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Zein v. Geidam

ALHAJI MOHAMMED ZEIN

V

ALHAJI TIJANI SALEH GEIDAM

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR JCA ( Presided )

IFEYINWA CECILIA NZEAKO JCA

IKECHI FRANCIS OGBUAGU JCA ( Read the Lead Judgment )

CA/J/72/95

MONDAY, 19TH APRIL, 2004 

APPEAL - Ground of appeal - Omnibus ground - Purport of

CONTRACT - Written contracts and agreements - Contracts of Bindingness on court - Ambiguities therein - Propriety of use of extrinsic evidence to determine real intention of parties

DOCUMENT - Agreements and contracts - Contents of - Bindingness on court - Ambiguities therein - Propriety of use of extrinsic evidence to determine real intention of parties

DOCUMENT - Signatory to - Bindingness of content of document on

DOCUMENT - Spurious document/deed of title - Registration of Whether validates

EVIDENCE - Address of counsel - Impropriety of substituting for evidence before the court

EVIDENCE - Allegation of fraud in civil suit - Standard of proof of Need ot distinctly allege and prove beyond reasonable doubt

EVIDENCE - Signature - Dispute as to authority of - Duty on court to compare with other signature of the signatory

JUDGMENT AND ORDERS - Reliefs not claimed by parties Impropriety of court awarding

LAND LAW - Title to land - Dismissal of plaintiffs claim to title Automatic conferment of title on defendant where there is no cross-action - Impropriety of

PLEADINGS - Evidence - Pleading of - Needlessness of - Facts not evidence need be pleaded

PRACTICE AND PROCEDURE - Address of counsel - Impropriety of substituting for evidence before the court

Issues:

1.              Whether having regard to the pleadings and the evidence before the trial court, the trial Judge was right in dismissing the appellant’s action

2.              Whether the respondent was entitled to the declaration and order made by the trial court in his favour having regard to the state of the pleadings and the evidence before the court?

Facts:

This is an appeal against the judgment of the High Court of Borno State, Maiduguri delivered on 1st November, 1994.

The appellant (plaintiff in the lower court) was indebted to a third party - one Alhaji Modu Gorama in the sum of N21,000.00 (twenty-one thousand naira) only as a result of which he was detained in prison custody by the Upper Area Court. His relations approached the respondent to secure a loan of N26,000.00 (twenty-six thousand naira) only, to facilitate the appellant’s bail. The respondent provided the said sum but upon a written agreement made between the appellant and the respondent on 30th August, 1983 . The agreement, prepared by a legal practitioner and witnessed by three witnesses was to the effect that if the appellant failed to repay the said loan within the time stipulated therein, the appellant would forfeit the plot of land now in dispute, covered by a certificate of occupancy No. BO/ 4265 . The appellant handed over the title documents in respect of the land to the respondent.

The appellant breached the terms and conditions of the agreement

by his failure to repay the loan. He claimed that the said agreement was tied to a pledge and that the title document was a security for repayment which the respondent denied. Thus in paragraph 19 of his statement of claim, he claimed as follows:

(a)           An order of the court setting aside the purported deed of assignment as same is illegal, void and of no effect ab initio.

(b)           A declaration that the plaintiff is the lawful owner of the plot of land in dispute.

(c)           A perpetual injunction restraining the defendant, his agent, servants and purported assigns from laying any claim over or committing further acts of trespass on the said plot of land.

(d)           Special and general damages for trespass and destruction of the land in dispute.

(e)           Cost of this suit.

(f)            Further or other reliefs.

The defendant/respondent also counter-claimed as follows:

(a)           An order for the payment of the N26,000.00 being rent collected as per the judgment of the Rent Tribunal.

(b)           Special damages for trespass and destruction of plot of land in dispute.

(c)           Cost of this suit.

(d)           Further or other relief.

The trial court found for the respondent. Dissatisfied, the plaintiff/ appellant appealed to the Court of Appeal.