ALHAJI AMINU JUBRILLAH ABDULLAHI & ORS V MRS. CHRISTIANA IYABO ADETUTU

Legalpedia Citation: (2019-04) Legalpedia 87731 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Apr 12, 2019

Suit Number: SC.132/2013

CORAM

Olabode Rhodes-Vivour Justice, Supreme Court

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice, Supreme Court

Chima Centus Nweze Justice, Supreme Court

Amina Adamu Augie Justice, Supreme Court

Paul Adamu Galumje Justice, Supreme Court

PARTIES

1. ALHAJI AMINU JUBRILLAH ABDULLAHI
2. AHAJI JUNAID JUBRILLAH ABDULLAHI
3. HADIJA KHADIJAT IBRAHIM (For Themselves And On Behalf Of The Estate Of Alhaji Jubrillah Abdullahi, The Original First Appellant)
4. RASHEED ADETOKUNBO 5. JAMES OJO

APPELLANTS

MRS. CHRISTIANA IYABO ADETUTU

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

At the trial Court, the High Court of Lagos State, Ikeja Judicial Division, the appellants [as plaintiffs] claimed that the grantor of the land in dispute, One Bisiriyu Adetokunbo, had only 3.7 acres of land. These devolved on him by the Idi Igi method of distribution. Prior to his demise, he sold portions of the land to other persons. That was prior to the sale to the respondent. The Appellant equally claimed that the deceased first appellant was in possession through a house built on part of the land.

The respondent on the other hand claimed that the vendor, Bisiriyu Adetokunbo,was seised of the land in dispute on a distribution based on the Ori Ojori system. He, the vendor, sold 4.908 acres to her. The respondent claimed that sequel to the purchase, the vendor put her into possession. She has remained in possession and physical occupation of the land. She subsequently established a poultry farm on the land – a farm the appellant, forcibly, entered into and destroyed on January 26, 1993.

The trial Court found for the plaintiff. The Court of Appeal further affirmed that decision.

Dissatisfied with the judgement of the Court of Appeal, Lagos Division, which allowed the appeal in part, the appellants further appealed to this Court.

 

HELD

Appeal dismissed

ISSUES

1. Whether the non-visit to the locus in quo was fatal?
2. Whether the lower Court erred when it agreed with the trial Court that the appellants’ document of title, exhibit D8, was inadmissible?
3. Whether the lower Court did not cause substantial miscarriage of justice when it failed to consider properly issues canvassed by the appellants relating to Grounds 1, 3 and 4 of the Notice of Appeal before it?
4. Whether the trial Court discharged its duty of ascribing value to the evidence?

RATIONES DECIDENDI

POSSESSION – HOW POSSESSION IS DETERMINED BETWEEN TWO PARTIES ASSERTING RIGHT OF POSSESSION BY ACTS OF OWNERSHIP

…The law is that if there are two persons on the land each asserting that the land is his and each doing something in assertion of the right of possession and one of them is in actual possession and the other is not, if the question is, which of the two is in actual possession? The answer is that the person who has title is in possession and the other is a trespasser. See, Jatau v Danladi [1993] 8 NWLR (pt 415) 597

I think, I cannot agree more with the above finding of the lower Court. Indeed, the law is very much unequivocal on the issue of who is in actual possession, where there are two or more persons claiming ownership of a piece of land. That is to say, the claimant with a better title that’s in possession. See Jatau v Danladi [1993]8 NWLR (pt 45) 579; Kyari v Alkali [2001] 6 NSCQR (pt 2) 819, 856 [2001] 5 SC (pt.11) 192; Mogaji v Cadbury Nig. Ltd [1985] 2 NWLR (pt 7) 393; Da Costa v Ikomi [1968] 1 ANLR 382, 390; Adeniran v Alao [2002] 4 WRN 1,9; Hassan v Jauro [2002] 25 WRN 18, 22 [pages 176 – 177 of the record; italics supplied for emphasis]. – Per C. C. Nweze, JSC

PERVERSE – WHEN A DECISION IS DEEMED PERVERSE – WHEN AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF DISCRETION OF THE TRIAL COURT

As it is well-known, a decision is said to be perverse:(a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) When it has occasioned a miscarriage of justice, Misr 1 v. Ibrahim [1975] 5 SC 55; Incar Ltd.v. Adegboye [1985] 2 NWLR (pt. 8) 453; Atolagbe v. Shorun [1985] 4 SC (pt.1) 250, 282. The appellants failed to demonstrate that the said concurrent findings fall into any of these categories. Even then, a visit to the locus in quo is not mandatory for it, [the visit], is at the request of both parties. It depends on the state of the evidence, Iwuno and Ors v. Dieli and Ors [1990] 5 NWLR (pt.149) 126; Ukaegbu and Ors v Nwololo [2009]3 NWLR (pt 1127)194. Such a visit is a matter for the discretion of the Judge if he is of the opinion that he will get a better grasp of the evidence that has been adduced before him, Ezeokeke and Ors. v. Uga and Ors. (1962) 1 All NLR (pt. 4) 482, 486; Nwankpu v. Ewulu[1995] 7 NWLR (pt.407) 269. In other words, it is clearly at the discretion of the trial Judge to determine whether in the light of the evidence before him, there is need to resolve, by a visit to the locus in quo, the conflict of evidence or clear a doubt as to the accuracy of a piece of evidence when there is such conflict of evidence, Nwankpu and Anor v Ewulu and Ors (1995) LPELR – 2107 (SC) 38; D – E; [1995] 7 NWLR (pt 407) 269. It needs to be emphasised here that an appellate Court will usually not interfere with an exercise of discretion in its quest to obtain substantial justice except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all necessary consideration having regard to the circumstances of the particular case, United Spinners (Nigh. Ltd. v. Chartered Bank Ltd [2001] 14 NWLR (pt. 732)195; Nzeribe v. Dave Engineering Co.Ltd [1994] 8 NWLR (pt. 361) 124.

Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity, Anyah v. A. N. N. Ltd [1992] 6 NWLR (pt. 247) 319; University of Lagos v. Aigoro (supra); Niger Construction Ltd v. Okugbeni [1987] 4 NWLR (pt. 67) 787; 7-Up Bottling Company Ltd v. Abiola and Sons Ltd [1995] 3 NWLR (pt. 383) 257, 285; University of Lagos v. Olaniyan [1985] 1 NWLR (pt. 1) 156. Neither at the lower Court nor before this Court did the appellant advance superior or useful arguments capable of moving the Court to interfere with that exercise of discretion of the trial Court.

Thus, circumstances that could warrant such a visit include the following: where there is a conflict of evidence as to the existence or otherwise of something material to the case and such a visit would resolve the conflict in evidence or would clear a doubt as to the accuracy of any piece of evidence on the subject, Seismograph Service (Nigeria) Ltd. v. Akporuovo [1974] 6 SC 119, 128; Seismograph Service (Nigeria) Ltd. v.Ogbeni [1976]4 SCNLR 5, 104 -105; Ipinlaiye ll V Olukotun [1996]6 NWLR (pt. 453) 148; Atumeyi v. Achimugu (1980) NMLR 90, 92. – Per C. C. Nweze, JSC

UNREGISTERED REGISTERABLE INSTRUMENT – THE ADMISSIBILITY OF AN UNREGISTERED REGISTERABLE INSTRUMENT – CONDUCT OF COURTS IN ADMITTING UNREGISTERED REGISTERABLE INSTRUMENT

I must note right away, that the admissibility or otherwise of an unregistered registerable instrument depends on the purpose for which it is being sought to be admitted, Akintola v. Solano [1986] 2 NWLR (pt.24) 598; Registered Trustees of Muslim Mission Hospital Committee v. Adeagbo [1992] 2 NWLR (pt. 226) 690; Oredola Okeya Trading Co. v. Attorney General, Kwara State [1992]7 NWLR (pt. 254)412; Co-operative Bank Ltd v. Lawal [2007]1 NWLR (pt.1015)287; Etajata v. Ologbo [2007] 16 NWLR (pt.1061) 554; Gbiniie v. Odji [2011] 4 NWLR (pt.1236) 103.

An unregistered registrable instrument, sought to be tendered for the purpose of proving or establishing title to land or interest in land, would be inadmissible under Section 15 of the Land Instruments Registration Law, Oredola Okeya Trading Co. v. Attorney General, Kwara State (supra); Co-operative Bank Ltd v. Lawal (supra); Etajata v. Ologbo (supra); Gbinijie v. Odji (supra).

Such a document, derided as an “amorphous document,” Umoffia v Ndem [1973] 12 SC (Reprint) 58, is not receivable in evidence for the purpose of establishing any right, title or interest in land being unregistered, Section 15, Land Instruments Registration Law , Umoffia v Ndem (supra). If it is however tendered to show that there was a transaction between the lessor and the lessee, it will be admissible as a purchase receipt. It will also be admissible if it is meant to establish a fact which one or both parties have pleaded. Under these two conditions, such a document does not qualify as an instrument as defined in the Land Instruments Registration Law, Okafor v. Soyemi [2001] 2 NWLR (pt. 698) 465; Agboola v. United Bank for Africa Plc [2011] 11 NWLR (pt.1258) 375; Abu v. Kuyabana [2002] 4 NWLR (pt. 758) 599.

Other cases include, Akingbade v. Elemosho (1964)1 All NLR 154; Olowolaramo v. Umechukwu [2003] 2 NWLR (pt. 805) 537; Mojekwu v. Mojekwu [1997] 7 NWLR (pt. 512) 283; Tella v. Usman [1997] 12 168; Ole v. Ekede [1991] 4 NWLR (pt. 187) 569; Tewogbade v. Obadina [1994] 4 NWLR (pt. 338) 326.

Put differently, a document, registrable under the Land Instruments Registration Law, may be admitted in evidence without registration, if it is tendered, not as an instrument affecting land but only to establish evidence of a transaction between the parties, Obienu v. Okeke [2006] 16 NWLR (pt. 1005) 225; Monkom v. Odili [2010] 2 NWLR (pt. 1179) 419; Agwunedu v. Onwumere [1994] 1 NWLR (pt.321) 375; Abu v. Kuyabana [2002] 4 NWLR (pt. 758) 599.

In effect, when a Court is determining whether or not to admit or reject an unregistered registrable instrument, it has to consider the purpose and the use to which it is being put, Ole v. Ekede [1991] 4 NWLR (pt. 187) 569. In the vocabulary of pleadings, the pleader has a duty to show that the document was pleaded as an acknowledgement of payment and not as an instrument of title, Ogunbambi v. Abowab 13 WACA 222; Agwunedu v. Onwumere [1994] 1 NWLR (pt 321] 375; Fakoya v. St. Paul’s Church Shagamu (1966) I All NLR 74; Oni v. Arimoro (1973) NMLR 237; Akingbade v. Elemosho (1964) I All NLR 154.

The explanation is simple. The filing of pleadings is primarily, to settle issues between the parties, Osuji v. Ekeocha (2009) LPELR – 2816(SC); [2009] 16 NWLR (pt.1166) 81; Nwokorobia v. Nwogu and Ors (2009) LPELR -2127 (SC); [2009] 10 NWLR (pt.1150) 553. Thus, if a document is pleaded, it must be for a particular purpose. As such, a document pleaded as transferring interest in land to a party cannot be considered for other purposes not pleaded, Edohoeket v. Inyang [2010] 7 NWLR (pt. 1192) 25; Gbinijie v. Odji [2011]4 NWLR(pt.1236)103; Onwumelu v. Duru [1997] 10 NWLR (pt. 525) 377; Agbodike v. Onyekaba [2001] 10 NWLR (pt. 722) 576; Commissioner for Lands and Housing Kwara State v. Atanda [2007] 2 NWLR (pt. 1018) 360. – Per C. C. Nweze, JSC

ISSUES – CONDUCT OF PARTIES WHEN FORMULATING ISSUES FOR DETERMINATION IN BRIEFS OF ARGUMENT

As a matter of general principle, issues formulated in a brief of argument must be distilled from specific grounds of a notice of appeal, otherwise, they should be deemed at large, and liable to be discountenanced.  – Per C. C. Nweze, JSC

FAIR HEARING – THE ESSENCE OF THE FAIR HEARING PROVISION ON THE CONSTITUTION – PARTIES WHO SHOULD EXPLOIT THE FAIR HEARING CONSTITUTIONAL PROVISION

Indeed, this issue reminds me of the eloquent formulation of this Court in Adebayo v AG, Ogun State  (2008) LPELR – 80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso: I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.

They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking. [Italics supplied for emphasis] – Per C. C. Nweze, JSC

EVALUATION OF EVIDENCE – THE PRIMARY FUNCTION OF THE EVALUATION OF EVIDENCE

It has long been established that the function of the evaluation of evidence is essentially that of the trial Court, Igago v State (1999) LPELR – 1442 (SC) 27; Onuoha V. The State [1998] 5 NWLR (pt. 548) 118. Where the trial Court has unquestionably, evaluated evidence and, justifiably, appraised the facts, it is not the business of an appellate Court to interfere, and to substitute its own views for the view of the trial Court,Woluchem v. Gudi [1981] 5 SC 291; Enang v. Adu [1981] 11-12 SC 25; Abisiv. Ekwealor [1993] 6 NWLR (pt.302) 643; Okolo v. UBN Ltd [1998] 2 NWLR (pt. 539) 618; UBN Plc v. Borini Prono Co. Ltd [1998]4 NWLR (pt. 547) 640.

Accordingly, an Appellant who relies on improper evaluation of evidence to set aside the judgment has the onus to identify or specify the evidence, improperly, evaluated or not evaluated. He has to show, convincingly, that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party, complaining of wrong evaluation. – Per C. C. Nweze, JSC

COURTS – CONDUCT OF APPELLATE COURTS TO FINDINGS OF TRIAL/LOWER COURTS

Where a trial Court has taken advantage of the unique opportunity to hear and observe the witnesses testify and has properly evaluated the evidence before it by weighing same on an imaginary scale and determining where it preponderates, an appellate Court would not usually interfere with the findings made.

Some of the exceptional circumstances that might justify interference would be where the decision is not based on a proper and dispassionate appraisal of the evidence; where the findings are perverse in that the Court took extraneous matters into consideration or failed to take into account relevant matters; where the Court has drawn wrong conclusions from accepted credible evidence; or where the findings are not the result of a proper exercise of judicial discretion. See: Ogundipe Vs Awe & Ors. (1988) 1 NWLR (Pt. 68) 118; Ayeni Vs Adesina (2007) ALL FWLR (Pt. 370) 1451 @ 1457 – 1458; Agbaje Vs Fashola (2008) 6 NWLR (Pt. 1082) 90 @ 153 B – E; 7up Bottling Co. Ltd. Vs Abiola & Sons Ltd. (1995) 3 NWLR (Pt. 383) 257. – Per K. M. O. Kekere-Ekun, JSC

LOCUS IN QUO – MEANING OF LOCUS IN QUO – WHETHER A VISIT TO LOCUS IN QUO IS ALWAYS NECESSARY

The phrase, locus in quo, comes from the Latin language meaning “the place in which”. In law, locus in quo refers to the place where the cause of action arose or it may be used as the venue or place mentioned.

It is settled law that a visit to the locus in quo may not be necessary where the disputed area is clear, as a trial Court is to reach its decision, not on the impressions from the locus in quo, but upon its impressions from the evidence before the Court, unless there is a special reason or a specific cause for which an inspection has become necessary or desirable – see Eboade & Anor V. Atomesin & Anor (1997) 5 NWLR (Pt. 506) 590, and Ukaegbu & Ors V. Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 239 SC, where this Court, per Ogbuagu, JSC, pieced the principles together thus:

A trial Judge, who has a clear doubt that he felt arose from the evidence, either on the invitation of one of the Parties or by both Parties or suo motu, can visit a land in dispute in order to confirm what is already on the record with the actual physical inspection in keeping with the adage that “seeing is believing”. He will then “substitute the eye for the ear”. See Briggs v. Briggs  (1992) 3 NWLR (Pt. 228) 128. But in Olusanmi v. Oshasona (1992) 6 SCNJ 282, Ogundare, JSC, held that the purpose of an inspection, is not to substitute “the eye for the ear” but rather to clear any ambiguity that may arise in the evidence or to resolve any conflict in the evidence as to physical facts – – – it is not mandatory, even if the visit be at the request of both Parties, it depends on the state of the evidence – – Where the truth of the evidence about the existence or non-existence of the structure of an aspect of a particular place or immovable thing, cannot be properly resolved by the testimony of the Witnesses or even from a plan or sketch, a trial Judge will be acting in the interest of justice to have a view of the place or thing. – Per A. A. Augie, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Land Instruments Registration Law
3. Evidence Act, 2011

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