GLADYS THOMAS DAVIES v. NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR OF CO-OPERATIVE & COMMERCE BANK NIGERIA PLC) & ORS (2014)

GLADYS THOMAS DAVIES v. NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR OF CO-OPERATIVE & COMMERCE BANK NIGERIA PLC) & ORS

(2014)LCN/7737(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of July, 2014

CA/PH/111/2009

RATIO

EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROOF WHERE ALLEGATION OF FORGERY FORMS THE BASIS OR FOUNDATION OF A CASE AGAINST THE DEFENDANTS AND THE ALLEGATIONS ARE DENIED

The Law is settled that where the commission of a crime and as in this case allegation of forgery forms the basis or foundation of a case against Defendants and the allegations are denied, the Plaintiff must prove the allegation beyond reasonable doubt. See Section 138(1) of the Evidence Act Cap E14 LFN 2004 which provides:-
“138(1) if the commission of a crime by a party to any proceeding is directly in issue any in any proceeding civil or criminal, it must be proved beyond reasonable doubt”
See ,CHIEF IFEANYICHUKWU NWOBODO v. CHIEF C. C. ONOH & ORS. (1984) NSCC 1 at 16 per BELLO, JSC (later CJN) of Blessed Memory. See also AIYEDUN T. JULES v. RAMI AJANI (1980) 5-7 SC 64 at 74 where NNAMANI, JSC of blessed memory had this to say:
“Learned Counsel for the appellant had in his argument before us asserted that the issue of forgery did not arise in this suit. I think it did and the Federal Court of Appeal was right in so finding. The appellant clearly raised the issue of forgery in paragraph 3 (a) and (b) of his pleadings as set out above. The learned trial Judge did not advert his mind fully to the implications of that pleading hence he sought to explain it as laying emphasis on Akinwale Ajao’s denial of execution of Exhibit “A”. The point is that the appellant having raised the issue of Exhibit “A” being a forgery the burden was on him to prove that assertion. The standard of proof is proof beyond reasonable doubt. Section 137(1) and (2) of the Evidence Act. Cap G2, provides as follows:-
“137(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt,
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
See Godwin Nwankwere v. Joseph Adewunmi (1967) NMLR 45 at 48; Benson Ikoku v. Enoch Oli (1962) 1 All NLR Volume I (Pt. 1) 194. The defendant/appellant did not discharge this burden on him. The Federal Court of Appeal commenting on this in their judgment observed:
“In the instant case the allegations were directly against the conveyance Exhibit A, on which the Plaintiff relies to succeed. The defendant called only one witness, Akinwale Ajao. This witness as documentary evidence Exhibits “A, B, C, D and E prima facie show, was an illiterate. Akinwale Ajao merely asked whether he executed a deed in favour of Miss. Obong and he answered No. The Learned Justices also stated” nor was any evidence given as to what Lajumoke did with respect to Exhibit “A” that constituted that document a ‘forgery.” per. PETER OLABISI IGE, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT DISTURB THE FINDINGS MADE BY A TRIAL COURT IF SUCH FINDINGS ARE SUPPORTED BY CREDIBLE EVIDENCE ON RECORD AND THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE

The Law is trite that an Appellate Court will not disturb the findings of facts made by a trial court if such findings are supported by credible evidence on record. See MICHAEL ACHILIHU & ORS v. EZEKIEL ANYAZONWU (2013) 1 S.C.M. 1 at 18 per AKAAHS, JSC who said:-
“It is settled Law that an Appellate Court should not ordinarily disturb or tamper with the findings of facts made by the trial court, particularly if such findings on conclusions reached are supported by credible evidence. The principle is premised on the fact that the duty of appraisal of evidence given at a trial is pre-eminently that of the trial court that saw and heard witnesses.”

However where the bone of contention as to evaluation of evidence has to do with evaluation of documentary evidence, this court is in as a vantage position as the trial court to examine and evaluate the documentary evidence.
See (1) C.P.C. & ANOR v. HON. EMMANUEL D. OMBUGADU & ANOR (2013) 7 S.C. 217 at 214 to 215 A – D per NGWUTA, JSC who said:-
“Exhibit CA1 which could not have been evaluated by the trial court and which was evaluated by the lower court supports the conclusion that the 1st Respondent was nominated and there was an attempt to force a withdrawal of his candidature. The trial court could have come to the conclusion even without Exhibit CA1, if it had properly evaluated the documentary evidence and ascribed probative value thereto.
In my humble view, the lower Court was justified in its re-evaluation of the documentary evidence before the trial court and evaluation of the Exhibit CA1 which it admitted as fresh evidence on appeal. The trial Court did not evaluate or properly evaluate the evidence before it which was merely documentary. An appellate Court enjoys the same position as the trial Court in evaluation of documentary evidence as in this case where the controversy is limited to the interpretation of the documents. Where the finding of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity. See Iwuoha v. NIPOST (2003) 5 SCM, 104; 4 SC (Pt. 11) p. 37; Egba v. Ogodo (1984) 1 SCNLR 372; Whyte v. Jack (1991) 2 NWLR (Pt. 431) 407; Audu v. Okeke (1998) 3 NWLR (Pt. 542) 373.
And it follows that on the facts of this case, the interference by the lower Court with the finding of fact of the trial Court and the substitution of its view of the trial Court are the necessary and logical consequence of the re-evaluation of the documentary evidence before the trial Court and the evaluation of the fresh evidence on appeal, Exhibit CA1.”

MR. ADEMOLA A. ODUTOLA & ORS. v. PROF. AKIN MABOGUNJE & ORS (2013) 3 SCM 115 at 129 F – H to 130 A – D per RHODES – VIVOUR who held:-
“It is long settled that it is the duty of the trial Court to receive all relevant and admissible evidence. That is perception. The next duty is to weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence. That is evaluation. A finding of fact involves both perception and evaluation. It is not the duty of the appeal court to evaluate evidence. This is the primary responsibility of the trial court. But where the trial court fails to evaluate evidence properly the appeal court is duty bound to re-evaluate evidence and make correct findings of its own. Where evaluation of evidence entails issues of credibility of witnesses the appeal court should be reluctant to differ from a trial Judges findings of fact based on credibility of witnesses. This is so because the trial judge had the opportunity which an appeal court never had of hearing and watching the demeanour of witnesses as they testify. The trial court is obviously best suited to assess a witness credibility. But where the findings are based on drawing inferences and making findings from admitted and established facts and documentary evidence, an appeal court is in as good a position to evaluate the evidence as the trial court. See Eva & Ors. v. Olapade & Anor. 2011 5 S.C. (Pt. 11) p.37; (2011) 6 SCM, 13; CPC v. INEC Ors. 2011 2 S.C. p. 80; Eyo v. Onuoha 2011 2-5 S.C. Pt. 1 p. 220; Ayuya & 4 Ors. v. Yonrin & Ors. 2011 4 SC (Pt. 11) p. 1 (2011) 5 SCM 16. per. PETER OLABISI IGE, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

GLADYS THOMAS DAVIES
(For and on behalf of MRS. HANNAH THOMAS PETER DAVIES) Appellant(s)

AND

1. NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR OF CO-OPERATIVE & COMMERCE BANK NIGERIA PLC)
2. JAMES OBIAKOR
3. CHRISTIAN CHUKWU IRUKWU
4. ABIA STATE PRINCIPAL REGISTRAR OF DEEDS UMUAHIA (RICH OBIA) Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of ABIA STATE HIGH COURT contained in the judgment of Honourable Justice A. U. Kalu delivered on 21st day December, 2007.

The appellant as Plaintiff had on 20-10-1999 approached the High Court of Abia State, Umuahia Judicial Division for the issuance of writ of summons against the Defendants now Respondents and same was issued on 20th day of October, 1999. Pleadings were duly exchanged but the Appellant amended the particulars of her claim as well as her statement of claims. By paragraph 38 of the amended Statement of claim the Appellant claimed against the Respondents as follows:-
“(i) A declaration of the Honourable court that the Plaintiff is the person entitled to the grant of a certificate of statutory right of occupancy over the property known as plot 10 in block 9 of former Umuahia Ibeku otherwise called No.3 Abiriba Street, Umuahia by virtue of a DEED OF assignment dated 14th December, 1964 and registered as No. 15 at page 15 in volume 406 of the lands registry in the office at Enugu later Owerri and now Umuahia.
(ii) A declaration of the Honourable Court that the plaintiff did not at any time sell or an alienate or mortgage her said property to the 1st defendant or any of the defendants.
(iii) A declaration of the Honourable Court that the 1st defendant’s use of the title document of the property entrusted to the care and safe custody only of his late wife Mrs. Grace Irobgalachi Nnah (Nee Thomas Peter Davies) by the plaintiff and her mother as a mortgage to obtain a loan from the New Nigerian Bank Plc in 1974 through account No. 00211-04353 is unlawful and therefore null and void and cannot legally ground any dealings on the property now called No. 3 Abiriba Street, Umuahia by way of ……. or otherwise.
(iv) A declaration of the Honourable Court that the Power of attorney dated 24th August, 1981 registered as No. 69 at page 69 in volume 233 of the land registry in the office at Owerri and now Umuahia is a forgery by the 1st defendant and therefore void and of no effect whatsoever.
(v) A declaration of the Honourable Court that the use by the 1st defendant of the said forged Power of Attorney dated 24/8/81 and registered as No. 69 at page 69 in volume 233 concerning No.3 Abiriba Street, Umuahia and a false affidavit of loss of the document he had already unlawfully used to obtain a loan from the New Nigerian Bank Limited (now Plc) TO secure another loan with the Co-operative and Commerce Bank Ltd (and therefore the 2nd defendant) is unlawful, void and/or voidable.
(vi) A declaration of the HONOURABLE COURT that the 2ND AND 3RD defendants cannot in law sell the plaintiff’s said property in recovery of any debt incurred through loan the plaintiff did not obtain.
(vii) An order of Court setting aside the unlawful mortgage of the plaintiff’s property aforesaid at No.3 Abiriba street, Umuahia to the 2nd defendant by the 1st Defendant and also setting aside all registered encumbrances on the plaintiff’s deed of assignment date 14/12/64 and registered as No. 15 at page 15 in volume 406 of the lands registry at Enugu later Owerri and now Umuahia on the ground that they were obtained by forgery and fraud.
(viii) An order of Court setting aside any purported sale of the plaintiff’s property at No. 3 Abiriba Street, Umuahia aforesaid by the 2nd and/or 3rd defendants to the 4th defendant.
(ix) An order of Court on the 5th defendant to cancel and remove registrations in the lands registry at Umuahia made as encumbrances on the plaintiff’s said title.
(x) An order of injunction restraining the defendants from interfering with the said property in any manner whatsoever inconsistent with the right of the Plaintiff.”
See pages 152 – 160 of the record. The 4th defendant filed 4th Defendant’s Amended Statement of Defence/Counter Claim. The said 4th Defendant is now the 3rd RESPONDENT (CHRISIAN CHUKWU IRUKWU). In the said counter-claim paragraph 21 THEREOF THE 4TH DEFENDANT CLAIMED AGAINST THE Appellant thus:-
“The 4th defendant hereby repeats the averments in paragraphs 5, 7, 8, 9, 10, 11, 12, 13 and 14 of his statement of defence hereto.
WHEREFORE the 4th defendant counter-claims from the plaintiff as follows-
“(a) A declaration that the 4th defendant is the owner and assignee of the property situate at No.3 Abiriba street, Umuahia, by virtue of deed of assignment dated 11th day of November, 1992 and registered as No.4 at page 4 in volume 48 of the Lands Registry in the Office at Umuahia. The said assignment was issued to the 4th defendant by the then Mortgagees the Co-operative and Commerce Bank of Eastern Nigeria.
(b) That Plaintiff render an account of the sum of money received from the tenants from the said property since 1992 when 4th defendant acquired the property.
(c) Perpetual injunction restraining the plaintiff, her mother, sisters servants agents and privies from interfering with the 4th defendant’s ownership and enjoyment of No.3 Abiriba street, Umuahia.”

The matter proceeded to hearing. At the end of trial the learned trial Judge in a considered judgment which he delivered on 21st day of December 2007 as aforesaid held as follows:-
“Let me start by making it clear that I have not seen anything nearing the level of proof required in an allegation of crime on the part of the plaintiff to prove this allegation, I come to this conclusion because the plaintiff claims that Exhibit ‘L’ was forged and when the matter came to her knowledge, she, lodged a complaint of this to the police against the 1st defendant. There is nothing to prove that such an allegation was brought to the attention of the police and its outcome.”
In fact when the plaintiff said she knew of the matter of the existence of the loan relationship between 1st defendant and the defunct Co-operative and Commerce Bank Plc was when the 3rd Defendant (the auctioneer) came to the property to place a notice of the intention of the bank to auction the property. What was the reaction of the plaintiff and her family members to this “invasion”? Plaintiff and her family members did nothing. They did not challenge the Co-operative and Commerce Bank Plc. They did not investigate the matter. The plaintiff and her family rather quietly agreed to participate in the auction and in fact the plaintiff came out the highest bidder. The conduct of the Plaintiff and her family in the whole transaction gives the impression that it was surely the plaintiff that donated Exhibit ‘L’ to the 1st defendant and the plaintiff and her family knew that the 1st defendant used Exhibit ‘L’ as security to obtain a loan from the defunct Co-operative and Commerce Bank Plc. I find it strange and incredible that the plaintiff who felt that the basis of the auction was, according to her non-existent as, according to her, exhibit ‘L’ was forged, gleefully participated in the auction plaintiff considered illegitimate since Exhibit ‘L’ was forged. Plaintiff came out the highest bidder, failed to pay the bidded amount or was prevented from paying the bidded amount and now turn around to question the legitimacy of the same exercise of auction she happily participated in. To permit her to do so will amount to permitting the plaintiff to aprobate and reprobate at the same time.
I therefore, come to the following conclusion based on the evidence
(a) That the plaintiff freely donated Exhibit ‘L’ that is to say, the power of Attorney registered as No. 69 page 69 volume 233 at the Land Registry, to the 1st defendant, her in-law.
(b) That the 1st defendant used the Exhibit ‘L’ as security to obtain a loan from the defunct Co-operative and Commerce Bank Plc.
(c) That this relationship between the defunct Co-operative and Commerce Bank Plc and the 1st defendant wherein the 1st defendant used No.3 Abiriba street, Umuahia as security for the loan he took from the defunct Co-operative and Commerce Bank Plc was clearly to the knowledge and approval of the Plaintiff and her family.
(d) That when the defunct Co-operative and commerce Bank Plc called in the facility and the 1st defendant failed to pay back the loan, the defunct Co-operative and Commerce Bank Plc put up the property in dispute for sale.
(e) That the plaintiff fully participated in the auction and came out the highest bidder but only failed to pay the amount bidded because according to the plaintiff, she only participated to frustrate the sale.
(f) That the sale of No.3 Abiriba Street, Umuahia by the defunct co-operative and Commerce Bank Plc to the 4th defendant was lawful and property duly passed to the 4th defendant.

In the final analysis I find no merit in the case of the plaintiff. The case is dismissed in its entirety. On the counter claim, I am satisfied by the evidence preferred in favour of the 2nd – 4th defendants. I find the evidence for the 2nd-4th defendants true and consistent, I find as a fact that the defunct Co-operative and commerce Bank Plc acted firmly and lawful in its dealings with the 1st defendant and the plaintiff with regard to the property in dispute. I find it as a fact based on evidence that the Co-operative and commerce bank plc lawfully passed title over the property in dispute to the 4th defendant. Accordingly I grant the relief as prayed by the 4th defendant to the following terms:-
(a) I declare that the 4th defendant is the owner and assignee of the property situate at No.3 Abiriba street, Umuahia by virtue of the deed of Assignment dated 1/11/92, and registered as No. 4 page 4 in volume 48 of the Lands Registry, Umuahia, the said property having being lawfully assigned to the 4th defendant by the then mortgagees of the property the Co-operative and Commerce Bank Plc.
(b) The Court also orders the plaintiff to render an account of the sums of money she received from the tenants occupying the said property since November, 1992 till the date effect is given to this judgment;
(c) I place an order of perpetual injunction restraining the plaintiff, her mother, sisters, agents and privies from interfering with the 4th defendant’s ownership and enjoyment of No.3 Abiriba Street, Umuahia.
Cost of the suit assessed and fixed at N20,000.00 payable by the plaintiff to the 2nd-4th defendants who put up appearance in the matter.”

Aggrieved by the decision of the lower court the appellant filed Notice and grounds of Appeal dated 24th day of December, 2007 on the same date, containing three grounds of appeal. The said grounds of appeal with their particulars are as follow:-
“GROUNDS OF APPEAL
(a) GROUND ONE: ERROR IN LAW: The Honourable court erred in law and caused miscarriage of justice against the plaintiff in its conclusion that the property (known as and called No. 3 ABIRIBA STREET UMUAHIA) the subject matter of the suit, was/is the property of and therefore properly vests in the 4th defendant/Respondent, when the issue of forgery of EXHIBIT “j” was not resolved by the Honourable Court according to law.

PARTICULARS OF ERROR
(i) The presiding Judge, Honourable Justice A. U. KALU, shut his eyes to the obvious when he ignored the effect of EXHIBIT “J” on all other instruments or deeds, especially exhibit “O” which formed the basis of the judgment of the Honourable Court in favour of the 4th defendant/Respondent.
(ii) THE PLAINTIFF (PW2) HAVING DENIED HER SIGNATURE ON exhibit “J” (POWER OF ATTORNEY said to have been executed by her in favour of the 1st defendant/Respondent) and having signed her signature on EXHIBIT “M” the Honourable court/Judge ought to have compared the signature admitted to be that of the pw2 (vide exhibit “M”) and that CONTAINED IN exhibit “J” which duty the Honourable court did not carry out; ADENLE v. OLUDE (2003) 5 FWLR (Pt. 157) 1074; 18 NWLR (Pt. 799) 413.
(iii) In view of the contention by the plaintiff that the signature on EXHIBIT “J” was forged-not having been written or signed or executed by her (pw2) – the honourable court caused grave miscarriage of justice when it failed to compare the signature or names of the plaintiffs on EXHIBIT “J” and that on EXHIBIT “M” wherein she wrote or signed her signature to determine whether the plaintiff was the maker of EXHIBIT “J” upon which the 4th defendant’s title was predicated (EXHIBIT “O”): NDOMA-EGBA v. A.C.B. PLC (2005) ALL FWLR (Pt. 283) 152 at 155; AMDI v. ORLISAKWE (2005) ALL FWLR (Pt. 247) 1529 at 1533.

(b) GROUND TWO: ERROR IN LAW: The decision of Honourable Court was perverse in that:
(i) It failed to give or give proper interpretation of the genuineness or otherwise of EXHIBIT “J” against which no witness signed or witnessed as purported.
(ii) It made an order for the plaintiff to render an account of the sums of money she received from the tenants occupying the said property, (subject matter of action) from November, 1992 till the date effect is given to the judgment when no particulars of account were furnished to warrant the order.
(iii) It took cognizance of the irrelevant fact that the plaintiff and her family, specifically, the PW3 (the mother) took part or participated in the auction sale of the property, the subject matter of this suit, in 1990 by the 2nd and 3rd defendants which the 4th defendant eventually “brought” IN drawing the (wrong)s INFERENCE THAT exhibit “J” was genuine and with which 1st defendant mortgaged No. 3 ABIRIBA STREET UMUAHIA (SUBJECT MATTER OF DISPUTE) to the CO-OPERATIVE AND COMMERCE BANK LTD (in liquidation by the 2nd defendant).
The ORDER MADE BY THE Honourable court perpetually restraining the plaintiff, her mother, sisters, agents and privies from interfering with the 4th defendant’s ownership and enjoyment of No. 3 ABIRIBA STREET, UMULAHIA in difference to the subsisting right of the plaintiff in the said property as contained in EXHIBIT “A”.

PARTICULARS OF ERROR
(i) The Honourable court did not evaluate EXHIBIT “J” because the PW1 (ELFRAEDA AHURUCHI DAVIES) did not sign as a witness, EXHIBIT “J”. She denied ever witnessing the execution of same by the PW2 (the purported donor of the property in EXHIBIT “J” albeit her names were therein stated as such).
The other purported witness, one MR. C. O. LEMEH did not sign his signature on EXHIBIT “J” albeit his name was stated as such thereon he was not called as a witness either by any of the defendants. In view of the case of OMEGA BANK NIGERIA PLC v. O.B.C LTD (2005) ALL FWLR 1964 at 1969 S.C., the document, EXHIBIT “J” became suspect, against which no finding was made by the Honourable Court.
If the Honourable court had adverted its mind to the authority of AMADI v. ORISAKWE supra, NDOMA-EGBA v. A.C.B. PLC supra, and Section 108 (1) (2) (3) OF THE Evidence Act 1990, it would have come to a different conclusion as contained in its judgment; he did not make any finding on EXHIBIT “M” as opposed to EXHIBIT “J”.
(ii) The 4th defendant in his counter-claim did not give particulars of account of the rents the, “tenants” in the said property pay or paid; he did not state the names of any tenant or tenants at the said property; did not join issues with the plaintiff on the rent paid or payable by any tenant and whether tenants are thereat, yet the honourable court made an order for the rendering of account by the Plaintiff (pw2) to the 4th defendant.
(iii) It is in evidence that the plaintiff and her family discovered that the 1st defendant “forged” the document, EXHIBIT “J” in 1981 only in 1999, that is to say, 9 years after the auction sale in 1990. Therefore the fact that the plaintiff’s mother (PW3) participated in the auction sale in 1990 does not warrant the inference that the 1st defendant did not forge (EXHIBIT “J” and that the plaintiff and her family knew of the transaction between the 1st defendant and C.C.B. LTD (in liquidation by 2nd defendant) leading to the overdraft facility with EXHIBIT “J” as security for the repayment of the loan.
(iv) The Honourable court failed to arrive at the decision that plaintiff’s right in the said property subsists vide EXHIBIT “A” in that it failed to make the proper finding of forgery of EXHIBIT “J” thereby rendering it inauthentic, null and void and of no effect whatsoever.

(b) GROUND THREE: ERROR IN LAW:
That the judgment of the Honourable court is against the weight of the evidence led in the proceedings.

PARTICULARS OF ERROR
(1) The Honourable court did not evaluate or properly evaluate the evidence of the plaintiff and her witnesses which would have on an imaginary scale of justice tilted in favour of the plaintiff.”

The Appellant filed her Brief of argument dated 4th day of July, 2013 on the same date while the 1st – 3rd respondents filed their 1st – 3rd Respondents’ Brief of Argument dated 16th day of August, 2013 an 22nd day of August 2013.
The 4th Respondent did not file any Brief of Argument.
The appeal was heard on the 9th day of June, 2014, when the learned Counsel to the appellant P. C. ADIGHIJE Esq. and Learned Counsel to the 1st – 3rd Respondents L. C. NWUZOR Esq. adopted and relied on their respective Brief of Argument.

The Appellant’s Learned Counsel formulated three issues for determination which issues are as follows:-
“(i) WHETHER THE FAILURE BY THE LOWER COURT (CORAM A. U. KALU J) to DETERMINE WHETHER OR NOT EXHIBIT “J” WAS FORGED, THE PLAINTIFF/APPELLANT HAVING DENIED THE SIGNATURE THEREON AND HAVING WRITTEN HER ACTUAL SIGNATURE ON EXHIBIT “M” AND THE HONOURABLE JUDGE NOT COMPARING THE RESPECTIVE SIGNATURES ON EXHIBITS “J” AND “M” DID NOT OCCASION A MISCARRIAGE OF JUSTICE, ESPECIALLY SO WHEN THE HONOURABLE JUDGE PREDICATED THE TITLE OF THE 4TH DEFENDANT/RESPONDENT ON EXHIBIT “J” (THE CONTENTIOUS DOCUMENT OF TITLE).
(ii) WHETHER THE DECISION OF THE LOWER COURT WAS NOT PERVERSE IN VIEW OF THE FACT THAT THE PRESIDING HONOURABLE JUDGE DID NOT EVALUATE OR PROPERLY EVALUATE THE EVIDENCE OF THE WITNESSES IN THE SUIT BEFORE ARRIVING AT THE CONCLUSION THAT THE 4TH DEFENDANT/RESPONDENT WAS ENTITLED TO THE RELIEF IN HIS
COUNTER-CLAIM.
(iii) WHETHER THE PLAINTIFF/APPELLANT DID NOT PROVE THAT THE SUBJECT MATTER OF DISPUTE VESTED (AND STILL VESTS) IN HER NOT WITHSTANDING THE PURPORTED TITLE PREDICATED ON EXHIBIT “O” OR PUT DIFFERENTLY: WAS THE JUDGMENT NOT AGAINST THE WEIGHT OF EVIDENCE?”

The Respondent’s Learned Counsel distilled two issues for determination of this appeal as follows:-
“1. WHETHER THE LEARNED TRIAL JUDGE BY HIS DECISION DID NOT RESOLVE THE ISSUE OF FORGERY OF EXHIBIT “J” DISPOSING OFF ALL THE RELEVANT EXHIBITS RELATED THERETO/CONNECTED THEREWITH AND WHERE NOT CONSIDERED, WHETHER IT HAS OCCASIONED ANY MISCARRIAGE OF JUSTICE? (GROUND A OF THE APPEAL).
2. WHETHER THE LEARNED TRIAL JUDGE WHILE HANDING DOWN ITS JUDGMENT, WENT OUT OF CON AND FAILED TO CONSIDER THE TOTALITY OF EVIDENCE BEFORE IT, NOT ATTACHING TO THEM THEIR DUE WEIGHT IN ARRIVING AT ITS DECISION, DISMISSING THE APPELLANTS, CLAIM IN ITS ENTIRETY AND ALLOWING THE 3rd RESPONDENT COUNTER-CLAIM? (GROUNDS B & C)”
I am of the view that this appeal can be determined on the issues formulated by the Appellant for determination in this appeal. I will treat them seriatim.

ISSUE (I)
It is the argument of Learned Counsel to the Appellant that the failure of the presiding Honourable Judge to compare the signature purportedly signed by the Plaintiff/Appellant (PW2) in EXHIBIT “J” the signature of the same PW2 contained in EXHIBIT “M” to ascertain whether or not EXHIBIT “J” was forged and or contrived by the then 1st Defendant he reached a conclusion on the fact of whether or not Exhibit “O” properly ensures to 4th Defendant/Respondent (3rd Respondent) occasioned a miscarriage of Justice, substantial enough to set aside the Judgment. The following cases were relied upon viz:
1. ADENLE v. OLEDE (2003) FWLR (Pt. 157) 1074; 18 NWLR (Pt. 799) 413.
2. NDOMA EGBA v. A.C.B. (2005) ALL FWLR (Pt. 247) 1519.

The Learned Counsel submitted that the learned trial Judge failed to make proper findings as enunciated in the three cases cited. He urged this court to resolve issue (i) in favour of Appellant.

Responding to the arguments under issue (i) the Learned Counsel to the Respondent drew attention of this Court to facts pleaded by the Appellant in paragraphs 23 and 24 of this Amended Statement of Claim wherein allegations of criminal forgery were made and the facts that issues were joined on the said issue of forgery. That the 1st Respondent demanded for further and better particulars of the forgery but the Appellant did not oblige 1st Respondent. He also referred to the evidence called through PW1 – PW5 in efforts of Appellant to prove forgery of Exhibit “J” the Power of Attorney by which original 1st Defendant AMOS ANAH Mortgaged the property in dispute which was sold to 3rd Respondent by Co-operative and Commerce Bank Nig. PLC which later went into liquidation. The Nigerian Deposit Insurance Corp. later became its official Liquidator. That the appellant was under a duty to prove his allegation beyond reasonable doubt. The Learned Counsel to the Respondent relied on Section 138 of the Evidence Act 2004 and the cases of:
1. NWOBODO v. ONOH (1984) ISCI
2. MR. K. G. WALTER v. SKYL NIG. LTD. (2000) FWLR 2244 at 2269 A – F.
3. OMODELE ASHABIEYA & ORS v. ALHAJI BELLO QUDUS & ANOR (2002) F.W.L.R. (Pt. 106) 1089 at 1121 – H22.

That the Learned trial Judge has found that the allegation of the Appellant that Exhibit “J” was forged was not proved as the evidence led by Appellant fell short of the standard of proof required to establish criminal allegation. That the Appellant must first prove that Exhibit “J” was forged before complaining that the trial Judge did not make use of Exhibit “M” in accordance with Section 138(1) of the aforesaid Evidence Act. He relied on the cases of K. KOIKI v. B. MAGNUSSON (1999) 5 SCNJ 296 at 316 and ALHAJI SAIMI O. ADEROUNMU & ANOR v. EMMANUEL OLAJIDE OLOWU (2000) 2 SCNJ 180 at 189.

That assuming without conceding that the trial court failed to make use of Exhibit “M” dealing with the issue of forgery of Exhibit “J” as alleged by the Appellant the Learned Counsel to the 1st – 3rd Respondents stated that it is not every mistake or error that will lead to reversal of a judgment of lower court. He relied on the case of DIAMOND BANK LTD. v. PARTNERSHIP INVESTMENT CO. LTD (2010) ALL FWLR (Pt. 512) 1098 at 1123 B. C., to contend that since the trial court conclusively dealt with the matter there was no need to consider and or make use of Exhibit “M”. That the failure did not occasion miscarriage of Justice. He relied on the following cases viz:-
1. JIMOH KUTI & ORS v. ADEBAYO BAKARE ALASHE & ORS (2005) ALL FWLR (Pt. 284) 372 at 390 A – C and
2. TRADE BANK PLC v. KHALED BARAKAT GHAMI (2004) ALL FWLR (Pt. 235) 118 at 149 F – H.

That since the trial court has considered the live issue in the matter failure in comparing Exhibit “J” and “M” as alleged by Appellant is of no moment. He relied on the cases of:
1. 7UP BOTTLING CO. LTD v. ABIOLA & SONS HOLDING LTD. (2001) FWLR (Pt. 70) 16, 11 at 1632 and (2) JOSHUA v. STATE (2009) ALL F.W.L.R. (Pt. 475) 1626 at 1661 C-E.

Now what runs through the entire gamut of the Appellant’s Particulars of Claim and the Amended Statement of Claim particularly paragraphs 22 – 28 thereof is allegation of forgery of the Power of Attorney Exhibit “J” used by the original 1st Defendant to this suit to obtain loan from CO-OPERATIVE AND COMMERCE BANK LIMITED which loan upon default in repayment by original 1st Defendant Amos NNAH, led the said Bank to sell by Public Auction the property in dispute situate at No. 3 Abiriba street, Umuahia. The bank sold the property to 3rd Respondent vide Exhibit “O” a Deed of Assignment. The Appellant’s position is that the validity of Exhibit “O’ is inextricably tied to Exhibit “J” which she claimed was forged by original 1st Defendant to sell her property to the 3rd Defendant now 3rd Respondent.

The Appellants called five witnesses including Appellant herself in an effort to sustain a case of forgery against the Respondents (all and singular) but her evidence and the pieces of evidence led by her witnesses were rejected by the Learned trial Judge. I have earlier on in this Judgment quoted extensively the findings of the learned trial Judge on the allegation of forgery which findings the Appellant believes are perverse. The heart of the attack is that if the Learned trial Judge had taken his time to compare the signature on Exhibit “J” the Power of Attorney which the original Defendant used to obtain loan with Exhibit “M” signed in court by PW2, by Appellant herein, it would have been obvious to the lower court that Appellant was not and is not the Maker of Exhibit “J” the Power of Attorney which vested the property in the original first Defendant. That the signature purported to be that of Appellant on Exhibit “J” was in fact forged by AMOS NNAH. That Exhibit “M” is the true and correct signature of Appellant. In essence Appellant contended that Exhibit “O” which vested the auctioned property in the 3rd Respondent is void having been based on Exhibit “J” which appellant alleged was forged.

Section 108(1) of the Evidence Act 2004 no doubt enabled a trial court to compare signatures. The said section provides:
“108(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”

There is no doubt that the Learned trial Judge abundantly evaluated the pieces of evidence given by the witnesses for the Appellants and the Respondents before coming to the conclusion reached by him. He also evaluated the documentary evidence before him. What he did not do was to say that he compared the signature on Exhibit “J” with EXHIBIT “M”, the signature thereon.

Where the finding of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity. See Iwuoha v. NIPOST (2003) 5 SCM, 104; 4 SC (Pt. 11) p. 37; Egba v. Ogodo (1984) 1 SCNLR 372; Whyte v. Jack (1991) 2 NWLR (Pt. 431) 407; Audu v. Okeke (1998) 3 NWLR (Pt. 542) 373.
And it follows that on the facts of this case, the interference by the lower Court with the finding of fact of the trial Court and the substitution of its view of the trial Court are the necessary and logical consequence of the re-evaluation of the documentary evidence before the trial Court and the evaluation of the fresh evidence on appeal, Exhibit CA1.”

2. MR. ADEMOLA A. ODUTOLA & ORS. v. PROF. AKIN MABOGUNJE & ORS (2013) 3 SCM 115 at 129 F – H to 130 A – D per RHODES – VIVOUR who held:-
“It is long settled that it is the duty of the trial Court to receive all relevant and admissible evidence. That is perception. The next duty is to weigh the evidence received from both sides and decide where the scale tilts on qualitative and compelling evidence. That is evaluation. A finding of fact involves both perception and evaluation. It is not the duty of the appeal court to evaluate evidence. This is the primary responsibility of the trial court. But where the trial court fails to evaluate evidence properly the appeal court is duty bound to re-evaluate evidence and make correct findings of its own. Where evaluation of evidence entails issues of credibility of witnesses the appeal court should be reluctant to differ from a trial Judges findings of fact based on credibility of witnesses. This is so because the trial judge had the opportunity which an appeal court never had of hearing and watching the demeanour of witnesses as they testify. The trial court is obviously best suited to assess a witness credibility. But where the findings are based on drawing inferences and making findings from admitted and established facts and documentary evidence, an appeal court is in as good a position to evaluate the evidence as the trial court. See Eva & Ors. v. Olapade & Anor. 2011 5 S.C. (Pt. 11) p.37; (2011) 6 SCM, 13; CPC v. INEC Ors. 2011 2 S.C. p. 80; Eyo v. Onuoha 2011 2-5 S.C. Pt. 1 p. 220; Ayuya & 4 Ors. v. Yonrin & Ors. 2011 4 SC (Pt. 11) p. 1 (2011) 5 SCM 16.

On the signature of the testator on Exhibits A and A1 the Court of Appeal said:
I have therefore carefully carried out the necessary examination and comparison and I cannot fancy any distinguishing feature whatsoever in the undisputed signature of late Chief Timothy Adeola Odutola in Exhibits E, F-F3 and J-J3 and that in the disputed Exhibits A – A1, The only reasonable conclusion therefore is that the undisputed signature and the disputed one are by one and the same person, late Chief Timothy Adeola Odutola.
An expert on handwriting may give his opinion on a disputed signature or writing but the final decision on the issue is made by the Judge. In this case the Learned Justices of the Court of Appeal quite rightly in my view compared the signature of the testator on Exhibits A – A1 and found that the undisputed signature and the disputed one are by one and the same person, late Chief Timothy Adeola Odutola. After personally examining the documents, there is no doubt in my mind that the Court of Appeal is correct. Also the plaintiffs/appellants were unable with their sole witness to show findings to the contrary.”

I have calmly perused the signatures on Exhibits “J” and Exhibit “M” and I have no doubt in my mind that the signatures are similar in character and method. The signature on Exhibit “J” and the signature on Exhibit “M” belong to the Appellant. She signed them. A close examination of the first line and signature on Exhibit “M” makes it abundantly clear even though the Appellant was varying her modes of writing from lines two to five of the signatures, that she actually signed Exhibit “J”
See page 387 of the record.
There is nothing on the record to show that there was/is any miscarriage of Justice. The evidence on record show that failure of the learned trial Judge to make finding as to whether he compared Exhibit “J” with “M” with respect to signatures does no damage to the Appellant. The findings of the trial Judge on Exhibits “J” and “O” are in order and there is no reason to disturb the lower court’s findings on them. Issue (i) is resolved against the Appellant.

ISSUE 2
WHETHER THE DECISION OF THE LOWER COURT WAS NOT PERVERSE IN VIEW OF THE FACT THAT THE PRESIDING HONOURABLE JUDGE DID NO EVALUATE OR PROPERLY EVALUATE THE EVIDENCE OF THE WITNESSES IN THE SUIT BEFORE ARRIVING AT THE CONCLUSION THAT 4TH DEFENDANT/RESPONDENT WAS ENTITLED TO THE RELIEF IN HIS COUNTER-CLAIM.

The Appellant’s Learned Counsel submitted that the lower court did not give or give proper interpretation on the genuiness or otherwise of EXHIBIT “J” against which according to Appellant, no witness signed. That PW1 at page 225 of the record denied writing her name on Exhibit “J”. That this should have made the trial Judge to treat exhibit “J” as suspect. That failure of the witnesses to sign rendered Exhibit “J” an unsigned document that is worthless citing the case of OMEGA BANK NIGERIA PLC v. O.B.C. LTD (2005) ALL FWLR (Pt. 249) 1914 at 1972.
That the trial court took into account irrelevant fact that the PLAINTIFF/APPELLANT’S mother and her family took part in the action sale of the property in dispute in 1990 subsequent to which the then 4th Defendant now 3rd Respondent bought the subject matter from 1st Respondent (C.C.B. NIG. LTD) without regard for the necessity of resolving in the first instance whether EXHIBIT “J” was genuine. That once this court finds that Exhibit “J” was forged or falsified then all the documents of title based on it will crumble. He referred to such documents as Deed of Legal Mortgage between C.C.B. NIG. LTD and original first Defendant and Exhibit “O” Executed by C.C.B NIG. LTD in favour of 3rd Respondent. He relied on MACFOY v. U.A.C. LTD. (1962) A. C. 152; OKAFOR v. A.G. ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 659 and LEEDE PRESIDENTIAL HOTELS LTD. v. B.O.N. (1991) 10 NWLR (Pt. 570) 350.
That the lower court made a misconceived order directing Plaintiff/Appellant to render an account of the sums of money the Plaintiff (PW2) received from Tenants said to be occupying the said property without proper particulars of account to be rendered. That a court does not make order in vain. That the lower court was wrong in awarding the property to the 3rd Respondent.
Responding to the submissions under issue (ii) the Respondent justified the findings of the Learned trial Judge in granting the 3rd Respondent’s Counter-Claim by referring to various findings made by the trial court. That the Plaintiff fully participated in the auction sale. That the auction sale to 3rd Respondent was lawful that the findings of lower court were not perverse. He relied on SCC (NIG.) v. ELEMADU 2004 ALL FWLR (Pt. 230) 1168 at 1192.
Respondents urged this court to uphold the judgment of lower court. I am of the solemn view that the arguments of the Appellants cannot be sustained under issue (ii). The Learned trial Judge meticulously evaluated the evidence on record including the conduct and lackadaisical attitude of the Appellant and her witnesses in their purported efforts to retrieve the property in dispute. I fully endorse the findings of the trial court in awarding the reliefs claimed on the Counter-Claim to the 3rd Respondent. The documents relied upon by the Respondents are genuine documents. Exhibit “J” was duly signed by the Appellant contrary to the submission of Learned Counsel to her. The trial court did not believe the witnesses called by Appellant. The conclusion and reasoning of the trial Judge cannot be faulted. The submission of the Appellant also that there was no particulars of account to be rendered before the court is not correct. The Appellant was specifically asked to render account of the sums of money she received from the tenants occupying the property in dispute since November 1992 until the date judgment herein is complied with. There is nothing vague or ambiguous in the order of court.

This court will not interfere with the reliefs decreed in favour of the 3rd Respondent.
See: ALHAJI UMARU SANDA NDAYAKO & ORS v. ALHAJI HALIRU DANTORO & ORS. (2004) 13 NWLR (Pt. 1389) 187 at 220 where EDOZIE, JSC said.
“An Appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are where the Judgment of the court is right but reasons are wrong the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere. See ABAYE v. OFILI (1986) 1 NWLR (Pt. 15) 134 at 179: UHAJIANYA v. UCHENDU 19 WACA 46.”
(ii) Consequently issue (ii) is resolved against the Appellant.

ISSUE (III)
WHETHER THE PLAINTIFF/APPELLANT DID NOT PROVE THAT THE SUBJECT MATTER OF DISPUTE VESTED (AND STILL VESTS) IN HER NOTWITHSTANDING THE PURPORTED TITLE PREDICATED ON EXHIBIT “O” OR PUT DIFFERENTLY: WAS THE JUDGMENT NOT AGAINST THE WEIGHT OF EVIDENCE.

The Learned Counsel to the Appellant submitted that based on the evidence elicited from the Appellant (PW2) and her witnesses PW1, PW2, PW3, PW4 and PW5 which according to him outweighed what he described as discredited evidence of the Defendants’ witnesses (DW1 & DW2) the lower court ought to have decided in Appellant’s favour. He urged the court to invoke Section 16 of the Court of Appeal Act 2004 to hold that Exhibit A is still subsisting and that exhibit “J” was forged. That Exhibit “O” cannot confer title on 3rd Respondent.
The Respondents had argued the contrary under issue (ii).
I hold that having regard to my reasoning and conclusions under issues (i) and (ii) as formulated by Appellant all the argument under issue (iii) have no support in Law and they were not supported by the evidence on record.
The resultant effect is that this appeal is unmeritorious and it is hereby dismissed in toto. The judgment of the High Court of ABIA STATE contained in the judgment of Hon. JUSTICE A. U. KALU delivered on 21st day of December, 2007 is hereby affirmed.

The 1st – 3rd Respondents are entitled to costs. The Appellant shall pay costs at N30,000.00 (Thirty Thousand Naira) to the 1st – 3rd Respondents.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment of my learned brother P. O. Ige, J.C.A. and I agree with his reasoning and conclusion.

I too dismiss the appeal and abide by the consequential orders therein.

FREDERICK O. OHO, J.C.A.: I have had the advantage of reading in advance the judgment delivered by my learned Brother, P. O. Ige, JCA. I am in entire agreement with his reasons and conclusions and would respectively adopt same as mine.

Appearances

P. C. Adighije Esq. with C. N. OkerekeFor Appellant

AND

L. C. Nwuzo for the 1st – 3rd RespondentsFor Respondent