Adaji Ojonye V. Alhaji Salisu Ibrahim & Ors. (2001)
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RABIU DANLAMI MUHAMMAD, J.C.A.
The 1st respondent herein i.e Alhaji Salisu Ibrahim was the plaintiff at the lower court. He instituted an action at the Kaduna State High Court claiming the following reliefs:-
(a) As against the 1st, 2nd and 3rd defendants a DECLARATION that he is the lawful owner of the right of Occupancy over plot and property known as No. Z. 12 Jaji road (also known as Z.5 Jaji Road) Abakpa Kaduna.
b) AN ORDER directing the 1st defendant to refund to the plaintiff the total sum of N46,800.00 (forty six thousand, Eight hundred naira) only being the rent at N100.00 per room, per month for the 16 rooms covering the period August, 1991 to August, 1994.
c) AN ORDER restraining the 1st defendant from collecting or further collecting any rents or dues or monies from the tenants of the house No.Z. 12 Jaji Road (Known as No. 25 Jaji Road) Abakpa Kaduna.”
It is only the 1st defendant, Adaji Ojonye, who is now the appellant that filed a statement of defence in which he denied all the claims and urged the lower court to dismiss the suit as it lacked merit and was an abuse of the court’s Process. The other two defendants did not participate in the trial. Evidence were adduced by both the plaintiff and the 1st defendant. The plaintiff testified and called four witnesses. The first defendant also testified and called four other witnesses. After considering the evidence adduced by both parties, the learned trial Judge made some specific findings and came to the following conclusion:-
“The final analysis of my various findings shows that the plaintiff has proved his case as laid down in section 135 and 136 of the E. A. cap 112 Laws of Federation of Nigeria, 1990 I find that he is entitled to judgment. Accordingly I enter judgment in his favour against the defendants in the terms of Paragraph 7 of the plaintiff’s statement.”
Dissatisfied with the judgment, the 1st defendant appealed to this court. He filed three grounds of appeal. On 21st October, 1999, he filed a motion on notice to amend the notice and grounds of appeal by filing additional grounds of appeal. This motion was however withdrawn and struck out on 24th January, 2000. The grounds of appeal as contained in the notice of appeal are:-
“1. That the honourable court erred in law by granting relief that was not pleaded.
PARTICULARS:
a) That the plaintiff did not plead arrears of rents but only prayed the court to grant same in paragraph 7 and nothing more. Since the plaintiff did not plead arrears of rents and any evidence given in that regard goes to no issue.
- That the honourable court erred in law when it held that the first defendant should pay rent arrears to the plaintiff when the plaintiff abandoned that relief in his evidence.
- That the honourable court erred in law when the court admitted exhibit pleaded in paragraphs 5 and 6 and LANDS under section 15 of the Registration Law makes the said exhibit inadmissible.”
On the 3rd of July, 2000, this court granted the appellant extension of seven days within which to file his brief of argument. The said brief was filed on 4th July, 2000. The respondents were served with the appellant’s brief but they failed to file their own brief on the day the appeal was fixed for hearing i.e. 15th May, 2001, neither the respondents nor their counsel was in court even though they were served with the hearing notice. Up till that day they did not file their brief of argument. Mrs. Omoloba, learned Counsel for the appellant, therefore applied to the court to hear the appeal on tile appellant’s brief alone and in the respondent’s absence since they were served but refused to come to court and no reason was given for their absence. The application was granted. She then adopted the appellant’s brief of argument in its entirety and urged the court to allow the appeal.
Two issues were identified for the determination of the appeal in the appellant’s brief. The issues are:
“(1) Whether there was a statement of claim before the court upon which it relied to determine the case.
(2) Whether Exhibit 1 and 3 (power of attorney and sales agreement) which was not registered under the Lands registration law can be admitted and relied upon by the court.”
An issue for determination in an appeal must be formulated in concrete terms and must relate and arise from the ground or grounds of appeal filed and should be of such a nature that a decision on it one way or the other must affect the result of the appeal. See A. -G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645.
The purpose of formulation of issues for determination in a brief of argument is to accentuate the real issue for determination before the court i.e, the issues in the grounds of appeal relevant to the determination of the appeal. Hence the issues must be within the purview of the grounds of appeal filed. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275 and Ehot v. The State (1993) 4 NWLR (Pt. 290) 644. This means that an appeal court will refuse to consider and pronounce on an issue formulated for determination which does not arise from the grounds of appeal filed. Such issues will be deemed irrelevant and struck out: Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260 and Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.
The issue for determination which is:- “Whether there was a statement of claim before the court upon which it relied to determine the case does not arise from the grounds of appeal filed. It is irrelevant to the determination of this appeal. It is hereby struck out and the argument thereon discountenanced.
We are now left with the second issue which is whether Exhibit 1 and 3 which were not registered under the Lands Registration Law, can be admitted and relied upon by the court. It was submitted that by virtue of S.15 of the Land Registration Law of Kaduna State any instrument that is to transfer land from one person to another, must be registered and the absence of such registration made the instrument inadmissiable in evidence. The decision of Supreme Court in Oredola Okeya Trading Co. v. A.-G., Kwara State (1992) 7 NWLR (Pt. 254) 412, 9 SCNJ 13 was referred to. It was further submitted that since the power of attorney and the sales of agreement were wrongly admitted because they were not registered, the court was wrong to have acted upon them and urged the court to reject the findings based upon the said exhibits.
S.15 of the Land Registration Law, Cap. 85, Laws of Kaduna State, 1991 provides:-
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.”
“Instrument” is defined in section two of the said law as:-
“a document affecting land 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 land in, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
The two exhibits in question, exhibits P3 and P4 i.e. the sales agreement and the power of attorney qualify as instruments under the Land Registration Law of Kaduna State. They are registrable. Since they have not been registered, they can neither be pleaded or given in evidence. Even where they are pleaded, they should be ignored. Where a document is wrongly admitted in evidence without registration, it should be expunged from the record. See Ojugbale v. Olasoji (1984) 4 SC 31; Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598 and Omoni v. Big Tom (1991) NWLR (Pt. 195) 93. In Oredola Okeya Trading Co. v. A.-G., Kwara State (1992) 7 NWLR (Pt. 254) 412 Ogundare JSC stated at page 424:-
“Exhibit 1 was never registered and it is the contention of the learned counsel for the defendants/respondents that it is therefore inadmissible in evidence. Section 15 of the Land Registration Law of Northern Nigeria is applicable to the present proceedings. I have already held that Exhibit 1 is an instrument. It is not in dispute that it was never registered. Therefore it should not have been admitted in evidence and having been wrongly admitted in evidence, the learned trial Judge was right in expunging it from the record.”
In our present case, the trial Judge not only admitted the documents, he relied on them to arrive at his decision. See page 45 of the records where the trial Judge stated in his judgment:-
“Exhibit P3 and P5 the agreements signed by the plaintiff and PW3 strengthens the evidence of the purchase.
The power of attorney, exhibit P4, in favour of the PW3 established the authority and competence to sell the house. Thus, the power of attorney expected by the 2nd defendant in favour of PW3 and in respect of the house in dispute empowered her among other things, to “execute and do all acts and things as fully and (sic) effectically in all respects” as the 2nd defendant could do personally.
From the above, analysis, two things have been fully established.
Firstly, that the 2nd defendant owned the house. Secondly, that by virtue of the power of attorney to favour of PW 3, his daughter was competent to sell the house. Fully established is that the plaintiff has purchased the house from PW3.”
The learned trial Judge wrongly construed the import of S.15 of the Land Registration Law and as such came to a wrong conclusion. In interpreting the said section he jettisoned the canons of interpretations of a statute, by considering matters that have no relevance to the Law. Instead of relying on the said exhibits, he should have expunged them from the record. My answer to the issue is therefore in the negative. The two exhibits are not registered, as such they cannot be admitted and relied upon by the court.
The appellant filed three grounds of appeal. He formulated two issues for the determination of the appeal. One of the issues for determination was struck out because it did not arise from any of the grounds of appeal filed. The remaining issue for determination relates to ground three only. It therefore follows that grounds one and two of the notice of appeal are not covered by any issue for determination. Where no issue is formulated on a ground of appeal that ground of appeal must be considered abandoned. See Atunrase v. Philips (1996) 1 NWLR (Pt. 427) 637; Dile v. Iwuno (1996) 4 NWLR (Pt.445) 622 and Effiong v. State (1998) 8 NWLR (Pt. 562) 362.I therefore hold that grounds one and two are abandoned.
Since I have held that the learned trial Judge wrongly admitted and relied on the sales agreement and the power of Attorney, the appeal succeeds. In the appellant’s brief, it was stated that the appellant filed his statement of defence and counter-claim. I have very carefully gone through the record and I could not find any counter-claim filed by the appellant. Also there was nowhere in the judgment where the trial Judge considered any counter-claim. The appeal is allowed. The judgment of the lower court is set aside. The appellant is entitled to cost which I assess at N2000.00.
Other Citations: (2001)LCN/1009(CA)
