OBADINA V. FASOYINRO (2017)

Background

This appeal arose from a dispute concerning properties acquired by the late Chief (Mrs.) E. O. Obadina. The respondent and the first appellant were full-blood siblings and were alleged to be the only children and heirs of the deceased. The respondent commenced proceedings before the High Court of Ogun State, Abeokuta, seeking declarations that she and the first appellant were jointly entitled to inherit their mother’s properties under Egba native law and custom. She also sought orders setting aside an alleged alienation of property at 2A, Lantoro Road, Isale-Ake, Abeokuta, restraining further dealings with the properties, challenging an alleged application for letters of administration, and compelling the first appellant to render an account of rents and other monies collected.

The first appellant maintained that the deceased had made a gift inter vivos of the properties to him alone. He relied principally on exhibit “O”, described as an authority to ownership of landed property. The respondent alleged that the document was forged and that their mother had died intestate. The fourth appellant, a bank to whom the property had allegedly been alienated, was joined as a defendant. The trial court granted leave for the originating processes to be served on the bank by substituted means at its Abeokuta branch. After trial, the High Court granted the respondent’s claims and dismissed the first appellant’s counterclaim. The appellants appealed.

Issues

1. Whether service of the originating processes on the fourth appellant at its branch office in Abeokuta, pursuant to an order for substituted service, was valid.
2. Whether the trial judge properly evaluated the evidence, determined the validity and alleged forgery of exhibit “O”, and adequately considered the respondent’s claim and the first appellant’s counterclaim.

Ratio Decidendi

The Court of Appeal held that, in light of the Supreme Court’s decision in Mark v. Eke, the expression “office of the corporation or company” in Order 12 rule 8 of the Ogun State High Court (Civil Procedure) Rules 1987 should ordinarily be understood as referring to the company’s registered office, rather than merely any branch office. Nevertheless, the court distinguished between non-service and irregular or improper service. Where a company has actual notice of the proceedings, participates through counsel, and fails to object promptly to the mode of service, the irregularity is waived or acquiesced in. It is too late to raise the complaint for the first time on appeal.

The court further reaffirmed that evaluation of evidence and the assessment of witness credibility are primarily matters for the trial court, which sees and hears the witnesses. An appellate court will not substitute its own assessment merely because it might have reached a different conclusion. Interference is justified only where the findings are perverse, unsupported by the evidence, or founded on a material misapprehension of the facts.

The court also held that an unregistered land instrument falling within the Land Instrument Registration Law of Ogun State cannot be pleaded or admitted in evidence to establish or transfer an interest in land. Exhibit “O” was tendered to prove the first appellant’s sole ownership of the deceased’s properties. Since it was an instrument affecting land and had not been registered, the trial judge was entitled to reject and expunge it, even though it had initially been admitted. A court may correct an earlier evidential error at judgment stage because its decision must be based only on legally admissible evidence.

Court Findings

On service, the court recognised that there had been uncertainty in earlier authorities as to whether service at a branch office was sufficient. However, the fourth appellant did not promptly challenge the service, participated in the proceedings through the defendants’ counsel, and was treated throughout as a party represented in the litigation. The complaint was therefore one of irregular service, not a complete absence of service. Allowing the objection after judgment would elevate technicality over substantial justice.

On the merits, the court found no basis for disturbing the trial judge’s conclusion that exhibit “O” was not a genuine instrument executed by the deceased. The handwriting expert, PW5, testified that he was a trained document examiner with substantial experience and concluded, after comparing the disputed signature with other signatures attributed to the deceased, that exhibit “O” was not signed by her. The appellants did not effectively challenge his qualifications or methodology, nor did they call a contrary expert. Unchallenged expert evidence may properly be accepted and acted upon by the court.

The trial judge also rejected the evidence of DW2, who claimed to have witnessed the execution of exhibit “O”. His evidence was found unreliable, including because he had made false statements in documents connected with an application for letters of administration and appeared to have acted in concert with the first appellant. The Court of Appeal held that these credibility findings were supported by the record and were not perverse. It also observed that the mere production of a conveyance or title document does not automatically establish title. The document must be genuine, duly executed, stamped and registered; the grantor must have capacity and authority, must possess the interest purportedly granted, and the grant must have the legal effect claimed.

Conclusion

The appeal was dismissed in its entirety. The judgment of the High Court of Ogun State, Abeokuta, delivered on 2006-10-31 in Suit No. AB/87/2000, was affirmed. The first appellant’s counterclaim failed because it depended on the same unregistered and forged document and was not independently established. Costs of N50,000 were awarded to the respondent.

Significance

The decision is significant for Nigerian civil procedure and land law. It confirms that a company should ordinarily be served at its registered office where the applicable rule so requires, but also makes clear that a party who has actual notice and participates without timely objection cannot later exploit an irregularity to invalidate the proceedings. The judgment equally demonstrates the strict statutory consequences of failing to register an instrument affecting land. Such a document cannot be used to prove title where the legislation expressly makes it inadmissible. Finally, the case illustrates the restrained approach of an appellate court to findings based on witness credibility, expert evidence, and the overall evaluation of facts by a trial court.