West African Cotton Ltd. & Anor V. Salisu Samaila Yankara (2007)
LawGlobal-Hub Lead Judgment Report
OLUKAYODE ARIWOOLA, J.C.A.
This appeal is against the judgment of Katsina State High Court of Justice sitting in Funtua Judicial Division dated 14th June, 2004 delivered by Hon. Justice I. M. Baka in Suit No. KTH/FT/20/03.
The facts of the case are that the Appellants were Judgment Creditors in Suit No. KTH/FT/23/98 between – WACOT and 1 Other VS. Alhaji Ahmadu Yankara, the Judgment debtor. By the leave of the Katsina State High Court sitting in Funtua dated 17th November, 2003 the immovable property of the Judgment debtor situate at Yankara town, covered by Certificate of Occupancy No. FAS/A/0088 was attached. Prior to the date fixed for the auction sale of the attached property, the present Respondent filed an originating summons claiming ownership of the said attached property. The originating summons was opposed by the Appellants. Judgment was eventually entered infavour of the Respondent. The Appellants being dissatisfied with the judgment filed a Notice of Appeal dated 23rd June, 2004 containing three grounds of appeal as follows:-
Ground One
“The learned trial Judge erred in law to have accorded strong probative value on Exhibit 1.
Particulars of Errors
(a) That it is trite law that Exhibit 1 is a mere acknowledgement receipt.
(b) That Exhibit 1 per se cannot vest absolute interest on ownership in land.
(c) That the claimant is not in possession of the said property.
Ground Two
The learned trial Judge erred in law to have admitted Exhibit 4 in evidence.
Particulars of Errors
(a) That Exhibit 4 is registrable instrument.
(b) That Exhibit 4 was executed on 22/7/2002.
(c) That the pre-requisite necessary consent before the execution of Exhibit 4 was never sought or obtained.
Ground Three
(a) The decision of the lower Court is against the weight of the affidavit evidence.
(b) Further ground(s) of appeal will he filled (sic) on receipt of the record of proceedings.”
From the above grounds of appeal, the Appellants in their joint brief of argument dated 22nd February, 2005 formulated the following three issues for determination of this appeal.
Issues for Determination
1. To what extent can Exhibit 1 be lied (sic) upon in proving ownership of a landed property.
2. Whether Exhibit 4 is an admissible instrument in proving ownership of a landed property.
3. Whether the evidence before the trial court was correctly weighed having regard to the burden of proof in interpleader’s proceedings.
In arguing the appeal, learned counsel to the Appellants took the issues above seriatim.
Issue No. 1 is tied to ground one of the grounds of appeal. On this, learned counsel contended that, in proving ownership of the attached property, the Respondent placed reliance on Exhibit 1 which is a receipt of purchase. He submitted that Exhibit 1 was a mere agreement for sale and that consideration for such sale was paid.
On whether or not the said Exhibit 1 can vest absolute interest in land infavour of the Respondent, learned counsel submitted that the burden on the Respondent was not only to prove that money was paid but also that he was actually put into possession as required by law. Learned counsel contended that there was nothing in the affidavit evidence to establish that the money paid was coupled with an entry into possession, hence the Respondent did not prove absolute interest as claimed. He cited; Manya vs. Idris (2000) FWLR (pt 23) 1237.
Issue No. 2 is said to be tied to ground two of the grounds of appeal. On this, learned counsel submitted that Exhibit 4 is a Deed of Assignment between UBA and the Respondent. He contended that Exhibit 4 which was executed on 22nd July, 2002 is a Registrable Instrument but was not registered. He cited; Savannah Bank vs Ibrahim (2000) FWLR (pt 25) 1626 at 1632. He submitted that registrable instrument which was not registered is not admissible in evidence in proving ownership of land, except where there was proof of actual possession. He submitted further that the Respondent in the instant case did not discharge the onus placed on him to make the document admissible to prove either equitable or legal interest infavour of the Respondent.
Learned counsel contended that by virtue of Sections 22 and 26 of the Land Use Act, the consent of the Governor needed to be first sought and obtained prior to the execution of Exhibit 4. He contended further that the Governor’s consent was never obtained either before or even after the execution of Exhibit 4. He therefore submitted that the transaction which the document purports to evidence is null and void. He cited; Alao vs. ACB Ltd. (1998) 3 NWLR (pt 542) 339 at 343. He urged the Court to expunge Exhibit 4 from the record and discountenance it, relying on Savannah Bank vs. Ibrahim (supra).
On the third issue, learned counsel contended that it is tied to ground 3(a) which is an omnibus ground, while ground 3(b) is abandoned.
On this, learned counsel referred to the affidavit evidence of the Respondent and Exhibits A, B nd C and submitted that the burden was on the Respondent who asserted the existence of a particular fact to prove it. He cited; Maigoro vs. Bashir (2000) FWLR (pt 19) 553 at 564. Also Section 137(1) of Evidence Act, Cap 112 LFN, 1990.
Learned counsel contended that Exhibit 1 is a mere acknowledgement receipt which in law holds no water in proving ownership of a landed property. Exhibits 2 and 4 are not vital in proof of ownership of a landed property.
Exhibit 3 is the Certificate of Occupancy No.FAS/A/0088 issued by the FASKARI Local Government in the name of the judgment debtor. He submitted that there was no iota of evidence before the trial court to show that the said Certificate of Occupancy has either been revoked or duly assigned to yet another person by the appropriate authority. In the result, he submitted that by virtue of Exhibit C, the judgment debtor still retains the ownership of the property attached.
He submitted further that the best way or method to satisfy the court about the existence of any fact is by adducing credible, sufficient and satisfactory evidence about the fact. Learned counsel finally urged the court to set aside the judgment of the trial court.
Upon being served with the Appellants’ brief of argument, the Respondent’s brief of argument dated 14th – February, 2007 was deemed to be properly filed and served on 20th February, 2007, having been filed out of time. From the said brief of argument, the Respondent formulated a sole issue for determination as follows:-
“whether the interpleader proceedings is the proper venue for the determination of the legality or otherwise of the sale transaction between the Respondent and Amadu Musa Yankara (Judgment Debtor as per Exhibit 4”
In arguing the said sole issue, learned counsel to the Respondent submitted that the case of both parties before the trial court was based on affidavit evidence adduced in their respective affidavit and counter affidavit. And these were what the trial court used to arrive at its decision in resolving the matter the way he did. He cited; Ezegbu vs. F.A.T.B. (1992) NWLR (pt 220) 669 at 720.
Learned counsel conceded that Exhibits A and B are inadmissible in evidence for the reasons advanced by the Appellants. He referred to Section 15 of Land Registration Law Cap 74, Laws of Katsina State 1991 and cited; Abu vs. Kuyabana (2002) 4 NWLR (pt 758) 599 at 602. He however submitted that the said Exhibits A and B did not in any way occasion miscarriage of justice. For the law is that admission of inadmissible evidence is not a ground for reversing judgment. He referred to Section 227 of the Evidence Act, Cap 112, Laws of the Federation, 1990.
Learned counsel submitted that the interpleader proceeding is not the proper avenue to determine the legality or otherwise of the sale transaction between the Respondent and the Judgment Debtor (Alhaji Amadu Musa Yankara).
Learned counsel urged on this Court to apply the provisions of Order 1 rule 2(2) of the Court of Appeal Rules, 2002 and reject the prayer to reverse the decision of the trial Court based on improper admission of inadmissible evidence. He finally urged us to affirm the decision of the trial court and dismiss the appeal for lacking in merit with substantial costs infavour of the Respondent but against the Appellants.
I have examined the issues formulated by the parties in this appeal. That is, the three issues of the Appellants and the sole issue, of the Respondent. It is interesting to note that the sole issue formulated by the Respondent ordinarily did not arise from the grounds of appeal raised by the Appellant in the Notice of Appeal. It touches on the mode of commencement of the action, by way of originating summons. It is trite that issues formulated for determination not based on grounds of appeal filed goes to no issue, are incompetent and must be discountenanced and struck out. See; Alhaji Sabiriyu Shittu & 3 Ors. Vs. Otunba Oyewole Fashawa (2005) 10 – 11 SCM 330; Alimi Akanbi Dada vs. Chief Jonathan Dosunmu (2006) 12 SCM (pt 2) 108 at 120.
It is equally trite that a Respondent in an appeal who has not filed a cross appeal or filed a Respondent’s notice to an appeal has no right to formulate issues outside the grounds of appeal raised by the Appellant. Any issue so formulated by a Respondent outside the Appellant’s grounds of appeal is incompetent and it is liable to be struck out. See; S.A.I. Ossai vs. I. F. Wakwah & Ors. (2006) 2 SCM 170 at 179 – 180.
Therefore, the sole issue formulated by the Respondent herein, on whether the interpleader proceedings employed at the lower Court for determination of the legality or otherwise of the sale transaction between the Respondent and Amadu Musa Yankara, was proper does not arise from any of the three grounds of appeal filed by the Appellants. It simply goes to no issue, should be discountenanced and struck out. Accordingly, the issue is hereby struck out. This appeal will therefore be determined on the issues raised by the Appellants.
Issues 1 and 2 shall be conveniently taken together. The two issues are said to be tied down to grounds 1 and 2 respectively. Learned Appellants’ counsel had referred to the Exhibit 1 as a receipt of purchase and a mere agreement for sale with the consideration having been paid. He however submitted that not having proved that he was put into possession, the Respondent failed to prove his absolute interest in the property.
On Exhibit 4, learned counsel submitted that it is said to be a Deed of Assignment between UBA Plc and the Respondent executed on 22nd July, 2002. He contended that it is a registrable instrument but was not registered. He therefore submitted that it was not admissible in evidence in proving ownership of land.
As earlier stated, this action arose from the decision of the trial Court on the Originating Summons earlier taken out by the Respondent.
In the ruling of the lower Court appealed against the learned trial Judge ‘stated the question that was taken before his Court for determination as follows:
“Whether the judgment debtor still retains ownership of the property situate and lying along Yarmalamai Road, by Sakoto Road, Yankara Town, covered by Faskari Local Government Certificate of Occupancy No.FAS/A/0088 registered No. as No. 0088 at page 9 Vol. J FASKARI LOCAL GOVT. Land Registration Office, which property is now sought to be attached and sold by the judgment creditor in fulfillment of the judgment of this Court delivered on 25th November, 1998 between the judgment creditor and of purchase of the property issued by one Umaru Y. Mohammed whom he said is a licensed auctioneer. The property was as per Exhibit 1 sold to Samaila Yankara (the claimant) at the sum of N750,000.00k”
On page 9 of the record of appeal in the ruling of the trial Court, the learned trial Judge has this to say;
“I have carefully considered all the oral submissions made by the learned counsel for the parties, the affidavits in support of their positions and the Exhibits annexed, particularly Exhibits 1 – 5 attached to the affidavit in support of the originating summons.
It is clear and I am satisfied from the Exhibits annexed that the state of affairs those exhibits were intended to establish and actually took (sic) place. That is to say that the claimant had bought and paid for the property in question. There is no doubt about that and even the defendant does not dispute that.”
As found by the learned trial Judge and started in his ruling on record, the documents attached to the Originating Summons by the Respondent as follows:
Exhibit 1 is a “receipt issued by a Licensed Auctioneer to the Respondent for payment of N750,000.00. Exhibit 2 is a letter from the United Bank for Africa Plc to the Licensed Auctioneer for the release of the Certificate of Occupancy in respect of the property in question. Exhibit 3 is the Certificate of Occupancy in respect of the property in question. Exhibit 4 is a Deed of Assignment between the United Bank for Africa Plc and the claimant whereby the Bank in consideration of the sum of N750,000.00 assigned the property in question to the claimant. Exhibit 5 is the deposit slip for payment of the sum of N750,000.00 into the Bank by the Licensed Auctioneer following the sale of the property in question to the claimant.
After reviewing the affidavit evidence and the attached annexure, the learned trial Judge came to the following conclusion-
“It is my view therefore that it would be patently unjust to, in this action declare the sale agreement between the claimant and the judgment, debtor null and void merely for the purpose of enabling the Defendant to attach and sell it to recover the judgment sum”
Learned trial Judge went further in his ruling to say that;
“In answer to the question posed in the originating summons therefore, I hold the view that having sold to and utilized the proceeds:
1. The judgment debtor does not retain ownership of the property situate and lying along Yarmalamai Road by Sokoto Road Yankara Town covered by C of O No.FAS/A/0088 now sought to be judgment creditor.
2. Consequently I hereby declare that the judgment creditors cannot sell the property in question in fulfillment of the judgment of this Court delivered on 25th November, 1998.
I also order the Sheriff and/or any of his legal representatives or Staff to release forthwith any hold on the property in question.”
There is no doubt that the production of title document is one of the recognized methods of proving title to land; See; Idundun vs. Okumagba (2002) 20 WRN 127; (1976) 9 – 10 SC 227 at 246; (1976) 1 All NLR 200; Piaro vs. Tendo (1976) 12 SC 3I at 37, But such a document to evidence title must be admissible in evidence and must be of such a character as to be capable of conferring valid title on the party relying on it. See; Dodo Dabo vs. Alhaji Ikira Abdullahi (2005) 29 WRN 1 at 28 and 36.
However, in Romaine vs. Romaine (1992) 4 NWLR (pt.238) 650 at 662, (1992) 5 SCNJ 25, the Supreme Court, on relying on production of document as evidence of title observed thus:
“But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance on such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions including:
(i) whether the document is genuine and valid;
(ii) whether it has been duly executed, stamped and registered;
(iii) whether the grantor had the authority and capacity to make the grant;
(iv) whether the grantor had infact what he purported to grant; and
(v) whether it has the effect claimed by the holder of the instrument.”
It is clear from the record of appeal that the claimant relied very much on Exhibits I and 4 attached to the Originating Summons. There is no doubt that Exhibit 1 is a mere cash receipt acknowledging payment of certain sum of money. It means nothing more than that. It can neither transfer nor convey title in land or landed property to anyone. It is therefore erroneous to rely upon Exhibit 1 in proving ownership of a landed property. Such document does not have that capacity purportedly ascribed to it.
Similarly, Exhibit 4 which is said to be a Deed of Assignment purports to assign to the purchaser the residue of the total interest held by the judgment debtor in the property in question. There is no doubt that Exhibit 4 is qualified to serve as an acknowledgement of receipt of purchase price of the property in question but nothing more.
Generally, if a person sells his land or landed property to another but fails to put the person in possession, he retains possession. The payment of money by the other person and acknowledgement of receipt of money by the owner does not perse amount to transfer of possession to the purchaser. There must be more, either a conveyance or an assignment duly executed in his favour or a physical entry into possession by the purchaser to clothe him with legal title in the first instance and later an equitable title.
See; Folarin vs. Durojaiye (1988) 1 NWLR (pt.70) 351, Omodele Ashabi Eya & 2 Ors. Vs. Alhaji Bello Qudus & 1 Or. (2001) 30 WRN 71.
There is no doubt that Exhibit 4, which is said to be a Deed of Assignment and a registrable instrument was not registered. The law is trite that an unregistered instrument is not admissible in evidence to prove title to a landed property claimed to have been sold. But as stated earlier, if possession had been delivered to the Respondent, this would have given rise to an equitable interest which is capable of being converted into a legal estate by order of specific performance. See; Ogunbambi vs. Abowaba (1951) 13 WACA 222, Fakoya vs. St. Paul Church, Shagamu (1966) 1 All NLR 74, Adesanya v. Aderonmu (2000) 13 WRN 104, (2000) 9 NWLR (pt 672) 370; Abu vs. Kuyabana (2001) 44 WRN 113, (2001) I NWLR (pt 695) 491, Niger Construction Ltd. Vs. Ogbimi (2001) 18 NWLR (pt 744) 83, Oladipo Okuwobi vs. Florence Achonu (2006) 1l WRN 156; In Raphael Waks Ogbimi vs. Niger Construction Ltd (2006) 5 SCM 66 at 78 the Supreme Court, considering effect of unregistered registrable instrument held thus:
“Since the document was not registered pursuant to the requirements of the law, the trial High Court was in error in admitting it in evidence and giving it efficacy as partly supporting the Appellant’s claim for interest inland.”
In the instant case, since Exhibit 4 is a registrable instrument but was not registered, it becomes inadmissible. It was not capable of conferring any interest in the property in question upon the claimant. In the circumstance, Issues 1 and 2 are hereby resolved infavour of the Appellants but against the Respondent. This takes me to Issue No.3, whether the evidence before the trial court was correctly weighed having regard to the burden of proof in interpleader’s proceedings.
As I stated earlier, the case at the trial Court was prosecuted by an Originating Summons. In support of the summons was an affidavit of 15 paragraphs. Attached to the affidavit were five (5) annexure marked Exhibits 1 – 5 respectively. The Respondent in reaction filed a counter affidavit of six (6) paragraphs.
Generally, commencement of action by originating summons is a procedure which is used in cases where the facts are not in dispute or there is no likelihood of their being in dispute. Originating Summons is also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. See; Din vs. Attorney General of the Federation (1986) 1 NWLR (pt 17) 471, Obasanya vs. Babafemi (2000) 15 NWLR (pt 689) 1 Nigerian Breweries Plc vs. Lagos State Internal Revenue Board (2002) 5 NWLR (pt 759) 1 Alhaji Alubankudi vs. Attorney-General of the Federation (2002) 17 NWLR (pt 796) 338.
In Famfa Oil Limited vs. Attorney-General of the Federation & Anor (2003) 18 NWLR (pt 852) 453, (2003) 51 WRN 1, (2003) 12 SCM 85 at 91 Belgore, JSC (as he then was) stated as follows:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, Will of other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for a declaration of his interest. It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his right.”
See also; Inakoju vs. Adeleke (2007) 4 NWLR (pt 1025) 427 at 571.
In the instant case the learned trial Judge based his decision purely on the affidavit evidence and the attached Exhibits. I must say clearly here that parties did not join issues at the Court below whether or not Originating Summons was the proper method of commencing the action. And the Respondent neither has a cross appeal nor filed Respondent notice to the Appellant’s appeal.
To interplead is to assert one own claim regarding property or an issue already before the Court, or to institute an interpleader action by depositing disputed property into the Court’s registry to abide the Court’s decision about who is entitled to the property. See; Black’s Law Dictionary, Eighth Edition, page 837.
In view of the above, I hold that the trial Court did not correctly weigh the affidavit and documentary evidence presented by both parties. Issue No. 3 is accordingly resolved infavour of the Appellant but against the Respondent.
In the final analysis, for being meritorious, this appeal succeeds and it is allowed.
Accordingly, the decision of the trial Court delivered on 14th June, 2004 delivered by I. M. Bako, J in Suit No.KTH/FT/20/03 is hereby set aside.
As costs follow events there shall be costs of N5,000.00 in favour of the Appellants but against the Respondent.
Other Citations: (2007)LCN/2371(CA)
