Before Their Lordships
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. REGINALD AZUBUIKE ADIMORA
2. GERALD U. ADIMORA- Appellants
AND
1. GEOFFERY O. ADIMORA
2. RUBEN NWOYE –Respondents
…………………….A…………………….
(a) A declaration that the plaintiff is the owner and the person entitled to the statutory right of occupancy of the house and premises known as and called No. 8 Oranne Street, Ogui New Layout, Enugu within the jurisdiction of this Honourable Court with the annual value of 20.00 (Twenty Naira).
(b) A declaration that the said Power of Attorney given to the second Defendant to manage and superintend the management of the said house and premises known as and called No. 8 Oraifite Street, Ogui New Layout, Enugu is null and void as same was given without lawful authority.
(c) A declaration that the purported assignment of the said No.8 Oraifite Street, Ogui New Layout, Enugu by the 2nd defendant to the 3rd defendant is null and void.
(d) 50, 000.00 (fifty thousand naira) special and general damages 40, 000.00 (forty thousand naira) expected profit from business with Gerald Adimora. 10,000.00 (ten thousand naira) General damages for trespass. The total is 50, 000.00 (fifty thousand naira).
(e) Perpetual injunction restraining the defendants, their servants or agents or otherwise however from further trespass over the house and premises called No. 8 Oraifite Street, Ogui New Layout, Enugu. (See pages 11 – 17 of the record).
Upon being served with processes, the 1st Respondent filed and relied on his Amended Statement of Defense. On the part of the 2nd Respondent, in addition to his Amended Statement of Defense he also filed a Counter Claim to which the Appellants filed a reply. The 2nd Respondent claimed in his counter claims as follows:-
(a) A DECLARATION that the 3rd defendant is the owner and the person entitled to the statutory right of occupancy of the house and premises known as and called No.8 Oraifite Street, Ogui. New Layout, Enugu, within the jurisdiction of this Hon. Court.
(b) A DECLARATION that the Power of Attorney given by the 1st Defendant to the 2nd Defendant dated 3rd June, 1975 and registered as No. 92 at page 92 in volume 733 of the Lands Registry in the Office at Enugu is Lawful and valid.
(c) A DECLARATION that the sale of the property at No.8, Oraifite Street, to the 3rd Defendant by the 2nd Defendant for the sum of 85,000.00 (eighty five thousand naira) is lawful and valid.
(d) A DECLARATION that the late Gabriel Adimora’s signature on the Power of Attorney dated 2nd April, 1974 and the one on the Power of Attorney dated 6th April, 1975 are the same as the former Plaintiff.
(e) A DECLARATION that the ASSIGNMENT of the property, No. 8, Oraifite Street, Ogui New Layout, Enugu to the 3rd Defendant by the 2nd Defendant is Lawful, valid and subsisting.
(f) A DECLARATION that the 3rd Defendant is entitled to the rents collected by the Plaintiffs from the tenants residing in the house from the date the house was the 3rd Defendant’s that is 20th September, 1990, to the date possession thereof is given to the 3rd Defendant.
(g) An ORDER that the plaintiffs should account to the 3rd defendant for the rents collected by the plaintiffs from the date the house was assigned to him, to the date possession thereof is given to the 3rd defendant.
(h) An ORDER that the plaintiffs should pay over to the 3rd defendant the rent they collected from the tenants from the date the house was assigned, to the 3rd defendant to the date possession thereof is given to the 3rd defendant.
…………………….B…………………….
(i) 10,000.00 (ten thousand naira) General Damages.
(j) PERPETUAL INJUNCTION restraining the plaintiffs, their servants, agents privies or whosoever from further trespass over the house and premises known as the called No. 8 Oraifite Street, Ogui New Layout, Enugu.” (See pages 45 56 of the record).
After close of pleadings, this matter suffered a chequered history. The case was first set down for hearing before M. Edozie, J (now deceased). Before the demise of M. Edozie, J the original plaintiff in this suit, Gabriel Adimora, but that was after he had testified and was fully cross examined by the Respondents on record and the Defendant at the trial Court, now deceased. His evidence was taken on the 19-1-1994 and 2-3-1994 and was tendered as an Exhibit before E. C. Ahanonu, J (now deceased) who started the casede novo. It was tendered on the 11-4-2001 (see pages 10 -72 and 270 – 275 of the record).
At the time the case started de novo before the said E. C. Ahanonu J., the original Plaintiff who died in the year 1999 was substituted by the present Appellants on record. Additional three witnesses testified for the Appellants and tendered several documents. The Respondent and the 2nd Defendant at the trial Court, now deceased called three witnesses and tendered several documents after which written addresses were ordered, filed,served and adopted on the 25-7-2005. The trial Court delivered judgment in favour of the 2nd Respondents and dismissed the Appellant’s claim. Dissatisfied with the said judgment, the Appellants have filed this Appeal vide their Notice of Appeal dated the 1-8-2005. The Notice of Appeal was further Amended pursuant to an Order of this Court made on the 30-10-2017. There are five (5) Grounds of Appeal filed which are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial judge erred in law when he held that Exhibit E, the Power of Attorney dated 6-4-1975 was validly made by late Gabriel Adimora and validly transferred irrevocable Power to the 1st Defendant.
2. The learned trial judge erred in law when he held that the 3rd Defendant was a bona fide purchaser for value without Notice.
3. The learned trial judge erred in law when he held that the defense or plea of laches and acquiescence can avail the 3rd Defendant.
4. The learned trial judge erred in law when he failed to consider the legal validity of Exhibits F and O upon which the 2nd Defendant based his title.
5. The learned trial judge erred in law when he gave judgment against the weight of evidence.
ISSUES FOR DETERMINATION;
Four issues were nominated by the Appellants for the determination of this Appeal thus;
1. Whether the Plaintiffs/Appellants and the 2nd Defendant/Respondent have discharged the burden of proof placed on them by law, having regards to their respective claims and counter claims, averments in their respective pleading and the evidence before the Court; was the learned trial judge right in the circumstance when he gave judgment in favour of the 2nd Defendant/Respondent – ground five.
2. Whether late Gabriel Adimora made Exhibit E or not and whether Exhibit F was made with his consent and authority -ground one.
3. Whether Exhibit F was validly made and whether Exhibit O flowing from it qualifies as a title document conferring title or ownership of the property in dispute on the 2nd Defendant at the trial Court either as a mortgage or a pledge -ground four.
4. Whether the trial Court was right when it held that the 2nd Respondent was a bonafide purchaser for
…………………….C…………………….
value without notice and that the defense of laches and acquiescence will avail the 2nd Respondent – ground two and three.
On the part of the 2nd Respondent, these issues were adopted by Counsel and it is in respect of these issues that learned Counsel for the parties addressed the Court in their briefs of argument extensively and cited a number of decided cases in support of their arguments.
The Appellants Brief of argument dated the 9-11-2017 was settled by G. A. EKOH ESQ., and filed on the 17-11-2017 while the 2nd Respondent’s Brief of argument dated the 5-12-2017 was filed and served on the same date and settled by AWFORKANSI NNADIUME ESQ., At the hearing of this Appeal on the 5-12-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.
SUBMISSIONS OF COUNSEL;
APPELLANTS;
ISSUE ONE;
Whether the Plaintiffs/Appellants and the 2nd Defendant /Respondent have discharged the burden of proof placed on them by law having regards to their respective claims and counter claims, averments in their respective pleading and the evidence before the Court was the learned trial judge right in the circumstance when he gave judgment in favour of the 2nd Defendant/Respondent.
It was the submission of Counsel that the Appellants are required to prove their case on a balance of probabilities or on a preponderance of evidence and that the 2nd Respondent who filed a Counter-Claim bears the same burden of proving his Counter Claim and to that extent stands as a plaintiff with regards to the said Counter Claim. Counsel cited the case of EZEGWU vs. NWAIGENE (2010) ALL FWLR (PT. 536) 470 AT 490 PARAS E – D. Counsel further submitted that the Appellants in proof of their case gave evidence in line with their pleadings (Amended Statement of Claim and Reply) and that the Appellant’s case is that by a Lease Agreement dated 211/1963 and registered in Enugu as 66/66/332 (Exhibit C) made between late Gabriel Adimora and Gabriel Agbo, the original Plaintiff (Gabriel Adimora) became the bonafide owner of the property in dispute. (Paragraphs 1 to 8 of the amended statement of claim) (Pages 11 to 16, 74 to 82 and 270 to 280 of the record).
Counsel said that the late Gabriel Adimora (the original plaintiff in this suit) during his Illness gave Exhibit D to the 1st Respondent to manage the said premises but that before the 1st Respondent could commence the management of the said property, the said late Gabriel Adimora got well and continued with the management of the estate. (Paragraphs 9 and 10 of the amended statement of claim and page 272 paragraph 3); that at the trial and in his pleadings the said late Gabriel Adimora denied making Exhibit E and this piece of evidence and pleadings were admitted by the 1st Respondent who testified as DW1; that the 1st Respondent also admitted in his evidence and pleadings that Exhibit E was forged by the 2nd Defendant at the trial Court without the knowledge of the said Gabriel Adimora and the Appellants (paragraphs 10b to 12 of the amended statement of claim and paragraphs 5 to 13 of the 1st Respondent’s statement of defense). Counsel submitted that facts admitted need no further proof and cited the case of IGBOJIMADU vs. IBEABUCHI (1998) 1 NWLR (P. 533) AT 179 para. E.
Counsel further submitted that the Late Gabriel Adimora and the Appellants now on record also testified
…………………….D…………………….
that they were not part of the transactions that also resulted to the making of Exhibits F, G, H, J, O, etc. and that these Exhibits were fraudulently made by the 1st Respondent and the 2nd Defendant at the trial Court without his consent, authority and knowledge; that the 1st Respondent also admitted the aforesaid facts in his pleadings and evidence (paragraphs 12 to 23 of the amended statement of claim and 5 to 26 of the 1st Respondent’s statement of defense). Late Gabriel Adimora also testified to the effect that on the 1-11-1988 when he discovered that the Respondents and the 2nd Defendant at the trial Court were dealing with the property in dispute without his consent, authority and knowledge, he caused a caveat (notice) to be published in the Daily Star Newspaper i.e. Exhibit L and L1 and the said publication in the said Daily Newspaper is enough notice to the 2nd Respondent who allegedly acquired the property in 1990 about two (2) years after the notice. Apart from the said caveat in the newspaper, he posted notices/caveat on the walls of the property warning that the house is not for sale.
Learned Counsel referred Court to IDUNDUN vs. OKUMAGBA (1976) 7 TO 10, and NKADO vs. OBIANO (1997) 5 SCNJ 33; MANI vs. SHANONO (2007) ALL FWLR (PT. 345) 303 and submitted that in the instant case, the Appellants having chosen the second and fourth methods above as ways of proving title to the property in dispute, also tendered in proof, Exhibit C, which is the original lease agreement made in 1963 in favour of the former Plaintiff and that by the evidence adduced by both parties i.e. the Appellants, the Respondents and the 2nd Defendant at the trial, it is clear that the Appellants have been in long and uninterrupted possession of the land from 1963 till date. SeeOLADIPUPO vs. OLANIYAN (2000) 1 NWLR (PT. 642) 556. Consequently, Counsel argued that the Appellants have discharged the onus placed on them i.e. proof on balance of probabilities or on preponderance of evidence that the property in dispute belongs to the Appellants.
Appellant’s Counsel also contended that where a Plaintiff has proved its case on the preponderance of evidence (as in this case) the burden of proof will shift to the Defendant or Defendants/Respondents to prove that the reliefs the Plaintiffs/Appellants sought cannot be granted as the onus of proof in civil cases is not static and where the Defendant or one of the Defendants counter claimed as in this case, where the 2nd Respondent has a counter claim, the onus is on him to prove his case on the preponderance of evidence. He cited the case of MALLO vs. MALLAM (2006) ALL FWLR (PT. 306) 972 AT 981 and submitted that the trial Court was wrong in dismissing the Plaintiffs/Appellants claim and holding that they are not entitled to judgment.
Counsel further contended that the 2nd Respondent in addition to his defense filed a counter claim i.e. paragraph 37 (a) to (j) of his Amended Statement of Defense and Counter Claim dated 12-2-2001. (Pages 45 – 56 of the record). It was also contended by Counsel that the 2nd Defendant at the trial and 2nd Respondent’s averment in his pleadings and evidence that late Gabriel Adimora swore to an affidavit of loss of the original title documents in respect of the land in dispute was discredited by the fact that the alleged affidavit, though pleaded was not eventually tendered and the fact that late Gabriel Adimora tendered Exhibit C, his original title document which the 2nd Defendant at the trial and 2nd Respondent alleged were lost. He further said that the evidence and pleadings of the 1st Respondent that it was himself and the 2nd Defendant at the trial that forged the said affidavit so as to enable them use the certified true copy of Exhibit C for their fraudulent objective also lends credence to the discredited nature of their evidence. See BAMGBOSE vs. JIAZA (1991) 3 NWLR (PT. 177) AT 74.
Counsel further contended that the 2nd Respondent’s case that he derives his title by virtue of Exhibit J; while the 2nd Defendant at the trial said that he derives his title by virtue of Exhibit F which
…………………….E…………………….
they (the 2nd Defendant at the trial and 2nd Respondent) said were executed in favour of the 2nd Defendant at the trial by virtue of the alleged Exhibit E, was not proven by both the 2nd Defendant at the trial and 2nd Respondent that these i.e., Exhibits E and F were duly executed and authenticated by a notary public, a magistrate or a judge as required by Section 118 of the Evidence Act. See MELWANI vs. FIVE STAR IND. LTD (2002) 3 NWLR (PT. 753) 217. He said also that it was not proved by the 2nd Defendant at the trial that the 2nd Respondent’s Exhibits E and F were for valuable consideration as required by law. See CHIME vs. CHIME (2001) 3 NWLR (PT. 701) 527. On the face of the said Exhibits E and F, Counsel said that it is clear that they were not made for valuable consideration and that the onus on the 2nd Defendant at the trial and 2nd Respondent to prove their respective titles have not been discharged.
Counsel therefore urged this Court to hold that the 2nd Respondent has failed to discharge the onus placed on him as Counter Claimant, to prove his counter-claim on a balance of probability or on a preponderance of evidence. He also urged this Court to dismiss his counter claim in its entirety.
ISSUE TWO;
Whether late Gabriel Adimora made Exhibit E or not and whether Exhibit F was made with his consent and authority?
The submission of Counsel is that the assertion and pleadings of the 2nd Defendant at the trial and 2nd Respondent that the late Gabriel Adimora made Exhibit E in favour of the 1st Respondent were discredited by the Appellants and the 1st Respondent. He said that it is the case of the Appellants and in fact the late Gabriel Adimora himself that he never made Exhibit E and that he only made Exhibit D. Counsel said that the Appellant’s case was supported by the pleadings and evidence of the 1st Respondent in this regard who testified in line with his pleadings as DW1 and supported the case of the Appellants by so doing when he told the Court below that the purported signature of late Gabriel Adimora in Exhibit E was forged by the 2nd Defendant. (See paragraphs 9 to 11 of the amended statement of claim and 6 to 9 of the amended statement of defense of the 1st Respondent). Counsel therefore contended that the onus was on the Respondents and the Defendant at the Court below to prove that Exhibit E was actually signed or executed by the late Gabriel Adimora. According to Counsel this onus was not discharged by the Respondents and the Defendant at the Court below.
Learned Counsel also drew attention to Exhibit E, which he said will show that the character of paragraph 7 is not the same as paragraphs 1 to 6 and that the typing of the said paragraph 7 is not straight like paragraphs 1 to 6 and this strongly suggests that whoever made Exhibit E smuggled that paragraph into the document after it had been made and executed. Again, Counsel said that though the document in Exhibit E bears the stamp of A.T. UDECHUKWU & CO. dated sometime in April, 1975, it was not signed by the said A.T. UDECHUKWU or any Solicitor from his chambers as having produced it.
Counsel contended that the Respondents and the Defendant at the trial did not call the said A.T. UDECHUKWU to show if his chambers actually prepared the said Exhibit E for the late Gabriel Adimora. He argued that this is very necessary in view of the evidence of late Gabriel Adimora that he never retained the services of A.T. UDECHUKWU and the 1st Respondent’s evidence and pleadings that A.T. UDECHUKWU & CO never prepared the said Exhibit E. Counsel drew attention to the 1st Respondent’s evidence who said that the stamping of the said Exhibit E was done by the clerk of A.T. UDECHUKWU & CO without the consent and authority of A.T. UDECHUKWU after she was given 70.00 for the stamping. Counsel further drew attention to the 2nd Defendant at the trial and 2nd Respondent who never challenged the 1st Respondent on this issue under cross-examination. Counsel submitted that the Appellants were entitled to take benefit of DW1’s evidence and pleading in this regard (pages 18-24 and 84-108 of the record). He cited
…………………….F…………………….
the cases of UBA LTD vs. ADEMUYIWA (1999) 11 NWLR (PT. 628) 570; USMAN vs. K.S.H.A.(2007) 11 NWLR (PT 1044) 148; OLATUNJI vs. ADISA (1995) 2 NWLR (PT. 376) 167 AT 181; AKINTOLA vs. SOLANO (1986) 2 NWLR (PT 24) 598; OKAFOR vs. IDIGO (1984) 1 SCNLR 481 AT 512.
It was also submitted that the admission of the 1st Respondent who testified as DW1 at the trial in line with his pleadings as regards the making of Exhibits E and F supports and re-enforced the Appellant’s case. See JIBRIL vs. MIL. ADMIN KWARA STATE (2007) 3 NWLR (PT 1021) 357 AT 382; KIMDEY & ORS vs. THE GOV OF GONGOLA STATE (1988)2 NWLR (PT. 77) 445; OSENI ABOYEJI vs. AMUSA MOMOH & 2 ORS (1994) 4 S.C.N.J. 302; MAKANJUOLA OLATUNJI vs. ALH. MUIBI ADISA (1995) 2 NWLR (PT. 376) 167.
Counsel further submitted that despite the averment on the face of the documents, Exhibits E and F cannot be regarded as Irrevocable Power of Attorney because none of them is shown to have been given for valuable consideration. See CHIME vs. CHIME (2001) (Supra) AT 555; AGWARANGBO vs. NAKANDE (2000) 9 NWLR (PT. 672) 341 AT 366. Counsel also argued that there is evidence, which was not challenged that late Gabriel Adimora had given Exhibit D to the 1st Respondent because he (Gabriel) was sick and that he recovered and before the 1st Respondent ever had cause to exercise that power donated to him, the Late Gabriel Adimora took up and continued to manage the property himself until his death and thereafter the Appellants now on record managed the same without interruption until date. According to Counsel, the above evidence, which the trial Court had no course to doubt or reject, completely eliminates any situation that could necessitate the making of an irrevocable power of Attorney, Exhibit E.
It was also submitted that the material contradictions in the various evidence and pleadings of the Respondents and the 2nd Defendant at the trial as well as the total absence of the required type and quantum of evidence have done no favour to the case of the 2nd Defendant and the 2nd Respondent with regards to Exhibit E and by extension, Exhibit F and other deeds. Still on the issue of the authenticity of Exhibit E, Counsel also drew Court’s attention to the evidence of the present 1st Appellant on record who testified that Exhibit E was not witnessed by Gerald Adimora, the 2nd Appellant. He said that the DW1 admitted this fact and said that Exhibit E was not witnessed by Gerald Adimora and that it was himself that wrote Gerald’s name on the column made for witness in Exhibit E and this was supported by the evidence of the 1st Appellant who testified as PW3, that Gerald Adimora, the present 2nd Appellant did not witness Exhibit E. (pages 74-82 and 85 -108 of the record).
Counsel argued that a close look at the foot of Exhibits D and E shows that the handwriting of Gabriel Ugochukwu Gerald Adimora, the present 2nd Appellant who witnessed the said Exhibit D that is not in controversy and his purported handwriting in Exhibit E, the one in controversy are radically different (pages 281 – 284 of the record). He added that the registration of Exhibit E does not cure any defect in the document and will not serve to clothe it with the validity which it does not ab-initio possess. See OMOSANUA vs. ANIFOWOSHE(1959) FSC 38 where MBANEFO, F.J. quoted with approval Section 19 of the Land Instrument Registration Law (Laws of Eastern Nigeria 1963) then applicable to Enugu State as follows:
Registration shall not cure any defect in any instrument or subject to the provision of this law confer upon it any validity which it would not otherwise have had.
See also FOLASHADE vs. DUROSHOLA (1961) 1 ALL NLR 87; EYO vs. INYANG (2001) 8 NWLR (PT. 715) 304.
…………………….G…………………….
The evidence of DW4, Gilbert Eke, a Principal Estate Manager in the Ministry of Lands, Enugu State was drawn to the attention of this Court and also supports the above position. In his evidence during cross-examination the DW4, told the Court below that at the Land Registry, they do not investigate the truthfulness or the authenticity of the document meant for registration and they do not also verify or investigate whether the signature is forged or not and that they only register title deeds given to them to register (Pages 137- 138 of the record). In this regard, Counsel cited the case of BRAIMAH vs. ABASI (1998) 12 NWLR (PT. 581) 167 AT 180 paras. F- G where the Supreme Court per OGUNDARE, JSC held as follows:
I am satisfied that on the evidence of Exhibit 2 is a forgery and being so the transaction it purports to evidence is completely vitiated; it transferred no title to the transferee mentioned therein or to any other person. There is in my respectful view, sufficient evidence to satisfy the requirement of Section 138 of the Evidence Act as to proof beyond reasonable doubt.”
In view of the foregoing and upon the authority of the above decision of the Supreme Court, Counsel urged this Court to hold that the Respondents and the 2nd Defendant at the trial not having proved the authenticity and validity of Exhibit E, and the same having been proved to be forged, could not and did not confer any power to the 1st Respondent and consequently all the transactions of the Respondents and the 2nd Defendant at the trial Court founded on the same are null, void and of no effect whatsoever with regards to the Appellants property, the subject matter of this suit. In the same vein, he said that the 1st Respondent did not obtain the consent and authority of the original Plaintiff, late Gabriel Adimora before he purportedly executed Exhibit F, which Exhibit F is also null and void and of no effect whatsoever. In view of the foregoing, he said that the Appellants submitted that the Court below was grossly in error when he dismissed the Plaintiffs/Appellants’ case and entered judgment in favour of the 2nd Respondent.
ISSUE THREE;
Whether, Exhibit F was validly made and whether Exhibit O flowing from it qualifies as a title document conferring title or ownership of the property in dispute on the 2nd Defendant at the trial Court either as a Mortgage or a Pledge?
Counsel contended that Exhibit O on the face of it does not qualify as a title document and does not also qualify as a mortgage or pledge. He said that there was no evidence from either the Respondent or the 2nd Defendant at the trial or the Appellants that the 2nd Defendant at the trial runs a mortgage institution or is a money lender. Counsel drew attention to Late Gabriel Adimora in his evidence and pleadings where he stated that he did not give authority to the 1st Respondent or any of the Respondents and the 2nd Defendant at the trial to sell or use his property as security for loan. Counsel argued that the 1st Respondent admitted that he had neither the consent, authority nor knowledge of the late Gabriel Adimora to sell or to use the property in dispute as security for a loan or to pledge the property in dispute.
Learned Counsel referred copiously to the evidence of the parties on record and contended that the 2nd Defendant at the trial gave evidence that by Exhibit O (the purported loan agreement), it was agreed that the alleged Eight hundred (800.00) Naira only advanced to the 1st Respondent (unlawfully) was to be repaid within two (2) years i.e. from 23-6-1975 to 23-6-1977 and that going by the above agreement, the 2nd Defendant at the trial was not entitled to deal with or alienate the property before the end of the two year period, which was supposed to end, on the 22-6-1977.
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Counsel also reminded Court that the 2nd Defendant at the trial admitted that he mortgaged the said property as security to the Standard Bank just a few months after the alleged agreement in Exhibit O and that this confirms the Appellant’s and the 1st Respondent’s case that the 2nd Defendant at the trial had fraudulent intent. He also drew attention to the 1st Respondent’s testimony that he eventually repaid the alleged Eight hundred (800.00) Naira loan but that the 2nd Defendant at the trial because of his fraudulent intentions refused to return to him (the 1st Respondent) the title documents he gave to him (the 2nd Defendant at the trial). Counsel said that it is in evidence of both parties that when late Gabriel Adimora became aware of the fact that the Respondents and the 2nd Defendant at the trial were dealing with his property now in dispute without his consent and authority, he (Gabriel Adimora) offered to pay by installments, the said sum of Fifty Thousand (50,000.00) the 2nd Defendant at the trial alleged that he borrowed from Standard Bank and that this offer was turned down by the 2nd Defendant who insisted that the said money must be paid en-block in furtherance of his fraudulent pursuit.
Counsel also argued that Exhibit O cannot be said to have automatically transferred the ownership of the property in dispute to the 2nd Defendant/Respondent with effect from the date it was made i.e. 23-6-75 as this would be a further indication that Exhibit F was not intended to be irrevocable since passing of legal title if any, was supposed to be conditional by virtue of the said Exhibit O. According to Counsel, it is pertinent to note that Exhibits F and O were purportedly made the same day i.e. 23rd June, 1975 so it was not possible for both Exhibits to take effect on the said 23rd of June, 1975 as alleged by the 2nd Defendant/Respondent. Counsel said that this further supports the Plaintiffs/Appellant’s case that the 2nd Defendant/Respondent forged Exhibit E and fraudulently prepared Exhibits F and O to disposes the Plaintiffs/Appellants of their interest in the property in dispute.
It was further argued by Counsel that Exhibits O and F were purportedly made on the 23-6-1975 and that by the content of Exhibit O, the 1st Respondent and the 2nd Defendant at the trial allegedly gave the sum of Eight Hundred (N800.00) Naira to the 1st Respondent, to be paid back within two years from the date Exhibit O was signed by the both of them. He said that by Exhibit F, the 1st Respondent purportedly used the property in dispute, i.e., No. 8 Oraifite Street Ogui New Layout, Enugu as security for the said Eight Hundred (N800.00) Naira loan without the consent and authority of the original Plaintiff in this suit, late Gabriel Adimora. According to Counsel going by the content of the said Exhibit O, the money was supposed to be repaid to the 2nd Defendant by the 1st Respondent on or before the 22-6-1977; but that because of the fraudulent intentions of the 2nd Defendant, he fraudulently mortgaged the said property to the then Standard Bank (now First Bank) without the consent and authority of the property owner, late Gabriel Adimora barely about two months after Exhibit O was entered into. (Pages 289 – 293 of the record).
However, without prejudice to Appellant’s position that the 1st Respondent never had the authority of the original Plaintiff to deal with the property by virtue of Exhibit E, Counsel submitted that Exhibit G, the mortgage agreement entered into by the 2nd Defendant, now deceased on the 11-8-1975, is null and void because paragraph 4 of Exhibit O clearly shows that he could only deal with the property as such, if the 1st Respondent failed to pay the Eight Hundred (N800.00) Naira after the expiration of two years i.e. after the 22-6-1977. On account of this position, Counsel reproduced the said paragraph 4 thus;
Should the said Mr. Geoffrey Adimora fail to repay the said sum of N800.00 after the last day making it two years from the signing of this Agreement, Mr. B.B.C. Ezeala shall have full right to take over and own the said No. 8 Oraifite Street, Ogui New Layout Enugu.
…………………….I…………………….
(See Page 323 of the record).
It was further submitted by Counsel that no person is allowed to benefit from his own fraudulent or criminal Act and referred to Section 8(1) of the Action Law, Cap 3 Laws of Enugu State 2004, which provides as follows:
No person shall claim any benefit from his own criminal Act.
See the case of BUHARI vs. OBASANJO (2005) ALL FWLR (PT. 258) 1604 AT 1681 Para. D where the Supreme Court held as follows:
It is trite law that a party should not be allowed to derive benefits from his own wrongs, lest the law becomes an instrument of injustice.
Counsel also cited the case of AFRICAN PETROLEUM LTD vs. OWODUNNI (1991) 8 NWLR (PT. 210) 391 AT 421 and contended that none of the Respondents or the 2nd Defendant, now deceased would be entitled to derive any benefit from the above series of fraudulent transactions they had in relation to the property in dispute; that the 2nd Respondent cannot validly derive his purported title, shown in Exhibit J from the 1st Respondent’s and the 2nd Defendant’s, now deceased invalid Exhibits E, F and O since the said Exhibits E, F and O are also invalid and were fraudulent transactions made without the consent and authority of late Gabriel Adimora, the original owner of the property in dispute who remained the valid owner of the said property by virtue of Exhibit C i.e. the Lease Agreement of 2-1-1963 at the time the afore-stated Exhibits were purportedly executed. Counsel also cited the case of OKESUJI vs. LAWAL (1991) 1 WASC (PT. 8) 381, where the Appellant traced her title to an invalid title from the 2nd Defendant. Consequently, her own title must be and is in fact defective however innocent the 2nd Defendant. In essence she is said not to have anything in law as the said 2nd Defendant had no valid title to pass to her under the Latin maxim; Nemo dat quod non habet. Counsel therefore urged this Court to hold that the 2nd Respondent did not acquire any valid interest in the property in dispute and that the learned trial judge was in error to have found in his favour.
It was also submitted by Counsel that Exhibit O and the oral evidence and pleadings of the 2nd Defendant at the Court below, now deceased with respect to the purported transactions in Exhibit O are contradictory as the same does not bear the fundamental elements and characteristics of either a deed of mortgage, a pledge or an outright sale or transfer of the property in dispute to the 2nd Defendant. Counsel therefore called on the Court to hold that Exhibit O is neither qualified as a title document nor a mortgage or a pledge and that the onus placed on the 2nd Defendant to so prove was not discharged.
ISSUE FOUR;
Whether the trial Court was right when it held that the 3rd Defendant/Respondent was bonafide purchaser for value without notice and that the defense of laches and acquiescence will avail the 3rd Defendant/Respondent?
Under this issue, Counsel submitted that the defense of bonafide purchaser for value without notice cannot avail the 2nd Respondent in this instant case since the publication in Exhibits L and L1 was made in 1988 i.e. about o yeatwrs before the purported transfer to the 2nd Respondent in 1990, by virtue of Exhibit J, he said that the 2nd Respondent is deemed by law to have notice of the unlawful transactions with regards to the Plaintiffs/Appellants’ property now in dispute; that apart from the said caveat in Exhibits “L” and “L1” the original Plaintiff, the late Gabriel Adimora went further to write Notices boldly posted on the four walls of
…………………….J…………………….
the property in dispute, No. 8 Oraifite, Street, Ogui New Layout, Enugu to the effect that the property was not for sale.
Counsel drew attention to the evidence of the Original Plaintiff where he testified in the concluding part of page 274 of the printed records during cross examination by the 2nd Respondent as follows:
“When I discovered that some people were meddling with my property I went to the Daily Star and published a warning, the publication was in November 1988.”
See the evidence of the PW2 who testified and tendered the said Exhibits L and L1 as follows:
The certified true copy of the Daily Star Newspapers of Tuesday November 1st 1988 from pages 3 to 16, especially page 5 thereof is hereby admitted and marked Exhibit L and L1. (Pages 74 and 305 – 319 of the record).
Counsel further drew attention to the evidence of the PW3 who testified during cross-examination by the 2nd Respondent’s Counsel as follows:
“Yes, my father made use of Solicitor in preparing Exhibit D. I cannot remember the date or year when my father told the people were interfering with my property (Sic) I see Exhibit L. it is a Daily Star publication of 1/11/88 in which my father entered a caveat about the house my father made use of Lawyer to enter this caveat. (Page 79 of the record).
In the case of DW1, Counsel said that in his testimony he said as follows;
My father went to Barrister Ewelukwa. He said there should be publication in the Daily Star. The publication was made in November 1988. Says Exhibit L is the Notice published in the Daily Star. After the publication he posted Notices on the wall that the house was not for sale. (Page 90 of the record).
Again, Counsel said that in the DW1 further testified thus;
The 3rd Defendant does not own the house. It belongs to my father. 3rd Defendant knew my father owned the house since my father issued Exhibit L and pasted Notices on the wall of the house. (Page 91 of the record)
Arising from the foregoing, Counsel submitted that the above evidence on record was not challenged by the 2nd Respondent and the 2nd Defendant, and that it is clear that the defense of bonafide purchaser for Value Without Notice will not avail the 2nd Respondent as he had ample and requisite Notices but chose to ignore them. Counsel cited the case of ALAHAJA JURADAT ANIMASHAUN vs. G. A. OLOJO (1990) 10 SCNJ 43. It was further submitted by Counsel that it is the duty of a prospective buyer of a piece of land or property (2nd Respondent) to thoroughly investigate, and diligently conduct a search in the lands Registry in respect of the land or property; that he should visit the site for physical examination and thoroughly investigate the root of title and physical condition of the land or property in question before he pays for it. The reason for this, Counsel said is not far-fetched; that even though registration of title document in respect of a given property merely states the state of affairs referable to the property, it does not remedy or cure any defective root of title vitiated. See OMOSANUA vs. ANIFOWOSHE (1959) FSC.
It is also contended by Counsel that the doctrine of caveat emptor provides that it is up to a purchaser whether by private treaty or public auction to satisfy himself as to the right title and interest he is buying, and if he buys without doing so he cannot complain if he is ousted by a 3rd party proving a better title. See CWO vs. KASUMU 11 NLR 116; EGBEYEMI vs. G. B. OLIVANT & CO. LTD (1939) 5 WACA 147 AT 150; KAIYAOJA vs. EGUNLA (1974) 1 ALL NLR (PT. 2) 438 AT 443;
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Counsel submitted that if the 2nd Respondent had visited the said property in dispute, before his purported purchase in Exhibit J., he would have seen the Caveat or Notices pasted on the walls of the property.
On the 2nd Respondent’s reliance on the doctrine of laches and acquiescence, Counsel argued that it cannot avail the 2nd Respondent and the 2nd Defendant because there was no evidence whatsoever to establish laches and acquiescence against the Plaintiffs/Appellants or the original Plaintiff. He said that it is in evidence by the late Gabriel Adimora, the original Plaintiff that as soon as he became aware of some unlawful and unauthorized dealings on his property, he took necessary steps by giving a public notice, Exhibits L, L1; that he tried to recover the property from the 2nd Defendant before the alleged assignment to the 2nd Respondent; that he then filed this suit against all the offending parties. See KAYODE vs. ODUTOLA (2001) 11 NWLR (PT. 725) 659 AT 676 paras. B – D, where the Supreme Court stated four ingredients that must be present for the plea of laches and acquiescence to be sustained. Counsel submitted that the 2nd Respondent and the 2nd Defendant failed to prove all the ingredients required for the application of the doctrine of laches and acquiescence and hence the 2nd Respondent’s plea of laches and acquiescence cannot avail him. See the case of OWIE vs. IGHIWI (2005) ALL FWLR (PT. 248) 1762 AT 1786 Paras. C E.
The submission of Counsel is that it is the 2nd Respondent and the 2nd Defendant who ignored the public notice, Exhibit L and L1, they also ignore the notices boldly written on the four walls of the property in dispute and the 2nd Defendant ignore the original Plaintiff’s attempt to recover the said property he fraudulently and allegedly acquired from the 1st Respondent and as such the 2nd Respondent’s and the 2nd Defendant reliance on the defense of lashes and acquiescence cannot avail them. In addition, Counsel stated that although the 2nd Respondent pleaded the equitable defense of laches and acquiescence in his amended statement of Defense, that it was not proved at the trial. See ALABI vs. DOHERTY (2006) ALL FWLR (PT. 299) 1527 AT 1544 Para. C; IHEANACHO vs. EJIOGU (1995) 4 NWLR (PT. 389) 324; ALAKIJA vs. ABDULAI(1998) 6 NWLR (PT. 552) 1.
It was finally submitted by Counsel that since the 2nd Respondent failed to prove his defense of laches and acquiescence with evidence, such defense cannot avail him. See NIGER MILLS CO. PLC vs. AGUBE (2008) ALL FWLR (PT. 427) 86 AT 112 Para. B, where this Court held as follows:
“If it must be said for the umpteenth time pleadings are not evidence and pleadings cannot be a substitute for evidence on the record of the Court. In fact, averments in the pleadings that are not supported by evidence are deemed abandoned.”
See ADENUGBA vs. OKELOLA (2008) ALL FWLR (PT. 398) 292 AT 310 Paras. B-C; N.N.B PLC vs. DENCLAG LTD(2005) 4 NWLR (PT. 916) 549; SHITTU vs. FASHAWE (2005) 14 NWLR (PT. 946) 671; DUROSARO vs. AYORINDE(2005) 8 NWLR (PT. 927) 407. He said that having failed to prove the defense of laches and acquiescence raised in his pleadings with evidence, the defense is bound to fail since pleadings are not evidence. He urged this Court to allow the Appeal and set aside the judgment of the Court below.
2nd RESPONDENT;
ISSUE ONE;
Whether the Plaintiff/Appellants and the 3rd Defendant (now 2nd Respondent) have discharged the burden of proof placed on them by law having regard to their respective pleadings and the evidence before the Court. Was the learned trial judge right in the circumstance when he gave judgment in favour of the 3rd Defendant/Respondent, now 2nd Respondent?
Counsel submitted that the trial Court did a comprehensive analysis of the evidence of all the parties
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in the suit and that in trying to show that the Plaintiffs did not prove their case on a preponderance of evidence, painstakingly listed the loopholes in the Plaintiffs case, which it numbered a-e at page 42 of the judgment and page 257 of the records. According to Counsel these are issues arising from the evidence of the Plaintiff and their witnesses. Counsel further submitted that from the evidence of the original Plaintiff that Exhibit E was forged, the Court went down memory lane; x-raying the admission of the DW1, that he participated in forging Exhibit E when Court said inter-alia at page 32 of the Judgment and page 247 of the record of Appeal from lines 6; Why should 2nd Defendant take the 1st Defendant to A. T. Udechukwu to produce Exhibit E and then take the trouble of going to another typist to insert Para 7? Why should the ” Defendant not ask the typist in A.T Udechukwu’s office to insert para 7 at once? What is more, it is a most striking coincidence that the character of the typewriter in A. T Udechukwu’s Office would tally with the character of the type writer of the very first roadside typist they ran into on leaving Udechukwu’s office. This Court does not believe the story of DW1. Counsel opined that this section of the Judgment is reproduced because Appellants Counsel made heavy weather of the allegations of forgery of Exhibit E and its collaboration albeit erroneously by the DW1.
Counsel further submitted that taking holistic reading of the judgment of the Court below and its reasoning that Exhibit E was not forged, he urge this Court to confirm and affirm the said section of the Judgment and the Court’s reasoning thereto. Counsel argued that the submissions of learned Counsel to the Appellants at Pages 4-7 of his brief of Argument should therefore be discountenanced since Plaintiff cannot prove satisfactorily to the Court that the said documents were forged. Counsel cited the Supreme Court in ALH ISIYAKU YAKUBU vs. ALH USMAN JAUROYEL & ORS (2014) LPELR 22732 where the Court said; Standard of proof for commission of crime in civil cases as alleged herein is the same as criminal case. See FAMUROTI vs. AGBEKE (1991) 5 NWLR (PT. 189) 1 @ 13 where the Court held that where the Plaintiff alleged that the thumb impression on Exhibit A, the basis of the case was forged, same must be proved beyond reasonable doubt. Counsel argued that fraud requires a higher degree of probability in its proof and that it must be pleaded with particulars adequately supplied.
It was contended by Counsel that under Appeal the Appellant showed that no attempt was made by the Plaintiff to specifically lead evidence and stand by same to prove the alleged crime of forgery, an averment that should be the live wire of their pleadings. He drew attention to page 28 of the Judgment and 242 of the records of appeal, where the Court below has this to say;
In Exhibit B original Plaintiff has this to say in Evidence regarding Exhibit E; the signature in Exhibit E was forged. It is not my signature. When I confronted my son why he did this, he told me the 2nd Defendant did all the forgeries….under X-examination the same original Plaintiff said… I do not know who signed my signature in Exhibit D. I do not remember when I said that it was my son who forged my signature. 1st Defendant will come and tell the Court who signed Exhibit D. 1st Defendant signed my signature in Exhibit D according to my statement of claim…”
Counsel for reasons of emphasis drew attention to the fact that Exhibit E was Exhibit D before late Justice Edozie, where original Plaintiff testified and that at best the evidence of the original Plaintiff in prevaricating front and back shows the inconsistency of the witness. He said that no reasonable Court will believe such evidence. Counsel therefore submitted that the 1st limb of issue No. 1 has failed because the Plaintiffs failed to prove to the Court that as at 1991 when this suit was instituted he was still the owner of No. 8 Oraifite Street. He said that either from evidence led or pleadings the
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Plaintiffs have failed to prove their case on the preponderance of evidence and that ownership of the said property squarely rested on the 3rd Respondent as at the 20th September, 1990 while this suit was filed at the Court below on 6th June, 1991, nine clear months and 11 days after ownership shifted to the 3rd Respondent. Counsel urged this Court to so hold.
ISSUE TWO;
Whether Late Gabriel Adimora made Exhibit E or not and whether Exhibit F was made with his Consent and Authority.
In arguing this issue, Counsel first drew attention of this Court to the fact that Exhibit E in the instant case is the Irrevocable power of Attorney donated to Geoffrey Adimora by his late father Gabriel N. Adimora, while Exhibit F is another irrevocable power of Attorney Geoffrey Adimora donated to Mr. B.B.C. Ezeala. He said that both documents are Deeds under seal and duly registered with the land Registry at Enugu. Counsel further drew attention to the Contention of the Appellants, which is that Exhibit E was forged while Exhibit F was not made with the authority and consent of Gabriel Adimora, the original Plaintiff; that the 1st Defendant/Respondent who himself is the Donee of the said power also admitted that indeed he participated in the forgery of Exhibit E.
Counsel also drew attention to the contention of the Appellant when he said that para 7 of Exhibit E was inserted and that A.T Udechukwu Esq. did not sign the document prepared but merely stamped it; that the said Irrevocable Power of Attorney cannot pass for a power of Attorney because they were not given for valuable consideration and that Exhibit E on the face of it was not executed or authenticated before a Notary Public; that despite its Registration, it does not cure any defect in the document and will not clothe it with the validity, which it does not ab-initio posses. Arising from the foregoing, Counsel posed what he called the fundamental question, which is whether the Court below addressed these issues raised by the Appellants as Plaintiffs in its Judgment?
Counsel said that he has had course, while addressing the issues raised to show that the Plaintiff did not discharge the burden placed on him in issue No.1. He stated that the trial Court in even trying to do the case of the Plaintiff for him went the extra mile to examine the evidence of the initial Plaintiff in his testimony before late Justice Edozie. Counsel referred Court to page 242 of the records of Appeal. He further drew attention to the reasoning of the Court below at page 29-31 in its Judgment, and 243-245 of records of Appeal on why the original Plaintiff could not prove forgery of his Signature. Counsel also drew attention to the Courts reasoning on why Exhibit E Cannot be forged at Page 30 of the Judgment and 244 of the records at the last paragraph.
On the contention of the Appellants that para 7 was inserted into Exhibit E, the question Counsel posed is what is in para 7? In his Answer, he said; That this Power of Attorney is irrevocable. Counsel wondered why Appellants did not complain of para 3 which gave Donee the very power that made him alienate the said No. 8 Oraifite Street ogui Enugu. According to Counsel, this line of argument of the Appellant is loose and laughable. He said that the Court below diligently investigated this position and even took time off by the leverage afforded him under S. 108 (1) of the Evidence Act to compare the signatures in Exhibits D & E and found them to be the same. Counsel urged this Court to make the same comparison.
On whether the said irrevocable power of Attorney can pass as such having not been given for valuable consideration nor notarized before Notary Public, he said that Court below extensively addressed the issue. He referred to pages 37-38 of the judgment and 252-253 of the record and urged this Court to
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hold in line with the Judgment and reasoning of the trial High Court.
ISSUE THREE:
Whether Exhibit F was validly made and whether Exhibit O flowing from it qualifies as conferring title or ownership of the property in dispute on the 2nd Defendant/Respondent either as a mortgage or a pledge?
In tackling this poser, Counsel submitted that recourse must be had to Ground four of Appellants Notice and Ground of Appeal at page 263 of the Records when he said that; the learned trial judge erred in law when he failed to consider the legal validity of Exhibits F and O upon which the 2nd Defendant based his title. Counsel reminded Court that Exhibit F is the Deed of Irrevocable power of Attorney issued to the 2nd Respondent by the 1st Defendant upon giving of a friendly loan without interest, which was secured with Exhibit O. The question Counsel asked here is; what confers validity on a document? He answered that a document that was duly executed by those supposed to execute same ordinarily should be a valid document. Counsel cited the case of SUNDAY OYEBADEJO vs. RAMONI OLANIYI & ORS. (2000) LPELR-6926 (CA).
It was the contention of Counsel that the father of 1st Defendant, who himself was the original Plaintiff knew about Exhibit F and also knew it was used by the 2nd Respondent to source for a loan with the First Bank, to offset money he advanced to his son. Counsel said that the original Plaintiff visited the 2nd Respondent with whom his son was doing business and these facts were relayed to him and that he showed no surprises; that He even offered to settle the bank loan through the 2nd Respondent by installments which the 2nd Respondent rejected. He referred Court to the reasoning of the Court below at Page 34 of its Judgment and 249 of the Records of Appeal and said that the reasoning is both in tandem with law and common sense. Counsel noted that Exhibit F flew from Exhibit E which the Court below has adjudged to be genuine and valid. He urged this Court to hold in this line.
Counsel referred Court to the Action Law of Enugu State Section 8(1), to which the Appellants referred to the effect that no person is allowed to derive any benefit from his own criminal act. By this postulation Counsel said that it implies that the 1st Respondent admitted to having forged Exhibit E, from which Exhibit F derived its validity. It was the submission of Counsel that the Court below was also mindful of that act and intent of 1st Respondent to reap from his criminal Act and that the Court tactically warded him off when it said at pages 33 and 34 of its judgment and 249 of the Record of Appeal, from which the impression is given that the Court below knew the antics of the 1st Respondent when he clothed himself with having forged Exhibit E; that the Court knew what he was targeting to set up the case against himself such that the Defendant in the event of losing the case, No. 8 Oraifite street reverts back to the original Plaintiff for, which he is the head beneficiary.
On the letters of Exhibit O, Counsel said that they are succinct, direct and unambiguous and that it is uncertain what Counsel for the Appellant intended to achieve by inputting what does not contain in the written document. Counsel cited the case of SUNDAY OYEBADEJO vs. RAMONI OLANIYI & ORS. (Supra) earlier cited and submitted that Exhibit O was a security for a friendly loan which states the condition for the loan and what will happen in the event of default after two years. He said that these conditions were further secured by Exhibit F and that all documents are to the knowledge of both the original Plaintiff, 1st and 2nd Defendants because 2nd Defendant/Respondent knowing he cannot perform any act on the property with Exhibit O, also caused the 1st Respondent to execute Exhibit F same day. Counsel submitted that on the strength of Exhibit F, 2nd Respondent secured a loan from the bank and that when Exhibit F was released to him, the 2nd Respondent relying on its terms and conditions especially clause 3 in Exhibit F, sold the house at No. 8 Oraifite Street to the
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3rd Respondent and executed Exhibit J in his favour. Counsel drew attention to page 40 of the Judgment and 255 of the records and said after its detailed analysis on the preceding pages
On the whole, this Court finds that Exhibit E was not forged and that Exhibit F was validly issued.
Counsel urged this Court to affirm same and hold so.
ISSUE FOUR;
Whether the Court below was right when it held that the 3rd Defendant/Respondent was a bonafide purchaser for value without Notice and that the Defense of laches and acquiescence will avail the 3rd Defendant/Respondent?
This Court is informed by learned Counsel that the hallmark of the judgment of the Court below was that the 3rd Defendant validly purchased the property by virtue of Exhibit J with effect from the 20-9-1990 and therefore entitled to the right of occupancy thereof; that the 3rd Defendant is entitled to account for the said rent collected from the property from the 20-9-1990 to date and that holding back the property from the 3rd Defendant from the 20-9-1990 by the Plaintiff amounts to trespass; that Court further gave an order of injunction and awarded damages. The contention of Counsel is that Appellants made a heavy weather of Exhibits L and L1, which are newspaper publication done in 1988 and contended that a prospective buyer should thoroughly investigate and diligently conduct a search at the land registry in respect of the landed property. Counsel, however, conceded and submitted that the 3rd Respondent conducted a search at land Registry and convinced himself that the title flow of the property was genuine and rests on the person he was buying from.
Counsel argued that the Land Registrar of Deeds even testified in Court as to how he visited the property before purchase and saw the condition and that he also visited after purchase during the hand-over of tenants from the former landlord who is the 2nd Defendant to himself. He said that it was only when the 3rd Respondent wanted to eject all tenants vide notices to quit so that he can renovate his house that the Original Plaintiff brought this action. Counsel also argued that Exhibits L & L1 are notices to the whole world for which the 3rd Defendant should have taken note; but the question he posed is; Did the Court below take cognizance of this Exhibits L & L1 before arriving at its Judgment in which it gave judgment to the 3rd Defendant? Counsel referred Court page 43 of the Court’s judgment and Page 258 of the Record on the question of whether the 3rd Defendant was indeed a bonafide purchaser for value without Notice and page 40 of the judgment and pages 255-258 of the records of Appeal. Counsel urged this Court to affirm and hold in line with the lower Court’s decision in this regard.
RESOLUTION OF APPEAL;
The original Plaintiff in this suit, late Gabriel Adimora is the owner in possession and the landlord of the property known and called No. 8 Oraifite Street Ogui New Layout, Enugu. The original Plaintiff became the owner of the said property vide an agreement dated 2-1-1963 and registered at Enugu Land Registry as 66/66/332, Exhibit C (page 276 – 280 of the record).
Sometime in 1988, the original Plaintiff was said to have discovered that some persons were interfering or tempering with his said property secretly. He caused a caveat to be published in the National Daily Star Newspaper of 1-11-1988; Exhibits L and L1 (pages 305 – 319 of the record) warning trespassers to desist forthwith. On further inquiry, the original Plaintiff discovered that a Power of Attorney purportedly made in favour of the 1st
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Respondent by him; Exhibit E (pages 283-285 of the record) was registered at the land Registry Enugu. The original Plaintiff denied signing or making Exhibit E and insisted that it was forged by the 1st Respondent and the 2nd Defendant at the trial Court. The 1st Respondent admitted in his evidence and pleadings that it was the 2nd Defendant at the trial that forged the original Plaintiff’s signature in Exhibit E.
Apart from Exhibit E, the original Plaintiff also discovered that there was another power of Attorney dated 3-6-1975 (Exhibit F) from the 1st Respondent to the 2nd Defendant at the trial, which was issued without his consent and authority; and a Deed of mortgage dated 7-8-1976; Exhibit G between the 2nd Defendant at the trial and the then Standard Bank now First Bank of Nigeria Plc, a Deed of Release of 917/90, Exhibit H and a Deed of Assignment dated 20-9-1990 between the 2nd Defendant at the trial and the 3rd Respondent, Exhibit J. (pages 286 – 302 of the record).
Although laced in a maze of forgery allegations and falsified Exhibits, accusations and counter accusations by the parties, what appears to be the issue at stake between the parties is how the Court below would be able to decipher the truth in a dispute clearly enmeshed in a declaration of title to a landed property in the midst of allegations also of complicity on the part of the Appellants themselves in the saga of forgery and falsified Exhibits. The first relief in the Statement of Claim of the Appellants as Plaintiffs is a claim for a declaration of title to the premises in dispute. The well established five (5) methods by which ownership of land may be established were laid down by the Supreme Court in the case of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227.
It was however held in the case of ABEL NKADO & ORS vs. OZULIKE OBIANO & ANOR (1997) 5 SCNJ 33 that the onus on the Plaintiff is discharged if he establishes any one of the five (5) methods. From the evidence led by the parties to this case at the lower Court, it is clear that they both relied upon the second method, which the production of authenticated documents is all about. It is also settled that in a claim for declaration of title to land, the Plaintiff has the duty of proving his case upon his own evidence and cannot rely on the weakness of the Defendant’s case. See the cases of DIKE vs. OKOLOEDO (1999) 10 NWLR (PT. 623) 359 AT 364; MOGAJI vs. CADBURY (NIG.) LTD (1985) 2 NWLR (PT. 7) 282. A Party is however, entitled to take advantage of any evidence adduced by his opponent by which he intends to establish his title and support his case. See AKINOLA vs. OLUWO & ORS (1962) 1 ALL NLR 224 at 225.
These however, are clear and straightforward issues of law for which this Court has no cause to disagree. I have however had course to take a very careful and calm look at the Appellants issue one dealing with the issue of proof of title and the counter claims of the 2nd Defendant. The question that should perhaps, be addressed here is whether the original Plaintiff and indeed the Appellants as Plaintiffs before the Court below succeeded in establishing their case before that Court and if not why? At page 242 lines 26- 33 and page 243 lines 1-5 this was what the Court below said of the Appellants evidence before that Court;
It is to be immediately noted how the original Plaintiff prevaricated on this very important issue upon which his whole case was based. In paragraph 10(b) of his statement of claim he was emphatic and unequivocal that the 1st Defendant forged his signature in Exhibit E with the knowledge of the 2nd Defendant. In evidence, rather than amplify this allegation by giving details of the alleged forgery, the original Plaintiff in one breath stated (that) 1st Defendant told him; that 2nd Defendant did all the forgeries, and in another breath he stated that he did not know who signed his signature on Exhibit E. He was rather evasive to say the least.
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It is important to note that apart from the foregoing, the Court below made far reaching findings in the matter which the Appellants did not bother to challenge or appeal against. For instance, the Court at page 243 line 6 found that the evidence of the original Plaintiff were in conflict with his averment on the issue of forgery. In the case of ABUBAKAR vs. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS (2007) LPELR- 55 (SC), the apex Court per OGBUAGU, JSC had this to say on the subject;
It is settled that a party is estopped by his failure to Appeal against an adverse finding of a fact relevant to the issue.”
See the cases of EJOWHOMU vs. EDOK-ETER LTD (1986) NWLR (PT. 39) 1; UNDERWATER ENGINEERING CO. LTD vs. DUBEFON (1995) 6 SCNJ 56.
However, the position of the Court below, on the question of the original Plaintiff’s conflicting evidence with the averments in his pleadings on the issue of forgery, and which this Court finds difficult to fault is that such evidence, of course goes to no issue. See the case of ADEMESO vs. OKORO (2005) 14 NWLR (PT. 945) 308, where the Supreme Court per KATSINA-ALU, JSC had this to say on the subject;
It is also settled law that any evidence which is at variance with the averment of the pleadings goes to no issue and should be disregarded by the Court.
Apart from this, the settled principle of law is that where the evidence of a party is at variance with the averment in his pleading on a material point, the claim would fail and stand dismissed. The reason for this is that parties are bound by their pleadings and that evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court.
There are legions of decided cases on this issue.
The Court below also made another finding of fact at page 244 of the printed records of Court at lines 1 -3 where the Court noted that on the allegation that the 1st Defendant forged Exhibit E, with the knowledge of the 2nd Defendant that no positive evidence was given by the Plaintiffs. What this portends for the Appellants as Plaintiffs is that they cannot establish their claim to ownership of No. 8 Oraitife Street with inconsistent pieces of evidence. The implication is that they failed to establish or prove that as at 1991 when the suit at the Court below was instituted, they were still owners of the place or not. Having carefully read the Judgment of the Court below, I cannot either from the quality of evidence led or from the pleadings agree that the Appellants as Plaintiffs proved their case on a preponderance of evidence as expected.
On the question of whether Exhibit F was validly made and whether Exhibit O flowing from it qualifies as a title document conferring title or ownership of the property in dispute on the 2nd Defendant at the trial Court either as a Mortgage or a Pledge, the observation of the Court below at page 248 lines 30-35 and page 249 lines 1-6 of the printed records is perhaps, instructive in this regard. The Court below had this to say;
At a stage, the original plaintiff went with his son, 1st Defendant to see the person whom his son was doing business with. That person was the 2nd Defendant.
Both DW1 and DW2 testified to this visit. On that visit he, the original Plaintiff, showed no surprise that the 1st Defendant had granted Exhibit F to the 2nd Defendant and that the 2nd Defendant had secured a loan from a Bank on the strength of Exhibit F given to him. The behavior of the original Plaintiff was in consonance with that of a person who had aided the son to start business, but was worried, perhaps, that progress was not being made by his son and sought to intervene one way or another.
It is important to emphasize at this stage that the entire issues nominated by the Appellant for the determination of this Appeal are issues which deal mainly with the question of evaluation of evidence at the Court below and the credibility of witnesses. This being an Appellate Court, it is not its
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function to make findings of fact where this has been properly done as in the instant case by the trial Court. The Appellate Court is not permitted to do so even if it would have come to a different finding if it were to do so. See the cases of OLANREWAJU vs. GOV. OF OYO STATE (1992) 11/12 SCNJ 92; OKUNZUA vs. AMOSU (1992) NWLR (PT. 248) 416; OZIBE vs. AIGBE(1977) 7 SC 1 AT 11.
Perhaps, the point has to be made as clearly as possible at this stage, that the Brief of Counsel at the stage of Appeal cannot take the place of evidence on record no matter how brilliantly rendered. It is important to note that where the Court below has properly evaluated all the facts and documentary exhibits placed before it, there is always very little that the Appellate Court can do. See ISHOLA vs. AJIBOYE (1998) NWLR (PT. 532) 71; ONAH vs. OKOM (2012) 8 NWLR (PT.1301) 169 AT 193.
This Appeal therefore fails and it is accordingly dismissed. The Judgment of the High Court of Enugu State sitting at the Enugu Judicial Division and delivered on the 25-7-2005 is hereby affirmed. Cost of N50,000.00 is awarded against the Appellants in favour of the Respondents.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in draft the lead judgment of my learned brother, FREDRICK O. OHO, JCA, and I agree with his reasoning for the conclusion that the appeal lacks merit and should be dismissed.
I also dismiss it and subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, FREDRICK O. OHO, JCA and I agree entirely with the reasoning contained therein and the conclusion arrived thereat in dismissing the appeal. I also affirm the decision of the lower Court and abide the consequential orders.
Appearances
G. A. Ekoh Esq. For Appellant
AND
Awforkansi Nnadiume Esq. For Respondent