ABIMBOLA v. NAIYEJU (2020)

ABIMBOLA v. NAIYEJU

(2020)LCN/14397(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/L/1120/2014

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

MRS. ADEOLA ABIMBOLA APPELANT(S)

And

JOHN BAYO NAIYEJU RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT CAN ONLY RELY ON A DOCUMENT TENDERED AS AN EXHIBIT BEFORE IT

By way of prefatory remarks, an exhibit denotes a document, record or other tangible objects formally introduced as evidence in Court, see Lucky v. State (2016) 13 NWLR (Pt. 1528) 128. A Court of law can only rely on a document tendered as an exhibit before it and vice versa, see Nigerian Ports Plc. v. B.P.P.T.E. Ltd (2012) 18 NWLR (Pt. 1333) 454; The People of Lagos State v. Umaru (2014) 7 NWLR (Pt. 1407) 584; Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374. In the wide realm of adjectival law, a rejected document cannot be relied on by the Court, see Nigerian Ports Plc. v. B.P. PTE Ltd. (2012) 18 NWLR (Pt. 1333) 454; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, Wassah v. Kara (supra); State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108. PER OGBUINYA, J.C.A.

WHETHER OR NOT THE COURT HAS THE LICENCE TO READ A DOCUMENT HOLISTICALLY SO AS TO REACH AND GARNER HARMONIOUS RESULTS OF ITS CONTENTS

It admits of no argument, that the judgment, wherein the lower Court is accused of using Exhibit A, falls within the wide four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, Section 258 of the Evidence Act, 2011. Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, seeUBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. PER OGBUINYA, J.C.A.

THE DUTY OF THE TRIAL COURT IN ASCERTAINING THE WEIGHT OF EVIDENCE

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, seeMogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. PER OGBUINYA, J.C.A.

THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES CALLED BY PARTIES IN ANY PROCEEDINGS
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande(2009) 5 NWLR (Pt. 1163) 11;Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo(2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). PER OGBUINYA, J.C.A.

WHETHER OR NOT A REGISTRABLE INSTRUMENT THAT HAS NOT BEEN REGISTERED IS ADMISSIBLE TO PROVE INTEREST

A Registrable instrument which has not been registered is admissible to prove such equitable interest and prove payment of purchase of money or rent.
See also Oni v. Arimoro (1973) 1 All NLR (Pt. 1) 189; Adesanya v. Aderonmu (2000) 6 SC (Pt. 11) 18/(2000) 9 NWLR (Pt. 672) 370/(2000) 2 SCNQR (Pt. 2) 1180; Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321)/1994) 1 SCNJ 106; Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt. 401) 255; Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554; Zaccala v. Edosa (2018) 6 NWLR (Pt. 1616) 528; Agboola v. UBA (2011) 11 NWLR (Pt. 1258) 375; Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256; PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Lagos State, holden in Lagos (hereinafter addressed as the “the lower Court”), coram judice: O.A. Taiwo, J, in Suit No ID/558/2009, delivered on 9th May, 2014. Before the lower Court, the appellant and the respondent were the defendant and the claimant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The appellant was the owner of the property situate at No. 65 Abolaji Street, Mafoluku-Oshodi Area, Lagos State which was registered as No 60 at page 60 in volume 1987L at the Land’s Registry, Ikeja, Lagos State. The Lagos Building Investment Company Limited (LBIC), in 1996, granted loan facility to the appellant. The appellant’s property was used as collateral for the facility. A legal mortgage was created over the property, in favour of the LBIC, which was registered as No 50 at page 50 in Volume 2014 at the Lands Registry, Ikeja, Lagos State. The appellant, despite repeated demands, failed to liquidate/repay, in full, the loan facility.

The respondent claimed that the LBIC sold the property to him, on 10th October, 2008, and executed assignment in his favour. Sequel to the sale/alienation, the respondent beseeched the lower Court, via a writ of summons filed on 19th March, 2009, and tabled against the appellant the following reliefs:
1. A Declaration that the Claimant is the owner of all that piece of Land and Building situate at No 65, ABOLAJI STREET MAFOLUKU – OSHODI AREA OF LAGOS CONTAINING AN AREA OF LAND APPROXIMATELY
2. An order of this Honourable Court compelling the Defendant, his Servants, Privies or any other person claiming through her to vacate and give possession to the Claimant, the land and building situate at No. 65 Abolaji Street, Mafoluku – Oshodi Area, Lagos State and as No 50 at Page 50 in Volume 2014 in the Lands’ Registry of Lagos State.
3. An order of this Honourable Court compelling the Defendant to pay to the Defendant rent amounting to N100,000 (One Hundred Thousand Naira only) per month commencing from March 1, 2009 till vacation and possession is given to the Claimant by the Defendant.

In reaction, the appellant joined issued with the appellant and

denied liability. The appellant asserted that she had repaid the loan facility and denied the legal mortgage. She alleged that the respondent and officials of LBIC instigated her arrest and detention, by the State Criminal Investigation Department (SCID), Panti, Lagos State, on a false criminal allegations of threat to life, fraud and obtaining by false pretence. As a result, she counter-claimed and solicited, against the respondent, the following reliefs:
a. An order of this Honourable Court directing the Claimant to pay the Defendant the sum of N10,000,000 as damages and compensation for instigating the Nigeria Police at State Command Investigation Department Panti, Yaba to arrest and detain the Defendant under false petition when the Defendant did not commit any offence and the subject matter is purely civil.
b. An order of this Honourable Court restraining, the Claimant, his agent, privies, and predecessors by whatever name called from disturbing the Defendant peaceable occupation and possession of the Subject of the suit situate at 65, Abolaji Street, Mafoluku Oshodi, Lagos State and cover (sic) by Certificate of Occupancy registered No. 60

page 60 in volume 1989L.
c) An order setting aside the deed of Legal Mortgage made between the defendant and Lagos Building Investment Company Limited dated 15th February, 2008 and registered as No 50 page 50 Volume 2014 Mortgage at the Land Registry, Lagos.

Following the rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded four witnesses: CW1-CWIV. In disproof of the case, the appellant called a witness: DW1. Tone of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 9th May, 2014, found at pages 321-345 of the record, the lower Court granted, partly, the respondent’s claim and dismissed the appellant’s counter –claim.

The appellant was dissatisfied with the decision. Hence, on 21st May, 2014, the appellant lodged a 6-ground notice of appeal, copied at pages 346-351 of the record, wherein she prayed this Court. “To allow the appeal and set aside the decision of the trial Court and

dismissed (sic) the claim in its entirety”. Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 15th June, 2020.

During its hearing, learned counsel for the appellant, A. B. Adioye, Esq., adopted the appellant’s brief of argument, filed on 8th June, 2017 but deemed filed on 22nd May, 2019, as representing his arguments against the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Olatunji Oyewole, Esq., adopted the respondent’s brief of argument, filed on 4th December, 2017 but deemed filed on 22nd May, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellant’s brief of argument, learned counsel distilled two issues for determination to wit:
i) Whether having discountenance (sic) EXHIBIT A the trial Judge can still use and rely on the contents of the same EXHIBIT A to give judgment in favour of the Respondent.
ii) Whether arising from the pleadings and evidence the parties on

record (apart from discountenanced EXHIBIT A) there is any other legal mortgage upon which a right of sale could be invoked by Lagos Building Investment Company (LBIC) to sell Appellant’s property to the Respondent.

In the respondent’s brief of argument, learned counsel crafted six issues for determination, videlicet:
1. Whether the learned trial judge in the judgment of 9th May, 2014 actually rely (sic) on Exhibit A to infer the existence of a legal mortgage agreement between LBIC and the Defendant/Appellant?
2. Whether the trial judge was right to rely on Exhibit G, H, J and L which are all admissible and properly executed documents, to arrive at the fact that there was a legal mortgage agreement between LBIC Limited and the Defendant/Appellant?
3. Whether the learned trial judge was right to hold that since there was a legal mortgage agreement between LBIC and the Defendant/Appellant, the only condition required for the sale was the service of a notice on the Defendant/Appellant?
4. Whether the learned trial judge was right to hold that this requirement was fulfilled by LBIC?
5. Whether the reference by the

learned trial judge to the registration number of the property as No. 50 at Page 50 in Volume 2014 at the Land Registry Ikeja Lagos imply a reliance by the learned judge on the content of Exhibit A in granting judgment to the Claimant/Respondent and thefore a miscarriage of justice? er
6. Whether the learned trial judge after expunging Exhibit A made a case for the Claimant/Respondent outside his pleading and evidence of his witness by relying on Exhibit F-6, G, H, J and L to uphold the sale of the property to the Claimant/Respondent?”

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s verbose issues can be conveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant; the undisputed owner of the appeal.

Arguments on the issues.
Issue one.
Learned counsel for the appellant submitted that the lower Court was wrong to rely on Exhibit A after it had discountenanced it. He relied on Bello v. Governor of Kogi State (1997) 9 NWLR (Pt. 521) 496. He described the act as a miscarriage of

justice. He reasoned that a Court would not rely on inadmissible evidence. He cited Fasade v. Babalola(2003) FWLR (Pt. 161) 1707. He stated all other exhibits were tied to Exhibit A. He noted that apart from Exhibit A, the LBIC had no legal authority to sell the property.

On behalf of the respondent, learned counsel contended that the lower Court, after removing Exhibits A and R, relied on Exhibits B-J and testimonies of CW1-CWIV and DW1 to show that the appellant failed to pay for the loan and agreed to the sale of the property to cover the indebtedness. He referred to Allied Bank of Nig. Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374. He explained that the lower Court’s reference to registration of the property did not mean reliance on Exhibit A to cause miscarriage of justice. He added that the fact that Exhibit A was declared inadmissible did not imply that mortgage deed it was intended to prove was void and reference could not be made to it at the Lands Registry.

Issue two.
Learned appellant’s counsel submitted that after Exhibit A was expunged, the LBIC had equitable mortgage which only judgment of Court could give it power to

sell the property. He relied on Adjei v. Dabanka 1930 WACA. He persisted that none of the other documents qualified as legal mortgage. He posited that the respondent’s main relief was declaratory and it must be proved and not by admission for the appellant. He cited Anyanru v. Mandilas Ltd (2007) 4 SC (Pt. III) 58; Kwajaffa v. Bank of North Ltd (2004) 13 NWLR (Pt. 889)146. He reasoned that Exhibits M and N, deed of assignment and receipt, were registrable instruments that were not registered and the lower Court would not rely on it. He cited Section 15 of the Land Instrument Registration Law; Akinduro v. Alaya (2007) (sic) (Pt. 11) 120. He took the view that the respondent, in order to succeed, must prove that the LBIC had the right under legal mortgage to sell the property. He insisted that the respondent failed to prove his case and that the decision caused a miscarriage of justice to the appellant.

For the respondent, learned counsel repeated that they were other documents duly executed by the appellant. He referred to Allied Bank of Nig. Ltd. v. Akubueze (supra). He observed that Exhibits F-6 and L served as the required notices issued by LBIC.

He cited AbdulRahman v. Oduneye (2009) 17 NWLR (Pt. 1170) 220; Majekodunmi v. CCB Ltd. (1997) 1 NWLR (Pt. 524) 198; Haruna v. SBN (1995) 2 NWLR (Pt. 337) 326. He said that the appellant admitted the legal mortgage of 15th February, 2008. He noted that the appellant failed to prove her allegation of repayment and forgery of mortgage. He citedGarba v. Zaria (2005) 17 NWLR (sic) – no part 28. He analysed the Exhibits E-6, G-L and maintained that they gave the LBIC the authority to sell the property without recourse to the Court. He cited Pan African International Supply Co. Ltd. v. Jkpeez Impex Ltd. (2010) 3 NWLR (Pt. 1182) 441. He concluded that the other evidence, apart from Exhibit A, proved legal mortgage of the property.

Resolution of the issues
It is germane to place on record, upfront, that a flood of documentary evidence were furnished before the lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi(2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in

evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the two nagging issues in this appeal.

Although, the learned appellant’s counsel amalgamated the arguments on the two issues, I will, in the interest of orderliness and

precision, deconsolidate their considerations. To this end, I will attend to them seriatim. I kick off with the treatment of issue one. The marrow of the issue, which is canalised within a narrow compass, is plain. It queries the judicial utilitarian value of Exhibit A after its discountenance by the lower Court.

Court is accused of using Exhibit A, falls within the wide four walls of a document in that its contents are “expressed or described upon any substance by means of letters, figures or marks”, Section 258 of the Evidence Act, 2011. Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482; ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt, 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209; Julius Berger Nig. PLC. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any embellishments, seeUBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385,

UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these canons of interpretation of document in order not to offend the law.

Now, the gravamen of the appellant’s chief grievance, indeed her trump card on the lean issue, is the propriety of the lower Court’s usage and reliance on Exhibit A after it declared it inadmissible. In due loyalty to the desire of the, I have consulted the record; the spinal cord of every appeal. My first port of call is the residence of the judgment which is in the heat of extermination. It is a 25 – page judgment that monopolises pages 321 – 345 of the record. I have given a global and clinical examination to it in due allegiance to the injunction of the law. Admirably, it does not harbour any equivocation/woolliness in its connotation. The lower Court, precisely at pages 342, lines 14 and 15 of the record, on the footing of the appellant’s protestation to its admissibility, declared Exhibit A inadmissible and discountenanced it. Incontestably, the selfsame judgment is dotted with frequent references/allusions to

Exhibit A. However, Exhibit A, the deed of legal mortgage of 15th February, 2008, was not the main anchor of the judgment. In other words, the judgment was not predicated on the Exhibit A which the lower Court had expelled from the case. At page 343, lines 2 – 5, of the record, the lower Court proclaimed: “Thus asides from Exhibit (sic) A & R which are inadmissible in law, the claimant has other documents…” It is decipherable from that proclamation, that the lower Court was not oblivious of the caustic effects of the castration and expunction of Exhibit A on the respondent’s case. It amply, demonstrates that the lower Court ignored Exhibit A as inadmissible document and evaluated other admissible documents that cried for its attention. The foregoing dissection, with due respect, renders the learned appellant’s scintillating submission on the pointlame. It does not fly.

There is the another limb of the slim issue. It is the appellant’s accusation that the other documentary evidence are dependent on Exhibit A. I have situated the Exhibit A and those other documentary evidence. The raison d’ etre for the

juxtaposition is simple. It is to ascertain whether or not those other documentary evidence are dependent on Exhibit A. In this wise, I have given a merciless scrutiny to those galaxy of documentary evidence. My indepth study reveals that those documentary evidence, each of which is either anterior or posterior to Exhibit A, did not trace their lexical paternity to it. Put simply, they were not parented by Exhibit A. Nor do they share the same birthday. In point of fact, both in nomenclature and syntax, they are not conterminous with Exhibit A. Each exhibits independence in its purport and significance. In the face of this disparity and distinction, the learned appellant’s counsel wrongly idolized Exhibit A and crowned it the progenitor of the other documentary evidence. It is a fallacious appellation. In effect, those other documentary evidence will not sink/drown with the excised Exhibit A in the ocean of irrelevancy.

This brief legal anatomy, with due reverence, punctures and exposes the poverty of the learned appellant’s seemingly salivating argument on the issue. The lower Court did not, in the least, defile the law as it never approbated

the Exhibit A after its reprobation in its judgment. It will smell of judicial sacrilege to tinker with a judicial act that is not hostile to the law. In sum, I will not hesitate to resolve the issue one against the appellant and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The meat of the issue is plain. It chastises the lower Court’s evaluation of evidence before it. Put bluntly, the appellants accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence. A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining

appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, seeMogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the

issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande(2009) 5 NWLR (Pt. 1163) 11;Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo(2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Onyekwuluje v. Animashaun (supra). I have placed the decision of the lower Court with the positions of law x-rayed above with a view to identifying their infractions or compliance.

One of the foremost grudges, nursed by the appellant, orbits around the admissibility of Exhibits M and N.

The appellant has greeted their admission with a stiff opposition on the ground of non-registration. The objection is erected on the provision of Section 15 of the Land Instruments Registration Law, Cap. L 58, Volume 4, Laws of Lagos State, 2003 (the Law). Being the cynosure of the objection, it is imperative to pluck it out, whence it is domiciled in the statute book, devoid of its provisos, thus:
15. Inadmissibility in evidence
No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered.
The provision of Section 2, the definition clause of the Law, defines instrument. I extract it out, ipsissima verba, as follows:
Instrument means a document affecting land in the Lagos State, whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in the Lagos State, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.
These provisions, which are in

pari materia with similar provisions in the Land Instrument Laws of other States, are comprehension-friendly. Their counterparts have fallen for interpretation before the Courts. They have been construed to the effect that any instrument which purports to transfer or extinguish any right, title or interest in land will not be pleaded or admissible in evidence save it is duly registered in consonance with the sacrosanct provision of the Land Instrument Law, see Ogumbambi v. Abowaba (1951) 13 WACA 22; Ojugbele v. Olasoji (1982) 4 SC 58; Akintola v. Solano (1986) 2 NWLR (Pt. 24) 58; Ogbimi v. Niger Construction Ltd. (2006) 9 NWLR (Pt. 986) 474; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312; Alafia v. Gbode Ventures (Nig.) Ltd. (2016) 7 NWLR (Pt. 1510) 116; Atanda v. Comm., L. & H., Kwara State (supra); Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 244; Atanda v. Comm., L. &H., Kwara State (2018) 1 NWLR (Pt. 1599) 32; Orlu v. Onyeka (2018) 3 NWLR (Pt. 1607) 467.
I have given a microscopic examination to the two documents, Exhibits M and N, which are in the furnace of expulsion from the

appeal. While Exhibit M colonises pages 57 – 60 of the record, Exhibit N occupies page 61 thereof. Exhibit M is the deed of assignment made between the LBIC and the respondent over the disputed property. Exhibit N is purchase receipt from LBIC, the assignor, to Mr. Adepoju Akinyemi – the agent of the respondent assignee. Unarguably, Exhibit M affects land. Its mission is to extinguish the interest of the LBIC in the disputed property and transfer same to the respondent. In view of these inherent features, it comes squarely within the four walls of instrument as envisaged by the provision of Section 2 of the Law. The Exhibit N, per contra, falls out of the province of an instrument.
The hallowed principle of law, id est, that an unregistered registrable instrument affecting land is inadmissible, is inelastic in its application. In other words, it is a qualified cardinal rule of law which is better appreciated in its legally-accepted exception. The law with its rider was graphically captured by Bello, JSC, as he then was in Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783 at 790 in these scintillating words:
It is trite law that a

purchaser of land or a lessee in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A Registrable instrument which has not been registered is admissible to prove such equitable interest and prove payment of purchase of money or rent.
See also Oni v. Arimoro (1973) 1 All NLR (Pt. 1) 189; Adesanya v. Aderonmu (2000) 6 SC (Pt. 11) 18/(2000) 9 NWLR (Pt. 672) 370/(2000) 2 SCNQR (Pt. 2) 1180; Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321)/1994) 1 SCNJ 106; Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511; Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt. 401) 255; Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554; Zaccala v. Edosa (2018) 6 NWLR (Pt. 1616) 528; Agboola v. UBA (2011) 11 NWLR (Pt. 1258) 375; Achilihu v. Anyatonwu (2013) 12 NWLR (Pt. 1368) 256; Benjamin v. Kalio (2018) 15 NWLR (Pt. 1641) 38.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Thus, the document, Exhibit M, though unregistered registrable instrument, was admissible in of proof payment of purchase money. It must be underscored, that it cannot be pleaded nor admitted to prove legal title in land. The lower Court’s admission of Exhibit M is salvaged by the single exception which the law has taken cognizance of in the ex cathedra authorities chronicled above. Put differently, the lower Court did not, in the least, insult the adjectival law when it admitted the Exhibit M. I also take shelter under the sanctuary of the qualification to coronate it with the toga of admissibility. In consequence, I decline the appellant’s enticing invitation to ostracise it from the appeal. Contrariwise, I welcome them as usable instruments in the determination of the appeal with respect to payment of money only.

My noble Lords, I am mindful of the bald fact that Exhibits A and R suffered expunction, in the judicial hands of the lower Court, on account of inadmissibility. I must observe, pronto, that the appellant has only scored a barren victory on that finding. The reasons are: Firstly, even though Exhibit A, which is the

appellant’s worry, was rejected by the lower Court, the oral evidence in proof of the facts which it was intended to prove are admissible in law. In other words, those pieces of oral evidence, proffered by CWI – CWIV, still stand. This evidential principle of law has received the imprimatur of the apex Court, see MCC Ltd v. Azubuike (1990) 3 NWLR (Pt. 136) 74; Olanrewaju v. The Gov., Oyo State (1992) 9 NWLR (Pt. 265) 335; Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617 at 651 – 652. Secondly, Exhibit A was jettisoned from the case, which parented the appeal, on grounds of wrongful admission. In the sight of the law, a wrongful admission of evidence shall not be a ground to reverse a decision if an appellate Court finds that the decision would have been the same without the removed evidence, see Section 251 of the Evidence Act, 2011, former Section 227 of the Defunct Evidence Act, 2004; Ogunsina v. Matanmi (2001) 9 NWLR (Pt. 718) 286; Omomeji v. Kolawole (2008) 2 NWLR (Pt. 1106) 180; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Adeyemi v. State (2014) 13 NWLR (Pt. 1433) 132; Tyonex (Nig.) Ltd. v. Pfizer Ltd. (2020) 1 NWLR (Pt. 1704) 125.

Indubitably, there are an avalanche of evidence on record that buttress and solidify the lower Court’s decision.

At this juncture, I will reap from the co-extensive jurisdiction of this Court with the lower Court in the appraisal of documentary evidence as catalogued above. In this wise, I have given an intimate reading to the deluge of those other documentary evidence presented before the lower Court by the appellant. Exhibits D and E, wrapped between pages 36 and 37 of the record respectively, clearly, demonstrate that the appellant applied and was granted a loan facility of ₦2M by the LBIC – the respondent’s predecessor-in-title. They are concrete evidence of contract of loan which denotes a sum of money lent with interest, see Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343. Exhibits F2, F4, F5 and F6 were the LBIC’s notices of demand to the appellant to liquidate the loan sum with the accrued interest thereon. Exhibit G, a Memorandum of Understanding (MOU) between the appellant and the LBIC, is located at page 48 of the record. It is for the amortisation of the outstanding loan debt in ₦5M instalments.

A MOU/letter of intent, usually in writing, displays what the parties intend will eventually form the basis of contract. It acts in futuro as it speaks to future events of a more formal contractual relationship and the steps of each party to bring their intention to reality. A MOU does not restrain parties thereto from entering/engaging in negotiations with a third party on the same res, see BPS Contr. & Engr. Co. Ltd. v. FCDA (2017) 10 NWLR (Pt. 1572) 1. Then, Exhibits J and H, pasted at pages 50 and 51 of the record respectively, are the appellant’s undiluted mandate to the LBIC to dispose the disputed property in circumstances of her default to discharge the loan debt. Exhibits F2, F4, F5, F6, G, J and H are classic evidence of appellant’s indebtedness to the LBIC. Indebtedness signifies a state of owing money, or something owed, or debt to another person, see Barbedos and Ventures Ltd. v. FBN Plc (2016) 4 NWLR (Pt. 1609) 241.
Remarkably, these documentary evidence are permanent, incorruptible, inelastic and indelible. They are, in the mind of the law, more reliable than viva voce evidence which ooze out from the vocal cord of man and

susceptive to evidential tutorage. In sum, these documents establish that the appellant was mired in debt to the LBIC which ignited her blank authority to it to dispose the disputed property in order to recoup its money. In effect, they deflate the appellant’s defence of lack of indebtedness and authority to LBIC to alienate the disputed property.
I have revisited the lower Court’s judgment, sought to be impugned, which is copied at pages 321 – 345 of the record: the bedrock of every appeal. I have subjected it to another careful and painstaking study. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR

(Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc.(2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the respondent proved his case. Proof, in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227.
For the sake of completeness, the appellant stigmatised the lower Court’s decision as a classic exemplification of a miscarriage of justice. Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not,

in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi V. W.S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar V. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke V. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467.
The appellant, in her infinite wisdom, starved this Court of the incidents of miscarriage of justice that afflicted her case. The appellant’s counter-claim was aborted on ground of improper procedure. There is no appeal against that solemn finding. I stemmed from that judicial impotence, that the appellant did not garner any substantial right from her counter-claim that was disabled from birth. The lower Court

weaved the decision on admissible parol and documentary evidence available before it. There was no importation of alien evidence in the judgment. In effect, the reasonable probability to earn a favourable result in appellant’s favour was, with due reverence, an echo of mirage. The decision is not enmeshed in the intractable vortex of miscarriage of justice. On this note, the charge of miscarriage of justice levelled against decision is not sustainable as to constitute a coup de grace on the respondent’s case.
In the light of this juridical survey, done in due fidelity to the law, the lower Court did not transgress the law as to make its finding/decision guilty of the allegation of perfunctory evaluation of evidence labelled against it by the appellant. The lower Court’s finding is immaculate. In the result, all the strictures, which the appellant rained against it, peter into insignificance. On this score, I dishonour the learned appellant’s counsel’s inviting solicitation to sacrifice the finding, on proof of the respondent’s claim, on the undeserved altar of improper evidential evaluation. In the end, I resolve the

issue two against the appellant and in favour of the respondent.

On the whole, having resolved the two issues against the appellant, the destiny of the appeal is obvious. It is devoid of any ray of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they incurred in the prosecution and defence of the ill-fated appeal.

TIJJANI ABUBAKAR, J.C.A.: I read before today the comprehensive leading Judgment prepared and rendered in this appeal by my learned brother OGBUINYA JCA. I am in full agreement with the reasoning and conclusion, they are all in accord with my own, my learned brother has fully and sufficiently covered the field, I therefore do not have anything extra to add, I adopt the entire Judgment as my own, I also abide by all consequential orders including the order on costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: This is an appeal against the judgment of the High Court of Lagos State in SUIT NO. ID/558/2009: JOHN BAYO NAIYEJU vs. MRS. ADEOLA ABIMBOLA delivered on the 9th day of May, 2014.

I have adequately comprehended the Records of Appeal and the briefs of argument

filed and exchanged by the parties. My learned brother, Obande Festus Ogbuinya, J.C.A. also at afforded me the opportunity of reading in draft, the leading judgment which has just been delivered. His Lordship has admirably and in a perspicacious and punctilious manner dealt with all the issues raised in the appeal. The sapience manifested in the leading judgment leads to my inexorable and ineluctable concurrence that the appeal is unmeritorious in the extreme. I am in lull agreement with the reasons given and conclusions reached in the leading judgment for dismissing the appeal. Howbeit, I will still add a few words to underscore my concurrence with the leading judgment.

The Appellant, inter alia, complained about the evaluation of evidence and ascription of probative value thereto by the lower Court. The leading judgment has accentuated with effulgence, that the evaluation of evidence and ascription of probative value thereto by the lower Court was done in total allegiance to the dictates and precepts of the law in that regard, and that the same cannot be faulted. It remains abecedarian law that for the determination of an appeal on issues of facts, it

is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98.
In the words of Idighe, JSC (of blessed memory) in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47:
“It is now settled that if there has been a proper appraisal of evidence a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.”
Furthermore, the law is that the conclusions of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR

(PT. 2) 66 and EHOLOR vs. OSAYANDE(1992) LPELR (8053) 1 at 43. The concomitance of the decision that the lower Court properly evaluated the evidence and ascribed probative value thereto is that the Appellant has failed to displace the presumption that the conclusions of the lower Court on the facts are correct in order to upset the judgment on the facts. There is no basis for an appellate Court to interfere. This naturally sounds the death knell for the appeal. It is Nunc Dimittis!

Having thus avouched my concurrence with the reasoning and conclusion in the leading judgment, I must perforce, join in dismissing the appeal. I abide by the consequential orders made in the leading judgment.

Appearances:

A.B. Adioye, Esq., with him, P.O. Adaramola, Esq. For Appellant(s)

Oyewole Olatunji, Esq. For Respondent(s)