CORAM

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PARTIES

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ABUBAKAR MOHAMMED

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KENANA MOMOH

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent brought an action at the High Court of Edo State against the Appellant in respect to the landed property located at No. 2 Uchi Market Road, Auchi containing a storey building of 20 rooms and a bungalow containing 8 rooms. Vide his Writ of Summons he sought for declarations; Possession; Order to render account; Perpetual Injunction; and General Damages. The Respondent’s case was that his late father, Alhaji Kashetu Momoh acquired a piece of land measuring 100ft by 100ft in 1972 from one Alhaji Bawa Garuba and subsequently obtained a Certificate of Occupancy in respect of the said land from the Government of then Bendel State. He had three wives, one of which was the mother of the Appellant, who already had six children before marrying the Respondent’s father in 1972 and had no child for the Respondent’s father. The Respondent’s father commenced the building of the house in dispute on the land in 1972 and completed same in 1981 and lived thereon with his families, including the Appellant’s mother, until his death in 1993. After the death of his father, the Respondent allowed the Appellant’s mother to continue to live on the property as a mother figure to the Respondent’s younger siblings and collected rents from the house to enable her use same for their upkeep. The Appellant came to live in the property along with his mother at her marriage to the Respondent’s father. In 2001, the Appellant’s mother died and the Appellant and the Respondent’s younger siblings continued to live on the property in dispute. The Respondent being the eldest surviving son of his late Father is under the Aviele Native law Custom entitled to share the said property to his younger siblings and the family decided to do so but the Appellant who had since January been collecting rents from the property bluntly refused and threatened to kill the Respondent if he dares to enter the said property. In his defense, the Appellant claim was that whilst the Respondent’s father acquired a 70ft by 60ft parcel of land from Alhaji Bawa Garuba, the Appellant’s mother acquired the adjoining land measuring 30ft by 40ft from the Auchi community wherein a document was issued by the community in acknowledgement of this acquisition but that it has been fraudulently altered to read 100ft by 100ft, property of the Respondent’s father. The Appellant’s mother then proceeded to build the storey building of 20 rooms on the portion of the land acquired by her, while the Respondent’s father built a bungalow of 8 rooms on the portion of the land acquired by him and measuring 70ft by 60ft. The land sold to the Appellant’s mother originally belonged to the Auchi community and not to the vendor of the land to the Respondent’s father though they are adjoining lands. At the end of the trial, the lower Court granted some of the claims of the Respondent against the Appellant. Dissatisfied by this, the Appellant had appealed against same to the Court of Appeal vide his Notice of Appeal containing five Grounds of Appeal. Subsequently, the Appellant sought and obtained the leave of the Court and filed additional three Grounds of Appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the trial court was right to hold that, from the evidence, oral and documentary, placed before it and on the preponderance of evidence, the Plaintiff has proved his claim as required by law?

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RATIONES DECIDENDI

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RE-EVALUATION OF EVIDENCE – CIRCUMSTANCE WHEN THE NEED FOR RE-EVALUATION OF EVIDENCE WILL ARISE

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However, it is the law that it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re – evaluating the evidence and interfering with correct findings of a trial court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217)347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709;Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888)520.
Thus, even where the appellate Court comes to the conclusion that there is need to re – evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46”.

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RE-EVALUATION OF EVIDENCE – INSTANCE WHEN AN APPELLATE COURT IS IN A GOOD POSITION AS THE TRIAL COURT TO INTERVENE TO RE-EVALUATE THE EVIDENCE IN THE PRINTED RECORD

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“It is also the law that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court was perverse and for this an appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the trial Court on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821; Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681”.-

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TITLE TO LAND – MODES OF PROVING TITLE TO LAND

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“My lords, in a claim for declaration of title to the land, it is settled law that in order to succeed the party so claiming must by credible evidence prove his root of tile to the land in dispute in one or more of the five methods of proof of title to land, namely: a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time, or, e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) AII FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) AII FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) AII FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
In Ezuchukwu v. Ukachukwa (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.”
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PLEADINGS – PARTIES ARE BOUND BY THEIR PLEADINGS AND MUST CONDUCT THEIR CASES WITHIN ITS CONFINES

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“In law the parties as well as the Court are bound by the pleadings and thus the parties are obligated and must conduct their cases within the confines of their pleadings. So also is the Court obliged to stay within the issues as joined by the parties and therefore, cannot go outside those issues to make findings on facts not in issue. See Olodo V. Josiah (2011) 190 LRCN 34 @ p. 52. See also Aminu & Ors. V. Hassan & Ors (2014) 231 LRCN 84 @ p. 118.; Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwe V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.
I will therefore, take all the facts on which the parties are either ad idem in their pleadings or were not sufficiently traversed with material particulars as admitted and thus duly established in this appeal. See Nsiegbe V. Mgbemena ( 2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwe V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313, Akere V. Adesanya (1993) 1 NWLR (Pt. 288) 484; Smurtiff Ltd. V. MV. Gongola Hope (2002) 22 WRN 30. See also Solano V. Olusanya & Ors. (1975) 1 SC 35; Olubode V. Oyesina & Ors. ( 1977) 2 SC 97”.-

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EVIDENCE – DOCUMENTARY EVIDENCE VIS-À-VIS ORAL EVIDENCE

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“The parties led evidence, both oral and documentary before the Court below. It is the law, and there is no longer any dispute about it, that whenever there is before a Court oral and documentary evidence relating to any issue in dispute as joined by the parties in their pleadings, documentary evidence which being mostly earlier in time is more probable and is usually used as hangers on which to assess the veracity of oral evidence, which being latter in time may be manipulated and also be a mere afterthought. See Jinadu V. Esurombi – Aro (2009) 35 WRN 1. See also Okafor V. INEC (2010) 31 WRN 32 @ p. 39. –

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ALLEGATION OF FRAUD – PROOF OF AN ALLEGATION OF FRAUD

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“In law, allegation of fraud does not go to admissibility as in law without the admission of the document allegedly forged alongside the genuine document there is no way the Court can carry out its duty of comparing both to reach a finding on whether or not the alleged forgery was proved. In this wise, the admission of both Exhibits A and D is in order and proper but having admitted Exhibits A, D and J the Court below to evaluate the same properly when it failed to find that by Exhibits D and J, in particular, the dimension of land 100ft by 100ft as stated in Exhibit A was an altered version of Exhibit D as corroborated by Exhibit J, deposed to by the one person who must and should know the dimension of the land he acquired and stated it to be 70ft by 60ft.I therefore, consider Exhibit J, deposed to by the Respondent’s father in his life time and when there were no any issues concerning his title to his land,, as a solemn voice from the grave by the Respondent’s father which cannot be tempered with, neither by the Respondent, the Court below nor this Court.
It is now very obvious to me that contrary to the findings of the Court below, what truly emerged as the truth and correct facts as between the parties from the pleadings and evidence, both oral and documentary by the parties are that the land acquired by the Respondent’s father, and on which there is no dispute between the parties that he indeed acquired a land, measures 70ft by 60ft as deposed to by him in Exhibit J and supported by Exhibit D, the original deed of agreement in respect of the said land.
It is also a proved fact that Exhibit A was clearly altered to inaugurate a false claim to a land measuring 100ft by 100ft as opposed to the land measuring 70ft by 60ft acquired by the Respondent’s father in 1972 from one Alhaji Bawa Garuba and thus clearly amounted in law to forgery as alleged and proved by the Appellant against the Respondent. See Section 135 of the Evidence Act 2011. See also Nwobodo V. Onoh (1984) 1 SCNLR 1; Aigbadion V. The State (2000) 4 SC (Pt. 1) 1; Maune V. Abdul (2001) 4 NWLR (Pt. 702) 95; Agwasin V. Ejivumerwerhaye (2001) 9 NWLR (‘Pt. 716) 395; Olalomi Industries Ltd. V. NIDB (1992) 4NWLR (Pt.233) 91 @ p. 106.
Agreed, that the property in dispute, the 20 Rooms Story building is well known to the parties, yet the dimension of the land claimed by the Respondent remained unproved by him through Exhibit A on the face of Exhibits D and J, since the Respondent as PW1 is incapable in law to vary the contents of Exhibits D and J. See Durojaiye V. Continental Feeders Nig. Ltd (2001) 10 NWLR (Pt. 722) 657 @ p. 660.
It is also a fact proved that in 1972, when the Respondent’s father married the Appellant’s mother there was no 20 Rooms storey building into which she would have parked into with her children from her late husband and that the Respondent’s father only completed the building of his 8 Rooms Bungalow on his acquire land in 1973, which was one year after his marriage with the Appellant’s mother and there is, as deemed admitted by the Respondent, a demarcation by a parking space between the land on which the Respondent’s father built his 8 Rooms Bungalow and the land on which the 20 Rooms Story building was built.
There was no dispute as to the fact that the Appellant’s mother collected rents on the 20 Room Storey building without any hindrance from either the Respondent’s father or the Respondent, until her death in 1993 and that upon her death, and specifically from January 2001, the Appellant has been the one collecting rents on the 20 Room Storey building till date and there was never any time that either the Respondent’s father in his life time or the Respondent collected any rents on the 20 Room Storey building till date.
Thus, it is a clear and indisputable fact that the only un -partitioned family land or property to which the Respondent proved his entitlement, and without any disputations from the Appellant, is his late father’s 8 Rooms Bungalow built on the land he acquired in 1972 from Alhaji Bawa Garuba and measuring 70ft by 60ft.See Ogundairo V. Abeje (1967) LLR 9, where it was emphatically pronounced inter alia thus:
“The law is settled that family property is property which devolves from father to children and grandchildren under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole”
I therefore, find the claim by the Respondent that the contents of Exhibit J, an affidavit made by his late father as false and merely made to procure approval for a building plan as most dishonorable to the memory of his late father and I hold that such oral evidence by the PW1, which is contrary to the contents of Exhibit J, cannot be allowed to vary, contradict or subtract from the contents of Exhibit J. See Jinadu V. Esurombi – Aro (2009) 35 WRN 1. See also Okafor V. INEC (2010) 31 WRN 32 @ p. 39.-

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FINDINGS OF FACT – CIRCUMSTANCES WHEN AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACTS OF THE TRIAL COURT

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“My lords, the Court below failed to make use of the opportunity afforded it by law in seeing and listening to the witnesses to come to the right conclusion, this Court is under a legal duty to interfering with the findings of facts of the Court below, as I have already done, and re – evaluated the entirety of the evidence led as in the Record of Appeal and made the proper and correct findings of facts flowing from the evidence as led by the parties and I cannot but hold firmly that Respondent failed woefully to prove his claims against the Appellant. Consequently, I hold that the judgment of the Court below is perverse and thus liable to be set aside. See Nuraini Onitola & Anor V. AG. Lagos State (2005) 18 WRN 34 @ p. 41. See also Durojaiye V. Continental Feeders (Nig.) Ltd (2001) 10 NWLR (Pt. 722) 657 @ p. 660; Jinadu V. Esurombi – Aro (2009) 35 WRN 1; Okafor V. INEC (2010) 31 WRN 32 @ p. 39; Daggash V. Bulama (2004) All FWLR (Pt. 212)1660”. –

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ALLEGATION OF FRAUD – DUTY OF A PARTY IN ESTABLISHING AN ALLEGATION OF FRAUD

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“In arriving at the above finding that Exhibit A was clearly proved to be a forgery as alleged by the Appellant, on the face of Exhibits D and J, I am aware that in law an allegation of fraud is not a tea party, which one party merely alleges against the other party, and then folds his arms akimbo to see how the other party wriggles out of it. If he must succeed in his allegation of fraud, as the Appellant successfully did in this case, he must lead credible evidence in proof of such allegations, which being criminal in nature must be proved beyond reasonable doubt as required by law. See Section 135 of the Evidence Act 2011. See also Nwobodo V. Onoh (1984) 1 SCNLR 1; Aigbadion V. The State (2000) 4 SC (Pt. 1) 1; Maune V. Abdul (2001) 4 NWLR (Pt. 702) 95; Agwasin V.Ejivumerwerhaye (2001) 9 NWLR (‘Pt. 716) 395; Olalomi Industries Ltd. V. NIDB (1992)4 NWLR(Pt.233) [email protected].
The above position of the law is so because an allegation of fraud contained in a pleading of a party, no matter how seemingly grave, unless its particulars are duly pleaded and credible evidence led in support to prove it beyond reasonable doubt as required by law, it would be really of no moment and would remain unproved and therefore, would go to no issue. See Olufunmise v Falana (1990) 3 NWLR (‘Pt. 136) 1; See also Agbi V. Ogbeh (2006) 1 NWLR (Pt. 990) 65; Nwobodo V. Onoh (1984) 1 SCNLR 1; Nwanguma V Ikyande (1992) 8 NWLR (Pt. 258) 192; Ndorna Egbe V. ACB Plc. (2005,) 14 NWLR (Pt. 944) 79; Dlalomi Industries Ltd. V. N.I.D.B (2009) 16 NWLR (Pt. 1167 266; Omoboriowo V. Ajasin (1984) 1 SCNLR 108. –

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ALLEGATION OF FORGERY – WHETHER A DOCUMENT ON WHICH FORGERY IS ALLEGED CAN BE ADMITTED IN EVIDENCE

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“My lords, as I bring this judgment to a close, I thought I should pause here to observe that contrary to the very attractive submissions by the Appellant’s counsel as to the admissibility or otherwise of Exhibit A on grounds of allegation of fraud by the Appellant, in his pleadings and which due particulars were supplied, it is never the law that a document would be rendered inadmissible, if relevant and duly pleaded, merely on account of allegation of forgery against it by the other party. The law rather is that such a document against which forgery is alleged should be admitted in evidence along with the original authentic document so as to enable and afford the Court the opportunity to compare the same in order to arrive at a finding whether or not it was a forged document as alleged. It follows therefore, where a document alleged to have been forged is not admitted in evidence then it would be almost impossible and impracticable for the Court to make any proper finding on such an allegation. Thus, Exhibit A was on the face of Exhibit D in the light of the allegation of forgery against it properly admitted in evidence by the Court below. See Buhari V. Obasanjo (2005) 2NWLR (Pt. 910) 241 @ p. 416. See also Akinwe Victor Adesule V. Akinfolarin Mayowa & Ors (2011) LPELR – 3691 (CA). –

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DECISION OF COURT – WHEN IS A DECISION OF COURT SAID TO BE PERVERSE?

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“In law a decision of a Court would be regarded as perverse where amongst other reasons: A. It ignored the facts or evidence, or B. It misconceived the thrust of the case presented Or C. It took irrelevant matters into account which substantially forms the basis of its decision, or D. It went outside the issues contested by the parties to the extent of jeopardizing the merits of the case, or E. It committed various errors that faulted the judgment beyond redemption. See LBN V. Chimaeze (2014) 4 mjsc (Pt. 1) 58 @ pp. 72-73; Uwah V. Akpabio (2014)2 MJSC (Pt. 11) 108 @ p. 126; Anekwe V. Nweke (2014) 3 – 4 MISC 183. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016|Evidence Act 2011|

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CLICK HERE TO READ FULL JUDGMENT

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