SANDA v. MRS. OIL (NIG) PLC & ANOR (2020)

SANDA v. MRS. OIL (NIG) PLC & ANOR

(2020)LCN/15275(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/LAG/CV/159/2019

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. BASHIR SANDA (FOR AND ON BEHALF HIMSELF AND CHILDREN OF LATE ALHAJI SANDA) APPELANT(S)

And

1. MRS. OIL NIGERIA PLC 2. REGISTRAR OF TITLES LAGOS STATE LAND REGISTRY RESPONDENT(S)

RATIO

MEANING OF A PERVERSE FINDING

A perverse finding connotes that it was reached contrary to the evidence adduced before the Court; or that the inference drawn by the trial Court is unsupported by evidence or that the decision is so manifestly unreasonable that no reasonable Tribunal could have come to the conclusion reached on the pleadings and evidence before it. A perverse finding is also speculative because it was reached completely outside the evidence before the Court. A judgment is said to be perverse where it paid scanty attention or total disregard to the applicable law. So also a decision will be perverse where the trial Judge misapprehended the facts, or where the Court has drawn wrong inference from the evidence adduced thereby occasioning miscarriage of justice, or where the Judge took into account matters which he ought not have taken into account or where he shut his eyes to the obvious. See Rabiu V. Kano State (1980) LPELR-2936 (SC), Fixity Inv. Ltd V. Gumel (2016) LPELR-41549 (CA), Iwuoha V. NIPOST Ltd & Anor. (2003) LPELR-1569 (SC), Odiba V. Azege (1998) 9 NWLR (pt. 566) 370 and Atolagbe V. Shorun (1985) LPELR-592 (SC). PER ALIYU, J.C.A.

WHETHER OR NOT IT IS EVERY ERROR COMPLAINED OF BY AN APPELLANT THAT WILL AMOUNT TO MISCARRIAGE OF JUSTICE

The law is trite that it is not every error complained of by the Appellant that will amount to miscarriage of justice as rightly argued by the 1st Respondent’s learned counsel. Such error must be shown and established to substantially affect the outcome of the decision. See Olonade & Anor. V. Sowemimo & Anor. (2014) 5 S. C. (pt. II) 97, Stirling Civil Engineering Nig. Ltd V. Yahaya (2005) LPELR-3118 and Mobil Producing Nig. UnLtd V. Johnson & Ors. (supra). PER ALIYU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT HAS THE RIGHT TO EVALUATE A DOCUMENTARY EVIDENCE

It is clear that this case was fought by the parties on documentary evidence and happily, this Court as an appellate Court is in as good a position as the trial Court to evaluate the documents admitted as exhibits in order to determine the complaints of the Appellant. See Iwuoha & Anor. V. NIPOST Ltd & Anor. (supra), where Tobi, JSC enunciated the principle of law at page 29, B-D thus:
…evaluation of a document is not within the exclusive preserve of the trial Judge. Both the trial judge and the appellate judge have equal right to evaluate a documentary evidence. This is because, unlike oral evidence which an appellate judge does not see, he sees like the trial judge, the document as exhibit. Therefore, where the finding of a trial judge on documentary evidence is perverse, an appellate judge will easily see the perversion, and employ his appellate power to correct it.
See also Emeka V. Okoroafor (2017) 11 NWLR (pt. 1577) 410, Union Beverages Ltd V. Pepsicola Int’l Ltd &Ors. (1994) LPELR-3397 (SC) and Olomoda V. Mustapha (2019) 6 NWLR (pt. 1667) 36. PER ALIYU, J.C.A.

THE BURDEN OF PROOF ON A PLAINTIFF SEEKING A DECLARATION OF TITLE TO LAND

In the case of Wachukwu & Anor. V. Owunwanne & Anor. (2011) LPELR-3466, the Apex Court, per Muhammad JSC held that:
Now, the age-long established principle of law in relation to burden of proof on a plaintiff seeking a declaration of title to land is for him to establish his case on preponderance of evidence by setting up a prima facie case whereupon the trial Court examines the evidence put forward by both parties and weigh same on the imaginary scale with a view to making a finding as to which side preponderates….
See also Ezinwa & Anor. V. Agu & Anor. (2003) LPELR-7238 (CA), Ufomba & Anor. V. Ahuchaogu & Ors (2003) LPELR-3312 (SC) and Ilori & Ors. V. Ishola & Anor. (2018) LPELR-44063 (SC). PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Lagos State High Court, Ikeja judicial division (trial Court), delivered on the 10th April, 2018 by Hon. Justice O. O. Oke, (C. J.) in respect of Suit No: M/144/2010. The Appellant was the Claimant and his claims against the 1st and 2nd Respondents (being the 1st and 2nd defendants) are as per his Amended Statement of Claim No. 3, located at pages 1193 to 1200 of Volume 2 of the record of appeal, reproduced below:
1. A declaration that the leasehold interest under Title No. LO 5227 is extant, and on the demise of Alhaji Sanda, devolves in common on the Claimant and his siblings namely, (1) Dr. Umar Sanda (2) Alhaja Taiwo Sanda (3) Kehinde Sanda.
2. A declaration that the certificate of occupancy dated the 1st day of January, 1979 and registered as No. 85 at page 85 in Vol. 1860 of the Registry of Deeds kept at Lagos lands Registry is null and void and of no effect whatsoever as the same was based on forged document to wit; a deed of assignment that the late Alhaji Sanda never executed in the life time of the existing Title LO 5227.

3. An order mandating the 2nd Defendant to expunge from its record the Certificate of Occupancy dated the 1st day of January, 1979 and registered as No. 85 in Volume 1860 of the Lands Registry Office Alausa.
4. An order on the 1st Defendant to return to the Claimant forthwith the original of Land Certificate No. LO5227 deposited with it by the registered title holder- (the late Alhaji Sanda) on the creation of the equitable Mortgage.
5. The sum of N5Billion as damages and compensation against the 1st Defendant for depriving the Claimant and his siblings (who are beneficiaries) their benefits and rights over the estate of their late father Alhaji Sanda and for the use and occupation of the land in dispute since 1968 to the date of judgment.
6. An Order on the 2nd Defendant to expunge from its record the caution on Title NO. LO5227 entered thereon by the 1st Defendant.
7. An Order on the 1st Defendant to render a full, detailed and up to date account of the operation of the Franchise operated on the land in dispute since 1968 and payment over to the Claimant of all such profits/monies collected by the 1st Defendant and its predecessors.

8. Compound interest thereon at the rates of 15% from 1968 to 2000 and from 2000 to the date of Judgment respectively.
9. Interest on the said sum of N5Billion Naira at the rate of 24% commencing from November 1970 to the date of judgment.
10. The cost of prosecuting this Suit (Ten Million Naira).
11. Further Order/Orders as this Honorable Court may deem fit to make in the circumstance.

The 1st Respondent denied the claims of the Appellant as per its further amended statement of defence filed on the 21st November, 2014 contained in pages 1007-1010, Volume 2 of the record of appeal. By its said pleadings, the 1st Respondent asserted that the late father of the Appellant sold his interest in the land in issue to its predecessor in title, TEXACO Africa Limited, since 2nd March 1967 and the assignment was perfected through issuance to it of a Certificate of Occupancy on the land by the Lagos State Government on January, 1st 1979.

The 2nd Respondent also denied the claims of the Appellant before the trial Court as per its Statement of Defence filed on the 24th May, 2012 contained in pages 478 to 480 of Volume 1 of the record of appeal. It posited that the application of the 1st Respondent’s predecessor for issuance of a certificate of occupancy in respect of the land in dispute was duly published in the newspaper for any interested member of the public to raise any objection. That in the absence of any objection raised for the issuance of the certificate of occupancy to the 1st Respondent, it complied with all the laid down rules before issuing Certificate of Occupancy No. 85, page 85 in Volume 1860 dated 1st January, 1979 to the 1st Respondent.

During the trial, the Appellant testified as CW1 and tendered documents including the CTC of the Title to the land in issue registered as No. LO5227 and the death certificate of his late father. He did not call any other witness. The 1st Respondent called one witness, its solicitor who testified in defence of the suit as DW1 through whom the 1st Respondent tendered several documents including the equitable mortgage, power of attorney and deed of assignment executed in its favour by the Appellant’s late father on the land since 1967.

At the conclusion of the trial, the learned trial Chief Judge delivered the Court’s judgment to the conclusive effect that: “Having considered the Claimant’s testimonial evidence side by side with the documentary evidence tendered in proof of his case, I hold that the Claimant failed to prove that the 1st Defendant never executed the Deed of Assignment in the lifetime of Title LO5227 and this indeed is the bedrock on which every other claim rests. That being said, on the basis of the evidence adduced before the Court, the Claimant has obviously not succeeded in discharging the onus probandi cast upon him by law and this case necessarily crumbles like a pack of cards. All the issues for determination are resolved against the Claimant and his case is hereby dismissed accordingly.”

Aggrieved with the dismissal of his case, the Appellant filed his notice of appeal on the 25th April, 2018 relying on seven (7) grounds of appeal. The Record of appeal was transmitted to this Court on the 8th February, 2019 out of time but it was deemed properly transmitted on the 18th March, 2019 by the order of the Court made on that date. The Appellant’s brief of argument was settled by Olawale Okunola Esq., of C. O. I. Joseph’s Law Chambers, and filed on the 30th April, 2019 in which he raised two issues for determination from the seven grounds of appeal thus:
1. Whether the judgment of the High Court is perverse. Distilled from all the grounds of appeal except ground 7.
2. Whether or not the Appellant was accorded fair hearing before the High Court- Ground 7.

The Amended 1st Respondent’s brief of argument, settled by Temitope J. Odesola Esq., was filed on the 9th March, 2010, but deemed properly filed and served on the 10th March, 2020. The said brief spanned 33 pages by which the 1st Respondent raised objection to the competence of the Appellant’s notice of appeal and issues for determination he distilled therefrom. The argument in support of the preliminary objection is incorporated in pages 6 to 7 of 1st Respondent’s brief. In the event however that the preliminary objection does not succeed, the 1st Respondent distilled and proposed the following six (6) issues for the determination of appeal:
1. Whether having found that the Appellant failed to prove the commission of any fraud, by way of forgery of the signature of Alhaji Sanda on documents tendered by the 1st Respondent, the learned Trial Judge ought not to have proceeded to also find that the suit was thereby statute barred by virtue of the provisions of Section 1(1) and (2) of the Limitation Law of Lagos State Cap. L84 Laws of Lagos State 2015 and dismiss same accordingly. (Distilled from the 1st Respondent’s Notice)
2. Whether in the determination of the case before her, the learned trial Judge did in fact place reliance on the 1st Respondent’s non-existent pleadings and if so whether any miscarriage of justice was occasioned to the Appellant in consequence thereof? (Distilled from ground 1 of appeal).
3. Whether upon the extant pleadings properly before her, the learned trial Judge rightly admitted and relied upon the documents tendered by the parties before the Court in proof of the signature of Alhaji Sanda? (Distilled from grounds 3, 5 and 6 of appeal).
4. Whether the learned trial Judge properly evaluated the evidence before her and was correct in her decision that the Appellant had failed to establish any forgery of the signature of Alhaji Sanda in the manner and to the extent required by law? (Distilled from grounds 2, 4 and 5 of the Notice of Appeal).
5. Whether upon the facts pleaded and evidence adduced before the learned trial Judge, the Court reached the correct conclusion in rejecting the Appellant’s claims that Alhaji Sanda had not sold the property to the 1st Respondent in his lifetime? (Distilled from grounds 4, 5, 6 and 7 of the Notice of Appeal).
6. Whether from the totality of the proceedings conducted before the learned trial Judge, the Appellant can be said to have been denied a fair hearing? (Distilled from ground 7 of Notice of Appeal).

The 2nd Respondent also filed its brief of argument, settled by Mrs. Oluwatoyin A. Odusanya, on the 10th March, 2020, deemed properly filed and served on the same date. At page 7 of the said brief, the learned counsel formulated the following three (3) issues for determination:
1. Whether or not the Appellant was given fair hearing
2. Whether the lower Court was right in dismissing the Claimant’s case.
3. Whether having found that the Appellant failed to prove the commission of any fraud by way of forgery of the signature of Alhaji Sanda on documents tendered by the 1st Respondent, the learned trial Judge ought not to have proceeded to find that the suit was thereby statute barred by virtue of the provisions of Section 1(1) and (2) of the Limitation Law of Lagos State Cap. L84 Laws of Lagos State 2015 and dismiss the same accordingly.

Regrettably however, none of the three issues formulated by the 2nd Respondent was tied or married to any of the grounds of appeal. The Appellant’s reply brief was filed on the 10th March, 2020, containing his reply to the preliminary objection raised by the 1st Respondent.

The appeal came up for hearing on the 10th March, 2020. The learned Senior Advocate of Nigeria, C.O.I. Joseph leading five other learned counsel adopted the Appellant’s two briefs in urging the Court to allow the Appeal and to set aside the judgment of the trial Court.

T. J. Odesola Esq., learned counsel for the 1st Respondent adopted the Amended 1st Respondent’s brief of argument and prayed the Court to dismiss the appeal and affirm the judgment of the lower Court on grounds other than the grounds relied upon by the trial Court as per the 1st Respondent’s Notice.

Mrs. O. A. Odusanya leading Mrs. R. A. Gbadamosi adopted the 2nd Respondent’s brief of argument in urging the Court to dismiss the Appeal.

PRELIMINARY OBJECTION OF THE 1ST RESPONDENT
The 1st Respondent raised preliminary objection against the notice of appeal and it incorporated argument in support thereof from pages 6 to 8 of the 1st Respondent’s Amended brief of argument. Relying on the provisions of Order 7 Rules 2(2) and (3) of the Court of Appeal Rules 2016, the learned counsel for the 1st Respondent submitted that the generality of the Appellant’s notice of appeal is unduly prolix, repetitive and argumentative and that the Appellant’s two issues formulated therefrom are incompetent and liable to be struck out.

He however conceded that appeals are not determined on grounds of appeal, but on issues formulated from them, and that in this case where the grounds of appeal are repetitive with a common complaint in them, the proper course is for the Court to “collapse the copiously repeated grounds of appeal into one issue for the argument of the appeal.” He relied on this Court’s decision in Arulogun & Ors V. Aboloyinjo & Anor. (2018) LPELR-CA), in urging upon the Court to collapse them (grounds?) into a sole issue, namely; whether the trial Court rightly admitted Exhibits B-D, S,T, U,W, X and Y tendered by the parties and whether it was correct with respect to the probative value attached to the exhibits.

If we agree with his argument canvassed supra, learned counsel urged upon us to proceed to examine the Appellant’s two issues in order to determine whether they arise from the real and sole ground of appeal based on the central complaint contained in his repetitive grounds of appeal. It was his submission that the said Appellant’s formulated two issues did not show a clear, concise and unambiguous distillation of issues for determination as enjoined by the Rules of this Court. That, the Appellant’s issues are vague, generic and abstract and cannot be identified as arising from any particular ground of appeal. Rather, the Appellant basically dumped the issues on the Court for us to search through his repetitive and argumentative grounds of appeal in order to ascertain which ground will provide an anchor for the issues. That the Appellant’s issues being vague are therefore incompetent to form the basis of the hearing of this appeal and should be struck out together with the argument canvassed thereon. We were urged to so hold and to dismiss the appeal. He placed reliance on the case of Josco AG Global Resources Limited & Anor. V. AMCON (2018) LPELR-45637 in support of his submissions.

The Appellant’s reply to the preliminary objection of the 1st Respondent is contained in pages 1 to 2 of the Appellant’s Amended Reply Brief filed on the 10th March, 2020 and consequentially deemed properly filed on the same date. It was submitted by the learned Appellant’s counsel that the contention of the 1st Respondent to the effect that the grounds of appeal are repetitive and ought to be collapsed into one ground of appeal is misplaced because the grounds of this appeal relate to different findings of the trial Court which the Appellant disagreed with. That, since the Appellant has complied with the rules of this Court having raised seven distinct grounds flowing from the judgment of the trial Court, the 1st Respondent’s challenge to same is therefore unmeritorious.

It was further argued that if the 1st Respondent believed that only one issue ought to have been distilled from the seven grounds of appeal, it ought to have adopted the said issue in its own brief of argument, instead of formulating six issues for determination from the Appellant’s 7 grounds of appeal. He submitted that, the fact that the 1st Respondent/objector formulated six(6) issues from the seven grounds of appeal is indicative or lays credence to the fact that the Notice of Appeal and the grounds contained therein are competent and raised arguable issues for this Court to determine. We were therefore urged upon to dismiss the objection of the 1st Respondent.

The Appellant’s learned counsel after replying to the 1st Respondent’s preliminary objection proceeded to raise objection of his own to the 6 issues for determination proposed by the 1st Respondent. His objection is predicated on the ground that issues 3, 4, 5 and 6 thereof were distilled from more than one ground of appeal which makes them incompetent and liable to be struck out. He contended that the 1st Respondent’s issue 3 is comprised of components from grounds 3, 5 and 6 of the notice of appeal. At the same time, its issue 4 constitutes of a further split of grounds 4 and 5. Also that the 1st Respondent’s issue 5 contains a further split from grounds of appeal numbers 4, 5 and 6. Further, that its issues 5 and 6 are said to be derived from ground 7 of appeal. He referred to the cases of Egbirika V. The State (2014) 1-2 SC (pt. 1) at 14 and Michael & Ors. V. Bank of the North (2015) 5 SC (pt. 1) 1 at 32-33, where the Apex Court held inter alia that while an issue for determination may be distilled from more than one ground of appeal, it is improper to distill more than one issue for determination from a single ground of appeal. He urged upon us to discountenance or strike out the 1st Respondent’s issues 3, 4 and 5 and the arguments canvassed thereon in its amended brief of argument.

DETERMINATION OF THE PRELIMINARY OBJECTION OF THE 1ST RESPONDENT AGAINST THE GROUNDS OF APPEAL AND APPELLANT’S ISSUES DISTILLED THEREFROM
The objection of the 1st Respondent is against the grounds of appeal contained in the notice of appeal, which are the very foundation of this appeal, and also the Appellant’s two issues formulated therefrom. I will start with the grounds of appeal. The rule regarding drafting of grounds of appeal is specifically stated in Order 7 Rules 2(3) and 3 of the Court of Appeal Rules 2016 quoted below:
2(3)- “The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without argument or narrative and shall be numbered consecutively.
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court on its own motion or upon an application by the Respondent.”
Clearly, the intention of the draftsman in the above rules is that the grounds of appeal must clearly set out the exact complaint of the Appellant against the judgment appealed against. Indeed, there are several decisions of this Court and the Apex Court regarding the purpose of or the essence of the above rules on drafting of grounds of appeal. Essentially, the rules aimed to ensure that the grounds of appeal are drafted clearly so as to give the Court and the Respondent the exact nature of the Appellant’s complaint(s) against the judgment appealed against. Note the use of the words “concisely” meaning in brief or summarily, and the word “vague” which ordinarily mean unclear. The draftsman’s intention in the said rules is that the grounds of appeal must be brief and not confusing to the Respondent and the Court.
Also, clearly articulated grounds of appeal will aid the Court and the Respondent to identify the question in controversy to be determined in the appeal. Generally where the grounds of appeal satisfy this purpose, they will not be struck out even where they are inelegantly drafted. In other words, once the nature of complaint of the Appellant is sufficiently clear from the grounds of appeal, they will satisfy the requirement of the above quoted Order 7 Rules 2(3) and 3 of this Court’s Rules. The Court will look at the substance of the grounds of appeal rather than the form in which they are presented. See Aderounmu & Anor. V. Olowu (2000) LPELR-141 (SC), Nwosu V. PDP &Ors. (2018) LPELR-44386 (SC), Sanmi V. State (2019) NWLR (pt. 1690) 551.
In order to determine the preliminary objection of the 1st Respondent, it is necessary to examine the 7 grounds of appeal contained in the Notice of Appeal filed on the 25th April, 2018, which can be located from pages 1616 to 1624 of Volume 3 of the record of appeal. The grounds, without their particulars are reproduced below:
GROUND 1:
The learned trial Chief Judge misdirected herself when she countenanced and relied on processes filed or tendered by the 1st Defendant/Respondent which were either earlier rejected by her or irrelevant, went to no issue or were absolutely inadmissible
GROUND2:
The learned trial Chief Judge misdirected herself in law when she posed the issue “whether or not the Claimant has satisfactorily proved and established the commission of fraud by the 1st Defendant” for determination.
GROUND 3:
The learned Trial Chief Judge misdirected herself when, at page 14 of the judgment, she listed Exhibits S, T, and U as certified true copies when in fact they are not.
GROUND 4:
The learned trial Chief Judge erred in law when she held that the Claimant/Appellant failed to discharge the evidential burden on him whereas the Claimant/Appellant having tendered Exhibits B and N without any objection and the 1st Defendant having alleged that the Claimant/Appellant’s deceased father (accepted original owner) sold and assigned the land in dispute to its predecessor (TEXACO AFRICA LIMITED), the 1st Defendant/Respondent was the one that has the onus (which it did not discharge) to prove by credible evidence, the alleged sale/Assignment.
GROUND 5:
The learned trial Chief Judge having earlier in her ruling of 25th April, 2016 relied on and quoted Sowemimo JSC (of blessed memory) In SAGAY & ORS. V. NEW INDEPENDENCE RUBBER COMPANY LTD & ORS. (1977) NSCC PG. 292 at 295, inter alia thus:
“The Learned Trial Judge however did not consider what the situation was at the close of pleadings; because the 2nd and 4th Defendants having failed to file a statement of Defence to the Plaintiff’s Amended Statement of Claim did not raise any issue on which they could be heard….
Any judgment given in this circumstance therefore cannot be said to be based on issues properly raised by either parties before the commencement of the trial or at any stage before the Plaintiff’s case closed”,
erred in law when she subsequently at page 51 of her judgment, held thus:
“In the light of these unexplained discrepancies and absence of material evidence which could have further corroborated the fact that the signature on Exhibit ‘B’ is Alhaji Sanda’s true and registered signature, I hereby hold that the Claimant failed to prove that his late father’s signature was forged & misrepresented on Exhibits ‘S’, ‘T’, ‘U’, ‘W’ and ‘Y’ beyond all reasonable doubt which is the evidential burden placed on him by the law.”
GROUND 6
The learned trial Chief Judge erred in law when she, despite her earlier Ruling of 15th April, 2016, admitted and relied on Exhibits ‘S’ and ‘T’ in coming to her decision.
GROUND 7:
The learned trial Chief Judge erred in law when she took argument of counsel on several issues without deciding those issues one way or the other before coming to her final decision.
A close examination of the reproduced grounds of appeal show that in ground 1, the Appellant complained against the learned trial Judge’s reliance on the processes that it earlier rejected during the trial. The particulars elaborated and referred specifically to the proposed 1st Respondent’s proposed, but rejected 1st further amended statement of defence filed on the 11th November 2015, which the Appellant alleged that the trial Court relied on in its judgment. This ground therefore is a complain of misconception of the proper pleadings of the parties by the trial Court.
In Ground 2, the Appellant’s complaint is against the formulation of the issue by the learned trial Judge, which the Appellant alleged a misdirection regarding on whom, among the parties did the onus of proving misrepresentation of the signature of late Alhaji Sanda rest. In Ground 3, the Appellant’ complaint is against the trial Court’s tagging of some exhibits as certified true copies which he asserted that they were not. In Ground 4, the Appellant complained against the trial Court’s holding that he failed to prove his claim, which he alleged was based on its misplacement of onus of proof. Ground 5 is a complaint against the trial Court’s failure to follow the Supreme Court’s decision in Sagay & Ors. V. New Independence Rubber Co. Ltd (supra), in view of the extant pleadings of the parties before it. In Ground 6 the Appellant complained against the failure of the trial Court to properly evaluate documentary exhibits before reaching its decision and in Ground 7, the Appellant complained that the trial Court failed to resolve, one way or the other, the applicability of the Limitation Law of Lagos to the fact/question in controversy despite the counsel extensive addresses on same.
It is therefore clear that there is sufficient notice of the complaints of the Appellant against the judgment of the trial Court given in the said grounds of this appeal. The particulars of each ground of appeal clearly explained the grievances of the Appellant to specific finding of the trial Court. Rather, as posited by the Appellant, the grounds related to his complaints regarding different findings in the judgment of the lower Court.

The Appellant is the undoubted owner of the appeal and unless it is shown to the Court clearly that the grounds of appeal did not relate to the judgment appealed against, or the other side is left in doubt or is left without actual information as to what the complaint of the Appellant really is, the grounds will not be struck out. In other words, once the complaint of the Appellant against the judgment of the trial Court makes sense from the grounds of appeal, they will not be struck out. See Omidiran V. Etteh (2011) 2 NWLR (pt. 1232) 471.
In this case, the ground of objection is that the grounds of appeal are prolix, argumentative, not that the Respondent did not understand the complaints of the Appellant contained therein. It is my view that the grounds of this appeal are adequate in law, as such there is no justification for striking them out and I so hold.

As for the suggestion of the 1st Respondent to collapse all the seven (7) grounds of appeal into a single issue for determination, I totally agree with the Appellant’s learned counsel’s submission that the 1st Respondent is at liberty to do the collapsing in its own brief of argument, rather than raise an objection to urge us to do what it (1st Respondent) can legitimately do on its own as of right being a party (Respondent) in the appeal.

The second leg of the preliminary objection is against the Appellant’s formulated two issues for determination. It was contended that the said Appellant’s issues are vague and generic and therefore liable to be struck out. Again, I refer to Order 19 Rule 3(1) of this Court’s Rules 2016, which provides that the brief of argument settled by counsel in an appeal shall contain what in the Appellant’s view are the issues arising in the appeal. However, the foundation of such issues must be from the grounds of appeal, otherwise, they will be incompetent. See Omilani & Anor V. Omisore & Anor (2006) LPELR-6096 (CA) and IN RE: Balogun & Ors. (2007) LPELR-4187 (CA). In any event, the law is that where the issues formulated by the Appellant are imprecise or poorly drafted both the Court and the Respondent are at liberty to re-formulate the issues, which will highlight the real questions in controversy as disclosed in the grounds of appeal. See Nzekwe V. Anaekwenegbu (2019) LPELR-49002 (SC), Edem V. Canon Balls Ltd (2005) LPELR-1007 (SC) and EGWA V. EGWA (2006) LPELR-5389 (CA).

I have closely examined the two issues formulated by the Appellant (supra), which in his view arise for determination in this appeal, vis-à-vis the grounds of appeal also reproduced supra. I am satisfied that the Appellant’s two issues for determination arise from the grounds of appeal and therefore competent. Consequently, there is no merit in the preliminary objection of the 1st Respondent and same is hereby dismissed by me.

DETERMINATION OF THE APPELLANT’S OBJECTION TO 1ST RESPONDENT’S PROPOSED ISSUES 3, 4, 5 AND 6
The issues proposed for determination by the learned counsel for the 1st Respondent are contained in pages 8 to 9 of the Amended 1st Respondent’s brief of argument, and they are reproduced supra. The 1st Respondent’s proposed issue 3 is formulated from grounds 3, 5 and 6, while issue 4 was distilled from grounds 2, 4 and 5, and issue 5 was again distilled from grounds 5, 6 and 7 of the notice of appeal. This means that Ground 5 of the Notice of appeal has three issues 3, 4 and 5, distilled from it, and ground 6 of the notice of appeal has two issues namely, issues 3 and 5 distilled from it. Ground 4 has two issues, 4 and 5 distilled from it and ground 7 also has two issues, 4 and 6 distilled from it.
Though the total number of issues proposed by the 1st Respondent have not outnumbered the grounds of appeal, but there was a clear proliferation of issues because more than one issue was formulated from a single ground of appeal as indicated above. It is not allowed to distill more than one issue from a single ground of appeal as was done by the 1st Respondent. By framing more than one issue from a single ground of appeal as discerned above, the 1st Respondent is in breach of the principle of law to the effect that the grounds of appeal should never be less than the issues for determination. See Adelaja V. Fanoiki & Anor. (1990) LPELR-110(SC) and Society BIC S. A. & Ors. V. Charzin Industries Ltd (2014) LPELR-22256 (SC).

For the above stated reasons, the Appellant objection is meritorious and it is sustained with the resultant effect that the 1st Respondent’s issues 3, 4, 5 and 6 are incompetent and they are hereby struck out together with all the argument canvassed thereon. The 1st Respondent’s issues 1 and 2 are competent, but its issue one (1) relates to the 1st Respondent’s Notice. As such, for the main appeal only argument on her issue 2 canvassed in pages 17 to 20 (paragraphs 57 to 68) will be considered.

OBJECTION OF THE APPELLANT TO THE 2ND RESPONDENT’S BRIEF OF ARGUMENT
During the hearing of the appeal, the learned Senior Counsel for the Appellant raised oral objection to the 2nd Respondent’s brief of argument on the ground that the three issues formulated therein were not distilled or tied to any of the seven grounds of appeal. Relying on the cases of Chukwuma V. Ifeloye (2008) LPELR- 862(SC) and Ejiogu V. Irona (2009) 4 NWLR (pt. 1132) 513 at 545 (CA), the leaned senior Counsel urged us to strike out the 2nd Respondent’s brief of argument for being incompetent.

Responding to the objection of the Appellant’s learned Counsel, Mrs. Odusanya of counsel to the 2nd Respondent submitted that the three issues formulated by the 2nd Respondent in its brief of argument are competent as they are formulated from the grounds of appeal. She relied on the case of Ajibulu V. Ajayi (2013) LPELR-21860 (SC) in urging us to disregard the objection of the Appellant’s counsel.

DETERMINATION OF THE ORAL OBJECTION OF THE APPELLANT’S LEARNED COUNSEL TO THE 2ND RESPONDENT’S PROPOSED ISSUES FOR DETERMINATION
The Appellant’s learned counsel referred us to the cases of Chukwuma V. Ifeloye (supra) and Ejiogu V. Irona (supra) in support of his oral objection to the 2nd Respondent’s issues not being tied to any of the grounds of appeal. I examined those two cases and I observe and find that the case of Chukwuma V. Ifeloye was decided by the Supreme Court in 2008 and Ogbuagu, J.S.C. held at pages 29-30 that:
…learned counsel for the Appellant, did not state under which ground of appeal of their Notice of Appeal, each issue or all the three issues, was or were formulated/distilled from. Admirably, the learned counsel for the Respondent in their Brief, did so indicate/state. The consequence of failure to so state, has been stated and re-stated by the two Appellate Courts, in a plethora of decided authorities. The said issue or issues will be struck out as being incompetent….
However, in its later decision in Adejumo & Ors. V. Olawaiye (2014) LPELR- 22997-(S.C), per Rhodes-Vivour, the Apex Court took a different approach from that taken in Chukwuma V. Ifeloye (supra), and held that:
It is desirable practice for counsel for the appellant to state clearly in his brief the grounds from which each issue is formulated. This would be of tremendous assistance to a judge sitting on appeal. It is good practice and should be encouraged. But an appellant’s counsel is not bound, if he chooses not to. It is one of mere desirability and not essentiality. That is to say, it should be regarded as a procedure to be taken, but failure to comply would not be fatal.
The principle of law enunciated in the later decision of the Supreme Court is the extant position on the issue. I also read the case of Ajibulu V. Ajayi (supra) relied upon by the Appellant’s senior counsel to further support his oral objection. In that case, this Court (per Garba, JCA) held in page 456 paragraphs F-H thus:
Looking at the issue formulated by the learned counsel,… I have no difficulty whatsoever in finding that the said issue did not come from, enure or drive from the ground of appeal…. Consequently, my view is and I find that the 1st Respondent’s issue does not relate to the 1st ground of appeal or any of the other grounds of appeal. It is for that reason incompetent and struck out.
It is clear that the reason for the striking out of the issue in the above case was because it (the issue) did not relate to and was not distilled from any of the grounds of appeal. It was not because of the failure to state from which ground (s) the issue was distilled. The case of Ajibulu V. Ajayi (supra) is therefore irrelevant and unhelpful to the objection of the Appellant against the issues formulated by the 2nd Respondent, which was on the ground of failure to state from which grounds of appeal the issues were distilled or formulated.
Moreover, this Court’s 2016 Rules do not make the failure of the party to state from which grounds of appeal an issue is raised for determination liable to be struck out. It is no doubt good practice and it has become a convention in appeals that the issues formulated for determination of an appeal should be tied to the grounds of appeal from which they arise. However failure to do so does not render the issues liable to be struck out so long as they relate to the grounds of appeal as per the Apex Court’s decision in Chukwuma V. Ifeloye (supra).
I have also closely examined the three issues formulated by the 2nd Respondent in page 7 of the 2nd Respondent’s brief of argument reproduced supra. I find that they relate to the grounds of appeal in the notice of appeal and therefore they are competent, not withstanding the regrettable failure of the learned counsel to state the grounds from which they were crafted. The oral objection of the learned senior counsel of the Appellant is discountenanced and dismissed for the stated reasons.

SUBSTANTIVE APPEAL
I have accorded ample consideration to the grounds of appeal contained in the notice of appeal, the judgment of the trial Court appealed against and the respective briefs of argument of the parties. I am of the view that the two issues proposed by the Appellant directly encompassed his complaints from his grounds of appeal. I adopt the Appellant’s two issues for the determination of this appeal. They will be determined seriatim.

APPELLANT’S SUBMISSIONS
In arguing issue one, the learned Appellant’s counsel relied on the case of Udengwu V. Uzuegbu (2003)7 S.C. 64 at 69-70 to submit mainly, that the judgment of the trial Court was perverse for the reasons that the trial Court countenanced and relied on the non-existent pleadings of the 1st Respondent (1st Defendant) to wit, proposed 1st Further amended Statement of Defence and witness statement on oath both dated 13th November 2015; while the extant pleading of the 1st Respondent was the 1st Defendant Further Amended Statement of Defence and its witness statement on oath both filed on the 21st November, 2014, which the trial Court had rejected in its ruling on the application of the 1st Respondent, seeking to further amend its statement of defence.

It was further submitted that the trial Court’s consideration of the wrong 1st Respondent pleadings led to its misapprehension of the state of pleadings and the issues joined by the parties before it. The learned counsel contended that the 1st Respondent, by its extant pleadings did not dispute the fact that the late Alhaji Sanda had only one registered signature, which was contained in the Appellant’s Exhibits B and N. That the registered signature of Alhaji Sanda on the Appellant’s Exhibits ‘B’ and ‘N’ was never an issue between the parties and therefore, the trial Court fell into grave error by admitting the 1st Respondent’s Exhibits ‘S’ ‘T’ and ‘U’ for the purpose of disputing late Alhaji Sanda’s registered signature.

It was further argued that the trial Court fell into grave error when it admitted Exhibits ‘S’, ‘T’ and ‘U’ in evidence, because they were not pleaded as it found in its ruling of 25th April, 2015. In addition, the Appellant argued that the trial Court misapprehended and mischaracterized their nature (being public documents), and its labeling them as certified true copies, which they were not, which, he submitted, occasioned miscarriage of justice and rendered the judgment of the lower Court as perverse. He placed reliance on the case of Araka V. Egbue (2003) 17 NWLR (pt. 848) 1 at 18 to the effect that the only acceptable secondary evidence of a public document is a certified true copy of it.

The Appellant’s learned counsel further contended that the real issue for determination before the trial Court was whether the 1st Respondent proved any sale/assignment of the residue of the leasehold interest held by late Alhaji Sanda to its predecessor by a deed of assignment dated 2nd March, 1967. But the trial Court wrongly made the issue of whether the Appellant had proved commission of forgery of the signature of late Alhaji Sanda as he alleged an issue for determination. He submitted that the issue of forgery never arose for determination before the trial Court because both counsel to the Appellant and 1st Respondent in their respective final written addresses “effaced that the standard of proof required in this instance (forgery?)” is not proof beyond reasonable doubt contrary to the holding of the trial Court. Relying on the case of Ndoma-Egba V. ACB (2005) 14 NWLR (pt. 944) 79 at 103, he argued that nowhere in the Appellant’s pleadings before the trial Court did he make allegation of crime, as such the provision of Section 135 of the Evidence Act 2011 was not applicable. That the trial Court fell into error when it postulated the issue whether the Appellant proved the commission of forgery/misrepresentation beyond reasonable doubt, thereby misapprehended the burden and standard of proof in the suit, which occasioned miscarriage of justice. That in fact, the fraud/forgery/misrepresentation of the signature of late Alhaji Sanda was admitted by the 1st Respondent and established before the trial Court. He referred to the Appellant’s further witness statement on oath wherein the Appellant pleaded particulars of forgery, which he posited that had the trial Court adverted her mind to, would have led her to hold that the commission of forgery/misrepresentation by the 1st Respondent has been proved. He argued further that the trial Court misconceived the facts and erred in the application of the law when she held that proof of forgery beyond reasonable doubt was expected of the Appellant. This Court was urged to hold that the use of the word “forgery” by the Appellant has a secondary connotation, as was held in the case of Ndoma-Egba V. ACB (supra). Still under this issue, it was the further submission of the Appellant that since 1st Respondent acknowledged and conceded the primary title of the Appellant’s late father, Alhaji Sanda, but traced its title through sale of same to it by the said Alhaji Sanda, it has, by law, the burden to prove its title to the land through sale as asserted, which burden it failed to discharge that burden as required by the law of evidence. He relied on the case of Nwavu V. Okoye (2008) 18 NWLR (pt. 1118) 29 at 75-76.

He further submitted that Exhibits S, T and U (equitable mortgage, power of attorney and deed of transfer) relied upon by the 1st Respondent are not admissible evidence and the trial Court ought to have expunged them from the record. The reason being that Exhibit ‘S’ was a public document, as such, only its CTC was admissible in evidence. Exhibit ‘T’ was at variance with the pleading and ought not to be admitted in evidence and Exhibit ‘U’ being a deed of assignment/transfer was not registered pursuant to Section 5(1) of the Registration of Titles Ordinance Cap. 181 LFN 1958, which makes it void in addition to the fact that it was also not pleaded. We were urged upon to expunge these exhibits.

That, the 1st Respondent’s Exhibits ‘W’, ‘X’ and ‘Y’ are impossible in their sequence as per the dates on them. That Exhibit ‘X’ dated 1st March, 1967 referred to Exhibit ‘W’ which came a day after it (‘X’). The Court’s attention was drawn to the evidence of DW1 under cross-examination to the effect that same person signed Exhibits ‘W’, X, Y and 1C which were dated 8 years after the death of Alhaji Sanda and that means that he never signed any of them. For instance on Exhibit ‘X’, it was stated that Alhaji Sanda was paid 600 pounds in 1965, which period was two years before any transaction occurred between him and the 1st Respondent, that is, in 1967. The Court was urged to also expunge these documents from the record of the trial Court because they are highly improbable and indeed impossible. Moreover, the documents tendered were at variance with the ones frontloaded and they therefore go to no issue. Learned Counsel relied on the case of Bozin V. State (1985) 2 NWLR (pt. 8) 465 at 471 in support.

On the certificate of occupancy issued by the 2nd Respondent to the 1st Respondent on the disputed land and admitted in evidence during the trial as Exhibit ‘O’, the learned Appellant’s counsel argued that by the provisions of Section 34(1) of the Land Use Act, the late Alhaji Sanda was deemed to be the holder of the statutory right of occupancy of the land in issue. He posited that Exhibit ‘O’ was issued to the 1st Respondent while the right of the late Alhaji Sanda was in existence (since it was not shown that his title No. LO5227 was revoked) as such, Exhibit ‘O’ is rendered void because two different persons cannot hold statutory right of occupancy over the same land. He referred to the cases of Dantsoho V. Mohammed (2003) 6 NWLR (pt. 817) 457 and Ibrahim V. Mohammed (2003) 6 NWLR (pt. 817) 615 in support of the argument and in urging us to hold that Exhibit ‘O’ is void, especially so, since it could not have been validly produced on Exhibit ‘U’ (deed of assignment) which was void as far back as 1967 for failure to register same. Conclusively, he urged upon us to hold that the judgment of the trial Court was perverse and to resolve issue one in favour of the Appellant.

With regards to issue two, the Appellant’s learned counsel submitted that the trial Court did not consider the Appellant’s case thereby breaching his fundamental right to fair hearing and occasioning miscarriage of justice, because the judgment is one sided. That the trial Court failed to consider the final written address of the Appellant’s counsel before reaching its decision. In addition, the trial Court failed to consider the argument of the Appellant’s counsel on the invalidity of Exhibits S, T, U, W, X Y and ‘O’ with regards to the weight to be attached to them upon the argument already canvassed on them under issue one. He further contended that the trial Court also failed to consider the Appellant’s argument to the effect that the evidence of forgery was led in Appellant’s witness statement on oath, which if considered, the trial Court would not have held that his allegation of forgery was not proved. That in effect, the judgment of the trial Court ought to be set aside. We were urged to so hold and to resolve issue 2 in favour of the Appellant and enter judgment for the Appellant as per his claim before the trial Court.

1ST RESPONDENT’S SUBMISSIONS
In arguing issue 2, raising the question whether the learned trial Judge did in fact rely on the non existent pleadings of the 1st Respondent (to wit; the proposed 1st Respondent’s 1st Further Amended Statement of Defence dated 13th November, 2015) instead of her extant pleading dated 21st November, 2014, learned counsel posited that it was a mere slip, an innocuous error and an honest mistake made by the trial Court. He submitted that the error/slip or innocence of the mistake made is underscored by the fact that the trial Court immediately after referring to the wrong pleading of the 1st Respondent in its judgment, proceeded to refer to the Appellant’s Reply dated 16th February, 2015 filed in response to the 1st Respondent’s extent statement of defence of 24th November, 2014. Also in the evaluation of the 1st Respondent’s case, the trial Court relied on the Further Statement on Oath of the 1st Respondent’s witness that was admitted as Exhibit ‘M’, and filed along and in support of the extant pleading of the 1st Respondent. He submitted further that the trial Court did not countenance the 1st Respondent’s witness statement on oath dated 13th November, 2015 filed along with the wrong statement of defence tagged 1st Further Amended Statement of Defence filed same date. He relied on the case of Mobil Producing Nigeria Unltd V. Okon Johnson & Ors. (2018) LPELR-44359, to the effect that it is not every slip committed by a trial Judge in his judgment that will result in reversal of the judgment on appeal. Such slip to be regarded as fatal must occasion substantial miscarriage of justice. It was argued that despite the heavy weather made by the Appellant in his brief as to the slip made by the trial Court, no prejudice whatsoever has been occasioned to the Appellant in consequence thereof.

In response to the Appellant’s argument to the effect that Exhibits ‘S’ and ‘T’ (equitable mortgage and Power of Attorney) were admitted in evidence on the basis of the rejected 1st Respondent’s pleading, learned 1st Respondent’s counsel submitted that this argument is not supported by the record. He submitted that the two exhibits were admitted via a ruling of the trial Court delivered on the 27th January, 2017 in which it held that the two documents were pleaded by the 1st Respondent in its statement of defence filed on the 21st November, 2014 which is the extant pleading. The trial Court further observed that indeed the Appellant had tendered the CTC of the same documents and they were already admitted as Exhibits ‘D’ and ‘C’ and the 1st Respondent could equally tender the originals of the same documents. The Court was therefore urged to discountenance the submissions of the Appellant and to hold that the trial Court did not rely on non-existing pleadings of the 1st Respondent and that Exhibits S and T were admissible evidence under its extant pleadings.

2ND RESPONDENT’S SUBMISSIONS
In arguing the 2nd Respondent’s issue one, whether the Appellant was given fair hearing, its learned counsel referred to and relied on the cases of Atano V. A. G. Bendel State (1988) 2 NWLR (pt.75) 132, MFA & Anor. V. Inongha (2014) LPELR-22010 (SC) and Pam V. Mohammed & Anor. (2008) LPELR-2895 (SC), among others to submit that the trial Court complied with the principle of fair hearing which basis is audi alterem partem. That the purpose of an appeal is for the Appellant to show where the trial Court was wrong in its decision and not for the Appellant to re-package his case or bring a new case.

On issue 2, the learned counsel argued that in a suit for declaration of title to land, the burden is on the plaintiff to succeed on the strength of his case and not on the weakness of the defence. In this case, the trial Court found that the Appellant was not able to prove the allegation of fraud beyond reasonable doubt as required by Section 135(1) of the Evidence Act 2011. With regards to the submission of the Appellant against the admissibility of Exhibits ‘S’, ‘T’ and U and his prayer to expunge them from the record, learned 2nd Respondent’s counsel argued that was tantamount to asking this Court to re-evaluate the evidence. She submitted that an Appellate Court does not evaluate evidence simply because the Appellant requested for it; but the Appellant must show that the trial Court made improper use of its opportunity of seeing and hearing the witnesses or that it did not appraise the evidence and ascribe probative value to the evidence or that it drew wrong conclusion from the proved and accepted facts which led to miscarriage of justice. In this case, the Appellant has not proved that Exhibits S, T and U were wrongly admitted by the trial Court. The Appellant had the opportunity to object the admission of the said exhibits or to oppose the evidence of the 2nd Respondent’s witness during the trial but failed to do so. She argued that it is now too late to ask for the evidence to be expunged. She referred to Rukuje V. Deba (2018) LPELR-44422 (CA), Odogwu V. Onochie (2002) 8 NWLR (pt. 789) 254 (CA) and Horizon Fibres (Nig.) PLC V. M. V. Baco Liner 1 (2002) 8 NWLR (pt. 769) 466 (CA) in support of her argument and urging upon us to affirm the decision of the trial Court dismissing the claims of the Appellant for lack of proof.

In arguing issue three, the learned counsel posited that having found that the Appellant failed to prove the commission of fraud by way of forgery of the signature of his late father on the documents relied upon by the 1st Respondent, the trial Court ought to have proceeded to find that the suit was statute barred by virtue of the Limitation Law of Lagos State and dismiss the same. In support, learned counsel referred to a host of authorities including Mohammed V. Military Administrator, Plateau State (2001) 16 NWLR (pt. 740) 148 and Ibrahim V. JSC Kaduna State (1998) 14 NWLR (pt. 584) 1 to urge upon us to hold that the Appellant has an empty cause of action which cannot be enforced.

The Appellant’s Amended Reply brief was filed on the 10th March, 2020, and it constitutes a re-argument of the issues raised regarding the admissibility of Exhibits S, T and U. All the argument canvassed therein is noted and have already been captured supra. It therefore will serve no useful purpose to be repeated here.

RESOLUTION OF THE ISSUES
ISSUE ONE:
The complaint of the Appellant under this issue is that the entire judgment of the trial Court is perverse. A perverse finding connotes that it was reached contrary to the evidence adduced before the Court; or that the inference drawn by the trial Court is unsupported by evidence or that the decision is so manifestly unreasonable that no reasonable Tribunal could have come to the conclusion reached on the pleadings and evidence before it. A perverse finding is also speculative because it was reached completely outside the evidence before the Court. A judgment is said to be perverse where it paid scanty attention or total disregard to the applicable law. So also a decision will be perverse where the trial Judge misapprehended the facts, or where the Court has drawn wrong inference from the evidence adduced thereby occasioning miscarriage of justice, or where the Judge took into account matters which he ought not have taken into account or where he shut his eyes to the obvious. See Rabiu V. Kano State (1980) LPELR-2936 (SC), Fixity Inv. Ltd V. Gumel (2016) LPELR-41549 (CA), Iwuoha V. NIPOST Ltd & Anor. (2003) LPELR-1569 (SC), Odiba V. Azege (1998) 9 NWLR (pt. 566) 370 and Atolagbe V. Shorun (1985) LPELR-592 (SC).

Under this issue, the Appellant relied on several grounds in asserting that the judgment appealed against is perverse. Firstly, that learned trial Judge misapprehended the pleading because he relied on the 1st Respondent’s 1st Amended statement of defence dated 13th November, 2015, which was not the extant pleading, thereby leading to miscarriage of justice. The 1st Respondent’s response to this argument is that the mention of the wrong statement of defence was an innocuous slip since the learned trial Judge relied only on the extant witness statement on oath.

I have closely examined the judgment and I find that the learned trial Judge commenced by stating the reliefs sought by the Appellant/claimant and immediately after that, he proceeded to state the pleadings of the 1st and 2nd Respondents at page 1563 of volume 3 of the record of appeal thus:
The 1st and 2nd Defendants filed Amended Statements of Defence dated 13th November, 2015 and 13th April, 2015 respectively. The Claimant filed reply to the 1st Defendant’s defence dated 16th February, 2015.

The learned trial Judge continued to review the evidence of each party’s witness, including the evidence of the only witness of the 1st Respondent, in chief and under cross examination, from pages 1568 to 1570 Volume 3 of the record of appeal.

The 1st Respondent’s extant pleading was its Further Amended Statement of Defence of the 1st Defendant filed on the 21st November, 2014, along with additional list of documents and the 1st Defendant’s Further Witness statement on oath, located from pages 1007 to 1018, Volume 2 of the record of appeal. I have carefully examined the pleadings and the evidence in those documents upon which I find they are exactly the same as reviewed and referred to by the learned trial Judge in the judgment. The Appellant did not complain that the evidence the trial Judge reviewed and relied upon as the evidence of the 1st Defendant’s only witness, (Mr. Mojoyinola Akinkoye (DW1) was not his evidence either in chief or under cross examination. In the circumstances, I am inclined to agree with the learned 1st Respondent’s counsel that the mentioning of the wrong date in referring to the pleading of the 1st Respondent at the beginning of the judgment by the trial Court was indeed an accidental slip which did not affect her understanding of the pleadings and evidence of the 1st Respondent, as clearly borne out of the record. I particularly note that there are several amendments of the pleadings by both the Appellant/Claimant and the 1st Respondent/1stDefendant on different dates throughout the duration of the trials as borne out on the very bulky record of proceedings/appeal. The slip in stating the correct date on the 1st Respondent’s pleading is understandable in the circumstance.

The second complaint of the Appellant under issue one is that the learned trial Judge wrongly admitted Exhibits ‘S’, ‘T’, ‘U’ and ‘O’ in evidence because they were not pleaded; they were wrongly labeled as certified true copies and they are not, and that Exhibit ‘O’ is void because it was not registered in accordance with Section 5(1) of the Registration of Titles Ordinance of 1958. He further complained that the Exhibits ‘W’, ‘X’, and ‘Y’ are impossible in their sequence considering the dates on them. The Court was urged to expunge all these documents from the record.

In line with the principle of law granting coordinate jurisdiction to this Court and the trial Court in the evaluation of the documentary exhibits, I will examine the stated exhibits. The learned trial Judge enumerated and described at pages 1574 to 1576 of the record of appeal all the exhibits tendered and admitted in evidence during the trial. They are also attached to the respective pleadings of the parties. Exhibit ‘S’- of the deed of equitable mortgage created on the Title No. LO5227 between late Alhaji Sanda and Texaco Africa Ltd dated 27th February 1966. Exhibit ‘T’ is described as the CTC of the Power of Attorney from Alhaji Sanda to Texaco Africa Ltd dated 28th February, 1967. Exhibit ‘U’ is the deed of transfer/assignment from Alhaji Sanda to Texaco Africa Ltd, and Exhibit ‘O’ is the CTC of the Certificate of Occupancy issued to the Texaco Africa Ltd dated 1st January, 1979. Exhibit ‘W’ is a letter of instruction dated 2nd March, 1967 from late Alhaji Sanda instructing the 1st Respondent’s predecessor to pay purchase price of the property to Fox & Co. Exhibit ‘X’ is the 1st Respondent’s invoice dated 1st March, 1967 showing authorization of payment and details of payment to Fox & Co. Exhibit ‘Y’ is the payment receipt executed by late Alhaji Sanda confirming payment of the purchase price of the land to the 1st Respondent dated 2nd March 1967.

The Appellant asserted that the Exhibits ‘S’, ‘T’ and U were not pleaded and were not admissible in evidence. The Appellant’s extant pleadings is his Amended Statement of Claim No. 3 filed along with list of witnesses, witness statement on oath and additional list of documents on the 4th March, 2015 and located in pages 1227 to 1246 of the record of appeal. In paragraphs 9 to 12 averred clearly that his late father created an equitable mortgage on the 27th February, 1966 in favour of the Texaco Africa Ltd and deposited the original land certificate title No: LO5227 with the said Texaco and let it into the possession of the land in dispute. See paragraphs 9 and 10 of the pleading at page 1228 of the record. This he attached to his pleadings and it was admitted as Exhibit ‘D’, same as 1st Respondent’s Exhibit ‘S’. The Appellant further pleaded in paragraphs 11 and 12 that his late father further donated power of attorney in respect of the land to the said Texaco Company registered on the 28th February, 1967. The 1st Respondent admitted the facts pleaded by the Appellant as to the creation of power of attorney and the creation of the equitable mortgage on the land in issue in its favour in paragraphs 5, 14 and 15 of the further amended statement of defence of the 1st Respondent located at pages 1007 to 1010 of the record of appeal. This was admitted as his Exhibit ‘C’, same as the 1st Respondent’s Exhibit ‘T’. There was therefore no contention on these two documents and they are clearly pleaded and agreed upon. They are admissible in evidence contrary to the assertion of the Appellant’s learned counsel. It is strange that the Appellant will complain about documents that he also relied on at the trial. With regards of Exhibit ‘U’, the deed of transfer of the land to Texaco by late Alhaji Sanda, the 1st Respondent pleaded that the land was sold to it for a consideration of 12 thousand pounds and he executed deed of the transfer of his interest to Texaco. See paragraph 19 of the 1st Respondent’s pleading, which means that Exhibit U was pleaded by the 1st Respondent. The 1st Respondent also asserted in paragraph 22 that it was issued a certificate of occupancy on the 1st January, 1979, which was admitted as Exhibit ‘O’. These documents were pleaded and indeed relevant to the fact in issue, that is the title to the land in dispute and therefore they were admissible and the trial Court was right to admit them in evidence and I so hold.

With regards to Exhibits ‘W’, ‘X’, and ‘Y’, the documents of assignment of interest and the payment receipt in the land that the 1st Respondent relied on the facts relating to them are pleaded in paragraphs 17, 18 and 19 of the 1st Respondent pleadings aforementioned. They were also listed and attached in its list of documents attached to the Further Amended Statement of Defence of the 1st Respondent filed on the 21/11/14 as shown on page 1011 of the record of appeal. See also the 1st Respondent’s witness statement on oath where in all the documents were referred to by the witness. I hold the view that these documents were relevant, pleaded and therefore admissible in evidence, and the trial Court was entitled to rely on them.

The learned trial Judge rightly considered all the documents placed before her by each party as clearly shown on the record from pages1608 to 1613 thereof. She correctly stated the case put up by the Appellant by which he placed reliance on Exhibits ‘B’, ‘C’, ‘D’ and ‘N’ to assert that his father’s signature on these documents, particularly on the original title document LO5227, is different from the signature on the 1st Respondent’s documents and therefore his signature was forged in those documents. The trial Court found that Exhibits C & D were unsigned so there was no signature on them to be compared with the one on the 1st Respondent’s documents. The learned trial Judge also found discrepancies in the signatures on Exhibits B and N, which made them unreliable.

The trial Court therefore came to the conclusion that the documents relied upon by the Appellant who has the general burden of proving his claim, was not discharged. In particular, the learned trial Judge noted the assertion of the Appellant that the signature of his father on the 1st Respondent’s Exhibits S, T, U, W and Y was forged/misrepresented, which assertion he failed to prove. The trial Court further found that the Appellant failed to prove or explain why their late father failed to take over possession of the land from the 1st Respondent’s predecessor in title after 1968, or made any attempt to retrieve his original title documents. It concluded that the Appellant failed to prove that his father’s title No. LO 5227 is extant and he also failed to lead credible evidence to establish that indeed his late father did not assign his interest in the land to the 1st Respondent’s processor in title.

I have also carefully examined these exhibits, I find that the learned trial Judge was correct in his evaluation of them, and he indeed followed the laid down principle of law before reaching the above conclusion. Indeed as I observed earlier, the entire case was fought on documentary evidence and the trial Court was right to thoroughly examine documents relied upon by the Appellant side by side with the Documents relied upon by the Respondents and decide which sides preponderates. I therefore have no hesitation to affirm a stamp of approval to the correct finding of facts made by His Lordship in finding that the documents relied upon by the 1st Respondent have more probative value than those relied upon by the Appellant.

The Appellant also complained against the trial Court’s preference of the 1st Respondent’s documents, particularly Exhibits W, X, Y and U which he argued were mischaracterized as certified true copies when they are not, and that Exhibit U, the deed of transfer was void because it was not registered in accordance with Section 5(1) of the Registration of Titles Ordinance Cap 181 LFN 1958 and that made the it void. I have earlier held that the documents are relevant to the fact in issue, and pleaded by the parties and therefore admissible in evidence. These documents were also registered with the 2nd Respondent, based on which a caution was placed on the land in 1974 and subsequently a certificate of occupancy issued to the 1st Respondent.

It is pertinent to re-iterate that the case of the Appellant before the trial Court was that the said 1st Respondent’s documents were forged since his father never signed them. Therefore the question whether they are CTC or original makes no difference for the simple reason that if he proves that allegation, the documents become void and that will be the end of them.

The Appellant also complained under this issue that Exhibit U, (the deed of transfer of the land to executed by the late Alhaji Sanda in favour of the 1st Respondent) was not registered, and therefore it was inadmissible. Again, the argument is lame in the sense that the Appellant asserted that Exhibit U was forged, so the question of registering a forged document does not arise. All he was required to do was to prove this assertion by credible evidence, which he failed to do as correctly found by the learned trial Judge. In any event, a deed of assignment is valid and enforceable as long as it was signed by the assignor. More so, considering the peculiar circumstances of this case, particularly the equitable mortgage and the power of attorney executed by the father of the Appellant in favour of the 1st Respondent’s predecessor in title (registered with the 2nd Respondent) together with the certificate of occupancy issued by the 2nd Respondent since 1979, all raised the presumption of regularity in favour of the Respondents. The Appellant who challenges the regularity of the documents bears the burden to adduce credible evidence in rebuttal of the presumption. See Ilori & Ors. V. Ishola & Ors (supra), Ishola V. Ilori (2004) LPELR-12557 (CA) and Okpe V. Umukoro (2013) LPELR-21999 (CA).

Moreover, the fact that the land has remained in possession of the 1st Respondent since 1968 and as noted by the trial Court, there was no evidence that any attempt was made to recover possession or retrieve the original title LO 5227 document of same by the late Alhaji Sanda or his estate for over 40 years, which lay further credence to the presumption of regularity of the documents of the 1st Respondent.

Another grouse of the Appellant under this issue is that the learned trial Judge misapprehended and misplaced the burden of proof on the Appellant. He posited that the issue for determination was whether the 1st Respondent’s proved any sale/assignment to its predecessor by a deed of assignment dated 2nd March, 1967. However the trial Court made the issue for proving forgery of the signature of late Alhaji Sanda an issue, which Appellant’s learned counsel submitted did not arise for determination. In contrast to this position, counsel also submitted that the counsel to the parties by their respective final addresses “effaced that the standard of proof required was not beyond reasonable doubt.” He argued that since no allegation of crime was made, the trial Court was wrong to apply Section 135 of the Evidence Act 2011 requiring proof beyond reasonable doubt.

To resolve this complaint, reference must be made to the reliefs sought by the Appellant and evidence adduced in support there of by before the trial Court. I have earlier in this judgment reproduced the reliefs sought by the Appellant. Relief 2 is the main claim while all others are ancillary to it. For guidance, it is again reproduced below:
A declaration that the certificate of occupancy dated the 1st day of January,1979 and registered as No. 85 at page 85 in Vol. 1860 of the Registry of Deeds kept at Lagos lands Registry is null and void and of no effect whatsoever as the same was based on forged document to wit; a deed of assignment that the late Alhaji Sanda never executed in the life time of the existing Title LO 5227. (Underlining supplied).

In paragraph 20 of the Appellant’s statement on oath filed on the 4th March, 2015 (page 1237 to 1243 of the record), the Appellant as CW1 testified in chief that his father never signed the alleged deed of assignment (Exhibit ‘U’) and the signatures on the said deed and receipts of payment “are forged and a deliberate misrepresentation of my late father’s signature as contained in the Title LO 5227.” It is therefore false and misleading for the learned Appellant’s counsel to argue that forgery of the Appellant’s father’s signature was not an issue or that there was no allegation of crime made for the requirement of proof beyond reasonable doubt to be made. Clearly that is not the position of the evidence and pleading. Forgery of the signature of the late Alhaji Sanda on the deed of assignment was made the central issue of the Appellant’s case, which if proved will lead to the grant of the main claim/relief of the Appellant and the ancillary reliefs also.

It is pertinent to state that the reliefs sought by the Appellant, both main relief and ancillary, are all declaratory in nature. The Appellant who claims declaratory reliefs must prove to the satisfaction of the Court that he has an interest or a right that forms the foundation of the relief he seeks to be declared. This means that he must succeed on the strength of his case and not rely on the weakness of the defence if any. See Ilori & Ors. V. Ishola & Anor. (Supra) where the Apex Court in deciding similar facts and circumstance to this appeal held that the burden of proof was on the Appellant who asserted that his father did not sell the land in dispute to the Respondent and not on the Respondent who relied on the document to say that his father sold the land to him. The Apex Court further held in that case that an assertion that the father of the Appellant did not sell the land to the Respondent was criminal in nature and by the provisions of Section 135(1) of the Evidence Act, the allegation must be proved beyond reasonable doubt. So also it is in this case.
The learned Appellant’s counsel has invited us to hold that the use of the word forgery by the Appellant in his declaratory relief has a secondary connotation and he relied on the case of Ndoma-Egba V. ACB (supra). I have read that case and I note that the Apex Court did not give the word “forgery” any other meaning or connotation other than the one given to it by the Criminal Code. Indeed Oguntade JSC clearly held in page 16 paragraphs B-C that:
Where a party denies making a document which he is alleged to have executed or thumb-printed, such denial is tantamount to saying that the document is a forgery or fake. In such a situation, the burden of proof of the forgery rests on the party who alleges, since forgery is a crime, the onus of proof on him who alleges is proof beyond reasonable doubt….
Thus the decision in Ndoma-Egba V. ACB (supra) is against the argument of the Appellant’s leaned counsel especially as the Apex Court defined forgery under the Criminal Code Act. I decline the unlawful invitation by the counsel. Consequently, I hold that the learned trial Judge was on a strong legal ground when she made the issue of forgery of the signature of the Appellant’s father an issue requiring the Appellant who asserted same to prove beyond reasonable doubt which he did not from the evidence he adduced. The Appellant’s mere ipse dixit is not enough to prove the offence of forgery. All the argument of learned Appellant’s counsel canvassed under this issue is baseless and it is discountenanced. In conclusion, upon all my analysis supra, I must resolve issue one against the Appellant and it is hereby resolved against him.

ISSUE TWO
The grouse of the Appellant under this issue is that the learned trial Judge failed to consider the Appellant’s case of the invalidity of the Respondent’s Exhibits S, T, U, W, X, Y and O regarding the weight to be attached to them. He also argued that the learned trial Judge should have considered that the Appellant proved the allegation of forgery proved by him.

This issue has been resolved under my consideration of issue one supra. Suffice it to add that a wrongful admission of evidence alone is not a ground for reversing the judgment of the lower Court where it is found that the same even without the documents complained of. In this case, the only evidence the Appellant relied upon to support his case is that his father created equitable mortgage and power of attorney in respect of the land in favor of the 1st Respondent’s predecessor in title that expired since 1968. He alleged his father signature was forged in the deed of assignment that formed the basis of issuance of the certificate of occupancy to the 1st Respondent, an assertion that he certainly failed to prove beyond reasonable doubt. I therefore adopt my reasoning and findings under issue one and hold that the learned trial Judge properly and adequately considered the pleadings and evidence placed before him by each party before reaching his decision, which I approved as correct. As such I find the allegation of lack of fair hearing against the well considered judgment of the lower Court is baseless. Issue two is resolved against the Appellant.

In conclusion, I observe that in this appeal, it clear that the Appellant was merely fishing for evidence from the Respondents as clearly he had nothing concrete to support his claim to the land that was in the possession of the 1st Respondent for over 40 years. His pleadings and evidence in fact showed that he wrote to the 1st Respondent in search of evidence on how it came about the land. Upon the 1st Respondent’s reply to his enquiry, he proceeded to the 2nd Respondent to make a search and come up with the equitable mortgage, power of attorney, etc. to use as weapons of attack against the Respondents on something he knew nothing about since he was a child when the transactions occurred. Worse still, he did not call evidence of anyone who actually knew what happened. See paragraphs 14 to 17 of his witness statement on oath. His case was doomed to fail, being manifestly speculative and gold digging.

In the final analysis, I find that the allegation made by the Appellant against the well-considered judgment of the lower Court as being perverse and occasioned miscarriage of justice is baseless and discountenanced.

Having resolved the two issues against the Appellant, I find no iota of merit in this appeal and I dismiss it. I now proceed to consider the 1st Respondent’s Notice.

RESPONDENT’S NOTICE
The 1st Respondent Notice was filed on the 12th February, 2019, deemed properly filed on the 18th March, 2019. It was filed pursuant to Order 9 Rule 2 of the Court of Appeal Rules 2016 by which it prays this Court to affirm the judgment of the trial Court on grounds other than those relied upon by the learned trial judge. The 1st Respondent’s issue one (1) is distilled from the said Respondent’s Notice already reproduced supra.

In arguing this issue, the learned 1st Respondent’s Counsel relied on the provisions of Section 16(1) and (2) and Section 69 of the Limitation Law of Lagos State, to submit that the claims of the Appellant before the trial Court was for recovery of land, that is declaration of title to the land in dispute. He referred to the pleadings of the Appellant before the trial Court which showed that cause of action accrued at the expiration of the equitable mortgage and power of attorney executed on the 27th February, 1966 (Exhibit ‘S’) and 28th February, 1967 (Exhibit ‘T’) respectively. The Appellant specifically pleaded that both instruments expired by effluxion of time and the land became unencumbered since the 27th February, 1968, by which time the late Alhaji Sanda was entitled to recover possession of his interest in the land. It was submitted that the right of action accrued on that date, and in view of the provisions of Section 16(2) of the Limitation Law of Lagos State, the right of action will remain extant for twelve years and expired on the 26th February 1980.

It was further submitted that by the Appellant’s pleading,, his father died on the 11th October, 1970 upon which any interest on the disputed land devolved to his estate, and assuming a fresh right of action accrued to the estate from that date, it would have expired by February 1982, that is 12 years afterwards. But the estate only woke up from its slumber in February 2010, almost 30 years after the accrual of the cause of action to it. Learned Counsel submitted that any right of title the Appellant may possibly have had on the land has been extinguished by Section 21 of the Limitation Law of Lagos State. He relied on a host of authority on the effect of limitation law to support his argument, including Omomeji V. Kolawole (2008) 14 NWLR (pt. 1106) 180, Akibu V. Azeez (2003) 5 NWLR (pt. 814), Lamina V. Ikeja L.G. (1993) 8 NWLR (pt. 314) 758 and Eboigbe V. NNPC (1994) 5 NWLR (pt. 347) 659 among others.

The 1st Respondent learned Counsel further drew this Court’s attention to the fact that the 1st Respondent filed an application dated 11th July, 2012 before the trial Court, by which it sought for the dismissal of the Appellant’s suit in limine on the ground that the action was statute barred. The said application was dismissed by the trial Court on the basis that Appellant had pleaded fraud and forgery, which needed to be tried for the parties to prove their respective assertions. The learned counsel contended that the trial Court did not determine the merit of the application, but kept it in abeyance to await trial when same can be proved vis-à-vis the Appellant’s allegation of fraud. It is his submissions that at the conclusion of the trial when the learned trial Judge found that forgery has not been proved, she ought to have pronounced further that the Appellant’s action was statute barred. He pointed out that the trial Judge failed to make this pronouncement that flowed from her findings. He therefore urged upon this Court further affirm the judgment of the lower Court and decree that the Appellant’s right of action has been extinguished by the operation of the cited provisions of the Limitation Law of Lagos State.
The Appellant raised preliminary objection to the competence of the 1st Respondent’s notice on the ground that the issue raised from the said Notice had been litigated and decided upon by the trial Court by its ruling delivered on the 10th May, 2013 dismissing the application of the 1st Respondent to dismiss the Appellant’s suit in limine. The learned Appellant’s counsel argued that since the 1st Respondent has not appealed against the said ruling, it is final, and the 1st Respondent cannot use the back door to vacate the order of the lower Court in that ruling. He posited that the ruling was delivered by a different Judge (Alogba, J) from the Oke, Chief Judge who delivered the final judgment appealed against, as such, the latter lacked the competence to re-open the issue since she could not sit on appeal over the former’s ruling. The said ruling of the lower Court on the limitation of action is binding and extant unless set aside, and it is only if the 1st Respondent appealed against it, that it can be determined and not through Respondent’s Notice.

However, the Appellant’s learned counsel conceded that both he and the counsel of the 1st Respondent canvassed argument regarding the applicability of the limitation law before the trial Court in their respective final written addresses. This argument of the Appellant’s learned counsel is against interest because he effectively admitted that the parties joined issues in their final written addresses on the applicability of the Limitation Law of Lagos State before the trial Court. He also admitted in paragraphs 40 and 41 of the Appellant’s Amended Reply brief (page 9 thereof) that the trial Court in its final judgment did not return any decision on this issue. I think that the parties are in agreement that the trial Court ought to have made a pronouncement on the joined issue. Consequently the objection of the Appellant to the 1st Respondent’s Notice has no basis in the circumstance it is dismissed. I will proceed to determine the 1st Respondent’s notice.

In determining the merit of the 1st Respondent’s notice, let me state from the onset that this Court is clothed with the competence, by virtue of Section 15 of the Court of Appeal Act to assume full jurisdiction over the entire proceedings as the trial Court.

The learned trial Judge having correctly found that the Appellant’s claim of fraud/forgery/misrepresentation of the signature of the father of Appellant was not proved as required by law, the exception to the applicability of the Limitation Law of Lagos State does not apply. In other words, there is no longer any impediment to the application of the said limitation law. Consequently, the learned trial Court ought to have applied the limitation and pronounce the suit statute barred. I therefore find merit in the Respondent’s notice and the issue raised therefrom is resolved in favour of the 1st Respondent. The Judgment of the High Court of Lagos State, delivered on the 10th April, 2018 in respect of Suit No M/144/2010 is hereby affirmed on the ground that the Appellant’s suit was statute barred, having been instituted after the 12 years from the date of the cause of action accrued in contravention of Section 16(1) of the Limitation Law of Lagos State, Cap. L84. Cost of One Hundred Thousand Naira (N100, 000) is awarded to the Respondents against the Appellant.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the erudite leading judgment delivered by my learned brother, Balkisu Bello Aliyu, JCA. I am in full agreement with the reasoning and conclusion in it. I too dismiss the appeal. I abide by the consequential orders decreed in it.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, BALKISU BELLO ALIYU, JCA gratefully obliged me with the draft of the leading judgment which he has just delivered wherein he dismissed the main appeal and upheld the 1st Respondent’s Notice by which the Appellant’s suit in the lower Court was adjudged as statue barred. It is the law, that when a suit is statute barred, the legitimate order that the Court ought to make is one of dismissal.

The leading judgment had dealt with the rather intricate issues which the appeal has thrown up for consideration, and I really do not have anything of value to add to the detailed and comprehensive judgment which my learned brother has delivered.

I too agree that the appeal lacks merit and should be dismissed.
I abide with the consequential order made as to costs.
Appeal is dismissed by me too.

Appearances:

O. I. JOSEPH (SAN) WITH HIM, CYRIL OGBEKENE ESQ, AKIN AKINRINADE ESQ, OLAWALE OKUNOLA ESQ, MICHAEL OGUNKANMI ESQ AND MICHAEL ALIANYI ESQ. For Appellant(s)

J. ODESOLA ESQ. FOR THE 1ST RESPONDENT
MRS. O. A. ODESANYA WITH MRS. R. A. GBADAMOSI FOR THE 2ND RESPONDENT. For Respondent(s)