UBA v. NWAWOLUE & ORS
(2020)LCN/15618(CA)
In the Court of Appeal
(AWKA JUDICIAL DIVISION)
On Thursday, November 19, 2020
CA/AW/280/2013
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
MR TONY UBA APPELANT(S)
And
1. MR. ONOCHIE NWAWOLUE 2. MR. CHIKE NWAWOLUE 3. GLOBACOM NIGERIA LIMITED RESPONDENT(S)
RATIO:
THE ADMISSIBILITY OF RELEVANT DOCUMENTS
It is my view that Exhibits A and B constitute documents affecting interest in land by virtue of the provisions of the Land Instrument (Preparation and Registration) Law Cap 75 Laws of Anambra State of Nigeria 1991.
The Court below was right to have expunged Exhibits A and B, as they were registrable instruments which affected and pertained to interest in land. They not having been registered was detrimental to the Appellants case. RITA NOSAKHERE PEMU,J.C.A
THE INADMISSIBILITY OF DOCUMENTS
Yes, the yardstick in law for admissibility of documents is relevance. But the weight to be accorded those documents is another matter – MOGAJI V ODOFIN (1978)4 SC. 91, FELIX ANYAKORA V NWAFOR OBIAKOR (1990)2 NWLR (Pt 30)52 @ 62
Where a document is tendered and admitted, it can be expunged if it was wrongly admitted – A document which is inadmissible is inadmissible for all purposes. Same cannot be admissible simply because it has been wrongly admitted; or admitted by consent or without objection – YAYA V MOGOGA 12 WACA 132; ALAO V AKANO 22 NSCQR 880. A Court has the inherent powers to expunge an inadmissible document wrongly admitted from its records. – BROSSETTE NIGERIA V ILEMBOLA 20 NSCQR 1169. RITA NOSAKHARE PEMU,J.C.A
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the Anambra State High Court holden in Onitsha, delivered on the 10th of April 2013.
SYNOPSIS OF FACTS
At the Court below, the Appellant had sued the Respondents claiming as follows:
1) A Declaration that he is the person entitled to a grant of Statutory Right of Occupancy in respect of the Plot S. 58, Otakpo Layout Onitsha.
2) An Injunction, restraining the defendants, their agents, servants and privies from further attempt to dispossess him of his land. – Paragraph 13 of the Amended Statement of Claim filed on the 1st of December 2008.
The 1st Defendant filed no Statement of Defence, but the 2nd and 3rd Defendants did. After the trial, the Court below found for the Respondent.
The Appellant is dissatisfied with the judgment and filed an original Notice of Appeal on the 30th of April 2013. The Notice of Appeal was deemed amended on the 8th of July 2020.
The Appellant is an Onitsha based businessman. The Respondents are members of the Umuosodi Family of Onitsha, but sued in their personal capacities.
The 4th Respondent is a telecommunications Company registered under the laws of the Federal Republic of Nigeria to carry a telecommunications business in Nigeria.
The land, the subject matter of this appeal is situate at Plot S. 58 situate at Umuosodi Family layout, Otakpo, Onitsha.
The Appellant acquired title and possession of the land from Mr. Daniel Chukwuma Metuh of Nkem in 1990 by Customary law transaction later reduced to writing in 2003.
Mr. Daniel had in an earlier customary law transaction acquired title in the said Plot from one Bobo Bosah – Plot S.59, who was the previous head of Umuosodi Family of Umudei village Onitsha.
After the hearing of the case, on the 10th of April 2013, judgment was delivered, where the Court below Suo motu reopened the issue of the admissibility of Exhibits “A” and “B”. The Court below found that they were registrable documents and expunge them from the Court’s record.
The Appellants case was dismissed. The Appellants filed his Amended brief of Argument on the 20th of March, 2020. It is settled by C. C. Okeke, Esq. The 1st and 2nd Respondents filed their amended brief of argument on the 24th of March, 2020. It is settled by Ikem Nwanegbo, Esq.
Noteworthy is that the Original first Respondent died and his name was struck out by this Court. That made Mr. Onochie Nwanolue and Chike Nwanolue the 1st and 2nd Respondents respectively.
Amended Reply brief was filed on the 6th of April 2020. The Appellant distilled four (4) issues for determination – They are:
1) Whether Exhibit A and B are registrable instrument as to justify their being expunged from the records of the trial Court (for non-registration) after they had been admitted in evidence without objection?
2) Whether the Learned Trial Court Judge was right when he suo motu raised the issue that Exhibits A and B were registrable instrument and proceeded to determine same without calling and/or inviting the parties to address him on the issue.
3) Whether the learned trial Court was right in its finding that the Plaintiff did not plead and prove his root of title in the case?
4) Whether the judgment of the learned Trial Court was not against the weight of evidence?
The Amended 1st and 2nd Respondents brief of Argument also had in it four issues distilled for determination which are:
1) Whether Grounds 5 and 6 of the Notice and Grounds of Appeal are competent.
2) Whether Exhibit “A” and “B” are documents affecting interest in land, and are therefore registrable.
3) Whether in the circumstance of the above case, the Honourable Court has powers to strike out Exhibits A and B being registrable documents wrongly admittedly by the same Court.
4) Whether the Plaintiff pleaded or proved his root of title.
The 4th Respondent filed no brief of argument.
On the 16th of September 2020, learned Counsel for the 1st and 2nd Respondents adopted their respective briefs of argument.
Noteworthy is that the 1st and 2nd Respondents failed to notify the Court on the date of hearing of the Appeal, that they had a Preliminary objection. It is therefore deemed that they had abandoned same. The issue for determination proffered by the parties seem to be the same. I shall determine this appeal based on the Appellants issues for determination.
ISSUE NOS 1 AND 2
Arguing Issues 1 and 2 together, learned counsel for the Appellant submits that the Court below failed to take into account the age long principle of law as follows:
“In determining whether a document presented before it is an instrument or a memorandum, the Court will look at the contents of the document and determine what the document is supposed to achieve. If the transfer of the right or title to the land is effected by the document, it is an instrument but if it is the evidence of some transaction future or past, the document is a memorandum – UZOEGWU V IFEKANDU (2001)17 NWLR (Pt 741) at 71-72; GBINIJE V ODJI (2011).
He submits that if the Court below had perused Exhibits A and B properly, it would have seen that title to the land did not pass through the documents but that they are evidence of customary law transactions that had taken place in the past.
Submits that Exhibits A and B are not instruments, but memoranda.
Submits that extracts from Exhibits “A” and “B” show that they are evidence of customary law transactions that have taken place in the past. They do not fall within the meaning of an instrument as defined by Section 2 of the Land instruments (Preparation and Registration) Law Cap. 75 of the Revised Laws of Anambra State of Nigeria 1991.
Submits that the admission of Exhibit A and B in evidence (without objection) was proper as they do not amount to instruments and therefore needed not to be registered in consonance with the provision of Section 22 of the Land instrument (Preparation and Registration) Law. Citing IBRAHIM V OSUNDE (2003) 2 NWLR (Pt 804) 241 @ 250 and OLANREWAJU V OGUNLEYE (1997)2 NWLR (Pt 485)12, he submits that Exhibits “A” and “B” were properly pleaded, properly given in evidence (without objection) and validly admitted in evidence. That
“Where a document which does not fall into any of the categories set out in the definition of land instrument under the land instrument Registration Law is admitted in evidence without objection, the issue of admissibility cannot be re-opened”.
That the Court below was wrong to have re-opened the case. It did not refer to the parties before proceeding to expunge Exhibits “A” and “B” from the Courts renewal.
Submits that the Supreme Court cases of BROSSETTE MANUFACTURING NIG. V OLA ILEMOBOLA LTD (2007) All FWLR (Pt 379)1367-1368 and NSITEFMB V KLIFCO NIG LTD (2010) 13 NWLR (Pt 1211) 307, are not on all fours with the present case.
He submits that the principle in the said cases is applicable to a situation where a document was wrongly admitted in evidence.
He submits the procedure adopted by the Court below falls short of the requirements of the law and was indeed an infringement of the appellant’s right to fair hearing.
ISSUE NO 3
The Appellant submits that the law is trite that for a Plaintiff to succeed in a land case of this nature, he has to plead and prove his root of title in any of these five ways: –
a) By traditional history
b) By production of document of title
c) By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership;
d) By acts of long possession and enjoyment of the land
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute – IDUNDUN V OKUMAGBA (1976) 9 – 10. S.C 227; UZOCHUKWU Vs ERI (1997)7 NWLR (Pt 577)535.
Submits that at the trial, the appellant testified in line with his pleadings and tendered Exhibits “A” and “B” respectively and same was admitted without objection. However,the Court below erred when it expunged same from the Court Record. That there is no contrary evidence from the defendants or from any member of Umuosodi family that Bobo Bosah was not the rightful owner and in lawful possession of the land adjacent to the one in dispute (Plot 59) which he later transferred to D.C. Metuh. PW4, who is in full and effective possession of the said adjacent Plot (Plot 59). He traced his root of title to the same Bobo Bosah said clearly that he has never been challenged by anyone of his lawful occupation of the land.
Submits that PW1 testified as a boundary witness, who is better qualified to testify in a customary title – Citing SHOSHAI GAMBO Vs ZIN DUL TURDAM (1993)6 NWLR (Pt 300)500 @ 509.
Urges Court to hold that the appellant duly pleaded and proved that his predecessors-in-title were the owners and in full and effective possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
He submits that the event of 13/2/2003 referred to in Paragraph 5 of the Amended Statement of Claim relates to the reducing down in writing of a transaction that took place in the past.
ISSUE NO 4
Arguing this issue the Appellant submits that the judgment of the Court below is against the weight of evidence, adduced at the trial. That if the Court below had duly evaluated the totality of the evidence adduced before it and ascribed proper probative value to them, it would have reached a different decision in the case.
ISSUES NO 1 & 2 (RESOLUTION THEREOF)
A painstaking perusal of Exhibits A and B show that they are memoranda. This is because Exhibit “A” though commences with the term “This memorandum of customary sale of land” there is the need to read the contents holistically in order to appreciate whether it contains an instrument or a memorandum.
Exhibit “A” dated 13th February, 2003 does not transfer any title but shows that a deed of acknowledgment of the transfers of title was executed on the 16th of January,1990. It is between David Metuh and the Appellant. In its addendum.
It says thus:
“That the transferor as the beneficial owner in possession had earlier under this Nnewi native law and custom absolutely and irrevocably transferred the property (more particularly described in paragraph 1 hereinabove) to the transferee who has since and thereby become its true owner in possession and the person entitled to the right or certificate of occupancy in respect thereof”
The transferor is Daniel Chukwume Metuh. The transferee is the Appellant.
Exhibit “B” is deed of acknowledgment. It is dated 16th of January 1990. The acknowledger in this deed had earlier on transferred interest in Plots 58 and 59 under the Nnewi native law and custom to the Appellant, prior to the execution of the deed of acknowledgment which is reflected in the recital to Exhibit “B” – Paragraph 3. It is between David Metuh and Bobo Bosah.
“The acknowledgee now desirous of having a documentary representation of the conveyance to him aforementioned as requested for the execution of this deed.”
The claim the subject matter of this appeal is reflected in Paragraph 13 of the Amended Statement of Claim. I shall reproduce same verbatim.
“WHEREFORE the Plaintiff claims from the Defendants jointly and severally as follows:
a) A Declaration that the (Sic) is the person entitled to a grant of statutory right of occupancy in respect of the said Plot S58 Otakpo layout, Onitsha.
b) An injunction restraining the Defendants, their agents, servants and privies from further attempting to dispossesses him of his land”. – Page 64 of the Record of Appeal.
In a claim for Declaration of Title, the Plaintiff/Claimant has the burden of proving his case by credible and direct evidence. Paragraphs 3 and 4 of the further amended Statement of Claim is instructive. I shall reproduce same verbatim:
PARAGRAPH 3
“On 16/1/90 the Umuosodi family through its Chairman Mr. Bobo Bosah sold Plots S58 and S59 to Mr. Daniel Chukwume Metuh for valuable consideration and the document of transfer will be founded upon at the trial of this case.
PARAGRAPH 4
On 18/2/90, as was the practice, the said Chairman confirmed in writing the said transfer to enable the said purchaser enter into possession of the said property after performing all the rites required for a customary handing over of the land . . .” Page 63 of the Record of Appeal
In Paragraph 3, the document of transfer referred to by the Appellant is Exhibited B – deed of acknowledgment. It is noteworthy that Exhibit B bears the date 16th January 1990, the date they said the land was transferred to Daniel Chukwume Metuh.
No date was stated in Exhibit A, and noteworthy is that nowhere in the pleadings is it stated when the actual transaction between Bobo Bosah and Daniel Metuh took place aside that can be gleaned from Paragraph 3 of the Amended Statement of Claim. The actual date of the alleged customary conveyance is shrouded in secrecy.
If the property was transferred according to the Onitsha law and custom who were the witnesses and when was it transferred? How did Metuh get his title? From the pleadings of the Plaintiff, it is clear that Exhibit B qualifies as an INSTRUMENT and not a MEMORANDUM, a document which is registrable. Exhibit “A” above is an instrument because it is evidence of transfer between Metuh and the Appellant.
In Paragraph 5 of the Amended Statement of Claim it says
“On 13/2/03, the said D.C Metuh lawfully transferred Plot S 58 to the Plaintiff, for a valuable consideration by virtue of memorandum of transfer – Exhibit A, dated 13/2/03, …”.
Metuh got title through Exhibit “A” To say that the documents amounted to memoranda is misconceived. The parties to the agreements intended to issue Exhibits A and B as registrable instruments.
The 1st and 2nd Respondents had argued (rightly in my view) that no other fact or evidence can be introduced or pleaded to vary the facts pleaded in Paragraph 5 of the Amended Statement of Claim (hereinbefore reproduced).
The two documents – Exhibits A and B were pleaded as title documents with respect to the land. They were not pleaded as purchase receipts.
These documents were the only documents which the Appellant said he would rely on at the hearing – ONAMADE V ACB (1997)1 NWLR (Pt 480)123 at 145c-d. NGIGE V OBI (2006)14 NWLR. (Pt 999) Pg 1 @ 58. It is my view that Exhibits A and B constitute documents affecting interest in land by virtue of the provisions of the Land Instrument (Preparation and Registration) Law Cap 75 Laws of Anambra State of Nigeria 1991.
The Court below was right to have expunged Exhibits A and B, as they were registrable instruments which affected and pertained to interest in land. They not having been registered was detrimental to the Appellants case.
Yes, the yardstick in law for admissibility of documents is relevance. But the weight to be accorded those documents is another matter – MOGAJI V ODOFIN (1978)4 SC. 91, FELIX ANYAKORA V NWAFOR OBIAKOR (1990)2 NWLR (Pt 30)52 @ 62.
Where a document is tendered and admitted, it can be expunged if it was wrongly admitted –
A document which is inadmissible is inadmissible for all purposes. Same cannot be admissible simply because it has been wrongly admitted; or admitted by consent or without objection – YAYA V MOGOGA 12 WACA 132; ALAO V AKANO 22 NSCQR 880.
A Court has the inherent powers to expunge an inadmissible document wrongly admitted from its records. – BROSSETTE NIGERIA V ILEMBOLA 20 NSCQR 1169.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 3
The Appellant had attempted to prove his root of title by document of title – Exhibits A and B.
The Court below did say that the Plaintiff/Appellant traced his title to 16th of January, 1990 grant of Umuosodi Family through its Chairman, Mr. Bobo Bosah of Plot S 58 and S 59 to Mr. Daniel Chukwumeh Metuh for valuable consideration – Paragraph 3 of the Plaintiff Amended Statement of Claim.
Let me reproduce the reasoning of the Court below which I find tenable.
“Exhibit C tendered by the Plaintiff in proof of his case seems to contradict the Plaintiff’s case as pleaded. Exhibit C is a receipt showing an acknowledgement of receipt of the sum of N22,000.00 from Daniel Chukwuma Metuh by Aukalla Bobo Bosah. In Exhibit C, it is shown that Bobo Bosah acknowledged money “paid to me in respect of all my proprietary interest in the piece of land known as and called Plot 58 and 59 situate and being at 33 Otakpo Layout Onitsha …”. Exhibit C therefore shows that Bobo Bosah never sold the plots on behalf of Umuosodi family but for himself.
Being that Exhibit C shows that Bobo Bosah sold the plot in dispute in his personal capacity as his personal property, it therefore contradicts the plaintiff’s pleading in Paragraph 3 of his Amended Statement of Claim and Paragraph 3 of PW1’s evidence. As found above this contradictory evidence left the plaintiff’s evidence unreliable and incredible.
Apart from the fact that it not the case of the plaintiff as seen in paragraph 3 of his Amended Statement of Claim that Bobo Bosah brought the land from Umuosodi family which both parties agreed are the original owners of the land in dispute, there is no evidence adduced by the plaintiff to show how Bobo Bosah got the property in dispute from Umuosodi family to justify his issuance of Exhibit C in his personal capacity”.
The Court below was therefore right to have held as it did that the Appellant fell short of his proof of his title to the land in dispute.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 4
The issue whether the judgment of the trial Court is against the weight of evidence has to do with facts. The Appellant has been unable to establish how the Court below abdicated its duty of evaluating and ascribing proper probative value to the evidence adduced before it.
As observed in the resolution of issues 1 and 2, the Court below was right to have expunged Exhibits A and B, which the Appellant relies on as his root of title, but which he was unable to establish. The expunging of Exhibits A and B does not amount to the Court below reopening the issue of the admissibility of Exhibits A and B.
The dictates of law made the Court below expunge those documents as it did. The Court below had carefully appraised the evidence before it, before reaching its conclusion after ascribing the relevant probative value to it.
Apart from the contradictory evidence put forth by the Appellant as to how the property passed to him, which the Court did not believe, the fact that Exhibits A and B, were registrable documents, and that they were not registered, the Court below was right to have expunged them and gave reasons for his decision.
The Court below did not rely on Exhibits D, E, G and 11 in dismissing the case. He struck out Exhibits A and B Exhibit C tendered by the Plaintiff in support of his case is a mere receipt evidencing payment of N22,000 (Twenty-Two Thousand Naira) as consideration from Daniel Chukwume Metuh to one Bobo Bosah.
The Court below was duty bound to make findings on material and important issues of facts. But where an appellate Court finds that the Court has brushed aside such material and important issues of facts, it can interfere. I see no reason to interfere with the findings of the Court below.
This issue is resolved in favour of the Respondents and against the Appellant. The Appeal fails and same is hereby dismissed.
The judgment of the High Court of Justice sitting in Onitsha in Suit No 0/134/2008 TONY UBA V GEORGE ADUAH & ORS delivered on the 10th of April 2013 is hereby affirmed. N50,000 costs in favour of the Respondents.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother R. N. PEMU, JCA.
I agree that the appeal be dismissed and the Judgment of the trial Court affirmed for the more detailed reasons contained in the lead Judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
Appearances:
C. C. OKEKE, ESQ. For Appellant(s)
IKEM NWANEGBO, ESQ. For Respondent(s)