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ADEYEMI & ANOR v. FABIKUN (2020)

ADEYEMI & ANOR v. FABIKUN

(2020)LCN/14380(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/IB/322/2012

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. CHIEF ADEDOKUN ADEYEMI 2. THE PROPRIETOR, STERLING COLLEGE IBADAN APPELANT(S)

And

HONOURABLE ADENIYI FABIKUN (Suing For Himself And On Behalf Of The Other Children/Beneficiaries Of The Estate Of The Late Oba Samuel Adegoriola Fabikun) RESPONDENT(S)

RATIO

WHETHER OR NOT WHERE A DOCUMENT WHICH PURPORTS OR PROVES TO BE TWENTY (20) YEARS OLD OR MORE IS PRODUCED FROM PROPER CUSTODY, THE COURT MAY PRESUME IT WAS EXECUTED AND ATTESTED BY THE PERSON BY WHOM IT PURPORTS TO BE EXECUTED AND ATTESTED 

It is trite that by virtue of Sections 155 and 156 of the Evidence Act, 2011, where a document which purports to or is proved to be twenty (20) years old or more is produced from proper custody, the Court may presume it was executed and attested by the person by whom it purports to be executed and attested. See NSIEGBE VS MGBEMENA (2007) 10 NWLR (PT. 1042) 364; OBAWOLE vs. WILLIAMS (1996) 10 NWLR (PT. 477) 146; THOMPSON VS AROWOLO (2003) 7 NWLR (PT. 818) 328. In AYANWALE VS ODUSAMI (2011) 18 NWLR (PT. 1278) 328, the Supreme Court, per Rhodes-Vivour, JSC held thus:
“Section 123 of the Evidence Act states that:
“Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.” PER OJO, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS MADE BY A LOWER COURT

The law is settled that an appellate Court will only interfere with the finding made by a lower Court when it is found to be perverse or where the findings are not supported by credible evidence on record. See SALEH VS BANK OF THE NORTH LTD (2006) 6 NWLR (PT. 976) 316; UNION BANK OF NIGERIA PLC VS AJABULE (2011) 18 NWLR (PT. 1278) 152; SARAKI VS KOTOYE (1990) 4 NWLR (PT. 144) 281. PER OJO, J.C.A.

NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): By a Writ of Summon filed 30/10/2009 at the Oyo State High Court, Plaintiff who became Respondent in this appeal sued the defendant who is the appellant in this Court claiming as follows:
A DECLARATION that the plaintiff (suing for himself and the other children/Beneficiaries of the Estate of the Late Oba Samuel Adegoriola Fabikun) is the person entitled to the Certificate of Statutory Right of Occupancy on the piece or parcel of land together with the developments thereon comprised in the Deed of conveyance dated 5th September 1966 and registered as No.21 at page 21 in volume, 941 of the Lands Registry in the office at Ibadan.
AWARD of the sum of N5 million against the defendants jointly and severally for trespass committed to the plaintiff’s land;
AN ORDER restraining the defendants, their agents and privies from further trespass on the land and premise the subject of these proceedings.
​An ORDER against the Defendants jointly and severally to render an account of all rents proceeds and monies of whatever nature that have accrued on the land and premises the subject matter

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of this suit from 1992 till date.

Upon the completion of pleadings, the case came for hearing before Bolaji – Yusuf J; (as she then was) who heard the case and delivered a comprehensive judgment on 17th October, 2012 granting the plaintiffs/respondents claims and dismissing the counter-claim of the defendant/appellant.

Upon being dissatisfied with the judgment of the Lower Court, the appellant on October 23, 2012 filed an appeal upon the following grounds:
GROUND ONE
I. The learned trial judge erred in law by holding that the expert opinion of the Defence Witness one ASP R.A. Onwuzuligbo in Suit No. I/1466/09 is unreliable and is not bound to accept his testimony and report to reach a verdict that Exhibit A dated 5/9/66 and registered as 21/21/941 was a forged document.
PARTICULARS OF ERROR
A. The said testimony and handwriting analyst report did show factual basis and that particulars and details stated before arriving at his conclusion.
B. The evidence of the expert on oath and the expert analyst report were admitted and unshaken under cross-examination were not fully considered by the trial Court in reaching that

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decision.
GROUND TWO
II. The learned Trial Judge erred in law by holding that the 1st Defendant/Appellant is a trespasser by letting the land in dispute to a tenant as from 1992 to date of judgment.
PARTICULARS OF ERROR
A. The Learned Judge did not consider the evidence of the 1st Defendant/Appellant and the documents tendered which showed that the 1st Defendant/Appellant’s father and predecessor-in-title had already taken over the land in 1967 before the death of the Claimant’s predecessor – in – title in 1969 and until the death of the 1st Defendant’s/Appellant’s predecessor-in-title in 1986.
B. The claimants/Respondent’s father and predecessor-in-title had been prevented from continuing his trespass and illegal possession of the land in dispute since 1967 when the 1st Defendant/Appellant’s father and predecessor-in-title threw him out of the land and remained in effective possession until shortly before death in 1986 when he transferred the ownership and possession of the said land to his son the 1st Defendant/Appellant.
C. The 1st Defendant/Appellant now Applicant took over the

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property long before 1992 in continuation of the exercise of long possession by his father and predecessor-in-title, late Z.A. Adeyemi who owned a large tract of land covering about 9.930 acres Exhibit C in Suit NO. I/1466/09 which had included the land in dispute.
III. GROUND THREE
The learned trial judge erred in law by failing to consider Exhibits C, E1, E8, E9, E10, E11 and E12 in Suit No. 1/1466/09, all of which were admitted in evidence in deciding the case.
PARTICULARS OF ERROR
A. The learned judge never considered Exhibits C, E1, E8, E9, E10, E11 and E12 in Suit No. 1/1466/09 in arriving at his judgment.
GROUND FOUR
IV. The learned trial judge erred in law by deciding that the defence of statute of limitation did not avail the defendant in this suit and cannot be relied upon by the 1st Defendant who gave evidence of letting the building to a tenant in 1992.
PARTICULARS OF ERROR
A. Having regard to the evidence of the 1st Defendant and evidence of the claimant that the land in dispute had been taken over by the 1st Defendant predecessor in title since 1967 which was before the death of the claimant’s

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predecessor in title in 1969 and before the death of the 1st defendant’s predecessor in title in 1986 the cause of action, if any, open to the claimant was before 1992 as held by the trial Court.
B. The 1st Defendant continued to exercise possession after the death of his father in 1986 which clearly showed that the statute of limitation was available as a defense to the 1st defendant in Suit No. I/1466/09.
GROUND FIVE
V. The learned trial judge erred when he held that the 1st defendant should render account from 1992 up to date.
PARTICULARS OF ERROR
A. The Claimant/Respondent agreed that the building was uncompleted and that the 1st defendant’s predecessor in title had taken over effective possession over 45 years ago and completed the buildings and rented them out. The 1st defendant’s predecessor in title and the 1st defendant expended considerable amount of money on the buildings and upon completion, rented them out. The 1st defendant is being ordered to render account without taken into consideration the expenses of the 1st Defendant’s own expenses.
GROUND SIX
VI. The trial judge erred in law in

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entering judgment for the claimant on findings of fact as supplied by the Claimant/Respondent and totally ignoring the evidence of the 1st Defendant/Appellant which was not shaken under cross-examination.
PARTICULARS OF ERROR
A. The trial judge relied its findings on presumptions when there was otherwise abundant credible oral and documentary legal evidence.
B. The trial Court failed to consider the material fact and issue of law raised thereon for the defence.
GROUND SEVEN
VII. The learned trial judge erred in law when, having rejected the evidence of the handwriting analyst, and bearing in mind the obvious disparity between the signature on Exhibit A and the signatures on Exhibits D, D1 and D2 she failed to examine and compare the signature on Exhibit A with the undisputed signatures of the Appellant’s father which are on Exhibits D, D1 and D2 in order to determine the genuineness and authenticity of the signature on Exhibit A, and consequently of the said Exhibit A.
PARTICULARS OF ERROR
A. The Appellant gave evidence that the signature on Exhibit A was not that of his Father, whilst the signatures which appeared on Exhibits

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D, D1 and D2 were his father’s signatures
B. The learned trial judge, having rejected the testimony of the expert, is duty bound to compare the disputed signature on Exhibit A with the undisputed signature on Exhibits D, D1 and D2 in the resolution of the fact in the issue. Namely, whether Exhibit A was executed by the Appellant’s father or not.
C. Learned trial judge’s failure to compare signatures in the disputed Exhibit A with undisputed signatures in Exhibit D, D1, D2 resulted in substantial miscarriage of justice, namely, entering judgment in favour of the Respondent.
GROUND EIGHT
VIII. The learned trial judge erred in law by ignoring material contradictions in the evidence of Respondent’s witness and arriving at the decision that the Respondent is entitled to judgment.
PARTICULARS OF ERROR
A. Respondent Witness (CW1) gave materially contradictory evidence.
B. Learned trial judge in view of the contradictory evidence of CW1, ought to have outrightly rejected his evidence and should have declined to act on the said evidence.
C. It is trite law that where a witness gives contradictory evidence on a

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material issue, the Court is duty bound to reject all the evidence of the witness and treat same as unreliable.
GROUND NINE
IX. The learned trial judge erred in law by ignoring the material contradictions in the evidence of the Respondent and proceeding to accept/act on same unconditionally.
PARTICULARS OF ERROR
A. There were material contradictions in the Respondents witness statement on oath, amended reply to statement of claim and testimonies under cross-examination.
B. Having regard to the material contradictions in the pleadings and evidence of the Respondent, learned trial judge should not have entered judgment in favour of the Respondent.
GROUND TEN:
X. The learned trial judge erred in law by holding that the Appellant was not entitled to succeed on his counter-claim.
PARTICULARS OF ERROR
A. In dismissing the Appellants’ Counter-Claim, learned trial judge ignored the Appellants unchallenged witness Statement on Oath that he had been in undisturbed possession of the disputed Land after the death of his father. Learned trial judge failed to give appropriate consideration to the Appellant’s unchallenged

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evidence that his father during his lifetime had expressly given him the disputed land.
B. It is trite law that undisturbed possession or gift inter-vivous of Land are acceptable ways of proving title to disputed Land.

From these grounds of appeal, the appellant formulated from these grounds of appeal. The appellant raised issues for determination as follows:-
Issues for determination
Whether learned trial judge was right or wrong in his decision that the Respondent’s cause of action was appellant’s act of continuing trespass and not title to disputed land to justify the non-application of the Limitation Law of Oyo State. (Grounds II, IV and VI).

Whether learned trial judge rightly or wrongly rejected the unchallenged expert evidence of DW2 on non-execution of Exhibit A by Appellant’s father? (GROUNDS I, III, VIII, IX & X).

Assuming learned trial judge rightly rejected Evidence of DW2, did the learned trial judge correctly evaluate the evidence before him before arriving at the decision to enter judgment in favour of the Claimant/Respondent. (GROUNDS 1, III, VII, IX & X).

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In response, the respondent presented four (4) issues for determination being;
Whether, the trial Court held that the claim before it was solely that of continuing trespass to the exclusion of other remedies/prayers.
Whether the Court did not rightly record, weigh and decide on the expert evidence presented before it and whether the decision in respect of the expert evidence was perverse.
Whether the evaluation of evidence by the Court, was incorrect and if so, whether, the evaluation led to a perverse decision.
Whether, or not the Court was correct in its decision that the Appellant had not shown evidence of ownership of the land by either his father or himself.

Statement of Fact
I would for balance adopt the statement of fact given by the appellant thus:-
The subject matter of this Appeal is the property situate at No.1, Queen Elizabeth II Road, Mokola, Ibadan. Appellant’s late father and the Appellant respectively have possessed the property as far back as 1967.
As admitted by the Respondent, since 1992, the appellant (Chief Adedokun Adeyemi) had put tenants in the disputed property who paid him rent regularly.

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The dispute in the Court below centered on the Respondents’ claim of ownership/title to the disputed property. The Respondent claimed that Appellant’s father sold the property to his father who entered into possession of same and occupied same until his death. Thereafter the Respondent was in possession until his possession was disturbed by Appellant in 1992 when the appellant started putting tenants in the disputed property and collecting rents from them. The Respondent as (Claimant in the Court below) therefore sought the following reliefs.
A. A DECLARATION that the plaintiff (suing for himself and the other children/beneficiaries of the Estate of the Late Oba Samuel Adegoriola Fabikun) is the person entitled to the Certificate of the Statutory Right of Occupation on the piece or parcel of land together with the developments thereon comprised in the Deed of Conveyance dated 5th September, 1966 and registered as No.21 at page 21 in Volume 941 of the Lands Registry in the office at Ibadan.
A. Award of the sum of N5 million against the Defendants jointly and severally for trespass committed to the Plaintiff’s land.

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  1. An Order restraining the Defendants, their agents and privies from further trespass on the land and premise the subject of these proceedings.
    C. An Order against the Defendants jointly and severally to tender an account of all rents, proceeds and monies of whatever nature that have accrued on the land and premise the subject matter of this suit from 1992 till date. (Page 2 of the Record of Appeal)
    The case of the Appellant in the Court below was that his father gave him the land as a gift prior to his death. Appellant denied sale/disposition of the property by his father to the Respondent’s father or any other person.
    Appellant pleaded that he put tenants who occupied the property and paid him rent. Incidentally the Respondent claimed account for the said rent collected by the Appellant with effect from 1992. The appellant specifically pleaded that Respondent’s suit was time barred. Appellant counter – claimed against the Respondent and sought the following reliefs from the Court below:-
    A. Declaration that the 1st Defendant is entitled to statutory certificate of occupancy on the piece or parcel of land together with the developments therein

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covered by Deed of conveyance registered as 18/18/49 and dated at the Land Registry in the office at Ibadan.
B. Declaration that the Deed of Conveyance dated 5th September 1966 and registered as No.21 at page 21 in volume 941 of the Lands Registry in the office at Ibadan is null and void because it is a forged document.
C. An order against the plaintiff, his agents and privies from further trespass on the land and premises the subject of these proceedings. (See Pages 39-47 of the Record of Appeal).
The Respondent filed a reply and defence to the Appellants Statement of Defence and Counter-claim. The Respondent pleaded that after the death of his father, on account of tender ages of the children, the property was left in the state Respondent’s father left it when he died. The Appellant allegedly broke and entered the property and justified the breaking/trespass by instituting suit No. 1/369/76 which was not pursued to its logical end. The respondent also pleaded that Appellant’s illegal occupation of the land “had always been challenged by the plaintiff through several letters”. See Paragraph 15 of Respondent’s Reply to

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Statement of Defence and Defence to Counter-Claim (Page 25 of the Record of Appeal).
During trial, the Respondent testified in support of his claim. He also called two other witnesses. The Appellant also called two witnesses. At the close of trial, Learned trial judge entered judgment in favour of the Claimant/Respondent. Judgment was entered in the Respondent’s favour as against the Appellant. Appellant’s Counter-Claim was also dismissed while the case as against the Defendant was struck out on the ground of not being a juristic entity. Judgment of the Court below is at pages 157- 184 of the Records of Appeal.
Dissatisfied with the said judgment, the Appellant appealed to this Honourable Court on the grounds set out in the Notice of Appeal dated 23rd October, 2012 (pages 185 -189 of the record) and with the leave of this Honourable Court, which was granted on 29th April, 2014, the Appellant filed an amended Notice of Appeal dated 6th May 2014. In the interim, the original Appellant, Chief Adedokun Adeyemi died. On the strength of an application, he was substituted his daughter Ms. Funke Adeyemi. The Appellant’s Brief of Argument has

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been further amended with the leave of this Honourable Court. This Amended Brief of argument is in support of the Further Amended Notice of Appeal. No cross appeal or a Respondent’s Notice has been filed by the Respondent. In all, there are 12 grounds of appeal in the said Amended Notice of Appeal.

Consideration of Issues by Trial Court
In considering issues raised by the appellant, the trial judge considered appellants issue 1 on statute of limitation and held thus:
From the entire evidence before me, it is my view that the claimant’s families have never abandoned the actual and legal possession of the land in dispute and the structures thereon. From the claim for account, it is my view that it can be safely concluded that the date of the defendant’s first entry on the land in dispute through the tenant he put thereon is 1992.
It is the consensus of both parties that the defendant has put tenant in the property and has been collecting rents. It is my view that each year the defendant collects rent from the tenant he has put in property the defendant committed a fresh act of trespass for which the claimant is entitled to

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sue, see Oyebamiji vs. Lawanson (2008) 15 NWLR (Pt. 1109) page 122 at 138 where the Supreme Court held as follows:
“The suit of the respondents was in trespass. For everyday the appellant remained on the land in dispute which as the evidence revealed, belonged to the respondents, they committed a fresh act of trespass which was actionable it could therefore not avail them to contend as they did that the cause of action arose on a particular date since they remained on the said land even at the time the suit was being heard.”
Based on the above authority and the peculiar facts of this case, it is my view that the defendant cannot take advantage of the provisions of Section 3 of the Limitation Law of Oyo State. Accordingly the third issue is answered in the negative that is to say that the claimant’s claim is not statute barred.

This was therefore a case of continuing trespass renewed each time a tenant is let in Majekodunmi v. Abina (2002) 3 NWLR (pt.755)755 720 at 744. Following this the trial Court held that action was not statute barred.

On issue 2, the evidence of DW2 was fully considered and found worthless in view of the

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evidence and the deed of indenture which is a document Forty Six years old and carried all the presumptions of Law which the appellant could not displace.

On the alleged forgery of the deed of indenture, there was evidence that the deed was duly executed and registered in the Deeds registry and enjoys all the presumption of due execution under Section 155 and 156 of the Evidence Act. The appellant could not rebut the Presumption.

On all the points and issues raised the appellant could not fault the decision of the trial judge on all issues.
Accordingly, the appeal lacks merit and is dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I agree.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the lead judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the Appellant has not been able to fault the decision of the trial Court.

​In the instant appeal, the Respondent as Claimant at the lower Court sought amongst others a declaration that he is the person entitled to the Statutory Right of Occupancy on the disputed land together with

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developments thereon. The Appellant counter-claimed and also sought the same declarative relief. The Respondent relied on the sale to his deceased father by the Appellant’s late father in proof of his case. In support of his claim, he further relied on a Deed of Conveyance dated 5th September, 1966 registered as No. 21 at page 21 in volume 941 of the Lands Registry in the office at Ibadan which was admitted in evidence as Exhibit A.

It is trite that by virtue of Sections 155 and 156 of the Evidence Act, 2011, where a document which purports to or is proved to be twenty (20) years old or more is produced from proper custody, the Court may presume it was executed and attested by the person by whom it purports to be executed and attested. See NSIEGBE VS MGBEMENA (2007) 10 NWLR (PT. 1042) 364; OBAWOLE vs. WILLIAMS (1996) 10 NWLR (PT. 477) 146; THOMPSON VS AROWOLO (2003) 7 NWLR (PT. 818) 328. In AYANWALE VS ODUSAMI (2011) 18 NWLR (PT. 1278) 328, the Supreme Court, per Rhodes-Vivour, JSC held thus:
“Section 123 of the Evidence Act states that:
“Where any document, purporting or proved to be twenty years old, is produced from any custody which

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the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.”

The Appellant contended and sought a declaration that the Deed relied upon by the

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Respondent is forged. The lower Court rejected the expert evidence adduced on behalf of the Appellant, and held amongst others that the Appellant was unable to rebut the presumption of genuiness which enured in favour of Exhibit A. The law is settled that an appellate Court will only interfere with the finding made by a lower Court when it is found to be perverse or where the findings are not supported by credible evidence on record. See SALEH VS BANK OF THE NORTH LTD (2006) 6 NWLR (PT. 976) 316; UNION BANK OF NIGERIA PLC VS AJABULE (2011) 18 NWLR (PT. 1278) 152; SARAKI VS KOTOYE (1990) 4 NWLR (PT. 144) 281. The Appellant has not been able to show that the decision of the lower Court is perverse.

​It is for the foregoing reasons and the reasons contained in the lead judgment that I too dismiss this appeal.

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Appearances:

Oluwatosin Adisa Esq. For Appellant(s)

Dayo Akinlaja (SAN), with him, Segun Akeredolu and Abisola Edungbola For Respondent(s)