Abraham Oguneye Jobi v. Peter Adewumi Oshilaja (1963)

LawGlobal-Hub Lead Judgment Report

BRETT, F.J.

The appellant in this case brought an action in the High Court of Lagos, claiming a declaration of title to a piece of land at Ibidun Street, Surulere, damages for trespass and an injunction to restrain further acts of trespass.

The respondent disputed the appellant’s title and the issues finally narrowed themselves down to a very simple point, each party claiming to derive title from the family of Salamotu F. Amore.

The plaintiff relied on a conveyance dated the 26th May, 1956, and purporting to be executed by Chief Tijani Babalola and Jibrill Akintola Onisemo as vendors, with Anthony Olu Lawanson as attesting witness, which was put in evidence as Exhibit A.

The defendant pleaded that this conveyance was never executed by the vendors named therein, and relied on a conveyance dated the 16th October, 1956, and executed by Tijani Babalola, Sariatu Onisemo and Layide Onisemo as vendors, the fIrst-named in the presence of E. G. Ladere, and the other two, who are Apparently illiterate, in the presence of a magistrate in compliance with section 8( 1) of the Land Registration Act; this conveyance was produced in evidence as Exhibit M. On the pleadings the onus was clearly on the plaintiff to prove that his conveyance was duly executed.

When the case came up for hearing on the 13th May, 1960, counsel for the defendant drew attention to the plea concerning the plaintiff’s conveyance and stated that a report had been made to the police three years previously and that nothing had been heard of it. Counsel for the plaintiff said that he also wished the police to investigate the matter, and the judge adjourned the case, with an order that a copy of the proceedings and the original of the disputed conveyance should be submitted to the Inspector-General of Police, who was directed to investigate the matter and report to the court what action he took or proposed to take. A letter was in due course received from the Commissioner of Police and a copy of it was ordered to be served on counsel for each party.

The hearing proper started on the 11th October, 1960. The only witness for the plaintiff was the plaintiff himself, who testified that he had negotiated for the purchase of the land with Olu Lawanson and Jubrilla Ayantola Onisemo, who may not be the same person as Jibrill Akintola Onisemo. He did not say that he was present when his conveyance, Exhibit A, was executed by Chief Tijani Babalola, or that Chief Tijani Babalola had acknowledged to him that he had executed it.

For the defence, Chief Tijani Babalola himself gave evidence, denying that he had executed Exhibit A. He agreed that the signature of his late brother, Jibrill Akintola Onisemo, on Exhibit A looked genuine, and that the signature in his own name looked like his genuine signature on the other conveyance, Exhibit M, but he remained unshaken in his story that the signature was not made by him. Neither side called Lawanson, who had signed as attesting witness to Exhibit A.

After the case for the defence had been closed, counsel for the plaintiff applied for permission to call a police witness to rebut the evidence given by the defendant, but this application was refused, and it is not now suggested that the judge exercised his discretion wrongly in refusing it.

In giving judgment for the defendant, the judge held that the plaintiff had failed to prove that his conveyance, Exhibit A, had been executed by Chief Tijani Babalola, whose signature it is agreed was necessary for a valid conveyance. The report received from the police had not been put in evidence by either party, and one of the grounds of appeal complains that although the judge stated in one part of his judgment that his judgment was unaffected by the production or non-production of the report he made various quotations from it, and referred to it in his closing words as supporting the view which he had formed.

The report appears from the quotations made from it to have been equivocal to have expressed the opinion at one place that the signature was not a forgery, and at another that the signature was obtained by some form of deceit-a matter on which it was not the function of the police to express an opinion for the information of the court. At all events, I think, with respect, that since neither party elected to call the police officer who had examined the document, so as to obtain expert evidence from him, it would have been more correct if the judge had omitted all reference to the police report in his judgment.

I do not, however, consider that this is a ground on which his judgment could be reversed, or that on the relevant material which he took into consideration he could have come to any other conclusion than that expressed in his judgment.

The essence of the complaint made on behalf of the appellant is that in spite of the lack of any positive evidence tending to rebut Chief Tijani Babalola’s denial that he signed Exhibit A, and of the omission to call the attesting witness, Lawanson, or a handwriting expert,it was the duty of the judge to compare the signatures on the two conveyances and form his own opinion as to the genuineness of the signature on Exhibit A, and in support of this submission reliance is placed on sections 99, 100 and 107 of the Evidence Act, and on the decisions in Cresswell v. Jackson 2 F. and F. 24, 175 E.R. 942, and Cobbett v. Kilminster 4 F. and F. 490, 176 E.R. 659. In Cobbett v. Kilminster it seems clear that there was positive evidence that the disputed signature was that of the party to whom it was attributed, and the case is distinguishable on that ground.

In Cresswell v. Jackson a person called as an attesting witness to a codicil was asked if the whole of the codicil was not written by him, and, on his denying this but admitting that he had written other writings which were shown to him, the codicil and the admitted writings were allowed to be shown to the jury for the purpose of comparison of the handwriting, and it does not appear from the report that any further evidence on the point was produced.

This case was decided in 1860, since when advances in scientific knowledge have made the detection of forgeries in handwriting a much more exact process. The evidence of handwriting experts has now ceased to be regarded with the suspicion engendered by the failure of justice in Adolph Beck’s case, and the modem view, in criminal cases at least, is that a jury should not be left unassisted to decide questions of disputed handwriting on their own: see R. v. Tilley [1961] 1 W.L.R. 1309. In R. v. Wilcox, FSC 208/1961, [1961] All N.L.R 631, this Court distinguished between examining a document to supplement evidence which had been given as to the authorship of certain entries and doing so to draw conclusions on a matter as to which no evidence had been given. Cf. R. v. Appeal (1951) 13 W.A.C.A. 143.

In the present case I do not think it is necessary to decide what limits the law sets to the judge’s power of examining a document and forming his own conclusion as to the handwriting. On the one hand the judge had before him the clear denial of Chief Tijani Babalola; on the other hand he had the omission of the plaintiff to call either Lawanson or a handwriting expert from the police.

I see no reason why he should have thought it necessary or even proper to rely on his own examination of the documents in order to form a layman’s opinion on a matter as to which Lawanson could have spoken directly and an expert could have given an opinion based on his specialised knowledge. In my view the judge came to a correct decision on the evidence before him, and I would dismiss the appeal with costs assessed at 22 guineas.

It was submitted on behalf of the respondent that Exhibit M, though executed after Exhibit A, was registered before it and therefore took priority over it in accordance with section 16 of the Land Registration Act, even if Exhibit A was a genuine document. There may well be substance in this submission, but I find it unnecessary to decide whether there is or not, since I prefer to rest my decision on the grounds already stated.

F.S.C.472/1961