(2016) LPELR-43727(CA)

Transcription

1 ABDULLAHI & ORS v. NUR CITATION: ADZIRA GANA MSHELIA ADAMU JAURO In the Court of Appeal In the Jos Judicial Division Holden at Jos ON FRIDAY, 2ND DECEMBER, 2016 Suit No: CA/J/167/2015 RIDWAN MAIWADA ABDULLAHI 1. ALHAJI ISA ABDULLAHI 2. IBRAHIM YAU GALADIMA 3. ALHAJI BABA MUSAMI Before Their Lordships: Between And MAMMAN NUR - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing "It is to be noted that the law is trite that where a counsel deliberately fails to avail himself of the opportunity of delivering his address cannot be a denial of fair hearing which could vitiate the judgment. Where counsel refused to open his defence in spite of several invitations of the Court, the appellants and the counsel cannot be heard to complain that the appellants' constitutional right to fair hearing is enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was denied them. See the cases of LAWAL TUNBI V. ISRAEL OPAWOLE (2000)3 NWLR (Pt 647) 141; AJIDAHUN v. AJIDAHUN (2000)4 NWLR (Pt. 654) 605 and CHIDOKA v. FIRST CITY FINANCE CO. LTD. (2001)2 NWLR (pt. 697) 216 at 227."Per JAURO, J.C.A. (Pp , Paras. D-B) - read in context

3 2. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Principles of fair hearing "In resolving this issue, it is important to appreciate the term "fair hearing" being the cardinal point or the main complaint of the appellants in this issue. Fair hearing strictly involves compliance with the rules of natural justice the twin pillars of which are audi alteram partem meaning 'Hear the other party' and 'nemo judex in causa sua' meaning 'never be a judge in your own case', see NDU v. THE STATE (1990) 7 NWLR (pt. 164) 350 at In the case of TIWANI LTD. v. C.T.M.B. LTD. (1997)8 NWLR (pt. 515) 140 at 153 this Court per KATSINA-ALU J.C.A. (as he then was) on doctrine of fair hearing while referring to the case of KUUSU v. UDOM (1990)1 NWLR (Pt. 127) 421 quoting the Supreme Court said... "Fair hearing is not a technical doctrine. Rather it is a rule of substance whether it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings."per JAURO, J.C.A. (Pp , Paras. E- D) - read in context 3. CONTRACT - SPECIFIC PERFORMANCE: What a party seeking specific performance of a contract must show "...the position of the law is that a party to a contract who wants the Court to order specific performance of the contract must adduce evidence of compliance with its terms."per JAURO, J.C.A. (P. 20, Paras. D-E) - read in context

4 4. CONTRACT - ESSENTIALS OF A CONTRACT: Essential ingredients of a valid contract "The general rule is that a contract for sale of land, as in the instant case, is guided by the basic rules of contract. See BEST (NIG.) LTD. v. V.B.H. (2011)5 NWLR (pt. 1239) p. 95 at p. 129 paras C, It has been settled in a plethora of decided cases that to constitute a binding contract, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Furthermore, the promise of such party must be supported by consideration. See the case of ALFOTRIN LTD. V. AG, FEDERATION (1996)9 NWLR (pt. 475) 634; YARO v. AREWA CONSTRUCTION LTD. (2007)17 NWLR (Pt. 1063) 333; ODUTOLA v. PAPERSACK (NIG.) LTD (2006)10 NWLR (Pt.1012) 470; SONA BREWERIES PLC. V. PETERS (2005)1 NWLR (pt. 908) 478; CRUSHED ROACK IND. LTD. v. UBUBA (2002)8 NWLR (pt. 770) 522 and BEST (NIG) LTD. V. V.B.H. (NIG.) LTD. (supra)."per JAURO, J.C.A. (Pp , Paras. B-A) - read in context

5 5. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal "In the case of AKOLEDOWO v. OJUBUTU (2012) 16 NWLR (Pt. 1325) p. 1 at paras E-A, this court held: "Evaluation of evidence is a duty which falls almost exclusively within the domain of the trial Court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Thus, ordinarily, evaluation of evidence is not the business of the appellate Court. However, where there is failure of evaluation or adequate evaluation by the trial Court despite its unique opportunity of seeing and hearing the witnesses, the findings would not be supported by the evidence on record and would therefore be perverse. In such a case, the appellate Court has a duty to intervene by embarking on its own evaluation of the evidence, accord probative value thereto and make its own findings..."per JAURO, J.C.A. (P. 21, Paras. A-F) - read in context

6 6. JUDGMENT AND ORDER - CONSEQUENTIAL ORDER: Whether courts have the power to grant a relief not specifically asked for as a consequential order "The general principle of law is that a Court of law is not a Father Christmas which sets out dishing out reliefs not sought for. It follows therefore that a party should not be granted relief not sought by the party. See ADO IBRAHIM & CO. v. B.C.C. LTD. (2007)15 NWLR (Pt. 1058) 538, NNPC V. AIC LTD. (2003)2 NWLR (Pt. 805) 560. In the instant case, reliefs 1-3 were specifically sought by the respondent and was rightly granted by the trial Court. On reliefs 4-5, learned respondents' counsel submits that those orders were made consequent upon the finding of the trial Court declaring the purported sale of the house by the 1st defendant to the 3rd defendant as null and void. In the case ofthe MT MAKHAMBET v. I.T. S.A.N. (2012) 2 NWLR (Pt. 1283) p. 184 at 199 paras E. this Court held that the trial Court has discretionary power to make consequential orders. However, in exercising such discretionary power, the Court is enjoined to do so judicially and judiciously. See also OYEYEMI v. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462. In ADEWOLE v. SODlPO (1989)5 NWLR (Pt. 121) 329 at 346 per KUTIGI J.C.A. (as he then was) held: "However, it must be conceded, that a Court may make consequential order flowing from its decision but such reliefs must, as chief Williams himself would appear to have conceded, be related to or incidental to the reliefs claimed." It is no doubt, in the instant case the learned trial judge granted reliefs 4 & 5 incidentally to the grant of reliefs 1-3 in favour of the respondent. Assuming reliefs 1-3 were denied against the respondent, the learned trial judge would not have granted reliefs 4-5."Per JAURO, J.C.A. (Pp. 7-8, Paras. C-E) - read in context

7 ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Borno State presided over by Hon. Justice C.A. Mamza delivered on 9th July, 2014 in suit No.BOHC/MG/CV/110/11, wherein the respondent being a plaintiff before the lower Court instituted an action against the appellants as defendants and claimed for the following reliefs: "(a) An order declaring the plaintiff the rightful owner of a house containing 17 No. of rooms lying and situate at London Liki Area Maiduguri. (b) An order declaring the purported sale of the house to the 3rd defendant as null and void. (c) An injunction restraining the defendants either by themselves, their servant or agents or otherwise whosoever from entering or doing anything in the house. (d) The plaintiff claims the cost of the suit." See page 6 of the record. In their joint statement of defence before the lower Court, the appellants denied the respondent's claims and counter claimed as follows: "(a) An order declaring the 3rd defendant as the title holder of the house in dispute which contained 17 rooms 1

8 located at London Liki Area, Maiduguri. (b) An order directing the plaintiff to give vacant possession of the house in dispute to the 3rd defendant. (c) General damages against the plaintiff (d) Cost of the suit." See pages of the record. After issues have been joined and the matter proceeded to trial, the plaintiff testified on his own behalf and called one other witness, while on the side of the defendant, the 2nd defendant testified as the only witness. At the end of the trial, the learned trial judge in her considered judgment granted all the reliefs claimed by the plaintiff. Aggrieved with the decision of the trial judge, the appellants filed notice of appeal on 27th November, The appellants' appeal is predicated upon three grounds of appeal, the grounds and the particulars are contained on the record of appeal while the reliefs sought from the appeal were: i) An order of the Honourable Court setting aside the decisions of the trial Court judge ii) An order of the Honourable Court remitting for retrial the suit No. BOHC/MG/CV/110/11 and the judge (sic) of Borno State High Court

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10 iii) Cost of this appeal." Parties filed and exchanged their respective briefs of argument in accordance with the Rules of this Court. The appellants brief of argument is dated 1st day of August, 2016 and filed on 15th August, While the respondent's brief of argument is dated 30th day of September, 2016 and filed the same date. On the 1st November, 2016, the appeal was heard. Learned appellants' counsel Y.G. Bello Esq. adopted the appellants, brief of argument. He urged the Court to allow the appeal and set aside the judgment of the trial Court. For his part, learned respondents counsel M.S. Umar Esq. adopted the respondent's brief of argument and urged the Court to dismiss the appeal. From the two grounds of appeal, the learned appellants counsel distilled three issues for determination to wit: 1) Whether the reliefs awarded by the lower Court judge to the respondent were sought by the respondent or any other party in the matter. (Distilled from ground one) 2) Whether the 1st and 3rd defendants/appellants were given opportunity to defend themselves in the matter or not (Distilled from ground two) 3) Whether the 3

11 decision of the learned trial judge was supported by the evidence adduced by the respondent or not (Distilled from ground three)." While the Learned respondents counsel, for his part, also formulated three issues for determination to wit: "1) Whether the reliefs awarded by the lower Court judge to the respondent were sought by the respondent or any other party in the matter (Distilled from ground 1) 2) Whether or not a party who was given all opportunity to defend his case and failed to do so, can come later to complain of being denied of his right to fair hearing (Distilled from ground 2) 3) Whether or not having regards to the pleadings and evidence before the lower Court the respondent has proved his claim as required by law (Distilled from ground 3). A cursory look at the issues formulated by the learned counsel to the parties seem to be similar even though couched slightly different. I am of the considered view any of the issues adopted will conveniently determine the crux of this appeal. I therefore adopt the issues as formulated by the appellants' counsel. ISSUE ONE Whether the reliefs awarded by the

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13 lower Court judge to the respondent were sought by the respondent or any other party in the matter. In arguing this issue, learned appellants counsel contended that the learned trial judge granted some reliefs that were not sought by the respondent which caused miscarriage of justice to the appellants. Learned Counsel submits that a Court of law is saddled with the responsibility of granting only the reliefs sought by a party to a matter and not otherwise. He states that where a Court grant a reliefs not sought for by a party, it goes to no issue. He relied on the case of OKOKO v. DAKOLO (2006) ALL FWLR (pt. 336) pg. 201 AT 212. He also referred and reproduced the reliefs sought by the respondent as well as the reliefs granted by the trial judge. He submits that reliefs 4 and 5 granted by the learned trial judge was not sought for. He also submits that the sale of the subject matter in dispute between the respondent and the 1st appellant has not been declared void. In that regard, he argued that the sale between the parties is still subsisting. He urged us to dismiss the reliefs that were not sought by the respondent. Responding on this 5

14 issue, learned Respondents counsel submits that the respondent prayed in his pleadings annexed to the writ of summons for the reliefs granted by the lower Court. He referred to pages 7-9 of the record. He contends that the order made by the lower Court that the respondent to refund the sum of N100, to the 1st Appellant and that the 2nd Appellant to return to the respondent his title documents is a consequential order within the discretion of the lower Court. He submits that consequential order is necessarily made as being incidental to the principal order in this matter. He relied on the case of ELIGWE v. OKPOKIRI (2015) 2 NWLR (pt. 1443) 348 at paras G-A. It was further contended that the lower Court in its meritorious judgment considered and granted the reliefs of the respondent based on the facts and evidence before the lower Court. He referred to page 73 of the record. In his further submission, learned respondent's counsel submits that reliefs 1, 2, 3 and 6 are clearly sought by the respondent, while the remaining reliefs are incidental pursuant to the appellants' failure to establish by credible evidence a valid sale of the house 6

15 by the respondent to the 1st appellant who purportedly sold the house to the 3rd appellant. He referred to page 72 of the record. In line with his argument above, learned counsel submits that the lower Court was right to have ordered the 1st and 2nd appellants to return the documents they collected from the respondent, the sale of the house between the respondent and 1st appellant having failed to meet the requirement of the law. He urged us to decide this issue in favour of the respondent and dismiss the appeal. The general principle of law is that a Court of law is not a Father Christmas which sets out dishing out reliefs not sought for. It follows therefore that a party should not be granted relief not sought by the party. See ADO IBRAHIM & CO. v. B.C.C. LTD. (2007)15 NWLR (Pt. 1058) 538, NNPC V. AIC LTD. (2003)2 NWLR (Pt. 805) 560. In the instant case, reliefs 1-3 were specifically sought by the respondent and was rightly granted by the trial Court. On reliefs 4-5, learned respondents counsel submits that those orders were made consequent upon the finding of the trial Court declaring the purported sale of the house by the 1st defendant 7

16 to the 3rd defendant as null and void. In the case ofthe MT MAKHAMBET v. I.T. S.A.N. (2012) 2 NWLR (Pt. 1283) p. 184 at 199 paras E. this Court held that the trial Court has discretionary power to make consequential orders. However, in exercising such discretionary power, the Court is enjoined to do so judicially and judiciously. See also OYEYEMI v. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462. In ADEWOLE v. SODlPO (1989)5 NWLR (Pt. 121) 329 at 346 per KUTIGI J.C.A. (as he then was) held: "However, it must be conceded, that a Court may make consequential order flowing from its decision but such reliefs must, as chief Williams himself would appear to have conceded, be related to or incidental to the reliefs claimed." It is no doubt, in the instant case the learned trial judge granted reliefs 4 & 5 incidentally to the grant of reliefs 1-3 in favour of the respondent. Assuming reliefs 1-3 were denied against the respondent, the learned trial judge would not have granted reliefs 4-5. Flowing from the above, I resolve this issue in the respondent's favour and against the appellants. ISSUE TWO Whether the 1st and 3rd defendants/appellants 8

17 were given opportunity to defend themselves in the matter or not. In arguing this issue, learned appellants counsel submits that the appellants were denied their right of fair hearing by the learned trial judge. He referred to page 24 of the record. He states that on the 24th day of June, 2014 the substantive counsel in the matter applied to withdraw from the matter for reason that he was de-briefed by the appellant but the learned trial judge refused to grant the application. He referred to page 56 of the record. He said further on the same date that the application of withdrawal was refused; the Court closed the defence of the appellants and adjourned the matter to the 26th day of June, 2014 for final address. It was further stated that when the matter came up on 26/6/2014 for final address, the new counsel to the appellant sought for an adjournment, and the trial Court only gave him one day and adjourned to 27/6/2014. He referred to page 58 of the record. Stating further that on 27/6/2014, the new counsel to the appellant filed a motion seeking the Court's order to re-open the defence of the defendants/appellants but was refused and the motion dismissed. 9

18 Learned counsel submits that the fair hearing connotes and requires that each and every party in a matter be given an opportunity to be heard otherwise it is a denial of fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria. He referred to the cases of ATAMO V. AG, BENDEL STATE (1988)2 NWLR (Pt. 75) C.G.C. NIG. LTD. V. DIVINE BIBLE CHURCH (2005) ALL FWLR (Pt. 290) Pg at pg and MAIKUDI v. MUSA (2004) ALL FWLR (Pt. 230) Pg at He finally urges the Court to set aside the judgment of the trial Court. Responding on this issue on behalf of the respondent, his learned counsel submitted that the appellant's have been given opportunity to defend their case in this matter. He stated that the appellants were represented by counsel in the matter right from the beginning. He stated that on the 12/9/2013 when the respondent opened and closed his case, a counsel from the same AUDU MUSA & CO. S.M. KACHALLAH appeared for all the appellants. He referred to page 48 of the record. He submits that after several adjournments at the instance of the Appellants, on the 7/11/2013, the Registrar of the lower 10

19 Court intimated the Court that the 2nd defendant has no representation and has not been served and the matter was adjourned to 6/12/2013 for hearing notice to be served on the 2nd Appellant. He stated further that on 3/3/2014, the Registrar of the lower Court informed the Court that the 2nd appellant has been served on 27/2/2014 and the counsel for the appellants informed the Court that he has filed a motion to file a memorandum of appearance and statement of defence for the 2nd appellant consequent upon which the matter was adjourned to 6/3/2014 for defence. It was further stated that on 6/3/2014, the matter could not go on as the appellants counsel sought for further adjournment and the matter was adjourned to 3/4/2014. Learned counsel submits that in view of the above representation of counsel to the appellants, the appellants could not complain denial of fair hearing by the lower Court. He submitted that the duty of a Court is to create an environment for the fair hearing is an inhalant manner for the benefit of the parties. If the parties fail to take advantage of the environment created by the lower Court, they cannot be heard on appeal to complain 11

20 that they were denied fair hearing. He referred to ADELE EKE v. OGBONDA (2007)1 MJSC pg. 160 at 181 paras B-C. In his further submission, learned counsel submits that once pleadings have been joined there is a hearing to which the test of fair hearing under Section 36(1) of the 1999 Constitution (as amended) may be applied. He argued that it is immaterial whether or not one party or the other willfully absented himself from the hearing or failed to give evidence, once a trial has commence after issues have been joined on the pleadings there is a hearing. He relied on the case GBAGI v. OKPOKO (2014) 4 NWLR (pt. 157) 136 paras C-F. Learned counsel further argued that from the record particularly at page 58, the appellants were given opportunity to defend the action like any other case. He urged the Court to decide this issue in favour of the respondent. In resolving this issue, it is important to appreciate the term "fair hearing" being the cardinal point or the main complaint of the appellants in this issue. Fair hearing strictly involves compliance with the rules of natural justice the twin pillars of which are audi alteram partem meaning 'Hear the other 12

21 party' and 'nemo judex in causa sua' meaning 'never be a judge in your own case, see NDU v. THE STATE (1990) 7 NWLR (pt. 164) 350 at In the case of TIWANI LTD. v. C.T.M.B. LTD. (1997)8 NWLR (pt. 515) 140 at 153 this Court per KATSINA-ALU J.C.A. (as he then was) on doctrine of fair hearing while referring to the case of KUUSU v. UDOM (1990)1 NWLR (Pt. 127) 421 quoting the Supreme Court said... "Fair hearing is not a technical doctrine. Rather it is a rule of substance whether it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings." In the instant appeal, the appellants contended that the learned trial judge denied them their right to fair hearing in the proceedings conducted before her. To appreciate whether or not the appellants were denied fair hearing before the lower Court recourse has to be made to the record of proceedings of the trial Court, thus: On 12th day of September, 2013, the 13

22 plaintiff/respondent opened and closed his case, thereafter the appellants counsel sought for an adjournment to open and close their defence. See pages of the record. The trial Court adjourned to 24/10/2013 for defence. On 24/10/2013, the defendants/appellants could not proceed with their defence due to the letter he sent saying that he is sick and applied for an adjournment. The matter was adjourned to 7/11/2013. Thereafter there were series of adjournments at instance of the defendants/appellants such as 6/12/2013, 26/2/2014, 3/3/2014 and 6/3/2014. See pages of the record. On 3/4/2014, the defendants were able to produce one witness who testified in their favour as DW1. Thereafter, the matter continued to suffer series of adjournment at the instance of the defendants/appellants under the guise of settlement out of Court. Those dates are 15/4/2014, 5/6/2014 and 19/6/2014; see pages of the record. On 24/6/2016 when the defendants failed to proceed with their witnesses despite several adjournments as listed above, the learned trial judge closed the defendants' case and ordered for oral address by counsel on 26/6/2014 see page 57 of the record. 14

23 On the 26/6/2014, when the matter came up for the oral address, the defendants/appellants could not proceed and the matter was adjourned to 27/6/2014. On 27/6/2014 instead of the defendants/appellants to continue with oral address as slated by the trial Court, learned counsel filed a motion seeking for an order vacating/discharging trial Court order of 24th day of June, 2014 which closed the defendant's defence. The application was heard and refused for lacking in merit and the matter was further adjourned to 10/7/2014 for address. See pages of the record. The record also did not show the appellants participated in the submission of the oral address before the trial Court. It is to be noted that the law is trite that where a counsel deliberately fails to avail himself of the opportunity of delivering his address cannot be a denial of fair hearing which could vitiate the judgment. Where counsel refused to open his defence inspite of several invitations of the Court, the appellants and the counsel cannot be heard to complain that the appellants' constitutional right to fair hearing as enshrined in Section 36(1) of the Constitution 15

24 of the Federal Republic of Nigeria, 1999 (as amended) was denied them. See the cases of LAWAL TUNBI V. ISRAEL OPAWOLE (2000)3 NWLR (Pt 647) 141; AJIDAHUN v. AJIDAHUN (2000)4 NWLR (Pt. 654) 605 and CHIDOKA v. FIRST CITY FINANCE CO. LTD. (2001)2 NWLR (pt. 697) 216 at 227. Flowing from the above, I am of the humble view that the appellants were not denied their right of fair hearing as they complained by the trial Court. In essence, this issue too is resolved in favour of the respondent and against the appellants. ISSUE THREE Whether the decision of the learned trial judge was supported by the evidence. In arguing this issue, learned appellants counsel submits that the decision of the learned trial judge was not supported by evidence. He argued that from the testimonies of the witnesses in this matter revealed that the reliefs given by the learned trial judge were not in accordance with the testimonies of the witnesses. He submits that the respondent admitted selling the house in dispute to the 1st defendants/appellants but the learned trial judge failed to consider and uphold same, hence the judgment of the trial Court judge 16

25 is a nullity. He referred to page 48 of the record. Learned counsel further submits that the testimony of PW2 is of no moment as he admitted knowing nothing. He referred to page 49 of the record. He urged this Court to resolve this issue in favour of the appellants. In his response, learned respondents counsel submits that the respondent has established his claim by adducing oral evidence which is cogent, credible and consistent. He referred to the case of IKHINMWIN & ANOR. V. ELEMA & ORS. (2015)7 NWLR (pt. 1461) 283 at 310 paras A- F. Learned counsel submitted that the judgment of the lower Court is based on the evidence adduced by the respondent. He referred to the evidence of pw1, pw2 on page 49 of the record and the evidence of DW1. He contends that based on their evidence, the respondent has proved his root of title to the house in dispute before the lower Court. Learned counsel referred to the five ways of establishing title relying on the case of FATOKI v. BARUWA (2012)14 NWLR (pt. 1319) 1 at p. 25 paras B-G and submits that the respondent's claim is based on traditional history as stated by PW2 and DW1. He contended that the purported sale 17

26 of the house in dispute between the 1st appellant and the respondent has not been concluded and therefore the sale of the house to the 3rd appellant by the 1st appellant is null and void. The reason of the counsel's argument is that the 1st appellant has no good title over the house in dispute as you cannot put something on nothing and expect it to stand, he reiterates. He relied on the case of MANYA v. IDRIS (2001) 8 NWLR (Pt. 716) at 637 paras E-G. Where it was held that where a purchaser of land failed to pay, there can be no valid sale even where the purchaser is put in possession. It was submitted that there was no sale between the respondent and the 1st appellant and for the 1st appellant to sell the house to the 3rd appellant. He submits that the plaintiff must succeed on the strength of his case. He maintained that the respondent's case is strong and does not have any element of weakness In it. He referred to the testimonies of PW1, PW2 and the case of AKOLEDOWO & ANR. v. OJUBUTU & ORS. (2012) 16 NWLR (pt. 1325) 1 at 24 paras C. He finally urged the Court to decide this issue in favour of the respondent. The basis of the dispute 18

27 between the parties in this appeal as borne out of the record arises from the validity of the sale of house lying and situate at London Liki Area of Maiduguri between the respondent and the 1st appellant and between the 1st appellant and the 3rd appellant. The general rule is that a contract for sale of land, as in the instant case, is guided by the basic rules of contract. See BEST (NIG.) LTD. v. V.B.H. (2011)5 NWLR (pt. 1239) p. 95 at p. 129 paras C, It has been settled in a plethora of decided cases that to constitute a binding contract, there must be an unmistaken and precise offer and unconditional acceptance of the terms mutually agreed upon by the parties thereto. In other words, the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. Furthermore, the promise of such party must be supported by consideration. See the case of ALFOTRIN LTD. V. AG, FEDERATION (1996)9 NWLR (pt. 475) 634; YARO v. AREWA CONSTRUCTION LTD. (2007) 17 NWLR (Pt. 1063) 333; ODUTOLA v. PAPERSACK (NIG.) LTD (2006)10 NWLR (Pt.1012) 470; SONA BREWERIES PLC. V. PETERS (2005)1 NWLR (pt. 908) 478; CRUSHED ROCK 19

28 IND. LTD. v. UBUBA (2002)8 NWLR (pt. 770) 522 and BEST (NIG) LTD. V. V.B.H. (NIG.) LTD. (supra). In the Instant case, as can be gleaned from the evidence of PW1 that he collected the loan of N100, from the 1st appellant and thereafter he decided to sell his house. The house was bargained at the cost of N2, 000, I agreed to sell the house at the cost N2, 000, st and 2nd defendants brought a sales agreement I refused to sign the agreement because I was not paid the sum of N1,900, " Looking at the evidence of pw1 above, there might be offer and acceptance between the parties but there is no evidence indicating that their agreement was supported by a consideration. The appellants counter claimed against the respondent, the position of the law is that a party to a contract who wants the Court to order specific performance of the contract must adduce evidence of compliance with its terms. The appellants did not show in any way that they complied with terms of the contract with the respondent. Having the 1st appellant failed to establish a valid sale of the respondents house to himself, it follows therefore on the principle of 20

29 'nemo dat quad non Habet' that the 1st appellant cannot transfer valid title in favour of the 3rd appellant. It is therefore my view that the learned trial judge properly evaluated the evidence before her in reaching the decision in this case. In the case of AKOLEDOWO v. OJUBUTU (2012) 16 NWLR (Pt. 1325) p. 1 at paras E-A, this court held: "Evaluation of evidence is a duty which falls almost exclusively within the domain of the trial Court which alone has the unique advantage of seeing and hearing the witnesses in the course of their testimonies. Thus, ordinarily, evaluation of evidence is not the business of the appellate Court. However, where there is failure of evaluation or adequate evaluation by the trial Court despite its unique opportunity of seeing and hearing the witnesses, the findings would not be supported by the evidence on record and would therefore be perverse. In such a case, the appellate Court has a duty to intervene by embarking on its own evaluation of the evidence, accord probative value thereto and make its own findings... In the instant case, the finding of the trial Court is not perverse and therefore 21

30 this Court will not interfere with the said findings. From the totality of all that has been said, I find that this appeal is lacking in merit and it is hereby dismissed. The judgment of the Borno State High Court of Justice presided over by Hon. Justice C.A. Mamza delivered on 9th July, 2014 is hereby affirmed. There will be no order as to costs. ADZIRA GANA MSHELIA, J.C.A.: I read before now the lead Judgment of my learned brother Jauro, J.C.A just delivered. I entirely agree with his reasoning and conclusion arrived thereat. My learned brother has adequately considered the issues raised for determination in this appeal. I have nothing useful to add, I adopt his reasoning and conclusion as mine. I too hold that the appeal lacks merit and same is dismissed. I abide by other consequential orders, inclusive of costs. RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read the lead judgment delivered by my learned brother, ADAMU JAURO JCA who meticulously dealt with the three (3) issues formulated by the Appellants distilled from the grounds of appeal. The reasoning and conclusion of my noble lord 22

31 is accepted to me as my opinion. I also considered the appeal unmeritorious and dismiss same. The judgment of the lower Court delivered on 9th July, 2014 is therefore affirmed. No order as to costs. 23

32 Appearances: Y.G. Bello, Esq. For Appellant(s) M.S. Umar, Esq. For Respondent(s)