MADAM ENID SANKEY v. MR. LUCKY OKIEMUTE ONAYIFEKE
(2013)LCN/6648(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/B/40/2002
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
MADAM ENID SANKEY Appellant(s)
AND
MR. LUCKY OKIEMUTE ONAYIFEKE Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of the Delta State High Court of Justice, holden at Effurun, which was delivered on 16th May, 2001. The respondent had claimed at paragraph 20 of his Further amended statement of claim, the following reliefs:-
“(a) A declaration that the Plaintiff is the person entitled to the ownership and possession of the landed property lying being and situate at Adiwhe Bush near Warri/Sapele Road Effurun now known and called No. 17B Okoloba Street, Effurun, Delta State, Nigeria a place within the jurisdiction of this Honourable Court and more particularly described in a Survey Plan No. MWC/992D/78 and which said property was demised to the Plaintiff by the Defendant by virtue of a Deed of Assignment Or
(b) Or in the alternative, plaintiff seeks an order of the Honourable court compelling the Defendant to specially perform the terms of the Deed of Assignment entered into by her and the Plaintiff.
(c) An order of perpetual injunction restraining the Defendant by herself, agents, servants or privies from interfering with the Plaintiff’s right of ownership and possession of the demised property described in (a) above OR
(d) In the alternative, Plaintiff claims the sum of N3,850,000.00 (Three Million, Eight Hundred and Fifty Thousand Naira) as the current value of the purchasing Power of the sum of N35,000.00 paid to the Defendant in 1991 and a further sum of N60,000.00 (Sixty Thousand Naira) per year from October, 1992 till date of judgment as rent at the rate of N5,000.00 (Five Thousand Naira) per month for the use of the demised property.”
Pleadings were duly filed, amended and exchanged between the parties. Each of the parties gave evidence and called witnesses at the trial. Learned counsel for the respective parties addressed the court below and at the end, the learned trial judge, entered judgment for the respondent.
The appellant, on 25th May, 2001; filed her notice of appeal anchored on the omnibus ground only, against the said judgment. The appellant, with leave of this court, filed eight (8) additional grounds of appeal. Thereafter, the appellant again sought the leave of this court which was granted and she filed three (3) further additional grounds of appeal.
In order to prosecute the appeal, the appellant, with leave of this court, granted on 15th February, 2010; filed her amended brief of argument dated 26th February, 2010 on 4th March, 2010. The said brief of argument was settled by A. B. Odiete, Esq., of counsel and in it, there is an indication that additional grounds 3 and 5 are abandoned, hence the appeal was argued on the original ground with the additional further grounds 2, 4, 6, 7, 8, 9, 10, 11 and 12.
The appeal was argued on 14th October, 2013.
In the appellant’s amended brief of argument aforementioned, three issues were distilled from the extant grounds of appeal for the determination of the appeal, to wit:
“(1) Whether the Respondent has by evidence proved his case that made the Learned trial Judge give ownership and possession of the premises in dispute to the Respondent?
(2) Was the Learned trial Jude right in law to have ordered the Appellant to pay to the Respondent the sum of N3,850,000.00 which the Learned trial Judge took to be the value of the house or the Naira value when he gave judgment and also the sum of N60,000.00 per year for the use of the house by the Appellant?
(3) Was the Learned trial Judge right to have ordered the Appellant to return the Respondent to the physical possession of the property?”
The Respondent’s brief of argument dated 20th January, 2006 and deemed filed by this court on 21st November, 2006 was settled by E. Diejomaoh, Esq., of counsel. In it, three issues were formulated for determination, to wit:
1. Whether an estate contract evidenced by a purchase receipt, followed by an unregistered Deed of assignment (such as Exhibits “A” and “C” respectively) with possession, are admissible in evidence and ground a claim for specific performance?
2. Whether the evaluation of the evidence adduced before the trial judge, which led to the finding/conclusion of the learned trial judge is perverse?
3. Whether the trial judge was right in granting the relief of the plaintiff in the alternative as claimed?
Having perused the issues for determination formulated for determination by learned counsel herein, I am satisfied that the appellant’s issue 1 effectively covers respondent’s issues 1 and 2 whilst appellant’s issue 2 covers respondent’s issue 3. Appellant’s issue 3 stand on its own. Therefore, in my consideration and determination of this appeal, I shall be guided by the three issues formulated by the appellant.
Learned counsel to the appellant arguing issue one anchored on grounds 2, 6, 9, 10 and 11 of the grounds of appeal, contended that since the respondent at the institution of his claim at the court below prayed for specific performance and possession of the property in dispute, he has already admitted or conceded that he was not in possession of the said property. Therefore, appellant’s learned counsel submitted that the onus was on the respondent to prove a better title than that of the appellant who was in actual possession of the same property. He relied on Chief Iman Ashaya Tijani v. Bishop Aboyede Cole (1958) LL.R. 58; Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67; Coker v. Farhart 14 WACA 216; Danford v. Mcanty (1883) AC 456 at 462; Law & Practice Relating to Evidence in Nigeria by T. A. Aguda, page 259 para. 21.40; Bullen & Leak 12th Edition p. 67; Aromire v. Awoyemi (1972) ANLR 105 at 115 Reprint.
Appellant’s learned counsel further submitted that with respect to paragraph 7 of the respondent’s pleadings vis-‘E0-vis Exhibit A, the purchase receipt of N35,000.00 for the property in dispute, the respondent did not prove that the said N35,000.00 was paid to and received by the appellant. He insisted that the pieces of evidence by the PW1 and the respondent materially contradicted each other with respect to the alleged payment of N35,000.00 to the appellant and the issuance of Exhibit A by the latter and those pieces of evidence are at variance with paragraph 7 of the respondent’s pleadings. He referred to Ituama v. Akpe-Ime (2000) 80 LRCN 2480 at 2496; Eze v. Atasie (2000) 79 LRCN 1998 at 2021; Ito v. Ekpe (2000) 75 LRCN 35 at 382; Nsirim v. Unuma Construction Co. (2001) 85 LRCN 974 at 989 & 990.
Appellant’s counsel next contention was with respect to the question of the appellant putting the respondent into the possession of the property in question. He submitted that there was no evidence proferred by the respondent to prove his averment at paragraphs 11 and 11b of the amended statement of claim. This, he said was because the respondent failed to call any of the alleged tenants who were occupying the premises/property between 1991 and 1993 when he was introduced and put in possession thereof. Learned counsel found it difficult to understand the reasoning of the learned trial judge on this point at page 163 lines 20 – 30 of the record of appeal.
Turning to Exhibit C, the deed of assignment upon which the respondent also anchored his ownership and possession of the disputed property, learned appellant’s counsel submitted that Exhibit C was a registerable instrument by virtue of Section 2 of the Lands Instrument Registration Law, Cap. 81 Laws of the Defunct Bendel State 1976 and applicable to Delta State. And that by virtue of Section 16 of the said Law, both Exhibits A and C ought to have been registered before they could be pleaded and admitted in evidence in a trial in court affecting any land. He contended that neither Exhibits A nor C was so registered and therefore none of them could be relied upon to divest the appellant’s title to the disputed property. He referred to Muonweokwu v. Egbunike (1959) ENLR 53; Jaiyeola v. Akimbo (1959) WNLR 300; Section 132 of the Evidence Act; Lagos Timber & Co. v. Titi Combe 17 NLR 14; Ogunbambi v. Abowab 13 WACA 222 at 224; Eso v. Adeyemi (1994) 4 NWLR (pt. 340) 586). He urged that Exhibits A and C having been wrongly admitted in evidence, ought to be expunged by this court, from the records. This is more so, as the said documents were not duly executed instruments. He relied on Adelaja v. Alade (1999) 68 LRCN 784 at 806.
It is also the submission of appellant’s learned counsel that although the payment of purchase price of a landed property and delivery of possession to a purchaser is a mode of alienation of land under customary law on the authority of Akinterinwa v. Oladunjoye (2000) 77 LRCN 673 at 689, (SC); by virtue of Sections 21, 22 and 26 of the Land Use Act, 1978 the consent of the Governor must be obtained for such alienation to be valid. He relied on the Supreme Court decision in Owoniboys v. UBN Ltd. (2003) 110 LRCN 1725 at 1743, to the effect that it is the vendor who ought to so obtain the Governor’s consent. Learned counsel however submitted that on the authority of the Supreme Court in Onamade v. ACB Ltd. (1997) LRCN 91 at 116, the failure of a vendor to first obtain the Governor’s consent before he transfers his interest in land to another does not make the act of alienation valid.
Appellant’s counsel urged us “to make a specific finding that the mere payment of purchase price of land and obtaining possession of same from a vendor contravenes the clear provisions of Sections 21 and 22 of the Land Use Act and is accordingly null and void and of no legal effect in accordance with Section 26 of the Land Use Act”.
Learned Respondent’s counsel, at the onset of his brief of argument from page 2 after the formulation of his three issues for determination, to 4 thereof, in what ostensibly appear to be a preliminary objection.
Respondent’s learned counsel, arguing his own issue 1 submitted that with the testimonies of PW1 and the respondent at the court below, the latter armed with the purchase receipt Exhibit A, had acquired an equitable interest which is enforceable by specific performance in respect of the property in question. He referred to Ayorinde v. Fatoyin (2001) FWLR (pt. 75) 483 at 506; Aneze v. Anyaso (1993) 5 NWLR (pt. 291) 1; Djukpan v. Rhorjhadjor Orovuyoube & Anor (1967) NMLR 287; Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (pt. 4) 783.
He contended that Exhibit A – purchase receipt and Exhibit C – Deed of Assignment were admitted in evidence, rightly by the learned trial judge, as receipts and they were not documents to establish title.
Furthermore, it is the contention of respondent’s counsel that once a document is pleaded as a receipt it is admissible in evidence to establish as estate contract, which coupled with possession, can ground a claim for specific performance. He submitted that it is not the law that a document which qualifies as an instrument under Section 2 of the Lands Instrument Registration Law of Bendel State 1976 is not admissible in evidence as a receipt.
Referring to Aromire & Ors. v. Awoyemi (1972) All NLR 105 at 115 Reprint, relied upon by learned appellant’s counsel with respect to the Supreme Court’s holding that:
“…. if it be alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to the possession which was disturbed”;
Learned respondent’s counsel submitted that the respondent had discharged that onus. He contended that the respondent had proved to the trial court satisfactorily that upon a sale transaction of the appellant’s bungalow to the respondent in 1991, the latter was put in possession which he maintained between 1991 and 1993 before the appellant disturbed that possession by forcibly ejecting the respondent with the use of policemen.
With respect to the contention of the appellant that consent of the Governor was not obtained before the alienation of the property in question to the respondent, learned counsel to the respondent submitted that it was the appellant who had the duty to obtain the Governor’s consent in order for him to transfer his interest in the property to the respondent. Therefore, the appellant cannot now turn round to complain that Exhibits A and C are null and void and benefit from his own wrongful act of not obtaining the Governor’s consent before transferring her interest in her property to the respondent. He placed reliance on Savannah Bank Plc. v. Ibrahim (2000) FWLR (pt. 25) 1626 at 1642; Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (pt. 96) 212 at 226 – 227; Solanke v. Abed (1963)1 All NLR 230 at 233 – 234; Attorney General of Federation v. Sode (1990) 1 NWLR (pt. 128) 500 – where the apex court held that in a land transaction, the holder of a right of occupancy is the person to ask for the Governor’s consent as well as register the land instrument and it will be unconscionable for such a person to turn round and contend that the consent of the Governor was not obtained. Learned respondent’s counsel further referred to Omoniyi v. UBA (2001) FWLR (pt. 63) 54 at 67 where this court held that:
“It is not open to the defendant or plaintiff who has a statutory function to obtain the Governor’s consent as a condition precedent to the alienation of his statutory right of occupancy or transfer …… to rely upon his own wrongful act so as to allege against the plaintiff or the defendant as the case may be, that the transaction involved is null and void and unenforceable.”
Learned respondent’s counsel finally on this issue submitted that with the finding of the learned trial judge at pages 168 – 169 of the record of appeal, to wit:
“Even Exhibit “A” alone though not elegantly drafted binds the Defendant in the transaction.”;
the respondent is entitled to right of possession and ownership of the property, that is, a 3 bedroom bungalow known and called No. 17B Okoloba Street, Effurun, Delta State of Nigeria.
Arguing his own issue 2, it is the submission of respondent’s counsel that since the learned trial judge properly evaluated the pieces of evidence proferred before him, the appellate court has no business with interfering with the findings of the court below which have not been shown to be perverse and that it is the latter who had that primary duty of appraising the evidence led before him and ascribing probative value to them. He relied on Osolu v. Osolu & Ors. (2003) FWLR (pt. 172) 1777 at 1794. He referred to pages 151 – 172 of the record of appeal to demonstrate the assessment and evaluation of the evidence placed before the learned trial judge and how he ascribed probative value to those pieces of evidence proferred by the witnesses. Learned counsel further submitted that the findings and conclusions of the learned trial judge who saw and heard the testimonies of the witnesses and their demeanor in the witness box were not perverse and should not be interfered with by this court. He placed reliance on Major I. Z. Umoru (Rtd) v. Alhaji Abubakar Zibiri & Ors. (2003) FWLR (pt. 172) 1920 at 1934 where the apex court held that:
“A trial judge who sees and hears the witnesses giving evidence before him has the exclusive right to assess their demeanor so as to determine whether they are telling the truth or not. He can, in this way, determine the credibility or otherwise of testimony of every witness who testifies before him and where this is done properly, the appeal court should not, in any way possible, interfere therewith” – per Kalgo, JSC.
It is the contention of respondent’s learned counsel that appellant’s issue 1 does not flow from any of the grounds of appeal and that it is vague and generalized, therefore it should be struck out. So, he urged us.
Let me first dispose of this last contention by learned counsel to the respondent with respect to appellant’s issue 1. If the respondent was objecting to the appellant’s issue 1, is this the stage and manner he can do so? I do not think so. To my mind, such objections are to be raised vide a Preliminary objection, before arguments are canvassed on any ground of appeal or issue for determination and not after the issue has been argued by counsel. The objective of such an objection, when properly raised is that the appellate court should not bother to even consider the issue because according to the objector, such an issue is invalid or incompetent. Yaro v. Arewa Construction Ltd & Anor. (2007) 6 SCNJ 418. Then the opposing party, in this case, the appellant would have an opportunity to react to it by defending the issue or ground of appeal.
And this the appellant does, by filing a reply brief of argument, to the preliminary objection. Magit v. University of Agriculture, Makurdi (2005) 19 NWLR (pt. 959) 211 at 239; Ayo Fayose v. Independent Communications Network (2012) 19 WRN 146.
The guide to be followed in order to raise a preliminary objection was well laid down by the apex court in Odedo v. INEC (2008) 7 SCNJ 1 at 25, that it is to be raised conspicuously under the title – “PRELIMINARY OBJECTION”, followed by the grounds for the objection and supported with argument thereon. Further see:
Okereke v. Yar’Adua & Ors (2008) 5 SCNJ 1; Ajide v. Kelani (1985) 3 NWLR (pt. 12) 248.
This, the respondent failed to do and in consequence, I discountenance his submissions with respect to appellant’s issue 1.
In the same vein, the submissions of the respondent’s counsel at pages 2 – 4 of his brief of argument, to the effect that “certain issues of law raised and argued by the Appellant in her brief of argument as well as Grounds 2, 3, 5, 8 and 9 of the Appellant’s additional grounds of appeal are incompetent,” and should be struck out, are not on solid foundation and they are equally discountenanced by me. That is, the objections to those “certain issues” and grounds 2, 3, 5, 8 and 9 of the appellant’s additional grounds of appeal, were not properly predicated on a preliminary objection, by the respondent, to enable the appellant exercise her right to file a Reply brief of argument thereto. Magit v. UNIAGRIC Makurdi (supra); Fayose v. Independent Communications Network (supra); Odedo v. INEC (supra); Okereke v. Yar’Adua (supra); Ajide v. Kelani (supra).
I shall now proceed to consider and determine the real meat in this appeal. Having perused the submissions of both counsel in the appeal, they are to my mind, rightly ad idem, on the well settled principle that it is the person who asserts the existence of a fact or set of facts, which are within his own knowledge, who has the burden/duty to prove those facts by hard evidence by him and/or his witnesses. Section 131(1) & (2) of the Evidence Act, 2011; Balogun v. Latinwo (1988) 3 NWLR (PT. 80) 67; Eya & Ors. Olapade & Ors. (2011) 5 SCNJ 98; (2011) 11 NWLR (pt. 1259) 505; Imonike v. Unity Bank Plc. (2011) 5 SCNJ 73 at 89 – 90; Busola Oyebode v. Ogundele Gabriel & Ors. (2013) All FWLR (pt. 669) 1043.
Learned counsel to the parties are also agreed and I too agree with them that as at the time of the institution of the respondent’s action at the court below, the appellant was the person in possession of the property in dispute, at No. 17B, Okoloba Street, Effurun Delta State, Nigeria. Hence it is the respondent who is alleging that he ought to be in possession and not the appellant, who has the onus of showing that he has a better right to the possession of the property of which he was disturbed by the appellant. In Aromire & Ors. v. Awoyemi (1972) All NLR 105 at 155 Reprint, it was succinctly stated by the Supreme Court, inter alia:
“We are in no doubt, that on the pleadings, the case of the Plaintiff postulates that she had a better title to the land than the Defendant who admittedly was at the time of the institution of the proceedings rightly or wrongly in possession of the land ……… The Learned trial Judge rejected the Defendant’s case and passed severe strictures on the Defendant’s witnesses and their conduct, but with respect a consideration of the Defendant’s and the weakness of it did not arise until the Plaintiff has led evidence showing prima facie that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when as indeed, it is the Defendant who is in possession and maintains that he is entitled so to remain. If it be alleged that someone in possession of land is a trespasser, the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless cannot defeat the rival part. Such is the case here and we are of the view that the Plaintiff’s case had failed and it should have been dismissed. (See GODWIN EGWUH v. DURO OGUNKEHIM SC. 529/66 decided on the 28th February, 1969).”
Further see Adedeji v. Oloso (2007) 1 SCNJ 397 at 413, to wit:
“Once the defendant admits the plaintiff’s possession on the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and section 145 of the Evidence Act Cap. 62 of 1958 will impose a burden on the defendant to prove the negative namely that the plaintiff is not the owner. See Lawrence Onyekaonwu & Ors. v. Ekwubiri (1966) 1 All N.L.R. 32 at p. 35. In such a case, it is the defendant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff’s claim succeeds without even the plaintiff giving any further evidence.”
And at pages 400 – 401 of the same report Oputa, J.S.C said: “To hold otherwise will be to ‘overlook the established rule that once it is proved (here it was admitted by the defendants and found by the trial court) that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the other party’ – per Coker, J.S.C. in Bello Isiba & Ors. v. J. T. Hanson & Anor. (1967) 1 All N.L.R. 8. The same principle was applied in the case of Samson Ochonma v. Asirim Unosi (1965) N.M.L.R. 321.”
Also see: Onobruchere v. Esegine (1986) SC 385 at pp. 397 – 398; Thomas v. Holder 12 WACA 78.
Learned respondent’s counsel submitted that contrary to the submissions of learned appellant’s counsel, the pieces of evidence by the respondent and PW1 along with Exhibits A and C proved that the respondent has a better right to the possession and ownership of the property in question.
That now takes us to an examination of the averments of the respondent’s further amended statement of claim and the evidence proferred by him and PW1 thereon to see whether indeed the respondent proved a better right to the possession and ownership of the property in question.
The relevant paragraphs of the respondent’s Further amended statement of claim with respect to the payment of the purchase price of N35,000.00 for the property to the appellant and the handing over of the same property’s title documents to him are paragraphs 4, 5, 6, 7 and 8 thereof. See pages 86 – 87 of the record of appeal.
In order to prove the said averments, the respondent called Mr. Jerry Onorofe who testified as PW1 at pages 77(a) to 77(e) of the record of appeal. He said in part:
“I brought the plaintiff in to buy the property. The agreed price was N35,000.00. The money was paid to the defendant on 17/6/91 cash. It was in my presence. The defendant asked me to write a receipt which I wrote. The defendant signed, the junior brother of the plaintiff signed and I signed. The plaintiff was not there.”
The purchase receipt was identified by the PW1. It was admitted in evidence. It is Exhibit A. PW1 under cross-examination said:
“The buyer’s name is not written in full on Exhibit A because it is a temporary receipt pending the execution of the deed …………. I cannot remember the denomination of the N35,000.00. It was in N20.00 and N10.”
The respondent as plaintiff testified for himself. See pages 80 – 81, 105 – 108 (Examination- in- chief) and 112 – 113 for his cross-examination. In his examination-in-chief, respondent said:
“I gave my Manager, late Sunday Onoyifeke a U.B.A. Warri cheque to collect the money. While my manager and Mr. Jerry were going to Effurun with the money I went to collect the deed from Mr. Wanogho. By the time I got there the money has been paid. She issued a receipt. I also saw the money with her.” Respondent then identified Exhibit A.
The evidence of the PW1 and the plaintiff/respondent relating to the payment of purchase price of N35,000.00 cash to the appellant, up to the time of the examination-in-chief of the respondent, was that he was not present when the alleged payment was made to the appellant on 17/6/91.
The respondent, during his cross-examination on the same point said, to wit:
“I paid N35,000.00 to the defendant for the whole building. That was the amount we agreed upon. I am not a money lender. I paid the money’97 N35,000 in N20 note. I handed the money over to Jerry who counted it and handed it to the defendant in my presence before he signed. I gave her seventeen and half (17’bd) bundles of N20 notes.”
Glaringly, even without the assistance of a magnifying eyeglass, it is clear as crystal to me, that the evidence extracted from the respondent under cross-examination runs counter to his evidence-in-chief and also at cross purposes with the evidence of the PW1. To my mind, the evidence by the respondent added poverty and not prosperity in proving the payment of the purchase price of N35,000.00 allegedly paid by him to the appellant for her property in question on 17/6/91. Thus, the evidence proferred by the respondent was not only inconsistent, but contradictory to that of the PW1. Therefore, it cannot be said at that stage that the plaintiff/respondent’s case had even gotten up from his side, needless to consider the appellant’s case. Hence the respondent’s claim merited nothing but a dismissal. Aromire v. Awoyemi (supra); Onobruchere & Anor v. Esegine & Anor. (1986) SC 385 at 398.
Indeed, with respect to Exhibit A, which is the linch-pin of the respondent’s claim, the learned trial judge, found and held at page 168 of the record of appeal, that “Exhibit A was not elegantly” drafted. I agree with him. However, I am not on the same page with him when he further said Exhibit A binds the appellant. I have myself perused Exhibit A. There are questions which beg for answers with respect to that document. For example, if the appellant was present there at the time of payment, why was the money N35,000.00 not paid to her directly? Why was the said money received by Mr. Jerry Onorofe (PW1) on her behalf if at all she was there physically? Who was the appellant’s/seller’s witness to the payment, just as the respondent/buyer had a witness to the alleged payment? One more question: What was the date of the alleged payment as per Exhibit A?
Undoubtedly, the law is firmly settled that documentary evidence remains the best evidence through which claims in court can easily be proved and also disproved. A.G. Bendel State v. UBA Ltd (1986) 4 NWLR (pt. 37) 547; Agbareh v. Mimre (2008) 2 NWLR (pt. 1071) 378 at 411. Hence, documentary evidence is the hanger or yardstick upon which oral evidence by witnesses in an action are assessed. Olujinle v. Adeagbo (1988) 2 NWLR (pt. 75) 238; Ndukwe v. Ojiakor (2013) NWLR (pt. 1356) 311 at 328. Therefore, oral evidence by a party and/or his witness proferred in relation to a document already admitted in evidence at his instance, must be in tandem with that document which cannot be varied, altered or added to by oral evidence. Da Rocha v. Hussain (1958) SCNLR 280; SCOA (Nig) Ltd v. Bourdex Ltd (1990) 3 NWLR (pt. 138) 380; Union Bank of Nigeria v. Prof. Albert Ozigi (1994) 3 SCNJ 42; Living Faith Church Otukpo v. M. Adole (2005) All FWLR (pt. 276) 784 at 798; Adegbayi v. Ishola (2003) 11 NWLR (pt. 831) 343 at 376 – 371. Oral evidence is to throw more light on the documentary evidence/exhibit.
Before I am done with Exhibit A, I should say that if it was indeed a purchase receipt rightly so called, it could not have been correct as labouriously argued by learned counsel to the appellant, that it was null and void and so inadmissible in evidence because it was an instrument meant to transfer land under section 2 of the Lands Instrument Registration Law 1976 of Defunct Bendel State and applicable to Delta State and it was not so registered. The correct position of the law is that submitted by respondent’s learned counsel to the effect that Exhibit A being a purchase receipt required no registration for it to be admitted in evidence. It is not a registrable instrument which required registration under Section 2 of the Lands Instrument Registration Law 1976 aforementioned. A purchase receipt is no more than being evidence of payment and acknowledgement of the same for the sale of a portion of land covered by it. Thus, generally an unregistered land sale agreement is good evidence which creates an equitable title in favour of the purchaser. Obijuru v. Ozims (1985) 2 NWLR (pt. 6) 167 at 179 – 181; (1985) 4 SC 142; Okoye v. Dumez (1985) 6 SC 3; (1985) 1 NWLR (pt. 4) 783.
Thus, even where a purchaser of a portion of land or lessee comes into possession of land vide a registrable instrument which was not registered and he had paid the purchase price or money to the vendor or lessor, he has acquired an equitable interest in the land which is as good as a legal estate defeatable only by a purchaser of the land who had no prior notice of the prior equity. Agbabiaka v. Okogie (2004) 15 NWLR (pt. 897) 503 SC; Kanike v. Fayomi (2006) All FWLR (pt. 309) 1440 at 1461; Okoye v. Dumez (supra): thus a registrable instrument though unregistered is admissible in evidence in order to prove equitable interest and payment of purchase money or rent; Also see: International Beer and Beverages Industries Ltd.
v. Mutunci Co. (Nig) Ltd (2012) 6 NWLR (pt. 1297) 487 at 524; Ero v. Tinubu (2012) 8 NWLR (pt. 1301) 104 at 125; Ogunbambi v. Abowaba (1951) 13 WACA 222; Nsiegbe v. Mbemena (2007) 4 SCNJ 359 at 386.
Now to Exhibit “C” – the Deed of assignment. This, clearly to my mind, is a registrable instrument. However, although it was not registered, that did not affect its admissibility in evidence. The analysis I made above with respect to Exhibit A, to the effect that where a registrable instrument is not registered, nonetheless, it is admissible in evidence for it to be used in proving an equitable interest and a legal estate in favour of the purchaser of land applies mutantis mutandis. The same authorities such as Okoye v. Dumez (supra); Nsiegbe v. Mbemena (supra), just to mention a few, are apt. However, I have examined Exhibit C. Who are the parties thereto? It is said to have been signed, sealed and delivered by the within named ASSIGNEE – “MR. LUCKY OKIEMUTE ONAYIFEKE (ASSIGNEE)”. The appellant herein is named ASSIGNOR and she was said to have signed, sealed and delivered Exhibit C.
The respondent in his evidence at page 81 of the record of appeal said the appellant signed both Exhibits B and C. The appellant on the other hand under cross-examination at pages 117 & 118 of the record of appeal, agreed that she signed Exhibit “B” – the Deed of conveyance between her and the Itsekpor family who sold the land to her. That is true, ex facie in Exhibit B. However, the appellant denied signing Exhibit “C”. I have myself perused the alleged appellant’s signature on Exhibit C. It is not the same as her signature in Exhibit B. Odutola v. Mabogunje (2013) 7 NWLR (pt. 1354) 522 at 549 – SC. In the circumstance it cannot be said that Exhibit C binds the appellant. Therefore, a fortiori, Exhibit C transferred nothing to the respondent, in respect of appellant’s property at No. 17B, Okoloba Street, Effurun, Delta State. The law is as succinctly stated by the eminent jurist, Katsina-Alu, JSC (as he then was) in Gabriel Iwuoha & Anor v. NIPOST & Anor. (2003) 110 LRCN 1622 at 1645, inter alia:
“Evaluation of a document is not within the exclusive preserve of the trial Judge. Both the trial Judge and the Appellate Judge have equal right to evaluate a documentary evidence.
This is because, unlike oral evidence which an appellate Judge does not see, he sees like the trial Judge, the document as Exhibit. Therefore where the finding of a trial Judge on a documentary evidence is perverse, an appellate Judge will easily see the perversion and employ his appellate power to correct it.”
Having come to the conclusion that neither Exhibit A – the purchase receipt nor Exhibit C – the deed of Assignment upon which the respondent anchored his claim at the court below was demonstrated by the respondent to prove his alleged better title to and possession of the property at No. 17B Okoloba Street, Effurun, Delta State, I am of the considered opinion that the learned trial judge did not properly assess and evaluate the pieces of evidence proferred in the case of the respondent. His findings are clearly not borne out of the evidence before him. His findings, to my mind are perverse.
The findings of a trial court is said to be perverse when the findings run against the grain or counter to the evidence and pleadings or where it has been shown that the trial judge took into account matters which it ought not to have taken into account or shuts its eyes to the obvious. Kuma v. Kuma (1936) 5 WACA 4; Akinloye v. Eyiyola (1968) NMLR 92; Isah Onu v. Ibrahim Idu (2006) 6 SCNJ 23 at 45 – 46.
In the instant case, the learned trial judge clearly gave prominence to Exhibits A and C as having proved or established respondent’s better title to and possession of the land in question. He did not properly assess the inconsistent testimony of the respondent vis-a-vis that of the PW1 with respect to the alleged payment of N35,000.00 to the appellant for the property in question. He closed his eyes to the obvious inadequacies in Exhibits A and C. He concentrated on the weakness of the appellant’s case rather than the obvious weakness in the respondent’s case.
The law is trite and has remained well settled that it is the plaintiff/claimant like the respondent herein, who had the onus to prove his claim to the title, particularly in a claim with respect to declaration of title to land, on the strength of his own case and not on the weakness of the defendant’s case. The authorities on this principle are common place. A few will suffice. Kodolinye v. Odu (1935) 2 WACA 336; Elufisoye v. Alabetutu (1968) NMLR 298 at 302; Vincent Bello v. Magnus Eweka (1981) 12 NSCC 48 at 61; Ohiaeri v. Akabeze (1992) 2 SCNJ (pt. 1) 76 at 86; Ayanru v. Mandilas Ltd (2007) 10 NWLR (pt. 1043) 463 at 477 – 478; Dumex Nig. Ltd. v. Peter Nwakhoba & Ors. (2009) All FWLR (pt. 461) 842 at 850 SC; PDP v. INEC (2012) 7 NWLR (Pt. 1300) 538 at 561. The search light is squarely on the plaintiff’s case. Therefore, declarative reliefs are not granted on a platter of gold. They are granted as products of credible and consistent/cogent hard evidence at the instance of the plaintiff/claimant and his witnesses only. The weakness of the defendant’s case or no defence at all, does not assist the claimant for a declaration relief, hence the focused attention is on the plaintiff/claimant, except where there is a counter-claim by the defendant who then turns to be a claimant and the attention is turned to him to prove the strength of his own counter-claim. That is how it goes. And the defence of the plaintiff to the defendant’s counter-claim will not be of any assistance to the defendant counter-claimant.
Indeed, the learned trial judge was eminently positioned to assess and evaluate the evidence placed before him. The procedure for evaluation of evidence by a trial court was more recently re-echoed by the apex court in Ndukwe v. Ojiakor (2013) 8 NWLR (pt. 1356) 311 at 336 per Alagoa, JSC who restated the procedure as enunciated by the apex court in Mogaji v. Odofin (1978) 4 SC 91 at 94 inter alia:
“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses.”
Also see Melford Agala & Ors. v. Chief Benjamin Okusin & Ors. (2010) 4 SCNJ 1 at 18; Major Umoru (Rtd) v. Alhaji Zibiri & Ors. (2003) FWLR (pt. 172) 1920 at 1934.
Now, if there is a complaint that the trial court did not make findings based on the evidence placed before him, as in this case, the appellate court is in as good a position as the trial court to do its own assessment and evaluation of the evidence laid before the trial court. Narumai & Sons Nig Ltd. v. Niger Benue Transport Co. Ltd (1989) 2 NWLR (pt. 106) 730. And where the appellate court finds that there are inadequacies on the part of the trial court in reaching its decision which is perverse, an appellate court has a duty to examine the conclusions and inferences by the trial court and then re-evaluate the evidence in order to come to its own judgment, (which I have already done) to see that justice is done. Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360; Oghoda V. Adulugba (1971) 1 All NLR 68; Eki v. Giwa (1977) 2 SC 131; Lion Building Ltd. v. Shadipe (1976) 12 SC 135; Durugo v. The State (1992) 7 NWLR (pt. 255) 535 at 535; Adegboyega Ibikunle v. The State (2007) 1 SCNJ 207.
In view of the foregoings, I am satisfied that appellant’s issue 1 is not lacking in merits. It has onions and the same is resolved in favour of the appellant against the respondent.
I shall take appellant’s issues 2 and 3 together vis-a-vis respondent’s issue 3.
Arguing Issue 2, learned appellant’s counsel contended that since the respondent did not prove his better title and possession to the land in dispute, it was wrong of the learned trial judge to have awarded the alternative claim of N3,850,000 to him as the value of the property as at the time of judgment on the action. Learned counsel wondered how the sum of N3,850,000 was arrived at when there was no evidence by an estate valuer as to the condition of the appellant’s property as at the time of judgment. He relied on Ihekwuaba v. ACB Ltd. (2004) 115 LRCN 3165 at 3179. Furthermore, it is the contention of the appellant that the alternative claim falls within the realm of claim for special damages and this was not specifically pleaded and strictly proved by the respondent. He relied on Neka Ltd v. ACB Ltd. (2004) 115 LRCN 2949 at 2977.
Learned appellant’s counsel also contended that the award of N3,850,000 to the respondent was speculative. He relied on Kode v. Yussuf (2001) 84 LRCN 521 at 549. He furthermore, submitted that if the respondent had proved that there was a contract between him and the appellant for the latter to sell her premises to him, and the appellant repudiated the contract, the respondent was entitled to no more than the return of his purchase money of N35,000.00 he allegedly paid to the appellant, with interest on the said purchase money. He referred to Order 40 Rule 7 of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988, applicable to Delta State. Learned counsel found support for this submissions in Mc Gregor on Damages 15th Edition at page 555, paragraph 871 thereof; Ojikutu v. Demuren (1957) 2 FSC 72 at 73.
Mr. Odiete, for the appellant, rounding up on this issue, submitted that since the learned trial judge found and held that an expert ought to have testified with respect to the value of the appellant’s property and which was not done, he ought not to have awarded the alternative claim of N3,850,000 to the respondent.
Furthermore, that the award of N60,000.00 also to the respondent, amounted to double compensation.
With respect to issue 3, learned appellant’s counsel contended that the order made by the learned trial judge compelling the appellant “to honour the agreement of the parties by returning the plaintiff to the physical possession of the property” was not asked for by the respondent and that a court is without power to grant a relief which a party did not ask for. He relied on Ekpeyong & Ors. v. Inyang Effiong Nyong & Ors. (1975) 2 SC 71 at 80.
On his part, learned respondent’s counsel, arguing his own issue 3, submitted that the claim for N3,850,000 was in the alternative, in the event that if the court declined to make an order for specific performance, possession and injunction, it should grant the said alternative relief. He relied on The My Caroline Maersk “Sister Vessel To MV. Christain Maersk & Ors. v. Nokey Investment Ltd (2003) FWLR (pt. 113) 213 at 233 – 234. Learned counsel submitted also that the grant of the alternative relief of N3,850,000 represents the value of the property in question or the current value of the purchasing power of the sum of N35,000.00 paid by the respondent to the appellant in 1991. Furthermore, he submitted that the grant of N60,000.00 in favour of the respondent was for rents on the property since the learned trial judge had held that the respondent was entitled to the ownership and possession of the property in question.
Mr. Diejomaoh, for the respondent, in justifying the award of N3,850,000 by the learned trial judge, in favour of the respondent, submitted that the court below had the power to take judicial notice of the dwindling value of the Naira. He referred to Shehu v. Afere (1998) 7 NWLR (pt. 556) 115; Awaye Motors Co. Ltd v. Adewunmi (1993) 5 NWLR (pt. 292) 236.
Paragraph 20(d) of the further amended statement of claim earlier reproduced in this judgment, is with respect to the alternative claim of N3,850,000.00 as the current value of the purchasing power of the sum of N35,000.00 allegedly paid to the appellant by the respondent. At paragraph 14 of the Further amended statement of claim, the respondent averred to the effect that the value of the naira had fallen to about N220.00 to ?1 and about N120.00 to one dollar; hence the value of the property in question was more than N3,850,000.00. And “at the hearing, plaintiff shall rely on newspaper publication as regards the current value of the Naira and also other publications whatever about the value of the Naira to other major currencies”. This was denied by the appellant at paragraph 22 of her Further amended statement of defence and that as at 1991 her property in question was worth N1,500,000.00.
The respondent in his evidence at page 108 of the record of appeal testified to the fact that as at 1991 when he bought the said property, “N35,000.00 was too much”, and that the “Exchange rate was about N2.00 to ?1 and 78 kobo to $1.00.” Furthermore that at “present N156.00 to ?1.00 and N85 to $1.00.” This was as at 23rd May, 1999. The respondent, in concluding his evidence said:
“I am claiming N3,850,000.00 in the alternative.”
Respondent’919191s Further amended statement of claim was dated 6th January, 1999. As at then, by his pleading the exchange rate was N220.00 to ?1 and N12.00 to $1. However as at 23rd April, 1999 when he gave evidence, the exchange rate was “N156.00 to ?1.00 and N85 to $1.00″; whereas the time he bought the said property in 1991, the exchange rate was about N2.00 to ?1 and 78 kobo to $1.00”
From the showing of the respondent above, the exchange rate between the Naira and the pound sterling and dollar was not static. Now, at what rate or on what basis did the learned trial judge award the alternative claim of N3,850,000 to the respondent? His Lordship, at page 173 lines 15 to 29 of the record of appeal, held thus:
“Ordinarily the evidence of an expert of the present value of the property would have been weightier. However the plaintiff has pleaded the amount attached, as the present value of the premises and/or the present value of the N35,000.00 paid for the property in 1991.
Evidence was adduced. The purpose of pleading is to give notice to the other side of what he will meet at the trial. Though the defendant denied paragraphs 14 and 20 of the Further Amended Statement of Claim, no alternative figure is pleaded as the possible value of the premises as at now. The only thing pleaded in paragraph 22 of the Further Amended Statement of defence is that the value of the property as at 1991 was N1,500.00. No evidence was given to contradict the evidence of the plaintiff on this issue.”
The learned trial judge, clearly was of the opinion that evidence of an “expert of the present value of the property would have been weightier.” However the respondent provided no such expert evidence, yet the claimed sum of N3,850,000.00 was granted to him because “no evidence was given to contradict the evidence of the plaintiff on this issue”. Does it mean that if the respondent had claimed, say: N10m, the learned trial judge would have granted it to him hook, line and sinker? An unchallenged or uncontradicted piece of evidence given by a witness, must still be evaluated for its cogency and/or credibility by the trial judge before he attaches any weight to it and accept it to prove a claim. Thus, the court does not just accept any evidence hook, line and sinker merely because it was not challenged nor contradicted by the other side – opposing party. Attorney General, Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (pt.92) 1.
The respondent, merely said: “I am claiming N3,850,000.00 in the alternative.” And he was just believed by the learned trial judge, who earlier, had formed the opinion that an expert’s evidence on the current “value of the property would have been weightier”, when there was no such evidence by an expert.
The essence of the evidence of an expert, an estate valuer, in a situation such as it presented itself at the court below was stated by the apex court in Ihekwoaba v. ACB (2004) 115 LRCN 3165 at 3179, thus:
“…….. True enough there was evidence that the property was valued by the valuer at the time the mortgage was being executed at N194,000.00. But no valuer gave evidence as to the value of the property at the time of sale. A number of factors would have to be taken into consideration in determining whether the value of the property has appreciated or depreciated. This would depend on such, factors as state of repairs of the property at the time of sale and market value of the property at that time.
The Respondent led no evidence on these factors. They relied on the ipse dixit of the 1st Respondent”
The fact that the respondent pleaded an alternative claim of the sum of N3,850,000.00 and in his evidence in court, repeated the same claim without more, could not have entitled him to that claim.
Undeniably, if the respondent had proved that he had a better right to the title and possession of the aforementioned property, (which I have held earlier in this judgment that he did not) and the contract of sale of the property was repudiated by the appellant, the former was at least entitled to the recovery or return of his alleged purchase money of N35,000.00 and some other costs he had expended or incurred with respect to the transaction relating to the said property. This was well stated by the Supreme Court in Ojikutu v. Demuren (1957) 2 FSC 72; (1957) SCNLR 353, per ABBOT, F.J., inter alia:
“It is manifestly clear in the first place that a man who pays money for land is entitled in the normal course of events to value for his money, and a part of that value must be represented by the title which he acquires by purchase. In this case, the respondent impliedly covenanted that he had a good right to convey the property to the appellant, and it is obvious from what happened in suit No. 113/48 that in fact he had no such right, because a competent court has decided that he had no title to the property. Quite apart therefore, from the express covenant, which, in my view, extends the ambit of the implied covenant, the appellant is obviously entitled at the very least to the return of his purchase money. On the authorities of such cases as Rolph v. Crouch, L.R. 3 Exch. 44 Smith v. Compton I.L.J. (KB) 146, and Bunny v. Hopkinson 29 L.J. (CH). 93 he is also entitled to legal costs, to monies advanced for buildings, to costs of plans and to the cost of clearing the land for building. I do not consider however, that he is entitled to anything for general damages.”
Perhaps, if the learned trial judge was mindful of Order 40 rule 7 of the Defunct Bendel State High Court (Civil Procedure) Rules 1988 – applicable to Delta State, he would have been properly guided with respect to the respondent’s alternative claim. The said Order 40 Rule 7 says:
“The court at the time of making any judgment or order or at any time after wards……….as the court deem fit and may order interest at the rate not exceeding ten naira per annum……………..”
Hence the respondent’s alleged N35,000.00 which was paid in June, 1991 could not have been said to be dormant and without any interests thereon as at May, 2001 when judgment was given at the court below: spanning a period of almost ten years. It would have been unconscionable to have held otherwise.
This position is well supported by the learned authors of Macgregor on damages 15th Edition at page 555 paragraph 871, to wit:
“When the seller refuses to proceed with the contract in such circumstances as amount to repudiation or discharging breach, several remedies are available to the purchaser. In the first place he may resort to the equitable remedy of specific performance, or secondly he may treat the breach as discharging the contract, restored benefits received, if any, and recover back quasi – contractually his deposit, any further part of the price he has paid and the expenses properly incurred in the investigation of the title. The recovery of this amount by the purchaser is sometimes erroneously called damages. This is perhaps to be explained by the fact that in an action for damages the purchaser will often recover the same amount as he would in the quasi contract action.”
I have considered the contention of the appellant’s counsel that the learned trial judge had no power to have granted the respondent’s alternative reliefs after he found for the respondent as being entitled to the “ownership and possession of the piece or parcel of land with the three bedroom bungalow on it situate at Adiwhe Bush, near Warri/Sapele Road, Effurun now known and called No. 17B Okoloba Street, Effurun, Delta State of Nigeria, more particularly described in Survey Plan No. MWC/992B/78 sold to the plaintiff by the appellant.”
I am of the considered opinion and in agreement with learned counsel to the respondent, that the court below had the power to consider the alternative reliefs and determine whether or not the respondent deserved to be granted any of the alternative reliefs. It is unnecessary to go into a hairsplitting exercise on this point, as I think that the answer to learned counsel to the appellant’s contention lies in the Supreme Court authority of THE MY CAROLINE MAERSK SITER VESSEL TO MV CHRISTIAN MAERSK & ORS v. NOKOY INVESTMENT LTD (2003) FWLR (PT. 13) 213 at 233 – 234, where the distinguished jurist, Ayoola, JSC., succinctly stated that:
“Where a Plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first or merely as an alternative, he can claim the subsequent relief.” Where the first and principle relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a “further or alternative relief: It was in this sense that this Court (per Kutigi (J.S.C.) In Agidigbi v. Agidigbi (1996) 6 NWLR (pt. 454) 300, 313:
“Where a claim by a party to a Suit succeeds and the Court grants same, there will be no need to consider any alternative claim thereto”
However, there may be cases in which the trial judge though satisfied that the facts established are sufficient for a grant of a first relief claimed, wishes to leave his view on record as to the alternative relief, in case he was wrong on the first. In such cases, it is a desirable practice that he considers the alternative relief in relation to the facts established, even though he should grant only the first. The advantage is that should the defendant appeal on the question of damages, the appellate Court will have on record the findings and opinion of the trial Court on the alternative relief, thus making it unnecessary to remit the case to the trial Court for consideration of the alternative relief. A Plaintiff who claims a principal relief and another in the alternative is to be taken as saying “On the facts alleged, I am entitled to the principal relief, but even if on these facts, I am not entitled to it, those facts will entitle me to this alternative relief.” Where the trial Court awards the principal relief and has pronounced the Plaintiff entitled also to the alternative relief in case he was wrong as to the one he granted, on an appeal by the Defendant on the question of damages, the Plaintiff did not need to have cross-appealed for the appellate Court to substitute the alternative relief for the relief granted, if the alternative relief is available and is the appropriate relief on the facts established. It is in this regard that it may be wiser for an aggrieved Defendant to show that the Plaintiff was not entitled to either of the reliefs.” Therefore, in deserving situations (not like the one herein) a trial court is eminently empowered to grant, apart from a principal relief claimed by a plaintiff, but also consider any alternative relief which is proved in the action. However, he cannot grant the principal relief and the alternative relief together.
In the circumstances of this case, neither the principal claim/relief nor any of the alternative reliefs was proved by the respondent. Therefore, issues 2 and 3 are resolved for the appellant against the respondent.
In sum, the appeal succeeds. It is accordingly allowed. The judgment of the Delta State High Court, holden at Effurun, dated 16th May, 2001 is hereby set aside. In its stead, the plaintiff’s suit No. EHC/242/93 is ordered as dismissed.
Costs of N50,000.00 is awarded to the appellant.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother TOM SHAIBU YAKUBU, JCA and I am afraid I have to depart from his views. I must make it clear that our divergent views on the findings of fact by the learned trial judge constrained me to depart from my brother. I have absolutely no quarrel with my learned brother’s superb and erudite exposition of the law based on his Lordship’s conclusions on the facts. In essence, we disagreed not on the law but on the facts. Since facts are the fountainhead of law, our conclusions perforce must be different. The facts that led to this appeal are as follows:
The Respondent as Plaintiff at the trial court by a writ filed on 23/9/1993 and paragraph 20 of his Further Amended Statement of Claim, asked for the following reliefs from the trial court.
“(a) A declaration that the plaintiff is the person entitled to the ownership and possession of the landed property lying being and situate at Adiwhe Bush near Warri/Sapele Road, Effurun now known and called No. 17B Okoloba Street, Effurun, Delta State, Nigeria a place within the jurisdiction of this Honourable Court and more particularly described in a survey plan No. MWC/992D/78 and which said property was demised to the plaintiff by the defendant by virtue of a Deed of Assignment Or
(b) Or in the alternative, plaintiff seeks an order of the Honourable Court compelling the defendant to specially perform the terms of the Deed of Assignment entered into by her and the plaintiff.
(c) An order of perpetual injunction restraining the defendant by herself, agents, servants or privies from interfering with the plaintiff’s right of ownership and possession of the demised property described in (a) above OR
(d) In the alternative, plaintiff claims the sum of N3,850,000.00 (Three million, Eight Hundred and fifty Thousand Naira) as the current value of the purchasing power of the sum of N35,000.00 paid to the defendant in 1991 and a further sum of N60,000.00 (Sixty Thousand Naira) per year from October, 1992 till date of judgment as rent at the rate of N5,000.00 (Five Thousand Naira) per month for the use of the demised property.”
Pleadings were duly filed, amended and exchanged between the parties. Each of the parties gave evidence and called witnesses at the trial. The case of the respondent both in his pleadings and evidence was that the appellant sold the premises in dispute to him. The respondent relied on exhibits “A” and “C” as the documents from which he derived title. I refer to paragraphs 7, 8, 9, 10 and 11 of the respondent’s pleadings. Exhibit “A” which is copied at page 178 of the record was tendered as an agreement and receipt while Exhibit C which was copied at pages 181-183 of the records was tendered
as proof that title passed and was headed Deed of Assignment. The appellant had denied in her pleadings and evidence that she did not sell her landed property to the respondent neither did she receive money from the respondent in respect of her landed property. She admitted that she requested from the respondent a loan of N20,000.00 with N15,000.00 to be paid as interest. I refer to paragraph 13 of the Appellant’s Further Amended Statement of Defence. She claimed that no money passed hands and she was never paid a kobo by the Respondent. Sometime in 1993, the Appellant took policemen to eject the Respondent from the premises. Learned counsel for the respective parties addressed the court below and at the end, after a well reasoned judgment, the learned trial judge, entered judgment for the respondent, and granted the main and reliefs in the alternative.
The Appellant being dissatisfied, has appealed to this court. The appellant distilled three issues for determination which are set out below:
(1) Whether the Respondent has by evidence proved his case that made the learned trial judge give ownership and possession of the premises in dispute to the Respondent?
(2) Was the learned trial judge right in law to have ordered the appellant to pay to the respondent the sum of N3,850,000.00 which the learned trial judge took to be the value of the house or the Naira value when he gave judgment and also the sum of N60,000.00 per year for the use of the house by the Appellant?
(3) Was the learned trial judge right to have ordered the Appellant to return the Respondent to the physical possession of the property?
The Respondent’s counsel also identified the following issues for determination.
(1) Whether an estate contract evidenced by a purchase receipt, followed by an unregistered deed of assignment (such as Exhibits “A” and “C” respectively) with possession, are admissible in evidence and ground a claim for specific performance?
(2) Whether the evaluation of the evidence adduced before the trial judge, which led to the finding/conclusion of the learned trial judge is perverse?
(3) Whether the trial judge was right in granting the relief of the plaintiff in the alternative as claimed?
This appeal turns on the resolution of issue one as distilled by appellant’s counsel. That would be my focus in stating my differing opinion on the facts we have been asked to review.
ISSUE ONE
Learned Appellant’s counsel submitted that since the Respondent conceded that the Appellant was in actual physical possession of the property in dispute, the onus was on the Respondent as Plaintiff at the trial court to prove a better title to the property. He cited Chief Iman Ashaya Tijani v. Bishop Aboyede Cole (1958) LL.R. 58; Pius Amakor v. Benedict Obiefuna (1974) 3 SC 67; Coker v. Farhart 14 WACA 216; Danford v. Mcanty (1883) AC 456 at 462; Law & Practice Relating to Evidence in Nigeria by T. A. Aguda, pg. 259 para. 21.40; Bullen & Leak 12th Edition Pg. 67; Aromire v. Awoyemi (1972) ANLR 105 at 115 Reprint. He insisted that the respondent did not prove that he actually paid to the appellant the sum of N35,000.00 for the property in dispute. Counsel argued that on the facts, the trial judge was in error to have believed the evidence of the Respondent that that the evidence of P.W.1 and P.W.2 – the Respondent materially contradicted each other. Not only that, the evidence of both witnesses was at variance with paragraph 7 of the Respondent’s pleadings at the trial court. He cited the following cases Ituama v. Akpe-Ime (2000) 80 LRCN 2480 at 2496; Eze v. Atasie (2000) 79 LRCN 1998 at 2021; Ito v. Ekpe (2000) 75 LRCN 35 at 382; Nsirim v. Unuma Construction Co. (2001) 85 LRCN 974 at 989 & 990.
Learned Appellant’s counsel also argued that the trial court ought not to have believed the evidence of the respondent that he was put into possession of the property by the appellant between 1991-1993 as claimed in paragraph 11 and 11b of the amended statement of claim since he did not call any of the tenants who were allegedly introduced to him by the appellant.
Counsel complained that Exhibit C – the deed of assignment being a registrable instrument by virtue of S.2 of the Land Instruments Registration Law Cap 81 Laws of the Defunct Bendel State, applicable to Delta State, being unregistered was inadmissible in evidence as a document transferring interest in land. He urged this court to reject and expunge the evidence as proved by both Exhibits A and C being evidence wrongly admitted.
Learned Appellant’s counsel argued that having failed to obtain Governor’s consent to the transaction before delivery of possession to the purchaser, any sale of property is null and void. Counsel argued that in spite of the case of Owoniboys v. UBN Ltd. (2003) 110 LRCN 1725 at 1743.
Learned Respondent’s counsel in response argued on the points as raised by learned appellant’s counsel that the respondent had acquired an equitable interest in the property which was enforceable by specific performance. The respondent had tendered Exhibit A the purchase receipt and Exhibit C the deed of assignment not as documents of title but as purchase receipts. He cited Ayorinde v. Fatoyin (2001) FWLR Pt. 75 Pg. 483 at 506; Aneze v. Anyaso (1993) 5 NWLR Pt. 291 Pg. 1; Djukpan v. Rhorjhadjor Orovuyoube & Anor. (1967) NMLR 287; Okoye v. Dumez Nig. Ltd. (1985) 1 NWLR Pt. 4 Pg. 783.
Counsel argued that it was the duty of the appellant as vendor to secure the Governor’s consent to the transaction. Having not done so, she cannot turn around to benefit from her wrongful act.
Learned Respondent’s counsel urged this court not to disturb the findings of fact of the trial court who had the benefit of hearing and seeing the demeanor of the witnesses in the box. He cited Osolu v. Osolu & Ors. (2003) FWLR Pt. 172 Pg. 1777 at Pg. 1794; Major Umoru v. Alhaji Zibiri (2003) FWLR Pt. 172 Pg. 1920 at 1934.
Let me first address the issue of whether or not on the evidence, the learned trial judge’s findings were perverse. Let us consider the evidence. Exhibit A is the basis of the claim of the Respondent. It is a receipt for the sum of N35,000.00. The appellant said she was never paid any money. The respondent said that she was paid the money. The respondent as plaintiff’s testimony is on Pg. 80-81 of the record. It is as follows:
“I gave my manager, late Sunday Onoyifeke a UBA Warri cheque to collect the money while my manager and Mr. Jerry were going to Effurun with the money I went to collect the deed from Mr. Uwanogho. By the time I got there the money has been paid. She issued a receipt. I also saw the money with her. The witness identifies Exhibit A. Mr. Uwanogho asked me to request the defendant to bring the deed with which she bought the land. The defendant brought it and gave it to me and we both signed the one prepared by Mr. Uwanogho. A survey plan was attached to the deed she gave me. The witness identifies Exhibit B.”
Under cross examination, the Respondent stated at pg. 112 of the record:
“The Exhibit A was written by my secretary who was a relation to the defendant. They are family relations. I paid N35,000.00 to the defendant for the whole building. That was the amount we agreed upon. I am not a money lender. I paid the money N35,000.00 in N20 note. I handed the money over to Jerry who counted it and handed it to the defendant in my presence before he signed. I gave her seventeen and half (171/2) bundles of N20 notes.”
The argument of the learned appellant’s counsel is that the evidence of the Respondent under cross examination in relation to who gave money to the Appellant contradicted his pleadings.
Let me set out the reasoning and finding of the trial court on this important fact of whether or not the respondent proved that he paid money to the appellant. The learned trial judge also considered the issue of contradiction raised by appellant’s counsel at the trial court. At Pg. 153-154 of the record, his Lordship reasoned thus:
“Further evidence from the plaintiff and his witnesses is that the agreed purchase price for the property, situate at No. 17B Okoloba Street, Effurun was N35,000.00 and this amount was paid to the defendant in the house of the PW1’s mother and the temporary receipt, exhibit A was written by the PW1 and it was signed by the defendant and others. Exhibit C was later prepared and executed by parties, after the defendant has handed over her title deed in respect of the premises to the plaintiff.
The defendant denied offering her said property for sale. On the contrary she negotiated for a loan of N20,000.00 with interest of N15,000.00. She handed over her deed to the plaintiff but she was not after all given any money.
The PW1 and the plaintiff were extensively cross examined on this aspect of the case. The evidence of the PW1 and the plaintiff was not shaken in my opinion. It is submitted that the evidence of the plaintiff conflicts the evidence of the PW1 as to the denomination of the money used in paying the defendant. The conflict if any, in this area is not material as to have any devastating effect on the plaintiff’s case. It is not every conflict that can destroy the case of a party. Not many people will carry in their heads the denomination of the money they paid in all the transactions they have made in their lives. Conflict in order to derail the party’s case must be relevant and material. The defendant said the agreement reached was for the plaintiff to give her a loan of N20,000.00 with N15,000.00 as interest on the loan. From that evidence I am satisfied that N35,000.00 was involved and agreed upon by the parties.”
I agree with the learned trial judge that not all contradictions in the evidence of a witness would amount to such that would defeat the evidence of the witness and make it unreliable. The fact that the Respondent claimed that he came back to the house where money passed hands between PW1 and the Appellant and he used the phrase “I paid her” does not detract from the main fact sought to be proved by the respondent which was that his brother PW1 paid on his behalf the sum of N35,000.00 to the appellant. The fact that the respondent stated that the money was handed over to the appellant in his presence in my view correlates with his evidence in- chief that when he came back from collecting the deed from Mr. Wanogho, he saw the money with the appellant. It is conceded that it is the duty of a court to reject contradictory and inconsistent evidence.
See Okolo v. Dokoto (2006) 7 SCNJ 284. It is not every contradiction that would lead to the rejection of evidence.
Let us even consider without admitting or conceding that there was a contradiction in the evidence of the respondent. That contradiction was a minor detail. Where contradictions occur in the evidence of a witness it is of no effect unless they are material, substantial and affect the live issues in a suit and can affect the decision on it. See Usiobaifo & Anor. v. Usiobaifo (2005) 1 SCNJ 226. In my humble view, it is immaterial whether the respondent stated that he was not there when the money was actually given to the appellant, but that he saw the money with the appellant. Whereas under cross-examination, he stated that he gave the money to the appellant. We must understand the con of the facts elicited under cross-examination. The appellant had refused point blank that she ever received any money from the respondent or PW1.
Much ado was made by the appellant in the brief regarding the fact that the appellant insisted on not having signed exhibits A and C and the failure of the learned trial judge to believe the appellant.
I have to set out the reasoning of the learned trial judge on this crucial issue of fact. Let me set out Pg. 154-155 of the record.
“Another issue raised is whether the defendant received any money from the plaintiff and how much. The evidence from the plaintiff and his witness is that N35,000.00 was paid to the defendant. The defendant denied receiving a kobo from the plaintiff. Exhibit A was allegedly signed by the defendant receiving the money and she subsequently signed Exhibit C. It is said that apart from signing exhibits A and C he has earlier parted with the deed with which she purchased the land. The evidence is that the transaction took place on 17/6/91 and the police did not know about it till about September 1993. The question which has not been answered by the defendant effectively or at all, is whether the defendant is such a woman who could have parted with her vital documents relating to her landed property without any protest. I do not see the defendant as a woman who could have done so. It is in evidence that the police released the plaintiff and others after hearing from them. The document, Exhibit B remained with plaintiff till it was tendered in this Honourable Court. The defendant did nothing about it. There is nothing before me to explain the reason for the defendant’s silence over her deed remaining with the plaintiff without receiving any consideration for it.
It is in evidence and it was vigorously argued that the defendant is an illiterate who could not read and write and as such she could not have signed Exhibits A and C. I have compared the signature of the defendant in exhibits A and C with her signature in exhibit B, the deed, within which she originally purchased the land; and other exhibits i.e. Exhibits O, the rent receipt she issued to one Mr. Victor Isiramen, Exhibits N to N19 another set of rent receipts she allegedly issued to her alleged only tenant Mr. Godwin Uguru covering February 1991 to 14/7/99. I am satisfied after comparing the strokes and the curves that the signature on all the documents belong to the defendant. I hold that the signature of the defendant on Exhibits A and C is her authentic signature and not forgery. The sophisticated signature contained in all the aforementioned documents is not, in my opinion that of an illiterate woman. Her evidence before their Honourable Court has not portrayed her as someone who graduated in Igbudu Warri market English. I disbelieve the defendant when she said that she is an illiterate woman who could not read or write, and that her signature on Exhibits A and C is forgery. I believe the plaintiff and his witness that defendant received N35,000.00 from the plaintiff on 17/6/91 and the defendant read and signed Exhibits A and C after she has surrendered her deed.”
I have also taken the pains to examine Exhibit “A”, Exhibit B and Exhibit “C”. I also share the firm view of the learned trial judge that the appellant signed all three exhibits, since the main features of the signatures remain the same. Even without being a handwriting expert, it is obvious, at least to me, that the same hand wrote all the three signatures.
The Appellant has urged the view that the Respondent did not prove the case that there was any transaction involving sale of land at all and that the Respondent was never put in possession of the property at any time. At Pg. 117-118 of the record, the Appellant swore as follows:
“I know PW1’s mother before I know the plaintiff. I knew the plaintiff when I was looking for money to borrow. I inform the PW1’s mother about my need. She said she has no money because she has loaned her money out. She said when her son’s boss who travelled comes back she will ask him to lend me the money. One day the woman came to tell me that the man – plaintiff has returned.
Immediately I followed her to her compound back of Hotel De Mark. PW1 and his mother asked me how much I needed. I told them I needed N20,000.00. I went home. After two days I was called. I was told I will be given the money but I must produce something. I produced my deed for my house. After that they went. No agreement was discussed. I was not given the money. I did not sign any agreement with the plaintiff. They took away my deed. I did not sign Exhibit C. I did not suggest that the Exhibit C should be back dated. I negotiated for the loan in 1991. I did not sell my house at No. 17B Okoloba Street, Effurun to the plaintiff for N35,000.00.”
The learned trial judge on this point after admirable and erudite reasoning made this findings on Pg. 157 of the record:
“I believe the evidence of the plaintiff and his witnesses that the transaction was a sale of the defendant’s property. I disbelieve the evidence that the transaction was for a loan which was aborted by the plaintiff. The defendant could not have parted with her deed. The feeble use of the police in 1993 is an after thought.”
I must emphasise that this case gave me some anxious moments by reason of the unwarranted aspersions cast on the reasoning of the learned trial judge by the learned appellant’s counsel. In order to put the issue of fact of whether the respondent was ever put into possession of the premises to rest, I have to set out extensively the reasoning of the learned trial judge. I compared assiduously his Lordship’s findings with the exhibits and the evidence on record I cannot find any fault in the trial judge’s reasoning and conclusion. I shall set them out forthwith as contained on Pg. 158-163 of the record:
“The next contested issue is whether the plaintiff was in possession pursuant to the transaction by the defendant. The PW1 said after the transaction, the plaintiff started to collect rent from the premises. The plaintiff too has maintained that after the transaction the defendant took him to his late brother Sunday Onoyifeke and the PW1 to the premises and introduced him to the tenants as their new landlord. He described how the three tenants occupying the building shared it. He gave the names of the tenants. The plaintiff late brother was introduced as the caretaker.
The defendant denied ever introducing the plaintiff to the tenants in the premises as their new landlord. She even denied ever having the tenants mentioned by the plaintiff in that premises. Going through the evidence on both sides one can find that in attempt to be clever one of the parties has put in more than what was necessary. The plaintiff in order to prove that he has been in possession and has collected rent from the premises before the defendant brought in police in 1993, call PW2 to tender documents to support his evidence that he took one of the tenants to court for arrears of rent. The plaintiff tendered exhibit E, a certified true copy of the proceedings before the District Customary Court, Effurun. The defendant tendered Exhibit K to contradict Exhibit E in order to show it was not an authentic certified true copy of that court’s record. A lawyer’s letter an adjournment in the matter was also tendered as Exhibit H1. A motion and the supporting affidavit for a stay of execution are also tendered as Exhibits H and H1. The writ of summons is Exhibit G. The record of proceedings in the case Suit No. EFDCC/273/92 page 14 thereof vol.5 of the record of the District Customary Court was tendered as Exhibit J. Chief J. J. A. Rerri spotted error and irregularities in certified documents. It is true that there seems to be much differences between Exhibits E and K. Exhibit J however put it beyond doubts that the plaintiff’s brother/caretaker was in court with one of the alleged tenants. The law is that the judgment and proceedings of the customary court should be taken with caution. The major consideration in customary courts is for quick, simple dispensation of substantial justice devoid of technicalities. See Oyelaran v. Adejorin (1979) 2 LRN 371 at 376; Ashiru Noibi v. R. J. Fikolati (1987) 3 SC 105 at 128. At any rate I have seen nothing wrong with Exhibit J.
The Registrar who certified Exhibits E and K made nonsense of his duties. I therefore believe the evidence of the plaintiff and PW2 that there was a suit between the plaintiff’s brother caretaker and one of the tenants he met in the premises, before the District Customary Court in respect of rent.
In order for the defendant to substantiate her denial that the plaintiff was ever in possession of the premises and ever collected rent therefrom. The defendant called DW1 and DW2. The DW1 was the chairman of the landlords/landladies association of Okoloba area of Effurun. He denied knowing the plaintiff as ever being the landlord of the premises in dispute. From this evidence I believe he was right. But that may not be the truth of the matter. Even the plaintiff said he never attended any landlords’ meeting in the area. From the evidence the plaintiff’s brother was his caretaker. He is not likely to frequent the area. The defendant who ought to tell the other landlords of what transpired had her own agenda. Failure of DW1 to know the plaintiff as the landlord for the relevant period is immaterial to the issue. Still on the DW1, he said he assumed that post on 27/3/97. He tendered Exhibit M under cross examination he said the names of the tenant of No. 17B Okoloba Street, Effurun in 1992 are not in Exhibit M. The names of the landlords in 1992 of the area are also not in Exhibit M. He said they are in old list. The old list was not tendered. The one tendered as Exhibit M covers 1998-2000, a period which is totally irrelevant to this case. The plaintiff said he went into possession of the premises in 1991 and he was chased out in 1993. The relevant period therefore is the list of landlords and tenants as at 1991 to 1993. From the evidence of the DW1 that list is available, that is, the old list he referred to is available. The defendant did not deem it fit to bring the Chairman of the Association and the list of the disputed period. No reason has been given for not producing that vital evidence. The law is that evidence or document which is available but is excluded because it will prejudicial to he who excluded it. See S.149(d) Evidence Act; Habib Nig. Bank Ltd. v. Koyo (1992) 7 NWLR Pt. 251 Pg. 43. I therefore hold that failure to produce the list of tenants in the premises as at 1991-1993 to debunk the contention of the plaintiff that the tenants mentioned by the plaintiff ever occupied the premises is fatal to the defence of the defendant. Though I see the DW1 as a simple honest man who has given evidence the way it was his evidence, is irrelevant to this case and has not advanced the case of the defendant. The defendant brought one Mr. Uguru to say that he was the only tenant who has been occupying the premises since 1991 till 2000. He tendered Exhibits N-N19 which he claimed to be the receipts issued to him by the defendant. The so called receipts came from a common receipt book. Anyone can purchase it in the market at any time. Exhibits N-N19 is numbered sequentially from No. 28 to 47. To contradict this witness Exhibit O was tendered through him. Exhibit O is a receipt issued to one Mr. Victor Isiramen by the defendant for rent covering January, February, March and April 1994, in respect of the same premises. The receipt is a specially printed receipt headed as follows:
“MADAM ENID SANKEY
NO. 17B, Okoloba Street, Effurun”.
What follows the heading read thus:-
“Remember not to sublet or transfer you room(s) or any portion of the premises to any body without the consent of the landlady. Any damage done to apartment must be repaired by the tenant concerned. Upon leaving the house, the key should be handed over to the landlady.
HOUSE RENT RECEIPT”.
The defendant has no answer to the conflict she created between Exhibit O and Exhibits N-N19 and the evidence of DW2. It should be noted that the plaintiff in his evidence has said that this same tenant, Mr. Victor Isiramen came into the premises after Christian Nwangwu has left. That is not all, exhibit M tendered by the defendant to show the names of landlords/landladies and their tenants, does not reflect the name of this witness until the year 2000 though the period covered by the exhibit is from 1999 and 2000. The evidence of DW1 covers 1997 to 2000. He did not say anything convening tenants. Ordinarily where honesty is radiating, the defendant should have tendered the whole record/list covering 1997-2000. One would have been able to see if the name of the DW2 appeared before the year 2000. The defendant should have tendered the list of tenants in that premises from 1991 to 2000 in order to prove that the DW2 Mr. Godwin Uguru has been the only tenant in that premises from 1991 to 2000. It is by doing so that the defendant can effectively counter the plaintiff’s evidence that he inherited three named tenants in the premises in 1991. The failure of the defendant to adduce the full evidence covering the relevant period ought to be resolved against the defendant. DW2 is the most miserable liar I have encountered in the witness box. He look nervous at the approach of every question put on him. He did not give his evidence with the boldness and courage required in telling the truth in the witness box. I attach no weight to Exhibit N-N19. They have been fraudulently assemble for the purpose of this case.
I reject the evidence of DW2 as worthless tissues of lies. I believe the evidence of the plaintiff that he was put in possession of the premises in dispute in 1991 and met and dealt with three tenants in the premises between 1991 and 1993 before the defendant wrest possession from him. Exhibit O issued by the defendant to another tenant in 1994 helps to bullify the evidence of the defendant and her acquired witness, the DW2, that he was the only tenant occupying the premises 1991 to 2000. I therefore hold that the defendant did not only surrender her deed Exhibit B to the plaintiff and executed Exhibit C in his favour, she also surrendered the possession of the premises to the plaintiff who collected rents as the landlord from the tenants named: Christian Nwogwu, Ojiaya and Julius Ome he met in the premises.
It is submitted that the failure of the plaintiff to call any of the tenants as witness is fatal to his case. It is my view that requiring a party to go into the world to look for the tenants who have once occupied a premises is a herculean task. Tenants in township are like soldiers. They come and go. The defendant has not shown that they are readily available and the plaintiff failed to call them as witness so as to attract the sanction under S.149(d) of the Evidence Act. I hold that the failure to call any of the tenants does not in any way effect the plaintiff’s case.”
Needless to say, I cannot agree more with the erudite reasoning and conclusion of the learned trial judge.
In this case, I have decided not to rely or put any credence on Exhibit C which is the deed of assignment purportedly signed by the appellant which has been denied by said Appellant. Exhibit C was executed in 1991 according to the evidence of PW1 and the Respondent. However, it was backdated to read 10/3/78 to reflect the year Exhibit B was executed between the Appellant and the original owners of the land. The date was allegedly suggested by the appellant which was denied. As much as I am in sympathy with the intendment of the learned trial judge on Pg. 168-169 of the record, I cannot agree that Exhibit C could be used to prove the transaction in 1991. The trial judge had said:
“Technicalities have been limited to a narrow confine in today’s justice by the court. It will be the triumph of dishonesty and fraud to allow the date suggested by the defendant to defeat this claim.”
However, the law is clear and established that oral evidence cannot be employed to vary, alter the contents of a document. Indeed, documentary evidence remains the best evidence before a court and is usually the parameter upon which oral evidence of witnesses are tested. See Union Bank v. Ozigi (1994) 3 SCNJ 42. Exhibit C in my view is worthless to sustain the claim of the Respondent. I have to mention however that if Exhibit C had been properly dated, and buttressed the oral evidence, it would have been given proper probative value as evidence which proved equitable interest in favour of the Respondent in spite of the fact that it was not registered nor Governor’s consent first sought and obtained before it was executed. See Nsiegbe v. Mbemena (2007) 4 SCNJ 359 at 386; Ero v. Tinubu (2012) 8 NWLR Pt. 1301 Pg. 104 at 125. Exhibit C being contrary to the pleadings and evidence of PW1 and the Appellant is inadmissible and has no probative value.
Let me go back to Exhibit A – the purchase receipt which I have found to bear the same signature as the signatures on Exhibit B. Exhibit A is admissible contrary to the arguments of learned Appellant’s counsel. It is not an “instrument” within the meaning of registrable instrument under S.2 of the Land Instrument Registration Law 1976 of Bendel State. I agree with learned Respondent’s counsel when he posited that a purchase receipt is no more than being evidence of payment and acknowledgement of the same for the sale of a portion of land covered by it. Thus, generally an unregistered land sale agreement is good evidence which creates an equitable title in favour of the purchaser.
Thus, the purchase receipt Exhibit A is admissible to prove that the Respondent actually paid the sum of N35,000.00 to the Appellant and consequently acquired an equitable interest in the property in controversy. I have considered the justice of this case. The learned trial judge stressed his observance of the demeanour and credibility of the witnesses. He stated that the appellant and her witnesses were obviously liars and that the respondent witnesses gave credible evidence. There is no doubt in my mind from the evidence on record that indeed there was a transaction in which it was resolved that the Appellant should part with her property at 17B Okoloba Street, Effurun to the Respondent in exchange for the sum of N35,000.00.
It is very important to note that as in this case where there is oath against oath, the learned trial judge was obliged to depend on the apparent credibility of the witnesses based on their demeanor in the witness box. There was a superb recounting and evaluation of the evidence of the witnesses by the learned trial judge. The evaluation and ascribing of probative value to oral evidence is the exclusive preserve of the trial court. The appellate court cannot interfere when findings of fact are supported by the evidence on record. See Usman v. Garke (2003) 7 SCNJ 38; Iwuoha v. NPS Ltd. (2003) 4 SCNJ 258.
This court can only re-evaluate the findings of fact made by the trial judge when they are not based on the credibility of witnesses. See Iwuorie Iheanacho & Ors. v. Matthias Chigere & Ors. (2004) 7 SCNJ 272.
In this case, the learned trial judge made us understand why he believed the oath of the Respondent and his witness against the oath of the Appellant and her witnesses.
His Lordship stated at Pg. 164-165 of the record as follows:
“It is my view that the evidence coming from the plaintiff’s side is more probable than the defendant’s evidence. The PW1 impressed me as a witness of truth. He and his mother did not seem to have anything at stake in this matter. They merely helped the defendant who is a relation of a sort to solve her financial problem. I do not believe that the PW1 would have helped the plaintiff to defraud her uncle’s wife whose daughter was still with them, according to him. He looked comfortable in the witness box. It is my view that evidence coming from the defendant herself justifies or in most cases confirms his evidence.
The plaintiff too impressed me as a witness of truth. I believe him when he said that he paid N35,000.00 to the defendant as the purchase money for the premises. Subsequent events which I have considered above seem to confirm his evidence. If he had not paid money to the defendant she would not have parted with her vital document nor would she have signed Exhibits A and C. She would not have put the plaintiff in possession of the premises. If he had obtained and retained the defendant’s document by fraud the police would not easily allow him to go with the document. He gave his evidence with ease in the witness box.
As to the defendant, she seems to have taken many things for granted. She looked too crafty for the innocent appearance she portrayed in the witness box. There are many issues she tried to dodge. She could not deny the evidence that she was the wife of late Mr. Egere the maternal uncle of the PW1. Though she confirmed going to PW1’s mother with her financial problem, she denied having any such relation with the PW1 and his mother. With her sophisticated signature on all the available documents she pretended that she is an illiterate. By all indication she put the plaintiff in possession of the premises. She sponsored the DW2 to lie on oath before this Honourable Court. She signed Exhibits N-N19 knowing full well that he was attempting to deceive the court. She brought in police to arrest the plaintiff and other persons involved in the transaction when she knew she has received money from the plaintiff.”
All the findings of fact based on the credibility of witnesses cannot be disturbed by this court.
In my view, Exhibit A has fulfilled the requirement of S.67(1) and (2) of the Property and Conveyancing Law. There was exchange of possession before the Respondent was dispossessed in 1993. The point was made that Exhibit A did not contain the signature of the Respondent. However, the evidence that is crucial in Exhibit A is that money was given to the Appellant through a relation or connection in respect of the property in question. One Jerry Onorofe who connected the parties signed as the person who received the money on behalf of the Appellant. Exhibit A was signed by the Appellant, the said Jerry Onorofe and the buyer’s witness. Jerry Onorofe (PW1) at the trial is a nephew of the Appellant since the Appellant was married to his late uncle.
I am persuaded upon my reading of the records and the judgment of the trial court that the findings of the trial court on the crucial question of whether or not the Respondent paid the sum of N35,000.00 in 1991 to the Appellant and was given possession of the property were correct and not perverse. The issue here is that the Respondent cannot be held to have proved legal title to the property in dispute because of the non evidential value of Exhibit C – the purported deed of assignment which was back dated and unregistered. The Respondent only proved equitable interest in the property. Not only that, he was not in possession when the action was filed by him. I do not agree with the trial judge that he was entitled to the first or second heads of his claim. However, he was certainly entitled to the third head of claim which is set out below in the further amended statement of claim as is contained in the further amended statement of claim paragraph 20(c) and set out on Pg. 93 of the record:
(C) An order of perpetual injunction restraining the defendant by herself, agents, servants and/or privies from interfering with the plaintiff’s rights of ownership and possession of the demised property described in (a) above, OR
I agree that the learned trial judge was entitled to consider and to grant the alternative head of claim in paragraph 20(d). However, I will not consider same here on appeal having held that the respondent proved that this court is obliged to enforce his equitable interest in the property. Where as in this case, there is no valid document passing title, but there is evidence on record of a purchase of landed property which in this case is evidenced by Exhibit A, the trial court and indeed this court will not lend itself to fraud by a party seeking to avoid a binding contract of sale, but the court to enthrone justice will order specific performance of the contract of sale. See Onayemi v. Idowu (2008) 9 NWLR Pt. 1092 Pg. 306; Mba-Ede v. Okufo (1990) 2 NWLR Pt. 135 Pg. 787; Jaffar v. Ladipo (1969) WLR 160; Dr. N. A. Iragunima v. Rivers State Housing & Property Development & Ors. (2003) 5 SCNJ 207; Nsiegbe v. Mgbemena (2007) 10 NWLR Pt. 1042 Pg. 364; Ohiaeri v. Yusuf (2009) 6 NWLR Pt. 1137 Pg. 207. I grant in part the relief of the plaintiff (now Respondent) in the High Court Suit No. EHC/242/93.
I hereby make the following consequential order. The Appellant shall within 30 days execute a deed of assignment of the property in dispute at No. 17B Okoloba Street, Effurun with survey No. MWC/992B/78 dated 2/3/78 to the Respondent.
As I took the pains to explain earlier, I am in complete agreement with my learned brother on his reasoning in respect of the law regarding Appellant’s issues 2 and 3. The conclusions would differ because of my own findings on the facts. Therefore a repeat of the said issues and resolutions which I already agree with are irrelevant for the purposes of this opinion.
In the final analysis, this appeal in my view turns on the resolution of issue one as distilled by appellant’s counsel. Having resolved same in favour of the Respondent, I am of the view that this appeal is completely devoid of merit and should be and is hereby dismissed. Parties to bear their own costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, J.CA. His lordship has painstakingly and incisively too, dealt with the pertinent issues that call for determination in the appeal and I am in complete agreement with the reasoning, exposition of the law, and conclusion in the lead Judgment.
The reliefs that the Respondent as Plaintiff before the lower court seeks in the instant action have been duly set out in the lead judgment. The Respondent never alleged himself to be the original owner of the property in dispute and also never claimed to be in physical possession of it before he instituted the instant suit.
It is settled law that the Respondent haven brought the action primarily nominated the issues for decision in the case. See LONGE v. FIRST BANK OF NIGERIA PLC (2012) All FWLR (pt. 525) 258. In the first of the reliefs, in the instant case, the Respondent claims a declaration that he is the person entitled to the ownership and possession of the property in dispute. It is his case on the pleading that he bought the said property and paid N35,000.00 therefor. The Respondent in my considered view thereby nominated the issues/facts of the purchase and payment by cash for the property by himself and therefore imposed on himself the burden of proving these with cogent and uncontradicted evidence that remains credible and reliable. See ISEOGBEKUN v. ADELAKUN (2013) 2 NWLR (pt. 1337) 140. This is against the backdrop of the settled position of the law that he who asserts must prove.
In my considered view, it has been more than sufficiently demonstrated in the lead judgment that the Respondent upon the evidence before the lower court did not discharge the burden of proof on him as to the payment of money in any sum to the Appellant and a afortiori how he came to acquire the ownership of the property in dispute. In other words the Respondent failed to prove the acquisition of the property in dispute by the particular mode of acquisition he pleaded. This being the case/situation, it becomes unarguable that the lower court never had foundation upon which it granted the Respondent any of the reliefs he sought (whether main alternative).
It is against the backdrop of all that has been said above, that I had earlier expressed my complete agreement with the reasoning, exposition of the law, and conclusions in the lucid lead Judgment.
Accordingly, I too, resolve the three Issues for determination of the instant appeal in favour of the Appellant and find the appeal to have merit.
Appeal is therefore allowed by me. The judgment of the lower court dated 16/5/2001 is hereby set aside and in its stead, judgment is entered dismissing the Respondent’s (i.e. Plaintiff before the lower court) case, in its entirety. I abide by the costs awarded in the lead judgment.
Appearances
A. B. Odiete, Esq.For Appellant
AND
For Respondent
