William Osayogie V. Bright Edokpayi (2004)

LawGlobal-Hub Lead Judgment Report

AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.

This is an appeal against the judgment delivered on 23/3/2001 by the High Court of Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice J. O. Sadoh (hereafter simply referred to as “the learned trial Judge”).

The Respondent (as Plaintiff) instituted the case against the Appellant (as Defendant) claiming a declaration of entitlement to the grant of statutory right of occupancy to a parcel of land, damages and injunction. The lower court in its judgment granted the reliefs sought by the Respondent.

The Appellant in the main controverted the case of the Respondent and denied the Respondent’s entitlement to the reliefs sought, The Appellant also set up a counter-claim against the Respondent in relation to the land in dispute.

Parties called witnesses in the proof of their respective cases. They also tendered documentary evidence. The Respondent testified in his own behalf and called other witnesses in the proof of his case. The Appellant equally testified in his own behalf and called other witnesses in the proof of his case. After being addressed by learned counsel to the parties, and having also evaluated the totality of the evidence adduced before it, the lower court found the Respondent to have succeeded in his claims and entered judgment in his favour with costs against the Appellant.

Being dissatisfied with the judgment of the lower court the Appellant lodged the instant appeal by a Notice of Appeal dated 17/4/2001 and filed on 20/4/2001. The Notice of Appeal contains five grounds of appeal. The Appellant subsequently filed an Amended Notice of Appeal dated 23/2/2011 on 9/3/2011. This process was deemed to have been properly filed by the Order of this Court granted on 2/7/2012. This process equally contains five grounds of appeal.

Parties duly filed and exchanged Briefs of Argument in compliance with the Rules of this Court. The appeal was entertained on 6/2/2014 with S. O. Ojeme (Miss) of counsel for the Appellant (and who it was that settled the Amended Appellant’s Brief of Argument dated 23/2/2011 and filed on 9/3/2011), adopting and relying on the same in aid of the stance that the appeal be allowed. B. O. Okoduwa (Mrs.) of counsel for the Respondent equally adopted and relied on the Respondent’s Brief of Argument settled by A. E. Odiah Esq. dated 21/5/2008 and filed on 23/5/2008 but deemed to have been properly filed and served on 13/9/2009, in urging this Court to dismiss the appeal.

Two issues (which were not married to the grounds of appeal) were formulated for the determination of the appeal from the five grounds of appeal, in the Amended Appellant’s Brief of Argument (hereafter to be simply referred to as “Appellant’s Brief of Argument”). The issues are: –

“1. If the Administrators of Elema Estate grant a piece or parcel of land to a Beneficiary absolutely for his benefit, can they grant the same land to another person?

2. What legal right has a trial court to reject any admissible evidence barring proof of fraud in respect thereof.”

These two issues were argued together in the Appellant’s Brief of Argument.

Two issues (which were married to the grounds of appeal) were formulated for the determination of the appeal in the Respondent’s Brief of Argument. They read thus: –

1. Whether the trial court was right when it rejected the documentary evidence, which purportedly transferred interest in land tendered by the Appellant having regard to their patently detective nature and if the answer is in the affirmative, whether the rejection of the documentary evidence has occasioned miscarriage of justice having regard to the totality of evidence before the court.

2. Whether or not the learned trial judge correctly and properly evaluated the evidence the evidence proffered before him by the parties leading to his holding that the respondent is entitled to a statutory right of occupancy in respect of the land in dispute.

As earlier stated, there are five grounds of appeal before the Court. Learned counsel for the Appellant did not marry the issues formulated for the determination of the appeal to the grounds of appeal. Learned counsel for the Respondent did so; but no issue was distilled by him in respect of ground 5 of the grounds of appeal. Ground 5 of the grounds of appeal before the Court reads: –

“The learned trial judge after having adjourned the case to the morning of 23rd March, 2001 for judgment he further instructed the parties to come back at 12 noon on that day and on their return the Defendant saw the star witness to the Plaintiff (Friday Elema) coming out of the chamber of the learned trial judge and Defendant then alerted his counsel. The Defendant thereafter petitioned the Chief Judge of the state copying the Chief Justice of the Federation.”

The ground of appeal re-produced above, in my considered view raises the issue of fair hearing.
The law is settled that when an issue of fair hearing is raised in an appeal and successfully established, the decision in the case in question must be set aside as there can be no basis for considering the correctness of a decision arrived at, in the breach of fair hearing. Against the backdrop of the position of law as hereinbefore stated, I would have wanted to dwell on the propriety of including this particular ground of appeal in the Notice of Appeal having regard to the complaint raised therein vis-a-vis the records of appeal. That is whether the complaint in the ground is such that can be raised or ventilated in an appeal.

However, I see no useful purpose doing this would serve, against the backdrop that the ground of appeal in question is glaringly not the object/subject of either of the two issues formulated by the Appellant for the determination of the appeal. Ditto, the issues formulated by the Respondent neither of which was married to the ground of appeal in question. In the circumstances, ground five of the grounds of appeal is hereby struck out as the same is deemed abandoned inasmuch as parties, and particularly the Appellant had not distilled any issue therefrom. See EYIGEBE V. IYAJI (2013) 11 NWLR (Pt.1365) 407 at 418 where the Supreme Court per Ogunbiyi, JSC; said to the effect that a ground of appeal which is alien to the judgment appealed against is incompetent and can in no way produce a competent issue for determination and ought to be struck out.

Equally, the Respondent it should be noted purported to have raised a preliminary objection in respect of the Notice of Appeal in his Brief of Argument. The preliminary objection would appear to have been rendered otiose or worthless given the fact that the Appellant had before the hearing of the appeal amended the Notice of Appeal. This is aside from the fact that learned counsel for the Respondent in any event never brought the pendency of the Notice of preliminary Objection to the notice of the Court talk less of arguing the same. Accordingly, the Notice of Preliminary Objection in the Respondent’s Brief of Argument is deemed abandoned and necessarily has to be struck out and is hereby struck out.

Issues formulated by the Respondent for the determination of the appeal are clearly better than those formulated by the Appellant given their clarity or intelligibility. I will therefore determine the appeal on the said issues.

As earlier stated, learned counsel for the Appellant argued together the two issues formulated for the determination of the appeal. He submitted to the effect that a document that is relevant must be admitted in evidence and that the question of proper custody is irrelevant and cited the case of Torti v. Ukpabi (1984) 1 SC 370 at 392, amongst others in aid. It is his stance that a court has no legal right to reject any admissible evidence. Stating that the Appellant acquired the land in dispute in 1976 as against the Respondent who acquired the same land from the same source in 1989, learned counsel submitted that the lower court ought not to have entered judgment in favour of the Respondent.

Learned counsel for the Appellant submitted that it was a serious error for the lower court to have granted a declaration of title to the Respondent as the land in dispute had already been granted by the Elema Estate Administrators to the “Taiwos” twelve years earlier in 1976. That Elema Estate Administrators therefore had no land to grant on the principle of “Nemo dat quod non habet”.

He thereafter proceeded to show how the principle applied in the circumstances of the instant case. Stating to the effect that the grant of the land to DW1 and his mother in Exhibit “P” dated 6/8/1976, by the Administrators of Elema family, and that DW 1 (a minor) later transferred the land to his mother to enable it to be sold, learned counsel submitted that the interest of DW 1 in the land could only be defeated by a purchaser of the land for value without notice of the prior equity and cited the cases of Registered Trustee of the Apostolic Faith Mission v. James (1987) 3 NWLR (Pt.61) 556 at 558; and Okoye v. Dumez (Nig) Ltd (1985) 1 NWLR 783 at 790 in aid.

And that such registrable interest is admissible in evidence. This is more so as the Respondent conceded before the lower court that “land title registration law (sic) Cap 81 Laws of Bendel State 1976 applicable in Edo State stipulates that unregistered dealings with registered lands is permissible”. In the circumstances it is the stance of learned counsel that the document of transfer from Taiwo to his mother satisfied the conditions of receipt/memorandum of transfer of land from Taiwo to his mother Janet Elema who subsequently transferred the land to the Appellant. That having admitted the receipt, the lower court ought to have considered it.

Learned counsel for the Appellant also submitted that the lower court erred by saying that “though Exhibit “P” is earlier in point of time, it cannot in my view have priority over Exhibit F2″ as issue of priority can only arise where the equities are equal which was not the situation in the instant case. Learned counsel concluded by saying that the lower court having arrived at the conclusion that the Appellant was granted the said piece or parcel of land in 1976 resiled from the right conclusion and gave judgment to the Respondent who had no title to the said land. That by virtue of Section 108 of the Evidence Act the lower court was obliged to have compared the signatures on the instruments that were before it in order to determine their genuineness. This Court was urged to award title to the Appellant as well as damages as claimed and costs.

RESPONDENT’S ISSUE 1:
Dwelling on the issue, learned counsel submitted to the effect that the lower court was right when it held that the Respondent proved his title to the land in dispute. He stated that the finding was arrived at after the court discovered that (i) the land in dispute is part of the Estate of Elema family; (ii) Elema family validly acquired the land; and (iii) both parties claim they acquired their title to the land in dispute from the Elema family. Learned counsel also expressed the view that it was worthy to note that in the instant case – (i) the Elema Estate is a registered land in the Lands Registry, Benin City and is therefore a legal estate; and (ii) that any assignment or disposition of any part thereof has to be registered or effectively taken possession of, to prevent a subsequent purchaser for valuable consideration from overriding the interest of a prior assignee.

Learned counsel for the Respondent submitted that the accusation that the lower court did not attach much probative value to Exhibit “P” tendered by the Appellant as an instrument affecting land and conveying title to him, has not basis.

This is because DW1 had nothing to transfer to the Appellant. That the lower court rightly rejected the agreement between the Appellant’s vendor (i.e. the mother of DW1) and DW1, on the ground of non-registration in the light of the provision of Section 16 of the Land Instrument Registration Law, Cap. 81 Laws of Bendel State, 1976 (now applicable in Edo State) and the case of Alao v. Akano (2005) 11 NWLR (Pt.935) 160 at 175, was cited in aid. That this is more so as the provision of Section 42(1) of the Land Title Registration Law Cap. 81 Laws of Bendel State 1976 (sic), applicable to Edo State stipulates to the effect that though an unregistered dealing with registered land is permissible but such interests shall be capable of being overridden by registered disposition for valuable consideration.

Learned counsel submitted to the effect that Exhibit “O” in the circumstances could not override the interest of the Respondent particularly as the lower court found the failure of the Appellant’s counsel to confront PWs 6 and 7 who denied the making of the Exhibit with the same under cross-examination, fatal to the Appellant’s case. Learned counsel submitted that where evidence before the court is not challenged or contradicted, the court has no other option than to act on it and it is not the duty of the court to descend into the arena and do the job of cross-examination for any of the parties and the case of First Bank of Nigeria Plc v. Onukwugha (2005) 16 NWLR (Pt.950) 120 at 128 was cited in aid.

Learned counsel also submitted that it was for the Appellant as a counter claimant to prove his case to the hilt and cited in aid the case of Ndoma-Egba v. ACB Plc (2005) 14 NWLR (Pt.944) 79. That in the instant case, the Appellant did not discharge the onus on him and that the non-admission in evidence of the document the Appellant has complained about has not occasioned any miscarriage of justice. This is because at best what the Appellant had over the land was an equitable interest which cannot prevail over a legal estate/interest purchased for valuable consideration without notice of the equitable interest. That the Appellant did not adduce evidence that he took effective possession of the land as to constitute sufficient notice to another person who intended to acquire the land from the Administrators of Elema Estate. Learned counsel urged this Court to dismiss the appeal consequent to the resolution of this issue in favour Respondent.

RESPONDENT’S ISSUE 2:
Dwelling on this Issue, learned counsel for the Respondent submitted to the effect that the lower court properly evaluated the evidence proffered by the parties before it in coming to the conclusion that the Respondent had proved his case and was therefore entitled to succeed. He stated to the effect that while the Respondent adduced evidence in support of his pleading, the Appellant glaringly abandoned most of the averments he made in relation to his counter-claim and he proceeded to highlight some of these.

The most important of which was the failure of the Appellant to tender the survey plan he claimed to have made in respect of the land in dispute. This is against the backdrop of the proper identification of a piece of land in dispute. Submitting that an appellate court does not interfere with the finding of facts made by the trial court, except where the trial court fails to make the proper inference from facts presented to it or where the court has not made good use of the opportunity of seeing and hearing the witnesses and citing the case of First Bank of Nigeria Plc v. Mainasara (2005) 2 NWLR (Pt. 952) 42, learned counsel urged this Court to resolve this Issue in the Respondent’s favour.

The means of acquisition of title to land are numerous and they include (i) first settlement on the land and deforestation of the virgin land; (ii) conquest during tribal wars; (iii) gift; (iv) customary grant; (v) sale; (vi) inheritance, etc; See AJIBOYE V. ISHOLA [2006] All FWLR (Pt. 331) 1209 at pages 1229 – 1230. Hence, the position of the law to the effect that in a claim for declaration of title to land, the court must be satisfied as to (i) the precise nature of title claimed i.e. whether it is title by original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise; and (ii) evidence establishing the nature of title. See ADESANYA V. ADERONMU [2000] FWLR (Pt.15) 2493.

In my considered view it is indisputable from the pleadings of the parties in the instant case and also as apparently disclosed in the Briefs of Argument of the parties that they both claim to have derived their respective titles to the land in dispute from Elema family the owners of the Elema Estate and the affairs of which is undertaken by named and ascertained Administrators. In this regard see page 2 of the Appellant’s Brief of Argument whereat learned counsel stated thus: –
“The Appellant acquired the land in dispute in 1976 as against the Respondent who allegedly acquired same in 1989 from the same source. While the Three Administrators of Elema Estate effected the allocation to Taiwo’s mother on behalf of Taiwo who was then an infant, it was Sunday Elema and Friday Elema who fraudulently purportedly resold the same land to the Plaintiff 12 years later i.e. 1989.”

In the same vein learned counsel for the Respondent stated on page 3 of the Respondent’s Brief of Argument thus: –
“…This finding was after the learned trial judge had reviewed the entire case to discover that the following facts are not in dispute.
(1) That the land in dispute is part of the Estate of Elema family.
(2) The Elema family validly acquired the land.
(3) That both parties claim they acquired their title to the land in dispute from the Elema family, page 134 lines 25 – 31 of the records refers. At pages 35 lines 1- 2, the learned trial Judge stated that the main issue in the suit is to determine who of the parties acquired a valid grant from Elema Estate.

In resolving this issue, there are salient facts that are worthy of note, thus (1) That Elema Estate is a registered land in the lands (sic) Registry, Benin City. It is therefore a legal Estate (ii) That any assignment or disposition of any part of it has to be registered or effectively taken possession of to prevent a subsequent purchaser, for valuable consideration from overriding the interest of the prior assignee.”

It is against the backdrop of the facts that the parties herein do not dispute the fact that they both derive their respective titles from a common vendor as it were, that the lower court, on page 135 of the records formulated the main issue for determination in the case to be: “who of the parties acquired a valid grant from Elema Estate?”

I cannot but say that the lower court in my considered view was very right in the issue it formulated for the determination of the case given the state of the pleadings of the parties and evidence adduced by them in the proof of their respective cases.

From the records, it is not in doubt that parties did not rely on viva voce or oral evidence in the proof of their respective titles to the land in dispute. They relied on documentary evidence. The admissible viva voce or oral evidence which they can properly adduce in respect of the documents they relied upon in the proof of their respective titles must be such that was to introduce the documents into evidence. This must be so as the trite position of the law is to the effect that documents speak for themselves.

Therefore oral evidence cannot be adduced to vary the content of a document save in specific situations as stipulated in Section 132 of the Evidence Act Cap. 112, LFN, 1990. See F.I.B. PLC v. PEGASUS TRADING OFFICE (2004) 17 NSCQLR 668 at 677 – 679. It is however to be noted that despite the position of the law that documents when tendered and admitted are like words uttered, and speak for themselves, oral evidence must still be called in support of them to relate them to the case of the party relying on them (i.e. documents). See ALAO v. AKANO (2005) 11 NWLR (Pt.935) 160; and EGBA v. APPAH (2005) 10 NWLR (Pt.934) 164.

One of the grouses learned counsel for the Appellant has with the judgment of the lower court in the instant appeal is that admissible evidence was not admitted and/or that admissible evidence having been admitted was not given adequate consideration by the lower court. I cannot but state that learned counsel for the Appellant was not specific as to the admissible evidence that was either expunged from the records by the lower court and/or which was tendered by him but was marked “tendered but rejected”. I have painstakingly perused the records and I do not see any document that was tendered by the Appellant and which the lower court rejected in evidence.

It is clear as crystal that it is the document dated 6/8/1976 and which was admitted and marked Exhibit “O” that the Appellant predicated the proof of his title to the land in dispute upon. Learned counsel for the Appellant has stated that the lower court chose to rely on the document made in 1989 evidencing the sale of the land in dispute to the Respondent by two out of the representatives of the Elema family in charge of Elema Estate. That this the lower court did, in spite of Exhibit “P” which was admitted as a receipt of payment, thereby creating an equitable estate in the Appellant’s favour.

The lower court is undoubtedly under a duty in law to determine the case before it upon legally admissible evidence, just as this Court is. See OKWARANONOBI V. MBADUGHA (2013) NWLR (pt.1383) 255. At the trial, the Appellant did not successfully challenge the authenticity of any of the documents tendered by the Respondent in the proof of his title to the land in dispute. On the other hand, learned counsel for the Respondent successfully challenged the use of Exhibit “P” as a document evidencing the transfer of the land in dispute to the Appellant on the ground that it is a registrable instrument but was not registered. The document – Exhibit “P” was however admitted in the proof of the fact of payment in respect of the transaction it evidenced.

The Appellant has not remotely challenged the documents of title to the land in dispute tendered by the Respondent. Learned counsel given his submissions would however appear to be obliquely challenging the non-admissibility of Exhibit “P” as a document evidencing the transfer of the land in dispute to the Appellant, when he submitted that “a trial court has no legal right to reject admissible evidence.” I cannot but first state that the lower court did not reject Exhibit “P” in evidence. The said court only clearly admitted it for a specific purpose to wit: as a receipt of payment. It is correct that relevancy is the basis of admissibility of documentary evidence as learned counsel for the Appellant would appear to have argued. See OMEGA V. OBC LTD NSCQLR 21 (2005) 771. This position of the law in my considered view cannot however open a floodgate for the admission in evidence of documents which by law are not admissible in evidence for the non-fulfillment of conditions put in place by the law itself for their admissibility. Hence, the courts have consistently held and this is in compliance of the law that a document transferring interest in land such as Exhibit “P” is not admissible in evidence if it is not registered and it is being tendered in the proof of the fact of the transfer of the land to which it relates. See ASUQUO V. EYO (2013) All FWLR (Pt.707) 764. The lower court in my considered view was therefore very right when it admitted Exhibit “P” as a receipt only.

Having regard, to the evidence on the printed records the Appellant certainly did not get the land that he bought directly from the Administrators of Elema Estate. He got it from DW1. In other words DW1 is his vendor. In this regard I find as very compelling the evidence of the Appellant on page 131 of the records when he said thus: –
“…I remember twenty-three years ago, it was the year 1977 when Taiwo Elema approached me if I will be interested in a piece of land allocated to him. I requested to see the document and later requested for a photo-copy of it. Taiwo further told me that his mother will sell the land. The land was sold to me. I paid N5,000.00 for the land. I got all the documents pertaining to the land. I also saw got the receipt for the money paid. I see exhibit P, it is the receipt I got from Taiwo’s mother. I also got the application made by Taiwo to the Administrators of the Estate. Taiwo and his mother took me to the Administrators which they did before I parted with my money….”

Exhibit “O” is the application made to the Administrators of Elema Estate by Taiwo Elema who testified as DW1. The application was not made by him and his mother jointly. The Exhibit does not disclose in any way that DW1 had a mother as at the time the Exhibit was made – i.e. 6/8/1976. Dwelling on Exhibit “O” in his evidence DW 1 stated on page 129 of the records thus: –
“I know the Defendant very well. We gave him a piece of land some years ago. I got the piece of land through my late brother Jonathan Elema. This is evidenced in writing. The document shown to me is the document, it is an approval. ……… I know Janet Elema. She is my mother. When I was given this piece of land by my family, I was about 10 years old. When I was given the piece of land I was very small and when I showed the land to the defendant he said he could not deal with me; so I directed him to my mother. My mother negotiated with the defendant and a transfer document was executed…”

Though DW1 further testified on page 130 of the records that he had an agreement with his mother before she negotiated the sale, the records does not bear it out no such agreement was tendered talk of having been marked “tendered but rejected”.

The Appellant clearly knew the fact that the Administrators of Elema Estate denied allocating any parcel of land to DW1 before both DW1 and the Appellant testified. The Respondent did not shield any of the Administrators of Elema Estate from appearing before the court. The surviving ones were PWs 6 and 7 and they appeared and gave evidence in the proof of the fact that the Administrators of Elema Estate sold the land in dispute to the Respondent. At all times material to when the Administrators of Elema Estate gave evidence, the Appellant who claimed to have procured the land in dispute from the same people never confronted them with Exhibit “O”. DW1 from his evidence would appear to have let out of the bag why the third of the Administrators (through whom he claimed to have got the land) was not called as a witness by the Respondent. This is because he had since died. Hence DW1 used the word my late brother Jonathan Elema, in his evidence-in-chief.

It is from some other pieces of evidence before it and the ones I have reproduce above, that the lower court held that the mother of DW1 had no land to sell or transfer as she had no title to the land and there was nothing establishing that the land which DW1 claimed to have been allocated to him was ever transferred to the mother. In any event it is not in doubt that the lower court by believing the evidence of PWs 6 and 7 (i.e. the surviving Administrators of Elema Estate) as to the party they sold and transferred the land in dispute to, also eloquently found DW1 who claimed to have acquired the same piece of land when he was about 10 years old, not to have proved the acquisition of the same from the Administrators of the said Elema Estate.

It is interesting and equally disturbing that learned counsel for the Appellant has argued that the lower court should have compared the signatures on the instruments, I find the submission disturbing because, learned counsel would appear not to know his duty as counsel and that of the court as an impartial arbiter or umpire that it should be. No court is expected to undertake the duties of counsel as a court if it does so lays itself open to accusation of bias. The court in my considered view is basically to use its authority to ensure that rules of court and evidence as well as fair play or evenhandedness, amongst others, are adhered to during trial. A counsel who due to lack of prowess does not prosecute his client’s case as appropriate, is being most uncharitable to himself by trying to pass the buck or fault to the court.

One cannot but wonder why learned counsel who saw that signatures on the instruments needed to be compared did not simply do so through the forensic art of cross-examination. Perhaps learned counsel does not know that cross-examination could be put to such a use. Be that as it may.

The unequivocal situation before the lower court given the evidence on the printed records and which the lower court in my considered view properly evaluated was that the Appellant did not successfully challenge the evidence adduced by the Respondent that he bought and got the land in dispute from the Administrators of Elema Estate and that the Appellant also failed most woefully to establish the case he set up in his pleadings for the purpose of controverting the case of the Respondent. As the Respondent undoubtedly established the valid sale of the land in dispute by the Administrators of Elema Estate to him, the lower court certainly had no option than to have found him to have a valid title to the said land in dispute. While the said court could not have found valid title to the land in dispute in the Appellant who never traced his alleged title to the land described in document he got from DW1.

This is aside from the fact that DW1 and the Appellant by hiding as it were, the document by which DW1 purportedly acquired title to the land which the Appellant bought from the mother of DW1, from the Administrators of Elema Estate clearly supported the case of the Respondent challenging the authenticity of the said document. In other words, the Appellant never established any valid title to the land in dispute as residing or vested in his vendor. A court is empowered and bound to draw inference as to the existence of facts where there is no evidence to the contrary. See OLUSANYA V. OSINLEYE (2013) 7 NWLR (Pt.) 148.

Flowing from all that has been said above is that both of Respondent’s issues 1 and 2 are resolved in his favour; while Appellant’s Issues 1 and 2 are necessarily also resolved against him.

In the final analysis, the appeal is unmeritorious as the two Issues formulated for determination therein have been resolved in favour of the Respondent and against the Appellant. Accordingly the appeal is dismissed and the judgment of the lower court delivered on 23/3/2003 is affirmed.

Costs in the sum of N25,000.00 is awarded in favour of the Respondent and against the Appellant.

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Other Citations: (2004)LCN/1554(CA)