CHIEF PETER MADUKA OKORONKWO V. LAWDEE INTERNATIONAL (NIG.) LTD & ORS (2012)

CHIEF PETER MADUKA OKORONKWO V. LAWDEE INTERNATIONAL (NIG.) LTD & ORS

(2012)LCN/5651(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of November, 2012

CA/PH/455/2006

RATIO

EVIDENCE: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERENCE WITH EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

The burden rests on the party alleging improper evaluation of evidence to identify or specify the evidence improperly evaluated and to show that if the error had been corrected, the conclusion reached would have been different. See Richard Igago vs. The State (1999) 12 SCNJ 140 (1999) 6 NWLR (Pt.608) Page 568, Alhaja Sobalaje Eleran & Ors. vs. Dr. Ajiku Aderonpe (2008) 11 NWLR (Pt. 1097) 50 at 69. PER MOJEED ADEKUNLE OWOADE, J.C.A.

APPEAL: REASON WHY AN APPEAL COURT CANNOT BE ASKED TO EVALUATE EVIDENCE

The reason why an appeal court cannot be asked to evaluate evidence at large is that it is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to inquire into disputes, but to inquire into ways the disputes have been tried and settled. See Karibi-Whyte, JSC in Ajadi vs. Okenihun (1985) 1 NWLR (Pt. 3) 484 at 492.

Indeed, the above appears to be a re-echo of the immortal words of Hurley C.J. sitting at the High Court of Northern Nigeria in the case of Igboke Oroke vs. Chukwu Ede (1964) …..N.N.L.R. 118 at pages 119 – 120:-

“It is the business of a trial court to decide disputes by trying cases. It is not the business of an appeal court to re-open disputes by trying cases again, an appeal court’s duty is to see whether trial courts have used correct procedure to arrive at the right decision. An appeal court does not inquire into dispute, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial court and not in the appeal court, each party must take the whole of his case in the trial court and call his witnesses there, he should not be allowed to improve on his case in the appeal court……”

See also Onu JSC in the case of Onyia Nwagwu Ngwu & Others vs. Ani Ozougwu and Another. [1997] 11 S.C.N.J. 1 at 11. PER MOJEED ADEKUNLE OWOADE, J.C.A.

APPEAL: WHAT SHOULD A GROUND OF APPEAL CONSTITUTE

It is trite law that a ground of appeal must arise from the judgment and should constitute a challenge to the ratio of the decision and not just formulated in the abstract. See Egbe vs. Alhaji (1990) NWLR (Pt. 128) 546 at 590. PER MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

CHIEF PETER MADUKA OKORONKWO Appellant(s)

AND

1. LAWDEE INTERNATIONAL (NIG.) LTD
2. LAWRENCE ONYEACHO
3. EMMANUEL OBIAGWU
4. C.C. ONUOHA ESQUIRE
5. THE REGISTRAR OF DEEDS LANDS REGISTRY, UMUAHIA Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment): This is an appeal from the judgment of Hon. Justice L. Abai sitting at Aba, in the Aba Judicial Division of the High Court of Abia State in consolidated Suits Nos. A/88/2002 and A/102/2002 delivered on 4th May 2006.
In suit No. A/88/02, the Appellant as plaintiff claimed against the Respondents in summary for a declaration that the storey building situate and being at No. 7 Okpara Lane Off No. 109 Port Harcourt Road Aba and covered by Certificate of Occupancy No. LABA: 1874A at 26/26/247 of the Lands Registry Umuahia is the bona fide property of the plaintiff. He also claimed the rescission of the purported Power of Attorneys executed first to the 2nd Respondent and later to the 3rd Respondent on the ground that the sale Agreement and the Power of Attorney which he (Appellant) purportedly executed to the 2nd Respondent was a product of undue influence and misrepresentation.
In suit No. A/102/2002, the 3rd Respondent as plaintiff claimed against the Appellant for possession, arrears of rent and mesne profit on the same said property at 7 Okpara Lane Port-Harcourt Road Aba.
The two Suits were consolidated and tried together by the court below. The claims of the Appellant against the Respondents in greater detail could be found at paragraph 63 of the statement of claim as follows:
“a. A declaration of the honourable court that the storey building situate and being at No 7 Okpara Lane off No. 109 Port Harcourt Rd Aba and covered by certificate of occupancy No LABA: 1874A and registered as No 26 at page 26 in volume 247 of the lands registry formerly at Owerri but now Umuahia is the bona fide property and residential building of the plaintiff.
b. A declaration of the honourable court that the plaintiff did not sale (sic) assign, mortgage give an irrevocable power of attorney and or transfer to the 1st, 2nd and 3rd defendants or any one of them at all the plaintiff aforesaid residential building situate at No 7 Okpara Lane off 109 Port Harcourt Rd Aba.
c. A declaration of the Hon. court that the irrevocable power of attorney registered as No. 18 at page 18 in volume 541 lands registry Umuahia purportedly executed between the plaintiff and the 2nd defendant dated 1st April 1999 and another registered No 92 at page 92 in volume 551 of the lands registry Umuahia purportedly made between the 2nd defendant and the 3rd defendant dated 1st August 2001 are null, void ab initio and of no effect whatsoever as the said power of attorney were obtained dubiously through undue influence and or misrepresentation that the plaintiff was signing a document or documents that would ginger him to liquidate the entire debt owed, the 1st defendant by the plaintiff timeously.
d. A declaration of the honourable court that the plaintiff bought tafita (material for sewing bags) worth N10,060,035 less N294,598.50 rebate from the 1st defendant in a purely trading dealing and has paid the 1st defendant the sum of N8,957,922 leaving a balance of N1,500.000 unpaid. The said taffeta materials having no connection with the plaintiffs residential building aforesaid.
e. An order of court commanding the 2nd defendant to surrender unconditionally to the plaintiff, the plaintiff original statutory right of occupancy registered as No 26 at page 26 in volume 247 of the lands registry formerly at Owerri but now Umuahia and irrevocable power of attorney registered at No 2 at page 2 in volume 503 of the lands registry formerly at Owerri but now at Umuahia made between Nelson Ojingwa and the plaintiff. The plaintiff innocently and unsuspectingly gave the 2nd defendant the said documents to hold as a charge for unpaid debt of N1,500,000,00 which the plaintiff owed the 1st defendant.
f. An order of court commanding the 1st and 2nd defendant to return to the plaintiff the Citizens Bank of Nigeria Plc Umuahia Branch Cheque No 001744973 dated 28th August 2001 for the sum of N1,500,000 issued by the plaintiff for the liquidation of debt of N1,500,000 which the plaintiff owes the defendant. The plaintiff gave the aforesaid property documents to the 2nd defendant to hold as a charge when the 1st and 2nd defendants were pestering the plaintiff to pay them outstanding indebtedness owed the 1st defendant.
g. An order of court commanding the 2nd, 3rd and 5th defendants to produce before the honourable court for purposes of cancellation irrevocable powers of attorney registered as No 18 at page 18 volume 541 of the lands registry Umuahia purportedly made between the plaintiff and the 2nd defendant and the other second irrevocable power of attorney registered as No 92 at page 92 in volume 551 lands registry Umuahia purportedly made between the 2nd defendant and the 3rd defendant or any other illegal title document in the possession of the 2nd , 3rd and 5th defendants all involving the plaintiffs aforesaid property.
h. An order of court canceling irrevocable powers of attorney registered as No 18 at page 18 in volume 541 of the lands registry Umuahia and the other irrevocable power of attorney registered as No 92 at page 92 in volume 551 of the lands registry Umuahia in the illegal possession of the 2nd and 3rd defendants.
i. N20,000.00 aggravated damages on the principle of salatium for trespass and psychological trauma caused the plaintiff by 1st, 2nd, 3rd and 4th defendants through illegal incursion of plaintiff’s property situate at No 7 Okpara Lane off 109 Port Harcourt Rd Aba in that the 2nd and 4th defendants on 1st April 1999 dubiously executed a document through undue influence and or misrepresentation and urged plaintiff to sign purporting same to have been freely and knowingly executed by the plaintiff involving the plaintiffs aforesaid property for a paltry consideration of N100,000. The 2nd defendant later illegally on 1st August 2001 transferred to the 3rd defendant the aforesaid property was by 1995 worth N3.5m as shown in the valuation report prepared by Uma Uma & Company herein Pleaded.
j. And order of court commanding the 1st and 2nd defendants to return to the plaintiff the plaintiffs Citizen Bank of Nigeria Plc Umuahia branch cheque No 001744937 and dated 26th August 2001 for the sum of N1,500,000.00 now in possession of the 1st and 2nd defendants.
k. Perpetual injunction restraining the 1st, 2nd and 3rd defendants either by themselves, their servants, workers, agents and or privies or otherwise howsoever from purporting to transfer through irrevocable power of attorney, or mortgaging, selling assigning, pledging, taking illegal possession of the plaintiffs said property situate at No 7 Okpara Lane off No 109 Port Harcourt Rd, Aba which statutory right of occupancy is registered as No 26 at page 26 in volume 247 of the lands registry formerly at Owerri but now Umuahia.
The facts of the case are that the Appellant has been a long standing customer of the 2nd Respondent in tafita leather materials. By the Appellant’s own admission he is indebted to the 2nd Respondent to the sum of N1.5 million on trading account balance. The Appellant claimed that it was consequent on his delay to liquidate this debt that the 2nd and 4th Respondents pressurized him and made him to sign some documents which turned out to be a Sale Agreement and Power of Attorney transferring his storey building to the 2nd Respondent who also transferred the same to the 3rd Respondent.
The Appellant claimed that he could not have signed the document which purportedly transferred his storey building but for the fact that the 4th Respondent who has been his solicitor misrepresented to him that that was the only way of liquidating the money owed to the 2nd Respondent and that he was not giving the opportunity to utilize his reading glasses to read the documents before appending his signatures. In any event, that he could not have sold his property valued at N3.5 million for a consideration of N100,000.00 contained on the face of the documents.
The Respondents claimed that the transaction for the purchase of the Appellant’s storey building was distinct and separate from the indebtedness of N1.5 million on clothing materials due to the 2nd Respondent from the Appellant and on which the 2nd Respondent counter-claimed in Suit A/88/02.
That the 2nd Respondent paid for the Appellant’s storey building and secured receipts for the purchase of the property. The 4th Respondent in particular denied deceiving the Appellant and witnessed that the 2nd Respondent and the Appellant came to his office in 1999 and asked him to prepare a Sale Agreement and a Power of Attorney which he did. After preparing same, he read over to the parties who signed in his presence and their witnesses also signed. He gave copies of the unregistered documents to the parties. That after full payment of the agreed sum of N2million by the Appellant he (4th Respondent) surrendered all the title documents of the Appellant that were in his possession by agreement of the parties to the 2nd Respondent.
The Respondents claimed that the sum of N100,000 and N200,000 respectively contained in the Power of Attorneys between the Appellant and the 2nd Respondent and between 2nd and the 3rd Respondents do not represent the actual purchase amount between the parties but merely a device to avoid full assessment and payment of taxes.
Parties filed and exchange pleadings. At the trial, the plaintiff/Appellant, Chief P.M. Okoronkwo testified as PW1 and he called no other witness. The defence on the other hand called a total of three witnesses.
The 4th Respondent, Barrister Chibuike Onuoha testified as DW1. Chief Emeka Okeke, the solicitor to the 3rd Respondent testified as DW2 while the 3rd Respondent himself Emmanuel Obiagwu was DW3.
After the close of the cases of the parties and their respective addresses, the learned trial Judge delivered his judgment whereby the plaintiff’s/Appellant’s claims were dismissed, the 2nd Respondent’s counter-claim for the sum of N1.5 million in Suit No. A/88/2002 was upheld. Also, the learned trial Judge upheld the claims of the 3rd Respondent for possession and mesne profit but dismissed the 3rd Respondent’s claim for arrears of rent from the Appellant.
Dissatisfied with this judgment, the Appellant filed a Notice of appeal containing five (5) grounds of appeal before this court on 5/5/2006. The grounds of appeal devoid of their particulars are as follows:
“1. The learned trial Judge erred in law when she held that the applicant did not prove his case against the Respondent on preponderance of evidence.
2. The learned trial Judge erred in law when she failed to make a proper finding and evaluation of evidence on undue influence that the Applicant copiously pleaded in his statement of claim and evidence held out against the applicant by the 1st, 2nd and 4th Respondents in the dealing of the Appellant against the said Respondents.
3. The learned trial Judge erred in law when she failed to hold that it was wrong in law based on oral and documentary evidence from the 1st to 4th Respondents that there were advice on the 2nd and 3rd Respondents to reduce amount of consideration on the residential building of the appellant, granted without conceding that there were valid disposals of the Appellant’s said building from Appellant to 2nd Respondent and thereafter to 3rd Respondent.
4. The learned trial Judge erred in law when he accepted the evidence of DW2-a legal practitioner who settled the Writ of Summons and Statement of Claim in Suit No. A/102/2002 and went ahead to lead evidence for the plaintiff in Suit No. A/102/2002 and Suit No. A/88/2002 where the plaintiff in Suit No. A/102/2002 was a defendant.
5. The judgment is against the weight of evidence.
Appellant’s brief of argument in this appeal dated 19/10/2007 was filed on 23/4/2008 and deemed properly filed on 3/4/2012.
The brief of argument of the 1st to 4th Respondents was dated 17/12/2007, filed on 18/12/07 but refilled by order of court on 3/4/2012. Appellant’s Reply brief dated 16/4/2012 was filed on 3/05/2012 but deemed filed on 11/10/2012. Mr. P.O. Ehiogu, of learned counsel to the Appellant nominated four (4) issues for determination. They are:
(i) Whether or not the appellant proved his case on preponderance of evidence to entitle him to judgment in the court below.
(ii) Whether the Appellant proved in the court below undue influence held against him by the 1st, 2nd and 4th Respondents as copiously pleaded by the Appellant.
(iii) Whether it is not illegal and against public policy for the 1st to 4th Respondents to lead both oral and documentary evidence that there were advice on the 2nd and 4th Respondents to reduce amount of consideration, if there was a valid sale which is not conceded of the Appellant’s one storey building from Appellant to 2nd Respondent and thereafter 3rd Respondent
(iv) Whether it was proper for a legal practitioner who settled Writ of Summons and Statement of Claim in Suit No. A/102/2002 and counsel to the 3rd Respondent herein to lead evidence in the consolidated Suits in the court below.
Learned counsel for the Respondents reframed the issues as nominated by the Appellant and formulated four (4) Issues that are identical with those by the Appellant.
On Issue No. 1, learned counsel for the Appellant submitted and urged us to hold that the appellant credibly proved his case against the Respondents in the court below …on preponderance of evidence.
Counsel submitted that the learned trial Judge misdirected himself both on the facts, law and evidence by giving judgment to the 3rd Respondent in Suit No. A/102/2002. This, counsel said is more so because the learned trial Judge, without any basis for so holding awarded the 3rd Respondent all that he claimed in Suit No. A/102/2002 when the incidence of landlord and tenant was totally absent.
Counsel submitted that upon a proper and calm evaluation of evidence in the consolidated suits, the success for the Appellant’s case in Suit No. A/88/2002 meant that the 3rd Respondent’s suit and claims in Suit No. A/102/2002 would have automatically failed and ought to have been dismissed.
Counsel submitted that the issue of “fraud” was never the main plank or kernel of the Appellant’s case against the 1st to 4th Respondents. That, fraud is not directly in issue in the instant case. That, the standard of proof cast upon the Appellant must and remains preponderance of evidence and not proof beyond reasonable doubt as erroneously canvassed by counsel and accepted by the learned trial Judge.
He referred on this to the judgment of Iguh, JSC in Micheal Arowolo vs. Chief Titus. Fabiyi (2002) FWLR (Pt. 95) 296, 316 – 317.
Counsel submitted that if there was any transfer or assignment of the Appellant’s property situate at No. 7 Okpara Lane, Aba from Appellant to the 2nd Respondent (which was never conceded) the Appellant must present a witness to sign on his behalf. That, one Humphrey Uwadi stated in Exhibit “M” was never Appellant’s witness as wrongly stated by the learned trial Judge.
In any case, said Appellant’s counsel, the Appellant’s property which is subject to statutory right of occupancy granted by the Governor of the then Imo state, can never be disposed of through sale by a Power of Attorney but must be by Deed of Assignment which was not the case here. It was further submitted on behalf of the Appellant that if there was valid disposal of the Appellant’s property in favour of the 1st or 2nd Respondent, it is the Appellant who wants to dispose of his property through assignment that will ask for Governor’s consent to the proposed assignment. On this, counsel referred to the provision of Sections 20 and 22 of the Land Use Act and added that as this was not the case here, the whole dealing was tainted with fraud ab initio.
On Appellant’s Issue No. 1, learned counsel to the Respondent submitted that Appellant’s Issue No. 1 is said to be based on Grounds 1 and 5 of the Grounds of Appeal. That, Ground 5 is obviously an omnibus ground of appeal and that it is settled law that an omnibus ground of appeal cannot be the basis for challenging a specific finding. On this, counsel referred to the case of Ndiwe vs. Qkocha (1992) 7 NWLR (Pt. 252) page 129 at pg. 139 – 140 Also, that where the findings of fact of a lower court is supported by credible evidence ad is not perverse, an appellate court will not disturb such findings of fact. On this, he referred to the cases of Ogbimi vs. Niger Const. Ltd. (2006) 38 WRN 1, Ogundimu vs. Kasunmu (2006) 41 WRN Fagbenro vs. Arobadi (2006) 19 WRN 1, Newbread Org. Ltd. Vs. Erhomesele (2006) 16 WRN 1.
And, finally, on general principles, learned counsel for the Respondents submitted that a finding against which there is no appeal remains final. He referred to the cases of Olaniyan vs. Uwuag (1985) 2 NWLR (Pt. 6) Pg. 21, and Sumonu vs. Oladokun (1996) 8 NWLR (Pt.467) Pg.387.
Learned counsel for the Respondents took the opportunity in his brief to correct some factual misrepresentations in the record of appeal by the Appellant’s counsel.
For example, he submitted that contrary to the assertion in paragraph 5.03 at page 9 of the Appellant’s brief that the learned trial Judge did not grant All that the 3rd Respondent claimed in Suit No. A/102/2002
Respondent’s counsel submitted that the learned trial Judge did not grant the 3rd respondent’s claim for arrears of rent. That, at page 232 lines 13 to 15 of the record, his Lordship said:
“On the claim for arrears of rent there is no evidence of an agreement on this and I am not minded to grant same.”
Learned counsel for the Respondents also submitted that contrary to the assertion in paragraph 5.05 at page 10 of the appellant’s brief that the learned trial Judge accepted the argument of the counsel for the defendants that the standard of proof in the case was proof beyond reasonable, that the learned trial judge specifically held that the standard of proof in the instant case was on preponderance of evidence.
Respondent’s counsel submitted that the learned trial Judge appreciated the standard of proof required of the Appellant.. That, on page 216 lines 26 to 28 of the record, he noted while dealing with the alleged misrepresentation:
“The burden of proving this lies on the plaintiff and the standard of proof is on preponderance of evidence.”
Again on page 229 lines 16 to 22 of the record, the learned trial Judge came to the conclusion that:
“After a consideration of the pleadings, the evidence before the court and the submissions of learned counsel for the parties I hold that the plaintiff has failed to prove his case on the preponderance of evidence and balance of probability nor has he proved fraud beyond doubt.”
Learned counsel for the Respondent submitted that before his Lordship came to the above conclusion, he made specific findings of fact on page 217 lines 11 to 29 of the record to the effect.
“It is settled that the word “fraud” needed not be used in pleadings provided the pleadings contain full allegations of fact and circumstances with the necessary particulars leading to such an inference……The plaintiff in paragraphs 34, 35, 36, 37, 38 and 39 of the statement of claim and paragraph 4 of the statement of defence and counter claim clearly gave the facts and circumstances of this alleged fraud by setting out the misrepresentation relied upon. Fraud if proved vitiates the most solemn transaction or obligation…. Has the plaintiff therefore proved undue influence and or misrepresentation. It is the evidence before the court that the plaintiff is literate and can read and write well in English language, a fact admitted by the plaintiff…… ”
Respondent’s counsel submitted that there is no appeal against these specific findings and that the appellant cannot rely on the omnibus ground of appeal to urge this court to hold that he proved his case on preponderance of evidence.
In deciding Appellant’s Issue No. 1, the problem is not just as the Respondent’s counsel pointed out, an attempt by the learned counsel for the Appellant to attack specific findings of the trial court with the omnibus ground of appeal, but the fact that there were in fact no findings of the learned trial Judge which the Appellant sought to attack. Appellant’s Issue No. 1, is said to have covered Grounds 1 and 5 of the Notice and Grounds of Appeal. Ground 5 is the omnibus ground. Ground 1 of the Notice of Appeal together with its particulars read in full as follows:
“GROUND 1
The learned trial Judge erred in law when she held that the applicant did not prove his case against the Respondent on preponderance of evidence.
Particulars of Error
(i) The applicant led credible evidence in his case, tendered many exhibits to show that he was only trading in tafita leather materials with the 1st and 2nd Respondents of 69, 049, 044 mitres (sic) quantity valued N10,060,035.
(ii) In accordance with payment custom and practice requiring installment payments in the trade the applicant paid N9,765,456.50, and on 5th August 2001, the applicant issued a post-dated citizens Bank of Nigeria Plc Umuahia Branch Cheque which would mature and infact matured for encashment on 28th August 2001. The stamp of the said cheque was tendered in evidence in court. The 1st Respondent never returned the cheque to the applicant, nor did the applicant countermand payment of the said cheque for N1.5 million.
(iii) The learned trial Judge did not make necessary findings, applying the relevant laws and come to the logical conclusion to properly know where the scale of justice tilts. The learned trial Judge did not follow, the principle of law enunciated in Mogaji vs. Odofin (1978) 4 SC 91 at 93 to 94 and Akintola vs. Balogun (2000) 1 NWLR (Pt. 642) 532,546 – 547.
(iv) It is not the number of witnesses called in a case by a party that would determine whether a party proved his case on preponderance of evidence but the veracity and weight of such evidence that would determine whether a party proved his case on preponderance of evidence.”
If I may repeat, Appellant’s Issue No. 1 is based on ground 1 above and the omnibus ground 5 of the Ground of Appeal.
In essence, the Appellant in ground 1 and the Issue 1 sought to complain about evaluation of evidence. It is now trite that an invitation to the Court of Appeal to evaluate evidence cannot be coined in such general terms as the Appellant has done in the instant case. A ground of appeal which calls upon the appeal court to evaluate evidence must point out the specific areas in the judgment where the learned trial Judge failed in his primary task of the evaluation of evidence and the ascription of probative value to them.

The evaluation of and ascription of probative value to the evidence adduced by parties is the primary duty of the trial Judge…It is not proper for an appellate court to interfere when the duty has been properly carried out by the trial Judge. See Salibu Okino vs. Yakubu Obanebira & Ors. (1999) 12 SCNJ 27, (1999) 13 NWLR (Pt. 636) Page 535, Dan Awaza Bashaya & 7 Ors. vs. The State (1998) 4 SCNJ 202, (1998) 5 NWLR (Pt.550) Page 351.
The burden rests on the party alleging improper evaluation of evidence to identify or specify the evidence improperly evaluated and to show that if the error had been corrected, the conclusion reached would have been different. See Richard Igago vs. The State (1999) 12 SCNJ 140 (1999) 6 NWLR (Pt.608) Page 568, Alhaja Sobalaje Eleran & Ors. vs. Dr. Ajiku Aderonpe (2008) 11 NWLR (Pt. 1097) 50 at 69.
Appellant’s grounds 1 and 5 on which Issue No. 1 is based indeed complained of nothing. The reason why an appeal court cannot be asked to evaluate evidence at large is that it is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to inquire into disputes, but to inquire into ways the disputes have been tried and settled. See Karibi-Whyte, JSC in Ajadi vs. Okenihun (1985) 1 NWLR (Pt. 3) 484 at 492.
Indeed, the above appears to be a re-echo of the immortal words of Hurley C.J. sitting at the High Court of Northern Nigeria in the case of Igboke Oroke vs. Chukwu Ede (1964) …..N.N.L.R. 118 at pages 119 – 120:-
“It is the business of a trial court to decide disputes by trying cases. It is not the business of an appeal court to re-open disputes by trying cases again, an appeal court’s duty is to see whether trial courts have used correct procedure to arrive at the right decision. An appeal court does not inquire into dispute, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial court and not in the appeal court, each party must take the whole of his case in the trial court and call his witnesses there, he should not be allowed to improve on his case in the appeal court……”
See also Onu JSC in the case of Onyia Nwagwu Ngwu & Others vs. Ani Ozougwu and Another. [1997] 11 S.C.N.J. 1 at 11.
In-spite of the above observations I do agree with the learned counsel for the Respondents that the learned trial Judge carefully evaluated the evidence offered by the parties and in particular considered that the payment receipts Exhibits K1 and K2 show evidence of an agreement between the Appellant and the 2nd Respondent concerning the sale of the property in question. Thus, the court held at page 221 of the record:
“It is therefore clear to this court that exhibits K1 and K2 show evidence of an agreement between the plaintiff and the second defendant concerning the sale of the property in question, the same could also be said of exhibit L the unregistered agreement as it is well known that an unregistered registerable instrument is proof of an equitable interest and or payment of money. See Akufe Efemi vs. Ogbomienor (2004) All FWLR (Pt. 224) 2061, though the court has placed little or no reliance on that document.”
On the same page 221 and in the same breadth, the learned trial Judge continued:
“From the evidence before the court particularly exhibits K1 and K2 it is clear that the plaintiff had had a prior discussion with the 2nd defendant over the sale of the property situate at 85 E Port Harcourt Rd Aba otherwise known as No. 7 Okpara Lane Aba and to that effect he issued those receipts for part payment this coupled with the evidence of DW1 that both the plaintiff and the 2nd defendant instructed him to prepare the documents and that the plaintiff was aware of what he signed lends credence to the fact that the plaintiff was aware of his reason for going to the office of the 4th defendant and I find as a fact that the plaintiff knew what he was signing.. . … ..”
The learned trial Judge concluded that portion of the Judgment as follows:
“…..that in furtherance of the money paid to him he went to the office of the 4th defendant in company of the 2nd defendant to execute exhibit M knowing fully well what he was doing. I do not believe that he was misled in any way, he is literate and of full age and capacity he is said to be able to read and write very well a fact not denied by him, there is nothing to suggest he could not read the document (because he was not with his glasses) as even during cross-examination he was able to identify documents even though not in possession of his glasses…. ….”
It was with the same clarity of mind of the learned trial Judge which bore the above passage that led the court below to attend carefully to matters of proof by applying the principle of severance to separate the Appellants requirement to prove alleged misrepresentation and fraud as contained in paragraphs 34, 35, 36, 37, 38 and 39 of the statement of claim and paragraph 4 of the reply to the statement of defence and counter claim which clearly gave the facts and circumstances of the alleged fraud and misrepresentation from the proof of the other paragraphs of the Appellant’s pleadings and indeed the entire claims of the Appellant.
Thus, at page 229 Lines 16 to 22 of the record, the court below wisely concluded on the matter of proof as follows:
“After a consideration of the pleadings, the evidence before the court and the submissions of learned counsel for the parties I hold that the plaintiff has failed to prove his case on the preponderance of evidence and balance of probability nor has he proved fraud beyond doubt….”
In this respect, it would be recalled that the Supreme Court in Omoboriowo vs Ajasin (1984) All N L.R 105 at 110 per Bello JSC (as he then was) drew a distinction between a case where it is necessary to prove the allegation of crime beyond reasonable doubt and another where such alteration even if made does not form the bedrock of the case as to entail the necessity to prove it beyond doubt. The learned JSC said:
“Again, in my reasons for judgment in Nwobodo vs. Onoh, (supra), I considered fully the scope of Section 137 (1) of the Evidence Act and its application to the pleadings of a particular case as qualified by the principle of severance of pleadings as demonstrated in Nwankere vs. Adewunmi (1967) N.M.L.R. 45 at 48 and Arab Bank, vs. Ross (1952) Q.B.D. 216 at 229.
In the case on hand, at the close of his case during the hearing of the petition, the petitioner abandoned the allegations of crimes. It follows therefore that in so far as the petition was founded on those allegations, it must be dismissed. However, if the averments alleging crimes against the 2nd respondent were excised from the petition, there still remained in the body of the petition sufficient averments without putting directly in issue the commission of a crime by a party to sustain the petition.”
Finally, on Appellant’s Issue No. 1, I need not state the obvious that it is an elementary principle of law that an appellate court will not interfere with findings of fact made by the trial court which are supported by evidence except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of evidence or the findings of fact are perverse in the sense that they do not flow from the evidence accepted by it. See Woluchem vs. Gudi [1981] 5 S.C. 291 at 295, and 326, Okpiri vs. Jonah (1961) All N.L.R. 102 at 104., Alli vs. Alesinloye (2000) 4 S.C.N.J 264 at 293.
None of the circumstances enumerated above exists in the present case to warrant any interference by this court.
Issue No. 1 is decided against the Appellant.
The gravamen of Appellant’s Issue No. 2, is again that the learned trial Judge should have evaluated evidence on the documents (prepared) and given to Appellant to sign without the benefit of another counsel and a witness which error occasioned a miscarriage of justice to the Appellant.
On this, Appellant’s counsel submitted that the Appellant pleaded undue influence in paragraphs 35, 37, 38, 39, 59, 63(c) 7(f) 7(g) 7(J) and 8 of his Reply to the statement of defence of the 1st, 2nd and 4th defendants and counter-claim of the 1st defendant. Also, that the Appellant pleaded undue influence and misrepresentation in the Appellant’s paragraph 6 and 7 of his statement of defence in Suit No. A/102/2002.
Learned counsel for the Appellant referred to the cases of Albert Afegbai vs. A-G, Edo State & Anor. (2001) 7 – 9 NSCQR 549 at 578 – 579, West African Breweries Ltd. Vs. Savannah Ventures Ltd. & 25 Ors. (2002) FWLR (Pt. 112) 52 at 74 – 75 and submitted that there were glaring traces of undue influence and fraudulent misrepresentation held out on the Appellant by the 1st, 2nd and 4th Respondents, when the Appellant relied on the legal advice of the 4th Respondent and had not the benefit of another counsel.
In response to Appellant’s Issue No. 1, learned counsel to the Respondents submitted that the court below took time to examine the issue of undue influence and was satisfied that there was no undue influence or misrepresentation. He submitted that pleadings however copious cannot take the place of legal evidence.
Counsel referred to the cases of New Oro. Ltd. Vs. Erhomosele (2006) 16 WRN 1 at 63 and Miss Ezeanah vs. Alhaji Atta (2004) 17 WRN 1 and submitted that in the instant case the so called copious pleadings of the Appellant on undue influence and misrepresentation by the Respondents do not translate to legal evidence and therefore the court below was satisfied that the Appellant did not prove undue influence or misrepresentation.
I think it is rather unfortunate that Appellant’s Issue No. 2 based on Ground 2 of the Notice of Appeal suffered the same vice as was pointed out in respect of Issue No. 1.
Appellant’s Issue No. 2 as it was the case with Issue No. 1 complained about evaluation of evidence of undue influence without categorizing any portion of the judgment in which the learned trial Judge failed to evaluate. As I said earlier on in respect of Issue No. 1, this position is not acceptable as an appellate court cannot be called upon to re-try the dispute between the parties. The attempt by the learned counsel for the Appellant in this case to make this court to re-try the dispute between the parties has always been frowned at by the courts, because it is not the business of appellate courts to try disputes between the parties but that of courts of trial. See Ngwu vs. Ozougwu (supra).
For example, Ground 2 of the Notice of Appeal together with its particulars read as follows:
GROUND 2
The learned judge erred in law when she failed to make a proper finding and evaluation of evidence on undue influence that the Applicant copiously pleaded in his statement of claim and evidence held out against the applicant by the 1st, 2nd and 4th Respondents in the dealing of the Appellant against the said Respondents.
Particulars of Error
“(i) The documents which the Appellant was said to have endorsed were not sent to the 4th Respondent by the Appellant with instructions to the 4th by the appellant to prepare upon payment of professional fees by the Appellant to the 4th Respondent.
(i) The said documents had already been prepared by the 4th Respondent with instructions from the 2nd Respondent unknown to the Appellant.
(ii) There is no way the Appellant will sell his residential building where he resides with his large family without the decision freely coming from the appellant’s mind.
(iii) It is in evidence both oral and documentary that the Appellant(sic) had been also the Appellant’s solicitor and Christian brother for many years both worshiping in the same church.
(iv) It is evidence in the court below that there was abuse and misuse of confidence which the Appellant reposed on the 2nd and 4th Respondents who put terrible pressure on the Appellant to endorse documents relating to the Appellant’s residential building unknown to the Appellant, Appellant had no witness to endorse for him on such vital documents, relating to real property, nor was the Appellant given copies of documents he endorsed innocently on the persuasion of the 4th Respondent in the 4th Respondent’s office.
(v) Deed of assignment which the Appellant was said to have executed in the office of the 4th respondent cannot be executed without the consent of the Governor of Abia State. It is the Appellant that ask for the Governor’s consent.”
It would be seen in all of the above, that none of the particulars of error nominated by the Appellant really made out any complaint of a failure or error against the judgment of the court below. As I said earlier on, a ground of appeal on evaluation of evidence which does not specify the complaint or which as in this case does not make out any complaint cannot succeed. It is trite law that a ground of appeal must arise from the judgment and should constitute a challenge to the ratio of the decision and not just formulated in the abstract. See Egbe vs. Alhaji (1990) NWLR (Pt. 128) 546 at 590.
Where, as in this case a ground of appeal has not captured the decision of the court which agitated the mind of the Appellant to seek for a review and overturn the decision, such a ground of appeal cannot be said to be competent. See Merchantile Bank Nigeria Plc. Anor. vs. Linus Nwobodo (2005) 7 S.C.N.J 569 at 573.
Beyond this, the learned trial Judge in the instant case took time to examine the pleadings and evidence of the Appellant on undue influence and misrepresentations. From pages 216 – 222 of the record the learned trial Judge found that the Appellant is literate and admitted the purchase receipts Exhibits K1 and K2. That he never denied signing Exhibits K1, K2, and M which were held to effect on a purchase Agreement between the appellant and the 2nd Respondent on the property in question. It was in those circumstances that the learned trial Judge held that the Appellant did not discharge the burden of proving undue influence on a balance of probabilities.
See, Buhari vs. Obasanjo (2005) All FWLR (Pt. 258) 1604, Mogaji vs. Odofin (1978) 4 SC 91.
Issue No. 2 is resolved against the Appellant.
On Issue No. 3, learned counsel for the Appellant submitted that it is against public policy for DW1 and DW2 who are practicing lawyers to testify in open court and admit under cross-examination that they were aware of advice given to 2nd and 3rd Respondents to reduce amount of consideration on exhibit K1, K2, 01 – 04, granted without conceding that there was a sale or disposition of the Appellant’s property in favour of the 2nd Respondent and thereafter to the 3rd Respondent.
Counsel submitted that the giving or accepting of such advice to the knowledge of DW1 and DW2 make the entire dealing null and void.
Counsel submitted that the advice that was given to the 2nd Respondent to the knowledge of DW1 is contrary to Rules of Professional Conduct in the legal profession and that the reduction of amount of consideration of legally prepared documents is not only a civil derelict but also a criminal offence, because tax evasion is a criminal offence.
Learned counsel for the Appellant submitted that in spite of these illegalities, the learned trial judge held that it is a true position and practice of lawyers to reduce amount of consideration in conveyancing documents.
This holding of the learned trial Judge, said counsel, makes his judgment perverse and occasioned miscarriage of justice against the Appellant.
He referred to the case of Ebe Ebe Uka & Anor. Vs. Chief Kalu Okorie Irolo & 5 Ors. (2002) FWLR (Pt. 127) 1167, 1199.
Learned counsel for the Respondent on the other hand submitted in respect of Appellant’s Issue No. 3 that even though the court below itself condemned the practice of lawyers advising clients to reduce purchase price in a document so as to evade the payment of necessary taxes, as being highly unprofessional but could not see how the practice could be dubbed as illegal and against public policy.
Counsel submitted that the Respondents were bound to lead evidence in terms of paragraph 30 of the joint statement of defence of the 1st, 2nd and 4th Respondents. To do otherwise, he said would mean that the facts pleaded in the said paragraph 30 of the joint statement of defence would have been deemed abandoned.
In deciding Issue No. 3, it is somewhat difficult for me to understand how the seemingly unprofessional conduct of DW2 and DW3 who were witnesses in the court below but at the same time legal practitioners could either render the trial of a case a nullity or in any way affect the purchase of property of the Appellant by the 2nd defendant which constitutes the kernel of the case that was before the court below.
I do of course join the learned trial Judge in saying that the practice whereby lawyers advice clients to reduce the purchase amount in conveyances and such other documents is highly unprofessional. I would even go further to say that such practice is against public policy.
However, I cannot fathom how the evidence of DW1 and DW2 to the effect that the purchase amount of the appellant’s property which was N2 million from the 2nd Respondent to the Appellant and N2.4 million from the 3rd Respondent to the 2nd Respondent but reduced for tax purposes to N100,000 and N200,000 respectively could diminish from the intention of the parties to the transaction or the propriety of the purchase of the property from the Appellant by the 2nd Respondent and thereafter to the 3rd Respondent.
Issue No. 3 is decided against the Appellant.
The gist of Appellant’s Issue No. 4 is that it is professionally unethical for DW2 who settled the writ of summons and statement of claim in Suit No. A/102/2002 and statement of defence in Suit No. A/88/2002 to lead evidence for the 3rd Respondent in both Suits.
Counsel referred to the case of Daniel Garan vs. Staff Olomu (2001) FWLR (Pt. 41) 1859, 1869 and submitted that a lawyer who settled pleadings and appeared as counsel to one of the parties in the court below, should not testify for that party for whom he has been appearing as counsel. Counsel urged us to expunge the evidence of DW2.
Learned counsel for the Respondent on the other hand submitted in respect of Issue No. 4, that DW2 was a competent witness and that the learned trial Judge pointed out that his evidence was on his actions in his capacity as the 3rd Respondent’s solicitor.
It seems to me that the learned counsel for the Appellant tends to mix up one or two things in relation to Issue No. 4. First, the desirability or otherwise of a counsel giving evidence for his client is quite different from the competence of a counsel to give evidence for his client.
In the instant case, the DW2 was a competent witness and for all intent and purposes the learned trial Judge was not in error to have acted on his evidence which was relevant to the case. Moreover, there is an exception to the general rule of professional conduct or ethics of the legal profession that a counsel should not act as counsel and witness in the same case.
Rule 19 of the Rules of Professional Conduct in the legal profession does not apply where the lawyer witnesses “to merely formal matters such as identification or custody of a document or the like…”
Rule 19 of the Rules of Professional Conduct in the Legal Profession reads in full;
“When a lawyer knows prior to trial that he will be a necessary witness except as to merely formal matters such as identification or custody of a document or the like neither he nor his firm should conduct the trial. If during the trial he discovers the ends of justice will require his testimony he should from that point on it feasible and not prejudicial to his client’s case leave further conduct of the trial to other counsel. If circumstances do not permit withdrawal from the conduct of the trial, he should not argue the credibility of his own testimony.
The primary purpose of Rule 19 and similar Rules of the Rules of Professional Conduct in the Legal Profession is to protect the integrity of the profession and its members from castigations, aspersions, insults and the like. It is thus not desirable for a counsel to double as witness in a matter in which he is handling in court. See, Daniel Garan vs. Staff Olomu (supra)
However, there is nothing in the provision of Rule 19 which suggests that the consequence of disobedience to the Rule, is that such piece or evidence from a competent counsel/witness must be expunged from the record of the court.
In any event, as far as the present case is concerned I agree with the learned trial Judge that the DW2 only gave evidence as to formal matters for the 3rd Respondent in Suit No. A/88/2002.
Issue No. 4 is also resolved against the Appellant.
Having resolved the four (4) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The Appellant shall pay a cost of N50,000.00 in favour of each of the 2nd, 3rd, and 4th Respondents.

UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have had the advantage of a preview of the judgment of my learned brother, M. A. Owoade, JCA just delivered.
My learned brother considered all the issues in this appeal and accordingly resolved them against the Appellant. I entirely agree with his reasoning and conclusion that the appeal is devoid of merit which I adopt as mine in dismissing the appeal.
This appeal is also dismissed by me. I endorsed the consequential order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, M.A. Owoade, JCA gave me the privilege to read before now, the judgment just delivered by him.
My learned brother painstakingly considered all the pertinent issues that arose for determination in this appeal, and admirably resolved same against the Appellant, I agree entirely with his reasoning and conclusion thereon. There is nothing useful for me to add. Accordingly, I also adjudge this appeal to have no merit and should be and is hereby dismissed.
I abide by the order on costs.

Appearances

N.E. Anyasinti, Esq.For Appellant

AND

B.N. Onuoha Esq.For Respondent