LABARAN ALHASSAN & ORS v. USMAN MUSA MAKAMA
(2018)LCN/12109(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/K/549/2017
RATIO
COURT AND PROCEDURE: PERVERSE JUDGEMENT
“The decision reached by the lower Court without the consideration of the evidence of the appellants is therefore perverse. A perverse decision is an unreasonable and unsupportable finding because it is wrong and completely not based on the evidence before the trial Court. See John Shoy Int. Ltd v. AFPB (2013) 8 NWLR (Pt. 1357) P. 625 @ 640 and Iwuoha v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) P. 308. When a decision is perverse, it occasions a miscarriage of justice warranting a reversal because it is reasonably probable that a result favourable to the Appellant(s) would have been reached had the totality of the evidence considered, evaluated and ascribed probative value thereto before arriving at the decision. See John Shoy Int. Ltd v. AFPB supra P. 640, wherein it had been held that, when a decision is based on perverse finding which occasioned a miscarriage of justice, same is liable to be set aside.
In Buhari v. INEC (2009) All FWLR (Pt. 459) P. 174, the Apex Court, held thus: ‘A perverse judgment is a wrong, unreasonable or unacceptable finding, having regard to the evidence before the Court. A perverse finding is one not supported by evidence before the Court. It is a finding raised on wrong assessment of the evidence before the Court. A finding of fact based on exaggerated or bloated evidence on the part of the trial Court, could be perverse. So too, finding of facts borne out of addition or subtraction from the evidence before the Court’.” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: WHERE A WITNESS TENDERS DOCUMENT
“The witness who tendered the document, that is, through whom it has been admitted, has a duty to explain the purpose for which it has been tendered. There are a plethora of the decisions of the Apex Court, and this Court, on the need to adduce oral evidence to support any document admitted in evidence by relating same to the specific issue for which the document was tendered. In Lumatron (Nig) Ltd v. FCMB (2016) LPELR 14409 P. 13, it was propounded thus: ‘The correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspects of the case for a party when that party has not done so himself. The foundation of the principle is that it is an infraction of fair hearing for the Court to do in the recesses of its chambers what a party has not himself done in advancement of his case in open Court.'” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. LABARAN ALHASSAN
2. AHMED MALLAM HARUNA
3. SALISU ALHASSAN Appellant(s)
AND
USMAN MUSA MAKAMA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Jigawa State High Court, (the lower Court) in suit No. JDU/14/2015, delivered on the 12th day of June, 2017, by A. S. RINGIM, C. J. The appellants (as defendants) were dissatisfied with the judgment, hence they filed Notice of appeal to this Court on the 27th of July 2017, which was amended and deemed duly filed on the 12th of February 2018. The appellants filed brief of argument on the 28th of February 2018, wherein two (2) issues for determination were distilled on page 6 thereof. The respondent filed brief of argument on the 29th of March 2018, and on page (1) thereof adopted the 2 issues for determination contained in the appellants? brief of argument. A Reply brief was filed by the appellants on the 9th of April, 2018.
The two (2) issues for determination in the appeal, are restructured as appearing hereunder.
ISSUE ONE (1)
Whether the learned Judge of the lower Court was right in rejecting and or expunging from the record, documents admitted in evidence as exhibits D1A, and D1B on the basis that same were neither pleaded nor tied to the case of ? the appellants, and exhibits D2A, D2B, D3A, D3B, D4A and D4B, on the ground that same were not registered as required by Sections 2 and 15 of the Land Instruments Registration Law, Jigawa State. (Grounds 7, 8 and 9 of the Amended Notice of appeal)
ISSUE TWO (2)
Whether the learned Judge of the lower Court properly evaluated the totality of the evidence adduced by the parties when he entered judgment in favour of the respondent granting title to him over the farmland situate and lying at Dantanoma in Gumel Local Government Area of Jigawa State? (Grounds 4, 5 and 6 of the Amended Notice of appeal).
ISSUE 1
Whether the learned Judge of the lower Court was right when he expunged and disregarded exhibits D1A, and D1B on the ground that same were not pleaded nor tied to the case of the appellants (as defendants), and also exhibits D2A, D2B, D3A, D3B, D4A and D4B on the basis that same were not registered as required by the provisions of Section 15 of the Land Instrument Registration Law, Jigawa State? On this issue, Habeeb Esq, of learned counsel, did submit that in order to ascertain whether there are facts pleaded to warrant the admission in evidence of the Hausa Version and English translation of the record of proceedings of the Area Court, Gumel, which are exhibits D1A and D1B, it is necessary to refer to the pleadings and statements on oath of the appellants. It is counsel’s contention that the facts in support of the admission in evidence of Exhibits D1A and D1B have been pleaded in paragraph 5 of the appellants? Amended statement of defence, which could be found on pages 174 to 180 of the printed record of proceedings of the lower Court.
Submitting further, learned counsel adumbrated that the principles of law on pleadings in Civil case require that only facts to be relied on are to be pleaded, not the evidence to be admitted in the trial. That the appellants did plead the material facts in paragraph 5 of the Amended Joint statement of defence which warranted the admission of the Gumel Area Court (Sharia Court) proceedings containing the proceedings whereat the disputed property was shared or distributed by the Area Court to the heirs. Learned counsel cited and relied on the principles of law on pleadings espoused by the superior Court in the cases of Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) @ 641, Oghoyone v. Oghoyone (2010) 3 NWLR (Pt. 1182) P. 564 @ 587 and Monier Const. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136) P. 74 @ 86, to buttress the submissions, supra.
Wakil Esq, of learned counsel to the respondent, in his response to the submissions of learned counsel to the appellants, did submit that the lower Court did not expunge the documents, exhibits D1A and D1B, on the ground that same were not pleaded, but also for the reason that they were not certified as provided by the provisions of Section 104 (2) of the Evidence Act.
It is counsel’s contention that the said document has no signature nor bearing the name of the officer who certified same. That, in view of the foregoing, the lower Court was right when it expunged the documents which was admitted in evidence as exhibits D1A and D1B.
The law is trite, only facts are to be pleaded, not evidence. The facts pleaded are the foundation for the admission of the evidence proving what have been pleaded. The general principles of law on pleadings, that is what facts are to be pleaded have been enunciated in the case of Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) P. 641 @ 655 thus:
“The general principle is that every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence but not the evidence by which those facts are to be proved. It should also be as concise as the nature of the case admits. See N. W. Salt Co. Ltd v. Electrolytic Alkali Co. Ltd (1913) 3 K. B. 425 and Philips v. Philips (1875) 4 Q. B. D. 133.”
The plaintiffs in paragraphs 9 and 10 of their amended statement of claim averred that the land in dispute was let to the father of the appellant who died in 1975 as a customary tenant who never failed to pay his annual rents to the plaintiffs’ family; that this fact is within the knowledge of the appellant and ?that receipts showing such payments by the late father of the appellant are hereby pleaded.
The receipts (Exhibits ‘D’ to ‘D4’) which are the subordinate facts are the means of proving or the evidence sustaining the payment of annual rents. They are not material facts which must be pleaded. The averments that annual rents were paid and that receipts were issued put the appellant on his guard and told him the case he was going to meet at the trial. The appellant cannot be heard to say that Exhibits ‘D’ to ‘D4′ established facts different from those pleaded or that they were not pleaded in view of the reasons given above?.
The principles of law on what are to be pleaded, in civil proceedings, have also been espoused in the case of Oghoyone v. Oghoyone (2010) 3 NWLR (Pt. 1182) P. 564 @ 587, wherein, it was held thus:
“If I may add for emphasis, facts are pleaded and documents tendered in support of facts pleaded. Facts are pleaded and not documents”.
The pleadings or averments relevant to the issue relating to the proceedings of the Gumel Area Court (Sharia Court) which have been admitted in evidence as Exhibits D1A and D1B, but expunged by the lower Court when writing the judgment can be found on pages 174 – 180 of the printed record of appeal. Paragraph 5 of the Amended statement of Defence of the appellants (as defendants) are as follows:
“That further to paragraph 4 above, late Ma’aji Kwalle Gumel after taking possession and title since 1990, enjoyed quiet and uninterrupted possession until his death on 16th August, 2001 and the subsequent sharing of his estate in accordance with Islamic tenets by the then Area Court Gumel (now Sharia Court Gumel) in 2001. The copy of the judgment in suit No. CV/320/2001 is hereby pleaded and shall be relied upon at trial.”
The averments contained in paragraph 5 of the Amended statement of Defence, reproduced supra, contained sufficient material facts warranting the admission of the Hausa and English Versions of the proceedings of the Gumel Area/Sharia Court, the documents on which the appellants relied on to prove title to the disputed property. It cannot therefore, be correct, as the learned Judge of the lower Court held, that Exhibits D1A and D1B were wrongly admitted in evidence, having not been pleaded by the appellants.
As to the requirement of certification of Exh. D1A and D1B, in order to be admissible in evidence as provided by Section 104 (2) of the Evidence Act, it is necessary to refer to the said provisions, which are thus:
(2) Such certificate as is mentioned in subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies certified shall be called certified copies.
A dispassionate examination of Exhibit D1A, on pages 232 to 245, of the record of appeal reveals that the documents were certified on the 24/9/2009 at the Gumel Court, Jigawa State. Exhibit D1B on page 246 of the printed record had been certified at the High Court, Jigawa State on 2/2/16 by one Garba Chadiya Principal Register. I am of the view that there was substantial compliance with Section 104(2) of the Evidence Act, to warrant the admission of the document in evidence by virtue of Section 104(2) of the Evidence Act. The learned Judge of the lower Court was therefore in error when he expunged exhibits D1A and D1B from the record of the lower Court, and refused to consider same in the determination of the dispute before him.
On the findings and decision of the learned Judge of the lower Court that exhibits D1A and D1B were just dumped on the Court without linking same to any aspect of the appellants’ case, Habeeb Esq, did refer to the witness statements on oath of 2nd and 3rd appellants, which can be found on pages 183 – 185, 186 – 189 of the printed record, wherein the said documents were referred to and relied on in tracing the root of title to the disputed land, having purchased same from the heirs of the Estate of Ma?adji Kwalle as distributed by Gumel Area (Sharia) Court. Learned counsel specifically cited and relied on the depositions contained in paragraphs 2 of the witness statement on oath of the 2nd appellant and paragraph 5 of the witness statement on oath of 3rd respondent, which can be found on pages 183 and 187 of the record, to buttress the submissions supra. It is learned counsel’s contention that in view of the foregoing adumbration, the decision of the lower Court that exhibits D1A and D1B were just dumped on the Court, without linking same to any specific aspect of the appellants? case, cannot be correct.
Submitting further, learned counsel did contend that, having admitted the documents in evidence as exhibit D1A and D1B, being proceedings and judgment of the Area Court, Gumel, same ought to have been considered in the evaluation of the totality of the evidence by the lower Court in arriving at a decision as to whether the appellants did establish their defence to the claims of the respondent or not, rather than expunging same as evidence before the Court. On the principles of law when a trial Court can consider and evaluate any documentary evidence before it in order to arrive at a just decision, learned counsel cited and relied on the cases of Arabambi v. Advance Beverages Ind. Ltd (2005) 19 NWLR (Pt. 959) P. 1 @ 31 and Udema v. Arunji (2012) 7 NWLR (Pt. 1298) P. 55 @ 118 to reinforce his submissions supra.
Wakil Esq, for the respondent, did submit that exhibits D1A and D1B, having been just dumped on the Court, the learned Judge of the lower Court was right in expunging same when writing the judgment. It is learned counsel’s contention that where documentary evidence has been admitted, oral evidence of the witness through whom same was tendered must be adduced to explain what the document has been admitted for, and the relevant facts being relied on. The cases of Lumatron (Nig) Ltd v. FCMB (2016) LPELR 41409 (CA) and Awuse v. Odili (2005) 16 NWLR A(Pt. 952) P. 510 were cited and relied on to buttress the submissions supra. It is counsel’s contention that the said documents, that is exhibits D1A and D1B, were just dumped on the Court without linking same to any aspect of the appellants? case. It is counsel?s further contention that where a document is admitted in evidence without oral evidence explaining its essence or purpose, it remains dormant, until activated by oral evidence of the witness who tendered same. The principles of law espoused in the cases of Lumatron (Nig) Ltd v. FCMB (2016) LPELR 41409; Awuse v. Odili (2005) 16 NWLR (Pt. 952) P. 512; Union Bank of Nigeria Plc v. Onwukwe (2017) LPELR 43279; Okereke v. Umahi & Ors (2016) LPELR 40035; A. C. N. v. Nyako (2015) 18 NWLR (Pt. 1491) P. 352 @ 395 were cited and relied on to buttress the submission supra.
The law is trite, oral evidence is required to relate or explain any document admitted in evidence to the specific aspect of the issue in dispute. It is not the duty of the Court to relate any document admitted in evidence to any aspect of the issue before it.
The witness who tendered the document, that is, through whom it has been admitted, has a duty to explain the purpose for which it has been tendered. There are a plethora of the decisions of the Apex Court, and this Court, on the need to adduce oral evidence to support any document admitted in evidence by relating same to the specific issue for which the document was tendered. In Lumatron (Nig) Ltd v. FCMB (2016) LPELR 14409 P. 13, it was propounded thus:
“The correct view of the law is that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of tying each of a bundle of documentary exhibits to specific aspects of the case for a party when that party has not done so himself. The foundation of the principle is that it is an infraction of fair hearing for the Court to do in the recesses of its chambers what a party has not himself done in advancement of his case in open Court.”
In Union Bank of Nigeria Plc v. Onwukwe (2017) LPELR ? 43229 @ 27 ? 28, it was enunciated that:
“The law is trite that Documentary evidence tendered and admitted in proof of a party’s case remains dormant, unless and until they are activated by oral evidence to allow the Court speak to them. Where the party dumps them on the tribunal or Court, without relating them to the averments in its petition, the umpire (the Court) will not discern and decide what document is meant to prove which particular averment in the petition? A. C. N v. Nyako (2015) 18 NWLR (Pt. 1491) 352 @ 395.”
The Apex Court, in the case of Okereke v. Umahi & Ors (2016) LPELR -40035 P. 65 – 66, when dealing with documents admitted in evidence without oral evidence from the witness who tendered same, had this to say:
“he should not merely dump them in the Court or Tribunal and expect the Tribunal or Court to embark on speculation in determining the purport for which it was tendered or to which aspect of the case such document relates, without being guided by any oral evidence led in open Court?.
Were exhibits D1A and D1B, dumped on the lower Court, without any oral evidence from the witness, through whom same were admitted.
At this juncture, it is pertinent to refer to the record of proceedings of the lower Court to see who tendered the documents, and through who the same were admitted in evidence. The witness statements on oath of the 2nd and 3rd appellants (defendants) can be found on pages 183 – 185 and 186 – 189 respectively, of the printed record of appeal, clearly and vividly linked exhibits D1A and D1B to the root of title of the appellants to the disputed land as having purchased same from the heirs of Ma’aji Kwalle, sequel to the distribution of the Estate by the Gumel Area (Sharia) Court. The witness statement on oath of the 2nd appellant (defendant at the lower Court) can be found on pages 183 – 186 of the printed record of appeal. Paragraph 2 thereof, is reproduced hereunder. It reads:
“That I purchased part of the farm land previously own by heirs to the late Alh. Ma’aji Kwalle Gumel from one of his heir (son) in person of Hassan Alhassan on 28th August 2010 at the price of N140,000.00 after their estate was shared to them by Sharia Court Gumel in 2001. The copy of the judgment been written in Hausa along with its True English translation are all pleaded and shall be relied upon at trial.”
The witness statement on oath of the 3rd appellant as 3rd defendant can be found on pages 186 to 189 of the printed record of appeal. Paragraph 5 thereof, is on page 187 of the record, which reads thus:
“That I know that my late uncle died on 16th August 2001 and his estate was shared to his heirs in accordance with Islamic tenets wherein Miss Maimuna Alhasan got her share of the estate which she sold to me after Sharia Court Gumel judgment in 2001. The copy of the judgment written in Hausa with its True Translated Copy in English Language shall all be relied upon at trial and hence pleaded.”
In view of the witness statements on oath of the 2nd and 3rd appellants, which have been reproduced supra, it cannot be correct to hold as the learned trial Judge of the lower Court did, that exhibits D1A and D1B, were just dumped on the lower Court, without relating same to any issue in the dispute before the Court.
On exhibits D2A; D2B; D3A; D3B; D4A and D4B, Habeeb Esq, of learned counsel, did contend that they are Sale Agreements which require no registration under the Land Registration Law. That the said documents are therefore admissible in evidence even though not registered under Section 4 of the said Law. Learned counsel cited and relied on the principles of law enunciated in the cases of Tella v. Usman (1997) 12 NWLR (Pt. 531) P. 168 @ 175; Okoye v. Dumez Nig. Ltd (1985) 1 NWLR (Pt. 4) P. 783 @ 790 and Agboola v. UBA Plc (2011) 11 NWLR (Pt. 1258) P. 375 @ 406, to reinforce the submissions supra. It is counsel’s contention that the learned Judge of the lower Court was wrong when he rejected and expunged the documents Exh. D1A to D1B, which were earlier, admitted in evidence as exhibits.
Wakili Esq, of learned counsel did submit that even if the documents were not registrable being Sale Agreements, the circumstances or the purpose for which they were tendered and admitted in evidence, that is as Deeds of Assignment, they ought to have been registered as required by the Land Registration Law. That by the averments contained in paragraph 2 of the Joint statement of defence and the amended List of Documents, the appellants conceded that the said documents are registrable Instruments.
That the appellants cannot be heard to say that Exh. D1A and D1B are mere Sale Agreement, which are not registrable Instruments. Counsel cited Section 151 of the Evidence Act, to buttress his submission that where a person, by his conduct, act or commission intentionally caused or permitted another to believe the existence of anything, he cannot at a later stage be allowed to say the contrary. That the appellants had caused the respondent and the Court to believe that the said documents were ‘Deeds of Assignment’, which are registrable Instrument, therefore registrable under Section 4 of the Land Registration Law. That the appellants are estopped from asserting that the documents are mere Sale Agreements. The principles of law espoused in A. G. Nasarawa State v. A.G. Plateau State (2012) All FWLR (Pt. 630) P. 1262 @ 1295 was cited and relied on to reinforce the submissions supra.
On the contention of the appellants’ counsel that exhibits D2A; D2B; D3A; D3B; D4A and D4B are not registrable instruments being Sale Agreement, learned counsel responded that such an assertion can only be correct in a dispute between a vendor and purchaser or a lessor and a lessee.
That in other civil proceedings, unregistered registrable instrument cannot be pleaded nor admitted in evidence to be relied on by the Court in taking a decision. That where a registrable Instrument is not registrered, if admitted in evidence, same is to be disregarded and expunged from the record of the Court at the appropriate time. The case of Jagaba & Ors v. Umar (2016) LPELR 40466 @ 32 – 33 was cited and relied on to buttress the submissions supra. Counsel further pointed out that Exhibits D2A; D2B; D3A; D3B; D4A and D4B, being unregistered registrable instruments cannot be relied on to prove an equitable interest in land which at any rate was not an issue before the lower Court. Concluding, learned counsel did urge this Court to find and hold that the lower Court rightly rejected and expunged the said documents, though same were earlier admitted as exhibits by the lower Court.
Are exhibits D2A; D2B; D3A; D3B; D4A and D4B Instruments affecting title to land. Section 2 of the Land Registration Law of Jigawa State defines ‘Instrument’ thus:
“A document affecting land whereby one party called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to, or interest in land, and include certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will”.
Exhibit D2A as well as D3A, D4A have been written in Hausa Language. These documents have been translated to English Language and are exhibits D2B, D3B and D4B. All the documents contain same wordings. Exhibit D2B is reproduced hereunder:
“SALES AGREEMENT OF PLOT
I HASSAN ALHASSAN Gumel of Kofar Fada, I hereby sell to Mal. AHMAD HARUNA my plot with No (2) at Dan Tanoma quarters, behind Islamiya School (Kungiya) which I inherited from my late father Ma?aji Kwale through Higher Sharia Court Gumel where the Estate was distributed which gave us writ of possession bearing the plot no and the boundaries.
East: Plot No. 3 (Usaini Alhassan)
West: Auwalu
South: Islamiyya
North: Road
I sold it to him at the cost of N140,000.00
Day: Friday
Date: 28/8/2010
Witnesses: Sign
1. Laminu Magini
2. Labaran Alasan
3. Jamilu Kafinta
Seller’s signature Buyer’s signature
Signed
..
Garba I. Chediyo
Prin. Reg.
22/4/2016.
How can the contents of exhibits D2A & D2B be interpreted or construed:
In Ogbimi v. Niger Const. Ltd (2005) 9 NWLR (Pt. 986) P. 474 @ 493, this Court held that what is material in interpreting a document for the purpose of the Land Instrument Registration Law, that is whether it is an instrument affecting land, and therefore registrable, is not the form the document is written but its contents. A dispassionate consideration of the contents of Exh. D2B supra, clearly reveals that it is a receipt in respect of payment for a parcel of land from the seller of the land to the buyer and or purchaser. It must be pointed out at this juncture that the appellants took possession of the lands after the payment of the price per the agreement. The said exhibit is, no doubt, not an instrument affecting title to land. It is therefore not a Registrable Instrument under the Land Registration Law of Jigawa State. It cannot transfer title to land from the seller to the buyer. However, where, as in this case, the appellant as purchaser of the land had taken possession of the land, after the payment of the value of the land, an equitable interest had been created in favour of the appellants.
Therefore, though the Sale Agreement had not been registered as required in law, it is admissible in evidence to prove that there is an agreement between the parties mentioned in the documents for the sale of the land, which has also created an equitable interest. This reinforced by the principles of law espoused in the case of Okoye v. Dumez (Nig) Ltd (1985) 1 NWLR (Pt. 4) P. 783 @ 790, wherein it was held that:
“It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent. Savage v. Sarrough (1937) 12 N.L.R 141 Ogunbambi v. Abowab (1951) 13 W.A.C.A. 22, Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All N.L.R. 74, Oni v. Arimoro(1973) 33 S.C. 163,1984 delivered on 4th April 1985, unreported yet”.
I am not unmindful of the position taken by this Court in Jagaba & Ors. v. Umar (2016) LPELR 40466 32 – 33 wherein it was espoused that:
“It is correct that the Sale Agreement qualified as an instrument affecting land and that, strictly speaking, an instrument affecting land which is registrable but has not been registered cannot be pleaded or tendered or produced in evidence and it is pleaded and inadvertently received in evidence, it should be ignored and expunged. The fact that no objection was taken as to its admissibility does not save it since its exclusion is enjoined by law”.
But, since the appellants per exhibits D2A, D3A, and D4A, paid for the land in dispute, and taken possession of same, having erected structures thereon, an equitable interest had been created in favour of the appellants, therefore, the learned Judge of the lower Court was in error when he expunged exhibits D2A, D2B, D3A, D3B, and D4A and D4B for the simple reasons that same were not registered being registrable Instruments affecting title to land. For as espoused in Jagaba v. Umar supra,
“An unregistered registrable instrument is, however, not unpleadable and inadmissible for all purposes. Where it reflects the payment of money by the grantee or purchaser and the receipt of the payment by the grantor or vendor, it is can be pleaded and is admissible as a purchase receipt
The learned Judge of the lower Court was therefore not right when he rejected and expunged exhibits D2A, D2B, D3A, D3B and D4A and D4B when writing his judgment on the basis that same were not registered being instruments affecting land as required by the Land Registration Law of Jigawa State. On the totality of the foregoing adumbration, I resolve issue one in favour of the appellants.
On issue two (2), O. I. Habeeb Esq,of learned counsel who settled the appellants? brief of argument, did contend that the learned Judge of the lower Court did not properly evaluate the evidence before him in arriving at the decision that the disputed property belonged to the respondent. Counsel further submitted that the learned Judge did not consider the evidence adduced by the appellants and their witnesses in arriving at the decision on pages 296 – 297 of the record. The principles of law on how evidence is evaluated has been propounded in the case of Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 300 cited and relied on to buttress the submissions supra.
It is learned counsel’s contention that the failure of the learned Judge to properly evaluate the evidence of all the witnesses before taking a decision on the dispute before him, is not a mere technicality but that which affected the decision rendering same perverse, occasioning a miscarriage of justice to the appellants. Learned counsel cited and relied on the principles of law enunciated in the case of Tippi v. Notani supra P. 301 – 303 to reinforce the submissions supra. Learned counsel did contend that the decision arrived at without considering and evaluating the evidence of both the appellants and the respondent is prejudicial and detrimental to the appellants, thus rendering same perverse as enunciated in Ogundepo v. Olumesan (2011) 18 NWLR (Pt. 1278) P. 57 @ 71.
Concluding, learned counsel submitted that the appellants were not given fair trial by the learned Judge of the lower Court having failed to evaluate and ascribe probative value to the totality of the evidence before arriving at the decision entering judgment in favour of the respondent. This Court has been urged to resolve issue 2 in favour of the appellants.
A. G. Wakil, Esq, of learned counsel who settled the respondent’s brief of argument did submit that the learned Judge of the lower Court properly evaluated the evidence before him in the manner prescribed in a litany of judicial authorities, such as Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 300, Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) P. 322. That the learned Judge of the lower Court firstly, evaluated the evidence of the claimant (respondent), then that of the appellants, whereby he ascribed probative value to each set of evidence, and preferring that of the respondent than that of the appellants, before arriving at the decision in favour of the respondent. Learned counsel referred to the evaluation of the evidence by the learned Judge on pages 296 to 297 and 299 to 304 to buttress the submissions supra.
It is learned counsel’s further contention that the appellants must not only establish that the learned Judge did not properly evaluate the evidence, but must further show how such non-evaluation of the evidence led to a perverse decision, occasioning a miscarriage of justice. The case of Sterling Bank Plc v. P. A. Oyoyo (2016) LPELR 41551 (CA) at 14 – 15 cited to reinforce the submission supra. In conclusion, learned counsel did contend that the learned Judge properly evaluated the evidence in arriving at the decision declaring title over the disputed land to the respondent. Moreso, when it has not been shown that the decision of the lower Court is perverse occasioning a miscarriage of justice to the appellants.
The grouse or complaint of the appellants against the judgment of the lower Court is, in the main, that the learned trial judge did not properly evaluate the totality of the evidence (that is the evidence of the appellants and the respondent), in arriving at the decision granting title over the disputed land to the respondent. What then is evaluation of evidence? Evaluation of evidence entails the trial Judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process that the Court can arrive at the proper decision of who to believe and who to disbelieve.
The belief must be a reasoned preference of one piece or version of evidence to the other. See Mogaji v. Odofin (1978) 4 SC 1, Lafia Local Government v. The Gov. of Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Ajagbe v. Idowu (2011) 91 NWLR (Pt. 1276) 422.
See also Akinbade v. Babatunde (2018) 2 NWLR (Pt. 1618) P. 366 @ 395.
The procedure for the evaluation of evidence before the ascription of probative value thereto is that the Judge considers the totality of evidence of the parties on an issue and puts the evidence on either side on an imaginary scale to see which side of the evidence outweighs the other on the scale. In coming to decision as to which evidence to believe or disbelieve, he considers other factors, including whether the evidence was discredited by cross-examination, or whether the other side made effort to challenge the evidence either by cross-examination, or by presentation or adduction of a more powerful or cogent evidence to contradict the evidence against him Mogaji v. Odofin (1974) 4 SC 91.
The well-established procedure for the evaluation of evidence, and ascription of probative value thereto had been enunciated in a plethora of judicial decision by the Apex Court and this Court. For instance, in Tippi v. Notani(2011) 8 NWLR (Pt. 1249) P. 285 @ 300, Yahaya J.C.A, propounded the principles guiding evaluation of evidence by a trial Court thus:
“Now, both counsel have made submissions on the importance of reviewing the evaluation of evidence by a trial Court. It bears repeating, that the primary responsibility of a trial Court, is to hear the parties, watch and observe the demeanor of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is not a hit and run affair, but is regulated by time-honoured procedure designed to mete out justice to both parties before the Court. The procedure is well-known, simple but crucial in its observance. The procedure is for the Court to place the totality of the testimonies led by both parties on an imaginary scale. One side of the scale will harbor the plaintiff’s evidence. The other side of the scale will contain the evidence led by the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led in its totality, is:
(a) relevant
(b) admissible
(c) credible
(d) conclusive and
(e) more probable than that adduced by the other party.
Once the above considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. Mogaji v. Odofin (1978) 4 SC 91; N. T. A. v. Anigbo (1972) 1 All NLR (Pt. 2) 74; Okino v. Obanebira (1999) 13 NWLR (Pt. 636) 535 at 558”.
The judgment of the lower Court are contained and found on pages 286 – 304 of the printed record of appeal. The learned Judge summarized the evidence adduced by the respondent (as claimant) and the appellants (as defendants) as can be found on pages 287 to 296 of the printed record of appeal. In resolving the issue, which dealt with proving the respondent’s title to the disputed land, the learned Judge found and held as follows on pages 296 to 297 of the printed record of appeal:
“The Claimant had also established his title to the portion of the farmland in dispute by proving farming, long possession and quite enjoyment of the farmland from the year 1990 to the year 2013 when the Defendants were said to have encroached into the portion of the farmland in dispute measured 22 x 18 meters by the 1st and 3rd defendants respectively and 22 x 36 meters by the 2nd defendant. It also seems to me from my careful perusal of the entire gamut of the evidence adduced by the claimant in support of his claim and my reflection on same that the identity of the farmland in dispute is not in serious question. This is against the background that the claimant has categorically stated the boundaries of the farmland in dispute before this Court as follows: East – Late Dan Iya Gangara, West – Late Alh. Iliya, North – Late Tudu Tela and South – Dan Tanoma Islamiyya Primary School. The claimant also specifically stated that the farmland in issue is measured 93 x 93 meters – square meters.
Thus, the claimant has discharged the burden of proving the identity and boundaries of the land in dispute by adducing oral evidence, and I so hold. See the case of Addah v. Uban Dawaki (2015) All FWLR (Pt. 775) P. 200 at Pp. 205 – 206 Ratio 7 where the Apex Court held, inter alia, that:
The burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan, showing clearly the area to which his claim relates
In the result therefore let me state here, without mincing words, that given the state of the claimant’s pleadings and the evidence led, the claimant has proved his claim on balance of probabilities or preponderance of evidence, hence issue No. 1 is resolved in his favour and against the defendants”.
As could be gleaned from pages 296 to 297, reproduced supra, the learned Judge in arriving at the decision that the respondent (as claimant) proved his title to the disputed land, relied only on the evidence of the respondent and his witnesses without giving due consideration to the evidence of the appellants. In other words, the learned Judge did not properly evaluate the evidence adduce by the parties in the manner prescribed by the Apex Court and this Court in the cases of Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 300; Mogaji v. Odofin (1978) 4 SC 91 @ 93; Oka v. Nigerian Army (2018) 6 NWLR (Pt. 1614) P. 176 @ 188; Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) P. 366 @ 387, and 395. It is very clear from the way and manner the learned Judge arrived at the decision in upholding the claim of title by the respondent without proper evaluation of the evidence of both sides to the dispute. The learned Judge ought to have considered the evidence of both parties by evaluating same in reaching his decision as enunciated in the case of Mogaji v. Odofin (1978) 4 SC 91 @ 93, wherein the Apex Court adumbrated thus:
“In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight. Therefore in deciding whether a certain set of facts given in evidence by a party in a civil case before a Court which both parties appear is preferable to another set of facts given by the other party, the trial Judge, after summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then, decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it.”
This Court, in Tippi v. Notani (2011) 8 NWLR (Pt. 1249) P. 285 @ 300 re-emphasized the need to consider and evaluate the evidence of both parties to the dispute in arriving at a decision. Yahaya, J. C. A, espoused that:
The procedure is for the Court to place the totality of the testimonies led by both parties on an imaginary scale. One side of the scale will harbor the plaintiff’s evidence. The other side of the scale will contain the evidence led by the defendant. The Court must then weigh them together to see which side is heavier than the other. In the evaluation of the evidence, the learned Judge of the lower Court did not give due consideration to the witness statements on oath of the 1st, 2nd and 3rd defendants (now appellants).
The appellants called 7 witnesses who testified on their behalf. The lower Court only summarized their evidence on pages 286 -296 without evaluating same vis-a-vis that of the respondent to see which set of evidence is more credible than the other.
Even if the exhibits D1A, D1B, D2A, D2B, D3A, D3B, D4A and D4B were rightly expunged by the lower Court, the evidence of the appellants adduced by the seven (7) witness i.e DW1 – DW6 ought to have been evaluated by the lower Court in addition to the evidence of the appellants given during the trial. It is an injustice to the appellants when the learned trial Judge only considered the evidence of the respondent and arrived at a decision in his favour, disregarding the evidence of the appellants. The appellants were prejudiced by the wrongful expulsion of exhibits D1A to D4B by the learned Judge of the lower Court as enunciated by the Apex Court in Ogundepo v. Olumesan (2011) 18 NWLR (Pt. 1278) P. 54 @ 71, when considering a case of similar mistrial where the Court relied only on the evidence of one party, to the exclusion of the other, in arriving at a decision. See Ogundepo v. Olumesan supra, at pages 71 – 72 where it was that:
“The Court below got it right in its assessment that from the record, it is clear that before the learned trial Judge considered part of the evidence of the respondent, he had predetermined the issues submitted for consideration by the parties. Same in my opinion has the semblance of a mistrial. The Court below did a nice job by setting such related unwholesome findings of the trial Court aside.”
The decision reached by the lower Court without the consideration of the evidence of the appellants is therefore perverse. A perverse decision is an unreasonable and unsupportable finding because it is wrong and completely not based on the evidence before the trial Court. See John Shoy Int. Ltd v. AFPB (2013) 8 NWLR (Pt. 1357) P. 625 @ 640 and Iwuoha v. NIPOST Ltd (2003) 8 NWLR (Pt. 822) P. 308. When a decision is perverse, it occasions a miscarriage of justice warranting a reversal because it is reasonably probable that a result favourable to the Appellant(s) would have been reached had the totality of the evidence considered, evaluated and ascribed probative value thereto before arriving at the decision.
See John Shoy Int. Ltd v. AFPB supra P. 640, wherein it had been held that, when a decision is based on perverse finding which occasioned a miscarriage of justice, same is liable to be set aside.
In Buhari v. INEC (2009) All FWLR (Pt. 459) P. 174, the Apex Court, held thus: “A perverse judgment is a wrong, unreasonable or unacceptable finding, having regard to the evidence before the Court. A perverse finding is one not supported by evidence before the Court. It is a finding raised on wrong assessment of the evidence before the Court. A finding of fact based on exaggerated or bloated evidence on the part of the trial Court, could be perverse. So too, finding of facts borne out of addition or subtraction from the evidence before the Court”.
A decision which is perverse occasions a miscarriage of justice, which cannot be supported on appeal, same is to be set aside. See John Shoy Int. Ltd v. APPR (2013) 8 NWLR (Pt. 1357) P. 625 @ 822. In view of the foregoing adumbration, I resolve issue 2 in favour of the appellants.
Having resolved issues 1 and 2 in favour of the appellants, the appeal succeeds. The judgment of the lower Court delivered in suit No. JDU/14/2015, on the 12th of June, 2017, is hereby set aside. The appellants are entitled to costs, assessed at N50,000.00. Same is awarded to the appellants jointly.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I was privileged and had a preview of the lead judgment of my learned brother, Justice Ibrahim Shata Bdliya, JCA which has just been delivered. I agree entirely with the lucid reasoning advanced therein which led to the conclusion reached thereat, to the emphatic effect that the instant appeal matter has merit and resoundingly deserves to be allowed. I adopt the said lead judgment as mine. Accordingly, I also allow the appeal and thereby set aside the decision of the lower Court in respect of this case which said decision was rendered on the 12th day of June, 2017.
I also endorse the Order made with regard to costs as contained in the said lead judgment of my learned brother, Bdliya, JCA.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the judgment delivered by my learned brother, Hon Justice Ibrahim Shata Bdiliya, JCA. He has brilliantly articulated and tackled the issues for consideration in this appeal. However I want to lend my voice to his, on the issue of evaluation of evidence or lack of it by the lower Court.
As a starting point, in the case of TIPPI V NOTANI (2011)8 NWLR (PT.1249) 285 AT 300 cited by my learned brother in the lead judgment, the Court most beautifully propounded the principles guiding evaluation of evidence by a trial Court. Those principles were clearly thrown overboard by the learned trial Judge in resolving the first of the two issues he formulated in the determination of the case before him in favour of the plaintiff/respondent. What he did is contrary to the admonition of the Supreme Court in the case of AJAGBE V IDOWU (2011) LPELR 279 (SC) where the Court at P.30 paras B-C held:- “A Court in evaluating evidence must take into consideration every little aspect of it and the surrounding factors. It is not for the Judge to accept evidence hook, line and sinker without weighing its preponderance and probability.”
The appellants in this case did not just defend. They called evidence tending to establish their claim to the disputed land. Even if, as held by the trial Court, the documents tendered by them were merely dumped on the Court (which I am far from believing) what happened to the evidence of the witnesses as contained in their written depositions which they respectively adopted?
The trial Judge totally ignored the appellants’ evidence believing the respondent’s evidence without stating why it preferred it to that of the appellants’. Such an approach could only result in injustice to the appellants, which indeed was the case, hence their complaint vide the instant appeal.
Therefore, I too find merit in this appeal and totally agree with the conclusions reached in the lead judgment and the consequential Order as to costs.
Appearances:
O. I. Habeeb, with him, M. Sani and F. Gobir, Esq.
For Appellant(s)
No Appearance for the RespondentFor Respondent(s)
