MOHAMMED v. MOMOH (2020)

MOHAMMED v. MOMOH

(2020)LCN/14571(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/50/2012

RATIO

PLEADINGS: EVALUATION OF EVIDENCE.

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; Igago 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.
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.

In proof of the Respondent’s case, the Respondent testified as PW1. He stated inter alia that he is the first son of one Kashetu Momoh who died on 2/1/1993, who had 13 children from three women and that the Appellant’s mother was one of his father’s wives but had no children for him. He stated that his father owned the landed property at No. 2 Uchi Market Road, Auchi measuring 100ft by 100ft, which he bought from one Alhaji Baruwa Garuba and that his father surveyed the land and applied for a Certificate of occupancy from the Bendel State Government, which application was approved and same issued to his father. However, before then he had erected an 8 Room bungalow as well as a 20 Room storey building on the land, on which property his father lived before his death in 1993 and his title to the said property was never challenged by any person in his life time. He stated further that under the Aviele Native Law and Custom, he being the Senior son holds the property in trust until the property is shared among the surviving children of his late father. He reiterated that the Appellant was not a child of his father. His father exercised his right as the owner on the property, which he built singlehandedly and jointly with the Appellant’s mother. He denied altering the document relating to the land on which the property was built and maintained that the Appellant’s mother did not build the 20 Room Story building which was built by his father, in which the Appellant and his mother lived with his father and his siblings. He was cross examined and his attention was drawn to Exhibits A & D, in which the said land had different dimension but he insisted that the dimension was 100ft by 100ft and that the property was the property of his father’s family and not his personal property and that his father bought the entire land together as one.

PW2 was one Malik Momoh, a younger brother of the Respondent. He testified inter alia that his father was a big time contractor to the Old Mid-Western State Government and the Bendel State University but the Appellant’s mother was a petty trader who traded on dry fish and pepper and denied that she ever owned part of the land. He was cross examined and he maintained that the land was bought by his father in 1972, the very year the Appellant’s mother was married by his father.

In his defense, the Appellant testified as DW1. He stated inter alia that his mother was married to the Respondent’s father in his life time and had applied to the Otaru of Auchi through the Land Allotment Committee for land and was issued with a receipt showing the approval of the land to her measuring 40ft by 30ft. He stated that the land bought by the Respondent’s father measured 70ft by 60ft as personally deposed to by the Respondent’s father in Exhibit J and not 100ft by 100ft as being claimed by the Respondent and insisted that Exhibit A was altered as the measurement was erased and new 100ft by 100ft inserted as shown clearly in Exhibit D. He maintained that his mother who in her life time was a registered contractor with various institutions built on the land measuring 30ft by 40ft the 20 Room storey building, which belonged to her and prayed the Court below to set aside the Certificate of Occupancy and dismiss the Respondent’s claim. He was cross examined and he denied that his mother and her husband, the Respondent’s father, ever lived in the 20 Room story building. He reiterated that the 8 Room building belonged to the family of the Respondent and maintained that Exhibits A and D are the same document but Exhibit A is the altered and forged one.

DW2, was one Mahmud Garuba, a Legal Practitioner. He testified inter alia that his father, Bawa Garuba, was the one who sold land to the Respondent’s father and that he was very familiar with his father’s signature and that comparing Exhibits A and D, his father signed both maintained that the land sold by his father to the Respondent’s Father measured 60ft by 70ft. He was cross examined and he insisted that Exhibit D is not a forgery.

It was on the strength of the evidence, both oral and documentary, that the Court below granted some of the claims of the Respondent against the Appellant, holding inert alia thus:
“…In the present case, there appears to be no dispute as to the subject matter. The problem seems to be the dimension of the subject matter…There is evidence that the whole land measures 100ft by 100ft but though the Plaintiff claims his father owns it wholly, the Defendant claims that the Plaintiff’s father owns just 70ft x 60ft while his mother owns 40ft x 30ft…The Plaintiff tendered Exhibit ‘A’ as evidence of document of title to the land in question. Exhibit ‘A’ talks about land measuring 100ft by 100ft. Exhibit ‘D’ was also tendered through the Plaintiff. It is the same as Exhibit ‘A’ save for the fact that the dimension there is 70ft by 60ft…The Defendant is counter claiming and has to prove his own title and he has to prove that it is better than that of the Plaintiff…Going by the above, if the land is 100ft by 100ft, and the Plaintiff’s father owns 60ft by 70ft while the Defendant’s mother owns 40ft by 30ft, there is some land remaining which I agree with Plaintiff’s Counsel has not been accounted for. I must say that the Defendant’s claim at this point becomes incredible…The Plaintiff’s father on the other hand has a Certificate of Occupancy for the land measuring 100ft by 100ft…Exhibit C therefore is prima facie evidence that the Plaintiff’s father had exclusive possession of the land in dispute…On the issue of forgery, it is my view that it is not proved. No doubt Exhibit D talks about 60ft by 70ft whereas Exhibit ‘A’ talks about 100ft by 100ft. The 2 documents are the same and DW2 has confirmed that both were signed by the Seller who was his father. The Plaintiff explained that his father applied with the 70ft by 60ft dimension in order to get the approval for the building plan of the 20 Room storey building. I believe this piece of evidence and I hold that it solves the discrepancy in the two documents…Plaintiff’s evidence is that his father swore to Exhibit J to enable him apply for a building approval…There is evidence that the Defendant has been living in the property since he was young. He cannot therefore be said to have trespassed on the land.” See pages 79 – 98 of the Record of Appeal

It is against the above findings that the Appellants had approached this Court in this Appeal contending that these findings were perverse in that the claims of the Respondents were not proved by the fraudulent title document as in Exhibit A by virtue of Exhibits D and J, and the resultant invalid Certificate of Occupancy, Exhibit C, issued to the Respondent’s father. On the other hand, the Respondent had contended that his claim to title to the land in dispute was proved fair and square on the credible evidence led by him and his witness and the document of title relied upon.

RATIO

PLEADINGS: CLAIM FOR DECLARATION OF TITLE TO THE LAND.

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 title 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 Ezukwu v. Ukachukwu (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.”

Now, a consideration of the sole issue, encompassing the Appellant’s three issues, would involve seeking and proffering answers to an amalgam of questions, on whose answers would lie the resolution of the sole issue. These questions are as follows; A: What is the dimension of the land acquired by the Respondent’s father in 1972 for Bawa Garuba? B: Who built and owned the 20 Room Storey building on the land in dispute? C. Was the Court below right when it held that the title to the land on which the 20 Room Story building in dispute was built belonged to the Respondent’s father and therefore, is the un – partitioned family property of the Respondent’s family?

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; Emegokwue 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; Emegokwue 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.

By paragraphs 5 and 8 of the Amended Statement of defense, the Appellant duly pleaded and furnished the particulars of fraud relating to the dimensions of the land acquired by the Respondent’s father as being 70ft by 60ft and the Certificate of Occupancy obtained on a different dimension of land by the Respondent’s father as 100ft by 100ft. The Appellant had also averred that the property in dispute, a 20 Room storey building, was built by his mother out of her resources as a big time Contractor to several Institutions and Firms on her land measuring 40ft by 30ft. He also averred that in the life time of the Respondent’s father he lived and died in the 8 Room Bungalow he built on his land measuring 70ft by 60ft but never ever lived in the 20 Room storey building on the 40ft by 30ft by his mother. He also averred that the 70ft by 60ft land on which the Respondent’s father build his 8 Room Bungalow is separated from the 40ft by 30ft land on which his mother built the 20 Room storey by a parking space dividing both lands. See Paragraphs 6, 7, 9 and 14 of the Amended Statement of Defense at pages 16 – 18 of the Record of Appeal.

Curiously, on the face of the above averments, the Respondent did not deny the averment in Paragraph 14 of the Amended Statement of Defense categorically stating that both lands are separated by a parking space, and is therefore, deemed admitted. The Respondent also averred that the 8 Room Bungalow was built between 1972 and 1973, the period his father got married to the mother of the Appellant and admitted the existence of Exhibit J, an affidavit made by his father stating the measurement of his own land to be 70fy by 60ft. See Paragraphs 1, 2(b) and 2(c) of the Amended Reply to the Amended Statement of Defense at pages 21 – 24 of the Record of Appeal.

Now, the Respondent had on his own volition averred that it was the Appellant’s mother that was collecting the rents on the 20 Room storey building until her death in 1993 and that since 2001, it is the Appellant that has been collecting rent on the 20 Rooms Storey building but that his father built the 8 Rooms Bungalow from 1972 – 1973 and also built the 20 Rooms Storey building from 1972 – 1981 but that the Appellant’s mother came with the Appellant to live in the property in dispute in 1972 upon her marriage to the Respondent’s father. See Paragraphs 7, 8, 20, 21, and 25 of the Amended Statement of Claim at pages 25 – 28 of the Record of Appeal.

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. Having taking time to calmly review the pleadings of the parties and having also dispassionately evaluated the entirety of the evidence led before the Court below as in the Record of Appeal, I find that the Court below did a very poor job of its duty of properly evaluating the evidence of the parties and ascribing due probative value and weight to them bearing in mind which of them was admissible, credible, cogent, relevant and proved and or admitted by the other party and thereby reached very erroneous conclusions and made findings of facts, on issue of facts as joined by the parties, unsupportable by both the pleadings and preponderance of the evidence led.
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. Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

ABUBAKAR MOHAMMED APPELANT(S)

And

KENANA MOMOH RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Edo State, Coram: Efe Ikponmwonba J., in Suit No. HAU/22/2007: Kenana Momoh V. Abubakar Mohammed, delivered on 20/10/2011, wherein some of the claims of the Respondent, as Claimant were granted against the Appellant, as Defendant.

The Appellant was thoroughly dissatisfied with the said judgment and had appealed against it to this Court vide his Notice of Appeal filed on 21/10/2011 on five grounds of appeal at pages 99 – 102 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court. Subsequently, the Appellant sought and obtained the leave of this Court granted on 10/3/2015 and filed additional three grounds of appeal. The Appellant’s brief was filed on 24/3/2015 but deemed properly filed on 15/9/2020. The Respondent’s brief was filed on 10/10/2019 but deemed properly filed on 15/9/2020. The Appellant’s reply brief was filed 17/1/2020 but deemed properly filed on 15/9/2020.

At the hearing of this Appeal on 15/9/2020, A. A. Atemoagbe Esq., learned counsel for the Appellant,

appearing with A. Omiogbemi Esq., adopted the Appellant’s brief and Appellant’s reply brief as their arguments and urged the Court to allow the appeal and set aside the judgment of the Court and dismiss the claims of the Respondent. On their part, Mrs. E. Igogo learned counsel for the Respondent, appearing with I. O. Ohwojeheri Esq., adopted the Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Writ of Summons filed on 5/7/2007, the Respondent as Claimants before the Court below claimed against the Appellant as Defendant, the following reliefs, namely:
1. A declaration that the property known and called No. 2 Uchi Market Road, Auchi containing a storey building of 20 rooms and a bungalow containing 8 rooms is an un-partitioned family property of Kashetu Momoh Family of Agbede, Etsako West Local Government Area, Edo State.
2. A declaration that under the Aviele Native Law and Custom the Plaintiff who is the head of the Kaslectu Momoh Family holds No.2 Uchi Market Road, Auchi in trust for himself and the surviving children of late Kashetu Momoh until

the said property is shared among the surviving children of late Kashetu Momoh.
3 Possession of No. 2 Uchi Market Road, Auchi.
4. An Order directing the Defendant to render account of the rent collected by him from No 2 Uchi Market Road from the 1st January 2002 till judgment is given in this suit.
5. Perpetual injunction restraining the Defendant, his servants, Agents and/or privies from further trespass on No. 2 Uchi Market Road, Auchi.
6. The sum of N2, 000,000. 00 being general damages for trespass. See pages 1 – 2 of the Record of Appeal.

The parties filed and exchanged pleadings, which were subsequently amended and the matter proceeded to trial. At the trial, the Respondent called two witnesses and tendered several documents admitted in evidence as Exhibits. The Appellant also called two witnesses and tendered some documents admitted in evidence as Exhibits. At the conclusion of trial and addresses by counsel, the Court below delivered its judgment on 20/10/2011, granting some of the claims of the Respondent against the Appellant, hence this appeal. See pages 79 – 98 of the Record of Appeal.
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BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent, as Claimant before the Court below, as can be gleaned from his pleadings and evidence, oral and documentary led at the trial as in the Record of Appeal, was that the Respondent’s 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 form the Government of then Bendel State. He had three wives, one of which was the mother of the Appellant, who though having six children of her own at the time of her marriage to the Respondent’s father in 1972 as a widow did not have any child for the Respondent’s father. The Respondent 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 the 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 to dare enter the said property, wherein he occupies along with his mistress only two rooms. See pages 1- 7; 12 – 15; 21 – 24; 25 – 29 of the Record of Appeal.

On the other hand, the gist of the case of the Appellant, as Defendant as can be gleaned from his pleadings and evidence, oral and documentary led at the trial as in the Record of Appeal, was that whilst the Respondent’s father acquired a 70ft by 60ft piece or 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 and the 70ft by 60ft land acquired by the Respondent’s father but fraudulently altered to read 100ft by 100ft by the Respondent or whoever wanted to rely on it. 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. The Appellant’s mother was in her life time a successful contractor from where she raised the need funds to build the property now put in dispute by the Respondent. See pages 8- 10; 16 – 18 of the Record of Appeal

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the eight grounds of appeal, namely:
1. Whether the trial Court was right to have admitted and granted title to the

Respondent on a fraudulent and inadmissible title document? (Distilled from Ground 1, 2 and 8)
2. Whether the trial Court was right to have granted title to the Respondent when he could not prove the actual dimension of the land he was laying claim to? (Distilled from Grounds 3, 4 and 6)
3. Whether the trial Court was right in its evaluation of evidence when it came to the conclusion that two deeds of conveyance were executed by Alhaji Bawa Garuba (Respondent father’s vendor), and thereby knocked off the bottom of the Appellant’s case? (Distilled from grounds 7 of the grounds of appeal)

In the Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, namely:
“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?”

I have taken time to review the pleadings and evaluate the evidence of the parties and considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court

below and it does appear to me that the sole issue for determination as distilled in the Respondent’s brief represents the real issue for determination in this appeal, a consideration of which, in my view, would invariably involve the consideration of the three issues as distilled in the Appellant’s brief.

SOLE ISSUE
“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?”

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that the Court below was in grave error to have admitted and relied upon a fraudulent and inadmissible piece of documentary evidence to grant title to the Respondent and contended that in law it is illegal for a Court to act on a fraudulent document and urged the Court to hold that Exhibit A, a mere photocopy of a public document, a purported altered title document of the Respondent was inadmissible in evidence and having been wrongfully admitted in evidence should be expunged and the perverse findings

of the Court below based on it be set aside and to allow the Appeal and dismiss the Respondent’s Suit. Counsel referred to Sections 89(e); 90(1)(c); 102(b) of the Evidence Act 2011 and relied onShobajo V. Ikotun (2003) FWLR (Pt. 172) 1751 @ p. 1754; Cardoso V. Daniel (1951 – 1976) VOL. 4 SCJE (1 SCJE) 384 @ p. 385.

It was further Submitted Exhibit A having been shown to have been fraudulently altered as to the dimensions of the land, the Court below was in grave error, when contrary to the trite position of the law that oral evidence cannot be used to vary the contents of a document. It used oral evidence to conclude that the vendor, one Alhaji Bawa Garuba, signed two deeds of documents for the same land with different dimensions and contended that such a conclusion was at variance with the pleadings and evidence led by both parties and could not have knocked off the defense of the Appellant as was erroneously held by the Court below and thereby occasioned a miscarriage of justice and urged the Court to set aside this perverse finding and allow the appeal.

On his issue two, learned counsel for the Appellant had submitted that in a claim for

declaration of title, having regards to the reliefs claimed by the Respondent, it is the duty of the Claimant to show the actual dimension of the land claimed and contended that in law the Claimant must satisfy the Court of this by credible evidence even in the face of an admission by the adverse party and urged the Court to hold that by Exhibit D, the original deed of agreement, and Exhibit J, an Affidavit deposed to by the Respondent’s father showing the measurement of the land he acquired as 70ft by 60ft, the Court below was in grave error to use oral evidence of the Respondent to vary the contents of these documents and to set aside the perverse findings and allow the appeal and dismiss the Respondent’s Suit. Counsel relied on Shoshai Gambo V. Zindul Turdam (1993) 6 NWLR (Pt. 300) 510.

It was further submitted that the evidence by the Respondent that in Exhibit J his father had reduced the dimensions of the land solely for the purposes of obtaining a building plan approval was not pleaded and thus ought not to go to any issue and contended that there is neither any custom or law which permits a land owner to reduce the extent of his land when he

wants to obtain an approved building plan and urged the Court to hold that at best the Respondent’s father had lied on Oath and the case of the Respondent built on such lies discountenanced than being granted by the Court below.

On his issue three, learned counsel for the Appellant had submitted that in law, evaluation of evidence is the exclusive preserve of a trial Court and when it makes use of the opportunity afforded it by law in seeing and listening to the witnesses in the course of trial and come to the right conclusion, the appellate Court will have no business in interfering with the findings of facts of a trial Court, and contended that, but where a trial Court abuses the privilege or right as stated above, the appellate Court will properly interfere with the findings of facts of a trial Court and re – evaluate such evidence where the materials are properly placed before the appellate Court and urged the Court to hold that the Court below having abused the privilege of listening and watching the demeanor of the witnesses and failed to evaluate properly the evidence adduced before it, this Court should intervene to re- evaluate the evidence

as in the Record of Appeal and come to the correct conclusion that the Respondent failed to prove his claims against the Appellant and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Nuraini Onitola & Anor V. AG. Lagos State (2005) 18 WRN 34 @ p. 41; 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.

It was also submitted that the trial Court in its evaluation of evidence jumped and/or shifted to the case of the Appellant when the onus has not shifted due to unresolved issue of measurement of the land given in evidence by the Respondent as a result of the documentary evidence, Exhibits D and J, tendered by the Appellant and contended that the consideration by the Court below of the purported weakness of the defense of the Appellant had not arisen and urged the Court to hold since fraudulent alteration of the document was alleged and proved, the Court below was in grave error to have awarded the 100ft by 100ft to the Respondent and to set aside

this finding and allow the appeal and dismiss the Respondent’s Suit for lacking in merit.

RESPONDENTS’ COUNSEL SUBMISSIONS
On the sole issue, learned counsel for the Respondent had submitted that in civil matters are determined on the preponderance of evidence and contended that the Respondent has proved his claim against the Appellant as required by law and urged the Court to hold that the Court below having duly carried out its to evaluate the evidence and weigh them in context of the surrounding circumstances and made correct findings of facts, an appellate Court would not interfere with such correct findings of facts and to affirm the correct findings of facts of the Court below and dismiss the Appeal for lacking in merit. Counsel relied onUkeje V. Ukeje (2015) EJSC (Vol. 3) 1-@ p. 75; Ogbu V. Wokoma (2005) 14 NWLR (Pt. 944) 118; Owie V. Ighiwi (2005) All FWLR (Pt. 248) 1762 @ pp. 1774 – 1774.

It was also submitted that Exhibit A was admissible and was properly admitted by the Court below along with Exhibit E, a material copy of Exhibit A produced by the Respondent and contended that in the circumstances since the existence of

Exhibit A had been admitted by the Appellant there was in law no further need to prove it and urged the Court to hold that on the face of Exhibit A coupled with Exhibit C, a Certificate of Occupancy, issued in favor of the Respondent’s father for the land measuring 100ft by 100ft, it amounted to a prima facie evidence and raises the presumption that the holder is in actual possession and has a right of occupancy over the land in dispute and to dismiss the Appeal and affirm the judgment of the Court below. Counsel referred to Section 114(1) of the Evidence Act 2011 and relied on Jikantoro V. Dantoro (2004) All FWLR (Pt. 216) 390 @ p. 394; Ukeje V. Ukeje (2015) EJSC (Vol. 3) 1 @ p. 72; Union Bank of Nig. Plc. V. Astra Builders (W/A) Ltd (2010) 5NWLR (Pt. 1186) 1; Imana V. Robinson (1979) 12 NSCC 1.

It was further submitted that the onus was on the Appellant who had alleged that the Certificate of Occupancy was surreptitiously obtained and had counter – claimed that the said certificate be set aside and/or revoked to prove his allegation since in law, it is he who alleges that must prove and it is enough merely to make an allegation and contended that the

Appellant failed to prove his allegation as was rightly held by the Court below and urged the Court to affirm the correct findings of the Court below and dismiss the Appeal for lacking in merit. Counsel relied on Ogunleye V. Oni (1990) 2 NWLR (Pt. 135) 780.

It was also further submitted that at the trial the Appellant conceded that the land measuring 70ft by 60ft belonged to the Respondent’s plaintiff’s father and contended that the Appellant failed to produce and prove by any relevant document or credible and cogent evidence that his mother was the owner of the 30ft by 40ft allegedly remaining of the total of 100ft by 100ft and urged the Court to hold that the Appellant having failed to prove his counter claim, was in law not entitled to any relief against the Respondent and to dismiss the Appeal for lacking in merit. Counsel relied on Garba V. Yakasai (2006) All FWLR (Pt. 317) 492 @ p. 495; Odumosu V. Oluwole (2004) All FWLR (Pt. 191) 1628 @ p. 1631.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant merely rehashed and reiterated his earlier submissions in the Appellant’s

brief, which is not the purpose and purport of a reply brief. The reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief, is not and cannot be an avenue for the Appellant to re – argue his appeal or merely to have second bite at the cherry.
The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus:
“The Appellant may also, if

necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief”
See Olafisoye V. FRN 2004 1 SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ajileye V. Fakayode (1998) 4 NWLR (Pt. 545) 184; Agwasim V. Ejivumerwerhaye (2001) 9 NWLR (Pt. 718) 395; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA)
I have gone through the gamut of the reply brief of the Appellant and I find that it failed to meet the requirements of a reply brief. Indeed, it brought nothing worth anything to the table in this Appeal that has not already been submitted upon in the Appellant’s brief. In the circumstances therefore, I hereby un-hesitantly discountenance the Appellant’s brief in its entirety as going to no issue in this Appeal.

RESOLUTION OF THE SOLE ISSUE
My lords, on a proper scrutiny of the entirety of the processes in this Appeal, it appears to me that

the real crux of this Appeal is whether or not proper evaluations were carried out and whether or not the findings and decisions arrived at the Court below were correct on the face of the issues as joined by the parties in their pleadings and the evidence led thereon.

Now, when in an appeal it is alleged that the judgment appealed against is against the weight of evidence, as in ground six of the notice of appeal, it is simply a call on this Court to review and re – evaluate the evidence in the printed record to determine if the Court below properly evaluated the evidence and made correct findings borne out by the evidence as led by the parties. 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; Igago 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.
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.

Bendel State Government, which application was approved and same issued to his father. However, before then he had erected an 8 Room bungalow as well as a 20 Room storey building on the land, on which property his father lived before his death in 1993 and his title to the said property was never challenged by any person in his life time. He stated further that under the Aviele Native Law and Custom, he being the Senior son holds the property in trust until the property is shared among the surviving children of his late father. He reiterated that the Appellant was not a child of his father. His father exercised his right as the owner on the property, which he built singlehandedly and jointly with the Appellant’s mother. He denied altering the document relating to the land on which the property was built and maintained that the Appellant’s mother did not build the 20 Room Story building which was built by his father, in which the Appellant and his mother lived with his father and his siblings. He was cross examined and his attention was drawn to Exhibits A & D, in which the said land had different dimension but he insisted that the dimension was

100ft by 100ft and that the property was the property of his father’s family and not his personal property and that his father bought the entire land together as one.

100ft as being claimed by the Respondent and insisted that Exhibit A was altered as the measurement was erased and new 100ft by 100ft inserted as shown clearly in Exhibit D. He maintained that his mother who in her life time was a registered contractor with various institutions built on the land measuring 30ft by 40ft the 20 Room storey building, which belonged to her and prayed the Court below to set aside the Certificate of Occupancy and dismiss the Respondent’s claim. He was cross examined and he denied that his mother and her husband, the Respondent’s father, ever lived in the 20 Room story building. He reiterated that the 8 Room building belonged to the family of the Respondent and maintained that Exhibits A and D are the same document but Exhibit A is the altered and forged one.

measured 60ft by 70ft. He was cross examined and he insisted that Exhibit D is not a forgery.

Plaintiff’s father owns 60ft by 70ft while the Defendant’s mother owns 40ft by 30ft, there is some land remaining which I agree with Plaintiff’s Counsel has not been accounted for. I must say that the Defendant’s claim at this point becomes incredible…The Plaintiff’s father on the other hand has a Certificate of Occupancy for the land measuring 100ft by 100ft…Exhibit C therefore is prima facie evidence that the Plaintiff’s father had exclusive possession of the land in dispute…On the issue of forgery, it is my view that it is not proved. No doubt Exhibit D talks about 60ft by 70ft whereas Exhibit ‘A’ talks about 100ft by 100ft. The 2 documents are the same and DW2 has confirmed that both were signed by the Seller who was his father. The Plaintiff explained that his father applied with the 70ft by 60ft dimension in order to get the approval for the building plan of the 20 Room storey building. I believe this piece of evidence and I hold that it solves the discrepancy in the two documents…Plaintiff’s evidence is that his father swore to Exhibit J to enable him apply for a building approval…There is evidence that the Defendant has

been living in the property since he was young. He cannot therefore be said to have trespassed on the land.” See pages 79 – 98 of the Record of Appeal

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 Ezukwu v. Ukachukwu (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.”

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; Emegokwue 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; Emegokwue 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.

land by the Respondent’s father as 100ft by 100ft. The Appellant had also averred that the property in dispute, a 20 Room storey building, was built by his mother out of her resources as a big time Contractor to several Institutions and Firms on her land measuring 40ft by 30ft. He also averred that in the life time of the Respondent’s father he lived and died in the 8 Room Bungalow he built on his land measuring 70ft by 60ft but never ever lived in the 20 Room storey building on the 40ft by 30ft by his mother. He also averred that the 70ft by 60ft land on which the Respondent’s father build his 8 Room Bungalow is separated from the 40ft by 30ft land on which his mother built the 20 Room storey by a parking space dividing both lands. See Paragraphs 6, 7, 9 and 14 of the Amended Statement of Defense at pages 16 – 18 of the Record of Appeal.

built between 1972 and 1973, the period his father got married to the mother of the Appellant and admitted the existence of Exhibit J, an affidavit made by his father stating the measurement of his own land to be 70fy by 60ft. See Paragraphs 1, 2(b) and 2(c) of the Amended Reply to the Amended Statement of Defense at pages 21 – 24 of the Record of Appeal.

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.

Having taking time to calmly review the pleadings of the parties and having also dispassionately evaluated the entirety of the evidence led before the Court below as in the Record of Appeal, I find that the Court below did a very poor job of its duty of properly evaluating the evidence of the parties and ascribing due probative value and weight to them bearing in mind which of them was admissible, credible, cogent, relevant and proved and or admitted by the other party and thereby reached very erroneous conclusions and made findings of facts, on issue of facts as joined by the parties, unsupportable by both the pleadings and preponderance of the evidence led.
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 76ft 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.
I consider the contents of Exhibit J, coming as it were from the grave as the voice of truth as declared on oath by the Respondent’s late father, which remains solemn and represents the whole truth of the measurement, size and dimensions of the land acquired by the Respondent’s father in 1972 from his vendor Gawa Garuba, whose son the DW2, minced no word in confirming that what his father sold to the Respondent’s father was a land measuring 60ft by 70ft and not 100ft by 100ft as was claimed by the Respondent. .
Now, in the light of the above glaringly obvious finding of facts, which the Court below ought duly to have found as duly established facts if it had properly evaluated the

entirety of the evidence led by the parties before it, but which it failed to so do, did the Respondent prove his title, through his father, to the land on which the 20 Room Storey building was built as found by the Court below? I think not!
I therefore, cannot but agree completely with the learned counsel for the Appellant when he submitted quite aptly and unassailably too that the Court below was in grave error to have relied upon a Exhibit A, a fraudulent document, to grant title in respect of the property in dispute to the Respondent, and if I may add why shutting its eye to the devastating legal effect of Exhibits D and J on Exhibit A and the entire claims of the Respondent against the Appellant, which was thereby rendered unproved.

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 form

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.

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) 4NWLR (Pt.233) 91@p.106.
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 Ikyaande(1992) 8 NWLR (Pt. 258) 192; Ndoma Egba V. ACB Plc. (2005) 14 NWLR (Pt. 944) 79; Olalomi Industries Ltd. V. N.I.D.B (2009) 16 NWLR (Pt. 1167 266; Omoboriowo V. Ajasin (1984) 1 SCNLR 108.
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).

I hold, therefore, that the

finding by the Court below that the property in dispute, the 20 Room Storey building, is the un – partitioned family property of the Respondent’s family against the Appellant was not supported by any iota of evidence, and was therefore, perverse. 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 UBN 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 MJSC 183.

In the circumstances therefore, the Court below was in grave error and wrong in its finding of facts and conclusions reached in granting some of the claims of the Respondent, who failed to prove his case, against the Appellant. Consequently, the sole issue is hereby resolved in favor of the

Appellant against Respondent.

On the whole therefore, having resolved the sole issue in this appeal in favor of the Appellant against the Respondent, I hold firmly that this Appeal has merit and ought to be allowed. Consequently, I hereby so allow it.

In the result, the judgment of the High Court of Edo State, Coram: Coram: Efe Ikponmwonba J., in Suit No. HAU/22/2007: Kenana Momoh V. Abubakar Mohammed delivered on 20/10/2011, granting the claims of the Respondent against the Appellant is hereby set aside.

In its stead, Suit No. HAU/22/2007: Kenana Momoh V. Abubakar Mohammed is hereby dismissed for lacking in merit.
There shall be no Order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother, Biobele Abraham Georgewill; JCA.
I agree with the decision of my learned brother in its entirety.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have read before now, the lead Judgment of my lord, Georgewill, JCA, just delivered with which I entirely agree.
This appeal is meritorious and I also allow the appeal. I abide by the consequential orders

made in the lead judgment.

Appearances:

A. ATEMOAGBE, ESQ., with him, A. OMIOGBEMI, ESQ. For Appellant(s)

MRS. E. IGOGO, with him, I. O. OHWOJEHERI, ESQ. For Respondent(s)