MUSTAPHA ARIJE ORS V. ALHAJI W. ARIJE & ANOR
(2010)LCN/3939(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/L/452/2007
RATIO
RULE OF INTERPRETATION OF DOCUMENT: HOW THE WORDS IN A DOCUMENT SHOULD BE INTERPRETED
It is trite that in construction of documents, the words therein should first be given their simple and ordinary meaning and under no circumstance may new or additional words be imported into the text unless the documents would be by the absence of that which is imported impossible to understand. See Solicitor Western Nigeria v. Adebonojo (1971) 1 All N.L.R. 178, Union Bank of Nigeria Ltd. v. Prof. Albert Ozigi (1994) 3 N.W.LR. (pt.333) pg.385 at 400. PER REGINA OBIAGELI NWODO J.C.A.
EVALUATION OF EVIDENCE: WHETHER IT IS PECULIARLY THE FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE VALUE THERETO; INSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE FINDING OF FACT MADE BY THE LOWER COURT
The duty of evaluation, ascription of evidence and finding of fact based on it, is peculiarly the function of the trial court. The attitude of the appellate court towards evaluation and ascription of evidence as to finding of fact is well settled. The appellate court is loathed to disturb the finding of fact by the lower court unless such evidence is perverse or such finding is unsound. However, where the questions does not affect the issue of credibility of witnesses then the Court of Appeal will be in position to evaluate the evidence which had been given in the case because in such cases the matter in dispute is narrowed down to inference that could be drawn from proved facts Ebba v. Ogodo (1984) 1 S.C N.L.R. 372. PER REGINA OBIAGELI NWODO J.C.A.
PLEADINGS: WHETHER FORGERY MUST BE PLEADED WITH PARTICULARS AND PROVED STRICTLY
It is settled law that forgery is a very serious imputation and needs to be pleaded with particulars and proved strictly. Finnih v. Imade (1992) 1 S.C.N.J. 87 at 113. PER REGINA OBIAGELI NWODO J.C.A.
PROOF OF OWNERSHIP: WAYS OF PROVING OWNERSHIP TO LAND
It is now settled law on methods to establish title to land or ownership of land. In Balogun v. Akanji (2005) 3-4 S.C. 95, Oguntade, J.S.C. said: “Now in Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1979) 9/10 S.C. 27, this court per Fatayi-Williams JSC, (as he then was), stated the five methods by which ownership of land may be established under the Nigerian jurisprudence. The methods are: 1. Traditional evidence. 2. Production of documents of title which are duly authenticated. 3. Acts of selling, leasing, renting out all or part of the land or framing on it or on a portion of it. 4. Act of long possession and enjoyment of the land; and 5. Proof of possession of connected or adjacent land incircumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. PER REGINA OBIAGELI NWODO J.C.A.
PROOF OF OWNERSHIP: WHAT THE COURT MUST SATISFY ITSELF WITH BEFORE A TENDERED DOCUMENT WILL BE ADMITTED AS SUFFICIENT PROOF OF OWNERSHIP
Before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that: (a) The document is valid (b) It has been duly executed and registered (c) The grantor has the authority to make the grant and (d) The grantor has in fact what he proposes to grant. See Dabo v. Abdullahi (2005) 7 N.W.L.R. (pt.923) 181 S.C., Romaine v. Romaine (1992) 4 N.W.L.R. (pt.238) 650 S.C. PER REGINA OBIAGELI NWODO J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
MUSTAPHA ARIJE ORS Appellant(s)
AND
ALHAJI W. ARIJE & ANOR Respondent(s)
REGINA OBIAGELI NWODO J.C.A. (Delivering the Leading Judgment): The Plaintiffs commenced an action in the High Court of Lagos State against the Respondents by Originating Summons filed on 9/7/98 seeking four reliefs which reads as follows:
“(1) AN ORDER removing the 1st and 2nd Respondents as Administrators of the Estate of ALHAJI GARUBA ARIJE (DECEASED) and replacing them with the Applicants who are some of the beneficiaries of the deceased estate in respect of LETTERS OF ADMINISTRATION (PHC, 10,025) granted on the 9th day of July, 1977.
(2) AN ORDER directing the 1st and 2nd Respondents to release forthwith to the Applicants all deeds, conveyances, deed of assignment, title deeds and all their documents relating to the real estate of the said ALHAJI GARUBA ARIJE (DECEASED) which are in the custody of the 1st and 2nd Respondents.
(3) AN ORDER directing the 1st and 2nd Respondents to render accounts of all the money received by them in respect of the real Estate of the said deceased since the Letter of Administration were granted to them on the 29th day of July, 1977.
(4) AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances”.
The Respondent reacted by filing counter affidavits. The parties by consensus filed in court terms of part settlement signed by them and their solicitors.
On the 21st September 1999 the learned counsel for the Plaintiff Mr. Kehinde Osibona asked the court to enter Judgment as per the terms of settlement filed. Mr. Sonoiki for the Respondent had no objection to the Application and Judgment was entered as per the part terms of settlement dated 15th September, 1999. On 27 November 2000 the court ordered pleadings based on a motion filed by the Appellant to order pleadings.
Pursuant to that order, the Appellant filed a Statement of Claim followed by an amended Statement of Claim dated 16/4/02 seeking the following reliefs:
“(i) A declaration that property situate at No. 13, Onayade Street, Ikorodu Road, Lagos is owned by ALHAJI GARUBA ARIJE (deceased) to the exclusion of any person (s).
(ii) A declaration that the property situate at Shifawu Street, Surulere and listed as No. 5, in the Letters of Administration belongs to the said deceased.
(iii) AN ORDER of Interlocutory Injunction restraining the 1st Defendant from collecting rents, letting/leasing, disposing or alienating the property situate at No. 13, Onayade Street, Ikorodu Road, Lagos until final determination of this action.
(iv) AN ORDER compelling the Defendants to render a comprehensive Statement of Account of the deceased’s estate. Such account is to be prepared by a Chartered Accountant stating income realized from the deceased’s estate since the 1st Defendant took over management and administration of same.
(v) AN ORDER for possession of property situate at 13, Adebiaye Street, Yaya, Lagos.
(vi) AN ORDER compelling the 1st Defendant to release all the deceased’s personal document’s contained in his brief case kept by the 1st Defendant”.
The Respondent filed a Statement of Defence on 25/1/2001 and later filed a Further Amended Statement of Defence and Counter Claim wherein the 1st Respondent counterclaim against the Appellant as follows:
“(i) A declaration that under and by virtue of the Land Certificate No. 7990 dated 16th October, 1971 registered in the Land Registry, Lagos the 1st Defendant is the registered owner of the property situate at 13, Onayade Street, Igbobi, Lagos.
(ii) An order declaring the purported registration of Alhaji Garuba Arije in the Proprietorship Register of the Land Certificate No. MO 7990 dated 16th October, 1971 in the Land Registry, Lagos is irregular, null and void.
(iii) An order directing the Registrar of Title to delete from the said Proprietorship Register the name of Alhaji Garuba Arije and to replace same with the information contained in No. 2 of the said Proprietorship Register.
(iv) An order of perpetual injunction restraining the Claimants, their agents, servants, privies or otherwise however from interfering or causing to be interfered with the 1st Defendant’s right of ownership in respect of the property situate at 13, Onayade Street, Igbobi, Lagos”.
The Appellant filed replies to the Defence. The learned Trial Judge commenced hearing and at the end of trial parties filed written submissions. In a considered Judgment the learned Trial Judge dismissed the Appellant’s Claim and entered Judgment as per the Counterclaim of the 1st Respondent. The Appellants dissatisfied with the decision of the court below filed the Notice of Appeal on 17/10/01 containing 4 Grounds of Appeal and an additional 2 Grounds of Appeal dated 21 November 2006 and filed 23/11/06.
In line with the practice of this court the parties filed their Briefs of Argument. At the hearing of the Appeal on 15-4-10 learned counsel for the Appellant Mr. N. A. B. Igwebuike adopted the Appellant’s Brief filed 12/9/07 deemed filed and served 24/11/08.
The learned counsel for the Respondent Mr. Kehinde Osibona adopted the 1st Respondent’s Brief of Argument filed 28/11/08.
The Appellant in his Brief of Argument distilled 6 Issues for determination which reads as follows:
“1. Whether in the light of the facts and testimony adduced, the appellants can be held to have no estate to inherit in respect of the property situate at No. 13 Onayade Street, Ikorodu Road, Fadeyi, Lagos.
2. Whether in the light of the facts and Judgment delivered, the Court properly appraised the evidential value of the documents tendered.
3. Whether the 1st respondent was able to prove the allegation of fraud alleged against the deceased.
4. Whether the appellants are not entitled to a grant of possession of the property situate at 13 Adebiaye Street, Yaba.
5. Whether the appellants are not entitled to the claims and Judgment as stated in the pleadings.
6. Whether the respondents are entitled to Judgment on their counter-claim”.
The Respondent distilled One Issue for determination which is:
“Whether upon the facts, pleadings and evidence adduced before the Lower Court, the 1st Respondent is the true and registered owner of the property situate at 13, Onayade Street, Ikorodu Road, Igbobi, Lagos covered by the Land Certificate No. MO 7990 dated 16th October, 1971 registered in the Land Registry, Lagos and therefore entitled to judgment as per his Counter-Claim”.
The Issues formulated in the Appellant’s Brief is more detailed, I will adopt same in consideration of this appeal. In Brief the facts are as follows: The Appellants are some of the children of Alhjaji Garuba Arije (Deceased) and also beneficiaries of his estate. The said deceased died on 15th March, 1977 and was survived by ten children who were minors. Consequently, Alhaji Jimoh Arije and Alhaji Wahab Arije, both junior brothers of the deceased and the original 1st SC 2nd Respondents in the Originating Summons, applied for and obtained the grant of the Letters of Administration from the Probate Registry of the High Court of Lagos State on 29th July, 1977 and thereby became Administrators of the estate of Alhaji Garuba Arije (Deceased); The crux Appellants case in the lower court was that the Administrators did not train the children of the deceased and that they did not render accounts of their stewardship. They also contended that the 1st Respondent herein used his position as an Administrator to appropriate the property at 13, Onayade Street, Ikorodu Road, Igbobi, Lagos to himself; The 1st Respondent, on the other hand, contended that they (as Administrators) trained the children of the deceased and, in fact, sent the 1st & 2nd Appellants overseas for further studies and that they fully administered the personal estate of the Deceased and rendered a true and perfect inventory and account of the real and personal properties of the Deceased in their possession; and The 1st Respondent also contended that the property at 13, Onayade Street, Ikorodu Road, Igbobi, Lagos is owned by him having purchased the same with his money and in his name. The Appellant then proceeded to the High Court.
I will consider Issues 1, 2 & 3 together. It is the submission of Mr. N.A.B Igwebuike the learned counsel that signed the Appellant’s Brief that the property situate at 13 Onayade Street, Lagos duly registered in the name of the deceased at the Lands Registry is the property of the deceased and was listed in the Letters of Administration as belonging to the deceased and registered at the Land Registry. He urged the court to hold this issue in favour of the Appellants as they have an estate to inherit in respect of the property situate at 13 Onayade Street, Ikorodu, Lagos. It is his further submission that where documentary evidence is clear and unambiguous no oral or parol evidence is admissible to contradict or alter it. He relied on the cases of Bunge v. Governor of Rivers State (2006) 6 S.C. 81 at 115, Royal Exchange Assurance Nig. Ltd. & Others v. Aswani iles Industries Ltd. (1991) 2 N.W.L.R. (pt.176) 639, Olanlege v. Afrocontinental Nigeria Ltd. (1996) 7S.C.NJ. 145 at 155.
It is the contention of learned counsel that Exh. ‘A7, ‘C & ‘D’ and the two International Passports tendered were not properly appraised by the lower court before arriving at a decision. It is his further submission that the allegation of a crime must be proved not by preponderance of evidence but beyond reasonable doubt. He contended that there is nowhere in the testimonies of all the witnesses called where it was shown that any fraudulent act or registration was reported at the Lands Registry. He cited cases on burden of prove required in cases of fraud. Jules v. Ajani (1980) 5-7 S.C. 64 at 747 Akpunonu v. Beakart (2007) S.C. (pt.1) 49 at 54, Ikoku v. Oil (1962) 1 All N.L.R. Vol.1 (pt.194), Nwankwere v. Adewunmi (1967) N.M.L.R. 45 at 48 and S1371 & 2 of Evidence Act Cap 62 for the Respondent.
Learned counsel for the Respondent Mr. Kehinde Osibona submitted that any transfer or registration of any interest in land consequent upon a forged disposition would be absolutely void and confers no estate on such a registered owner. He refer to S.61(1) of the Registration of Titles Law of Lagos State. It is his contention that the 1st Respondent has a better knowledge of the issue as he bought the property for himself and the evidence of the Appellants 2 & 3rd witnesses in respect of the transfer of the property were hearsay and therefore inadmissible.
He referred to S.108(1) of the Evidence Act and submits that the signatures of the 1st Respondent on Exhibit ‘H’, ‘R’ and ‘R’ contradict the signatures of the Deed of Transfer Exhibit ‘A’ and that it is settled law that where there was no proper transfer, the registration of the Deceased was void.
Learned counsel referring to S.53(1) of the Registration of Titles Law of Lagos State submitted that the registration of Alhaji Garuba Arije (Deceased) as owner of the disputed property consequent on a forged disposition was absolutely void and conferred no Estate on him and, by extension, the Appellants. He cited cases of Kareem v. Ogunde 1972 A.N.L.R. 75, Adenle v. Olude (2002) 9/10 S.C 124, Wilcox v. Queen (1961) 2 S.C. N.L.R. 296.
It is his further submission that Appellants depended on Exhibit ‘A’ and gave contradicting evidence as to why the land was changed from 1st Respondent’s name to the Appellant’s father’s name and that this contradiction is material and impeached the case of Appellants. He referred to Kaluv. State (1988) 10-11 S.C. 19.
Learned counsel argued that when material averment in a pleading is at variance with the evidence it goes to no issue and the claim must fail and be dismissed by the court. Okhuarobo v. Aigbe (2002) 5 S.C. (pt.414).
He referred to S. 134(1) of Evidence Act which places burden of proof on the Defendant to establish he did not sign Exh. A the transfer form which he has established by exhibits R & R1, that Appellant did not call evidence in proof of the authenticity of Exhibit ‘A’. He referred to Ojibah v, Ojibah (1991) 6 S.C. 182 at 190.
The main crux of this appeal is whether upon the pleadings and evidence adduced before the court below the learned Trial Judge rightly dismissed the Appellant’s Claim and declared that 1st Respondent is the registered owner of the property situate at No. 13 Onayade Street, Igbobi, Lagos State.
The learned Trial Judge after a review of the evidence made the following findings in his Judgment:
“I have compared the signatures admitted by the 1st defendant (DW4) in Exhibits H (affidavit in support), R and R1 with those alleged he signed in Exhibits A, C and D, as required under Section 108(1) of the Evidence Act 1990.
I am satisfied that the alleged signatures and initials in Exhibits A and C are the same as well as the surname in Exhibit D where the initials are different. The signatures admitted as his own by the 1st defendant in Exhibit H, R and R1 are the same. I hold that on the basis if the above findings Exhibits A, C and D have been impeached by the 1st defendant regardless of the evidence of CW1, Olanipekun Cole that there was no report of fraud reported to the Lands Registry as regards registration of title to No. 13, Onayade Street, Ikorodu Road, Lagos State. See Adenie v. Olude (2002) 9-10 S.C 124; Wilcox v. Queen (1961)2 SCNLR 296 per De LESTANG, CJ. Section 28(1) of the Registration of Titles Act requires a registered owner of a property to execute the instrument of transfer of such property, in the instant case Exhibit A, other-wise and the resulting in Exhibit B transfer would be invalid and of no effect; they having been found not to be executed by the 1st defendant”.
In the same judgment the learned Trial judge on page 361 of the Record of Appeal held:
“From the submission of the 1st defendant on the issue of fraud of signature alleged against the deceased, it is very clear beyond argument that he has failed to discharge the burden of proof placed on him by Section 138(1) of the Evidence Act 1990, for, being a criminal offence, the allegation must be strictly proved by the 1st defendant who alleged it. In this particular case, I find that the 1st defendant has failed to prove the offence of fraud alleged against the deceased in respect of Exhibits A and B and I so hold. See Ikoku v. Oil (1988) All NLR 195; OMOHIRHI &C Or Enatevwere (1938) 1 NWLR (Pt.73) 746”.
From the above reproduced findings of the learned Trial Judge the question arising therefrom in the con of this appeal is whether the findings of the learned Trial Judge after comparing the signatures in line with S.108(1) of the Evidence Act is correct and whether having found that no fraud was established the court below rightly proceeded to hold the Appellant did not establish their claim.
The parties all concede that Exhibit ‘E’, Letter of Administration was granted to Alhaji Jimoh Arije and Alhaji Wahab Arije (Deceased) on the 29 of July, 1977 by the Probate Registrar, the third Respondent. This Exhibit ‘E’ was not challenged during trial nor is there evidence of its con in any court. The Letter of Administration Exh. ‘E’ is clear on what the Administrator should do. For purposes of emphasis I reproduce the first page as follows:
“IN THE HIGH COURT OF LAGOS STATE OF NIGERIA LETTERS OF ADMINISTRATION (WITHOUT WILL)
BE IT KNOWN that on the 29th day of July 1977
Letters of Administration of the real and personal property of Alhaji Garuba Arije late of 41, Docemo Street, Lagos deceased, who died on the 15th day of March, 1977 at Lagos Intestate, and who had at the time of his death his fixed place of Should at 41, Decomo Street, Lagos
Within the jurisdiction of this court, were granted by this court to Alhaji Jimoh Arije and Alhaji Wahab Arije both of 41, Docemo Street, Lagos, the deceased’s minor children namely:- Mustapha, Monsuru, Monsuratu, Fatima, Latifatu, Muheenat, Arike, Sikiru, Saheed and Nimota now aged 15, 10, 10, 9, 2, 7, 5, 3, 4 and 4 years respectively for the purpose of administering the Estate of the said deceased for the use and benefit of the said minors until one of them shall attain the age of 21 years, they have been first duly worn”.
In the second page of Exhibit ‘E’, 7 properties are listed as personal and real property of the deceased and I reproduce them:
“(1) Building at No. 12 Mc Cullum Street, Ebute-Metta, Lagos
(2) Building at 13, Adebiaye Street, Yaba, Lagos
(3) Landed Property at Ikeja
(4) Landed Property at Sogunle
(5) Landed Property at Surulere, Lagos
(6) Uncompleted Building at No. 61, Onayade Street, Ikorodu Road, Lagos
(7) Building at 74/76 Okepopo Street, Lagos”
This Exhibit ‘E’ is a document. It is trite that in construction of documents, the words therein should first be given their simple and ordinary meaning and under no circumstance may new or additional words be imported into the unless the documents would be by the absence of that which is imported impossible to understand. See Solicitor Western Nigeria v. Adebonojo (1971) 1 All N.L.R. 178, Union Bank of Nigeria Ltd. v. Prof. Albert Ozigi (1994) 3 N.W.LR. (pt.333) pg.385 at 400.
The property in contest No. 61 Onayade Street, Ikorodu Road, Lagos listed as No. 6 which property is same as No. 13 Onayade Street is listed under Real Property in Exh. ‘E’ and declared as an Asset belonging to Alhaji Garuba Arije (Deceased). The Appellant relied on this document exh. ‘E’ as well as Exhibits ‘A’, ‘B’, ‘C and ‘D’ to seek the declaration of title as regards the property 13 Onayede Street, Ikorodu Road, Fadeyi, Lagos. Part of the compliant of the Appellant in this appeal is that the learned Trial judge did not appraise the documents properly before reaching the judgment entered. The duty of evaluation, ascription of evidence and finding of fact based on it, is peculiarly the function of the trial court. The attitude of the appellate court towards evaluation and ascription of evidence as to finding of fact is well settled. The appellate court is loathed to disturb the finding of fact by the lower court unless such evidence is perverse or such finding is unsound. However, where the questions does not affect the issue of credibility of witnesses then the Court of Appeal will be in position to evaluate the evidence which had been given in the case because in such cases the matter in dispute is narrowed down to inference that could be drawn from proved facts Ebba v. Ogodo (1984) 1 S.C N.L.R. 372.
Therefore, once the question is as regards the proper weight to attach to documents the trial court and the Appellate courts are in the same position. See A.G. Oyo State v. Fairlakes Hotels Limited No. 2 (1982) 5 N.W.L.R. (pt.121). When a finding of fact is made in respect of documentary evidence and it is contradictory or perverse, the appeal court will have to intervene to set aside such finding and make its own finding as may be justified by the evidence. See Atolagbe v. Shorun (1985) 4 S.C. 250 at 285.
The learned Trial judge found that exhibits ‘A’, ‘C’ & ‘D’ have been impeached by the 1st Respondents evidence regardless of the evidence of PW1, the first witness for the Appellant Olanipekun Cole who told the court there was no report of fraud. The lower court however held the Exhibit did not validly transfer any estate to the claimants deceased father having not been executed by the 1st Respondent. Exh. ‘A’ is a document on Transfer of Freehold Land under the Registration of Titles Act. This document is unambiguous. It shows the deed of transfer to Alhaji Garuba Atanda Arije by Abdul Wahabi Iyanda Agbomobini of 19 Docemo Street Lagos in the presence of two witnesses, one Dauda Atamda and Caleb Niyi Oguntunde. None of these witnesses was pleaded nor called to testify on the handwriting issue. The purpose of witnessing the signing of a document is for corroboration of the signatures therein in case of a dispute and the contents. More importantly is the fact that the 1st Respondent in evidence in chief did not tell the court below he has two names, Alhaji Wahab Arije and Alhaji Wahab Iyanda Agbomabini until he was cross-examined on that point.
The signature of Exh. ‘A7 is that of Abdul Wahab Iyanda Agbomabini. This is a different name from the names on the two International Passports – Exh. ‘R’ and ‘R1’ which the learned Trial Judge relied on to compare the signatures therein with the signature on Exh. ‘A’ and ‘C’. The two International Passports bears the name of Alhaji Abdul Wahab Arije not Abdul Wahab Iyanda Agbomabini. In Exh. ‘D’, the Registration document, the signature on exhibit ‘A’ sc ‘C’ are similar and the same person Abdul Wahab Iyanda Agbomabini made the declaration and signed. Exh. ‘D’ contains the name of the original owner of the land. The name of the 1st Respondent Alhaji Wahab Arije in all the processes filed in the court below inclusive of exh. ‘E’, the Letter of Administration and the International Passports exh. ‘R7 and ‘R17 had his name clearly written as Wahab Arije not Wahab Iyanda Agbomabini. Therefore, if the names are not the same as is obvious having not pleaded they are the natural inference is that they are not the same person and the incidental presumption is that the different signatures found by the learned Trial Judge is in respect of two different names. The signature on exh. ‘A’, ‘C’ and ‘D’ are similar with the last name clearly written Agbomabini unlike the 1st Respondent signature which style does not reflect the name.
The learned Trial Judge discounted the evidence of PW1. This witness works in the Land Registry and was subpoenaed to court and he tendered exh. ‘A7. Exhibit ‘B7 the copy of Registrar was tendered through him during cross examination. Exh. ‘B7 on the second page reflects cancellation of the name Abdul Wahab Iyanda Agbomabini and the transfer to Alhaji Garuba Atanda Arije in 1976 which is registered same date.
The witness PW1 had this to say:
“The first registered owner of the property on Exhibit ‘B’ is one Alhaji Abdul Wahab Agbonabini. The name of the first registered owner in exhibit ‘B’ was cancelled as a result of the transfer in Exhibit ‘A’.
By the law of Registration of titles, the registrar will issues notices to the former owner, the present owners and solicitors for them, and whoever presents the documents for registration. A statutory notice of 14 days is given for objection to be raised by any party objecting to registration of such documents.
If the land Registry discovers that e.g. a fraud has been perpetrated or committed on the property Register, that discovery will after the registration of the titles”.
PW1 set out the procedure that leads to registration of titles. Once fraud is not reported in the Registrar the presumption is that the Registration is in order. PW1 in evidence stated that no report of fraud was made in the Registrar.
Exh. ‘P’ is the Temporary Receipt issued by one A. A. Odunsi to Abdul Wahab Iyanda Agbomabini for the purchase of the land at Onayade Street. The name on exhibit ‘D’ is clear. The 1st Respondent having denied the signatures on exh. ‘A’, ‘C, ‘D’, ‘B’ where the same name appeared with a signature failed to satisfactory explain in evidence at the court below his nexus to the name Abdul Wahab Iyanda Agbomabini. Furthermore, this document is explicit as it has an endorsement therein showing Bank of America Cheque No/049365 of 30/1/69 A/C No. 163. No evidence was lead on the import of that cheque and that it was issued by the 1st Respondent rather the evidence lead is that he gave the money to the Deceased on date of purchase. The PW2 gave evidence the property in issue was purchased in the name of the deceased younger brother 1st Respondent. This is not reflected in the Documents before the court. PW3 in evidence told the court that the deceased bought the house in the name of Alhaji Abdul Wahab Agbomabini with a reason which reason he did not state.
Nevertheless, oral evidence cannot surpass documentary evidence on a clear point. The learned Trial Judge on the basis of the uncontradicted documentary evidence tendered in court rightly found the signatures on exh. ‘A’, ‘C & ‘D’ were not the same as the one in Exh. ‘R’ & ‘R1″ but erred when he held that exhibits ‘A’ and ‘B’ were invalid having not been executed by the 1st Defendant (now 1st Respondent). The reason is obvious. The first Respondent bears different name from the name on the Exhibits ‘A’, ‘B’, ‘C’ & ‘D’. The presumption is that the signatures are that of two different persons.
The learned Trial Judge then held that Exh. ‘A’ have not validly transferred any estate to the deceased father of the Appellant because the 1st Respondent denied signing the transfer. The 1st Respondent claimed and testified that the property at No. 13 Onayade Street Ikorodu Road, Lagos belongs to him, it was purchased on his behalf by his late brother Alhaji Garuba Arije (deceased). His further contention is that the late Alhaji Garuba Arije fraudulently represented to the Registry of lands that the property had been sold to him.
Under Issue 3, the 1st Respondent pleaded issue of fraud in paragraph 26, 27 of the further amended Statement of Defence and Counter Claim. These paragraphs reads as follows:
“26. The 1st Defendant avers that unknown to him the Deceased fraudulently represented to the Registry of Lands that the said property situate at 13, Onayade Street, Igbobi, Lagos had been sold to him by the 1st Defendant and the Register was altered to delete the 1st Defendant’s name in place of the Deceased.
Particulars of Fraud
(a) The Registration form was forged
(b) The transfer form was forged
(c) The Registration documents were fraudulently received by the said Alhaji Garuba Arije on behalf of the 1st Defendant.
27. The 1st Defendant states that this fraudulent registration does not have his signature and was not known to him until after the death of the Deceased in 1977 when this was revealsed and the entire family appealed to the 1st Defendant to seek the Deceased Solicitors advice for rectification of the Deeds. The 1st Defendant shall at the trial of the suit rely on the 1st Defendant’s International Passport Nos. 155124 and B144231 respectively”.
It is settled law that forgery is a very serious imputation and needs to be pleaded with particulars and proved strictly. Finnih v. Imade (1992) 1 S.C.N.J. 87 at 113. The prove required is beyond reasonable doubt. Akpunono v. Beakari (2000) 7 S.C. (pt. 1) 49 at 54. The learned Trial Judge rightly found that the 1st Defendant failed to prove the offence of fraud alleged against the deceased in respect of Exhibits ‘A’ & ‘B’. Surprisingly, the learned Trial Judge having found the allegation of fraud was not proved beyond reasonable doubt still proceeded to dismiss the claim of the Appellant. Exhibit ‘A’ is the Deed of Transfer which the 1st Respondent claimed was fraudulently obtained. If he could not establish the allegation of fraud the document exh. ‘A’ & ‘B’ remains intact and unequivocal. Infact Issue 3 formulated by the Appellate should not have arisen because the learned Trial Judge on page 361 clearly stated that the 1st Defendant failed to prove the issue of forgery against the deceased in respect of material documents as to title, Exh. ‘A’ N ‘B’.
In the light of the foregoing, I resolve Issue 1, 2, & 3 in favour of the Appellant. Under Issue 4 & 5 whether the Appellants are not entitled to a grant of possession of the property situate at 13 Adebiaye Street, Yaba and whether the Appellants are not entitled to the claims and Judgment as stated in their pleadings.
Learned counsel for the Appellant submitted that part Judgment was entered by the court below on 21/9/99 and as a result of part settlement reached between the parties, the 1st Respondent was to release all title documents relating to the property situate at 13 Adebiaye Street, Yaba, Lagos to the Appellants. It is counsel’s submission that such consent Judgment being binding on the parties the trial court ought to have held that the Appellants are entitled to a grant of possession of the property situate at 13 Adebiaye Street, Yaba, Lagos for the question has been determined in the consent Judgment.
Looking at pages 71 – 73 of the Record of Appeal it is clear that the learned Trial Judge entered Judgment as per the part terms of settlement entered by the parties. The parties terms of settlement included the release of the title documents of the property situate at No. 13 Adebiaye Street, Yaba, Lagos; this property is listed as part of estate of the Deceased. The title documents in respect of 13 Adebiaye Street having been released to the Appellant based on the consent Judgment the incidental order is grant of possession of the property. Consent Judgment is a Judgment of court based on consensus of the parties. See Auto Supply Ltd. v. Akibu (2006) 6 S.C. 1. Since parties in the agreement did not specifically stipulate the issue of grant of possession. The learned Trial Judge having allowed the agreement of parties by the order in respect of the title documents Judgment should have granted the prayer for grant of possession of 13 Adebiaye Street, Yaba, Lagos. Consequently, I resolve Issue Four in favour of the Appellant.
On whether the Appellants are not entitled to the claims and Judgment as stated in their pleadings, the 1st Respondent did not dispute the fact that letters of Administration was granted to himself or the deceased Alhaji Jimoh Arije on 29 July 1997 as assigned guardians to the 10 minors of the deceased for the purpose of administering the estate of the deceased for the benefit of those minors listed in the letter of Administration until one of them attains the age of 21 years.
The parties in a part terms of settlement which was entered as consent judgment had the title documents released to the Appellant except the property in 13 Onayede Street, Fadeyi. This property in 13 Onayede Street was one of those listed under the estate of the deceased the father of the appellant. The Appellant witnesses testified that the 1st Respondent and the deceased Respondent were appointed administrators of the estate. An Administrator derives his authority from the letters of Administration. This authority is to deal with the estate properly on behalf of the benefactors. The procedure that leads to grant of the letter of Administration involves declarations as to estates. The 1st Respondent cognizance of the implication of listing the property at 13 Onayade Street as part of real and personal properties of the Deceased proceeded to participate in all the usual documentation before the grant, only to subsequently contend it is his property stating the land was purchased for him by his brother, relying on the temporary receipt issued to the brother as proof. It is now settled law on methods to establish title to land or ownership of land. In Balogun v. Akanji (2005) 3-4 S.C. 95, Oguntade, J.S.C. said:
“Now in Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1979) 9/10 S.C. 27, this court per Fatayi-Williams JSC, (as he then was), stated the five methods by which ownership of land may be established under the Nigerian jurisprudence. The methods are:
1. Traditional evidence.
2. Production of documents of title which are duly authenticated.
3. Acts of selling, leasing, renting out all or part of the land or framing on it or on a portion of it.
4. Act of long possession and enjoyment of the land; and
5. Proof of possession of connected or adjacent land incircumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute”.
See also Atanda v. Ajani (1989) 5-6 S.C. Furthermore, the law is that the establishment of one of the five ways is sufficient proof of ownership. See Ayoola v. Odofin (1984) II S.C. 120. The Appellant produced Exhibits ‘A’, ‘B’, ‘C, ‘D’ and Exhibit ‘E’ to prove the ownership of the property by the deceased. It is settled law that the production of a deed of conveyance or document of title or Deed of Transfer does not automatically entitle a party to a claim in declaration. Before the production of document of title is admitted as sufficient proof of ownership the court must satisfy itself that:
(a) The document is valid
(b) It has been duly executed and registered
(c) The grantor has the authority to make the grant and
(d) The grantor has in fact what he proposes to grant.
See Dabo v. Abdullahi (2005) 7 N.W.L.R. (pt.923) 181 S.C., Romaine v. Romaine (1992) 4 N.W.L.R. (pt.238) 650 S.C.
In the instant case both parties do not dispute the validity of the vendor and the property in existence. However, the 1st Respondent failed to establish his contention that the Deceased changed the 1st Respondent’s name to his name fraudulently and proceeded to register same. The Appellant lead evidence with documents tendered before the court to establish title. The burden shifted unto the Respondent to impugn on the validity of the documents. PW1 an official of the Land Registry confirmed there was no report of fraud in respect of the document. In fact after the 1st Respondent claimed he knew about the cancellation in Exh. ‘B’ he still did not lodge a complaint in the Land Registry, he waited until the dispute that lead to the court case. The 1st Respondent participated in the processes that lead to the listing of the property 13 Onayade Street as part of estate of the deceased and did not take any action such as reporting to the Land Registry. His story about the advice of his lawyer not to worry but that he can change it as an Administrator lacks substance. The advice was to convert a property listed in an estate for him to administer as an Administrator to himself. The document Exhibits ‘A’, ‘B’, ‘C’ & ‘D’ are unequivocal on the transaction being between Abdul Wahab Iyanda Agbomabini and the Deceased. The 1st Respondent like I earlier noted did not plead that his name is Abdul Wahab Iyanda Agbomabini.
Parties are bound by their pleadings and a party is required to asset in his pleading the existence of particular facts required to prove such a fact by adducing credible evidence. Once the party fails to do so his case must fail. See S.131(1) and 139 of Evidence Act Laws Cap 112 of Federation of Nigeria 1990.
The 1st Respondent did not establish a vital issue as regard the name or those documents. His response during cross-examination is insufficient when all the documents before the court including his deposition, Exh. ‘G’, Exh. ‘Q’ all described him as Wahab Arije. The Appellants can only be entitled to declaration in respect of evidence and documents tendered before the court. Appellant did not lead evidence in line with the method settled in a catalogue of cases of establishing title to property in respect of property at Shifawa Street, Surulere. It is a fundamental principle of law applicable to declaration of titles to land that plaintiff must satisfy trial court on evidence produced by him and must rely on his own case. See Ohuarobo v. Eghareuba (2002) 5 S.C. (pt) pg. 141. The burden is on the Appellant to establish same. Therefore this Issue 5 succeeds partially.
Under Issue 6 whether the Respondents are entitled to judgment on their counter-claim. It is the submission of the learned counsel for the Appellant that a counter-claim being an independent action, the facts relied upon to sustain it ought to be separated from those relied upon to sustain the defence to the Claimant’s action. He cited U.B.N. Plc v. Jeric (Nig.) Ltd. (1998) 2 N.W.L.R. (pt.536) 63 at 82-83.
It is her submission that the trial court did not properly evaluate the testimony of the 1st Respondent and his other witnesses in arriving at his conclusion and entering Judgment for the 1st Respondent.
A counter-claim may or may not be connected with a Plaintiffs action. Since a counter-claim is a separate action the rules relating to counter-claim and defence are governed by rules relating to Plaintiffs pleading respectively. Therefore, a Defendant’s counter-claim does not automatically succeed as a result of failure of the Plaintiff’s claim and vice versa.
The parties are bound by their pleadings and must lead evidence to support their claim. The 1st Respondent raised the Issue of fraud and forgery and failed to establish same as regards the title document. Having failed to establish the fraud and forgery the learned Trial Judge erred when he entered Judgment for the 1st Respondent as per his counter-claim. The 1st Appellant did not establish title to the property in accordance with any of the methods stipulated by the Appellate courts to have obtained the declaration in his favour.
From the entirety of the documentary evidence before this court this Appeal succeeds in part. The decision of the learned Trial Judge contained in the Judgment of 11 October 2006 granting the reliefs in the counter-claim of the Respondent is hereby set aside. In its stead I enter Judgment for the Plaintiff as follows:
(i) I declare that property situate at No. 13, Onayade Street, Ikorodu Road, Lagos is owned by ALHAJI GARUBA ARIJE (deceased) to the exclusion of any person(s).
(ii) I declare that the property situate at Shifawu Street, Surulere and listed as No. 5, in the Letters of Administration belongs to the said deceased.
(iii) I order the 1st Respondent to render a comprehensive Statement of Account of the Deceased estate prepared by a Chartered Accountant stating income realized from the deceased estate from the period when 1st Respondent took over management and administration of same on appointment in 1977 till 1991.
(iv) I order possession of the property at 13 Adebiaye Street, Yaba, Lagos by the Appellant.
Cost is assessed and awarded in the sum of N30,000.00 in favour of the Appellant.
PAUL ADAMU GALINJE, J.C.A: I have read the judgment just delivered by my learned brother Nwodo, JCA and I agree with the reasoning contained therein and conclusion arrived thereat.
For the same reasons in the lead judgment, which I adopt as mine, this appeal is allowed in part as reflected in the said judgment.
I abide by all the consequential orders in the judgment including order as to cost.
IBRAHIM MOHAMMED MUSA SAULAWA J.C.A:
Appearances
Mr. J. C. Anishere
A. K. Olagoke,
L. I. Ugwu and N. C. OriakuFor Appellant
AND
K . Osibona with Mrs. D. U. OlisaFor Respondent
