Emmanuel Omozeghian V. Chief J. J. Adjarho & Anor (2005)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The appellant, a retired driver with the Edo State Civil Service is the owner of a house situated at and known as No. 18 Good Samaritan Road, Uselu, Benin City, where he lives with his family and some rent paying tenants. He entered into a hire purchase agreement for the purchase of a vehicle in April 1994, and when he could not pay accumulated monthly installments of N30,000.00 (thirty thousand Naira) the hire purchase company seized the vehicle from him. To assist the appellant, the 2nd respondent took him to the 1st respondent on the 5th of September, 1995 to secure a loan. According to the appellant, the 1st respondent agreed to lend him the sum of N150,000.00 (One hundred and fifty thousand Naira) at an interest rate of 35% repayable by the 5th of September, 1996 but the 1st respondent’s lawyer in collusion with the 1st respondent prepared a sale agreement for his house, which was read over to the illiterate appellant as a loan agreement, which he signed.

The appellant claimed that he discovered the fraud the following year when he went to the 1st respondent to plead for more time to repay the loan and was told that the agreement he signed was for the sale of his house and this was followed with a letter dated 26th August, 1996 and headed “Reminder of Sales Agreement of 5/9/95” telling the appellant to vacate the house for the 1st respondent on or before the 4th day of September, 1996. It was on the receipt of this letter that the appellant brought out the agreement for someone to read to him and was shocked to be told that the document said that he had sold his house to the 1st respondent for N780,000.00 (seven hundred and eighty thousand Naira). The 1st respondent thereafter caused a “Not for Sale” sign and his name to be painted on the appellant’s house.

Alarmed at this development, the appellant instituted an action against the respondents at the High Court of Justice, Benin City before Hon. Justice G. E. Edokpayi, wherein he sued the respondents for the following reliefs:-

1. A declaration that the agreement made between the plaintiff and the 1st defendant on the 5th of September, 1995 in as much as it purports to be a Sales Agreement, is fraudulent, illegal, null and void and of no effect.

Particulars of Fraud

When the document in question was read to the plaintiff, who is an illiterate, the aspect relating to sale of the property as well as the sum of N780,000.00 was cleverly concealed from him.

What was read to the plaintiff was that a loan of N150,000.00 had been granted by the 1st defendant to the plaintiff with an interest rate of 35% repayable by the 5th of September, 1996.

Particulars of Illegality

(i) By virtue of S. 34 of the Land Use Decree 1978 the plaintiff is deemed to hold a statutory right of occupancy in respect of the land in question, consequently, S. 22 of the land Use Decree makes it unlawful to alienate such land without the consent of the Military Governor First and obtained.

(ii) S. 6 of the Lands Instruments Registration Law requires such document to be reg1stered before it can be used. S. 8 provides that no such document can be registered unless the illiterate executing it does so in the presence of a Magistrate or other approved Judicial Officer with such officer verifying such execution.

2. A declaration that the 1st defendant’s conduct in invading the plaintiff’s premises, painting his name on the plaintiffs building situate at No, 18 Good Samaritan Road, Uselu, Benin City and threatening to evict the plaintiff therefrom is an act of trespass.
3. N50,000.00 damages for the defendant’s acts of trespass.
4. An order that the 1st defendant return to the plaintiff, the title documents to the land used by the plaintiff to secure a loan of N150,000.00 obtained from the 1st defendant, viz:-

(a) The two Oba’s approvals.

(b) The building plan of the house erected on the land.

5. An order of perpetual injunction restraining the defendants, their agents, servants or privies from further trespassing on the plaintiff’s said property.

At the trial that ensued, the appellant testified for himself, while the 1st respondent and another witness testified for the respondents. After hearing addresses from counsel, the learned trial Judge, Edokpayi, J., delivered his judgment on the 14th of July, 2000, wherein he held as follows-

“I have not and I do not believe the evidence of the plaintiff. I believe the 1st defendant and the defence witness, Aghojah, Esq., whose evidence have been amply supported by the contents of exhibit D which the plaintiff and his witness in that document willingly and intentionally executed as the written agreement of the transaction between the plaintiff and the 1st defendant. Weighing the evidence adduced by the plaintiff in support of his claims and placed side by side the evidence of the defence on the imaginary scale of justice of this case; I prefer the case of the defence to that of the plaintiff. I finally come to the conclusion that the plaintiff has not established his case or any of his claims on the preponderance of evidence. Consequently, the plaintiff’s claims and action which lack merit are dismissed”.

Aggrieved by the above decision, the appellant filed a notice of appeal with six grounds of appeal in this court, and in line with the Rules of this court, briefs of arguments were duly filed and exchanged. In the appellant’s brief prepared by O. V. Omoijahe, Esq., the following issues for determination were formulated as calling for determination in this appeal:-

1. From the evidence before the court and the surrounding circumstances of the case, was the learned trial Judge right in believing the evidence of the defence that the transaction was a sale rather than a loan secured by depositing title documents?

2.(i) Was the learned trial Judge right in failing to advert his mind to the provisions of the Land Use Act particularly sections 34, 22 & 26 thereof, and section 8 of the Land Instruments Registrations Law, Vol. IV, Cap. 81, Laws of the former Bendel State of Nigeria applicable in Edo State and holding that the house has been sold to the 1st defendant who thereby became the owner?

(ii) Has the 1st defendant, in as much as he is claiming to have bought and taken possession of the house in question, discharged the onus of establishing that all the statutory conditions precedent to the vesting of title in him had been satisfied?

(iii) If the answer to the above is in the negative, was the learned trial Judge right in holding that the plaintiff had not established his claim as contained in reliefs 1,2,3, and 5 of his amended statement of claim on the preponderance of evidence?

3. Was the learned trial Judge justified in invoking section 151 of the Evidence Act against the plaintiff in respect of exhibit D, a document made by the 1st defendant?
4. Was the learned trial Judge correct in holding that the plaintiff gave no evidence in support of his claim in paragraph 41 of his amended statement of claim and holding that the said paragraph had been abandoned?

It was however submitted in the respondent’s brief settled by S. O. Agwinede, Esq., the issues calling for determination lie within a narrow compass, and the following issues numbered (5) to (7) were formulated as so arising:-

5. Whether a party who is charged with the responsibility of obtaining consent under the Land Use Act, 1978 to a Deed of Transfer but failed to do so can turn round to challenge the validity of the Deed to evade his obligation thereunder, on the ground that the required consent of the Governor was not obtained thereto?
6. Whether from the quality and quantity of the evidence adduced before the lower court, the learned trial Judge was justified in holding that the appellant has not proved his case as required by law and consequently dismissing same?
7. Whether the learned trial Judge properly reviewed, evaluated and appraised the evidence adduced before him before arriving at his conclusion and final judgment?

I agree with the respondents that the issues as formulated by the appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the appellant split his issue 2 into (i), (ii), & (iii) which is absolutely unacceptable. Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips. See Iloabuchi v. Ebigbo (2000) 8 NWLR (Pt. 668) 197; & Ehikhamwen v. Iluobe (2002) 2 NWLR (Pt.750) 151 where the court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues.

In my view, the issues formulated by the respondents are more to the point and capture in a nutshell, the essence of the complaints in the grounds of appeal, and I will adopt them in dealing with this appeal. Before addressing the issue of Governor’s consent however, I consider it best to first of all resolve the issue of whether the learned trial Judge was justified in holding that the appellant has not proved his case as required by law.

It is the appellant’s submission that in arriving at the conclusion that the appellant could not have entered an agreement to repay N780,000.00 in a year when he was unable to pay a monthly installment on N10,000.00 to the hire purchase company, the learned trial Judge did not advert his mind to the fact that the loan was to have been used to reclaim the appellant’s vehicle, with the attendant hope of beginning afresh and on a sounder foundation based on the extra fund that would be available from the loan. Furthermore, that the learned trial Judge also failed to advert his mind to the fact that borrowers are usually necessitous men who sign agreements almost always in desperation or ignorance of the legal jargons inserted by the draftsmen, or more still, because of not having the advantage of legal advice. Consequently, that the appellant was a victim of undue influence who had a most unreasonable and unconscionable bargain foisted on him, citing Pan Bisbilder (Nig.) Ltd. v. First Bank (2000) 74 LRCN 127 (2000) 1 NWLR (Pt.642) 684.

It was further argued that there was ample evidence before the learned trial Judge that DW1-C. Aghojah Esq., and the respondents are all Urhobos by tribe, and they took advantage of the fact that the appellant was the only stranger in their midst to introduce obnoxious terms into the agreement to the disadvantage of the appellant, an illiterate who could neither read nor write and who had no independent legal advice or representation. Citing Pinnock v. G. B. Ollivant Ltd. (1934) 2 WACA 164, & Multi Service Book Binding Ltd. v. Marden (1979) 1 Ch. 84, it was further submitted that the court shave been more than willing to bend over backwards to ensure that borrowers of the appellant’s calibre are not taken advantage of.

It is the respondents’ contention however, that the quality and quantity of the evidence adduced by the appellant in the lower court were grossly inadequate, unconvincing and totally lacking in probative value, and that the learned trial Judge painstakingly and meticulously reviewed the facts of the appellant’s case vis-a-vis that of the 1st respondent to dispassionately determine in whose favour the imaginary scale of justice tilted. Furthermore, that the feeble attempt by the appellant to resile from the agreement voluntarily by resorting to falsehood and lying against exhibit D – the loan agreement, was completely thwarted and destroyed by the evidence of DW1 which he gave with characterlstic candour, and which evidence the learned trial Judge had not the least hesitation in believing. It was further submitted that the learned trial Judge finally disbelieved his evidence and believed that of DW1 and the 1st respondent; that it is trite law that the evaluation of the evidence of witnesses is within the exclusive jurisdiction of the trial Judge who has seen and heard the witnesses when they testified in the witness box; and that an appellate court cannot interfere with such evaluation except in exceptionally rare cases and do so only when the justice of the case demands such interference, citing I. O. Ojosife & Ors. v. Adekunle Odunsi (1979) 2 FNR 9; Paul Omoregbe v. Ehigiator Edo SC 142/69; Bakare v. Folontnso V. I. A. Adeyemi (1975) 1 NMLR 128.

The respondents are right. The duty of ascribing probative value to evidence is primarily that of the trial court. This duty is based on the fact that the trial court, unlike the appellate court, has the advantage of seeing and observing the witnesses’ demeanor, candour or partisanship as the case may be, their integrity, manners and comportment, and assessing the background from which the witnesses testify while testifying and drawing necessary inferences – see Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40; Awudu v. Daniel (2005) 2 NWLR (Pt. 909) 199. In other words, a trial court is entitled to determine after listening to witnesses and watching their demeanor in the witness box, which witness to believe and which one not to believe. In this case, the learned trial Judge simply did not believe the appellant.

In his judgment at pages 106 – 107 of the record, he stated as follows:-

“I believe the 1st defendant’s evidence and I believe the evidence of Aghojah, Esq., I do not believe that the plaintiff used the house at No. 18A, Good Samaritan Road, behind Uselu Motor Park, Benin City, as a security against any loan secured from the 1st defendant. I believe that the plaintiff sold the house to the 1st defendant as stated in exhibit D, which is jointly executed by the plaintiff, the 1st defendant and their witnesses. The plaintiff who wants this court to believe him has not explained why he had to finally take the loan of N150,000.00 at the high interest rate of 35% per month when the loan which he actually wanted and which the 2nd defendant promised to help him to secure and which he himself and the 2nd defendant set out for the house of the 1st defendant to secure for him (the plaintiff) was only N30,000.00, more so, when on 5/9/95 when he was receiving the money which he called loan, it was made clear to him by the 1st defendant that a year from that date, he (the plaintiff) will be owing N780,000.000 instead of N30,000.00 which compelled him to seek and secure that money which he called loan. The plaintiff testified that as soon as he secured the loan on 5/9/95, he went to pay what he was owing on his hire purchase agreement. The plaintiff and his witness in exhibit D, having voluntarily secured the money by execution of that document as it is, the plaintiff will not be allowed to resile from that agreement. I believe Aghojah, Esq., when he testified that the issue of interpretation of any word or expression in exhibit D did not arise when he read out the contents of exhibit D to the plaintiff and the defendants. I believe him when he testified that the plaintiff did not request for any interpretation of the document to him. The plaintiff having failed to prove any pleaded fraud, he is estopped from saying that exhibit D, which he and his witness in that document voluntarily signed, and on the basis of which document, he collected money from the 1st defendant is not a sales agreement and/or meant by the parties to that agreement to be a sales agreement, which it is. The reason is that section 151 of the Evidence Act provides as follows-

‘When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person s representative in interest, to deny the truth of that thing’.

The plaintiff intentionally executed exhibit D and he thereby caused the 1st defendant to believe and act on it as a Sales Agreement upon which the 1st defendant parted with his money to the plaintiff who received and used same. The words and expressions used in exhibit D, the agreement, are clear and unambiguous. In Union Bank v. Ozigi (1994) 3 NACR 1; (1994) 3 NWLR (Pt.333) 385 – The agreement, exhibit D, expressly and clearly stated that it is a sale agreement. It is not now for this court to alter that express and clear statement of fact made in exhibit D”.

In arguing that the learned trial Judge was wrong to have invoked section 151 of the Evidence Act against the appellant over exhibit D made by the 1st respondent, the appellant submitted that in arriving at his conclusion, the learned trial Judge totally ignored the appellant’s evidence of the circumstances surrounding the preparation of exhibit D; that it was not the intentional execution of exhibit D that gave rise to the dispute but the intentional misrepresentation of the content of the agreement by the 1st respondent and his lawyer to the illiterate appellant, and if the learned trial Judge had adverted his mind to the above circumstances, he would have found that it was the 1st respondent and his lawyer that intentionally caused the appellant to believe that exhibit D was a loan agreement as opposed to a sales agreement which it turned out to be. Furthermore, that if the learned trial Judge had considered the protestation of illiteracy by the appellant, he would have found that it was the 1st respondent that intentionally caused the appellant to act on exhibit D as a loan agreement, since illegality, fraud and want of execution were raised by the appellant in paragraph 41 of his amended statement of claim, and extensively canvassed by his counsel during his address. Sanyinna v. A. I. B. (2000) 6 WRN 23 cited. It was also argued that the lower court was wrong to hold that the appellant did not give any evidence to support his claim in paragraph 41 of the amended statement of claim, as there was sufficient evidence adduced to support the said claim.

The respondents however argued that after making very detailed and elaborate findings of fact, the learned trial Judge came to the logical and irres1stible conclusion that the appellant by his actions and conduct made the 1st respondent part with his N780,000.00 after executing exhibit D voluntarily and handing over his title deeds of his house to the 1st respondent, and that the appellant did not make any attempt to report the alleged fraud to the Police and could not establish same by any credible evidence, therefore the learned trial Judge was right to invoke the provisions of section 151 of the Evidence Act and to hold that the evidence adduced were not sufficient to sustain the claims on the said paragraph 41.

It was further submitted that assuming without conceding that the appellant is an illiterate, the appellant is still bound by the contents of exhibit D, prepared by a legal practitioner, citing Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor. (1994) 7 NWLR (Pt. 358) 511, & section 5 of the Illiterates Protection Law, Cap. 70, Laws of Bendel State now applicable to Edo State, which it was submitted exempts documents prepared by a legal practitioner from the protection provided by law for illiterates, and that the learned trial Judge having heard the testimony of DW1, the legal practitioner who prepared exhibit D in the normal course of his business was perfectly entitled to believe him and disbelieve the appellant as he rightly did.

Now, the key issue that would determine this appeal is whether the appellant is an illiterate as he claimed or not. Unfortunately, even though the learned trial Judge did not believe the appellant’s evidence in its entirety, he did not make a specific finding on the issue. Fortunately, however, all is not lost, as this court is in as good a position as the trial Court in making its own findings, where such findings are not based on the demeanor of witnesses or are inferences from other findings properly made – see Oyedeji v. Akinyele (2002) 3 NWLR (Pt. 755) 586; Sokwo v. Kpongbo (2003) 2 NWLR (Pt. 803) 111, & Jiwul v. Dimlong (2003) 9 NWLR (Pt. 824) 154. An “illiterate” within the meaning of the Illiterates Protection Law is a person who is unable to read with understanding and to express his thoughts by writing in the language used in the document made or prepared on his behalf; that is a person who is totally illiterate. A person who is unable to read or write the language in which a particular document is written but who can read or write in some other language, is not an illiterate within the meaning of the Illiterates Protection Act – see Girgiri v. Elf Marketing (Nig.) Ltd. (1997) 2 NWLR (Pt. 487) 368; Mainagge v. Gwamna (1997) 11 NWLR (Pt. 528) 191 & Otitoju v. Gov., Ondo State (1994) 4 NWLR (Pt. 340) 518, where the Supreme Court held that the question whether a person is literate or illiterate cannot be presumed by the court but must be established by evidence, and that the burden of proof of illiteracy is on the party who raises it.

In this case, appellant averred in paragraph 36 of his amended statement of claim that – “he cannot read or write and so did not know what was written in the agreement paper, and as such was merely relying on the bona-fide of the defendants and their lawyer”.

In his evidence in chief, he testified as follows:

“I told the 1st defendant that I wanted to borrow from him the sum of N150,000.00. When we got to the office of the lawyer, the lawyer brought out the agreement, which he had already prepared. I could not read the contents of the agreement and so the lawyer read out the contents of the agreement to me in the presence of 1st and 2nd defendants. We were the only four persons present when the lawyer read the agreement and so the lawyer read out the contents of the agreement to me in his chambers. What the lawyer read to my heating was that I borrowed from the 1st defendant the sum of N150,000.00 with interest of 35%. The lawyer calculated the whole amount I was to pay in a year, both capital and interest, and it came up to N780,000.00. When he read the agreement to me, the lawyer did not read to me that I sold the house to the 1st defendant. After the lawyer had read the agreement to me, I signed it and the 2nd defendant who took me to borrow the money from the 1st defendant then signed the agreement as my witness. I was then given my own copy of the agreement. The loan of N150,000.00 was then given to me by the 1st defendant.”

DW1, Chris Aghojah, Esq., who prepared exhibit D testified as follows:-

“Based on the information which the plaintiff and the 1st defendant gave to me, I then prepared an agreement in triplicate for them. After the preparation of the agreement, I gave a copy each to the plaintiff and the 1st defendant while I had my own copy. As the plaintiff and 1st defendant were reading their own copies silently to themselves, I preferred to read my own copy aloud for everyone of them to hear. Both the plaintiff and the 1st defendant agreed that the contents of the agreement represent the instructions given to me by them. At that stage, the 1st defendant instructed his driver to go to the back of his car to bring a bag containing money. When the bag was brought, and the money was given to the plaintiff, the plaintiff and his friend he came with counted the money which was about seven hundred and something thousand naira and they said the money was Correct. I cannot remember the exact amount now. After the plaintiff and his friend had confirmed that the money was correct, they then executed the agreement. This is a copy of the agreement, which I drafted and which the plaintiff and the 1st defendant executed in my chambers. It is exhibit D in this suit. The document having been executed I gave a copy to the plaintiff. I also gave the original copy together with the title before the execution of exhibit D, the plaintiff never told me that he could not read or write and he did not ask me to interprete any word or expression in the agreement to him. The issue of interpretation never arose.”

It is evident from the foregoing that apart from his say-so, the appellant did not adduce any evidence at all to substantiate his claim that he was an illiterate person. In fact, his evidence in court points to the contrary; that he must be literate. In his evidence in chief, the appellant testified that he was a retired civil servant from the Governor’s office, and that he retired as a motor driver. During cross-examination, he replied that he was in the civil service for thirty years and seven months until he reached retiring age, and that he served 14 Commissioners in the State when he was in service. I find it incredible and therefore hard to believe that the appellant is illiterate – not a civil servant in the Governor’s office who, as he claimed, drove 14 Commissioners during his thirty years and seven months in service. From his own account of what transpired that day, I find it hard to also believe that he was a victim of undue influence, who had a “most unreasonable and unconscionable bargain foisted on him” as he wanted the court to believe.

Fraud is a matter with the implication of criminality and it is trite law that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt – see section 138 of the Evidence Act & U.T.C (Nig.) Plc. v. M.I.A. Ltd. (2003) 13 NWLR (Pt. 837) 291. In this case, the appellant claimed as follows in paragraph 41 (1) of his amended statement of claim-

“A declaration that the agreement made between the plaintiff and the 1st defendant on the 5th of September, 1995 in as much as it purports to be a Sales Agreement, is fraudulent, illegal, null and void and of no effect.

Particulars of Fraud

When the document in question was read to the plaintiff, who is an illiterate, the aspect relating to sale of the property as well as the sum of N780, 000. 00 was cleverly concealed from him.”

As to this claim, the learned trial Judge held as follows-

“The evidence of the plaintiff to the effect that the transaction between him and the 1st defendant, and which transaction is recorded in exhibit D, was a loan transaction and not a sales transaction and that what C. Aghojah, Esq., read out from exhibit D, before it was signed by the parties and their witnesses was that the 1st defendant loaned the money to the plaintiff and not that the plaintiff sold the house to the 1st defendant impress me as tissues of lies.” (Italics mine)

In my view, the learned trial Judge is absolutely light. The appellant did not adduce any evidence to prove his allegation that the agreement he signed that day was executed in a fraudulent manner. On the appellant’s argument that the learned trial Judge did not advert his mind to the fact that borrowers are usually “necessitous men who sign agreements almost always in desperation or in ignorance of the legal jargons inserted by the draftsman, or more still, because of not having the advantage of legal advice”, and that the respondents were both Urhobos, who took advantage of the appellant who is not Urhobo “to introduce obnoxious terms into the agreement”, I must say that these are asinine arguments that have no place in a legal brief, and can only be described as the futile grasp of straw by a drowning man.

Sentiments command no place in judicial deliberations – see Ezeago v. Ohaneyere (1978) 6 – 7 SC 171, & Kanno v. Kanno (1986) 5 NWLR (Pt. 40) 138. Besides, ignorance of the law as opposed to ignorance of the facts has never afforded any body an excuse; for everybody is supposed to know the law; the maxim is Ignorantia juris quod quisque scire tenetur excusat [Ignorance of the law which everybody is supposed to know does not excuse] – see U.D.U v. Kraus Thompson Orgs. Ltd. (2001) 15 NWLR (Pt. 736) 305. In my view, a counsel worth his salt should not be seen or heard whipping up tribal sentiments on behalf of his client. It will not and does not speak well of his practice and appellation as a learned gentleman. Be that as it may, the appellant also contended that the learned trial Judge erred in his use of section 151 of the Evidence in this case. The provisions of section 151 of the Evidence Act are to the effect that:

(i) If a man by his words or conduct willfully endeavors to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such statement did not exist at the time;

(ii) If a man either in express terms or by conduct makes a representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of affairs;

(iii) If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented. See Iga v. Amakiri (1976) 11 SC 1 at 12 relied on in Omoniyi v. U.B.A. Ltd. (2001) 5 NWLR (Pt.706) 240.

A careful look at the above situations in comparison to the circumstances of this case shows that the appellant is right, but only in the sense that section 151 of the Evidence Act has no relevance to this case, and should not have been applied to this case. But this error on the part of the learned trial Judge does not count for much; it had no effect at all on the decision of the learned trial Judge not to believe the appellant, which is the key factor in this appeal. It is trite law that it is not every error in a judgment that will lead automatically to its reversal; the error must be substantial, and must occasion a miscarriage of justice before an Appellate Court is bound to interfere – Osolu v. Osolu (2003) 11 NWLR (Pt. 832) 608 SC; Ohiwerei v. Okosun (2003) 11 NWLR (Pt. 832) 463 CA. In this case, the learned trial Judge just did not believe PW1, and he cannot be faulted for that.

It is the prerogative of the trial court to believe or disbelieve a witness, and evidence, which is credible and is effectively uncontradicted by any other evidence, is the kind of evidence a trial court usually accepts and acts upon, not evidence, which is found not credible or has no probative value. Credible evidence is evidence worthy of belief, and for evidence to be worthy of credit, it must not only proceed from a credible source but must be “credible” in itself, in the sense that it should so natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe it – see Agbi v. Ogbeh (supra). In this case, the learned trial Judge was right, in my view, not to believe the appellant. As he queried –

“The plaintiff who could not pay N120,000 a year or N10,000.00a month was to pay N780,000.00a year or N65,000.00 monthly when there is no evidence that within that one year between 5/9/95 and 5/9/96, the plaintiff had or entertained any hope of getting any money from any other source apart from his pension as a retired driver”.

Be that as it may, the appellant also argued that the learned trial Judge having believed that the appellant sold the house to the 1st Respondent, and having found also that the 1st respondent had been exercising a right of ownership, ought to have proceeded to inquire whether or not the sale complied the necessary statutory provisions that confers such right of ownership on the 1st respondent, which is the second issue for determination in this appeal, involving sections 22, 26 & 34 of the Land Use Act, 1978. Section 34(1) & (2) of the Land Use Act provides as follows –

(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person before the commencement of this Act.

(2) Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.

Section 22 of the same Act provides as follows:-

“It shall not be lawful for the holder of a statutory right of occupancy granted by a Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained”.

And section 26 thereof reads as follows –

“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void”.

The appellant submitted that the above provisions of the Land Use Act are mandatory and must be strictly complied with, citing Iragunima v. Uchendu (1996) 2 NWLR (Pt. 428) 30 at 52; Savannah Bank v. Ajilo (1989) 1 NWLR (Pt. 97) 305; & Union Bank v. Dare (2000) 9 WRN 110 at 109-110; (2000) 11 NWLR (Pt.679) 644. Furthermore, that the onus is on the 1st respondent who claimed to have bought and taken possession of the property to establish that all the statutory conditions precedent to having title/ownership vested in him have been satisfied, as opposed to the appellant who maintained that he did not sell his house, and that there was no iota of evidence before the trial court that the necessary Governor’s consent had been obtained before the purported transfer, which is fatal to the whole transaction.

On their own part, the respondents argued that learned trial Judge was not unmindful of the various provisions of the Land Use Act, when he held that all Statutory conditions precedent to the vesting of title of the house and premises in the 1st respondent had been satisfied, and that the case of Savannah Bank v. Ajilo (supra) is d1stinguishable from this case, since in that case, the Supreme Court was not invited to determine whether a person who has statutory duty to seek Governor’s mandatory consent who failed or refused to do so can rely on his own default to declare that the transaction was invalid and evade his obligation under the said transaction.

Furthermore, that lower courts have been enjoined not to consider pronouncements of higher courts cited to them in isolation from the facts and circumstances of the case before them, citing Dr. C C v. C.I. Ude & Anor. (2002) 37 WRN 101; Adedeji v. National Bank & Anor. (1989) 1NWLR (Pt. 96) 212; & Ayo Solanke v. Abraham Abed & Anor. (1962) 1 ANLR 230; (1962) 1 SCNLR 371.

It was further submitted that there is no penalty specified in any of the provisions of the Land Use Act relied on by the appellant for his submission that the transaction between the appellant and 1st respondent is void; that when an enactment makes a contract void but does nor specify any penalty, such contract is not illegal, as the word ‘void’ can in the circumstances be interpreted to mean ‘voidable; and that it is voidable at the election of the person or persons for whose protection the specific provision in the enactment is made. It was further argued that such person or persons must, however, be capable of protecting themselves; that the provisions in sections 22 & 26 of the Land Use Act are made for the protection of the Governor of a State, and the Governor in the appropriate cases can protect himself by revoking any allocation like assignment, lease, mortgage or transfer of possession of any land over which statutory right of occupancy is granted or deemed granted; and that the word ‘void’ used in section 26 of the Land Use Act should therefore be interpreted as “voidable” at the instance of the Governor and not at the instance of any party to the said contract of assignment, lease, mortgage, etc., citing Solanke v. Abraham Abed & Anor. (Supra).

The respondent further submitted that the appellate courts have always frowned seriously at the morally despicable conduct of a party who after deriving benefits from a contract will turn around to say that he cannot fulfill his own obligations under the contract because it is void or invalid, and have always refused to declare such contracts void or invalid, citing Henrison Okechukwu v. Humphrey C. Onuorah (2000) 82 LRCN 3300; (2000) 15 NWLR (Pt.691) 597 & Adedeji v. National Bank & Anor. (supra). In the respondent’s view, the learned trial Judge was perfectly right when he held that the Deed of Transfer – exhibit D executed by the appellant and the 1st respondent is not invalid, null and void because the consent of the Governor was not obtained by the appellant before the said transfer of his house to the 1st respondent.

I have gone through the judgment of the lower court and contrary to the latter submission of the respondents, I find no reference therein to any of the provisions of the Land Use Act relied on in this appeal, and must point out that the learned trial Judge did not address the issue or make any finding on the issue of Governor’s consent, etc. In this regard, the appellant argued that the failure of the learned trial Judge to consider the relevant statutory provisions in relation to the transaction occasioned grave miscarriage of justice as his decision would not have been the same had he considered the relevant provisions and the decided cases referred to before him. This court was therefore urged to hold that all the relevant statutory provisions necessary to transfer the property – No. 18, Good Samaritan Road, Uselu, Benin City – to the 1st respondent have not been complied with, therefore the purported sale and transfer of the said property to the 1st respondent is null, void and of no effect, and the 1st respondent had no right to exercise acts of ownership in the manner he admitted to have done in respect of the property.

Now, this issue is easily resolved. The learned trial Judge found as a fact that the appellant did not use the said property as a security against any loan secured from the 1st respondent, but rather that he sold the house to the 1st respondent as stated in exhibit D, which they jointly executed.

I cannot and will not disturb that finding, as it is not my place to so do. What the law says, however, is that it is the overall intention of parties who executed an agreement and what that agreement is meant to be that is of paramount importance in circumstances such as these. Hence, the relationship of the parties is determined by law on a consideration of all the relevant provisions of the agreement see Hamidu v. Sahar Ventures Ltd. (2004) 7 NWLR (Pt. 873) 618. In this case, exhibit D reads as follows:-

“Now this agreement witnesseth as follows:

That in pursuance of this agreement and in consideration of the sum of N780,000.00 (Seven hundred and eighty thousand naira) purchase price paid by the purchaser to the Vendor the said sum of which the vendor acknowledges receipt, the vendor as beneficial owner hereby transfers his entire interest on the said parcel of land measuring 100-ft by 150-ft demarcated by – more particularly described in the application for change of name and re-approval dated 10/6/69 and approved on 12/7/69 by the Oba of Benin together with the building and appurtenance situated thereto to the Purchaser absolutely and free from any incumbrances.

The vendor covenants with the purchaser as follows:

(1) That he is the owner of the land and building herein conveyed that he has a good title to same and shall indemnify the purchaser for any loss suffered by the purchaser as a result of any defect to his title to the land and building herein conveyed or any part thereof.

(2) That he will/has delivered the following documents in respect of the said land and building to the purchaser:

(a) Oba’s approval dated 27/7/63 in the name of David Eghianruwa the vendor’s predecessor in title.

(b) Oba’s re-approval dated 12/7/69 in the name of the vedor herein.

(c) Building plan No. BDPA/Bc 8088 prepared by USSO & Sons and approved on 8/9/70.

(3) That he will obtain the Governor’s consent and make a proper Deed of Assignment in favour of the purchaser herein whenever he is called upon to do so by the purchaser.

(4) That he will put the purchaser into possession of the land herein conveyed on or before 4th of September, 1996”. (Italics mine)

Now, by virtue of section 22 of the Land Use Act, the holder of a right of occupancy alienating or transferring his right of occupancy must obtain the consent of the Governor to make the transaction valid. If he fails to obtain such consent, then the transaction is null and void under section 26 of the same Act – see Hamidu v. Sahar Ventures Ltd. (supra).

In other words, it is the person who seeks to alienate his property who has the duty to seek and obtain the consent of the Governor to the transaction – see Sosan v. H.F.P. Eng. (Nig.) Ltd. (2004) 3 NWLR (Pt. 861) 546; Amadi v. Nsirim (2004) 17 NWLR (Pt. 901) 111. The law is also clear that an agreement to sell land entered into before the securing of the Governor’s consent is not prohibited within the meaning of sections 22 and 26 of the Land Use Act 1978, and cannot therefore be null and void because the Land Use Act does not prohibit a written agreement to transfer and alienate land so long as such a written agreement is understood and entered into subject to the consent of the Governor – see Mainagge v. Gwamna (supra), & Agbabiaka v. Okojie (2004) 15 NWLR (Pt. 897) 503.

What this means is that exhibit D in this case, wherein the appellant covenanted to “obtain the Governor’s consent and make a proper Deed of Assignment in favour of” the 1st respondent “whenever he is called upon to do so” is valid even though executed before the Governor’s consent was obtained. More importantly, as the respondents rightly submitted, the appellant cannot take advantage of the fact that the said Governor’s consent had not been obtained and attempt to defeat a valid deal as this one he entered into – see Mainagge v. Gwamna (supra); Agbabiaka v. Okojie (supra); Hamidu v. Sahar Ventures Ltd. (supra). See also Amadi v. Nsirim (supra) where this court per Akaahs, JCA, stated as follows:-

There is no better way of describing the defendant’s conduct in this case than to say that it is fraudulent and unconscionable. Either as a weapon of offence or as a shield of defence, any plea by the defendant in seeking to nullify a transaction for lack of Governor’s consent is reprehensible when the responsibility of obtaining the consent rests with the defendant especially when consideration has passed. The party in delict should not be allowed to profit from his fraud.” (Italics mine) The end all and be all of the foregoing is that the appellant cannot be heard to complain that the Governor’s consent was not obtained before exhibit D was executed. Simply stated, it does not lie in his mouth to say that the transfer of the property in question was not properly perfected.

The appellant had sold his interest in the land to the 1st respondent and the effect of that sale is that all the rights the appellant had in the property have been transferred to the 1st respondent. Even though the learned trial Judge did not address this issue in his judgment, it is obvious from the foregoing that contrary to the argument proffered by the appellant, failure to so do has not in any way occasioned a miscarriage of justice, as his decision would have remained the same, with or without considering the above quoted sections of the Land Use Act relating to the transaction. On the last issue, I agree with the respondents that the learned trial Judge properly appraised and evaluated the evidence led in proof of the pleadings exchanged by the parties before him. This case was hinged on the credibility or otherwise of the appellant, and the credibility of a witness is a matter for a trial Judge, not an appellate Judge. The witness is seen by the trial Judge, while an appellate Judge reads the evidence of a witness from the record and is certainly not in a position to determine the credibility of a witness, because it did not have the opportunity of observing the demeanor of the witness, which is one vital way of assessing credibility – see Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381 SC, Seven-Up Bottling Co. Ltd. v. Adewale (2004) 4 NWLR (Pt. 862) 183. To attack the findings of fact by a trial court, the appellant must therefore show that the views expressed is wrong or perverse, or that the trial court failed to use or palpably misused its advantage of seeing the witnesses – see Awudu v. Daniel (supra). In this case, it is my firm view that the lower court made good use of its opportunity of seeing and healing the witnesses during the trial and did justice in this case and I so hold. This appeal lacks merit and is hereby dismissed. I make no order as to costs.

Other Citations: (2005)LCN/1776(CA)