CHIEF PAUL OKOROAFOR & ORS. v. GODWIN UDENSI & ANOR
(2013)LCN/5956(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/OW/124/2011
RATIO
RECEIPTS: DEFINITION OF A RECEIPT
A receipt generally is, that document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment. In Bowes vs. Foster (1858) 27 L.J Ex 262 at 266, Martin B held as follows:
“…To constitute a receipt of anything there must be a person to receive, and a person from whom he receives and something received by the former, from the latter, and that “something” must be a sum of money”PER TIJJANI ABUBAKAR, J.C.A.
RECEIPTS: WHAT MAKES A DOCUMENT A RECEIPT
The Supreme Court in Etajata & Ors vs. Ologbo & Another (2002), SC 138, relied on General Council of the Bar England vs. Inland Revenue Commissioners (1907)1 KB 462 at 471; where the Court held that for a document to be a receipt:
“It must be a document whereby the receipt or deposit or payment of money is acknowledged or expressed.”
A careful look at the above document shows that, there is no evidence of payment or financial; transaction as no amount is stated on the document this in my view therefore means the document sought to be tendered cannot qualify as purchase receipt.PER TIJJANI ABUBAKAR, J.C.A.
RECEIPTS: RECEIPTS ARE UNKNOWN TO NATIVE LAW
Let me add at this point that the general practice under native law, is that making and or giving receipts of purchase is unknown to native law. See Aboyade Cole vs. S. R Folami (1956) SCNLR 186 Clay IND Ltd vs. Aina (1977) 7 NWLR (Pt.515) Pg.208.
RECEIPT: ARE ACCEPTABLE AS EVIDENCE OF ACKNOWLEDGEMENT OF PAYMENT OF MONEY OVER A PROPERTY IN DISPUTE
It has been held in seemingly endless authorities that purchase receipts are only admissible as evidence of acknowledgement of payment of money in respect of property in dispute. See Waribegha vs. Owerre (2012) 3 NWLR (Pt.1288) Pg.530. PER TIJJANI ABUBAKAR, J.C.A.
LAND LAW: PURCHASE RECEIPTS IN LAND LAW ARE ONLY ADMISSIBLE AS EVIDENCE OF PAYMENT
For the reasons stated in resolving issue number one, purchase receipt is only admissible as an evidence of payment, the document subject matter of this appeal is not a purchase receipt, it is therefore inadmissible having failed to satisfy the requirements listed in Etajata (supra).PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. CHIEF PAUL OKOROAFOR
2. MAZI EKE UCHE IGBE
3. AGU KALU
(For themselves and as representing Umuenyere of Akoluifu Alayi)
4. PETER MAXWELL
5. PASTOR MOSES UNAH Appellant(s)
AND
1. GODWIN UDENSI
2. MRS. CHRISTIANA UDENSI Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Abia State High Court presided over by Hon. Justice S. A. Nwakaffio, delivered on the 23rd day of February 2011.
In brief, the Appellants who are defendant before the Abia State High Court, brought appeal, challenging the ruling delivered on the 23rd February, 2011, wherein the learned trial judge rejected document sought to be tended by the Defendants/Appellants in this appeal, on the ground that the said document does not qualify as purchase receipt.
Appellants brief of argument filed on 7th June 2012, was settled by learned counsel Mike Okezie, counsel distilled the following issues for determination:
“1. Whether or not the document rejected, does not qualify as a purchase receipt, because there is no indication of financial transaction on the face of it.
2. Whether or not a land document not registered can be admissible in evidence as a purchase receipt.”
The Respondents brief of argument filed on 15th June, 2012 was settled by learned counsel Nwokocha H. A; learned counsel formulated no issues for determination he adopted and argued Appellants issues for determination.
At the hearing of this appeal, on 27th November 2012, learned counsel Mike Okezie, for the Appellant, adopted the appellants brief of argument filed on 7th June 2012 and Appellants reply brief filed on 8th June 2012, and urged the Court to allow the appeal.
Learned counsel H. A. Nwokocha adopted Respondents brief of argument dated 15th June 2012, and urged this court to dismiss the appeal.
ISSUE No 1:
“whether or not the document rejected does not qualify as a purchase receipt because there is no indication of financial transaction on the fact of it.”
In arguing issue number one, learned counsel for the Appellants, referred this Court to the document in contention at page 88 of the record of appeal, and submitted that, the document clearly and expressly shows that the land in dispute was given to Agbai Uche by the Appellants “for granted”.
Learned counsel then referred this Court to the meaning of “grant” in chambers dictionary, which means “gift” that is, to bestow a gift, conveyance of property by deed etc, counsel also referred this Court to the meaning of “grant” in Blacks Law Dictionary to mean “give or confer something with or without compensation. That, it also means to formally transfer real property by deed or other writing”.
Learned counsel said the document sought to be tendered at the trial does not disclose any amount. That the document does not prove financial consideration, counsel referred the Court to page 103 of the record of appeal to show the conclusion reached by the Court on admissibility of the said document.
Counsel said, the document sought to be tendered does not purport to show evidence of financial transaction, rather the document is intended to prove that the land in dispute was donated as a grant or gift to the Respondents grandfather Agbai Uche. Learned counsel referred the Court to Okoye vs. Dumez Nig. Ltd. (1935) 1 NWLR (Pt.783), and said, registrable instruments which are not registered, are if pleaded, admissible in evidence to prove not only payment of purchase money or rent, but also to prove equitable interest where the purchaser or leasee is in possession, counsel also relied on Alhaji Buba Usman vs. Mohammed T. Garke (1999) 1 NWLR (Part 587), and said, registrable land instrument which is not registered is not admissible as evidence of title, but is admissible as mere evidence of personal contract between two parties; He relied on Obisanya vs. Nwoko (1974) 6 S. C 69; and urged this Court to resolve this issue in favour of the Appellant.
ISSUES 2:
“Whether or not a land document not registered can be admissible in evidence as a purchase receipt.”
On this issue counsel referred this Court to Djukpan vs. Orevuabe (1967) All NLR 134/140, and said purchase receipt which. is not registered under the land instrument registration law is admissible not as instrument affecting land, but as an acknowledgment of payment of money and memorandum evidencing a transaction under native law and custom.
Learned counsel also said a purchaser of land who has paid and taken possession of land by virtue of a registrable instrument which has not been registered has acquired equitable interest which is as good as a legal estate.
Learned counsel also referred the Court to Nigeria Telecoms Plc. vs. Rodconah Property Ltd (1995) 2 NWLR (Part 578) and Folasade vs. Dorosola (1961) 1 SCNCR 150 (1961) 1 All NLR 87.
Learned counsel said, the document is admissible in law not only as an instrument affecting the land but also as a memoranda evidencing transaction under native law and custom.
Counsel therefore urged this Court to allow the appeal and set aside the judgment of the trial Court.
Learned counsel Nwokocha for the claimants Respondents adopted Respondents Brief of argument filed on the 15th day of June 2012, learned counsel raised objection to the competence of Appellants appeal. Respondents counsel referred this Court to Section 14 of the Court of Appeal Act and said by the meaning of Section 14(1) of the Court of Appeal Act an Appellant must seek for and obtain.
Leave of the trial court or the court of appeal before bringing interlocutory appeal. Counsel said Appellant did not obtain leave of Court, this therefore renders the appeal incompetent, counsel urged this Court to hold that the appeal is incompetent, he referred the Court to Mobil Producing vs. Monoco (2003) 16 NSCQR 448: and urged the Court to dismiss the appeal.
Learned counsel for the Respondents adopted and argued appellants issues for determination in the event the preliminary objection raised is not sustained; Mr. Nwokocha said the twin issues for determination as distilled from Appellants grounds of appeal appear to be the same, he therefore argued the two issues together.
Learned counsel said, no amount of money was mentioned in the documents sought to be tendered in evidence by the Appellants. That Appellants argued that there was no buying or selling of land, there was no monetary transaction, no purchase, learned counsel therefore said, it is wrong to pass such an unregistered document as purchase receipt.
Counsel Nwokocha said, an unregistered document in respect of land is inadmissible as evidence of title, but may be admitted as an acknowledgement of payment of money in respect of property in dispute, counsel referred this Court to Waribegha vs. Owere (2012) 3 NWLR (Pt.1288) Pg.513 ratio 4.
Learned counsel submitted that since the document sought to be tendered is not a purchase receipt, it cannot be admitted. Counsel said the document is a photocopy of the original, not registered, no illiterate jurat document having been thumb printed, he said the decision by the Court below to reject it is Proper.
Mr. Nwokocha said, the document sought to be tendered offends section 2 of the land instrument registration law of Eastern Nigeria applicable in Abia State, which requires that documents transferring title to land be stamped and registered. Learned counsel referred the Court to Ikonne vs. Nwachukwu (1991) 2 NWLR (Pt.172) at 214.
Counsel said, from the way parties thumb printed the document, it is obvious there is presumption of illiteracy and in this circumstance, there must be compliance with section 3 of the illiterates protection law by providing illiterate jurat, absence of one renders the document inadmissible. Counsel referred the Court to SCOA vs. A. P. Okon (1959) 4 PSC 230; Barclays Banks vs. Memunatu Hassan (1951) All NLR 835; Iro Ezera vs. Inyama Nsukwe (1961) All NLR 568; Warigbegha vs. Owere (Supra).
Learned counsel for the Respondents therefore urged this Court to dismiss the appeal and affirm the judgment of the Court below. Learned counsel Obi Okezie for the Appellants filed Appellants reply briefs dated 5th October 2012 filed on 8th October 2012 learned counsel Okezie adopted his reply brief, in it, counsel identified two issues; arising from Respondents briefs.
1. Issue of competence of the appeal filed by the Appellants.
2. Issue of no pleading and proper foundation, proper custody, no illiterate jurat etc of the said document in contention.
Learned counsel Okezie said, once an issue of competence of appeal is raised, it should be determined first before the appeal is considered; counsel relied on UAC Nig. Plc vs. Odeyemi (2011) 13 NWLR (Pt.1265).
The Respondents raised issue of failure by the Appellants to apply for and obtain leave of Court before bringing this appeal, learned counsel for the Appellants said where the grounds of appeal involve questions of law alone, and the appeal is filed within time stipulated by the rules of Court, the appeal must be held to be competent, Counsel referred this Court to Oraekwe vs. Chuwuka (2012) 1 NWLR (Pt.1280).
Counsel referred the Court to pages 101 to 105 of the record of appeal, and said the grounds of appeal are based on law alone. He urged the Court to hold that leave of Court is not necessary in the instant appeal.
On the issue of proper foundation, proper custody, and illiterate jurat, learned counsel for the Appellants, said Respondents submissions is baseless as they do not address Appellants grounds of appeal found at pages 104-105. Learned counsel for the Appellants referred the Court to Okonji vs. Njokanma (19991 14 NWLR (Pt.638]; and said three criteria govern admissibility of a document.
a. Is the document pleaded.
b. Is the document relevant.
c. Is the document admissible
Counsel urged this Court to allow the appeal and admit the said document as it is relevant.
The Respondents through learned counsel Nwokocha raised some issues in Respondents brief touching on the competence of this appeal.
It is therefore important in my view to deal with the issues first, so doing may determine the appeal.
Respondents counsel raised issues of leave of Court to bring this appeal, illiterate jurat. The Appellants filed two grounds of appeal and formulated two issues therefrom, the issues formulated by the Respondents in this appeal do not arise from Appellants grounds of appeal, there is nothing before us to support Respondents argument on these issues, as you cannot build something on nothing and expect it to stand, a Respondent who does not file cross-appeal or Respondents notice has no slightest business embarking on unwanted industry formulating issues outside Appellants grounds of appeal such issues however will crafted and canvassed must be consigned to the obvious that is to say they must be discountenanced with speed.
An issue for determination in an appeal ought not be formulated as an abstract legal issue without reference to the grounds of appeal filed by the Appellant, it is not open to a Respondent to depart from the Appellants grounds of appeal when formulating his issues for determination. A Respondent can only, without departing from the Appellants grounds of appeal formulate his own issues for determination if he has valid cross-appeal or Respondents notice. See Ossai vs. Wakwah, (2005) 4 NWLR (Pt.969) Pg.208 at 217.
Since Respondents issues touching on competence of this appeal do not arise from Appellants grounds of appeal, and Respondents have not filed cross-appeal or Respondents notice, the result must be that such arguments must be and are hereby discountenanced.
Having argued in the alternative, learned, counsel for the Respondent adopted Appellants issues for determination. I will again reproduce Appellants issues as follows:
1. Whether or not the document rejected does not qualify as a purchase receipt, because there is no indication of financial transaction on the face of it.
2. Whether or not a land document not registered can be admissible in evidence as a purchase receipt.”
Learned counsel for the Appellants urged this Court to determine whether the document rejected does not qualify as purchase receipt because there is no indication of financial transaction on the face of it.
On 23rd January 2011, the trial judge rejected the document sought to be tendered by the Appellants defendants before the trial Court, in rejecting the document he said:
“…first of all, this document from a cursory examination as on agreement for the grant of land to Agbai Uche (Respondents) by the people of Umuanyere (Appellant) it is not a receipt for the purchase of land as there is no where any consideration in the form of money or any consideration in form money or any other payment in kind is mentioned…the document does not qualify as a receipt as there is no indication of any financial transaction this regard. I am unable to admit this document as an evidence of receipt. The document is for the above reason inadmissible. It is hereby rejected and shall be so marked…”
Learned counsel for the Appellant said, the document was not meant to establish financial transaction, rather it was intended to prove that the land in dispute was donated as a grant to the first claimant, Respondents father Agbai Uche.
Learned counsel for the Appellants said, the document was pleaded in paragraph 7 of the further amended statement of defense, page 76 of the record of appeal to be tendered as purchase receipt.
Counsel for the Respondents said, Appellants never applied to tender the document as a donation or gift rather it was tendered as purchase receipt, counsel referred the Court to page 101 paragraph 1 of the record of appeal. Counsel said such an unregistered document cannot go in as a purchase receipt. He said an unregistered document is inadmissible as evidence of title, it is however admissible as on acknowledgment of payment of money in respect of property in dispute.
Learned counsel Nwokocha for the Respondents said, the Appellants can only tender the said exhibit to establish acknowledgment of payment of money which confers equitable interest on the buyer, he said, where there is no payment of money, the document is not a purchase receipt, and cannot therefore be admitted. He urged this Court to also hold that the document is not a purchase receipt.
Page 76 of the record of appeal shows Appellants further amended statement of defence, where defendant Appellant said the document will be tendered as a receipt in the course of hearing.
The exhibit, which is the subject matter of this appeal reads in part as follows, it must be stated that, the document is not sufficiently clear, however, part of the document is reproduced thus:
“…this is an agreement made today 19th January 1961 between Agbayi Uche, and the people of Umuanyere by which Agbai Uche is authorised by the people of Umuanyere Alayi, to put up his building Ozara. This space of land is given to him…granted.
The length of the area is one hundred and fifty feet and the width is hundred ….Agbai Uche could use the land for any purpose he might…..
Signature of the representatives of Umuonyere
Okorie Chukwu
Uche Elesie
Iheke Oghajie
Signature of
Agbayi Uches
Witness.
Okorafor Okorie
Agbayi Uche.”
The Appellants tendered the above exhibit as receipt, and Respondents objected on the grounds stated earlier in this judgment, and the ruling of the Court which now became the subject of this appeal. See Waribegha vs. Owerre (2012) 2 NWLR (Pt.1288) Pg.530.
A receipt generally is, that document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment. In Bowes vs. Foster (1858) 27 L.J Ex 262 at 266, Martin B held as follows:
“…To constitute a receipt of anything there must be a person to receive, and a person from whom he receives and something received by the former, from the latter, and that “something” must be a sum of money”
The Supreme Court in Etajata & Ors vs. Ologbo & Another (2002), SC 138, relied on General Council of the Bar England vs. Inland Revenue Commissioners (1907)1 KB 462 at 471; where the Court held that for a document to be a receipt:
“It must be a document whereby the receipt or deposit or payment of money is acknowledged or expressed.”
A careful look at the above document shows that, there is no evidence of payment or financial; transaction as no amount is stated on the document this in my view therefore means the document sought to be tendered cannot qualify as purchase receipt.
Let me add at this point that the general practice under native law, is that making and or giving receipts of purchase is unknown to native law. See Aboyade Cole vs. S. R Folami (1956) SCNLR 186 Clay IND Ltd vs. Aina (1977) 7 NWLR (Pt.515) Pg.208.
It has been held in seemingly endless authorities that purchase receipts are only admissible as evidence of acknowledgement of payment of money in respect of property in dispute. See Waribegha vs. Owerre (2012) 3 NWLR (Pt.1288) Pg.530.
In the instant appeal the document sought to be tendered cannot by any means be taken as purchase receipt, as there is no evidence of payment of money, the person who paid and the person who received, it is therefore not admissible as an acknowledgement of payment. This issue is therefore resolved in favour of the Respondent.
The Second issue is:
“Whether or not a land document not registered can be admitted as a purchase receipt.”
For the reasons stated in resolving issue number one, purchase receipt is only admissible as an evidence of payment, the document subject matter of this appeal is not a purchase receipt, it is therefore inadmissible having failed to satisfy the requirements listed in Etajata (supra).
The above issue in my view appears to be a reincarnation of issue umber one, it appears also to be an attempt by counsel to show distinction between six and half a dozen,whatever industry is put in so doing, the result will always be “same”.
For the avoidance of doubt, and unregistered land document may be admitted to establish equitable interest of the holder which is an evidence of good title, but a receipt of payment is only admissible as an acknowledgement of payment.
The document which forms the pivot of this appeal is not a purchase receipt, this issue is also resolved in favour of the Respondents.
Having resolved the two issues in favour of the Respondents, I finally hold that the appeal lacks merit, it is hereby dismissed.
For the avoidance of doubt, the decision of Abia State High Court delivered by Nwakanma J. on 4th March 2011 is affirmed by me.
I make no order as to cost.
MOJEED A. OWOADE, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned brother T, Abubakar, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
HARUNA SIMON TSAMMANI, J.C.A.: My Learned brother Tijjani Abubakar, JCA gave me a copy of the judgment just delivered by him.
I agree with his reasoning and conclusion that the appeal has no merit and that it should be dismissed. It is accordingly dismissed by me. I also abide by the consequential orders made therein.
Appearances
Mike OkezieFor Appellant
AND
H. A. NwokochaFor Respondent
