Aiyedoun Jules Sule V Raimi Ajani (1980) LLJR-SC

Aiyedoun Jules Sule V Raimi Ajani (1980)

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My Lords, the Plaintiff/Respondent (hereinafter referred to in this judgment as Respondent) filed a writ of Summons in the High Court of Western State, Ibadan against the Defendant/Appellant (hereinafter in this judgment referred to as Appellant) claiming as follows:

“1. The Plaintiff”s claim against the Defendant is declaration of title to all that piece or parcel of land known as Plot 85, Okeremi Layout, Atanbiolu, Mokola, Ibadan and particularly described and identified on the plan attached to a deed of conveyance dated the 20th day of March,1956 and registered as No. 36 at page 36 in Volume 134 of the Lands Registry at Ibadan.

2. N500.00 being damages for trespass on the said land.
3. Injunction restraining the Defendant his servants,and agents from further trespass on the said land.”

Pleadings were ordered, filed, and delivered. As some paragraphs of the pleadings are very pertinent to this appeal, I propose to set them down.

In paragraph 3 of his Statement of Claim, the Respondent had averred as follows:

“3. By a deed of conveyance dated the 20th day of March, 1956, registered as No. 36 at page 36 in Volume 134 of the Lands Registry in the Office at Ibadan, Messrs Akinwale Ajao, Mustafa Akinode and Busari Alamu all of Okeremi House, Okunola Street, Ibadan sold plot 85 of Okeremi Layout, Atenbiolu, Oyo Road, Ibadan to Miss Obong Anwan Obong (deceased) late of Jericho Nursing Home Ibadan. The plan of the land in dispute is demarcated and delineated in Plan No. L&L/A.692 dated the 20th of December 1956 filed with this Statement of Claim”

In reply, the Appellant in paragraphs 3, 10 and 11 of his Statement of Defence had averred as follows:

“3. The Defendant denies paragraph 3 and states that

(a) the deed of conveyance dated the 20th day of March 1956, and registered as No. 36 at page 36 in Volume 134 of the Lands Registry in the office at Ibadan purported to have been executed by Akinwale Ajao, Mustafa Akinode and Busari Alamu (the last two since deceased) in favour of Miss Obong Anwan Obong, was a forgery organised by one S. O. Lajumoke, a former Attorney of the said Akinwale Ajao and two others.

(b) the said deed of conveyance referred to in paragraph 3(a) above was one of those set aside by this Honourable Court in Suit No. 1/144/57: Akinwale Ajao and two others versus S. O. Lajumoke, on the ground of fraud on the plaintiff by the defendant (S. O. Lajumoke) ……………………

10. The Defendant states that the Plaintiff is a Champertor instigating litigations on building plots in Okeremi Layout, and is at present facing many court actions individually and jointly with others in respect of Okeremi Layout.
11. The Defendant will contend at the hearing that

(a) The Plaintiff’s conduct is tainted with equitable fraud and is prohibited in law . . .”

From the pleadings, it was quite clear that both parties were tracing their root of title to a common owner, the Okeremi Family. At the trial, the respondent, who instituted the action as Attorney for one Elizabeth Okikiolu, a daughter of Miss Odong, gave evidence and tendered the deed of conveyance referred to in paragraph 3 of the Statement of Claim. It was admitted as Exhibit A. It is agreed by all the parties to these proceedings that it was properly received in evidence. He also tendered a Power of Attorney executed in his favour by Elizabeth Okikiolu and it was admitted in evidence as Exhibit F. Other than the Registrar from the Lands Registry at Ibadan, he called no other witness. Exhibit A is a Certified True Copy of the original of that deed of conveyance which the Respondent claimed was lost. The Appellant on his part also gave evidence at the trial and tendered the documents on which he relied for his title – Exhibit C, a deed of conveyance dated 12th April 1957 and executed between one Mallam Yehaya Etamesor and the same Akinwale Ajao, Mustafa Akinode and Busari Alamu. Exhibit D a deed of conveyance in respect of the same Plot 85, Okeremi Layout dated 11.10.72 and executed between him and Mallam Yahaya Etamesor, and Exhibit E the original of the deed of conveyance tendered as Exhibit C. He called as his witness Akinwale Ajao who denied ever executing Exhibit A or any deed of conveyance in favour of Miss Obong and in respect of Plot 85 Okeremi Layout, Ibadan. He admitted under cross-examination that while Lajumoke was their Attorney his family executed conveyances in respect of 21 plots and he did not know all the 21 persons in favour of whom the conveyances were executed though he insisted that the land in dispute was not one of the 21.

The learned trial Judge, Olu Ayoola, J. dismissed the Plaintiff’s claim on the ground that he had failed to prove paragraph 3 of his Statement of Claim and to trace Miss Obong’s purported title to the true and admitted owner. Portions of his judgment clearly indicate that it turned on the question of the absence of evidence of due execution of Exhibit A. On the issue he observed as follows:

“The Defence expressly denied paragraph 3 of the Statement of Claim, which is that the Defendant denied that Akinwale Ajao and two others executed any conveyance in favour of Miss Obong as alleged by the Plaintiff and described the deed upon which the Plaintiff relied as a ‘forgery’. My understanding of the pleadings is that since the Plaintiff averred and asserted that Akinwale Ajao and the two others executed the conveyance No. 36, page 36 in Volume 134 in Miss Obong’s favour, and since the Defendant denied the averment, the onus of proof lies on the Plaintiff, who asserts to prove his assertion . . . in my view the expression in the Defence that the deed relied upon by the Plaintiff was a ‘forgery’ is by way of laying emphasis on the defence’s denial that Akinwale Ajao and the two others had not executed any conveyance . . .

The main question therefore is whether the Plaintiff has proved to my satisfaction that Akinwale Ajao and the two others executed a conveyance in Miss Obong’s favour as alleged in paragraph 3 of the Statement of Claim. In the case before me Akinwale Ajao gave evidence for the Defence strongly denying that he ever executed any conveyance in Miss Obong’s favour as alleged by the Plaintiff.

The Plaintiff (now Respondent before us) appealed to the Federal Court of Appeal, Ibadan. The learned Justices of the Federal Court of Appeal, in a considered judgment delivered by Aseme, J.C.A. allowed the appeal and entered judgment for the Plaintiff (Respondent). They upheld the submission of counsel for the Plaintiff (Respondent) that the learned trial Judge erred in law when he held that a positive finding that forgery had been committed need not be made when by the Defendant’s statement of defence he had claimed that the deed of conveyance in favour of Miss Obong was a “forgery”. They also agreed that the learned trial Judge had wrongly placed the onus of proof on the Plaintiff that the deed of conveyance in favour of Miss Obong was not a ‘forgery’ when it was the Defendant that asserted the forgery and it was not proved as required by law. It is from that judgment that the present Appellant has appealed to this Court.

Learned Counsel for the Appellant filed 22 grounds of appeal but before us abandoned grounds 1, 3, 4, 6, 7, 9 and 12-22 (which were accordingly struck out) leaving grounds 2, 5, 8, 10 and 11. Grounds 2 and 5 which were the only grounds argued before us read as follows:

“2. The Federal Court of Appeal misdirected itself in law in failing to note that the primary onus was on the Plaintiff to prove his case, and that no onus shifted to the Defence until and unless the Plaintiff had first proved his case, which in this case involved Plaintiff’s (since the defence put him to strict proof thereof) proving primarily the due execution of Exhibit A by the persons named therein as having executed it in accordance with the provisions of Section 99 of the Evidence Act.

5. The Federal Court of Appeal erred in Law in reversing the decision of the trial Judge when upon the evidence before the trial Judge the Plaintiff having failed to prove due execution of Exhibit A as required by Sections 99 and 100 of the Evidence Act the Plaintiff failed to prove any right in the Land in dispute as claimed by him”

Mr. Oyegoke, learned counsel for the Appellant, contended that Exhibit A was the basis of the Respondent’s claim for declaration of title and that Respondent must fail unless he proved due execution of the deed. He referred us to Section 99 of the Evidence Act and argued that execution in this case would have been by thumb impressions. He argued that the Respondent ought to have called some members of the Okeremi family so as to prove due execution. He referred to the case of D. O. Idundun and Others v. Daniel Okumagba and Others (1976) 1. N.M.L.R. 200 at 210.

He further contended that there was a finding by the Court of first instance that there is no thumb impression. He claimed that the original of Exhibit A in the Deeds Registry had no thumb impression either. Mere production of documents was not enough he argued. He stated that the issue of forgery did not arise and concluded by arguing that the onus of proof in cases of declaration of title was on the Plaintiff and that it never shifts and referred to the case of Atuanya v. Onyejekwe (1975) 3 S.C. 161 at p.167. He conceded, however, as stated above, that Exhibit A was properly received in Evidence.

In reply, learned counsel for the Respondent, Mr. Odanye, argued that the validity of Exhibit A was being challenged by the Appellant on the ground of its being a forgery. He said that he had tendered Exhibits A and B and none of them had thumb impressions. He referred to paragraph 3(a) and (b) of the Statement of Defence and contended that the Appellant’s pleadings disclosed a complaint of forgery not lack of execution. He argued that it was the primary duty of the Appellant to prove the forgery and mere denial was not enough, and referred to the cases of Ibrahim Khalil Yassin v. Barclays Bank D. C. O. (1968) 1 ALL N.L.R. 171 at 181 and Messrs Lewis and Peat nri Ltd. v. A. E. Akime(1976) 7 S.C. 157.

As it was clear that the main issue to be determined in the appeal was whether there had been due execution of Exhibit A on which the Respondent rested his claims for title, we decided, in exercise of our general powers under Section 22 of the Supreme Court Act, 1960 and Order 7 r.26 of the Supreme Court Rules, 1977, to call for the Registry Copy (which was supposed to be the original of Exhibit A) from the Lands Registry at Ibadan. The Registrar of Deeds duly produced the Registry Copy of Exhibit A before us and we examined it. Like Exhibit A, this Registry Copy was not the original of the purported deed of conveyance between Miss Obong and Akinwale Ajao and two others. It bore no thumb impressions. It was not signed by anybody not even by the Magistrate before whom it was supposed to have been executed nor by the court interpreter who was supposed to have interpreted the contents of the deed to the illiterate executants. We also examined other deeds in the same Register of Deeds.

On a further submission after this examination, learned counsel for the respondent agreed that what was produced by the Registry of Deeds was neither the original of Exhibit A nor was it thumb impressed. He, however, referred us to Section 18 subsections 1-4 of the Land Instruments Registration Law, Cap 56, Laws of the Western Region of Nigeria 1959 and submitted that the Law does not require that the copy in the Deeds Registry should be thumb impressed or signed. He also referred to Section 30 subsection 2 of the same Law which deals with the reception of such a registered deed in evidence.

In a further reply, learned counsel for the Appellant agreed that what was to be produced from the Registry of Deeds was a Certified True Copy. He, however, referred to Section 26 of the Land Instruments Registration Law (supra). He also referred to the case of Abdul Ahmed Ojo v. Primate E. O. Adejobi and Others (1978) 3 S.C. 65 at p.71. He further cited the cases of Jackson 1. Sanya vs M. A. O. Johnson (1974) 11 S.C. 207 at 220-223 and in Re Halifax Commercial Banking Co. Ltd. v. Wood (1898) 79 L.T.R. at 536 culled from Williams on Title 4th Edition at p. 659.

I shall deal with these submissions in the course of this judgment.

From a long line of cases beginning from J. Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336, it has been settled law that the onus of proof in a suit for declaration of title lies on the Plaintiff and that he must succeed on the strength of his case and not on the weakness of the Defendant’s case (though at times the weakness of the Defendant’s case tends to strengthen the Plaintiff’s case, see Akinwata Nwagbogu v. Chief M. O. Ibejiako (1972) Vol. 2 Part 1 E.C.S.L.R. 335 at 338, a Supreme Court decision). This onus of proof never shifts except where Defendant is claiming exclusive ownership of family land as was decided by this Court in Michael Atuanya v. Fabian Onyejekwe and 1 Other (1975) 3 S. C. 161 at 168. A burden of proof is also cast on the Defendant where Section 137(2) of the Evidence Act is applicable. In the instant case the Respondent will have to succeed or fail on the strength of Exhibit A which is the document of title of Miss Obong. In the face of Akinwale Ajao’s denial of ever executing any deed in favour of Miss Obong, there is this Exhibit A which shows no sign of due execution by the parties who are said to have executed it.

In Idundun’s case (supra) this Court, Fatayi-Williams, J.S.C. (as he then was) delivering the judgment of the Court, held that there were 5 ways in which a Plaintiff may establish his claim to declaration of title to land. The second method was

“By production of documents of title which must, of course, be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of Contract (see S.129 Evidence Act and Johnson v Lawanson (1971) 1 All N.L.R. 56.” Section 99 of the Evidence Act urged on us also provides as follows

“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”

It is my considered view, however, that in the peculiar circumstances of this case, Section 18 subsections 1-5 and Section 30 subsection 2 of the Land Instruments Registration Law of Western Region of Nigeria to which learned counsel for the Respondent drew our attention is a complete answer to the submissions of the Appellant, and if properly applied would cover the point of law conceded above. Before setting out these relevant sections, it is pertinent to observe that these provisions of Cap. 56, Laws of Western Region of Nigeria 1959 were never brought to the notice of the learned trial Judge in this suit or to the attention of the learned Justices of the Federal Court of Appeal. Now to Cap. 56. Section 18 subsection 1-5 provide as follows:

“18(1) any person desiring that any instrument shall be registered shall deliver the same together with a true copy thereof and the prescribed fee to the Registrar at the office

(2) The Registrar shall immediately after such delivery, place upon the instrument and upon the copy thereof a certificate, as in Form 8 in the First Schedule.

(3) Unless the instrument is one which is declared by the Law to be void or the registration of which is prohibited by this Law, the Registrar shall compare the copy of the instrument with the original and if he shall find such a copy to be a true copy and to comply with any regulations made under this Law and for the time being in force he shall certify the same by writing thereon “Certified True Copy” and appending his signature thereto.

(4) The Registrar shall thereupon register the instrument by causing a copy so certified to be pasted or bound in one of the register books and by endorsing upon the original instrument a certificate as in Form C in the First Schedule. and upon such registration the year, month, day and hour specified in the certificate endorsed on the instrument in pursuance of subsection (2) shall be taken to be the year, month, day and hour at which the instrument was registered.

(5) The original instrument shall thereafter, upon application, be returned to the person who shall have delivered it for registration Provided that if application for the return of the instrument is not made within twelve months after the date of registration the Registrar may destroy the instrument”

The evidence in this suit revealed that the original of Exhibit A was lost and so could not be tendered by the Respondent. Having regard to Section 18, particularly subsection 3 (supra), it must be presumed that the copy of the deed 36/36/134 pasted in the Registry of Deeds (which we saw) and from which a Certified True Copy (Exhibit A) was made was duly compared with the original of the deed before registration and found to be a true copy in the sense that the names of the executants therein are the same as those who actually executed (in terms of signature or thumb impressions) the original taken away in accordance with subsection 5. That this must be the true construction of or inference to be drawn from that section of the Land Instruments Registration Law of Western Region of Nigeria is borne out by the fact that Exhibit C, a Certified True Copy of the deed of conveyance between Mallam Etamesor (from whom Appellant got the land in dispute) and Akinwale Ajao and two others was not signed or thumb impressed by anybody but it had the names of Mallam Etamesor and Akinwale Ajao and two others with only (Sgd) against them. On the other hand Exhibit E, the original of the same deed, which was tendered in these proceedings by the Appellant from his custody was duly thumb impressed by the parties who executed it – Mallam Etamesor and Akinwale Ajao and two others. Also during our perusal of the Register of Deeds it was quite clear that several of the deeds pasted and marked ‘Certified True Copy’ were neither signed nor thumb-impressed by anybody. Section 30 Subsections 1 and 2 of the same Law provide as follows:

“30(1) The Registrar shall upon request give a certified copy of any entry in any such register book or register, or of any field document,

(2) Every such certified copy shall be received in evidence.

Exhibit A was issued pursuant to Sub-section (1) above. The whole section must be read together with Section 18 and it is my view that once sub-section 1 of Section 30 and Sub-sections 3 and 4 of Section 18 are complied with, the deed will be admitted in evidence without any further proof or other proof of such matters as execution by the parties named therein. Section 26 of the Law to which learned Counsel for the Appellant made reference is irrelevant in the present proceedings. Though it provides that Registration shall not cure any defect in any instrument or confer upon it any effect or validity which it would not otherwise have had, it (i.e. Sections 26) is made subject to the provisions of this Law and cannot operate to make Exhibit A a worthless document unless there is evidence that section 18 of the Law was not complied with by the Registrar of Deeds. There is no such evidence.

In Abdul Hamid Ojo’s case supra, the claim for declaration of title to land in Lagos rested on a document of title tendered in the proceedings before the High Court of Lagos States also as Exhibit A. In the course of the Appeal before this Court, Aniagolu, J.S.C. delivering the judgment of the Court, observed in relation to Exhibit A as follows:

“. . . In the course of the arguments on this appeal, however, this Court had a close look at Exhibit A and discovered that it is entirely a worthless document. It is a photocopy of a supposed copy of a deed of conveyance. It is written in long hand and nobody signed it. It bears the names of a number of people who did not sign but whose names were inserted with the prefix “Sgd” against their names. The entire document was written out by one person, as we have stated, in long hand. No member of the Oloto Chieftaincy Family, the family which supposedly conveyed the land in dispute which the Plaintiff is claiming – signed the document. The Evidence Act, Cap.62, has made provisions for the admission of certified copies of documents but in none of its sections has it provided for copies of documents.”

This case is clearly distinguishable from the instant one. Exhibit A in this appeal was a Certified True Copy of the deed of conveyance on which Plaintiff relied for title and not “a photocopy of a supposed copy of a Deed”. There is nothing to show that the attention of the Court was drawn to Section 17 Sub-sections 1-5 of the Land Registration Ordinance of Lagos State Cap. 99 of the Laws of the Federation of Nigeria and Lagos 1958 which are inpari materia with Section 18 sub-section 1-5 of the Land Instruments Registration Law of Western Region of Nigeria 1959. Even if the attention of the Court was drawn to it, it would have been of no avail as Exhibit A in the Ojo’s Case was not a Certified True Copy but a photocopy of a copy which was clearly inadmissible in evidence.

In Jackson I. Sanya v. M. A. O. Johnson (supra), another decision of this Court, the Plaintiff in that suit for declaration of title to land in Lagos was relying on a deed of conveyance Exhibit B executed by one Madam Dorcas Folashade Agbeke, the mother of the Defendant in that Suit. The Defendant claimed the deed was void on the ground

“That at the material time, his mother, Madam Agbeke was too old to understand the nature and contents of the instrument which she was alleged to have executed.”

The brother and sister of Defendant gave evidence which the trial Court accepted and which indicated that the said Madam Agbeke actually sold the land in dispute to the Plaintiff and executed Exhibit B. This suit while it deals with proof of execution raises different issues from the one I am to decide in this appeal and to that extent I do not consider it relevant. The rebuttable presumption which arises in respect of a document falling within Section 129 of the Evidence Act is not in Issue in this Appeal. Finally, re Halifax Commercial Banking Co. Ltd. (Supra) is authority for the proposition that the Registration of a deed is not evidence of its due execution or that it was executed at all. As I have indicated in this judgment, I think that subsections 3 and 4 of Section 18 of the Land Instruments Registration Law of Western Region of Nigeria disposes of this point in the instant case.

Learned Counsel for the Appellant had in his argument before us asserted that the issue of forgery did not arise in this suit. I think it did and the Federal Court of Appeal was right in so finding. The Appellant clearly raised the issue of forgery in paragraph 3( a) and (b) of his pleadings as set out above. The learned trial Judge did not advert his mind fully to the implications of that pleading hence he sought to explain it as laying emphasis on Akinwale Ajao’s denial of execution of Exhibit A. The point is that the Appellant having raised the issue of Exhibit A being a forgery the burden was on him to prove that assertion. The standard of proof is proof beyond reasonable doubt. Section 137(1) and (2) of the Evidence Act, Cap 62. provide as follows

“137 (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 140, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. ”

See Godwin Nwankwere v. Joseph Adewunmi (1967) N.M.L.R. 45 at 48; Benson Ikoku v. Enoch Oli (1962) 1 All N.L.R. Vol. 1 Part 1 194 . The Defendant/Appellant did not discharge this burden on him. The Federal Court of Appeal commenting on this in their judgment observed:

“In the instant case the allegations were directly against the conveyance Exhibit A, on which the Plaintiff relies to succeed. The Defendant called only one witness, Akinwale Ajao. This witness as documentary evidence Exhibits A.B.C.D. and E prima facie show was an illiterate. Akinwale Ajao was merely asked whether he executed a deed in favour of Miss Obong and he answered no.” The learned Justices also stated “nor was any evidence given as to what Lajumoke did with respect to Exhibit A that constituted that document a ‘forgery’.”

It could also be added that the Defendant/Appellant did not call one Oriafor the second party in Exhibit B which Akinwale Ajao also denied executing but in respect of which he claimed in cross-examination Oriafor had come to beg the family. The only effort by the Appellant at proving the alleged “forgery” it seems was the plea in paragraph 3(b) of the Statement of Defence that, the deed of conveyance Exhibit A was set aside in Suit No. 1/144/57: Akinwale Ajao and two Others v. S. O. Lajumoke on the ground of fraud. This proved disastrous as the record of proceedings of Suit 1/144/57 was tendered as Exhibit L in the proceedings before the High Court and it turned out to be only an action for account between Akinwale Ajao and 2 others and Lajumoke.

My Lords, the Plaintiff/Respondent in my view was entitled to the declaration he sought in the Court of first instance. This Appeal must therefore fail and it is hereby dismissed. The judgment of the Federal Court of Appeal, Ibadan Judicial Division delivered on 19th May 1978 is hereby affirmed. There will be costs in favour of the Respondent as contained in the order of my Lord Sowemimo, J.S.C. Presiding.

G. S. SOWEMIMO, J.S.C.: I have had the opportunity of reading the judgment of my learned brother Nnamani, J.S.C. and I am in complete agreement with him that this appeal should be dismissed. I wish however to refer to paragraphs 1, 2, 3 and 4 of the Statement of Defence which averred:

(a) That the Plaintiff/Respondent was not a beneficiary under the estate of Miss Obong Anwan;

(b) That the respondent is incapable of executing the power of attorney (the reason for this averment was never spelt out);

(c) That the original of Exhibit A was a forgery organised by one S. O. Lajumoke, a former attorney of the recognised vendors Akinwale Ajao and 2 Others.

(d) That Exhibit A was set aside by the High Court of the former Western Region of Nigeria in suit No.1/144/57 titled Akinwale Ajao and 2 Others vs. S. O. Lajumoke; and

(e) That at no time did Miss Obong Anwan Obong enter into possession of the land in dispute.

The Respondent filed a reply to the Statement of Defence and denied amongst others paragraphs (1) and (4) of the Statement of Defence. He further joined issue in reply to paragraph (3) of the Statement of Defence and averred that the original of Exhibit A was executed by Akinwale Ajao & two Others on the same day as they executed the deed of conveyance in favour of one Mr.. Oriafo. The Respondent averred that he would be relying on the said deed to Mr. Oriafo.

At the close of the pleading, it would appear that whilst in the Statement of Defence the Defendant averred that the original of Exhibit A was a forgery, the Plaintiff however joined issue on the due execution of the original deed by reference to another deed of conveyance purported to have been executed on the same date as his own. He then calls for a decision as a matter of fact whether this was so or not. The special circumstance of this case in which the original deed of Exhibit A was missing demands that a finding of fact must be made on the issue joined. I have no doubt that the learned trial Judge in the High Court was quite aware that Exhibit A was a certified copy of the original deed and was admissible in Law within the provisions of Section 18 subsections (1) to (5) and Section 30 subsection (1) of the Land Instruments Registration Law of the Western Region of Nigeria 1959 Cap. 56, which provisions are set out in the judgment of my learned brother Nnamani, J.S.C. If that is so, what the learned trial Judge was to do was to try the issue as raised by the Defendant that the original of Exhibit A bore forged thumb impressions of Akinwale Ajao and two Others and that such forgery was perpetrated by one S. O. Lajumoke, at the material time the attorney of the recognised vendors of Okeremi Estate of which the plot in question is a part.

It is surprising that in view of the fact that there was ample evidence before the learned trial Judge, that the original of Exhibit A was lost and that Exhibit A produced in evidence was a certified copy, he, the Judge, still demanded that the Plaintiff/Respondent must nevertheless prove due execution when Section 30 subsection (2) of the Land Instruments Registration Law of Western Region of Nigeria 1959 Cap. 56, provides that a certified copy like Exhibit A “shall be received in evidence without any further or other proof in all cases.” Once therefore, Exhibit A has been produced, the onus then shifts on the Defendant to prove the alleged forgery as provided by Section 137 subsections (1) and (2) of the Evidence Act of the Laws of Nigeria and Federal Territory of Lagos Cap. 62 which is applicable in the Western Region of Nigeria at the material time. Since that burden has not been discharged, the judgment of the Federal Court of Appeal, though based on grounds other than what I have referred to in the provisions of the Land Instruments Registration Law, is nevertheless valid on the points raised before that court.

I will only observe that the provisions of the law whereby the original deed having been registered is returned to the party who presented it for registration and a Certified True Copy of it is the record kept in the Lands Registry opens wide to either vendors or purchasers, for reasons other than honesty and/or genuineness, to deny due execution when the original deed is missing. It is to be hoped however that it may be considered necessary that the original deed, having been duly registered, is kept in the Lands Registry and a Certified True Copy given to the party who had presented it.

In my view the Plaintiff/Respondent is entitled to the declaration sought for in his writ of summons and I will uphold the judgment of the Federal Court of Appeal and therefore dismiss this appeal with costs assessed at N300 to the Respondent.

M. BELLO, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Nnamani, J.S.C. and I entirely agree.

K. ESO, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, my Lord, Nnamani, J.S.C. and also the draft of the judgment which has just been read by my Lord, Sowemimo, J.S.C

I agree that the appeal should be dismissed. The point that needs be emphasised is as regards evidential onus. As already stated in the afore mentioned judgments, one principal issue which was raised by the pleadings was as to whether the original of Exhibit” A” was a forgery or not. This was the case of the Defendant and it was contained in his averments in the Statement of Defence. Notwithstanding, the clear issue so raised, the learned trial Judge neglected to examine, at all, this issue and failed to determine the case put before him by the Defendant.

As it has already been stated by my learned brothers, the evidential onus in regard to the averment shifted upon the Defendant. It is trite that he who alleges, proves. Having made the averment, and having failed to adduce even an iota of evidence in proof thereof, the Defendant’s case fails.

The appeal is dismissed though on grounds other than those contained in the judgment of the Federal Court of Appeal. Costs are as ordered in the judgment of my Lord, Sowemimo, J.S.C. presiding.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment which has been delivered by my learned brother Nnamani, J.S.C. I agree that this appeal should be dismissed. I wish to identify myself also with the observation made by my learned brother Sowemimo, J.S.C. on the desirability to have original copies of deeds retained in the Land Registry in order to avoid fraud.

The appeal is hereby dismissed with costs against the Appellant as ordered by my Lord, Sowemimo, and J.S.C.

Appeal dismissed.

Other Citation: (1980) LCN/1096(SC)