Kingsley Emesiani V. Levi Emesiani (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 26th July, 1999, the respondent herein, as plaintiff commenced suit N0. OT/40/99 in the High Court of Anambra State in the Otuocha Judicial Division against the appellant herein as defendant, claiming for:

1. A declaration that plaintiff is entitled to the statutory right of occupancy of the land in dispute whose annual rental value is N100.00
2. N10,000.00 damages for trespass
3. Perpetual injunction restraining the defendant whether by himself, agents, privies or workmen from committing further acts of trespass on the land.

Both sides filed and exchanged pleadings. After the conclusion of evidence and address of both sides, the trial court per P.A.C Obidigwe J on the 22nd March, 2005 rendered Judgment in favour of the plaintiff granting him the claims as reproduced above.

Dissatisfied with this judgment, the defendant on the 9th April, 2005 commenced this appeal NO CA/E/321/2007 by filing a notice of appeal containing 6 grounds. The appellant’s brief of argument was filed on 5-6-2008 and deemed filed on 29-6-2009. The brief filed had 40 pages. The appellant filed a modified brief on 17-1-2013 not exceeding 30 pages as required by Order 18 Rule 6(a) of the Court of Appeal Rules 2011. The respondent’s brief of argument filed on the 19th of August, 2009 was deemed filed on 11th October, 2010.

This brief was settled by O.R. Ulasi SAN. Following change of Counsel by respondent, a second respondent’s brief was filed by Dr. G.O. Okafor on 14-6-2011. For the determination of this appeal, I will rely on the modified appellant’s brief of argument, the respondent’s second brief filed on 14-6-2011 and the appellant’s reply brief. The appellant’s reply brief was filed on 21-6-2011. Both sides have adopted their briefs of argument. The appellant in his brief of argument raised the following issues for determination:

1. Whether the Learned trial Judge was right when he admitted and relied on Exhibits A, B & C, purportedly made by an illiterate, in proof of the alleged sale/purchase of the land in dispute on the ground that the Exhibits were 20 years old when they were being admitted pursuant to Section 130 of the Evidence Act.
2. Whether Exhibit E & F contained valid arbitration decision, if not, whether there was any other valid arbitration decision between the parties.
3. Whether the learned trial Judge correctly evaluated the evidence tendered before him when he entered judgment by saying: “Both parties agree that the three contiguous pieces of land were purchased.”
4. Whether the learned trial Judge was right in awarding title to the land in dispute to the Respondent in view of the pleadings and evidence.
5. Whether the learned trial judge was right in granting the perpetual injunction to the respondent and awarding damages for trespass against the appellant in view of the fact that the parties have lived together and in common on the land in dispute for many years.

The respondent in his brief of argument raised five issues for determination as follows:

“1. Whether the Learned trial Judge was right when he admitted and relied on exhibit A, B and, purportedly made by an illiterate, in prove of the alleged sale/purchase of the land in dispute on the ground that the exhibits were 20 years old when they were being admitted pursuant to section 130 of the Evidence Act.

2. Whether exhibits E and F contained valid arbitration decision, if not, whether there was any other valid arbitration decision between the parties.
3. Whether the Learned trial Judge correctly evaluated the evidence tendered before him when he entered judgment by saying: “both parties agree that the three contiguous pieces of land were purchased.”
4. Whether the Learned trial Judge was right in awarding title to the land in dispute to the respondent in view of the pleadings and evidence.
5. Whether the Learned trial Judge was right in granting the perpetual injunction to the respondent and awarding damages for trespass against the appellant in view of the fact that the parties have lived together and in common on the land in dispute for many years.”

Considering the judgment of the trial court, the grounds of appeal, the issues for determination raised by both sides and the arguments of same, I prefer to couch the issue for determination thus – whether the trial court was right to have held that the respondent proved his case, and was entitled to judgment granting him all the reliefs claimed in the statement of claim.

The decision of the trial court that the respondent has proved his case on a preponderance of evidence and is entitled to judgment followed its finding that “from the totality of the evidence before the court, including the exhibits tendered, there is no doubt that the LAND in dispute was acquired by the plaintiff’s father. He was then in the Army and acted through his elder brother, Akpe, the defendant’s father who represented him and thumb printed exhibits A, B, & C on his behalf.” The trial court had before this finding also found that exhibits E and F “were unequivocal that the land in dispute was acquired by the plaintiff’s father and that it is landed property of the plaintiff’s father, Julius Emesiani, “A further basis for the judgment of the trial court is its finding that “there is no evidence that the plaintiff’s father at any time set his abode any other place than on the land in dispute. It could, therefore be said that the plaintiff has shown acts of ownership and possession numerous and positive enough extending over a sufficient length of time to warrant the inference of exclusive ownership of the land in dispute.”

Learned Counsel for the appellant under issue No.1 of his brief has argued that the trial court was wrong to have admitted and relied on exhibits A, B, and C. The reasons he gave in support of this argument are that:

1. the exhibits are forged and so are not authentic but false documents
2. the exhibits did not comply with S. 3 of the Illiterates Protection Law of Anambra State.
3. the exhibits were unregistered registrable instruments.
4. the trial court was wrong to have presumed them to be sufficient evidence of the truth of the facts therein.

Let me start with the argument that exhibits A, B, and C are forgeries and so are not genuine or authentic. Learned Counsel opened his argument of this issue by stating that where a document is challenged and impugned as unauthentic, the maker of the document must be called by the party who tendered the document to give evidence in support of the document. I will straight away point out here that the need to call the maker of a document to prove the authenticity of the document, can only arise when it has been successfully challenged or shown not to be authentic. The need cannot just arise on the mere assertion that it is forged or not authentic.

It is trite law that he who alleges must prove. It is for the party alleging that a document is forged to prove that it is forged.

The duty to disprove such allegation can only arise when the party so alleging has discharged the burden to prove it. It is the appellant who raised the issue of the authenticity or genuineness of the document and wants the court to believe that it is not authentic. By virtue of S. 136(1) of the Evidence Act 2011:

“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”