LT. COL ABDULLAHI DAN’ ASABE (RTD) & ANOR v. ALH. IBRAHIM BABALE
(2013)LCN/6628(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of December, 2013
CA/K/62/2007
RATIO
ESSENCE OF A NOTICE OF APPEAL
The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd. (2009) 10 NWLR (Pt.1150) 624. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
WHETHER THE BODY LANGUAGE OF LITIGANTS AND WITNESSES CAN BE USEFUL ADMISSIBLE EVIDENCE
Of course, in Court, even the body language of the litigants and their witnesses can become useful lead to guide the thinking and decision of the Court, as the Court is enjoined to watch the demeanor of witnesses and take note of even their careless outburst to decipher the truth of their presentations in Court, and the same can constitute useful evidence on display which need not be admitted formally with a number tag. Per ITA G. MBABA, J.C.A
DISTINCTION BETWEEN AVERMENTS OF FACTS IN PLEADINGS AND FACTS DEPOSED IN AN AFFIDAVIT IN SUPPORT OF AN APPLICATION IN COURT
It is also the law that averment of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application in Court. Whereas the former, except admitted by the opponent in his defence, constitutes no evidence, the latter are, by law, is evidence already, which a Court may, in appropriate cases, act upon. See the case of BAT (NIG,) LTD VS. INT’L TOBACCO CO. PLC (2013) 2 NWLR (Pt. 1339) 493 at 521; MAGNUSSON VS. KOIKI (1993) 9 NWLR (Pt. 317) 287. Per ITA G. MBABA, J.C.A
EFFECT OF A NOTICE OF APPEAL PREPARED AND SIGNED BY A LAW FIRM
We have held, several times, that a notice of appeal or any process of Court, prepared and allegedly signed by a law firm without disclosing the legal practitioner who prepared and signed it, is worthless and cannot activate the jurisdiction of the Court to consider or entertain it. See the case of NEW NIGERIA BANK VS. DEDANG LTD. (2005) 4 NWLR (Pt. 916) 573; AGROVET SINCHO PHARM. LTD. VS. ESTATE OF ENGR. DAHIRU (2013) LPELR 20364 CA; BELLO VS. ADAMU (2011) LPELR 3722 CA. SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (Pt. 1252) 317.Per ITA G. MBABA, J.C.A
LAND LAW: WAYS TO PROVE TITLE TO LAND
There are five acceptable ways of proving title to land, and these five ways have received notoriety of the law, namely:
“(1) Through traditional history
(2) By grant or production of document(s) of title
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the person(s) exercising such acts of possession are the true owners of the land (4) By acts of long possession
(5) By possession of connected or adjacent land in circumstances rendering it probable that the owner of such land, would in addition, be the owner of the land in dispute”
See IDUNDUN VS. AKUMAGBE (1979) 9 – 10 SC 227 at 246 – 250; MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393; ALIM. ALESINLOYE (2000) 6 NWLR (Pt.600) 177. Per ITA G. MBABA, J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
LT. COL ABDULLAHI DAN’ ASABE (RTD) & ANOR Appellant(s)
AND
ALH. IBRAHIM BABALE Respondent(s)
ITA G. MBABA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court in suit No. K/430/2000, delivered on 21/12/2004 by HON. JUSTICE SAKA YUSUF, as he then was, whereof his lordship entered judgment for the Plaintiff as the legal and lawful owner of the property in dispute, restrained 1st Defendant his servants, agents, privies and assigns from trespassing or continuing to trespass on the land and granted N500,000.00 damages to the Plaintiff against the 1st Defendant.
The two Appellants and two other persons were the Defendants at the Lower Court in the suit filed by the Respondent (plaintiff at the Lower Court) for the following reliefs:
1. A Declaration that the plaintiff is the legal and lawful owner of the piece of property and appurtenance situate and lying along Mallam Bakatsina Road, Nasarawa Quarters Kano State and covered by Kano State Certificate of Occupancy No. LKN/RES/95/2422.
2. A Declaration that the 1st, 2nd and 3r Defendants trespassed into the property and appurtenance covered by Kano State Certificate of Occupancy No, LKN/RES/95/2422 and that the said act of trespass is unlawful.
3. An order of perpetual injunction restraining the Defendants whether acting by themselves or through their servants, privies, agents, assigns or whatsoever called from trespassing, continuing trespass, entering, taking possession or erecting any structure on the property and appurtenances covered by the Kano State Certificate of Occupancy No. LKN/RES/95/2422.
4. Special and General Damages in the sum of Five Million Naira (5,000,000.00) against the Defendants jointly and severally for trespass into the property and appurtenance covered by Certificate of Occupancy No. LKN/RES/95/2422 belonging to the plaintiff.
5. Cost of filing this suit.”
The Appellants (as 1st and 2nd Defendants) filed their defence and counter-claim denying the claims of the Respondent. The 3rd and 4th Defendants filed no pleadings but the 4th Defendant was represented by Counsel throughout the trial. In the course of the trial, the Appellants sought to amend their pleadings and counter-claim but were refused on 27/10/2003. Appellant sought leave to appeal against the Ruling and for stay of proceedings. The Lower Court granted them leave to appeal but refused to stay the proceedings and so the case was heard on the merits and judgment delivered in the substantive matter on 21/12/2004.
Being dissatisfied with final decision, the Appellants filed Notice of Appeal, dated 27/12/2004, which is contained on pages 296 to 300 of the Records of Appeal. Appellants later obtained order to amend their Notice of Appeal to incorporate their appeal against the interlocutory Ruling of 27/10/2003. The Amended Notice of Appeal was filed on 12/4/2012, disclosing 8 grounds of Appeal as follows:
GROUND ONE
The learned trial judge erred in law by awarding declaration of title to statutory right of occupancy to the Respondent on the basis of documents that are registered.
PARTICULARS
a. Whereas the deed of sale between the Respondent and his vendor (i.e. Exhibit B) merely hand written and not registered as required by law. The trial judge awarded declaration of title to the Respondent based on it.
GROUND TWO
The learned trial judge erred in law when he awarded declaration of title of statutory right of occupancy to the Respondent when the Respondent did not prove his root of title as required by the law. PARTICULARS
a. Whereas the Respondent merely tendered the deed of sale between himself and his vendor (i.e. Exhibit B).
b. Whereas the Respondent did not prove how his vendor got his own title.
c. Whereas exhibit C and C1 are merely documents which have no nexus in the matter but the trial Court utilized the exhibits in support of the Respondent’s case.
d. Whereas the Certificate of Occupancy tendered has no nexus with Exhibit A, B, C and C1.
GROUND THREE
The learned trial judge erred in law when he awarded declaration of title to the Respondent when the transaction upon which he derived his title and the title of the vendor was not conducted in accordance with the provisions of the Land Use Act 1978.
PARTICULARS
a. Whereas consent of the Governor is a condition precedent before alienation/transfer of title to land subject of statutory right of occupancy. The requisite was not had and obtained.
b. Whereas the lower Court awarded declaration of title to the Respondent.
GROUND FOUR
The learned trial judge erred in law he refused to exercise his discretion judiciously in refusing the Appellants/Applicants’ to amend their Statement of Defence and Counter Claim.
PARTICULARS
a. The Appellant’s counter claim is an independent and separate action.
b. None of the Appellants or any of the other defendants at the trial court opened their defence at the time of their application for amendment.
c. The 3rd and 4th defendants at the trial Court did not file any statement of defence or reply to the Appellants’ statement of defence.
d. Refusal of application for amendment of pleadings must be judicious and judicial.
GROUND FIVE
The lower Court erred in law it held in its ruling dated 27th October, 2003 that: “Accusation of the plaintiff and the 4th defendant of collusion, fraud and deceit were not contained in the original pleading. Now that they are made new cause of action would certainly have the effects of changing the original action into that of a substantially different character. I therefore agree with the noble submission of Mr. Okechukwu, learned counsel to the applicants (sic) that the best way out for the applicant is to cause a fresh action against the 4th Defendant and possibly against the plaintiff. Consequently therefore, there is no merit in the application and it is hereby refused. I call upon to defend the action.”
PARTICULARS
a. The 1st and 2nd Defendants/Applicants herein pleaded fraud in paragraphs 4 and 5 of the statement of defence and paragraph 11 of their counter claim filed on the 28/3/2001.
b. The plaintiff/1st Respondent joined issues with the 1st and 2nd Defendants/Appellants in paragraph 2 of his Reply to the Statement of Defence and counter claim attached to the motion on notice dated 12/3/2002.
c. Vital evidence on fraudulent dealings was extracted from PW1 under cross examination in the proceedings ol’27/6/2002.
d. The amendment sought for was to provide further particulars on the fraud committed by the plaintiff and the 4th defendant.
e. The amendment was to bring the pleadings in line with the evidence already placed on record.
f. The learned trial Judge merely relied heavily on the submission of the plaintiff/Respondent’s counsel that the best way out was for the Appellants to file a new cause of action against the 4th defendant and the Plaintiff/Respondent.
g. The Appellants have already filed a counter claim against the plaintiff and the 4th defendant in addition to their statement of defence in the suit.
h. The learned trial Judge did not advert his mind to the principles of res judicata when it reached the conclusion that a fresh case rather than the grant of the amendment was better.
i. The plaintiff/Respondent still had the opportunity to make consequential amendment and recall PW1 and even fresh witnesses.
GROUND SIX
The learned trial judge erred in law and upon the fact in dismissing the Appellants’ motion on notice for amendment, when:
PARTICULARS
a. The Appellants have satisfied all the conditions necessary for the grant of the leave to amend their processes.
b. The facts sought to be pleaded by the amendment and eventually rejected by the lower court are relevant and material to the issue in controversy.
c. The facts supplied in support of the application were not challenged or contradicted by the Plaintiff/Respondent or the 3rd and 4th Defendants at the lower court and therefore ought to be accepted by the trial court.
d. The conclusion reached by the lower court has the effect of shutting out vital and relevant evidence extracted under cross examination from PW1 and which extracted facts were covered by the proposed amended pleadings of the appellants and thus necessary for the just determination of the issues in controversy.
e. The findings made by the trial court on the principles governing amendment of court processes does not support the conclusion reached by the court.
GROUND SEVEN
The learned trial judge erred in law when in his judgment he relied on the counter affidavit dated the 16/10/2000 and the deed of sale dated the 15/1/1997 documents not pleaded or tendered and admitted in evidence to reach the conclusion that “on the whole there is merit in the plaintiff’s claim succeeds and enter judgment for him subject to the following orders…”
PARTICULARS
a. The plaintiff all through the trial only tendered in evidence Exhibit A, the search Report, Exhibit B the handwritten sales agreement the 4th Respondents and the plaintiff, Exhibit C and C1, Diamond Bank tellers and Exhibit D the certificate of occupancy.
b. The counter affidavit dated the 16/10/2000 was never pleaded by the plaintiff or any of the defendants and same was never tendered and admitted in evidence in the course of the trial.
c. The deed of sale dated 15/7/1997 between MALLAM MUHAMMED A. TUDUN WADA AND HAMARENG NIGERIA limited was never pleaded and same was not tendered and admitted in evidence at the trial.
GROUND EIGHT
The decision of the learned trial court cannot be supported having regard to the evidence adduced.
Appellants filed their Amended Brief of argument on 23/4/12 and the same was deemed duly filed on 17/1/2013. They distilled six (6) issues for determination, as follows:
1. Whether registration of document tending to alienate/transfer title to land covered by Certificate of Occupancy is mandatory before such alienation or transfer can be made, and whether the trial Court was right when it awarded title of the disputed property on the basis of the unregistered documents tendered, This covens Grounds No. 1 of the Amended Notice of Appeal.
2. Whether, by the state of pleadings and evidence adduced, the Plaintiff/Respondent can be said to have proved his root of title to the subject matter of the suit as required by law and whether he has proved his claim as required by the law. This covers Ground 2 of the Amended Notice of Appeal.
3. Whether the trial Court was right to have awarded title of the disputed property to the Respondent, when the consent of the Governor was not sought and obtained before the alleged alienation or transfer of title to him by vendor. This covers Ground 3 of the Amended Notice of Appeal.
4. Whether in the circumstances of this case, having regards to the pleadings, the evidence of PW1 on record, the learned trial judge’s refusal of the 1st and 2nd Defendants/Appellants’ application to amend their pleadings, was valid in law. This covers Grounds 4, 5 and 6 of the Amended Notice of Appeal.
5. Whether in the circumstance of this case, having regards to the pleadings, the evidence on record, the trial Court was right in law when in arriving at its judgment, it extensively considered and relied on the Counter affidavit dated 16/10/2O00 and the deed of assignment dated 15/7/1997, documents which were not pleaded, tendered in evidence, demonstrated, tested, canvassed and argued in Court. This issue relates to Ground 7 of the Amended Notice of Appeal.
6. Whether by the pleadings and the evidence on record the judgment is not against the weight of evidence adduced. This covers Ground 8 of the Amended Notice of Appeal.
Appellants also filed a Reply Brief on which was deemed duly filed on 6/11/2013.
The Respondent filed a preliminary Objection against grounds 4, 5 and 6 of the Amended Notice of Appeal, challenging their competence. On the appeal, the Respondent adopted the 6 issues distilled by the Appellants for the determination of the Appeal.
At the hearing of the Appeal on 6/11/13, Respondents Counsel argued his preliminary objection by adopting the arguments on issue 4 as per pages 21 to 23 of the Respondent’s Brief, which he referred to. He urged us to strike out grounds 4, 5 and 6 of the Amended Notice of Appeal for being incompetent for having been filed in contravention of section 24(2) of the Court of Appeal Act 2010 as amended.
Of course, Appellant’s Reply brief devoted pages 4 to 5 to respond to the preliminary objection, arguing that the Respondent cannot challenge the grounds 4, 5 and 6 of the Amended Notice of appeal via the Respondent’s brief in the manner Respondent has done, since the said grounds of appeal were filed with the leave of this Court, granted on 12/4/2012; that when this Court heard a motion for leave to amend Appellant’s Notice of Appeal to include the said grounds 4, 5 and 6 as additional grounds of appeal on 12/4/2012 the Respondent did not oppose the application, and having been granted without objection, the Respondent cannot challenge the competence of the said grounds in the Respondent’s Brief. He submitted that it is trite law that the appropriate time to raise objection to the competence of grounds of appeal, sought to be included in the notice of appeal, is when the application to file the amended Notice of Appeal containing the grounds of appeal is being moved. He relied on the case of UBA PLC. VS. SAMBA PET. CO. LTD. (2002) 16 NWLR (Pt. 793) 361 at 387; DAN MUSA VS. INUWA (2007) 17 NWLR (Pt. 1063) 391; ONOCHE VS. ODOGWU (2006) 6 NWLR (Pt. 975) 65 at 79.
Counsel ‘for the Appellant added that the way the Respondent approached the objection, by arguing it as Respondent’s issue 4, he was indirectly challenging the order of this Court which allowed the Appellants to file the Additional grounds of Appeal by amending the Notice of Appeal to include them and that is not proper. Moreover, Counsel submitted that even in the Respondent’s brief, the Respondent did not set out the preliminary objection and argue it as such, but fused the same in the argument of issue 4 for determination. He relied on the case of SEVEN UP BOTTLING CO. LTD VS. ADEWALE (2004) 7 WRN 143 at 157, where he said the respondent did not specifically and separately set out his objection under the heading ‘Preliminary Objection’, just as in the instant appeal, and this Court, per ADEKEYE JCA (as she then was) held:
“I regard the foregoing as an observation by the Counsel to the respondent and not a preliminary objection embodied in the contents of a brief of argument. There is a procedure laid down for raising a preliminary objection embodied in a brief of argument which has obviously not been complied with in this case. A respondent who has an objection in an appeal should clearly indicate in his brief thus: “Preliminary Objection” and this should normally be the first point in the brief. In the instant case, the Counsel to the respondent did not head his objection to the Appellant’s issues. The objection was inconspicuously raised in the brief.”
He also relied on the case of SANNI VS. ADEMILUYI [2003] 20 WRN 20 S.C.
I think the situation observed above by my Lord, ADEKEYE JCA (as she then was) in the case of SEVEN UP BOTTLING CO. LTD VS. ADEWALE (supra) is replayed in this appeal as the Respondent claims to have raised a preliminary objection to grounds 4, 5 and 6 of the Amended Notice of Appeal and argued same in pages 21 to 23 of the respondent’s brief, but no such preliminary objection is borne out on pages 21 to 23 of the Respondent’s Brief. Rather what is contained in pages 21 to 23 of the Respondent’s brief is Respondent’s argument of the Issue 4, which the Respondent adopted for the determination of the Appeal – the issue 4 being:
“Whether the Appellant could raise issues emanating from interlocutory ruling in a final appeal by a grant of an order granting leave to file additional Ground of Appeal parse. This issue emanates from grounds 4, 5 and 6”.
The Respondent’s Brief was filed on 13/5/13, but deemed duly filed on 14/5/13, wherein he claimed to have argued the preliminary objection. But the separate Notice of Preliminary Objection filed by the Respondent was dated 1/11/13 and filed on that date. It cannot be factually and legally possible to say that the said Notice of Preliminary objection, filed of 1/11/13, was argued in the Respondent’s Brief filed on 13/5/13 and deemed duly filed on 14/5/13! That would mean that the objection was argued about 6 months before it was filed! That would be a legal miracle. The said separate Notice of objection is hereby struck out.
That goes to show and confirm that there is no preliminary objection in this appeal, argued in the Respondent’s Brief. Rather what the Respondent raised in pages 21 to 23 of his brief appears to be an appeal against the order of this court, made on 12/4/12, allowing the Appellants to amend their Notice of Appeal by adding the grounds 4, and 6 of the Appeal. The Respondent was in court when the motion to amend the Notice of Appeal was argued, to add the said grounds of appeal and he raised no objection to the application!
This court cannot sit on appeal over its said earlier order to review it having become funtus officio therein. See the case of REMAWA VS. NACB LTD (2007) (Pt. 1017) 155; ABDULFATAI VS. KAYODE (2012) LPELR 14324 CA at 47; DINGIYADI VS. INEC (2010) 18 NWLR (Pt. 1224) 1 at 137.
I hold that the Respondent has not argued any objection in this appeal and that the issue 4 by the Respondent does not derive from grounds 4, 5 and 6 of the Appeal and is not in line with the issue 4 by the Appellant, which the Respondent claimed to have adopted.
Appellants’ Counsel S.M. RIWANU ESQ. (who settled the brief), arguing Issue 1, submitted that Exhibit B, being a registrable instrument and not being registered, cannot in law confer a valid title over the land in dispute on the Respondent. He relied on Section 2 of the Land Registration Law, Cap 77 Laws of Kano State, which defines instrument as:
“Document affecting land whereby one party (hereinafter called the grantor) confers transfers, limits, change or extinguishes in favour of another party (hereinafter called the grantee) any right of title to or interest in |and……”
He submitted that by the above definition, Exhibit B, the handwritten sale agreement between the Plaintiff/Respondent and the 4th Defendant, qualifies as an instrument within the contemplation of the Land Instrument Registration Law of Kano State; that being an instrument, affecting land, Section 15 of the land Registration Law required it to be registered, before it can be pleaded and given in evidence.
Also he contended that Exhibit B was tendered by the Respondent as evidence of transfer of title to him by the 4th Defendant and not as evidence of payment receipt; that he also tendered Exhibits C and C1 for the purpose; that this brings Exhibit B within the contemplation of the Lands Instrument Registration Law; thus, that exhibit cannot be pleaded and is inadmissible in evidence, because it is unregistered, being a registrable instrument. He said that the tone and tenor of the provisions of Sections 2 and 15 of the Land Registration law are clear and mandatory, that registrable instrument must be registered; that the law is trite that when the wording of a statute are clear and unambiguous, they call for no interpretation and the Court has a duty to apply the words as used by the legislature. He relied on the case of CCCTCS LTD VS. BASSEY EKPO [2008] 33 P11 NSCQR P.1181 – 1182; AKINDURO VS. ALAYA [2007] ALL FWLR [PT.381] 1653 at 1666 – 1667; LEKWAUWA VS. UKAEGBE [009] ALL FWLR [PT. 469] At 549; UZOEGWU VS. IFEKANDU [2001] FWLR [PT.72] 1950; [2001] 17 NWLR [PT.741] 49; SAVANNAH BANK PLC. VS. IBRAHIM [2000] NWLR [PT.662] 585; OGUNBAMBI VS. ABOWAB [1951] 8 WACA 222 OLOWOAKE VS. SALAWU [2000] 11 NWLR [PT. 677] 127; ADESANYA VS.
ADEROUNMU [2000] FWLR [PT.15] 2492.
Counsel submitted, finally, on the issue that the trial court was wrong when it arrived at the conclusion that Exhibit B, coupled with possession, conferred an equitable title on the Respondent; that because the Respondent did not ask for equitable relief in alternative, the trial court could not have played a “Father Christmas” to grant relief not sought. He relied on the case of SGB NIG LTD VS. WESTERN ELECTRODES CO. LTD. [1998] 5 NWLR [PT. 550] 512.
On Issue 2, counsel submitted that the Respondent failed woefully to discharge the burden of proof placed on him to prove his root of title, to entitle him to declaration of title over the disputed land; that the law is that the plaintiff can only succeed on the strength of his own case; that by law, where a party in an action for declaration of little to land traces his title to a particular vendor, he has the burden not only to prove his own title, but also the title of his vendor; that from the Respondents’ statement of claim, he only pleaded his root of title but failed to plead the root of title of his vendor He referred us to pages 98-99 of the Records. Equally, he said that there is nothing in the testimony of PW1 [pages 17 – 24 of the Records] that shows the root of title of the 4th Defendant to the original owner. He submitted that despite the Exhibits A, B, C1 and D tendered by the PW1 on the claim, there is no material evidence to link the 4th Defendant with the original owner, that there is no evidence that shows the transfer between the 4th Defendant and ALH. MUHAMMADU TUDUN WADA, indicated in Exhibit D as the original owner of the land; that there is a missing link and big question mark in the chain of title, between the 4th Defendant and the original owner – Respondent’s predecessor in title.
He argued that since the Appellant had joined issues with the Respondent and put him to the strictest proof of his claim, the Respondent was bound to establish his claim of title by credible evidence. He relied on the case of ADEKAN VS. GRAND SERVICES LTD (2007) ALL FWLR (Pt. 387) 855 at 869 – 870:
“Once a party pleads and traces his root of title to land, to a particular person or source and this is challenged, that party to succeed as a plaintiff in the suit must, not only establish his title to such land, he must also satisfy the Court as to the title of the person or source from whom he claim. He cannot totally ignore the validity of his grantor’s title, where this was being challenged and concentrate only on his own title to such land as he would not have acquired a valid title to such land if in fact his grantor at all material times had no title thereto.”
He also relied on the case of ALI VS. ALESHINLOYE (2000) FWLR (Pt. 15) 2610; DIKE VS. OKOLOEDO (1999) 10 NWLR (Pt. 623) 259; NWADIOGBU VS. NWADOZIE (2001) 6 NSCQLR (Pt. 111) 945 – 946
Counsel argued that, assuming (but not conceding) that the Respondent had pleaded the root of title of the 4th Defendant and the original title holder, that he had not led material evidence to establish the facts pleaded; that such pleading is deemed abandoned in the absence of evidence to sustain it, that it is settled law that pleadings not being human beings, have no mouth to speak in Court, that they speak through witnesses, and if no witness narrates them in Court, remain moribund, if not dead at all times and for all times to the procedural disadvantage of the owner. He relied in the case of OKOKO VS. DAKOLO (2006) NSCQR (VOL. 27) 259 at 300; ARABAMBI VS. ADVANCE BEVERAGE IND. LTD. (2005) 19
NWLR (Pt. 959) 1 at 28; N.A.S. LTD VS. UBA PLC. (2005) ALL FWLR (Pt. 284) 284 at 285 – 286.
On issues 3, whether the trial judge was right in awarding title to the Respondent when the consent of the Governor was not sought and obtained, Counsel answered in the negative and submitted that a perusal at the Records of appeal shows no evidence of the consent of the Governor, first sought and obtained, in respect of the transaction relating to the alienation of interest in the land between the Respondent and the 4th Defendant; that by section 22(1) of the Land Use Act cap 202 LFN 1990, the Governor’s consent is a condition precedent for the validity of any transaction relating to alienation of interest in land. He also relied on section26 of the Land Use Act to the effect that:
“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of the Land Use Act shall be null and void.”
He also relied on the case of ARAKA VS. EGBUE (2003) 17 NWLR (Pt. 848), on the fact that the clear language in statute must be given effect to. He also cited the case of CCCTCS LTD VS. BASSEY ELYRO (supra) at 1181 – 1182.
Counsel submitted that the purported transaction between the Respondent and the 4th Defendant, witnessed by Exhibit B, was null and void same having been conducted without the requisite consent of the Governor, first sought and obtained. He added that the finding of the Court based on Exhibit A, that the consent of the Governor was obtained was wrong; that, assuming and not conceding, there was any such consent, the same was not in relation to a transaction between the Respondent and 4th Defendant, but was between one HAMARENG NIGERIA LIMITED and the title holder, and that even if any such transaction existed, it was apparent from the Exhibit A that it has not been perfected to date.
He urged us to discountenance the findings of the trial Court on the point.
On issue 4, whether the trial Court was right in refusing Appellants application to amend their pleadings – Counsel submitted that the Lower Court was wrong to refuse the application to amend their pleading and counter-claim; that it did not demonstrate a full and dispassionate consideration of all the issue raised before it in the argument canvassed on the application and it was misled by the Respondent’s argument, touching on allegation of fraud.
He argued that the amendment was necessary to bring the pleadings in line with the evidence extracted from PW1, under Cross-Examination; that the refusal of the application denied the Court the opportunity of fully appreciating and assessing the live issues in controversy before it. He argued that at the stage of seeking the amendment none of the Defendants had opened their defences, and so the plaintiff still had opportunity to make consequential amendment of his pleading, if necessary, had the application been granted; so it was not right to say that the plaintiff would have no opportunity to deny the allegation. He added that amendment can be done at any stage when such is necessary for the purpose of determining the real question in controversy between the parties. He relied on Order 26 of the Kano State High Court (Civil Procedure) Rules 1988; NDDC VS. PRECISION ASSOCIATES LTD (2007) ALL FWLR (Pt. 385) 55; OLUGUNLEKO VS. OGUNNEYEHUN (2008) 1 NWLR (Pt. 1068),
On issue 5, Counsel submitted that the trial Court was wrong to have considered and relied on the Counter affidavit dated 16/10/2000 and the Deed of Assignment, dated 15/7/1997, all not pleaded, tendered in evidence, demonstrated, tested, canvassed and/or argued before the Court, in arriving at its judgment. He contended that there was no where in the Respondent’s pleadings that he pleaded the Counter affidavit dated 16/10/2000 and the deed of assignment dated 15/7/1997; also that none of the defendants pleaded either of the two documents; that the PW1 never tendered any of the two documents in his evidence. Thus, he submitted that the consideration/reliance on the two documents was perverse and rendered the judgment a nullity. He relied on the case of EZE & 6 ORS VS. ATASIE & 3 ORS (2000) FWLR (Pt. 13) 2180 at 2195, and said that a Court cannot go outside the pleadings and the evidence led before it to arrive at a decision.
He relied on the case of MUHAMMED DERUMIN’IYA VS. COMM. OF POLICE (1961) NRNLR 70 at 73 – 74; ONIBODU VS. AKINBU (1982) 7 SC 60 at 62; HABIB NIG. BANK LTD. VS. GIFTS UNIQUE LTD (2005) ALL FWLR (Pt. 231) 234 at 253; OBULOR VS. OBORO (2001) 8 NWLR (Pt. 714) 25 at 32; OBMC LTD. VS. M.B.A.S. LTD (2005) ALL FWLR (Pt. 216) 234; FBN N.G. PLC VS. AKPARABONG COMMUNITY BANK LTD (2006) ALL FWLR (Pt. 319) 929 at 982 – 983; AMAECHI VS. INEC (2008) ALL FWLR (Pt. 407) 1 at 134; ABUBAKAR VS. YAR’ADUA (2009) ALL FWLR (Pt.457) 1 at 156.
He added that the trial Court derailed and proceeded to conduct investigation, when it considered and relied on the Counter-affidavit and the deed of assignment not in evidence before it, to base its decision. He however added that assuming that we hold that the documents were pleaded (which he did not concede), that the same were never tendered or admitted in evidence as exhibits before the Court; that the consideration of the documents without affording the Appellants the opportunity of testing the genuineness of the documents was a denial of their fundamental right to fair hearing; that it is not permitted that a Court would make a case for any party. He relied on the case of MARTCHEM IND. NIG. LTD. VS. M.F. KENT (WA) LTD. (2005) ALL FWLR (Pt.271) 1 at 16 – 23; OKWEJIMINOR VS. GBAKEJI (2008) ALL FWIR (Pt.409) 405 at 447; section 149 (d) of the Evidence Act.
On issue 6, whether by the pleadings and the evidence on record, the judgment is not against the weight of evidence adduced Counsel submitted that the pleadings of the Respondent and evidence on record cannot sustain the judgment; that the judgment of the trial Court is perverse and a perverse findings cannot sustain a judgment, even if upheld on appeal. He relied on the case of JOLAYEMI VS. ALAOYE (2004) 18 NSCQR (Pt. 11) 682 at 708; LUGGA VS. SARHUNA (2009) ALL FWLR (Pt. 455) 1617 at 1655.
On why he said the judgment of the trial Court was perverse, Counsel said that the entire evidence of PW1 was at variance with the pleadings before the Court, and that it was full of material contradictions and tainted with fraud and illegality; that the sale agreement was executed on 10/3/2000 while payment was made 3 days after execution of the sales agreement i.e. on 13/3/2000; that the search report was conducted one year seven months (31/10/2001), long after the transaction; that the sale was between the Respondent and the 4th Defendant but the payment was made to one HAMARENG NIGERIA LIMITED; that even if the said Hamareng Nigeria Ltd were to be the seller, (which Appellants did not concede) it sold to the Respondent on 10/3/2000, while it bought from the original owner (if any such transaction exists at all) on 11/4/2000. These, he said, and many more are some of the material contradictions which the trial Court closed its eyes to and still went ahead to enter judgment in favour of the Respondent.
He urged us to resolve the issues in their favour and allow the appeal and grant all the reliefs sought by Appellants in their Amended Notice of Appeal.
Responding, the Counsel for the Respondent, OKECHUKWU NWAEZE ESQ., who settled the brief, on issue 1, reproduced the plaintiffs averment in paragraphs 7 – 9 of the statement of claim, and submitted that it was from the paragraph 8 that Exhibit B (a deed of sale and evidence of payment of purchase price of six million Naira) was pleaded, and that it was rightly admitted as exhibit in the case, as evidence of proof of payment of the purchase price of six million Naira (N6,000,000.00) to the 4th Defendant and as evidence that such transaction took place. He said that after that, the Respondent took over physical possession of the property and appurtenances and he expended over two million Naira (N2,000,000.00) in erection of structures and aluminum fittings on the building.
Counsel referred us to paragraph 3 of the Exhibit B (sale agreement) wherein the seller (4th Defendant) acknowledged receipt of the said N6million from Respondent for the purchase of the property.
He submitted that admissibility or otherwise of an unregistered registrable instrument depends on the purpose for which the document is being sought to be admitted; that if it is sought for the purpose of establishing title to land or interest in land, it would not be admissible or even pleaded. He relied on section 2 and 15 of the Land Registration Law of Kano State. However, Counsel said, if the document is tendered to show that there was a transaction between lessee and lessor, or to establish fact which one or both parties have pleaded, or to show evidence of payment of money/ the document is admissible. He relied on the case of OBIENU VS. OKEKE (2006) 16 NWLR (Pt. 1005) 225; OJONYE VS. IBRAHIM (2002) 1 NWLR (Pt. 747) 166 AND IYIOLA OGUNJUMO & OLU VS. MURTALA DEMOLA & ORS (1995) 4 NWLR (Pt. 381) 2s4 where the Supreme Court said:
“The law is well settled, that uninvestigated instrument is not admissible to prove title but is certainly admissible to prove payment of money and coupled with possibly may give the use to an equitable interest enforceable by specific performance.”
He also relied on ADESANYA VS. ADERONMU (2000) 6 SCNJ 242; DANTATA VS. DANTATA (2002) 4 NWLR (Pt. 756) 44 at 156, where BULKACHUWA JCA said:
“A registrable instrument which is inadmissible as such for want of registration, is however admissible to show that title has passed from the vendor to the vendee in the instant case, Exhibit D3, even if not admissible as a registrable instrument, it is admissible to show that the Appellant had passed title of the land … to the Respondent and was therefore admissible to prove that fact.”
See also ODUMADE VS. OGUNAIKE (2011) ALL FWLR (Pt. 566) 529 at 547:
“An unregistered instrument is not admissible to prove title to land sold. It is however admissible as a receipt or an acknowledgement of the payment of money in respect of the land. Where coupled with delivery of possession, it gives rise to an equitable interest which is capable of being converted into a Legal Estate by specific performance.”
Counsel submitted that there is nowhere in the Records of Appeal that the Exhibit B was tendered as evidence of proof of title, as Appellant alleged; but that it was tendered to show that there was a transaction and as evidence of payment. He added that the Respondent need not seek for an equitable relief before the Court can admit the Exhibit B, and make such pronouncement; that the Respondent sought to convert his equitable interest into a legal one by a declaration of title based upon his already possessed equitable interest. He relied on ODUMADE VS. OGUNNAIKE (SUPRA),
On issue 2, the Respondent’s Counsel answered in the positive, saying that where, as in this case, there is dispute over land or landed property and both parties have based the prove of their case or documents, the Court should award title to the party with better documents; that the Court is enjoined to compare the documents of the parties before arriving at a decision. He relied on the case of ADELAJA VS. ALODE (1999) 6 NWLR (Pt. 608) 554 SC; JIAZA VS. BAMGBOS (1999) (Pt. 610) 182 SC.
Counsel reproduced the claim of the Respondent and his evidence at the Lower Court, as well as the documents tendered to prove his claim, and submitted such evidence which was not contradicted during Cross-examination, went further to affirm the superiority of the Respondent’s case over the Appellants. He also, reproduced the relevant portion of Appellants case, to show how, according to him, the Appellants’ failed to establish their Counter claim or to deny Respondent’s claim, especially when the DW6, under Cross-examination said:
“I also know the property in dispute. Mr. Emaka 4th Defendant used to be a close friend of mine. There is no doubt that the property belongs to me. I know that the property is mine and I know I entrusted same to a good friend, 4th Defendant. What I am asking the Court to do is to hold that my property was stolen and fraudulently sold to another person.” (page 65 of the Records)
On page 66 of the Records, DW6 said further:
“I agree that the original owner of the property was Alhaji Tudun Wada. I also agree that there was no assignment between me and Alhaji Tudun Wada.”
Counsel submitted that the fulcrum of Appellant’s defence was that the property was fraudulently sold to the 1st Respondent by the 4th Defendant, but he (Appellant) did not give the particulars of fraud as required by law nor did he prove same beyond reasonable doubt as stipulated by law. He relied on the case of ALL STATE TRUST BANK VS. NZEFOR (2004) ALL FWLR (Pt, 201) 1719 at 1737; OKONKWO VS. CORPORATIVE & COMMERCE BANK (NIG.) PLC (2003) FWLR (Pt. 154) 492 SC.
He said that Appellant kept saying the property belonged to him, without adducing any form of evidence as to how he acquired the same; that in the light of the fact that both parties agreed that the original title holder was Alhaji Tudun Wada, upon the comparism of the evidence of the two parties, the Respondent’s
evidence was more credible and believable upon the balance of probabilities, while that of the Appellant appears a sham; that the Respondent has shown better title, with the production of documents of title, duly authenticated as well as acts of positive possession of the disputed land. He relied on the case of AHWEDJO ELEFIROJE & ORS VS. H.H. ONOME OKPATEFE II & ORS (1991) 5 NWLR (Pt. 193) 517.
He called our attention to the paragraph 8 of Respondent’s pleading, which Appellant disputed, and said that the Respondent, in proof of same, tendered the deed of sale between him and the 4th Defendant (Emeka Maduka) as Exhibit B, the Certificate of Occupancy No. LKN/RES/95/2422 as Exhibit D; that the deed of assignment between the original title holder and the 4th Defendant was annexed by the 4th Defendant to his Counter affidavit of 16/10/2000 (Exhibit A), which was a reply to the 1st Defendant/Appellant’s motion dated 20/7/2000 (seeking to set aside the order of the trial CouRt made on 6/7/2000, restraining all the Defendants from interfering with plaintiff’s lawful right of enjoyment of the land).
Counsel submitted that the deed of assignment dated 15/5/97, was between the original holder Mallam Muhd Tudun Wada and Hamareng Nigeria Limited, a Company owned by the 4th Defendant (the Vendor of the Respondent) who assigned as the Executive Director and accredited representative of Hamareng Nigeria Limited, who bought the property.
He submitted that Hamareng Nigeria Limited, being an artificial person, different from the natural persons that operate the Company, can only act through biological persons, like directors and share holders that run it, whose actions are binding on the Company. He relied on the case of LADEJOBI VS. ODUTOLA HOLDINGS LTD (2002) 3 NWLR (Pt. 753) 121 CA; that it was in this capacity of a Director of the Company that 4th Defendant executed the deed of assignment for and on behalf of the Hamareng Nigeria Ltd, as evident in Exhibits C and C1 being receipts of payment for the land property. He also argued that the 4th Defendant was also acting on behalf of the Company, when he put the Respondent in possession of the property. He said that the 4th Defendant, who entered into the agreement with the original owner, did not deny paragraph 8 of the statement of claim, but tacitly supported the same by his failure to file a defence to challenge the same. He relied on the case of ODUME VS. NNACHI (1964) 1 ALL NLR 329; MALLE VS. ABUBAKAR (2007) ALL FWLR (Pt. 360) 1569 at 1600 – 1601.
Counsel submitted that, contrary to the Appellant’s submission, the trial Court was not wrong in law to take cognizance of the original deed of assignment (between the 4th Defendant and Mallam Muhd A Tudun Wada) in arriving at its considered judgment. He relied on the case of AMADIUME VS. IBOK (2006) ALL FWLR (Pt. 321) 1247 at 1252; OKAFOR VS. OKAFOR (2000) FWLR (Pt. 1) 17.
On issue 3, Counsel submitted that by virtue of sections 22 and 26 of the Land Use Act 1978 any transaction regarding sale or lease of land or mortgage requires the consent of the Governor of the State (B.N. PLC VS. SONONUUG A (2007) 3 NWLR (Pt. 1021) 230 CA). He argued that the above provision was duly complied with by the 4th Defendant’s Company Hamareng Nigeria Ltd, and referred us to Exhibit A on pages 292 of the Records of Appeal, that is, search report carried out by the Respondent at the Ministry of Land and Physical Planning, Kano State; that the consent of Gov., having been obtained to transfer title in favour of Hamareng Nigeria Ltd, the conveyance transaction between the Respondent and the Company was therefore clothed with legal consent of Governor as required and in compliance with section 22(1) of the Land Use Act.
Counsel further submitted that it will be unreasonable and irrational to argue that failure to obtain the prior consent of the Governor before a deed of assignment is executed makes the assignment null and void. This is because, in practice, it is on the Deed of Assignment that the Governor’s consent is usually endorsed. Thus, the deed of assignment has to be prepared and executed by the parties before it is presented to the Governor for his assent.
He relied on the Supreme Court case of IRAGUNIMA VS. R.S.H.P.D.A. (2003) 12 NWLR (Pt. 834) 427.
Counsel argued that section 22 of the Land Use Act had been complied with by the 4th Defendant’s Company, as paragraph 2 of the Exhibit A (search report) stated:
“According to our records approval for consent to assign the title has been granted in favour of Hamareng Nigeria Limited of No. 25 Niger Street, Kano State, dated April 11th, 2000, but the perfection to such transaction has not been effected to date …”
Counsel said, that showed that the required approval for consent to assign the title in respect of the property, the subject matter of the suit, had been sought and granted/obtained, right before the alienation or transfer of title to the Respondent by Hamareng Nigeria Limited, through its Director and prime-mover, Arch. Emeka Maduka (the 4th Defendant).
He asserted that Exhibit A was obtained after Exhibit B (Deed of sale) had been executed between the Respondent and 4th Defendant as agent of Hamareng Nigeria Limited.
Counsel further relied on the case of AWOJUGBAGBE LIGHT INDUSTRIES LTD. VS. CHINUKWE (1995) 4 NWLR (Pt. 390) 370, were IGUH JSC said:
“It ought to be stressed that the holder of a statutory of right of occupancy is not prohibited by Section 22(1) of the Act from entering into some form of negotiations which may end with a written agreement for prosecution to the Governor for his necessary consent. The Land use Act does not prohibit a written agreement to transfer or alienate Land, so long as such a written agreement is understood and entered into subject to the consent of the Governor. There will be no contravention of Section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent”.
On Issue 5, whether the trial Court was wrong to refer to and rely on a document found in the Court’s file and exhibited in a counter affidavit to an application, Counsel answered in the negative. He submitted that the document was produced by the Defendant in support of a counter affidavit made in respect of an issue in the case, to counter an allegation by the Appellant at the High Court. He referred to pages of 156-159 of the Records of appeal, where the 4th Defendant’s agent deposed to, as follows in paragraph 3 of the counter affidavit.
“That around May 1997, he paid the balance of N3 Million to Mallam Muhammad Tudun Wada and a deed of assignment dated 15th July, 1997 was entered into between Mallam Muhammad Tudun Wada and Hamareng Nigeria Limited, one of his Companies, who purchased the property. The deed of assignment has been shown to me and a photocopy of same is attached and marked Exhibit “A”.
Counsel submitted that the affidavit was sworn to and deposed on the instruction of the 4th Defendant; that the Appellant did not deny the truth or otherwise of the averment; that the trial Judge in arriving at his Judgment looked Into its file and at the deed of assignment and used the same pursuant to the Supreme Court decision in the case of Oyewole vs Akande (2009) 38 WRN 1 at 40 – 45, where Akande JSC said: “A Court is entitled to look at a document in its file while writing its Judgment or ruling despite the fact that the document was not tendered and admitted and tendered as an exhibit at the trial”.
Counsel submitted that the requirement to do substantial justice allows the use of such document – ABIODUN VS. A.G. FEDERATION (2008) 17 WRN 56 at 108:
“The law is settled that a Court will be right in law to refer to the documents contained in the case file which are not made part of the application under consideration, if such documents will lead towards doing justice between the parties before it,” See also AGBABI VS. EBIKOREFE (1997) 4 NWLR (Pt. 502) 630.
He also relied on the case of NIGERIA YEAST & ALCOHOH MANUFACTORY CO. PLC. (IN LIQUIDATION) & ORS VS. ALL MOTORS (NIG.) PLC. (2011) ALL FWLR (Pt. 600) 1226 at 1253, where Abdullahi JCA said:
“A trial Court is entitled to use Affidavit evidence placed before it by a litigant.”
See also BAT NIG. LTD VS. INT’L TABACCO CO. PLC (2013) 2 NWLR (Pt. 1339) 493 at 521, where this Court said:
“Averment of fact in pleadings must be distinguished from facts deposed to in an affidavit in support of an application before a Court. Whereas the former, unless admitted, constitutes no evidence, the latter are, by law, evidence upon which a Court of law may, in appropriate cases, act”
See also MAGNUSSON VS. KOIKI (1993) 9 NWLR (Pt.317) 287.
Counsel added that Appellant was blowing hot and cold when he argued that section 149(d) of the Evidence Act be invoked, because the deed of assignment, as per Exhibit A by the 4th Defendant, was not pleaded, and at the same time arguing, as relates to the 4th Defendant and the original owner of the Land, that the same was pleaded! He said that was an admission.
On issue 6, whether by the pleadings and evidence, the judgment was not against the weight of evidence adduced, Counsel answered this by saying that the evidence of PW1 accorded with the pleadings; that contrary to the submissions of the Appellants at page 18 of the Amended Brief of argument, that by the evidence on Records:
(a) The sale Agreement is dated 10/3/2000;
(b) The payment was made on 10/3/2000;
(c) The search Report is dated 31/10/2001′
(d) The deed of Assignment between the 4th Defendant and the original owner is dated 15/7/1997.
He submitted that the trial Court carefully analysed the evidence adduced by all the parties before it came to its conclusion, that the Respondent’s case succeeded and the Counter-claim failed.
He urged us to resolve the issues against the Appellant and dismiss the appeal.
RESOLUTION OF ISSUES
I shall take the issues 1, 2 and 6 together, as they all touch on the award of title of the land to the Respondent in the circumstances of the evidence adduced, as the land document, Exhibit B, was not a registered instrument, and issue 6 seeks a review and reappraisal of the evidence adduced.
The law is trite, as argued by the Appellants, that by sections 2 and 15 of the Land Registration Law, cap 77, Laws of Kano State, every document purporting to transfer title to land or affecting land transaction, shall be registered to become a registered instrument, to qualify to be pleaded and admitted in evidence for the purpose of establishing title to land. And where an unregistered registrable instrument is inadvertently tendered in evidence, the same should be ignored, as it is bereft of any probative value. See the case of LEKWAUWA VS. UKAEGBE (2009) ALL FWLR (Pt. 469) 549; UZOEGWU VS. IFEKANDU (2001) FWLR (Pt. 72) 1950; SAVANNAH BANK PLC VS. IBRAHIM (2000) NWLR (Pt. 662) 585.
Appellant had submitted, relying on the above cases, that by section 15 of the Land Registration Law of Kano State, an unregistered document affecting land must not be pleaded and neither is it admissible in evidence; that if such document is pleaded, a trial judge upon an application made to it, must strike out the paragraph(s) of the pleading where such unregistered document is pleaded; that even where the unregistered document was mistakenly admitted in evidence, that part of the evidence relating to the unregistered document should be expunged, for reason of lacking in evidential value.
The section 15 says:
“No instrument shall be pleaded given in evidence in any Court affecting any land unless the same has been registered in the proper office as specified in section 3.”
Section 2 defines instrument as:
“A document affecting land whereby one (hereinafter called grantor) confers, transfers, limits, changes or extinguishes in favour of another party (hereafter called the grantee) any right or title to or interest in land”
But the law is always glazed or blended by equity to arrive at justice, as equity tends to come handy to blunt the sharp edge of the Law, when wielded to cause mischief. Thus, where a man has a document that evidences some transaction over land in which a party to the same has acknowledged receipt of money or consideration, for payment for land, the subject matter of the transaction, the law relating to the demand to register the document as land instrument before it can be pleaded and admitted in Court for the purpose of vesting value on the document, is moderated by equitable consideration that having acknowledged existence of that transaction, and receipt of payment for the land, it will be unjust to allow a party who profited from the transaction to evade or escape responsibility (and, maybe, back out of the deal or to defeat it) by pleading absence registration of the instrument to deny it the recognition of the law.
In such circumstances, as stated above, the Court will permit and recognize the tendering of the unregistered registratable instrument as Exhibit, not for the purpose of sections 2 and 15 of the Land Registration Law, in proof of title to the land, but for the purpose of showing that there was such a transaction, and the receipt of money or consideration, acknowledged in the transaction. See the case of OBIENU VS. OKEKE (2006) 16 NWLR (Pt.1005) 225; OJONYE VS. IBRAHIM (2002) 1 NWLR (Pt. 747) 166; IYIOLA OGUNJUMU VS. MURTALA DEMALA (1995) 4 NWLR (Pt. 381) 254; DANTATA VS. DANTATA (2002) 4 NWLR (Pt. 756) 44 at 156
In the case of ODUMADE VS. OGUNAIKE (2011) ALL FWLR (Pt. 566) 529 at 547 it was held:
“An unregistered instrument is not admissible to prove title to land, It is however admissible as a receipt or an acknowledgement of the payment of money in respect of the land. Where, coupled with delivery of possession, it gives rise to an equitable interest which is capable of being converted into a Legal Estate by specific performance.”
The Exhibit B, tendered by the Respondent, has been at the centre of the controversy. While the Appellant asserts that the document was a written instrument on land and so registrable, and that failure to have registered the same made it inadmissible, as it could not have been pleaded and tendered; that it cannot, in the circumstances, confer valid title over the land in dispute; the Respondent’s position is that Exhibit B was tendered and admitted as a proof of purchase of land and acknowledgement of receipt of payment of the N6million to the vendor, the 4th Defendant, who represented his Company, Hamareng Nigeria Limited that sold the land to the Respondent; that the document was not tendered as land instrument, being not registered as such.
Of course, the learned trial Court did not admit Exhibit B as a land instrument, but “to show that money has been paid to the defendant; that such document can be pleaded and given in evidence like any other document not coming within the definition of an instrument.” (See page 264 of the Records)
There is therefore nowhere in the Records of Appeal, or ruling of the trial judge that the allegation of the Appellant that Exhibit B was tendered as evidence of proof of title can be confirmed.
The Appellant had quarreled with the conclusion of the trial Court that Exhibit B, coupled with possession, conferred an equitable title on the Respondent; that because the Respondent did not seek equitable relief, in the alternative, the trial Court, not being a Father Christmas, could not grant such relief/order, not sought.
I do not think a plaintiff has to specifically seek a declaration to an equitable relief, before a trial Court can allow and admit a document that tends to support his equitable right over a claim in law. See the case of ABIODUN VS. A.G. FEDERATION (supra), where the Court held:
“The law is settled that a Court will be right in law to refer to the documents contained in the case file which are not made part of the application under consideration if such documents will lead towards doing justice in between the parties before it.”
The Respondent, as plaintiff, had sought (among other reliefs) a declaration that he is the legal and lawful owner of the property in dispute. The evidence led showed how he came into possession of the land , by purchase from 4th Defendant’s Company, and the 4th Defendant had supplied particulars in support of the claim, and the evidence/claim was largely, admitted, even by the Appellants, who admitted there was a sale to the Respondent by the 4th Defendant, though they alleged the land was stolen from him by the 4th
Defendant!
It is normal, in such circumstances, that one who has produced documents of title to land, including certificate of Occupancy, and is in possession of the Land, is recognized by the Court to have equitable title to the land, even when something remains to be done by the holder to convert the equitable title to a Legal Estate by specific performance. See the case of ODUMADE VS, OGUNNAIKE (supra); IYIOLA OGUNJUMO VS. MURTALA DEMALA (supra).
There are five acceptable ways of proving title to land, and these five ways have received notoriety of the law, namely:
“(1) Through traditional history
(2) By grant or production of document(s) of title
(3) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference that the person(s) exercising such acts of possession are the true owners of the land (4) By acts of long possession
(5) By possession of connected or adjacent land in circumstances rendering it probable that the owner of such land, would in addition, be the owner of the land in dispute”
See IDUNDUN VS. AKUMAGBE (1979) 9 – 10 SC 227 at 246 – 250; MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393; ALIM. ALESINLOYE (2000) 6 NWLR (Pt.600) 177.
There are scores of other authorities in support of this age long principle of proof of title to or ownership of land, and a claimant is required to establish only one of the five ways to succeed.
The law is equally trite that in a situation of conflicting claims to a given parcel of land and each of the opposing parties trace their rights to a common holder and can establish proof of title by any of the acceptable methods of proof, then the party who establishes better title to the piece of land will be entitled to judgment. See IDOWU & ORS VS. THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA (2012) LPELR 7863 CA; SUU VS. JOBAK NIG. LTD. (2012) 49 WRN 53.
In this case, evidence by the Respondent, supported by Exhibits A, B, C, C1 and D, clearly established how the land was sold to him for N6,000,000.00 (N6million) by the 4th Defendant, who, (as director of Hamareng Nigeria Limited, which earlier, in 1997, bought the land from the original owner Mallam A, Tudun Wada) also let the Respondent into possession.
The 4th Defendant even supplied the particulars of the sale, as per exhibit D (the original Certificate of Occupancy) bearing the name of the said original owner. Even Appellants who had made a rival claim of ownership of the land at the Lower Court, admitted that the 4th Defendant sold the land in dispute, which belonged to Hamareng Nigeria Limited, to the Respondent. They also admitted that the original land holder was Alhaji Tudun Wada, though they claimed that the land was sold by the 4th Defendant, fraudulently, to the Respondent; that the land belonged to him (1st Appellant) and had been stolen by the 4th Defendant from him!
The burden was theirs (Appellants’) to establish those allegations, to defeat Respondent’s claim. Of course, they failed to do so at the Lower Court, having not even pleaded any particulars of fraud, or led evidence to proof the fraud or stealing. It even stands to wonder whether it is now legally possible to steal Land, an immovable property!
The trial Court was satisfied with the quality of evidence led by the Respondent to prove his ownership of the properly, namely production of documents of ownership, which traced his claim to the original holder of the land, who had been issued with a Certificate of Occupancy Exhibit D, and the Governor had consented to the transfer of the same in favour of Hamareng Nigeria Limited, which through its director, 4’n Defendant, negotiated the sale and sold the property to him (Respondent).
I think the Respondent has satisfied the requirement of the law to establish sufficient prima facie proof of ownership, to entitle him to be conferred with equitable title of the land, as the Lower Court did. See the case of GROUP CAPTAIN OGAH RTD & ANOR VS. MALLAM GARBA ALI GIDADO & ORS (2013) LPELR 20298 (CA) where this Court held:
“The trial Court was satisfied with the quality of evidence led by the plaintiff to prove his title over the land and the production of his document of title, in the circumstances, was deemed satisfactory. By law, the production of the deed of title, such as Certificate of Occupancy in a claim, is sufficient and prima facie proof of his title, until the adverse party proves a better title. See the case of LATEJU VS. FABAYO (2012) 9 NWLR (Pt. 1304) 159 at 179; KAIGAMA VS. NAMNAI (1997) 3 NWLR (Pt.495) 549; MADU VS. MADU (2008) 6 NWLR (Pt. 1083) referred to.”
I resolve the 1st, 2nd and 6th issues against the Appellant.
Issues 3 was whether the trial court could award title of the land to the Respondent, when the consent of the Governor was not sought and obtained before the alienation or transfer of title to him by the vendor.
Of course, the Respondent had argued that the consent of the Governor had been given to the vendor Hamareng Nigeria Ltd to transfer interest in the land, in accordance with section 22(1) and 26 of the Land Use Act. He relied on Exhibit A, which also carried the report by the Respondent at the Lands Registry. The relevant part of the Exhibit A dated 31/10/2001, stated as follows.
” … 2. According to our records, approval for consent to assign the title has been granted in favour of Hamareng Nigeria Ltd of No. 25 Niger Street, Kano State, dated April 11th, 2000 but the perfection to such transaction has not been effected to date …”
Of course, the trial Court’s finding was that the consent of the Governor had been obtained, based on Exhibit A.
But the Appellants tried to fault it saying: “… if there was any such consent it was not in relation to a transaction between the Respondent and the 4th Defendant but it was in relation to a transaction between one Hamareng Nigeria Ltd and the title holder”; that “even if any such transaction exists, it was apparent from the said Exhibit A that it has not been perfected to date.”
Appellants had tried to paint a picture of fraudulent transaction In the sale of the land by 4th Defendant to the Respondent, creating the impression that 4th Defendant and the Company (Hamareng Nigeria Ltd) were strangers to each other, that the land did not belong to the 4th Defendant but to Hamareng Nigeria Ltd, as if the said 4th Defendant had nothing to do with the Company (Hamareng Nigeria Ltd). Of course, the findings of the trial Court was that the Company, Hamareng Nigeria Ltd, was owned by the 4th Defendant, who signed the document of sale (Exhibit A) as its Executive Director; that although the assignee of the deed of Assignment (Hamareng Nigeria Ltd) was the one who bought the property in dispute from original owner, as per Exhibits C and C1 (the receipts of payment made), the Company can only act through its director, who was, the 4th Defendant; that it was for these reasons that the assignment was signed by 4th Defendant (See page 265 of the Records).
Thus, there is evidence that the 4th Defendant was, at all times material, acting for and on behalf of the Company Hamareng Nigeria Ltd in the transaction, and that that was the capacity 4th Defendant acted, when he put the plaintiff in possession, see page 265 of the Record of Appeal.
These findings have not been faulted by the Appellants in anyway, and in fact, they were not appealled against. There is therefore no basis for the attack by the Appellants against those findings, and done in such a mischievous manner that tried to create impression of fraudulent dealings by the 4th Defendant in the sale of land!
The law is that where a party fails to raise an appeal against the findings of a Court, he cannot appeal on the matter. SHUKKA VS. ABUBAKAR (2012) 4 NWLR (Pt. 1291) 497 at 515 – 516:
“A finding against which there is no appeal remains binding and conclusive” “OKOTIE-EBOH VS. MANAGER (2004) 18 NWLR (Pt. 905) 242; ALAKIJA VS. ABDULLAI (1998) 6 NWLR (Pt.552), referred to”
I therefore resolve issue 3 against the Appellant
Issue 4 is on the refusal of the trial Court to allow Appellants to amend their pleading and Counter-claim. The Respondent had attempted to raise a Preliminary Objection to the issue, which objection was dismissed on the ground that, having not opposed the application to amend the Notice of Appeal to incorporate the grounds 4, 5 and 6 of the appeal, the Respondent cannot raise the objection, as if asking us to sit on appeal over the order to amend the Notice of Appeal.
But can the Appellants, validly raise any ground of appeal against the decision of the trial Court, given on 27/10/2013 refusing the application for amendment of the pleadings by the Appellants in this appeal? Is there any Notice of Appeal to support the said grounds 4, 5 and 6 of the Amended Notice of Appeal?
On page 3 of the Amended Brief of the Appellants, paragraph 1 thereof, they stated as follows:
“The trial Court heard arguments for and against the Appellants’ motion on Notice on the 29/7/2003 and 13/10/2003 and delivered its ruling thereon on 27/10/2003 wherein it refused the application … Appellants dissatisfied with the ruling sought for leave to appeal against the interlocutory decision via the Notice of Appeal dated 7/11/2003 which is contained in PP 175 – 177 of the printed record. This was pursuant to the ruling of the trial Court dated the 17/11/2003…Eventually judgment was delivered in the substantive suit against the Appellants on 21/12/2004. Being dissatisfied with the judgment, the Appellant herein filed the Notice of Appeal dated 27/12/2004 which is contained on PP 296 – 300”
Of course, the Notice of Appeal referred to in pages 175 to 177 of the Records of Appeal was purportedly filed by
“PP Bala Na’Allah & Co.
No. 25 Ikoyi/Sec Road
Eti Osa House S.W. Ikoyi
Lagos c/o Waziri Accido Road
Off Rabah Road Malali
Kaduna, Kaduna State”
The process was signed, but the name of the signatory was not disclosed. (See page 177 of the Records).
Having not disclosed any signatory to the process and the said “PP Bala Na’Allah & Co,” not being a person known to law or a legal practitioner, registered in Nigeria to practice law, the alleged Notice of Appeal cannot invoke the jurisdiction of this Court to consider any grounds of appeal founded on the alleged Notice of appeal.
It can be seen that the Notice of Appeal, filed on 27/12/2004 against the final judgment of 21/12/2004, was the one amended by the Appellants to incorporate the appellants’ application on the dissatisfaction with the interlocutory decision refusing Appellants’ application to amend process. (See page 3 of the Amended Brief of the Appellant). There is no relationship between the Notice of Appeal against the final judgment and the interlocutory ruling of 27/10/2003. There is therefore no valid Notice of appeal before us on which the said Additional or Amended grounds 4, 5 and 6 of the Appeal can predicate, or be founded.
The of the Amended Notice of appeal did not include the ruling of 27/10/2003, as the decision appealed against.
We have held, several times, that a notice of appeal or any process of Court, prepared and allegedly signed by a law firm without disclosing the legal practitioner who prepared and signed it, is worthless and cannot activate the jurisdiction of the Court to consider or entertain it. See the case of NEW NIGERIA BANK VS. DEDANG LTD. (2005) 4 NWLR (Pt. 916) 573; AGROVET SINCHO PHARM. LTD. VS. ESTATE OF ENGR. DAHIRU (2013) LPELR 20364 CA; BELLO VS. ADAMU (2011) LPELR 3722 CA. SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (Pt. 1252) 317.
To that extent, the Notice of Appeal on the Records of appeal on which the grounds 4, 5 and 6 are predicated, is incompetent and is hereby struck out, pursuant to Order 6 Rule 6 of the Court of Appeal Rules 2011.
“A Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
Issue 5 is whether in the circumstances of the case, having regards to the pleadings and evidence, the trial Court was right when it extensively considered and relied on the Counter-affidavit, dated 16/10/2000 and the deed of assignment, date 15/7/1997, documents not pleaded and not tendered, formally, as exhibits to reach its conclusions.
The documents complained of by the Appellants were produced by the 4th Defendant in the course of the trial. Appellants had on 19/1/2001 applied to set aside on interim order of the Lower Court entered on 6/7/2000 or to vary the said order which had allowed the Respondent some right to the property, pending the determination of the case at the Lower Court. The 4th Defendant caused the filing of the Counter-affidavit to oppose the Appellants’ application and on the side of the Respondent.
It should be noted that the 4th Defendant did not file any defence to the claim of the plaintiff (Respondent herein), and that the Counter-affidavit he filed against the motion of the Appellant was even more revealing of and admission of the case of the Respondent, as to the origin of the land and how the land was sold to the Respondent by his Company, Hamareng Nigeria Ltd, See pages 102 to 106 of the Records and the Exhibit A attached thereto on pages 107 to 109 of the Records.
The Respondent’s Counsel had argued that a Court is entitled to look at a document in its file while writing its judgment or ruling, despite the fact that the document was not tendered and admitted as exhibit at the trial, relying on the case of OYEWALE VS. AKANDE (supra). Of course, that is the position of the law. See also the case of ABIODUN VS. A.G. FEDERATION (2008) 17 WRN 56 at 108:
“The law is settled that a Court will be right in law to refer to the documents contained in the case file which are not made part of the application under consideration if such documents will lead towards doing justice in between the parties before it.”
See also AGBABI VS. EBIKOREFE (1997) 4 NWLR (Pt. 502) 630
I see it as an attempt to evade justice, to argue that a piece of evidence dropped in the Court’s file by parties, even if by inadvertence, which the Court deems relevant and useful to settle the dispute between the parties one way or the other, cannot be used by the Court, simply because it was not formally tendered and admitted in evidence.
Of course, in Court, even the body language of the litigants and their witnesses can become useful lead to guide the thinking and decision of the Court, as the Court is enjoined to watch the demeanor of witnesses and take note of even their careless outburst to decipher the truth of their presentations in Court, and the same can constitute useful evidence on display which need not be admitted formally with a number tag.It is also the law that averment of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application in Court. Whereas the former, except admitted by the opponent in his defence, constitutes no evidence, the latter are, by law, is evidence already, which a Court may, in appropriate cases, act upon. See the case of BAT (NIG,) LTD VS. INT’L TOBACCO CO. PLC (2013) 2 NWLR (Pt. 1339) 493 at 521; MAGNUSSON VS. KOIKI (1993) 9 NWLR (Pt. 317) 287.
In that case of BAT (NIG.) LTD VS. INT’L TOBACCO CO. LTD (supra), this Court also held that:
“Documents attached to affidavit must not be objected to, until the substantive action comes up for hearing. On a case decided on affidavit evidence, where the attached exhibits are not formally tendered as such evidence and the contents are not disputed, they cannot be dismissed by a wave of hand on mere technicality….”
That becomes more so, where no Counter-affidavit or a further affidavit was filed by the opponent to dispute or contest the contents of the affidavit and the document attached and relied upon. In this case, there is nothing to show that the Appellants filed a further and better affidavit to debunk the claims of the 4th Defendant in his Counter-affidavit of 16/10/2000. Rather, the Appellants, in their evidence, under Cross-examination, admitted the averments relating to the existence of the agreement (deed of assignment) between the original holder of the land Alhaji (or Mallam) Tudun Wada and 4th Defendant’s Company Hamareng Nigeria Ltd.; that the land was sold to the respondent by the 4th Respondent (though he claimed the land was stolen from him by the 4th respondent). He also admitted that there was no grant of the land by the original land holder to him (Appellant). See page 52 to 60 of the Records.
I therefore resolve the issue 5 too against the Appellants and on the whole, hold that the appeal is completely devoid of merit and should be dismissed.
It is hereby dismissed with N50,000.00 (fifty thousand Naira) costs against the Appellants to the Respondent.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading in advance the leading judgment of my learned brother, Mbaba, J.C.A., I agree completely with him and I abide by the orders made therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal I agree with the reasoning and abide the conclusions reached therein. I wish to add some few comments.
This appeal is against the judgment of the Kano State High Court in Suit No K/430/2000 delivered by Honorable Justice Saka Yusuf on the 21st of December, 2004. The Appellants filed an amended notice of appeal on the 12th of April, 2012 sequel to the leave to amend the notice of appeal granted by this Court. The amended notice of appeal contained eight grounds of appeal and from which the Appellants distilled six issues for determination. Reading through the grounds of appeal, grounds four to six were directed at the refusal of the lower Court in a ruling delivered on the 27th of October, 2003 to grant a motion filed by the Appellants to amend their pleadings in the course of trial. The fourth issue for determination in this appeal was distilled from these three grounds of appeal.
In the opening pat of the amended notice of appeal of the Appellants, it was categorically stated that this appeal was directed against the judgment of the lower Court delivered on the 21st of December 2004, no mentioned was made of the Ruling of the 27th of October, 2003. It is settled law that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd. (2009) 10 NWLR (Pt.1150) 624.
What these mean is that the jurisdiction of this Court was invoked by the Appellants in this appeal solely to consider whether on proper consideration of the facts placed before it, and the applicable law, the lower Court arrived at a correct decision in its judgment of the 21st of December, 2004, the subject matter of the appeal. It is not within the brief of this Court in this appeal to review any other ruling or decision of the lower Court outside the said judgment of 21st of December, 2004, and this Court possesses no power or jurisdiction to set aside or nullify any other such ruling or decision. This is because a Court of Appeal cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it – Anah Vs Anah (2008) 9 NWLR (Pt 1091) 75. In the absence of an appeal against a judgment or decision of a court, it remains inviolate for all time – Olawepo Vs Security and Exchange Commission (2011) 16 NWLR (Pt 1272) 122, Emeka Vs Okadigbo (2012) 18 NWLR (Pt 1331) 55, Duru Vs Federal Republic of Nigeria (2013) 6 NWLR (Pt 1351) 441.
This Court is thus handicapped in considering the complaints of the Appellants in grounds four to six of the amended notice of appeal and/or in resolving the fourth issue for determination which are directed against the interlocutory ruling of the lower Court delivered on the 27th of October, 2003 – Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 264, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131.
The issues to be resolved in an appeal must arise from the decision appealed against and where the converse is the case, the courts are enjoined to discountenance and strike out such issues – Contract Resources (Nig) Ltd Vs Standard Trust Bank Ltd (2013) 6 NWLR (Pt 1350) 260, Asogwa Vs Peoples Democratic Party (2013) 7 NWLR (Pt 1353) 207, Eyigebe Vs Iyaji (2013) 11 NWLR (Pt 1365) 407 and the unreported decision of this Court in CA/K/63/2007 – Diamond Bank Plc Vs Mshelia delivered on the 13th of September, 2013.
This point was succinctly made by the Supreme Court in Federal Mortgage Bank of Nigeria Vs Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Pt 591) 333. In that case the notice of appeal before the Supreme Court was in respect of a ruling given on the 14th of October, 1994 but grounds five and six of the grounds of appeal raised complaints against the earlier judgment of 12th of July, 1994. The crucial question that confronted the Supreme Court was whether or not the validity of the earlier judgment could be raised in an appeal against the later ruling. Ogundare, JSC, would rather think not. The learned Justice of the Supreme Court observed and held at 359 thus:
“There can be no doubt that these grounds do not relate to anything decided by the High Court in its ruling of 14th of October, 1994 on appeal before the court below. Those grounds would be relevant in an appeal against the High Court judgment of 12th of July, 1994. As this court, per Karibi-Whyte, JSC put it in Metal Construction (West Africa) Ltd Vs D.A. Migliore & Ors., In Re Miss Ogundare…
‘What then is a ground of appeal? I consider it presumptuous, but will still venture to define a ground of appeal as consisting of error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set it aside.’
It follows from this that any complaint that does not relate to the judgment appealed against cannot be relevant in the appeal and will, therefore, be incompetent. This is so because it is settled law that a judgment subsists until it is set aside and an aggrieved person who has not appealed against a judgment stands no chance of seeking to have the judgment set aside in an appeal against another judgment, except, perhaps, in the circumstances covered by Order 3 rule 22 of the Court of Appeal Rules which requires that an interlocutory judgment against which there is no appeal is not to prejudice an appeal before the court or where that other judgment is a nullity and it is being set up to support a plea of res judicata.”
I thus strike out the fourth to the sixth grounds of appeal and the fourth issue for determination of the Appellants.
The first to third and the sixth issues for determination of the Appellants complained against the order of the lower Court declaring tide to the land in dispute in favour of the Respondent. Counsel to the Appellants berated the lower Court for relying on an unregistered registrable instrument tendered by the Respondent contrary to the provisions of section 15 of the Lands Instrument Registration Law of Kano State. Counsel submitted that such a document was not admissible to found tide to land. It is correct that where a document qualifies as an instrument under the provisions of the Land Instruments Registration Law and it is not registered, it is not admissible to prove title to land – Oredola Okeya Trading Co Vs Attorney General, Kwara State (1992) 7 NWLR (Pt 254) 412, Tewogbade Vs Obadina (1994) 4 NWLR (Pt 338) 326,Awaogbo Vs Eze (1995) 1 NWLR (Pt.372) 393, Gbinijie Vs Odji (2011) 4 NWLR (Pt 1236) 103, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. Where it is not so registered, it cannot be pleaded to ground tide and if it is so pleaded to establish tide, such a pleading should be struck out – Ojugbele Vs Olasoji (1982) 4 SC 31, Nasir Vs Abubakar (1997) 4 NWLR (Pt 497) 32 and Agbodike Vs Onyekaba (2001) 10 NWLR (Pt722) 576.
An unregistered registrable instrument is, however, not un-pleadable and inadmissible for all purposes. Where it reflects the payment of money by the grantee or purchaser and the receipt of the payment by the grantor or vendor, it is can be pleaded and is admissible as a purchase receipt – Okafor Vs Soyemi (2001) 2 NWLR (Pt 698) 465, Igbum Vs Nyarinya (2001) 5 NWLR (Pt 707) 554, Edohoeket Vs Inyang (2010) 7
NWLR (Pt.1192) 25. Where the payment of the purchase price is coupled with a continuous possession of the land by the purchaser, an unregistered registrable instrument is admissible to prove equitable interest in land. This is predicated on the principle that where the deed of conveyance or other document of tide issued in favour of a purchaser is not registered but its holder is in possession of the land in issue an equitable interest in the property enures to his benefit and this is also as good as a legal estate – Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360, Ezenwa Vs Oko (2008) 3 NWLR (Pt 1075) 610, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, OIaIeye Vs Trustees of ECWA (2011) 2 NWLR (Pt.1230) 1.
In determining whether or not to admit or reject an unregistered registrable instrument, the court has to consider the purpose and the use to which it is being put – Ole Vs Ekede (1991) 4 NWLR (Pt 187) 569. Reading the pleadings of the Respondent in the instant case and his oral testimony, it is evident that the Deed of Sale complained about by the Appellants was tendered as evidence in proof of the fact the fact that the Respondent paid the sum of N6 Million for the purchase of the property. The Respondent also pleaded and led evidence to prove that he was let into physical possession of the property after the payment of the purchase price and that he retained undisturbed possession of the property and carried out further developments on the land until the advent of the first Appellant. The lower Court was thus on firm ground when it admitted and relied on the Deed of Sale to find title to the land in the Respondent.
Counsel to the Appellants al so complained that there was no evidence that the consent of the Governor of Kano State was obtained in respect of the transaction by which the Respondent stated that he acquired title to the property in dispute. It is trite law that a document of title that does not have the consent of the Governor will still sustain a claim for title provided it is coupled with possession of the land in question. Such a document vests in its holder, in such circumstances, an equitable interest in the property in its terms and which will become a legal interest on obtaining the consent of the Governor and such equitable interest can sustain an action for ownership of the property – Iragunima Vs Uchendu (1996) 2 NWLR (Pt 428) 30, Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt
834) 427, Amadi Vs Nsirim (2004) 17 NWLR (Pt 901) 111. The Respondent led evidence of possession in this matter and as such the issue of Governor’s consent was of no moment in this matter.
The Appellants also raised the issue of the failure of the Respondent to show how the fourth defendant in the lower Court, and through whom he claimed to have purchased the property, came to own the property. The lower Court had, in resolving this point in the judgment, referred to a Deed of Assignment between the limited liability Company of the fourth defendant and the original owner of the land and which was attached to a counter affidavit filed by the fourth defendant in the course of proceedings. Counsel to the Appellants stated that the lower Court had no power to refer to the Deed of Assignment as it was not tendered in the course of trial. With respects to Counsel, this submission is hollow as the power of the Court to refer to documents in its file to achieve substantial justice in resolving matters in dispute between parties has been recognized and upheld by the Courts in several cases – see for example Badejo Vs Federal Minister of Education (1996) 8 NWLR (Pt 464) 15, Agbasi Vs Ebikorefe (1997) 4 NWLR (Pt 502) 630 and Abiodun Vs Attorney General of the Federation (2008) 17 WRN 56. The Deed of Assignment in question provided the clear connection between the vendor of the Respondent and the original owner of the land.
This appeal is completely devoid of merit and I hereby dismiss it. I too affirm the judgment of the Kano State High Court in Suit No K/430/2000 delivered by Honorable Justice Saka Yusuf on the 21st of December, 2004. I abide the order on costs contained in the lead judgment.
Appearances
S.M. Rilwanu Esq., and M.Y. Amana Esq.,For Appellant
AND
Okechukwu Nwaeze Esq.,For Respondent
