➥ CASE SUMMARY OF:
CSP L.L. Anagbado v. Alhaji Idi Faruk (SC.496/2016, 6 July 2018)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Documents made while suit is pending;
Evidence.
➥ CASE FACT/HISTORY
The property in dispute or the subject matter of this suit is no.17B Degel 2 Anguwan Rimi, Kaduna. It forms part of the large expanse of property belonging to the Federal Government under the supervision of the Federal Ministry of Works and Housing situate at No.17, Degel 2 Anguwan Rimi, Kaduna. In 1992, the respondent applied for allocation of a piece of land from the Federal Government through the Federal Ministry of Works and Housing. By an offer of leasehold interest dated 1st day of September, 1997, the Federal Government through the Federal Ministry of Works and Housing, offered the respondent leasehold interest in the plot of land which is carved out from the property of the Federal Government situate at No.17 Degel 2, Anguwan Rimi, Kaduna, under certain terms and conditions including the payment of premium and annual grounds rents in the sum of ₦15,000 and ₦500 respectively which the respondent accepted and complied with. The appellant as an occupier of the property situate at No.17 Degel 2, Anguwan Rimi, took advantage of the policy of alienation of the Federal Government properties for sitting occupier applied to the Implementation Committee of the Alienation of the Federal Government landed properties for allocation of the property being occupied by him. By a letter of offer of leasehold interest dated 29/6/10, the appellant was allocated and granted lease in respect of the developed structures being occupied by him as a sitting tenant which consists of 3 bedroom detached bungalow including 3 bedroom bungalow boys quarters and a garage as clearly spelt out in the letter of offer. When the respondent took possession of the carved out plot allocated to him being No.17B Degel 2, Anguwan Rimi, Kaduna and developed a structure therein, the appellant resisted and insisted that the allocation made to him is inclusive of the carved out plot allocated to the respondent. The respondent through a letter dated 20/12/10 sought for clarification as to the validity of the allocation of the carved out plot made to him and the Implementation Committee of the White Paper on the Commission of Inquiry into the alienation of the Federal Government landed property, confirmed the alienation allocation of the said carved out plot i.e No. 17B Degel 2, Anguwan Rimi to the respondent, via a letter dated 23/12/10. In spite of the above, the appellant did not allow the respondent free access to the plot of land allocated to the respondent as carved out, hence the respondent instituted an action at the High Court of Justice, Kaduna State (the Trial Court). At the conclusion of the trial, the learned trial judge entered judgment in favour of the respondent.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division, delivered on the 18th day of March, 2011 which affirmed the judgment of the trial Court, the High Court of Justice, Kaduna State delivered on 30th September, 2013.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the lower Court was justified in affirming the decision of the trial Court as it relates the admissibility of and probative value placed on title documents tendered by the respondent and admitted as Exhibits P1 to P8 in proof of the claim of the respondent to title in the disputed property?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANT COUNSEL DID NOT RAISE ANY OBJECTION TO THE ADMISSIBILITY OF THE DOCUMENTS AT THE TRIAL COURTS
‘When these documents were tendered, if I may repeat, the counsel of the appellant did not raise any objection of all the documents except Exhibit 2, the Plaintiffs Acceptance Letter which the learned appellant’s counsel stated was not certified. The trial Court then proceeded to admit all the exhibits listed above and marked them as Exhibits P1 to P8. In short, the trial Court admitted all the documentary exhibits except the acceptance letter. The learned counsel for the respondent is now challenging the admission of all the exhibits by the trial Court on the ground that such documents being public documents, according to him, were inadmissible in evidence because, being public documents, they were supposed to be certified, but were not so certified. The law is trite and well settled too, that if party fails to raise objection to the admissibility of a document tendered by an opposite party, the person/party who fails to object to the admission of such document, can not later raise the issue of admission of the document by the trial Court at the appellate Court. See Alade v. Olukade (1976) 2 SC 183 at 119; Raimi v. Akintoye (1986) 3 NWLR (pt.26) 97. The doctrine of estoppel by conduct is even applicable on that.’
‘The appellant is therefore estopped from raising the issue of admissibility of the exhibits since when the documents were tendered at the trial Court, no objection on their admissibility was raised by the appellant/defendant.’
SOME OF THE DOCUMENTS DID NOT REQUIRE CERTIFICATION
‘This brings me to the point raised by the appellant regarding the non certification of the documents which are photocopies or secondary evidence. As rightly found by the lower Court, looking at Exhibits P1, P3, and P5, it is not doubtful that they are documents made by the respondent. Exhibit P1 is a letter or application made by the respondent/plaintiff to the ministry, applying for the allocation of the plot in dispute, while Exhibit P3 represents the plaintiffs/respondent’s letter dated 6/10/97 accepting the allocation of the said plot. Exhibit P5 is also an application authored by the plaintiff/respondent. These documents exhibited or tendered by the plaintiff/respondent, emanated from him. To my mind even though photocopies, they do not require any certification since they are not public documents requiring certification but are rather private documents which in law, do not require any certification since they are correspondences between the plaintiff/respondent and government officials or agencies.’
‘I must reiterate here that Exhibits P1, P3 and P5 constitute documents authored or written by the respondent and to my mind those exhibits are private documents by virtue of the provisions of Section 103 of the Evidence Act and therefore though photocopies, they do not require any certification. With regard to Exhibits P2, P4, P6 and P7 such document are surely public documents within the meaning or definition by Section 102(a) (1) and (2) of the Evidence Act, since they were original documents executed or made by public officers or public agency while carrying out official act. Such documents being public document do not also therefore require any certification. See PDP v. INEC (2014) 17 NWLR (pt.1437) 525 at 563; Invest Ltd v. Witt and Bush Ltd (2011) 8 NWLR (pt. 1250) 500 at 527. It is my view that Exhibits P1 to P7 are admissible in law and the trial Court rightly admitted them in evidence and acted on them. The lower Court on the other hand also rightly affirmed the trial Court’s admission of same and its finding on them.’]
.
.
↪️ II. Whether the lower Court was right in affirming the decision of the trial Court which granted the reliefs sought by the respondent and dismissed the counter claim of the appellant having regard to the totality of the evidence(oral/documentary led by the parties) ?
RESOLUTION:
[EXHIBITS RELIED BY THE APPELLANT WERE PROCURED AFTER THE INSTITUTION OF THE ACTION THUS INADMISSIBLE
‘Now, closely looking at Exhibits D1, D2, D3 which were relied on by the appellant in defence of the suit and in proof of his counter claim, there is no doubt that the said exhibits were made or procured after the suit was instituted at the trial Court by the plaintiff/respondent or when the suit was pending at the trial Court. The trial Court, in my view, was correct in taking them to be inadmissible in view of the fact that they were manufactured, procured, produced or made in anticipation of the case pending in Court as at the time they were made. The law is trite, that evidence procured during the pendency or in anticipation of a case is not admissible in law. See Abdullahi v. Hashidu (1999) 4 NWLR (pt. 600) 638 at 645; Anyanwu v. Uzowuaka (2009)13 NWLR (pt.1159) 445 at 476.’
‘In this instant case, the trial Court had carefully considered the documents produced by the plaintiff/respondent, namely Exhibits P1-P8 and also compared or weighed along side them with Exhibits D2 and D3 which are the documents of title produced, tendered and relied on by the defendant, (now appellant) to contest the plaintiffs/respondent’s claim. After analysing the entire documentary evidence and evaluating them, the Court found thus; inter alia “Exhibit P6 affirmed the allocation of the land to the respondent. It is to be noted that Exhibits D2 and D3 were procured at the time the appellant had instituted the action against the respondent before the lower Court. Are Exhibits D2 and D3 of any evidential value? The law is settled, documents made or produced at a time an action is pending before a Court of law by an interested party can not be of any evidential value in same matter that is pending. See Abdullahi v. Hashidu (1999) 4 NWLR (pt. 600) 638 @ 646 wherein it was held that:- “The next issue is as to the status of Exhs JJ and KK. There is no doubt that when these documents were made, pleading have been filed and served. Therefore they were made at the time of the proceedings of the case. Exh M2 is a document which on its face value appears to be governments expression of its acceptance of the recommendation of the judicial commission of inquiry which indicted the 1st Respondent. Exhs JJ and KK which on their face seek to explain the Federal Government’s position on M2 were obviously wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents…” See also Asuquo v. Asuquo (2009) 16 NWLR (pt.1167) 225 at 1252.”’]
.
.
.
✓ DECISION:
‘On the whole, I adjudge this appeal to be devoid of merit. It is accordingly dismissed. The counter-claim is equally dismissed for being lacking in substance. Costs follow events. I award costs of ₦200,000 only against the appellant in favour of the respondent. Appeal and counter claim dismissed.’
➥ FURTHER DICTA:
⦿ EVIDENCE PROCURED DURING PENDENCY OF A CASE IS NOT ADMISSIBLE
The law is trite, that evidence procured during the pendency or in anticipation of a case is not admissible in law. See Abdullahi v. Hashidu (1999) 4 NWLR (pt. 600) 638 at 645; Anyanwu v. Uzowuaka (2009)13 NWLR (pt.1159) 445 at 476. — A. Sanusi JSC.
⦿ FIVE WAYS IN WHICH TITLE TO LAND CAN BE PROVED
It has for long been a settled law, that claim of title to a land can be established in any of the following five ways or modes, namely:- (i) By traditional evidence, or (ii) By production of documents of title (iii) By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner, (iv). By acts of long possession and enjoyment of the land; and (v). By proof of possession of connected or adjacent land and in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See Idundun v. Okumagba (1976) 9-10 SC 227. In an effort to prove title to land, the plaintiff always has the onus to prove his title in any or more of the above mentioned ways and to prove acts of ownership sufficient enough to warrant the inference that he as the claimant, is the exclusive owner of the land claimed. See Nwabisi v. Idigo (1957) SCNJ 76. The plaintiff or claimant of title must satisfy the Court that he is entitled on the evidence adduced by him to obtain such declaration of title. In other words, the claimant or plaintiff must rely on the strength of his own case and NOT to rely the weakness of the defendant’s case. See Itauma v. Akpe-Ime (2000) 7 SC (pt. II) 24. — A. Sanusi JSC.
⦿ A PIECE OF EVIDENCE CANNOT BE RENDERED INADMISSIBLE BY THE LAW OF A STATE WHEN SAME IS ADMISSIBLE UNDER THE EVIDENCE ACT; REGISTRABLE INSTRUMENT
The Appellant had made an issue of whether Exhibit P2, the letter of offer issued to the Respondent, was a registrable document which must be previously registered under the Kaduna State Lands Registration Law Cap 85 Laws of Kaduna State, 1991 before it would be admissible in evidence. Section 15 of the said Law, Cap, 85, provides: “No instruments 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.” The purport of this law, as argued by the Appellant, is that a registrable land instrument, which though is a material and relevant piece of evidence under the Evidence Act, 2011 which has not been so registered under the Law Cap 85 is not admissible in evidence in any Court of Law. The argument neither impresses nor convinces me. The Law Cap. 85 of Kaduna State (Section 15 thereof), in so far as it purports to render inadmissible any material and relevant piece of evidence that is admissible in evidence under the Evidence Act, 2011, is to that extent inconsistent with the Evidence Act, enacted by the National Assembly pursuant to the powers vested in it by Section 4(2) of the Constitution and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. Evidence is Item 23 in the Exclusive Legislative List. I am of the firm view that, in view of Section 4(5) of the Constitution read with Section 4(2) and Item 23 of the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, in the event of Section 15 of the Law Cap. 85 of Kaduna State being in conflict or inconsistent with any provisions of the Evidence Act, the provisions of the Evidence Act shall prevail. The sum total of all I am saying, on this issue, is that Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any law enacted by the House of Assembly of any State. — E. Eko JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Amiru Sanusi, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Alex Ejesieme.
⦿ FOR THE RESPONDENT(S)
O.I. Habeeb.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
