GEORGE IKELI & ANOR v. TERUNGWA AGBER (2014)

GEORGE IKELI & ANOR v. TERUNGWA AGBER

(2014)LCN/6964(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of March, 2014

CA/MK/139/2011

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

OBANDA FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

1. GEORGE IKELI
2. AGBER CHEN Appellant(s)

AND

TERUNGWA AGBER Respondent(s)

RATIO

WHETHER OR NOT THE APPELLATE COURT HAS THE JURISDICTION TO HEAR A FRESH ISSUE WITHOUT LEAVE OF COURT

WHETHER OR NOT THE ISSUE OF LOCUS STANDI IS INTERTWINED WITH THE RELATIONSHIP WITH THE ISSUE OF JURISDICTION

It admits of no arguments that issue of locus standi has an intertwined relationship with issue of jurisdiction. lf a party is dispossessed of locus standi, then a court of law is divested of the jurisdiction to try his matter for same will be infested with irredeemable incompetence, see Emezi v. Osuagwu (2005) 12 NWLR (Pt.939) 340/(2005) 30 WRN 1; A.-G., Anambra State v. A..G.,Fed. (2007) 11 NWLR (Pt.1047) 4; Admin./Exec. Estate, Abacha v. Eke-Spiff (2009) 17 NWLR (Pt.1171) 614; Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137; Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (Pt.1355) 28; Adebayo v. PDP (2013) 17 NWLR (Pt.1382) 1; Obande F. Ogbuinya, Understanding The concept of Jurisdiction In the Nigerian Legal System, Snaap Press Ltd., Enugu, 2008, Pages 167-173.This, legally, accepted rider, tangibly deflates the respondent’s seemingly vitriolic attack on the appellants, objection to his locus standi. Put starkly, the objection is well founded in law and deserves consideration by this court. The respondent’s objection is overruled for want of legality. From an etymological perspective, the expression, ‘locus standi’, a cliche in adjudications, traces its roots to Latin Language. It denotes: “place of standing”. In its expounded legal form, it connotes the legal right or capacity of a person to institute an action in a court of law when his right is violated by somebody or authority, see Adesanya v. The President, FRN (1981) 5 SC 112/(1981) 2 NCLR 358, the locus classicus on locus standi in the Nigerian jurisprudence; Adetona v. Zenith Int’l Bank Plc. (2011) 18 NWLR (pt.1279) 627; Taiwo v. Adegboro (2011) 11 NWLR (Pt.1259) 552.

Nigerian citizens derive their locus standi from the constitution, statutes, customary law or voluntary arrangements in organisation involving their civil rights and obligations, see Odenye v. Efunuga (1990) 7 NWLR (Pt.164) 618. Locus standi was invented to protect the court from being converted into a jamboree by professional litigants or meddlesome interlopers who have no interest in matters, see Taiwo v. Adegboro (supra). For a party to establish his locus standi, he must show that the matter is justifiable and the existence of dispute between parties, see Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra). It is a statement of claim or affidavit in originating summons that is examined by a court in determining the locus standi of a party, see Taiwo v. Adegboro (supra); Adesanoye v. Adewole (2006) 14 NWLR (Pt.1000) 242; Odeneye v. Efunuga (supra); Uwazuruonye v. Gov., Imo State (supra). Here, the trial was not predicated on pleadings. In this wise, the respondent’s evidence adduced before trial court will serve as veritable materials in determining the existence or otherwise of his locus standi, see Barclays Bank of Nigeria Ltd. v. CBN (1976) 1 All NLR 409; A.-G., Kwara State v. Olawole (1993) NWLR (Pt.272) 645.
It is discernible from the totality of the respondent’s evidence, offered by PW1-PW3 before the trial court, that he was laying claim to ownership of the disputed land. He traced his ownership to his mother, Mbaorun Agber, PW2, who purchased it from Iorliam Jibiri, PW1 by dint of exhibit A. In other words, the evidence showcased the respondent’s interest in the property. That is to say, the respondent had rights, advantages, duties, whether ascertained or potential, over the disputed property. The respondent disclosed sufficient interest which dovetails with special legal right. Indisputably, the appellants’ interference in his interest in the land will definitely affect him adversely. After all, chances of success in an action are irrelevant in considering locus standi of a party; see Taiwo v. Adegboro (supra); Ajayi v. Adebiyi (supra); Adetona v. Zenith Int’l’ Bank Plc. (supra). Put shortly, the law does give the respondent, armed with locus standi, the guarantee of the success of his case. It merely assures him of a fifty-fifty chance of succeeding or failing in his case. PER OGBUINYA, J.C.A.

WHETHER OR NOT FOR A CONTRADICTION TO DENT THE EVIDENCE OF ANY PARTY, IT MUST BE MATERIAL

I proceed to settle the kernel of issue one. The appellants derided the evidence of the respondent, proffered by PW1-PW3 in the trial court, as enveloped in contradictions and, ipso facto, unreliable. Contradiction, like most legal terminologies, traces its lexical descent to two Latin words’ ‘contra’ and ‘dictum’, ‘contradictum’, which means “to say the opposite”. For Contradiction to dent the evidence of any party, it must be on material, not tangential, point, see Ogun v. Akinyelu (2004) 18 NWLR (Pt.905) 362; Owie v. Ighiwi (2005) 5 NWLR (Pt.917) 184; Wachukwu v. Owunwnne (2011) 14 NWLR (Pt.1266) 1; Taiwo v. Ogundele (2012) 15 NWLR (Pt.1322) 57. PER OGBUINYA, J.C.A.

THE DUTY OF THE APPELLATE COURT IN INTERPRETING A DECISION OF AN AREA OR CUSTOMARY COURT

Not only that, the proceedings, wherein exhibit A was wrapped in, were those of an area or customary court. In interpreting a decision of an area or customary court, the law mandates an appellate court to look at the substance, not the form of such proceedings, to be liberal and broad in its construction and the procedure adopted therein with the aim of discovering the dispute, the matters upon which issues were joined and the purport of the decision, see Ikpang v. Edoho (1978) All NLR 196; Ekpa v. Utong (1991) 7 SCNJ (Pt.1) 170 Ezeanya v. Okeke (1995) 3 SCNJ 60; Garuba v. Yahaya (2007) 2 NWLR (Pt.1021) 390; Arum v. Nwobodo (2013) 10 NWLR (Pt.1362) 374; Olodo v. Josiah (2010) 18 NWLR (Pt.1225) 653. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the appellate decision of the High Court of Benue State, coram, E. N. Kpojime and W. I. Kpochi, JJ., in Appeal No. GHC/12A/2009, delivered on 20/04/2011, wherein it allowed the respondent’s appeal. The appellants and the respondent herein were the respondents and the appellant before the lower Court.

The facts of the case, which transformed into the appeal, are brief. The respondent, the biological son of the second appellant, as a plaintiff, sued the appellants before the Upper Area Court I, Gboko, presided over by M. Odinya, Esq., for a declaration of title and injunction over a plot of land lying and being at No.23 Brigadier Ikya Street, GRA, Gboko, Benue State. The respondent claimed that his mother, Mbaorun Agber, who purchased the land from Iorliam Jibiri, transferred it to him. The first appellant filed a counter-claim and claimed for ejection of the respondent and injunction in respect of the land. The first appellant asserted that the second appellant, who, also claimed purchase of the land from Iorliam Jibiri, sold it to him. In proof of his case, the respondent testified as PW3 fielded two other witnesses, PW1 and PW2, and tendered exhibits A and B. on the other hand, the appellants in disproof of the case testified themselves as D1 and DW2 respectively, and tendered exhibits D1 – D5. During the trial, parties denied liability, qua counsel. After hearing the parties, the trial Upper Area Court gave judgment to the appellants on 28/05/2009.

The respondent was dissatisfied with the decision. Consequently, he lodged an appeal against it before the lower Court on 04/06/2009 as evidenced on page 90 of the printed record. After hearing the appeal, the lower Court, in a considered judgment, delivered on 20/04/2011, upturned the decision of the trial court and entered judgment in favour of the respondent over the said property.

Being aggrieved by the decision, the appellants filed a six-ground notice of appeal, found on pages 117-123 of the record, in which they prayed this court to:

“a. Allow the appeal

b. Set aside the judgment of the High Court on Appeal in this case and

c. Restore the judgment of the trial Upper Area Court in favour of the appellant with all the consequential orders thereof”. Sequel to that, parties filed and exchanged their briefs of argument in line with the provisions of the Rules of this court.

Thereafter, the appeal was heard on 06/02/2011. During the hearing, learned counsel for the appellants, Ocha Ulegede, Esq., adopted the appellants’ brief of argument, filed on 05/12/2011, but deemed filed on 06/02/2014, as representing his arguments for the appeal. He urged the court to allow the appeal. Similarly, learned counsel for the respondent, J. J. Akaazua, Esq., adopted the respondent’s brief of argument, filed on 15/03/2013, but deemed filed on 06/02/2014, as forming his submissions against the appeal. He prayed the court to dismiss the appeal.

The appellants, in their brief of argument, distilled three issues for the determination of the appeal to wit:

1. Whether the lower court properly appreciated and carried out proper and adequate evaluation of the evidence on record in coming to its decision allowing the appeal.

2. Whether oral evidence is admissible to vary, change and or alter documentary evidence.

3. Whether the lower court erred in law when it held act of possession, development and putting tenants on the land do not constitute proof of ownership.

Exultantly, the respondent adopted, wholeheartedly, the appellants’ three issues for the determination of the appeal.

Arguments on the issues:

Issue one:

Learned counsel for the appellants submitted that the lower court’s failure to properly and adequately evaluate the evidence on the record led it to a wrong decision of reversing the decision of the trial court. He further submitted that had the lower court property and adequately evaluated the evidence on record, it would have discovered the glaring material contradictions in the respondent’s case. He highlighted some parts of the evidence of PW1 and PW2 and posited that the alleged sale of the land was between them and not between PW1 and PW3 – the respondent. He, then, insisted that there was nothing connecting the respondent with the sale transaction to enable him maintain the action in the first place.

Learned counsel enumerated the alleged contradictions in the respondent’s case as follows: PW1 said there was one agreement, PW2 said that there were two agreements; adding that exhibit A was the one between PW2 and PW3; PW1 said that the N20.00 paid for the sale of the land was in coins, PW2 said it was in one single note; PW1 testified that he sold the land to PW2 and that he made a gift of the land to PW2; PW2 testified that at the time she bought the land from PW1, PW3 was already born and, also, that at that time, PW3 had not been born and while his (PW3’s) birth certificate showed 27/08/1981, PW3 stated his date of birth as 25/04/1980; PW1 gave evidence that the size of the land was 100 feet by 80 feet whilst exhibit A stated 100 feet by 50 feet; and PW2 testified that the receipts for the materials she used in the building a house on the land was with PW3, but the PW3 denied custody of them.

He took the view that these highlighted contradictions were material and rendered the respondent’s evidence unreliable as found by the trial court and which the lower court ought to have upheld. In support of the submission, he relied on the cases of Osadim v. Taiwo (2010) All FWLR (Pt.534) 146; Bodi v. Agyo (2003) FWLR (Pt.156) 815; Ogedengbe v. Balogun (2007) NWLR (Pt.1039) 380. He added that the decision of the lower court occasioned a miscarriage of justice to the appellants and should be set aside. He cited the case of Lagga v. Sarhuna (2008) 16 NWLR (Pt.1114) 427 for the view.

Learned counsel contended that what happened to the tendering and admission of exhibit A was a failure on the part of the respondent to prove his root of title to the land which was fatal to his case. He referred to the cases of Ukaegbu v. Nwololo (2009) 3 NWLR (Pt.1127) 194; National Invest. & Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) NCLR 110; Emegokwue v. Okadigbo (1972) 1 NWLR 192; Ibanga v. Usang (1982) 1 All NLR (Pt.1) 88; Akakpuna v. Zeka II (1983) 2 SCNLR 1 in support of the contention.

He further contended that the lower court wrongly held that the issue of family property was not before it. He described the finding as its failure to appreciate the real purport of the case before it. He stated that there was clear evidence that the second appellant, DW2, was married to the PW2 who begat him the respondent; adding that both, DW2 and PW2, lived together with other members of the family until the former took a second wife and the latter left the compound. He persisted that there was evidence from PW1 that PW2 was related to him by marriage, he hence cooked up the story of the sale of the land to her. He noted that there was unchallenged evidence that the second appellant developed the compound, resided therein and gave same on rent to other persons. He maintained that the lower court was wrong to have held that PW1 was not an interested party to the action whose evidence is to be expunged or treated with caution. He referred to the cases of Woluchem v. Gudi (1981) 5 SC 291; Agballah v. Nnamani (2006) 2 EPR 757; Ararume v. INEC (2007) 9 NWLR (Pt.1038) 127; Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367; Iyamu v. Alonge (2007) 6 NWLR (Pt.1029) 84 for the contentions. He concluded that the finding occasioned a miscarriage of justice to the appellants.

For the respondent, learned counsel argued, per contra, that the lower court properly evaluated the evidence and rightly found for the respondent. He posited that the highlighted contradictions were not fundamental as to affect the respondent’s case. He stated that exhibit A showed that the land was bought by PW2 from PW1 and both signed and identified it. He referred to the evidence of PW1, PW2 and PW3 which supported the content of exhibit A. He reasoned that exhibit A showed that PW1, bought the land for the respondent, PW3, so that he had the locus standi to maintain the action. He further argued that the appellants did not raise the issue of locus standi in the trial court, lower court and this court and could not introduce it at this stage. He cited the case of Odeh v. FRIN (2008) 4 KLR (Pt.252) 1615 in support of the argument. He insisted that the grounds of appeal and the issues did not raise the issue of locus standi and that the court should discountenance it. He repeated that the contradictions were not material. He added that the sale transaction occurred in 1980 and the witnesses were not expected to recall everything word for word. He relied on the case of Dagayya v. State (2006) 1 KLR (Pt.209) 253 for the view.

Learned counsel contended that the respondent proved his root of title to the land. He stated that both parties traced their root of title to PW1, which was not in doubt, who traced his to inheritance from his forefathers. He noted that the appellants are to succeed on the strength of their case – established their title to the land in their counter claim, not on the weakness of the case of the respondent. He placed reliance on the case of CPC v. INEC (2011) 12 KLR (Pt.303) 2823 for the proposition. He added that PW1 testified that he sold the land to PW2 and not DW2, the appellant, and as shown by exhibit A. He persisted that the Lower Court was right to rely on them on the authority of Amayo v. Erinwingbovo (2005) 5 KLR (Pt.219) 1821.

He further contended that the relationship that existed between the respondent and PW1 was not enough proof that PW1 was an interested party. He added that the same relationship existed between PW1 and the second appellant, DW2 and there was no evidence on record why he should testify in favour of the respondent. He postulated that the lower court tested the evidence of the parties in an imaginary scale of justice and came to the right conclusion that it tilted in favour of the respondent. He placed reliance on the case of Anyanwu v. Uzowuka (2009) 7 KLR (Pt.270) 1829 for the postulation. He concluded that the lower court was right in its decision.

Issue two.
Learned counsel for the appellants submitted that the evidence of the parties were documentary – exhibit A and exhibit B4 relied on by the respondent and the appellants respectively. He posited that oral evidence would not be allowed to vary them. He relied on the case of B. Manfag (Nig) Ltd. v. M.S.O.I. Ltd. (2007) 14 NWLR (Pt.1053) 109 to buttress the submission. He further submitted that the lower court was wrong when it held that PW1 should have been confronted with exhibit D4 when it knew that his oral evidence would not vary it, being the best form of evidence on the issue. He placed reliance on the cases of Skye Bank Plc. v. Akinpelu (2010) All FWLR (Pt.526) 460; Manfag (Nig.) Ltd. v. M.S.O.I. Ltd. (supra); Oloye v. Balogun (1990) 5 NWLR (Pt.148) 74; Ogbe v. Asade (2010) All FWLR (PT.510) 612 for the submission.

On behalf of the respondent, learned counsel contended that PW1 denied selling the land to the second appellant so that he was supposed to be confronted with exhibit D4 which was tendered after his testimony. He stated that the lower court was mindful of the fact that pleadings were not filed in the matter. He further argued that exhibit D4 was not signed by the seller and the purchaser. And the lower court was right to hold that no weight ought to be attached to it. He sought in aid of the case of Gaji v. Paye (2003) FWLR (Pt.163)1917. He took the view that the lower court was right to attach value to exhibit A which was admitted without objection. He opined that the cases cited by the appellants on the issue supported the respondent’s case.

Issue three.

Learned counsel for the appellant submitted that the respondent and his witnesses never denied the second appellant’s long possession and acts of ownership on the land, before he sold it to the first appellant, and thereafter on the latter’s authority. He posited that those acts proved that the second appellant was the owner of the land and he legally effected its transfer to the first appellant. He stated that the respondent faired to prove any of acts of development alleged by PW2 and his action must fail. He relied on the cases of Ukaegbu v. Nwololo (supra); Yusuf v. Adegoke (2007) 11 NWLR (Pt.1045) 332; Idundun v. Okumagba (1976) 9-105 SC 227 on ways of proving title to land. He referred to the conflicting evidence of PW2 and PW3 on the receipts for materials bought for development of the land as showing that the PW2 did not develop it. He stated that the respondent and PW2 agreed that those pastors, who lived on the land, were tenants or at the instance of the second appellant; adding that those were acts of his ownership of the land. He cited the case of Echere v. Ezirike (2006) All FWLR (Pt.323) 1597; Olukoya v. Ashiru (2006) All FWLR (Pt.322) 1479 to buttress his view.

For the respondent, learned counsel argued that the cases of the parties were not based on acts of possession of the land, but on purchase of it from PW1. He explained that it bordered on as between exhibit A and exhibit D4 which conferred better title to its holder. He insisted that it was exhibit A which was earlier in time and not exhibit D4 which was not signed. He stated that when an attempt to prove title failed, acts of possession based on that root of title cannot be sustained. He relied on the case of Ukaegbu v. Nwololo (supra) for the argument. He posited that when the appellants faired to prove their title through exhibit D4, they could not rely on acts of possession. He added that there was evidence that the second appellant, PW2 and the respondent resided in the disputed plot before the PW2 left the place. He noted that evidence showed that part of the structure on the land was developed by PW2 and part by the second appellant, DW2. He persisted that the respondent proved his root of title through exhibit A, purchase of the land which is one of the ways of proving title to land. He cited the cases of Yusuf v. Adegoke (supra) and Idundun v. Okumagba (supra) to support his argument.

Resolution of the issues.

In this segment of the judgment, I will attend to the issues serially, in their numerical sequence, beginning with issue one. Before I delve into the hub of issue one, it is germane to treat one critical point raked up by the appellants against the competence of the respondent’s action, which metamorphosed into the appeal, ab initio. The objection queries the locus standi of the respondent to commence the action since he was not a party to the transaction between PW1 and PW2, exhibit A. Obviously, the objection is aimed at terminating the life of the respondent’s action in limine and, de jure, deserves foremost consideration.

The respondent had launched a counter-attack against the objection branding it as a fresh point which the court would not entertain except leave was sought and obtained. I have given an in-depth study to the printed record. I was unable, even with the judicial lens, to stumble on a place the appellants made the issue of locus standi of the respondent to institute the action an issue either in the lower courts or this court. The point, clearly, qualifies as a fresh issue.

It is the law that an appellate court is drained of the jurisdiction to hear a fresh issue save with the leave of court. The jurisprudential base for the hallowed principle of law is to avoid determining an appeal on issues the parties were not heard on in a lower court thereby infringing/eroding their inviolable right to fair hearing as enshrined in section 36(1) of the 1999 Constitution, as amended, see Gaji v. Paye (supra)/(2003) 8 NWLR (Pt.823) 583. However, the age-long principle of law is qualified. where a new point touches on the jurisdiction of a court, then the necessity for leave of court is obviated, giving an appellate court the vires to adjudicate on such fresh issue(s), see Elugbe v. Omokhafe (2004) 18 NWLR (Pt.905) 319; Moses v. State (2006) 11 NWLR (Pt.992) 458; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt.1236) 175; Opobiyi v. Muniru (2011) 18 NWLR (Pt.1278) 389; Gaji v. Paye (supra); owners of M/V Gongola Hope v. S.C. (Nig.) Ltd.(2007) 15 NWLR (Pt.1056) 189; U.T.B. Ltd. v. Dolmetsch Pharm. (Nig.) Ltd. (2007) 19 NWLR (Pt.1013)187; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592.
It admits of no arguments that issue of locus standi has an intertwined relationship with issue of jurisdiction. lf a party is dispossessed of locus standi, then a court of law is divested of the jurisdiction to try his matter for same will be infested with irredeemable incompetence, see Emezi v. Osuagwu (2005) 12 NWLR (Pt.939) 340/(2005) 30 WRN 1; A.-G., Anambra State v. A..G.,Fed. (2007) 11 NWLR (Pt.1047) 4; Admin./Exec. Estate, Abacha v. Eke-Spiff (2009) 17 NWLR (Pt.1171) 614; Ajayi v. Adebiyi (2012) 11 NWLR (Pt.1310) 137; Uwazuruonye v. Gov. Imo State (2013) 8 NWLR (Pt.1355) 28; Adebayo v. PDP (2013) 17 NWLR (Pt.1382) 1; Obande F. Ogbuinya, Understanding The concept of Jurisdiction In the Nigerian Legal System, Snaap Press Ltd., Enugu, 2008, Pages 167-173.This, legally, accepted rider, tangibly deflates the respondent’s seemingly vitriolic attack on the appellants, objection to his locus standi. Put starkly, the objection is well founded in law and deserves consideration by this court. The respondent’s objection is overruled for want of legality.

From an etymological perspective, the expression, ‘locus standi’, a cliche in adjudications, traces its roots to Latin Language. It denotes: “place of standing”. In its expounded legal form, it connotes the legal right or capacity of a person to institute an action in a court of law when his right is violated by somebody or authority, see Adesanya v. The President, FRN (1981) 5 SC 112/(1981) 2 NCLR 358, the locus classicus on locus standi in the Nigerian jurisprudence; Adetona v. Zenith Int’l Bank Plc. (2011) 18 NWLR (pt.1279) 627; Taiwo v. Adegboro (2011) 11 NWLR (Pt.1259) 552.

Moreover, the evidence further revealed that the respondent’s matter, claims for title to the land and injunction thereon, comes within the wide realm of justiciability. It is amenable to disposition judiciously in a court of law. Also, there is disputation between the feuding parties as to who owns the plot of land in question. Presence of dispute between the parties is quite apparent.

Flowing from the foregoing, I am of the humble view that the respondent fulfilled the requirements of the law on locus standi vis-a-vis his action. My view point is solidified by the law, x-rayed earlier, that there is a yawning gap between possession of locus standi and success of an action. Both are mutually exclusive. The former is not an assurance for the latter. I, therefore, hold that the respondent is clothed with the requisite locus standi to institute the action which culminated in this appeal, on this premise, the fate of the appellants’ objection is a not a moot point. It is unsubstantiated. Consequently, I overrule it for want of legal justification.

The appellants, in a spirited bid to douse/puncture the respondent’s case, chronicled roads of instances of contradictions in his evidence presented to the trial court by PW1-PW3. To begin with, the meat of the respondent’s case before the trial court, which was rightly affirmed by the Lower Court, was whether he acquired title over the land vide exhibit A.
Given the hub of his case, the point as to whether the PW2 paid the PW1 in coins or notes, when she bought the property, was immaterial to the sale transaction. Both are acceptable legal tender within the confines of Nigerian currency. The bottom-line was that PW2 furnished the agreed consideration for the transaction. Also, the two different dates of birth, placed before the trial court, were collateral to the sale of the land. This is more as the date, stated by PW3, 25/04/1980, preceded the date, of the transaction which was categorically inscribed in exhibit A as 05/11/1980.

By the same token, the evidence relating to the difference in the dimension of the land, 100 feet by 80 feet and 100 feet by 50 feet, is insignificant when compared to the issue in contention. Besides, the appellants were not, in the least, misled by the two versions of the size of the disputed land. Hence, they, duly, joined issues with the respondent and even counter-claimed thereon. The PW1’s mention of selling and giving the land to PW2 are trifling discrepancies that do not go to the prop of the respondent’s case. This is because, PW1 was consistent with the payment of N20.00 to him when he transferred the land to PW2. To my mind, the payment and acceptance of the agreed N20.00 by PW1 removed the transaction from the purview of gift and cloaked it with the incidents of outright sale.

I decided to touch each of those highlighted examples of inconsistencies to demonstrate that they are not material to the case. If anything, they were minor discrepancies which were not potent enough to deflate the focus of the respondent’s case. In any event, the law gives witnesses the licence to narrate events with minute differences or they remain liable for tutoring. Thus, in the case of Owie v. Ighiwi (supra) at 29, Tobi, JSC, observed.

Human being, being not machine, does not act with the characteristic automation of machines. There could be little differences here and there when they give evidence on the same matter or event. If human beings give evidence on the same matter or event to the exact minutest details, a judge should seriously suspect such evidence because of a possibility of tutoring or rehearsal developing into recitation before he date of giving evidence. Where there are inarticulate or immaterial differences, of evidence of witness here and there, that in itself shows their truthful testimonies… See, also, Ogun v. Akinyelu (supra).

My Lords, I must place on record the time lag between the birth of exhibit A and the giving of evidence. Exhibit A came into life/being in 1980 whilst the evidence were offered in 2007 – months after its execution. In view of the time differentials, the witnesses could not be expected to deliver their parol testimonies on the events with regimented accuracy or precision. The reason is plain. Their memories faded with the passage of time. Hence, it was natural for them to offer viva voce evidence that would be dotted with slight differences which do not cast any blights on the reliability of the respondent’s case. On this score, I endorse, in toto, the unassailable finding of the lower court, which was antithetical to that of the trial court, that there were no material contradictions in the evidence of the respondent that would create doubts in his case.

The appellants castigated the admission of exhibit A as being between PW2 and PW3, the respondent, not between PW1 and PW2. Admittedly, during the evidence-in-chief of PW1, the trial court, on page 42 of the old record, recorded:

Court- The agreement for sale of piece of land between Mbaoroun Agber and Terungwa Agber is admitted in evidence and marked exhibit A.

The appellants harped on that incorrect recording. In the first place, the appellants are aware of the law that in interpreting a passage, one has to look at what precedes and what follows it in order to achieve purposeful construction, see Artra Ind. Ltd. v. NBCL (1998) 4 NWLR (pt.546) 357/(1998) 3 SCNJ 97; Unilife De Co. Ltd. v. Adeshigbin (2011) 4 NWLR (Pt.714) 609/(2001) 2 SCNJ 116; Okoye v. Kpajie (1992) 2 SCNJ; Nigerian Army v. Aminu-Kano (2010) 5 NWLR (Pt.1188) 429.

I have employed this cardinal rule of interpretation of documents so as to know the makers of exhibit A. Prior to the above extracted recording, PW1, who was in the witness box, had testified that when he gave the compound to the PW2 an agreement was written. He identified the agreement before counsel tendered it for admission in evidence. Subsequent to the plucked out recording, in the crucible of cross-examination, the PW1 gave clear testimonies indicating that exhibit A was between him and PW2. It means that the recording was a quintessence of fallibility of human beings which the law recognizes. I, therefore, hold, on the strength of these, that exhibit A was made between PW1 and PW2 and not PW2 and PW3.

Perhaps, the appellants were oblivious of the above position of the law when they picked tons of holes in the proceedings and the decision. The law does not allow the lower court to read these proceedings with a finery of a toothcomb. It merely permits it to have a very cursory examination of same with the aim of deciphering the substance of the disputation and the import of the decision. The lower court was alive to that duty of liberal interpretation of the proceedings. For this reason, I will not interfere with its finding on the marking of exhibit A so as not to defile the law.

The appellants chastised the decision of the lower court for its failure to find that an issue of family property was not before the trial court. I have, as ordained by law, given a superficial look at the proceedings in the trial court. It is clear to me that the case of respondent was not weaved around the disputed land as a family property. The respondent was consistent that he owned the land based on the mother’s (PW2’s) purchase of same for him. Incontestably, paragraphs 2 and 3 of exhibit B, a mirror of exhibit D2, alluded to it as a family property. Nevertheless, that does not advance, an inch, the case of the appellants towards success. The reason is simple. The law gives a member of a family that latitude to sue to protect a family property, see Taiwo v. Adegboro (supra). It stems from the above, that the respondent’s action against the appellants to salvage and preserve their family property is not hostile to the law. The finding of the lower court on the point is apposite and impeccable. I will not tinker with it so as not to hurt the law.

The appellant labelled the PW1 as an interested party given his relationship with PW3, the respondent. To start with, the PW1’s relationship with PW3, the respondent, and DW2, the second appellant, are co-terminous. PW1 was an in-law to DW2, PW2 and PW3.
How was he an interested party? In the eyes of the law, an interested party is a person affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings, see Maja v. Johnson (1951) 13 WACA 194; Ojukwu v. Gov. Lagos State (1985) 2 NWLR (Pt.10) 807; EFP Co. Ltd. v. NDIC (2007) 3 SC (Pt.1) 178/(2007) 9 NWLR (Pt.1039) 216. I do not see how the PW1 metamorphosed into an interested party simply because he testified for a party he asserted he sold the disputed land to. The record was void of any iota of evidence demonstrating that he would be affected or aggrieved by the proceedings in the respondent’s action. The corollary of this absence of interest is obvious. PW1 cannot be styled a tainted witness- a witness having some purpose of his own to serve, see Ojo v. Gbaroro (2006) 10 NWLR (Pt.987) 173. There is no bubble of evidence that the PW1 set out to achieve an intention that would be beneficial to him. Contrariwise, his evidence formed the touchstone for the lower court’s determination of who bought the land from him, PW2 or DW2. In the result, I dishonour the appellants’ inciting invitation to detract from the lower court’s stance and treat his evidence with circumspect.

In the light of these legal expositions, festooned with judicial authorities, the findings of the Lower Court on these points, which were diametrically opposed to those of the trial court, were unimpeachable. They do not reek of any miscarriage of justice in the sense that there is no failure on the part of the lower court to do justice, see Afolabi v. W.S.W. Ltd. (2012) 17 NWLR (Pt.1329) 286. I will be loath to tamper with such faultless findings to avert desecrating the law. All in all, I have no option than to resolve the issue (one) against the appellants and in favour of the respondent.

Having, eventually, finished with issue one, I move on to tackle issue two – whether oral evidence is admissible to vary, change and or alter documentary. The issue invites the provision of section 132(1) of the Evidence Act, Cap.E14 Laws of the Federation of Nigeria, 2004. It provides:

(1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in case in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contests of any such documents be contradicted, altered, added to or varied by oral evidence.

Interestingly, the provision is ipsissima verba with that of section 128(1) of the Evidence Act, 2011. The provision had fallen for interpretation before the Supreme Court, and same construed positively or negatively for or against parties, in bags of judicial authorities, see Ogbonna v. A.-G., Imo State (1989) 5 NWLR (Pt.121) 312, Layada v. Panalpina (1996) 715 SCNJ 1; UBN Ltd. v. Ozigi (1994) 3 SCNJ 42; Ogundipo v. Olumesan (2011) 18 NWLR (Pt.1278) 54; Babatunde v. BON (2011) 18 NWLR (Pt.1279) 738; Madu v. Madu (2008) 6 NWLR (Pt.1083) 296; Anyanwu v. Uzowuaka (supra/(2009) 13 NWLR (Pt.1159) 445; Skye Bank Plc. v. Akinpelu (supra); Mantag (Nig.) v. M.S.O. Ltd (supra); Ogbe v. Asade (supra).

It is important to note that a consideration of the issue turns, heavily, on the interpretation of the documentary evidence tendered in the matter. In this wise, the law, in order to remedy any injustice, has donated concurrent jurisdiction to this court and the lower court on evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt.943) 634; Our Line Ltd. v. S.C.C. (Nig.) Ltd. (2009) 17 NWLR (Pt.1170) 382/(2009) 9 SCM 173; Fajunwa v. Adibi (2004) 17 NWLR (Pt.903) 544; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyibo v. Abia (2012) 16 NWLR (Pt.1325) 51; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt.1328) 94; Odutola v. Mabogunje (2013) 7 NWLR (Pt.1354) 527. I will tap from this co-extensive powers in appraising the documentary evidence in the appeal.

A resume of the appellants’ grouse is that the lower court was wrong to hold that PW1, the common vendor, should have been confronted with exhibit D4, the second appellant’s agreement with him, for him to accept or deny authorship of it. I, without much ado, entirely, agree with the appellants that the PW1 would not have contradicted, altered or varied the contents of exhibit D4 by viva voce evidence even if he was confronted with it. The age-long legal axiom that a document speaks for itself still holds sway in our adjectival law in deserving circumstance such as this. The law knows that a document is not known by what a witness ascribes to it, see Yadis (Nig.) Ltd. v. G.N.I.C. Ltd. (2007) 14 NWLR (Pt.1055) 584.In a word, the idea of confronting PW1 with exhibit D4 was of no moment in the circumstance of the case.

Be that as it may, I must observe, pronto, that my agreement with the appellant, on the point, does not translate to victory for them on the whole issue. It will be recalled that the lower court, in its 10-page succinct judgment, encapsulated between pages 107-116 of the record, gave another pungent reason on the point, the chronological ages of exhibits A and D4. Evidence abound on the printed record that the second appellant, DW2, and the respondent, PW3, via exhibits D4 and A respectively, traced their roots of title to the land to PW1. That confluence of purchase makes PW1 their common vendor. It is a long established principle of law that where rival claimants to a disputed property trace their root of title to a common vendor, the first purchaser is regarded as the owner. This is expressed in the Latin maxim, quo prior est tempore, potior est jure – the first in time has the strongest title, see Auta v. Ibe (2003) 13 NWLR (Pt.837) 247; Owie v. Ighiwi (supra); Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1; Ayanwale v. Odusami (2011) 18 NWLR (Pt.1278)328; Osidele v. Sokunbi (2012) 15 NWLR (Pt.1324) 470.
As can be gleaned from the abundant evidence on record, the respondent’s exhibit A was executed on 05/11/1980 whereas the second appellant’s exhibit D4 was made on 01/01/1981. Following lunar computation, it is obvious that exhibit A was earlier in time than exhibit D4. When the two documents are juxtaposed with the above dissected current position of the law, it is axiomatic that exhibit A was stronger in law having been first executed by the common vendor, PW1.

Indubitably, by the execution of exhibit A, on 05/11/1980, the common vendor’s (PW1’s) interest in the disputed land got extinguished in favour of the PW2 who held same in trust for PW3 till he attained majority. The PW1, after 05/11/1980, was stripped of any proprietary right to bestow on the second appellant via exhibit D4. My view finds anchorage in the ageless legal maxim, nemo dat quod non habet – no one gives out what he does not have, see Ashiru v. Olukoya (supra); Dadi v. Garba (1995) 9 SCNJ 232; Omiyale v. Macaulay (2009) 7 NWLR (Pt.1141) 597; Ilona v. Idakwo (2003) 11 NWLR (Pt.830) 53; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt.1042) 364; Oronti v. Onigbanjo (2012) 12 NWLR (Pt.1313) 23; Abba v. SPDCN Ltd. (2013) 11 NWLR (Pt.1364) 86. Thus, it is safe to conclude that, even if the PW1 executed exhibit D4, he alienated nothing, in terms of proprietary rights, to the second appellant. I dare say, exhibit D4, which the second appellant brandished about, was/is a quintessence of a nudum pactum, devoid of potency.

That is not all. As already noted, exhibits A and D4 constitute the respondent’s and second appellant’s documents of title to the disputed property respectively. In the view of the law, a document of title does not automatically entitle a party armed with it, to ownership of a land. A party’s production and reliance on such an instrument, inevitably, carries with it the necessity for the court to inquire into some number of questions viz: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by its holder, see Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650; Dabo v. Abdullahi (2005) 7 NWLR (Pt.923) 181; Kyari v. Alkali (2001) 11 NWLR (Pt.724) 412; Jolasun v. Bamgboye (2010) 18 NWLR (Pt.1225) 285; Ayanwale v. Odusami (2011) 18 NWLR (Pt.1278) 328; Olaniyan v. Fatoki (2013) 17 NWLR (Pt.1384) 477.

I have carefully examined and situated the two rival documents, with these outlined questions with a view to ascertaining which confers interest in the disputed land. Exhibit A is duly signed by PW1, the seller and PW2, the buyer – who thumb printed because her evidence disclosed that she was an illiterate then. I have examined exhibit D4. I note that PW1 was constant in his evidence wherein he pleaded non est factum, that he did not sign it. I have matched the second appellant’s signature in exhibit D4 with his in exhibit B and both are at variance. In making the comparison, I take refuge under the sacrosanct provision of section 108(1) of the Evidence Act, 2004, section 101(1) of the Evidence Act, 2011, see Ndoma-Egba v. ACB (2005) 14 NWLR (Pt.944) 79. Given the fact that those signatures are denied and irreconcilable, I am of the firm view that exhibit D4 was not executed either by the PW1 or the second appellant. I am firma terra in law to draw the inference, see Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421; Adedayo v. PDP (2013) 17 NWLR (Pt.1382) 1. In the province of the law, an unsigned document commands no judicial value of validity, see Omega Bank v. O.B.C. (2005) 1 SCNJ 150/(2005) 8 NWLR (Pt.928) 547; Jinadu v. Esurombi-Aro (2009) 9 NWLR (Pt.1145) 55.The non-execution of exhibit D naturally infects its genuineness and validity.

Moreover, as already noted, PW1 was, after making exhibit A, robbed of any capacity to make any disposition in exhibit D4. This is because, he had, totally, divested himself of any right on the disputed land and, de jure, caught in the intractable web of nemo dat quod non habet. The net effect is that exhibit D4 was bereft of the effect which its holder, the second appellant, claimed it had in respect of the disputed property. I dare say, exhibit D4 was a phantom document unlike exhibit A.

On account of these reasons, laced with judicial authorities, I hold that the Lower Court’s finding, on the superiority of exhibit A over exhibit D4, is quite in keeping with the law. It is not, as canvassed by the appellants, plagued any miscarriage of justice, id est, its failure to do justice, to compel me to interfere with it. In a nutshell, I will not hesitate to resolve the issue (two) against the appellants and in favour of the respondent.

That takes me to treatment of issue three – whether the appellants’ act of possession, development and putting tenants on the land did not constitute proof of ownership. The gravamen of the appellants’ contention here is that their acts of possession, displayed on the disputed land, made them the owner of it. Are they right in that contention? I have my doubts. I must observe, apace, that both parties, deducible from their evidence, claimed possession of the disputed property. Where there are competing claims to possession of land, the law allots possession to one with a better title, see Ashiru v. Olukoya (supra); Omiyale v. Malaulay (supra); Adetona v. Zenith Int’l. Bank Plc. (supra); Ayorinde v. Sogunro (2012) 11 NWLR (Pt.1312) 460; Ameen v. Amao (2013) 9 NWLR (Pt.1358) 159. In other words, proof of ownership is akin to proof of possession, see Ayanwale v. Odusami (supra); Olaniyan v. Fatoki (supra). Possession fails where radical title fails, see Ameen v. Amao (supra); Ukaegbu v. Nwololo (supra).
I did find, under issue two, that the second appellant’s exhibit D4, the thrust of his root of title, was/is inferior to that of the respondent, exhibit A. There are no extenuating circumstances that would propel me to upset that solemn finding. Put bluntly, the appellants were unable to prove their root of title. In due obeisance to the law, their acts of possession, which they made heavy weather of, must bow to the respondent’s better title grounded on exhibit A. Since their root of title was defeated or uprooted, the stem, branches and the leaves will fall, automatically, with the root, see Chief Odofin v. Isaac Ayoola (1984) 11 SC 72 at 116. Indeed, the law views the appellants’ possession as adverse in the face of its allocation of title to the respondent, see Wachukwu v. Owunwanne (supra). For one to see the second appellant’s acts of possession as extant, when his radical title is denuded, smacks of putting something on nothing and expect it to stand. The law, roundly, frowns upon such legal and natural impossibility, see Alsthon v. Saraki (2005) 3 NWLR (Pt.911) 208. The appellants’ purported acts of possession have no plinth to perch, having lost its substratum, exhibit D4. I will be transgressing the law to crown the appellants’ acts of possession with any legitimacy. I am not prepared for that judicial sacrilege. In sum, I return a negative answer to the question posed at the dawn of this issue – the appellants’ acts of possession fall with their fallen root of title.

In the light of these, I am clear in my mind that the lower court’s finding on the issue, a departure from that of the trial court, is in tandem with the law. It does not, in the least, deserve all the strictures passed on it by the appellants. On this premise, I have no choice than to resolve issue three against the appellants and in favour of the respondent.

On the whole, having resolved the three issues against the appellants, the fate of the appeal is not a second guess. It is devoid of any jot of merit. I will penalise it with a deserved dismissal. Accordingly, the appeal is dismissed. For the avoidance of doubt, I affirm the decision of the lower court, delivered on 20/04/2011, and the orders made therein verbatim ac litteratim. The parties shall bear their respective costs they incurred in the prosecution and defence of the ill-fated appeal.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.

MOHAMMED A. DANJUMA, J.C.A.: I have been availed the benefit of reading the draft judgment of My lord Obande Festus Ogbuinya, JCA as rendered in the lead.

Having had the benefit studying the leading judgment and in particular its treatment of the three common issues formulated by the parties in this appeal, I adopt and agree with the lead judgment in the reasoning and conclusion reached that this appeal should be dismissed.

The Appellants and the Respondents in this appeal traced their root of title to a common vendor.

The common vendor has been shown from the evidence and Exhibit “A” to have executed the document conferring title on the Respondent. The Exhibit ‘D’ was neither executed by the PW1 nor the 2nd Appellant and could not therefore confer any title to the 1st Appellant.

Issue No.2 therefore must be answered in the affirmative to the effect that the content of a document in this case Exhibits ‘A’ and ‘D’ (which were documentary Exhibits) could not be altered by oral evidence as sought by the Appellants.

That being the case, the re-evaluation of evidence as done by the lower court to ensure that the wrong conclusion arrived at the trial court was obviated was correct, in law.

The 2nd Appellant raised the question of acts of possession by him and contend that it was such that a declaration of title ought have been granted to him and that the reversal of that declaration by the lower court was wrong.

In this respect, I need to emphasize that while it is the law that title to land may be proved by acts of possession, it has to be such that it can be reasonably presumed that the possession may be evidence of ownership. See, Section 46 Evidence Act, laws of the Federation of Nigeria, 2004. See also Okechukwu Vs. Okafor (1961) 1 All NLR 685 Odunukwe Vs. Ofomata (2011) All FWLR 837 per Mukhtar, JSC (as she then was). Where possession has no legal basis, it is adverse and confers no title.

The lower court had examined this acts of possession and found that the documentary basis relied on for title, which presumably triggered the possessory acts were subordinated to Exhibit ‘A’, – the Respondent’s root of title and more so as it was later in time and not executed and thus, invalid and could transfer no title let alone rank in the scale of equitable interests and was thus void. There was ample justification for the decision reversing the trial court’s judgment. I endorse the said judgment and in consequence, agree that this appeal be dismissed in terms of the consequential orders as to the affirmation of the decision of the lower court and costs as contained in the lead judgment.

Appeal dismissed.

Appearances

Ocha Ulegede, Esq., (with him, O. D. Obande, Esq. and A. T. Tionsha, Esq.)For Appellant

AND

J. J. Akaazua, Esq.For Respondent