KEKU OLUSANYA v. MR. OSIBAMOWO
(2011)LCN/4683(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/I/173/07
RATIO
ISSUES FOR DETERMINATION: WHETHER NON-COMPLIANCE WITH THE PROCEDURE REGULATING THE FORMULATION OF ISSUES FOR DETERMINATION IN AN APPEAL WILL VITIATE THE ISSUES
Issues for determination are normally tied to grounds of appeal. But non-compliance with the Procedure would not vitiate the issues. They may still be considered on the merits in the interest of justice, especially if the other side of the divide ties the grounds of appeal to the issues, as commendably done by respondent’s learned counsel, Chief Okunuga, in respondent’s brief of argument. In other words, though the appellant did not specifically tie the issues formulated to the grounds of appeal affected by them, its rectification by respondent in his brief of argument cured the irregularity – see Kalu v. Odili (supra), ukpo v. Imoke (supra) and the other bunch of cases cited on the issue by Mr. Adetunbi in the appellant’s reply brief (supra). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ADMISSIBILITY OF DOCUMENT: POSITION OF THE LAW WHEN A PROPOSED DOCUMENT TO BE USED AT THE TRIAL IS TENDERED IN EVIDENCE
In civil proceedings, any pleaded document proposed to be used at the trial is tendered in evidence. If it is objected to by the adverse Party arguments are heard on the objection from the adverse party. Reply to the objection is then taken from the party, tendering, and the document. If the reply raises fresh legal issue(s) or new, point of law, the adverse party may have the final word on the objection. The court then rules on the objection. If it is sustained, the document is rejected in evidence and, marked “Rejected’. In the event the objection is overruled, the document is admitted in evidence and assigned a distinctive mark by numerical or alphabetical consecutive order depending on the choice of the court concerned. The document admitted in evidence may thereafter be read or taken as read by consent of the parties – see Order 37 Rules 23, 24, 75, 26 and 27 of the Rules of the court below. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ADMISSIBILITY OF DOCUMENT: WHETHER THE PROPER TIME FOR TAKING OBJECTION TO THE ADMISSIBILITY OF A DOCUMENT IS WHEN IT IS SOUGHT TO BE TENDERED
…Etim & Ors v. Ekpe & Ors (1983) 3 SC 12 at 36 thus: “It is a cardinal, rule of evidence and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.” Further, in Oguntayo v. Adelaja & Ors. (2009) 15 NWLR (pt. 1163) 150 at 190-191 cited by Mr Adetunbi for the appellant, the Supreme Court held per Ogbuagu, J.S.C., (as he was) inter-alia that: “…the learned counsel Chief Coker, procedurally, did not seek the leave of the court, or apply to tender it, as an exhibit before objection was taken or raised as to its admissibility. It is settled that the proper time for taking objection to the admissibility of a document, is when it is sought to be tendered. See the case of Lawson Jack v. The Shell Petroleum Development Company of Nigeria Ltd. (2002) 13 NWLR (pt. 783) 180… I have not seen from the records, what facts had/have already been placed before the trial court that entitled him to rule on a document that had not been tendered in evidence … There was nothing that justified the learned trial Judge in the “admissibility” of a document that was not before it.” See also Odionye v. Ayansi and. Brunton Ltd. & Ors (1953) ANLR 490 at 492 to 493, Adebakin v. Odujebe (1973) (1) NMLR 148 at 154, Babatola v. Alaworoko (2001) 5-6 SCNJ 146 at 154. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
CERTIFICATE OF OCCUPANCY: EFFECT OF A PERSON BEING GRANTED A CERTIFICATE OF OCCUPANCY OVER A PARCEL OF LAND; WHETHER THE PRESUMPTION IN LAW CREATED BY THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY CAN BE REBUTTED
… a certificate of occupancy is a public document under section 109 (a) of the Evidence Act read with our decision (Jos Judicial Division) in Simon Geri v. Agber Igbudu (2003) 5 F.R. 38 at 58-69. It is also prima-facie evidence of title to land as reinforced by the Supreme Court in the case of Madu v. Madu (2008) 2 SCNJ 245 at 262 per the lead judgment of Aderemi, J.S.C: (as he was) inter-alia thus: “Once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and, until the Certificate of Occupancy is set -aside. See Ganikon v. Ugochukwu Chem Ind. Ltd. (1993) 6 NWLR (pt. 297) 55; Documents of title are clear evidence of transaction between the parties thereto. See Atunrase & Ors v. Philips & Ors. (1995) 1 NWLR (pt, 427) 637. From the pleadings of the plaintiff/appellant, it is beyond argument that she predicated her case on document, the most important of which is the Certificate of Occupancy issued by the Federal Capital Development Authority as a result of her documentary application forwarded to the Authority. This court in its decisions in Osazuwa v.,Ojo (1991) 13 NWLR (pt. 634) 286; Shogo v. Adebayo (2000) 14 NWLR (pt 686) 121. and Ezeana v. Atta (2004) 4 properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raised the presumption that the holder is the owner in exclusive possession of the land. The Certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of , occupancy in which case the certificate of occupancy will stand revoked by the court.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION OF STATUTE: PROVISION OF SECTION 119 (1) AND (2) OF THE EVIDENCE ACT AS TO THE ADMISSIBLITY OF A SITE PLAN SHOWING THE DIMENSION OF A CERTIFICATE OF OCCUPANCY
A site plan showing the dimension of a certificate of occupancy whether called a survey plan, chart, or sketch map, duly authorized by the granting authority – State or Local Government as the case may be, – is also a public document under section 109 (a) of the Evidence Act (supra). Its admissibility in evidence is governed by section 119 (1) and (2) of the Evidence Act, which provides: “(1) All maps or charts made under the authority of any Government, or of any public municipal body, and not made for the purpose of any proceedings, shall be presumed to be correct, and shall be admitted in evidence without further proof. (2) Where maps or charts so made are reproduced by printing, lithography, or other mechanical process, all such reproductions purporting to be reproduced under the authority which made the originals shall be admissible in evidence without further proof.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
KEKU OLUSANYA Appellant(s)
AND
MR. OSIBAMOWO Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal attacks the judgment of the High Court of Justice of Ogun State sitting at Sagamu dismissing the appellant’s claim of N500,000 special and general damages for- trespass to land and for a perpetual injunction against respondent in respect of the land.
In summary, appellant sued the respondent on a writ of summons with a statement of claim seeking N500,000 special and general damages for alleged trespass by respondent and his agents, or servants, and privies on appellant’s plot of land located along Ilishan/Odogbolu road in Ikenne Local Government area of Ogun State and a perpetual injunction restraining the respondent and his cohort from committing further/future acts of trespass on the land.
Upon the settlement of pleadings, the dispute went to trial. Appellant’s evidence traced ownership of the Plot of land to inheritance from his forefathers; that the Federal Government of Nigeria Acquired the disputed strip of land for road construction, but later abandoned it, reverting the land to appellant of the Ejingbinni family, the original owners; that the respondent operates an institution of learning called O and A Academy neighbouring the disputed land; and, that the respondent uprooted all the crops planted by appellant on the land and, turned the place into playground of the O and A Academy, occasioning the suit.
The respondent’s case, briefly put, asserted that the disputed area was acquired by the Federal Highway Department during the construction of the Sagamu/Benin Express Road under the Federal Ministry of Works for the road to pass through it; but the road was diverted and the area of land abandoned by the Federal Government before the abandonment the Federal Government had cleared the area for the road to pass through it; nobody took over the land after it was abandoned by the Federal Government; it was vacant land at the time respondent took occupation of it, leveled and planted grass on it; and, that compensation was paid by the Federal Government to owners of crops on the land before it destroyed the said crops.
The court below heard the evidence on both sides of the contest, took oral addresses of their respective learned counsel, before it resolved the case against the appellant by dismissing the entire claim.
The original notice of appeal was filed on 29.10.03, outside the statutory period. On 1.7.08, the Court granted appellant an extension of time to regularize the notice of appeal on a motion on notice filed on 25.10.07. Then, on 20.1.010, appellant amended his notice of appeal by the leave of the Court. The amended notice of appeal, dated 30.12.09, but filed on 20.1.010; by order of the Court has four grounds of appeal. Appellant’s brief of argument dated 20.1.010, but filed on 22.1.010, framed three issues for determination on the appeal.
Appellant’s learned counsel, Mr. Musibau Adetunbi, articulated in the brief of argument on the first issue that parties are bound by their pleadings vide Bunge v. Governor of Rivers State (2006) 12 NWLR (pt. 995) 573, George v. Dominion Flour Mill (1963) 3 NSCC 54, Bakare v. Apena (1986) NSCC 935, Ehimare v. Emhonyon (1985) NSCC 163 at 171, Overseas Construction Ltd v. Creek Enterprises Ltd. (1985) 3 NWLR (pt, 13) 407 at 418; and that following paragraphs 2, 4, 8, 11 and 12 of the statement of claim identifying the disputed land which the respondent’s paragraphs 4, 6, 7, and 10 of the statement of defence admitted as the land in dispute, while paragraphs 11 and 12 of the statement of claim were not traversed by the respondent, the said admission needed no further proof vide Balogun v. EOCB (Nig). Ltd. (2007) 5 NWLR (Pt. 1028) 584, Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, Bunge v. Gov. of River State (supra) Overseas Construction Ltd v. Creek (1988) 1 NWLR (Pt. 69) 237 and Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676); and that the parties having known the disputed land, the issue of proof of same did not arise vide Okposin v. Assam (2005) 14 NWLR (Pt. 945) 495, Tsemudiara v. Messers. FGS and Co. Ltd (2008) 7 NWLR (Pt. 1085) 84, Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362, and Alechenu v. Oshoke (2002) 9 NWLR (pt. 773) 521.
It was submitted on the second issue that none of the parties sought to tender in evidence any document at the stage the court below ruled against the entry of the documents in evidence under Order 39 Rule 5 of the Ogun State High Court (Civil Procedure) Rules, 1988, nor is a certificate of occupancy a document contemplated by the said Rule of court, but a document showing prima-facie evidence of title to land vide Olohunde v. Adeyoju (supra) at 588, Imami v. Shanomo (2006) 4 NWLR (Pt. 969) 132 at 137 and Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562 read with the definition of “survey” in Black’s Law Dictionary (8th Edition) 1486 and the cases of Abubakar v. Yar’ Adua (2008) 19 NWLR (PT. 1120) 1, Ujam v. IMT (2007) 2 NWLR (Pt. 1019) 470 and Daniel v. Fadugba (1988) 13 NWLR (Pt. 582) 482 on the duty of the court to give ordinary grammatical meaning to words used in an enactment, as well as the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 236 on the consequences of failure of a party to honour notice to produce a document at the trial of an action, and oklobia v. Ajanya on (1988) 6 NWLR (Pt. 554) 348 at 360 the issue of wrongful admission or rejection of evidence being a final decision.
Reliance was placed on the cases of Board of Customs and Excise v. Barau (1982) NSCC 275 at 277-278, Olubodun v. Lawal (2008) 17 NWLR (Pt. 1115) 1, Williams v. CSC, Ogun State (1997) 9 NWLR (Pt 521) 416, Popoola v. Balogun (2007) 8 NWLR (Pt. 1037) 574, Bello v. Eweka (1981) NSCC 48, Ebba v. Ogodo & Anor (1984) NSCC 255, Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163 at 196-199 Hokson & Co. (Nig) Ltd v. UBN Plc (2009) 1 NWLR (Pt. 1122) 276, Tinubu v. Khalil & Dibbo Trans. Ltd (2001) 11 NWLR (Pt. 677) 171 and Olatunji v. Adisa (1995) 2 NWLR (Pt. 376) 167 to contend that the court below failed in its primary duty of evaluating the evidence adduced before it and ascribing probative value to the evidence which should render its judgment perverse.
Arguments on the third issue added that the wrongful rejection in evidence of the certificate of occupancy pleaded by appellant as his title to the land caused a miscarriage of justice to him, therefore the proviso to section 227 of the Evidence Act read with cases of Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 394 and Ojoh v Kamalu (2005) 18 NWLR (pt. 958) 523 at 515 should be invoked, as the certificate of occupancy would have proved his better title to the disputed area and entitled him to the reliefs sought in the court below vide Olohunde v. Adeyoju (supra), Anyalora v. Obiakor (2005) 5 NWLR (Pt 919) 507 at 515, Oladele v. Aribi (1998) 9 NWLR (Pt 507) 559 at 563, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373, Jokotoya v. I Onimalu (1998) 13 NWLR (Pt. 580) 157 and Edun v. Provost LACOED (1988) 13 NWLR (Pt. 580) 52 at 55
The respondent’s brief of argument prepared by Chief A. F. Okunuga of learned counsel on 17.9.010 and filed on the same date commenced with the observation that the issue for determination framed by the appellant was not tied to the grounds of appeal. Respondents learned counsel proceeded to distill three issues for determination as follows:
“(i) Whether the lower court was right when it ruled that the failure of the appellant to respond to the Notice to Produce for inspection, the Certificate of Occupancy pleaded in the Statement of Claim of the Appellant precluded – GROUND 1.
(ii) Whether the lower court was right that the appellant failed to prove the identity of the land in dispute – GROUND 2.
(iii) Whether the lower court correctly and adequately evaluated the evidence placed before it before arriving at the conclusion that the Appellant’s claims be dismissed GROUNDS 3 and 4.
Submissions on the first issue were to the result that the statement of claim did not describe the disputed area and depended on the description of the land contained in the survey plan pleaded together with the certificate of occupancy in paragraph 12 of the statement of claim and, being inseparable, the court below was right to invoke Order 39 Rule 5 of the Rules of that court (supra) against it and the survey plan pleaded by respondent in paragraph 11 of his statement of claim; that Buhari v. Obasanjo (supra) does not apply as in that case it was an issue of notice to produce the original of a document in the custody of the person to produce the document for use at the trial which entitled the opponent to use secondary evidence of the document, in the event the original was not produced, whereas Order 39 Rule 5 of the Rules of the court below (supra) is concerned with Notice to Produce for inspection before trial.
Submissions on the second issue were to the effect that reading the statement of defence as a whole with emphasis on paragraphs 10 and 11 thereof as should be the case vides Pan Asian African Company Limited v. National Insurance Company (Nig) Ltd. (1982) 9 S.C. 1 at 48, the identity of the land was put in issue or disputed by the respondent; nor did the appellant and his witnesses describe the boundaries, dimension and features of the land in their testimonies, therefore the findings of fact by the court below that the disputed land was not identified should not be disturbed.
Respondent’s submissions on the third issue advocated that reading the totality of the judgment, the court below evaluated the evidence, especially in page 47 of the record of appeal, by ascribing probative value to it and deciding in the end that the appellant did not prove the identity and exclusive possession of the land which warranted the refusal, aright, of the reliefs sought by the appellant vide Omin & ors v. Etim & Ors (2003) 6 NWLR (Pt. 817) 587 at 612 and Fatoba v. Ogundahunsi & Ors (2003) 14 NWLR (Pt 840) 323 at 342; and that a retrial is not the appropriate order to make, as it will give appellant the chance to repair his case and be oppressive to the respondent vide Chief Fagunwa & Ors v. Chief Adibi & Ors (2004) 17 NWLR (Pt. 903) 544 at 570.
Appellants reply brief dated and filed on 8.12.010, contended that the failure to expressly link the issues for determination to the respective grounds of appeal is a mere irregularity which does not render the issues bad as the said issues actually arose from the grounds of appeal as acknowledged by respondent in his brief where he tied the issues framed by him to the grounds of appeal vide Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130 at 167, Iwuola v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 1 NWLR (Pt. 822) 1 NWLR (Pt.1123) 505 at 510 Magar v. Yusuf (2009) 17 NWLR (PT 1169) 163, Minister, Federal Ministry of Housing and Urban Development v. Bello (2009) 12 NWLR (pt. 1155) 352 at 360 and Ukpo v. Imoke (2009) NWLR (pt 1121) 110 at 129,
The reply brief finally contended that the appellant had not sought for an order of court in respect of the pleaded documents as he did not tender them, in evidence, consequently the court below was wrong to rule on their admissibility before they were tendered in evidence vide Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 358 Olurotimi v. Ige (1993) 8 NWLR (Pt. 311) 257 at 259, Edebiri v. Edebiri (1997) 8 NWLR (Pt. 498) 165 at 167, Oguntayo v. Adelaja (2009) (pt. 1163) 150 at 158, Civil Procedure in Nigeria by Fidelis Nwadialo (2nd Edition) page 639 at 641 on the scope of Notice to Produce under the Evidence Act in contradistinction to “opportunity to inspect” under the relevant Rules of the court below (supra), and Kalu v. Odili (supra) on the scope of miscarriage of justice said to have arisen from the foreclosing of the admission in evidence of a vital document in the case.
Issues for determination are normally tied to grounds of appeal. But non-compliance with the Procedure would not vitiate the issues. They may still be considered on the merits in the interest of justice, especially if the other side of the divide ties the grounds of appeal to the issues, as commendably done by respondent’s learned counsel, Chief Okunuga, in respondent’s brief of argument. In other words, though the appellant did not specifically tie the issues formulated to the grounds of appeal affected by them, its rectification by respondent in his brief of argument cured the irregularity – see Kalu v. Odili (supra), ukpo v. Imoke (supra) and the other bunch of cases cited on the issue by Mr. Adetunbi in the appellant’s reply brief (supra). The respondent having tied the issues for determination to the respective grounds of appeal in his brief of argument, I would respectfully follow the said issues in the determination of the appeal.
The crisis that afflicted the proceedings in the court below started with the importation of Order 39 Rule 5 of the High Court (Civil Procedure) Rules of Ogun state into the dispute which, for convenience, is copied below:
“Unless, at or before the trial, the court or a judge in chambers for special reasons otherwise orders or directs, no plan, photograph or model shall be receivable in evidence it the trial of an action unless at least ten days before the commencement of the trial of an action the parties, other than the party producing it, have been given an opportunity to inspect it and agree to the admission thereof without further proof”
The introduction of Order 39 Rule 5 of the Rules of the court below (supra) in the proceedings arose out of exchange of words of observation between the learned counsel for the respective parties recorded in pages 21- 22 of the record of appeal/the record) unedited this way:
“Otunba Adeleke Adedoyin. The defendants pleaded in paragraph 11 of their statement of Defence the survey plan which they said they will be relying upon at the trial of this suit and up till now we have not been served a copy of that survey plan. So I will want to know what their attitude is either we go on with this case and we abandon the survey plan or they seek an adjournment for them to file the survey plan because without filing the survey plan for us to peruse through, we shall definitely object to its being tendered. Mr. Odunaike – In spite of my serving the plaintiff and with notice to produce the certificate of occupancy and the original agreement dated 11th August, 1977 between Plaintiff and Mr. Adeniyi Akinmosu but up till now, the plaintiff has not served me any document. The plaintiff did not serve me notice to produce any document and so I am not bound to produce any document. I therefore urge the court to proceed with this case. If I seek to tender any document and he objects, I will answer him.
Otunba Adeleke Adedoyin – I am anchoring my submission on Order 39 Rule 5 of the High Court Rules. Mr. Odunaike – The Plaintiff’s counsel has not served me the documents I gave him notice to produce.
If he is asking me to abandon the survey plan which I pleaded. I will also be asking to abandon the Certificate of Occupancy which he pleaded in paragraph 12 of his statement of claim with the survey plan attached to it.
COURT RULING:- since neither of the parties has given the other the document each of them pleaded and the trial has commenced, in view of the provision of Order 39 Rule 5 it would appear that each of the parties is prepared to abandon the respective paragraphs concerning the documents pleaded.
This tantamount to the fact that since none of the documents pleaded have been given to either of the parties to give each of them the opportunity of inspecting it, neither of them could tender any of the documents referred to in this trial.”
In civil proceedings, any pleaded document proposed to be used at the trial is tendered in evidence. If it is objected to by the adverse Party arguments are heard on the objection from the adverse party. Reply to the objection is then taken from the party, tendering, and the document. If the reply raises fresh legal issue(s) or new, point of law, the adverse party may have the final word on the objection. The court then rules on the objection. If it is sustained, the document is rejected in evidence and, marked “Rejected’. In the event the objection is overruled, the document is admitted in evidence and assigned a distinctive mark by numerical or alphabetical consecutive order depending on the choice of the court concerned. The document admitted in evidence may thereafter be read or taken as read by consent of the parties – see Order 37 Rules 23, 24, 75, 26 and 27 of the Rules of the court below.
The above established universal elementary practice was not followed by the court below before making its ruling. It jumped the gun or put the cart before the horse by ruling on the admissibility of the certificate of occupancy pleaded by the appellant before same would be tendered in evidence. In effect, the court below ruled on what was yet to be offered in evidence before it. I think, with deference, that the court below acted hastily and prematurely in ruling against the future use of the pleaded certificate of occupancy in evidence by its invocation of Order 39 Rule 5 of the Rules of the court below (supra) when it was not formally tendered before it. See by analogy Etim & Ors v. Ekpe & Ors (1983) 3 SC 12 at 36 thus:
“It is a cardinal, rule of evidence and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.”
Further, in Oguntayo v. Adelaja & Ors. (2009) 15 NWLR (pt. 1163) 150 at 190-191 cited by Mr Adetunbi for the appellant, the Supreme Court held per Ogbuagu, J.S.C., (as he was) inter-alia that:
“…the learned counsel Chief Coker, procedurally, did not seek the leave of the court, or apply to tender it, as an exhibit before objection was taken or raised as to its admissibility. It is settled that the proper time for taking objection’ to the admissibility of a document, is when it is sought to be tendered. See the case of Lawson Jack v. The Shell Petroleum Development Company of Nigeria Ltd. (2002) 13 NWLR (pt. 783) 180…
I have not seen from the records, what facts had/have already been placed before the trial court that entitled him to rule on a document that had not been tendered in evidence … There was nothing that justified the learned trial Judge in the “admissibility” of a document that was not before it.”
See also Odionye v. Ayansi and. Brunton Ltd. & Ors (1953) ANLR 490 at 492 to 493, Adebakin v. Odujebe (1973) (1) NMLR 148 at 154, Babatola v. Alaworoko (2001) 5-6 SCNJ 146 at 154.
In my considered opinion, the court below was, with deference, preemptive to rule on the heated dialogue between the learned counsels for the respective parties foreclosing the tender of evidence on the pleaded certificate of occupancy at that premature stage of the proceedings when the document had not been tendered in evidence.
Furthermore, a certificate of occupancy is a public document under section 109 (a) of the Evidence Act read with our decision (Jos Judicial Division) in Simon Geri v. Agber Igbudu (2003) 5 F.R. 38 at 58-69. It is also prima-facie evidence of title to land as reinforced by the Supreme Court in the case of Madu v. Madu (2008) 2 SCNJ 245 at 262 per the lead judgment of Aderemi, J.S.C: (as he was) inter-alia thus:
“Once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and, until the Certificate of Occupancy is set -aside. See Ganikon v. Ugochukwu Chem Ind. Ltd. (1993) 6 NWLR (pt. 297) 55; Documents of title are clear evidence of transaction between the parties thereto. See Atunrase & Ors v. Philips & Ors. (1995) 1 NWLR (pt, 427) 637.
From the pleadings of the plaintiff/appellant, it is beyond argument that she predicated her case on document, the most important of which is the Certificate of Occupancy issued by the Federal Capital Development Authority as a result of her documentary application forwarded to the Authority. This court in its decisions in Osazuwa v.,Ojo (1991) 13 NWLR (pt. 634) 286; Shogo v. Adebayo (2000) 14 NWLR (pt 686) 121. and Ezeana v. Atta (2004) 4 properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raised the presumption that the holder is the owner in exclusive possession of the land. The Certificate also raises the presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of , occupancy in which case the certificate of occupancy will stand revoked by the court.”
A site plan showing the dimension of a certificate of occupancy whether called a survey plan, chart, or sketch map, duly authorized by the granting authority – State or Local Government as the case may be, – is also a public document under section 109 (a) of the Evidence Act (supra). Its admissibility in evidence is governed by section 119 (1) and (2) of the Evidence Act, which provides:
“(1) All maps or charts made under the authority of any Government, or of any public municipal body, and not made for the purpose of any proceedings, shall be presumed to be correct, and shall be admitted in evidence without further proof.
(2) Where maps or charts so made are reproduced by printing, lithography, or other mechanical process, all such reproductions purporting to be reproduced under the authority which made the originals shall be admissible in evidence without further proof.”
A calm view of Order 39 Rule 5 of the Rules of the court below, therefore shows, in my considered opinion, that it does not apply to public documents such as a certificate of occupancy or a survey map accompanying a certificate of occupancy. The court below was quite wrong to have invoked Order 39 Rule 5 of its Rules to shut out of the suit the certificate of occupancy with the survey map following it.
Besides, and in my modest view; Order 39 Rule 5 of the Rules of the court below is a pre-hearing device merely intended to fast-track proceedings by eliminating the element of surprise and saving the time and cost of the parties who would have had the opportunity of seeing and knowing in advance the full contented of the pleaded document and forming an opinion on it either way-to object or not to object to its admissibility – before it is tendered in evidence.
Non-compliance with Order 39 Rule 5 of the Rules of the court below might, therefore, have been remedied by adjourning the proceedings on terms as to costs for the defaulting party to rectify the omission; or the default could have been cured by treating the non inspection of the pleaded document as a mere irregularity incapable of nullifying the document under Order 2 Rule 1 (1) of the Rules of the Court below; not the foreclosure of the entry of the pleaded document in evidence as was, in my view, wrongly done by the court below. See Saleh v. Monguno & Ors (2006) 7 SCNJ 236 at 255 thus:
“But the clear spirit of these provisions and Order 2 Rule 1 (1) is that, in the application of the High Court Rules, the courts are enjoined to ensure substantial justice between parties, After all, law including Rules of court is not and should not be regarded as an end in itself, it is only a means to an end which is justice. The courts will not therefore insist on strict compliance with any particular Rules of court if such strict application would inflict outright injustice. That has been the focus of this court over the years. In Oloba v. Akereja (1998) 2 NSCC 120 at 136 this court per Oputa, J.S.C., emphasized the very purpose of rules of court as follows:
“All Rules of Court are made in aid of justice. That being so the interest of justice will have to be given paramount over Rule compliance with which will lead to outright injustice.”
By way of recapitulation, the notice to produce was made in page 19 of the record and was predicated on Civil Form 33 of the Rules of the court below which, in turn, is based on Order 32 Rule, 15 of the Rules of the court below (taken judicial notice of under section 74 (1) (a) of the Evidence Act) to wit:
“Notice to any party to produce any documents referred to in the pleadings or affidavit shall be in Form 33 with such variations as circumstances may require.”
The notice to produce for inspection was, accordingly, made under the Rules of the court below, not pursuant to the Evidence Act, and was treated as such by the court below under order 39 Rule 5 of its Rules, therefore arguments on the provisions of the Evidence Act in respect of notice to produce a document are, in my opinion, I misconceived and are hereby discountenanced.
Also, unless there is a subsisting order of court for the inspection of documents and same is disobeyed by a party before the court would act on the matter. In the present case, there was no order of the court below on the notice of inspection of documents; therefore the court below tacked the vires to punitively pronounce on the failure of the parties to exchange the affected documents for inspection by them.
Even where there is a subsisting order of court on the inspection of documents, disobedience of the order may invite the consequences of either committal of the defaulting party for a contempt of court, or if the defaulting party is a plaintiff, his action may be likely or liable to be dismissed for want of prosecution, which is not a dismissal on the merits; not an order of the court stopping the defaulting plaintiff from tendering in evidence the documents sought for inspection – See the judicially noticed Order 32 Rule 20 of the Rules of the court below which, for ease of reference, I copy below:
“If a party fails to comply with any order to answer interrogatories or for discovery or inspection of documents, he shall be liable to committal. Hg shall, also if a plaintiff be liable to have his action dismissed for want of prosecution, and if a defendant, to have his defence, if any, struck out and to be placed in the same as if he had not defended, and the party interrogating may apply to the Court or a Judge in Chambers for an order to that effect, and an order may be made accordingly:” (my emphasis).
See also Odgers principles of Pleading And Practice in Civil Actions in the High Court of Justice (Twenty-First Edition) at 228 – 229, citing in aid the English case of Solomon v. Holg (1905) 53 W.R. 588, and the English Court of Appeal case of Samuels v. Linzi Dresses Ltd. (1980) 1 ALL E.R. 803 or (1991) Q.B 115 to the effect that an application has to be made before Order 32 Rule 20 of the Rules of the court below may be invoked, and, that any action so dismissed is not dead. It can be revived by an extension of time for compliance with the order for inspection.
The record of appeal disclosed in pages 24, 37 and 41 that the renewed effort by appellant’s learned counsel in the court below to tender the pleaded certificate of occupancy with the survey map accompanying it was erroneously rejected or blocked by the court below, supposedly on the platform of its earlier ruling on order 39 Rule 5 of its Rules.
Paragraph 12 of the statement of claim had pleaded both documents thus:
“12. The plaintiff avers that over his said land he had obtained a certificate of occupancy No. 021348 registered as No. 70 at page 70 in volume 518 (certificate of occupancy) of the Lands Registry in the office at Abeokuta to which is attached survey plan No. OLS 735/09/92 drawn by A.O. Orepitan Licensed Surveyor and dated 15.6.92. The plaintiff shall rely on this certificate of occupancy at the hearing of the action”‘
Paragraph 10 of the statement of defence traversed it in these words:
“10. With respect to paragraph 12 of the statement of claim the Plaintiff might have obtained the certificate- occupancy by giving Wrong information.”
The court below acknowledged in page 47 of the record, aright, in my view, that the half-hearted or weak traverse of paragraph 12 of the statement of defence (supra) was not a denial by the respondent that the appellant had obtained a certificate of occupancy covering the disputed tract of land.
The said admission did not, in my opinion, require further proof that the appellant was in possession of the dispute plot of land on the strength of the pleaded and admitted certificate of occupancy – see sections 75 and 97 (1) (b) of the Evidence Act and the cases of Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) 1 F.N.R 80, Edosonwan v. Ogbeyfun (1996) 4 SCNJ 21, Economides v. Thomopulous (1956) 1 FSC 7, Ikoku v. Ekenkwu (1995) 7 NWLR (PT 410) 637, Akintola v. Solano (1986) 2 NWLR (24) 589, Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26, Ehimare v. Emohonyon (1985) 1 NWLR (Pt.2) 177, Anason Frams Ltd. V. Nal Merchant Bank (1994) 3 NWLR (Pt 331) 241 at 252, and Meridien v. Metal Construction Co. (1998) 3 SCNJ page 1.
A certificate of occupancy duly issued by the issuing authority to a holder is prima-facie rebuttable evidence of title to or ownership of the land space covered by it, and can be utilized in proof of title to a disputed piece of land to which it relates – see Dabup v. Kolo (1993) 9 NWLR (PT. 316) 254 at 269 – 70; International iles Industries (Nig) Ltd v. Aderemi & Ors (1999) 6 SCNJ 46 at 73, Olohunde & Anor v. Adeyoju (2000) 6 SCNJ 470 AT 493, Ilona v. Idakwo & Anor (2003) 5 SCNJ 330 AT 351, Ezeanah v. Atta (2004) 2 SCNJ 2000 at 22, Ganikon v. Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt. 297) 55, Atunrase & Ors v. Philips & ors (1996) 1 NWLR (Pt. 4277) 637, Madu v. Madu (supra) at page 262, and Adole v. Gwar (supra).
The pleaded and admitted certificate of occupancy together with the survey map attached to it were invaluable means of proving ownership and dimension or identity of the disputed piece of land, in my view. Had the court below not wrongly scuttled the chance and right of the appellant to tender the two documents in evidence, their admission in evidence as Exhibits might have had a decisive impact on the outcome of the suit by tilting the civil scale of justice in appellant’s favour .
In other words, the appellant had the necessary materials in the certificate of occupancy and the survey map to prove his title and identity of the disputed land respectively, but was frustrated by the decapitation of the said vital means of proof by the erroneous refusal of the court below for him to tender in evidence the pleaded and admitted certificate of occupancy and its survey map on the footing of Order 39 Rule 5 of the Rules of the court below (supra).
The wrongful procedural handling of the proceedings by the court below, not the failure of the appellant to prove his case, led to the court below erroneously entering judgment against the appellant when it held inter-alia in pages 47 – 48 of the record, unedited, that:
“…the fact still remain that the said certificate of occupancy to which was attached the survey plan, though pleaded in the statement of claim was not before the court and there is no credible evidence before the court by any of the witnesses of the plaintiff of the description of the land or the title of the plaintiff to the land. The land which the plaintiff to be in his lawful possession is therefore not identified, neither is the plaintiff’s title over the unidentified land from which his lawful possession could have been inferred proved. The defendant could not be said to have trespassed on such a land. The plaintiff’s claim for general damages has therefore not been proved…. In the circumstances, the plaintiff’s claim for special and general damages fails… The claim for perpetual injunction against the defendant also fails…
On the whole, the plaintiffs action fails and is accordingly dismissed.”
In my considered view, the court below would not have arrived at the above adverse or damaging findings and conclusion if it had not unduly obstructed the appellant from tendering in evidence the certificate of occupancy with the survey map, which were not denied by the respondent. That the appellant had a substantial case to present but was crippled by the unwananted invocation of order 39 Rule 5 of the Rules of the court below by that court is manifest from the pleaded and undenied certificate of occupancy and survey map (supra).
Consequently, the error that drove the court below to enter judgment against the appellant was not attributable to lack of evidence to prove the appellant’s case, but on the misdirection of the proceedings by the court below which led to the shutting out of the certificate of occupancy and the survey map from the case under the misapplied Order 39 Rule 5 of the Rules of the court below
On the issue of identity of the disputed land, respondent did not, as rightly submitted by Mr. Adetunbi for appellant, make it an issue of controversy on the pleadings signifying the ad idem of the parties on the identity of the disputed land and removing doubt on, same accordingly – see Ezeudu & Ors v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 220; Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297, and Iso & Ors v. Eno (2003) 7 SCNJ 82.
And, on the matter of evaluation of evidence by the court below all depends on the varying style of trial courts, with emphasis, however, on assessment of evidence on crucial issues by a trial court at the end of the exercise, which the court below performed satisfactorily by assigning reasons for its dismissal of the suit for damages for trespass to the disputed land and permanent injunction in pages 4748 of the record. Chief Okunuga for the respondent is, accordingly, on firm ground in his submission that the court below evaluated the evidence, which was, however, based on the inchoate case before it.
The contention that a retrial may afford the appellant the opportunity of repairing his case does not impress me. First, the appellant was not allowed to put in his whole evidence in the suit by the wrongful act of the court below that placed a roadblock in the way of tendering the vital pieces of evidence – the certificate of occupancy and the survey map – in evidence, which might have had profound positive effect on the outcome of the case in appellant’s favour. Therefore, the appellant cannot be accused of inability to prove the case in the court below. Rather the appellant was denied and stripped of the vital means in his arsenal to prove the case by the court below, in my view.
A retrial may be ordered in a civil action or appeal if the appellant had a substantial case, but was prevented from proving his case by the misbehavior of the trial court either in the conduct of the proceedings or wrongful rejection of vital or material piece of evidence, which appellant had shown robbed him of the chance of success in the court below and occasioned substantial Wrong or substantial miscarriage of justice to him – see Ezeoke & Ors v. Nwagbo & Anr (1988) 3 SCNJ (Pt.1) 37 at 49 per the lead judgment of Nnaemeka-Agu, J,S.C. (as he was, but now of blessed memory) thus:
“Of course it cannot be doubted that such an order (retrial) can be properly made upon proper grounds, such as when a judge misdirects himself as to the nature of a party case or upon wrongful admission or rejection of material evidence, or a admission been taken by surprise; or on grounds of misbehavior of the Judge; and when the court makes a wrong approach to the assessment of evidence, such as when it fails to resolve the conflicts in the evidence”
See also the leading English case of Bray v. Ford (1896) A.C. 44, Ajayi v. Fisher (1956) 1 F.S.C. 90, Lioner Barber & Co. v. Deutche Bank (1919) A.C. 304, Shehu v. Ogedengbe (1960) 5 F.S.C. 266.
Still on the issue of the case of retrial, it is important to refer to the case of Bakare v. Apena & Ors (1986) 4 NWLR (Pt. 33) 1 at 16 to 17, where Nnamani, J.S.C. (as he was, but now of blessed memory) held in the lead judgment inter-alia that:
“To return to the instant appeal, it must be conceded that the appellant is in, no way responsible for the events that have now enveloped the judgment of 9th March….. Nevertheless, I do not think that a retrial would be so oppressive on him as to amount to a miscarriage of justice. He would have equal opportunity with the respondents to present his case before a new Judge and one assumes that he would want to win in circumstances which would raise no eyebrows”‘
See again Bamidele v. Adeyemi (1963) 1 ALL NLR 146 at 148.
I conclude that the appeal is meritorious. I hereby allow it and set aside the judgment of the court below (Adesida, J.). A retrial of the case is ordered before another learned Judge of the High Court of Justice of Ogun State to be chosen by the learned Chief Judge of Ogun State. Parties to bear their costs.
STANLEY SHENKO ALAGOA J.C.A.: I have had the opportunity reading in draft the judgment just delivered by my learned brother Ikyegh, J.C.A. I agree with his reasoning and conclusion that the appeal has merit and should be allowed. I allow same and set aside the judgment of the lower court. I also order a retrial of the case by another Judge of the High Court of Justice of Ogun State and abide by other consequential order(s) made in the lead judgment.
SIDI DAUDA BAGE, J.C.A.: I had the advantage of reading in draft the meticulous judgment of my learned brother J.S IKYEGH J.C.A., and I agree entirely with all the findings and the conclusion reached at the lead judgment. I intend only to add a few words of my own on the consideration of the fairness of a proceeding.
The question of fairness of a proceeding is quite separate from the question of the merit of the trial court’s Decision. When a question of fairness of hearing arises in a case the only purpose that could have been served by the Appellate court considering albeit in a restricted manner issues of the merits of the case, is to see whether the result of the case would have been the same even if the breach of the principles of fair hearing had not occurred. Whether that exercise will serve any useful purpose will normally depend on the nature of the breach. Where it will be a matter of speculation whether the same Decision would have arrived at had a hearing not tainted by unfairness taken an enquiry into the merits is a futile exercise. See: – Idakwo vs. Ejiga (2002) 7 S.C. (Pt. 11) 168; Akilu vs. Fawehinmi (1989) 2 NWLR (Pt. 102) 122; Attorney General vs. Foley and another (2000) 2 ALL ER 609; Mahon and another vs Rahn and others (1997) 3 All ER 687; R. vs. Governor of Brixton Prison explevin (1997) 3 All ER 286; Johnson vs Valks (2000) 1 All ER 450; Tinubu vs. IMB SECURITIES (2001) 8 MJSC 1 or (2001) 910 SC. 49; HALKI Shipping Corp. vs Sopex Oils Ltd (1997) 3 AII ER 833.
In line with the lead judgment, I also conclude that the appeal is meritorious. I hereby allow it and, set aside the judgment of the court below (Adesida, J.) I also ordered a retrial of the case before another learned judge of the High court of justice of ogun state to be chosen by the learned chief Judge of Ogun State. I abide by the Order as to costs contained in the lead judgment.
Appearances
MR. MUSIBAU ADETUNBIFor Appellant
AND
CHIEF A. F. OKUNUGAFor Respondent
