OGBOLE v. OGA (2020)

OGBOLE v. OGA

(2020)LCN/15483(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 17, 2020

CA/A/654/2014

RATIO

DUTY OF EVIDENCE: EVALUATION OF EVIDENCE

It is the duty of the trial Court to dispassionately appraise or evaluate the oral and documentary evidence proferred and tendered before it in accordance with the laid down principles and procedure. The trial Court is also enjoined to make use of the singular opportunity of observing the witnesses who testified before it as to the veracity of the evidence given by a witness. This Court will not lightly interfere with evaluation of evidence unless it is shown that the lower Court improperly evaluated the evidence before it especially where miscarriage of justice occurs. See:-
1. DR. SOGA OGUNDALU VS CHIEF A. E. O. MAC JOB (2015) 3 SCM 112 AT 124 per RHODES-VIVOUR, JSC.
2. MRS. E. I. ZACCALA VS. MRS KINSLEY EDOSA & ORS (2018) 6 NWLR (PART 1616) 528 AT 545 B – D per M. D. MUHAMMAD, JSC who said:
“It is trite that the trial Court is vested with the primary duty of evaluating evidence and ascribing probative to some. This primacy in the Court’s responsibility arises out of the fact of the advantage it has of seeing and, from observation of the witnesses, making impressions as they testified. Thus where the trial Court fails to bring the advantage to play in evaluating the evidence of the witnesses or where being documents, as in the instant case, the issue of credibility is not at play, the appellate Court is in as good position as the trial Court to reappraise the evidence and make correct inferences. See Atoyebi & Anor The Governor of Oyo State & Ors (1994) 5 NWLR (Pt. 344) 290; Dakat v. Dashe (1997) 12 NWLR (Pt. 531) 46 and Ajibulu v. Ajayi (2013) LPELR- 21860 (SC); (2014) 2 NWLR (Pt. 1392) 483.
In Nkebisi v. State (2010) 5 Nee 84 at 104; (2010) 5 NWLR on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour. The 1st respondent’s appeal to the lower Court was on the basis of improper/non-evaluation of documentary evidence, exhibit A and P.” PER PETER OLABISI IGE, J.C.A.

TITLE TO LAND: WHETHER A declaratory relief MAY be granted on the weakness of the Defence to the action

A declaratory relief cannot be granted on the weakness of the Defence to the action and cannot be decreed even on admission of a Defendant. The Claimant must rely on the strength of his own case.
1. GODDY EDOSA & ANOR VS MRS E. OGIEMVVANRE (2019) 8 NWLR (PT. 1673) AT 14 F – H to 15 A per KEKERE-EKUN, JSC who said:-
“It is equally well settled that in order to succeed in a claim for declaratory reliefs, the claimant must rely on the strength of his own case and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Bello v. Eweka (1981) 1 SC (Reprint) 63; Emenike v. P.D.P (2012) 12 NWLR (Pt.1315) 556; Ilori v. Ishola (2018) LPELR-44063 (SC), (2018) 15 NWLR (Pt. 1641) 77. A declaratory relief will not be granted even on admission. The claimant must satisfy the Court that he is entitled to the relief. See: Bello v. Eweka (1981) 1 SC 101 @ 102 per Obaseki JSC to wit:
“It is true as was contended before us by the appellants counsel that the rules of Court and evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence not by admission in the pleading of the defendant that he is entitled to the declaration.” (Italics mine).
There is no burden on the defendant to prove his own title to the disputed kind where he does not file a counter claim. See: Onovo v. Mba & Ors (2014) 14 NWLR (Pt. 1427) 391; (2014) LPELR- 23035 (SC) @ 73 B-D; Elias v. Disu (1962) All NLR (Pt. 1) 214 @ 220, (1962) 1 SCNLR 361; Kodilinye v. Odu 2 WACA 336 @ 337 – 338. It is only when the claimant has made out a case that the defendant would be required to proffer evidence in rebuttal.”
2. ALHAJI ABATCHA MOHAMMED KOLO VS ALHAJI M. LAWAN (2018) 13 NWLR (PART 1637) 495 AT 511 D – D TO 512 A – B per ARIWOOLA, JSC who said:-
“It is interesting to note that the respondent did not have a case before the trial Court. The case that culminated into the instant appeal was that of the appellant who had sued the respondent, praying, inter alia, for a declaration of title to the specific parcel of land covered by the title document – Certificate of Occupancy No. 80112336, which he held. And an order restraining the respondent, his servants, agents, assigns or any persons whosoever, from trespassing or interfering with the land covered by the said title deed.
First and foremost, it is the duty of the plaintiff’ in any action for a declaration of title to land to show the precise area of land being claimed. See; Gilbert Onwuka & Ors v. Michael Ors (1989) 1 SC (Pt.II) 1; (1989) 1 NWLR (Pt. 96) 182; (1989) LPELR 2720 SC.
On whom the burden of proof lie in a claim for declaration of title to land, it is already a well established principle of law that the onus is always on the plaintiff to establish his claim, and that it is not open to him, to rely on the weakness of the defendant’s case. In Alhaja Sabalemotu A. Kaiyaoja Ors v. Lasisi Egunla (1974) 12 SC (Reprint) 49; (1974) LPELR – 1644 SC this Court had opined as follows:
“…what is required of a plaintiff in an action for declaration of title is at least to establish his claim, by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant”.
In other words, the law is the same as it was very long time ago, as stated by Webber, C. J. in Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at pages 337-338 as follows: –
“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him, to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”
At page 516 His Lordship also said:-
“As earlier stated, it is trite law, that in a claim for declaration of title to land, the defendant does not have a duty to prove his own title to the same land in dispute, It is the primary duty of the plaintiff who prays for a declaratory relief for title to a parcel of land to plead all relevant facts and call credible evidence to show that he is entitled to the order. It is trite law that he who asserts must prove the assertion. See; Section 135 of the Evidence Act, Elias v. Omo-Bare (1982) 5 SC 25; Elias v. Disu (1962) 1 All NLR 214; (1962) 1 SCNLR 361; Agala & Ors v. Egwere & Ors (2010) 5 SCM 22, reported as Ayala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
The law is that the plaintiff in an action for declaration of title is required to satisfy the Court by credible evidence but not by admission in the pleadings of the defendant, of his right to the declaration he claims. See: Bello v. Eweka (1981) 1 SC 101. The reason being that the grant of a declaration by the Court is discretionary. See Kodilinye v. Odu 2 WACA 336; Akinola Ors v Oluwo & Ors (1962) WNLR 135; (1962) 1 SCNLR 352; Sunday Temile & Orsyemide E. Awani (2001) 9 SCM 150 at 165; (2001) 12 NWLR (Pt. 728) 726.” PER PETER OLABISI IGE, J.C.A.

TITLE TO LAND: POSITION OF THE LAW WHERE A CLAIMANT CALLS WITNESSES THAT CONTRADICT HIS PLEADED CASE

The law is settled that where a Claimant or a Party calls witnesses that contradict his pleaded case, the trial Court will have no option than to dismiss the action. A declaratory relief can only be granted on cogent and credible evidence of the Claimant and his witness and not on material contradictions or inconsistent testimonies cutting at the foundation of Claimant’s case. See:-
1. GODDY EDOSA ANOR VS MRS E. OGIEMWANRE (2019) 8 NWLR (PT. 1673) 1 AT 19 B – E per KEKEPE-EKUN, JSC who said:-
“Now, according to PW3, the respondent was given one large room on the left side of the house and a piece of land beside it while the 2nd appellant was given four rooms on the right (see page 36 lines 18-21 of the record). The respondent who testified as PW7 however stated that she was given two rooms as well as the piece of land beside the house. PW6 on the other hand stated that the respondent was given a room and a parlour and that the 2nd appellant was given two rooms and a parlour. These are clearly material contradictions, which further buttress the fact that none of them was present when the sharing allegedly took place. I also agree with learned counsel for the appellants that the evidence of PW3 is at variance with the respondent’s pleading. It ought not to have been relied upon.
The law is settled that it is not all contradictions that would lead to the rejection of the evidence of a witness. However, a contradiction is material and would result in the rejection of such evidence if it relates to or affects the live issue or issues in the matter.

LAND: FACTS TO BE PROVEN TO ESTABLISH THE EXISTENCE OF A PLEDGE UNDER CUSTOMARY LAW

To establish the existence of pledge under customary law as in this case, the party asserting same is expected to prove the following: –
1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.
As I said earlier, it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim. See Adjei v. Dabantea (1930) 1 WACA 63, Akuchie v Nwamadi (1992) 8 NWLR (Pt. 257) 214 at 226, allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one. PER PETER OLABISI IGE, J.C.A.

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF A LOWER COURT

This Court will not lightly interfere in the findings of lower Court particularly when it has to do with the evidence of witnesses before the said Court which has the singular advantage of watching or observing the countenance or demeanour of witnesses that testified before it unless it is shown that the findings or conclusions of the learned trial Judge on oral and documentary evidence before him are perverse. Where the evaluation of the evidence on the printed record is shown to have occasioned a miscarriage of justice this Court will intervene to do justice in the matter. See ADIELE IHUNWO V JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 AT 571 D where ARIWOOLA, JSC said:-
“It has been held that it is trite law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to evaluate its decision even on facts where after giving due regard to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See Okhuarobo Ors v Aigbe (supra).
2. ACHILIHU V ANYATONWU (2013) 12 NWLR (PT. 1368) P. 256 AT 285H to 286 per AKA’AHS, JSC who said:
“This appeal therefore turns on whether the lower Courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate Court should not ordinarily disturb or tamper with the findings of facts made by the trial Court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial Court that saw and heard the witnesses: Emarieru v. Ovirie (1977) Z SC 31; Ogundulu v. Philips(1973) 1 NWLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91; Nor v. Tarkaa (1998) 4 NWLR (Pt. 544) 130 at 139; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SC (Pt. 2) 262 at 266, (2007) 3 NWLR (Pt. 1021) 390. There is an exception to the above rule. The exception is where there is a misdirection by the trial Court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial Court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra). Where a trial Court has drawn wrong inference from primary facts, the appellate Court can reject the inference and make what it considers to be the right inference supported by evidence. It is also trite that where a trial Court has failed, as in the instant case, in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the appeal Court will be perfectly Justified in re-evaluating and re-considering the whole evidence in order to arrive at a just decision. See Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 SCNJ 110, (1991) 1 NWLR (Pt. 167) 290; Onwuka v. Omogui (1992) 3 SCNJ 98 at 116, (1992) 3 NWI-R (Pt. 230) 390; Ebba v. Ogodo (1984) SCNLR 372; Okuoja v. Ishola (1982) 7 SC 314; Finnih v. Imade (1992) 1 SCNJ 87, (1992) 1 NWLR (Pt. 219) 511; A.G., Leventis Ltd. v. Chief Christian Akpu (2007) 17 NWLR (Pt. 1063) 416. ” PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MAMODU OGBOLE APPELANT(S)

And

BABA OGA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Kogi State delivered by Hon. JUSTICE A. N. AWULU in Suit No. AHC/19/2012.

The Respondent who was the claimant at the Court below has by his writ of Summons issued out of said Court on 14th December, 2012 claimed now Appellant the following reliefs:
“(a) An Order directing the Defendant to take his money and hands off from his house situate at Odo-eto-Okpo in Olamaboro Local Government of Kogi State.
(b) A declaration that the Claimant is entitled to redeem his pledge house on the payment of the sum of Fifty Thousand Naira (N50,000) only.
(c) A perpetual injunction restraining the Defendant, his agents, privies and tenants from Claimant’s house or howsoever interfering with the Claimant’s quite possession and enjoyment of the land.
(d) An Order that the Defendant make account for all the rents he has enjoyed from 1997 to date.”

The same reliefs were replicated in paragraph 10 of the Statement of Claim. The matter proceeded to trial after pleadings were duly exchanged. At the end of the trial, the learned trial Judge gave considered judgment in the matter on 1st April, 2014 wherein he found in favour of the Claimant now Respondent as follows:-
“Now, what and what has the claimant proved. The evidence of the Claimant is that he took Fifty Thousand Naira minus Eight Thousand Naira allegedly used for transportation from the defendant to enable him offset a debt. I ask if there was a witness to the transaction. The defendant by paragraph 18 of the statement of defence averred that Danjuma Sule was present. DanJuma Sule testified as PW2. Under Cross-examination, this is what he said. “I was present when the parties agreed on the pledge of the house”. There is admission from the defendant that he has been in possession since 1995. Even though the claimant gave evidence of the possession of the house by the defendant, it was surplusage. What is admitted need no further proof. By the evidence led by the Claimant, the parties agreed that the property will be redeemed when the sum of fifty thousand Naira is repaid. I am mindful that proof in a civil case is on a preponderance of evidence. By this, the case of the parties is weighed, on an imaginary scale of justice to determine in whose favour the scale tilts.
On the whole, I am satisfied that the Claimant has proved that the transaction between him and the defendant was a pledge. Accordingly, judgment is hereby entered in favour of the Claimant. In consequence, it is hereby:
1. Declared that the Claimant is entitled to redeem his pledged house on the payment of Fifty Thousand Naira only to the Defendant.
2. The Defendant is hereby directed to accept Fifty Thousand Naira only from the Claimant being the money paid to him on the pledge of his house.
3. The Defendant, his agents, privies and tenants are hereby perpetually restrained from interfering with Claimant’s quiet possession and enjoyment of the land.
4. The relief praying for the defendant to account for all the rents received till date is refused. This is because a pledgee is entitled to put the pledged property to productive use until the pledge is redeemed. See. Samson Polo v Ekuegbe Oviam Ojor (2003) 3 NWLR (Pt. 807) 344.”

The Appellant was aggrieved by the judgment and has by his Amended NOTICE OF APPEAL dated 29th September, 2017 and filed on 3/10/2017 appealed to this Court on five grounds with their particulars are as follows:-
“PART OF THE DECISION COMPLAINED OF:
The whole decision.
GROUNDS OF APPEAL
GROUND ONE
The Learned Trial Judge erred in Law when he wrongfully rejected Exhibit D1 on ground of non-registration in accordance with Section 15 of Land Registration Law, Cap. 58, Laws of Northern Nigeria.
PARTICULARS OF ERROR
a) Section 15 of the Land Registration Law Cap. 58 Laws of Northern Nigeria does not affect or limit admissibility of sale’s agreement in respect of Land or House.
b) It is trite law that where a purchase or sale agreement was not admissible to prove title for want of registration, it is admissible as a receipt or acknowledgment of payment of money.
c) It is trite principles of law that unregistered registrable instrument are admissible to prove payment of money in respect of sale and equitable interest.
d) The unregistered sale agreement being coupled with possession is a contract or from which arose an equitable interest capable of being converted into a legal estate by specific performance.

GROUND TWO
The trial Court erred in Law when he held thus:
“On the whole, I am satisfied that the claimant has proved that the transaction between him “and the defendant was a pledge” and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
a) The respondent did not discharge the burden proof as provided by Sections 131 and 133 of the Evidence Act, 2011 having failed to lead any evidence with respect to the alleged pledge.
b) It is trite that declaratory reliefs are not granted for the asking even if no evidence is adduced by the opposing. The respondent’s reliefs or claim at the lower Court is declaratory and he failed to prove same.
c) The respondent did not prove the essential ingredients or material facts upon which a finding of facts with respect to the alleged pledge could be made to exist in his favour having “failed to show that there was a pledge agreement, pledge sum and a witness to the alleged pledge.
d) There is no agreement of any pledge before the trial Court.
GROUND THREE
The trial Court erred in law in failing to use the long possession and enjoyment of the subject matter (House) as basis for refusing the claimant claim.
PARTICULARS OF ERROR
a) There was abundant evidence of complete, effective and exclusive possession of the disputed house by the defendant.
b) The claimant and his sole witness, PW2 admitted the fact that the defendant was in possession and has been collecting rent over the same house for years.
GROUND FOUR
The Learned Trial Judge failed to properly evaluate the evidence led before him and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
a) The burden of proof was misplaced.
b) The evidence of the appellant with regard to the circumstances of the sale and payment of the purchase price vis-a-vis the evidence of the respondent with regard to the alleged pledge was not considered and assessed properly.
c) Extrinsic factors were considered and the evidence or the Appellant was rejected upon wrong perception and consideration.
d) The fact that the claimant admitted handling over the house to the defendant after the receipt of money from the defendant.
e) The claimant and his witness admitted that the defendant was not only in possession of the house but also collecting rents from tenants therein.
f) The Court did not consider the material contradictions in the evidence of the claimant and his sale witness.
g) The Court failed to consider the content of Exhibit D1, signed by the parties as document for the sale of the disputed house situate at Odo-Eto, Okpo.
GROUND FIVE
The Judgment of the leaned trial Judge is against the weight thereby occasioned a miscarriage of justice.
3. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i) An Order of Court allowing the appeal
ii) An Order of Court setting aside the judgment of the trial Court dated 1st April, 2014 delivered by Hon Justice A. N. Awulu in Suit No: AHC/19/2012.
iii) An Order of Court dismissing the respondent’s claim.
iv) Cost. ”

The Appellant’s Brief of Argument was dated 25th September, 2017 and filed on 3rd October, 2017 while the Respondent’s Brief dated 20th February, 2018 was filed on 21st February, 2018. It was deemed filed on 23rd May, 2018. Appellant’s Reply Brief of Argument was filed on 25th June, 2018.

The Appellant’s learned Counsel distilled three issues of the appeal as follows:-
“1. Whether the learned trial Judge was right when he held that the respondent proved that the transaction between him and the appellant was a pledge without any evidence of the essential ingredients of pledge.
2. Whether the learned trial Judge rightly rejected and expunged the unregistered sale agreement between the Respondent and the Appellant when same was not intended to prove title.
3. Whether the learned trial Judge properly evaluated the evidence led before him. ”

The learned Counsel to the Respondent adopted the three issues formulated for determination.

The appeal will be determined on the three issues formulated by the Appellant. They will be taken together.
ISSUES
1. Whether the learned trial Judge was right when he held that the respondent proved that the transaction between him and the appellant was a pledge without any evidence of the essential ingredients of pledge.
2. Whether the learned trial Judge rightly rejected and expunged the unregistered sale agreement between the Respondent and the Appellant when same was not intended to prove title.
3. Whether the learned trial judge properly evaluated the evidence led before him.”

It is the submission of the Appellant’s learned Counsel IGEH, ESQ that with reference to paragraphs 6 and 7 of the Statement of Claim, the Appellant joined issues with the Claimant now Respondent in paragraphs 8, 12, 13, 16 and 18 of the Statement of Defence. He stated that the burden of proof was on Respondent to lead credible evidence to establish his claims and establish that the transaction between him as Claimant and Appellant as Defendant in respect of the house or property in dispute was a pledge as alleged by Respondent.

He submitted that the fact that Appellant was in possession of the property in dispute placed burden of proof on Respondent because, according to him there is a presumption of ownership in favour of Appellant because Appellant was in possession. That Respondent who pleaded existence of a pledge has onus to proof it in that a person in possession of land is deemed to be the owner. That all the ingredients of a pledge ought to have been proved by the Respondent who must show that the pledge took place in presence of witnesses, the pledge sum and how the pledgee was put in possession. He relied on the cases of:-
1. DURU OSHIMIR V DURU ODUNZE (2001) 9 NWLR (PART 717) 244 AT 249 B- C;
2. IROEGBU V MPAMA & ORS (2009) LPELR 8510;
3. EZIKE V EGBUABA (2007) LPELR – 5131 CA.
4. NDORO V PIANWII (2003) 5 NWLR (PT. 812) 137 AT 140, 141 & 151.

Learned Counsel to the Appellant submitted that since the claims of Respondent are declaratory in nature it cannot be granted as a matter of course. He relied on the cases of:
1. ABDULLAHI V MILITARY ADMINISTRATOR, KADUNA STATE & ORS (2004) 5 NWLR (PT. 866) 232 AT 263 and
2. METZGER & ORS V DEPT OF HEALTH & SOCIAL SECURITY (1977) 3 ALL ER 444 AT 451.

He accused the lower Court of making a wrong findings on what PW2 said. That what the said PW2 said he witnessed was the alleged sale of the property and not the alleged pledge. He also referred to Cross Examination of the PW2 on pages 10-11 of the record. That the Respondent did not plead witnesses who witnessed the pledge. That the evidence given by the Respondent at the trial on the N50,000 loan was in conflict with his pleading, relying on pages 81 and 85 of the record. That the evidence of PW1 and PW2 being at variance with the pleading should be discountenanced. He relied on ISIKWENU VS IROH (2013) 11 NVVLR (PT. 1365) 256 AT 282. That the pleading of Respondent is bereft of ingredients of a pledge. He urged the Court to resolve issue 1 in favour of Appellant.

On issue 2 as to whether the learned trial Judge rightly rejected or expunged the unregistered Sale Agreement between the Respondent and the Appellant when according to the Appellant the same was not intended to prove title.

He conceded that it is trite that unregistered registerable instrument is inadmissible in evidence where such is tendered to prove title under the land Registration Law Cap 58 Laws of Northern Nigeria. That is equally trite that an unregistered registerable instrument is nevertheless admissible in evidence to establish “anything but legal title to land.” That it is admissible to establish equitable interest of the holder of a land document and as acknowledgment of payment. He made reference to paragraphs 13, 16 and 18 of the Statement of Defence wherein learned Appellant’s Counsel stated it was pleaded as an acknowledgment of Sale of the House in Dispute. He relied on the following cases:-
1. OKOROAFOR V UDENSI (2014) 15 NWLR (PT. 1413) 487 AT 500;
2. FBN PLC V OKELEWU (2013) 13 NWLR (PT. 1372) 435 AT 471 and
3. OLOWOLARAMO V UMECHUKWU (2003) 2 NWLR (PT. 805) 537 AT 551 – 552 E- D.

That the document rejected by lower Court pleaded in paragraph 18 of Statement of Defence is admissible. He urged the Court to resolve issue 2 in Appellant’s favour.

On issue 3 as to whether the lower Court properly evaluated the evidence led at the trial Court, Appellant’s learned Counsel submitted that the trial Court failed to appreciate the preponderance of evidence and did not correctly approach the assessment of evidence led. He reiterated that the learned trial Judge failed to hold that all the ingredients of a pledge were not established by the Respondent particularly an eye witness account to the pledge transaction. That the lower Court wrongly rejected evidence of purchase agreement based on finding on pages 92 – 93 of the record.

He relied again on paragraph 18 of the Statement of Defence to submit again that the unregistered land document was admissible to prove sale of land to the Appellant by Respondent. He also stated that the findings on page 110 of the record is perverse that no credible evidence was led by Respondent and that the evidence of Appellant ought to have been accepted to the effect that there was no pledge transaction between Respondent and the Appellant. That Respondent and his witness have been shown that they are not witnesses of truth. He relied on the case of UBN PLC VS LAWAL (2015) 14 NWLR 203 AT 230 B – C per AUGIE, JCA now JSC.

He urged the Court to resolve issue 3 in Appellant’s favour and to allow the appeal.

In response to the above submission, the Respondent’s learned Counsel DR. S. A. AGADA submitted under issue 1 that on the evidence before the trial Court, the Respondent proved that the transaction between the parties was a pledge and not a sale as contended by the Appellant. That the evidence on record and findings of lower Court tallied with paragraphs 6, 9 and 10 of the witness statement on oath adopted on page 11 of the record.

He submitted that the conditions precedent for interference with the lower Court’s judgment by this Court have not been met by the Appellant citing the cases of;
1. EYIBOH V ABIA (2012) 16 NWLR 51;
2. MOGAJI V ODOFIN (1978) 4 SC 91 (PT 233) 1 and
3. ODINAKA V MOGHALU (1992) 4 NWLR (PT. 233) 1.

It is his submission that all the essential ingredients of a pledge were pleaded and proved by the Respondent and that the trial Court accorded greater value to the version of evidence given by the Respondent.

That the Respondent admitted the essential aspect of a pledge which is ownership of the property and that Respondent gave a vivid account of the problem that led him into pledging or parting possession of the property to Appellant and … Naira to be repaid and then the property be redeemed. That the onus then shifted to the Appellant to prove his ownership of the property. That the Appellant also admitted that N50,000 to the Respondent.

According to the learned Counsel to the Appellant the only dispute was whether the money was a pledge or was for sale which he said it was resolved in Appellant’s favour to be a pledge. That minor discrepancies in the Respondent’s evidence will not avail the Appellant in that they do not amount to material contradiction. He stated that PW2’s evidence is very clear. He stated that it was Appellant who claimed the property was sold to him and that he would call witness. He informed the Court that the Appellant failed to call any witness even though he was many times afforded opportunity to so do at the trial Court.

Dr. Agada contended that the Appellant cannot raise any complaint about PW2’s evidence because he never did at the trial Court. That Appellant did not seek leave to do that in this Court. He urged the Court to discountenance Appellant’s submission.
He urged the Court to resolve issue 1 in Respondent’s favour.

On issue 2, concerning rejection of Appellant’s unregistered Sale Agreement Dr. Agada is of the view that the lower Court rightly rejected the document.

That Respondent filed a Reply dated 13-12-2013 to completely deny the Sale Agreement and that in paragraph 3(a)(b)(d) of the said Reply. He referred to the evidence of Appellant on page 87 of the record whereat the Appellant stated that he bought the house from Claimant and that it was reduced into writing. This he said makes the Agreement inadmissible as it sought to prove Appellant’s title to the property in dispute.

He relied on Section 15 of Land Instrument Registration Law of Northern Nigeria 1963 as excluding the document. Dr. Agada submitted that there was no miscarriage of justice in the rejection of the Agreement. He urged the Court to resolve issue 2 in Respondent’s favour.

On issue three as to proper evaluation of evidence by trial Court, Dr. Agada stated that the judgment is not against the weight of evidence and that lower Court properly appraised the evidence before the lower Court. He submitted that the lower Court appreciated the issue involved and correctly resolved it. That Respondent admitted receiving N50,000 and explained that N8,000 was for transportation. That Appellant admitted that possession was delivered to Appellant and time of repayment stated. That Danjuma Sule was mentioned by both parties in relation to the transaction and that PW2’s evidence was in favour of Respondent hence judgment was given in Respondent’s favour. He urged the Court to dismiss the appeal.

The Appellant’s Reply Brief was a rehash of the argument contained by the main Brief. The Appellant’s Reply Brief is discountenanced.
This Court will not lightly interfere in the findings of lower Court particularly when it has to do with the evidence of witnesses before the said Court which has the singular advantage of watching or observing the countenance or demeanour of witnesses that testified before it unless it is shown that the findings or conclusions of the learned trial Judge on oral and documentary evidence before him are perverse. Where the evaluation of the evidence on the printed record is shown to have occasioned a miscarriage of justice this Court will intervene to do justice in the matter. See ADIELE IHUNWO V JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 AT 571 D where ARIWOOLA, JSC said:-
“It has been held that it is trite law that appeals to the Appellate Courts are by way of rehearing. In hearing an appeal, the appellate Court should reconsider the materials before the trial Court and should not hesitate to evaluate its decision even on facts where after giving due regard to the advantage which the trial Court has of seeing the witnesses, it is clear the decision is wrong. See Okhuarobo Ors v Aigbe (supra).
2. ACHILIHU V ANYATONWU (2013) 12 NWLR (PT. 1368) P. 256 AT 285H to 286 per AKA’AHS, JSC who said:
“This appeal therefore turns on whether the lower Courts conformed with the principles of law regulating proper and correct evaluation and appraisal of evidence. It is settled law that an appellate Court should not ordinarily disturb or tamper with the findings of facts made by the trial Court, particularly if such findings and conclusions reached are supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial Court that saw and heard the witnesses: Emarieru v. Ovirie (1977) Z SC 31; Ogundulu v. Philips(1973) 1 NWLR 267 at 272; Okolo v. Uzoka (1978) 4 SC 77 at 86; Mogaji v. Odofin (1978) 4 SC 91; Nor v. Tarkaa (1998) 4 NWLR (Pt. 544) 130 at 139; Jimoh Garuba v. Isiaka Yahaya (2007) 1 SC (Pt. 2) 262 at 266, (2007) 3 NWLR (Pt. 1021) 390. There is an exception to the above rule. The exception is where there is a misdirection by the trial Court. Misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised or considered or misconceived or the law applicable is incorrectly applied by the trial Court as a result there would be a miscarriage of justice if the decision reached is allowed to stand. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra). Where a trial Court has drawn wrong inference from primary facts, the appellate Court can reject the inference and make what it considers to be the right inference supported by evidence. It is also trite that where a trial Court has failed, as in the instant case, in its duty to properly consider the evidence before it which led it to draw wrong conclusions from the evidence it accepted, the appeal Court will be perfectly Justified in re-evaluating and re-considering the whole evidence in order to arrive at a just decision. See Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 1 SCNJ 110, (1991) 1 NWLR (Pt. 167) 290; Onwuka v. Omogui (1992) 3 SCNJ 98 at 116, (1992) 3 NWI-R (Pt. 230) 390; Ebba v. Ogodo (1984) SCNLR 372; Okuoja v. Ishola (1982) 7 SC 314; Finnih v. Imade (1992) 1 SCNJ 87, (1992) 1 NWLR (Pt. 219) 511; A.G., Leventis Ltd. v. Chief Christian Akpu (2007) 17 NWLR (Pt. 1063) 416. ”

The bone of contention under issue 1 is whether essential ingredients of a pledge were pleaded by the Claimant now Respondent to this appeal.

In paragraphs 1 – 10(a) – (h) of the Statement of Claim, the Claimant now Respondent pleaded as follows:-
“STATEMENT OF CLAIM
1. The Claimant is at all time material to this case, a farmer and resides in Ondo State in Nigeria but hail from Ogene-Iggah in Olamaboro Local Government, within the jurisdiction of the Court.
2. The Claimant is an in-law to the Defendant as the Defendant married Ajietu Shaibu, a relation of the Claimant.
3. The Defendant is a native of Odo-Eto Okpo and resides there.
4. Sometimes in the late 80s to the early 90s the Claimant while working as both farmer and bicycle repairer in Ondo State, bought two pieces plots of land along Ogugu road, Odo-Eto Okpo in Olamaboro Local Government. The land ownership papers are hereby pleaded and shall be relied upon at the trial.
5. In the cause of his stay at Ondo State, he sureties a friend who got the sum of Three Hundred and Fifty Thousand Naira (N350,000) from a Cooperative Society. That friend eventually failed to repay the loan and instead, disappeared and put the Claimant into trouble as he was asked, to pay back the money.
6. The Claimant struggled and rose the about Three Hundred Thousand Naira (N300.000) but could not. raise the balance and ran home under police escort borrow the balance of (N50.000) and met the Defendant and explained his predicament.
7. The Defendant agreed to give the sum Fifty Thousand Naira (N50.000) but he has to get security for his money and the claimant then pledged his six bedroom house on one of his two plots the Defendant and that as soon as he paid back the money, he will collect his house back.
8. That as a result of the multiplier effect of that problem Claimant could not get the Fifty Thousand Naira (N50.000) until this year, 2012 and he alerted the defendant of his desire to redeem the pledge and came home twice to meet the Defendant.
9. The Defendant started employing delay tactics and said there should be a discussion with the Defendant’s family at Ogene-Iggah and in that meeting presided over by the Gago Omaleabu, the Defendant demanded that in addition to his Fifty Thousand Naira (N50.000) Claimant should pay him additional (N3,000,000) as a way of taking over Claimant’s house as his.
10. The Defendant has remained obdurate inspite of all pleas and entreaties that he collects his Fifty Thousand Naira (N50,000) and leave the house of the Claimant.
Whereof the Claimant claims as follows:-
(e) An Order directing the Defendant to take his money and hands off from his house situate at Odo-eto-Okpo in Olamaboro Local Government of Kogi State.
(f) A declaration that the Claimant is entitled to redeem his pledged house on the payment of the of fifty thousand naira (N50.000) only.
(g) A perpetual injunction restraining the Defendant, his agents, privies and tenants from Claimant’s house or howsoever interfering with the claimant’s quite possession and enjoyment of the land.
(h) An Order that the Defendant make account for all the rents he has enjoyed from 1997 to date.
(underlined mine)

The apex Court in the land has in numerous cases decided and stated what constitutes a “pledge’ and how it could be redeemed.
See:-
1. IHUNWO V IHUNWO (SUPRA) AT PAGE 566 where ARIWOOLA, JSC said:-
One, then ask:

what does it mean to pledge? This means “a formal promise or undertaking”. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage.”
“The pledge is said to be as old as recorded history and is still in use. In this transaction, the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid.” See; Black’s Law Dictionary, Ninth Edition page 1272. A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge.
From the findings of the trial Court and the conclusion arrived thereat, it is clear that the trial Judge found that the transaction between the appellant and the respondents evidenced by exhibit is a pledge though not irredeemable.
In the judgment of the Court below per Akpiroroh, JCA on this point the Court held as follows:
“It is my view that the interpretation given to Exhibit B by the learned trial Judge that the transaction contained in it is pledge cannot be faulted and as such the submission of learned senior counsel for the appellant that the learned trial Judge did not make specific findings as to the nature and effects of Exhibit B is clearly misplaced because he carefully and dispassionately considered the nature and its effect. Although inelegantly drafted but in its face are words like “give” and not “sale” which clearly indicate that the transaction was for borrowing money with intention to repay and not an irredeemable pledge or a conditional sale. Besides, the appellant did not plead conditional sale in his statement of claim.”
From the aforesaid, it is clear that the Court below was right in the above holding that the trial Judge made specific findings to the effect that the transaction contained in Exhibit B is a pledge. This issue is accordingly resolved against the appellant.
2. CHIEF BENSON EZIKE & ANOR VS CHIEF EMMANUEL EGBUABA (2019) 6 NWLR (PART 1669) 551 AT 569
“I have reproduced those portions of the judgments of both the trial and Court below to show that the two Courts below actually considered the issue of pledge raised by the appellants at the trial Court. The concurrent findings of the two Courts below is that the appellants failed not only to prove Issue of pledge, but also failed to prove their title to the land which could have enabled their ancestors to pledge the land in the first place.”
Let me take this matter further. To establish the existence of pledge under customary law as in this case, the party asserting same is expected to prove the following: –
1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.
As I said earlier, it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim. See Adjei v. Dabantea (1930) 1 WACA 63, Akuchie v Nwamadi (1992) 8 NWLR (Pt. 257) 214 at 226, allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one. Learned Counsel for the respondent had insisted that the appellants failed to state names of witnesses to the pledge and the fact of pulling the pledgee into possession. According to him, this piece of evidence was introduced by Counsel in his address which the law frowns at. The appellants have no response to this. The truth is that there is no such evidence on the record else, they would have refuted it and referred to the pages of the record which it can be found.
Again, as was pointed out by the learned Counsel for the respondent, it is apparent in the evidence of the appellants’ witnesses i.e. PW1 and PW3, that they contradicted themselves on the parties to the Ilulu Aturu transaction that gave rise to the alleged pledge and the circumstances that led to the pledge, thus rendering the appellants’ evidence on the pledge unreliable. No wonder the learned trial Judge held it to be a hoax and affirmed by the Court below.”

Now what is the evidence called by the Respondent to establish that the transaction between him and the Appellant was a pledge and not a outright sale of the landed property in dispute.
In his Witness Statement on Oath he asserted thus:-
“I am the Claimant herein. I know the Defendant who use to be my in-law and friend.
At all times material to this case, I live and work in Ondo State as a farmer and bicycle repairer. The Defendant married my Sister, Ajietu Shaibu. Sometimes in the early 1990s I sureties a friend in my place at Ondo State who borrowed Three Hundred and Fifty Thousand Naira (N350, 000) from a Cooperative Society but failed to pay and ran away. I was taken to police station and the Court eventually ordered to pay the entire sum of Three Hundred and Fifty Thousand Naira (N350, 000) I could not raise the entire sum and so came home for assistance from my people and friends. It was only the Defendant who agreed to help me on condition that I give something as security for the N50.000 he will give me under the pressure, I pledged my house of six bedrooms to him. The house was new then and tenants were in it paying N500.00 per month per room then. I told the Defendant that as soon as I raised his N50,000 I will bring it back to him collect back my house. Because of the much trouble I faced then, I could not raise the money until this year, 2012 and I called the Defendant on phone and told him that I had raised his money. He said I should come, when I came to him at Okpo, he said I should arrange for my people to be involved in redeeming lily house, I agreed and called my people at Ogene-Iggah and he came there. He now demanded that for helping me, I should in addition to N50,000 pay him (N3000,000). Everybody condemned his action and asked him to take back his money even if he will not render accounts for the rents he collected over the years. He refused and till date, he is collecting rents from my house. That is why I sued him to claim back my house.”

He called PW2 one Danjuma Sule who in his witness statement on oath stated as follows:-
“I Danjuma Sule, policeman serving in South-East states, “Male do state as follows:
“That I know both the Claimant and the Defendant. That I was aware that sometimes around, 1995, the defendant sureties a friend who ran away and the defendant was order to pay the money. That defendant could not raise all the money by himself and went home to Igala-land for help from his people and later came back that the defendant had agreed to help but on condition that he have his building as pledge. That the Defendant and Claimant are in-laws therein. That my name and signature on agreement dated 02-02-1995 is the handwork of the defendant as I am neither aware of any sale of claimant’s house nor signed any agreement to that effect. I am not aware of the agreement. I know that few years ago, the claimant and the defendant are no longer in-laws as Adijetu Shaibu, defendant married when the pledge arrangement was made and no longer his wife as they were having troubles between them. That is all I know.”

Both the Claimant and his witness adopted their respective witness statement on oath under cross-examination PW2 stated as follows:-
The Respondent did not plead in his Statement of Claim the witnesses to his alleged pledge of his house to Appellant for N50,000. He did not plead the name of PW2 DANJUMA SULE as a witness to the said pledge or that the property was handed over to the Appellant in the presence of the PW2. All the facts stated under cross examination concerning PW2 Danjuma Sule were not pleaded by him (Respondent) as Claimant at the lower Court. The Claimant claimed he was a bicycle repairer with PW2 as his apprentice. He also stated as follows under cross examination:-
“The defendant is a transporter. It is not true that the defendant fueled his car and followed me to Owo to negotiate for my bail. He came after we have left and brought twenty thousand naira and no police was involved as I took the money from a co-operative organization. The police never arrested me in connection with the case. Indeed, I came to Okpo with the Secretary of the co-operative and not a policeman. I did not state in my statement that police escorted me to Okpo. There was no written agreement that I pledged my house. We agreed that he should be collecting rents which should stop upon payment of the money borrowed. We did not reduce the agreement on collection of rents into writing. Danjuma Sule was apprentice. When he graduated, he settled at Uso but as at the time of the agreement with the defendant, he was still with me. Danjuma Sule is now a policeman. Danjuma is the son of my elder brother Sule.
The house has never been repaired by the defendant as it has never suffered any damage. There was no stated number of years agreed between us for me to repay the money. The defendant is in-law because he is married to Adijetu Shaibu, my relation. Adijetu Shaibu was not present when is no longer married to the defendant. I would not know if the defendant was the owner of the 504 station wagon he was driving as at 1995. I do know how the defendant raised the money he gave me.
Re Examination – Nil.”

In his own testimonies, the said DANJUMA SULE (PW2) said under cross examination as follow:-
“My name is Danjuma Sule, I am a policeman, I am presently serving in Abia State. I made a statement in this case on 17th May, 2013. I adopt the said statement.
Cxxn,
I am a corporal in the Nigerian Police Force. I completed Secondary School Education. I finished my secondary school in 2002. The claimant is my uncle. I was enlisted into the Police Force on 1st April, 2003. It is not true that I was a bicycle repairer before I joined the police force. Previously, I was living with the claimant in Ondo State. It is not true that we were living at No. 13 Idemo Street, Uso, Ondo State. We were living at Amurin in Ondo State. I was only living with my uncle and was not been trained in bicycle repairs. I know the house, the subject of dispute in this suit. It is louted along Ogugu road, Okpo. I do not know the number of rooms but I know the building. The defendant has been in possession of the house for the past eighteen years. All the defendants there are living there at the instance of the defendant. I was aware when the defendant gave twenty thousand naira to the claimant but I am not aware of fifty thousand. I did not sign any agreement on the pledge of the house. Parties agreed on the of the house. There was no specific number of years mentioned by the agreement. When the claimant was arrested and brought down to Okpo, I did not accompany them. It is not true that Adijetu Shaibu was present when the parties entered into an agreement on the house. By 1995; I had finished primary school and could read and write.
Reexamination Nil.”

The evidence given under cross-examination is significantly different from his witness statement on oath where he stated:-
“The defendant could not raise all the money by himself and went home to Igala-Land for help from people and came back. That the Defendant had agreed to help but on condition that he gave his building as a pledge.”

This means that PW2 was not a witness to the alleged pledge of the house to the Appellant by the Respondent. He said that he was not a witness to any sale agreement in the agreement dated 2/2/1995.

I agree with the learned Counsel to the Appellant that there are some material contradictions in the evidence of PW 1 and PW2 on material issue of whether the property in dispute was actually pledged or it was an outright sale. From the contradictions in his witness statement on oath and his oral evidence under cross examination, PW2 was and is not a witness to the alleged pledged of the property in dispute. While he claimed (PW2) that the Appellant gave twenty thousand Naira to the Claimant now Respondent, the later claimed he paid N50,000 which the said Danjuma Sule (PW2) stated he was not aware of.

See: Egesimba v. Onuzuruike (2002) 9 SCNJ 46, (2002) 15 NWLR (Pt. 791) 466; Nsirim v. Nsirim (2002) 2 SCNJ 46; (2002) 3 NWLR (Pt. 755) 697; Ezemba v. Ibeneme & Anor (2004) 7 SCNJ 136, (2004) 14 NWLR (Pt. 894) 617; Wachukwu Anor v. Owunwanne & Anor (2011) LPELR-3466 (SC) @ 33 – 34 F- A, (2011) 14 NWLR (Pt. 1266)
1. The sharing of the property of the deceased inter vivos is the entire foundation of the respondent’s claim. Contradictions in the evidence relating thereto are therefore material. As observed earlier, the principle in Kojo v. Bonsie (supra) cannot be relied upon to justify the inconsistencies.”
2. HON. BASSEY ETIM VS HON. BASSEY ALBERT AKPAN & ORS (2019) 1 NWLR (PART 1654) 451 AT 470 D – G per NWEZE, JSC who said:
“Unfortunately, the testimonies, which he, (the appellant), adduced were so evidently contradictory end exhibit was the result sheet of a primary election, the conduct of which, was authorized by the National Working Committee of the second respondent as required by law.
The effect is that these conflicting versions render his evidence very unreliable and untenable. See C.O.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 300. This must be so because such contradictions in the evidence of the inconsistent that they could not establish that the said plaintiff and his witness are disastrous; they actually have the effect of destroying the case of the plaintiff. Audu v. Guta (2004) 4 NWLR (Pt. 864) 463.
As this Court held in National Investment Properties Co. Ltd. v. The Thompson Organization Ltd. and Ors (1959) NMLR 99, 104, (1969) 1 SCNLR 279:
A plaintiff must call evidence in support of his pleadings and evidence which is in fact adduced, which is contrary to his pleadings, should never be admitted. It makes no difference that the other side did not object or that the Judge did not reject it. It is of course the duty of counsel to object to, in one word, inadmissible evidence; but if notwithstanding this, evidence is still, through oversight or otherwise admitted, then it is the duty of the Court when it comes to give Judgment to treat the inadmissible evidence as if it had never been admitted.
The explanation for this prescription is simple, the standard of proof is on the preponderance of evidence. Thus, where the evidence adduced by the plaintiff is contradictory, he would have failed to discharge the onus of proof on him. See Yakubu v. Jauroyel and Ors (2014) LPELR – 22732 (SC) 69: E – G. That was the fate of the plaintiff’s case at the trial Court. His case must therefore fail.”

The evidence of PW2 as contained in his statement on oath dated 17th May, 2012 page 32 of the record is no doubt hearsay evidence that cannot attract any weight in evaluation of evidence led by the Claimant to support his claim for redemption of the alleged pledge which Claimant sought to redeem and he cannot rely on hearsay evidence of a witness the Claimants claimed had witnessed the pledge transaction.
The learned Counsel to the Appellant was right in his submission that PW2 was not present when the alleged pledge of Respondent’s property to Appellant took place as a result of a loan agreement entered into. PW2 evidence is of no probative value to Respondent’s case, being hearsay evidence. See Section 37 of the Evidence Act 2011 which provides:-
“Hearsay means a statement;
(a) oral or written made otherwise that by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of providing the truth of the matter stated in it.
See also;
1. GODDY EDOSA ANOR V MRS E. OGIEMWANRE (2019) 8 NWLR (PART 1673) 1 AT 28 D – E per GALUMJE, JSC who said:-
“Relevant to this judgment is Section 37(a) of the Evidence Act. Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:-
“Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
Finally Section 38 of the Evidence Act 2011 outrighly prohibits the admission of hearsay evidence except as provided by the Evidence Act in the following words:-
“Hearsay evidence is not admissible except as provided in this part or under any other provision of this or any other Act.”
From the above analysis therefore hearsay testimony is inadmissible. in evidence, much as the evidence tends to establish the truth of what the witnesses were told, except it is proved that the exceptions under Section 39 of the Evidence Act exist. In the instant case, the testimony of DW2, DW3, in which the two lower Courts placed reliance on are hearsay and inadmissible. The evidence of PW6 did not state that one of the two houses that were share was given to the respondent and again he did not state that he actually witnessed the sharing of the property of Onwenke Agho. His evidence is therefore not very helpful to the respondent. See A-G., Rivers State v. A. -G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31.”
2. WADA IDI VS THE STATE (2019) 15 NWLR (PART 1696) 448 AT 471 A – C per GALUMJE, JSC who said:-
“By Section 126(b) of the Evidence Act, 2011, oral evidence must, in all cases whatever, be direct, if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407. In Utteh v. The State (1992) 2 NWLR (Pt. 223) at 257, this Court, per Nnemeka-Agu, JSC had this to say on hearsay evidence as follows:-
“The evidence of a statement made to a witness by a person who is not himself as a witness mayor may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that It was made.”
The pledge transaction was not witnessed by any person and that being the case the Respondent cannot be said to have established that he gave his house to Appellant since 1995 as a pledge that could be redeemed at any time. There is no credible evidence upon which to make the findings that there was a pledge between the parties over the landed property in dispute as erroneously found by the lower Court. The Respondent did not meet vital criteria of proving or establishing a pledge transaction as laid down by the apex Court. See EZIKE V EGBUABA SUPRA 561 – 562 A – C per OKORO, JSC.
Issue 1 is resolved in Appellant’s favour.

The crux of the matter under issue 2 is whether an unregistered registerable instrument is admissible in evidence to support entitlement to land subject matter if an action. The Appellant had pledged that there was no pledge transaction between him and the Respondent but that the Respondent had actually sold his house to him outrightly for N50,000 and that a Lawyer was engaged to draft an agreement to evidence the sale. He pledged in paragraph 18 of his statement of defence as follows:-
“18. The defendant aver that the Claimant and himself engaged a lawyer at Owo, who therefore wrote an agreement between them with Danjgma Sule as a Witness to the defendant. The said agreement wherein the Claimant sold the house in dispute to the defendant is hereby pleaded and shall be relied upon.”
On 10/1/2014 when the defence opened, the Appellant’s Counsel sought to tender the pleaded document but was objected to on the ground that it was not registered and that by Section 15 of Land Registration Law of Northern Nigeria the Agreement was inadmissible. Ruling on the objection, the learned trial Judge agreed with objection of Respondent’s learned Counsel. The learned trial Judge held on page 92 of the record thus:-
“Apparently, the purpose of the agreement in the suit is to establish the transfer of title to the defendant. The law requires the document to be registered. The failure is fatal to admissibility. I uphold the objection on this ground.”
It is true that the document is a registerable Instrument affecting land but the lack of registration does not render it inadmissible. It remains an agreement or contract for sale of land which could be pleaded even as a receipt of purchase of the land in dispute coupled with interest. In any event, the apex Court in the land has held that Land Instrument Registration Law made by a State Legislation cannot exclude the tendering of such document on ground of non-registration having regard to the provisions of the Evidence Act 2011 as amended governing admissibility of evidence including documentary evidence. See;
1. MOSSES BENJAMIN V MR ADOKIYE KALIO & ANOR (2018) 15 NWLR (PART 1641) 38 AT 51 – H TO 52 A – E per EKO, J SC, who said:-
“Under the 1979 Constitution, evidence was brought into the exclusive legislative list as item 23. It has remained so since then. It is currently Item 23 of the Exclusive Legislative List in Part I in the Second Schedule of the extant Constitution. Section 4 (3) (5) of the 1999 Constitution, as amended, states in clear and unambiguous terms:
(3). The power of the National Assembly to make laws for peace, order and good government of the federation with respect to matter included in the Exclusive Legislative List shall save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States-
(5). If any law enacted by the House of Assembly of State is inconsistent with any law validly made by the National Assembly, the haw made by National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.
The undoubted intent of the current Constitution, (as amended), from Section 4 (3) (5) of the same Constitution 1999 is that the State houses of assembly are precluded and prohibited from enacting any laws on evidence law and/or admissibility of evidence in the proceedings before the law Courts in the Federal Republic. The Evidence Act is an Act of the National Assembly or an Act deemed to have been enacted by the National Assembly pursuant to its legislative powers under the Constitution since 1979 to date.
It is obvious to me, upon painstaking and dispassionate perusal of Section 20 of the Law, Cap. 74 of Rivers State that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical that no land instrument, mandatorily registerable, which is not so registered “shall not be pleaded or given in evidence in any Court as affecting any land”. This clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 20 of the Law Cap. 74 of Rivers State has therefore rendered inadmissible Exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act.
Because, in firm view, Exhibit L is a piece of evidence pleadable and admissible in evidence by virtue of the Evidence Act read together with item 23 of the Exclusive Legislative List and Section 4 (3) (5) of 1999 Constitution as amended (and the provisions in pari materia with Section 4 (3) and (5) of the 1979 Constitution), it cannot, accordingly, be rendered unpleadable and inadmissible in evidence in any proceedings before any Court of law by any law enacted by the State House of Assembly as the Rivers State House of Assembly had purportedly done by their enactment of Section 20 of the Law, Cap. 74.
In my firm view, the argument of the appellant, that Section 20 of the Land Instruments (Preparation and Registration) Law Cap. 74 of the Laws of Rivers State, has rendered Exhibit L, a Land Instrument, unpleadable and inadmissible in the proceedings at the trial Court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law, admissibility of Exhibit L is governed by Evidence Act; not the Rivers State Land instrument (Preparation and Registration) Law, Cap 74. In my judgment, a piece of evidence pleadable and admissible in evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by a State House of Assembly under the prevailing constitutional dispensation. The learned trial Judge (Mary Peter-Odili, J – as she then was) was therefore right when she stated at page 141 of the records that Exhibit L was “properly pleaded and cannot therefore be said to be inadmissible”.
The duty on every law Court, as this Court stated inShittu v. Fashawe (2005) 14 NWLR (Pt.946) 67 at 690 – 691, in every proceeding is to admit and act only on evidence that is admissible in law under the Evidence Act or any other relevant law (validly enacted, r must say).
Even if Section 20 of the Rivers State Law, Cap. 74 were applicable in the circumstances of this case I will still rule in favour of the position adopted by the respondent that an unregistered “registrable land” instrument is admissible in evidence to prove, not only the payment and receipt of the purchase price, but also the equitable interest of the purchaser in the subject land. That has been the entrenched position in our jurisprudence until evidence was lifted into the exclusive legislative list in the second schedule to the Constitution as can be seen from the following cases, among others – Savage v. Sarrough (1937) 13 NLR 141; Ogunbanibi v. Abowab (1951) 13 WACA 22; Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All NLR 74; Oni v. Arimoro (1973) 3 SC 163; Buckner-Maclean v. Inlaks (1980) 8 – 11 SC 1; Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt 4) 783; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167 etc.
The totality of all I had stated under this sub-issue is that the Land instrument, Exhibit L, was properly pleaded and admitted in evidence. The trial Court was right in acting on it as a piece of legal evidence before it. The lower Court had no difficulty affirming the position of the trial Court on this. ”
2. CSP L. L. ANAGBADO V ALHAJI IDI FARUK (2019) 1 NWLR (PART 1653) 292 AT 311 F – H TO 312 A – B again per EKO, JSC who said:-
“The appellant had made an issue of whether Exhibit P2, the letter of offer issued to the respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law, Cap. 85, Laws of Kaduna State, 1991 before it would be admissible in evidence. Section is of the said Law, Cap. 85, provides:
“No instruments shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.”
The purport of this law, as argued by the appellant, is that a registrable land instrument, which though is a material relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law, Cap. 85 is not admissible in evidence in any Court or law. The argument neither impresses nor convinces me.
The Law Cap. 85 of Kaduna State (section is thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and item 23 of A the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution. Evidence is item 23 in the Exclusive Legislative List. I am of the firm view that, in view or Section 4(5) of the Constitution bead with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law, Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law, Cap. 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State.”
The document pleaded by the Appellant is clearly admissible and was wrongfully rejected.
Issue 2 is resolved against the Respondent.

Issue three borders on whether the lower Court properly evaluated the evidence preferred before it.

In the result, Appellant’s appeal has merit and his appeal is hereby allowed. The judgment of the KOGI STATE HIGH COURT OF JUSTICE delivered on 1st April, 2014 (Coram AWULU – J) IS HEREBY SET ASIDE.

The Suit of the Respondent and Claimant at the lower Court SUIT NO. AHC/19/2012 – BABA OGA VS MAMODU OGBOLE IS HEREBY DISMISSED.
The Respondent shall pay N50,000 (Fifty Thousand Naira) Costs to the Appellant.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Peter Olabisi lge, JCA.

I agree with the reasoning and conclusion reached therein. I therefore allow the appeal and abide by all the orders made therein.
I make no order as to costs.

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MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother, PETER OLABISI IGE JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

A. O. IGEH, ESQ. For Appellant(s)

DR. S. A. AGADA For Respondent(s)