SKYE BANK PLC & ANOR v. MRS. DAMARIS DORIS JAMES & ORS (2018)

SKYE BANK PLC & ANOR v. MRS. DAMARIS DORIS JAMES & ORS

(2018)LCN/12285(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of December, 2016

CA/A/250/2013

RATIO

EVIDENCE: WHETHER AN UNREGISTERED INSTRUMENT IS ADMISSIBLE

“The settled position of the law is that any instrument which requires registration remains inadmissible in evidence unless and until it is registered. Even where it is inadvertently pleaded or tendered or produced in evidence, it is of no consequences whatsoever and should eventually be expunged from the records as it is considered an irrelevant piece of document incapable of being pleaded and/or cannot be given in evidence. The fact that there was no objection taken as to its admissibility at the time it was being tendered does not prevent its exclusion: see AKINTOLA vs. SOLANA (1986) 2 NWLR (PT. 24) 598; OREDOLA OKEYA TRADING CO. vs. ATTN-GEN. KWARA STATE (1992) 7 NWLR (PT.254) 412; ETAJATA vs. OLOGBO (2007) 16 NWLR (PT. 1061) 554 and a host of other cases decided in that light. See also the REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE vs. ADEAGBO (1992) 2 NWLR (PT. 226) 690” PER FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

1. SKYE BANK PLC

2. MR. AKINSOLA AKINFEMIWA Appellant(s)

AND

1. MRS. DAMARIS DORIS JAMES

2. MR. FREDERICK JAMES

3. HON. MINISTER FEDERAL CAPITAL TERRITORY ADMINISTRATION

4. LOLA ASHIRU Respondent(s)

FREDERICK OZIAKPONO OHO, J.C.A.(Delivering the Leading Judgment):

At the High Court of the Federal Capital Territory, sitting at Abuja in Suit No FCT/HCV/2198/2009 the 1st and 2nd Respondents in this case as Plaintiffs filed an action against the Appellants as Defendants in which the 1st and 2nd Respondents at Paragraph 18 of their Amended Statement of Claims, claimed against the Appellants as Follows;

WHEREFORE the Plaintiffs claim against the Defendants as follows;

“1. An ORDER OF INJUNCTION restraining the 1st and 2nd Defendants either by themselves or by their agents, assigns or any person howsoever claiming through them from partitioning Plot 1949 A02 Wuse 1 District Abuja for the purpose of giving the said part to the Plaintiff.

2. AN ORDER OF INJUNCTION restraining the 1st and 2nd Defendants either by themselves or by their agents or any person howsoever claiming through them from asserting any right of ownership over any portion of Plot 1949 adjoining plot 1950 A02 Wuse 1 District Abuja.

3. A DECLARATION that the plaintiffs are entitled to a statutory right of occupancy in respect of Plot 1949 A02 Wuse 1 District Abuja.

4. AN ORDER directing the 1st and 2nd Defendants to surrender the Original Certificate of Occupancy and any other document relating to Plot 1949 A02 Wuse 1 District Abuja to the Plaintiffs or their agents.

5. An order directing the 3rd Defendant to register the Deed of Assignment and Irrevocable Power of Attorney dated 9th July 2004, which was executed by the 1st and 2nd Defendants in favour of the 1st Plaintiff.

6. The sum of Two Hundred Million Naira as special and general damages against the 1st and 2nd defendants jointly and severally for the loss of earnings by the Plaintiffs as a result of the Defendants refusal to give up vacant possession of Plot 1949 A02 Wuse 1 District Abuja to the Plaintiffs.

On the 26-11-2010 the 1st and 2nd Defendants, filed their joint statement of Defense of 11 paragraphs. The 3rd and 4th Respondents were joined by an order of Court on the 5-10-2011. At the close of trial, the learned trial judge delivered a considered judgment. In his Judgment on the 5-2-2013, the learned trial Judge held as follows;

“In the sum total, the Plaintiffs partly succeeded in reliefs 1, 2, 4 and 5 while reliefs 3 and 6 are hereby dismissed.”

In essence the learned trial judge granted an injunction restraining the Appellants as Defendants from partitioning Plot 1949; an injunction restraining the Appellants as Defendants from asserting any rights of ownership over any portion of the Plot 1949; an order directing the Appellants as Defendants to surrender to the Respondents the original Certificate of Occupancy and any other document relating to the Plot 1949; and an order directing the 4th Respondent to register the Deed of Assignment and Irrevocable Power of Attorney.

Dissatisfied with the Judgment, the Appellant has filed this Appeal challenging the decisions of the learned Trial Judge vide a Notice of Appeal filed on the 6-2-2013. Five (5) Grounds of Appeal were canvassed by the Appellants which are reproduced hereunder without their particulars as follows;

GROUNDS OF APPEAL;

1. The learned trial judge erred in law when he relied on Exhibit 1 and 12 held that the 1st and 2nd Respondents have established their equitable interest over plot No 1950 Cadastral Zone AZ Wuse 1, District Abuja (“the Res”) even when the 1st and 2nd Respondents admitted that they were not in possession.

2. The learned trial judge erred in law when he held that all the circumstances that warrant the Appellants to rely on any of the exceptions as stated in Section 128(1)(a)-(b) and (c) of the Evidence Act, 2011 as amended are absent in this case and as such the Appellants cannot rely on them.

3. The learned trial judge erred in law and came to a wrong conclusion when he failed to give due consideration to Exhibit 13 and the case/defense of placed before him by the Appellants by not evaluating same and coming to findings that accord with the law thereby denying the Appellants the right to be fairly heard and occasioning a gross miscarriage of justice to the Appellants.

4. The learned trial judge erred in law when he held that PW1 is a proper person through whom Exhibit 1 and 12 could be tendered as he had dealing on it and has acquired knowledge of the content and thereafter proceeded to attach full weight and probative value on the said Exhibit.

5. The learned trial judge erred in law when he held that the 2nd Respondent has locus standi to institute this suit against the as (sic) the 2nd Respondent could have been joined as a party and would suffer some injury or hardship arising from the litigation.

There were two issues nominated for the determination of this Appeal by the Appellants. These issues are as follows;

1. Whether, given the fact that, it had dismissed the Respondents claim for a declaration of statutory title, the Trial Court was correct to rely upon the inadmissible evidence of Exhibits 1 and 12 to grant the Respondents a relief they did not claim for in their Writ of Summons or Statement of Claim, [Grounds: 6 and 7 in the Amended Notice of Appeal].

2. Whether on a proper evaluation and appraisal of the principal documentary evidence relied upon by the parties, the Trial Court was correct in finding that the Respondents’ case is more acceptable than that of the Appellants, thereby causing a miscarriage of justice to the Appellants. [Grounds: 3 and 4 in the Amended Notice of Appeal]

On the part of the learned 1st and 2nd Respondent’s Counsel, before formulating two issues for the Court’s determination he rightly drew Court’s attention to the fact that the Appellants neither formulated any issue nor made submission with regards to Grounds 2 and 5 of their Notice of Appeal and as such had told Court that the said Grounds are deemed abandoned and urged upon this Court to so do. Counsel cited the case of DR. E. O IMASEUN vs. UNIBEN (2011) ALL FWLR (PT. 572) in support. The settled position of the law is that on account of Ground or Grounds of Appeal for which no issues are formulated, such Ground or Grounds are deemed abandoned and are liable to be struck down. There are too many decided authorities on this. See the cases of IKEGWUOHA vs. UNIVERSITY OF JOS (2005) ALL FWLR (PT. 280) 1573; IYOHO vs. EFFIONG (2007) 11 NWLR (PT. 1044) 31; ONIFADE vs. OLAYIWOLA (1990) 7 NWLR (PT. 164) 130 and a host of other decisions on the subject. Against this backdrop, the said Grounds 2 and 5 hereby made to suffer the harmer of a strike down.

From the surviving Grounds of Appeal, learned 1st and 2nd Respondents? Counsel formulated the following issues;

a. Whether the learned trial judge rightly admitted Exhibits 1 and 12 as evidence of 1st and 2nd Respondents acquisition of equitable interest in Plot No. 1949 CADASTRAL ZONE A02 WUSE 1 DISTRICT ABUJA and thereafter relied upon same to hold that they have acquired equitable interest in the said property (Grounds 1, 4, 6 and 7).

b. Whether the learned trial judge embarked on a proper evaluation of all the pieces of evidence led before him while making finding of facts and consequently considered the case of the 1st and 2nd respondents more probable than that of the Appellants (Grounds 3).

Having carefully read the issues formulated by both sides to the divide, it is not difficult nonetheless to discern that what seem to set the two sets of issues apart is all a matter of phrasal disparities and no more. Both set of issues have accommodated within them, a lot of common issues such as the admission and reliance on Exhibits 1-12 and the question of whether there was proper evaluation of evidence by the trial Court. In this connection, this Court shall determine this Appeal by relying on the issues as formulated by the Appellants.

ARGUMENTS OF LEARNED APPELLANTS? COUNSEL;

ISSUE ONE:

Whether, given the fact that, it had dismissed the Respondents claim for a declaration of statutory title, the Trial Court was correct to rely upon inadmissible evidence of Exhibits 1 and 12 to grant a relief not claimed by the Respondent in their Writ of Summons or Statement of Claim, [Grounds: 6 and 7 in the Amended Notice of Appeal].

Counsel drew attention to 1st and 2nd Respondents’ Amended Statement of claim, Paragraph 18 (c). (See page 8 of the Record of Appeal), where he said that the Respondents claimed a declarative relief for the statutory right of occupancy in respect of Plot 1949 A02 Wuse 1 District Abuja. It was the argument of Counsel that in numerous cases such as: OYADARE vs. KEJI (2005) 1 SC (PT. I) AT 28 and IDUNDUN vs. OKUMAGBA (1976) 10 SC 445, that the production of title documents duly authenticated and executed is one of the five ways of establishing title to land; and that the Respondents pleaded the Irrevocable Power of Attorney (“Exhibit 1?) and a Deed of Assignment (“Exhibit 12”) both dated 9 July 2004 in favour of the 1st Respondent to support their claim for a declaration of statutory title.

It was the contention of Counsel that from the Records, it is clear that, Exhibits 1 and 12 were instruments for the purposes of Section 2 of the Land Instrument Registration Act 2004, which should have been registered under Section 15 of the said Act and that all parties in this case and the lower Court acknowledged and admitted the fact that, Exhibits 1 and 12 were unregistered instruments for the purpose of Section 15 of the Land Instrument Registration Act 2004. But that in its Judgment the lower Court made findings at page 175 lines 3-4 of the Records, that Exhibits 1 and 12 have not been registered with the 3rdDefendant who has the statutory duty to register all lands in Abuja. Not only this, Counsel said that at page 26 of its judgment, the Court went ahead and dismissed the Respondents’ claim for a declaration of statutory title. See page 177, line: 13 of the Record of Appeal.

Learned Counsel’s grouse here is that having dismissed the Respondents principal claim for a declaration of the statutory right of title the Court then proceeded to admit the unregistered Exhibits 1 and 12 in order to consider the novel issue of the equitable interest in Plot 1949, where it went back and stated on page 176 of the Record of Appeal that the said Exhibits even though not registered is still admissible by Court to prove that the plaintiffs have acquired an equitable interest in Plot No. 1949, Cadastral Zone A02 Wuse 1 District Abuja, which is as good as a legal estate; that the plaintiffs equitable interest having not been defeated by a purchaser of the Plot No. 1949, Cadastral Zone A02 Wuse 1 District Abuja for value without notice of the prior interest of the plaintiffs are deemed as legal owners of the said plot of land in dispute. (See page 176 paragraph 1 of the Record). It was also contended by Counsel that an examination of the Writ of Summons and Statement of Claim in this case would clearly show that the Respondents did not claim a declaration for the equitable interest in Plot 1949.

In this regard, learned Counsel submitted that a judge has no power to consider and make an order or grant a relief, which has not been asked for in a plaintiff’s pleadings. He cited the cases of NALSA & TEAM ASSOCIATES vs. NNPC (1991) 8 NWLR (PT.212) 652 at 659; OLADUNJOYE vs. AKINTERINWA (2000) 4 S.C. (PT. 1) 19 where the Supreme Court per KATSINA-ALU, JSC had this to say at page 29 line 11 to 31 that:

“It is trite that parties are bound by their pleadings: See Obimiami Brick & Stone (Nig) v. A.C.B. Ltd (1992) 3 N.W.L.R. (PT 229) 260. The essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid element of surprise by either party … In the present case … the declaration of title granted by the Court below was clearly a relief not claimed by the plaintiff I do not think there is any justification for the grant. This is because a Court has no jurisdiction to give a party a relief he has not asked for: see Ugo v. Obiekwe (1989) 1 NWLR (PT 99) 514 … The plaintiff in this case is clearly not entitled to the declaration of title not claimed by him.”

See also A.G. FED. vs. A.I.C. (2000) 10 NWLR (PT. 675) 293 at 305.

In addition Counsel submitted that, in so far as the trial Court had already dismissed the Respondents claim for a declaration of statutory right of occupancy as he had earlier said that they were inadmissible, the Court did not have the jurisdiction to re-admit the same Exhibits 1 and 12 in its consideration of the issue of the equitable rights of the Respondents over Plot 1949; an issue that was never claimed by the Respondents in their Writ of Summons or Statement of Claim. Counsel cited the case of EMUZE vs. VICE CHANCELLOR, UNIVERSITY OF BENIN & ANOR (2003) 5 S.C. 203 at 208.

On account of the other injunctive Orders granted by the trial Court, Counsel contended that the Reliefs 1, 2, 4, and 5 which were granted by the trial Court to enforce the grant of equitable interest to the Respondents are not sustainable in law because of the Court’s lack of jurisdiction to consider, determine and award a relief not claimed by the Respondents. Counsel cited the case of AKINDURO vs. ALAYA (2007) 6 S. C. (PT.II) 120 where the Supreme Court per ADEREMI, JSC had this to say;

“The Court does not make a practice of granting a relief not sought. There is no leg of the claims for any equitable reliefs; the lower Court therefore went beyond the case formulated before it by prompting the respondent to enforce this right by specific performance when such was not prayed for. Having held and rightly in my view, that the claim for declaration failed, any pronouncement by the Court below that the Appellant in that Court was duty bound to hand over a plot to the respondent in that Court, now the Appellant, has no support in law … The Court below having rightly held that the Plaintiff/Appellant failed to prove that he was entitled to declaration of title to land … was in error to have granted an order for perpetual injunction in favour of the Plaintiff/Appellant … ln this case, as I have pointed out, the Court below has rightly refused to grant the relief for a declaration of title. It is therefore not proper to order an injunction against the Defendant/Cross-Appellant.”

Arising from the foregoing, Counsel urged the Court to dismiss the Respondents claim for declaration of statutory title, as the trial Court had no basis in law to have granted Reliefs: 1, 2, 4, and 5. He urged the Court to resolve Issue one in favour of the Appellants and allow this Appeal.

ISSUE TWO:

Whether on a proper evaluation and appraisal of the principal documentary evidence relied upon by the parties, the Trial Court was correct in finding that the Respondents’ case is more acceptable than that of the Appellants, thereby causing a miscarriage of justice to the Appellants. [Grounds: 3 and 4 in the Amended Notice of Appeal]

Under this issue Counsel took a swipe at the lower Court?s evaluation of evidence in this case which he said was faulty. He said that the trial Court failed to correctly appraise the principal opposing documentary evidence adduced by the Respondents and the Appellants in a number of respects which he gave as follows;

1. The trial Court erroneously placed reliance on and gave maximum probative value to the contents of Exhibits 1 and 12, the Irrevocable Power of Attorney and Deed of Assignment both dated 9th July 2004 and tendered by the 2nd Respondent, who was not the maker of the Exhibits; and;

2. The Trial Court failed to ascribe any weight and give due consideration to Exhibit 13, a letter written by the Respondents’ then counsel, Alex Ofehe, Esq., which contains two admissions against the interest of the Respondents.

In addition to these Counsel said that as a result of these errors and failure, the finding of fact by the lower Court was wrong; and that its subsequent decision that the Respondents had established their acquisition by equitable interest over the entire Plot 1949 was perverse and has resulted in a miscarriage of justice to the Appellants.

On the question of the probative value of the said Exhibits, Counsel contended that the Exhibits have no probative value and should not have been relied upon them in arriving at the conclusion that the Respondents had acquired an equitable interest over the whole of Plot 1949 as the said Exhibits had no probative value in the sense that they were not tendered through its maker, thereby contravening Section 83 (1) (a) and (b) of the Evidence Act 2011. Counsel further contended that Section 83 (1) without the proviso in 83(1) (b) makes the presence of the maker of a document compulsory for it to have probative value. But that the proviso to Paragraph (b) permits a document to be tendered by persons other than their makers if the exceptions are shown to exist. Generally, he also contended that in the absence of any of the exceptions, a document sought to be tendered in evidence must be tendered by the maker before full probative value can be ascribed to it. He cited the case of AWUSE vs. ODILI (2005) 16 NWLR (Pt.952) 515 and U.B.N. PLC vs. ISHOLA (2001) 15 NWLR (PT.735) 47 in support. Counsel also cited the case of HARUNA vs. MODIBBO (2004) 16 NWLR (Pt. 900) 487 at 544- 545 Paras. F-E, where this Court per ADEREMI, JCA held that the lower tribunal overlooked the conditionalities that must be fulfilled or satisfied before any evidential value can be accorded to a document sought to be tendered by a person other than the maker.

He further held that, as there was no evidence before the lower tribunal in conformity with the provisions of Section 91(1)(b) (now Section 83 (1) (b) of the Evidence Act 2011) to excuse the absence of the makers of the document in question, nor evidence that they were subpoenaed, the testimonies of the witnesses relating to the document and the document itself lacked any evidential value.

Counsel also cited the case of OMEGA BANK (NIG) PLC vs. O.B.C LTD. (2005) 8 NWLR (PT. 928) 547 at 582 where he said that the Supreme Court appropriately prescribes the effect of non-adherence to the conditions stipulated in Section 91(1) (Section 83 (1) and also where none of the exceptions under 91(1) (b) is shown to exist per TOBI, JSC;

“It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while the maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value to is as good as the mere paper on which it is made.”

From the foregoing Counsel argued that no weight can be attached to Exhibits 1 and 12 and that, both Exhibits are therefore worthless documents. Counsel next drew attention of Court to the Court’s reaction on the issue where the Court said;

“On the contention of the 1st and 2nd defendants that Exhibits 1 and 12 tendered by the 2ndplaintiff who is not the maker thereof lacks probative value and no weight can be attached to Exhibits 1 and 12 and relied on … INIAMA V. AKPABIO (supra)… Section 83 (1) (a) (b) and (4) of the Evidence Act 2011. I wish to discountenance the contention with reference to Section 83 (2) and (3) of the Evidence Act 2011. I so hold.”

Arising from this position, Counsel submitted that the lower Court’s reliance on Sections 83 (2) and (3) of the Evidence Act 2011 is wrong as the sections deal with the admissibility of documents alone. It was further submitted by Counsel that the principal issue of contention here is not the admissibility of Exhibits 1 and 12 but the unjustified probative value or weight that the trial Court attached to these Exhibits. He said that in a large number of cases the Courts have distinguished between the issue of admissibility of a document and that of the accordance of probative value. Counsel cited the case of ETAJATA vs. OLOGBO (2007) 16 NWLR (PT. 1061) 554 at 587 Paras A- C, where the Supreme Court per MUHAMMED, JSC held that the mere admission of a document which otherwise was inadmissible and even where the opposing party did not object, cannot confer any right on a learned trial judge to ascribe any probative value to the document as it is trite law that admitting a document in evidence whether wrongly or rightly is different from its proper valuation. See the case of ABUBAKAR vs. CHUKS (2007) 18 NWLR (PT. 1066) 386 @ 403 and 404 Paras F-A, where the Supreme Court per TOBI, JSC had this to say on the subject;

“Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage, the Judge is involved in the evaluation of the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.”

Counsel urged the Court to hold that there was no evidence before the Trial Court upon which it could have established, proved and decided that the Respondents had acquired an equitable interest over Plot 1949 as Exhibits 1 and 12 which the Trial Court relied on had no evidential value.

On the question of the probative value to be accorded Exhibit 13 [pages 317 – 318 of the Record of Appeal], which is a letter dated 28 April 2004 from the 1st Respondent’s lawyer to the Appellants, Counsel referred Court to the statements which the 1st Respondent’s lawyer made thereto as follow;

1. “That our client bought a property from Prudent Bank now Skye bank since May 2004…Since then, our client has on many occasions demanded from you a deed of partitioning…”,

2. “Our client also told us that you have converted her property to your own use, i.e. your officials and customers cars are being parked there as well as your generating set which amounts to conversion of the said property.”

Against this back drop, Counsel submitted that the statements by the 1st Respondent’s lawyer are two admissions against the interest of the Respondents in that, both statements are evidence that the Respondents only acquired a portion of Plot 1949 as opposed to the entire Plot, as against the Respondents’ claim that the 1st Respondent bought the entire Plot. These admissions, Counsel said are relevant to the facts in issue in this case by virtue of Section 24 of the Evidence Act 2011, which provides that: “admissions are relevant and may be proved as against the person who makes them or his representative in interest.” Counsel cited the case of CAPPA & D’ ALBERTO LTD vs. AKINTILO (2003) 4 S.C. (PT. II) 1. It was explained by Counsel that in the first statement in which the 1st Respondent’s lawyer clearly requested for a Deed of Partition is evidence of the truth that, what the Appellants sold to the 1st Respondent is a portion of Plot 1949 and not the entire plot. Counsel referred to BLACK’S LAW DICTIONARY, 9th EDITION, Page 1229 where the expression; ‘DEED OF PARTITION’ is defined at Page 476 as: “a deed that divides land held by joint tenants, tenants in common, or coparceners.”

As a result of this, Counsel argued that the logical conclusion to be derived from the admission in the first statement is that the only reason the Respondents’ lawyer was demanding a Deed of Partition was because his client, the 1stRespondent wanted to formally divide Plot 1949 into two separate portions further to her purchase of a portion of the said plot. Counsel suggested that the Respondents’ lawyer would not have demanded the issuance of a Deed of Partition for any other reason than to divide Plot 1949 into two portions. It was the submission of Counsel that the first statement and admission clearly supports the Appellants defense and contradicts the evidence of the Respondents’ Exhibits 1 and 12.

In respect of the second statement, in which the 1st Respondent’s lawyer complains about the conversion of his client’s property through the parking of vehicles belonging to the 1st Appellant’s clients and the presence of the generator is clear evidence of the truth that, the portion sold to the 1st Respondent by the Appellants was the undeveloped part of Plot 1949, where cars were parked, and the generating set was located. Counsel also argued that the reason why the 1st Respondent’s lawyer was complaining only about the undeveloped part of Plot 1949 was because the developed part housed a fully operational branch of the Appellant’s banking business. And that this is further proof that the lawyer’s complaint had to do with the 1st Respondent’s undeveloped portion of Plot 1949, and not the Appellants’ fully developed portion. In line with the above it was argued by Counsel that the Respondents failure to challenge, contradict or discredit Exhibit 13 is further support of the Appellants submission that the trial Court ought to have ascribed full probative value to Exhibit 13. It was also contended that the lower Court’s erroneous decision to attach full probative weight to Exhibits 1 and 12 when they were not tendered by the maker; and ascribe no weight at all or even consideration to Exhibit 13 had the unfortunate effect of wrongly shifting the burden of proof from the Respondents to the Appellants.

Counsel submitted that in civil cases, the burden of proof is not static but shifts from side to side. He cited the case of JINADU vs. ESUROMBI- ARO (2005) 14 NWLR (PT 944) 142 at 180 H ? 18 where this Court per SALAMI, JCA had this to say;

“… the proper position in law is that the onus of adducing further evidence is on the party that would fail or lose if such evidence were not introduced or adduced.”

Counsel contended that as Exhibits 1 and 12 had no probative value, the burden of proving the Respondents’ claims never shifted from the Respondents; and that even if in the unlikely event that it did shift to the Appellants, the admissions contained in Exhibit 13 correctly reverted the onus back on to the Respondents to adduce further evidence in opposition to Exhibit 13. It was further contended that as the Respondents failed to adduce further evidence and discharge the onus placed on them, the trial Court should not have entered judgment in the Respondents favour. Counsel submitted that the trial Court failed in its duty to give due consideration to the evidence adduced by the Appellant, and also failed to make the correct findings based on the evidence placed before it by both parties. This failure on the part of the Counsel said has led to gross miscarriage of justice because as the Appellants were not given a fair hearing before the Court below in contravention of their constitutional rights under the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Finally, Counsel in conclusion urged this Court to hold that the Trial Court failed to evaluate, or properly evaluate the principal evidence of the parties relevant to the issues in controversy; thereby, leading to a miscarriage of justice to the Appellants. He urged the Court to set aside the judgment of the trial Court and rule in favour of the Appellants in Issue two.

ARGUMENTS OF LEARNED 1st & 2nd RESPONDENT?S COUNSEL;

ISSUE ONE:

It was the argument of learned Counsel on this issue that an unregistered registrable instrument affecting land though not admissible to prove title to land is validly admissible to prove equitable interest and payment of purchase price and that such interest can only be defeated by a bonafide purchaser for value and without notice. He cited the cases of OYEKOLA vs. MARINHO & ANOR (2009) NWLR (PT. 671) at 77; ABU vs. KUTANBAWA (2002) 4 NWLR (PT. 718); ALI vs. UGWU (2012) ALL FWLR (PT. 619) 1105 CA; OKOYE vs. DUMEZ NIG. LTD (1985) 1 NWLR (PT. 4) 783. Counsel said that the learned trial judge in evaluating the evidence before him to wit: the Irrevocable Power of Attorney and Deed of Assignment between the Appellants and 1st Respondent (Exhibits 1 and 12 respectively) observed at page 176 Paragraph 1 of the records that though Exhibits 1 and 12 were not registered with the 3rd Defendant, same can still be admissible by the Court to prove that the Plaintiffs acquired an equitable interest in Plot No. 1949 CADASTRAL ZONE 102, WUSE 1 DISTRICT ABUJA, which is as good as a legal estate; that the Plaintiffs equitable interest having not been defeated by a purchaser for value without prior notice of the interest of the Plaintiffs are deemed as legal estate owners of the said plot of land in dispute.

It was the submission of Counsel that the learned trial Court’s statement on the issue represents the true position of the law. Furthermore, in answer to the Appellants’ contention that the trial judge erred when he relied on the said Exhibits 1 and 12 and granted the 1st and 2nd Respondents a relief not contained in their writ of summons, Counsel submitted that the law is clear without any equivocation that a Court may grant a relief not specifically pleaded and sought for by a party to meet the circumstance of the case, more so where there is in evidence facts it can rely on to grant the relief and to meet the justice of the case. Counsel cited the case of OBUEKE vs. NNMACHI (2012) 12 NWLR, (PT.1314) 353; NIMANTEKS ASSOCIATES LTD. vs. MARCO CONSTRUCTION CO. LTD. (1987) 2 NWLR (PT. 56) 267; AMAECHI vs. INEC (2008) ALL FWLR (PT. 407).

On the lower Court’s grant of reliefs 1, 2, 4 and 5, it was contended by Counsel that the 1st and 2nd Respondents wrongly cited the case of AKINDURO vs. AKAYA (Supra) as the authority does not apply to the facts and circumstances of this case and is therefore distinguishable in the sense that in AKINDURO vs. AKAYA (Supra), the Respondent did not seek any of those equitable reliefs in his writ and there were no facts to support those reliefs from his pleadings even as Exhibit 1, the document touching on the land was never pleaded as a receipt; that in the instant case, the position is different as it is clear from the 1st and 2nd Respondents’ Writ of Summons that, they specifically sought reliefs 1, 2, 4 and 5, while they copiously pleaded Exhibits 1 and 12 as receipt and evidence of transaction and led evidence to that effect upon which the trial Court relied on to grant the said reliefs.

On the question of the proper probative value to be accorded Exhibits 1 and 12, Counsel told Court that Appellants misconceived the position of the law by arguing that the learned trial judge ought not to have admitted or attached any probative value to the Exhibits as they were tendered by the PW1 who was not the maker of the said Exhibits. It was the submission of Counsel that the position taken by the Appellants on this issue, is nothing more than the general principle of law as encapsulated in Section 83 (1) of the Evidence Act (as amended) 2011. He said that Section 83 provides an exception in Sub-section (2)(a) to the effect that the Court is empowered to admit documents notwithstanding that the maker of the document is available but not called as a witness. He further said that the Apex Court in interpreting Section 90 (2) of the old Evidence Act which is in pari materia with Section 83 (1) of the new Evidence Act (supra) had this to say in the case of IGBODIN & ORS vs. OBIANKE & ORS (1976) NSCC VOL. 10 at pgs 472 and 473, per OBASEKI JSC;.

“It is settled law that documentary evidence can be admitted in Court proceeding through any witness by consent or without objection and Section 90 (2) of the Evidence Act 1990 gave the learned trial Judge power to admit the said document notwithstanding that their makers were available and not called as a witness.”

It was submitted by Counsel that from the Records particularly pages 181, 182 and 183 that the Appellants never objected to the admissibility of Exhibits 1 and 12 on the ground of not being tendered by the maker even as Exhibit 1 was admitted by consent of parties. Counsel referred Court to page 181 line 26 on this issue. Furthermore, Counsel argued that Exhibit 12 was admitted in evidence without any objection on the ground that the maker was not called to tender it, rather that the Appellant objected to its admissibility on the ground that the copy sought to be tendered had a seal while the copy frontloaded had no seal, thus, leading the Court into overruling their objections as unfounded in law and trivial. (See page 182 lines 20-43 and page 183 lines 1-3 of the records).

Still on this issue, Counsel contended that a party that fails or neglects to object to the admissibility of any document before such document a document is tendered and admitted, cannot be heard to complain on Appeal as he is deemed to have consented to its admissibility and therefore has waived his right of objection. Counsel cited the cases of OSENI vs. STATE (2012) ALL FWLR (PT. 619) 1010; LONGE vs. F. B. N. PLC (2006) ALL FWLR (PT. 313) where this Court per OGUNBIYI JCA (as he then was) had this to say on the subject;

“In other words and with the document Exhibit ?R? having been admitted in the circumstance at hand, it would no longer be within the legal sphere of the Court’s refusal to give full effect to the contents of the said Exhibit. Any objection by the Appellant at this stage is without more very belated. A document tendered by consent and admitted ought to be given full legal effect.”

See also the case of; GENERAL OIL LTD. vs. AGU (2005) ALL FWLR (PT.247)140 where the Court examined the issues involved and held thus;

“Where a document is tendered and admitted without any objection by the opponent, the trial Court is obliged to consider it. The fact that the maker of the document was not called as a witness, even where available does not make the document inadmissible or worthless.”

Counsel urged this Court to resolve this issue in favour of the 1st and 2nd Respondents.

ISSUE TWO:

In this issue, dealing with the question of evaluation of evidence, Counsel contended that evaluation of evidence is one of the primary functions of the trial Court and that the Supreme Court in the case of LAGGA vs. SARHUNA (2007) 16 NWLR (PT. 1114) 427 at 433-434, held that a Court of law is duty bound to consider the totality of the evidence led by each of the parties before it, and place it on the imaginary scale of justice to see which of the two sides weights more creditably than the other and that it involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version to the other.

Counsel said that upon a calm perusal of the records particularly (pages 171, lines 20-29) there is no doubt that the learned trial judge properly considered and evaluated all the pieces of evidence both oral and documentary tendered before it before making his proper findings of fact. In spite of this position, Counsel also contended that the trial Court has absolute discretion in the business of which evidence to believe or disbelieve upon proper evaluation. Counsel cited the cases of NIGERIAN BOTTLING COMPANY PLC vs. OKAFOR (2012) ALL FWLR (PT. 647) 770; MOGAJI vs. ODOFIN (1978) 4 SC 91; AJIBULU vs. AJAYI (2004) 11 NWLR (PT. 885) 458.

Counsel said that it was in carrying out its duty properly in evaluating the evidence placed before it that the trial Court made its fact findings while evaluating the said Exhibit 13 that the Court found as a fact that the case of the 1st and 2nd Respondents is more probable than that of the Appellants. Learned Counsel took this opportunity to remind the Court of the old refrain which enjoins that the Appellate Court will not interfere with the findings of a lower Court unless it is seen to be perverse; he cited the cases which refers to NIGERIAN BOTTLING COMPANY PLC vs. OKAFOR (2012) ALL FWLR (PT. 647) 787; OBUEKE vs. NNAMCHI (2012) 12 NWLR (PT. 1314) 331. It was also submitted by Counsel that the findings of the lower Court in this matter granting the 1st and 2nd Respondents equitable interest to the said property (Subject Matter) and other reliefs 1, 2, 4 and 5 are not perverse, unjust and are properly supported by the evidence led at the trial and as such should not be disturbed or interfered with by this Court. Counsel urged Court to discountenance the submissions of Appellants and resolving issue two in favour of 1st and 2nd Respondents.

RESOLUTION OF APPEAL

In the instant, Appeal Exhibits 1 and 12 are Irrevocable power of Attorney and Deed of Assignment respectively, both dated 9-7-2004 and issued in favour of the 1st Respondent to support Respondent?s claim for a declaration of Statutory right of title. It is of course clear from the records of Appeal that these instruments for the purpose of Section 2 of the Land Instrument Registration Act, 2004 are not registered. Under the provision of Section 15 of the Land Instrument Registration Law, 2004;

“No instrument 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: Provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1994, and not registered under this law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”

It is important to note that the said Exhibits 1 and 12 in this regard were tendered as receipts and admitted in Evidence to show that 1st Respondent had paid money/had maintained some transactions on the land in dispute with the Appellants herein. Under Section 2 of the Land Instruments Registration Law, 2004, an Instrument affecting Land, means a document affecting land in the State or Territory whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in Land in the State or Region or Territory and includes:

(a) An Estate contract;

(b) A Certificate of purchase;

(d) A deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which Section 27 of the Trustee Law extends but does not include will.

It is therefore clear from the above, that Exhibits 1 and 12 in this matter come within the ambience of the category of the Instruments required for the purchase or transfer of interests in land as envisaged by law. The said Exhibits 1 and 12 are therefore a registrable instrument in the actual sense of the words. It would be recalled that the lower Court did as much as made this his finding with regards to the question of the status of the said Exhibits 1 and 12 when at page 26 of the printed Records the Court went ahead and dismissed the Exhibits for lack of registration as envisaged. But the pertinent questions to address in the instant Appeal and which seemed to have puzzled the lower Court and the Appellants herein are:

1. What could possibly be the status of an unregistered Registrable instrument? And

2. Whether the learned trial Court could rely on Exhibits 1 and 12, which are unregistered Registrable instruments and grant Respondents reliefs not claimed?

Here was a situation in which the lower Court had in the course of trial, dismissed the said Exhibits 1 and 12 as instruments not capable of conveying any legal Estates, and consequently, dismissing the Respondents’ main claim for a declaration of statutory right of title at page 177 of the printed records.

The settled position of the law is that any instrument which requires registration remains inadmissible in evidence unless and until it is registered. Even where it is inadvertently pleaded or tendered or produced in evidence, it is of no consequences whatsoever and should eventually be expunged from the records as it is considered an irrelevant piece of document incapable of being pleaded and/or cannot be given in evidence. The fact that there was no objection taken as to its admissibility at the time it was being tendered does not prevent its exclusion: see AKINTOLA vs. SOLANA (1986) 2 NWLR (PT. 24) 598; OREDOLA OKEYA TRADING CO. vs. ATTN-GEN. KWARA STATE (1992) 7 NWLR (PT.254) 412; ETAJATA vs. OLOGBO (2007) 16 NWLR (PT. 1061) 554 and a host of other cases decided in that light. See also the REGISTERED TRUSTEES OF MUSLIM MISSION HOSPITAL COMMITTEE vs. ADEAGBO (1992) 2 NWLR (PT. 226) 690;

These instances, however, does not in the least suggest that an unregistrable instrument for all purposes remain unpleadable and inadmissible in evidence. Where for instance, it is shown to reflect the payment of money by the Grantee or purchaser and there is a receipt of the payment by the Grantor or vendor, it can be pleaded and admissible as a purchase receipt. See the cases of TEWOGBADE vs. OBADINA (1994) 4 NWLR (PT. 338) 326; TELLA vs. USMAN (1997) 12 NWLR (PT. 531) 168; MOJEKWU vs. MOJEKWU (1997) 7 NWLR (PT.512) 283. But as a pre-condition, the payment has to be coupled or accompanied by possession of the land by the purchaser, before an unregistered registrable instrument is admissible to prove equitable interest in land.

The principle behind this is that where the deed of conveyance or other document of title issued in favour of a purchaser is not registered but the holder is in possession of the land in dispute, an equitable interest in the property inures to his benefit under circumstances in which it is said to be as good as a legal estate. See the cases of DANTATA vs. DANTATA (2002) 4 NWLR (PT. 756) 144 AT 166 – 167; FAKOYA vs. ST. PAULS CHURCH, SAGAMU (1966) 1 ALL NLR 74 AT 80; OBIAJURU vs. OZIMS (1985) 4 SC (PT.1) 142 AT 163.

Where, the document is an unregistered registrable instrument, it will be admitted in evidence if it is tendered, not as an ‘instrument affecting land’ but only to establish evidence of a transaction between the parties. In the case of EDOHOEKET vs. INYANG (2010) 7 NWLR (PT. 1192) 25, this Court was of the view that where a document evidences the sale of land but from the proceedings in the case, the said document is tendered not as evidence of title but to merely establish a fact which one of the parties had pleaded, then such a document does not qualify as an instrument under the law and it is admissible without being registered.

Learned Respondent’s Counsel had contended that Exhibits 1 and 12 were copiously pleaded in the Statement of Claims of the Respondents as Plaintiffs. The Respondent’s Statement of Claims is contained at pages 4 to 8. The Paragraph 10 of the said statement of claim is perhaps, instructive on the fact of whether Exhibits 1 and 12 had been pleaded as ‘instruments affecting land’ or as ‘merely to establish a fact of sale’. For the avoidance of doubt the paragraph is hereby reproduced thus;

10. The plaintiffs further aver that in order to convince them to pay for plot 1949 AO2 Wuse 1 District, the Defendants agreed to execute both the Deed of Assignment and Irrevocable Power of Attorney dated 9th July, 2004 in favour of the 1st Plaintiff. The said Deed of Assignment and Irrevocable Power of Attorney are hereby pleaded as receipt and evidence of transaction and will be relied upon at the trial.? (Underline, mine for emphasis).

It may be necessary in this connection, to probably examine a related averment of the Respondents which has to do with the issue of possession. At Paragraph 12 of the said Statement of Claims, the Respondents as Plaintiffs aver that after sale of the said plot 1949 to them by the 1st Defendant who is 1st Appellant herein, the 2nd Plaintiff who is 2nd Respondent herein immediately went into possession and started developing the undeveloped portion subject to when the Defendants would give vacant possession of the other portion being occupied by them.

To begin with, learned Respondents’ Counsel had contended that although Exhibits 1 and 12 are unregistered registrable instruments duly pleaded as such and for purposes of evidencing their transaction in land with the Appellants and not intended as instrument affecting land, their claim in that respect, simply cannot be faulted by this Court. Paragraph 10 already reproduced in this judgment clearly bears this point. Paragraph 12 on the other also showed that the Respondents immediately upon the execution of the said Exhibits 1 and 12, entered into possession of the unoccupied section of the land. This, in the opinion of this Court effectively and completely proves the equitable interest of the Respondents on the parcel of land in dispute. In the case of DANTATA vs. DANTATA (2002) this Court per BULKACHUWA, JCA (now P.C.A) had to say on the subject;

“Any instrument requiring registration remain ineffectual unless and until it is indeed registered. Indeed by virtue of Section 15 of the Land Instruments Registration Law, no instrument shall be pleaded or given in evidence … unless such instrument shall have been registered… However, in appropriate cases, as in the instant case, where there is uncontrovertibly evidence that the Appellant signed the power of attorney, such instrument is capable of transferring an equitable interest …In a case of this type, it is the intent rather than the form that a Judex is enjoined by equity to look at.”(Underlined, mine for emphasis)

This principle with above decision is clearly in tandem with the earlier decision in FAKOYA vs. ST. PAUL’S CHURCH SAGAMU (Supra), which is a Supreme Court’s decision. Following from above, I find myself unable to fault the lower Court’s decision on the issue in going ahead to grant the Respondent’s equitable interest on the plot of land in issue. It would be recalled that what the Respondents’ as Plaintiffs had asked for in their claims before the trial Court was their statutory right of occupancy in respect of Plot 1949 AO2 Wuse 1 District Abuja and had at Paragraph 10 of their Statement of Claims, pleaded Exhibits 1 and 12 which are an Irrevocable power of Attorney and a Deed of Assignment respectively, both dated 9-7-2004 and issued in favour of the 1st Respondent by the Appellants, to support Respondents’ claim for a declaration of Statutory right of title.

It would also be recalled that the Respondents in their Paragraph 10 did not take the Appellants by surprise in any way when they categorically stated that the said Deed of Assignment and Irrevocable Power of Attorney were being pleaded as receipt and as evidence of transaction, which they were going to rely upon at the trial in establishing their case. With evidence of the Respondents’ being in possession and the fact that Exhibit 1 was duly issued to the 2nd Respondent under the hands and seals of the Appellant, I am once again unable to fault the learned trial Court’s finding granting the Reliefs of the Respondents as Plaintiffs.

On the question of whether the learned trial Court could rely on Exhibits 1 and 12, which are unregistered Registrable instruments and grant Respondents reliefs not claimed? It may be necessary to state here that the main role of the Court system in its adjudicatory and adversarial duties is to decide cases as formulated, presented and established by the parties themselves. See the case of ADETOUN OLADEJI (NIG.) LTD vs. NIGERIA BREWRIES PLC (2007) ALL FWLR (PT. 357) 837. In established judicial parlance, the Courts are said not to be the proverbial Father Christmas and would not make it a pastime to grant reliefs and Orders to parties not sought for. See AKINDURO vs. ALAYA (2007) ALL FWLR (PT. 381) 1652; VEEPEE IND. LTD vs. COCOA IND LTD (2008) ALL FWLR (PT. 425) 1667. Against this backdrop, it is settled principle of law that a Court seised of a matter is bound to limit itself to the claim before it. See DUMEZ vs. NWAKHOBA (2009) 2 FWLR (PT. 472) 4215; See also ELUMEZE vs. ELUMEZE (1969) 1 ALL NLR 311.

I have taken a very careful but calm view of the reliefs claimed by the Respondent’s as Plaintiffs before the lower trial Court. The Respondents’ Amended Writ of Summons and Statement of Claims are pasted at pages 271 to 277 of the records of Appeal. I am unable to agree with the Appellants that the lower Court had granted any reliefs not specifically claimed or sought by the Respondents. Learned Appellant’s Counsel made a heavy weather of the issue of evaluation of evidence on the one hand and the issue of the Court’s attachment of probative value to some of the Exhibits tendered and admitted as Exhibits under Section 83 (1) (a) and (b) of the Evidence Act, 2011 (As Amended). I am in agreement with learned Respondent’s Counsel that the position taken by the Appellants on this issue, is nothing more than the general principle of law as encapsulated in Section 83 (1) of the Evidence Act (as amended) 2011. There are always exceptions to every general rule especially as it is provided in Section 83 provides Sub-section (2)(a) to the effect that the Court is empowered to admit documents notwithstanding that the maker of the document is available but not called as a witness.

This, the Supreme Court has interpreted in Section 90(2) of the old Evidence Act which is in pari materia with Section 83 (1) of the new Evidence Act (supra) when the Court had this to say in the case of IGBODIN & ORS vs. OBIANKE & ORS (1976) NSCC VOL. 10 at pgs 472 and 473, per OBASEKI JSC;.

What is even more intriguing on the issue is that from the clear Records of this Appeal, particularly pages 181, 182 and 183, the Appellants never objected to the admissibility of Exhibits 1 and 12 on the ground of not being tendered by the maker even as Exhibit 1 was admitted clearly by the consent of the parties. In the final analysis, I do not find any merit in this Appeal which is to say the least moribund and it is accordingly dismissed with cost assessed at N50,000 in favour of the 1st and 2nd Respondents.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour of a preview of the leading judgment jut rendered by my learned brother, Frederick O. Oho, JCA. He has meticulously appraised all the issues formulated and canvassed in this appeal. I am in absolute agreement with the entire reasoning and the conclusion that the appeal is bereft of substance. It is accordingly dismissed.

I subscribe to all the consequential orders made in the judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.

Appearances

Maurice Asielue, Esq.For Appellant

AND

G. I. Ezeuko, Esq. for the 1st and 2nd RespondentsFor Respondent