TAHIR UMAR v. ALH. IBRAHIM UBA & ORS
(2019)LCN/13373(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of May, 2019
CA/J/31/2013
RATIO
PROLIFRATION
In the case of MUHAMMED HUSSENI AND ANOR V. MOHAMMED NDEJIKO MOHAMMED AND ORS (2014) LPELR 24216 the Supreme Court warned thus: –
A proliferation of issues should be avoided.”PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
ISSUES: ISSUES CONTAINING MORE THAN ONE QUESTION SHOULD NOT BE PRESENTED TO THE COURT
In the case of UGO V. OBIEKWE (1989) 21 SC (PT.11) 41, the Court said, thus:
It is undesirable to formulate an issue composed of more than one question for the Court for determination.”
See also the cases of CLIFFORD EBERE AND ORS V. IMO STATE UNIVERSITY AND ORS (2016) LPELR ? 40619, IBRAHIM V. OJOMO (2004) 4 NWLR (PT.862) 89 where his Lordship EDOZIE JSC (as he then was) said thus:
Prolix or Proliferation of issues is not ideal as it tends to obscured the core issues to be determined and tend to reduce the issues to trifles. Appeal are not won on large number or quantity of grounds of Appeal but on the quality of the content of the grounds of Appeal and issues.”PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: METHODS BY WHICH CONTENTS OF A DOCUMENT CAN BE PROVED
Under Section 85 of the Evidence Act 2011, the content of a document can be proved by either primary document that is the original document itself. See Section 86 (1) – (4), by secondary document which is the photocopy or certified true copy of the original. See Section 87 (a) – (e). Generally what the law is happy with is the primary document except where the law prescribes otherwise. See Section 88 of the Evidence Act. See the following cases.FAGBENRO V. AROBADI (2006) ALL FWLR (310) 1575 at 1598, EZEMBA V. IBENEME (2004) 7 SC (PT. 1) 45, SALAMI V. SAVANNAH BANK (1990) 2 NWLR (130) 106 at 135, MALLAM SANI OGU V. MANID TECHNOLOGY and MULTIPURPOSE CO-OPERATIVE SOCIETY LIMITED (2010) LPELR ? 4690, DENSY IND (NIG) LTD V. SUNDAY UZOKWE (1999) 2 NWLR (PT.591) PG. 392.PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
TAHIR UMAR – Appellant(s)
AND
1. ALH. IBRAHIM UBA
2. SHEHU IBRAHIM
3. MINISTRY OF LAND AND SURVEY BAUCHI STATE
4. NIGERIA AGRICULTURE CO-OPERATIVE AND RURAL DEVELOPMENT BANK LTD – Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Appellant herein as Plaintiff at the High Court of Bauchi State, Bauchi Judicial Division in paragraph 36 of his amended statement of claim claimed against the 1st, 2nd, 3rd, and 4th Respondent who were 1st, 2nd, 3rd, and 4th Defendants at the trial Court jointly and severally as follow:
PARAGRAPH 36:
WHERE OF the Plaintiff is aggrieved and claim against the Defendants jointly and severally as follows:
A. A DECLARATION that the Plaintiff has acquired equitable interest in the said property i.e. the Defendants house.
B. A DECLARATION that the act of the 1st and 2nd Defendants amount to fraud and cheating.
C. A DECLARATION that the transaction between the 1st and 2nd Defendant is a nullity.
D. A DECLARATION that the mortgage transaction between the 2nd and 4th Defendants is illegal, null and void.
E. AN ORDER setting aside the transaction between the 1st and 2nd Defendant having been vitiated with fraud.
F. AN ORDER nullifying the mortgage transaction between the 2nd and 4th Defendants.
G. AN ORDER conferring
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title in the said property to the Plaintiff.
H. A PERPETUAL INJUNCTION restraining all the Defendants or their agents from entering or doing anything prejudicial to the said property.
I. General Damages of Two Million Naira against all the Defendants for causing unnecessary hardship to the Plaintiff.
J. AN ORDER at specific performance mandating the 1st Defendant to conclude the transaction between him and the Plaintiff.
K. One Hundred Thousand naira being the professional fees for prosecuting this action.
L. ?The cost of this action.?
Issues were joined by parties. The 2nd Defendant in his statement of defence aver and counter claimed against the Plaintiff as follows:
1. ?The Plaintiff willfully lodged a vexations complaint against the2nd Defendant with the Military personal at the shadawanka barrack as a result the soldiers arrested him.
2. The soldier numbering about 20 stormed the business place of the 2nd Defendant where they embarrassed and humiliated him to the full glare of the public before bundling him to their barrack at Shadawanka Bauchi State.
3. The 2nd
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Defendant/Counter claimant further aver that it was the Plaintiff who led the soldier to his business place and he too participated in his embarrassment and humiliation and he was detained at their barrack for five (5) days all at the instance of the Plaintiff.
4. By reason of the above development, the defendant counter claimant suffered a serious humiliation, embarrassment and unequitable lack of image to the eyes of the general public who when his inglorious transaction and he is now patronage as a cheat, he was also subjected to psychological trauma and therefore claims against the Plaintiff as follows:
A. A Declaration that the act of the Plaintiff/Defendant in referring a pure civil matter to the Military personal and led them to the shop of the second Defendant where he was subjected to all sort of embarrassment is illegal, unlawful and unconstitutional.
B. A perpetual order of injunction restraining the Plaintiff, his agent, cohorts privies or any other person deriving his authority from further embarrassing, harassing or molesting the 2nd Defendant in respect of a pure civil matter in whatever way.
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C. N5,000,000.00 (Five Million Naira) general damages for the inhuman treatment and embarrassment metted on the 2nd defendant at the instance of the Plaintiff.
D. Cost of this action.
Equally the 4th Defendant in paragraph 12 of his statement of defence counter claimed as follows:
The fourth Defendant by way of Counter claim Repeats paragraphs denied and admitted in the statement of claim and claims as follows:
a. The sum of N1.5 Million (One Million Five Hundred Thousand Naira Only) being the monetary value of the mortgaged property paid to the 2nd Defendant by the 4th Defendant.
b. Interest at prevailing bank rate until full liquidation.
c. A. substantial cost against the Plaintiff and the second Defendants.
The Appellant/Plaintiff joined issues with the 2nd and 4th Respondent Counter claimant respectively denying their claims. The matters want into full Trial.
The brief fact of the case leading the trial at the lower Court is that sometimes in October, 1997 the 1st Respondent sold his house in Bauchi to the Plaintiff for the sum of Eight Hundred Thousand Naira Only (N800,000.00) The sale transaction
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was reduced into writing in both English and Hausa. The said agreement was tendered as Exhibit A and A1. Further to this the 1st Respondent further handed over to the Appellant a copy of his Application for the Governors consent and the Original Certificate of occupancy of the property with Registration number BA/19379. The Appellant took possession of the property. In 2007, a deed of assignment was executed between the Appellant and the 1st Respondent. See Exhibit B. In an attempt to register the said deed of assignment, by the Appellant?s counsel it was discovered that the 1st Respondent had on 18th January, 2002 sworn to an affidavit of loss of Certificate of Occupancy of the property with registration number BA/19379. Not this alone he also applied for certified true copy of the alleged lost Certificate of occupancy. He also on 12th January, 2004 applied to the 3rd Respondent for consent to assign the same property sold to the Appellant in 1997 to the 2nd Respondent Shehu Ibrahim, having sold the property for the sum of N200,000.00 to the 2nd Respondent. The application for permission to assign the property to the 2nd Respondent
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was granted on 28th day of January, 2004. On the 29th January, 2004 the 2nd Respondent was granted permission to mortgage the said property to the 4th Respondent (See Exhibit D 5 and F 5).
Consequent upon the forgoing discoveries by the Appellant, he confronted the 1st and 2nd Respondents. This led to the making of Exhibit C and C1 respectively cancelling the transaction between the 1st and 2nd Respondents and that between the 2nd Respondent and the 4th Respondent. Based on the foregoing facts the Appellant filed his suit against the 1st, 2nd, 3rd and 4th Respondents at the trial Court. The matter went into full trial. Both the Appellant, 2nd 3rd and 4th Respondents testified, called witnesses and tendered documentary exhibits. The 1st Respondent neither gave evidence nor called any witness. In the end and in his considered judgment the learned trial judge dismissed in entirety the claim of the Appellant.
Aggrieved by the outcome of the trial the Appellant filed his notice of Appeal dated 14th day of March, 2012 containing (9) nine grounds.
They are:
GROUNDS OF APPEAL
1. The Honourable trial judge erred in law when he held refusing
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to admit the original copy of the Certificate of occupancy tendered by the Appellant on the misconceived ground that it was not a certified true copy.
2. The Honourable trial judge erred in law when he held refusing to admit the photocopy of the Application for consent tendered by the Appellant on the misconceived ground that no foundation was laid.
3. The Honourable Trial judge erred in law when he misinterpreted and misapplied the principles in the cases of KANKIA V. MAIGEMU (2003) 6 NWLR (PT. 817) 496 at 503 and DADA V. DOSUNMU (2006) 18 NWLR (PT 1010) 134 at 139-140. Which he relied on and thereby arrived at a wrong decision contrary to the principle of law therein and held that onus is always on the Appellant to prove the identity of the land in issue even where the identity of the said land is not in issue.
4. The Honourable trial judge erred in law when he held that the claim and status of the Appellant contravenes Section 22 (1) and 26 of the Land Use Act Cap L.5. LFN. 2004.
5. The Honourable trial judge erred in law when he failed to consider the equitable interest and right of the Appellant over the property in issue
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created by an agreement which was never controverted by the Respondent and particularly the 1st Respondent.
6. The Honourable trial judge erred in law when he failed to discountence the tainted legal mortgage between the 2nd Respondent and the 4th Respondent despite of the manifest fraud committed in the said mortgage.
7. The Honourable trial judge erred in law when he held thus:
The 3rd and 4th Respondents had exercised diligence in exercise of certificate of Occupancy and also grant the Mortgage facility. The appellant has failed to make the appropriate claim against the Respondents to entitle him to the three elements he adumbrated not to defend his claims.”
8. The Court misdirected itself in fact when it held, dismissing the suit that.
Of course this may be morally wrong indeed the Court of Appeal and the Supreme Court landed its voice in this regard in line of the case notably among which is AWOJUGBAGBE LIGHT INDUSTRIES LTD V P. N. CHINUKWE and ANOR (1995) 4 NWLR part 390, 375 AT 426. The Supreme Court said at Page 426 per Onu JSC, it is morally despicable for a person who has benefitted from an
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agreement to live around and say that the agreement is null, and void. In the instant case, it is in equity and morally despicable for the Appellant after obtaining a loan and after utilizing the same to turn around and allege that the agreement (Exhibit E) between it and the grantor of the loan, 1st and 2nd Respondent is null void.”
9. The Judgment of the Honourable Trial Judge is against the weight of evidence before him.
Consequent upon the transmission of the Record of Appeal on 8/2/2013 and which was deemed as properly compiled and transmitted by the order of this Court granted on 15th day of February, 2017, Counsel filed and exchanged their brief of argument.
Let me quickly put on record that apart from the Plaintiff, 1st and 4th Respondents filling their respective brief of argument, the 2nd and 3rd Defendant did not file any.
In the Appellant?s brief of argument authored by I. D. Buzi of Counsel, the following issues are submitted for the determination of the Appeal.
1) Whether, the Trial Court erred in law when it held refusing to admit the original copy of the Certificate of Occupancy and
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photocopy of application for consent on the ground that only certified True Copy of the Certificate of Occupancy can be tendered and that no foundation was laid to tender the photocopy of the application for consent.
(GROUNDS 1 AND 2).
2) Whether the trial Court erred in law when it misinterpreted and misapplied the principles in the cases of KANKIA V. MAIGEMU (2003) 6 NWLR (PT. 817) 496 at 503 and DADA V. DOSUNMU (2006) 18 NWLR (PT.1010) 134 at 139 ? 140 which it relied on, and thereby arrived at a wrong decision contrary to the principles of Law therein and held that the onus is always on the Appellant to prove the identity of the said land in issue even where the identity of the land is not in issue. (Ground 3 of the Notice of Appeal).
3) Whether the Trial Court erred in law when it held that the claim and status of the Appellant contravenes Section 22 and 26 of the Land use Act Cap L 5 LFN 2004 (Ground 4)
4) Whether the trial Court erred in Law when it held refusing and failing to consider the equitable interest and right of the Appellant over the property in issue created by an agreement which was never controverted by
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the Respondent and particularly the 1st Respondent (Ground 5).
5) Whether the trial Court erred in law when it failed to discountenance the tainted legal mortgage between the 2nd Respondent and the 1st Respondent despite the manifest fraud committed in the said mortgage. (Ground 6).
6) Whether the trial Court erred in law when it held that ?the 3rd and 4th Respondent had exercised diligence in exercise of Certificate of Occupancy and also grant the Mortgage Facility. The appellant has failed to make appropriate claim against the Respondents to entitles him to the three elements he adumbrated not to defend his claims. (Ground 7)
7) Whether the trial Court misdirected itself in fact when it found and held that the actions of the Respondents were morally wrong inequitable null and void but yet went on to award judgment in their favour contrary to equity. (Ground 8)
8) Whether the trial Court properly evaluated evidence before it in reaching its decisions and judgment. (Ground 9).
On behalf of the 1st Respondent, Ben Ogbuchi of Counsel in his brief of argument formulated two issues for determination. They are.
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1) Whether the Plaintiff /Appellant proved his case as required by (sic) to have warranted the trial Court awarding Judgment in his favour as per the reliefs sought by him.
2) Whether the purported transaction between the Plaintiff/Appellant and the 1st Defendant/Respondent was a nullity in view of the provisions of Sections 22 and 26 of the Land Use Act, thus making the Judgment of the Trial Court which dismissed the Plaintiff/Appellant?s Suit unassailable.
For the 4th Respondent, M. A. Yakubu Esq., formulated the following issues for determination:
1) Whether the lower Court erred in law when it delivered Judgment in favour of the Respondent having regard to the entire circumstance of the case?
2) Whether the lower Court had properly evaluated the entire evidence before it and ascribed probative value thereof in arriving at its decision?
?I have carefully read through all the respective issues formulated by respective Counsel in this Appeal. I will tilt on the side of the eight (8) issues distilled by the Appellant for the determination of the appeal based on the nine grounds of appeal. However I am not impressed by the
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number of issues formulated because most of them offend against the rule of proliferation of issues which the apex Court and this Court frowns against.
In the case of MUHAMMED HUSSENI AND ANOR V. MOHAMMED NDEJIKO MOHAMMED AND ORS (2014) LPELR ? 24216 the Supreme Court warned thus: –
A proliferation of issues should be avoided.”
In the case of UGO V. OBIEKWE (1989) 21 SC (PT.11) 41, the Court said, thus:
It is undesirable to formulate an issue composed of more than one question for the Court for determination.”
See also the cases of CLIFFORD EBERE AND ORS V. IMO STATE UNIVERSITY AND ORS (2016) LPELR 40619, IBRAHIM V. OJOMO (2004) 4 NWLR (PT.862) 89 where his Lordship EDOZIE JSC (as he then was) said thus:
Prolix or Proliferation of issues is not ideal as it tends to obscured the core issues to be determined and tend to reduce the issues to trifles. Appeal are not won on large number or quantity of grounds of Appeal but on the quality of the content of the grounds of Appeal and issues.”
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See also NWAIGWE & ORS V. OKERE (2005) 5 ? 6 SC (PT. 11) 93, INEGBEDION V. SELO OJEMEN AND ANOR (2013) 1 ? 2 SC (PT.11) 59. In the light of the foregoing and consequent upon a sober reading of the issues formulated by the Appellant it is dawned on me that issue 2 ? 8 are: complaining of lack of proper evaluation of Evidence by the learned trial judge in reaching the conclusion there at.
In my view, issues 2 -7 can conveniently be collapsed into issue 8 which also is on lack of proper evaluation of evidence before the trial Court. On that note, I will adopt issue one and Eight for the determination of the appeal.
Therefore, the issues for determination are as follows.
1) Whether, the trial Court erred in law where it held refusing to admit the Original copy of the Certificate of Occupancy and photocopy of application for consent on the ground that only certified True copy of the Certificate of Occupancy can be tendered and that no foundation was laid to tender the photocopy of the application for consent.
2) Whether the trial Court property evaluated evidence before it in reaching its decisions and judgment.
ISSUE ONE
The complaint of the Appellant in this issue
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arose in the Course of the testimony of the Plaintiff as PW 4. He sought to tender a copy of the application for consent by the 1st Respondent to the 3rd Respondent to assign the property in issue to the Plaintiff consequent upon their concluded contract of sale of the said property and payment of Eight Hundred Thousand Naira only (800,000.00) by the Plaintiff to the 1st Respondent as the sale price. The learned Counsel to the 1st Responded vehemently objected to the admissibility on the ground that the document was not certified being a document from a private person to official body. All these happened on the 12th day May, 2009 (See pages 84 to 86 of the record of Appeal).
The other instance was when the Plaintiff wanted to tender the original Certificate of Occupancy given to him by the 1st Respondents after the sale transaction of the property between him and the 1st Respondent through PW 6 Haruna Barau Ningi, the Secretary Land Use Allocation Committee Bauchi State on 3rd March, 2010. Both the 1st, 3rd and 4th Respondents objected to the admissibility on the ground that only a certified photocopy of the original is admissible and not the original
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Certificate of Occupancy ( See pages 142 -145 of the Record of Appeal).
On the admissibility of the original Certificate of Occupancy, the learned Counsel to the appellant argued that the said Certificate was pleaded in paragraph 7 of the amended statement of claim of the Appellant. He referred to page 129 of the Record of Appeal. He contended that by Section 94 and 109 (b) of the repealled Evidence Act now Section 86 and 102 (b) of the Evidence Act 2011, the original Certificate of Occupancy is admissible.
Contending the reliance of the trial Court on the case of LAWSON V. AFANI CONTINENTAL CO. NIGERIA LTD (2002) 2 NWLR (PT. 752) at pages 613 ? 615, paragraph F ?D, he submitted to the contrary that the Appellant laid the necessary foundations and that it is trite that in the hierarchy of laws, statutes take precedence over case law and that it is trite and elementary, that Courts of law do not make laws but interprets the law. He added that an interpretation of law and in the absence of any ambiguity, Courts are mandated to apply a strict interpretation to provisions of law. He relied on the following cases AWUSE V. ODILI (2003) 18 NWLR
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(PT. 851) and A. G. ONDO STATE V. A. G. EKITI STATE (2001) 17 NWLR (PT. 743) page 756 para C- E, 763, para F ?G.
Further he contended that an original document in counterpart form in which one of the counterparts have been issued out, the original of such counterpart or its certified true copy is admissible in law. He added that it is a notorious fact that original documents such as copies of a Certificate of Occupancy are produced in a uniform process under Section 86 (4) and are executed in counterpart under Section 86 (3) of the Evidence Act. An original copy of it which has been handed to an Allottee while the relevant Ministry/ government Agency keeps the other copy for record purposes and that Section 102 (a) of the Evidence Act identifies the original copy kept by the relevant Ministry/Government agency as a public document. It is his case that the original copy of the said Certificate of Occupancy with registration number No. BA/19379 kept by the 3rd Respondent or other officer in charge and other original copy hitherto in the possession of the 1st Respondent are both original copies of each other under Section 86 (4) of the Evidence Act and
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while a copy was retained by the 3rd Respondent or other officer under Section 102 (a) and (b) as a Public Document, the other, equally original copy was issued to the 1st Respondent for his private keeps. It is his case that the original of the Certificate of occupancy is not lost but in possession of the Appellant same having been handed over to him by the 1st Respondent. He argued that there is no ambiguity in the explicit provision of Section 88 which mandatorily provides that all document shall be proved by primary evidence except in cases mentioned in the evidence Act. He added that there is no ambiguity in the provisions of Section 89 (e) and 90 (1) (C) which mandatorily prescribe the only kind of secondary evidence admissible in the absence of primary evidence of public document and that there is nowhere in the entire evidence Act wherein it is provided or even foreseen that secondary evidence would ever under any circumstances supercede primary evidence. He referred to Section 90 (1) (C) of the Evidence Act which has been interpreted by Courts that in the case of public document, the only type of secondary evidence permissible is a certified true copy
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of the document and none other. He argued that the 1st Respondent himself identified the said original Certificate of occupancy with number BA/19379 as contained in Exhibit C, D and F3 admitted. He referred to Section 13 of the Evidence Act 2011 on issue of admission. Also in this circumstances where the 1st Respondent has handed over the original Certificate of occupancy to the Appellant there would be no need for a certified true copy of certificate. He submitted that the trial Court wrongly rejected a most critical, relevant and admissible piece of evidence. He referred to Section 25 (2) of the Evidence Act and the case of S. P. D. C. (NIG) LTD v. OLAREWAJU (2002) 16 NWLR (PT.792) PG 55-56 PARA C F and G. N. T INVEST LTD V. WIH (2011) 8 NWLR PT. 1250 PG. 500 at 527 para D H and Pg 533 para D. G.
On the issue of the copy of the application letter for consent by the 1st Respondent, he submitted that PW4 in his testimony explicitly led uncontroverted evidence and stated that the said consent letter was obtained from the 1st Respondent himself and in no where did the Appellant stated or aluded that the said document was a copy obtained from
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a public officer hence it is a private document in private custody as at the time the 1st Respondent handed it to the Appellant. Therefore, the copy of the consent letter written by the 1st Respondent and yet to be submitted to the 3rd Respondent is a private document under the evidence Act hence a photocopy of it is admissible in evidence. He added that the trial Court utterly failed to apply the provision of Section 89 (a) (i) of the Evidence Act which allows for the admissibility of secondary evidence of documents which shows or which appears to be in the possession or power of the person against whom the document is sought to be proved more so when PW4 posited as to where, how and from whom he obtained the document. He argued that the consent letter is a registrable instrument and yet to be registered. He submitted that the said document is admissible in its form to prove an equitable interest and payment of the purchase prica. He cited the case ofISITOR V. FAKARODE (2008) 1 NWLR (PT. 1069) 602 at PP. 625, PARA AD. He submitted that a photocopy of the application for consent in possession of the 1st Respondent and yet to be delivered to the 3rd Respondent
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is admissible in evidence. He relied on Section 89 (a) (i) of the Evidence Act and the following cases of ABU V. KUYABANA (2002) 4 NWLR (PT. 758) 599 OKOYE V. DUMEZ (NIG) LTD (1985) 1 NWLR (PT.4) 783 and AGWUNEDU V. ONWUMERE (1994) 1 NWLR (PT. 321) 37.
He contended further that the suit of the Appellant as founded on equity. He relied on the case of TIMOTHY V. OFORKA (2008) 9 NWLR (PT.1091) 204 at 215, para H.
The 1st Respondent did not specifically and directly address this issue frontally but merely alluded to it in his submission when he contended that the trial Court?s Judgment dismissing the Plaintiff/Appellant?s suit is unassailable. He added that even though the Appellant tendered several documents the testimonies of those witnesses all of whom made reference to the exhibit tendered in the case, fell far below the standard required to prove the Plaintiff?s case on the preponderance of evidence for the declaratory relief sought. He contended that none of the witnesses produced in proof of the Plaintiff Appellant?s case, gave evidence on any of the exhibits and to that extent the exhibit were dumped on the Court leaving
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the Court with no option then to hold that the Plaintiff did not prove his case for which it was accordingly dismissed. He referred to the case of UCHA VS. ELECHI (2012) 12 NWLR (PT.1317) PAGE 330 at 360 PARA E ? G, A.C.N. VS. NYAKO (2015) 18 NWLR (PT. 1491) PAGE 352 at page 426 ? 427 para C ? B.
On behalf of the 4th Respondent, it is argued that the learned trial judge acted properly having regard to the evidence produced before him and the entire circumstance of this case when he granted judgment in favour of the 4th Respondent. He added that it has been long settled that to prove title to land the claimant must choose one of the five ways to do so. To succeed on such claim for declaration of title to land the party seeking the declaration must plead and prove any of the five different ways of ownership. Cogent and sufficient evidence must be adduced to prove that he has good title to the land in controversy as he will not be allowed to rely on the weakness of the opponent. He cited the case of OLUBODUN & ORS VS LAWAL & ORS VOL. 2 LLACP. 363.
?
He contended further that the Appellant in paragraph 6 ? 8 of his amended
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statement of claim (PP. 100-101) of the record. Pleaded purchase of the land indispute covered by Certificate of Occupancy No. BA/19379. He submitted that his claim was based on document of title such as conveyance etc. as stipulated in the case of OTUKPO V. JOHN VOL 49 NO 2 NSCQR 1304 at 1329. He submitted that the Appellant failed woefully to prove his title by documents conferring title of the land in dispute on him. He added that throughout the testimony adduced by the Appellant there was no any document that could have conferred title over the land in dispute on him. The Certificate of Occupancy NO. BA/19379 was tendered and rejected. He added that it was the contention of the Appellant that the application for consent to assign the property to him was not registered and abandoned since 2001. Therefore, the letter written to the 3rd Respondent cancelling the transaction between the 1st and 2nd Respondents as well as the one between the 3rd and 4th Respondents had no legal consequence as neither of them could have reversed the completed transaction without a subsequent registration of assignment at the Land?s Registry of Bauchi State. Therefore,
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Exhibits C and C1 are of no moment having regard to the validity of the 4th Respondent?s registered interest.
He submitted that the lower Court was right in rejecting the Certificate of occupancy No. BA 19379 in evidence as Exhibit for non-compliance with Section 88 and 102 (b) of the Evidence Act 2011 and failure to lay proper foundation.
On the issue of the consent letter, he argued that being a photocopy, it is inadmissible. He submitted that a photocopy of a document is inadmissible without full compliance with Sections 89 of the Evidence Act 2011. He referred to the case of OGU V. MT & MLS (citation not provided) and added that the Appellant?s case fell within the exception in the evidence Act. 2011 and hence has a duty and obligation to comply with requirement enumerated under Section 89 (a ? h) of the act. Having failed to comply with the provision, the document was rejected as exhibit. He add that assuming but not conceding that the piece of evidence was wrongly excluded by the trial Court, that will never be a ground in itself for the reversal of the decision by the trial Court.
He argued that both
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Section 251 (2) of the Evidence Act 2011 relied upon and the case of SPDC NIG. LIMITED V. OLAREWAJU (2002) 16 NWLR (PT. 792) PP. 55 ? 56 are of no moment and cannot help the case of the Appellant. He further argued that if the Certificate of Occupancy NO. BA/19379 was given its due consideration, it would never by any stretch of imagination advance the case of the Appellant in any material effect because the consent to assign in favour of the Appellant was never granted not to even talk of registering the Appellant?s title over the property. He submitted that every holder of a right of occupancy under the land use act requires the prior consent of the Governor before he can transfer or dispose of his interest. He cited the following cases BROSSETTE MANUFACTURING NIGERIA LIMITED V. ILEMOBOLA LTD & 30 ORS (2007) 3 LLAC PP.171 at 172, OLALOMI INDUSTRIES LTD VS. NIGERIA INDUSTRIAL DEVELOPMENT BANKS LTD (2009) 2 LLA PAGE 283 at 289. He contended further that Section 87 (b) or (c) of the Evidence Act do not envisage the admissibility of a photocopy of a document even if it is a private document. A photocopy being secondary evidence can only be tendered under
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Section 89 of the Evidence Act which was not hence it was rejected. Further to this no any foundation was laid and neither was the author or maker of the said letter of consent called to tender it.
He concluded that the trial Court was right to reject the document. It is his case that the case of ISITOR V. FAKARODE (2008) 1 NWLR (PT. 1069) 602 at 625 was of no moment as the letter of consent did not pass the of admissibility to merit any consideration attracting equitable interest or evidence of a transaction between the Appellant and the 1st Respondent. He added that equity does not supersede the provisions of the law more so when the pleadings were not based on equity. He submitted that the issue of identity of the land in dispute was not material in this case as the location of the house was agreed to by all the parties. He urged the Court to disregard all the argument advanced by the Appellant on the rejection of the Certificate of occupancy No. BA/19379 and the letter of consent and resolve the issue in favour of the 4th Respondent.
?
In the light of all the foregoing arguments for and against the pertinent question is whether or not in
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the circumstance of the evidence before the trial Court the rejection of the Original Certificate of Occupancy and the Photocopy of the application letter for consent written by the 1st Respondent and tendered by the Appellant is proper and in accordance with the provision of the evidence Act.
At this stage I consider it pertinent to state the position of the evidence Act regarding the admissibility of Original document which is referred to as primary document. The photocopy which is referred to as secondary document, public document and Certified True Copy.
Under Section 85 of the Evidence Act 2011, the content of a document can be proved by either primary document that is the original document itself. See Section 86 (1) ? (4), by secondary document which is the photocopy or certified true copy of the original. See Section 87 (a) ? (e). Generally what the law is happy with is the primary document except where the law prescribes otherwise. See Section 88 of the Evidence Act. See the following cases.FAGBENRO V. AROBADI (2006) ALL FWLR (310) 1575 at 1598, EZEMBA V. IBENEME (2004) 7 SC (PT. 1) 45, SALAMI V. SAVANNAH BANK (1990) 2 NWLR
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(130) 106 at 135, MALLAM SANI OGU V. MANID TECHNOLOGY and MULTIPURPOSE CO-OPERATIVE SOCIETY LIMITED (2010) LPELR ? 4690, DENSY IND (NIG) LTD V. SUNDAY UZOKWE (1999) 2 NWLR (PT.591) PG. 392.
For public document, the classification is under Section 102 of the Evidence Act. The issue of certification is under Section 104 of the Evidence Act 2011. For proof of public document see Section 106 of the Evidence Act.
Back to the case at hand. The Appellant sought to tender the original Certificate of occupancy No. BA/19379 which he said the 1st Respondent gave to him after the conclusion of the contract of sale of the property in issue. The Respondents vehemently objected to the admissibility on the ground that the said certificate of occupancy is a public document under Section 103 of the Evidence Act which requires certification under Section 104 of the Evidence Act 2011. The learned Trial Judge upheld the objection and rejected the said document as exhibit and ordered that it should be so marked. The question is whether the Appellant can tender the original certificate of occupancy allegedly given to him by the 1st Respondent who is his vendor
28
for the sale of the property in issue. It is not in dispute by all parties that the said Certificate of occupancy is the original and given to the Appellant by the 1st Respondent as pleaded by the Appellant in his amended statement of claim. (See paragraph 6 and 7 of the amended statement of claim). In paragraph 7 the Appellant averred as follows:
?The Plaintiff avers that as contained in the preceeding paragraph the 1st Defendant surrendered the Certificate of occupancy in respect of the sold house with registration No. BA/19379 to the plaintiff the said C of O is here by pleaded.”
Apart from the foregoing deposition the Appellant while testifying as PW4 also alluded to this fact. See page 84 of the Record of Appeal. Not this alone PW6 Haruna Barau Ningi, civil servant and secretary Land use allocation committee Bauchi State called as a witness by the Appellant and through whom the document was sought to be tendered said as follows: (See page 142 of the Record)
?My names are Haruna Barau Ningi. I live here in Bauchi. I am a civil servant. I am secretary Land Use Allocation Committee Bauchi State. I am aware why I am in
29
Court. I am here for a case in respect of landed property situate at Kobi street Gwallaga ward held by one Alhaji Ibrahim Uba under Certificate of occupancy No. BA/19379 issued to him in 1996 by engineer Ibrahim Musa Ningi the then Commissioner land and survey. I will definitely recognize the Certificate of occupancy by the name of the holder which is written at the top Alhaji Ibrahim Uba. Certificate number is written, the name and signature of Ibrahim Musa Ningi is written at the 2nd page of the Certificate. Witness shown the Certificate. Yes it is the Original copy.”
In the end, the Court in its considered ruling contained on pages 143 ? 145 as I said before rejected the original Certificate in evidence. The Court on page 144-145 said:
?. The Plaintiff Counsel is hereby relying on Section 94 of the Evidence Act which is not helpful to his case. This scenery is all fours with the case submitted by the 1st defence counsel. LAWSON V. AFANI CONTINENTAL CO. NIG LTD (2002)2 NWLR (PT.752) 585 at 613-615 paragraph F-G Ratio 16 when the Court of Appeal judge Kadija Akin said;
An examination of the
30
provision of Section 96 and 97 of the EA Cap 112 Laws of the Federation 1990 descries the original of public document admissible these fact along with Section 111 of the EA effective excluded the admissibility of primary evidence of a public document. Therefore, only certified True copy and not Original of document which qualify as act of public officers within the contemplation of Section 109 of the EA are admissible. The tendering in evidence of the original of such public document is erroneous and should be expunged where admitted in the instance case the application sought to tendered and did tender the original of Exhibit 3 a statutory right of occupancy and Exhibit 4 a survey plan counter signed by the survey general. The three documents qualify as act of public officers within the contemplation of Section 109 of the Evidence Act and therefore only certified true copies thereof are admissible. Consequently the tendering in evidence of the original of the public document was Erroneous.”
“Going by the above decision which is in all fours with the case in hand as the plaintiff counsel sought to tender the original certificate of occupancy in
31
evidence without certification cannot be allowed by the Court. Therefore the tendering of the original certificate of occupancy which is a public document is hereby rejected the submission of the plaintiff?s counsel is hereby rejected and the submission of the defence counsel is hereby upheld. In the result certificate of occupancy No. BA19251 sought to be tendered is hereby rejected and also marked tendered but rejected.?
As I said before the document sought to tendered is a certificate of occupancy which falls under those classified under S. 102 (a) (i) & (iii) of the Evidence Act as public document and to which Section 104 is applicable. There are legion of decided cases stating the position of the law that the only admissible form of public document is the certified true copy. Therefore it is trite that only certified copies of public document that are admissible in evidence in legal proceedings. See CHIEF PHILIP O ANATOGU & OR V H.R.H IGWE EWEKA II & ORS (1995) 9 SCNJ 1 AT 16; FELIX ANYAKORA & ORS V NWAFOR OBIAKOR & ORS (1990)2 NWLR, 130 52 AT 67; ARAKA V EGBUE (2003)17 NWLR (PT.848) PG.1, DR. IMORO & ANOR V HON. SERIAKE HENRY DICKSON & OR (2012) LPELR ? 9817.
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In the light of the foregoing, it is done on me that it is the law that the only admissible secondary evidence of a public document is the certified true copy. That is the purpose of S. 90(1) (c) of the Evidence Act 2011. I am therefore guided by the principle enunciated in the cases and I feel bold to say that the only admissible evidence to prove the existence, condition and content of a public document as in the appeal at hand is a certified true copy of the original and no other. See OMISORE V AREGBESOLA (2015)15 NWLR (PT.1482) 2015 AT 294, KUBOR V DICKSON (2012) LPELR -9817. The effect of the foregoing is that the trial Court was right in rejecting the admissibility of the original certificate of occupancy sought to tender by the appellant. Being a public document the only admissible type of such document is a certified true copy of the document. Let me add, that the situation would have been different if PW6 was able to show that the original is in his custody and that the certificate sought to tender is a counterpart of the original in his custody as a public officer and who issued to the 1st
33
Respondent and through whom the Appellant was put in possession of the said original certificate of occupancy. In the absence of the foregoing, his position remain as herein before determined.
Be that as it may, the next question is whether the learned trial Judge was right in rejecting the photocopy of the application by the 1st Respondent to the Bauchi State Ministry of Lands for consent to assign the said property in issue.
In paragraph 8 of the amended statement of claim of the plaintiff he posited as follow:
Paragraph 8
The plaintiff avers that the 1st Defendant applied for consent to assign the property to the plaintiff but never followed up to obtain the said consent. The application letter for the said consent dated 28th August 2011 is hereby pleaded.
PW4 the appellant in the course of his testimony before the trial Court said; (See pages 85 of the record of appeal)
When they gave the certificate of occupancy he also gave me a photocopy of consent letter and he will go and give the ministry of land one. The letter he gave me was an application for consent letter. If I see the consent letter I can
34
identify it because he signed it.
The application for consent was shown to the witness and he said yes.?
Based on the foregoing, the Appellant sought to tender the said letter as Exhibit. Objection was registered against the admissibility by both Counsel representing the 1st, 2nd and 3rd Respondents. The 4th Respondent?s counsel Yakubu Bako had no objection. (See pages 85 of the record of Appeal). In his considered Ruling, the learned trial Judge said thus: (See page 86 of the record)
The said witness did not sufficiently identify the document as submitted by the 1st and 2nd defence counsels (sic). Secondly this is a secondary evidence that is a photocopy of the document and no reason were given why the original was not produce by the witness and also no notice was given to produce the original letter. In view of the above stated reasons the said photocopy of letter of consent is attend (sic) the provision of Section 111 EA and therefore the objection of the 1st & 2nd defence counsels (sic) are hereby uphold (sic) colliery to that the history of letter of consent to the Hon. Commissioner of Land and Housing and
35
Environment is hereby marked tendered but rejected.”
The reason for the rejection of this document as Exhibit is that the said letter was not sufficiently identified, it is a photocopy (secondary evidence) and that no reason was given for why the original was not produced and no notice to produce the original letter. Further to these is that the letter offends Section 111 of the Evidence Act 1990 which is imparimaterial with Section 104 of the Evidence Act 2011. It prescribes certification of copies of public document. The question is whether such letter is a public document that requires certification. My reaction to this question is in the negative. The witness pleaded and posited that he was given the photocopy of the letter by the 1st Respondent. This in my view is to strengthen the trust of the Appellant in the sale of the property. (See para 8 of the amended statement of claim). The said letter was eventually not submitted to the commissioner for land. In my view, it appears that it got lost in transit. This is revealed by the searches conducted by the learned counsel engaged by the Appellant at the Ministry of Lands. The alleged finding of
36
the 2nd & 4th Respondent consequent upon the alleged search conducted by them where in they discovered that the said property has no encumbrances buttress this. Therefore, I am of the humble view that the learned trial judge was wrong in classifying the said document as a public document forming part of any official act or record of official Act of any sovereign authority nor an official bodies or act of any public officer, legislative, judicial and executive. At that time, it was not in the custody of any official body. The testimony of the Appellant on page 86 of the record and his averment in paragraphs 8 of the amended statement of claim which were neither contradicted nor controverted constitute sufficient notice to the 1st Respondent and others that the letter in issue would be relied upon. Based on the foregoing, it is my ardent view that the said letter ought to have been received in evidence as Exhibit. I accordingly so hold. I therefore set aside that part of the Ruling of the trial Court of 2nd May, 2009 rejecting the said document as Exhibit.
Issue one is therefore, resolved partly in favour of the Respondent as it relates to the
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admissibility of the original Certificate of occupancy and against the Respondent as it relates to the photocopy of the application letter for consent by the 1st Respondent.
Issue 2
Whether the trial Court properly evaluated the evidence before it in reaching its decision and Judgment.
This issue will be treated bearing in mind the complaints in issues 2 ? 7 by the Appellant which has been condensed into this issue 2. The complaint in nature are:
1. The finding of the Court that there is no proof of the identity of the land in issue.
2.That the status of the Appellant contravenes Section 22 (1) and 26 of the Land Use Act Cap L5 LFN 2004.
3. Failure to consider the equitable interest and right of the Appellant over the property in issue created by an agreement.
4. Failure by the trial Court to discountenance the tainted legal mortgage between the 2nd Respondent and the 4th Respondent.
5. The finding of the trial Court that the 3rd and 4th Respondents had exercised diligence in securing the Certificate of occupancy leading to the creation of the mortgage facility.
?6. Whether the trial
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Court misdirected itself on the evidence placed before it.
Having read through the brief of counsel for respective party, I will proceed with my consideration of issue two in the light of the forgoing complaints with a view of deciding whether or not the trial Court properly evaluated the evidence placed before it. I will rather not reproduce the arguments of respective Counsel which has formed part of the record of this Courts. In brief the contention of the 1st and 4th Respondents is that the learned trial judge properly evaluated all the material evidence placed before the Court before arriving at the conclusion thereat. Conversely the Appellant is of contrary view. His contention is that the learned trial judge failed to properly evaluate the evidence before the Court hence the conclusion reached.
Evaluation of evidence simply means the assessment of evidence so as to give value or quality to it. See the case ofONWUKA V. EDIALA (1989) 1 NWLR (PART.96) 182 at 208. Put in another way evaluation of evidence and ascription of probative value to them and making primary findings on them are matters within the province of the Court of trial
39
which has the singular advantage or is pre-eminently placed of hearing the witnesses as they testify and watching their demeanours. SeeBALOGUN AND ORS V. ALIMI AGBOOLA (1974) 1 ALL NLR (PT.2) 66, THE MILITARY GOVERNOR OF WESTERN STATE V. AFOLABI LANIBE & ANOR (1974) ALL NLR (PT. 2) 179. AKIBU V. OPALEYE (1974) 115 S.C. 189, MAGAJI V. ODOFIN (1978) 4 SC 91, UKPO AND ORS V. IMOKE AND ORS (2009) 1 NWLR (PT. 1121) 90 at 167; BALOGUN V. U.B.A. LTD (1992) 6 NWLR (PT.247) 336, OYEWOLE V. AKANDE (2009) 15 NWLR (PT. 1163) 911, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD AND ANOR V. MUTUNCI COMPANY (NIG) LTD. (2012) 6 NWLR (PT. 1297) 487 at 518 ? 519, ODUTOLA AND ANOR V. MABOGUNJE AND ORS (2013) 7 NWLR (PT. 1354) 552. If evaluation of evidence is the placing of the evidence adduced by the Appellant on one side of imaginary scale and that adduced by the Respondent on the other side of the scale and after which the trial judge will decide which one preponderate against the other. However if one party fails to call evidence, the evidence called by the other side would be accepted. The consequence of such is that the onus of proof in such situation is
40
discharged on a minimal of proof. See ADEYEYE V. AJIBOYE (1987) 2 NWLR (PART 61) 432, NWANKPU V. EWULU (1995) 7 NWLR (PT.407) 269.
Somewhere in this Judgment, I indicated that the 1st Respondent who is the key actor in the issue of the sale of the House in issue to both the Appellant and the second Respondent did not give any evidence nor called any witness. The position of the law is that the evidence of the Plaintiff as it relates to the part played by the 1st Respondent remained unchallenged and uncontroverted and ought to be accepted see ADEJUMO V. AYANTEGBE (1989) 3 NWLR. (PT.110) 417, BENDEL FEEDS AND FLOUR MILL LTD (2008) 7-12 SC. 151 at 187. Para 5-15. Further to this is that where evidence led on fact pleaded is admissible relevant and uncontroverted and uncontradicted nor discredited the Court can rely on it. See OBMIAMI BRICKS & STONE (NIGERIA) LIMITED V. AFRICAN CONTIENTAL BANK LTD. (1992) 3 NWLR PART 229, 260.
?What I am saying here is that there is nothing on the other side from the 1st Respondent to be weighed against the evidence of the Appellant on the transaction for the sale of the house in dispute by the 1st Respondent
41
to the Appellant for the sum of N800,000.00 in 1997.
Let me now consider the position of the law as it relates to Section 22 (1) and 26 of the Land Use Act L5 LFN 2004. For better appreciation of the provision, I herein under reproduce same.
SECTION 22 LAND USE ACT.
?It shall not be lawful for the holder of a statutory right of occupancy granted by the Government to alienate his right of occupancy or any part thereof by assignment, mortgage transfer or possession, sublease or otherwise however without the consent of the Governor first had and obtained.
SECTION 26.
?Any transaction or any instrument which purports to conter on or vest in any person any interest or right over land other than in accordance with the provisions of this act shall be null and void.
My simple understanding of this provision is that before any holder of statutory Certificate of Occupancy can alienate his right to another person he must first seek and obtain the consent of the Governor. Any transaction entered into which is not in compliance with the provision of Section 22 shall be null and void. ?It is on record that the
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Appellant purchased the property in issue from the 1st Respondent as owner of the properly in 1997 for the sum of N800,000.00 Exhibit ?A? is the agreement of the sale transaction between the Appellant and the 1st Respondent. This is not disputed by the 1st Respondent nor any if the Respondents. That time, the 1st Respondent surrendered his original Certificate of occupancy to the Appellant to evidence his ownership of the landed property. Further to this he gave the Appellant a copy of his application to the Governor for consent to alienate the said property in issue. From the evidence before the Court, it is ovious and revealed by the evidence of the 2nd and 3rd Defendant that there was no such application for consent in respect of the transaction between the Appellant and 1st Defendant. Curiously, and unknown to the Appellant, the 1st Respondent went into another deal of sale of the some property with the 2nd Respondent for the sum of N200,000.00 in the year 2004. This time he sought and obtained a letter of consent to alienate to the 2nd Respondent. Not this alone, he sworn to an affidavit that his Certificate of Occupancy No. BA/19379 issued
43
to him by the 3rd Respondent was lost and hence applied for another Certificate. I will like to note here that it is the same certificate which he surrendered to the Appellant when he sold the same property to the appellant in 1997 for the sum of N800,000.00 that he has gone to swear to an affidavit that the said Certificate is lost and obtained another Certificate from the 3rd Respondent so as to perfect his latest transaction of sale of the same house to the 2nd Respondent and which Certificate is now used to seal the mortgage transaction between the 2nd Respondent and the 4th Respondent. Now back to the provision of section of the land use Act vis-a-vis the transaction of the 1st Respondent on the said property in issue with the Appellant in 1997 on one part and that transaction between the 1st Respondent and the 2nd Respondent in 2004 on the other part. From the foregoing it is clear that the 1st Respondent went into and concluded a sale agreement of his property in 1997 to the Appellant and also in 2004 to the 2nd Respondent. The learned trial judge in refusing the claim of the Appellant said this; (See page 279 of the Record of Appeal)
44
?The Plaintiff has been caught up with the above provision. The said pleaded but in the claim. Since it has been registered are hereby expunged. And the said transaction is caught up by Section 22 (1) and 26 of the Land Use Act 1978. Exhibit A & B shall be expunged also for not being in conformity with the above cited section.”
For what ever the foregoing is supposed to mean, one thing I can figure out is that the Court is saying is that for the failure of Appellant to obtain consent and register the transaction, his agreement with the 1st Respondent for the sale of the properly in 1997 is expunged from Record.
It is clear from paragraph 36 (a) of the amended statement of claim of the Appellant that what he is claiming is that he has acquired equitable interest in the said property. For proper appreciation of the said claim, I herein under reproduce same;
Paragraph 36.
WHERE OF the Plaintiff is aggrieved and claim against the Defendant jointly and severally as follows;
A) A Declaration that the Plaintiff has acquired equitable interest in the said property i.e. Defendants house.” In my humble view and to
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say a little, I think the learned trial judge got the whole thing wrong. To me he failed to properly appreciate the fact of the case or palpably, he clearly understood but choosed to do what he did. It is very clear in the circumstance of the fact of this case that the 1st Respondent is a dubious and dishonest person. After selling the property to the Appellant in 1997. He decided not to pursue any of the dictates of Section 22 of the Land Use Act to perfect the transaction. Rather in 2004, he quickly applied for a Certificate of Occupancy from the 3rd Respondent while claiming that the original Certificate of occupancy issued to him was lost whereas he was the one who voluntarily gave the said original Certificate of Occupancy of the property to the Appellant. To me he deceived the Appellant that he was pursuing the letter of consent by the Governor when he gave him the copy of the application letter. Alas he did not pursue nor processed any application for the consent of the Governor to seal the transaction between him and the Appellant. To show his dubious intent, he swore to an affidavit that the original Certificate of occupancy issued to him was lost and
46
applied for a certified true copy of the Certificate for the same land to perfect the transaction between him and his brother, the 2nd Respondent and to further strengthen the mortgage application by the 2nd Respondent with the 4th Respondent. The combined effect of the foregoing is that there is a prima facie evidence of fraudulent intention and act in selling the same land at different time and price to different people. It is very clear that at the time he went into the contract of sale of the house with the 2nd Respondent he has no house to sell having regard to the earlier sale of the house to the Appellant in 1997 for the sum of N800,000.00. The said sale was evidence by Exhibit ?A?. Exhibit ?A? vest an equitable remedy in the Appellant as it relates to the house in issue. As long as Exhibit ?A? is still in existence, and valid the 1st Respondent cannot in law enter into any transaction with any other person in the world. Unless and until that sale is set aside. When the Appellant purportedly sold the house to the 2nd Respondent, he had no house as his own to sell. Rather he was selling the house already sold to and in
47
lawful possession of the Appellant. He cannot give what he did not have. Put in another word, you cannot put something upon nothing and expect it to stand ?SKENCONSULT (NIG) LTD V. UKEY (1981) 15 S.C. 6 BILANTE INTL LTD V. N.D.I.C (2014) ALL FWLR (PT.598) 804. At 825, MACFOY V. UAC (1962) A.C. 152, ONAYEMI V. IDOWU (2008) 9 NWLR (PT. 1092) 306, KALIO V. DANIEL KALIO (2005) 4 NWLR (PT.915) 305 at 324 ? 325. PARA H-A.
In this Appeal, it is clear that parties i.e. the Appellant and the 1st Respondent entered into the contract of sale of the said house as free individuals. Be that as it may, it is the responsibility of the 1st Respondent having regard to Section 22 of the Land Use Act and as the vendor and owner of the property to apply for the consent of the Governor to alienate the said property and vest ownership in the Appellant and not the other way round. The Appellant is not blame worthy for not securing a letter of consent because it is not his responsibility under Section 22 of the Land Use Act to seek and obtain the letter of consent to alienate the property which he did not have but purchased from the 1st Respondent, the
48
owner.
Again the learned trial Judge failed to appreciate this fact. In the case of IBRAHIM V. OBAJE (2019) 3 NWLR (PT. 1660) 389 at 394, decided by the apex Court it was held thus:
?The application of the various sections and provisions of the land use Act must be done with a view to the intendment of the drafters of the law, which is expressed often in the preamble.
It is not the intention of the legislature that Section 22 of the Land Use Act 1978 should limit and deny parties of their right to use and enjoy land and the fruit thereto in non-contentious transaction or alienation. The instant case is a transaction between individuals. (ABIOYE V. YAKUBU (1991) 5 NWLR (PT. 190) 130 (PP.413-414 PARAS H- A).
It is not the intendment of the legislature that Section 22 of the Land Use Act, on consent would limit and deny parties of their right to use and enjoy land and the fruit thereto in a non-contentious transaction or alienation.”
?The foregoing fortifies my view that the Act did not prohibit parties into entering into a sale agreement prior to the seeking and obtaining of the Governor?s consent. In the case
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at land, it is not in dispute by any of the parties and in particular the 1st Respondent that the Appellant purchased the property in issue covered by the Certificate of occupancy No. BA/19379 from the 1st Respondent in the year 1997. Many years before the surreptitious sale of the same property by the same vendor 1st Respondent to the 2nd Respondent in the year 2007. As I said before that second transaction for the sale of the same house to the 2nd Respondent by the 1st Respondent after the conclusion of a valid sale of the same property to the appellant is prima facie tainted with fraudulence. It was a dishonest transaction soiled in criminality. Again the learned trial judge refuse to see this but instead declared the sale of the property to the Appellant and the agreement of sale thereto as void and of no effect.
Having found that the sale of the property to the second Respondent is tainted with fraud and criminal tendencies, and that the Appellant has acquired subsisting and valid equitable interest in the said property in issue. The surreptitious and fraudulent sale transaction to the 2nd Respondent can not receive any legal backing. The sail ship
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conveying the sale transaction of the property in issue between the 1st and 2nd Respondent should not be allowed to land in the planet of the subsisting and valid concluded sale transaction of the property in 1997 between the 1st Respondent and the Appellant. I can now see why the 1st Respondent decided not to give any evidence nor call any witness. To say a little, I feel when he was stared in the face with the pleading and truthful evidence of the Appellant he became rattled and decided to remain silent.
Let me add, the declaration by the 1st Respondent that the original certificate of occupancy was lost knowing that he gave it to the Appellant consequent upon the conclusion of a valid sale agreement is also fraudulent and prima facie with criminal intention. The swearing of an affidavit to that effect is also criminal in nature and meant to deceive the 3rd and 4th Respondents. For the foregoing therefore, the transaction leading to the mortgage transaction between the 2nd Respondent and the 4th Respondent which is predicated on an illegal and void sale of the property between the 1st and 2nd Respondent also is invalid and should not be allowed
51
to stand.
In all, the failure of the learned trial Court to consider and properly evaluate the evidence before the Court in the light of the foregoing evidently shows that the learned trial judge misdirected itself when he came to the conclusion that the Appellant failed to prove its case against the Respondents and wrongfully dismiss same. To my mind, rather than for the Court to do justice it has manifested injustice to the Appellant. On that note, I resolve this issue against the Respondents and in favour of the Appellant.
Having concluded that the learned trial judge failed to properly evaluate the preponderant evidence of the Appellant before it, I consider it proper and justifiable to invoke the power of this Court under Order 20 Rule 11 of the Court of Appeal Rules and Section 15 of the Court of Appeal Act 2004, declare as follows.
1) That the Plaintiff has acquired a subsisting equitable interest in respect of the property covered by the Certificate of occupancy with registration number BA/19379.
?2) That the act of the 1st and 2nd Respondent is tanted in fraud and prima facie with criminal tendencies hence a
52
nullity.
3) The mortgage transaction between the 2nd and 4th Defendant is illegal null and void.
4) The sale transaction between the 1st and 2nd Respondent having been tanted in fraud is hereby set aside.
5) The Defendant and their agents and privies are hereby perpetually restrained from the property in issue covered by Certificate of occupancy No. BA/19379.
6) Order of specific performance is made mandating and compelling the 1st Respondent to conclude the transaction between him and the Appellant.
Finally, the Appeal is allowed and the Judgment of the High Court of Bauchi Sate delivered on the 19th day of March 2012 in suit No.BA/20/2008 is hereby set aside.
I award a cost of N100,000.00 (One Hundred Thousand Naira only) against the 1st Respondent (Alhaji Ibrahim Uba) and in favour of the Appellant.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the
53
conclusion reached therein, save on one issue.
This appeal arose out of a dispute over a landed property. In the course of the trial, the Appellant sought to tender the original of a Certificate of Occupancy in respect of the property and the lower Court rejected same in evidence on the ground that being a public document, only a certified true copy was admissible and not the original document. The lower Court placed reliance on the case of Lawani Vs Afani Continental Co. Nig Ltd (2002) 2 N WLR (Pt 752) 585. It must be conceded that there was a time in our jurisprudence when there was confusion on whether or not, under the provisions of the Evidence Act, the original of a public document was admissible in evidence without need for certification or that it was only a certified true copy of the public document that was admissible. The Supreme Court has, at least, over the last ten years sought to clear the confusion and has held that both the original copy, without certification, and the certified true copy of a public document are admissible in evidence under the Evidence Act – see the cases of Iteogu Vs Legal Practitioners Disciplinary Committee ?
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(2009) 17 NWLR (Pt 1171) 614, Goodwill & Trust Investment Ltd vs Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) 500, Peoples Democratic Party Vs Independent National Electoral Commission (2014) 17 NWLR (Pt 1437) 525, Emeka vs Chuba-lkpeazu (2017) 15 NWLR (Pt 1589) 345, Kassim vs State (2018) 4 (Pt 1608) 20, Anagbado vs Faruk (2018) LPELR 44909. This position represents the present state of the law. The lower Court was in clear error when it rejected the original of the Certificate of Occupancy tendered by the Appellant.
The facts of this case are pretty straight forward. The first Respondent sold his house, the property in dispute, to the Appellant in October 1997 for the sum of N800,000.00 and this was evidenced in writing in both English and Hausa languages and the documents were tendered as Exhibits A and A1. The first Respondent put the Appellant in possession of the property and handed to him the original of the Certificate of Occupancy covering the property and a copy of the Application for the Governor’s consent to the transaction. The Appellant had been living in the house since then. The first Respondent executed a deed of
55
assignment further evidencing the transaction in favour of the Appellant in 2007. In trying to register the deed of assignment, the Appellant discovered that on the 18th of January, 2002, the first Respondent had sworn to an affidavit of loss of the Certificate of Occupancy of the property and had applied for and obtained a certified true copy of the Certificate of Occupancy. It was discovered that the first Respondent thereafter sold the property to the second Respondent, his younger brother, and applied for and was granted permission to assign the property to the second Respondent on the 28th of January, 2004. It was further discovered that on the 29th of January, 2004, the second Respondent was granted permission to mortgage the property to the fourth Respondent for N 7 Mlillion. The Appellant thus commenced the present action to assert his ownership of the property.
From these facts, it is clear that by paying the purchase price of N800,000.00 and being in put in possession of the property in dispute, the Appellant became vested with the equitable title to the property in dispute and the title so acquired was capable of defeating subsequent
56
purchasers – Obijuru Vs Ozims (1985) 2 NWLR (Pt 6) 167, Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 N WLR (Pt 61) 556, Adesanya Vs Otuewu (1993) 1 NWLR (Pt 270) 414, Provost, Lagos State College of Education vs Edun (2004) 6 NWLR (Pt 870) 476, Yaro vs Arewa Construction Ltd (2007) 17 N WLR (Pt 1063) 333, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Ezenwa vs Oko (2008) 3 NWLR (Pt 1075) 610, West African Cotton Ltd vs Yankara (2008) 4 NWLR (Pt 1077) 323, Agboola vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375.
The title so acquired was not defeated by the provisions of Section 22 of the Land Use Act requiring the owner of a property covered by a Certificate of Occupancy to obtain the consent of the Governor to the alienation of the property. This is because there are two steps in the application of the provisions of Section 22 of the Land Use Act. The first stage is the agreement or contract stage. At this stage of entering into a contract for sale of land, no alienation takes place and this is up to the point of arriving at a binding contract and as such no consent of the Governor is required as a legal
57
prerequisite at this stage. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance or deed and because this stage invariably involves the vesting of title in the purchaser, consent of the Governor must, as a legal prerequisite, be sought and obtained – Awojugbagbe Light Industries Ltd Vs Chinukwe (1995) 4 NWLR (Pt 390) 379, Owoniboys Technical Services Ltd vs Union Bank of Nigeria Plc (2003) 15 NWLR (Pt 844) 545, Olowu Vs Building Stock Ltd (2010) 2 N WLR (Pt 1178) 310, Mustapha Vs Abubakar (2011) 3 NWLR (Pt 1233) 123. These two stages of a sale of land transaction were explained by Uwaifo, JSC in International ile Industries (Nig) Ltd vs Aderemi (1999) 8 NWLR (Pt 614) 268 at page 299 thus:
“The position of S. 22 of the Act is clearly this. A holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation
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of a binding contract of sale constituting an estate contract at the best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed culminating in vesting the said right in the ‘purchaser’, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S. 26 of the Act. In my view, it is necessary to bear these two stages clearly in mind. ”
In other words, it is not correct to say that failure to obtain the prior consent of the Governor before entering into contract of sale of property and executing a deed of assignment means that the assignment is null and void – Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 N WLR (Pt 834) 427, Omozeghian Vs Adjarho (2006) 4 NWLR (Pt 969) 33, Brossette Manufacturing Nig. Ltd vs Messrs Ola Ilemobola Ltd (2007) 14 NWLR (Pt 1053) 109, Mohammed Vs Abdulkadir (2008) 4 N WLR (Pt 1076) 1 11, Indeed, there must be a valid and subsisting contract for alienation of a right of occupancy in existence before the question of obtaining the
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consent of the Governor to the transaction can arise – Dahiru Vs Kamale (2005) 9 NWLR (Pt 929) 8, Pharmatek Industrial Projects Ltd vs Trade Bank Nigeria Plc (2009) 13 (Pt 1159) 577. There is no time limit for being at the contract stage because there is no time limit to the obtaining of consent of Governor to a transaction – Pharmatek Industrial Projects Ltd Vs Trade Bank Nigeria Plc supra.
The law is that it is the holder of the statutory right of occupancy who seeks to alienate his property that has the duty to seek and obtain the consent of the Governor to the transaction – Ugochukwu Vs Cooperative and Commerce Bank Ltd (1996) 6 N WLR (Pt 456) 524, Owoniboys Technical Services Ltd Vs Union Bank of Nigeria Plc (2003) 15 NWLR (Pt 844) 545, Sosan vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546, Agbabiaka vs Okojie (2004) 15 NWLR (Pt 897) 503, Union Bank of Nigeria Plc vs Astra Builders (WA) Ltd (2010) 5 NWLR (Pt 1186) 1. Where he fails to apply for consent, the law will not allow him to rely on his own wrongful act and contend that the sale or lease agreement or that the deed of mortgage is void and unenforceable as he
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will not be allowed to benefit from his own wrong doing – Oil Field Supply Center Vs Johnson (1987) 2 N WLR (Pt 58) 625, Sosan vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546, Hamidu vs Sahar Ventures Ltd (2004) 7 NWLR (Pt 873) 618, Agbabiaka vs Okojie (2004) 15 NWLR (Pt 897) 503, Brossette Manufacturing Nig. Ltd vs Messrs Ola Ilemobola Ltd (2007) 14 NWLR (Pt 1053) 109, Mohammed vs Abdulkadir (2008) 4 (Pt 1076) 111, Ibrahim vs Osunde (2009) 6 NWLR (Pt 1137) 382, Umaru vs Pam (2010) 2 (Pt 1178) 404, Saka vs Ijuh (2010) 4 NWLR (Pt 1184) 405.
By reason of the above, it is now an established principle of law that where a purchaser or lessee of a statutory right of occupancy in a property has paid the purchase price or the rents as the case may be and he is in possession of the property, he is deemed to possess an equitable interest in the property in the terms of his agreement which will become a legal interest on obtaining the consent of the Governor and that such equitable interest would sustain action for ownership of the property – Jaffar Vs Ladipo (1969) 1 All NLR 165, Omo-Bare Vs New Nigerian Bank Ltd (1986) 1 SC 77,
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Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt 834) 427 and Amadi Vs Nsirim (2004) 17 NWLR (Pt 901) 111, Eleran vs Aderonpe (2008) 11 NWLR (Pt 1097) 50, Olowu vs Building Stock Ltd (2010) 2 NWLR (Pt 1178) 310.
It is also clear from the facts of the case as stated above that as at 2004 when the first Respondent sought to sell the said property to the second Respondent, he no longer had the property to sell. The law is that where a piece of landed property or parcel of land has been sold to a party, there cannot be a later sale of the piece or parcel of land to another party because as at the time of the later sale, the vendor will have nothing in law to sell. Therefore, where two contesting parties trace their title in respect of the same piece of land to the same grantor, the later in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor, having successfully divested himself of title in respect of the piece of land in question by the first grant, would have nothing left to convey to a subsequent
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grantee under the principle of nemo dat quod non habet, as no one may convey what no longer belongs to him – Adelaja vs Fanoiki (1990) 2 NWLR (Pt 131) 127, Famuroti vs Agbeke (1991) 5 NWLR (Pt 189) 1, Anyaduba Vs Nigeria Renowned Trading Co (1992) 5 NWLR (Pt 243) 535, Tewogbade vs Obadina (1994) 4 NWLR (Pt 388) 326, Odusoga vs Ricketts (1997) 7 (Pt 511) 1, Dantsoho vs Mohammed (2003) 6 (Pt 817) 457 and Ibrahim Vs Mohammed (2003) 6 NWLR (Pt 817) 615, Daniel-Kalio Vs Daniel-Kalio (2005) 4 NWLR (Pt 915) 305, Ibrahim vs Osunde (2009) 6 NWLR (Pt 1137) 382, Omiyale vs Macaulay (2009) 7 NWLR (Pt 1141) 597.
Thus, the second Respondent purchased nothing in 2004 when he allegedly brought the property from the first Respondent. The fact that the first Respondent obtained consent to transfer the property to him was irrelevant and immaterial because the law is that a certificate of occupancy is neither the grant of nor title to the land in dispute – Usman vs Joda (1998) 13 NWLR (Pt 582) 374, Adole vs Gwar (2008) 11 (Pt 1099) 562, Edebiri vs Daniel (2009) 8 NWLR (Pt 1142) 15, Edohoeket vs Inyang (2010) 7 N WLR (Pt 1192) 25. And a certificate of occupancy
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obtained in respect of land which the holder cannot prove to be his is not worth the paper on which it is – Dzungwe Vs Gbishe (1985) 2 NWLR (Pt 8) 528, Adebiyi Vs Williams (1989) 1 NWLR (Pt 99) 611, Ofoeze vs Ogugua (1996) 6 NWLR (Pt 455) 451, Angbazo vs Sule (1996) 7 NWLR (Pt 461) 479, Gamboruma vs Borno (1997) 3 NWLR (Pt 495) 530, Madu vs Madu (2008) 6 NWLR (Pt 1083) 296, Okunowo vs Molajo (2011) 3 NWLR (Pt 1235) 434. In Macaulay vs Omiyale (1997) 4 NWLR (Pt 497) 94, Uwaifo, JCA (as he then was) said at page 150 C-E:
“The law does not therefore permit the mere issuance of a certificate of occupancy in respect of a parcel of land to a party to defeat the right of occupancy to that parcel of land vested in another party… The whole intendment of the Land Use Act in this regard is to ensure that a person to whom a certificate of occupancy is issued is truly entitled to it and that the certificate has not been granted in violation of a prior or existing right of occupancy of another. If it is in such violation, then it follows that the certificate will have no value to the person to whom it is issued.”
The second Respondent cannot also
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claim to be a bona fide purchaser for value without notice simply because when he conducted a search in the property file at the Lands Registry, the property was not shown to be encumbered. The second Respondent admitted in evidence that he was aware that the first Respondent had long ceased to reside in the property at 2004 when he sought to purchase same and that there were other persons living in the property. The evidence led showed that the Appellant was residing in the property at the time. A bona fide purchaser for value without notice is a person who purchased property for valuable consideration without notice of any prior right or title which if upheld will derogate from the title which he has purported to acquire – Best (Nig) Limited Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt 1239) 95. When a person is said to be a bona fide purchaser for value without notice, such notice may be actual or constructive and clearly it refers to notice of matters which might affect the efficacy of the title of the vendor – Jaffar Vs Ladipo (1969) 1 All NLR 165, Bank of the North Ltd vs Bello (2000) 7 NWLR (Pt 664) 244, Ageh vs Tortya (2003) 6 (Pt 816)
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385 and Jiwul vs Dimlong (2003) 9 (Pt 824) 154, Ohiaeri vs Yussuf (2009) 6 NWLR (Pt 1137) 207.
In Animashaun Vs Olojo (1990) 6 NWLR (Pt 154) 111, the Supreme Court stated that it is only a subsequent bona fide purchaser of the legal estate for value without notice that can take priority over someone who had acquired a prior equitable interest over the same property and that it is the absence of notice of the prior equitable interest that provides a haven which serves to protect the interest of the subsequent purchaser from the eroding forces of knowledge of the prior purchaser’s equity. Thus, in Clay Industries (Nig) Ltd Vs Aina (1997) 8 N WLR (Pt 516) 208, the Supreme Court held that in that case, the respondents could not claim to be purchasers for value without notice of the appellant’s interest in the land in dispute as they found the appellant already in possession of the land working thereon when they purchased same from their vendors. Similarly, in Briggs Vs The Chief Lands Officer of Rivers State of Nigeria (2005) 12 N WLR (Pt 938) 59, the Supreme Court stated that a purchaser of a legal estate for value would be deemed to have actual or
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constructive notice of an equitable interest in land where there was a building occupied by tenants on the land at the time he acquired interest therein.
On the proved facts of this case, the Appellant is the proper person entitled to the property in dispute. I am thus in full agreement with the lead judgment that there is merit in the appeal and I too hereby allow it. I set aside the judgment of the High Court of Bauchi State delivered by Honorable Justice A. M. Liman on the 19th of March, 2012 in Suit No BA/20/2008. I abide by the consequential orders and the order on cost in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I read before now the lead judgment just delivered by my learned brother, MUDASHIRU NASIRU ONYANGI, JCA. I agree with the comprehensive judgment which I adopt as mine. I abide by the order as to costs.
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Appearances:
I. D. Buzi, Esq.For Appellant(s)
Ben Ogbuchi with him, E. F. Aghedo Esq.
A. H. Umar, Esq. (CSC. Ministry of Justice Bauchi Learned Counsel for the 3rd Respondent).
A. M. Wase for the 4th Respondent.
2nd Respondent not represented.For Respondent(s)
Appearances
I. D. Buzi, Esq.For Appellant
AND
Ben Ogbuchi with him, E. F. Aghedo Esq.
A. H. Umar, Esq. (CSC. Ministry of Justice Bauchi Learned Counsel for the 3rd Respondent).
A. M. Wase for the 4th Respondent.
2nd Respondent not represented.For Respondent
