ADAJI OJONYE v. ALHAJI SALISU IBRAHIM & ORS.(2001)

ADAJI OJONYE v. ALHAJI SALISU IBRAHIM & ORS.

(2001)LCN/1009(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of June, 2001

CA/K/68/98

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

ADAJI OJONYE Appellant(s)

AND

1.ALHAJI SALISU IBRAHIM
2. TENNISON SUNJUYE
3. NARI TENNISON SUNJUYE Respondent(s)

RATIO

THE PURPOSE OF FORMULATION OF ISSUES FOR DETERMINATION

The purpose of formulation of issues for determination in a brief of argument is to accentuate the real issue for determination before the court i.e, the issues in the grounds of appeal relevant to the determination of the appeal. Hence the issues must be within the purview of the grounds of appeal filed. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 and Ehot v. The State (1993) 4 NWLR (Pt. 290) 644. This means that an appeal court will refuse to consider and pronounce on an issue formulated for determination which does not arise from the grounds of appeal filed. Such issues will be deemed irrelevant and struck out: Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566. PER MUHAMMAD,J.C.A.

RABIU DANLAMI MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The 1st respondent herein i.e Alhaji Salisu Ibrahim was the plaintiff at the lower court. He instituted an action at the Kaduna State High Court claiming the following reliefs:-
(a) As against the 1st, 2nd and 3rd defendants a DECLARATION that he is the lawful owner of the right of Occupancy over plot and property known as No. Z. 12 Jaji road (also known as Z.5 Jaji Road) Abakpa Kaduna.
b) AN ORDER directing the 1st defendant to refund to the plaintiff the total sum of N46,800.00 (forty six thousand, Eight hundred naira) only being the rent at N100.00 per room, per month for the 16 rooms covering the period August, 1991 to August, 1994.
c) AN ORDER restraining the 1st defendant from collecting or further collecting any rents or dues or monies from the tenants of the house No.Z. 12 Jaji Road (Known as No. 25 Jaji Road) Abakpa Kaduna.”
It is only the 1st defendant, Adaji Ojonye, who is now the appellant that filed a statement of defence in which he denied all the claims and urged the lower court to dismiss the suit as it lacked merit and was an abuse of the court’s Process. The other two defendants did not participate in the trial. Evidence were adduced by both the plaintiff and the 1st defendant. The plaintiff testified and called four witnesses. The first defendant also testified and called four other witnesses. After considering the evidence adduced by both parties, the learned trial Judge made some specific findings and came to the following conclusion:-
“The final analysis of my various findings shows that the plaintiff has proved his case as laid down in section 135 and 136 of the E. A. cap 112 Laws of Federation of Nigeria, 1990 I find that he is entitled to judgment. Accordingly I enter judgment in his favour against the defendants in the terms of Paragraph 7 of the plaintiff’s statement.”
Dissatisfied with the judgment, the 1st defendant appealed to this court. He filed three grounds of appeal. On 21st October, 1999, he filed a motion on notice to amend the notice and grounds of appeal by filing additional grounds of appeal. This motion was however withdrawn and struck out on 24th January, 2000. The grounds of appeal as contained in the notice of appeal are:-
“1. That the honourable court erred in law by granting relief that was not pleaded.
PARTICULARS:
a) That the plaintiff did not plead arrears of rents but only prayed the court to grant same in paragraph 7 and nothing more. Since the plaintiff did not plead arrears of rents and any evidence given in that regard goes to no issue.
2. That the honourable court erred in law when it held that the first defendant should pay rent arrears to the plaintiff when the plaintiff abandoned that relief in his evidence.
3. That the honourable court erred in law when the court admitted exhibit pleaded in paragraphs 5 and 6 and LANDS under section 15 of the Registration Law makes the said exhibit inadmissible.”
On the 3rd of July, 2000, this court granted the appellant extension of seven days within which to file his brief of argument. The said brief was filed on 4th July, 2000. The respondents were served with the appellant’s brief but they failed to file their own brief on the day the appeal was fixed for hearing i.e. 15th May, 2001, neither the respondents nor their counsel was in court even though they were served with the hearing notice. Up till that day they did not file their brief of argument. Mrs. Omoloba, learned Counsel for the appellant, therefore applied to the court to hear the appeal on tile appellant’s brief alone and in the respondent’s absence since they were served but refused to come to court and no reason was given for their absence. The application was granted. She then adopted the appellant’s brief of argument in its entirety and urged the court to allow the appeal.
Two issues were identified for the determination of the appeal in the appellant’s brief. The issues are:
“(1) Whether there was a statement of claim before the court upon which it relied to determine the case.
(2) Whether Exhibit 1 and 3 (power of attorney and sales agreement) which was not registered under the Lands registration law can be admitted and relied upon by the court.”
An issue for determination in an appeal must be formulated in concrete terms and must relate and arise from the ground or grounds of appeal filed and should be of such a nature that a decision on it one way or the other must affect the result of the appeal. See A. -G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645.

The issue for determination which is:- “Whether there was a statement of claim before the court upon which it relied to determine the case does not arise from the grounds of appeal filed. It is irrelevant to the determination of this appeal. It is hereby struck out and the argument thereon discountenanced.

We are now left with the second issue which is whether Exhibit 1 and 3 which were not registered under the Lands Registration Law, can be admitted and relied upon by the court. It was submitted that by virtue of S.15 of the Land Registration Law of Kaduna State any instrument that is to transfer land from one person to another, must be registered and the absence of such registration made the instrument inadmissiable in evidence. The decision of Supreme Court in Oredola Okeya Trading Co. v. A.-G., Kwara State (1992) 7 NWLR (Pt. 254) 412, 9 SCNJ 13 was referred to. It was further submitted that since the power of attorney and the sales of agreement were wrongly admitted because they were not registered, the court was wrong to have acted upon them and urged the court to reject the findings based upon the said exhibits.
S.15 of the Land Registration Law, Cap. 85, Laws of Kaduna State, 1991 provides:-
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.”
“Instrument” is defined in section two of the said law as:-
“a document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
The two exhibits in question, exhibits P3 and P4 i.e. the sales agreement and the power of attorney qualify as instruments under the Land Registration Law of Kaduna State. They are registrable. Since they have not been registered, they can neither be pleaded or given in evidence. Even where they are pleaded, they should be ignored. Where a document is wrongly admitted in evidence without registration, it should be expunged from the record. See Ojugbale v. Olasoji (1984) 4 SC 31; Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598 and Omoni v. Big Tom (1991) NWLR (Pt. 195) 93. In Oredola Okeya Trading Co. v. A.-G., Kwara State (1992) 7 NWLR (Pt. 254) 412 Ogundare JSC stated at page 424:-
“Exhibit 1 was never registered and it is the contention of the learned counsel for the defendants/respondents that it is therefore inadmissible in evidence. Section 15 of the Land Registration Law of Northern Nigeria is applicable to the present proceedings. I have already held that Exhibit 1 is an instrument. It is not in dispute that it was never registered. Therefore it should not have been admitted in evidence and having been wrongly admitted in evidence, the learned trial Judge was right in expunging it from the record.”

In our present case, the trial Judge not only admitted the documents, he relied on them to arrive at his decision. See page 45 of the records where the trial Judge stated in his judgment:-
“Exhibit P3 and P5 the agreements signed by the plaintiff and PW3 strengthens the evidence of the purchase.
The power of attorney, exhibit P4, in favour of the PW3 established the authority and competence to sell the house. Thus, the power of attorney expected by the 2nd defendant in favour of PW3 and in respect of the house in dispute empowered her among other things, to “execute and do all acts and things as fully and (sic) effectically in all respects” as the 2nd defendant could do personally.
From the above, analysis, two things have been fully established.
Firstly, that the 2nd defendant owned the house. Secondly, that by virtue of the power of attorney to favour of PW 3, his daughter was competent to sell the house. Fully established is that the plaintiff has purchased the house from PW3.”
The learned trial Judge wrongly construed the import of S.15 of the Land Registration Law and as such came to a wrong conclusion. In interpreting the said section he jettisoned the canons of interpretations of a statute, by considering matters that have no relevance to the Law. Instead of relying on the said exhibits, he should have expunged them from the record. My answer to the issue is therefore in the negative. The two exhibits are not registered, as such they cannot be admitted and relied upon by the court.
The appellant filed three grounds of appeal. He formulated two issues for the determination of the appeal. One of the issues for determination was struck out because it did not arise from any of the grounds of appeal filed. The remaining issue for determination relates to ground three only. It therefore follows that grounds one and two of the notice of appeal are not covered by any issue for determination. Where no issue is formulated on a ground of appeal that ground of appeal must be considered abandoned. See Atunrase v. Philips (1996) 1 NWLR (Pt. 427) 637; Dile v. Iwuno (1996) 4 NWLR (Pt.445) 622 and Effiong v. State (1998) 8 NWLR (Pt. 562) 362.I therefore hold that grounds one and two are abandoned.

Since I have held that the learned trial Judge wrongly admitted and relied on the sales agreement and the power of Attorney, the appeal succeeds. In the appellant’s brief, it was stated that the appellant filed his statement of defence and counter-claim. I have very carefully gone through the record and I could not find any counter-claim filed by the appellant. Also there was nowhere in the judgment where the trial Judge considered any counter-claim. The appeal is allowed. The judgment of the lower court is set aside. The appellant is entitled to cost which I assess at N2000.00.

ISA AYO SALAMI, J.C.A.: I read, before now, in draft, the judgment just delivered by my learned brother Rabiu Danlami Muhammad, JCA and I agree with the reasoning and the conclusion contained therein.
Exhibits P3 and P5, are agreement signed by the parties and Exhibit P4, the power of attorney are instruments which affect interest in land. They are therefore, registrable by virtue of section 15 of the Land Registration Law of Kaduna State of Nigeria Cap. 85 of the Laws of Kaduna State of Nigeria, 1991. It is incontestable that being registrable and having not been registered, they cannot be pleaded nor admitted in evidence. Where they have been inadvertently admitted they should be expunged. Owoeye Eso & Others v. George Okere Adeyemi & Others (1994) 4 NWLR (Pt. 340) 558.
The learned trial Judge rather than expunging the documents reasoned mundanely as follows:-
“Having the special circumstance of this case in mind and considering Exhibit P5 in particular, I find that the documents in question can be relied on and acted upon. In the interpretation of section 15 we must adopt liberal approach. We must be practical and functional having in mind the experience we have in getting documents registered. It takes time to obtain consent of the Government in land transactions. And agreement executed meanwhile cannot necessarily be irrelevant.”
The reasoning set out above is not open to the learned trial Judge because where the words of a statute are clear extraneous matter would not be read into its interpretation vide J. S. Olawoyin v. Commissioner of Police (1962) 1 SCNLR 210 (1962) NNLR 29. The learned trial Judge was, therefore, in serious error when he took into account extraneous matter. The exhibits, that is P3, P4 and P5 affect interest in land and are inadmissible and having been admitted in error they are hereby expunged. Since they formed the pillars of the respondent’s claim, the claim fails and it is dismissed by me.
For the reasons set out in the judgment of my learned brother Muhammad, JCA, I also allow the appeal and abide by all the consequential orders including the order as to costs contained in the lead judgment.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: On the day fixed for hearing of this appeal, and after several adjournments, the respondent failed, or refused to file the respondents’ brief of argument to the appellant’s brief filed on 4/7/00. Following this, upon an application by the appellant, he was allowed to argue the appeal under the provisions of Order 3, rule 26 of the Court of Appeal Rules as amended in 1984. The appellant formulated two issues from the grounds of appeal filed by him. Here are the issues:
(1) Whether there was a statement of claim before the court upon which it relied to determine the case.
(2) Whether exhibits 1 & 3, (power of attorney and sales agreement) which was not registered under the Lands Registration Law can be admitted and relied upon by the court.”
The facts of the case in the court below commenced in the writ of summons filed in the Kaduna State High Court issued by the plaintiff on 23/8/94, this date being the date the Registrar signed the writ for service outside the jurisdiction of the court. The endorsement on the writ is as follows:
“Whereof the claim as against the 1st, 2nd and 3rd defendants, a declaration that he is the lawful owner of the right of occupancy over plot and property No. 2 Jaji Road, Abakpa Kaduna, on the 20th August, 1991.
(2) An order directing the 1st defendant to refund to the plaintiff the total sum of N46,800.00 only being the rent at N100, per room, per month for the 16 rooms for the period August, 1991 to August 1994.
(3) An order restraining the 1st defendant from collecting or further collecting any rent or dues or monies from tenants of the house No. 12 Jaji Road, Abakpa Kaduna.” The printed record shows that the statement of claim in the suit is dated 13th February, 1995.
In a motion dated 6th June, 1995, the defendant sought the leave of court, which enabled him to file his statement of defence on 17th May, 1996.
In the interest of clarity since the issue on appeal is on the validity of the statement of claim, I here state the sequence of the filing of documents. The writ of summons in this suit was filed on 28/3/94. The statement of claim is 13th February, 1995, the statement of defence was filed on 17/5/96. After receiving evidence oral and documentary in the suit the trial court delivered judgment there on 6/3/97 and ruled thus:
“The final analysis of my various finding shows that the plaintiff has proved his case as per laid down in section 135 and 136 of the E.A. Cap. 112, LPN 1990, I find that he is entitled to judgment. Accordingly, I enter judgment in favour against the defendants in the terms of paragraph 7 of the plaintiff’s statement.”
It is because the defendant was dissatisfied with the above decision that he filed the three grounds of appeal, upon which the issues stated above are founded. The two issues complain in issue 2 of the inadmissibility at trial of the documents tendered by the plaintiff/respondent, while issue one complain of the absence or lack of a statement of claim before the court. The complaint of the documents which are said to be inadmissible are pleaded in the statement of claim which is alleged not to be valid before the court on the day of trial. If therefore it is proved that the statement of claim dated 13/2/95 is proved to be filed without the leave of court and it is struck out. The issue 2 also is determined. Any comment thereon are simply academic.
In his brief, the appellant submitted that the statement of claim filed on 13/12/98 was filed six months after without the leave of court. The appellant argued that this is no contravention of the High Court Civil Procedure rules. In the absence of the leave of court, any statement of claim filed six months after the writ of summons was filed is not valid before the court. Evidence tendered in court therefore goes to no issue.
It is also the submission of the learned counsel to the appellant that the judgment of court delivered thereon is a futile exercise as there was no claim before the court. He urged the court to set aside the said judgment. Order 24 r.1 of the High Court Civil Procedure rules Kaduna state prescribes a period of not less than 30 days after the defendant has entered an appearance in the suit, unless it is a claim for land, where the plaintiff is required to file his statement of claim 60 days after the defendant has entered appearance in the suit. In the instant appeal, the plaintiff/respondent in the court below claim from the defendant appellant a declaration that he is the lawful owner of the plot and property at No. 12 Jaji Road, Abakpa, Kaduna and for the incidents thereto. The period within which the plaintiff in the court below should have filed the statement of claim, after the 1st defendant had entered an appearance was 60 days. There is no evidence in the printed record that the 1st defendant entered an appearance in the proceedings. There is only a record of the application of the 1st defendant/appellant out of three defendants who applied for extension of time to file a statement of defence. The record does not show that the application was granted. The application is dated 17/5/95 and filed on 6/5/96.
In his judgment the trial court recorded that the statement of defence of the 1st defendant was filed on 17/5/96. It is not in doubt that the statement of claim was filed on 13th February, 1995, and the writ of summons was filed on 23/8/94. Clearly, there is an inordinate delay which is more than 60 days even as there is no record of entry of appearance of the 1st defendant. The leave of court is necessary before the plaintiffs statement of claim can be said to be valid before the court see Order 26, of High Court (Civil Procedure) rules. However, Order 2 rule 1 of the Kaduna State High Court (Civil Procedure) rules provide inter alia as follows:
“Where at any stage in the course of or in connection with any proceedings there has by reason of anything done, or left undone been a failure to comply with the requirements of these rules, whether in respect of time, place, manner form or content the failure shall be treated as an in regularity, and if so treated will not nullify the proceedings or any document or judgment or order.”
When the provisions of Order 26, rule 1 above is applied in respect of failure to comply with prescribed time, the proceedings and judgment will not be nullified, because the document, the statement of claim will be treated as being validly before the court, since the failure to comply with the prescribed time will be an irregularity. In this appeal, I apply the provision of Order 26, rule 1, of the Kaduna State (Civil Procedure) Rules to the complaint contained in the appellants’ issue one and treat as mere irregularity the long delay or failure of the appellant to file his statement of claim within time. I rule that there existed before the court, plaintiffs claim as stated in the plaintiffs’ statement of claim and further rule that the judgment of the court below is valid.
In issue 2, the appellants asked whether exhibits 1 & 3 i.e. the (power of Attorney, and the Sales agreement) which are not registered under the Lands Registration law can be admitted and relied upon by the court? The simple answer is No.
The two documents tendered at the hearing are registrable instruments or documents under the Land Registration Law Kaduna State. Without registration of these documents neither of the documents can support any proof of its contents. It is wrong in law to admit the document as exhibits. There is no proof of the contents of the exhibits, they fail to prove the claim and the plaintiff should have failed in the court below and the appeal against the judgment succeeds. I agree with the conclusions of my learned brother Muhammad, JCA, that this appeal should succeed and I abide by the consequential order for costs made in the lead judgment.
Appeal allowed.