AHEMBE ACHO V. IORYINA UKAGYE
(2013)LCN/6265(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of June, 2013
CA/J/159/2002
RATIO
EVIDENCE: CONSIDERATION OF THE WEIGHT TO BE ATTACHED TO EVIDENCE ADMITTED
The trite law is that, even where a document has been admitted in evidence the weight to be attached to it is an entirely different consideration. Such considerations such as whether it was validly admitted or whether the document was authentic and whether the facts contained therein constitute and satisfy the law on the existence or creation of the right(s) asserted or denied are the essentials for the attachment of weight thereto.PER MOHAMMED A. DANJUMA J.C.A.
BURDEN OF PROOF: PROOF OF ASSERTIONS
The starting point for the appreciation of the issue No. 1 and the opposing arguments of counsel in respect thereto is the clear appreciation of the fact that the law is settled and crystal clear in our adversarial system of adjudication, a party who asserts has the onus of proof. The burden is on him to prove his case, else he will lose his claim as it is said – His case will fail.
See, ECHI & 4 ORS. v. JOSEPH NNAMANI & 5 ORS. (2005) 5 SCNJ 15 pars. 35-40 at 164; JUSTINA PAUL V. EMMANUEL OZOKPO (1995) 4 SCNJ 199 at 136 Par. 20.
In PAUL JUSTINA vs. EMMANUEAL OZOKPO (supra) it was held by the Supreme Court thus:-
“In a claim of declaration of title to land, the onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. He must rely on the on the strength of his case and not on the weakness of the Defendant’s case. The onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant”.
See also BUHARI & 10 ORS V. CHIEF OLUSEGUN A. OBASANJO & 264 ORS (2005) 7 SCNJ AT 47.PER MOHAMMED A. DANJUMA J.C.A.
JUSTICES:
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
AHEMBE ACHO – Appellant(s)
AND
IORYINA UKAGYE – Respondent(s)
MOHAMMED A. DANJUMA J.C.A.: (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Benue State sitting in its appellate capacity at Vandeikya. The Judgment is contained in Suit No. VHC/2A/2000 and was delivered on 22nd March 2002 and is contained on pages 42-50 of the Record of Appeal.
Before I proceed, it is imperative to state that the Appellant had sued the Respondent before the trial Area Court Grade II, Korinya claiming a declaration of title and perpetual injunction restraining further trespass to a piece of farmland, situate at Mbamondu, Mbakule (see page 1 of the record. The Respondent counter claimed title to the same piece of land which he claimed was situate at Mbager, Magile (page 2 of record).
The trial Area court heard evidence and visited the land and decreed title in favour of the Appellant and dismissed the counter claim as not proved.
The evidence of the parties is at pages 7 – 21 while the notes of the inspection at locus in quo (of the land) are on pages 22-23. The Respondent appealed and the decision was set aside.
This appeal is against the decision of the High court sitting at Vandeikya (on its appellate Jurisdiction) setting aside the trial court’s Judgment and entering Judgment on the counter claim.
Now, the present appeal stems from the dissatisfaction of the Appellant.
By leave of the court below granted on 10/5/2003 (page 52) the Notice and grounds of appeal filed, however contained 8 grounds and are undated. See, the records.
By motion dated 21/6/2012 and filed same date by the Respondent and granted by this court, supplementary records (which is in the record) were transmitted.
The Appellant had also futilely tried to bring in a supplementary record, but had withdrawn the application for one reason or the other.
The Lower Court had held in the concluding part of the Judgment as follows: –
“For all we have stated in this Judgment, the decision of the trial court cannot stand. This appeal succeeds in its entirety and the Judgment and orders of the trial Grade II Area Court (now Grade I) Korinya are hereby set aside. The counter claim of the Defendant/Appellant was proved before the trial court. The counter claim is hereby upheld’.
At the hearing, the Appellant formulated 2 issues for determination to wit: –
1) Whether the decision of the trial Area court Korinya was not supported by evidence and was so perverse that the appellate High Court was justified in setting aside that decision, and in proceeding to enter Judgment for the Respondent on his counter claim (covered by grounds 3, 4, 5 and 7 of the appeal).
Issue No- 2 whether having regards to the totality of the evidence adduced at the trial Area Court Korinya, the Appellate High Court was right in coming to the conclusion that exhibit ‘A’ constituted estopel against the claims of the Appellant at the trial Area Court (Grounds 3 and 6).
On his part, the Respondent filed a Notice of preliminary objection by Notice dated and filed on 25/10/2002.
The Grounds of the Objection are as follows: –
“That the entire appeal is incompetent, as the undated Notice of Appeal but filed on 27th day of May, 2002 and containing eight (8) grounds of appeal which raise mixed law and fact, was filed without leave, either of the court below or of this court contrary to section 242 of the constitution of the Federal Republic of Nigeria”.
2) That the grounds of Appeal appearing on the Notice of Appeal containing six grounds marked as annexture 2 exhibited to the affidavit in support of application by motion No. VHC/20M/2002 in respect of which leave was granted by the court below to appeal on 10th May appearing at page 52 of the record, was abandoned and not filed as required by section 242 of the constitution of the Federal Republic of Nigeria, 1999.
3) That Grounds 1, 2 and 8 of the purported Notice of Appeal filed on 27th May, 2002, in this case are deemed abandoned, no issue having been distilled there from.
4) That Ground 3 of the purported Notice of Appeal filed on 27th May, 2002, and the issues arising there from as formulated by the Appellant be struck out.
That Grounds 4, 5, 7 of the purported Notice of Appeal filed on 27th May, 2002 be struck out and the issues arising as the particulars in support are mere arguments and narratives.
That the entire appeal be struck out. Respondent also filed the Respondent’s Brief on the said 25/10/2002 and raised the said objection and address therein. Thereafter 2 issues were formulated in the same way as done by the Appellant, to wit:
(1) Whether the Appellate High Court was right in setting aside the decision of the trial Area Court and entering Judgment for the Defendant/Counter Claimant/Respondent.
Issue 2 – Whether the Appellate High Court was right, upon the evidence led at the trial Court to have held that Exhibit ‘A’ constituted estoppel against the claims of the Appellant at the trial Area Court. Grounds 3 and 6 (mixed law and facts).
The Appellant filed a reply Brief to the preliminary objection raised and distinctly. It is dated and filed on 25/11/02. The parties’ learned counsel adopted their said Briefs on the objection on 6/3/13 before proceeding to argue the appeal on its merit.
Adumbrating on his preliminary objection as raised, learned Respondent’s counsel, B. I. Hom of Bernard Hom and Co. submitted that the Notice of Appeal containing eight grounds of appeal as found on pages 64, 65, 66 and 67 be struck out as incompetent as it was not the same one upon which leave was granted by the court below on 10th May, 2002 and evident at page 52 of the records. It was further contended that leave was granted to the Appellant to appeal to the Court of Appeal upon a Notice exhibited at pages 60-63 of the records as amended (Rather as transmitted as additional records). That the Notice for which leave was granted contains 6 grounds. That the new grounds of appeal at page 64-67 had no leave granted in respect thereto to warrant its filing and reliance thereon; that those grounds violate S.241 and 242 of (1998) 12 SCNJ 213 at p. 225 referred.
Also submitted that to further worsen the incompetence of the Notice and Grounds of Appeal filed and being relied on, Grounds 1, 2 and 8 of the purported Notice/Grounds of appeal have no issues distilled there from. Counsel urged that it is deemed abandoned. That they should be struck out.
The following cases were cited in aid: –
DAVID OGUNLADE V. EZEKIEL ADELEYE (1992) 10 SCNJ 58 at 63. UZOECHI v. ALINNOR (2000) FWLR (pt. 27) p. 2010: AKPABUYO L. G. v. DUKE (2001) FWLR (pt. 53) 118 at p. 129.
Thirdly, that Grounds 3 is recurrent in more than one issue is wrong by Rules and Law.
Refers to page 2 of the Appellant’s Brief. UKPO v. ADEDE (2001) FWLR (pt. 77) 850 at 867: AKPABUYO vs. DUKE Supra referred.
Fourthly, it was contended that Grounds 4, 5, 6 and 7 on the purported Notice of Appeal are incompetent. This is in addition to the facts that the particulars in respect thereto are mere narratives and/or arguments, and thus contrary to order 3 Rule 2, 2(2) of the Court of Appeal Rules 1981 (then applicable).
That the said grounds should be struck out vide order 3 Rule 2(7) of the said Court of Appeal Rules.
Learned counsel also relied on the decision in GLOBE FISHING INDUSTRIES LTD. & ORS V. CHIEF FOLARIN COKER (1990) 11 SCNJ 56 at 84.
In reply to the objection raised and argued as above, Appellant’s learned counsel, P. A. Mbahom, Esq. by his Appellant’s Reply Brief submitted that the Appellant was granted leave to appeal by the court below upon the 6 grounds of appeal as referred to by the Respondent’s counsel.
That the filing of the Grounds was in order as it was filed within time and was a mere amendment to the copy of the Grounds of appeal that was annexed to the motion for leave to appeal.
In the words of Counsel,
“Pursuant to the leave granted by the court below, and while still within the statutory period for filing the appeal, the appellant’s solicitor saw the need to amend the proposed grounds of appeal that were exhibited to the motion seeking leave to appeal. This amendment consisted of merely adding 7 and 8 to exactly the same Grounds contained in proposed Notice exhibited to the motion seeking leave”.
That additional grounds of appeal may be filed without leave once leave is granted to file an appeal. That amendment can be made to the grounds upon which leave was granted to file without the necessity of a further leave, so long as it was filed within time allowed to file the Appeal. That the situation is similar to filing additional grounds of appeal within time if appeal is as of right.
That no leave was required and that the contention of the Respondent was misconceived on the specific objection that the particulars to the Grounds are narrative and argumentative, learned counsel countered that B. I. Hon, Esq. of Counsel was equally guilty as shown in his own Notice and Grounds at the court below at pages 35, 36, 37, 38 and 39 of the records.
That the Grounds are not vague or imprecise and that particulars are clear and has given the Respondent sufficient Notice of the complaint and that more so, the issues formulated by Respondent are same with Appellant. That the court should discountenance the objection as there was no ambiguity, imprecision, ambiguity or specificity and the other side was not left in doubt. ADEROUNMU v. OLOWU (2000) 2 & 3 SCNJ 180 at 190-191 refers.
On the further objection that 2 issues cannot be distilled from one ground of appeal. Appellant’s counsel conceded that it is so and that it was an error on his part to have included ground 3 to issue 2 when ground 6 could sustain that issue.
Counsel, as if by an application within his submission in reply, gave Notice that he will at the hearing seek leave to amend issue No. 2 by deleting the word “Grounds 3”. That the issue is already covered by Ground 6.
Finally, the Appellant urged that the preliminary objection be dismissed because;
(a) Leave was sought and had before filing the appeal and therefore S.241 (2) 1999 Constitution of Nigeria was satisfied.
(b) The particulars supplied for each ground of Appeal were proper in law and the grounds of appeal were precise and clear.
(c) Issue No. 2 is anchored on ground 6 of the Appeal and is competent.
Before I proceed to the arguments on the consideration of the merit of the issues formulated and as argued by the respective parties, I need to first consider and dispose of the preliminary objection. This is because an objection to the competence of an appeal is a threshold issue and indeed touches on the jurisdiction of the adjudicating Tribunal or Court. See, DR. TUNJI BRAITHWAITE V. SKYE BANK, PLC (2012) 12 SC pt. 1, page 1; MADUKOLA v. NKEMDILIM: MOHAMMED MAIKIDA V. A. D. OGUNMOLA (2006) 6 SC 147; (2006) 13 NWLR PT. 997. If a matter is not competently before a court, an appeal is invalid or in competent or nonexistent, then of course the originating process by which the vires of the court can be activated is wanting.
In that instance there is no valid appeal to adjudicate upon and the proper order to make will be to strike out the so-called appeal. DR. TUNJI BRAITHWAITE v. SKYE BANK, PLC (202012) 12 SC PT. 1, pg. 1; There is no doubt that leave was granted to the Appellant to file his Notice and Grounds of Appeal.
This is as expected under S. 241, and 242 of the 1999 constitution, the decision appealed from being a final decision of the High Court sitting in its appellate capacity.
Leave to appeal was granted.
The Appellant filed a different Notice of Appeal other than the intended one that was annexed to the motion for leave granted. This much he admits by the submission of his counsel. That it was that annexture that made the motion competent. Its grant was therefore predicated on the filing of a Notice of Appeal of the replica that formed the basis of the grant.
Appellant’s counsel had argued that the filing of a different Notice was an amendment made by the addition of 2 additional grounds, to wit 7 and 8 to the intended and authentic Notice and grounds of appeal.
This submission amounts to a contradiction to the admission that it was an error.
Indeed it amounts to a two-face approach to adjudication when counsel had stated that it was an amendment. Even then, can an amendment be made suo motu or unilaterally by a party without leave of court? No. Amendments or any other alteration of a process to be relied upon in court can only be made upon an application and grant of same.
To proceed, as contradictorily submitted by the Appellant’s counsel, will constitute a party into a knight errant or horse wildly galloping and making the process of the courts uncertain and speculative. That would lead to abuse of court process, protraction in litigation, etc.
However, the process for which leave was granted contains 5 grounds of appeal. The Notice is as exhibited in the application for leave to file supplementary Records and paged 60-63 of the records.
I agree that the valid Notice of appeal filed pursuant to the leave that was granted is not that 8-ground Notice. Consequently the objection that there was no appeal filed in that respect has no merit.
Even if it is for the purposes of argument, the so-called “amended Notice of Appeal consisting of 8 grounds of Appeal was filed without leave. It ought be struck out as it consists of mixed law and fact. See, GODWIN v. C.A.C. (1998) 12 SCNJ 213 at 225.
Grounds 1, 2 and 8 have clearly been abandoned as no issues have been distilled therefrom assuming they were contained in a valid Notice of Appeal (which I do not concede).
Issues 1 and 2 were formulated from Grounds 3 making them invalid as the law is that not more than one issue shall be formulated from any one Ground. That being so, the 2 issues are incompetent and ought to be struck out together with the ground from whence they were distilled.
I have also perused all the particulars of error given or stated under the respective grounds of the purported Notice of Appeal and observed that they are surely argumentative and or narrative.
However, I agree with the learned counsel to the Appellant that no miscarriage of Justice has been occasioned as the Respondent was in no way misled by this fact. As rightly submitted by the Respondent, the purport was appreciated and a response by way of Respondent’s Issues in like manner as the Appellant’s were formulated and argued.
On the whole, however, I am of the view that if a clear copy of the Notice and Grounds of Appeal annexed as exhibit to motion to transmit additional record was filed, it would constitute the regularization of the process of appeal; in accordance with the leave granted, motion to transmit record, having been granted.
Although I have not been told of a deeming order if any that was made in respect of the exhibits which included the Notice and Grounds of Appeal admitted to be the authentic one, I hold that the presumption is that the Notice and Grounds are the properly transmitted and therefore the filed Notice and Grounds of appeal in this matter.
On the whole, I decline to accede to the objection raised, and the prayer to strike out the appeal.
Now, to the merit of the Appeal.
Arguing his Issue No. 1, Appellant’s learned counsel submitted that in considering whether to interfere with the decision of a lower court such as the Grade II Area court, the evidence led at the trial had to be scrutinised and that that would include the finding and conclusions of the lower court.
It was further submitted that an interference can only be made where (a) the facts found by the trial court are wrongly applied to the circumstances of the case or
(b) where the inference drawn from those facts are erroneous or
(c) Where the findings of facts are not reasonably justified or supported
by the evidence adduced; MAJA v. STOCCO (1968) 1 ALL NLR 141 at 149: ODONRI V. OJO-OJAGIE 9 (1994) 6 SCNJ (PT. 2) 192 at 2005.
That decisions of Native/Area Courts are allowed greater latitude and their decisions upturned only where they are not supported by evidence and also occasion miscarriage of Justice. See also S. 51 of the Area Court of Benue Plateau State applicable to Benue State.
It was submitted that the trial court having taken evidence and visited the locus in quo, had held that the Appellant had proved his case by cogent evidence of acts of long possession and ownership. Page 30 lines 13-18 – That at page 33, the trial court had found the Appellant to be holding a better title than the Respondent.
That the trial Area Court disbelieved the Respondent that the Appellant was settled on the land by the Respondent’s ancestors. This he did by referring to page 30 lines 22 to 23 wherein the court stated thus: –
“It is very difficult to state that the Plaintiff/Defendant is a squatter on the land.”
It was further pointed out that there was a finding by the trial court that the Respondent had no compound on the land contrary to his evidence. That this was based upon the inspection at the locus in quo. Furthermore, there was the confirmation by the trial court that there was no pond on the land contrary to the testimony of the plaintiff/Defendant/Respondent. That the evidence on economic trees and farms belonging to the Respondent on the disputed land was disbelieved just as that relating to the existence of some named boundary men. The court found that the so-called boundary men were over a kilometer away from the disputed land.
Learned counsel referred to the observation of the trial court on Exhibit ‘A’ – which was the report of the customary arbitration between the parties to the effect that it was a travesty as rather than award the land to the party found entitled, it was instead partitioned between them. Counsel contended that the finding of facts was not challenged at the High Court. Learned counsel pointed out that the lower court and High Court set aside the decision of the trial Area Court on two main reasons which according to counsel, were wrong. Firstly – that the High Court took into consideration an issue which was not crucial or relevant in arriving at the decision in setting aside the trial court Judgment and granting the counter claim of the Defendant, to wit the question of the sub-kindred where the land is located. (Was said not to have been decided by the trial court). That determination was considered crucial by the lower court.
Page 44 line 12 and page 45 lines 10-14 referred.
Secondly that the lower court gave as his second reason the fact in its belief that the Area Court was beclouded by its personal feelings, sentiments, speculation and imagination of its observations at the locu in quo. See page 46 line 32 and page 47 lines 1- 4.
It was contended that both parties founded their respective claims of title on traditional history and acts of possession and ownership in proof of their claim and counter claim.
That none rested his case on the basis of the location of the land in any area occupied by particular sub-kindred. That the lower court wrongly so held as none of the parties adduced evidence indicating the number or the limits and boundaries of the sub-kindreds within Mbaakule Kindred to which both Parties belong.
That, in any case the location of land within particular sub-kindred is not one of the ways of establishing title to land.
IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227 (1975) NMLR 200 at 210-211.
That finding support in the evidence of PW1 – The Appellant in cross-examination that Ayoo Boi and Hembbaor Ufun were members of a large family that settled on the disputed land but have since left to a different site meant that the land did not belong to Appellant’s kindred was a wrong or per verse and unsupported finding that had no basis. This, the Appellant had testified that those duo were members of a large family and had houses and farms on the disputed land before they migrated. That the movement of two (2) members of a family was not proof that the land did not belong to their family. That the lower court was clearly wrong in ignoring the findings of facts of the trial Area Court, Korinya and in relying on the extract on 2013 issue of the sub-kindred in which the land is located, in setting aside the Judgment of the trial Area Court and in entering Judgment for the Respondent who was disbelieved by the trial Area Court on the counter claim. That in spite of all the findings of facts made against the Respondent by the trial Area Court, there was no basis to enter Judgment for him; learned counsel further contended that even if the trial Area Court had approached the traditional evidence led wrongly, a re-trial was what ought to have been ordered and not Judgment in favour of another party. SANUSI v. OYEGUN (1992) 4 SCNJ 177 at 186. On the reason of sentiments, speculations, etc, proffered by the lower court against the Area Court, it was submitted that it had no support from the Notes on the visit to locus in quo and there was no challenge to what transpired. That the age estimation of the Melina trees, etc. as estimated by the Area Court was a proper exercise to reflect the fact of long duration of occupation by the owner there. That this isolated act of estimation, did not warrant a reversal of the Judgment as there was no complain at the High Court that the estimation was false, or a product of sentiment.
In any case, it was further submitted that the entirety of the procedure was that of an Area or Native Court which had not occasioned any miscarriage of Justice. KUNDU v. UDOM (1990) 1 NMLR (pt. 127) 421 at Submitting finally on this issue No. 1, it was contended that the Appellate High Court, was wrong in relying on irrelevances and in ignoring the valid findings of facts made based on credibility of witnesses and thereby setting aside the decision and entering Judgment for a counter claim despite all adverse findings against same.
On the second issue, it was submitted that the lower court (High Court) abandoned the issue raised on whether the trial Area Court erred in not making use of Exhibit ‘A’- and instead suo motu raised, its own issue as to the rejection of the said Exhibit ‘A’, and held that it constituted estopel as customary arbitration could constitute res-judicata and indeed so did against the Appellant. That a court had no business formulating a case for parties other than that presented before it.
That this was more so on appeal where the court is not a knight errant, looking for skirmishes against the trial court Judgment.
That this is because of the presumption of the correctness of a trial court’s Judgment.
Learned counsel submitted that although it could be conceded that a court could raise an issue suo motu that the Exhibit ‘A’ constituted res-judicata, the evidence led shows that the requirement had not been met. OHIEARI v. AKABEZE (1992) 2 SCNJ (pt. 1) 76 at 94-95.
Learned counsel referred to the evidence of Appellant on page 8 lines 9-10 of the record, that it was the kindred Head who brought the District Head to divide his land and that he refused that his land should not be divided. He also referred to the corroborative evidence of the Respondent. In this respect, that it was he who reported the matter to the kindred Head who then reported to the District Head who went and shared the land but the Appellant chased away the people of the Respondent and then filed the suit. See page 16 lines 17-26.
That from the evidence referred to above and Exhibit ‘A’, it cannot be said that both parties had voluntarily submitted to arbitration and had undertaken to be bound by its decision and had in fact accepted the award when it was made (pronounced).
That the Appellate High Court wrongly relied on the evidence of DW1 (Stephen Ahugwa Zaki) under cross-examination in coming to the conclusion on page 48 lines 16-21 that the parties were happy with the decision in Exhibit ‘A’ at the time it was published.
That this conclusion did not take into account the evidence of the parties in respect of the Arbitration as even the Respondent himself stated at page 17 lines 28-29 that he –
“was not happy and satisfied when the District Head of Mbaakule shored my land with Plaintiffs”.
Appellant stated at page 8 lines 10-13 thus:-
“When the District Head came, he in the same vain divided my land between the Defendant and myself. This time, he takes much of my land and gave same to the Defendant. Again I refused the decision of the District Head that my land should not be divided.”
That the High Court was wrong in his conclusion that the parties accepted the decision of the District Head contained in Exhibit ‘A’.
That there was no submission to Arbitration, but appearance upon being summoned.
This court is, therefore urged to allow the appeal because: –
1) The findings and Judgment of the trial Area Court Korinya were properly supported by credible evidence accepted by that court.
2) The Respondent did not prove his counter claim and was disbelieved on all the issues.
3) The Appellate High Court acted wrongly and without justification in setting aside the decision of the trial court.
4) Exhibit ‘A’ was properly considered by the trial Area Court and Exhibit ‘A’ did not satisfy the conditions in which a customary arbitration can constitute estoppels.
In response on the Merit, the Respondent’s learned counsel pointed out that the Respondent’s issue one (which raises the question whether the learned High Court – lower court was right in setting aside the decision of the trial court was the same as the Appellant’s Issue No. 1; submitted that the conditions for the interference of an appellate court with the decision of a trial court have now gone beyond the three (3) conditions listed by the Appellant; that it has now blossomed into seven (7) conditions. He referred to BAMIDELE v. DAUDA (2001) FWLR (pt. 36) 908 at pp. 918-919 wherein the Court of Appeal listed seven factors that will guide an appeal court in disturbing the findings of a trial court, thus:-
1) Where the findings are Perverse;
2) where the findings are not supported by evidence;
3) where the findings have not been arrived at as a result of a proper exercise of judicial discretion;
4) where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial;
5) where the court has drawn wrong conclusions from accepted credible evidence adduced before it.
6) Where the court has taken an erroneous view of the evidence adduced before it;
7) Where the findings were reached as a result of wrong application of some principles of substantive law or procedure.
By and large, learned counsel conceded that the list of such instances is not exhaustive and that the border line or determinant as held by the courts is to consider whether there has been lack of evaluation or improper evaluation of evidence such that leads to a failure of Justice.
That in either of such instances, a court of appeal will be called upon to certainly evaluate or re-evaluate the evidence, ISHIE v. MOWANSO (2001) FWLR (pt. 43) 338 at 357 was referred.
Learned counsel then proceeded to cite the decisions of the Supreme Court in ODUMADE v. KHALIL and DIBBO (2000) 7 SCNJ 149 at p. 158 to the effect that where there was no appraisal of evidence led by the parties, Supreme Court ordered for a reappraisal, rather than a re-trial, except where credibility was involved.
Learned counsel referred to AGBABIAKA vs. SAIDU (1998) 7 SCNJ 305 at 318 and finally to AGBANELO v. UNION BANK (2000) 4 SCNJ 353 at p. 363 and submitted that there must be evaluation of evidence before a finding of fact, except where there is no conflict of facts.
Counsel conceded that a Tribunal established for judicial functions, must normally state reasons for its conclusion.
Learned counsel argued that the trial Area Court did not make findings on such vital issues as: –
(i) Where the land between the two sub-kindreds to which the parties belonged;
(ii) the issue of conflicting traditional histories of the parties;
(iii) the issue of who among the competing/disputing families, settled Yaaya Gberko on the land;
(iv) whether the Plaintiff’s father/family was customary tenants of Defendant’s father as alleged
(v) Whether Plaintiffs family members who were from different sub-kindred from Defendant’s family were actually paying their taxes to Defendant’s tax collection.
(vi) Whether the two sub-kindreds to which the parties belong did not in fact share any common land boundary and
(vii) Whether some members of Plaintiffs family who were once on the land whether as customary tenants or not, have actually vacated the land to elsewhere and if where they had relocated was in fact their ancestral land, especially Gberindyer who lived and died on the land but was buried elsewhere.
Counsel contended that it was the absence of these “important” findings that prompted the lower (High) Court to evaluate the evidence and to arrive at the conclusion it did.
That the Appellate High Court cannot be faulted in the decision it arrived at.
Respondent’s counsel contended that the Respondent was further fortified by the fact that the Respondent as Defendant was not cross-examined on the key points and issues raised in his evidence.
That once evidence led was not challenged by the opposing party, the court was at liberty to act on such unchallenged evidence before it. ALFOTRIN v. AG. FEDERATION referred.
That the plaintiff’s case was founded on possession but that possession no matter how long cannot found a claim against the true owner.
AYODELE v. OLUMIDE (1969) 1 ALL NLR 233 at 240: DOKUBO v. OMONI (1999) 6 SCNJ 168 p. 189 and BALOGUN v. AKANJI 1988 1 NWLR (pt. 70) 301 at p. 322 OR 91988) 1 SCNJ 104 were referred to aid.
Counsel contended that when it comes to inferences that could be drawn from the facts on the record as against the issue of credibility an Appellate court could evaluate such evidence and draw such irresistible inference from the facts. NNORODIN v. EZEANI (2001) FWLR (pt. 40) 1696 at pages 1700 and 1701 were referred.
That the lower court was right in its conclusion that the trial court was influenced by sentiments and speculations; that a trial court, faced with facts was forbidden to speculate. GBAJOR vs. OGUNBUREGUI (1961) 1 ALL NLR 882 at 886 referred.
Finally on issue No. 1, it was submitted that there was no evaluation of the facts and evidence led and the Appellate court was therefore entitled to evaluate and that it rightly evaluated same. That the issue of a retrial did not at all arise in this matter as an option.
On the second issue relating to Exhibit ‘A’- the purported minutes of a traditional Arbitration between the parties, it was argued that the lower court was right on its conclusion that the trial Area Court had no business disregarding it and that the said Exhibit ‘A’ was a binding agreement which passed on as constituting estoppel against the Plaintiff.
That the Plaintiff was estopped from recoiling from its binding effect.
That in any case, that issue No.2 was academic now, as the first issue had settled this appeal effectively.
Referring to OHIERI vs. AKABEZE (1992) 2 SCNJ 76 at 95 wherein Akpata, JSC set out the five (5) ingredients of arbitration that will constitute estoppel thus:-
i) That there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
ii) that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding.
iii) That the said arbitration was in accordance with the custom of the parties or of their trade or business;
iv) that the arbitrators reached a decision and published their award and
v) that the decision or award was accepted at the time it was made.
It was contended that for the foregoing and the fact that the objection to the admissibility of Exhibit ‘A’ was only that it was not a certified public document, it could not be contended that Exhibit ‘A’ did not meet the requirements for an arbitration to create estoppel. That the Appellate lower court (i.e. High Court was right in its decision on Exhibit ‘A’. OPARAJI v. OHANU (2001) FWLR (pt. 43) 385 p. 398 and OZOEWULU v. EZEAKA (2001) FWLR (pt. 46) 932 at pp. 951-2 were relied upon.
On the whole, this court was urged to allow the preliminary objection and strike out the Appeal for the reason also stated in the Judgment herein.
On the merit, the appeal is said to be without merit and deserves to be dismissed and the decision of the lower court be affirmed as there was either no evaluation or evaluation in some instances were not supported from evidence led. That the re-evaluation and findings of the lower court were correct, and that Exhibit ‘A’ was a binding Arbitration between the parties and was rightly acted upon by the lower court.
I have painstakingly perused the entirety of the record of appeal and studied in detail the Judgment of the two courts in contest and on appeal now and observe that the respective counsel for the respective parties have adequately and correctly situated or identified the two (2) issues that are germane and which shall determine this appeal on its merit, the point of preliminary objection having been addressed and remedied by the application of learned counsel for the Respondent that effectively saw the relevant Notice and Grounds of Appeal into this proceedings, thus making this court bound to in any event take judicial Notice of facts or documents in its file.
In the meantime, there will continue to be many difficult cases in which the court has to reach a conclusion on sparse and conflicting evidence. It is the court’s duty to reach a decision even on the most difficult case.
That is what courts are for. The trial court has the onerous task of finding that primary facts and drawing the necessary inferences and conclusions and appellate courts will be slow to overturn the trial Judge’s findings. See, NICHOLAS STRAUSS (QC DEPUTY JUDGE) in (2010) 1 WLR 2401 par. 33. In that case, the appeal was allowed and the order of the lower court was restored on the merit of the appeal. I shall start with Issue No. 2 of the respective partiesThis issue relates to the Exhibit ‘A’. The said Exhibit ‘A’ is titled –
“Minutes of land dispute between loryina Ukaigye v. Tom Gberindyer all of Mbagwe kindred – Iwaver District held from Mishe Ajande Church on 31st March, 1995”.
The crucial issue raised relating to the said Exhibit ‘A’ is whether it was binding Arbitration Agreement which could thus be held to constitute estoppel against the Appellant, who contends otherwise.
Both parties have, by their counsel rightly submitted as to what a binding Arbitration Agreement or document is.
The case of OHIERI v. AKABEZE (supra) relied upon by both learned counsel is apt. It is however clear from the evidence of both parties and their witnesses, re-enforced by their submissions that the parties were not ad idem with respect to the submission to the arbitration. The Appellant who was the Plaintiff at the trial court did not voluntarily do. He said so in evidence. He said he was summoned. There was also no consensus as to the outcome of the Arbitration, as both parties disagreed as each party including the Defendant/Appellant, who is the Respondent, now even stated that he was also aggrieved by the outcome of the Arbitration Exhibit ‘A’ as according to him a large portion of his land was taken and excised for the Appellant. The Appellant too was aggrieved for the same reason. The case of OHIERI v. AKABEZE (supra) referred to by both counsel is clear authority to the effect that the reliance placed on Exhibit ‘A’ as constituting a binding document and estoppel against the Appellant is not helpful to the Respondent but advances the Appellant’s case on the Issue No.2, that the lower court was wrong in holding as it did that Exhibit ‘A’ constituted estoppel against the Appellant.
The Respondent’s learned counsel had submitted that the objection was only as concerns its admissibility on the basis of non-certification on alleged ground that it was a public document and that since its admission was not followed by an address against its use, the Appellant could not complain against the fact that it never met the requirement of the law to constitute valid arbitration agreement that could constitute estoppel. This argument is as tendentious as it is baseless.
The trite law is that, even where a document has been admitted in evidence the weight to be attached to it is an entirely different consideration. Such considerations such as whether it was validly admitted or whether the document was authentic and whether the facts contained therein constitute and satisfy the law on the existence or creation of the right(s) asserted or denied are the essentials for the attachment of weight thereto.
For the avoidance of doubt, the law allows for the expunging of documentary evidence wrongly admitted and indeed, allows a court not to rely on evidence of that was wrongly admitted. This Court and even counsel can rightly raise the question of the legal effect of Exhibit ‘A’ even at this stage and on appeal.In this matter on appeal, the non address or no complaints will not, in any case, make the difference by validating the Exhibit ‘A’ by elevating its effect to what it was not; in accordance with the law.
For even if the Exhibit was tendered without objection, that fact did not convert it into a binding arbitration Agreement. Exhibit ‘A’ appears as minutes of a trial between two (2) persons both expressed to be from Mbagee kindred.
There is nothing on the said Exhibit ‘A’ or any evidence that a distinct and identifiable land area existed for each kindred man or group?
Issue No. 2 of both parties is resolved against the Respondent and in favour of the Appellant.
ISSUE NO. 1
Issue No. 1 as argued by the Appellant and refuted by Respondent simply seeks to show that the Judgment of the lower court was perverse, and that there was no basis for interfering with the decision of the trial Area Court, upon the evidence led at the trial court.
The starting point for the appreciation of the issue No. 1 and the opposing arguments of counsel in respect thereto is the clear appreciation of the fact that the law is settled and crystal clear in our adversarial system of adjudication, a party who asserts has the onus of proof. The burden is on him to prove his case, else he will lose his claim as it is said – His case will fail.
See, ECHI & 4 ORS. v. JOSEPH NNAMANI & 5 ORS. (2005) 5 SCNJ 15 pars. 35-40 at 164; JUSTINA PAUL V. EMMANUEL OZOKPO (1995) 4 SCNJ 199 at 136 Par. 20.
In PAUL JUSTINA vs. EMMANUEAL OZOKPO (supra) it was held by the Supreme Court thus:-
“In a claim of declaration of title to land, the onus lies on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. He must rely on the on the strength of his case and not on the weakness of the Defendant’s case. The onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant”.
See also BUHARI & 10 ORS V. CHIEF OLUSEGUN A. OBASANJO & 264 ORS (2005) 7 SCNJ AT 47.The Appellant’s learned Counsel had contended that the trial Area Court had properly evaluated the evidence led and found it in favour of the Plaintiff now Appellant who was Respondent at the lower Court, upon the evidence led and wondered why the lower Court would interfere with the conclusion reached. It is correct and I agree with the learned Counsel for the Appellant (and the Respondent’s learned Counsel is on this also agreeable) that an appellate Court including this Court has no business to substitute its view with that of the trial Court particularly when it relates to findings based upon the credibility of witnesses as it is the trial Court alone that had the advantage or benefit of seeing, hearing and observing the demeanour of the witnesses. Findings based on such superior advantages should not ordinarily be interfered with. See, MUSA SHA (Jnr.) & 10 ORS V. DA NAP KWAN & 3 ORS (2000) 5 SCNJ 101 AT 119.
In CPC & ANOR V. UNEC & 4 ORS (2012) 2 – 3 SC 1 the apex Court was emphatic that a finding and conclusion upon evaluation by a Court shall be respected by an appellate Court unless there is basis to interfere or disturb findings as made.At the trial Grade II Area Court, Korinya, the Plaintiff now Appellant by his application for writ of summons at page 1 of the record stated inter alia:
“3. That the Plaintiff inherited a piece of land situate at Mbamon do Mbakule from his fore fathers namely: Ufum before the Plaintiff inherited the piece of land.
4. That the Plaintiff have being (sic) farming on this land time immemorial (sic) until last year (1996) the Defendant encroached on this piece of land and working on it without the Plaintiffs consent
5. That the Defendant have weeded the piece of land preparatory for this year farming season (i.e. 1997) and the Plaintiff approached the Defendant to stop further act of trespass but he the Defendant refused or neglected the advise
6. Whereof the Plaintiff therefore claim the declaration of title to the piece of land lying and situate at Mbamondo, Mbakule from the Defendant.
(a) A perpetual injunction restraining the Defendant his servants, relations, agents and whosoever from further trespass on the piece of farmland.
The Defendant at page 3 of the record attempted to make a counter claim of that parcel of land situate at Mbager Mbaagile Ghav and sought for the following reliefs:
“An order declaring title to the land in the Defendant/counter claimant
(b) An order of forfeiture against the Defendant
(c) An order of perpetual injunction restraining the Defendants, their privies, personal representatives and assigns from further act of trespass upon the land;
2 The boundaries of the aforesaid land will be established at the leaving of the counter claim.”
However, the application to have this counter claim substituted for an earlier one dated 9th December 1997 and contained at page 2 of the record, failed. The counter claim contained on page 2 of the record provides simply and barely as follows: –
“COUNTER CLAIM”
The Defendant, Labe Ukagye hereby counter claim all that parcel of land Situated at Mbager Mbaagile Ghav against all the aforementioned Defendants
2. The boundaries of the aforesaid land will be established at the leaving of the counter claim
By a Ruling delivered on 29/11/99 contained on page 15 of the record, the application for the substitution of the counter claim was refused when the trial Court stated thus: –
“We wish to state here that in as much as the application by the Defendant’s Counsel is not based on mala fide it cannot be granted for simple reason that the Plaintiff had closed his case on 8 – 11 – 99, The Plaintiff filed his new counter claim after the Plaintiff closed his case. If we were to grant this application the Plaintiff will not have the chance to be heard. This will occasion on injustice to him. We have checked the case file but could not see the new alleged counter claim. The application is hereby refused for want of merit.
Appeal right: 14 days to customary Court of Appeal, Makurdi”.
Defendant’s Counsel V.T. Kor then said “We are ready to call our first witness
The Defendant/Appellant had therefore effectively no counter claim for which any relief was sought. The moreso he was not even the counter claimant at page 2 of the record (which he sought to substitute). The claimant therein is one Labe Ukagye. Be that as it may, the Defendant/Respondent testifying at the Area Court Grade II stated as DW at page 15 of the record as follows:
“I knew the Plaintiff who has sued me. He sued me for land dispute. The land is situate at Mbagile. The land under dispute belongs to me. I know the land belongs to me because the land is a community land of Agile…”
The Defendant then traced a long trail and line of genealogical succession to the land including his father. He states at page 16 that the plaintiff’s compound is within the land he asserts as his own land that the plaintiff had cut all the economic trees like orange stands and mangoes. That the land in dispute was handed over to him by one Yaya who had been given the place to stay as his mother was from Mbagile. He said “we gave him the place to stay. He stated that it was his own father that gave out the land hence his claim.
A reading of the evidence led in proof of the Plaintiffs claim and the answer in cross-examination re-enforcedly strengthens the case of the Appellant at the Area Court.
To the contrary the Defendant who had no counter claim in fact and law in the record of the trial Court led evidence that sought its strength and reliance on the fact that the land claimed was a community land of Agile. There was nothing in evidence led by the Defendant/Appellant that there was an Agile community and that the said Agile community owned the land being claimed by the Plaintiff.
In OGUNLEYE V. ONI (1990) 2 NWLR 745 SC 193/1987 the apex Court held thus:
“Generally speaking as a claim of trespass to land is rooted in exclusive possession all a Plaintiff needs to prove is that he had exclusive possession of the land in dispute. But once a Defendant claims to be the owner of the land in dispute title of it is put in issue and in order to succeed the Plaintiff must show a better title than that of Defendant”
The Plaintiff at the trial was in effective occupation. He had his compound within the disputed land. He farmed thereon. Defendant admitted the fact of the Plaintiffs compound in the land and also the fact that he Defendant has nothing on the land except the 2 thatch houses which he built but were destroyed by the Plaintiff; that all the economic trees planted by him thereon were destroyed by Plaintiff and he therefore does not do anything on the land. The Plaintiff was therefore the one in occupation and possession. The Defendant never sued, but made claims to the land in defence on the basis of reversionary interest in favour of his father or community as the person who was hitherto there, was no more. There was no evidence led by the Defendant and I see none in record as to how the Defendant’s father made the land a community land and why it was the Defendant and not the Agile community that could claim its ownership, or assert a right in respect thereto.
Surely there is no proof as to how the Agile community owned and granted the land in dispute to the Plaintiff or his father. The Defendant could not therefore be said to have established a better title. In the absence of a better proof of title, the duty or burden of proof on the Plaintiff to prove title particularly where he is in occupation is very minimal. Where this minimal burden in satisfied, the appellate Court will not interfere with the findings of facts of a trial Court where such findings are supported by the pleadings and evidence adduced before the Court. It will only interfere in exceptional circumstance where such findings are perverse, not supported by evidence or had occasioned a miscarriage of justice. It is not the business of the appellate Court to substitute its view of evidence for that of the lower Court. Miscarriage of justice will definitely result from adopting such course of action when it is unwarranted. The need to ensure that justice is done must always dominate the attitude and reasoning of the appellate Court when dealing with appeals arising from questions of facts. See, CPC & ANOR V. INEC & ORS (2012) 2 – 3 SC 1 AT PAGE 35 PER ADEKEYE, JSC.
The trial Court had evaluated the evidence impeccably in my humble view. I must point out that evaluation of evidence comes in two forms. See the recent decision of the Supreme Court in AYORINDE & ORS V. SOGUNRO & 6 ORS (2012) 4 – 5 SC 150.
In that case, which I applied in my decision in CA/J/204/2006 (SUIT NO NSA/AKW/4/2003) of 3rd June, 2013, His Lordship Rhodes Vivour, JSC stated in his lead judgment at page 15 of the report thus: –
“Evaluation of evidence comes in two forms:
(a) Finding of facts based of the credibility of witnesses and
(b) Finding of facts based on the evaluation of evidence.
In (a) an appeal Court should be slow to differ from the trial Court, after all it was he that saw and heard the witnesses, he watched their demeanour and so his conclusion must be accorded respect but in “B” an appeal Court is in as good position as the trial Court to evaluate the evidence. In both (a) and (b) the conclusion of the trial Judge should be accorded much weight except found to be perverse”The trial Area Court in his judgment has this to say inter alia: –
“Some of the requirement of law regarding claim for a declaration of title to land is first of all the description of the land in question. The Plaintiff has shown the Court clearly the area of land which his claim relates as against the Defendant’s counter claimant during our visit to locus in quo we found out that apart from the two collapsed thatched houses, the Defendant counter claimant have nothing on the land to call his own. He told us in his evidence that all the surrounding farms belong to the Plaintiff. We are of the opinion that even if the Defendant counter claimant had a piece of land he has stayed away for too long a time to come back to it again. Delay defeats equity.
In his counter claim he did not seek that the orchard farms, the various compounds and the Melina forest within the disputed land should be destroyed to pave way for his enjoyment of the land. We therefore find it very hard to make order when the above feature are scattered all over the disputed land”.
The trial Court stated further: –
“While we were on the disputed land for inspection the Defendant/counter claimant who claimed the land was divided could not show the demarcation line created by the traditional rulers. He rather informed us that the chiha tree was cut down by the Plaintiff. We then allowed him time to show us its stump, but he could not find it.
We find that the Plaintiff has a better title as against the Defendant”.
The trial Area Court arrived at that conclusion based on the evidence led and the visit and inspection and evidence at the locus. The lower (High Court) never had that advantage. It did not visit the locus in quo as it was not a Court of first instance in the matter.
The Appellant as Plaintiff was found to be in occupation and exercising acts of ownership. The Defendant was found wanting. How come that a Court of trial evaluating such evidence will not find the scale as tilting in favour of the Plaintiff and heavily too? It could not have been otherwise. An appellate Court will not interfere in such findings and conclusion based on evidence properly evaluated. See, ALHAJI SANI MANI & 2 ORS. V. ALHAJI SHANONO (2007) ALL FWLR (pt. 345) 303 at 324 Par. E.
A presumption in favour of the Plaintiff, now Appellant that he was the owner in exclusive possession had been right and the trial Court was bound to so hold in his favour, more so that there was no better proof of title established by the Defendant. Evaluation of evidence by the trial Area Court was flawless in the circumstance.
The lower Court falling into the error of not appreciating that in the determination of cases particularly appeals the decision is not based on snippets or bits of isolated evidence but the entireties of the case so that the justice of the whole case shall be determined, see, AGORONYI J. ALADI v. UNION BANK OF NIG. (PLC) (2005) ALL FWLR (pt. 285) 517 at 537 Paragraph 6. Purportedly found support for upturning the trial Court’s judgment in such thing as stating the age of the orange farm and the Melina forest said to be more than fifty years old. That that was speculative as the age of the farms was not stated by the Plaintiff or his witness. That fact of age could be a reasonable inference from the evidence of the age of the Plaintiff and in any case the age of the trees or Melina forest were not the reason for the decision of the trial Court; calling it “outrageous” was a case of four fingers pointing back to the accuser.
The lower Court also considered at page 47 of the record (in its judgment) that the fact that Ayoo Boi and Hemba Ufum had been shown to have moved away from the disputed land, even though they were Plaintiff/Appellant’s relations meant that that land was not theirs. The so called proof of the traditional evidence by the Defendant/Appellant was indeed contradictory to his evidence that the land was an Agile community land. The lower Court stated that –
“The land in dispute is located in Mbaagile Mbamazu where the Respondent traced his traditional history through his forefathers to. It is our opinion that if the vision of the trial Court were not beclouded by its personal feelings, sentiments and speculations and imaginations of its observations at the locus in quo, it should have been able to peruse the evidence on the record before it properly and would have discovered the traditional history of the Defendant/Appellant proved”.
Is the migration of relations of a party or even a party himself proof of traditional title to land by his opponent; or it may be asked – does the fact that relations or a party migrate take away his right to title to land proved to be in his occupation as against another who has not proved better title?
Traditional evidence led by the Appellant was not conclusive as it was contradictory to the claim of community title to land testified to concomitantly. It cannot therefore be rightly said to be a weighty evidence to be relied upon even if unchallenged. The lower Court made heavy weather about the location of the land contending that the trial Court did not state it and that it was deliberate. See page 44 of record.
The parties and the Court were not misled as to the location of the land.
It was visited and the trial Judge made it clear (as stated elsewhere in this judgment that the Appellant described and identified the land in dispute).
The trial Court confirmed at the locus that there was no pond in the land contrary to the Defendant/Respondent’s claim that his father had a pond on the land; the denial of same was confirmed by the trial Court when they found that it saw a dry valley where somebody not known to the Defendant was cultivating rice thereon. That was the area described as fadama by the Plaintiff. See page 32 of the record.
The credibility of the Defendant was therefore involved and the trial Area Court which alone had the benefit of seeing, hearing and observing his demeanour and inspecting the land made its finding on this evidence. This is what the appellate Court strangely set aside without having a corresponding opportunity. There is no appeal against that finding of fact of the trial Court. The location of the Defendant’s compound outside the land in dispute was confirmed by the visit to the locus in quo. The lower Court considered the non stating of the kindred or sub kindred where the land is located as mischievous –
“as after the Plaintiff could not leave his kindred to own a land in another sub kindred, Mbaagile Mbamazu said to be another community altogether”.
What an imperial conclusion? Upon what law? Strangely and in perversion of justice with due respect, the lower Court wrongly based its reason for setting aside the trial decision aside on the ground mainly that:
“Ordinarily with the finding of this Court above that the land in dispute is situates at Mbagile therefore all those claimed to have been settled on the land must have been settled by the Defendant’s father. We wouldn’t have bordered (sic) to touch on the remaining grounds of appeal as the finding above settles the matter one way or the other”.
See page 45 of the record (judgment of the lower Court).
What an untenable reason to found a case for a Defendant and upturn a judgment. It is this wrapped reasoning that formed the basis for upturning a decision based on proof. That Plaintiffs father was settled on Mbamazu land by the Defendant’s father, even so did not make Mbamazu land the property of the Defendant or his father. No proof to that. That the lower (High Court) felt the trial Court had made heavy weather out of the acts of long possession as if it is the only means of proof of title to land.
Sure, it is not the only means, however, a Plaintiff is entitled to prove its case by any of the means allowed by law. He cannot be compelled into proving his case in any particular way.
From some of the references to instances as above highlighted it appears clear to me that the interference with the trial Court’s judgment was not based on any legal justification as dictated by the state of the legal authorities. There was no miscarriage of justice in the evaluation of evidence and the conclusion arrived at, at the trial Area Court Korinya. There was miscarriage of justice in setting aside the decision so impeccably founded upon evidence and evaluation based on perception of the trial Court. Rules of procedure was properly followed in admitting documentary evidence and in ascribing value to it as appropriate in accordance to law, standard of proof was attained to the satisfaction of the trial Court and this Court. The judgment of the trial Court was based on well examined and accepted evidence, this Court cannot find otherwise. I can’t fault the trial Area Court II Korinya. There was no basis to have interfered by setting same aside as did the lower Court. Where is the counter claim? Where is the proof? It was a perverse exercise and justice abhors and deprecates same. The appeal against that exercise is allowed. In consequence, I set aside the decision of the Benue State High Court in suit No. VHC/2A/2000 delivered on 22nd March 2002 and make a consequential order restoring the judgment of the Area Court, Grade II, IWANEV holding at Korinya in case No. CV/38/97 delivered on 25/01/2000.
Costs:
Cost of thirty thousand Naira (N30, 000.00) in favour of the Appellant and against the Respondent.
JA’AFARU MIKA’ILU J.C.A.: I agree with the judgment of my learned brother Mohammed A. Danjuma, JCA. I set aside the decision of the Benue State High Court in Suit NO: VHC/20/2000 delivered on 22nd March, 2002 and order the restoration of the judgment of the Area Court Grade II, IWANEVE holden at Korinya in case No:CV/58/97 delivered on 25/01/2000.I make no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of reading in draft, the judgment just delivered by my learned brother, Mohammed A. Danjuma JCA.
I am satisfied with his reasoning and the conclusions arrived at.
I need further emphasis that the evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary and well recognized functions of the trial court, which saw, heard and assessed the witnesses called by both parties. Where it is manifest that the trial court properly evaluated the evidence and justifiably appraises the facts, before it, the appellate court will hardly intrude or interfere to substitute its own views for those of the trial court.
Thus, it is only where and when the trial court fails to evaluate such evidence properly or at all that an appellate court can intervene and re-evaluate such evidence. See Fagbenro V. Arobadi (2006) 7 NWLR (Pt 978) 174; Ojokolobo V. Alamu (1998) 9 NWLR (pt 565) 226: SHA V. Kuan (2000) 5 SC. 178 and Adebayo V. Adusei (2004) 4 NWLR (Pt. 862) 44.From the foregoing, I also allow this appeal and affirm the judgment of the trial court, and set aside the judgment of the High Court.
I equally abide by the consequential order made in the lead judgment including that of costs.
Appearances
P. A. MBAHON, ESQ. For Appellant
AND
S. A. NGAVAN, ESQ. WITH E.N. AKOR-IKPAM (MRS.) AND E. K. CHIA, ESQ. For Respondent
