Administration of Estate

They therefore instituted an action against them along with the Probate Registrar before the High Court of Lagos State by way of Originating Summons filed on 9/7/1998. The appellant was the 2nd respondent. Affidavits and counter affidavits were exchanged between the parties. Before the hearing of the Originating summons, there was an effort to resolve the matter amicably. As a result of negotiations between the parties, Terms of Part Settlement were filed, adopted and made the judgment of the Court on 21/9/1999 (pages 71-73 of the record). Pursuant to the said Terms of Part Settlement, the appellant renounced his position as Administrator of the Estate. The respondents acknowledged receipt of original copies of all the title documents in respect of nine landed properties belonging to their late father hitherto in the possession of the Administrators. The properties were listed in a schedule to the Terms. The property at 13 Onayade Street, Ikorodu Road, Igbobi Lagos was a bone of contention and therefore not included in the Terms. Having regard to the controversial nature of the affidavits before the Court, pleadings were ordered, filed and subsequently amended. One of the administrators, Alhaji Jimoh Arije died and his name was struck out. The present appellant became the 1st defendant while the Probate Registrar became the 2nd defendant.
By their Amended Statement of Claim filed on 4/4/2002, the plaintiffs sought the following reliefs against the defendants:
i) A declaration that property situate at No. 13 Onayade Street, Ikorodu Road, Lagos is owned by Alhaji Garuba Arije (deceased) to the exclusion of any person(s).
ii) A declaration that the property situate at Shifawu Street, Surulere and listed as No. 5, in the Letters of Administration belongs to the said deceased.
iii) An order of interlocutory injunction restraining the 1st Defendant from collecting rents, letting/leasing, disposing or alienating the property situate at No. 13, Onayade Street, Ikorodu Road, Lagos until final determination of this action.
iv) An order compelling the Defendants to render a comprehensive statement of account of the deceased’s estate. Such account is to be prepared by a Chartered Accountant stating income realised from the deceased’s estate since the 1st Defendant took over management and administration of same.
v) An order for possession of property situate at 13, Adebiaye Street, Yaba, Lagos.
vi) An order compelling the 1st Defendant to release all the deceased’s personal documents contained in his brief case kept by the 1st Defendant.

The 1st defendant/appellant filed a Further Amended Statement of Defence and Counter-Claim on 10/3/2005 and sought the following reliefs:
a) A declaration that under and by virtue of the Land Certificate No. 7990 dated 16th October 1971 registered in the Lands Registry, Lagos the 1st Defendant is the registered owner of the property situate at 13, Onayade Street, Igbobi, Lagos.
b) An order declaring the purported register of Alhaji Garuba Arije in the Proprietorship Register of the Land Certificate No, MO 7990 dated 16th October 1971 in the Land Registry, Lagos is irregular, null and void.
c) An order directing the Registrar of Title to delete from the said Proprietorship Register the name of Alhaji Garuba Arije and to replace same with the information contained in No. 2 of the said Proprietorship Register.
d) An order of perpetual injunction restraining the claimants, their agents, servants, privies or otherwise however from interfering or causing to be interfered with the 1st Defendant’s right of ownership in respect of the property situate at 13, Onayade Street, Igbobi, Lagos.
In reaction, the plaintiffs filed a reply to the 1st defendant’s Further Amended Statement of Defence and Defence to Counter Claim on 4/5/2005. They also filed a further Reply on 5/5/2005.

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The matter proceeded to trial. In his defence, the appellant contended that the property at 13 Onayade Street, Igbobi, Lagos belonged to him. That he bought the property in his own name but gave the title documents to his late brother for safe keeping. He stated that it was after his brothers’ demise that he discovered that the name on the title document had been altered to read Alhaji Garuba Arije in place of his own name. It was also his testimony that when the change was discovered, it was agreed by the elders of the family, on the advice of one Dr. M.A. Yesufa, Alhaji Garuba Arije’s solicitor, who had since died, that the property at 13 Onayade Street should remain on the list of properties belonging to the deceased for the purpose of the application for Letters of Administration and that necessary steps to rectify the Proprietorship Register would be taken at a later date. In a considered judgment delivered on 11/10/2006 the plaintiffs’ claims were dismissed while all the reliefs in the 1st defendant’s counter claim were granted in the following terms:
(a) A declaration is made that under and by virtue of the Land Certificate No. M 7990 dated 16th October, 1971 registered in the Lands Registry, Lagos, the 1st defendant is the registered owner of the property situate at No. 13, Onayade Street, Igbobi, Lagos State.
(b) It is declared that the purported registration of Alhaji Garuba Arije in the Proprietorship Register of the Land Certificate No, MO 7990 dated 10th October, 1971 in the Lands Registry, Lagos, is irregular, null and void.
(c) The Registrar of Titles is hereby directed to delete from the said Proprietorship Register the name of Alhaji Garuba Arije and replace same with the information contained in No. 2 of the said Proprietorship Register.
(d) An order of perpetual injunction is hereby made restraining the Claimants, their agents, servants, privies or otherwise howsoever from interfering or causing to be interfered with the 1st defendant’s right of ownership in respect of the property situate at No. 13, Onayade Street, Igbobi, Lagos State.

Being dissatisfied with the judgment, the respondents herein appealed to the Court of Appeal, Lagos Division (the lower Court). The Court allowed the appeal on 7/7/2010 in the following terms:
“From the entirety of the documentary evidence before this Court, this appeal succeeds in Part. The decision of the learned Trial Judge contained in the Judgment of 11 October 2006 granting the reliefs in the counter-claim of the Respondent is hereby set aside. In its stead I enter judgment for the plaintiff as follows:
1. I declare that property situate at No. 13, Onayade Street, Ikorodu Road, Lagos is owned by ALHAJI GARUBA ARIJE (deceased) to the exclusion of any person(s).
2. I declare that the property situate at Shifawu Street Surulere and listed as No. 5, in the Letter of Administration belongs to the said deceased.
3. I order the 1st respondent to render a comprehensive Statement of Account of the deceased estate prepared by a Chartered Accountant stating income realized from the deceased estate from the period when 1st Respondent took over management and administration of same on appointment in 1977 till 1991.
4. I order possession of the property at 13 Adebiaye Street Yaba, Lagos by the Appellant.
5. Cost is assessed and awarded in the sum of N30,000.00 in favour of the Appellant.”
Not surprisingly, the appellant is aggrieved with the decision and has further appealed to this Court vide a notice of appeal filed on 6/10/2010 containing six grounds of appeal.
At the hearing of the appeal on 15/1/2018, KEHINDE OSIBONA ESQ., leading WONUOLA OMONUWA ESQ., on behalf of the appellant adopted and relied on the appellants brief filed on 6/5/2011 in urging the Court to allow the appeal. JEAN CHIMOR ANISHERE ESQ. leading a team of learned counsel adopted and relied on the respondents’ brief filed on 20/6/2011 in urging the Court to dismiss the appeal and affirm the judgment of the Court below.
Learned counsel for the appellant distilled 6 issues for determination of the appeal thus:
(i) Whether in adjudicating upon the competing claims of the parties in respect of property at 13, Onayade Street Ikorodu Road Igbobi, Yaba, the Learned Justices of the Court of Appeal were right to have set up for the parties a case different from the one set up by the parties in their pleadings.
ii) Whether the Learned Justices of the Court of Appeal were right to have formulated or raised and decided an issue suo motu without hearing the parties on such issue so formulated in respect of the property at 13, Onayade Stret, Ikorodu Road, Igbobi, Yaba.
iii) Whether the Learned Justices of the Court of Appeal were not in error when they held that “the Appellants led

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evidence with documents tendered before the Court to establish title. The burden shifted unto the Respondent to impugn on the validity of the documents.”
iv) Whether the Learned Justices of the Court of Appeal were justified in re-evaluating the evidence before the trial Court and substituting their own views in respect of the Appellants credibility.
v) Whether the Learned Justices of the Court of Appeal were not in error to have ordered possession of the property at 13, Onayade Street, Ikorodu Road, Igbobi, Yaba, Lagos in favour of the Respondents contrary to the evidence lead by the Parties.
vi) Whether the Learned Justices of the Court of Appeal were not in error when they held that “the respondents did not lead evidence in line with the method settled in a catalogue of cases of establishing title to the property at Shifawu Street, Surulere, but proceeded to give judgment in favour of respondents.
The respondent also formulated 6 issues as follows:
a) Whether in the light of the facts and testimony adduced, the Appllants can be held to have no estate to inherit in respect of the property situate at No. 13, Onayade Street lkorodu Road, Fadeyi, Lagos.
b) Whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.
c) Whether the 1st respondent was able to prove the allegation of fraud alleged against the deceased.
d) Whether the Appellants are not entitled to a grant of possession of the property situate at 13 Adebiaye Street, Yaba.
e) Whether the Appellants are not entitled to the claims and judgment as stated in the pleadings.
f) Whether the respondents are entitled to judgment on their counter-claim.

I shall determine the appeal on the issues formulated by the appellant. Issues (i) and (ii), which deal with the appellant’s right to fair hearing will be considered together. Issues (iii), (iv) and (vi) on evaluation of evidence will also be considered together, while issue (v) will be considered last.
Issues (i) & (ii)
In support of the first issue, learned counsel for the appellant submitted that it is the duty of the Court to consider the case before it in light of the party’s complaint and to confine itself to the issues submitted to it for adjudication. He referred to paragraphs 14, 15 and 16 of the respondents’ amended statement of claim, wherein they averred as follows:
14. The plaintiffs aver that their deceased father personally purchased the said piece and parcel of land in the name of the 2nd defendant and this culminated in Title No. MO 7990 dated 16th October 1971 issued in the name of the 2nd defendant by the Lands Registry. Certified True Copy of the said Land Certificate is hereby pleaded and same shall be relied upon at the trial.
15. Due to unreliable behaviour later shown by the 2nd defendant, the said deceased had to recover the said land from the 2nd defendant without any form of protest, caveat or complain from the 2nd defendant who knew that the said land all the while belonged to the deceased.
16. Deed of Transfer with Application No. 73/T/76 dated 14 May, 1976 in respect of the said land was filed at Lands Registry, Lagos transferring the said land to the deceased. The said Deed of Transfer is hereby pleaded and Certified True Copy of the said Deed of Transfer shall be relied upon at the trial of this action.

Learned counsel noted that after the death of the 1st defendant, who was the co-administrator of the estate of the deceased, the appellant became the 1st defendant in the suit. He contended that on the side of the respondents, there were two versions of what prompted the transfer of the property to the late Alhaji Garuba Arije. That while CW2 stated that the property was transferred to him when the bullding plan was to be obtained, CW3 testified, in line with the pleading, that the property was transferred to the deceased on account of the appellant’s unreliable behaviour. He argued that on the evidence before the Court, it was clear that the property belonged to the appellant and was duly registered in his name and that the learned Justices of the lower Court erred when they inferred that because the appellant bears a different name from the name on the title document, the signatures must belong to two different persons. He was of the view that the Court had misconceived the case before it and had made out a different case for the parties. He submitted that where a Court misconceives a party’s case and reaches a conclusion based on such misconception, the decision is liable to be set aside. He relied on: Oyewale

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Vs Oyesoro (1998) 2 NWLR (Pt. 539) 663 @ 679; Adejugbe vs. Ologunja (2004) 2 SC (Pt. 2) 44 @ 73. Relying on Shitta-Bey vs FPSC (1981) 1 SC 40 and Adeniji & Ors vs. Tawa Adeniji & Ors. (1972) 1 ALL NLR (Pt. 1) 301 @ 308. He argued that a Judge must be an impartial arbiter between the parties and must not found its decision on any ground not raised by the parties or in respect of which it has not received argument. He argued that such conduct would result in a breach of the affected party’s constitutional right to fair hearing, which would also result in the proceedings being vitiated and set aside.
The arguments proffered in respect of issue (ii), are also in relation to the discrepancy observed by the lower Court between the names Alhaji Wahab Arije, on the one hand, which appears on all the Court processes filed in the trial Court, as well as the Letters of Administration and international passports belonging to the appellant and the name Wahab Iyanda Agbomabini, which appears on Exhibit D, as the original owner of the land. Learned counsel submitted that the issue of identity in respect of the two names did not arise at the trial Court nor at the lower Court. He submitted that the person in whose name the property was purchased had been settled on the pleadings and was not in dispute. He argued that having raised the issue suo motu, the Court was bound to invite the parties to address it on the issue. He cited several authorities in support of the contention that it amounts to a denial of the right to fair hearing where a Court raises an issue suo motu and decides the point without inviting the parties to address it. Among the authorities cited are:Kraus Thompson Org. Ltd. Vs UNICAL (2004) 4 SC (Pt. 1) 65 @ 73; Victino Fixed Odds Ltd. Vs Ojo (2010) 3 SC (Pt. l) 1@ 15.

In response to the above submissions, learned counsel for the respondents rejected the contention that the Court below raised any issue suo motu. He submitted that one of the respondents’ issues at the Court below was“whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.” While conceding that the duty of evaluation of evidence, ascription of probative value thereto and finding of fact thereon, is exclusively that of the trial Court, he submitted that in certain circumstances, where the trial Court has failed to properly evaluate the evidence, especially as regards the weight to be attached to documentary evidence, an appellate Court is in as good a positon as the trial Court to do so. See: Ebba Vs Ogodo (1984) 1 SCNLR 372; A.G. Oyo State Vs Fairlakes Hotel Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255; Atolagbe Vs Shorun (1985) 4 SC 250 @ 285; Ebenehi & Anor. Vs The State(2009) 2 – 3 SC (Pt. l) 109. He submitted that the lower Court undertook the exercise in response to the respondents’ prayer for it to re-evaluate the documentary evidence. He also noted that in his pleadings and testimony at the trial Court, the appellant contended that the following documents were forged:
Exhibit A – CTC of Deed of Transfer in respect of 13 Onayade Street, Igbobi, Lagos;
Exhibit B – CTC of Proprietorship register;
Exhibit C CTC of application for first registration; and
Exhibit D – CTC of Statutory Declaration – Form 3.
That he tendered his international passports, Exhibits R and R1, which contain the names Alhaji Abdulwahab Arije and Mr. Abdulwahab Arije respectively, in proof of the assertion. He submitted that it was under cross-examination that the appellant stated that he bears both Alhaji Abdul Wahab Arije and Abdul Wahab Iyanda Agbomabini. Citing the case of LAGGA Vs Sarhuna (2008) 6 – 7 SC (Pt. 1) 101 @ 123 – 124, he submitted that where documentary evidence has been tendered, the Court has a duty to properly evaluate them and draw necessary inferences therefrom and that where the appellate Court concludes that the learned trial Judge did not properly carry out its duty, an appellate Court would perform the exercise.
He conceded that the Apex Court would not lightly interfere with the findings of the lower Court where such findings are reasonably justified by the evidence and no error in law, substantive or procedural, which would lead to a miscarriage of justice, has been made. He submitted that having rightly held that the appellant failed to prove the allegation of fraud against the respondents, the trial Court erred in holding that Exhibits A and B were invalid because they were not executed by the appellant. He submitted that it was this finding that prompted the respondents to invite the lower Court to take a

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holistic view of the documentary evidence to determine whether or not the finding was perverse. He submitted that the Court below was right when it held that the appellant bears a different name from the name on Exhibits A,B, C and D vis a vis Exhibits R and R1 and that the presumption is that the signatures belong to two different persons. He submitted further that the appellant participated in the process that led to the listing of the property at 13 Onayade Street as part of the estate of the deceased and did not take any action, such as making a report of forgery or any other complaint to the Lands Registry. He contended that Exhibits A, B, C and D are unequivocal as to the fact that the transaction was between Abdul Wahab Iyanda Agbomabini and the deceased and that the appellant did not plead that his names are Abdul Wahab Iyanda Agbomabini. He submitted that once the appellant was unable to prove that Exhibits A and B were fraudulent, the documents remained intact and unequivocal. He noted that the Court’s findings did not touch on the credibility of the witnesses but on the weight to be attached to the documents tendered. He submitted that where the contents of a document are clear and unambiguous, oral or parole evidence is not admissible to alter or contradict it. He referred to: Bunge Vs Governor of Rivers State (2006) 6 SC 81 @ 115; R,E,A.N. Ltd. & Ors. Vs Aswani Textile Ind. Ltd. (1991) 2 NWLR (Pt.179) 639; Olanlege Vs Afro Continental Nig. Ltd.(1996) 7 SCNJ 145 @ 155. He reiterated the fact that the Letters of Administration clearly and unambiguously listed the property at 13 Onayade Street, Lagos as belonging to the deceased.
On the second issue, as to whether the lower Court raised and resolved an issue suo motu, learned counsel answered in the negative. He repeated his arguments in respect of issue (i). He submitted further that the aspect of the judgment complained of at pages 466 – 467 of the record is a finding on issues raised in the appeal and not an issue formulated suo motu by the Court. He maintained that the issue of denial of fair hearing does not arise.
Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution.See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290.
All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.
The first issue to resolve is whether the lower Court made a case for the parties that they did not make for themselves, thereby leaving its exalted position as impartial arbiter and descending into the arena of conflict. It should be remembered that the appeal before the Court below was at the instance of the present respondents. Of particular relevance to the issues under consideration are issues 1, 2 and 3 formulated by them, which are as follows:
“1. Whether in the light of the facts and testimony adduced, the appellant can be held to have no estate to inherit in respect of the property at No. 13 Onayade Street, Ikorodu Road, Fadeyi, Lagos.
2. Whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.
3. Whether the 1st respondent was able to prove the allegation of fraud against the deceased.”

The Court considered the three issues together. Before considering how the issues were resolved, it appears to me to be quite obvious that by issue 2, the appellants (now respondents) called upon the lower Court to determine whether the

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learned trial Judge properly appraised the documentary evidence before him. It is well settled that the evaluation of evidence is primarily the exclusive preserve of the trial Court, which has the unique opportunity of seeing and hearing the witnesses testify and of observing their demeanour. However both the trial Judge and the appellate Courts have equal right to evaluate documentary evidence. Where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just Conclusion. See: Gonzee Nig. Ltd. vs. Nigerian Educational Research and Devt. Council & Ors. (2005) 13 NWLR (Pt. 943) 634; Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745; Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308; Rev. King vs The State (2016) LPELR-40046 (SC) 1 @ 49 A D.

By paragraphs 14 – 16 of their Amended Statement of Claim (reproduced earlier in this judgment), the respondents claimed that the property in dispute belonged to their late father but was originally registered in the appellant’s name. They further averred that the property was subsequently recovered from him, without protest, when he exhibited unreliable behaviour. They pleaded that the recovery was evidenced by a Deed of Transfer vide an application No. 73/T/76 dated 14/5/1976. In paragraphs 23-26 of the 1st defendant/appellant’s Further Amended Statement of Defence at page 252 of the record, he pleaded thus:
23. The 1st defendant avers that under and by virtue of a temporary receipt, the 1st defendant purchased through the Deceased, the property situate at 13 Onayade Street, Igbobi, Lagos. The 1st defendant shall at the trial of the suit herein rely on the said receipt.
24. The 1st defendant aver that a Deed of Conveyance dated 4 February 1969 was executed in favour of the 1st defendant by the vendor of the said parcel of land. The 1st defendant shall at the trial of the suit herein rely on the said Deed of Conveyance.
25. The 1st defendant further avers that the said conveyance referred to in paragraph 24 above was duly registered at the Lands Registry with title No. MO 7990 and a Land Certificate were (sic) issued.
26. The 1st defendant avers that unknown to him, the Deceased fraudulently represented to the Registry of Lands that the said property situate at 13 Onayade Street, Igbobi, Lagos had been sold to him by the 1st defendant and the Register was altered to delete the 1st defendants name in place of the deceased.
PARTICULARS OF FRAUD
(a) The Registration Form was forged.
(b) The transfer form was forged.
(c) The registration documents were fraudulently received by the said Alhaji Garuba Arije on behalf of the 1st Respondent.”

PW1, Olaonipekun Cole, a Higher Investigation Officer (Litigation), serving with the Lands Registry under the Lands Bureau, Alausa, Lagos was subpoenaed at the instance of the plaintiffs/respondents at the trial Court to tender certain documents in support of their pleadings. He tendered Exhibit A, a CTC of the Deed of Transfer.
The transfer in Exhibit A was registered in the Proprietorship Register, Exhibit B, as Title No. MO 7990.
PW1 testified at pages 142 and 143 of the record that:
“The first registered owner of the property on Exhibit B is one Alhaji Abdul Wahab Agbomabini. The name of the first registered owner was cancelled as a result of the transfer in Exhibit A. Before the name of the first registered owner on Exhibit B, he has to fill and sign an application form for first registration of title.”
A certified true copy of Form 1A (application for first registration) was tendered through the witness as Exhibt C. He continued his testimony as follows:
” The person presenting Exhibit C must fill and sign a Form 3 i.e. Statutory Declaration before completion.”

A certified true copy of Form 3 was admitted in evidence and marked Exhibit D. At pages 16 – 17 of the record, the trial Court, in reviewing the evidence before it, stated thus:
“On issue of ownership, CW1, Olaonipekun Cole testified that the Record in the Lands Registry, Alausa, Lagos shows the 1st Defendants name as the first registered owner of the property by virtue of Exhibit A but transfer

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or proprietorship is effected in Exhibits B, Exhibits C and D are documents relating to the first registration and statutory declaration before completion of first registration. The 1st defendant denied signing Exhibits A, C and D and urged me to compare those signatures with his in Exhibit R and R1.
Clearly the evidential value to be placed on the documents in respect of which the appellant disputed his signature, was a live issue before the trial Court. At page 29 of the record, the learned trial Judge extensively examined the signatures on Exhibits A, C and D which were disputed by the appellant against Exhibits H, R and R1, which he admitted bears his signature. The Court was satisfied that the 1st defendant had successfully impeached Exhibits A, C and D and held that in the circumstance, Exhibit A could not have validly transferred any estate to the deceased father of the plaintiffs. It is significant that the learned trial Judge found that the 1st defendant/appellant failed to prove the allegation of fraud in respect of the same documents made against the deceased. As stated earlier, at the conclusion of the trial, the respondents’ claims were dismissed and judgment entered in favour of the appellant in terms of his counter claim.
I also pointed out earlier that one of the issues before the lower Court was “whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.” The Court in summarizing the arguments of learned counsel, stated inter alia as follows:
It is the contention of learned counsel [for the Appellants] that Exhibits A, C & D and the international passports tendered were not properly appraised by the lower Court before arriving at a decision. It is his further submission that the allegation of a crime must be proved beyond reasonable doubt. He contended that there is nowhere in the testimonies of all the witnesses called where it was shown that any fraudulent act or registration was reported at the Lands Registry.
Learned counsel for the Respondent, Mr. Kehinde Osibona submitted that any transfer or registration of any interest in land consequent upon a forged disposition would be absolutely void and confers no estate on such a registered owner It is his contention that the 1st respondent has a better knowledge of the issue as he bought the property for himself and the evidence of the Appellants’ 2nd and 3rd witnesses in respect of the transfer of the property is hearsay and therefore inadmissible.
He referred to S. 108 (1) of the Evidence Act and submits that the signatures of the 1st respondent on Exhibit H, R and R1 contradict the signatures on the Deed of Transfer Exhibit A and that it is settled law that where there was no proper transfer, the registration of the Deceased (sic) was void.”

From all that has been observed above, it is crystal clear that the Court below did not set up a case for parties different from what they presented, nor did it raise the issue regarding the difference between the appellant’s names as they appear on Exhibits A, C and D on the one hand and Exhibits R and R1 on the other, suo motu. The respondents, as appellants before the lower Court, had alleged that the trial Court did not properly appraise or ascribe probative value to the documentary evidence before it. Their contention was that the trial Court having found that the appellant failed to prove the allegation of fraud, the documentary evidence spoke for itself, and the Court therefore erred in holding that they did not establish their claims. In other words, that the Deed of Transfer in favour of their late father, duly registered at the Lands Registry, was valid and subsisting. In resolving the issue, the lower Court was bound to take cognisance of the fact that the names on Exhibits A, C and D are different from the names on Exhibits R and R1, the international passports belonging to the appellant. Both learned counsel addressed the Court on the legal implications. There was, in my considered view, no breach of the appellant’s right to fair hearing.
I therefore hold that there is no merit in issues (i) and (ii). They are accordingly resolved against the appellant.
Issues (iii), (iv) and (vi)
With respect to issue (iii), learned counsel for the appellant relied on Section 137 (1) of the Evidence Act in submitting that having regard to the state of the pleadings, particularly paragraphs 14, 15 and 16 of the Amended Statement of Claim, the onus was on the respondents (as plaintiffs) to prove that the property in dispute, which was purchased by their father in the appellant’s name, was later transferred back to him vide Exhibit A, a certified true copy of the Deed of Transfer. He submitted that the appellant having denied signing the document, the onus was on the respondents to plead or call the attesting witnesses to prove that he in fact signed same. He submitted that the respondents could not be said to have established their title based on documentary evidence in view of contradictory evidence given by

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their witnesses. He noted that CW3 and CW2 gave different reasons for the transfer of the property to their father whereas in Exhibit A it is stated that the deceased purchased the property from the appellant for the sum of N4,000.00. Relying on the cases of Yusuf Vs Adegoke (2007) 4 SC (Pt. 1) 126 @ 160 & 164/165 and Okhuarobo Vs Aigbe (2002) 5 SC (Pt. 1) 141, he submitted that the law is trite that parties must be consistent in presenting their case to the Court. He submitted that on the other hand, the appellant gave convincing evidence, which was unchallenged, of having purchased the property in his name through Exhibits P and Q, and that in Exhibit B, the proprietorship register, he was registered as the first owner. He submitted that his evidence under cross examination that he is also known as Abdul Wahab Agbomabini, ought to have been accepted by the lower Court as sufficient proof of that fact. He submitted that in a claim for declaration of title, the onus is on the claimant to prove his entitlement to the reliefs sought and that he must rely on the strength of his own case and not the weakness of the defence. He noted that the exception to the general rule is where the defendants’ case supports the claimant’s and contains evidence which the claimant may rely on, in which case the claimant is entitled to utilise such evidence. He referred to: Kodilinye Vs Odu 2 WACA 336 @ 337; Ajiboye Vs Ishola (2006) 6 – 7 SC 1 @ 17; Kaiyaoja Vs Egunla (1974) 12 SC 51; Odi Vs lyala (2004) 4 SC (Pt. 1) 1@ 20.

In support of issue (iv), learned counsel submitted that the duty of appraising evidence is pre-eminently that of the trial Court. He contended that the lower Court was wrong to have re-evaluated the evidence and to have substituted its own views for those of the trial Court. He referred to several authorities, including: Anyanwu & Ors. Vs Uzowuaka & Ors. (2009) 6 – 7 SC 44 @ 54 – 55; Egri Vs Ukperi (1974) 1 NMLR 22: Ebba Vs Ogodo & Anor.(1984) 4 SC 84; Oyewole Vs Akande (2009) 7 SC 137 @ 156 – 152. He submitted that the observation of the lower Court that the appellant participated fully in the application for the grant of Letters of Administration, which led to the listing of the property in dispute as part of the estate of the deceased and failed to take any steps to challenge the said listing, failed to take cognisance of the pleading in paragraphs 27 and 28 of the Further Amended Statement of Defence and Counter claim and evidence led in support thereof to the effect that the listing was not challenged based on the advice of the respondents’ father’s solicitor. He submitted that the averments were unchallenged and therefore the onus of proof was discharged upon minimal proof. He relied on: SPDC Nig. Ltd. Vs Edamkue(2009) 6 7 SC @ 100; Kuforiji vs. VYB Ltd. (1981) 6 7 SC 25 @ 46.

In respect of issue (vi), learned counsel argued that the respondents similarly failed to establish their entitlement to a declaration in respect of the property at Sifawu Street, Surulere, Lagos.
In response to the submissions above, learned counsel for the respondents submitted that where the trial Court did not properly evaluate the evidence before it, an appellate Court has the power to re-evaluate it. He relied on Bunge Vs Governor of Rivers State (supra), Salako vs. Dosunmu (1997) 7 SCNJ 124; UDC Ltd. vs. D.A. Hammond (Nig) Ltd. (1998) 9 NWLR (Pt. 565) 340; Ademolagu vs Adani Pekun (1999) 1 NWLR (Pt. 587) 440. He submitted that the respondents’ witnesses all testified that (i) the properties listed in the Letters of Administration belong to their father; (ii) that the property in dispute is registered in the name of their deceased father at the Lands Registry in Lagos; and (iii) that the appellants signature had never been regular, as shown in Exhibits A, B, C, D, R and R1. He submitted that the appellant and his witnesses failed to prove fraud at the Lands Registry in relation to the property in dispute; that he did not at any time lodge a complaint alleging fraud at the Lands Registry; that he failed to prove that he did not execute Exhibit A. He submitted that the trial Court is not entitled to pick and choose which evidence to assess, as was done in this case and that in the circumstances, the lower Court had the power to re-evaluate the evidence in order to remedy the situation. He referred to: Onisaodu Vs Elewuju (2006) 7 SC (Pt. 2) 45 @ 50; Mogaji Vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR (pt.8) 393.

With regard to the property at Sifawu Street, Surulere, Lagos, learned counsel submitted that in his testimony before the trial Court (page 362 lines 14 – 15 of the record), the appellant stated that he knew nothing about the property. He submitted that having not contested the Letters of Administration wherein the property at Sifawu Street was listed as belonging to the deceased, there is no basis for the appellant’s

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complaint. He submitted that the lower Court merely declared the correct position as to the ownership of the property.
The law is settled, as rightly submitted by learned counsel for the appellant, that a claim for declaration of title may be proved in any one of the following ways:
1. By traditional evidence;
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.
See: Idundun Vs Okumagba (1976) 9 – 10 SC 227 @ 246; Nkado Vs Obiano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 – 11 SCNJ 1 @ 6.
It is equally trite that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Kodilinye Vs Odu 2 WACA 336 @ 337; Onwugbufor vs Okoye (1996) 1 NWLR (Pt. 424) 252; Shittu vs. Fashawe (2005) 7 SC (Pt. II) 107; Nruamah & Ors vs. Ebuzoeme & Ors. (2013) 1 SC 31 @ 55 56.

In the instant case, the respondents relied on documentary evidence, particularly the Letters of Administration, Exhibit E and Exhibits A, B, C and D. The appellant denied signing Exhibits A, B, C and D and contended that the documents were forged. He tendered his international passports, Exhibits R and R1, to enable the trial Court compare the signatures therein with the disputed signatures. The Court held that the appellant failed to prove the allegation of forgery. The respondents tendered evidence relating to the transfer of the property situate at 13 Onayade Street, Igbobi, Lagos and its due registration at the Lands Registry. They also tendered the Letters of Administration granted to the appellant and his now deceased co-Administrator, wherein the property was listed as belonging to the late Alhaji Garuba Arije. The appellant was unable to impugn the documents pertaining to the registration of the property nor was he able to prove that his signature on the Deed of Transfer was forged. Olaonipekun Cole, the subpoenaed witness who testified as CW1, stated categorically that his office did not receive any report of fraud in connection with the registration of the property. The appellant was also unable to proffer any satisfactory evidence as to why he listed the property as belonging to the deceased when he applied for the grant of the Letters of Administration (Exhibit E). None of the elders who attended the meeting where he was allegedly advised to defer any action relating to the rectification of the Proprietorship Register was called as a witness. In any event, oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded. See: Bunge vs. Governor of Rivers State (2006) ALL FWLR (pt. 325) 1;Egharevba Vs. Osagie (2009) 12 SC (Pt. III) 123; A.G. Bendel State vs. UBA Ltd. (1986) 4 NWLR (Pt. 37) 5. See also Section 128 of the Evidence Act 2011. According to Exhibit E, the property situate at 13 Onayade Street, Igbobi, Lagos belonged to the late Alhaji Garuba Arije. The Court below, at pages 465 – 469 of the record, held thus:
“When a finding of fact is made in respect of documentary evidence and it is contradictory or perverse, the Appeal Court will have to intervene to set aside such finding and make its own finding as justified by the evidence.
… The learned trial Judge found that Exhibit A, C and D have been impeached by the 1st respondent’s evidence, regardless of the evidence of the first witness for the appellant Olaonipekun Cole who told the Court that there was no report of fraud. The lower Court however held that the Exhibit did not validly transfer any estate to the claimants deceased father having not been executed by the 1st respondent. Exhibit A is a document on transfer of Leasehold land under the Registration of Titles Act. The document is unambiguous. It shows the Deed of Transfer to Alhaji Garuba Atanda Arije by Abdul Wahabi Iyanda Agbomabini of 19 Docemo Street, Lagos in the presence of two witnesses, one Dauda Atanda and Caleb Niyi Oguntunde. None of these witnesses was pleaded or called to testify on the handwriting.
The purpose of witnessing the signing of a document is for corroboration of the signatures therein in case of a dispute and the contents. More importantly is the fact that the 1st respondent in evidence in chief did not tell the Court below that he has two names, Alhaji Wahab Arije and Alhaji Wahab Iyanda Agbomabini until he was cross examined on that point. The signature on Exhibit A is that of Abdul Wahab Iyanda Agbomabini. This is a different name from the names on the two international passports – Exh. R and R1, which the learned trial Judge relied on to compare the signatures therein with the

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signature on Exhibit A and C. The two international passport bears (sic) the name of Alhaji Abdul Wahab Arije not Abdul Wahab lyanda Agbomabini. In Exhibit D, the registration document, the signature on Exhibit A and C are similar and the same person Abdul Wahab lyanda Agbomabini made the declaration and signed. Exhibit D contains the name of the original owner of the land. The name of the 1st respondent in all the processes filed in the Court below, inclusive of Exhibit E, the Letter of Administration and the International passports Exhibits R and R1 had his name clearly written as Wahab Arije not Abdul Wahab lyanda Agbomabini.
Therefore, if the names are not the same as is obvious, having not pleaded they are, the natural inference is that they are not the same person and the incidental presumption is that the different signatures found by the learned trial Judge is in respect of two different names. The signature on Exh. A, C and D are similar with the last name clearly written Agbomabini unlike the 1st respondent’s signature which style does not reflect the name.
The learned trial Judge discounted the evidence of PW1. This witness works in the Lands Registry and was subpoenaed to Court and he tendered Exhibit A. Exhibit B, the copy of the Register was tendered through him during cross examination. Exhibit B on the second page reflects the cancellation of the name of Abdul Wahab lyanda Agbomabini and the transfer to Alhaji Garuba Atanda Arije in 1976
PW1 set out the procedure that lead (sic) to registration of titles. Once fraud is not reported in the Registrar (sic), the presumption is that the registration is in order. PW1 in evidence stated that no report of fraud was made in the Registrar (sic: Registry)..
The learned trial Judge on the basis of the uncontradicted documentary evidence tendered in Court rightly found the signatures on Exh. A, C and D were not the same as the one in Exh, R and R1 but erred when he held that Exhibits A and B were invalid having not been executed by the 1st defendant (now 1st respondent). The reason is obvious. The 1st respondent bears different name from the name on Exhibit A, B, C and D. The presumption is that the signatures are that of two different persons.”
At page 441 of the record, the Court concluded on the issue as follows:
“The learned trial Judge rightly found that the 1st respondent failed to prove the offence of fraud alleged against the deceased in respect of Exhibits A & B. Surprisingly, the learned trial Judge, having found the allegation of fraud was not proved beyond reasonable doubt, still proceeded to dismiss the claim of the appellant[s]. Exhibit A is the Deed of Transfer which the 1st respondent claimed was fraudulently obtained. If he could not establish the allegation of fraud, the documents Exhibit A & B remain intact and unequivocal… In light of the foregoing, I resolve Issues 1, 2 and 3 in favour of the appellant).”

I have reproduced the finding of the lower Court in detail, as it represents a thorough analysis and proper resolution of the issues canvassed before it. I am of the view that the findings are unassailable. It will be recalled that the appellant filed a counter claim wherein he not only sought a declaratory relief, but also made an allegation of forgery. In respect of the declaratory relief, being a claimant, he is subject to the same standard of proof as the respondents, which he failed to discharge.
As regards the allegation of forgery, he was bound to prove it beyond reasonable doubt. There are concurrent findings of fact by the two lower Courts that he failed to discharge the burden of proof in that regard.
With regard to Issue (vi), I also agree with learned counsel for the respondents that the property at Sifawu Street, Surulere, Lagos is listed as No. 5 in the list of properties belonging to the deceased contained in Exhibit E, the Letters of Administration. Having stated that he knew nothing about the property, there no basis for his complaint against the finding of the Court regarding same. I am not persuaded to interfere with the sound reasoning of the Court below. Consequently, the issues under consideration are without merit and are accordingly resolved against the appellant.
Issue (v)
The appellant’s contention under this issue is that the lower Court ought not to have made an order granting possession of the property at 13 Adebiaye Street Yaba, Lagos, in favour of the respondents having regard to his evidence before the trial Court that he had released the property to the respondents and their own evidence to the effect that they are already in possession of the property. He submitted that the Court does not make an order in vain.

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Learned counsel for the respondent submitted that the title documents in respect of No. 13 Adebiaye Street were released to the respondents as a result of the part resolution of the dispute between the parties evidenced by the Terms of Part Settlement entered as the judgment of the trial Court on 21st September, 1999. He submitted that the consent judgment is binding on the parties and that the trial Court, in holding that they were not entitled to a grant of possession of the property, raised an issue that had already been determined and settled by the said consent judgment. He noted that while the appellant had released the title documents in respect of the property, he was still in possession.
The Terms of Part Settlement between the parties can be found at pages 71 – 73 of the record. In paragraph 2 thereof, the respondents acknowledged receipt of the original copies of all the title documents to the landed property belonging to their late father, hitherto in the possession of the Administrators. The properties, with the exception of the property at 13 Onayade Street, Igbobi, Lagos, are listed in subparagraphs (a) to (g) in the schedule thereto. The property at No. 13 Abebiaye Street, yaba, Lagos is listed in sub-paragraph (d). Paragraph 3 states thus:
“That the respondents having delivered the said documents to the said properties to the applicants have no interest whatsoever in the management and control of the Estate of Alhaji Garuba Arije (Deceased).
A consent judgment is binding between the consenting parties and their privies and is effective in respect of the matters settled therein in the same manner as any judgment given thereafter in respect of matters fully fought out to the end. See: Vulcan Gases Ltd vs. Gesellschaft Fur Industries Gassverwertung A.G. (G.I.V) (2001) 9 NWLR (Pt. 719) 610; (2001) LPELR 3465 (SC) 1 @ 50 51 D A; Talabi Vs Adeseye (1972) 1 All NLR (Pt. 2) 255. The Terms of Part Settlement” was made the judgment of the Court on 21/9/99. One of the reliefs sought by the respondents in their Amended Statement of Claim was for “an order for possession of the property situate at 13 Adebiaye Street, Yaba, Lagos.” The learned trial Judge refused this relief on the ground that the evidence of the appellant that he had handed over the property to the respondents was unchallenged and that it is listed as item No. 2 in Exhibit E. The lower Court was of the view that having made the Terms of Part Settlement the judgment of the Court, the order for possession of 13 Adebiaye street was incidental to the release of the title documents and ought to have been granted. I agree with their Lordships. In any event, the appellant has not shown that he has suffered any miscarriage of justice by the said order. I resolve this issue against him.
In conclusion, I hold that this appeal is devoid of merit. It is hereby dismissed. Costs of N250,000.00 are awarded against the appellant and in favour of the respondents.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading the Judgment just delivered by my learned brother Kekere-Ekun, JSC. I agree with my Lord’s conclusion that the appeal lacks merit.
I hereby dismiss the appeal. I abide by all orders made in the leading Judgment.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Kekere-Ekun, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal as I have nothing more to add.
Appeal dismissed.
I abide by the consequential orders in the lead judgment including the order on costs.
KUMAI BAYANG AKA’AHS, J.S.C.: The bone of contention in this appeal is the property situate at No. 13 Onayade Street, Igbobi, Lagos which was registered under title No. MO 7990 at the Lands Registry Lagos in the name of the 1st Defendant (now appellant). The Plaintiffs (now respondents) claimed that the property belonged exclusively to their late father, Alhaji Garuba Arije, who purchased the parcel of land in the name of the 1st Defendant but due to his unreliable behaviour decided to recover it from him. A Deed of transfer dated 14 May, 1976 was filed in the Lands Registry Lagos leading to the rectification of the Register of titles to reflect the transfer.
The 1st defendant (appellant) on his part said he purchased the property in his name and handed over the title documents to his late brother for safe keeping but it was after his brother’s demise that he discovered the property had been transferred to the deceased and his (1st defendant/appellant’s) name removed from the register of titles. The pleadings depicting the stand of the plaintiffs are contained in paragraphs 13, 14, 15, 16, 17, 18 and 19 of the Amended Statement of Claim and paragraph 9 of the Reply to the Amended

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Statement of Defence and Counter-claim. The position of the 1st Defendant is reflected in paragraphs 23, 24, 25, 26, 27 and 28 of the Further Amended Statement of Defence and Counter-claim. The said pleadings are reproduced as follows:
“13. The Plaintiffs contend that the property situate at No. 13 Onayade Street, lkorodu Road, Lagos and listed as No. (6) in the said Letters of Administration belongs to their deceased father, Alhaji Garuba Arije to the exclusion of the 1st Defendant or any other person(s), and the 1st Defendant has been collecting rents in respect of the said property as an Administrator of the deceased estate.
14. The Plaintiffs aver that their deceased father personally purchased the said piece and parcel of land in the name of the 1st defendant and this culminated into Land Certificate with Title No. MO 7990 dated 16th October, 1971 issued in the name of the 1st Defendant by the Lands Registry. Certified true copy of the said Land Certificate is hereby pleaded and same shall be relied upon at the trial of this action.
15. Due to unreliable behaviour later shown by the 1st Defendant, the said deceased had to recover the said land from the 1st Defendant without any form of protest, caveat or complaint from the 1st Defendant who knew that the said land has all the while belonged to the deceased.
16. Deed of Transfer with application No. 73/T/76 dated 14th May, 1976 in respect of the said land was filed at Lands registry, Lagos transferring the said land to the deceased. The said Deed of Transfer is hereby pleaded and certified true copy of same shall be relied upon at the trial of this action.
17. The deceased thereafter commenced building on the said piece of land which building was not completed as at the time of his death. Approved building plans and other documents in respect of the building in the deceased’s name are presently with the 1st defendant and notice is hereby given to him to produce original of the documents.
18. The Plaintiffs aver that some of the monies realised from the estate of the deceased were used to complete the building on the said land by one of the deceased friends Alhaji Daramola and the 1st Defendant.
19. The 1st Defendant voluntarily applied for the said Letters of Administration and supplied information to the satisfaction of the Probate registrar, that all the properties listed in the Letters of Administration belonged to the deceased, the building situate at No. 13, Onayade Street, Ikorodu Road, Lagos and listed as No. 6 in the said Letter of Administration inclusive.
REPLY TO AMENDED STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM
9. Contrary to paragraphs 23, 24, 25, 26 and 27 of the 1st Defendant’s Amended Statement of Defence, the Plaintiffs aver as follows:
(a) That the landed property situate at 13, Onayade Street, Igbobi, Jibowu, Lagos was purchased in the 1st defendant’s name by Alhaji Garuba Arije (deceased) and the 1st defendant was to hold same in trust for the said deceased.
(b) The 1st defendant on the request of the deceased voluntarily transferred the said landed property to the deceased long before the death of the deceased without any form of protest, caveat, complaint or defiance by the 1st defendant.
(c) The deceased did not fraudulently register the said landed property in his name. Change of the registered owner of the property was done with the full co-operation and consent of the 1st Defendant who knew all along that the said landed property belonged to the deceased.
(d) The Deceased had developed the said landed property and same was almost completed for occupation before his death and the 1st defendant knew and was aware of this and he did not protest.”

In the further Amended Statement of Defence and Counter-claim, the 1st Defendant denied paragraphs 13, 14, 15, 16, 17, 18, 19 and 20(a)(b) and 21 of the Statement of Claim and averred as follows in paragraphs 23, 24, 25, 26, 27 and 28:
“23 The 1st Defendant avers that under and by virtue of a temporary receipt the 1st Defendant purchased through the deceased the property situate at 13 Onayade Street, Igbobi, Lagos. The 1st Defendant shall at the trial of the suit herein rely on the said receipt.
24. The 1st Defendant avers further that a Deed of Conveyance dated 4th February, 1969 was executed in favour of the 1st Defendant by the Vendor of the said parcel of land. The 1st Defendant shall at the trial of the suit herein rely on the said Deed of Conveyance.
25. The 1st Defendant avers further that the said conveyance referred to in paragraph 24 above was duly registered in the Lands Registry with title No. MO 7990 and a Land Certificate were issued.
26. The 1st Defendant avers that unknown to him the Deceased fraudulently represented to the Registry of Lands that the said property situate at 13, Onayade Street, Igbobi, Lagos had been sold to him by the 1st Defendant and the Register was

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altered to delete the 1st Defendant’s name in place of the deceased.
PARTICULARS OF FRAUD
(a) The Registration form was forged.
(b) The transfer form was forged.
(c) the Registration documents were fraudulently received by the said Alhaji Garuba Arije on behalf of the 1st Defendant.
27. The 1st Defendant states that this fraudulent registration does not have his signature and was not known to him until after the death of the deceased in 1977 when this was revealed and the entire family appealed to the 1st Defendant to seek the Deceased Solicitors advice for rectification of the Deeds. The 1st Defendant shall at the trial of the suit rely on the 1st Defendant’s international passports Nos. 155124 and B 144231 respectively.
28. The said deceased Solicitor, Dr. M. A. Yesufa (Deceased) advised that the deceased having changed the proprietor register to his name and his subsequent death it would only take the Administrators of his estate to rectify the register and that the property should be listed in the application for grant of Letters of Administration.”
It is quite amazing that the appellant who claimed ignorance of the transaction which led to the deleting of his name in the Register of Titles and the substitution of the deceased’s name would readily accept the advice given by the deceased Solicitor to bid his time and await the issuance of the Letters of Administration before he would take the necessary steps to rectify the Register of Titles and restore his name as the owner of No. 13 Onayade Street, Igbobi, Lagos. This is in clear conflict with his position as an Administrator or personal representative of the deceased’s estate in view of his obligation to act in the beneficiaries best interest. It is unimaginable that the appellant, who claimed to have purchased the property, and handed over the title deeds to the deceased for safe keeping, only for the latter to fraudulently use the said documents entrusted to him to effect a rectification of the Register of Titles to the appellants detriment, would still agree to an arrangement that the property was part of the deceased estate. It is a rule of universal law that if a man either by word or by conduct has intimated that he consents to an act which has been done and that he would offer no opposition to it, although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who had given faith to his word, or to the fair inference to be drawn from his conduct. See:Yusuff v. Dada & 3 Ors. (1990) 21 NSCC (Pt. 3) 125 at 143 which followed Morayo v. Okiade 8 WACA 46 at 47 – 48 where the rule as to estoppel by silence or standing by laid down in the case of Caincross v. Loriner (1860) 3 LT 130 was applied.
It is on account of this that I fully endorse the judgment of my learned brother, Kekere-Ekun JSC that the appeal is lacking in merit and therefore should be dismissed with costs assessed at N250,000.00 against the appellant and in favour of the respondents. Appeal is accordingly dismissed.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead Judgment delivered by my learned brother, Kekere-Ekun, JSC, and I agree with him that the appeal lacks merit. I abide by the consequential orders made in the lead Judgment.

The respondent, as plaintiff instituted suit No.PHC/341/87 in the High Court of Rivers State, holden at Port Harcourt in which he claimed the following reliefs in the Statement of Claim:
1. A declaration that the plaintiff who is the next of kin of Chief Christian O. Amadi (deceased) is entitled to the grant of letters of Administration in respect of the Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
2. A declaration that the plaintiff is entitled to the Assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No. 3 Andoni Street, Gborokiri, Port Harcourt.
3. An order revoking and/or nullifying the Letters of Administration dated 15/2/82 purportedly granted to the Defendant in respect of the said Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
4. An Order for the Defendant to account for all the rents he wrongly collected from the tenants in the premises from 23/4/80 (when his fathers interest in the property ceased to the date of judgment and payment of the same over to the estate of Chief Christian O. Amadi (deceased).
5. An order of perpetual injunction to restrain the Defendant and/or his servants and agents from interfering with the said property.”
The above claim of the present respondent is based on an assignment of the land in dispute to his late brother, Chief Christian Amadi.
The appellant, however contended that the property in issue was not assigned by his late father, late John Amabibi Nsirim and that the said late John Amabibi Nsirim granted a Power of Attorney to a donee over the said property thereby having nothing left to assign to the privy of the respondent and that the respondent not being armed with Letters of Administration at the time the suit was commenced but suing as the next of kin of his late father, lacked locus standi to institute the action.
Though the High Court granted relief No 2 supra; an order revoking and/or nullifying the letters of Administration dated 15/12/82; the Court gave Judgment to the defendant/appellant herein on the ground that his father having granted a Power of Attorney to another, had nothing left to assign to the brother of the plaintiff//respondent herein. The Court, however, failed to consider the issue of locus standi of the plaintiff/respondent to institute the action as raised by the defendant.
Dissatisfied with the above judgment, the present respondent appealed to the Court of Appeal, Holden at Port Harcourt which Court held, in the judgment delivered on the 22nd day of April, 2004, inter alia, as follows:-
“In conclusion, the appeal is allowed only in respect of paragraph 24(2) of the Statement of Claim. Accordingly I declare that the plaintiff is entitled to the assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri Port Harcourt. He may therefore take the appropriate steps to have the assignment duly registered and also apply for a rectification of the Register of Title Deeds…”
See page 150 of the record.
It should be noted, at this stage, that the present appellant, who was respondent in the Lower Court, neither cross appealed
nor filed a respondents notice against the judgment of the trial Court for failure to determine the issue of locus standi as raised in the pleadings and address of counsel. Rather than file a cross appeal or respondent notice, the learned counsel for the respondent therein raised an issue touching and concerning the non determination by the trial Court of the issue of locus standi of the plaintiff to which the Lower Court, at pages 148 to 150 of the record had this to say inter alia:
”I now turn to issue 1 in the respondents brief which seeks to question the competency of the plaintiff’s claim. The formulation of the issues for determination have to come within the ambit of the grounds of appeal. See A-G Bendel State vs Aideyan (1989) 4 NWLR (Pt.118) 646. The respondent’s issue should arise from the grounds of appeal. See U.A.C. (Nig) Ltd vs Global Transports S.A. (1996) 5 NWLR (Pt.448) 291: Yaktor vs Gov Plateau State(1997) 4 NWLR (Pt.498) 216. Where there is no cross appeal, the respondent is duty bound to confine himself to the appellant’s grounds of appeal. SeeEdem vs Cannon Ball Ltd (1998) 6 NWLR (Pt.553) 298. However, a respondent to an appeal may file respondent’s Notice in accordance with Order 3 Rule 14(1) and (2) Court of Appeal Rules to contend that the decision being appealed against should be varied either in any event or in the event of the appeal being allowed in whole or in part or that the judgment should be affirmed or varied on other grounds. In such a case the formulation of issues and the arguments of the respondent may not be strictly in line with the

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grounds of appeal in the further amended grounds of appeal filed together with the further amended appellant’s brief, the complaints of the appellant were…
In none of the further amended grounds of appeal is there a ground that complained about a Ruling or finding made by the learned trial Chief Judge about the capacity of the appellant to sue. Issue No.1 in the respondent’s brief is incompetent and is accordingly struck out?”
The above passage in the judgment of the Lower Court constitutes the foundation of the instant appeal, the issue for the determination of which has been formulated by learned counsel for appellant, E. B. UKIRI ESQ in the appellant brief filed on 22nd April, 2005 as follows:-“Whether or not the learned Justices at the Court of Appeal were right in refusing to consider and determine the question of the capacity or locus standi of the Respondent to sue, which was a challenge to the competence of the action and, therefore the jurisdiction of the trial Court to entertain the Respondent’s claims”.
It should be noted that there is no appeal regarding the decision of the Lower Court allowing the appeal of the present respondent in respect of paragraph 24(2) of the Statement of Claim. In law, therefore, the decision of the Lower Court thereto subsists and remains binding on the parties.

In arguing the issue, learned counsel for appellant stated that though appellant raised the issue of locus standi in his pleadings and produced evidence thereto at the trial and made submissions on the issue, the trial Judge did not consider the issue in the judgment; that the same issue was raised and argued before the Lower Court which struck same out for non compliance with the provisions of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules; that the Lower Court took a narrow and inaccurate approach to the very fundamental question of the competence of the action and its impact on the jurisdiction of the Lower Court; that it is trite law that an issue of jurisdiction can be raised at any stage of the proceedings, even on appeal; that the Courts can even raise the issue suo motu; that the Lower Court was bound to consider the issue of jurisdiction however raised; that compliance with the provisions of Order 3 Rule 14(1) and (2) is not a condition precedent to the questioning of the jurisdiction of a trial Court’s decision on appeal. Learned counsel submitted that the striking out of the issue by the Lower Court without considering same occasioned a miscarriage of justice and urged the Court to consider and determine the issue and resolve same in favour of appellant and allow the appeal.
On his part, learned counsel for the respondent, H. SENIBO ESQ in the respondent brief filed on 10/6/05 submitted that the Lower Court was right in the decision it arrived at on the issue having regard to the proper interpretation of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules: that where a respondent does not file a cross appeal or a respondent notice, he can only formulate issues based on the grounds of appeal filed by the appellant, relying on Comptroller, Nigerian Prisons Services vs. Adekanye (2002) FWLR (Pt.120) 1650 at 1681 ? 1682; Adigun vs. Ayinde (1993) 8 NWLR (Pt.313) 516 at 528; that the issue of locus standi before this Court is not a fresh issue, same had been raised before the Lower Courts. It is the further submission of counsel that the issue of locus standi raised in this case is not a direct issue of jurisdiction of the Court and urged the Court to resolve the issue against appellant and dismiss the appeal.
The issue raised in the appeal is very straight forward and simple. Can a respondent to an appeal formulate issue(s) for determination outside the grounds of appeal filed by the appellant without first and foremost filing either a cross appeal or a respondents notice? The Lower Court held that he cannot, having regard to case law and the provisions of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules. Appellant, on the other hand contends that he can, the issue being a matter affecting the jurisdiction of the Court which can be raised at any stage in the proceeding including on appeal irrespective of whether he files a cross appeal or a respondent notice.
I had earlier in this judgment reproduced the relevant portion of the judgment of the Lower Court constituting the foundation of the instant appeal. Order 3 Rule 14(1), (2) & (3) of the Court of Appeal Rules 2002 (being the applicable Rules) provide as follows:-
”(1) A respondent who not having appealed from the decision of the Court below desire to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
(2) A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on ground other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.
(3) Except with the leave of the Court a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this rule or apply for any

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relief not so specified or to support the decision of the Court below upon any grounds not relied upon by that Court or specified in such a notice.”

It is settled law and practice that the duty of a respondent to an appeal is to defend the judgment of the Court below which is usually in his favour. His duty is not to attack the judgment already given in his favour except where he disagrees with some aspects of the judgment in which case he is required to file a cross appeal in which he prays the appellate Court to set aside the aspect of the judgment he considers against his interest or for the Court to consider an aspect of the case he put forward at the Lower Court which the Lower Court failed and/or neglected to consider and determine in its judgment.
Where however, the respondent is of the view that there is the need for the appellate Court to vary the decision of the Lower Court or affirm that decision on other grounds he has to file a respondent’s notice to that effect as provided for Order 3 Rule 14 supra.
In the instant case, both parties agree that appellant, as respondent in the Lower Court, neither filed a cross appeal nor a respondent’s notice with regard to the decision of the trial Court on appeal and which was given in his favour.
The respondents issue 1 before the Lower Cout which the Court held to be incompetent is as follows:
”(1) Whether or not the plaintiff’s claim was competent, having been filed before letters of Administration were granted to him.”
An issue or issues for determination must arise from the grounds of appeal relied upon. See Nwanezia v. Idris(1993) 3 NWLR (Pt.279) 1 at 12. Therefore, when an issue(s) as formulated be not based on the ground of appeal filed, the legal effect is that it is/they are on that account irrelevant – See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566. Osinupebi v. Sabiu (1982) 7 SC 104, 110, 111; Western Steel Works Ltd v. Iron Workers Union of Nigeria(1987) 1 NWLR (Pt.49) 284, 304.
Jurisdiction is defined as the legal capacity of a Court to hear and determine judicial proceedings. It is a power to adjudicate concerning the subject matter controversy.
I had earlier reproduced the reliefs claimed by the plaintiff in the trial Court. Can it be said that having regard to the said reliefs the trial Court does not have the requisite jurisdiction to hear and determine the issues(s) in controversy between the parties? Better still, can it be said that the issue of jurisdiction is directly in contention between the parties having regard to the reliefs claimed?
It is very clear from the issue formulated by learned counsel for the respondent in the Lower Court that jurisdiction is not the direct issue in contention, arising from the grounds of appeal. I agree with the general proposition of law that an issue of jurisdiction can be raised at any stage in the proceedings including on appeal but that does not mean that there are no rules governing the raising of an issue of jurisdiction or that it can be raised without regard to the Rules of Court crafted or designed to aid parties to obtain justice in the Court of law.
I had earlier pointed out in this judgment that the traditional role of a respondent in an appeal is to defend the judgment of the Lower Court given in his favour and that where he decides to challenge the judgment either as a whole or in part, he has to file a cross- appeal in which he provides the grounds of his complaints against the decision.
It is settled law that issues in appeal can only validly arise from the grounds of appeal or cross appeal and that where an issue or issues for determination does/do not arise from the grounds of appeal, such an issue(s) is/are incompetent and liable to be struck out. In the instant case and as found by the Lower Court, respondents issue 1 before the Lower Court does not arise from any of the grounds of appeal filed in the appeal. The respondent filed no cross appeal, the ground(s) of which might have grounded the issue in question neither, also as found by the Lower Court, did the respondent file a respondent’s notice in the appeal.
No one is saying that a respondent in an appeal cannot raise an issue for determination of the appeal either on jurisdiction or otherwise but that the issue(s) so raised must be anchored in the grounds of appeal which must in turn arise from the ratio in the judgment on appeal, otherwise the issue(s) formulated is/are grossly incompetent. The reason, simply is that the judgment of a Court of law is presumed valid and subsisting unless set aside by an appellate Court of competent jurisdiction, upon a proper appeal or cross appeal.
As stated earlier, in this judgment, a respondent who does not cross-appeal but intends to contend that the judgment of the Lower Court be varied or affirmed on grounds other than those relied upon by the Lower Court can do so by filing a respondent’s notice under the Rules of Court, otherwise any issue for determination not anchored on the grounds of appeal (main or cross) or respondents notice is grossly incompetent and liable to be struck out.

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I therefore agree entirely with the decision of the Lower Court earlier reproduced in this judgment as I find same to be without reproach. In the circumstance I find no merit in the issue under consideration and consequently resolve same against appellant and dismiss the appeal.
Appeal is dismissed for want of merit with N250,000.00 costs against appellant in favour of respondent.
Appeal dismissed.
NWALI SVLVESTER NGWUTA, J.S.C.: I have read with gratitude the lead judgment delivered by my learned brother, Onnoghen, JSC. I agree with the reasons and conclusion leading to the dismissal of the appeal. I desire to say a few words in support of the judgment.
An appeal is an invitation to a higher Court to review the decision of a Lower Court to find out whether on a proper examination of the facts placed before it and the applicable law, the Lower Court arrived at a correct decision. It is a complaint against the decision appealed against, be it that of the trial Court or the Court below the appellate Court. See Lawrence Adebola Aredoyin & Ors v. Arowolo (1989) 4 NWLR (Pt.114) 172 at 211.
It is the appellant, the aggrieved party, who appeals the judgment against him. The ground of appeal is on the ratio decidendi of the judgment appealed against and the issues to be determined must flow from the grounds of appeal.See Ono v. Jsc Delta State (2000) 7 SC (Pt.11) p.1.
Usually the respondent in whose favour the Court has given judgment will, and can, not challenge the judgment in his favour. A respondent who has issue or issues against the judgment in his favour can raise the issues by way of cross-appeal or respondent’s notice in strict compliance with Order 3 Rule 14 (1), (2) and (3) of the Court of Appeal Rules , 2002 reproduced in full in the lead judgment.
He can also file a cross-appeal. If he has not taken advantage of Order 3 or filed a cross-appeal and desires to raise issue or issues in the appeal, he cannot raise any issue outside the appellant’s grounds of appeal. He can adopt the appellant’s issues as formulated or give the issues a slant to favour his side of the case. If he must formulate issues of his own the issues must flow from the appellant’s grounds of appeal.
As demonstrated in the lead judgment, the respondent did not file a cross-appeal or a respondent’s notice. He formulated the following issues in his brief of argument:
“Whether or not the learned Justices of the Court of Appeal were right in refusing to consider and determine the question of the capacity or locus standi of the respondents to sue, which was a challenge to the competence of the action and, therefore the jurisdiction of the trial Court to entertain the respondent’s claims”
This is not an issue raised by the appellant nor is it framed from the appellant’s grounds of appeal. It is an issue raised from the blues and is floating in the air without any foundation. The issue was framed in contravention of the principle that where the respondent has not filed a cross-appeal, the issues for determination formulated by him must arise from the grounds of appeal filed by the appellant. See Ogundare v. Ogunlowo (1997) 6 NWLR (Pt.509) 360; Padawu v. Jatau (2003) 5 NWLR (Pt.813) 247.
Appellant says the issue is one of jurisdiction. Jurisdiction in its strict sense is the limits which is imposed upon the power of a validly constituted Court to hear and determine issues properly brought before it by due process by reference to:
(1) The subject matter in issue.
(2) The persons between whom the issue is joined, and
(3) The kind of relief sought.
See Adeyemi v. Opeyori (1976) 9-10 SC 31; Ikine v. Ediezode (2001) 92 LRCN 3288 at 3316; Aladegbemi v. Fasanmode (1988) 3 NWLR (Pt.81) 129.
It is true that jurisdiction can be raised at any stage of a proceeding from the trial Court to the penultimate Court and to the ultimate Court. But I do not subscribe to the view that jurisdiction of Court to determine a matter can be raised anyhow. No, the matter must be properly before the Court. One cannot import an issue from outside into the proceeding before a Court and invoke its jurisdiction.
The trial Court may have jurisdiction to entertain the issue before it and when it failed to do so the appellant failed to raise the issue by the proper procedure in Order 3 (supra) to ignite the jurisdiction of the Court below.
The issue, though within the

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jurisdiction of the trial Court must be brought before the Court of Appeal by way of appellate practice and procedure before the jurisdiction of the Court below can be invoked, otherwise the issue is incompetent and liable to be struck out. Jurisdiction is not a magic wand that a party can wave to induce the Court, trial or appellate, to deal with issues not properly brought before it.
For the above and the fuller reasons in the lead judgment I also dismiss the appeal as devoid of any merit. I adopt the order on cost.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C. : I agree totally with the judgment just delivered by my Lord, W, S. N. Onnoghen, JSC and to show support for the reasonings from which the decision came about, I shall make some comments.
This appeal comes from the decision of the Port Harcourt Division of the Court of Appeal delivered on the 22nd day of April, 2004. The Respondent herein as Plaintiff at the trial High Court commenced the suit as “the Administrator of the estate of Late Christian O. Amadi by virtue of letters of administration” over Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
The reliefs sought by the Plaintiff at the High Court are stated hereunder:-
1. A declaration that the Plaintiff who is the next of kin of Chief Christian O. Amadi (deceased) is entitled to the grant of letter of Administration in respect of Plot 91 Gborokiri Layout, otherwise known as No, 3 Andoni Street, Gborokiri, Port Harcourt.
2. A declaration that the plaintiff is entitled to the Assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No. 3 Andoni Street Gborokiri, Port Harcourt.
3. An order revoking and/or nullifying the letters of Administration dated 15/2//82 purportedly granted to the Defendant in respect of the said Plot 91 Gborokiri Layout otherwise known as No. 3 Andoni Street, Gborokiri, Port Harcourt.
4. An order for the Defendant to account for all the rents he wrongfully collected from the tenants in the Premises from 23/4/80 (when his father’s interest in the property ceased) to the date of judgment and payment of the same over to the estate of Chief Christian O. Amadi (deceased).
5. An order of perpetual injunction to restrain the Defendants and/or his servants and agents from interfering with the said property.”
The Appellant as Defendant denied the Claims of the Plaintiff and challenged the locus standi of the plaintiff to institute the action. Evidence was led at the end of which the High Court gave judgment in favour of the Defendant/Appellant on ground that his father having granted a Power of Attorney to another person had nothing left to assign to the brother of the Plaintiff/Respondent.
On appeal to the Court of Appeal or Court below for short that Court allowed the appeal only respect of paragraph 24(2) of the Statement of claim, directed the respondent to take steps to have the assignment duly registered and apply for the re-certification of the register of Title Deeds. Also that appellate Court refused to consider the issue of the capacity or locus standi of the respondent in that Court on the ground that the Appellant had not complied with Order 3, Rule 14 (1) of the Court of Appeal Rules.
Being dissatisfied, the appellant has approached this Apex Court on four grounds of appeal.
On the 27th day of October, 2015, learned counsel for the Appellant, E. B. Ukiri Esq. adopted the Brief of the Appellant filed on the 22/4/2015. He raised a sole issue for the determination of the appeal which is as follows:-
Whether or not the Learned Justices of the Court of Appeal were right in refusing to consider and determine the question of the capacity of locus standi of the Respondent to sue, which was a challenge to the competence of the action and, therefore, the jurisdiction of the trial Court to entertain the Respondent’s claims.
Wilcox Abereton Esq. of counsel for the Respondent adopted his Brief of Argument settled by H. Senibo Esq and filed on 10/6/05. In the Brief of Argument was identified a lone issue being thus:-
Whether the issue of the capacity of the plaintiff to sue is a matter questioning the jurisdiction of the Court which can be raised by the Respondent on an appeal to the Court of Appeal without a Cross-Appeal or a Respondent’s notice.
The issues as crafted by the counsel on either side says the same thing a different way and I shall answer the question raised by each counsel which question is the propriety of the Court of Appeal declining the consideration and determination of the capacity of locus standi of the Respondent to sue.
Canvassing their stand point, learned counsel for the Appellant submitted that the Court below took a narrow and inaccurate approach to the very fundamental question of the competence of the action and its impact on the jurisdiction of the Lower Court. That it is settled law that the question of jurisdiction can be raised at any stage of the proceedings even on appeal. That the trial and appellate Courts can even raise same suo motu. That the

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Lower Court was duty bound to consider and determine the issue of jurisdiction and competence of the Respondent’s claims however it was raised and that compliance with Order 3, Rule 14(1)(2) of the Rules of Court of Appeal is not a condition precedent to the questioning of jurisdiction of a trial Court’s decision on appeal. That the incompetence of the respondent’s action or the lack of capacity to commence the action at the time he did deprived the trial Court of jurisdiction to entertain the claims.
Learned counsel for the Respondent submitted that the Court below was right in its interpretation of Order 3, Rule 14(1) and (2) of the Court of Appeal Rules since the Appellant as Respondent had not cross-appealed or filed a Respondent’s Notice. That the respondent must formulate issues for determination in the appeal with reference to the grounds filed by the appellant as the Court of Appeal can only entertain issues based on the grounds of appeal filed before it. He cited Comptroller Nigerian Prison Services & Ors v. Dr. Femi Adekanye & Ors (2002) FWLR (Pt.120) 1650;Samuel A. Adigun v. I. O. Ayinde & Ors(2002) FWLR (Pt.120) 1650;Samuel A. Adigun v. I. O. Ayinde & Ors (1993) 8 NWLR (Pt.313) 516 at 528.
The thrust of the dispute this appeal as displayed in part of the judgment of Court of Appeal which that Court decided while striking out the issue on the question of the locus standi of the Respondent therein and Appellant before this Court in keeping with Order 3, Rule 14(1) and (2) of the Court of Appeal Rules and its words thus:-
“In none of the further amended grounds of appeal is there a ground that complains about the Ruling or finding made by the Learned Trial Chief Judge about the capacity of the Appellant to sue. Issue No.1 the in the respondent’s brief incompetent and it is accordingly struck out. There is no appeal against the order dismissing the application to amend the statement of claim and so I will not venture an opinion”.

The Appellant’s view is that the Lower Court took a very narrow and inaccurate approach to the very fundamental question of the competence of the action and impact on the jurisdiction of the Lower Court since the issue of jurisdiction can be raised at any point even on appeal and also the trial and appellate Courts may raise it even suo motu. That the non-compliance with Order 3, Rule 14(1) and (2) is not a condition precedent to the questioning of the jurisdiction of a trial Court’s decision on appeal and so that appellate Court was wrong to strike out the said Issue No.1 and a miscarriage of justice thereby occurred.
The Rule of the Lower Court at the crux of this matter is hereunder quoted, viz:-
Order 3, Rule 14 (3) of the Court of Appeal Rules:
“Except with the leave of the Court, a Respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this rule, to apply for any relief not so specified or to support the decision of the Court below upon any ground not relied upon by that Court or specified in such a notice”.

Going back in time, the issue of locus standi was taken in the High Court and brought to the Court of Appeal Even though the trial Court did not rule on it, the Court of Appeal did which produced the grievance that is being articulated before this Apex Court. From the writ of summons and statement of claim, the Plaintiff/Respondent sued in his name and in his pleading had averred he brought the action as the Administrator of the Estate of Late Chief Christian Amadi by virtue of the Letters of Administration issued on 13/10/87 even though the Letters had not been obtained when he filed his writ on 3/8/87. In the course of the trial, plaintiff/respondent had tendered the said letters of administration without objection and even though learned counsel for the Defendant now appellant raised the issue of plaintiff’s?locus standi in his address the learned trial judge did not refer to it his judgment.
The grouse of the Appellant now that they ought to raise the issue of locus standi by having the Notice of Appeal varied which the Court Below refused the absence of a cross appeal or Notice to Contend at that Lower appellate Court. I am inagreement with learned counsel for the Respondent that what the learned Justices of the Court of Appeal did was the proper and correct interpretation of the Rule in question. The reason is that where a Respondent as the Appellant now, where he had not cross-appealed or filed a Respondent’s Notice since he must formulate issues for determination in the appeal within the grounds filed by the appellant and not outside those grounds of appeal. Therefore, in that failure to file either a cross-appeal or Notice to Contend, the Court of Appeal had no option than to decline to entertain the issues which were not covered in the grounds of appeal. See Comptroller Nigerian Prisons Services & Ors v. Dr. Femi Adekanye & Ors(2002) FWLR (Pt.1993) 8 NWLR (Pt.313) 516 at 528; Edem v. Canon Bail Limited (1998) 6 NWLR (Pt.553) 298.
Clearly, this appeal for the reasons stated above, and the fuller reasoning the lead judgment cannot be sustained and so I dismiss the appeal and affirm the decision of the Court Below, I abide by the consequential orders made.
OLUKAYODE ARIWOOLA, J.S.C. : My learned brother Onnoghen, JSC obliged me with the draft of the lead judgment just delivered and I am in complete agreement with His Lordship’s reasoning that the appeal lacks merit and should be dismissed in its entirety.
Accordingly, I too will dismiss the appeal. Appeal is dismissed. I abide by the consequential orders in the lead judgment including that on costs.
MUSA DATTIJO MUHAMMAD, J.S.C. : I read in draft the lead judgment of my learned brother Onnoghen JSC, just delivered. I entirely agree with his lordship that the appeal lacks merit and stands dismissed. I abide by the consequential orders made in the lead judgment including the order of costs.

1. A declaration that the plaintiff, as a daughter of one L.O. Ukeje (deceased), is the person entitled to the estate or one of the person entitled to share in the estate of the said L.O Ukeje (deceased).

2. An order that the grant of Letters of Administration dated 15th June, 1982 made to the 1st and 2nd defendants in respect of the estate of the said L. O. Ukeje (deceased) be revoked and declaring the same to be null and void to all intents and purposes in law.

3. An order of injunction restraining the 1st and 2nd defendants from administering the estate of the said L.O. Ukeje (deceased) and relying on the said Letters of Administration dated 15/6/82 granted to them and/or holding themselves out as administrators of the said estate to members of the public and/or transacting any business with any person in respect of the said estate of the said L.O. Ukeje (deceased).

4. An order that the 1st and 2nd defendants prepare an inventory of all and singular the estate and/or render account of all monies, transactions and/or properties which have come into their possession since the grant of the said Letters of Administration of the estate of Mr. L.O. Ukeje (deceased).

5. An order that the grant of Letters of Administration of the said L. O. Ukeje (deceased) be made to the plaintiff and the second defendant.

Pleadings were filed and exchanged. The statement of claim was filed on 22/2/83, and the statement of defence on 27/4/83. The statement of defence was subsequently, amended five times and finally on 18/6/90. A reply to statement of defence was filed on 9/11/84, amended on 15/4/86 and 24/11/86. The first witness the plaintiff, gave evidence on 31/5/84. The plaintiff’s case was closed after her mother concluded her evidence on 8/11/85 as PW2.
Thirteen witnesses gave evidence for the defence. Thirty-four documents were admitted as exhibits. Closing speeches were concluded on 11/11/91. In a judgment delivered on 10/1/92 the learned trial judge, Fafiade J found that the plaintiff is a daughter of L.O. Ukeje (deceased) and proceeded to grant reliefs 2, 3, and 4. As regards relief 5 the learned trial judge ordered the 1st and 2nd defendants/appellants to hand over the administration of the estate to the Administrator General pending when the five children (the plaintiff/respondent inclusive) would choose 3 or 4 of them to apply for fresh letters of Administration. The defendants/appellants’ lodged an appeal. The Court of Appeal Lagos (Division) agreed with the learned trial judge. That court dismissed the appeal for lacking, merit.

This appeal is against that judgment. Briefs of argument were duly filed in accordance with rules of this court. The appellants brief was filed on the 14th of September 2000 while the respondents brief was filed on the 17th of December 2006.

Learned counsel for the appellants’ formulated four issues for determination. They read:

ISSUE 1
“Where the plaintiff in an action produces a document in evidence in support of an averment of fact in his pleadings which the defendant has denied, is the defendant, if he seeks to adduce oral or documentary evidence in disproof of the plaintiffs documentary evidence, bound first to plead that the plaintiffs documentary evidence is false, fraudulent or forged?

ISSUE 2
“Was the evidence of DW8 discredited in the High Court?”

ISSUE 3
“Did the trial court arrive at its decision alter following the proper guidelines for decision making laid down by the Supreme Court?”

ISSUE 4
“Did the Court of Appeal draw the right conclusions in respect of the Birth Certificate Exhibit H?”

On his part learned counsel for the respondent presented three issues for determination. They are:

ISSUE 1
Whether there were any violations by the two lower courts to make such findings perverse.

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ISSUE 2
Whether the standard of proof required of the appellant in proving fraud and forgery is proof beyond reasonable doubt.

ISSUE 3
Whether the Court of Appeal was correct to have affirmed the judgment of the lower court when it held that the learned trial judge followed the procedures laid down by the Supreme Court.

After a careful examination of the issues formulated by both sides I am satisfied with the issues formulated by learned counsel for the appellant, but with some amendments or formulation of my own.

Issues 1 and 4 questions the authenticity of some of the documents relied on by the respondent to prove that the deceased is her biological father. Both issues can be taken as one.

This Court and indeed an Appeal Court has the power to adopt or formulate issues that in its view would determine the real complaints in an appeal. See Ogunbiyi v. Ishola 1996 6 NWLR Pt.452 P.15.

The issues for consideration would now read:

ISSUE 1
Whether the respondent as plaintiff proved that she is a biological daughter of L.O. Ukeje (deceased).

ISSUES 2
Was the evidence of DW8 discredited in the High Court?

ISSUES 3
Did the trial court arrive at its decision after following the proper guidelines for decision making laid down by the Supreme Court?

At the hearing of the appeal on 20/1/14 counsel said nothing, to amplify further their briefs.
Learned counsel for the appellant adopted his brief filed on the 14th of September 2006 and urged the court to allow the appeal. Learned counsel for the respondent adopted his brief filed on the 17th of December 2006 and urged the court to dismiss the appeal.

ISSUE 1
Whether the respondent as plaintiff proved that she is the biological daughter of L.O. Ukeje (deceased).

Apart from her testimony on oath and that of her mother, PW2 to prove that she is the daughter of L.O. Ukeje (deceased) the respondent tendered the following:

1. Her birth certificate – Exhibit H.
2. Form of undertaking, and Guarantee – Exhibit 3
3. Judgment in her Divorce Proceeding – Exhibit J
4. Photographs – Exhibits M, M1, P.

Exhibit H is the Birth Certificate of the respondent tendered to prove acknowledgment of the paternity of the plaintiff by the deceased.
Learned counsel for the appellant observed that the column in Exhibit H which recorded the name of the person who supplied the information recorded therein to the Registrar showed the name of the plaintiffs mother, further observing that the column for a record of the address of the mother of the child showed No.51 Moleye Street, Yaba, Lagos contending that she had claimed in her evidence that she lived with the deceased at No.11 Onikan Street, Ikoyi, Lagos, concluding, he submitted that since there are two inconsistent statements about where PW2 lived it was wrong for the judge to sag that he believed that PW2 lived at one or the other address, submitting that the only conclusion open to the Court of Appeal was that the plaintiffs story that the deceased accepted her paternity was untrue.

Learned counsel for the respondent observed that this court ought not to disturb concurrent findings of fact made by the trial court and the Court of Appeal that Exhibit H is genuine. Reliance was placed on Chinwendu v. Mbanali 1980 3-4 SC p.31

The submissions of learned counsel for the appellant were on information given on Exhibit H about address.
The learned trial judge had this to say:

“As rightly pointed out by plaintiff’s counsel the issue of address was never put to plaintiff’s mother to enable her explain the seeming conflict. It has however not been disputed that plaintiff was born in Lagos on 5/7/52 and that birth was registered in August 1952.”

And with that observation the learned trial judge held that Exhibit H, the plaintiff/respondent birth certificate was genuine. She was a daughter of L.O. Ukeje (Deceased).

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The Court of Appeal made identical findings when it said:
“Here, by virtue of this section there is presumption of law that the Birth Certificate of the respondent is genuine. The Onus is on the appellants to rebut this presumption by adducing sufficient and probable evidence.
Since the appellants have not discharged the onus placed on them to disprove the genuineness of exhibit H, the learned trial judge is obliged in law to assume that exhibit H is genuine.”
The section referred to by the Court of Appeal is section 114(1) of the Evidence Act which states that:
“The Court shall presume every document purporting to be a certificate, certified copy or other document, which it by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized thereto to be genuine, provided that such document is substantially in the Form and purports to be executed in the manner directed by law in that behalf.”
Under this subsection the court will presume a document to be authentic if the contents on the face of the said document were properly done and the document is properly executed by the authorized Government Official. I must say that a birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in the document. Once the authorized Government official appends his signature and stamp on the document and such authentication is not contested by the adverse party the presumption of regularity will be ascribed to it.

It has not been disputed that the respondent was born in Lagos on the 5th of July, 1952 and her birth was registered in Lagos in August 1952. Her parents at. L.O. Ukeje (deceased) and PW2. Since the appellants’ did not rebut the presumption of regularity the finding of fact by the trial court remains unassailable. L.O. Ukeje (deceased) is the biological father of the respondent.
Exhibit H is authentic, it is genuine. The Court of Appeal drew the right conclusion in respect of Exhibit H, Exhibit M, M1.

Learned counsel for the appellants observed that there was a disparity between the negative – Exhibit M and what is supposed to be the picture – Exhibit M1 contending that this fact was admitted by the plaintiff/respondent in cross-examination. Relying on Bamgboye v. Olarenwaju 1991 22 NSCC (Pt.1) p.501 he contended that there was no need to plead forgery before the courts declare them to be forgeries. He submitted, that both courts below were wrong to hold that forgery must be pleaded before there can be a finding that they are forgeries. He urged this court to set aside the findings of the courts below on exhibits M and M1 and hold that both exhibits cannot be relied on by the respondent to prove that the deceased is her father.

Learned counsel for the respondent submitted that it is not for DW8 and the appellants’ to decide whether exhibits M and M1 were forgeries or/and photo tricks, contending that it is for the court to make its own conclusion from the evidence before it. He submitted that the Court of Appeal was correct to affirm the decision of the trial court.

On the allegation by the appellants that exhibits M and M1 are forgeries, the learned trial judge said:

“I have no cause to doubt plaintiff and her mother that L.O. Ukeje deceased is the father of plaintiff …”

Referring to exhibit M and M1 the learned trial judge said:

“…Furthermore, it is well settled in law that when fraud is being alleged in any suit, it must be pleaded with utmost particularity … it is quite clear from the records that no allegation of fraud or tricks was put to plaintiff and her mother. What is more the amended statement of defence was filed well after plaintiff and her mother had given evidence. Plaintiff is required to prove her case by preponderance of probability…”

Agreeing with the learned trial judge that exhibits M and M1 were not forgeries the Court of Appeal said:

“If the appellants had intended to place reliance on forgery or fraud which they alleged was visible at the trial they would have raised it in their final pleading, the third Amended Statement of Defence filed on 19/6/1990. They should not have alleged the forgery and fraud in their final address as they did. This therefore goes to no issue as they were not pleaded and therefore ought to be discountenanced…”

Learned counsel for the appellants’ relied on Bamgboye v. Olarenwaju (1991) 22 NSCC (Pt.1) P.501 to show that the reasoning of both courts below are wrong in that fraud ought to have been pleaded before exhibits M and M1 can be considered as forgeries.

The long, settled position of the law is that when fraud is being alleged in a suit it must be pleaded, particulars given and established in evidence by proof beyond reasonable doubt. See section 138 (1) of the Evidence Act.
Famuroti v. Agbeke (1991) 5 NWLR pt.189 p.1
Igbinosa v. Aiyobangbiegbe (1969) 1 ANLR p.99.

In the reply to further amended statement of defence the respondent as plaintiff averred as follows:

“The plaintiff will at the trial tender family photographs of herself and her deceased father taken between 1978 and 1990 as well as photographs of her mother and deceased father in 1950s.”

…………………….D…………………….

The above pleading simply puts the appellant/defendants on notice that the respondent would be relying on family photographs to prove that she is the daughter of L.O. Ukeje (deceased).

Now, on the question asked in Issue 1

“Where the plaintiff in an action produces a document in evidence in support of an averment of fact in his pleadings which the defendant has denied, is the defendant, if he seeks to adduce oral or documentary evidence in disproof of the plaintiffs documentary evidence, bound first to plead that the plaintiffs documentary evidence is false, fraudulent or forged?

The respondent, as plaintiff produced exhibits M, M1 photograph and negative to support averment in her pleadings that she is the daughter of L.O. Ukeje (deceased). The defendant/appellant denied the averment in the plaintiff’s pleadings. At that stage pleadings are settled. At trial, if the defendant seeks to disprove the plaintiffs documentary evidence (i.e. exhibits M, M1) which was used to support her claim to being the daughter of the deceased, the defendant is not bound to plead that the plaintiff’s documentary evidence is false, fraudulent or forged. The defendant is to cross-examine him and lead evidence to show beyond reasonable doubt that exhibit M, M1 are forgeries. This the defendants appellants were unable to do.

Learned counsel for the appellants only contested exhibit H, M and M1 to show that the respondent is not the daughter of the deceased. The respondent also relied on exhibit 3 – Guarantors Form, and exhibit J – judgment in her divorce case.

The respondent, testified as plaintiff on 8/1/90 that when she wanted to obtain a new Passport the deceased, L.O. Ukeje filled the Guarantors Form for her and acknowledged that he was the father of the plaintiff.
The Guarantors Form is exhibit 5 and it supports her testimony. Furthermore the respondent was married to a German National. Somewhere along the line her marriage collapsed. In the divorce suit she is referred to as Nee Ukeje. I must observe that the divorce proceedings and guarantors Form were in existence well before the death of L.O. Ukeje in 1981. The position of the law is that once documentary evidence supports oral evidence, such oral evidence becomes more credible. The reasoning is premised on the fact and the law that documentary evidence serves as a hanger from which to assess oral testimony. See Kimdey & Ors v. Military Governor of Gongola State & Ors 1988 Vol.19 (Pt.1) NSCC P.827
Omoregbe v. Lawani 1980 5-4 SC P.117.

When the issue is whether the respondent is the Daughter of L.O. Ukeje (deceased) family photographs may help to resolve the issue, but the birth certificate of the respondent is decisive in settling, such an issue. It answers the questions when, where the respondent was born and who her parents are. Documents such as guarantors Forms further shows L.O. Ukeje (deceased) is the respondent’s father. Exhibit H, M, M1-3 and J lend more credence to the claim and evidence of the respondent, that she is a daughter of L.O. Ukeje (deceased). I accept it as the truth, and both courts below were correct in their judgments that L.O. Ukeje (deceased) is the father of the respondent.

ISSUE 2
Was the evidence of DW8 discredited in the High Court?

Learned counsel for the appellants’ after examining pronouncements by the Court of Appeal submitted that the Court of Appeal was in error in proceeding, to hold that the evidence of DW6 was discredited, because the trial court never made such finding and the plaintiff never called evidence to explain why exhibit M1 was different from exhibit M.

Learned counsel for the respondent submitted that the evidence of DW8 was discredited under cross-examination and urged this court to so hold. To find out if the evidence of DW8 was discredited in the High Court the findings of the High Court and Court of Appeal would be relevant.

The leaned trial judge said:

“The 8th defendant witness cannot claim to be an expert in photocopying with only 6 months training…”

The Court of Appeal said:

“In spite of the evidence of DW8 that the deceased’s photograph was superimposed on respondent or vice versa. DW8’s evidence demonstrated that it is possible to superimpose pictures. This evidence is speculative. DW8 expressed this opinion as an expert witness as a photo analyst. But where an expert evidence is discredited, then the court will have to cautiously accept or rely on such expert evidence… It would appear the evidence of DW8 was shaken or discredited under cross-examination.”

To my mind after reviewing the testimony of DW8, his cross-examination and the observations of the learned trial judge and the Court of Appeal I would hold that the evidence of DW8 was not discredited in the High Court, rather, not much weight was attached to it by the learned trial judge as she found the evidence speculative and the witness not properly qualified.

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ISSUE 3
Did the trial court arrive at its decision after following the proper guidelines for decision making laid down by the Supreme Court.

The decision making, process of the learned trial judge is questioned in this issue. After the Court of Appeal made a comprehensive review of the steps taken by the learned trial judge before arriving at the judgment, that court said, per Galadima JCA (as he then was):

“I am of the firm conviction that by a careful examination of the judgment of the learned trial judge, she duly considered and followed the procedure out lined in the case of Sanusi v. Ameyogun (1992) 4 NWLR Pt.237 P.527.”

Learned counsel for the appellants’ observed that the Court of Appeal was wrong in holding that the trial court followed the guideline laid down in Sanusi v. Ameyogun (supra). He observed that rather than evaluate evidence of each of the contesting parties the learned trial judge picked out the oral and documentary evidence adduced by the plaintiff/respondent and her witnesses then proceeded to declare that she found it unbelievable that the plaintiff and her witnesses would have been able to have knowledge of a number of listed facts, unless they had personal contact with the deceased. He contended that the learned trial judge did not review or evaluate the evidence of the relatives of the deceased.

Learned counsel for the respondent observed that the learned trial judge properly evaluated the evidence before concluding that the respondent is a daughter of L.O. Ukeje (deceased). He submitted that the guidelines laid down in Sanusi v. Ayemogun were followed by the learned trial judge, contending that the Court of Appeal was right to affirm the decision of the trial court.

It is well settled that it is the duty of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility and ascribe probative value. See Kim v. State (1992) 4 NWLR Pt 233 p.17
Sanusi v. Ameyogun (1992) 4 NWLR Pt.237 P.527.

According, to the Court of Appeal the learned trial judge followed the proper decision making, process as out lined by this court in Sanusi v. Ameyogun. I must at this stage examine the judgment of the learned trial judge to see if the finding of the Court of Appeal is correct.

First of all I consider the testimony of the appellants witnesses.
A trial judge is expected to watch the demeanour of the witness, to see how readily he answers questions. Whether he gesticulates. His reaction when confronted with evidence, be it documentary which suggest that his testimony is untrue. It is only after the above that the judge can attach weight to the evidence of a witness.

On the demeanour of appellants’ witnesses the learned trial judge said:
“Defence witnesses who appeared to have come to court determined to say nothing else but that plaintiff is not Ukeje’s daughter even seemed confused as to their relationship with L.O. Ukeje. 1st defendant felt very uncommitted when she told this court L.O. Ukeje had no relations, where as a witness claimed to be his father, another said he was his brother, even 2nd defendant said he had uncles and in their last amended statement of defence paragraph referred to relatives. Both defendants in spite of their desperation failed to call an immediate member of Ukeje’s family to support their stand.”

After so finding, the learned trial judge proceeded to accept plaintiffs evidence and that of her mother that Ukeje is plaintiffs father. If I may add, the duty of the trial court is to receive all relevant evidence. That is perception. Thereafter the judge is to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation.

My lords, it is so obvious that the learned trial judge received all evidence put forward by both sides in proof and disproof of the case. The judge proceeded to weigh the evidence on an imaginary scale and found the testimony of plaintiffs, supported by documents to wit: Exhibits H, M M1, J and 3 to be good proof that the 1st plaintiff/respondent was L.O. Ukeje’s (deceased) daughter. On the other hand the evidence of the appellants’ was found conflicting, and seriously damaged on demeanour, a finding an appeal court cannot make a finding as it never saw or heard the witnesses when they gave evidence. In the circumstances I agree that the learned trial judge followed the guidelines outlined in Sanusi v. Ameyogun Supra. On the issue of paternity the evidence of the respondent far outweighs the evidence of the appellant. Both courts below were correct that the respondent’s father is L.O. Ukeje (deceased).

Before this court are concurrent findings by two lower courts that the respondent is a daughter of L.O. Ukeje (deceased). When there is an appeal where there is a finding of fact affirmed by the Court of Appeal, this court would presume that the trial judge’s conclusions are correct. This is so since the trial judge was the only judge who saw and heard the witnesses. When the Court of Appeal affirms the conclusions of the trial court the presumption becomes much stronger. The presumption can only be displaced by the appellant who seeks, to upset the judgment on facts.
This court would be quick to reverse concurrent findings of fact if there was miscarriage of justice or a violation of some principle of law or procedure or the finding, is found to be perverse. See R. V. Benkay Nig Ltd. V. Cadbury Nig PLC

…………………….F…………………….

(2012) 3 SC (pt.iii) p.169
ACN v. Lamido & 4 Ors. (2012) SC (pt.ii) p.163

The finding of fact that the respondent is a daughter of L.O. Ukeje (deceased) was arrived at by the learned trial judge after the plaintiff/respondent supported her claim with flawless documentary evidence, especially her birth certificate. There is no way such a finding can be said to be perverse, or to have violated some principle of law. Concurrent findings of fact that the respondent is a daughter of L.O. Ukeje (deceased) are correct.

This appeal is on the paternity of the respondent.

Whether the respondent is a daughter of L.O. Ukeje (deceased). L.O. Ukeje deceased is subject to the Igbo Customary Law. Agreeing with the High Court the Court of Appeal correctly found that the Igbo native law and custom which disentitles a female from inheriting, in her late father’s estate is void as it conflicts with sections 39(1)(a) and (2) of the 1979 Constitution (as amended).
This finding was affirmed by the Court of Appeal. There is no appeal on it. The finding remains inviolate.
Section 39(1),(a) (2) of the 1979 Constitution is now contained in the 1999 Constitution as section 42(1), (a), (2) and it states that:
“42(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups places of origin, sex, religions or political opinions are made subject: or ….
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently the Igbo customary law which disentitles a female child from partaking, in the sharing of her deceased lather’s estate is in breach of section 42 (1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution.

In the light of all that I have been saying, the appeal is dismissed. In the spirit of reconciliation parties to bear their own costs.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead judgment of my leaned brother, RHODES-VIVOUR, JSC just delivered.

I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

The facts of the case have been stated in detail in the lead judgment and I therefore do not intend to repeat them herein except as may be needed for the points(s) being made.

This appeal is based on the concurrent findings of fact by the lower courts as the findings of the trial court were affirmed by the lower court upon proper consideration. It is settled law that unless there are special circumstances shown, this court will not disturb the concurrent findings of fact made by the lower courts – seeChinwedu vs Mbamali (1980) 3 – 4 S.C 31 at 75; Ogbu vs Wokoma (2005) 14 NWLR (pt. 944) 118 at 123.
The circumstance or exceptions to the above general principle include the following:-
(a) If such findings of fact are made on inadmissible evidence; or
(b) If such findings of fact cannot be related to any evidence before the court; or
(c) Where such findings of fact are on matters not pleaded; or
(d) Where, on the whole facts before the trial court and the Court of Appeal, the findings are manifestly perverse – see Ogbu vs Wokoma supra.

I have gone through the briefs of argument filed and relied upon in arguing the appeal and the record of proceedings and have not seen where any of the exceptions listed above have been alleged let alone established by argument before this court.
It is for the above and the more detailed reasons contained in the lead judgment of my learned brother that I too find no merit in this appeal and accordingly dismiss same.

I abide by the consequential orders made in the lead judgment including the order as to costs.

Appeal dismissed.

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CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgement of my learned brother Rhodes-Vivour, JSC and I agree that the appeal is devoid of any merit and should be dismissed.

The appeal before us is against the concurrent decisions of the two lower courts wherein judgement was confirmed in favour of the Plaintiff/Respondent whose action was instituted before the Lagos High Court wherein she claimed five reliefs before the trial court. The reliefs are clearly spelt out in the lead judgement of my learned brother. With the High Court having given judgement in favour of the plaintiff/respondent, an appeal by the defendant/appellant before the lower court was accordingly dismissed, hence the appeal now before us. The four issues distilled by the appellants and three by the respondent from the appellants’ fourteen grounds of appeal have been reproduced in the lead judgement.

On the communal reading and the totality of the submission by the learned counsel for the appellants, the attack is centered on the entire evidence by the respondent; that is both oral and documentary evidence particularly Exhibits ‘H, L, P, J and 3’ which were based on the alleged conclusion arrived at by ‘DW 8’ that Exhibits ‘M’ and ‘M1’ were forged documents. With reference made to section 138(2) of the Evidence Act, the burden of proving crime is subject to the provision of section 141 of the said Act and the proof is on the person who asserts as to whether the commission of such act is or is not directly in issue. The law is well settled that proof of criminal allegation must be beyond reasonable doubt.

It is also trite law that the appraisal of oral evidence and ascription of probative value of such evidence are the primary responsibility of a trial court. In otherwords, it is for the trial court to evaluate the evidence of witnesses after having seen their demeanor and heard them. This privilege is not given to the appellate court.

On the authenticity and proof of respondent’s paternity through her birth certificate, the testimony given by the respondent’s mother was in my view a first hand evidence and the best. The trial court, I hold did rightly declare as unconstitutional, the law that dis-inherits children from their deceased father’s estate. It follows therefore that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father’s estate is conflicting with section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The reproduction of the section states thus:-
“42(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

It was in evidence and found as a fact by both lower courts that the respondent was born in Lagos on 5th July, 1952 and that her birth was registered in August 1952. Exhibit ‘J’ was a judgement evidencing the respondent’s former name as “nee Ukeje” in her divorce proceedings. There was also a guarantor form exhibit ‘3’ which confirmed that the respondent was acknowledged as the deceased’s daughter. Both the documents Exhibits ‘J’ and ‘3’ were in existence well before the death of the respondent’s father in 1981. Furthermore, Exhibits ‘M’, ‘M1’ and ‘P’ are the photographs which both the respondent and her mother claimed to have taken with the deceased during his lifetime. This is inspite of the evidence by ‘DW 8’ that the deceased’s photograph was superimposed on that of the respondent or vice versa.

With reference to the evidence of ‘DW 8’, the photo analyst, under cross examination, for instance at page 121 of the record, he had this to say:-

“It is true I said earlier lots of things could have been done… It is also possible…”

The use of the words therein give an impression that this witness’s evidence is speculative; it is not open therefore for the witness, ‘DW 8’ and the appellant to say that Exhibits ‘M’ and ‘M1’ were mere photo tricks and forged. It is rather left for the court to draw its own conclusion from the evidence before it. I hasten to also add as point of caution that the witness ‘DW 8’ was called by the appellants to give expert evidence. His evidence in my view should therefore be taken with a pinch of salt.

As a further point of information, the allegation of forgery/fraud by the appellants, was not pleaded by them but only raised at the final address stage. Reference can be made to the Court of Appeal judgment at page 624 wherein their Lordships said:-

“If the appellants had intended to place reliance on forgery or fraud which they alleged was visible at the trial they would have raised it in their final pleading, the third amended statement of defence filed on 19/6/1990. They should not have alleged the forgery and fraud in their final address as they did. This therefore goes to no issue as they were not pleaded and therefore ought to be discountenanced.”

I cannot agree more with their Lordships of the Court of Appeal. See the case of George v. Dominion Flour Mills (1989) 1 All NLR 71 at 102 wherein it was held that an allegation of fraud in any suit must be pleaded with utmost particularity. The same principle was also adopted and emphasized in Onamade v. A. C. B. Ltd (1997) 1 NWLR (pt.480) p.123.

I have earlier stated in the course of this judgement that the appeal before us is against concurrent findings of the two

…………………….H…………………….

lower courts; it is therefore elementary but well settled that unless there are special circumstances shown by the appellants, it is not open to this court to disturb the said findings of fact made by both the trial and lower courts. See the case of Chinwendu v. Mbamah cited by the learned respondent’s counsel which reference can be found in the lead judgement of my brother. Also the case of Ogbu v. Wokoma (2005) 14 NWLR (pt 944) p.118 at 123 is where circumstances are listed whereby this court can overturn the concurrent decisions of the two lower courts. The appellants in the appeal before us have not met with the criteria that will warrant that the general rule should be overturned.

On the totality therefore, I am in complete agreement with my learned brother Rhodes-Vivour, JSC on his lead judgement that this appeal is devoid of any merit and I also dismiss same in like terms inclusive of the order made as to costs.

KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read in draft the lucid and well articulated judgement of my learned brother, Bode Rhodes – Vivour JSC. He dealt exhaustively with all the issues raised in the appeal. I agree with his reasoning and conclusion that the appeal totally lacks merit and is accordingly dismissed. I abide by the order made on costs for the payment of N50,000.00 (Fifty Thousand Naira) by the appellants to the respondent.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Bode Rhodes-Vivour, JSC. I agree with the reasons for the conclusion reached. My learned brother has comprehensively and quite admirably resolved all the salient issues submitted for the determination of this appeal. I propose, however, to make a few comments in support of the judgment only.

The facts leading to this appeal have been ably set out in the lead judgment and I do not intend to repeat the exercise again. However, suffice it to say that the Respondent, as plaintiff, states that she is the daughter of one late Lazarus Ogbonnaya Ukeje and that her paternity was acknowledged by the said Lazarus Ukeje in his life time. It is her contention that she is entitled to the estate or one of the persons entitled to the estate of late Lazarus Ukeje.
The Appellants however oppose her assertion of being the daughter of the late Lazarus Ukeje. After a consideration of the evidence before him, including documentary evidence, the learned trial judge entered judgment for the plaintiff (now Respondent). An appeal by the Appellants to the Court of Appeal was dismissed.
The Appellants have now appealed to this court.

One major issue or question to be determined here is whether the Respondent was able to adduce cogent and credible evidence to prove that she is the daughter of late Lazarus Ogbonnaya Ukeje. If she was able to do this creditably, then there is no doubt that the two courts below were right to enter judgment in her favour.

The Respondent, to back up her claim, tendered her birth certificate, Form of undertaking and guarantee, judgment in her divorce proceedings and some photographs. Although the Appellants picked holes with the birth certificate and the photographs, the two lower courts held the exhibits as genuine and held that the birth certificate was proof that the Respondent was a biological daughter of Ukeje (late). For me, the objection to the authenticity of the birth certificate was not cogent enough.

The said birth certificate was obtained in 1952 when there was no anticipation that it would be used for litigation more than five decades thereafter. By Section 145(1) of the Evidence Act, 2011, the court should presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. See Mrs. Olajide Okelola v. Adebisi Adeleke (2004) 13 NWLR (Pt 890) 307, Cardozo v. Daniels (1986) 2 NWLR (Pt 20)1.I need to point out that Section 114 of the Evidence Act Cap E14 Laws of the Federation, 2004 is now Section 146 of the Evidence Act, 2011.

I must emphasis that it does not really matter the person who gave information for the birth certificate to be issued. As was rightly held by the two lower courts, whether it was the father or mother of the Respondent who gave the information, the fact remains that an authorized person issued the birth certificate.The Appellants are not attacking the origin of the certificate. All they are saying is that it was not the late Ukeje who gave information for the registration of the birth of the Respondent in 1952. But, where is the evidence? It is not enough for a party to make an allegation before a court, he must lead credible evidence to prove same. SeeUnion Bank Plc v. Astra Builders (WA) Ltd (2010) 5 NWLR (Pt 1185)1; Imana V Robinson (1979) 3 – 4 SC. 1.Since the Appellants were unable to lead evidence to rebut the presumption that Exhibit H is genuine in view of Section 186 of the Evidence Act 2011, I agree with the court below that the Respondent was able to establish that she is a biological daughter of late Ukeje. It is on this note that I also agree that the Respondent is entitled to share in the estate of late Ukeje her father.
I also agree that by virtue of Section 42(1) of the 1999 constitution of the Federal Republic of Nigeria (then S.39 (1) of 1979 constitution), any customary law which says or tends to suggest that a female child cannot inherit the property of her father, is not only unconstitutional but also null and void.

In view of all I have said above and the fuller exposition made in the lead judgment of my learned brother Bode Rhodes-Vivour, JSC, I agree that this appeal lacks merit and is hereby dismissed. I abide by all the consequential orders made in the lead judgment, that relating to costs, inclusive.