MRS. ROSE ADEOLA V. EMMANUEL NOK & ORS

CORAM

AMINA AUDI WAMBAI JCA

BITRUS GYARAZAMA SANGA JCA

MOHAMMED BABA IDRIS JCA

PARTIES

MRS. ROSE ADEOLA

APPELLANTS

EMMANUEL NOK & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, ACTION, COURT, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

By a writ of summons dated 27th November, 2007, the Appellant with her husband (now deceased) as Plaintiffs, filed an action against the Respondents as Defendants. The Appellant claims that one Mr. Mohammed Nadabo, also an estate agent showed her a plot of land known as Plot No. 14, Tanko Ayuba Road, Barnawa Phase II, Kaduna and told her that the owner of the said plot of land had put same up for sale through the Respondents in the sum of N2,200,000.00 (Two Million Two Hundred Thousand Naira). The Appellant later took her husband to see the plot of land, which he also showed interest, and then Mohammed Nadabo was invited to the Chambers of Sani, Jigah & Co., the Appellant’s solicitors, for further discussions. At the meeting, Mohammed gave a photocopy of the title document of the said land bearing the name of Group Captain Alice Mshelia (land owner) to the Appellant’s solicitor who after proceeding to conduct a search at the Land Registry of Kaduna State Development and Property Company Limited, became satisfied that the title document was genuine. Upon being asked to invite the agent acting for Group Captain Alice Mshelia, Mohammed Ndabo came with the 1st and 2nd Respondents to the solicitor’s office. The solicitor then requested for the original title deed to the said land but the 1st Respondent replied that the documents were with the land owner at Abuja but promised to make the documents available to the solicitor the following day. The 1st Respondent represented to the Appellant’s solicitor that the said Group Captain Alice Mshellia was his aunt and convinced the solicitor to speak with her on the phone and the solicitor believed he was actually speaking to the land owner.

After several failed attempts stalled by the 1st Respondent to see the land owner, the 1st and 2nd Respondents introduced one Mr. Buba Gazama to the Appellant as the person who had the authority of the land owner to collect the money on her behalf while the 3rd Respondent impersonated Group Captain Alice Mshellia, the land owner. The Appellant and her deceased husband issued a cheque of N2,200,00.00 (Two Million, Two Hundred Thousand Naira) to the said Mr. Buba Gazama in his name upon the instruction of the 1st Respondent and the said cheque was cleared by the said Mr. Buba Gazama.

The Appellant further claims that after the cheque was cleared, she and her husband discovered that the transaction was a fraud and then decided to institute the action. In a joint statement of defence, the Respondents denied the Appellant’s claim and urged the trial Court to dismiss the suit with substantial cost. After taking evidence and counsel adopting their respective addresses, the trial Court delivered judgment on the 18th of December, 2012 in favor of the Respondents, and dissatisfied with the said judgment delivered by the trial Court, the Appellant filed this Appeal raising 11 (Eleven) grounds.

HELD

Appeal dismissed

ISSUES

1.Whether having regard to the pleadings filed by the Appellant and those of the 1st and 2nd Respondents and the evidence adduced in support thereof, can it be said that the lower Court was right to have held that the Appellant could not prove her claim against the 3rd Respondent in this case?

2.Whether the learned trial Judge was right to have resorted to speculations and assumptions in making a case for the 3rd Respondent and which case, the 3rd Respondent did not make for herself before the Court?

3.Whether the learned trial Judge was right to have found and held that the only role played by the 3rd Respondent in the failed transaction can only give rise to criminal liability and not civil liability?

4.Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right when it held that the 1st and 2nd Respondents cannot be held liable to pay damages to the Appellant for breach of warranty of authority which they claimed was given to them by Group Captain Alice Mshelia for the sale of the latter’s plot of land in question and which warranty of authority induced the appellant to enter into the failed transaction but which authority the 1st and 2nd Respondents never had or possessed in actual fact?

5.Whether the decision of the lower Court, to the effect that, the appellant’s failure to join Mr. Buba Gazama as a co-defendant in the case was fatal to the appellant’s case is justifiable in law?

6.Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right, when it held that there was no evidence before the Court to show or prove that the 1st and 2nd Respondents conspired or connived with Buba Gadzama to collect money on behalf of Group Captain Alice Mshelia?

7.Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right, when it held that there was no evidence adduced by the Appellant before the Court to show or prove that Group Captain Alice Mshelia was not the person who wrote the letter of authority (Exhibit 4)?

8.Whether having regard to the facts pleaded and proved by the Appellant in this case, can it be said that the lower Court was right when it held that the 1st and 2nd Respondents cannot be held liable to pay damages to the Appellant for breach of warranty of authority, on the ground that, there was no agency agreement between the Appellant and her demise husband and the 1st and 2nd Respondents wherein the 1st and 2nd Respondents were to look or source for a plot of land for the appellant and her demise husband to buy?

9.Whether having regard to the facts pleaded and proved by the appellant in this case, can it be said that the lower Court was right when it held that the only remedy available to the appellant against the 1st and 2nd Respondents in the circumstances of the instant case, is the refund of the commission which the Appellant paid to the 1st and 2nd Respondents as agents to Group Captain Alice Mshelia and not the purchase money that was paid to Buba Gadzama at the instance of the 1st Respondent and damages for breach of warranty of authority?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – WHETHER ISSUE(S) FOR DETERMINATION MUST BE TIED TO SPECIFIC GROUND(S) OF APPEAL – EFFECT OF FAILURE TO INDICATE WHICH GROUND(S) OF APPEAL IS COVERED BY AN ISSUE FOR DETERMINATION

“It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. See the cases of ABE VS. UNIVERSITY OF ILORIN (2013) 6 NWLR (PT. 1319) PAGE 183 AT 205 PARAGRAPH D – G and HONIKA SAWMILL (NIG.) LTD VS. MARY OKEJIE (1994) 2 NWLR (PT. 326) 252 AT 262. However, not tying the issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. In the case of UBN LTD VS. ODUSOTE BOOK STORES LTD (1995) NWLR (PT. 421) AT 563, it was held that:

“While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that, that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.”

From the above, it is crystal clear that the rules do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also the cases of NIGERIAN PORTS PLC VS. B. P. PTE LTD (2012) 18 NWLR (PT. 454) AT 480 and HANSEATIC INTERNATIONAL LTD VS. USANG 2002 13 NWLR (PT. 784) AT 401 – 402.

The failure to so indicate in the 1st and 2nd Respondents Brief of Argument, has now placed on this Court an additional duty to, including its numerous duties, scrutinize the Amended Notice of Appeal to be able to ascertain whether the said issue two raised and argued by the 1st and 2nd Respondents’ Counsel was distilled from the grounds of appeal.” – Per IDRIS, JCA

GROUND(S) OF APPEAL – POSITION OF THE LAW ON DISTILLING ISSUE(S) FOR DETERMINATION FROM GROUND(S) OF APPEAL

“Looking at the Amended Notice of Appeal and the 11 (eleven) grounds contained therein, it is clear that issue two raised by the 1st and 2nd Respondents was distilled from grounds 4, 5, 6, 7, 8 and 9 of the Amended Notice of Appeal and this is also within the ambit of the law as it is trite that while one issue may be distilled from more than one ground of appeal, not more than one issue shall be formulated from a ground of appeal and thus the argument of the Appellant’s Counsel as contained in the Appellant’s reply brief of argument shall be disregarded. The issue two raised by the 1st and 2nd Respondents to my mind, is valid.” – Per IDRIS, JCA