OKOLO ENTERPRISES NIGERIA LIMITED & ANOR v. HENRY NWACHUKWU EZEANI (JNR)
(2013)LCN/6682(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of December, 2013
CA/E/323/2006
RATIO
CRITERIA FOR ADMISSIBILITY OF A DOCUMENT
The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern admissibility of a document namely:
(a) Is the document pleaded
(b) Is it relevant to the inquiry being tried by the court and
(c) Is it admissible in law. See OKONJI v. NJOKANMA (1999) 14 NWLR (PT. 638) 250; DUNIYA V JIMOH (1994) 3 NWLR (PT. 334) at 609, OYEDIRAN V ALEBIOSU II (1992) 6 NWLR (PT. 249) 550 referred to P. 266 paras C-D. Per ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADRIZA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. OKOLO ENTERPRISES NIGERIA LTD
2. MRS VICTORIA N. NNAKA Appellant(s)
AND
HENRY NWACHUKWU EZEANI (JNR)
(For himself and on behalf of Late Henry N. Ezeani of Umunri, Neni) Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This appeal was brought pursuant to the decision of the High Court of Justice, Anambra State sitting at Onitsha Judicial Division per Hon. Justice J. I. Nweze on Tuesday, the 28th day of February, 2006 in suit No. 0/168/2005.
The Appellants in this appeal were the plaintiffs at the Lower Court while the defendant is now the respondent. I shall therefore in the subsequent portions of this judgment be referring to the parties as the appellants and the respondent.
On the 15th day of January, 1981, the Appellants entered into a Deed of Lease with the respondent on the understanding that the Appellants would erect a four (4) storey building on the Respondent’s land situate at No. 17 New Market Road, Onitsha upon calculated expenses of N94, 000 (Ninety four thousand Naira) which the Appellants would recoup gradually upon taken possession of the said building for twelve and half years. The crux of the instant litigation was that the Appellants were informed by some agents for sale of landed property that the respondent intends to sell the building at No. 17 New Market Road, Onitsha at the cost of 54 million naira hence on 22nd March 2005 they filed an action against the respondent, claiming inter alia:
“(i) A declaration that the agreement as to rent payable on the expiration of lease is still subsisting.”
(ii) An order of injunction restraining the defendant, his servants, agents and privies from selling the said property and or entering with the possessory right of the plaintiff over 17 New Market Road, Onitsha”.
On the 4th day of May, 2005, the Respondent filed a motion in the same suit, seeking for the following reliefs:
“(A) An order appointing the Assistant Chief Registrar of the High Court of Justice, Onitsha Judicial Division, the receiver/manager of the applicant’s building situate at No. 17 New Market Road, Onitsha, except the 3rd floor thereof.
(B) An order removing the said building except the 3rd floor from the control of the plaintiffs/respondents and committing same to the custody and control of the said receiver/manager.
(C) An order granting to the said receiver/manager all such powers necessary for the management of the said building and the collection of the rents and profits therefrom.
And for such other or further orders as this court may deem fit to make in the circumstances.
On 19th day of May 2005, the respondent formerly filed a Statement of Defence cum counter claim against the Appellants’ Statement of Claim.
In his counter claim against the Plaintiffs/Appellant, the Defendant/Respondent sought as follows:
“(A) A declaration that defendant (sic) is the owner in reversion of the premises situate at No. 17 New Market Road, Onitsha since August, 1993.
(B) An order of account of all the monies received by the Plaintiffs from all tenants mentioned above and other not known by name, as rents in connection with the premises except the 3rd floor, from August 1993 till the present date.
(D) An order for payment over to the defendant of the said sums of money ascertained upon the account above being taken.
(E) An injunction restraining the plaintiffs, agents, servants, privies etc from demanding and or receiving any money as rents whatever (sic) from occupiers of the premises”.
Written addresses were filed and exchanged by the legal representatives to the parties. The trial court in a considered ruling on 26/05/2005 granted the reliefs sought by the respondent and consequently ordered the appointment of Mr. C. N. Ezebuilo, the Assistant Chief Registrar of the High Court, Onitsha judicial Division as the Receiver/Manager of the building except the 3rd floor thereof situate and being at No. 17 New Market Road, Onitsha. The Court further ordered for the accelerated hearing of the suit. See pages 38-41 of the record.
The trial Court commenced trial in the suit on 18th July, 2005. It concluded and delivered its final judgment on 28/02/2006 wherein the Appellants’ action was dismissed. See pages 55-59 of the record. The Appellants being poised with disagreement over the whole decision of the court then brought this appeal vide Notice of Appeal containing two grounds as filed on 16th May, 2006.
The grounds of appeal are hereunder reproduced:
GROUND 1
The learned trial court erred in law when in dismissing the appellants’ case he expunged exhibit P.1 as inadmissible and held that in the absence of any evidence (lease agreement the basis of the contract) of any such contract which the plaintiffs say subsists, the plaintiffs’ claim for a declaration fails.
GROUND 2
The learned trial court erred in law when he held that on the expiration therefore (of a term of twelve and half years) the plaintiffs became tenants at Will of the defendants when the lease agreement provided that on the expiration of the term of twelve and half years the plaintiff will resume to pay the annual rent agreed upon with the landlord for future years.
In accordance with the rules of this court, the parties through their legal representatives filed and exchanged their briefs of argument. The Appellants Brief of Argument dated 13/09/2007 and filed on the same date was settled by C. J. ASIEGBU Esq. for the Appellants. The Respondent’s Brief of Argument dated 8/03/2008 and filed on the same date was settled by O. B. ERINNE ESQ for the Respondent. The appeal was taken on the 10/10/2013.
In the Appellants’ brief, the learned counsel for the Appellants formulated two (2) issues for determination of the appeal. The issues read thus:
“01. Whether the learned trial court was right in expunging Exhibit P.1 from the record of the Court as inadmissible and on the strength of that dismissed the appellant’s case.
02. Whether the learned trial Court did not commit a fundamental error of law when after expunging Ex.P1 from the records of the Court as inadmissible evidence he turned round and adjudged the appellants as tenant at will and whether this did not amount to legal somersault?
In his argument on issue 01, the learned counsel for the Appellants concedes to the fact that Exhibit P1 is an instrument within the meaning of Section 2 of Land Instruments (Preparation and Registration Law) of Anambra State and having regard to Section 15 of the said Law, no registrable instrument which has not been registered should be given in evidence. He submits that a registrable instrument which has not been registered can be admitted in evidence to prove equitable interest and to prove payment of purchase price or rent or that there is a contract between the parties. He relies on the cases of AWAOGBO v. EZE (1995) 1 NWLR (Pt 372) Page 393 at 406 Para E-F ratio 2 and OKOYE v. DUMEZ NIG LTD & ANOR (1985) 1 NWLR (Pt. 4) page 783 1 at 790 E-G, He contends that the only ground for dismissing the appellants’ case is the inadmissibility of Exhibit P1. He urges this court to hold that Exhibit P. 1 is admissible and set aside the judgment of the trial Court.
On the issue 02, the learned counsel for the Appellants emphasizes that the trial court after expunging Exhibit P.1 from the records of the court turned round to make reference to it thereby adjudging the appellants as tenants at will. He urges this court to hold that the judgment of the trial court is ambivalent. He cites the case of BANK OF THE NORTH LTD V. IDIRISU (2000) 3 NWLR PT 649 PAGE 373 AT 389 PARAS H-A. In conclusion, he urges this Court to set aside the judgment and enter judgment for the appellants as claimed on the ground that Exhibit P.1 is admissible and there was a binding contract between the parties.
The Respondent through his lawyer formulated three (3) issues in his brief of argument.
The issues read thus:
“01 whether the judgment of the learned trial judge dismissing the appellant’s case was based solely on the expunged exhibit P1.
02. Whether there occasioned a miscarriage of justice by the learned trial judge expunging Exhibit P1 and nonetheless thereafter evaluated the evidence led before arriving at its conclusion.
03 Whether the judgment on the counter claim, not appealed against does not adversely affect this appeal and render same useless.”
The contention of the learned respondent’s counsel on issue 01 is that the judgment of the learned trial judge was not based solely on the expunged Exhibit P1, as alleged by the appellants. He however conceded that the learned trial judge may have been wrong to declare the unregistered land instrument inadmissible for all purposes, but contends that such act did not affect the final decision reached by the trial court in the case. He cited the case of OKOYE V DUMEZ NIG LTD (1985) 1 NWLR (Pt. 4) 783 in aid.
On issue 02, the respondent’s counsel submitted that a document is admitted in evidence for specific purpose, but the onus is on the party who pleads same to lay the evidential foundation thereof. He cited the case of OKONJO v. NJOKANMA (1999) 12 KLR (Pt. P3) 3109 and AGBAHOMOVO v EDUYEGBE (1999) 2 KLR (PT. 78) 437 in aid. He contends that the appellants in their evidence merely tendered Exhibit P1 to show that there was a lease agreement which had expired, but the exhibit shows no payment of rent or purchase price by the Appellants except the existence of an expired lease.
On issue 03, the learned counsel refers to page 58 of the record to emphasize that the trial court considered the rights and obligations of the appellants before reaching its decision. He contends that the learned trial judge did not base his judgment solely on the expunged exhibit P1. He cites OKOYE V DUMEZ (Supra) at P. 790 in aid. He further contends that the trial court was neither perverse nor occasioned a miscarriage of justice by expunging Exhibit P1, because notwithstanding the expunging of Exhibit P1, the Court still decided the case on its merit based on the evidence led. He refers to the case of AWAOGBO V EZE (1995) 1 NWLR (Pt. 372) 393, S. 227 (2) of the Evidence Act, TIMITIMI & ORS v. AMABEBE & ORS (1953) 14 WACA 374 and OKONJI V. NJOKANMA (Supra) in aid. In his further reliance on the case of BALOGUN V ADEJOBI (1995) 1 KLR (Pt 27) 252, the respondent’s counsel contends that the appellants are struggling to achieve nothing since they did not defend the counter claim of the respondent at the trial court. He emphasized that the lower court has adjudge the respondent the owner in reversion of the property since August, 1993 claim. He further pointed out that the decision of the court in that regard has not been challenged or appealed. In conclusion, the learned counsel urges this Honourable Court to dismiss this appeal.
I will now proceed to determine this appeal in examining the formulated issues and authorities posited by the parties in the appeal. These issues have been copiously reproduced at pages 5 and 7 of this judgment.
Appellants’ Issue 01
The learned trial judge in his judgment at page 57 of the record had these to say:
“in the instant case, the plaintiffs relied on Exhibit P.1 as basis of the relief sought. I have looked at Exhibit P.1 carefully, It is clearly an instrument affecting land within the meaning of section 2 of the Land instrument (preparation and Registration law) of Anambra State. I have not seen any evidence that it was registered and the particulars of registration is not pleaded giving the impression that it was in fact not registered. In my view by virtue of Section 22 of the Land Instrument (Preparation and Registration) Law Cap 75, it can neither be pleaded not (sic) given in evidence, See OJUGBELE V OLASOJI (1982) ALL NLR 45”.
The Supreme Court of Nigeria in ratio 1 of the decided case of AWAOGBO v EZE (1995) 1 NWLR (PT. 371) 373 AT p. 379 held that an unregistered lease agreement is an instrument within the meaning of Section 2 of the Land Instrument Registration Law and having regard to the mandatory provision of Section 15 of the said law, no registrable instrument which has not been registered should be given in evidence.
The Apex Court went further to state that however, it is too wide to conclude that as a result, no title could be based on the unregistered lease agreement. The court further stated that no legal title could be based on it, but equitable title or interest could. See also the case of OKOYE v. DUMEZ NIG LTD (1985) 1 NWLR (Pt. 4) 783 referred to and applied (P. 406 para C-D)
The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern admissibility of a document namely:
(a) Is the document pleaded
(b) Is it relevant to the inquiry being tried by the court and
(c) Is it admissible in law. See OKONJI v. NJOKANMA (1999) 14 NWLR (PT. 638) 250; DUNIYA V JIMOH (1994) 3 NWLR (PT. 334) at 609, OYEDIRAN V ALEBIOSU II (1992) 6 NWLR (PT. 249) 550 referred to P. 266 paras C-D.
A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment or purchase money or rent. See OKOYE V DUMEZ NIG LTD cited by both parties in their briefs of argument.
In the instant case, what brought the parties together was a lease agreement, which empowered the Appellants to build on the virgin land belonging to the Respondent.
The interest of the parties over the developed land is guided by the regulating clauses contained in the drafted agreement which was admitted by the parties to have taken effect from 15th January, 1981. The contention of the appellants in the suit is that the Lease Agreement is subsisting while the Respondent engages in the bargain for outright sale of the property.
In the case of JOSEPH AGBAHOMOVO v. APATA EDUYEGBE & 6 ORS (1999) 3 NWLR (Pt. 594) P. 170 cited by the respondent in this appeal, the Supreme Court of Nigeria held that admissibility of evidence depends on the purpose for which it is being tendered. Thus the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue.
I think it would have been proper for the trial judge to look into the relevance of exhibit P1 already admitted, instead of expunging same. This is so because the Exhibit P.1 in question was meant to guide the court to elicit facts as to the origin and interpretation of the clauses attached to the lease agreement, not to confer any root of title to the appellants in relation to the property under reference. From the said exhibit P1, the equitable right of the parties could be deduced.
I find it difficult to place the reasoning of the trial judge that the defendant having admitted in his statement of defence that there was a 12-1/2 years lease between him and the Appellants is enough proof of his case in law, which the foundation of the evidence has been destroyed by the Exhibit P.1 having been expunged, the contents of which stand as cardinal proof of the case of the parties. In the light of the foregoing analysis, I am of the opinion that the learned trial court was wrong in the expunging of Exhibit P.1 from the court record. In this circumstance, the issue is resolved in favour of the appellant.
Appellants Issue 02
At page 58 of the record, the learned trial judge emphatically stated thus:
“I notwithstanding consider the case on the merit. As pointed out above, it is common ground between the parties that the lease in this case expired in July 1993. The law is that where a tenant continues in possession after the expiration of the term granted he becomes a statutory tenant.”
He went further to state thus:
“In the instant case, the lease was for a term of 12-1/2 years. On the expiration therefore the plaintiffs became tenants at will of the Defendant”.
Exhibit P.1 was tendered in evidence by GBEMUDU ESQ of counsel for the appellants in the open court on 5/10/2005 and the counsel for the Defendant did not object to its submission. See lines 1 and 2 at page 45 of the record. Even the D.W.1 relied heavily on Exhibit P. 1 for his defence and counter claim. It is therefore amazing that the learned trial judge after expunging Exhibit P.1 somersaulted back to erect imaginative structure on a destroyed foundation. The position of the law we know is that a suspended object on nothing cannot stand as there is no foundation supporting same.
I quite agree with the submission of the learned counsel for the Appellants that the reversion of the property under reference to the respondent after 12-1/2 years is subject to the provision of paragraph ‘g’ of the lease agreement. I must feel free to say that the learned trial judge either by act or error of omission overlooked the sensitive relevance of paragraph ‘g’ of the lease agreement and consequently expunged it from the record of the court. In this circumstance, I resolve this issue in favour of the appellants.
I will determine the respondent’s issues 01 and 02 together as they have the target setting of the mindset and opinion required in issues 01 & 02 of the Appellant’s brief.
RESPONDENT’S ISSUES 01 AND 02
In discussing these issues, I think it is of obvious necessity to reproduce the opinion of the learned trial judge as lifted from pages 57 to 58 of the record.
“In the circumstances therefore exhibit P. 1 is inadmissible and is hereby expunged from the records of this Court.
Having expunged Exhibit P.1 is there any evidence of the right claimed by the plaintiffs. No facts admitted need no further proof. In the statement of defence, the Defendant admitted that there was a lease for a term of 12-1/2 years. It was admitted that the term has expired.
Other than the above the Defendants (sic) case from the entire tenor of his statement of defence is that the plaintiffs are not entitled to their claim. Consequently, I hold that the Defendant has not admitted the Plaintiff’s claim. In the absence of such an admission and the absence of any evidence of any such contract which the plaintiffs say subsists, the plaintiffs claim for a declaration fails.”
My constructive reasoning in analyzing the passage reproduced above is that the learned trial judge dismissed the appellants’ case solely on the expunged exhibit P.1. I am also of the informed opinion that if the learned trial judge had not shut his eyes to the obvious, he would have arrived at a different conclusion in the matter.
I took my time to read through the entire record of proceedings in this appeal. I came across a Deed of Lease marked Exhibit C at page 23 of the record. It is in pari materia with the Exhibit P.1 expunged and it was tendered by the defendant’s counsel in support of his further affidavit at page 22 of the record.
The Appellants through their counsel GBEMUDU ESQ in the open court on 5/10/2005 tendered exhibit P.1, while the defendant’s counsel was not in opposition. See page 45 of the record. The P.W.1 Prince Anthony Ezennia Okolo under cross-examination at Pp. 45-46 of the record stated thus:
“It is not true that on the expiration of the 12-1/2 years, the ownership of the building reversed to the defendant. It is not true that the plaintiffs has (sic) ever admitted that the building is owned by the defendant”.
The D.W.1 Henry Nwachukwu Ezeani in his evidence at page 51 of the record stated thus:
“I entered a lease agreement with the plaintiffs and not my father. The intention was that the defendant should build the place use it for 12-1/2 years after which the property reverts back to me”.
He went further to say;
“In 0/232/2004, I was the plaintiff while the plaintiffs were the defendants. In that case I prayed the court to interpret paragraph ‘g’ of the agreement which is exhibit P.1 in these proceedings. The court dismissed that suit”.
I know as an obvious fact that what could have settled the lingering misconception between the parties is the interpretation of paragraph ‘g’ of the lease agreement, Exhibit P.1 which unfortunately was expunged by the learned trial judge on the course of writing his judgment.
Paragraph ‘g’ of the Deed of Lease Exhibit P.1. provides thus:
“The tenants will recoup themselves of their investment of the N94,000.00 (Ninety four thousand naira) at the rate of N7,535.00 per annum within the term of 12-1/2 years in which they will not pay any rents. At the end of this said term of 12-1/2 years, the tenants will resume to pay the annual rents agreed upon with the landlords for the future years.”
Miscarriage of justice is said to occur when a judge does what he is not supposed to do or fails to do what he is supposed to do while sitting as an empire in the temple of justice, the result of which affects the sound judgment of the judge. In the instant case, the prime contention of the appellants at the trial court was Exhibit P1 – the Deed of Lease entered into between the appellants and the respondent in 1981. The trial judge shut his eyes to the obvious by expunging the exhibit that was formerly admitted in court and consequently reached a decision which ordinarily would have been the other way round if the exhibit was not expunged. In the light of the foregoing analysis, my answer to the Respondent’s issues 01 and 02 remains in the affirmative against the view of the learned counsel. I am of the view that the respondent’s issue 03 is inconsistent with the Grounds of Appeal.
The position of the law is that every issue formulated for determination of an appeal placed before the Appellate Court must flow from the grounds of appeal. The issue should project clearly the substance of the complaint contained in the grounds of appeal. A close look at the notice and grounds of appeal in this case will leave one in no doubt that the issue 03 formulated by the respondent in this appeal does not flow from the appellants grounds of appeal. It is consequently incompetent and therefore should be struck out.
In conclusion, having examined the whole issues and the authorities, I found merit in this appeal. The appeal succeeds and it is hereby allowed. The judgment of the High Court of Justice Anambra State sitting at Onitsha Judicial Division delivered on 28/2/2006 by Hon. Justice J. I. Nweze is hereby set aside. The expunging of exhibit P.I was wrong in law as it was relevant to the proceedings in question. It therefore occasioned miscarriage of justice. Accordingly it is ordered that the suit be remitted to the Chief Judge of Anambra State for reassignment to another judge for admission and proper interpretation of paragraph “g” of Exhibit P1.
Cost of N50,000 against the Respondent in favour of the Appellant.
ADZIRA GANA MSHELIA, J.C.A.: I have read the draft of the judgment of my learned brother Abubakar Jega Abdul-Kadir, JCA. I agree completely with his reasoning and conclusion. I have nothing more to add while I abide by all the orders made therein the lead judgment.
IGNATIUS I. AGUBE, J.C.A.: I was opportune to have read the draft of the lead Judgment just delivered by my Lord the Honourable A. J. Abdul-kadir, P.J. and am totally in agreement with his view that the learned trial Judge shut his eyes to the obvious by expunging Exhibit P1 which was the hub of the Appellant’s case and consequently arrived at a decision which he ought not to have done if the said Exhibit were to be admitted particularly where paragraph ‘g’ thereof spelt out the express terms of the Lease Agreement between the parties which would have tilted the balance of justice in favour of the Appellant.
I therefore agree that there was substantial miscarriage of justice occasioned by the learned trial Judge which would warrant the setting aside of his Ruling and I so hold. I also order that the Suit be remitted to the Honourable, the Chief Judge for reassignment to another Judge for the hearing and determination thereof de novo.
I abide by the order as to costs.
Appearances
Mr. E. O. UgwokeFor Appellant
AND
Mr. A. OkeyFor Respondent
