LOLO FLORENCE ONYEULO & ANOR v. UGOCHUKWU IBE & ANOR
(2017)LCN/10209(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2017
CA/OW/300/2011
RATIO
ILLITERATE JURAT: THE POSITION OF THE LAW ON THE APPLICATION OF ILLITERATE JURAT
Illiterate jurat, by law, is never used as an offensive weapon, but as protection for an illiterate person, who is the one expected to invoke its use. Even where a person (Plaintiff) seeking to take advantage of the illiterate jurat, opts for same, the law expects him to prove that he is an illiterate and he is not allowed to complain after taking the benefit of the transaction. See the case of Jeje Vs Enterprise Bank Ltd & Ors (2015) LPELR – 24829 CA, where it was held:
“I hold that the trial judge was in error when he concluded that the Plaintiff is an illiterate. His conduct and actions clearly show that he understood the nature, purpose and consequence of his transaction with the Defendants with regard to the supplemental lease and it should therefore be enforceable against him. Therefore, Appellant, having shown to have derived some benefit from the documents, Exhibits B and F H executed on 24th August, 1970, cannot be allowed to disown it by coming to the trial Court more than 10 years after the coming into force of the deal to challenge the document.”
In the case of Egbuchulam and Anor Vs Egbuchulam & Anor (2014) LPELR – 22831 CA, it was held:
“The law on jurat is for the protection of the illiterate and is used as a shield and not as a sword. It is not for the Appellants to use it against him when they in fact admitted that he was not called as a witness.”
See also Falunbi Vs Olanloye (2004) 6 – 7 SC 68 at 80 , the protection singularly enures to the illiterate; Ezeigwe Vs Awudu (2008) 11 NWLR (pt.1097) 158. See also Oyedele & Anor Vs Jimoh (2012) LPELR – 8536 CA, where it was held that:
“a jurat is meant to operate in favour of the illiterate person to ensure his protection, that his illiteracy not taken undue advantage of.” A jurat is for the protection of the illiterate and cannot be used against his interest.” Wilson Vs Oshin (2000) 6 SC pt.111 at 24. PER ITA GEORGE MBABA, J.C.A.
DOCUMENTARY EVIDENCE: THE POSITION OF THE LAW ON THE EFFECT OF A DOCUMENT RELATING TO LAND TRANSACTION IS ADMITTED AS RECEIPT EVIDENCING PAYMENT
It is also the law, that where a document relating to land transaction is admitted as receipt evidencing payment, the same is seen as a document in equity, to affirm the existence of the transaction where-of the payment was made and collected. The document is never seen as a land instrument, requiring compliance with registration formalities about land. The document is therefore, not a title document or a document at the root of title to land. What a Claimant needs to prove, in the circumstances, is that there was a sale of land under native law and custom and the sale was evident by the payment, and Claimant being led into the land, in the presence of witnesses, after the payment, the receipt of which the vendor acknowledged in the exhibit. See the case of Djukpan Vs Orovbuvovbe & Ors (1967) NWLR 287 at 290 – 291, where the Supreme Court held that an instrument within the meaning of the Land Instruments Registration Act could be admitted as a receipt for the payment of money or as a memorandum evidencing the nature of the transaction. See also Araba Vs Elegba (1986) 1 NWLR (pt.16); (1985) LPELR – 20950 (CA).
In the case of Harding & Anor Vs The Administrator General and Public Trustee of Lagos State & Anor (2016) LPELR – 40990 (CA), my Lord, Geogewill JCA, relied on the Supreme Court decision of Alhaji Mustapha Kachalla Vs Alhaji Tijanni Bank & Ors (2006) 27 WRN 1 at 26 – 27, to say:
“The law has been well and long settled that, where a person pays for a land and obtains receipt for the payment, followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal purchaser with knowledge of the equitable estate in the land.”
Now, going by the succinct statement of the law in the case above, it is clear to me that there are conditions precedent or essential requirements upon which this principle can be validly invoked. The essential requirements for the applicability of this principle of law are that the person, whose equitable interest is to be protected must have paid for a land and obtained receipt evidencing such payment, followed by physical possession of the land, and remaining in such possession creates in his favour an equitable interest in the land protected by law. See Okoye Vs Dumez Nig Ltd & Anor (1986) 1 NWLR (pt.4) 785; UBA Plc & Ors Vs Ayinke (2000) 7 NWLR (pt.663) 83. PER ITA GEORGE MBABA, J.C.A.
COMPETENT WITNESS: WHAT MAKES A PERSON A COMPETENT WITNESS IN A LAND MATTER
What makes a competent witness is not where he hails from, or the camp he belongs in relation to the case, or who the Court imposes on the parties, but in the case of land matter:
“Anybody connected with the land, whether due to family link with the land or as a witness to what happened to the land or as a party to a transaction on the land, is definitely a competent witness.” Per Belgore JSC in Ezeokafor Umeojiako & Anor Vs Ahanonu Ezenamuo & Ors (1990) LPELR – 3367 (SC); (1990) NWLR (pt.126) 253. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. LOLO FLORENCE ONYEULO
2. CHUKWUDI KINGSLEY ONYEULO Appellant(s)
AND
1. UGOCHUKWU IBE
2. CHIBOGWU IBE Respondent(s)
ITA GEORGE MBABA, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of Abia State High Court in Suit No. HU/107/2008, delivered on 8/11/2010, wherein the trial Judge, Hon. Justice Onuoha A.K. Ogwe dismissed the claim of the Plaintiffs as well as the Counter claim of the Defendants. The Plaintiffs filed this appeal against the said judgment, while the Defendants filed a cross appeal.
At the Lower Court, the Plaintiffs (now Appellants) had sought the following reliefs against 1st Defendant (who was the sole Defendant). The 2nd Defendant later applied to join in the Suit:
(1) A declaration that the Plaintiffs are entitled to the piece or parcel of land known as and called ?AZU Mission? situate at Atta Ibeku within the jurisdiction of this Court, with annual value of N20.00.
(2) The sum of N5,000,000.00 (Five Million Naira) being special and general damages for trespass.
(3) Perpetual Injunction restraining the Defendants, his agents, servants and/or privies (See pages 2 and 7 of the Records).
The Defendants counter claimed for declaration of title over the same ?AZU
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Mission? land, praying for statutory right of occupancy thereof, damages of 5Million Naira for trespass and for injunction. See pages 21 ? 22 of the Records.
In his judgment the trial Court said:
?The document at the root of title is Exhibit H, dated 26/1/1952. It shows that Nmerenwanne Ochonma sold ?AZU Mission? land to Ogbonnaya Uzoanya. This buyer is the father of CW2, who sold to Chief Onyeulo. If there was no contest about the document there would have been no problem. But the document is being seriously contested. It was called an indenture but tendered as a receipt which was what was pleaded. The submission of Chief Nwamoh that it was tendered as an instrument and ought to be rejected is erroneous. On the weight of Exhibit H, it does not contain a Jurat, despite the fact that, with the exception of the buyer and one witness, the seller and the three witnesses are illiterate. These make the document light. It then becomes necessary to do more than simply tendering the receipt. Therefore, in addition to the receipt, the Claimant has to prove the title of his vendor. On the face of the document, no relation of
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Nmerenwanne Ochonma witnessed the transaction. Also no person in Atta Ibeku did. I find it also strange that the Claimants did not call any relation of Nmerenwanne to give evidence for him. There is no evidence of where the ?AZU Mission? in Exhibit H is situate. CW2, not being a native of Atta Ibeku or member of the family of Ochonma was not competent to give traditional evidence of the land that is of pedigree of the Ochonma family. A stranger from Umuda Isingwu outside Ibeku could not give evidence of sharing of Ochonma?s estate?
On the issue of possession, I don?t see proof of the allegation of Claimants that they have been in possession. Not a single person from Atta was called to support the allegation of possession. It was only natives who could do that and not people from Umuda? If Claimants forebears in title were in possession from 1961 or any year at all, it is a matter of evidence. I do not find any. The Claimants were little presumptions. Claimants, being non Atta lbeku people needed to do more than they did in proving, at least, acts of possession?
I answer the 1st issue in the negative, that
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is to say, that Claimants have not proved their title and that of their vendor. That also takes care of the aspect of 2nd issue, which touches on Claimant?s case? they have not proved title, having regard to all the circumstances. The suit is therefore dismissed.? (See pages 97 ? 99 of the Records)
On the Counter Claim, the trial Court said:
?I shall consider the aspect that deals with traditional evidence? Since the Counter-Claimants rely on that in proof of their title? the traditional evidence is inconclusive; it is not proved and should be rejected. Chief Onyenakom in contending that acts of possession have been proved by Claimants as an alternative to the failure of proof of title by purchase, he referred us to the old case of Kojo II Vs Bonsie (1957) 1 WLR 1223, where it was held that where traditional evidence fails, recourse should be had to acts of possession, recent enough. But I think that position has been altered by the Supreme Court. See the case of Eze Vs Atasie (2000) 9 WRN 73 at 75, where it was held that once traditional evidence has gaps which make it inconclusive, the party can no
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longer resort to acts of possession? The Counter-Claimants have not proved their claim. The said claim is hereby dismissed.? (See pages 89 ? 92 of the Records).
That is the judgment on appeal by both parties, as per the appeal and Cross-appeal, and each side compiled separate Records of Appeal.
Appellants filed their appeal on 14/1/2011, as per pages 95 ? 100 of their Records of Appeal, deemed duly transmitted on 21/10/15, while the Respondent?s Notice of Cross-appeal, filed on 23/2/2011, is on pages 102 to 106 of their own Records of Appeal.
(The Appellants also transmitted Additional Records also deemed duly done on 21/10/15).
Appellants filed their brief on 20/11/15 and a Reply brief on 10/3/17. In the brief, Appellants distilled 5 Issues for the determination of the appeal, namely:
(a) Whether a receipt evidencing payment of purchase price of land under native law and custom is a document at the root of title, which ought to carry the names of witnesses to the transaction. (Grounds 2 and 3)
(b) Whether CW2 was incompetent to give evidence of traditional history of his father?s lessors.
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(Ground 4).
(c) Whether it is only natives (sic) can give evidence in support of an allegation of possession. (Ground 5).
(d) Whether a Magistrate can make findings of fact whilst discharging an Accused on a no case submission anchored on bonafide claim of right. (Ground 7).
(e) Whether the judgment dismissing Appellant?s Suit was against the weight of evidence. (Grounds 1 and 6).
The Respondent?s Cross Appeal was struck out on 27/10/16 by this Court, upon a motion by the Appellants filed on 22/1/16, upon failure of the Cross Appellants to file Cross Appellants? brief. An attempt to restore the Cross-Appeal, as per application filed on 10/2/17, was struck out on 13/2/17. But the Respondents? application for extension of time to file Respondents? brief was granted on that 13/2/2017. The Respondents filed their brief on 20/2/17 pursuant to that order granted on 13/2/17. They distilled a lone Issue for the determination of the Appeal, as follows:
?Whether the Lower Court was right in holding that the Appellants did not prove their case, and in dismissing same in the circumstances of the case
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(Grounds 1 ? 7)
Arguing the appeal on 3/5/17, Counsel for Appellants, Chief Uwandu Onyenakom, on Issue 1, referred us to paragraph 9 of the Statement of Claim (page 5 of the Records) where Appellants pleaded the receipt evidencing payment of the purchase price for the land ?AZU Mission?, which was admitted as Exhibit H. He submitted that under native law and custom, transfer of land is validly effected when payment for and handing over of the land is done in the presence of witnesses; that no form of writing is required. He relied on Cole Vs Folani 1 FSC 66; Onyekonlu Vs Okeke 5 ENLR 48. He said the receipt of payment in respect of land under Customary Law is not proof of title to land (Etajata Vs Ologbo (2007) 30 NSCQR 966). But that issuance of a receipt in transaction under Native Law and Custom is to obviate denial, whether money paid was in respect of sale or pledge, and how much.
?Counsel said Exhibit H was not meant as ?the document at root of title?, but as receipt of payment for land transaction and that the same carried stamp duty, placed in 1952, a document of over 20 years! He added that the receipt, as
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expected, does not indicate the customary rites associated with sale, under native law and customs which are incidents of sale evidenced by oral accounts. He relied on Rotimi Vs Savage 17 NLR 77 and Djukpan Vs Orovuyovbe (1967) NWLR 287. Counsel stated that Exhibit H contained the purchase price and what it paid for; that having admitted Exhibit H as receipt, the trial Court was in error to say that Exhibit H was in contest, thus sitting on appeal over its ruling (admitting the document); that having admitted the document as a receipt, the trial Court was wrong to allow further argument, at address stage, which made it to consider the document (Exhibit H) as being at the root of title, which required a jurat to be effective. He argued that such general law did not apply to Exhibit H, admitted as receipt of payment.
Counsel also submitted that the trial Court was in error in looking for witnesses to the transaction on the face of Exhibit H; he added that transaction in land under Native Law and Custom consists in payment for, and handing over of the land; that witnesses to the transaction do not all sign the purchase receipt. He asserted that those errors
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by the trial Court, about Exhibit H, made the Court to subject the document, a mere receipt, to the requirements (of a registrable instrument) under the general law.
On Issue 2, Counsel said competence of a witness to testify or give evidence is a matter of law under the Evidence Act; that all persons are competent to testify unless the Court considers otherwise; that CW2 had adopted his statement on oath and was cross examined; the trial Court did not say he was prevented from giving evidence or that he did not understand the questions put to him or that his answers were irrational, but at its findings, at the judgment, the trial Court labeled CW2 a stranger from ?Umuda? who was not competent to give evidence. Counsel added that competence to give traditional evidence of land is not restricted to only members of a family; that a person who has had knowledge of a family, this time for over 50 years, and conversant with the family history, can give traditional evidence of land; that CW2 fitted into that.
?Counsel referred us to page 89 of the Records where the trial Court said the Claimants had a duty to prove the title of their vendor;
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Counsel wondered how that could have been done, where the Court disqualified the evidence by CW2, saying he was a stranger to the family, and not competent to give evidence of the family history. He added that the Claimants could only prove the title of their vendor through traditional evidence, since the vendor?s father purchased the land under native law and custom.
Also, Counsel said the trial Court had, on page 93 of the Records, held the traditional history given by the Respondent (a native expected to give evidence for Claimants) as incongruous and inconclusive; Counsel said that the trial Court should have warned itself, that nativity was not a basis of competence in putting forward a cogent and compelling traditional evidence of land. He said that the way the trial Court treated the evidence of CW2 rendered the admissible evidence inadmissible and undermined the weight of the Claimants? Case; that that findings occasioned a miscarriage of justice.
On Issue 3, Counsel said the trial Court said it did not ?see proof of the allegation of Claimants that they have been in possession? it is only natives who could do
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that? (page 91 of the Records). Counsel said that was a novel proposition; that from time immemorial possession has been regarded as nine/tenth of the law; that the Claimants had contended that their husband and father purchased the land from CW2 and subsequently surveyed the land upon which Exhibit B was registered at the lands Registry, Umuahia; that because Appellants and CW2 are not natives of Atta, the trial Judge ruled that they cannot give evidence of possession. Counsel submitted that surveying a land and planting beacon thereon is an act of possession, and relied on the case of Ajero Vs Ugoji (1999) 7 SC (pt.2) 58; Ofei Vs Danqua (1961) 1 ALL ER 596.
Counsel referred us to the evidence of CW2, who had stated in Exhibit J, that upon purchase of the land, his father planted a cocoa plantation, which cocoa trees he uprooted after the civil war in 1970 and continued to farm thereon until 1995, when he made Exhibit B in Appellants? husband and father?s favour, and subsequently until the year 2000, when the Attorney in Exhibit B required him to stop. Counsel said all these pieces of evidence were excluded by the trial judge
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? because CW2 was not a native of Atta. He said that even the findings in Exhibit E, that Appellants? husband and father was in possession at the time Respondents buried their father on the land and planted a sign post, were excluded by the trial judge.
Counsel wondered how else Appellants, who were not natives could have established their case, without giving evidence of their possession in the face of a grand design to rob them of the property; that the approach adopted by the trial Court was wrong and perverse occasioning miscarriage of justice.
On Issue 4, Counsel said the Court proceeded on an erroneous premise, when it said that a discharge of an accused who made a no case submission, relying on bonafide right of Claim, tantamounted to an acquittal, whereas in Exhibit E, the trial Magistrate had stated that the 1st Defendant was discharged, technically regretting that the discharge was unfortunate. Counsel said reliance on Section 23 of the Criminal Code, for no case submission, simply says, ?even if the Court believes the prosecution, I am exculpable by the defence of Claim of right, so long as I made the claim honestly
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without an intention to defraud.? Counsel said that the discharge, in such circumstances, is not an acquittal and dismissal of the charge, because the evidence is worthless or discredited, but to settle the issue of claim of right over the property. He noted that the trial Magistrate had made findings in Exhibit E, that the act of the accused (1st Defendant) in burying his father on the land and mounting a sign post on the land, amounted to forcible entry; Counsel said that the trial Judge also ignored or excluded that evidence and reached a perverse conclusion, which occasioned miscarriage of justice.
On Issue 5, Counsel said the trial Court again excluded admissible evidence adduced by the Claimants and their witnesses, when the trial Court said that only a member of a family, or natives can give evidence of possession, thereby excluding the evidence of CW1 and CW2. He added that the decision of the trial Court was against the weight of evidence before the Court and occasioned a miscarriage of justice.
He urged us to resolve the Issues for Appellants and allow the appeal.
?Responding, O.O. Amuzie Esq, Counsel for the Respondents,
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answered the sole issue distilled by the Respondents in the affirmative; that the trial Court was right in holding that Appellants did not prove their case and in dismissing same.
He relied on Section 131 ? 132 of the Evidence Act, to say that he who alleges has a duty to prove what he alleges; that Appellants had a duty to prove the fact of purchase of the land in dispute by CW2?s father from Nmerenwanne Ochonma, and to prove the title of the later; that Appellant had relied solely on Exhibit H, to prove the purchase of the land by CW2?s father from the Customary owner ? Nmerenwanne Ochonma; that the receipt was not proof of title to land; that Appellants wanted the trial Court to give them judgment, based on the Exhibit H.
Counsel relied on Etaja Vs Ologbo (2007) 11 MJSC 176 at 195 ? 196 to say that admission of document is one thing but the weight to be placed on it is another thing; that the Respondents had seriously contested the Exhibit H; that the trial Court?s evaluation of the Exhibit H was proper and cannot be faulted, especially as CW1 and CW2, under cross examination on pages 41, 45 and 46
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respectively said:
My husband did not approach or see anybody in Atta before buying the land.?
Exhibit B was not signed by anybody from Atta or Ibeku in general? I don?t know why no Atta person signed the agreement when my father bought.?
He argued that the provisions of the Section 3 of the Illiterate Protection Law must be strictly followed and complied with, and where it is not, renders a document inadmissible in evidence. He relied on Ezeigwe Vs Awudu (2008) 8 ALL NLR 404.
Counsel said the trial judge was right to say that Appellants should have called the relations of the Nmerenwanne Ochonma to give evidence, that CW2, not being a member of the family of Ochonma or a native of Atta Ibeku, was not competent to give evidence of traditional history of the land. He relied on the case of Alli Vs Alesinloye (2000) 6 NWLR (pt.660) 171 at 222, which Counsel said tallied with the decision of trial Court, on a stranger giving evidence of traditional history of a family. He said that Appellants had a duty to trace the traditional history of the land, right down to their vendor. He relied on
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Odi Vs Iyala & Ors (2004) 6 MJSC 92 at 112; Nworkorbia Vs Nwogu (2009) 10 NWLR (pt.1150) 533 at 573.
Counsel also submitted that Appellants did not appeal against the findings of the trial Court that by evidence of DW2, the nephew of Nmerenwanne Ochonma, the Appellants? alleged vendor, the Ochonma family do not own land within the area of the land in dispute; that that amounted to acceptance. He relied on Calabar Central Co-operative Thrift & Credit Society Ltd & Ors Vs Ekpo (2008) 11 MJSC 104, 123.
On the Exhibit E, Counsel said the same was inadmissible, being criminal proceedings, that criminal proceedings cannot be used in civil proceeding. He relied on Oyewole Vs Kelani 12 WACA 327; Maduabuchukwu Vs Umunakwe (1990) 2 NWLR (pt.134) 598, 607 ? 608.
He urged us to resolve the Issue against the Appellants and to dismiss the appeal.
Appellants? Reply brief high-lighted some surreptitious inclusions in the Respondents? Brief filed on 20/2/17 with the leave of Court, obtained on 13/2/17; Counsel said that paragraphs 4.16, 4.17, 4.18, 4.19, 4.20, 4.26 and 4.31 therein are strange, as they were not part of
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what was exhibited (proposed Respondents? brief) attached to the said motion of 10/2/17, granted on 13/2/17. Appellants also faulted the allegation in paragraph 4.02 of the Respondent?s brief that:
?The Appellants alleged that their Patrarch, Late Levi Onyeulo, purchased the ?AZU Mission? land now in dispute from the father of CW2
I think those are issues of facts which this Court can take notice of, but the Respondents should be reprimanded for smuggling in strange paragraphs into their Respondents? brief, different from what they had exhibited to the motion, as proposed Brief, which this Court permitted them to file within 7 days. The said surreptitious inclusions ? new paragraphs 4.16, 4.17, 4.18, 4.19, 4.20, 4.26, 4.31 are hereby struck out, not being in agreement with the exhibited proposed Respondents? brief, attached to the motion for extension of time, filed on 10/2/17.
RESOLUTION OF ISSUES
I think the 5 Issues donated by the Appellants for the determination of the appeal are apt for the purpose, but they can be summarized into three (3) Issues, namely:
(1) Whether
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the trial Court was right to consider Exhibit H (receipt evidencing payment for the land) as a document at the root of title, requiring the same to have compliance with the illiterate Jurat Law.
(2) Whether the trial Court was right to hold that CW2 was incompetent to give evidence and whether only a native can give evidence in support of allegation of possession.
(3) Whether from the evidence before the trial Court, that Court was right to dismiss the Appellants? Claim.
The trial Judge had held, concerning Exhibit H, as follows:
?The document at the root of title is Exhibit H, dated 26/1/1952. It shows that Nmerenwanne Ochonma sold ?AZU Mission? land to Ogbonnaya Uzoanya. This buyer is the father of CW2, who sold to Chief Onyeulo. If there was no contest about the document, there would have been no problem. But the document is being seriously contested. It was called an indenture but tendered as an instrument and ought to be rejected is erroneous. On the weight of Exhibit H, it does not contain a jurat despite the fact that with the exception of the buyer and one witness, the seller and the three witnesses are
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illiterate. These make the document light (See page 89 of the Records).
As rightly stated by the trial Judge, Exhibit H was admitted as receipt of payment evidencing transaction over land. The Court had also rightly rejected the attempt by the Respondents? Counsel to reject the document, or even after admission, to see it as tendered as land instrument. But surprisingly, the trial Court, in assessing the Exhibit H, failed to regard it for what it was ? mere receipt, acknowledging collection of money for land transaction by the vendor, but consciously or unconsciously promoted the document to what it (Court) had even rebuked the Respondents? Counsel against i.e. Instrument of title to land, when the Court said the document was at the root of title, and went further to require it compliance with the illiterate jurat. The trial judge did that, claiming the document was contested.
I think that attitude to Exhibit H, was very wrong and had misled the trial Court to reach wrong conclusions about the case. I think whatever contest that may have existed about the Exhibit H, should have ended at the point of admission of the
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document as exhibit. After the admission, the trial Court had no power to subject it (the document) again to hostility, as if the Court was regretting its admissibility, and so was sitting on appeal over its earlier decision, looking for reasons to justify its hacking down the document, to whittle down its effect and use in the case.
If the trial Court had taken and considered the document (Exhibit H) for the purpose it was admitted (Receipt for payment), there would have been no problem, as it rightly stated. The Court therefore invented ?problem?, when it was misled to think of the document as being ?at the root of title,? needing proof, as such and requiring compliance with the illiterate jurat. Illiterate jurat, by law, is never used as an offensive weapon, but as protection for an illiterate person, who is the one expected to invoke its use. Even where a person (Plaintiff) seeking to take advantage of the illiterate jurat, opts for same, the law expects him to prove that he is an illiterate and he is not allowed to complain after taking the benefit of the transaction. See the case of Jeje Vs Enterprise Bank Ltd & Ors
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(2015) LPELR ? 24829 CA, where it was held:
?I hold that the trial judge was in error when he concluded that the Plaintiff is an illiterate. His conduct and actions clearly show that he understood the nature, purpose and consequence of his transaction with the Defendants with regard to the supplemental lease and it should therefore be enforceable against him. Therefore, Appellant, having shown to have derived some benefit from the documents, Exhibits B and F H executed on 24th August, 1970, cannot be allowed to disown it by coming to the trial Court more than 10 years after the coming into force of the deal to challenge the document.?
In the case of Egbuchulam and Anor Vs Egbuchulam & Anor (2014) LPELR ? 22831 CA, it was held:
?The law on jurat is for the protection of the illiterate and is used as a shield and not as a sword. It is not for the Appellants to use it against him when they in fact admitted that he was not called as a witness.?
See also Falunbi Vs Olanloye (2004) 6 ? 7 SC 68 at 80 ? the protection singularly enures to the illiterate; Ezeigwe Vs Awudu (2008) 11 NWLR (pt.1097)
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158.
See also Oyedele & Anor Vs Jimoh (2012) LPELR ? 8536 CA, where it was held that:
a jurat is meant to operate in favour of the illiterate person to ensure his protection, that his illiteracy not taken undue advantage of? A jurat is for the protection of the illiterate and cannot be used against his interest.? Wilson Vs Oshin (2000) 6 SC pt.111 at 24.
I think, where a document is admitted as receipt to evidence payment over a land transaction which occurred 52 years before the document comes to be admitted, the issue of illiterate jurat cannot arise, as the purpose of the document is to acknowledge that some money had been paid to the vendor over the land transaction which the vendor has not denied. A total stranger to the said transaction cannot be heard to complain that illiterate jurat was not placed on the (over 50 year old) document.
It is also the law, that where a document relating to land transaction is admitted as receipt evidencing payment, the same is seen as a document in equity, to affirm the existence of the transaction where-of the payment was made and collected. The document is
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never seen as a land instrument, requiring compliance with registration formalities about land. The document is therefore, not a title document or a document at the root of title to land. What a Claimant needs to prove, in the circumstances, is that there was a sale of land under native law and custom and the sale was evident by the payment, and Claimant being led into the land, in the presence of witnesses, after the payment, the receipt of which the vendor acknowledged in the exhibit. See the case of Djukpan Vs Orovbuvovbe & Ors (1967) NWLR ? 287 at 290 ? 291, where the Supreme Court held that an instrument within the meaning of the Land Instruments Registration Act could be admitted as a receipt for the payment of money or as a memorandum evidencing the nature of the transaction. See also Araba Vs Elegba (1986) 1 NWLR (pt.16); (1985) LPELR ? 20950 (CA).
In the case of Harding & Anor Vs The Administrator General and Public Trustee of Lagos State & Anor (2016) LPELR ? 40990 (CA), my Lord, Geogewill JCA, relied on the Supreme Court decision of Alhaji Mustapha Kachalla Vs Alhaji Tijanni Bank & Ors (2006) 27 WRN 1 at
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26 ? 27, to say:
?The law has been well and long settled that, where a person pays for a land and obtains receipt for the payment, followed by his going into possession and remaining in possession, equitable interest is created for him in the land such as would defeat the title of a subsequent legal purchaser with knowledge of the equitable estate in the land.?
Now, going by the succinct statement of the law in the case above, it is clear to me that there are conditions precedent or essential requirements upon which this principle can be validly invoked. The essential requirements for the applicability of this principle of law are that the person, whose equitable interest is to be protected must have paid for a land and obtained receipt evidencing such payment, followed by physical possession of the land, and remaining in such possession creates in his favour an equitable interest in the land protected by law. See Okoye Vs Dumez Nig Ltd & Anor (1986) 1 NWLR (pt.4) 785; UBA Plc & Ors Vs Ayinke (2000) 7 NWLR (pt.663) 83.
I think that was established in this case by evidence and as per Exhibit H. Therefore, I resolve the
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Issue for Appellant, that the learned trial Court mishandled and misapplied the Exhibit H, and relapsed into great error that resulted in miscarriage of justice.
Issue 2 was whether the trial Judge was right to hold that CW2 was incompetent to give evidence of traditional history of his father?s vendor, and whether the Court was right to imply that only a native could give evidence in support of allegation of possession.
The CW2 was the Appellants? vendor and the son of the man who bought the land from Nmerenwanne Ochonma. Respondents? relation CW2 tendered the Exhibit H to show that the original owner Nmerenwanne Ochonma, who sold the land to his (CW2?s) father, had acknowledged receipt of payment for the land. His statement on oath was Exhibit J. He gave evidence describing the land and stating how his father came by it and traced the traditional history of his father?s vendor.
Surprisingly, the trial Court said:
?I find it also a little strange that the claimants did not call any relation of the Nmerenwanne to give evidence for them. There is no evidence of where the AZU Mission in Exhibit H is
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situated. CW2 not being a native of Atta ? Ibeku or a member of the family of Ochonma was not competent to give traditional evidence of the land that is of pedigree of the Ochonma family. A stranger from Umuda Isingwu outside Ibeku could not give evidence of sharing of Ochonma?s estate. The nearest person to Nmerenwanne was his nephews (sic) the DW2, who stated that their family does not even have land within the area in dispute See page 90 of the Records.
I think those were very novel and strange holdings, on who to be called as witness and who is a competent witness. It is not the Court that is to decide who should be called as a witness to a land transaction, and the Court cannot expect a Plaintiff to call a member of the family of his opponent to testify for him about transaction over which land the opponents are scheming to take away from him. There is no law that disqualifies a person, who has knowledge about a given facts in issue, from giving evidence about it in Court, simply because, he is not a native or member of the family from which the facts originated. A man who buys a landed property is expected to have sound
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knowledge of how his vendor came by the land, and to share such knowledge with his children and those taking over from him. Thus, when CW2, who was the Appellants? vendor and son of the original buyer from Nmerenwanne testified on the root of title of the land his father bought, which CW2 sold to the Appellants? father/husband, he was acting within the law and doing the correct thing, as he was testifying of facts and disclosures within his knowledge.
The case of Alli Vs Alesinloye (2000) 6 NWLR (pt.660) 171 at 222, relied upon by the Respondents, would not therefore apply to aid what the learned trial Court did. It rather applied, in my view, to support the case of the Appellant, as CW2 was not a stranger to the facts about the root of title of his father?s vendor, Nmerenwanne Ochonma. In that case of Alli Vs Alesinloye (Supra), the Supreme Court held:
It is difficult for me to contemplate how a stranger to a family can give an acceptable traditional history of that family, unless by research effort in which a member of that family who has had the advantage of knowing or being told that history narrates that
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history to such a stranger? certainly, for such stranger to give that evidence, it is still necessary to give the source of information or better still, plead successive descendants of that family up to the member who made the history available to him
Appellants had pleaded the history of the land and how they acquired it in paragraphs 9, 10, 11 of the Amended Statement of Claim, at page 13 of the Records. CW2 knew what he was talking about. He said he knew the father of the Defendants; and under cross examination, he said that his family had been in possession of the land for 52 years; that Nmerenwanne was in possession and farming on the land, until he sold it to his (CW2?s) father in 1952; that the burial of Emmanuel Ibe, in 2003, was the cause of dispute, and that was after he had sold the land to late Chief Levi Onyeulo (husband/father of Appellant). See page 44 of the Records.
That showed that from 1952 to 2003 the land was in possession of Appellants or their vendors ? CW2 and his father and the Respondents knew that but schemed to retake it.
?The strange and absurd requirement by the trial Judge, that
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only a native Atta or family members of the Ochonma was competent to give evidence of sharing of Ochonma?s estate or of who was in possession of the land appeared to suggest forcing the claimants to go to their very oppressors to seek a witness to their cause before the trial Court would appreciate their case. It is very sad that a Court would box a litigant into such difficult and tight corner, to be given justice. Of course, if Appellant went to the opponent to seek a witness, the outcome could be predicted, in the face of what appeared to have been a grand design to rob them of the use of the land they bought and had been in possession of for over 50 years.
What makes a competent witness is not where he hails from, or the camp he belongs in relation to the case, or who the Court imposes on the parties, but in the case of land matter:
?Anybody connected with the land, whether due to family link with the land or as a witness to what happened to the land or as a party to a transaction on the land, is definitely a competent witness. Per Belgore JSC in Ezeokafor Umeojiako & Anor Vs Ahanonu Ezenamuo & Ors (1990) LPELR ?
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3367 (SC); (1990) NWLR (pt.126) 253.
CW2 was the person who sold the land to the husband/father of the Appellants, and who had also been in possession of the land for many years, before the sale? He was not only a competent witness, but also a vital one especially as he had to trace the root of title of the land his father bought, which he inherited and sold to the Appellants husband/father. The trial Court had also ruled that the Claimant had a duty to prove the title of his vendor. I think that was what CW2 was doing.
I resolve the issue 2 for Appellants, too.
Issue 3: From the evidence before the trial Court, was the trial right to dismiss Appellants claim?
Of course, going by the views I already expressed under Issues 1 and 2, it is obvious that the trial Court did a great injury to the justice of this case. It is strange that the trial Court held, concerning the elaborate evidence on the acts of possession of the land by CW2 and later by Appellants, as follows, on page 91 of the Records:
?On Issue of Possession, I don?t see proof of the allegation of Claimant?s that they have been in possession. Not a single
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person from Atta was called to support the allegation of possession. It was only natives who could do that and not people from Umuda. Also, one cannot be buried without people knowing, especially somebody like Emmanuel Ibe, who was a Church steward. It would bring a church function and yet Claimants were not aware Emmanuel was buried on the land
Meanwhile, there was clear and undisputable evidence from CW2 that upon the purchase of the land in 1952, his father planted a cocoa plantation which he later uprooted after the civil war in 1970 and he continued to farm thereon, until 1995, when he made Exhibit B, power of attorney in favour of the Appellants? husband/father, and the power of attorney was registered as No.95 at page 95 in Volume 610 of the Land Registry, Umuahia. The land was surveyed with beacon stones planted therein. See page 40 of the Records. CW2 said on page 44 of the Records:
?My family has been in possession of the land for 52 years. Mmerenwanne was in possession and farming thereon until he sold it to my father in 1952. The burial of Emmanuel Ibe in 2003 was the cause of dispute and it was after I had
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sold the land to late Chief Levi Onyeulo.”
How come the trial Judge said he did not see proof of possession by Appellants and needed at least one Native or person from Atta to testify to support acts of possession before the Court could accord respect to the claims of possession. That it was only natives who could give evidence of acts possession by Appellants. That was. indeed an absurd and perverse reasoning, in the circumstances, especially as the learned trial judge had tabulated the evidence of the acts of possession of the CW2, his father and that of the Appellants on the land. (See page 91 ? 92 of the Records)
There was also a challenge by the Appellants, when 1st Respondent buried the corpse of his late father on the land in dispute. The Police prosecuted him in the Magistrate?s Court, in Charge No. U/198c/2003, where the Accused person raised the defence of bonafide right of Claim, in a no case submission, pursuant to Section 23 of the Criminal Code. Of course, by that law, once a person Claims a bonafide right over property allegedly damaged, the criminal Court must hands off the matter, for the parties to settle their civil
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rights of Claims over the property in the Civil Court. See Tongo Vs COP (2007) LPELR ? 3257 (SC); (2007) 12 NWLR (pt.1049) 525; Fashion Iroaghon Vs C.O.P. (1964) NWLR 48 ?
?Once the evidence for the prosecution revealed that there was a genuine dispute as to ownership or at least the control of the land, the prosecution has to succeed in discharging the basis of proof showing that the act was done unlawfully
In that case of Tongo Vs C.O.P (Supra) my Lord Onnoghen JSC (as he then was) said:
Section 23 of the Criminal Code? states thus:
?A person is not criminally responsible for an offence relating to property for an act done or omitted to be done by him with respect to any property in exercise of an honest claim of right and without intention to defraud.?
From the above provision, it is clear that for an accused to avail himself of that defence, he has to produce evidence at the trial to establish the fact that the claim of right is:
(a) Made with all honesty, and
(b) Without intention to defraud.
It is for the trial Court to decide whether the said
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defense avails the Appellants (Page 22 thereof)
The trial Court was therefore not correct to say that because the 1st Defendant?s no case submission on grounds of bonafide claim of right succeeded, ?the accused person was discharged and acquitted.? The trial Magistrate had made findings to the effect that the 1st Respondent, in burying his father and mounting of sign post on the land, amounted to forcible entry.
I think such observation, coupled with the many acts of possession enumerated in the case, should have given the trial Court better perspective as to the positive acts of possession of the Appellants on the land. Even the act of Surveying the land with beacon stones alone and registering the same, together with Power of Attorney (Exhibit B) with the lands Registry, Umuahia, as No 95 page 95 Volume 610, was sufficient act of possession. See Ajero Vs Ugoji (1999) 7 SC (pt.2) 58; OFEI Vs Danqua (1961); OMAC OILS NIG. LTD & Ors Vs EGBADEYI & Anor (2014) LPELR ? 24112 CA.
?And they had been on the land for over 50 years before the hostility by the Respondents. As part of its conclusion on the
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issue of acts of possession by the Appellants, the trial Court had observed:
?If Claimants forebears in title were in possession from 1961 or any year at all it is a matter of evidence. I did not find any. The Claimants were a little presumptuous. Claimants, being non Atta Ibeku people needed to do more than they did in proving at least acts of possession. It may well be that Claimants story is true but in Court, we deal with admissible evidence. This case is a lesson to anybody who buys land in a distant place to endeavor and take effective possession and establish some presence on it or the temptation to take it back by the line of the vendor may prove irresistible to some unscrupulous successors in title.? (Underlining mine) (Pages 19 ? 92 of the Records).
That suggests the trial Court knew the games played by the Respondents in the case, to dispossess the land from the Appellants, because they (Appellants) were not natives of Atta Ibeku. Sadly, the trial Court appeared to have encouraged the said ?unscrupulous? fellows.
I resolve this Issue too for the Appellants and on the whole, hold that the appeal is
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meritorious and is allowed.
I hereby set aside the decision of the trial Court, and in its place, grant the reliefs sought by the Appellants at the Lower Court as follows:
(1) A declaration that Appellants (as Plaintiffs) are entitled to the statutory right of occupancy over that piece or parcel of land known as and called ?AZU Mission? situate at Atta Ibeku (which bounds with the Church land), within the jurisdiction of the Lower Court.
(2) The sum of two Million Naira (N2,000,000.00) being general damages for trespass.
(3) Perpetual Injunction restraining the Respondents, their agents, servants/privies from further trespass on the said land.
Respondents shall pay the cost of this Appeal assessed at N50,000.00 to Appellants.
?MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had a preview of the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA, just delivered. My learned brother has admirably, characteristically and demonstrably stated in details, the salient facts and the relevant laws applicable, with regard to the instant appeal matter. I therefore, without hesitation
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whatsoever, agree with his reasoning and conclusion. Indeed and with due respect to my noble Lord, I adopt the said reasoning and conclusion as mine. Hence, I also adjudge the appeal to be meritorious. It is thus accordingly allowed by me. I also award the same costs as my learned brother, Mbaba, JCA, has done.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother ITA G. MBABA, JCA. I am in full agreement with the reasoning and conclusion therein.
I also resolve all the issues in this appeal in favour of the appellant. I hold that this appeal has merit and it is hereby allowed. I set aside the decision of the trial Court delivered on 8/11/2010 in HU/107/2008.
I abide by the consequential order including costs in the leading judgment.
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Appearances
CHIEF UWANDU ONYENAKOMFor Appellant
AND
O.O. AMUZIE ESQFor Respondent
