UTTOV v. UTTOV (2022)

UTTOV v. UTTOV

(2022)LCN/16598(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/MK/116/2013

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

ALEXANDER UTTOV APPELANT(S)

And

MARTHA UTTOV RESPONDENT(S)

RATIO

THE POSITION OF LAW ON DOCUMENTARY EVIDENCE

Therefore it is pertinent to state the position of the law when it comes to documentary evidence and oral evidence as to the content of documents. Section 128 (1) of the Evidence Act, 2011 which deals with the exclusion of oral evidence by documentary evidence provides as follows:
“When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document he contradicted, altered, added to or varied by oral evidence”.
This provision of the law has found several judicial pronouncement including the authority of Egharevba v. Osagie (2010) ALL FWLR (Pt. 513) 1277 paras. A—E cited by Respondent’s counsel where the Court held as follows:
“Documentary evidence is the best evidence ….where there is oral as well as documentary evidence, the latter should be used as the hanger from which to assess the oral evidence. This is because documentary evidence is said to be more reliable than oral evidence. See EZEMBA V IBENEME (2004) All FWLR (Pt. 223) 1786 (2004) 7SCNJ 136”. PER HASSAN, J.C.A.

WHETHER OR NOT ORAL EVIDENCE CAN BE ADMITTED TO CONTRADICT THE CONTENT OF DOCUMENTARY EVIDENCE

On whether oral evidence can be admitted to contradict the content of documentary evidence, the case of BFI Group v. Bureau of Public Ent. (2013) ALL FWLR (Pt. 676) P. 444 at 467, para E; and P. 474 paras. B—C where the Court has this to say about the propriety of documentary evidence is apt:
“And where there is a conflict in the evidence of witness, documentary evidence will serve as a hanger on which the truth shall resolve. Documents tendered as exhibits are very vital as they do not embark on falsehood like some mortal beings; OLUJINLE V. ADEAGBO (1988) 2 NWLR (Pt. 75) 233.” PER HASSAN, J.C.A.

THE POSITION OF LAW ON PLEADING A DOCUMENT IN COURT

It is settled law that to plead a document, a party must not specifically state in his pleadings that the said document is pleaded and shall be relied upon at trial, but it suffice that fact relevant to the said document are alluded to in the party’s pleadings. See the case of Falolu v. Okeowo (2021) LPELR 55783 (CA) Pp 24–25, Paras D–A where the Court held as follows:
“The law is settled that reference to a document in a pleading makes the document part of the pleading and it is open to the Court to give the document its true legal effect. See Marine Management Association Inc. v. National Maritime Authority (2012) 18 NWLR (Pt. 1333) 506…”. PER HASSAN, J.C.A.

WHETHER OR NOT EVALUATION OF EVIDENCE IS THE SOLE PREROGATIVE OF THE TRIAL COURT

It is settled law that evaluation of evidence led are prerogative of the trial Court and the only situation where the Court of Appeal will be called to challenge the evaluation of evidence led at the trial Court is where the findings of the trial Court as a result of the evidence evaluated by the Court is perverse. This duty is on the Appellant who is challenging the decision of the trial Court on the grounds and basis that the evidence adduced was not properly evaluated.

Evaluation of evidence should involve a reasonable belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356 at 379. PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice A. O. Onum in Suit No. MHC/287/2009, on the 23rd day of May, 2012, wherein the trial Court dismissed the Counter-claims of the Appellant.

The Appellant was the Defendant/Counter Claimant, while the Respondent was the Plaintiff at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide his Notice of Appeal dated 17th day of August, 2012. The Notice of Appeal is found after page 194 of the Record.

The Record of Appeal was compiled and transmitted to this Court on the 29th of April, 2013, but deemed proper before this Court on the 11th of April, 2017. The Appellant’s brief was filed on the 14th of June, 2017, while the Respondent’s brief of argument was filed on the 17th of July, 2017. The Appellant upon being served with the Respondent’s brief of argument, filed a reply brief of argument on the 12th of March, 2021.

At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs. Upon which this Court reserved the Appeal for judgment.

The Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated 25th of September, 2009, and filed on the same date, which was issued to the Appellant who was tagged as defendant at the trial Court. The reliefs sought by the Respondent against the Appellant by paragraph 21 of the Respondent’s statement of claim accompanying the writ are as follows:
a. A declaration that Plot No. 520 Gboko situate at Aungwa Ward with Gboko Local Government Certificate of Occupancy purchased from Sunday O, Moses on 2/4/98 by the Plaintiff is the exclusive property of the Plaintiff and therefore she is entitled to take full benefit thereof.
b. A Declaration that house No. 25 Off Katsina – Ala Street High Level Makurdi wherein the Plaintiff and Defendant were residing hitherto and jointly purchased from Rev. P.T Waghba and developed is a joint property of the plaintiff and the defendant.
c. An order for the sale of the developed House No. 25 Off Katsina – Ala Street wherein the Defendant is residing presently and the proceed of sale be shared equally between the plaintiff and the Defendant.
d. A Declaration that Toyota Corolla with Registration No. KANO AQ 428 DAL in the custody of the Defendant is the sole property of the Plaintiff and therefore she is entitled to carry same and the defendant should surrender the key of the said car to the plaintiff.
e. An order for the defendant to account and surrender to the plaintiff for all the rent of the plaintiff from 2 bedrooms flat at Gboko situate at Aungwa Ward at the rate of N200,000.00 per annum effective from April 2007 till possession is given by the defendant. See page 9 of the Record of Appeal.

The Appellant as Defendant upon being served with the writ and accompanying documents, filed a counter-claim against the Respondent as Defendant to counter-claim claimed in paragraph 24 of his counter-claim as follows:
i. A Declaration that he is the owner of Plot No. BND 11380 (formerly Plot 520) situate at Aungwa ward Gboko.
ii. A declaration that he is the sole owner of Plot No. BN 9827 (No. 25 off Katsina– ala Street High Level) Makurdi and that the plaintiff has no share thereto.

iii. A declaration that the defendant is the owner of the two vehicles with Reg Nos (Kano) AQ 428 DAL and (Benue) AQ 983 MKD having been bought with his money.
iv. An order that the plaintiff returns to the defendant forthwith his vehicle No (Benue) AQ 983 MKD.
v. An order that the plaintiff returns to the defendant the sum of N260,000.00 being the proceeds from the sale of his Peugeot 504 Saloon Car with Reg. No. (Benue) AA 523 ALD and all the original documents (including Certificates of Occupancy, sales agreements, building plans etc) in respect of his three landed properties and two vehicles, the subject matters of the counter-claim.
vi. An order that the plaintiff returns the property (including chairs and electronics together with their receipts) removed by her from the defendant’s house in 2005. See pages 51–52 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Respondent against the Appellant was that the Appellant until their divorce in 2007 was her husband, and prior to the collapse of their marriage, the Respondent moved out of their matrimonial home in 2005 due to irreconcilable differences.

The Respondent’s case was that during the subsistence of their marriage, she single-handedly bought the plot of land at Augwa Ward Gboko covered by Certificate of Occupancy No. 520 from Sunday O. Moses on the 2/4/98. That she single-handedly developed a two-bedroom flat and let it out to tenants and had since 1998 been collecting rent on the property until the Appellant gave Notice to quit to Respondent’s tenant.

The Respondent’s case was that when one of her tenant in Gboko house parked out, the Appellant forcefully collected the keys to the house and had refused to give it to the Respondent for her to give same out thereby denying her of collection of rent since 2007 till the filing of the suit. That in 2001 she purchased a plot of land in her joint name and that of the Appellant and she single handedly developed the property as the family house that she and the Appellant were living in.

The Respondent’s case is that even though the house at No 25 Off katsina ala street High Level Makurdi was bought by her in her name and that of the Appellant, the Appellant is currently converting the said property to his at the Ministry of Lands and Survey, Makurdi. That she bought Toyota Corrolla Saloon Car with Reg. No. Kano AQ 4288 DAL on 7/2/2001 and gave it to the Appellant as she had another car.

It is the Respondent’s case that the Appellant who was a police inspector earning N20,000.00 per month has no financial wherewith to purchase cars, build house all in the value of about N8,000,000.00 in six month if not for the Respondent and her family who assisted him. That She could not remove the cars when she packed out of their matrimonial house as the Appellant withheld the keys and threatened to deal with her. That the Appellant is attempting to collect and change her property to his and enjoy his life at her detriment.

The Appellant’s case is that she set up her trading business with funds contributed by her family members who contributed handsomely to make her comfortable, but that the Appellant has been collecting rent from her house at No. 520 Gboko Situate at Aungwa ward till date without remitting same to her inspite of repeated demands and the Appellant had not seen reasons for the house they jointly own to be sold and proceeds shared neither had he allowed her to collect her Toyota Corolla Saloon car. See pages 5–9 of the Record of Appeal.

The Appellant’s case on the other hand which forms the basis of his counter-claim was one of denial of all the pleadings of the Respondent to the fact that she did not purchase the land at Gboko Situate at Aungwa Ward, she did not build the house they lived in and she did not purchase the cars claimed, he did not force tenants out of their house and the building of their house was done by him. See pages 46–52 of the Record of Appeal.

The trial Court in her considered judgment delivered on the 10/11/2015 found at pages 188–194 of the Records of Appeal entered judgment in favor of the Plaintiff who is now Respondent before this Court and dismissed the Defendant’s counter-claim, hence, this appeal.

ISSUES FOR DETERMINATION
The Appellant’s brief of argument distilled three issues for determination by this Court as follows:
Whether or not the trial Court was right when it declared that plot No. 520 in Augwa Ward in Gboko and covered by a Gboko Local Government Certificate of Occupancy, which had been bought from one Sunday O. Moses and the vehicle, Toyota Corolla registered as Kano AQ 428 DAL, are the exclusive properties of the respondent as against the appellant.
Whether or not the trial Court was right when it declared that the house known as or located at No. 25 Off Katsina Ala Street in High Level Area of Makurdi is owned by the Respondent and Appellant jointly.
Whether or not the trial Court properly evaluated the evidence before it in entering judgment for the respondent and dismissing the appellant’s counter claim.

The Respondent in his brief of argument adopted the three issues formulated by the Appellant and rendered argument on same in her respondent brief of argument

I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the three issues distilled in the Appellant’s brief, and as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.

ISSUE ONE
Whether or not the trial Court was right when it declared that plot No. 520 in Augwa Ward in Gboko and covered by a Gboko Local Government Certificate of Occupancy, which had been bought from one Sunday O. Moses and the vehicle, Toyota Corolla registered as Kano AQ 428 DAL, are the exclusive properties of the respondent as against the appellant.

APPELLANT’S COUNSEL SUBMISSIONS
On this issue, Appellant’s counsel submitted that in the trial Court relied on EXHS A, A1, and A6 which are the sale of land agreement of 2/4/1998, Gboko Local Government Certificate of Occupancy over plot No. 520 Aungwa Ward Gboko dated 1/7/1998, and PHCN account ledger to grant Respondent exclusive title to the property at Augwa ward, Gboko and the Toyota Corolla when in EXH A, the sale of land agreement between Respondent and Sunday O. Moses, the document referred to a certificate of Occupancy which Respondent confirmed that it was the Certificate of Occupancy in EXH A1.

That even though the content of EXH A referring to EXH A1 was made when EXH A1 was not in existence, the reference must be considered alongside other surrounding circumstances like the evidence of DW1 brings into focus the proviso of S. 128 (1) (a) of the Evidence Act.

Counsel then submitted that the trial Court failed on that basis to evaluate EXH A as she shut her eyes to the all important submissions of counsel in the events leading to her judgment, therefore, Counsel urged this Court to evaluate the said EXH A.

Counsel further submitted that EXH 6, the PHCN account ledger is completely extraneous to the facts of the case as the address on the said document which is situate at Off Ayila Yough Road Gboko, is a complete different address from the address of the property purchased by EXH A which is situate at No. 520 Aungwa Ward, Gboko. And on the ownership of the Toyota Corolla, Counsel submitted that the trial Court was wrong to hold that Respondent owned same by virtue of Exhibits A13, A14, and A15 respectively, as the vehicle awarded to the Respondent by the trial Court was one with a complete different Reg. No. from the one pleaded by the Respondent.

SUBMISSIONS OF COUNSEL TO RESPONDENT
Counsel submitted that Respondent in prove of the fact that she is the bona-fide owner of Plot No. 520 with the Gboko Certificate of Occupancy in the name of Sunday Moses situate at Aungwa Ward Gboko apart from the oral evidence tendered Exhibits A—15. Exhibit A is the agreement between the Respondent and her vendor dated 2/4/1998. “Exhibit A1” is the Gboko Local Government Certificate of Occupancy issued in the name of Sunday Moses, the vendor of the Respondent. Exhibits A2 are receipts and A3 details of expenses sheets given to the Respondent by the Appellant, while Exhibit A8 is the Power Holding Company of Nigeria Plc account ledger for electricity of the house in dispute in the name of the Respondent.

That in all this, the Appellant on the other hand did not tender any document of being the owner of the house as DW1-3 whom he brought to testify for him only said that they did not see the agreement or documents of the house, hence they could not say who was the owner of the house. The Appellant had raised a lot of dust that the Gboko Local Government Certificate of Occupancy was issued before the agreement between Sunday Moses and the Respondent and that the Appellant’s name was written on the agreement dated 2/4/98 instead of signature.

However, under the fire of cross-examination, Appellant confirmed that all his documents giving him title to the properties which he claimed disappeared from his house in 2005 when the Respondent left the house were the ones tendered by the Respondent, and none of the documents were in the name of the Appellant, but all are in the Respondent’s name. Counsel relied on the authority of Grace Madu v. Dr. Betram Madu (2008) 2 SCNJ 245 @ 270 I.

Counsel submitted that the argument of the Appellant that the Respondent was to have signed his signature instead of his name does not hold water as a name written is equal to signature as the Appellant did not write a counter signature for the trial Court to compare. Therefore, EXHS A8, A9 and A6 remain the best form of evidence on the issue of the ownership of the properties.

Counsel submitted that S. 128 (1) of the Evidence Act forbids the variation, addition, alteration and subtraction of the content of a document by oral evidence just as the Appellant is trying to do in the instant case. Counsel relied on the authorities of Egharevba v. Osagie (2010) All FWLR (Pt. 513) 1277 paras A–E, Royal Ceramics Ltd v. Stephemor Supply Company Ltd (2004) All FWLR (Pt. 205) 208 at 226 and BFI Group v. Bureau of Public Ent. (2013) All FWLR (Pt. 676) P. 444 at 467 para E on the position of the law on the place of oral evidence vis a vis documentary evidence.

Counsel urged this Court to uphold the findings of the trial Court that it is the Respondent that owns the property at No. 520 Aungwa ward Gboko. That the trial Court was also right to hold that between the parties who own the vehicle in dispute Exhibits A13 and A14 considered together with Exhibit 15 are also clear that it was the Respondent who bought the car and not the Appellant as the cash receipt of Toyota Corolla is in the name of the Respondent.

Counsel submitted as regards particulars of the cars that in the list of documents tendered by the Respondent, the vehicle number was correct, and the Appellant also pleaded the same registration No. KANO AD 428 DAL in his pleading and affidavit as to loss of documents. Therefore, Appellant and his counsel were not misled in any way as both the Appellant and Respondent pleaded the same vehicle number while the particulars and receipts to wit EXHIBITS A13 and A14 considered together with EXHIBIT A15, what Appellant claimed were missing at one time and same were in another time removed by the Respondent and has the name of the Respondent on them as the Appellant could not produce any evidence to buttress his bogus claim of ownership as held by the trial Court belongs to the Respondent.

RESOLUTION OF ISSUE ONE
It is to be noted that the contention of Appellant under this issue bears basically on the ownership of the plot No. 520 in Aungwa Ward in Gboko and Toyota Corolla car with Reg. No. Kano AQ 428 DAL, and both of the two are covered by documentary evidence which are Gboko Local Government Certificate of Occupancy in EXH A1, Sale agreement between Sunday O. Moses in EXH A, and EXH A13, 14 and 15 respectively for the ownership of the vehicle.

The Appellant’s contention under this issue which covers grounds 2, 4 and 6 of the grounds of appeal is basically that the trial Court erred in law by relying on the documentary evidence itemized above to declare the Respondent as the owner of Plot No. 520 Aungwa Ward Gboko and the Toyota Corolla with Reg. No. Kano AQ 428 DAL.

Therefore it is pertinent to state the position of the law when it comes to documentary evidence and oral evidence as to the content of documents. Section 128 (1) of the Evidence Act, 2011 which deals with the exclusion of oral evidence by documentary evidence provides as follows:
“When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document he contradicted, altered, added to or varied by oral evidence”.
This provision of the law has found several judicial pronouncement including the authority of Egharevba v. Osagie (2010) ALL FWLR (Pt. 513) 1277 paras. A—E cited by Respondent’s counsel where the Court held as follows:
“Documentary evidence is the best evidence ….where there is oral as well as documentary evidence, the latter should be used as the hanger from which to assess the oral evidence. This is because documentary evidence is said to be more reliable than oral evidence. See EZEMBA V IBENEME (2004) All FWLR (Pt. 223) 1786 (2004) 7SCNJ 136”.
On whether oral evidence can be admitted to contradict the content of documentary evidence, the case of BFI Group v. Bureau of Public Ent. (2013) ALL FWLR (Pt. 676) P. 444 at 467, para E; and P. 474 paras. B—C where the Court has this to say about the propriety of documentary evidence is apt:
“And where there is a conflict in the evidence of witness, documentary evidence will serve as a hanger on which the truth shall resolve. Documents tendered as exhibits are very vital as they do not embark on falsehood like some mortal beings; OLUJINLE V. ADEAGBO (1988) 2 NWLR (Pt. 75) 233.”

Having established the superiority of documentary evidence and its place over oral evidence, it is pertinent to state here that the only document tendered and produced before the trial Court which the Appellant relied on also as proof of ownership to plot No. 520 at Aungwa Ward, Gboko was EXH A which is the agreement between the Respondent and her vendor Sunday O. Moses dated 2/4/1998, EXH A1, the Gboko Local Government Certificate of Occupancy in the name of Respondent’s vendor, Sunday O. Moses, and EXH A8, the PHCN account ledger in the name of the Respondent showing she owns the property.

It is settled law that aside from the law that oral evidence cannot contradict the content of documentary evidence, documentary evidence also speaks for itself, therefore I shall consider the documentary evidence under reference in the submissions of counsel to resolve this issue.

Appellant’s first contention on the ownership of Plot No. 520 situate at Aungwa Ward, Gboko was that the trial Judge closed his eyes to the submissions of counsel as regards the dates on the EXHIBITS A and A1, when by paragraph 2 of EXHIBIT A, the sale Agreement between Sunday O. Moses and the Respondent found at page 16 of the Record, where the document made reference to “the certificate of Occupancy which is with her…” and Respondent under cross-examination admitted that the certificate of Occupancy being referred to by the portion of EXHIBIT A quoted is the certificate of Occupancy in EXHIBIT A1.

I have perused the EXHIBIT A and EXHIBIT A1, the date EXHIBIT A was made is 2/04/1998, and above the schedule to EXHIBIT A1, the entry of 01-7-98 can be seen. See also pages 16 and 17 of the record. With greatest respect to the Appellant’s counsel, the issue of date seen on EXHIBIT A and EXHIBIT A1 is not in contention by the Appellant and the Respondent. The reason why Respondent tendered EXHIBIT A and EXHIBIT A1 was to establish ownership and nothing more.

More so, the Appellant himself in his pleading referred to the same EXHIBIT A1 as the document he left in the custody of the Respondent. He equally stated that he bought the property from Sunday O. Moses by the same EXHIBIT A tendered by Respondent but a perusal of same only shows his name at the column as witness.

I agree with the findings of the trial Judge that the only document establishing title to plot 520 situate at Aungwa Ward, Gboko before the Court is EXHIBIT A and EXHIBIT A1, and same clearly speaks for itself that the land was purchased by the Respondent, and this fact cannot be changed by the submission of Counsel to Appellant herein as the document speaks for itself. See the Authority of Royal Exchange Assurance Nig Ltd & 4 Ors v. Aswani Textile Industries Ltd (1991) 2 NWLR (Pt. 176) 639 at 663 cited by Respondent’s counsel.

The fact that the PHCN Leger is in the name of the Respondent bears witness that the property was the Respondent’s property. I do not see the relevance of the Notice to Quit which the Appellant referred to on the weight of ownership established by the Respondent by EXHIBITS A, A1 and A6.

On the ownership of the Toyota Corolla contested by the Appellant as well, the documents relevant to this contention as in EXHIBITS A13, A14 and A15. I have seen the purchase receipt for a Toyota Corolla with Reg. No. AQ 428 DAL at page 28 of the Record in the name of the Respondent. Even though I can’t say whether it is EXHIBIT A13 or which of the exhibits, it would appear that in the absence of any superior document produced by the Appellant showing that he purchased the said Toyota Corolla, there is no science that can make the vehicle which is clearly identified by the purchase receipt in the name of the Respondent to become that of the Appellant.

The Appellant’s counsel submission that Respondent pleaded the Reg. No. as AQ 4288 DAL is immaterial to say the least. I agree with the Respondent’s counsel that the Appellant is not misled by the registration number that the Respondent’s pleadings is referring to. More so, the receipt is in evidence, so whatever Respondent pleaded cannot alter or change the content of the receipt. See Section 128 of the Evidence Act, 2011.

And since what the Appellant is contesting is not Registration Number but ownership, I don’t see how this point made by Appellant is relevant to the determination of ownership of the said Toyota Corolla which the Appellant said belongs to her. Curiously, in all this contention, the Appellant has not produced any document showing that the said Toyota Corolla does not belong to the Respondent. Therefore I have no trouble not disturbing the finding of the trial Court that the Toyota Corolla car belongs to the Respondent.

This is ably supported by documentary evidence in EXHIBITS 13, 14 and 15. I therefore resolve this issue in favor of the Respondent and against the Appellant.

ISSUE TWO
Whether or not the trial Court was right when it declared that the house known as or located at No. 25 Off Katsina- Ala Street in High Level Area of Makurdi is owned by the Respondent and Appellant jointly.

SUBMISSIONS OF COUNSEL TO APPELLANT
Appellant’s grouse under this issue was that the trial Court shouldn’t had placed heavy reliance on EXHS A8 and A9, which is the sale agreement of plot No. BN 9827 dated 1/11/2000 and deed of assignment dated 10/9/2001 to grant Respondent ownership of those plots of land because first EXH A8 was not pleaded by Respondent, therefore Counsel referred to the authority of Oba Oyediran v. Oba Alebiosu & Ors (1992) 6 NWLR (Pt. 249) 550 at 559 to urge this Court to expunge the document from the Courts records. That therefore in the absence of EXH A8, EXH A9 cannot fly, thereby making Respondent not to have any document before the trial Court establishing her joint property with the Appellant.

SUBMISSION OF COUNSEL TO RESPONDENT
Counsel in response to Appellant’s submissions and arguing issue two submitted that the Respondent tendered Exhibits A8 and A9 to show that house No. 25 off Katsina-Ala Street High Level, Makurdi was jointly purchased by she and the Appellant and also tendered EXHIBITS A12-15 to show that she purchased some building materials in her name, while the Respondent and the Appellant packed into the premises in July 2002. Apart from Exhibits A8 and A9, which were the foundation to wit agreement of purchase and Deed of Assignment written in the names of Alexander Uttov and Martha Uttov of No. 32 Konshisha Street, High Level Makurdi dated 10th day of September 2001, jointly signed as the purchasers there is no shred of evidence from the Appellant to contradict the clear documentary evidence of ownership.

Counsel contended that Appellant’s contention that EXHIBIT A8 was not pleaded does not hold water as same was copiously pleaded at Paragraphs 2 and 3 (i) of Respondent’s pleaded facts. So also EXHIBIT A9, and Counsel referred this Court to Order 15 Rule 2 of the Benue State High Court Civil Procedure Rules, 2007 on what a pleading shall contain, to say that Respondent is required to plead facts and not evidence as wrongly submitted by Appellant Counsel.

On the issue of documentary evidence No. 1, Counsel submitted that since there was no contrary evidence from the Appellant to change the contents of purchase agreement and a registered Deed of Assignment of the house, the contents of the agreement must be taken as true. Counsel relied on the case of Royal Ceramics Ltd v. Stephemor Supply Company Ltd (Supra) and Adama Iliyasu & Ano v. Iliyasu Ahmadu (2011) All FWLR (Pt. 571) 1588 at 1606–1607.

Counsel emphasized that EXHIBIT A8 apart from being copiously pleaded was admitted in evidence without objection at the lower Court and the Appellant cannot raise same on appeal as the document is not inadmissible per se. See Salua Jagun Okulade v. Abolade Agboola Alade (1996) ANLR (reprint Edition) 56 at 62.

RESOLUTION OF ISSUE TWO
Appellant’s issue two is challenging the decision of the trial Court whether the Court was right in holding that the house located at No. 25 Off Katsina-Ala Street, High Level, Makurdi, is jointly owned by the Appellant and Respondent. However, Appellant’s counsel submissions under that issue basically only concerned itself with the fact that EXHIBIT A8, the sale agreement which shows that the Appellant and the Respondent jointly purchased the property at No. 25 Off Katsina Ala Street, High Level, Makurdi, was not pleaded, and therefore it was wrongly admitted in evidence to the detriment of the Appellant. And in the absence of EXHIBITS A8, A9 will not fly, and there will be no evidence showing that the property is jointly owned by the Appellant and Respondent.

It would appear that the Appellant is only interested in challenging the admissibility or otherwise of EXHIBIT A8 which was admitted in evidence without any objection from Counsel but under the guise of issue two.

It is correct that a perusal of the judgment of the trial Court shows clearly that the trial Court relied on EXHIBITS A8 and A9 to declare that the house at No. 25 Off Katsina-Ala Street, Makurdi, jointly belongs to the Appellant and Respondent. On Appellant’s contention that EXHIBIT A8 was not pleaded and therefore ought not to be admitted in the first place, a recourse to the pleadings before the trial Court is necessary. I have looked at Paragraph 10 of the Respondent’s pleadings at page 6 of the Record of Appeal referred to by Appellant and paragraph 3 (i) of Respondent’s Reply to Appellant’s Statement of Defence/Counter claim at page 82 of the Record and I do not agree with the Appellant counsel that EXHIBIT A8 was not pleaded.

It is settled law that to plead a document, a party must not specifically state in his pleadings that the said document is pleaded and shall be relied upon at trial, but it suffice that fact relevant to the said document are alluded to in the party’s pleadings. See the case of Falolu v. Okeowo (2021) LPELR 55783 (CA) Pp 24–25, Paras D–A where the Court held as follows:
“The law is settled that reference to a document in a pleading makes the document part of the pleading and it is open to the Court to give the document its true legal effect. See Marine Management Association Inc. v. National Maritime Authority (2012) 18 NWLR (Pt. 1333) 506…”.

A perusal of the pleadings of the Respondent under reference clearly particularly paragraph 3 (i) of Respondent’s Reply shows that the sale Agreement in EXHIBIT A8 was pleaded. More so, it is equally trite law that the essence of admissibility of documents is relevancy. The said EXHIBIT A8 which is found at page 18 of the Record clearly shows that the Appellant and the Respondent jointly purchased the property in question. Therefore, EXHIBIT A8 aside from being pleaded, is very relevant to the case of the Respondent in proving her joint ownership with the Appellant.

The Appellant it must be noted did not in all this contest provide any document that shows that EXHIBIT A8 is not the document used in purchasing the land in question. And Counsel’s submission that he did not object to the admissibility of EXHIBIT A8 when it was sought to be tendered because it was tendered from the bar does not hold water.

I therefore see no merit in the submission of counsel that EXHIBIT A8 was not pleaded, therefore this issue is also resolved against the Appellant and in favor of the Respondent.

ISSUE THREE
Whether or not the trial Court properly evaluated the evidence before it in entering judgment for the respondent and dismissing the appellant’s counter-claim.

SUBMISSIONS OF APPELLANT’S COUNSEL
Counsel submitted under this issue that the trial Court did not properly evaluate his evidence before dismissing his counter-claim. Counsel submitted that Appellant’s evidence as to disappearance of his documents from the house after Respondent moved out which gave birth to EXH D10 and EXH D11 was not considered by the trial Court in his judgment as the trial Court’s findings that Appellant did not lead any evidence in proof of his counter-claim is strange.

Counsel submitted further that the trial Court did not properly evaluate EXH D1 tendered by the Appellant to establish that he owns the property at plot 520 Aungwa ward Gboko when he held that no evidence has been led to explain how the property jointly owned by Appellant and Respondent became the sole property of the Respondent.

Counsel submitted again that even though the Respondent stated that her marriage with the Appellant was contracted under the Igbo traditional custom, the trial Court induced that it was contracted by the Tiv Custom.

SUBMISSION OF COUNSEL TO THE RESPONDENT
Counsel on this question submitted authoritatively that the learned trial Judge painstakingly and meticulously evaluated the evidence of the parties and ascribed probative value to same at the trial Court as the learned trial Judge followed the orthodox method of adjudication by weighing the evidence of the parties on imaginary scale. Counsel referred to the finding of the Apex Court in Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24 per OPUTA, JSC as he then was where the Court held thus:
“Civil cases ought to be decided on the balance of probability from where we got the famous IMAGINARY SCALE IN MOGAJI V. ODOFIN (1978 ) 3 SC 19 “That balance must have its scale evenly balanced. Before the evidence of each party is put on each (side) of the scale for weighing… Every good judgment begins with an introduction of the parties and the nature of the action states the issues in controversy sums up the evidence called by each party resolves the issue in controversy and based upon such resolution of issues reaches a verdict and makes a consequential order”.

Counsel on that note submitted that it is crystal clear that from the above quoted passage that the learned trial Judge performed his judicial duty by demonstrating he understood the case before him and eliciting an open and full consideration of the issues properly raised by the parties in their pleadings as supported by evidence. That the learned trial Judge never misapprehended the nature of the case in respect of which he was required to give dispassionate and rational decision based on the totality of the evidence adduced before him.

Moreso, that the case of the Respondent was based on documentary evidence which were all admitted in evidence without objection and were not also contradicted in anyway as the Appellant pleaded the same documents with none of the documents of the house at Aungwa Ward, Gboko shown to be in Appellant’s name, but Respondent’s name. And while all the documents in respect of house No. 25 Off Katsina Ala Street, High Level Makurdi were all in the name of the Appellant and the Respondent while the vehicle particulars were in the name of the Respondent.

Counsel submitted further that the legal findings of the trial Court as stated above are unassailable, hence, there was nothing to show that the trial Court was perverse in any way as in its findings and decisions the trial Court considered all the relevant matters and never jeopardized the case of any parties or committed various errors that faulted the case beyond redemption. Counsel thus urged this Court to resolve this issue against the Appellant and in favor of the Respondent and affirm the decision of the trial Court.

RESOLUTION OF ISSUE THREE
It is settled law that evaluation of evidence led are prerogative of the trial Court and the only situation where the Court of Appeal will be called to challenge the evaluation of evidence led at the trial Court is where the findings of the trial Court as a result of the evidence evaluated by the Court is perverse. This duty is on the Appellant who is challenging the decision of the trial Court on the grounds and basis that the evidence adduced was not properly evaluated.

Evaluation of evidence should involve a reasonable belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See Oyekola v. Ajibade (2004) 17 NWLR (Pt. 902) 356 at 379.

In instant appeal, Appellant’s first contention was that the trial Court did not make a finding on the documents Appellant claimed went missing before the Respondent left their matrimonial home. I know as of law that the burden is on the Appellant to lead evidence to state categorically that the missing documents were taken by the Respondent rather than to leave same to speculation. More so, the Appellant’s pleadings clearly stated also that Respondent denied having the purported documents Appellant is referring to.

In the absence of any evidence led as to the events leading to the missing of the documents which the Appellant has not specified, it is rather disturbing how Appellant came about EXHIBITS D10 and D11 on the premises that his documents were missing.

I have found it very difficult to appraise the submissions of counsel since same is making a lot of reference to documentary evidence but yet this Court has not been pointed to the particular document in the record of appeal. Where the said EXHIBIT D1 is found in the record of appeal to enable this Court appreciate counsel’s argument is not stated and the Court is left with the job of finding which of the documents amongst the multitude of documents tendered is EXHIBIT D1, or EXHIBITS D10 and D11.

The contention of counsel that it was the Appellant that pleaded that she was married under the Igbo custom while the trial Court introduced the issue of marriage under the Tiv custom is of no moment to the issue of proof of the counter-claim before this Court. However, the trial Judge in his judgment at pages 189–190 of the Record mentioned that it was the Appellant that made an issue of non-eligibility of the Respondent to inherit property under the Tiv custom in his address, thereby leading to the findings of the Court.

I have perused page 168 of the Record of Appeal where the Appellant’s final address before the trial Court is found and issue two formulated by the Appellant who was defendant at the trial Court is on marriage under the Tiv custom. Therefore, I wonder what point the Appellant wants to make by this submission, but I see it as I earlier said without any relevance whatsoever to the issue of non-evaluation of evidence, after all, that was not the case of the Appellant by the pleadings at the trial Court.

The Appellant under issue three is challenging the findings of the trial Court on the ground that it did not properly evaluate the evidence led before it before dismissing his counter claim and entering judgment in favor of the Respondent, but he has failed to show to this Court how the findings of the trial Court is perverse thereby giving this Court the power to evaluate the evidence at the trial Court.

It is pertinent to note that the evidence before the trial Court is basically documentary and the documents speak for themselves. Therefore, I see no merit on this issue and same is equally resolved against the Appellant.

On the whole, the Appellant having failed to make any case worthy of sympathetic consideration of this Court leaves this Court with only one option but to dismiss this appeal as lacking in merit. The judgment of the lower Court Coram. A.O. ONUM, J, of the Benue State High Court of Justice, Makurdi Judicial Division delivered on the 23rd day of May, 2012 in Suit No. MHC/287/2009 is HEREBY AFFIRMED.
Parties to bear their cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in agreement with his reasoning and conclusions on all the issues distilled for determination.

On whole, the Appellant having failed to make any case worthy of sympathetic consideration of this Court leaves the Court with only one option but to dismiss this appeal as lacking in merit. The judgment of the lower Court Coram. A.O. Onum, J, of the Benue State High Court of Justice, Makurdi Judicial Division delivered on the 23rd day of May, 2012 in Suit No. MHC/287/2009 is affirmed.
I also abide by the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA I entirely agree with the reasoning and conclusion reached therein.

My learned brother has aptly and elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed.

The judgment of the High Court of Benue State, sitting in Makurdi delivered by Hon. Justice A. O. ONUM on the 23rd day of May, 2012 in Suit No. MHC/289/2009 is hereby affirmed.