United Bank for Africa Plc & Ors V. Mrs. Olatohun Ayinke(2000)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
T
his is an appeal against the judgment or the High Court of Justice of Kwara State sitting in Ilorin Judicial Division in suit No. KWS/299/94 delivered by Hon. Justice J.A. Ibiwoye on the 17th day of February, 1999 in favour of the respondent.
In paragraph 16 of the Statement of Claim at page 13 of the record of proceedings, the respondent, as Plaintiff claimed against the appellants as follows:
“16. WHEREOF the Plaintiff claims jointly and severally from the Defendant (sic)
(i) A declaration that the purported sale of the plaintiffs house lying and situate at Kulende, behind Goodwill Hotel on 28/11/94 by the 2nd Defendant acting on behalf of the 1st Defendant is illegal, unconstitutional, null and void.
(ii) An order selling aside the sale of the said house.
(iii) A declaration that the purported Mortgage of the Plaintiff’s house by the 3rd Defendant to the 1st Defendant without her knowledge or consent is illegal unconstitutional and null and void.
(iv) A perpetual injunction restraining the Defendants by themselves their agents, or any other person however from doing anything whatsoever in respcct of the said building.
(v) Damages of fifty Thousand Naira (50,000.00) for the unlawful act and embarrassment caused to the plaintiffs person”.
The facts of the case as can be gathered from the evidence and that the 3rd Defendant, now late was a customer of the 1st Appellant at its Osogbo branch where he enjoyed credit facilities which as at the time material to the institution of the action amounted, together with accumulated interest, to the sum of N340,432.79.
As security for the credit facilities the 3rd Defendant executed a Deed of Mortgage in favour of the 1st Appellant over a property covered by Statutory Right of Occupancy No. 5194. The Deed of Mortgage is Exhibit ‘D3’. The 3rd Defendant also deposited a Certificate of Occupancy No. KW5194 as well as the Deed of Conveyance both in respect of the same properly with the 1st Appellant. The 3rd Defendant defaulted resulting in the 1st Appellant engaging the services of the 2nd Appellant to auction the said properly.
Following the publication of the Notice of auction and the eventual auction of the property, the Respondent instituted the action claiming that the property used as security belongs to her not the 3rd Defendant and that she only gave the documents to the 3rd Defendant who was her senior brother to keep for her which he later used to secure his loan with the 1st Appellant without the knowledge, authority or consent. She tendered a purchase receipt for the land as Exhibit 1; site plan as Exhibit 2; building plan as Exhibit 3 and a booklet of receipts 1981 – 1993 as Exhibits 4 – 22. She told the court that she bought the land from one Alhaji Sule Tahiru and obtained a receipt.
At the conclusion of the trial the learned trial Judge found for the plaintiff – now Respondent. Being dissatisfied with the judgment, the Appellants have appealed to this court on six grounds of appeal out of which learned Counsel for the Appellant Alhaji MOH’D Surajudeen O. Adegboye has formulated four issues in his brief of argument for the determination of the appeal.
The issues are as follows, and I quote:
“1. Whether the Respondent herein has succeeded in proving her alleged ownership of the property in issue in this appeal having regard to pleaded fact and admissible evidence (ground of appeal numbers 1 and 3).
- Whether the learned trial Judge was not wrong in holding that the 1st Appellant was negligent in relation to Exhibit ‘D3’ and that the 3rd Defendant was fraudulent when the above twin issues are not covered by the pleadings of the parties (ground of appeal number 2 and 4).
- Whether the learned trial Court was not wrong to have held in its judgment that exhibit ‘D2’, the deed of conveyance was not admissible. (Ground or appeal number 5).
- Whether the cause of the Respondent is properly constituted and the proper and necessary panics joined to the suit having regard to the fact that the Deceased 3rd Defendant’ s estate or his personal representative was not substituted for him upon his death and the Kwara State Government and Ilorin Local Government which respectively issued Exhibit ‘D1’ and ‘D4’ to the 3rd Defendant were not joined to this suit (Ground of appeal number 6)”.
During arguments, both Counsel adopted their respective brief of argument and stated that they had nothing more to add. While still dealing with the issues for determination, it is important to note that the learned counsel for the Respondent, Aliyu Salman, SAN in his brief of argument filed on 4/12/98 page 1 paragraph 3, adopted the issues as formulated by learned counsel for the Appellants. The appellants’ brief of argument was filed on 28/10/98.
In his argument on issue number 1, learned Counsel for the Appellants submitted that the Respondent not having pleaded fraud nor supplied any particulars of fraud cannot seek to set aside the sale of the building to a third party particularly as the 3rd Defendant had superior and weightier documents of title. That the respondent did not seek an order nullifying the certificate of occupancy granted to the 3rd defendant. That Exhibit 1 tendered by the Respondent is issued in the name of one Alhaji Tahiru Sule who is not a party to the suit neither is tile said Exhibit 1 pleaded by the Respondent. That the Respondent failed woefully to prove her case by preponderance of evidence.
That the Respondent failed to discharge the burden of proof cast on her by section 137 of the Evidence Act, as amended.
That looking at the other side of the imaginary scale of justice it is clear that the Appellants who rely on a Deed of conveyance exhibit ‘D2’ executed in favour of 3rd Defendant; Customary Right or Occupancy Exhibit ‘D4’. Statutory Right of Occupancy Exhibit ‘D1’ and the Deed of legal Mortgage Exhibit ‘D3’ executed by the 3rd defendant in favour or the 1st Appellant, have a better claim to title particularly as Exhibit was never pleaded and also irrelevant.
That in any action for declaration of title to land the onus or proof rests on the Plaintiff and that the Plaintiff is only entitled to rely on the strength of his case and not on the weakness of the defence. For this learned Counsel cited and relied on the case of Ebodade v. Atomesin (1997) 5 SCNJ 13 at 21 – 22: (1997) 5 NWLR (Pt.506) 590
Learned Counsel further submitted that title to land can he established by any of the following:
- Traditional evidence
- Production of documents of title
III. Act of selling, leasing etc
- Act of long possession,
For this submission, learned Counsel relied on the case of Lawson v. Ajibulu; I & Ors. (1997) 6 SCNJ 1 at 13, (1997) 6 NWLR (Pt.507) 14.
He then submitted that, the Respondent has failed to establish her ownership of the land in dispute since she does not rely on any title document or historical evidence. That she failed to call Alhaji Tahiru Sule as witness. That Alhaji Sule is a material witness whose evidence would have assisted the court one way or the other to arrive at a just decision of the matter.
That exhibit 1, 2, 3 and 4 to 22 cannot be relied upon to prove any title.
Turning to the case of the Appellants, learned Counsel submitted that the Appellants succeeded in putting forward a strong and credible case through exhibits ‘DI’, ‘D2’, ‘D3’ and ‘D4’ that the 3rd Defendant had an unimpeachable ownership of the property in issue, That exhibit ‘D2’ shows that the land on which the building was constructed belong to the 3rd Defendant. That is why the Kwara State Government issued the 3rd Defendant exhibit ‘D1’ – Statutory Right of Occupancy just as the Ilorin Local Government issued him with exhibit ‘D4’ – Customary right of Occupancy.
Learned Counsel then submitted that the learned trial Judge made finding of fact which were based on unpleaded facts and inadmissible evidence. That this led to the holding of the Court at page 60 of the record to the effect that:
“On the other hand i am inclined to agree with the submission of the learned Senior Advocate that the plaintiff has proved her ease by the production or relevant documents of title to the land vide Exhibits 4 to 22 which have not been challenged. It is clear from the evidence before the court that, the plaintiff got her title from Alhaji Tahiru Sule who has a valid title to convey to the plaintiff.”
That there is nothing on record to show that Alhaji Sule conveyed any valid title to the Respondent. That exhibit 1 which bears the name of Alhaji Tahiru Sule goes to no issue because it is not pleaded neither does it refers to the Respondent.
That the genuineness of Exhibits ‘D1’ and ‘D4’ – Statutory Right of Occupancy and Customary Right of Occupancy were never challenged. That these documents establish ownership of the property in the 3rd Defendant.
Finally, learned Counsel urged the Court to resolve this issue in the negative and allow the appeal.
On his part, learned Counsel for the Respondent Aliyu Salman, SAN in his brief of argument filed on 4/12/98 submitted that the Respondent has the onus to prove her case only on the balance of probability. That the Respondent discharged that burden by proving that she bought the land from Alhaji Tahiru Sule. That by virtue of Exhibit 1, the respondent was in possession since the building was constructed.
That exhibits 2 and 1 are evidence of ownership.
That the law is that receipt of purchase of evidence of purchase coupled with possession is enough proof of ownership. That this evidence is established by Exhibits 1, 2, 3, 4 … 22. That the evidence was not challenged, so it should he accepted as true. For this, learned Counsel referred to the cases of Insurance Brokers of Nigeria v. Atlantic iles Manufacturing Co. Ltd. (1996) 8 NWLR (Pt. 466) 316: Odebunmi & Ors. v. Abdullahi (1997) 2 SCNJ 112 at 115, (1997) 2 NWLR (Pt. 489) 526.
That a certificate of occupancy obtained pursuant to an invalid or/and unlawful conveyance and other documents at the land registry is void because nothing can be built on nothing.
That fraud on the part of the 3rd Defendant can be inferred from the pleaded fact. That 3rd Defendant was a constructive trustee for the respondent and should not benefit from his wrong.
That the 1st Appellant was negligent in granting the loan to the 3rd Defendant merely on the production of exhibit D1, D2, D3, and D4 which documents are bad and invalid.
That the findings of the trial court at page 60 cannot be faulted because from Exhibits 1, 2, 3, 4 -22 it is clear that the ownership of the property in dispute lies in the Respondent.
That exhibit D2 on which every other exhibit of the Appellant was based was inadmissible. That the respondent proved her title by production of documents title, acts of leasing and act of long possession; while the appellants failed to prove a better title.
That the case of Lawson v. Ajibulu, supra cited by his learned friend is not apposite to this case. That in the present case, the Respondent was able to trace her root of title to a person who would give valid title, obtained necessary documents of title and put tenants in it for years. That her right to the land was not revoked nor set aside by the Certificate of Occupancy issued to the 3rd Defendant. That the 3rd Defendant cannot show a better title so preponderance of reliable evidence is on the side or the Respondent to justify the trial Court’s findings: learned counsel further submitted.
That in a claim for declaration of title to land once the Plaintiff has shown that he has title by tracing the same, the onus shifts on to the defendants to show that he has a better title than the plaintiff. That the Appellants have not dislodged the Respondents claim by show of a better title. That where the Appellant’s title documents are defective then they have a better title. For his learned Counsel referred to the case of Oruonfoman v. Okoeguale (1986) 5 NWLR (Pt. 49) 179.
That the Respondent being a deemed grantee of a certificate of occupancy – see sections 34, 36 of the land Use Act 1978, must have her occupancy terminated before any certificate can or over ride hers. That there is no such evidence.
He then urged the court to answer issue No. 1 in the affirmative and dismiss the appeal.
I intend to treat issue No. 1 together with issue No.3, which is whether the learned trial Court was not wrong to have held in its judgment that the exhibit ‘D2’ the Deed of Conveyance was not admissible (Ground of appeal number 5). This is because they relate to each other being essentially complaints on evidence.
The learned trial Judge had, during the proceedings admitted exhibit ‘D2’ but at page 61 of the record he held as follows:
“It will be recalled that DW1 also confessed that exhibit ‘D2’ was not registered. By the authority of the case of Alhaji Saidu Usman v. Alhaji Salihu Kareem (1995) SCNJ 158 at 164 (1995) 2 NWLR (Pt.379) 537 exhibit D2 is not admissible in evidence, the evidence in this regard is therefore of no probative value”.
The learned Counsel for the Appellants has argued that the court is wrong in overruling itself on the admissibility of exhibit ‘D2’ without giving reasons justifying that decision. That exhibit ‘D2’ is not a register able document being an agreement made in anticipation of a certain event and does not convey title per se. That, a Deed of Conveyance is not a registerable instrument when it is tendered for the purpose of showing that money was paid by buyer to the seller he cited the case of Adesanya v. Otuewu (1993) 2 SCNJ 77 at 95 and 112, (1993) 1 NWLR (Pt. 270) 414.
That the case of Usamn v. Kareem supra relied upon by the trial Judge in his judgment is not applicable to the case. He urged the Court to hold that exhibit ‘D2′ was wrongly excluded by the trial Court.
On the other hand, learned SAN for respondent submitted that exhibit D2’, being a conveyance at law it must conform with the necessary regulatory instructions to be valid. That Exhibit ‘D2’ attempts to convey landed property to the 3rd Defendant so it must comply with the land instrument Registration Law and the conveyance Act 1881 as applicable in Kwara State of Nigeria by registering and stamping the said exhibit ‘D2’ neither of this was done.” Learned Counsel further submitted that, this failure makes the document inadmissible.
That an inadmissible document admitted inadvertently can be expunged by the Court during the writing of the judgment.
That exhibit ‘D2’ was not tendered as evidence of payment but of title to the land. He urged the Court to resolve the issue by holding that exhibit ‘D2’ was rightly expunged by the learned trial Court.
I have gone through the facts of this case, the pleading, submitted of learned Counsel for the parties and the authorities cited in support of their respective positions.
For the Respondent to succeed in a case of declaration of title to land he must prove same. He must establish the method by which he acquired the said title – either by purchase, gift, grant, devolution upon death etc, and must also prove exclusive possession of the land. Ownership of land is therefore established in the following ways:
(a) Traditional evidence.
(b) Production of documents of title.
(c) Act of selling, leasing and
(d) Act of long possession.
See the Supreme Court decision in Lawson v. Ajibulu (1997) 6 SCNJ 1 at 13, (1997) 6 NWLR (Pt. 507) 14.
In this present case, the Respondent said she purchased the land from one Alhaji Tahiru Sule and tendered the following documents in proof of her title.
(a) Exhibit 1 – Departmental receipt issued to Alhaji Tahiru Sule;
(b) Exhibit 2 – Site plan for Madam Olatohun Ayinke along Jebba Road, Kulende, Ilorin;
(c) Exhibit 4 – 22 – being receipt booklets of rent and
(d) Exhibit 23 – being Notice of auction.
The relevant exhibits for this purpose of the issue under consideration are exhibit 1 – 22.
It is now well settled that, in a claim for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defence, although any evidence adduced by the defence which is favourable to the plaintiff’s case will necessarily strengthen the case of the plaintiff – see Kodilinye v. Odu (1935) 2 WACA 336 AT 337; Akinole v. Oluwo (1962) 1 All NLR 224 at 225; Egonu v. Egonu (1978) 11 – 12 SC 111 at 130; Fasikun II & Ors. v. Oluronke II (1999) 1 SC 16 at 38 (1999) 2 NWLR (Pt. 589) 1.
Equally trite is the principle of law that the evaluation of evidence and the ascription of probative value of such evidence are the primary functions of a trial court which saw, heard and assessed the witnesses. Where therefore a trial Court clearly evaluated the evidence of the parties and appraised the facts, it is not the business of the Court of Appeal to substitute its own views of the facts for those of the trial court – See Akinloye v. Eyiyola (1968) NWLR 92 at 95; Enang v. Adu (1981) 5 SC 291 at 320.
However, an appellate Court will interfere where there are special circumstances justifying such or where the finding are unsound and where the trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse- see Omoregie v. Idugiemwanye (1985) NWLR (Pt. 5) 41 at 42; Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410 etc.
At pages 59 and 60 of the record of proceedings that learned trial judge held as follows:
“…I am in full agreement with his submission that in a claim for declaration of title to land the onus of proof lies on the plaintiff and except in a few case such onus never shifts. However, learned Counsel for the 1st and 2nd Defendants must be reminded of the evidence of the plaintiff in her evidence in chief party of which reads:-
…I showed exhibit 23 to my older brother (3rd defendant). He told me that he mortgaged the property when he was in financial problem by obtaining documents in respect of the house. My brother also told me that as he redeemed the pledged he would get the papers back and the house would not be void. He did not have my consent for the mortgage, I do not transfer the house to anybody…”
On the other hand, I am inclined to agree with the submission of the learned Senior Advocate that the plaintiff has proved her case by the production of relevant documents of title to the land vide exhibit 4 to 22 which have not been challenged. It is clear from the evidence before the Court that the plaintiff got her title from Alhaji Tahiru Sule whose title has not been challenged. It is also clear that Allahi Tahiru Sule also has a valid title to convey to the plaintiff…”
To begin with the first paragraph of the judgment quoted above particularly the portion dealing with the evidence in chief of the Plaintiff – now Respondent is without fear of contradiction complete hearsay so it does not matter if that piece of evidence was not refused. It was therefore wrong for the trial court to have placed any weight on that inadmissible evidence. See the underlined portion.
On the issue of production of relevant documents of title by Respondent, it is important to note that the root of title of the Respondent is Exhibit 1. It is the complaint of the Appellants that not only was Exhibit 1 not pleaded by the Respondent it was never issued to her but to a person who is not a party to the case. Exhibit 1 is a departmental receipt No. 53286. It states:
“Received from Alhaji Tahiru Sule, Kulende Area, Ilorin ten naira, Nil kobo, on account of alienation of land vide Form B No. 2475 of 7/2/77…”
Now paragraph 6 of the statement of claim at page 12 of the record of proceedings states as follows:
“6. That Plaintiff avers that sometimes in 1977, the 3rd Defendant advised her to sue the proceed kept with him to buy another land. Evidence will be led on how she purchased a piece of land from one Alhaji Sule Tahiru.”
In her evidence-in-chief at page 33 of the record the respondent said inter alia;
“I then bought a pace of land at Kulende. I know one Alhaji Sule Tahiru from whom I purchased the land. He gave me a receipt.
This is the receipt”.
The record shows that when the learned SAN sought to tender the receipt it was strenuously objected to on the ground that it was not pleaded etc. In his ruling on this point the learned trial judge said:
“I agree that the name on the receipt sought to be tendered is not that of the plaintiff but the name of Alhaji Tahiru Sule which appears on the receipt is specifically mentioned in paragraph 6 of the statement of claim. On this promise (sic) I am of the opinion that the document sought to be tendered is admissible in evidence.”
The Court then went ahead and admitted the document and marked it as exhibit 1.
It is very clear from the ruling of the Court quoted in extensor supra that, the Court agreed that exhibit 1 was not pleaded in paragraph 6 of the Statement of claim and it is beyond doubt that exhibit I was not pleaded. The Respondent pleaded in the said paragraph 6 of the statement of claim that she purchased piece of land from the Alhaji Tahiru Sule in 1977 and that she could produce evidence at the tiral to prove that assertion. Unfortunately, exhibit 1 rather states that Alhaji Tahiru Sule paid N10.00 on account of alienation of land. It does not state the person to whom the alleged land was alienated. Exhibit 1 is also not receipt issued by Alhaji Tahiru Sule to the Respondent on account of the alleged alienation of land. In short, Exhibit 1 is evidence of Alhaji Tahiru Sule’s intention to alienate land but not proof of the fact of the alienation, let alone alienation to the Respondent.
It is trite that a party is bound by the pleadings and shall not be permitted to put up an entirely new case. It has always been held that matters not pleaded go to no issue and should not be admitted in evidence and, it admitted, should be ignored or discountenanced in the absence of amendment of the pleadings – see Njoku v. Eme (1973) 5 SC 293, Okafor v. Okitiakpe (1973) 2 SC 49, Emegokwue v. Okadigbo (1973) 4 SC 113, Onamade v. A.C.B. Ltd. (1997) 1 NWLR (Pt. 480) 123 etc.
The learned trial Judge also relied on exhibits 4 to 22 as documents of title. I have gone through the exhibits. They are receipt booklets issued to tenants.
There is evidence that the Respondent owns a house at No. 2 Sadiku Street, Kulende. There is also the fact that the property in dispute is alleged to be No. 5 Sadiku Street, Kulende. However, none of the receipts issue in the booklets – exhibit 4 – 22 contains the address of the tenants on which the rents were payable. There are two different addresses of the respondent printed on exhibits 4 – 22. One is:
MRS. OLATOUN ABIGAEL ARINKE
IYA OLUWA-SEUN
NO 2, OLORUNSOGO STREET
ILE ONIRE
KULENDE – ILORIN.
While the other is
MRS. OLATOUN ARINKE
IYA OLUWA-SEUN
- 2 ALAGBON STREET
KULENDE, ILORIN.
PW1 said that the respondent owns and lives at No. 2 Sadiku Street, Kulende, Ilorin. From exhibits 4 – 22 it is clear that the Respondent has two other addresses. Since the tenants who allegedly paid rents to the Respondent in respect of accommodation have not been clearly shown paying the rent in respect of No. 5, Sadiku Street, being the property in dispute exhibits 4 – 22 cannot be regarded as conclusive proof of ownership and exclusive long possession of the property in dispute as the trial Court held. Exhibit 4 – 22 therefore do not contain the identity of the property for which the rents were received by the Respondent.
It is equally important to note that the Respondent did not call her alleged vendor Alhaji Tahiur Sule to testify on her behalf. The burden was not her’s to prove her title particularly as the 3rd Defendant claimed title and used the property to secure a mortgage with the 1st Appellant. There is no evidence that Alhaji Tahiru Sule is dead. The respondent does not also call her boundary neighbours to conform her story.
I must pause here to consider the issue of exhibit ‘D2’ which is dealt with under issue No. 3 which I had said is interwoven with the resolution of issue No. 2 since it has not a lot to do with the title of the 3rd Defendant. Exhibit ‘D2’ is a Deed of Conveyance allegedly entered into on 25th may, 1976 between Alhaji Tahiru Sule at Kulende Area Ilorin as the vendor and the 3rd Defendant. Mr. Isaac Durosinmi of Olomo-Oba’s compound as the purchaser.
It purports to convey the land in issue to the 3rd Defendant in consideration of the sum of N1,000.00 . The instrument is stamped but not registered. It was pleaded and tendered in evidence objected to but admitted and marked as exhibit ‘D2’. However, while writing this judgment the learned trial Judge discountenanced it hence the complaint of the Appellants.
It is to be judicially noticed that Kwara State formed part of the former Northern Nigeria and that Cap. 58, Land Registration Law of Northern Nigeria is applicable to Kwara State.
Now section 6 of Cap. 58 provide that:
“6. Subject to the provisions of this law; every instrument executed after the commencement of this law shall be registered.”
By section 74 of the said Cap. 58 non registration renders the instrument void.
The word ‘instrument’ is defined in section 2 of Cap. 58 to mean:
“A document affecting land in Northern Nigeria 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 Northern Nigeria and inclined a certificate of purchase and a power of Attorney under which any instrument may be executed but does not include a will.”
From the above definition, it is clear that Exhibit ‘D2’ qualifies as a registerable instrument under Cap. 58.
However, in section 15 of Cap 58 it is provided that:
“15. 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.”
I agree with both the learned trial judge and learned Counsel for the respondent that exhibit ‘D2’ is caught by section 15 of Cap. 58 and as such it is in admissible in “any court” on the ground that it was not registered.
In this case, it is true that Exhibit ‘D2’ was admitted inspite of objection to that effect. However, that was not fatal in so far as the Court had a second chance to look at the document during the trial court is in conformity with the law and I so hold. See the Supreme Court decision in the case of Ajayi v. Fisher (1956) 1 NSCC 82 at 84 (1956) SCNLR 279 in which the Court held that:
“In a trial by a Judge alone as in the present case, however, it would seem that if inadmissible evidence had been received (whether with or without objection) it is the duty of the judge to reject it when giving the judgment, and if he does not do so, it will be rejected on appeal.”
However, that is not the end of the matter. The Appellants have argued that though exhibit ‘D2’ may be inadmissible on ground of non-registration, it is admissible as evidence of receipt of payment for the land. This has been seriously contested by learned SAN for the Respondent who even said that exhibit ‘D2’ is not stamped. To being with exhibit ‘D2’ is stamped by imbursement. It is my considered view that exhibit ‘D2’ is admissible in evidence to prove the fact that some money exchanged hands between the parties in Exhibit ‘D2’ – in this case N1,000.00 on account of a land transaction testified thereto.
In Ogunbambi v. Abowab (1951) 13 WACA 22, it was held that the payment of purchase money and the delivery of possession to the Plaintiff granted a valid title by native Law and custom while in Adesanya v, Otuewu (1993) 1 SCNJ 7; (1993) 1 NWLR (Pt. 270) 414 the Supreme Court per Olatawura, J.S.C (as he then was) held that:
“An instrument or conveyance which is not registered as in the present case, under the Land Instrument Registration Law, is inadmissible as proof of title but is admissible as an acknowledgement of the receipt of money.”
That being the case the Court is faced with the case of the Respondent without purchase receipt vis-a-vis the case of the 3rd Defendant who has a receipt of payment for the land in exhibit ‘D2’ by operation of the law. Apart from exhibit ‘D2’ there are also the two certificates of occupancy both in favour of the 3rd Defendant. It is my considered opinion that a proper evaluation of the evidence and a placement of the two case on the imaginary scale of justice tilts the balance against the Respondent. In short the Respondent failed to establish the fact that she is entitled to in law to the declaration sought.
That apart is the law that a certificate in occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises a presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the insurance of the certificate of occupancy then the Court can revoke it – See Haruna v. Ojukwu (1991) 7 NWLR (Pt. 207). Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254 at 269 – 207.
In the present case, the Respondent did not attached the certificate of occupancy issued to the 3rd Defendant and she has not produced any evidence to rebut the presumption in favour of the 3rd Defendant.
That being the case, it is my considered view that issue numbers 1 and 3 be and are hereby resolved in favour of the Appellants.
Issue No. 2 is whether the trial Judge was not wrong in holding that the 1st Appellant was negligent in relation to exhibit ‘D3’ and that the 3rd Defendant was fraudulent when the above twin issues are not covered by the pleadings of the parties.
In his submission learned Counsel for the Appellants stated that neither party pleaded nor gave evidence on any matter connected with or relating to negligence.” That the trial Court made a different case for the parties by pronouncing on negligence. That the Court thus traveled outside the pleadings. Learned Counsel referred the court to Oviawe v. Integrated Rubber products & Anor (1997) 3 SCNJ 29 at 39, (1997) 3 NWLR (Pt.492) 126.
That where a party whishes to rely on negligence he must plead same specially relying on Koya v. U.B.A. Ltd. (1997) 1 SCNJ 41 at (1997) 1 NWLR (Pt. 481) 251.
That the plaintiff is also required in addition to state and establish the duty of care owed to him by the defendant and the breach of that duty.
That the issue of fraud was equally not raised either in the pleading or evidence adduced that the Court erred in importing the issue of fraud into the case. That a party who seeks to rely on fraud must specifically plead same and provide the particulars of the alleged fraud – see Onamade v. A.C.B. Ltd. (1997) 1 SCNJ 65 at 84; (1997) 1 NWLR (Pt. 480) 123.
That the misapprehension of fact and the law by way of consideration of mattes and issue outside pleading has occasioned a serious miscarriage of justice and urged the Court to resolve issue No. 2 in the positive and allow the appeal.
In his reply learned Counsel for the Respondent submitted that, the Supreme Court and the Court of Appeal have decided in very many cases that where fraud is clear from the evidence adduced before the Court, the trial Court cannot close its eyes to it. That it is therefore not material if fraud is not specifically pleaded by the party who seeks to rely on it. Two things are clear from this submission viz:
- The learned Counsel has not referred this court to any legal authority for the sweeping proposition he has made even though he stated that such authorities abound.
- Learned Counsel clearly and unequivocally admitted that the Respondent did not plead fraud in the statement of claim.
It is note worthy that learned counsel for the respondent did not deal with the sub-issue of negligence under issue No. 2.
At page 61 of the record of proceedings the learned trial judge state thus;
“Further, I believe that the 1st Defendant has been negligent in this case. As such the 1st Defendant cannot also be allowed to benefit form its negligence. As a Bank there are many avenues open to it to detect the owner of the property if it cared to do so. The negligence of the 1st defendant further magnified in Exhibit ‘D1′”
On the issue of fraud the learned trial Judge stated at page 60 of the record as follows:
“The 3rd Defendant though now deceased; cannot be allowed to reap where he did not sow and thereby benefit from his fraudulent practices.”
I have gone through the pleading of the parties and the evidence adduced the trial and have been unable to find where the twin issues of negligence and fraud relied upon by the learned trial Judge is pleaded. There is also no evidence from which they can be inferred.
In Koya v. U.B.A. Ltd. (1997) 1 SCNJ 41 at 42, (1997) 1 NWLR (Pt. 481) 251, the Supreme Court stated as follows:
“The one issue that ought to be stressed is that a plaintiff as a matter of law, is required, in an action on negligence to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care, owed to him by the Defendant.”
As regards fraud, not only must the plaintiff plead and give particulars of the fraud alleged he must prove same beyond reasonable doubts since fraud is a criminal offence. See the Supreme Court decision in Onamade v. A.C.B. Ltd. (1997) 1 SCNJ 65 at 84 91997) 1 NLWR (Pt. 480) 123; U.C.A. Ltd. v. Taylor (1936) 2 WACA 70; Usenfowokan v. Idowu (1969) 1 NMLR 77.
It is therefore settled law that an imputation of fraud cannot be inferred from the facts as learned counsel for the respondent has contended.
Since partisan are bound by their pleadings and are not allowed to put up and entirely (1973) 5 SC 293. Onanude v. A.C.B. Ltd. supra.
It is my considered opinion that the issues of negligence and fraud having been raises suo motu and without being pleaded, they ground to no issue and the reliance on same by the learned trial judge in coming to the decision he did in the present case has resulted in a miscarriage of justice.
It is not the duty of the Court of law to make a case for the parties different from what they presentd before the Court for adjudication. See Ogunlowo v. Ogundare (1993) 7 NWLR (Pt. 307) Ojo-Osagie v. Adonri (1994) 6 NLWR (Pt. 349) 131 at 154.
On the fourth and final issue, learned Counsel for the Appellants submitted that for the Respondent to succeed, she must be able to displace the rival claim of the 3rd Defendant to the ownership of the property in issue. That the 3rd Defendant died since 14/8/96 and his estate was not joined nor his personal representatives. That the 3rd Defendant of his estate is a necessary party and that in their absence the action is not effective. That the 3rd Defendant or his estate is a party whose interest will be affected by the outcome of this case.
That exhibit ‘D1’ is a certificate of occupancy issued to the 3rd Defendant by the Kwara State Government which exhibit ‘D4’ is an Ilorin Local Government Right of Occupancy also issued to 3rd Defendant. That to invalidate exhibits ‘D1’ and ‘D2’ the respondent ought to have joined the Kwara State Government and Ilorin Local Government as parties to this suit as they are necessary and proper parties. That where a trial Court becomes aware of the existence of necessary parties it ought to join them suo motu relying on Peenok v. Hotel Presidential (1983) 4 NCLR 122.
Finally, learned Counsel submitted that the failure of the Respondent and the trial Court to substitute the Estate of the deceased 3rd Defendant for him and the failure to join both the Kwara State Government to this suit is fatal to the just determination of the suit and urged the Court to allow the appeal on the ground that the suit was not properly constructed.
In his reply, learned Counsel for the Respondent submitted that a case is properly constituted when the court is competent, all prerequisites to institute an action in the court are complied with and the action is not statute barred to deny the Court jurisdiction to hear it. For this he cited the case of Seidu v. A.G. Lagos (1986) 2 NWLR (Pt. 21) 165.
That necessary and proper party to a statute party whose interests are at stake in the proceedings and who must be bound by the judgment. See Green v. Green (1987) 7 SCNJ 225; (1987) 3 NWLR (Pt. 61) 480.
That the Respondent complied with the above requirements of the law. That the respondent has nothing to lose or gain by joining either Kwara State Government or Ilorin Local Government if she can get relief without them.
That the issue of non joinder was raised for the first name at the address stage of the proceedings and that it was not a subject of any findings by the lower Court. See Oredola Okeya Trading Co. v. A.G. Kwara (1992) 9 SCNJ 13 at 15, (1992) 7 NWLR (Pt. 254) 412.
That the issue is uncalled for and urged the court to resolve same I favour of the Respondent.
I agree with the submission of learned Counsel for the Respondent that necessary parties to a suit are parties whose interests are at stake in the proceeding and who must be bound by the judgment. See Green v. Green (1987) 7 SCNJ 225, (1987) 3 NLWR (Pt. 61) 480.
This action involves interest in land which legally survives the death of a party. This is true it is also a fact that the 3rd Defendant who claims the land as belonging to him just as the Respondent, died during the pendency of the action but was not substituted. It is clear that his estate will be bound by the outcome of the case. In any event the Respondent considered him a necessary party that is why he was joined in the first instance.
The same thing cannot be said about the non joinder of Kwara State Government and Ilorin Local Government on account of the certificate of occupancy.
I am of the view that for the purpose of the Respondent the action is properly constituted having regards to the reliefs claimed.
It would have been different if the Respondent has sought a declaration that the certificates of occupancy issued to the 3rd Defendant are null void. Since she is not asking for that, the Court cannot pronounce on it – the certificate continue to exist and be presumed valid until set aside and it is not the business of the appellants to say what the respondent ought to have sought by way of relief or other wise neither is it the duty of this court to deal with a different case from what the parties presented for adjudication.
However, I do not agree with learned Counsel for the respondent that the issue cannot be raised in this court because it was firs raised in the address of counsel and that the lower court made no findings on it. That is no reason why learned counsel for the appellants cannot raise the matter here. From the facts of the case, the matter could not have been raised earlier than at address stage. That apart, the issue of competency of an action is an issue of jurisdiction that can be raised at any stage.
On the whole, it is my considered view that the appeal succeeds and is hereby allowed. The judgment of the Kwara State High Court of Justice in suit No. KWS/299/94 delivered on 17th February, 1998 by Hon. Justice J.A. Ibiwoye is hereby set aside. In its place there shall be substituted the order of dismissing suit No. KWS/299/94.
It is is further ordered that he Respondent pays to the Appellants the sum of N3,000.00 by way of costs.
Appeal allowed.
Other Citations: (2000)LCN/0710(CA)