West African Cotton Ltd. & Anor V. Ibrahim Haruna (2007)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This appeal is against the judgment of the Katsina State High Court of Justice, sitting in Funtua Judicial Division, dated 29/6/2004, presided over by I. M. Bako, J, in an interpleader proceedings filed by the respondent, claiming ownership of property situate at Yar Malamai Road (Cinema House) covered by certificate of occupancy No. FAS/A/0089. The lower court entered judgment in favour of the respondent.
The facts leading to this appeal briefly are as follows: The appellants were judgment creditors in the case of (1) WEST AFRICAN COTTON LTD (2) ZAZZAU GINNERY LTD. VS. IBRAHIM HARUNA in suit No.KTH/FT/23/98. By the leave of the Katsina State High Court sitting in Funtua dated 17/11/2003, the immovable property of the judgment debtor situate at Yar Malamai Road (Cinema House) in Yankara town in Faskari Local Government Area was attached.
That prior to the date fixed for auction sale, the present respondent filed originating summons with 14 paragraph affidavit to which it annexed three Exhibits claiming the ownership of the said properties attached. The appellants also filed a 6 paragraph counter affidavit on the premises that judgment debtor in suit No. KTH/FT/23/98 is still the rightful owner of the property attached.
The counsel to the parties advanced argument on whether or not the judgment debtor in suit No. KTH/FT/23/98 still remains the owner of the said property. The lower court in its ruling delivered on 29/6/04 in favour of the respondent said as follows:
“I have carefully considered the agreements of both counsel with the supporting affidavit, counter affidavit and the authorities cited.
As I have observed in other sister cases to this one including suit No.KTH/FT/20/03, it is not open for the defendant to challenge the legality of the transaction that has taken place on 23rd September, 1998 merely for the purpose of enabling him to attach and sell the property in question inspite of exhibits A, B and C attached to the affidavit in support.
Secondly the same conditions that apply to the judgment debtor or the claimant as regards the securing of the consent of the local Government Chairman first before any transaction involving the property under Sections 21 and 22 of the land Use Act also apply to the judgment creditor.
The latter has not told this Court he has also obtained the requisite consent to enable him sell the said property by auction since he has already attached it. No evidence of such consent is before the Court. He is therefore equally guilty of the same default.
Finally I opine that with exhibits A, B and C before me I cannot but answer the 1st prayer in the originating summons in the negative. That is to say that the judgment debtor does not retain ownership of the property situated and lying behind the railway line Yarmalamai Road, Yankara Town, covered by Faskari Local Government C of O No. FAS/A/0089 now sought to be attached and sold by the judgment creditors in fulfillment of the judgment of this Court delivered on 25/11/98 between the judgment creditors and the judgment debtor.
Consequently the judgment creditors cannot sell the properties in question in fulfillment of the judgment of the Court delivered on 25/11/98 between the judgment creditors and the judgment debtor.”
Being dissatisfied with the judgment of the said court, the appellants filed a Notice of Appeal, dated 6/7/2004, containing four grounds of appeal. The said grounds of appeal with their particulars are as follows:
“GROUND ONE:
The learned trial Judge erred in law to have accorded strong probative value on Exh. A translated into Exh. B.
PARTICULARS OF ERRORS:
a. That it is trite law that Exh. B is a mere acknowledgment receipt.
b. That Exh. B per se cannot vest absolute interest or ownership in land.
c. That the claimant is not in possession of the said property.
GROUND TWO:
The learned trial Judge erred in law to have Admitted Exh. B in evidence.
PARTICULARS OF ERRORS:
a. That Exh. B is registrable instrument but was not registered.
b. That Exh. B was executed on 23/9/1998.
c. That the prerequisite necessary consent before the execution of Exh.B was never sought nor obtained.
GROUND THREE:
The learned trial Judge erred in law when he said “secondly, the same conditions that apply to judgment debtor or the claimant as regards the securing of the consent of the Local Government Chairman 1st before any transaction involving the property under SS.21 and 22 of Land Use Act apply to the judgment creditor. The latter has not also obtained the requisites consent to enable him sell the said property by auction since he has already attached it. No evidence of such consent is before the court. He is therefore equally guilty of the same default.”
PARTICULARS OF ERRORS:
a. That the Judgment should be confined to issue(s) raised by the parties.
b. That the lower court raised the above statement suo motu.
c. That parties were not heard on the issue raised.
GROUND FOUR:
a. The decision of the lower court is against the weight of the affidavit evidence.
b. Further ground(s) of appeal will be filed on receipt of the record of proceedings.”
The appellants distilled four issues from their grounds of appeal for the determination of this appeal as follows:
“2.1 To what extent is Exh. A translated in Exh. B can be relied upon in proving ownership of a landed property.
2.2 Whether Exh. A translated in Exh. B is admissible instrument.
2.3 Whether the learned trial Judge can suo motu raise and determine issues not placed before him.
2.4 Whether the evidence before the trial court was correctly weighed having regard to the burden of proof in interpleader’s proceedings.”
The respondent in the respondent’s brief dated and filed on the 16/2/07, formulated only one issue as follows:
“Whether the interpleader proceedings is the proper avenue for the determination of the legality or otherwise of the sale transaction between the Respondent and Amadu Musa Yankara (Judgment Debtor) as per exhibit A & B.”
At the hearing of the appeal, Mr. U.A. Mbuko, learned counsel for the appellant adopted the appellants’ brief and urged the court to allow the appeal and set aside the decision of the lower court.
Learned counsel for the respondent, Mr. Lawai A. Amah, also adopted the respondent’s brief and urged the court to dismiss the appeal and affirm the decision of the lower court.
It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below.
When a ground has not the remotest connection with what the court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the appellate court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply, be the appeal as what is set down as a ground of appeal is non existenct being no more than a figment of imagination of the appellant. See M.B.N. PLC VS. NWOBODO (2005) 14 NWLR (PT.945) 379 at 387. It is in this connection that I intend to consider grounds of appeal Nos. 3 and 4 in this appeal as well as the issues formulated therefrom. As ground three was not formulated from a decision of the learned trial judge but from the comments of the learned trial judge during the course of hearing of the application as the action was commenced under originating summons, supported by affidavit and counter affidavit, hence the issue of weight of evidence does not even arise. For the reasons stated, grounds 2.3 and 2.4 and the issues formulated therefrom are discountenanced. I intend to take the submission of both counsel on issues 2.1 and 2.2 together and determine same together.
It is the submission of the learned counsel for the appellant on issue number 2.1, ‘that the respondent in discharging the onus of ownership of the property in question, relied on the averments in his affidavit in support particularly paragraphs 7 – 11 and Exhibits A, B and C. That in the determination of this issue, it is humbly submitted that Exhibit A translated in Exhibit B is a mere acknowledgment receipt without more. See MANYA VS. IDRIS (2000) FWLR (PT.23) 1237. Learned counsel for the appellants further submitted that Exhibits A and B therefore cannot vest absolute interest or ownership in law, without proof of the respondent’s possession. He stated that it is apt at this stage with respect to draw the attention of the court to the entire averments in the respondent’s affidavit in support and all the exhibits A, B and C. According to the learned counsel for the appellant there is no iota of evidence to show that the respondent had ever been in possession of the said property. It further submitted that it is a cardinal principle of law that Exhibits “A” and “‘B” can only pass interest in land when the judgment debtor, owner of Exhibit “C” sought and obtain the consent of the Governor as required by Section 22 and 26 of Cap 202 of the Laws of the Federation of Nigeria 1990. See SAVANNAH BANK PLC VS. IBRAHIM (2000) FWLR (PT.25) 1626 at 1630 paragraph 3. It is argued that paragraph 8 of Exhibit C prohibits such transaction without the necessary consent.
That it is trite law that no court of law decides in vacuum nor manufacture facts as it can only adjudicate on the basis of facts placed before it. Concluding his submission on this issue, learned counsel for the appellants submitted that by the contents of Exhibit C, the property in issue still belongs to Alhaji Amadu Musa Yankara (Judgment Debtor) and not Ibrahim Haruna (the claimant). It is further emphasised that Exhibits A and B are mere agreement to assign, and there is nothing before the court on respondent’s possession or efforts made to seek the consent of the Governor prior or after the transaction and urged the court to resolve the issue in favour of the appellants.
On issue No. 2.2, it is stated that in discharging the burden of proving ownership of the property in issue, the respondent relied on Exhibits “A”, “B” and “C”. The respondent stated that he purchased the property in question on 23/9/98 from the judgment debtor, Alhaji Amadu Musa Yankara. It is contended that by virtue of Exhibit A translated in Exhibit B, the purported transferred property was purchased since 23/9/98, it ought to have been registered within six months from 23/9/98. See SAVANNAH BANK PLC VS. IBRAHIM (supra) 1626 at 1632 paragraphs 9 – 10. He contended that it is trite law that a registrable instrument not registered shall not be admissible in evidence, the only exception to this law is where there is evidence of possession in favour of the respondent.
It is further submitted that there was nothing before the court evidencing possession in favour of the respondent. That however, the learned trial Judge, did not only admit Exhibits A and B in evidence but placed much reliance on them in arriving at his decision thereby occasioned a miscarriage of justice against the appellants who by virtue of Exhibit C ought to have judgment in their favour. Learned counsel for the appellants urged the court to hold that Exhibits A and B, are not admissible in evidence as registrable instrument and should be expunged, as in the case of EGHOBAMIEN V. FEDERAL MORTGAGE BANK (2002) 11 NSCQR 183 at 190 – 191. In conclusion, learned counsel for the appellants urged the court to allow the appeal and set aside the judgment of the lower court.
In his response, learned counsel for the respondent, submitted that the main facts before the trial court was purely affidavit evidence. That from the affidavit of both parties, the learned trial Judge arrived at the decision reached. It is argued that nothing extraneous or extrinsic as alleged by the appellants was considered as there was no other material for the trial Judge to rely upon in the exercise of his discretion to decide the matter other than the affidavit evidence of both parties.
A court can use its discretion in resolving matters by resorting to the documents and facts before it without more. See EZEGBU V. F.A.T.B. LTD. (1992) NWLR (PT.220) 669 at 720. However, the learned counsel for the respondents concedes that Exhibits A and B are inadmissible ‘in evidence for the reasons given by the appellants. See Section 15 Land Registration Act Cap 515, Laws of Federation of Nigeria, 1990 which is in pari materia with Section 15 Land Registration Law Cap. 74, Laws of Katsina State of Nigeria, 1991 and the case of ABU V. KUYANBANA (2002) 4 NWLR (PT.758) 599 at 602.
According to the learned counsel for the respondent, the admission of the inadmissible evidence is not a ground to reverse the judgment and placed reliance on Section 227 Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990. It is argued that the interpleader procedure is not the proper cause of action to determine the legality or otherwise of the sale transaction between the appellant and the Judgment Debtor (Alhaji Amadu Musa Yankara). In conclusion learned counsel for the respondent urged the court to dismiss the appeal and affirm the judgment of the learned trial Judge. In the interpleader proceedings the parties as well as the court relied on affidavit evidence, it is therefore pertinent to reproduce some of the relevant paragraphs of both the affidavit in support as well as the counter-affidavit. The affidavit in support was deposed to by Lawal A. Amah Esq, of No. 21, Katsina Road, Funtua, the principal partner in the Law Firm of Messrs Lawal A. Amah & Co, Solicitors to the applicant/respondent. Paragraphs 7- 11 of the affidavit reads as follows:
“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 23/9/98.
8. That after the sale agreement the judgment debtor handed over to the claimant the Certificate of Occupancy in respect of the property.
9. The property which the judgment creditor is seeking to sale and to which the claimant is claiming ownership is situated and lying behind railway line Yarmalamai Road Yankara town. Covered by Faskari Local Government Certificate of Occupancy No. FAS/A/0089.
10. That the sale agreement written in Hausa language and its English translation are attached and marked as Exhibit A & B respectively.
11. That the Certificate of Occupancy issued to the judgment debtor which he later handed over to the claimant is hereby annexed as Exhibit C.”
The respondents/appellants also filed a counter affidavit of 6 paragraphs deposed to by one Miss Melody Ogbu, Litigation Secretary of N.B. Mbamelu & Co, Funtua, deposed in paragraphs 1 – 6 as follows:
“1. That I am the litigation secretary in the firm of Messer’s N.B. Mbamelu and by virtue of my position, I am familiar with the facts of this matter.
2. That I have the authority of my employer and the judgment creditors to depose to the following facts.
3. That in the course of my duties aforementioned, on 23rd of April at about 4.00pm, I was informed by N.B. Mbamelu Esq., which information I verily believe to be true and correct as follows:
4. That the claimant is not the rightful owner of the purported property.
5. That the judgment debtor is the rightful owner of the said property.
6. That I depose to this affidavit in good faith And in accordance with the Oaths Act.”
The general rule is that whoever asserts must prove to succeed in his claim. See WEST AFRICAN CHEMICAL CO. LTD. VS. CAROLINE POULTRY FARM NIG LTD (2000) NWLR (PT.644) 197 at 204. The burden of proof in a civil suit or proceedings lies on that person who would fail if no evidence at all were given on either side. In civil cases, the burden of first proving the existence or non existence of a fact lies on the party against whom the judgment of the court will be given if evidence were not produced on either side and if such party gives evidence which ought reasonably to satisfy a Jury or Court the fact sought to be proved is established, the burden lies on the party against whom judgment will be given if no more evidence were adduced. See; Section 137 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990.
However, the principle governing the burden in interpleader proceedings was restated by the Supreme Court in ALHAJI MUSA KALA VS. ALH. BARAU POTISKUM & ORS. (199B) NWLR (PT.540) 1; (1998) 1 SCNJ 143 at 158 – 159 (17 – 18 NWLR) per Iguh, JSC as follows:
“It is trite that in interpleader proceedings, the claimant is generally deemed to be plaintiff and the judgment creditor the defendant). Accordingly, the burden of proof again as a general rule is on the claimant as the 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 person’s interest or title he claimed. Where however the claimant was in possession of the property in issue 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 burden shall be on the judgment creditor to establish his claim.
It is averred particularly in paragraph 7 of the supporting affidavit deposed to on behalf of the respondents/applicants that one of the immovable property put up for sale by the judgment creditor was purchased by the claimant from the judgment debtor on 23/9/98 and that the certificate had been handed over to the claimant by the judgment debtor.
Section 15 of the land Registration Law Cap. 74, Laws of Katsina State of Nigeria, 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 in, and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
See AJAO VS. ADIGUN (1993) 3 NWLR (PT.282) 389 at 396 – 397 paragraphs B – A.
It is crystal clear from the contents of Exhibit “B” that it is evidence of the sale of the property as averred No. FAS/A/0089 and the document attached to the supporting affidavit along with Hausa version Exhibit “A” can only establish the sale of the said property but certainly not to prove transfer of title from the judgment debtor, Amadu Musa Yankara to Ibrahim Haruna, the claimant.
From the definition of “instrument” stated above Exhibits “A” and “B” cannot by any stretch of imagination be described as instrument as defined in Section 6 of the Land Registration Law, Cap. 74, Laws of Katsina State of Nigeria provided above. That being the case, Exhibit “B” is in fact inadmissible for the purpose of proving transfer of title from the Judgment Debtor to the claimant inspite of the fact that the sale transaction was said to have taken place on the 23/9/98. The originating summons is dated at Funtua the 29th day of December, 2003, many years after the said sale of the properly to the claimant by the Judgment Debtor.
In view of the above, I hold that Exhibit “B” translated in the instant appeal has no evidential value as far as the issue of transfer of title is concerned. Consequently, the learned trial Judge is with respect wrong when he held that the Judgment creditor cannot sell, the properties in question in fulfillment of the Judgment of the Court delivered on 25/11/98 between the Judgment creditor and the Judgment Debtor on the ground of the sale transaction that took place on the 23/9/98, relying on sale receipt Exhibit “A” translated in Exhibit “B” attached to the supporting affidavit to the originating summons. It is needless to say that mere possession of a certificate of occupancy of a property in the name of a Judgment debtor by a claimant does not in any way amount to a transfer of title by the Judgment debtor to the claimant.
In the result, I hold that this appeal is meritorious and must and is hereby allowed. The judgment of the Katsina State High Court holden in Funtua Judicial Division in Suit No. KTH/FT/22/03 delivered on 29/6/2004 by Hon. Justice I. M. Bako, of the Katsina State High Court is hereby set aside. Since costs follow events, I award N5,000.00 costs to the appellants against the respondent.
Other Citations: (2007)LCN/2397(CA)
