NDUBUISI ONWUANYI v. LAWRENCE BORHA
(2013)LCN/6502(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of November, 2013
CA/B/141/2004
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
NDUBUISI ONWUANYI Appellant(s)
AND
LAWRENCE BORHA Respondent(s)
RATIO
PROOF OF IDENTITY OF LAND IN DISPUTE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
Unarguably where the identity of such a land becomes an issue on the pleadings of the parties, the plaintiff must lead evidence and demonstrate with certainty the dimensions and boundaries of the said land to the satisfaction of the court. Where however, the parties are in no doubt about the location and identity of the land and they all know the land, the need to prove the identity of the land by the plaintiff becomes obviated and unnecessary. Raufu Gbadamosi V. Olaitan Dairo (2007) 1 SCNJ 444; Odofin V. Oni (2001) 1 SC (pt. 1) 129 at 136 where the Supreme Court, held that “Of course where both parties are familiar with or know the land in dispute, the question of its identity or certainty will cease to perplex the trial court so also the appellate court and neither party will be allowed to place a cog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties.” PER YAKUBU, J.C.A.
WHETHER OR NOT WHERE FRAUD OR FORGERY IS ALLEGED IN A CIVIL ACTION, IT INPUTS CRIMINALITY AND MUST BE PROVED BEYOND REASONABLE DOUBT
The law is well settled beyond reproach and contention that in civil actions in court, where fraud or forgery is alleged by a party, such an allegation imputs criminality on the part of the other party and the same allegation must be proved beyond reasonable doubt. B.A. Imonikhe v. Unity Bank Plc. (2011) 5 SCNJ 73 at 92; Omodele Ashabi Eya & Ors. V. Akaja Risikatu Olapade & Anor. (2011) 5 SCNJ 98 at 118 – 119. And in any event, such allegations must be particularized by the pleader/accuser. Fabunmi V. Agbe (1985) 1 NWLR (pt. 2) 299 at 319. PER YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The claim at the Edo State High Court of Justice, holden at Benin City, at the instance of the respondent was with respect to land acquisition under Benin Customary land tenure. The respondent in his further amended statement of claim averred that he had applied for a parcel of land measuring 300 feet by 2,000 feet situate at Ward 11/K Isiohor village, through the Ward Plot Allotment Committee, to the Oba of Benin. The said Ward 11/k Plot Allotment Committee recommended his application which was approved by the Oba of Benin in 1971. Furthermore, that the land was conveyed to him by the Oba of Benin vide a deed of conveyance which was registered in the Lands Registry at Benin City. Thereafter, the respondent built an eight (8) room bungalow on the parcel of land. However, the appellant claiming title to the same parcel of land, trespassed into the land and destroyed the respondent’s 8 room bungalow thereon.
He therefore sought for:
(i) A declaration that the plaintiff is the person entitled to a certificate of occupancy of the piece or parcel of land in question;
(ii) N25,000 damages for trespass, malicious damages to his building and seasonal crops planted on the parcel of land;
(iii) Perpetual injunction restraining the defendants, their agents, servants and/or privies from coming on the said land for any purpose whatsoever.
The defendants in their amended Joint Statement of defence averred that the 2nd defendant had transferred the parcel of land to the appellant in 1977. That the said parcel of land measuring 300 feet by 300 feet was granted to him upon the grant of his application by the elders of Isiohor village, headed by the 3rd defendant vide a letter dated 14th May, 1977. He alleged that he was informed by the elders of Isiohor village that they possessed the power to allocate land within their community which is beyond the moat, hence such an allocation needed no approval of the Oba of Benin. The defendant further averred that in 1985, the appellant discovered that a building was being erected up to foundation level which he reported to the police and the builder of the said house was arrested. That still in 1996, the same person started building on appellant’s land again whereupon he directed his caretaker of the land, one Raymond, to dismantle the windows and doors on the said building.
Both parties testified and called witnesses at the trial and tendered in evidence some documents. Learned counsel for the parties addressed the court. The learned trial judge, in a considered judgment, found for the respondent and entered judgment for him as per his claim. This was on 18th July, 1995.
Dissatisfied with the aforesaid judgment, the appellant appealed against it on two grounds of appeal. They complain thus:
1. The learned trial judge erred in law when he entered judgment in favour of the plaintiff as follows:-
(a) That the plaintiff is the rightful person entitled to a Certificate of Occupancy of the piece or parcel of land described in the Oba’s approval and the survey plan No. CS3/126 dated 26th January, 1976 and attached to the conveyance which are exhibited ‘A’ and ‘B’ respectively in these proceedings.
(b) That the defendants shall pay N25,000.00 damages for trespass and malicious damage to building and crops belonging to the plaintiff.
(c) The defendants, their agents, and servants or privies are hereby restrained from trespassing on the said plaintiff’s land more properly and appropriately described in (a) above for any purpose whatsoever.
When the plaintiff did not lead evidence in support of such claims.
The judgment is against the weight of evidence.”
It is noteworthy that with leave of this court sought and obtained, the names of the 2nd and 3rd defendants/appellants were struck out from the appeal, so the 1st defendant became the sole appellant herein. And with the leave of this court obtained on 22nd September, 2008; two additional grounds of appeal were filed by the appellant. They each say, inter alia:
“1. The learned trial judge erred in law when he held that the plaintiff succeeded in his claim against the defendant; when: the plaintiff did not sufficiently identify the land he was claiming in light of the defendant putting the identity of the land in issue.
2. The learned trial judge erred in law when he made a declaration in favour of the plaintiff: when: the plaintiff in his testimony did not ask for any relief.”
In prosecuting the appeal, the appellant, with the leave of the court sought and obtained; on 6th July, 2012 filed the appellant’s amended brief of argument, settled by K.O. Longe, Esq., dated 5th July, 2012. Two issues were formulated in it for determination, to wit:
“1. Did the plaintiff make a good title to the land in dispute according to Benin Customary law of land tenure?
2. Was the plaintiff not obliged to make a dispute survey plan after the defendants put the identity of the land in dispute in issue?”
The respondent’s brief of argument dated 1st August, 2012 and settled by S.O. Ojeme, Esq., was filed on 8th August, 2012 but with leave of court, was deemed filed on 18th April, 2013. Two issues were distilled for determination, inter alia:
“1. What is the mode of acquisition of land under the Benin native law and custom?
2. Whether the parties by their testimonies before the court complied with the said mode of acquisition.”
In my consideration and determination of this appeal, I adopt the two issues formulated for determination by the appellant.
Learned counsel to the appellant arguing issue 1, contended that the respondent did not plead the requirements of Benin customary law on land tenure as set out in Okeaya Vs. Aguebor (1970) 1 All NLR 1 at 8 – 9 where the Supreme Court stated that upon receipt of an application for allocation of a parcel of land, the committee will delegate persons to go and inspect the land in order –
“to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone.”
Learned counsel submitted that the evidence proferred by the respondent is to the effect that the inspection of the parcel of land preceded the application instead of the latter preceding the inspection. And that the evidence by the PW2 that he was the tracer in the committee went to no issue because his name was not pleaded as being one or among the persons who took the respondent to the land in question. He relied on Morohunfola Vs. Kwara Tech. (1990) 4 NWLR (pt. 145) 506 at 526; Emegokwe V. Okadigbo (1973) 4 Sc 113. He insisted that the process of acquiring land under Benin customary law is a material and relevant fact that must be pleaded. He placed reliance on Esso West Africa Inc. V. Oladiti (1968) NWLR 453.
Learned appellant’s counsel furthermore submitted that the holding by the learned trial judge at page 55 lines 26 – 34 of the record of appeal, to the effect that since Exhibit “A” by which the respondent’s application was approved by the Oba of Benin and the appellant’s applications vide Exhibits ‘D’ and ‘E’ did not have the Oba of Benin’s signature thereon, was invalid, was in error. And that “the precious signature of the Oba of Benin alone does not make the application valid or elevate it to the status of what may be called good title.” He relied on Arase V. Arase (1981) 5 SC 33 at 59 where the apex court held that:
“In proving title under Bini customary law, title is not always established merely by production of a document to which the Oba’s approval has been endorsed………….”
Furthermore, that the signature of the Oba of Benin is only a culminating step in the process of acquiring a valid title.
With respect to appellant’s issue 2, learned appellant’s counsel submitted that the first duty of a plaintiff in a land suit is to establish the identity of the land in dispute. He referred to Epi V. Aigbedion (1973) 1 NMLR 33; Elias V. Omobare (1985) 6 SC 150 at 183. And that where the parties are not ad idem on the identity of the land in dispute, a survey plan is necessary. He placed reliance on Makanjuola V. Balogun (1989) 3 NWLR (pt. 107) 192 at 212; Chukwu V. Nneji (1990) 6 NWLR (pt. 156 362 at 379.
The contention of learned appellant’s counsel is that instead of filing a litigation survey plan, the respondent relied on the survey plan attached to his deed of conveyance and that the filing by the appellants of a litigation survey plan admitted in evidence as Exhibit K tantamount to disputing authenticity of Exhibit “B” with its annexture. Furthermore, learned counsel submitted that the evidence proferred at the instance of the 2nd and 3rd defendant is that the respondent was given a smaller parcel of land than what he claimed and it is located in a different area.
The respondent’s learned counsel arguing his own issue 1, submitted that it is trite that all lands in Benin were vested in the Oba of Benin who is the Trustee or legal Owner on behalf of the people of Benin who are beneficiaries thereof. That in Benin City, the Oba had by 1961 approved the establishment of Ward Allotment Committees in respect of the 12 wards into which the city was divided. Therefore any grantee after 1961 must produce the Oba’s approval with respect to a parcel of land granted to him. He relied on Aiwerioba V. Ajayi (1981) (?) NWLR (pt. 70) 325 at 335 – 336; Okeaya Inneh V. Aguebor (1970) 1 All NLR 1 at 8 – 10.
With respect to his issue 2, respondent’s learned counsel submitted that the respondent proferred evidence with respect to the processing of his application vide Exhibit A through the Ward 11/K Isiohor village Plot Allotment Committee, to the Oba of Benin for his approval and that the 2nd and 3rd defendants were members of the said Plot Allotment Committee that recommended Exhibit A to the Oba of Benin for approval, which was so approved by him.
Learned respondent’s counsel submitted that Exhibit ‘B’ – the deed of conveyance has attached to it, the survey plan of the parcel of land granted to the respondent and that the said survey plan clearly identified the land in dispute. He submitted that where the location of a disputed parcel of land is clear and known to the parties, there would be no need for filing a litigation survey plan. He relied on James Ulluba & Ors. V. Oluy E. Sillo & Ors. (1973) All NLR (pt. 1) 71; Akpan V. Otong (1996) 10 NWLR (pt. 4) 76.
Learned respondent’s counsel furthermore, submitted that the respondent with his oral testimony and documentary evidence proved a better title to the parcel of land in dispute. He referred to Evbuomwan & Ors. V. Elema & ors. (1994) 20 LRCN 222 at 257 where Onu, JSC observed that under Benin customary law, where there are competing claims of title to land, the question to be asked is who has made a good title to the land and not who first obtained the Oba’s approval. He relied on Arase V. Arase (1981) 5 SC 33.
Learned counsel contended that under Benin customary land tenure law, the natives and communities in Benin are not legal owners of land and lands cannot be owned until there is a grant of it by the Oba of Benin. He relied on Bello V. Eweka (1981) 1 SC 101.
Learned counsel conceded that it is trite that in a claim of declaration of title to land, the plaintiff must succeed on the strength of his own case and not to rely on the weakness of the defendant’s case. He however submitted that a plaintiff is entitled to take advantage of any evidence proferred by the defence which tends to establish and support the plaintiff’s case. He referred to Josiah Akinola & Anor. V. Fatoyinbo Oluwo & Ors. (1962) All NLR 221.
With respect to the appellant’s contention that the Plot Allotment Committee ought not to have visited and inspected the parcel of land in question, before a formal application was made on it by the respondent vide Exhibit A, learned respondent’s counsel submitted that learned counsel to the appellant’s submission borders on technicalities which the Supreme Court has deprecated. He relied amongst other authorities, that of Evbuomwan & Ors. V. Elema & Ors. (1994) 20LRCN 222 at 254 per Iguh, JSC, where his Lordship stated:
“It seems to me necessary once again to reiterate the fact that our courts have deliberately drifted away from the narrow technical approach to justice which characterized some earlier decisions of court and instead, now pursue the course of substantial justice.”
Hence, according to respondent’s learned counsel, there is nothing essentially wrong with the members of the plot allotment committee who went to show the land in question to the respondent before he made a formal application vide Exhibit ‘A’ and that PW2 who traced and showed the said land to the respondent testified to that effect.
It is the contention of respondent’s learned counsel that the 2nd and 3rd defendants who participated in the recommendation of the respondent’s application vide Exhibit A to the Oba of Benin for approval which was granted, could not have turned round to allocate the same land to the appellant vide Exhibits ‘D’ and ‘E’ which were never sent to the Oba of Benin for his approval.
Now, what is the mode of acquisition of land under Bini native law and custom? The decided authorities on this are not lacking. The starting point seems to me to be that of K.S. Okeaya Inneh V. Madam Ekiomado Aguebor (1970) 1 All NLR 1 at p. 8 – 10 where the eminent jurist and distinguished orator, Sir Udo Udoma, JSC (now of blessed memory) stated thus:
“On the general and important issue as to the mode of acquiring a grant of land under Bini Customary Law, the learned trial Judge, after a careful consideration, accepted the evidence given by Hawdon Omoregbe Uwaifo (P.W.1) which was corroborated by the contents of a booklet, exhibit ‘K’ entitled “Benin Custom and Law regarding Land, Burial Rites and Inheritance” written by Hawdon Omoregbe Uwaifo himself, and found as a fact that it was common ground that among other things:-
a. All lands in Benin Division are vested in the Oba of Benin who is the trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;
b. In respect of Benin City itself, the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;
c. Whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;
d. One of the several functions of a ward plot allotment committee is to recommend plot applications to the Oba of Benin for approval;
e. An applicant for land in Benin City as from 1961 has to direct his application in writing to the ward plot allotment committee of his choice;
f. The ward plot allotment committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their ward and they in turn would report back to the committee on their inspection “the purpose of the inspection” being “to ascertain if it is free from dispute or has not been previously granted to someone”;
g. Upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is “dispute free”, the ward plot allotment committee would endorse the application with above facts and forward it to the Oba of Benin as recommended;
h. The Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;
i. An approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;
j. It is contrary to Benin custom to set aside an approval made in error upon an ex parte application by one of the affected parties.”
Thereafter in Finnih V. Imade (1992) 1 NWLR (pt. 219) 511 at 539, the revered law Lord Nnaemeka-Agu, JSC (now of blessed memory) re-stated the same mode of acquisition of land as it is peculiar in Bini native law and custom, inter alia:
“……… before the promulgation of the Land Use Act, title to land in Benin was provable not from the grant or conveyance of the land by any other person but from the date of the approval of a grant by the Oba of Benin. This is because all lands in Benin Division were vested in the Oba of Benin who was the trustee or legal owner thereof who held it on behalf of all Benin people who were beneficiaries thereof. The whole of Benin City was divided into a number of Wards, each with its Plot Allotment Committee which made recommendations of “trouble free” plots for grant to grantees. The signature of approval of the Oba of Benin of any application recommended by a plot Allotment Committee signified the commencement of the title of the grantee who became a beneficial owner of the plot. See on this; K. S. Okeaya v. Madam Ekiomado Aguebor (1970) 1 All NLR 1 at pp. 8 – 9; Aikhionbare & Ors v. Omoregie & Ors (1976) 12 S.C. 11 and Aigbe v. Edokpolor (1977) 2 S.C. 1″
And more recently, the apex court in Owie V. Ighiwi (2005) 5 NWLR (pt. 917) 184 re-outlined the same procedure for the acquisition of land under Bini customary land tenure to the effect that –
“(a) The Oba of Benin is the only authority competent under Bini Customary Law to make an allocation or a grant of Bini lands in or outside Benin City. Under the law, all Bini lands are communal property of the entire Bini people and the legal estate in such lands is vested and resides in the Oba as trustee for the Benin people.
(b) Application for a piece of land is usually made to the appropriate Plot Allotment Committee having jurisdiction over the land.
(c) Recommendation of the application is then made by the relevant Plot Allotment Committee to the Oba of Benin.
(d) The endorsement of the Oba of his approval on the grantee’s written application, duly recommended by the relevant and appropriate Plot Allotment Committee immediately transfers to the purchaser or grantee of the Plot of Land involved.
(e) An approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of the earlier one.
(f) It is contrary to Bini Customary Law to unilaterally set aside an earlier approval. Therefore to set aside an approval which is admittedly made in error, the two parties affected by the conflicting grants must be present before the Oba at the same time and his decision must be communicated to them after an open hearing at the Oba’s Palace. Such decision must also be communicated to the Ward Allotment Committee from which the two conflicting recommendation had emanated.”
The respondent at paragraphs 3, 4 and 5 of his Further Amended Statement of Claim, pleaded the mode of his acquisition of the parcel of land in dispute. The said paragraphs are reproduced for ease of reference and appreciation. They each say:
“3. On the 3rd August, 1971 the plaintiff applied for a piece or parcel of land measuring 300 feet by 2000 feet lying, situate and being at Ward 11k Isiohor village through the Plot Allotment Committee Ward 11k Isiohor village 1 UDC Benin City to the Oba of Benin, His Highness, Akenzua II, C.M.G.
4. His Highness Akenzua II approved the plaintiff’s application for the said parcel of land on the 23rd day of August, 1971. The document evidencing the Oba’s approval will be relied upon at the trial.
5. The said piece or parcel of land was later conveyed to the plaintiff by His Highness, the Oba of Benin and registered by him as No. 19, at page 19 in volume 439 in the Lands Registry, Benin City. The said conveyance shall be relied upon at the trial. The plaintiff shall lead evidence in proof of the averments herein.”
On their part, the appellant and the 2nd & 3rd defendants with reference to the respondent’s averments above, pleaded at paragraphs 5, 6 and 7 of their Amended Joint Statement of Defence, inter alia:
“5. The 2nd & 3rd defendants in further answer to paragraphs 3 and 4 of the statement of claim aver that the Isiohor village, Ward 11/K, Benin city gave the plaintiff a piece or parcel of land measuring 300 feet by 200 feet in 1971, near the piece of land given to Dr. S.O. Ogbemudia, as required by the plaintiff who was then a commissioner in the Ogbemudia Government and that was in a different area and not in the area he now lays claim to and not 300 feet by 2,000 feet as he now claim.
6. In further answer to paragraphs 3 and 4 of the statement of claim, the defendants will at the trial contend that if the approval of the plaintiff shows 300 feet by 2,000 feet, he must have obtained it by fraud. The defendants will at the trial rely on the plaintiff’s purported approval dated 3rd August, 1971 to show that same was forged. The plaintiff is hereby put on notice to produce the original of the document at the trial.
7. In further answer to paragraph 5 of the statement of claim, the defendant will at the trial contend that the plaintiff could only have used false documents to obtain the Oba of Benin’s signature on his conveyance or that the signature of the Oba on the conveyance and the approval was not obtained according to Bini Custom.”
I have perused the respondent’s testimony at page 21 of the record of appeal and it is clear to me that his application for a parcel of land was in respect of a land measuring 300 feet by 2,000 feet situate at Ward 11/K, Isiohor village. The application dated 3rd August, 1971 was processed through the Ward 11/K Isiohor Plot Allotment Committee to the Oba of Benin and the latter approved it as indicated on Exhibit ‘A’, on 23rd August, 1971. The said Exhibit “A” ex facie shows that the land is situate along the left hand side, coming from Benin City to Isiohor village. The said plot is covered by beacons No. MDC 784 to 793 See page 63 of the record of appeal. The respondent further testified to the fact that the Oba thereafter conveyed the land to him vide a deed of conveyance registered as No. 19 at page 19 in Volume 439 of the Land Registry Office at Benin City and marked Exhibit ‘B’, to which was attached, the survey plan of the land.
The respondent was not cross examined by learned appellant’s counsel to impugn Exhibits ‘A’ and ‘B’. The testimony by the PW2 for the respondent supported the evidence of the respondent.
I am therefore satisfied with the conclusion reached by the learned trial judge that the respondent “sufficiently proved how he acquired the land in dispute in accordance with Bini customary law and I so hold.” See page 50 of the record of appeal. In order words, the acquisition of the respondent’s parcel of land vide Exhibit “A” clearly passed the acid tests as laid down in Okeaya Inneh V. Aguebor (supra); Finnih V. Imade (supra) and Owie V. Ighini (supra).
I am not unmindful of the contention of the learned appellant’s counsel to the effect that the parcel of land in question was inspected by the plot allotment committee before the respondent made a formal application for it to be allocated to him. I am of the same opinion and on the same page with the learned trial judge that in so far as the members of the plot allotment committee inspected the said parcel of land to see if it is “trouble “free” before the committee recommended the respondent’s application to the Oba of Benin for approval, the fact that the said committee inspected the said parcel of land before the respondent formally applied for it, paled into insignificance and of no moment.
I, therefore resolve issue 1 against the appellant.
With respect to issue 2, dealing with the question of the identity of the parcel of land in dispute, unarguably where the identity of such a land becomes an issue on the pleadings of the parties, the plaintiff must lead evidence and demonstrate with certainty the dimensions and boundaries of the said land to the satisfaction of the court. Where however, the parties are in no doubt about the location and identity of the land and they all know the land, the need to prove the identity of the land by the plaintiff becomes obviated and unnecessary. Raufu Gbadamosi V. Olaitan Dairo (2007) 1 SCNJ 444; Odofin V. Oni (2001) 1 SC (pt. 1) 129 at 136 where the Supreme Court, held that –
“Of course where both parties are familiar with or know the land in dispute, the question of its identity or certainty will cease to perplex the trial court so also the appellate court and neither party will be allowed to place a cog in the wheel of justice by mischievously raising the issue of identity in order to becloud what is otherwise a piece of land that is well known to both parties.”
I have considered the submission of learned appellant’s counsel to the effect that the respondent ought to have filed a litigation survey plan apart from the survey plan in respect of the parcel of land in question as contained in the deed of conveyance – Exhibit B which was duly executed between the grantor – the Oba of Benin and the respondent. The said Exhibit B was duly registered in the Lands Registry Benin city. Earlier in this judgment, I held that prima facie, the respondent had on his pleading and testimony at the trial court, established his root of title in accordance with Bini customary land tenure law.
The learned trial judge at page 58 dealing with the question of the identity of the parcel of land in dispute found that:
“The 2nd and 3rd defendants were among members of the committee of Ward 11/K who showed the land in dispute to the plaintiff and recommended same to the Oba for approval.
The 2nd defendant was the person who purported to transfer to the 1st defendant and so in my view the land in dispute claimed a part of the land originally allocated to the plaintiff by the plaintiff is well known to the parties to this suit. The plaintiff in evidence stated that members of the committee showed him the land and one Okonghae Odigie (now late) who was a signatory to Exhibit ‘A’ and one of them a tracer were among them. Under cross- examination the plaintiff said inter alia “some of the members of the committee accompanied me to the site of the land after the pointers had indicated the land to me. The 3rd defendant accompanied me to the land. In my view the plaintiff has sufficiently proved how he acquired the land in dispute in accordance with Bini Customary law and I so hold (please see Exhibits ‘A’ and ‘B’).”
In my considered opinion, the above findings by the learned trial judge are unassailable; hence they cannot be disturbed because they are not perverse. I have myself perused the survey plan attached to Exhibit “B”. It stated therein the location and dimensions of the parcel of land in question. The appellants’ learned counsel, at the trial court, who incidentally is their counsel in this appeal, did not ask any question in the cross-examination of the respondent with respect to Exhibits ‘A’ and ‘B’, at all nor did he challenge and controvert the respondent’s evidence with respect to the role played by 2nd and 3rd defendants, relating to the respondent’s acquisition of the said land and its identity. I am of the considered and firm opinion that in the face of the respondent’s survey plan attached to Exhibit ‘B’ which has not been impugned by the appellant, the respondent needed not to have filed a litigation survey plan. In sum, I resolve issue 2 against the appellant.
Lest I forget, the defendants at paragraphs 6 and 7 of their Joint Amended Statement of Defence, reproduced earlier in this judgment, averred that Exhibit ‘A’ was a forged document. The law is well settled beyond reproach and contention that in civil actions in court, where fraud or forgery is alleged by a party, such an allegation imputs criminality on the part of the other party and the same allegation must be proved beyond reasonable doubt. B.A. Imonikhe v. Unity Bank Plc. (2011) 5 SCNJ 73 at 92; Omodele Ashabi Eya & Ors. V. Akaja Risikatu Olapade & Anor. (2011) 5 SCNJ 98 at 118 – 119. And in any event, such allegations must be particularized by the pleader/accuser. Fabunmi V. Agbe (1985) 1 NWLR (pt. 2) 299 at 319.
Apart from the fact that the aforementioned allegations were not particularized by the defendants/accusers, in their pleadings, there was no attempt to prove the allegations of fraud and forgery against the respondent by them even on balance of probability not to talk of a proof beyond reasonable doubt.
The appellant and 3rd defendant testified at the trial court. The 2nd defendant did not. Neither the appellant nor the 3rd defendant said anything with respect to their averments at paragraphs 6 and 7 of the joint amended statement of defence. In other words, the averments thereof remain bare and bald without any tissue of evidence. The implication is that those averments, without any piece of evidence thereon, would go to no issue and no onus is cast on the other party to disprove the facts not duly established by evidence of the pleader or his witnesses. Abubakar & Anor. V. Joseph & Anor. (2008) 6 SCNJ 226; Ibrahim V. Ojomo & Ors. (2004) 4 NWLR (pt. 862) 89; Midford Edosomwan V. Kenneth Ogbeyfun (1996) 4 SCNJ 21 at 33; Kate enterprises Ltd V. Daewoo Nig. Ltd. (1985) 2 NWLR (pt. 5) 116.
In the circumstances of this case, it seems clear to me that the allegations of fraud and forgery by the appellants against the respondent, is typical of the sarcasm of the pot calling the kettle black! Hence, it is apt to re-echo the opinion of the learned trial judge with respect to the conduct of the 2nd and 3rd defendants, in their transaction with the appellant regarding the respondent’s parcel of land. His Lordship, admirably in his judgment at page 61 of the record of appeal said, inter alia:
“The 2nd and 3rd defendants are the real agents of confusion in this case. In the first place they were members of the Ward 11/k Isiohor village Plot allotment committee who signed and recommended the plaintiff’s application – exhibit ‘A’ to the Oba of Benin for approval. Secondly, they were members of the same committee who also signed and recommended the 1st defendant’s application – exhibit ‘D’ to the Oba of Benin for approval. Thirdly, the 2nd defendant was the person who transferred or purported to transfer part of the plaintiff’s land to the 1st defendant. Fourthly, the 2nd defendant’s application or copies of applications – exhibits ‘E’ and ‘F’ of the same date – 12th December, 1972 (sic) addressed through the Ward 11/K Plot Allotment Committee to the Oba of Benin for approval were never (so it seems to me) forwarded to the Oba of Benin for signature and the portion for the Oba’s signature or approval was unnecessary one wonders why exhibits ‘E’ and ‘F’ should be addressed the way they are with space for the Oba’s approval at the end.
The 2nd and 3rd defendants are agents of confusion as I said supra and ab initio intended to dupe and deceive the 1st defendant and they infact succeeded in doing so. The 2nd and 3rd defendant’s conduct to (bottow (sic) (borrow) from a notorious parlance) bothers on 419 and should be condemned and deprecated in every way.”
I cannot agree any less.
I now draw the curtain on this appeal. The appeal failed on all grounds and the issues canvassed and ventilated by learned counsel to the respective parties. The appeal, is wanting in merits. I, dismiss it accordingly.
The well considered judgment of S.F.E. Akhigbe, J., of 18th July, 1995 on suit No. B/84/86 is hereby affirmed.
Costs of N50,000.00 is awarded to the respondent against the appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the Judgment just delivered by His Lordship, the Hon. Justice T.S. Yakubu, JCA, I concur with the reasoning and conclusion reached therein, to the effect that the present appeal is devoid of merits. Thus, I have no hesitation in dismissing the appeal and affirming the Judgment of the Edo State High Court delivered by S.F.F. Akhigbe, J in Suit No. B/84/86 on 18/7/95.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has dealt extensively with all the issues raised for determination in the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the said judgment. I have nothing to add.
In the circumstance, I too find the appeal to be lacking in merit and dismiss the same. The judgment of the lower court delivered on 18/7/1995 is affirmed.
I also abide by the costs awarded in the lead judgment.
Appearances
Miss J. E. EdosaFor Appellant
AND
Miss S.O. OjemeFor Respondent
