Alhaji Aminu Jubrillah Abdullahi & Ors V. Mrs. Christiana Iyabo Adetutu (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Lagos State, Ikeja Judicial Division, [trial Court, for short], the plaintiff, Alhaji Jubrilla Abdullahi, on January 29, 1993, commenced Suit No. ID/216/93,against Mrs. Iyabo Adetutu and Alhaji Tijani Sanni. His reliefs against them were couched thus:
(a) Declaration that the plaintiff is the person entitled to Statutory Right of Occupancy in respect of a land situate, lying and being at Onipetesi, Idimango, Agege, Lagos State, which is more particularly described and delineated on Survey Plan No. AB/LA/86/311 prepared by. I. A. Babalola., Licensed Surveyor on the 23rd day of September, 1986.
(b) A sum of N500, 000.00 (Five Hundred Thousand Naira) being special and general damages for trespass being committed by the defendants who recently have been harassing and disturbing the possession, occupation and control of the vast area of land by the plaintiff.
(c) Perpetual Injunction restraining the defendants, their servants, agents and/or privies from continuing with their acts of molestation and harassment of the defendants, their servants, agents
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and/or privies of the land in dispute.
On April 16, 1993, while the plaintiff’s Suit No. ID/216/93 was lis pendens, the defendant commenced Suit No. ID/855/93 against Rasheed Adetokunbo and James Ojo, the fourth and fifth appellants in this appeal. The reliefs in Suit No. ID/855/93 were for:
(1) A declaration that the plaintiff is entitled to the Statutory Right of Occupancy in respect of the land situate, lying and being at Onipetesi, Agege, Lagos, which is delineated on Plan No. CD. 52/71 dated 2nd March, 1971, annexed to the Deed of Conveyance granted to the plaintiff by Adetokunbo Bisiriyu dated 28th September, 1971 and registered as 55/55/1369.
(2) The sum of N750, 000. 00 being special and general damages for the trespass to the land committed by the defendants and for the damage to and destruction of the plaintiffs plantation, cash crops, buildings, machineries, generator, wall-fence and iron gates on the land; and
(3) Perpetual injunction restraining the defendants, their servants, agents or privies from any further act of trespass on the said land.
Sequel to the consolidation of the suits, they were transferred to Olu
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Akerele-Ayeni, J., who heard and determined them. The trial Court found for the plaintiff in Suit No. ID/855/93, [that is, the respondent in the instant appeal], who counter-claimed in ID/216/93. Dissatisfied with the judgement of the Court of Appeal, Lagos Division, [the lower Court, for short], which allowed the appeal in part, the appellants further appealed to this Court entreating it to determine their seven issues. The respondent equally formulated seven issues although couched in a more precise, succinct manner as envisaged by the Rules of Court.
On my part, I find that I have to reformulate these issues if only to accentuate the real questions in controversy, Awojugbagbe Light Ind Ltd v Chinukwe [1995] 4 NWLR (pt 390) 379; A. I. B. Ltd v I. D.S.L. (2012) LPELR -9710 (SC). Before doing that, however, a brief factual background of this appeal may not be out of place.
FACTUAL BACKGROUND
At the trial Court, the appellants, [as plaintiffs], made the case that the grantor of the land in dispute, One Bisiriyu Adetokunbo, had only 3.7 acres of land. These devolved on him by the Idi Igi method of distribution. Prior to his demise, he sold
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portions of the land, as evidenced in Exhibits D2 and D3, to other persons. That was prior to the sale to the respondent. Exhibits D6 and D7, purchase receipts, which the vendor issued to the appellants, were tendered as proof of the appellants’ title. These exhibits were issued before the conveyance, Exhibit D8, was issued.
Exhibits D4 and D5, receipts which the vendor issued to non-parties to the consolidated suits – non-parties who had purchased the vendor’s car and lorry – were tendered in an attempt to prove his [vendor’s] signature. It was equally the appellants’ case that the deceased first appellant was in possession through a house built on part of the land.
The respondent’s case, on the other hand, was that the same vendor, Bisiriyu Adetokunbo,was seised of the land in dispute on a distribution based on the Ori Ojori system. He, the vendor, sold 4.908 acres to her, the respondent; issued her with Exhibit P6, a conveyance dated September 28, 1971 and registered as 55/55/1369 at the Lagos State Lands Registry. Attached to Exhibit P6 is the survey plan of the land, No. CD/52/71 dated March 2, 1971 – measuring 4.0908 acres,
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e\Exhibit P3.
The respondent, further, made the case that, sequel to the purchase, the vendor put her into possession. She has remained in possession and physical occupation of the land. She subsequently established a poultry farm on the land – a farm the appellant, forcibly, entered into and destroyed on January 26, 1993.
She further instantiated other acts of ownership and possession on the land in dispute – caused the property to be valued in 1977 and 1988, Exhibits P1 and P2, which the PWI, who did the valuation, tendered in evidence; established a poultry farm thereat: the farm comprised a feed mill, generator house, security house, plucking house and so on; engaged PW2, a poultry pathologist, to visit the farm regularly in order to take care of the chicks.
In addition, she carried on business on the poultry farm between 1979-1982, citing the testimony of PW4; paid tenement rates on the property, Exhibits 9, 9A – 9D; paid electricity bills, the oldest bill dating back to 1979, Exhibits P8, P8A -P8L; insured the poultry farm, Exhibit 7; got approved building plan for buildings on the land, Exhibits P14 and P15; threat of
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a law suit for the nuisance caused by the poultry farm by O. A. Omolodun, Esq., Barrister-at-Law, Exhibits P13, among other things.
As indicated earlier in this judgement, I have taken the liberty to reformulate the issues if only to accentuate the real questions in controversy, Awojugbagbe Light Ind Ltd v Chinukwe [1995] 4 NWLR (pt. 390) 379; A. I. B. Ltd v I. D. S. L. (2012) LPELR -9710 (SC). Accordingly, this Court will deal with the issues in the following sequence: issue one; two and three together; four and five together; six and seven together.
ISSUES FOR DETERMINATION
ISSUE ONE
- Whether the non-visit to the locus in quo was fatal
APPELLANTS’ CONTENTION
At the hearing of this appeal on January 17, 2019, Bisi Ade-Ademuwagun, learned counsel for the appellant, adopted the appellants’ brief of argument filed on May 28, 1918, although, deemed filed on June 11, 2018.
He contended that, in land matters, there may be a pressing and compelling need for the trial court to pay visit to the locus in quo so as to utilise its visual perception concerning disputed facts or features on the land. This, in his submission, would become
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necessary where the object to be observed is immoveable. Either party may persuade the trial Court, either by their pleading or by oral application. The Court may, suo motu, decide to visit the locus, Section 127 of the Evidence Act; Obi v Mbionwu [2002] FWLR (pt 115) 617; Tepsin v Kya Mwan [2003] FWLR (pt 149) 1517; Osolu v Osolu [2003] FWLR (pt 172) 1777; Umar v Bayero University, Kano (1988) All N LR 301.
He canvassed the view that, to resolve the conflicting claims as to who was in physical possession of the land in dispute, the trial Court ought to have visited the land, Umar v Bayero University, Kano (supra).
RESPONDENT’S ARGUMENTS
Jean Chiazor Anishere, learned counsel for the respondent, adopted the respondent’s brief of argument filed on June 4, 2018 although deemed, properly, filed on June 11, 2018.
In response to the appellants’ contention, she submitted that of who was in physical possession, at the time of the trial, was irrelevant, the respondent having complained of trespass and asked for an injunctive relief.
She further contended that the respondent had so proved her case with credible and weighty evidence that
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creates a vivid picture that the title to the land belongs to her. The appellants, on their part, relied on incredible, weightless and contradictory evidence to prove their title.
It was her submission that, by the evidence of the parties, there was no doubt cast on the mind of the Court. He cited page 21 of the record for the finding of the trial Court. He pointed out that the lower Court, in affirming the said findings, relied on Obi v Mbionwu (supra). What is more, the appellants did not invite the trial Court to visit the locus in quo. She urged the Court to hold that, by virtue of the overwhelming evidence which the respondent adduced at the trial Court, the non-visit to the locus in quo was not fatal. This is because there was no doubt cast in the mind of the Court by the evidence adduced.
RESOLUTION OF THE ISSUE
As shown above, at page 21 of the record, the trial Court, finding that the respondent was a witness of truth, accepted her evidence as to acts of possession. Affirming this finding, the lower Court, [per Saulawa, JCA], had these to say:
The lower Court has found, rightly in my view, that the respondent was a witness of truth
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and thus accepted her evidence as to acts of possession, and that she was at the material time in question in possession of the land in dispute. According to the lower Court, at page 439, lines 15 – 24 of the record:
The law is that if there are two persons on the land each asserting that the land is his and each doing something in assertion of the right of possession and one of them is in actual possession and the other is not, if the question is, which of the two is in actual possession The answer is that the person who has title is in possession and the other is a trespasser. See, Jatau v Danladi [1993] 8 NWLR (pt 415) 597
I think, I cannot agree more with the above finding of the lower Court. Indeed, the law is very much unequivocal on the issue of who is in actual possession, where there are two or more persons claiming ownership of a piece of land. That is to say, the claimant with a better title that’s in possession. See Jatau v Danladi [1993]8 NWLR (pt 45) 579; Kyari v Alkali [2001] 6 NSCQR (pt 2) 819, 856 [2001] 5 SC (pt.11) 192; Mogaji v Cadbury Nig. Ltd [1985] 2 NWLR (pt 7) 393; Da Costa v Ikomi [1968] 1 ANLR 382, 390; Adeniran v Alao
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[2002] 4 WRN 1,9; Hassan v Jauro [2002] 25 WRN 18, 22 [pages 176 – 177 of the record; italics supplied for emphasis].
Against the above background, the lower Court took the view that, by virtue of the overwhelming evidence which the respondent adduced at the trial, there was every cogent reason to hold that the trial Court’s failure to visit the locus in quo did not occasion a miscarriage of justice on the appellant.As indicated earlier, the appellants were dissatisfied with the concurrent findings of the lower Courts. Now, in the first place, quite apart from the fact that they, [the appellants], did not apply for a visit to the locus in quo, Ipinlaiye II v. Olukotun [1996] 6 SCNJ 178, the trial Court entertained no doubts about the veracity of the respondent’s case, page 21 of the record: a stance which received the concurrent affirmation of the lower Court, pages 176 – 177 of the record.
Worse still, the appellants failed, woefully, to perforate the effervescence of the said concurrence by any allusion to their perversity, that is, their persistence in error; different from what is reasonable or required, against weight of
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evidence, Iwuoha and Anor v NIPOST and Anor (2003) LPELR – 1569 (SC) 39 – 40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig,) Ltd. [1985] 3 NWLR (pt.13) 407.
Simply put, they failed to show where the trial Judge took into account matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shorun (1985) LPELR -592 (SC) 31; C-D. That is, they were unable to show that the concurrent findings were perverse findings of facts which were merely speculative and were not based on any evidence before the Court. In other words, that they were unreasonable and unacceptable findings because they are wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v NIPOST and Anor (supra); Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (supra).
As it is well-known, a decision is said to be perverse:(a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) When it has occasioned a miscarriage of justice, Misr
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Ibrahim [1975] 5 SC 55; Incar Ltd.v. Adegboye [1985] 2 NWLR (pt. 8) 453; Atolagbe v. Shorun [1985] 4 SC (pt.1) 250, 282. The appellants failed to demonstrate that the said concurrent findings fall into any of these categories.
Even then, a visit to the locus in quo is not mandatory for it, [the visit], is at the request of both parties. It depends on the state of the evidence, Iwuno and Ors v. Dieli and Ors [1990] 5 NWLR (pt.149) 126; Ukaegbu and Ors v Nwololo [2009]3 NWLR (pt 1127)194. Such a visit is a matter for the discretion of the Judge if he is of the opinion that he will get a better grasp of the evidence that has been adduced before him, Ezeokeke and Ors. v. Uga and Ors. (1962) 1 All NLR (pt. 4) 482, 486; Nwankpu v. Ewulu[1995] 7 NWLR (pt.407) 269. In other words, it is clearly at the discretion of the trial Judge to determine whether in the light of the evidence before him, there is need to resolve, by a visit to the locus in quo, the conflict of evidence or clear a doubt as to the accuracy of a piece of evidence when there is such conflict of evidence, Nwankpu and Anor v Ewulu and Ors (1995) LPELR – 2107 (SC) 38; D – E; [1995] 7 NWLR (pt 407) 269.
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It needs to be emphasised here that an appellate Court will usually not interfere with an exercise of discretion in its quest to obtain substantial justice except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all necessary consideration having regard to the circumstances of the particular case, United Spinners (Nigh. Ltd. v. Chartered Bank Ltd [2001] 14 NWLR (pt. 732)195; Nzeribe v. Dave Engineering Co.Ltd [1994] 8 NWLR (pt. 361) 124.
Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity, Anyah v. A. N. N. Ltd [1992] 6 NWLR (pt. 247) 319; University of Lagos v. Aigoro (supra); Niger Construction Ltd v. Okugbeni [1987] 4 NWLR (pt. 67) 787; 7-Up Bottling Company Ltd v. Abiola and Sons Ltd [1995] 3 NWLR (pt. 383) 257, 285; University of Lagos v. Olaniyan [1985] 1 NWLR (pt. 1) 156. Neither at the lower Court nor before this Court did the
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appellant advance superior or useful arguments capable of moving the Court to interfere with that exercise of discretion of the trial Court.
Thus, circumstances that could warrant such a visit include the following: where there is a conflict of evidence as to the existence or otherwise of something material to the case and such a visit would resolve the conflict in evidence or would clear a doubt as to the accuracy of any piece of evidence on the subject, Seismograph Service (Nigeria) Ltd. v. Akporuovo [1974] 6 SC 119, 128; Seismograph Service (Nigeria) Ltd. v.Ogbeni [1976]4 SCNLR 5, 104 -105; Ipinlaiye ll V Olukotun [1996]6 NWLR (pt. 453) 148; Atumeyi v. Achimugu (1980) NMLR 90, 92.
However, as shown above, that was not the case at the trial Court. Even, at the risk of repetition, I have to call upon the lower Courts to respond to this issue one more time. At page 21 of the record, the trial Court, finding that the respondent was a witness of truth, accepted her evidence as to acts of possession. Affirming this finding, the lower Court, [per Saulavva, JCA], had these to say:
The lower Court has found, rightly in my view, that the respondent
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was a witness of truth and thus accepted her evidence as to acts of possession, and that she was at the material time in question in possession of the land in dispute. According to the lower Court, at page 439, lines 15 – 24 of the record:
The law is that if there are two persons on the land each asserting that the land is his and each doing something in assertion of the right of possession and one of them is in actual possession and the other is not, if the question is, which of the two is in actual possession The answer is that the person who has title is in possession and the other is a trespasser. See, Jatau v Danladi [1993] 8 NWLR (pt 415) 597
I think, I cannot agree more with the above finding of the lower Court. Indeed, the law is very much unequivocal on the issue of who is in actual possession, where there are two or more persons claiming ownership of a piece of land. That is to say, the claimant with a better title that’s in possession. See Jatau v Danladi [1993]8 NWLR (pt 45) 579; Kyari v Alkali [2001] 6 NSCQR (pt 2) 819, 856 [2001] 5 SC (pt 11) 192; Mogajl v Cadbury Nig. Ltd [1985] 2 NWLR (pt 7) 393; Da Costa v Ikomi [1968] 1 ANLR
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382, 390; Adeniran v Alao [2002] 4 WRN 1, 9; Hassan v Jauro [2002] 25 WRN 18, 22 [pages 176 – 177 of the record; italics supplied for emphasis].
The answer to the question whether the non-visit to the locus in quo was fatal is clearly evident. It is not. The trial Court found, a finding affirmed by the lower Court, that the respondent was a witness of truth. Both Courts accepted her evidence as to acts of possession, and that she was, at the material time, in question in possession of the land in dispute.
There was therefore no conflict to be resolved by a visit to the locus in quo, Iwuno and Ors v. Dieli and Ors [1990] 5 NWLR (pt. 149) 126; Ukaegbu and Ors v Nwololo [2009] 3 NWLR (pt.1127) 194; Ezeokeke and Ors. v. Uga and Ors. (1962) 1 All NLR (pt.4) 482, 486; Nwankpu v. Ewulu [1995] 7 NWLR (pt.407) 269. In all therefore, I resolve this issue against the appellant and in favour of the respondent.
ISSUES TWO AND THREE
Whether the lower Court erred when it agreed with the trial Court that the appellants’ document of title, exhibit D8, was inadmissible
APPELLANTS’ SUBMISSION
On this issue, learned counsel for the appellants
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impugned the view of the lower Court at page 178 of the records to the effect that the non-registration of Exhibit D8 rendered it inadmissible by virtue of Section 15 of the Instruments Registration Law of Lagos State. He cited Zaccala v Edosa and Anor [2018] 6 NWLR (pt 1616) 528, 549; Nsiegbe v Mgbemena [2007] 10 NWLR (pt 1042) 364; Int’l ile Ind Nig Ltd v Adereremi [1999] 8 NWLR (pt 614) 268, 294.
In his submission, the appellants, in the instant appeal, by their pleadings, documents and oral testimony at the trial Court adduced cogent and compelling evidence of the purchase of the land; the issuances of documents and the fact that they were put in effective physical possession of the same. They also narrated, he continued, the acts of ownership carried out by themselves and their predecessors-in-title, especially, the original first appellant at the lower Court, one Alhaji Jubrilla Abdullahi.
He contended that the effect of the instrument of title (although not registered) coupled with physical possession had created an equitable interest in favour of the appellants, Zaccala v Edosa (supra). He pointed out that the original first appellant (of
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the blessed memory) acquired his title to the land in dispute in 1969. On her part, the respondent claimed to have purchased in 1971. Both parties claimed to have derived their title from a common grantor. He took the view that equity of priority as well as that of memo dat quod non habet are in favour of the appellant, Zaccala v Edosa (supra). Pages eight and Nine were devoted to the third issue.
RESPONDENT’S CONTENTION
The learned counsel for the respondents, on her part, pointed out that, at the trial Court, the parties formulated several issues for determination. One of them was the issue of who has title to the land. In its resolution of the issue, the trial Court considered the purported deed of assignment tendered as Exhibit D8.
The trial Court, she indicated, first considered the question whether the plan attached to the said Exhibit D8 was irregular and whether the said irregularity affected the validity of Exhibit D8. It, the said Court, then turned to the issue of nonregistration of the exhibit pursuant to the Land Instruments Registration Law. The Court then dealt with the question whether the said document was admissible for the
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purpose of proving an equitable interest, pages 14 – 15 of the record.
She explained that the trial Court held that the testimony of DW1 was unreliable for the purpose of establishing the authenticity of Exhibit D8. It therefore discarded his [DW1’s] testimony, issues affirmed by the lower Court, pages 178 of the record. She pointed out that the document was rendered inadmissible by virtue of the provisions of the Land Instruments Registration Law of Lagos State. The Court, she maintained, held the document inadmissible based on the totality of the above facts. She pointed out that in Zaccala v Edosa and Anor (supra); Nslegbe v Mgbemena (supra), this Court held that a party relying on an unregistered registrable instrument, must also prove that he has paid and taken possession of the land.
In the instant case, she maintained, the appellants failed to lead evidence that they were in possession of the land. Above all, receipts which they tendered as Exhibits D6 and D7 were held to have been prepared for the purpose of litigation and, as such, of no evidential value. Exhibit D8, in her submission, was inadmissible. Paragraphs 6.01-6.04, pages 11-12 of
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the Brief were devoted to the third issue.
RESOLUTION OF THE ISSUE
The arguments under this issue are almost ubiquitous arguments in land matters. I must note right away, that the admissibility or otherwise of an unregistered registerable instrument depends on the purpose for which it is being sought to be admitted, Akintola v. Solano [1986] 2 NWLR (pt.24) 598; Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo [1992] 2 NWLR (pt. 226) 690; Oredola Okeya Trading Co. v. Attorney General, Kwara State [1992]7 NWLR (pt. 254)412; Co-operative Bank Ltd v. Lawal [2007]1 NWLR (pt.1015)287; Etajata v. Ologbo [2007] 16 NWLR (pt.1061) 554; Gbiniie v. Odji [2011] 4 NWLR (pt.1236) 103.
An unregistered registrable instrument, sought to be tendered for the purpose of proving or establishing title to land or interest in land, would be inadmissible under Section 15 of the Land Instruments Registration Law, Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra).
Such a document, derided as an “amorphous document,” Umoffia v Ndem [1973] 12 SC
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(Reprint) 58, is not receivable in evidence for the purpose of establishing any right, title or interest in land being unregistered, Section 15, Land Instruments Registration Law , Umoffia v Ndem (supra).
If it is however tendered to show that there was a transaction between the lessor and the lessee, it will be admissible as a purchase receipt. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded. Under these two conditions, such a document does not qualify as an instrument as defined in the Land Instruments Registration Law, Okafor v. Soyemi [2001] 2 NWLR (pt. 698) 465; Agboola v. United Bank for Africa Plc [2011] 11 NWLR (pt.1258) 375; Abu v. Kuyabana [2002] 4 NWLR (pt. 758) 599.
Other cases include, Akingbade v. Elemosho (1964)1 All NLR 154; Olowolaramo v. Umechukwu [2003] 2 NWLR (pt. 805) 537; Mojekwu v. Mojekwu [1997] 7 NWLR (pt. 512) 283; Tella v. Usman [1997] 12 168; Ole v. Ekede [1991] 4 NWLR (pt. 187) 569; Tewogbade v. Obadina [1994] 4 NWLR (pt. 338) 326.
Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it
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is tendered, not as an instrument affecting land but only to establish evidence of a transaction between the parties, Obienu v. Okeke [2006] 16 NWLR (pt. 1005) 225; Monkom v. Odili [2010] 2 NWLR (pt. 1179) 419; Agwunedu v. Onwumere [1994] 1 NWLR (pt.321) 375; Abu v. Kuyabana [2002] 4 NWLR (pt. 758) 599.
In effect, when a Court is determining whether or not to admit or reject an unregistered registrable instrument, it has to consider the purpose and the use to which it is being put, Ole v. Ekede [1991] 4 NWLR (pt. 187) 569. In the vocabulary of pleadings, the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title, Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere [1994] 1 NWLR (pt 321] 375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74; Oni v. Arimoro (1973) NMLR 237; Akingbade v. Elemosho (1964) I All NLR 154.
The explanation is simple. The filing of pleadings is primarily, to settle issues between the parties, Osuji v. Ekeocha (2009) LPELR – 2816(SC); [2009] 16 NWLR (pt.1166) 81; Nwokorobia v. Nwogu and Ors (2009) LPELR -2127 (SC); [2009] 10 NWLR (pt.1150) 553. Thus, if a
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document is pleaded, it must be for a particular purpose. As such, a document pleaded as transferring interest in land to a party cannot be considered for other purposes not pleaded, Edohoeket v. Inyang [2010] 7 NWLR (pt. 1192) 25; Gbinijie v. Odji [2011]4 NWLR(pt.1236)103; Onwumelu v. Duru [1997] 10 NWLR (pt. 525) 377; Agbodike v. Onyekaba [2001] 10 NWLR (pt. 722) 576; Commissioner for Lands and Housing Kwara State v. Atanda [2007] 2 NWLR (pt. 1018) 360.
Sequel to the above ratiocinations, I now turn to the posture of the lower Court. At page 177 – 178 of the record, the lower Court had this to say:
The fourth issue raises the question of whether the interest conveyed in Exhibit D8 to the original First respondent (deceased) was void because of the discrepancy alleged to have been noticed in the said exhibit and the survey plan attached thereto.
Instructively, the [trial Court] found as a matter of fact at pages 394- 395 of the record that –
The plan attached is dated 1986 but Exhibit D8 was made in 1969. The date on the conveyance and the survey plan are not the same. The plan was prepared in 1969 but signed by the surveyor seventeen
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years later in 1986.
The above discrepancy regarding the dates in the two documents was adjudged by the lower [trial] Court to have rendered Exhibit D8 ineffective.
What is more, the said Exhibit D8 was a registrable instrument by virtue of the provision of Section 15 of the Instruments Registration Law of Lagos State, as amended. However, by the non-registration thereof, Exhibit D8 has been rendered rather inadmissible… [Italics supplied for emphasis]
From their pleadings and oral evidence, it is not in doubt that the said exhibit, [that is, Exhibit D8], was pleaded and sought to be tendered in evidence for the purpose of proving or establishing title to the land or interest in the land in dispute. The lower Courts were, therefore, right in their positions that it was inadmissible by virtue of its non-registration, being a registrable instrument, Akintola v. Solano (supra); Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo (supra), Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra); Umoffia v Ndem (supra).
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I find no merit in the appellants’ complaint in issues two and three.
ISSUES FOUR AND FIVE
Whether the lower Court did not cause substantial miscarriage of justice when it failed to consider properly issues canvassed by the appellants relating to Grounds 1, 3 and 4 of the Notice of Appeal before it
The main complaint under this issue is that the lower Court was under obligation to consider all the issues presented to it for determination. He cited several authorities. On issue five, learned counsel cited Ngere v Okuruket XIV [2015] 15 NWLR (pt 1482) 392.
RESPONDENT’S ARGUMENTS
For the respondents, it was pointed out that the lower Court drew attention to the appellant’s failure to distil issues specifically from the Grounds of the Notice of Appeal. The Court, it was pointed out, still proceeded to determine the appeal based on the issues presented by the appellants, citing page 168 of the record. On issue five, counsel referred to page 24 of the record.
RESOLUTION OF THE ISSUE
At page 168 of the record, the lower Court had this to say:
I have discovered that none of the six issues formulated in the appellants’ amended
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brief has been distilled from the grounds of the notice of appeal. Undoubtedly, this is a typical example of a bad drafting skill.
As a matter of general principle, issues formulated in a brief of argument must be distilled from specific grounds of a notice of appeal, otherwise, they should be deemed at large, and liable to be discountenanced. However, unlike the appellants, the respondent has commendably distilled the four issues formulated in the brief thereof from specific grounds of appeal, in strict compliance with the general principles alluded to above. I have nevertheless deemed it expedient to determine the appeal on the basis of the issues raised in the appellants’ brief [Italics supplied for emphasis].
My Lords, from the approach of the lower Court, it is not in doubt that the said Court was even over indulgent to the appellants. Indeed, this issue reminds me of the eloquent formulation of this Court in Adebayo v AG, Ogun State (2008) LPELR – 80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso:
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I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.
They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking. [Italics supplied for emphasis]
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From all indications, the appellants had “nothing useful to advocate in favour of [their appeal] … [Accordingly, they are advised to] leave the fair hearing constitutional provision alone because it is not available to [them] just for the asking.” What is even more, a reference to page 24 of the record would disclose that the appellants were just being disingenuous under their issue five.
Thereat, the trial Court, after disposing of the issues in Suit No ID/855/93, proceeded to consider Suit No ID/216/93. Hear this:
Having succeeded in her claim for trespass, the plaintiff is entitled to an order of injunction restraining the defendant in ID/855/93 and plaintiff in ID/216/93 from further acts of trespass on the land in dispute.
I now come to the judgement in respect of Suit No ID/216/93. Suits are consolidated for the convenience of the parties and to reduce the cost of litigation. The consolidated suits still retain that separate identities. [Italics supplied for emphasis]
In effect, the learned counsel for the respondent was right in her submission that the Court made pronouncements on each case. I resolve this issue against
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the appellant and in favour of the respondent.
ISSUE SIX AND SEVEN
On these issues, the appellants’ main complaint was that the trial Court failed to discharge its duty of ascribing value to the evidence.
The respondent’s response does not need to delay us here.
RESOLUTION OF ISSUES
It has long been established that the function of the evaluation of evidence is essentially that of the trial Court, Igago v State (1999) LPELR – 1442 (SC) 27; Onuoha V. The State [1998] 5 NWLR (pt. 548) 118. Where the trial Court has unquestionably, evaluated evidence and, justifiably, appraised the facts, it is not the business of an appellate Court to interfere, and to substitute its own views for the view of the trial Court,Woluchem v. Gudi [1981] 5 SC 291; Enang v. Adu [1981] 11-12 SC 25; Abisiv. Ekwealor [1993] 6 NWLR (pt.302) 643; Okolo v. UBN Ltd [1998] 2 NWLR (pt. 539) 618; UBN Plc v. Borini Prono Co. Ltd [1998]4 NWLR (pt. 547) 640.
Accordingly, an Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence, improperly, evaluated or not evaluated. He has to show,
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convincingly, that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation. The appellants failed woefully in this regard. There was no particularization of the evidence wrongly evaluated,Dakur v. Dapal [1998] 10 NWLR (pt. 571) 573. They have accordingly failed to discharge the onus on them that, if properly evaluated, the conclusion would have been favourable to their case, Dakur v. Dapal (supra).
The net effect is that there is no merit in their complaints in these as well.
Having resolved all the issues against the appellants, I have no hesitation whatsoever in entering an order dismissing this appeal. Appeal dismissed. Costs against the appellants, in favour of the respondent, which I assess and fix at N1,000, 000 only. Appeal dismissed.
SC.132/2013
