B.C. IKECHOKWU & ORS. V. DR. L. O. OLISAKA
In The Court of Appeal of Nigeria
On Monday, the 14th day of April, 2003
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
I.C. PATS ACHOLONU Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
B.C. IKECHOKWU & 2 ORS. Appellant(s)
- L.O. OLISAKA Respondent(s)
S.A. OLAGUNJU, J.C.A, (Delivering the Leading Judgment): The appeal is from the Ruling of Emekwue, J., on admissibility of a document which was rejected by the learned trial judge on the ground other than the one raised by the counsel opposing the admission of the document giving rise, primarily, to the propriety of a court raising an issue suo motu and basing its decision on it without giving the parties the opportunity to address it on the point. The material facts from which the appeal arose can be summarized as hereunder.
In an action for declaration of title to land, perpetual injunction and damages the plaintiff, the respondent herein, in paragraph 7 of his amended statement of claim pleaded a Deed of Lease, he entered with the family of the Defendants which is repudiated by the Defendants in paragraph 8 of their amended statement of defence. At the trial, the plaintiff who testified as 1PW, did not produce the document during his examination-in-chief and during cross-examination of the witness learned counsel for the defendants sought to tender the document whereupon Learned Senior Advocate for the plaintiff objected to the admissibility of the document on the ground that the document is a photocopy and is neither a primary nor secondary evidence contending that under section 96 of the evidence Act documents must be proved by primary evidence.
In his Ruling, the learned trial judge expressed agreement with the submission of learned counsel for the defendants that the document sought to be tendered being secondary evidence of the original by virtue of section 95(b) of the Evidence Act its admissibility can be considered under section 97 of the Evidence Act, 1990. But he, nonetheless, sustained the objection to admissibility of the document on the ground that the document being clearly an instrument which must be registered under the Lands Instruments Registration Law, Cap. 72 Laws of Eastern Nigeria, applicable in Anambra State and not having been registered as enjoined by the law it cannot under S.15 of the said Law be pleaded or given in evidence in any court as affecting any land”. The document was therefore, rejected by the court as inadmissible.
Dissatisfied with the Ruling the defendants hereinafter called ‘the appellants, formulated two issues for determination from the two grounds of appeal filed with their Notice of Appeal. The two issues read:
“a. Whether the Learned Trial Court was right in basing its decision/ruling on an issue not canvassed before it and in respect of which the parties were not given the opportunity to further address it on the matter.
b. Was the Learned trial judge right in holding that an instrument must in all cases be registered before same could (be) pleaded or given in evidence.”
Learned Senior Advocate for the plaintiff, hereinafter called ‘the respondent’, recast the two issues formulated by the appellants. Issue One because, according to him, admissibility of the Deed of Lease is not an issue in this appeal and Issue Two for reason which I cannot fathom out from the argument of the Learned Senior Advocate. The two issues formulated for the respondent read:
“2.1 Whether the admissibility of the photocopy of the Deed of Lease which is a matter of law is an issue in this appeal.
IN THE ALTERNATIVE even if it is an issue whether the learned judge was right in holding that the lease agreement was inadmissible.
2.2. Whether the Deed of Lease is an instrument which cannot be pleaded or admitted in evidence unless it is registered.” Arguing Issue One in the Appellants’ Brief of Argument, learned counsel for the appellants contended that the objection to admissibility of a photocopy of the Deed of Lease pleaded by the respondent having been raised and contested by the parties on the ground that the document was neither a primary nor secondary evidence a ruling on the matter ought to be confined to that point only. Advancing the argument, he further contended that the parties having based their argument of the objection on the admissibility of photocopy of the Deed of Lease and on nothing more raising by the learned trial judge the effect on admissibility of that document of the Land Instruments Registration Law a point which was not raised in either the parties’ pleadings or in their argument of the objection was introducing a new issue gratuitously and coming to a decision on the new point raised.
He submitted that the approach is erroneous as it runs counter to the general principle that bars a court from raising suo motu a point not raised by either party and basing its decision thereon without giving the parties the opportunity to address it on the point, especially the party that may suffer as a result of the point so raised suo motu. In support of that proposition of the law he relied on dicta from the following cases: Usman v. Garke, (1999) 1 NWLR. (Part 587) 466, 470; AlIi v. Alesinloye, (2000) 6 NWLR (Part 660) 177, 189; Dr. Oshodi v, Eyifunmi, (2000) 13 NWLR, (Part 684) 298, 314; and Araka v. Ejiagwu, (2000) 15 NWLR (Part 692) 684, 700. On the consequence of violation of that principle he submitted that it renders the entire proceedings a nullity founding for support on the decision of this court in Okeke v. Okeke, (2000) 3 NWLR (Part 649) 506, 526.
Replying to the appellants’ argument adopting the recast version of Issue One, Learned Senior Advocate for the respondent premised his argument on two points. Firstly, on the fact that the learned trial judge did not specifically disagree with the plaintiff’s/appellant’s counsel in his reason for objecting to the admissibility of the photocopy of the Deed of Lease but he rather proffered his own reason for rejecting the document. Secondly,that the issue raised by the appellant in this appeal is not admissibility of the document which is at the centre of the debate at the trial court; rather, it is ‘whether the judge’ (of the court below) was right to base his ruling on an issue not canvassed before it (sic).
On the first point, the view of the learned trial judge on page 24 of the record is particularly instructive and settles the point. It reads:
“I agree with T.U. Oguji, Esquire, of counsel, that the document sought to be tendered is a secondary evidence of a private document pursuant to section 95(b) of the Evidence Act, 1990, it being a Photostat copy of the original. See Esso West Africa Inc. v. Y. Alli (1968) NMLR. 414. Being a secondary evidence, its admissibility can be considered under section 97 of the Evidence Act, 1990.”
If the learned trial judge agreed with the view of learned counsel for the respondent which is the very opposite of the stand taken by the Learned Senior Advocate on the point being agitated that is an implicit rejection of the view advocated by the Learned Senior Counsel. And it will be a wishful thinking to canvass the view so tactfully rejected as not being specifically contradicted or dissented from. It is beyond any peradventure that if the provision of section 15 of the Land Instruments Registration Law had not been introduced to sway the arguments the contention of learned counsel for the appellants would have decidedly prevailed going by the preference indicated by the learned trial judge for the version of the appellants’ argument in support of admissibility of the document.
The second point, i.e.whether admissibility of document is an issue in this appeal, is taken together with the body of reply of Learned Senior Advocate to Issue one in the recast version of that issue by the respondent which is formulated in the alternative but which must be separated into the preliminary and substantive arguments. On the preliminary premise on characterization of issue which the Learned Senior Advocate used as a springboard to leap over to the substantive argument, I cannot see any serious argument in the contention that Issue one as formulated by the appellants does not raise the question of admissibility of the Deed of Lease because its keynote is on the error by the learned trial judge in basing his decision on a point not canvassed before him. One may ask what was the matter that was not canvassed before the learned trial judge and how does that matter stand in relation to the question of admissibility?
The obvious answer is the knowledge of how section 15 of the Land Instruments Registration Law of the former Eastern Nigeria taken suo motu by the learned trial judge affects the competence of the Deed of Lease in question as an item of evidence. The document is rendered inadmissible by section 15 of that Law thus in the con of the matter being agitated admission or rejection of the document in evidence remains a live-issue in examination of whether the learned trial judge acted properly, that is to say, in conformity with the legal principles, when he invoked section 15 of the Land Instruments Registration Law to reject admission of the Deed of Lease without giving the appellants as the party adversely affected by the decision the benefit of a hearing on the matter.
On the relationship between the 1st ground of appeal and Issue one distilled from it which the Learned Senior Advocate makes the pivot of his argument that issue of admissibility is not raised in this appeal, it may perhaps, be arguable, prima facie, that Issue One is of incomplete predication by failing to state expressly the object of the complaint which is admissibility. But that hiatus is supplied by the first ground of appeal from which the issue is distilled, especially the 1st particular of errors thereof. Therefore, with respect to the Learned Senior Advocate, the argument that admissibility of document is not an issue in this appeal cannot be correct as admissibility of the Deed of Lease is part of the complaint in the first ground of appeal from which Issue one is formulated and on which the decision in application of section 15 of the Land Instruments Registration Law turned.
Spurred on by the erroneous premise that admissibility as an issue is not raised in this appeal the Learned Senior Advocate hopped over to the core of his argument with attack on the contention of learned counsel for the appellants that the decision of the learned trial judge was erroneous because it was based on an issue entirely different from the issue canvassed before him. The thrust of the attack by the Learned Senior Advocate is the word ‘issue’ with its phrasal correlation ‘joining issue’ the meaning of which he contended learned counsel for the appellants does not appreciate. He glided through the scholarly exposition of those expressions in Ehimare v. Emhonyon, (1985) 1 NWLR. (Part 2) 177, 183; and Overseas Construction Ltd. v. Creek Enterprises Ltd., (1985)3 NWLR (Part 13) 407, 418, for definition of the expressions ‘an issue’ and ‘to be at issue’ to show that what…learned counsel for the appellant called an issue between the parties was not….an issue in the pleadings as none of the parties raised the issue on the admissibility of the photocopy of the lease in the pleadings.
He contended that admissibility of the photocopy of the lease was not an issueagitating that it came extempore during the cross-examination of the plaintiff and concluded, therefore,that the decision of the learned trial judge is sacrosanct and cannot be faulted’ as section 15 of the Land Instruments Registration Law made it mandatory that to be admissible in evidence a document such as the respondent’s Deed of Lease must be registered.
On the argument that the appellants were not given the opportunity to address the court on the new point taken suo motu by the learned trial judge the Learned Senior Advocate submitted that the learned trial judge having ruled on what was argued before him and gave reason why he came to the decision he reached he was not bound to call upon the parties to address him as what is important is whether the decision was right and the assurance that there was no miscarriage of justice.
Having found to be flawed Learned Senior Advocate’s argument that the learned trial judge did not disagree with his submission and his argument that the appeal raises no issue of admissibility having also been found to be specious the remainder of his submissions in reply to the argument whether the learned trial judge acted rightly in raising a new issue without giving the parties the opportunity to address him is confined to the fact that the point which the learned trial judge took suo motu did not arise from the parties’ pleadings. The implication of the contention of the Learned Senior Advocate is that for an issue taken suo motu by the court to warrant calling upon the parties to address the court or be afforded the opportunity to be heard on the new point the question must arise from the parties’ pleadings. It follows that any matter arising outside the issue raised by the pleadings belongs to the range of matters arising extempore which are within the absolute discretion of the court to dispose of summarily with no duty upon the Judge to invite the parties to address him before coming to a decision upon the new point.
I find the proposition startling as running counter to all the leading authorities on the matter. The Learned Senior Advocate did not cite any authority for the legal proposition as the two Supreme Court’s decisions he cited, viz, Ehimare v. Emhonyon, supra, and Overseas Construction Ltd. v. Creek Enterprises Ltd.,supra, are, on the point under consideration, limited to the mechanics of joining issue on matters arising from pleadings. However, in the argument of the learned Senior Advocate one strand of misconception stands out glaringly and that is the scope of the word ‘issue’ which he confines to only any matter arising from pleadings. Thus applied to the principle of raising issue suo motu by the court the scope of the application of the principle is narrowed down to a microscopic range of matters on which issues are joined by the parties in their pleadings. There lies the fallacy.
In the application of the principle qualifying the court’s right to raise an issue suo motu the word ‘issue’ is used in the broad grammatical expression in the sense of ‘synonyms’ or ‘thesauruses’ of the word issue which include argument, concern, controversy, matter, matter of contention, point, point in question, problem, question; an important point or subject of debate; a matter of dispute between contending parties’, etc. See Collins Shorter Dictionary & Thesaurus, 1995 Edition, and Cassel Compact Dictionary, 1998 Edition. Applied in that broad sense the limitations upon the court raising a disputed matter of its own accord apply to every type of question on a controversial matter between the parties that may be raised by the court unsolicited by the parties regardless of whether such question arises as an issue on the parties’ pleadings.
This point is vindicated by the decisions in which the principle imposing restrictions on the court’s freedom to raise a point or an issue suo motu was examined without tying the application of the restrictions to only issues arising from pleadings. On this point, I find particularly apposite the Supreme Court’s decision in Ezeanya v. Okeke, (1995) 4 SCNJ. 60, in which this court was admonished for not keeping to the conditions for raising an issue suo motu, an occasion which afforded the apex court the opportunity to restate the principle which was recapitulated by Iguh, JSC., at page 88, as follows:
“With very great respect to the Court of Appeal, it cannot be over-emphasized and this court has repeatedly warned against decisions of court being founded on any ground in respect of which it has neither received argument from or on behalf of the litigants before it, nor even raised by or for the parties or either of them. See Shitta-Bey v. Federal Public Service Commission, (1981) 1 SC. 40 and Saude v. Abdullahi, (1989) 7 SCNJ, 216 at 229.”
To underscore the need for the courts to limit themselves to the issues raised by the parties and to give the parties hearing where it is necessary to raise a point suo motu as well as intimating the consequence of the breach of the principle articulated the learned Justice of the apex court reiterated, at page 89, that:
“On no account should a court raise a point suo motu, no matter how clear it may appear to be,and proceed to resolve it one way or the other without giving the parties an opportunity to be heard on the point, particularly the party that may suffer as a result of the point so raised suo motu. See Ugo v. Obiekwe, (1989) 1 NWLR. (Part 99) 566 at 581, Okafor v. Felix Nnaife (1972) 3 ECSLR. 261, Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR. (Part 39) 1, Adegoke v. Adibi, (1992) 5 NWLR (Part 242) 410 at 420, Atanda v. Lakanmi (1974) 3 S.C. 109, Ajao v. Ashiru (1973) 11 S.C. 23 etc. If it does so, it will be in breach of the parties’ right of fair hearing. Sheldon v. Bromfield Justice (1964) 2 Q.B. 573, 578 and Rex v. Hendon Justices, Exparte Gorchein (1973) 1 WLR. 1502.”
It is significant that the use of the phrase ‘on any ground’ in the first passage above and the expression ‘a point’ in the second passage lends support to the fact that the matter which a court may not take motu proprio without giving the parties the opportunity to address it on the point is not limited so long as the point touches on a controversy by the parties. The principle has been stated and applied in several other decisions and to diverse forms in which the courts of first instance and intermediate appellate courts have run foul of the behest. See Adeosun v. Babalola, (1972) 5 S.C. 292, 302; Olusanya v Olusanya, (1983) 1 SCNLR. 134, 139; Spasco Vehicle & Plant Hire Co. Ltd. v. Alraine (Nig.) Ltd., (1995) 9 SCNJ. 288, 299; Eigbejale v. Oke, (1996) 5 SCNJ. 49, 63-64; University of Calabar v. Dr. Okon J. Essien, (1996) 12 SCNJ 304, 326-328; Allied Bank of Nigeria Ltd. v. Akabueze, (1997) 6 SCNJ 116, 130 – 131; and Ude v. Chimbo, (1998) 10 SCNJ. 23, 37.
In none of these cases is any restriction suggested that only cases in which issues are joined on pleadings is the principle applicable that courts cannot take issues suo motu without affording the parties the opportunity to address the court on the point so taken suo motu. The object of the restrictions imposed by the principle would seem to be beneficial as designed to enhance the detachment of the court which as an umpire must,as far as possible, give parties to an action a complete freedom to conduct their case. Having evolved such checks and balances in order to elevate the neutrality of administration of justice described by Edmund Burke as ‘the cold neutrality of an impartial judge’ it will be a great disservice to clog the accomplishment with a specious red-herring camouflaged as a distinction which is being urged on behalf of the respondent. Such a ruse crumbles into smithereens by the force lent against the court taking a disputed point motu proprior by the constitutional right of fair hearing, the mainspring and fillip of the principle.
In the final analysis, since it is common ground that the learned trial judge of his own motion decided to invoke the provision of section 15 of the Land Instruments Registration Law to decide the controversy between the parties without giving them the opportunity to address him on the point he has by so doing violated the appellants’ right of fair hearing as the party who is adversely affected by the point taken suo motu by the learned trial judge. In the circumstances, I resolve Issue One in the Briefs of Argument of both parties against the respondent. The consequence follows, ineluctably, that breach of the appellants’ right of fair hearing renders invalid part of the proceedings of the court below in which section 15 of the Land Instruments Registration Law of Anambra State was considered without giving the appellants a hearing. It is null and void. See Adigun v. Attorney-General,, Oyo State, (1987) 1 NWLR. (Part 53) 678, 709; Yisi Nigeria Ltd. v. Trade Bank Plc., (1999) 1 NWLR. (Part 588) 646, 651 – 652; and Agbogu v. Adiche, (2003) 2 NWLR (Part 805) 509, 532 – 533. That will be enough to dispose of this appeal. But Issue Two in each of the Appellants’ and the Respondent’s Briefs of Argument is canvassing the nature of the Deed of Lease which rejection as evidence by the court below is the occasion for this appeal leading to the question being canvassed at large whether as the learned trial judge held the document is an instrument which by operation of section 15 of the Land Instruments Registration Law of Anambra State cannot be pleaded or received in evidence unless it is registered. That issue is open to objection on two grounds.
That issue is open to objection on two grounds.
Firstly, the question of whether the Deed of Lease is an ‘Instrument’ or a ‘Memorandum’ to bring the document within the exception created by the proviso to section 15 of the Land Instruments Registration Law is a matter that goes beyond the scope of this appeal as the nature of the Deed was not pleaded by the parties, raised or argued at the trial. Pronouncement on the document, ex cathedra, by the learned trial judge without the benefit of argument by the parties does not elevate the question to one canvassed at the trial. It is a new issue which this court has no jurisdiction to entertain without leave of the court first obtained before raising it. Therefore, it is incompetent as no leave was obtained before raising it. See Attorney-General, Oyo State v. Fairlakes Hotel Ltd., (1988) 5 NWLR. (Part 92) 1; Ojeme v. The Punch (Nigeria) Ltd., (1996) 1 NWLR. (Part 427) 701; and Okenwa v. Military Governor of Imo State, (1996) 6 NWLR. (Part 455) 394.”
Secondly, and more significantly, the conclusion which I have reached that the finding of the learned trial judge on the effect of section 15 of the Land Instruments Registration Law on the, Deed of Lease is void and of no effect has changed the focus of that issue which goes beyond the scope of this appeal that is confined to whether the rejection by the trial court of that document as a piece of evidence is justified on the principle of law. It seems to me that Issue Two is an invitation to this court to construct the very section of the Law that has been held to be wrongly applied with a view to testing whether the Deed of Lease, the subject of this appeal, belongs to the class of documents that are pleadable or admissible in evidence. It will be erroneous for this court to do that.
To set on examination of the correctness of the proceedings that have been pronounced void in Issue One will be scandalous as it will lead to contradiction of the appellate review exercise for having pronounced the proceedings to be a nullity there is no more jurisdiction vested in this court for a review of how the invalid proceedings were conducted, in particular to set out to interpret the legal effect of the self-same section of the Law which wrong application has led to the invalidation of the proceedings. That will be an exercise in futility as any review of a void decision is itself void: See NALSA & Team Associates v. NNPC, (1996) 3 SCNJ 50, 60 – 61; and Ejike v. Ifeadi, (1998) 6 SCNJ. 87, 101. For these reasons Issue Two in each of the Briefs of Argument of the Appellants and the Respondent is incompetent or, at best, superfluous.
In conclusion let me recapitulate that this appeal rests on breach of the right of fair hearing of the appellants by the learned trial judge who gratuitously raised section 15 of the Land Instruments Registration Law to arrive at a decision in favour of the respondent without giving the parties the opportunity to address him on the point. In administration of justice such a conduct is frowned upon and is decried as doing ‘cloistered justice’. See, in this regard, Onibudo v. Akibu, (1982) All NLR. 207; and Damina v. The State, (1995) 9 SCNJ. 254, 268 – 270. From the point of view of the party who is adversely affected, here the appellants, it is a breach of the right of fair hearing guaranteed to the citizenry by section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
As an inflexible rule, breach of the right renders any proceedings conducted in consequence of the breach to be invalid. That being the case, this appeal rests within that limited compass and renders the arguments canvassed in Issue Two to be off-beat and sterile.
In the result the appeal succeeds and it is allowed. The concluding part of the Ruling of Emekwue, J., delivered on 16/3/98, where he invoked, unsolicited, section 15 of the Land Instruments Registration Law is declared null and void and I set aside that part of the Ruling. However, as it is the finding of the learned trial judge in the same Ruling that the Deed of Lease is admissible in evidence and could be considered under section 97 of the Evidence Act, a finding arrived at after argument on the point by the learned counsel and against which neither of the parties appealed, it is hereby ordered that the document, ‘a photocopy of a Deed of Lease made on the 12th day of April, 1977, between the Umur,u Ogbunamili family of Obosi …..and Dr. Louis Okoye Olisaka’, shall be received in evidence by the learned trial judge. I award N5,000 costs against the respondent.
MAHMUD MOHAMMED, J.C.A: The circumstances that gave birth to this interlocutory appeal arose in the course of the hearing of Suit No. 0/322/93 at the court below between the parties to this appeal. In the course of hearing on 17-2-98, learned counsel to the defendant sought to tender through the plaintiffs witness, a document which turned out to be a photocopy of a Deed of Lease which the witness had testified to be a copy of the agreement which he entered into with other parties. Learned Senior Counsel to the plaintiff promptly objected to the admissibility of the document mainly on the ground that the document was a photocopy and was neither a primary nor secondary evidence as required under Section 96 of the Evidence Act. Learned Counsel to the defendants in his reaction to the objection maintained that the document sought to be tendered in evidence was admissible under Section 97(1) (a) (i) and 97(2) (a) of the Evidence Act.
In his ruling on the objection, the learned trial judge while agreeing with the learned counsel to the defendants that the document sought to be tendered in evidence was admissible under Section 97 of the Evidence Act, suddenly turned round and rejected the document in evidence. Part of the ruling of the trial court reads:-
“However, and as earlier stated, this document is an instrument which must be registered before it can either be pleaded or given in evidence. I have examined the document and there is no indication that it is so registered. It is therefore not to be pleaded nor given in evidence. Objection to its admissibility in this suit is hereby sustained. The document is hereby rejected and marked accordingly. ”
It is quite plain from the above ruling of the learned trial judge that he arrived at two distinct decisions on the objection raised to the admissibility of the Deed of Lease. One decision was that the document could be admitted in evidence under Section 97 of the Evidence Act while the other decision was that the document was not admissible under Section 15 of the Land Instrument Registration Law. Certainly this conduct of the learned trial judge is not supported by law. This is because while the parties before the learned trial judge could be said to have been given a hearing in respect of his decision that the document sought to be tendered in evidence was admissible under Section 97 of the Evidence Act, the same assertions can not be made in respect of the decision of the learned trial judge rejecting the document under Section 15 of the Land Instrument Registration Law. Therefore the complaint of the defendants now appellants in this appeal that they were denied fair hearing by the court below is quite justified as rightly found in the leading judgment of my learned brother Olagunju .ICA in this appeal with which I entirely agree. See Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167 and Ore v. Falade (1995) 5 NWLR (Pt. 396) 385 at 408.
In the result, I also allow the appeal and abide by the orders made in the leading judgment including the order on costs.
IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A: I have read the judgment in draft of my learned brother Olagunju, JCA and I agree with him. I have nothing more to add. I abide by the consequential orders made therein.
T.U. Oguji, Esq.,For Appellant
Senator N.N. Anah, SAN.,
Mrs. C.N. Abiamaka;For Respondent