The Respondent as Claimant in the High Court of Borno State claimed the following:
- A declaration that the Claimant is entitled to ownership/possession and interest in and over all the plot of Land laying and situate at pompomari Maiduguri, covered by statutory Certificate of Occupancy numbered BO/3322 to the exclusion of the Defendants.
- An order of perpetual injunction restraining the Defendants either by themselves, agents, servants and privies from further trespass on the plot of land covered by statutory Certificate of Occupancy number BO/3322.
- An order of this Honourable Court declaring that the Defendants are trespassers.
- One million Naira (1,000,000.00) as general damages
- Cost of the suit.
Pleadings were ordered and exchanged. At the trial, the Respondent called witnesses and in the course of his testimony tendered Exhibit A – the sale agreement between the Respondent and one Alhaji Uwaisu Karni to whom the land was allocated to by the Borno State Government on 20th March, 1984; Exhibit B – the Certificate of Occupancy issued in the name of the vendor Alhaji Uwaisu Karni; and Exhibit C – C8 – the Respondent’s Counsel letter to the Appellants.
At the end of the trial, the High Court found in favour of the Respondent and allowed the claims in part. The High Court also ordered the Claimant to refund the sum of Two Million Naira (N2,000,000.00) paid by the 1st Appellant to the Claimant.
The Defendant being dissatisfied with the judgment appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
- Whether the Respondent has discharged the burden of proving his claim to be entitled to the reliefs sought.
- Whether or not the trial Court properly evaluated the evidence adduced before it by both parties to arrive at a just decision.
APPELLANTS’ SUBMISSIONS
On issue 1, Counsel to the Appellants submitted that the Respondent’s root has to be established before any other subsequent proof in this appeal RUNEENGUNO v. EJEBE (2007) 11 M JSC pt 138 pg 154, REGISTERED TRUSTEES OF THE DIOCESE OF ABA v. NKUME (2002) FWLR pt 90 p 1270. Therefore, the Respondent had the burden to establish the sale by calling witnesses, i.e., the vendor who sold the land to him as pleaded in BUBA v. BUKAR (2003) FWLR pt 183 pg 38 which he failed to do.
Furthermore, Counsel submitted that where a person traces his root of title to a particular person, he must further prove title of that person. See of EYO v. ONUOHA (2011) All FWLR pt 574 pg 1.
On issue 2, Counsel submitted that the trial judge failed to evaluate material evidence placed before it. Counsel argued that the trial judge merely summarized the evidence of the witnesses and addresses of Counsel and proceeded to make its findings directly without considering each set of evidence given by the parties. Counsel further submitted that the High Court declared title of the land in dispute to the Respondent and neglected to avert his mind to the fact that the Claimant witnesses contradicted themselves in terms of the amount paid by 1st Appellant to SARS for the purchase of the land which contradiction was material. See FUBARA v. INEC (2010) All FWLR pt 544 pg 176.
Counsel further argued that by the conduct of both parties they had created a contractual agreement which was violated by the Respondent. The Appellants are thus bound to seek for an order of specific performance which is the order the trial judge ought to have made in the circumstances.
Counsel also reiterated that a Court cannot create a contract for parties but rather parties create same and are bound by it.
Concluding arguments, Counsel submitted that the Respondent was not in possession and as such cannot succeed in a claim for trespass.
RESPONDENT’S SUBMISSIONS
The Respondent on issue 1 argued that in proof of his claim he tendered Exhibit A, the sale agreement properly signed by the vendor and the buyer, the Respondent. Both parties had one witness attesting to their signatures. The Respondent also tendered Exhibit B, the Certificate of Occupancy No. BO/3322 of the original allotee, Alhaji Uwaisu Karni.
The Respondent further argued that the Appellants did not join issues with him on Exhibits A and B which he pleaded. Rather the 1st Appellant agreed that the Respondent is the owner of the disputed plot and even agreed to pay the Respondent four million, five hundred thousand naira (N4.5m) for the plot of land in dispute out of which he paid the sum of two million naira (N2,000,000) but did not pay the balance.
On issue 2, Respondent admitted the fact that the Appellant made payment of two million naira (N2,000,000) to SARS but denied collecting same. Respondent also denied that the 1st Appellant was given one month to pay up the remaining balance as there was no evidence showing same.
RESOLUTION OF THE ISSUES
Resolving issue 1, the Court noted that the 1st Appellant agreed that the Respondent is the owner of the plot of land in dispute. Based on that the Court held that by the admission of the 1st Appellant there was no longer any dispute as to the ownership of the disputed land. Citing BRITISH INDIA GENERAL INSURANCE COY NIG LTD v. THAWARDAS (1978) LPELR 3165 where Obaseki JSC held:
“Where a Defendant admits a fact in dispute by his pleadings that fact is taken as established and forms one of the agreed facts of the case. OKPARAEKE v. EGBUONU (1941) 7 WACA pg 53.”
Reliance was further placed on EHINLANWO v. OKE (2008) 16 NWLR pt 1113 pg 357, OLIYIDE LTD v. O.A.U. ILE-IFE (2018) LPELR 43711, VEEPEE INDUSTRIES LTD VS COCOA INDUSTRIES LTD (2008) LPELR 346 pg 1, PINA VS MAI-ANGWA (2018) LPELR 44198 pg 1., APC v. JOHN (2019) LPELR 47003 IBRAHIM KANO v. GBADAMOSI OYELAKIN (1993) LPELR.
On issue 2, the Court noted that the trial judge in evaluating the evidence before him found as a fact that the 1st Appellant had admitted that the Respondent was indeed the owner of the disputed land. That fact therefore needed no further proof. The trial Judge then went ahead to appraise whether the relationship between the parties could be described as contractual. On the issue, the Court held that the trial Judge rightly found that there was no purchase of the disputed property by the 1st Appellant as there was no purchase receipt or an agreement of sale or any fact that shows that such transaction did in fact take place. Citing ADEPATE v. BABATUNDE (2002) 4 NWLR pt 756 pg 99.
Going further, the Court held that although the law is that where part payment is made under a contract for sale of land, the contract for the purchase has been concluded leaving the payment of the balance of the purchase price outstanding to be paid, there was no evidence of any part payment in the instant case neither was there evidence of any agreement. Relying on GEGE vs NANDE (2006) 10 NWLR pt 988 pg 256. The Court held that the High Court was right to have refused to make an order of specific performance because where there is no contract of sale, the Court cannot order for specific performance.
HELD
The Court resolved both issues against the Appellant and dismissed the appeal.
Appearances:
- M. HUSSAINI, ESQ.
For Appellant(s)
- A. SANGEI, with him, M. S. UMAR and I. H. ABDULLAHI, ESQ.
For Respondent(s)
Source: The Nation Online