CASE SUMMARY OF:
Mr. Lawrence Agugu v. Ramatu Buhari & Anor (2016) - CA
by NSA PaulPipAr
Mr. Lawrence Agugu
1. Ramatu Buhari (Substituted By Mrs. Fausat Modupe Buhari);
2. The District Head Wa Je Land Office, Kano.
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Ibrahim Shata Bdliya, J.C.A.
* FOR THE APPELLANT
- Uzuegbu Esq.
* FOR THE RESPONDENT
- Abere Esq.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
This is an appeal against the judgment of the Kano State High Court (the lower Court) delivered on the 8th day of June 2010 by BAYERO, J. in suit No. K/168/2007. The events and or facts culminating to the appeal to this Court are simple and straightforward. The 1st respondent (the plaintiff) at the lower Court asserted that her property No. 13 Odutola Street, Sabon Gari Kano, was sold to the appellant (defendant at the lower Court) without her consent or authority. That the documents of title were fraudulently obtained to effect the transfer of title documents to the respondent.
On the other hand, the appellant asserted that the 1st respondent sold the house to him and he paid for it whereby the title documents were given to him by the 1st respondent. That thereafter, he took possession of the house and was collecting rents when the 1st respondent instituted an action against him at the lower Court denying selling the house to him.
Pleadings were filed, issues joined and the matter proceeded to trial. After the evidence of witnesses have been taken, and addresses of learned counsel to the parties, the learned judge of the lower Court delivered his judgment on the 8th of June, 2010, granting all the reliefs sought by the 1st respondent.
Dissatisfied with the judgment of the lower Court, he appealed to this Court.
1. Whether the learned trial judge was not wrong when he failed to dismiss the 1st respondent's claims having regard to the evidence adduced which are at variance with the pleadings.
2. Whether the learned trial judge of the lower Court properly evaluated the evidence adduced before it in arriving at his decision 3 granting the 1st respondent's claims?
3. Whether the learned trial judge was right in awarding the sum of six million naira (N6, 000,000.00) being general and special damages to the 1st respondent.
4. Whether the learned trial judge of the lower Court was right when he entered judgment in favor of the 1st appellant based on a wit of summons and statement of claim of 29th March 2007, which was amended?
HOLDING & RATIO DECIDENDI
1&2: ISSUES 1 & 2 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENTS.
i. A community reading of Paragraphs 8, 8(a), 9, 12(b) and (c) and Section 177 of the Penal Code, clearly established that the respondent had introduced the commission of the offence of fraudulent usage of documents in the transaction involving property, No. 13 Odutola Street, Sabo Gari Kano. The law is trite, an allegation of the commission of a crime, in criminal or civil proceedings must be proved beyond reasonable doubt as required by Section 135(1) of the Evidence Act, which provides that: "If the commission of crime by a party to any proceedings is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt."
ii. A perusal and examination of the averments in paragraphs 8, 8(a), 9, 12(b) and (c) of the Amended statement of claim filed by the respondent on the 30th of July 2008, has shown that the averments therein contained allegation of the commission of fraud which by Section 177 of the Penal Code, is a criminal offence. The averments aforesaid therefore has alleged criminality which must be proved beyond reasonable doubt in order to sustain the case of the respondent at the lower Court. Did the respondent discharge this burden? The respondent (as the plaintiff) did not testify to deny that she did not sell the property to the appellant nor signed the Deed of Assignment and the application for change of ownership in favour of the appellant. On the contrary the evidence before the lower Court clearly showed that the respondent signed the application for reissuance of new Certificate of occupancy, and applied for change of ownership of property No. 13 Odutola Street, Sabon Gari, Kano in favour of appellant.
iii. It is worthy to note that PW4 testified as the respondent's witness. Her testimony as recorded on pages 220-223 of the record of appeal are thus: "there was an application for change of ownership and it is signed by F. M. Buhari requesting the Local Government to change the ownership of No, 13 Odutola from her name to that of Lawrence Agugu." The evidence before the lower Court showed that the respondent swore to the affidavit of loss of the certificate of occupancy which she sought for the re-issuance of a new certificate of occupancy. These pieces of evidence have not been controverted because the respondent did not testify as a witness at the trial. The burden of proving the allegation of fraudulently obtaining documents to transfer the property No. 13 Odutola Street, Sabon Gari, Kano to the appellant was on the respondent, not on the appellant having regard to the nature of the claim that the property was sold by unknown persons fraudulently without the consent or authority of the respondent. She was a vital witness, whose evidence was vital to the just determination of the dispute before the lower Court. Her failure to testify at the lower Court was therefore fatal to her claim.
3. ISSUE 3 IS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. What is more, the claim of the respondent at the lower Court is for N10, 000,000.00 as special and general damages. It is a lump sum for both types of damages. The respondent in his claim has not specified as to what sum is for special damages, and what is for general damages. In other words, the claim for damages is vague. No evidence proving strictly the special damages. The law is settle, where damages have been awarded which have not been supported by cogent and credible evidence, such an award cannot be sustained on appeal.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I agree with learned counsel to the appellant that a statement of claim which has been amended is no longer alive in the proceedings of the Court. What is alive and valid is the amended statement of claim. This position of the law has been stated in the cases of Osho v. APC (1998) 6 SCNJ P. 139 @ 151 and Amanambu v. Okafor (1966) 1 All NLR P. 205. But the learned trial judge referred to the amended statement of claim on page 253 of the record of appeal as the pleadings and the evidence led in support of same that was being considered in arriving at the decision of the lower Court. Though the statement of claim on page 25-31 of the record of appeal ought to have been marked "Amended Statement of Claim", the Court knew and acted on same, not on the statement of claim that was dated and filed on the 29-03-07, which can be found on pages 58 of the record of appeal.
Section 177 of the Kano State Penal Code Provides: "177. Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or Instrument, which purports to transfer or subject to any charge any property or any interest therein and which contains any false statement relating to the consideration for such transfer or charge or relating to the person or persons for whose use or benefit it is really intended to operate shall be punished with imprisonment for a term which may extend to two Years or with fine or with both."
Section 177 of the Penal Code, there must be evidence establishing the following: (a) that the accused signed, executed, or became a party to the deed or instrument. (b) that the purpose of the document was to transfer, or to subject to a charge, the property or any interest in question. (c) that the document contained a false statement relating to the consideration or relating to the person for whose use or benefit it was really intended to operate; and (d) that the accused acted dishonestly or fraudulently.
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An appellate Court can and is entitled to reframe the issue or issues formulated by a party or parties in order to give it precision and clarity if it appears that they are awkward or not well framed.Â The purpose of reframing issue or issues is to achieve a just and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the ground or grounds of appeal, the opposite party cannot complain. - Bdliya, J.C.A. Agugu v. Ramatu (2016)
In the evaluation of evidence, the trial judge has to consider or give due regard to, among other things the following: (i) Admissibility of the evidence; (ii) Relevancy of the evidence; (iii) Credibility of the evidence; (iv) Conclusiveness of the evidence, and; (v) probability of the evidence in the sense that it is more probable than the evidence of the other party (vi) Finally, the trial judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other. - Bdliya, J.C.A. Agugu v. Ramatu (2016)
The law is trite, an appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following: (a) where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or (b) where the trial Court fails to make finding of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or (c) where the trial Court gives an unfair treatment on the evidence of the parties before it. - Bdliya, J.C.A. Agugu v. Ramatu (2016)
The end of this brief.
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