Alhaji Salami O. Aderounmu & Anor V. Emmanuel Olajide Olowu (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C

This is an appeal from a judgment of the Court of Appeal (Ibadan Division: Ogundare, JCA, Ogbuagu, JCA (as he then was), and Muhammad, JCA) dated 16th April, 1992, whereby an appeal to the Court of Appeal, taken from a decision of the High Court of Oyo State (Adeyemi, J.) by the appellants in this appeal, (defendants at the High Court), was dismissed. On 4th April, 1986, the High Court entered judgment for the respondent in this appeal, (plaintiff in that court). By the judgment, the respondent’s claim for a declaration of a statutory right of occupancy to a parcel of land at Ikolaba village, lbadan; damages for trespass and injunction, was granted and, the appellants’ counterclaim for a similar relief was dismissed. At the conclusion of oral hearing of this appeal on 23rd November, 1999 this court dismissed the appeal and announced that reasons for the judgment would be given at a later date. My reasons now follow.

This case arose because, as alleged by the respondent and found by the trial judge, the appellants, sometime in 1982, entered into land which had always been in the possession of the respondent from the time, sometime in 1964, when he purchased it from the original owners, the lkolaba family, up to the time of the entry thereon by the appellants. For the declaration of a statutory right of occupancy which he claimed, the respondent relied on a grant to him by the Governor of Oyo State of that right sometime in 1980, and witnessed by a Certificate of Occupancy dated 13th November, 1980. The respondent’s case was that prior to the grant of statutory right of occupancy the land was vested in him by virtue of a purchase of the land from the Ikolaba family through their representatives who were given a power of attorney dated 17th January, 1964. By a deed of conveyance dated 3rd July, 1964 the attorneys, acting pursuant to the power of attorney and on behalf of the lkolaba family, conveyed the land to the respondent. The appellants, who are members of the lkolaba family, also counterclaimed for similar relief as the respondent. They claimed to have acquired a prior title to the land by virtue of individual grants made to them sometime in 1954 by the lkolaba family. They alleged that they have been in continuous possession of the land from the time of their several grants. The butt of the appellants’ case at the trial, both in regard to their defence and to their counter-claim, was that the power of attorney relied on by the respondent was a ‘fake’ and was not valid. At the trial, understandably, the issues that came to the fore were: first, whether the person who conveyed the land to the respondent held a valid power of attorney from the lkolaba family; Secondly, whether the respondent was in possession of the land as claimed by him; and, thirdly, whether the appellants had any grants of the land as claimed by them.

All these were, evidently, questions of fact. The trial judge, after a careful and, I dare say, painstaking consideration of the evidence, found that the power of attorney was valid and was not a ‘fake’ as alleged by the appellants. He found that the respondent was in possession of the land from the time he purchased it up to the time when the appellants trespassed on it. He rejected the case of the appellants that they had grants of the respective plots of land they laid claim to from the Ikolaba family, describing almost all, if not all, of the witnesses called by the appellants as untruthful witnesses. Thus, all the questions of fact in controversy were resolved by the trial judge, who had the advantage of seeing and hearing the witnesses, against the appellants. In the result, he gave judgment as earlier mentioned.

On their appeal to the Court of Appeal, the appellants contended that the trial judge was in error in holding that the power of attorney was valid; that he misplaced the burden of proving due execution of the power of attorney on the appellants; that he did not properly evaluate the evident and, that he should have found that the appellants had grants from the Ikolaba family. All these contentions were articulated in the issues for determination formulated in the appellants’ brief of argument in the court below.

The Court of Appeal, on an objection raised by counsel on behalf of the respondent, struck out three of the appellants’ thirteen grounds of appeal, namely: grounds 2, 6 and 10, holding that they were incompetent on the ground that each of them complained of error in law and misdirection of fact at the same time. In ground 2 it was complained that the trial judge “misdirected himself in fact and in law”, while in grounds 6 and 10 it was complained that he “erred in law and on the facts”. In each of the grounds particulars of error alleged were set out. In dismissing the appellants’ appeal Ogundere, JCA, who delivered the leading judgment of the court below, with which the rest of the court agreed, said:

“As to the Certificate of Occupancy, Exhibit 4, a Land Certificate of Title (sic) confers on the holder a prima facie evidence of title to the parcel of land in survey plan attached to it: Onayemi v. Balogun (1972) 1 All NLR (Pt.1) 26, 30, 33. But if the person obtained a certificate of title based on a conveyance from a person not entitled to the land or on a forged conveyance that certificate will be void or at least voidable: Kareem v. Ogunde (1972) 1 All NLR (Pt. 1) 73,76,77. In this instance Exhibits 1 and 2 on which the validity of the Certificate of Occupancy rest have not been successfully impugned by the defendants/appellants,”

The Court of Appeal, consequently, held that the trial judge was right in his decision ‘to award the land to the plaintiff and dismissed the appellants’ appeal. On this further appeal,the appellants argued that the court below was in error in holding that the power of attorney and the deed of conveyance had not been successfully impugned: that that court was in error in striking out three of the appellants’ grounds of appeal; and, their counter-claim had not been adequately considered. We were urged to consider the evidence of the 5th defence witness, one Jimoh Abioye, and come to the conclusion there from that the power of attorney was not genuine.

At the trial, in the court below and on this appeal, the appellants have put at the forefront of their case, an alleged invalidity of the power of attorney which was admitted in evidence as exhibit 1 at the trial. The only ground on which the validity of the document was challenged at the trial being that it was not genuine. the trial judge devoted some time to a consideration of that aspect of the case. He adverted to the fact that the document, on the face of it showed that it was prepared by a lawyer and was executed before a magistrate,after it had been read and interpreted to the makers, who were not literate,before they affixed their thumb-impressions on it. He adverted to the admission by several of the appellants’ witnesses that those who were mentioned in the document as having executed it, were members of the Ikolaba family. Finally, he had regard to the presumption raised by section 115 of the Evidence Act and came to the conclusion that that presumption had not been rebutted. At the end, he was emphatic and unequivocal in his conclusion that the power of attorney,exhibit 1 was validly executed and was a genuine document.

On this appeal, the appellants clung to a narrow thread, which can only be an illusory lifeline, when they relied on assertions made by the 5th defence witness, Jimoh Abioye, in, examination in chief, that: “I did not give anybody power of attorney.” and, under cross-examination, that: I did not give the power of attorney in exhibit I to anybody.”, as basis for the submission that the evidence of that witness rendered improbable the genuineness of the power of attorney. It is obvious that the case of the respondent was not that an individual member of the family, such as Jimoh Abioye is (or, was), gave a power of attorney. Rather, it was, that the family did. What would have been of benefit to the appellants’ case was clear and unequivocal evidence by that witness that he did not participate in the execution of the document and that the thumb-impression, thereon put against his name, was not his own. When an allegation of forgery of a document, or, for that matter, or a criminal acts made in a civil proceeding, evidence that would discharge the burden of proof on the person who made the allegation, must be clear and unequivocal. When evidence intended to discharge that burden is ambiguous or is capable of several interpretations, not all pointing to the criminal act alleged, the burden cannot be said to have been discharged. In this case, the evidence of Jimoh Abioye, quoted above, was, at best, ambiguous. The trial judge was right to have ignored it. The appellants’ argument that the witness gave evidence denying being party to the power or attorney was based on an inexact statement, or misconception, of the evidence he gave.

It was clear that the trial judge properly appreciated the burden which was on the appellants: first, to rebut the presumption of due execution of the power of attorney and secondly, of proving that the document was a forgery. Section 18 of the Evidence Act is clear in its provisions that:

“The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public, or any count judge, magistrate was so executed and authenticated.”

The presumption of due execution embraces a presumption that the document was in fact executed by the persons mentioned thereon as the makers of the document. That the presumption is rebuttable gives the person alleging the contrary of what is presumed the liberty to prove it. In this case the appellants had an additional burden of proving that the document was a forgery. That is what a reasonable person would understand their description of the document as a ‘fake’ to mean. The case of Jules v. Ajani (1980) NSCC 222 has clearly established, quite a while ago now that where in a claim for declaration of title to land the defendant alleges that the document relied on by the plaintiff for the title he seeks is a forgery, the burden is on the defendant who so alleges to prove that fact. Notwithstanding the general onus which rests on the plaintiff to prove his entitlement to the declaration he claims, the evidential burden of proving certain facts occasionally shifts to the defendant. Such is the burden of proving the allegation that the document which the plaintiff relies on is a forgery. In the application of the general principle that he who alleges must prove, there is no distinction between a plaintiff and a defendant. In placing the onus on the appellants to rebut the presumption of due execution or the power of attorney and of proving that it was a fake’ , the judgment of the trial judge cannot at all be faulted. The court below was right in upholding that aspect of the judgment.

The second main branch of the appellants’ case is that the court below was in error in striking out three of their thirteen grounds of appeal. The court below was of the view that those grounds of appeal were incompetent because, as the truth was, in each of them were alleged error in law and misdirection in fact. As earlier stated, each of those grounds had, subjoined to it, particulars stating what was alleged to be the error in law, or, as the case may be, the misdirection of fact or error in fact, complained of. Thus, any careful reader of the grounds would not be misled or left in any reasonable doubt as to what the appellants were complaining of and the nature of their complaints. Notwithstanding that fact, the court below relied on the cases of T.A.S.A Ltd. v. A. S. Cargo Airlines (Nig.) Ltd(1991) 7 NWLR (Pt. 202) 156, 175; and Ogbechie v. Onochie (No.1) (1986) NWLR (Pt.23) 484, 493. Those cases are of course no authority for the step taken by the court below since they do not deal with incompetence of grounds of appeal. The court below mentioned in their judgment, as did counsel for the respondent, the case of Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718, 744 where Nnaemeka-Agu, JSC expressed an opinion that: