OGUNDIMU & ORS v. AKINYEMI
(2020)LCN/15226(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Monday, March 30, 2020
CA/IB/24/2013
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. ALHAJI SAULA OGUNDIMU 2. CHIEF SADIKU OGUNDIMU 3. CHIEF ELIJAH OLAWIRE 4. CHIEF IDOWU YEKINI AGANRAN (For Themselves And The Entire Ogundimu Akere-Erin [Omolomo] Family) APPELANT(S)
And
AKINOLA AKINYEMI (Substituted For Col. S. K. Akinyemi (Rtd) (Deceased) RESPONDENT(S)
RATIO
WHETHER OR NOT DECLARATYORY RELIEFS CAN BE GRANTED WITHOUT THE PLAINFFF LEADING EVIDENCE
Declaratory reliefs cannot be granted without the plaintiff or claimant leading evidence nor can they be granted on admission by the Defendant. This is because, to succeed, the plaintiff must rely on the strength of his own case, though occasion may arise where the Appellant may take the benefit of evidence by the defence which supports his case, in order to strengthen his claim. On the whole however, the burden of proof in a declaratory action is always on the Claimant. The defendant therefore need not call any evidence save where he has counter-claimed. See Nruamah v. Ebuzoeme (2007) All FWLR (pt.347) at 1442; Adekanmbi v. Jangbon (2007) All FWLR )pt.383) 152 at 160; Patrick S. Okoye & Ors v. Edeami Nwavu & Ors (2003) LPELR – 12330 (CA); Dim v. Enemuo (2009) 10 NWLR (pt.1149) 55 at 394-395; Onwugbufor & Ors v. Okoye & Ors(1996) 1 NWLR (pt.424) 252 and Nwokorobia v. Nwogu & Ors (2009) 10 NWLR (pt.1150) 553. PER TSAMMANI, J.C.A.
WHETHER OR NOT DOCUMENTAY EVIDENCE IS THE BEST EVIDENCE IN THE PROOF OF A CASE
It is settled law that documentary evidence is the best evidence in the proof a case. Once produced, a document is the best proof of its contents. It is in permanent form and hence more reliable than oral evidence and may be used to test the credibility of oral evidence. See CIVIL DESIGN CONSTRUCTION NIG. LTD. SCOA (NIG.) LTD (2007) 6 NWLR (pt. 1030) 300; EZEMBA VS, IBENEME & ANOR (2004) 14 NWLR (pta 894) 617; SKYE BANK PLC & ANOR VS. AKINPELU (2010) 9 NWLR (pt. 1198) 179; OGOLOGO VS. UCHE (1998) 11 NWLR (pt. 572) 34; ATTORNEY GENERAL OF RIVERS STATE VS. ATTORNEY GENERAL OF BAYELSA & ANOR (2013) 3 NWLR (pt. 1340) 123. In BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (pt. 1332) 209 at 236 paras D – E, the Supreme Court per Fabiyi JSC held thus:
“An appellate Court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or vital documents tendered where jettisoned on conclusion arrive at was patently perverse or wrong. See NWOSU VS BOARD OF CUSTOMS & EXCISE (1988) 5 NWLR (pt. 93) 225; NNEJI VS. CHUKWU (1996) 10 NWLR (pt. 378) 265. And where there is conflict in the evidence of witnesses documentary evidence will serve as a hanger on which the truth shall be resolved. Documents tendered as exhibit are very vital as they do not embark on falsehood like some mortal beings. see OLUJINLE VS. ADEAGBO (1988) 2 NWLR (pt. 75) 238”. PER OJO, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of the Ogun State High Court of Justice Ota Judicial Division, delivered on the 13th day of July, 2012 in Suit No: HCT/135/2004.
The Appellants who sued in a representative capacity for themselves and the entire Ogundimu Akere-Erin (Omolomo) Family, claimed against the Respondent who was the Defendant in the Court below, as follows:
(a). An Order setting aside the purported sale, alienation or any transaction (howsoever described) of the Plaintiffs’ land to the defendant by one Taoridi Lawal Ogundimu and the eventual agreement to ratify it by the Plaintiffs.
(b). A declaration that any purported arrangement for the sale or the ratification of the sale of the land in dispute to the defendant by one Taoridi Lawal Ogundimu or any other person is null, void, of no effect and no longer binding on the Plaintiffs, especially having regard to the defendant’s conduct.
(c). A declaration that the Plaintiffs are the persons entitled to the Customary or Statutory Right of Occupancy in respect of the piece or parcel of land situate, lying and being at Akute Fabolude, Iju, Ogun State, and measuring approximately 7.953 acres and which is more particularly described and delineated in Survey Plan No. MOD/6/70B and dated 28/6/76 prepared by M. O. DIYA, Licensed Surveyor.
(d). An Order of Perpetual Injunction restraining the Defendant, his agents, servants and privies from committing or continuing to commit acts of trespass on the land in dispute.
(e). An Order granting possession of the land in dispute to the Plaintiffs.
(f). Damages for trespass.
In response, the Defendant now Respondent, who was Col. S. K. Akinyemi (Rtd) filed an Amended Statement of Defence and Counter-Claim. Same was dated and filed on the 10th day of May, 2006. Therein, the Defendant denied the Plaintiffs/Appellants’ Claim and went further to Counter-Claim as follows:
1. A Declaration that the Defendant is entitled to the Statutory Right of Occupancy in respect of the land comprising 7.9 Acres specifically described on Survey Plan No. BAASS-02A-F/OG/88 dated 13th June, 988 (sic: 1988) drawn by Biodun Akinyemi (Licensed Surveyor), lying, being and situate at No. 1, Olajuwon Akinyemi Street, Mubarak Bus Stop, Ojodu Akute Road, Akute, Ifo Local Government Area of Ogun, State.
2. A Declaration that the Plaintiffs had unlawfully interfered with the use and occupation of the land duly purchased by the Defendant which land is situate, lying and being at No. 1, Olajuwon Akinyemi Street, Mubarak Bus Stop, Ojodu Akute Road, Akute, Ifo Local Government Area of Ogun State of Nigeria and covered by Survey Plan BAASSO2A – F/OG/88 dated 13th June, 1988 drawn by Biodun Akinyemi (Licensed Surveyor).
3. A Declaration that by virtue of the judgment in Suit No. HCC/24/81 delivered on the 28th day of May, 1990, the Fabolude Family, the Dada Aro Family and any other Family within Akute and its environs whatsoever, have been pronounced as Customary Tenants on all the land at Akute and have had their interest in the land including the Defendant’s land forfeited, terminated and extinguished by the decision of the Court in that judgment and therefore have no power to exercise any acts of ownership on the Defendant’s land.
4. A Declaration that by virtue of negotiation entered into by the Plaintiffs in 1993 for the purpose of ratification (re-purchase) with Defendant after the Court’s Judgment of 28th May, 1990 in Suit No: HCL/24/81, the 1st to 4th Plaintiffs, that is Ogundimu Akere Sebi Erin (Omolomo) family of Ota, have forfeited their rights of reversion on the Defendant’s land having been paid the ratification sum of N1,250.000.00 and that their re-entry of the land therefore and the subsequent sale of same to third parties (unknown persons) is illegal, null and void.
5. A Declaration that the Defendant having paid ratification sum of N1,250,000.00 culminating in the execution of a Deed of Assignment dated 5th October, 2001, the said Deed of Assignment is valid, properly executed and good in law.
6. Special damages in the sum of N3,002,872.00 (Three Million, Two Thousand, Eight Hundred and Seventy-Two Naira only) for the destruction of the Defendant’s property on the said land including the removal of beacons, injury done to the topographical design of the land, demolition of the piggery house and rendering useless the designs for roads and drainages.
7. General damages in the sum of N3,000,000.00 (Three Million Naira only) for the damage done by the Plaintiffs to the land, trespass to the land by the Plaintiffs; and the different use to which the Plaintiffs have put the land as against the plan and intention of the Defendant.
8. Perpetual injunction restraining the Plaintiffs’ Ogundimu Family, Fabolude Family and Dada Aro Family respectively and their agents or any person claiming through them from further trespass on the land covered by Survey Plan No: BAAS02A – F/OG/88 of 13th June, 1988, drawn by Surveyor Biodun Akinyemi (Licensed Surveyor) which land is lying, being and situate at No. 1, Olajuwon Akinyemi Street, Mubarak Bus Stop, Ojodu-Akute Road, Ogun State.
9. Cost of this action.
In reply to the Amended Statement of Defence and Counter-Claim, the Plaintiffs/Appellants filed a Reply to the Amended Statement of Defence and Counter-Claim, on the 24/7/2008. With the introduction of the new High Court (Civil Procedure) Rules in 2008, the parties revisited their processes so as to bring them in line with the new High Court Rules of Ogun State. The matter went to Pre-Hearing as required by the new Rules, at the conclusion of which, the matter went to trial. At the trial, the Plaintiffs/Appellants called three witnesses who testified as CW1, CW2 and CW3 respectively. On his part, the Defendant/Respondent called five (5) witnesses who testified as DW1, DW2, DW3, DW4 and DW5 respectively. Several exhibits were tendered by both parties and duly admitted in evidence by the trial Court. Written Address were filed and exchanged by the parties and in a considered judgment delivered on the 13th day of July, 2012, judgment was given to the Defendant. Being dissatisfied with the said decision, the Plaintiffs have approached this Court by way of an appeal.
The Original Notice of Appeal was dated and filed on the 09/10/2012; and it consists of seventeen (17) Grounds of Appeal. The parties then complied with the Rules of this Court by filing their respective Briefs of Arguments. The extant Appellants’ Brief is the Amended Appellants’ Brief of Arguments which was filed on the 18/2/2019. Therein, eight (8) issues were raised for the determination by this Court, as follows:
1. Whether the trial Judge was right to say that she did not believe the evidence of the CW1 when he stated that his family was unaware of the dealings of the defendant with his elder brother Alhaji Taoridi Lawal Ogundimu without stating the grounds for her disbelieve. [Ground 1].
2. Whether the defendant had sufficient notice that Taoridi Lawal Ogundimu was no longer representing the family in view of the contents of Exhibits “DW26”, “DW27” and “DW22” when he purportedly continued to deal with and make payments to Taoridi Lawal Ogundimu for the land in dispute. [Grounds 2, 3 and 4].
3. Whether the learned trial Judge was right to hold that the defendant had paid the purchase price of the land in full after finding as follows:
“Neither of the parties produced before me any exhibit which established their respective position on the actual amount payable. There is no document before the Court which could be regarded as an agreement between the defendant and late Alhaji Taoridi Lawal Ogundimu which showed the amount payable by the defendant as purchase price for the ratification of his title by the Claimant’s family.”
[Grounds 5, 6 and 10].
4. Whether the learned trial Judge ought to have put the burden of establishing an allegation of forgery of Exhibits “CW17” – “CW17B” on the Claimants when they never made any allegation of forgery in respect of those documents. [Ground 7].
5. Whether the learned trial Judge, after expressing her doubts regarding the alleged signature on Exhibits “DW47” – “DW47E” and saying as follows:
“… I shall therefore discountenance the said exhibit in my consideration of the evidence in this case.”
went ahead to hold that the Claimants have failed to prove the allegation of forgery of Exhibits “DW47” – “DW47E” and to further rely on same to hold that the defendant had paid the full purchase price of the land in dispute to the Claimants. [Grounds 8 and 9].
6. Whether the learned trial Judge was right to hold that the Claimants’ case was devoid of merit and dismissing same with costs in view of the evidence before the Court and after saying that Exhibit “DW47” – “DW47E” was unreliable.
7. Whether the trial Judge was right to grant the Counter-Claim of the defendant except reliefs 3, 6, 7 and 8 therein when the defendant did not lead any cogent evidence to warrant the grant of same. [Grounds 12, 14 and 16].
8. Whether the learned trial Judge was right to hold that there was a valid sale of the land in dispute to the defendant in the absence of any cogent evidence to support such a finding. [Grounds 11 and 12].
The Respondent’s Brief of Arguments is the Amended Respondent’s Brief of Arguments dated and filed on the 24/5/18. It would appear that learned counsel for the Respondent adopted but re-couched the issues formulated by the Appellant, as follows:
1. Whether in the light of all evidences (sic) before the Trial Judge, she was not right to state that the evidences (sic) of the CW1 was not believable when the CW1 stated that he was unaware of the dealings of the Defendant with Alhaji Taoridi Lawal Ogundimu having appointed him as the General Secretary and accredited representative of the family in the Ogundimu Family Land transactions with members of the public.
2. Whether Taoridi Lawal Ogundimu ever ceased to be the Ogundimu Family accredited representative in their Family Land transactions until his death in 2003.
3. Whether, in view of all evidences (sic) before the Trial Judge she cannot be right to hold that the defendant had paid the purchase price of the land in full to the Claimants/Appellants.
4. Whether the learned Trial Judge was not right to have stuck to the principle that: he who alleges must prove, and thereby putting the burden of establishing and proving the criminal allegation of forgery of Exhibit “DW46” – “DW47F” against the defendant on the Claimants.
5. Whether the learned Trial Judge was not right, despite expressing her doubts regarding the signature on Exhibit “DW46” – “DW47F” in the consideration of the evidence in this case and to still hold that the defendant had paid the full price of the land in dispute to the Claimants.
6. Whether the learned Trial Judge was wrong to hold that the Claimants’ case was devoid of merit and dismissing same with cost as Exhibit “DW46” – “DW47F” was discountenanced with the final and total evaluation of evidence leading to the dismissal of the case of the Claimants.
7. Whether the learned Trial Judge having found that the Counter-Claim of the defendant succeeded, was wrong in granting reliefs sought by the Defendant except with reasons which were sought reliefs 3, 6, 7 and 8 respectively having been satisfied that the Defendant has led cogent evidences (sic) to prove their Counter-Claim.
8. Whether in the light of all cogent evidences (sic) to support her findings, the learned Trial Judge was wrong to hold that there was a valid sale of the land in dispute to the Defendant.
The Appellants filed an Appellants’ Reply Brief. It was dated the 14/2/2019 but filed on the 18/2/2019.
As I stated earlier, the issues formulated by the Respondent are the same as the issues distilled by the Appellants, only that they are differently couched. In that respect, this appeal shall be determined on the issues raised by the Appellants. However, having carefully perused those issues, I am of the view that issues 1, 2, 3, 6 and 8 shall be determined together. Issues 4 and 5 shall also be determined together while issue 7 shall be considered alone. I shall begin with issues 4 and 5.
Now, on issue 4, learned counsel for the Appellant contended that, Exhibits “CW17A” – “CW17B” are the Report, covering letter and comparative table tendered by the Claimants/Appellants through CW3. That, the learned trial Judge was of the view that the Appellants did not establish the allegation of forgery. Learned Counsel went on to observe that Exhibits “DW47” – “DW47E” is the Deed of Assignment executed by Taoridi Lawal Ogundimu in favour of the Respondent. Furthermore, that Exhibits “CW17A” – “CW17B” was also tendered through CW3 as the Report of the hand writing analyst on the signature of Taoridi Lawal Ogundimu; and same was admitted without objection. That the Respondent did not lead evidence at the trial to impugn or discredit the contents of Exhibits “CW17A” – “CW17B”. It was therefore submitted that, the learned trial Judge might not in the circumstances ignore the document. It was accordingly submitted that, if the learned trial Judge had relied on such expert evidence, and to hold that Exhibits “DW47” – “DW47E” is a forgery, the defence of the Respondent that he had paid Taoridi Lawal Ogundimu the purchase price for the land would have failed.
In response, learned counsel for the Respondent contended that, Exhibits “CW16A” – “CW16J” was the precursor of Exhibits “17A” – “17C”. It was thus submitted that, the Claimants/Appellants had made allegation of forgery which is an allegation of crime. In other words, that the Appellants had made an allegation of forgery of the signature of the signature of Taoridi Lawal Ogundimu in Exhibits “DW47” – “DW47F”. That Exhibit “DW47” – “DW47F” is the Respondent’s Deed of its Assignment executed by the said Alhaji Taoridi Lawal Ogundimu in favour of the Respondent and in the presence of Olusola Esan, a very close associate of the Appellants. It was thus submitted by learned counsel that, where a party alleges that an instrument of title was forged, he has the burden to proof that which he alleges. That an allegation of forgery is an allegation of crime which must be proved beyond reasonable doubt. The cases of Ikoku v. Oli (1962) 1 SC 307 and Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 here cited in support.
Learned Counsel for the Respondent also cited the cases of Koiki v. Magnusson (1999) 5 S.C (pt.II) 30; Anyanwu & Ors v. Uzowuaka & Ors 3 LLAC and Akinkugbe v. Ewulum Ltd 3 LLAC 99 to submit that the present allegation relate to the commission of the crime of fraud and forgery of the signature of the accredited representative of the Ogundimu family by the Respondent in Exhibits “DW47” – “DW47F”, which is the Deed of Assignment executed by the said representative in favour of the Respondent. That in the circumstances, the allegation must be proved beyond reasonable doubt; and that the slightest doubt must be resolved in favour of the Respondent. That in any case, the said exhibit was admitted without any objection and therefore the Appellants cannot now attack same as to its relevance and applicability to the issue under consideration.
Flowing from the above, learned counsel for the Respondent went on to argue that Exhibit “17A” – “17C” (and particularly the Forensic Analysis Report) being a public document ought to have been certified but was not. Secondly, that, the document was tendered through CW3 who is not the maker of it and therefore the document having been admitted through him amounted to hearsay. Thirdly, that the document was tendered by persons who were interested and when proceedings were pending or anticipated. That even though the said exhibits were not used in the total evaluation of the evidence adduced at the trial, it remains the law that, the Forensic Analysis Report should not have been ignored but expunged from the records. The case of Ogidi & Ors v. Egba & Ors (1999) 10 NWLR (pt.621) 42 at 69 was then cited to submit that, a trial Judge has the power to expunge any document wrongly or inadvertently admitted at the trial, from the record. That if Exhibit “CW17” – “CW17E” is expunged from the record, Exhibits “47” – “47F” would remain unchallenged. We were accordingly urged to expunge Exhibit “CW17” – “CW17F” from the records and to hold that, the learned trial Judge was rightly when he held that the Appellants failed to prove their allegation of crime against the Respondent beyond reasonable doubt.
Learned Counsel for the Appellant argued extensively in his reply to the Respondent’s Brief of Arguments on issues 4 and 5. I shall only refer to those points which I consider as appropriate replies on points of law. Thus on issue 4, learned counsel for the Appellant contended that, the Respondent completely missed the point on the issue. That, the real issue is that, the trial Court held that, the Claimants/Appellants did not establish the allegation of forgery beyond reasonable doubt. That, the Appellants did not claim that Exhibit “CW17” – “CW17B” was a forgery. That the allegation of forgery relate to Exhibit “DW47” – “DW47E”. On the issues raised by the Respondent on the admissibility of Exhibits, after responding to the issues relating to the admissibility or otherwise of Exhibits “DW47” – “DW47F”, learned counsel for the Appellant submitted that the Respondent did not appeal against the decision of the lower Court, and thus cannot be heard to complain.
Now, the Appellants had pleaded in paragraph 20 of the Amended Reply to the Amended Statement of Defence as follows:
“20. The Plaintiffs shall contend that the purported agreement dated 5/11/2000 is a forgery and Chief Taoridi Lawal Ogundimu did not execute it.
PARTICULARS OF FRAUD/FORGERY
(a). The signature on the purported deed is not that of Chief Taoridi Lawal Ogundimu.
(b). The family members, including the Plaintiffs are very familiar with the signature of Chief Taoridi Lawal Ogundimu and it is different from the one on the deed.
(c). At the time Chief Taoridi Lawal Ogundimu was said to have executed the agreement, he was already pursuing an action at the High Court against the defendant.
(d). The forgery was done after the death of Chief Taoridi Lawal Ogundimu and backdated to the time before his death since the defendant was not aware of the pending action in Suit No. HCT/209/2001.
(e). Chief Taoridi Lawal Ogundimu’s handwriting is not on any part of the said deed; the Plaintiffs shall rely on the handwriting analyst’s report and other documents written by Chief Taoridi Lawal Ogundimu during his lifetime.”
The above averments no doubt amounted to alleging the commission of crime against the Respondent on the execution of the Deed of Assignment said to have been executed by Chief Taoridi Lawal Ogundimu in favour of the Respondent. It is elementary law that, in any proceeding, whether civil or criminal, where allegation of crime is made, it must be proved beyond reasonable doubt. No doubt, the burden of proving such allegation lies on the person who alleges. See Sections 131(2) and 135 of the Evidence Act, 2011. See also the cases of In Re Otuedon (1995) LPELR – 1506 (SC); Chukwuma v. F.R.N. (2011) LPELR – 863 (SC) andAdigun v. Ibadan North Local Gov’t (2016) LPELR – 41385 (CA).
In that respect, an allegation of fraud or forgery in any proceeding, whether criminal or civil must be proved beyond reasonable doubt. Thus, in the case of Famuroti v. Agbeke (1991) 5 NWLR (pt.189) 1, which is a case similar to the facts of this case, the Supreme Court held that, where the Plaintiff alleged that the thumb impression on the exhibit, the basis of the case was forged, same must be proved beyond reasonable doubt. In the instant case, the Appellants had pleaded and led evidence to the effect that the Deed of Assignment (Exhibit “47” – “47F”) executed by Chief Taoridi Lawal Ogundimu in favour of the Respondent was fraudulently obtained. The learned trial Judge’s finding and conclusion is in pages 647 – 648 of the record of appeal as follows:
“To my mind the allegation of forgery made by the Claimants in this case being criminal in nature must be proved beyond reasonable doubt. The CW3 who tendered Exhibit “CW17” – “CW17B” was not the maker of the document, he stated on oath that the maker was dead but that they worked as a team in arriving at the contents of the report.”
Let me pause here to state that the CW3 was competent to tender the said Exhibits “CW17” – “CW17B” which consist of the documents making the Forensic Analysis Report of the Handwriting of Chief Taoridi Lawal Ogundimu, by virtue of the proviso to Section 83(1)(a) – (b) of the Evidence Act, 2011. That proviso stipulates that as follows:
“Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
In the instant case, the CW3 testified that the maker of Exhibit “CW17” – “CW17B” was dead, and the Respondent did not proffer any contrary evidence. Furthermore, CW3 testified that he worked as a team together with Edward Kolawole (deceased) who signed the Report. He also told the Court that he had personal knowledge of the matters contained in the report, he having participated in working on or examination of the documents presented to them for analysis. Thus, as erroneously alleged by the Respondent, Exhibits “CW17” – “CW17B” tendered by CW3 cannot be hearsay. The learned trial Judge however held at page 648 lines 2 – 17 of the Record of Appeal as follows:
“…It was the contention of the Claimants that Alhaji Taoridi Lawal Ogundimu did not sign Exhibit “CW17” – “CW17B”. Assuming but without conceding that he did, the defendant who tendered the document did not offer any explanation that could make one question the authenticity of the document. In this day when the signature of a living person is sometimes considered irregular, I am of the view that the Claimants have not established the alleged forgery of Exhibit “CW17” – “CW17B” beyond reasonable doubt. The allegation has not been made to a party in the case. Since I am allowed by Section 101(1) of the Evidence Act to compare a disputed signature with the authentic, I have looked at the signature of Alhaji Taoridi Lawal Ogundimu on Exhibits “CW15A” & B, “DW26”, “DW45” & “DW46” being documents tendered in this case by the Claimants and the defendant respectively and signed by the deceased Alhaji Taoridi Lawal Ogundimu and his alleged signature on Exhibits “DW47” – “DW47F”, I also have my doubts on his alleged signature on Exhibit “DW47” – “DW47F. I shall therefore discountenance the said exhibit in my consideration of the evidence in this case.”
It should be noted that, it is the duty of a trial Court to evaluate and ascribe probative weight or value to evidence, both oral and documentary adduced before him. However, when it comes to documentary evidence, an appellate Court is in the same stead as the trial Court in the evaluation of such documentary evidence. This is because, unlike oral evidence, the credibility of witnesses is not involved, since the document speaks for itself. See Union Beverages Ltd v. Pepsi Cola International Ltd & Ors (1994) 3 NWLR (pt.330) 1; Ogbunyiya v. Okudo (1979) 3 LRN 318 and Okafor v. Bende Divisional Union, Jos Branch & Ors (2017) 5 NWLR (pt.1559) 385. In the instant case, the learned trial Judge erroneously referred to Exhibits “17” – “17B” in the determination of the issue of forgery. I believe, that it is an accidental slip on the part of the learned trial Judge, as it was never alleged that Exhibits “CW17” – “CW17B” is a forgery. The learned trial Judge however expressed his doubts on the alleged signature on Exhibit “DW47” – “DW47F, which the Appellants contended was forged; and came to the conclusion that the said Exhibit be discountenanced in the consideration of the totality of the evidence before the Court.
It find it necessary to point out that, the Respondent has contested the admissibility of Exhibit “CW17” – “CW17B” which contains the Deed of Assignment which were tendered through CW3. It should be noted that, the said exhibits were tendered and admitted without objection. Furthermore, the Respondent has not appealed the admissibility of those documents by way of a cross-appeal. In that respect, he has no locus to question the admissibility of those documents in this appeal.
On the whole, I am of the view that, the issues raised by the Appellant on Exhibits “DW47” – “DW47F” is unnecessary as the learned trial Judge expressed his doubt on the authenticity of the signature of Chief Taoridi Lawal Ogundimu on those exhibits. It therefore means that the learned trial Judge was of the view that aside Exhibit “DW47” – “DW47F, there were other evidence which supported the Respondent’s case.
I am however of the view that, the view expressed by the learned trial Judge on Exhibits “DW47” – “DW47F” in view of his findings on the issue was not conclusive. The vital findings of the learned trial Judge on the issue is in lines 11 – 16 of page 648 of the Records which is as follows:
“…, I have looked at the signature of Alhaji Taoridi Lawal Ogundimu on Exhibits “CW15A” & “B”, “DW26”, “DW45” & “DW46” being documents tendered in this case by the Claimants and the defendant respectively and signed by the deceased Alhaji Taoridi Lawal Ogundimu and his alleged signature on Exhibit “DW47” – “DW47F”, I also have my doubts on his alleged signature on Exhibit “DW47” – “DW47F”…”
Having thus found, the learned trial Judge proceeded to discountenance same. I am of the view that, upon the above findings of the learned trial Judge, he should have been courageous enough to conclude that the signature on Exhibit “DW47” – “DW47F” does not prove conclusively that it is that of Alhaji Taoridi Lawal Ogundimu. I am however of the view that, though fraud and forgery was not conclusively proved, the evidence on record did not prove conclusively that Exhibits “DW47” – “DW47F” is genuine. On that note, I am the view that the learned trial Judge was right in discountenancing same in the evaluation of the totality of the evidence adduced at the trial. With its genuineness being in doubt, such document had no evidential value. I now move to issues 1, 2, 3, and 6 which I shall consider together.
Now on issue one, learned counsel for the Appellant contended that, the learned trial Judge did not believe the testimony of the CW1. It was also contended that the learned trial Judge failed to juxtapose or compare the testimony of CW1 to the testimony of the other witnesses or that of the defendant; or even show that the testimony of CW1 is either self-contradictory or that it was discredited under cross-examination. It was thus submitted that, the evidence of CW1, CW2, DW1 and Exhibits “CW8”, “CW10”, “10A”, “10B’ & “10C”, “CW11”, “DW26” and “DW27” show clearly that there was a dispute in the Ogundimu family and Taoreed Lawal Ogundimu (Secretary of the family). That in the circumstances, the finding of the learned trial Judge that she did not believe the evidence of “CW1” that the Ogundimu family was not aware of dealings of Taoridi Lawal Ogundimu is not supported by the evidence.
It was also submitted by learned counsel for the Appellants that, it is the duty of the trial Court to make findings of fact on material evidence adduced before it. The cases of Karibo v. Grend (1992) 3 NWLR (pt.230) 426 at 440; Kalio v. Woluchem (1985) 1 NWLR (pt.4) 610 at 622 and Awote v. Owodunni (No.2) (1987) 2 NWLR (pt.57) 367 were cited in support, and to further submit that, where a trial Court fails to make findings on material and important issues of fact, or approaches the evidence called by the parties wrongly, this Court will have no alternative but to interfere.
Learned Counsel for the Appellant argued as issue two, that, the learned trial Judge failed to take into consideration the fact that Exhibit “DW26” is an unequivocal notice to the defendant that Taoridi Lawal Ogundimu was no longer representing the Ogundimu family in respect of transactions affecting the family land. That Exhibit “DW26” was tendered by the Respondent and that having seen the various publications as evidenced by Exhibits “CW11”, “DW20” and “DW21”, the Respondent was not in a position to claim that he had no sufficient notice that Taoridi Lawal Ogundimu was not acting for the family even as late as October, 2000. Furthermore, that in denying having knowledge of the fact that Taoridi Lawal Ogundimu was no longer representing the Ogundimu family at the material time, despite being in possession of Exhibit “DW26”, the Defendant/Respondent was not telling the truth.
Learned Counsel for the Appellant went on to submit that, the finding of the trial Court that the Respondent did not have sufficient notice that Taoridi Lawal Ogundimu was no longer representing the Ogundimu family cannot be supported by the evidence on the record. That, in reaching his decision, the learned trial Judge failed to properly evaluate the evidence especially Exhibit “DW26” along with other evidence adduced at the trial. The cases of Feooner v. The State (2007) 2 C.M.L.R.113 and Ekpemupolo v. Edremoda (2019) 4 C.M.L.R.29 were then cited to submit that, where the trial Court fails to consider an exhibit placed before it before arriving at a decision, the appellate Court has a duty to interfere.
Learned Counsel for the Appellant referred to the finding of the trial Court to submit that, in arriving at a conclusion that the Respondent had paid the full purchase price for the piece of land in dispute, the learned trial Judge relied on Exhibits “DW41” – “DW41A” and “DW45” which is a letter written by Akin Folarin & Co. to the Defendant/Respondent demanding for the payment of the balance of the purchase price for the land in dispute. That, the Defendant/Respondent did not deny receipt of the said exhibit nor did he contest the contents of the exhibit by other evidence. That, rather, the Respondent pleaded and led evidence to the effect that he had paid the full purchase price for the piece of land agreed upon between him and Taoridi Lawal Ogundimu.
It was further argued by learned counsel for the Appellants that, from Exhibits “DW41” – “DW41A”, the schedule of payment and the time of payment of the sum of N750,000.00 by the Respondent to Taoridi Lawal Ogundimu, is different from that of the N750,000.00 the Respondent claimed to have paid to Taoridi Lawal Ogundimu. Firstly, that the Claimants/Appellants claimed that the first payment was made in 1999 in the sum of N500,000.00 while the Respondent pleaded and led evidence to the effect that he paid the sum of N750,000.00 to Taoridi Ogundimu in the year, 2000. It was then submitted that, the trial Court confused the facts by using the N750,000.00 mentioned by the Claimants in Exhibit “DW41” – “DW41A” to represent the N750,000.00 the Respondent claimed he paid in the year, 2000. That in evaluating Exhibit “DW41” – “DW41A”, the learned trial Judge used a portion which appears to favour the Respondent’s case but failed to rely on the portion which appears to support that of the Appellants.
Learned Counsel for the Appellant went on to submit that, by relying on the portion of Exhibit “DW41” – “DW41A” which favours the Respondent while rejecting the portion of the same Exhibit which favours the Appellant’s case without giving any reason for doing so, the learned trial Judge acted perversely. The case of Tangale Traditional Council v. Alh.Fawu & Anor (2002) FWLR (pt.117) 53 was cited in support. It was therefore submitted that, apart from Exhibit “DW41” – “DW41A”, the Respondent had no other evidence to support his claim that he paid the sum of N750,000.00 to Taoridi Lawal Ogundimu.
On the above premise, learned counsel for the Appellant argued as issue six (6), that the learned trial Judge did not properly evaluate the evidence before him in arriving at the decision that the Claimant’s case was devoid of merit. It was then argued that, the Appellant’s case is that they did not know anything about the transaction between Taoridi Lawal Ogundimu and the Respondent. That Exhibit “DW26” clearly established that the Respondent had been dealing exclusively with the said Taoridi Lawal Ogundimu. Furthermore, that the Respondent did not lead credible evidence to disprove the assertion by the Appellants that Taoridi Lawal Ogundimu had ceased to represent the family before the conclusion of the transaction between him (Respondent) and Taoridi Lawal Ogundimu.
It was further submitted by learned Counsel for the Appellant that, the Appellants’ case that the Respondent did not fully pay the purchase price for the land in dispute was not controverted by the Respondent. That in holding that the Respondent had fully paid the purchase price, the learned trial Judge merely referred to the payment of N10,000.00 in 1993 by virtue of Exhibit “DW46”. That by Exhibit “CW2”, the Respondent had admitted that he owed the balance of the purchase price for the land in dispute as at June, 2000; and that the Respondent did not show any evidence of further payment after June, 2000. It was thus contended that, the only document showing the payment of N500,000.00 by the Respondent in the year, 2000 is Exhibits “47 – 47E” but same has been held by the learned trial Judge that the document cannot be relied upon.
Learned Counsel for the Appellant went on to submit that, in holding that the Appellants’ case is devoid of merit, the Court did not identify any failure on the part of the Appellants’ to prove their case. Citing the case of Kodilinye v. Odu NLLAC 254, learned Counsel contended that, rather than rely on the pleading and evidence led by the Respondent to evaluate the case vis-à-vis that of the Appellants, the learned trial Judge decided to manufacture evidence in support of the Respondent’s case. Furthermore, that the learned trial Judge failed to give proper evaluation or weight to Exhibit “DW26” and its effect to the entire case as presented by the Respondent. We were accordingly urged to resolve all those issues in favour of the Appellants.
In response, learned Counsel for the Respondent, argued as his issue one, that the Appellants’ Ogundimu Akere Sebi-Erin (Omolomo) Family had appointed Alhaji Taoridi Lawal Ogundimu as both-their Secretary–General and Accredited Representative to deal in matters of the family land transactions with members of the public. That members of the public did deal with him in that capacity until his death in the year 2003- as seen in Exhibit “CW11”. That, attempts were made to remove him as the accredited representative failed. That Exhibits “CW8”, “CW9” and “CW10A”, B & C; relied on by the Appellants related to Suit No: HCT/207/2000 in which the Appellants attempted to remove the said Taoridi Lawal Ogundimu. That in any case that Suit was settled out of Court and Alhaji Taoridi Lawal Ogundimu continued as the accredited representative of the family on matters relating to transactions affecting the family land. That Exhibit “DW26” which is a letter dated 16/6/2000 and written by the family to the Respondent demanding payment of an unspecified balance while Exhibit “DW27” is the Respondent’s reply to such letter; and that Exhibit “DW26” did not say that Alhaji Taoridi Lawal Ogundimu had been removed as the accredited representative of the family.
On Exhibit “CW11”, learned Counsel for the Respondent contended that, the said Exhibit which is a “Disclaimer” notice to the public, show that Taoridi Lawal Ogundimu had in fact, been appointed as the General Secretary and accredited representative of the family in matters relating to transactions on the family land. That Taoridi Lawal Ogundimu in reaction to Exhibit “CW11”, published a “Counter-Disclaimer”, which then culminated in Suit No: HCT/207/2000. Furthermore, that the learned trial Judge was right to disbelieve the CW1, because, having acknowledged that Alhaji Taoridi Lawal Ogundimu was the family’s representative he failed to appreciate the facts disclosed in Exhibits “CW8”, “CW9”, “CW10A, B&C that the family’s attempt to remove him proved abortive. We were accordingly urge to hold that the learned trial Judge was right when upon evaluation of the totality of the evidence led by the parties, disbelieved the CW1’s claim that he did not know of the transaction between the Ogundimu Family and Respondent. The cases of Ekpendu v. Erika (1959) 4 FS6 79; Fayeun v. Fadoj (2000) FWLR (pt.7) 1218; Oraetoka v. Malam Ajia & Anor (2006) All FWLR (pt.321) 1312, etc, were cited in support.
Learned Counsel for the Respondent went on to submit that, Exhibit “DW26” conveyed to the Respondent demanding the payment of an unspecified sum of money being balance of purchase price of the land in dispute. It was also contended that, learned counsel for the Appellant emphasized that the Respondent should not have had any dealing with Alhaji Taoridi Lawal Ogundimu because he was aware of the feud in the Ogundimu family. That, the learned trial Judge had held that, the Respondent could not have been concerned with the internal feud within the Ogundimu Family. The cases of Onuoha v. The State (1985) NWLR (pt.548) 118, Woluchem v. Gudi (1981) 5 S.C. 291 and Enang v. Adu (1981) 11-12 S.C.25 were cited in support and to further submit that, the learned trial Judge had creditably evaluated the evidence before coming to the conclusion that, the Respondent not being a member of the Ogundimu Family was not expected to be concerned with the feud in that family.
On issue three (3), Learned counsel for the Respondent submitted that, the learned trial Judge was right when he held that:
“Neither of the parties produced before me any exhibit which established their respective positions on the actual amount payable. There is no document before the Court which could be recorded as an agreement between the Defendant and Alhaji Taoridi Lawal Ogundimu which showed the amount payable by the Defendant as purchase price for the ratification of his title by the Claimant’s family”.
Learned Counsel then contended that, having made the above findings, the learned trial Judge concluded that, the Respondent had fully paid the purchase price of the land in dispute. That Exhibit “CW41” – “CW41A” (sic: “DW41” – “DW41A”) which is a letter from the Appellants Counsel to the Respondent is dated 4/10/2000 while being unaware of the said letter, the Respondent paid the balance of the purchase price of N750,000.00 on the 5/10/2000 and a Deed of Assignment was executed in his favour by Alhaji Taoridi Lawal Ogundimu as the accredited representative and sole signatory to all documents regarding the Ogundimu Family land transactions. It was also contended that Exhibit “DW41” – “DW41A” was received by the Respondent, days after that payment. That after the payment of N750,000.00 and the execution of the Deed of Assignment (Exhibits “DW47” – “DW47F”), no other payment was made by the Respondent.
Learned Counsel for the Respondent went on to submit that, to calculate the amount paid by the Respondent to Alhaji Taoridi Lawal Ogundimu, the learned trial Judge did not rely on Exhibit “CW41- CW41A” but in the evidence as progressively narrated in the pleadings and Exhibits “DW45”, “DW46” and “DW47 – “DW47F”. That if the total sum paid is calculated based on those exhibits, it would give the sum of N1,250,000.00 which is the total amount paid to Alhaji Taoridi Lawal Ogundimu by the Respondent. It was then submitted that, it is not enough for the Appellants to complain of lack of evaluation of evidence, but must go ahead to give particulars and show how such would have affected the decision. The Cases of Abisi v. Ekwealor (1993) 6 NWLR (pt.302) 643; Okolo v. UBN Ltd (1998) 2 NWLR (pt.539) 618; UBN Plc v. Borini Prono Co.Ltd (1998) 4 NWLR (pt.547) 640 and Daku v. Dapal (1998) 10 NWLR (pt.571) 578 were cited in support.
On issue six (6), learned counsel for the Respondent then contended that the learned trial Judge was right in holding that the Appellant’s case was devoid of merit, the Appellants having failed to prove their case. The cases of Archibong v. Ita (1979)3-4 S.C.1; Dada v. Dosunmu 1 LLAC 122; Akinterinwa v. Oladunjoye (2000) FWLR (pt.10) 169; Aromire v. Awoyemi (1972) 1 All NLR (pt.1) 101 and Olohunde v. Adeyoju (2000) 10 NWLR (pt.676) 562 were then cited to submit that, the onus was on the Appellants to establish their claim by pleading and adducing evidence which will entitle them to their claim. It was thus submitted that, the evidence on record show that Alhaji Taoridi Lawal Ogundimu represented the family until his death in 2003 as evidenced by Exhibit “CW11”. Furthermore, that the evidence proved that the Respondent had paid in full, the purchase price for the land in dispute. The cases of Odum v. Chinwo (1978) 6-7 S.C. 251; Clay Industries Ltd v. Aina (1997) 8 NWLR (pt.516) 208 and Adeleke v. Aserifa (1986) 3 NWLR (pt.30) 575 were then cited to submit that, the Appellant’s having failed to prove their claims, the Court was entitled to dismiss their claim. We were accordingly urged to resolve those issues against the Appellant and to dismiss the Appeal.
In reply on points of law, learned Counsel for the Appellant contended that, the Respondent did not lead any evidence to support the claim that all attempts to remove Alhaji Taoridi Lawal Ogundimu failed. Learned Counsel again drew our attention to Exhibit “DW26”. That, the fact that the parties in Suit No: HCT/207/2000 amicably settled their conflict is not sufficient prove that Alhaji Toaridi Ogundimu ceased to occupy the position of accredited representative of the family.
It was also submitted by learned Counsel for the Appellant that, the Respondent agreed that the trial Court relied on Exhibit “DW47” – “DW47F” to arrive at the sum of N1,250,000.00 as the purchase price of the land in dispute, despite holding that he would not rely on that exhibit.
On issue six (6), learned Counsel for the Appellant contended that, the fact that the Respondent was in possession of Exhibit “DW2” and went ahead to tender same in evidence, is clear evidence that the Respondent knew that Alhaji Taoridi Lawal Ogundimu was no more representing the family when he executed Exhibit “DW47” – “DW47F”; and when he received the balance of the purchase price from the Respondent. That, in the circumstances, the claim of the Respondent that Alhaji Taoridi Lawal Ogundimu continued to represent the family till his death, is not supported by the evidence adduced at the trial.
Learned Counsel for the Appellant went on to submit that, contrary to the Respondent’s claim that the Appellants’ claim was dismissed because it lacked merit, the Appellants led cogent and credible evidence to support their case. That in any case, the Respondent’s case supported that of the Appellants to the extent that, the Respondent made the following admissions:
(a) That the Claimants/Appellants are the customary owners of the land in dispute.
(b) That the Claimants/Appellants have a judgment (exhibit “CW1”) in their favour.
(c) That the previous purchases made by the Defendant/Respondent from third parties were invalid.
(d) That Alhaji Taoridi Lawal Ogundimu was no longer representing the family when he signed Exhibit “DW47”–“DW47F”.
(e) That as at June, 2000, the Respondent owed an outstanding balance in respect of his transaction with Alhaji Taoridi Lawal Ogundimu.
On that note, learned counsel for the Appellant urged us to resolve all the issues considered above in favour of the Appellants.
Now, a careful look at the reliefs sought by the Claimants/Appellants would show that the main, principal or substantive reliefs sought are declaratory in nature. See reliefs (b) and (d). Reliefs (a) and (e) are incidental to the grant of reliefs (b) and (c). The law is that, where a party seeks declaratory reliefs he has to adduce concrete and cogent evidence which will satisfy the Court that he is entitled to the relief(s) sought. Declaratory reliefs cannot be granted without the plaintiff or claimant leading evidence nor can they be granted on admission by the Defendant. This is because, to succeed, the plaintiff must rely on the strength of his own case, though occasion may arise where the Appellant may take the benefit of evidence by the defence which supports his case, in order to strengthen his claim. On the whole however, the burden of proof in a declaratory action is always on the Claimant. The defendant therefore need not call any evidence save where he has counter-claimed. See Nruamah v. Ebuzoeme (2007) All FWLR (pt.347) at 1442; Adekanmbi v. Jangbon (2007) All FWLR )pt.383) 152 at 160; Patrick S. Okoye & Ors v. Edeami Nwavu & Ors (2003) LPELR – 12330 (CA); Dim v. Enemuo (2009) 10 NWLR (pt.1149) 55 at 394-395; Onwugbufor & Ors v. Okoye & Ors(1996) 1 NWLR (pt.424) 252 and Nwokorobia v. Nwogu & Ors (2009) 10 NWLR (pt.1150) 553.
From the totality of evidence adduced at the trial, the following facts are not in contention:
(a) That the Claimant/Appellants are the Customary owners of the land in dispute having been so pronounced by the Ogun State High Court of Justice in Suit No: HCL/24/81.
(b) That after the said judgment, the Appellants’ family (the Ogundimu family) posted public Notices on the entire land (which included the land in dispute) covered by the said judgment; informing the public and particularly interested parties of the over-riding interest of the Ogundimu family of Ota.
(c) That persons who had bought land from the Fabolude Family; the Appellants’ opponents in suit No: HCL/24/81 came forward to ratify and validate the sales made to them by the Fabolude Family. The Respondent was one of the persons who had bought the parcel of land from the Fabolude Family.
(d) That the Respondent having been called upon to ratify his purchase of the land in dispute, did come forward but made payments to Alhaji Taoridi Lawal Ogundimu, on the understanding that he was the accredited representative of the Ogundimu family. The Ogundimu Family as represented by the Appellants thus contended that they were not aware of any payment made to Taoridi Lawal Ogundimu.
The facts that generated and led to the dispute subject of this appeal was correctly summarized by the learned trial Judge at page 644 lines 16 – 25 of the record of appeal as follows:
“It was the Claimants’ contention in this case that the money paid to Alhaji Taoridi LawaL Ogundimu by the defendant was paid without the knowledge of the family. The family was however willing to collect the balance from the defendant. The defendant denied the fact that he had a balance to pay the family. He refused to pay any such balance with the contention that he had fully paid the purchase price for his parcel of land. The refusal of the defendant to pay led to the institution of this action with the Claimants’ contention that they were entitled to repudiate their obligation under the purchase agreement, while the defendant counter claimed for title to the land and damages for alleged trespass on the land by the claimants.”
From the above facts as summarized by the learned trial Judge, the only issue which arise for consideration by this Court is; whether the Respondent was right in paying the purchase price as ratified between the parties to Alhaji Taoridi Lawal Ogundimu and whether the full purchase price was paid by the Respondent. In answer to the first problem, the learned trial Judge referred to answers given by CW1 under cross-examination, wherein the said CW1 had stated as follows:
“…there was disagreement between him and Taoreed Lawal Ogundimu; “one of the reasons for the disagreement was that Taoreed Lawal Ogundimu sometimes collects money without the knowledge of the family and issues document…;”
to hold that he did not believe the evidence of CW1 when he stated that his family was unaware of the dealings of the Respondent with Alhaji Taoridi Lawal Ogundimu. On that note, the learned trial Judge went on to hold at page 649 lines 22 – 28 of the record of appeal as follows:
“… in view of my findings above, that the Claimants who by their documents and conduct stated that Alhaji Taoridi Ogundimu was their representative for the purpose of sale of their family land cannot turn around to say that Alhaji Taoridi Lawal Ogundimu sold land to the defendant without their consent. Consequently, the position that family land was sold without the consent of other family members is not applicable in this case and cannot avail the claimants.”
It is not in doubt that the Respondent bought the land from the Fabolude Family who were adjudged in Suit No: HCL/24/81 not to be the owners of the land in dispute. By that decision, the purchase transaction between the Respondent and the Fabolude Family consequentially became voided. It is on that note that the Ogundimu Family invited the Respondent for the ratification of that transaction. Though there is no written document of what was agreed on between the Ogundimu Family and the Respondent, CW3, which is a letter written to Chief Taoridi Lawal Ogundimu by Col. S.K.O. Akinyemi (deceased who was substituted with the present respondent) indicate that the sale transaction was conducted between the Respondent and Alhaji Taoridi Ogundimu. It is however certain from the Public Notice in the Daily Times of Saturday, 30th of November 1991 and National Concord of Tuesday the 14th day of September, 1991, that the Ogundimu Akere-Sebi-Erin Family had presented to the World at large that Taoridi Ogundimu is the accredited representative of the family. Specifically, paragraph 2 of the Public Notice in the Daily Times of Saturday of 30th November, 1991 states as follows:
“Prospective negotiators for purchases and/or assignment of any portion of the said Land are hereby WARNED against dealing with anybody EXCEPT THE SAID FAMILY Through TAORIDI OGUNDIMU at No.18, Akinwumi Street, G.R.A. Otta.”
The Appellants have however argued that the said Taoridi Ogundimu was removed as the representative of the family and Public Notices given thereof. Such Public Notice was tendered in evidence as Exhibit “DW22” which is an undated document but issued under the hand of some of the Ogundimu Family members. However, by Exhibits “DW22A” & “DW22B”, Alhaji Taoridi Lawal Ogundimu as the General Secretary of the Family issued two Public Notices which contradicted Exhibit “DW22”. There is no evidence on record that Exhibits “DW22A” & “DW22B” were controverted. The Minutes of the Ogundimu Akere-Sebi-Erin (Omolomo) Family held on the 16/7/2000 is in evidence as Exhibit “DW24.” The said Meeting was chaired by Pa Taoridi Lawal Ogundimu; and at the said meeting several members of the Family were appointed into various committees of the Family. Taoridi Lawal Ogundimu who chaired the meeting was elected to chair the “Land Purchase Signatories” Committee.
By the above stated documents, it is obvious that there was some conflict within the Ogundimu Family in respect of the position of Taoridi Lawal Ogundimu Family as accredited representative of the Family on land matters. The conflict resulted in Court action against the said Taoridi Lawal Ogundimu but same was settled out of Court. The suit was instituted on the 23/8/2000. However, there is no evidence, oral or documentary which showed the “Terms of Settlement.” In the circumstances, I am of the view that the Respondent was entitled to assume that Exhibits “D21” and “DW2” were still subsisting and valid. He was therefore entitled to relate with Alhaji Taoridi Lawal Ogundimu as the accredited representative of the Ogundimu family.
On the issue of the eight hundred and fifty thousand naira (N850,000.00) claimed by the Appellants as balance of the purchase price for the land in dispute, the learned trial Judge held at page 645 lines 12-32 of the record of appeal as follows:
“While the claimants contended that they were entitled to be paid the sum of N850,000.00 by the defendant as balance of the purchase price, the defendant contended that he had made a total of the sum of N1,250,000.00 as full payment for the land in dispute. Neither of the parties produced before me any exhibit which established their respective position on the actual amount payable. There is no document before the Court which could be regarded as an agreement between the defendant and late Alhaji Taoridi Lawal Ogundimu which showed the amount payable by the defendant as purchase price for the ratification of his title by the claimants’ family. Such that it would be easy to deduct the amount already paid by the defendant and thus arrive at the balance payable if any.
The defendant tendered exhibit “DW45” to show he paid a sum of N500,000.00 to Alhaji Taoridi Lawal Ogundimu. By exhibit “DW41” – “DW41A”, the Claimants’ family acknowledge the receipt of a further sum of N750,000.00 from the defendant on or about the year, 1999. It was the defendant’s contention that the total purchase price for the land in dispute was N1,250.000.00. The total money which got to the Claimants’ family by these documents supports the contention of the defendant on the purchase price. On the balance of probability therefore, I believe the defendant that the purchase price payable for the land in dispute is N1,250,000.00 which sum eventually got into the hands of the claimants’ family through the late Alhaji Taoridi Lawal Ogundimu. This is not to talk of the additional N10,000.00 paid to claimants’ family vide Exhibit “DW46”.
On the totality of both oral and documentary evidence adduced at the trial, this Court has to determine whether the above findings of the trial Court was right. I say so because, the law is that the burden or onus is on the party who alleges. This is so by virtue of Section 131 (1) of the Evidence Act, 2011 which stipulates that:
“131.(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
The Appellants therefore had the burden to prove the purchase price for the land in dispute, the amount paid by the Respondent and the balance which remained to be paid. To do that, the Appellants tendered Exhibit “CW2”, “CW3” and “CW4”. However, apart from making the bare assertion that the Respondent owned the Ogundimu family outstanding balance of the purchase price for the land in dispute, the amount agreed on as the purchase price, the amount paid and the balance remaining were not stated. Exhibits “DW42” – “DW42A” and “DW43” – “DW43A” tendered by the Respondent did not disclosed those facts either. The only document which gave an insight as to those facts is Exhibit “DW41” – “DW41A”. The said Exhibit is a Letter written to the Respondent on the 04/10/2000 by Akin Folarin & Co, Counsel for the Appellants. Therein, the Appellants acknowledged that the Respondent had paid to them the sum of N500,000.00 as the first installment on the 30/8/1999 and another installment of N250,000.00 by their own statement in Exhibit “DW41”, they acknowledged receipt of a total sum of N750,000.00 from the Respondent. They however, claim an outstanding balance of N850,000.00, which when added to the sum of N750,000.00 already paid, it would give a total sum of N1,600,000.00 (which presumably, would be the purchase price for the land in dispute).
The Respondent however, contends that the purchase price agreed upon with Alhaji Taoridi Lawal Ogundimu was N1,250,000.00 which he paid in two installments of N500,000.00 and N750,000.00 respectively. He tendered the Purchase Receipt Exhibit “DW46” as evidence of the payment of N500,000.00. The said sum was received by Taoridi Lawal Ogundimu on the 26/3/93. It is obvious that the sum paid was not a complete payment of the purchase price as can be seen in the communication between Alhaji Taoridi Lawal Ogundimu and the Respondent, as evidenced by Exhibits “DW26” dated the 16/6/2000 and Exhibit “DW27” dated the 26/6/2000. There is however no evidence of the payment of the balance of N750,000.00 as alleged by the Respondent. Surely, if such sum had been paid, it would have been receipted by Alhaji Taoridi Lawal Ogundimu as in the instance of the N500,000.00 paid vide Exhibit “DW46”. See Section 167(c) of the Evidence Act, 2011. Having observed as above, I find it necessary to return to Exhibit “DW41”. The said letter was written by Akin Folarin & Co. of counsel on behalf of the Ogundimu Akere-Sebi-Erin (Omolomo) Family. The address of the clients was given as No.18, Akinwunmi Street, G.R.A, Ota, Ogun State. By the Letter, Col. S.K. Akinyemi (deceased) was instructed to pay the balance of N850,000.00 at “No.18, Akinwunmi Street, G.R.A, Ota, Ogun State”. It is instructive to note that the above address given is the address of Alhaji Taoridi Lawal Ogundimu as evidenced by Exhibit “DW20” (Public Notice Published in the Daily Times of Saturday, the 30th day of November, 1991).
It would be seen therefore, that by Exhibits “DW26” and “DW27”, there was a balance of the purchase price for the land in dispute, which remained to be paid by the Respondent. It should be noted that Exhibits “DW26” and “DW27” were written in June, 2000 prior to the 04/10/2000 when Exhibit “DW41” was written. It is proper to assume from the address given as No.18, Akinwunmi Street, G.R.A, Ota, Ogun State that the said Exhibit “DW41” was written under the direction or the consent of Alhaji Taoridi Lawal Ogundimu. There is however, no evidence that Col. S.K. Akinyemi (deceased) responded to Exhibit “DW41”. It is therefore presumed that the contents of Exhibit “DW41” are true and/or correct. In other words, where a party fails to respond to a business letter which by its nature requires a response, it will amount to an admission if the party does not respond. See Enterprise Bank Ltd v. Meens Nigeria Limited (2014) LPELR – 23503 (CA); Trade Bank Plc v. Chami (2003) 13 NWLR (pt.336) 158 at 219 – 220 and Vaswani v. Johnson (2000) 11 NWLR (pt.679) 582. See also Zenon Pet & Gas v. Idrisiyya Ltd (2006) 8 NWLR (pt.982) 221. On that note, it is safe to presume that the Respondent had no answer to the demands of the Appellants. In other words, the Respondent is deemed to have admitted the amount stated by the Appellants as the balance of the purchase price (i.e. N850,000.00) which remained unpaid.
This now brings us to issue seven (7) which questions the decision of the trial Court which granted the reliefs sought by the Defendant/Respondent save for reliefs 3, 6, 7 and 8. On this issue, learned counsel for the Appellants submitted that, general damages are usually given in claims brought by individuals who have suffered personal harm. The case of UBA Plc v. Samba Petroleum Co. Ltd (2003) FWLR (pt.137) 1199 at 1223 & 1229 was then cited to submit that, in awarding general damages, the motive and conduct of the defendant would be taken into consideration such as when they aggravate the Claimant’s injury. It was submitted that, in awarding the sum of One Million Naira (N1,000,000.00) as general damages, the learned trial Judge failed to take into consideration the above stated legal principles. It was thus submitted that, although general damages is usually presumed by law as the direct natural consequence of the act complained of, the party claiming must proof the nature of such claim. That, there is no credible evidence to warrant the award of the outrageous sum of N1,000,000.00 as general damages.
Learned Counsel for the Appellants then urged us to set aside the sum awarded as general damages because the Respondent failed to discharge the onus of proof cast on him. It was then submitted that a Counter-Claim is a claim on its own which the Counter-Claimant must proof just like in the main claim. We were accordingly urged to set aside the judgment of the Court below and also dismiss the Counter-Claim.
In response, learned counsel for the Respondent contended that the learned trial Judge was right in granting the reliefs sought by the Respondent having found that the Counter-Claim succeeded. That the Courts have overtime laid down the applicable principles for the award of general damages. The cases of Rockonoh PTY v. NITEL Plc (2001) FWLR (pt.87) 885; Odulaja v. Haddad (1973) 1 S.C.357 and Osuji v. Isiocha (1989) 3 NWLR (pt.111) 623 were then cited to submit that, so long as the Defendant/Respondent suffered a disadvantage, loss of use and other use the Appellants put the land into different from what the Defendant intends for the land, the award of damages is in order. That, the learned trial Judge found that the Appellants trespassed on the land in dispute by selling same to third parties; and therefore went on to hold that the Counter-Claim succeeded.
Learned Counsel for the Respondent went on to submit that, general damages are awarded based on the discretionary power of the Court. The case of Narindex Trust Ltd v. N.I.C.M.B. Ltd (2001) FWLR (pt.62) 1987 was cited in support, and to further submit that, in the instant case, the trial Court rightly exercised his discretion judicially and judiciously. That a Counter-Claim is a separate action by itself, which must be proved before the reliefs can be granted. That in the instant case, the learned trial Judge found that the Respondent proved the Counter-Claim before granting the reliefs. We were accordingly urged to resolve this issue against the Appellant.
Now, a perusal of the judgment of the trial Court would show that the learned trial Judge granted some of the reliefs on the Counter-Claim on the premise that the Counter-Claim had succeeded. The decision of the learned trial Judge was centred on the finding of the learned trial Judge at page 651 of the record of appeal as follows:
“I have held (sic) earlier that in accordance with common sense the Claimants who had effectively divested themselves of their interest in the land in dispute, no right naturally vests in them to deal with such land or res any further for, nemo dat quod non habet; meaning that no one can give that which he does not have. Since the Claimants no longer had (sic) the land, having transferred their title to the defendant by purchase any other dealing in the said land by them amounts to trespass and so I hold…”
In other words, the learned trial Judge found that the entry of the Appellants on the land was wrongful and amounted to trespass. However, the learned trial Judge did not accede to the Respondent’s claim for special damages but granted an award of N1,000,000.00 for general damages. The findings and conclusion of the learned trial Judge that the evidence of the Respondent in respect of the purchase of the land in dispute is more believable than that of the Appellants. I have however found in the course of this judgment that the Appellants have been able to prove that the Respondent did not pay the whole of the purchase price. In other words, the Appellants proved on the balance of the evidence on record, that the Respondent failed to pay the sum of eight hundred and fifty thousand naira (N850,000.00) being the balance of the purchase price for the land in dispute as agreed by the parties, when the Respondent’s purchase of the land was ratified by the Ogundimu family. It therefore means that the sale transaction between the Respondent and the Ogundimu family had not crystallized, as the whole purchase price has been found not to have been paid. In other words, title had yet to be passed to the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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On that note, the learned trial Judge erred when he made the Declarations as sought in prayers 1, 2, 4 and 5, and also the consequential reliefs sought in 9, 10 and 11. It is therefore my view which I hold that reliefs 1, 2, 4, 5, 9, 10 and 11 granted on the Counter-Claim were granted in error. This is because the title to the land has been undisputedly found to be in the Appellants’ Ogundimu Family. The whole purchase price having not been paid, the Appellants had the right to enter onto the parcel of land in dispute. On that note I hereby resolve issue seven (7) in favour of the Appellants.
Now, I notice that neither the Appellants nor the Respondent argued issue 8. That issue is therefore deemed abandoned. It is accordingly struck out.
On the whole therefore, it would be seen that issues 1, 2, 4 and 5 have been resolved against the Appellant while issues 3, 6 and 7 have been resolved in favour of the Appellant. This appeal has therefore succeeded in part. Consequently, this appeal is allowed in part. The judgment of the Ogun State High Court delivered on the 13th day of July, 2012 in Suit No: HCT/135/2004 is hereby affirmed in part. It is therefore declared and ordered as follows:
1. That the arrangement or ratification of the sale of the Plaintiffs/Appellants parcel of land lying and being at Akute Fabolude, Iju, Ogun State and measuring approximately 7.953 acres, particularly described and delineated in Survey Plan No: MOD/670B and dated the 28/6/76 drawn by M.O. Diya, Licensed Surveyor is valid and binding on the parties.
2. That the Defendant/Respondent shall pay to the Appellants the sum of Eight Hundred and Fifty Thousand Naira (N850,000.00) being the balance of the purchase price for the land in dispute.
3. That upon the payment of the balance of the purchase price of the land in dispute, the Appellants’ Ogundimu Akere-Sebi-Erin (Omolomo) Family shall execute a Deed of Assignment in favour of the Respondent.
4. That where the Defendant/Respondent fails, refuses, or neglects to pay the balance of the purchase price of the land within three months of the date of this judgment, the sale transaction shall abate and the Plaintiffs/Appellants shall resume ownership and possession of the land in dispute.
5. The parties herein, are to bear their respective costs.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother Haruna Simon Tsammani, JCA, just delivered.
My lord has dealt with the issues in this appeal adequately and I agree with the reasons given therein as well as the conclusion reached.
Having read the record of appeal and the briefs of argument filed and exchanged by the parties, I am also of view that the appeal be allowed in part.
I abide by the consequential orders made in the said lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I had the benefit of reading in draft the lead judgment just delivered by my learned brother HARUNA SIMON TSAMMANI JCA. His Lordship has dealt meticulously and exhaustively with all the issues raised in the appeal.
One of the issues that came up in this appeal is the weight to be attached to documentary evidence. It is settled law that documentary evidence is the best evidence in the proof a case. Once produced, a document is the best proof of its contents. It is in permanent form and hence more reliable than oral evidence and may be used to test the credibility of oral evidence. See CIVIL DESIGN CONSTRUCTION NIG. LTD. SCOA (NIG.) LTD (2007) 6 NWLR (pt. 1030) 300; EZEMBA VS, IBENEME & ANOR (2004) 14 NWLR (pta 894) 617; SKYE BANK PLC & ANOR VS. AKINPELU (2010) 9 NWLR (pt. 1198) 179; OGOLOGO VS. UCHE (1998) 11 NWLR (pt. 572) 34; ATTORNEY GENERAL OF RIVERS STATE VS. ATTORNEY GENERAL OF BAYELSA & ANOR (2013) 3 NWLR (pt. 1340) 123. In BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 18 NWLR (pt. 1332) 209 at 236 paras D – E, the Supreme Court per Fabiyi JSC held thus:
“An appellate Court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or vital documents tendered where jettisoned on conclusion arrive at was patently perverse or wrong. See NWOSU VS BOARD OF CUSTOMS & EXCISE (1988) 5 NWLR (pt. 93) 225; NNEJI VS. CHUKWU (1996) 10 NWLR (pt. 378) 265. And where there is conflict in the evidence of witnesses documentary evidence will serve as a hanger on which the truth shall be resolved. Documents tendered as exhibit are very vital as they do not embark on falsehood like some mortal beings. see OLUJINLE VS. ADEAGBO (1988) 2 NWLR (pt. 75) 238”
In the instant appeal, the Appellants as Claimants at the lower Court claim the Respondent did not pay the full amount of money meant for the ratification of his title to the land in dispute and had an outstanding balance of N850,000.00 to pay. The Respondent on the other hand denied the Claimants claim and stated they had made the full payment of Al 1250/000.00. Exhibit DW41 is a letter of demand written on behalf of the Appellants family by Messrs Akin Folarin & Co. to the original Defendants for the payment of the outstanding balance of N850,000 for ratification of their title Exhibit DW41 is evidence that the deceased Alhaji Taoridi Lawal Ogundimu demanded for payment of the balance of N850,000.00 from the Respondent. There is no evidence on record that this sum was ever paid. In the circumstance it is my view that Exhibit DW41 constitute evidence that the sum of N850,000.00 was outstanding for the ratification of the title of the Respondents.
I agree with my Learned brother that the Respondent is deemed to have admitted the amount stated by the Appellants as the outstanding balance of the purchase price.
For the above and the more detailed reasons given in the lead Judgment I agree that this appeal has merit and it is also allowed by me. I abide by the consequential orders on the said Judgement.
Appearances:
T. Oseni; Esq For Appellant(s)
Julius Adebayo Ajayi Esq; For Respondent(s)
