CHIEF (MRS) T. A. ADEGEBO & ANOR V. OTUNBA BABATUNDE OWOKALU (2013)

CHIEF (MRS) T. A. ADEGEBO & ANOR V. OTUNBA BABATUNDE OWOKALU

(2013)LCN/6241(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2013

CA/I/267/10

JUSTICES:

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF (MRS) T. A. ADEGEBO
2. MR. BABATUNDE ADEGEBO
(Administrix and Administrator of
Late Engineer Tony Adegebo) – Appellant(s)

AND

OTUNBA BABATUNDE OWOKALU – Respondent(s)

RATIO

THE POSITION OF THE LAW IN EXPUNGING ALREADY ADMITTED EXHIBIT

The Apex Court has clarified the position of the law in expunging already admitted exhibit in the case of NWOSU V. UDEAJA (1990) 1 NWLR (PT. 125) 188 at 210-211 F-A. His Lordship Agbaje, JSC held thus:
“It must be pointed out that the rulings of the learned trial judge admitting the exhibits in evidence are decisions or orders of that court. And it has been said in OBEINONURE V. ERINOSHO (1966) 1 ALL NLR 250 that the inherent jurisdiction of a court to set aside its judgment or order is limited to judgments or orders which are nullities. See also OGBU V. URUM (1981) 4 SC 1. PER UWA, J.C.A.

THE POWER OF THE APPELLATE COURT TO EVALUATE DOCUMENTARY EVIDENCE BEFORE IT

The Apex Court in IWUOHA V. NIPOST (2003) 4 S.C. (PT. 11) 37 at 54, His Lordship Tobi, JSC in respect of the appellate court’s power to evaluate documentary evidence held thus:
“I should say that evaluation of a document is not within the exclusive preserve of the trial judge. Both the trial judge and the appellate judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate judge does not see, he sees like the trial judge, the document as exhibit. Therefore, where the finding of a trial judge on a documentary evidence is perverse, an appellate judge will easily see the perversion, and employ his appellate power to correct it.” (Underlined mine for emphasis.). PER UWA, J.C.A.

WHETHER OR NOT A DOCUMENT THAT IS INADMISSIBLE FOR A PARTICULAR PURPOSE CAN BE ADMISSIBLE FOR ANOTHER PURPOSE

However, it has to be stressed that a document that is inadmissible for a particular purpose can be admissible for another purpose. With respect to a registrable instrument touching land, it is true that owing to the mandatory provision of the Land Instruments Registration Law, a registrable instrument which has not been registered cannot be given in evidence. However where such an unregistered instrument is tendered not to prove title, but to prove purchase or equitable interest, the unregistered instrument is admissible to prove the purchase or equitable interest.
In this case, Exhibit D a Deed of Assignment, if nothing else, proved an equitable interest.

CHIDI NWAOMA UWA, J.C.A., (Delivering the Leading Judgment): The Appellants were the Plaintiffs in Suit No. I/763/2005 in the Oyo State High Court, at Ibadan Judicial Division, presided over by M. O. Olagunju, J, on 28th day of June, 2010. In the trial court the plaintiffs claimed against the Defendant as follows:
“1. Possession of that piece or parcel of land with building thereon lying, situate and being at No. 29, (also called Plot A1, Housing Corporation Estate, Old Bodija, Ibadan) Adeyi Avenue, Old Bodija Estate,
Ibadan now illegally and unlawfully occupied by the Defendant or any other person or persons deriving title from him.
2. Twenty Million Naira (N20,000,000.00) general damages for the wrongful occupation of said building without the permission and authority of the Plaintiffs or the lawful use of the said building. ”
At the close of trial, judgment was given against the Plaintiffs. Dissatisfied with the judgment the Plaintiffs appealed vide their Notice of Appeal containing five (5) grounds of appeal from which four (4) issues were formulated for determination. They are:
ISSUE ONE – Based on grounds one and two.
“Whether the Appellants claims were Statute Barred by virtue of the provisions of Section 4(1) of the Limitation Law of Oyo State CAP 76 Laws of Oyo State 2000.
ISSUE 2 – Based on Ground 3
Whether the learned trial judge was correct in expunging Exhibit D from the record of the proceedings.
ISSUE 3 – Based on Ground 4
Whether the learned trial judge was correct in holding that Exhibit C did not establish the payment of the purchase price by late Engineer Tony Adegebo.
ISSUE 4 – Based on Ground 5
Whether the learned trial judge was correct in holding that Exhibit E has no evidential value.”
On the Respondent’s part, the learned Counsel to the Respondent, conceded the Appellants’ first issue and thereafter formulated a sole issue for the determination of the Appeal. The issue is:
“Whether the trial court properly appraised and ascribed probative value to the evidence presented by the parties and made necessary findings of fact and applied the fact to the law?”
In arguing the appeal, the learned Counsel to the Appellants, A. R. Daramola adopted and relied on his brief dated 20th October, 2010 filed the same day and his reply brief dated 31st March, 2011 filed on 1/4/11, in urging us to allow the appeal and set aside the judgment of the lower court. In his submissions, a cause of action was defined as the total sum of facts and incidents which the Plaintiff needs to succeed in his claims and that a Plaintiff may have a reasonable cause of action but his right of action may be limited by law or statute. In the trial court, while the Defendant made out that the action of the Plaintiffs was statute barred by virtue of S.4(1) of the Oyo State Limitation Law CAP 76, Laws of Oyo State, 2000, the Plaintiffs insisted that from when the cause of action arose, the action was not statute bared and relied on various provisions of the Limitation Law as well as a plethora of legal authorities and their pleadings before the court in support. The Respondent conceded the Appellants’ first issue one and submitted that in determining whether an action is statute bared, the court must take into account the writ of summons and the statement of claim. The learned Counsel to the Respondent faulted the judgment of the trial court in respect of this issue in that the trial court relied on the admission of the paragraphs of the Statement of defence in the Amended Reply to the Statement of Defence which it ought not to have relied upon.
The Appellants’ second issue is as to whether the learned trial judge was correct in expunging Exhibit D from the record of proceedings. Exhibit D, it was submitted, was tendered without objection, it is an agreement between E, A. Abiodun the sub-lesee in Exhibit A and was executed by Abiodun Adesanya and late Engineer Adegebo. After the admission of Exhibit D, the learned trial judge expunged same for the reason that it is a document affecting land which needed to be registered before it could be pleaded and tendered in evidence, and that it needed to be expunged as it was not registered.
The Appellants’ third issue is as to whether Exhibit C did not establish the payment of the purchase price by late Engineer Tony Adegebo. Exhibit C is a fetter from the firm of Layi Asade to the branch Manager of Femi & Co., of which late Engineer Adegebo was copied. It was headed: sale of uncompleted building on Plot A1 along Adeyi Avenue Bodija Estate Ibadan. It was submitted that the Respondent testified that he personally paid N150,000.00 (One hundred and fifty thousand Naira) to Layi Asade his agent. It was argued that if this is the true position, reference should have been made in Exhibit C of Layi Asade as the receiver of the money paid. Also it was submitted that no receipt was tendered for direct payment to the agent, failing which he could not rightly say the late Engineer Tony Adegebo acted for him and that the trial court was wrong to have held that the late Engineer Adegebo acted on behalf of the Respondent. We were urged to hold that Exhibit C is a receipt for the payment made by the late Engineer Tony Adegebo and thus admissible.
The Appellants’ fourth issue is as to whether the learned trial judge was correct in holding that Exhibit E has no evidential value. Exhibit E is the compilation of the materials used in building the house on the land in dispute, as pleaded in paragraphs 12 and 16 of the amended statement of claim. It was submitted that evidence was led to prove same and that there was no objection as to Exhibit E being tendered, reliance was placed on the evidence of the PW1 and pff2 who testified that the materials were used to build the house in dispute. Contrary to the view of the trial court, we were urged to hold that Exhibit E has evidential value.
It was argued that there is no evidence to show that the Respondent paid the purchase price of N150,000.00 through Engineer Tony Adegebo. We were urged to hold that the contents of Exhibit C could only have been made to the person who made the payment. Further, that Exhibits A and B were sent to the late Engineer Tony Adegebo to confirm the statement in Exhibit C that the original documents would be sent to him whenever he collected them.
It was submitted that no letter or receipt of payment was tendered in the trial court to challenge the contents of Exhibit C. We were urged to hold that Exhibit C if read with Exhibits A and B shows that it referred to late Engineer Tony Adegebo,and has evidential value as proof of the construction of the building by the late Engineer Tony Adegebo.
The learned Counsel to the Respondent Akeem Agbaje Esq. appearing with Clifford Anuge and Abiola Awojobi (Miss) in response adopted and relied on his brief dated 10/1/11, filed on 17/1/11 deemed filed on 30/3/11 in which he conceded the Appellants’ issue one, to the effect that in determining whether an action is statute barred, the court takes into account only the writ of summons and the statement of claim.
Whereas, the trial judge in its judgment relied on the admission of the paragraphs of the statement of defence in the amended reply to the statement of defence which the trial court ought not to have done. He proffered argument in response to the Appellants’ issues 2, 3 and 4 in urging us to dismiss the appeal on a sole issue formulated therefrom on behalf of the Respondent, that is: Whether the trial court properly appraised and ascribed probative value to the evidence presented by the parties and made necessary findings of fact and applied the fact to the law? It was the contention of the learned Counsel to the Respondent that the Appellants’ issues 2, 3 and 4 challenged the evaluation of evidence by the trial court which is the primary duty of the trial court, which would only be interfered with if found to be perverse, unreasonable or not supported by the evidence adduced, see, OBUN V. EBU (2006) FWLR (PT. 327) P.419 at 453 and ANYANWU V. UZOAWUKA (2009) All FWLR (Pt. 499) P.411 at 426.
The Respondent identified the crux of the Appellants’ case as:
(1) Whether late Engineer Tony Adegebo bought the property for himself; and
(2) Whether the Respondent began to lay claim to the property after his death.
It was submitted that it was the duty of the Appellants to prove their case, they must lead evidence in support of their pleadings. It was the contention of the learned Counsel to the Respondent that where a party tenders an unregistered land document it is not automatic that it creates an equitable interest, there must also be evidence of possession for an equitable interest to be created and for the document to be admissible as evidence of payment.
It was argued that the late Engineer Adegebo never claimed possession or ownership of the property in dispute in his life time and therefore the Appellants cannot claim or acquire any right which the late Engineer Adegebo never had.
Further, it was submitted that the Appellants needed to prove that late Engineer Adegebo paid the purchase price. It was submitted that while Exhibit C tendered by the Appellants and the evidence of the PW1 gave the amount paid as N150,000.00. Exhibit D gave the purchase price as N100,000.00. Exhibit C was argued to have damaged any evidential value Exhibit D might have had to the Appellants, as well as the evidence of the DW2.
Exhibit E, it was submitted, did not make any reference to the property in dispute nor its ownership, it only showed that materials were bought, not for or by whom. We were urged not to disturb the finding of the learned trial judge as it is not perverse, see OKWEJIMINOR VS. GBAKEJI (2008) ALL FWLR (PT. 409) p.405 at 434.
In the Appellants’ reply brief it was submitted that the Respondent only proffered argument in respect of evaluation of facts whereas the Appellants’ issues 2, 3 and 4 raised in the Appellants’ brief dealt with interpretation of Exhibits D, C and E which are not on appraisal of evidence as argued by the Respondent but, on the correct interpretation of the exhibits.
Further, it was argued that the sole issue raised by the Respondent did not adequately answer material facts contained in the Appellants’ brief, we were urged to discountenance the Respondent’s submissions. Also, that the Respondent’s brief did not answer the issues raised in the Appellants’ brief and it was contended that the Respondent’s brief was full of repetitions which made it difficult to grasp.
The Appellants’ issue one was conceded by the learned Counsel to the Respondent when the appeal was argued as well as in his submissions in the Respondent’s brief, adopted and relied upon in arguing this appeal. The Appellants’ first issue is therefore resolved in their favour against the Respondent. That leaves us with the Appellants’ issues 2, 3 and 4.
From the issues formulated by the parties, as rightly argued by the learned Counsel to the Appellants the sole issue formulated by the learned Counsel to the Respondent did not address or cover the Appellants’ second issue as to whether the trial judge was correct in expunging Exhibit D from the record of the proceedings. I would resolve the issues as formulated by the Appellants as they are more comprehensive. In respect of issue two, the learned trial judge expunged Exhibit D from the records of proceedings, the reason given being that it is a deed of assignment, a document affecting land which needed to be registered before it could be pleaded and tendered in evidence which was argued to be liable to be expunged not having been registered. At page 83 of the printed records the learned trial judge held thus:
“In this case Exhibit D is a document affecting land which needed to be registered before it can be pleaded and tendered in evidence. It is liable to be expunged if it is tendered in evidence without being registered. Counsel for the Plaintiffs argued that Exhibit D was tendered to prove payment and to show that the late Adegebo acquired an equitable title. That cannot be correct because the same Plaintiffs tendered Exhibit C to show that the late Adegebo paid for the property in dispute. What is more the figures in exhibits C and D are different, Exhibit C states that N150,000 was paid while exhibit D states that N100,000 was the consideration for the assignment. It is therefore my considered view that exhibit D was tendered to prove the purported title of the late Adegebo to the land in dispute. Accordingly exhibit D is hereby expunged. See IBRAHIM VS. OSUNDE (2003) 2 NWLR PT.804, 247 at 261-262.”
Exhibit D was expunged as having been tendered in contravention of Section 2 Lands Instrument Registration Law Cap. 70 Laws of Oyo State, 2000, that requires the registration of any instrument affecting land in the State.
The Apex Court has clarified the position of the law in expunging already admitted exhibit in the case of NWOSU V. UDEAJA (1990) 1 NWLR (PT. 125) 188 at 210-211 F-A. His Lordship Agbaje, JSC held thus:
“It must be pointed out that the rulings of the learned trial judge admitting the exhibits in evidence are decisions or orders of that court. And it has been said in OBEINONURE V. ERINOSHO (1966) 1 ALL NLR 250 that the inherent jurisdiction of a court to set aside its judgment or order is limited to judgments or orders which are nullities. See also OGBU V. URUM (1981) 4 SC 1. There is no question of the ruling of the learned trial judge admitting all the various exhibits in evidence being a nullity. So, the question of the learned trial judge setting aside that decision or ruling for that reason does not arise. So the learned trial judge could not set aside that decision or ruling. So all the exhibits which the learned trial judge had previously admitted in evidence in this case should have been considered by him in coming to a decision in this case. In other words the weight to be attached to each of the exhibits ought to have been considered by him.”
Similarly, His Lordship Nnaemeka-Agu JSC at page 219, Paras C-D in Udeaja’s case similarly held thus:
“I very much doubt the propriety of the procedure whereby a judge admits some judgments as exhibits and later turns round to reject them as inadmissible. This procedure has not the support of decided cases, unless, of course the original decision to admit them was null and void. Having admitted them he ought to have concentrated on their cogency. ”
In this case, Exhibit D which had been admitted in evidence (whether right or wrong) should have been considered along with other documentary evidence in the case. The weight to be attached to the document would be a different thing. In my humble but considered view, I am of the opinion that the learned trial judge was wrong to have expunged Exhibit D which had been admitted in evidence; he was incompetent to set aside the ruling admitting Exhibit D in evidence. The learned trial judge ought to have considered Exhibit D, previously admitted in evidence and then decide on what weight to be attached to it or otherwise. See, AGAGU v. DAWODU (1990) 7 NWLR (PT.160) 56 at 67, following the Apex Court’s decision in NWOSU V. UDEAJA (SUPRA) this Court, Kolawole, J.C.A. held thus:
“I am therefore firmly of the view that the learned judge erred in law in expunging all the exhibits which had earlier been admitted in evidence as he was incompetent to set aside the ruling admitting those exhibits in evidence.
In my judgment, the learned trial judge should have considered Exhibits A, B and C which he had previously admitted in evidence in this case.”
In the instant case, the learned trial judge was wrong in expunging Exhibit D which he had earlier admitted in evidence as he was incompetent to set aside the ruling admitting those exhibits in evidence. Exhibit D ought to have been considered.
I have held that Exhibit D having earlier been admitted in evidence by the learned trial judge, he could not review the decision by expunging it from the proceedings of the case but, the reasons for expunging Exhibit D was given by the learned trial judge, pages 28-29 of the printed records, earlier reproduced in this judgment, which touches on the weight to be attached to the document. Exhibit D is a deed of assignment a document affecting land which fails within the meaning and interpretation of Section 2 of the Lands Instrument Registration Laws of Oyo State, to the effect that a document affecting land needed to be registered before it could be pleaded and tendered in evidence, which the learned trial judge realized after the document had been tendered and admitted in evidence.
Paragraphs 7 and 8 of the Appellants’ amended statement of claim relied upon by the Appellants to show that Exhibit D was pleaded and not responded to by the Respondent, shows that Exhibit D was not yet registered as at the time Engineer Tony Adegebo died. The Exhibit D was made preparatory to its registration, it was never registered and the Appellants have not made out that it was.
At this stage, the question is: would Exhibit D have made a difference in the outcome of the Plaintiffs’ case? The Appellants apart from relying on Exhibit D as it is, to prove that late Engineer Adegebo bought and paid for the property in dispute, they were duty bound through their pleadings and evidence to prove that the late Engineer Adegebo bought and paid for the property in dispute and that the Respondent did not lay claim to it during the life-time of Engineer Adegebo. Evidence must be fed to prove same as made out by the Appellants as Plaintiffs. In paragraphs 8 and 9 of the amended statement of claim. Exhibit D was pleaded and nothing more, Paragraph 7 pleaded agreement to pay a reasonable consideration to assign and nothing more.
Again, the Appellants did not claim to have been in possession of the property in dispute before Engineer Adegebo died. Exhibit D, as rightly held by the learned trial judge was tendered to show that late Engineer Adegebo acquired equitable right over the properly but, being a registrable instrument under Section 2 of the Lands Instrument Registration Law Cap 70 Laws of Oyo State, 2000, which was not registered, it had no evidential value. It is noteworthy that Exhibit D was not dated.
The learned Counsel to the Appellants at page 7, top paragraph of his brief also submitted, in agreement with the Respondent’s position that an agreement to assign is admissible to show equitable right which could become a legal right upon completion of other formalities. This is an admission that a legal right would materialize only on completion of formalities of assignment. In this case the formalities had not been completed.
The Appellants’ third issue is whether the trial judge was correct in holding that Exhibit C did not establish the payment of the purchase price by late Engineer Tony Adegebo. Exhibit C was tendered by the 2nd Appellant (PW1) at pages 13 to 14 of the Record of Appeal to prove payment of the purchase price by late Engineer Adegebo. The amount in Exhibit C is N150,000.00 as the purchase price. Whereas, the amount in Exhibit D which the Appellants complained was wrongly expunged by the trial court, which they were relying on to also prove purchase of the property in dispute, had the amount for the purchase as N100,000.00. These two amounts are at variance. On the face of Exhibit C there is nothing to show that it was late Adegebo that paid for the disputed property. The Appellants were the Plaintiffs who made out that their late father paid for the property in dispute not on behalf of the Respondent or as his representative but for himself, it was then up to the Plaintiffs in the trial court to prove their assertion or claim. The Plaintiffs needed to prove that their late father Engineer Adegebo paid for the property in dispute, it is not the Respondent to prove the contrary. I agree with the learned trial judge’s view at Pages 81-82 of the records that the Plaintiffs needed to prove that their father paid the purchase price for himself and ought to have called Layi Asade Enterprises the authors of Exhibit C through their Managing Director J. L. Ojo to testify on their behalf as well as E. A. Abiodun the Assignor. A copy of Exhibit C sent to late Engineer Adegebo is not enough to infer that he paid the price of the property in question for himself and I so hold.
The learned trial judge’s holding in respect of Exhibit C cannot be faulted, I affirm same.
The Appellants’ fourth issue is as to whether the trial judge was correct in holding that Exhibit E has no evidential value. Exhibit E is a compilation of building materials. The Appellants made out that the building materials were purchased and used in the construction of the property in dispute. The 2nd Appellant is the son of the late Engineer Adegebo who was said to have also worked at the site as an Engineer.
A look at Exhibit E, a list of building materials, dates, quantity and various amounts listed, (a bill of quantity in building terminology), headed “House on 29, Adeyi Avenue, Bodija Estate, Ibadan” and nothing more. It does not show who bought it, or paid for it for himself or another. It does not indicate who owns the property on the Exhibit. There is no connection between Exhibit E and the claim of the Appellants that the late Engineer Adegebo bought the building materials with which he built the property for himself, with his son, 2nd Appellant as having worked at the site. Even if he did work at the site it conferred no entitlement, he could have been hired by his late father, the Respondent or anybody else, The learned trial judge at page 84 of the records,was therefore right in holding that, Exhibit ‘E’ had no evidential value, same cannot be interfered with by this Court.
The Appellants relied heavily on Exhibits C and E (as well as the expunged Exhibit D) in proof of their case and complained that the contents of Exhibit D would have helped their case had it not been expunged in the judgment of the trial court, also Exhibits C and E, to prove they were entitled to claim in the lower court and faulted the evaluation of Exhibits C and E by the trial court.
The Apex Court in IWUOHA V. NIPOST (2003) 4 S.C. (PT. 11) 37 at 54, His Lordship Tobi, JSC in respect of the appellate court’s power to evaluate documentary evidence held thus:
“I should say that evaluation of a document is not within the exclusive preserve of the trial judge. Both the trial judge and the appellate judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate judge does not see, he sees like the trial judge, the document as exhibit. Therefore, where the finding of a trial judge on a documentary evidence is perverse, an appellate judge will easily see the perversion, and employ his appellate power to correct it.” (Underlined mine for emphasis.)
In my humble but considered view, the learned trial judge’s assessment and or evaluation of Exhibits C and E cannot be faulted as same was not perverse. I affirm same.
In the final analysis, the appeal succeeds in part, that is, on issue one conceded by the Respondent and on issue two in that Exhibit D ought not to have been expunged but failed in respect of the Appellants’ issues three and four. Parties to bear their respective costs.

ADAMU JAURO, J.C.A.: I read before now the lead judgment just delivered by my learned brother, C.N. Uwa, JCA, I entirely agree with the reasoning and conclusion arrived thereat to the effect that the appeal succeeds in part on issue one and two, but failed in respect of appellant’s issues three and four.
I adopt the judgment as mine and abide by the consequential order as to no costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my brother Chidi Nwaoma Uwa J.C.A. I agree with the reasoning and conclusion reached. I however wish to support the judgment with a modest contribution on the issue of the expunging of evidence earlier admitted by the trial Judge.
To the extent that evidence at variance with pleadings go to no issue, a trial Judge will be right to expunge evidence earlier admitted but which however went to no issue. The court will also be right to expunge evidence that has been admitted but is inadmissible under the Evidence Act or some other law. In Shittu vs. Fashawe (2005) 14 NWLR part 946 p.671 at p.690 the Supreme Court held that “where a court wrongfully admits inadmissible evidence, it ought as a duty,to disregard the inadmissible evidence in the consideration of the judgment in the matter”.

In Okoye Vs. Dumez Nig. Ltd. & Anor. (1985) 1 NWLR part 4 p.783 at p.790, the Supreme Court per Bello JSC (as he then was) held thus:
“A registered instrument which has not been registered is admissible to prove ……,equitable interest and to prove payment of purchase money or rent”.
See also Savage vs. Sarrough (1937) 13 NLR 141; Ogunbambi vs. Abowab (1951) 13 WACA 22; Fakoya vs. St. Paul’s Churc Shaga (1966) 1 All NLR 74; Oni vs. Arimoro (1973) 3 SC 163; Bucknor-Maclean vs. Inlaks (1980) 8-11 SC 1, all cited in Okoye vs. Dumez Nig. Ltd. & Anor. (supra).
Owing to the equitable interest which the Deed of Assignment Exhibit D established, the trial Judge ought not to have expunged it.
For the above reason and the fuller reasons given in the lead judgment, I also agree that the appeal succeeds in part and that the parties should bear their respective costs.

Appearances

A. R. Daramola For Appellant

AND

Akeem Agbaje Esq. with Clifford Anuge Esq. and Abiola Awojobi (Miss) For Respondent