LEGALPEDIA ELECTRONIC CITATION: LER [2019] CA/L/854/2008

 AREAS OF LAW:

Administration Of Estate, Appeal, Court, Law Of Evidence, Practice And Procedure

SUMMARY OF FACTS

In 2001, the Appellant purchased a property known as No. 47 Bode Thomas Street, Surulere from the 4^th Respondent based on Exhibit A, which is an affidavit showing that the property which was originally that of Late Henry Olatunde Kukoyi, being the  property of his estate was shared to the 4^th Respondent. The 1^st, 2^nd, and 4^th Respondents are the children of the deceased while the 3^rd Respondent is the nephew of the deceased father of other Respondents. The surviving administrators of the estate are the 3^rd and 4^th Respondents. It was the 1^st -3^rd Respondents case against the Appellant and the 4^th Respondent at the Lagos State High Court, Ikeja Division that the 4^th Respondent had no right or power to sell the property without the consent of the other administrators or beneficiaries of the estate among other reliefs. The Appellant filed a counter claim against the 1^st – 3^rd Respondents and contended that based on exhibit A, the 1^st and 3^rd Respondents knew about the sale, therefore same is valid. The trial court declared Exhibits A & C inadmissible and that the property has not been alienated as provided by the Administration of Estates Law. It also dismissed the counter claim hence, an appeal by the Appellant to this court that the lower court was wrong not to have evaluated the evidence of the parties before it before arriving at its decision  and that the 1^st and 3^rd Respondents had by Exhibit A consented to the sharing of the subject matter of the case to the 4^th Respondent hence he was in order to have sold the property in question.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether the lower court evaluated the evidence before coming to the conclusion in the judgment.
• Whether the lower court was right in holding that Exhibits A and C are inadmissible.
• Whether the lower court in the circumstance of the case was right in granting the 1st -3rd Respondents claim in the lower court and dismissed the counter claim of the Appellant.

RATIONES

COURT – DUTY OF A COURT IN ENSURING JUSTICE IS DONE     

“It is not in dispute that the duty of a court in ensuring justice is done is to evaluate the evidence before it before coming to a finding based on the evaluated facts. See; Agbabiaka Vs. Saibu & Ors (1998)7 SC (PT. 2) 167. PER E.TOBI, J.C.A

EVALUATION OF EVIDENCE BY A TRIAL COURT – GUIDING PROCEDURE IN THE EVALUATION OF EVIDENCE BY A TRIAL COURT

“It is a trite legal principle that the duty of a court is to evaluate the evidence before it and then arrived at a finding arising from the evaluated evidence. Failure to do this, can amount to a miscarriage of justice.  In Atuyeye & Ors vs. Ashamu (1987) 1 SC 333, the apex court per Oputa, JSC (of blessed memory) held:

“The trial Court has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which decision must inevitably be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty it commits an error of law. The party aggrieved can then appeal on the ground of error in law giving as his particulars of error the failure to properly assess or evaluate or appraise the evidence led by and on his behalf.”

Similarly in Tinubu vs. Khalil & Dibbo Transport Ltd (2000) 11 NWLR ( pt 677) 171, Ejiwunmi, JSC  held:

“It is settled that the cardinal duty of a trial Court was to make such findings as deemed appropriate upon facts led at a trial. Where a trial Court failed to discharge that duty, it could be said that there had been a miscarriage of justice. This is because where the trial Court has failed to discharge this primary duty; it becomes difficult for an appellate Court to consider properly the merits of an appeal in the absence of the findings of the trial Court. This is more so where the evidence would require for consideration of the credibility of witnesses who gave evidence at the trial.”

The apex court recently in Arije vs Arije & Anor (2018) LPELR-44193 (SC), Kekere- Ekun, JSC at pages 20-21 drove home this point in these words:

“It is well settled that the evaluation of evidence is primarily the exclusive preserve of the trial Court, which has the unique opportunity of seeing and hearing the witnesses testify and of observing their demeanour. However, both the trial Judge and the appellate Courts have equal right to evaluate documentary evidence. Where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just Conclusion. See: Gonzee Nig. Ltd. vs. Nigerian Educational Research and Devt. Council & Ors (2005) 13 NWLR (Pt. 943) 634; Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745; Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308; Rev. King vs. The State (2016) LPELR-40046 (SC) 1 @ 49 A D.”

• PER E.TOBI, J.C.A

EVALUATION OF EVIDENCE – INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE BY A TRIAL COURT

“If, however the appellate court finds that the lower court ought to evaluate the evidence which it failed to evaluate, the appellate court will treat that as a miscarriage of justice and come to the conclusion that the finding is perverse. In such a situation, the appellate court can interfere with the finding of fact. See; Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360; Kamalu & Ors vs. Umunna & Ors (1997) 5 NWLR (Pt.505) 321”. PER E.TOBI, J.C.A

ADMINISTRATOR OF AN ESTATE – WHETHER AN ADMINISTRATOR HAS RIGHT OF OWNERSHIP OVER THE PROPERTY OF THE ESTATE OF A DECEASED PERSON

“Indeed, I make bold to say that not even the Administrators can sell the estate they are administering. In Ibrahim vs. Osunde & Ors (2009) LPELR- 1411 (SC) the apex court at pages 28-29 held:

“It is wrong, in law, for an administrator of an estate or anybody claiming through him, to assimilate that property to his own, Equity will not even permit that under any guise. To say the least, it is gross abuse of office. Administrators or executors are trustees of the property placed in their care, so to say, on trust to the beneficiaries. A heavy duty is placed on those in whom trust and confidence are reposed to show the righteousness of their transactions with the property entrusted to them. No ownership known to law can ever be conferred on an administrator in respect of the property, subject-matter of that administration. Such an administrator, the like of S. E. Lawal, cannot have possession of such a property which will ever have any legal blessings. So S. E. Lawal cannot in the least, give out the possession of the property which never belonged to him, in law. The saying is that “No one gives who possess not.” The Maxim is “NEMO DAT QOUD NON HABET” Indeed, he gives nothing who has nothing, again the Maxim is NEMO DAT QOUD NON HABET.”

• PER E.TOBI, J.C.A

REGISTRABLE INSTRUMENTS – WHETHER AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE

“The earlier position of the law on admissibility of instruments under the Law in referenced, is that, such a document not registered is not admissible.  In Dan’Asabe & Anor vs. Babale (2013) LPELR-22360 (CA) Mbaba, JCA at pages 46-50 held:

“The law is trite, as argued by the Appellants, that by Sections 2 and 15 of the Land Registration Law, Cap 77, Laws of Kano State, every document purporting to transfer title to land or affecting land transaction, shall be registered to become a registered instrument, to qualify to be pleaded and admitted in evidence for the purpose of establishing title to land. And where an unregistered registrable instrument is inadvertently tendered in evidence, the same should be ignored, as it is bereft of any probative value. See the case of Lekwauwa vs. Ukaegbe (2009) ALL FWLR (Pt. 469) 549; Uzoegwu vs. Ifekandu (2001) FWLR (Pt. 72)1950; Savannah Bank Plc vs. Ibrahim (2000) NWLR (Pt. 662) 585…… In Odumade vs. Ogunaike (2011) ALL FWLR (Pt. 566) 529 at 547 it was held:

“An unregistered instrument is not admissible to prove title to land, It is however admissible as a receipt or an acknowledgement of the payment of money in respect of the land. Where, coupled with delivery of possession, it gives rise to an equitable interest which is capable of being converted into a Legal Estate by specific performance.”

The Supreme Court had made this point very clear in Lanlehin vs. James (1985) 4 SC (Pt.2) 194 per Obaseki, JSC thus:

“An instrument is in admissible in evidence unless registered (see: in section 15 of the Land Registration Law Cap 64 Laws of Lagos State 1973). In Pleading of such unregistered instrument was likewise prohibited by that section. The section 15, of the Land Instruments Registration Law Cap 64 reads:

“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered; Provided that a memorandum given in respect of an equitable mortgage affecting land in the colony or the southern provinces executed before the 1st day of July, 1944, and not registered under this ordinance may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered; Provided further that this section shall not apply in the case of any document which is exempted from registration under this law by virtue of Section 86 of the Registration of Titles Law or the Registered Lands Law and which is registered under either or those laws.”

The document however relied upon must be pleaded and used as the evidence of title. In Okoye vs. Dumez (Nig.) Ltd & Anor (1985) 1 NWLR (Pt.4) 783, the apex court per Karibi- whyte held:

“There is a long and impressive judicial authority for the proposition that the non-registration of a registrable instrument renders such instrument inadmissible as evidence in a litigation where such instrument is relied upon as evidence of title…”

• PER E.TOBI, J.C.A

“INSTRUMENT” – DEFINITION OF”INSTRUMENT”- SECTION 2 OF THE LAND INSTRUMENT REGISTRATION LAW

Section 2 of the Law define what documents will amount to instrument under the law. In this respect, the case of Pastor J. Akinlolu Akinduro vs. Alhaji Idris Alaya NSCQR Vol. 30 2007 page 601 where the apex court per Aderemi, JSC at page 691 held:

“Under Section 2 of the Law the word “INSTRUMENT” is defined to mean a document affecting land in the state whereby one party usually called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in the state. Going by Section 15 aforesaid, an unregistered document affecting land must not be pleaded and neither is it admissible in evidence.”

See also; Agba vs. Edibi (2015) LPELR-25853 (CA); Obidina & Ors vs. Fasoyinro (2017) LPELR-42182 (CA). PER E.TOBI, J.C.A

REGISTRABLE INSTRUMENTS – CURRENT POSITION OF THE LAW ON WHETHER A REGISTRABLE INSTRUMENT IS INADMISSIBLE ON GROUNDS OF NON REGISTRATION OF THE DOCUMENT

“What is then the legal effect of failure to register it; does it make it inadmissible in law? From the cases referred to above, it would appear that the document that is Exhibit A is inadmissible. Is that really the current position of the law? I do not think so. In Mr. Moses Benjamin & Ors vs. Mr. Adokiye Kalio & Anor (2018) 15 NWLR (pt 1641) 38 the Supreme Court held that admissibility is governed by the Evidence Act which is a Federal Legislation and therefore any document or evidence admissible under the Evidence Act cannot be made inadmissible under and state law. The Supreme Court in that case was dealing with the provision of Sections 20 & 37 of the Rivers State Land Instrument (Preparation and Registration) Law cap 74, 1999 which is similar to Sections 2 & 15 of the Lagos State Land Instrument Registration Law, Cap L.58, 2003. The full complement of the Supreme Court of seven Justices held that a land document, which is an instrument, will not be inadmissible on grounds that it is not registered. The Supreme in coming to that conclusion made reference to its earlier cases of Ogbimi vs. Niger Construction Ltd (2006) All FWLR (pt 317) 390 @ 400; Ojugbele vs. Olasoji (1982) 4 SC 31; Edokpolo @ Co. Ltd vs. Ohenhen (1994) 7 NWLR (Pt. 358) 511. The apex court per Eko, JSC at pages 51-52 held:

“It is obvious to me, upon painstaking and dispassionate perusal of section 20 of the Law, Cap. 74 of Rivers State that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical that no land instrument, mandatorily registerable which is not so registered “shall not be pleaded or given in evidence in any court as affecting any land”. This clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 20of the Law Cap. 74 of Rivers State has therefore rendered inadmissible exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act. Because, in my firm view, exhibit L is a piece of evidence please-able and admissible in evidence by virtue of the Evidence Act read together with item 23 of the Exclusive Legislative List and section 4(3) & (5) of 1999 Constitution as amended (and the provisions in pari material with section 4 (3) and (5) of the 1979 Constitution), it cannot accordingly, be rendered unpleasable and inadmissible in evidence in any proceedings before any court of law by and law enacted by the State House of Assembly, as the Rivers Sate House of Assembly had purportedly done by their enactment of Section 20 of the law, Cap. 74.

In my firm view, the argument of the appellant, that Section 20 of the Land Instruments (Preparation and Registration) Law, Cap 74 of the Laws of Rivers State, has rendered exhibit L, a Land Instrument, un-pleasable and inadmissible in the proceedings at the trial court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law, admissibility of exhibit I, is governed by Evidence Act: not the Rivers State Land Instrument (Preparation and Registration) Law, Cap 74. In my judgment: a piece of evidence pleadable and admissible. In evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by a State House of Assembly under the prevailing constitutional dispensation. The learned trial Judge (Mary Peter-Odili, J – as she then was) was therefore right when she stated at page 141 of the records that exhibit L was “properly pleaded – and cannot therefore be said to be inadmissible”.

From this latest decision of the Supreme Court, the law has changed, as an instrument of land under the Land Instrument Registration Law cannot be inadmissible only on grounds of the non-registration of that document. Under the Evidence Act, all relevant documents are admissible. PER E.TOBI, J.C.A

EVIDENCE – WHETHER THE RELEVANCE OF AND WEIGHT TO BE ATTACHED TO EVIDENCE ARE SIMILAR

“The point however must be made that relevance is different from weight to be attached. Relevance and weight are different things in consideration and consequences. See; Buhari vs. INEC & Ors (2008)12, SC (Pt. 1) 1; Kayili vs. Yilbuk & Ors (2015) LPELR – 24323 (SC)”.PER E.TOBI, J.C.A

EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE – PRIMARY DUTY OF THE TRIAL COURT IN RESPECT OF

“The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial court. Where the trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of an appellate court to substitute its own views of the trial court. See Onwuka Vs Ediala (1989) 1 NWLR (PT 96) 182, Woluchem Vs Gudi (1981) 5 SC 291 and Nguma Vs A-G Imo State (2014) LPELR (22252) 1 at 18-19”. PER U. A. OGAKWU, J.C.A

EVALUATION OF EVIDENCE – INSTANCE WHEN AN APPELLATE COURT CAN RE-EVALUATE EVIDENCE

“Where the lower court abdicates this primary duty of evaluating the evidence, then the appellate court will be competent to re-evaluate the evidence, in so far as the credibility of the witnesses is not in issue; since the appellate court does not have the opportunity of having seen the witnesses testify. See Fagbenro Vs Arobadi (2006) 7 NWLR (PT 978) 172, Royal Ade Nig Ltd Vs National Oil And Chemical Marketing Co Plc (2004) 8 NWLR (PT 874) 206, Ezechukwu Vs Onwuka (2016) LPELR (26055) 1 at 12-13 and Iwuoha Vs Nipost (2003) 8 NWLR (PT 822) 308 at 343-344”. PER U. A. OGAKWU, JCA

STATUTES REFERRED TO:

Evidence Act

Land Instrument Registration Law Cap L.58, Laws of Lagos State, 2003

Rivers State Land Instrument (Preparation and Registration) Law cap 74, 1999