3PLR – CHIEF JOEL E. BABATOLA V. MRS. MARGARET ADEWUMI
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
CHIEF JOEL E. BABATOLA
V.
MRS. MARGARET ADEWUMI
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 13TH DAY OF JULY, 2011
CA/AE/30/2010
3PLR/2002/28 (SC)
OTHER CITATIONS
7 S.C. (PART II) 236
BEFORE THEIR LORDSHIPS
UWANI MUSA ABBA AJI, JCA
CHIDI NWAOMA UWA, JCA
HARUNA M. TSAMMANI, JCA
BETWEEN
CHIEF JOEL E. BABATOLA – Appellants
AND
MRS. MARGARET ADEWUMI – Respondents
REPRESENTATION
OWOSENI AJAYI Esq;
SIMEON NYIMEONE Esq. For Appellant
AND
Respondent is absent and unrepresented For Respondent
ORIGINATING COURT
EKITI STATE HIGH COURT, ADO EKITI [I.O AKEJU, J., Presiding]
MAIN ISSUES
LAND LAW:- Declaration of Title To Land – Primary duty of a claimant to show the exact and precise identity of the land on which he hinges his claim – Where the evidence led as to the identity of the land claimed is scanty or contradictory or inconclusive –Whether the declaration sought will be refused for lack of certainty of the identity of the land claimed or the subject matter – Whether it is only where the defendant has made identity of the land an issue in his statement of defence, that the necessity would arise for the claimant to lead evidence on the identity of the land which he claims
LAND LAW:- Proof of identity to land – Need for the Plaintiff to succeed by adducing evidence which is such that it ascertains the land in dispute without any doubt whatsoever – Need for such evidence to be of such quality that the description of the land in dispute is so clear that it leaves neither the court nor the defendant in any doubt as to the specific area claimed, in the sense that, from the description given by the plaintiff, a Surveyor can produce a plan showing accurately the land in dispute – Whether a better way of proving the identity and extent of the land claimed is for the plaintiff to file or tender a survey plan showing or reflecting clearly the boundaries, location or extent of the land he claims – Need for Survey Plan to show clearly the dimensions of the land, the location of the land, the boundaries of the land and other salient or clear features appertaining the land in dispute
LAND LAW:- Where a party makes a claim for declaration of title to land – Duty of court to ensure that he succeeds on the strength of the evidence adduced by him and not on the weakness of the defendant’s case – Whether declaration would not be granted, even on admission by his adversary, where he has failed to adduce credible evidence as would move the court to exercise its discretion in his favour – Where evidence adduced by the plaintiff is unsatisfactory – Implication – Whether the trial court does not have to go into or consider the case of the defendant but dismiss the plaintiff’s claim
CHILDREN AND WOMEN LAW:- Women and Land/Real Estate – Women and Justice Administration – Defence of interest in land – Relevant considerations – Need to engage sound lawyers
PRACTICE AND PROCEDURE – EVIDENCE:- Burden of Proof – Grant of a declaratory relief as to title to land – Whether of proof is on party seeking same – Need to lead credible evidence showing that he is entitled to the declaration of title sought
PRACTICE AND PROCEDURE – EVIDENCE:- Civil Cases and Pleadings – Burden of Proof – Whether the legal burden is fixed by the pleadings and is settled as a matter of law, and remains unchanged throughout the trial exactly where the pleadings place it – Whether the ultimate burden of establishing a case is as disclosed in the pleadings – Whether the burden is on the person who would fail, if upon the pleadings filed, no evidence is led thereon on either side – Whether the general burden of proof is upon the party, whether plaintiff or defendant who asserts the affirmative of the issue
PRACTICE AND PROCEDURE – EVIDENCE:- Calling of Evidence – Section 149(d) of the Evidence Act – Presumption – Whether operates against a party to the proceeding who withholds evidence on an issue – Whether focuses not on the failure to call a particular piece of evidence on the issue but the failure to call evidence on that issue – Where a party has called evidence on an issue – Whether failure to call a particular piece of evidence will not raise the presumption where the party has called other evidence – Need for trial court to be satisfied that the evidence exists and that it could be produced by the application of due human diligence and knowledge, that it was not produced in Court and that it was withheld by the party who could have produced it – When presumption would not arise
PRACTICE AND PROCEDURE – EVIDENCE:- Calling of Witnesses – Whether a party to a civil case is not bound to call a particular witness or witnesses, if he can prove his case without calling that particular witness – Whether it is the party who perceives that a particular witness is vital or material to his case on a particular issue, that has the duty to call such witness – Whether it is not for the adversary or even the court to dictate to a party which witness to field in support of his case – Exclusive preserve of a party or his counsel, after weighing all the facts and circumstances of his case, to decide on the person or persons he will field as witnesses in support of his case
PRACTICE AND PROCEDURE – ACTION:- Declaratory Action – Whether the burden is on the claimant to lead credible evidence to show that he is entitled to the declaration sought – Need to succeed on the strength of his own case, and not on the weakness of the defence, even where there is an admission by the defendant – Whether declaratory judgments are not awarded on admissions but on the evidence of the claimant – Whether courts do not grant declaratory reliefs either in default of defence or admissions, without hearing evidence and being satisfied by such evidence – Position on declaratory reliefs as an exception to the rule that facts admitted need no proof
PRACTICE AND PROCEDURE – COURT:- Trial Court – Finding of facts – Duty of the trial court who had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial –Reluctance of appellate court to interfere with the findings of fact made by the trial court, especially where such findings touch on the credibility of witnesses – Justification – Duty of appellate courts to interfere, only where the trial court failed in his primary duty to properly evaluate and ascribe probative value to the evidence led at the trial – Need to show there are special circumstances to warrant or justify the interference – Relevant considerations
PRACTICE AND PROCEDURE – ACTION: Pleadings – When it will be prudent and desirable for the Plaintiff to file a reply in answer to new issue raised – Whether when by the nature of the Statement of Defence and the averments contained therein, the plaintiff intends to lead material evidence in rebuttal of the allegation raised in the Statement of Defence, or he intends to raise new issues not covered by his pleading in the Statement of Claim or whereby the statement of defence already filed
PRACTICE AND PROCEDURE – ACTION:- Pleadings – Rule of practice where no counter claim has been filed – Whether a reply is generally unnecessary, if the sole purpose of the reply is to deny allegations contained in the Statement of Defence – Where no counter claim or new issues are raised in the Statement of Defence – Whether there is an implied joinder of issues on that defence, and it is therefore deemed that the material allegations of fact raised in the Statement of Defence are denied – Whether it is generally not necessary for a plaintiff to file a reply if his only purpose or intention in doing so is to deny any general allegation of fact that the defendant may have made in the Statement of Defence
PRACTICE AND PROCEDURE – EVIDENCE:– Standard Of Proof – Section 138(1) of the Evidence Act – Where there is a specific allegation of crime in a pleading so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence – Need for that allegation of crime to be proved beyond reasonable doubt
PRACTICE AND PROCEDURE – EVIDENCE:– Standard of Proof – Forgery as a serious crime – Where it is alleged by a party to a civil action, either as the foundation of the claim or defence – Need to be proved beyond reasonable doubt – Need for same to be expressly pleaded with particularity and for credible evidence of same to be led at the hearing – Effect of failure thereto
PRACTICE AND PROCEDURE – EVIDENCE:- Standard of Proof – Civil cases – Whether the standard of proof required in civil matters is on the balance of probabilities or preponderance of evidence
PRACTICE AND PROCEDURE – EVIDENCE – VISIT TO THE LOCUS IN QUO: Power of a court to visit the locus in quo – Basis in Section 77(d) (ii) of the Evidence Act – Whether Court may suo motu decide to visit the locus in quo with a view to clearing any doubts or ambiguities that may arise in the evidence led or to resolve any conflict in the evidence as regards physical features – Whether such visits should preferably be on the application of one or both of the parties concerned
MAIN JUDGMENT
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Ekiti State High Court, sitting at Ado-Ekiti in Suit No: HAD/54/2003 delivered on the 3rd day of December, 2007. The Appellant herein was defendant at the lower court in a suit filed against him by the Respondent (as plaintiff) in which the Respondent sought for a declaration and an injunctive relief pertaining to some buildings on a piece of land situate, lying and being at plot 7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti.
The Respondent’s case at the trial court is that, she bought a plot of land from the Appellant sometimes in 1977 at a price of Three Hundred Naira (N300:00) wherein a purchase receipt was issued to her by the Appellant. That she then carried out a survey of the land and later obtained a building plan in 1982 and that after she obtained the building approval, she erected a bungalow of 2 flats of 4 bedrooms each, one of which she let out to tenants, while she and her children occupied the other. It is also her case that there was political upheaval in the old Ondo State in 1983 in which the Appellant was adversely affected as his house was burnt, so she invited him to live with her, but her house was also burnt. That she then ran to her parents in Ibadan who assisted her to reconstruct the burnt house. That she then permitted the Appellant to put tenants in the house and to collect the rent. She later demanded from the Appellant that the houses be returned to her but the Appellant refused to do so, claiming the houses to be his own. It is under that circumstances that she took out a writ of summons against the Appellant before the lower court. The reliefs she claimed before the trial court are as stated in paragraph 8 of the Amended Statement of Claim. They are:
“Whereof the Plaintiff claims against the Defendant as follows:
(i) A declaration that she is the bonafide owner of the bungalow building comprising of two flats, each of four bedrooms, situate, lying and being at Plot No.7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti, located on the plot of land which the said Plaintiff purchased from the Defendant as evidenced by the Defendant’s purchase receipt dated the 7th day of September, 1977.
(ii) An Order of this Honourable Court directing that the Defendant should desist forthwith from collecting rent from the tenants of the said plaintiff’s house, situate, lying and being at Plot No. 7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti, the standing order of the Plaintiff to the Defendant to that effect, contained in their agreement dated the 5th of June, 1986, having terminated on Tuesday, the 3rd day of June, 2003.
(iii) An Order of Perpetual Injunction restraining the said Defendant, his servants, agents and privies from further entering upon the premises or doing anything whatsoever in the house without the authority, consent or approval of the said plaintiff.
The Appellant as Defendant at the lower court filed an Amended Statement of Defence dated the 9th day of October, 2006 wherein he denied the Plaintiff/Respondent’s claim and urged the court to dismiss the claim as being frivolous, gold digging, vexatious, speculative and an abuse of court process. The Respondent did not file any Reply to the Statement of defence.
At the trial at the lower court, the Plaintiff testified and tendered two exhibits marked as Exhibits 1 and 2 respectively. They are a purchase receipt from the Olora Chieftaincy Family in respect of Plot 7A, Block R at Olora Family Layout and undertaking from Chief Joel Ehinafe Babatola of New Ora House, Opopogboro, Ado-Ekiti. She did not call any other witness. The Defendant also testified and tendered the Olora Family Layout Plan and a receipt which were marked for identification purposes only. He also called two other witnesses who testified as P.W.2 and P.W.3. At the close of evidence, counsel on both sides addressed the court, and in a considered judgment delivered on the 3rd day of December, 2007, the learned trial Judge I.O Akeju, J (as he then was) gave judgment in favour of the Plaintiff now Respondent, and granted all the reliefs sought by her. The Defendant (now Appellant) is dissatisfied with the judgment of the lower court and have now filed this appeal seeking that the said judgment be set aside. The Notice of Appeal as contained in pages 96 – 101 of the Record of Appeal is dated and filed the 27th of December, 2007.
The Grounds of Appeal and the particulars in support thereof are contained in the said Notice of Appeal. It consists of six (6) Grounds of Appeal. The said Grounds of Appeal without their particulars are herein under reproduced:
- That (sic) learned trial judge erred in law when the identity of the subject matter was not ascertained.
- The learned trial judge erred in law in not considering the submission of counsel to the Appellant on the fact that the Plaintiff did not call some material witnesses which is fatal to plaintiff’s case.
- The learned trial judge erred in law in given (sic) judgment to the Plaintiff in a declaratory action which put heavy burden of proof on the plaintiff which Plaintiff has not discharged as expected in a declaratory judgment.
- The learned trial judge erred in law in relying heavily on Exhibit 2 to give judgment to the Plaintiff where there are evidence to show that the document is not reliable.
- The learned trial judge erred in law when he held that objection to Exhibit 2 ought to have been proved beyond reasonable doubt as envisage(sic) under the criminal procedure Act by providing particulars of objection.
- The learned trial judge erred in law in not dismissing the claim of the Plaintiff on balance of probability.
In obedience to the Rules and Practice of this Court, the Appellant filed a Brief of Argument dated the 22nd December, 2008 and filed the 30th December, 2008. By Order of this Court granted the 15/03/2010, the Appellant was given leave to serve the Hearing Notice(s) and all other processes in this matter on the Respondent by substituted means, to wit: by pasting same at the Respondent’s last known address at No.9, Akinyemi Way, Ring Road, Ibadan, Oyo State of Nigeria. However, the Respondent neither put up appearance nor filed any Respondent’s Brief of Argument. Accordingly, on the 6th day of May , 2011, we granted leave to the Appellant to argue the appeal on the Appellant’s Brief in view of the failure of the Respondent to file the Respondent’s Brief of Argument. This order was made pursuant to a Motion on Notice filed by the Appellant dated and filed the 6th day of June, 2009. It was made pursuant to order 17 rules 4(1) and (2) of the Court of Appeal Rules, 2007. It means therefore that this appeal was heard on the Appellant’s Brief alone.
In the Appellant’s Brief of Argument, three (3) issues were distilled for determination from the six(6) Grounds of Appeal as set out in the Notice of Appeal. They are as follows:
- Whether the identity of the subject matter was ascertained before judgment was given to the plaintiff. (Ground 1).
- Whether the Plaintiff has been able to proof her case without calling material witnesses in a declaratory action. (Grounds 2, 3, and 6).
- Whether the learned trial judge was right in relying on Exhibit 2 to give judgment to the Respondent (Grounds 4 and 5).
The appeal was heard on the 21st day of June, 2011. At the hearing, Mr. Owoseni Ajayi of learned counsel who settled the Appellant’s Brief of Argument, adopted the said Brief as his argument in this appeal and urged us to allow the appeal.
Now, arguing the first issue which is whether the identity of the subject matter was ascertained before judgment was given to the plaintiff, learned counsel for the Appellant contended that the learned trial judge erred in law when he gave judgment to the Respondent, when it is evident from the pleadings and evidence led by both parties that there are two conflicting locations of the land where the building in dispute is located. That the Respondent insisted that the building(s) she claims is located at Plot 7A, Block R, Olora Layout and consists of four (4) bedrooms each at Block 7, Plot R of the same Layout. That it is therefore clear from the pleadings and evidence led by both parties, that there are conflicts not only on the place the houses are located, but also on the type of structure erected thereon which is being claimed by the Respondent. Learned counsel then submitted that, based on the conflicting claims, the learned trial judge ought to have visited the disputed land to ascertain this vital issue before giving judgment to the Respondent.
It is therefore submitted by learned counsel for the Appellant that, in a land matter of this nature, the identity of the land must be clear, unambiguous and ascertainable. The case of OLUWOLE V ABUBAKAR (2004) 10 N.W.L.R (PT.882) P.549 at P.555 was cited in support. That when there is doubt as to the veracity of the testimony of witnesses on the physical evidence located within the jurisdiction of the court, it will be sufficient reason for the court to cause a visit to the locus in quo. See also ADENIKAN V ASHABI (2004) 2 N.W.L.R. P.857 at PP.407 – 408. PARAS H – A. Learned counsel further submitted that the learned trial judge in the circumstances, ought to have given judgment against the Respondent for failure to properly identify the subject matter she claims as the ambiguity surrounding the subject matter is now creating problem of execution of the judgment obtained by the Respondent.
The law is now settled that, in civil cases, the ultimate burden of establishing a case is as disclosed in the pleadings. The burden is therefore, on the person who would fail, if upon the pleadings filed, no evidence is led thereon on either side. In other words, the general burden of proof is upon the party, whether plaintiff or defendant who asserts the affirmative of the issue. This legal burden is fixed by the pleadings and is settled as a matter of law, and remains unchanged throughout the trial exactly where the pleadings place it. lt never shifts in anyway. It means that it is fixed by the pleadings before evidence is gone into upon the party against whom the judgment of the court would go, if no further evidence were adduced. Generally, the burden of proof is fixed on the plaintiff who seeks the relief to prove that he is entitled in law and in fact to such relief he claims. See Sections 135, 136 and 137 of the Evidence Act and the cases of MADUMMA V. JAMBO (2001) 15 N.W.L.R (PT.736) P.461 at P.475: JACK V. WHYTE (2001) 6 N.W.L.R (PT.709) P.226 at P.272: OKENE V. ORIANWO (1998) 9 N.W.L.R (Pt.566) P.408 at P.440 and NIGERIAN MARITIME SERVICES V. ONISESIN (1998) 2 N.W.L.R (PT.538) P.446.
Thus, if the Plaintiff fails to lead evidence in proof of his claim, on the standard required by law, the court must find that he has failed to prove his case and therefore find against him. The standard of proof required in civil matters is on the balance of probabilities or preponderance of evidence.
In the instant case, the claim of the Respondent as contained in the Amended Statement of claims are three. For the purposes of the issue under consideration, the relevant claim is that as contained in paragraph 8(i) of the Amended Statement of claim which is a claim for a declaration. Reliefs 8(ii) and (iii), in my view, flow from claim 8(i). lt would mean therefore that relief 8(i) is the principal relief claimed by the Respondent, as if it fails, the other reliefs would also not sail through.
Now, based on the law on the burden of proof as earlier stated, a party claiming a declaratory relief has the burden pursuant to Sections 135, 136, and 137 of the Evidence Act to prove his own case. It therefore means that, where a party claims for a declaratory relief or right, it behoves on him to satisfy the court by the evidence adduced by him, that he is entiled to the declaration. In other words, a party who seeks a declaratory relief or judgment has the onus to plead and lead credible evidence as will entitle him to the said declaration. This he must do by leading credible evidence led by him and/or his witnesses that he is entitled to the declaration of title sought. This is because, where a party makes a claim for declaration of title to land, he must succeed on the strength of the evidence adduced by him and not on the weakness of the defendant’s case. lt would not be granted, even on admission by his adversary, where he has failed to adduce credible evidence as would move the court to exercise its discretion in his favour. See ORJI V. EMOVO (1991) 1 N.W.L.R. (PT.168) P.476 at PP.487 – 488, OKEDARA V. ADEBARA (1994) 6 NWLR (PT.349) P.157; ONU V. AGU (1996) 5 NWLR (PT.451) P.652, at P.670, BELLO V. EWEKA (1981) 1 S.C. P. 509 at p.527; NWOKOLO V. UKEGBU (1997) 4 NWLR (PT.500) P.436 at PP.446 – 489; JIMBA V. A.P. (NIG.) LTD. (1998) 13 N.W.L.R. (PT.581) P. 273 at P.284; A.G. FEDERATION V. AJAYI (2000) 12 N.W.L.R. (PT.682) P.509 at P.527; MAJA V. SAMOURIS (2002) 7 N.W.L.R. (PT.765) P.78 at P.101 and EZEOKONKWO V. OKEKE (2002) 10 N.W.L.R. (PT.777) P.1 at P.29
The burden of leading such evidence as I stated earlier, is discharged upon preponderance of evidence or balance of probabilities.
In determining the issue, the trial court will start by considering the evidence led by the plaintiff, so as to see whether the plaintiff has led credible evidence which is satisfactory. lf the evidence adduced by the plaintiff is unsatisfactory, it would then mean that he has not made out a prima facie case, in which case, the trial court does not have to go into or consider the case of the defendant. In such a circumstance, the trial court will withhold his discretion and dismiss the plaintiff’s claim. See SANISU V AMEYOGUN (1992) 4 N.W.L.R. (PT.237) P.527; DURU V. NWOSU (1989) 4 N.W.L.R. (PT.113) P.24: OYEFESO V COKER (1999) 1 N.WL.R (PT.588) P. 654 at P.660 and AGU V. NNADI (1999) 2 N.W.L.R (PT.589) P.131 at P.142.
It is the law that, in an action for declaration of title to land, the first duty of a claimant is to show the exact and precise identity of the land on which he hinges his claim. It has thus been established by the Supreme Court in a plethora of cases, that in a claim for declaration of title to land the plaintiff/claimant must produce sufficient credible evidence which ascertains the definite and precise land he claims. Accordingly, where the evidence led as to the identity of the land claimed is scanty or contradictory or inconclusive, the declaration sought will be refused for lack of certainty of the identity of the land claimed or the subject matter. See ARABE V ASANLU (1980) 5 – 7 S.C. P.78: FATUADE V ONWOAMANAM (1990) 2 NWLR (PT.132) P.322: MABAIKU ONOTAIRE & ORS V BINITE ONOKPASA (1984) 12 S.C. P.19: TEMILE V AWANI (2001) 12 N.W.L.R (PT.728) P.726: HAYAKI V DOGARA (1993) 8 N.W.L.R (PT.313) P.586 and UDECHUKWU V. EZEMUO (2009) 14 N.W.L.R. (PT.1162) P.525. See also HENSHAW V. EFFANGA (2009) 11 N.W.L.R. (PT.1151) P.65 and EKPEMUPOLO V. EDREMODA (2009) 8 N.W.L.R. (PT.1142) P.166.
It is however, only where the defendant has made the issue of identity of the land in issue in his statement of defence, that the necessity would arise for the claimant to lead evidence on the identity of the land which he claims or become an issue at the trial. In other words, the identity of the land in dispute will be in issue if, and only if, the defendant in his Statement of Defence makes it one, by disputing either the area or the size or the location or the features indicated by the Plaintiff in his Statement of Claim. See NWOGO V. NJOKU (1990) 3 NWLR (PT.140) P.570.
The Plaintiff can succeed in proving the identity of the land by adducing evidence which is such that it ascertains the land in dispute without any doubt whatsoever. Such evidence must be of such quality that the description of the land in dispute is so clear that it leaves neither the court nor the defendant in any doubt as to the specific area claimed, in the sense that, from the description given by the plaintiff, a Surveyor can produce a plan showing accurately the land in dispute. See EZEUDU V. OBIJAGUN (1986) 2 N.W.L.R (PT.21) P.208 and OKEDARE V OBA ADEBARA & ORS (1994) 6 N.W.L.R (PT.349) P.157. A better way of proving the identity and extent of the land claimed is for the plaintiff to file or tender a survey plan showing or reflecting clearly the boundaries, location or extent of the land he claims. The plan must show clearly the dimensions of the land, the location of the land, the boundaries of the land and other salient or clear features appertaining the land in dispute. See OLASANMI v OSHASONA (1992) 6 NWLR (PT.245) P.22: OKEKE V NWOKE (1991) 8 N.W.L.R. (PT.209) P.317: UDEZE V ORAZULIKE TRADING COMPANY LTD. (2002) 3 N.W.L.R (PT.648) P.203 and OLOSHE V OGUBODE (2002) 1 NWLR (PT.749) P.611. I wish to reiterate here that, where the parties know the quality and quantity of the land in dispute, a plan will not be necessary. See ATOLOGBE v SHORUN (1985) 4 S.C (PT.1) P.250: OBIJAH V OBIJAH (1991) 6 S.C.N.J. P.156 and NOR V TARKA’A (1998) 4 N.W.L.R (PT.544) P.130.
In the instant case, the Respondent pleaded at paragraphs 2 and 3 of the Amended statement of claim as follows:
“2. That plot of land on which the bungalow building which forms the subject matter of this suit is erected belongs to the plaintiff who bought same from the Defendant’s family, (Olora chieftaincy family), as evidenced by a purchase receipt issued in favour of the Plaintiff by the said Defendant in his capacity as a representative of the family and dated the 7th day of September, 1977. The original copy of the said purchase receipt will be founded on at the hearing of this suit.
- By the said receipt referred to in paragraph 2 herein, the Plaintiff purchased a parcel of \land for a consideration of three Hundred Naira (N300:00) on which land the said plaintiff erected a bungalow building comprising flats of four bedrooms. At the hearing of this suit, the said plaintiff will rely on the building’s approved plan dated the 22nd day of October, 1982. The said building plan is herein pleaded and will be founded on at the hearing of this suit.”
The Respondent then pleaded at paragraph 8(i) as follows:
“(i) A declaration that she is the bonafide owner of the bungalow building comprising of two flats, each of four bedrooms, situate, lying and being at Plot No.7A, Block R, Olora Layout, along Opopogboro, Ado-Ekiti, located on the plot of land which the said plaintiff purchased from the Defendant as evidenced by the Defendant’s purchase receipt dated the 7th day of September, 1977.”
The import of the above stated averments of the Respondent is that, she had built two bungalows consisting of four bedrooms each, on the plot she bought from the Olora Chieftaincy family, and that the land is No.7A, Block R, Situate and being on the Olora Layout, along Opopogboro, Ado-Ekiti.
In answer to the above stated pleadings of the Respondent, the Appellant pleaded at paragraphs 5, 6, and 64 of the Amended Statement of defence that:
“5. The defendant aver that the bungalow mentioned in paragraph 2 and 3 of the statement of claim is not erected on plot 8A, Block R of Olora Layout but on plot No.7, Block R of Olora family layout. The Olora family layout registered as ECAPA 3499, Ado-Ekiti is hereby pleaded.
- Further to paragraphs above the defendant aver that no plot of rand was at anytime sold to the Plaintiff at plot 7 Block R and the bungalow building thereof absolutely belong to the defendant.
6A. The plaintiff bought about 2 acres of vacant land at the northern part of Block R beyond Plot 7 for N4, 000:00 and a receipt dated 3/6/77 given and evidence shall be led to show that the plaintiff with the aid of the Defendant has sold them to various people. Necessary documentary evidence of sales are hereby pleaded.”
At the hearing, the Respondent testified to the effect that the subject matter of her claim is a bungalow of 2 flats of 4 bedrooms each which she erected on the land she bought from the Olora Chieftaincy family land. She further stated that the building is on Plot 7 A, Block R, Olora family layout. She had earlier stated at page 65 lines 4 – 6 of the Record of Appeal that, the land is located at Opopogboro, Ado-Ekiti, and that it was purchased at N300:00 and known as Block R, Plot 7A on Olora Chieftaincy family Layout. Though she pleaded the building plan, but it was only tendered for identification. It is trite law that only documents tendered as Exhibits are evidence before the court. The import is that, the said building plan is not in evidence and therefore not evidence which the court can act on or utilize in the determination of the matter. Similarly, no site or survey plan was pleaded nor tendered by the Respondent. The only document tendered in proof which tends to show the identity of the land is the purchase Receipt. It is in evidence as Exhibit 1. I am of the view that Exhibit 1 does not describe or prove the identity of the land with the particularity and certainly the law requires. lt does not show the area or extent of the land in dispute with accuracy. lf anything, exhibit 1 tendered by the Respondent only show that the Respondent bought plot 7A, Block R in the Olora chieftaincy layout. In that respect, I am of the view that the Respondent ought to have tendered the Olora chieftaincy family Layout and lead evidence on it showing with certainty the location and size or extent, and also the features on the plot.
I make the above findings in view of the pleadings of the Appellant and the evidence led thereon. The Appellant testified and stated as follows, on page 69 lines 10 – 19 of the Record of Appeal:
“I know the building on plot 7, Block R of Olora Layout, Ado-Ekiti. The building is a duplex bungalow. The claim of the plaintiff to the ownership of that building is false because she had said the building is on Plot 7A instead of plot 7. The plaintiff bought the extension of plot 7 for N4,000:00 but the total she bought was 2 acres of vacant land. This was the one that included plot 7A. The plaintiff sold the whole two acres including plot 7A which she sold for N800:00. There was a receipt issue in respect of the sale which I issued to Ramota Gidado.”
I understand the Appellant here, to mean that the Respondent bought two acres of land at the northern extension of plot 7 and which land included Plot 7A, but that the Respondent had sold same including plot 7A. He therefore stated that the building which is a duplex was built on plot 7 and that it belong to him. The Appellant had therefore put the identity of the said Plot 7A claimed by the Respondent in issue. The trial court therefore had a duty to resolve same. As I stated earlier, the Respondent had a duty to call credible witnesses who would give evidence on the identity of the land, which will leave the Court or the Appellant in no doubt as to the land on which the Respondent claimed she built the structures the subject matter of her claim before the court. This she could do by calling witnesses to the transaction between her and the Appellant, and or those who witnessed when the Appellant put her on the land. This she failed to do as no single witness to the transaction was called by her considering the fact that the pleading tend to show that the land was bought from the Olora Chieftaincy family with the Appellant as the head. In the alternative, she could tender a survey plan of the Olora Chieftaincy family layout, showing the location and extent of the land she claims to have bought from the family. Alas, she failed to embark on any of the two ways of discharging the burden on her to prove the identity of the land she claimed.
While I agree with the contention of the Appellant that the trial court should have visited the disputed land on which the building claimed was erected, in order to ascertain the issue of identity, I am of the view that the decision whether to visit the locus in quo is at the discretion of the trial Judge.
The power of a court to visit the locus in quo is derived from Section 77(d) (ii) of the Evidence Act. Though, the Court may suo motu decide to visit the locus in quo with a view to clearing any doubts or ambiguities that may arise in the evidence led or to resolve any conflict in the evidence as regards physical features, such visits should preferably be on the application of one or both of the parties concerned. See IPINLAYE II V. OLUKOTUN (1996) 6 K.L,R (PT.42) P.1000 at P.1020. I therefore agree with the Appellant that the learned trial judge had a duty to visit the locus in quo in view of the conflict as to the existence or non-existence of Plot 7A, Block R, Olora Chieftaincy family Layout. If a visit to the locus in quo had been embarked upon, it would have assisted the trial court in resolving the conflict as to the accuracy of the evidence led on the identity of the said land. It is not surprising therefore that the trial court did not make any specific finding on the identity of the land on which the building(s) claimed by the Respondent were built.
In conclusion on this issue, it is my finding and I do hold that the Respondent failed, from the evidence on the record, to prove with certainty the identity of the subject matter of her claim before the trial court. Her claim before the lower court was therefore liable to be dismissed. See UKAEGBU V NWOLOLO (2009) 3 NWLR (PT.1127) P.194. Accordingly, I resolve this issue in favour of the Appellant.
The second issue which arises for the determination in this appeal is:
Whether the Plaintiff has been able to prove her case without calling material witnesses in a declaratory action.
In arguing this issue, learned counsel for the Appellant submitted that, from the evidence adduced by the Respondent before the trial court, there is no evidence that the house in dispute was built by her. That, the Surveyor, Bricklayer and Carpenter who supposedly worked on the building were not called to testify. That apart from that the parents whom the Respondent alleged gave her money to rebuild the house when it was burnt were not called. It is therefore submitted by the Appellant that failure to call those witnesses does not qualify the Respondent to get the declaration of title sought. The case of ALAO V AKANO (2005) FWLR (PT.264) P.799 at P.808 was relied on to urge us to hold that non-calling of the Respondent’s parents and other vital witnesses to testify is fatal to her case. We were further urged to invoke Section 149(d) of the Evidence Act against the Respondent. The case of S.C.C (NIG) LTD. V. ELEMADU (2005) 7 NWLR (PT.923) P.28 at P.66. PARAS. C – H was further cited in support.
Learned counsel for the Appellant further urged us to hold that the fact that the Respondent did not file any reply to the Appellant’s Statement of Defence on the fact that the land in Plot 7A Block R has been sold to Mrs. Gidado, is an admission by the Respondent that the said piece of land had been sold. The case of EJIMADU V DELTA (2007) 13 NWLR (PT.1050) P.96 at P.110. PARAS.E – F was cited in support.
I begin a resolution of this issue by stating that Section 149(d) of the Evidence Act referred to by learned counsel for the Appellant operates against a party to the proceeding who withholds evidence on an issue. It is not the failure to call a particular piece of evidence on the issue, but it is the failure to call evidence on that issue.
Accordingly, where a party has called evidence on an issue, failure to call a particular piece of evidence will not raise the presumption where the party has called other evidence. See AKINYEMI V THE STATE (1999) 6 NWLR (PT.607) P.449: EGBEYOMI V. THE STATE (2000) 4 NWLR (PT.654) P.559. Before a trial court can hold that a party has withheld evidence, it must be shown that the evidence exists and that it could be produced by the application of due human diligence and knowledge, that it was not produced in Court, it was withheld by the party who could have produced it. The presumption will however not arise if it appears or has been shown to the court that every effort has been made to produce the evidence without success or the failure to produce the evidence has been explained. See MAIGORO V. BASHIR (2000) 11 NWLR (PT.679) P.453.OBORO V R.S.H & P.D.A (1997) 9 NWLR (PT.521) P.425 and N.S.C (NIG) LTD V INNIS – PALMER (1992) 1 NWLR (PT.218) P.422. However, the Supreme Court has in a plethora of cases held that failure to call a particular witness does not mean failure to call evidence. See H.M.S LTD v FIRST BANK (1991) 1 NWLR (PT.167) p.290 at P.308 PARAS.C – D: ONWUJUBA V OBIENU (1991) 4 NWLR (PT.183) P.16 at PP.28 – 29. PARAS B – D: ONIYA V OKOLIKO (1992) 7 NWLR (PT.254) P.500 at P.507 and ESIKA V MEDOLU (1997) 2 NWLR (PT.4850 P.54 at P.72. Thus, what is required for the presumption to apply is the failure to call evidence and not the failure to call a witness.
In the instant case, it would appear to me that learned counsel for the Appellant confused failure to call certain witnesses with failure to call evidence. The substance of his complaint as appears in his Brief at pages 4 – 5, paragraphs 5.02 is that the Respondent failed to call her parents and children to testify. He submitted thus:
“I urge the Honourable Court to hold that if the Respondent has(sic) called any of his parents and children to testify, such a testimony should be presumed to be against the Appellant having regard to section 149(d) of the Evidence Act. Evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. See S.C.C. (NIG.) LTD. V. ELEMADU (2005) 7 NWLR, PART 923. PAGE 28 at 66. PARAGRAPHS C – H.”
It is clear therefore that the complaint of the Appellant is that certain witnesses had not been called and not that the evidence which the Respondent could have given was not adduced. lt is trite taw that a party is not under any obligation to call a particular witness, so long as he can prove his case without calling a particular witness. It is therefore apparent that Section 149(d) of the Evidence Act does not apply in the circumstances of this case.
As a corollary to the above findings even if the contention of the Appellant is that the Respondent failed to call some material witnesses, it is the law that, a party to a civil case, is not bound to call a particular witness or witnesses, if he can prove his case without calling that particular witness. It is for the party who perceives that a particular witness is vital or material to his case on a particular issue, that has the duty to call such witness. Accordingly, it is not for the adversary or even the court to dictate to such a party which witness to field in support of his case. This is because, it is within the exclusive preserve of a party or his counsel, after weighing all the facts and circumstances of his case, to decide on the person or persons he will field as witnesses in support of his case. Such a witness may be the party himself or some other person, without any other confirmation of the testimony of such witness by the testimony of another witness or other evidence. See ADESINA V AFOLABI (2001) 31 W.R.N. P. 159: BELLO V KASSIM (1969) N.M.L.R. P.149. ESIKA V MEDOLU (1997) 2 NWLR (PT.485) P.54. OGOLO V OGOLO (1997) 7 NWLR (PT.512) P.310: LAWAL OSULA V LAWAL-OSULA (1993) 2 NWLR (PT.274) P.158 at P.179 and OLORI MOTORS & Co LTD V U.B.N LTD (1998) 6 N.W.L.R (PT.554) P.493. A party therefore has the right to pick and choose which witness to call.
The stated position of the law as stated above also has support in Section 179 (1) of the Evidence Act which stipulates that, except as provided in this Section, no particular number of witnesses shall in any case be required for the proof of any fact. Generally, in civil cases, all that is required is for a party to call such evidence to prove the averments in the pleadings. In proving his case therefore, a party in a civil case has the unfettered discretion to decide the witnesses he will call and he is not bound to call a particular witness or a legion of witnesses. Thus, if the testimony of a single witness satisfies the court, the court will undoubtedly act on such evidence. However, where the court is not satisfied with such evidence, it will certainly be fatal to such a party. lt is therefore not the quantity but the quality of the evidence garnered from the testimony of such a single witness or even a host of witnesses that counts towards the success or failure of a party in a particular matter. See WUAM & ORS V. AKO (1999) 5 NWLR (PT.601) P.150: A.G: KWARA STATE V ALAO (2000) 9 NWLR (PT.671) P.84 and AGIH V EJINKEONYE & BROTHERS LTD & ANOR (1992) 3 NWLR (PT.228) P.200 at PP.211 – 212 Per Mustapha, J.C.A (as he then was).
Now, I also understand the Appellant to further ask in this issue, whether the Respondent’s case has been proved on her sole testimony and evidence produced or adduced by her at the trial court. By this issue, it is clear that the Appellant questions the findings and conclusions of the trial court on the evidence adduced before it.
It is now settled law that, it is the duty of the trial court who had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial.
An Appellate court does not enjoy that singular opportunity of seeing and hearing the witnesses, and will therefore be reluctant to interfere with the findings of fact made by the trial court, especially where such findings touch on the credibility of witnesses. Appellate courts have therefore been enjoined to interfere, only where the trial court failed in his primary duty to properly evaluate and ascribe probative value to the evidence led at the trial. In doing that, the Appellate court will interfere where there are special circumstances to warrant or justify the interference. Such a special circumstance may arise where upon a perusal of the record, the appellate court finds that the trial court failed to properly evaluate the evidence presented before it and which finding led it to reach a perverse decision or occasioned a miscarriage of justice .
A perverse decision is one where the trial court took into account extraneous matters or where it shut its eyes to cogent facts before it. It will also interfere where the trial court misapplied the principles of law to the proved facts before it. In doing that, the appellate court will only look at the cold facts as presented on the record. Generally, however, appellate courts are slow and circumspect in reversing findings of a trial court, unless such findings are undoubtedly and satisfactorily shown not to be supported by the evidence on record. See OKONKWO V. OKONKWO (2010) 14 NWLR (PT.1213) P.228: OGHIRI V. N.A.O.C. LTD. (2010) 14 NWLR (PT.1213) P.208, ALI V. SALIHU (2011) 1 NWLR (PT.1228) P.227 and NIKAGBATSE V. OPUYE (2010) 14 NWLR (PT.1213) P.50.
The burden is on the party who complains about the findings of facts and evaluation of evidence made by a trial court to show from the evidence on the printed record how those findings are wrong. In other words, he has to demonstrate that if the learned trial judge had not found as he did, the result would have been different.
In the instant case, the complaint of the Appellant is that the Respondent did not adduce any evidence to show that the house in dispute was renovated by her. I agree with the contention of the learned counsel for the Appellant that, apart from the ipse dixit of the Respondent, she had nothing to show the trial court that she indeed renovated the house in dispute. The learned trial judge did not make any finding on this vital issue. The Respondent only stated that she was assisted in reconstructing the house by her parents. However, none of her parents was called to confirm her assertion and no other witness, such as the Carpenter, Mason or such other person whom she employed in the reconstruction process was called to testify and no explanation was given as to why she was unable to call any of those witnesses. On the other hand, the Appellant called D.W.1 and 2 who confirmed that they were employed by the Appellant to work in reconstructing the house which was burnt in 1983. If is my finding therefore that there is no satisfactory evidence on the record to show that it was the Appellant that reconstructed the house she now claims to be hers.
I had earlier held while considering issue one, that the Respondent did not prove satisfactorily the identity of the land upon which the subject matter of this case is erected. Her claim to the land is hinged on the purchase receipt tendered in evidence as Exhibit 1. I have carefully perused the record of appeal. The finding of the learned trial judge on the said receipt is at page 92 of the record of appeal. Therein, the learned trial judge held thus:
“The plaintiff asserted that she bought the land known as Plot 7A, Block R, Olora Layout, Ado- Ekiti from the defendant and she produced a receipt to that effect which is Exhibit 1 in this proceedings. This fact of the purchase of that piece of land was not disputed by the defendant who contended that the defendant had sold that land to one Ramota Gidado. This Ramota Gidado testified as the D.W.2 in this suit and said she bought land from the defendant. Despite the adjournment sought by the defendant to produce the receipts this D.W.2 claimed to have obtained for the purchase of that Plot was not tendered.”
The learned trial judge then concluded that by Sections 136 and 137 of the Evidence Act, the burden was on the Appellant to prove that Plot 7A of Block R, had been sold to Ramota. He was therefore satisfied that the Plaintiff purchased Plot 7 A, Block R of Olora Layout.
It should be noted that in a declaratory action, the burden is on the claimant to lead credible evidence to show that he is entitled to the declaration sought. He has to succeed on the strength of his own case, and not on the weakness of the defence, even where there is an admission by the defendant. This is because, declaratory judgments are not awarded on admissions but on the evidence of the claimant. In other words, courts do not grant declaratory reliefs either in default of defence or admissions, without hearing evidence and being satisfied by such evidence. This position is an exception to the rule that facts admitted need no proof. See NKWOGHA V OFURUM (2002) 5 NWLR (PT.761) P.506 at PP.524 – 525: MOTUNWASE V SORUNGBE (1988) 4 NWLR (PT.92) P.90: SALAU & ORS V PARAKOYI (2001) 1 NWLR (PT.695) P.446 at P.456 Per Galadima; J.C.A (as he then was); BELLO V EWEKA (1981) 1 S.C. P.107: A.G FEDERATION V AJAYI (2000) 12 NWLR (PT.682) P.509 and MAJA V SAMOURIS (2002) 7 NWLR (PT.765) P.78 at P.101. It therefore follows that because the Appellant had admitted that the signature on Exhibit 1 is his signature, did not relief the Respondent of the duty to prove that she had indeed bought the particular land in dispute. This is more so in view of the averment of the Appellant in his Statement of Defence that the land the Respondent bought was a two acres vacant land which included the Plot 7A, Block R, indicated in Exhibit 1, and that the Respondent had sold same to a certain Mrs. Ramota Gidado. In that circumstances, it is my view that, it was therefore incumbent on the Respondent to have called evidence, apart from her ipse dixit, to show the extent and location of the land she bought from the Appellant. Furthermore, she claimed to have bought the land in 1977 when her former husband was alive and in his presence. She did not call any single person who witnessed the sale of the land in dispute to her by the Olora Chieftaincy family of which the Defendant is head. She did not also call any person who witnessed when she was put into possession of the land she bought from the Olora Chieftaincy family on which she build the property she now claims. She did not also tender the building plan she said she made, and which she pleaded in her Amended Statement of Claim. Failure to call those witnesses is in my view fatal to her claim. Exhibit 1 also does not qualify as an instrument which has conferred title on the Respondent. At best, it is evidence showing that some other transaction has taken place, and that some other thing will be done to confer a legal title or right over the land stated therein on the Respondent. Exhibit 1 on its own does not confer title over the said land on the Respondent. See GBINIJIE V ODJI (2011) 4 NWLR (PT.1236) P.103 at P.129. PARAS. A- C. I accordingly hold that it was erroneous for the learned trial judge to conclude that the receipt (Exhibit 1) proved conclusively the title of the Respondent over the land in dispute between the Appellant and the Respondent.
Now, learned counsel for the Appellant had argued that, the Respondent did not file any reply to the Appellant’s Statement of Defence, wherein he had pleaded that the land, that is, Plot 7A, Block R, had been sold to Mrs. Ramota Gidado, and has therefore admitted that fact. He then relied on the case of EJIMADU V DELTA (2007) 13 NWLR (PT.1050) P.96 at P.110. PARAS. E – F to urge us to hold that, failure to file a reply to that averment of the Appellant in the Statement of Defence amounts to an admission that the land had been sold.
The rule of practice is that, where no counter claim has been filed, a reply is generally unnecessary, if the sole purpose of the reply is to deny allegations contained in the Statement of Defence. Thus, if no counter claim or new issues are raised in the Statement of Defence, there is an implied joinder of issues on that defence, and it is therefore deemed that the material allegations of fact raised in the Statement of Defence are denied. lt accordingly means that, it is generally not necessary for a plaintiff to file a reply if his only purpose or intention in doing so is to deny any general allegation of fact that the defendant may have made in the Statement of Defence. See BAKARE & ANOR V IBRAHIM (1973) 6 S.C. P.205: OBOT V C.B.N (1993) 8 NWLR (PT.310) P.140: AKEREDOLU & ORS V AKINYEMI & ORS (1989) 3 NWLR (PT.108) P.164: SPAScO VEHICLE & PLANT HIRE CO. V ALRAINE (NIG) LTD (1995) 1 NWLR (PT.416) P.655 at P.670 and IGWE V A.C.B PLC (1999) 6 NWLR (PT. 6050 P.1 at P.5.
It is however the law that, if by the nature of the Statement of Defence and the averments contained therein, the plaintiff intends to lead material evidence in rebuttal of the allegation raised in the Statement of Defence, or he intends to raise new issues not covered by his pleading in the Statement of Claim or whereby the statement of defence already filed, it will be prudent and desirable in such circumstance for the Plaintiff to file a reply in answer to the new issue raised. See MOBIL V ASUAH (2001) 16 NWLR (PT.740) P.723 at PP.751 – 752 and SPASCO VEHICLE & PLANT HIRE GO. V ALRAINE (NIG) LTD (Supra) at p.670.
In the instant case, the Appellant had pleaded at paragraph 6A of the Statement of Defence that the Respondent bought about two acres of vacant land at the northern part of Block R, beyond Plot 7 and a receipt dated 3/6/77 given and evidence shall be led to show that the Plaintiff with the aid of the Defendant has sold them to various people. The necessary documentary evidence of such sales were also pleaded by the Appellant (defendant). Nowhere in the entire statement of Defence did the Appellant plead any sale of the said Plot 7A, Block R, to the said Ramota Gidado. lt was in the testimony of the Appellant in court that the issue of such sale to Ramota Gidado came up. The averment on the issue of sales was general in terms and did not specifically aver any sale to Ramota Gidado. The Respondent was therefore not expected to reply to what he did not know at the time pleadings were closed. The issue of admission that plot 7A, Block R, to Ramota Gidado having not been pleaded by the Appellant in his defence, does not therefore arise.
On the whole, however, it is my finding on this issue (issue two) that the evidence led by the Respondent is not sufficient as to tilt the balance of the scale in her favour and thus cannot on that score entitle her to the declaration of title sought.
Related to issue two (2) is issue three (3) which I now proceed to resolve. That issue is:
Whether the learned trial judge was right in relying on Exhibit 2 in given (sic) judgment to the Respondent.
In respect of this issue, learned counsel for the Appellant contended that, the Appellant denied ever seeing Exhibit 2, both in his Statement of Defence and testimony before the court. That the Appellant had stated his educational qualification and contended that the grammar used in Exhibit 2 is too poor to be his, and that his signature was superimposed on exhibit 2. Learned counsel further contended that, considering that the parties had once lived together as husband and wife, it will be very easy for the Respondent to get the Appellant’s signature. That the Appellant was seeing the document for the first time in court. It is therefore submitted by the Appellant that, in view of the fact that no other witness was called by the Respondent to collaborate the Respondent’s ownership of the house and that the learned trial judge ought to have believed the Appellant in respect of the genuineness of exhibit 2 in the absence of any independent evidence. We were therefore urged to believe the fact that the signature in exhibit 2 was fraudulently attached to the body of the document. That if we so believe, then the document will be without signature and its origin will become dubious, and cannot therefore be relied upon. The case of GARUBA V KWARA INVESTMENT (2005) 4 FWLR (PT.281) P.375 at P.379 was cited in support.
Now, by virtue of Section 138(1) of the Evidence Act, where there is a specific allegation of crime in a pleading so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence, as the case may be, that allegation of crime must be proved beyond reasonable doubt. However, it all depends on the nature or substance of the averments in the pleadings. lt means therefore that, whether the specific allegation of crime can properly be said to be the foundation of a claim or defence, depends on the facts and circumstances of each case. See A.S.E.S.A.V EKWENEM (2009) 13 NWLR (PT.1158) P.410 at PP. 429 – 431. In the instant case, the Appellant pleaded at paragraphs 13 and 14 of the Amended Statement of Defence as follows:
“13. The defendant aver that the stories fabricated in paragraphs 6 and 7 of the Statement of Claim exist in the imagination of the Plaintiff and the Defendant deny the existence of such an agreement dated 6th June, 1936 (sic: 1986).
- In further denial of paragraph 3 of the Statement of Claim the Defendant aver that the approved building plan referred to in the paragraph dated 2/10/82 could not have referred to the bungalow in issue because the actual building plan in respect of the building was among the documents burnt in defendant’s house during 1983 political crisis. In the alternative the Defendant aver that even if such exist in the name of the Plaintiff it must have been a forgery.
It is of course trite law that, forgery is a very serious crime under our Criminal Laws. In that respect, where it is alleged by a party to a civil action, either as the foundation of the claim or defence, it must be proved beyond reasonable doubt. The practice is that for a party to be allowed to produce or lead evidence to establish the crime alleged, he must specifically plead same with detailed particulars of the forgery alleged. In other words, a party who intends to prove forgery as the basis of his claim or defence, must expressly plead same with particularity and lead credible evidence of same at the hearing. lf he is unable to plead the particulars of same, he cannot be allowed to produce evidence of it at the trial. On the other hand, to prove forgery in a civil claim, the party alleging same must at least plead its major ingredients, such as the person who committed the offence and facts which will enable the court to infer the necessary mens rea. A mere loaded, vague and nebulous averment which only leave room for speculation will not suffice. See AIWA V JINADU & ANOR (1992) 4 NWLR (PT.233) P.91 at P.106: GEORGE & ORS V DOMINION FLOUR MILLS (1963) 1 ALL NLR. P.71: USEN V I.B.W.A LTD (1965) 1 ALL N.L.R. P.225: OBASANYA V BABAFEMI (2000) 23 W.R.N. P.30 at P.50: ONAMADE V A.C.B LTD (1997) 1 NWLR (PT.480) P.123: TOR TIV V WOMBO (1996) 9 NWLR (PT.471) P.161 and UKEJE V UKEJE & ANOR (2001) 27 W.R.N. P.142 at PP.157 – 158. See also UDO V ESHIET (1994) 8 NWLR (PT.363) P.483 at 499. Where the forgery has been proved on the standard required by law, the court will not be under any legal duty or obligation to consider the document, which will in the circumstances, at best be considered as worthless and tainted with criminality. See OTTIH V NWANEKWE (1990) 3 NWLR (PT.140) P.550 and OBASI V ONWUKA (1989) 3 NWLR (PT.61) P.364.
In the instant case, it is clear from the pleadings of the Appellant reproduced above, that the allegation of forgery made by the Appellant is not in respect of the agreement pleaded by the Respondent in paragraphs 6 and 7 of the Statement of Claim and tendered in evidence as Exhibit 2. The allegation of forgery made by the Appellant is in respect of the building plan pleaded by the Respondent in paragraph 3 of her Statement of Claim. The Appellant therefore did not plead or allege forgery in respect of the agreement dated 6th June, 1986. He only denied the existence of such an agreement. lt is true that the Appellant, while testifying in court asserted that he knows nothing about exhibit 2 and that his signature there in was forged. lt should be noted that the learned trial judge ought not to have considered the assertion of the Appellant on the issue of forgery raised viva voce at the trial. That piece of evidence was never pleaded by the Appellant and thus should have been considered as going to no issue. The pleading of the Appellant at paragraph 13 of the Statement of Defence cannot be equated with his having pleaded forgery. See OJIBAH V OJIBAH (1991) 5 NWLR (PT.191) P.296 at PP.309 – 310. PARAS. H – E Per Nnaemeka-Agu, J.S.C. Unfortunately, the learned trial judge held in respect of the agreement in exhibit 2 as follows at pages 93 – 94 of the record of appeal:
“The defendant accepted that the signature on that document is his own, but he contended that, that signature was imposed on it, because the English in which it is written is too poor for his level of education. Obviously, the defendant who alleges fraud or misrepresentation, by imposition of signature on exhibits 2 ought to have done more than this mere assertion. He is under the provisions of order 23 Rules 5(1) and (1) of Ondo State Rules of High Court currently applied in Ekiti State required to plead specific or particular facts of that allegation and testify therein which the defendant has failed to do. See ZEIN V GEIDANI (2004} ALL FWLR (PT.237) P.457.”
The learned trial judge then proceeded to hold that since the Appellant had made an allegation of crime in his defence, he had the duty to prove same beyond reasonable doubt.
I had held earlier that the Appellant did not plead any allegation of crime in his Statement of Defence. As wrongly imputed by the learned trial judge the Appellant did not allege any fraud or misinterpretation either. All he did was to deny the existence of the said agreement (Exhibit 2). In his testimony before the court, he told the court that the English language used in the document is below the standard expected of him as a graduate of English language. Though he agreed that the signature as contained in the document is his own, but that it was worked (imposed) into the agreement. In other words, that it was cut from somewhere and attached to the document. My view is that, by his pleading in paragraph 13 of the Statement of Defence, the Appellant merely denied the existence of Exhibit 2. Having pleaded that, the Respondent had the duty to prove the existence of that document and that it was duly executed by the Appellant. The statements of the Appellant at the trial, cannot in my view, elevate it to the level of his have alleged commission of any crime against the Respondent as to have cast a burden on him, as done by the learned trial judge to prove same beyond reasonable doubt. The Respondent still had the burden to prove due execution of exhibit 2. The Respondent did not call a single witness who might have witnessed the execution of the document. In that respect, the learned trial judge was left with the sole testimony of the Respondent against that of the Appellant. The Appellant had denied signing or executing the documents. In the absence of any evidence outside the testimony of the Respondent that the Appellant executed same, the document which on the face of it show that it was executed in 1986 and tendered in evidence in 2006, does not qualify for the presumption of due execution under Section 123 of the Evidence Act. See OJIBAH V OJIBAH (Supra) at PP.310 – 311. PARAGRAPHS E – A. In that respect, I hold that the Respondent had failed to establish the genuineness of exhibit 2, and the learned trial judge was in error to have placed the burden on the Appellant to prove an allegation of crime he did not plead. See SAMSON UZOKA V THE STATE (1990) 6 NWLR (PT.159) P.680 at P.686.
Finally, I am of the total and undoubted agreement with learned counsel for the Appellant that, the learned trial judge was wrong to have placed reliance on Exhibit 2 to confer title to the land on the Respondent. The evidence on the record does not support the findings of the learned trial judge in that regard. I therefore resolve this third issue also in favour of the Appellant.
Having resolved all the issues in favour of the Appellant, it is obvious therefore that the appeal has merit. It is accordingly allowed. Consequently, the judgment of the Ekiti State High Court, Ado-Ekiti Division in Suit No: HAD/54/2003 delivered on the 3rd day of December, 2007 is hereby set aside. The Respondent’s claim is accordingly dismissed. I award Fifty Thousand Naira (N50,000:00) in favour of the Appellant.
UWANI MUSA ABBA AJI, J.C.A.:
I have had the benefit of reading before now the lead judgment of my learned brother H.M. Tsammani, JCA, just delivered.
His Lordship has comprehensively considered and satisfactorily resolved all the issues for determination in the appeal. I agree with his Lordship’s reasoning and conclusion that the appeal is meritorious and ought to be allowed which I adopt as mine. I have nothing more to add.
I also allow the appeal. The judgment of the Ekiti State High Court, Ado-Ekiti Division delivered on the 3rd day of December is hereby set aside.
I endorse the consequential order as to costs.
CHIDI NWOAMA UWA, J.C.A.:
I had the privilege of reading in advance the judgment of my learned brother Haruna H. Tsammani, J.C.A. just delivered.
I agree entirely with his reasoning and conclusion arrived at in holding that the appeal has merit and is allowed. The judgment of the learned trial judge delivered on 3rd December, 2007, is also set aside by me. I dismiss the respondent’s claim. I abide by the order made as to costs in the leading judgment.
