IN THE HIGH COURT OF IMO STATE
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
ON THE 21ST DAY OF DECEMBER, 2021
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
SUIT NO.: – HOW/295/2017
BETWEEN
CHIEF GODDY OJINNAKA PLAINTIFF
AND
CHRISTIAN EKE DEFENDANT
(For Himself and as Representing the
Other members of Late Sunday Eke
Family of Umuanu Umuonyeche, Owerri,
Imo State)
JUDGMENT
The Plaintiff commenced this action via a writ of summons dated 10/04/2017 and filed on 19/4/2017 claiming against the Defendant as follows: –
- A DECLARATION that the Plaintiff is the lawful owner entitled to statutory right of occupancy, in and over the piece of land called “Uhu Umuanu” which situates along Amaigbo Street, Owerri Imo State and more particularly delineated in Plan No EC63/75.
- An Order of perpetual injunction restraining the Defendant, his Servants, Agents, Workmen, Privies and or assigns from further trespassing into the Plaintiff’s aforesaid land.
- N50,000,000.00 (Fifty Million Naira) general damages for trespass by the Defendant upon the Plaintiff’s aforesaid land.
- N750,000.00 (Seven Hundred and Fifty Thousand Naira) as cost of this suit.
To prove his case the Plaintiff called 4 (four) witnesses while the Defendant is disproval called 4 (four) witnesses.
Plaintiff’s case
The case of the Plaintiff is that he purchased this land in 1994 from one Mr. Lazarus Iro who in turn purchased the land from the Defendant’s father in 1975. The Plaintiff tendered Power of Attorney with which the said Lazarus Iro purchased from the father of the Defendant. The 3rd witness tendered the dispute survey plan as exhibit A. Through the 4th Witness who is the Plaintiff the following documents were tendered
- The deed between Sunday Eke and Lazarus A Iro dated 12-6-17 is marked Exhibit B
- Statutory Certificate of Occupancy dated 9-2-83 is marked C
- Power of Attorney between Lazarus Azuuwa Iro and Goddy Nduka Ojinnaka is marked Exhibit D
- The two receipts booklet are admitted and marked Exhibits E & E1
Defendant’s case:
The case of the defendant is that his father inherited the land from his ancestors. He continued to farm on the land till 1994. His father did not sale the land to the plaintiff’s predecessors in title -Lazarus Iro. The alleged sale was not witnessed by any of their kinsmen. The document of purchase presented by the Defendant is forged. The father shown to have signed never signed but thumb printed documents in his life time.
At the end of trial, counsel filed and exchanged written addresses. The Defendant formulated the following issues for determination
- Whether there was actual sale of this kind in dispute to late Lazarus Iro as alleged by PW1 via Plaintiff?
- Whether the alleged document, Deed of Conveyance was not made in anticipation of this suit hence its forged nature and circumstances surrounding its execution?
- Whether the alleged Deed of Conveyance given title to Plaintiff abi-initio ought not to have illiterate jurat or verification statement in view of evidence adduced during defence testimony?
- Whether contradictions in evidence in civil matters of Plaintiff witnesses are not resolved in favor of defence?
- Whether the Plaintiff has proved his case to be entitled to the relief sought from the Honorable Court?
- Whether production of title document to land in dispute suffices as conclusive prove of ownership?
- Whether PW1 absence for further cross examination does not invoke section 167 (d) of the evidence act despite the grant of Motion for Recall of PW1?
The defendant argued issues 1 and 6 together for according to him they are interwoven. That is whether there was a sale and whether the presentation of title document is conclusive evidence of ownership
According to the counsel both issues cannot be divorced separately but treated together to lent credence to the fact that this land “Uhu Umuanu Land” never saw any sale, donation or alienation during the lifetime of its owner Late. Obi lobi Sunday Eke. That by the period under review the land is been farmed by its owner as rightly stated by the Defendant and concurred by the Plaintiff that it was bushy as at that time. Again, the land in dispute is bounded by Oparanozie Street, an ancient street within the municipality with Amaigbo Street, a name as old as Eastern Nigeria Region then with its capital at Enugu (East Central States) yet the Deed of Conveyance as alleged never had any of these street names mentioned on it (Survey Plan). Moreover, none of the Vendor’s family member or relatives signed for him but a stranger (factitious name) Mbelugbo with no relationship or identity with late Sunday Eke’s family. Vendee’s wife created suspicion of the said transaction by signing for the Vendor.
The counsel reproduced some portion of the cross examination of the PW1 and concluded that it is instructive to note that witness Written Deposition on Oath is different from the answer he supplied during cross examination.
It is submitted that it is trite that in land dispute, the onus of prove of ownership is usually on the Plaintiff to prove his claim and not on the weakness of the defence. The Onus of Proof in a Claim for declaration of title to land lies squarely on the Claimant to prove his case on the strength of his own case and not on the weakness of the Defendant’s case SEE ADEKANBI & 4 ORS VS. ADEBISI JAGBON (2007) ALL FWLR (pt 383) 152. It is the duty of the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title and the Plaintiff must succeed on the strength of his own case. SEE YELE VS OYENEYIN AKINKUGBE (2010) 41 NSCQR pg 416 @ 437 PER ADEKEYE JSC.
It is submitted that it is trite law that mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration. The Production of an instrument of grant of title carries with it the need for the Court to inquire into a number of questions including: – a. Whether the document is genuine or valid? whether it has been duly executed? c. Whether the grantor had the authority and capacity to make the grant? d. Whether the grantor had in fact what he purported to grant and finally e. Whether it has the effect claimed by the holder of the instrument?
It is submitted that the said document was poorly and ignorantly executed in order to impede the integrity of the Defendant father and family members hence Vendee’s wife signing for Defendant’s late father. Again, the Survey Plan claimed to have been made in respect of the land never captured where the said land was situated.
It is submitted that the Defendant’s Father had been in possession of this land, exercising maximum act of ownership till 1992 which was the last time he farmed on this land in dispute and not 1975 as allegedly claimed by PW1.
It is submitted that titled document is not conclusive prove of ownership as the law requires the Plaintiff to do more than merely producing title document but prove how the grantor came to own the land or how the grantor acquired the title which he. passed to the Plaintiff. These conditions must be proved by the Plaintiff, failure which could be fatal to his case. SEE ELIAS V OMOBARE (1982) 5 S.C 25. SEE ALSO MOGAJI V CARDBURY NIG. LTD (1985) (pt17) 393.
According to the counsel it is trite that one of the five ways of proving title to land is document of title. SEE IDUNDUN V OKUMAGBA (1976) NSCC· (VOL.10) 455. FATAYI WILLIAMS JSC (later CJN) held … “Ownership of land maybe proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved (underlining supplied) which means duly executed by the owner of the land and his agent so as to authenticate it. SEE ROAMAINE V ROMAINE (1992) 4 NWLR (pt 238) 650 @ 662 NNAEMEKA AGU JSC stated thus … ”production and reliance upon such an instrument inevitably- carries with it the need for the Court to inquire into some or all of a number of questions including” Aforementioned above SEE FASORO V BEYIOKU (1998) 2 NWLR (pt 79) 263
The court is urged to resolve the above issues in favor of the Defendant and hold that there was no actual sell of this land in dispute to Lazarus Iro as alleged by PW1 via Plaintiff and production of title document to land in dispute does not suffice as conclusive prove of ownership
On issue 2, it is submitted that the title document purportedly executed between PW1 and Plaintiff was made in anticipation of this suit. It is fact that the Plaintiff had lived at Oparanozie Street for 20 years before he moved to Irete Owerri West L.G.A which he cleverly avoided in his written deposition but this was affirmed during cross examination.
According to the counsel, it is an obvious fact that Plaintiff knew about the existence of this land long before he trespassed into and had made all necessary arrangements and/or plans to claim the said land in dispute. Relied on Section 83(3) which read thus … Nothing in this Section shall render admissible as evidence, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. SEE LADOJ A V. AJIMOBI & ORS (2016) LPELR-40658 SC or (2016)-10 NWLR (pt 1519) 89 PER CLARABATA OGUNBIYI JSC
It needs to be stated in keeping with Section 83 (3) of the evidence Act 2011 and judicial authorities which abound that as a general rule or principle, a document made by a party to a litigation or person interested when proceeding are pending or is anticipated as in this case at hand, such evidence is not admissible. SEE ALSO HIGHGRADE MARITIME SERVICES LTD V FBN LTD (1991) 1 NSCC 199 @ 135 IN APENA V AIYETOBI (1989) 4 NWLR (pt 95) 85 CA PER APATA JCA held that … There must be a real likelihood of bias before a person making a statement can be said to be a “person interested”
According to the counsel, a cursory inquiry into the documents, Deed of Conveyance, Power of Attorney, receipts and dispute Survey Plans shows that the Plaintiff careful perfected this Act long before institution of the suit as he got his PW1 ready and one other tenant as he had long nursed the desire to encroach into and take the “Uhu Umuanu land” realizing that the owner was down too sick to bother coming around the land and having known the family history. The court is urged to resolve this issue raised here in favour of the Defendant.
On issue 3 it is contended the Power of Attorney ought to have an illiterate Jurat or Verification note by the evidence of DW1. The counsel reproduced the DW1 evidence to the effect that the police said that the document is forged and that his father had no signature, he is not learned.
According to the counsel, the question usually asked is what protects an illiterate that is about to lease or sell his ancestral land. It is contended that what protects illiterates in land transactions is the illiterate Protection Act. Section 2 of the Illiterates Protection Act. By this it means that illiterate person was duly authorized to write the document, that what he wrote is a clear representation and signed by him especially where the contents of the document was read out and interpreted to the illiterate person before he or she signed or made his/her mark on the document. It is a law that once a verification note is provided, there is no need for a JURAT but where none is provided an illiterate jurat becomes very essential. As in this case (a brief statement on document stating that a content of a document was specifically read out and interpreted to a person who upon understanding same signed or made his mark on the document which must also include the name of the interpreter and his signature). SEE AIGHOBAHI V AIFUWA (2018) LPERLR 46504 (CA)
It is contended that a look at the alleged document wherein the Defendant late father and PWI late husband Lazarus Iro had as Deed of Conveyance, there was no verification note or illiterate jurat attached detailing that same was duly read over to Obilobi Sunday Eke and he understood its content before endorsing.
It is absolutely wrong for such transaction involving land to have been executed without a verification Statement and/or note or illiterate jurat attached. This aspect of the Vendor’s illiteracy and the fact that he thumbprints documents were never contradicted by the Plaintiff Counsel during cross examination of DW1. The court is urged to so hold and resolve this issue in favour of the defence.
On issue 4, it is contended that contradictions in evidence of Plaintiff witnesses usually in all cases resolved in favour of the defence. SEE OLATUNVOSUN V STATE (2011) ALL FWLR (pt555) 304@ 344 c. A PER NWEZE J. C. A
According to the counsel, the PW1 during cross examination in one breath told the Hon. Court that Late Sunday Eke’s mother witnessed the sale and the sister while the wife was sick.
According to the counsel, it is a contradiction that the Receipts tendered by Plaintiff showed that receipts issued were dated 2012 and not 2007 as alleged by him. Relied on QUEEN V UKPONG (1961) 1 ALL NLR P 25. IN R V GOLDER (1960) 1 WLR pt 1169 the consistency rule was explained by LORD PARKER C.J when he said that … When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable. They should also be directed that he previous statements, whether sworn or unsworn do not constitute evidence upon which they can act. SEE ALSO UDE V THE STATE (2016) LPELR 40441 (SC) PER MARY UKAEGO PETER ODILI J.S. C.
The court is urged to resolve the issue herein raised in favour of the defence as the contradictions inherent in their evidence is so great that it created doubts.
On issue 5, it is submitted that by the provision of Section 167(d) of the evidence Act 2011 which read thus … Evidence which could be and is not produced would if produced unfavorable to the person who withholds it, the PWI a vital witness to the land transaction between Defendant’s Late Father Obilobi Sunday Eke and Lazarus Iro failure to appear for further cross examination particularly on the purported Deed of Conveyance given rise to the land subject matter of this suit invoked Section 167(d) of the Evidence Act 2011 against the Plaintiff despite its grant by the Honorable Court. SEE ONYEKWULUJE V ANIMASHAUN (2019) 4 NWLR (pt 1662) 242 SC.
According to the counsel, although this particular section borders on failure to call evidence and not failure to call a particular witness, a case when an application to recall a vital witness whose further clarification on a document tendered in Court is very necessary and invoked the doctrine of Section167(d) of the evidence Act 2011. It is essential that there is a very strong urge that only the witness further cross examination could clear doubts on a particular document. SEE ALIYU V STATE (2013) 12 NWLR (pt1368)403 @ 420 SC. SEE ASO ZUBAIRU V STATE (2015) 16 NWLR (pt 1486) 504 @ 525. PER NGWUTA J.S.C.
The court is urged to resolve this issue in favour of defence and hold that the absence of PW1 for further cross examination to the Deed of Conveyance made in respect of this land between Defendant late father and her late husband was deliberate and intended to cover up PWl not to destroy their case.
On issue 8, it is submitted that the Plaintiff has failed woefully to prove his case to be entitled to the relief sought from the Honorable Court. It is the law that the legal burden of proving the claim lies and remains fixed on the Plaintiff. Relied on ELUFISOYE V ALABETUTU (1968) NMLR 298; ATUANYA V ONYEJEKWE (1975) 3 S.C. 161 @ 167
It is submitted that the Plaintiff may discharge the onus of prove, either by adducing cogent evidence of tradition or other evidence of possession and numerous acts of ownership demonstrating unequivocal exercise of dominion over the land, this he has not done where the Plaintiff in an action for declaration of title to land has not proved his claim, there is nothing for the Defendant to defend and they claim so unsuccessfully made fail on its merit. SEE ODUM V CHINWO (1978)6-7 SC. 251
It is submitted that it is trite that evidence adduced during trial must be in tandem with the pleadings in all matter or cases. A person or party must be consistent in the case he pursues. Parties cannot deviate from their pleadings. SEE OKHUAROBO V AIGBE (2002) 31 WRN 4 1 C.A.
It is submitted that DW1 has given evidence of how the land dispute became his father’s own during cross examination mentioned his lineage and how the land became his father’s own and had never deviated from his Written deposition points to the traditional evidence which is one of the five ways of proving title to land. (b) That production of document(s) of title which must be duly authenticated. (C) By the exercise of numerous and positive act of ownership over a sufficient length of time to warrant the inference that the person exercising such acts is the true owner of the land. (D) By act of long possession and enjoyment of the land and finally (D) By prove of possession of connected or adjacent land in circumstances rendering it possible that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. SEE GBEMISOLA VS BOLARINWA (2014) 9 NWLR (pt 1411) 1 @ 21 SC.
It is contended that the Plaintiff have failed to prove ownership of the said land despite parading title document. Relied on ISAAC VS IMASUEN (2016) ALL FWLR (pt 823) 1894 @ 1903 SC. PER M.D MOHAMMED JSC; ONATOYE VS JACOB VILLARS (2020) ALL FWLR (pt1042) 239 @ 242 -243
It is submitted that it is trite that when Plaintiff proves the preponderance of evidence that he, prima facie is entitled to a declaration of title in his favour, the Defendant “will need to lead some evidence to enable the Court consider on whose side the case will preponderate” failing which there will be nothing to be put on the imaginary scale. The court is urged to hold that the Plaintiff have failed to prove ownership of this land.
On the order hand the Plaintiff raised a single issue for determination thus:
Whether the plaintiff has proved his claim on a preponderance of evidence and entitled to the judgment of this Court?
It is submitted that, on the state of the pleadings of parties and evidence led by the plaintiff in this suit, the plaintiff has proved his claim in this suit on a preponderance of evidence and balance of probability, and is therefore entitled to the judgment of this honorable court. According to the counsel, the law is trite that where a party desires any court to give judgment as to any legal right or liability dependent on the existence of certain facts which he asserts, such a party shall prove that those facts exists and the burden of proof, in civil proceedings, shall be discharged on the balance of probabilities/preponderance of evidence. See Section 133 & 134 of the Evidence Act 2011; AGBOOLA vs. UBA PLC (2011) All FWLR (Pt. 574) 74 SC; EYA vs. OLOPADE (2011) All FWLR (Pt 584) 28 SC; IBIYEYE vs. FOJULE (2006) All FWLR (Pt 302) 156 SC; NWANKPU vs. EWULU (1995) 7SCNJ 197; MOGAJI vs. ODOFIN (1978) 4 SC
According to the counsel, in the instant case, the claims of the plaintiff as can be gleaned from the pleadings are primarily in two folds, thus:
- For declaration of title/ownership over and in respect of that piece of land called “UHU UMUANU” which is situate along Amigbo Street, Owerri Imo State and more particularly delineated in Plan No. EC 63/75.
- For damages and injunction against the defendant’s act of trespass onto the land in question.
It is submitted that the plaintiff has proved each and every fact relevant to establish his claims herein on a preponderance of credible evidence and balance of probability.
According to the counsel, the law is settled that the five ways to prove ownership/title to land. Relied on JIJA VS. SHANDE {2005} 9 NWLR {PT 931} 543 @ 562; IDUNDUN VS. OKUMAGBA {1976} 10 SC 227
It is submitted that in an action for declaration of title to land where the plaintiff as in this case, has pleaded for title the burden of proving such title to the piece of land claimed rest squarely on him. See KARIMU VS. LAGOS STATE GOVT. {2012} 5 NWLR {1294} 620 @ 647 D-E. The plaintiff adduced evidence of his numerous and positive acts of ownership as well as his acts of long possession of the land in dispute since 1994 (well over 10 years) without any disturbance or interference from anybody including the defendant or his family members, not until the defendant trespassed on the land sometime in November 2016. Referred to paragraphs 7, 14, 15 and 24 of written statement on oath of PW4 dated 19/4/2017 and adopted in evidence on 1/3/2018. The plaintiff can adopt and rely on one or more of the five ways of proving his ownership/title to the land so claimed. See MKPINANG vs. NDEM (2013) 4 NWLR (PT. 1344) 302 @ 312-313. The plaintiff also led credible evidence of his numerous acts of ownership and long possession of the land in dispute since 1994 through the testimony of Mrs. Felicia lroh (PW1) at paragraphs 8, 15 and 16 of her written statement on oath dated 19/4/2017 but adopted on 15/12/2017; which said facts in evidence were neither challenged, controverted nor impugned by the defendant.
It is submitted that in further proof, the plaintiff also adduced credible and reliable evidence of his acts of ownership and long possession of the land in dispute through the unchallenged and uncontroverted testimony of Chief Simeon Uche Udunwoke (PW2) at 6, 7, 8 and 12 of his written statement on oath dated 16/8/2017 but adopted in evidence on 8/2/2018
It is submitted that neither of the evidence adduced by the plaintiff in proof of his claim to ownership of the land in dispute was challenged, controverted or impugned by the defendant. It is trite law that where a piece of evidence is not challenged, controverted or impugned the court is bound to accept the evidence as good and credible evidence upon which the court can safely rely. See NADABO vs. DABAI(2011) 7NWlR (Pt 1245) 155; NSITFMB vs. KIIFCO {NIG.} LTD (2010) All FWlR (Pt 534) 73 SC; CBN vs. IGWILO (2007) 14 NWlR (Pt 1034) 393; BELLO vs. EWEKA(1981) 1 SC 101
According to the counsel, it is also on record that none of the plaintiff witnesses were cross examined on the above ways adopted by the plaintiff in proving his claim to ownership/title of land in dispute. By this failure to so cross-examine PW1, PW2 and PW4 on the facts and evidence led as to the plaintiff’s numerous acts of ownership and possession of the land in dispute, deemed to have accepted the above pieces of evidence, especially on the material points in the legal issue. See the cases of AMADI vs. NWOSU(1992) 5NWLR (Pt. 241) 273 SC; DAGGASH vs. BULAMA(2004) All FWLR (Pt. 212) 166 CA; IKUOMOLA vs. ONIWAYA(1990) 7SCNJ 147
It is submitted that in further proof of his claim the plaintiff tendered exhibits E and E1 containing rent receipts for his tenants on the land to establish his positive act of ownership and also long possession of the land in dispute through his tenants. Also, in corroboration of this fact, is the unchallenged testimony of PW2 in his aforesaid written statement on oath adopted on 8/2/2018. The defendant did not deny the said exhibit E & E1 but expressly admitted the above fact when he averred at paragraph 16 of the Statement of defence and his written deposition respectively that he met with the plaintiff’s tenants on the land who told him that they had long been on the land at the instance of the plaintiff as their landlord. The law is trite that facts admitted need no further proof and we urge your lordship to so hold on this particular issue. S.123 Evidence Act(supra);EGBUNIKE vs. A.C.B LlMITED(1995) 2SCNJ 58. It is however the law that where a party admits that the original ownership of property is in a party the burden of proving that that party has been divested of the ownership rests upon the other party. See ONOBRUCHERE v. ESEGINE (1986) 1 NWLR (Pt.19)799; OYOVBIARE & 20RS. v. OMAMURHAMU (1999) 7 SCNJ. 60 @ 69; ADOLE V. GWAR (2008) 11 NWLR (Pt.1099) 562
It is submitted that the plaintiff in the instant suit had pleaded that original ownership of the land in dispute vested in the defendant’s father by customary inheritance but that he (the defendant’s father) sold the land in dispute to one Mr. Lazarus lroh in 1975 who in turn sold the same said piece of land in dispute to the plaintiff in 1994. Referred to paragraph 7, 8, 9, 10, 11, 12 and 13 of the Statement of Claim.
It is submitted that in proof of the fact that the defendant’s father had divested himself of ownership of the land in dispute, the plaintiff led credible pieces of evidence of sale of the land in dispute by the defendant’s father to late Mr. Lazarus lroh in 1975 and by late Mr. Lazarus lroh to the plaintiff in 1994. Referred to testimony of PW1 and PW4 at paragraphs 9, 10, 11, 12, 13, 14 and 15 as well as paragraphs 8, 9, 10, 11, 12 and 13 of their respective written Statement on oath dated 19/4/2017. And also, the documentary evidence in Exhibits B, C and D which were respectively tendered without objection from the defend. The defendant did not challenge, controvert or impugn these pieces of evidence under cross examination of the plaintiff’s witness. We submit therefore that the failure of the defendant to challenge these pieces of credible evidence under cross examination was fatal and could not in law be cured by leading evidence through the defendant’s witnesses in a bid to contradict those established facts deemed to have been tacitly admitted by the defendant. See OFORLETE vs. THE STATE (supra);GAJI vs. PAYE (2003) FWLR (Pt 163) 1 @ 17-18; NIGERIAN CUSTOMS SERVICE VS. BAZUAYE (2006) 3NWLR (Pt 967) 303 CA; AGBANIFO VS. AIWEREON (1988) 2SCNJ 146
It is submitted that when a plaintiff has successfully discharged the burden of proving his claim (as in the instant suit) the evidential burden then shifts to the defendant to rebut the plaintiff’s case, where and if the defendant does not accept the facts of the plaintiff claim. See DABO v. ABDULLAHI (2005) 7 NWLR (Pt.923) p. 181. The plaintiff having discharged the primary burden of proving his claim in this suit by adducing a set of credible evidence that the defendant’s father had in 1975 extinguished his ownership of the land in dispute by sale to late Lazarus lroh who in turn extinguished ownership over the land in dispute to the plaintiff by subsequent sale in 1994, it behooved on the defendant therefore to discharge the burden that shifted on him to disprove the plaintiffs claim.
It is submitted that the defendant’s allegation of forgery in this suit is a criminal allegation in a civil proceeding which must be specifically pleaded with particulars and proved beyond reasonable doubt. AREBI V. GBABIJO & ORS.(2010} ALL FWLR (PT.527) at 710; NNACHI V. HON. IBORN, INEC AND ORS (2004) 1 EPR 786 at 800; BAYO V. NJIDA (2004) 8 NWLR (Pt. 876) 544; JANG V. DARIYE (2003) 15 NWLR (Pt 843) 4. This allegation of forgery was neither sufficiently pleaded nor proved in this case as required by law, and thus must fail woefully. It is the law that for the allegation of forgery to be established the following elements must be specifically pleaded and proved -1. That there is a document or writing. 2. That the document or writing is forged. 3. That the forgery is by the accused persons. 4. That the accused knows that the document or writing is false. 5. That he intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. Any omission of one of these elements robs the allegation of the required proof beyond reasonable doubt. See KATE ENTERPRISES LTD v. DAEWOO NIG LTD (1985) 2 NWLR (PT.5) 116 S.C.;BABALOLA v. THE STATE (1989) 4 NWLR (PT. 115) 264;NIGERIA AIRFORCE VS. JAMES (2002}18 NWLR (PT. 798) 29;BRILLA ENERGY LIMITED v. FEDERAL REPUBLIC OF NIGERIA & ORS (2018}LPELR-45651(CA). In the face of express denial contained at paragraphs 9, 10 and 11 of the plaintiff’s Reply to Statement of defence, the evidential burden rested squarely on the defendant to prove that his late father thumb printed documents contrary to signing his signature as shown in Exhibit B; this burdens the defendant woefully failed to discharge by producing proof of any document thumb printed ‘by his late father during his life time. There is also no single piece of evidence adduced before this Court in this case (either through DWl, DW2, DW3 or even DW4) to support the spurious allegation that the defendant’s father only thumb printed and did not sign documents during his life time. The defendant also failed to adduce before this court any piece of evidence of the alleged “common knowledge and practice that Donor of land usually gets at least one witness from his village/kindred or his wife to sign for him”, It is pertinent to note that PW1 as witness to the sale in Exhibit B emphatically and unequivocally stated under cross-examination that she physically witnessed the defendant’s late father sign Exhibit B himself in favor of her husband, late Lazarus lroh in 1975; and this piece of evidence was not controverted by the defendant. In the above circumstances of the defendant’s obvious failure to adduce any credible piece of evidence in this suit to prove his assertion that his late father did not sign Exhibit B leaves this honorable court with the only reasonable conclusion that Exhibit B, as shown of the face of it, was executed by late Sunday Eke who by the said Exhibit B extinguished ownership of the land in dispute in favor of late Lazarus lroh – as pleaded and sufficiently proved by the plaintiff in this suit.
The court is urged to so hold on the preponderance of evidence and balance of probability. It is trite that documentary evidence (Exhibit B) is the hanger by which oral evidence is assessed. See EGHAREVBA VS. OSAGIE (2010) ALL FWLR (PT 513) 1255 S.c. and OGUNDEPO VS. OLUMESAN (20J.2) ALL FWLR (PT 609) 1136 @ 1148 – 1149 S.c.
It is submitted that it is also settled law that a plaintiff in an action for declaration of title to land has the onus to lead credible evidence in proof of the identity of the said land except in cases where both parties are in agreement as to the identity of the disputed land. See KARIMU VS. LAGOS STATE GOVT. (supra) @ 653-654. Although the parties seemed somewhat to be in agreement as to the identity of the land in dispute, the defendant’s contradictory assertions in this case at paragraphs 5 and 7 of the statement of defence respectively, first that the land subject matter of this suit belonged to his late father by inheritance and then in another breath that the land belonged to five families namely, Ejelonu, Eke, Amuneke, Mbanu and Manuihe; and more particularly at paragraph 8 wherein the defendant alleged that the land size was reduced to less than a plot after the new road construction by Rochas Okorocha’s administration; raised a reasonable doubt as to whether the defendant was indeed in agreement with the plaintiff as to the identity of the particular land in dispute. It behooved therefore on the plaintiff to identify the land in dispute with some exact certainty. In proof therefore, the plaintiff led unchallenged evidence in paragraph 1 of the additional written deposition of PW4 dated 16/8/2017 relying on the delineation and description of the land in dispute in survey plan no. EC 63/75 dated 11/4/1975 and attached to Exhibits B, C and D on the one hand and the dispute survey plan no. JAN/645/IM/DP/001/2017 admitted in evidence as Exhibit A, both of which were neither challenged controverted nor impeached by the defendant.
It is submitted that both survey plans correspondently established the fact that since the year 1975 the land in dispute measured only 317.246sqm and was never a full plot of land that averagely measures 465sqm. We also refer, in this regard, to the unchallenged testimony of PW3 at paragraph 7, 8 and 9 of his written statement on oath dated 16/8/2017. It follows therefore that the land in dispute was not a full plot of land and the size was not affected by any road construction during Rochas Okorocha’s administration as falsely alleged by the defendant. Furthermore, as could be clearly deduced from Exhibit A, the newly constructed Amaigbo road by Rochas Okorocha’s administration could not and in fact did not in any way affect the land in dispute as there is a piece of land belonging to one Nze Obinna which situates before the land in dispute. The defendant does not even know the extent and dimensions of the land in dispute.
The law is settled that an action for trespass is based on exclusive possession and it lies against the whole world except one who can show better right to possession or title. See TUMO v. MURANO (2000) 12NWLR (Pt. 681) 370@ 391; SHITTU v. EGBEYEMI (1996) 6 NWLR (Pt. 457) 650 @658. The wrong or tort of trespass is actionable per se by a person who is in exclusive possession. OSHO v. FOREIGN FINANCE CORP. (1991) 4 NWLR (184) 157; ADENIRAN v. ALAO (1992) 2 NWLR (222) 350; ECHERE v. EZERIKE (2006) ALL FWLR (323) 1597; Kawu JSC in ATUNRASE AND ORS. v. SUNMOLA AND ANOR. (1985) 1 NSCC 115 @ 119 -120. It follows, therefore that the slightest possession in the plaintiff enables him to maintain an action for trespass if the defendant cannot show a better title. Thus, any form of possession is sufficient to maintain an action for trespass against a wrongdoer as long as it is clear and exclusive. It is not necessary, in order to maintain trespass, that the plaintiff’s possession should be lawful. An actual possession is good against all except those who can show a better right to possession in themselves. See ATUNRASE AND ORS. v. SUNMOLA AND ANOR. (supra)
It is submitted that from the pleadings and evidence before this court, it is not in issue between the parties that the plaintiff has been in actual physical possession of the land in dispute through his tenant. The defendant expressly admitted this fact. It is also not in issue that while the plaintiff was in actual physical possession of the land in dispute the defendant came upon the land and or interfered with the plaintiff’s right to possession at the material point in time. The defendant himself made positive direct assertion in that regard. By the foregoing admission of the plaintiff’s possession of the land in dispute it behooved on the defendant to show or establish a better right to possession or title in order to defeat the plaintiff’s right to succeed on the claim for damages for trespass, possession having been found to be in the plaintiff. See FABUNMI v. AGBE (1985) 1 NWLR (Pt. 2) 299.
From the facts and evidence before this honorable court the defendant woefully failed to show or establish that a better right to possession and title to the land in dispute vest in him and not in the plaintiff who has been in exclusive physical possession of the disputed land till date. Thus, necessitating a just finding of the tort of trespass on the land in dispute to be entered against the defendant. A claim for damages for trespass and an injunction to restrain further trespass once there is a finding of trespass, just as in the instant case, the claims for damages and injunction must be awarded by the Court. OGUNYOMBO v. OOKOYA (2002) 16 NWLR (Pt. 793) 224. With the above, we submit that the plaintiff is entitled to damages for trespass, and injunction against further trespass.
It is submitted that from the foregoing submissions, the entire claims of the plaintiff in this suit, as encapsulated in the reliefs pleaded at paragraph 27 (a) to (d) of the Statement of claim, have been established by overwhelming credible evidence presented by the plaintiff in proof thereof, which preponderates and tilts that imaginary scale of justice in favor of the plaintiff’s claims. It is thus submitted that the plaintiff has proved his case as required by law and are entitled to the judgment of this court.
In response to issues 1 & 6 of the Defendant, it is submitted that Exhibit B speaks for its self and that PW1’s evidence on the sale of the land in dispute by late Sunday Eke to late Lazarus lroh was direct, unambiguous and credible in establishing the said sale of the land in dispute in 1975. It is pertinent to note that the evidence of PW1 on the said issue was not controverted or impugned under cross-examination as alleged by the defendant counsel. The said Exhibit B was not impeached by the defendant or his counsel during hearing of this suit; and consequently, the address of counsel cannot take the place of evidence in an attempt by counsel to unwittingly to attack the said Exhibit B upon some baseless assertions. It is however of paramount Importance to submit that, contrary to the misconceived view of the defendant counsel, the plaintiff’s proof of ownership/title to the land in dispute in this case is founded on his numerous and positive acts of ownership as well as long acts of possession of the land in dispute. The evidential import of Exhibit B, C and D in this suit is to establish that the original ownership of the disputed land that erstwhile vested in the defendant’s father had, by a valid and legitimate process, been extinguished in favor of the· plaintiff.
In response to issue 2 of the Defendant, it is submitted that none of the plaintiff’s documents were produced in anticipation of this suit as alleged. The date on the said documents (except Exhibit A which is a dispute survey plan) go to show that the said documents were made long before and without any contemplation that the defendant will trespass on the plaintiff’s land in November 2016.
In response to issue 3, it is submitted that there is no single piece of evidence before this honorable Court suggesting the minutest inference that the defendant’s father is an illiterate to warrant the defendant counsel’s contentions under this issue that Exhibit B ought to have an illiterate jurat. Assuming without conceding that DW1 under cross-examination did state (as reproduced by counsel in his written address) that his late father Sunday Eke “is not learned “we submit that there is no such fact pleaded before this court upon which the alleged piece of evidence could stand. It is trite that evidence led in support of a fact not pleaded goes to no issue, and as such should be discountenanced accordingly. ANYANWU v. IWUCHUKWU (2000)15 NWLR (Pt. 629) 721 S.c.
In response to issue 4 of the Defendant it is submitted that there are not contradictions in the evidence of PW1 and PW3, as alleged by defendant counsel; indeed, none was made out by counsel while arguing his issue no. 4.
In response to issue 5 of the Defendant, it is submitted that the contentions and submissions of counsel under his issue no. 5 are unfounded and grossly misconceived. Both s. 167 (d) of the Evidence Act (supra) and the cases cited by counsel apply to cases wherein a piece of evidence that ought to be produced was not produced.
In response to issue 7 of the Defendant, it is submitted that it is not in every action for claim of ownership to land that a party is required to trace root of title to the founder of the land. It is only when such a party is relying on evidence of traditional history that he is required to so trace title to the original founder. IBIKUNLE v. LAWANI (2007) 3 NWLR (PT. 1022) 580 CA, OKOKO v. DAKORO (2006) 14 NWLR (PT. 1000) 401 SC.
Defence Reply
The Defendant filed a reply on point of law. The defendant referred to Section 20 of the Evidence Act which state thus … An admission is a statement, oral or documentary-which suggests an inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances mentioned in this Act. SEE MTN COMMUNICATION L TD V. AMADI (2013) All FWLR (pt 670) 1329 CA. SEE ALSO VICTABIO VENTURES L TD V. W.VAN DER ZWAN & Z.N.B.V (2009) ALL FWLR (pt 490) 756 C.A.
By the Defendant deposition and statement of defence, DWI had repeatedly both in his deposition and cross examination stated in paragraphs 4,7,8,9,10 and 15 (refer to statement of defence and witness deposition) such averments were never challenged nor controverted all through the proceedings. Either was there an application made to amend the statement of claim to counter same and incorporate new or controvert same. SEE SMAB-INTER TRADE L TD V BULANGA (2013) ALL FWLR (pt 693) 2019 CA. IN ALHAJI MUHAMMED BABA AHMED V THE GOVERNMENT OF GOMBE STATE & ORS (2021) LIPELR (10811) CA. PER J.H SANKEY J.C.A held that … The position of the held is also settled to the effect that the failure to file a better affidavit in response to either an affidavit or counter affidavit makes the facts in such affidavit or counter affidavit to remain unchallenged and uncontroverted. SEE WATHARDA V ULARARAMAI (2014) LPLER-24175 (CA)) 10, A.G ONDO STATE V.A.G. EKITI STATE (2001) 17 NWLR (pt 743) 706. UNIVERSITY OF ILORIN V OY ALANA (2001) FWLR (pt 83) 2198, 2206. UZONDU V UZONDU (1997) 9 NWLR (pt 521) 466.
In BGL PLC & ORS V FIRST BANK OF NIGERIA PLC (2021) (CA) 11101 which is in conformity with Section 121 (1) (a) of the Evidence Act 2011. The Supreme Court had held that … when evidence that directly affects a matter in controversy is neither attacked nor successfully discredited, it is said to be uncontroverted and is good and credible evidence that can be relied upon by the Court. SEE N.S.I.T.F.M.B V KLIFCO NIG. L TD (2010) ALL FWLR (pt 534) SC. SEE ALSO OFORLETTE V STATE (2000) FWLR (pt12) 2081 or (2000) 12 NWLR (pt 681) 415.
IN OWNERS OF M/V GONGOLA HOPE VS SMURFIT CASES L TD where Supreme Court held that … if the evidence of a Plaintiff/or Defendant is unchallenged and uncontroverted particularly where the opposite party had the opportunity to do so, it is always open to the trial Court seized of the matter to accept and act on such, unchallenged and uncontroverted evidence before it. In such circumstances, the Supreme Court held, the evidence before the Court obviously goes one way with no other set of facts or evidence weighing against it. In other words, that there is nothing in such a situation to put on the other side of the proverbial or imaginary scale of balance as against such evidence given. SEE OKORO V STATE (2012) 4 NWLR (pt 1290) 351 @ 372-373 SC.
A cursory look at DWI written depositions, statement of defence and even Cross Examination, paragraphs 24,25,26,27,28,29,34 and 35 and deposition paragraphs 8,9,20,21,24,28 and 35 were unchallenged nor controverted either in Cross Examination or processes filed in respect thereto. But of great interest of his averment in paragraphs 17 and 19 which stand unchallenged although the trial. That legal maxim “Quod ab initio non valet in tracta temporis non con valescit” became very relevant in PWI (Donor) evidence and Cross Examination (what is not valid in the beginning does not become valid by time). SEE EGBUNIKE V AFRICAN CONTINENTAL BANK LIMITED (1995) 2 NWLR (pt 375) 34 @ 55. OGBIRI V N.A.O.C L TD (2010) 14 NWLR (pt1213) 208 @ 214. The said averments were never traversed by the Plaintiff’s Counsel during Cross Examination. SEE FALOBI V FALOBI (1976) S.C.I, ADEKANY A V COMPTROLLER OF PRISON (2000) FWLR (pt 69) @ 1258
RESOLUTION OF MATTER
Let me first of all commend the counsel in this matter, more particularly IC Achara Esq for the Plaintiff and CE Anyanwu Esq., for the Defendant. Throughout the course of this matter, they were well comported and showed a great respect for themselves and this court.
It is trite and well established that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore, of necessity satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See MADAM MODUPE ORE ANIKE DOSUNMU v. OLORI BOLANLE ODESANYA & ANOR (2013) LPELR-22755(CA). However, when the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of that evidence to strengthen his case, if it is consistent with, and corroborates his case. See ALHAJI KAMORUDEEN ASALU & ORS v. CHIEF JONATHAN DOSUNMU & ORS (2019) LPELR-49113(CA)
Is the land a family land? This question becomes necessary due to the pleadings of the Defendant. In paragraph 7 the Defendant averred:
“The Defendant avers that the land called “Uhu Unuanu” is owned by five families namely: Ejelonu, Eke, Amuneke Mbaonu and Manuihe.”
He went on to aver in paragraph 8:
“That the land shared by family members was used by his mother as garden planting cassava, Anara (garden egg leave) vegetables (ugu), Osi Pepper, oha etc.
If it is established that it is a family land or kindred/communal land then there will be need to show that the head of the family and principal members consented or agreed to the sale. In MR. MICHAEL AIYEOLA v. MRS. RAMOTA YEKINI PEDRO (2014) LPELR-22915(SC) it is stated:
“It is essential to the validity of sale of family land that the head of family must join in the conveyance and the principal members of the family must consent to the transaction. Such a combination of parties to the conveyance of family land by the head of family and the principal members of the family is unimpeachable. Any sale or disposition purporting to transfer family land without these essential customary elements is void ab initio. Fayehun v Fadoju (2000) 6 NWLR (Pt. 661) 390 at 404, 405.” Per MARY UKAEGO PETER-ODILI ,JSC (Pp. 37-38, paras. F-A)
From the totality of evidence before me, I hold that the land in question is not a family/kindred land. It is an individual land. It is as rightly averred by the Plaintiff in paragraph 7 thus:
“The land in dispute originally belonged to the defendant’s father, late Mr. Sunday Eke, who held same by customary inheritance from his forbearers under the native law and custom of the Owerri Nchise people.”
Again, the Defendant argued that because the sale was not witnessed by any member of Eke’s kinsmen, there is/was no sale. Is it the requirement of the law or custom that an individual cannot dispose/sell his personal property without his kindred/kinsmen knowing or bearing witness? Definitely, it is not a requirement of the law. And if it is the requirement of the custom there is need for the Defendant to plead and prove same. In ALHAJI BUKAR GONIMI v. BABA GONI BUKAR BOLORI (2021) LPELR-55155(CA) it is stated:
“The point I will however make is that, a party relying on custom is obliged by law to plead the custom and adduce evidence in support of that custom except if the custom is so notorious that the Court can take judicial notice of it. See Mohammed Husseni & Anor vs Mohammed N. Mohammed & Ors (2014) 3 NWLR (pt 1445) 100; Momodu Olubodun & Ors vs Oba Adeyemi Lawal & Anor (2008) LPELR-2609(SC).”Per EBIOWEI TOBI ,JCA (P. 24, paras. A-D)
The court went ahead to stated that the law recognizes sale by English law thus:
“The law recognizes sale by English law or customary law. If it is by English law, the parties will enter into a sales agreement. Even in customary sale, parties either enters into an agreement or gets a receipt of sale as evidence of the sale. For a customary sale agreement of land to be valid, the purchaser must pay the purchase price in the presence of witnesses and must be put in possession in the presence of witnesses. See Adedeji vs Oloso & Anor (2007) 1-2 S.C 76; Jimoh Atanda vs Hon. Commissioner for Lands and Housing, Kwara State & Anor (2018) 1 NWLR (pt 1599) 32. The role of witnesses is very important as most times, no formal and elegant agreement is written between the parties when customary sale is conducted. The Appellant therefore must give satisfactory evidence that he paid the purchase price for the land in the presence of witnesses and further that he was put in possession of the land by the vendor in the presence of witnesses. If any of this evidence is missing, the evidence of customary sale will not avail the Appellant. These two conditions are mutually inclusive and not exclusive. This means that both conditions must exist. In Engr Bayo Akinterinwa & Anor vs Cornelius Oladunjoye (2000) LPELR-358 (SC), the apex Court held: “In order to constitute a valid sale of land under customary law, there must be payment of money and delivery of possession of the land sold in the presence of witnesses. This custom is of universal application throughout Nigeria. See Egonu v. Egonu (1978) 11-12 SC 111; Cole v. Folami (1956) SCNLR 180; 1 FSC 66 (1956) SCNLR 190.” Per EBIOWEI TOBI ,JCA (Pp. 31-33, paras. E-A)
Where a party relies on Customary purchase, there are certain things that must be proved such a sale to be valid. In EZEAKU v. ANACHUNA & ORS (2016) LPELR-42036(CA) it is stated:
“The appellant clearly pleaded and established all the ingredients of customary sale which are: (1) Payment of purchase price. (2) Handing over possession of the purchase land by the vendor to the vendee in the presence of witnesses. See ODUSOGA vs. RICKETTS (supra), OKONKWO VS. OKOLO (1988) NWLR (PT. 79) 632.” Per BOLAJI-YUSUFF, J.C.A. (P. 38, Paras. D-F)
The law is settled that there are five ways as enunciated in IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 227 (1976) VOL. 10 NSCC 446 how to establish ownership of title, to wit:
- Proof by Traditional history or evidence.
- Proof by grant or the production of documents of title.
- Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such acts is the true owner of the land.
- Proof by acts of long possession.
- Proof by possession of connected or adjacent land in circumstances rending it probable that the owner of such land would in addition be the owner of the land in dispute.
The pleadings of the Plaintiff will determine whether it is one or combination of any of these five ways the Plaintiff is building his claim. In EFFIONG ODIONG MKPINANG & ORS v. CHIEF EFFION NDEM & ORS (2012) LPELR-15536(SC) it is stated:
“It is trite that it is the pleadings and evidence adduced by a plaintiff for declaration of title that determines whether he has proved his case or not. In other words, proof of a claim for a declaration of title by means of traditional evidence is not mutually exclusive with other means of proving the claim. See Kojo vs Bonsie supra; Motunwase vs Sorungbe (1998) 4 NWLR (Part 92) 90. Thus, a plaintiff may adopt one or more of the ways of proving ownership for example, traditional evidence or by means of evidence of acts of ownership or possession. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession, when these were the means pleaded and relied upon that the plaintiff’s case should be dismissed. It is also immaterial whether the learned trial Judge makes a finding that the traditional history of one or both parties is inconclusive.” Per KUMAI BAYANG AKA’AHS ,JSC (Pp. 9-10, paras. F-D)
It is evidently clear that the plaintiff hinged his claim on document of title and acts of ownership. The pleading is not customary sale. That being the case, witnesses to the transaction be it wife or kindred people, is of no moment. In THE HONOURABLE COMMISSIONER FOR LAND AND HOUSING, KWARA STATE & ANOR v. MALLAM JIMOH ATANDA (2006) LPELR-6155(CA) it is stated:
“It is quite clear to me from the emphasised words that the respondent pleaded the agreement referred to in the paragraph as his root of title. That was the document he introduced into evidence as exhibit ‘A’. He did not trace his root of title to any other transaction, either under the received English law or customary law. He did not plead that he bought the land under customary law. He specifically pleaded that it was “by an agreement dated 10th August, 1976” that Malam Omoyiola Iyanda sold the disputed land to him, thereby transferring title in the land to him. The only reference that the respondent made to custom and tradition was in relation to the holding of the land, not the sale of it.
The plaintiff pleaded the Power of Attorney evidencing the transaction between him and his predecessor in title. The original ownership of the land in dispute was vested in the defendant’s father by customary inheritance but that he (the defendant’s father) sold the land in dispute to one Mr. Lazarus lroh in 1975 who in turn sold the same said piece of land in dispute to the plaintiff in 1994. The said Lazarus took him to the land and introduced him to the tenants. The Defendant has said there is no predecessor in title as his father did not sell any land to the alleged predecessor in title. All the documents in possession of the Plaintiff in respect of the land were all fabricated by the Plaintiff. In paragraph 27 of his Statement of Defence:
“The Defendant averred that Plaintiff forged the said POA that is a common knowledge and practice that Donor of land usually get at least one witness from his village/kindred or his wife to sign for him but none was seen in the purported document which the Plaintiff supplied.
At paragraph 28:
“He avers that it is on record in Umuanu Kindred of Umuonyeche that his late father Obilobi Sunday Eke only thumb printed and does not sign, had never signed any document before except thumb print”
At paragraph 29:
“Defendant avers that after the said meeting he had been expecting Plaintiff to call a subsequent one wherein the said donor of the land to him will be available as he had promised doing so before all but he had reneged till date hence arousing his suspicion that he knew what he was doing as it is usually with most OCDA staff who indulges in such unwholesome act of falsification of documents to claim land which does not belong to them.”
In the course of the cross examination the defendant stated:
“On my report he was invited and he came and told them he had made report since November 2016. After police incidence the Plaintiff came to court and filed this suit. Something happened that made him to come to court it was because DCOP travelled and asked his deputy to handle it. So, when he brought the document, police cited and found it was forged. He did not come to the Station again. He now went to court. He even sued the Police. I have been at Police State CID in respect of this matter for ten times but Plaintiff was there for 3 times and did not come again. I said when the Plaintiff brought the document the police cited and found that it was forged because it was signed and my father did not sign. My father has no signature.
The Defendant alleged that the exhibit B was forged in that it was allegedly signed by his father who does not sign but thumbprint. The Defendant assumed that thumbprinting instead of signing a document is conclusive evidence of illiteracy or not being learned. It is this assumption that made the Defendant to argue that the document that exhibit B require jurat. I will say straight away that there was no where on the face of it that exhibit B would have required a jurat because it was nowhere thumb printed and no indication that any party to it is an illiterate.
Now, literacy is determined by provable facts and not by mere observation that a person thumb-prints, neither is signature a prove of literacy. Action like thumb printing a document or given evidence in mother tongue is not conclusive evidence of illiteracy. See PRINCE NNAJI V PRINCE AGBO & ORS (2006) ALL FWLR (PT 305) 736 @ 781. In ALHAJI DAHIRU ADAMU v. ASHAKA CEMENT CO. PLC (2015) LPELR-25610(CA) it is stated:
“The law has long been well settled in a long line of judicial authorities as are replete in our law reports that illiteracy, whenever it is alleged, is a question of fact to be proved by credible evidence by the person so alleging it.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (P. 19, para. A)
The court defined illiterate thus:
“Who then in law is an illiterate person? In Otitoju V. Governor of Ondo State (Supra0 @ p. 518, an illiterate is defined thus: “A person who is unable to read with understanding and to express his thoughts by writing, in the language used in the document or prepared on his behalf.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp. 21-22, paras. F-A)
And went us to state how to prove it thus:
“An attempt was also made by this Court to restate the law on proof of illiteracy in Gabida V. Marcus (Supra), where Mangaji, JCA., (May Allah bless his soul), stated thus: “Outside clear evidence that a person is an illiterate, the fact that he appended his thumb print on a document is no proof that he is an illiterate, just as the fact of signing a document is not proof that the maker is not an illiterate. The conclusion whether a person is an illiterate is a matter of fact provable by evidence” On the state of the applicable principles of law, illiteracy is undoubtedly a question of fact. Being a question of fact, therefore, the test is an objective, not emotive or subjective, one for as it was succinctly stated in Anaeze V. Anyaso (Supra) thus: “The issue of illiteracy is a question of fact to be decided objectively on the evidence presented in Court …” Per BIOBELE ABRAHAM GEORGEWILL ,JCA (P. 22, paras. A-E)
In the pleadings and evidence of the Defendant it is portrayed that the Police found the document as forged. How did the Police found that the documents are forged? Were the findings of the police in writing and was conveyed to the parties? In any case the Police was not called to testify. Evidence at what the Police at best is hearsay evidence.
Furthermore, the allegation of forgery is an allegation of crime. It is the responsibility of the Defendant to prove that his father’s signature was forged as alleged by him. There is need to bring any document where the Defendant’s father thumb-printed. None of the witnesses called by the Defendant said that they had any transaction with the Defendant’s father wherein he thumb-printed. In MADAM IRIGHOTEMU ONOJIGHOFIA v. MADAM FLORENCE OKOTIE & ANOR (2018) LPELR-45046(CA) it is stated:
“It would be recalled that it was the Respondents who pleaded that Exhibit D1 was forged, altered and full of manipulations. It only naturally follows that the duty to prove all that was alleged rested squarely on the shoulders of the Respondents. The Appellant having tendered Exhibit D1, the onus was on the Respondents to demonstrate by their pleadings and evidence that the document was forged, altered and full of manipulations and not the duty of the Court below, which obviously embarked on a fishing expedition to make a case for the Respondents.”
I agree with the Plaintiff that in the face of express denial contained at paragraphs 9, 10 and 11 of the plaintiff’s Reply to Statement of defence, the evidential burden rested squarely on the defendant to prove that his late father thumb printed documents contrary to signing his signature as shown in Exhibit B; this burdens the defendant woefully failed to discharge by producing proof of any document thumb printed ‘by his late father during his life time. There is also no single piece of evidence adduced before this Court in this case (either through DWl, DW2, DW3 or even DW4) to support the spurious allegation that the defendant’s father only thumb printed and did not sign documents during his life time.
I agree with the Plaintiff that the defendant also failed to adduce before this court any piece of evidence of the alleged “common knowledge and practice that Donor of land usually gets at least one witness from his village/kindred or his wife to sign for him”, It is pertinent to note that PW1 as witness to the sale in Exhibit B emphatically and unequivocally stated under cross-examination that she physically witnessed the defendant’s late father sign Exhibit B himself in favor of her husband, late Lazarus lroh in 1975; and this piece of evidence was not controverted by the defendant. In the above circumstances of the defendant’s obvious failure to adduce any credible piece of evidence in this suit to prove his assertion that his late father did not sign Exhibit B leaves this honorable court with the only reasonable conclusion that Exhibit B, as shown of the face of it, was executed by late Sunday Eke who by the said Exhibit B extinguished ownership of the land in dispute in favor of late Lazarus lroh – as pleaded and sufficiently proved by the plaintiff in this suit.
To further buttress the fact that it is not the practice that the Donor of land usually gets at least one witness from his village/kindred or his wife to sign for him is evidence elicited during the cross examination. It goes thus:
DW1: The two pieces of land by the side of the land in dispute I do not know who owns them. Behind the land in dispute, I do not know who occupies it now but the indigenes are Ejelonu family. I do not know if you will be correct to say that the land around the land in dispute are not in the hand of original owners. Amuneke’s family are the original owner of the plot Nze Obinna currently occupies. I know Maduwuike family and Mbonu family own Piece of land beside the land in dispute as the original owner. I am not aware that the two pieces of land beside the land in dispute is owned and currently occupied by one Mr. Chike Anuro Opara. It is not owned by any family. I do not know who is Chike. I also do not know that the land directly behind the land in dispute is owned and currently occupied by one Ezirim Linus. It is not owned by my family.
DW2: I do not know that Ejeleonu family own share of Uhu Umuanu land was also sold and currently owned and occupied by the same Chuks Anuruo Opara. I do not know that the land at the back of the land in dispute was sold to one Ezirim Linus who has been in occupation since mid-70s. My interest is who sold the land in dispute.
This evidence under cross examination supports the fact it is not the custom that a member of the family must witness the sale of a personal property of a member of the family. The DW1 does not know the current occupants of the land surrounding the land in dispute. It means he was not consulted before they were sold. And nobody who was consulted was called to testify of such knowledge. The DW2 declared boldly that his interest is on who sold the land in dispute and not on who sold the lands surrounding the land in dispute. None of the lands surrounding the land in dispute is still in the hands of the original owners and the Defendant cannot say exactly when they were sold, to whom and by who since according to them nobody sells without their knowledge. For their claim to stand they must have a detailed account of when each of these surrounding plots was sold.
Another point in favour of exhibit B is that it is a document of over 20 years old. There is presumption that the person alleged to have signed it, indeed signed except where there is proven fraud. In MRS. DEOLA OJO & ANOR v. MR. KAMILA OYEDEJI ISIBA & ORS (2017) LPELR-46296(CA)
“The presumption as to documents 20 years old is predicated on the rule of necessity and convenience. Thus, in Ayanwale v. Odusami (2012)1 All FWLR (Pt. 610) 1246 at 1257 – 1258 the Supreme Court held inter alia that because most of the people conversant with the signature, etc, of the document may be dead or if living their memories may have faded by effluxion of time and thus pose difficulty and at times impossibility to prove, for instance, the signature in the document the presumption is readily invoked. The presumption is only as to due execution, attestation or signing of the person who is purported to have signed the document, but it is not a presumption in favour of the correctness of the contents of such document vide Osawe v. Osawe (1991) 5 NWLR (Pt.194) 710 at 717. The presumption is however, rebuttable. Evidence of fraud would, for example, displace the presumption if the evidence shows beyond reasonable doubt that the fraud afflicted the document which was 20 years old between the date of execution and the time it is sought to be put in evidence vide Amoo v. Aderibigbe (1994) 2 NWLR (Pt. 324) 92, Obawole v. Williams (1996) 10 NWLR (Pt. 477) 146. Here the document, Exhibit P4, was registered on 18-04-1944 vide page 49 of the record and it was put in evidence as Exhibit P4 on 16-09-09 vide page 190 of the record. Between the two dates would be over 20 years old showing the document, Exhibit P4, could be considered under Section 130 (now Section 155) of the Evidence Act 2011.” Per JOSEPH SHAGBAOR IKYEGH ,JCA (Pp. 13-15, paras. F-A)
The Plaintiff has averred that:
- Sometime on or about May 1994 the said late Lazarus Iroh, as the then beneficial owner of the land (now in dispute) sold same to the Plaintiff for valuable consideration, and therefore put the plaintiff in exclusive possession of the land (now in dispute). The document titled ‘Power of Attorney’ dated 18/5/1994, evidencing the sale transaction and the consideration for which the land (now in dispute) was sold by the said late Mr. Lazarus Iroh to the Plaintiff
- Since the aforesaid later sale of the land (now in dispute), the Plaintiff has remained in effective lawful possession of the land as the beneficial and bonafide owner.
- The Plaintiff, upon taking over full posseion of the land now in dispute, inherited the makeshift houses built by the plaintiff’s predecessor in title, late Mr. Lazarus Iroh, and began receiving rents from the tenenats thereon. However, subsequently in the year 2007 following the Imo State Government’s policy against the existence of shanty houses on the land erected some block houses on the said land (now in dispute) and thus put rent paying tenants therein since the year 2009 till date. Copies of recipt of rents collected by the plaintiff from the tenants living on the land (now in dispute), as the landlord, are hereby pleaded and shall be founded upon at the hearing of this suit.
- Sometime on or about 17/11/2016, the defendant without the consent or authority of the Plaintiff, trespassed into the Plaintiff’s land (now in dispute) and stopped the construction work the Plaintiff was effecting thereon. The plaintiff confronted the defendant and demanded to know who he was nad what he was doing on the land. The defendant introduced himself to the plaintiff as the son of late Mr. Sunday Eke, alleging amongst other things that my land (now in dispute) still belonged to his late father’s family.
The Defendant averred:
- The Defendant avers that at no time material was the said land subject of any dispute or sale between his late father or anybody until his demise in 2008 after a protracted illness
- He further avers that the land is not up to one full plot after the new raod constructed by the present administration of owelle Anayo Roachas Okorocha building the 2nd & 3rd Inland Bridges. That the land shared by family members was by his mother as garden, planting cassava, anara (garden egg leave), vegetable (ugu), Osi pepper, oha etc
- The Defendant avers that the last time, his mother planted the vegetables in this garden on or before 1995 as she was sick for sometime which hindered her movement to this garden.
- He further avers that before the inception of the present Government, the whole of that Area leading to the 1st and 2nd Inland Bridges were populated by criminals who built makeshift shelters around there.
- The Defendant avers that on one of such visits to this land, he stumbled upon the Plaintiff’s tenants who had built a makeshift batcher therein, he was in company by his brother by name Chukwuemka Amuneke, he had pleaded with one of the tenant(sic) to give him the name of their landlord which he had obliged them and equally told him when to see him there.
- He further avers that on one of such visits, the tenants had told him that they had an understanding cum agreement with the landlord to build the makeshift and that they were paying rent which receipts they did showed(sic) to him.
Under cross examination the DW1 stated:
We do not measure it to say that the land in dispute is a complete plot of 100 X 50 ft or more. I do not know the size of the land in dispute. I have 3 elder brothers. I attained Elementary 6. I have been at Owerri until after the death of my mother in 2001 when I went to Enugu. I came back from Enugu in 2012. I went to Enugu because my two brothers died. I was born 25-3-1975. It is true my mother before her death was sick for a long period of time before she died in 2000. She became ill in 1993. My brothers the elder ones are all based in Owerri. My contact with the Plaintiff in respect of the land in dispute was sometimes in November 2016. That was not when I went to the land in dispute. In November of 2016 I went to the land in dispute. And I found people living on the land in dispute. Those people told me that they were put on the land in dispute by the Plaintiff on rent. They did not also tell me that some of them have been living on the land since 1994. My father was a famer before he died. My father farmed on the land in dispute. We last farmed there in 1993. My father has other farm land at New Owerri. 1993 we stopped farming there because my father was sick and my father had wound on his leg. My mother was diabetic. He stopped farming on the land in dispute. He stopped farming in 1993. As at 1993 Government has acquired New Owerri.
The PW4 – the Plaintiff under cross examination stated:
The land subject matter of this suit I bought in 1994 from Lazarus Iro No #5 Douglas Road Owerri, Imo State. I bought it in 1994. He took me there. What was there were batchers. He explained to them that I am the one who now owns the land and told me that these are those occupying the place. When I entered, I did not give them receipt because I know I will demolish the batchers. When I took over, I told them I am not collecting money from batchers because I know OCDA does not allow batchers. I was not collecting rent from them. 2006 when OCDA gave notice for removing batchers. So, on 2007 I removed the batchers and started block house. I finished it in 2009 and people entered and I started collecting rent from them in 2009. I inherited 3 room batchers this way and 3 rooms batchers that way making it 6 rooms. The previous landlord introduced 4 tenants to me when I took over other two rooms nobody was living there. And one Chief Simeon Uche Udomike was one of those tenants I inherited from the previous landlord. I never issued receipts to Chief Simeon Udomike. He was not there when I finished the block house
From the averment of the Defendant and his evidence particularly that of the DW1, it cannot be said for certainty that the whole area including the land in dispute was populated by criminals who built makeshift shelter around there. The defendant met person(s) who were sane enough to acknowledge that they have a landlord. And that they pay rents to this land lord and even showed receipt.
The Defendant said he stopped farming on the land in 1993-1994 and is not able to say what his activities were on the land from 1994 to 2000/2001 and 2008 when unfortunately, his mother and father died respectively. A simple arithmetic will show that he was 25 years in 2000 and 33years in 2008 having been born in 1975. He did not also state his ownership activities on the land from 2008 to 2016. So, for a total period of 18 years or more depending on whether it was in 2012 or 2016 that the Defendant said he noticed the activities on the land, there was no activities by the Defendant on the plot.
Again, from the evidence of the two major witnesses the PW4 and the DW1, it would appear that the assertion by the Plaintiff that he was in occupation through his tenants since 1994 was not countered by the Defendant. The Defendant acknowledged he was shown a receipt by the tenants but did not say whether it was a monthly receipt or yearly receipt. If it is yearly: which years or years did the receipt cover? This left us with the evidence of the Plaintiff which stated specifically that he started collecting rent from 2009.
The evidence of the Defendant was also not particular in what year he visited the plot of land and met the tenant as he seems to prevaricate between 2012 and 2016. And whether it was in 2012 or 2016 he only made report to the police in March 2017.
The theory that the Plaintiff must have known or studied the history of the family and plotted to claim the land is not substantiated. According to the counsel, it is an obvious fact that Plaintiff knew about the existence of this land long before he trespassed into and had made all necessary arrangements and/or plans to claim the said land in dispute.
Having looked at Exhibit B it does not appear to me to have been made in a recent time. The document was prepared by a lawyer RC Azutalam with a known address and can be verified. It is also registered with the land registry with name and signature of Government official, which can also be verified. It does appear that the Defendant made no effort to independently verify these documents from the land registry. They are public documents. I had earlier said that deed of assignment or conveyance’s validity, unlike that of a Will, is not dependent on attestation or witnesses to the signed. In ALHAJA RISIKAT ISHOLA v. AYODELE ILORI & ORS (2004) LPELR-12557(CA) it is stated:
“On the question of execution of Exhibit 2, I am of the firm opinion that it was not necessary to prove the due execution Exhibit 2. This is because a deed of assignment like Exhibit 2, unlike in Wills and Bills of Sale, does not require attestation for its validity, it is enough that it was signed particularly by the assignor and assignee. See P.A. Olayede’s “Nigerian Law of Conveyance” page 158 and the case of NATIONAL GRINDLAYS BANK LTD v. DHARAMSHI VALLAHI (1966) 3 WLR. 294. By virtue of S.107 of Evidence Act any proof of document not required by Law to be attested may be proved as if it was unattested. On this basis Exhibit 2 may be proved as if it were unattested. This is because it is the deed of the assignor and as long as he has signed it, the deed is valid and enforceable. Thus, it was held by this Court that a deed of legal mortgage which was signed by only the mortgagor was valid: See UBN Plc v. JASE MOTORS (NIG) LTD. (1997) 7 NWLR (pt 513) 387 at 400. See also AWOJUGBADE LIGHT INDUSTRIES LTD v. CHINUKWE (1995) 4 NWLR (pt 390) 379 and ANAMBRA STATE HOUSING DEVELOPMENT CORP. v. EMEKWUE (1996) 1 NWLR (pt 426) 505 at 532
Though the PW1 testified that she witnessed the signature of the parties, the execution of a deed of assignment is valid on the execution by the donor and done.
The plaintiff tendered exhibit ‘A’ which is a dispute survey plan. Though, I am not prepared to hold that tendering a survey or composite plan of the land does establish title or ownership, it shows the features on the land and affirms the evidence of the party tendering it. A dispute plan would show details of not only what the litigant claims to be boundaries to the land, but would also show features which will help the court to form a good picture of the land and its environs. A plan is supposed to be a mirror or picture of the evidence to be led by a party. See CHIEF (DR) M. C. A. PETERSIDE & ORS. v. H.R.H. EZE ODUM G. WABARA & ORS (2010) LPELR-4847(CA)
A party who is in disagreement with the features depicted has to file his own dispute plan. The settled legal position remains that a litigation survey plan which is not countered will be taken as accurately reflecting the disputed land. See JULIE RAPHAEL & ANOR v. ABDULMALIK EZI (2014) LPELR-23328(CA). The Plaintiff’s dispute survey plan contained the alleged closed old Amaigbo road. It contained buildings on the disputed land and not batchers. There was no allegation that construction of building was going on while this suit was pending. Again, the DW1 had insisted Amaigbo street is now called Sam Mbakwe Road. Old Amaigbo Street is the same as Amaigbo Road now expanded and called Sam Mbakwe Road. That Amaigbo Street that existed between the land in dispute and Nze Obinna land was never closed sometimes in 2006. Amaigbo remained Amaigbo and now Sam Mbakwe”. But the exhibit A is to the contrary.
The said Exhibit “A” (and the details shown therein) on been admitted is incorporated into the proceedings and forms part of the evidence of the Plaintiff. The details in Exhibit “A” having become part and parcel of the evidence before the Court, the implication is that the Defendant is deemed to have admitted or accepted these features as accurate. See OGBENNA & ORS. vs. KANU & ORS.(2018)LPELR-45072(CA)
The Plaintiff tendered a certificate of occupancy. I agree with the defendant’s counsel that titled document is not conclusive prove of ownership as the law requires the Plaintiff to do more than merely producing title document but prove how the grantor came to own the land or how the grantor acquired the title which he. passed to the Plaintiff. These conditions must be proved by the Plaintiff, failure which could be fatal to his case. SEE ELIAS V OMOBARE (1982) 5 S.C 25. SEE ALSO MOGAJI V CARDBURY NIG. LTD (1985) (pt17) 393
It should be noted that this certificate of occupancy is not in respect of Government acquired land but customarily owned land. This position is clearly brought out in the following two cases:
- SHERIFF USMAN v. NASIRU AUDU BABA (2013) LPELR-22136(CA) it is stated:
“Where a party relies on documents like Certificate of Occupancy, to prove title to land, it must be rooted on a good foundation. That is to say, the Certificate of Occupancy must be based on the land being properly acquired by the authority issuing out the Certificate of Occupancy, failing which the Certificate of Occupancy becomes nothing but a worthless paper and sit precariously on banana pills and must slip with a slight touch of a judicial Hammer. See Alhaji Sani Mani & 2 Ors v. Alhaji Shehu M. Shanono (2006) 15 WRN 1 – 192 pages 128 at 130 ratio 13 where this Court held thus: “it is the law that a Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof, the certificate also raises a presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person has a better title to the land before the issuance of the Certificate of Occupancy, then the Court can revoke it”.
- SAMSON OLANREWAJU ABOABA v. MR. TAIWO OGUNDIPE (2017) LPELR-42922(CA) it is stated:
“However, as regards the certificate of occupancy, it is trite that a certificate of occupancy is not conclusive proof of title as certain factors must be established to give it a foundation. A certificate of occupancy is only prima facie proof of title which is rebuttable. If successfully challenged, it will give way. The apex Court in the case of MR. AUDU OTUKPO v APA JOHN & ANOR (2012) LPELR-20519(SC) had this to say:
” In order to succeed in a claim of title a party who held a certificate of occupancy will need to show his root of title that is through his vendor and that the vendor or seller has to show valid title to the land over which the purchaser secured his certificate of occupancy. This is because the certificate of occupancy can only be valid if the root of title originates from customary owners of the property.” See also ALHAJI AMINU SULEIMAN v ALHAJI TUKUR ADAMU (2016) LPELR-40316 and LATEJU V FABAYO (2012) 9 NWLR (PT. 1304) 159 at 179.
The defendant was not able to fault the validity of the exhibit B. The certificate of occupancy can be said to have originated from customary owner of the property.
The defendant has not shown that the documents tendered in prove of the Plaintiff’s claim were made by interested party during the pendency of this suit. The only document that is post date of the commence of this suit is the Exhibit A which is dispute survey plan. Any of the parties to the suit are entitled to access the land in dispute to produce a dispute survey plan. In CHIEF (DR) M. C. A. PETERSIDE & ORS. v. H.R.H. EZE ODUM G. WABARA & ORS (2010) LPELR-4847(CA)it is stated:
“… the general rule and the law is that documents made by an interested party during the pendency of a suit is inadmissible. See OGIDI v. EGBA (1999) 6 SCNJ 107. Section 91 (3) of the Evidence Act provides as follows: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. This section had been interpreted by the law Courts in particular relation to the question whether a surveyor acting in his professional capacity in preparing a survey of the land in dispute during the pendency of an action can be regarded as an “interested person” so that the document he prepared would be held inadmissible. It has been held that the word “interested” in Section 91(3) of the Evidence Act must be given a narrow rather than a broad meaning. See ANYAEBOSI v. R. T. BRISCOE NIG. LTD. (1987) 3 NWLR Pt.59 Pg.84, or (1987) 6 SCNJ 9 at pg.22-23; APENA v. AIYETOBI (1989) 1 NWLR Pt.95 Pg.85. The attitude of the Courts is settled that a surveyor, like any expert in any other field of knowledge, who is tendering a survey plan is not an “interested person” in respect of the admissibility of the document (survey-plan) made by him during the pendency of the action. The rationale held Olagunju JCA in OKONKWO v. OKONKWO (supra) is that such an expert has no reason or temptation ordinarily to depart from the truth as he sees it from his professional experience. He ordinarily should have no personal purpose to serve. See also GBADAMOSI v. KABO TRAVELS (2000) 8 NWLR Pt.668 Pg.243.” Per HELEN MORONKEJI OGUNWUMIJU ,JCA (now JSC) (Pp. 8-9, paras. C-D)
It is my considered view that the Plaintiff has proved his case having regard to the document presented and his acts of possession. Accordingly:
- It is declared that the Plaintiff is the lawful owner entitled to statutory right of occupancy, in and over the piece of land called “Uhu Umuanu” which situates along Amaigbo Street, Owerri Imo State and more particularly delineated in Plan No EC63/75.
- An Order of perpetual injunction is made restraining the Defendant, his Servants, Agents, Workmen, Privies and or assigns from further trespassing into the Plaintiff’s aforesaid land.
- An award of N1,000,000.00 (One Million Naira) is made as general damages against the Defendant for trespass upon the Plaintiff’s aforesaid land.
I so hold
I.M.Njaka
Judge
21-12-2021