OLU-OLUMOGBA v. JATTO & ORS
(2020)LCN/15436(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, November 20, 2020
CA/L/831/2017
RATIO
POSSESSION OF LAND: WHETHER THE ERECTION OF A FENCE IS DEEMED TO BE A SUFFICIENT ACT OF POSSESSION OF LAND
The type of conduct which indicates possession of land therefore varies with the type of land. In other words, the nature of the land will indicate the character of possession vide Ayinde v. Salawu (1989) 3 NWLR (pt. 109) 297 at 316 – 317, Wuta-Ofei v. Danquah (1963) 3 ALL ER 596 at 600.
Erection of a fence or the planting of survey beacons or even pegs are said to be sufficient acts of possession of land videMajekodunmi v. Abina (2002) 1 SCNJ 106 at 123 following the cases of Wuta-Ofei v. Danquah (supra), Alatishe v. Sanyaolu (1972) 2 S.C. 97, Ajero v. Ugorji (1999) 10 NWLR (pt. 621) 1, read with the Supreme Court case of Ayinde and Anor. V. Salawu(supra) 297 at 318 following the Privy Council Case of Wuta-Ofei v. Danquah (supra) at 600. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
DOCUMENTARY EVIDENCE: CONDITIONS TO BE SATISFIED TO QUALIFY A PUBLIC DOCUMENT AS ADMISSIBLE EVIDENCE OF ITS CONTENTS
It appears settled that even where a copy of a public document carries the words “certified true copy” at the foot thereof with the date it was certified together with the name and official title of the officer in the custody of the document, as the certifying officer, such document would not qualify as a properly certified true copy which can be admissible evidence of its contents unless evidence of payment of fees or waiver of payment of legal fees in respect of the certification of the document is established as a condition precedent before the document would be legally admissible in evidence vide P.D.P. v. Sidi-Ali (2004) ALL FWLR (pt. 220) 1371, Tabik Investment Ltd. v. G.T.B. Plc (2011) ALL FWLR (pt. 602) 1592, Agbai v. INEC (2009) ALL FWLR (pt. 449) 594. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
CAPTAIN A. OLU-OLUMOGBA APPELANT(S)
And
- BAALE MUSENDIKU ISHOLA JATTO (BAALE OF OKOKOMAIKO) 2. HASSAN SUFFIAN 3. IBRAHIM BABATUNDE SULEIMAN (For Themselves And As Representatives Of The YISA SULE FAMILY Of Okokomaiko In Ojo Local Government Area Of Lagos State) 4. MR. RASHEED AKINKUNMI ADIGUN. RESPONDENT(S)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a judgment of the High Court of Justice of Lagos State sitting in Badagry (the Court below) whereby it dismissed the appellant’s action for a declaration of title to a piece of land located at Okokomaiko village, Badagry, and for an order of specific performance directing the 1st — 3rd respondents to issue a purchase receipt and execute all instruments in favour of the appellant to enable the appellant perfect and register his title to the land at the Lands Registry Lagos as well as for an order of perpetual injunction restraining the respondents and their agents, privies, cohort and representatives from threatening the appellant’s possession of the parcel of land and/or selling or trespassing on the said parcel of land.
The background facts, according to the appellant, were that he purchased the disputed parcel of land from the predecessor-in-title of the 1st – 3rd respondents through their attorney, a legal practitioner, who was later elevated to the High Court Bench, and was put in possession thereof in 1981 and had been in undisturbed possession of the parcel of land between 1981 — 2008 until the 1st — 3rd respondents brought thugs to the land in 2008 in a bid to force him to re-purchase the disputed parcel of land from them.
According to the appellant, he reported the matter to the police where the attorney of the 1st — 3rd respondents made a statement to the police in acknowledgment of the land purchase transaction; and that it was the threat of dispossessing him of the disputed parcel of land by force or Viet armis that made him to file the action at the court below seeking the reliefs (supra).
On the other hand, the 1st — 3rd respondents filed a statement of defence which the Court below considered incompetent and ordered the 1st — 3rd respondents to regularize it to no avail; hence the case proceeded to finality on the unchallenged statement of claim and evidence of the appellant who testified as the sole witness in the case, with the 1st — 3rd respondents abstaining from the case.
The Court below dismissed the appellant’s case in its entirety on the ground that the appellant did not specify the amount of the purchase price purportedly paid on the land.
The appellant was dissatisfied with the decision of the Court below and challenged it by a notice of appeal comprising five (5) grounds contained in pages 326 — 328 of the record of appeal (the record). The appellant’s brief of argument was filed on 08.08.18 in which it was contended that the 1st — 3rd respondents neglected to utlitise the opportunity to be heard afforded them by the Court below in the case as they refused to participate in the case vide pages 305 — 306 of the record, therefore, the 1st — 3rd respondents should not be heard to complain of denial of fair hearing vide Ajidahun v. Ajidahun (2000) 4 NWLR (pt. 654) 614; and that the 1st — 3rd respondents having refused to file a valid statement of defence and, also, refused to participate in the case, the onus of proof on the appellant as the claimant at the Court below was minimal and was established on his unchallenged evidence of purchase and quit possession of the disputed parcel of land upon which the appellant urged that an order of specific performance should be made as requested for in the action vide N.E.P.A. v. Alli (1992) 8 NWLR (pt. 259) 279 @ 301, Oforlete v. State (2000) 12 NWLR (pt. 681) 415 at 436, Basil v. Fajebe (2001) 11 NWLR (pt. 725) 592 at 616 – 617, Bassey v. Ekanem (2001) 1 NWLR (pt. 694) 360 at 373, Ishola Williams v. Hammond (1988) 1 NWLR (pt. 69) 481 at 488, Bamgbose v. Jiaza (1991) 3 NWLR (pt. 177) 64 at 72, Tella v. Usman (2000) 11 NWLR (pt. 677) 95 at 103, Nteogwuija v. Ikuru (1998) 10 NWLR (pt. 569) 269 at 293, Ajadi v. Olanrewaju (1969) 6 N.S.C.C. 334 at 339.
The appellant further contended that it was his case at the Court below from the pleadings and the evidence at the Court below that he paid the purchase price and was let into possession which had established his title to the land by purchase and that the appellant had paid the fees for certification of the statement to the police of the attorney and solicitor of the 1st — 3rd respondents’ family as required by Section 104(1) of the Evidence Act 2011, (Evidence Act) and thus enjoyed the presumption of regularity and was accordingly presumed to be entitled to a certified true copy thereof under Section 18 of the Evidence Act.
Consequently, the appellant contended that Exhibit 2, the statement to the police of the 1st — 3rd respondents’ attorney, substantially complied with Sections 104 and 105 of the Evidence Act as the document on the face of it indicated certification and should be taken as such in disregard of the mistake of the certifying officer, if any, vide Bookshop House v. Stanley Consultants (1986) 3 NWLR (pt. 26 – 32) 87 at 93, Onvali v. Okpata (2001) 1 NWLR (pt. 694) 282 at 303, Oneh v. Obi (1997) 7 NWLR (pt. 611) 587 at 599, Odubeko v. Fowler (1993) 7 NWLR (pt. 308) 637, Aribisala v. Ogunyemi (2001) FWLR (pt. 31) 2875 at 2876.
The appellant also contended that with Exhibit 2 in evidence, it was unnecessary to call its maker as a witness vide Section 105 of the Evidence Act as his evidence is inadmissible and cannot be let in to alter the contents of the document which the Court below was expected to evaluate, so the Court below was wrong to hold that the appellant should have presented the maker of Exhibit 2 to give evidence in the case vide Yero v. Union Bank of Nigeria Limited (2000) 5 NWLR (pt. 657) 470 at 478, Agagu v. Dawodu (1990) 7 NWLR (pt. 160) 56, Bunge v. Governor, Rivers State (2006) 12 NWLR (pt. 995) 573 at 616 – 617, Kimdey v. The Military Governor, Gongola State (1998) 2 NWLR (pt. 77) 445, Monkom v. Odili (2010) 2 NWLR (pt. 1179) 419 at 442, Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402 at 416, Kopek Construction Ltd. v. Ekisola (2010) 3 NWLR (pt. 1182) 618 at 663.
The appellant also contended that since Exhibit 2 was wrongly expunged by the Court below which had caused miscarriage of justice, Section 15 of the Court of Appeal Act, 2004, as amended, should be invoked to restore Exhibit 2 for evaluation with the evidence on the record to arrive at a decision reversing the judgment of the Court below and substitute therefor a decision granting all the reliefs sought by the appellant at the Court below vide Union Beverages Ltd. v. Pepsi Cola Int. Ltd. (1994) 3 NWLR (pt. 330) 1 at 12, Bunge v. Gov., Rivers State, Adeleke v. Iyanda (2001) 12 NWLR (pt. 729) 1 at 23 – 24, Oforlete v. State (2000) 12 NWLR (pt. 681) 215 at 436, Atunrase v. Philips (1996) 1 NWLR (pt. 427) 637 at 652 – 653; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the reliefs sought by the appellant in the statement of claim at the Court below be granted.
The 1st — 3rd respondents were put on notice of the appeal but did not file any brief. The 4th respondent, however, filed his brief on 15.02.19, which was deemed as properly filed on 28.01.20. The 4th respondent narrated in the brief that he had sought to be joined as a party at the Court below but his application was refused and/or dismissed by the said Court. The Court however, allowed the 4th respondent to be joined as an interested party in the appeal on 02.11.2018.
The 4th respondent prefaced his brief with the contention that declaratory reliefs are not granted in default of appearance or defence but on the strength of credible and cogent evidence of the claimant in proof of the declaratory reliefs sought vide Chukwumah v. SPDC (Nig.) Ltd. (1993) LPELR – 864, Zaro Titus and Ors. V. Bado (2018) LPELR – 44002.
The 4th respondent contended that once there is proof that a purchaser of land paid the purchase price and was let or put into possession of the land by the vendor, then the purchase would extinguish the title of the vendor forever vide Okonkwo v. Okolo (1988) 5 SCNJ 128, Akingbade v. Elemosho (1964) 1 ALL NLR 154, Cole v. Folami (1956) 1 F.S.C. 66 at 69, Erinosho v. Owokorin (1965) NMLR 479, Udoye v. Adimora and Ors. (2018) LPELR – 44952.
The 4th respondent also contended that there are two methods of proving purchase of land, namely Customary sale or English sale by conveyance; and that in this case, the appellant did not plead customary sale as well as whether the sale was approved by the family head and the principal members of the family, therefore the purported sale of the disputed parcel of land to the appellant was not established; and that the assertion of long possession built on sale of the disputed portion of land crumbled in consequence, so urged the 4th respondent citing in support the cases of Oyawole v. Makan and Ors. (2018) LPELR — 43994, Titus and Ors. v. Bado (supra), Inyam and Ors. v. Exchigak and Ors. (2017) LPELR — 43283.
The 4th respondent contended that the Court below was right to hold that the attorney that sold the land to the appellant on behalf of the 1st — 3rd respondents should have been called as a witness; and that, since the purchase price was not disclosed by the evidence of the appellant, there was no proof that consideration was paid for the purchase of the parcel of land, showing the appellant failed to establish title by his assertion of long possession of the disputed parcel of land which, according to the 4th respondent, left the 1st – 3rd respondents as undisputed owner of the parcel of land vide Abbas v. A.A.B.l. Builders Ltd. and Ors. (2018) LPELR — 44400, Oseni and Ors. v. Oyetoro and Ors. (2018) LPELR – 44326. Kyari v. Alkali (2001) 11 NWLR (pt. 724) 412, Atufe v. Oghomienor (2004) NWLR (pt. 890) 349 – 350.
The 4th respondent referred to page 17 of the record where Exhibit 2 was annexed, to contend that Exhibit 2 was not certified at all and that, though it was admitted in evidence without objection, the Court below rightly expunged it in its judgment as the document was inadmissible ab-initio vide Sections 89(e) , 90(1) (e), 104 and 105 of the Evidence Act read with the cases of Tabik Investment Ltd. and Anor. V. Guaranty Trust Bank Plc (2011) LPELR – 3131, Araka v. Egbue (2003) LPELR – 532, Shanu v. Afribank Plc (2003) FWLR (pt. 136) 823 at 853.
The 4th respondent contended that since the appellant did not make it an issue at the Court below that there was mistake in the certification of Exhibit 2 and had not gone ahead to solicit for an adjournment at the Court below for the alleged mistake to be rectified by the certifying officer, the appellant should not be allowed to raise the issue for the first time on appeal; more so, the decision in Tabik (supra) per the lead judgment did not state that the document be sent back for certification; and that the decision of His Lordship, Rhodes-Vivour, J.S.C., one of the learned Justices in the case of Tabik (supra) to that effect was not the decision of the Supreme Court in that case, and should not be followed as it was rendered obiter.
The 4th respondent further contended that the law on certification of secondary evidence of a public document remained intact to the effect that once a public document is not duly certified as required by law, same is inadmissible in evidence; and that the decision in Aribisala (supra) that such document could be sent back for certification was a statement made in passing or obiter and is at best a recommendation to trial Courts when such issues are raised at the trial of the action vide Abacha v. Fawehinmi (2000) 6 NWLR (pt. 660) 228.
The 4th respondent contended that in the light of the fact that Exhibit 2 did not show payment of certification fee, nor a certificate on the face of the document that it is a certified true copy, nor a certificate duly signed by the officer stating his name and title, it was rightly expunged by the Court below in its judgment vide Emmanuel v. Umana & Ors. (2016) LPELR — 40037; upon which the 4th respondent urged that the decision of the Court below should be affirmed.
The amended reply brief of the appellant was filed on 24.03.2020, but it was deemed as properly filed on 29.09.20, where it was argued that in the absence of a purchase receipt in proof of purchase of land, evidence of a person who witnessed the purchase would suffice vide Adepate v. Babatunde (2002) 4 NWLR (pt. 756) 99 at 117; that Exhibit 2 established the purchase of the disputed parcel of land; that, since Exhibit 2 contained the facts upon which its maker was to testify in Court, it was unnecessary to call the maker to testify in the case; consequently, the appellant urged that the Court below should not have held that the maker of Exhibit 2 should have been physically called in Court to testify on what was contained in Exhibit 2 vide Omega Bank Plc. v. O.B.C. Ltd. (2005) 8 NWLR (pt. 928) 547 at 528, Aregbesola v. Oyinlola (2011) 9 NWLR (pt. 1253) 458 at 586; and that Exhibit 2, being a public document, same could even be tendered from the Bar videAregbesola v. Oyinlola (2009) ALL FWLR (pt. 472) 1147 at 1181.
The appellant further argued in the amended reply brief that the attorney of the 1st — 3rd respondents’ family was their agent and were bound by his act vide Bamigboye v. University of Ilorin (1991) 8 NWLR (pt. 207) 1 at 30, R.E.A.N. Ltd. v. Aswani Textile Ind. (1991) 2 NWLR (pt. 176) 639 at 669; and that had Exhibit 2 not been expunged, it would have established equitable title of the appellant to the disputed parcel of land as the 1st — 3rd respondents did not dispute the authority of the attorney to sell the disputed parcel of land to the appellant.
It was also argued that to the extent that there was an undenied earlier sale when the 1st – 3rd respondents approached the appellant for the latter to re-purchase the land or face forceful ejectment, the family of the 1st — 3rd respondents could not be heard to dispute the purchase of the parcel of land by the appellant which purchase divested the 1st — 3rd respondents’ rights over the disputed parcel of land vide Tella v. Usman (2000) II NWLR (pt. 677) 95 at 103.
The appellant also contended in the amended reply brief that his uninterrupted possession of the land for 29 years established his title to the land vide A. – G., Adamawa State v. Ware (2006) 1 SC (pt. 11) 107 at 112, Idundun v. Okumagba (1976) 10 NSCC 445 at 453.
The appellant relied on the case of Nwosu v. State (1990) 7 NWLR (pt. 162) 322 at 334 to contend that an obiter dictum of the Supreme Court is binding on all the Courts below it.
The appellant contended that the land, the subject matter of the appeal, is 4139.330 square metres in dimension, not 4086-121 square metres, as stated in the 4th respondent’s brief of argument; that it is the piece of land the 4th respondent claimed he bought from the 1st — 3rd respondents in 1998 that is 4086.121 square metres in dimension.
The appellant argued thence forward that the two parcels of land are on Eko Akete and are separated by 64 meter stretch of land; that the survey plan of the land in dispute is contained in page 15 of the record; and that the composite survey plan from the office of the Surveyor-General of Lagos State dated 14.06.17 which forms part of the record of the Court in CA/L/411M/2017 had confirmed that the appellant’s land, the subject matter of the appeal, is different from that of the 4th respondent which fact was referred to by the Court in CA/L/411M/2017, therefore there was no lis between the appellant and the 4th respondent to generate a controversy for the Court to resolve under Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution), so contended the appellant who called the 4th respondent “a meddlesome interloper” and urged that the 4th respondent be treated as such; and that the appeal should be allowed and the reliefs sought as set out in the appellant’s statement of claim at the Court below be granted.
Now, the appellant frontloaded his originating process with the statement of claim, list of witnesses and documents to be relied upon at the hearing of the action together with the written statement on oath of his witness on 09.04.10 vide pages 1 — 17 of the record. The 1st – 3rd respondents who were the only defendants at the Court below entered conditional appearance on 02.08.10 vide pages 18 — 19 of the record. 1st — 3rd respondents’ joint statement of defence was filed along with the list of witness and the witness statement on oath on 03.10.13 vide pages 24 — 31 of the record.
The statement of defence was ordered to be deemed as properly filed upon payment of the default fees by order of the Court made on 17.12.13 vide pages 297 of the record. Learned counsel for the 1st — 3rd respondents as the 1st — 3rd defendants at the Court below informed the Court below on 26.11.2014 that the 1st — 3rd respondents were yet to pay the default fees to regularise the filing of the statement of defence as ordered by the Court below vide page 300 of the record. The statement of defence was not therefore regularized as ordered by the Court below prompting the appellant’s learned counsel to request to proceed with the case on the statement of claim alone on 17.02.2016 vide page 303 of the record. The case then proceeded to trial on the pleadings and the evidence of the appellant alone. The Court below adjourned for judgment which was subsequently given dismissing the appellant’s case vide pages 303 — 307 and 320 — 325 of the record.
The written statement on oath of the sole witness for the appellant (the appellant as the claimant at the court below) is contained in pages 9 — 12 of the record as follows —
“CLAIMANT’S WRITTEN STATEMENT ON OATH
1 CAPTAIN A. OLU OLUMOGBA, a Nigerian Citizen of No. 26, Odutola Street, Alimosho Lagos State hereby make oath and state as follows.
1. I am a retired Commercial Pilot residing at No. 26, Odutola Street, Alimosho Lagos State.
2. The 1st to 3rd Defendants are the Head and Principal members of YISA SULE FAMILY of OKOKOMAIKO in Ojo Local Government Area of Lagos State. The 1st to 3rd Defendants are sued jointly and severally and/or in a representative capacity for themselves and on behalf of YISA SULE FAMILY OF OKOKOMA/KO. The Defendants resides at Baale’s Palace, Okokomaiko in Ojo Local Government Area of Lagos State.
3. Sometime in 1980 I bought from the YISA SULE FAMILY an acre piece of land at OKOKOMAKO VILLAGE along the Lagos-Badagry Expressway in Ojo Local Government Area of Lagos State subject to the provisions of the Land Use Act 1978.
4. The land aforesaid (the subject matter of this suit) measuring an area of 4139 is covered by and more specifically described and delineated in Survey Plan No: AAW/L/1013/81 dated 11/9/81 drawn by A.A.A. Williams (Licensed Surveyor).
5. I bought the land aforesaid from YISA SULE FAMILY through Retired Honourable Justice Olusola Hunponu-Wusu who acted as the Family Agent and Solicitor from 1973 to 1985 before his elevation to the High court Bench in February 1986.
6. In consideration of the purchase price paid by me to the Defendants predecessors, I was let into possession of the land in 1981 and I erected thereon a concrete wall fence secured with iron gate.
7. I had been and remained in peaceful, undisturbed and uninterrupted possession of the land since 1981 and also exercised various acts or ownership by causing the land to be surveyed, erecting concrete wall fence, and, planting and harvesting vegetables on the land every season.
8. In addition to the purchase price paid by me to the YISA SULE FAMILY, I also paid the family Surveyor and Solicitor respectively to prepare the Survey Plan and the Deed of Assignment in respect of the land.
9. The original copies of the Survey Plan drawn by AKIN WILLIAMS (Licensed Surveyor) dated 11/9/81 in respect of the land were in 1981 delivered to the then Solicitor of YISA SULE FAMILY to prepare the Deed of Assignment but unfortunately and for reasons which were unknown to me the family Solicitor did not prepare the Deed before his elevation to the High Court Bench in February 1986.
10. After the elevation of the family Solicitor to the High Court Bench in 1986. I made several efforts to get him to conclude the documentation on the land but could not gain access to him due to his tight schedule and the restriction of visitors to his office and official residence.
11. Up till date the YISA SULE FAMILY has failed and/or neglected to either issue a purchase receipt for the land nor cause their Solicitor to prepare a Deed of Assignment to be executed between the family and myself, pursuant to which I may conclude the transaction and perfect my title by procuring the Governor’s consent pursuant to the Land Use Act 1978.
12. It was the Head and Principal Members of YISA SULE FAMILY who sold the land to me and the Defendants who are members of the same family were privy to and bound by the inchoate transaction entered into by their predecessors.
13. Since 2008, the Defendants acting by themselves, their agents, privies, cohorts and representatives have been disturbing the peaceful possession which had hitherto enjoyed for 29 years on the land and have been threatening to forcefully dispossess me of the land if I fail to repurchase the land from them.
14. As a result of their act of threats, I had to report the Defendants to the Nigerian Police at Okokomaiko Police Station sometime in May 2008 and they were invited to give statements to the Police. Both myself and the Retired Hon. Justice Olusola Hunponu-Wusu were also invited and we equally wrote statement to the police in respect of the land sold to me by the YISA SULE FAMILY.
15. The statement made by Retired Honourable Justice Olusola Hunponu-Wusu to the police on 26th May 2008 clearly confirmed that I bought the land from the YISA SULE FAMILY through him and that I was let into possession in 1981.
16. Despite the fact that I validly bought title land from the YISA SULE FAMILY, the Defendants who are members of the same family have persisted in their threats to dispossess me of the land without any justification whatsoever.
17. I instituted this suit against the Defendants jointly and severally and in a representative capacity to seek the following reliefs from this Honourable Court:
(i) A DECLARATION that the land lying and being at OKOKOMAIKO VILLAGE measuring an area of 4139 square metres and more specifically described and delineated verged RED in Survey Plan NO. AAW/L/1013/81 dated 11/9/81 drawn by A.A.A. Williams (Licensed Surveyor) was validly sold to the Claimant by the YISA SULE FAMILY in 1981 subject to the Land Use Act 1978.
(ii) A DECLARATION that by the act of possession enjoyed and exercised by the Claimant since 1981, he is deemed to be the holder of the statutory right of occupancy on the land aforesaid.
(iii) AN ORDER or specific performance directing the Defendants (being the present Head and accredited representatives of YISA SULE FAMILY of OKOKOMAIKO) to issue a purchase receipt and execute all instruments in favour of the Claimant which would enable him to perfect and register the title to the land at the Lands Registry.
(iv) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their agents, privies, cohorts and representatives howsoever described from threatening the Claimant’s possession on the land and/or selling or trespassing on the land aforesaid.
18. That I swear to this affidavit conscientiously and in accordance with the Oath Act.”
The written statement on oath of the appellant (supra) is in consonance with the statement of claim contained in pages 3 — 6 of the record.
The appellant adopted the written statement on oath (supra) while testifying on oath in the case on 17.02.2016 vide page 303 of the record. The written statement on oath (supra) thus became the evidence of the appellant as the claimant at the Court below. The appellant tendered in evidence the survey plan of the parcel of land as Exhibit 1 and Exhibit 2, the statement to the police of the attorney of the 1st — 3rd respondents that sold the parcel of land to the appellant on behalf of the 1st — 3rd respondent.
The written statement on oath of the appellant (supra) which became evidence in the case was unchallenged or one-way. The Court below, however, dismissed the appellant’s case that he did not disclose the sum of money he had paid as purchase price for the disputed portion of land; that Exhibit 2 was uncertified and had no probative value, therefore the appellant should have called the maker of Exhibit 2 to testify in the case; and that the appellant did not prove possession. These were the four reasons given by the Court below for dismissing the appellant’s case.
Page 17 of the record contains the statement to the police of the attorney of the 1st — 3rd respondents’ family, a Mr. Hunponu-Wusu. It was tendered and admitted in evidence as Exhibit 2. It is a private document kept by a public officer or a government agency and is thus a public document within the meaning of Section 102(b) of the Evidence Act to the effect that a public document includes public records kept in Nigeria of private documents vide the case of Kwara State Water Corporation v. AIC (Nig.) Ltd. (2009) ALL FWLR (pt. 485) 1738 where the Court, for example, held inter alia that a private solicitor’s letter to the Ministry of Justice received and kept by the Ministry of Justice and thus accessible to the public as public record was a public document under Section 102(b) of the Evidence Act.
I have looked at the record in vain to see where the letter, Exhibit 2, was certified as required by Section 104 of the Evidence Act. I think certification of a public document is done by a certificate being written at the foot of the public document by the public officer in custody of the original of the document that it is a true copy of such document vide Nwabuoku v. Onwordi (2006) ALL FWLR (pt, 331) 1236; and such certification must be dated and subscribed to by a public officer in custody of the document with his name and his official title and a seal if the officer is entitled in law to make use of a seal. See Goodwill & Trust Inv. Ltd. v. Witt & Bush Ltd. (2011) ALL FWLR (pt. 576) 517 where the document of incorporation of a company was certified by the registrar of the High Court instead of the Registrar-General of Companies or an officer in the Corporate Affairs Commission (C.A.C.) which had custody of the original document of incorporation, the Supreme Court held that the registrar of the High Court was not competent, in the circumstances, to certify a certificate of incorporation issued by the C.A.C.
It appears settled that even where a copy of a public document carries the words “certified true copy” at the foot thereof with the date it was certified together with the name and official title of the officer in the custody of the document, as the certifying officer, such document would not qualify as a properly certified true copy which can be admissible evidence of its contents unless evidence of payment of fees or waiver of payment of legal fees in respect of the certification of the document is established as a condition precedent before the document would be legally admissible in evidence vide P.D.P. v. Sidi-Ali (2004) ALL FWLR (pt. 220) 1371, Tabik Investment Ltd. v. G.T.B. Plc (2011) ALL FWLR (pt. 602) 1592, Agbai v. INEC (2009) ALL FWLR (pt. 449) 594. See also the cases (supra) cited by the 4th respondent.
The time to raise objection to the admissibility of evidence or a piece of document is the time the document is being tendered in evidence. However, that does not mean the Court cannot expunge an inadmissible evidence wrongly admitted in evidence even at the time of judgment — Nigeria Social Insurance Trust Fund Management Board (Formerly, National Provident Fund Management Board v. Klifco Nigeria Limited (2010) 13 NWLR (pt. 1211) 307.
The document, Exhibit 2, though admitted in evidence, suffered from death-wounds for not meeting the above basic and fundamental statutory requirements of payment of certifying fees and its certification and was thus inadmissible in evidence, in any event, and was therefore rightly expunged by the Court below in part of its judgment (supra). See State v. Ajayi (2016) 14 NWLR (pt. 1532) 196 and the case of Fasade v. Babalola (2003) 4 S.C.N.J. 287 at 301 to the effect that improperly received evidence must be discountenanced even at appeal stage to ensure that the case is decided on only legally admissible evidence.
Had the appellant shown evidence of payment of the legal fees for certification of Exhibit 2, the statement of the attorney of the 1st – 3rd respondents’ family to the police, and the certifying officer refusing or neglecting to certify it and the appellant who was assisted by counsel at the Court below drew the attention of the Court below to the dereliction of duty of the certifying officer and requested for the document to be sent back to the officer for certification before tendering it in evidence then there would have been fertile and firm ground to allow the appeal on this score following Aribisala v. Ogunyemi (supra) cited by the appellant read with the judgment of His Lordship, Rhodes-Vivour, J.S.C., in Tabik(supra) as the said judgment did not contradict the lead judgment in that case but rather edified it.
Further, since it was not the case that the certifying officer frustrated the certification of the document upon payment of legal fees for its certification, or that the adverse party assisted the certifying officer to frustrate the certification after the appellant had done all that was required of him for the document, Exhibit 2, to be certified, the argument that the document should have been sent back for certification would have held ground.
With deference to the Court below, the maker of a public document such as Exhibit 2 could not have been called to give evidence after Exhibit 2, his statement to the police, was admitted in evidence as a public document and subsequently expunged by the Court below for non- compliance with Section 104 of the Evidence Act on certification of public documents. Because the only admissible secondary evidence of the public document, Exhibit 2, is a certified true copy of it and no other secondary evidence vide Section 104 of the Evidence Act.
Consequently, the oral recollection of the maker of Exhibit 2 with respect to the transaction contained therein, even if he had testified, would not have had evidential value as his statement to the police with respect to it which speaks for itself was admitted in evidence as Exhibit 2 but later expunged aright, in my opinion, by the Court below vide Comptoir Commercial & Ind. S.P.R. Ltd. v. Ogun State Water Corporation & Anor. (2002) 4 S.C.N.J. 343 at 356 – 357 to the effect that when a transaction has been reduced to or recorded in writing either by requirement of law, or agreement of the parties, the writing becomes, in general, the exclusive record thereof, and no other form of evidence may be given to prove the terms of the transaction except the document itself.
The appellant relied on the record in CA/L/411M/17 to contend in the reply brief that the disputed parcel of land is different and distinct from the piece of land claimed by the 4th respondent. The record compiled and transmitted for the present appeal does not incorporate the record of CA/L/411M/17. Parties and the Court are bound by the record of appeal as compiled and would not be permitted to stray outside it vide Garuba v. Omokhodion (2011) 15 NWLR (pt. 1269) 145.
Now, the record binding on the parties and the Court compiled and transmitted for the appeal stated what the Court below said in part of its ruling in page 314 thereof with respect to the identity of the disputed parcel of land thus –
“From the claims of the Claimant, it is evident that his allegations are based on the purported sale of the land in dispute to him by the Yisa Sule Family of Okokomaiko as represented by the defendants in 1981. The Applicants on the other hand claims interest on the same land from the same Family on a purported sale to him by the 1st Defendant in 2009 as well as the Certificate of Occupancy issued to him by the Lagos State Government in 2011. First of all, the allegation of the Claimant that all the documents on which the Applicant relies for the grant of this application were procured after the institution of this suit cannot be true merely because the Certificate of Occupancy and Letter of Allocation were so dated. The Letter of Allocation states that the Applicant had applied for the allocation by letter dated 28/05/09 and also the Survey Plan is of 2009, at least one year before the filing of this suit.
There is therefore no doubt that the subject-matter is the same; however, the question is whether this is sufficient reason to grant the joinder of the Applicant in this suit?”
The portion of the ruling of the Court below (supra) which was not appealed against and is thus extant settled or put paid to the contention of the appellant in his reply brief that the identity of the land is not the same as the one laid claim to by the 4th respondent.
The appellant relied on purchase of the disputed parcel of land as his radical root of title to the land thereto. The Court below did not have quarrel with the transaction being customary sale of land which is one of the recognized modes of proving title to land vide ldundun v. Okumagba (1976) 9 – 10 S.C. 227, Folarin v. Durojaiye (1988) 1 NWLR (pt. 70) 357.
Since the judgment of the Court below was not based on whether the customary sale was in the presence of witness(es), and whether the appellant was put in possession of the land by the vendor in the presence of witnesses and such issues not having been raised by way of cross-appeal, I decline to comment on them in obedience to the duty of the Court to confine itself to issues properly raised and argued before it.
The pivotal question in the appeal revolved on the holding of the Court below in part of its judgment contained in pages 323 to 324 of the record that there was no proof that consideration was paid by the appellant “either by a receipt or by an Agreement of Sale.”
Sale receipt or agreement of sale, though useful, is not the only method of establishing purchase of land under customary law as all that is required to establish title to land by purchase under customary law are the payment of purchase money coupled with entry into possession by the purchaser or vendee of the land and its continuous possession thereof by the vendee or purchaser which can also be attained/established by viva-voce or written evidence on oath videOjomu v. Ajao (1983) 9 S.C. 22, Orasanmi v. Idowu (1959) 4 F.S.C. 40
I find it in that wise imperative to gratefully copy the compelling words of His Lordship, Nnamani, J.S.C., (now of blessed memory), in the case of Ayinla v. Sijuwola (1984) 5 S.C. 44 at 76 – 77 thus –
“In that case it has been held that if a party received title to land under native law and custom and entered into possession, and the same vendor conveyed the land to another purchaser executing a deed of conveyance, a claim that the first party’s equitable interest was cut off by the latter bona fide purchaser would not be upheld. See Amao vs. Adebona (1962) L.L.R. 125. Further, if there is proof that money was paid for land coupled with an entry into possession, it is sufficient to defeat the title of a subsequent purchaser of the legal estate if the possession is continuously maintained. See T. A. Orasanmi v. M.O. Idowu (1959) 4 F.S.C. 40. More close to the contention here is the decision in Soremekun v. Shodipo (1959) L.L.R. 30 to the effect that if land is sold to a party without execution of a formal deed of conveyance his interest was no more than equitable. Legal estate of another party would be preferred to it if the party with the equitable interest is not in possession. All these cases appear to lay emphasis on possession. Even if it was an equitable interest, if it is coupled with possession it cannot be overridden by a legal estate. This principle accords with the decisions of the Privy Council in Oshodi Vs. Balogun & Ors 4. W.A.C.A. 1 at p.6 and Suleiman and Anor Vs. Johnson 13 W.A.C.A. 213. Whether land is sold under native law and custom or merely sold but without executing a formal deed, it seems to me that if the purchaser is in possession for a long time the equitable interest thus created cannot be superseded by a subsequent legal estate. In effect it matures into a legal estate.”
The Court below was therefore wrong to hold that the appellant should have produced purchase receipt or agreement of sale to prove title to the disputed portion of land by customary sale.
The unchallenged evidence of the appellant contained in his written statement on oath (supra) deposed in particular that after he purchased the disputed portion of land and was let into possession thereof by the vendor and had been in open and visible unbroken peaceful possession of it from the date of purchase in 1981 to 2008 (a period of 29 years), the 1st – 3rd respondents resorted to threat and force to dispossess him of the parcel of land if he failed to re-purchase it from them. When something is to be re-purchased, it grammatically means the ‘something’ is to be bought again or bought for the second time implying the ‘something’ had earlier been purchased. It follows that the appellant established title to the land in dispute by purchase and that the 1st — 3rd respondents, like the great writer Charles Dicken’s literary personage, Oliver Twist, wanted more after the first purchase was sealed 29 years ago for the appellant to re-purchase the disputed parcel of land all over again by arm-twist or by force or Viet armis through thugs sponsored by the 1st — 3rd respondents to enforce the greedy venture.
It is clear that had the appellant not paid the full purchase price the 1st — 3rd respondents would not have allowed the appellant to remain in peaceful possession of the disputed parcel of land for 29 years before the dispute arose. Definitely the 1st — 3rd respondents would have taken action or steps to protect their interest in the disputed piece of land within the said 29 years. Nor did the 1st — 3rd respondents take suit to challenge or interrupt the possession of the disputed land by the appellant to indicate their opposition to the appellant’s possession of the disputed portion of land, showing there was valid transfer of the land to the appellant by the attorney of the 1st — 3rd respondents’ family via customary sale or purchase.
The Court below was therefore wrong to hold that because the appellant did not produce receipt or agreement of sale the appellant failed to prove his case.
There was unchallenged evidence that the appellant upon being let in possession of the disputed parcel of land in 1981 as its purchaser erected a concrete wall fence secured with iron gate thereon before his possession thereof was interrupted by the 1st — 3rd respondents in 2008 who brought in thugs to seek to enforce re-purchase of the land by the appellant after an interval of 29 years since the purchase of the land in 2008 by the appellant.
The type of conduct which indicates possession of land therefore varies with the type of land. In other words, the nature of the land will indicate the character of possession vide Ayinde v. Salawu (1989) 3 NWLR (pt. 109) 297 at 316 – 317, Wuta-Ofei v. Danquah (1963) 3 ALL ER 596 at 600.
Erection of a fence or the planting of survey beacons or even pegs are said to be sufficient acts of possession of land videMajekodunmi v. Abina (2002) 1 SCNJ 106 at 123 following the cases of Wuta-Ofei v. Danquah (supra), Alatishe v. Sanyaolu (1972) 2 S.C. 97, Ajero v. Ugorji (1999) 10 NWLR (pt. 621) 1, read with the Supreme Court case of Ayinde and Anor. V. Salawu(supra) 297 at 318 following the Privy Council Case of Wuta-Ofei v. Danquah (supra) at 600.
Accordingly, I hold that on the state of the unchallenged evidence, the appellant had proved his case of declaration of title to the disputed parcel of land based on customary purchase of the said land in dispute vide Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352 at 363 – 364 following Nwabuoku v. Ottih (1961) ALL N.L.R. 487, Bello v. Eweka (1981) NSCC to the effect that the credible say-so or ipse dixit of a witness is enough to establish a land suit. The Supreme Court added in the case of Buraimoh v. Bamgbose (supra) at 364 following Mogaji v. Odofin (1978) 4 S.C. 91, that since civil cases are to be proved on the balance of probabilities, where there is nothing to put on the one side of the imaginary scale, minimum evidence (to the extent of discharging the burden of proof) on the other side satisfies the requirement of proof.
It is trite that only a member of the family can challenge the sale of family property. The appellant being a stranger or non-member of Yisa Sule Family, lacked the standing to challenge the sale of the disputed parcel of land to the appellant.
At any rate, the issue whether the parcel of land was sold without the consent of the members of the family was not agitated at the Court below. Being a fresh issue on appeal, same should have been raised with the leave of the Court first sought and had. It follows that the contention whether the family members consented to the sale of the disputed piece of land by their attorney to the appellant to validate the sale not being live issues at the Court below and the leave of the Court to raise and argue it having not been sought and obtained, cannot be countenanced.
In conclusion, I find the appeal meritorious and hereby allow it and set aside the decision of the Court below and enter in its place judgment for the appellant against the respondents in terms of the reliefs sought in paragraph 16 of the statement of claim contained in page 6 of the record.
The respondents shall pay N300,000 cost to the appellant.
BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother Joseph Shagbaor Ikyegh, JCA. I entirely agree with the reasoning and conclusion reached therein and I adopt same as mine.
The unchallenged facts and evidence placed before the trial Court and this Court showed that the Appellant was in physical possession of the land in issue for 29 years without a challenge from the Respondents. Such long period of possession coupled with the evidence that the Respondents suddenly woke up from their slumber to ask the Appellant to “re-purchase” the land from them deserved the intervention of this Court in the interest of justice. It is clearly a case of greed as was found by my learned brother. I therefore join him in allowing the appeal and I set aside the judgment of the trial Court. In its place I grant all the reliefs sought by the Appellant against the Respondents.
I abide by the order of cost made against the Respondents.
EBIOWEI TOBI, J.C.A.: I have been afforded in advance the privilege of reading in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA., and I am in consensus with my lord’s analysis of the issues thrown up for determination in this appeal. My learned brother has done a good job in critically and painstakingly going through the just determination of this appeal and as such I have nothing more to add. I also abide by the order as to cost.
Appearances:
Mr. A. Akinrinade For Appellant(s)
Mr. A. Adeyela for 1st, 2nd and 3rd Respondents
Mr. F. Kuti for 4th Respondent. For Respondent(s)
