B.C. Ikechokwu & Ors. V. Dr. L. O. Olisaka (2003)

LawGlobal-Hub Lead Judgment Report

S.A. OLAGUNJU, J.C.A.

The appeal is from the Ruling of Emekwue, J., on admissibility of a document which was rejected by the learned trial judge on the ground other than the one raised by the counsel opposing the admission of the document giving rise, primarily, to the propriety of a court raising an issue suo motu and basing its decision on it without giving the parties the opportunity to address it on the point. The material facts from which the appeal arose can be summarized as hereunder.

In an action for declaration of title to land, perpetual injunction and damages the plaintiff, the respondent herein, in paragraph 7 of his amended statement of claim pleaded a Deed of Lease, he entered with the family of the Defendants which is repudiated by the Defendants in paragraph 8 of their amended statement of defence. At the trial, the plaintiff who testified as 1PW, did not produce the document during his examination-in-chief and during cross-examination of the witness learned counsel for the defendants sought to tender the document whereupon Learned Senior Advocate for the plaintiff objected to the admissibility of the document on the ground that the document is a photocopy and is neither a primary nor secondary evidence contending that under section 96 of the evidence Act documents must be proved by primary evidence.

In his Ruling, the learned trial judge expressed agreement with the submission of learned counsel for the defendants that the document sought to be tendered being secondary evidence of the original by virtue of section 95(b) of the Evidence Act its admissibility can be considered under section 97 of the Evidence Act, 1990. But he, nonetheless, sustained the objection to admissibility of the document on the ground that the document being clearly an instrument which must be registered under the Lands Instruments Registration Law, Cap. 72 Laws of Eastern Nigeria, applicable in Anambra State and not having been registered as enjoined by the law it cannot under S.15 of the said Law be pleaded or given in evidence in any court as affecting any land”. The document was therefore, rejected by the court as inadmissible.

Dissatisfied with the Ruling the defendants hereinafter called ‘the appellants, formulated two issues for determination from the two grounds of appeal filed with their Notice of Appeal. The two issues read:
“a. Whether the Learned Trial Court was right in basing its decision/ruling on an issue not canvassed before it and in respect of which the parties were not given the opportunity to further address it on the matter.

b. Was the Learned trial judge right in holding that an instrument must in all cases be registered before same could (be) pleaded or given in evidence.”

Learned Senior Advocate for the plaintiff, hereinafter called ‘the respondent’, recast the two issues formulated by the appellants. Issue One because, according to him, admissibility of the Deed of Lease is not an issue in this appeal and Issue Two for reason which I cannot fathom out from the argument of the Learned Senior Advocate. The two issues formulated for the respondent read:
“2.1 Whether the admissibility of the photocopy of the Deed of Lease which is a matter of law is an issue in this appeal.

IN THE ALTERNATIVE even if it is an issue whether the learned judge was right in holding that the lease agreement was inadmissible.

2.2. Whether the Deed of Lease is an instrument which cannot be pleaded or admitted in evidence unless it is registered.”

Arguing Issue One in the Appellants’ Brief of Argument, learned counsel for the appellants contended that the objection to admissibility of a photocopy of the Deed of Lease pleaded by the respondent having been raised and contested by the parties on the ground that the document was neither a primary nor secondary evidence a ruling on the matter ought to be confined to that point only.

Advancing the argument, he further contended that the parties having based their argument of the objection on the admissibility of photocopy of the Deed of Lease and on nothing more raising by the learned trial judge the effect on admissibility of that document of the Land Instruments Registration Law a point which was not raised in either the parties’ pleadings or in their argument of the objection was introducing a new issue gratuitously and coming to a decision on the new point raised.

He submitted that the approach is erroneous as it runs counter to the general principle that bars a court from raising suo motu a point not raised by either party and basing its decision thereon without giving the parties the opportunity to address it on the point, especially the party that may suffer as a result of the point so raised suo motu. In support of that proposition of the law he relied on dicta from the following cases: Usman v. Garke, (1999) 1 NWLR. (Part 587) 466, 470; AlIi v. Alesinloye, (2000) 6 NWLR (Part 660) 177, 189; Dr. Oshodi v, Eyifunmi, (2000) 13 NWLR, (Part 684) 298, 314; and Araka v. Ejiagwu, (2000) 15 NWLR (Part 692) 684, 700. On the consequence of violation of that principle he submitted that it renders the entire proceedings a nullity founding for support on the decision of this court in Okeke v. Okeke, (2000) 3 NWLR (Part 649) 506, 526.

Replying to the appellants’ argument adopting the recast version of Issue One, Learned Senior Advocate for the respondent premised his argument on two points. Firstly, on the fact that the learned trial judge did not specifically disagree with the plaintiff’s/appellant’s counsel in his reason for objecting to the admissibility of the photocopy of the Deed of Lease but he rather proffered his own reason for rejecting the document.

Secondly,that the issue raised by the appellant in this appeal is not admissibility of the document which is at the centre of the debate at the trial court; rather, it is ‘whether the judge’ (of the court below) was right to base his ruling on an issue not canvassed before it (sic).