Raphael Waka Ogbimi V Niger Construction Ltd (2006)
LAWGLOBAL HUB Lead Judgment Report
ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin division in Appeal No. CA/B/28/97 delivered on 4/4/2001 in which it set aside the judgment of the trial court delivered on 22nd September, 1995 in suit No. S/102/91. When the appeal came up for hearing on 12/1/06 both counsel, though served were absent without explanation. The appeal was therefore taken as argued on the briefs already filed in accordance with the rules of this court.
By a writ of summons filed on 14/11/91 the appellant, as plaintiff claimed damages against the respondent for trespass in that the respondent, without appellant’s authority or consent broke and entered the appellant’s land along Benin/Warri Express Road, Amukpe town and excavated and carried away there from laterite. He claimed special damages amounting to N764,451.25 and N235,548.49 as general damages.
The case of the appellant is that in January 1978, the Amukpe Community who are the original owners of a large piece or parcel of land, gave a portion thereof to the appellant in return for which appellant gave customary items including drinks and some money following an application for the grant. Appellant said he was consequently put in possession of the said piece or parcel of land. He utilised the land for farming purposes. In Amukpe Town land is, by the customs and traditions of the people, communally owned. Appellant stated that sometime in November 1991, the defendant, without any lawful excuse broke and entered the appellant’s said piece or parcel of land and dug and removed laterite therefrom and refused to stop despite his protests. The respondent is said to have removed from that piece of land a total of over 79706.784 cubic meters of laterite for which appellant claimed the special damages.
On the other hand, the case of the respondent is that it dug two burrow pits on a piece of land which forms part of a large piece of land that was compulsorily acquired by the Bendel State Government, the portion of which the government released to it upon application for the purpose; that before the government approval was received the respondent entered into a lease agreement with Amukpe Community in respect of the land and paid the sum of N10,000.00 apart from compensation for crops on the said land. The agreement with the community was entered into in November, 1990. The respondent therefore denied the claim of the appellant.
At the trial, appellant called four witnesses and also testified on his own behalf while the respondent called one witness. Appellant in addition, tendered, inter alia, exhibit B being a letter written by one of the witnesses of the appellant as Secretary to the Amukpe Community conveying the community’s approval of appellant’s application for a customary grant of land and giving dimensions thereof. On the other hand, respondent tendered Bendel State Gazette No. 104 of 2nd November, 1988 which allegedly compulsory acquired the land as exhibit F; while the deed of lease it entered with the community was admitted as exhibit G. At the end, the trial court found that appellant had proved his case and entered judgment in his favour resulting in an appeal before the Benin division of the Court of Appeal.
The issues for determination before the Court of Appeal were as follows:
“1. Whether the learned trial Judge was right in holding that the document conveying land to the respondent need not be stamped or registered, since same was a customary grant.
- Whether the learned trial Judge was right in holding that the purported grant of communal land to the respondent was valid, despite the absence of the consent of the head of the community.
- Whether the learned trial Judge was right in holding that the land compulsory acquired by the Bendel State Government was not identified by the appellant when in fact he failed to attach proper and/or any weight to exhibit “E”, “F” and “G” which clearly identified same.”
In its judgment delivered on 4th April, 2001, the Court of Appeal dealt only with issue No.1 and held as follows:
“It is manifest from the records that the judgment of the lower court is based solely on exhibit “B”. The wrongful admission of exhibit “B” by the learned trial Judge, made the court to erroneously hold that the land in dispute belongs to the respondent. If exhibit “B” is expunged from the records there will be no contest between the parties. I therefore expunge exhibit “B” from the records as it was wrongly admitted by the trial court. In the light of the foregoing, I consider it a barren exercise to proceed to consider issues (2) and (3) in this appeal as they will not serve any useful purpose. I therefore have no hesitation in allowing this appeal…”
The present appellant, who was a respondent at the Court of Appeal is not satisfied with that judgment and has therefore appealed to this court. According to learned counsel for the appellant, the issue for determination, as stated in the appellant’s brief filed by A.B. Odiete Esq, on 26/10/2001 at page 2 thereof, is as follows:
“Were the learned Justices of the Court of Appeal, Benin, right in setting aside the judgment of the learned trial Judge on the ground that exhibit “B” should not have been admitted since the said exhibit “B” which was not registered pursuant to the Land Instrument Registration Law was the sole basis of vesting title in the land on the appellant.”
The present respondent has not cross appealed against the non consideration of issues (2) and (3) by the Court of Appeal. Before proceeding with the arguments on the sole issue for determination, there is on record what purports to be a preliminary objection contained in the respondent’s brief filed by Ralh Kosi Nwalia Esq., on 20/2/2003. The uniqueness of the preliminary objection makes it necessary for me to reproduce same in extenso. It reads: “Preliminary Objection.
The respondent will contend at the hearing of this appeal by way of a preliminary objection that this appeal is incompetent in that the following grounds contained in the notice of appeal dated 31/5/2001 wherein the appellant apparently framed its issues involve questions of fact, mixed law and fact, whereas no leave on them was obtained.
The grounds and their respective particulars are as follows:
(i) Ground I – All the particulars contained therein.
(ii) Ground II – All the particulars.”
I must confess that I have never come across a preliminary objection in this form. Not only did learned counsel not file a formal application by way of motion on notice separately at the registry of this court, the so called preliminary objection is devoid of substance. For instance the grounds of appeal and their particulars complained of are not reproduced neither has learned counsel for the respondent, apart from stating what has been reproduced supra, proceeded to present any argument on the said objection in the respondent’s brief. In short learned counsel has not demonstrated to this court how the grounds of appeal in this appeal are of fact or mixed law and fact thereby requiring leave to appeal; the objection is therefore not worth the paper it is written on; it is an exercise in futility particularly since the central issue in the appeal revolves around wrongful admission of a document said to be one affecting interest in land and thereby needing to be stamped and registered. To determine the issue this court will have to interprete the contents of exhibit “B” so as to resolve the issue as to whether it concerns an interest in land, even though written in the form of a letter.
Therefore, for the benefit of learned counsel for the respondent and others who may still suffer from such delusion the law is settled that where the issue(s) raised in the ground(s) are on legal interpretation of deeds, documents, terms of art, words or phrases, and the inference drawn there from, the ground(s) are of law – see Comex Ltd. v. N.A.B. Ltd. (1997) 49 LRCN 815 at 832 and 833; (1997) 3 NWLR (Pt.496) 643 per Ogundare, JSC. It is therefore my considered view that the purported preliminary objection is not only grossly incompetent but calculated to waste the time of this court particularly as it is without merit.
In arguing the appeal, learned counsel for the appellant submitted that exhibit “B” is only a letter informing the appellant that his earlier application for a customary grant of land has been approved; that it is not a grant on its own which would have made it an instrument within the contemplation of the Land Instrument Registration Law Cap 81, Laws of Bendel State 1976, as applicable to Delta State; that it does not matter that the letter, exhibit “B”, contains all the information needed in a deed.
Submitting by way of an alternative, learned counsel stated that even if the said exhibit B is expunged from the record, the Court of Appeal decision will still be set aside because parties have agreed in their pleadings that the original owner of the land in dispute was the Amukpe Community; that there is evidence that appellant gave customary drinks to the Community in January 1978 for the piece of land and that he was put in possession thereof; that exhibit “D” is a survey plan appellant commissioned to be made of the land in, dispute sometime in 1982; that the trial court found that the respondent who dug a pit on the land in 1990 had no title to the land and that it trespassed thereon. Learned counsel submitted that the above findings of facts have not been set aside; that the trial court also found that appellant was granted the piece of land and put in possession by the Amukpe Community and that appellant has proved his case of trespass against the respondent particularly as trespass is a wrong against possession, relying on Shittu v. Egbeyemi (1996) 40/41 LRCN 1292 at 1299; (1996) 6 NWLR (Pt.457) 650 per Ogundare, JSC and at 1300 per Belgore JSC; Amakor v. Obiefuna (1974) 1 NMLR 331 at 335 per Fatayi Williams JSC (as he then was). Finally learned counsel urged the court to resolve the issue against the respondent and allow the appeal.
On his part, learned counsel for the respondent submitted that the Court of Appeal is right in holding that exhibit “B” is an instrument requiring registration within the meaning of section 16 of the Lands Instrument Registration Law. Learned counsel referred to the definition of instrument as contained in section 2 of the law and submitted that since exhibit “B” purports to transfer and/or confer an interest in land, it is an instrument which must be registered, and that failure to do so renders the document inadmissible by virtue of section 16(2) of the law, relying on Uzoegwu v. Ifekandu (2001) 17 NWLR (Pt.741) 49.
Turning to the consequences of expunging exhibit B from the record, learned counsel agrees with the lower court that the said exhibit B was the sole basis for entering judgment against the respondent by the trial court and that without it there was no other means of vesting title to the land on the appellant and urged the court not to interfere with that holding. Finally learned counsel urged the court to resolve the issue against the appellant and dismiss the appeal.
The issue of admissibility of exhibit “B” as raised in this appeal involves the interpretation of the document, which appellant presents as a mere letter conveying approval of Amukpe Community of the application of the appellant for a grant of a piece of land, to determine whether it is an instrument affecting interest in land thereby rendering same inadmissible in law without stamping and registration. That is the primary issue while the secondary issue or sub-issue is whether apart from exhibit B, there is other evidence to support the findings of the trial court in favour of the appellant, or whether it is correct to say from the record that exhibit ‘B’ was the sole basis for the award of judgment to the appellant as held by the lower court.
To resolve the primary issue, it is necessary to reproduce the said exhibit “B” – the bone of contention. It reads as follows:
“Amukpe Community
Postal Agency, Box 30
Amukpe, Via Sapele
Tel. 054-41935
12th January, 1978
Mr. Raphael W. Ogbimi
31, Oriaku Street
Sapele.
Dear Sir,
Re: Your applicationfor a piece of land measuring 759ft x 59ft x 759ft x 598ft along NEPA line off Amukpe/Eku Road, Amukpe
Following your application for the above piece of land and our inspection of the said land and the customary drinks you gave to the community, we are happy to inform you that the community has granted you the said piece of land under Amukpe customary law i.e. forever and ever. The area granted to you measures approximately 759 feet by 598 feet by 759 feet by 598 feet.
Yours faithfully
For: The Amukpe Community
Sign ……………….
Secretary. ”
The question is whether the above contents, even though written in the form of a letter qualifies as an instrument under the Land Instruments Registration Law Cap. 81 Laws of Bendel State 1976 as applicable to Delta State. To answer the question, we have to have recourse to the provisions of section 2 of that law which defines “instrument’ as follows:
“Instrument’ means a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in the State …”
Does exhibit B qualify as an instrument within the definition reproduced above There is no doubt that exhibit B, is a document in the form of a letter. A cursory look at exhibit B clearly shows that it purports to transfer and/or confer an interest in the piece of land described therein on or to the appellant. Exhibit B was written for and on behalf of Amukpe Community, the original owners of the land in dispute who thereby qualify to be described as grantors while the appellant, on whom the interest is conferred or transferred to, is clearly the grantee. By the transfer or conferment of the said interest, the Amukpe Community thereby extinguished its interest in the land in favour of the appellant. I therefore agree with the conclusion of the lower court that exhibit “B” “purports to transfer the land in dispute to the respondent by Amukpe Community. Exhibit “B” is therefore an instrument as defined under section 2 of the Land Instrument Registration Law Cap 81 Laws of Bendel State of Nigeria 1976 – applicable in Delta and Edo States.”
I hold the further view that what is material in interpreting exhibit “B” for the purpose of the applicable law is not the form the document was written but its contents. There is no doubt that exhibit B was written as a letter addressed to the appellant but its contents reveal it as an instrument affecting land and therefore subject to registration before it can be admissible in evidence in any proceedings.
In the present case both parties and the court agree that exhibit “B” was neither stamped nor registered but was duly tendered and admitted in evidence at the trial despite the objection of learned counsel for the respondent. The question that follows is whether that admission in evidence by the trial court is right in law. Section 16 of the law under consideration provides thus:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless same shall have been registered in the proper office as specified in section 3.”
From the above it is clear and I agree with the lower court that exhibit “B” which was not registered in accordance with the above provisions is thereby rendered inadmissible and that its admission by the trial court was erroneous and subject to be set aside. I therefore hold the view that the lower court was correct in expunging the said exhibit “B” from the record on the ground that it was legally inadmissible in the first place.
However, the sub-issue that now falls for determination is whether the said exhibit B was the sole basis for the decision of the trial Judge in favour of the appellant so as to render its expungation sufficient to set aside that judgment.
Section 227 of the Evidence Act, 1990 provides as follows:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.
(3) In this section the term “decision” includes a judgment, order, finding or verdict.”
For our purpose sub-section (1) of section 227 is relevant and applicable. The lower court had held inter alia that it is manifest from the records that the judgment of the lower court is based solely on exhibit “B” – (emphasis supplied by me). The question remains whether that court is right in so holding.
To answer the question we have to look at the evidence and the findings of the trial court on the relevant facts. I had earlier in this judgment stated that appellant called four witnesses excluding himself who testified in person. All the four witnesses and the appellant are natives of Amukpe Community, original owners of the land. There is no dispute that appellant’s claim to the disputed land is based on customary grant not on conveyance. All the witnesses of the appellant including appellant himself testified to the customary grant of the land in dispute to the appellant by Amukpe Community after appellant had applied to the community for the said grant and that appellant provided the necessary customary drinks etc and was thereafter put in possession thereof. Exhibit D clearly shows that in 1988 appellant surveyed the land in dispute. The trial court, in resolving the issue as to whether or not appellant was granted the land in dispute found as follows at page 48 of the record:
“In the absence of a contrary evidence as to customary mode of alienation of land in Amukpe I accept the evidence of the plaintiff and his witnesses that the land in dispute as shown in exhibit ‘A’ was lawfully granted to him by the Amukpe Community.”
As stated earlier in this judgment, the above finding or holding by the court is based on the testimony of the witnesses for the appellant and the appellant himself. PW1 at page 13 of the record stated inter alia thus:
“The land was formally owned by the Amukpe Community. I am born in Amukpe and I am one of the dignitaries in Amukpe. The plaintiff came to the Amukpe community and applied for land and this was given to him by the Amukpe Community.”
PW2 also stated at page 14 as follows:
“The land in dispute belongs to the plaintiff.” Under cross examination PW2 said “Amukpe Community gave the land to the plaintiff for purpose of building. I am from Amukpe…”
PW3 was the licensed surveyor who carried out a survey of the land in dispute following the institution of the action and produced survey plan which was tendered and admitted as exhibit “A”. PW4 was a former secretary of Amukpe Community who wrote and tendered exhibit “B”. He testified at page 17 of the record as follows:
“On 12/1/78 the plaintiff applied to Amukpe Community for a piece of land along the express way leading to Warri from Amukpe. This land was on the left hand side of the road. The Amukpe Community sent people to inspect the land. The Community granted him the piece of land. The plaintiff later brought customary gift of drinks and kolanuts to the Amukpe Community we put the plaintiff in possession.”
This witness, like the previous ones was not challenged as to the alleged grant to and/or possession of the land by the appellant. The evidence of the appellant on the issue is very much the same as those of PW1, PW2 and PW4 except that appellant added that he, in addition to the traditional drinks, “gave some money with which I wedged the kolanuts.”
From the evidence as reproduced in this judgment, it is clear that there is abundant evidence, apart from exhibit “B” which was lightly expunged from the record by the lower court, to ground the finding by the trial court that the land was lawfully granted to the appellant in accordance with the customs of Amukpe Community. That being the case, I hold the further view that the lower court was in error when it held that exhibit “B” was the sole basis for the trial court finding that the land was granted to the appellant, the said holding not being supported by evidence on record. In the circumstances I have no alternative than to come to the conclusion that the lower court though right in holding that exhibit B is an instrument that ought to have been registered before being pleaded, tendered and admitted in evidence and that failure to do so rendered the said exhibit “B” inadmissible and consequently expunged same from the record, the said lower court erred in setting aside the judgment of the trial court in view of the abundance of evidence in proof of the customary grant of the land in dispute to the appellant by Amukpe Community, which grant was not seriously challenged by the respondent. I therefore hold that the wrongful admission of exhibit B by the trial court in itself is no ground for the reversal of the judgment of the trial court particularly as it has been demonstrated that the said exhibit “B” did not affect the said judgment of the trial court since the decision would still have been the same without exhibit “B” in view of the testimonies of the witnesses and the appellant and the findings of the trial court on the matter.
There being no cross appeal against the failure of the lower court to resolve issues (2) and (3) before it, it follows that the findings of the trial court that the respondent is a trespasser on the land in dispute and that it had failed to prove that the land in dispute forms part of the land compulsorily acquired by the Government of Bendel State in 1988 stand unchallenged and this court has no jurisdiction to disturb the said findings.
In conclusion I find merit in this appeal which is accordingly allowed. The judgment of the lower court is hereby set aside while the judgment of the trial court is hereby restored. It is further ordered that appellant be and is entitled to costs which I assess and fix at N8,000.00 in the lower court and N10,000.00 in this court against the respondent.
Appeal is allowed.
SC.275/2001
