JUMARE & ANOR v. HON. MIN., FED. CAPITAL TERRITORY ADMIN. & ORS
(2021)LCN/14935(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, January 15, 2021
CA/A/163/2015
RATIO
EVIDENCE: THE INSTRUCTIVE POSITION OF THE APEX COURT IN CLEAR TERMS IN RESPECT OF DOCUMENTS
The instructive position of the apex Court in clear terms in respect of documents such as the instant is hereunder reproduced as follows in the case of ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR. (2017) LPELR – 42346 (SC)
“It is trite and in fact well established and settled law, that instrument that are registrable but were not so registered, are still admissible in evidence IF ONLY it was meant to serve the purpose of evidencing payment of purchase price or fees but certainly not for the purpose of creating or establishing title to a land. A registrable instrument which has not been registered is also admissible ONLY to establish or prove equitable interest or to prove payment of purchase of money. See Savage v. Sorrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 22; Okoye v. Dumez Nig Ltd & Ors (1985) NWLR (Pt. 4)”. However, non-registration of a registration instrument renders such instrument inadmissible as evidence in a litigation, as in this instant case, where such instrument i.e. (Exhibit A) is relied upon as evidence of acquisition of title. See Abdallah Jammai V. Said & Fetuga 11 NLR 86; Elkali & Anor V. Fawaz 6 WACA, 272; Coker V. Ogunye (1939) 15 NLR 57; Ogunbambi V. Abowab (supra); Amankra V. Zankley 364. It is therefore not admissible evidence to prove title to the land in dispute as claimed by the plaintiff appellant. Rather, it can only be of evidential value, if and only if it was aimed at proving payment of money for purchase of land but is certainly not admissible to prove claim of title to land as done by the appellant, as rightly held by the lower Court”. PER WILLIAMS-DAWODU, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
- BALARABE JUMARE (SUING THROUGH MRS SUSAN OBAFEMI, The Administratrix Of The Estate Of His Lawful Attorney, Obafemi John Femi) 2. JOACHIM GE APPELANT(S)
And
- THE HON. MINISTER, FEDERAL CAPITAL TERRITORY ADMINISTRATION 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. ABUJA GEOGRAPHIC INFORMATION SYSTEMS (AGIS) RESPONDENT(S)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): The Appellants herein (the Plaintiffs at the Court below), have appealed against the Ruling of the High Court of the Federal Capital Territory, Abuja delivered by Hon. Justice H. Baba-Yusuf during the proceedings of the Court on March 23rd, 2015 on the admissibility of a Power of Attorney which was rejected when the Appellants sought to tender upon the objection of the Respondents (the Defendant at the Court below).
From the printed Record before this Court, the Appellants instituted an action by way of a Writ of Summons and sought the following reliefs against the Respondents (the Defendants at the Court below):
(a) A declaration that the 1st Plaintiff is entitled to the full and unencumbered use and occupation of Plot No. 306, Cadastral Zone B02, Durumi, Abuja, with File No. KT 20025 and measuring approximately 1000 SQ.M.
(b) An order removing the purported encumbrance placed by the Defendants on Plot No. 306, Cadastral Zone B02, Durumi, Abuja, with File No. KT 20025 and measuring approximately 1000 SQ.M who unlawfully placed the 1st Plaintiff’s
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title under investigation.
(c) An Order compelling the Defendants to register the Power of Attorney executed by the 1st plaintiff in favour of OBAFEMI JOHN FEMI, all relevant fees to that effect having been duly paid and received by the Defendants.
(d) An Order compelling the Defendants to issue the Certificate of Occupancy in respect of Plot No. 306, Cadastral Zone B02, Durumi, Abuja, with File No. KT 20025 and measuring approximately 1000 SQ.M to the 1st Plaintiff, all necessary fees to that effect having been duly paid and received by the Defendants.
(e) An Order awarding general damages in the sum of N20,000,000.00 (Twenty Million Naira) only in favour of the Plaintiffs against the Defendants jointly and severally.
(f) Cost of this suit in the sum of N5,000,000.00 (Five Million Naira).
At the proceedings on March 23rd, 2015, during the testimony of the PW1, learned Counsel for the Appellants, Mr. Adewale Adegboyega Esq. sought to tender through the PW1, a Power of Attorney, the learned Counsel for the Respondents raised an objection to its admissibility. That, the document which is a registrable instrument, not registered,
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should be rejected. The Appellants’ Counsel argued that the Power of Attorney was merely to show that authority was given to the Administratrix to deal with the 1st Appellant’s property and there was therefore no need for it to be registered to be used for that purpose. The Court in its Bench Ruling sustained the Respondents’ Counsel’s objection, rejected the document and marked same as such. See pages 125-127 of the Record.
Dissatisfied with the decision, the Appellants upon being granted leave to appeal on March 1st, 2016, by this Court, have approached this Court with their Notice of Appeal filed March 4th, 2016 with two (2) grounds of appeal and are seeking the following orders:
i. An order allowing the appeal.
ii. An order setting aside the part of the ruling of the trial Court delivered on 23rd March, 2015, which rejected in evidence, the Power of Attorney executed on 11th October, 2005, on the ground of non-registration.
iii. An Order directing the trial Court to admit the document in question in evidence.
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The Respondents did not file any brief of argument. The Respondents who were duly put on notice of hearing of the appeal were absent and not represented by any Counsel. The Appellants by the order of Court on September 18th, 2018 were granted leave to argue the appeal based on their brief of argument alone. Consequently, the brief of the Appellants filed on March 30th, 2016, settled by Mr. Audu Anuga, Esq. was adopted by him and he urged that the appeal be allowed.
The Appellants submitted a singular issue for determination of this appeal thus:
“Whether considering the pleadings of the Appellants and the purpose for which the document was sought to be tendered, the trial Court was not wrong to have rejected the Power of Attorney executed on 11th October, 2005 in evidence (Grounds 1 and 2)”.
SUBMISSION ON BEHALF OF THE APPELLANT
The learned Appellants’ Counsel submitted that, the Power of Attorney marked rejected by the Court which is related to the second aspect of the Appellants’ case, and is admissible. That, the facts pleaded in paragraphs 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Further Amended Statement of Claim, relate to the transaction by which the Appellants came into possession of the Res and thereby, constitute a case for equitable interest.
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That, where the rejected Exhibit is admitted, it would prove the transaction which included possession that brought about the equitable interest in the 2nd Appellant. He cited in support the cases of APPAH V. EGWUATU 2012 LPELR-20847 CAP. 22, OGUNJUMO & ORS V. ADEMOLU & ORS 1995 LPELR-2337 SC and MONKOM V. ODILI 2010 2 NWLR PT. 1179 P. 419 CA. He submitted that the transaction of sale by the Administratrix of the Estate after the demise of her husband would come to naught if the Power of Attorney is gone. He cited the case of CHEVRON NIG. LTD V. ADERIBIGBE 2012 4 NWLR PT. 1289 P. 1 CA for the three (3) conditions for admissibility of a document as follows:
(i) the document to be tendered pleaded, (ii) it must be relevant to the inquiry being tried by the Court and (iii) it is admissible in law. In addition, cited the cases of OKONJI V. NJOKANMA 1999 11-12 SCNJ 259 and ADEYEFA V. BAMGBOYE 2013 10 NWLR PT. 1363 P. 532 SC. He asserted that, the document was copiously pleaded, very crucial to the case, as relevancy is the main yardstick for determining admissibility of a document and in support cited the case of HARUNA V. A-G FEDERATION 2012 9 NWLR
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- 1306 P. 419 SC. it is relevant and cited the case of EDOHOEKET V. INYANG 2010 7 NWLR PT. 1192 P. 25 In conclusion, he urged that the appeal be allowed and the ruling set aside.RESOLUTION
The sole issue shall be reproduced hereunder for ease of reference as follows:
SOLE ISSUE
“Whether considering the pleadings of the Appellants and the purpose for which the document was sought to be tendered, the trial Court was not wrong to have rejected the Power of Attorney executed on 11th October, 2005 in evidence”.
The main issue herein is the Appellants’ position that the Power of Attorney was wrongly rejected by the Court below during the hearing of the Appellants’ case. That, it was not being tendered to establish any statutory title or legal right in the property in issue, but to prove the transaction between the Appellants and the fact of possession by the 2nd Appellant for an equitable interest. Further that, it is very relevant and crucial to the case of the Appellants and it was copiously pleaded in their claim.
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One has very carefully gone through the Record before this Court, the brief of the Appellant and in particular, the claim of the Appellants. From their pleadings, paragraphs 13, 14 15, 16 and 17, one is left in no doubt of the relevance of the said document and as submitted by the Appellants, it is not to prove a legal right in the property, but, to ensure the successful completion and conclusion of the transaction, between the 1st Appellant and the 2nd Appellant through the Administratrix of the lawful Attorney of the 1st Appellant. The document does not seek to establish the ownership of the property in focus as that of the 1st Appellant. The three (3) conditions for admissibility of a document as stated by this Court are found in respect of the Power of Attorney as follows: it was pleaded, it is relevant to the matter before the Court, and is in the center of the transactions of the Appellants. Given the plethora of judicial authorities, it is therefore admissible. As already stated, it is not to establish ownership or legal right in the property but to cause the transaction to stand. It is also important to note that, the prayer for the Respondents to register the document itself forms part of the instant appeal.
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The instructive position of the apex Court in clear terms in respect of documents such as the instant is hereunder reproduced as follows in the case of ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR. (2017) LPELR – 42346 (SC)
“It is trite and in fact well established and settled law, that instrument that are registrable but were not so registered, are still admissible in evidence IF ONLY it was meant to serve the purpose of evidencing payment of purchase price or fees but certainly not for the purpose of creating or establishing title to a land. A registrable instrument which has not been registered is also admissible ONLY to establish or prove equitable interest or to prove payment of purchase of money. See Savage v. Sorrough (1937) 13 NLR 141; Ogunbambi v. Abowab (1951) 13 WACA 22; Okoye v. Dumez Nig Ltd & Ors (1985) NWLR (Pt. 4)”. However, non-registration of a registration instrument renders such instrument inadmissible as evidence in a litigation, as in this instant case, where such instrument i.e. (Exhibit A) is relied upon as evidence of acquisition of title. See Abdallah Jammai V. Said & Fetuga 11 NLR 86; Elkali & Anor V. Fawaz 6 WACA, 272;
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Coker V. Ogunye (1939) 15 NLR 57; Ogunbambi V. Abowab (supra); Amankra V. Zankley 364. It is therefore not admissible evidence to prove title to the land in dispute as claimed by the plaintiff appellant. Rather, it can only be of evidential value, if and only if it was aimed at proving payment of money for purchase of land but is certainly not admissible to prove claim of title to land as done by the appellant, as rightly held by the lower Court”.
In the light of the foregoing, the sole issue herein is resolved in favour of the Appellants. This appeal succeeds, it is allowed, the ruling of the Court below is hereby set aside. As empowered under Section 15 of the Court of Appeal Act, the document in focus is hereby admitted as an Exhibit in the proceedings of the Appellants’ suit.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.
I agree in full with the reasoning and the conclusion that this appeal is meritorious. I too, do allow the appeal and I abide by the consequential orders as made in the lead judgment.
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YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. and I am in agreement with his reasoning and conclusion arrived at therein.
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Appearances:
Mr. Audu Anuga with him Adewale Adegboyega For Appellant(s)
…For Respondent(s)
