NNABUIHE AKOMA EKPO v. CHUKWUEMEKA UKAONU & ORS
(2013)LCN/6651(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/OW/68/2012
RATIO
LAND LAW: WHETHER A PARTY CAN RELY ON ACTS OF POSSESSION WHERE HE PLEADS PURCHASE OR GIFT AS HIS ROOT OF TITLE IN A CLAIM OF TITLE TO LAND.
Again where a party in a claim of title to land pleads purchase or gift as his root of title, he either succeeds in proving the purchase or gift or he fails lf he fails to prove the title pleaded, he cannot turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. See the following cases: OHUAROBO VS. AIGBE (2002) 9 NWLR (Pt. 771) 29, IRAVO VS. ADEDOKUN (2005) 1 NWLR (Pt. 906) 199. Per PHILOMENA MBUA EKPE, J.C.A.
LAND LAW: WHETHER TO CLAIM OWNERSHIP, A PARTY MUST ESTABLISH A VALID ROOT OF TITLE
A party must also first establish a valid root of title before he can claim ownership. See MOGAJI V. CADBURY NIG. LTD. (1985) (2 NWLR) Pt. 393. Per PHILOMENA MBUA EKPE, J.C.A.
WHETHER IN A CLAIM OF TITLE TO LAND, PARTIES MUST REFLECT THE PERSON WHO FOUNDED THE LAND AND EXERCISED ORIGINAL ACTS OF POSSESSION AND OWNERSHIP
It is now well settled that where title to land is derived by either grant, sale, conquest or inheritance, the pleadings should reflect the person who founded the land and who exercised original acts of possession and ownership. See PIARO VS. TENALO (1976) 12 SC 31 at 34 and also OJO VS. ADEJOBI & ORS. (1978) 3 SC 65. Per PHILOMENA MBUA EKPE, J.C.A.
Before Their Lordships
UWANI M. ABBA AJIJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
PETER O. IGEJustice of The Court of Appeal of Nigeria
Between
NNABUIHE AKOMA EKPOAppellant(s)
AND
1. CHUKWUEMEKA UKAONU
2. PHILIP UKAONU
3. OKECHUKWU UWASOMBARespondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): The Respondent as plaintiff in the lower court took out this suit leading to this appeal against the Appellants at the High Court, Umuahia by a writ of summons dated and filed on the 22nd day of September 2003. Claiming the following reliefs.
(i) A DECLARATION of the Honourable Court that the plaintiff is entitled to the statutory right of occupancy over the piece or parcel of land known as and called “AHA-IGWU” lying and situate at Agbormgbe Umuelele Umudike Ikwuano Local Government Area of Abia State within the jurisdiction of the Honourable Court.
(ii) General damages of ten million naira (N10, 000,000.00) against the defendants jointly and severally for trespass unto the said AHIA-IGWU” piece or parcel of land.
(iii) Perpetual injunction restraining the defendants by themselves, their agents, servant and or workmen from trespassing or further trespassing or dealing with the said piece or parcel of “AHIA-IGWU” land in any other manner whatsoever. See pages 1 – 2 of the record. The statement of claim is dated the 30/6/2004 and filed on the 7/7/2004.
See pages 4 – 8 of the record.
The 1st and 2nd Appellant then filed a joint statement of defence and counter claim dated the 26th day of September 2005 at pages 9 – 11 of the record of appeal. The 3rd Appellant on his own part filed a separate statement of defence and counter claim on the 31st day of July 2008 at pages 16 – 18 of the record. By order of the lower court made on the 30th day of June, 2010 pleadings were filed and parties were further ordered to comply with the Rules of Court for pre-trial which was started and concluded on the 12th day of July, 2010.
Following the conclusion of the pre-trial conference, the matter was heard and judgment was delivered on the 30th day of November, 2011, in favour of the Respondent while the counter claims of all the Appellants’ were dismissed. See pages 126 – 151 of the record. It is against this judgment of the lower court that the appellants filed an appeal to this court on the grounds set out and contained in their amended notice of appeal.
The facts of the case briefly stated are that the Plaintiff/Respondent a certain Nwabuihe Ekpo claims that he is entitled to the statutory right of occupancy over the parcel of land called “Ahia Ugwu” situate at Agbomgbe Umulele Umudike Oboro within the jurisdiction of this court. The Defendant/Appellants also counter-claimed and after a protracted hearing preceded by a pre-trial conference, judgment in the case was finally delivered in favour of the Plaintiff/Respondent, hence this appeal.
The Appellants’ seven (7) grounds of appeal are hereby reproduced without their particulars as follows:
GROUND ONE
Error in Law
The lower court erred in law when it wrongly rejected a document which is admissible in law.
GROUND TWO
Error in Law
The lower court erred in law and misdirected itself when it held thus “while under cross examination she changed gear and stated that an Iroko tree is standing on the land in dispute.”
GROUND THREE
Error in Law
The lower court erred in law when it found that the 3rd Defendant failed to prove that his father bought the land thereby failing to prove his root of title when there were no facts or law supporting such a finding.
GROUND FOUR
Error in Law
The lower court erred in law when it held that the evidence of DW3 and DW2 contradicted Defendants case, when there was no such legally admissible contradiction.
GROUND FIVE
Misdirection in Law
The lower court misdirected itself when it held: “DW1 denied obliterating Exhibit ‘B’ his survey plan with correction fluid but admitted it was obliterated with correction fluid”.
GROUND SIX
Error in Law
The lower court erred in law when it relied on unpleaded facts of the headship of Nwaekpo family to found a non-existent corroboration of the evidence of CW2 and CW3.
GROUND SEVEN
Error in Law
The lower court erred in law when it held that Defendants re-entered land in possession of Claimant when there was no evidence of the alleged possession.
Both parties formulated 3 issues for determination but the issues for determination more elegantly couched in the Appellant’s brief which I have also adopted are as follows:
“(i) Whether the lower court was right to have rejected the “Oboro Native Court Civil Cause Book 1956” and the “Oboro Native Court Appeal Registrar 1956” solely on ground of “insufficient certification” thereby visiting the omission or tardiness of the Director General Archives on the appellants instead of an order directing the officer whose custody the documents are kept to certify them properly to meet the end of justice in the case.
(ii) Whether it was opened to the trial court to approbate and reprobate on the admissibility of the Oboro Native Court Civil Cause Book 1956″ and the “Oboro Native Court Appeal Register 1956″ having held at the pre-trial conference that the documents were pleaded, admissible in evidence and will be tendered at the trial
(iii) Whether the trial court was right in holding that the 1st and 2nd appellants failed to prove that their father -Ukonu jointly bought the land in dispute with the father of the 3rd appellant from the grandfather of the respondent in 1926.”
On issue No. 1, which relates to grounds one and two of the appeal, the Appellant has argued that the lower court was not right when it rejected the Oboro Native Court civil cause book 1956 and also the Oboro Native Court Appeal Register 1956 solely on grounds that they had not been properly certified by the Director General Archives. He also argued that it is the duty of the Director General Archives in whose custody the said documents are, to produce and issue certified true copies of same upon the application and payment of prescribed fees as assessed by the Registry of the said National Archives.
Learned counsel for the Appellants then cited S.III (i) of the Evidence Act now S.104 (1), (2) of the Evidence Act 2011, and further stated that the only duties imposed by law on a person wishing to obtain a copy of a public document are:
(a) Make a demand by an application to the public officer having custody of the public document.
(b) Pay the legal fees as may be assessed.
Learned counsel also stated that the duty imposed on the public officer having custody of the public document is thus:
1. To produce the document
2. Issue certified true copy of such documents
3. Subscribe his name, title and signature on the document
4. Date the document and deliver same to the applicant.
That in the instant case, it is not in dispute that the Oboro Native Court Civil Cause Book 1956 and the Oboro Native Court Appeal Register 1956 emanated from the custody of the Director General Archives.
Learned counsel for the Appellant contended that the lower court wrongfully rejected the said documents in evidence holding that the admissibility of same was not in substantial conformity with the provisions of S. III (i) of the Evidence Act. That the three conditions for admissibility must co-exist before it is admitted into evidence by the court.
In a further submission by Counsel for the Appellant he stated that in view of the fact that the documents emanated from the custody of the Director General Archives indicating proper certification, there is a presumption that the required fees must have been paid before the documents were given to the Appellant. That if the Registry of the National Archives failed or omitted to perform their duties under the law, the lapses ought not to be visited on innocent litigants who have applied for such documents. That such tardiness on the part of the registry of the National Archives should not be visited on applicant.
Learned counsel again submitted that the situation in this appeal is likened to the mistakes of the court’s Registry which courts have pronounced ought not to be visited on innocent litigants. He cited the case, CO-OPERATIVE AND COMMERCE BANKING PLC V. ATTORNEY GENERAL, ANAMBRA AND ANOR. (1992) 8 NWLR (Pt. 261) 528 at 561 reported in (1992) 10 SCNJ 137 per OLATAWURA J.S.C. held thus: “it will be contrary to all principles to allow litigants to suffer for the mistakes of the court’s registry”. The court will not visit the “sin” of the court’s registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel, was a party thereto or had full knowledge of the “sin” or mistake, and encouraged/instigated/condoned/approved the said act/action.
Also in R.M.A.F.C VS. ONWUEKWEIKPE (2009) 15 NWLR (Pt. 1 165) 592 at 608 Paras. D E, the Court of Appeal Abuja Division quoting the Supreme Court in BROAD BANK (NIG) LTD. V. ALHAJI S. ALOAYIWOLA & SONS LTD. stated as follows. “If the prescription of the law is that a writ should be of a certain nature or in a manner before it can be valid for service, it is the bounden duty of the registrar to perform his duty of endorsing the process. The litigant cannot be punished for the negligence or tardiness of the registrar in the performance of his duty”. See ‘D’ ALBERTO V. G. CAPPA PLC (2006) ALL FWLR (Pt 335) 166 at 174-175, Paras. A-F.
Learned counsel further submitted that if a public document should be of a certain nature or presented in a certain manner before it can be admissible, it is then the duty of the public officer in whose custody the public document is kept to perform his duty by certifying the said document in a manner required by law. That a litigant cannot therefore be responsible for the tardiness of the public officer in the performance of his duty. He concluded on that point that the court can only visit the sin of the registry on the litigant or his counsel where it is shown that the litigant or his counsel was a party to it or has full knowledge of the lapse or mistake and encouraged and condoned the said action.
Learned counsel submitted that in the instant case, it has not been shown that either the appellants or their counsel were privy to the negligence of the Director General Archives in the certification of the Oboro Native Court Civil Cause Book 1956 and the Oboro Native Court Appeal Register 1956 to be held accountable for the failure of the officer to properly discharge his duties as required by law. The Appellants must therefore not be made to suffer for those lapses.
Learned counsel then urged this court to order that the said documents in custody of the Director General Archives be properly certified in the interest of justice and remit the case back to another court for hearing. He then urged this court to resolve issue one in favour of the Appellants.
On issue No. 2, which relates to Ground Two of the appeal, learned counsel submitted that the pre-trial conference is a stage of the trial in civil proceedings under the New High Court (Civil Procedure) Rules 2009, where the parties to the proceedings are expected to position themselves in line with the answers in their pretrial information sheets and the court is expected to make certain orders or directions on the conduct of the trial of the case. That it will not be open to parties and the court to approbate and reprobate on the positions taken by the parties on an issue. Learned counsel further submitted that the record of appeal at pages 51-54 show that at the pre-trial conference counsel submitted the two documents which the learned trial Judge deemed admissible in evidence at the trial. That the only document objected to at the pre-trial was a Power of Attorney dated 2nd April 2010 made in favour of one Mr.Egeonu Eze. That the lower court however deemed the document relevant and admissible in law to be admitted during the course of the trial.
Learned counsel’s further submission is that having deemed such documents admissible at the pre-trial conference, such document must also be allowed to be admitted during the trial of the suit. That the orders made at the pre-trial conference are final and binding on both the court and the parties. That the lower court shall not be allowed to approbate and reprobate on those orders during trial. That the lower court cannot turn round to reject the same documents at the trial having been so admitted at the pre-trial session That the only duty open to the lower court to perform having held that the documents are admissible, is the weight to be attached to those document during judgment. He cited the case of ILORIN EAST LOCAL GOVT. VS. ALASIRIN (2012) ALL FWLR (Pt. 645) 226 at 251 para. B.
Learned counsel submitted conclusively, that the court had become “functus officio” after making the order concerning the said documents at the pre-trial conference and that it no longer had the competence to give a decision or make an order on the same matter. See F.I.B. PLC V. CITY EXPRESS BANK LTD. (2004) 6 NWLR (Pt. 869) 226 at 243.
He then urged the court to resolve issue two in favour of the Appellants.
Issue Three relates to ground 4 of the notice of appeal and learned Appellant’s counsel submitted that the lower court erred when it decided that the 1st and 2nd Appellants failed to prove that their father Ukaonu jointly bought the land in dispute with the father of the 3rd Appellant from the grandfather of the Respondent in 1926 Counsel submitted that the evidence of how the father of the Appellants bought the land in dispute from the grandfather of the respondent was not impeached at the trial in view of the following facts conceded by the Respondent.
(i) Since 64 years, the appellants were in possession of the land performing various acts of ownership without any demands by the respondent of customary rites required under the native law and custom as tenants’ licensees or temporary users of the land.
(ii) In 1956, the grandfather of the respondent who testified as CW2 sued the mother of the appellants and their late father’s senior wife before the Oboro Native Court over the land in dispute, and lost the matter. He went on appeal, and the appeal was dismissed in favour of their mother.
(iii) Since the said decision of the Oboro Native Court, the CW2 kept off from the land only for the respondent to turn round in 2003 to lay claim of ownership to the land. See pages 32 – 33 lines 10 – 15 of the record.
That long possession and acts of ownership by the Appellants unchallenged by the Respondent and the effect of the decision of the Oboro Native Court 1956 go to show that the Appellants have been in undisturbed possession of the said land.
Learned counsel further submitted that from the decision of the Oboro Native Court 1956 which was wrongly rejected by the lower court the grandfather of the Respondent went to court alleging that the land was on pledge to the mother of the appellants. That the Respondent case at the lower court is that his grandfather Nwaekpo donated a potion of the said land in dispute for temporary occupation to his sister Cheche i.e. the mother of the Appellant, See page 22 of the Record. That the said rejection by the lower court of the decision of the Oboro Native Court 1956, at the trial occasioned a grave miscarriage justice to the appellants, hence this appeal. He then concluded that the Appellants are owners of the land in dispute not via a pledge or temporary occupation to his sister Cheche i.e. the mother of the Appellants See page 22 of the Record. That the said rejection by lower court of the decision of the Oboro Native Court 1956 at the trial occasioned a grave miscarriage of justice: to the Appellants, hence this appeal. He then concluded that the appellants are owners of the land in dispute not via a pledge or temporary occupation but by outright purchase from Nwaekpo, the grandfather of the Respondent in 1926.
Learned Appellants’ counsel concluded that because of the wrongful rejection of the judgments of the OBORO Native Court 1956, the lower court wrongly concluded that 1st and 2nd Appellants failed to prove that their father Ukaonu jointly bought the land in dispute with the father of the 3rd Appellant from the grandfather of the Respondent in 1926. He then urged the court to resolve the 3rd issue in favour of the Appellants.
In response to the issues raised by the Appellants in this appeal, learned counsel submitted with regard to issue one that the lower court was right to have rejected the document namely: OBORO NATIVE COURT CIVIL CAUSE BOOK 1956 having failed to meet the conditions precedent for its admissibility as required by S. III (i) of the Evidence Act now S. 104 (1) and (2) of the Evidence Act 2011 as enunciated in the case of TABIK INVESTMENT LTD AND ANOR. v. G. T. BANK PLC (2011) ALL FWLR (pt.602) 1592.
Learned counsel argued that the OBORO COURT CIVIL CAUSE BOOK 1956 and the OBORO NATIVE COURT APPEAL REGISTER 1956 are public documents which must conform with the provisions of S. 104 (1) and (2) of the Evidence Act. 2011 No. B. Learned counsel referred to the mandatory provisions of those sections of the Evidence Act where a public document is certified only if it is paid for, if there is an endorsement/certificate that it is a true copy of the document in question, and if the Endorsement/Certificate is dated and signed by the officer responsible for the certification, with his name and official title. That whereas the OBORO COURT CIVIL CAUSE BOOK 1956 was rejected, it is useful to note that the “OBORO NATIVE COURT APPEAL REGISTER 1956 was admitted as Exhibit D. Learned counsel reiterated the fact that there exist certain conditions precedent before a public document can be admitted and tendered in court as a certified document. These are:
(i) It has to be paid for;
(ii) (ii) There has to be an endorsement/certificate indicating that it is a true copy of the document in question.
(iii) The endorsement/certificate must be dated and signed by the officer responsible for certification with his name and official title.
See TABIK INVESTMENT LTD V. G.T. BANK PLC (2011) 17 NWLR (Pt. 1276) 240 at 258 – 259 paras. H – A.
Counsel again submitted that certified copies are by statute deemed to be originals and where there is no certification there cannot be a presumption of regularity. Counsel then urged the court to resolve this issue in favour of the respondent.
On Issue Two, whether an inadmissible document in law can become admissible merely because the lower court at the pre-trial session had stated that the two documents OBORO NATIVE COURT CIVIL BOOK 1956 and OBORO NATIVE COURT APPEAL REGISTER 1956 were admissible and would be tendered at the trial. Learned counsel again submitted that the fact that the earlier document i.e. OBORO NATIVE COURT CIVIL BOOK 1956 was admitted and the latter document i.e. OBORO NATIVE COURT APPEAL REGISTER 1956 was also admitted as Exhibit D. by the lower court did not occasion any miscarriage of justice on the Appellant in the absence of any judgment relating thereto and in view of the finding of the lower court that it was of no moment or helpful to the appellant’s case. Counsel further submitted that the fact that the lower court stated at the pre-trial session that the intended documents were admissible in law and could be tendered at the hearing of the suit, would not render an inadmissible document in law to become admissible. That it is trite that parties or even their counsel cannot in law consent to the admissibility of a document which in law is inadmissible. Learned counsel emphasized the fact that the two documents aforementioned are public documents which ought to be certified in line with the provisions of S. 104 (1) AND (2) of the Evidence Act 2011. That even when an inadmissible document in law is wrongly or erroneously admitted in evidence as an exhibit, the same can be expunged by the court either suo motu or on the application of any of the parties or counsel on his behalf in the suit.
Learned counsel cited the cases of ANPP V. USMAN (2009) ALL FWLR (Pt. 403) 1292 at 1359, and UGWU VS. ARARUME (2007) 12 NWLR (Pt. 1048) 367 SC., where it was held that parties by sheer collusion cannot give consent to the admission of a document which the Evidence Act clearly provides it inadmissible; it will ignore that so-called consent and rule that the evidence is inadmissible Counsel further cited the case of OLAYINKA VS. THE STATE (2007) 9 NWLR (Pt. 1040) 561 SC, where the Supreme Court held that evidence that was wrongly admitted is not legal evidence and the court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. Again learned counsel, to buttress his argument further cited the cases of HYPOLITE V. AGHAREVBA (1998) 11 NWLR (Pt. 575) 598 C.A.,OGIDI VS. EGBA (2999) 10 NWLR (Pt.621) 42 and ONOCHIE V. ODOGWU (2006) 6 NWLR (Pt. 975) 65 SC and DAGACI OF DERE VS. DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382 SC, where it was held in the letter that if a piece of evidence is wrongly received in evidence by the trial court, an appellant court has the inherent jurisdiction to exclude it or expunge it from the record notwithstanding that counsel at the trial court did not object to the admissibility of the piece of evidence.
He discountenanced the argument of learned counsel for the Appellant that the lower court became functus officio and therefore lacked the competence and jurisdiction not to have admitted the said document as misconceived in law. He further submitted that pre-trial sessions form part of and include the hearing of a suit. That the non-admissibility of the OBORO NATIVE COURT VICIL BOOK 1956 by the lower court on the basis that it was not properly certified, did not occasion any miscarriage of justice.
Learned counsel opined that even if the said documents were to be admitted, that fact of admissibility would not have enhanced the case of the Defendant/appellant at the lower court as they were of no moment and without any probative value. He therefore urged the court to resolve issue No. Two in favour of the Respondent.
Issue No. 3 is having defended and fought their battle at the lower court on the basis of customary purchase of the land in dispute, whether the lower court was right when it held that the Appellants did not prove their counter claim for the following reasons:
(a) The Appellants failed to give evidence of the purchase price of the land in dispute in 1926 by their predecessors.
(b) The Appellants failed to mention the names of the witnesses who witnessed the alleged customary purchase.
Learned counsel referred to the case of ADEDEJI VS. OLOSO (2007) ALL FWLR (Pt. 610) 620 SC, where the Supreme Court outlined the ingredients of a valid customary sale of land as follows:
(a) Payment of money or agreed consideration.
(b) The transaction must be witnesses by witnesses.
(c) That the purchaser must be let into possession.
He also cited the cases of INYANG V. ESHIET (1990) 5 NWLR (Pt. 149) 178 at 180 Ratio 5, MOGAJI VS. CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393.
Learned counsel therefore concluded that Appellant’s counsel’s submission on long possession and acts of ownership are baseless and unfounded in view of the reasoning of the Supreme Court in Cadbury’s case (supra). He then urged the court to resolve issue three in favour of the Respondent and to dismiss the appeal as lacking in merit as the Respondent had proved his case by evidence leaving nothing in rebuttal.
The grouse of the Appellant on issue one is that the learned trial Judge was wrong to have rejected the OBORO NATIVE COURT CIVIL CAUSE BOOK 1956 and the OBORO NATIVE COURT APPEAL REGISTER 1956 solely on the ground that the said documents had not been sufficiently certified by the office of the director General Archives. That the court ought to have made an order for proper certification in order to meet the ends of justice in the case. It is instructive to note that the two documents aforementioned are public documents as agreed by both parties in this case and the conditions precedent for the admissibility of such documents must be met as required by law.
In this case, the law that binds the admissibility of the said documents is S. 111 (1) of the Evidence Act, 2004 now Evidence Act 2011 No. 18. S. 104 (1), (2) and (3) for purposes of clarity and ease of reference, the above Section of the law reads as follows:
“1. Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
2. The certificate 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 sea led, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
3. An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”
What can be gleaned from the above section of the law is that the law in itself has imposed specific duties to be carried out by both the public officer having custody of the public document and the person applying for a copy of such public document. Therefore the duty imposed by law on a person who wishes to obtain a copy of a public document is:
“1. Make a demand by way of an application to the public officer having custody of the public document.
2. Pay the necessary legal fees as may be assessed.”
The public officer on his own part then has the bounden duty to do the following:
(a) Produce the document
(b) Issue certified true copies of such document(s)
(c) Subscribe his name, title and signature on the document
(d) Date the document and deliver same to the applicant.
Like I stated earlier, it is not in dispute that the two public documents aforementioned emanated from the office of the Director General Archives. The contention of the Respondent is that the documents, being public documents did not meet the required provisions of the law which demand proper certification, while counsel for the Appellant claims that it is indeed the public officer who had failed in his duty to do the needful as regards ensuring that the said documents were properly certified.
I shall also make reference to the case of TABIK INVESTMENT & ANOR. VS. GUARANTY TRUST BANK PLC (2011) ALL FWLR (Pt. 609) 1592, where it was clearly enunciated that the certification of a public document is subject to conditions precedent to its admissibility, presumption and authenticity, stating thus:
“Before a public document can be tendered and accepted by the court, it must be certified.”
A public document is certified if:
(i) It was paid for,
(ii) There is an endorsement/certificate that it is a true copy of the document in question,
(iii) The endorsement/certificate must be dated and signed by the officer responsible for certification with his name and official title.
The learned trial Judge on further rejection of the said document had this to say:
“Let me without mincing words state that the public document earlier tendered by defence counsel but rejected and market rejected remains rejected. I do not wish to revisit the issue again.”
A careful perusal of the said document reveals that the document in question is not a judgment per se. All that is gleaned from the entry therein is that there was an order for the defendant in 1956 who is now the Appellant to accept the sum of E2. II shillings as redemption money and the said case was dismissed since the said document in which these entries were made was rejected. All the entries therein therefore are of no moment. A careful perusal of the said document i.e. the OBORO NATIVE COURT CIVIL BOOK 1956 reveals that there is no indication whatsoever on the face of the document that the necessary fees were paid for the procurement of the said document. Again, even if the said document were properly procured, it would be of no moment as it is not a judgment per se that would enhance the case of the Appellant. Secondly, the said document is not a judgment an appeal as indicated by the Defendant/Appellant in the lower court. All that is revealed on the face of the said document is an order of court for the Defendant/Appellant to accept a certain amount as redemption money and nothing more. This in effect does not serve any purpose and does not have any probative value on the Appellant’s case. The fact that the said document did not emanate from proper custody is indeed a nail on the sore head of the Appellant’s case. I agree with the learned trial Judge that the said document did not emanate from proper custody and was rightfully rejected by the court as the conditions precedent were not met. It is however trite law that a trial court before whom witnesses testify and documents tendered is on firma terra in a land case, in his quest to arrive at a correct decision. See the case of ONUOHA NWOKOROBIA VS. DESMOND NWOGU (2009) 5 SC. 110. In the result, I therefore resolve issue No. one in favour of the Respondent and hold that the trial Judge was right in rejecting the said document having failed to fulfill the conditions precedent in the admissibility of such document as required by law.
Issue No. 2 is: “Whether an inadmissible document in law can become admissible merely because the lower court at the pre-trial session/s opined or stated in its record that “OBORO NATIVE COURT CIVIL BOOK 1956” and “OBORO NATIVE COURT APPEAL REGISTER 1956” were admissible and could be tendered at the trial OR IN THE ALTERNATIVE: Did the fact of non-admissibility of the “OBORO NATIVE CAUSE BOOK 1956” (and not that of the “OBORO NATIVE COURT APPEAL REGISTER 1956” admitted as Exhibit “D” by the lower court) occasion a miscarriage of justice on the appellant in the absence of any judgment relating thereto and in view of the finding of the lower court that it was of no moment or helpful to the appellants’ (defendants’) case”, I humbly submit that the fact that at the pre-trial session/s, the lower court stated on record that the intended documents were admissible in law and could be tendered at the hearing of the suit would not render an inadmissible document in law to be admissible.
The Appellants argued that the orders made by the Presiding Judge at the pre-trial session particularly on admissibility or otherwise of the documents listed to be relied on at the trial are sacrosanct and bind both the court and the parties. The Respondent on the other hand stated that the fact that the trial Judge stated on record that the intended documents were admissible in law and could be tendered at the hearing proper would not render any inadmissible document in law to become admissible merely by the stroke of the learned trial Judge’s pen. There is no gainsaying this fact that either parties or their counsel can consent to the admissibility of a document even if in law is inadmissible. It is also the law that even when an inadmissible document is wrongfully or erroneously admitted in evidence as an exhibit, same can be expunged by the court suo motu or an application by either party. In the case of ALADE V. OUKADE (1976) 2 SC 187 – 190 Idigbe JCC opined that there is no doubt that a court is expected in all proceedings to admit and act only on evidence which is admissible in law under the Evidence Act. The opposing party had the duty to object to the inadmissible evidence at the trial. In this case, the Respondent objected to the admissibility of the said document at the pre-trial session and the trial Judge upheld his objection in the trial judgment even though he had opined at the pre-trial session that the said document could be tendered. It is also noted that the court cannot rely on documents which had been wrongly admitted in reaching its ultimate decision.
It is instructive that documents admitted at pre-trial Sessions cannot automatically confer admissibility at the trial proper. Such documents are merely abstracts to be used at the main trial. See OSHIOMHOLE vs. INEC 2010 Pt. 1040.
Suffice it to say that a pre-trial session being fairly novel, does not include admissibility of documents. It is merely a procedural session meant to ameliorate protracted trials and to assess the relative strength of each others case. In such cases, evidence wrongly admitted cannot be legal evidence and the court has a duty to reject such evidence at the main trial. In the case of OLAYINKA VS. THE STATE (2007) 9 NWLR (Pt. 1040) 561 SC, the Supreme Court held that such evidence should be regarded as if it had not been tendered and admitted. That any finding or decision based on such evidence would be perverse.
The Appellant has argued that the lower court had become FUNCTUS OFFICIO when it stated that such evidence as the said document in question could be admitted at the trial. It is however, my humble view that the lower court cannot be bound by such a statement at the pre-trial session. As long as the document is inadmissible, such a document remains inadmissible even at the main trial as well as the pre-trial session. It is also my view that the non-admissibility of the OBORO NATIVE COURT CIVIL CAUSE BOOK 1956 did not occasion any miscarriage of justice against the Appellants at the lower court. Like I earlier stated in this judgment. The admissibility would not have affected the findings of the lower court and the judgment one way or the other as the said document was not per se a judgment in favour of the Appellant. It could not have in any way enhanced the Appellant’s counter claim at the lower court. The said document was therefore without any probative value and the rejection of the said document whether rightfully or wrongfully has little to do with a complaint of breach of fair hearing and does not in any way occasion a, miscarriage of justice. In the light of the foregoing, I hereby resolve issue No. Two in favour of the Respondent.
Issue No. 3 is: having defended and fought their battle at the lower court on the basis of customary purchase of the land in dispute, was the lower court not right in its judgment when it held that the appellants (defendants/counter-claimants) did not prove that their predecessors acquired same by customary purchase”.
Learned counsel for the Respondent argued that the court below was right when it held that the Appellants’ as defendants did not prove the customary purchase of the land in dispute in 1926 by their predecessors due to lack of evidence of the purchase price and non mention of the names of the witnesses at the alleged customary purchase. The Appellant on the other hand submitted that the court below erred in its decision that the Appellants predecessor Ukaonu jointly bought the land in dispute with the father of the 3rd Appellant from the grandfather of the Respondent in 1926. He then referred to the Appellants acts of long possession without interference from the Respondents. He also made heavy weather of the decision of the Oboro Native Court in 1956 which document was rejected by the lower court.
To begin with all the parties are ad idem as to the fact that the predecessors of the Respondents are the original owners of the land in dispute. The claim by the Appellants in the lower court is that the said land had been sold to them and that ownership of the said land had passed to them. It is however well settled that where a party admits that his opponent’s ancestors had been the original owners of the land in dispute, the onus of proving the change of ownership rests in that party See ONABUCHE V. ESEGINE (1986) 2 SC. 385. Also RUNSEWE VS. ODUTOLA (1986) 3 SCNJ 33.
The learned trial Judge found in his judgment that the entire AHIA – IGWU Land verged green on their Survey Plan including the area in dispute was founded by Ajuka by deforestation and Ajuka is the progenitor of the Respondent. From the pleadings and also from the evidence, it has been shown that at the death of the Respondent’s ancestor Ajuka, his estate i.e. Ahia-Igwu land was given to his first son Nwaguo. That at his death his son Nwaekpo inherited the entire land including the land in dispute. It is also the case of the Respondent that a portion of the said land in dispute was given to his sister Cheche, the paternal grandmother of the Appellants for temporary occupation and which the Appellants now claim to be an outright sale.
The claimant/respondent is relying on gift inter vivos and hinges his case on traditional evidence which is one of the five ways of proving ownership to land. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 337.
It is now well settled that where title to land is derived by either grant, sale, conquest or inheritance, the pleadings should reflect the person who founded the land and who exercised original acts of possession and ownership. See PIARO VS. TENALO (1976) 12 SC 31 at 34 and also OJO VS. ADEJOBI & ORS. (1978) 3 SC 65. The Claimant/Respondent has stated through the evidence of CW1 that the original owner of the entire Ahia – Ugwu land verged green in exhibit A including the land in dispute was deforested and owned by his predecessor Ajuka which land was finally passed onto Daniel Nwaekop the Respondent’s grandfather and head of the Nwaekop family.
The onus now lies on the Appellant to prove and authenticate the outright sale of the said land in dispute to them. We cannot lose sight of the ingredients of a valid customary sale of land as has been elucidated in the following cases: ADEDEJI V. OLOSO (2007) 3 MJSC 56, COLE V. FOCANI (1956) 1 FSC 66 at 68. They are clearly stated thus:
“1. Payment of money or agreed consideration
2. The transaction must be witnessed by witnesses and the party is obliged to name all the witnesses dead or alive.
3. The purchaser must be let into possession and this will lend credence to the plaintiff’s case.”
A party must also first establish a valid root of title before he can claim ownership. See MOGAJI V. CADBURY NIG. LTD. (1985) (2 NWLR) Pt. 393. In the case at hand, the Claimant/Respondent testified that he took effective possession of the land in dispute I 1990 when the Appellants relinquished same and has since then cultivated it. That piece of evidence remains unchallenged. The parties are agreed that the entire Ahia-Ugwu Land including the land in dispute originally belonged to the family of the respondent. It is however settled that where a party admits that his opponent’s ancestors as in this case, Nwaguo and Nwaekpo (Respondent’s ancestors) were the original owners of the land in dispute, the onus of proving change of ownership rests with the Defendants/Appellants. See, ONOBRUCHE vs. ESEGINE (1986) 2 SC 385, RUNSEWE VS. ODUTOLA (1996) 3 SCNJ 33.
In this case, the Appellants root of title is hinged on customary purchase. The question now is, was there really a sale and money transfer? Again the Defendants/Appellants did not plead the names of persons who witnessed the handing over of the land. Also the 1st and 2nd defendants/Appellants not only failed to give evidence of the purchase price but also failed to plead and give evidence of the transaction. The Hon Judge at the lower court held that the Defendants/Appellants did not prove their root of title which is the purchase of the land in dispute by their ancestors. There is therefore no basis for the Appellants’ claim of long possession and acts of ownership. See the case of MOGAJI VS. CADBURY NIG. LTD (supra).
Again where a party in a claim of title to land pleads purchase or gift as his root of title, he either succeeds in proving the purchase or gift or he fails lf he fails to prove the title pleaded, he cannot turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. See the following cases: OHUAROBO VS. AIGBE (2002) 9 NWLR (Pt. 771) 29, IRAVO VS. ADEDOKUN (2005) 1 NWLR (Pt. 906) 199.
I further hold that a claim for declaration of title is not founded on ownership by prescription under native law and custom. In general legal parlance, civil cases are decided on a preponderance of evidence or balance of probabilities.
The learned trial Judge before whom the witnesses testified had weighed and balanced the evidence of all the parties on either side of the scale and believed the case of the Respondent which I also find more credible, cogent and plausible. I therefore hold from the totality of all of the above that the Respondent proved his case and left nothing in rebuttal. The rejection of the OBORO CIVIL CAUSE BOOK 1956 did not occasion a miscarriage of justice and neither did the OBORO NATIVE COURT APPEAL REGISTER 1956 which was admitted as exhibit D enhance the defence/counter claim of the Appellants.
Finally, the Appellants did not tender any judgments with which to buttress the case of the appellant. From the totality of all of the above findings and conclusions, I hereby resolve issue three in favour of the Respondent. Accordingly, this appeal is adjudged lacking in merit and I do hereby dismiss it accordingly. The judgment of the lower court delivered on the 30th day of November 2011 is hereby affirmed. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I have read before now the lead judgment of my learned brother P. M. Ekpe, JCA just delivered. I am in complete agreement with his lordship’s reasoning and conclusion that this appeal is devoid of any merit.
I just wish to add for emphasis only that the principles of fair hearing will not be invoked in favour of a party where the trial judge correctly expunges an exhibit earlier admitted. It is only when the document is wrongly or wrongfully expunged from the record that a party can be heard to canvas to an Appellate Court that he was denied fair hearing. The law is elementary that a trial judge has the right to expunge from the record a document which is wrongly or wrongfully admitted. He can do so suo moto at the point of writing judgment.
He needs no prompting from any of the parties, although a party is free to call his attention to the document at the stage of address.
Where trial judge is wrong in expunging a document, the Appellate process will correct it and so an argument that the judge ought to have expunged the document suo moto at the stage of writing judgment, will not avail the party wronged. See Brossette Manufacturing Nig. Ltd vs. Hemobola Ltd & Ors (2007) 5SC 84.
In the instant appeal, the fact that the trial court stated at the pretrial session that the documents were admissible and could be tendered at the hearing of the suit could not render an inadmissible document in law to be admissible. It is not in dispute that the, “Oboro Native Court Civil Book 1956 and Oboro Native-Court Appeal Register 1956” are public documents which ought to be certified in line with the provisions of Section III (1) of the Evidence Act, 2004 (now Section 104 (1) & (2) of the Evidence Act 2011). It has been held that parties by sheer collusion cannot give consent to the admission of a document which the Evidence Act clearly provides it inadmissible. It will ignore the so called consent and rule that the evidence is inadmissible. See A.N.P.P vs. Usman (2009) All FWLR (PT.403) 1292 @ 1359: Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) 367: and Olayinka vs. State (2007) 9 NWLR (PT. 1040) 561.
It is for this reason that I also allow this appeal and affirm the judgment of the lower court delivered on the 30th/11/2011. I also endorse the order as to costs.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment of my Lord PHILOMENA MBUA EKPE, JCA, which he just delivered.
I agree with the said judgment. I have nothing to add.
Appearances
D. O. Agbo, Esq, with C. C. Iwuoha, Esq; and I. J. Nwaukwu, Esq (Mrs.)For Appellant
AND
P. C. Adighije, Esq., and C. A. Anumba, Esq.For Respondent
