College of Legal Studies Katsina, I was called to write a pledge transaction between Alhaji Umar Kofar Tsauri (deceased). The houses are plot ‘A & B’. The pledge was in respect of plot ‘B’ excluding plot ‘A’. The pledge agreement was written on the back side of the photocopy of the Certificate of Occupancy. I signed the agreement, also Alhaji Umar Kofar Tsauri. But I could not remember whether Dalha Mani signed although he was present when the agreement was written. The houses were situated at the Government Printing Press at the North. After we endorsed the agreement written behind the certificate of occupancy was taken to the defendant, he (defendant) refused to accept that agreement on the ground that he was not satisfied with the way the agreement was written. The defendant asked for a formal agreement to be drawn up. The agreement was still in respect of plot ‘B’. I cannot remember the exact amount but I knew the sum of N5,000 was given by the defendant.”
PW2 was cross-examined at pages 42 – 43 of the record as follows:
“…by A. D. Umar: Before the date for the pledge, I have seen the certificate of occupancy covering the said houses. Two houses were built A & B on the plot covered by the certificate of occupancy. I am related with late Alhaji Umar Kofar Tsauri. He was my Uncle. I read the contents of the two agreements. There was a condition for sale, put into the pledge agreement and the agreement was for plot ‘B’. This is the agreement I referred to in my evidence. In this agreement it was stated that the two buildings on the land were the one pledged to the defendant. I agree that the pledge was for the two houses build on the land”.
The evidence of the plaintiff, Mohammed Lawal Umar is at pages 43 – 44 of the record. It reads:
“On the 16th February, when myself and my father came to Katsina, a pledge was written which was in respect of that house valued at N22,000 and the pledge was for N10,000. My father was expecting to get that N10,000 there and then but was only given certain amount I did not know how much was given. But I knew when this transaction was started on 10th February, 1983, my father collected the sum of N5,000 from the defendant at Yashe and from there we proceeded to Kaduna.”
One witness testified on behalf of the defence and his evidence is at page 46 of the record. The witness, one Dalha Mani, said-
“On the process of the construction of the said houses, late Umar Kofar Tsauri became short of money. He asked where he could get money in order to continue the building. I told him to approach the defendant. Myself and the deceased Umar Kofar Tsauri went to the defendant. He (defendant) has agreed to lend the money and but he must be given a collateral before he gave the money. Based on this, late Alhaji Umar Kofar Tsauri told him that he had a plot in which he put up two houses were valued at N25,000.00. Then the defendant said he would not buy the houses at that price but he offered N22,000.00. Both agreed at that price. The late Umar then said that he wanted N10,000.00 and pledged the two houses at that agreed price, if he failed to return the N10,000.00 within 3 to 4 months (I do not know precisely) that the defendant would pay the balance of N12,000 to take over ownership. Then an agreement letter was drawn up both parties signed. I signed the agreement as a witness. To my knowledge the late Alhaji Umar Kofar Tsauri did not return the N10,000.00.The defendant has paid late Alhaji Umar Kofar Tsauri in three instalments. 1st payment was N5,000.00; 2nd payment was N5,000.00 and 3rd payment was N2,000.00 but he only acknowledged the 1st instalment but for the other payments up to his death, he did not acknowledge them. The payments were made in my presence all the payments were made through me. I cannot identify the agreement now because of eye trouble. That is all.”
After considering the evidence adduced by the parties and address of counsel, the learned trial Judge in his judgment at pages 54 -55 of the record inter alia held:
“I agree with the issues formulated by the plaintiff’s counsel… I rejected the suggestion made by the defendant’s counsel that this agreement can be regarded as sale agreement because of the clause which stated that the defendant may take possession of the house in case the plaintiff’s father fails to refund the loan, therefore, in order to have proper contract of sale, there must be offer and acceptance which are the basic requirements of a contract, i.e., there must be an agreement reached between the parties concerned. An agreement consists of an offer by one party and acceptance by the party to whom the offer is made.”
On issue No.1, it can easily be seen from the pleadings of the parties that by his paragraphs 3 and 4 of the statement of defence, the appellant as defendant admitted paragraphs 5 and 6 of the amended statement of claim. In effect, the respondent admitted entering into a pledge agreement tendered in evidence as exhibit ‘A1’, a pledge agreement.
It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof. See Uwegba v. Attorney-General, Bendel State (1986) 1 NWLR (Pt. 16) 303; Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511.
But there are circumstances in which documents are pleaded and although admitted by the other party will need to be tendered in evidence in order for the court to be aware of their contents and to give them their proper interpretation. In the instant case, in addition to the admission of the pledge agreement by the appellant, the respondent still led evidence in support of his case. It cannot be disputed from the contents of exhibit ‘A1’ as well as the admission in the pleadings that a pledge agreement was reached between the appellant and the late Alhaji Umar Kofar Tsauri, the father of the respondent. The rule is that when transaction has been reduced to, or recorded in writing either by the requirement of law or agreement of parties, the writing becomes in general, the exclusive record thereof, and no evidence may be given to prove the terms of the transaction except the document itself or secondary evidence of its contents. See Union Bank of Nigeria Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385. It therefore follows that the most important evidence to be considered in the instant case is the documentary evidence exhibit ‘A1’ relating to the transaction between the appellant and the late Alhaji Umar Kofar Tsauri, the respondent’s father.
Furthermore, I agree with the observation of the learned trial Judge that the appellant has abandoned his paragraph 5 of the statement of defence as no evidence was led in support of the averment that the balance of the sum of N12,000.00 was paid to late Alhaji Umar Kofar Tsauri by the appellant during his life time in compliance with the purported contract of sale agreement. I also therefore hold that there is no credible evidence on the part of the defence relating to payment by the appellant to the late father of the respondent except the payment admitted by the respondent.
There is no way a pledge can metamorphose to a permanent ownership. A pledge always remains a pledge. See Duruoshimiri v. Duruodunze (2001) 9 NWLR (Pt. 717) 244 at 251. Although exhibit ‘A1’, contains what appears to be a conditional sale which the appellant relies upon as a contract of sale agreement in respect of the property pledged to him by the late Alhaji Umar Kofar Tsauri, the father of the respondent, can exhibit ‘A1’ be regarded as contract of sale agreement as claimed by the appellant? In order to answer the question, it is necessary first to start by ascertaining what is a contract.
In Orient Bank (Nig.) Plc. v. Bilante Inter’l Ltd. (1997) 8 NWLR (Pt. 515) 37 at 76 this court stated as follows:
“A contract is an agreement between two or more parties which creates reciprocal legal obligation or obligations to do or not to do a particular thing. For a valid contract to be formed there must be mutuality of purpose and intention. The two or more minds must meet at the same point, event or incident. Where or when they say different things at different times they are not ad idem and therefore no valid contract is formed. The meeting of minds of the contracting parties is the most crucial and overriding factor or determinant in the law of contract.”
Also in Alfotrin Ltd. v. A.-G., Federation (1996) 9 NWLR (Pt. 475) 634,657 the Supreme Court said thus:
“If the terms are unsettled or certain or vague that they cannot be ascertained with reasonable degree of certainty, there will be no valid contract enforceable at law unless the uncertain part of the contract is unsubstantial and can be separated from the vital parts thereof.”
Applying the authorities cited above which defined and enumerated what constitute a valid contract the contents of exhibit ‘A1’, does not qualify as a valid contract. I agree with both the learned trial Judge and the learned counsel for the respondent that there is no valid contract of sale of the property – a house between the appellant and the late Alhaji Umar Kofar Tsauri. On the other hand, it cannot be disputed from the contents of exhibit ‘A1’, reproduced herein that there is in fact a pledge agreement between the appellant and the late Alhaji Umar Kofar Tsauri, the father of the respondent. It is the law that a pledge always remains a pledge.
While I agree with the submission of the learned counsel for the appellant that the evidence of PW1, PW2 and even DW1 contains hearsay evidence, I am unable to agree with him that the learned trial Judge relied on the hearsay evidence in his judgment. As can clearly be seen from the judgment of the learned trial Judge, he relied heavily on the documentary evidence exhibit ‘A1’, the existence of which the appellant is not disputing having admitted it in his statement of defence. I therefore agree with the learned trial Judge that the transaction between the appellant and the late Alhaji Umar Kofar Tsauri, the respondent’s father is a pledge agreement and not a sale agreement. In effect, Issue No. 1 is resolved against the appellant in favour of the respondent.
Having held that the transaction between the respondent’s father and the appellant is a pledge agreement and not a sale agreement as found by the learned trial Judge from the evidence adduced before him by the parties particularly the documentary evidence, exhibit ‘A1’, my answer to issue No.2 is obvious as the learned trial Judge based his judgment on the totality of the evidence before him. In the result, I hold that there is no merit in this appeal which I hereby dismiss. The judgment of the learned trial Judge, Ibrahim, J., delivered on 17/10/2002 is hereby affirmed by me with costs assessed at N5,000.00 in favour of the respondent against the appellant.
Other Citations: (2003)LCN/1387(CA)