JOSEPHAT ONYIA v. AMOBI ONYIA
(2011)LCN/4675(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of July, 2011
CA/E/319/2006
RATIO
BURDEN OF PROOF: WHETHER A PLANTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE
It is settled law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. The Onus of proof does not shift to a defendant until it has been satisfied by a plaintiff with reliable and credible evidence. See KAIYA OJA V. EGUNLA (1974) 12 S.C. 55. IBORI V. AGBI (2004) ALL FWLR (PT 202) 1799 and ADENIRAN V. ALAO (2002) FWLR (PT 90) 1285. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
PLEADINGS: WHETHER PARTIES CAN SET UP IN COURT A CASE THAT IS AT VARIANCE WITH THE PLEADINGS
It is also trite law that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. A court is enjoined to concern itself only with evidence of those matters that were duly pleaded. See FEDERAL COLLEGE OF EDUCATION V. ANYANWU (1997) 4 NWLR (PT 501) 533; TOTAL NIG) LTD V. NWAKO (1978) 5 S.C. 1.1 OCHOMA V. UNOSI (1965) NWLR 321 also SPDC (NIG) LTD V. IFETA (2001) 11 NWLR (PT 724) 473, where this court held that:- “Parties are bound by their pleadings and will not be allowed to set up in court a case that is at variance with the pleadings.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
EVALUATION OF EVIDENCE: CIRCUMSTANCE IN WHICH AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE OF THE TRIAL COURT
It is settled law that evaluation of evidence is within the province of the trial court and the appellate court will not necessarily interfere with such findings derived therefrom unless it is found to be perverse or at variance with the evidence. See NNORODIM V. EZEANI (2001) 5 NSC QR 510, OKPALAKA V. UMEH (1976) 9-10 S.C. 269; EBBA V. OGODO (1984) 1 SCNLR 372, and ASHEIK V. M.T. (NIG) LTD (2010) 15 NWLR (PT 1215) 114 AT 166. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
JOSEPHAT ONYIA Appellant(s)
AND
AMOBI ONYIA Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A (Delivering the leading Judgment): This appeal is against the judgment of the High Court of Justice, Enugu Division of Enugu State delivered by R.C. Agbo J. on 16/6/2004 in Suit No. E/329/1999 (JOSEPHAT ONYIA V. AMOBI ONYIA.) The appellant herein (Josephat Onyia) was the plaintiff and the Respondent (Amobi Onyia) was the defendant in the lower court.
The appellant had in the Suit in the lower court, vide an amended statement of claim dated 20/8/1996 claimed in paragraph 23 thereof as follows:-
(a) N215, 390 (Two hundred and fifteen thousand, three hundred and ninety naira).
(b) Recovery of vehicle No. AN 1522D.
(c) Account of all monies relating to common business transactions.
(d) Declaration that the plaintiff is entitled to ownership of the properties known as Block D.
Unit 9, Federal Housing Estate, Enugu and No. 13 Afuizinwa Street, Azuiyiokwu Layout, Abakaliki, transacted in the name of the defendant.
A summary of the facts that led to the action as can be gleaned from the record is that the parties are brothers of the full blood. The appellant is an elder brother to the Respondent whom he trained in the primary school. He subsequently advanced some money to the said respondent to establish a patent medicine store and to manage it as a joint/common business. The appellant also bought a new Toyota panel van with Registration Number AN 1522D and handed it to the Respondent to run the patent medicine business. He (the appellant) also advanced various sums of money to the respondent and equally procured a number of market stalls at Ogbete Main market in the name of the Respondent. He also bought another vehicle No. IM 3983 G. which he gave to one Godwin Onyia to manage and the proceed there from paid into an account opened in the name of the Respondent. Furthermore, in 1982, he the appellant gave the defendant the sum of N2, 500.00 to purchase a land for him at N0. 13 Afuezinwa Street, Azuiyiokwu Layout Abakaliki. He also got a plot allocation for Block D, Unit 9, Federal Housing Estate, Trans Ekulu, Enugu which allocation was made also in the name of the Respondent. He further completed the building on the plot with the sum of N10, 000 in 1984 and has been living therein till date. Disagreement came between the parties sometime between 1988 and 1990 which eventually led to the appellant filing the Suit in the lower court.
Pleading were subsequently ordered filed and exchanged by the parties who also effected amendments therein in the course of trial. The appellant’s current pleading is dated 22/8/1996 and his reply to the further amended statement of defence is dated 20/3/1997. (see pages 33 and 38 of record.) The Respondents further amended statement of defence is dated 10/2/1997 and filed on 11/2/1997. See page 44 of record).
Hearing in the Suit commenced formally on 6/5/96 wherein the appellant testified and called two other witnesses. The Respondent also testified in his defence and called nine other witnesses.
At the conclusion of hearing and address by counsel for both parties, the learned trial Judge R.C. Agbo J. in his judgment delivered on 16/6/2004 dismissed the appellants claim.
Being dissatisfied with the said decision he filed a Notice of appeal containing 3 grounds of Appeal on 13/7/2004. Briefs of argument were subsequently filed and exchanged. The appellant’s brief of argument dated 29/9/2009 and filed on 12/10/2009 was settled by D.A. Aneke (Esq). There is also the appellant reply brief dated 16/2/2010 and filed on 19/2/2010. The Respondents brief of argument dated and filed on 20/11/2009 was settled by O. Akpamgbo (Esq). At the hearing of the appeal on 7/4/2011, counsel for both parties duly adopted and relied on their respective briefs of argument.
For the appellant 3 issues were raised for determination, to wit:-
(1) Whether the learned trial judge was right in law when he held that there was no common business between the parties.
(2) Whether the learned trial judge was right when he held that the weight of evidence before him tilt in favour of the defendant/Respondent?
(3) Whether the evidence before the court suggests that the relationship between the parties can be determined in accordance with the principles of resulting trust?
On the other hand, the respondent’s brief of argument raised one issue for determination as follows:-
Did the plaintiff/appellant based on the totality of evidence before the court; discharge the burden of proof on him to be entitled to judgment?
On the appellants issue No. 1, D.A. Aneke of counsel referred to the evidence of PW1 (i.e. the appellant) to the effect that he gave money to the respondent to start a patent medicine shop, from which they will share the proceeds and that the Respondent in paragraphs 5, 6, 7 and 8 of his defence admitted that the appellant gave him money. He added that the respondent admitted under cross-examination that all major documents relating to the patent medicine store and other transactions were handed over to the appellant, but contended that it was an after thought because he returned all the receipts of the transactions to the appellants for accountability because he was representing him in many businesses and social transactions.
Learned counsel further contended that from the pleadings and totality of evidence, the parties agreed that appellant gave the respondent money to start a patent medicine store at No. 34 Silver Smith Avenue in which case there is a presumption that there was a common business in favour of the appellant. He cited in support WILLIAMS V. AKINWUMI (unreported) SC 218/6566, and NDOMA EGBA V. A.C.B. (2005) KLR (PTS 202 AND 203) 2467.
Now to properly appreciate the true scenario in the whole saga, I am inclined to reproduce the relevant paragraphs of the parties pleadings.
Paragraphs 1 to 14 and 19-20 of the appellants amended statement of claim dated 20/8/1996 read as follows:-
(1) The plaintiff is the elder brother of the defendant.
(2) The plaintiff paid the school fees of the defendant and trained him as a patent medicine dealer.
(3) The plaintiff trusted the defendant and got him to represent him in many business and social transactions.
(4) By 1980 the plaintiff opened a patent medicine store at 34 Silver Smith Avenue at a cost of N5, 000.00 (five thousand Naira) in the name of the defendant.
(5) The defendant managed the patent medicine store.
(6) In 1981 the plaintiff bought Toyota Panel Van No. AN 1522 D for the carrying out of the business by the defendant for a sum of N4, 051.00 (four thousand and fifty one Naira) and gave it to the defendant.
(7) In 1982, the plaintiff thinking that he was building up a stable financial business bought vehicle registered as No. IM 3983 G controlled by Mr. Godwin Onyia. The plaintiff gave the defendant a sum of N13, 640.00 (thirteen thousand six hundred and forty Naira) to deposit at A.C.B. Limited, Ogbete.
(8) By 1 982 the plaintiff gave the defendant the sum of N2, 500.00 (two thousand five hundred Naira) for the purchase of a piece of land known as 13 Afuezinwa Street, Azuiyiokwu Layout, Abakaliki.
8(a) Stall line P. 12/14 was originally allocated to Simon Agu the interest of whom the plaintiff purchased. The plaintiff will at the trial rely on the allocation paper dated 23/4/81. Stall M 18/18 was allocated to Christopher Nwafo who transferred his interest to the plaintiff. The plaintiff will rely on allocation paper dated 10/4/81.
(b) The receipt dated 1/9/81 for the sum of N5.00 which the plaintiff paid through the defendant in respect of application for Federal Low Cost Housing will be relied on at the trial.
(9) In continuation of the desire of the plaintiff to build a successful business with the defendant, the plaintiff gave the following amounts to the defendant;
a. N4, 200.00 (four thousand two hundred Naira) paid to Federal Mortgage Bank for land at Abakaliki being 10% of the loan from the bank.
b. Shed at Ogbete Market Line P. 12 No. 14 -N2, 000 (two thousand Naira).
c. Shed at Ogbete Market Line M 18 No. 18 N3, 000.00 (three thousand Naira).
d. Store at 24 Chime Avenue, New Haven, Enugu N10, 000.00 (ten thousand Naira).
e. Radio, Fan, T.V., Chair and Refrigerator N5, 000.00 (five thousand Naira).
(10) By the same 1982 the plaintiff gave the defendant the sum of N15, 000.00 (fifteen thousand Naira) to deposit in the Bank.
(11) The plaintiff wanted to purchase a building in the Federal Housing Estate and gave the defendant the money with which Block D Unit 9 Federal Housing Estate, Enugu was paid for.
(12) The defendant wrongfully paid the money in his name and got Block D Unit 9 Federal Housing Estate, Enugu.
(13) When the plaintiff got to know that the house was purchased in the name of the defendant, he asked the defendant why he bought it in his name.
(14) The defendant told the plaintiff that it was easier so to do.
(14)(a) The plaintiff to show that he had joint or common business with the defendant, will at the trial rely on receipts for purchase of vehicles issued in his name.
(b) The plaintiff further states that the plaintiff opened an account with A.C.B. Ltd., Ogbete, Enugu in the name of the defendant and it was therein that the proceeds of Vehicle No. IM 3983 G was paid into. This action was in continuation of joint/common business.
19. The plaintiff demanded an account in respect of the businesses being run for the plaintiff by the defendant 1990 but the defendant refused.
20. The matter was reported to the family meeting of both the plaintiff and the defendant where the defendant admitted the transaction but refused or failed to give account in writing.
The Respondent’s in his further amended statement of defence as shown in pages 44 to 47 of record averred in paragraphs 4to 15 and 18 as follows:-
4. The defendant denies paragraphs 3, 4, and 5 of the statement of claim and puts the plaintiff to the strictest proof thereof.
5. The defendant in further answer to paragraph 4 of the statement of claim avers that the plaintiff gave out to the defendant, on completion of his apprenticeship as a patent medicine dealer, the sum of N2,000.00 (Two thousand Naira) only and purely on brotherly basis to help the defendant in setting himself up. It is with this money and the personal savings of the defendant that the patent medicine shop at 34 Silversmith Avenue, Ogbete – Enugu was set up. It is this same shop that was moved to New Haven in 1988. The receipts with which the advance and the rents are paid shall be founded upon at the trial.
6. The defendant denies paragraphs 6 to 8 of the statement of claim and puts the plaintiff to the strictest proof thereof.
7. In further answer to paragraph 6 of the statement of claim, the defendant avers that the said Toyota Panel Van AN 1522D was bought on the I4th August, 1981 on which day the plaintiff gave only N600.00 (Six hundred Naira) as loan to the defendant. The said loan was repaid on the 16th November, 1986. The defendant will at the trial rely on all the bank documents of both parties and the plaintiff is hereby out on notice to produce his passbook covering the said period at the trial.
8. In further answer to paragraph 7 of the statement of claim, the defendant avers that when the plaintiff wanted us to start building a house in the village, he had N4,532.00 (Four thousand, five hundred and thirty-two Naira) in his account which he wanted to be contributing from. The defendant advised against the idea but rather suggested the plaintiff bought a taxi to be yielding some money from where the plaintiff could be contributing from. The car M 3933 G was bought for N6, 500 (Six thousand, five hundred Naira) with the defendant giving out the sum of N1,000.00 (One thousand Naira) to the plaintiff as loan. The plaintiff raised the balance externally. The plaintiff is hereby put on notice to produce his passbook as the defendant will found on it at the trial.
9. In further answer to paragraph 8 of the statement of claim, the defendant avers that the entire purchase money of 13 Afuezinwa Street, Azuiyiokwu Layout, Abakaliki was from his purse. The plaintiff never contributed a kobo. The payment was made in two installments. The Agreement for the purchase is now with the Federal Mortgage Bank of Nigeria, Enugu that granted the loan. The defendant will at the trial found on the receipt for the part payment of the land and the Certificate of Occupancy now with the Federal Mortgage Bank of Nigeria.
10. The defendant denies paragraph 9 of the statement of claim and puts the plaintiff to the strictest proof thereof.
11. The defendant in further answer to paragraph 9 of the statement of claim avers that he got stuck before he got to the D.P.C. level stage of the building at Abakaliki which was the condition precedent for the grant of loan by the Mortgage Bank, he got a loan of N3, 800.00 (Three thousand, eight hundred Naira) from the plaintiff – a sum which had been paid back to the plaintiff. The money was paid as follows:
Purchase of IM 3983 G … N1,000.00
Purchase of IM 9 GS … 600.00
Purchase of AN 1919 D … 800.00
Purchase of AN 6596 (505) … 2,500.00
Debt owed by the plaintiff, paid by
The defendant to Raphael Exe 500.00
N5, 400.00
The plaintiff is still owing the defendant the sum of N1, 600.00 (One thousand, six hundred Naira).
12. The defendant further avers that the two sheds at Ogbete market belongs to him exclusively and that he received no kobo from the plaintiff for the New Haven Store where he pays N100.00 (One hundred Naira) per month nor did he receive any radio, food, chair or refrigerator from the plaintiff. The receipts and documents relating to the sheds at Ogbete Market shall be founded upon at the trial.
12a. In further answer to paragraph 9 of the statement of claim, the defendant states that the shed at Line P12/14 was duly allocated to the defendant and never bought from anybody. The shed was allocated by the Enugu Local Government, on application, vide the allocation letter of 4th April 1989 and which allocation was paid for vide receipts of 4th April, 1989 and 13th April, 1989 as well as the clearance form. These documents are hereby pleaded.
13. The defendant denies paragraphs 10 to 15 of the statement of claim and puts the plaintiff to the strictest proof thereof.
14. The defendant in further answer to paragraph 10 of the statement of claim avers that the plaintiff in a peace meeting set up by the Umuigwe family explained how he spent the N15,000.00 (Fifteen thousand Naira) under reference. The Committee was made up of five members with Ignatius Ene and Chukwumah Eze as the Chairman and Secretary respectively. The defendant will at the trial found on the letters of the plaintiff to the Chairman Umuigwe Abroad family meeting of 2nd July, 1989 wherein he explained the whole claims he is now making denying we ever had joint business and defendant’s letter to the same Chairman.
15. The defendant in further answer to paragraph 11 to 15 of the statement of claim avers that the plaintiff had no hands whatsoever in the acquisition of the building as everything was done by him. It was when the house issue was discussed by the defendant and the mother that it was agreed that since the defendant was not ready to occupy the house that the mother persuaded him to allow the brother (the plaintiff) to occupy the house. The plaintiff was then asked to move into the house in 1984 free of charge. The plaintiff was issued with a notice of quit dated the 18th July, 1991 and he thereafter caused to be addressed to the defend ant a letter dated 20th July 1991 from his solicitor and which letter is hereby pleaded. The house Plot D Unit 9 Housing Estate was bought through the Federal Mortgage Bank of Nigeria and the final payment was made as contained in their letter of 13th day of June, 1991 which is hereby pleaded, as well as the application form which was obtained free of charge.
18. The defendant in further answer to paragraph 19 of the statement of claim avers that there was never a time he had a joint business with the plaintiff. The issue of joint business came up for the first time when the defendant asked the plaintiff to pack out of his house for making overtures to take over the house in the name of the plaintiff s son – Obinna Onyia.
Now the learned trial judge after a careful review of the evidence had this to say in his judgment at pages 154 to 155 of the record:-
“The Onus of proof lies on the plaintiff who must prove his case on the strength of his own case and not on the weakness of the defense (sic) case. The plaintiff in his evidence in chief stated that “when I opened the store for him I had it in mind that proceeds from the business will be shared by both of us. The defendant managed the patent medicine store”
Under cross-examination the plaintiff stated as follows:-
“What I had in mind when the defendant went to train as a patent medicine dealer was that I will capitalize the business, after sometime. I will withdraw my capital and we share the profit. The defendant will then commence his own life with the profit.”
Further in his cross-examination he said:-
“We were doing joint business. We started up the joint business in 1980.”
But in a letter to the Umuigwe Abroad family meeting authored by the plaintiff and tendered as Exhibit ‘A’ in this case, the plaintiff wrote in paragraph I as follows:-
“There has never been anytime that I carried out any joint business with my brother Amobi, what I was doing on trust was to give him money I realized from my vehicle to keep for me as he has more time than myself. I started doing this when I was training him and continued to do so for sometime after I have opened up a patent medicine shop which I allowed him to manage for me.”
With these pieces of evidence can it be said that the plaintiff has established his prayer in paragraph 23 (c) of his pleadings? I do not think so. In his address plaintiff s counsel posited that there was an oral agreement between the parties regulating their business relationship. That was neither proved.
The evidence led by the plaintiff was what he had in mind, i.e. profit sharing. That was neither pleaded nor proved. Having not established any common or joint business relationship with the defendant, the prayer in paragraph 23 (c) of the plaintiff’s pleadings fails.”
I agree in to-to with the above analysis of the evidence by the learned trial judge and the conclusion he reached there from.
It is settled law that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. The Onus of proof does not shift to a defendant until it has been satisfied by a plaintiff with reliable and credible evidence. See KAIYA OJA V. EGUNLA (1974) 12 S.C. 55. IBORI V. AGBI (2004) ALL FWLR (PT 202) 1799 and ADENIRAN V. ALAO (2002) FWLR (PT 90) 1285.
It is also trite law that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. A court is enjoined to concern itself only with evidence of those matters that were duly pleaded. See FEDERAL COLLEGE OF EDUCATION V. ANYANWU (1997) 4 NWLR (PT 501) 533; TOTAL NIG) LTD V. NWAKO (1978) 5 S.C. 1.1 OCHOMA V. UNOSI (1965) NWLR 321 also SPDC (NIG) LTD V. IFETA (2001) 11 NWLR (PT 724) 473, where this court held that:-
“Parties are bound by their pleadings and will not be allowed to set up in court a case that is at variance with the pleadings.”
The appellant in this case pleaded in paragraph 14(a) and (b) as follows:-
14(a) The plaintiff to show that he had joint or common business with the defendant, will at the trial rely on receipts for purchase of vehicles issued in his name.
(b) The plaintiff further states that the plaintiff opened an account with A.C.B. LTD., Ogbete, Enugu in the name of the defendant and it was therein that the proceeds of the vehicle No. IM 3983 G was paid into. This action was in continuation of joint/common business.”
However, as rightly pointed out by the learned trial judge, the appellant did not adduce convincing evidence either oral or documentary to prove the existence of any joint/common business between him and the Respondent. What is more? Rather than giving evidence in support of his averments as to a Joint/Common business in his amended statement of claim, the appellant adopted a different tune to the effect that when he opened the store for the respondent, he had in mind that the proceeds of the business will be shared by both of them. This also contrasted in all ramification with Exhibit ‘A’ which he the appellant wrote to his family meeting wherein he stated in paragraph 1 as follows:-
“There has never been any time that I carried out any joint business with my brother Amobi, what I was doing on trust was to give him money I realize from my vehicles to keep for me as he has more time than myself.”
The appellant indeed cannot be permitted at his own whim and caprice to approbate and reprobate as this will constitute an impediment on the pathway of justice and fair play.
Issue No. 1 is therefore resolved in favour of the Respondent.
On issue No. 2 learned counsel for the appellant adopt their argument in issue No. 1 and further submitted that, the issue before the court below relates to title to the following properties:-
(a) Block D. Unit 9. Federal Housing Estate, Enugu.
(b) No. 13 Afuezinwa Street, Aziyokwu Layout, Abakaliki.
(c) Stall line P. 12/14 and M/8/18 Ogbete main market, Enugu.
He added that all the properties including the patent medicine store, and vehicles were purchased and/or transacted between 1981 and 1982 when the Respondent started his patent medicine store with no savings. He referred to the 5 ways of proving title to land, to wit:-
(1) By Traditional Evidence
(2) By Document of title
(3) By various acts of ownership and possession numerous and positive to warrant inference of ownership.
(4) By acts of long possession and enjoyment of the land and
(5) By proof of possession of adjacent land to the land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. And referred to IDUDUNDUN V. OKUMAGBA (1976) 9-10 S.C. 227 and ATANDA V. AJANI (1989) 6 S.C. (PT 11) 87 or (1989) 3 NWLR (PT 111) 511.
Learned counsel contended that from the totality of the pleadings and evidence, limbs 3 and 4 avails the appellant while there is a presumption in his favour in limb 2. This is because the appellant pleaded that he gave the respondent money for the purchase of the properties including N5 for application form for the Federal Low Cost Housing which the respondent applied for in his name.
Learned counsel further contended that the evidence of DW1 and DW3 are full of material contradictions and inconsistencies. He cited in support the cases of EZEMBA V. IBENEME (2004) 7 KLR (PTS 184-186) 1939 and AGBI V. OGBEH. (2006) 5 KLR (PT 217) 1573.
He also contended that the learned trial judge attached much weight to the content of Exhibit ‘A’ without considering the evidence of the appellant at page 96 of the record which was not contradicted. He then urged this court to set aside the judgment of the lower court.
In the course of the consideration and evaluation of the evidence, the learned trial judge at page 155 of the Record found as follows:-
“On the prayer in paragraph 23(d) of the statement of claim, it is an admitted fact that the legal title to the properties known as Block D. Unit 9. Federal Housing Estate, Enugu and No, 13 Afuezinwa Street, Azuiyiokwu Layout, Abakaliki vests in the defendant. The plaintiff will establish an enforceable equitable interest on the properties if he can prove that he paid for them, as a trust would have been created. See CHIEF NYE GEORGWILL V. MADAM GRACE EKTNNE (1988) 1 NWLR (PT 562) 454; SVAGE & ANOR V. DUNNING-HAM (1974) 1 Ch. D. 181 and ONYEADOR V. ONYEADOR E/416/93 unreported, delivered by this court on 29th June 2004. I am satisfied with the evidence of DW9, Johnson Oluremi Olorunleke that Block D. Unit 9. Federal Housing Estate, Trans Ekulu, Enugu was allocated to the defendant and paid for through mortgage. The plaintiff’s pleadings in paragraph 11 of the amended statement of claim that he provided the money with which the defendant bought the property cannot stand. I prefer the evidence of the defendant to that of the plaintiff in respect of the purchase of Block D. Unit 9. Federal Housing Estate and hold that the plaintiff has failed to justify the prayer sought by him in paragraph 23 (d) of his amended statement of claim relating thereto.”
In relation to No. 13 Afuezinwa Street, Azuiyiokwu Layout, Abakaliki, the learned trial Judge duly considered the evidence adduced by the parties before reaching his conclusion. I am tempted to reproduce it as contained in page 156 of the record, if for nothing else but to illustrate the effort of the learned trial judge in a making a proper finding of fact. It reads thus:-
“In relation to No. 13 Afuezinwa Street, Azuiyiokwu Layout, Abakaliki, has admitted by both sides that the legal title vests in the defendant. The plaintiff pleaded and testified that he paid the purchase price of N2, 500 for the property at Azuiyiokwu. He testified that when the initial payment of N1000 was made, he went with the defendant. The payment was made in the defendant’s name. All the documents were prepared in the name of the defendant. The defendant denied in his pleadings that the plaintiff infact paid for the land through him. Strangely enough, outside his Ipsi Dixit, the plaintiff was not able to produce any witness to testify as to what happened at Abakaliki. It is true that defence witness testified in relation to N0. 17 Afuezinwa Street and not No. 13 but the onus is on the plaintiff to prove his case. Strangely enough the plaintiff admitted that the defendant mortgaged the property to raise a loan to develop it. The plaintiff indeed did plead to have provided 10% of the value of the mortgage but has not contributed to the redemption of the mortgage. Because the mortgage has not been redeemed, the documents of title are still lying with the Federal Mortgage Bank. I have no difficulty in preferring the evidence of the defendant to that of the plaintiff in regard to this transaction. It is too much to accept that the plaintiff bought property through the defendant, allowed the defendant to mortgage the property and then refused to redeem the mortgage thereby subjecting the property to the realization of the mortgage by the Federal Mortgage Bank anytime it so wishes. I disbelieve the plaintiff.”
It seems to me that having regard to the state of pleadings and the supporting evidence as presented to the lower court, the learned trial judge acted rightly in holding that the weight of evidence titled in favour of the respondent after due and thorough evaluation of the evidence.
It is settled law that evaluation of evidence is within the province of the trial court and the appellate court will not necessarily interfere with such findings derived therefrom unless it is found to be perverse or at variance with the evidence. See NNORODIM V. EZEANI (2001) 5 NSC QR 510, OKPALAKA V. UMEH (1976) 9-10 S.C. 269; EBBA V. OGODO (1984) 1 SCNLR 372, and ASHEIK V. M.T. (NIG) LTD (2010) 15 NWLR (PT 1215) 114 AT 166.
In the instant case, there is not shown any justification for this court to interfere with the stance taken by the learned trial judge.
Issue No. 2 is therefore resolve against the appellant.
On issue No. 3, learned counsel adopted their submissions in issues 1 and 2 and added that a party must win a case on the strength of his evidence and not on the weakness of the adverse party.
However, having perused the three grounds of appeal vis a vis the issues for determination as raised by the appellant in his brief of argument, I unfortunately did not discern the nexus between any of the grounds of appeal and the appellants issue No. 3. It does not seem to have been distilled from any of the grounds.
Shorn of the particulars, I herein below reproduce the three grounds of appeal:-
GROUND 1
The learned trial judge erred in law when he failed to distinguish the law relating to common business and joint business.
GROUND 2
The learned trial judge failed refused or neglected to properly evaluate the evidence of the plaintiff and his witnesses and the defendant and his witnesses before entering judgment for the defendant.
GROUND 3
The judgment is against the weight of evidence.
The appellant’s issue No. 3 reads as follows:-
ISSUE 3: Whether the evidence before the court suggests that the relationship between the parties can be determined in accordance with the principle of resulting trust.
The above issue to my mind was not distilled from any of the grounds of appeal. Where the issue formulated for determination in an appeal is neither related to nor can be distilled from any or all of the grounds of appeal, the issue is unarguable and is afortiori incompetent and ought as of necessity to be struck out. See IFEDIORA V. UMEH (1988) 2 NWLR (PT 74) 5; NWAOKORO V. NWOSU (1994) 4 NWLR (PT 337) 172; UMEANO ACHIAKPA V. JOSIAH NDUKA (2001) 7 NSC QR 34; AKPAN V. THE STATE (2001) 7 NSCQR 235; NTEOGWUILE V. OTUO (2001) 6 NSCQR 1032.
See also OMAGBEMI V. GUINESS (NIG) LTD (1995) 2 NWLR (PT 377) 258 where the Supreme Court at page 266-267 held as follows:-
“It is now settled that any issue or issues for determination formulated in either the brief of argument of the appellant or the respondent, in any case must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal then they cannot stand, for being irrelevant. It follows that any argument in the brief based on the faulty issue for determination is equally irrelevant to the appeal.”
In the instant case, having found that the appellant’s issue No. 3 is not based on any of the three grounds of appeal, is hereby discountenanced for being incompetent.
On the only issue for determination as raised by the Respondent, which is whether the plaintiff/appellant, based on the totality of evidence before the court, discharged the burden of proof on him to be entitled to judgment? It was submitted by learned counsel for the respondent that in civil cases the burden of proof rests on the plaintiff and only shifts when the plaintiff has established his case. He contended that while the appellant in his amended statement of claim averred that at the defendant/respondent was doing business for him and that the defendant/Respondent never contributed any money to the business. The said appellant in his viva voce evidence deviated from these facts as averred and set up a totally different case to the effect that he and the Respondent were doing joint business.
Learned counsel further referred to pages 81-85 of the record of proceedings showing a letter from the appellant’s counsel to the respondent and another letter from the appellant himself to the chairman of Umuigwe Abroad family meeting in which he confirmed his stand to abide by their decision on the dispute between him and the respondent. He added that the letter estops the appellant from bringing any action against the Respondent. He cited the following cases. MENAKAYA V. MENAKAYA (1996) 9 NWLR (PT 472) 256; UKAEGBU V. UGORJI (1991) 2 NWLR (PT 288) 638 and ALAKIJAH V. ALAHAJI ABDULAI (1993) 6 NWLR (PT 552) at page 1.
Learned counsel also urged the court to invoke the provisions of Section 151 of the Evidence Act to estoppel the appellant from denying the contents of the aforesaid letters. In his reply brief learned counsel for the appellant submitted that the respondents argument on estoppel for the first time in this appeal is incompetent and ought to be discountenanced because in raising the issue of estoppel for the first time in this court, the respondent need to apply for leave to do so.
A close perusal of the issue so raised by the respondent reveals that it is similar to issue NO. 2 raised in the appellant’s brief and having been so exhaustively dealt with therein, it will be an unnecessary exercise and in fact unwieldy surplusage to embark on a repeat analysis of the lower court’s approach to the evidence adduced by the parties. See OKOTIE EBOH V. MANAGER (2005) ALL FWLR (PT 241) 277.
In the circumstance, the conclusion reached on the appellant’s issue N0. 2 is taken to cover and apply herein.
In the final analysis, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the High Court of Justice, Enugu, delivered by R.C. Agbo J. on 16/6/2004 in Suit No. E/328/1991 (Josephat Onyia V. Amobi Onyia) is hereby affirmed.I make no order as to cost.
ABDU ABOKI, J.C.A: I have the privilege of reading in draft the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA. I am in total agreement with the opinion and conclusions contained therein. I also affirm the decision of the lower court delivered on 16/6/2004. I make no order as to costs.
AYOBODE O. LOKULO-SODIPE, J.C.A: I agree.
Appearances
D.A. AnekeFor Appellant
AND
O. Akpamgbo (Esq)For Respondent
