➥ CASE SUMMARY OF:
Jinadu Ajao & Ors. v Bello Adigun (1993) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – SC/8/1989
➥ JUDGEMENT DELIVERED ON:
Friday, 5th March 1993
➥ AREA(S) OF LAW
Registration of instrument;
Trial de novo;
Locus in quo.
➥ PRINCIPLES OF LAW
⦿ AN INSTRUMENT MUST BE CONFERRING AN INTEREST
The definition of “instrument” for the purpose of Land Instrument Registration Law is very clear. There must be a party within the meaning of the Law called or regarded as “grantor” who “confers, transfers, limits, charges or extinguishes in favour or another” “also called and known within the same Law as “grantee”. — Belgore, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Kehinde Sofola, S.A.N.
⦿ FOR THE RESPONDENT
Chief M. Esan
➥ CASE FACT/HISTORY
The appellants were plaintiffs before the. High Court of Oyo State sitting at Ogbomosho and claimed against the respondent as defendant, damages for trespass to a piece of land at Ajeja (Adeja). Otafa, Ogbomosho and perpetual injunction to prevent further trespass on the same land by respondent. The appellants were suing on behalf of themselves and Alasa family. At the end of all evidence after the pleadings by the parties, trial judge dismissed the appellants’ case holding that they failed to prove their case.
An appeal was thereupon lodged before Court of Appeal Ibadan Branch, which in a considered judgment allowed the appeal in part by holding that trial judge erred in rejecting in evidence a document, marked “Exhibit A rejected”, being a document setting out the holdings of each party after a previous case between the other parties on adjoining land. The document seems to explain the portion of a wider land perhaps including part or the whole of the land now in dispute.
The Court of Appeal ordered a trial de novo. It is against this now that the Appellant has appealed before this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether exhibit A is a registrable instrument?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT “EXHIBIT A” DOES NOT TRANSFER ANY INTEREST, SO IS NOT A REGISTRABLE INSTRUMENT
“Exhibit A rejected” does not pretend to confer or transfer or limit any right or extinguish any right in favour of anybody. All it did was to define exactly the purported existing rights of each family in the larger land area including the one previously in dispute and decided upon by a court of competent jurisdiction so as to ”avoid any land dispute” between the families. The document did not Purport or pretend to show any of the families as surrendering or conceding any right it had, rather it spelt out the existing rights of each family. This document is completely out of the ambit of section 2 Land Instrument Registration Law and It is not, caught by section 16 of the same Law for it to be rejected in evidence.”
B. THAT DIFFERENT VERDICT WOULD HAVE BEEN REACHED IF THE DOCUMENT WAS ADMITTED
“Had “Exhibit A rejected” been admitted in evidence by trial court, could that court with certainty be returning the same verdict? The document was made so as to preserve peace between the two families, Alasa and Alapa and set out for the future generations what they believed to be their respective holdings on the large piece of land, not that any of them was conceding anything. It is a very important document and its import on final decision in the trial court no doubt would have been of great significance. The rejection of the document was in error as it is not “an instrument” within the meaning of section 2 Land Instrument Registration Law of Oyo State. The document confers no right extinguishes no right; nor was it transferring any right or obligation but it merely restates what the parties believed was the existing right of the parties (Bamidele Elegbe v Jacob Babalola (1986) All N.L.R. 337,350,351, Asani Taiwo & Ors, v. Adamo Akinwumi & Ors. (1975) All N.L.R. 202,229,230).”
C. ORDERING A TRIAL DE NOVO WAS THE PROPER THING TO DO
“As it is impossible to surmise here what effect it would have had on the final fate of the case the only reasonable and just decision by the appellate court was to order trial de novo. That has been the only just thing to remedy the unfortunate error of learned trial judge in rejecting the document.”
II. Whether Court of Appeal was right to hold that trial court should have granted application to visit locus in quo?
RULING: IN RESPONDENT’S FAVOUR.
A. DESCRIPTION WAS CONFUSING; TRIAL COURT SHOULD HAVE VISITED LOCUS IN QUO
“Trial judge, without visiting the locus in quo, employed just as the witnesses did, the description “right side” and “left side” This is unfortunate. The language of the court must always follow the technical survey descriptions. The cardinal points of description in ordinance survey are the directions, that Is to say, North, South, East and West including points between them e.g., North-East, North-North East, South-South-West and so forth. The use of description such as “to the right” or “to the left” or up or down” are not only confusing they are incompatible with proper decision making to manifest justice In tried cases In court. It is true that some parties are in the habit of these confusing descriptions, the court may understand if starting point and ending points are included in such descriptions. But right in a void as to starting point and ending point locations are bluntly in the form of “[o the right’ or “to the left”. The court should not only accede to application for visit to locus in quo, ft should do so suo motu. It is in the discretion of the court to accede to an application to visit the scene but such discretion should be exercised judicially and must be acceded to If only so doing will give certainty to the land the parties refer to. Failure to visit the locus in quo in the face of confusing descriptions ought to have prompted learned trial judge to undertake the visit. Court of Appeal was therefore perfectly right to have frowned on the failure of trial judge to grant the application.”
“In the final result, I, for the foregoing reasons, find no reason to interfere with the judgment of the Court of Appeal and dismiss this appeal with N1,000.00 costs to the respondent against the appellants.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
✓ section 2 Land Instrument Registration Law of Oyo State wherein it is provided as definition of registrable instrument as follows: “2 …..document affecting land in the state whereby one party (herein after called the grantor) confers, transfers, limits, charges, or extinguishes in favour of another party (hereinafter called the grantee) any right of title to or interest in land in the state and includes – (a) an estate contract; (b) a certificate of purchase; (c) a power of attorney under which any instrument may be executed; (d) a deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which section 27 of the Trustee Law extends (cap. 128), but does not include a will.”
✓ section 16 Land Instrument Registration Law (supra) which states: “16. No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3: Provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)