MRS. GLADYS APPAH V. MRS. CHINYERE EGWUATU (2012)

MRS. GLADYS APPAH V. MRS. CHINYERE EGWUATU

(2012)LCN/5746(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/OW/187/2010

RATIO

EVIDENCE: THE PRINCIPLE GOVERNING THE ADMISSIBILITY OF UNREGISTRABLE INSTRUMENT

The principle governing the admissibility of unregistrable instrument is that, while generally an instrument affecting land shall not be pleaded or given in evidence unless it is registered, a registrable instrument which has not been registered is admissible to prove an equitable interest and to prove payment of purchase money or rent. See Tella vs. Usman (1997) 12 NWLR (PT.531) 168, In other words, where a purchaser of land is in possession of land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor, then the purchaser has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Alhaji Idris Alaya vs. Pastor J.A. Akinduro (1998) 4 NWLR (PT. 545) 311.

RELIEF: REQUIREMENT FOR PLAINTIFF SEEKING A DECLARATORY RELIEF

A plaintiff who is seeking a declaratory relief such as in this case, must show that he has an interest or right which forms the foundation or basis for that declaration. It is that right or interest that the Plaintiff seeks to protect. See Olawoyin vs. Attorney-General Northern Nigeria (1961) 2 NSCC 165 at 169 at Pg. 3320 and Page 333AB. But if the defendant is able to discharge by evidence oral or documentary, the evidence of the Plaintiff, then the plaintiff’s claim to declaration of title will be dismissed. See Ogundairo vs. Okanlawon & Ors (1963) 1 ALL NLR 364 cited with approved in Awomuti vs. Salami (1978) 35 SC 105 at Pages 115 & 116 (Pages 89 lines 36 – 40).

The Court has a discretion to grant or refuse to grant a declaration of title to land, and the success of the claimant would in such an action depend entirely on the preponderance of evidence adduced before the Court. PER UWANI MUSA ABBA AJI,J.C.A

EVIDENCE: WHETHER A SURVEY PLAN IS A SINE QUA NON TO PROVE OWNERSHIP OF LAND

A survey plan simpliciter is not in all cases a sine qua non to prove ownership of land, but some descriptions is necessary to make a disputed land ascertainable to avoid speculations. See Sokpui II vs. Agbozo III 13 WACA 241 and Akpagbue vs. Ogu (1976) 6 SC. 63. PER UWANI MUSA ABBA AJI,J.C.A

EVIDENCE: WHETHER A PLAINTIFF MUST SUCCEED ON THE STRENGTH ON HIS CASE

A Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant. See Kodilinye vs. Odu (1935) 2 WACA 336 and Judes vs. Adani (1980) 5-7 5C 96. PER UWANI MUSA ABBA AJI,J.C.A

EVIDENCE: EFFECT OF UNCONTROVERTED EVIDENCE

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

MRS. GLADYS APPAH Appellant(s)

AND

MRS. CHINYERE EGWUATU Respondent(s)

UWANI MUSA ABBA AJI,J.C.A: (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Owerri, Imo State delivered by Hon. Justice C.M.I. Egole on 19th January, 2009 in Suit No. HOW/300/2006 dismissing the Plaintiffs Claim in its entirety and striking out the Defendant’s Counter Claim.
By a writ of Summons filed on 9th June 2006, the Plaintiff/Appellant claims the following reliefs from the Defendant/Respondent as follows:
(i) A declaration that the Plaintiff is entitled to the Statutory Certificate of Occupancy in respect of the portion of land owned by her late husband Mr. Gregory Appah at No. 5 Christ Church Road, Owerri inclusive of the 7 stores (which the said No.3 lock-up store is one) built by her late husband therein.
(ii) The sum of N750,000.00 (seven hundred and fifty thousand Naira) being damages for trespass on the plaintiff’s No. 3 lockup store by the Defendant.
(iii) An Order vacating the Defendant and anyone, whosoever, staying in the said No. 3 lock up store as her agent, tenant sub-tenant or in any manner whatsoever, claiming through her since the Defendants continued stay and challenge of the plaintiff’s title has become inimical to the interest and rights of the Plaintiff.
(iv) Perpetual Injunction restraining the Defendant, her Agent, Assigns, Tenants or Subtenants and any person whosoever claiming through her, from further acts of trespass into the said No. 3 lockup Store and any portion of land at No. 5 Christ Church Road, Owerri.”
The Plaintiff’s writ of summons was accompanied by statement of claim. The Defendant filed a statement of defence dated 20th October, 2006 and deemed filed and served on 7th February, 2007. The Plaintiff filed a reply to defendant’s statement of defence dated 19th February, 2007 and filed on same date. The defendant filed a counter claim dated 11th April, 2007 and filed on the same date.
The facts leading to this appeal may be summarized as follows:
The Plaintiff was the widow of the late Gregory Appah who died in 2001. He had a grandmother – Mrs. Matilda Mmanya Appah who was married to Mr. Appah with whom she bought the land (now known as No. 5 Christ Church Road) from Anukam family of Umuororonjo in Owerri in the 1930s. This land then remains their family compound. Matilda Mmanya and her late husband begat Bridget Appah and Mariana Appah both of whom were left to procreate in the family compound for Mr. Appah family. Both had children. The family compound was shared between the household of Bridget Appah and Mariana Appah.
The Plaintiffs late husband Gregory Appah was one of the children of Bridget Appah, built 7 lock up stores on a part of his share of the land which is part of No. 5 Christ Church Owerri in 1984. He put six tenants as monthly and yearly tenants. Mr. Bartholomew Egwuatu now deceased was the husband of the Defendant who was a tenant in respect of No. 3 lock up store thereat.
The Plaintiff alleged that their existed a long term lease of eight years and four months between her late husband and the husband of the Defendant and that the husband of the Defendant died before the expiration of lease. Upon the death of the Defendants husband,the Defendant continued to be enjoying the lease. The Defendant denied the existence of any lease agreement and claimed it was outright sale evidenced on an irrevocable Power of Attorney with consideration executed between her late husband and the husband of the Plaintiff.
After series of exchange of letters between the parties, when the parties could not agree on this issue, Plaintiff instituted the present action. The Plaintiff testified and called one witness and tendered 14 Exhibits while the Defendant testified on oath but did not call any witness but tendered documentary exhibits. In a considered judgment, the Learned trial Judge dismissed the claims of the Plaintiff on the ground that she has not proved her case and the Defendant has an equitable interest in the subject matter by virtue of the Power of Attorney executed and struck out the Counter claim of the Defendant as it was deemed abandoned.
Being dissatisfied with the judgment of the trial Court, the Plaintiff/Appellant who shall be referred to as Appellant filed her notice of appeal dated the 2nd day of March, 2009 and filed on the 3rd March, 2009 upon seven grounds of appeal.
See pages 99 to 107 of the record of appeal. As it is the practice, parties have filed and exchanged briefs of argument. The Appellant’s brief of argument dated 10th August, 2010 and filed same day was settled by Francis O. Obiefule, Esq., while the Respondent’s brief filed on 9th May, 2012 was settled by Chief Obi, Esq. In the Appellant’s brief, the following issues were distilled for determination:
(1) Whether the trial Court was right in admitting and acting upon Exhibit D14 an unregistered power of Attorney in reaching its judgment.
(2) Whether Exhibit D14 deserves the type of weight attached to it by the trial Court’
(3) Whether survey plan is a mandatory requirement in all cases where declaration on the entitlement to certificate of occupancy is sought as in the instant case.
(4) Whether the trial Court was right in relying on figures which were not given in evidence or on speculation to come to the conclusion that the nature of the transaction between Appellant’s husband and Respondent’s husband was not a long term lease.
(5) Whether the trial Court was right in Law in assuming that the Respondent acquired equitable interest in the store in question upon the execution of Exhibit D.
(6) Whether the trial court was not bound to accept the uncontroverted evidence of the appellant that the lease agreement evidencing the transaction between her husband and Respondent’s husband was destroyed by fire.
(7) Whether the case of Ezechukwu vs. Onwuka (2005) ALL FWLR (PT. 280) PG. 1517 relied upon by the trial Court is applicable to this case.
The Learned counsel for the Defendant/Respondent now simply referred to as Respondent having regard to the grounds of appeal and the issues formulated by the Appellant Counsel therefrom, adopted the 7 issues for determination formulated by the Appellant in his brief of argument dated 10th August 2010 and filed same day.
At the hearing of the appeal on the 17th October, 2011, Learned Counsel Chief E.T.C. Ogbusu, Esq. adopted and relied on the Appellant’s brief of argument dated and filed on the 10/8/2010 and urged the Court to allow the appeal. The Respondent’s counsel C.C. obi, Esq. adopted and relied on the Respondent’s brief of argument dated and filed on the 9/5/2012 and urged the Court to dismiss the appeal.
This appeal will now be determined on the bases of the issues submitted by the Learned Counsel for the Appellant. For the purpose of, convenience and precision issues number 1, 2, 5 and 7 will be considered jointly. Thereafter, issue number 3 and finally, issue numbers 4 and 6 will be considered.
Issue Nos. 1, 2, 5 and 7
1. Whether the trial Court was right in admitting and acting upon Exhibit D14 an unregistered power of Attorney in reaching its judgment.
2. Whether Exhibit D14 deserves the type of weight attached to it by the trial Court.
3. Whether the trial Court was right in law in assuming that the respondent acquired an equitable interest in the stored in question upon the execution of Exhibit D.
Issue No.7
Whether the case of Ezechukwu vs. Onwuke (2005) ALL FWRL (PT 280) 1517 relied upon by the trial Court is applicable in this case
In arguing the issues, learned counsel for the Appellant Mr. Obiefule, Esq. strongly contended that Exhibit D14 tendered in evidence by the Respondent to prove her ownership of No. 3 Luck-up Store at No. 5 Christ Church Road, Owerri, Imo state was a Power of Attorney/Land instrument which was registrable but was not registered and as such not admissible in Court by the provisions of Section 15 of the Land Instruments Registration Law of Eastern Nigeria applicable in Imo State, which provides thus:
“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered.”
He submitted that in the Land Instrument Registration Law of Eastern Nigeria Section 2 thereof, “instrument” means a document affecting land in Eastern Nigeria whereby one party (hereinafter called the grantor) confers, transfer, limits, changes or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in Easter Nigeria and a Certificate of purchase and Power of Attorney under which any instrument may be executed but not a will.
Learned Counsel submitted that the trial Court ought not to have admitted the said Exhibit D14 which the Respondent tendered to prove her ownership of the said No. 3 lock up store. He referred to Ogbimi vs. Niger Construction Limited (2006) 7 MJSC Pg 154 at Pg 156-157 to submit that going by Section 15 of the Land Instrument Registration Law of Eastern Nigeria, an unregistered instrument is inadmissible in evidence and where it is erroneously admitted, it is subject to be set aside.
Learned Counsel further submitted that, it is trite law that inadmissible evidence cannot be admitted even with the consent of the parties and is always liable to be expunged from the Court’s record. He thus submitted that Exhibit D14 which is an inadmissible evidence under the law was wrongly admitted and therefore liable to be expunged from the courts record. He cited the cases of Ayanwale & Ors vs. Atanda & Anor (1988) 1 SC 1 at 20 and Agbi vs. Ogbe (2006) 7 MJSC PG 1 at PG 7 any piece of evidence which slips into the records without passing the test of admissibility in not legal evidence and is liable to be expunged even if admitted by consent.
He also cited Saidu vs. The State (1982) SC 41.
Learned Counsel further argued that the Learned trial Judge upheld the Appellant’s counsel submission that Exhibit D14, the alleged power of Attorney was not registered being a registrable instrument, it ought not to have been admitted in evidence. The Learned Counsel contended that upon finding and holding the above correct position of the Law, the only option open to the trial Judge was to expunge the disputed Exhibit D14 from the courts record. He cited the case of Okonji vs. Njokanma (1991) 7 NWLR PT 202 PG 131 SC at PG 134 to submit that a trial Court must reject any inadmissible evidence and decide the case on legal evidence.
He also relied on the case of Buhari vs. INEC (2009) ALL FWLR (PT 459) Pg 419 at Page 405.
It was the further contention of the Learned Counsel for the that both the Respondent’s pleadings, counter-claim and evidence, were claiming ownership of the said No. 3 lock up store, but that her counter claim was struck out on 19/1/2009 the day judgment was delivered. He then submitted that the trial Court on its own canvassed a case of equitable interest in favour of the Respondent who all through her pleadings, evidence and counter claim was an outright ownership of the said No. 3 lock up store and tendered the disputed Exhibit D14 to prove same. This position of the trial Court, according to Learned Counsel is against the rule of Law that Court should not make a case for a party in a matter. He relied on the case of Trade Bank Plc vs. Delemorenikeji (Nig.) Ltd (2005) 6 NWLR (PT 921) Pg 309 at 315.
Learned Counsel further argued on this point that even if Exhibit D14 upon which the trial Judge mainly based his decision was admissible in Law, the learned trial judge ought not have attached any single weight to it as its authenticity was seriously attacked, affected and completely doubtful for the reason that:
(a) The only person living and purported to have signed it as a witness gave evidence on oath as PW1 that she never signed it.
(b) The signature of late Gregory Appah (husband of the Plaintiff/Appellant) purported to have signed Exhibit D14 was not the same with the signature of the said Gregory Appah on Exhibit D1 which was in evidence before the Court.
(c) Exhibit D before the Court which was a mere tenancy agreement between late Gregory Appah (husband of the Plaintiff) as landlord and late Bartholomew Egwuatu (husband of the defendant) as tenant/leasee had up to six witnesses with three persons on either side but Exhibit D14 which was a purported irrevocable Power of Attorney evidencing sale of land had only one witness for the purported donor and none for the donee when, it should have had enough witnesses if any such transaction ever took place.
(d) PW2 Obilobi Albert Ozuzu Ajoku gave uncontroverted evidence that by the custom and tradition of Umuororonjo where No. 3 lock up store is situate, there is customary rites performed upon the sale of any land within the Community and no such customary rites was performed over the said No.3 lock up store. He equally gave evidence that No. 3 lock up store was not sold and the Plaintiff made rightful claims in the Suit.
(e) DW1 i.e. the Defendant herself during cross-examination gave evidence that DW2 was always there when anything happened in the family. This clearly implies that if there was sale of No. 3 lock up store which was situate within the family compound of Appah, PW2 will be there and would be totally aware of such and would have witnessed the document of sale. PW2 himself was a witness in Exhibit D1 tendered by the Defendant which was an agreement over the said No. 3 lock up store.
Learned counsel further submitted on this point relying on the case of Ojibah vs. Ojibah (1991) 5 NWLR (Pt, 191) 296 at page 301 ratio 687 that a document which is not shown to be genuine and legal is of no forensic value and no right can be hoisted upon it.
The only witness according to learned counsel, who purported to have signed exhibit D14 is the Plaintiff who gave evidence on Oath that she never witnessed Exhibit D14. It is his view that trial Court ought not to have attached any weight to the said Exhibit D14 and thus erred in law to have held that by Exhibit D14, the Respondent had equitable interest in No. 3 lock up store in dispute and dismissed the Appellant’s claim. He cited G. CHITEX IND. LTD. vs. O.B.I. (NIG.) LTD (2005) 14 NWLR (Pt. 945) page 393 at 399 to submit that where the maker of a document does not give evidence in support ‘ of it, no weight will be attached to the document.
He finally submitted on these points that going by the uncontroverted evidence of DW2 – Obilobi Albert Ozuzu that no customary rites of sale of No. 3 lock up store was ever performed contrary to established custom of Umuororonjo where the said No. 3 lock up store is situate is enough in law to make the trial Court not to attach any weight to Exhibit D14 as uncontroverted evidence is deemed in law as correct and proof of the fact in issue. He cited the case of Osakwe vs. Governor of Imo State (1991) 5 NWLR (Pt. 191) page 318 CA at page 324 Ratio 8. The Court was urged to resolved the issues in favour of the Appellant.
I have perused the brief filed by the learned Counsel for the Appellant and the entire argument contained therein, Issue No. 5 was not argued by Counsel. The Issue reads thus:
“Whether the Trial Court was right in law in assuming that the Respondent acquired equitable interest to the Store in question upon the execution of Exhibit D.”
This Issue is therefore deemed abandoned and is hereby struck out.
In response to the arguments and submissions of learned Counsel to the Appellant on Issue Nos. 1 and 2, Learned Counsel for the Respondent Mr. Obi Esq., submitted that it is trite law that admissibility of an unregistered registrable instrument depends on what it is being pleaded, that is, whether it is being tendered to prove legal title or equitable interest; payment of purchase price, receipts and acts of ownership and possession. Learned Counsel referred to paragraph 5(g) of the Respondent’s Statement of Defence to submit that the Respondent pleaded Exhibit D14 to show acts of ownership and possession and gave evidence in line with the pleadings.
Taking a look at Issue No, 2, the learned Counsel for the Respondent succinctly urged the Court to hold that Chinyere Egwuatu has an equitable interest over No. 3 lock up store and that the trial Court could have ordered specific performance as the relief was not sought. He relied on the following cases: Akinduro vs. Alaya (2007) 6 KLR (PT 239), 2569, Agbobike vs. Onyekaba (2001) FWLR (Pt. 62) P.1915), Awaogbo vs. Eze (1995) 1 SCNJ 157 at 168, Atufe vs. Oghomienor (2004) ALL FWLR (Pt. 224) 2063. In line with these authorities, Learned Counsel submitted that Exhibit D14 was properly admitted not to prove legal title but to show the Respondent’s equitable interest, act of ownership and possession in No. 3 lock up store at No. 5 Christ Church Road, Owerri.
Learned Counsel submitted that objection to admissibility of a document on appeal can only be entertained if it is document which is inadmissible in any event and in such a situation failure to object to the admissibility of such a document at the trial Court does not debar a person from raising the objection on appeal. He however maintained that Exhibit D14 by the authorities of Awaogbo vs. Eze (Supra) and Atufe vs. Ogbomienor (Supra) is admissible under certain condition to prove acts of ownership and possession, payment of money and equitable interest. He submitted that the cases of; Ogbimi vs. Niger Construction Ltd. (Supra); Ayanwale & Ors. vs. Atanda & Anor. (Supra); Okonji vs. Njokanma; Buhari vs. INEC; and Trade Bank Plc. vs. Delemorenikeji (Nig.) Ltd. (Supra) relied upon by the Appellant’s Counsel do not apply to the facts and circumstances of this case. He urge the Court to resolve issues 1 and 2 in favour of the Respondent.
In arguing issue No. 7 which is whether the case of Ezechukwu vs. Onwuka (2005) ALL FWLR (PT 280) 1517 relied upon by the trial Court was applicable to this case, Learned Counsel submitted that the case does not have the same facts with the present case to hold that the Plaintiff signed Exhibit D14. It is submitted that the Appellant who was alleged to have witnessed Exhibit D14 testified on oath that she never signed Exhibit D14 as alleged and that the document was fabricated, yet the Court held that she signed Exhibit D14 relying on Ezechukwu vs. Onwuka’s case by comparing PW1’s signature on Exhibits P4 and P5.
He submitted that the case of Ezechukwu vs. Onwuka upon which the trial Court relied upon to hold that the Appellant signed Exhibit D14 are not the same with that of the present case in that:
(1) In the case of Ezechukwu vs. Onwuka the Court never had the opportunity of hearing the testimony on oath of the person whose signature was compared, unlike in the present case where there was testimony on oath refuting signing Exhibit D14.
(2) There are other facts before the trial Court surrounding Exhibit D14 over which the comparison was made that put the authenticity of Exhibit D14 seriously in doubt. For instance, the other signatures of the alleged donor and donee do not look alike with their signature on Exhibit D1 which was as well before the Court but the Court never adverted its mind to them.
He submitted that, before the decision in a case becomes a precedent for subsequent case, the facts and issues for determination in the cases must be similar. He placed reliance on the cases of Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR PT.109 (PT.25) at pages 259 – 260, Clement vs. Iwuanyanwu (1989) 3 NWLR (PT.107) Pg.39 at Pg. 45.
Learned Counsel further submitted that the wrong position of the law adopted by the trial Court made it arrive at the wrong decision of dismissing the Appellant’s claim. The Court was urged to resolve this issue in favour of the Appellant and to hold that she is entitled to the reliefs sought in the appeal.
In his response, Learned Counsel for the Respondent submitted that the trial Court was right to have compared the Appellant’s signature in Exhibit D14 with that in Exhibit P4. He argued that the Appellant admitted that she issued Exhibit P4 (Rent Receipts in respect of parking store bearing the same address with the No. 3 lock up store) to the Respondent on different occasions but denied having signed Exhibit D14 in paragraph 1 of her reply to the statement of defence.
Learned Counsel also submitted that the case of Ojibah vs. Ojibah (Supra) cited by the Appellant’s Counsel does not apply. He argued that in the instant case, the trial Court was faced with a situation where a witness (Appellant) denied her signature in Exhibit D14 and before the same trial Court she admitted Exhibit P4 which bear sample of her signature. Thus, the trial Court was called upon to compare the signature which the Appellant denied as her own in Exhibit D14 with the signature in Exhibit P4 which she admitted as her signature. He referred us to the case of Ezechukwu vs. Onwuka.(2005) ALL FWLR (PT 280) P. 1517 R.6 where it was held that where there is dispute as to signature, the duty of the Court is to compare same. Mere dissimilarity of the signature is not a conclusive evidence ….
He also referred to Section 108(1) of the Evidence Act to also submit that the case of Ezechukwu vs. Onwuka (Supra) is applicable to the case and that Exhibit D14 deserved the weight attached to it by the trial Court and urged the Court to resolve this issue in favour of the Respondent.
Having considered the submissions of Learned Counsel and Issues 1, 2 and 7 , the pertinent question is, what is the effect of the non-registration of Exhibit “D14” which is a registrable instrument in this case?
The Respondent at paragraph 5(g) of her statement of defence: pleaded that on 12/9/1997 late Gregory Appah granted an irrevocable power of Attorney to late Batholomew Egwuatu Njoku in respect of the said No. 3 lock up store situate at No. 5 Christ Church Street, Owerri, Imo State in consideration of the sum of N100,000.00. That the said Power of Attorney was duly executed in the presence of witnesses including the Plaintiff. Ever since this grant, the Respondent started exercising various acts of ownership and possession. The Respondent, as DW1 tendered the said Exhibit D14 and gave evidence in line with the pleading.
By the provisions of Section 15 of the Land Instrument Registration law of Eastern Nigeria which is applicable in Imo State, provides;
“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered”
Exhibit D14 which was the Power of Attorney tendered by Respondent was admitted by the learned trial Court even though same was unregistered. It is trite that an unregistered registerable instrument is inadmissible in evidence and where it is erroneously admitted, it is subject to set aside. It is trite Law that inadmissible evidence cannot be admitted even with the consent of the parties and is always liable to expunged from the Courts record. See Ogbimi vs. Niger Construction Ltd (2006) 7 in JSC 154; Ayanwale & Ofs vs. Atanda & Anor (1988) 1 SC 1 at 20. It therefore follows that any document which is inadmissible but found its way into the record does not thereby become legal evidence and is therefore to be expunged even if admitted by consent. See Agbi vs. Ogbe (2006) 7 MJSC 1.

However, there is an exception to the general rule that unregistered registerable instrument is inadmissible where such a document of title is pleaded as a receipt or act of ownership and possession, it could ground an equitable relief but the Court will not order specific performance if the relief was not claimed. See Akinduro vs. Alaya (Supra), In Agbobike vs. Onyekaba (2001) FWLR (PT 62) 1915. Therein it was held that even though an unregistered registerable instrument is not admissible in evidence nor can be pleaded to prove title, it is evidence of payment of money and if coupled with possession, it may give rise to an equitable title or interest enforceable by specific performance. It cannot only confer a legal title. See Awaogbo vs. Eze (1995) 1 SCNJ 151 at 168; and Atufe vs. Oghomienor (2004) ALL FWLR (PT 224) 2063. That was indeed the finding of the Learned trial Judge in the instant appeal. Exhibit D14 was rightly admitted by the Learned trial Judge not to prove any legal title but to show that the Respondent has equitable interest and acts of ownership and possession in No. 3 lock up store at No. 5 Christ Church Road, Owerri.
Such an unregistered registrable instrument in my view is admissible as evidence of payment of purchase price and not as an instrument of transfer of land to vest legal title to land in the Respondent. In the instant case, Exhibit D14 which is a power of Attorney tendered by the Respondent to prove that her husband bought No. 3 lock up store at No. 5 Christ Church Street from the Appellant’s husband in 1997 was evidence of payment and purchase agreement. It will be admissible as an evidence of payment not as a title deed. See Ogunbambi vs. Abowab (1951) 13 WACA 222, Okoye vs. Dumez Nig. Ltd (1985) 1 NWLR (PT 4) 783; Savage. vs. Sarrough (1037) 13. NLR 141; Fakoya vs. Paul’s Church Shagamu (1966) 1 ALL NLR 74; Bucknor Maclean vs. Inlaks Ltd L1980) 8 – 11 SC. 1, and Obijuru vs. Ozims (1985) 2 NWLR (PT 6) 167.
The principle governing the admissibility of unregistrable instrument is that, while generally an instrument affecting land shall not be pleaded or given in evidence unless it is registered, a registrable instrument which has not been registered is admissible to prove an equitable interest and to prove payment of purchase money or rent. See Tella vs. Usman (1997) 12 NWLR (PT.531) 168, In other words, where a purchaser of land is in possession of land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor, then the purchaser has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Alhaji Idris Alaya vs. Pastor J.A. Akinduro (1998) 4 NWLR (PT. 545) 311.
In this regard, I agree with the submission of Learned Counsel for the Respondent that the admissibility of an unregistered instrument depends on what it is being pleaded as. In the present case, it is tendered to establish an equitable interest in No. 3 Lock up Store, the subject matter of dispute. The 1 and 2 issues are resolved against the Appellant.
In resolving issue 7, a look at the provision of Section 108(1) of the Evidence Act may be necessary. It provides that:
“In order to ascertain whether a signature, writing, seal or finger impression is that of the ,person by whom it purports to have been written or made any signature, writing, seal or finger imposition admitted or proved to the satisfaction of the Court to have been written or made by that person. May be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any purpose.”
In the instant case, the Learned trial Judge made a comparison of the signature of the Appellant in Exhibits “P4” and “P5” which were receipts issued by her as landlady and the signature on the Power of Attorney Exhibit D14 which she denied signing.
I have taken pains to look at the signature of the Appellant on the receipt (Exhibits P4 and P5) at page 86 of the record of appeal and the signature on the power of Attorney at page 97 of the same record and came to the conclusion that they belong to the same person. They belong to the Appellant Mrs. Gladys Appah. The slight dissimilarity, if any has not altered the situation.
The Learned trial Judge relied on the authority of Ezechukwu vs. Onwuka (2005) ALL FWLR (PT. 280) 1517 in arriving at his conclusion that the Appellant signed Exhibit D14. The facts of Ezechukwu’s case supra are not all fours with the present case as contended by Learned Counsel for the Appellant, but the issues are the same. They call for a comparison of an admitted document and another denied, in accordance with Section 108 of the Evident Act. Having so found, I hold that the Plaintiff signed Exhibit D14 and cannot be allowed to resile from it. This issue is also resolved against the Appellant.
Issue 3:
Whether survey plan is a mandatory requirement in all cases where declaration on the entitlement to certificate of occupancy is sought as in the instant case.
In arguing this issue, Learned Counsel for the Appellant stated that the claim of the Appellant was:
“A declaration that the Plaintiff is entitled to the statutory certificate of occupancy in respect of the portion of land owned by her late husband Mr. Gregory Appah at No. 5 Christ Church Road, Owerri, inclusive of the 7 stores (which the said No. 3 lock up store is one) built by her late husband.”
But submitted that the trial Court in its judgment delivered on 19/01/09 stated that the plaintiff is not entitled to the said relief because the whole land belonging to her late husband was not specified or shown in a survey plan showing the whole of her late husband’s land.
He submitted that the position of the law is that where a party claims ownership or possession of a specific portion of land, he can get judgment over a small piece of land, if the precise boundaries of such a small piece are proved. He relied on Horicon ,Ltd vs. Wasarum (1987) 3 NWLR (PT 66) Pg 646 at 648 He further submitted that it is an established principle of law that survey plans are not mandatory in land dispute if the land is specific and ascertainable, relying on the case of Olujinle vs. Adeagbo (1988) 2 NWLR (PT 75) Pg 238 at Pg 241.
He thus submitted on this point that the trial Court was therefore wrong, from the totality of the authorities cited to hold that the Plaintiff is not entitled to the said relief No. 1 of her claim because the whole land belonging to her late husband was not specific or shown in a survey plan showing the whole of her late husband’s land. He urged the Court to resolve issue No. 3 in favour of the Appellant and hold that she is entitled to the reliefs sought in the appeal.
In his response, Learned Counsel for the Respondent argued that it is in evidence that No. 5 Christ Church Road, Owerri is a vast area of Appah’s family compound and that the Appellant only testified that the vast compound was divided between Bridget Appah and Mariana Appah and that in 1984, her late husband built seven stores on his part of the land while Respondent testified that the stores built on No. 5 Christ Church Road, Owerri comprised three lock up stores.
Learned Counsel submitted that the Appellant admitted that there is a parking store bearing the same address No. 5 Christ Church Road Owerri situate in the same family compound and that the Respondent was also her tenant in that parking store whom she usually issued rent receipts as her tenant and denied that the parking store is not directly behind No. 3 lock up store, but in Appah’s compound. It is his view that the Appellant ought to have shown or describe to the Court clearly and accurately the area of land to which the portions of land she claim in a declaratory relief relates.
Learned Counsel submitted that the Respondent have described the features of the stores to which she claimed equitable interest from the time the store was a batcher constructed with zinc, produced all the receipts of rent up to the time her late husband out rightly purchased it. He submitted that it is the law, that in a claim for declaration of title, the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case. He referred to Ashiru vs. Odukoya (2006) 11 NWLR (PT.990) P.1 at 19 – 20 paragraph F-G Ratio 2 to submit that it is settled law that it is the duty of Plaintiff who comes to seek for a decree of declaration of title to land to show the Court clearly and accurately the area of land to which his or her claim relates and usually (though not always) a plan is necessary for that purpose. Such a plan according to him must also show clearly the dimension of the land, the boundaries and other salient features thereof. He placed reliance on the cases s; Salami vs. Gbodoolu (1997) 4 SCNJ 157 Pg 168 and Okocha vs. Anyimkwo (2003) 2 SCNJ 260 p.27. He finally submitted that the Appellant did not in her pleadings and statement of claim satisfy the requirement of the law stated in the above mentioned authorities and urged the Court to resolve issue 3 in favour of the Respondent.
The declaratory relief No. 1 sought by the Appellant at the Lower Court is as follows:
“1. A declaration that the Plaintiff is entitled to the statutory certificate of occupancy in respect of the portions of land owned by her late husband Mr. Gregory Appah at No. 5 Christ Church Road, Owerri inclusive of the 7 stores (which the said No. 3 lock up store is one) built by her late husband.”
A plaintiff who is seeking a declaratory relief such as in this case, must show that he has an interest or right which forms the foundation or basis for that declaration. It is that right or interest that the Plaintiff seeks to protect. See Olawoyin vs. Attorney-General Northern Nigeria (1961) 2 NSCC 165 at 169 at Pg. 3320 and Page 333AB. But if the defendant is able to discharge by evidence oral or documentary, the evidence of the Plaintiff, then the plaintiff’s claim to declaration of title will be dismissed. See Ogundairo vs. Okanlawon & Ors (1963) 1 ALL NLR 364 cited with approved in Awomuti vs. Salami (1978) 35 SC 105 at Pages 115 & 116 (Pages 89 lines 36 – 40).
The Court has a discretion to grant or refuse to grant a declaration of title to land, and the success of the claimant would in such an action depend entirely on the preponderance of evidence adduced before the Court. The Appellant in the instant case did not adduce sufficient evidence to be entitled to the declaration sought at the trial Court. She traced her root of title to No. 3 lock up store, and the evidence of PW2 who testified that he is the eldest male in the family of Mrs. Appah and that he is not aware if the Appellant’s husband sold the store and that she is entitled to her relief No. 1.
A survey plan simpliciter is not in all cases a sine qua non to prove ownership of land, but some descriptions is necessary to make a disputed land ascertainable to avoid speculations. See Sokpui II vs. Agbozo III 13 WACA 241 and Akpagbue vs. Ogu (1976) 6 SC. 63.
The Appellant testified that there is a parking store bearing the same address No. 5 Christ Church Road, Owerri situate in the same vast compound. That Respondent was also her tenant in that parking store and that she usually issue rent receipt to Respondent as her tenant. The same Appellant denied that the parking store is behind No. 3 lock up store, but in Appah’s compound. It is of fundamental importance and indeed it is settled that it is the duty of the plaintiff who comes to seek a declaratory relief to show in a wider perspective through a survey plan the area of land to which his claim relates. I agree with the Learned trial Judge that such a plan could have clearly shown the dimension of the land, the areas she claims she leased, the area the parking store is situate, the area No. 3 lock up store is situate and other salient features. The Appellant failed to do so. As she could not satisfy these requirements she is not entitled to the relief No. 1 in her statement of claim. Issue 3 has failed and is resolved against the Appellant.
Issue 4.
The issue No. 4 was framed thus:
“Whether the trial Court was right in relying on figures which were not given in evidence or on speculation to come to the conclusion that the nature of the transaction between Appellant’s husband and Respondent’s husband was not a long term lease.”
In arguing this issue, the Learned Counsel for the Appellant submitted that the Plaintiff on during cross examination gave clear evidence that her late husband granted a long term lease of 8 years and 4 months for the consideration of N100,000.00 calculated at the rate of N1,000.00 per month and N12,000 per year which terminated on January 31, 2005. And that N1,000.00 per month for 8 years and 4 months would amount to N100,000.00.
Learned Counsel argued that in the trial Court’s judgment delivered on 19/01/2009, the Learned trial Judge worked with N22,00.0 per year that was not in evidence instead of N12,000.00 per year that was in evidence and held that it was irreconcilable with the rent of N1,000.00 per month and dismissed the Plaintiffs claim. He also submitted that the Learned trial Judge in its judgment made a finding that the defendant was a tenant of the Plaintiff based on evidence before the Court.
Learned Counsel further submitted that the Respondent went into possession and usage of the disputed No. 3 lock up store by virtue of the tenancy agreement arrangement between the Appellant’s late husband and Respondent’s late husband and not by virtue of Exhibit D14. Therefore, it is not in consonance with the Law for the trial Court to assume and to hold that the Respondent exercised acts of ownership and possession over No. 3 lock up store situate at No. 5 Christ Church Road, Owerri upon the execution of the disputed and unregistered power of Attorney Exhibit, D14 and thereby acquired equitable interest when there was no evidence to support such position.
Learned Counsel further argued that it is an established principle of law that the Court must arrive at its judgment based on legal evidence adduced before the Court and not on speculation and conjecture. He cited Trade Bank Plc vs. Delemorenikeji (Nig.) Ltd (2005) 6 NWLR (PT. 921) Pg. 309 at 316 to submit that where a Court acts on speculation rather than evidence, then it has abandoned its proper role. Learned Counsel then urge this Court to hold that the trial Court was wrong in law in basing its decision on evidence that was not before the Court and relying on speculation. The Court was urged to resolve this issue in favour of the Appellant.
In his response, Learned Counsel for the Respondent submitted that the trial Court in its findings, worked with N22,000.0 per year that was not in evidence instead of N12,000.00 per year that was in evidence and held that it was irreconcilable with the rent of N1,000.00 per month. He posed the question whether this error assuming there was error in Court’s finding, occasioned miscarriage of justice. Learned Counsel answered this question in the negative. He is his submission that the trial Court made this finding with a view of determining whether the Respondent was a yearly or monthly tenant, and that the above findings would have been fatal, if made with a view of determining the length of statutory notice (quit notice) in a tenancy matter, but the Appellant’s claim is a declaration of title to land. He submitted that no miscarriage of justice was occasioned and urge the Court to resolve the issue against the Appellant.
The Appellant testified that in 1984, her husband built seven stores and rented them out to six tenants as monthly and yearly tenants. The Appellant further testified under cross examination that the Respondent’s husband paid monthly and yearly rent. He paid N1,000.00 monthly as at that time, N12,000.00 yearly.
The Learned trial judge in his judgment came to the conclusion that the phrase “at that time”, did not specify the months or years Respondent’s husband paid rent yearly and the months, and that there is no iota of evidence that the Respondent’s late husband held a yearly tenancy or paid yearly rent.
It is clear from the totality of the trial Courts finding in relation to the Appellants claim, an error in figure, that is using N22,000.00 instead of N12,000.00 in evidence to ascertain whether the Respondent was a yearly or monthly tenant did not in any way occasioned a miscarriage of justice and such evidence of miscarriage of justice was shown or given by the Appellant. For such to have occasioned, the Appellant must have been misled. This issue is also resolved against the Appellant. This issue is also resolved against the Appellant.
Issue No. 6
The Learned Counsel for the Appellant distilled Issue No. 6 as follows:
“Whether the trial Court was not bound to accept the uncontroverted evidence of the Appellant that the lease agreement evidencing the transaction between her husband and Respondent’s husband was destroyed by fire.”
It is the argument of Learned Counsel for the Appellant that the Learned trial Judge refused to believe the uncontroverted evidence of PW1, the Appellant on oath that the lease agreement through which her late husband granted late husband of the Respondent long term lease of 8 years and 4 months was destroyed by fire during the memorial service of her late husband on the ground that Appellant never mentioned any witness to the lease agreement. It is his view that this position taken by the trial Court is contrary to the established rule and position of the law by the Supreme Court in Arabambi vs. A.B.I. Ltd (2006) 3 MJSC Pg 61 at 68 “that a court would properly accept and rely upon any evidence before it which is unchallenged and uncontroverted provided that it is relevant to the issue before it”
He also relied on West African Shipping Agency Nig. Ltd. & Anor. vs. Kalla (1978) 3 SC 21 to submit that the wrong position taken by the Learned trial Judge made it to arrive at the wrong decision of dismissing the Appellant’s claim. Learned Counsel also submitted that the learned trial Judge, believed in Exhibit D14, the disputed unregistered Power of Attorney wherein the person alleged to have witnessed it testified on oath that she never signed it as alleged. He referred to the case of Adigun vs. A.G. of Oyo State (1987) 1 NWLR (PT 53) Pg. 679 Ratio 23 where it was held that, what fair hearing entails is equal opportunity and equal measure to both parties. It is also his view that the position taken by the Learned trial Judge that the Appellant should have mentioned the names of the witnesses on the lease agreement offend section 132 of the Evidence Act which excludes oral testimony of documentary evidence. He then urge the Court to resolve issue No. 6 in favour of the Appellant and hold that she is entitled to the relief sought in this appeal.
In his response, Learned Counsel for the Respondent submitted that the Appellant in her evidence stated that her late husband granted a long term lease to the Respondent’s late husband which expired 31/1/2005. That she stated under cross examination that the lease agreement was destroyed by fire incident in her house during the memorial service of her late husband. She also stated that she had evidence to show that such incident took place in 2001.
Learned Counsel therefore argued that the Appellant did not produce any evidence to prove the alleged fire incident in July, 2001 even when she claimed to have had evidence to show that such incident took place. Arguing this point further, Learned Counsel stated that the Appellant’s witness who claimed to be the eldest male in the family of late Mrs. Appah, and that nothing happens in Appah’s family which he is not aware, never gave evidence to support Appellant’s assertion that there was a lease transaction between the husband of both the Appellant and Respondent, and that the agreement evidencing such transaction was burnt as alleged. He submits that he who asserts the affirmation must prove the assertion, and relied on the authority of Messrs Peat & Lewis (N.R.I.) vs. Akhimie (1976) 7 SC.157 at 169. It is further submission that the Appellant who asserts that her late husband granted a long term lease of the store for 8 years and 4 months to the late husband of the Respondent and that the tease agreement burnt in July, 2001 in fire incident, did not discharge the onus on her to prove same. He then urged the Court to resolve Issue No. 6 in favour of the Respondent.
Issue No. 6 is whether the trial Court was bound to accept the uncontroverted evidence of the Appellant that the lease agreement evidencing the transaction between her husband and Respondent’s husband was destroyed by fire. The Appellant gave evidence as PW1 on oath that her late husband granted a long term lease to the husband of the Respondent for a period of Eight (8) years and 4 months. She further gave evidence that lease was destroyed by fire during the memorial service of her late husband.
It is an established principle of rule of law that he who asserts the existence of a state of affair must prove his assertion. The Appellant never tendered any documentary evidence to substantiate her claim that the lease agreement was destroyed by fire. The PW2 who said, he is the eldest in the family of the Appellant did not give testimony in support of her evidence on oath that there existed a lease, but later destroyed by fire. The fact that her evidence on oath was uncontroverted does not give credibility to her testimony. A Plaintiff must succeed on the strength of his case and not on the weakness of the Defendant. See Kodilinye vs. Odu (1935) 2 WACA 336 and Judes vs. Adani (1980) 5-7 5C 96.

Any evidence which was not controverted must be credible for the Court to relying on it. It does not Ipso facto follow that where no evidence was given to controvert it, the said evidence on oath of the Appellant which did not satisfy the standard of proof of preponderance of evidence in civil cases would automatically be accepted. See Hawad Int’L School Ltd vs. Mina Proj. Vent Ltd (No. 1) (2005) 1 NWLR (PT 908) 441 – 652 CA 552.
However, the Respondent led evidence of the sale of No. 3 lock up store the subject of dispute between the parties and tendered a Power of Attorney which was also signed by the Appellant. This documentary evidence further discredits the evidence of the Appellant. There is therefore no substance in the argument of Learned Counsel for the Appellant that the Learned trial Court was wrong when be refused to believe the uncontroverted evidence of PW1 on oath that the lease agreement existed and same was destroyed by fire. This issue is also resolve against the Appellant.
Having resolved all the issues involved in this appeal against the Appellant, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the Learned trial Judge delivered on 19th day of January, 2009 in Suit No. HOW/300/2006 is hereby affirmed. There shall be costs of N20,000.00 in favour of the Respondent against the Appellant.

MOJEED A. OWOADE, J.C.A: I have had the privilege of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal and abide by the consequential orders.

HARUNA SIMON TSAMMANI, J.C.A: I had the privilege of reading before now, the judgment just delivered by my learned brother.
My learned brother Uwani Musa Abba Aji, JCA (Presiding) has admirably considered and resolved all the pertinent issues that arose for determination in this appeal. I have no hesitation in concurring with his reasoning and conclusions thereon. I therefore agree that the appeal has no merit and should be dismissed. Accordingly, I hereby dismiss the appeal, and affirm the judgment of the lower court delivered on the 19/01/2009 in Suit HOW/300/2006.

Appearances

Chief E. T. C. Ogbusu, Esq.
Francis O. Obiefule, Esq.For Appellant

AND

C. C. Obi, Esq.For Respondent