Umaru Amadu Mainama V. Alhaji Tukur Dambatta (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal is from the judgment of the High Court of Justice Kano sitting in Kano (the court below) whereby it awarded ownership of a house situate at No. 112 Fagge “B” Quarters Kano to the respondent (who replaced the original respondent as plaintiff at the court below) against the appellant (who replaced the original appellant as defendant at the court below), occasioning the appeal.

The essential facts of the case are that the original respondent bought house No. 112 Fagge “B” Quarters Kano from the two brothers, one Audu Garba and the appellant on 3. 12. 92 for N90, 000. Audu Garba, and the appellant derived title to the property from one Hajiya Aluwa on 8. 3.73. It was Audu Garba, the PW1, who bought the house for joint use by his brother, the appellant, and himself.

Because of incompatibility between their wives, they decided to sell the house to buy separate houses. The sale was evidenced by a sale agreement. It was done in the presence of witnesses. Audu Garba vacated his own portion of the house on 3. 12. 1992. The appellant refused to vacate the other part of the house.

The appellant alleged that he re-negotiated re-purchase of the portion of the house occupied by him from the respondent’s authorized agent. According to the appellant he made part payment for the re-purchase of the house. The appellant stated that he owed a balance of N45, 000 purchase price at the time the dispute went to court.

The court below found as facts that the respondent bought the disputed house in the presence of witnesses and paid the full purchase price of N90, 000 to the vendor. While the appellant, according to the findings of the court below, did not establish that he re-purchased the house from the respondent. The court below also found that even if the appellant re-purchased the house, his failure to pay the full purchase price made the sale transaction inchoate.

Based on the findings above the court below entered judgment for the respondent declaring him owner of the disputed house by purchase. The court below dismissed the counter – claim of the appellant. The court below also issued a permanent injunction restraining the appellant and his heirs/successors from interfering with the peaceful possession of the house by the respondent. Unhappy with the judgment of the court below, the appellant filed a notice of appeal with three (3) grounds of appeal on dated 17.6.03, questioning the judgment. In a brief of argument filed on 12.9.06, the appellant distilled these issues for determination (unedited)-

3.01 “Whether the trial court was right in holding that the only existing transaction was the 1st sale of house No. 112 Fagge “B” Quarters Kano to the 2nd Plaintiff.

3.02 Whether the trial court was right in refusing to accept and act upon the evidence of the defendant/appellant’s witnesses.

3.03 Whether the trial court acted judicially and judiciously in evaluating the evidence of the witnesses of the defendant/appellant.”

The first and second issues were argued together to the effect that the case of the respondent and the appellant at the court below was governed by the pleadings of both parties; that the appellant and the respondent were in agreement that the house No. 112 Fagge “B” Quarters, Kano, was jointly sold by the appellant and his brother, the PW1, to the respondent for the sum of N90, 000; that the counter – claim by the appellant had disclosed fresh facts which placed the responsibility on the court below to assess the case of both parties; that the court below shirked its responsibility by looking into the claim of the respondent, but neglecting the claim of the appellant; that had the court below considered the appellant’s case it would not have held that the only existing transaction was the first transaction between the respondent and the appellant and his brother; and that the appellant having proved the counter – claim on uncontradicted/uncontroverted evidence against the respondent, the court below should have entered judgment for the appellant on the counter – claim as owner of the disputed house by purchase and ought to have dismissed the respondent’s claim vide Obmiami Brick and Stone (Nig) Limited v. African Continental Bank Ltd. (1992) 3 SCNJ 1, Iriri and Ors. v. Erhuhubare and Anor. (1991) 3 SCNJ 1, Baba v. Nigeria Civil Aviation Training Centre and Anor. (1991) 7 SCNJ 1, Odubeko V. Fowler and Ors (1993) 9 SCNJ 185, American Cyanamid Company V. Vitality Pharmaceuticals Ltd. (1991) 2 SCNJ 42 and Onwuka and Ors. v. Omogu (1992) 3 SCNJ 98. It was based on the arguments above that the appellant urged that the first and second issues (supra) be resolved in his favour.

The appellant submitted on the third issue that the court below did not evaluate the evidence of the appellant and his witnesses judicially and judiciously which resulted in a miscarriage of justice. Therefore the court should evaluate the unevaluated evidence vide Ofondo v. Niweigha (1993) 2 SCNJ 73, Imah v. Okogbe (1993) 12 SCNJ 57; upon which the appellant urged for the appeal to be allowed and the judgment of the court below reversed in his favour.

The respondent’s brief filed on 28.12.06, identified this issue for determination-

“Whether or not the appellant proved by credible and admissible evidence that there was a sale transaction between the appellant and the respondent.”