In The Supreme Court of Nigeria

On Friday, the 30th day of March 1990

SC 232/1987

Between

S. Fatuade                              ......                       Appellant

And

F. C. Onwoamanam              .......                      Respondent

Judgment of the Court

Delivered by

Saidu Kawu. J.S.C.

After reading the briefs of argument and hearing submissions of counsel in this appeal on the 16th day of January, 1990, I found the appeal completely devoid of merit, dismissed it, affirming the judgment of the Court of Appeal and reserved my reasons for the judgment till today. I now give my reasons.

The respondent in this appeal, as plaintiff instituted an action against the appellant in the High Court of Lagos State claiming as follows:

(1)    Possession of the house situate, lying and known as 52A, Aiyetoro Street, Ajegunle which is the property of the plaintiff

(2)    The sum of N1,270.00 being special damages suffered by the plaintiff when the defendant without lawful authority collected rents on 11 rooms in the premises at N3.00 per month per room from January, 1968 - December, 1971.

(3)    Injunction restraining the defendant from going on to the premises to collect rent.

Pleadings were ordered, filed and exchanged.

Briefly put, the plaintiff's case was that in 1956 a parcel of land was leased to her by the Ojora Chieftaincy Family according to native law and custom for N600.00 with an annual rent of N2.50k. She was put into possession immediately after the transaction. She then commenced erecting a house on the land which building was completed in 1960. The house had 11 rooms. She and her family occupied 2 of these rooms and the remaining rooms were let to tenants, it was also her case that at the outbreak of the national crisis in the country in 1967, she fled Lagos for the East, leaving her husband in charge of the house. It was, however, not long before the husband also found it necessary to flee Lagos and join her in the East. Before the departure of her husband, he left one Sule Atanda in charge of the house whose whereabouts is unknown. At the end of the hostilities, she returned to Lagos and met new tenants in the house who refused to acknowledge her as the owner of the house. She was in fact told that the house belonged, not to her, but to a Yoruba man - the defendant. When she eventually met the defendant, he claimed the house belonged to him. The matter was reported to the Police. The defendant was invited to the Police Station where he produced some documents, which he claimed had transferred ownership of the house to him. As the Police did not appear to be keen on prosecuting the defendant, the plaintiff instituted an action against him in Ajeromi Grade B Customary Court. However, the hearing of the case had not been completed in that court when the court ceased to have jurisdiction to try land cases. She was then told that her case had been discontinued and transferred to Lagos High Court on the order of the Chief Judge of Lagos State. As efforts to get her case listed for hearing in the High Court after the transfer proved unsuccessful, she was obliged to institute this action afresh in the High Court.

The defendant's case was that in 1968 he bought the house from the plaintiff's husband called Stephen Nwamara for N1,000.00 through his brother, Jacob Nwamara pursuant to a letter of authority dated 7th June, 1967. It was his case that the house was the property of the plaintiff's husband and not that of the plaintiff.

At the trial the plaintiff gave evidence and called four witnesses in support of her claim. The defendant also gave evidence but called no witness. At the end of the trial, the learned trial Judge reviewed the evidence adduced and in his judgment, concluded as follows:-

It seems to me that the balance of probabilities weighs more in favour of the defendant than the plaintiff.

The plaintiff has in my opinion failed to prove any title or that she is the lawful owner of the premises. From all the evidence adduced, it seems to me that the balance of probabilities is that the property belonged to the plaintiff's husband who arranged to dispose of it during the civil war crisis of 1966 to 1970, and before he left for the East.

My finding is that the sale transaction between the defendant, the plaintiff's husband, Jacob, and Stephen Nwoamanam took place. If indeed Exhibit P12 is a forgery it has not been shown that it was prepared by the defendant, and I do not believe that Jacob & Stephen did not exist either nor could their existence have been concocted up, otherwise, how could the defendant have been able to come by all the documents exhibited, which belong to the plaintiff's husband and which relate to his title. Were these documents stolen or forged too? ................

The defendant's story seems to me to be more credible, and not only has the plaintiff failed to establish ownership or prove title she has also failed to disprove the defendant's case. I do not D in any case believe her story in view of the discrepancies in the documents tendered, even though I have fully considered the evidence to the effect that her documents of title could not be found after the Customary Court case which the plaintiff instituted.

Thus, the plaintiff's claim was dismissed in its entirety. She was dissatisfied with the decision of the High Court and appealed to the Court of Appeal, Lagos Division. In a lead judgment delivered by Nnaemeka-Agu, J .C.A. (as he then was), and concurred in by Kutigi and Kolawole, JJ.C.A., that court on the 28th day of February, 1986 allowed the appeal ,set aside the decision of the trial court and granted all the reliefs claimed by the plaintiff. This appeal is from that decision.

There are altogether seven grounds of appeal filed on behalf of the appellant.

The first complaint in the first ground of appeal relates to the identity of the subject matter in dispute between the parties. It was the contention of the appellant's counsel that while the plaintiff's claim related to No.52A, Aiyetoro Street, the defendant's case was that the plaintiff's husband sold his property at No. 52A, Bale Street to him.

While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land to which his claim relates - Kwadzo v. Adjei (1944)10 W.A.C.A. 274, in this case, in my view, on the facts before the trial court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue if, and only if the defendant in his statement of defence made it one. See Ezeudu v. Obiagwu (1986) 2 N.W.L.R. (Pt.21) 208 at 210. There is nothing in the pleadings that suggests that the identity of the subject matter of the dispute between the parties was in issue. At the trial the plaintiff gave evidence and said that on her return to Lagos from the East, she went to the house and met the defendant there who claimed to have bought the house from one Ibo. The defendant, in his own evidence said it was the plaintiff's husband that sold the property to him, and added further that before the transaction was concluded, he was taken to the house which he inspected. Throughout the trial the identity of the house was not in issue as the learned trial Judge rightly observed in his judgment at p.78, lines 31-34 of the record where he said:

I must say that the identity of the land in dispute is not in question as both sides agreed that the land is situate at 52A, Bale Street, Aiyetoro, Ajegunle.

It was further contended in the first ground of appeal that the Court of Appeal was in error when it held that Exhibits D2A, D2B, D2C and D2E do not refer to the house in dispute. This was no doubt a reference to the observation of the Court of Appeal at p.170 lines 6 - 20 of the record where that Court said as follows:

Coupled with this is the fact that Exhibits "D2A", "D2B", "D2C" and "D2E" with which the respondent sought to prove that Stephen Nwamara got the land in dispute from Ojora Chieftaincy Family, on their faces, do not refer to Plot 52A, Bale Street, Aiyetoro in dispute at all, and oral evidence is not advisable (sic) to connect them. Yet the learned trial Judge relied upon them to destroy the effect of Exh. P11, appellant's receipt from Ojora Chieftaincy Family for the year 1967. On a proper direction the learned Judge should have held that Exhs. "D2A" – "D2E" have no nexus with the land in dispute. On this state of evidence, oral and documentary, I am satisfied that if the learned Judge had considered all the evidence properly he would have found that the respondent did not establish any lawful connection with the land in dispute.

A careful perusal of Exhibits "D2A" to 'D2E" shows at once that the observation of the Court of Appeal quoted above was absolutely correct. Exhibits "D2A" – "D2E" were supposed to be receipts issued by the Ojora Chieftaincy Family in respect of annual rents of the lease but there is nothing in any of them to show that the payment was in respect of a particular house at Bale Street, Aiyetoro as in each case, payment was said to have been made in respect of 'lease due for land 1 Plot 50 x 100 for the year …….. at Bale Street, Aiyetoro. Furthermore, each receipt was made in the name of "Stephen Nwamara" which was not the name of the plaintiff's husband who was said to be the owner of the property. lam therefore in complete agreement with the Court of Appeal that there is no nexus between the exhibits and the subject matter in dispute between the parties. I see no substance in this ground of appeal.

It was contended in the second ground of appeal that the Court of Appeal was wrong to have interfered with the trial court's findings of fact when there was no valid ground existing in the case to justify such interference. In this case the record show clearly that the Court of Appeal was not unmindful of the principles of law enunciated in numerous decisions of this Court which set out clearly various circumstances under which an appellate court may justifiably interfere with the trial court's findings of fact. In this regard the Court of Appeal at p.167 top 168, lines l - 26 of the record said as follows:

It is not the function of this Court, being an appellate court to substitute its own views for those of the trial court, particularly where the issue depends on credibility of witnesses Ogbero Egri v. Ededho Uperi (1974) N.M.L.R. 22. I must however point out that nothing in this case depended on credibility of witnesses. See B also Lawal Buraimoh Fatoyinbo & Ors. v. Seliatu Abike Williams alias Sanni & Ors. [1956] SCNLR 274; (1956)1 F.S.C. 87. But as stated in that report, relying upon the opinion of Lord Thankerton in Watt or Thomas V Thomas (1947) A.C. 484 at pp.487 - 488:

The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then be at large for the appellate court.

See also on this Lengbe v. Imale (1959) N.R.N.L.R. 325; [1959] SCNLR 640.

So although ascription of probative values to evidence is a matter primarily for the court of trial and interference by an appellate court with respect to issues of fact is by law confined to rather narrow and limited dimensions, the appellate court has a right, indeed a duty, to intervene when it is unmistakably satisfied that the trial Judge has not taken proper advantage of his having seen and heard the witnesses. Dealing with some circumstances in which an appellate court may interfere, the Supreme Court in Oladipo Maja v. Learndro Stocco (1968) N.M.L.R. 372, held, per Ademola, C.J.N. at p.378:

We have sufficiently reviewed the position of the law in other cases which came before this Court and a few authorities need be referred to here all indicating that where the facts found by the Court of trial are wrongly applied to the circumstances of the case or where the inference drawn from those facts are erroneous where the findings of facts are not reasonably justified or supported by evidence given in the case the Court of Appeal is in as good a position as the trial court to deal with the facts and to make proper findings.

I wish to refer to only one more decided case, namely: Alhaji A.W. Akihu v. Joseph Opaleye & Anor. (1974) 11 S.C. 189, at pp.197 and 203. I shall apply the above principles in this case.

I am of the view that the Court of Appeal correctly set out the principles of law applicable and rightly interfered with the decision of the trial court as, in my view, this is one case in which it can be truly said that the trial court did not make use of the advantage of seeing and hearing the witnesses who testified before it. Although the learned trial Judge stated in his judgment that he had considered all the evidence adduced before him before arriving at his decision, the record shows clearly that he had not done so. It is, for example, clear on the record that the evidence of p.w.4, who claimed to have lived as a tenant, in the plaintiff's house for seven years was not considered at all by the trial Judge. That evidence can be found at p.54 of the record where the witness testified as follows:

I know plaintiff witness 1 & plaintiff witness 2, I am their tenant. I paid the rents to plaintiff witness 2, the husband. The land plaintiff witness 1 owns the house. When I paid my rent I was issued with a receipt. I stayed in the house. I have receipts issued to me for the period I lived in the house. I tendered the receipts at the Ajeromi Court and they have not been returned to me. I was told that the receipt had got lost. When we were living together the plaintiff went home during the civil war crisis. At the time the plaintiff witness 2 was going, he called us to inform us that he is handing over the house to one Sule.

Sule was living with us in the house together. The house is situate at 52A Bale Street, Aiyetoro, Ajegunle. Sule is a Yorubaman. Plaintiff witness 2 did not inform me that one Jacob Owoamanam is to take care of the house. He did not also tell me that they are selling the house.

After they left, the soldiers came to the house ejected all of us after telling us that the house was "Ibo house." I went my own way. At the time plaintiff witnesses l and 2 left I never saw the defendant at the premises. Plaintiff witness 1 and plaintiff witness 2 are the owners of the house to my knowledge.

This witness was of course cross-examined at the end of his testimony but there is nothing to suggest in his answers that his claim that he was a tenant of the plaintiff in the house in dispute for seven years was seriously challenged. In any case the whole of his testimony was completely ignored by the trial Judge in his judgment. In such circumstances, a Court of Appeal would, in my view, be failing in its duty if it did not interfere with the decision of a trial court which was obviously not based on the whole of the evidence adduced by the parties. I see no substance in this complaint.

Ground 3 reads:

The judgment of the Court of Appeal are (sic) wrong in law and in fact in that the said judgment overlooked and failed to consider the finding of the learned trial Judge that the plaintiff/respondent did not avail herself of the opportunity of adducing oral evidence from the Ojora Chieftaincy Family who were alleged to be the plaintiff's landlord and who could positively prove her title.

Again the issue before the trial court was not. as the Court of Appeal correctly identified, whether the land was acquired from the Ojora Family by the plaintiff. The issue was whether the plaintiff was the owner of the house which the defendant claimed belonged to the plaintiff's husband who had sold it to him. In fact both parties would appear to have agreed that the land originally belonged to the Ojora Chieftaincy Family. In this regard the defendant tendered Exhibits D2A to D2E which he claimed were issued by the Ojora Chieftaincy Family relating to the same property. In the circumstances, I do not see any need or necessity for the plaintiff to call a witness from the Ojora Chieftaincy Family to prove the grant to her.

It was complained in the fourth ground of appeal that the Court of Appeal was wrong when it held that the evidence of p.w.4 was not challenged when the record shows that at the end of his examination-in-Chief, he was cross-examined. I see no substance in this complaint. As stated earlier the respondent's complaint in the Court of Appeal was that the whole of the evidence of p.w.4 was never considered by the trial court, and the court held, correctly in my view, that the complaint was substantiated.

In ground five, it was submitted that the Court of Appeal misdirected itself when it held that the trial court failed to make a specific finding as to \whether Exh. P12 - the so-called power of Attorney was a forgery.

As stated earlier the defence of the defendant was that the property in question belonged to the plaintiff's husband - p.w.2 - who had sold it to him. He also said that p.w .2 gave a Power of Attorney to his brother called Jacob Nwamara who. on tendering the Power of Attorney, was paid the purchase price of the house. The plaintiff challenged the genuineness of Exh. P12 and called an expert witness - p.w.5. The evidence of this witness, which can be found on p.56 - 58 of the record, shows clearly that Exh. P12 - the so-called D Power of Attorney relied upon by the defendant, was a forgery. But did the trial Judge make any finding on this crucial issue? No. He merely commented as follows:

If indeed Exhibit P12 is a forgery it has not been shown that it was prepared by the defendant, and I do not believe that Jacob & Stephen did not exist either nor could their existence have been concocted up, otherwise, how could the defendant have been able to come by all the documents exhibited, which belong to the plaintiff's husband and which relate to his title. Were these documents stolen or forged too?

The above portion of the learned trial Judge's judgment shows clearly that he did not make a specific finding on the issue of genuineness of Exh. P12 on which the defendant heavily relied. If the learned trial Judge had adequately considered the expert testimony of p.w.5 - which incidentally virtually uncontradicted, and if he had also considered the discrepancies in the names of the 2 p.w's alleged brother - Stephen Nwamara and the name of 2 p.w., and the evidence of the plaintiff and that of her husband that Stephen Nwamara and Jacob Nwamara were unknown to them, and if the learned trial Judge had, in addition, considered the fact that Exh. P12 speaks of a house of 8 rooms and one shop and the plaintiff's evidence that her house contained 12 rooms, the learned trial Judge would have inevitably come to the conclusion that Exh. P12 was a forgery and that Stephen and Jacob Nwamara were fakes. In the circumstances he should have rejected Exh. P12 on which the defendant substantially based his claim.

I see no substance whatsoever in ground 6 of the appellant's grounds of appeal relating to the observation of the Court of Appeal that in this country it would not matter much if an average Nigerian who pays rates on behalf of his wife is issued with a receipt either in his own name or that of the wife's name.

It was submitted in ground seven that the Court of Appeal was in error when it held that if the learned trial Judge had adequately considered all the evidence before him, he would have come to the conclusion that the respondent became a tenant of the Ojora Family since 1956 when Exh. P2 tendered by the respondent showed that she in fact became a tenant of the said Ojora Family in 1966.1 see no substance in this submission. Exh. P2 is a certified copy of the abortive proceedings in the Ajeromi Grade 'B' Customary Court and it is obvious that appellant's counsel was referring to the evidence of one AIhaji Jimoh Akindele Ojora given in that case. But the law is settled that evidence of a witness given in earlier proceeding is not relevant in a later trial except for the sole purpose of discrediting such a witness on cross-examination - Ariku v. Ajiwogbo (1962) 1 All N.L.R. 629. See also Alade v. Aborishade [1960] SCNLR 398; 5 F.S.C. 167 at p.171. As stated earlier the respondent gave evidence at the trial and was cross-examined. But there is nothing on the record to show that she was ever confronted with a contradictory evidence which she had given in the Customary Court relating to when she first became a tenant of the Ojora Family.

It was for the above reasons that I dismissed the appellant's appeal on the 16th day of January, 1990, against the decision of the Court of Appeal reversing the judgment of the trial court.

Judgment delivered by

Nnamani. J.S.C.

On 16th January, 1990, this appeal came before this Court. Having read the record of proceedings and after hearing learned counsel to the appellant, Mr. S. Abayomi, learned counsel to the respondent, G. F. Akinsoto, Esq. not having been called, I was satisfied that the appeal was totally devoid of merit and I dismissed it. I indicated that I would give my reasons for that judgment today. I now give the reasons. I had before now had a preview of the reasons for judgment just delivered by my learned brother, KAWU, J.S.C., and I entirely agree with them and adopt them as my own.

This was a case in which the judgment given in favour of the appellant in the High Court was set aside by the Court of Appeal. It was contended before us in one of the grounds of appeal that the Court of Appeal ought not to have interfered with the findings of fact made by the trial Judge. It is trite now that evaluation of evidence and the making of findings of fact are in the domain of the trial court. The appellate court can only interfere on certain principles. Where what is involved is not the credibility of witnesses, and it is clear that the trial Court has not properly evaluated the evidence before him, the Court of Appeal is entitled to interfere. From the records, this was clearly a case in which the learned trial Judge failed to evaluate some crucial evidence before him. Moreover, some of his findings of fact were perverse. I shall only refer to the evidence of P.W.4 and P.W.5.

P.W.4 gave evidence that the respondent and her husband, P.W.2, were the owners of the house and that he was a tenant of one room in the premises for 7 years before the civil war. Although this evidence was not seriously challenged in cross-examination, it was totally ignored by the trial Judge. The evidence of P.W.5 was even more crucial. P.W.5 was the handwriting expert called by the respondent on the authenticity of Exhibit P.12. A Exhibit P.12 formed the basis of the defendant/appellant's case. The so-called power of attorney was according to him given by one Stephen Nwamara to his brother Jacob Nwamara to authorise the latter to sell the property in dispute. The appellant claimed he bought the property pursuant to Exhibit P.12. The appellant claimed at the trial that this Stephen Nwamara was the respondent's husband. This was denied by P.W.2 who gave his name as Cyprain Duru Owoamanam.

The trial Judge did not evaluate the evidence of P.W.5 which was to the effect that Exhibit P.12 was a forgery. All he said about that evidence was that even if Exhibit P.12 was a forgery, it could not have been prepared by appellant. He did not evaluate Exhibit p.12 either. He ought to have adverted to the fact that P.W.2 having denied Exhibit P.12 the onus was on appellant to have established due execution. See Section 99 of the Evidence Act. If the learned trial Judge had evaluated Exhibit P.12, he would have seen that the property in relation to which the so-called power of attorney was issued was said to be 52A Bale Street, Ayetoro, Apapa Ajegunle, while the property in dispute in this Suit was 52A Aiyetoro Street, Ajegunle. The trial Judge would also have found that the executants of the so-called power of attorney were Stephen And Jacob Nwamara who respondent and her husband, Cyprain Duru Owoamanam said are not known to them.

I am satisfied that if the learned trial Judge had adverted to all these matters, he would have had no difficulty in arriving at the conclusion that Exhibit P.12 was a forgery and that the bottom had been knocked out of appellant's claims.

It was for these reasons, and the more detailed lead reasons for judgment, that I dismissed the appellant's appeal and made all the consequential orders.

Judgment delivered by

Uwais. J.S.C.

I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Kawu, J S. C. I entirely agree with the reasons. As it was for the same reasons that I agreed on the 16th day of January, 1990, that the appeal had no merit and that it should be dismissed with N500.00 costs to the respondent; I do not wish to add anything more.

Judgment delivered by

Agbaje. J.S.C.

On 5/1/90 I dismissed the defendant's appeal summarily. I indicated then that I would give my reasons for doing so today. I now proceed to do so.

The plaintiff claimed from the defendant possession of the house lying and known as 52A Aiyetoro Street, Ajegunle, the sum of N1,270.00 being special damages suffered by the plaintiff when the defendant without lawful authority collected rents on the 11 rooms in the said house between July, 1968 and December, 1971; and an injunction restraining the defendant from going on the premises to collect rents.

As to the identity of land in dispute the learned trial Judge held as follows:-

I must say that the identity of the land in dispute is not in question as both sides agreed that the land is situate at 52A, Bale Street, Ayetoro, Ajegunle.

The lower court, the Court of Appeal, affirmed this finding. I too agree with the two courts below on this point.

It is clear from the plaintiff's statement of claim and the evidence in support thereof that she was basing her claims against the defendant on her possessory title to the house in dispute. It is her case that she took a lease of the land upon which the house stands from Ojora family and subsequently built the house on it. The pith of the defence of the defendant to the plaintiff's claims against him is that he bought the house in question from the plaintiffs husband one Stephen Nwamara sometime during the last civil war in Nigeria and that he has remained in possession thereof since that time.

There was evidence for the plaintiff which was unchallenged that she started the building in question in 1956 and completed it in 1960. There was evidence too for the plaintiff, again unchallenged, that she and her husband occupied two of the eleven rooms in that house and that the remaining 9 rooms were let out to tenants. The plaintiff left the house in 1966 for the Eastern part of Nigeria when the last civil war broke out. Her husband joined her in 1967 having, at the request of the plaintiff, looked after the house during the preceding year.

It is clear that for the plaintiff to succeed in her action against the defendant she must prove that she has a better title to the land and house thereon than that which the defendant has. The claim for possession by the defendant postulates that the defendant is in possession of the landed property. So the onus is clearly on the plaintiff to show that the defendant is not the owner of the property and furthermore as I have said above that she has a better title to the land than that which the possession of the land by defendant confers on him.

It is, as I said above, the defendant's case that she bought the house in dispute from Stephen Nwamara, the plaintiff's husband. So the defendant is claiming the land through Stephen Nwamara. In other words the defendant is claiming the land through the plaintiff's husband whom he calls Stephen Nwamara.

The plaintiff's husband gave evidence as P.W.2. He gave his names as Cyprian Duru Onwoamanam. He confirmed the plaintiff's possessory title to the land in dispute. He denied ever bearing the names Stephen Nwamara. He denied ever selling the land in dispute to the defendant. In his evidence the defendant admitted it that the plaintiff's witness 1, who gave his name as Cyprian Onwoamanam is the plaintiff's husband and that it was this same man who sold the house in dispute to him, and that it was at the request of the plaintiff's husband that he the defendant paid the purchase price of N1,000.00 to one Jacob to whom the plaintiff's husband had given (1) a power of attorney to act on his behalf in the transactions and (2) the documents of title to the land. According to the defendant it was this Jacob who eventually executed the purchase agreement, presumably on behalf of the plaintiff's husband, in favour of the defendant. It was this Jacob, again according to the defendant, who handed over to him the various documents of the plaintiff's husband relating to the latter's title to the land in question. According to the defendant these documents are:

All the documents, the building plan and some receipts of monies paid to Ojora Family were handed over to me I produced the documents, sought to be tendered No objection

Building Plan Approved on 10/11/59 is exhibit D2.

We have only the ipse dixit of the defendant for it as to the sale of the land in dispute to him by the plaintiff's husband. Jacob was not called as a witness. In all fairness to the defendant it must be mentioned that he said that he no longer knew his (Jacob's) where-abouts.

The defendant gave evidence that he took possession of the power of attorney which the plaintiff's husband gave Jacob to act for him in the sale transaction. This document according to the defendant is Exh. P12 from the plaintiff. Exh. P12 reads thus:-

"EXHIBIT "P12"

SUIT NO. LD/1381/75

20/3/81

F. C. ONWOAMANAM

            AND

S. FATUADE 7/6/67

This is to certify that Mr. Stephen Nwamara with my hand writing permits my Brother Jacob Nwamara to take care of my house completed consisting of eight Rooms and One Shop at 52A Bale Street Ayetoro Apapa Ajegunle, or to sell the completed of the eight Rooms and One Shop, and one opel motor the number of the motor is W.A. 3229, and One motor car E.A. 1421. four hen and one dog, this ir the number of my plan 679/59, dated of approved 10/10/59

3rd Stamp, enclosed here

Nigeria Oyo Carver.

Exh. P.12 was put in evidence by the defence counsel, Mr. Abayomi, at the trial, through P.W.1, plaintiff's husband as the authority the witness gave his brother Jacob to sell the land in dispute to the defendant, which allegation the witness denied.

The significant thing to note about Exh. P.12 is this: Whilst the plaintiff led evidence that the signature on Exh.12 was a forgery, the defendant made no attempt to prove its execution by the plaintiff's husband, P.W. 1. In this regard, I refer to Section 99 of the Evidence Act which says:

99.    If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.

There is no doubt that on the uncontradicted evidence for tile plaintiff, she has established her possessory title in the house in dispute prior to the time the defendant came on the land and remained there as a result of which the present action was taken against him by the plaintiff. The defendant led no evidence to prove the execution of Exh. P12 by the plaintiff's husband. So, no tribunal properly directed as to the relevant law can hold that it is the deed of the plaintiff's husband. This coupled with evidence of the latter that the house in dispute belongs not to him but to his wife knocks the bottom out of the defendant's case who is claiming the house through that witness. In effect the defendant has not established any title whatsoever to the landed property in dispute. So when the defendant came on the land, he did so as a trespasser.

In sum the plaintiff's possessory title to the land in dispute is better than the defendant's mere assertion of title to the land, for, in the circumstance, the latter has no title to the land at all.

In my judgment the trial court was wrong in dismissing the plaintiff's claim and the lower court was right in setting aside that judgment and entering judgment for the plaintiff.

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Kawu, J.S.C., which I have had the benefit of reading in draft that I dismissed the defendant's appeal on 5/1/90.

Judgment delivered by

Wali. J.S.C.

On 16th January, 1990, this appeal was heard by this Court, and after hearing learned counsel in elaboration of their written briefs of argument for and against the appeal. I summarily dismissed the appeal and reserved my reasons for doing so to today. Since then, I have seen an advance a copy of the lead Reasons for Judgment of my learned Brother, Kawu, J.S.C., I agree with them. I adopt them in toto as mine.

It is not disputed that the property in controversy i.e. plot No.52A Aiyetoro Street, Ajegunle, Originally belonged to the Ojora Family. It was leased to the plaintiff/respondent by the same family in 1956 for £300 (N600.00 under native law and custom with an annual ground rent of N2.50k. Thereafter, she was Immediately put into possession. She built a house containing 11 rooms on the portion of the land and which was completed in 1960. After completion, she and her husband occupied 2 rooms while the remaining 9 were let to rent-paying tenants. She was collecting the rents from her tenants through one Sule Atanda.

On the outbreak of hostilities in the country in 1966, she fled to the defunct Eastern Nigeria. She left the house under the care of her husband, Cyprian Duru Onwoamanam (P.W.2) who also in 1967 for the same reason as did his wife, the plaintiff fled to Eastern Nigeria and left the house under the care of Sule Atanda. The plaintiff/respondent had been paying rates to Ajeromi District Council up to the time she fled to Eastern Nigeria.

At the end of the hostilities early in 1970, the plaintiff/respondent returned to Lagos she went to her house at 52A, Aiyetoro Street to claim the accrued rents from the tenants. It was then that she was told that the house belonged to appellant as he had already bought same for N1,000.00 from P.W.2 (her husband). She reported the matter to the police who did nothing to enable her recover possession of the house. She then started proceeding in the Customary Court to recover possession of the house. When the matter was part-heard in the customary court, jurisdiction to try land matters was taken away from those courts and she was told that the case would be transferred to the High Court for trial de novo. When there was a delay affecting the transfer, the plaintiff initiated the proceeding now the subject of this appeal in the Ikeja Division of Lagos High Court. Her claims before the Lagos B High Court, Ikeja Division was dismissed by Omololu Thomas, J. (as he then was).

Against the judgment of the High Court, the plaintiff appealed to the Court of Appeal, Lagos. The Court of Appeal, on the grounds of appeal filed and argued before it, reviewed the evidence and the findings of the trial court and concluded that the findings were perverse vis-a-vis the evidence adduced before the trial court, allowed the appeal, set aside the judgment of the trial court and in place thereof entered judgment for the plaintiff for possession of the house in dispute at 52A Aiyetoro Street, Ajegunle with N1,270.00 as special damages and being rents collected thereon from July 1968 to 1971. She was also granted injunction as prayed in her Statement of Claim.

The defendant/appellant has now appealed to this Court.

From the pleadings and the evidence adduced, there was no need for the plaintiff to call any member of Ojora family to prove ownership of plot 52A Aiyetoro Street, Ajegunle and its identity, as the identity was not in dispute. On title, the defendant, on his own admission said he bought the house from the plaintiff's husband - P.W.2 who in his testimony supported the plaintiff's claim that the house belongs to her.

A consideration of some crucial aspects of the evidence adduced on both sides leaves one in no doubt that the judgment of the learned trial Judge cannot be sustained as these were not considered and evaluated by him. This resulted in obvious miscarriage of justice. Such pieces of crucial evidence are that of P.W.2, P.W.4, P.W.5, Exhibit P12 and P14. These are pieces of evidence that are very crucial to a proper and just determination of the case. Where a trial court fails to consider and evaluate material evidence essential to a proper and just determination of the case, the Court of Appeal is in as much a good position as the trial court to consider and evaluate such evidence and make proper findings - See Christopher Okolo v. Eunice Uzoka (1978)4 S.C.77 at 86; Fashanu v. Adekoya (1974)1 All N.L.R. (Pt.1) 35 and Abusomwan v. Mercantile Bank (Nig.) Ltd. (1987) 3 N.W.L.R. (Pt.60) 196 6 at 207. The Court of Appeal is justified and equally right in intervening by reconsidering and assessing the whole evidence, particulary that of P.W.2, P.W.4. P.W.5, Exhibits P12 and P14 and coming to the conclusion that –

The appellant proved grant to her by Ojora Family since 1956; that she was in possession from then till 1967 or 1968, that she let part of it to rent-paying tenants for at least seven years before she had to go to her home town Okigwe in Imo State during the national crisis. He would have easily found that the appellant proved ownership by grant according to custom and long possession thereafter.

.... I am satisfied that so many grave errors have been committed by the learned trial Judge that make it necessary for this court to intervene.

It was for these and the more elaborate reasons in the lead Reasons for Judgment of my Lord, Kawu, J.S.C., that I concurred in the unanimous judgment of this Court given on 16th January, 1990, dismissing the appeal. I also abide by the consequential orders contained in the lead Reasons for Judgment.

Appeal dismissed

Counsel

S. Abayomi                             ........                     For the Appellant

G. F. Akinsoto              ........                     For the Respondent