West African Cotton Ltd. & Anor. V. Alhaji Bako Maiwada (2007)
LawGlobal-Hub Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
This is an appeal against the judgment of the High Court of Katsina State, Funtua Judicial division delivered on 5/5/04 in respect of interpleader proceedings. The appellants were judgment creditors in Suit No. KTH/FT/23/98: West African Cotton Ltd. vs Alhaji Ahmadu Yankara. Pursuant to leave of court obtained on 17/11/03 the immovable property of the judgment debtor, Alhaji Yankara, situate at Yankara Market was attached in satisfaction of the judgment debt. A date was fixed for the auction of the said property. Prior to the date fixed for the auction, the respondent in this appeal filed an originating summons dated 4/2/03 but filed on 11/3/04 seeking the determination of the following questions:
1. “Whether the judgment debtor still retains ownership of the property situate a (sic) lying (at) Yankara Market opposite Police Outpost Yankara now sought to be attached and sold by the judgment creditor in fulfilment of the judgment of this Court delivered on 25/11/98 between the judgment creditor and judgment debtor.
2. If the answer to the above question is in the negative, a declaration that the judgment creditors cannot sell the properties in question in fulfilment of the judgment of this court delivered on 25/11/98 between the judgment creditors and the judgment debtor.
3. A consequential order directing the Sheriff and/or any of his legal representative(s) and/or his staff to release forthwith any hold on the properties in question.
4. A further order directing the sheriff and/or his legal representatives and/or his staff to withdraw and cancel all NOTICE(S) of auction sale of the properties in question.
5. And for such order and/or further orders as this Honourable Court may deem fit to make in the circumstances.”
The originating summons was supported by a 14-paragraph affidavit with two exhibits annexed thereto, wherein he claimed ownership of the attached property. The appellants filed a 6-paragraph counter affidavit in response to the originating summons wherein they contended that the property still belonged to the judgment debtor. After hearing submissions from learned counsel to the parties, the learned trial Judge on 5/5/04 entered judgment in favour of the c1aimanUrespondent.
At page 13 of the record he held:
‘This Court have (sic) been called upon to determine whether or not the property in question having been sold to the claimant by the defendant can now be auctioned to realise a debt owned (sic) by the defendant.
Therefore since no Court has declared Exhibits A and B null and void the present suit is not the appropriate avenue to so declare the exhibits. Accordingly I hereby order the Sheriff and/or any of his legal representatives and/or staff to release further with (sic) any hold on the property in question. They are also directed to withdraw and cancel all notice of auction sale of the properties namely the property situated and lying at Yankara market opposite Police Outpost Yankara.”
The appellants being dissatisfied with the judgment filed a notice of appeal dated 14/5/04 and filed on 1715/04 containing three grounds of appeal. The grounds of appeal are as follows:
1. The learned trial Judge erred in law to have admitted Exhibits A and B in evidence.
PARTICULARS OF ERROR:
a. That the purported Exhibit A translated in Exhibit B is a registerable instrument.
b. That the said Exhibit A was executed since 24/6/98.
c. That the prerequisite condition necessary to its admissibility was never met.
2. The learned trial Judge erred in law to have accorded strong probative value on Exhibit A and B.
PARTICULARS OF ERROR:
a. That it is trite law that Exhibit A and B per se cannot vest absolute interest or ownership in land.
b. That the prerequisite necessary consent before the execution of Exhibit A and B was not sought nor obtained.
c. That the claimant’s affidavit of evidence did not disclose any fact that the claimant had ever been in possession of the property.
3. The decision of the lower Court is against the weight of affidavit evidence.”
In the appellants’ brief dated 22/2/05 and filed on 25/2/05 three issues were formulated for the determination of this appeal as follows:
1. Whether Exhibit A translated in Exhibit B is an admissible instrument. (Ground 1)
2. To what extent is Exhibit A translated in Exhibit B can be relied upon (sic) in proving ownership of a landed property? (Ground 2)
3. Whether the evidence before the trial court was correctly weighed having regard to the burden of proof in interpleader proceedings. (Ground 3)
The respondent’s brief is dated 14/2/07 and deemed filed on 20/2/02 pursuant to an order of this court. In the respondent’s brief, a sale issue was formulated for the determination of the appeal thus:
“Whether the interpleader proceedings is the proper avenue for the determination of the legality or otherwise of the sale transaction between the respondent and Ahmadu Musa Yankara (Judgment Debtor) as per Exhibit A and B”.
At the hearing of the appeal on 22/2/07, Mr. U. A Mbuko learned counsel for the appellants adopted the appellants’ brief and urged us to allow the appeal and set aside the decision of the lower court. Mr. Lawai A. Amah. learned counsel for the respondent adopted the respondent’s brief and urged us to dismiss the appeal and affirm the decision of the lower court. The three issues formulated by the appellant are interwoven and can be conveniently be determined together.
On the first issue learned counsel for the appellant submitted that in proving ownership of the property in question (sixteen shops) the respondent relied solely on Exhibit A translated into Exhibit B referred to in paragraph 10 of his supporting affidavit. He submitted that the shops were allegedly purchased by the respondent on 24/6/98 vide Exhibit A. He submitted that Exhibit A is a registrable instrument, which must be registered within six months of its execution. He relied on the case of Savannah Bank Plc. vs Ibrahim (2000) FWLR (25) 1626 at 1632 paragraphs 9-10; (2000) 6 NWLR (662) 585. He submitted that there is no averment in the respondent’s affidavit stating that after the payment of the purchase price there was an actual transfer of the shops to him or that he was put into possession in the presence of witnesses as required by law. He relied on: Manya Vs Idris (2000) FWLR @ 1237; (2001) 8 NWLR (716) 627. Learned counsel submitted that the learned trial Judge ought to have rejected Exhibits A and B. He urged this court to expunge them. He relied on: Egbobamien Vs Fed. Mortgage Bank (2002) NSCQR 183 at 190-191.
On the second issue, learned counsel submitted that the transaction in Exhibit A was an outright sale and therefore by virtue of Section 22 of the Land Use Act Cap. 202 Laws of the Federation of Nigeria (L.F.N.) 1990, the Governor’s consent ought to have been obtained. He submitted that failure to obtain the Governor’s consent for the alienation of an interest in land renders the transaction null and void by virtue of Section 26 of the said Act. He referred to page 12 lines 14-16 of the record, wherein the learned trial Judge held that there was an element of illegality in the transaction and submitted that His Lordship ought to have declared it null and void, as it could not be enforced. He referred to: Alao Vs A.C.B. Ltd. (1998) 3 NWLR (542) 339 at 343.
On the third issue, learned counsel for the appellants submitted that the burden of proving title to the shops in question was on the respondent. He relied on: Maigoro Vs Bashir (2000) FWLR (19) 553 at 564 and Section 137 (1) of the Evidence Act Cap. 112 L.F.N. 1990. He submitted that the averments in the supporting affidavit and Exhibits A and B are not sufficient to vest title in the respondent. He referred to the case of Manya Vs Idris (supra). He submitted that the respondent failed to prove his case on a preponderance of evidence and is not entitled to the declaration and reliefs sought in his originating summons. He urged us to set aside the judgment of the court below and allow the appeal.
In his brief of argument, learned counsel for the respondent argued the sale issue formulated therein. He submitted that the main facts before the learned trial Judge consisted of affidavit evidence from both parties. He submitted that he was entitled to use his discretion to resolve the matters in dispute by resorting to the documents and facts before him without more. He referred to the case of Ezegbu vs. F.A.T.B. Ltd. (1992) NWLR (220) 669 at 720.
Learned counsel conceded that Exhibit A translated into Exhibit B is inadmissible in evidence for the reasons given by the appellants. He referred to Section 15 of the Land Registration Law Cap. 74, Laws of Katsina State 1991. He also referred to the case of: Abu vs Kuyabana (2002) 4 NWLR (759) 599 at 602 ratio 4. He however submitted that the said Exhibits A and B did not occasion a miscarriage of justice on the ground that the admission of inadmissible evidence is not a ground for reversing a judgment. He relied on Section 227 of the Evidence Act.
He submitted that interpleader proceedings are not the proper avenue for the determination of the legality or otherwise of the sale transaction between the respondent and the judgment debtor. He cited the judgment of the learned trial Judge wherein His Lordship opined that title could not be said to still reside in the judgment debtor having divested himself thereof. He submitted further that as a general rule, the Court of Appeal would not upset the judgment of a lower court on account of improper admission of evidence. He referred to Order 1 Rule 20 (2) of the Court of Appeal Rules 2002. He urged us to affirm the decision of the trial court and dismiss the appeal.
As stated earlier in this judgment, this appeal arose out of interpleader proceedings. I am of the view that it is necessary at this stage to consider the nature of interpleader proceedings before going into the merits of the appeal. Where a judgment creditor attaches the property of a judgment debtor in satisfaction of a judgment debt and a third party claims ownership of the property attached, the third party files an interpleader summons before the court for a declaration in his favour in respect of the property in dispute. The burden of proof in interpleader proceedings is the same as in civil causes or matters. He who asserts must prove.
See Sections 136 and 137 of the Evidence Act. The claimant must succeed on a preponderance of evidence. The Supreme Court, in the case of Alhaji Musa Kala vs Alhaji Barau Potiskum & Ors. (1998) 3 NWLR (540) 1 at 17-18 H.B per Iguh, JSC elucidated the burden of proof in interpleader proceedings thus:
“It is trite that in interpleader proceedings, the claimant generally is deemed to be the plaintiff and the judgment creditor the defendant. Accordingly the burden of proof, again as a general rule is on the claimant as plaintiff in the proceedings. The onus lies on him to establish his title to the property in dispute, or where his claim is not absolute title he must prove the precise interest or title he claimed. Where however, the claimant was in possession of the property at the time of its attachment, it would seem that the judgment creditor shall, in that case, be deemed a plaintiff and the burden of proof shall reverse accordingly. In that case, the onus must be on the judgment creditor to establish his claim.”
See also: Jinadu Vs Babaoye (1966) 2 All NLR 241 at 243 and Maigoro Vs Bashir (2000) 11 NWLR (679) 453 at 464-465 E.C.
In the instant case it was the respondent’s case at the trial court that the property in dispute no longer belonged to the judgment debtor as he had purchased it from him long before judgment was entered against him. In paragraphs 4-13 of the affidavit in support of the originating summons it was averred as follows:
4. “That the judgment creditor obtained judgment against the judgment debtor for the sum of N1,654, 810.00 on 25/11/98.
5. That the judgment creditor in a bid to execute the judgment of this court applied to the court for leave to attach and sell the immovable properties of the judgment debtor.
6. That as a result of the leave granted by this Honourable Court to the judgment creditor, the judgment (sic) has put up notice of auction of the immovable properties and is slated for 4/2/2004.
7. That one of the immovable property put up for sale by the judgment creditor was purchased by the claimant from the judgment debtor on 24/6/1998.
8. That after the sale agreement the judgment debtor handed over to the claimant the sales agreement letter in respect of the property.
9. The property which the judgment creditor is seeking to sale (sic) and which the claimant is claiming ownership Yankara market opposite Police outpost at Yankara.
10. That the sale agreement written in Hausa Language and its English translation are attached and marked Exhibits A and B respectively.
11. That the two shops among the sixteen shops bought by the claimant from the judgment debtor.
12. That the claimant is not in any way colluding with the judgment debtor.
13. That the claimant will wish this Honourable Court to determine the actual owner of the property sought to be sold.”
In paragraphs 4 and 5 of the counter affidavit the appellant/respondent averred that the property in dispute belongs to the judgment debtor and not the claimant.
By virtue of Section 137 (1) of the Evidence Act and following the decision in Alhaii Musa Kala Vs Alhaji Barau Potiskum & Ors. (supra), the onus of establishing ownership of the property in dispute lay on the respondent/claimant. The originating summons was determined on affidavit evidence. The trial court therefore had a duty to examine the affidavit evidence before it to determine whether the claimant had discharged the burden of proof on him. The only document relied upon by the respondent to prove his ownership of the shops in dispute is Exhibit A translated in Exhibit B. Exhibit B at page 15 of the record reads thus:
AGREEMENT
“I, Alhaji Ahmadu Musa Yankara have sold to Alhaji Bako Mai Wada Sabon Layin Galadima my sixteen shops (16) situated at Market side Yankara.
For the sum of Three Hundred Thousand Naira (N300,000.00) and he had paid in the presence of the following witnesses: –
1. Alhaji Yahaya Musa Faskari
2. Lawai Samaila Danaji
3. Babangida Musa Yankara
4. Alhaji Lawal Saban Layi
5. Alhaji Shehu Inuwa Imam.
Signed by the Seller Signed by the Purchaser
(24/6/1998)”
Section 15 of the land Registration Law Cap. 74 Laws of Katsina State 1991 is quite clear on the admissibility of any instrument affecting land. Section 15 provides:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”
Section 6 of the Law defines “instrument” as follows:
“instrument” means a document affecting land whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right, or title to, or interest in land, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
See: Ajao Vs Adigun (1993) 3 NWLR (282) 389 at 396-397 B.A.
It is evident from Exhibit B above that the document purports to transfer an interest in land to the claimant, namely sixteen shops at Yankara market. It is therefore a registrable instrument within the meaning of Section 15 of the Land Registration law of Katsina State. It is not in dispute that it has not been so registered. It is therefore inadmissible in evidence. The law is that where a registrable instrument, which has not been registered, is inadvertently tendered, and received in evidence, it should be discountenanced and ignored even where no objection was taken to its admissibility. See: Savannah Bank Plc. vs Ibrahim (2000) 6 NWLR (662) 585 at 603 A.B. However a registrable but unregistered instrument can be tendered and admitted in evidence to establish evidence of a transaction and to prove payment and receipt of money. If coupled with possession, it raises an equitable interest in the land. A purchase receipt is however not admissible to prove title. See: Savannah Bank Plc. Vs Ibrahim (supra) at 603 B-E; Olowolaramo vs. Umechukwu (2003) 2 NWLR (805)537; Ogunbambi vs Abowab (1953) 13 WACA 22.
Learned counsel for the respondent was correct when he stated that in a matter determined on affidavit evidence the duty of the court is to resolve the issue in controversy by considering the documents before it without more. The court also has a duty to apply the law correctly to the facts before it. In the instant case the non-registration of Exhibits A and B was brought to the court’s allention. They were exhibited to the supporting affidavit not to prove payment of money but to establish title. This view is buttressed by the averment in paragraph 13 wherein the claimant sought a determination of the actual owner of the attached property. There was no averment in the supporting affidavit showing that the claimant was in possession of the property. Not having been registered, Exhibits A and B ought to have been discountenanced by the court. The effect of the non registration of Exhibits A and B in breach of Section 15 of the Land Registration Law is that the claimant failed to discharge the onus on him of proving ownership of the shops in dispute.
Learned counsel for the respondent conceded that Exhibits A and B are inadmissible for non-registration but argued that the failure to register the document has not occasioned a miscarriage of justice and should not be a ground for reversing the judgment. This submission is clearly misconceived, as Section 15 admits of no discretion on the part of the Court. The exclusion of unregistered registrable instruments is prescribed by law. See: Savannah Bank Plc. Vs Ibrahim (supra). Learned counsel also relied on Section 227 of the Evidence Act, which provides:
227. (1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
With due respect to learned counsel, Section 227 (1) of the Evidence Act cannot avail the respondent because the decision of the court would certainly have been different if the court had not relied on the exhibits, being the only evidence before it in support of the claim.
The other issue to be considered is whether Exhibits A and B represent an outright sale in respect of which the Governor’s consent is required pursuant to Section 22 of the Land Use Act Cap. 202 L.F.N. 1990, which provides:
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained…”
A careful examination of Exhibit B reproduced earlier in this judgment shows that there was an outright sale of the shops to the claimant. The judgment debtor clearly stated that he had sold the shops and that the claimant had paid the purchase price in the presence of witnesses. The sale therefore falls within the purview of Section 22 of the Land Use Act for which the Governor’s consent ought to be obtained. There is nothing on the face of Exhibit B to show that the Governor’s consent to the transaction was sought or obtained. There is also no averment in the supporting affidavit in this regard. At page 12 of the record, the learned trial Judge made a finding that the transaction between the claimant and the judgment debtor was irregular for failing to obtain the Governor’s consent.
Section 26 of the Land Use Act provides:
“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
The learned trial Judge, having held that the Governor’s consent was not obtained, was clearly in error to have declared the non-compliance with Section 22 of the land Use Act a mere irregularity. In view of the clear provisions of the law the failure to obtain the Governor’s consent is a fundamental defect that goes to the root of the whole transaction.
It follows from all that I have said above, that based on the affidavit evidence before the court, the respondent failed to discharge the onus on him of proving ownership of the attached property. All the issues for determination in this appeal are hereby resolved in favour of the appellant and against the respondent.
The judgment of the High Court of Katsina State, Funtua Judicial division delivered on 5/5/04 in Suit No. KTH/FT/4/04 per Ibrahim M. Bako, J is hereby set aside. Costs of N5,000.00 are awarded in favour of the appellants against the respondent.
Other Citations: (2007)LCN/2372(CA)
