Legalpedia Citation: (2024-02) Legalpedia 57625 (CA)

In the Court of Appeal

Holden At Makurdi

Thu Feb 15, 2024

Suit Number: CA/MK/24/2015

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

TERYANGE KWAN

APPELLANTS

BAYO AJAI

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The claimant, who is herein the appellant, at the lower Court, had claimed a declaration that the parcel of land described in paragraph 13 above is Kwan family land and that the purported sale of the family land to the Defendant by Felix Ade without the consent of the Plaintiff and the family head is null and void.

The defendant filed his statement of defence, which incorporated his counter-claim wherein he claimed that he is entitled to the Statutory Right of Occupancy over that piece of land situated at Achusa village, Makurdi, measuring 30 meters x 30 meters.

In his judgment, the learned trial Judge dismissed the action by the claimant.

Aggrieved by the decision, the Appellant made the instant appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the trial Court was right in holding that the land purportedly sold to one Mr. Samuel Ukpevo by Felix Ade in 2003 for the sum of N80,000.00 in Exhibit 5 is the same as the land in dispute?
2. Whether by the pleadings and evidence before the trial Court Exhibit (sic) 2 and 6 qualify as evidence of possession of the disputed land?
3. Whether the trial Judge was right in admitting and relying on Exhibits 2, 4, and 5 in his Judgment?
4. Whether the trial Judge was right in holding that the Plaintiff has not proved that the land in dispute is Kwan family Land on a balance of probability to entitle him to the reliefs sought in paragraph 14 (a) of the statement of claim?
5. Whether or not the trial Court was right in granting title to the disputed land to the defendant/counter-claimant?
6. Whether the trial Court properly evaluated the evidence before it?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – CONDUCT OF PARTIES IN FORMULATING ISSUES FOR DETERMINATION

Issues that arise for determination in an appeal must of necessity be tied to specific grounds of the Notice and Grounds of Appeal so as to save the Court from speculation as to which ground of the notice of appeal threw up the given issues. – Per C. I. Jombo-Ofo, JCA

UNREGISTERED REGISTRABLE INSTRUMENT – THE EFFECT OF TAKING POSESSION OF LAND BY VIRTUE OF AN UNREGISTERED REGISTRABLE INSTRUMENT

In the NSIEGE case (supra), the Supreme Court held at page 1799 that: “When a purchaser of land who has paid and taken possession of the land by virtue of a registrable instrument which has not been registered, he has thereby acquired an equitable interest which is as good as a legal estate” (See page 89 of the record of appeal).

Per C. I. Jombo-Ofo, JCA

DOCUMENTS – WHERE DOCUMENTS ARE TENDERED IN THEIR SECONDARY FORM IN COMPLAINCE WITH THE EVIDENCE ACT

Exhibits 4 and 5, documents titled Sales Agreement dated 06/12/2006 and 05/09/2003 respectively, were rightly admitted in evidence as they shared the same circumstances of loss with Exhibit 2. Having laid a proper foundation of the loss or misplacement of their original copies, Exhibits 4 and 5 were rightly admitted in evidence. Exhibits 2, 4, and 5, tendered in their secondary form, were compliant with the provisions of Section 89 of the Evidence Act, 2011, and thus rightly admitted in evidence. See Fasina vs. Ogunkayode (2005) All FWLR Pt. 283, pg. 116; and Jacob vs. A.G., Akwa Ibom State (2002) FWLR Pt. 86, pg. 578.

Per C. I. Jombo-Ofo, JCA

DOCUMENT- ADMISSIBILITY OF A STATEMENT CONTAINED IN A DOCUMENT WHERE THE MAKER OF THE DOCUMENT IS NOT CALLED AS A WITNESS

One other point raised by the learned counsel for the appellant regarding the inadmissibility of Exhibit 5 pursuant to Section 83(1)(b) of the Evidence Act, 2011 is that the photocopy of the document, Exhibit (5), was just tendered in evidence without calling any of the parties that signed the same in line with Section 83(4) of the Evidence Act, supra.

Indeed, the combined reading of subsection (1), subsection (b), and subsection (5) of Section 83 of the Evidence Act, 2011 sums up to the fact that for the purpose of admissibility of the statement contained in a document, the maker of the content or statement shall be called as a witness, unless the person is dead or unfit by reason of bodily or mental condition to attend as a witness, or is overseas and it is not reasonably practical to secure his attendance. In the instant case, while it is in evidence by the respondent that Felix Kwan Ade (the vendor) in Exhibit 5 is dead and therefore cannot be produced in Court to speak to the exhibit, nothing was said of the whereabouts of Samuel Ukpevo (the vendee), or the reason why he was not in Court as a witness. Be that as it may, there is no doubt that both Felix Ade and Samuel Ukpevo had personal knowledge of the content of Exhibit 5 as they were the makers of the same. By the provision of the entire Section 83 of the Evidence Act supra, Exhibit 5, notwithstanding the unexplained whereabouts or absence of Samuel Ukpevo, is all the same admissible in Evidence. Exhibit 5 is relevant to the case and the same was duly pleaded by the respondent, so it falls short of an inadmissible hearsay. The contention by the appellant that it be rejected and expunged from the record of the Court as an inadmissible hearsay is neither here nor there. Exhibit 5 therefore remains part and parcel of the relevant and reliable evidence in the record of the Court. See Odds Limited vs. Akatugba (2001) FWLR Pt. 76, pg. 709; and Oloruntoki vs. Johnson (1990) 6 NWLR Pt. 158, pg. 600.

Per C. I. Jombo-Ofo, JCA

EQUITY – WHETHER DELAY DEFEATS EQUITY

It took the appellant well over 6 years to come to the realisation that their purported family land which was under his management and administration had been sold off to a 3rd party. It is trite in law that delay defeats equity. – Per C. I. Jombo-Ofo, JCA

DECLARATORY RELIEFS – DUTY OF A PARTY SEEKING DECLARATORY RELIEFS

On the strength of his own case, a declaratory relief will not be granted, even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. It has been held that the rationale for declaratory reliefs calls for the exercise of the Court’s discretionary powers in favor of the claimant. He must therefore place sufficient material before the Court to enable it to exercise such discretion in his favor. See Williams vs. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145, 152; Ogolo vs. Ogolo (2003) 18 NWLR Pt. 852, pg. 494; and Okoye vs. Nwankwo (supra)…… – Per C. I. Jombo-Ofo, JCA

DOCUMENTS – THE CONDUCT OF COURTS TO DOCUMENTARY EVIDENCE

It is trite law that documents speak for themselves and no party is permitted to ascribe any contrary interpretation to it. See Shinkafi vs. Al-Hassan (2016) LPELR-45427(CA), pgs. 17 – 18, paras. D – E; and UBN vs. Nwaokolo (1995) 6 NWLR Pt. 400, pg. 127. – Per C. I. Jombo-Ofo, JCA

FACTS AGREED UPON – WHERE PARTIES AGREE ON FACTS

It is trite that where parties are agreeable on a fact, the said fact will not call for any further proof and so, goes to no issue. – Per C. I. Jombo-Ofo, JCA

IDENTITY OF LAND – WHERE A CLAIMANT DOES NOT PUT THE IDENTITY OF A LAND IN DISPUTE – WHERE IDENTITY OF LAND IS PUT IN ISSUE WITHOUT THE NEEDED EVIDENCE IN SUPPORT

In law, the issue of the identity of the land in dispute is a function of pleadings. Usually, it is a Defendant that, by his pleadings, puts the identity of the land in dispute in issue. Thus, where a Defendant does not join any issue with a Claimant on the land in dispute and also where the land in dispute is very well known to the parties, then the issue of identity of the land in dispute does not arise. See Nyomi & Anor v. Njoku & Anor (2021) LPELR-55558 (CA).

It follows, therefore, despite the tendency of parties to call land in dispute by different names or descriptions, the Courts have always seen through such circumstances to determine the real issues in controversy between the parties, which is between the Appellants on one hand and the Respondent on the other hand, who is the person entitled to be declared the owner of the land in dispute. See Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360. See also Nyomi & Anor v. Njoku & Anor (2021) LEPLR – 55558 (CA) Aremu v. Adeosun (2007) 16 NWLR (Pt…..) 244, Gabdo v. Usman (2015) LPELR – 25678 (CA) Adenle v. Olode (2002) 9 – 10 SC 124, Kwewum v. Eyi (2015) LPELR – 25633 (CA).

My lords, interestingly and I thought I should mention this, the identity of land in dispute is not put in issue merely in the address of counsel, but rather on the averments in the pleadings of the parties and subsequent evidence led thereon. In law, even when the identity of the land is put in issue but without the needed evidence in support and in proof thereof, it would be deemed abandoned since in law, facts pleaded on which no evidence was led are deemed abandoned. See Kwewum v. Eyi (2015) LPELR – 25633(CA), See also Nyomi & Anor v. Njoku &Anor (2021) LPELR – 55558(CA). – Per B. A. Georgewill, JCA

PUBLIC DOCUMENT – MEANING OF A PUBLIC DOCUMENT – WHETHER PUBLIC DOCUMENTS MUST ALWAYS BE CERTIFIED TO BE ADMISSIBLE

Now, in respect of the question of the admissibility or otherwise of Exhibit 2, it is indisputable that it is a public document within the meaning of the word “public document.” It is clearly the act of a public official, and the mere fact that it was a receipt issued to a private person by the Benue State Government does not convert or render it to be a private document. See Section 102 of the Evidence Act, 2011, which provides as follows:

“The following documents are public documents- Documents forming the official acts or records of the official acts of the sovereign authority; of official bodies and tribunals of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere, public records kept in Nigeria of private documents.”

See also Section 104(1) of the Evidence Act, 2011, which provides as follows:

“Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.”

However, there is no law that prohibits the tendering of an original document, such as Exhibit 2, be it a public or private document, by the person to whom it was issued and is in possession thereof. This is the reason why in law, the originals of even a public document in the hands of a private person can be tendered in evidence without the need for any certification, since a certified true copy of a public document is only but a secondary evidence. In law, the original true copy of a public document produced, be it of a private or public document, is the primary evidence, which in all cases, subject to relevancy and pleadings and other requirements of law, is ordinarily admissible in evidence. See Andrew v. Oshoakpemhe & Ors (2021) LPELR – 53228 (CA). – Per B. A. Georgewill, JCA

EVALUATION OF EVIDENCE – WHERE THE TRIAL COURT DISCHARGES ITS DUTY OF EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE – DUTY OF THE APPELLATE COURT

On the whole, therefore, in my finding, and I firmly hold so, the Lower Court carried out its duty of evaluation impeccably by weighing both the pleadings and evidence of the parties on the imaginary scale to see where the evidence preponderates in line with the principles of law as enunciated in Mogaji v. Odofin (1978) 4 SC 94. It found, and quite rightly too, that the Appellants’ claim lacked merit and was consequently rightly dismissed.

My lords, once a trial Court discharges its duty of evaluation and ascription of probative value to the evidence placed before it, as was done by the lower Court in the judgment appealed against by the Appellant, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere, once the conclusion reached is correct, even if the reason turns out to be wrong. See Alhaji Ndayoko & Ors v. Alhaji Dantoro & Ors (2004) NWLR (Pt. 889) 187 @ p. 198, where Edozie JSC pronounced with finality on this vexed issue:

“An appellate Court is only concerned with whether the judgment appealed against is right or wrong, not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.”

See also Nyomi & Anor v. Njoku & Anor (2021) LPELR – 55558 (CA); Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya v. Uchenda 18 WACA 46; Oni v. Johnson (2015) LPELR – 24545 (CA); Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66. – Per B. A. Georgewill, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act, 2011
2. Land Registration Law (Cap 88) Laws of Benue State, 2004

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