Samuel Agbonifo V. Madama Irorore Aiwereoba & Anor (1988) LLJR-SC

Samuel Agbonifo V. Madama Irorore Aiwereoba & Anor (1988)

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Before a Benin High Court the plaintiff in a claim amended in paragraph 14 of the Amended statement of claim, claimed against the two defendants as follows:-

“(i) Declaration that the Plaintiff is entitled to possessory title under Bini Customary Law of the parcel of land lying situate along Eboigbe Street, Upper Sakpoba Road, Ward 18th Benin City and verged red on Plan No. ER. 2251 filed with this statement of claim and therefore entitled to a certificate of occupancy in respect of same under the Land Use Act.

(ii) N1,000.00 (One thousand Naira) general damages for trespass committed by the Defendants their servants or agents unto the said land.

(iii) Perpetual injunction restraining the Defendants their servants or agents from entering the said land or in any way interferring with the Plaintiffs rights in or over the said land.”

At the hearing, after the exchange of pleadings, each party called evidence and their counsel addressed the Court. The learned trial Judge, Idahosa, J, in a well-considered judgment preferred the case by and on behalf of the plaintiff and entered judgment for him. On appeal, the Court of Appeal, Benin Division, proceeded to make many findings of fact contrary to those of the trial Judge and, at the end of the day, allowed the appeal, set aside the judgment of the learned trial Judge and entered judgment for the defendants. The plaintiff has appealed to this Court, with leave of the Court of Appeal. Four grounds of appeal were filed. With their particulars, they run into four-and-a half pages of type-script and each of them lacks that general formulation which should be the hall-mark of a good ground of appeal. However, as no objection was taken about them, I say no more of their form. I consider it sufficient, however, to summarize their main contentions, thus:

(i) The 1st ground of appeal contends that the Court of Appeal misdirected itself in law and on the facts when it held that the plaintiff did not discharge the onus of proof incumbent on him of averring and proving that the defendants’ documents of title were forged.

(ii) The 2nd ground contends that the Court of Appeal erred in law when it found for the defendants on the ground that the plaintiff did not discharge the onus placed on him by law in that P.W.4. and P.W.5. were not surveyors and that the trial Judge should have taken their evidence with a pinch of salt, as the defendants were illiterates.

(iii) The 3rd ground complains of the Court of Appeal applying the principle of priority to the facts of the case as proved by evidence; particularly as required by customary law and the defendants’ failure to prove a good title in view of the evidence of P. W.4 and P.W.5.

(iv) The 4th ground complains of the Court of Appeal’s belief of witnesses (D.W.1, John Orebor, and D.W.2, Iduma Omorogbe) whose evidence the trial Judge had disbelieved in view of the accepted evidence of P.W.4 and P.W.5.

The plaintiff shall hereinafter be called the appellant and the defendants, the respondents. Each party duly filed their brief of argument which they adopted at the hearing and addressed the Court orally.

Based on the above grounds of appeal, the learned counsel for the appellant formulated the issues for determination in this appeal thus:

“1. Whether the Court was right to substitute its views for the views of the learned trial judge when the findings are not perverse or against the trend of the evidence, particularly when their Lordships held that on the facts of the case the issues were at large or it was one of oath against oath.

  1. Whether the plaintiff did not prove a good title to the land in dispute in accordance with Benin Native Law and custom.
  2. Whether on the facts of the case the issue was one of priority of approval.
  3. Whether by well established custom in Benin and on decided cases a plot pointer or inspector is required to be a surveyor.
  4. Whether the illiteracy of the defendants is relevant on the facts of this case.

The learned counsel for the respondents adopted the issues as framed and tried to reply to them seriatim.

Before I can deal adequately with the above issues, I deem it necessary to recapitulate the relevant portion of the Customary Law of Benin as it relates to allocation of plots in Benin City. I can do no better than did the Supreme Court, per Udoma, J.S.C., in K. S. Okeanya v. Madam Ekiomado Aguebor (1970) 1 All N.L.R. 1, at pages 8-10 where their Lordships said:

“On the general and important issue as to the mode of acquiring a grant of land under Bini Customary Law, the learned trial Judge, after a careful consideration, accepted the evidence given by Hawdon Omoregbe Uwaifo (P.W.1) which was corroborated by the contents of a booklet, exhibit K, entitled “Benin Custom and Law regarding Land, Burial Rites and Inheritance” written by Hawdon Omoregbe Uwaifo himself, and found as a fact that it was common ground that among other things:-

(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;

(b) in respect of Benin City itself, the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;

(c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;

(d) one of the several functions of a ward plot allotment committee is to recommend plot applications to the Oba of Benin for approval;

(e) an applicant for land in Benin City as from 1961 has to direct his application in writing to the ward plot allotment committee of his choice;

(f) the ward plot allotment committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their ward and they in turn would report back to the committee on their inspection “the purpose of the inspection” being “to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone;”

(g) upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is “dispute free”, the ward plot allotment committee would endorse the application with the above facts and forward it to the Oba of Benin as recommended;

(h) the Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;

(i) an approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;

(j) it is contrary to Benin custom to set aside an approval made in error upon an exparte application by one of the affected parties.”

Although the above were referred to as “findings” in that case, they, or aspects of them, have, by constant judicial usage in several subsequent cases, based on the custom of plot allotment in Benin City, come to be regarded and treated as notorious customs which could be judicially noticed under section 14(2) of the Evidence Act, and applied without further proof. It is enough to refer to the following cases, namely: Ogbeide Aikhionbare – Ohen – Eriaria of Evboriaria & Ors. v. Uyiekpen Omoregie – Enogie of Evbuoba Ohen Village & Ors. (1976) 12 S.C. 11, at p. 28.

Mrs. D. M. Aigbe v. Bishop John Edokpolor (1977) 2 S.C. 1

Peter Mbachu v. Napoleon Oshodi & Anor. (1977) 3 F.C.A. 110.

Madam I. Arase v. Peter Arase (1981) 5 S.C.33

Atiti Gold v. Beatrice Osaseren (1970) 1 All N.L.R. 132

Vincent Bello v. Magnus Eweka (1981) 1 S.C. 101

These customs were applied before the promulgation of the Land Use Act in 1978. It is from the background of these customs and decided cases and from general law that I shall now consider the issues raised in this appeal.

The first issue raises the vexed, and often difficult, question as to when an appellate Court can reverse a Court of trial on findings on primary facts. Mr. Longe for the appellant pointed out that the learned trial Judge who watched, and listened to, the appellant and his witnesses testify decided to accredit the evidence of the plaintiff and his witnesses for reasons which were not faulted before the Court of Appeal. He pointed out that in the circumstances and as the findings were not shown to be perverse or against the trend of the evidence called at the trial, the Court of Appeal was not right to substitute its views of the facts for those of the trial Judge. In support he cited the following cases, namely:

Ojadi v. Okenihun (1985) 1 N.W.L.R. 484;

Akibu v. Okpaleye (1974) 1 All N.L.R. (Pt.1) 344;

Atolagbe v. Shorun (1985) 1 N.W.L.R. 360;

Awoyale v. Ogunbiyi (1986) 2 N.W.L.R. 626

In reply, the learned counsel for the respondents submitted that the learned Justices of the Court of Appeal found the findings of the learned trial judge to be perverse or against the natural drift of the evidence before him and were therefore entitled to interfere with the evaluation of the evidence and findings made thereon. He cited most of the cases relied upon by the appellant plus Elochin (Nig.) Ltd & 2 Ors. v. Victor Ngozi Mbadiwe (1986) 1 N.W.L.R. (Part 14) 47. He pointed out that the respondents; documents of title, Exhs H1 and J were signed by the appellant’s star witnesses, P.W.4 and P.W.5 when they were Secretary and Chairman respectively. So they ought not to have been believed. Also P.W.4 could not, on the evidence, in 1963 have validly acquired a larger parcel of land, part of which he granted to the appellant, when the respondents had acquired title to the same lands in 1956 and 1962.

Now in proof of his case the appellant not only testified in proof of his case, he also tendered his documents of title including a receipt, Exh. A, dated the 8th day of September, 1975, from the customary administrators of the estate of late Omoregie Oghaghon for the sum of N3,800.00; application, Exh. B for plot allocation by P.W.4 dated 26/6/63 duly recommended for Oba’s approval by the Members, Chairman, and Secretary of the Ward Plot Allotment Committee; an approval by the Oba,pf Benin on 18/9/63 as Plot Nos. 25, 26, 27 and 28 in Ward 18/H, Benin City; and an application, Exh. C, for change of ownership from Vincent Amadasun (P.W.4) to appellant’s vendor, Omoregie Oghaghon. He also called as P.W.1 a licensed surveyor who surveyed the land for the appellant in April, 1979, and produced a plan, Exh. D. P.W.2 and P.W.3, on behalf of the estate of his vendor, showed the land in dispute to the appellant as the land they sold to him as the land of the late Roland Omoregie Oghaghon. P.W.4, Vincent Amadasun, testified that it was to him the land was first allotted when he was Chairman of Ward 18/H Plot Allotment Committee and that he sold and transferred it to late Oghagbon. He said there was no former layout in the area where the land is situate and there could not have been one before the one from which he got his allotment. P.W.5, David Ojo Iyamu, who was also called by the appellant said he was Secretary of Ward H from 1954 to 1959 and was one of the three pointers for Ward H during the period. Between 1960 and 1970 he H was a member of Ward 18/H Plot Allotment Committee. It was in 1960 that Ward H was split into Wards 16, 17, 18/H Plot Allotment Committees. He knew that the land in dispute was part of the land allotted to P.W.4. He testified that when Ward H was functioning they never alloted plots up to the area of the land in dispute; he was always in the allotment committee to guide them, both in Ward H and in Wards into which it was sub-divided. As a final blow to the respondents’ case he said that they never recommended the plot in dispute to the Oba for approval in 1956. Also, that it was not possible for Ward H to have allocated the plot to Iduma Omoregbe (D.W.2) in 1962, Ward H having been dissolved in 1960.

The respondents also gave evidence and called their vendors, John Orebor and lduma Omoregbe. Also after the appellant had closed his case they tendered their title deeds, Exh. J and H1 which they alleged bore the 8 signatures of P.W.4 and P.W.5. However, they did not confront P.W.4 and P.W.5 with their so-called signatures while in the witness box; nor did they take any other step to prove the alleged signatures.

In the above state of the cases of both parties, the learned trial Judge decided to believe the appellant and his witnesses, in particular P.W.4 and P.W.5. He gave reasons for preferring their testimonies especially those of P.W.4 and P.W.5 to those of the respondents, and their witnesses, and I have not been persuaded that any of those reasons was wrong. I do not agree with the learned counsel for the respondents that the findings were perverse in any way. I shall deal with the probative value of the evidence called by the respondents later in this judgment. Suffice it to say that, as the learned trial Judge who saw and heard P.W.4 and P.W.5 testify decided to believe them for reasons which have not been faulted, he was within his rights to do so. There is a presumption that his decision on the point was correct; and that presumption must have to be displaced by the respondents: see Williams v. Johnson (1937) 2 W.A.C.A. 253. The effect of the accepted evidence of P.W.4 and P.W.5 is, of course, that the respondents could not have had the plots in dispute alloted to their predecessors-in-title in 1956 and 1962 and that the plots were not alloted to them.

How then did the Court of Appeal approach these findings of fact by the learned trial Judge That Court swept aside the above findings by the trial Judge based on the credibility of witnesses who had testified before him and made its own seven contrary findings of fact from which it came to the conclusion that the respondents had a better title. In deciding to rather believe D.W.1 and D.W.2 who had been disbelieved by the trial Judge, the learned Justices of the Court of Appeal said:

“It is remarkable that both Mr. John Orebor and Mr. Iduma Omoregbe had each testified for the 1st appellant and 2nd appellant as D.W.1 and D.W.2 respectively and had been cross-examined by the respondent’s counsel. There was nothing in the record to show that any of the two witnesses had been shaken or discredited or his evidence falsified. So at this stage, it was a matter in which the issues were at large, a case of oath against oath or of Amadasun’s word against the word of John Orebor on behalf of the 1st appellant and against the word of Iduma Omoregbe on behalf of the 2nd appellant – with each of the three persons sinking or rising with his Oba’s approval as the board upon which he stands.”

With greatest respects, the Court of Appeal trespassed far beyond the bounds of the powers of an Appellate Court. It did not see the witnesses and so was in no position to believe or not to believe them as a result of their behaviour under the fire of cross-examination. It is the trial Court which did. It was in no position to substitute its own views of witnesses for those of the Court of trial: see Asani Balogun & Ors. v. Alimi Agboola (1974) 1 All N.L.R. (Pt.2) 66; also the Military Governor, Western State v. Afolabi Laniba & Anor. (1974) 1 All N.L.R. (Pt.2) 174.

In my judgment, the function of an Appellate Court on a question of facts is mainly limited to seeking whether or not there was evidence before the trial Court upon which its decision on facts was based; whether it wrongly accepted or rejected any evidence tendered at the trial; whether evidence called by either party to the conflict was put on either side of an imaginary balance and weighed one against the other, in other words whether the trial Court properly evaluated the evidence; whether the trial Court correctly approached the assessment of the evidence before it; whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom.

These are the results of all the decided cases on the point. See for examples, Anachuna Anyaoke & Ors. v. Dr. Felix Adi & Ors. (1986) 3 N.W.L.R. (Part 31) 731, at p. 742. Ogboda v. Adelugba (1971) 1 All N.L.R. 68, p. 71; Mba Nta & Ors. v. Ede Nwede Anigbo & Ors. (1972) All N.L.R. (Pt.2) 74, p. 80. Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 and a host of other cases, some of which were cited by the learned counsel on either side in this case.

Where the issue is that of credibility of witnesses the appellate Court has a very limited, if any, scope to interfere: Lawal Buraimoh Fatoyinbo & Ors. v. Saliatu Abike Williams alias Sanni & Ors. (1956) 1 F.S.C. 87. It can only do so when the trial Court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document: see Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt. 1) 35.As none of the above situations in which an appellate court could interfere was shown to exist in the instant case, I am of the view that the Court of Appeal was wrong and exceeded its powers. I must therefore resolve this issue in favour of the appellant.

I shall next consider together the issues whether or not the appellant proved his case and whether any issue of priority arose at all in the case. The Court of Appeal at page 193-194 held:

“1. All what plaintiff showed was that he traced his root of title to the land in dispute to Mr. Amadasun whose Oba’s approval per Exhibit B was dated 18/9/63; whereas the 1st appellant traced her root of title to the plot she has built her house upon to one Mr. John Orebor (D.W.1) whose Oba’s approval was dated 27/11/56; and whereas the 2nd appellant traced her own root of title to the plot she had erected her building upon to one Mr. Iduma Omoregbe (D.W.2) whose Oba’s approval for which plot was dated 12/1/62.

  1. Since Oba’s approvals to D.W.1 and D.W.2 are prior in time to the Oba’s approval to Mr. Amadasun (P.W.4), then the respondent (as plaintiff) had not proved that he had better title to the

two plots built upon by the two appellants (as 1st and 2nd defendants) and therefore (respondent) ought not to have been given judgment as the court did.

  1. The plaintiff did not plead or produce evidence to show that Oba’s approvals – Exhibits H1 and J relied upon by the two appellants were forged documents; the two Documents appeared regular and were properly executed (that is signed by Oba of Benin) and both being over 20 years old ought to have been presumed genuine by the learned trial Judge by virtue of S.122 of Evidence Law. Had the trial Judge done so, his view of Exhibits H1 and J would have been different and his failure so to do was prejudicial to the defence of both appellants before him.”

From the evidence I have outlined above, there cannot be any doubt that the appellant succeeded in tracing his possessory title to the Oba of Benin through his vendor; V.I. Amadasun (P.W.4), who had the original allocation but later sold and transferred it to Roland Oghagbon. He called evidence of inspection and identification of the land transferred to him through his vendors and the appropriate officers of the Plot Allotment Committee P.W.4, the Chairman, and P.W.5, the Secretary of the Ward Plot Allotment Committee. He produced and tendered his documents of title and documents evidencing the intermediary transactions on the land. He went further to show by accepted evidence of P.W.4 and P.W.5 that the respondents’ alleged vendors could not, and did not, have the plot allotted to them in 1956 and 1962 when they claimed to have been allocated the plots. On this state of the facts, there can be no doubt that the appellant traced his title to the Oba of Benin and clearly identified the plots allotted to him, which include the plots in dispute in this case.

What is the state of evidence with respect to the respondents For, as it is also their case that they derived title from the Oba of Benin before the appellant purported to have his grant, and therefore there was nothing left to be granted to him, it was necessary that they prove that title. Idighe, J.S.C., in Madam R.I. Arase v. Peter U. Arase (supra) at page 59 citing the case of Atili Gold v. Beatrice Osaseren, supra, said:

“…..The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba’s approval which, according to the evidence again rightly accepted by the learned Chief Justice, was but a single though culminating step in a whole chain of events and conditions to be strictly fulfilled by a prospective purchaser” (and I would respectfully add that the production of the Oba’s approval sometimes and more so in cases of competing approvals by the Oba in respect of the same land, is only one of many steps though a culminating step in proof of title to the said land).”

Applying this principle in the present case, and looking at the defendant’s case from the background of customary law of Benin outlined above, it appears clearly to me that the respondents’ proof of their title fell far short of the laid down criteria. In the first place, they did not call any evidence to show that there was any inspection of the plots sought to be acquired by them or their predecessors-in-title. Evidence of P.W.4 and P.W.5, appropriate officers of the plot allotment committee, shows that there was no layout of the area at the time the respondents’ predecessors-in-title purported to have acquired the same, and there was nothing to the contrary. In such a case, inspection of the plot not only to identify it but also to make sure it is dispute-free is a sine qua non. See on this: K. S. Okeanya v. Madam Ekiomaao Aguebor (supra); Arase v. Arase (supra) Aigbe v. Bishop John Edokpolor (supra) and Osayande Uhumwangbo v. F.I. Okogie & Ors. (1982) 9 S.C. 101 at pages 104 – 105. Failure to prove inspection of the respondents’ plots before the purported grant by the Oba of Benin is fatal to their title.

Secondly, the respondent did not prove their title deeds – documents of approval from the Oba of Benin – Exhibits “J” and “H1”. They made no attempt to prove the signatures. All they did was to bundle them in long after the appellant and his witnesses had testified and the appellant had closed his case. No attempt was made to prove the signatures of P.W.4 and P.W.5 who were said to have signed these documents and, significantly, they were not confronted with the alleged signatures while in the witness box. Curiously, cellotapes have been placed on vital areas of the documents including the name of the allottees in the two documents. The learned trial Judge condemned them as having been tampered with.

The learned Justices of the Court of Appeal on the other hand stated that the documents appeared to be genuine and proceeded to set aside the findings of the learned trial Judge on the ground that the appellant did not plead and prove fraud. In my opinion, fraud was not in issue and the learned trial Judge did not find fraud. It is, however, true that a cellotape has been put over, inter alia, the name of the allottee in each document and the name of the allottee written after execution and cellotaping. To that extent the learned trial Judge who had the exhibits before him was perfectly entitled to infer from what is obvious on the face of it that they had been tampered with.

This, to my mind, is not the same thing with a finding of fraud. To tamper with a document means to deal with it in any way which tends to change it from its original form. To tamper with it does not necessarily mean to forge the document. On the other hand to forge a document is to, with intention to defraud, destroy, alter, mutilate, or falsify the document, or to make or be privy to making a false entry therein or to omit or be privy to omitting a material particular from the document. To tamper with Exhibits J and H1 was enough to render them unreliable; but if their being forgeries were pleaded and proved, that would have nullified them completely.

Thirdly, the learned Justice of the Court of Appeal sought to support their view as to the validity of the Exhibits, H1 and J, by invoking a presumption in their favour for documents 20 years old and over under section 122 of the Evidence Act. To my mind their reasoning in the matter appears to have lost sight of two fundamental principles. It must be emphasized that as was observed by the learned authors of Phipson: Law of Evidence (12th Edition) paragraph 1760 with respect to section 4 of the (English) Evidence Act of 1938, the presumption therein was “established for the sake of general convenience” and “is founded on the great difficulties and often impossibility of proving a hand writing after a long lapse of time, and on the presumption that the attesting witnesses, if any, are dead”.

They appear to have also lost sight of the fact that the presumption under section 122 of the Evidence Act is a rebuttable one. In the instant case in which the alleged signatories, to wit: P.W.4 and P.W.5, were alive and testified and the sum total of their evidence was that Exhibits H1 and J could not have been properly made in 1956 and 1962 respectively, which evidence completely knocks the bottom off respondents’ case, it is my view that, quite apart from the fact that the two documents have been tampered with, whatever presumption that could have been invoked in their favour under section 122 of the Evidence Act had been rebutted.

Also, it is, settled that conflicting presumptions neutralize each other and leave the case at large to be determined solely on the evidence given: see R v. Willshire (1880) 6 Q.BD. 366; Westwood v. Chettle (1895) 98 L.T.J. 228.In other words any such presumption that could have operated in favour of the respondents would be neutralized by the presumption under section 148(d) of the Evidence Act, in that he had every opportunity of calling evidence on the point by putting questions to P.W.4 and P.W.5, while they were in the witness box, but did not.

I cannot ignore one other obvious feature of the respondents’ case. 1st respondent’s “title document”, Exh. H1, simply applied for:

“a piece of land measuring 100 feet by 100 feet for residential purposes in Ward “H” Benin City.”

It does not pretend to be applying for any particular plot in any existing layout. Nor are there beacon numbers and a plan with which the plot could be identified with any certainty. An attempt was made to write over it in ink “Blocks No. 18821884”. But these numbers could not be linked with, or identified in, or related to, any of the three plans before the Court – Exhs. D dated 23/9/69, F, dated 20/4/79, and G dated 3-4-81. When this feature is coupled with the fact that there was no inspection according to custom, it becomes rather too obvious that even if Exh. “H1” was upheld on other grounds, it granted nothing.

Similarly the 2nd respondent’s “title document,” Exh. “J”. applied for:

“…a vacant plot of land measuring 100 feet by 100 feet at the Ihinmwinrin Road in the New Layout in Ward H/18 Benin City beacon Nos. 188 – 189 – 190”.

The layout plan was not in evidence. There is no plan in evidence which shows those beacon numbers. There was no evidence of any inspection. It has been settled by a number of decided cases, including one by the West African Court of Appeal as long ago as 1938 in the case of Akinolu Baruwa v. Ogunshola 4 W. A. C.A. 159, that the first duty of a person who claims title of ownership over a piece of land is to prove the exact location of the land and the precise area to which his claim relates. As the respondents had to prove their title, this applied to them. But they failed to discharge this primary duty. Although they did not file a claim as such, it is part of the general law that in a case of competing titles, once a plaintiff succeeds in tracing his title to a person whose title to ownership has been established, then the onus shifts upon the defendant to show that his own possession is of such a nature as to oust that of an original owner: Mosalewa Thomas v. Preston Holder (1946) 12 WACA. 78.

Finally, I would wish to underscore the fact that the adversary system of administration of justice which we operate has no room for any sneak game of hide and seek. It does not permit a defendant to conceal a vital evidence in his case from his adversary and his witnesses until they have testified and closed their case. To do so is to negate an essential object of cross-examination: to establish a party’s own case by means of his opponent’s witnesses.

(Sec on this Phipson: On evidence (11th Edn.) para. 1544). A corollary of this is, of course, that in a case like this in which an important part of the defendant’s case was that plaintiffs star witnesses, P.W.4 and P.W.5, signed the documents of title which they (the defendants) were relying upon, it was obligatory of them to have confronted those witnesses with their signatures while in the witness box. The (English) Court of Appeal – summed up the principle in the case of Walter Berley Hart (1932) 23 Cr. App. R. 202, where Hewart, L.C.J. said at p.207:

“In our opinion, if, on a crucial part of the case the prosecution intends to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness box, or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted.”

Lord Ronan, L.J., used much the same words in the civil case of Flannagan v. Fahy (1918) 2 1r. R. 361, p. 388-9, C. A; see also Brown v. Dunn (1894) 6 R. 67 (H.L.). It is noteworthy that if the signature of P.W.4 and P.W.5 on Exhs. H1 and J were established it would have completely destroyed the appellant’s case that the plots in dispute were not granted to any person before they were granted to his vendor in 1963. But the respondents carefully and deliberately let the opportunity of destroying the appellant’s case under the fire of cross-examination to slip from them. In my view, as the appellant had discharged the general onus of proof on him of tracing his possessory title to the Oba of Benin, it was incumbent on the respondents to prove their own title likewise before the issue of priority of their grant could arise. As they withheld the vital evidence in proof of the signature of their application and recommendation for a grant by the appropriate officers of the Plot Allotment Committee, P.W.4 and P.W.5, by failing to ask them to confirm their signatures while in the witness box, I feel entitled to draw the inference under section 148(d) of the Evidence Act that if they had asked the question the answer thereto would have been unfavourable to them.

It appears clear to me from all I have been saying that the attempt of the respondents to trace their possessory title over the land to the Oba of Benin snapped somehow. So, no question of priority as between their titles and those of the appellant could arise. I agree with the learned counsel for the appellants that illiteracy of the parties was not in issue on the pleadings. So, I cannot see how it became a decisive issue in the determination of the case before the Court of Appeal.

I also agree with him that under Benin Customary Law a ward pointer need not be a surveyor. He only needs to be an appropriate officer of the Committee. P.W.4 and P.W.5 were duly qualified to act as pointers or inspectors for valid plot allocation.

All the issues raised in this appeal having been resolved in favour of the appellant, the appeal must be, and is hereby, allowed. I set aside the judgment of the Court of Appeal including the order as to costs in Appeal No. CA/B/149/84 and restore the judgment of the High Court.

I assess costs in favour of the appellant in the sum of N500.00, which is inclusive of out-of-pocket expenses of N321.00, in this Court, and N300.00 in the Court of Appeal.


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