MADAM ADEDOYIN AYODEJI & ORS v. ALHAJA AFUSATU O. OTITOLOJU (2016)

MADAM ADEDOYIN AYODEJI & ORS v. ALHAJA AFUSATU O. OTITOLOJU

(2016)LCN/8322(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/L/353/2009

RATIO

COURT: IN WHAT SITUATION CAN THE APPELLATE COURT INTERVENE AND RE-EVALUATE EVIDENCE
It is settled that it is within the power of the trial court which had the privilege of observing witnesses to make findings of fact particularly relating to credibility of witnesses. However, where it is shown that a trial court:
(a) Made improper use of the opportunity it had of seeing and hearing witnesses; or
(b) Did not appraise the evidence and ascribe probative values to it; or
(c) Drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice;
the appellate court will intervene and re-evaluate the evidence. That is exactly what has happened in this case. The trial court did not properly evaluate the evidence led before it, drew wrong conclusions from proved and accepted evidence and made improper use of the opportunity it had of seeing the witnesses of trial and as a result it’s decision is perverse and this Court has a duty to intervene to avoid miscarriage of justice. See Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt.1388) 332397 G-H. per. CHINWE EUGENIA IYIZOBA, J.C.A.

COURT; WHEN IS A COURT’S DECISION PERVERSE

A decision is perverse when it ignores the facts or evidence and when considered as a whole it amounts to a miscarriage of justice. Odiba v Azege (1998) 9 NWLP (Pt.566) 370 at 380 D-E. Where as in the instant case a trial Court fails to make a finding on relevant fact, an appellate Court is duty bound to make its own findings of fact if there is preponderance of evidence before it from the admissible evidence to draw the correct legal conclusion, inference and deduction. See Odiba v Azege (1998) 9 NWLR (Pt.566) 370 at 384 A-B. per. CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. MADAM ADEDOYIN AYODEJI
2. MR. RASAKI ADEGUNWA
3. MR. OLADIPUPO ADEGUNWA Appellant(s)

AND

ALHAJA AFUSATU. O. OTITOLOJU Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State in Suit No. CA/L/353/09 delivered on the 5th day of October, 2007 dismissing the claims of the Appellants against the Respondent and another person, Mr. Alex Motunrayo. The said Mr. Alex Motunrayo who was the 2nd Defendant at the trial Court did not participate in the proceedings in that Court and based on the application of the Appellants dated 5/5/11 this appeal was discontinued against him and his name was struck out.

The Appellants as claimants in the lower Court instituted this action claiming the following reliefs against the said Defendants in their Amended Statement of Claim dated 21st April, 2004:
“(q) A Declaration that the Claimants are the owners of the piece or parcel of land and the house built thereon situate at N0. 44 Oniwaya Road, Agege, Lagos and are therefore entitled to possession of same and appurtenances,
(b) A Declaration that the 1st Defendant had incurred forfeiture on the ground of serious misbehaviour as a Tenant /Developer in respect of the said land and the building

thereon.
(c) A Declaration that the sale of the said property by the 1st Defendant to the 2nd Defendant or any other person without the claimants’ authority is null and void and of no effect.
(d) An order of possession of the said land and the building thereon to the Claimants.
(e) An order of Court revoking or/and setting aside all documents of title issued by the 1st Defendant to the 2nd Defendant in respect of the land and the building thereon.
(f) The sum of 540,000 being rents payable to the Claimants after the expiration of the alleged 15 years development lease contract purportedly entered into by the Claimants with the 1st Defendants from 1998 to January 2001 and mesne profit at the rate of N15,000.00 per month until possession is given up.
(g) An order of injunction against the Defendants from selling the property or/and ejecting tenants therefrom.”

The case of the Appellants is that the piece of land situate at No. 44 Oniwaya Road, Agege, Lagos and the building thereon which was owned by Madam Alice Jacob Onasanya, their Aunt, was inherited by them under Ijebu Ososa native law and custom on her death in 1987. They traced

their root to the said Madam Alice Jacob Onasanya as her closest relatives, and this point is no longer on issue in this appeal having been resolved by the trial Court.
They claimed that the Respondent in the life time of Madam Alice Jacob Onasanya, but while she was old and sickly, sought her permission or consent and that of the Kawonuse branch of their Adegunwa family to renovate and rebuild the old mud house on the said property and consequently the Respondent was orally granted the permission to rebuild the house and to hold same for a period of 15 years in order to recoup her investment thereon. The Appellants claimed that the said term of 15 years expired in 1998 but the Respondent refused to surrender possession. Following the death of Madam Alice Jacob Onasanya intestate in 1987 and not being survived by any husband or child the Appellants claimed that the property devolved on them as the closest relatives of the deceased from their Kawonuse branch of the Adegunwa family.
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They claimed that the Respondent has sold the property to the 2nd Defendant, Mr. Alex Motunrayo, which she does not have the right to do hence they brought this action

against them.

The Respondent on her part denied that there was any development lease between her and the Appellant and/or Madam Alice Jacob Onasanya. Instead, she claimed that Madam Alice Jacob Onasanya sold the property in her life time to one Alhaji Mutairu Ojulari in May, 1981. Subsequently in the month of June in the year 1985 the said Alhaji Mutairu Ojulari sold the property to the Respondent. She tendered receipt evidencing the transactions which included another receipt showing that the 2nd and 3rd Appellants collected money from her in respect of the same property.

In reaction the Appellants denied knowledge of any such sale notwithstanding that the names of the 2nd and the 3rd Appellants appeared on these documents as witnesses. The Appellants tendered some documents to show that at some period after May, 1981, Madam Alice Jacob Onasanya was still exercising control over the property as the owner. They also called a handwriting expert to controvert the claim that the 2nd and 3rd Appellants signed the documents by which Madam Alice Jacob Onasanya transferred her interest to the said Alhaji Ojulari and the one by which Alhaji Ojulari sold the

property to the Respondent.

After hearing and considering the evidence of witnesses called by the parties, the trial Judge found that Madam Alice Jacob Onasanya sold her property as alleged by the Respondent and consequently dismissed the claims of the appellants.

The Appellants being naturally dissatisfied with the judgment appealed to this Court. The relevant Notice of Appeal is Appellants’ Second Further Amended Notice of Appeal dated 11th December, 2013 which was filed on 31st December, 2013 but was deemed properly filed by this Court on 22nd June, 2015. It contained 15 grounds of appeal.

Parties exchanged their briefs of arguments while the Appellant filed a reply brief on 31st December, 2013 which was also deemed properly filed by this Court on 22nd June, 2015.

I have gone through the briefs of argument and I do not see any reason why the Appellant should have filed a reply brief in this case. Save for the feeble contention of the Respondent that Appellant’s issue 6 did not arise from any ground of appeal, the Respondent did not raise any new issue in his brief of argument and the reply brief filed was only used as avenue to reargue

the appeal and this is not permissible by the Rules. The Appellants’ issue 6 is not a new issue as it was raised of the trial Court and the issue arose from both the judgment of the trial Court and ground M in the 2nd Further Amended Notice of Appeal.

It is the general practice since the introduction of brief writing in our appellate Courts that there may be need for an appellant to file a reply brief when a new issue of law or new argument is raised in the respondent’s brief.
In other words, where a respondent’s brief raises issues or new points of law not covered in the appellant’s brief, an appellant should file a reply to deal with such new points. See Nwali v. State (1991) 3 NWLR (PT.182) 663. A reply brief by an appellant, where desirable, should not be used to either extend the scope of the arguments in the appellant’s brief or to raise issues that did not arise as new issues or matters in the respondent’s brief.
I will therefore discountenance the Appellants’ Reply Brief as the Appellants used same as avenue to re-argue their appeal.

In their second Further Amended Notice of appeal, the appellants raised 15 grounds of appeal out

of which their counsel formulated 10 issues for determination. The Respondent on the other hand has formulated only three issues for determination.

The issues formulated by the Appellants are as follows:
1. Whether what is admitted in the pleadings needs any further proof.
2. Whether there is any reliable evidence before the learned trial Court that Madam Alice Onasanya sold the subject matter of this appeal to Alhaji Mutairu Ojulari that he could sell to the Respondent.
3. Whether it is proper for the learned trial Court to use the alleged signature of the 2nd and 3rd Appellants on Exhibits D1A and D1C to conclude that Madam Alice Onasanya sold the land in dispute to Alhaji Mutairu Ojulari.
4. Whether it is right for the learned trial Court to reject Exhibit P1B, P1H, P1I and P1J, P1K and P1L and hold that they do not impress him.
5. Whether it was Proper for the learned trial Court to reject the expert opinions /report and testimony of PW2 when there was no other expert opinion or any evidence at all contrary to the evidence and the report of the PW2.
6. Whether there is anything in the evidence of the Respondent that

could lead the learned trial Judge to hold that the balance of probabilities tilts towards the defence.
7. Whether issue of capacity of the Claimant to sue was an issue before the trial Court.
8. Whether it is the burden of the Respondent to proof (sic) that the 2nd Appellant signed Exhibit D1A and D1C.
9. Whether the 3rd Appellant pleaded and proof (sic) forgery.
10. Whether the decision of the learned trial Court is the actual result of a true imaginary scale of justice.

The three issues of the Respondent areas follows:
1. Whether there was a sale of the property in dispute to any person by the owner, Madam Alice Jacob Onasanya during her life time.
2. Whether the Appellants proved their case against the Respondent to the standard required by law of the lower Court.
3. Whether the judgment of the trial Court is against the weight of evidence.

I am of the view that the crucial issue required for the resolution of this appeal is:
Whether there was a sale of the property in dispute to any person by the owner, Madam Alice Jacob Onasanya, during her life time as to render the property in dispute not part of her

estate upon her death in 1987.

Arguing this appeal, the learned counsel for the Appellants, Mr. Omoniyi Akinmola, Esq. contended that what is admitted needs no proof. He contended that the Appellants’ averment in paragraph 19 of their Amended Statement of Claim that Madam Alice Onasanya did not sell the property in dispute in her life time was admitted by the Respondent and consequently, they cannot be heard to contend otherwise.

I must say straight away that what happened was that midway in this matter and after the Defendants had filed their Joint Statement of Defence, the Appellants amended their Statement of Claim. The Appellants had pleaded in paragraph 19 of their original Statement of Claim that the 1st Defendant erected a building on the land in dispute and this fact was admitted by the Defendants in paragraph 2 of their Joint Statement of Defence. However, when the Appellants amended their pleadings, paragraph 19 of the Amended Statement of Claim now contains the averment that Madam Alice Onasanya died in 1987 and never sold the property in dispute to anybody prior to her death but left it for the inheritance of her family. The Defendants

did not make any consequential amendment of their pleading. As a result, the Appellants now contend that since the Respondent never amended their pleadings they would be deemed to have admitted paragraph 19 of the Amended Statement of Claim by virtue of paragraph 2 of the Joint Statement of Defence. I am not ready to accept this argument as correct in view of the averment in paragraph 5 of the Defendants’ Joint Statement of Defence wherein they specifically averred that Madam Alice Onasanya on the 11th of May, 1981 sold the property in dispute to Alhaji Mutairu Ojulari in the presence of 2nd and 3rd Appellants. To accede to the argument of the learned Appellants’ counsel in this regard will amount to placing undue regard to technicality of the expense of the ends of justice. The duty of the Court is always to endeavour at all times to do justice by resolving the real issues in contention between the parties on the merits. See the case of University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143 at 154 H. I hold therefore that there is no admission of the averment in paragraph 19 of the Appellants pleading by the Respondent as contended by learned counsel to the

Appellants.

Learned counsel further stated that the trial Court found that the Appellants made out their case that they are entitled to inherit the property of the deceased Madam Alice Onasanya under the customary law and argued that there was no evidence that the deceased sold the said property to any one in her life time. He submitted that Exhibit D1A relied upon by the Respondent as evidence of the transaction between Madam Alice Onasanya and Alhaji Ojulari did not show that Madam Alice Onasanya or her agent signed the document and consequently, that document cannot therefore transfer her interest in the property to Alhaji Ojulari. He said that Exhibit D1A did not contain the minimum requirements of a memorandum in writing that can transfer interest or title on land. He submitted that if Exhibit D1A did not transfer anything to Alhaji Ojulari, he in turn can transfer nothing to the 1st Respondent in this case. He contended that the learned trial Judge ought not to have used these documents and the oral evidence of the DW1, DW2 and DW4 to find that there was a sale of the property in dispute. Learned counsel for the Appellants was very dissatisfied with

the refusal of the trial Court to accept the evidence of PW2, the handwriting expert, in the face of failure by the Respondent to produce any contending or contrary expert evidence, according to him. He questioned the veracity of the oral evidence supplied by the defence witnesses who claimed to have seen the 2nd and 3rd Appellants sign Exhibits D1A, D1B and D1C as, according to him, their evidence was contradictory and unacceptable. Despite the contradictions, the trial Court still regarded the evidence as credible and unshaken under cross-examination. He submitted that weight of evidence rather tilted in favour of the Appellants and not in favour of the Respondent as found by the trial Court. He submitted that the Respondent failed to discharge the burden of proving that the 2nd and 3rd- Appellants signed these documents. Counsel argued that it was the Respondents that contended that the 2nd and 3rd Appellants signed these documents so she must establish her contention and that to him includes proving that the 2nd Appellant who is an illiterate signed the documents. He submitted that she did not discharge the onus on her. He further argued that the Appellant

pleaded and proved the forgery of Exhibits D1A, D1B and D1C by the Respondent contrary to the finding of the trial Court that forgery was not pleaded and proved. He referred to the evidence of PW2 and submitted that it established that the documents were forged. He submitted that under cross-examination, the evidence of the defence witnesses that the 2nd and 3rd Appellants signed these collapsed. He submitted that the entire evidence led weighed in favour of the Appellants and not the Respondent as found by the trial Court. He submitted that the judgment of the trial Court is perverse and ‘a total failure of justice’ according to counsel as evidence was not properly evaluated. Under his issue 10, counsel restated of his previous arguments.

With respect to the Appellants’ brief, I must observe that based on proliferation of issues by the learned Appellant counsel, his arguments of the issues he formulated were very repetitive and prolix. Apart from this, counsel did not proof read his brief consequently he filed some with many typographical errors. For instance, in paragraph 14.02 of the Appellants brief the words “all embarrassing” was used in place of

“all embracing”. There are many errors of this nature. These coupled with the fact that brief was written in 12 point size single line characters made it one not easy to read.
Counsel even cited cases in his brief of argument without supplying the citation either in the body of the brief or in the attached list of authorities.
Cases in the said list were not arranged in alphabetical order to make it easy for one to locate the citations, and some of the cases were listed as many as four times.

Brief writing is a very serious business and must be taken very seriously not only in the argument advanced by counsel but also in the manner of presentation of the argument. There is also need not to make same unduly verbose, repetitive and inelegant. Learned Appellants’ counsel must improve in this regard.

The Respondent on her part through her learned counsel, Olawale Kareem, Esq. argued that that there was abundant evidence that the property in dispute was sold by Madam Onasanya in her life time to Alhaji Ojulari as found by the trial Court and that the finding was not perverse. He argued that the sale was to the knowledge of the 2nd and 3rd

Appellants and the property was resold to the 1st Respondent as evidenced by Exhibits D1A, D1B and D1C.The evidence of sales was strengthened by the oral testimony of DW1, DW2 and DW4 who witnessed the transactions. To him, the trial Judge correctly found that the evidence of PW2 was of no assistance to the Court. He urged this Court to disregard all the arguments of the Appellants that there was no sale of the property. He submitted that the Appellants did not prove their case against the Respondent to the standard required by law and should blame themselves for that and not the trial Court.

It must be noted that the Appellants launched serious attack on the trial Court, contending that it made a case for the Defendants which they did not make while assessing the evidence of the PW. 2. While the Respondent’s learned counsel admitted that Court need not make a case for a party, he submitted that the real issue was that the Appellants failed to discharge the burden of proof on them and so their case was dismissed. With reference to the argument of the Appellants that the Respondent’s evidence on sale of the property was replete with contradictions and

inconsistencies, counsel submitted that that the Appellant did not highlight the material contradictions and that the point did not arise from the ground of appeal.
He then submitted that the Appellant cannot raise such new issue, not raised and considered of the lower Court, an appeal without leave of Court unless special circumstances are shown to exist. He submitted that the judgment of the trial Court is not against the weight of evidence relying on the principle in Mogaji v. Odofin [1978] 4 SC 91 at 93. He submitted that civil cases are decided on balance of probabilities and when the evidence in this case is weighed, it weighs heavier on the side of the Respondent justifying the decision of the trial Court. He submitted that all the findings of the trial Court are supported by evidence.

RESOLUTION:
As I have said earlier in this judgment, the Appellants did not raise any new issue in this appeal, as the arguments of the learned Appellants’ counsel on the issue of the inconsistencies in the evidence of sale supplied by the Respondent was described by the trial Court as “mere hot air”. While resolving the issue of whether or not there was

sale of the property in dispute by the owner in her life time, the trial Court, on pages 284 to 285 of the records, said:
“I agree with the defence that the denial of the signature of Pw1 on the exhibits amounts to an allegation of fraud which carries a higher burden of proof. But fraud was not pleaded neither can if be said that the claimants gave evidence proving beyond reasonable doubt that there was a forgery. The burden of proof in this matter without any pleading of fraud is still the balance of probabilities and preponderance of evidence.
Now on the side of the defence, in proof of the allegation that Madam Onasanya sold the house I have the testimonies of DW1, 2 and 4, the Persons directly involved in the transactions as well as Exhibits. Much of the submissions of learned counsel to the claimants on these documents is mere hot air, with all due respect to him. Exhibit D1A by itself admittedly does not do much for the case of the 1st Defendant for it only states that money was received from the 2nd Defendant without stating by whom, but when if is read together with Exhibits D1B and D1C one gets a clearer picture. It is telling that though the

Claimants deny Exhibit D1C, they rely on it as evidence that they inherited the property in dispute as stated by their counsel in paragraph 4.16 of his address. Those three documents back up tie case of the defence.
On the other side of my imaginary scale, I have the denial of Pw.1 who did not impress me as a witness of truth, the opinion of Pw. 2 which carries no weight with me and some documents allegedly signed by Madam Onasanya after May 1981. It is clear that Pw.1 does not have the support of his family (nor do the other claimants); he admitted under cross-examination that:
‘None of the three claimants is head of Adegunwa family. It is true that Suleiman the head of the family ordered us not to prosecute this action…’

Again he stated:
‘Adegunwa family does not consent to this suit.’
I very much doubt that the Adegunwa family would have been reticent if matters were as PW.1 stated. I firmly believe that his interest in this matter is essentially selfish. pw. 2 did not have enough information to make any meaningful or conclusive analysis.
As PW. 2 did not have enough information to make any impressive or conclusive analysis

his opinion nay be genuine but if remains just an opinion … compared with the eye witness accounts of the defence witnesses who impressed me as forthright and transparent witness of truth, the balance of probabilities fills towards the defence. On preponderance of evidence, I find and hold that Madam Onasanya sold the property in dispute before she died.”
The above findings of the trial Court have been strenuously attacked by the Appellants in their brief of argument.

In the first instance, I agree with the finding of the trial Court that no allegation of fraud was raised in the pleading of the Appellants. Therefore, the standard of proof is on the balance of probabilities and preponderance of evidence as found by the trial Court for that is what obtains in civil cases generally.

In attacking the decision of the trial Court, the Appellants focused on Exhibits D1A, D1B, D1C and the oral accounts of how they were made and signed given by the Respondent. These documents are reproduced at pages 92 to 94 of the record of appeal. The trial Court found, rightly in my view that the success or failure of the claims of the Appellants depended on

whether in fact Madam Onasanya sold her property before she died. The first document of sale to be tendered by the Respondent was Exhibit D1A which was brought in through DW.1. This document acknowledged the receipt of the sum of N7,000.00 from Alhaji Mutairu Ojulari as consideration for the land in dispute. It was dated 11th May, 1981. This receipt was signed by DW. 1 who was solicitor for Alhaji Mutairu Ojulari in the transaction as the receiver of the money. It was not signed by Madam Alice Onasaya or his agent. In his evidence in chief on this matter, DW.1 said:
“2. I know one Alhaji Mutairu Ojulari who bought a property then known as B3/74 Oniwaya rood, Agege, Lagos State now known as 41 Oniwaya Road, Agege, Lagos State from one Madam Alice Onasanya sometimes in 1991.
3. That the said property is the subject matter of this action.
4. That the said Alhaji Ojulari consulted me in my capacity as his solicitor to prepare a purchase receipt between his humble self and Madam Alice Onasanya the original owner of the property.
5. That I carried out his instruction and a purchase receipt dated 11th day of May, 1981 was prepared by me

legalising the transaction.”
(see page 86 of the record)

Under cross-examination he said:
“I was not a party to the transaction. I only acted as solicitor to the 1st defendant and Alhaji Ojulari. They were both my clients. In respect of Exhibit D1A I acted for Alhaji Ojulari.”(See page 137 at the record) These were the evidence that the Respondent relied upon to contend that Alhaji Ojulari purchased the property in dispute from Madam Alice Onasanya during her life time and the trial Court accepted same and found that there was a sale of the property by Madam Alice Onasanya to Alhaji Ojulari. I wonder how these pieces of evidence constitute evidence of sale of the property in dispute by the owner to Alhaji Mutairu Ojulari. I do not see how Exhibit D1A could support such finding. The document was not signed by Madam Onasanya and therefore it cannot bind her. Moreover, the document was signed by the solicitor to the purchaser in that capacity. How can the solicitor to the purchaser prepare a receipt on behalf of the purchaser and also sign the receipt he prepared as the person who received the money which would have been paid by the purchaser to

the vendor. This document does not show that any money passed from the purchaser to the vendor as consideration f or the sale of the property. DW.1 in the circumstance lacked the capacity to sign the purchase receipt on behalf of the vendor; otherwise he would be representing conflicting interest. The fact that the 2nd and 3rd Appellants were alleged to have witnessed or in fact witnessed the transaction cannot legitimise it because they merely signed the document as witnesses. They did not represent the interest of the Vendor. What can be imputed to them by virtue of the document, assuming that it is in fact true that they signed it, is that they witnessed the receipt or handing over of the sum paid by Alhaji Ojulari to Chief V. A. Odunaiya and nothing more. It is not evidence that any sum was paid to Madam Onasanya as the consideration for purchase of her said property by DW.2. Money only exchanged between the purchaser and his solicitor, not between the purchaser and the vendor. I hold that it is wrong for the trial court to hold that by virtue of exhibit D1A the property in the land in dispute passed from Madam Alice Onasanya to Alhaji Mutairu Ojulari.

If the Respondent by virtue of Exhibit D1A did not establish that money and title to the property in dispute passed from Madam Onasanya to Alhaji Ojulari, there is no way Alhaji Ojulari can transfer any interest at all to the Respondent in 1985 by Virtue of Exhibit D1B as she claimed. This is because Alhaji Ojulari did not prove that he acquired any interest in the land in dispute from Madam Onasanya and so he cannot transfer any interest to the Respondent. He cannot give what he did not have. The maxim in support of this is nemo dat quod non habet. Adeagbo v. Williams (1998) 2 NWLR (pt.536) 120 at 128 E-F. Based on the foregoing I accept the argument of the Appellants that there is no evidence before the trial Court which proved that the property in dispute was sold by Madam Alice Onasanya to any person in her life time.

While assessing the probative value of these pieces of evidence, the trial Judge remarked thus:
“Exhibit D1A by itself admittedly does not do much for the case of the 1st Defendant for if only states that money was received from the 2nd Defendant without stating by whom, but when it is read together with Exhibits DIB and DIC one

gets a clearer picture.”

I must ask, what clearer picture does one get when Exhibit D1A is read together with Exhibits D1B and D1C? I do not see anything in these documents that validate Exhibit D1A as the documents were not made between the same parties. Exhibit D1B was the document by which DW. 2 Respondent. As I have said above, DW. 2 did not acquire any interest so he had nothing to transfer to the Respondent. Exhibit D1C was the document by which the Respondent claimed to have paid the sum of N10, 000.00 to the 2nd and 3rd Appellants as their share of the proceeds of sale of the property in dispute. Exhibit D1A was made in 1981 while Exhibit D1B was made on 28th June, 1985 and D1C was made on 24th July, 1986. One would ask: which proceeds of sale was being shared by this document? Was it the alleged sale in 1981 or the one of 1985? One cannot tell. Exhibit D1C further contains the following statement referring to the property in dispute in this case:
“The said property was inherited jointly by Alhaji Rasaki Adegunwa, Alhaja Afusat Olanrewaju Otitoloju and Mr. Oladipupo Adegunwa from the estate of the said Madam Alice Onasanya.” (See page 94 of

the record)

This document was said to have been made on 24th July, 1986. While it was common ground between the parties that Madam Alice Onasanya died in 1987, how could the parties mentioned therein inherit her estate before her death? Also, evidence already established by proof of relationship and admitted by the Respondent in this case is that if is only the Appellants that could inherit the estate of the deceased Madam Alice Onasanya, how come the Respondent is included as one of the inheritors while the 1st Appellant is excluded? From what transaction did they receive the proceeds of sale that they shared by virtue of Exhibit D1C? If anything, Exhibit D1C is an admission by the Respondent that the property in dispute was not sold in the life time of Madam Alice Onasanya otherwise she could not have claimed to have inherited same jointly with the 2nd and 3rd Appellants. I have restrained myself from saying that these documents appear spurious, but I do not know how else to describe them.
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Further to the above, it is common ground between the parties that Madam Alice Onasanya died in 1987. The transactions evidenced by Exhibits D1A, D1B and D1C all

occurred in her life time yet she did not sign any of the documents. Anyway she cannot sign any documents by which her estate was inherited while she was alive. When all these are considered in the light of the oral evidence given by the parties to the alleged transaction, it does not lend any credence to the claim that there was sale of the property in her life time.

DW.1, DW.2 and DW.4 who claimed to be eye witnesses to these transactions gave conflicting evidence regarding the signing of the documents. First, Dw.2 under cross-examination claimed that he signed Exhibit D1A and could recognise his signature on the document, when in actual fact his signature was not on the document at all. (See the last three lines on page 137 of the record). At page 138 of the record, DW. 1 stated that Exhibit D1A was signed in his chambers, while DW. 4 at page 143 of the record stated under cross-examination that the transaction happened in her own house at 42 Oniwaya Road, Agege, Lagos and that Madam Alice Onasanya asked her to bring the lawyer to the house. These inconsistencies are very crucial to testing the veracity of the evidence of these persons who claim to be

eye witnesses of the transaction, particularly in the light of the denial of the 2nd and 3rd Appellants of any know ledge of the transactions. It should have signalled to the mind of the trial Judge of the need to be very cautious in handling this matter, particularly when it was revealed that Alhaji Mutairu Ojulari was a blood brother to the Respondent in this case. Despite these, trial Court observed that the “eye witness accounts of the defence” witnesses impressed him as forthright and transparent witnesses of truth and tilted the balance in favour of the defence”. The trial Court also considered PW1 not to be a witness of truth but that of a selfish person. I do not share these views in the light of what I have shown above. Having regard to the fact that it was DW1 the solicitor to the alleged purchaser that signed Exhibit D1A, the inherent inconsistencies in Exhibit D1C and also the inconsistencies in the evidence of the so called eye witnesses about the making of these documents, I do not believe that the defence witnesses were forthright and transparent about this matter.

While the trial Court is of the view that PW1 was not a witness of truth

because he admitted under cross-examination that Suleiman, the head of the Adegunwa family ordered the Appellants not to prosecute this action and that the Adesunwa family did not consent to the action; in my view, a witness who under cross-examination admitted easily the facts that are against him without trying to cover some up under any guise is indeed a witness of truth. In other words, contrary to the views of the trial Court, I consider PW1 a witness of truth because he easily admitted facts that were against him under cross-examination. He is unlike the defence witnesses who concocted documents that cannot be rationally explained. Further, the trial Court had also previously found that only the Appellants, as opposed to the whole Adegunwa family members, had the right to file this action for themselves being the proper persons to inherit the estate of Madam Alice Onasanya as her closest relatives. It ought not therefore to have relied on the fact that the Adegunwa family did not support the action as a matter that should work against their right or interests in instituting the action, particularly when the 1st Respondent and the said Head of the

Adegunwa family are not from their own branch of the family: Kawonuse family branch.
I do not agree that the fact that PW1 is intent or “selfish” in pursuing his right should deprive him of the enjoyment of that right because that is also what the 1st Respondent and her brother, Alhaji Ojulari are doing – pursuing vigorously their rights or “selfish” interest.
It is settled that it is within the power of the trial court which had the privilege of observing witnesses to make findings of fact particularly relating to credibility of witnesses. However, where it is shown that a trial court:
(a) Made improper use of the opportunity it had of seeing and hearing witnesses; or
(b) Did not appraise the evidence and ascribe probative values to it; or
(c) Drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice;
the appellate court will intervene and re-evaluate the evidence. That is exactly what has happened in this case. The trial court did not properly evaluate the evidence led before it, drew wrong conclusions from proved and accepted evidence and made improper use of the opportunity it had of

seeing the witnesses of trial and as a result it’s decision is perverse and this Court has a duty to intervene to avoid miscarriage of justice. See Oke v. Mimiko (No. 2) (2014) 1 NWLR (Pt.1388) 332397 G-H.

A decision is perverse when it ignores the facts or evidence and when considered as a whole it amounts to a miscarriage of justice. Odiba v Azege (1998) 9 NWLP (Pt.566) 370 at 380 D-E.

Where as in the instant case a trial Court fails to make a finding on relevant fact, an appellate Court is duty bound to make its own findings of fact if there is preponderance of evidence before it from the admissible evidence to draw the correct legal conclusion, inference and deduction. See Odiba v Azege (1998) 9 NWLR (Pt.566) 370 at 384 A-B.

I am of the strong view that the trial Judge in this case has failed to make proper findings and deductions from the evidence before it and most of these pieces of evidence are documentary which makes this Court in as good a position as the trial Court to make the proper findings.

Based on what I have said above, I am of the view that there is no evidence before the Court that the said Madam Alice Onasanya sold the

property in dispute in her life time. Contrary to the findings of the trial Court the property in dispute formed port of her estate which should be inherited by her closest relatives, that is the Appellants. The trial Court having earlier found that the Appellants are indeed her closest relatives who are entitled to inherit the property, he erred in giving judgment against them.

I arrive of this decision without considering the effect of the evidence of PW.2. The trial Court was not ready to accord any probative value to the evidence of this witness because, the witness did not in his evidence identify clearly the source or author of the signatures with which he compared the signatures in issue in the tests he carried out. I think that the trial Judge was right on that point. The evidence of the PW.1 ought to have clearly identified the author of the signatures on the documents which he used to compare the ones in issue in this case to enable the trial Court properly assess his expert opinion. That notwithstanding, I have been able from the available evidence from both sides to find that the property in dispute in this case was not sold by the deceased

and therefore was liable to be inherited by the Appellants as they claimed. The claim of the Appellants for mesne profits is not denied or controverted in any way.

In the end, I hold that this appeal succeeds and I allow it. I hold that the Appellants are entitled to possession of the property variously described as No. B3/74 Oniwaya Road, Agege, Lagos and also as No. 42 or No.44 Oniwaya Road, Agege, Lagos being property they inherited from their deceased close relative, Madam Alice Onasanya and which formed part of her estate on her death in 1987.

Thereby declare any purported sale of the said property by the Respondent null and void and of no effect. The Respondent, her vendors, agents, assigns or other persons claiming through or from her in any manner are hereby restrained from interfering with the rights of the Appellants in the said property. The Respondent is ordered to pay mesne profits to the Appellants of the rate of N15, 000.00 per month from January, 2001 till possession is given up by her. I make no order as to costs.

SIDI DAUDA BAGE, J.C.A.: I read in advance the judgment of my learned brother Chinwe Eugenia

Iyizoba, JCA just delivered and I also agree that this appeal succeeds and I too allow it. My learned brother has ably and exhaustively dealt with the issues submitted for the determination in this appeal. I adopt both her views expressed in the judgment and the conclusion thereof.

Accordingly, I also hereby declare any purported sale of the said property by the Respondent null and void and of no effect. I abide by all the consequential orders made therein. I also make no order as to costs.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Chinwe Eugenia Iyizoba, JCA granted me the privilege to read before now, the lead Judgment just delivered.

The Judgment has fully dealt with all the issues submitted for determination. I am in full agreement with the lucid Judgment which I adopt as my own with nothing useful to add.

Appearances:

OMONIYI AKINMOLA ESQ.For Appellant(s)

CHIEF OLAWALE KAREEMFor Respondent(s)

Appearances

OMONIYI AKINMOLA ESQ.For Appellant

AND

CHIEF OLAWALE KAREEMFor Respondent