OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR (2014)

OMAC OILS NIGERIA LIMITED & ORS v. ELDER SAMSON OLUSHOLA EGBADEYI & ANOR

(2014)LCN/7624(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of December, 2014

CA/L/735M/2009

RATIO

EVIDENCE: CONTRADICTORY EVIDENCE; WHEN IS A PIECE OF EVIDENCE SAID TO BE CONTRADICTORY

A contradiction is defined thus:
“The word contradiction comes from two latin words – Contra, which means opposite, and dicere, which means to say so, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms otherwise and not necessarily when there are some minor discrepancies in, say details between them.” See the case of OGOALA v. STATE (1991) 3 SCNJ 61 and AYO GABRIEL V THE STATE (1989) 12 S.C.N.J 33 at 42. per. YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: CALLING WITNESSES; WHETHER A PARTY IS UNDER AN OBLIGATION TO CALL A PARTICULAR NUMBER OF WITNESSES

A party is not under an obligation to call a particular number of witnesses as long as he proves his case by evidence. In this case the Respondents were not bound to call any particular witness, if their evidence can prove their claim, see the case of AGBI v. OGBEH (2006) 11 NWLR (pt 990) 65 where the Supreme Court held as follows:
“However, the general rule is that no particular number of witnesses is required for proof of any fact unless expressly prescribed by law. It follows therefore that in court cases, a plaintiff can establish his case on the evidence of a single witness without a confirmation by the testimony of another person.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

LAND LAW: EQUITABLE TITLE; WHAT CONFERS EQUITABLE TITLE
Legal principles acknowledge equitable titles in land. The Supreme Court in the case of ADESANYA v OTUEWU (1993) 1 NWLR (Pt 270) 414 held thus:
“It is well settled law that the payment of purchase price coupled with being put in possession confers an equitable title enabling a purchaser in possession to call for a document of title. The title so acquired is capable of defeating subsequent purchasers.”
It is also settled now that the payment of purchase price coupled with being put in possession confers equitable title which enables a purchaser in possession to call for a document of title. By Exhibit P1 and P9 the Respondents acquired an equitable title. per. YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: DOCUMENT MADE IN ANTICIPATION OF PROCEEDINGS; THE ADMISSIBILITY OF DOCUMENTS MADE IN ANTICIPATION OF PROCEEDINGS AND THE CONDITIONS A PARTY OPPOSING MUST ESTABLISH

A document made in anticipation of proceedings is covered by Section 91(3) of the Evidence Act and it provides thus:
S. 91(3) of the Evidence Act:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending of anticipated involving a dispute as to any fact which the statement might tend to establish”
See SOLAR ENERGY ADVANCED POWER SYSTEM LTD V MR. ALBERT OLUWATOYIN OGUNNAIKE & ANOR (2008) LPELR – 8470 (CA). See ARE V IPAYE (1986) 3 NWLR (PT 29) 416. Therefore the two main conditions stipulated under Section 91(3) is that for a statement to be rendered inadmissible under this section it must be made by a person interested” and when proceedings are pending or anticipated” involving a dispute as to any fact which the statement might tend to establish.
The provision bars the admissibility of documents caught by the two conditions given in the provision. A party opposing must establish the two conditions. The two conditions must go together and these are:
(a) A person interested.
(b) When proceedings were pending or anticipated. per. YARGATA BYENCHIT NIMPAR, J.C.A.

A person interested was considered in the case of N.S.I.T.F.M.B v KLIFCO NIG LTD (2010) 13 NWLR (Pt 1211) 307 where the Supreme Court held as follows:
“As regards the phrase “a person interested” I agree with the Respondent that the phrase has been examined in the case of EVAN V NOBLE (1949) IKB 222 at 225 where a person not interested in the outcome of an action has been described as “a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent.” In other words, it contemplates that the person must be detached, independent and non – partisan and really not interested which way in the contest the case goes.
Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 91 (3). I think the phrase “a person interested” even moreso has been quite definitely put in the case of HOLTON v HOLTON (1946) 2 AER 534 at 535 to mean “a person who has a peculiarly or other material interest in the result of the proceedings” – a person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense which imports something to be gained or lost.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

APPEAL: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE DUTY OF EVALUATION OF EVIDENCE AND WEIGHT ASCRIBED TO IT BY THE TRIAL COURT WHERE THE FINDINGS OF THE TRIAL COURT IS NOT PERVERSE

This issue challenges evaluation of evidence and weight ascribed to it by the trial court. From record of appeal, the valid evidence (documentary and oral) were properly considered by the trial Judge who has a duty to evaluate facts. An appellate court would not interfere with findings of facts that are supported by evidence before it. This duty was done by the trial Judge, the conclusion cannot be faulted and therefore cannot be interfered with, see the case of BUNGE V GOV. RIVERS STATE & ORS (2000) 12 NWLR (Pt 995) 573 where the Supreme Court held that:
“Generally speaking, an appellate court does not interfere with the findings of fact made by a trial court. In LAWAL V DAUDU (1972) 8 – 9 SC 83 at 114 – 115, this court per COKER JSC observed: in the evaluation of evidence we think it firmly established in our jurisprudence that a Court of Appeal ought not, except in exceptional circumstances, to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a Judge who saw and heard the witnesses give evidence. The ascription of probative values to evidence comes at a late stage of the whole process and it is also established that this is a matter for the Judge who saw and heard these witnesses give evidence.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1. OMAC OILS NIG LIMITED
2. ALHAJI AMINU OGUNRINDE
3. RISIKAT AKINDELE
4. TOYIN OKOOSI Appellant(s)

AND

1. ELDER SAMSON OLUSHOLA EGBADEYI
2. SONEG OILS LIMITED Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The appellants were defendants before the trial court in the suit commenced by the Respondents before the Lagos State High Court presided over by HON. JUSTICE ADEFOPE – OKOJIE (as he then was) wherein the court granted the reliefs sought by the Respondents and dismissed the counterclaim in a judgment delivered on the 30th April, 2009.

Aggrieved with the judgment the Appellants filed a Notice of Appeal on 6 grounds of appeal.

The brief facts of the appeal are that the Respondent instituted a suit against the appellants seeking the following reliefs:

(a) “A declaration that the Plaintiffs are entitled to statutory rights of occupancy of the parcel of land situated at Onilekere Street, Agege, Agege Local Government Area Lagos State covered by WAT/LA/159/92 dated the 14th day of August, 1992 drawn by W. T. ADENIJI, a licensed surveyor.
(b) An order of perpetual injunction restraining the defendants whether by themselves, their privies, servants, agents or whosoever acting for the defendants from committing further acts of trespass on the said land described above.
(c) N500, 000.00 (Five Hundred Thousand Naira Only) Damages against the defendants.

The appellants by their statement of defence added a counterclaim against the Respondents in the following terms:

(a) A Declaration that the leasehold in respect of the property lying being and situate at No. 1 Onilekere Street, Cement Bus Stop, Ikeja, Lagos State granted to the 2nd counterclaimant by the 3rd & 4th counterclaimant family for a period of 20 years is valid and subsisting.
(b) A Declaration that the 1st & 3rd counterclaimants are entitled to the quiet and peaceful enjoyment of their leasehold till the year 2019 in respect of No. 1, Onilekere Street, Cement Bus – Stop, Ikeja, Lagos State.
(c) A Declaration that the 3rd & 4th counterclaimants family are the persons entitled to the reversionary interest over the land in dispute from year 2019 in respect of the property lying, being and situate at No. 1, Onilekere Street, Cement Bus – Stop, Ikeja, Lagos State.
(d) A Declaration that the purported sale of the Momodu Moshesha family land lying, being and situate at No, 1, Onilekere Street, Cement Bus – Stop, Ikeja, Lagos State is null and void and of no effect whatsoever.
(e) An order of perpetual injunction restraining the plaintiffs, their servants, agents and parties from further trespass on the 4th and 5th counterclaimants family land and/or disturbing the quiet and peaceful enjoyment of the 1st and 2nd counterclaimants leasehold.

The Appellants brief dated 2nd December, 2010, filed on 3rd of December, 2010 was adopted on 17/11/14 while the Respondents brief dated 30th March, 2011 filed on same date also adopted on the 17/11/14. The Appellants reply brief dated 30th March, 2011 filed on 1/11/11 was adopted on 17/14/14. The Appellant formulated 5 issues for determination thus:

1. Whether the discrepancy in the two receipts, Exhibits P1 and P7 both having the same number and date and claimed to have been issued at different times are not sufficient evidence of fraud.
2. Whether in the absence of any clear evidence as to who was the head of Moshesha family when the Deed of Lease was granted and/or executed by all the members of Moshesha family to the 2nd Appellant, the Deed of Lease can be regarded as void.
3. Whether by virtue of Exhibits P1 and P9 above, the lower court could safely and reasonable confer title to the land in dispute on the Respondent without propping up their claim to title by other evidence recognised by law.
4. Whether Exhibit P9 is not a document made in anticipation of this suit contrary to Section 91 (3) of the Evidence Act so much so that the placing of reliance on it has not occasioned a miscarriage of justice.
5. Whether the judgment of the lower court found valuable support from the available evidence on record.

The Respondents adopted the issues formulated by the Appellant. Both parties proffered arguments in support of the issues for determination in their briefs to urge the court to find for them as argued. The court shall adopt the issues formulated by the Appellants.

The Appellants in arguing issue one submitted that the Respondent upon filing his originating processes filed a motion seeking for injunction and attached a receipt (page 12 of the Record of Appeal) meant to be a purchase receipt later admitted as Exhibit P7 and also during trial another receipt was tendered as evidencing purchase of the land admitted as Exhibit P1, appellants submitted that both Exhibit P1 and P7 had the same details in these terms:

(a) Date 5th day of August, 1977
(b) Receipt No. 0000191
(c) Signed on the same day
(d) Having same character

Appellant contended that it is evidence of fraud even in the face of an explanation that Exhibit P1 was rejected by PW1 because it was not signed by the Head of the family before Exhibit P1 was issued to replace it. The evidence of PW1 was reviewed to highlight what the appellant considered as contradiction. They contended that the trial Judge should not have picked one over the other because the two documents were contradictory.

Also highlighted was the evidence that one Tajudeen Anjorin was head of family which the Respondents later changed to say it was one Madam Sabalemotu Moshesha that was family head when he bought the land while Chief Anjorin was the secretary of the family.

Appellants contended that contradiction when material can damage the case of a party and such must touch on facts founding the basis of the party’s case, relied on THOMAS FATOBA V JULIUS OGUNDAHUNSI & 4 ORS (2003) 14 NWLR (Pt 840) 323 at 34 to submit that the main plank of Respondents case is the fact of who was the family head and how many receipts he was issued. Appellants that the contradictions touching on them are material.

Appellants submitted that the trial Judge erred by relying on Exhibit P1, and accepting the explanation that PW1 offered on Exhibit P7. They relied on FIRST AFRICAN TRUST BANK LTD V PARTNERSHIP INVESTMENT CO. LTD (2001) 1 NWLR Pt 695 517 at 532, to submit that relying on Exhibit P1 occasioned a miscarriage of justice and urged the court to find for appellants under this issue.

The Respondent on this issue submitted that 1st Respondent tendered only Exhibit P1 as evidence of purchase. That it was the appellants who tendered Exhibit P7 under cross-examination and alleged that it amounts to fraud, therefore the burden is on them to prove same.

Respondent relied on GARBA V ZARIA (2005) 17 NWLR 55; NTEOGWUILE V OTUO (2001) 6 S.C. 200 at 217 and ALALADE V MOROHUNDIYA (2002) 16 NWLR Pt 792 81 at 102 – 103.

Respondents argued that the 1st Respondent proffered an explanation which the trial Judge accepted more so no fraud was pleaded nor proved. That the appellant cannot raise it at this stage when the matter is on appeal.

Arguing further, Respondents submitted that the appellants did not call anybody from the Momodu Moshesha family to rebut what 1st Respondent told the court and therefore the case of the Respondent was unchallenged. Furthermore, Respondents submitted that an appellate court will not interfere with findings of fact by a trial court based on pleadings and evidence, citing ROTIMI v. FAFORFITI (1999) 6 NWLR Pt 600 305 and Section 149 of the Evidence Act.

Appellants in reply to issue one on the assertation that Respondents discharged the onus of proof submitted on the issue of fraud that the burden is on he who asserts and the evidence of Respondents was not good enough. They contended that Exhibit P1 was impugned and therefore the Respondents should have called a member of the family of Moshesha to confirm the exhibit relying on G. GHITEX INDUSTRIES LTD v. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) ALL FWLR pt 276 610 at 624. That failure to call Tajudeen Anjorin defeated Exhibit P1 and no weight should be attached to it.

On the call to interfere with the findings of the trial court, appellants argued that by virtue of FIRST BANK OF NIGERIA PLC V EXCEL PLASTIC INDUSTRIES LTD (2003) FWLR pt 160 1624 at 1630 the court can interfere by appraising the evidence on documentary evidence.

RESOLUTION:

Exhibit P1 is the receipt pleaded and tendered by the 1st Respondent as evidence of purchase of the land from the family of Moshashe which was signed by the Head of the family Sabalemotu Ajike and Tajudeen Anjorin Secretary to the family. Exhibit P7 was tendered during cross-examination, it has the same particulars except that it was signed by only one person, Tajudeen Anjorin and not head of family. The 1st Respondent in his testimony explained that he rejected Exhibit P7 because it was not signed by both head and secretary of the family and as a result it was replaced by Exhibit P1. The challenge here is the existence of both which appellant said amounts to fraud which is a criminal act. The nature of fraud attracted judicial pronouncement in the case of OJIBAH V OJIBAH (1991) 5 NWLR (Pt 191) 296 where the Supreme Court as per NNAEMEKA AGWU, J. S. C said:
“In my view fraud caries for much wider implications than impugning the truth or correctness of a document. At common law, its foundation is deceit of which the intention to mislead and a false representation are material. In equity it is, in sum infraction of fair dealing and its consequences upon the person aggrieved are of paramount importance.”
The Supreme Court further held that fraud must be distinctly alleged, with all the necessary particulars pleaded and distinctly proved. There are no specific pleadings and particulars of fraud in this case to warrant calling on the Respondents to defend the allegation, Fraud cannot therefore be raised by the appellants without pleadings. Furthermore, the 1st Respondent explained the circumstances of making Exhibit P1 and P7 and the trial Judge accepted the explanation. The 1st Respondent told the trial court the following:

“The receipt of purchase Exhibit P7 was rejected by me because it was signed by the secretary to the family. They then issued me Exhibit P1 which was jointly signed by the Head of the family. Sabalemotu Moshesha and Tajudeen Anjorin. These 2 documents are with me.” (See page 251 of the Record of Appeal.)

There is no fraud alleged and none can be found. Furthermore, Exhibit P1 and P7 are not the same because one has two signatures while the other has only one.

The other aspect of the challenge is that Exhibit P1 and P7 are contradictory. A contradiction is defined thus:
“The word contradiction comes from two latin words – Contra, which means opposite, and dicere, which means to say so, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms otherwise and not necessarily when there are some minor discrepancies in, say details between them.” See the case of OGOALA v. STATE (1991) 3 SCNJ 61 and AYO GABRIEL V THE STATE (1989) 12 S.C.N.J 33 at 42.

Before contradiction can have effect it must be material. The mere fact that Exhibit P1 and P7 have differences does not mean they are contradictory and in any case, explanation on how it came about was accepted by the trial court and Exhibit P1 was what 1st Respondent tendered as evidence of purchase not Exhibit P7 which was tendered with the aim to contradict PW1. The case of the Respondents on evidence of purchase is not contradictory. He did not make either Exhibit P1 or P7. It is also wrong of the appellant to twist facts by saying PW1 told the court that Tajudeen Anjorin was the head of family at time of transaction. He was very emphatic that Sabalemotu was head of family and DW2 confirmed it in his testimony.

The evaluation by the trial Judge on Exhibit P1 and P7 is unassailable. The complaint of the appellants is unmeritorious and the issue is resolved against the appellants and in favour of the Respondents.

ISSUE TWO:

The appellant on issue two submitted that the reliefs of the Respondents at the trial court had nothing to do with the Deed of lease in favour of the 1st & 2nd appellants (Exhibit 4) and that issues were not joined on who the head of the family was, that the Respondent alleged that the Deed was forged and the trial Judge voided the lease (Exhibit D4) at page 643. The reason was because it was executed by persons who were not head of family of the Moshesha. Appellants questioned how the court arrived at that since the issue of who was the family head at that time was not in issue. They contended that the finding is perverse and gratuitous. They urged the court to resolve the issue in favour of the appellants.

The Respondents on the same issue submitted that the trial Judge was right to find that the alienation of family land by those who are not head of family and principal members of the family was void. They argued that the burden of proving due execution of Exhibit D4 was on the appellant and relied on USIOBAIFO V USIOBAIFO (2005) 3 NWLR (Pt 913) 665; EJILEMELE v OPARA (2003) 9 NWLR Pt 826 330 and UCHE v EKE (1992) 2 NWLR pt 224 where the court held that sale or lease of family land by head of family without the consent of principal members is voidable and sale or lease of family land without the head of family and principal members is void ab initio. They argued that Exhibit D4 was not signed by head nor principal members of the Momodu Moshesha family and therefore void ab initio.

The Respondents observed that DW4 gave evidence without stating who the head of the family was at the time the lease was executed (page 460 of the record). Furthermore, that DW5 the lessee admitted that the family head was a woman resident in Ibadan, but did not call her name or explained why she did not sign the lease if it was with her consent. Respondent questioned why DW5 could not name the head of family to whom he delivered N3 Million Naira.

Respondents submitted that the trial Judge was right and relied on OMONIYIFAYEHUN & ORS V FADOJU & ORS 4 S. C 48 (incomplete citation) to say Exhibit D4 was a registrable instrument which had not been registered and it tells a lie about itself because while appellants claimed the lease was for 20 years (page 214 of the record) from 1998 – 2018 while Exhibit D4 said the period was from January 1999 to 31st December, 2008. They urged the court to find for the Respondents.

In reply the Appellants contended that voiding Exhibit D4 was beyond the trial Judge as there was no issue on the due execution of Exhibit D4 in the pleadings. They cited the case of EMHINYAN (1985) 2 NWLR Pt 177 183 and DR. L. I. OSADEBEY V LETICIA IKEJIOFOR & ORS (2001) FWLR pt 62 1976 at 1984 to submit that the trial Judge evolved a new case for the parties. They relied on NATIONAL ELECTRICITY POWER AUTHORITY V MATHEW ABA (2001) FWLR Pt 38 1240 at 1250.

On Exhibit D4 telling a lie about itself, appellants contended that the Respondents did not plead that Exhibit D4 told a lie against itself and that in any case, the issue is of no help to the Respondents case because the contradiction is not material and therefore should not have weighed on the mind of the court, they relied on OLADELE OGUNSAKIN & ANOR V ROTIMI SAMUEL AJIDARA & 3 ORS (2010) ALL FWLR Pt 507 109 at 132.

Under this issue, the appellants seek to know whether it was because no evidence was led on who the head of Moshesha family was at the time the deed of lease to the 1st & 2nd appellants was executed that rendered the Deed of lease (Exhibit D4) void. The appellants approached the issue of Exhibit D4 – the deed of lease from a wrong angle. Issues were joined on the pleadings on other matters and there was a counterclaim by the appellants. They therefore sought to prove title to the land in dispute. Exhibit D4 was not just to defend the claim of the Respondents but it was essentially tendered in proof of appellants claim to title and in a claim for declaration of title, the settled position is that a claimant must prove title by credible evidence and that cannot be done by admission or default of pleadings, it must be cogent evidence, see the case of BANKOLE V PELU (1991) 11 SCNJ 108, the Supreme Court therein held as follows:
“The normal onus of proof in a claim for a declaration of title is still applicable, to wit, that the onus is on the plaintiffs to prove their case and in so doing they must rely on the strength of their case and not on the weakness of the defendants, whose duty is only to defend the action and no more.”

The appellants were in the position of plaintiffs concerning the counterclaim. They must therefore prove title by credible evidence.

In establishing title over a piece of land acquired from a family, the position is crystallized now in that there are situations where transactions can be void or voidable. The trial Judge in the evaluation of evidence made a finding concerning the lease that there was no evidence of who the head of the family was at the time the deed was executed. The Judge found that though DW5 said there was head of family, he did not give the name though he said she was resident in Ibadan. The court found that there was no evidence that the head of family also executed the deed of lease or why she did not sign it. Being family land, who then acted as head at the time of lease of the land to the 1st & 2nd Appellants? DW2 denied that Tajudeed Anjorin was family head even though PW1 said he was family head. At the end, it was clear that no family head signed the deed of lease. The trial court found that sale of family land without the head of family is void and relied on EJILEMETE V OPARA (2003) 9 NWLR (Pt 826) 536 where the Supreme Court held that sale of family land without head of family and principal members is absolutely void ab initio. The conclusion of the matter here is that the deed of lease not executed by head of family is therefore void ab initio. Family land cannot be sold without head of family. If it is void can it support any claim for declaration of title? The obvious answer is NO. The lease is void and the trial court was right in arriving at that conclusion. The contention that Respondents did not plead that the lease was void is a non starter because upon tendering the said document, the court and parties can critical analyse it to be sure it is credible evidence. The court evaluated it and found that it failed the test. The court was duty bound to give the document its value, which it did by voiding it. It is not a matter of pleading, after-all a party does not plead evidence but facts. This issue is resolved against the appellants.

ISSUE THREE:

The Appellants under issue three questioned whether the trial Judge was right to have granted title to the Respondents on the basis of Exhibit P1 and P9 alone. They submitted that methods of proving title were settled in IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227 and MOGAJI V CADBURY (NIG) LTD (1985) 2 NWLR Pt 7 at 393. They listed the methods and submitted that a claimant is expected to prove one of the 5 methods not all. That the Respondent relied on production of title documents which the court found in their favour. Appellants argued that Exhibit P1 was a purchase receipt and that cannot confer title, they relied on ALHAJA TOIBAT ADENIJI & ANOR V DR. OLU ONAGORUWA & ANOR (2000) 1 NWLR Pt 639 1 at 4.

Appellants challenged the failure of Respondents to call Tajudeen Anjorin to confirm the sale and that the failure created a big lacuna and doubt on the sale to the Respondent and cited Section 149 (1) of the Evidence Act to contend that failure of Tajudeen Anjorin to confirm Exhibit P1 was fatal because DW2 denied the sale. Appellants argued that the Respondent did not provide evidence of the cost of putting up the face allegedly broken by the appellants neither did the appointed Attorney – Gabriel Olomo and Mr. Ayanbisi testify. That the surveyor too did not testify. They submitted that failure to call vital witnesses destroyed the case of the Respondent and cited the authority of COLONEL DAVID GABRIEL AKONO V THE NIGERIAN ARMY (2000) 14 NWLR Pt 687 318 at 331 and MRS GRACE ODUSANYA V MR KOLADE OSINOWO (2000) in support.

On Exhibit P9 which is a deed of confirmation, Sale and Ratification dated 18th day of January, 2001 and that the test in proof of title by documents as reiterated in the case of PRINCE NGENE V CHIKE IGBO & ANOR (2000) 4 NWLR Pt 651 146 – 147, appellants contended the trial court should have inquired into the efficacy of the document tendered as Exhibit P9. That in the face of a strong challenge by the counterclaim and evidence of DW2, failure to call vital witnesses, the claim should have been dismissed. They relied on the case of A. G. KWARA STATE & ANOR V CHIEF JOSHUA ALAO & ANOTHER (2000) 9 NWLR Pt 671 84 at 101 to submit that there is doubt on the executors of Exhibit P9 and the 4 branches of the family. That it was not shown that all were represented in the signing of Exhibit P9. Furthermore, that no evidence of who the head of the family was in 2001 when Exhibit P9 was signed.

Appellants argued that Tejudeen Anjorin was an ex-convict as per the evidence of DW2 and Exhibit D14 (record of proceedings) in page 457 – 458 of the record and he could not therefore have been head of a family.
That the said Tajudeen had signed so many other documents which are opposite of one another and therefore Exhibit P9 is not of help to the Respondent and the trial Judge should have found so. They urged the court to find for the appellants.

The Respondents in arguing this issue agreed with the settled methods of proving title and that a claimant is expected to prove just one of the 5 methods. They relied on IDUNDUN V OKUMAGBA (SUPRA) AIGBOBAH v AIFUWA (2006) 6 NWLR Pt 976 270 at 275; OGUNYOMBO v OKOYA (2002) 16 NWLR Pt 224 and IROGO v UKA (2002) 14 NWLR Pt 195.

The Respondents contended that the pleading was clear on the purchase, who signed the receipt, who put them into possession, the survey conducted and their long possession. They submitted that having been in possession for 30 years shows that the Respondents had equitable title to qualify them for a declaration of title sufficient to defeat the counterclaim of the appellants. They relied on AMINU V OGUNYEBI & ANOR (2004) 10 NWLR Pt 882 457 at 480.

Furthermore, that a party is not bound to call a host of witnesses if he can prove his case by the evidence presented, citing NDIDI V THE STATE (2005) 17 NWLR Pt 953 17. On Section 149(d), the appellant submitted that it is on withholding evidence not failure to call a witness and relied on LAMBE V JOLAYEMI (2002) 13 NWLR Pt 784 343.

Respondents contended that having shown that Exhibit P1 was issued by the family of Momodu and Tajudeen Anjorin, the burden shifted to the appellants to show otherwise and they failed to do so, citing AKERELE KAYODE OYEWOLE V GBENGA OYEKOLA (1997) 7 NWLR Pt 612 560 and OKORONKWO v CHUKWUEKE (1992) 1 NWLR Pt 216 & 179. They urged the court to find for the Respondent under this issue.

The appellants in reply submitted that it is the duty of a party relying on a contested document to prove its authenticity as captured in the case of OLADELE OGUNSAKIN & ANOR V ROTIMI SAMUEL AJIDARA & 3 OTHERS SUPRA. That Tajudeen Anjorin should have been called to prove Exhibit P1 tendered by the Respondent and not the appellants.

The appellants challenged the order of declaration of title to Respondents on the basis of Exhibit P1 and P9, (receipt of purchase and the Deed of Ratification) without other evidence.

Proof in a claim for title is settled on 5 methods as listed in the case of IDUNDUN V OKUMAGBA SUPRA and in a long time of cases. A claimant is expected to prove only one method by credible evidence. The method adopted by the Respondents is production of title documents. The Respondent tendered receipt of purchase Exhibit P1, Deed of Confirmation, Sale and Ratification – Exhibit P9, Survey Plans – Exhibit P2 and P3 in proof, along acts of possession and the fence constructed round the land in dispute.
The trial court found that Exhibit P9 – Deed of Ratification of Sale to the Respondents along Exhibit P1 – Receipt from Moshesha family have given the Respondents equitable title which is first in time and superior to the claim of the appellants. The trial court held that Exhibit P9 is a registrable instrument though not registered has given the Respondents equitable title which is as good as legal estate.
The question is what other better evidence have the appellants presented that can sway the pendulum to their side of the scale? Legal principles acknowledge equitable titles in land. The Supreme Court in the case of ADESANYA v OTUEWU (1993) 1 NWLR (Pt 270) 414 held thus:
“It is well settled law that the payment of purchase price coupled with being put in possession confers an equitable title enabling a purchaser in possession to call for a document of title. The title so acquired is capable of defeating subsequent purchasers.”
It is also settled now that the payment of purchase price coupled with being put in possession confers equitable title which enables a purchaser in possession to call for a document of title. By Exhibit P1 and P9 the Respondents acquired an equitable title.
The trial Judge did not say that the Respondents Exhibit P9 is a registered title that can now be put through the test stipulated in the case of PRINCE NGERIE v CHIKE IGBO & ANOR (2000) 4 NWLR (Pt 651) at 145 – 147.
The Respondents proved equitable title to the land which is stronger than the case of the appellants and the trial court was right to have declared title to the Respondents. The Respondents had payment receipt, possession and the deed of ratification which is registrable. The evaluation of evidence and finding by the trial Judge is correct. This issue is resolved against the appellants.

ISSUE FOUR:

The appellants under issue four contends that Exhibit P9 is a document made in anticipation of litigation contrary to Section 91(3) of the Evidence Act and therefore relying on it occasioned a miscarriage of justice. They argued that the admission of Exhibit P9 is enough ground to reverse the judgment of the trial court and referred to page 643 of the record of appeal. Appellants submitted that their objection to the admissibility of Exhibit P9 for offending Section 91(3) of the Evidence Act was over ruled. On what to satisfy for Section 91(3) of the Evidence Act to operate, they relied on EVONS V NOBLE (1949) 1KB 222 and ANYAEBOSI v. R. T. BRISCOE (NIG) LTD which interpreted a person interested. Appellants argued that Exhibit P9 was executed by Tajudeen Anjorin who is a person interested in the proceedings and also signed by PW1 (1st Respondent) another person interested in the proceedings.

On the second leg of Section 91 (3) appellants submitted that Exhibit P9 was executed on the 18th day of January, 2001 while the suit was initiated on 7th May, 2002 when the suit was anticipated and meant to ratify the earlier purchase made in 1977. The appellant conceded that it is not easy to determine anticipated proceedings and it is a question to be determined from the set of facts but one important factor is the proximity between the document and the commencement of proceedings, they relied on NIGERIAN TELECOMMUNICATION PLC V ROCKONOH PROPERTY CO. LTD & ANOR (1995) 2 NWLR (Pt 378) 473. They urged this court to find that Exhibit P9 was made in anticipation of proceedings.

The Respondents submitted that Exhibit P9 is not caught by Section 91 (3) of the Evidence Act and therefore no miscarriage of justice was occasioned by its admissibility in evidence. They argued that anybody disputing the execution of Exhibit P9 should have called Tajudeen Anjorin to come and dispute or deny his signature. That failure to do so leaves the said Exhibit P9 standing and the trial Judge was right to have arrived at the findings, they relied on LAMIBE V JOLAYEMI (2002) 13 NWLR Pt 784 343 to urge the court to find for the Respondents under this issue.

RESOLUTION:

Exhibit P9 was executed by one Tajudeen Anjorin, whom the appellants contends is a person interested and PW1, (the 1st Respondent). I can see the interest of 1st Respondent but cannot for Tajudeen Anjorin who incidentally testified for the appellants because the interest contemplated here is beneficial to the maker of the document. I disagree that Tajudeen Anjorin is a person interested in the suit. In any case, he signed along another so Exhibit P9 is not made by a person but persons. Would somebody sign a document in favour of another that would prejudice him in court? If the document was made in anticipation of a proceedings, then Tajudeen Anjorin cannot be a person interested. He could not have aided the Respondents to the detriment of his interest and turn round to fight the Respondents the following year. Like observed above, the provision says “a person” and Tajudeen Anjorin and the 1st Respondent do not fit into “a person.”

The second angle is when proceedings are anticipated. The legal provision talks of proceedings pending or anticipated. Proceedings pending are easier to identify but anticipated is not that definite. In my view, anticipated is where there is evidence of taking such a step that would ordinarily end up with the filing of a suit, where there are definite steps towards initiating a legal process, that could mean anticipated proceedings but it all depends on the facts of the case. Exhibit P9 was made in 2001 while this suit was filed on 2002, there is no evidence to show that it was made in anticipation of proceedings. To say that 15 months between the execution of Exhibit P9 and the time of filing the action is proximate enough would amount to speculation and courts do not assume but act on established facts. There is no evidence of such. The facts of this appeal do not qualify to come under Section 91(3) of the Evidence Act and consequently, this issue is resolved against the appellants.

ISSUE FIVE:

The appellants under issue five challenged the judgment of the trial court on the ground that it is not supported by evidence. The Appellant submitted that the trial court did not consider their evidence nor exhibits tendered. They referred to Exhibits D21 – D24 which are processes before the court in Suit No. ID/822/2002 wherein the relief is that the leasehold tendered. They referred to Exhibits D21 – D24 which are processes before the court in Suit No. ID/822/2002 wherein the relief is that the leasehold be terminated for breach of covenants. The Plaintiffs are 4 members of the Momodu Moshesha family. Furthermore, that Tajudeen Anjorin in Suit No. ID/822/2002 claimed to be a principal member of Moshesha family while the Respondents presented him as head of the family in Exhibit P9 executed in January 2001. The appellants contended that the affidavit of Tajudeen Anjorin in Suit No: ID/922/2002 supports the case of the appellants.

Arguing further, appellants referred to the evidence DW2 (page 455 of the record of appeal) and Exhibit D71 – D711 issued to artisans for over 18 years. That the 1st & 2nd appellants encountered problems in taking possession upon the lease agreement. They contended that the evidence of the Respondents was a tissue of lies.

Arguing further, the appellants contended that Exhibit D11 was ignored by the trial judge. It is minutes of meeting of elders of Onilekere with Tajudeen Anjorin in attendance and was referred to as tenant and made to pay a certain amount. The minutes was signed by the same Chief Tajudeen Anjorin who complied and paid the fee, receipt admitted as Exhibit D12.

That upon subsequent default Tajudeen Anjorin was taken before the Magistrate Court in Suit No: MK/2061/88 and ordered to vacate No. 1 Onilekere Street, Agege in Exhibit D13. The appellants contended that these evidence were not contradicted, that Exhibit D4 was confirmed by Exhibit D2 and reversionary interest rest with the Moshesha family. They urged that the voiding of Exhibit 4 by the trial Judge should be upturned.
They relied on the case of DIBIAMAKA V OSAKWE (1989) 1 NWLR (pt 96) 182 at 208 – 209 on how a court should evaluate evidence.
They urged the court to evaluate evidence and find for the appellants on the authority of KAYDEE VENTURES LTD V THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY & 2 ORS (2010) VOL. 1 – 2 MJSC 129 at 162.

They finally urged the court to allow the appeal.
The Respondents on their part submitted that the judgment of the trial court is not against evidence, they referred to DIBIAMAKA V. OSAKWE SUPRA to agree that the trial Judge considered Exhibits D71 – D711, D8i – D8iv, D91 – D99, D12, D13 and gave them due value.
Furthermore that Exhibit D21 – D24 were terminated by Exhibit P10 and since Exhibit P10 was not denied, appellants cannot complain against Exhibit P10 at this stage. The Respondent agreed with the evaluation of evidence by the trial Judge at page 626 – 644 of the records of appeal.
They relied on KWASALBA (NIG) LTD v BOSAH OKONKWO (1992) 1 NWLR pt 218 409 on how a trial court should evaluate evidence. They argued that the trial Judge did exactly as required. They urged the court to dismiss the appeal.

RESOLUTION

The judgment of the trial court at pages 639-644 evaluated evidence before the court and ascribed value. There is no need for reevaluation as called for by the appellants. Furthermore, Exhibit P1 and P9 gave equitable title, and Exhibit D4 too, if it were valid would give equitable interest. Therefore when equities are the same and competing the first in time prevails. In whichever way the evidence before the court is considered, the Respondents had a better case. See the case of OMILAYE V MACAULAY (2009) NSCQR VOL. 37 883. The unproved possession through artisans cannot give the appellants possession because that was outright trespass. The family of Moshesha having been divested of interest in the land when they sold to the Respondents in 1977 had nothing left to lease to the 1st – 2nd Appellants. They failed to prove their case and defence to the main claim was weak. I shall not disturb the findings of the trial Judge.

This issue is also resolved against the appellant.
Finally therefore, this appeal lacks merit and is hereby is dismissed.
The judgment of HON. JUSTICE ADEPOFE OKOJIE (as he then was) delivered on the 30th April, 2009 is hereby affirmed.
Cost of N50, 000.00 to the Respondents.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Yargata Byenchit Nimpar, J.C.A., availed me the honour of reading in draft the Judgment prepared by His Lordship with which I agree in toto and adopt as my Judgment with nothing extra to add.

TIJJANI ABUBAKAR, J.C.A.: I had a preview of the lead judgment rendered by my learned Brother NIMPAR JCA.

Disqualifying interest within the contemplation of Section 91 (3) of the Evidence Act is the type of interest that has the tendency of tempting the maker of the document to depart from truth. Where a person is found to be detached, impartial and independent he certainly cannot be an interested party.

I admire the analysis of “contemplation of legal proceedings” made by my learned brother NIMPAR JCA it is apt, precise and to the point, the entire reasoning and conclusion cannot be faulted. I adopt the entire judgment as my own, and abide by all consequential orders including one on costs.

Appearances

A. U. ADEBAYO ESQFor Appellant

AND

IBUKUNOLUWA OREMODU ESQFor Respondent