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Bandele Elegbede V Jacob Babalola (1968) LLJR-SC

Bandele Elegbede V Jacob Babalola (1968)

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The respondent in this appeal was the plaintiff in the Ilesha Southern Grade ‘B’ Customary Court where he instituted action against the appellant claiming in Suit No. SB. 144/62 “recovery of cocoa farm situated at Araromi on refund of £90 loan to defendant.” In that court, evidence was adduced by and on behalf of the plaintiff to establish that he borrowed £90 from the defendant and that as he was unable to refund it he pawned his cocoa farm, the Area Of Law of this case, to the defendant on the understanding that the defendant would sell the crops and use the proceeds to liquidate the debt. The defendant’s case, on the other hand, was that the plaintiff agreed to sell the farm to him for £225 out of which he had paid sums totalling £205 leaving a balance of £20. Four documents written in Yoruba were admitted in evidence at the trial and their English translations were embodied in the judgment of the Customary Court as follows:

Exhibit A

“As regards terms on the farm which Bandele wishes to buy from me, the agreed price is £200. 25 (explained later as £225). He pays £25 and asks me to come for the balance on 21/12/58 when we shall make a document on the farm. The balance is £200. This is my statement.




Bandele has not paid the amount in full.

The amount he has paid is £25.”

Exhibit B

“Re the bargain on the price of my farm, Baba Laisi given me £50. He gives it to me on 23/12/58. This is correct. I am Bandele Elegbe of Araromi Otokobo.”

Exhibit C

“20/1/59. Bandele gives me £20.


Balance is £20.”

Exhibit D was “a letter written by the defendant promising to pay the balance.”

When confronted with Exhibits ‘A’, ‘B’, and ‘C’, in the witness box, the plaintiff (who is also known as J. B. Ogunfemi) admitted signing Exhibit A and he also admitted that he wrote exhibits ‘B’ and ‘C’. Further, he stated that “the agreed price of the farm was £225 but the amount paid as first instalment was £25.” The defendant (who is also known as Baba Lasisi) admitted signing exhibits ‘A’ and ‘B’.

In a reserved judgment delivered on the 13th December, 1962, the President of the Grade B Customary Court after referring to Exhibits ‘A’, ‘ B’, ‘C’, and D stated¬

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“Their dominant note is contract of sale. Coupled with this is the straightforward evidence of the defendant on negotiation and final terms of payment of the agreed price and occupation of the farm by him (defendant) since 1958. The evidence of plaintiff and his witnesses that the transaction between the parties was on a loan of £90 is woefully lacking in merit and, besides, how can it be reconciled with plaintiff’s own writing on Exhibits ‘A’, ‘B’ and ‘C’ which have proved contract of sale beyond reasonable doubt? Furthermore, the plaintiff admitted on oath at a later stage of this case that the agreed price of the farm was £225. This shows no other deal than contract of sale. In view of the unassailable proofs before this court that the transaction between the parties was one of the sale of the farm in question, this action is dismissed.”

The plaintiff appealed against that decision to the Ilesha Divisional Grade A Customary Court, and one of the points canvassed on his behalf in that court was that the President of the Grade B Customary Court misdirected himself in “holding that the issue he was to try was whether the transaction was one of sale or not.” In dismissing the appeal on the 28th May, 1963, the President of the Grade A Customary Court said inter alia:-

“I find it difficult to accept the argument of the learned Counsel for the appellant that the issue whether the transaction between the parties was one of sale of farmland or not was not material in the case before the court. In fact, consideration on the issue was as to whether the plaintiff merely took a friendly loan from the defendant on the terms that the defendant should take the “yield” of his farm.(Sic) The lower court properly considered the point and came to a conclusion of fact on the issue. I find no reason to interfere with the conclusion of fact as found by the lower court since the findings were supported by evidence before the court.”

The plaintiff further appealed to the High Court, Oshogbo, where Faka-yode J. took the view that “exhibits ‘A’, ‘B’ and ‘C’ should not have been received in evidence as receipts since they were not stamped at all, “and that “exhibits ‘D’ and ‘A’ should not have been received in evidence too about agreement for sale of land because of the exclusionary provision of section 16 of the Lands Instruments Registration Law Cap. 56.” He then considered the nature of the transaction between the parties and came to the conclusion that “the circumstances of this case raise the inference of a loan coupled with a pledge of the cocoa farm and not an outright sale.” He entered judgment for the plaintiff for possession of the farm and set aside the judgment of the courts below.

The defendant has appealed to this Court on 3 grounds and his counsel, Mr. Ayoola, sought and obtained leave to argue 4 additional grounds of appeal which were renumbered 4 to 7.

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At the hearing of the appeal, the Court asked Mr. Ayoola to restrict his argument to the 6th ground of appeal because if that ground succeeds, it will be unnecessary to consider the other grounds of appeal. The 6th ground of appeal is as follows:

The learned judged erred in law in holding that Exhibits A, B, and C were inadmissible by virtue of section 21 of the Stamp Duties Law and that exhibit ‘A’ and ‘D’ were inadmissible by virtue of section 16 of the Land Instruments Registration Law (Western Nigeria).”

Mr. Ayoola attacked the judgment of the High Court by submitting that only documents which come within the definition of “instrument” in section 2 of the Land Instruments Registration Law are not registrable as neither of them comes within that definition. “Instruments” is defined as follows in section 2 of the Law:-

“instrument means a document affecting land in the Region whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the Region and includes¬

(a) an estate contract;

(b) a certificate of purchase;

(c) a power of attorney under which any instrument may be executed;

(d) a deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which section 27 of the Trustee Law extends:-

but does not include a will.”

In reply, Mr. Ogunbiyi contended that exhibit ‘A’ is a certificate of purchase but when it was pointed out to him by the Court that certificate of purchase is defined in section 2 of the Law to mean a certificate granted by a court certifying that the right, title and interest of a judgment debtor in certain immovable property has been sold to the person named in the certificate, he conceded that exhibit ‘A’ is not a certificate of purchase.

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As stated earlier, exhibit ‘D’ was a letter written by the defendant promising to pay the balance of the purchase price. We are satisfied that neither exhibit ‘A’ nor exhibit ‘D’ is an instrument as defined by section 2 of the Land Instruments Registration Law, and that the learned judge on appeal was clearly wrong in coming to the conclusion that they are inadmissible in evidence under section 16 which provides, inter alia, that “no instrument shall be given in evidence in any court as affecting any land unless the same shall have been registered.”

With regard to the view expressed by the learned judge on appeal that exhibits ‘A’,  ‘B’, and ‘C’ should not have been received in evidence as they were not stamped, Mr. Ayoola contended that the documents are not chargeable with stamp duty in as much as they are mere record of transactions between the parties. Bearing in mind the nature of the transaction and the wording of exhibits ‘A’, ‘B’, and ‘C’, we cannot agree with the learned judge on appeal that the documents are inadmissible in evidence as, in our view, they are not acknowledgements of payments but solely records of transactions.

The only issue involved in this case was quite clear to the President of Grade B Customary Court who after a fair hearing made findings of facts in favour of the defendant which we consider to be fully justified especially as the plaintiff himself testified that “the agreed price of the farm was £225” thereby implying that the transaction was a sale.

In the result, this appeal will be allowed and it is hereby ordered accordingly. The judgment of the High Court, Oshogbo, in Suit No. HOS/85A/64 including the order for costs is hereby set aside, and the judgment of the Ilesha Southern Grade B Customary Court in Suit No. SB. 144/62 is hereby reinstated.

Other Citation: (1968) LCN/1577(SC)

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