ALHAJI ISIYAKU YAKUBU ENT. LTD v. TERU & ANOR
(2020)LCN/14368(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/YL/11/2019
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD APPELANT(S)
And
1) MR. AUGUSTINE TERU 2) MALLAM MAHMUDU MAFIA RESPONDENT(S)
RATIO
BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
That the law is settled that where in an action for declaration of title to the land in dispute, the plaintiff is basing his title on a grant, the grantor or his successor in title must be called to prove his root of title – Echenim v. Ngbeke (1994) 4 NWLR (Pt. 341) 746 Ratio 3. PER BAYERO, J.C.A.
THE OBJECT OF THE ILLITERATE PROTECTION ACT
It must not be forgotten that the object of the Illiterate Protection Act is to safeguard illiterates from fraud and exploitation. It is to prevent the writer of a document which creates legal rights from enforcing it unless he has strictly complied with the Law. See Itauma v Akpe-Ime (2000) 12 NWLR Part 680 Page 156 at 175 Para E-F per Ogwuegbu JSC; Anyabunsi v Ugwunze (1995) 6 NWLR Part 401 Page 255 at 274 Para F per Onu JSC.
As also held in Fatunbi v. Olanloye (2004) 12 NWLR Part 887 Page 229 SC at 250-251 Para G-A per Pats-Acholonu JSC, the object of Section 3 of the Act is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. As also held by His Lordship, Pats-Acholonu JSC in the case above, if the illiterate does not complain of non-compliance, an outsider cannot. Indeed the same Court held, in the case of John v State (2017) 16 NWLR Part 1591 Page 304 at 336 Para C-E per Kekere-Ekun JSC, that absence of an illiterate jurat does not make a document null and void. The absence may only affect the weight. See also Wilson v Oshin (2000) 9 NWLR Part 673 Page 442 at 466-467 Para G-A per Karibi-Whyte JSC. PER BAYERO, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
The law is settled that parties are bound by their pleadings and evidence led on unpleaded matters goes to no issue. In the same way unpleaded facts elicited in cross examination go to no issue. See OJOH V. Kamalu & 3 Ors. (2006) AFWLR (Pt. 297) 978 at 995 Paras. B-E Ratio 1. It is the contention of the Appellant’s Counsel that the facts of the land been Government land was accordingly pleaded; he referred to paragraphs 1 (c), (g), and 2 (a) of the Plaintiff’s reply to the 2nd Defendant’s statement of defence reflected on pages 117-118 of the printed record. A careful perusal of those paragraphs shows that there is no where in those paragraphs and the entire pleadings where the issue of Forest reserve is mentioned. In Odom v. PDP (Supra) it was held that:-
“Any evidence led by a party which is in conflict with the party’s pleadings goes to no issue and should either be discountenanced or expunge by the trial Court.” PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This Appeal germinated from the Judgment of Adamawa State High Court sitting in Yola delivered by A. A. Waziri J., in Suit No. ADSY/107/2016 on 30/01/2018. The Appellant as Plaintiff before the Lower Court commenced this action by way of Writ of Summons claiming against the Respondents jointly and severally as follows:-
a) A declaration that the Plaintiff is entitled to all that piece of land lying and situate along Jimeta-Numan Road adjacent to the uncompleted new motor park and market covered by a Gongola (now Adamawa) State Certificate of Occupancy number GS/8976 measuring 9.928. 75 sqm.
b) A perpetual injunction restraining the Defendants, their privies, workmen or howsoever called from entering into and tempering with the plaintiff’s land in anyway howsoever.
c) An order of Court directing the defendants to apply to the Adamawa State Ministry of land and survey, finance and effect the re-establishment of beacons removed by them on the Plaintiff’s land.
d) An order of Court directing the Defendants to remove anything kept, planted or erected on the
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Plaintiff’s land within seven (7) days of delivery of Judgment in this Suit or forfeit same thereafter.
e) Six Hundred Thousand Naira (N600,000) only as special damages at Three Hundred Thousand Naira (N300,000) per annum for the period one (1) year from 2015 to 2016 being the amount that was to be paid as rent on the piece of land by two interested persons.
f) The sum of Six Hundred Thousand Naira (N600,000) only per annum as rent for the subsequent years as this Suit shall be subsisting in Court till final determination thereof.
g) Twenty Million Naira (N20,000,000) only as general damages.
h) Ten per cent (10%) monthly interest on the Judgment sum from the date of Judgment till final liquidation.
i) Cost of filing and prosecuting this Suit (Counsel fee of One Hundred and Eighty Thousand Naira (N180,000) only).
The Appellant adopted his written statement on oath and tendered Exhibits A, B, C, D, E, F, G – G2, H1 – H2, I1 – 12, K1 – K4 and L1 – L5 in support of his claim. The Respondents as Defendants called five (5) witnesses and tendered Exhibits M, O and Q. The lower Court dismissed the case
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of the Appellant. Miffed with decision of the Lower Court, the Appellant filed his Notice of Appeal on 23/11/2018. The Appellant’s Brief was filed on 23/04/2019 but deemed filed and served on 10th June, 2019. The 1st Respondent’s Brief was filed on 9th July, 2019. The 2nd Respondent’s Brief was filed on 9th July, 2019. The Appellant’s Reply Brief to the 1st Respondent’s Brief was filed on 2nd September, 2019 but deemed properly filed and served on 15th October, 2019. The Appellant’s Reply Brief to the 2nd Respondent’s Brief was filed on 2nd September, 2019 but deemed properly filed and served on 15th October, 2019. In the Appellant’s Brief six (6) issues are formulated for determination:-
1. “Whether the Trial Court was right when it held that the absence of a Jurat on Exhibit L1 made the document inadmissible. (Distilled from Ground three (3) of the Grounds of Appeal).
2. “Whether the trial Court was right when it discountenanced the evidence of the on f Plaintifforest reserve elicited under cross examination on the ground that it was not pleaded.(Distilled from Ground four (4).
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- “Whether the Trial Court was right when after Ruling on the admissibility of Exhibits K, K1, K2, K3, K4 and K5 turned around to hold in its Judgment that the documents were inadmissible. (Relates to Ground 5 (five) of the Grounds of Appeal).
4. “Whether in the context of this suit the trial Court was right when it held that since there were no replies to Exhibits R and S which were letters, the recipients were presumed to have no objection to the contents of same. (Distilled from Ground 6 (six) of the Groundsof Appeal).
5. “Whether the Trial Court was right when it placed reliance on Section 167 (d) of the Evidence Act, 2011 to hold that having failed to call the grantor or its official to testify, it could be concluded that the evidence of the grantor would be unfavourable to the Exhibit tendered. (Distilled from Ground 7 (seven) of the Appellant’s Grounds of Appeal.”
6. “Whether the Trial Court was right in dismissing the Plaintiff’s suit. (Distilled from Grounds 1, 2, 8 and 9 of the Grounds of Appeal).”
On issue one, it is submitted that Exhibit L1 is a letter written by the Plaintiff/Appellant but
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signed by its Managing Director in respect of which the trial Court held as follows:
“I have carefully examined Exhibit L1 dated the 19/2/2016 addressed to Mallam Mahmuda Mafiya and signed by Alhaji Isiyaku Yakubu the Managing Director of the Plaintiff. Since PWI had admitted that he is not literate and he instructed the letter to be written for him by someone, it only behoves on him to have complied with the provision of Section 3 of the Illiterates Protection Law. Accordingly Exhibit L1 is hereby expunged from the record.” Page 296 lines 1 – 5 of the printed record.
That the Trial Court expunged Exhibit L1 on the ground that it did not contain the illiterate Jurat. According to Counsel, it is only where an illiterate denies knowledge of the content of a document allegedly written for him that such a document would be in admissible or be expunged on grounds of non-inclusion of an illiterate Jurat. He referred to the case of Wilson v. Oshin (2000) 2 SCNJ 1242.
That the witness stated that he instructed someone to write Exhibit L1 which he signed and the non-inclusion of an illiterate Jurat in the exhibit does not make it
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inadmissible or capable of being expunged. He urged the Court to resolve issue one in favour of the Appellant.
On issue two, it is submitted that the trial Court on page 297 to 298 of the printed record held as follows:
“Learned Counsel to the Plaintiff has also elicited evidence under cross – examination to the effect that the disputed land was a reserved area and “forest”. I have examined the pleadings of both the Plaintiff and the 2nd Defendant and there is nowhere the issue of forest is mentioned, it is only extracted in the course of cross – examination by learned Counsel to the Plaintiff. I therefore discountenance with the evidence so elicited, all submissions and statutory provisions cited thereto”
In the instant case according to Counsel, the facts of the land being a Government land was accordingly pleaded. He referred to paragraphs 1 (c), (g) and 2 (a) of the Plaintiff’s reply to the 2nd Defendant’s statement of defence on page 117 lines 24 – 26 and page 118 lines 4 – 6 and lines 12 – 13 of the printed record.
That the evidence elicited under cross –
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examination can be relied upon citing the case of Adeosun v. Governor of Ekiti State (2012) AFWLR (Pt. 619) 1044 at 1047 Paras. B-C Ratio 6.
That the subject matter of this suit being a Government land or a reserved area was made into law long before this matter was instituted by the Forestry Ordinance Cap. 75 Adamawa Native Authority Forest Reserve (Namtari Forest) Order, 1951.
On issue three, it is submitted that the Plaintiff/Appellant on page 218 line 15 of the printed record applied to tender some photographs which the Counsel to the 2nd Defendant objected to their admissibility. That arguments were taken on the admissibility of the photographs and the trial Court when admitting the photographs into evidence on page 219 lines 15 –32 of the printed record held as follows:
“I have carefully reviewed the submissions of both learned Counsel and the authority being relied upon by Counsel to the Plaintiff and I am of the view that there are three (3) criteria governing admissibility of a document/photograph in evidence, namely:
a. Is the document pleaded?
b. Is it relevant to the inquiry being tried before the Court?
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- Is it admissible in law?
See the case of Chevron (Nig) Ltd. v. Aderi Bige (2012) 4 NWLR (Pt. 1289) 1 and Okonji V. Njokanma (1999) 14 NWLR (Pt. 639) 250. A document/photograph is therefore admissible in evidence if it is relevant to the facts in issue and admissible in law. It is also important that the document be properly and specially pleaded. Consequently the objection of learned Counsel for the 2nd Defendant lacks merit and it is accordingly overruled. The six photographs showing the acts of trespass made by the 1st and 2nd Defendants on the Plaintiff’s land are admitted in evidence and marked as “K”, “K 1”, “K2”, “K3”, “K4 and“K5”respectively”.
That the Trial Court however in its Judgment turned round expunged the photographs and held on page 295 lines 6 of the printed record as follows:
“There was an objection raised by learned Counsel to the 2nd Defendant and in a considered bench Ruling his objection was overruled and the photographs were accordingly admitted in evidence and marked as Exhibits K, k1, K2, K3, K4 and K5 are hereby expunged from the record of the Court.
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That the Trial Court having made a pronouncement after citing authorities on the admissibility of the photographs cannot sit on Appeal over its own ruling. That where a document has been admitted, the only option opened to the Trial Court is to see whether it can ascribe any weight to the document or not – Motanya v. Elinwa (1994) 7 NWLR (Pt. 356) 252 at 260.
Counsel submitted that the Trial Court expunged the photographs (Exhibits K1, K2, K3, K4 and K5) because the photographer was not called relying on Section 83 (1) of the Evidence Act. That this is against the position of the Court of Appeal that that Section of the Evidence Act is not applicable to computer generated documents like the photographs expressed in the case of Brilla Energy Ltd. v. F.R.N. (2018) LPELR CA/L/658/2017. According to Counsel, the Trial Court was in error when it expunged the documents tendered by the Appellant/Plaintiff before it. He urged this Court to resolve issue three in favour of the Appellant and against the Respondents.
As regards issue four (4) it is argued that the trial Court allowed Exhibits R and S tendered by the 2nd Defendant to weigh on
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its mind while dismissing the Appellant’s case before it. That the trial Court on page 300 lines 10 – 16 of the printed record held as follows:
“It is also trite law that it is incumbent on a recipient of a business letter to reply as a default to reply can be presumed that there are now objections to the proposals contained therein see the case COOPERATIVE DEVELOPMENT BANK PLC VS EKANEM (2009) 16 NWLR (part 1168) 585 CA. The two documentary Exhibits were letters written by the Adamawa Emirate Council dated the 13/1/2016 and the one dated 9/3/2016 duly marked as Exhibits “R” and “S” complained of lack of payment of compensation in respect of the disputed land and others tagged GSYP/44.
According to Counsel, Exhibits R and S were not addressed to the Plaintiff/Appellant but the Commissioner of Lands, Adamawa as shown on the exhibits which would have required the Appellant to respond to the said exhibits or be caught up by the principle enunciated in the case cited by the trial Court when it held that:
“It is also trite law that it is incumbent on a recipient of a business letter to reply as a
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default to reply can be presumed that there are no objections to the proposals contained therein.
It is further submitted that the Honourable Commissioner, Adamawa State Ministry of Land and Survey to whom the exhibit was addressed to was not a party to this suit at the trial Court. That the holding of the trial Court on non – response to the business letters (the exhibits) by the Appellant cannot stand. He urged the Court to resolve issue four in favour of the Appellant and against the Respondents.
On issue five, Counsel referred to page 301 of the printed record where the Lower Court held as follows:
“The Plaintiff has placed reliance on Exhibit E. The question is why the Plaintiff deemed it unnecessary to call his grantor or any of its officials to come to Court to testify in respect of the disputed land. The only logical conclusion is that if he had called them to Court their evidence would have been unfavourable to it by virtue of Section 167 (D) of the Evidence Act, 2011.
He submitted that the position of the trial Court above is that the failure of the Appellant/Plaintiff to call a staff of the Ministry of Land and Survey
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which issued Exhibit E (its title document) to testify amounts to withholding evidence. According to Counsel, this Court and indeed the Apex Court had set out ways by which a party can prove title to land.
That proof of title by the production of title document is one of the ways of proof of title to land. That in such proof of title, the law does not specify witnesses or number of witnesses a party is required to call in order to establish his claim. That calling a sole witness will suffice. He referred to the case of MTN Communications v. Amadi (2013) AFWLR (Pt. 670) 1329 at 1348 Paras. C-D Ratio 1.
That Section 167 (d) of the Evidence Act relied on by the trial Court found its interpretation in the case of Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16 where the Supreme Court held that:
“Section 148 (d) of the Evidence Act (now Section 167 (d) of the Evidence Act, 2011… deals with the failure to call evidence and not the failure to call a particular witness.”
Counsel further submitted that exhibit E was admitted into evidence without any objection as such the presumption in Section 167 (d) is inapplicable. He urges this
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Court to resolve the fifth issue in favour of the Appellant and against the Respondent.
As regards issue six (6), Counsel referred to the cases of Mulikatu Erinfolami v. Pious Oso (2013) AFWLR (Pt. 673)1991 at 1999 Paras. A-D Ratio 2 and Awodi v. Ajagbe (2009) AFWLR (Pt. 454) 1413 at 1434 Paras. C-H and submitted that the Appellant/Plaintiff chose to prove his title to the land by the production of documents of title and tendered Exhibits A, B, C, D1 – 5, E, F, F1, G, G1, G2, H1, H2, I, I1, K, K1, K2, K3, K4, L1, L2, L3, L4 and L5. According to Counsel, exhibits B, C, D, E, F and F1 were admitted without objection. That the Trial Court in spite of the Appellant’s/Plaintiff’s proof of its case dismissed the Appellant’s case on the grounds that:
a. The land was vested in the Adamawa Emirate Council (hence subject of traditional title and compensation was not paid).
b. The Plaintiff did not prove the exact demarcation of her land.
While adopting his submissions under issues two and five he added that even the evidence of DWI who was the 1st Defendant before the Trial Court and the 1st Respondent herein support the case
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of the Appellant that the land was not subject of traditional title but statutory right when he testified under cross – examination as follows:
“It is true that the land in dispute falls within a Government lay out.” (Page 252 of the printed record).
According to Counsel, the 1st Respondent traces his title to the same grantor i.e. the Adamawa State Ministry of Land and Survey and tendered Exhibit M. Reference was made to paragraphs 5 and 6 of the 1st Defendant/1st Respondent’s statement on oath on page 64 of the printed record. That in spite of these facts the trial Court dismissed the Appellant’s/Plaintiff’s claims on the ground that the land subject matter of this suit was originally held by the Lamido of Adamawa late Dr. Aliyu Mustapha and placed reliance of Exhibit S. He referred to page 300 lines 30 – 32 of the printed record. That Exhibit “S” relied on by the trial Court was addressed to the Commissioner for Land and Survey Yola who was not a party to the suit. That it is dated 13/1/2016 the year this suit was instituted and seeks to be a complaint against a layout that was carved out by the State
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Government and a Certificate of Occupancy issued to individuals including the Plaintiff since 3/9/91. That it is in respect of GSYP.44 and there is nothing before the trial Court to show that GSYP.44 is the same as the land in dispute. On the issue that the Appellant did not identify the land, Counsel submitted that the identity of the land was not in issue from the pleadings.
Counsel further submitted that assuming without conceding that the identity of the land was in issue, exhibit E which is accompanied by a site plan has specifically identified the land claimed by the Appellant/Plaintiff with precision (page 316 of the printed record). That the site plan was signed by the Surveyor General in May, 1991 and specified the land with its dimensions as follows:
That the sites plan having specified the dimensions such that a surveyor can identify and mark it out, it absolves the Appellant/Plaintiff of the need to strictly prove the identity of the land. He referred to the case of Bankole v. Adeyeye (2014) AFWLR (Pt. 721) 1570 at 1573 Paras. C-E Ratio 4. According to Counsel, the visit to the locus in quo absolves the Appellant/Plaintiff of the burden of
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proving the identity of the land. Referring to Bankole v. Adeyeye (Supra). He urged the Court to resolve the sixth issue in favour of the Appellant, allow the Appeal, set aside the Judgment of the lower Court and enter Judgment in favour of the Appellant. The 1st Respondent formulated a lone issue for determination thus:-
“Whether the trial Court was right in dismissing the Plaintiff’s suit.”
It is submitted that it was proper for the trial Court to have dismissed the case of the Appellant before it. According to Counsel there are five ways of proving title to a land before the Court would grant the declaration of title in favour of a party. He referred to the case of Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 397. That the Appellant/Plaintiff failed to lead credible evidence relating to his title through any of the five ways. According to Counsel, none of the exhibits tendered by the Appellant were relevant to its case.
That the 2 writs of summons tendered on page 218 of the printed record were public documents and were not certified: that the Lower Court was right to have discountenanced them. According to Counsel,
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Photocopy of Writ of Summons without certification is not admissible. He referred to Section 102, 104 and 105 Evidence Act 2011 and the case of Daniel Tayar Transport Company (Nig.) Ltd. v. Busari (2001) NWLR (Pt. 695) 455.
That the photographs tendered as exhibits were either produced from a film contained on a negative image or could have been produced from a digital camera to be qualified as documents produced by computer which must cross the hurdles of Section 84(4) of the Evidence Act 2011. According to Counsel they were properly rejected by the Court on page 295 lines 10 and 12 of the printed record.
That the Appellant under cross-examination by Counsel to the 1st Respondent on pages 220-221 of the printed record informed the Court that he did not obtain western education.
That he does not know the land of the 1st defendant and his land is bounded by the plot of an unknown person but he does not know the measurement of the plot of the unknown person.
According to Counsel, the implication of the testimony of the Appellant that he did not obtain western education is that, he is an illiterate. That Exhibits H and H1 were prepared and
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signed by the Appellant witness without a Jurat, he urges the Court to reject and discountenance this exhibit. He referred to Section 119 of the Evidence Act, 2011.
It is further submitted that the Appellant’s witness does not know with certainty his land. While he told the Court that the 1st Respondent trespassed on 1/3 of his land and 2nd Respondent trespassed on 2/3. That at the locus in quo as shown at page 302 of the printed record, the Appellant told Court that he will not be able to identify the true position of the land because his beacons have been removed. That dumping the survey plan on the lower Court without leading evidence will not entitle the Appellant a declaration of title to the disputed land. That the evidence of the Appellant that the land is situated along Numan- Yola Road is not enough to identify the land.
Counsel further argued that DW1 who gave evidence on 30/06/2017 told the Lower Court that the 2nd Respondent bought the land from one Alhaji Audu Mai Itache. That Alhaji Audu Mai Itache as DW2 told the Court that the land was given to him as a gift from Adamawa Emirate Council; and he tendered Exhibits M and M1. That
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the evidence of those witnesses was not contradicted. That DW4 tendered Exhibits O, P and Q, and told the Court that the land originally belongs to Lamido and that the Government did not pay compensation to the Emirate Council before acquiring same. He urged us to dismiss the Appeal and affirmed the decision of the Lower Court. The 2nd Respondent in his Brief of argument adopted the six (6) issues formulated by the Appellant and submitted that:-
On issue one, the trial Court was right when it held that the absence of a Jurat on Exhibit L renders the document inadmissible and referred to Section 1 of the Illiterates Protection Law. According to Counsel, the effect of non-compliance with the law renders the document inadmissible and the Court was right to expunge it after it was wrongly admitted into evidence.
On issue two, it is submitted that evidence elicited during cross examination which goes contrary to the facts pleaded cannot be relied upon. According to Counsel, there is nowhere in the pleadings of both parties where the issue of forest reserve is mentioned as rightly observed by the trial Court at page 298 lines 11-15 of the printed record.
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He cited Odom v. PDP (2015) AFWLR (Pt. 773) 1968 at 1969 Ratio 8.
As to issue three, Counsel submitted that the trial Court has the competence to expunge exhibits K, K1, K2, K3, K4 and K5 when it discovered that the documents did not have any probative value by virtue of the Evidence Act. On issue four it is argued that from the pleadings the Appellant has indicated that he purportedly acquired his grant from the Ministry of Land and Survey, Yola (page 5 of the printed record. That the law is settled that where in an action for declaration of title to the land in dispute, the plaintiff is basing his title on a grant, the grantor or his successor in title must be called to prove his root of title – Echenim v. Ngbeke (1994) 4 NWLR (Pt. 341) 746 Ratio 3. According to Counsel, the failure by the Appellant to call the recipients of Exhibits R and S as witnesses was deliberate which gave rise to the presumption that the contents of those exhibits are correct.
Regarding issue five, it is submitted that the trial Court was right when it held that the failure of the Appellant to call its grantor meant that the evidence of the grantor would be
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unfavourable to Exhibit E. That the 2nd Respondent has joined issues with the Appellant that the 2nd Respondent holds title of the land claimed by the Appellant and that the Ministry of Land does not own that land but the Appellant failed and neglected to call the Ministry its purported grantor to disprove the claim of the 2nd Respondent. On issue six, Counsel submitted that the Appellant having failed to identify the boundaries of the land and its refusal to call a surveyor to ascertain the land in dispute, the trial Court was right when it dismissed the claims of the Appellant (pages 300 and 302 of the printed record). That the visit to the locus by the trial Court does not absolve the Appellant to prove the identity of the disputed land. He urged the Court to dismiss the Appeal and affirm the decision of the trial Court.
In the Appellant’s Reply Brief to the 1st Respondent’s Brief of argument, it is argued that the 1st Respondent has placed reliance on the case of Mogaji v. Cadbury (Nig.) Ltd. (Supra) to which Counsel submitted that the authority is a good law that unequivocally helps the case of the Appellant. That the case of
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Daniel Tayar Transport Company (Nig.) Ltd. v. Busari (Supra) and Sections 102, 104 and 105 of the Evidence Act, 2011 cited by the 1st Respondent are not applicable in this Appeal and urged this Court to so hold. As to the case of Kano v. Maikaji (Supra) which was cited to show that the Appellant did not establish with certainty the land in respect of which he sought the reliefs; Learned Counsel adopted his authorities and submissions under paragraphs 4.6.17 of the Appellant’s Brief of Argument and paragraph 2.15 of the Appellant’s reply brief to the 2nd Respondent’s Brief of Argument as their reply thereto. Regarding the case of Okhuarobo v. Aigbe (Supra) on the allegation that the evidence of the Appellant is at variance with its pleadings, Counsel submitted that, that authority simply helps the case of the Appellant. Because, it was the evidence of the 1st Respondent that was at variance with his pleadings. Counsel further submitted that the case of UBA v. Samuel Ujor (Supra) and Ogidi v. The State (Supra) are not relevant to this Appeal. He urged the Court to allow this Appeal, set aside the Judgment of the lower Court and enter Judgment for the Appellant.
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In the Appellant’s Reply Brief to the 2nd Respondent’s Brief of Argument, it was argued that the 2nd Respondent has referred this Court to the case of Ezekwe v. Audu (Supra) on the effect of non-compliance with Section 1 of the Illiterate Protection Law but did not address the distinction between the case of Ezekwe v. Audu (Supra) which expresses the effect of non-compliance with the case of Wilson v. Oshin (Supra) and Odumare v. Ogunnaika (Supra) where the Supreme Court and this Court expressed who the illiterates protection law protects.
That by the pronouncements of the Apex Court in Wilson v. Oshin (Supra) and this Court in Odumare v. Ogunnaika (Supra) the Illiterates Protection Law Protects the illiterate and can only be invoked where there is a denial as to the correct statements made by an illiterate in a document, which is not the case of this Appeal.
As to the case of Justus Nwabuoku & 5 Ors. v. Francis Onwordi & Ors. (Supra) on the competence of a trial Judge to disregard an admitted document admitted at the stage of writing Judgment, it is submitted in reply that this authority has no applicability in the
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context of Exhibit L which was disregarded by the trial Judge for want of a Jurat even when there was no denial of its content by the Appellant who tendered same.
With regards to the cases of Anioke v. Anioke (Supra) and Odom v. PDP (Supra) that evidence elicited under cross – examination which is at variance with pleadings are inadmissible, Counsel submitted that those authorities have no applicability in view of the fact before the trial Court and the position of law expressed in the cases of Adeosun v. Governor of Ekiti State (Supra) and the provisions of Section 122 (1) of the Evidence Act, 2011 on facts which a Court should take judicial notice of. That the 2nd Respondent has placed reliance on the case of Justus Nwabuoku & 5 Ors. v. Francis Onowordi & 2 Ors. (Supra) that the trial Court and indeed any Court may reject admitted evidence or disregard such evidence. Counsel distinguished between the authority cited and the facts of this suit.
That in the authority cited, it contemplates a situation where a document is admitted without objection as distinct from where an objection was raised as to the admissibility of the document and
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ruled upon. In the former scenario according to Counsel, a Court may disregard same but in the latter situation it cannot as expressed in the cases of Akinwale v. Akinwale (2011) AFWLR (Pt. 577) 797 at 799 and Afolabi v. Alaremu (2013) AFWLR (Pt. 691) 1621 at 1633-1634. On the submission of the 2nd Respondent that the Trial Court expunged Exhibits K, K1, K2, K3, K4 and K5 having regard to Section 84 of the Evidence Act and not Section 83, Counsel argued that the trial Court expunged the exhibits for lack of proper foundation for tendering same relying on Section 83 of the Evidence Act, 2011 and not Section 84. He referred to the holding of the trial Court on page 295 lines 11 – 14 of its printed record as follows:
“Accordingly, I hold that the photographs were wrongly admitted by the Court as Plaintiff’s witness PW I was not the proper person to tender the photographs although upon laying proper foundation he could by virtue of Section 83 (1) of the Evidence Act tendered them. Having found that neither the photographer nor proper foundation laid the admitted photographs marked as Exhibits K, K1, K2, K3, K4 and K5 are hereby expunged
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from the record of the Court.”
Evidently according to Counsel, the trial Court expunged the exhibits it admitted upon an objection and its earlier ruling on the ground of failure to lay proper foundation as well as failure to call the photographer which is in respect of Section 83 (1) of the Evidence Act, 2011 which presently has no effect in respect of photographs.
That the case of Echenim v. Ngbeke (Supra) cited by Counsel to justify the holding of the Trial Court in respect of Exhibits R and S is not applicable in this appeal which has to do with the holding of the trial Court that the failure to respond to Exhibits R and S raised a presumption that there were no objections to the proposals contained therein. That the presumption in the case ofCooperative Development Bank Plc. v. Ekanem (2009) 16 NWLR (Pt. 1168) 585 CA cited by the trial Court contemplates where a recipient of the letter is a party to an action in which such a letter is tendered which is not the situation in this suit.
That the 2nd Respondent has made reference to the case of Echenim v. Ngbeke (Supra) in his submission on Exhibit E in justifying the holding of the
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trial Court that the Appellant ought to have called the issuing Ministry to testify. It is submitted that the law is trite that a document speaks for itself. He referred to the case of Osunbor v. Oshiomhole (2009) AFWLR (Pt. 463) 1366 at 1408 Paras. F-H Ratio 16.
According to Counsel the tendering of Exhibit H dated 11/12/2007 by the Appellant is proof that it has been in possession of the land in dispute for that length of time as against the letters tendered by the 2nd Respondent which is only dated recently. That the Appellant had through Exhibit I sued the Ministry of Land and Survey which is obviously in respect of a separate and distinct piece of land. He urged the Court to discountenance the submissions of the 2nd Respondent, allow this Appeal, set aside the decision of the trial Court and enter Judgment for the Appellant as per his claims before the trial Court.
DETERMINATION OF THE APPEAL
This Appeal will be determined based on the six (6) issues formulated by the Appellant which the 2nd Respondent has adopted, while the 1st Respondent adopted the Appellant’s sixth (6th) issue as his sole issue for determination.
The first
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issue is:-
“Whether the trial Court was right when it held that the absence of a Jurat on Exhibit L1 made the document inadmissible.”
Exhibit L1 is a letter written by the Appellant through its Managing Director (PW1), addressed to one Mallam Mahmuda Mailafiya. It is dated 19/02/2016 signed by Alhaji Isiyaku Yakubu (M.D. to the Appellant and PW1 before the lower Court). The lower Court in its Ruling reflected at page 296 of the printed record held in respect of the exhibit as follows:-
“I have carefully examined Exhibit L1 dated the 19/2/2016 addressed to Mallam Mahmuda Mafiya and signed by Alhaji Isiyaku Yakubu the Managing Director of the Plaintiff. Since PW1 had admitted that he is not literate and he instructed the letter to be written for him by someone, it only behoves on him to have complied with the provision of Section 3 of the Illiterates Protection Law. Accordingly, Exhibit L1 is hereby expunged from the record.”
For clarity purposes Section 3 of the Illiterates Protection Act provides:-
“A person who writes a letter or document at the request, on behalf, or in the name of an illiterate person
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shall also write on the letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement that:
a. That he was instructed to write the letter or document by the person for whom it purports to have been written and that the letter or document fully and correctly represents his instructions, and
b. If the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate person and that the signature or mark was made by that illiterate person.”
It must not be forgotten that the object of the Illiterate Protection Act is to safeguard illiterates from fraud and exploitation. It is to prevent the writer of a document which creates legal rights from enforcing it unless he has strictly complied with the Law. See Itauma v Akpe-Ime (2000) 12 NWLR Part 680 Page 156 at 175 Para E-F per Ogwuegbu JSC; Anyabunsi v Ugwunze (1995) 6 NWLR Part 401 Page 255 at 274 Para F per Onu JSC.
As also held in Fatunbi v. Olanloye (2004) 12 NWLR Part 887 Page 229 SC at 250-251 Para G-A per
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Pats-Acholonu JSC, the object of Section 3 of the Act is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. As also held by His Lordship, Pats-Acholonu JSC in the case above, if the illiterate does not complain of non-compliance, an outsider cannot. Indeed the same Court held, in the case of John v State (2017) 16 NWLR Part 1591 Page 304 at 336 Para C-E per Kekere-Ekun JSC, that absence of an illiterate jurat does not make a document null and void. The absence may only affect the weight. See also Wilson v Oshin (2000) 9 NWLR Part 673 Page 442 at 466-467 Para G-A per Karibi-Whyte JSC. In the instant case, although the illiterate Jurat is not reflected on Exhibit ‘L1’ it does not make the document null and void especially that PW1 who instructed his solicitor to write the exhibit is not complaining. In fact in the case of Fatunbi v. Olanloye (Supra) the Supreme Court held that:-
“The object of Section 3 of the Act is to ensure that what is stated there reflects what the illiterate person
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has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case.”
PW1 did not deny the contents of Exhibit L1 and did not complain about same; as such the lower Court was in error when it expunged it from the record. Issue one is therefore resolved in favour of the Appellant and against the Respondents.
Issue two is:
“Whether the Trial Court was right when it discountenanced the evidence of the Plaintiff on Forest reserve elicited under cross examination on the ground that it was not pleaded.”
The law is settled that parties are bound by their pleadings and evidence led on unpleaded matters goes to no issue. In the same way unpleaded facts elicited in cross examination go to no issue. See OJOH V. Kamalu & 3 Ors. (2006) AFWLR (Pt. 297) 978 at 995 Paras. B-E Ratio 1. It is the contention of the Appellant’s Counsel that the facts of the land been Government land was accordingly pleaded; he referred to paragraphs 1 (c), (g), and 2 (a) of the Plaintiff’s reply to the 2nd Defendant’s statement of defence reflected on pages 117-118 of the printed record. A
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careful perusal of those paragraphs shows that there is no where in those paragraphs and the entire pleadings where the issue of Forest reserve is mentioned. In Odom v. PDP (Supra) it was held that:-
“Any evidence led by a party which is in conflict with the party’s pleadings goes to no issue and should either be discountenanced or expunge by the trial Court.”
It is the contention of the Appellant’s Counsel at paragraph 4.2.4 of their Brief that evidence elicited under cross examination can be relied on. The true position is evidence extracted or elicited by a party during cross examination from the other party’s witness, which is contrary to the facts pleaded by the said party cannot be relied upon by the party in question, unless the pleadings are amended. See the case of Anioke v. Anioke (2013) AFWLR (Pt. 658) 658 at 995 Ratio 4. The lower Court was therefore on a sound footing when it held at page 298 of the printed record thus:-
“I have examined the pleadings of both the Plaintiff and the 2nd Defendant and there is nowhere the issue of forest reserve is mentioned. It is only extracted in the course of
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cross-examination by learned Counsel to the Plaintiff. I therefore discountenance with the evidence so elicited, all submissions and statutory provisions cited thereto.”
The second issue is accordingly resolved in favour of the Respondent and against the Appellant.
Issue three (3) is:
“Whether the trial Court was right when after ruling on the admissibility of Exhibits K, K1, K2, K3, K4 and K5 turned around to hold in its Judgment that the documents were inadmissible.”
The printed record at page 218 shows that the Appellant applied to tender some photographs and Counsel to the 2nd Respondent objected. Arguments were taken by the lower Court. At page 295 the Court held that:-
“There was an objection raised by learned Counsel to the 2nd Defendant and in a considered bench ruling his objection was overruled and the photographs were accordingly admitted in evidence and marked as Exhibits K, K1, K2, K3 and K4 …Accordingly I hold that the photographs were wrongly admitted by the Court as plaintiff’s witness PW1 was not the proper person to tender the photographs although upon laying proper foundation he
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could by virtue of Section 83 (1) of the Evidence Act tender them. Having found out that neither the photographer nor proper foundation laid, the admitted photographs marked as Exhibits K, K1, K2, K3, K4 and K5 are hereby expunged from the records.”
From the decision of the Lower Court as reproduced above, the Court expunged the photographs on the ground that the photographer was not called as a witness. The trial Court has the competence to expunge any document earlier admitted in evidence where the document does not carry any probative value by virtue of the Evidence Act. In the instant case, the photographs were tendered without laying proper foundation by tendering their negatives. In the case of Justus Nwabuoku & 5 Ors. v. Francis Onowordi & 2 Ors. (Supra) it was held that:
“A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment. The trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier does
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not carry any probative value of the evidence Act in the light of the live issues before the Court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision.”
The Lower Court was therefore on a sound footing when it held at Page 294 of the transmitted record that:
“The proponent of the photograph must satisfy the Court that the photograph is an accurate portrayal of the scene or object captured… by meeting the requirements of Section 84 (2) of the Evidence Act.”
Issue three is therefore resolved in favour of the Respondents and against the Appellant.
Issue four (4) is:
“Whether in the context of this suit, the Trial Court was right when it held that since there were no replies to Exhibits R an S which were letters, the recipients were presumed to have no objection to the contents of same.”
For clarity purposes, Exhibits R and S contained at pages 107 and 108 of the printed record reads:-
Exhibit R:-
“ADAMAWA EMIRATE COUNCIL
13th January, 2016
The Hon. Commissioner for
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Land and Survey,
Adamawa State,
Yola.
Sir,
OWNERSHIP OF LAND ALONG YOLA-NGURORE ROAD
(GSYP44)
Adamawa Emirate Council wishes to formally notify you on its resolution to reclaim the ownership of an expanse of land along Yola-Ngurore road. The land which was surveyed as GS YP44 by your Ministry belongs to Adamawa Emirate Council and no compensation was effected by the Government in respect of the area. Evidently, GSYP44 is a land inherited by the Adamawa Emirate Council since the era of Modibbo Adama, the founder of Fombina Kingdom.
It is against this background that the Emirate Counsel resolved to use the land for its purposes and advise your Ministry to vacate the site please. It is hoped that the Council prayers will be accepted and implemented in the interest of both parties.
Thank you
Signed
Umaru Hammanjoda
Secretary
Adamawa Emirate Council”
Exhibit S also reads:-
“ADAMAWA EMIRATE COUNCIL
9th March, 2016
The Hon. Commissioner
Ministry of Land and Survey
Adamawa State.
LETTER OF PROTEST
Adamawa Emirate Council is the traditional owner of the land
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lying and situated along Yola Numan Road (YP44).
The Council is informed that the land was purportedly allocated to the public by your ministry in contravention to the law that allows traditional ownership of lands. Your singular act of allocating this land to the public without proper acquisition is wrong because no compensation was paid to the Council in respect of the land to warrant any change of ownership.
I am also anxious to inform you that Adamawa Emirate Council has also allocated some portions of the same land to certain individuals. This land is now a subject of conflict between individuals namely those with title from your ministry and the traditional owners. We have brought this matter to your attention before because we believe you will want to correct and find satisfactory solution to the issue, please refer to our previous correspondence.
Signed
UmaruHammanjoda
Secretary
Adamawa Emirate Council.”
Exhibits R and S as reproduced above were tendered through the 2nd Respondent. From their contents they were addressed to the Commissioner for Lands, Adamawa State who is the recipient of the said business
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letters and not the Appellant. But unfortunately, the Commissioner is not a party to the suit before the lower Court to enable him respond to the two letters. The lower Court was therefore speaking in vacuum when it held that it is incumbent on a recipient of a business letter to reply as a default to reply can be presumed that there are no objections; knowing fully well that the Commissioner for Lands to whom they were addressed was not before it. The lower Court was therefore in error in its holding at page 300 of the printed record. Issue four (4) is therefore resolved in favour of the Appellant and against the Respondent.
Issue five is:
“Whether the Trial Court was right when it placed reliance on Section 167 (d) of the Evidence Act, 2011 to hold that having failed to call the grantor or its official to testify, it could be concluded that the evidence of the grantor would be unfavourable to Exhibit E tendered.”
The holding of the lower Court which can be found at page 301 of the printed record is to the effect that the failure of the Appellant to call an official of the Adamawa State Ministry of Lands to testify in respect of
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Exhibit E (the title document of the Appellant) amounts to withholding of evidence. The law is settled that title to land may be proved by Production of document of title. See Odunze v. Nwosu (2007) AFWLR (Pt. 379) 1295 at 1303 Paras. B-D Ratio 9; Arum v. Nwobodo (2013) AFWLR (Pt. 688) 870 at 893 Paras.E-G Ratio 8 and Atundaolu v. Registered Trustees of O.I.M.C.S.C. Nig.And Overseas (2011) AFWLR (Pt. 597) 750 at 765 Paras.E-H Ratio 4. Exhibit E is the Certificate of Occupancy issued to the Appellant by the then Gongola State Government in respect of the disputed land. It was tendered through PW1 the MD of the Appellant (page 216) of the printed record. The exhibit emanating from the Ministry of Land and Survey, Yola was tendered and admitted without objection is the best evidence. In Osunbor v. Oshiomhole (2009) AFWLR (Pt. 463) 1366 at 1408 Paras. F-H Ratio 16 this Court held that:-
“The most reliable, if not the best evidence is documentary evidence. It is certainly more reliable than oral evidence. Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words
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from the vocal cord of man because they are neither transient nor subject to distortion and misinterpretation, but remain permanent and reliable through the ages. The documents bear eloquent testimony to what happened.”
It therefore follows that failure to call oral evidence in respect of Exhibit E does not amount to withholding of evidence contrary to Section 167 (d) of the Evidence Act, 2011. Issue five (5) is therefore resolved in favour of the Appellant and against the Respondent.
Issue six (6) is:
“Whether the Trial Court was right in dismissing the Plaintiff’s suit.”
The Plaintiff’s/Appellant’s claims in the Suit before the lower Court as contained at pages 7-8 of the printed record are for declaration of title to land. The Apex Court and indeed this Court have set out the five ways through which a party can prove title to land – Awodi v. Ajagbe (2009) AFWLR (Pt. 454) 1413 at 1438-9 Ratio 1. Among the five ways is the production of documents of title.
In the case of Mrs. Mulikatu Erinfolami v. Pius Oso (2013) AFWLR (Pt. 673) 1991 at 1999 Paras. A-D Ratio 2 this Court held that:-
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“A Plaintiff need not prove all the five ways to succeed in an action for title to land. He can succeed if he proves even one of the ways.”
From the pages of the printed record, the Plaintiff/Appellant chose to prove his title to the disputed land when he tendered:-
1) Certificate of Incorporation- Exhibit A
2) Receipt of payment for application- Exhibit B
3) Letter of Grant of Certificate of Occupancy- Exhibit C
4) Receipts of payments – Exhibit D1 to 5
5) Certificate of Occupancy- Exhibit E
6) Ground Rent Certificate- Exhibit F
7) Demand for Annual Ground Rent- Exhibit F1
8) Set of receipts – Exhibits G-G2
9) Application for clearance- Exhibits H1-2
These documents were admitted into evidence without any objection as shown at pages 215 to 217 of the printed record. Exhibit E which is the site plan and which accompanied Exhibit E has specifically identified the land claimed by the Appellant with precision. The site plan which is at page 316 of the printed record was shown to have been signed by the Surveyor General in May, 1991 and specified the land with its dimensions. In Addah v. Ubandawaki (2015)
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AFWLR (Pt. 775) 200 at 204 Ratio 7 it was held that:-
“The burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan, showing clearly the area which his claim relates…”
See also Bankole v. Adeyeye (2014) AFWLR (Pt. 721) 1570 at 1573 Paras. C-E Ratio 4. The lower Court was therefore in error when it dismissed the Appellant’s case. Issue six (6) is therefore resolved in favour of the Appellant and against the Respondent.
Although issues two (2) and three (3) are resolved in favour of the Respondent, having resolved issues one (1), four (4), five (5) and six (6) issues that are kernel in this Appeal in favour of the Appellant, the Appeal succeeds in part. The decision of the lower Court is hereby set aside. Parties to bear their respective costs.
CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Abdullahi Mahmud Bayero JCA.
I agree that the appeal be allowed.
However, I have this to say on issue 3. It is the
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law that evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. Alternatively any evidence legally inadmissible admitted by the trial Court must be disregarded while writing judgment even if the evidence was admitted by consent. See the following decisions of the Supreme Court; Olayinka Vs. State (2007) 9 NWLR (Pt. 1040) 561, Agbi Vs. Ogbeh (2006) 11 NWLR (Pt 990) 65 and the decision of this Court in Hyppolite Vs. Egharevba (1998) 11 NWLR (Pt. 575)598.
Photographs are secondary evidence. They become admissible only when the negatives are also tendered. However, in this age of digital photography where negatives are stored electronically, it becomes necessary for the photographer to be called to testify. See Musa Vs. State (2019) 1 SCNJ 543 at 567. In the instant case, the photographs were tendered without the negatives. There is no evidence that they are digital. Even if they are digital, the photographer was not called to testify. The Court below therefore rightly expunged the photographs (Exhibits K – K5).
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I therefore resolve issue 3 against the Appellant and in favour of the Respondent.
Issues 2 and 3 having been resolved in favour of the Respondents and issues 1, 4 – 6 in favour of the Appellant, the appeal succeeds in part.
The judgment of the Court below is set aside.
I abide by the order as to costs.
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Appearances:
P. Atsev Esq., with him, Comfort Ajibolaji Esq. For Appellant(s)
A. Omobolaji Esq. – for 1st Respondent.
Salihu Adamu Esq. – for 2nd Respondent For Respondent(s)