UNION BANK PLC. v. KENGRAPHICS PRODUCTS LTD
(2021)LCN/15800(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 31, 2021
CA/A/199/2016
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
UNION BANK PLC. APPELANT(S)
And
KENGRAPHICS PRODUCTS LIMITED RESPONDENT(S)
RATIO
THE EFFECT OF FAILURE TO REGISTER A REGISTRABLE INSTRUMENT WITHIN THE PROVISIONS OF SECTION 10 OF THE LAND USE ACT
It is true that the effect of failure to register a registrable instrument within the provisions of Section 10 of the Land Use Act and Section 15 of the Land Instruments Registration Act or Law makes the instrument “unpleadable” and inadmissible. See Muonweokwu v. Egbunike (1959) 3 ENLR 53 at 54, (1962) 1 SCNLR 97; Arimoro v. Oni (1972) 2 ULR 1853 at 189; Ossai v. Nwajide (1974) NSCC 156; (1975) 4 SC 207; Ezeogu v. Onwuchekwa (1997) 4 NWLR (Pt. 502) 689; Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569; Omoni v. Big Tom (1991) 6 NWLR (Pt. 195) 93 and Abdulkareem v. lhiovi (2007) vol. II WRN 40 at 54. PER ADUMIEN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the defendant in Suit No. FCT/HC/CV/4671/2013 instituted in the High Court of the Federal Capital Territory, Abuja wherein the respondent, as plaintiff, claimed as follows:
“1. An order of this Honourable Court directing the Defendant, its agents or privies to vacate the premises known as Bay 1 and Bay 2 comprising two floors and three floors respectively together appurtenances known as Building A situate at No. 32 Aguiyi Ironsi Street, Abuja formerly Plot 2793 Aguiyi Ironsi Street, Maitama, Abuja.
2. An Order of this Court directing the defendants to pay the sum of N49,500,050.00 (Forty Nine Million, Five Hundred Thousand and Fifty Naira) only as the cost of restoration of the building to its original state.
3. A further order of the Court directing the defendant to pay to the plaintiff the sum of N40,600,000.00 (Forty Million, Six Hundred Thousand Naira) only per annum being damages for use and occupation of the subject premises from the 1st day of June, 2013 until possession is delivered to the Plaintiff.
4. The sum of N6,000,000.00 (Six Million Naira) being the cost of instituting and engaging solicitors to prosecute this action.”
After taking evidence of the parties and the addresses of their learned counsel, the trial Court delivered a reserved judgment on the 18th day of September, 2015 whereby it granted the following relief in favour of the respondent:
“1. The Defendant is ordered to pay the sum of N49,500,050.00 as the cost of restoration of the premises known as Bay 1 and Bay 2 comprising two floors and three floors respectively, commercial premises at No. 32 Aguiyi Ironsi Street, Abuja formerly Plot 2793 Aguiyi Ironsi Street, Maitama, Abuja to their original state from banking premises and hall to which they were converted by the Defendant.
2. The Defendant is ordered to pay to the Plaintiff the sum of N26,250,000.00 only being rent accrued to the Plaintiff for the use and occupation of the premises from the 1st of June, 2013 to July, 2014 respectively 1 year and 2 months.”
The appellant, being dissatisfied with the decision of the trial Court, filed a notice of appeal containing 3 (three) grounds.
In his brief filed on 09/02/2018, learned counsel for the appellant formulated the following issues for determination:
“1. Whether the trial judge was right when it awarded the sum of N49,500,000 as cost of restoration of the building to its previous state when there is no evidence as to the state of the building prior to the tenancy agreement grounds 1 & 2.
2. Whether the learned trial judge was right when it used and relied on inadmissible evidence ground 3.”
On behalf of the respondent, learned counsel distilled two issues for determination in his brief filed on 21/03/2018:-
“1. Whether the trial Judge was right when it awarded the sum of N49,500,000.00 (Forty Nine Million, Five Hundred Thousand Naira Only) as cost of restoration of the building to its previous state.
2. Whether the trial Judge was right when it admitted and relied on Exhibit X (i.e.) the Deed of Sublease.”
The issues identified by the parties are essentially the same, although couched differently.
On issue 1, learned counsel for the appellant referred to Section 131 (1) & (2) of the Evidence Act, 2011 and the cases of Abdulkareem v. Lagos State Government (2006) 5 NWLR (Pt. 1535) 177 and Omiyale v. Wema Bank Plc (2017) 13 NWLR (Pt. 1582) 300, argued that “the law is settled that he who asserts must prove”. Counsel then stated as follows:
“The case of the plaintiff at the Lower Court was that the parties entered into a lease agreement and that in the lease agreement, the parties agreed that upon the determination of the agreement, the appellant shall revert the building to where it was. The appellant on record stated that the appellant was not disputing same but that the respondent should provide the plan to be reverted prior to the agreement before same can be carried out. The respondents stated that there is evidence to show that the building was an open hall before it was converted into a banking hall but stated that there is no such evidence before the Court. The witness of the appellant stated in evidence that the appellant was willing to revert the lease premise on the condition that the respondent should avail them evidence of the premises prior to how it was leased and the approved building plan prior to the lease which was not forthcoming. The trial Court was in clear error when it entered judgment against the appellant in the absence of the evidence of the premises before lease and also the approved building plan of the premises which would have shown how the property was before the Lease.”
In urging the Court to resolve issue 1 in favour of the appellant, Zaidu Abdul El-Idde, Esq., submitted inter alia, as follows:
“The respondent’s failure to proof (sic) the existence of the nature of the building prior to the leasing coupled with failure to provide the approved building plan of the property as it was built makes the judgment of the Court to be patently wrong as there is no evidence before the Court upon which to act and the Court speculated on evidence not before it.”
On issue 2, learned counsel relied on Section 15 of the Land Registration Act, Cap. 515 of the Laws of the Federation Act, and Comm. L. & H., Kwara State v. Atanda (2007) 2 NWLR (Pt. 1018) 360 and contended that since Exhibit 1 was not registered, it was inadmissible and the trial Court wrongly used it in arriving at its decision.
Relying on Section 251 of the Evidence Act and the case of Dunnalin Inv. Ltd. v. BGL Plc. (2016) 18 NWLR (Pt. 1544) 339, learned counsel urged the Court to expunge Exhibit 1 for it was wrongly admitted and “to set aside the judgment” of the trial Court.
In his response, I. E. Uzuegbu, Esq., learned counsel for the respondent submitted that “where a claim is not defended, it is taken that the other party has no defence”. After referring to paragraph 27 of the respondent’s statement of claim, paragraph 6 of the witness statement on oath of PW3 and the case of Consolidated Res Limited v. Abofar Nigeria Limited (2007) 6 NWLR (Pt. 1030) 221 and Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1 and argued that the respondent discharged its burden of proof, on the balance of probabilities, as required by Section 134 of the Evidence Act.
On Issue 2, learned counsel contended that:
“The deed of sub-lease was merely a document granting a sub-lease interest for 3 years to the Appellant and did not transfer any title to the Appellant. It is only documents that transfer title that are expected to be registered under Section 15 of the Land Registration Act, Lease for 3 years do not require registration under that particular Act.”
It was further argued that the non-registration of the deed of sub-lease did not have any negative effect on the respondent’s right and in support of this argument he cited the case of Adesegun Ogunsanya v. Skye Bank Plc. (2013) LPELR – 20555 (CA).
It is on record that learned counsel for the appellant filed a reply brief on 06/04/2018. I have taken the arguments in the appellant’s reply brief into consideration.
In granting the disputed monetary award in favour of the respondent, the trial Court stated in its judgment, on pages 273 to 274 of the record of appeal, inter alia, as follows:
“Having established responsibility of the Defendant for restoration of the premises and it having failed to do so, the Plaintiff has a responsibility to obtain estimates for the work to be done.
In the absence of the Defendant taking up its responsibility, the plaintiff proceeded to obtain an expert’s opinion of PW3 who tendered Z1. It is instructive to note that the Defendant did not in any positive way contradict or challenge the estimate contained in Z1 either by calling another expert in the field or by credible evidence debunking the content of Exhibit Z1.” The above finding by the lower Court was not appealed against by the appellant. The law deems such a finding to be true and correct. See Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Adeyemi v. Olakunrin (1999) 14 NWLR (Pt. 638) 104 and Adejumo v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252.
Since the trial Court found that the appellant had a responsibility, as established by the evidence before it, to restore the respondent’s premises but failed to do so, the respondent having taken up the responsibility by engaging an expert to prepare the estimates for the restoration, and which estimates were even submitted to the appellant long before the action was commenced and the appellant having not disproved the estimates, there is no basis for the Court to disturb the finding and award made by the lower Court.
It is true that the effect of failure to register a registrable instrument within the provisions of Section 10 of the Land Use Act and Section 15 of the Land Instruments Registration Act or Law makes the instrument “unpleadable” and inadmissible. See Muonweokwu v. Egbunike (1959) 3 ENLR 53 at 54, (1962) 1 SCNLR 97; Arimoro v. Oni (1972) 2 ULR 1853 at 189; Ossai v. Nwajide (1974) NSCC 156; (1975) 4 SC 207; Ezeogu v. Onwuchekwa (1997) 4 NWLR (Pt. 502) 689; Ole v. Ekede (1991) 4 NWLR (Pt. 187) 569; Omoni v. Big Tom (1991) 6 NWLR (Pt. 195) 93 and Abdulkareem v. lhiovi (2007) vol. II WRN 40 at 54.
In this case, the exhibits tendered before the trial Court were stated in the Court’s judgment as Exhibits “A” to “Z1” see pages 259, 260 and 262 of the record of appeal. The appellant, several times, referred the document it is complaining about as Exhibit 1. I have gone through the record of appeal and no “Exhibit 1” was tendered by the respondent nor was such an exhibit admitted by the trial Court.
However, learned counsel for the respondent in his response stated the document the appellant is complaining about is “the Deed of sub-lease which is “Exhibit X”. If the respondent’s assertion is correct, then one has to examine Exhibit “X”.
Upon a thorough examination, Exhibit “X” is no more than tenancy agreement between the parties and it is for a fixed term of 3 (three) years. I do not think that this document qualifies as an instrument under the Land Use Instruments Registration Law.
Assuming, without conceding, that Exhibit “X” is a registrable instrument and it ought not to have been admitted in evidence, there is no dispute as to the fact that the appellant was a tenant of the respondent for at least three years and Exhibit “X” is the basis for the tenancy – at least at equity.
Without further ado, the live issues are hereby resolved against the appellant and in favour of the respondent.
The appeal fails and it is hereby dismissed.
The judgment of the trial Court is hereby affirmed.
The sum of N150,000.00 (One Hundred and Fifty Thousand Naira Only) is hereby awarded as costs in favour of the respondent and against the appellant.
PETER OLABISI IGE, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had a preview of the judgment delivered by my learned brother Moore Aseimo Abraham Adumein, JCA.
I agree with the reasoning and conclusion reached therein.
I therefore dismiss the appeal and affirm the judgment of the Court below.
I make no order as to costs.
Appearances:
Zaidu Abdullahi, Esq. For Appellant(s)
Amaka Eke, Esq. For Respondent(s)