AGUELE v. AIGBOGUN (2021)

AGUELE v. AIGBOGUN

(2021)LCN/15166(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 26, 2021

CA/B/373/2010

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

DORIS AGUELE APPELANT(S)

And

BROWN AIGBOGUN RESPONDENT(S)

RATIO

DUTY OF THE TRIAL COURTS REGARDING EVALUATION AND APPRAISAL OF THE EVIDENCE ADDUCED BEFORE THEM

… the judgment of a Court must not only demonstrate a dispassionate and full consideration of all the issues properly raised and tried in the case but must also reflect the outcome of such an exercise. See the case of ADEYEMO vs. AROKOPO (1988) 6 SCNJ 1 AT 6. The Court has always expressed the need for trial Courts in the exercise of their duties in evaluating and appraising the evidence adduced before them, to base their inferences and conclusions on the natural drift of the evidence and the probabilities which on the totality of the evidence are natural to expect. PER FREDERICK OZIAKPONO OHO, J.C.A.

DUTY OF THE COURT WITH RESPECT TO MATTERS BEFORE THEM

In the case of ONUOHA vs. THE STATE (1988) 7 SCNJ (PT. 1) 20 at 24 the apex Court per E. B. CRAIG, JSC had this to say on the subject: “What is essential is that a Judge should show a clear understanding of the facts of the issues involved, of the law applicable and from all these he should be able to draw the right conclusions and a correct finding on the evidence before him.” PER FREDERICK OZIAKPONO OHO, J.C.A.

DUTY OF THE COURT IN THE INTERPRETATION OF DOCUMENTARY EVIDENCE

See the case of SAIDU vs. ABUBAKAR (2008) 12 NWLR (PT. 1100) 201 AT 301, where the Court had this to say on the subject: “When a document is admitted in evidence, it should be allowed to speak for itself. Every inscription on the document should attract the reasonable inference it deserves”. See also the case of CAP PLC vs. VITAL INVESTMENT LTD (2006) 6 NWLR (PT. 976) 220 AT 267 Para E, where this Court per SALAMI, JCA had this to say on the issue: “A trial Court is required to give effect to documentary evidence once it has accepted it. In the instant case, it was wrong for the trial Court to refuse to give evidential value to exhibit 10 after having accepted it is not the opinion of the learned trial Judge that exhibit 10 was not written. Having accepted it he was required to give effect to it the learned trial Judge rather than giving effect to the document quibbled when he scrounge for excuse on behalf of the respondent to avoid the evidential value of the document.” PER FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Edo State, Ubiaja Judicial Division (hereinafter referred to as: “the Court below”) Coram: R. I. AMAIZE, J delivered on the 30th day of March, 2010 dismissing the claims of the Appellant and granting the counter claim of the Respondent who was defendant at the Court below.

The fact of this case in a nut-shell is that the Plaintiff now Appellant before this Court brought an action against the Respondent. The Appellant at the Court below in her Amended statement of claim averred that her father Hon, J. O. Odigie who died in January, 1986 had 43 children in his life time and six wives together with a mistress by the name Agnes Eki who begat the Respondent herein and Paulina begat by Agnes for Hon. J. O. Odigie, father of the Appellant; while the Respondent was begat Agnes for another man before she met with her late father. The late Hon. J. O. Odigie, while alive was said to have kept a family record in which the names of all his children and other family history were recorded. At the trial, the said record was tendered in evidence as Exhibit P1 without any objection from the Respondent and accepted by the Court as an Exhibit.

Upon the death of Hon. J.O. Odigie Appellant’s brother, Benedict Blackie Odigie stepped into the shoes of his father as his eldest son and inherited the estate of their father including the land in dispute which was given to the Appellant by Benedict Blackie Odigie as a gift. The Appellant’s contention is that the Respondent was imposed on the family by their father’s relatives as the eldest son with a view to disinherit her brother, Benedict Blackie Odigie.

The Appellant testified and called other witnesses who testified and documents were also tendered which includes the family record kept by Hon. J. O. Odigie while he was alive and this was admitted as Exhibit P1, which the Court below held to be the authentic record of the family kept by their late Father, Hon. J. O. Odigie against Exhibit D1 that was tendered by the Respondent as the family register not signed by the said Hon. J .O. Odigie.

The case of the Respondent who also counter claimed is that he is the eldest son of Hon, J. O. Odigie and having performed the burial rites of the father,

that it entitled him to inherit his estate including the land in dispute. After the respective parties have closed their case, their Counsel filed written addresses and the Court below, in a well considered judgment dismissed the claim of the Appellant and granted the counter claim of the Respondent. The judgment can be found at pages 90 – 126 of the records of appeal. It is against the said judgment that the Appellant as appealed to this Court.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of two issues for the determination of this Appeal, thus:
1. Having regard to the crucial findings by the trial Judge in respect of Exhibit P1 which contained the detailed record kept by the late Hon. J. O. Odigie of his entire children, whether the trial Judge was right when he later veered off by resolving that the Respondent is the son of late Hon. J. O. Odigie?
2. Whether the Respondent has been able to prove his counter claim entitling him to the reliefs claimed in view of the documentary evidence tendered by him and the finding of fact by the trial Judge on exhibit P1 CD1, CD2 and D1?

On the part of the Respondent, there were no appearances recorded for the Respondent even though adequate hearing notices had been served. Consequently, no brief of argument was filed on behalf of the Respondent. The Appellant’s brief of argument dated 25-11-2016 and settled by OLAYIWOLA AFOLABI ESQ., was filed on the 28-11-2016. This Appeal shall however, be determined based on the issues nominated by the Appellant due to failure of the Respondent to file a brief of argument. Although, this appears to put the Appellant at a position of advantage, but in reality it does not. The judgment of the Court below is still in favour of the Respondent and for this reason the Appellant still has to show that the judgment of the Court below was wrong. See the case of CAMEROON AIRLINES vs. MR. MIKE E. OTUTUIZU (2011) LPELR-827 (SC).

ISSUE ONE:
Having regard to the crucial findings by the trial Judge in respect of Exhibit P1 which contained the detailed record kept by the late Hon. J. O. Odigie of his entire children, whether the trial Judge was right when he later veered off by resolving that the Respondent is the son of Late Hon. J. O. Odigie?

The submission of learned Appellant’s Counsel in arguing this issue is that the Court below erred in law when he ignored Exhibit P1, which he held as the authentic family record of Hon. J.O. Odigie which supports the Appellant’s case but which he later ignored and reached a perverse decision, holding that the Respondent is the son of late Hon. J. O. Odigie whose name is not amongst the list of the children of late Hon. J. O. Odigie as contained in the said Exhibit P1. Counsel drew Court’s attention to page 105 of the record, where the learned trial Judge held and affirmed as follows:
“In the circumstances, I am inclined to and do believe, so find and hold that Exhibit P1 and not Exhibit D1 in all common sense and logic, represents the family record made by Hon. J.O. Odigie. At best Exhibit D1 represents caricature or better still a poor and therefore failed imitation of the family record of Late Hon. J. O. Odigie’s family.”

Against the backdrop of the foregoing, Counsel submitted that Exhibit P1 is the foundation and pillar of the Appellant’s case and also a relevant document to the issue in Court and was accepted by learned trial Judge as the most credible evidence against Exhibit D1 tendered by

the Respondent and as such ought to have been relied upon having accepted as the most reliable and credible document. Counsel submitted further that documentary evidence is best and the most reliable form of evidence which no oral evidence will be allowed to vary of discredit the contents. Counsel cited the cases of EGHAREVBA vs. OSAGIE (2009) 12 NWLR (PT. 1173) 299 at 302 and a host of other cases in that light. Counsel contended that the finding of the Court below on the issue of Exhibit P1 is in tandem with the case of the Appellant that the Register of the deceased’s children was not with the Respondent and that this was further carefully brought out when the Respondent stated under the fire and heat of cross examination at page 60 of the record as follows:
“It is true I deposed to an affidavit in that suit. The affidavit shown to me now in Court (Exhibit “P5) contains my signature. It is true I deposed to the fact that the Register of my father’s children was with the Plaintiff.”

Counsel further contended that the said Exhibit P5 was tendered at the Court below and that at paragraph 35 of the affidavit sworn to by the Respondent states as

follows:
“That the true Register of the birth of my late father, Hon. J. O. Odigie’s children are in possession of the Plaintiff/Respondent notice is hereby given to him to produce the Register at the Court for the Court to inspect.”

Counsel argued that having agreed that the Register of the birth of all the children of late Hon. J. O. Odigie was not in his custody, Exhibit D1 which the Respondent belatedly claimed to be the names of the children of Hon. J. O. Odigie suffers a deadly legal blow.

In view of the foregoing, Counsel submitted that the trial Judge was in grave error to have reached an unjust decision that the Respondent is the son of Late Hon. J. O. Odigie when an extract from the introductory page of the family record i.e. Exhibit P1 expressly stated that “I, the writer and father of all the children, whose names are written in this Book and the son of Late Chief Odigie who departed this life on the 10th of February, 1944…” and yet the name of the Respondent was not in the list of children of Late Chief Odigie which is at pages 2 and 3 of Exhibit P1 neither was the Respondent children’s name contained at pages 37 which the author (Hon. J .O. Odigie) marked for his grandchildren.

The contention of Counsel is that having agreed that Exhibit P1 is the authentic document, and later somersaulted and found against the said Exhibit P1, it shows that the Court below blew hot and cold, which is never allowed in our jurisprudence. See the case of KAYODE vs. ODUTOLA (2001) 11 NWLR (PT. 725) 659 @ 676 and a host of other cases.

Counsel at this stage posed a question on the issues raised and that is, whether it is possible for the late Hon. J. O. Odigie to have copiously omitted the name of the Respondent from the list of his children when according to the Respondent he is the eldest son and yet the name of his junior sister DW3, of the same mother has her name in Exhibit P1? The submission of Counsel is that a trial Court is required to give effect to documentary evidence once it has accepted it. Counsel cited the case of C.A.P Plc vs. VITAL INVESTMENT LTD (2006) 6 NWLR (PT. 976) 220 @ 267 on the issue.

It was further submitted by Counsel that the Court below, rather than give effect to Exhibit P1 after accepting it, decided to rely on the oral testimony of the Respondents’

witness and other documentary evidence which the Court found same to be unreliable and discountenanced in doing an undeserved summersault. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether the Respondent has been able to prove his counter claim entitling him to the reliefs claimed in view of the documentary evidence tendered by him and the finding of fact by the trial judge on exhibit P1 CD1, CD2 and D1?
In arguing this issue, learned Counsel submitted that the Respondent failed to prove his counter claim, as a counter claim is like a main claim which is an independent action and must be proved on the preponderance of evidence like any other civil matter before the Appellant would be entitled to judgment. Counsel cited the case of USMAN vs. GARKE (2003) 14 NWLR (PT. 840) 261 @ 288 where the apex Court per NIKI TOBI, JSC had this to say on the issue :
“There is still another aspect to the issue it is that a counter claim does not automatically succeed merely because a reply was not filed. A counter claim like the main claim or the plaintiffs claim must be proved on the balance of probability

as any other civil matter where the defendant fails to prove his counter claim, his action stands dismissed and will be dismissed”.

The submission of Counsel is that the Respondent’s counterclaim which was not successfully proved ought to fail and be dismissed for a number of reasons. Counsel contended that the Respondents claim that he is the eldest surviving son of Late Hon. J. O. Odigie of No. 1, Ofuri Market Road, Idinro Okaigben, Ewohimi is based on falsehood which the Court below erroneously accepted even when the learned trial Judge had earlier on held that Exhibit P1 which is dated and signed by the deceased and not Exhibit D1, which had no date and signature of the deceased and tendered by the Respondent is the authentic and true family record of Late Hon. J. O. Odigie’s family.

Again, Counsel argued that Exhibit CD2 which is a baptismal and confirmation certificate tendered and relied on by the Respondent in proof of his claim as the eldest surviving son of late Hon. J. O. Odigie was found unreliable and same was discountenanced by the learned trial Judge in his judgment at pages 106-17 of the record. Learned Counsel cited a number of cases and urged this Court to resolve this issue in favour of the Appellant.

RESOLUTION OF APPEAL
It may be apposite to preface the analysis to be made in the resolution of this Appeal by beginning with the admonition of the apex Court on countless occasions in a plethora of decided cases that the judgment of a Court must not only demonstrate a dispassionate and full consideration of all the issues properly raised and tried in the case but must also reflect the outcome of such an exercise. See the case of ADEYEMO vs. AROKOPO (1988) 6 SCNJ 1 AT 6. The Court has always expressed the need for trial Courts in the exercise of their duties in evaluating and appraising the evidence adduced before them, to base their inferences and conclusions on the natural drift of the evidence and the probabilities which on the totality of the evidence are natural to expect. In the instant Appeal before this Court, the Appellant’s complaint is that the judgment of the learned trial Court was perverse in that the Court below came to the wrong conclusion after impeccably evaluating and appraising the totality of the evidence before him in finding and concluding that the

Plaintiff established her claims that the Respondent as Defendant was not sired form the loins of her late father, Hon. J. O. Odigie at page 105 of the records of Appeal, but turned summersault to hold at pages 120 to 121 of the records in resolving that the Respondent is the son of the Late Hon. J. O. Odigie and dismissing the claims of the Appellant in the process whilst granting the counter claims of the said Respondent. In the case of ONUOHA vs. THE STATE (1988) 7 SCNJ (PT. 1) 20 at 24 the apex Court per E. B. CRAIG, JSC had this to say on the subject:
“What is essential is that a Judge should show a clear understanding of the facts of the issues involved, of the law applicable and from all these he should be able to draw the right conclusions and a correct finding on the evidence before him.”

Trouble for the parties actually began in this matter when the Court below had the opportunity of comparing two identical documents and was required to make a pronouncement on the status of two documents, both of which claimed to be the authentic Family Records of the deceased, Hon. J. O. Odigie and which documents were tendered in evidence. The Court

below at page 105 of the printed records had this to say:
“In the circumstances, I am inclined to and do believe, so find and hold that Exhibit P1 and not Exhibit D1 in all common sense and logic, represents the family record made by Hon. J. O. Odigie. At best Exhibit D1 represents caricature or better still a poor and therefore failed imitation of the family record of Late Hon. J. O. Odigie’s family.”

Perhaps, more instructive under the scheme of things is the attempt of the Respondent as Defendant who frantically sought to tender other documents in order to establish his claims of being eldest Son of the Late Hon. J. O. Odigie, when after tendering what he referred to as: “Baptismal and confirmation certificates”. The Court below at pages 106 to 117 made the following observations:
“I must post haste deal or otherwise consider Exhibit CD2, a baptismal and confirmation certificate. It indicates that the defendant was baptized on 12-11-59 and confirmed on 9-7-62 in the name of Paul. This document which was introduced by way of re-examination of defendant is, in more than we respect, most unsatisfactory. Firstly as contended by learned Counsel

for Plaintiff and I accept that contention the document makes provisions for names of sponsors and minister on the baptismal portion, and name of minster each on the confirmation and marriage portions. Whereas, the name of John Enebeli appears as sponsor, the name of Rev. Fr. M. O. Connell as minister, (both on the baptismal portion) and names of J. P. Kelly and Fr. J. Egbima as minister in confirmation and marriage portions respectively, only one and the same signature appears on each of the fore aforementioned portions of Exhibit CD2. Secondly, as also observed by Mr. Agbonniebuele for Plaintiff if Exhibit CD2 refers to baptism and confirmation that were done in 1959 and 1962 respectively, reference to Edo State which was created in 1976 in the document only raises more questions than one can possibly find answers. In the circumstance, I am unable to place any weight on Exhibit CD2″.

On the flip side of this case and in an area this Court finds profoundly difficult to ignore is the clinical and impeccable appraisal and evaluation of the Appellant’s Exhibit P1, which the Court below had so ably carried out at page 103 of the printed record, thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“I have taken a rather look at Exhibit P1 tendered by plaintiff and from my detailed study of it, it wears the outlook at a record kept by Hon. J. O. Odigie and the following factors easily lead me to that conclusion:
The first entry reads-Joseph Odigie: Record of my History of life and the names of my children.
It also contains what the author titles “family history record” followed by historical events that concern the writer and which could have flowed exclusively from his personal knowledge, it is opened thus: “I, the writer and father of all the children, whose names are written in this Book and the son of Late Chief Odigie who departed this life on the 10th of February 1944,”
It contains other detailed accounts about the life of the writer.
There is also a portion titled “Josephli Ahamejeseli Odigie History so the present site of my Buildings.”
Subsequent to the portions of Exh P1 on which the foregoing and other facts are stated begins serialization of the book in printed form into pages 1 to 302 pages 2 and 3 therein contain the listing of names that are presumably those of the children of the late Hon. J. O.

Odigie. I say presumably because there is no title or heading given before the commencement of listing but if regard is had to the first part lifted from the document (Exh. P1) into this judgment which states inter alia: “Record of my History of life and the names of my children” coupled with the fact that listing began with the name of Pw3 and that it equally contains the names of plaintiff and her brother of full blood (Blackie) the presumption that the names on pages 2 and 3 of Exh P1 are those Hon. J. O. Odigie’s children is clear. The names of defendant and his siblings, Paulina, Rosa and Vera are not contained on pages 2 & 3 of Exhibit P1. However, beginning from page 11 right to page 22, there are categorizations of children of Late Odigie on the basis of mother and on page 15, it is written:
By Miss Agnes Eki – Paulina Iriowen
30th December, 1946.
It has also been noted that from pages 37 to 76, the author pages for his grandchildren heading the relevant pages with the names of his own children who are either the fathers or mothers of such grandchildren. Whereas, page 44 contains the name of DW3, the name of defendant is not

contained on any of the pages.
Against the above picture painted of Exhibit P1 is Exhibit D1 which contains the name of defendant amongst other as the children of Late. Hon. J. O. Odigie. Therein, defendant occupies a pivotal position of an eldest son, coming only after two females – PW3 and one other. Although, the handwriting with which Exh. D1 is written enjoys striking similarity with that of Exh. P1, two factors would appear, in my estimation, to separate the two into different camps with Exh. P1 appearing the more authentic one. These factors are:
a. Whereas Exh. P1 contains some historical or introductory antecedents expected in a document of that nature, Exh. D1 is completely devoid of such element and
b. It is common ground that Late. Hon. J.O. Odigie had a total of 43 children but that at the time of his death, he was survived by 36 children. The fact that Exhibit D1 contains the names of 36 children and quite unlike Exhibit P1 which contains 43 names with some of them marked as “dead”, testifies eloquently to the fact and therefore a confirmation that Exhibit D1 could have been made subsequently to the demise of Hon. J.O. Odigie

a factor which completely negates the fact that he it was who made it, as defendant wanted this Court to believe
In the circumstances, I am inclined to and do believe, so find and hold that Exhibit P1 and not Exhibit D1, in all common sense and logic, represents the family record made by Hon. J. O. Odigie. At best Exh. D1 represents caricature or better still a poor and therefore failed imitation of the family record of Late. Hon. J, O. Odigie’s family record of Late Hon. J. O. Odigie’s family.”

On the question of where the Family Register had been shortly before it was brought and tendered in Court the evidence of the Respondent himself put paid to any speculation possibly arising from any doubts about its proper custody. At paragraph 35 of Exhibit P5, the Respondent deposed to the followings:
“That the true Register of the birth of my late father, Hon. J. O. Odigie’s children are in possession of the Plaintiff/ Respondent. Notice is hereby given to him to produce the Register at the Court for the Court to inspect.”

What seems to beat the imagination of this Court is how the Respondent who had earlier on acknowledged that the authentic Register of the family of Hon. J. O. Odigie was in the custody of the Plaintiff, still managed to have to come out with an Exhibit D1, which the Court rightly found and described as a caricature or better still a poor and therefore failed imitation of the family record of Late Hon. J. O. Odigie’s family record of Late Hon. J. O. Odigie’s family.

However, in what may appear to give extensive meaning to the well known expression of “blowing hot and cold” at the same time, the Court below, to the consternation and bewilderment of the Appellant, the Court below at pages 120 to 121 of the Record, thus:
“As a matter of fact, besides non-inclusion of defendant name in Exhibit P1 the other reason plaintiff gave to support her allegation that defendant is not her father’s son is that her father told her so. PW1 (Benedict Blackie Odigie) if that allegation coming as it were from Plaintiff and PW1 is weighed against the evidence of DW1, Albert Osazuwa Odigie, the Court Prefers the letter for the reason that Albert is a disinterested party, who is more likely to be dispassionate, while plaintiff and Benedict who have personal interest to protect

could have each given evidence that is self- serving. The foregoing analysis couple with the position already taken that in the face of Exhibit P6, P7/7A, PB/BA, D2-D4 and CD1, The non- inclusion of defendant name in exhibit P1 is no derogation to his position as the son of Late Hon. J. O. Odigie, provide for me the needed impetus to reaffirm as I do, my earlier observation that in drawing strength from available evidence the conclusion becomes irresistible that defendant is the son of the Late Hon. J. O. Odigie. I accordingly so find.”

The only interpretation of what transpired at the Court below is that the Court, despite drumming its support and preference for Exhibit P1 as against Exhibit D1 tendered by the Respondent, the Court below, rather than place reliance upon it, preferred other extraneous pieces of evidence to arrive at the conclusions it made in its final judgment between the parties. If the Court had as much as possible allowed the documentary Exhibits to speak for themselves, having found that Exhibit P1 represents the authentic record of Hon. J. O. Odigie family, this Appeal Could have been averted. See the case of SAIDU vs. ABUBAKAR

(2008) 12 NWLR (PT. 1100) 201 AT 301, where the Court had this to say on the subject:
“When a document is admitted in evidence, it should be allowed to speak for itself. Every inscription on the document should attract the reasonable inference it deserves”.
See also the case of CAP PLC vs. VITAL INVESTMENT LTD (2006) 6 NWLR (PT. 976) 220 AT 267 Para E, where this Court per SALAMI, JCA had this to say on the issue:
“A trial Court is required to give effect to documentary evidence once it has accepted it. In the instant case, it was wrong for the trial Court to refuse to give evidential value to exhibit 10 after having accepted it is not the opinion of the learned trial Judge that exhibit 10 was not written. Having accepted it he was required to give effect to it the learned trial Judge rather than giving effect to the document quibbled when he scrounge for excuse on behalf of the respondent to avoid the evidential value of the document.”
The Court below, in deciding the matter in favour of the Respondent did not advert its mind to the fact that documentary evidence being permanent in form has no rivals in the hierarchy of other

kinds of evidence as it is more reliable than oral evidence to the extent that it is used as hanger to test the credibility of oral evidence. By therefore preferring the oral evidence of the Respondent herein and his witnesses to the Exhibit P1 the Court below literally destroyed the natural drift of the evidence and the probabilities which on the totality of the evidence are natural to expect. Who says the faintest of inks is not preferred to sharpest of memories in the affairs of modern age? See the cases of EGHAREVBA vs. OSAGIE (2009) 12 NWLR (PT. 1173) 299; I.N.E.C vs. OSHIOMHOLE (2009) 4 NWLR (PT. 1132) 607; C.D.C. (NIG) LTD vs. SCOA (NIG) LTD (2007) 6 NWLR (PT. 1030) 300 on the importance of documentary evidence and the place of prominence it occupies over oral evidence.

In the final analysis this Appeal succeeds; the two issues nominated for the determination of this Appeal having been resolved in favour of the Appellant. The judgment of the High Court of Edo State sitting at Ubiaja and delivered on the 29th day of March, 2010 is hereby set aside. Consequently, the claims of the Appellant as Plaintiff and with regards to its special damages of

N500,000.00 (Five-Hundred thousand) Naira is hereby granted, while the Appellant’s claim of general damages is pegged at the sum of N3,000,000.00 (Three-Million) Naira only. The Respondent’s counter claim, having been found not to have been proved is set aside in its entirety. There shall be cost of N100,000.00 in favour of the Appellant against the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment in this appeal, just delivered by my learned Brother, Dr. F.O. Oho, JCA.

I agree with His Lordship’s line of reasoning and the conclusion reached by him in the leading judgment that the appeal is meritorious. I also allow the appeal and abide by the consequential orders therein, including that of costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My lords, the Respondent did not bother to defend the judgment given in his favour by the Court below on his counter – claim against the Appellant despite the service on him of hearing notices by Registry of this Court and therefore, made no submissions on the two issues as distilled in the Appellant’s brief of argument in this Appeal. In law,

the failure of the Respondent to make any counter – submissions on these two issues would simply amount to a concession by the Respondent that indeed when the contention by the Appellant that the judgment of the Court below dismissing the Appellant’s claim whilst granting the counter – claim of the Respondent was perverse was correct See Dr. Arthur Nwankwo & Ors v. Alhaji Umaru Yar’ Adua & Ors (2010) 12 N WLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC.,(as he then was now CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party”
See also Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR 45528 per George will JCA; Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, in law failure by one party to counter the arguments of the adverse party does not automatically amount to merit in the uncontested arguments though deemed conceded. Thus, the Court

is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

In the lead judgment just delivered by my lord. Dr. Frederick Oziakpono Oho JCA, a draft copy of which I have been opportune to read in advance, the merit of this appeal notwithstanding the absence of any Respondent’s brief has been thoroughly considered and resolved in favor of the Appellant against the Respondent. I agree!

The Court below cannot approbate and reprobate at the same time on the issues presented before it by the parties and be so inconsistent in its findings and conclusions reached thereon. The principle of law, or should I say rather the admonition in law, that parties must be consistent in the case they plead and the case they present at the trial is equally true of and applicable in my view to the Courts. A Court must also be consistent in the findings it makes and

the resultant conclusions therefrom. In Governor of Lagos State & Ors V. Ohaigo (Nig.) Ltd & Anor (2018) LPELR – 45552 (CA), this Court per George will JCA, had cause to expatiate on this position of the law on consistency of the Courts inter alia thus:
“My lords, here lies the crux of issue two, whether the Court below having so found as fact that the acquisition of the land in dispute was valid can turn around to hold that the same validly acquired land has been validly sold or assigned to the 1st Respondent by the Olakorun family? Is such a latter finding consistent or inconsistent and flowing or not flowing from the earlier finding of the Court below? The rule against inconsistency operates ordinarily to guard against parties presenting at trial cases different from the cases as pleaded in their pleadings. I think that, and I so hold, this rule also applies with equal force to the Courts in considering and arriving at findings in their judgments. The Courts, though not infallible and thus susceptible at times to err, do not enjoy a lower level of compliance with the rule against inconsistency. Thus, a Court cannot in one breadth make one

finding and in another breadth on the same evidence and in the same judgment summersault to make an inconsistent finding to its earlier finding. It must lead by example by being consistent before being in a prime position to require of litigants compliance with the rule of consistency in the conduct and presentation of their cases.”
See also Akaninwo V. Nsirim (2008) All FWLR (Pt. 410) 610 @ p. 663.
Now, the Court below had found as fact that it was Exhibit P1 rather than Exhibit D1 that was and remained the authentic family history written under the hand of the late Hon J. O. Odigie showing the number and names of the children he had in his time. Then, without any discernible reason, as none can be seen in the gamut of the entire judgment appealed against, the Court below had summersaulted to find against the party, that is the Appellant, whose documents as in Exhibit P1 was considered and accepted as genuine by the Court below and rather found in favor of the very party. that is the Respondent, whose document as in Exhibit D1 was considered rejected as doubtful by the Court below.

My lords, the Court below going by these two conclusions reached in the judgment appealed against was, regrettably and with due deference most inconsistent. Here is a Court which had carried out a thorough evaluation of the evidence led by the parties in line with their pleadings and had held, and quite impeccably too, that the Appellant’s Exhibit P1 is the genuine account of the history of the family of the late Hon J. O. Odigie as written down under and by his own very hand, and then later in the same judgment made a complete 360 degree turn around summersault to hold that it is rather the Respondent who had relied on Exhibit D1. the document considered by the Court below as doubtful that proved his counter claim against the Appellant. This is so clearly inconsistent and indeed violently contradictory.
I think, and I so hold, that this summersault and inconsistency on the part of the Court below, perhaps inadvertently, shows either a lack of focus or simple forgetfulness, to find in favor of the Respondent whose documentary Exhibit D1 it had earlier considered and held to be doubtful. Thus, had the Court below kept its earlier finding in favor of the Appellant in relation to her Exhibit P1 in focus, it would have seen the futility of the turning around to find in favor of the Respondent on his doubtful Exhibit D1.

In the circumstances therefore, and as ably and amply demonstrated in the lead judgment, the finding by the Court below in favour of the Respondent on his counter claim against the Appellant whilst finding against the Appellant on her claim against the Respondent grossly erroneous and therefore, perverse and thus liable to be set aside. In law, a finding or conclusion of a Court is perverse when such finding does not flow from the proved evidence or was arrived at wrongly or was anchored on extraneous matters. In all such circumstances an appellate Court will interfere to set it aside and make appropriate finding as justified and borne out by the evidence in the printed record of appeal. See Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, where it was emphatically pronounced thus:
“A decision is said to be perverse when it is speculative not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate Court can interfere with a decision of the trial Court that is perverse.”

See also Obajimi V. Adediji(2008) 3 NWLR (Pt. 1075) 1 @ p. 19; Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 a pp. 1820 – 1821.

It is for the above few words of mine and for the fuller reasons adroitly marshalled out in the lead judgment that I too hold that the appeal is highly meritorious and perforce should succeed. I too hereby allow the appeal. I shall abide by the consequential orders made therein, including the orders as to cost.

Appearances:

OLAYIWOLA AFOLABI, ESQ. For Appellant(s)

No Representation For Respondent(s)