Madam Sarah Oscar & Anor V. Mallam Mansur Aliyu Isah (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kaduna State, holden at Kaduna delivered on 28/7/2006 in Suit No. KDH/KAD/498/2003 commenced by one Mallam Aliyu Isah as the Plaintiff against the two appellants as the defendants and for the reliefs endorsed on the writ of summons filed on 18/7/2003 and averred in paragraph 8 of the statement of claim filed on 17/10/03 as follows:-

1. A DECLARATION that by virtue of an agreement dated September 14, 2002 the first defendant transferred to the Plaintiff, all her interests, rights and titles in the one and a half rooms in the property known and situate at No. 22 Yanbanga Road, Ungwar Shanu, Kaduna for valuable consideration.
2. A DECLARATION that the action of the first defendant in purportedly selling or transferring the said rooms to the second defendant in November 2002 was illegal, null, void and of no effect.
3. AN ORDER setting aside the purported sale of the said rooms by the first defendant to the second defendant.
4. AN ORDER for perpetual injunction restraining the defendants, their servants, agents and or privies and/or any person acting with or on their direction or authority in any way or manner what so ever from enforcing the said judgment against the Plaintiff by entering or in any way taking possession or laying any claim to the said rooms or any portion of it.

The defendants (who are now appellants) filed an Amended Joint Statement of Defence and Counter Claim and in paragraph 10 thereof they sought the following by way of counterclaim:-

a. 1st Defendant counter claim for her legal expenses in the sum of N80,000.00 (Eighty Thousand Naira) and

b. N120,000.00 as damages for loss of earnings.

c. The 2nd Defendant counter claim for a sum of N25,000.00 (Twenty five thousand Naira) as damages for incurring legal expenses.

After hearing the parties and their witnesses as well as addresses by their counsel, High Court of Kaduna State (now called the trial Court) granted the reliefs sought by the respondent and dismissed the counter claim of the appellants thus prompting this appeal which was commenced by the Notice of Appeal dated 29/7/2006 with 5 grounds of appeal, and in the Amended Appellants’ Brief of Argument settled by Tajudeen Oladoja, Esq. and filed on 2/7/13, the following issues were formulated for determination;

1. Whether having regard to the respondents’ state of pleading and the evidence adduced in support thereof, it was proper for the trial court to have held that the respondent proved his case against the appellants.
2. Whether the trial court properly evaluated the facts pleaded by the 1st Appellant and the evidence adduced in support thereof in relation to the issue of duress properly raised before it as regards Exhibit B before it concluded that the 1st Appellant was not under any duress when she signed the same.
3. Whether having regard to the facts and ratio decidendi of the case of MBA PAREGH BIYO v. MRS. VICTORIA AKU [1996] 1 NWLR (5) (Pt. 422) PAGE 1, it was proper in law for the trial Court to have relied heavily on same to decree in favour of the respondent.

The Respondents’ Amended Brief of Argument settled by Mas’ud Alabelewe Esq. of Counsel was filed on 21/8/13 with the following issues set down for determination;

1. Whether by virtue of the evidence on record as well as exhibits A & B, there is a valid and enforceable contract of sale made between the first appellant and the respondent.
2. Whether the first appellant legally proved duress in respect of exhibit B before the lower court.

The present respondent Mallam Mansur Aliyu Isah was by the order of this court substituted for Mallam Aliyu Isah the plaintiff at the trial Court who was reported to have died on 16th March, 2012.

At the hearing of the appeal, the parties were represented by their respective learned counsel who adopted the briefs of argument filed. The Appellants’ Counsel, Tajudeen Oladoja Esq. urged the court to allow the appeal while Mas’ud Alabelewe Esq. for the respondent urged that the appeal be dismissed.

I find that the two issues distilled by the respondent are within the issues formulated by the appellants which are more encompassing in the light of the grounds of appeal. This appeal will be determined upon the three issues set down by the appellants.

On the first issue which is whether it was proper for the trial court to have held that the respondent proved his case, the appellant submitted that cases initiated by writ of summons are fought on the basis of the pleadings and evidence, therefore any evidence led on unpleaded fact goes to no issue, citing ANYAWU V. IWUCHUKWU [2000] 15 NWLR (Pt. 692) 721.

It was submitted also that a litigant must be consistent with his case; GBADAMOSI V. KABO TRAVELS LTD. (2008) 8 NWLR [Pt. 668] 243. The learned counsel submitted that by virtue of Order 24 Rule 3(2) of Kaduna State High Court (Civil Procedure) Rules 1987 (then applicable), it was necessary for the respondents to file and serve a Reply to the appellants’ amended statement of defence and counter claim; A.C.B. V. EAGLE SUPER PACK NIG. LTD. (1995) 2 NWLR (Pt. 379) 590; MAKANJUOLA V. AJOLORE (2000) FWLR (Pt. 8) 1328 were cited.

It was submitted that the two ways to rightly sell, validly acquire and legally transfer land in Nigeria are under customary law with each having its own peculiarities that must be complied with and so the nature of the sale transaction must be pleaded clearly; FOLARIN V. DUROJAYE (1988) 1 NWLR (Pt. 70) 351; ADEDEJI V. OLOSO [2007] 5 NWLR [Pt. 310] 325; BURAIMOH VS. KARIMU (1999) 9 NWLR (Pt. 618) 310.