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