MR. HENRY OGBOMO v. MR. TOSAYE OGBOMO & ANOR
(2014) LCN/6989(CA)
RATIO
PRACTICE AND PROCEDURE: WHETHER THE FACTS DEFINE THE ISSUES BEFORE THE COURT WHEN A PLEADING IS AMENDED
I agree with learned for the defence that when a pleading is amended the fact or facts amended no longer defines the issues before the court…Salami V. Oke 1987 5 NWLR (Part 63) 1 at 9…I have in the light of the above authority upheld the submission of learned defence counsel that Exhibit M is no longer relevant in the determination of this case. DW1 was in my view heavily discredited. He tendered Exhibit M which has become irrelevant in this proceeding which covered a smaller portion of land than the one stated in his ipsi dixit. I regard his evidence with a pinch of salt and this court regrettably cannot ascribe any probative value to this witness or his evidence. See pages 135 (lines 12-20) and 136 (lines 1-5) of the Record. Per Ibrahim Mohammed Musa Saulawa, J.C.A
COURT: POWER OF AN APPELLATE COURT TO SET ASIDE OR REVERSE THE DECISION OF THE TRIAL COURT
It is indeed a trite principle, that findings of a trial court that are obviously borne out of credible evidence on the accord and laid down rule of law, should not ordinarily be set aside by an appellate court. However, such findings of a trial court are liable to be set aside if they are proved to be either perverse, or unsupported by some credible evidence. See ENANG VS. ADU (1981) 11-12 SC 25; THEOPHILUS VS. STATE (1996) 1 NWLR (Pt. 423) 139; IGBI VS STATE (2000) 3 NWLR (Pt. 648) 169; AGBAJE VS. ADIGUN (1993) 1 NWLR (Pt. 269) 261; ANPP VS. REC AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453; ANOUA VS AG LAGOS STATE (2010) 15 NWLR (Pt. 1216) 365 @ 243-244 paragraphs H-A. It must be reiterated, for the avoidance of doubt, that the exercise of the discretionary power of an appellate court to set aside or reverse the decision of a trial court is not merely a matter of course. It is imperative for an Appellant challenging the evaluation of evidence or facts to advance cogent reasons showing that the findings of the trial court are perverse and unsupported by the evidence on record. This trite doctrine has over the years been reiterated in a plethora of authorities by the Apex Court and duly upheld by the Court of Appeal. In one of such authorities, the Supreme Court emphatically reiterated the trite principle, to the effect that – There are very strict limitations on the power of the Court of Appeal to set aside or reverse the decision of the trial Judge on issues of fact. These have been well set out by Baggaly, JCA and also in the Giannibanta (1876) 1 D.D. 283 at 287 and also by Lord Summer in the Honest-room (owners of) (1927) AC. 37. I need not repeat them here; suffice it to say that when, as here, the decision of the trial Judge is based mainly and substantially on this assessment of the quality and credibility of witnesses who testified before him, a Court of Appeal “must in order to reverse, not merely entertain doubts whether the decision below is right but be convinced that it is wrong”. See WOLUCHEM VS. GUDI (1981) 5 SC 291 @ 295 -296, per Idigbe JSC. See also EBBA VS OGODO (1984) 1 SC 372; MOGAJI VS. ODOFIN (1978) 4 SC 91.
In the instant case, the Appellant has woefully failed in establishing that the evaluation and assessment of facts vis-a-vis evidence by the lower court was perverse. Contrariwise, there are every cogent reasons to compel me to hold that the lower court has meticulously evaluated the totality of the evidence, both ipsi dixit and documentary, adduced at the trial prior to the arriving at the inevitable conclusion in entering Judgment for the Respondents, and dismissing the Appellant’s counter-claim in question. Thus, the said Issue No. 6 is equally hereby resolved against the Appellant. Per Ibrahim Mohammed Musa Saulawa, J.C.A
