ALHAJI S. ADEYEMI OLOWOLARAMO & ORS v. MR. JULIUS CHINEDU UMECHUKWU(2002)

ALHAJI S. ADEYEMI OLOWOLARAMO & ORS v. MR. JULIUS CHINEDU UMECHUKWU

  2002)LCN/1242(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 25th day of June, 2002

CA/IL/37/2001

 

JUSTICES

MURITALA AREMU OKUNOLA   Justice of The Court of Appeal of Nigeria

PATRICK IBE AMAIZU   Justice of The Court of Appeal of Nigeria

WALTER SAMUEL NKANU ONNOGHEN   Justice of The Court of Appeal of Nigeria

Between

 

  1. ALHAJI S. ADEYEMI OLOWOLARAMO
    2. MALLAM ABDULKARIM OLADOJA
    3. MALLAM MALLAM JIMOH AJAGBE Appellant(s)

AND

  1. JULIUS CHINEDU UMECHUKWU Respondent(s)

 

ONNOGHEN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice J. A. Ibiwoye, of the High Court of Kwara State, sitting at Ilorin, in Suit No. KWS/176/96, delivered on 11th May, 2000, in which the learned trial Judge rejected the admission in evidence of three documents sought to be tendered by the appellants upon an objection thereto by learned Counsel for the respondent.
The facts of the case, include the following. By paragraph 16 of the amended statement of claim to be found at pages 3 to 6 of the record the appellants, as plaintiffs claim against the respondent as follows:
“16. WHEREOF the plaintiffs claim:
(i) A declaration that the plaintiffs are entitled to the right of occupancy over the piece or parcel of land, situate at behind Anglican Church, beside the new market and off new market road, Baboko Ilorin, measuring 4 plots in the proportions of 2 plots, plot and 1 plot to the 1st, 2nd and 3rd plaintiffs respectively.
(ii) A perpetual injunction restraining the defendant, his servants, agents or privies from further trespassing to the land.
(iii) N5,000.00 damage (Sic) for trespass.
(iv) A declaration that the approval for the grant of a right of occupancy No.11165 preparatory to issuance of certificate of occupancy, issued to the defendant by the Department of Lands, Surveys and Physical Development Military Administrator’s Office, Kwara State, is vitiated by fraud and is therefore, null and void and an order of court, setting aside the purported grant of a right of occupancy No. 11165 of 21st February, 1996.”
After the completion of pleadings the appellants opened their case in the course of which they sought to tender three purported titled documents, which were pleaded as receipts in evidence. This was opposed by learned Counsel for the respondent on the grounds that the documents are registrable instruments within the provisions of the Land Instruments Registration Edict No.6 of 1995, of Kwara State and that since they are not so registered they are inadmissible.
Secondly, that the documents were prepared by a non legal Practitioner for fees contrary to the provisions of the land Registration Law Cap. 83 and Land Instruments (Preparation) Law Cap. 82, Laws of Kwara State, 1994. The learned trial Judge sustained the objection in the ruling now on appeal before this court.
Dissatisfied with that ruling, the appellants appealed to this court, on three grounds out of which learned Counsel for the appellants, Salman Jawondo, Esq, in the appellant’s brief of argument filed on 2/11/01 and adopted in arguments on 8/5/02, formulated two issues for determination by the court. The issues are as follows:
“1. Whether or not, the learned trial Judge was right in rejecting the documents sought to be tendered as
receipts?
2. Was the learned trial Judge right, in placing reliance on his ruling in Suit No. KWS/144/92, Alhaji Lasisi Layi Olagunju v. Alhaji Yusuf Adeniran Delivered on 20/11/96 in rejecting the three documents sought to be tendered as receipts, without considering the arguments of and the authorities cited by the appellants’ counsel?”
In arguing issue No.1 learned Counsel for the appellants referred the court to paragraphs 5 and 6 of the amended statement of claim, where the three documents were pleaded as receipts and not as title documents. Learned Counsel then submitted that the pleading of the parties determine the issues in controversy between them and referred the court to the following authorities: Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386; (2000) 3 SC 1 at 8 – 9; Kano v. Oyelakin (1993) 3 NWLR (Pt.282) 399; Incar (Nig.) Ltd. v. Benson Trans. Ltd. (1975) 3 SC 117; Metal Const. (WA.) Ltd. v. Migliore (1979) 6 – 9 SC 163; Eke v. Okwaraniyia (2001) 12 NWLR (Pt. 726) 181; (2000) 4 SC 71 at 83; Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356, (2001) 7 SC 1 at 18.
Counsel then stated that PW3 is a son to the late Alhaji S. Arikewujo, who sold the land to the appellants. That PW3 identified the documents to be tendered as receipts issued by his late father. Learned Counsel then submitted that since the documents are pleaded as receipts and sought to be tendered as such and not as title documents or instruments relating to land, the said three documents are admissible as receipts. For this learned Counsel, cited and relied on Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783, (1985) 2 NSCC 789; Agwunedu v. Oguejofor (1994) 1 SCNJ 106 at 118; Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414, (1993) 1 SCNJ 77 at 112 etc.
Learned Counsel for the appellants, then submitted that the respondent’s counsel’s arguments which is anchored on the Land Instruments Registration Edict (Law) No.6, Laws of Kwara State, 1995 and Land Instruments (Preparation) Law Cap. 57, Laws of Northern Nigeria, 1963, now Cap. 82, Laws of Kwara State, 1994 and the authorities cited in support thereon are not relevant and finally urged the court to resolve the issue in favour of the appellants.
On his part, learned Counsel for the respondent J.O. Olatoke, Esq. in the respondent’s brief of argument deemed filed on 16/4/02 and adopted in arguments on 8/5/02 submitted that even though a document is pleaded as a receipt, the court is not precluded from examining it to know what it is all about. For this learned Counsel cited and relied on Uzoegwu v. Ifekandu (2001) 17 NWLR (Pt.741) 49 at 71-72. That having examined and found the documents are not receipts but instruments the learned trial Judge was right in rejecting their admission.
Learned Counsel further submitted that the contents of the three documents sought to be tendered satisfy all the requirements of an instrument as provided for in section 2 of the Land Instruments Registration Edict No.6 of 1995, as well as Section 15 thereof which provides that no instrument shall be pleaded or given in evidence in any court as effecting any land unless it shall have been registered in the proper office as specified in section 3 thereof. Counsel then referred to Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537, (1995) 2 SCNJ 158 at 164, in support of the same contention.
Learned Counsel also submitted that since under native law and custom a transaction of sale of land can be proved by calling those who witnessed the transaction to come and give evidence of same, the purported receipt sought to be tendered is not to prove payment under native law and custom but to prove title through the back door.
That the facts and issues raised and canvassed in the cases of Anyaegbunam v. Osaka (2000) 5 NWLR (Pt. 657) 386, (2000) 3 SC 1 at 8 – 9; Incar Nig. Ltd. v. Benson Trans. Ltd. (1975) 3 SC 117; Metal Const. (WA.) Ltd. v. Migliore (1975) 6 – 9 SC 163 are completely distinguishable from this case and are therefore irrelevant.
Learned Counsel further submitted that the cases of Okoye v. Dumez (Nig.) Ltd. supra and Obijuru v. Ozims; also supra cited by his learned friend are not relevant though distinguishable from the case in hand in that:
“(a) The case of Okoye v. Dumez (Nig.) Ltd. was on declaration of leasehold interest in land.
(b) A lease document not registered may be admitted as receipt to evidence payment of the rent and the nature of the equitable interest of the lease on the land. If the lease is less than five years duration in which case it need not be registered before it becomes admissible.
(c) In the case at hand the document vividly reveals that the interest in the land was transferred completely or totally conveyed.
(d) The cause of action in this case is not as to whether the plaintiff/appellant has paid the rent for the land, but who is the owner of the land in dispute, which is the purpose for which they tendered the document using the fact that they were pleaded as receipts as a cloak to seek the admission of the documents. There is no doubt that the import of tendering those documents is to show evidence of interest in land.
(e) The trial court rightly considered the contents of the documents and rightly held that they are instruments
relating to land rather than receipts.
(f) In fact, in Obijuru v. Ozims (supra), the deed of conveyance such as the one in this case was tendered and admitted because it was registered, see (1985) 4 SC (Pt.1) 142 at 145;
(g) The sale of land sought to be tendered being an instrument transferring title in land which was prepared by a non legal practitioner for reward is null, void and of no legal consequence by virtue of section 22(6) Legal Practitioners Act, Cap. 207 LFN (1990) see also Fasanya v. Adekoya (2000) 15 NWLR (Pt.689) 25.”
Learned Counsel then submitted as follows:
“It is my humble submission that whether the three documents are pleaded and identified as receipts is immaterial but the issue is whether by their contents they constitute “instrument” or not under the land instrument Registration Edict.”
Finally learned Counsel urged the court to resolve the issue against the appellants. Thereafter, the appeal was adjourned to today for judgment.
From the submissions of both learned Counsel in this appeal, it is clear that they agree on the fact that by the operation of Sections 2, 9(1), 12 and 15 of the Land Registration Edict No.6 of 1995, of Kwara State, an instrument transferring interest in land must satisfy certain conditions before being pleaded and admitted in evidence in the law courts. For instance section 15 thereof provides as follows:
“15. No instrument shall be pleaded or given in evidence in any court as effecting any land, unless the same shall have been registered in the proper office as specified in section 3.”
Both counsel equally agree in their respective briefs that the appellants pleaded the documents sought to be tendered as receipts of purchase of the parcels of land now in dispute between the parties – see paragraphs 5 and 6 of the amended statement of claim. There is also a consensus that the documents were tendered as receipts as duly pleaded by the appellants.
It is however, the appellants’ case that once the documents were so pleaded and tendered, they are admissible not as instruments of title to or affecting interest in land but as receipts of payment for interest in land simpliciter, whereas the gravamen of the respondent’s submission on the issue is as stated in paragraph 4.8 of the respondent’s brief to wit:
“4.8 It is my humble submission that whether the three documents are pleaded and identified as receipt is
immaterial, but the issue is whether by their contents they constitute “Instrument” or not under the land instrument Registration Edict.”
In other words, what the learned Counsel for the respondent is saying in effect is that it is irrelevant whether an unregistered registrable instrument is sought to be tendered as a receipt for payment of a purchase price for an interest in land or not it is inadmissible in evidence if it is not registered in accordance with the provisions of the relevant law. This position seems to be the same with that of the learned trial Judge who held thus, at pages 16 and 17 of the record being part of the ruling on appeal:
“After a careful consideration of the arguments of both counsels (sic) for and against the admissibility of the receipts sought to be tender (sic), I feel inclined to still hold to my view in my earlier ruling in the case of Alhaji Azeez Olagunju v. Alhaji Yusuf Adeniran Suit No. KWS/144/92, delivered on 20/11/96. In the light of this, the objection is sustained and the receipts sought to be tendered are hereby rejected and should be so marked.”
The above is the substance of the ruling now on appeal before this court. I must, however hasten to say that even though the learned trial Judge held himself bound by his earlier ruling in the case he cited, he failed to tell or state the facts in that case and his ruling thereon so as to enable this court follow his reasoning and conclusion.
That apart, this court is further handicapped by the fact that learned Counsel for the respondent, who is canvassing for support for the position of the learned trial Judge has equally not made available to this court a copy of the said ruling to avail this court an insight into the reasoning of the learned trial Judge on this issue which is of very important significance on the issue of admissibility of unregistered registrable instruments affecting interest in land particularly, when decided authorities right from West African Court of Appeal days clearly prove the other way. It must be noted that even though law may at times be considered to be conservative, it is never static, since it does its best to keep with developments in the society, if not engineering same.
However, from the ruling of the court quoted supra, it is very clear and I hereby, hold that the trial Judge found as a fact that the documents sought to be tendered as exhibits are receipts. The question then still remains whether the receipts are inadmissible being unregistered unregistrable instruments.
In the case of Ogunbambi v. Abowab (1951) 13 WACA 222, which was an action for damages for trespass in which the issue of title was raised, both parties traced their claim to title through the Oloto family being the original owners of the land. The plaintiff claimed by virtue of direct purchase from the Oloto family in 1929, by his predecessor in title while the defendant relied on a conveyance by the Oloto family in 1948. Learned Counsel for the defendant submitted that the defendant had a better title than the plaintiff and challenged the admissibility of a “purchase receipt” as any proof of title on the grounds that it was an instrument within the meaning of section 2 of the Land Registration Ordinance (Cap. 108) and had not been registered.
In its judgment the West African Court of Appeal held inter alia: that the purchase receipt, being an unregistered instrument, was not admissible to prove title, but was admissible as an acknowledgement of the payment of money. This principle of law has been followed by the courts of this country in very many cases right from the Supreme Court, including the following cases:
Akingbade v. Elemosho (1964) 1 All NLR 154; Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167; Reg. Trust of The Apostolic Faith Mission v. James (1987) 3 NWLR (Pt.61) 556; Adesanya v. Otuewu (1993) 1NWLR (Pt.270) 414; Agwunedu v. Onwumere (1994) 1NWLR (Pt.321) 375; Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt.4) 783; Usman v.  Garke (1999) 1 NWLR (Pt.587) 466; Alaya v. Akinduro (1998) 4 NWLR (Pt.545) 311; Alimi v. Obawole (1998) 6 NWLR (pt. 555) 591; Lawal v. Ejidike (1997) 2 NWLR (Pt.487) 319; Paye v. Gaji (1996) 5 NWLR (Pt.450) 589; Nnubia v.A.-G., Rivers State (1999) 9 NWLR (Pt.593) 82 etc, etc, etc.
From the decisions in the above cited authorities, it is now trite law that where a document evidences sale of land but from the proceedings the said document is tendered in evidence, not as an evidence of title, but simply to establish a fact which one of the parties has pleaded, then such a document does not qualify as an instrument as defined in the Land Instruments Registration Law, and is therefore admissible in evidence without being registered.
In the present action the documents sought to be tendered were pleaded as receipts of payment for the purchase of the land in dispute and were being tendered, as found by the learned trial Judge and agreed by learned Counsel for the respondent, as receipts, not as evidence in proof of title to land. That being the case, it is my considered opinion that the said receipts are admissible in evidence in proof of the facts pleaded. It is trite law that there is a difference between admissibility of a document and weight to be attached thereto. The arguments of learned Counsel for the respondent as regards the contents of the documents sought to be tendered becomes relevant, when the appellants seek to put to use the documents so admitted for a purpose other than that for which they were pleaded, tendered, and admitted. Until then, it is my view that the documents are admissible for the limited purpose allowed by law – as receipts of payment for the purchase of land.
Learned Counsel for the respondent has sought to distinguish this case from the authorities cited by learned Counsel for the appellants and relied upon in this judgment which distinctions are to my mind, without any difference. To say that in some of the cases the documents admitted were receipts for payment of rent, pledge or purchase of land is begging the issue. In my view a receipt is a receipt whether it was issued for rent or otherwise. That apart, in none of the authorities cited by learned Counsel for the respondent is it decided that an unregistered registerable instrument is inadmissible in evidence to prove payment of money in the transaction in issue.
That apart, the sub-issue as to whether the documents are admissible, since they were prepared by a non-legal practitioner contrary to law, as raised by learned counsel for the respondent does not arise in this case since the documents are tendered as receipts not as instruments affecting interest in land.
There is no law against non legal practitioners issuing receipts acknowledging payments of money I am yet to come across any.
Finally, its my considered view that this issue has merit and is hereby resolved in favour of the appellants.
The second and final issue for consideration – is whether the learned trial Judge was right in placing reliance on his ruling in Suit No. KWS/144/92; Alhaji Lasisi Layi Olagunju v. Alhaji Yusuf Adeniran, delivered on 20/11/96, in rejecting the three documents sought to be tendered as receipts without considering the arguments of and the authorities cited by the appellant’s counsel.
In arguing this issue, learned Counsel for the appellants submitted that it is duty of the trial court to consider and pronounce on all the issues canvassed by the parties before it which counsel referred to Katto v. CBN (1991) 9 NWLR (Pt. 214) 126, (1991) 12 SCNJ 1 at 26; United Spinners (Nig.) Ltd. v. Chartered Bank Ltd. (2001) 14 NWLR (Pt.732) 195 Sc. (2001) 7 SC 171 at 186; Brawal Shipping Nig. Ltd. v. F.I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt.678) 387, (2000) 6 SC 133 at 140. Applying these authorities to the case on appeal learned Counsel stated that the learned trial Judge did not consider all the issues raised by the appellants in his ruling on appeal, but merely stated that he was relying on his previous ruling on the matter without considering the effects of the authorities cited on that ruling. That the said ruling is not applicable to this case since this case involves the tendering of receipts not title documents. Submitting in the alternative learned counsel stated that the said ruling was per incuriam having regards to the Supreme Court decisions in Okoye v. Dumez (Nig.) Ltd. (Supra), Obijuru v. Ozims  (supra) etc, etc.
Finally learned Counsel submitted that the failure of the trial Judge to consider all the arguments canvassed and the authorities cited occassioned a miscarriage of justice as the documents were wrongfully rejected and excluded from the evidence before the court. He then urged the court to resolve the issue in favour of the appellants and allow the appeal.
In his reply learned Counsel for the respondent submitted that the learned trial Judge “dispassionately considered all the arguments of both counsel” before arriving at the decision.
That the cases cited by his learned friend on this issue, are not relevant to this case since the trial Judge did consider all the issues raised before it, in the ruling now on appeal. That the trial court was right in rejecting the documents being documents prepared by a public letter written for a fee not a legal practitioner as required by sections.5 and 6 of the Kwara State Land Instruments Registration Law which which makes the documents void and inadmissible. He then urged the court to resolve the issue against the appellants and dismiss the appeal.
I must point out from the onset that it is erroneous to submit that a void document is inadmissible as done by the learned counsel for the respondent in the issue under consideration. It is my considered view that admissibility of document and the weight to be attached to the said document are two different things which call for consideration of different principles of law. That is why I hold the view that a void document is not necessarily inadmissible in law. It is my view that for a document to be pronounced void by a court of law it must first and foremost be admitted in evidence to bring it legally before the court to be properly dealt with. So if that document is otherwise admissible the fact that it is void in law is not relevant to its admissibility.
That apart, when we say that a document is void we are talking of the legal effects of that document. In other words the probative effects of that document or the weight to be legally attached thereto.
This is very different from the issue whether that document is admissible. I had earlier stated that there is no law against a non legal practitioner issuing or writing a receipt in acknowledgment of payment which is the purpose for which the documents sought to be tendered were pleaded and submitted.
Going now to the substantive issue under consideration, it is clear from the record of proceedings in the lower court, including the ruling on appeal that the respondent objected to the admissibility of the three documents sought to be tendered as receipts on the grounds that the documents were prepared by a non legal practitioner for reward and also that they are instruments affecting interest on land which have not been registered. On the other hand, learned Counsel for the appellants, submitted that Edict No.6 of 1995, does not apply to the documents sought to be tendered; that the land Instruments (preparation) Law etc, etc, do not apply and the ruling of the trial Judge in Suit No. KWS/144/92, delivered on 20/11/96, does not constitute precedent to be followed in this case. The question then is: How did the learned trial Judge resolve the issues so raised in that objection? The answer is at pages 16 and 17 of the record of proceedings being the ruling of the court, which for the purpose of clarity, I reproduce in ex-tenso hereunder; to wit:
“RULING
On the 23rd day of November, 1999, PW3 was giving his evidence before this court, when Salman Lawando, Esq (Sic) learned Counsel for the plaintiffs sought to tender some receipts through him. Kayode Olatoke, Esq, learned Counsel for the defendant raised an objection to the admissibility of the receipts on the ground that the documents amount to an instrument pursuant to section 2 of the Land Instruments Registration of Kwara State.
He urged the court to revisit its decision in the case of Alhaji Azeez Layi Olagunju v. Alhaji Yusuf Adeniran Suit No. KWS/144/92, delivered on 20/11/96 and reject the documents.
Jawondo, Esq. replied that the case of Alhaji Azeez Olagunju is not applicable to this case and urged the court to overrule the objection.
After a careful consideration of the arguments of both counsels (sic) for and against the admissibility of the receipts sought to be tender (sic), I feel inclined to still hold to my view in my earlier ruling in the case of Alhaji Azeez Olagunju v. Alhaji Yusuf Adeniran Suit No. KWS/144/92, delivered on 20/11/96, in the light of this the objection is sustained and the receipts sought to be tendered are hereby rejected and should be so marked.
Sgd.
HON. JUSTICE J. A. IBIWOYE
JUDGE
15/5/2000.”
Emphasis supplied.
It must be pointed out that the above quoted ruling is a considered ruling, which was delivered after two months and almost three weeks of the submissions of both counsel. This is the ruling that learned Counsel for the respondent has submitted at paragraph 5.3 of the respondent’s brief at page 13 thereof as follows:
“5.3. The trial court dispassionately considered all the arguments of both counsel before arriving at its decision and the trial court held that it would still be inclined to hold unto its view in its earlier ruling in the case of Alhaji Azeez Olagunju v. Alhaji YusufAdeniran (supra)” Emphasis supplied by me.
I must confess my inability to see where the learned trial Judge “dispassionately considered all the arguments of both counsel” in the above reproduced considered ruling of the court. It may be learned Counsel for the respondent has a different copy of the ruling we are talking about from the one reproduced at pages 16 and 17 of the record of appeal.
Not only did the court fail to consider all the issues raised in the preliminary objection, it also failed to let us know the contents of his alleged decision in Suit No. KWS/144/92, delivered on 20/11/96, which he applied to the instant case. As stated earlier in this judgment this has robbed this court of the benefit of the learned trial Judge’s reasoning and conclusion in that matter.
A very disturbing aspect of the ruling on appeal has to do with the fact that the trial court’s attention was drawn by learned Counsel for the appellants particularly to the case of Okoye v. Dumex (Nig.) Ltd. (1985) 2 NSCC 780 at 781 and Obijuru v. Ozims (Supra) on the  issue of admissibility of unregistered registrable instruments during arguments, which the learned trial Judge never referred to nor did he consider them before coming to his conclusion in that ruling.
For instance in Okoye v. Dumez  (Nig.) Ltd. (1985) 1 NWLR (Pt.4) 783 one of the issues which the Supreme Court had to decide is:
“Whether a Land Instrument, which is not registered as required by the Land Instruments Registration Law is not admissible in evidence either as an instrument affecting Land or for any other purpose”
In dealing with the issue Bello, JSC (as he then was) at page 790 had these to say:
“I accept the submission of Chief Onyiuke that exhibits E and F, are instruments within the meaning of section 2 of the law and are registrable. I do not however agree with his contention of the legal effect and consequences of their non-registration having regard to the facts and circumstances of this case. It is trite law that, where a purchaser of land or a lessee is 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 the 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 to prove payment of purchase money or rent: Savage v. Sarrought (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 22; Fakoya v. St. Pauls Church, Shagamu (1966) 1 All NLR 74; Oni v. Arimoro (1973) 3 SC 163; Bucknor – Maclean v. Inlaks (1980)   8 – 11 SC 1 and Obijuru v. Ozims (1985) 2 NWLR (Pt. 6) 167 unreported yet.”  Emphasis supplied by me.
It is my considered view that in view of the citing of the above, legal authorities to the trial Judge by learned Counsel for the appellants, it becomes imperative that the court either applies them or where it finds them inapplicable, distinguish them, giving reasons for so doing. Not to consider them at all in a considered ruling is, to say the least, never done. It is trite law that by the rules of judicial precedent the trial Judge is bound by the decisions of this court and the Supreme Court on any particular issue or matter that comes before him for consideration except where such decisions are otherwise distinguishable from the facts of the case before him. Where a trial(sic) its decision, as in this case, its decision is said to have been made per incuriam and is subject to be set aside.
However, in Brawal Shipping Nig. Ltd. v. F.I. Onwadike Co. Ltd, (2000) 11 NWLR (Pt. 678) 387, (2000) 6 SC 133 at 140, the Supreme Court, per Uwaifo, JSC, stated the position of the law as follows:
“It is no longer in doubt that this court demand of and admonishes, the lower courts to pronounce as a general rule on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases including: Oyediran v. Anise 91970) 1 All NLR 317; Ojogbue v. Nnwubia (1972) 8 SC. 27; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 at 539; Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131 at 150, 151 – 152; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519; Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 142 failure to do so, may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial…”
It is my view that the learned trial Judge in the ruling before the court, did not consider any of the issues raised at all, let alone considering some and leaving others. It is not enough for a Judge to state “after a careful consideration of the arguments of both counsel”  I have come to so and so conclusion without demonstrating how he considered the arguments and how he arrived at the conclusions.
There is nothing magical about the expression quoted supra; the Judge has a duty to consider the issues and to resolve them by demonstrable process of reasoning.
The position of the law being what it is and applying it to the facts and circumstances of this case, it is my view that there are merits in the issue, under consideration which issue is hereby, resolved in favour of the appellants.
In conclusion, it is my considered opinion that there are merits in this appeal, which is accordingly, allowed with N5,000.00 cost to the appellants.
Appeal allowed.

OKUNOLA, J.C.A.: I have had the privilege, of reading in draft, the leading judgment, just read by my learned brother, Onnoghen, JCA. My learned brother, had succinctly summarised the facts of this case.
He had dealt with all the issues raised and canvassed by the learned Counsel to the parties. I agree with his reasoning and conclusion, that the appeal is meritorious and should be allowed.
I too allow the appeal.
I abide by the consequential orders made in the leading judgment, including the order made as to costs.

AMAIZU, J.C.A.: It does seem to me that, it has to be determined first, the purpose for which the documents are being tendered.
To answer the question, I refer to the relevant averment in the pleadings. Paragraph 6 thereof reads –
“The plaintiffs aver that the plaintiffs were given receipts for the purchase of the parcels or piece of land purchased and had the land handed over to them by late Alhaji S. Arikewuyo in the presence of witnesses in accordance with native law & custom. The plaintiffs shall find on the receipts”.
The evidence in support of this averment runs thus –
“PW 3 (contd.)     –     These are the receipts.
Jawondo:                   I seek to tender them.
Olatoke:                    We object because the documents amount to an instrument …”
In my respectful view, a receipt is an acknowledgement of something in writing especially money. It is not an instrument conveying interest in a land. But even if it is (which is not conceded) it is the law that a registrable interest which has not been registered, is admissible to prove equitable interest and payment of purchase money or rent. Dr. Joseph C. Okoye v. Dumez (Nig.) Ltd. & Or. (1985) 1 NWLR (Pt. 4) p. 783.
For the above reason and others ably marshalled out in the lead judgment of Onnoghen, JCA, I also allow the appeal.
I abide by the consequential orders made in the said lead judgment, including the order as to costs.

Appeal allowed.

 

Appearances

Salman Jawando, Esq.For Appellant

 

AND

J.O. Olakoke, Esq.For Respondent

 

Leave a Reply

Close Menu