CORAM

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PARTIES

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ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD

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MR. AUGUSTINE TERU & ANOR

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

The Plaintiff/Appellant commenced this action against the Defendant/Respondent in the High Court; sitting in Yola. The Plaintiff sought declaratory, injunctive reliefs and damages. Among the reliefs sought by the Plaintiff was a declaration that the Plaintiff is entitled to all that piece of land lying and situate along Jimeta-Numan Road adjacent to the uncompleted new motor park and market covered by a Gongola (now Adamawa) State Certificate of Occupancy number GS/8976 measuring 9.928. 75 sqm, an order of Court directing the Defendants to apply to the Adamawa State Ministry of land and survey, finance and effect the re-establishment of beacons removed by them on the Plaintiff’s land, the sum of Six Hundred Thousand Naira(600,000) and Twenty Million naira being special and general damages respectively. At the conclusion of the trial, the court dismissed the Plaintiff’s case. Peeved by the trial court’s decision, the Plaintiff/ Appellant have filed the instant appeal before this court contending that the non-inclusion of an illiterate Jurat in the exhibit does not make it inadmissible or capable of been expunged.

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HELD

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Appeal Allowed In Part

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ISSUES

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Whether the trial Court was right when it held that the absence of a Jurat on Exhibit L1 made the document inadmissible”. Whether the trial Court was right when it discountenanced the evidence of the Plaintiff on Forest reserve elicited under cross examination on the ground that it was not pleaded Whether the trial Court was right when after ruling on the admissibility of Exhibits K, K1, K2, K3, K4 and K5 turned around to hold in its Judgment that the documents were inadmissible Whether in the context of this suit the trial Court was right when it held that since there were no replies to Exhibits R an S which were letters, the recipients were presumed to have no objection to the contents of same Whether the trial Court was right when it placed reliance on Section 167 (d) of the Evidence Act, 2011 to hold that having failed to call the grantor or its official to testify, it could be concluded that the evidence of the grantor would be unfavourable to Exhibit E tendered Whether the trial Court was right in dismissing the Plaintiff’s suit

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RATIONES DECIDENDI

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ILLITERATES PROTECTION ACT – OBJECT AND IMPORT OF SECTION 3 OF THE ILLITERATES PROTECTION ACT

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‘For clarity purposes Section 3 of the Illiterates Protection Act provides:-
“A person who writes a letter or document at the request, on behalf, or in the name of an illiterate person shall also write on the letter or other document his own name as the writer thereof and his address, and his so doing shall be equivalent to a statement that:
a. That he was instructed to write the letter or document by the person for whom it purports to have been written and that the letter or document fully and correctly represents his instructions, and
b. If the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate person and that the signature or mark was made by that illiterate person”.
It must not be forgotten that the object of the Illiterate Protection Act is to safeguard illiterates from fraud and exploitation. It is to prevent the writer of a document, which creates legal rights from enforcing it unless he has strictly complied with the Law. See Itauma v Akpe-Ime (2000) 12 NWLR Part 680 Page 156 at 175 Para E-F per Ogwuegbu JSC; Anyabunsi v Ugwunze (1995) 6 NWLR Part 401 Page 255 at 274 Para F per Onu JSC..
As also held in Fatunbi v Olanloye (2004) 12 NWLR Part 887 Page 229 SC at 250-251 Para G-A per Pats-Acholonu JSC, the object of Section 3 of the Act is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case.
As also held by His Lordship, Pats-Acholonu JSC in the case above, if the illiterate does not complain of non-compliance, an outsider cannot. Indeed the same Court held, in the case of John v State (2017) 16 NWLR Part 1591 Page 304 at 336 Para C-E per Kekere-Ekun JSC, that absence of an illiterate jurat does not make a document null and void. The absence may only affect the weight. See also Wilson v Oshin (2000) 9 NWLR Part 673 Page 442 at 466-467 Para G-A per Karibi-Whyte JSC”.

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PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS

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“The law is settled that parties are bound by their pleadings and evidence led on unpleaded matters goes to no issue. In the same way un pleaded facts elicited in cross-examination go to no issue. See Kamalu 3 Ors. (2006) AFWLR (Pt. 297) 978 at 995 Paras. B-E Ratio 1”.

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PLEADINGS – WHETHER EVIDENCE ELICITED BY A PARTY DURING CROSS-EXAMINATION FROM THE OTHER PARTY’S WITNESS CONTRARY TO THE FACTS PLEADED CAN BE RELIED UPON

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“The true position is evidence extracted or elicited by a party during cross examination from the other party’s witness, which is contrary to the facts pleaded by the said party cannot be relied upon by the party in question, unless the pleadings are amended. See the case of Anioke v. Anioke (2013) AFWLR (Pt. 658) 658 at 995 Ratio 4.The lower Court was therefore on a sound footing when it held at page 298 of the printed record thus:-
“I have examined the pleadings of both the Plaintiff and the 2nd Defendant and there is nowhere the issue of forest reserve is mentioned. It is only extracted in the course of cross-examination by learned Counsel to the Plaintiff. I therefore discountenance with the evidence so elicited, all submissions and statutory provisions cited thereto”.
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DOCUMENT – WHETHER A TRIAL COURT HAS POWERS TO EXPUNGE ANY DOCUMENT EARLIER ADMITTED IN EVIDENCE

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“The trial Court has the competence to expunge any document earlier admitted in evidence where the document does not carry any probative value by virtue of the Evidence Act. In the instant case, the photographs were tendered without laying proper foundation by tendering their negatives. In the case of Justus Nwaizoku & 5 Ors. v. Francis Onowordi & 2 Ors. (Supra) it was held that:
“A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment. The trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier does not carry any probative value of the evidence Act in the light of the live issues before the court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision”.
The lower Court was therefore on a sound footing when it held at Page 294 of the transmitted record that:
“The proponent of the photograph must satisfy the Court that the photograph is an accurate portrayal of the scene or object captured…… by meeting the requirements of Section 84 (2) of the Evidence Act”.

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PROOF OF TITLE TO LAND – TITLE TO LAND MAY BE PROVED BY PRODUCTION OF DOCUMENT OF TITLE

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“The law is settled that title to land may be proved by Production of document of title. See Odunze v. Nwosu (2007) AFWLR (Pt. 379) 1295 at 1303 Paras. B-D Ratio 9; Arum v. Nwobodo (2013 AFWLR (Pt. 688) 870 at 893 Paras. E-G Ratio 8 and Atundaolu v. Registered Trustees of O.I.M.C.S.C. Nig. And Overseas (2011) AFWLR (Pt. 597) 750 at 765 Paras. E-H Ratio 4”.

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PROOF OF TITLE TO LAND- WHETHER A PLAINTIFF MUST ESTABLISH ALL THE WAYS OF PROVING LAND TO SUCCEED IN AN ACTION FOR TITLE TO LAND

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“The Apex Court and indeed this Court have set out the five ways through which a party can prove title to land – Awodi v. Ajagbe (2009) AFWLR (Pt. 4540 1413 at 1438-9 Ratio 1. Among the five ways is the production of documents of title. In the case of Mrs. Mulikatu Erinfolami v. Pius Oso (2013) AFWLR (Pt. 673) 1991 at 1999 Paras. A-D Ratio 2 this Court held that:-
“A Plaintiff need not prove all the five ways to succeed in an action for title to land. He can succeed if he proves even one of the ways”.
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BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROVING THE IDENTITY AND BOUNDARIES OF LAND

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“In Adda v. Ubandawaki (2015) AFWLR (Pt. 775) 200 at 204 Ratio 7 it was held that:-
“The burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan, showing clearly the area which his claim relates…”
See also Bankole v. Adeyeye (2014) AFWLR (Pt. 721) 1570 at 1573 Paras. C-E Ratio 4.

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WRONGLY ADMITTED EVIDENCE – DUTY OF COURT TO EXPUNGE WRONGLY ADMITTED EVIDENCE

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“It is the law that evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. Alternatively, any evidence legally inadmissible admitted by the trial court must be disregarded while writing judgment even if the evidence was admitted by consent. See the following decisions of the Supreme Court; Olayinka vs State (2007) 9 NWLR (Pt. 1040)561, Agbi vs. Ogbeh(2006) 11 NWLR(Pt. 90)65 and the decision of this court in Hppolite Vs, Agharevba (1998)11 NWLR(Pt, 575)598.”

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ADMISSIBILITY OF SECONDARY EVIDENCE -CONDITION FOR THE ADMISSIBILITY OF SECONDARY EVIDENCE

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“Photographs are secondary evidence. They become admissible only when the negatives are also tendered. However, in this age of digital photography where negatives are stored electronically, it becomes necessary for the photographer to be called to testify. See Musa Vs, State (2019)1 SCNJ 543 at 567.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Evidence Act, 2011|

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