Dr. S.U. Isitor V. Mrs Margareth Fakarode (2007)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal against the judgment of the Kaduna State High Court of Justice delivered by Honorable Justice Dalhat Ja’afaru in Suit No. KDH/KAD/921/99 on the 15th day of April, 2002. The facts of this case as can be gathered from the record of proceedings and the parties’ brief before the court are as follows:-

The respondent as plaintiff at the trial court, commenced an action against the appellant as defendant claiming as per paragraph 15(1) – (7) of the amended statement of claim dated 10th October, 2001 thus:-

“1. A DECLARATION that the defendant’s action in entering into and continuing the erection of structures on the property of the plaintiff No. R.27, Giraji Abdulwahab Road, Mando, Kaduna without the consent and authority of the plaintiff constitutes trespass.

2. A DECLARATION that the plaintiff is the legal owner of the other part of the property now known and referred to as NO.R.27 Giraji Abdulwahab Road, Mando, Kaduna respectively, the said property being carved out of her larger plot which was sub-divided into plots Nos. R.26 and R.27 respectively.
3. A DECLARATION that the purported sale or assignment of the said plot No. R.27 Giraji Abdulwahab Road, Mando, Kaduna to the defendant by person other than the plaintiff is illegal, null, void and of no effect whatsoever.
4. An ORDER of perpetual injunction restraining the defendant either by himself, agent, servant or privies or anybody whatsoever, from further trespass, entering into or carrying on any construction/building on the said property.
5. An ORDER setting aside the purported sale of the said property to the defendant
6. An ORDER directing the defendant to vacate the said property forthwith;
7. GENERAL DAMAGES of N500,000.00 for trespass against the defendant jointly and severally.”

In support of her case, the respondent testified for herself as PW1 and tendered four exhibits. The appellant despite the service of writ of summons and hearing notices on him failed and or refused to file memorandum of appearance and statement of defence. He did not defend the suit in any form or manner.

At the close of the case, the learned counsel to the respondent addressed the court and the trial Judge delivered his judgment on the 15th day of April, 2002 in favour of the respondent by granting reliefs Nos. 1, 2, 4 & 6 of paragraph 15 of the amended statement of claim and dismissing reliefs Nos.3 and 5 thereof.

Being dissatisfied with the judgment, the appellant has appealed to this Honorable Court vide a Notice and Grounds of Appeal dated the 15th day of October, 2004 filed pursuant to the leave of this Honorable Court granting the appellant enlargement of time within which to appeal against the aforesaid judgment.

We heard this appeal on 30th January, 2007. Mr. G.E.I Iyoke counsel for the appellant adopted his brief of argument dated 7th February, 2005 and filed on 9th February, 2005 and urged the court to allow the appeal and set aside the judgment of the lower court. Mr. T. Oladoja counsel for the respondent filed his brief of argument dated 22nd November, 2006 and deemed filed on 24th January, 2007. Counsel adopted the brief of argument and urged the court to dismiss the appeal.

Upon the five grounds of appeal as contained in the Notice of Appeal filed by the appellant dated 15th October, 2004, learned counsel for the appellant formulated three issues for determination. The Issues are:-

“1. Whether considering the cause of action which requires proof of title and injunction the respondent met the minimum standard of proof in such matters in the absence of proof by the respondent of the identity of the land in issue or of the 5 methods set out in the decided authority of Idundun V Okumagba (1976)1 NMLR 2000.

2. Whether the admittance and reliance of the trial court on documents of title to land which documents were neither stamped, registered and unrelated to the land in dispute is proper.
3. Whether the failure of the trial court to properly evaluate the document admitted in evidence before it in order to test their cogency and credibility before finding on them is proper.”

The respondent also formulated three Issues for determination. The Issues are stated thus:-

“1. Whether in view of the state of pleadings and the evidence adduced, the learned trial Judge was right in granting title to the disputed land in favour of the respondent.

2. Whether in view of the state of pleadings and evidence led, the identity of the land claimed in dispute was unascertainable.
3. Whether Exhibits 1, 1A and 4 are inadmissible in law.

The Issues formulated by the appellant and the respondent are not exactly dissimilar accordingly, the Issues as formulated by the appellant would adequately dispose of this appeal.

Issue No.1 – Whether considering the cause of action which requires proof of title and injunction the respondent met the minimum standard of proof in such matters in the absence of proof by the respondent of the identity of the land in issue or of the 5 methods set out in the decided authority of Idundun V Okumagba (1976)1 NMLR 2000.

On this Issue, learned counsel for the appellant submits that having failed to prove the identity of the land and also establish her title by any of the five methods as established in Idundun V Okumagba (supra) which principle were applied by this Court in Olumogba & 2 Ors V Isreal J. Ohwozo & Anr (2000) (pt.17) FWLR 176, the decision of the lower court was wrongful. That on the identity of the land, the learned trial Judge had found correctly in holding at page 96 (paragraph 4) that:-

“The two exhibits (supra) did not show where the plot of land is situated.”

That the correctness of the said position of the trial court is affirmed as the said Exhibits 1 & 1A indeed do not disclose the location address or description of the land in dispute. Counsel contends that curiously, the trial court found (at page 96, paragraph 4) without showing how, as follows:

(1) “That the plaintiff has however shown that Exhibits 1 & 1A relate to a plot of land known as R.26 Giraji Abdulwahab Road”. That the respondent’s testimony here relates to plot R.26 and not the subject land i.e. R.27.

(2) That ‘similarly the Exhibit 4 showed the land in dispute’. That this exhibits it is respectfully submitted does not relate to the land in dispute which is R.27.

Learned counsel for the appellant submits that none of the exhibits 1, 1A & 4 define or disclose the identity of the subject land. Therefore it is wrong to use any evidence outside the contents of those to prove the identity of the land. Counsel rely respectfully on Section 132(1) of the Evidence Act Cap 112 and the decision of this Court in Suberu V Co-operative Bank Ltd (2004) (Pt.236) All FWLR 383 and urged the Court to hold that the finding of the lower court that ‘the plaintiff has however shown that Exhibit 1 and 1A relate to a plot of land known as R.26, Giraji Abdulwahab Road’, was not borne out by the evidence before it and even if so it is not relevant to the case before it.

Further, it is submitted for the appellant that even if oral evidence of the plaintiff could be used in the circumstances, such testimony must be such as prove with graphic details and clarity – the address, location, size and dimensions of the subject land. That these were neither disclosed in the exhibits nor in the oral evidence of the respondent before the lower court. Counsel urged us to hold that the respondent did not proof the identity of the land – reference made to Babatola V Oba Aladejama 6 NSCQR 1017 at 1027-1028; Odofin V Oni 5 NSCQR 67 at 79. Counsel for the appellant contends that having failed to prove the identity of the land, the respondent’s claim ought to have been dismissed – reference made to Lordye V Ihyam 4 NSCQR 209.

It is the argument of counsel to the appellant that even if the respondent had proved the identity of the land in dispute, that on its own is insufficient to entitle her to declaration of title as granted by the lower court. That the respondent ought to proceed further to satisfy the standard of proof required in land matters as established in Idundun V Okumagba (supra) that this the respondent failed to do for the following reasons –

1. No evidence or facts of the traditional history of the land in evidence before the court. That the respondent only gave evidence of the fact that she purchased a land from one Usman Adamu without more. That for the respondent to satisfy this condition, she ought to give traditional history of the devolution of the land to her predecessor in title – reference made to Sekoni V Ogunmola (2004) (Pt.234)All FWLR 1956 at 1964; Eze V Atasie (2000) FWLR (Pt.13) 2180; 2000 NWLR (Pt.676) 470 at 482; 2000 6 SC 214 at 220. Counsel contends that nowhere in her pleadings did the respondent plead the names of the persons on whom the land devolved before the interest of her predecessor in title. That the respondent led no evidence in this respect.
2. The respondent did not produce authenticated documents of title in proof of her case. The respondent tendered Exhibit 1, a sale agreement written in foreign language; counsel argues that Exhibit 1A is the interpreted version of Exhibit 1 which seeks to give life to Exhibit 1. That this Exhibit does not disclose the particulars of the land nor was it registered as required by law that this disqualifies it as a document of title within the meaning of Section 15 of the Land Registration Law Cap 85 of Kaduna State.

Further, it is submitted for the appellant that the said Exhibit 1A is invalid as its interpreter was not called as witness as required by law. That the document is hearsay evidence and therefore inadmissible – reference made to Olalekan V The State 12 SCNJ 97 at 107-108. Further it is argued for the appellant that the respondent ought to establish the validity of the Exhibits -reference made to Romaine V Romaine (1992)5 SCNJ 25 at 36. That the trial Judge failed to test the validity or genuinnes of Exhibit 1. That the exhibit having been altered by modifying it to include the respondent’s name is invalid as a reliable document – reference made to Section 128(1)(4) of the Evidence Act Cap 112 LFN 1990.

3. No proof of sufficient or numerous and positive acts of ownership. Counsel submits that the respondent did not disclose or prove any act of ownership exercised by her over the subject land. That the only evidence she led in this respect is contained in Exhibit 2 where an uncertain person requested for payment in respect of a project at Mile 3, Mando, Kaduna. That it is apparent from Exhibits 2, 3A & 4 that the respondent’s acts of ownership do not extend to the subject plot R.27.
4. Even if the above acts of ownership were in respect of the subject land, they do not amount to acts of long possession. It is the contention of the counsel to the appellant that the respondent did not prove the enjoyment of the land between 1976/84 and between 1984/98. That the respondent only stated in her testimony she started work on a land.
5. The respondent did not prove the possession of connected or adjacent land. Counsel submits that the respondent was unable to establish the identity of the land and the origin of her title therefore the judgment of the lower court could be set aside – reference made to Olohunde V Adeyonju (2001) FWLR 1355 at 1376-1377. That being a claim for declaration of title, the plaintiff/respondent can only establish her case by her evidence notwithstanding the absence of the appellant’s defence – reliance placed on Echi V Nnamani (2000) (Pt.13) FWLR 2159 at 2171.

Learned counsel for the appellant urged us to resolve Issue NO.1 in favour of the appellant.

In reply to the submissions of the learned counsel to the appellant, learned counsel to the respondent submits that in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the amended statement of claim, the respondent pleaded that she acquired title to the land in dispute having purchased same from Usman Adamu at a consideration of N400.00. That the appellant did not file a statement of defence to deny those averments hence he did not join issues with the respondent.

Learned counsel for respondent submits that by a long list of decided cases by the Supreme Court, it is now settled law that there are five different ways of establishing title to land as enunciated in Idundun V Okumagba (1976) NMLR 200 at 210 also referred to are Mogaji V Cadbury Nig Ltd (1985)2 NWLR (Pt. 7) 393; Alli V Alesinkoye (2000)6 NWLR (Pt. 600)177; Eze V Alatise (2000)10 NWLR (Pt. 676) 450; Kyari V Alikali (2001) 11 NWLR (Pt. 724) 412 at 439 paras D-G. That each of the five methods by ownership of land may be proved will suffice independently of the others to prove title to land – reference made to Ojelade V Sonuya (1998)5 NWLR (Pt.549) 284; Opara V Schlumberger (1995)4 NWLR (Pt.390) 440; Nnadi V Okoro (1998) 1 NWLR (Pt.535) 575; Ogunro V Arowolo (1998)6 NWLR (Pt.552)78. Counsel submits that the law is clear that in an action of declaration of title to land, the plaintiff succeeds on the strength of his case and not on the weakness of the defence – reference made to Kodinliye Ubane V Uwakafor (1963)1 ALL NLR 417; Eze V Alatise (supra); Adone V Ikebodu 14 NWLR (Pt.733)385 at 409. That it is trite law that civil cases are not decided on proof beyond reasonable doubt but on balance probabilities and the principle applies even where a declaration of title to land is involved. That what is required of a plaintiff in an action for declaration of title is at least, to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. Counsel for the respondent contends that the burden is on a plaintiff to prove his case in a land matter and when he fails to do this, he cannot rely on the weakness of the defendant’s case. In that sense the defendant bears no burden to any evidence or satisfactory evidence. That where however a plaintiff has produced evidence in support of his case which prima facie will entitle him to judgment, the defendant will need to lead some evidence to enable the court to consider on whose side the case preponderates -reference made to Adeleke V Iyanda (2001)13 NWLR (Pt.729)1; Aromire V Awoyemi (1972)2 SC 1. Counsel to the respondent argues that the test is whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. Thus, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. The only difference rests on the facts that the burden of proof is on the plaintiff and that never shifts to the defendant throughout the trial. The difference, therefore, lies not in the standard of proof, but on the burden of proof – reference made to Kaiyada V Egun (1974)12 SC 55.

It is submitted for the respondent that the evidence of PW1 as to who sold the land in dispute was not contradicted by any admissible evidence. Where evidence given by a party is not contradicted by any admissible evidence, the court is bound to accept and work on that evidence. The trial court was therefore bound to accept and act upon her evidence that the respondent bought the land in dispute from Usman Adamu – reference made to Kosile V Falarin (1989)3 NWLR (Pt.107)1; Buraimoh V Bamgbose (1989) NWLR (Pt.109) 352. Further, counsel to the respondent argues that it is trite law that where the plaintiff has adduced admissible evidence which is satisfactory in the con of the case and none is available from the defendant, the case would be decided upon a minimum of proof. That this position of the law was rightly applied by the learned trial Judge. That in the present case, there is no admissible evidene adduced by the appellant to compete with that of the respondent’s as to the party entitled to the land in dispute. In the circumstances therefore it is contended the scale tilts in favour of the respondent.

It is further contended for the respondent that the respondent led credible and unchallenged evidence establishing possession of the land in dispute. That whether an act is sufficient to establish possession is a question to be decided on the merit of each case. That instance of cultivation of piece of land, evacuation of building or a fence and even demarcation of land with pets at its comers have all been held to be evidence of possession. A person can be in possession through a third party such as a servant, agent or deemed to be continued by his successor -reference made to Alatishe V Sanyaolu (1972)2 SC 97; Ajero V Ugorji (1990)10 NWLR (Pt.621)1. Counsel for the respondent contends that in this appeal, the respondent adduced credible uncontradicted evidence of how she developed the land in dispute to German floor level after she purchased the land in 1976 thus:-

“Robson Construction Company constructed the building and the German floor. I awarded the contract to them. Here is a letter from the Company when the construction was going on.”

It is the submission of counsel to the respondent that by reading Exhibit 1 and 1A along with Exhibits 2, 3, 3A and 4 it is very apparent that all the exhibits clearly and conclusively showed that the respondent indeed owned and possessed the land in dispute. That it is in view of the unchallenged and positive evidence placed before the trial court that the learned trial Judge was right in making the following findings –

“Be that as it may, the plaintiff has proved her ownership of plot N.R.27 Giraji Abdulwahab Road (sic) she has also proved acts of trespass. She is therefore entitled to reliefs Nos.(1), (2), (4) and (2) of paragraph 15 is of the amended statement of claim dated the 10th day of October, 2001.”

On the nature of possession required to ground claim for trespass, learned counsel for the respondent referred to Alatishe V Sanyaolu (1964)1 All NLR 398 at 400; Adewole V Dada (2003)4 NWLR (Pt.810)369 at 379.

The crux of the appellant’s complaint in Issue No.1 is whether considering the cause of action, which requires proof of title and injunction, the respondent met the minimum standard of proof in such matters in the absence of proof by the respondent of the identity of the land in issue or of the 5 methods set out in the decided authority of Idundun V Okumagba (1976)1 NMLR 200.

There are two legs to this issue: the first leg concerned proof of ownership of the land in dispute and the second leg involved the proof of identity of the land in dispute.

On the first leg that is proof of ownership of the land in dispute – it is now settled that there are five ways to which ownership of land may be proof as set out in the case of Idundun V Okumagba (1976) NMLR 200 at 210 – the five ways are stated thus:-

FIRSTLY ownership of land may be proved by traditional evidence.

SECONDLY ownership of land may be proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved.

THIRDLY acts of ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the person is the true owner.

FOURTHLY acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land.

FINALLY proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

It is trite law that each of the five methods by which ownership of land may be proved will suffice independently of the others to prove title to land. See Ojelade V Sonuya (1998)5 NWLR (Pt. 549)284; Opara V Schlumberger (1995)4 NWLR (Pt. 390)440; Nnadi V Okoro (1998)1 NWLR (Pt. 535)575; Ogunro V Arowolo (1998)6 NWLR (Pt. 552)78.

In the appeal at hand, the respondent by paragraph 15 of his amended statement of claim dated 10th day of October, 2001 claimed seven reliefs – claims 1 & 2 are relevant to the complaint of the respondent in Issue NO.1 under consideration and they are stated thus:-

1. “A Declaration that the defendant’s action in entering into and continuing the erection of structures on the property of the plaintiff NO.R.27 Giraj Abdulwahab Road, Mando, Kaduna without the consent and authority of plaintiff constitutes trespass.
2. A Declaration that the plaintiff is the legal owner of the property now known and referred to as No. R.27 Giraj Abdulwahab Road, Mando, Kaduna respectively the said property being carved out of her larger plot this was sub-divided into plots Nos R.26 and R.27 respectively.”

The purport of the two claims stated above is clear. They intended to show that the respondent is the legal owner of the property in dispute and by entering and continuing the erection of structures on the property without the consent and authority of the respondent, the action of the appellant constitute trespass.

To establish ownership over the disputed property the respondent gave evidence as PW 1 and stated that she bought the land from one Usman Adamu the owner on 18/2/1976. That she bought the land at a cost of N400.00 and she commenced building up to lintel level i.e. R.27. She also constructed a German floor on the second plot i.e. R.26. The partitioning of the plot according to her was done by the defendant – she tendered a copy of the sale transaction which is in Hausa language. It was marked Exhibit 1 while the English translation was admitted as Exhibit 1A. The respondent as PW1 further showed that Rabson Construction Company was engaged by her for the purpose of constructing the building and the German floor she tendered a copy of a letter of demand for payment and dated the 14/9/84 and it was admitted as Exhibit 2. She also tendered two replies written to her solicitor by the solicitors to the appellant and Mr. Akinola Gbenga. The two replies were admitted as Exhibit 3 and 3A.

The above unchallenged and uncontradicted testimony of the appellant is in line with her pleadings and claim NO.2 to the effect that she is the legal owner or at best the equitable owner of the property in dispute. What is required of the respondent in an action of declaration of ownership of land is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. Where however the plaintiff has produced evidence in support of his case which prima facie will entitle him to judgment, the defendant will need to lead some evidence to enable the court to consider on whose side the case preponderates. See Adeleke V Iyanda (2001)3 NWLR (Pt.729)1; Aromire V Awoyemi (1972)2 SC1.

In the appeal at hand, there is no admissible evidence by the appellant to compete with that of the respondent as to the party entitled to ownership of the land in dispute. In this circumstance the scale tilts in favour of the respondent. Therefore the evidence of the respondent before the trial court stands unchallenged and uncontradicted. The law is that where evidence given by a party is not contradicted by any admissible evidence, the court is bound to accept and act on that evidence. The trial court was therefore bound to accept and act upon the evidence of PW1 adduced before it that the respondent bought the land in dispute from Usman Adamu. See Kosile V Falarin (1989)3 NWLR (Pt. 107)1; Buraimoh V Bamgbose (1989) NWLR (Pt. 109)352. The respondent led credible and unchallenged evidence establishing legal ownership or at best equitable ownership of the land in dispute and in the absence of any admissible or superior evidence for the appellant, the trial court was perfectly right in giving judgment in favour of the respondent upon a minimum of proof.

The second leg of Issue No.1 is on the contention of learned counsel to the appellant that the identity of the land in dispute has not been established. The law is that in an action which seeks for declaration of ownership of land, the burden to prove the identity and boundaries of the land in dispute is on the claimant which burden should be discharged either by oral description of the land or survey plan showing clearly the area to which his claim relates. See Sawi V Ogunbode (2001)8 NWLR (Pt. 714) at 74.

In the instant appeal from the evidence placed by the court the identity of the land in dispute is not in doubt. The unchallenged evidence of PW1 described the land in dispute as follows:-

“The plot was at Giraj Abdulwahab Road i.e. No. 26. The second one R. 27. The work is going on and is yet to be completed.”

Further, PW1 emphatically in her testimony said thus:-

“I pray for an order of court enabling me claim my property from Dr. S.U. Isitor. The property is at 27 Giraj Abdulwahab Road, Mando, Kaduna.”

In the course of the respondent’s further evidence as PW1 she stated thus:-

“I bought the plot at a cost of N400.00 the plot was originally one. I built one to lintel level then one (sic) I built R.27 while I only constructed a German floor in R.26 I did not do the partitioning. It was the defendant that did the partitioning.”

Exhibit 3 which is the reply by Iyoha Iyoke Esq the appellant’s counsel in this appeal in 1998 shows that the identity of the land in dispute was never in doubt. From the foregoing, the land in dispute has been described with clarity and certainty as required by law. Expectedly therefore, the trial court was right to have found thus:-

“In a nutshell, identity of the disputed Land i.e. No.27 Giraj Abdulwahab Road Mando, Kaduna has been Established by the plaintiff.”

With the foregoing, Issue No.1 is resolved against the appellant in favour of the respondent.

Issue No.2 – whether the admittance and reliance of the trial court on documents of title to land which were neither stamped, registered and unrelated to the land in dispute is proper.

On Issue No.2 learned counsel for the appellant submits that Exhibits 1, 1A, 2 and 4 are not legally admissible. Exhibits 1 and 1A were neither stamped nor registered contrary to the provisions of Section 15 of the land Registration law Cap 85 of Kaduna State. That the said exhibit not having been stamped and registered was wrongly admitted and relied upon by the lower court reliance placed on Romaine V Romaine (supra).

Further, counsel for the appellant contends that even if stamped and registered, Exhibit 1 is invalid as its contents are unknown to court. That even if the contents are disclosed in Exhibit 1A, in the absence of interpreter’s testimony, the document is hearsay – reference made to Olalekan V The State (supra). It is also submitted for the appellant that beside the foregoing facts Exhibit 2 & 4 do not relate to the land in dispute. That Exhibit 4 is not tenable as a document of title and it cannot be utilized to prove the fact of settlement of dispute on R.26 as the erstwhile 1st defendant was never brought before the court. No evidence of his attendance to court or of the fact that there was any initiative to resolve the matter out of court. That by admitting and relying on Exhibit 4 the learned trial Judge took cognizance of a fact that was not before him, they cannot therefore be utilized to establish title to the land in dispute in this case. Counsel contends that the trial Judge erroneously admitted the said Exhibits – reference made to Adeleke V Iyanda (2001) 4 SCN J 118. Counsel argues that the said document was purportedly admitted under Section 97(1) of the Evidence Act without satisfying the provisions of Section 97(1) (c). That in her testimony, the witness neither asserted the loss or destruction of the original Exhibit 1 she only alleged the misplacement and did not testify as to the efforts she made or was making to locate it. Counsel submits that the fact of misplacement is not sufficient a foundation to justify the admission of the photocopy of the original document particularly as the witness did not disclose how she obtained the copy. Reference made to Opawaye V Tunbi (2004) All FWLR 1841. Learned counsel for the appellant also argues that Exhibit 1A which derived its life from Exhibit 1 cannot survive as Exhibit 1 has no life of its own to give. That the Exhibit was simply and inexplicably admitted suo motu. That the Exhibit was not pleaded neither did the witness introduce it nor did she at any point in her testimony refer to or show how it was derived. Besides, the respondent’s counsel did not at anytime seek to tender it. That the said Exhibit 1A is a purported English version of Exhibit 1 written in Foreign Languages – the interpreter was not called. Submits that having regard to the nature of Exhibit 1A, it is not enough that the original is produced or tendered. More than this, the witness ought to identify the maker (interpreter) and show him as having personal knowledge of the contents of Exhibit 1 &1A. Counsel contends that the lower court failed to satisfy the requirements of Section 91(1) of the Evidence Act and urged the court to expunged the said Exhibits from the record – reference made to IBWA V IMANO LTD 5 NSCQR 777 AT 792. Counsel urged us to resolve Issue NO.2 in favour of the appellant.

In reply to the submissions on Issue NO.2, learned counsel to the respondent submits that it is trite law that by virtue of Section 15 of Land Instrument Registration Law, Exhibit 1 cannot be pleaded or even given in evidence unless it is registered. However, there is an exception to the general law under which a registrable instrument which has not been registered is admissible in order to prove an equitable interest and payment of purchase money or consideration. Learned counsel to the respondent submits that Exhibit 1 on the face of it is clearly a purchase receipt of agreement evidencing the purchase of the said plot by the respondent from the original owner Alhaji Usman Adamu.

That it is trite law that it is the purpose of admissibility that matters even if the document is registrable instrument. In other words, whether a registrable instrument is registered or not, it can be admitted in evidence depending on the purpose for admission – reference made to Abu V Kuyanbana (2000)4 NWLR (Pt.758)599 at 615-616; Agwunedu V Onwumere (1994)1 NWLR (Pt.321)375 at 177-178.

It is submitted for the respondent that she pleaded paragraphs 3 and 4 of the amended statement of claim that she purchased the said land from the original owner and also she will be relying on the purchase document written in Hausa Language and the translated English version at the hearing of the suit. While testifying as PW1, the respondent stated this before tendering the purchase document written in Hausa along with the English version for admission in evidence thus:-

“The sale was evidenced in writing. It was written in Hausa Language. The original of the document is misplaced but however I have a photocopy I can identify the photo copy.”

Learned counsel for the respondent submits that it is apparent that Exhibit 1 admitted along with the English version as Exhibit 1A were admitted to establish the fact that the respondent purchase the said land from the original owner hence they are admissible even if they are registrable instrument within the meaning of Section 15 of the Land Instrument Registration law Cap 85 Laws of Kaduna State.

On the issue of proper foundation in line with the admission in evidence of Exhibit 1 and 1A, it is submitted that the word ‘misplaced’ used by the respondent sufficiently explained the facts that the original could not be found after searches. What is required is an explanation to the satisfaction of the court to enable the admissibility of a secondary document and not justification reference made to Opawaye V Tunbi (2004) (Pt.234) All FWLR 1841 at 1861. That though Exhibit 1 is written in Hausa Language it is admissible as evidence having been tendered along with the translated English version thereof which was also admitted as Exhibit 1A reference made to Lawson V Afani Continental Co. Ltd. (supra) at page 612, paragraph D-F. Learned counsel for the respondent argues that Exhibit 4 and the evidence of PW1 are in support of the pleading particularly paragraphs 3, 4, 8, 9, 10, 11 & 14 of the amended statement of claim and paragraph 3 and 4 of the recital of Exhibit 4 relates to the land in dispute being a document confirming the respondent’s ownership of the connected or adjacent plot No. R.26, Giraji Abdulwahab Road, Manda, Kaduna which, was partitioned out of the larger original single plot the other half being No. R.27 Giraji Abdulwahab Road, Mando, Kaduna subject matter of the appeal.

That exhibits 1 & 1A are not registered under the land instrument registration law, Law of Kaduna State, it is admissible in evidence and was rightly admitted in evidence by the learned trial Judge – reference made to Alimi V Obawoze (1998)6 NWLR (Pt.555) 591.

The complaint of the appellant in Issue No.2 is that Exhibits 1, 1A, 2 and 4 are not legally admissible.

The contention of the appellant is that Exhibits 1 & 1A were neither stamped nor registered contrary to the provisions of Section 15 of the Land Registration Law Cap 85 of Kaduna State. It is settled law that by virtue of Section 15 of Land Instrument Registration Law Exhibit 1 cannot be pleaded or given in evidence unless it is registered. However, there is an exception to the general law under which a registrable instrument which has not been registered is admissible in order to prove an equitable interest and payment of purchase or consideration.

In Abu V Kuyanbana (2002)4 NWLR (Pt. 758) 599 at pages 615-616, this Court adopted with approval the decision of the Supreme Court in Okoye V Dumez (Nig) Ltd (1985)1 NWLR (Pt.4) 783 to the effect that if the purpose of admissibility is to show that there was a transaction between the respondent and the original owner, the document is admissible. In Agwunedu V Onwumere (1994)1 NWLR (Pt. 321)375, Mohammed JSC while considering the provision of the Land Instrument Registration Law of Eastern Nigeria which is in parmaterial with Section 15 of the Land Instrument Registration Law of Kaduna State, stated the law as follows:-

“It is crystal clear from the wordings of Exhibit C that it is evidence of sale of a piece of land and from the proceedings that the document had been tendered in evidence simply to establish a fact which the parties have pleaded. It is not and cannot be an instrument as defined in the Land Instrument Registration Law. Even if it was an estate contract and consequently an instrument registrable for the purpose of the land instrument Law Eastern Nigeria, since the purpose of providing it was only to establish that the transaction between the respondent and Mba Haotu was for redemption of pledge, the document is admissible.”

In the appeal at hand, Exhibit 1 & 1A on the face of it is clearly a purchase receipt of agreement evidencing the purchase of the said plot by the respondent from the original owner Alhaji Usman Adamu. The respondent pleaded in paragraphs 3 and 4 of her amended statement of claim that she purchase the said land from the original owner and also she will be relying on the purchase document written in Hausa and the translated English version at the hearing of the suit.

It is apparent that Exhibit 1 admitted along with the English version as Exhibit 1A were admitted to establish the fact that the respondent purchased the said land from the original owner hence they are admissible even if they are registrable instrument within the meaning of Section 15 of the Land Instrument Registration Law Cap 85 Laws of Kaduna State.

The appellant raised the issue of proper foundation in line with the admission in evidence of Exhibit 1 and 1A, it is clear that the word ‘misplaced’ used by the respondent in her testimony before the court sufficiently explained the facts that the original could not be found after searches.

What is required is an explanation to the satisfaction of the court to enable the admissibility of secondary document and not a justification – See Opawaye V Tunbi (supra).

It is trite law that Exhibit 1 written in Hausa Language is admissible as evidence having been tendered along with the translated English version thereof which was also admitted as Exhibit 1A.

On Exhibit 4, the appellant contended that the Exhibit does not relate to the land in dispute and that it is not tenable as a document of title and cannot be used to prove the fact of settlement of the dispute on R.26 as the erstwhile 1st defendant was never brought before the court.

In the instant appeal, it is apparent from the pleading particularly paragraphs 3, 4, 8, 9, 10, 11 and 14 of the amended statement of claim that the evidence of the respondent as PW1 and Exhibit 4 particularly paragraphs 3 and 4 of the recital thereof that Exhibit 4 relates to the land in dispute being a document confirming the respondent’s ownership of the connected or adjacent plot No.R.26, Giraji Abdulwahab Road, Mando, Kaduna which was partitioned out of the larger originally single plot the other half being No.R.27 Giraji Abdulwahab Road, Mando, Kaduna subject matter of this appeal.

It is clear on the face of Exhibit 4 that it is not registrable instrument within the meaning of Section 15 of the land Instruments Registration Law Cap 85 Laws of Kaduna State as it is not a document transferring interest in land but rather a document acknowledging the title or interest of the respondent over the land in issue. It is therefore admissible in evidence without the necessity for registration.

In the circumstances of the foregoing Exhibit 1, 1A and 4 were rightly admitted in evidence by the learned trial Judge accordingly Issue NO.2 is resolved against the appellant in favour of the respondent.

Issue NO.3 is primarily on the attack as to the credibility and cogency of the Exhibits before the court considering the submissions of the counsel to the appellant on the issue. It is my definite finding that all the issues arising from the submissions have been adequately dealt with in Issue NO.2. Beside, at the point when these Exhibits were been admitted in evidence at the trial court there was no challenge to their admissibility and the trial court properly admitted them and accorded them their due value in rendering its judgment. As stated earlier, the issues arising from the submissions on Issue NO.3 has been dealt with in Issue NO.2 accordingly, Issue NO.2 is otiose and hereby discountenanced.

In conclusion, all the three issues for determination formulated by the appellant in this appeal have been dealt with. The two of them has been resolved against him and one is discountenanced. The appeal is therefore adjudged unmeritorious and is hereby dismissed. I therefore affirmed the judgment of the learned trial Judge Ja’ afaru J. delivered on 15th April, 2002 in Suit No. KDH/KAD/921/99 with costs assessed at N6,000.00 in favour of the respondent against the appellant.

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Other Citations: (2007)LCN/2345(CA)