Alhaji Wahab Arije V. Mustapha Arije & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The respondents in this appeal are some of the children of one Alhaji Garuba Arije (deceased) and beneficiaries of his estate. He died intestate on 15/3/1977. The present appellant and one Alhaji Jimoh Arije were appointed by the family of the deceased to administer his estate on behalf of his children, who were all minors at the time of his death, until at least one of them attained maturity. The Letters of Administration were duly obtained. The children of the deceased however alleged that the administrators failed to live up to their undertaking, as they did not take care of them nor educate them. They also complained that the administrators failed to render account of their administration in spite of repeated demands.

They therefore instituted an action against them along with the Probate Registrar before the High Court of Lagos State by way of Originating Summons filed on 9/7/1998. The appellant was the 2nd respondent. Affidavits and counter affidavits were exchanged between the parties. Before the hearing of the Originating summons, there was

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an effort to resolve the matter amicably. As a result of negotiations between the parties, Terms of Part Settlement were filed, adopted and made the judgment of the Court on 21/9/1999 (pages 71-73 of the record). Pursuant to the said Terms of Part Settlement, the appellant renounced his position as Administrator of the Estate. The respondents acknowledged receipt of original copies of all the title documents in respect of nine landed properties belonging to their late father hitherto in the possession of the Administrators. The properties were listed in a schedule to the Terms. The property at 13 Onayade Street, Ikorodu Road, Igbobi Lagos was a bone of contention and therefore not included in the Terms. Having regard to the controversial nature of the affidavits before the Court, pleadings were ordered, filed and subsequently amended. One of the administrators, Alhaji Jimoh Arije died and his name was struck out. The present appellant became the 1st defendant while the Probate Registrar became the 2nd defendant.

By their Amended Statement of Claim filed on 4/4/2002, the plaintiffs sought the following reliefs against the defendants:

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i) A declaration that property situate at No. 13 Onayade Street, Ikorodu Road, Lagos is owned by Alhaji Garuba Arije (deceased) to the exclusion of any person(s).

ii) A declaration that the property situate at Shifawu Street, Surulere and listed as No. 5, in the Letters of Administration belongs to the said deceased.

iii) An order of interlocutory injunction restraining the 1st Defendant from collecting rents, letting/leasing, disposing or alienating the property situate at No. 13, Onayade Street, Ikorodu Road, Lagos until final determination of this action.

iv) An order compelling the Defendants to render a comprehensive statement of account of the deceased’s estate. Such account is to be prepared by a Chartered Accountant stating income realised from the deceased’s estate since the 1st Defendant took over management and administration of same.

v) An order for possession of property situate at 13, Adebiaye Street, Yaba, Lagos.

vi) An order compelling the 1st Defendant to release all the deceased’s personal documents contained in his brief case kept by the 1st Defendant.

The 1st defendant/appellant filed a Further Amended Statement of Defence

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and Counter-Claim on 10/3/2005 and sought the following reliefs:

a) A declaration that under and by virtue of the Land Certificate No. 7990 dated 16th October 1971 registered in the Lands Registry, Lagos the 1st Defendant is the registered owner of the property situate at 13, Onayade Street, Igbobi, Lagos.

b) An order declaring the purported register of Alhaji Garuba Arije in the Proprietorship Register of the Land Certificate No, MO 7990 dated 16th October 1971 in the Land Registry, Lagos is irregular, null and void.

c) An order directing the Registrar of Title to delete from the said Proprietorship Register the name of Alhaji Garuba Arije and to replace same with the information contained in No. 2 of the said Proprietorship Register.

d) An order of perpetual injunction restraining the claimants, their agents, servants, privies or otherwise however from interfering or causing to be interfered with the 1st Defendant’s right of ownership in respect of the property situate at 13, Onayade Street, Igbobi, Lagos.

In reaction, the plaintiffs filed a reply to the 1st defendant’s Further Amended Statement of Defence and Defence to Counter

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Claim on 4/5/2005. They also filed a further Reply on 5/5/2005.

The matter proceeded to trial. In his defence, the appellant contended that the property at 13 Onayade Street, Igbobi, Lagos belonged to him. That he bought the property in his own name but gave the title documents to his late brother for safe keeping. He stated that it was after his brothers’ demise that he discovered that the name on the title document had been altered to read Alhaji Garuba Arije in place of his own name. It was also his testimony that when the change was discovered, it was agreed by the elders of the family, on the advice of one Dr. M.A. Yesufa, Alhaji Garuba Arije’s solicitor, who had since died, that the property at 13 Onayade Street should remain on the list of properties belonging to the deceased for the purpose of the application for Letters of Administration and that necessary steps to rectify the Proprietorship Register would be taken at a later date. In a considered judgment delivered on 11/10/2006 the plaintiffs’ claims were dismissed while all the reliefs in the 1st defendant’s counter claim were granted in the following terms:

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(a) A declaration is made that under and by virtue of the Land Certificate No. M 7990 dated 16th October, 1971 registered in the Lands Registry, Lagos, the 1st defendant is the registered owner of the property situate at No. 13, Onayade Street, Igbobi, Lagos State.

(b) It is declared that the purported registration of Alhaji Garuba Arije in the Proprietorship Register of the Land Certificate No, MO 7990 dated 10th October, 1971 in the Lands Registry, Lagos, is irregular, null and void.

(c) The Registrar of Titles is hereby directed to delete from the said Proprietorship Register the name of Alhaji Garuba Arije and replace same with the information contained in No. 2 of the said Proprietorship Register.

(d) An order of perpetual injunction is hereby made restraining the Claimants, their agents, servants, privies or otherwise howsoever from interfering or causing to be interfered with the 1st defendant’s right of ownership in respect of the property situate at No. 13, Onayade Street, Igbobi, Lagos State.

Being dissatisfied with the judgment, the respondents herein appealed to the Court of Appeal, Lagos Division (the lower Court). The Court allowed the appeal

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on 7/7/2010 in the following terms:

“From the entirety of the documentary evidence before this Court, this appeal succeeds in Part. The decision of the learned Trial Judge contained in the Judgment of 11 October 2006 granting the reliefs in the counter-claim of the Respondent is hereby set aside. In its stead I enter judgment for the plaintiff as follows:

1. I declare that property situate at No. 13, Onayade Street, Ikorodu Road, Lagos is owned by ALHAJI GARUBA ARIJE (deceased) to the exclusion of any person(s).
2. I declare that the property situate at Shifawu Street Surulere and listed as No. 5, in the Letter of Administration belongs to the said deceased.
3. I order the 1st respondent to render a comprehensive Statement of Account of the deceased estate prepared by a Chartered Accountant stating income realized from the deceased estate from the period when 1st Respondent took over management and administration of same on appointment in 1977 till 1991.
4. I order possession of the property at 13 Adebiaye Street Yaba, Lagos by the Appellant.
5. Cost is assessed and awarded in the sum of N30,000.00 in favour of the Appellant.”

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Not surprisingly, the appellant is aggrieved with the decision and has further appealed to this Court vide a notice of appeal filed on 6/10/2010 containing six grounds of appeal.

At the hearing of the appeal on 15/1/2018, KEHINDE OSIBONA ESQ., leading WONUOLA OMONUWA ESQ., on behalf of the appellant adopted and relied on the appellants brief filed on 6/5/2011 in urging the Court to allow the appeal. JEAN CHIMOR ANISHERE ESQ. leading a team of learned counsel adopted and relied on the respondents’ brief filed on 20/6/2011 in urging the Court to dismiss the appeal and affirm the judgment of the Court below.

Learned counsel for the appellant distilled 6 issues for determination of the appeal thus:

(i) Whether in adjudicating upon the competing claims of the parties in respect of property at 13, Onayade Street Ikorodu Road Igbobi, Yaba, the Learned Justices of the Court of Appeal were right to have set up for the parties a case different from the one set up by the parties in their pleadings.

ii) Whether the Learned Justices of the Court of Appeal were right to have formulated or raised and decided an issue suo motu

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without hearing the parties on such issue so formulated in respect of the property at 13, Onayade Stret, Ikorodu Road, Igbobi, Yaba.

iii) Whether the Learned Justices of the Court of Appeal were not in error when they held that “the Appellants led evidence with documents tendered before the Court to establish title. The burden shifted unto the Respondent to impugn on the validity of the documents.”

iv) Whether the Learned Justices of the Court of Appeal were justified in re-evaluating the evidence before the trial Court and substituting their own views in respect of the Appellants credibility.

v) Whether the Learned Justices of the Court of Appeal were not in error to have ordered possession of the property at 13, Onayade Street, Ikorodu Road, Igbobi, Yaba, Lagos in favour of the Respondents contrary to the evidence lead by the Parties.

vi) Whether the Learned Justices of the Court of Appeal were not in error when they held that “the respondents did not lead evidence in line with the method settled in a catalogue of cases of establishing title to the property at Shifawu Street, Surulere, but proceeded to give judgment in favour of

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respondents.

The respondent also formulated 6 issues as follows:

a) Whether in the light of the facts and testimony adduced, the Appllants can be held to have no estate to inherit in respect of the property situate at No. 13, Onayade Street lkorodu Road, Fadeyi, Lagos.

b) Whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.

c) Whether the 1st respondent was able to prove the allegation of fraud alleged against the deceased.

d) Whether the Appellants are not entitled to a grant of possession of the property situate at 13 Adebiaye Street, Yaba.

e) Whether the Appellants are not entitled to the claims and judgment as stated in the pleadings.

f) Whether the respondents are entitled to judgment on their counter-claim.

I shall determine the appeal on the issues formulated by the appellant. Issues (i) and (ii), which deal with the appellant’s right to fair hearing will be considered together. Issues (iii), (iv) and (vi) on evaluation of evidence will also be considered together, while issue (v) will be considered last.<br< p=””

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Issues (i) & (ii)

In support of the first issue, learned counsel for the appellant submitted that it is the duty of the Court to consider the case before it in light of the party’s complaint and to confine itself to the issues submitted to it for adjudication. He referred to paragraphs 14, 15 and 16 of the respondents’ amended statement of claim, wherein they averred as follows:

14. The plaintiffs aver that their deceased father personally purchased the said piece and parcel of land in the name of the 2nd defendant and this culminated in Title No. MO 7990 dated 16th October 1971 issued in the name of the 2nd defendant by the Lands Registry. Certified True Copy of the said Land Certificate is hereby pleaded and same shall be relied upon at the trial.
15. Due to unreliable behaviour later shown by the 2nd defendant, the said deceased had to recover the said land from the 2nd defendant without any form of protest, caveat or complain from the 2nd defendant who knew that the said land all the while belonged to the deceased.
16. Deed of Transfer with Application No. 73/T/76 dated 14 May, 1976 in respect of the said land was filed at Lands Registry, Lagos transferring the

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said land to the deceased. The said Deed of Transfer is hereby pleaded and Certified True Copy of the said Deed of Transfer shall be relied upon at the trial of this action.

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

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before it and had made out a different case for the parties. He submitted that where a Court misconceives a party’s case and reaches a conclusion based on such misconception, the decision is liable to be set aside. He relied on: Oyewale Vs Oyesoro (1998) 2 NWLR (Pt. 539) 663 @ 679; Adejugbe vs. Ologunja (2004) 2 SC (Pt. 2) 44 @ 73. Relying on Shitta-Bey vs FPSC (1981) 1 SC 40 and Adeniji & Ors vs. Tawa Adeniji & Ors. (1972) 1 ALL NLR (Pt. 1) 301 @ 308. He argued that a Judge must be an impartial arbiter between the parties and must not found its decision on any ground not raised by the parties or in respect of which it has not received argument. He argued that such conduct would result in a breach of the affected party’s constitutional right to fair hearing, which would also result in the proceedings being vitiated and set aside.

The arguments proffered in respect of issue (ii), are also in relation to the discrepancy observed by the lower Court between the names Alhaji Wahab Arije, on the one hand, which appears on all the Court processes filed in the trial Court, as well as the Letters of Administration and international passports belonging to

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the appellant and the name Wahab Iyanda Agbomabini, which appears on Exhibit D, as the original owner of the land. Learned counsel submitted that the issue of identity in respect of the two names did not arise at the trial Court nor at the lower Court. He submitted that the person in whose name the property was purchased had been settled on the pleadings and was not in dispute. He argued that having raised the issue suo motu, the Court was bound to invite the parties to address it on the issue. He cited several authorities in support of the contention that it amounts to a denial of the right to fair hearing where a Court raises an issue suo motu and decides the point without inviting the parties to address it. Among the authorities cited are:Kraus Thompson Org. Ltd. Vs UNICAL (2004) 4 SC (Pt. 1) 65 @ 73; Victino Fixed Odds Ltd. Vs Ojo (2010) 3 SC (Pt. l) 1@ 15.

In response to the above submissions, learned counsel for the respondents rejected the contention that the Court below raised any issue suo motu. He submitted that one of the respondents’ issues at the Court below was “whether in the light of the facts and judgment delivered, the Court properly

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appraised the evidential value of the documents tendered.” While conceding that the duty of evaluation of evidence, ascription of probative value thereto and finding of fact thereon, is exclusively that of the trial Court, he submitted that in certain circumstances, where the trial Court has failed to properly evaluate the evidence, especially as regards the weight to be attached to documentary evidence, an appellate Court is in as good a positon as the trial Court to do so. See: Ebba Vs Ogodo (1984) 1 SCNLR 372; A.G. Oyo State Vs Fairlakes Hotel Ltd. (No.2) (1989) 5 NWLR (Pt.121) 255; Atolagbe Vs Shorun (1985) 4 SC 250 @ 285; Ebenehi & Anor. Vs The State (2009) 2 – 3 SC (Pt. l) 109. He submitted that the lower Court undertook the exercise in response to the respondents’ prayer for it to re-evaluate the documentary evidence. He also noted that in his pleadings and testimony at the trial Court, the appellant contended that the following documents were forged:

Exhibit A – CTC of Deed of Transfer in respect of 13 Onayade Street, Igbobi, Lagos;

Exhibit B – CTC of Proprietorship register;

Exhibit C CTC of application for first

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registration; and

Exhibit D – CTC of Statutory Declaration – Form 3.

That he tendered his international passports, Exhibits R and R1, which contain the names Alhaji Abdulwahab Arije and Mr. Abdulwahab Arije respectively, in proof of the assertion. He submitted that it was under cross-examination that the appellant stated that he bears both Alhaji Abdul Wahab Arije and Abdul Wahab Iyanda Agbomabini. Citing the case of LAGGA Vs Sarhuna (2008) 6 – 7 SC (Pt. 1) 101 @ 123 – 124, he submitted that where documentary evidence has been tendered, the Court has a duty to properly evaluate them and draw necessary inferences therefrom and that where the appellate Court concludes that the learned trial Judge did not properly carry out its duty, an appellate Court would perform the exercise.

He conceded that the Apex Court would not lightly interfere with the findings of the lower Court where such findings are reasonably justified by the evidence and no error in law, substantive or procedural, which would lead to a miscarriage of justice, has been made. He submitted that having rightly held that the appellant failed to prove the allegation of fraud against the

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respondents, the trial Court erred in holding that Exhibits A and B were invalid because they were not executed by the appellant. He submitted that it was this finding that prompted the respondents to invite the lower Court to take a holistic view of the documentary evidence to determine whether or not the finding was perverse. He submitted that the Court below was right when it held that the appellant bears a different name from the name on Exhibits A,B, C and D vis a vis Exhibits R and R1 and that the presumption is that the signatures belong to two different persons. He submitted further that the appellant participated in the process that led to the listing of the property at 13 Onayade Street as part of the estate of the deceased and did not take any action, such as making a report of forgery or any other complaint to the Lands Registry. He contended that Exhibits A, B, C and D are unequivocal as to the fact that the transaction was between Abdul Wahab Iyanda Agbomabini and the deceased and that the appellant did not plead that his names are Abdul Wahab Iyanda Agbomabini. He submitted that once the appellant was unable to prove that Exhibits A and B

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were fraudulent, the documents remained intact and unequivocal. He noted that the Court’s findings did not touch on the credibility of the witnesses but on the weight to be attached to the documents tendered. He submitted that where the contents of a document are clear and unambiguous, oral or parole evidence is not admissible to alter or contradict it. He referred to: Bunge Vs Governor of Rivers State (2006) 6 SC 81 @ 115; R,E,A.N. Ltd. & Ors. Vs Aswani ile Ind. Ltd. (1991) 2 NWLR (Pt.179) 639; Olanlege Vs Afro Continental Nig. Ltd. (1996) 7 SCNJ 145 @ 155. He reiterated the fact that the Letters of Administration clearly and unambiguously listed the property at 13 Onayade Street, Lagos as belonging to the deceased.

On the second issue, as to whether the lower Court raised and resolved an issue suo motu, learned counsel answered in the negative. He repeated his arguments in respect of issue (i). He submitted further that the aspect of the judgment complained of at pages 466 – 467 of the record is a finding on issues raised in the appeal and not an issue formulated suo motu by the Court. He maintained that the issue of denial of fair hearing does not arise.

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Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to

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all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290.

All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.

The first issue to resolve is whether the lower Court made a case for the parties that they did not make

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for themselves, thereby leaving its exalted position as impartial arbiter and descending into the arena of conflict. It should be remembered that the appeal before the Court below was at the instance of the present respondents. Of particular relevance to the issues under consideration are issues 1, 2 and 3 formulated by them, which are as follows:

“1. Whether in the light of the facts and testimony adduced, the appellant can be held to have no estate to inherit in respect of the property at No. 13 Onayade Street, Ikorodu Road, Fadeyi, Lagos.

2. Whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.
3. Whether the 1st respondent was able to prove the allegation of fraud against the deceased.”

The Court considered the three issues together. Before considering how the issues were resolved, it appears to me to be quite obvious that by issue 2, the appellants (now respondents) called upon the lower Court to determine whether the learned trial Judge properly appraised the documentary evidence before him. It is well settled that the evaluation of evidence is primarily the

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

By paragraphs 14 – 16 of their Amended Statement of Claim (reproduced earlier in this judgment), the respondents claimed that the property in dispute belonged to their late father but was originally registered in the appellant’s name. They further averred that the property was subsequently recovered from him, without protest, when he exhibited unreliable behaviour. They pleaded

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that the recovery was evidenced by a Deed of Transfer vide an application No. 73/T/76 dated 14/5/1976. In paragraphs 23-26 of the 1st defendant/appellant’s Further Amended Statement of Defence at page 252 of the record, he pleaded thus:

23. The 1st defendant avers that under and by virtue of a temporary receipt, the 1st defendant purchased through the Deceased, the property situate at 13 Onayade Street, Igbobi, Lagos. The 1st defendant shall at the trial of the suit herein rely on the said receipt.
24. The 1st defendant aver that a Deed of Conveyance dated 4 February 1969 was executed in favour of the 1st defendant by the vendor of the said parcel of land. The 1st defendant shall at the trial of the suit herein rely on the said Deed of Conveyance.
25. The 1st defendant further avers that the said conveyance referred to in paragraph 24 above was duly registered at the Lands Registry with title No. MO 7990 and a Land Certificate were (sic) issued.
26. The 1st defendant avers that unknown to him, the Deceased fraudulently represented to the Registry of Lands that the said property situate at 13 Onayade Street, Igbobi, Lagos had

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been sold to him by the 1st defendant and the Register was altered to delete the 1st defendants name in place of the deceased.

PARTICULARS OF FRAUD

(a) The Registration Form was forged.

(b) The transfer form was forged.

(c) The registration documents were fraudulently received by the said Alhaji Garuba Arije on behalf of the 1st Respondent.”

PW1, Olaonipekun Cole, a Higher Investigation Officer (Litigation), serving with the Lands Registry under the Lands Bureau, Alausa, Lagos was subpoenaed at the instance of the plaintiffs/respondents at the trial Court to tender certain documents in support of their pleadings. He tendered Exhibit A, a CTC of the Deed of Transfer.

The transfer in Exhibit A was registered in the Proprietorship Register, Exhibit B, as Title No. MO 7990.

PW1 testified at pages 142 and 143 of the record that:

“The first registered owner of the property on Exhibit B is one Alhaji Abdul Wahab Agbomabini. The name of the first registered owner was cancelled as a result of the transfer in Exhibit A. Before the name of the first registered owner on Exhibit B, he has to fill and sign an application form for first registration of title.”

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A certified true copy of Form 1A (application for first registration) was tendered through the witness as Exhibt C. He continued his testimony as follows:

” The person presenting Exhibit C must fill and sign a Form 3 i.e. Statutory Declaration before completion.”

A certified true copy of Form 3 was admitted in evidence and marked Exhibit D. At pages 16 – 17 of the record, the trial Court, in reviewing the evidence before it, stated thus:

“On issue of ownership, CW1, Olaonipekun Cole testified that the Record in the Lands Registry, Alausa, Lagos shows the 1st Defendants name as the first registered owner of the property by virtue of Exhibit A but transfer or proprietorship is effected in Exhibits B, Exhibits C and D are documents relating to the first registration and statutory declaration before completion of first registration. The 1st defendant denied signing Exhibits A, C and D and urged me to compare those signatures with his in Exhibit R and R1.

Clearly the evidential value to be placed on the documents in respect of which the appellant disputed his signature, was a

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live issue before the trial Court. At page 29 of the record, the learned trial Judge extensively examined the signatures on Exhibits A, C and D which were disputed by the appellant against Exhibits H, R and R1, which he admitted bears his signature. The Court was satisfied that the 1st defendant had successfully impeached Exhibits A, C and D and held that in the circumstance, Exhibit A could not have validly transferred any estate to the deceased father of the plaintiffs. It is significant that the learned trial Judge found that the 1st defendant/appellant failed to prove the allegation of fraud in respect of the same documents made against the deceased. As stated earlier, at the conclusion of the trial, the respondents’ claims were dismissed and judgment entered in favour of the appellant in terms of his counter claim.

I also pointed out earlier that one of the issues before the lower Court was “whether in the light of the facts and judgment delivered, the Court properly appraised the evidential value of the documents tendered.” The Court in summarizing the arguments of learned counsel, stated inter alia as follows:

It is the contention of

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learned counsel [for the Appellants] that Exhibits A, C & D and the international passports tendered were not properly appraised by the lower Court before arriving at a decision. It is his further submission that the allegation of a crime must be proved beyond reasonable doubt. He contended that there is nowhere in the testimonies of all the witnesses called where it was shown that any fraudulent act or registration was reported at the Lands Registry.

Learned counsel for the Respondent, Mr. Kehinde Osibona submitted that any transfer or registration of any interest in land consequent upon a forged disposition would be absolutely void and confers no estate on such a registered owner It is his contention that the 1st respondent has a better knowledge of the issue as he bought the property for himself and the evidence of the Appellants’ 2nd and 3rd witnesses in respect of the transfer of the property is hearsay and therefore inadmissible.

He referred to S. 108 (1) of the Evidence Act and submits that the signatures of the 1st respondent on Exhibit H, R and R1 contradict the signatures on the Deed of Transfer Exhibit A and that it is settled

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law that where there was no proper transfer, the registration of the Deceased (sic) was void.”

From all that has been observed above, it is crystal clear that the Court below did not set up a case for parties different from what they presented, nor did it raise the issue regarding the difference between the appellant’s names as they appear on Exhibits A, C and D on the one hand and Exhibits R and R1 on the other, suo motu. The respondents, as appellants before the lower Court, had alleged that the trial Court did not properly appraise or ascribe probative value to the documentary evidence before it. Their contention was that the trial Court having found that the appellant failed to prove the allegation of fraud, the documentary evidence spoke for itself, and the Court therefore erred in holding that they did not establish their claims. In other words, that the Deed of Transfer in favour of their late father, duly registered at the Lands Registry, was valid and subsisting. In resolving the issue, the lower Court was bound to take cognisance of the fact that the names on Exhibits A, C and D are different from the names on Exhibits R and R1, the international

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passports belonging to the appellant. Both learned counsel addressed the Court on the legal implications. There was, in my considered view, no breach of the appellant’s right to fair hearing.

I therefore hold that there is no merit in issues (i) and (ii). They are accordingly resolved against the appellant.

Issues (iii), (iv) and (vi)

With respect to issue (iii), learned counsel for the appellant relied on Section 137 (1) of the Evidence Act in submitting that having regard to the state of the pleadings, particularly paragraphs 14, 15 and 16 of the Amended Statement of Claim, the onus was on the respondents (as plaintiffs) to prove that the property in dispute, which was purchased by their father in the appellant’s name, was later transferred back to him vide Exhibit A, a certified true copy of the Deed of Transfer. He submitted that the appellant having denied signing the document, the onus was on the respondents to plead or call the attesting witnesses to prove that he in fact signed same. He submitted that the respondents could not be said to have established their title based on documentary evidence in view of contradictory evidence given by

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their witnesses. He noted that CW3 and CW2 gave different reasons for the transfer of the property to their father whereas in Exhibit A it is stated that the deceased purchased the property from the appellant for the sum of N4,000.00. Relying on the cases of Yusuf Vs Adegoke (2007) 4 SC (Pt. 1) 126 @ 160 & 164/165 and Okhuarobo Vs Aigbe (2002) 5 SC (Pt. 1) 141, he submitted that the law is trite that parties must be consistent in presenting their case to the Court. He submitted that on the other hand, the appellant gave convincing evidence, which was unchallenged, of having purchased the property in his name through Exhibits P and Q, and that in Exhibit B, the proprietorship register, he was registered as the first owner. He submitted that his evidence under cross examination that he is also known as Abdul Wahab Agbomabini, ought to have been accepted by the lower Court as sufficient proof of that fact. He submitted that in a claim for declaration of title, the onus is on the claimant to prove his entitlement to the reliefs sought and that he must rely on the strength of his own case and not the weakness of the defence. He noted that the exception to the

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general rule is where the defendants’ case supports the claimant’s and contains evidence which the claimant may rely on, in which case the claimant is entitled to utilise such evidence. He referred to: Kodilinye Vs Odu 2 WACA 336 @ 337; Ajiboye Vs Ishola (2006) 6 – 7 SC 1 @ 17; Kaiyaoja Vs Egunla (1974) 12 SC 51; Odi Vs lyala (2004) 4 SC (Pt. 1) 1@ 20.

In support of issue (iv), learned counsel submitted that the duty of appraising evidence is pre-eminently that of the trial Court. He contended that the lower Court was wrong to have re-evaluated the evidence and to have substituted its own views for those of the trial Court. He referred to several authorities, including: Anyanwu & Ors. Vs Uzowuaka & Ors. (2009) 6 – 7 SC 44 @ 54 – 55; Egri Vs Ukperi (1974) 1 NMLR 22: Ebba Vs Ogodo & Anor. (1984) 4 SC 84; Oyewole Vs Akande (2009) 7 SC 137 @ 156 – 152. He submitted that the observation of the lower Court that the appellant participated fully in the application for the grant of Letters of Administration, which led to the listing of the property in dispute as part of the estate of the deceased and failed to take any steps to challenge the said

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listing, failed to take cognisance of the pleading in paragraphs 27 and 28 of the Further Amended Statement of Defence and Counter claim and evidence led in support thereof to the effect that the listing was not challenged based on the advice of the respondents’ father’s solicitor. He submitted that the averments were unchallenged and therefore the onus of proof was discharged upon minimal proof. He relied on: SPDC Nig. Ltd. Vs Edamkue (2009) 6 7 SC @ 100; Kuforiji vs. VYB Ltd. (1981) 6 7 SC 25 @ 46.

In respect of issue (vi), learned counsel argued that the respondents similarly failed to establish their entitlement to a declaration in respect of the property at Sifawu Street, Surulere, Lagos.

In response to the submissions above, learned counsel for the respondents submitted that where the trial Court did not properly evaluate the evidence before it, an appellate Court has the power to re-evaluate it. He relied on Bunge Vs Governor of Rivers State (supra), Salako vs. Dosunmu (1997) 7 SCNJ 124; UDC Ltd. vs. D.A. Hammond (Nig) Ltd. (1998) 9 NWLR (Pt. 565) 340; Ademolagu vs Adani Pekun (1999) 1 NWLR (Pt. 587) 440. He submitted that

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the respondents’ witnesses all testified that (i) the properties listed in the Letters of Administration belong to their father; (ii) that the property in dispute is registered in the name of their deceased father at the Lands Registry in Lagos; and (iii) that the appellants signature had never been regular, as shown in Exhibits A, B, C, D, R and R1. He submitted that the appellant and his witnesses failed to prove fraud at the Lands Registry in relation to the property in dispute; that he did not at any time lodge a complaint alleging fraud at the Lands Registry; that he failed to prove that he did not execute Exhibit A. He submitted that the trial Court is not entitled to pick and choose which evidence to assess, as was done in this case and that in the circumstances, the lower Court had the power to re-evaluate the evidence in order to remedy the situation. He referred to: Onisaodu Vs Elewuju (2006) 7 SC (Pt. 2) 45 @ 50; Mogaji Vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR (pt.8) 393.

With regard to the property at Sifawu Street, Surulere, Lagos, learned counsel submitted that in his testimony before the trial Court (page 362 lines 14 – 15 of the record), the appellant

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stated that he knew nothing about the property. He submitted that having not contested the Letters of Administration wherein the property at Sifawu Street was listed as belonging to the deceased, there is no basis for the appellant’s complaint. He submitted that the lower Court merely declared the correct position as to the ownership of the property.

The law is settled, as rightly submitted by learned counsel for the appellant, that a claim for declaration of title may be proved in any one of the following ways:

1. By traditional evidence;
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

See: Idundun Vs Okumagba (1976) 9 – 10 SC 227 @ 246; Nkado Vs Obiano (1997) 5 SCNJ 33 @ 47; Owhonda Vs Ekpechi (2003) 9 – 11 SCNJ 1 @ 6.

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It is equally trite that the onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See: Kodilinye Vs Odu 2 WACA 336 @ 337; Onwugbufor vs Okoye (1996) 1 NWLR (Pt. 424) 252; Shittu vs. Fashawe (2005) 7 SC (Pt. II) 107; Nruamah & Ors vs. Ebuzoeme & Ors. (2013) 1 SC 31 @ 55 56.

In the instant case, the respondents relied on documentary evidence, particularly the Letters of Administration, Exhibit E and Exhibits A, B, C and D. The appellant denied signing Exhibits A, B, C and D and contended that the documents were forged. He tendered his international passports, Exhibits R and R1, to enable the trial Court compare the signatures therein with the disputed signatures. The Court held that the appellant failed to prove the allegation of forgery. The respondents tendered evidence relating to the transfer of the property situate at 13 Onayade Street, Igbobi, Lagos and its due registration at the Lands Registry. They also tendered the Letters of

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Administration granted to the appellant and his now deceased co-Administrator, wherein the property was listed as belonging to the late Alhaji Garuba Arije. The appellant was unable to impugn the documents pertaining to the registration of the property nor was he able to prove that his signature on the Deed of Transfer was forged. Olaonipekun Cole, the subpoenaed witness who testified as CW1, stated categorically that his office did not receive any report of fraud in connection with the registration of the property. The appellant was also unable to proffer any satisfactory evidence as to why he listed the property as belonging to the deceased when he applied for the grant of the Letters of Administration (Exhibit E). None of the elders who attended the meeting where he was allegedly advised to defer any action relating to the rectification of the Proprietorship Register was called as a witness. In any event, oral evidence cannot be used to vary or contradict the contents of documentary evidence, except where fraud is pleaded. See: Bunge vs. Governor of Rivers State (2006) ALL FWLR (pt. 325) 1; Egharevba Vs. Osagie (2009) 12 SC (Pt. III) 123; A.G. Bendel State

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UBA Ltd. (1986) 4 NWLR (Pt. 37) 5. See also Section 128 of the Evidence Act 2011. According to Exhibit E, the property situate at 13 Onayade Street, Igbobi, Lagos belonged to the late Alhaji Garuba Arije. The Court below, at pages 465 – 469 of the record, held thus:

“When a finding of fact is made in respect of documentary evidence and it is contradictory or perverse, the Appeal Court will have to intervene to set aside such finding and make its own finding as justified by the evidence.

… The learned trial Judge found that Exhibit A, C and D have been impeached by the 1st respondent’s evidence, regardless of the evidence of the first witness for the appellant Olaonipekun Cole who told the Court that there was no report of fraud. The lower Court however held that the Exhibit did not validly transfer any estate to the claimants deceased father having not been executed by the 1st respondent. Exhibit A is a document on transfer of Leasehold land under the Registration of Titles Act. The document is unambiguous. It shows the Deed of Transfer to Alhaji Garuba Atanda Arije by Abdul Wahabi Iyanda Agbomabini of 19 Docemo Street, Lagos in the

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presence of two witnesses, one Dauda Atanda and Caleb Niyi Oguntunde. None of these witnesses was pleaded or called to testify on the handwriting.

The purpose of witnessing the signing of a document is for corroboration of the signatures therein in case of a dispute and the contents. More importantly is the fact that the 1st respondent in evidence in chief did not tell the Court below that he has two names, Alhaji Wahab Arije and Alhaji Wahab Iyanda Agbomabini until he was cross examined on that point. The signature on Exhibit A is that of Abdul Wahab Iyanda Agbomabini. This is a different name from the names on the two international passports – Exh. R and R1, which the learned trial Judge relied on to compare the signatures therein with the signature on Exhibit A and C. The two international passport bears (sic) the name of Alhaji Abdul Wahab Arije not Abdul Wahab lyanda Agbomabini. In Exhibit D, the registration document, the signature on Exhibit A and C are similar and the same person Abdul Wahab lyanda Agbomabini made the declaration and signed. Exhibit D contains the name of the original owner of the land. The name of the 1st respondent in all the

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processes filed in the Court below, inclusive of Exhibit E, the Letter of Administration and the International passports Exhibits R and R1 had his name clearly written as Wahab Arije not Abdul Wahab lyanda Agbomabini.

Therefore, if the names are not the same as is obvious, having not pleaded they are, the natural inference is that they are not the same person and the incidental presumption is that the different signatures found by the learned trial Judge is in respect of two different names. The signature on Exh. A, C and D are similar with the last name clearly written Agbomabini unlike the 1st respondent’s signature which style does not reflect the name.

The learned trial Judge discounted the evidence of PW1. This witness works in the Lands Registry and was subpoenaed to Court and he tendered Exhibit A. Exhibit B, the copy of the Register was tendered through him during cross examination. Exhibit B on the second page reflects the cancellation of the name of Abdul Wahab lyanda Agbomabini and the transfer to Alhaji Garuba Atanda Arije in 1976

PW1 set out the procedure that lead (sic) to registration of titles. Once fraud is

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not reported in the Registrar (sic), the presumption is that the registration is in order. PW1 in evidence stated that no report of fraud was made in the Registrar (sic: Registry)..

The learned trial Judge on the basis of the uncontradicted documentary evidence tendered in Court rightly found the signatures on Exh. A, C and D were not the same as the one in Exh, R and R1 but erred when he held that Exhibits A and B were invalid having not been executed by the 1st defendant (now 1st respondent). The reason is obvious. The 1st respondent bears different name from the name on Exhibit A, B, C and D. The presumption is that the signatures are that of two different persons.”

At page 441 of the record, the Court concluded on the issue as follows:

“The learned trial Judge rightly found that the 1st respondent failed to prove the offence of fraud alleged against the deceased in respect of Exhibits A & B. Surprisingly, the learned trial Judge, having found the allegation of fraud was not proved beyond reasonable doubt, still proceeded to dismiss the claim of the appellant[s]. Exhibit A is the Deed of Transfer which the 1st respondent

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claimed was fraudulently obtained. If he could not establish the allegation of fraud, the documents Exhibit A & B remain intact and unequivocal… In light of the foregoing, I resolve Issues 1, 2 and 3 in favour of the appellant).”

I have reproduced the finding of the lower Court in detail, as it represents a thorough analysis and proper resolution of the issues canvassed before it. I am of the view that the findings are unassailable. It will be recalled that the appellant filed a counter claim wherein he not only sought a declaratory relief, but also made an allegation of forgery. In respect of the declaratory relief, being a claimant, he is subject to the same standard of proof as the respondents, which he failed to discharge.

As regards the allegation of forgery, he was bound to prove it beyond reasonable doubt. There are concurrent findings of fact by the two lower Courts that he failed to discharge the burden of proof in that regard.

With regard to Issue (vi), I also agree with learned counsel for the respondents that the property at Sifawu Street, Surulere, Lagos is listed as No. 5 in the list of properties belonging to the

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deceased contained in Exhibit E, the Letters of Administration. Having stated that he knew nothing about the property, there no basis for his complaint against the finding of the Court regarding same. I am not persuaded to interfere with the sound reasoning of the Court below. Consequently, the issues under consideration are without merit and are accordingly resolved against the appellant.

Issue (v)

The appellant’s contention under this issue is that the lower Court ought not to have made an order granting possession of the property at 13 Adebiaye Street Yaba, Lagos, in favour of the respondents having regard to his evidence before the trial Court that he had released the property to the respondents and their own evidence to the effect that they are already in possession of the property. He submitted that the Court does not make an order in vain.

Learned counsel for the respondent submitted that the title documents in respect of No. 13 Adebiaye Street were released to the respondents as a result of the part resolution of the dispute between the parties evidenced by the Terms of Part Settlement entered as the judgment of the trial Court on 21st

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September, 1999. He submitted that the consent judgment is binding on the parties and that the trial Court, in holding that they were not entitled to a grant of possession of the property, raised an issue that had already been determined and settled by the said consent judgment. He noted that while the appellant had released the title documents in respect of the property, he was still in possession.

The Terms of Part Settlement between the parties can be found at pages 71 – 73 of the record. In paragraph 2 thereof, the respondents acknowledged receipt of the original copies of all the title documents to the landed property belonging to their late father, hitherto in the possession of the Administrators. The properties, with the exception of the property at 13 Onayade Street, Igbobi, Lagos, are listed in subparagraphs (a) to (g) in the schedule thereto. The property at No. 13 Abebiaye Street, yaba, Lagos is listed in sub-paragraph (d). Paragraph 3 states thus:

“That the respondents having delivered the said documents to the said properties to the applicants have no interest whatsoever in the management and control of the Estate of Alhaji Garuba Arije (Deceased).

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A consent judgment is binding between the consenting parties and their privies and is effective in respect of the matters settled therein in the same manner as any judgment given thereafter in respect of matters fully fought out to the end. See: Vulcan Gases Ltd vs. Gesellschaft Fur Industries Gassverwertung A.G. (G.I.V) (2001) 9 NWLR (Pt. 719) 610; (2001) LPELR 3465 (SC) 1 @ 50 51 D A; Talabi Vs Adeseye (1972) 1 All NLR (Pt. 2) 255. The Terms of Part Settlement” was made the judgment of the Court on 21/9/99. One of the reliefs sought by the respondents in their Amended Statement of Claim was for “an order for possession of the property situate at 13 Adebiaye Street, Yaba, Lagos.” The learned trial Judge refused this relief on the ground that the evidence of the appellant that he had handed over the property to the respondents was unchallenged and that it is listed as item No. 2 in Exhibit E. The lower Court was of the view that having made the Terms of Part Settlement the judgment of the Court, the order for possession of 13 Adebiaye street was incidental to the release of the title documents and ought to

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have been granted. I agree with their Lordships. In any event, the appellant has not shown that he has suffered any miscarriage of justice by the said order. I resolve this issue against him.

In conclusion, I hold that this appeal is devoid of merit. It is hereby dismissed. Costs of N250,000.00 are awarded against the appellant and in favour of the respondents.

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SC.78/2011