AHMED OMOGBOLAHAN SIRAJUDEEN v. HON. ELDER DAVID BAMIDELE
(2018)LCN/12016(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of July, 2018
CA/IL/89/15
RATIO
COURT AND PROCEDURE: WHEN DEALING WITH INTERLOCUTORY MATTERS
“I agree with the submissions of the learned counsel to the appellant in his brief of argument that the trial Court ought not to have considered the reliefs claimed by the appellant and making a pronouncement on the reliefs at the stage the documents were sought to be tendered. Issues to be determined are not to be considered at the interlocutory stage. See, ORJI VS. ZARIA INDUSTRIES LTD & ANOR (1992) LPELR 2768 (SC) where his lordship Wali, JSC at PP. 23 – 24, PARAS. F ? A held thus: ”. It is the duty of the trial Court, when dealing with interlocutory matters, to avoid making statement giving the impression that it has made up its mind on the substantive issue on trial before it. Justice must not only be done, but must be seen to have been done.” See, also FSB INT. BANK LTD VS. IMANO (NIG) LTD & ANOR (2000) LPELR 1219 (SC) PP. 28 – 29, PARAS. E – A, ABOSELDEHYDE LABORATORIES PLC VS. UNION MERCHANT BANK LTD & ANOR (2013) LPELR 20180 (SC) PP. 52 – 53, PARAS. E A and AMUZIE VS. STATE (2016) LPELR 41531 (CA) PP. 12 – 13, PARAS. P – A.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
AHMED OMOGBOLAHAN SIRAJUDEEN Appellant(s)
AND
HON. ELDER DAVID BAMIDELE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the Ruling of the Kwara State High Court, presided over by the Chief Judge of Kwara State, S.D. Kawu, CJ. The ruling was as a result of an objection raised by the Respondent against the admissibility of some documents tendered by the appellant, the objection was upheld.
The background facts are that the Appellant as claimant by his amended writ of summons at the lower Court sought the following reliefs:
(1) A DECLARATION that the plaintiff/claimant is the bonafide and legal owner and person entitled to Customary Right of Occupancy on the plots or parcel of land situate and lying at Baba Ode Layout in Ilorin West Local Government covered by Customary Right of Occupancies Nos. 1377 and 1378 dated 9th May, 2007 each measuring 924.16m2 respectively in respect of Block 1 Plot 1 and Block 1 Plot 2 of the site plan at Baba-Ode layout by virtue of the Deed of Assignment/Agreement dated 21st day of May, 2009 evidencing sales and receipt of payment of the said plots of land sold to the plaintiff/claimant by Alhaja Falilat Usman and Alhaja Bolajoko Abdullahi who are the original holders of the plots.
(2) The sum of N1,000,000.00 (One Million Naira) only as Damages for trespass.
(3) The sum of N212,000.00 only as special damages for demolition of plaintiff fence and security house by the defendant.
PARTICULARS OF SPECIAL DAMAGES
i. 100 units of 9inch block demolished by the defendant at N100 per block = N100,000.00.
ii. Iron gate N90,000.00 20 roofing sheets at N600 per sheet N12,000.00.
iii. 10 sheet of asbestos at N510 per sheet = N10,000.00.
TOTAL: = N212,000.00
(4) Perpetual injunction restraining the defendant or his agent or representative from trespassing or further trespassing on the land of the plaintiff/claimant covered by Customary Right of Occupancies Nos. 1377 and 1378 respectively.
(5) Cost of this suit.
The respondent on his part filed a statement of defence in which he incorporated a counter claim. In course of the trial, the appellant as the claimant sought to tender some documents in evidence which included two (2) Deeds of Assignment and a Certificate of Customary Right of Occupancy. Upon the objection on the part of the Respondent (as the defendant) the two documents, the Deeds of Assignment and the Certificate of Customary Right of Occupancy were rejected and marked as such on the grounds that they are unregistered registrable instruments. The contention of the Appellant is that these three documents were pleaded as receipts, the fact of which was said to have been appreciated by the lower Court in its Ruling. The trial Court rejected the documents on the basis that the claimant’s claim is not whether he paid for the disputed land but, rather whether he is the true owner of the land. The Appellant was dissatisfied with the ruling thus this appeal.
The appellant raised a sole issue thus:
”Whether considering the facts and circumstances of this case, the trial Court was not wrong when it rejected the Deeds of Assignment and Certificate of Customary Right of Occupancy on the ground that they were not registered.”
In response, the Respondent raised a preliminary objection against grounds 5 and 6 of the Notice of Appeal as not being competent, alleging that they are not complaints against any finding of the trial Court. The grounds for the objection were as follows:
1. Grounds 5 and 6 are not competent as they are not complaints against any finding of the trial Court.
2. Grounds 5 and 6 are incompetent as they are not borne out of the ruling of the trial Court.
3. A party can only appeal on ratio decidendi and findings of the trial Court.
4. The incompetent grounds 5 and 6 forms part of the grounds upon which the appellant’s sole issue for determination is formulated.
5. The Court cannot separate incompetent grounds from competent grounds in the issue for determination.
6. The incompetent grounds have constituted virus to other grounds contained in the appellant’s issue for determination.
7. The sole issue formulated from both competent and incompetent grounds is incompetent.
8. Once the issue for determination in the brief is incompetent, the brief of argument also becomes incompetent.
9. Appeal without brief of argument cannot stand.
In the alternative, the Respondent formulated a sole issue for the determination of the appeal thus:
WHETHER THE LEARNED TRIAL COURT WAS NOT RIGHT WHEN IT HELD INADMISSIBLE AND REJECTED THE CERTIFICATE OF CUSTOMARY RIGHT OF OCCUPANCY NO. 1377 AND 1378 DATED 9TH MAY, 2007 AND DEED OF ASSIGNMENT DATED 21ST MAY, 2009 FOR FAILURE TO COMPLY WITH SECTIONS 2,3 AND 15 OF THE LAND REGISTRATION LAW OF KWARA STATE CAP. L3. 2006.?
When the appeal was argued, the learned counsel to the Appellant I.O. Atofarati Esq. who settled the brief of argument did not appear despite service of the hearing notice on 3/4/8. The appellant?s brief of argument filed on 30/3/16 but, deemed filed on 27/2/18, was deemed argued. In arguing the Respondent’s sole issue, it was submitted that generally speaking, registrable instruments are inadmissible by the provisions of Section 18 of the Land Registration Law of Kwara State but, it has exceptions such as when the documents are pleaded as receipts as in the present case. See, USMAN VS. GARKE (1999) 1 NWLR (PT. 587) 466, OKOYE VS. DUMEZ NIG. LTD (1985) 1 NWLR (PT. 4) 789, AJAEGBU VS. EGENTI (2012) ALL FWLR (PT. 650) 1278 at 1296 and ALI VS. UGWU (2012) ALL FWLR (PT. 619) 1078 at 1109. The document was argued to have been pleaded in paragraph 4 of the Amended Statement of claim as receipts, page 125 of the printed records of appeal. See, also AGWUNEDU VS. ONWUMERE (1994) LPELR 259 SC and KWANDE VS. MOHAMMED (2014) LPELR 22757.
With reference to page 173 of the printed records, it was submitted that the trial Court appreciated the position of the law but, considered at this stage the entire claim of the appellant which ought not to have been considered. It was argued that the law was misapplied when the documents were rejected. Further, that paragraph 4 explains the purpose for which the documents were sought to be tendered. It was the contention of the learned counsel that the trial Court was wrong to have rejected the documents because admissibility of a document is separate from the determination of whether the document can secure the relief claimed or not. The trial Court was said to have gone ahead to conclude the substantive matter at this stage by considering the reliefs claimed by the appellant which is wrong, as the main issues ought not to have been determined at the interlocutory stage. See, OJUKWU VS. GOVERNOR OF LAGOS STATE (1986) 3 NWLR (PT. 26) 39 at 45. It was concluded that from the reasons given by the trial Court for rejecting the documents sought to be tendered, the trial Court had determined the entitlement or otherwise of the appellant to the reliefs sought which should be left for the end of the trial. We were urged to set aside the ruling on allowing the appeal and admit the documents in evidence.
On the part of the Respondent, the learned counsel to the Respondent, Oludare Akanbi Esq. relied on his brief of argument filed on 9/3/18, as his argument in support of the Preliminary Objection (pages 3 – 10 of the brief) and in the alternative his response to the appeal, at pages 10 – 21 of the brief. In arguing the preliminary objection, it was submitted that grounds 5 and 6 of the Appellant’s grounds of appeal are against findings not contained in the ruling of the trial Court and also not against the ratio of the ruling. It was argued that a ground of appeal must attack the findings of the Court and not what was not contained in the ruling. See, DUKE VS. EPHRAIM (2010) ALL FWLR (PT. 549) 1015 at 1025 PARA. E and TERIBA VS. ADEYEMO (2010) 11 NWLR (PT. 211) 242 at 267 PARAS B – C.
It was argued that the issue of attaching weight to the affected documents did not arise in the ruling since no evidence was tendered or received by the trial Court to have warranted the Court attaching weight to the evidence, therefore that the Court did not and could not have acted on documents not yet before it. See, NIGERIAN PORTS PLC VS. B.P. PTE LTD (2012) 18 NWLR (PT. 1333) 454 at 490 PARAS. A – B.
It was further argued that ground 6 of the Notice of Appeal is based on an obiter dictum and not a finding of the trial judge and therefore incompetent. See, UNILORIN VS. AKINYANJU (2008) ALL FWLR (PT. 406) 1989 at 2006 PARAS. A – C and FABUNMI VS. AJAYI (2008) ALL FWLR (PT. 444) 1458 at 1471 PARA. G.
It was argued that grounds 1 – 7 of the Notice of appeal were utilized to formulate the appellant’s sole issue for determination and if grounds 5 and 6 are found to be incompetent, the other grounds would have been contaminated making all the grounds incompetent. Further, that if all the grounds from which the appellant’s sole issue was formulated from are discarded the sole issue would be incompetent and also the entire appeal. See, SOSANYA VS. ONADEKO (2000) 11 NWLR (PT. 677) 34 at 53 PARAS. B – F amongst others. We were urged to sustain the objection and dismiss the appeal.
In the alternative, the learned counsel to the respondent responded to the argument of the learned counsel to the appellant. In arguing the sole issue, it was submitted that the trial Court was right to have rejected and marked as inadmissible the Certificate of Customary Right of Occupancy No: 1377 and 1378 dated 21st May, 2007 and Deeds of Assignment dated 21st May, 2009, for failure to comply with Sections 2,3 and 15 of the Land Registration Law of Kwara State, because these are registrable instruments which were not registered. It was argued that the documents sought to be tendered qualify as instruments as the documents transfer interest in land to the appellant.
Further, that the documents are the root of title of the claimant, reference was made to paragraph 17 of the statement of claim and Section 3 of the Land Registration Law of Kwara State which requires any document or instrument which transfers interest in law to be registered before it could be admissible in evidence, also Section 15 of the same law. See,JOHN VS. IGBO – ETITI L.G.A. (2013) 7 NWLR (PT. 1352) 1 at 15 PARAS. B – D, USMAN VS. KAREEM (1995) 2 SCNJ 158 at 164, LAWSON VS. AFANI CONT. CO. LTD (2002) 2 NWLR (PT. 752) 585 at 612 – 613 and OKEREKE VS. YAR’ADUA (2008) 12 NWLR (PT. 1100) 95 at 127 PARA. F.
In alternative argument, without conceding that the documents are admissible as a receipt as contended by the learned counsel to the appellant, it was submitted that the Deeds of Assignment and the Customary Right of Occupancy can only be admissible for proving equitable interest or as a receipt or an acknowledgment of the payment of money in respect of Customary Ownership which is not the case here. See, ADESANYA VS. ADEROUNMU (2000) 9 NWLR (PT. 672) 370 at 384 PARAS. C – E, ISAAC OGUBAMBI VS. ABOWAB (1951) 13 WACA 222 and LAMIDI FAKOYA VS. ST PAUL CHURCH SHAGAMU (1966) 1 ALL NLR 74.
It was further argued that the documents were pleaded as evidence of sale, meaning title, contrary to the submission that the documents were pleaded as receipt and not as title. It was agreed that the unregistered documents could be tendered to prove equitable interest or evidence of payment in respect of a claim for Customary Ownership or equitable interest, which was contended not to be the case here and therefore does not fall under the exception for admissibility of unregistered instrument where the exception could be applicable. It was argued that in the said paragraph 4 above the documents were pleaded by the appellant to establish the legal title of the Appellant which makes the document inadmissible. It was concluded that the trial Court did not determine the substantive suit at the interlocutory stage.
The appellant’s reply brief filed out of time was not regularized as at when the appeal was argued, same was struck out on the application of the learned counsel to the Respondent. The preliminary objection would therefore be determined based on the Respondent’s argument alone. I have examined the argument of the learned counsel to the Respondent.
I am of the humble but, firm view that the long and short of the appellant’s appeal against the ruling of the trial Court is the rejection of the documents sought to be tendered for the reason that they are registrable instruments that are not registered. Contrary to the submissions of the learned counsel to the Respondent, the appeal is against the finding of the trial Court that the Deeds of Assignment and Certificate of Customary Right of Occupancy sought to be tendered are registrable instruments that were not registered as required by law and therefore not admissible. Grounds 5 and 6 of the Notice of appeal are clearly complaints against the finding of the trial Court in its ruling and not obiter dictum as argued by the learned counsel to the Respondent. The complaint in grounds 5 and 6 is the rejection of the documents sought to be tendered in evidence in the main or body of the Ruling and not obiter, for being inadmissible having not complied with Sections 2,3 and 18 of the Land Registration Law of Kwara State, Cap L3. 2006.
I am of the view that the appellant’s grounds 5 and 6 are against the main body of the ruling of the trial Court and are therefore competent. The sole issue which grounds 5 and 6 were utilized in its formulation is also competent. The preliminary objection is therefore without merit, same is hereby dismissed.
With the main appeal, it is apt to examine the purpose for which the Deeds of Assignment and Certificates of Customary Rights of Occupancy were sought to be tendered. In paragraph 4 of the appellant’s Amended Statement of claim, the documents in question were pleaded as receipts. No doubt the documents are registrable instruments that are not registered. The documents were pleaded as receipts evidencing purchase. The paragraph reads thus:
4. The plaintiff avers that he bought the said plots of land at Baba Ode covered by Customary Right of Occupancies Nos. 1377 and 1378 measuring 924.16m2 each from Alhaja Falilat Usman and Bolajoko Abdullahi at the rate of N200,000.00 which was evidenced by a Deed of Assignment/Agreement executed by the original allottees, i.e. from Alhaja Falilat Usman and Bolajoko Abdullahi in favour of the plaintiff/claimant as receipt of payment on the said plots of land. The plaintiff shall found and rely on the Deed of Assignment/Agreement dated 21st May, 2009 as evidence of sale and receipt of payment in respect of Block 1 plot 1 and Block 1 Plot 2 of the site plan Baba Ode layout, covered by Customary Right of Occupancies Nos. 1377 and 1378 respectively.
From the above pleading, it is clear that the documents were pleaded as ‘receipt of payment on the said plots of land . as evidence of sale and receipt of payment.’ The documents sought to be tendered were pleaded as receipts. I agree with the submissions of the learned counsel to the Appellant that the trial Court appreciated the law that unregistered registrable instruments would be admissible if pleaded as receipts, reference was made to page 173 of the printed records of appeal.
In MALLAM JIMOH ATANDA VS. THE HON. COMMISSIONER FOR LANDS and HOUSING, KWARA STATE & ANOR (2017)-42346 SC, the Supreme Court held that:
It is trite and in fact well established and settled law, that instruments that are registrable but, were not so registered, are still admissible in evidence. IF ONLY it was meant to serve the purpose of evidencing payment of purchase price or fees but, certainly not for the purpose of creating or establishing title to land. A registrable instrument which has not been registered is also admissible ONLY to establish or prove equitable interest or to prove payment of purchase of money. See, SAVAGE VS. SURROUGH (1937) 13 NLR 141; OGUNBAMBI VS. ABOWAB (1951) 13 WACA 22; OKOYE VS. DUMEZ NIG. LTD & ORS (1985) NWLR (PT. 4) It can only be of evidential value, if and only if it was aimed at proving payment of money for purchase of land.
The documents sought to be tendered in evidence are admissible as receipts or acknowledgment for the payment of money in respect of the land by the appellant. See, OGUNLEYE VS. SAFEJO (2009) LPELR 8081 (CA), OKOYE VS. DUMEZ (1985) 6 SC 3 and ADESANYA VS. ADEROUNMU (2000) 6 SCNJ 242.
The trial Court erred when it went further to consider the appellant’s claim, which the Court ought not to have done at the interlocutory stage. The trial Court at the stage at which the documents were sought to be tendered should have considered whether the documents were relevant, pleaded and if pleaded as receipts or documents of title. The claim of the appellant ought to have been considered at the end of the trial in the substantive suit. From paragraph 4 of the Amended Statement of Claim, what should have been considered is the admissibility of the documents. Whether the documents would secure the grant of the reliefs sought is another thing.
I agree with the submissions of the learned counsel to the appellant in his brief of argument that the trial Court ought not to have considered the reliefs claimed by the appellant and making a pronouncement on the reliefs at the stage the documents were sought to be tendered. Issues to be determined are not to be considered at the interlocutory stage. See, ORJI VS. ZARIA INDUSTRIES LTD & ANOR (1992) LPELR 2768 (SC) where his lordship Wali, JSC at PP. 23 – 24, PARAS. F ? A held thus:
”. It is the duty of the trial Court, when dealing with interlocutory matters, to avoid making statement giving the impression that it has made up its mind on the substantive issue on trial before it. Justice must not only be done, but must be seen to have been done.”
See, also FSB INT. BANK LTD VS. IMANO (NIG) LTD & ANOR (2000) LPELR 1219 (SC) PP. 28 – 29, PARAS. E – A, ABOSELDEHYDE LABORATORIES PLC VS. UNION MERCHANT BANK LTD & ANOR (2013) LPELR 20180 (SC) PP. 52 – 53, PARAS. E A and AMUZIE VS. STATE (2016) LPELR 41531 (CA) PP. 12 – 13, PARAS. P – A.
From the reasons given by the trial Court for rejecting the documents as rightly observed by the learned counsel to the appellant, the trial Court has delved into the appellant’s entitlement or otherwise of the reliefs sought, that should be left to be determined at the end of the trial and not in course of trial. Analyzing the appellant’s claim at the interlocutory stage was premature. In sum, I hold that the appeal is meritorious, I allow same. The Ruling of the trial Court rejecting and marking as rejected the documents sought to be tendered is hereby set aside. Instead, the rejected documents (two Deeds of Assignment and Certificate of Customary Right of Occupancy) should be admitted in evidence and appropriately marked as Exhibits.
Parties are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: I agree
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances:
Counsel to the Appellant served but absent.For Appellant(s)
Oludare Akanbi with him, D.O. BamideleFor Respondent(s)
