Edokpolo & Co. Ltd. V. Samson Ohenhen & Anor (1994)
LawGlobal-Hub Lead Judgment Report
ADIO J.S.C.
The appellant, as plaintiff, in the High Court of Justice, Benin Judicial Division of the defunct Mid-Western State of Nigeria, instituted an action against the 1st respondent and the father of the 2nd respondent. The father of the 2nd respondent died before the commencement of the hearing of the case and, on the application of the appellant, the 2nd respondent was substituted as the 2nd respondent. The appellant’s claim according to paragraph 23 of the Amended Statement of Claim, was as follows:-
“(i) Declaration of title to the piece or parcel of land shown on Plan number CS2/77 attached to the deed of conveyance registered as No.6 at page 6 in volume 274 of the Lands Registry in Benin and parcel A on Plan No. 1074/75 attached to the deed of conveyance registered as No.33 at page 33 of Volume 316 of the Lands Registry.
(ii) In the alternative the plaintiff seeks a declaration that the 1st defendant’s interest in the parcels of land described above extinguished on 1st day of May, 1977.
(iii) General damages of N2,000.00.
(iv) Perpetual injunction restraining the 1st defendant and his servants or agents from erecting permanent structure on the land.”
Pleadings were duly filed and exchanged by the parties. The evidence led was that the 1st respondent, sometime in 1974, obtained a lease for the period of fifty years from the father of the 2nd respondent in respect of his vacant parcel of land bounded on one side by Akpakpava Street and on the other side by Eheakpen Street in Benin City. Exhibit “9” was the deed of conveyance executed by the father of the 2nd respondent and the 1st respondent in relation to the transaction. The allegation was that not long after the transaction between the 1st respondent and the father of the second respondent in relation to the aforesaid parcel of land, the appellant received an offer of a freehold interest in relation to another parcel of land on which there was a building for which the appellant paid the sum of N4,000.00 to the father of the 2nd respondent as purchase price as shown by a deed of conveyance.
Exhibit “1”, executed by the parties in relation to the transaction. The cause of the present dispute was another parcel of land which the father of the 2nd respondent allegedly sold to the appellant which had earlier been leased to the 1st respondent by the father of the 2nd respondent for fifty years. The appellant paid N2,400.00 for it and the deed of conveyance executed by the parties in relation to the transaction was Exhibit “2”. At all material times and up to the time of his death in 1977, the father of the 2nd respondent, aged 120 years, was bed ridden and was a cripple.
As soon as the 1st respondent commenced building operations on the parcel of land, there were protests by the appellant. The appellant alleged that it brought the matter to the notice of the father of the 2nd respondent (hereinafter referred to as “the deceased”) and the deceased alleged that his thumb-impression on Exhibit “9” must have been forged and that he did not grant to the 1st respondent lease for a period of fifty years in relation to the land in dispute; the agreement was oral and only a lease for three years was granted.
The learned trial judge, after consideration of some of the evidence led by the parties and of the submissions made by their counsel, entered judgment for the appellant. He held that fraud was not established in relation Exhibits “2” and “9” executed by the deceased in relation to the land in dispute, in favour of the appellant and the 1st respondent, respectively. In his view, the Land Instruments Registration Law (Cap.81) was the relevant Law for the purpose of this case and he did not agree with the submission of the learned counsel for the 1st respondent that by virtue of section 5 of the illiterates Protection-Law non-compliance with the provisions of the Law in relation to Exhibit “9” did not invalidate the document. In the circumstance, he held that Exhibit “9” was invalid because its contents were not read and interpreted to the deceased and by reason also of the fact that there was nothing therein to show that it was executed in the presence of a magistrate or it Justice of the peace as prescribed in section 8 of the Land Instruments Registration Law, Cap. 81. He also held that Exhibit “2” was valid. In his opinion, the evidence led during the proceedings before him did not matter much; the main and fundamental issue was the validity or otherwise of Exhibits “2” and “9”.
Dissatisfied with the judgment, the respondents lodged an appeal against it to the Court of Appeal. The court below allowed the appeal after holding that the contention of the respondents that the deceased granted a lease of fifty years to the 1st respondent in relation to the land in dispute before subsequently purporting to grant to the appellant a freehold interest in the same parcel of land was established. In its view, Exhibit “9”, the deed of lease executed in favour of the 1st respondent by the deceased, was valid as there was nothing in relation to it which contravened the illiterates Protection Law and the Instruments Registration Law. For those reasons, the court below affirmed the decision of the learned trial judge granting title to the parcels of land conveyed by Exhibits “1” and “2” subject, however, to the 1st respondent’s enjoyment of his prior interest of 50 year lease conferred on him by Exhibit “9”. The orders of the learned trial Judge granting perpetual injunction, damages for trespass, and costs to the appellant were set aside.
The appellant was dissatisfied with the judgment of the court below and it lodged an appeal against it to this court. The parties, in accordance with the rules of this court, duly filed and exchanged briefs. The appellant identified, in its brief, three issues for determination while the 1st respondent, in his brief, identified two issues for determination. In my view, the three issues, identified for determination in the appellant’s brief which covered the two issues in the 1st respondent’s brief, are sufficient for the determination of this appeal. The three issues in the appellant’s brief are as follows:-
“(1) Whether the court of Appeal was right in holding that Exhibit “9” complied with the provisions of the Land Instruments Registration Law, Cap.81 of the Laws of Bendel State, 1976.
(2) Whether the Court of Appeal was right in raising and basing its judgment on an issue not raised by either party.
(3) Whether the Court of Appeal was right in giving legal effects to Exhibit “9” in the circumstances of this case.”
The question raised under the first issue was whether the court below was right in holding that Exhibit “9” complied with the provisions of the Land Instruments Registration Law Cap. 81. Uche Omo, J.C.A., (as he then was) who read the lead judgment of the court below, agree with the learned trial Judge that the issue for determination was a straightforward one. In dealing with the alleged deficiencies which the learned trial judge found to have made Exhibit “9” not to have complied with the provisions of the Illiterates Protection Law and the Land Instruments Registration Law, one by one,-he referred to the relevant provisions of the laws and to the views expressed by the learned trial Judge, on the points, and stated, inter alia, as follows:-
“Factually, the finding is correct. But that is the legal position
What Law is this deficiency said to offend- the Illiterates Protection Law or the Land Instruments Registration Law I take it to be the former. In that case my first observation is that nowhere in that legislation is there a mandatory provision that the only evidence of interpretation that is acceptable and the court can consider is that on the face of the document. There was evidence before the learned trial Judge by the person who prepared the document, and who there fare should comply with the provisions of the Illiterates Protection Law, that he interpreted the contents of the document from English language to Bini language to the lessor Ehigiator Ozigba Okeneda…………
The learned trial Judge clearly erred in not considering this evidence which was given by a legal practitioner, whose client the lessor was (so he testified without any challenge); and who prepared Exhibit “9” and saw it through from consultation with and instruction from his client, to its execution by him.”
The learned Justice of the court below then went an to consider the question of what was the effect of the failure of the learned trial Judge to consider the evidence and, in dealing with the question, expressed the following view:-
“With regard to the first alleged deficiency, it may be argued that the failure of the learned trial Judge to consider the evidence of D.W.6, still leaves the issue of what credibility he would have attached to that evidence if he had considered it unaddressed, and that therefore the proper order to make in the circumstance would be one of a retrial vide (1) Okonji v. The State (1987) 1 NWLR. (Pt. 52) 659 (2) Obodo v. Ogba. (1987) 2 NWLR. (Pt. 54) 1. A look at the testimony of D.W.6 and his crass examination reveals that his evidence was unchallenged …………….
Being unchallenged the trial Judge would have no choice but to believe the evidence vide (1) Eze v. The State (1985) 3 NWL.R. (Pt.13) 429; (2) Niger Construction Ltd., v. Okugbeni, (1987) 4 NWLR. (Pt 67) 787. The issue of credibility, there fare does not arise. On the basis of my findings an the two deficiencies relied upon, in respect of which the learned trial Judge was in error, the order which must follow is that his decision being wrong must be set aside.”
With reference to the alleged non-compliance with the provisions of the Land Instruments Registration Law, the court below was of the view that there was sufficient compliance with the provisions of the Law and that the learned trial Judge erred in his view which appeared to suggest that a document, in order to comply with the provisions of the Law must be in a certain stereotype farm. The court said further that the fact that Exhibit “9” was not in a particular elegant or stereotype farm did not affect its validity. It concluded by saying that Exhibit “9” was a document that spoke far itself and if the learned trial Judge looking at it still had any doubt about its proper execution, he should have considered the oral evidence before him which did not contradict Exhibit “9” but merely explained it.
The argument in the appellant’s brief was, inter alia, that the court below was wrong in holding that the provisions of the illiterates Protection Law were complied with because there was nothing an the face of Exhibit “9” showing the person who interpreted the document to the deceased and the evidence of the D.W.6, which the court below said the learned trial Judge should have considered to resolve any doubt in his mind, was not credible. The contention in the 1st respondent’s brief was that the failure of the learned trial judge to consider the evidence of the D.W.6, the legal practitioner who prepared Exhibit “9”, which showed that the provisions of the Illiterates Protection Law were complied with justified the order of the court below allowing the appeal.
The Illiterates Protection Law, which the appellant alleged that exhibit “9” contravened was made for the protection of illiterate persons. It is the Illiterate person at the request of whom any person writes a letter or document that requires protection and he is the one who may seek the protection given by the Law by complaining that the letter or document written at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. One is therefore, not surprised by the following provisions of section 5 of the Law:-
“5. This Law shall not apply to the writing of any letter or other document written in the course of his business by or at the direction of any person admitted to practise and practising as a legal practitioner in a High Court or the Supreme Court.”
In short, where a letter or document is prepared by a legal practitioner at the request or on behalf of his client who is an Illiterate, the legal practitioner need not interprete and explain the letter or document to the client prior to the client signing or making his mark on the letter or document. See Okelola v. Boyle, (1989) 5 NWLR (Pt.119) 46, which is a decision of the court of Appeal with which I agree. The evidence of D. W.6 was that he was a legal practitioner. The deceased who was his client requested him to prepare Exhibit “9” and he did so. In the circumstance, section 5 of the Illiterates Protection Law exempted the D.W.6 from complying with the provisions of the Law. In any case, the deceased did not testify during the proceedings in this case. He died before 27th April, 1981, when the trial court started to take evidence, so, there was no evidence or complaint by him (the person who needed the protection provided by the Law) that Exhibit “9” was not read and explained to him before he thumb-printed it. The difficult position in which the appellant found itself becomes very glaring as the 2nd respondent who stepped into the shoes of the deceased, (the vendor who allegedly sold the land in dispute to the appellant) on the application of the appellant took a position which was clearly opposed to that of the appellant. In particular, the appellant averred in paragraph 16 of the Amended Statement of Claim, inter alia, that it would contend that there was no valid lease of the land in dispute to the 1st respondent by the deceased, as the deceased, who was illiterate, was not taken before a magistrate or a justice of the peace to execute the lease agreement (Exhibit “9”) and the said lease agreement was never interpreted to the deceased. The- 2nd respondent, in his Amended Statement of Defence, not only denied paragraph 16 of the Amended Statement of Claim, he went further in paragraph 6 of his Amended Statement of Defence to aver as follows:-
“6. In further answer to paragraphs 13, 14, 15, 16, 17, and 18 of the Amended Statement of Claim the 2nd Defendant states that his father late Chief Ehigiator Ozigbo Okonedo had executed in favour of the 1st defendant (prior to any transaction with the plaintiff) a deed of lease for 50 years terminating 31st April, 2024 registered at the Lands Registry Benin City as No. 12 at page 12 in volume 216. The said document or copy thereof interpreted 10 the illiterate father of the 2nd defendant before a justice of the peace (a legally competent officer) will be relied upon at the trial.”
The foregoing was not all. The 2nd respondent gave evidence which, instead of supporting the case of the appellant, knocked the bottom out of it. He said, inter alia, as follows in relation to what the deceased did with the land in dispute in his lifetime:-
“My father granted a lease to the 1st defendant for 50 years in respect of the land in dispute. There are documents relating to the lease transaction. My late father did not go to school …………
I am in respect of the case maintaining my father’s position. The correct position (is) that the land in dispute was leased to the 1st defendant and not sold to the Bishop.”
The 2nd respondent was one of the children of the deceased and he was joined, at the instance or on the application of the appellant, as the 2nd respondent in this case. He then stepped into the shoes of the deceased. The evidence of the 2nd respondent and the evidence of another son of the deceased (D.WA) who told the court that he knew that the deceased leased the land in dispute to the 1st respondent and did not sell it to the appellant, clearly showed that the appellant’s case was in disarray.
Finally, on this point, that is, on the question of the application or non application of the Illiterates Protection Law to Exhibit “9”, the Court of Appeal was right in holding that the learned trial judge erred in not considering in addition to Exhibits “2” and “9”, the totality of the oral evidence before him before coming to the conclusion that the provisions of the Law were not complied with in the execution of Exhibit “9”, if he had considered, in addition to Exhibits “2” and “9” the totality of the oral evidence, his decision on the point would have been that the provisions of the Law were complied with. In any case, there was substance in the contention that by virtue of section 5 of the Law, the provisions of the Law were not applicable to Exhibit “9”. In short, apart from the oral evidence led on the point by the respondents, particularly the evidence of D.W.6, the legal practitioner who prepared Exhibit “9” at the request of the deceased and who saw to the proper execution of it according to law, there was in addition in favour of the 1st respondent the provision of section 5 of the Law which exempts a document prepared by a legal practitioner from compliance with the provisions of the Law.
Even if the provisions of the Law were applicable to the Exhibit, the party who was competent and who had the standing to raise the question of non-compliance with the said provisions did not or had not raised it.
With reference to the second aspect of the -question raised under the first issue, I am of the view that, for a proper understanding of it, one should consider it along with the question raised under the second issue which is whether the Court of Appeal was right in raising and basing its decision on an issue not raised by either party. In the process of giving consideration to the question whether Exhibit “9” complied with the provisions of the Land Instruments Registration Law, the learned justice of the Court of Appeal stated, inter alia, as follows:
“I must begin here by acknowledging that Exhibit 2 is a much better prepared document than Exhibit 9. That however is not the issue here. What is to be considered is sufficient compliance with the provisions of the relevant Laws. The need for proper execution is a requirement for registration under the Land Instruments Registration Law. The evidence of registration which the learned trial judge deemed important must be (a) the presence of the words of execution, signed, sealed and delivered by the within named …………..
(b) ‘In the presence of’ and (c) the signature of the Magistrate or justice of the peace above his designation of office. In Exhibit 2 these are set out in their proper positions in a document of this nature. But are they missing in Exhibit 9 The learned trial judge seems to think so but I do not. What is ‘wrong’ is that these requirements are not in their ‘proper’ positions. The words of Execution ‘signed and delivered by the within named lessor’ is in the document, combined with the words of interpretation. Also combined with these are the magic words in my presence’ before the signature and official designation of the justice of the peace. It is not indeed the job of the learned trial judge to guess whether the deed of lease was executed in the presence of a justice of the peace. He was not called upon in this instance to do (so), because the document speaks for itself in this instance.”
The statement of the learned justice of the Court of Appeal quoted above was what the appellant found objectionable. According to the appellant, the question
whether Exhibit “9” or “2” should speak for itself and of the “proper positions of o certain words in the documents were raised by the court below and determined by it without the parties being given an opportunity of being heard; it was not raised by the parties in the appellant’s view. The argument in the 1st respondent’s brief was that the appellant’s brief did not both in law and on the facts fault the consideration, findings and judgment of the court below. It is not correct to say, as the appellant had said, that the question whether Exhibit “2” or “9” should speak for itself or of the things that appeared on the face of each of the documents and their relative positions was not raised by the parties. The judgment of the learned trial Judge showed that he held the view that each of the documents should speak for itself and it was by examining the things that appeared on the face of the documents and their relative positions in the documents that he came to the conclusion that Exhibit “2” complied with the Illiterates Protection Law and the Land Instruments Registration Law and that Exhibit “9” did not. On this point, the learned trial Judge stated, inter alia as follows:-
“It is now for me to examine both Exhibits 2 and 9 for the purpose of arriving at a decision in this case and the decision in this case hinges on the said documents. Being documents they speak for themselves and there should be no difficulty in determining their validity.”
The learned trial judge then placed Exhibits “2” and “9” side by side, examined the things that appeared on the face of each of them and the relevant positions of those things. He then stated his conclusion after the comparison of the documents, in the manner aforesaid, as follows:-
“It is not for me to guess whether the deed of lease was executed in the presence of a Justice of peace. The document should speak for itself as Exhibit 2 speaks for itself.”
The foregoing statements of the learned trial judge were in response to the submission, in the brief of the appellant, who was respondent in the court below. After setting out, in the appellant’s brief the relevant provision of section 8 of the Land Instruments Registration Law, it was submitted as follows:-
“From the above, it is clear that there are 2 conditions precedent to be fulfilled in respect of Exhibit “9” before it can be registered and considered by a court. It must be seen in the face of it, that it was executed by the illiterate grantor in the presence of the designated persons set out in section 8 of the Land Instruments Registration Law, Cap.80 Laws of Bendel State, 1976 and also the designated person must subscribe to the document as a witness. It is our submission, that on the face of Exhibit “9” there is nothing to show it was executed in the presence of one of the designated officers. It is trite law that a document should speak for itself.
The foregoing was not all on the insistence of the appellant in the court below that Exhibit “2” or “9” should be examined to see whether it spoke for itself in the determination of the question whether each of them complied with the provisions of the Land Instruments Registration Law. Even in this court, the brief filed by the appellant contained the following submission:-
“We humbly submit that Exhibit “9” must be examined to see whether or not it complied with the above quoted provision of the said law. We further submit that in examining Exhibit “9” the document must speak for itself.”
The question then is whether, bearing in mind that the learned trial judge having in his judgment given consideration to the question whether Exhibit “2” or “9” spoke for itself and to the relative positions of certain words or expressions in each of the documents, and that the appellant in this case, who was respondent in the court below, having canvassed the same questions or issues in its brief, before the court below and in its brief before this court, it was improper for the court below to give consideration to the same questions. In his comparison of Exhibit “2” with Exhibit “9”, the learned trial judge found that the words of execution ‘signed and delivered by the within named lessor’ was in both documents, combined with the words of interpretation. In each of them also were the magic words ‘in my presence’ on top or before the signature and official designation of the justice of the peace. What the learned trial Judge regarded as deficiency was that the foregoing things were in their proper places in Exhibit “2” whereas they were not in their proper places in Exhibit “9” which was badly drafted. As the learned trial Judge himself had indicated elsewhere in his judgment, he based his determination of the validity or otherwise of the documents, not on the oral evidence given during the proceedings, but by examining the contents of each of the documents which should speak for itself. One was, therefore, not surprised that, as the records showed, he based his conclusions on the relative positions, in each of the documents, of the aforesaid things.
In the circumstance, it could not be justifiably said that the issues were not raised in the proceedings before the learned trial judge or in the proceedings in the court below and that it was the court below that raised and determined the issues without giving the parties the opportunity of being heard. If a court raises an issue, which the parties themselves have not raised, because it is material for the determination of the case or appeal before it, the parties must be given an opportunity to argue the point before the issue is determined. See Ejowhomu v. Edok-Eter Mandilas Ltd., (1986) 5 NWLR (pt. 39) 1. In the present case, the issues were canvassed by the parties, particularly the appellant and considered by the learned trial judge before they were considered by the court below. The court below, has, therefore, not done anything improper or erroneous.
With reference to the question of compliance with the relevant provisions of the Land Instruments Registration Law, the provision of section 8 thereof is as follows:”
“8. No Instrument executed in Nigeria after the commencement of this Law, the grantor or one or more of the grantors, whereof , is illiterate shall be registered unless it has been executed by such illiterate grantor or grantors in the presence of:-
(a) a magistrate; or
(b)……………
(c) a justice of the peace, and is subscribed by such magistrate……… or justice of the peace as a witness thereto.”
The legal position is that where an instrument requiring registration under the Land Instruments Registration Law is not executed before a designated authority, it is not admissible. See Djukpan v. Orovuyevbe. (1967) 1 All NLR 134; (1967) N.M.L.R. 287 at p. 291. In the case of Exhibit “9”, the words of Execution “signed and delivered by the within named lessor” were in it, combined with the words of interpretation. In it, also, were the words “in my presence” on top or before the signature and official designation of the justice of the peace. What the learned trial Judge regarded as deficiency was that the foregoing things were not in their proper positions in Exhibit “9”, and it was on that account only that he held that Exhibit “9” did not comply with the provisions of the Land Instruments Registration Law and was, therefore, invalid. The conclusion of the learned trial Judge, on the point, was erroneous. If, as it was the position in this case, all the essential things which an instrument like Exhibit “9” should contain are contained in it and what appears to be wrong is that they are not in their proper or correct positions, the instrument may not on that ground alone be said to be invalid. The consequence of basing a judgment on such a technical point can be very grave and may result in a miscarriage of justice. The court should not allow itself through technicalities to be used for perpetrating injustice. See Highgrade Maritime Services Ltd., v. First Bank (Nig.) Ltd., (1991) 1 NWLR (Pt.167) 290. Further, as all the essential things, particularly the signature of the justice of the peace and the magic words: “in my presence” and “Justice of the peace” were in Exhibit “9”, the learned trial Judge should have presumed or inferred that the instrument was executed in the presence of the justice of the peace. This is because the court will presume the existence of one fact from the existence of proved fact where such a presumption or inference is irresistible or where there is no other reasonable presumption or inference which fits all the facts. See Highgrade Maritime Services Ltd., v. First Bank (Nig.) Ltd., supra. In the circumstance, the Court of Appeal was, therefore, right in reversing the decision of the learned trial Judge, on the point, and in holding that Exhibit “9” complied with the provisions of the Land Instruments, Registration Law.
The question raised under the third issue was whether the court below was right in giving legal effect to Exhibit “9” (the deed of lease executed by the deceased in favour of the 1st respondent in relation to the lease of 50 years of the land in dispute) in the circumstances of this case, The court below rejected the contention of the appellant that Exhibit “9” did not comply with the provisions of the illiterates Protection Law and the Land Instruments Registration Law. In the view of the court below, the instrument was valid and that accounted for the order of the court below affirming the decision of the learned trial judge, granting title to the appellant in respect of the land in dispute, subject to the 1st respondent’s enjoyment of his prior interest of 50 year lease conferred by Exhibit “9”. The position of the appellant, as stated in its brief, was that the main issue, on this point, was whether the printed evidence supported the judgment of the court below. It was argued that the deceased, in his Will (Exhibit “3”), denied that he granted a lease to the 1st respondent and, for that reason, the court below erred in law in holding that there was no primary evidence that the deceased denied granting the alleged lease to the 1st respondent. In the view of the appellant, the title of the appellant was better than that of the 1st respondent because Exhibit “9” did not comply with the relevant Laws. I have already referred to the submission in the 1st respondent’s brief generally in relation to all the issues raised in the appellant’s brief. It was that the appellant failed to fault the judgment of the court below in its consideration of the facts and the law relevant to this case.
I should state straightaway that this court has, earlier in this judgment, given consideration to the question whether Exhibit “9” complied with the provisions of the Illiterates Protection Law and the Land Instruments Registration Law and the conclusion was that Exhibit “9” complied with the provisions of the aforesaid Laws and that, in any case, by virtue of section 5 of the illiterates Protection Law, the provisions of the Law did not apply to Exhibit “9” which was prepared by a legal practitioner.
In the case of the alleged statement in the Will of the deceased that he did not grant a lease of the land in dispute to the 1st respondent for fifty years, the deceased and his legal advisers ought to know that the law does not permit what is stated in an agreement, that is in writing, to be changed, altered or contradicted in that way.
See section 132(1) of the Evidence Act; and Union Bank of Nigeria Ltd., v. Professor Ozigi (1994) 3 NACR; (1994) 3 NWLR (Pt. 333) 385. In any case, the deceased had died before the trial of this case commenced before the learned trial judge. The 2nd respondent was substituted for the deceased (grantor of the land in dispute to the appellant) on the application of the appellant. In his Amended statement of defence and in his oral evidence, the 2nd respondent admitted that the deceased granted a lease of fifty years to the 1st respondent in relation to the land in dispute. If the deceased (the grantor) never properly raised the issue that he did not grant any lease of fifty years to the 1st respondent in relation to the land in dispute and the 2nd respondent, who was substituted for him on the application of the appellant, admitted that the deceased granted the aforesaid lease to the 1st respondent for fifty years in his amended statement of defence and in his oral evidence, then there was no obligation on the 1st respondent to prove that the deceased granted a lease of the land in dispute to him for fifty years. This is because that fact was admitted in the pleading and oral evidence of the 2nd respondent who was a representative of the grantor. Averment in the pleading of a party which is admitted in the pleading of the other proper party needs not be proved. See Uwegba v. Attorney-General, Bendel State (1986) 7 NWLR (Pt.16)303 which, in my view, was correctly decided.
Closely connected with the question dealt with above is the competence, if any, of the appellant to challenge the validity of Exhibit “9”, the deed executed by the deceased and the 1st respondent in relation to the aforesaid lease transaction to which the appellant was not a party. In so far as the said transaction was concerned, the appellant was a third person; a complete stranger. Only parties to a deed can apply to set it aside on the ground that it is null and void. The principle is not applicable to family land sold without the consent of principal family members. See Adejumo v. Ayantegbe, (1989) 3 NWLR (Pt.110) 417; and Ordor v. Nwosu & Anor., (1974) 12S.C. 103 at p.112. The appellant, not being a party to Exhibit”9″, could not properly challenge its validity especially having regard to the attitude of the 2nd respondent which was not favourable to the appellant’s case as reflected in his amended statement of defence and his oral evidence.
It may be argued that the appellant was claiming through the deceased. Even in that case, the appellant would have had enormous difficulty in discharging the burden of proving its case. The allegation made by the appellant was that the thumb-impression of the deceased was forged. Forgery is a criminal offence and the legal implication was that the allegation had to be proved beyond reasonable doubt. This is because if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See section 137(1) of the Evidence Act; Omorhirhi & Ors., v. Enatevwere (1988) 1 N.W.L.R. (Pt.73) 746; and Folami v. Cole (1990) 2 N.W.L.R. (Pt.133) 445.
The evidence led by the appellant did not only fail to discharge the burden of proof under section 137(1) of the Evidence Act, it also did not discharge the burden of proof in civil proceedings, having regard to the various shortcomings which I have pointed out in the appellant’s case, as presented. In particular, the position allegedly taken by the deceased was not only inconsistent it was also contradictory on the question of whether he granted 50 year lease of the land in dispute to the 1st respondent. At first, the deceased allegedly denied ever entering into any written agreement with the 1st respondent in relation to any transaction. At another stage he was alleged to have said that the agreement was oral and that the period of the lease was only three years. The deceased, Chief Okonedo, was very old and bedridden before his death. It was not clear whether whenever he alienated a parcel of land to a person, after having disposed of the same parcel of land to another person, he was being mischievous or was doing so as a result of old age which had the effect of making him to forget what he had earlier done. Just as it happened in the case of the land in dispute which he leased to the 1st respondent for fifty years and subsequently sold outright to the appellant without regard to the aforesaid lease, the same thing happened in the case of another parcel of land in the same area which he sold to the appellant. The evidence of the 7th P.W., a legal practitioner who was acting for the appellant, on the point, when being cross examined was as follows:-
“Subsequently we find (Sic) that Total Co. Ltd had a part of the land sold to the plaintiff/company by Chief Okenedo Before Chief Okenedo gave him (sic) plaintiff/company a freehold interest, he had prior to that leased a portion of the land to Total Nig. Ltd.”
In the circumstance, how could one be sure that what the deceased did in relation to the land in dispute by effecting a freehold sale of it in favour of the appellant after granting a leasehold of it to the 1st respondent for fifty years was not on the same pattern with the sale of another parcel of land to the appellant after a portion of it had earlier been leased to Total Nigeria Limited The legal practitioner acting for the appellant in connection with the alleged sale of the land in dispute (P.W.7) made a search in the Lands Registry and found that the 1st respondent had registered Exhibit “9”.
The evidence led by the appellant was that when the registration of Exhibit “9” was brought to the notice of the deceased he denied it. The sale of the parcel of land, which the deceased had already leased to Total Nigeria Ltd., to the appellant took place before the sale of the land in dispute to the appellant after it had been leased to the 1st respondent. That should have made the appellant to be cautious and not to rely heavily or entirely on the alleged denial by the deceased that he had earlier leased the land in dispute to the 1st appellant before the purported outright sale of the same land to the appellant. Further, the legal implication of the discovery of Exhibit “9” in the Lands Registry by the solicitor acting for the appellant was that the appellant was not a bona fide purchaser for value of the land in dispute without notice as there was evidence that the solicitor reported his findings to the appellant. See Animashaun v. Olojo (1990) 6 N.W.L.R. (Pt. 154) 111. My conclusion is that the court below was right in giving legal effect to Exhibit “9” in the circumstances of this case.
The appeal fails. The judgment of the court below is affirmed. The appeal is dismissed with N1,000.00 costs to the 1st respondent.
SC.174/1991
