⦿ CASE SUMMARY OF:
S. O. Nwabuoku v. Ottih P. N. (1961) – FSC
by PipAr Chima
Federal Supreme Court
⦿ NOTABLE DICTA
S. O. Nwabuoku
Ottih P. N.
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
The Appellant entered into an agreement with the respondent which document reads as:
I, Stephen Nwabuoku of Ibo, resident at Tiko, hereby to-day mortgage to Mr. P. N. Ottih of Victoria, my house on Botanical Road, Half Mile, New Town Road, Victoria on the land of Mr. Roohm for the sum of £120-1s-0d (One hundred and twenty pounds, one shilling) which I received from him since 24th June, 1955.
Mr. P.N. Ottih is hereby to-day authorised to collect rents from the house and have full control of the said house until the amount which I, Mr. Nwabuoku is owing him is fully refunded.
On no account will this said house be sold or mortgaged to another person without first.settling fully with Mr. P. N. Ottih.”
This is an appeal against the judgment of Sanisbury, J. sitting in the Southern Cameroons, dismissing the plaintiff’s claim for an account of the rent collected by the defendant from June 1955 to July 1960, at £7 per month as the mortgagee of a property known as 143 Botanical Garden, Victoria, Southern Cameroons. Plaintiff also claimed to have payment of the amount found due to him on the taking of the account. In default of such account the plaintiff claimed that the amount of £423-10s-0d had been so collected during the period and that he was entitled to the sum of £303-9s-0d after a deduction of the mortgage debt of £120-1s-0d. An injunction to restrain the defendant from collecting further rents on the property was also sought.
The plaintiff, however, was allowed to give evidence concerning the loan and after the close of his case, the defendant’s Counsel submitted that the document, Exhibit 1, was inadmissible in evidence because it did not comply with section 15 of the Lands Registration Ordinance, which stated that a document affecting land, unless it was registered, shall not be pleaded or given in evidence. He further submitted that the oral evidence given by the plaintiff about the document, Exhibit 1, must be excluded, as oral evidence of a document which is in writing is inadmissible.
The learned Judge found that the document, Exhibit 1, was an instrument within section 15 of the Land Registration Ordinance, and as it was not registered it was inadmissible and the Claim failed.
From this judgment the plaintiff has appealed to this Court.
⦿ ISSUE(S) & RESOLUTION
1. Whether the Exhibit 1 is a registrable land instrument and hence inadmissible for non-registration?
i. It is clear from his judgment that the learned trial Judge gave no consideration whatever to the appellant’s evidence before him; his evidence was not at any time rebutted by the defendant who did not go in the witness box to give evidence. The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the respondent was in terms of his writ. In the absence of any evidence of rebuttal the appellant was entitled to judgment, and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent’s case.
ii. The Statement of Defence filed by the respondent disclosed that the transaction was a friendly loan and it would appear that it was not in the con-templation of the parties to be bound by English law, but oral evidence of the transaction was available notwithstanding the subsequent document. If therefore any document like Exhibit 1 was given by one party, it would be no more than an acknowledgement of the loan and this does not come within the definition of “instrument” to be registered to satisfy section 15 of the Lands Registration Ordinance in order to render it admissible in evidence.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Ademola C.J.F
It is ordered (1) that an account be taken of rents collected on the premises by the defendant as from June 1955 to the date of this judgment; (2) that the defendant be restrained and is hereby restrained from further collection of rents on the property; (3) that if the account shows any amount over and above the sum of £120-1s-0d which is the amount lent, it should be paid over to the plaintiff after the defendant had deducted the amount he had spent on the property for repairs, etc.
There will be costs in favour of the appellant assessed at 30 guineas in the Court below, and in this Court costs assessed at 25 guineas.
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
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