HENRY ATUCHUKWU v. GLORIA ADINDU
(2011)LCN/4490(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of April, 2011
CA/PH/441/07
RATIO
GROUNDS OF APPEAL: WHETHER WHERE THE APPELLANT ASCRIBES WRONG ISSUES TO HIS GROUNDS OF APPEAL, SUCH GROUNDS WILL REMAIN VALID AS LONG AS THE GROUNDS OF APPEALS CLEARLY SHOWS THE APPELLANT’S COMPLAINT AGAINST THE DECISION AND THE RESPONDENT IS NOT LEFT IN A STATE OF CONFUSION
The rules and case law is clear that so long as the grounds of appeal clearly show the Appellant’s complaint against the decision and the Respondent is not left in a state of confusion, then the grounds are valid grounds. Even if the Appellant ascribed wrong issues to the grounds as indicated in his brief, that is of no moment and is a mere technicality which does not affect the competence of the issues submitted for adjudication. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROOF OF TITLE TO LAND: WHETHER THE ONUS OF PROOF OF TITLE IN A CLAIM FOR DECLARATION OF TITLE TO LAND LIES ON THE PLAINTIFF
In AREMU v. ADETORO (2007) 16 NWLR Pt. 1060 Pg. 244 at 257, the Supreme court per Niki Tobi JSC held that in a claim for declaration of title to land, the onus is on the Plaintiff to prove the title to a defined area to which a declaration can be attached and that the defined area is the boundary of the land. The Supreme Court referred to ODESANYA v. EWEDEMI (1962) 1 ALL NLR 320. See also OLUFOSOYE v. OLORUNFEMI (1989) 1 NWLR Pt.95 Pg.26, and ELIAS v. OMO-BARE supra cited by Appellant’s Counsel. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATEMENT OF CLAIM: POSITION OF THE LAW ON HOW A STATEMENT OF CLAIM MUST BE CONSIDERED
A Statement of Claim must be considered along with the writ and the entire statement and its consideration must include plans and other documents filed along with the statement of Claim. See JACOB ADELUSOLA v. JOSEPH OLADIRAN AKINDE (2004) 5 SCNJ 235. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
IDENTITY OF LAND: CIRCUMSTANCE WHEN THE IDENTITY OF THE LAND IN DISPUTE WILL BE IN ISSUE
It is much a feted legal stand by the Supreme Court that the identity of the land in dispute will only be an issue where the Defendant in his statement of defense specifically disputes the description of the land given in the Plaintiff’s statement of claim. See ADESHINA v. BAC ELECTRICAL CO. LTD. (2007) ALL FWLR Pt. 369 PG.1279, AREMU v. ADETORO supra. In GBADAMOSI v. DAIRO (2007)1 SCNJ pg. 444; (2007) 3 NWLR Pt. 1021 pg. 282 at 302 Musdapher JSC held that: “It is now settled law that requires no citation of any authority that the identity of land in dispute will only be in issue if and only if the Defendant in his statement of defence makes it one”. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROOF OF IDENTITY OF LAND: WHETHER WHEN THE IDENTITY OF LAND IS CLEAR AND NOT IN DISPUTE, A SURVEY PLAN IS STILL NECESSARY TO PROVE IDENTITY OF LAND
…the law is that a survey plan is not even necessary to prove identity of land when the identity of land is clear and not in dispute. See ADEDEJI v. OLOSO (2007) 1-2 SC 76 at 137. Where a party to a land dispute had produced and tendered the survey plan showing the area he is claiming with certainty and ascertainable boundaries, he need not call a surveyor. It is not compulsory for a Plaintiff to file or tender a survey plan. See CHIEF S. O. AWOYOOLU v. SUFIANO YUSUF ARO (2006) 2 SCNJ 44. The Supreme Court also held emphatically in OGEDENGBE v. BALOGUN (2007) ALL FFWLR Pt. 366 Pg. 615 at 628, (2007) 3 SC (Pt 11) Pg. 71 that it is the duty of the Defendant to apply for more particulars if he is not sure of the identity of the disputed land. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
RELIEFS: WHETHER A COURT CAN GRANT AN UNCLAIMED RELIEF
It is also a feted position of the law that a court cannot grant a relief not claimed or one not consistent with the party’s case and claim. See EDEBIRI v. EDEBIRI (1997) 4 SCNJ 177; AGBI v. OGBEH (2006) 5 SCNJ 314; A.G. FEDERATION v. A.I.C. LTD. (2000) 6 SCNJ 171. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
HENRY ATUCHUKWU Appellant(s)
AND
GLORIA ADINDU Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Abia State sitting at Osisioma Ngwa Judicial Division delivered by Hon. Justice E. N. Ejelonu J. on 17th February, 2006. The facts that led to this appeal are as follows:
By Writ of Summons filed on 14/4/2004 and Amended Statement of Claim filed on 28/2/2005, the Respondent as Plaintiff in the Lower Court claimed at Page 81 of the record as follows:
“a) Declaration that the Plaintiff is entitled to a grant of statutory Right of Occupancy over a piece or parcel of land known as and called Egbelu Umuatako (4 plots) lying at Egbelu Umuatako in Osisioma Ngwa Local Govt. within the jurisdiction of this Honourable Court.
b) Ten Million Naira damages against the Defendant for trespass;
c) An Order of Court setting aside any purported Power of Attorney granted to the Defendant by any member of Umuatako family or any other person.
Perpetual Injunction restraining the Defendant, his agents, servants, workers or anybody claiming through him from further entry into the land.”
The Respondent filed a 10 paragraph Amended Statement of Claim and the Appellant filed a 3 paragraph Statement of Defence. The Respondent gave evidence and called 3 witnesses while the Appellant gave evidence and called a witness. At the end of the trial, the learned trial judge made the following orders:
1. The Plaintiff is entitled to a grant of statutory Right of Occupancy over a piece or parcel of land known as and called Egbelu Umuatako situate and lying at Egbelu Umuatako in Osisioma Ngwa Local Governemnt.
2. N850,000.00 cost is awarded against the Defendant for trespass.
3. The Power of Attorney granted to the Defendant by any member of Umuatako family or any other person is hereby set aside.
4. The Defendant, his agents, servants, workers or anybody claiming through him is perpetually restrained from further entry into the said land.
Hence this appeal. The Appellant’s brief is dated 22/10/07 filed on 25/10/07. The Appellant also filed a Reply brief dated 29/5/08 filed on 30/5/08. The Respondent filed a Respondent’s brief dated 18/2/08 on 22/2/08. It was deemed filed on 15/5/08. The Appellant identified four issues for determination set out as follows:
1. Whether the lower court, bereft of any delineation, was right to award title over the largely undisputed Egbelu Umuatako land to the Respondent who claimed only “4 plots” of land therein (GROUND. I)
2. Whether the exact metreage, dimension and boundaries of the “4 plots” of land claimed by the Respondent are ascertained from the pleadings and evidence adduced at the trial, to warrant grant of declaration and injunctive reliefs, etc. (GROUND ii)
3. Whether the findings of forgery of Appellant’s title documents and refusal of the equitable defence of laches and acquiescence, are sustainable on the pleadings and evidence adduced. (GROUNDS I, III, V)
4. Whether the findings of the lower court are sustainable without any evaluation of evidence extracted under cross-examination which faulted the identity/credibility of the Respondent and her witnesses (GROUND IV)
The Respondent formulated five issues set out as follows:
(a) Whether the learned trial judge did not regard, consider or evaluate the defence of title and laches/acquiescence when delivering judgment. – Ground (i)
(b) Whether considering the plaintiff’s pleadings and evidence led at the trial, the boundaries of the 4 plots of land were in issue to warrant the grant of the declarative and injunctive reliefs sought by the plaintiff. – Ground (ii).
(c) Whether the learned trial judge correctly adjudged exhibit D5 as found on forgery in view of the facts pleaded and evidence led at the trial. – Ground (iii)
(d) Whether the learned trial judge was right to hold that “the point of the signature have no bearing to the central issue” in the course of delivering judgment.-Ground (iv).
(e) Whether from the preponderance of evidence the judgment can be sustained. Ground (v).
The Respondent included a notice of objection in the Respondent’s brief which was also argued therein. I will deal with the objection first. Respondent’s counsel objected that issue 1 identified by the Appellant did not flow from Ground 1, just as issue 4 did not flow from Ground 4. It was also argued that issue 3 is stated to cover Grounds (i), (iii) and (vi) of the Grounds whereas this is not so. Counsel argued that no discernable issue was formulated by the Appellant which covers Grounds (iv) and Ground (v). Counsel argued that all issues for determination must be based on a ground of appeal otherwise it would be incompetent. He cited OSIGWE v. UNIPETROL (2005) 5 NWLR (Pt. 918) 261 @ 284; AJIBONA v. KOLAWOLE (1996) 45 LRCN 2514 @ 2524U; PRP v. INEC (2004) 9 NWLR (Pt. 877) 24 @ 41; ENEMUO v. DURU (2004) 9 NWLR (Pt. 877) 75 @ 101. See; AWUSE v. ODILI (2004) 8 NWLR (9Pt. 876) 481 @ 524; KLM AIRLINES v. KUMZHI (2004) 8 NWLR (Pt. 875) 231 @ 250.
Learned Respondent’s counsel argued that an issue for determination that has no ground covering it becomes a non-issue and arguments thereon must be discountenanced. Counsel submitted that issues Nos. (i), (iii) and (iv) must be discountenanced. He cited PRP v. INEC (2004) 9 NWLR (Pt. 877) 24 @ 41; ENEMUO v. DURU (2004) 9 NWLR (Pt. 877) 75 @ 101: BAYO v. NJIDDA (2004) 8 NWLR (Pt. 876) 544 @ 581-582.
Counsel also argued that the joint argument in support of issues (i) and (ii) cannot be severed by this court and must thus be discountenanced. The resultant effect is that the appeal becomes bereft of any argument. He cited SEHINDEMI v. GOV. LAGOS STATE (2006) 10 NWLR (Pt. 987) 1 @ 28A-D; LAHH v. OPALUWA (2004) 9 NWLR (Pt. 879) 558 @ 573.
Learned Appellant’s counsel argued in reply that the Appellant’s complaint in ground 1 is against the judgment awarding title to the Respondent includes issue 1 on declaration of title and issue (ii) on identity of the specific land in dispute. Counsel argued that the two issues were argued together since similar considerations of law and fact are needed to resolve both issues. Counsel also argued that issue (iv) alleging misdirection by the trial judge on the evidence of the points of signature clearly flows from Ground (iv). He argued that issue (iii) flows from Ground (v) which is the omnibus ground of appeal.
Counsel argued that issue (iii) falls within the ambit of Grounds (i), (ii) and (v). Counsel submitted that the gamut of the objections raised by the Respondent is that the Appellant had incorrectly ascribed issues for determination with grounds of appeal and that even if conceded, it is a mere technical flaw in the process of the Appellant. Counsel cited A.G. AKWA IBOM v. ESSIEN (2004) 7 NWLR Pt. 875 Pg. 288; UGO v. OBIEKWE (1989) 1 NWLR Pt. 99 Pg. 566 at Pg. 581; UDO v. CSNC (2001) 14 NWLR Pt. 732; AFRICAN PETROLEUM LTD. v. OWODUNNI (1991) 8 NWLR Pt. 210 Pg. 391.
The grounds of appeal in this case with their particulars are set out below:
GROUNDS OF APPEAL
ERROR IN LAW
The learned trial judge erred in law when he entered judgment in favour of the Plaintiff without regard to the pleadings and available evidence as presented particularly on the twin issues of title and laches and acquiescence canvassed before him.
PARTICULARS OF ERROR
(a) Issues were joined between the parties in the pleadings as to title and identity/area of the land in dispute.
(b) The Plaintiff did not join issue with the Defendant as to the applicability of the equitable principle of laches and acquiescence within the con of available facts and evidence.
(c) Despite the foregoing state of the pleadings and copious pieces of evidence in support, the learned trial judge proceeded on a voyage of his own to enter judgment as he did in favour of the Plaintiff.
ERROR IN LAW
The learned trial judge erred in law when he entered judgment over “Egbelu Umuatako” land contrary to the Plaintiff’s reliefs and pleadings, the evidence adduced before him and devoid of any delineation of the area covered by the judgment award.
PARTICULARS OF ERROR
a) The Plaintiff simply claimed “4 plots” of land as the land in dispute out of larger Egbelu Umuatako land which is pleaded as not in dispute.
b) The Defendant in his Statement of Defence denied knowledge of the boundaries of the 4 plots of land being claimed by the Plaintiff within the larger undisputed Egbelu Umuatako land.
c) Despite joinder of issues as to the extent or dimension of the dispute land, the Honourable court proceeded to enter judgment for the larger Egbelu Umuatako land to the Plaintiff in excess of the specific claim before him and devoid of any delineation of the area awarded.
ERROR IN LAW
The learned trial judge erred in law when he adjudged the Defendant’s Exh.D5 as forged, despite dearth of pleaded particulars of forgery.
PARTICULARS OF MISDIRECTION
(a) In the Plaintiff’s pleadings, it was alleged that the Defendant’s title documents were forged on ground of disparity in the dates stated in the witness column.
(b) In cross-examination, the Plaintiff testifying as PW4 maintained that she had never seen or sighted the Defendant’s title documents which she pleaded as forged.
(c) Similarly PW1 testifying for the Plaintiff also told the court that he had never seen the Defendant’s title document Exh.D5 which was alleged by the Plaintiff to be forged and allegedly signed by him (PW1).
(d) Furthermore, the Plaintiff failed to plead necessary or other particulars of the forgery alleged.
MISDIRECTION
The learned trial judge misdirected himself when he held thus: “The points of signature have no bearing to the central issues.
PARTICULARS OF ERROR
a) The Plaintiff’s title document Exh.P1 was admitted in evidence through PW2 who claimed to be Donor and signatory thereto.
b) When PW2 was confronted under cross-examination, he could not sign his alleged signature as contained in Exh.P1, a comparison of his signature Exh.P2 signed in the witness box reveals grave disparity and gives away PW2 as an impersonator.
c) In the same manner the Plaintiff who sued as “Gloria Adindu” told the court under cross-examination that she is actually Mrs. Gloria Gbaruko which name was never pleaded or revealed to the court before then.
d) When the foregoing contradictions attacking their credibility portraying the Plaintiff and PW2 as impersonators, the trial court nevertheless held that the defect in the signatures were immaterial.
The judgment is against the weight of evidence.
In respect of the first ground of objection, particularly in respect of issues 1, I am of the opinion that the particulars of error show the complaint of the Appellant from which that issue was derived. In any event, issues 1 and 2 are derived from grounds (I) & (II). Issue 3 is derived from ground (iii) where the complaint against the finding of forgery was made. Issue 4 is derived from Ground (iv) of the notice of appeal. In this case, even where the grounds are couched in obtuse terms, the particulars clearly show the specific complaints of the Appellant. There is absolutely no misunderstanding of the specific complaints raised by the Appellant and the issues derived from them.
The rules and case law is clear that so long as the grounds of appeal clearly show the Appellant’s complaint against the decision and the Respondent is not left in a state of confusion, then the grounds are valid grounds. Even if the Appellant ascribed wrong issues to the grounds as indicated in his brief, that is of no moment and is a mere technicality which does not affect the competence of the issues submitted for adjudication. The preliminary objection is in my humble view misconceived and hereby dismissed.
I will adopt the four issues for determination as couched by the Appellant. It is my humble view that they better represent the complaints in the grounds of appeal. Appellant’s Counsel presented joint arguments in respect of issues I and II.
ISSUES ONE AND TWO
The crux of both issues as raised by the learned Appellant’s counsel is whether there was certainty of the boundaries and identity of the land in dispute. Counsel argued that the Respondent in paragraph 4 of the Statement of Claim only indicated that the area of land in dispute is 4 plots of land surrounded by the Egbelu Umuatako land which was known to the Appellant. The Respondent did not plead dimensions or boundaries of the land. Counsel submitted that a Plaintiff seeking declaration of title must plead and prove necessary facts and cannot rely on admissions in the pleadings of defence. He cited TITILAYO v. OLUPO (1991) 7 NWLR Pt. 205 Pg. 619 Ratio 1 (SC); GENERAL COTTON MILL LTD. v. TRAVELLERS PALACE HOTEL LTD. (2006) 10 NWLR Pt. 989 Pg.502 Ratio 2; MOGAJI v. ODOFIN (1978) 4 SC 91; ETIM v. OYO (1978) 6-7 SC 91.
Counsel submitted that without accurately ascertainable boundaries, a Defendant will not be able to defend the action and the court cannot grant declaratory releifs on an undefined area of land. He cited OLUFOSOYE v. OLORUNFEMI (1989) 1 NWLR Pt. 95 Pg. 26 at 42; IJADE v. OGUNYEMI (1996) 9 NWLR Pt. 470 Pg. 17; OKERE v. NWOKE (1991) 8 NWLR Pt. 209 Pg. 317; ELIAS v. OMO-BARE (1992) 5 SC Pg. 25.
Counsel further submitted that even where the location and identity of the land is not in dispute, the Plaintiff is still obliged to establish in his pleadings and evidence an identifiable area to which his claim relates. Learned counsel argued that it was wrong of the court to award the general area including undisputed land to the Respondent in order to side step the lack of certain boundaries. Counsel submitted that the lower court exceeded its jurisdiction when it failed to restrict its judgment award to the “4 plots” but gratuitously granted the entire “Egbubu Umuatako” which is a larger area and undisputed to the Respondent. He argued that the relief couched in vague terms cannot be granted by the court. He cited KANKIA v. MAIGEMU (2003) 6 NWLR Pt. 817 Pg. 496; OFUME v. NGBEKE (1994) 4 NWLR Pt. 341 Pg. 746; OSHO v. APE (1998) 8 NWLR Pt. 562 Pg. 492; LAWSON v. AFANI CONTINENTAL CO. LTD. (2002) 2 NWLR Pt. 752 Pg. 585; ETIKO v. AROYEWUN (1959) SCNLR 308; ARABE v. ASANLU (1980) 5-7 SC 78; OSENI v. DAWODU (1994) 4 NWLR Pt. 338 Pg. 390; OKEDARA v. ADEBARA (1994) 6 NWLR Pt. 349 Pg. 157; OSIEGBU v. OKOH (2005) 16 NWLR Pt. 950 Pg. 58; A.G OGUN v. A.G FEDERATION (2002) 18 NWLR Pt. 798 Pg. 232; OKUGBULE v. OYAGBOLA (1990) 4 NLWR Pt. 147 Pg. 723.
Counsel argued that the Respondent was obliged to tender a survey plan counter-signed by the Surveyor-General for it to be admissible in evidence. Learned counsel then submitted that the failure of the Respondent to prove the principal relief of declaration means that the consequential reliefs would also fail. He cited YUSUF v. CO-OPERATIVE BANK LTD. (1994) 7 NWLR Pt. 359 Pg. 676; UNION BANK PLC v. DAPPA -BIRIYE (2000) 12 NWLR Pt. 682 Pg. 588; IMAH v. OKOGBE (1993) 9 NWLR Pt. 316 Pg. 159; MAKANJUOLA v. BALOGUN (1989) 3 NWLR Pt. 125 Pg. 141; UDEZE v. CHIDEBE (1990) 1 NWLR Pt. 125 Pg. 141.
Learned Respondent’s counsel answered these above arguments on pages 15 – 21 and paragraphs 6.00 – 6.07 of the Respondent’s brief. Learned Respondent’s counsel argued that the writ and statement of claim was accompanied by a copy Exh.P1 which clearly incorporated a survey plan showing the area in dispute which was tendered and admitted. Counsel submitted that the Appellant never denied the boundaries of the disputed land to put the Respondent to the strictest proof thereof. Counsel submitted that the court was right to rely on Exh.P1 which showed the boundaries of the land which was pleaded to make findings of fact as against any oral evidence by the Respondent and that the court was correct to give legal effect to the contents of Exh.P1
Learned Respondent’s counsel also argued that the Appellant did not frontally and specifically deny the Respondent’s averment that the Appellant knew the boundaries of the land in dispute and that the general traverse by the Appellant did not place a burden of proof on the Respondent. He argued that the court is not bound to accept the evidence of a surveyor on boundaries and description if the parties know the land. He cited OGBEIDE v. OSULA (2004) 12 NWLR Pt. 886 pg. 86 at 131-132, YUSUF v. KEINSI (2005) 13 NWLR Pt. 943 Pg. 554 at 571 Respondent’s Counsel also submitted that the Appellant never appealed against that finding of fact and urged us to hold the fact as admitted. He cited OKONKWO v. INEC (2004) 1 NWLR Pt. 854 Pg. 242, ILONA v. IDAKWO (2003) 11 NWLR Pt. 830 Pg. 53. On the issue of the order given by the learned trial judge, Learned Respondent’s counsel argued that the judgment did not indicate that the trial judge awarded “the entire Egbelu Umuatako” land to the Plaintiff even though the judgment mistakenly omitted the phrase “4 plots” as claimed by the Respondent in the judgment. Counsel argued that such an omission did not occasion a miscarriage of justice and that it is not every error or slip in a judgment that would form the basis of interference by the appellate court. He cited OSENI v. DAWODU (1994) 4 NWLR Pt. 339 Pg. 300 at 304 Counsel then urged this court to invoke its judgment under Order 4 r(1) and (4) of the court of Appeal Rules 2007 to insert the omitted phrase “4 plots” in the order to ensure the determination of the real question in controversy between the parties. He cited ADENLE v. OLUDE (2002) 18 NWLR Pt. 799 Pg. 413.
At page 160 of the record, this is what the learned trial judge had to say on this issue:
“The points raised by the Defendant on proof of area, acreage and identity of the disputed land are not sufficient to discredit the believed evidence of PW1-PW3. Both parties know the disputed land where it was alleged DW1 lives; See the evidence of DW2. In the case of DOSUNMU v. DADA (2002) 13 NWLR Pt. 783 Pg. 1, it was made clear that a survey plan of the land is not a sine qua non to making award of title to the land and that what is necessary is that the land, the subject of the award must be ascertained with definite certainty. But in OJIBAH v. OJIBAH (1991) 5 NWLR Pt. 191 Pg. 296 at 301 it was held that where it was certain that the portion known and are ad idem as to the location of the boundaries of the land in dispute as plan is required. Here both parties in their pleadings and evidence were ad idem as to the location of the disputed land.”
In AREMU v. ADETORO (2007) 16 NWLR Pt. 1060 Pg. 244 at 257, the Supreme court per Niki Tobi JSC held that in a claim for declaration of title to land, the onus is on the Plaintiff to prove the title to a defined area to which a declaration can be attached and that the defined area is the boundary of the land. The Supreme Court referred to ODESANYA v. EWEDEMI (1962) 1 ALL NLR 320. See also OLUFOSOYE v. OLORUNFEMI (1989) 1 NWLR Pt.95 Pg.26, and ELIAS v. OMO-BARE supra cited by Appellant’s Counsel.
The court went further in AREMU v. ADETORO supra to hold that the test for the establishment of the identity of the land in dispute is whether a surveyor can, from the record, produce an accurate plan of such land. While it is the law that a plan is not in all cases sine quo non, some description is necessary to make a disputed land ascertainable.
Let us examine the pleadings in this case to determine whether sufficient particulars were given in the pleadings to satisfy the onus placed on the Respondent. At pages 5-13 of the record, the statement of claim with its annexure is illuminating. Paragraphs 4 and 7 of the statement of claim are reproduced below
4. The land in dispute is surrounded by Egbelu Umuatako not in dispute. Not all the Egbelu Umuatako land is in dispute. The land in dispute is 4 plots of land donated by the grandsons of Atako to the Plaintiff for a valuable consideration in 1988. The land in dispute its area, extent boundaries and abuttals is well known to the Defendant; The Plaintiff did fence the entire land now in dispute with cement block as soon as the land was donated to her. (Underlining mine)
7. The head of the family and other principal members of Atako mentioned in paragraph 6 of this Statement of Claim prepared a Power of Attorney transferring their interests, rights, possession and privileges in the said piece or parcel of land to the Plaintiff. A copy of the said Power of Attorney is pleaded and is annexed as Exh.’A’.
Exh. A attached to the statement of claim contained a survey plan showing the specific dimensions of the portion of land claimed by the Respondent. A Statement of Claim must be considered along with the writ and the entire statement and its consideration must include plans and other documents filed along with the statement of Claim. See JACOB ADELUSOLA v. JOSEPH OLADIRAN AKINDE (2004) 5 SCNJ 235. Thus, the pleading of the Respondent satisfied the conditions imposed as regards particulars of description to wit: that the description must be such that a surveyor taking the record could produce a plan showing accurately the land in dispute. The argument of learned Appellant’s counsel that the Respondent never pleaded metreage, dimension and there was no clear delineation of the land in dispute is factually wrong and all legal argument in that regard are thus misconceived.
It is much a feted legal stand by the Supreme Court that the identity of the land in dispute will only be an issue where the Defendant in his statement of defense specifically disputes the description of the land given in the Plaintiff’s statement of claim. See ADESHINA v. BAC ELECTRICAL CO. LTD. (2007) ALL FWLR Pt. 369 PG.1279, AREMU v. ADETORO supra. In GBADAMOSI v. DAIRO (2007)1 SCNJ pg. 444; (2007) 3 NWLR Pt. 1021 pg. 282 at 302 Musdapher JSC held that:
“It is now settled law that requires no citation of any authority that the identity of land in dispute will only be in issue if and only if the Defendant in his statement of defence makes it one”.
Now, the statement of defence is particularly remarkable in its brevity. It contained only 3 paragraphs. The 1st paragraph states in relevant part as follows:
“Save to admit paragraph 2, the Defendant vehemently denies the rest of the Statement of Claim and shall at the hearing found on irrevocable Power of Attorney.”
This was a general traverse of the statement of claim except the address of the Appellant which was admitted.
This was the point specifically made by Musdapher JSC in GBADAMOSI v. DAIRO where His Lordship said that the statement of defence and counter-claim contained only a general denial of the statement of claim and did not contain any specific denial of the averment relating to the identity of the land. See pg. 454 of the SCNJ report. I agree with the learned Respondent’s counsel that a general traverse is evasive and may be treated as placing no burden of proof on the Plaintiff unless other paragraphs in the statement of defence contain a denial of the Plaintiff’s averment. See OGBEIDE v. OSULA (2004) 12 NWLR Pt. 886 Pg. 86 at 131-132 cited by Respondent’s counsel. A Plaintiff’s averment must be met by the Defendant frontally and categorically. Once averments are not met directly, the Defendant is taken to have admitted them. See OWOSHO v. DADA (1984) 7 SC 149.
The point made by leaned Appellant’s counsel that only a copy of the survey signed by the Surveyor-General is acceptable is completely misconceived since the law is that a survey plan is not even necessary to prove identity of land when the identity of land is clear and not in dispute. See ADEDEJI v. OLOSO (2007) 1-2 SC 76 at 137. Where a party to a land dispute had produced and tendered the survey plan showing the area he is claiming with certainty and ascertainable boundaries, he need not call a surveyor. It is not compulsory for a Plaintiff to file or tender a survey plan. See CHIEF S. O. AWOYOOLU v. SUFIANO YUSUF ARO (2006) 2 SCNJ 44.
The Supreme Court also held emphatically in OGEDENGBE v. BALOGUN (2007) ALL FFWLR Pt. 366 Pg. 615 at 628, (2007) 3 SC (Pt 11) Pg. 71 that it is the duty of the Defendant to apply for more particulars if he is not sure of the identity of the disputed land.
The evidence led at the trial by the Appellant showed that he had finished building the house on the said parcel land and was living there. Therefore, I am of the humble view that on the issue of whether the Appellant had caused the identity of the land to be in dispute and whether it was actually in dispute before the trial court, I would answer in the negative.
On the question of the order given by the trial court wherein it is alleged by the Appellant that the court gave more than was asked from it, let us look at the 1st order made. It is on page 62 of the record.
” The Plaintiff is entitled to a grant of statutory Right of Occupancy over a piece or parcel of land known as and called Egbelu Umuatako situate and lying at Egbelu Umuatako in Osisioma Ngwa Local Government.”
I find it difficult to agree with the arguments of learned Appellant’s counsel that the court exceeded its jurisdiction. It is also a feted position of the law that a court cannot grant a relief not claimed or one not consistent with the party’s case and claim. See EDEBIRI v. EDEBIRI (1997) 4 SCNJ 177; AGBI v. OGBEH (2006) 5 SCNJ 314; A.G. FEDERATION v. A.I.C. LTD. (2000) 6 SCNJ 171. I agree with the learned Respondent’s counsel that the language of the order did not convey the impression that what was granted to the Respondent was all the land at Egbelu Umuatako. Rather it was a land called Egbelu Umuatako situate at Egbelu Umuatako. It is conceded that the order was inelegantly drafted and the failure to state that it was a parcel of land consisting of 4 plots only at Egbelu Umuatako was an error or slip in the judgment.
As held earlier in this judgment the disputed parcel of land consisting of 4 plots was known to the parties. Both parties know the land to which the order attaches. It is when the order made does not arise at all from the pleadings and evidence or is couched to exceed the claim or to contradict the claim of the Respondent that it can be said that the court lacks jurisdiction to grant a relief not claimed. See AGBI v. OGBEH (2006) 5 SCNJ 314. The slip by the trial court – I would not go so far as to call it an error because an error would be one pertaining to a substantial item of fact or law, which will only warrant a reversal of the judgment when it causes miscarriage of justice. See ALH. ISIYAKU YAKUBU ENTERPRISES v. MR. S. B. OMOBOLAJE & ORS. (2006) 1 SCNJ 86. This is where the error or slip has materially affected the decision arrived at to the detriment of a party. See BAYOL v. AHEMB (1999) 7 SCNJ 223. See GBADAMOSI v. DAIRO supra; EDEANI NWAVU v. CHIEF OKOYE (2008) 12 SCNJ 460.
It cannot be said that miscarriage of justice has resulted from the slip made by the trial court since the most negative interpretation of the order is that it covers other undisputed land to which the Appellant lays no claim and his interest is unaffected. Learned counsel for the Respondent has asked this court to correct the slip made by the lower court by exercising jurisdiction in that regard conveyed by Order 4 r (1) and (4) of the Court of Appeal Rules 2007. The relevant rules states as follows:
“Rule 1. In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the High Court, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before or inquiry and report by an official or special referee. In relation to a reference made to an official or special referee, anything which can be required or authorized to be done by, to, or before the High Court, shall be done by, to or before the court.
Rule 4. The powers of the court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice, and the court may make any order, as such terms as the court thinks just to ensure the determination of the merits of the real question in controversy between the parties.
I would also utilize the powers of this court under Order 18 r 11 to correct the slip in the judgment. It provides as follow:
Order 18 Rule 11 (1)The court shall have power to give any judgment or make any order that ought to have been made, and to make such further order as the case may require including any order as to costs.
Any slip in the judgment can be rectified as long as it does not occasion miscarriage of justice. See ALH. ISIYAKU YAKUBU ENTERPRISES v. MR. S. B. OMOBOLAJE & ORS. (2006) 1 SCNJ 86. Indeed this court as an appellate court has inherent powers to correct a slip in the judgment of a trial court since it has all the powers to make any order that the trial court ought to have made. Since the trial court can correct a slip in its judgment, the appellate court also can do so. See JOHN EZE v. MATTHAIAS OBIEFUNA (1995) 7 SCNJ 75. In that case the Supreme Court held that it was a mere slip to assign an incorrect a nomenclature in place of a relief claimed. Iguh JSC said it was a mere clerical mistake or misdescription of the rights in issue by the court which would not deceive any party to the proceedings. Indeed the Supreme Court per Ogundare JSC in CHIEF WALTER AKPAN v. CHIEF EDO EKONG UMOH (1999) 7 SCNJ 154 suo motu corrected an error in the judgment of the trial court which mistakenly referred to a wrong survey plan to which the declaration was tied. I think the rules of this court gives this court the power to correct this clerical slip as requested by learned Respondent’s counsel. In the circumstances all the points in issues 1 and 2 raised by learned Appellant’s counsel are resolved in favour of the Respondent.
ISSUE THREE
This issue as couched by the Appellant in my view joined two unrelated questions. It encompassed both the issue of the alleged findings of forgery of the Appellant’s title documents by the trial court and the separate issue of the defence of lashes and acquiescence put up by the Appellant.
On the issue of forgery, learned Appellant’s counsel submitted that paragraph 9 (iv) of the Respondent’s pleadings did not contain any serious allegation of forgery and no particulars were supplied as required by Order 25 r 6 (1) of the Abia State High Court (Civil Procedure) Rules 2001. He cited FINNIH v. IMADE (1992) 1 NWLR Pt. 219 Pg. 511; ACB v. APUGO (1995) 6 NWLR Pt. 399 Pg. 64. Counsel further argued that the basis for the allegation in the pleadings of the Respondent was that in the Appellant’s title document Exh.D, the witness signed on a date different from the date of execution. Counsel submitted that the date of execution is legally irrelevant and thus the signature by a witness is equally unimportant. He cited OBORO v. RSH & PDA (1997) 9 NWLR Pt. 521 Pg. 425 and JEGEDE v. CITICON NIG. LTD. (2001) 4 NWLR Pt. 702 Pg. 112.
Learned Respondent’s counsel argued that the learned trial judge subjected the Appellant’s Power of Attorney to some tests to determine its validity and used the tests in ROMAINE v. ROMAINE (1992) 4 NWLR Pt. 238 Pg. 650. Counsel argued that no other Jacob Nwala was fielded by the Appellant except PW1 and it turned out he wasn’t the donor of Exh.D5. The Appellant’s direct donor was not also called to give evidence which was a material lacuna in view of the allegation of falsity of the document. He argued that the court made the correct finding on the question of forgery of the document.
On this issue, the learned trial judge held at pages 157-159 of the record that the production of documents carried with it the need for the court to enquire into some questions. He set out the questions as recommended by Nnaemeka-Agu JSC in ROMAINE v. ROMAINE supra as follows:
(a) Whether the document is genuine and valid.
(b) Whether it has been duly executed, stamped and registered.
(c) Whether the grantor had in fact what he purported to grant.
(d) Whether the grantor had the capacity and authority to make the grant.
(e) Whether it had the effect claimed by the holders of the instrument.
The court was satisfied that the document presented by the Appellant satisfied questions a and b. However, his Lordship was of the view that questions c, d and e were not satisfactorily answered. His Lordship found that the facts of contradiction or fraud were pleaded in paragraph 9 of the amended Statement of Claim and evidence adduced in support. The court also found that PW1 denied ever knowing Ogbonna Ogbonna and that the land does not belong to him as he has no inheritance at Umuatako, and he could not sign a document and the court concluded that the evidence of PW1 showed the falsity of Exh.D5 See page 158 of the record.
The learned trial judge held the view that the evidence of one witness is sufficient to establish commission of a crime and that since forgery was a crime it must be proved by the Respondent beyond reasonable doubt. His Lordship held further at pages 158-159 of the record:
“In the present once there is uncontradicted evidence to the effect that:
(i) PW1 is not the owner of the land.
(ii) In Exh.D5 one Jacob Nwala was represented as being the beneficial owner by inheritance.
(iii) The said Jacob Nwala signed his signature as the donor in Exh.D5.
(iv) PW1 does not know how to sign documents.
There is no other Jacob Nwala that was fielded except PW1. The Defendant did not call the other Jacob Nwala that was the donor in Exh.D5. Ogbonna Ogbonna was not also called. Without doubt, in view of the allegation of falsity of Exh.D5 his evidence is material.”
The learned trial judge also considered extensively the issue of uttering the document which he held as forged. He held at page 159 of the record as follows:
“The other ingredient of forgery which is presentation of the falsity to another person as genuine. The evidence before me is that Exh.D5 was handed over to Ogbonna Ogbonna who acted on it by donating the same land to the Defendant. By virtue of Exh.D3 the said Ogbonna Ogbonna was represented as becoming the owner in possession of the said land. An inference of gaining benefit from the falsity could be spotlessly drawn from the documentary evidence. That proved element of crime provided answers to the 1st, 3rd-5th questions instructively raised in the case of Romanine supra. The answers are that (1) Exh.D5 is not genuine and valid (2) the grantor – Jacob Nwala has not what her purported to grant and he neither has the capacity nor authority to make the grant. The effect obtained by Ogbonna Ogbonna in Exh. D5 does not exist. In the light of the above the more registration of Exhs.D3 and D5 and the head Power of Attorney – did not validate them. Both documents are founded on forgery and false representation. See the case of LABABEDI & ANOR. v. LAGOS MOTAL IND. LTD. & ANOR. (1973) 8 NSCI.
Let me say that the argument that the Respondent as PW4 led no evidence of “forgery” is of no moment since she called PW1 who gave pertinent evidence in that regard. The case of the Appellant at the trial court was that he bought the land in dispute from one Ogbonna Ogbonna and that Ogbonna Ogbonna derived his title to the land from Jacob Nwala of Umuokehie, Umugasi in Amasato Community. Jacob Nwala as PW1 swore before the court that he didn’t know Ogbonna Ogbonna and did not pass any land to him. Also that he came from Umuokehie and the land is situate at Umuatako in Umuacham. After the Respondent as Plaintiff brought witnesses to impugn the document Appellant relied on which is Exh.D5, the Appellant made no attempt to save the document by calling the executors or the witnesses who would prove their entitlement to the power they donated. Ogbonna Ogbonna donated power of attorney to the Appellant in Exh.D3 whereas Ogbonna Ogbonna got the power from one Jacob Nwala in Exh.D5. Some members of the Umuatako family who claim to be the original owners of the land – PW2 and PW3 out of eight donors to the Respondent gave evidence to that effect. It appears that the failure of the Appellant to satisfactorily explain how he came about Exh.D3 and Exh.D5 led to the conclusion of “forgery” by the learned trial judge. Since no Jacob Nwala or his legal representative came forward to explain how he came about the land, then Exh.D5 the document purportedly executed by him passing title to Ogbonna Ogbonna cannot confer any grant on the later. I agree that Exh.D3 and D5 was founded at least on false representation if not forgery. Both Exh.D3 and Exh.D5 seems to have been generated from thin air. The Appellant could not produce Ogbonna Ogbonna to whom he gave N=2.4 Million to tender and prove Exh.D3 and D5.
Commission of a crime must be proved beyond reasonable doubt whether in civil or criminal proceedings and the burden is on the person who alleges. See OKETIE v. OLUGHOR (1995) 6 SCNJ 217.
The law is that a document is presumed genuine when it is produced from proper custody and substantially in the proper form required by law. See OKONJI v. NJOKANMA (1999) 12 SCNJ 259.
Let me make a distinction here between grammatical and criminal forgery. Forgery is a criminal offence which must be proved beyond reasonable doubt. Even though the learned trial judge after subjecting the documents to the rule in ROMAINE v. ROMAINE supra found that a crime had been proved beyond reasonable doubt, I do not think that the mere speculative observation of the Respondent and her witness given flesh by the reasoning of the learned trial judge can be substituted for conclusive and hard evidence of criminal forgery. However, the case made by the Respondent at the lower court must be considered in order to determine whether or not there was a legal burden on her to prove forgery beyond reasonable doubt. In CHIEF VICTOR NDOMA-EGBA v. ACB (2005) 7 SCNJ 461 Oguntade JSC held that
“The case put before the trial court by the Plaintiff deserves to be meticulously and reflectively analyzed in order to determine whether he had set out to establish the commission of a crime by anybody such as would impose on him the necessity to establish a case of forgery beyond reasonable doubt.”
Let us look at the circumstances of this case. It was not the case of the Respondents that any named person had forged Exh.D3 and Exh.D5. An examination of S.138 (1) of the Evidence Act and statement of Claim shows that the allegation of crime contained in paragraph 9 of the Statement of Claim was not made specifically to a party or against a party or that the commission of a crime was directly in issue and that it is the proof beyond reasonable doubt of the crime that would enable the Plaintiff succeed in the action. In fact part of paragraph 9 (iv) is to the effect that:
“The Defendant bought nothing from Jacob Nwala and Ogbonna Ogbonna since they have no title to the land in dispute.”
Therefore, the case made by the Respondents is not one of criminal forgery but that Exh.D3 and D5 were useless documents which could not pass title to the Appellant.
The point being made here is that the finding of the trial court on this issue is of no special significance to the case of the parties and thus cannot constitute an error for which the judgment would be set aside. S.138 of the Evidence Act is inapplicable to the circumstances of this case. Even if we concede that the learned trial judge made an error by making a finding of criminal forgery that mistake will result in setting aside the judgment only if it caused miscarriage of justice. See AMAYO v. ERINMWINGBOVO (2006) 5 SCNJ 1
The 2nd aspect of this issue is the question of whether the learned trial judge properly evaluated the evidence led by the Appellant as regards the defence of laches and acquiescence. Learned Appellant’s counsel argued that the defence of laches and acquiescence availed the Appellant since there was pleaded and proved evidence before the trial court that he acquired the land which he developed and located to prior to the commencement of the suit. He submitted that the Respondent did nothing during the time he was erecting the building but waited until he had completed same before reporting to the police in March 2004 and filed the suit in April, 2004. He argued that the Respondent never denied nor joined issues on the question of development of the land by the Appellant prior to the filing of her action. He argued that the Appellant had developed the land and relocated there since December, 2003. Counsel submitted that since issues were not joined the trial court was wrong to refuse the defence. He cited JOE GOLDAY v. C.D.B. PLC (2003) 5 NWLR Pt. 814 Pg. 586; IWUOHA v. NIPOST (2002) 8 NWLR Pt. 822 Pg. 308. Counsel submitted that it was erroneous of the trial judge to place the burden of proof of laches and acquiescence on the Appellant when the Respondent never denied the fact that the Appellant had built a house on the parcel of land. Counsel submitted that this has led to miscarriage of justice. He cited BPHMB v. EJITAGHA (2000) 11 NWLR Pt. 677 Pg. 154. Counsel argued that the building took several months to erect and the Respondent never protested until a house was completed and the land was fenced.
Learned Respondent’s counsel replied that the learned trial judge evaluated extensively the evidence of laches by the pleadings and the evidence led. Counsel submitted that the learned trial judge had regard both to the pleadings and the evidence led by the parties in relation to the defence. Counsel also submitted that the Appellant did not plead the particulars of the defence of laches and acquiescence and as such the said defence was not made out and did not avail the Appellant. He cited EZEKWESILI v. AGBAPUONWU (2003) 9 NWLR Pt. 825 Pg. 337 at 381; OKEREKE v. NWANKWO (2003) 9 NWLR Pt. 826 Pg. 592 at 617. Counsel also submitted that the argument of learned Appellant’s counsel that the learned trial judge should have taken into consideration affidavit and processes including photographs, writ of summons, motion papers affidavit etc contained in the case file as misconceived since the court is only bound to decide issues based on the pleadings and the evidence tendered before the court during the trial. The court is not allowed to go on a voyage of discovery and base its judgment on pieces of evidence in the case file. He cited OLATUNJI v. ADISA (1995) LRCN 295; TARAB v. LAWAN (1992) 2 NWLR Pt. 231 Pg. 570; AYUA v. ADASU (1992) 2 NWLR Pt. 231 Pg. 598 at 610. Counsel argued that there was no need for the Respondent to file a reply to the Statement of Defence since the Appellant did not file a counter-claim and issues had been joined by the parties on this defence in paragraph 9 of the Amended Statement of Claim and paragraph 2 of the Statement of Defence. He cited MOHAMMED v. KCLARGESTER (1961) 1 NWLR Pt. 422 Pg. 54 at 62; ISHOLA v. SOCIETE GENERALE BANK (1997) 47 LRCN 336 at 353.
The learned trial judge held at pages 161-162 of the record that the facts of the ingredients of the defence of laches and acquiescence were not clearly stated by the Appellant in the Statement of Claim for the Respondent to react to them. The court found out that the Appellant failed to meet the requirement for the establishment of the defence of standing by or laches and acquiescence as set forth in OKOKO v. MWANKWO citation (2003) HOCOLE Vol. 1496 supplied by his Lordship.
In the first instance, I agree with the submission of learned Respondent’s counsel and the trial judge that the Appellant did not adequately plead the defence of laches and acquiescence but even then the learned trial judge proceeded to consider in considerable detail the evidence led by both parties in that regard. At page 51 of the record, the Appellant pleaded that he relied on the defence of laches and acquiescence and stated as follows:
“In further answer, the Defendant alternatively pleads laches and acquiescence, the particulars of which will be canvassed at the hearing including the fact that prior to this suit, the Defendant had completed his building and relocated his residence thereto since December 2003 without hindrance vis-aviz the Plaitntiff’s allegation of farming thereon.”
It is clear that the Appellant pleaded the fact that he moved into the completed house built on the land in December, 2003 without prior let or hindrance even though the Respondent had claimed that she was using the land for farming and ought to have seen the development going on. The law is that while raising the defences of estoppels, laches, standing by and acquiescence, it is not enough to state in pleadings merely that a party will rely on them. Full facts and particulars must be stated. See ADENIRAN v. ALAO (2001) 12 SCNJ 337. The full facts and particulars which must be pleaded by the Defendant must include details to prove that there had been time lapse between his possession of the land in dispute and the adverse title challenging his possession. He must plead that the Respondent fraudulently, knowingly and deliberately stood by while he changed his position. See EZEKWESILI v. AGBAPUONWU supra.
In KAIYAOJA v. EGUNLA (1974) 12 SC Reprint 49, Dan Ibekwe JSC explained the equitable doctrine of laches and acquiescence as follows:
“It is hardly necessary for us to re-state here, the well-known fact that the equitable defences which are popularly known as “laches and acquiescence” derive from the equitable maxim “Delay defeats equities” or equity aids the vigilant and not the indolent. Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “Laches.” But that does not mean that laches consists simply of mere lapse of time. In our view, in order for the defence of “laches” to operate, such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce the claim. In the absence of such circumstances delay will be immaterial.”…..
In KAYODE v. ODUTOLA (2001) 11 NWLR Pt. 725 Pg. 1 at Pg. 36-37, the Supreme Court explained the nature of laches and acquiescence which will deprive a man of his legal rights. The case was referred to and followed by Niki Tobi JSC in OKEREKE v. NWANKWO supra where the Supreme Court held that before a party can avail himself of acquiescence, the following elements must be shown to be present by the Defendant.
(a) That the Defendant was in fact mistaken as to his own rights over the land.
(b) That the Defendant had in reliance as to his mistake expended money on the land.
(c) That the Plaintiff knew of the existence of his own right which is inconsistent with the right claimed by the Defendant over the land.
(d) That the Plaintiff knew of the mistaken belief by the Defendant of his right.
(e) That the Plaintiff encouraged the Defendant in the Defendant’s expenditure of money.
Thus, to successfully maintain the defences of laches and acquiescence, the Defendant/Appellant must prove high degree of acquiescence which amounts to fraud and not mere lapse of time. See CHUKWUMA v. BABATUNDE IFELOYE (2008) 12 SC Pt. 11 Pg. 291. In this case, the Respondent bought the land in dispute according to Exh. P1 since December 1988 and enjoyed possession for fifteen years without let or hindrance till March 2004 when she saw that the Appellant had trespassed on the land. According to the Respondent when she got to the land in March 2004 foundation was being dug there. She filed the action in May 2004. Before she filed the action she had reported the Appellant to the police on the issue. It is quite clear to me that the Respondent did not delay in challenging the Appellant’s claims. Neither did she standby nor trick the Appellant into expending money over the land. Therefore the defences of laches and acquiescence do not avail the Appellant. In the circumstances, the 3rd issue is resolved in favour of the Respondent.
ISSUE FOUR
The 4th issue is whether the findings of the trial court were right in the absence of proper evaluation of the evidence of the Respondent and her witnesses. Appellant’s counsel argued that the trial judge only evaluated the evidence in chief of the Respondent’s witnesses and not their cross-examination. He submitted that the lopsided evaluation of evidence can be corrected by the appellate court. He cited MOGAJI v. ODOFIN (1978) 4 SC 91; NWANKPU v. EWULU (1995) 5 NWLR (Pt. 407) Pg. 269 Ratios 1-3;
NWANKWO v. NWANKWO (1995) NWLR (Pt 394) Pg. 153 Ratio 7.
ADEBAYO v. ADUSEI (2004) 4 NWLR (Pt. 862) Pg. 44; MOGAJI v. CADBURY NIG. LTD. (1985) 2 NWLR (Pt. 7) Pg. 393; ARABAMBI v. ADVANCE BEVERAGE IND. LTD. (2005) 19 NWLR Pt. 959 Pg. 1 Ratio 8 (SC); NWOKORO v. NWOSU (1994) 4 NWLR (Pt. 337) Pg. 172; ADEBAYO v. SHOGO (2005) 7 NWLR Pt. 925 Pg. 467 Ratio 5 (SC).
He submitted that the credibility of the Respondent and her witnesses was successfully challenged under cross-examination and this should have warned the court to be wary of their testimony. He urged this court to set aside the findings of fact by the trial judge as perverse. He cited ADENLE v. OLUDE (2002) 18 NWLR Pt. 799 Pg. 413 Ratios 1 & 2 (SC): DANIEL-KALIO v. DANIEL KALIO (2005) 4 NWLR Pt. 915 Pg. 305 Ratio 3
Learned Appellant’s counsel urged the court to re-evaluate, and set aside perverse findings of fact made by the lower court, which is either not supported by evidence or reached in disregard of adverse evidence or admission extracted under cross-examination. He cited OGBEIDE v. OSULA (2004) 12 NWLR Pt. 889 Pg. 86 Ratio 9; TSOKWA MOTORS LTD. v. UBN LTD. (1996) 9 NWLR Pt. 471 Pg. 129 Ratio 4 (SC).
Learned counsel made heavy weather of the change of name of the Respondent from Gloria Adindu to Gloria Gbaruko; that the Respondent’s signature on Exh.P3 was different from her signatures on her affidavits, that the signature of PW2 on Exh.P1 was different from the signature he offered in open court. Learned Respondent’s counsel replied that in the first instance, the issue of the validity or otherwise of signatures on Exh.P1 being in conflict as to warrant the invocation of S.108 of the Evidence Act never arose in the pleadings of the parties as the Appellant at the trial court did not base his defence on the due execution of Exh.P1 and that such matters raised outside the pleadings go to no issue. He cited OGUNLOWO v. OGUNDARE (1993) 7 NWLR Pt. 307 Pg. 610 at 624. He argued that the issue of the credibility of the Respondent’s witnesses was not pleaded and go to no issue.
Let me start by saying that with regard to the last point made by the Respondent’s counsel, it is with the greatest respect totally misconceived to say that the issue of the credibility of Respondent’s witnesses cannot be considered because such evidence extracted under cross-examination outside the pleadings go to no issue. If evidence is extracted during cross-examination which shows that the witness is a liar, even if the content of the evidence is outside the pleadings and it cannot be utilized by the court to arrive at a finding of fact, such evidence may be considered by the court to determine the credibility of the witness.
The learned trial judge on page 162 of the record held that “the points of signature have no bearing to the central issues.” I have to agree with the learned trial judge on that stand. If the Appellant was insisting that Jacob Nwala who signed Exh.D5 was also the same Jacob Nwala who signed Exh.P1 and the said Jacon Nwala as PW1 denied executing Exh.D5, then the question of who signed what would be an issue. PW1 was called by the Respondent to come and disown Exh.D5 which in my view he successfully did.
The Appellant tried to impugn the credibility of the Respondent’s witnesses on minor facts. However, it appears he was merely grasping at straws. The Respondent at page 134 of the Record explained satisfactorily why her name changed from Gloria Adindu (her maiden name) to Gloria Gbaruko her married name even though she had signed Exh.P1 in her maiden name and took out the action in her maiden name. As regards the signature of PW2 on Exh. P1 being different from what he signed in open court, I have to say that I have read the proceedings on page 127 of the record where PW2 signed his signature in open court. Unfortunately the Appellant’s counsel did not seize the moment. It was at that stage that the witness should have been confronted him with his two conflicting signatures for him to explain the disparity if any. That is when it can be a matter for address and the resolution of the trial judge as to his success or failure in explaining the disparity can be subject of appeal. The fact of conflicting signature cannot be brought out as a hat trick by counsel during address. Furthermore, S.108 of the Evidence Act is inapplicable and the cases of ADENLE v. OLUDE and DANIEL KALIO v. DANIEL KALIO supra are irrelevant. These cases decided that where a witness disputes a signature purported to be his, he can be made to sign and comparisons made by the court between the signatures to decide the genuine one. That is not the case here since PW2 affirmed his execution of Exh.P1.
In any event, I agree with learned Respondent’s counsel that these arguments on this issue by learned Appellant’s counsel are puerile and go to no issue since the pleadings of the Appellant did not indicate that he specifically intended to challenge the due execution of Exh.P1. The Appellant appeared with respect to leave the substance to chase the shadow. This issue is resolved against the Appellant.
I cannot conclude this judgemnt without also echoing what the Respondent’s counsel argued vociferously throught his brief. The learned judge was of the view that the central issue in the determination of the case before him was who has a better title to the disputed land. His Lordship then went to make findings of fact to the effect that the Respodnent proved traditional history her root of title to the land – that is the customary legal right of her donors to the land and due execution of valid documents in proof of the grant to her. Since there is no appeal against those findings by the trial court they stand to her. Since there is no appeal against those findings by the trial court they stand admitted and undisputed. See ILOMA v. IDAKWO (2003) 11 NWLR Pt.830 PG.53 at 83; OKONKWO V. INEC (2004) 1 NWLR Pt.854 Pg.242 at 282.
All the issues as raised by the Appellant having been resolved against him, I dismiss the appeal and affirm the judgment of the lower court. The first order made by the trial court is varied in the exercise of the powers of this court in the following terms:-
1. The plaintiff is entitled to a grant of statutory right of occupancy over a piece or parcel of land consisting of four (4) plots situate and lying at Egbelu Umuatako in Osisioma Ngwa Local Government.
2. I affirm orders 2 and 3 as granted by the trial court.
Appeal Dismissed. N30,000.00 cost to the Respondent against the Appellant.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree
Appearances
J. O. OmotibaFor Appellant
AND
E. C. NwannunuFor Respondent
