HAMMA TUGGA v. AHMED DANHAUSA
(2013)LCN/6356(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of June, 2013
CA/J/197/2005
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
HAMMA TUGGA Appellant(s)
AND
AHMED DANHAUSA Respondent(s)
RATIO
WHETHER OR NOT THE PROVISIONS OF THE EVIDENCE ACT IS APPLICABLE TO THE PROCEEDINGS BEFORE THE UPPER AREA COURT
Whether the provisions of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990, were applicable to the proceedings before the trial Upper Area court not, the answer can be found in section 1(1) and (2) of the Act itself. The Section provides as follows:
“1(1) This Act may be cited as the Evidence Act.
(2) This Act shall apply to all judicial proceedings in or before any court established in the Federal Republic of Nigeria but it shall not apply –
(a) to proceedings before an arbitrator; or
(b) to a field general court martial.”
Section 2(1) of the Evidence Act provides for the interpretation or meaning assigned to certain specific “words” or “terminology” in the provisions of the Act as follows:
“2(1) in this Act, except as the con otherwise requires
…
…
“court”, includes all judges and Magistrates and, except arbitrators, all persons legally authorized to take evidence.” PER BDLIYA, J.C.A.
WHETHER OR NOT TEH APPELLATE COURT HAS THE POWER TO EXPUNGE AN INADMISSIBLE EVIDENCE ADMITTED IN A PROCEEDINGS BEFORE TH TRIAL COURT
Where reliance is placed on a judgment of a court of law in establishing or proving an issue in dispute, that judgment must be produced and tendered in evidence to enable the court ascertain what was decided in it and its effects on the dispute being resolved by the court.
See section 56(1) and (2) of the Evidence Act and Jiaza vs. Bamgbose supra.
Where an inadmissible evidence has been admitted in a proceedings before a trial court, an appellate court has the power to expunge such evidence on appeal. See Inyang Vs. Eshiet (1990) 5 NWLR Pt. 149 P.178 and Jiaza Vs. Bamgbose (1999) 69 LRCN P.1278 @ 1281. PER BDLIYA, J.C.A.
THE DUTY OF THE TRIAL COURT IN THE EVALUATION OF WITNESSES BEFORE IT
On what is evaluation of evidence, this Court, in the case of Eze Vs. Okoloagu & Ors. (2010) 3 NWLR Pt. 1180 P. 183 per Tsamiya, J.C.A., said:
“What is the meaning of the expression evaluation?
Evaluation means the assessment of evidence as to give value and quality to it.”
In Ilorin Vs. Tella (2006) 18 NWLR Pt.1011 P. 267 @ 291, this Court also stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasonable belief of the evidence of one of the contending parties and the disbelief of the evidence of the other party or a reasoned preference of one version of evidence to the other. There must be on record how the Court arrived at the conclusion of preferring one set of evidence to the other. See also Idahosa Vs. Nigerian Army (2004) 2 NWLR Pt.902 P. 356; Olyekolo Vs. Ajibade (2004) 2 NWLR Pt. 875 P. 249 and Onwuka Vs. Ediala (1989) 1 NWLR Pt. 96 P. 182.
In evaluating evidence, the Court must put the totality of the testimonies or evidence adduced by the parties on an imaginary scale and weigh them before coming to a decision as to which evidence it believes or accepts, or rejects and then decide the matter before it on the preponderance of such evidence or on the balance of probability of such evidence. The Court is to see which evidence weighs heavier, not by the number of witnesses that testified, but on the probative value of the testimony of such witnesses. This is what is meant when it is said that a civil case is proved or decided on the balance of probability or on the preponderance of evidence. See Henshaw Vs. Effange (2009) 11 NWLR Pt. 1151 P.66 @ 67; Magaji Vs. Odofin 1978 4 S.C. 91; Woluchem Vs. Gudi (1981) 5 S.C. 281; Omokhafe Vs. Mil. Adm., Edo State (2001) 14 NWLR Pt. 733 P. 290 and Trade Bank Ltd. Vs. Chama (2003) 13 NWLR Pt. 836 P.158. PER BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Gombe State High Court of Justice, Appellate Session, (hereinafter referred to as the lower Court) delivered on the 11th of March, 2005 which emanated from the judgment of the Kaltungo Upper Area Court (hereinafter referred to as the trial Court) delivered on the 30th of July, 2003. The Background facts of this appeal are that the appellant (who was the plaintiff) sued the respondent (who was the defendant) before the trial Court of claiming a farmland which he allegedly inherited from his father. The trial court entered judgment in his favour. The respondent was not satisfied with that judgment, he therefore appealed to the lower court. After the hearing of the appeal, the lower Court allowed it, set it aside and entered same in favour of the respondent. The appellant was not satisfied with the judgment of the lower Court, hence his appeal to this Court by a Notice of appeal dated and filed on 9th June, 2005; with two grounds of appeal. The grounds of appeal without their particulars are as follows:
GROUND (1)
The Lower Court erred in Law when it held that the evidence of PW2 and 3 given at the upper Area court Kaltungo were inadmissible on the ground that those pieces of evidence is excluded by part IV of the evidence Act.
GROUND (2)
The lower Court misdirected itself when it only evaluated the evidence of Defendant’s witnesses without evaluating the evidence of plaintiff’s witnesses and came to the conclusion that the evidence adduced by Defendant’s witnesses carry more weight than that of Plaintiff’s witnesses when put on an imaginary scale.
The appellant filed his Brief of argument on the 22nd of March, 2011, wherein he formulated three (3) issues from the two grounds of appeal, which are thus:
(i) Whether proceedings in Area court are governed by the Evidence Act and or whether the evidence of PW2 and 3 are excluded by part VI of the Evidence Act (Ground 1 thereof).
(ii) Whether the learned judges were right in evaluating only the evidence of Defendant/Appellant/Respondents witnesses in arriving at its decision that defendant’s (then appellant) evidence carried more weight than that of the plaintiff/Respondent/Appellant (Ground 2).
(iii) Whether the High court sitting on appeal was right in holding that the plaintiff/Respondent/Appellant fail to discharge the burden placed on him to prove his case for the declaration of title of land (Grounds 1 and 2).
The respondent filed his Briefs of Argument on the 26th of October, 2011, wherein he distilled two issues from the two grounds of appeal which are as follows:
(i) Whether the High court of Gombe state was right to have expunged the oral evidence of PW2 and PW3 with regards to judgment in previous proceedings? (Ground one)
(ii) whether the appellant has discharged the burden of proof required to entitle him to judgment? (Ground two).
The appeal came up for hearing before this court on the 28th of April, 2013. The appellant’s Brief of argument was adopted by learned counsel as the argument in the appeal. The court was urgent to allow the appeal, set aside the judgment of the lower court, and restore that of the trial court. The respondent’s Briefs of argument was also adopted by learned Counsel. He did urge the Court to dismiss the appeal and affirm the judgment of the lower Court.
I have observed that, Jangkam Esquire, of learned Counsel to the appellant formulated three (3) issues out of the two grounds of appeal.
The third issue is found on page 3 of the Brief of argument which is distilled from grounds 1 and 2 of the grounds of appeal. However, issues 1 and 2 have also been distilled from grounds 1 and 2 respectively. The law is trite that issues formulated for determination in an appeal should not exceed the grounds of appeal. It is also settled that more than one issue can not be distilled from one ground of appeal. Where more issues are distilled than the grounds of appeal or two issues from one and same ground of appeal, such issue(s) are incompetent; and are liable to be struck out. The issues formulated in a Brief of argument must be based or be related to the grounds of appeal. An issue can cover one or more grounds of appeal, not conversely. See Bayero V Mainasara & Sons Ltd. (2006) 8 NWLR pt. 982 p.351 @ 422; Oladotun v. State (2010) 15 NWLR PT. 1217 p.490 @ 522; Eyo V. State (2013) 1 NWLR Pt. 1335 p. 334 @ 335; Nwonkwo V. FRN (203) 4 NWLR Pt. 809 P.1025 and Tsemudiara V. FGs & G Ltd. (2008) 7 NWLR Pt.1085 P. 84 @ 97.
As observed hereinbefore in this judgment, Issue 3 in the appellant’s Brief of argument has been distilled from grounds 1 and 2 which already have been the basis of Issues 1 and 2. The position is that each of grounds 1 and 2 of the grounds of appeal has more than one issue distilled therefrom, This is not permissible in law. I therefore hold that Issue 3 in the appellant’s Brief of argument is incompetent. Same is hereby struck out. See in support cases referred to supra. An Appellate Court can adopt or reframe or even formulate new issue(s) different from that formulated by the parties for the just determination of an appeal in so far as such issue(s) are related to the grounds of appeal. See Balogun v. Yusuf (2010) 1 NWLR pt. 1200 pt.572 and Agberam v. Minre (2009) 2 NWLR pt. 1-71 P. 378.The issues formulated by both learned counsel to the appellant and the respondent are hereunder reframed as follows:
(i) Whether the learned judges of the lower Court were right in holding that the provisions of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990, (Particularly Part VI, Section 132(1) thereof) were applicable to the proceedings before the trial Upper Area Court to render the evidence of P.W.2 and PW3 on the judgments in the previous litigation inadmissible?
(ii) Whether the learned judges of the lower Court were right in evaluating only the evidence of the respondent’s witnesses in holding that such evidence weighed heavier than that of the appellants’ witnesses, hence he did not prove his claim of title to the land in dispute.
ISSUE ONE (1)
Taking Issue 1 first, I think it is apt to refer to the holding of the learned judges of the lower Court on page 44 lines 7 to 25 of the record of appeal. This is what their lordships said:
“The position of our evidence law on the exclusion of oral evidence of the content of a document is not in doubt at all. The oral evidence of the content of a judgment or other transactions that are reduced to writing is clearly excluded by Part VI of the Evidence Act. Although the evidence sought to be introduced through P.W.2 and 3 is not intended to operate as an estoppels against the Defendant/Appellant it is patently clear that the evidence relates to the contents of those written judgment the oral evidence of which is excluded by the express provisions of Part IV of the Evidence Act. Therefore Respondent cannot be heard, saying the fact that the oral evidence of the alleged proceedings of the courts before which his farther had cases with other persons were admissible simply because they are material to the case at hand. The written judgments must speak for themselves. In the absence of a certified copy of same, no oral evidence of the content of those proceedings will be tendered in their place and any evidence tendered as to their content will be inadmissible and must be expunged by the appellate court, and we so hold. See JIAZA VS. BAMGBOSE (1999) 69 LRCN 1278 ration 5 at 1281. The evidence P.W 2 and 3 as it relates to the judgment was therefore improperly admitted.”
Were the learned judges of the lower court right or justified in arriving at the decision supra? Learned counsel to the appellant submitted that the learned judge of the lower court were wrong in coming to the decision supra on the admissibility of the oral evidence of PW2 and PW 3 by the trial Court. It was his contention that Part VI (Section 131) of the Evidence Act, Cap. 113, Laws of the Federation of Nigeria, 1990, did not apply to the proceedings before the trial Court having regard to Section 1 (2) (C) thereof. That civil proceedings before the trial Upper Area court was governed by the Area court (civil procedure) Rules, 1972. It was his further submission that Area Courts are only required to admit and record evidence in accordance with Native law and Custom, not the Evidence Act. Learned Counsel referred to and relied on Section 1, (2) (c) of the Evidence Act to reinforce his submissions supra. He therefore submitted that the lower Court erred in law when it held that the oral testimonies of PW2 and PW3 on the judgments in the previous litigations involving the parties ought not been admitted and relied upon by the trial Court in view of the provisions of Part VI of the Evidence Act. It was further pointed out that the only applicable provisions of the Evidence Act to proceedings before an Area Court are those dealing with fair hearing. The case of Jikantoro V. Dantoro (2004) 5 SCNJ P. 152 @ 158 was cited to buttress the submission supra.
Learned Counsel went on to submit that the learned judges of the lower Court also erred in law when they held that in order for the testimonies of parties on the previous litigations to be admissible in evidence the judgments in those cases ought to be tendered in evidence before the trial Court. It was his contention that the decision rejecting the evidence of PW1 and PW2 was wrong because the purpose of adducing such evidence on the previous litigations was to prove that the appellant’s father had litigated as the owner of the land in a previous litigation, but not to serve as on estoppel to the dispute before the trial Court. It was this further submission that the Learned judges of the lower Court misconstrued the provisions of part VI of the Evidence Act in that Area Courts were not bound to apply the provisions of the Evidence Act in civil proceedings in so for they do substantial justice in the adjudication process. Learned Counsel therefore contended that had the learned judges of the lower Court not erred in their conception of the applicability of the provisions of the part VI of the Evidence Act to the dispute before the trial Court, they would not have rejected the evidence of PW2 and PW3. Having done so their decision is perverse and had occasioned a miscarriage of justice. It was his contention that this is so because the evidence of the appellant and his two witnesses, PW2 and PW3, which were not controverted have proved the claim of title to the farmland in dispute in favour of the appellant. The case of NEKA Ltd. V. ACB (2004) 1 SCNJ p. 193 @ 197 was cited to reinforce the submission supra.
Learned Counsel referred to Section 55 of the Evidence Act and submitted that even if the learned judges of the lower Court were right in holding that part VI of the Evidence Act applied to the proceedings before the trial Court, the oral testimonies of the witnesses would have been admissible since it was not intended to serve as estoppels but as a defence to the claim of the appellant. It was his submission that had the learned judges of the lower court adverted, their minds to the provisions of Section 55 of the Evidence Act and applied it they would not have rejected the evidence of PW2 and PW3 on the previous litigations by the parties over same land. Concluding, Learned Counsel did urge the Court to hold that the provisions of part VI of the Evidence Act did not apply to the proceedings before the trial Court, therefore, the lower Court was in error in holding so. Issue 1 be resolved in favour of the appellant.
Kadala Esquire for the respondent submitted that oral evidence can not be admissible to prove contents of written document. That the learned judges of the lower court were right in rejecting the evidence of PW2 and PW3. The case of Jiaza vs. Bamgbose (1999) 69 LRCN P.1278 was cited to fortify the submissions supra, It was his further submissions that where inadmissible evidence has been admitted by a trial court, an appellate court is empowered to reject and expunge such evidence on appeal. The lower court was therefore right in rejecting and expunging the oral evidence of PW2 and PW3 regarding the previous litigations between their father and the appellants father. See Inyang vs. Eshiut (1980) 5 NWLR Pt. 149 P. 178 and Jiaza Vs. Bamgbose supra P. 1281.
Learned counsel referred to section 227 of the Evidence Act and adumbrated that the lower court was on a formidable ground when it examined, reviewed and evaluated the evidence of PW2 and PW3 and rejected same having found that such evidence was not admissible in law.
The case of Alao vs. Alabi (1997) 6 NWLR Pt.508 P.351 was cited to buttress the submissions supra. Learned counsel further submitted that where reliance is plead on a document as evidence to prove an assertion, such document must be produced and tendered before the court. The case of Jiaza vs. Bamgbose supra P.1308 was cited in aid. It was further contended that even if the learned judges of the lower court were in error in rejecting the evidence of PW2 and PW3, such error was not substantial to occasion a miscarriage of justice. It was his contention that it is not every error in a judgment that can be fatal, unless such error has resulted in injustice or a miscarriage of justice to the other party. The cases of Agbabraka vs. Saibu (1998) 61 LFCN P. 4632 and Fatubi Vs. Olanlaye (2004) 119 LCRN P.1472 were cited to buttress the submissions supra.
Learned counsel referred to section 55 of the Evidence Act and submitted that the law is trite, documents speak for themselves. That no oral evidence can be admitted to proved contents of document. Therefore, if any document is to be relied on by any party in proving a matter, such documents must be pleaded and produced in evidence before the Court.
Section 55(1) and (2) of the Evidence was relied upon. It was learned counsel’s contention that since the appellant has had made the previous litigation which his father had with PW2 and PW3 as the basis of his claim of title to the land in dispute, he ought to have tendered the judgment in respect of those litigations. Having not tendered the judgments in evidence, the oral evidence of the said witnesses was not admissible. That the learned judges of the rower court were right when they rejected and expunged same in their judgment. The case of Jiaza vs. Bamgbose supra was cited to reinforce his submissions supra.
Whether the provisions of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990, were applicable to the proceedings before the trial Upper Area court not, the answer can be found in section 1(1) and (2) of the Act itself. The Section provides as follows:
“1(1) This Act may be cited as the Evidence Act.
(2) This Act shall apply to all judicial proceedings in or before any court established in the Federal Republic of Nigeria but it shall not apply –
(a) to proceedings before an arbitrator; or
(b) to a field general court martial.”
Section 2(1) of the Evidence Act provides for the interpretation or meaning assigned to certain specific “words” or “terminology” in the provisions of the Act as follows:
“2(1) in this Act, except as the con otherwise requires
…
…
“court”, includes all judges and Magistrates and, except arbitrators, all persons legally authorized to take evidence.”
The proceedings before the trial Upper Area Court can be found on pages 6 – 26 of the record of appeal, Specifically, on page 6 of the record this is what has been recorded:
“Suit No. KUAC/KT/CVFI/32/2002 Case No. KUAC/KT/CVFI/39/2002 Plaintiff … Hamma Tugga, Defendant … Alhmadu Dan-hausa. The Day of the suit 10/6/2002. The Day of the suit 17/6/2A02. The reason for the suit – upon a farm.
The amount for the suit – Retrial Order from High Court – suit No. JUDG/BUAC/BR/CVFI/48/98
Presided By:
M. Baba S. Kolo – Hon. U.A.C Judge Kaltungo
M. Abdul Danbaki – Senior Court Member
M. Azor Usman – Senior Court Member”
Evidence of witnesses were taken and recorded by the trial Court as could be found on pages 8 to 20 of the record of appeal. At the end of the proceedings on page 26, the following signed:
“M. BABA S. KOLE – HON. JUDGE, U.A.C.
M. ABDU DANBAKI – S/COURT MEMBER
M. AZOR USMAN – S/COURT MEMBER
30 – 07 – 2003.”
From the foregoing, it is not in doubt that what was recorded on pages 6 – 26 of the record of appeal was a judicial proceedings as provided for in Section 1(2) of the Evidence Act. The Court that conducted the proceedings was the Upper Area Court, Kaltungo, which is within the Federation of Nigeria, The proceedings was conducted before persons who were designated as JUDGE and COURT MEMBERS, not arbitrator, hence all of them were qualified to be referred to as Court as provided for in – section 2(1) of the Evidence Act. It is to be noted that the trial Upper Area Court was not an Arbitrator nor a field general Court martial. In view of the foregoing it is not in doubt that the provisions of the Evidence Act were applicable to the proceedings before the trial Upper Area Court. I do not therefore subscribe to the contention of learned Counsel to the appellant that the provisions of the Evidence Act where not applicable or binding on the trial Upper Area Court, particularly, Part VI thereof. I therefore hold that the learned judges of the lower Court were absolutely right in relying that the provisions of Part VI of the Evidence Act whereby the evidence of PW2 and PW3 were inadmissible having not been admitted in accordance with the said provisions. Perhaps it is necessary to point out that the Evidence Act, Cap 172 Laws of the Federation of Nigeria, 1990, the applicable law at the time of the hearing before the trial Upper Area Court, there was no Section 2(1)(C) therein. I wonder how learned counsel for the appellant came to rely on section 2(1) (C) of the Evidence Act. The Evidence Act which was in force was that contained in Chapter 172 of the Laws of the Federation of Nigeria. There was no section 1 (2)(C) in the said Act. What was provided therein is Section 2(1) (a) and (b), only.
were the learned judges of the lower court right or justified in rejecting the evidence PW2 and PW3, thereby expunging same from the record of the trial Court. It is settled principle of the law of evidence that where the testimony of a witness or witnesses relates or (relate) to the contents of a written document, oral evidence is inadmissible where such evidence is intended to prove the existence of such documents or its content to be true. See Ziaza V. Bamgbose (1997) 69 LRCN P. 1278.
The principles of law of evidence is trite, where one is relying on a document from which he derives a right or entitlement, such document or instrument must be produced. Oral evidence of such document or instrument can not suffice to prove such right or entitlement. See Jiaza V. Bamgbose supra P. 1308. In the proceedings before the trial Court, the appellant’s witnesses (PW2 and PW3) gave evidence of previous litigation before a court of law wherein his father had litigated over the ownership of the land in dispute with the father of the witnesses. That those litigations were determined in favour of his father. The intendment of the evidence of PW2 and PW3 was to prove that the appellant’s father was adjudged title holder of the land in dispute which he inherited. I am in full agreement with learned counsel to the appellant that oral evidence can not be admitted to prove the existence and or contents of document. See Section 227 of the Evidence Act and the cases of Alao Vs. Alabi (1997) 6 NWLR Pt. 508 P. 381 @ 357 and Jiaza Vs. Bamgbose supra P. 1308. Where reliance is placed on a judgment of a court of law in establishing or proving an issue in dispute, that judgment must be produced and tendered in evidence to enable the court ascertain what was decided in it and its effects on the dispute being resolved by the court.
See section 56(1) and (2) of the Evidence Act and Jiaza vs. Bamgbose supra.
Where an inadmissible evidence has been admitted in a proceedings before a trial court, an appellate court has the power to expunge such evidence on appeal. See Inyang Vs. Eshiet (1990) 5 NWLR Pt. 149 P.178 and Jiaza Vs. Bamgbose (1999) 69 LRCN P.1278 @ 1281.The oral evidence of PW2 and PW3 on the previous litigation over the land in dispute between the appellant’s father and that of the witnesses was not admissible in view of Part IV, Section 132(1) of the Evidence Act applicable at the time, to the proceedings before the trial court. The learned judges of the lower court were right and justified in rejecting and expunging that evidence on appeal. See Inyang Vs. Eshiet and Jiaza vs. Bamgbose supra P. 1281. In the result, i hold that the provision of Part VI of the Evidence Act (which was in force at the time) were applicable to the proceedings before the trial Upper Area Court. The evidence of PW2 and PW3, in so far as it related to the previous litigation over the land in dispute between the appellant’s father and the father of the witnesses, was not admissible. The learned judges of the lower Court were right when they rejected that evidence. But whether the rejection of the evidence of PW2 and PW3 relating to the previous litigations over the land could have warranted or justified the setting aside of the trial Court’s judgment or not, is another issue to be resolved later in this judgment; in view of the provisions of Section 227 of the Evidence Act.
ISSUE TWO (2)
Whether the learned judges of the lower Court were right in evaluating only the evidence of the respondent’s witnesses in holding that such evidence weighed heavier than that of the appellant’s; witnesses, hence he (appellant) did not prove his claim of title to the land in dispute as required by law.
Learned counsel to the appellant did submit that it was not right for the learned judges of the lower Court to only evaluated the evidence of the respondent in arriving at the decision that the respondent’s evidence outweighed that of the appellant. It was his further submission that a trial Court has the duty to consider and evaluate the evidence of both parties to a dispute before taking a decision. That an appellate Court can evaluate evidence on appeal where the trial Court failed to do so, or if done, it was not properly done or it arrived at a wrong conclusion. Learned counsel cited a number of authorities among which are, Umogbai Vs. Aiyemhaba (2002) 8 NWLR Pt.770 P.687; Akinlaye Vs. Eyiyola (1968) NWLR Pt. 92; Woluchem Vs. Gudi (1981) 5 S.C. 291; RTAPM Vs. James (1987) 2 NWLR Pt. 616 P. 556, to buttress his submissions supra. It was his further contention that had the learned judges of the lower Court considered and evaluated the evidence of the appellant together with that of the respondent, they would have arrived at a different conclusion. The Court has been urged to do so, and arrive at a just decision.
Before venturing into the resolution of this issue, that is, whether the learned judges of the lower Court evaluated only the evidence of the respondent in holding that the evidence of the respondent weighed heavier than that of the appellant, it is pertinent to know what is evaluation of evidence; how it is performed; the duties of a trial Court; and when an appellate court can perform such duff should a trial Court fail to do so; or it was done improperly.
On what is evaluation of evidence, this Court, in the case of Eze Vs. Okoloagu & Ors. (2010) 3 NWLR Pt. 1180 P. 183 per Tsamiya, J.C.A., said:
“What is the meaning of the expression evaluation?
Evaluation means the assessment of evidence as to give value and quality to it.”
In Ilorin Vs. Tella (2006) 18 NWLR Pt.1011 P. 267 @ 291, this Court also stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasonable belief of the evidence of one of the contending parties and the disbelief of the evidence of the other party or a reasoned preference of one version of evidence to the other. There must be on record how the Court arrived at the conclusion of preferring one set of evidence to the other. See also Idahosa Vs. Nigerian Army (2004) 2 NWLR Pt.902 P. 356; Olyekolo Vs. Ajibade (2004) 2 NWLR Pt. 875 P. 249 and Onwuka Vs. Ediala (1989) 1 NWLR Pt. 96 P. 182.
In evaluating evidence, the Court must put the totality of the testimonies or evidence adduced by the parties on an imaginary scale and weigh them before coming to a decision as to which evidence it believes or accepts, or rejects and then decide the matter before it on the preponderance of such evidence or on the balance of probability of such evidence. The Court is to see which evidence weighs heavier, not by the number of witnesses that testified, but on the probative value of the testimony of such witnesses. This is what is meant when it is said that a civil case is proved or decided on the balance of probability or on the preponderance of evidence. See Henshaw Vs. Effange (2009) 11 NWLR Pt. 1151 P.66 @ 67; Magaji Vs. Odofin 1978 4 S.C. 91; Woluchem Vs. Gudi (1981) 5 S.C. 281; Omokhafe Vs. Mil. Adm., Edo State (2001) 14 NWLR Pt. 733 P. 290 and Trade Bank Ltd. Vs. Chama (2003) 13 NWLR Pt. 836 P.158.
Did the learned judges of the lower Court evaluate only the evidence of the respondent’s witnesses or of both parties who were on appeal before them, having found that the trial Court did not properly do so before taking a decision? A recourse to the judgment of the lower Court is therefore pertinent at this juncture. On page 44 lines 26 – 36 of the record of appeal the lower Court stated thus:
“Having resolved that the evidence of PW2 and PW3 where it relates to the contents of the documented proceedings was improperly admitted, the trial judge mustn’t taken that evidence into account in his judgment. If not so treated it is the duty of the appeal court to reject it as inadmissible evidence and to consider the case upon the legally admissible available on the record as held by the court of Appeal in Inyang vs. Eshiet (1990) 5 NWLR 178 ratio 1 at 179. With this document the Respondent is left with only his own evidence as PW1 and that part of PW3’s evidence that did not relate to the documented litigation’ That is that aspect of his evidence that relates to the loan of the farm which he said the plaintiff’s father gave him.”
On page 45 lines 6 – 12 of the record, the rower court said:
“The evidence of PW1 and part of PW3’s evidence is in our view sufficient to discharge the burden of proof on the Plaintiff/Respondent or at least place some material evidence on his own side of the imaginary scale, The Defendant who denied the plaintiff’s claim in this case the Appellants now assume the burden of proving a better title. The Appellant who was the Defendant at the trial called the evidence of 7 witnesses in a bid to discharge the shifted burden of proof on to him.”
Again on the same page 45, 2nd paragraph lines 10 – 14 of the record of appeal, the lower court put it thus:
“The forgoing evidence adduced by the Respondent if properly evaluated will no doubt carry more weight that the evidence of PW1 and part of PW3’s evidence when placed on an imaginary scale.”
Finally, on the same page 45, 2nd paragraph lines 19 – 29 and page 46 lines 1 it was concluded thus:
“The trial court was therefore in error and fell in its responsibility of evaluating the evidence adduced before it on reaching the finding of facts and its conclusion. It is a settled law that where there is ample evidence and the trial judge fails to evaluate it and make correct findings, the court of Appeal is at liberty to evaluate such evidence and make proper findings unless the findings rest on credibility of witnesses. See OSHO VS. APF (1998) 60 LRCN 4077 ratio 13 at 4986. There being no challenge posed on the credibility of the witnesses at the trial we hold that the error committed by the trial court has occasioned a serious miscarriage of justice and we deem it appropriate to interfere with the conclusion of the Trial Court.”
In view of the foregoing passages referred to supra of the judgment of the lower Court, can it be said without hesitation that the learned judges of the lower court only evaluated the evidence of the respondent’s witnesses in arriving at the conclusion that the evidence of the respondent’s witnesses weighed heavier than that of the appellant’s witnesses? I do not think so. I am of the affirm view that the learned judges of the lower court adequately considered and evaluated the evidence of both the appellant and the respondent before arriving at their conclusion that the evidence of the respondent and his witnesses were more credible than that of the appellant and his witnesses; hence they allowed the appeal set aside the judgment of the trial court and entered judgment for the respondent. Were the learned judges of the lower court right or justified in re-evaluating the evidence before the trial court on appeal? Generally, the attitude of an appellate court to the evaluation of evidence by a trial court should be that of whether the trial Court properly evaluated the evidence and arrived at a correct decision or not. It is not the method or the manner that necessarily determines the proper or improper evaluation of evidence. So long as the trial Court considered the evidence from both sides, gave reason(s) for accepting one side, and why it rejected the other, and arrived at a decision one way or the other, an appellate Court has no business to interfere or disturb such decision. See Anyafalu v. Agazie (2006) 5 NWLR PT.975 p. 260 @ 280 and Wolachim v. Gudi (1981) 5 S.C. 291.
Where a trial Court unquestionably evaluated the evidence and appraised the facts properly, it is not the business of an appellate court to substitute its own views for the views of the trial court. An appellate court is not to disturb the findings of facts and evaluation of evidence by a trial court simply because it could have done it differently, so long as the judgment of the trial court can be supported by the evidence. It is not the duty of an appellate court to disturb the ascription of probative value to evidence before the trial court, unless there is good and exceptional reasons to do so. See Eze Vs. Okuloagu (2010) 13 NWLR Pt.1150 P.183 @ 218 and Onwuko v. Ediala (1989) 1 NWLR Pt.90 P.182.
Where, however, a trial court abdicated its duty of evaluation of evidence and the ascription of probative value to such evidence or where it is demonstrately shown that it had not done it properly or having done it, came to a wrong conclusion or decision, an appellate Court is in a good position as the trial court to evaluate the evidence and ascribe or approbate value thereto before taking a decision. See Fagbemi v. Anbachi (2002) 7 NWLR pt. 978 P. 172 @ 193; Romaine v. Rumaine (1992) 4 NWLR Pt.288 P.650; Akinola v. Oluwa (1992) SCNJ P. 352; Ebba v. Ogodo (1984) 1 S.C. 372 and Kazeem v. Mosaka (2002) 17 NWLR Pt.1064 P. 523 @ 546.
The learned judges of the lower Court, after reviewing the proceedings before the trial Court came to the conclusion that there was no proper evaluation of the evidence, therefore, the trial Court arrived at a wrong decision which occasioned a miscarriage of justice. That was why the learned judges re-evaluated the evidence and arrived at a decision culminating to allowing the appeal, setting aside the judgment of the trial Court and entered judgment for the respondent. Were the learned judges right or justified in doing so? A recourse to the proceedings before the trial Court is apt for the purpose of resolving this poser. On pages 24 and 25 of the record of appeal, the trial Upper Area Court reviewed the evidence before it. It also made findings and concluded as follows on page 45 lines 30 – 40 of the record of appeal.
“This court is satisfied with the evidence of the plaintiff Hamma Tugga and his counsel and the witnesses of Hamma Tugga which he has presented.
They gave the same evidence that this farm belongs to Hamma Tugga. Then The defendant and his counsel and their witnesses which they have presented before the court. And the witnesses of the defendant give different evidence some said they were given in trust somebody said he was inform somebody said he did not know anything about the farm. Therefore the defendant and his witnesses with the counsel has fail to confirm to the court how Ahmadu Dan-Hausa has posses this farm”.
Based on the evaluation of the evidence and the findings supra the trial Court entered judgment on page 25 lines 43 – 45 as follows:
“Base upon the reasons we have mentioned above.
we gave judgment that we have confirm to Hamma Tugga this farm which he has dragged with Ahmadu Danhausa under the evidence act section 178 of 1971”.
The respondent was not satisfied with the judgment of the trial Court, he appealed to the lower Court. The lower Court, notwithstanding the rejection of the inadmissible evidence of PW2 and PW3 on the previous litigation between the appellant’s father and PW2’s and PW3’s father, found and held as follows on page 45 lines 6 – 10 of the record of appeal:
“The evidence of PW1 and part of PW2 is in our view sufficient to discharge the burden of proof on the plaintiff/respondent or at least place some material evidence on his own side of the imaginary scale. The defendant who denied the plaintiff’s claim in this case the appellant now assume the burden of proving a better title. The Appellant who was the Defendant at the trial called the evidence of 7 witnesses in a bid to discharge the shipped burden of proof on him”.
The learned judges of the lower Court then proceeded to review and evaluate the evidence adduced by the respondent and his witnesses and arrived at the decision on page 45 2nd paragraph lines 10 to 22 thus:
“The foregoing evidence adduced by the Respondent if properly evaluated will no doubt carry more weight that the evidence of P.W1 and part of P.W3’s evidence when placed on an imaginary scale. Furthermore it is on record that when the trial court visited the locus all those defense witnesses who were neighbors and share boundary with the land in dispute were in attendance all of whom stood on their lands. With all this credible and weighty evidence on the Defendant’s Appellant’s side of the scale the trial court ought to have found for the Defendant. The trial court therefore was in error and fell short in its responsibility of evaluating the evidence adduced before it on reaching the finding of facts and conclusion”.
The evidence adduced by the appellant and his witnesses in support of his claim of title to the land in dispute before the trial Court are contained on pages 8 – 10 of the record of appeal. The resume or the gist of their evidence are as follows: PW 1 testified that he has common boundary with the appellant. The appellate inherited the land from his father. His father was farming the land until he died. The land of the appellant on the north. The witnesses’ land on the south. The second witness (PW2) testified that his land on the west. That of the appellant on the east of his farmland. That the land belonged to the appellant. The third witness PW3, is the appellant. He testified that the land belonged to Tugga, the father of Hamma. In 1972 his father Kwara was farming on the land. His father left the land in 1975. He returned to the village having stayed in the town. He requested Tugga to allow him farm the remaining portion of the land. There was dispute between Tugga and Danhausa (the respondent) . Tugga advised him to leave the land.
For the respondent (who was the defendant at the trial Court) seven 7 witnesses testified DW7. DW1 testified that he knew the land in dispute has common boundary with his land which he inherited from his grandfather. When his father died he inherited the land. His land is on the west. That of the respondent on the East. DW3 testified that his land has common boundary with Ahmadu Danhausa (respondent). He is on the South. Ahmadu on the North. Langpan cleared the land. After him his son Tani, after Tani, Danhausa then to his son Ahmadu (respondent). He did not see anybody on the land apart from Ahmadu. DW4 testified that Hamma (appellant) requested him beg Ahmadu Danhausa (respondent) to permit him be on the land until he harvested his crops. That the appellant knew the farmland was not his own. He advised the appellant to see Elders in the village to assist him to speak to the respondent. D.W 5 testified that when he was with Ahmadu, he showed his land. That the appellant did request him to beg Ahmadu to allow him remain on the land till he harvested his crops. DW 6 testified that 32 years ago someone gave him land to farm. The land is on the western part of the land in dispute.
The elder brother of the respondent on the land. DW7 testified that he did not know anything about the land in dispute.
Did the respondent discharge the evidential burden of proof that shifted on to him after the appellant had discharged the initial burden of adducing evidence in support of his claim! The law is well settled, in a claim for declaration of title to land based on inheritance from ancestors, the claimant must adduce evidence on the names or the history of the several progenitors. He is expected to narrate the genealogical tree from the original owner, the ancestors and generations appurtenant to him down the line to him. He must show by evidence who those ancestors of his were and how they came to found and or own the land which eventually passed on to him. This principles of law applies to both the plaintiff and the defendant. See Ibikunle V. Lawani (2002) 3 NWLR Pt.1022 p. 580 @ 598; Lawal V. Olufowobi (1996) 10 NWLR Pt. 477 P. 179; Odi v. Iyara (2004) 8 NWLR Pt.875 P. 283; Eze v. Alasie (2000) 10 NWLR pt. 676 p. 470 and Onyido v. Ajemba (1991) 4 NWLR Pt.184 P.205.
In Nikor v. Ogwo (2010) 5 NWLR. Pt. 1187 P.281 @ 299, this court held that a party relying on evidence of traditional history or inheritance is required to show by evidence who those ancestors of his were and how they came to own or posses the land which eventually passed to him. Therefore, in order to establish title, a claimant must prove the following by credible evidence (i) who founded the land in dispute (ii) how they founded the land (iii) the particulars of the intervening owners through whom he claim title. See also Ohiaeri v. Akabeze (1992) 2 NWLR Pt. 221 P. 1; Akinloye v. Eyigulo (1968) 4 NWLR Pt.18 P.92; Magaji v. Cadbury (Nig). Ltd. (1985) 2 NWLR Pt. 7 P.393 and Elegahin v. Oseni (2005) 14 NWLR Pt. 945 P. 348.
By the evidence of DW1, DW2, DW3, DW4, DW5 and DW6, the resume or gist or which have been stated supra, the respondent has had discharged the evidential burden of proof that had shifted on to him after the appellant had discharged the initial burden of proving his title to the land in dispute. This is so because the evidence of the appellant did not establish how he came to acquire title to the land in dispute in that he did not prove who founded the land, who his ancestors were as required by law. The learned judges of the lower court were therefore right or justified in re-evaluating the evidence and having found that the evidence of the respondent weighted heavier than that of the appellant allowed the appeal, set aside the judgment of the trial Upper Area court and entered judgment in favour of the respondent. The evaluation of the evidence and the decision of the learned judges of the lower Court can not be faulted. This issue is therefore resolved against the appellant.
The net result is that the appeal of the appellant fails. The judgment of the lower Court is hereby affirmed. The sum of N30,000.00 is hereby accessed and awarded to the respondent as cost of the appeal.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree with the judgment just delivered by my learned brother BDLIYA, JCA.
The appeal is hereby dismissed. I also agree with order on costs as made by my Lord.
Appearances
C. D. KADALA Esq.For Appellant
AND
DAVID N. JANAKAM Esq,For Respondent
