MADAM JARATU ABEJE & ANOR. V. MADAM SARATU APEKE
(2013)LCN/6138(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of April, 2013
CA/I/309/2009
RATIO
CLAIM AND COUNTER-CLAIM: WHETHER THEY HAVE THE SAME BURDEN OF PROOF
It is clear that the trial Judge had before him a claim and a counter-claim. Both the claimant and the counter-claimant have the same burden of proof to discharge.PER OBIETONBARA DANIEL-KALIO, J.C.A.
JUDGMENT: THE CORRECT STYLE OF WRITING A JUDGMENT
The important thing is for the trial Judge to consider the facts and issues properly. How he goes about doing so depends on his style. There is nothing dogmatic about it. As pointed out by Ogbuagu JSC in Garuba vs. Yahaya (2007) 3 NWLR part 1021 page 390 at p.420 also reported in (2007) 1 – 2 SC part 11 page 262:
“It is settled that writing a judgment is an art in itself and there are more than one way of going about it… it is possible to have as many variations as there are Judges”
In Ogolo vs. Ogolo (2003) 18 NWLR part 852 page 491 at p.523 – 524 also reported in (2003) 12 SC part 1 page 56, the Supreme Court said thus:-
“It is no longer in doubt that writing a Judgment is an art and as such each Judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good Judge must incorporate inter-alia, set out the nature of the matter before the court, the issues in controversy, a review of the case of the parties, a consideration of the relevant law raised and applicable to the case, specific findings of the facts and conclusions. The reasons for arriving at the conclusion must also be stated. As there should be no fixed or right form of embarking on the process of achieving the end result stated above, what is however most essential is that a Judge should show a clear understanding of the facts and issues raised in the case, the law applicable and from all these, he should be able to arrive at a conclusion, deciding all the issues in controversy in the case before him.PER OBIETONBARA DANIEL-KALIO, J.C.A.
UNSIGNED DOCUMENTS: THE EVIDENTIAL WEIGH TO BE ATTACHED TO THEM
Unsigned documents our courts have held, should attract little or no evidential weight. See Jinadu & Ors vs. Israel Esurounbi-Aro & Anor. (2009) 9 NWLR part 1145 page 55 at p.81. Indeed many decisions say that an unsigned document is a worthless piece of paper that has no evidential value. See Amaizu vs. Nzerube (1989) 4 NWLR part 118 page 755. It has to be said though that it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. For example, where parties do not deny the existence of a contract of affreightment, the fact that they did not sign it cannot be a ground that they are not bound by it, barring a statutory provision. See Awolaja vs. Seatrade GBV (2002) 4 NWLR part 758 Page 520 at p.532.PER OBIETONBARA DANIEL-KALIO, J.C.A.
LAND LAW: PROOF OF OWNERSHIP OF LAND: METHODS
In the case of Idudun vs. Okumagba (1976) 9 & 10 SC 246 – 250 which qualifies to be regarded as the locus classicus on the ways of proving ownership of land in Nigeria, one way stated there and which the appellants’ counsel contended was established by the appellants, is proof of acts of ownership. Acts of ownership as a way of proving ownership of land as decided in Idudun vs. Okumagba et al must not be abbreviated. What is required to be proved is not acts of ownership however slight, but acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the owner.PER OBIETONBARA DANIEL-KALIO, J.C.A.
NOTHING DEBARS A MAN FROM TAKING A NAME HE FANCIES
One must quickly add that nothing debars anyone from taking a name of his fancy. See Offoboche (2006)13 NWLR part 997 page 298 at 304. PER OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES:
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. MADAM JARATU ABEJE
2. LUKMAN OLADITI – Appellant(s)
AND
MADAM SARATU APEKE (Submitted for the late Tijani Alade) – Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over land, the ownership of which is disputed. The case at the trial stage was heard by the High Court of Oyo State in which court it was assigned Suit No. 1/177/97. Judgment was delivered on 16/10/2008.
The main disputants are siblings of the same parents. The respondent (the plaintiff in the lower court) is the older brother of the 1st appellant (the 1st defendant in the lower court). The 2nd appellant is the son of the 1st appellant. It is noteworthy that the appellants filed a counter-claim in the lower court.
The facts of the case are straight forward. The land in dispute according to the respondent, who was the plaintiff in the lower court, is part of 2 plots of land jointly owned by him and the 1st appellant. The 1st appellant disputes this. According to her, the entire land was purchased by her. As a trusting sister she gave money to her older brother to buy the 2 plots of land for her and he did. It is noteworthy that the respondent is now late and has been substituted by his first child.
After hearing the case, the trial judge entered judgment for the respondent. He declared the appellants as trespassers, restrained them together with their servants, agents and privies from having anything to do with the land by an order of perpetual injunction and awarded general damages against the appellants for trespass. He dismissed the appellants counter-claim. The Judge awarded N10,000 costs in favour of the respondent for the success of his claim and another N10,000 in his favour with respect to the unsuccessful counter-claim.
Dissatisfied with the judgment, the appellants filed a Notice of Appeal dated 15th January, 2009, challenging the judgment on 7 grounds. They prayed this court for an order allowing the appeal and for setting aside the judgment of the lower court. They also prayed this court to dismiss the claim before the lower court.
The grounds and particulars of their dissatisfaction with the judgment of the lower court as set out in the Notice of Appeal are as follows:
GROUND 1
The learned trial judge erred in law and misdirected himself when he held as follows:
”In my view, the 1st Defendant’s root of title of the land in dispute goes back to the plaintiff as she admitted that she did not know the vendors of her land but that the plaintiff transacted dealings in land matters on her behalf. This shows that she only relies on the plaintiff as her root of title.
PARTICULARS
(a) The Claim of the 1st Respondent as Plaintiff was for a portion of the land allegedly purchased jointly by him and the 1st defendant.
(b) The defence of the 1st defendant was a denial of joint purchase or ownership of the two plots and an assertion that she owned the said plots solely, though the Plaintiff assisted her to buy them,
(c) The defence of the 1st defendant was not as found by the Trial Judge, a reliance on the Plaintiff as her root of title.
(d) By the finding, the Learned Trial Judge misconceived the defence of the 1st defendant/Appellant”.
GROUND 2
The learned trial judge erred in law when he held as follows:
“The 2nd defendant/counter claimant from the totality of his evidence as DW1, knows nothing about the root of title of the land outside what he was told by the 1st Defendant, his mother.
I thus have no difficulty in holding that on the basis of evidence adduces (sic) by parties in this suit, the evidence of the plaintiff assails that of Defendants and he indeed owns the land in dispute. Issue one is resolved in favour of the plaintiff against the defendants/counter-claimants”.
PARTICULARS
(a) The evidence proffered by the Parties consisted mainly of oral testimony and documents, particularly Exhibit “C” relied upon by the Plaintiff.
(b) In proof of his case, the Plaintiff called only one witness PW1, in addition to himself.
(c) PW1 was neither involved with our present at the purchase of the land nor did he testify as to the circumstances of purchase.
(d) The defendants gave evidence of possession of the Land through D.W.2 who was put in possession of the Land for several years by the 1st Defendant.
(e) Exhibit C which was relied upon by the Plaintiff in support of his claim for title was executed neither by the Plaintiff nor 1st Defendant.
GROUND 3
The learned trial judge erred in law when he held as follows:
“The recital of Exhibit ‘C’ states that:-
2. “By virtue of an agreement dated 10th day of August 1965 between the vendors and the purchasers, the vendors have put the purchasers in possession of the land hereinafter described”.
Exhibit C was executed between:
(1) Ladepo Atanda (2) Raimi Akanbi (3) Karimu Olaojo (4) Akinofa Akanmu and (1) Mr. Tijani Alade and (2) Madam Jaratu Abeje.
PARTICULARS
(a) Exhibit C was an agreement relied upon by the Plaintiff in support of his Claim of Joint purchase of two plots of Land, one of which was in dispute.
(b) The 1st Defendant/Appellant in her evidence denied knowledge of the existence of either Exhibit C or the persons named as Vendors in it.
(c) The Appellants in their final address drew the attention of the court to the fact that Exhibit C was not executed.
(d) Exhibit C contrary to the finding of the Trial Judge that it was executed by the vendors named therein and the parties before him does not contain the signature or thumbprint of either the Plaintiff or 1st Defendant.
(e) The finding of the Trial Judge on the status of Exhibit C has occasioned a serious miscarriage
GROUND 4
The learned trial judge erred in law when in considering the Claim of the Plaintiff, he held as follows:
“She (1st Defendant) has not discharged the burden of proof of ownership of the land in dispute”.
PARTICULARS
(a) It is settled that a Plaintiff who seeks a declaration of title to land must succeed on the strength of his own case.
(b) The Learned Trial Judge in considering the case of the parties firstly considered the merit or otherwise of the defence without firstly considering the merit of the Plaintiff’s case.
(c) By the finding, the Learned Trial Judge essentially placed the onus of proof on the 1st defendant and not on the Plaintiff.
(d) By the finding, the Learned Trial Judge found for the Plaintiff based on a perceived weakness of the defence.
GROUND 5
The learned Trial Judge erred in law when he held as follows:
“Since I have held in Issue One above that the plaintiff owns the land not yet built up, the act of 2nd Defendant in August, 1997 clearly constitutes flagrant act of trespass on the plaintiff’s land without justification.
The 1st Defendant in her testimony also said she “allowed people to dump refuse on the land for some time after the woman making garri had left.”
This, in my view, shows she also participated in putting the plaintiff’s land to adverse use and allowing trespassers on the said land.
“The sum consequence of Issue Two is that the plaintiff’s claim as contained in paragraph 18(1), (2), (3) and (4) of the statement of claim succeeds.”
PARTICULARS
(a) The defendants had led evidence to show that the 1st defendant had exercised acts of possession over the land for several years since purchase in 1965 without any challenge from anybody until she was disturbed in 1996 by the Plaintiff.
(b) The evidence of the DW2 called by the defendants that he was on the land for several years at the behest of the 1st defendant were largely unchallenged.
(c) The finding of the Court arose from its placement of the burden of proof on the defendants.
(d) The finding of the Court has occasioned a miscarriage of justice.
GROUND 6
The Learned Trial Judge erred in law in entertaining the plaintiff’s claim when he ought to have known that the plaintiffs action was statute barred and therefore that he lacked jurisdiction.
PARTICULARS
(a) From the evidence on the record the land was purchased in 1965.
(b) DW2 was a tenant in the first defendant’s house and on the land in dispute from 1976 to 1991, a period of 15 years without challenge from anybody.
(c) Evidence of DW2 on the above fact was never controverted.
(d) There was also evidence that after DW2 left, other tenants and users occupied the land with consent only of the first Defendant up till 1997 when this action was instituted.
(e) The plaintiff’s action instituted in 1997 after over two decades of consistent use by the first defendant through her tenants, is statute barred.
GROUND 7
The Judgment is against the weight of evidence.
Appellants counsel, Oluwasina Ogungbade Esq., filed an Amended Appellants Brief of Argument on 27/6/2012. In it, he identified three issues for determination, viz-
“1. Whether the learned trial judge’s claim to the land in dispute as being dependent or reliant on the plaintiff as her root of title did not in the circumstances of the case, occasion a miscarriage of justice, particular regard being had to the eventual finding of the court that she (1st defendant/appellant) failed to discharge the burden of proof of ownership of the said land – Grounds 1 and 4.
2. Whether there was any credible evidence before the court to warrant the grant of the plaintiffs claims – Ground 3.
3. Whether the appellants were not in the circumstances of the case entitled to succeed on their counter-claim.” Ground s 2, 5 and 7.
On issue 1, learned counsel submitted that the learned trial judge totally misconceived and mis-appraised the 1st appellant’s case when he held that “the 1st defendant’s root of title of the land in dispute goes back to the plaintiff”. He submitted that from the pleadings and evidence led, it cannot be disputed that the respondent pleaded and gave evidence of joint acquisition of the two plots of land together with the 1st appellant which plots were subsequently shared between them while the appellants pleaded and gave evidence of sole acquisition and ownership of the two plots. He submitted that by finding that the 1st appellant had relied on the respondent as her root of title, the learned trial judge was also finding that the 1st appellant had recognized or admitted the respondent’s title to the land. That finding he submitted, occasioned a miscarriage of justice in that it indirectly found in favour of the respondent and absolved the respondent of the need to discharge the burden of proof of ownership of the land on him
Learned counsel submitted that the respondent who was the plaintiff had the burden of proving ownership of the land and not the appellants who were the defendants. He cited the case of Sanusi vs. Ameyogun (1992) 4 NWLR part 237 page 527.
Learned Counsel conceded that the 1st appellant filed a counter claim at the lower court. He submitted however that the claim being considered by that court at the time it made its finding that the 1st appellant relied on the respondent as her root of title was the plaintiff’s claim and not the counter-claim. He submitted that even if the trial Judge was dealing with both the claim and the counter-claim when he made the finding, he ought to have made a finding of failure to discharge the burden of proof in respect of the respondent being the plaintiff first before making such a finding in respect of the 1st appellant.
Learned Counsel submitted that where there has been a wrong placement of the burden of proof on a party, there would invariably be a miscarriage of justice. He referred to Onobruchere vs. Esegine (1986) 1 NWLR part 19 page 799; PHMB vs. Ejitagha (2000) 11 NWLR part 677 page 154 at 158. He urged the court to hold that the error of the learned trial Judge in placing the burden of proof on the 1st defendant had occasioned a miscarriage of justice. He urged that issue 1 be resolved in favour of the appellants.
On issue 2 which is whether there was any credible evidence before the court to warrant the grant of the plaintiffs claims, learned counsel submitted that the respondent attempted to prove ownership of the land, in dispute through the production of a title document. He referred to the pleading in paragraphs 5 and 6 of the statement of claim where reliance was placed on an Agreement dated 10th August, 1965 and a document dated 12th April, 1976. The respondent he argued, only tendered the document dated 12th April 1976 which was admitted in evidence as Exhibit ‘C’.
Counsel submitted that the trial Judge found that Exhibit ‘C’ was executed by the parties named therein. Exhibit ‘C’ he contended did not contain the signature or mark of either the respondent or the 1st appellant. He submitted that the court must be satisfied that a document is genuine and duly executed. He cited the case of Dabu vs. Abdullahi (2005) 7 NWLR part 923 Page 181.
Learned Counsel submitted that despite the fact that the 1st  appellant’s signature or thumbprint did not appear in Exhibit ‘C’, the trial Judge found that it was executed by the parties. He contended that our courts have held that an unsigned document is a worthless document which has no probative value. He referred to Faro Bottling Co. Ltd. vs. Osuji (2002) 1 NWLR part 748 page 230 at 311; A.G. Kwara State vs. Alaro (2000) 9 NWLR part 671 page 84.
Learned Counsel referred to the decision of the Court of Appeal in Sanyinna vs. AIB & Ors (2001) 4 NWLR part 703 page 355 where it was held that at common law a signature is not a sine qua non of or essential to the making of a valid deed provided the deed is sealed and delivered. He however distinguished that case from this one in that there is a dispute in this case as to whether a party to the deed was actually a party to it and that in this case the appellants (defendants) expressly pleaded fraud with regard to Exhibit ‘C’.
Learned Counsel contended that having failed to establish his title via Exhibit ‘C’ or indeed through oral evidence, the claim of the respondent ought to have been dismissed. He urged the court to resolve issue 2 in the appellants’ favour.
On issue 3 which is whether the appellants were not in the circumstances of the case entitled to succeed on their counter-claim, learned counsel submitted that the appellants were able to establish the 1st appellant’s ownership of the land. He referred to the evidence of DW3 at page 33 of the record where DW3 said that she put a carpenter on the land for several years. He contended that the said carpenter gave evidence as DW2 at page 30-31 of the record and his evidence that the 1st defendant put him in the land from 1971-1991 was not challenged during cross-examination. He submitted that the respondent himself confirmed at page 22 of the record that the land was used by an “Igboman” for his furniture business although he claimed he was the one who put him there, a claim that was not pleaded.
Learned Counsel submitted that the act of the appellants that the trial Judge considered as acts of trespass were actually acts of ownership or long possession, which are ways of proving ownership of land. He submitted that the appellants were entitled to their counter-claim and that it ought not to have been dismissed by the trial Judge. He urged the court to allow the appeal.
The respondent filed an Amended Respondent’s Brief on 29/6/12. In it, counsel for the respondent A.O. Oladele Esq. identified two issues for determination, viz-
1. Whether from the totality of evidence adduced at the trial court the respondent is not entitled to the relief sought;
2. Whether the appellants have proved before the trial court their counter-claim.
On the first issue, learned counsel submitted that in an action for declaration of title to land, a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. He contended that the respondent was able to establish a better title to the land as against the appellant at the trial court. He referred to the evidence of DW2 and to Exhibit ‘C’ which is a Deed of Conveyance and contended that the respondent was able to establish the root of his title to the land in dispute.
Learned Counsel urged the court to discountenance the submission of the appellants’ counsel that Exhibit ‘C’ was not properly executed because it did not bear the signature or mark of either the respondent or the 1st appellant. That Exhibit ‘C’ did not contain those signatures or marks he submitted is an issue of technicality. The court he submitted, will not sacrifice substance for form, adding that Exhibit ‘C’ contains the names of both the respondent and the 1st appellant to whom the land was sold jointly.
With regard to the courts preference for substantial justice over technical justice, learned counsel cited Omoiu vs. FRN (2008) 7 NWLR part 1085 page 44; S.I.E.C. Ekiti State vs. NCP (2008) 12 NWLR part 1102 page 720 at page 725; Asims (Nig.) Ltd. vs. LBRB Dev. Authority (2002) 8 NWLR part 769 page 349 at 365.
Counsel submitted that Exhibit ‘C’ was properly executed in the presence of a magistrate who also attested to it. He referred to Adenle vs. Olude (2002) 18 NWLR part 799 page 413 at 418; Tumo vs. Murana (2000) 12 NWLR part 681 page 370 at 376. He submitted that Exhibit ‘C’ was pleaded in paragraph 6 of the statement of claim and that being a public document; it was admissible in evidence under Section 97 of the Evidence Act, Learned Counsel referred to Section 150(1) of the Evidence Act and submitted that the non signing of Exhibit ‘C’ by the 1st appellant and the respondent is not fatal to its admissibility. In any case he argued, the assertion of the appellants that Exhibit ‘C’ was not duly executed is an after-thought as the appellants did not raise any objection when it was tendered. He cited the case of Olanloye vs. Fatunbi (1999) 8 NWLR part 614 page 203 at 212.
Learned Counsel submitted that where a document is 20 years old or more, there is a presumption of regularity in respect of the document. He referred to Section 123 of the Evidence Act. He also referred to Adekuro vs. Ogunniya (2000) 3 NWLR part 647 page 151 at 155.
On issue 2 which is whether the appellants have proved before the trial court their counter-claim, learned counsel submitted that the appellants did not lead credible evidence to prove their counter-claim. Furthermore he submitted, the sum of N10 million claimed as damages was not proved. The receipts tendered by the appellants marked as Exhibit D – D6 he contended, were procured during the pendency of the case, contrary to Section 91(3) of the Evidence Act. He cited the case of Klifco (Nig.) Ltd. vs. NSITFMB (2005) 6 NWLR part 922 page 445 at 451. He urged the court to resolve the 2nd issue also in favour of the respondent and dismiss the appeal with substantial costs in favour of the respondent.
Issues 2 and 3 identified by the appellants counsel, correspond with issues 1 and 2 identified by the respondent’s counsel. That being the case, I will consider the issues following the issues as formulated by the appellants’ counsel.
The first issue as will be recalled is:
“Whether the learned trial Judge’s appraisal of the 1st appellant’s claim to the land in dispute as being dependent or reliant on the plaintiff as her root of title did not in the circumstances of the case occasion a miscarriage of justice particular regard being had to the eventual finding of the court that the 1st defendant/appellant failed to discharge the burden of proof of ownership of the said land”.
With regard to this rather circumlocutory issue, the submission of appellants’ counsel is that the learned trial Judge made a finding that the 1st appellant relied on the respondent as her root of title and thereby indirectly decided in favour of the respondent and also thereby absolving the respondent of the need to discharge the burden of proof placed on him.
I think it is necessary to reproduce here that part of the judgment of the trial court complained about in order to discover if the complaint has been made out. The trial just said thus in his Judgment at page 75-76 of the record:
“While both plaintiff and 1st defendant were ad-idem that the land in dispute was first purchased in 1965, the plaintiff tendered Exhibit ‘C’ which contains the recital clause quoted above. The 1st defendant claimed the plaintiff bought the entire land on her behalf and he did not show her or give her anything either in 1965 or Exhibit ‘C’ as proof of purchase on her behalf. That she was so trusting of the plaintiff, her brother of same parents, that there was no need to request for proof of purchase”.
Furthermore, the plaintiff’s witness tendered Exhibit ‘A’ and ‘B’ approved building plans of the plaintiff and defendant in respect of the land covered by Exhibit ‘C’.
The defendants/counterclaimants did not tender any evidence of title but testified through DW2 that they put tenant on the land in dispute as proof of ownership of the entire land covered by Exhibit ‘C’.
PW1 who testified and tendered Exhibit ‘A’ and ‘B’ said he was shown a survey plan and he also visited the land in dispute before he drew Exhibit ‘A’ and ‘B’ in 1973.
In my view, the 1st defendant’s root of title of the land in dispute goes back to the plaintiff as she admitted that she did not know the vendors of her land but that the plaintiff transacted dealings in land matters on her behalf. This shows that she only relies on the plaintiff as her root of title. She (1st defendant) has not discharged the burden of proof of ownership of the land in dispute”.
From the above passage, I am of the firm view that the learned trial Judge considered the case of the plaintiff and that of the defendants/counter-claimants simultaneously before arriving at his conclusion above. It seems the appellants counsel is of the opinion that there is a set way to consider the issues before arriving at a decision. He would rather the trial Judge considered the plaintiff’s case first, hold or refuse to hold that he has discharged the burden of proof before turning to consider the defendants/counter-claimants case to see if they have discharged the burden of proof on them or not. Counsel appears to be under an impression that there is a sacred methodology to considering the issues before the trial Judge which entails that the case of the parties be considered sequentially and not simultaneously. Having failed to adopt that approach, he considered that there has been a miscarriage of justice.
It is clear that the trial Judge had before him a claim and a counter-claim. Both the claimant and the counter-claimant have the same burden of proof to discharge. The important thing is for the trial Judge to consider the facts and issues properly. How he goes about doing so depends on his style. There is nothing dogmatic about it. As pointed out by Ogbuagu JSC in Garuba vs. Yahaya (2007) 3 NWLR part 1021 page 390 at p.420 also reported in (2007) 1 – 2 SC part 11 page 262:
“It is settled that writing a judgment is an art in itself and there are more than one way of going about it… it is possible to have as many variations as there are Judges”
In Ogolo vs. Ogolo (2003) 18 NWLR part 852 page 491 at p.523 – 524 also reported in (2003) 12 SC part 1 page 56, the Supreme Court said thus:-
“It is no longer in doubt that writing a Judgment is an art and as such each Judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good Judge must incorporate inter-alia, set out the nature of the matter before the court, the issues in controversy, a review of the case of the parties, a consideration of the relevant law raised and applicable to the case, specific findings of the facts and conclusions. The reasons for arriving at the conclusion must also be stated. As there should be no fixed or right form of embarking on the process of achieving the end result stated above, what is however most essential is that a Judge should show a clear understanding of the facts and issues raised in the case, the law applicable and from all these, he should be able to arrive at a conclusion, deciding all the issues in controversy in the case before him.” I am of the firm view after considering the judgment of the lower court, that the trial Judge reviewed the issues in controversy in a reasoned manner, having understood the facts and issues. I cannot fault him with regard to issue 1. That issue is resolved against the appellants.
I now turn to issue 2 which is whether there was any credible evidence before the court to warrant the grant of the plaintiff’s claims.
The argument of learned counsel with regard to this issue is that Exhibit ‘C’ is not signed by the parties and therefore has no probative value. To his credit, appellants counsel cited the case of Sayinna vs. AIB & Ors (supra) where it was held that at common law, a signature is not a sine qua non of or essential to the making of a valid deed. He however sought to distinguish that authority by arguing that in this case, the appellants expressly pleaded fraud.
On his part, respondent’s counsel submitted with reference to Exhibit ‘C’ that the courts show a preference for substantial justice and not technicalities.
Unsigned documents our courts have held, should attract little or no evidential weight. See Jinadu & Ors vs. Israel Esurounbi-Aro & Anor. (2009) 9 NWLR part 1145 page 55 at p.81. Indeed many decisions say that an unsigned document is a worthless piece of paper that has no evidential value. See Amaizu vs. Nzerube (1989) 4 NWLR part 118 page 755. It has to be said though that it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed. For example, where parties do not deny the existence of a contract of affreightment, the fact that they did not sign it cannot be a ground that they are not bound by it, barring a statutory provision. See Awolaja vs. Seatrade GBV (2002) 4 NWLR part 758 Page 520 at p.532.
Exhibit ‘C’ which is the document that is complained about as not being signed is a Deed of Conveyance dated 12th April 1976 and registered as No.39 at page 39 in volume 1928 of the Register of Deeds. Being a Deed, a signature is not necessary in Exhibit ‘C’. The learned authors of Chitty on Contracts, General Principles, 26th Edition at page 24 state that at common law a signature is not essential for a deed provided the deed was sealed and delivered. The learned authors of the said book also stated at page 3 of the book that a contract under seal will bind the promisor without any acceptance by the promisee. It is therefore not the law that Exhibit ‘C’ has no probative value because it is not signed by the respondent and the 1st appellant. It is a deed, and a signature is not essential.
In distinguishing the case of Sayinna vs. AIB & Or (supra) from this case, learned counsel as earlier mentioned urged that the appellants in this case expressly pleaded fraud. It is true that the appellants expressly pleaded fraud as shown in paragraph 15 of their Amended Statement of Defence and Counter-Claim at page 7 – 11 of the record. Expressly pleading fraud is one thing, proving it is another. It is not the case here that the fraud was proved. In any case, the proof required will have to be one beyond reasonable doubt, fraud being a crime.
I am satisfied that issue 2 also must be resolved against the appellants.
I now turn to issue 3 which is whether the appellants were not in the circumstances of the crime entitled to succeed on their counter-claim.
With regard to this issue, it will be recalled that appellants’ counsel submitted that the appellants established acts of ownership through DW2, a carpenter that was put on the land by the appellants.
In the case of Idudun vs. Okumagba (1976) 9 & 10 SC 246 – 250 which qualifies to be regarded as the locus classicus on the ways of proving ownership of land in Nigeria, one way stated there and which the appellants’ counsel contended was established by the appellants, is proof of acts of ownership. Acts of ownership as a way of proving ownership of land as decided in Idudun vs. Okumagba et al must not be abbreviated. What is required to be proved is not acts of ownership however slight, but acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the owner.
In this case, the appellants pleaded in paragraph 8(b) of their Amended Statement of Defence and Counter-Claim as follows:
“The 1st defendant Permitted one of their tenants an Iboman and a furniture maker to use the undeveloped portion as his workshop and plant cassava thereon. This he did for around fifteen (15) years”.
Contrary to the above pleading that an Iboman was put on the land, DW2 who testified that he was put on the land by the 1st appellant and that he established a furniture business there denied that he was an Iboman. He claimed to be an Edo man. He gave his name as Christopher Adekunle, which gives the impression, considering the surname, that he is a Yoruba man. One must quickly add that nothing debars anyone from taking a name of his fancy. See Offoboche (2006)13 NWLR part 997 page 298 at 304. Giving the evidence of DW2, it is difficult to say that it is positive enough to warrant the inference that the appellants are the owners of the land. The evidence of DW2 falls short in terms of credibility and certainly and does not measure up to the quality of evidence led by the respondent. I will also resolve issue 3 against the appellants.
Having resolved all three issues against the appellants, it remains for me to say that I find no merit in the appeal. It is accordingly dismissed. I award N50,000 costs against the appellants and in favour of the respondent.
MONICA B. DONGBAN-MENSEM, J.C.A.: My learned brother Daniel-Kalio, JCA has fully addressed all the issues raised and argued in this appeal. I agree entirely with the lead judgment and do not have anything useful to add. This appeal is without merit and is hereby dismissed with the cost as ordered in the lead judgment.
ADAMU JAURO J.C.A.: I have been privileged before today of reading the lead judgment of my learned brother, O. Daniel-Kalio, JCA, just delivered. I completely agree with him that there is no merit in this appeal.
I adopt the reasoning and conclusion contained in the lead judgment as mine. I also dismiss the appeal as lacking in merit. I abide by the consequential orders made, including that of costs.
Appearances
O. O. Ogungbade with O. O, Adelusi and O. A. Ojo For Appellant
AND
N.O.O. Oke (SAN) with A.O. Oladele, O.S. Akinbode and M.E. Ejims For Respondent
