Bello Ibrahim v. Hajiya Mami (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

This appeal is against the decision of the Kano State High Court in suit No. K/626/2008, delivered on 31/10/2012 by Hon. Justice A.M. Bayero (now JCA) wherein the learned trial Judge gave judgment in favour of the plaintiff (now 1st respondent) and granted the reliefs sought against the defendants (1st defendant, now appellant).

At the trial court, the plaintiff had sought the following reliefs:

1. A declaration that there was no sale transaction between the plaintiff and the 2nd and 3rd defendants in respect of the house at Farm Centre, Kano, covered by certificate of occupancy No. LKN/RES/84/69;
2. A declaration that the purported sale transaction in respect of the house at Farm Centre, Kano, covered by certificate of occupancy No. LKN/RES/84/69 involving the 1st defendant and the 2nd or 3rd defendant is null and/or void and of no effect whatsoever;
3. An order setting aside the registration of the assignment of the interest in the house at Farm Centre, Kano covered by certificate of occupancy No. LKN/RES/84/69 in favour of the 2nd and/or the 3rd defendants;
4. A declaration that the said assignment is null and void and of no effect whatsoever;
5. A declaration that the plaintiff is entitled to the ownership and possession of the house situate at Farm Centre, Kano covered by certificate of occupancy No. LKN/RES/84/69;
6. Damages;
7. Cost of instituting the action. (See pages 122 and 123 of the records of appeal).

Initially the plaintiffs suit was against 3 defendants- 1st to 3rd defendants, but the name of Alhaji Auwalu was joined as 4th defendant as per a motion ex parte by the plaintiff, to amend his writ of summons. (The said Alhaji Auwalu later became 3rd defendant). The 1st defendant (now appellant) had filed a defence, denying the claim of plaintiff (his mother-in-law). The 2nd and 3rd defendants and the 4th defendant filed their separate pleadings, (2nd and 3rd defendants filing joint defence).

After hearing the case and considering the evidence and addresses of counsel, the trial court gave judgment to plaintiff (now 1st respondent), granting the entire reliefs, sought.

Appellant filed notice of appeal on 13/4/2012 (pages 213 to 219 of the records). He filed amended notice of appeal on 29/3/2022, with 9 grounds of appeal. He also filed brief of argument on 20/4/2022, which was deemed duly filed on 22/9/2022. He distilled 4 (four) issues for the determination of the appeal, as follows:

1. Whether the decision of the trial court is not perverse and the trial court lower court was right in granting the entire reliefs sought by the 1st respondent. (Grounds 1 and 6).
2. Whether the lower court had properly evaluates (sic) the evidence adduced by both parties prior to making findings of facts. (Grounds 2, 3, 4 and 5)
3. Whether non-consideration of the defence proffered by the appellant and holding that the appellant is personally liable to the 2nd and 3rd respondents is wrong and constitute (sic) a breach of the appellants right to fair hearing. (Grounds 8 and 9);
4. Whether the trial court has jurisdiction to proceed against the 4th defendant (3rd respondent) and also to entertain the entire suit (Ground 7)

The 1st respondent filed brief on 13/9/2022, which was deemed duly filed on 22/9/2022. He adopted the issues as distilled by appellant for the determination of the appeal.

Arguing the appeal, on 23/1/2023, the counsel for appellant, Laminu Bala, Esq. who settled the brief, answered the issue one in the affirmative, saying that the decision of the trial court was perverse, having regards to the claims of the 1st respondent, state of pleadings and evidence, vis-a vis, settled principle of law on perverse decisions.

He cited the case of James v. INEC (2016) 18 WRN 45; (2015) 12 NWLR (Pt. 1474) 5 on the meaning of perverse decision; that it occurs where a court took account of matters it ought not to, or shut its eyes to the obvious; He also relied on Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360, Udengwu v. Uzuegbu & Ors. (2003) 34 WRN 1; (2003) 13 NWLR (Pt. 836) 136, Mamonu & Anor. v. Dikat & Ors. (2019) 25 WRN 1; (2019) LPELR 46560 SC.

Counsel said that ignoring a fact or evidence is one of the essential elements of a perverse decision.

He argued that it was on record that the appellant had averred that he sold the two houses with the instruction of the 1st respondent and used the proceeds of the sale and purchased houses, plots and tipper lorry for the 1st respondent, who acknowledged receipts of same pages 128 – 132 of the records; he said that appellants averments, thereto, were not denied; that paragraphs 15, 25 and 30 of the statement of defence, were not denied; that the trial court ignored all that, and the oral evidence, thereof, as well as the admission by the 1st respondent, to the effect that she took some landed properties from appellant, through the Police – including tipper lorry, house at Sharada and plot at Nassarawa State.

He argued that the court had a duty to consider all the evidence before it; that it failed to consider the evidence by appellant. Counsel relied on Mogaji v. Cadbury (Nig.) Ltd. (2004) 23 WRN 54; (1985) 2 NWLR (Pt. 7) 393.

He said that the perversity of the decision also showed, when the trial court awarded the sum of N9,000,000.00; 15,000 UAE Dirhams and N1,900,000, in favour of 1st respondent against appellant; that the appellant had denied receiving the sum of N6,500,000 for the purchase of House at Gadon kaya and the sum of 15,000 Dirhams or any other sum for the renovation of the House at Farm Centre; he said that the law places burden on he who asserts, to prove his assertion and so it was the duty of 1st respondent to prove her said claims, but she failed.

Counsel said that 1st respondent showed characteristic of forgetfulness, that she therefore failed to prove her claim; that it was apparent, from the evidence of DW1, that he used the proceeds of the House at Gadon kaya, which was sold on the instruction of 1st respondent, and purchased the House at Farm Centre; that the proceeds of sale from the House at Farm Centre was also used in the purchase of landed properties and a tipper lorry for the 1st respondent, which she acknowledged receipts as per exhibits 1E and 1F. Counsel said that evidence was not challenged and DW1 was not cross-examined on it. He relied on American Cyanamid v. Vitality Pharmaceutical Ltd. (1991) 1 NWLR (Pt. 171) 15 on failure to cross-examine a witness.