Vihishima Igbum V. Alhaji Baba Nyarinya & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.C.A. 

This is an appeal against the judgment of Emmanuel Ogbole J., sitting in the High Court of Benue State, in the Makurdi Judicial Division in suit No.MD/21/86, wherein he dismissed the appellants’ claim. The judgment was delivered on January 13, 1997. Before the court below, the original plaintiff (Nje Igbum) took out a writ of summons dated 10/3/86 against the respondent as defendants claiming the following reliefs:-

“The plaintiff therefore claims:

(a) his right of occupancy from the two defendants;

(b) the ejection of 2nd defendant from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants their servants and agents from further trespass on the said Plot No.744.”

It does appear that at a subsequent date (not shown in the record) pleadings were ordered. The same were filed and exchanged and later amended by each side with the defendants filing yet some five new paragraphs in addition to the amended statement of defence which learned Counsel tagged “Amended paragraphs 10, 11, 16 and 17 of reply to amended statement of claim by 1st and 2nd defendants.” From the amended statement of claim the plaintiff’s claim was slightly amended in his prayer (b) wherein he claimed as follows:-

“The plaintiff there claims jointly and severally:-

(a) His Certificate of Occupancy No.744 from the two defendants.

(b) The ejection of the 2nd defendant, namely Dan Azumi Yinusa from the said Plot No. 744 thereby giving possession back to the plaintiff.

(c) An injunction order restraining the defendants, their servants and agents from further acts of trespass the said. Plot No. 744, Wadata Ward, Makurdi.”

Before the suit was set for hearing, learned Counsel for the plaintiff, on 4/4/90 filed a motion on notice dated same date praying for the substitution of the appellant herein (Vishima Igbum) in place of the original plaintiff on the ground that the latter was killed by unknown assassins on 24/1/90. That motion was moved and granted on 28/5/90. The suit was accordingly heard at the end of which the learned trial Judge delivered a considered judgment dismissing the plaintiffs claim in its entirety. Not satisfied with the judgment, the plaintiff appealed to this court questioning the judgment on five grounds of appeal as contained in the notice of appeal. I shall where the con admits and for ease of understanding refer to the plaintiff as “appellant” and the defendants as “respondents” respectively.

Before this court, parties filed briefs of argument in due compliance with the rules of court. From the five grounds of appeal, learned Counsel for the appellant identified five issues as arising for determination therefrom. Learned Counsel for the respondents, on his part identified three issues for determination. In order to effectively determine the appeal, I shall consider the five issues framed by the appellant more so that the three issues culled out by the respondents will easily be considered within the framework of the appellant’s issues.

Although no attempt was made in the briefs of argument by either learned Counsel for the appellant or the respondent to consider the background facts giving rise to this appeal whether arising out of oversight or inexperience in the art of brief writing, I think it is important to give a resume of the facts of the case especially as the determination of the appeal will turn out principally on the consideration of evidence by the learned trial Judge and the findings of facts he arrived at.

It was the plaintiffs case (now the appellant’s case having been duly substituted for the former) that he had had relapse of illness which forced him to seek for treatment at the General Hospital, Lafia, as well as herbalist homes each time there was reoccurrence of the fit. That because he was impecunious, he used to pledge his plot of land at No. 744 Wadata Ward, Makurdi. It was in that respect that on 19/4/81 he pledged his said plot of land to the 1st respondent for the sum of N1,600.00 and handed over to him his Certificate of Occupancy covering the plot. That an agreement was entered into by them to evidence the transaction. It was the appellant’s case that on a date not stated the 1st respondent went to the plot in question (where the original plaintiff was living with his family) and pleaded with plaintiffs wife to surrender the latter’s copy of the agreement under the guise that his copy was destroyed by rain water and that he desired to produce a photocopy of it. The woman refused the request but that as she entered her kitchen to prepare food, the 1st respondent sneaked into her bedroom and made away with the agreement “and some documents.”

It was further the appellant’s case that at a later time the 1st respondent called on the plaintiffs wife and hinted her of plans by the Government of Benue State to revoke all title documents over undeveloped lands within the Makurdi metropolis and that in order to safeguard plaintiff’s interest he was going to build a 4-bedroom house on the pledged plot which he would occupy for four years at the end of which period the whole building would revert to the plaintiff. That the plaintiffs wife conceded to the idea wherein the 1st respondent constructed a 4-bedroom house on the land.

Upon return from treatment, the original plaintiff objected to the development he saw on his land and directed the 1st respondent to demolish the building but to no avail. It was the original plaintiff’s case that four years had since passed but the 1st respondent failed and/or refused to vacate the house. At the end of it all, the learnt that the 1st respondent had sold the land together with the building thereon to the 2nd respondent for a consideration of N20,000.00.

The case for the 1st respondent is that the original plaintiff, on 19/4/81 sold to him his plot of land situate at No. 744, Wadata Ward, Makurdi and an agreement to that effect was signed by them. He denied that the transaction was a pledge and further denied stealing any documents from the original plaintiffs wife or ever deceived her in order to build the house he constructed on the land he purchased.

The first issue for determination identified by the appellant is the following:-

“Whether the transaction between the appellant and the 1st respondent was a pledge or sale”.

In considering the above issue, I shall invariably discuss the first issue identified by the respondents namely “whether, the appellant having founded his claim for return of certificate of occupancy, possession and injunction on pledge of the Plot No. 744 to the 1st respondent did prove that Plot No. 744 was actually pledged to the 1st respondent such as to be entitled to judgment”.

As contained in the appellant’s brief of argument which was written in a rather curt style, learned Counsel stressed that appellant’s case before the court below was based on pledge and not sale of his Plot No. 744, Wadata Ward, Makurdi and that evidence was led to show how on previous occasions the appellant pledged the same piece of land. He further pointed out that evidence was led to prove that the 1st respondent stole the agreement from PW1. Further, he noted that the pledge had been redeemed. He urged this court to hold that the appellant had proved that what transpired between him and 1st respondent was a pledge and not an outright sale.

In reaction, learned Counsel for the respondents submitted that the appellant woefully failed to prove his claim that he pledged his landed property to the 1st respondent. Learned Counsel ran through the evidence led by the appellant before the court below. He noted that PW1 said she, it was, who pledged the plot in question but not her late husband. He submitted that that piece of evidence ran contrary to paragraphs 6 and 7 of the amended statement of claim. He further noted that PW2, who PW1 said was present when she pledged the plot of land to the 1st respondent, denied ever witnessing the transaction or the payment of N1,600.00 to the late original plaintiff. He is of the view that the better part of the evidence of PW2 was hearsay and should be discountenanced. He relied on Oguma v. IBWA (1988) 1 NWLR (Pt. 73) 658 at 669 for so submitting.

Continuing, learned Counsel pointed out that whereas PW 1 said she handed over the certificate of occupancy covering the plot in issue after pledging it, PW3 said categorically that the certificate of occupancy was indeed stolen by the 1st respondent. As regards the evidence led by PW3, learned Counsel submitted that it bordered on the commission of crime and should in the circumstance be proved beyond reasonable doubt. He submitted that the learned trial Judge was right in referring to the evidence of PW3 as, “a concocted story.” He finally submitted on this issue that the appellant had failed to prove title to the plot of land in issue.

The complaint of the appellant under this issue largely turns on the finding of fact made by the learned trial Judge. The appellant is of the view that given the evidence on record he had proved the pledge he averred in his amended statement of claim and that in any case he had proved that the pledge has long been redeemed.

PW1 was the wife of the late original plaintiff. In an attempt to prove the fact of pledge, she gave evidence inter alia as follows:”

“I live at Wadata, Makurdi. I am a farmer. I know the 1st defendant. I am in the court to testify to the effect that I pledged my compound to the 1st defendant for N1,600.00, I later refunded the money to him and yet he refused to give back my compound. My husband was not well and so I was looking for money to treat him and that was why I pledged my compound to him to get money for the treatment of my husband. The compound is covered by a Certificate of Occupancy. I gave him the original copy before he gave me the money. When I refunded the money to him he still refused to give me back the C. of O.”

The relevant amended statement of claim she sought to prove are paragraphs 2, 4, 5 and 6. They are couched as follows:-

“2. The 1st defendant was the pledgee of Plot No. 744 from plaintiff, the pledger, for a sum of one thousand six hundred naira (N1,600.00) only.

4. The plaintiff was at all material times a sickly person whose habit was to pledge out his plot No. 744 Wadata ward, Makurdi, for certain sums of money to enable him get treatment at a General Hospital, Lafia.
5. Thus, this particular Certificate of Occupancy No. 744, Wadata Ward. Makurdi was formerly pledged out to one Mtsor Adanyi for a sum of one hundred and twenty naira only to enable the plaintiff get treatment at General Hospital, Lafia.
6. So it happened that on the 19th April, 1981, the plaintiff after he had redeemed his Certificate of Occupancy No. 744, Wadata Ward, Makurdi, from Mtsor Adanyi again pledged it to Alhaji Baba Nyarinyamai Kasuwa when he was once again taken sick to enable him treat himself. This time it was for a sum of one thousand, six hundred naira only (N1,600.00)”.

Clearly therefore, whereas in the pleading the appellant alleged that he pledged his piece of land situate at No.744, Wadata Ward, Makurdi, to the 1st respondent, PW1 (his wife) in her evidence not only claimed that the plot is hers but that it was indeed herself who pledged the plot to the said 1st respondent. Clearly therefore, the evidence on record completely betrayed the averment in the amended statement of claim. The evidence absolutely and unequivocally ran counter to the pleading. To make it beyond doubt that it was PW1 who pledged the land to 1st respondent and not the late original plaintiff, PW 1 said under cross-examination as follows:-

“The compound is situated in Wadata, in Makurdi town. I was the one who pledged the compound as my husband was not well. If my husband were alive he would have testified that I was the one who pledged the compound. Kumu Chave, John Adinya, deceased were present when I pledged the compound. Kumu Chave is in court. Late John Adinya was the one who wrote the agreement.”

Clearly therefore PW 1 not only contended that the plot of land belonged to her and that she was one who pledged it to the 1st respondent thus claiming adverse title inconsistent with the late original plaintiff’s she also woefully failed to advance the cause of the appellant. To make matters worse, PW1 sought to prove that when she pledged to 1st respondent the plot of land in question PW2 was around and witnessed it. But the evidence of PW2 given under cross-examination only confounded her case the more. Said he inter alia:-

“I was not there when the defendant gave the late Nje N1,600.00. When I returned from work, the late Nje told me that the defendant brought the said money. If PW1 said that I was there when the money was given, it is not true. PW1 only told me that the 1st defendant stole papers “belonging to the compound”. What I told the court was what I heard from PW1 and the late Nje.”

The evidence led in proof of the pledge averred in the amended statement of claim is absolutely unhelpful to the appellant. It only sought to put up a completely new case and therefore new cause of action. On the above premises, the learned trial Judge was absolutely right in holding that the appellant had failed to prove his case.

In paragraphs 10 and 11 of the amended statement of claim the appellant averred as follows:-

“10. The plaintiff’s wife refused to bring her husband’s copy but when the woman went into kitchen to cook the 1st defendant sneaked into her room and removed the said agreement.

11. The plaintiff avers that the 1st defendant was very familiar with his house and knew where he kept his own copy of the agreement.”

In paragraph 9 of the amended statement of defence the respondents denied the allegation of the commission of the crime averred in the said paragraphs 10 and 11 of the amended statement of claim. The paragraph goes as follows:-

“9. The 1st defendant further avers that the averments contained in paragraphs 7, 8, 9, 10 11, 12 and 13 are allegations of fraud and criminal in nature and shall demand the strictest proof of same at the hearing of the suit.”

Clearly an issue has been joined on the theft of the alleged agreement evidencing the pledge and some unspecified documents. The law is trite that where in a civil action there is an allegation of the commission of a crime it must be proved beyond reasonable doubt. See section 138(1) of the Evidence Act. To prove the crime, 1st PW1 said:-

“The 1st defendant instead went and stole the agreement and other documents issued to me by the L.G. from my possession …” (See P. 38 lines 13 and 14 of the record).”

Under cross-examination. 1st PW said inter alia:-

“I am not literate and so I may not be able to identify the C of O. I said 1st defendant stole the agreement and other documents but I did not report the act to the police. I however reported the matter to John Kumun and Vishima Ibu (the present plaintiff). They did not take him to court. Kumu went to him asked him and he admitted that he stole the documents. I went to his house twice to demand for my documents but I did not meet him.”

It should be noted that the other documents allegedly stolen by the 1st respondent remained unknown up to now. Be that as it may, PW3 who said he was in the house and witnessed the stealing gave the following evidence. Viz:-

“On 5/3/86 at about 4 p.m., I went to the house of the plaintiff – Nje Tubum. He was not in. He left his wife named Chabu in the house. When I went there to greet, she went to fetch water and I sat in the round hut. After ten minutes the 1st defendant Alh. Baba Nyariya came.

He told the wife of the plaintiff that he wanted the written agreement and C of O to have the photostat.

The 1st defendant asked the wife to bring out the agreement and of a in that the one they had was drenched by rain. That he needed the original of the C of O and the agreement to photostat. The wife replied that she did not know where he kept it. This discussion was outside the round hut. Later Alh. Baba Nyarinya – 1st defendant came in and found the written agreement and the C of O on the table.

When he saw them, he carried them from the table. Chabu, the wife said that she was not the one who gave the documents to him but that he stole them. I was there and saw things myself.”

Further under cross-examination PW3 said as below quoted at page 45 of the record of appeal:-

“I know the defendant. We always call him “Alhaji”. I know his compound. He sells chairs, standing fans, shoes in Madikpo, Makurdi. Alhaji Baba Nyarinya sold the disputed compound to the 2nd defendant. I was not there when he sold the compound to him but I heard it from Chabu, PW1. I was there when all these things happened. I was sitting in the room when Alh. Baba entered and stole the documents Chabu PW1 was fetching water opposite the house when 1st defendant came. Alh. Baba himself told Chabu that he had found the documents and that he was going to photostat them and return the original. Chabu told him that she was not the one who gave them to him and that he stole them.

What the wife, PW1 said was in my presence and in the presence of the 1st defendant. On the day Alh. came the woman was fetching water and was not in the kitchen cooking. I know the words sneaking into the house,”

What is beyond argument is that whereas the pleadings show that the certificate of occupancy covering the plot of land in issue was handed over to the 1st respondent after the land was pledged (as the respondent contend) PW3 said in his evidence that amongst the documents 1st respondents stole included the certificate of occupancy. 1st PW herself did not say that the certificate of occupancy was among the documents 1st respondent stole. Indeed, even though 1st PW said she had gone to the kitchen to prepare food when 1st respondent stealthily sneaked into her bedroom and stole the documents, PW3 said the 1st PW had indeed gone out to fetch water when the theft was committed. He insisted on what he said inspite of the searching questions learned Counsel worried him with. All these pieces of evidence are given inspite of the fact that 1st PW did not say that PW3 was in her said bedroom when 1st respondent “stole” the documents as PW3 wanted the court to believe. Therefore since PW3 said he actually saw when 1st respondent stole the certificate of occupancy and gave some features of it but the pleadings and the evidence of 1st PW indicate that the certificate of occupancy was handed over to the 1st respondent as early as the date they entered into a transaction, the finding of the learned trial Judge cannot but be correct. The learned trial Judge found as follows:-

5. “There is no corroboration between the evidence of P.W.1, 2, & 3 as to the commission of the theft of the alleged pledged document and Certificate of Occupancy in respect of plot No. 744. P.W.1 Chabu Nje made a wild allegation of theft of the alleged pledge agreement and other documents in respect of the plaintiff but has failed to substantiate it. She made no report to the Police and neither was 1st defendant prosecuted. Evidence of P.W.2 is hearsay. He was only told of what 1st defendant was alleged to have done. Evidence of P.W.3 is a concocted story and has no lots of truth. There was a factual transaction of sale of the said plot belonging to the plaintiff initially, and after the execution of the agreement, documents relating to the property were only handed over to the 1st defendant (Exh. 1 & 3) and he accordingly took possession of the property and subsequently made some development on it by putting up a four bedroom bungalow on it to the knowledge and in the presence of the plaintiff, Mr. Nje Igbum.”

I entirely endorse the finding of fact of the learned trial Judge. Given the contradictory evidence on record, the appellant absolutely failed to prove the theft of the agreement or the unspecified documents.

From the amended statement of claim there is no averment indicating that the amount of N1,600.00 collected from the 1st respondent was refunded so that the pledge would justifiably be held to have been redeemed. However, 1st PW while giving evidence said she had redeemed the pledge, said she under cross-examination:-

“I later refunded the money to him and yet he refused to give back my compound” (See P. 33 lines 6 and 7).”

The above piece of evidence has been adduced when it was not pleaded. The law is settled that where evidence is adduced or attempted to be adduced on facts not pleaded such evidence should not be allowed to be given and where it had been given, it should be discountenanced or expunged. See Emegokwue v. Okadigbo (1973) 4 S.C. 113; Okafor and Others v. Okutiakpe (1973) 2 S.C. 49; Njoku & Others v. Eme and Others (1973) 3 S.C. 293; Onamade v. A.C.S. Ltd. (1997) 1 NWLR (Pt. 480) 123 SC. Even the bare assertion of 1st PW that she had redeemed the pledge over her plot of land ran foul of the pleading since she is not the plaintiff. I am therefore in complete agreement with the learned trial Judge when he found that, “there is no evidence to support the claim of the plaintiff that the N1,600.0 given for the plot allegedly pledged, was refunded to the defendant” (See page 90 lines 6 to 9 of the record). Evidently, the finding of the learned trial Judge at page 90 of the record is absolutely correct. Said he:-

“On the other hand evidence of PW1, PW2 and PW3 is so overwhelming that the transaction between the plaintiff Nje Igbum and the 1st defendant on 19/4/81 could not be any other thing also but sale of the residuary interest of the late Nje Igbum in respect of the Certificate of Occupancy No. 744. In the circumstances, it is my humble view that the transaction on that day 19/4/81 between the late Nje Igbum and the 1st defendant was a sale and not a pledge as claimed by the plaintiff.”

It is clear that the evidence adduced by the appellant failed to address the pleading he filed. In law facts pleaded but not proved by evidence are deemed abandoned. See Ojikutu v. Fella (1954) 14 WACA 628; Olarewaju v. Bamigboye (1987) 3 NWLR (Pt. 60) 353 at 354; Emegokwue v. Okadigbo (1973) 4 SC 113 at 117 – 118; Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34 at 55; Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 NWLR (pt. 390) 379 at 427.

The first issue identified by the appellant is therefore resolved against him and the answer to it is that the transaction between the appellant and the 1st respondent was an outright sale. In the same vein, the first issue identified by the respondents is answered in the negative.

The second issue identified by the appellant is worded thus:”

Whether PW1 wife to the original plaintiff, cannot inherit his property under Tiv native law and custom.”

The above issue arises from the second ground of appeal. While addressing the issue learned Counsel submitted that Tiv native law and custom with respect to inheritance was neither pleaded nor led in evidence. He continued and argued as follows:

“As the wife of the late Nje Igbum, PW1 has the right to describe her late husband’s property as her property and the respondents did not deny that PW1 is the wife of late Nje Igbum.”

He finally submitted that the learned trial Judge was wrong to have relied on a custom that was neither pleaded nor proved.

The respondents have identified no issue corresponding to the above and therefore argued nothing in that respect. But suffice it to say that the pleadings contain nothing about Tiv native law and custom relating to inheritance. Neither is there evidence on record relating to any such native law and custom, Thus the issue of inheritance under Tiv native law and custom was not called to question in the suit before the court below.

The finding of the learned trial Judge under attack can be found at the last paragraph of page 88 of the first two paragraphs of page 89. The finding is reproduced hereunder:-

“But Exh. 1 Certificate of Occupancy No. 744, in respect of the plot in question bears the name of Nje Igbum as the owner and not Chabu Nje. Although Nje Igbum was her husband she has no right to have claimed the plot to be her own when the husband was still alive and also the fact that she is not the right person to inherit her husband according to Tiv custom. In support of this view that she is not the right person to inherit her husband, she herself said in answer to cross-examination, that:

“‘By Tiv custom it is my son that will inherit my husband. The senior brother of my husband will take care of the property or hold the property for the son. If the court gave me the plot, I shall hand over same to Vishima.

In the circumstances, PW1, has no right and could not have pledged her husband’s property in her own name without the consent of her husband.”

Learned Counsel is absolutely correct when he contended that the question of Tiv native law and custom relating to inheritance was not an issue before the court below. Besides, no evidence was led however wrongly relating to Tiv custom on the rights of a surviving wife upon the death of her husband. In the circumstances, the learned trial Judge was wrong in pronouncing that 1st PW was “not the right person to inherit her husband according to Tiv custom.” That positive though innocuous finding notwithstanding, it has no bearing on the overall findings of the learned trial Judge and the ultimate decision he reached in the suit. Whether 1st PW was not, under Tiv native law and custom entitled to inherit the estate of her deceased husband, the fact remains that the appellant had woefully failed to prove the case he himself presented in his pleading relative to the evidence on record. But for the finding of the learned trial Judge under attack it is beyond argument that it is made Obiter as it is not called to question. Hence, the answer to the second question formulated by the appellant will appear to be neither here nor there. It is simply academic as it appears theoretical since the answer to the question will not address any matter indifference between the parties. See Adeyemi v. Opeyori (1976) 9-10 Sc. 31; Eperokun v. Unilag (1986) 4 NWLR (Pt. 34) 162 at 179 Okulate v. Owosanya (2000) 2 NWLR (Pt. 646) 530 at 550.

The third issue identified by the appellant is, “whether Exhibit 3, the sale agreement is a valid document even though it has no jurat.” This issue appears to relate to ground 4 of the grounds of appeal. This issue too was not discussed by the respondents. Learned Counsel submitted that the exhibit is not valid because it bears no jurat and ought therefore, not to have been admitted in evidence. He continued and argued as follows:-

“Exhibit 3 was interpreted in both Hausa and Tiv languages before the parties made their mark. DW1, DW2 and DW3 testified to that effect that Exhibit 3 was read to them and interpreted to them in Hausa and the parties since (sic) non of them understood English. We therefore submit that since this fact of interpretation which was not reflected on Exhibit 3 as required by the law the purported transaction was null and void and of no effect and therefore Exhibit 3 was wrongly admitted in evidence and we urge the course to so hold.”

The issue at hand questions the validity of Exhibit 3 the sale agreement on the ground that it contains no illiterate jurat. In the course of argument however, learned Counsel added another dimension to the document. It is his view that the document is wrongly admitted. In the first place, is the document a valid one? The objection of learned Counsel against the validity of the document has to do with the absence of any illiterate jurat on it. The law requires documents executed by illiterates to comply with the provisions of the Illiterates Protection Act and such similar laws. Thus the writer of a document which creates legal rights between the parties to the document whether one of the parties is an illiterate or both is mandated to so indicate in the document that he did read and explain to the illiterate person in the language he clearly understands the contents of the document and the latter understood and accepted to be bound by it.

Illiterates Protection Act and such similar Laws primarily aim to protect an illiterate by ensuring that he understands the meaning and effect of the document which he is signing. It is thus a shield at the disposal of the illiterate, who, in the con of the act, is understood to be a person ignorant of letters, unlearned or unable to read the document in the language in which it is couched. I however need not delve into the meaning of the word “illiterate” because the issue under consideration requires only an answer to the question whether the appellant is an illiterate. Looking most meticulously through the amended statement of claim before the court below, there is no averment therein to the effect that the appellant is an illiterate. Throughout the evidence led by the appellant, there is nothing to suggest that he is or was indeed an illiterate. The only suggestion that the appellant was an illiterate came from Mr. Ndefo of counsel while objecting to the admission of the document now in question. So the question of illiteracy of the appellant was not an issue at all. In which event the need to incorporate an illiterate jurat in Exhibit 3 did not arise. Evidently, Exhibit 3 is a valid document as there was no need to incorporate in it a jurat.

Learned Counsel contended that the document was wrongly admitted in evidence on the ground that the explanation the writer made to the parties about its purport and effect was not reflected on the document. As I earlier on pointed out, since neither the appellant’s pleading nor the evidence he adduced indicated that he was an illiterate. the need did not arise for a jurat to be incorporated in the document. The invocation of section 2(a) and (b) of the Illiterates Protection Law, Cap 51 of the Laws of Northern Nigeria, 1963, applicable to Benue State therefore did not arise. At the tale end of the argument of learned Counsel he alluded to one vital issue of law. I shall quote him hereunder:-

“Exhibit 3 is also against S.8(i) of the Land Registration Law, Cap 58, Laws of NN since it is not registered.”

If I understand learned Counsel, his submission is that Exhibit 3 being an agreement for the sale of land is a registrable instrument and that not having been registered it offends the clear provisions of section 8(i) of the Land Registration Law of Northern Nigeria, applicable to Benue State and is to that extent rendered void. I entirely agree with learned counsel on the legal effect of non-registration of a registrable instrument where it is intended to prove title. An instrument which is registrable but not registered cannot be pleaded nor tendered or produced in evidence. See Ossai v. Nwajide (1975) 4 SC. 207; Ojugbele v. Olasoji (1982) 4 SC. 31; Akinlola v. Solano (1986) 4 NWLR (pt.24) 589. But that does not mean that it cannot be tendered and admitted to establish evidence of transaction and to prove payment in respect of the land transaction. See Adeniji v. Onagoruwa (2000) 1 NWLR (Pt.639) 1; Dauda v. Bamidele (2000) 9 NWLR (pt.671) 199 at 212.Given the complete failure of the appellant to prove his pleading, the admission in evidence of Exhibit 3 in no way affected his case. I answer issue 3 in the affirmative.

The fourth issue is framed as hereunder reproduced:-

“Whether there was a valid transaction(s) between the appellant and the 1st respondent and the 2nd respondent without the consent of the Governor.”

The above issue has been identified as arising from the 3rd ground of appeal. Related to the issue is the 2nd issue formulated by learned Counsel for the respondent which is:-

“Whether the respondent’s (sic) assertion that the transaction between the 1st respondent and the late plaintiff was one of sale was made out at the trial court, and if it was, whether the sale was vitiated by lack of consent to sell, assuming in all circumstances of his case the issue of consent was relevant.”

Learned Counsel for the appellant submitted on the issue that the transaction between the 1st respondent and the appellant and that between the 1st respondent and the 2nd respondent require as a precondition that the consent of the Governor would first be sought and obtained as a condition for its validity. He noted that DW1 and DW4 said in evidence that the consent of the Governor was not obtained either before or after the transaction. On the above premise therefore, learned Counsel submitted that the learned trial Judge was in error when he held that there was a valid transaction of sale of the disputed plot of land inspite of his earlier finding that the absence of statutory consent of the Governor rendered the sale null and void. He relied on sections 22 and 26 of the Land Use Act, 1978 and the following cases:-

Alase & Ors. v. Olori Ilu & Ors. (1965) NMLR 66; Oredola Okoya Trading Co. Nig. Ltd. v. A-G, Kwara State and Others (1992) 7 NWLR (Pt.254) 417 (1992) 9 SCNJ 13 at 22 and Savannah Bank v. Ajilo (1989) 1 NWLR (pt.97) 305 (1989) 1 SCNJ 159 at 180.

In reaction, learned Counsel for the respondents stressed that the evidence led for the respondents established the fact of the sale transaction and the hand over of the Certificate of Occupancy covering the plot of land in issue as well as the steps taken in order to effect change of ownership. He therefore submitted that the negotiations that culminated in the sale transaction cannot be vitiated by lack of consent of the Governor. He gave his reasons why the lack of consent would not vitiate the transaction to include the following:-

(a) That no evidence was led before the court below to prove that the land in question is situate in an Urban area so as to make the consent of the Governor an inevitable condition to be had.

(b) That the issue of consent being a special defence must be pleaded before it can be relied upon.

He relied on the following cases for so submitting vide:- Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt.73) 746 at 760; NNSL v. Emenike (1987) 4 NWLR (Pt.63) 77 at 85 and Okunola v. Oduala (1987) 4 NWLR (Pt.64) 141 at 149 – 150.

(c) That even if the defence of lack of consent avails the appellant, it was his duty to obtain the consent to assign. He relied on Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1, (1993) 5 SCNJ 151 at 186. He submitted that the appellant cannot rely on his wrongful act to justify an undeserved cause. He cited and relied on Solanke v. Abed (1962) 1 SCNLR 371.

There appears to exist some considerable misconception about the import of S-22 of the Land Use Act, 1978. There are certainly two broad stages culminating into the vesting of title to a purchaser in land transaction. The first stage is the agreement or contract stage. This stages does not require the consent of the Governor under S-22 of the Act. At this stage of entering into a contract for sale of land, no alienation has taken place as envisaged by the said S-22 and therefore the requirement of consent of the Governor does not arise. Up to the point of arriving at a binding contract, no consent of the Governor is required as a legal prerequisite. The second stage involves alienating or transferring the vendor’s right of occupancy and which is done by a conveyance or deed. Because this stage invariably involves the vesting of title in the purchaser, consent of the Governor must, as a legal prerequisite be sought and obtained. Failure to do so will render null and void the whole transaction by virtue of section 26 of the Land Use Act, 1978.

I should perhaps quote extensively the judgment of Uwaifo, JSC. in International ile (Nig.) Ltd. v. Aderemi and 4 Ors. (1999) 8 NWLR (pt.614) 268 at pages 298 to 299 where his Lordship quite admirably, elaborately and clearly discussed the import of sections 22 and 26 of the Act. Said he inter alia:-

“I may here answer briefly an aspect of the argument of the 5th respondent that it was a breach of S-22 of the Act for the appellant to have gone into possession to do some reconstruction of the property and that therefore it cannot rely on it to insist on a contract. I think this is a clear misconception. To permit an act of part performance is simply one modality of contract formation. It does not transfer possession under S-22 of the Act in the sense of alienation. It merely creates a cause for the specific performance of the contract. It must not be presumed that S-22 can operate to do away with the doctrine of part-performance. It cannot, lest it be used as an instrument of fraud which it certainly is not mean for. The transaction under the first stage i.e. the agreement or contract stage does not require the consent of the Governor under S-22 of the Act. This is because when parties enter into a contract for the sale of land, no alienation has taken place as envisaged by the said S-22 which provides.

“22(1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however, without the consent of the Governor first had and obtained.

(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under sub-section (1) of this section may be signified by endorsement thereon”

The position of S-22 of the Act is clearly this. A holder of a right of occupancy may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such an agreement or contract, he does not need the consent of the Governor. He merely operates within the first stage of a “transfer on sale of an estate in land” which stage ends with the formation of a binding contract for a sale constituting an estate contract at best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed culminating in vesting the said right in the ‘purchaser’. He must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S.26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.

I think the distinction between an agreement to alienate land and the instrument by which the alienation takes place was sufficiently drawn by this court in Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt.390) 379 in which the Privy Council case of Denning v. Edwardes (1961) AC. 245 on a similar point was approved. Directing his mind to the issue, Iguh, JSC. observed at pages 435 – 436:

“I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by section 22(1) of the Act from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the Land Use Act does not prohibit a written agreement to transfer or alienate Land. So long as such a written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent. I agree entirely with Chief Williams, SAN, that section 22(1) prohibits transactions or instruments whereby the holder of statutory right of occupancy purports to alienate as a complete action, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, the absence of the relevant consent of the Governor first and obtained notwithstanding:’ (Italics mine).

The issue at hand, questions the validity of the transactions contracted between the appellant and the 1st respondent and that between the 1st respondent and the 2nd respondent on the ground that the consent of the Governor was not sought and obtained. The legal position discussed above is clear that no consent of the Governor is required at the point of negotiations and transactions leading to a binding contract of sale. Thus, the transactions in issue are valid and parties thereto needed no consent of the Governor to arrive at valid agreement for the sale of the landed property. It must be noted that the issue as framed by the appellant is not questioning alienation or transferring title of the landed property in question but the “transactions between the appellant and the 1st respondent and the 1st respondent and the 2nd respondent without the consent of the Governor.” The stage referred to by the appellant understandably needed no consent of the Governor at all.

I further think that learned Counsel for the respondent was right when he submitted that there is no evidence showing that the land in question is situate in an Urban Area. I have gone through the evidence on record but am unable to find any indication that the plot of land in issue falls within an area designated as “urban”. Therefore the question of seeking for the consent of the Governor, even if the stage was reached, did not arise. In any case, even if the question of seeking for the Governor’s consent had arisen, it was the responsibility of the appellant to apply for it. Where he failed to do that, he will not be allowed to rely on his default to seek to nullify the transaction from which he derived monetary benefit. My answer to this issue is that there was indeed valid transaction between the appellant and the 1st respondent and between the 1st respondent and the 2nd respondent respectively even though the consent of the Governor was not obtained.

The last issue framed by learned Counsel for the appellant is:-

“Whether the appellant was caught up by the doctrine of laches and acquiescence when the trial court had earlier declared the entire transaction as null and void.”

The above issue is a variant of the third issue identified by the respondents and both will be considered together. Learned Counsel for the appellant submitted in his brief that the doctrine of laches and acquiescence in no way applied to the case at hand. He stressed that the appellant never neglected in asserting his right over the piece of land in issue. He therefore submitted that; “the learned trial Judge misdirected himself in law when he held that even though the sale was null and void the appellant was caught up by the doctrine of laches and acquiescence.

On his part, learned Counsel for the respondents submitted in his brief of argument that the learned trial Judge was right in applying the doctrine of laches and acquiescence as the same avails his clients. He cited the following cases in support:-

Yusuf v. Dada (1990) 4 NWLR (Pt.146) 657 (1990) 7 SCNJ 68 at 88 and Sosan v. Ademuyiwa (1986) 3 NWLR (pt.27) 241; (1986) 5 SC. 152 at 178 – 179. He urged this court to dismiss the appeal.

I should think that attention must be drawn to the conceptual meaning of the doctrine of laches and acquiescence. Laches and acquiescence as an equitable defence operates to bar a person who has slept over his right for a long period of time from asserting his said right against an innocent party. It derives its origin from the equitable maxim that “equity aids the vigilant and not the indolent.” It obviously discourages stale demands in the interest of peace and orderly society and is thus routed in public policy. Where the doctrine is successfully invoked the original or true owner of the property is made to lose his title over the property. But because the doctrine is only employed as a shield, the party that relies on it cannot get a declaration of title in his favour merely because of the reliance he placed on it. see Maji v. Shaft (1965) NMLR 33; Odutola v. Akande (1960) SCNLR 282, (1960) 5 FSC 142.

Laches and acquiescence it must be stressed does not consist simply in mere lapse of time. Also important is that it must be coupled with the existence of circumstances which make it inequitable for the contesting party to enforce the claim. See Kaiyaoja & On v. Egunla (1974) 1 All NLR 426. Such circumstances include a situation in which there is considerable change in the condition of the land or where expenses had been incurred in developing the land.

But more important is that it is of the essence of the doctrine of laches and acquiescence that the party pleading the defence did not know that the property he improved belongs to another. Of most serious note however is that there cannot be declaration of title in the favour of he who successfully established the plea of laches and acquiescence; Oshodi v. Imoru (1936) WACA 93.

With the above background one can safely consider the complaint of the appellant. The complaint, if I may repeat, is that the learned trial Judge was wrong in his finding that the doctrine of laches and acquiescence was successfully established by the respondent. The doctrine it appears, was employed by the learned trial Judge in two situations. The first situation was when he was considering the doctrine in relation to the reliefs seeking for ejection and injunction.

Let me quote the learned trial Judge at pages 91 to 92 of the record:-

“Issue No. D. Plea of Laches & Acquiescence by 2nd defendant. There is evidence to show that the 1st defendant sold the plot in question which he bought from the plaintiff, to the 2nd defendant for N7,600. The 2nd defendant having purchased the plot put up conditional buildings. All these while the plaintiff and his wife stood watching the both 15th and 2nd defendants put up buildings on the disputed plot without any protest to anybody. There is evidence that the plaintiff was even one of the labourers used to help in the constructions of the building at different intervals. There is also evidence that the plaintiff was employed as a guard for security of the building materials kept at the premises. I have considered the evidence adduced by both parties but of the view that the plaintiff has no reason to later complain by making frivolous allegations of pledge of the property, and accusing the 1st defendant of stealing documents in respect of the property. Against this background, the 2nd defendant has pleaded the doctrine of laches & acquiescence and urged the court to avail him of same, and dismiss the claim of ejection and injunction by the plaintiff.

Laches is defined at p. 787 of Black’s Dictionary 5th Ed. As “doctrine of Laches”, is based upon maxim that equity aids the vigilant and not the one who slumber on their rights.

It is defined as negligent to assert right or claim which, taken together with lapses of time and other circumstances causing prejudice to adverts party, operates as bar in court of equity”.

Acquiescence is defined at p. 22 of the same Black’s Law Dictionary thus:

“Conduct recognising the existence of a transaction, and intended, in some extent at least to carry the transaction, or permit it to be carried into effect. It is some act, not deliberately intended to ratify a former transaction as existing and intended, in some extent at least, to carry it into effect and to obtain or claim the benefits resulting from it and thus differs from confirmation which implies a deliberate act, intended to renew and ratify a transaction known to be voidable”. Having considered the evidence for the defence (and the circumstances of this case), I am of the view that the 2nd defendant has sufficiently proved the doctrine of laches & acquiescence and I hold that same are applicable, to this case. Therefore the claim of ejection and injunction having not being proved cannot stand, but is hereby dismissed.”

Learned trial Judge from the above finding appeared to have used the doctrine to refuse the appellant the reliefs of ejection and injunction which he sought. To that extent therefore, I am of the view that his finding cannot be faulted. He gave quite cogent reasons based on the evidence on record why the defence succeeded. I find no reason to disturb the above finding.

The second situation where the learned trial Judge employed the doctrine to find for the respondents can be found at pages 95 to 96 of the record. The learned trial Judge ruled as follows:-

10. “However, there was no plea of doctrine of laches and acquiescence before the trial court as a defence. Since there was no consent of the Governor before the same was made the sale of the said plot is rendered null & void pursuant to SS.22 & 26 of the Land Use Act. However, while I concede that the sale of the said plot, basically, has been rendered void ab initio for failure to first obtain the consent of the Governor, the conduct of the plaintiff has shown a lot of lapses over his right.

That is to say after he had sold his plot unlawfully to the 1st defendant, he allowed himself to be used among the labourers to help in the work of construction of the building. He also allowed himself to be employed as a guard for security of the building materials on the premises.

To his knowledge, the 1st defendant put in tenants and later sold the premises to the 2nd defendant who also built another four bedroom bungalow in his presence and to his face without any protest. But after allowing the plot to be developed, he turned round to claim it. By this attitude, it appears to me that the plaintiff wants to bite his cake and have it.

Although the transaction of sale of the plot in dispute has been rendered null and void by virtue of sections 22 and 26 of the Act, since the doctrine of laches and acquiescence has been successfully pleaded and proved against the plaintiff, he is not entitled to this claim.

It would be inequitable to allow him to unjustly benefit from the sweat of the defendants on the alter of technicality. It is trite that equity does not aid the indolent but the vigilant, and he who goes to equity must go with clean hands. Indeed, it is my view that this claim was not brought in good faith. It ought to be dismissed and it is accordingly dismissed.”

From the above, there is no doubting that the learned trial Judge used the doctrine of laches and acquiescence to declare that the appellant had failed to prove his case. The doctrine in my view was wrongly invoked in this situation. Indeed, the finding that “transaction of sale”, is null and void, is in my view wrong having regard to my finding in respect of issue No. 3. The finding of the learned trial Judge that “since there was no consent of the Governor before the sale was made the sale of the said plot is rendered null and void pursuant to SS-22 & 26 of the Land Use Act”, is absolutely wrong. Unquestionably, the learned trial Judge was discussing about “the transaction sale.” That is the first stage in which the agreement or contract was negotiated. As I have said earlier on in this judgment that stage needed no consent of the Governor. See International ile Industries (Nig.) Ltd. v. Aderemi (supra) In as much as the discussion did not relate to the second stage in which alienation or transferring title was involved the need for the Governor’s consent did not arise and the agreement remained valid and enforceable. It was in no way rendered null and void as found by the learned trial Judge.

In the same vein, the invocation of the doctrine of laches and acquiescence by the learned trial Judge which was neither pleaded or solicited is uncalled for. It was wrongly applied to save the respondents from the consequences of the wrong finding that consent of the Governor was required at the agreement or contract stage in relation to the land in issue. I accordingly answer the 5th issue in the negative. The appellant had failed in four out of the five issues identified by him for determination. Grounds 1, 2, 3 & 4 of the grounds of appeal to which the issues are related understandably also fail. The appellant partially succeeds in the 5th issue which related to ground 6 of the grounds of appeal. The success however does nothing to save the appeal. On the whole, the appeal fails. It is accordingly dismissed with costs which I assess at N2,000.00 in the favour of the respondents.

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Other Citations: (2000)LCN/0907(CA)