In The Court of Appeal

(Port Harcourt Judicial Division)

On Thursday, the 15th day of April, 2010

Suit No: CA/PH/67/2006

 

Before Their Lordships

 

SULEIMAN GALADIMA (OFR)                                                                 ....... Justice, Court of Appeal

ISTIFANUS THOMAS                                                                                ....... Justice, Court of Appeal

EJEMBI EKO                                                                                              ....... Justice, Court of Appeal

 

 Between

 

CHIEF SUNDAY N.A. UZOR (Suing by his Attorney, Mr. Solomon Iwebuzor)                              Appellants

 

 And

 

1. DELTA FREEZE NIG. LTD 
2. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY. 
3. THE HON. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, RIVERS STATE.         Respondents

 

 

RATIO DECIDENDI

1. WORDS AND PHRASES - "ABANDONED PROPERTY": Meaning of the phrase "Abandoned property"

"Abandoned property" means any, moveable or immoveable belonging to a person whose home town or place of origin is not situate in the River state of Nigeria, which in the opinion of Military Governor or Authority, has been abandoned by owner thereof as a result of the civil war in Nigeria or disturbances in the country leading to it, and is at the time of the making of this Edict not in any physical occupation under the personal management of such owner." Per GALADIMA, J.C.A. (Pp. 38-39, paras. G-B) - read in context

 

2. LAND LAW - ABANDONED PROPERTY: Factors that must be taken into consideration to qualify a property as an abandoned property

"From the foregoing definition the following factors must be taken into consideration to qualify as an abandoned property viz: (a) That such property must be shown to belong to a person whose home town or place of origin is not situate in Rivers State of Nigeria. (b) That the then Military Governor or the Abandoned Property Authority must hold the opinion that such property has been abandoned by the owner thereof as a result of the civil war in Nigeria or the disturbances in the country leading to it; and (c) That it must be shown that at the time of the making of the Abandoned properties (custody and Management) Edict No. 8 of 1969 such property was not in the physical occupation or under the personal control and management of such owner. None of the essential ingredients that abandoned property is present in this case as listed (a) - (c) above. Therefore the property in dispute is not an abandoned property as defined in S.2 of the Abandoned property (custody and Management) Edict 1969 quoted above. The court and the parties are bound by that definition: See ACME BUILDERS LTD. v. K.S.W.B. (1999) 2 NWLR (pt. 590) 288 and CHIEF DIEPRIYE ALAMIESEIGHA V. F.R.N. & 7 ORS (2006) 16 NWLR (Pt.1004) 1 at 58. Apart from the fact that the property in dispute does qualify in law as an not abandoned property there is the additional finding of fact by the learned trial Judge in his judgment on page 79, when he held that the "land is state land". If so, the property being state land could not possibly be an abandoned property within the definition in section 2 (supra)." Per GALADIMA, J.C.A. (Pp. 39-40, paras. C-C) - read in context

 

3. EVIDENCE - ADMISSIBILITY OF DOCUMENTS: Whether it is proper a judge to expunge from judgment documents admitted as Exhibit by him

"The Supreme Court in NWOSU V. UDEAJA (1990) 1 NWLR (pt. 125) 188, on the propriety of expunging from judgment documents admitted as Exhibit, held that it is wrong for the trial Judge having admitted documents as Exhibits to expunge them in his judgment unless the admission of such documents in the first instance amounts to a nullity. The following observation of NNAEMEKA-AGU, JSC, in that case at page 219 is instructive: "I very much doubt the propriety of the procedure whereby a Judge admits same judgments as exhibits and later turns round to reject them as inadmissible. This procedure has not the support of decided cases unless, of course, the original decision to admit them was null and void. Having admitted them he ought to have concentrated on their cogency." AGBAJE JSC who delivered the lead judgment in that case at pp. 210 - 211 has this to say: "So, the question of the learned trial Judge setting aside that decision or ruling for that reason does not arise. So the learned trial Judge could not set aside that decision or ruling. So all the exhibits which the learned trial Judge had previously admitted in evidence in this case should have been considered by him in coming to a decision in this case. In otherwords the weight to be attached to each of the exhibits ought to have been considered by him. so in my judgment exhibits G and H which had been admitted in evidence should have been considered along with other documentary evidence in the case ..." Per GALADIMA, J.C.A. (Pp. 27-28, paras. D-D) - read in context

 

4. EVIDENCE - ADMISSIBILITY OF PRIMARY DOCUMENT: Whether a primary document once established by evidence can be rejected

"Once a primary document is pleaded and established by proof of evidence it can not be rejected upon, see Isaac Omorege vs. Lawani (1980) 3-4 S.C 108. Nigeria Maritime Services Ltd v. Alhaji B. Afolabi (1978) 2 S.C. 79." Per THOMAS, J.C.A. (P. 48, paras. B-C) - read in context

 

5. EVIDENCE - ADMISSIBILITY OF PRIMARY EVIDENCE: Whether a primary evidence needs to be certified before it can be admitted in evidence

"It is for the foregoing reasons that I shall hold that Exhibit 'B' being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and, 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit 'B' ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, Learned counsel for the Respondent argued that original of public documents ought to be certified to make them admissible. In response to this argument this court held per OPENE JCA thus: "I do not know how the Learned counsel came about this argument when a copy of a document is certified, it is certified to be a true copy of the original, if then the original is to be certified, what will it be certified to be? Will it be certified as a true copy of itself (original)?" In conclusion his Lordship held that the documents were wrongly rejected and ought to have been admitted in evidence. Clearly in view of this decision, I hold that Exhibit 'B' was wrongly rejected and ought to have been considered by the Learned Trial Judge in his judgment instead of treating it as if it had never been admitted." Per GALADIMA, J.C.A. (Pp. 26-27, paras. E-D) - read in context

 

6. JUDGMENT AND ORDER - DECISION OF COURT: The basis of court's decision in case : Whether a court can speculate

"The law is that the decision of a court must be based only upon the facts and materials placed before the court as well as the issues raised by the parties in their pleadings; see ONYIA V. ONYIA (supra); HELEN OBULOR V. LINUS OBORO (supra). In other words, in deciding a case a trial Judge must keep strictly to the pleadings of the parties and issues arising from their pleadings and must not import into his judgment issues not pleaded. The learned trial judge observed and concluded that there is "no evidence of the determination of any pre-existing lease through effluxion of the term of years or otherwise which will enable the Government grant interest in the property to the plaintiff ''. These observations were purely speculative. Law forbids speculation in the adjudicatory process: OVERSEAS CONSTRUCTION LTD v. CREEK ENT. LTD (1985) 3 NWLR 407 AT 414; ORHUB v. N.E.P.A. (1998) 7 NWLR (Pt.557) 187 at 200 and AFRICAN CONTINENTAL SEAWAYS LTD. V. NIGERIAN DREDGING, ROADS & GENERAL WORKS LTD (1977) SSC 235 at 249-250." Per GALADIMA, J.C.A. (Pp. 35-36, paras. C-A) - read in context

 

7. EQUITY - PRIORITY: What happens when two competing titles originate from a common grantor

"The law is, where as in the instant appeal, the two competing titles originate form a common grantor, the first in time takes priority and the trial Judge must, in addition to finding as a fact that both parties derive title originally for a common grantor, proceed to ascertain, where there is credible evidence, the priority of the competing titles: See the cases of ATANDA v. AJANI (1989) 3 NWLR (PT. 111) 511 AT 538, OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745 at pp. 751-752 and AZI v. REGISTERED TRUSTEES OF EVANGELICAL CHURCHES (1991) 6 NWLR (pt. 195) 111 at p. 126." Per GALADIMA, J.C.A. (Pp. 29-30, paras. F-B) - read in context

 

8. EQUITY - PRIORITY: The order of priority for competing interest interests by two or more parties claiming title to the same land from a common grantor

"In law, the interest of the appellant arose first in time than that of the 1st Respondent and must therefore prevail over that of the 1st Respondent. In the case of MNGUNENGE V. VERONICA NANDE (2006) 10 NWLR (Pt.988) 256 at p. 284, this court stated as follows: "The principle has long been established that, where, as in this present case, there are competing interests by two or more parties claiming title to the same land from a common grantor, the position both at law and in equity, is that such competing interest will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure, which simply means, "he who is earlier in time is stronger in law." See Ahmadu Bello university v. Fadinamu Trading co. Ltd. & Anor. (1975) 1 NWLR 45, Abiodun Aderaja v. Olatunde Fanoiki & anor. (1990) 2 NWLR (pt.131) 137 and 151." This is the law. The learned trial Judge was therefore wrong in failing to so hold in line with the foregoing authorities. See further the cases of ATANDA V. AJANI (1989) 3 NWLR (Pt. 111) 511 at 558. OGUNLEYE v. ONI (1990) 2 NWLR (pt, 135) 745 at 751 - 752 and AZI v. REGISTERED TRUSTEES OF EVANGELTCAL CHURCHES (1991) 6 NWLR (pt. 195) 111 at 126. This court is entitled to interfere with the decision of the trial court; where it has; been shown, as in the case here, that; the decision does not flow from the evidence and that relevant evidence, particularly, Exhibit 'B' was not considered in arriving at the just and relevant decision resulting in a serious miscarriage of justice. See NASIRU v. LADONKA (1989) 7 NWLR (pt. 557) 221 at page 230; ODOFIN V. AYOOLA (1984) 11 SC ODINAKA V. MOGHALU (1992)4 NWLR (Pt. 233) 1. I agree with the learned Senior counsels submission that with the appellant's allocation subsisting in his favour, 1st Respondent's lease agreement; which was created subsequently by the same grantor (Rivers State Government) in respect of the same property cannot be valid one. After the State Government has fully divested itself of the interest in the said property, there is no longer existing right vested in it to dear with the said property by was, of further lease to the 1st Respondent. See: EGBUCHE v. IDIGO (1934) 11 NLR 140; ADAMO AKEJU & ORS V. CHIEF SUENU (1935) 6 NLR 87 and UGO v. OBIEKWE (1989) 1 N.W.L.R. (Pt. 99) 566. The foregoing principle is based on a Latin maxim; Nemo dat quod no habet, meaning: no one can give that which he does not have. Applying the foregoing decisions and principles, it is concluded that the appellant has a better right to occupy property the in dispute than the 1st Respondent." Per GALADIMA, J.C.A. (Pp. 36-38, paras. C-A) - read in context

 

9. EVIDENCE - PROOF OF DOCUMENTS: Ways to prove primary evidence

"It is settled law that the proof of documents must strictly be by primary evidence except in cases stipulated under section 97 of the Evidence Act where secondary evidence can then be tendered and will be accepted. Under Section 94(1) of the Act, the meaning of primary evidence is defined. It reads as follows. "s.94 (1) Primary evidence means the document itself produced for the inspection of the court." Per THOMAS, J.C.A. (P. 47, paras. C-E) - read in context

 

10. EVIDENCE - PROOF OF EVIDENCE: How content of document can be proved

"By the combined effect of sections 93, 96 and 97 of the Evidence Act two ways by which the contents of document may be proved are by primary and by secondary evidence. Section 93 deals with proofs of contents of documents. It provides that the contents of documents may be proved either by primary or by secondary evidence. The proof is by primary evidence except in cases stipulated in section 97 where secondary evidence may be given. See section 96." Per GALADIMA, J.C.A. (P. 24, paras. A-C) - read in context

 

11. EVIDENCE - WRONGFUL EXCLUSION OF EVIDENCE: The legal provisions on wrongful exclusion of evidence and the condition for reversing a decision on ground of wrongful exclusion of evidence

"Section 227 (2) of the Evidence Act, which provides that the wrongful exclusion of evidence shall not of itself be a good ground for the reversal of any decision in any case, if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same. See ANYANWU V. MBARA (1992) 5 NWLR (pt.242) 386 at 400, ATT. GEN. KWARA STATE V. OLAWALE (1993) 1 NWLR (pt. 272) 645 AT 661. The wrongful exclusion of the evidence must cause miscarriage of justice before a reversal or even a retrial will be ordered: See AYENI V. DADA (1978) 3 SC. 35 at 53. In the instant case the wrongful exclusion Exhibit 'B' has caused miscarriage of justice. The judgment would not have been the same had this Exhibit not been excluded. I hold this view, because it is clear that the parties are claiming the title to the property from the same source that is the Rivers State Government a common grantor so to say." Per GALADIMA, J.C.A. (P. 29, paras. A-F) - read in context

 

SULEIMAN GALADIMA, J.C.A. (Delivering the Leading Judgment): The Appellant as the plaintiff initiated this case by a writ of summons in the High court of Rivers State in the Port Harcourt Judicial Division. After the writ was duly served on all the Respondents then Defendants, only the 1st Respondents entered appearance by filing a Memorandum of Appearance. The other Defendants namely the second and the third did not enter any appearance and filed no pleadings in his suit. In the 1st Respondent defended the action.

Pleadings were duly filed and exchanged between the Appellant and the 1st Respondent.

Appellant's claims in this suit stated in paragraph 26 of the statement of claim and reproduced on pages 10 - 11 of the record are as follows:

"26, WHEREFORE the plaintiff has suffered loss and damage and claims from the Defendants as follows.

(a) A declaration that the purported sale of the property known as and called 33 Okoroji Street D/Line Port Harcourt to the first Defendant is unfair, unjust, null and void and of no effect whatsoever and should be set aside.

(b) A declaration that the plaintiff is entitled to the Right of Occupancy in the said property, the same having been first allocated to the plaintiff before the property sale to the first Defendant.

(c) A perpetual injunction restraining the first Defendant, his servants agents or otherwise from disturbing the peaceful possession of the said property by the plaintiff and/or the tenants lawfully put in by the plaintiff or in any way interfering with the plaintiff's possession of the same.

(d) In the alternative, the sum of N31,500.00 (thirty-one thousand, five hundred naira) being the amount spent in building up, remodeling and completion of the building together with interest at the prevailing bank rate from October, 1974 till judgment is, given in this suit, the value of the Naira as against International currencies as it was in 1974 being taken into consideration at the time of Judgment. "

The case of the plaintiff as revealed from his pleadings and the records, simply put, is that the property in dispute that is No. 33 Okoroji Street D/Line Port Harcourt belongs to the Rivers State Government which subsequently, in response to his application for allocation of same, was duly allocated to him vide allocation letter from the then Rivers State Military Governors office dated 10th July, 1974. The original, not a photocopy of the allocation letter, was tendered and admitted in evidence and marked Exhibit "B". The Appellant also tendered in evidence a letter dated 5th June, 1974 by which he applied for allocation of the property to him. After the allocation of the property to the plaintiff to the appellant, he took possession and expended huge funds in renovating and improving the standard and quality of the property. That the plaintiff enjoyed peaceful possession until the 1st Defendant emerged in 1987 claiming ownership of same property by virtue of purchase from the Rivers State Government.

On the other hand, the 1st Defendant's case is that it bought the property in dispute from the Rivers State Government and was issued with a building lease which was executed on 16/3/79, tendered and admitted in evidence and marked Exhibit "F1". That there was no revocation of the said allotment.

Trial commenced with the plaintiff testifying as PW2. His evidence was in accordance with facts pleaded in the amended statement of claim that the property in dispute was duly and properly allocated to him by the Rivers State Military Governor pursuant to his application for such allocation. PW2 further testified that he carried out extensive renovation works on the property.

The 1st Respondent counter-claimed against the plaintiff for declaration of title to the said property; N600,000 for use and occupation and/or loss of rents on the subject matter and possession. The 1st Respondent has contended that at all material time, there was no demand for payment of any sum for the purchase of the property from the Rivers State Government neither was there any form of payment by the plaintiff for the subject matter in furtherance of any sale or lease. That the subject matter was not conveyed to the plaintiff in any manner. In short the case of the 1st Respondent was that it purchased the subject matter from the Rivers State Government which issued it a building lease dated 16/3/1979, registered in the land Registry as 90/90/79 and admitted in evidence as Exhibit F.

At the end of the trial, the learned trial Judge dismissed the Plaintiff s claims on 17/1/2002. As regards the 1st Defendant's counter-claim, for the sum of N600,000 for use and occupation and/or loss of rent in respect of the one duplex it was dismissed.

Being dissatisfied with this judgment the Plaintiff appealed to this court by his Notice of Appeal dated 4/2/2003 containing FIVE grounds of appeal.

In compliance with the practice and procedure of this Court, briefs of argument were settled and exchanged. In the Appellant's brief of argument settled by B.E.I. NWOFOR (SAN) THREE issues were identified for consideration and determination of the appeal as follows:

"1. Whether the learned trial Judge is right in holding that Exhibit 'B" ought not to have been admitted in evidence and in treating as if it had never been admitted?

2. Whether the learned trial Judge is right in failing to hold that the Plaintiff/Appellant is entitled to a right of occupancy in respect of No. 33 Okoroji Street D/Line, Port Harcourt subject matter of this suit and has better right to occupy the property than the 1st Defendant/Respondent?

3. Whether the learned trial Judge in failing to hold that the purported sale of the property in dispute by the Abandoned Properties Implementation Committee to the 1st Defendant/Respondent and Exhibit F1 issued to the 1st Defendant/Respondent pursuant to the said sale are invalid, null, and void and of no legal effect whatsoever?

On the other hand, the 1st Respondent initially at page 2, of his brief of argument presented FOUR issues for determination of the appeal. However on 9/2/2010 when this appeal came up for hearing, M.O. BIANEYIN (Jnr.) Esq. sought to withdraw the 4th issue having been overtaken by events as it was no longer tenable. This turn of event has to do with the withdrawal of the Appellant's cross-appeal upon which the 4th issue was predicated. In the circumstance the 4th issue was struckout and the related arguments on it thereof set out at pp. 11-13 and the 6th conclusive paragraph at p. 14 were accordingly discountenanced. In the light of the foregoing THREE issues left for determination of the appeal at page 2 of the 1st Respondent's brief are as follows:

"1. Whether the learned trial Judge is right in treating Exhibit 'B' as if it had never been admitted (Ground 1).

2. Whether the Plaintiff/Appellant is entitled to a right of occupancy in respect of the subject-matter of this suit (Ground 11).

3. Whether the Building Lease granted by the Rivers State Government to the 1st Defendant/Respondent is valid (Grounds III, IV and V).

On 9/2/2010 this appeal was heard. Learned Counsel for the Appellant identified the Appellant's brief of argument dated 26/5/2006 but deemed filed the same date and the Reply brief filed on 30/6/2008. He adopted both briefs and without further amplification on the issues, he urged the Court to allow the appeal. The three issues raised by the Appellant were argued seriatiatim.

On the other hand, Learned Counsel for the 1st Respondent equally identified his brief of argument filed on 19/5/2008 as amended, herein above. It was contended that the Appellant Reply paragraph 'B' pp. 3-23 to the 1st Respondent's arguments raised new issues entirely, not identified and canvassed earlier by the Appellant and thus all the submission should be struckout without further amplification. Learned Counsel for the 1st Respondent then urged the Court to dismiss the appeal.

It has earlier been noted that the 2nd and, 3rd Respondents who did not contest the matter at the Court below had no business filing any briefs of argument. They did not contest the appeal.

I have carefully considered the issues raised by the parties. It would appear to me that the THREE ISSUES raised by the Appellant are quite apt and are comprehensive. They have covered the core issues in this appeal. I have taken them serially.

In the first issue, which arose from ground one, the Appellant has contended that Exhibit 'B' which is a letter from the then Rivers State Military Governor's office addressed to the Appellant clearly qualifies as document as defined in Section 2 subsection (1) of the Evidence Act cap. E.14 volume 6 of the Laws of the Federation 2004. It is submitted that by the combined effect of Sections 93, 96 and 97 of the Evidence Act, Exhibit "B" is a primary Evidence as such admissible under Section 94 (1). That the Appellant both in his pleadings and evidence at the trial Court was consistent in relying on Exhibit 'B'. It is submitted that he never pleaded nor gave secondary evidence of that Exhibit. It is further submitted that the learned trial Judge erred in law when he held that the only admissible evidence of a public document is its certified true copy. That when statutory provisions are clear and unambiguous they should be given their plain, ordinary and literal meaning. Reliance was placed on the following cases: BRONIK MOTORS LTD & ANOR V. WEMA BANK LTD (1983) 6 SC 158; ABIOYE V. YAKUBU (1991) 2 NWLR (pt. 316) 159 at p. 195, JAMMAL STEEL STRUCTURES LTD V. AFRICAN CONTINENTAL BANK LTD. (1973) 11 SC. 77 at 85 and BOARD of CUSTOMS & EXERCISE V. BARAU (1982) 10 SC 48 at p. 130.

It is submitted that since Exhibit 'B' is original document itself addressed to and received by the Appellant it does not require it to be certified to render it admissible in evidence. That the Exhibit was wrongly rejected and ought to have been considered by the learned trial judge in his judgment. Reliance was placed on the case of ALEX A. B. EBU V. HON. CLETUS OBUN & ANOR. (2004) 14 NWLR (PT. 892) 76 at page 88. That Exhibit 'B' having been admitted the learned trial Judge ought to have concentrated on its cogency, citing ANAZODO NWOSU V. CHUKWUMANJO UDEAJA (1990) 1 NWLR (PT.125) p. 188.

Responding to, the Appellant's in-depth argument on this issue, learned counsel for the Respondent presented pithy argument (appreciating what a brief of argument ought to be). He submitted, agreeing; with the decision of the Court below that Exhibit 'B' is not itself the letter from the Military Governor's office, but a duplicate copy of the letter, a mere reproduction of the letter sent to the Appellant. That there was no evidence on record that the copy of the letter entered in court was executed side by side with any other letter of its kind not brought to court; for section 94(2) of the Evidence Act to apply, as submitted by counsel to the Appellant. In other words that section 95(c) is the appropriate and applicable section and that the learned trial judge rightly referred to Exhibit 'B' as secondary evidence. Learned counsel submitted further that the learned trial judge did not set aside his earlier Ruling admitting Exhibit 'B' or turned round to reject it as inadmissible. Rather he adopted a procedure that is in line with the practice of the courts which is to ignore Exhibit 'B' having found that it was not certified, and it ought not to have been admitted in the first place on the authority of NIPC v. THOMPSON ORGANIZATION LTD & ANOR (citation not supplied.) That the learned trial judge considered two practicable procedures, as enunciated in SALAO v. WILLIAMS (1998) NWLR (Pt.574) 51 p. 505 at 514.

(a) evidence admissible upon fulfilling certain conditions and

(b) evidence inadmissible for all purpose.

That in the case of the former, the adverse party must object to the admissibility of the document when tendered, failing which it must be acted upon by the court. For the latter the evidence remains inadmissible even where the parties consent to its admission, citing OKORO V. THE STATE (1996) 14 NWLR (PT. 584) 181 at 207; V.S.T V. XTODEUS TRADING CO. (1993) 5 NWLR (pt. 296) 675 at 695. That on the authority of KABO AIR LTD. v. IMCO BEVERAGES LTD. (2003) FWLR (Pt. 136) p. 944 at 955 - 956, failure to certify a copy of a public document makes it inadmissible for all purpose. Relying on SHANU V. AFRIBANK NIG. PLC (2003) FWLR (Pt.136) p. 823 at 853; where inadmissible evidence is admitted, it is the duty of the court to ignore it at the time of preparing the judgment. Learned counsel conceded that the learned trial judge was wrong and that Exhibit 'B' is inadmissible. It is still the contention of the Respondent that admission of Exhibit 'B' would not have, in anyway altered the decision of the court in other words a decision by the trial court that Exhibit 'B' was wrongfully excluded by the lower court will not lead to a reversal of the decision of the lower court.

This is so because Exhibit 'B' has no evidential value whatsoever, as it cannot be regarded as a document of title to land as it was not the Appellant's case at the trial that Exhibit 'B' had vested any title to the Appellant. He refers to paragraphs 9 and 11 of the Appellant's statement of claim. That in paragraph 9, he only alleged that he applied for the said property to be allocated/and or transferred to him; while in paragraph 11, he alleged that "by a letter ref. No. A.219/T/17 dated 10th July 1974 and addressed to the plaintiff he was informed that the Military Governor had approved the allocation." Learned Counsel took the view that in all his evidence, the Appellant did not show that he was vested with any interest whatsoever in the property and the learned trial judge was therefore right when he refused to find as a fact that the appellant acquired any title to the property. Counsel further submitted Exhibit 'B' does not have the effect of passing title of the subject matter from the Rivers State Government to the Appellant. That the mere production of a document of a grant does not itself entitle a claimant to a declaration of title. It is rather a means by which further inquires as to the usefulness or validity of the document may be made. It is contended that before the Appellant can conclude that Exhibit 'B' is a document capable of entitling him to a declaration of title, he must first answer the pertinent question whether exhibit 'B' has the effect claimed by him in the suit; citing ROMAINE V. ROMAINE (1992) 4 NWLR (Pt. 38) p.650 at 662.

Relying on the authorities of EKPANYA V. AKPAN (1989) 2 NWLR (Pt.101) p.86 at 97 and ADEBANJO V. BROWN (1989) 2 NWLR (Pt. 141) 661 at 689, it is submitted that any document purporting to pass title from Rivers State Government to the Appellant; must clearly and precisely show the nature and extent of the disposition, for it to be valid.

It is finally argued that even if Exhibit 'B' is admitted, there is no scintilla of evidence, even oral, to guide the court as to the nature and extent of the disposition in the said letter. Being a mere letter informing of an allocation it did not create any interest in land and could not and did not prevent the Rivers State Government from selling or dealing with the subject matter. Cited in support MANIA. v. IDRIS (2000) FWLR (pt.23) p.1287 at 1248 -50.

The Appellant filed a Reply to the 1st Respondent's argument that Exhibit 'B' is a mere reproduction of the letter sent to the Appellant and therefore secondary. It is needless reviewing in detail the elaborate Reply of the Appellant. I shall however, in the course of this judgment refer to the relevant arguments proffered by the Learned Senior Counsel.

This ISSUE No.1 which, arose from ground 1 of the grounds of appeal is whether the learned trial Judge is right in holding that Exhibit 'B' ought not have been admitted in evidence and in treating it as if it had never been admitted. parties no doubt, are ad idem that Exhibit 'B' is a letter from the then Rivers State Military Governor's office addressed to the Appellant. Being a letter, Exhibit 'B' clearly qualifies as a document within the definition of a "document" in section 2(1) of the Evidence Act cap. E14 volume 6 L-N Laws of the Federation of Nigeria, 2004 (hereinafter to be referred to as the "Evidence Act,, The section reads:

"2. In this Act, except the context otherwise requires "document" includes books, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letters, figures or marks by more than one of these means intended to be used or which may be used for the purpose of recording that matter."

By the combined effect of sections 93, 96 and 97 of the Evidence Act two ways by which the contents of document may be proved are by primary and by secondary evidence. Section 93 deals with proofs of contents of documents. It provides that the contents of documents may be proved either by primary or by secondary evidence. The proof is by primary evidence except in cases stipulated in section 97 where secondary evidence may be given. See section 96.

Right from the stage of pleadings the Appellant pleaded the very letter Ref. No. A.219/T/17 dated 10/7/1974 and addressed to him in which he was informed that the "Military Governor of Rivers State had approved the allocation of the premises at No. 33 Okoroji". This fact was clearly pleaded in paragraph 11 of the statement of claim of the appellant, thus:

"11. Plaintiff also avers that by a letter REF. No. A.219/T/17 dated 10th July, 1974 and addressed to the plaintiff he was informed that the Military Governor had approved the allocation of the premises at No. 33 Okoroji to him."

It can be seen from this that the Appellant pleaded the very letter he received from the Military Governor of Rivers State He pleaded the original document itself not the photocopy or certified true copy which are secondary evidence within the content of Section 95 of the Evidence Act consistent with his averment in paragraph 11 of the statement of claim. The Appellant tendered the same letter through PW1. The evidence of PW1 to that effect on page 29 lines 23-32 of the record is that:

"There was an approval conveyed to me in writing by one Mr. J.A. Ahiakwo. The letter was dated 10th July, 1974, if I see the letter, I will be able to identify it. This is the letter.

Afangide: I seek to tender the reply

Bianeyin: No objection Court. letter dated 10th July, 1974, addressed to Mr. S.N. Uzor conveying approval of the allocation of No. 33 Okoroji Street to him is hereby admitted in evidence and marked Exhibit 'B'.

It is noteworthy that AFAGIDE Esq. was the Learned Counsel for the Appellant while BIANEYIN Esq. was the Learned Counsel for the 1st Respondent. It was clear to the parties that Exhibit 'B' is the very letter from the Rivers State Military Governor's Office, which was addressed and received by the Appellant and this; qualifies as primary evidence within Section 94 (1) of the Evidence Act.

It is instructive to observe that in his judgment, the learned trial Judge did not find that Exhibit 'B' was a photocopy or secondary evidence of the original letter received by the Appellant. Exhibit 'B' is admissible under Sections 93 and 96 of Evidence Act. Exhibit 'B' was admitted in evidence without any objection from the Learned Counsel for the 1st Respondent. See page 29 lines 23-32 of the record.

Attention has been drawn to the Respondent's further argument on page 2 of his brief to the effect that there is no evidence on record that the copy of the letter tendered in court was executed side by side with any other letter of its kind not brought to court, for Section 94 (2) to apply. I agree with the learned Counsel for the Appellant that this argument is misconceived for the two reasons he gave Firstly for the Respondent to sustain this position there ought to have been an appeal by the Respondent against the finding of the learned trial Judge that Exhibit 'B' is

"duplicate copy". It is for the Respondent to appeal against that finding if it holds the view that the finding is not supported by any evidence on record that the duplicate copy was executed side by side (that is separate from) any other letter of its kind not brought to court. The second reason is that what the Appellant pleaded and tendered in the trial Court is the very letter dated 10/7/74 which he received from the Military Governor of Rivers State (Exhibit 'B'). It is for the foregoing reasons that I shall hold that Exhibit 'B' being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and, 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit 'B' ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, Learned counsel for the Respondent argued that original of public documents ought to be certified to make them admissible. In response to this argument this court held per OPENE JCA thus:

"I do not know how the Learned counsel came about this argument when a copy of a document is certified, it is certified to be a true copy of the original, if then the original is to be certified, what will it be certified to be? Will it be certified as a true copy of itself (original)?"

In conclusion his Lordship held that the documents were wrongly rejected and ought to have been admitted in evidence.

Clearly in view of this decision, I hold that Exhibit 'B' was wrongly rejected and ought to have been considered by the Learned Trial Judge in his judgment instead of treating it as if it had never been admitted.

The Supreme Court in NWOSU V. UDEAJA (1990) 1 NWLR (pt. 125) 188, on the propriety of expunging from judgment documents admitted as Exhibit, held that it is wrong for the trial Judge having admitted documents as Exhibits to expunge them in his judgment unless the admission of such documents in the first instance amounts to a nullity. The following observation of NNAEMEKA-AGU, JSC, in that case at page 219 is instructive:

"I very much doubt the propriety of the procedure whereby a Judge admits same judgments as exhibits and later turns round to reject them as inadmissible. This procedure has not the support of decided cases unless, of course, the original decision to admit them was null and void. Having admitted them he ought to have concentrated on their cogency."

AGBAJE JSC who delivered the lead judgment in that case at pp. 210 - 211 has this to say:

"So, the question of the learned trial Judge setting aside that decision or ruling for that reason does not arise. So the learned trial Judge could not set aside that decision or ruling. So all the exhibits which the learned trial Judge had previously admitted in evidence in this case should have been considered by him in coming to a decision in this case. In otherwords the weight to be attached to each of the exhibits ought to have been considered by him. so in my judgment exhibits G and H which had been admitted in evidence should have been considered along with other documentary evidence in the case ..."

It is note worthy that the learned trial Judge ruled on the relevance of Exhibit 'B' on page 29 of the record, as an approval conveying the allocation of the property to the Appellant in writing. There is no question of the ruling of the trial Judge admitting the Exhibit 'B' in evidence being a nullity. He could not have set aside that decision or rather ruling for that reason. It was therefore necessary for the learned trial judge to have considered all the Exhibits before coming to a final decision in this case He failed to consider Exhibit 'B' which was the title document relied upon by the Appellant. It is the very document by which he claims the right to lawful occupy the property in dispute. It cannot be seriously argued that the wrongful exclusion of this Exhibit did not occasion miscarriage of justice in this case or that judgment would have been the same had it not been excluded. 

Section 227 (2) of the Evidence Act, which provides that the wrongful exclusion of evidence shall not of itself be a good ground for the reversal of any decision in any case, if it shall appear to the court on appeal that had the evidence so excluded been admitted it may reasonably be held that the decision would have been the same. See ANYANWU V. MBARA (1992) 5 NWLR (pt.242) 386 at 400, ATT. GEN. KWARA STATE V. OLAWALE (1993) 1 NWLR (pt. 272) 645 AT 661. The wrongful exclusion of the evidence must cause miscarriage of justice before a reversal or even a retrial will be ordered: See AYENI V. DADA (1978) 3 SC. 35 at 53. In the instant case the wrongful exclusion Exhibit 'B' has caused miscarriage of justice. The judgment would not have been the same had this Exhibit not been excluded. I hold this view, because it is clear that the parties are claiming the title to the property from the same source that is the Rivers State Government a common grantor so to say. 

The law is, where as in the instant appeal, the two competing titles originate from a common grantor, the first in time takes priority and the trial Judge must, in addition to finding as a fact that both parties derive title originally for a common grantor, proceed to ascertain, where there is credible evidence, the priority of the competing titles: See the cases of ATANDA v. AJANI (1989) 3 NWLR (PT. 111) 511 AT 538, OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745 at pp. 751-752 and AZI v. REGISTERED TRUSTEES OF EVANGELICAL CHURCHES (1991) 6 NWLR (pt. 195) 111 at p. 126. It is clear from Exhibit. 'B' that the Appellant was allocated the property by the Military Governor of Rivers State as far back as 10th July, 1974 while the 1st Respondent's building lease from the same source was issued much later on 16th March 1979. Clearly, Appellant's interest in the property was first in time, almost FIVE YEARS before the 1st Respondent purportedly got a building lease over the same property. Therefore the trial court, as a court of law and equity has a duty to ascertain whether the Appellant has discharged the onus of proof on him. To arrive at the decision that the Appellant's title or interest in the property prevails over that of the 1st Respondent the ought to have considered Exhibit 'B'. If he had done that, he would have arrived at the decision that the Appellant's title or interest prevails over that of the 1st Respondent.

As mentioned earlier in this judgment, and in the light of the forgoing I hold that the learned trial Judge, with due, respect was wrong in excluding Exhibit 'B' as if it had never been admitted.

That decision can hardly be supported. It resulted in a miscarriage of justice and cannot stand, because the learned trial Judge has failed to exercise his adjudicating power as required by the law. This issue is therefore resolved in the negative in favour of the Appellant.

The issue is whether the learned trial Judge was right in failing to hold that the Appellant is entitled to the right of occupancy in respect of No. 33 Okoroji Street D/Line port Harcourt subject matter of his suit. Learned counsel for the Appellant has submitted that since the property in dispute belongs to the Rivers State, it can validly allocate same to any person including the Appellant. Relevance is placed on Exhibit 'A' the Appellant's application for allocation of the said property, and Exhibit 'B' conveying such approval to him.

It is submitted by the Appellant that there is ample evidence on record showing that pursuant to the approval granted to the Appellant, he went into full possession of property and carried out extensive and costly renovation of the property and remained in possession thereof. It is contended that the Appellant adduced evidence which was not controverted or challenged under cross-examination that he was the person first allocated the property which the learned trial Judge rightly held was "state land". It was therefore submitted that the learned trial Judge was wrong in not acting on the unchallenged evidence of the Appellant concerning the prior allocation of the property by the Government to the Appellant and his exercise of act of possession thereon. It is argued that throughout the trial proceeding, no shred of evidence was adduced by the 1st Respondent to show that the said allocation of the property in 1974 to the appellant was first revoked or cancelled by the Government or set aside by any court of law before the subsequent lease granted in 1979 to the 1st Respondent.

Appellant has relied on the unchallenged evidence of the appellant on page 26 lines 32-33 and page 27 lines 1 - 3 of the record. Referring to the passage in the judgment on page 79 lines 28 - 35, it is submitted that the learned trial Judge did not find that the 1st respondent had ever been in possession of the property in dispute or ever carried out any renovation thereon. That the decision of the Learned trial Judge was not based on the facts and materials placed before him and/or as well as the issues raised by the parties in their pleadings. Reliance was placed on the cases of OBI ONYIA V. LOUIS ONYIA (1985) 3 NWLR (Pt. 11) 1 p.5, HELEN OBULOR V. WESO OBORO (2001) 8 NWLR (pt. 714) 25 at p. 32 and SALAWU AJIDE V. KADIRI KELANI (1985) 3 NWLR (Pt. 12) 248.

In view of the forgoing, learned Senior counsel has urged this court to resolve this second issue in the negative and to allow the appeal.

On this issue the 1st Respondent set out 5 ways of proving title to land and submitted that where a plaintiff in his pleadings and evidence seeks to prove his title by establishing his root of title (for instance by producing title documents) he can no longer seek to prove his title by acts of possession where his root of title fails. It is submitted that since the Appellant has failed to prove, his grant, he does not expect the court to consider his acts of possession as an alternative. That the proper thing is for the court to dismiss the plaintiffs case for failing to put up a prima facie case of title; citing: OKEKE v. EZIKE (1993) 3 NWLR (pt. 290) 751 at 767; NTEOGWUIJA v. IKURU (1998) 10 NWLR (pt. 569) 267 at 294, CHIME v. UDE (1993) 3 NWLR (pt.279) 78. That Exhibit B was not an allocation paper and none was tendered. That it was merely a report that an allocation has been made. Such a letter is not and cannot be a legal means of transfer of title to land. It is further submitted that the Appellant could not claim to have acquired any rights in equity over the property because there was no evidence that he was asked to pay or he actually paid any purchase price or rent to the Rivers State Government. Relying on the cases of NZEKWU v. NZEKWU (1990) 2 NWLR (pt. 104) 373 at 418 and TIJANI v. AKINWUNMI (1990) 1 NWLR (pt. 125) p.237, learned counsel for the 1st Respondent has submitted further that for a grantee of land to prove an equitable interest in land he must not only show that he is in possession, he must also show that he has paid the purchase price.

On the issue of competing interests, it is submitted that there were none and that all the cases cited by the appellant do not apply to this case, because at no time did the Rivers state Government divest itself of title to the subject matter in favour of the Appellant. Relying ADELAJA V. FANOIKI (1990) 2 NWLR (pt. 131) 137 at 151 cited by the learned counsel for the Appellant. It is urged that this issue be resolved in favour of the 1st Respondent.

This second issue is distilled from grounds 2, 4 and 6 of the Appellant's grounds of appeal. The complaint of the appellant is against the failure of the learned trial Judge to hold that the Appellant is entitled to right of occupancy in respect of the property at No.33 Okoroji Street D/Line, the subject matter of this suit. The finding of the learned trial Judge is that the property in dispute is "state land", that is property belonging to the Rivers State Government, and therefore the said Government could not have acquired its own state land for allocation to the Appellant. I agree with the learned counsel for the Appellant that since the property in dispute is that of Rivers State Government it becomes clear that the then Military Governor can validly allocate same to any person including the Appellant who was first allocated the property. In his judgment, the learned trial Judge did not find as a fact that the Government had revoked the allocation made to the appellant before granting building lease over the same property to the 1st Respondent. He did not find that the 1st Respondent had ever been in possession of the property or carried out any renovation thereon.

In his judgment the learned trial Judge held on page 79 that it is only when a State lease has been determined according to law that the state can validly deal in the land by granting a fresh lease. With due respect to the learned trial Judge these findings (appealed against in ground 4) are clearly misdirection in law. In the first place, in their pleadings, none of the parties (particularly the 1st respondent) raised the issue that prior to the allocation of the properly in dispute to the appellant, that there was any subsisting lease earlier granted by the Government in respect of the same property to any person. Secondly no scintilla of evidence was led by the parties, at the trial that there was a pre-existing and subsisting lease granted by the Government to any person whatsoever, including the 1st respondent in respect of the property before the subsequent allocation made in favour of the appellant as per Exhibit B.

The law is that the decision of a court must be based only upon the facts and materials placed before the court as well as the issues raised by the parties in their pleadings; see ONYIA V. ONYIA (supra); HELEN OBULOR V. LINUS OBORO (supra). In other words, in deciding a case a trial Judge must keep strictly to the pleadings of the parties and issues arising from their pleadings and must not import into his judgment issues not pleaded. The learned trial judge observed and concluded that there is "no evidence of the determination of any pre-existing lease through effluxion of the term of years or otherwise which will enable the Government grant interest in the property to the plaintiff ''. These observations were purely speculative. Law forbids speculation in the adjudicatory process: OVERSEAS CONSTRUCTION LTD v. CREEK ENT. LTD (1985) 3 NWLR 407 AT 414; ORHUB v. N.E.P.A. (1998) 7 NWLR (Pt.557) 187 at 200 and AFRICAN CONTINENTAL SEAWAYS LTD. V. NIGERIAN DREDGING, ROADS & GENERAL WORKS LTD (1977) SSC 235 at 249-250. 

The evidence on record clearly shows that the Appellant had better right to occupy the property in dispute than the 1st Respondent whose interest arose after the appellant's interest. I have said for the umpteenth time that in Exhibit 'B' the Appellant was allocated the property in dispute by the Military Governor of Rivers State as early as 10th March, 1974 while a second grant vide lease of the same property was purportedly made by the same Government to the 1st Respondent much later (5 years later) on 16th March, 1979 as per Exhibit 'F'.In law, the interest of the appellant arose first in time than that of the 1st Respondent and must therefore prevail over that of the 1st Respondent. In the case of MNGUNENGE V. VERONICA NANDE (2006) 10 NWLR (Pt.988) 256 at p. 284, this court stated as follows:

"The principle has long been established that, where, as in this present case, there are competing interests by two or more parties claiming title to the same land from a common grantor, the position both at law and in equity, is that such competing interest will prima facie rank in order of their creation based on the maxim qui prior est tempore potior est jure, which simply means, "he who is earlier in time is stronger in law." See Ahmadu Bello university v. Fadinamu Trading co. Ltd. & Anor. (1975) 1 NWLR 45, Abiodun Aderaja v. Olatunde Fanoiki & anor. (1990) 2 NWLR (pt.131) 137 and 151." This is the law. The learned trial Judge was therefore wrong in failing to so hold in line with the foregoing authorities. See further the cases of ATANDA V. AJANI (1989) 3 NWLR (Pt. 111) 511 at 558. OGUNLEYE v. ONI (1990) 2 NWLR (pt, 135) 745 at 751 - 752 and AZI v. REGISTERED TRUSTEES OF EVANGELTCAL CHURCHES (1991) 6 NWLR (pt. 195) 111 at 126. This court is entitled to interfere with the decision of the trial court; where it has; been shown, as in the case here, that; the decision does not flow from the evidence and that relevant evidence, particularly, Exhibit 'B' was not considered in arriving at the just and relevant decision resulting in a serious miscarriage of justice. See NASIRU v. LADONKA (1989) 7 NWLR (pt. 557) 221 at page 230; ODOFIN V. AYOOLA (1984) 11 SC ODINAKA V. MOGHALU (1992)4 NWLR (Pt. 233) 1.

I agree with the learned Senior counsels submission that with the appellant's allocation subsisting in his favour, 1st Respondent's lease agreement; which was created subsequently by the same grantor (Rivers State Government) in respect of the same property cannot be valid one. After the State Government has fully divested itself of the interest in the said property, there is no longer existing right vested in it to dear with the said property by was, of further lease to the 1st Respondent. See: EGBUCHE v. IDIGO (1934) 11 NLR 140; ADAMO AKEJU & ORS V. CHIEF SUENU (1935) 6 NLR 87 and UGO v. OBIEKWE (1989) 1 N.W.L.R. (Pt. 99) 566.

The foregoing principle is based on a Latin maxim; Nemo dat quod no habet, meaning: no one can give that which he does not have.

Applying the foregoing decisions and principles, it is concluded that the appellant has a better right to occupy property the in dispute than the 1st Respondent.

In the right of foregoing, I hereby resolve this issue in favour of the Appellant and appeal is allowed on this ground.

ISSUE NO. 3

The issue is whether the learned trial Judge is right in failing to hold that the purported sale of the property in dispute by the Abandoned properties Implementation committee to the 1st Respondent and Exhibit F1 Issued to it pursuant to the said sale are invalid, null and void and of no legal effect whatever.

It is the contention of the Appellant that the sale of the property in dispute as an abandoned property by the Abandoned Properties Implementation committee to the  1st Respondent is a nullify and no the was passed whatsoever to it on the principle of Nemo dat quod non habet.

Learned trial judge was found in his judgment that Exhibit F was issued to the 1st defendant pursuant to a same to it by the Abandoned properties Implementation committee. He relied on- Exhibit G, a letter from the Rivers state Ministry of Lards and Survey 5/4/79, and the provision of S. 1(2) of the Abandoned Properties Act Cap. 1. Laws of the Federation 1990.

"Abandoned property" means any, moveable or immoveable belonging to a person whose home town or place of origin is not situate in the River state of Nigeria, which in the opinion of Military Governor or Authority, has been abandoned by owner thereof as a result of the civil war in Nigeria or disturbances in the country leading to it, and is at the time of the making of this Edict not in any physical occupation under the personal management of such owner."

From the foregoing definition the following factors must be taken into consideration to qualify as an abandoned property viz:

(a) That such property must be shown to belong to a person whose home town or place of origin is not situate in Rivers State of Nigeria. 

(b) That the then Military Governor or the Abandoned Property Authority must hold the opinion that such property has been abandoned by the owner thereof as a result of the civil war in Nigeria or the disturbances in the country leading to it; and

(c) That it must be shown that at the time of the making of the Abandoned properties (custody and Management) Edict No. 8 of 1969 such property was not in the physical occupation or under the personal control and management of such owner.

None of the essential ingredients that abandoned property is present in this case as listed (a) - (c) above.

Therefore the property in dispute is not an abandoned property as defined in S.2 of the Abandoned property (custody and Management) Edict 1969 quoted above. The court and the parties are bound by that definition: See ACME BUILDERS LTD. v. K.S.W.B. (1999) 2 NWLR (pt. 590) 288 and CHIEF DIEPRIYE ALAMIESEIGHA V. F.R.N. & 7 ORS (2006) 16 NWLR (Pt.1004) 1 at 58.

Apart from the fact that the property in dispute does qualify in law as an not abandoned property there is the additional finding of fact by the learned trial Judge in his judgment on page 79, when he held that the "land is state land". If so, the property being state land could not possibly be an abandoned property within the definition in section 2 (supra).

In view of the foregoing the Implementation Committee lacked power to sell, convey or transfer any title interest or right in the property in dispute to the 1st Respondent and the purported sale of the property which it made to the 1st Respondent is clearly invalid., null and void and of no legal effect whatsoever. The Latin maxim, nemo dat quod non habet therefore applies.

Curious, enough, after observing on page 80 lines 26 - 28 of the record that the sale of the property to the 1st Respondent was made by the Abandoned Properties Implementation committee, the learned trial Judge on page 80 lines 29 - 32 and page 81 lines 1 -2 of the record held thus:

"That being the case, by the provision of S. 1(2) of the Abandoned Properties Act cap. 1 Laws of the Federation 1990, the property vests in the 1st defendant which is the purchaser free of all encumbrances and without any further assurance apart from the Act. I therefore hold that the 1st defendant holds title to the property in dispute in this case'"

With due respect to the learned trial Judge, he erred in law by applying the provision of section 1(2) of the Abandoned Properties Act (supra) to this case when he concluded that the 1st Respondent held valid title to the Property in dispute. I say this for these obvious reasons: There was not a scintilla of evidence before him showing that the property in dispute is, in law, an abandoned property as statutorily defined in Section 2 of the (supra). 1969 Edict Secondly, the learned trial Judge effectively removed the property in dispute from the realm of an abandoned property when he so held on page 79 of the record. He lost sight of a very important fact - that is that the Abandoned properties Act cap. (supra) came into effect on 28/9/79 and could not have a retrospective effect to a purported sale of the disputed property, to the 1st Respondent since 16/3/79.

Learned Counsel for the 1st Respondent on page 9 of the Respondent's brief agrees with Appellant submission on this issue when he stated as follows:

"Again (at page 114 of his brief) counsel righty submitted that a no iota of evidence exists on record showing that the property in dispute, is in law, an abandoned property as statutorily defined in Section 2 of the Abandoned properties (custody and management) Edict, 1969".

In other words, the Respondent is in contending that neither the Edict No. 8 of 1969 of the Rivers State nor the Act of 1990 applies to this case. It is emphasized in addition to this contention that there exists nothing on record as evidence of sale of the subject matter by the implementation Committee to the 1st Respondent. He therefore associates and agrees with the Learned Senior counsel for the Appellant's submission to this effect. The 1st Respondent's counsel also associates with the learned counsel for the Appellant in his submission that the statutory provisions cannot be waived but must be considered by the court and given effect to, whether cited by counsel or not. It is however argued that such statutory interpretations can only be relevant where there are facts and issues before the court requiring their use. That there are no facts on record to explain why Learned Senior the counsel to Appellant "jettisoned the application of the abandoned properties (custody and management) Edict No. 8. 1969, of Rivers State which commencement date, as provided by the Edict, is 11th day of August 1969 in preference for Adondoned properties Act Cap. 1 Law of the Federation 1990 which came to effect on the 28th day of September, 1979."

I can only understand the 1st Respondent's position to mean that although, the lower court wrongly introduced the Abandoned Properties Act, its decision that it is the 1st Respondent that it entitled to Right of occupancy is nonetheless unimpeachable. Learned counsel is urging this court (and it is so stated on p. 10 paragraph 1 of their) to hold that the "the lower court can rely on a bad reason or wrong law to give a good decision: Reliance was placed on the case of NWAKONOBI V. UDEORAH (1991) 9 NWLR (Pt. 213) p 85 ratio; EKONG V. UDO (2003) NWLR (Pt. 139) p. 1596. The first case came readily within my reach. I read it. I think with due respect the learned counsel (for the 1st Respondent relied on "Ratio 6" of p.85 of this report, of one sentence. He made a simplistic approach to the issue. This is a pitfall most counsel found themselves. Ratios paragraphed as Editorial Notes do not often give good understanding of the real judgment in a case. Ratio decidendi, that is the ground or reason for the decision does it very well. This is at page 90 paragraph C - D of the report per Uwaifor JCA (as he then was) when he held:

"It is true that it was the same G.E. Ezeuko Esq. who brought the motion for that order in 1986 under order 1 rule 1. I think in the nature of the subject matter, it was more appropriate under order 21 rule 4 (now order 17 rule 4) or at any rate, there is nothing to suggest that order 21 rule 4 was inapplicable. The ruling of Onwuamaegbu J. does not say he acted under rule 1 instead of rule 4. It must be appreciated even then that on the authority of the Supreme Court decision in Henry Stephens Eng. Ltd v. Complete Home Ent. Ltd. (1987) (pt. 47) 40, the court having granted the proper prayer sought it would be immaterial if it were to have relied on a wrong law or rule of court."

Proviso to rule 4 of the said order which was copiously set out in the case makes it clear that the trial court has jurisdiction to dissolve an interlocutory at any time before judgment in the action. Hense, it was immaterial it was rule 1 or 4 was applied provided the learned trial judge prayer sought by the applicant.

I also read HENRY STEPHENS ENG. CO. LTD V. COMPETE HOMETENT NIG LTD (supra) which the earlier case of Appeal of NWAKONOBI v. udeorah (supra) followed and used as an authority. In that case by virtue of Sections 53, and 54 of the sale of Goods Law cap. 125 Lagos state a buyer can sue a seller for damages where there is a breach of condition or warranty. The judgments of the trial High, court and the court of Appeal in which reliance was plead on Section 14 (3) of the sale of Goods Act 1893, England (being a statue of General Application) were nevertheless valid since the judgments were in accordance with Section 15 (b) 53 and 54 of the sale of Goods Law Cap. 125 of Lagos State. See further FALOBI V. FALOBI (1976) N.M.L.R. 169.

The foregoing cases did not decide that the court "can rely on a bad reason or wrong law to give a good decision", for whatever that means. The argument of the Learned counsel for the 1st Respondent is fundamentally flawed for relying on these case for his submissions above. As appellate court, in exercise of its judicial powers under S. 6 (1) (b) and general power under section 15 of the court of Appeal Act 2004, this court has supervisory ''powers and is interested both in the decision in the lower court and the reason for that decision if it has to determine the real question in controversy in the appeal between the parties. This court is not only to decide that by a building lease of 16/3/1979 the property, the subject matter of the appeal, properly and validly passed to the 1st Respondent and also whether the sale by whichever authority was done in accordance with the relevant law applicable thereon, in the circumstance. It is trite law that the decision of a court must be based only upon the facts and materials placed before the court as we, as the issues raised by the parties in their pleadings. Findings of the court are based on facts and law. They are neither arbitrary nor speculative: See CHIEF ONYIA V. LOUIS ONIA (supra) A.C.B PLC. v. EMOSTRADE LTD (2002) 8 NWLR (pt. 770) 501 and ORHE v. NEPA (supra). I do not agree with the learned counsel for the 1st Respondent that this issue 3 (which was formulated by the Appellant and adopted by the 1st Respondent/arising for grounds III, IV and V grounds of appeal) is purely academic. It is not. There are ample facts on record to substantiate the follow-up argument beyond the mere pronouncement of the trial judge on the question of pre-existing lease." It is noteworthy that the 1st Respondent also made this an issue, although they were in total agreement with the Appellants submission on the issue that the purported sale of the property supported by 'Exhibit F' the Building Lease, Exh. "G" Chief Land officer's letter conveying the sale to the 1st, Respondent, are invalid null and void and of no legal effect.

In sum this issue No. 3 is resolved in favour of the Appellant.

I must observe this. Perhaps, it may assist the he Authorities in state in charge of the property administration to avoid a quagmire of this sort. There ought not to have been two allocations of the property (multiple allocations). It creates unhealthy competing interests. However my careful consideration that the Appellant had better right to occupy the property in dispute than the 1st Respondent. The Appellant had gone into full possession of the property and carried out extensive and expensive renovation of the said property and remained in physical possession and put tenants who have been paying rents.

Having taken much pains to consider the three issues canvassed by the parties and resolving sale in favour of the Appellant, the end result, is that the appear is meritorious. It succeeds. The judgment of the lower court delivered on 17/1/2002 in this case is set aside. In its place I hereby enter judgment in favour of the Appellant granting his claims in paragraph 26 (a) (b) and (c) of the statement of claim fired on 17/9/92. I dismiss the counter claim of the 1st Respondent in paragraph 15 (1) for declaration that he is the Leasee and beneficial owner of property in dispute, filed on 12/4/95. For the avoidance of doubt the decision of the learned trial Judge which dismissed the claims of the 1st Respondent in paragraph 15 (ii) and (iii) N600,000 for use and occupation/rents and possession respectively of the counter-claim is hereby upheld. I assess costs at N50, 000 against the 1st Respondent but in favour of the Appellant.

ISTIFANUS THOMAS, J.C.A.: I have had the privilege of reading in advance, the lead judgment of my learned brother, GALADIMA, JCA, (OFR) just delivered; and I am in total agreement that, the issues of admissibility of primary and secondary documents is clearly guided by the previsions of Sections 93, 96 and 97 of the Evidence Act, 2004.

It is settled law that the proof of documents must strictly be by primary evidence except in cases stipulated under section 97 of the Evidence Act where secondary evidence can then be tendered and will be accepted. Under Section 94(1) of the Act, the meaning of primary evidence is defined.

It reads as follows.

"s.94 (1)

Primary evidence means the document itself produced for the inspection of the court."

At the trial court the plaintiff, now appellant, pleaded in his paragraphs 10 & 11 of the statement of claim, the primary evidence which was issued to him by the Military Governor of Rivers state. It reads at page 9 of the record as follows:-

"10 plaintiffs aver that the Military Governor of Rivers State approved his application and endorsed same on plaintiff's letter of 5th June, 1974.

11 plaintiff also avers that by a letter ref. No A/219/T/17 dated 10th July, 1974 and addressed to the plaintiff, he was informed that the Military Governor had approved the allocation of the premises at No 33, Okoji to him.

It was the original letter of grant given to the appellant, that was tendered, but the trial court, who admitted same, and there was no any objection by the respondent, later refused to act on it.

Once a primary document is pleaded and established by proof of evidence it can not be rejected upon, see Isaac Omorege vs. Lawani (1980) 3-4 S.C 108. Nigeria Maritime Services Ltd v. Alhaji B. Afolabi (1978) 2 S.C. 79.

In the instant appeal, it was a grievous error on the part of the trial judge who refused to consider the primary evidence relied and proved by the appellant. Based on the little contribution and the fuller detailed reasoning and conclusions in the lead judgment, the appeal being meritorious, is hereby allowed. I set aside the decision of the trial judge and enter judgment in favour of the plaintiff, against appellant. I abide with consequential orders, including costs.

EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother, SULEIMAN GALADIMA (OFR), JCA. I entirely agree with the judgment.

The Appellant pleaded Exhibit 'B', his letter of allocation of the disputed property in paragraph 11 of the statement of claim. The 1st Defendant/Respondent made some feeble efforts at joining issues with the Plaintiff/Appellant on this document in paragraph 6 of the amended statement of Defence by putting the plaintiff to the strictest proof of this document and averring further that 1st Defendant being an outsider, these purported exchange of letters between the then Military Governor of Rivers State and the Plaintiff, if any, as stated in such friendly letters dated 5.6.74 and 10.7.74 were not brought to his notice and that the letters could not confer title on the Plaintiff over the disputed property.

From the state of pleadings the document, Exhibit 'B', was not only relevant, it was it material piece of evidence. No law precludes its admission. Thus as stated by the learned S.T. HON in his book LAW OF EVIDENCE IN NIGERIA: SUBSTANTIVE AND PROCEDURAL, once a piece of evidence is relevant and admissible it will be admitted without much ado. It must be admissible having regard to the pleaded facts, if no law precludes its admission. No provision of the Evidence Act or any other law precludes admissibility of the original of a letter of allocation addressed to a private individual by a public officer. On the contrary section 63 of the Evidence Act ordains the production of the original of such document as the best evidence with the greatest certainty of the facts in issue. Primary evidence, by the production of the original document pleaded, is the best proof of the contents of such a document.

Exhibit 'B' was admitted in evidence without objection (page 29 of the Record). This fact viz-a-viz paragraph 6 of the amended statement of defence of the 1st Defendant should have informed the learned trial Judge that Exhibit 'B' was not in dispute and that it should have been treated as an admission under section 75 of Evidence Act. since the defence expressly did not oppose the procedure of proving the content of the public document by the production of its original copy they are estopped from subsequently complaining that it is; only the duly certified true copy, secondary evidence, of the document that is admissible and not the original.

Exhibit 'B" which the learned trial Judge was cajoled out acting of, is of the best evidence establishing the priority of the alienation of the disputed property by the same grantor. It is arso the proof that the common grantor having first conveyed his interest in the property was caught by the principle of nemo dat quod non habet' Exhibit 'B' therefore was the super structure on which the two principles of priority and nemo dat guod non habet (i.e that no one can give that which he does not have) rested in favour of the Appellant. The allocation to the Appellant of the disputed property vide Exhibit 'B' was first in time to the subsequent grant of leasehold to the 1st Defendant/Respondent. The allocation to the Appellant vide Exhibit 'B', as long as it subsisted, is evidence that the Government of Rivers state, having divested itself of interest in the property, no longer had any existing right in the said property to convey to the 1st Respondent, albeit by a further lease. For the subsequent leaser to the 1st Respondent to be valid there must be a strong evidence of revocation of the grant in Exhibit 'B' done in accordance with the due process of law and upon payment of adequate compensation to the Appellant by the Government of Rivers State under section 44 of the 1999 constitution and section 28 of Land Use Act. See OSHO v. FOREIGN FINANCE CORP. (1991) 4 NWLR [pt.184] 157

I agree, in terms; of the lead judgment, with my learned brother that there is substance in the appeal. I allow the appeal and hereby abide by the consequential orders made in the lead judgment, including order as to costs.

 

Appearances

 

B.E.I. NWOFOR (SAN) with I.D. OKWUEGO (Mrs.) AND Uche Okwukwu Esq                                   For the Appelants

 

M. O. BIANEYIN (JNR) Esq. for the 1st Respondent. 
2nd and 3rd RESPONDENTS (unrepresented, and filed no brief of argument).                                    For the Respondents