Elder Effanga Okon Bassey Asuquo V. Dr. Archibong Okon Bassey Asuquo (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED OWOADE, J.C.A.

This is an appeal against the judgment of Okoi Ham, J. delivered in the Calabar Judicial Division of the Cross River State High Court on 3rd April, 2007.

By a Writ of Summons dated 9/10/2001, the Respondent as Plaintiff claimed against the Defendant/Appellant as follows:

1. A Declaration that the Plaintiff is the owner of that piece or parcel of land together with the buildings situate and lying and being at 46, Ekondo Street, Calabar, Cross River State.
2. A declaration that the Defendant’s interest in the said parcel or piece of land situate and lying and being at 46 Ekondo Street, Calabar, Cross River State has extinguished by virtue of Deed of Gift dated the 27th day of October, 1976 between Effanga Bassey Asuquo (the defendant) and Doctor Archibong Okon Bassey (Plaintiff).
3. A declaration that the occupation by the Defendant of the Plaintiff’s said building at 46 Ekondo Street, Calabar, without the consent of the Plaintiff is wrongful and illegal.
4. An order of Mandatory Injunction compelling the Defendant to vacate and quit the said building of the Plaintiff at 46 Ekondo street, Calabar, within seventy-two hours of the delivery of judgment in this case.
5. An order of perpetual injunction restraining the Defendant his agents, descendants, servants and or privies from committing further acts of trespass concerning the said land and building situate and lying and being at 46 Ekondo Street, Calabar.
6. General Damages of N2 million only.

At the trial, the final pleadings filed by the parties were the Further Amended Statement of claim dated 9th February 2005 and filed on 10th February, 2005 (at pages 45 to 47 of the Record); the Further Amended Statement of Defence and counter Claim dated 15th May 2006 and filed 22nd May, 2006 (at pages 59 to 67 of the Record); and the Further Amended Reply and Defence to counter claim dated 9th February 2005 and filed on 10th February 2005 (at pages 48 to 49 of the Record).

As against the Plaintiff/Respondent, the Defendant/Appellant Counter claimed as follows.

(a) A declaration that the property situates and lying at No. 46 Ekondo Street, Calabar including the land thereto is the bonafide property of Effanga Okon Bassey Asuquo.

(b) A declaration that the document registered as No. 65 at page 65 in volume 114 is not a document executed by Effanga Okon Bassey Asuquo, the Defendant.

(c) A declaration canceling the purported gift registered as No. 65 at page 65 in volume 114 and expunging, the document from the Lands Registry registered as No. 65 page 65 in volume 114 in the, Lands Registry, Calabar.

(d) A declaration that the property at No. 46 Ekondo Street, Calabar does not belong to the Plaintiff in this case.

(e) A perpetual injunction to restrain the Plaintiff, the children, his descendants, agent workmen, executors, administrators from laying claim to and/or trespassing on the property at No. 46 Ekondo Street, Calabar.

The facts of the case are as follows. The Appellant and the Respondent are brothers of the same parents, and the land in dispute is a portion of a larger parcel of land at No. 46 Ekondo Street, Calabar which belonged originally to Mr. Okon Bassey Asuquo, now deceased, who was the father of both parties.

The Respondent’s case was that in 1975, when he wanted to build his residential house, their father showed him a portion of his compound at No. 46 Ekondo Street, Calabar to build the house and the respondent commenced the project on the land but stopped midway when he ran out of funds.

In 1976, the Appellant who was then based in Lagos came home and told their father that he had a major contract and needed collateral to secure a bank loan to execute the contract. He persuaded their father to execute a Deed of Gift (Exhibit 2) vesting his entire compound at No. 46 Ekondo street, Calabar on the appellant so that he can use the property as the collateral for his loan.

When the Respondent become aware of their father’s conveyance of the entire compound to the Appellant, the respondent protested against the conveyance because it affected the Respondent’s uncompleted building in that compound. So their father directed, the Respondent to survey the portion of the compound where his uncompleted building was located and after the survey he made the Appellant to execute a Deed of Gift (Exhibit 1) transferring that particular portion back to the Respondent.

The Respondent registered the Deed of Gift immediately at the Lands Registry in 1976 and on the strength of that deed he mortgaged the land and his uncompleted building to secure a loan from the Federal Mortgage Bank to complete the building. The Respondent claimed that he moved their parents from the mud house where they were living into the building and they lived there until their father died in 1991 and their mother in 1999. That he locked up the building after their mother’s death in 1999 but the Appellant broke into the building in 2001 and took up residence there without the Respondent’s consent. While in residence, he (the Appellant) stored petrol in one of the rooms in the building and lit a candle in the same room, setting the building on fire. The timely intervention of the Fire Service however saved the property from total destruction though it was seriously damaged.

The Appellant on the other hand said the house in dispute belongs to him. He anchored his defence on the fact that their father gave him the entire compound via Exhibit 2 in 1976 including the uncompleted building. He denied signing Exhibit 1. And said the building (the subject mater of the dispute) was the collective effort of himself, his brothers and sisters for their father.

The trial Court found for the Plaintiff/Respondent and awarded N450, 000 as general damages. The Court also dismissed the Defendant’s/ Appellant’s Counter-claim with N15, 000 costs against the Defendant/Appellant.

Dissatisfied with this judgment the Defendant/Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this Court on 6/6/2007. And by leave of Court filed an Amended Notice and Grounds of Appeal dated 10/1/2008 on 14/1/2008. By this, Appellant’s grounds of appeal totalled six (6) instead of the previous four (4) grounds of appeal.

The Appellant’s brief of argument dated 6/6/08 was deemed filed on 25/9/08. The Respondent’s brief of argument was dated and filed on 22/10/08. Appellant’s Reply brief dated 5/11/08 was filed on 6/11/08.

The five issues formulated by the Appellant were adopted by the Respondents. The issues are:

1. Whether the Learned trial Judge was right in holding that the Appellant signed Exhibit 1.
2. Whether it was right for the learned trial Judge to hold that the Respondent alone built the house in dispute with no contribution from the Appellant.
3. Whether having regards to the state of pleadings and evidence led at the trial, the Respondent’s claim should not have been dismissed and judgment entered for the appellant in his counter claim.
4. Whether having regard to the nature of exhibit 6 the learned trial Judge was right in failing to expunge it from the records as a document made during the pendency of this proceedings and whether the reliance placed on it by the trial Court to make the award of general damages did not occasion a miscarriage of justice.
5. Whether there was proper evaluation of evidence in this case by the learned trial Judge.

In this appeal, I will consider issues Nos. 1, 2, and 4 separately and thereafter consider issues Nos. 3 and 5 together in that sequence.

Before, then, however, the Respondent by way of preliminary objection submitted that the Appellant, to the best of his knowledge has not filed an Amended Notice and Grounds of appeal in this mater after he was granted leave to do so and that the Respondent has not been served with any such Amended Notice and Grounds of Appeal. In effect, the subsisting Notice and Grounds of Appeal is the one of 6th July 2007 containing four grounds of appeal. Further, that a close examination of the grounds of appeal and the issues formulated by the appellant for determination clearly indicated that his issues Nos. 3 and 4 do not arise from any of the four grounds of appeal in his subsisting Notice and Grounds of Appeal of 6th June, 2007.

Relying on the case of Nya v. Edem 2005 ALL FWLR (Pt.242) 576, Respondent’s counsel urged this Court to discountenance the Appellant’s arguments on those two issues as they do not arise from his grounds of appeal and are therefore incompetent in law.

Reacting to the Respondent’s preliminary objection, the Appellant in his Reply brief submitted that the preliminary objection is unfounded because on 9/1/2008, when the motion to amend the Notice and Grounds of Appeal was granted, there was a deeming order and that grounds 3, 4 and 5 of the Amended Notice of Appeal cover issues 3 and 4 now complained of.

I agree with the learned counsel for the Appellant that the Respondent’s preliminary objection is not well founded but not exactly for the reasons proffered by the learned counsel for the Appellant.

On 9/1/2008, this Honourable Court granted leave to the Appellant as per the proposed Amended Notice and Grounds of Appeal Exhibit ‘A’ to amend the Notice and Grounds of Appeal and to file additional grounds of appeal. There was never a time from the record of proceedings that this Honourable Court granted the Appellant a deeming order in respect of the Amended Notice and Grounds of Appeal and/or in respect of the filing of additional grounds of appeal as imagined or suggested by the learned counsel for the Appellant.

Eventually, on 14/1/2008, an amended Notice and Grounds of Appeal containing additional grounds was filed in this Court. It is however correct, as submitted by the Appellant’s counsel that grounds 3, 4 and 5 cover issues 3 and 4 now complained of by the respondent.

For these reasons and in spite of my observations, the Respondent’s preliminary objection is overruled and accordingly dismissed.

On issue No. 1 learned counsel for the Appellant demonstrated that the core issue in this case is the denial of the Appellant as having donated the land and building in issue to the Respondent through the instrumentality of Exhibit 1. That the Appellant denied ever signing Exhibit 1 but admitted having signed Exhibit 2. That the Appellant indeed contended that the purported signature on Exhibit 1 which was alleged to be his by PW1 and PW 2 was in fact a forgery.

Learned counsel for the Appellant submitted that on the face of the Defendant’s/Appellant’s vehement denial of Exhibit 1, the duty is that of the Plaintiff/Respondent to prove by very cogent, legal and compelling evidence that the Defendant/Appellant signed Exhibit 1, that the Appellant’s signature on Exhibit 2 is similar in all material particulars with the disputed signature in Exhibit 1 and that the Appellant indeed made and donated Exhibit 1. Counsel relied on the cases of Alex O. Odudu v. Emmanuel O. Onyibe (2001) FWLR (Pt 79) 1403 at 1419, and Ndoma-Egba v. ACB Plc. (2005) 23 NSCOR 224 to say that where a person alleged that the signature on a particular document is not his and his opponent asserts otherwise, the onus of proof that the signature is his lies on the person alleging that it belongs to him.

Learned counsel for the Appellant reviewed the testimonies of the witnesses on Exhibit 1 and submitted that taking the testimonies of all the witnesses in this case into consideration, with a disputed signature on a document the trial Judge ought to be guided by the provisions of sections 57, 61, 100 and 108 of the Evidence Act, 1990. He submitted that this is a clear case where section 57 of the Evidence Act in relation to the opinion of an expert regarding the disputed signature ought to be relevant to clear all misgivings as to the authenticity of the signature in Exhibit 1 (which is disputed) when compared with the appellant’s admitted signature in Exhibit 2.

Appellant’s counsel submitted that the Respondent failed to prove due execution of Exhibit 1 and the learned trial Judge failed to subject the two signatures to the opinion of handwriting expert, but held on the authenticity of the Appellant’s signature on the evidence of P.W.1 and P.W.2.

Appellant’s counsel submitted that the learned trial Judge never undertook the comparison of the signatures in both Exhibits 1 and 2 as required by section 108 (1) of the Evidence Act and relying further on the cases of Ezechuchwu v. Onwuka (2006) 2 NWLR (Pt 963) 151, Akaloonu v. Omokaro (2003) FWLR (Pt. 175) 493 Daggash v. Bullama (2004) ALL FWLR (pt 212) 1666 and Ndoma Egba v. ACB Plc. (supra) he submitted that it is now settled that in resolving the issue of due execution of a document, where the alleged maker denied his signature, the course open to the Court would be to compare the signature admitted by the alleged signatory to be his own with the disputed one under section 108 (1) or to compare the disputed one with one made by the order of Court by virtue of section 108 (2) of the Evidence Act.

Learned counsel for the Appellant then made incisive forensic analysis not only of the differences between the signatures of the Appellant in Exhibits 1 and 2 but also of the differences in the signature of Maria Sam Asuquo – PW 2 in both Exhibit 1 based on the number of dots and the clarity of some letters.

He urged this Court to resolve issue No. 1 in favour of the Appellant.

On issue No.1, Respondent’s counsel submitted that the Respondent’s root of title to the property in dispute is Exhibit 1, which is a deed of Gift dated 27th October, 1976 and executed between the Appellant as the donor and the respondent as the donee. And relying on the case of Jumbo v. Murana 2001 FWLR (Pt. 33) 369, that it is trite law that where the Plaintiff in an action for a declaration of title relied on a deed as proof of his title to the property in dispute the Court must examine the instrument to ascertain;

(i) whether it is genuine and valid,

(ii) whether it is duly executed, stamped and registered,

(iii) whether the grantor had the authority to make the grant,

(iv) whether the grantor in fact had the land he purportedly granted and

(v) whether the instrument had the effect claimed by the Plaintiff.

In this case, said Respondent’s counsel, the parties are in agreement that the land in dispute originally belonged to their late father, Chief Okon Bassey Asuquo, who executed a Deed of Gift on 2nd September, 1976 transferring his entire land at No. 46 Ekondo Street, Calabar to the Appellant. That, it is that Deed of Gift (Exhibit 2) that gave the Appellant the legal authority to execute the second Deed of Gift (Exhibit 1) on 27th October, 1976 to transfer a portion of the land at No. 46 Ekondo Street, Calabar to the Respondent. Thereafter; said counsel, exhibit 1 was duly registered at the Lands Registry, Calabar on 29th October 1976 as No. 65 at page 65 in volume 114.

Respondent’s counsel submitted that in the circumstance, it was not in dispute in this case that;

(i) the grantor in Exhibit 1 had the authority to make the grant

(ii) that he was seized of the land granted.

(iii) that the deed of grant was duly stamped and registered and

(iv) that it had the effect of vesting the property in dispute on the Respondent.

The sole point in dispute concerning Exhibit 1, said Respondent’s counsel is the Appellant’s contention that the deed is not a genuine document duly executed by him because his signature on the document is a forgery.

Learned counsel to the Respondent submitted that having made this grievous allegation, the Appellant curiously contended that the burden of proof was on the Respondent to establish that Exhibit 1 was not forgery. Counsel submitted that the law is well served that he who alleged must prove (section 135 (2) Evidence Act), therefore the burden of proving the alleged forgery fell squarely on the Appellant and not on the Respondent.

Further, said Respondent’s counsel, the document allegedly forged (i.e. Exhibit 1) was made on 27th October, 1976, therefore, as at year 2001 when this dispute arose the document was more than twenty years old. And that by section 123 of the Evidence Act, there is a statutory presumption that the Appellant signed Exhibit 1 and the onus fell on the Appellant to rebut that legal presumption. Relying on the case of Bassey v. State 2003 FWLR (Pt. 164) 292 at page 310, respondent’s counsel submitted that in the absence of a cogent rebuttal the learned trial Judge was right to hold as he did that the signature in Exhibit 1 was that of the Respondent.

Respondent’s counsel submitted that in this case, the Appellant tried to establish serious criminal allegation like forgery by relying mostly on his bare denial and on alleged dissimilarities between his admitted signature in Exhibit 2 and the disputed signature in Exhibit 1. The Appellant, said Respondent’s counsel argued seriously that the two signatures are not the same because some lines are more distinct in one signature than in the other and there are a few dots in one signature that are absent in the other. But that in the case of Digai v. Nanchang 2005 ALL FWLR (Pt.240) 41 at 61, the Court of Appeal per Ogbuagu JCA in very similar circumstances held that;

“I wish to state with respect that no number of signatures of any person can ever be perfectly the same. They can be similar, but never perfectly identical. They are likely to be slight variations, but the signatures remain similar”

This irrefutable fact, said Respondent’s counsel is apparent even in this case where some slight variations can be seen in the signatures of the witnesses who signed both Exhibits 1 and 2. But that, notwithstanding those variations one of the witnesses who signed both documents admitted during her testimony as P.W.2 that they signed those signatures. The alleged variations in the number of dots and in the clarity of some letters would only have been material if the Appellant had provided several other specimens of his usual signature to show that such dots and letters of that particular size were ALWAYS present in ALL his signatures.

Counsel referred to the case of Amadi v. Orisakwe 2005 ALL FWLR (Pt.247) 1529 at 1539 and said that in the absence of several such specimens this Court cannot justifiably conclude from just one undisputed signature that there are always so many dots or letters of a particular size in ALL the appellant’s signatures as to make the absence of such dots or letter of that size a material dissimilarity in the disputed signature.

Respondent’s counsel further submitted that the Appellant’s denial of his signature on Exhibit 1 was further discredited by the general inconsistencies in his case. For instance, the Appellant gave the impression in paragraph 36 of his Further Amended Statement of Defence and counter claim that he was not aware of the existence of Exhibit 1 before this present suit. However, under cross-examination the Appellant totally contradicted his pleading when at page 88 of the Record, he said:

“Yes the property was given to the Plaintiff for the purpose of getting mortgage loan from building society … Yes, I was aware that the Plaintiff used that property for the loan. I was informed by my father … My father told me the Plaintiff will destroy the title documents, Exhibit 1, Plaintiff promised to destroy Exhibit 1…”

In effect, said Respondent’s counsel, the Appellant admitted, contrary to his pleading, that he knew of the existence of Exhibit 1 even while his father who died in 1991 was still alive, and that is more than ten years before the commencement of the suit. Respondent’s counsel said against the Appellant’s disjointed evidence and bare denials, the Respondent even went beyond the legal presumption in his favour to adduce further evidence to show that the Appellant signed Exhibit 1. The Respondent, he said, called the only surviving witness present at the execution of Exhibit 1 to testify as P.W. 2 that the Appellant signed Exhibit 1 in her presence. As a witness, said counsel, P.W.2’s evidence was particularly persuasive because she is a sister of the same father and mother to both parties. Also she had no claim or interest in the property in dispute and as such had nothing to gain from giving biased evidence for or against any of her brothers. And that contrary to the-suggestion of Appellant’s counsel the reliance amongst other things to find in favour of the Respondent on the due execution of Exhibit 1 on the evidence of P.W. 2 was in conformity with the provision of section 61 of the Evidence Act.

In effect, P.W. 2 who saw the appellant sign Exhibit 1 in her presence was competent to testify to that effect even if she had never seen the Appellant’s signature before. In this case, however, counsel added, it was in evidence that P.W. 2 was acquainted with the Appellant’s signature because she was one of the witnesses to the Appellant’s signature on Exhibit 2, which deed the Appellant admitted that he signed.

The main legal question that arises in the determination of Appellant’s Issue No. 1 is whether the learned trial Judge was justified in his conclusion that based on a comparison of the signature of the Appellant on the admitted exhibit 2 and the disputed Exhibit 1 that the Appellant indeed signed Exhibit 1.

At page 133 of the record, the learned trial Judge observed as follows:

“Thus apart from the contradicted (sic) uncontradicted testimony of P.W 2 to the effect that she and others personally witnessed the execution of Exhibits 1 and 2 by the defendant, I must also say that the signatures appear to be similar. In view of the opinion to which I had come as to the reliability of the witnesses, I do not believe the defendant’s testimony that the Plaintiff forged his signature on Exhibit 1. It is recalled that the defendant stated in his evidence that he had anticipated a future litigation which had now come to pass, I take it that he did sign the document but in anticipation of a future litigation. I think and find that the defendant saw and signed Exh. 1…”

It would be recalled that two things were in issue before the lower Court in relation to Exhibit 1. The dominant one which became the subject of the above finding by the learned Judge was whether the Appellant signature on Extlibit 2 was the same as his disputed signature on Exhibit 1. The less dominant one was whether the signature of the Appellant on Exhibit 1 was forged.

The issue of forgery remains less dominant because it was based on an allegation in the pleadings at the Defendant/appellant, of which no iota of proof was uttered by the Defendant/Appellant even when the position of the law is clear that he who asserts must prove. See section 135 (2) Evidence Act. The observations of the learned trial Judge at page 132 of the record on the comparison of Appellant’s signatures and his conclusion on page 133 that the Appellant signed Exhibit 1 contains at least two elements of proof as against the denial of the Defendant/Appellant of his signature on Exhibit 1.

The first is the acceptance of the evidence of the Plaintiff/Respondent that the Defendant/Appellant executed Exhibit 1 in the presence of their father, mother, sister and brothers. The second is the uncontradicted testimony of P.W. 2 to the effect that she and others personally witnessed the execution of Exhibits 1 and 2 by the Defendant.

From the above, the learned trial Judge was perfectly in order to have placed reliance on the evidence of P. W. 2 who witnessed to Exhibits 1 and 2 and saw the Appellant signed Exhibits 1 and 2.

In the circumstance of the case, the opinion of P.W.2 as to the handwriting/signature of the Appellant became a relevant fact under the provision of section 61 of the Evidence Act. The section reads:

61 (1) When the Court has to form an opinion as to the person by whom any document was written or signed the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was not written or signed by that person is a relevant fact.

(2) A person is said to be acquainted with the handwriting of another person when he has seen the person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him”

In the case of Amadi v. Orisakwe (2005) 4 M.J.S.C. 152 at 162 to 163, (2005) ALL F.W.L.R. (pt 247) 1529, the Supreme Court per Akintan J.S.C following the case of Adenle v. Olude (2002) 18 NWLR (Pt 799) 413, held that in resolving the issue of due execution of a document where the alleged maker denies his signature, the course or options available to the Court are:

(i) To receive evidence from the attesting Magistrate if there is such an attestation, and if it is still possible to call the Magistrate.

(ii) To hear evidence from a person familiar with the signature of the alleged signatory of who saw him write the signature.

(iii) To compare the signature admitted by the alleged signatory to be his own with the one under contention under section 108 (1) of the Evidence Act.

(iv) To direct the person to sign his signature for the purpose of enabling the Court to compare the signature alleged to have been written by him under section 108 (2) of the Evidence Act.

In the instant case, the learned trial Judge satisfied conditions (ii) and (iii) in the above guidelines by hearing and accepting the evidence of P.W. 2 who saw the Appellant signed his signature on exhibits 1 and 2 and also comparing the signatures in Exhibits 1 and 2 and coming to the conclusion that both signatures are similar.

The learned counsel for the Appellant dissipated a lot of energy on the fact that the opinion of an handwriting expert under section 57 of the Evidence Act was necessary to resolve the issue of the disputed signature in this case and also that the learned trial Judge could have ordered for specimen signatures of the Appellant by virtue of section 108 of the Evidence Act.

With respect to the learned counsel for the Appellants, both views are misconceived. Neither an handwriting expert or the ordering of specimen signatures were needed in this case where the Court had already admitted in evidence two documents Exhibits 2 and 1, the first containing the Appellant’s admitted signature, the second his disputed signature. And where, from the circumstances of the case P.W. 2 testified as having witnessed the Appellant signed both Exhibits 2 and 1. This was not a case where the determination of the Appellant’s disputed signature was held in a “vacuum” that is in the absence of oral evidence to contradict the denial of signature by the Appellant, therefore neither the calling of handwriting expert nor the ordering of specimen signatures was necessary from the facts and circumstance of the present case. The conclusion of the learned trial Judge in this case was adequately covered by the provisions of sections 61 and 108 (1) of the Evidence Act.”

Indeed, the invocation of the provision of section 108 (2) of the Evidence Act becomes necessary as a compliment to the provision of section 108 (1) only where the signature, writing, seal or finger impression sought to be proved as not been produced or proved for any other purpose.

Again, in suggesting as he did that handwriting expert should have been called to prove due execution of Exhibit 1 by the appellant in this case, the learned counsel for the Appellant truly misunderstood the nature of burden of proof in relation to Exhibit 1. Undisputedly, and as pointed out by the learned counsel to the Respondent, Exhibit 1 was made on 27th October 1976 and as the year 2001 when the dispute arose, the document was more than twenty years old. Section 123 of the Evidence Act, deals with the presumption of documents twenty years old as follows:

“where a document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be the handwriting of any particular person is in that person’s handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

Clearly, in the instant case, section 123 of the Evidence Act provides a statutory presumption that the Appellant signed Exhibit 1 and the onus fell squarely on the Appellant to rebut the legal presumption. Therefore, the responsibility to call handwriting expert or to impress on the court to order specimen signatures if any rests with the

Appellant in this case. In Samuel Agbonito v. Madam Irorore Aiwereoba & Anor (1988) 1 NWLR (Pt. 70) 325, Nnaemeka-Agu JSC said that the presumption wider section 123 was established for the sake of general convenience and is founded on the great difficulties and often impossibility of proving handwriting after a long lapse of time and on the presumption that the attesting witnesses if any are dead.

Indeed, where as in this case, there was no evidence by the Respondent to disprove the authenticity of the Appellant’s signature, the presumption is that the Appellant’s signature is genuine. See e.g. Bassey v. State 2003 FWLR (Pt. 164) 292 at 310.

For the above reasons, the learned trial Judge was right to have held that Exhibit 1 was signed by the Appellant. Issue No. 1 is resolved against the Appellant.

On issue NO.2 learned counsel for the Appellant submitted that there was no basis for the finding of the learned trial Judge that the Plaintiff/Respondent built the concrete building at No. 46 Ekondo Street, Calabar with no contribution from the Defendant/Appellant when in fact the Plaintiff tendered no site plan, building plan or building permit and did not tender any receipt of purchases made throughout the construction of the building Appellant’s counsel said infact there was nothing on record linking the Plaintiff with the construction of the building except the evidence of P.W. 2 who herself gave contradictory evidence during her testimony.

Appellant’s counsel submitted that there was contradiction between the evidence of the Plaintiff/Respondent and P.W.2. That the Respondent said he stopped the building for sometime when he ran short of funds but P.W.2 said the Respondent did not stop construction until he finished. Also that the Plaintiff/Respondent never pleaded as he asserted that he asked his father to draw the site plan and building plan in his (father’s) name. That, apart from the absence of evidence of how much the Respondent expended on the concrete building, he (the Plaintiff/Respondent) failed to tender the Deed of Legal Mortgage of 1st March 1977 by which he took a loan of N25,000.00 from the Federal Mortgage Bank although he tendered the Deed of Release as Exhibit 3. Appellant’s counsel added that in fact, under cross-examination the Plaintiff said “I was not aware of the date the house at Ekondo was completed” And concluded the review of the Plaintiff’s/Respondent’s evidence by saying that the Plaintiff (Respondent) has therefore not shown by any credible or convincing evidence that he built the property in dispute.

To the contrary, said Appellant’s counsel, the Defendant (Appellant) led evidence to show that their father wanted a concrete house built for him and so informed his children and requested them to contribute towards the erection of the building in 1975. And that the Defendant/Appellant single handedly completed the building which was at wall plate level in late 1977. Learned counsel for the Appellant further submitted that if the learned trial Judge had considered Exhibits, 14-14B, Exhibits 15 and 16 (which are the diaries of their late father for the years 1975 and 1976) and Exhibits 17 and 18 (site and building plans of the concrete building) he would have come to a different conclusion as to who of the parties built the concrete building at 46 Ekondo Street, Calabar.

In response to Issue No. 2, learned counsel for the Respondent first submitted that the issue is irrelevant because irrespective of who built the house in dispute once it is determined that the house and the land on which it is located, has been validly and properly conveyed to the Respondent by the Appellant, the property will become that of the Respondent even if the house was not built by him alone or at all. Counsel then submitted that the Respondent in this case led cogent evidence to prove that he built the house in dispute. In particular, that the Respondent testified that he used to send money for the building to his father who oversaw the project for him since he was based in Lagos at that time. Also, that when he ran out of funds he used his title deed, Exhibit 1, to obtain a loan of N25, 000 from the Federal Mortgage Bank which he used to complete the building. When he repaid the loan, the mortgage over the property was discharged vide a Deed of Release which he tendered in evidence as Exhibit 3.

Learned counsel to the Respondent pointed out lacunae in the Appellant’s version that the house was started by their father and built with contributions from all his children up to lintel level. That at that level the building was donated to him (the Appellant) by their father and that he (Appellant) then completed it without further contribution from his siblings. First, said Respondent’s counsel, it was in evidence that their father had four children, one of which is now dead, leaving only the Appellant, the Respondent and P.W.2. If P.W.2 had contributed to the building as alleged by the Appellant she would certainly have corroborate the Appellant’s evidence that the building was a collective effort. But in her testimony P.W.2 denied contributing towards building and rather corroborated the Respondent’s testimony that he built the house alone. Secondly, said Respondent’s counsel, the Appellant claimed that after the building was donated to him in September 1976 he completed it on its own without further contribution from his siblings. But in paragraph 15 of his Further Amended Statement of defence and Counter-Claim he had averred that the Plaintiff (now Appellant) had sent a contribution of N100 towards the building in august 1977. When the Appellant was confronted during cross-examination with this discrepancy the Appellant denied his pleading. (Page 87 of the Records). Thirdly, said Respondent’s counsel, the Appellant had in a letter by his solicitor before litigation ensued (Exhibit 5) claimed that the building in dispute was a family house not his personal property. But when litigation ensued he did an about turn and claimed the building as his own.

All these discrepancies, said Respondent’s counsel made the learned trial Judge to observe at pages 131 – 132 that the Appellant “exhibited no hesitation in contradicting the contents of his own solicitor’s letter or his own pleading. Try as I can, I am unable to find him a truthful or reliable witness”.

Learned counsel to the Respondent submitted further that the Appellant’s argument that the respondent does not have a survey plan of the portion of No. 46 Ekondo Street which was given to him is totally incorrect because that survey plan is attached to the Respondent’s Deed Gift, Exhibit 1. That the appellant’s argument that the Respondent did not build the house in dispute because the building plans and permit were not in his name is equally untenable. Because, under cross-examination the Respondent had explained that he made his building plan in his father’s name as the land at No. 46 Ekondo Street, Calabar was at that time held in his father’s name. Also, that the Appellant’s argument that it was fatal for the Respondent not to tender the deed of mortgage by which he raised the loan to complete the house is equally not tenable.

Counsel said, that deed of mortgage was discharged and cancelled and the Respondent did not have it any more to tender in evidence but he did have, and he tendered, the Deed of Release (Exhibit 3) which shows that there was such a mortgage which had been paid off and discharged.

Relying on the case of Omega Sank V. O.B.C Ltd 2005 FWLR (Pt.249) 1964 at 1993 per Tobi JSC, counsel for the Respondent reasoned that the learned trial Judge could not have ascribed any probative value to Exhibits 15 and 16 the diaries of their father for 1975 and 1976 as those diaries were not signed and as such there was no basis that their father signed the diaries.

In deciding issue NO.2 I do agree with the learned counsel for the respondent that the issue is indeed irrelevant having regard to my conclusion on Issue No. 1 that Exhibit 1 was signed and executed by the Appellant and thereby conveyed the land and the house in dispute to the Respondent. Secondly, I also agree with the conclusion of the learned trial Judge at page 134 of the Record as regards the concrete building that:

“The defendant’s evidence is that the building is the collective effort of the family including P.W.2, who denied same. I believe the evidence of the Plaintiff and P.W. 2 which is supported by Exh. 3. I completely disbelieve the evidence of the defendant on this issue, and entirely reject it for falsity.

In the event, I find and hold that the said concrete building was built only by the Plaintiff with only his own resources, and that the defendant contributed nothing whatsoever to the building”

This finding by the learned trial Judge cannot be faulted. First, the evidence of the Plaintiff/Respondent on the subject matter was easily corroborated by Exhibit 3, the Respondent’s Deed of Release. Second, and perhaps more important, the denial by the Respondent and P.W. 2 of the Appellant’s story of family contribution rendered the Appellant’s evidence and claim to the concrete building to be totally unfounded.

In other words, the Appellant shot himself by the leg from the story of family contribution when the only two living family witnesses that would have confirmed the story denied same and claimed that the concrete building was single handedly built by the Respondent. Issue NO.2 is also resolved against the Appellant.

Now, to Issue No. 4 Appellant’s counsel noted that Exhibit 6 was a report from the Fire Service dated 28th January, 2002. This case was initiated on the 9th of October, 2001 and submitted that Exhibit 6 was admitted and acted upon by the learned trial Judge against the provision of section 91(3) of the Evidence Act. That being so, the learned trial Judge ought to have expunged Exhibit 6 from the records. For, according to Appellant’s counsel, where during the course of trial inadmissible evidence is admitted by the trial Court, it ought to be expunged when writing judgment. And where the trial Judge fails to do so, and Appellate Court is bound to exchange it on appeal. Reliance was placed on the cases of Jacob v. A-G of Akwa Ibom State (2000) F.W.L.R. (Pt. 86) 578, Ojengbede v. Esan (2002) F.W.L.R. (Pt. 90) 1406 and Aboyeji v. Momo (1994) 4 SCMJ 302.

Appellant’s counsel further stated that Exhibit 6 was not made by the P.W. 1 who tendered it. This, he said offended S. 91 (1) of the Evidence Act – a document sought to be tendered in evidence must be tendered by the maker. Reliance was placed on the cases of Oloruntoki V. Johnson (1990) 6 NWLR (Pt 158) 600 ODDS LTD v. Akatugba (2001) FWLR (Pt 76) 709 and JALLCO Ltd. V. Owoniboys (1995) SCNJ 256.

In response, learned counsel to the respondent said that when the respondent sought to tender Exhibit 6 at the trial Court, it is on record that the Appellant did not object to the admissibility of the document and as such the document was admitted at the trial without any objection whatsoever. Respondent’s counsel then submitted that the Appellant objection to the admissibility of Exhibit 6 in this appeal is a fresh issue which the Appellant cannot raise or be heard to argue without first seeking and obtaining leave from this Court. Relying on the case of Ekpuk v. Okon 2002 FWLR (Pt. 84) 145 at 161, Respondent’s counsel added that even where an Appellant had been granted leave to file amended grounds of appeal, as in this case such is not enough for him to raise a fresh issue on appeal unless he had specifically sought and obtained leave to do so. Without prejudice to the submission on the requirement of leave to raise a fresh issue on appeal, learned counsel for the Respondents submitted further that Exhibit 6 is not a document within the contemplation of section 91 (3) of the Evidence Act. Because, section 91 (3) of the Evidence Act only prohibits the admission of a document made during the pendency of a suit by a person interested in the suit. Relying on the cases of Anyaebosi v. R.T Briscoe (Nig) Ltd (1987) 3 NWLR (Pt 59) 84 at 88, Mohammed v. Kayode (1997) 11 NWLR (Pt 530) 384 and Nigerian Bottling Company Ltd V. Chief Uzoma Ubani (unreported judgment delivered by Court of Appeal, Calabar Division in Appeal No CA/C/19/2006 on 7th July 2008) Respondent’s counsel said that Exhibit 6 is a certified true copy of a report on a fire incident prepared by the state Fire Service, and though made during the pendency of the suit, it was nevertheless admissible because it was made by a person who has no interest whatsoever in the suit.

Learned counsel for the Respondent submitted further that the admission of Exhibit 6 in evidence did not occasion any miscarriage of justice because the document was lawfully admitted. Moreover, the lower Court had determined that the Appellant was in an unlawful possession of the Respondent’s building therefore the Respondent was on that basis alone entitled to the general damages awarded by the lower Court because trespass is actionable per se and general damages can in such cases be awarded even where no actual loss or injury has been proved.

He relied on the case of Ganiyu v. Onibonoje 2003 FWLR (Pt 146) 1009 at 1024.

Counsel added that the amount of general damages awarded was therefore based on the lower Court’s discretion and not necessarily on Exhibit 6. In the circumstance, said Respondent’s counsel, the Appellant cannot be heard to complain that the damages of N450, 000 only awarded by the trial Court was on account of Exhibit 6.

Learned Counsel for the Appellant must have misconceived the legal position as to the admissibility of Exhibit 6 in one or two important respects.

First, Exhibit 6 was tendered and admitted without any objection at the court of trial. Being a certified true copy of a public document, that is a Report by the Fire Service, it could not be said to have been wrongly admitted. This is because, it does not belong to those categories of documents which could be said to have been wrongly admitted even where no objection had been raised as to its admissibility. Exhibit 6, being a document which is not inadmissible per se could not be said to have been wrongly admitted if no objection was raised as to its admissibility. See, Chukura Akunne V. Mathias Ekwuno 2 others (1952) 14 W.A.C.A 59, Okeke V. Obidire 1965 N.M.L.R. 113, Abolade Ayoola Alade V. Salawu Jagun Olukade (1976) 6 S.C 183, Thanni v. Saibu (1977) 2 S.C 89, 112-113. Kasalimi Raimi V. Moshudi Ogundana (1986) 3 NWLR 97. See also, Mohammed V. Kayode (supra).

Secondly, and as was pointed out by the learned counsel to the Respondent, Exhibit 6 is not caught by the provision of section 91 (3) of the Evidence Act. For, though made during the pendency of the instant suit, it was not made by a person interested at the time when proceedings were pending or anticipated. In Anyeabosi V. R.T Briscoe (supra), the Supreme Court held that a person interested under section 91 (3) of the Evidence Act is a person who stands to derive some financial or other benefits from the outcome of the case or who may suffer some personal loss, damage or detriment as a result of the suit.

In the instant case, Exhibit 6 is a certified true copy of a report on a fire incident prepared by the State Fire Service, although made during the pendency of the suit it is not caught by the provision of section 91 (3) of the Evidence Act because it was not made by “a person interested” within the contemplation of the provision.

Finally, I do not subscribe to the view of the learned counsel for the Appellant that the award of general damages of N450, 000 in this case was based on Exhibit 6. First, as pointed out by the learned counsel for the appellant trespass is actionable pe se and can in cases such as this be awarded without proof of actual loss or injury. Ganiyu V. Onibonoje (supra).

Secondly, I have carefully perused the judgment of the Court from the record of proceedings and there is no indication whatsoever to support the suggestion of the learned counsel for the Appellant that the award of general damages of N450, 000 to the Plaintiff/Respondent was based on Exhibit 6.

Issue NO.4 is accordingly resolved against the Appellant.

On issues Nos. 3 and 5, the Appellant’s main contention is that the Respondent led evidence and relied on a Further Amended Statement of Claim and Further Amended Reply and Defence to counter claim both filed on 9th February 2005, which were no longer extant since there was a Further amended Statement of claim and Further Amended Reply and Defence to counter claim both filed on 10th February 2005 which were deemed as properly filed and served by leave of Court granted on 16th February 2005, and were in the circumstance the last and subsisting pleadings in this matter.

Of this argument, Respondent’s counsel said if is totally misconceived and factually incorrect. That it is noteworthy that the Appellant has not been able to refer the Court to the pages of the Records of Appeal where a Further Amended Statement of Claim and Further amended Reply and Defence to counter claim filed on 9th February 2005 can be found. What is on record, said Respondent’s counsel is a Further Amended Statement of claim (at pages 45-47 of the Record) and a Further Amended Reply and Defence to counter claim (at pages 48-49 of the Record) both dated 9th February 2005 and filed on 10th February 2005. Respondent’s counsel submitted that the Appellant’s contention that the Respondent had abandoned his pleadings of 10th February 2005 is therefore unfounded.

On the contention that the learned trial Judge did not properly evaluate the evidence of the parties in dismissing the Appellant’s counter-claim. Respondent’s counsel said the reasons given by the learned trial Judge for his finding that Exhibit 1 was a genuine and valid conveyance of the property in dispute to the Respondent also explained the dismissal by the learned Judge of the Appellant’s counter-claim.

Except for that which I considered a typing error at the beginning of the Judgment in the instant case at page 125 of the record where the learned trial Judge referred to the Plaintiff’s/Respondent’s Further Amended Statement of claim which was dated on 9/2/05 and filed on 10/2/05, the learned counsel for the Respondent was right to have said that the relevant pleadings of the Plaintiff/Respondent were those dated on 10th February, 2005, filed on 10th February 2005 and deemed properly filed on 16th February 2005. There was nothing in the record of proceedings in this case to suggest that the parties or learned trial Judge utilized any other pleadings in the conduct of the case, apart from those ones contained in pages 45-47 and 48-49 of the record of proceedings.

By these, the contention of the Appellant in relation to issue No. 3 that having regards to the state of pleadings and evidence led at the trial Respondent’s claim should not have been dismissed and judgment entered for the Appellant on his counter claim is unfounded.

Also, the learned counsel for the Appellant was also not right when he suggested under issue No. 5 that there was no proper evaluation of evidence in this case by the learned trial Judge.

A perusal of the Judgment of the learned trial Judge as contained from pages 125-134 of the record shows a painstaking review of the evidence of the parties, and separate treatments of the salient issues in the case, first as it concerns Exhibit 1 and later the concrete building.

Lastly, as pointed out by the learned counsel for the Respondents, the reasons given by the learned trial Judge for his finding that Exhibit 1 was a genuine and valid conveyance of the property in dispute to the Respondent also explained the dismissal by the learned trial Judge of the Appellant’s counter-claim.

Accordingly, Issues Nos. 3 and 5 are also resolved against the Appellant.

The five (5) issues in this appeal have been resolved against the Appellant. The appeal lacks merit and it is accordingly dismissed.

There shall be N20, 000 costs in favour of the Respondent as against the Appellant.

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Other Citations: (2009)LCN/3292(CA)