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IN THE SUPREME COURT OF NIGERIA

ON TUESDAY, THE 6TH DAY OF SEPTEMBER 1983

SC 32/1983

BETWEEN

GAIUS EGEMASI AND ANOTHER .......................................... APPELLANT

AND

AGIM DURU ONYEKWERE AND ANOTHER ............................................. RESPONDENT

BEFORE: Irikefe, Bello, Obaseki, Aniagolu, Nnamani, JJ.S.C

 

The parties to this case claimed title to the disputed land by separate suits which were subsequently consolidated.

In the High Court, the learned Judge gave judgment for the appellant for a declaration of title to the land and ordered that the respondent, his servants or agents be restrained from entering the said land or interfering with the appellants in exercising their right as owners.

Aggrieved by the decision of the High Court judge, the respondent appealed to the Federal Court of Appeal and through his Counsel relied on the evidence copied as having been given under cross-examination, which thus reads.

“There was a time the land in dispute was on pledge to Akaladim of Atta. There was a time Agim Duruji Onyekwere–first defendant and Elekwe Onyekwere redeemed the said land from Akaladim.”

On this evidence, the Federal Court of Appeal rested its decision in setting aside the judgment of the trial Judge.

The appellants’ Counsel contended on appeal that the evidence relied on by the Federal Court of Appeal was falsified. The manuscript of the trial Judge shows that what the court recorded was thus “There was no time the land in dispute was on pledge to Akaladim of Atta. There was no time Agim Onyekwere–first defendant and Elekwe Onyekwere redeemed the said land from Alakadim”, and not that presented to the Federal Court of Appeal.

 

HELD: 

(1) The manuscript of the trial Judge shows beyond controversy that what the court recorded was “There was no time etc.”

(2) Although there is no direct evidence as to who carried out the alteration of the record of proceedings there can be no doubt that this “despicable and criminal act of the worst and most heinous dimension” must be placed squarely at the door steps of the party who stood to benefit from the criminal.

(3) Irikefe J.S.C.–”I am satisfied that the decision of the Court of Appeal was obtained by a dastardly fraud to which the respondent herein was either a direct party or at least a willing one as he stood to gain by the fraud perpetrated. I cannot find words strong enough to deprecate and condemn what has happened here.”

Appeal allowed

Chief J. N. Obgonna (with Mr I.I.O. Ukoha) for Appellants/Applicants.

Mr A. B. C. Iketuonye (S.A.N.) (with Mr F. M. Iketuonye) for Respondents.

Irikefe, J.S.C. The parties to this case claimed title to the disputed land by two separate suits which were subsequently consolidated. At the end of the trial in the court of first instance before Ogwuegbu J. then of the Owerri High Court, the learned Judge awarded a decision in favour of the appellants now before us in the following words:—

“I therefore give judgment for the plaintiffs for a declaration of title to the land verged pink in exhibit A and order the defendant to collect N2 being the redemption fee deposited with DW3 in 1971. It is hereby ordered that the defendant his servants or agents be restrained from entering on the land verged pink in exhibit A or interfering with the plaintiffs in the exercise of their rights as owners thereof. The defendant’s claim in Suit No. HOW/93/71 is hereby dismissed. N100 costs to the plaintiffs.”

Being aggrieved by the above decision the respondent herein appealed to the Federal Court of Appeal and before that court the respondent through his Counsel relied on the evidence as recorded as page 35 of the printed record between lines 15 and 18. The evidence copied as having been given under cross-examination reads:—

“There was a time the land in dispute was on pledge to Akaladim of Atta. There was a time Agim Duruji Onyekwere–1st defendant and Elekwe Onyekwere redeemed the said land from Akaladim.”

The said evidence, if indeed it was given, would represent a startling departure from the case made by the appellants now before us in their pleadings. One would then be tempted to ask why they had taken the trouble of going to court at all. There was no controversy on the fact that it was on this damaging concession that the Federal Court of Appeal rested its decision in setting aside the judgment of the court of trial. Upon the Affidavit evidence before us which shows that the original evidence before the court of trial was a categorical and unequivocal denial of the suggestions put by cross-examining Counsel, I am satisfied beyond any iota of doubt that one evil person or persons contrived to send a falsified record to the Court of Appeal in order to harm the cause of the appellants here. The manuscript of the trial Judge exhibit B shows beyond controversy that what the court recorded was–There was no time–etcetera and Iketuonye, learned Counsel acting for the respondent, admitted before us that the record as written read–there was no time. There is no direct evidence as to who carried out this alteration, a despicable and criminal act of the worst and most heinous dimension. Be that as it may, there can be no doubt that, this act must be squarely placed at the doorsteps of the party who stood to benefit from this criminal falsification–in this case, the respondent herein. The respondent’s Counsel chose not to file a counter-Affidavit in denial of the grave allegations made in the case, even when it was stated that the learned Judge had denied recording the falsified evidence forwarded to the Court of Appeal. Mr Iketuonye has now suggested that this Court should embark on a wildgoose chase by sending the case back for an investigation as to who actually effected the forgery. I do not intend to be a party to this sterile exercise. In all my years on the bench I have never come across any matter that is so revolting. Speaking for myself, the Court of Appeal would have had no difficulty in discovering what had happened if it had but read the pleadings and the totality of the evidence led. It would have discovered the incongruous nature of the disputed evidence led. It would have discovered the incongruous nature of the disputed evidence–vis-a-vis the pleadings as stated earlier in this judgment. If, and this was admitted by Iketuonye and supported by the exhibited manuscript which gave rise to the forged record, the evidence was no in the alleged two places, then there would be no ground for what the learned justice of the Court of Appeal did. The decision of the court of trial would stand as firm as the rock of Gibraltar. Nothing that was argued in that court could dent the decision of the court of trial. I am satisfied that the decision of the Court of Appeal was obtained by a dastardly fraud to which the respondent herein was either a direct party or at least a willing one as he stood to gain by the fraud perpetrated. I cannot find words strong enough to deprecate and condemn what happened here. In the result this appeal is allowed on the only ground argued before us. The unanimous decisions of the Federal Court of Appeal in this matter (Phil-Ebosie, Aseme and Olatawura JJ.C.A) dated 2nd March, 1982 is hereby set aside in their entirety including the order as to costs. In its place I order the full restoration of the judgment of the Owerri High Court (Ogwuegbu J.) dated 14th February, 1978 which I carried at the commencement of this judgment. The appellants are awarded N300 costs against the respondent herein. The appellants herein are also entitled to their costs in the Court of Appeal which I hereby assess at N150.

Bello, J.S.C. The evidence adduced in this Court is quite clear that the Federal Court of Appeal set aside the judgment of the trial Court had entered judgment for the respondents herein solely on falsified record of appeal before that court. The evidence shows that 1st plaintiff testified before the trial Court as follows:—

“There was no time the land in dispute was on pledge to Akaladim of Atta.”

“There was no time Agim Duruji Onyekwere–1st defendant and Elekwe Onyekwere redeemed the said land from Akaladim of Atta.”

The aforesaid testimony was subsequently altered by unknown person by making the two “no” to appear as “a” and the sentences as shown in the record of appeal sent from the court of trial to the Federal Court of Appeal read “there was a time.”

In their judgment the learned Justices of the Court of Appeal regarded the two altered sentences as admission of a pledge made by the appellants herein at the trial and to which admission, according to the Court of Appeal, the trial Judge had not adverted his mind. The issue of falsification of the record was not brought to the notice of the Court of Appeal and consequently it based its judgment on the record as falsified.

It is quite obvious that had the true record been presented to the Federal Court of Appeal it would not have given judgment in favour of the respondents herein. It would have dismissed their appeal.

I would accordingly allow the appeal, set aside the judgment of the Federal Court of Appeal and restore the judgment of the trial Court. I endorse the order as to costs made by my learned brother Irikefe, J.S.C.

I would direct that the Chief Registrar of this Court should bring to the notice of the Chief Judge of Imo State the criminal aspect of the falsification of the record of appeal in this case with intent to cause miscarriage of justice for investigation and punishment of the authors of the forgery.

Obaseki, J.S.C. This appeal is against the judgment of the Federal Court of Appeal which reversed the judgment of the High Court of Iwo State sitting at Owerri (Ogwuegbu, J.) delivered in favour of the plaintiffs/appellants in the claim HOW/72/71 for declaration of title, order of court that the defendants do accept redemption fee and an injunction restraining the defendants, their servants and agents from entering the said land ‘UH’ AMA’ situate at Ikenbana Ikeduru. It is necessary to observe that the defendant brought a cross-action and both were consolidated for trial. The defendants’ claim Suit No. HOW/93/71 was however dismissed by the trial Judge following the judgment in favour of the plaintiffs.

The decision of the Federal Court of Appeal was based primarily on a falsified record of the evidence of the 1st plaintiff/appellant which contained an admission of pledge and redemption thus:

“There was a time the land in dispute was on pledge to Akaladim of Atta. There was a time Agim Duruji Onyekwere–redeemed the said land from Akaladim.”

The correct version now exhibit to us in this Court, reads:

“There was no time the land in dispute was on pledge to Akaladim of Atta. There was no time Agim Duruji Onyekwere–1st defendant and Elekwe Onyekwere redeemed the said land from Akaladim.”

The learned Justice who wrote the lead judgment of the Federal Court of Appeal (Olatawura, J.C.A.) concurred in by the other Justices (Phil-Ebosie and Aseme, JJ.C.A) commenting on the falsified version which was the only record before the Federal Court of Appeal, said after quoting the said evidence:

“If one stops there, the question that readily comes to mind and which will logically follow in view of the pleadings is: Did the land revert to the plaintiffs’ father after it was redeemed by Agim Duruji and Elekwe Onyekwere? The record is silent on that. The plaintiff was not re-examined on that issue or on the issue of ambiguity between the evidence-in-chief and his answer under cross-examination. This piece of evidence of the plaintiff-in-chief supports the defence; paragraph 4 of the statement of defence in HOW/72/71 which reads:

‘4. The defendants deny paragraph 5 of the plaintiffs’ Statement of Claim and further say that the land in dispute was redeemed by the 1st defendant Agim Duruji Onyekwere and his other brother Elekwe from Akaladim of Atta Ikeduru about 80 years ago.’

See also paragraph 7 of the Statement of Claim in HOW/93/71. If the plaintiff has admitted under cross-examination what defendants pleaded in their pleadings it is unnecessary for the defendant to call further evidence to prove that averment. It is therefore wrong for the learned trial Judge to conclude as he did when he said:

‘The defendant therefore failed to produce reasonable and acceptable evidence of the pledge of this land by Nwanyanwu Ofoeke and its subsequent redemption by Agim Elekwe from Akaladim of Atta Ikeduru.’”

The learned Justice of the Federal Court of Appeal who was dealing with ground 1 of the 3 grounds before the Federal Court of Appeal ended the comments by saying:

“I think there is substance in this ground 1 of the ground of appeal.”

He found no substance in grounds 2 and 3 which were the other grounds argued before the Federal Court of Appeal.

Having found that the appellants succeeded on ground 1 based on the falsified record, he proceeded to make consequential orders as follows:

“There will be judgment for plaintiff in HOW/93/71 as follows:

(1) Declaration of title to the land covered by exhibit B i.e. plan No. E/GAO/48/71

(2) N50.00 for trespass committed by the defendants in HOW/93/71

(3) A perpetual injunction restraining the defendants. For the avoidance of doubt, the claims in HOW/72/71 are dismissed.

Costs are assessed N100.00 in the court below and costs of this appeal are assessed at N150.00 to the appellants.”

The duty of Counsel to ensure that correct records of proceedings are before Appeal Courts cannot be over-emphasised.

It is conceded by the learned Counsel for the respondents Iketuonye, S.A.N. that the judgment of the Federal Court of Appeal based on falsified records of evidence cannot stand. I agree with him entirely. He has, however, applied that after setting aside the decision of the Federal Court of Appeal, the matter be remitted to the Federal Court of Appeal for hearing on the correct record of evidence. I find myself unable to agree with him and I would refuse that application. He argued only 3 grounds of appeal in the court below and succeeded only on the one based on the falsified record. It is my view that if the record had not been falsified to convey admission of the facts instead of denial of the facts, he would also have failed on that ground. He has failed to show me that he would have succeeded on the basis of the facts disclosed in the correct record of evidence.

I would and I hereby allow the appeal, set aside the judgment and orders including orders as to costs made by the Federal Court of Appeal and restore the judgment of the High Court (Ogwuegbu, J.).

The appellants are entitled to costs to be paid by the respondents, both in this Court and the Federal Court of Appeal.

The respondents shall pay the appellants costs in the Federal Court of Appeal, N150.00 and in this Court, N300.00 as made by my learned brother, Irikefe, J.S.C.

Aniagolu, J.S.C. This appeal deserves to succeed. The appellants are claiming about the falsification of the judge’s record of proceedings by the alteration of the word “no” to the word “a” By this alteration, the character of the evidence of the plaintiff had fundamentally changed. Whereas the plaintiff said they did not pledge the land, the changed version now asserted that the land was pledged.

Based upon this purported admission the Federal Court of Appeal entered judgment for the defendants, thereby allowing the appeal of the defendants on that sole ground. We are, however, now satisfied, upon the documents filed by Mr Ogbonna for the appellants including the Affidavits, that the judge’s record was clearly falsified and that it is upon that false record that the Court of Appeal based its judgment setting aside the judgment of the High Court which was in favour of the plaintiffs, and entering judgment for the defendants.

While not saying categorically that it was through aegis of the defendants that the alteration of the record was made, it must be stated that it was the defendants who stood to gain by the falsification. Indeed, as it turned out, the Federal Court of Appeal gave them judgment solely upon the purported admission made by the first plaintiff (Gaius Egemasi) under cross-examination of Mr Iketuonye. And so, the fruit of the falsification or forgery went to the defendants. Olatawura, J.C.A., in his lead judgment for the court not only referred to the admission which he underlined (see page 99 of the record) but also leaned heavily on it. At page 103 of the record, the learned Justice of the Court of Appeal stated:

“It appears to me that the learned trial Judge in his evaluation of the evidence did not avert his mind to the admission of the plaintiff during the cross-examination, a passage I had earlier referred to, for if he did, he would have found that this supports the averment in paragraph 7 of the Statement of Claim HOW/93/71 and could not have concluded that paragraph 7 is in conflict with the evidence led. . .”

Further on, the Court of Appeal in its judgment stated:

“I think that should be the judgment of the court, for the appellants’ claim in HOW/93/71 ought not to have been dismissed in view of the admission of the respondents about the pledge. The two cases were consolidated, the plaintiffs failed to prove their claims, the defendants have succeeded in proving their claims. The appeal is therefore allowed, the judgment of the Owerri Court dated 14th February, 1978 together with the costs awarded is hereby set aside.”

From these passages there is no doubt that the Federal Court of Appeal decided the appeal on that point only. The point, having now been resolved in favour of the defendants upon a forgery of the judge’s record, no court of justice will allow the decision to stand. It is for this reason that I am clearly of the view that this appeal must succeed and that in doing so, Order 9, rule 8 of the Supreme Court Rules should be made to apply waiving the non-compliance of the rules on the issue of Brief.

Accordingly, I allow this appeal, set aside the judgment of the Federal Court of Appeal dated 2nd March, 1982 and restore the judgment of Ogwuegbu, J., dated 14th February, 1978 which was in favour of the plaintiffs. The appellants are entitled to their costs which I hereby assess as contained in the judgment of the Presiding Justice.

Nnamani, J.S.C. There is no doubt that the contents of exhibit ‘B’ are crucial to this whole appeal. From exhibit ‘B’ it is clear that the trial Judge recorded the 1st appellant as having said unequivocally that there was no time the land in dispute was pledged to Akaladim of Atta. This denial was consistent with the pleadings of the applicants, (see paragraphs 5 and 6 of the Statement of Claim of the plaintiffs/appellants) and their case throughout the trial. Yet the record of proceedings which was used by the Federal Court of Appeal mysteriously recorded the 1st appellant as having said that there was a time the land in dispute was pledged to Akaladim of Atta. This gave a totally different complexion to the case. From a perusal of the proceedings of the Federal Court of Appeal, it is clear to me that the judgment of the learned Justices of that court turned on the purported admission of pledge to Akaladim of Atta. Olatawura J.C.A., who wrote the lead judgment, having rejected all other grounds of appeal urged on that court by the respondents herein i.e. the appellants in the court below, accepted only their ground 1 and concluded as follows—

“I think that should be the judgment of the court for the appellant’s claims in HOW/93/71 ought not to have been dismissed in view of the admission of the respondents about the pledge. The two cases were consolidated, the plaintiffs failed to prove their claims, the defendants have succeeded in proving their claims.”

The plaintiffs’ claim in HOW/72/71 was dismissed on the same ground. Ebosie and Aseme JJ.C.A. concurred with him.

I therefore agree with learned Counsel for the appellants that the judgment of the Federal Court of Appeal was obtained by fraud and ought not to be allowed to stand. No useful purpose, in my view, can be served by sending this case back to the Federal Court of Appeal as it is clear on the printed record that they have considered and rejected the respondent’s Counsel’s other urgings on that court. Besides, as this appeal is concerned almost entirely on issues of facts, and having studied the entire records, I am satisfied that Ogwuegbu, J. properly evaluated all the evidence before him and came to a decision which I think cannot be faulted in law or fact.

In all the circumstances, this appeal has merit and ought to succeed. I would allow it. I set aside the judgment of the Federal Court of Appeal dated 2nd March, 1982. In its place I would restore the judgment of the Owerri High Court, Ogwuegbu, J., dated 14th February, 1978 together with his order as to costs. The order for costs is as contained in the judgment of the learned presiding Justice Irikefe, J.S.C.