QUADRI v. BALOGUN & ANOR (2020)

QUADRI v. BALOGUN & ANOR

(2020)LCN/15396(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, October 09, 2020

CA/IB/69/2014

RATIO

EVIDENCE; WHETHER A PURCHASE RECEIPT MAY BE ADMITTED AS EVIDENCE OF AN AGREEMENT FOR SALE OF LAND

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ALHAJI KOREDE QUADRI APPELANT(S)

And

MUFUTAU BALOGUN 2. ABDULRASHEED ABIODUN MAYALEKE RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Ogun State High Court of Justice sitting in Ijebu-Ode, delivered by S. E. Akinbiyi, J., on the 27th day of November, 2013 in Suit No: HCT/38/2019.

By an Amended Writ of Summons and Amended Statement of Claim both dated and filed on the 4/3/2013, the Appellant who was the Claimant sought the following reliefs:
(i) A declaration that by the terms of the Temporary Purchase Receipt and Agreement dated the 12th day of July, 2010 duly executed by both parties in respect of all that piece or parcel of land situate, lying and being at Deji Oshibogun Street, G.R.A, Ijebu-Ode, Ogun State, and also known as Plot 9 in Block XXIII in Plan No. IJ35(OG) dated 30th June, 1980, the Claimant is the owner of the said land.
(ii) Possession of the said land.
(iii) An Order of Perpetual Injunction restraining the defendant, his servants and/or agents or privies from disturbing in any manner whatsoever the peaceable possession of the said land by the Claimant.

Issues were duly joined when the Defendants/Respondents filed their Joint Statement of Defence and Counter-Claim; and the suit went to trial. At the trial, the Claimant/Appellant tendered in evidence, a photocopy of a Certificate of Occupancy issued to the Claimant/Appellant by the 1st Defendant/Respondent, and a Temporary Purchase Receipt/Agreement. Learned Counsel for the Defendants/Respondents raised objection to the admissibility of those documents. The learned trial Judge gave the objection a considered ruling and rejected same in evidence. It is against that decision that the Claimant has appealed to this Court.

The Notice of Appeal consisting of three (3) Grounds of Appeal was dated and filed on the 10/12/2013. The parties then complied with the Rules of this Court by filing Briefs of Arguments. The Appellant’s Brief of Arguments settled by Chief A. F. Okunuga was filed on the 02/4/2014. Therein, three (3) issues were distilled for determination as follows:
1. Whether the lower Court was right to have rejected the admissibility of the photocopy of the Certificate of Occupancy handed over to the Appellant by the 1st Respondent in evidence. [Ground 1].
2. Whether the lower Court was right to have rejected the admissibility of the Temporary Purchase Receipt and Agreement in evidence on the ground that it is a registrable instrument which was not registered. [Ground 2].
3. Whether the lower Court was right in rejecting the admissibility of the Temporary Purchase Receipt and Agreement in evidence on the ground that it is pleaded as evidence of title to the land in dispute. [Ground 3].

The 1st Respondent did not file any Brief of Argument. Thus, by order of this Court made on the 08/7/2020, this appeal was set down for hearing on the Appellant’s and 2nd Respondent’s Brief of Arguments. The 2nd Respondent had filed his Brief of Arguments on the 29/4/2014. Therein, two (2) issues were also distilled for the determination of the Court as follows:
1. Whether the Court below was right to have rejected the photocopy of the Certificate of Occupancy sought to be tendered by the Appellant as being inadmissible in that form?. [Ground 1].
2. Whether the Court below was right to have rejected the Temporary Purchase Receipt and Agreement (a registrable instrument that was not registered) as being inadmissible in that form in the circumstances of the case? [Grounds 2 & 3].

A careful perusal of the issues will show that the Appellant’s issue one (1) is similar to the 2nd Respondent’s issue one (1) while issues 2 and 3 have subsumed the 2nd Respondent’s issue two (2). I shall therefore consider the issues in the order argued by the Appellant.

Now, in arguing issue one (1), learned counsel for the Appellant referred to the findings of the learned trial Judge in pages 96 – 97 of the Record of Appeal to contend that; though the learned trial Judge correctly stated the position of the law, he appears to be confused when he introduced another dimension into the matter by considering the reliefs sought in the substantive suit. That, a consideration of the reliefs will only arise at the judgment stage when all the issues canvassed at the trial will be considered. It was thus submitted that in dealing with admissibility of documents, three main criteria govern same as follows:
(a). Is the document pleaded?
(b). Is it relevant to the inquiry being tried by the Court; and
(c). Is it admissible in law?

The cases of Okonkwo Okonji & Ors v. George Njokanma & Ors (1999) 12 S.C. (pt.2) 150 at 156; Dunniya v. Jimoh (1994) 3 NWLR (pt.334) 609 at 617 and Oyediran v. Alebiosu & Ors (1992) 6 NWLR (pt.249) 550 at 559 were cited in support and to further submit that, the above criteria were satisfied in that the document was pleaded in paragraph 9 of the Amended Statement of Claim; it is relevant to the proceedings in question and it is admissible under the Evidence Act as primary evidence of what the 1st Respondent handed over to the Appellant. We were accordingly urged to hold that, the learned trial Judge erred when he came to the conclusion that the document is inadmissible in evidence.

In response, learned counsel for the 2nd Respondent relied on Section 102(a)(iii) of the Evidence Act, 2011 and the case of Okechukwu Uzoma v. Dr. Victor Asodike (2009) LPELR – 8421 (CA) to submit that a Certificate of Occupancy is a public document. Furthermore, that by virtue of Section 86(4) of the Evidence Act, 2011, photocopies of a common original are not primary evidence. That in the instant case, what the Appellant sought to tender is a photocopy of a Certificate of Occupancy and therefore secondary evidence.

Learned Counsel then submitted that, by Section 90(1)(c) of the Evidence Act, 2011, the learned trial Judge was right to have held that, the photocopy thereof is not admissible unless and until it has been certified. The case of Okechukwu Uzoma v. Dr. Victor Asodike (supra) was again cited in support.

It is not in doubt that the issue here has to do with the admissibility or otherwise of a photocopy of a Statutory Certificate of Occupancy. Generally, in law, the admissibility or otherwise of a document is governed by three main factors:
(i) whether the document is relevant to the issue in dispute.
(ii) whether it has been pleaded; and
(iii) whether the document is admissible in law.
The above stated factors must co-exist before the document can qualify as an admissible document in the proceedings. There is, however, no doubt the document subject of consideration here is relevant to the proceedings and has been pleaded in paragraphs 3, 4 and 8 of the Statement of Claim. The issue to be determined here is whether, the document is admissible in law. The instrument that guides admissibility of documents in Nigerian is the Evidence Act.

For the purpose of admissibility of documents under the Evidence Act, 2011, such documents are classified into two (2) categories, i.e public documents and private documents. Public documents are defined in Section 102(a) and (b) of the Evidence Act as follows:
102. The following documents are public documents-
(a) documents forming the official acts or records of the official acts of –
(i) the Sovereign authority,
(ii) official bodies and tribunals, or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private documents.
By Section 103 of the said Evidence Act; all documents other than public documents are private documents.
As stated earlier, the document under consideration is a Certificate of Occupancy issued in favour of Mufutau Olaitan Balogun (the 1st Respondent herein). It is not in doubt that a Certificate of Occupancy is an act of public body and therefore prima facie a public document by virtue of Section 102 (a)(ii) of the Evidence Act. Being public documents, either the original or primary aspect of such document; or a Certified True Copy of it can be tendered where the original has not been tendered. This is the requirement of Section 90(1) (c) of the Evidence Act, 2011.
To determine the issue, I am of the view that Section 89(e) and (f) of the Evidence Act are also relevant. This is because the document in issue is a photocopy and therefore not primary document within the meaning of Section 86 of the Evidence Act, 2011. Thus, Section 89(e) and (f) of the Evidence Act permits Certified True Copies of a public document to be admitted in evidence. Section 90(1)(c) then capped the point by stipulating that; “it is a Certified Copy of the document but no other secondary evidence, is admissible.” In other words, where the primary evidence of a public document is not given by virtue of Sections 86 and 88 of the Evidence Act only a Certified True Copy of such public document will be admissible as secondary evidence of that public document. See Lakanmi v. The Government of Oyo State & Ors (2013) LPELR – 19915 (CA); Dr. M.L. Yahuza & Ors V. Engr. Wilfred Agu & Ors (2017) LPELR – 44028 (CA) and Iteogu v. LPDC (2009) 17 NWLR (pt.1171) 614 at 634.

Having found as above, and in view of paragraphs 3 and 4 of the Statement of Claim, the photocopy of the Certificate of Occupancy tendered by the Appellant, not being the original or primary document, it needed to be Certified. Not having been certified, it is inadmissible in law. The learned trial Judge therefore, was right in rejecting same in evidence. This issue is therefore resolved against the Appellant.

I noted earlier on that the Appellant argued issues 2 and 3 together. Therein, learned counsel for the Appellant referred to paragraphs 6, 7 and 8 of the Statement of Claim, the Written Statements on Oaths of the Appellant and the findings of the learned trial Judge at pages 98 and 99 of the record of appeal to argue that the learned trial judge erred in reaching his conclusion with reference to the reliefs sought in the substantive suit. That, by the pleadings and Written Statement on Oath of the Appellant, the Temporary Receipt and Agreement is intended to show that there was a land transaction between the Appellant and the 1st Respondent in which the 1st Respondent acknowledged the receipt of the sum of Two Million Naira (N2m) from the Appellant. The cases of Lamide Fakoya v. St. Paul’s Church Sagamu (1966) 1 All N.L.R. 68; Gabriel Tewogbade v. Obadina (1994) 4 NWLR (pt. 338) 332 and Benedict Agwunedu & Ors v. Christopher Onwumere (1994) 1 SCNJ 106 were then cited to submit that the purchase Receipt and Agreement were admissible in evidence as evidence of payment of purchase price or money.

Learned Counsel for the Appellant also submitted that whether or not temporary Receipt/Agreement is capable of conferring title or ownership of the said land on the Appellant is an issue to be decided at the end of the trial, and cannot therefore be a ground to reject the document for all purposes. It was then contended that the learned trial Judge was wrong in finding that the said document was tendered as an instrument of title. We were accordingly urged to hold that the rejection of the Temporary Purchase Receipt and Agreement in evidence led to a miscarriage of justice; and to set aside the Ruling of the learned trial Judge.

In response, learned counsel for the 2nd Respondent drew our attention to paragraphs 8, 9 and 15(i) of the Amended Statement of Claim to contend that it is clear that the Temporary Purchase Receipt and Agreement were pleaded as evidence of title. In other words, that the Appellant relied on those documents to seek for declaration of title to the parcel of land in dispute. It was then submitted that the Temporary Purchase Receipt and Agreement is a registrable instrument which purport to transfer the title in the land in dispute from the 1st Respondent to the Appellant. Section 16 of the Land Instrument Registration Law; Laws of Ogun State, 2006 and the case of Ogbimi v. Niger Construction Ltd (2006) 5 SCM 66 at 77 – 78 were cited in support.

It was further submitted by learned counsel for the 2nd Respondent that, in law, an unregistered registrable instrument is admissible only as a purchase receipt or an acknowledgement of payment of money but that admissibility of such document would depend on the purpose for which the document is pleaded. That, in the instant case, there is no doubt that the Appellant pleaded the Purchase Receipt/Agreement as evidence of his title to the land in dispute as evidenced by the relief claimed in paragraph 15(i) of the Amended Statement of Claim. We were accordingly urged to hold that the learned trial Judge was right to have rejected the Temporary Purchase Receipt/Agreement in evidence on the ground that it is pleaded as evidence of title but same was not registered.

Now, in the determination of this issue, the learned trial Judge held at page 99 lines 21 – 30 of the record of appeal as follows:
“…. The Claimant seeks a declaration of title as new owner vide the Receipt/Agreement sought to be tendered, the Purchase Receipt/Agreement was not pleaded nor tendered simply as a mere receipt acknowledging payment of money simpliciter, rather the purchase receipt/agreement purport to convey title of the land in question on the Claimant. In accordance with plethora of authorities and in compliance with Section 16 of the Land Instrument Registration Law, Laws of Ogun State Volume 3, it ought to have been registered. For the foregoing evaluation,… the receipt of Purchase/Agreement in the form in which it is pleaded and sought to be tendered are inadmissible in evidence…”

It is not in doubt that the Land Instrument Registration Law of Ogun State requires that, any document or instrument which purports to confer, convey or limit title to land must be registered. Section 16 of the said Law therefore stipulates that any such instrument, if not registered cannot be admitted as evidence of such title. That provision and similar enactments have been pronounced upon by this Court, and indeed, the Supreme Court in plethora of authorities. It should however be noted that the Temporary Purchase Receipt and Agreement, though not admissible to prove title, it is admissible to establish an equitable interest, which, if coupled with possession, is capable of conferring title which can only be defeated by a subsequent purchaser of the land for value without notice of the prior equitable interest of the prior purchaser. See Okoye v. Dumez (Nig.) Ltd (1985) 1 NWLR (pt.4) 783; Nsiegbe v. Mgbemena (2007) 10 NWLR (pt.1042) 364 and Ogbimi v. Niger Construction Ltd (2006) 9 NWLR (pt.986) 474 at 493.
A careful perusal of the pleadings in the Amended Statement of Claim and particularly paragraphs 8, 10 and 15(1), would show that the Temporary Purchase Receipt/Agreement was pleaded as the document conveying title to him. If it is for that purpose, the document would be inadmissible. However, the law recognizes that such document is relevant to establish the equitable interest of the person relying on it. For the purpose of establishing such equitable interest therefore, once the document is pleaded and is relevant to the issues in contention between the parties, it is admissible but only to establish the fact pleaded. Same will however not qualify as an instrument to be relied upon as transferring or conveying title. See Specomill Staff Co-Operative Thrift & Credit Society Ltd v. Oguntoyinbo & Ors (2017) LPELR – 43416 (CA); CSP L.L Anagbado v. Alhaji Idi Faruk (2018) LPELR – 44909 (SC) and Okpe v. Umukoro (2013) LPELR – 21999 (CA). It is therefore my view that the Temporary Purchase Receipt/Agreement is admissible, not as an instrument conferring title but as evidence of the transaction between the Appellant and the 1st Respondent. The learned trial Judge was therefore in error when he rejected same in evidence. Issues two and three (2 and 3) are therefore resolved in favour of the Appellant.

From the foregoing, it would be seen that, issues 2 and 3 having been resolved in favour of the Appellant and issue one (1) against him, this appeal has therefore succeeded in part. The appeal is accordingly allowed in part. Thus, that part of the decision of the trial Court rejecting the Temporary Purchase Receipt and Agreement in evidence is hereby set aside. On that premise, I order that the substantive suit be re-assigned by the Chief Judge of Ogun State to be heard by another Judge other than S. E. Akinbiyi, J.
There is no order as to costs.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the draft of the lead Judgment of my learned brother HARUNA SIMON TSAMMANI, JCA just delivered.

My Lord has dealt with the issues in this appeal adequately and I am also of the view that the appeal has succeeded in part.
I abide by the consequential order made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the lead judgment delivered by my learned brother, Haruna Simon Tsammani, JCA. I agree with his reasoning and conclusion reached therein that the appeal be allowed in part.

It is trite that a purchase receipt is admissible as evidence that there was an agreement for sale of land and that the purchaser paid the consideration for sale. See Atanda Vs. Honourable Commissioner for Lands and Housing, Kwara State (2018) 1 NWLR (Pt. 1599)32; Isitor Vs. Fakarode (2018) 10 NWLR (Pt. 1628) 416; Etajata Vs Ologbo (2007) 16 NWLR (Pt. 1016) 554; Warigbelegha Vs. Owerre (2012) 3 NWLR (Pt. 1283) pg. 513. In Okoye Vs Dumez Nig Ltd (1985) 1 NWLR (Pt. 4) 783 @ 790, Paras F-G, the Supreme Court, per Bello JSC (as he then was) held as follows:
“A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money or rent: Savage v. Sarrough (1937) 13 N.L.R. 141, Ogunbambi v. Abowab (1951) 13 W.A.C.A. 22, Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All N.L.R. 74, Oni v. Arimoro (1973) 3 S.C 163, Bucknor-Maclean v. Inlaks (1980) 8-11 S.C.”
At the trial which birthed the instant appeal, the Appellant sought to put a Temporary Purchase Receipt/Agreement amongst others in evidence. Upon an objection raised by learned Counsel for the Respondents, the lower Court rejected the document. I completely agree as decided in the lead Judgment that the Temporary Purchase Receipt/Agreement is admissible as evidence of the transaction between the Appellant and the 1st Respondent. It is also admissible to establish equitable interest in land.

It is for the foregoing reasons and further reasons elucidated in the lead judgment that I too allow this appeal in part. I also set aside that part of the Ruling rejecting the Temporary Purchase Receipt and Agreement in evidence. I abide by the consequential Order in the lead judgment.

Appearances:

CHIEF A. F. OKUNUGA, ESQ. For Appellant(s)

Respondents are absent For Respondent(s)