HARUNA YUSUF HARUNA v. BANK OF AGRICULTURE LIMITED & ORS
(2016)LCN/8580(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2016
CA/K/74/99
RATIO
APPEAL: EFFECT OF A DECISION NOT APPEALED AGAINST
The law is that where there is no appeal against a decision of the Court, that decision is inviolate. See Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 7459 Page 577 at 594 Para A-B per Rhodes-Vivour JSC; Oleksandr v Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 371 Para A-B per Kekere-Ekun JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EVIDENCE: AFFIDAVIT; HOW SHOULD CONFLICTS IN AFFIDAVITS BE RESOLVED
It is true that where there are conflicts in the affidavits of the parties, the Court seised of the matter should resolve the conflict by calling oral evidence, except, for instance, where there is sufficient documentary evidence to resolve the conflict. See Ugwu v PDP (2015) 7 NWLR Part 1459 Page 478 at 499 Para H per Aka’ahs JSC; Annamco v First Marina Trust Ltd (2000) 1 NWLR Part 640 Page 309 at 316 Para E per Niki Tobi JCA (as he then was).
There is, however, a difference between contradictions in an affidavit filed by a party and contradictions in the affidavits of the parties. In the former, the Court is not bound to call oral evidence, as the contradictions are self-created, while in the latter the Court is so bound. See the case of Momah v Vab Petroleum Inc (2000) 4 NWLR Part 654 Page 534 at Page 547, Para A-C per Uwais CJN. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
COURT: WHAT IS THE LANGUAGE OF THE COURT
It is trite law that the language of the Courts is English. It is the duty of Counsel who desires the Court to make use of a document that is not in the language of the Court, to ensure its translation, I hold.
Pronouncing on this principle, the Supreme Court, per Iguh JSC held, in Ojengbede v Esan (2001) 18 NWLR Part 746 Page 771 at 790 para A-B, as follows:
“There can be no doubt that the official language of superior Courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.”
The Court of Appeal, Abuja Judicial Division, enunciating the same principle, held, in the case of Achimi Ali v Amodu Omale Audu (2005) LPELR-11330(CA), per I. T. Muhammad JCA (as he then was)
“It is common knowledge that proceedings are conducted in the High Courts in this country in the English Language. English Language is the officially recognized language of such Courts. Any document sought to be relied upon by a party which otherwise is not written in the English Language MUST be translated by the party seeking to rely upon it in evidence into the English Language. It is entirely the responsibility of the party that intends to rely on such documents, in this case the Appellant, to translate that document from the Arabic Language to the language of the Court, i.e. English Language. The trial Court cannot call for its translation or interpretation suo motu as to do that will amount to making a case for the appellant which is not the duty of the Court. See: ONIBUDU & ORS V. AKIBU & ORS (1982) All NLR 207 at 219. The learned trial Judge was quite right in my view in not ascribing any probative value to Exhibit P2 as he could understand nothing from it. It therefore adds nothing to the evidence of the appellant. Underlining Mine
He quoted the passage above in Ojengbede v Esan supra and the conclusion, where Iguh JSC reading the lead judgment held that:
“I am therefore in total agreement with the Court below that as Exhibit J was not written in the language of the Court and there being no translation of it into English in the course of the proceedings, the learned trial Judge was in definite error to have taken any Notice of it in his judgment.”
See also Umaru Bako & Ors v. Yau Abubakar (2014) LPELR- 23975(CA) where the dilemma was stated thus, in the lead judgment of Orji-Abadua JCA:
“The worrisome aspect of the decision of the lower Court was its reliance on Exhibit A that was partly written in Hausa language with the translated English version of it not being tendered before it.
The description and boundaries of the lands… were presumably contained in the portion of Exhibit A written in Hausa language. The lower Court was not given the benefit of knowing the lands described therein except, may be, the learned trial Judge, presumably, being a Northerner, used his knowledge of Hausa language to interpret the said portion. This procedure has been condemned in its entirety and had indeed led to voiding of many decisions since vernacular language is not the language of the Court. The official language of superior Courts of record in Nigeria is English…”
Learned Counsel to the Appellant has however cited in particular the case of Damina v State (1995) 8 NWLR Part 415 Page 513 at 539-540 Para A-D where the Supreme Court, per Uwais JSC (as he then was), in his contributory judgment, held as follows:
“Now it is a matter of common knowledge and indeed of judicial notice that the lingua franca of Nigeria and the official language of the Superior Courts in this country is English. Therefore, when a witness testifies in any proceedings before the Superior Courts in any Nigerian Language or vernacular such testimony is simultaneously translated by a Court interpreter into English for the benefit of the Court and the parties. Similarly, if document written in any language other than English are to be put in evidence, they are caused by the party in the proceedings, who needs them to prove his case, to be translated into English. Where the party omits to have the document so translated, the Superior Court has a duty to cause the document to be translated by the official interpreter of the Court, if any, or by a person that is fluent and competent to do so. Documents properly tendered for admission in evidence cannot be rejected by the Courts merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted, the Courts are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced. But they cannot do so unless they have the documents translated into English, and the translated copies put in evidence in the normal way. Thus, the interpreter or translator must be called to give evidence, in the course of which he will be expected to state the qualification which makes him a competent interpreter or translator, and he will be examined, cross-examined and re-examined by the parties in order to ensure that he has done a good job of the translation.”
The same Court, in the case of Paul Onyia v The State (2008) 7-12 SC 120 at 135 lines 20-30 per Tobi JSC, in the lead Judgment, citing this case, however cautioned against the importation of principles into cases where the facts differ.
His Lordship held:
“Where is the evidence in this appeal that the learned trial Judge did what the Judge did in Damina? Where is the exhibit that the learned trial Judge in this appeal re-translated”? In other words, where is the prototype of Exhibit 2A in this appeal? It is elementary law that cases are decided on their facts and ratio-decidendi, is based on the facts of the case before the Court. A ratio cannot be determined outside the facts of the case. As the facts of Damina are quite different from those of this case, I cannot use Damina to allow this appeal. Underlining Mine
In the case of Damina v State Supra, the complaint on appeal was that the trial Judge did not rely on the English translation of the confessional statement, holding the same to be unclear. He contrarily relied upon his own interpretation of the same. It was this act that was castigated by the Supreme Court. In the case of Onyia v State, however, the Appellant, who was represented by Counsel in the High Court and in the Court of Appeal and who did not complain of the non-interpretation of the evidence of any of the witnesses from Igbo to English yet raising the issue for the first time in the Supreme Court with its leave, was refused by the same Court.
In Madu v State (1997) 1 NWLR Part 482 Page 386 Adio JSC at Page 401-402 Para H-C, reading the lead judgment, quoted from their decision in State v Gwonto (1983)1 NSCC 104 where they observed as follows:
“The Respondents were throughout the proceedings in the High Court represented by counsel, Mr. Ahinche. There is nothing in the records of the High Court (and no further evidence was led on the issue in the Court of Appeal) to show that the Respondents or Counsel on their behalf requested for an interpreter and that that request was rejected. Nor is there any indication that there was any objection at lack of interpretation or any proper interpretation in the High Court. I cannot see how the Respondents can escape from the force and authority of Eguabor’s case. If as is the case here they were represented by counsel and made no request for an interpreter at the earliest opportunity which was in the High Court, their right to an interpreter would as rightly contended by Mr. Ajayi be lost for ever. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
LAND LAW: ATTITUDE OF COURT TO OBTAINING THE CONSENT OF GOVERNOR BEFORE EXECUTING AN INSTRUMENT
The Courts have held that there is nothing in the Land Use Act preventing the execution of an instrument before the consent of the Governor is obtained. It simply means that the agreement entered into is inchoate until the Governor’s consent is sought and obtained. See Adetuyi v Agbojo (1997) 1 NWLR Part 484 Page 705 at 717 Para E-F per Ige JCA; Ilemobola Co Ltd v Governor Kaduna State (2000) 7 NWLR Part 666 Page 633 at 651 Para A-B per Salami JCA. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
HARUNA YUSUF HARUNA Appellant(s)
AND
1. BANK OF AGRICULTURE LIMITED
2. ALHAJI ADAMU IDRIS
3. AGRIC & MARKTING CO. LTD.
4.DEPUTY SHERIFF HIGH COURT OF JUSTICE, KADUNA Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering The Leading Judgment): This Appeal arose out of interpleader proceedings and is against the Ruling of the High Court of Kaduna State delivered by Hon. Justice J.S. Abiriyi (as he then was) on the 25th day of February, 1998.
? The facts of this case are that the 1st Respondent, as Plaintiff, obtained judgment in the Undefended List against the 2nd and 3rd Respondents, as Defendants, in respect of a loan given by it to the said Respondents. The Judgment, from the Record of Appeal, was delivered by Ibiyeye J (as he then was) on 18/9/95. In satisfaction of the judgment debt the 1st Respondent attached and auctioned the movable properties of the 2nd and 3rd Respondents. Realising less than the judgment debt, it was granted leave to attach the immoveable property of the said Respondents, consequent upon which the property at No. AK 14 Wushishi Road, Kaduna was attached and an auction notice published. A sale was conducted and the property sold to a third party. The third party (Appellant herein) filed an interpleader application claiming ownership of the property. The 1st Respondent opposed the
application. Neither the?2nd or 3rd Respondents appeared in Court nor filed any processes in opposition. The Court, Coram Abiriyi J (as he then was), hearing the application, dismissed the same.
Dissatisfied with this decision, the Claimant, Appellant herein, filed a Notice of Appeal dated 3rd March, 1998. In the interim, the Appellant died and was substituted by his son. The Notice of Appeal was subsequently amended and further amended, the extant Notice of Appeal being Further Amended Notice of Appeal filed on 4/3/15 and deemed properly filed on 4/6/15 pursuant to the leave of the Court. In reaction to the appeal filed by the Appellant, the 1st Respondent was, on 8/2/11, granted an extension of time to file a Notice of Cross Appeal, which Notice, dated 6th July, 2007, was deemed properly filed on the said date (8/2/11).
The parties amended their Briefs of Argument severally. This, combined with innumerable applications and processes filed, has resulted in the protraction of this appeal, the appeal finally coming up for hearing on 23/3/16.
?At the hearing of the appeal, Ugo Udoji Esq argued the 1st Respondent’s Preliminary
Objection dated 30/10/15 and filed on 2/11/15. Arguments in respect of the Preliminary Objection are contained at Pages 9-11 of the ?Amended 1st Respondent’s Brief of Argument? filed on 2/11/15, but deemed properly filed on 3/12/15. Counsel urged the Court to allow the objection and to strike out Ground 4 of the Appellant’s Notice of Appeal.
Ms A.A. Fali, learned Counsel for the Appellant, adopted the Appellant’s Reply Brief dated 16/12/15 and filed on 17/12/15 as containing their response to the Preliminary Objection, urging the Court to dismiss the same.
With respect to the main appeal, Ms A.A. Fali adopted the Further Amended Appellant?s Brief of Arguments dated 11/11/15 and filed on 2/12/15. Mr. Udoji, in turn, adopted the Amended 1st Respondent’s Brief of Argument dated 30/10/15 and filed on 2/11/15 but deemed properly filed by leave of Court on 3/11/15.
On the Cross Appeal, the Appellant’s Counsel adopted Amended 1st Respondent’s/ Cross Appellant’s Brief dated 30/10/15 and filed on 2/11/15/ but deemed filed on 3/12/15. Ms Fali, in response, adopted the Amended Cross Respondent’s Brief of Arguments dated
20/1/14 and filed on 29/1/l4.
?I shall first deal with the Notice of Preliminary Objection filed by the 1st Respondent. The Notice stated:
?TAKE NOTICE that the 1st Respondent/Objector shall at the hearing of the appeal be heard raising and arguing preliminary objection to the competence of Ground 4 of the Grounds of Appeal argued in the Appellant?s Brief in this Appeal No. CA/KD/74/99.
GROUNDS
Take Notice that the grounds upon which the 1st Respondent/Objector shall be heard objecting to the said Ground 4 are that the matter was decided on 19th September, 1995, 20 years ago before same was included by way of an amendment to the Notice of Appeal filed on the 3rd March, 1998 without 1st seeking and obtaining leave to appeal over the said judgment.”
2. The Appellant not being a party to the matter originally but came in as a third party interpleader after the conclusion of the undefended lost matter did not apply for leave to appeal over the judgment as an interested party.”
?The Preliminary objection, as indicated by the 1st Respondent’s counsel, is argued at Pages 9-11 of the Amended 1st Respondent’s Brief
of Argument, under Issue No. 2 formulated by him, to wit:
Whether a party can by amendment introduce a ground of appeal over which there was neither a Notice of Appeal nor leave for extension of time to file a Notice of Appeal.
I shall adopt this issue, the Appellant having raised none in his Reply Brief.
It is apparent from this sole issue raised and the arguments proffered in respect thereof, that the 1st Respondent is abandoning the 2nd leg of the Preliminary Objection, which I shall accordingly discountenance.
?In his arguments, Counsel points out that the Notice of Appeal is in respect of the Ruling delivered on 25th February, 1988. He agreed that the most recent amendment by the Appellant is its Further Amended Notice of Appeal dated 6/3/2015. Ground 4, introduced through the amendments, does not emanate from the Ruling appealed against, he contended. There is also no Notice of Appeal filed over Ground 4, neither was any leave granted for extension of time within which to appeal over the same, thus making the ground incompetent and liable to be struck out. Leave to amend, he submitted is not synonymous with leave to appeal.
Citing the cases of Ehinlanwo v Oke (2008) 16 NWLR Part 1113 Page 357; Ene v Askpo (2010) 10 NWLR Part 1203, he submitted that an appeal filed without leave is incompetent. He argued, in addition, that it is a Notice of Appeal, properly filed that confers jurisdiction on the Court
of Appeal. Parties cannot by acquiescence confer jurisdiction on a Court. He cited Dahiru v Wedtet (2005) AFWLR Part 278 Page 1116.
In response, the Appellant’s Counsel, in her Reply Brief, seeking the dismissal of the Preliminary Objection, submitted that it was brought in bad faith. This, she said, is because at the hearing of the Appellant’s application dated 3rd of March, 2015 for leave to add and argue an additional ground of appeal, the Counsel to the Respondents informed the Court that they had no objections, which application was thence granted by the Court on the 4th day of June, 2015. She argued that assuming, without conceding, that Ground 4 is incompetent, this Court should grant same, being a Court of justice and equity, by Order 4 Rules 1-5 and Order 4 Rule 3 of the Court of Appeal Rules 2011.
Ground 4 of the Further Amended Notice of Appeal
provides as follows:
?The Learned Trial Judge erred in law and lacked jurisdiction to hear and determine the Suit on the undefended list when there was no application requesting the Court to place the Suit on the undefended list and no order placing suit in the undefended list was sought and granted.”
PARTICULARS
a. Order 22 Rule (1) of the Kaduna State High Court (Civil Procedures) Rules 1987 requires the Plaintiff to make an application to the Court to place a Suit in the undefended list when it has satisfied the Court with good grounds that there is no defence to the Suit.
b. The instant suit was filed and issued on the undefended list without any application to the Court to do so.
c. The condition precedent for issuing and placing the writ on the undefended list was not complied with.
d. The Suit was therefore not properly constituted before the trial Court when it was heard and determined.”
?The proceeding at which the application bringing in the Further Amended Notice of Appeal took place, is on the 4th day of June, 2015. On that date, the Appellant’s Counsel moved and was granted motion dated
3rd March, 2015 seeking the following:
1. AN ORDER of this Honourable Court for leave to further amend the Applicant’s Amended Notice of Appeal dated 20th day of January, 2014 by adding the additional Ground of Appeal contained in Exhibit B as ground four (4).
2. AN ORDER of this Honourable Court amending the Appellant’s Amended Notice of Appeal dated 20th day of January, 2014 by adding the additional Ground of Appeal contained in Exhibit B as ground for (4).
3. AN ORDER of this Honourable Court deeming the Appellant’s proposed further Amended Notice of Appeal marked as Exhibit C as properly filed and served, clean copies having been filed separately.
4. AN ORDER of this Honourable Court for leave to further amend the Appellant’s Amended Brief of Argument dated 20th day of January, 2014 to argue the new ground of Appeal.
?The question, from the foregoing, is whether the grant of leave to amend the Appellant’s Notice of Appeal to include Ground 4 Supra, is synonymous with the grant of an extension of time to appeal against the earlier judgment, the judgment having been delivered in 1995, twenty years before the said
motion.
It is at this juncture necessary to set out the Appellant’s Notice of Appeal to ascertain the decision appealed against.
The Appellant’s Further Amended Notice of Appeal states as follows:
“TAKE NOTICE that the Appellant being dissatisfied with the decision of the Kaduna State High Court No. 7, Kaduna contained in the ruling of Honourable Justice T.S. Abiriyi delivered on 25tt day of February, 1998 do hereby appeal to the Court of Appeal upon the grounds set out in Paragraph 3 and will at the hearing of the appeal seek the relief(s) set out in Paragraph 4.
The Relief sought is as follows:
“RELIEF BEING SOUGHT FROM THE COURT OF APPEAL
An order setting aside the ruling of the Kaduna State High Court No. 7 and in its place make an order awarding title to the property in dispute to the Appellant.”
Underlining Mine
?It is clear from the foregoing, that the appeal of the Appellant, by its Further Amended Notice of Appeal, is not against the judgment delivered by Ibiyeye J (as he then was) on 18/9/95, but against the ruling of the lower Court delivered by Abiriyi J(as he then was) on
25/2/98 in respect of the Interpleader Summons filed by the Appellant.
The law is that where there is no appeal against a decision of the Court, that decision is inviolate. See Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 7459 Page 577 at 594 Para A-B per Rhodes-Vivour JSC; Oleksandr v Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 371 Para A-B per Kekere-Ekun JSC.
Ground 4, which complains against the judgment delivered by the lower Court in the Undefended List, is thus not competent, I hold, there being no appeal against the said decision. The fact that the Respondent’s Counsel did not object to the amendment sought, cannot cure this defect, I hold. The Preliminary Objection thus succeeds and Ground 4 of the Further Amended Notice of Appeal is accordingly struck out.
With regard to the main appeal, the issues for determination raised by the Appellant in his Further Amended Appellant’s Brief are as follow:
1. Whether the Appellant herein has, through his affidavit evidence in the circumstances of the case proved this claim as required by law.
2. Whether the trial Court was right it
dismissed the Appellant’s interpleader application having regard to the Court’s failure to call or order for oral evidence to resolve the glaring conflicts in the pieces of affidavit evidence before it.
3. Whether the trial Court was right when it dismissed the Appellant’s interpleader application on the ground that the Exhibit SA3 was written in Hausa Language.
4. Whether the Trial Court was right when it determined the Suit under the undefended list without a proper application made before the Court to place the Suit under the undefended list.
The 1st Respondent, in its Amended 1st Respondent’s Brief of Arguments, formulated two issues for determination as follow:
1. Whether the Appellant from available evidence proved his title to property No. AK 74 Wushishi Road to entitle the release of same to him.
2. Whether a party can by amendment introduce a ground of appeal over which there was neither a Notice of Appeal nor leave for extension of time to file a Notice of Appeal.
The Court, having struck out Ground 4 of the Further Amended Notice of Appeal, has rendered issues 4 and 2 raised by the
Appellant and 1st Respondent respectively, as irrelevant. The remaining issues can be condensed and argued under a single issue, namely:
Whether the trial Judge was right to have dismissed the Interpleader Summons filed by the Claimant
The Appellant’s Counsel, conceding that by Sections 135-137 and 145 of the Evidence Act, the burden of proof is on the Claimant in Interpleader proceedings, submitted that this burden has been discharged, as the sale of the property to the Claimant had been proved. Citing the cases of Olatunde v. O.A.U. (1998) 5 NWLR Part 549 Page 178 at 188 Para A-B and Ofem v. Ejukwa (1994) 2 NWLR Part 326 Page 303 at 317 Para D-H, she gave the 5 ways of proof of ownership of land. She thus found it difficult to understand why the trial Judge came to the conclusion that it did, which conclusion, she argued, was wrong.
She further argued that where there is conflict in the affidavits of the parties, the same should be resolved by calling oral evidence. The trial Court was therefore wrong to have failed to take oral evidence in resolution of the conflicts in the affidavits.
?She contended that the trial Judge was
wrong in dismissing the application on the ground that it was not written in the language of the Court and had not been translated. The duty of the Court is to emphasise substance over procedure and order the document to be translated into the language of the Court. She cited Order 46(1) High Court (Civil Procedure) Rules 1987; Amako v State (1995) 6 NWLR Part 399 Page 11 at 26 Para C-F; Damina v. State (1995) 8 NWLR Part 415 Page 513 at 530-550; Onalo v Aguda (1997) 10 NWLR Part 526 Page 540 at 557 Para B-D. At worst, failure to translate the Sale Agreement (Exhibit SA3) should be attributed to the mistake of Counsel for which the litigant should not be penalized. In addition, Exhibit SA3 is a valid contract of sale and is a legal instrument which can only be defeated by a purchaser for value without notice of the prior equity.
?The 1st Respondent’s Counsel, agreeing that the onus is on the Claimant to prove his entitlement to property taken in execution and not for the Judgment Creditor to disprove his title, submitted that there was a discrepancy in the title document relied upon by the Appellant in proof of the sale to him of the property
by the Judgment Creditors. It was only after he pointed this out in his Counter Affidavit filed, that the Appellant made a volte face and gave a different document of title as proof of the sale to him, and this, with no explanation given for the anomaly. There was thus no discharge by the Appellant of the onus placed on him by the law. Counsel submitted further that there was no conflict in the affidavits, as to require the calling of oral evidence and even if there was, the documents exhibited to the affidavits are sufficient to resolve the conflicts.
?With respect to the contention of the Appellant that it was incumbent on the lower Court to have directed the translation of the said document, learned Counsel submitted that in our adversarial system of adjudication, a Judge cannot descend into the arena. A party should sink or swim with the case presented by it. The fact that in a criminal case, in compliance with the constitutional presumption of innocence and in granting an accused person the facility for his defence, the Judge goes the extra mile to get the document translated, does not give the judge liberty to suo motu translate or “patch up” a
document sought to be relied upon by a claimant. He cited Iwanbe v Madam Ayawo Swande (2002) FWLR Part 85 Page 355 at 364-365 Para G-C; Lawanson v Afani Continental Co Nig Ltd (2002) FWLR Part 109 Page 1736 at 1756-1757 Para F-A per Salami JCA.
He distinguished Damina v State cited by the Appellant.
To resolve this issue, I proceed to consider the processes filed by the parties in respect of this application.
The Appellant, in its affidavit in support of its Interpleader Summons, deposed that the Deputy Sheriffs and Bailiffs of the Court attached the plot in dispute at Plot AK14, Wushishi Road, Sabon Gari Kaduna, formerly AK14 Sabon Gari, in execution of the Court’s judgment. He became aware of the auction sometime in late September. The house attached, however, belongs to him, having purchased the same from the 1st Judgment Debtor sometime in May 1995 for the sum of N700,000 (Seven Hundred Thousand Naira). The Judgment Debtor thus surrendered to him the Certificate of Occupancy in respect of the said house. The Appellant attached to this affidavit the following documents:
Notice of Attachment (Exhibit SA1);
Notice of Public
Auction (Exhibit SA2);
Handwritten “Agreement Paper” written in Hausa and dated 19/5/95 (Exhibit SA3)
Certificate of Occupancy No. KDA/A/007641 (Exhibit SA 4) in the name of Alhaji Aliyu Yaro dated the 22nd of October, 1988. In the schedule enclosed is the description of the property as being at No. AK 14 Sabon Gari Kaduna registered as No. 7641 in Page 459 in Volume iv in the office of the Secretary Kaduna Local Government.
?In the Counter Affidavit of the 1st Respondent, it was insisted that the property attached belonged to the Judgment Debtor immediately before the attachment. It was alleged that the contents of the affidavit in support of the Interpleader were false and that the Appellant, a close friend of the 1st Judgment Debtor, is merely being used by the Judgment Debtors to deny it the fruits of its Judgment. It further alleged that Exhibit SA4, certificate of occupancy No. KDA/A/0007641, attached to the Appellant’s Affidavit, being the 1st Respondent’s title document given to him, was manufactured for this case. This, it was deposed, is because Alhaji Yaro, the original owner’s certificate number, is 001721 and which latter
certificate was cancelled consequent upon the transfer of title to the 1st Judgment Debtor (Alhaji Adamu Idris).
Exhibited to the Counter Affidavit is a Transfer Form of Certificate of Occupancy No 001727 conveying approval for transfer of Right of Occupancy over Plot No AK14 Sabon Gari to Alhaji Adamu Idris (the 1st Judgment Debtor). The letter, dated 21/2/94, instructed that the Certificate of occupancy (C of O) be surrendered to enable the preparation of a new C of O, reflecting the transfer. Also attached to the Counter Affidavit is the amended Notice of Auction indicating a new date of auction.
In response, the Appellant deposed to a Further and Better Affidavit agreeing that the original C of O No is 001721 issued to Yusufu Adamu and exhibiting the C of O. He also agreed with the authenticity of the letter of transfer exhibited by the 1st Respondent from Yusufu Adamu to Ali Yaro. He, however, insisted that the land was sold to him and that following the sale, the documents of the property were delivered to him.
?In rebuttal, the 1st Respondent, in a “Further and Better Counter Affidavit” denied that any document of sale between the
1st judgment debtor and the Appellant or any document of encumbrance, was in the file from the date the application for leave to attach the document was filed and the date of auction on 10/10/97. He insisted that the Appellant is a mere “protege” of the 1st Judgment debtor.
The lower Court, in its ruling on the Interpleader Summons and the submissions of Counsel to the parties, held as follows:
?I have looked at the affidavit evidence before me and I agree with Mr. Udoji that among the documents attached by both parties, title to the land has been traced to the 1st Judgment Debtor. There is no document which conclusively fixes title on the Claimant. Exhibit SA4 attached to the affidavit in support of the application is a disaster; as it had been found to be fake. Exhibit SA3 which is supposed to be the only document conferring title on the claimant, cannot be read by this Court, not being in the language of the Court and having not been translated.
Secondly, as Mr. Udoji rightly pointed out, it could have been written anytime and back dated. It is not shown to have been secured anywhere for example by sending it to the
Local Government to be filed as there was a filed (sic) for the property in the Local Government when the purported transfer was done. See Paragraph 3 of the Further and Better Counter-Affidavit which has not been controverted.
From the foregoing, it is difficult to say that the Claimant has established title to the property claimed by him. Therefore the application is hereby dismissed in its entirety.”
To recapitulate, the issue for determination is:
Whether the trial Judge was right to have dismissed the Interpleader Summons filed by the Claimant.
The sequence of title of the ownership of the property in dispute, prior to the purported sale to the Appellant, is not disputed. From the processes exhibited by the parties, it shows that the original owner of the property is one Yusufu Adamu, whose C of O No 001721, dated 17/3/66 (Exhibit SA5), was exhibited to the Further and Better Affidavit of the Appellant.
Ownership was transferred to Alhaji Aliyu Yaro as shown in the “Application for Transfer of Right of Occupancy” dated 20/9/88 (Exhibit S46) exhibited to the Appellant’s Further and Better Affidavit.
As?exhibited by both parties, a further transfer was effected between Alhaji Aliyu Yaro and Alhaji Adamu Idris, the 1st Judgment Debtor, as shown in Transfer Form dated 27/2/94, which they have both exhibited. All these documents, I note, bear the C of O Number 001721. It is therefore curious as to how the Appellant, in his motion in support of the application, got the initial C of O referred to by him in his affidavit, which C of O bears the number No KDA/A/007641 and in the name of Alhaji Aliyu Yaro. Yet in a later affidavit, following the challenge to this document, he produced a different C of O with Number 001721 in the name of this same person. This C of O, I note, is different entirely from the later documents of title admitted by him as covering the land in dispute.
It was following the challenge to this document by the 1st Respondent, who exhibited the proper document of transfer showing the authentic number, that the Appellant, in a subsequent affidavit, presented other processes, this time showing the proper documents of title bearing the correct C of O number.
?I agree with the 1st Respondent that this was suspect, he having stated that
this was the document of title given to him by the 1st Judgment Debtor following his purchase of the property. There was no attempt by the Appellant, in his subsequent affidavit to explain this anomaly or the reason for this obvious mendacity.
The trial Judge, I accordingly hold, was perfectly correct to have deduced from these facts that “Exhibit SA 4 attached to the affidavit in support of the application is a disaster; as it had been found to be fake.”
Learned Counsel to the Appellant has argued that the trial Judge, in view of this conflict in the affidavits should have called oral evidence.
It is true that where there are conflicts in the affidavits of the parties, the Court seised of the matter should resolve the conflict by calling oral evidence, except, for instance, where there is sufficient documentary evidence to resolve the conflict. See Ugwu v PDP (2015) 7 NWLR Part 1459 Page 478 at 499 Para H per Aka’ahs JSC; Annamco v First Marina Trust Ltd (2000) 1 NWLR Part 640 Page 309 at 316 Para E per Niki Tobi JCA (as he then was).
There is, however, a difference between contradictions in an affidavit filed by a party
and contradictions in the affidavits of the parties. In the former, the Court is not bound to call oral evidence, as the contradictions are self-created, while in the latter the Court is so bound. See the case of Momah v Vab Petroleum Inc (2000) 4 NWLR Part 654 Page 534 at Page 547, Para A-C per Uwais CJN.
In the instant case, the conflict is between the affidavits of the Appellant, who initially placed reliance on an apparently non-existent C of O, only to turn round in a subsequent affidavit to agree, by implication, with the 1st Respondent on the falsity of the initial document, by putting forward a different one. There was thus no requirement, I hold, for the lower Court to have called oral evidence, as the contradiction was self-created by the Appellant.
The Appellant’s Counsel has again argued that it was wrong for the trial Judge, without calling for the interpretation of the “Sale Agreement” relied upon by the Appellant, to simply disregard the same.
The lower Court, commenting on this document, held as follows:
“Exhibit SA3 which is supposed to be the only document conferring title on the Claimant, cannot be read
by this Court, not being in the language of the Court and having not been translated.”
It is trite law that the language of the Courts is English. It is the duty of Counsel who desires the Court to make use of a document that is not in the language of the Court, to ensure its translation, I hold.
Pronouncing on this principle, the Supreme Court, per Iguh JSC held, in Ojengbede v Esan (2001) 18 NWLR Part 746 Page 771 at 790 para A-B, as follows:
“There can be no doubt that the official language of superior Courts of record in Nigeria is English and that if documents written in any language other than English are to be tendered and properly used in evidence, they must be duly translated into English either by a competent witnesses called by the party to the proceedings who needs them to prove his case or by the official interpreter of the Court.”
The Court of Appeal, Abuja Judicial Division, enunciating the same principle, held, in the case of Achimi Ali v Amodu Omale Audu (2005) LPELR-11330(CA), per
I. T. Muhammad JCA (as he then was)
“It is common knowledge that proceedings are conducted in the High Courts in this
country in the English Language. English Language is the officially recognized language of such Courts. Any document sought to be relied upon by a party which otherwise is not written in the English Language MUST be translated by the party seeking to rely upon it in evidence into the English Language. It is entirely the responsibility of the party that intends to rely on such documents, in this case the Appellant, to translate that document from the Arabic Language to the language of the Court, i.e. English Language. The trial Court cannot call for its translation or interpretation suo motu as to do that will amount to making a case for the appellant which is not the duty of the Court. See: ONIBUDU & ORS V. AKIBU & ORS (1982) All NLR 207 at 219. The learned trial Judge was quite right in my view in not ascribing any probative value to Exhibit P2 as he could understand nothing from it. It therefore adds nothing to the evidence of the appellant. Underlining Mine
He quoted the passage above in Ojengbede v Esan supra and the conclusion, where Iguh JSC reading the lead judgment held that:
“I am therefore in total agreement with the
Court below that as Exhibit J was not written in the language of the Court and there being no translation of it into English in the course of the proceedings, the learned trial Judge was in definite error to have taken any Notice of it in his judgment.”
See also Umaru Bako & Ors v. Yau Abubakar (2014) LPELR- 23975(CA) where the dilemma was stated thus, in the lead judgment of Orji-Abadua JCA:
“The worrisome aspect of the decision of the lower Court was its reliance on Exhibit A that was partly written in Hausa language with the translated English version of it not being tendered before it.
The description and boundaries of the lands… were presumably contained in the portion of Exhibit A written in Hausa language. The lower Court was not given the benefit of knowing the lands described therein except, may be, the learned trial Judge, presumably, being a Northerner, used his knowledge of Hausa language to interpret the said portion. This procedure has been condemned in its entirety and had indeed led to voiding of many decisions since vernacular language is not the language of the Court. The official
language of superior Courts of record in Nigeria is English…”
Learned Counsel to the Appellant has however cited in particular the case of Damina v State (1995) 8 NWLR Part 415 Page 513 at 539-540 Para A-D where the Supreme Court, per Uwais JSC (as he then was), in his contributory judgment, held as follows:
“Now it is a matter of common knowledge and indeed of judicial notice that the lingua franca of Nigeria and the official language of the Superior Courts in this country is English. Therefore, when a witness testifies in any proceedings before the Superior Courts in any Nigerian Language or vernacular such testimony is simultaneously translated by a Court interpreter into English for the benefit of the Court and the parties. Similarly, if document written in any language other than English are to be put in evidence, they are caused by the party in the proceedings, who needs them to prove his case, to be translated into English. Where the party omits to have the document so translated, the Superior Court has a duty to cause the document to be translated by the official interpreter of the Court, if any, or by a person that is fluent
and competent to do so. Documents properly tendered for admission in evidence cannot be rejected by the Courts merely on the ground that the documents have been written in a language or vernacular other than English. If they are so admitted, the Courts are expected and indeed obliged to look at them when they come to assess or evaluate the evidence adduced. But they cannot do so unless they have the documents translated into English, and the translated copies put in evidence in the normal way. Thus, the interpreter or translator must be called to give evidence, in the course of which he will be expected to state the qualification which makes him a competent interpreter or translator, and he will be examined, cross-examined and re-examined by the parties in order to ensure that he has done a good job of the translation.”
The same Court, in the case of Paul Onyia v The State (2008) 7-12 SC 120 at 135 lines 20-30 per Tobi JSC, in the lead Judgment, citing this case, however cautioned against the importation of principles into cases where the facts differ.
His Lordship held:
“Where is the evidence in this appeal that the
learned trial Judge did what the Judge did in Damina? Where is the exhibit that the learned trial Judge in this appeal ?re-translated”? In other words, where is the prototype of Exhibit 2A in this appeal? It is elementary law that cases are decided on their facts and ratio-decidendi, is based on the facts of the case before the Court. A ratio cannot be determined outside the facts of the case. As the facts of Damina are quite different from those of this case, I cannot use Damina to allow this appeal. Underlining Mine
In the case of Damina v State Supra, the complaint on appeal was that the trial Judge did not rely on the English translation of the confessional statement, holding the same to be unclear. He contrarily relied upon his own interpretation of the same. It was this act that was castigated by the Supreme Court. In the case of Onyia v State, however, the Appellant, who was represented by Counsel in the High Court and in the Court of Appeal and who did not complain of the non-interpretation of the evidence of any of the witnesses from Igbo to English yet raising the issue for the first time in the Supreme Court with its leave, was
refused by the same Court.
In Madu v State (1997) 1 NWLR Part 482 Page 386 Adio JSC at Page 401-402 Para H-C, reading the lead judgment, quoted from their decision in State v Gwonto (1983)1 NSCC 104 where they observed as follows:
“The Respondents were throughout the proceedings in the High Court represented by counsel, Mr. Ahinche. There is nothing in the records of the High Court (and no further evidence was led on the issue in the Court of Appeal) to show that the Respondents or Counsel on their behalf requested for an interpreter and that that request was rejected. Nor is there any indication that there was any objection at lack of interpretation or any proper interpretation in the High Court. I cannot see how the Respondents can escape from the force and authority of Eguabor’s case. If as is the case here they were represented by counsel and made no request for an interpreter at the earliest opportunity which was in the High Court, their right to an interpreter would as rightly contended by Mr. Ajayi be lost for ever.?
?Applying these principles to the instant case, it was for the Appellant or his Counsel at the lower
Court to have requested for an interpreter to interpret the Sales Agreement. Having not done so, he cannot be heard to complain on appeal that the trial judge did not call for the interpretation of the agreement. The lower Court, I accordingly hold, was right to have discountenanced this agreement.
It is instructive to note that the Court did not base its decision solely on the non-interpretation of this Agreement. He also referred to the falsity of the initial document of title relied upon by the Appellant and wondered why this document, if authentic, was not filed at the Local Government, where the purported transfer was done and to fix the public with notice thereof. The trial Judge was right, I accordingly hold, to have dismissed the interpleader. I thus resolve the 1st issue for determination in the substantive appeal, against the Appellant and in favour of the 1st Respondent.
With regard to the Cross Appeal, the issues for determination formulated by the 1st Respondent, are the following:
1. Whether the trial Court was right when after agreeing that the interpleader summons was brought after 2l days of sale of the immovable
property went ahead to hold as he did that Sections 47 and 48 of the Sheriff and Civil Process Act do not apply as, according to him, this was a claim and not setting aside for irregularity.
2. Whether the learned trial Judge rightly held that Section 22 and 6 of the Land Use Act did not apply in determining whether there was transfer of title in AK14 Wushishi Road Kaduna from 2nd Respondent to the Appellant.
The issues formulated by the Cross Respondent in the Cross Appeal are as follow:
1. Whether the learned trial Judge was right in holding that the Interpleader Summons filed by the Cross Respondent is a claim and not an application to set aside the sale based on irregularities
2. Whether the learned trial Judge was right in holding that Section 22 and 6 of the Land Use Act were not applicable to this case.
These issues, being similar, I shall adopt those raised by the Cross Appellant.
?Arguing the 1st issue, learned Counsel to Cross Appellant, defining the term “Interpleader”, submitted that the sale of the property became absolute 21 days after the auction sale, however the Interpleader Summons was not
filed until 43 days after the sale. The lower Court, having acknowledged this fact, erred in making a distinction between setting aside for irregularity and a claim for the property.
The Cross Respondent’s Counsel, in support of the trial Judge’s decision, submitted that from the prayers in the Interpleader Summons, it is clear that the Cross Respondent is laying claim over the property in dispute and also seeking for the setting aside of the Writ of Attachment. In consequence, Section 47 of the Sheriffs and Civil Process Act is not applicable. Sections 47 and 48 of the Act thus relate to the setting aside of a sale on material irregularity in the sale and does not relate to a third party laying valid claim on the said property.
The trial Judge, responding to the contentions of the Cross Appellant, at Pages 78-79 of the Record held as follows:
“Mr. Udoji computed the time within which the application was brought and found that the application was not brought within 21 days. I agree. He submitted that this is contrary to Sections 47 and 48 of the Sheriffs and Civil Process Law. I disagree. Those sections of the Sheriff and Civil Process
Law deal with applications that seek to set aside irregular sales. This instant application is a claim. It goes beyond a mere irregularity. So the sections relied upon are not of assistance to the Judgment Creditor”
Sections 47 and 48 of the Sheriffs and Civil Process Act, Laws of Kaduna State 1991, provide as follow:
Section 47
At any time within 21 days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.
Section 48
If no such application as is mentioned in Section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the Court shall make an order confirming the sale; and in like manner, if the objection be allowed the Court shall make an order setting aside the sale for irregularity.
I have had occasion to pronounce
on a similar question, in the case of Lawal Usman Ibrahim v Deputy Sheriff (2014) LPELR-23472(CA). One of the questions that arose in that case was whether the processes to set aside the sale should have been an application filed within 21 days of the sale, pursuant to Sections 47 and 48 of the Sheriffs and Civil Process Act and not by filing of a writ of summons, and that having not done so, the Appellant was barred from invalidating the sale. It was held by me in the said case, reading the lead judgment that:
“…. as contended by the Appellant, Sections 47 and 48 of the Sheriffs and Civil Process Act, in my view, contemplates an application to set aside a sale by the primary parties to the dispute. It cannot, I hold be extended to apply to a third party, as the Appellant, who is a stranger to the proceedings in which the property was attached and who has no knowledge of the alleged sale.
Sections 47 and 48 of this Act, I therefore hold cannot be a bar to the institution of the suit filed by the Appellant before the lower Court.”
I receive support for this from the decision of the Supreme Court in the case of Nakyauta v Maikima (1977)
6 SC 57 at 72-74 lines 17-22 where the great jurist Sir Udo Udoma J5C held:
“What then did the second defendant buy, bearing in mind that the property purportedly sold was not the property of the judgment/debtor, that is to say, the property in the contemplation of the Court when the writ of attachment was issued?”
The answer must be that the second defendant (bought) nothing as the judgment/debtor had no right, title or interest in No. 30A Airport Road Kano. That must be so, because the auction sale had missed its target and its destination; and therefore even though in order in appearance, the purported auction sale so recklessly conducted by the first defendant might be anything but sufficiently effective to pass the property in No. 30A Airport Road Kano, to the second defendant in law.
?We are of opinions that the learned trial judge misdirected himself in law when he held that what had occurred in connection with the auction sale of the property was a mere irregularity within the meaning of the term in Section 47 of the Sheriffs and Civil Process Law, because, according to him, up to the point of sale, there was no irregularity. The
provisions of Section 47 are as follows:
“At any time within 21 days from the date of the sale of any immovable property, application may be made to the Court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.”
It should be observed that the irregularity provided for in Section 47 as set out above is the irregularity in the conduct of the sale and not such fundamental irregularity extraneous to the conduct of the sale which might go to the very root of the sale itself. The irregularity in the intendment of the section is very much restricted, and, if we might hazard a guess, may take the form of collusion; or of fixing up the selling price secretly; or it may be that the property was not properly advertised before the auction sale. There is, of course, no such complaint in the present proceedings.
Learned counsel for the second defendant would appear in our view to have placed far too much
reliance on the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Law CAP S6 Laws of the Federation of Nigeria 2004 “Underlining Mine
Any decision, contrary to that of the Supreme Court, in the case above cited, must obviously bow, by the doctrine of judicial precedence.
From the above statement by Sir Udo Udoma JSC, the irregularity contemplated by Section 47 of the Sheriffs and Civil Process Act Supra, is “on irregularity in the conduct of the sale and not such fundamental irregularity extraneous to the conduct of the sale which might go to the very root of the sale itself?.
The decision of the lower Court that the instant application is a claim and not an irregularity and that Sections 47 and 48 are inapplicable, cannot be faulted, I hold. I thus resolve the lst issue for determination against the Cross Appellant and in favour of the Cross Respondent.
The 2nd issue for determination is:
Whether the learned trial judge rightly held that Section 22 and 6 of the Land Use Act did not apply in determining whether there was transfer of title in AK14 Wushishi Road Kaduna from 2nd Respondent to the
Appellant.
The Cross Appellant contends that by the Cross Respondent claiming in his affidavit before the Court that the house belongs to him as his personal property, having bought the same from the judgment debtor and that the agreement is Exhibit SA3, amounts to a claim that there has been a transfer of the title to him. He contended that by Section 22 of the Land Use Act there could not be a valid sale and transfer without the consent of the Governor. The lower Court was thus wrong to have held as follows:
“Mr. Udoji’s submission that there was no compliance i.e. with Section 22 and Section 5 of the Land Use Act does not arise as the said sections are not applicable in the instant case. The case of Universal Vulcanizing Nig Ltd (Supra) is irrelevant to the instant application”.
Counsel to the Cross Respondent submitted that Section 22 Supra relates to a Statutory Right of Occupancy granted by the Governor, while the instant Certificate of Occupancy is that of Kaduna North Local Government.
The Courts have held that there is nothing in the Land Use Act preventing the execution of an instrument before the consent of the
Governor is obtained. It simply means that the agreement entered into is inchoate until the Governor’s consent is sought and obtained. See Adetuyi v Agbojo (1997) 1 NWLR Part 484 Page 705 at 717 Para E-F per Ige JCA; Ilemobola Co Ltd v Governor Kaduna State (2000) 7 NWLR Part 666 Page 633 at 651 Para A-B per Salami JCA.
I thus have no reason to disagree with the stance of the lower Court.
Indeed, the Cross Appeal, in view of my decision in the main appeal, is a mere academic exercise. I shall thus dissipate no further energy on it.
In conclusion, having resolved the sole issue for determination in the main appeal against the Appellant, this appeal fails and is hereby dismissed. The decision of the lower Court delivered by Abiriyi J (as hethen was) on 25/2/98 is accordingly affirmed. The Cross Appeal also fails and is dismissed. Each party shall bear its own costs.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Oludotun Adebola Adefope Okojie, JCA. I entirely agree with the reasoning and decision arrived at in the lead judgment. My learned brother has
extensively and exhaustively dealt with the issues raised in the appeal, and I have nothing useful to contribute to the erudite judgment other than to adopt same as mine, and dismiss the appeal for being unmeritorious. The judgment of the lower Court delivered on the 25th of February, 1998 by Abiriyi J, (as he then was) is hereby affirmed. I also agree that the cross-appeal be dismissed for lacking in merit. I abide by the order made as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I adopt the reasoning as mine and abide the conclusions reached in the lead judgment.
Appearances
A.A. FaliFor Appellant
AND
Ugo Udoji for the 1st Respondent/Cross Appellant.
No appearance for 2nd – 4th Respondents.For Respondent
