OBADINA & ORS. v FASOYINRO

OBADINA & ORS. v FASOYINRO


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 24TH FEBRUARY, 2017


Appeal No: CA/I/32/2009
CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA, JCA

HARUNA SIMON TSAMMANI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

S. OLATUNJI OBADINA

OLUGBENGA OLADAPO OBADINA

MOSES OLUSOJI OYELEKAN

STANBIC IBTC BANK PLC

(APPELLANT)

AND

MRS. A.M. FASOYINRO

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Interference with Evaluation of Evidence – Exceptions in which an appellate Court will interfere with evaluation of evidence made by a trial Court

Circumstances in which an appellate Court will interfere with evaluation of evidence made by a trial Court

“…However, the Appellate Court will interfere with the findings of facts and evaluation of evidence by the trial Court where the evaluation and findings are perverse and show misapprehension of the facts. See ARE V IPAYE (1990) NWLR (PT. 132) 298.”Per IYIZOBA, JCA read in context

B. EVIDENCE
2. Evaluation of Evidence – Duty of the trial judge to evaluate evidence and ascribe probative value

Whether evaluation of evidence and ascription of probative value is a primary function of the trial Court

“Generally evaluation of evidence and ascription of probative value to the evidence is essentially a matter at the discretion of the trial Judge who saw the witnesses, listened to them, watched their demeanour and is in a position to assess their credibility. Where the trial Judge has unquestionably evaluated the evidence and justifiably appraised the facts it is not the business of the appellate Court to interfere or to substitute its own views for the views of the trial Court. There is a plethora of authorities on this. To cite a few; see the following: WOLUCHEM V. GUDI (1981) 5 SC. 291; IBANGA V USANGA (1982) 5 SC (REPRINT) 49; AJAO V ALAO (1986) NWLR (PT. 45) 802; OKUNZUA V. AMOSU (1992) NWLR (PT. 248) 416; TERIBA V. ADEYEMO (2010) 13 NWLR (PT. 1211) 242.” Per IYIZOBA, JCA read in context

C. LAND LAW
3. Registrable Instrument – Conditions for admissibility of an instrument

Meaning of instrument; effect of non-registration of a registrable instrument

“…See Section 2 of the Land Instrument Registration Law of Ogun State which defines Instrument as “a document affecting land in the State whereby one party (here-in-after
called the grantor) confers, transfer, limits, changes or extinguishes in favour of another party (herein after called the grantee) any right or title to or interest in land in the State” and Section 16 of the Land Instrument Registration Law of Ogun State ap 53 which provides that no instrument shall be pleaded or given in evidence in any Court affecting any land unless the same shall have been registered in the Land Registry. See the cases cited by learned counsel: AGBODIKE V. ONYEKABA (2001) 10 NWLR (PART 722) 576 @587 C- E; BAMGBEGBINN V. ORIARE (2001) 5 NWLR (PART 707) 628 @ 653 C; ABOLARIN V. OGUNDELE (2012) 10 NWLR (PT.1308) 253 C- F. Under Section 15 of the Land Instruments Registration Law of Ogun State, an instrument affecting land under Section 2 of the Law shall not be pleaded and is inadmissible in evidence unless it is registered. Learned counsel helpfully cited the case of UDO O V. GOV. AKWA IBOM STATE (2010) 11 NWLR (PT. 1205) 322 @ 336 H where it was held that a Court can only determine an issue on legally admissible evidence and that Courts have no discretion to act, even with the consent of the parties, on evidence made inadmissible by express provision of a statute. Also helpful is the case of NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) 117 @ 136-137 H-A cited by counsel for the Respondent where the SC held:

“a document that is inadmissible in law is invalid for all intents and purposes. It cannot form the basis of any competent finding of a Court of record……… where a document is
wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents.” Per IYIZOBA, JCA read in context

4. Document of Title – Elements required of a document of title for it to be sufficient in a claim for declaration of title to land

Whether mere production of document of title is sufficient in a claim for declaration of title to land

“The law is settled that the mere production of a Deed of Conveyance or other instrument of title will not automatically entitle a party to the title stated therein. For such document to lawfully confer title, the Court must satisfy itself that:
(a) The document is genuine or valid.

(b) It has been duly executed, stamped and registered.

(c) The grantor has the authority and capacity to make the grant.

(d) The grantor has in fact what he purposes to grant; and

(e) The grant has the effect claimed by the holder of the instrument.

There must be concurrence of all the above stated elements before the document or instrument can validly transfer title. See Ayorinde v. Kuforiji (2007) 4 NWLR (pt.1024) p.341; Romaine v. Romaine (1992) 4 NWLR (pt.238) p.650 and Dabor v. Abdullahi (2005) 9 W.R.N. p.11.” Per TSAMMANI, JCA read in context

D. PRACTICE AND PROCEDURE
5. Service of Court Processes – Appropriate mode of service of processes on a company

Proper mode of service of processes on a Company

“Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules, 1987. Permit me to again reproduce the rule: “When a suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same or document to any director, secretary, or other principal officer, OR by leaving it at the office of the corporation or company.” What is meant by the phrase above, “the office of the corporation or company?” Does this mean the registered or head office or any of its offices such as branches? In the case of NEWSWATCH COMMUNICATIONS LTD V. ATTA (SUPRA), the Court of Appeal held as quoted above that by the provisions of Order 12 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules service was properly effected by leaving the processes in the Appellant’s Branch Office within jurisdiction. IN MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG (2011) LPELR-9055 (CA), another Court of Appeal judgment it was held: “… Thus the various decisions have consistently been to permit service of processes at the office of the Company not being necessarily the registered office; hence the decisions of this Court in Bello v. N.B.N (1992) 6 NWLR (Pt. 246) 26G; U.B.N Plc v. Orharhuge (2000) 2 NWLR (Pt. 645) 495; Newswatch Communications v. Attah (2000) 2 NWLR (Pt. 646) 592; Daewoo Nig. Ltd. V. Uzoh (2008) All FWLR (Pt. 399) 456 among others. By the combined meaning or effect of Section 78 of CAMA cited above, and Order 12 Rule 8 of the High Court Rules, a process is served on a company by:

(a) Giving the writ or document to any Director, Secretary or other principal office.

(b) By leaving it at the office of the corporation or company.” By the above authorities, it will appear that the office of the corporation or company in (b) above includes a branch office. However the Supreme Court in the case of MARK VS. EZE (2004) 5 NWLR (PT. 865) 54 @ 78 – 79 G -D held that service on a company must be at the registered office of the company and that it is bad and ineffective if done at a branch office of the company. The case went further to say that substituted service cannot apply to a company as it applies only when personal service cannot be effected and that since personal service can only be effected on natural or juristic persons; the procedure for substituted service is not applicable to a company. The substituted service in the above case was by posting. There were unresolved conflicting affidavit evidence as to whether or not service was duly effected. Since the issue was one of non-service, it was inevitable that judgment would be set aside. See the observation in MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG (SUPRA): “In the case of Mark v. Eze (2004) 5 NWLR (Pt. 865) 54 cited by the learned counsel for the Appellant, the Court had ordered service on a registered company by pasting on the door of its office. The Appellant effectively debunked the service allegedly carried out by the Bailiff of Court meaning that there was lack of service much unlike the instant case where the Appellant was served and participated at the hearing of the suit up to judgment.” The conclusion I come to is this: Since Mark v. Eze is a Supreme Court judgment, the phrase “OR by leaving it at the office of the corporation or company” as contained in Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules, 1987 must be interpreted to mean the registered office of the corporation. But where service at the branch office is by order of the Court and the complaint is improper service and not lack of service and the Appellant participated at the hearing of the suit without complaining up to judgment, it is certainly too late in the day to raise the issue on appeal.” Per IYIZOBA, JCA read in context

6. Service of Court Processes –

Effect of failure of a party to apply to regularize an irregular service on time

“… I am in total agreement with the submissions of learned counsel for the Respondent on this point. I refer to the quotation set out by the Respondent in his brief from the case of AGBEBAKU V. STATE (2015) ALL FWLR, PART 791 C.A 1423 AT PG. 1442 B – C where the Court observed:

“I agreed with learned counsel for the respondent’s submission that there is a distinction between improper service and non-service and that an irregular service can be set aside by the Court upon timeous application by the aggrieved party. The failure of a party to apply timeously for regularization of irregular service is deemed as acquiescence or waiver of such irregularity. Ogbuagu JSC in Chief Abe and Anor. V. U.B.N. Plc. (2005) All FWLR (pt. 291) 1727 at 1738, reiterated the view that technical justice is no justice where a party is made aware of proceedings then he cannot complain of lack of service.” Per IYIZOBA, JCA read in context


LEAD JUDGMENT DELIVERED BY IYIZOBA, JCA


This is an appeal against the judgment of the High Court of Ogun State Abeokuta in Suit No.AB/87/2000 delivered by O. O. OLAPADE J. on the 31st day of October, 2006. The Respondent as Plaintiff instituted this suit against the 1st – 3rd Appellants who were the Defendants at the lower Court claiming as follows:

1. Declaration that the Plaintiff and the 1st Defendant are the only children of Chief (Mrs) E. O. Obadina (Deceased) and are entitled to inherit her property upon her death.

2. Declaration that Under Egba Native Law and Custom, the 1st Defendant cannot alienate any of the properties forming the Estate of Mrs E. O. Obadina whether by sale, lease, tenancy or in any other manner whatsoever to the 4th Defendant and/or any other person without the concurrence of the plaintiff.

3. Declaration that any disposition or alienation of any of the said properties whether by sale, lease, tenancy or in any other manner whatsoever by all or any of the 1st – 3rd Defendants to the 4th Defendant and/or any other person without the concurrence of the plaintiff is null and void.

4. An order setting aside the purported alienation of the landed property at 2A, Lantoro Road, Isale-Ake, Abeokuta whether by sale, lease, tenancy or in any other manner whatsoever by all or any of the 1st – 3rd Defendants to the 4th Defendant.

5. Injunction restraining the 1st – 3rd Defendants whether by themselves, their privies, servants, agent or anybody deriving authority through them from alienating, exercising control, entering into any transaction, taking over the management or dealing with any persons or group of persons in respect of the said properties.

6. Declaration that the application by the 2nd and 3rd Defendants for letters of Administration in respect of the Estate of the said Chief (Mrs) E. O. Obadina to which they subscribed in conjunction with the 1st defendant is fraudulent.

7. An Order directing the 1st Defendant to render and file a comprehensive statement of account of all monies collected in respect of the said properties.

The Plaintiff/Respondent and the 1st Defendant/Appellant are sister and brother of the full blood. Their mother while alive acquired certain properties. The 1st Defendant/Appellant claimed that shortly before their mother died she made a gift inter vivos to him of the properties vide Exhibit ‘O’. The Respondent in her writ of summons and statement of claim alleged that their late mother died intestate; that the 1st Appellant was too troublesome during their mother’s lifetime for their mother to have made any gift inter vivos to him; that Exhibit ‘O’ Authority to ownership of the property was a forgery and that the Court should declare both of them (Plaintiff/Respondent and the 1st Defendant/Appellant joint owners of the property contained in Exhibit ‘O’).

In her 29 paragraph 1st Further Amended Statement of claim at pages 242 – 246 of the Record; the Plaintiff/Respondent alleged inter alia, fraud, forgery and misrepresentation against the Defendants/Appellants. Upon the service of the writ of summons and statement of claim on the Defendants/Appellants, the Appellants filed a defence to the Plaintiff/Respondent’s claim and a counter claim. The Plaintiff/Respondent filed a Reply to the statement of defence and counter claim; and then brought an application for, amongst many other reliefs, leave to join the 4th appellant bank, to whom the Appellant had sold the property as a party to the suit and to issue and serve the processes on the said 4th Appellant by substitution to wit at its branch office in Abeokuta. The motion on notice is at page 79 of the Record. The Appellants in opposition filed a counter-affidavit. In a well considered Ruling delivered on 13/08/04, Ayobode Lokulo-Sodipo J who then presided over the case granted the application. See pages 97 – 114 of the Record. The parties led evidence on the pleadings; called several witnesses and tendered several documents. The learned trial judge O. O. OLAPADE J who had taken over the suit, on the 31st day of October 2006 delivered judgment granting all the reliefs claimed by the Plaintiff/Respondent and dismissing the Defendants/Appellants’ counter claim. Dissatisfied with the judgment, the Defendants appealed by Notice of appeal dated and filed 26/01/07 containing 10 grounds of appeal. The parties filed and exchanged briefs of argument. The Appellants’ brief settled by J.A. Adebisi Esq. is dated and filed 9/05/16 but deemed properly filed and served on 24/10/16. The Respondent’s brief of argument settled by Abiodun Olabampe Esq. is dated and filed on 15/11/16.

Out of the 10 grounds in their Notice of Appeal, the Appellants formulated the following five issues for determination:

1. Whether the service of the originating processes on the 4th Defendant through substituted means was proper in the circumstance of this case. Ground 2.

2. Whether the Plaintiff proved her case to be entitled to judgment. Grounds 3, 4 and 5.

3. Whether Exhibit ‘O’ Authority to ownership of property was in the circumstance of this case admissible. Grounds 6 and 9.

4. Whether the allegation of forgery of Exhibit ‘O’ was proved beyond all reasonable doubt by the Plaintiff. Grounds 7 and 8.

5. Whether the trial judge properly considered the counter claim of the 1st Appellant. Ground 10.

Learned counsel for the Respondent in his brief distilled from the Appellants’ 10 grounds of appeal, the following two issues:

A. Whether the service of the originating processes on the 4th Defendant through substituted means i.e. at the Branch Office in Abeokuta was proper in the circumstances of this case.

B. Whether in arriving at the decision on the Plaintiff claim and the Defendants’ counter claim in this matter, the Trial judge properly considered and/or evaluated the evidence and the issues raised by parties in the suit.

I am satisfied that the two issues distilled by the Respondent encapsulate the Appellants’ five issues. I shall therefore in the determination of this appeal adopt the two issues formulated by the Respondent.

ISSUE ONE:

Whether the service of the originating processes on the 4th Defendant through substituted means i.e. at the Branch Office in Abeokuta was proper in the circumstances of this case.

APPELLANTS’ ARGUMENTS:

Learned counsel on this issue submitted that the 4th Appellant is a Limited Liability Company with its registered or head office at IBTC Place, Walter Carrington Crescent Victoria Island, Lagos. He submitted that Section 78 of the Company and Allied Matters Act Cap 20 Laws of the Federation 2004 provide the procedure for service on the Company and that by the said Section; a Company must be served at the registered office of the Company; that the said service must be effected by giving the process to any Director, Trustee, Secretary or other principal officer at the Registered Office of the Company or by leaving the process at its office. Counsel further submitted that the Respondent, by motion on notice, sought and obtained leave of the Court to serve the 4th Appellant by substituted means to wit by serving the 4th Defendant at its branch office in Abeokuta. He opined that this is in utter violation and in breach of the provision of Section 78 Company and Allied Matters Act; and that the service at the bank’s branch office was consequently bad and ineffective. Counsel further submitted that the need for substituted service would only arise where personal service cannot be effected and since personal service can only be effected on a natural person, the procedure for substituted service is not applicable to a Company. He relied on the case ofMARK VS. EZE (2004) 5 NWLR (PT. 865) 54 @ 78 – 79 G –D. He urged us to hold that there was no service on the 4th Defendant/Appellant and to set aside the judgment as it affects 4th Appellant.

RESPONDENT’S ARGUMENTS:

Learned counsel in reply submitted that by the present position of the law on service of Court processes on corporations, the order of the lower Court permitting service of the processes at the 4th defendant’s branch in Abeokuta was good and proper service. Counsel quoted Section 78 of the Company and Allied Matters Act 1990 and submitted that the provision differs from the 1968 Act. He contended that under the 1990 Act, service of a Court process is to be effected in accordance with the domestic local provisions of the Rules of each State High Court. He cited the following cases: U.B.N PLC V. ORHARHUGE (2000) 2 NWLR (PART 645) C.A 495 @ 509 – 510 H – A; FIRST BANK OF NIGERIA LTD V. NJOKU (1995) 3 NWLR (PT . 384) 457 . Counsel quoted from NEWSWATCH COMMUNICATIONS LTD V. ATTA (2000) 2 NWLR @ 604, A – C, that:

“The intendment of Section 78 of the Companies and Allied Matters Act, 1990 is to improve service of Court processes on companies or corporations which hitherto had been cumbersome under the Companies Act, 1968. Under Section 78 of the Companies and Allied Matters Acts, 1990, service of Court processes on a company or corporation is to be effected in accordance with the domestic local provisions of each High Court. In other words, the service of Court processes on a company is regulated by the domestic rules of the relevant High Court. In the instant case, by the provisions of Order 12 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules service was properly effected by leaving the processes in the Appellant’s Branch Office within jurisdiction.”

Learned counsel submitted that the above provision of Order 12 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules considered in the above case is mutatis mutandi with the provision of Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules 1987, which provides thus:

“When a suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same or document to any director, secretary, or other principal officer, OR by leaving it at the office of the corporation or company.”

Counsel also relied on COBRA LTD V. OMOLE ESTATES & INVESTMENT LTD (2000) 5 NWLR (PT. 655) 1 @ 1 B–C & G. Counsel submitted that by virtue of the combined effect of Section 78 of the Companies and Allied Matter Act, 1990 and Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules, 1987, the Court processes served on the 4th defendant by substituted means at its branch office in Abeokuta as ordered by the Court is proper, sufficient and valid service on the 4th Defendant. He cited FIRST BANK OF NIGERIA LTD. V. NJOKU (1995) 3 NWLR (PT. 384) 457 @ 479 – 480, H – A, PER ORAH JCA.

Learned counsel urged us to note that the issue raised by the Appellant is improper service; and that the Appellants admitted that the 4th defendant/Appellant was served at the branch office instead of the head office. He contended that the Appellants upon being served with the processes did not take any step to set aside the purported irregular service. He submitted that the 4th defendant/Appellant having not taken any step to complain timeously at the trial Court about the irregularity in the service of the originating processes on the 4th Defendant as alleged, the Appellants are stopped from raising issues of irregularity in the service after judgment in the suit. He cited AGBEBAKU V. STATE (2015) ALL FWLR, PART 791 C.A 1423 AT PG. 1442 B – C.

Counsel submitted that the 4th defendant/appellant who did not deem it fit to complain about the service of Court processes in 2004 cannot now wake up from its slumber after final judgment in 2006 to raise issue of improper service of originating process. He finally submitted that the 4th Appellant having been duly served in accordance with due process of law as recognized by the rules of Court, the judgment of the trial Court is binding on the 4th defendant and all the parties to the suit.

RESOLUTION:

The first question that calls for resolution here is whether the service was indeed in line with the provision of Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules, 1987. Permit me to again reproduce the rule:

“When a suit is against a corporation or a company authorized to sue and be sued in its name or in the name of an officer or trustee, the writ or other document may be served subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same or document to any director, secretary, or other principal officer, OR by leaving it at the office of the corporation or company.”

What is meant by the phrase above, “the office of the corporation or company?” Does this mean the registered or head office or any of its offices such as branches?

In the case of NEWSWATCH COMMUNICATIONS LTD V. ATTA (SUPRA), the Court of Appeal held as quoted above that by the provisions of Order 12 Rule 8 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules service was properly effected by leaving the processes in the Appellant’s Branch Office within jurisdiction. IN MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG (2011)

LPELR-9055 (CA) , another Court of Appeal judgment it was held:

“………….. Thus the various decisions have consistently

been to permit service of processes at the office of the Company not being necessarily the registered office; hence the decisions of this Court in Bello v. N.B.N (1992) 6 NWLR (Pt. 246) 26G; U.B.N Plc v. Orharhuge (2000) 2 NWLR (Pt . 645) 495; Newswatch Communications v. Attah (2000) 2 NWLR (Pt. 646) 592; Daewoo Nig. Ltd. V. Uzoh (2008) All FWLR (Pt.399) 456 among others.

By the combined meaning or effect of Section 78 of CAMA cited above, and Order 12 Rule 8 of the High Court Rules, a process is served on a company by:

(a) Giving the writ or document to any Director, Secretary or other principal office.
(b) By leaving it at the office of the corporation or company.”

By the above authorities, it will appear that the office of the corporation or company in (b) above includes a branch office. However the Supreme Court in the case of MARK VS. EZE (2004) 5 NWLR (PT. 865) 54 @ 78 – 79 G –D held that service on a company must be at the registered office of the company and that it is bad and ineffective if done at a branch office of the company. The case went further to say that substituted service cannot apply to a company as it applies only when personal service cannot be effected and that since personal service can only be effected on natural or juristic persons; the procedure for substituted service is not applicable to a company. The substituted service in the above case was by posting. There were unresolved conflicting affidavit evidence as to whether or not service was duly effected. Since the issue was one of non-service, it was inevitable that judgment would be set aside. See the observation in MOBIL PRODUCING NIGERIA UNLIMITED V. OTOABASI EFFIONG (SUPRA):

“In the case of Mark v. Eze (2004) 5 NWLR (Pt. 865) 54 cited by the learned counsel for the Appellant, the Court had ordered service on a registered company by pasting on the door of its office. The Appellant effectively debunked the service allegedly carried out by the Bailiff of Court meaning that there was lack of service much unlike the instant case where the Appellant was served and participated at the hearing of the suit up to judgment.” The conclusion I come to is this: Since Mark v. Eze is a Supreme Court judgment, the phrase “OR by leaving it at the office of the corporation or company” as contained in Order 12 Rule 8 of the Ogun State High Court Civil Procedure Rules, 1987 must be interpreted to mean the registered office of the corporation. But where service at the branch office is by order of the Court and the complaint is improper service and not lack of service and the Appellant participated at the hearing of the suit without complaining up to judgment, it is certainly too late in the day to raise the issue on appeal. From the Record of Appeal, throughout the proceedings, only the 1st appellant was present in Court, all the remaining three Defendants including the 4th Defendant were not in Court. Learned counsel for the Defendants always announced appearance for the Defendants. There was no indication whatsoever that he was not representing the 4th Defendant. Even in the Notice of Appeal at page 339, Comrade Femi Jolaoso of Femi Jolaoso Chambers signed as counsel for the four Defendants/Appellants inclusive of the 4th Appellant – Chartered Bank Plc. It is consequently safe to conclude that the 4th Appellant participated fully throughout the hearing of the case at the lower Court and did not complain of lack of service or improper service. It is certainly too late in the day to raise the issue of improper service on appeal. I am in total agreement with the submissions of learned counsel for the Respondent on this point. I refer to the quotation set out by the Respondent in his brief from the case of AGBEBAKU V. STATE (2015) ALL FWLR, PART 791 C.A 1423 AT PG. 1442 B – C where the Court observed: “I agreed with learned counsel for the respondent’s submission that there is a distinction between improper service and non-service and that an irregular service can be set aside by the Court upon timeous application by the aggrieved party. The failure of a party to apply timeously for regularization of irregular service is deemed as acquiescence or waiver of such irregularity. Ogbuagu JSC in Chief Abe and Anor. V. U.B.N. Plc. (2005) All FWLR (pt. 291) 1727 at 1738, reiterated the view that technical justice is no justice where a party is made aware of proceedings then he cannot complain of lack of service.”

From the record of proceedings, the 4th Appellant did not act as a party who had any issue with the method of service on it. To concede to the argument of the Appellant on this issue at this late hour after judgment had been delivered would be a clear case of allowing technicality override justice. Issue one is resolved against the Appellant.

ISSUE TWO:

Whether in arriving at the decision on the Plaintiff claim and the Defendants’ counter claim in this matter, the Trial judge properly considered and/or evaluated the evidence and the issues raised by parties in the suit.

APPELLANTS’ ARGUMENTS:

This issue covers Appellant’s issues 2 – 5.

Under issue 2, learned counsel submitted that none of the witnesses called by the Respondent gave any convincing evidence as to the bad character of the 1st Appellant which would have made it impossible for their mother to have made the gift inter vivos to him. It was contended that the findings of the trial Court on the bad character of the 1st Appellant were not supported by evidence adduced in the matter, the trial judge having earlier held at page 308 of the Record that “nothing has been placed before this Court to show that by 6/10/99, mother and child had not reconciled. After all it is the plaintiff that is relying on the bad character of the 1st Defendant.”

On their issue 3, learned counsel submitted that the trial Judge erred in holding Exhibit “O” inadmissible on account of noncompliance with the provisions of Section 2 of the Land Instrument Registration Laws of Ogun State; that even if Exhibit “O” was not registered, it could still be admissible as evidence of the fact of the gift inter vivos. Learned counsel submitted that it was wrong for the trial judge to have found for the Plaintiff/Respondent on the basis of Exhibit O when it had been rejected as inadmissible and when the Court had earlier on page 311 of the Record found that the allegation that the Defendants applied for Letters of Administration in respect of properties listed in Exhibit “O” was not established.

On their issue 4, counsel submitted that the allegation of forgery of Exhibit “O” was not proved beyond reasonable doubt. On issue v, Counsel submitted that the learned trial judge failed to give due consideration to the counter claim of the 1st Appellant. He urged us to quash the findings, judgment and orders of the trial judge and to grant the counter claim of the 1st Appellant.

RESPONDENT’S ARGUMENTS:

Learned counsel submitted that the learned trial judge had identified in the judgment the relevant issues for determination as (1) What were the properties left behind by the deceased at her death and (2) Who are those entitled to the intestate properties. Counsel submitted that as stated in the judgment all other issues were considered and determined based on these two main heads. He submitted that in evaluating Exhibit “O”, the learned trial judge considered the following:

1. Admissibility of Exhibit O in view of the provisions of Section 2 of the Lands Instrument Registration Laws of Ogun State 1978 and the Property and Conveyancing Law Cap 100, Laws of Ogun State 1978.

2. Whether the exhibit is a forgery.

3. Whether there was attempt by the 1st to 3rd Defendants to obtain letters of administration in respect of same properties covered by Exhibit O, knowing the futility in placing reliance on Exhibit O.

Counsel submitted that the trial judge rightly concluded that Exhibit O – Authority to Ownership of Landed property being a document affecting land and not having been registered it cannot be pleaded or admitted in evidence to prove title of the landed property. Counsel submitted relying on TORTI V. UKPABI (1984) 1 SCNLR 214 that admissibility of evidence depends on the purpose for which it is being tendered and that the test to be applied in considering whether evidence is admissible is its relevance to the matters in issue. He argued that the document Exhibit ‘O’ was tendered by the 1st Defendant/Appellant to prove his sole ownership of the property of the deceased, Late Mrs. Obadina who was undisputably the mother of the Plaintiff and the 1st Defendant. The Exhibit consequently affected land and by Section 16 of the Land Instrument Registration Law of Ogun State Cap 53, no instrument shall be pleaded or given in evidence in any Court affecting any land unless the same shall have been registered in the Land Registry. Counsel referred to the cases of AGBODIKE V. ONYEKABA (2001) 10 NWLR, PART 722 C. A. 576 AND BAMGBEGBINN V. ORIARE (2001) 5 NWLR PART 707, C.A 628 @ 653 C; ABOLARIN V. OGUNDELE (2012) 10 NWLR (PT 1308) 253. Learned counsel submitted that the trial court’s act of admitting and subsequently rejecting and expunging Exhibit “O” from the record of the case is in conformity with law. Counsel referred to the case of UDORO V. GOV. AKWA IBOM STATE (2010) 11 NWLR (PT. 1205) 322 @ 336 H where it was held that a Court can only determine an issue on legally admissible evidence; and has no discretion to act, even with the consent of the parties, on evidence made inadmissible by express provision of a statute. Learned counsel submitted that the trial Court having expunged Exhibit “O” from the record of the Court, the Court rightly granted the claim that both the plaintiff and the 1st Defendant being children of Chief Mrs. Obadina are entitled to inherit her property upon her death in accordance with Egba Native Law and Custom.

Learned counsel further submitted that apart from the inadmissibility of Exhibit “O”, the Learned Trial Judge also acted on the evidence of the Expert, PW5, a police Inspector and Document Examiner, who after conducting thorough examination and comparison of Exhibit “O” with Exhibits M1 – M4, came to the conclusion that Exhibit “O” was not signed by the deceased. Learned counsel relying on the cases OF KAYODE VENTURES LIMITED V. HON. MINISTER, F.C.T (2010) ALL FWLR, (PART 519) 1035 @ 1103 – 1105 AND SUFIANU V. ANIMASHAUN (2000) 14 NWLR (PART 688) 650 @ 668 submitted that it is not the function of an appellate Court to interfere in the assessment of evidence and the ascription of probative value thereto when the trial Court which had the advantage of hearing and seeing the witnesses testify has satisfactorily performed that task. Counsel submitted that the trial Court having satisfactorily performed the task, this Court cannot interfere.

On the Appellants’ contention that the counterclaim was not considered by the trial judge, learned counsel submitted that the trial Court in its judgment adequately considered the counterclaim and dismissed same as they are based on the same issues set out and considered by the Court in the main suit. Counsel submitted that the judgment of the lower Court did not in any way occasion a miscarriage of justice. He urged us to hold that the judgment of the lower Court granting the claims of the Respondent and dismissing the counterclaim of the 1st Appellant is valid and to dismiss the appeal as lacking in merit.

RESOLUTION:

This issue is indeed a simple one.

Generally evaluation of evidence and ascription of probative value to the evidence is essentially a matter at the discretion of the trial Judge who saw the witnesses, listened to them, watched their demeanour and is in a position to assess their credibility. Where the trial Judge has unquestionably evaluated the evidence and justifiably appraised the facts it is not the business of the appellate Court to interfere or to substitute its own views for the views of the trial Court. There is a plethora of authorities on this. To cite a few; see the following: WOLUCHEM V. GUDI (1981) 5 SC. 291; IBANGA V USANGA (1982) 5 SC (REPRINT) 49; AJAO V ALAO (1986) NWLR (PT.45) 802; OKUNZUA V. AMOSU (1992) NWLR (PT.248) 416; TERIBA V. ADEYEMO (2010) 13 NWLR (PT. 1211) 242.

However, the Appellate Court will interfere with the findings of facts and evaluation of evidence by the trial Court where the evaluation and findings are perverse and show misapprehension of the facts. See ARE V IPAYE (1990) NWLR (PT. 132) 298.

Having stated the law as above, I now have to consider the findings and evaluation of the facts in this case by the learned trial judge to determine whether the findings are perverse requiring that we intervene as urged on us by the Appellants. First, what really is the bone of contention here? It is simply whether the deceased mother of the 1st Appellant and the Respondent Mrs Obadina executed Exhibit “O” making a gift inter vivos of her assets to the 1st Appellant alone to the exclusion of the Respondent; thereby excluding the application of Egba Native Law and custom under which the two would have inherited the properties of their deceased mother in equal shares. The Respondent called seven witnesses while the 1st Appellant testified and called only DW2 who was the 3rd Defendant in the suit at the lower Court. The findings and evaluation of evidence as regards Exhibit “O” by the learned trial Judge is at pages 308 to 319 of the printed Records. The lower Court considered in the main whether Exhibit “O” is a Land Instrument which ought to have been registered as required by the Land Instruments Registration Law Cap S3 Laws of Ogun State 1978 and whether the Exhibit was forged. On registration, after examining the relevant law and authorities, the learned trial Judge held at page 314:

“Exhibit O bears no indication of any registration as aforesaid. Though stamp duty was paid on it, it was never presented for registration. The need for registration under the Law is clear. It is to register/put on record the interest created by the Instrument for the Notice of all. None registration of Exhibit O makes it an imperfect gift of the properties it sought to bestow on the 1st Defendant. Imah v. Okogbe (1993) 12 SCNJ page 57 at 71.

Section 16 of the Land Instruments Registration Law Cap 53 having prohibited such unregistered instrument from being pleaded and given in evidence, its admissibility now becomes relevant. It is trite that the Court is not permitted under any circumstance to admit and act on legally inadmissible evidence. If such evidence had been admitted, the Court must reject it when giving its final judgment even if it amounts to overruling itself to do so Shanu v. Afribank Plc (2002) 6 SCNJ page 454 or (2002)11 NSCQR page 51 at 74.
In the light of the position of the law, I hold that Exhibit O was wrongly admitted and it is hereby rejected and expunged from the record in this case.”

On their issue iii, learned counsel for the Appellants reacting to the above at page 8 paragraph 6.02 argued thus:

“6.02 The trial judge in the course of delivering the judgment held that Exhibit ’O’ was wrongly admitted and so rejected same and expunged it from the record on account of non-compliance with the provisions of Section 2 of the Land Instrument Registration Laws of Ogun State.

6.03 Submit that while we concede that no legal interest could be acquired in respect of a registrable instrument which has not been registered; we respectfully submit that non-registration of instrument does not render same inadmissible.

6.04 Submit that Exhibit ‘O’ even though not registered was admissible as evidence of the fact of the gift inter vivos and can as well confer equitable interest on the 1st appellant.

In the case of SAKA BURAIMOH VS. MR KARIMU (1991) 9 NWLR (Pt. 618) 310 @ 325, it was held that: “An unregistered document which falls within Section 2 of the Land Instrument Registration Law can be admitted as a receipt or as evidence of money transaction and memorandum of sales agreement, no more no less. It cannot be used to prove title and it cannot be pleaded or given as evidence affecting land. It is regarded however as evidence of payment of money and if coupled with possession cases, it may give right to an equitable interest enforceable.”

6.05 Discernible from the above decided case, it was therefore wrong for the trial judge to have rejected Exhibit ‘O’ and expunged same from the record.

1. It is submitted most humbly that whether Exhibit ‘O’ could have conferred legal title of the properties listed therein is quite different from the fact that it ought to have been admitted so as to have enabled the trial Court determine whether the 1st Appellant had indeed acquired legal or equitable interest on the properties listed therein.

2. The wrongful rejection of Exhibit ‘O’ therefore deprived the trial Court the opportunity of considering whether any interest either legal or equitable was acquired by the 1st Appellant.

6. 06 The wrongful rejection of the Exhibit ‘O’ has therefore occasioned miscarriage of justice in this case.”

With all due respect to learned counsel for the Appellants, the views expressed above misrepresent the law. Exhibit “O” was tendered by the 1st Appellant to prove sole ownership of the properties of their deceased mother. I agree totally with the submissions of learned counsel for the Respondent that the trial Court’s act of admitting and subsequently rejecting and expunging Exhibit “O” from the record is in conformity with law. See Section 2 of the Land Instrument Registration Law of Ogun State which defines Instrument as “a document affecting land in the State whereby one party (here-in-after called the grantor) confers, transfer, limits, changes or extinguishes in favour of another party (herein after called the grantee) any right or title to or interest in land in the State” and Section 16 of the Land Instrument Registration aw of Ogun State Cap 53 which provides that no instrument shall be pleaded or given in evidence in any Court affecting any land unless the same shall have been registered in the Land Registry. See the cases cited by learned counsel: AGBODIKE V. ONYEKABA (2001) 10 NWLR (PART 722) 576 @587 C- E; BAMGBEGBINN V. ORIARE (2001) 5 NWLR (PART 707) 628 @ 653 C; ABOLARIN V. OGUNDELE (2012) 10 NWLR (PT.1308) 253 C– F.

Under Section 15 of the Land Instruments Registration Law of Ogun State, an instrument affecting land under Section 2 of the Law shall not be pleaded and is inadmissible in evidence unless it is registered. Learned counsel helpfully cited the case of UDORO V. GOV. AKWA IBOM STATE (2010) 11 NWLR (PT. 1205) 322 @ 336 H where it was held that a Court can only determine an issue on legally admissible evidence and that Courts have no discretion to act, even with the consent of the parties, on evidence made inadmissible by express provision of a statute. Also helpful is the case of NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) 117 @ 136–137 H–A cited by counsel for the Respondent where the SC held:

“a document that is inadmissible in law is invalid for all intents and purposes. It cannot form the basis of any competent finding of a Court of record……… where a document is wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents.”

The findings and evaluation of the evidence by the learned trial judge is sound and supported by the law and decided authorities. We have no reason whatever to interfere with the findings as they are definitely not perverse. The learned trial judge could have stopped there and that would have ended the case of the appellants; since the document by which he was claiming sole ownership of the properties was inadmissible to establish his claim. But out of caution his lordship went on to consider whether Exhibit “O” was forged. The particulars of forgery as stated in Paragraph 17(a) to (e) of the 1st Further Amended Statement of Claim at page 244 of the Record included the behaviour and character of the 1st Appellant which the Respondent alleged showed that he had always been a thorn in the flesh of their deceased mother Mrs Obadina and made it unlikely that she would have bestowed all her properties on him alone. Learned counsel for the Appellants had at page 5 paragraph 5.04 of their brief of argument submitted thus: “5.04 However while the 1st Appellant claimed that the properties listed in Exhibit ‘O’, authority to ownership of landed property were given to him by his mother during her lifetime, the Respondent contended that the 1st Appellant was such a prodigal child to have merited the gift from their mother.

5.05 The Respondent in making the assertion failed to prove woefully, the bad character of the 1st Appellant as asserted by her and neither were any of her witnesses able to establish the bad character of the 1st Appellant.”

Notwithstanding that strictly the bad character of the 1st Appellant was irrelevant and merely peripheral to the main issue, contrary to the above submissions of Appellants’ counsel, the learned trial judge held at page 316 of the Record:

“I think all put together, the Plaintiff believes her mother, who was in her right frame of mind, could not, given the history of 1st Defendant’s misbehaviour, have bestowed on him alone, all her properties. This view falls in line because a truly “beloved son” would have qualities far different from all that was told this Court about the 1st Defendant. Nothing complimentary has been said about his character. He also did not bother to really controvert these evidence of his character.

2nd Defendant who appears to be working along with the 1st Defendant did not put in any word concerning 1st Defendant’s character or relationship with his mother. I observed this witness very closely in the witness box. He did not strike me as a truthful witness. A retired Teacher and former Chairman of Obafemi/Owode Local Government he called himself. Yet he went ahead to lie in Exhibits B and C. He told the Court he appreciated the need to read over a document before appending his signature to same. Yet this witness said before this Court that he did not bother to read Exhibits B and C before signing and that it was a Lawyer who prepared it. He said Exhibit O was signed by the deceased in his presence few weeks before her death. I could not help noting in my Record Book his conduct in the witness box. He was very reluctant in answering questions under cross-examination and it took him a long time to admit that the deceased had suffered a protracted stroke before she finally died. He obviously knew the implication. Exhibit O was purportedly executed on 6/10/99 and the deceased died on 23/11/99. Just a little over a month thereafter.

DW2 (3rd Defendant herein) did not behave as, or appear to me a witness of truth. I believe he was acting in concert with the 1st Defendant and their collaboration smacks of mischief and fraud.”

The above findings and evaluation of the evidence of DW2 who supposedly witnessed the signing of Exhibit “O” by Mrs Obadina, the deceased mother of the 1st Appellant tells it all. Exhibits B and C were the documents signed by the 1st Appellant, DW2 and DW3 to enable them obtain letters of Administration of the Estate of Mrs. B.O. Obadina (deceased mother of the parties). Therein DW2 falsely claimed to be a son of the deceased. It is thus not surprising that the learned trial Judge found him an untruthful witness and that he acted in concert with the 1st Appellant and that their collaboration smacks of mischief and fraud. The findings are clearly not perverse and are supported by the evidence led in the case.

Learned counsel for the Appellant had under his issue iv claimed that the alleged forgery of Exhibit “O” being a criminal allegation was not proved beyond reasonable doubt. He contended that the learned trial Judge was wrong to have accepted hook, line and sinker the evidence of the hand writing expert PW5 without cautioning himself given the evidence of DW2 as to due execution; lack of evidence of the qualification of PW5 as a handwriting expert and the fact that Exhibits M-M4 (with which the signature of the deceased on Exhibit “O” were compared) were photocopies.

With due respect, the arguments are again misconceived and carry no weight at all. Learned trial Judge evaluated the evidence of DW2 and out rightly rejected him as a witness of truth for reasons already stated. PW5 gave evidence accepted by the learned trial judge that he is a police inspector and Document Examiner who had received training on Examination and comparison of Documents and their scientific identification at the Force CID Kaduna and that he had been fully involved in the analysis of documents for over 15 years. The Appellants did not challenge his claims in cross-examination; neither did they call any other hand-writing expert to contradict the evidence. The learned trial Judge had this to say at page 518 of the Record:

“Where the evidence of an expert is not challenged by that of any other expert, the trial Court has a duty to accept it and act upon it. WDN Ltd v. Oyibo (1992) 5 NWLR (Pt. 239) page 77 at 97. Akusobi v. Obinechie (2004) 2 NWLR (Pt. 857) page 355 at 370.

I note herein that PW5 has no interest of his own to pursue here. He gave his evidence smoothly and devoid of any embellishments. He stated the process he used to conduct his examination in his Report Exhibit N. His opinion was that Exhibit O was not signed by the signatory of Exhibits M1-M4 whom PW6 had stated was the deceased. In short Exhibit O was not signed by the deceased. That is the sum total of the expert evidence.

……………………….. From the materials before me I find that

Exhibit O was not the act of the deceased – Late Mrs Obadina. I believe PW5 in this regard.

Where evidence given by one party is left unchallenged/ uncontroverted by the other party who had the opportunity to do so, the Court is free to act on the unchallenged or uncontroverted evidence before it.
Uzoegwu v. Ifekandu (2001) 17 NWLR (Pt.741) page 49 at 70, 71.

I do agree with the Plaintiff that Exhibit O was forged. I find before me sufficient proof of forgery.”

The findings of facts and evaluation of the evidence in the case by the learned trial judge is unimpeachable. There is no merit whatever in the arguments of Learned counsel for the Appellants on their issues ii to iv. Most of the points raised are irrelevant to the primary issue which is whether Mrs Obadina did in fact execute Exhibit O transferring all her assets inter vivos to the 1st Appellant. The learned trial Judge in his judgment expertly dealt with the issue. Having ruled in favour of the Respondent as he did, and the Appellants having failed to adduce evidence in proof of the counter claim, the counterclaim was bound to fail. The learned trial Judge was right in dismissing the counter claim. Issue 2 is consequently also resolved against the Appellants.

Having resolved all the issues against the Appellants, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court is affirmed with N50, 000.00 costs in favour of the Respondent.

TSAMMANI, JCA

I read in advance the draft of the judgment delivered by my learned brother, C. E. Iyizoba, JCA.

The resolution of the dispute subject of this appeal was built on the validity of Exhibit ‘O’, which purports to be the instrument by which the deceased, Mrs. E. O. Obadina allegedly transferred her properties to the 1st Appellant. The law is settled that the mere production of a Deed of Conveyance or other instrument of title will not automatically entitle a party to the title stated therein. For such document to lawfully confer title, the Court must satisfy itself that:

(a) The document is genuine or valid.

(b) It has been duly executed, stamped and registered.

(c) The grantor has the authority and capacity to make the grant.
(d) The grantor has in fact what he purposes to grant; and

(e) The grant has the effect claimed by the holder of the instrument.
There must be concurrence of all the above stated elements before the document or instrument can validly transfer title. See Ayorinde v. Kuforiji (2007) 4 NWLR (pt.1024) p.341; Romaine v. Romaine (1992) 4 NWLR (pt.238) p.650 and Dabor v. Abdullahi (2005) 9 W.R.N. p.11.

In the instant case, the learned trial Judge found, and rightly so, that Exhibit ‘O’ is a registrable instrument but same was not registered. The document was also found not to be genuine, as same was found to be forged. Certainly, the Appellants who challenge the findings of the learned trial Judge had the duty to, by this appeal, demonstrate from the printed record that the findings of the trial Court were perverse or erroneous. This they failed to do.

I therefore concur with the findings and conclusion of my learned brother that this appeal lacks merit. It is accordingly dismissed. The judgment of the Court below in Suit No. AB/87/2000 delivered by O. O. Olapade, J (as he then was) on the 31st day of October, 2006 is hereby affirmed. I abide by the order on cost.

OKORONKWO JCA

I have been privilege to read in draft the judgment in this appeal by my learned brother Chinwe Eugenia Iyizoba.

I agree with his lordship in her holding that “The findings of facts and evaluation of the evidence in the case by the learned trial judge is unimpeachable.”

I too, will and do dismiss this appeal and being without any merit whatsoever. I adopt the orders made in the lead judgment.