Jinadu Ajao & Ors V. Bello Adigun (1993)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C. 

The appellants were plaintiffs before the High Court of Oyo State sitting at Ogbomosho and claimed against the respondent as defendant, damages for trespass to a piece of land at Ajeja (Adeja) Otafa, Ogbomosho and perpetual injunction to prevent further trespass on the same land by respondent. The appellants were suing on behalf of themselves and Alasa family.

At the end of all evidence after the pleadings by the parties, trial Judge dismissed the appellants’ case holding that they failed to prove their case. An appeal was thereupon lodged before Court of Appeal Ibadan Branch, which in a considered judgment allowed the appeal in part by holding that trial Judge erred in rejecting in evidence a document, marked “Exhibit A Rejected”, being a document setting out the holdings of each party after a previous case between the other parties on adjoining land.

The document seems to explain the portion of a wider land perhaps including part or whole of the land now in dispute. The trial Court held it was a document caught by Land Instruments Registration Law of Oyo State in section 2 thereof wherein it is provided as definition of registrable instrument as follows:

“….2 a document affecting land in the State 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 State 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;”

Secondly, the trial Court was urged by the appellants to visit the locus in quo so as to have a proper grasp of the situation of the land in dispute. The Court rejected the application without any cogent reason. The Court of Appeal found these two matters if admitted into evidence might probably have tilted the decision the other way rather than the verdict of dismissal it returned and ordered a retrial. Kehinde Sofola, Esqr. SAN, for the appellants before us formulated three issues as follows for determination:

ISSUES ARISING FOR DETERMINATION IN THE APPEAL:

(1) In the appellants view the following issues arise for determination by the Supreme Court in this appeal.

(a) Whether the non-admission in evidence of the agreement dated November 9, 1956, and marked. A’ Rejected by the learned trial Judge was such that would properly have led to the Court below ordering a retrial of the whole suit.

(b) Whether the learned trial Judge was in error for refusing to accede to the request made by the Respondent to the learned trial Judge to make a visit to the locus in quo in all the circumstances of this case, and whether the Court below was right to have sent the case back to the High Court for trial de novo because of this.

(c) Whether the learned trial Judge was not right upon the evidence led before him to have made an Order of dismissal of the respondent’s claims, and whether the Court of Appeal was right to have ordered a retrial in view of such evidence.

As against these issues the respondent formulated two issues, to wit:

(a) Whether the exclusion of the document marked’ A’ rejected by the learned trial Judge was wrongful. If the answer is in the affirmative, whether the wrongful exclusion of the document is sufficient to justify the Court of Appeal sending the case back for re-trial.

(b) Whether the learned trial Judge exercised his discretion judicially when he refused the respondent’s application to visit the land in dispute.”

The Court of Appeal in the leading judgment of Ogundare J.C.A. (as he then was) went to great length in examining the document rejected as “Exhibit A Rejected” and held it was not a registrable instrument under S.2 Land Instrument Registration Law. It is pertinent to a proper appreciation of this document to copy it out.

“DECLARATION OF BOUNDARY LINES BETWEEN THE FARM LANDS BELONGING TO CHIEF ALASA AND CHIEF ALAPA, OGBOMOSHO

THIS IS TO CERTIFY THAT WE, THE UNDERSIGNED, Chief Larewaju Ojo Alasa and Chief Oyewale Alapa, Ogbomosho, do hereby declare and state, for ourselves and on behalf of all our families, for future reference and in order to avoid any land dispute, in that we have common boundaries as follows-

(a) That from Odo Adeja to Oke Otafa Chief Alapa’s farmland situated at right hand side and Chief Alasa farmland at the left hand side.

(b) That from Oke Otafa Antorun Chief Alapa’s farmland, being and situate at the right hand side and Chief Alasa’s farmland at the left hand side.

(c) That from Antorun to Akeran, Chief Alapa’s farmland being and situate at the right hand side and Chief Alasa’s farmland at the left and side.

N.B These portions of farmland had been included in the survey plan made and on which judgments of the Courts stand in Chief Alasa’s favour in the case Ogungbayi, Bale Paku v. Larewaju Alasa and they are hereby separated and allotted to Chief Alapa, Ogbomosho, Oshun Division, Ibadan Province, Nigeria this 9th day of the month of November, 1956 at Ogbomosho.

AGREED PARTIES

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LAREWAJU ALASA’

Chief Alasa

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OYEWALE ALAPA

Chief Alapa

` WITNESSES

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Oke His X.M.K.

For Alasa’s families

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For Alapa’s families”

The definition of “instrument” for the purpose of Land Instruments Registration Law is very clear. There must be a party within the meaning of the Law called or regarded “grantor” who “confers, transfers, limits, charges or extinguishes in favour of another” also called and known within the same Law as “grantee”. “Exhibit A Rejected” does not pretend to confer or transfer or limit any right or extinguish any right in favour of anybody. All it did was to define exactly the purported existing rights of each family in the larger land area including the one previously in dispute and decided upon by a court of competent jurisdiction so as to “avoid any land dispute” between the families. The document did not purport or pretend to show any of the families as surrendering or conceding any right it had, rather it spelt out the existing rights of each family. This document it completely out of the ambit of S.2 Land Instrument Registration Law and it is not caught by S.16 of the same Law for it to be rejected in evidence. As Ogundare J.C.A. (as he then was) clearly stated in his judgment inter alia:

“The said document, in my humble view and with respect to the learned Judge, is not a document required by law to be registered the document is clearly relevant to the issues between the parties (and) I am of the further view that it should have been admitted by the learned trial Judge (and) was in error to have rejected the document”. (brackets mine).

Sofola Esqr. SAN alluded to S.226(2) of Evidence Act that the wrongful admission of evidence should not per se lead to reversal of trial Court’s decision unless certain conditions are met. That provision is very clear in its purport as it states:

226(2) “The wrongful exclusion of evidence shall not of it self be a ground for the reversal of any decision in any case if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same.”

With great respect, that section of Evidence Act is very clear in its purport. Had “Exhibit A Rejected” been admitted in evidence by trial Court, could that Court with certainty be returning the same verdict The document was made so as to preserve peace between the two families. Alasa and Alapa and set out for the future generation” what they believed to be their respective holdings on the large piece of land, not that any of them was conceding anything. It is a very important document and its import on final decision in the trial Court no doubt would have been of great significance. The rejection of the document was in error as it is not “an instrument” within the meaning of S.2 Land Instruments Registration Law of Oyo State. The document confers no right, extinguishes no right: nor was it transfering any right or obligation but it merely restates what the parties believed was the existing right of the parties Bamidele Elegbe v. Jacob Babalola (1968) All NLR 337.350.351: Asani Taiwo & Ors. v. Adamo Akinwunmi & Ors. (1975) 1 All NLR (Pt.1) 202. 229. 230.

The document was pleaded and as it was tendered it was very material to the case before the trial Court. The weight on consideration of the document vis-a-vis all the evidence before the Court is another matter. But it is not an “instrument” for purposes of S.2 of Land Instruments Registration Law, it was wrong for trial Judge to have rejected it in evidence for trial Judge seems no doubt to have invoked the far-reaching consequences of S.16 Land Instruments Registration Law (supra) which states:

“16. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3:

Provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered .”

As it is impossible to surmise here what effect it would have had on the final fate of the case the only reasonable and just decision by the appellate Court was to order trial de novo. That has been the only just thing to remedy the unfortunate error of learned trial Judge in rejecting the document.

Trial Judge, without visiting the locus in quo, employed just as the witnesses did, the description “right side” and “left side” The is unfortunate. The language of the Court must always follow the technical survey descriptions. The cardinal points of description in ordinance surveys are the directions, that is to say, North, South, East and West including points between them e.g. North-East, North- North-East, South-South-West and so forth. The use of descriptions such as “to the right” or “to the left” or “up” or “down” are not only confusing they are incompatible with proper decision making to manifest justice in tried cases in Court. It is true that some parties are in the habit of these confusing descriptions, the Court may understand if starting points and ending points are included in such descriptions. But right in a void as to starting point and ending point locations are bluntly in the form of “to the right” or “to the left”. The Court should not only accede to application for visit to locus in quo, it should do so suo motu. It is in the discretion of the Court to accede to an application to visit the scene but such discretion should be exercised judicially and must be acceded to if only so doing will give certainty to the land the parties refer to. Failure to visit the locus in quo in the face of confusing descriptions ought to have prompted learned trial Judge to undertake the visit. The Court of Appeal was therefore perfectly right to have frowned on the failure of the trial Judge to grant the application.

In the final result, I, for the foregoing reasons, find no reason to interfere with the judgment of the Court of Appeal and dismiss this appeal with N1,000.00 costs to the respondent against the appellants.

WALI, J.S.C.: I have read before now, the lead judgment of my learned brother, Belgore, J.S.C. I entirely agree with the reasoning and conclusion contained therein.

For those same reasons, which I hereby adopt, I also dismiss the appeal and abide by the consequential orders made in the lead judgment.

KUTIGI, J.S.C.: I have had a preview of the lead judgment of my learned brother Belgore. J.S.c.. I agree with his reasoning and conclusions. The appeal is dismissed with costs as assessed.

OGWUEGBU, J.S.C.: The Supreme Court was unable to make the judgment of the Hon. Justice Emanuel Obioma Ogwuegbu, J. S.C. available for publication because the Hon. Justice was involved in a motor accident which occurred on Tuesday, 9th February, 1993.

MOHAMMED, J.S.C.: The Hon Justice Shehu Usman Mohammed concurred with the leading judgment at the Chambers Conference of the Justices of the Supreme Court on this case. However, unfortunately, before the date of the delivery of the judgment, he died in a ghastly motor accident.

Appeal dismissed.

SC.8/1989