A. OLADOSU BAMIKOLE v. IDOWU OLADELE & ANOR
(2010)LCN/3809(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of May, 2010
CA/I/118/2009
RATIO
APPEAL: GROUNDS OF APPEAL; WHETHER MORE THAN ONE ISSUE CAN BE FORMULATED FROM A GROUND OF APPEAL
The law is that while a single issue may be formulated from several grounds of appeal, it is undesirable to split a ground of appeal into more than one issue. The Supreme Court in: Agbetoba Vs Lagos State Executive Council (1991) 6 SCNJ 1 at 12 per Karibi-Whyte, JSC held:
“This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot be justifiably regarded as issues for determination.”
See also: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 at 332 lines 39 – 94; Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A – C: Adedipe Vs Theophilus (2005) 16 NWLR (951) 250 at 261 D – F. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAND LAW: TITLE TO LAND; ON WHOM LIES THE BURDEN OF PROVING TITLE
The law is settled that in an action for declaration of title to land the onus is on the claimant to prove his title. As correctly submitted by learned counsel for the appellant the claimant must succeed on the strength of his own case and not on the weakness of the defence, if any. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya Vs Aderanmu (2000) 13 WRN 104 at 115 lines 10 – 35. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAND LAW: WAYS OF ESTABLISHING TITLE TO LAND
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duty authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes anyone of them. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
APPEAL: RAISING FRESH ISSUES; EFFECT OF FAILURE TO OBTAIN LEAVE OF COURT BEFORE RAISING FRESH ISSUES
The law is-that where a fresh point or issue is raised for the first time on appeal, leave of the appellate court must be sought and obtained. Where no leave is obtained, the ground of appeal is incompetent and liable to be struck out. See: Tiza Vs Begha (2005) 15 NWLR (949) 616 at 647 D – E; Akinwale Vs Bank of the North (2004) 4 NWLR (704) 448 at 456 F – G. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
A. OLADOSU BAMIKOLE Appellant(s)
AND
1. IDOWU OLADELE
2. ALABA OLADELE Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State sitting at Osogbo delivered on 9th December 1996 granting a declaration of title, damages and injunction in favour of the plaintiff/respondent against the defendants. The appellant was the 1st defendant at the court below. He was dissatisfied with the judgment and filed a notice of appeal containing four grounds of appeal. The original plaintiff, Christopher Oladele died during the pendency of the suit at the lower court. He was substituted by the present respondents.
The brief facts of the case as may be discerned from the record of proceedings are as follows: It was the plaintiff’s case that he and a friend of his, late Ezekiel Owolabi purchased separate but adjoining plots of land from the 2nd defendant, Rev. Timothy A. Fakunle on 14/6/75. Agreements were prepared in respect of both sales. The plaintiff’s land was surveyed and a survey plan produced. Sometime in 1989 the plaintiff noticed some people depositing blocks of cement and sand on the land. He contacted the 2nd defendant who wrote a letter to the 1st defendant advising him that the land belonged to the plaintiff. The plaintiff was served with a copy of the letter. Work stopped on the land but resumed in February 1990, which prompted the plaintiff to lodge a second complaint with the 2nd defendant. The 2nd defendant again wrote to the 1st defendant and copied the plaintiff. The plaintiff also caused a letter to be written to the defendants by his solicitor. It was the plaintiff’s case that the 1st defendant and one Mr. Adeleke came to his house sometime in February 1990 where they met his wife and offered to buy the land for N5, 000.00. The offer was rejected. The 2nd defendant’s solicitor also came to his house and offered him N20, 000.00 for the land in the presence of his (plaintiff’s) friend, Rev. Omigbodun. He refused the offer and instituted an action against the defendants at the lower court.
The 1st defendant’s case was that he purchased the land in dispute from the 2nd defendant on 22/9/77 and surveyed it in 1989. He denied knowing Mr. Adeleke and denied receiving any letters from the 2nd defendant regarding the land. The 2nd defendant’s case was that he sold half a plot of land to the 1st defendant. He denied selling land to the plaintiff. He contended that his solicitor, one Lawyer Adegboyega, usually prepared all agreements for the sale of land by him and therefore the agreement relied upon by the plaintiff, which was not prepared by Adegboyega was forged. He tendered copies of agreements prepared by Adegboyega in favour of other purchasers. After a careful consideration of the evidence led, exhibits tendered and the submissions of learned counsel, the learned trial Judge entered judgment in favour of the plaintiff.
In the appellant’s brief dated and filed on 10/11/09, settled by Atirene Wilson Esq. and adopted and relied upon by D. O. Atoyebi Esq. four issues were formulated for the determination of this appeal as follows:
1. Whether the plaintiff can still maintain his title to the land in dispute when his acclaimed grantor (2nd defendant) has denied ever transferring title to him?
(Ground 1)
2. Whether the trial Judge’s wrong evaluation of the evidence before him was fatal to the judgment of the trial court as accounted for in Grounds 2 & 3? (Grounds 2 & 3)
3. Whether the plaintiff is entitled to a declaration of title to the land when its given identity in evidence contradicts the survey plan tendered in evidence? (Ground 4)
4. Whether the trial Judge’s wrong admission in evidence of Exhibit ‘A’ and reliance on same is fatal to the judgment of the trial court? (Grounds 1, 2, 3 & 4).
In the respondent’s brief dated and filed on 7/12/09, settled, adopted and relied upon by W.A. Idowu Esq., three issues for determination were distilled from the grounds of appeal. They are:
1. Whether the documents tendered by the Respondent as exhibits are reliable and sufficient to entitle them to succeed on their claim. (Grounds 1 & 3)
2. Whether the trial Court correctly placed the onus of proving the allegation of forgery on the defendants who alleged same at the trial. (Ground 2)
3. Whether the learned trial Judge properly evaluated the evidence led by the parties before holding that the plaintiff’s claim succeeds in his reliefs. (Grounds 4 & 5)
A careful examination of the issues formulated by the appellant reveals that issue no. 4 covers grounds 1, 2, 3 and 4 of the grounds of appeal whereas issues 1 to 3 already cover the same grounds. In other words, the appellant has formulated more than one issue in respect of each of the grounds of appeal. The law is that while a single issue may be formulated from several grounds of appeal, it is undesirable to split a ground of appeal into more than one issue. The Supreme Court in: Agbetoba Vs Lagos State Executive Council (1991) 6 SCNJ 1 at 12 per Karibi-Whyte, JSC held:
“This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot be justifiably regarded as issues for determination.”
See also: Egbe Vs Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part I) 306 at 332 lines 39 – 94; Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A – C: Adedipe Vs Theophilus (2005) 16 NWLR (951) 250 at 261 D – F. As the appellant has already distilled issues 1 to 3 from the four grounds of appeal, issue 4 is hereby struck out.
In paragraph 03 at page 5 of the appellant’s brief, reference was made to an amended ground 3 of the notice of appeal. There is nothing in the record of proceedings before this Court to indicate that the appellant applied for or was granted leave to amend his notice of appeal. In the circumstances, the so-called amended ground 3 is of no consequence and any reference thereto is hereby discountenanced. It is stated in the respondent’s brief that issue 3 is distilled from grounds 4 and 5 of the grounds of appeal. I observe from the notice of appeal at pages 38 – 40 of the record that there are only four grounds of appeal. The issue could therefore only have been formulated from ground 4. The reference to the non-existent ground 5 is also discountenanced. The issues formulated by both parties are similar although differently couched. I am of the respectful view that the issues in contention in this appeal can be resolved upon the consideration of two issues:
1. Whether the lower court properly evaluated the documentary evidence before it. (Grounds 1, 2 and 3)
2. Whether there was sufficient evidence before the court to determine the identity of the land in dispute.
(Ground 4).
Issue 1
Whether the lower court properly evaluated the documentary evidence before it.
Both the appellant and the respondent argued this issue as issues 1 and 2 in their respective briefs of argument. I shall consider the submissions together.
Learned counsel for the appellant submitted that in a claim for declaration of title the burden is on the claimant to prove his title and he cannot rely on the weakness of the defence. He referred to the case of: Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya Vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. He also referred to the celebrated case of Idundun Vs Okumagba (1976) 9 – 10 SC. 227 on the ways of proving title to land. He submitted that while a claimant may rely on any of the methods referred to in Idundun’s case (supra), he must establish the precise nature of the title claimed (original ownership, customary grant, conveyance, sale under customary law, long possession, etc.) and adduce evidence to that effect. He cited the case of: Emegwara Vs Nwaimo & Ors. 14 WACA 347.
He submitted that the respondent relied on Exhibit A, the purported agreement between him and the 2nd defendant and Exhibit B his survey plan. He argued that the appellant having challenged Exhibit A the respondent had a duty to go further and establish his vendor’s title. He contended that he failed to do so in this case and thus failed to discharge the onus on him as held in the case of: Eke Vs Eluwa (2000) 11 WRN 16 at 17. He argued that the respondent failed to lead evidence of acts of possession or other acts of ownership on the land in dispute. He submitted that the appellant led credible evidence in proof of his title, which was confirmed by the 2nd defendant who executed the deed of conveyance, Exhibit H in his favour.- He noted that the appellant also tendered Exhibit H1, his survey plan and testified that he had built a bungalow on the land. He contended that although the respondent stated that he interrupted construction of the bungalow, he also testified that he had never met the appellant until he instituted the suit at the court below. He concluded that this fact proves that the appellant had been in undisturbed possession of the land.
He submitted that even if the documents of title relied upon by both parties were indeed executed by the 2nd defendant, the appellant’s Exhibit H would take precedence over the respondent’s Exhibit A being a registered instrument and registered first in time assuming Exhibit A was subsequently registered). He referred to Section 16 of the Land Instrument Registration Law Cap 56 Laws of Oyo State of Nigeria 1975 applicable in Osun State by virtue of Section 16 of the Land Instrument Registration Law, Laws of Osun State 2003; Amankara Vs Zankley (1962) 1 ALL WLR 304.
Learned counsel submitted further that the refusal of the learned trial Judge to send the disputed signature in Exhibit A for handwriting analysis was fatal to the judgment, as a determination of the genuineness of Exhibit A was central to a just resolution of the issues in contention at the trial. He submitted that His Lordship misconceived the evidence when he held that the correspondence entered into between the respondent and the 2nd defendant was a confirmation that the 2nd defendant executed Exhibit A because he failed to consider the appellant’s explanation that at the time he entered into the correspondence with the respondent he was under a mistaken belief that the respondent bought the land from him. He also contended that the learned trial Judge wrongly evaluated the evidence of the respondent vis a vis the evidence of the 2nd defendant when he upheld Exhibits G and G1 as having been executed by the 2nd defendant notwithstanding the 2nd defendant’s denial. He argued that he came to a wrong conclusion when he held that in view of similarities between Exhibits G and A and the survey plans Exhibits Band G1 there was a compelling inference that both purchasers bought from the same vendor and that if one was accepted as the true act of the vendor, the same inference would apply to the other. He argued that the 2nd defendant was the best person to affirm or deny his own signature on Exhibit A but could not be in a position to admit or deny the signature of the late Omokehinde on the document. He argued that the evidence of the 2nd defendant that he did not sign Exhibit G is more reliable than that of his witness. He submitted further that even if the 2nd defendant executed Exhibit G, it has no connection to his purported execution of Exhibit A and cannot be the basis for a finding that he signed Exhibit A.
With regard to the finding of the court that Exhibits B and G1 are similar, learned counsel submitted that Exhibit B does not clearly define the land in dispute as described in Exhibit A. He contended that the land in Exhibit B could pass for a different parcel of land on another side with Exhibit G1. He argued further that the similarities between the two documents are not conclusive proof that both documents are original. He contended that the similarities could even confirm the forgery. He submitted that where the trial court fails to properly evaluate the evidence before it, an appellate court has the power to re-evaluate same (except where the demeanour of witnesses is concerned) and arrive at a just decision. On the power of the court to summon an expert witness to examine the disputed documents to determine the genuineness of the 2nd defendant’s signature on Exhibit A, he referred to: Khalil Vs Odumade (2000) 11 WRN 1 at 11- 12 lines 40 – 45; 14 lines 1 – 25; 12 lines 30 – 35; Adewuyi Vs Odukwe (2000) 9 WRN 127 at 114 lines 35 – 40; 146 lines 25 – 30; 137 lines 10 – 15.
In response to the above submissions, learned counsel for the respondent submitted that in proof of his title the respondent relied on Exhibit A (the agreement dated 14/6/75 between him and the 2nd defendant) and Exhibit B (the survey plan of the land in dispute). He also relied on Exhibits G and – G1, the agreement and survey plan in respect of adjoining land purchased by late Ezekiel Owolabi on the same date and from the same vendor. He noted that Barrister Adegboyega Araoye who testified as DW2 confirmed that Exhibit G was regular and that the signature on Exhibit G was that of the 2nd defendant. He also confirmed that Omokehinde, whose signature appeared on Exhibits A and G was the 2nd defendant’s representative and had always signed agreements as the 2nd defendant’s witness. He submitted that the 2nd defendant also confirmed the respondent’s title through Exhibits C and D, the letters written to the appellant and Mr. Adeleke of First Bank Osogbo by the 2nd defendant after the respondent’s complaints about the appellant’s trespass on his land. He noted that he however attempted to renege on those exhibits at the trial.
On the appellant’s contention that Exhibit A was not registered in compliance with the Land Instrument Registration Law of Oyo State, applicable in Osun State, learned counsel submitted that it is a fresh issue neither raised at the court below nor covered by any ground of appeal and therefore liable to be struck out. He relied on: The Registered Trustees of Ifeloju Friendly Union Vs Alhaja Bewaji Kuku (1991) 5 NWLR (189) 65 @ 76; Tiza Vs Begha (2005) 15 NWLR (949) 616 @ 647 D – E. He submitted that a fresh issue could only be raised in this Court upon leave sought and obtained. He relied on: Akinwale Vs Bank of the North (2004) 4 NWLR (704) 448 @ 456 F – G. He also noted that the amended ground 3 in the appellant’s brief is incompetent for failure to obtain leave to amend in compliance with Order 9 Rule 7 of the Court of Appeal Rules 2007.
Alternatively, he submitted that Exhibit A was made on 14/6/75 while Exhibit H relied upon by the appellant was made on 22/9/77. Relying on the maxim nemo dat quod non habet, he submitted that at the time the 2nd defendant purported to sell the land to the appellant he had nothing to sell. He relied on the cases of: Famuroti Vs Agbeke (1991) 5 NWLR (189) 1 at 15 G and Aminu Vs Ogunyebi &. Anor. (2004) 10 NWLR (882) 457 at 480 A. He submitted further that Exhibit A was tendered as evidence of the transaction between the respondent and the 2nd defendant. He noted that upon a comparison of Exhibits A and G, the learned trial Judge found various similarities, which convinced him that Exhibit A was genuine.
On the submission of learned counsel for the appellant that the learned trial Judge failed to order the attendance of a handwriting analyst, he noted that it was the respondent’s counsel who made the application, which he later withdrew and that there was no appeal on the issue. He argued that the appellant cannot raise the issue at this stage without leave of- court. He referred to Section 25 (1) & (2) of the Court of Appeal Act and Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999; also: New Nigerian Bank Plc. Vs Denclag Ltd. &. Anor. (2005) 4 NWLR (916) 459 at 586 C – G; 588 H. He submitted that in any event, the court under Section 108 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 has the power to compare the disputed documents with other documents in order to form its opinion on writing, signatures etc. He referred to: Adeniji Vs Onagoruwa &. Anor. (2000) 1 NWLR (639) 1 at 24 D – E; Daniel-Kalio Vs Daniel-Kalio (2005) NWLR (915) 305 at 323 G – H. He urged the court to resolve the issue against the appellant.
The law is settled that in an action for declaration of title to land the onus is on the claimant to prove his title. As correctly submitted by learned counsel for the appellant the claimant must succeed on the strength of his own case and not on the weakness of the defence, if any. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (946) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88; Adesanya Vs Aderanmu (2000) 13 WRN 104 at 115 lines 10 – 35. The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duty authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes anyone of them. In the instant case, the original plaintiff/respondent relied on documentary evidence to prove his title. Contrary to the submission of learned counsel for the appellant, once the respondent is able to establish his title based on the documents tendered, there is no obligation on him to prove acts of ownership or long possession.
It is abundantly clear from the pleadings of the parties and the evidence led at the trial that the plaintiff/respondent relied on an agreement between him and the 2nd defendant dated 14/6/75 (Exhibit A) and survey plan no. RAK 1019 B dated- 3/9/75 (Exhibit B) to establish his title to the land in dispute.
The 2nd defendant’s reaction to Exhibit A was that it was a forged document. He denied the signature purported to be his on the said document. Thus the defendants put the genuineness of Exhibit A in issue. By virtue of Section 137 (1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria 2004, the onus of first establishing his claim for declaration of title lay on the plaintiff/respondent. If however, he adduced credible evidence that would satisfy the court that the fact sought to be proved had been established, the onus would shift to the appellant to prove otherwise. See Section 137 (2) of the Evidence Act.
In the face of the 2nd defendant’s challenge to Exhibits A and B, the respondent relied inter alia on the following documents:
a. Exhibits G and G1: Agreement between the 2nd defendant and late Ezekiel Owolabi for sale of land adjoining the land sold to the respondent and the survey plan in respect thereof.
b. Exhibits C and D Correspondence between the 2nd defendant and the appellant (Exhibit C) and one Mr. Adeleke, who allegedly introduced the appellant to the 2nd defendant (Exhibit D), pursuant to the respondent’s complaint of trespass against the appellant.
The respondent called Mrs. Owolabi (PW2) who confirmed that her late husband and the respondent both bought plots of land from the 2nd defendant on the same day and that she witnessed the transactions. In Exhibit C, addressed to the appellant, the 2nd defendant stated thus:
“Please note that I have investigated your actions on the half plot of land transferred to you and the revelation made was that you have taken more than half plot.
This action of yours has caused a lot of embarrassment and therefore you should stop all actions on the piece of land until further notice.
However if you do not heed this warning will instruct my solicitor to take legal action against you.
A word is sufficient for the wise.”
(Emphasis supplied)
In Exhibit D dated 2/2/90 addressed to Mr. Adeleke of First Bank, Osogbo, the 2nd defendant stated inter alia:
“Reference my last letter (undated) to Mr. Oladosu Bankole (copy sent to you). I was very happy that you took an immediate action by advising him to stop work on the site but it came to my hearing that he had started the work again.
Please Note:
1.That it was you who observed that there was half a plot of land not yet sold by me. After I had investigated thoroughly from you and you appeared to be very sure that it was half a plot and that it was not yet sole, I gave you my consent and you brought Mr. Bankole who, as you said, wished to buy the half plot of land for two thousand five hundred naira (N2,500.00) and he did pay and document was made.
2. That it in the face of the fore-going (No.1 above), I appeal to you very strongly to advise Mr. Bamikole to stop work on the site as Mr. Ladele is the rightful owner of the plot he is building upon.
3. …
4. …
Therefore, to avoid any unpleasantness, you should take an IMMEDIATE step towards the right direction advising him to stop work on Mr. Ladele’s landed property and then give a reply to this letter on or before next Tuesday, February 6, 1990.”
(Emphasis supplied)
By the documents referred to above, the respondent had discharged the initial burden on him to prove his title to the land in dispute. The onus then shifted to the appellant and 2nd defendant to rebut the evidence. The appellant who testified as – DW1 tendered his agreement, Exhibit H dated 22/9/77 and his survey plan Exhibit H1. He denied knowing Mr. Adeleke and denied any knowledge of Exhibits C and D. The 2nd defendant denied selling any land to the respondent but confirmed executing Exhibit H in the appellant’s favour. He denied executing Exhibit A on the ground that the signature thereon is not his and the fact that it was not prepared by a lawyer. He stated that one A. Araoye was the lawyer who usually prepared agreements for him. He tendered Exhibits J – J7, agreements prepared by Araoye on his behalf in respect of safes to other purchasers. With regard to Exhibits C and D, he admitted writing them but stated that at the time he wrote the letters he had not seen the document the respondent was relying on. He agreed under cross-examination that Omokehinde, who signed Exhibit A has acted as his witness on many occasions. He stated that Omokehinde was his representative because he (2nd defendant) did not normally visit the land.
Adegboyega Araoye testified as the 2nd defendant’s second witness. He identified Exhibits J – J7 as documents prepared by him. While he claimed that the vendor’s signature on Exhibit A compared to the signature on Exhibits J – J7 was irregular, he stated that the signature on Exhibit H was similar to the signatures on Exhibits J – J7. He however stated under cross-examination that the signature on Exhibit G was regular-and that the 2nd defendant signed it. He also confirmed that the late Omokehinde was the intermediary between the 2nd defendant and purchasers and that he (Omokehinde) signed Exhibits J – J7.
The appellant’s and 2nd defendant’s defence before the lower court was based on the allegation that the signature on Exhibit A is a forgery. In other words, they have imputed acts of a criminal nature to the respondent. The law is that where allegations of a criminal nature are made in civil proceedings, those allegations must be proved beyond reasonable doubt. See: Buhari Vs Obasanjo (supra) at 209 D – E; 295 B – E; Nwobodo Vs Onoh (1984) 1 SCNLR 1; Ajasin Vs Omoboriowo (1984) 1 SC 201. The onus was therefore on the defendants at the court below to prove the allegation of forgery against the plaintiff beyond reasonable doubt.
In the evidence before the court, the signature on Exhibit A (the respondent’s root of title) was disputed while Mr. Araoye, the 2nd defendant’s solicitor identified the signature on Exhibit G as being regular and as being the 2nd defendant’s signature. In other words, Exhibit G said to have been executed by the 2nd defendant on the same day as Exhibit A in respect of a parcel of land adjoining the land sold in Exhibit A was undisputed. Having compared the two documents, the learned trial Judge at page 27 of the record held:
“Indeed going through Exhibits A and G there are many things common to both.
a. Both were dated 14/6/75.
b. Purchase price was for N800.00
c. Both were signed by the same type of pen and ink i.e. vendor.
d. Both carried the same vendor’s witness J. Omokehinde the representative of or the intermediary between 2nd defendant and the clients.
The similarity is further heightened by the plans in Exhibits 8 and G1 RAK 1019A and 1019B both dated 3/9/75 and by the same Surveyor R.A. Kadiri.
All of these will make the inference compelling that both buyers bought from the same vendor such that if one is accepted as true act of the vendor in one same will apply to the other.”
Having carefully examined Exhibits A and G, I am of the respectful view that the reasoning and finding of the learned trial Judge is unassailable. The defence witness, A. Araoye confirmed that his client, the 2nd defendant, signed Exhibit G and that the document was regular. The 2nd defendant himself admitted that Omokehinde was his intermediary and confirmed that he customarily witnessed documents executed between him and those who purchased land from him. This evidence from the 2nd defendant’s witness supported the assertion of the respondent that Exhibit A was duly executed between him and the 2nd defendant. Furthermore, Omokehinde’s signature appears on Exhibits A and G as well as Exhibits J – J7, which the 2nd defendant held out as genuine agreements prepared by his lawyer and executed by him. While it is the law that a person claiming declaration of title must succeed on the strength of his own case, such a person is entitled to rely on evidence led by the adverse party where it supports his case. See: Odi Vs Iyala (2004) 4 SC (Part 1) 20 at 41; Okafor Vs Idiro (1984) 15 NSCC 360; Akino’a Vs Oluwo (1962) 1 All NLR (Part 2) 244 at 225.
On exhibits C and D (reproduced earlier in this judgment), the learned trial Judge held thus at page 28 of the record:
“Again were the two letters copied the Plaintiff, Exhibits C and D by the 2nd defendant and paragraph 2 of Exhibit speaks:
“That in the face of the foregoing (no 1 above) I appeal to you very strongly to advise Mr. Bamikole to stop work on the site as Mr. Ladele is the rightful owner of the plot he is building upon.
This is an admission by the 2nd defendant of the title of the Plaintiff such that subsequent denial by the 2nd defendant is rendered otiose. The contemporary agreement Exhibit G and conveyance G1 witnessed and certify (sic) by Oladele, a solicitor and the plans drawn by the same surveyor would make the version of the plaintiff true and believable. There is nothing of substance in the denial. Exhibits C and D even on their own standing destroy the denial story. It is either that the 2nd defendant is confused or totally absent minded about the 1975 transactions between him and the plaintiff on the one hand and on the other hand the 1st defendant.”
The 2nd defendant admitted writing Exhibits C and D even though the 1st defendant denied receiving them. What is significant is the fact that there is nothing in either document to suggest that the 2nd defendant was in any doubt about the respondent’s ownership of the land in dispute. His denial at the trial certainly seems to have been an afterthought. It is clear from Exhibit D that the 2nd defendant was accusing Mr. Adeleke to whom it is addressed of misleading him about the existence of half a plot of land not yet sold, which he went on to sell to the appellant. He stated categorically that the appellant should be asked to stop work on the site as the land belonged to the respondent. The finding and conclusion of the learned trial Judge on this issue is fully supported by the evidence on record.
Learned counsel for the appellant made heavy weather of the fact that the learned trial Judge failed to order the attendance of a handwriting analyst. I have examined the record of proceedings in this regard. On 14/5/96, W.A. Idowu Esq., learned counsel for the plaintiff made an oral application for the matter to be sent to a handwriting expert under the provisions of Section 108 of the Evidence Act. He however withdrew the application immediately. See page 21 of the record. The defendants, on their part, did not challenge the withdrawal of the oral application nor did they make any application of their own on the issue. It was thus not a matter that arose for consideration in the final judgment The appellant’s issue 2, which challenges the alleged failure of the learned trial Judge to send Exhibit A to a handwriting analyst, is therefore incompetent and is hereby struck out. The submissions of learned counsel for the appellant in respect of this issue are accordingly discountenanced. In any event, as noted earlier in this judgment, the learned trial Judge, in exercise of his powers under Section 108 of the Evidence Act, compared the disputed signature on Exhibit A with the admitted signature on Exhibit G and concluded correctly in my view, that the signatures were the same.
Similarly, the issue of compliance with the Land Instruments Registration Law of Oyo State, applicable in Osun State was not an issue raised or determined in the lower Court. It was raised for the first time in this Court. The law is-that where a fresh point or issue is raised for the first time on appeal, leave of the appellate court must be sought and obtained. Where no leave is obtained, the ground of appeal is incompetent and liable to be struck out. See: Tiza Vs Begha (2005) 15 NWLR (949) 616 at 647 D – E; Akinwale Vs Bank of the North (2004) 4 NWLR (704) 448 at 456 F – G. In the instant case, the issue is argued in the appellant’s brief without any ground of appeal to support it, whether filed with leave or not In the circumstances the submissions go to no issue and are accordingly discountenanced.
On the whole, I am of the view that the learned trial Judge painstakingly evaluated the evidence before him and reached a decision fully supported by the evidence. The appellant has failed to show any reason for this court to interfere with the decision. This issue is accordingly resolved against the appellant.
Issue 2
Whether there was sufficient evidence before the court to determine the identity of the land in dispute. Learned counsel for the appellant argued that Exhibit A, the respondent’s agreement does not contain a reference to the survey plan, Exhibit B, while the land described in Exhibit B is not ‘copiously referred to’ in Exhibit A. He contended that Exhibit B does not state the measurement of the land and the boundary men as stated in Exhibit A. He submitted that the learned trial Judge erred in relying on a motion, which had been withdrawn to resolve the uncertainty of the identity of the land. He submitted that proof of the identity and boundaries of the land in dispute is an essential requirement for the grant of a declaration of title. He referred to the case of: Adesanya Vs Aderonmu (supra) at 120 lines 15 – 20 & 121 – 122 lines 35 – 20. He submitted that the respondent’s claim must fail on this ground.
In reaction to this issue, learned counsel for the respondent submitted at page 6 of his brief that both the appellant and the 2nd defendant in their respective pleadings acknowledged that they knew the identity of the land in dispute. He submitted that where the land in dispute is easily identifiable and identified, a plan of the land is not necessary. He referred to: Onabanjo Vs Ewetuga (1993) 4 NWLR .(288) 445 at 459 E; Oluwole Vs Abubakare (2004) 10 NWLR (882) 549 at 567 B – C.
There is no doubt that in an action for declaration of title to land, the onus is on the claimant to prove the boundaries of the land claimed. The test for establishing the identity of the land is whether a surveyor can, from the record, produce an accurate plan of such land. However, where the identity of the land is known to the parties and not in dispute, a survey plan would not be necessary. See; Aremu Vs Adetoro (2007) NWLR (1060) 244 at 257 G – H; Awere Vs Lasoju (1975) NMLR 100; Idehen Vs Osemwenkhae (1997) 10 NWLR (525) 358; Awoyoolu Vs Aro (2006) 4 NWLR (971) 481.
A careful perusal of the pleadings of both defendants at pages 6 – 10 of the record shows that neither party contested the identity of the land in dispute. When Exhibit B was tendered in evidence at the trial, the only objection raised by learned counsel for the 2nd defendant was that the respondent who sought to tender, it was not the maker. The objection was overruled. The respondent was not cross-examined as to the identity of the land. In the course of the judgment the learned trial Judge considered paragraphs 12 and 13 of the 2nd defendant’s statement of defence where he pleaded thus:
“12. The defendant shall rely on about 10 different copies of land agreements executed by him for different purchasers of his land from different areas in Osogbo including the area of the land in dispute, which he called Major Commercial Avenue off Odi-Olowo Street, Osogbo…
13. The defendant says that the area which the land in dispute is situate is called Major Commercial Avenue, Osogbo and it is also called Gbodofon Area, Osogbo/Gbongan Road, Osogbo.”
The 2nd defendant tendered Exhibits J – J7 in support of paragraph 12 above. The learned trial Judge noted that in Exhibits J3 and J4 the 2nddefendant’s land was described as “situate, lying and being at Major Commercial Avenue, Osogbo”, the same description used in Exhibits A and B and G and G1 relied upon by the respondent. He held that the respondent’s description of the land corresponded with the description given by both defendants in their pleading and in their evidence before the court. He observed at page 31 of the record that the description of the land in Exhibit G, which the 2nd defendant’s lawyer, Mr. Araoye admitted was regular gave boundaries of the land as:
“In the front side by Major Commercial Avenue.
On the right side by Jimoh Olawale.
On the left side by Christopher Oladele i.e. the Plaintiff:
At the back by C.A.C Church land. “His Lordship observed further that Exhibit B also shows the front boundary of the land as Major Commercial Avenue, now known and described as Buraimoh Street. In conclusion on this issue he held that the 2nd defendant had by paragraph 13 of his pleading admitted the identity of the land therefore no further proof was needed.
Learned counsel for the appellant argued that the learned trial Judge was wrong to have placed reliance on a document attached to a motion that had been withdrawn in resolving the issue of the identity of the land. With due respect to learned counsel, while it is true that the learned trial Judge made a brief reference to a withdrawn motion, that was not the basis for his finding. He went further and carefully examined not only the pleadings of the parties but also the documentary evidence, and particularly those documents that the 2nd defendant held out as being genuine documents prepared by his lawyer and duly executed by him. I therefore hold the considered view that the learned trial Judge was correct when he held that the identity of the land was known to all the parties and therefore was not in dispute. There was thus sufficient evidence before the court upon which to ascertain the-identity of the land. This issue is also resolved against the appellant.
In conclusion I find no merit in this appeal. It is hereby dismissed. The judgment of the High Court of Osun State, Osogbo in suit no. HOS/32/90 delivered on 9th September, 1996 per R. O. Yusuff J. is hereby affirmed.
Costs of N50,000.00 are awarded in favour of the respondent.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment just delivered by my learned brother K. M. O. Kekere-Ekun, J.C.A. The issues raised were comprehensively considered and resolved, I adopt same and have nothing meaningful to add.
I agree with the conclusion that the appeal lacks merit and same is dismissed by me. I abide by the order as to costs.
MODUPE FASANMI, J.C.A.: I was privileged to have a preview of the judgment just delivered by my learned brother K. M. O. Kekere-Ekun J.C.A.
I agree entirely with the reasoning and conclusions reached.
All the issues were comprehensively dealt with and there is nothing more to add. I affirm the Judgment of the trial Judge. I also dismiss the appeal as lacking in merit. I abide by the order of costs made therein.
Appearances
D. O. AtoyebiFor Appellant
AND
W. A. IdowuFor Respondent
