United Bank for Africa Plc. V. Alhaji Ibrahim Mustapha (2003)
LawGlobal-Hub Lead Judgment Report
IFEYINWA CECILIA NZEAKO, J.C.A.
On the 27th of February, 1998, Bdliya, J. sitting at the High Court of justice, Borno State of Nigeria had delivered judgment in an action for specific performance of a contract of auction sale in favour of the plaintiff in the court below. He also awarded the alternative claim, being of the purchase price, damages and interest. The defendants have appealed to this court on 3 grounds. They are the appellants herein and the plaintiff is the respondent.
Parties to the appeal exchanged briefs of argument. The appellants’ brief was filed on 23/10/2000. The respondent, having obtained leave of this court on 7/2/2001 to file his brief of argument out of time, and within 7 days from that date, did file the same on 8/2/2001.
At the hearing of the appeal, learned counsel for the appellants adopted their brief of argument and urged the court to allow the appeal. The respondent was not represented however, and this court deemed him to have argued the appeal relying on his brief of argument.
A brief statement of the facts of this matter will be helpful at this stage.
The claim at the court below filed by the respondent as appears in paragraph 21 of the statement of claim is as follows:-
(a) Specific performance of the sale by the public auction, by delivery to the plaintiff all documents of title to the said property and preparing a deed of assignment and taking such other steps necessary to perfect the plaintiff’s title to the property.
(b) In the alternative the plaintiff claims
(i) Refund of the purchase price = N35,000.00
(ii) 27% interest from the date of payment of the purchase price.
(iii) Refund of amount expended to repair the property = N60,000.00
(iv) 27% interest on the amount of repairs.
The appellants had filed a defence denying the claim together with a counter-claim. The counter-claim reads as follows:-
“9. The defendants counter-claim from the plaintiff, the sum of N150,000 for wrongful use or abuse of legal process against the defendants.”
The respondent filed a reply to the statement of defence and defence to the counter-claim. Three witnesses, P.W.1, P.W.2 and P.W.3 having testified for the respondent and two, DW.1 and DW 2 for the appellants, counsel for both parties addressed the court, which thereafter delivered a considered judgment.
In his judgment, the learned trial Judge found for the respondent and ordered as follows:-
“The defendants are hereby ordered to prepare all documents required for the transfer of the interest in the said house to the plaintiff and hand over to him all title deeds in respect of the said house immediately, or
in the alternative as claimed by the plaintiff:
(i) Refund the purchase price of N35,000.00
(ii) Pay interest of the amount of 27 1/2 on the sum of N35, 000.00 from the date the said sum was paid to the defendant up to the date of this judgment.
(iii) Refund the sum of N60,000 money expended by the plaintiff per exhibits E1-E5. The contention of learned counsel for the defendant that the said exhibits E1-E5 are inadmissible and of no evidential value is not tenable. The evidence on the said expenses incurred in renovating the house are based on paragraph 18 of the statement of claim. They are not irrelevant as submitted by learned counsel.
(iv) 27% interest on the said sum contained on exhibits E1-E5 from the date of incurring the expense to the date of this judgment. The alternative order is at the option of the plaintiff.”
The court dismissed the counter-claim of the appellants as misconceived. What gave rise to the claim in the first instance was an auction sale of mortgaged property conducted by an auctioneer appointed by the appellants.
The mortgagor was alleged to have defaulted in the payment of the mortgage sum. The bank/mortgagees i.e. the appellants, instructed its auctioneer to sell at a reserve price of N199,000,the sale being subject also to approval by the appellants.
The auctioneer sold to the respondent said to be the highest bidder at N35,000 instead of N199,000 as instructed by the appellants. This he collected and deposited in the Maiduguri Branch of the Bank.
The appellants stated that the auctioneer had not sold at the price he was instructed and did not approve the sale. They refused to deliver possession of the Certificate of Occupancy (C. of O) of the property to the respondent.
The action at the court below was to enable the respondent obtain possession of the C. of O from the appellants or in the alternative, a refund of the sale price together with damages and interest.
The brief of argument filed by learned counsel for each party to the appeal has exhibited various issues for determination, distilled from the 3 grounds of appeal.
The appellants’ issues formulated from grounds 1, 2 and 3 respectively are set out thus:-
(1) Whether the trial Judge evaluated the evidence before the court before he took as established, as a fact that the plaintiff, was an illiterate in English Language and to reserve price.
(2) Whether the trial Judge rightly considered and awarded the alternative claim having earlier granted the relief of specific performance.
(3) Whether the trial court’s award in the alternative claim with 27% interest is justified by law.
On his part, the respondent formulated 3 issues numbered 1, 2 and 3 stated to arise from grounds 1, 2 and 3 of the grounds of appeal respectively, thus:-
1.Whether on the evidence before the court, the trial court was justified in holding
(a) That the plaintiff was an illiterate
(b) That the plaintiff was not informed of the reserve price.
2.Whether the consideration of the alternative claim in this suit resulted in any miscarriage of justice or occasioned any injury to the plaintiff.
3.Whether the 27% interest awarded by the trial court in the alternative claim is not supportable.
The issues distilled by the appellants will be used for this judgment, merging however issues 2 and 3 treating them together as they both relate to the alternative claim which the appellants contend ought not to have been awarded the respondent by the court below.
Issue No.1: The appellants raise an issue which seems important.
The question whether the respondent was an illiterate or not, and whether he was aware or knew of the conditions of sale outlined by the appellants to their auctioneer or his attention was drawn thereto, is vital to the just determination of this matter. The case of both parties is woven around those conditions precedent for the sale by auction of the property in question. This is evident from their pleadings and evidence in court.
In his statement of claim, the respondent averred in paragraphs 3,4,7,10 and 12 as follows:-
Paragraph 3. The plaintiff who could not read or write was made to understand that a public auction sale of property No. 14 Adamawa Road, Bolori Layout, Maiduguri by United Bank for Africa Plc. as an unpaid mortgagee, would take place on the 28th of February, 1991.
Paragraph 4. The plaintiff states that on the 28th of February, 1991 at 9 a.m. he went to the property and met a large number of people waiting for the public auction.
Paragraph 7. The plaintiff states further that he made a final bid of thirty-five thousand Naira (N35,000.00) which was the highest bid and was accepted by the auctioneer.
Paragraph 10. The plaintiff sates that after the payment and the completion of the above formalities the auctioneer and the bank official took him back to the property opened the door and put him into possession as the purchaser and new owner of the property.
Paragraph 11. The plaintiff further states that on the same date 28th February, 1991, the auctioneer gave him a copy of a letter he wrote to United Bank for Africa, Biu Branch to release to him original certificate of occupancy No. BO/635 which covers the property. The plaintiff will rely on the auctioneer’s letter at the trial of this suit.
Paragraph 12. The plaintiff avers that he personally or by his agent went to the Biu branch of the bank to demand the release of the certificate of occupancy several times but was given one lame excuse or another for the bank’s failure to hand over the original documents.
The appellants in their statement of defence averred in relevant paragraphs as follows:-
Paragraph 3. The defendant denies paragraphs 3, 4, 5, 6, 7, 8 and 9 of the statement of claim and in answer to the paragraphs the defendant avers as follows:-
(a) That the property located at Plot No. 14 Adamawa Road. Bolori Area, Maiduguri was mortgaged to the defendant’s branch at Biu as collateral for loan granted one Alhaji Inuwa Ali.
(b) That When the loan became repayable the said Alhaji Inuwa Ali defaulted and the defendant head office, Lagos instructed a licensed auctioneer Alhaji Lawan Aliyu of Dutsenma Street, Tudun Wada, Kaduna to sell the property. The instruction as given by the defendant’s head office was contained in a letter of instruction with reference number LRU/90/ABOM dated 12th November, 1990 with condition guiding the sale of the property clearly stated from A to H, and one of these conditions include the defendant’s reserve price of N199,000.00 in which the said property would be auctioned.
(c) That on the 24th January, 1991 Alhaji Lawan Aliyu instructed Alhaji Mohammed Salihu to act as his agent to execute the said auction which he also instructed him to strictly abide with condition guiding the sale of the property as contained in the defendant’s letter with reference No. LRU/90/ABOM dated 12th November, 1990 which clearly explains that the sale of the property is subject to the consideration and approval of the defendant’s head office and at their absolute discretion which was also clearly written on the notice of sale by public auction pasted on the said property on the 28th February, 1991. The defendant shall rely on the letter of instruction with reference No. IRU/90/ABOM dated 12th November, 1990 and also notice of sale by public auction printed and pasted on the 28th February, 1991 during the trial of this suit.
(d) That on the 28th February, 1991 Alhaji Mohammed Salihu, the auctioneer wrote a letter to defendant head office with a copy of the letter sent to defendant’s branch office Biu for information informing the defendant the highest bidder was in person of Alhaji Ibrahim Mustapha who bidded N 35,000.00 and paid same for the property. Meanwhile, the auctioneer had collected the said N 35,000.00 and paid in the amount to the defendant’s branch office Maiduguri for onward transmission or remittance to the defendant’s branch at Biu.
(e) The defendant head office having received the auctioneer’s letter immediately replied him on the 20th March, 1991 that the consideration of N35,000.00 has been rejected and therefore not acceptable by the defendant. The head office advised further in the letter to the auctioneer that he should note that the reserve price of the said property is N199, 000.00 as contained in the letter of the instruction and that he should sell the property at the reserve price given to him by the defendant.
(f) The defendant’s head office instructed the defendant branch at Biu to return the sum of N35,000.00 deposited to the auctioneer and the said amount has since then been returned to the auctioneer and he has acknowledged receipt.
The defendant shall rely on the acknowledgement paper or receipt given to the defendant by the auctioneer for the return of the N35,000.00 during the trial of this suit. The defendant will also rely on all the document referred to in this statement of defence and also on all other documents relating to and in any way connected with the defendant’s defence against the plaintiff at the trial of the suit.
(g) The defendant say that at time the bidding and payment of the N35,000.00 was made to the auctioneer by the plaintiff, no staff of the defendant was present. The instruction to auction the property was direct from head office of the defendant to the auctioneer and the defendant branchs at Maiduguri and Biu had no business in the sale of the property.
paragraph 4. The defendant denies paragraph 10 of the statement of claim in answer to the said paragraph 10 says if at all the plaintiff was given possession of the property by the auctioneer, it was done contrary to the laid down instruction given to the auctioneer by the defendant concerning the sale of the property.
Furthermore, the defendant states that no official of the defendant was mandated or nominated to assist the auctioneer in the sale exercise and therefore put the plaintiff to strictest proof of the allegation in paragraph 10.
Paragraph 5. The defendant denies receiving any letter from the auctioneer instructing the defendant’s branch at Biu to release to plaintiff the original certificate of occupancy No. BO/635 which covers the property. The Biu branch of the defendant did not instruct the auctioneer to sell the property the subject matter and therefore has no connection with the auctioneer as to warrant the auctioneer demanding for the release of the original certificate of occupancy to the plaintiff.
Paragraph 6. The defendant denies paragraphs 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the plaintiff’s statement of claim and thereby put the plaintiff to strictest proof thereon. Furthermore, the plaintiff was not put into possession of the said property by the defendant or its official, and so whatever alleged expenses made on the property to improve it was done at the plaintiff’s peril as he was not authorised either in written form or by consent to carry on any improvement on the said property. The defendant says that the sale of the property was subject to approval from the head office and until such approval was conveyed, the defendant branch at Biu, has no light to release the original Certificate of Occupancy No. BO/635 to the plaintiff.
The respondent joined issues with the appellant upon their statement of defence. He averred in his rely to the statement of defence thus:-
Paragraph 4. The plaintiff avers that he is an illiterate that he can neither read in English nor in any other language and avers further that he neither saw any notice nor were any conditions of sale brought to his attention nor explained to him by any person, and such he was not bound by the alleged conditions of sale (if any).
Paragraph 6. The plaintiff states that to date neither the bank nor anyone else has ever informed him that his purchase of the property was rejected nor was the purchase price ever refunded to him (nor was he ever informed such refund would be made.)
Paragraph 7. The plaintiff says that his solicitor’s letter to the defendant in 1991 and 1996 were not replied to and his personal visits (or those of his representatives) to the Biu branch of the defendant between 1991 to 1996 never elicited such information.
Paragraph 8. The plaintiff avers that the defendant has slept on its rights and the plaintiff pleads the maxim that equity aids the vigilant and not the indolent or alternatively the maxim that he who comes to equity must come with clean hands.
Paragraph 9. The plaintiff avers that to date the purchase price is with the defendant and has been making use of it.
Apart from the pleadings of the parties, the thrust of the evidence led by the parties also demonstrates the relevance of this question relating to the condition precedent for the auction sale and the issue whether the respondent was made aware of it and formed a major base on which the plaintiff built his case. The appellants claim that there are conditions precedent, while the respondent denies knowledge of the same.
The evidence of the appellants’ DW1 is to the effect that the appellants had instructed the auctioneer to sell the property and there were conditions for the sale conveyed to him in a letter now exh. 1. The conditions set out a reserve price of N199,000.00, and the sale was subject to approval by the appellant bank.
The auctioneer pursuant to the instructions before the auction sale forwarded to the appellants, particulars of the auction sale set out on a poster under cover of a letter dated 30/1/92 tendered in evidence as exh. K.
DW2 Damboawa testified that he represented the bank at the auction sale, that before the sale, they arrived at the place of sale and at 10 a.m., he ordered the sale to commence. They the people came around and were briefed by the auctioneer. He said, Most of them could not speak English. I covered (sic) the auctioneer to read out and interpreted to them in Hausa. I was satisfied that the people knew what was taking place. The auction commenced. It was the poster that was pasted on the property to be auctioned was read out to the people. The poser is a printed document containing the conditions of sale.
DW2 then identified exh. K the poster. In his evidence, the respondent testified that he learnt about the auction sale from someone the same day it took place, being on 28/2/91. He went there at 9 a.m. and joined others who were waiting to take part and the sale took place. He was the highest bidder. He paid the price of N35,000.00 through the auctioneer and the bank staff Damboawa who issued him a receipt. He stated:-
“I cannot read and write in English language. I did not see any … at the scene of the auction. I did not see any other notice. No notice was read to me or brought to my notice at the auction sale”.
Under cross-examination, the respondent insisted that he could not read and write in English. He admitted signing exh. B. He said:
“It is true I signed exh. B. The house was sold to me. I just signed exh. B. I cannot read and write”.
Exh. B is the public auction sales record sheet dated 28/2/91 tendered by the respondent as a document given to him by the auctioneer and the appellants’ representative after the auction sale in which he was the highest bidder. It was signed by the auctioneer, the appellants’ representative Damboawa who is DW2 and the respondent, attesting to the sale by auction of the property in issue, being Plot 14, Adamawa Road to the respondent Alhaji Ibrahim Mustapha and his payment of the price of N35,000.00. From the judgment of the court examined against the relevant averments in the pleadings of the parties and their testimony set out above, it is observed that the learned trial Judge did not in fact review the evidence of both parties nor evaluate them before deciding to accept the facts as enumerated by learned counsel for the respondent in his final address to the court.
The sequence of the judgment clearly bears this out. It started with a narrative of the plaintiff’s case concerning the auction sale at which he was the highest bidder who paid N35,000 and the failure of the defendant to deliver the C of O. This was followed by a short narrative of defendants defence repudiating the sale for not being in accordance with their conditions of sale; then a reproduction of the plaintiffs claim, and all of his averments in his statement of claim, 4 paragraphs of the statement of defence and 7 paragraphs of the reply of the plaintiff to the statement of defence and counter-claim, counsel’s address reproduced. Then followed the court’s decision to accept the facts as enumerated by counsel for the plaintiff. The applicable law was considered, finally followed by the court’s decision and orders.
The form taken by the findings of the court from line 30 at page 37 of the records, a sudden descent to findings of fact without appraisal of the evidence, sparked off the complaint of the appellants that the learned trial Judge did not evaluate the evidence led on the issue of the respondent being an illiterate or not or was not aware of the conditions precedent to the auction sale. Counsel has submitted that the learned trial Judge had a duty to evaluate the evidence adduced, relying on Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt.95) 26 at 32, per Oputa, JSC.
There is some force in this argument. For, immediately after reproducing the final address of counsel for both parties, the learned trial Judge, without more proceeded to state and find thus:
“At this juncture, let me say that I am in full agreement with the issue formulated by Mr. K. U. Ogenyi, Esq, of learned counsel to the defendant. In my view, the determination of the issue would dispose of the action either in favour of the plaintiff or the defendant. Also there is no doubt, the established facts enumerated by Mr. Atijegbe, Esq, for the plaintiff, cannot be faulted. I agree in toto with him. So, having regard to what I have just said on the said issues together with the facts established and see if the case of the plaintiff can succeed or not.”
There was no review or appraisal of the evidence led by both parties nor any statement of his basis for accepting the facts as was stated.The learned trial Judge also found thus:-
“The auctioneer I hold was an agent of the defendant.
Did the auctioneer conduct the public auction as instructed. There are conditions stated on exh. 1 but the auctioneer sold … below the price stated by the defendant. Can the failure of the auctioneer to sell at the reserve price affect the validity of the sale to the plaintiff. The answer can be found in … Adebaje v. Cooau … in this instant case, the auctioneer did not inform the plaintiff that there was a reserved price. As pointed out by Mr. Atigegbe the reserve price was only known to the defendant and the auctioneer. For the plaintiff was not aware of such reserved price, he cannot be bound by it. See … so, in answer to the issue, I would say that the auctioneer was the defendant’s agent and though he did not strictly comply with the vendor’s instructions to sell the property to the plaintiff below the reserved price cannot invalidate (sic) the sale in view of the authority of Rainbow v. Hawkins (supra).
That the court below failed to consider the evidence of the respondent on this issue together with that of the appellants, is quite evident from the part of the judgment set out above. In particular, the learned trial Judge ought to have referred to and considered and weighed with the respondent’s evidence, the evidence of DW2, set out above, testifying to the explanation of the conditions of sale before the auction sale commenced. The evidence showed that what was explained was on the poster exh. K, explained in Hausa language, to the people, most of whom, he testified did not understand English.
Failure of the court to consider the evidence is in breach of the duty which the law places on the trial court.The point at this stage is that learned trial Judge, in coming to the conclusion on this issue, ought to have considered exh. K and the evidence of DW2 whose presence at the auction sale the respondent relied heavily on. He gave evidence in rebuttal of the respondent’s assertion that he was an illiterate and that the conditions precedent for the sale were not brought to his attention.
The trial Judge never even mentioned the evidence let alone considering it. Learned counsel for the respondent has not in his brief properly addressed this issue of failure by the trial court to evaluate the evidence by both parties. This is significant. All that counsel did was justify at pages 8-10 of his argument, the finding of the court, which is another matter, to be considered hereafter. It is trite law that a court of trial has a duty after hearing evidence from parties to a suit and their witnesses, to evaluate relevant and material evidence before him having regard to the pleadings of the parties Akibu v. Opaleye (1974) 11 SC 189. Proper appraisal of evidence is the function of trial court which cannot ignore or gloss over it. Again, civil suits are decided on the balance of probabilities, on the preponderance of evidence. This presupposes that trial court has had a consideration of all the evidence before it, led by both parties.
This connotes that the totality of the evidence, that is to say, the evidence of both parties is bound to be taken into account, and appraised so as to determine which evidence has weight and which has none. The credible evidence led by both parties weighed in an imaginary scale by the trial court, leads him to determine which party’s evidence has more weight and, it is the side which has more weight that succeeds. Woluchem v. Gudi (1981) 5 SC 291 also reported in (1979-81) NSCC 214. Where there are two competing assertions by parties before a court of trial, it is the duty of such a court to consider both assertions carefully and to decide on the balance of probabilities, which of the assertions the court will accept. Odutola v. Aileru (1985) 1 NWLR (Pt.1) 92 at 96 (per Kawu, JSC.), Omoregbe v. Edo (1971) 1 All NLR (Pt.1) 282.
In this case, the learned trial Judge, I am to state, with respect has not even identified and/or given any consideration to the evidence adduced by the parties before him as required by law.
I hold the view that the complaint of the appellant is well founded.
The effect of this will now be considered. For, it is trite law that it is not every slip in a judgment which will lead to the judgment being upturned. Rather to be fatal, it is only such slip as is so substantial, occasioning miscarriage of justice, or leading to the decision that had the lower court properly or correctly directed itself, it would have reached a different decision. See Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141 at 162 Nnaemeka Agu, JSC; Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt.518) 546 at 559; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 at 400-401 paras. E-B SC.
Learned counsel for the appellant has contended that failure to evaluate the evidence had led the trial court to the finding that it was an established fact that the plaintiff was an illiterate and not aware of any condition of sale and none was brought to his notice, when this was not supported by the evidence before the court.
In particular, he identified that there was evidence, and the respondent admitted under cross-examination signing exh. B. He then submitted that the fact he signed exh. B erases any presumption of illiteracy. He relied on Alimi Lawal v. G. B. Ollivant (Nig.) Ltd. Vol. 1 (1971) U.I.L.R. 37 at 38; Garuba Mediba v. Dorsu (1974) African Law Report (Commercial) 78 at 82. p.z. & Co. Ltd. v. Gusau & Anor. (1962) 1 All NLR 242 at 243. Counsel concluded that having signed exh. B in English language the plaintiff could not be said to be illiterate and had the trial court evaluated the evidence, he would not have found it established that the plaintiff was an illiterate.
He argued that this was a proper case for the Court of Appeal to intervene, and re-evaluate the evidence adduced by the parties.
He relied on Adegoke v.Adibi (1992) 5 NWLR (Pt. 242) 410 at 427 paragraph G-H per Wali, JSC.
He urged that the error of the learned trial Judge in the case being substantial, it is a proper case for the intervention of this court.
He cited Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 at 400-401, and finally urged us to hold that the respondent is not an illiterate.
For the respondent, his issue No. 1 addressed this matter extensively, urging that the trial court was justified in holding that the plaintiff was an illiterate. He submitted that it is a matter of evidence whether any person is an illiterate, citing Edokpaye v. Oke (1964) MNLR 53; Otitoju v. Governor of Ondo State (1994) NWLR (Pt.340) 518 at 529; S.C.O.A. Zaria v. Okon (1960) 4 FSC 220, (1960) NRNLR 34; UAC (Nig.) Ltd. v. Edems & Ajayi (1958) NRNLR 33.
He submitted that the burden of proof is on the person who claims to be an illiterate to prove it and that the respondent discharged the onus, copiously pleading that he was illiterate and the fact that he neither saw any notice nor his attention drawn to one or any conditions of sale and led evidence of the same. Counsel submitted that the appellant proffered no evidence on this.
I must state at once at this point, before proceeding further and get over one matter. This last submission is incorrect. The evidence of DW2 set out and referred to above is on this. This is what had been pointed out above as evidence not appraised, considered and evaluated along side the respondent’s evidence before the learned trial Judge proceeded to accept as a fact, the illiteracy of the respondent and that he neither saw any notice nor was one brought to his attention regarding the conditions of sale. It is incorrect that the evidence was not challenged.
Having disposed of this I now return to the argument of counsel for the respondent. On the issue of the respondent signing exh. B, he submitted that Otitoju v. Governor, Ondo State (supra) sets out the correct position of the law which is that the mere fact that a person is able to write or sign his name on a document does not mean that he is literate and the question of anyone being literate or not cannot be presumed, it being a matter to be established by evidence.
Counsel further submitted that in civil cases the onus of proof is discharged on the balance of probabilities or the preponderance of evidence. Mogaji v. Odofin (1978) 4 SC 91 at 93, Woluchem v. Gudi (1981) 5 SC 291 at 306-310. He concluded that the respondent’s evidence was positive and direct, credible and unchallenged and the court was right to hold that the respondent was illiterate.
So also, he further submitted, there was evidence before the court which justified the court’s decision that the respondent was not informed of any reserve price or any condition and exh. K only contained a condition that the sale was subject to approval by the mortgagee. On the call by learned counsel for the appellant to this court to intervene and re-evaluate the evidence, counsel for the respondent has submitted that no circumstance has arisen to justify that in this matter or because the appellant desired it. Counsel cited Ebba V. Ogodo (1984) 1 SCNLR 372, (1984) 4 SC 84, Okafor v. Idigo (1984) 1 SCNLR 481, Okpiri v. Jonah (1961) 1 SCNLR 174 at 176-177, Woluchem v. Gudi (supra), Balogun v. Agboola (1974) 10 SC III at 118-119.
He urged us not to interfere with the findings of the court below.
It is trite law that, where there has been proper appraisal of the evidence by the trial court, an appeal court does not embark on a fresh appraisal. On the other hand, where the complaint involves non-evaluation or improper evaluation or appraisal of evidence where the issue does not involve credibility of witnesses, the appeal court is in as much a good position as the trial court to evaluate the evidence. State v. Aibangbee (1988) 3 NWLR (Pt.84) 548, Okafor v. Idigo (1984) 6 SC 1. When parties in an appeal complain about non-evaluation or improper evaluation or appraisal of evidence by the trial court, the appeal court is often mindful of the rather strict limitations to its powers to reverse the trial court’s decision on issue of fact, particularly when the decision is one based on the quality and credibility of witnesses. See Woluchem v. Gudi (supra). See also Owners of Steamship Hontestroom v. Owners of Steamship Sagaporack (1927) AC 37 per Lord Sumner at pp. 47-48.
What emerges from all the foregoing is that, if the trial Judge considers only the case of the plaintiff without considering that of the defendant, or vice versa, he would be in grave error. For he ought to consider the totality of the evidence and base his decision on his consideration of the same. See Mogaji v. Odofin (1978) 4 SC 91.Applying the foregoing principles, to this matter, it is my view that this is an appropriate case for this court to evaluate the evidence led by the parties in the absence of evaluation of their evidence by the trial court.
The pleadings of the parties and their evidence set out earlier in this judgment, reverted to, show that the respondent clearly and unequivocally averred in his statement of claim and his reply to the statement of defence that he was an illiterate and the conditions of sale were not brought to his notice.
There is however the denial of the averment in the appellant’s statement of defence, which it must be pointed out, was only general in form. Then there is the evidence of DW2 earlier referred to. I hold the view that the learned trial Judge should have considered it to see if it would neutralise the respondent’s evidence that he was an illiterate and could not read the conditions. Significantly, this witness was not cross-examined.
Upon close examination of the pleadings of the parties, it is correct to state that the respondent copiously pleaded the relevant facts. On the part of the appellants, no facts were pleaded. There was only a mere traverse, a denial of paragraph 3 of the appellants’ statement of defence. No facts were pleaded therein giving rise to facts which DW2 testified to. The effect in my view is that, there being no pleadings in respect thereof, the evidence goes to no issue.
It looks like an after thought. Parties are bound by their pleadings.
A defendant is not in law entitled to rely upon a defence based on facts not stated in his statement of defence, without alleging them.
For, the opposite party is entitled to know what case he is coming to court to meet. See Yassin v. Barclays Bank D.C.O. (1968) NMLR 380 sic, Famuyiwa v. Folawiyo (1972) 1 All NLR (Pt.2) 11, Ekpenyong v. Ayi (1973) 1 NMLR 372, Sc. The respondent’s counsel cleverly did not bother to cross-examine DW2. One other significant point is that the appellants had in their statement of defence denied the presence of any bank’s representative at the auction sale. They have not as they ought to amended their statement of defence nor explained the contradiction occasioned by their production of DW2 to testify to the contrary and the fact that his signature appeared in exh. B. See Ekpenyong v. Ayi (supra).
The effect of the foregoing is that the pleadings and evidence of the respondent that he was an illiterate and had no notice or knowledge of the pre-conditions for the auction sale remains unrebutted. Let me state however that if the foregoing might have operated in the mind of the learned trial Judge, leading him to his decision, it does not justify his failure to examine and appraise the pleadings and evidence before him. For, a trial court must set out his appraisal, and thoughts in his judgment, in order to show how and why he came to his findings of fact and final determination of the issue before him.
Be that it may, the question whether a person is an illiterate or not is a question of fact, which cannot be presumed. It must be established by evidence, the burden of proof being on the party who asserts it. See Otitoju v. Governor of Ondo State (1994) 4 NWLR (Pt.340) 518 at 529 SC, Edokpayi v. Oke (1964) MNLR 53 SC.
In this case, the respondent did discharge that onus, having regard to his evidence before the court. In his evidence at page 14 of the records he asserted:
“I cannot read and write in English language. I did not see any notice at the scene of the auction, I did not see any other notice. No notice was read to me or brought at the auction sale”.
He reaffirmed that in cross-examination when confronted with exhibit B which he signed. He said:
“I cannot read and write in English. I just signed exhibit B, I cannot read and write”.
This is in line with his pleadings. On the part of the appellants, there were no averments of facts on this issue and, having regard to what has been stated about the evidence of DW2, they have not countered the respondent’s pleadings and evidence.
What that court below found regarding this issue is discernible from his finding that:
“… There is no doubt, the established facts enumerated by Mr. Atijegbe, Esq., for the plaintiff cannot be faulted. I agree in toto with him. (See page 37 of the records), and from the facts enumerated by the learned counsel which include this that –
‘(iv) The plaintiff is an illiterate in the English language, he was therefore not aware of any condition nor was his knowledge brought to any such conditions.
(see page 36 of the records).
The pleadings and the evidence considered above, prove the court below right after all, inspite of its failure in its duty to evaluate them in his judgment, before he decided that the respondent has been established to be an illiterate who had no knowledge of the conditions of sale and was not made aware of them.
On the contention of the appellants’ counsel that the respondent who signed exhibit B is presumed to be literate, that is not supported by the state of the law. See Otitoju v. Governor Ondo State (supra).
That Supreme Court decision has firmly established that the fact that a person has signed or written his name on a document does not prove him literate. See page 529 of the report paragraphs C-D per Kutigi, JSC. The learned Justice of the Supreme Court there stated the law thus:-
“The fact that the exhibit was signed in places and thumb printed in other places are not sufficient in my view to have rendered same null and void as contended by the appellants. In the first place, there was no evidence on record to show that the makers (appellants herein) were illiterates since there is nothing in law which prevents a literate person from affixing his thumb impression to a document, so also the mere fact that one is able to write or sign one’s name on a document does not mean that one is literate”.
In the light of all the foregoing, I am unable to agree with learned counsel for the appellants, Mr. Ogenyi’s latter submission that the fact that the respondent who signed exhibit b can be presumed literate.
The authority of Lawal v. G. B. Ollivant Ltd. reported in (1971) UILR (supra) which he relied on for that submission is not good law in view of the Supreme Court decision in the appeal arising from that judgment under the name G.B. Ollivant v. Lawal reported in (1972) 3 SC 124 at 135-136, and also Otitojus’s case (supra).
The submission of learned counsel for the respondent, Mr. Atijegbe in that regard is more in line with the state of the law and it is upheld.
What becomes clear and incontrovertible in the light of the foregoing and upon a detailed examination of the pleadings of the parties, their evidence and the judgment of the court below, is that although the learned trial Judge failed in his duty to evaluate the case of both parties before making his findings on this, no miscarriage of justice has been found upon my own appraisal of the pleadings and the evidence of both parties. This issue must be determined against the appellant and it is so determined. Ground one of the grounds of appeal is also dismissed.
Issues 2 and 3 are being considered together as they both relate to the alternative claim which the court below awarded, despite the fact that the learned trial Judge had awarded the claim of specific performance to the respondent earlier.
Learned counsel for the appellants has contended that it was wrong for the court below to award both claims made in the alternative. He relies on the case of Merchantile Bank Ltd. v. Adalma Tanker & Bunkering Services Ltd. (1990) 5 NWLR (Pt. 153) 747 at 768 and 769.
Also, Yesufu v. Kupper International (1996) 5 NWLR (Pt. 446) 17, (1996) 4 SCNJ 40 at 50.
Learned counsel for the appellant has pointed out that case is authority for the proposition that where a claim is in the alternative, the court should first consider if the principle claim succeeded and it is only if it found that the principal claim did not succeed that it would need to consider the alternative claim.
For the respondent, it has been conceded as submitted for the appellants, that where an alternative claim is made in addition to a main claim, it is only when the main claim has not been granted that the alternative claim can arise. U.B.N. Ltd. v. Penny Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 241 E-F cited. Other authorities cited in support include Merchantile Bank of (Nig.) Ltd. v. Adalma Tanker and Bunkering Services Ltd. (supra), earlier cited for the appellant.
Learned counsel for the respondent further conceded that by considering and granting the main and alternative claims. the trial court erred. Had learned counsel’s submissions ended at this point, this court would have, giving effect to the principles enunciated over the years by our highest courts on the treatment of alternative claims, set out in the authorities cited above and others to be set out presently, simply determined the issue at this point, without further ado. He did not stop there. He made other submissions, which will be dealt with later. Here, let me interrupt his submission to outline the law from binding authorities on this matter.
It is indeed settled law that in an action where an alternative claim is made in addition to a main or principal claim, it is only where the main claim has not been granted that the consideration and the granting of the alternative claim can arise. Both the main and the alternative claims cannot at the same time be granted.
(Italicising supplied for emphasis.) See U.B.N. Ltd v. Penny Mart Ltd. (1992) 2 NWLR (Pt.240) 228 CA at p. 241. In this case, Adio, J.C.A. clearly and succinctly put the principles thus:-
“Another thing, which was an error of law, about the relief granted in item (5), of the reliefs granted in the
judgment, is that it related to the alternative claim in the respondent’s amended writ of summons or amended statement of claim. Where an alternative claim is made in addition to a main claim, it is only where the main claim has not been granted that the consideration and the granting of the alternative claim can arise. Both the main claim and the alternative claim cannot at the same time be granted. See Nigerian Supplies Manufacturing Co. Ltd. v. Nigerian Broadcasting Corporation, (1967) 1 All NLR 35 and Merchantile Bank of Nigeria Ltd. v. Adalma Tanker & Bunkering Services Ltd. (1990) 5 NWLR (Pt 153) 747. It was, therefore, an error, in law, for the learned trial Judge to make the order in Item 5 of the orders in his judgment in addition to the orders in Items 1, 2, 3 and 4 of the said judgment. In any case, if the learned trial Judge was right (which is not conceded) in granting a perpetual injunction restraining the appellants from selling the property in question then the question of their selling it below a particular price could not arise”.
See also Merchantile Bank (Nig.) Ltd. v. Adalma Tanker & Bunkering Services Ltd. (supra) at p. 768 paragraphs A-B and page 769 paras. C-D (per Oguntade, JCA) Nwangwa v. Ubani (1997) 10 NWLR (Pt.526) 559 at 574.
In the case of Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300 SC the Supreme Court held that where the main claim of a party to a suit succeeds and is granted by the court, there will be no need for the court to consider any alternative claim (per Kutigi, JSC at p. 313, paras. G-H). It is important to realise that once the main claim succeeds, the consideration of the alternative claim no longer arises.
Counsel for the respondent did not stop at conceding that the learned trial Judge had erred. Rather, he further submitted that the error was mere technicality. He said that the court did not intend to give double benefit to the plaintiff. He affirmed that the respondent for his part was content with the main relief.
Learned counsel further argued that the breach by the learned trial Judge did not in any way damnify the appellants nor result in a miscarriage of justice.
He submitted that the consideration and granting of the alternative claim is a precautionary measure by the trial court by way of expressing its opinion in the alternative claim in case the Court of Appeal allows the appeal on the main claim and to avoid the necessity of sending the case back for retrial. Iheanacho v. Ejiogu (1995) 4 NWLR (Pt.389) 324 at 340 cited and also Adeyemi v. Bamidele (1968) 1 All NLR 31 at 38.
It seems to me that learned counsel for the respondent in this later part of his submission, smart as it is, failed to take into account the full import of the principle in the authorities which he himself cited. In UBN Ltd. v. Penny Mart Ltd. (supra). The dictum of Adio, JCA above quoted, did not mince words in describing the error in that case as an ‘error in Law’ where the court below granted Item 5 of the claim, which was an alternative claim.
In this case, it is not, in my view a matter of mere technicality as submitted for the respondent. It is a matter of an error in law.
With respect, learned counsel in his submission stopped short of the full of the principles in the dictum of Adio, JCA (supra). He left out the word in law, when he conceded thus in his brief of argument:-
By considering and granting the main claim and the alternative claim the trial court erred.
The decisions in Agidigbi v. Agidigbi (supra) and U.B.N. v. Penny Mart Ltd. (supra) have put to rest any argument and reason which counsel may devise to justify a trial Judge who, after the main claim before the court succeeds and he grants it, proceeds to consider and also grant the alternative claim. After granting the main claim, it is no longer open to the trial court to consider the alternative claim, not to mention of granting it.
It is even more fatal for a trial court, not only to consider the alternative claim after granting the principal or main claim, but also to grant it and then to leave it to the plaintiff to pick and choose afterwards which of the alternative grants the court has made he wishes to accept, as the learned trial Judge did in this case.
The justification which learned counsel for the respondent puts forward for the decision of the learned trial Judge that it is a precautionary measure is not acceptable and supported by the authorities above and those which he himself cited. Neither in the case of Adeyemi v. Bamidele nor Iheanacho v. Ejiogu did the courts decide the same issues as arose in this case in the court below. Those were claims in negligence and damages arising out of fatal accident.
In none of them did the issue of alternative claim arise.
I would in the premises determine issue No.2 in appellant’s favour.
This decision has also taken care of issue No.3 which challenges the award of interest by court below which is part of the alternative claim.
As the learned trial Judge ought not to have considered and determined the alternative claim after granting the main claim, the award of interest under the alternative claim also constitutes an error in law. Issue No.3 is also in favour of the appellant.
In conclusion, this appeal fails in part and succeeds in part.
That part of judgment of the learned trial Judge Bdliya, J., granting the respondent’s claim for specific performance is hereby affirmed.
The other part of the said judgment awarding the alternative claim for refund of purchase price with interest and N60, 000 special damages for expenses for repairs of the property in dispute is hereby set aside.
There will be N5,000.00 costs to the respondent against the appellant.
Other Citations: (2003)LCN/1411(CA)