LAWAL & ORS v. NUBI & ANOR
(2022)LCN/17022(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/IB/68/2017
Before Our Lordships:
Folasade Ayodeji Ojo Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. CHIEF SARAFA LAWAL 2. ALHAJI TAJUDEEN OSUNBA 3. SURAJU AFOLABI ODUNSI (For Themselves And On Behalf Of Isosanyin Family Of Isheri Olofin, Ogun State) APPELANT(S)
And
1. MR. WILSON ABAYOMI NUBI 2. MRS. OLUREMI OMOSOLAPE NUBI RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHERE A PRELIMINARY OBJECTION IS RAISED
It is trite that a Preliminary Objection is raised to the hearing of an appeal and not to a few grounds of Appeal. The purpose of a Preliminary Objection is to truncate the hearing of an appeal in limine. Where there are other grounds to sustain the appeal other than those complained about, what is required of the Respondent is to file a Motion on Notice. The complaint of the Respondent in the instant appeal is against some grounds of Appeal and was found meritorious it would not terminate the appeal. This procedure adopted by the Respondents is incompetent and I so hold.
A competent Preliminary Objection is one raised in accordance with due process of law. See AJUWON VS. GOVERNOR OF OYO STATE (2021) 16 NWLR (PT. 1803)485; NIGERIAN UNION OF TEACHERS, TARABA STATE VS. HABU (2018) 15 NWLR (PT. 1642)381; ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 AND NIGERIAN NATIONAL PETROLEUM CORPORATION VS. FAMFA OIL LIMITED (2012) 17 NWLR (PT. 1328) 148.
It is further the law that where a Respondent raises a Preliminary Objection in his Brief of Argument, such Objection cannot be deemed argued along with the Brief. The Respondent is required to seek leave of Court to move the objection before the appeal is argued. Where a Respondent fails to seek the leave to argue his Preliminary Objection, it is deemed abandoned and liable to be struck out. See SUBERU VS POLARIS BANK LIMITED (2020) 9 NWLR (PT. 1728)79; ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450; UCHA VS ELECHI (2012) 13 NWLR (PT. 1317)330 AND ATTORNEY-GENERAL RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008)436. PER AYODEJI, J.C.A.
WHETHER OR NOT ONLY CERTIFIED TRUE COPIES OF PUBLIC DOCUMENTS ARE ADMISSIBLE IN LEGAL PROCEEDINGS
The law is that only certified true copies of public documents are admissible in legal proceedings. It is however further the law that documents attached to an affidavit form part of the affidavit and constitute admissible evidence which must be given weight where the contents thereof are not in dispute. See ZAKHEM OIL SERVE LIMITED VS. ART-IN-SCIENCE LIMITED (2021) 18 NWLR (PT. 1808) 341; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724)430; EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506)529; SHITTA-BEY VS. ATTORNEY-GENERAL OF THE FEDERATION (1998) 10 NWLR (PT. 570)392 AND SOUTH-EASTERN STATE NEWSPAPER CORPORATION & ANOR VS. ANWARA (1975) LPELR- 3107 (SC).
In AONDOAKA VS. OBOT (2022) 5 NWLR (PT. 1824) 523 AT 599, PARAGRAPHS B-F, PETER-ODILI, JSC held as follows:
“The Appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents. The point has to be made that copies of public documents attached to an affidavit as Exhibits need not be certified true copies because the documents already form part of the evidence adduced by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible. Again to be said is that such, documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the Appellant did not disown his signature on the document he is contending ought to have been certified. I refer to ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373; ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848)1; OGU VS. M.T. & M.C.S. LTD.(2011) 8 NWLR (PT. 427) 713; ILORIN EAST L.G. VS. ALASINRIN (2012) LPELR 8400 AND B.A.T. (NIG.). LTD. VS. INT’L TOBACCO CO. PLC (2013) 2 NWLR (PT. 1339) 493.” PER AYODEJI, J.C.A.
WHETHER OR NOT UNCONTROVERTYED FACTS CONTAINED IN AN AFFIDAVIT REQUIRES PROOF
It is trite that uncontroverted facts contained in an affidavit are taken as true and require only minimal proof. See UNION BANK OF NIGERIA PLC VS. PETRO UNION OIL & GAS CO. LIMITED (2022) 7 NWLR (PT. 1829)199; DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703)25; PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD VS. GOSHWE (2013) 2 NWLR (PT. 1338)338; CAPPA AND D’ALBERTO LIMITED VS. AKINTILO (2003) 9 NWLR (PT. 824)49. PER AYODEJI, J.C.A.
INSTANCES WHERE THE APPELLATE COURT WILL BE ALLOWED TO INTERFERE WITH THE DISCRETION OF A LOWER COURT
It is trite that an Appellate Court will not interfere with the discretion of a lower Court properly exercised. It will however interfere in the following instances:
(1) Where the discretion was not exercised in accordance with the law.
(2) Where the discretion of the lower Court is perverse.
(3) Where the lower Court acted under a misapprehension of the law.
(4) Where the lower Court acted under a misapprehension of the facts.
(5) Where the lower Court omitted to take into account matters that are relevant.
(6) Where the discretion is exercised on wrong or inadequate materials.
(7) Where it is in the interest of justice to interfere or prevent miscarriage of justice.
See WAZIRI VS. GUMEL (2012) 9 NWLR (PT. 1304)185; UKWU VS. BUNGE (1997) 8 NWLR (PT. 518)527; IN RE ALASE (2002) 10 NWLR (PT. 776) 553 AND CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115. PER AYODEJI, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the ruling of the Ogun State High Court of Justice, Ota Judicial Division in Suit No. HCT/116/2014 BETWEEN:
(1) CHIEF SARAFA LAWAL
(2) ALHAJI TAJUDEEN OSUNBA
(3) SURAJU AFOLABI ODUNSI (For themselves and on behalf of Isosanyin Family of Isheri Olofin, Ogun State)
AND
(1) MR. IYANDA SANNI ISIAKA
(2) MR. KOLAWOLE OLUWOLE ADEOYA
(3) OSHE PLAZA
(4) OUR LADY CHURCH
(5) MR. SANTANA DEFENDANTS
AND
IN RE: (1) MR. WILSON NUBI
(2) MRS. OLUREMI OMOSOLAPE NUB APPLICANTS
delivered on 6th of October 2016.
A summary of the facts leading to this appeal are as follows: By a judgment delivered in Suit Nos: HCT/237/2001 BETWEEN: CHIEF ODUNSI & ORS. VS. KADIRI BURAIMO AKINYEMI & ORS. on the 10th of March 2014, the lower Court (Coram: A. A. Akinyemi J.) granted amongst others a declaration that the Appellants’ Family are the owners of the parcel of land lying being and situate at Isheri Olofin more particularly delineated in Survey Plan No. DSC/OG/19A dated 20th June, 1980.
Pursuant to the said judgment, the Appellants took out a Writ of Summons at the lower Court wherein they sought for an Order granting them possession of the land occupied by named persons on Isosanyin Family, damages and the cost of the action. The named Defendants did not defend the action. After taking the evidence of the Appellants’ sole witness, the learned trial judge, (O. S. Olusanya J.) in a considered judgment delivered on the 11th of April 2016 made an order granting possession of the land claimed to the Appellants and awarded the sum of N250,000.00 as general damages against each of the named Defendants.
The Appellants caused a Writ of Attachment/Possession to issue against the instant Respondents who were not named as Defendants in the action and proceeded to execute the judgment against them.
In reaction to the above development, the instant Respondents as Applicants filed a Motion on Notice on 28th of June, 2016 wherein they sought the following Reliefs:
1. An Order of Court setting aside the Order of Possession granted in favour of the Claimants pursuant to the judgment of the Court delivered on 11th of April 2016 as far as it concerns the Applicants.
2. An Order of this Honourable Court setting aside the Writ of Attachment/Possession issued and levied against the Applicants’ properties situate, lying and being within 2km Acquisition, off Lagos-Ibadan Expressway, Isheri-Olofin, Ifo Local Government Area, Ogun State comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta on 22nd June 2016.
3. An Order setting aside the execution of judgment levied on the Applicants’ properties mentioned above on 22nd June 2016.
4. An Order of Court restoring the Applicant back into possession of the properties situate, lying and being within 2km Acquisition off Lagos/Ibadan Expressway, Isheri, Ifo Local Government, Ogun State and comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta.
After hearing the parties, the lower Court in a ruling delivered on the 6th of October 2016 granted all the Reliefs sought by the instant Respondents who were the Applicants.
The Appellants who were the Respondents in the Motion are dissatisfied with the ruling. They filed a Notice of Appeal containing three grounds of Appeal on the 28th of December 2016. The Record of Appeal was transmitted to this Court on the 24th of February 2017. The original Notice of Appeal was with leave of this Court amended. The Amended Notice of Appeal filed on the 26th of October 2021 was deemed as properly filed on the 12th of January, 2022.
In line with the extant Rules of this Court, parties filed and exchanged Briefs of Arguments as follows:
1. The Amended Appellants’ Brief of Argument settled by T.G. Adeosun, Esq. filed on 28th of October, 2021 was deemed properly filed on 12th of January, 2022.
2. The Amended Respondents’ Brief of Argument settled by Johnson Fabilola, Esq. filed on 18th of November, 2021 was deemed properly filed on 12th of January 2022.
3. The Reply Brief of Argument filed on 17th of March, 2022 was deemed properly filed on 10th of May, 2022.
At the hearing of this appeal on the 10th of May, 2022, Counsel on both sides adopted and relied on their respective Briefs of Argument in urging us to allow/dismiss this appeal.
Learned Counsel to the Respondents in Paragraph 2 Pages 3 to 7 of the Amended Respondents’ Brief of Argument raised what he titled “OBSERVATIONS ON THE GROUNDS OF APPEAL”. The submission made under this observation is a complaint against grounds 2 and 3 of the Notice of Appeal.
Furthermore, at the commencement of his argument on Issues Nos. 1 and 3 distilled from Grounds 2 and 3 respectively he canvassed the same arguments which borders on complaints against the grounds of Appeal. These arguments of Counsel to my mind are in the nature of a Preliminary Objection.
It is trite that a Preliminary Objection is raised to the hearing of an appeal and not to a few grounds of Appeal. The purpose of a Preliminary Objection is to truncate the hearing of an appeal in limine. Where there are other grounds to sustain the appeal other than those complained about, what is required of the Respondent is to file a Motion on Notice. The complaint of the Respondent in the instant appeal is against some grounds of Appeal and was found meritorious it would not terminate the appeal. This procedure adopted by the Respondents is incompetent and I so hold.
A competent Preliminary Objection is one raised in accordance with due process of law. See AJUWON VS. GOVERNOR OF OYO STATE (2021) 16 NWLR (PT. 1803)485; NIGERIAN UNION OF TEACHERS, TARABA STATE VS. HABU (2018) 15 NWLR (PT. 1642)381; ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 AND NIGERIAN NATIONAL PETROLEUM CORPORATION VS. FAMFA OIL LIMITED (2012) 17 NWLR (PT. 1328) 148.
It is further the law that where a Respondent raises a Preliminary Objection in his Brief of Argument, such Objection cannot be deemed argued along with the Brief. The Respondent is required to seek leave of Court to move the objection before the appeal is argued. Where a Respondent fails to seek the leave to argue his Preliminary Objection, it is deemed abandoned and liable to be struck out. See SUBERU VS POLARIS BANK LIMITED (2020) 9 NWLR (PT. 1728)79; ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450; UCHA VS ELECHI (2012) 13 NWLR (PT. 1317)330 AND ATTORNEY-GENERAL RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008)436.
Learned Counsel to the Respondents did not seek the leave of Court to argue the Preliminary Objection incorporated in the Respondents Brief of Argument. It is therefore deemed abandoned. The Preliminary Objection contained in the Respondents’ Brief of Argument is incompetent and also deemed abandoned. It is accordingly struck out.
As I indicated earlier, the Appellants filed a Reply Brief of Argument. The Appellants’ Reply Brief in the main contains response to the objection raised in the Amended Respondents’ Brief of Argument against Grounds 2 and 3 of the Notice of Appeal. Since the said objection has been struck out, submissions in response are therefore of no moment and are hereby discountenanced.
Learned Counsel to the Appellants submitted the following three issues for the determination of this appeal:
1. Whether photocopies of public documents (Certificate of Occupancy and Letters of Allocation) not duly certified in accordance with the law are admissible and can be relied upon by the trial Judge to grant the relief of the Respondents.
2. Whether the Respondents have proved their case before the trial Court by placing material evidence before the Honourable Court that their land did not fall within the land awarded to the Appellants in Survey Plan No. DSC/OG/19A dated 20th June, 1980 and drawn by D.A. Nzenwa, Licensed Surveyor and whether the onus of proof is on the Respondents who sought the relief before the Court. (Ground 2)
3. Whether the Respondents from the record denied the case of the Appellants that the land in dispute falls within the land the Appellants were adjudged as the owners and indeed that the judgment debtors sold the portion in dispute to one Mr. Olumba who in turn sold the land to the Respondents herein. (Ground 1)
Learned Counsel to the Respondents adopted the three issues distilled by the Appellants as his and argued them in the Amended Respondents’ Brief of Argument. I shall determine this appeal on the three issues formulated by the Appellants.
Issue No. 1 is on the admissibility of the Certificate of Occupancy and Letter of Allocation relied upon by the Respondents in proof of his case at the lower Court.
It is the contention of Appellants’ counsel that the said certificate which is a public document is not admissible in evidence as it was not certified.
He relied on the provisions of Sections 87, 88 and 102 of the Evidence Act and the cases of TALBA VS. TALBA (2010) ALL FWLR (PT. 522)1803; ARAKA VS. EGBUE (2003) FWLR (PT. 175)507; OKOTIE VS. OKOTIE-EBOH (1986) 1 SC 479; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 601) 373; MAVOLO VS. MARAM (1994) 3 NWLR (PT. 331)201; ONOBRUCHERE VS. ESEGINE (1986) 12 NSCC (PT. 1)343; OGBU VS. ANI (1994) 7 NWLR (PT. 355)128; MINISTER OF LANDS, WESTERN NIGERIA VS. AZIKWE (1969) 1 ALL NLR 49 AND FAWEHINMI VS. I.G.P. (2000) FWLR (PT. 12) 2015 to submit that only certified true copies of public documents are admissible in evidence. He therefore urged us to hold that the Certificate of Occupancy and Letter of Allocation relied on by the Respondent which are photocopies are inadmissible in evidence and resolve this issue in favour of the Appellants.
Issue No. 2 is whether the Respondents placed sufficient materials before the lower Court to demonstrate that the disputed land did not fall within the land adjudged as that owned by the Appellants. He referred us to a judgment delivered on 10th of March, 2014 in Suit No. HCT/237/2001 BETWEEN: CHIEF AFOLABI ODUNSI & ORS. VS. CHIEF IBRAHIM & ORS. wherein the Appellants were declared as the persons entitled to a Statutory Right of Occupancy over the land covered by Survey Plan No. DSC/OG/19A dated 20th of June, 1980.
He submitted the Respondents who had a duty to place credible evidence before the lower Court to demonstrate that their land is outside that awarded to the Appellants failed to discharge that burden. He reiterated the settled position of law that he who asserts must prove and submit that the Respondents who were expected to file a Survey Plan to show the relationship between the two lands failed to do so.
On Issue No.3, Appellants’ Counsel submitted that the predecessors in title of the Respondents lost their claim to the dispute in the earlier case with SUIT NO: HCT/237/2001. He finally urged us to allow the appeal.
Arguing per contra, learned Counsel to the Respondents submitted that the Appellants who did not raise the issue of the admissibility of the Certificate of Occupancy and Letter of Allocation before the lower Court cannot do so before this Court without seeking the leave of Court to so do.
He submitted the issue is a fresh issue for which the Appellants must seek and obtain leave to raise. He called in aid of his submissions the cases of GBEJE & ORS VS. OKE & ANOR (2017) LPELR-42662(CA) AND FCDA & ORS. VS. UNIQUE FUTURE LEADERS INT. LTD (2014) LPELR- 23170 (CA) and urged us to discountenance the arguments of Appellants’ Counsel on this issue. He argued in the alternative that the Certificate of Occupancy and Letter of Allocation relied on by the Respondents did not require Certification as they were attachments to an affidavit. He submitted that the position of the law is that documents attached to an affidavit cannot be objected to and that public documents attached to an affidavit did not require Certification.
On the argument of Appellants Counsel that the Respondents failed to discharge the onus of proof placed on them, he submitted that the Respondents deposed to facts in their affidavit that the disputed land was allocated to them by the Ogun State Government and cannot be part of the Appellants’ land. He therefore urged us to hold that the Respondents discharged the onus placed on them by law.
He finally urged us to hold that the appeal lacks merit and should be dismissed.
The ruling the subject of this appeal is sequel to a Motion on Notice filed by the instant Respondents wherein they sought the following Reliefs:
1. An Order of Court setting aside the Order of Possession granted in favour of the Claimants pursuant to the judgment of the Court delivered on 11th April 2016 as far as it concerns the Applicants.
2. An Order of this Honourable Court setting aside the Writ of Attachment/Possession issued and levied against the Applicants’ properties situate, lying and being within 2 km Acquisition, off Lagos-Ibadan Expressway, Isheri-Olofin, Ifo Local Government Area, Ogun State comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta on 22nd June 2016.
3. An Order setting aside the execution of judgment levied on the Applicants’ properties mentioned above on 22nd June 2016.
4. An Order of Court restoring the Applicant back into possession of the properties situate, lying and being within 2 km Acquisition off Lagos/Ibadan Expressway, Isheri, Ifo Local Government, Ogun State and comprised in Certificates of Occupancy No. 4/4/667 and No. 33/33/700 of the Lands Registry Office at Abeokuta.
Attached to the Affidavit in Support of the Motion as Exhibits M01 and M02 are two Certificates of Occupancy issued to the 1st Respondent and 2nd Respondent respectively. Also attached to the Further Affidavit and Reply to Counter Affidavit as Exhibits M04 and M05 are two letters of Re-Allocation issued to the 1st and 2nd Respondents.
The complaint of the Appellants is that Exhibits M01, M02, M04 and M05 which were relied on by the Respondents in proof of their case are not certified and therefore inadmissible because they are public documents.
The law is that only certified true copies of public documents are admissible in legal proceedings. It is however further the law that documents attached to an affidavit form part of the affidavit and constitute admissible evidence which must be given weight where the contents thereof are not in dispute. See ZAKHEM OIL SERVE LIMITED VS. ART-IN-SCIENCE LIMITED (2021) 18 NWLR (PT. 1808) 341; EZEANOCHIE VS. IGWE (2020) 7 NWLR (PT. 1724)430; EZECHUKWU VS. ONWUKA (2016) 5 NWLR (PT. 1506)529; SHITTA-BEY VS. ATTORNEY-GENERAL OF THE FEDERATION (1998) 10 NWLR (PT. 570)392 AND SOUTH-EASTERN STATE NEWSPAPER CORPORATION & ANOR VS. ANWARA (1975) LPELR- 3107 (SC).
In AONDOAKA VS. OBOT (2022) 5 NWLR (PT. 1824) 523 AT 599, PARAGRAPHS B-F, PETER-ODILI, JSC held as follows:
“The Appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents. The point has to be made that copies of public documents attached to an affidavit as Exhibits need not be certified true copies because the documents already form part of the evidence adduced by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible. Again to be said is that such, documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the Appellant did not disown his signature on the document he is contending ought to have been certified. I refer to ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799; NZEKWU VS. NZEKWU (1989) 2 NWLR (PT. 104) 373; ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848)1; OGU VS. M.T. & M.C.S. LTD. (2011) 8 NWLR (PT. 427) 713; ILORIN EAST L.G. VS. ALASINRIN (2012) LPELR 8400 AND B.A.T. (NIG.). LTD. VS. INT’L TOBACCO CO. PLC (2013) 2 NWLR (PT. 1339) 493.”
The ruling, the subject of this application was delivered pursuant to a Motion on Notice. It was not a full trial. It is trite that proceedings in application brought by way of a Motion on Notice are conducted vide affidavit evidence and that documents attached to the affidavit constitute admissible evidence. It follows therefore that Exhibits M01, M02, M04 and M05 attached to the affidavits of the Respondents form part of the affidavit and the need to certify them as true copies of the original does not arise. It is significant to note that the Appellants did not dispute the contents of the said Exhibits. The learned trial Judge was therefore right when he relied on them in arriving at his decision.
Issue No. 1 is resolved in favour of the Respondents and against the Appellants.
The crux of the complaint of the Appellants in Issue No. 2 is that the Respondents did not place sufficient materials before the lower Court to support their claim that their land does not fall within the land covered by Survey Plan No. DSC/OG/19A dated 20th June, 1980 and drawn by D.A. Nzenwa, a licensed Surveyor awarded to the Appellants in Suit No. HCT/237/2001.
In resolving this issue, it is pertinent to reproduce some relevant Paragraphs in the affidavit in support of the application.
Paragraphs 2 and 3 of the Affidavit are as follows:
“2. That I was informed by the 1st Applicant- Mr. Wilson Nubi on 23rd June, 2016 at 11am at our offices on 57, Marina, Lagos and I verily believe him as follows:
(1) That he is the registered owner of the property lying and situate at Isheri-Olofin, Ota Local Government Area, Ogun State by virtue of Certificate of Occupancy No. 4 at Page 4 in Volume 667 of the Lands Registry Office at Abeokuta issued by the Ogun State Government. The said Certificate of Occupancy is attached and marked Exhibit MO1.
(2) That the land covered by the said Certificate of Occupancy was previously acquired by the Ogun State Government and was excised and re-allocated by the Ogun State Government to the 1st Applicant.
(3) That the land is contiguous to and beside the land belonging to the 2nd Applicant, (the 1st Applicant’s wife) which is also comprised in Certificate of Occupancy registered as No. 33 at Page 33 in Volume 700 of the Lands Registry Office at Abeokuta.
3. That I was informed by Mrs. Omosolape Nubi- the 2nd Applicant on 23rd June, 2016 at 11:15am at our offices at 57, Marina, Lagos and I verily believed her as follows:
(1) That she is the registered owner of the property lying at Isheri Olofin, Ifo Local Government Area, Ogun State by virtue of Certificate of Occupancy registered as No. 33 at Page 33 in Volume 700 of the Lands Registry Office at Abeokuta. The said Certificate of Occupancy is attached and herein marked Exhibit MO2.
(2) That the land comprised in the Certificate of Occupancy mentioned above was previously acquired by the Ogun State Government and was excised and re-allocated to the 2nd Applicant.
(3) That the land is beside and contiguous with the land of the 1st Applicant which is comprised in Exhibit MO1.”
The Appellants in Paragraphs 5, 6, 7 and 8 of their Counter affidavit deposed as follows:
“5. That I deny paragraphs 2, 3, 4, 5, 6, 7, & 8 of the affidavit in support of the Motion Paper.
6. That in further denial of paragraph 2(i), I state that the land of the 1st applicant is within the land of the Claimants/respondents though both the applicants have surreptitiously obtained Certificates of Occupancy on the land while the case was going on precisely in year 2007, about six years after this case had been instituted. The applicants are hereby challenged to produce the applications for Certificate of Occupancy.
7. That in further denial of paragraph 2(ii), the land upon which the 1st applicant had trespassed had been excised and granted to the claimants/respondents family to the best knowledge of the 1st applicant.
8. That the 1st and 2nd applicants’ land is within the land of the claimants/respondents’ family, indeed the applicants purchased their portion from one Mr. Olumba who had earlier purchased their portion from the Judgment debtors (the Paseda family). The applicants are hereby challenged to produce receipts/agreements obtained from the family who sold to them.”
Undoubtedly, the case of the Respondents is that the disputed land falls within the land acquired by the Ogun State Government and which was subsequently allocated to the 1st and 2nd Respondents respectively. The 1st and 2nd Respondents attached Exhibits M01 and M02 which are Certificates of Occupancy in support of the facts deposed in their affidavit.
The Appellants who did not deny the facts of the Acquisition by the Ogun State Government insisted the disputed land form part of their family land. They claim the Respondents purchased the land from one Mr. Olumba who had purchased it from the Paseda Family. The Respondents filed a further affidavit in response to the Counter affidavit of the Appellants to which they attached Exhibits M04 and M05 which are Letters of Re-Allocation of Land issued to them by the Ogun State Government. The Appellants did not controvert the facts contained in Paragraph 2(2) and 3(2) of the affidavit in support of the application. They were evasive on these facts.
The Respondents in paragraphs 2(2) and 3(2) of the affidavit in support deposed as follows:
“2(2) That the land covered by the said Certificate of Occupancy was previously acquired by the Ogun State Government and was excised and re-allocated by the Ogun State Government to the 1st Applicant.
3(2) That the land comprised in the Certificate of Occupancy mentioned above was previously acquired by the Ogun State Government and was excised and re-allocated to the 2nd Applicant”.
It is trite that uncontroverted facts contained in an affidavit are taken as true and require only minimal proof. See UNION BANK OF NIGERIA PLC VS. PETRO UNION OIL & GAS CO. LIMITED (2022) 7 NWLR (PT. 1829)199; DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703)25; PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD VS. GOSHWE (2013) 2 NWLR (PT. 1338)338; CAPPA AND D’ALBERTO LIMITED VS. AKINTILO (2003) 9 NWLR (PT. 824)49.
The Appellants who did not specifically controvert the fact that the disputed land was acquired by the Ogun State Government are deemed to have admitted the fact.
The law is that once there is a compulsory acquisition of land, the title of the former owners become extinguished by the reason of the acquisition. See Section 28(7) OF THE LAND USE ACT, LAWS OF THE FEDERATION, 2004 AND YUSUF VS. OYETUNDE (1998) 12 NWLR (PT. 579)483.
The case of the Respondents is that the disputed land was compulsorily acquired by the Ogun State Government who allocated it to them and granted them Certificates of Occupancy. In other words, the Respondents traced their root of title to the Ogun State Government.
It is further the law that a Certificate of Occupancy properly issued raises a presumption that the holder is the owner and in exclusive possession of the land and that at the time it was issued there was not in existence a Customary owner whose title had not been revoked. See AGBOOLA VS. UNITED BANK FOR AFRICA PLC (2011) 11 NWLR (PT. 1258)1; MADU VS. MADU (2008) 6 NWLR (PT. 1083)296; EZEANAH VS. ATTA (2004) 7 NWLR (PT. 873)468; GANKON VS. UGOCHUKWU CHEMICAL INDUSTRY LIMITED (1993) 6 NWLR (PT.297) 55.
Exhibits M01 and M02 raise a presumption that the Respondents are in exclusive possession of the disputed land and are entitled to hold it to the exclusion of any other person. The Exhibits raise the presumption that any other previous title had been revoked by the Ogun State Government. The Appellants did not place any evidence before the lower Court to warrant the setting aside of Exhibits M01 and M02. I therefore agree with the learned trial Judge when he held as follows:
“In this application, the Applicants have exhibited their Certificate of Occupancy Exhibit ‘M01’ and ‘M02’, which Certificates were duly issued to them by the Government of Ogun State. They have also exhibited letters from the Ogun State Government re-allocating the lands to the Applicant- Exhibit ‘M05’ refers. I am therefore of the view that the Applicants have placed enough material before the Court to warrant the granting of this application”
(See Page 170 of the printed Record)
It is for all of the foregoing that I also resolve Issue No. 2 in favour of the Respondents and against the Appellants.
Issue No. 3 is whether the Respondents denied that the land in dispute falls within the Appellants’ family land. The Appellants contend that the Respondents are privies of the Defendants in Suit No. HCT/237/2001.
In AGBOGUNLERI VS. DEPO (2008) 3 NWLR (PT. 1074)217 AT 239, PARAGRAPHS B-E, the Supreme Court, per MUHAMMAD, JSC held as follows:
“the general principle of the law relating to privy in title is that in transactions relating to land, any person who derives title from or takes an assignment from, or is let into possession by, or otherwise claims or “comes in” under the actual representor, is bound by the same representation, and consequent estoppel, as that which binds such actual representator. See: Tylor v. Needham (1810) 2 Taunt. 279; Spenser, Bower and Turner in their book: Estoppel by representation, third edition, Butterworth, London, 1977, pages 123-124.
There is no way I can brush aside the submission of learned counsel for the respondents and the conclusion reached by the learned trial Judge, affirmed by the lower Court on the issue of parties, that the parties, on the principle of privity of transactions are from all intents and purposes, the same in both suits. Each of the parties from both sides must bear the consequence of his/its predecessor in title and be bound by it. See: Odua v. Nwanze (1934) 2 WACA 98; Shonekan v. Smith (1964) 1 All NLR 168; Omokhafe v. Esekhomo (1993)8 NWLR (Pt.309) 58.”
The effect of the above is that in transactions relating to land, any person who derives title from or takes an assignment from or is let into possession by or comes in under the actual representor, is bound by the same representation. Parties must bear the consequence of the act of their predecessors-in-title and be bound by it. The question which now begs for an answer is whether the Respondents are privies to the Paseda family who were Defendants in Suit No. HCT/237/2001.
A “privy” is a person whose title is derived from and who claims through a party. Privies are of three classes, namely:
(i) privies in blood, such as ancestor and heir;
(ii) privies in law, such as testator and executor, intestate and administrator;
(iii) privies in estate, such as testator and devisee, vendor and purchaser, lessor and lesser, or assignor and assignee.
See ADONE VS. IKEBUDU (2001) 14 NWLR (PT. 733)385; BALOGUN VS. ADEJOBI (1995) 2 NWLR (PT. 376)131; OKOROMAKA VS. ODIRI (1995) 7 NWLR (PT. 408)411; NWOSU VS. UDEAJA (1990) 1 NWLR (PT. 125)188.
It is evident from the affidavits of the Respondents that they did not trace their root of title to either Mr. Olumba or the Paseda Family. The general rule is that in civil cases the burden of proof rests upon the party who asserts the affirmative. See AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287; EWO VS. ANI (2004) 3 NWLR (PT. 861)610; OYOVBIARE VS. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23. It follows therefore that the Appellants who asserted positively that the Respondents are privies of the Paseda family have the burden to prove this fact to the satisfaction of the Court. They failed to do so. As stated earlier, the Respondents traced their root of title to a re-allocation from the Ogun State Government. There is nothing to suggest the Ogun State Government was privy to the earlier cases with Suit No. HCT/237/2001 and HCT/116/2014. It is for this reason that I hold that the Respondents who are not parties to the said suit are also not privies as claimed by the Appellants.
It is trite that an Appellate Court will not interfere with the discretion of a lower Court properly exercised. It will however interfere in the following instances:
(1) Where the discretion was not exercised in accordance with the law.
(2) Where the discretion of the lower Court is perverse.
(3) Where the lower Court acted under a misapprehension of the law.
(4) Where the lower Court acted under a misapprehension of the facts.
(5) Where the lower Court omitted to take into account matters that are relevant.
(6) Where the discretion is exercised on wrong or inadequate materials.
(7) Where it is in the interest of justice to interfere or prevent miscarriage of justice.
See WAZIRI VS. GUMEL (2012) 9 NWLR (PT. 1304)185; UKWU VS. BUNGE (1997) 8 NWLR (PT. 518)527; IN RE ALASE (2002) 10 NWLR (PT. 776) 553 AND CHIGBU V. TONIMAS (NIG.) LTD. (1999) 3 NWLR (PT. 593) 115.
The Appellants failed to demonstrate the existence of any of the foregoing factors. I also find no reason to interfere with the discretion of the learned trial Judge which was exercised judicially and judiciously.
In conclusion, having resolved all three issues in favour of the Respondents it follows that this appeal lacks merit and should be dismissed. It is accordingly dismissed. Consequently, the ruling of the Ogun State High Court in Suit No: HCT/116/2014 delivered on 6th October, 2016 is hereby affirmed. The Appellants shall pay to the Respondents N100,000 as costs.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Folasade Ayodeji Ojo, JCA. I am in full agreement with the lucid reasonings expressed therein and the conclusion thereby reached.
I adopt those reasonings as mine; by which I too find no merit in this appeal.
For emphasis, the Appellants, with respect, appears to have trivialised the discretionary power of the trial Court. The sum total of all the authorities on this point is that unless the trial Court’s exercise of judicial discretion is shown to be influenced by irrelevant considerations or premised upon views that are neither judicial nor judicious, this Court will not, without more, interfere with the trial Court’s decision; because discretionary power is intrinsic in its existence and function. See Section 6 (6) (a) of the Constitution FRN 1999 as amended; Anyah vs. African Newspapers of Nigeria Ltd (1992) LPELR- 511 (SC); Ndayako & Ors. vs. Dantoro & Ors. (2004) LPELR- 1968 (SC).
The Appellants have failed to impress us that the lower Court misapplied the correct principles of law or that it indulged in irrelevant considerations or that its views and findings were neither judicial nor judicious. Furthermore, the Appellants, having failed to controvert the Respondents’ critical facts in paragraph 2(2) of the Affidavit in support of the Application, cannot now be heard questioning the trial Court’s well considered findings on those facts, as it is settled law that facts that are undisputed are deemed admitted. See Section 123 of the Evidence Act 2011; Balogun vs. UBA Ltd (1992) LPELR- 728 (SC); A. G. Rivers State vs. Ude (2006) LPELR- 626 (SC).
May I also add by way of emphasis that the Appellants’ strenuous attempt to discredit the worth of the Respondents’ Certificates of Occupancy i.e. Exhibits “M01” and “M02” issued by the Ogun State Government, on the sole ground that they are not certified, is one that cannot fly; because they are documents forming an integral part of the Affidavit to which they are attached. Secondly, it is an erroneous notion to regard those documents as though they were being tendered in evidence in a regular hearing by oral evidence. Once their credibility is ascertained, the trial Court can rely on same. See Ezechukwu Anor. vs. I. O. C. Onwuka (2016) LPELR-26055 (SC); Abah vs. UBN Plc & Ors (2015) LPELR- 2478 (CA).
On the whole and for the fuller reasons articulated in the leading judgment, I too dismiss the appeal as unmeritorious. I abide by the order on cost made in the leading judgment.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in advance, the lead judgment of my learned brother; FOLASADE AYODEJI OJO, JCA. I agree with the reasons given therein and the conclusion reached. I also dismiss this appeal. I abide by the order as to cost.
Appearances:
H.O. Balogun, Esq. For Appellant(s)
J. Fabilola, Esq. For Respondent(s)
