CHIEF IMAFIDON ERO & ORS v. PETER UWAGIE ERO & ORS
(2018)LCN/12065(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of January, 2018
CA/B/202/2012
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“Evaluation of evidence simply means the assessment of evidence so as to give value or quality to such evidence. A Court is duty bound to evaluate the whole evidence adduced by parties before coming into any conclusion. See ONWUKA V. EDIALA (1989) 1 NWLR (Pt. 96) 182 at 206; CHIEF NIYI AKINTOLA V. BURAIMOH L. BALOGUN & ORS. (2000) 1 NWLR (Pt. 642) 532 at 549. It is therefore suffice to say that the evaluation of evidence called at the trial, the ascription of probative value to them and making primary finding on them are matters within the province of the Court of trial which has the singular advantage or is preeminently placed to hearing the witnesses testify and watching their demeanours. See the following cases: BALOGUN & ORS V. ALIMI AGBOOLA (1974) 1 ALLNLR (Pt.2) 66; OSAZUWA V. ISIBOR (2005) FWLR (Pt. 194) 387 at 407; NBN LTD V. UCH LTD (2004) ALLFWLR (Pt. 204) 155; NKPA V. NKUME ( 2001) 6 NWLR (Pt.710) 543; OSINOIKI V. ILEKUN (2003) FWLR (Pt. 161) 1768.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: ORAL EVIDENCE
“It is trite that oral evidence shall in all cases be direct. If it refers to:
(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact.
(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact.
(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who say he perceived that fact by that sense or in that manner.
(d) If it refers to an opinion or to the ground on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. (See Section 126 of the Evidence Act 2011).
It is also trite that the evidence of a statement made to a witness as in this appeal at hand by a person who is not himself called as a witness may and may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made. See the old case of SUBRAMANIAM V. PUBLIC PROSECUTOR (1956) 1 WLR 965; OJO V. GHARORO (2006) ALL FWLR (Pt. 316) 197 at 217.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
EVIDENCE: HEARSAY EVIDENCE
“Let me add, hearsay evidence is all evidence which does not derive its value from the credit given to the witness himself but which rest also, in part on the veracity and competence of some other person. See JUDICIAL SERVICE COMMITTEE BENDEL STATE V. OMO (1990) 6 NWLR (Pt. 157) 407; JOLAYEMI V. OLAOYE (2004) 12 NWLR (Pt. 887) 322; AWUSE V. ODILI (2005) ALL FWLR (Pt. 261) 248.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
(1) CHIEF IMAFIDON ERO
(2) MR. OLU ERO
(3) IMUETINYAN UWAGIE ERO
(4) ROLAND ERO
(5) EDWARD OMORUYI ERO Appellant(s)
AND
(1) PETER UWAGIE ERO
(2) PATRICK UWAGIE ERO
(3) MRS. ANGELINA OMIGIE (Nee Uwagie Ero) Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A.(Delivering the Leading Judgment):
The appeal stem from the decision of the High Court of Justice, Edo State, Benin Judicial Division, holding at Auchi, delivered on the 16th day of June 2010 in Suit No. B/525/2004 wherein the Respondents as Plaintiffs claimed against the Appellants as defendants.
At paragraph 33 of the statement of claim, the Respondents as plaintiffs before the trial Court sought for the following reliefs (see pages 6-7 of the record of appeal).
WHEREFORE the plaintiffs claimed against the defendants as follows:
(1) A declaration that given the fact that the late Pa John Orhue Agbonrobosa Uwagie Ero never accepted the 2nd defendant as a child but consistently throughout his life time denied paternity, the 1st, 3rd, 4th and 5th defendants cannot under Bini Native Law and Custom impose the 2nd defendant as the 1st son and head of the late Pa John Orhue Agbonrobosa Uwagie Ero?s branch of the Ero family.
(2) A declaration that considering that the 2nd defendant knew that he was not accepted as a child by the late Pa John Orhue Agbonrobosa Uwagie Ero and he waited for over 70 years without contesting the issue, he, the 2nd defendant is now estopped from contesting and claiming to be the 1st son of the said late Pa John Orhue Agbonrobosa Uwagie Ero.
(3) A declaration that whatever program or activities the 2nd defendant as aided by the 1st , 3rd , 4th and 5th defendants may purport to have carried out in the guise of the burial of the late Pa John Orhue Agbonrobosa Uwagie Ero is null, void and of no legal consequence same being in violation of Ero family tradition and Bini native (sic) and custom.
(4) A perpetual injunction restraining the 2nd defendant from parading himself as the 1st son that survived the late Pa John Orhue Agbonrobosa Uwagie Ero or laying claim to exercising or asserting any of the benefits, rights or privileges appertaining to the status of 1st son of late Pa John O. A. Ero.
(5) A perpetual injunction restraining the 1st, 3rd, 4th and 5th defendants from recognizing or continuing to recognize the 2nd defendant as the 1st son that survived the late Pa John Orhue Agbonrobosa Uwagie Ero or according him the benefits, rights or privileges appertaining to that status.
In opposing the claims of the Plaintiffs/Respondents, the Defendants/Appellants filed a joint statement of defence of 38 paragraphs.
The plaintiffs/Respondents filed a reply to the statement of defence and defence to counter claim.
Consequent upon the joining of issues by parties, the matter went through full trial and in the end, judgment was entered in favour of the plaintiffs/respondents and against the appellants in the following terms. (See pages 89-111 and in particular pages 110-111).
I therefore enter judgment in favour of the plaintiff. I make the following declarations:
(1) That giving the fact that the late Pa John Orhue Agbonrobosa Uwagie Ero never accepted the 2nd defendant as a child but constantly throughout his lifetime denied paternity, the 1st, 3rd, 4th and 5th defendants cannot under Bini Native Law and Custom impose the 2nd defendant as the 1st son and head of the late Pa John Orhue Agbonrobosa Uwagie Ero’s branch of the Ero family.
(2) That considering that the 2nd defendant knew that he was not accepted as a child by the late Pa John Orhue Agbonrobosa Uwagie Ero and he waited for over 70 years without contesting and claiming to be the 1st son of the said late Pa John Orhue Agbonrobosa Uwagie Ero.
The declaration sought for in paragraphs 33(3) of the plaintiffs’ statement of claim is unnecessary and irrelevant.
Consequently, I further declare that the 1st plaintiff is the acknowledged 1st son of the late Pa John Agbonrobosa Uwagie Ero by virtue of his declaration in Exhibit B and other evidence adduced which I accept.
I therefore make the following orders:
(1) I order a PERPETUAL INJUNCTION RESTRAINING the 2nd defendant from parading himself as the 1st son that survived the late Pa John Orhue Agbonrobosa Uwagie Ero or laying claim to, exercising or asserting any of the benefits, rights or privileges appertaining to the status of 1st son of late Pa John Orhue Agbonrobosa Uwagie Ero.
(2) I order a perpetual injunction restraining the 1st, 3rd, 4th and 5th defendants from recognizing or continue to recognize the 2nd defendant as the 1st son that survived the late Pa John Orhue Agbonrobosa Uwagie Ero or according him the benefits, rights, privileges appertaining to that status.
Dissatisfied with the outcome of the trial hence this appeal which is initiated by the notice of appeal dated and filed on the 13th day of September 2010 containing seven grounds. I herein under reproduce the grounds of appeal but without their particulars.
GROUNDS OF APPEAL
(1) The learned trial judge erred in law in refusing to re-open the case of the defendants/appellants to enable them tender some documents which were important for the determination of the case.
(2) The learned trial judge erred in law when he held at pages 15-16 of his judgment regarding the evidence of DW1 thus:
”Apart from stating that 2nd defendant is the son of Ero, her evidence is considered by me as very unhelpful to the 2nd defendant’s case. She did not state there was any oath administered on her by Ero’s family in the life time of Pa John Uwagie Ero or at his death. She denied any controversy surrounding 2nd defendant’s paternitystrangely she never referred to her son as the 1st son of John Uwagie Ero. She did not impress me as truthful as she was evasive and non committal. I find that for someone whose son’s paternity was in issue, DW1 was unimpressive and sounded unconvincing. She was in fact reluctant and appeared pressured to be in Court to testify falsely.”
(3) The learned trial judge erred in law when he held as follows at page 16 of his judgment:
”The evidence of 1st and 5th defendants that DW1 was taken before the Ero family shrine where she took oath is hearsay evidence and cannot be acted upon. However DW1 who is the principal actor in the oath taking ceremony herself gave no such evidence in confirmation. Thus making the hearsay evidence as to her oath taking before the family of Ero unreliable and incredible.”
(4) The learned trial judge erred in law when he held at page 18 of his judgment thus:
”In the case at hand the conduct of the late Pa John Uwagie Ero in writing Exhibit A in 1935 and Exhibit B in 1968 confirm that no such arbitration took place and the matter was rested after the denial. This can be inferred also from the conduct of the defendants in trying to conduct another oath taking ceremony after the death of Pa John Uwagie Ero in 2004. If indeed there was a resolution of the matter at the first oath taking ceremony as given in hearsay evidence by the defendants then it stands to reason that it should not again arise.”
(5) The learned trial judge erred in law when he held at page 20 of his judgment as follows:
”The DW1’s evidence that the late John Uwagie Ero was visiting them and strolling with the 2nd defendant cannot be convincing as she also stated that 2nd defendant grew up in the north. This supports the evidence by the plaintiffs that there was no social link between the 2nd defendant and their late father. In the light of the above, I find that the evidence led by the plaintiffs is more credible, believable and unshaken. That the issue of paternity of 2nd defendant was settled by their late father when in 1968, he prepared and deposed on oath the names of his children born then and excluded the name of the 2nd defendant. Exhibit B has not been jettisoned.”
(6) The learned trial judge erred in law when he declared 1st plaintiff/Respondent the 1st son of late Pa John Uwagie Ero when it was not one of the reliefs sought by the plaintiffs/Respondents in their writ of summons and statement of claim.
(7) The judgment is against the weight of evidence.
RELIEF SOUGHT
An order setting aside the judgment of the lower Court and in its place allow the appeal and grant the relief sought by the Appellants in their counter claim. Alternatively, allowing the appeal and remitting the case back to the lower Court to be heard by another judge.
Consequent upon the transmission of the record of appeal and the granting of the order deeming it as properly compiled and transmitted by this Court on the 17th day of June 2015, the Appellants filed their brief of argument on the 7th day of July 2015. The Respondents? brief of argument was filed on the 4th day of May 2016 and deemed as properly filed and served on 23rd March 2017. Both counsel adopted and relied on their respective brief of argument.
The Appellants in their brief of argument put forward the following issues for determination.
APPELLANTS ISSUES FOR DETEMINATION
(1) Whether the learned trial judge was right in refusing to exercise his discretion in favour of the Appellants in their application to re-open the case to enable them tender as exhibit some documents which had been tendered for identification purposes as well as one other which had just been found after the close of evidence. (Ground 1)
(2) Having regard to the evidence of DW1 both in chief and under cross examination, whether it was appropriate for the learned trial judge to label her as evasive and therefore not a witness of truth. (Ground 2)
(3) Whether the evidence of 1st and 5th defendants was hearsay evidence and therefore could not be acted upon. (Ground 3)
(4) Whether DW1 was in any position to challenge the contents of Exhibits ‘A’ and ‘B’ having regards to the circumstance in which both documents were made (Ground 4)
(5) Whether the evidence that 2nd Appellant grew up in the North supports the evidence of the Respondents that the late Pa John Uwagie Ero never interacted at any time with the 2nd Appellant as a child. (Ground 5)
(6) Whether it was within the competence of the learned trial judge to grant a declaration that the 1st Respondent was the first surviving son of late Pa John Uwagie Ero when it was not one of the reliefs sought by the Respondents as plaintiffs. (Ground 6)
(7) Whether the judgment of the lower Court could be said to be a proper outcome of the evidence before the lower Court. (Ground 7)
RESPONDENTS’ ISSUES FOR DETERMINATION
The learned counsel representing the Respondents adopted the issues distilled by the Appellants as theirs for the determination of the appeal.
In the Respondents adopted brief of argument, he gave notice of preliminary objection challenging the competence of grounds 1, 2, 4, 5 and 6 of the Appellants’ grounds of appeal as well as the issues framed thereto. The objection is predicated on six grounds. But inadvertently, the learned counsel representing the Respondents omitted to move the notice of preliminary objection before the Appellants adopted their brief of argument and hence the said preliminary objection is deemed abandoned and same be and is accordingly struck out.
Having struck out the notice of preliminary objection, I will proceed with the resolution of the issues distilled by the Appellants and adopted by the Respondents for the determination of this appeal.
I have carefully read all the processes filed by parties and consequent upon which I will proceed to consider the issues put forward by the Appellants for the determination of this appeal. I will also adopt the pattern set out in the brief of the learned counsel representing the appellants. That is, taking first issue one and after issues 2, 3, 4 and 5 would be taken together and issues 6 and 7 respectively would be taken thereafter.
ISSUE 1
Whether the learned trial judge was right in refusing to exercise his discretion in favour of the Appellants in their application to reopen the case to enable them tender as exhibits some documents which had been tendered for identification purposes as well as one other which had just been found after the close of evidence.
The contention of the Appellants under this issue is against the refusal of the learned trial judge of the application by the Appellants to reopen their case after the close of evidence and adoption of written addresses. It is against the refusal that they accused the learned trial judge of not exercising the Court’s discretion judicially and judiciously. The quest of the Appellants in making the application was to tender some document which they said they discovered in the house of late Pa John Uwagie Ero and which documents will throw more light on Exhibits ‘A’ and ‘B’ already tendered by the Respondents and also some photographs tendered and admitted for identification purposes, marked as ID1-ID5. He relied on the cases of KANO ILE PRINTERS PLC V. G & H (NIG) LTD. (2002) 2 NWLR (PT. 751) 420 at 461; WAKWAH V. OSSAI (2002) 2 NWLR (PT. 752) 548 at 563.
He contended that the application of the defendants/appellants did not amount to having a second bite at the cherry if the lower Court had exercised its discretionary powers judicially and judiciously. He argued that if the learned trial judge had not refused the application the documents sought to be tendered would certainly have had a profound effect on the case as it would have enabled the lower Court do substantial justice in the matter. He relied on the cases of KASUNMU V. SHITTA-BEY (2006) 17 NWLR (PT. 1008) 372 at 431-432; ACHI V. EBENIGHE (2014) 4 NWLR (PT. 1397) 380 at 406-407; AJUWA V. S.P.D.C. NIG. LTD. (2011) 17 NWLR (PT. 1279) 797.
He accused the Court of relying on extraneous matters in coming to the decision. He added that the Court was also sentimental and emotional while considering the facts. He relied on SULEMAN V. C.O.P., PLATEAU STATE (2008) 8 NWLR (PT. 1089) 29; CHIEF OJAH & ORS. V. CHIEF OGBONI & ORS. (1976) 1 ALL NLR (PT. 1) 346.
He argued that the learned trial judge did not take into cognizance the fact that apart from the reply to exhibit ‘A’ the other documents tendered for identification purpose only was the mistake of counsel. He submitted that it is now well established as a matter of practice that the mistake of counsel should not be visited on his client if the mistake can be corrected while proceedings in the case are still on. He relied on ALSTHOM S.A. V. SARAKI (2000) 80 LRCN 2950 at 2969; AKINYELE V. THE APPRAISER (1971) ALL NLR 162; ONONAKU V. AKUBUE (2009) 5 NWLR (PT. 1165) 539 at 550. He urged the Court to resolve this issue in favour of the Appellants.
The Respondents reaction to this issue is that the trial judge exercised his discretion judiciously in not allowing the Appellants as Defendants at the Court below to reopen their case after counsel to parties had addressed the Court and the case adjourned for judgment. He argued that equity does not assist the indolent. He added that the case for the Appellants as Defendants at the trial Court was conducted in a manner that was extremely tardy and indolent and as a result they were foreclosed on the 21st June 2009 and was later allowed to reopen their case on the 14th October, 2009. It was on the 19th January, 2009 that the Appellants voluntarily closed their case. He submitted that it is therefore not correct to assert that the Appellants were not given ample opportunity to present their case. He argued that the rule that a litigant should not be made to suffer because of the negligence of his counsel will not extend to a situation where counsel has displayed tardiness and incompetence.
He relied on the case of EMMANUEL V. GOMEZ (2009) 7 NWLR (PT. 1139) P. 1 at P. 13, paras. A-B. He cited some examples of tardiness of the Appellants counsel by failing to exhibit or attach to his supporting affidavit the alleged letter containing the reply by Rev. Payne to the late Pa John O. A. Uwagie-Ero’s letter (Exhibit A). He argued that a party seeking the exercise of the Court discretion in his favour must place before the Court sufficient material to do so.
He relied on the case of N.A. WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 at 154-160.
He submitted that Courts are not allowed to indulge in speculation over the contents of a documents. He relied on the case of ATC & ORS. V. QUORUM CONSORTIUM (2009) 172 LRCN P. 134 at P. 175 (para. U)
Finally, he urged the Court to discountenance the submission of learned counsel on this issue and hold that in view of the tardiness and indolence exhibited by counsel at the lower Court, it is an appropriate instance where the rule that a litigant should not be punished for the mistake or inadvertence of his counsel does not apply. He urged the Court to resolve this issue against the Appellants.
Considering the foregoing argument of respective counsel on this issue, the germane question is whether or not the learned trial judge properly judicially exercised the Court?s discretion when he refused the application by the Appellants to reopen their case at the stage after the adoption of final address and the case adjourned for judgment?
Discretion in the legal parlance means equitable decision of what is just first and proper under the circumstances or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. See the Blacks Dictionary of Law, 5th Edition page 419 and the following cases of DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AJUWA & ANOR. V. S.P.D.C. (2011) 17 SC (PT. 14) 118 at 155-156; ARTRA INDUSTRIES NIG. LTD. V. N.B.C.I (1998) 3 SC 98 at 118-119.
In the case of AKIN AKINYEMI TRADING UNDER THE NAME & STYLE OF AKIN AKINYEMI ASSOCIATES V. ODUA INVESTMENT CO. LTD. NSCQR VOL. 49 (2012) 405, the apex Court said the following about Discretion and I quote hereunder: ”Discretion they say knows no bound. In its general usage, it is that freedom or power to decide what should be done in a particular situation.”
William C. Burton in his Burton’s Legal Thesaurus (2007) 4th Edition, McGrand Hill, New York, assigned the general meaning of the word to include: analysis, appraisal, assessment, choice, consideration, contemplation, decision, designation, determination, discrimination, distinction, free decision, free will, freedom of choice, option, optionality, permission, pick, power of choosing, receiving, right of choice, sanction, selection, self determination, suffrage etc.
In the case of IBEGWURA ORDU AZUBUIKE V. PDP & ORS. LPELR (2014) SC 476/2012, Fabiyi, JSC said thus; ”Discretion is a matter of being discrete?. See also HALIRU V. FRN (2008) ALL FWLR (PT. 425) 1697 at 1726-1727.
Having said the foregoing and considering the circumstances leading to this issue one, it is my candid view that the trial Court put into consideration the facts and circumstances of the application by the Appellants to reopen their case. It is clear and not in dispute that the first witness of the Respondent (4th Plaintiff) testified on 24th day of July 2006. Through her, Exhibits ‘A’ and ‘B’ were tendered. She was cross examined. The defendants opened their defence on 15th January, 2008 and closed same on 19th January 2010. All these while the Appellants did nothing about Exhibits ‘A’ and ‘B’. The case was then adjourned to on 16th March, 2010 for address.
They claimed to have made a discovery after the demise of Pa John Orhue Agbonrobosa Uwagie Ero who died on 21st July 2004. The suit itself was instituted in 2004. If the 1st witness who tendered the exhibits in question which the Appellants claimed they wanted to challenge testified in 2006, two years after the demise of Pa John Orhue Agbonrobosa Uwagie Ero, it does not stand to reason to suggest that the Appellants are diligent. Further to this document which they are struggling to bring in, and which is said to have been made by Rev. Payne, they did not make known of the existence or otherwise of Rev. Payne. All these put together suggest to me that the Appellants did not put before the Court any convincing fact to warrant the exercise of the Court’s discretion in their favour.
I cannot but agree with the submission of the learned counsel representing the Respondents that they are guilty of tardiness. The exercise of judicial discretion by a Court is bounded by the rules and principles of law and not giving effect to the will or private opinion nor humour. It must be exercised judicially and judiciously. It is always exercised based on the fact presented to Court hence it is not immutable.
It is trite that the Appellate Court will not interfere with a proper exercise of discretion of a lower Court. A judgment or order of a Court based on discretion by the learned judge can only be interfered with on the grounds that;
(1) The discretion was not exercised in accordance with law;
(2) That the decision of the lower Court is perverse;
(3) Where the lower Court acted under the misapprehension of law;
(4) Where the lower Court acted under a misapprehension of the fact;
(5) where the lower Court omitted to take into account matters that are relevant;
(6) where the discretion is exercised on wrong or inadequate materials;
(7) where it is in the interest of justice to interfere to prevent miscarriage of justice.
See the cases of ALHAJI MOHAMMED MAIN WAZIRI V. IBRAHIM TAHIR GUMEL & ANOR. (2012) LPELR 7816; IDEOZU V. OCHOMA (2006) 4 NWLR (PT. 970) 364.
In my candid view, the learned trial judge cannot be found wanting in the exercise of the Court?s discretion in relation to the application of the Appellants. Accordingly, I answer the question in the affirmative and resolve this issue one against the Appellants.
ISSUES 2, 3, 4 AND 5 (GROUNDS 2, 3, 4 AND 5)
These issues would be taken together. I herein under reproduce issues 2, 3, 4 and 5 and thereafter examine the grounds for purposes of better understanding:
ISSUE 2
Having regard to the evidence of DW1 both in-chief and under cross examination, whether it was appropriate for the learned trial judge to label her as evasive and therefore not a witness of truth. (Ground 2)
ISSUE 3
Whether the evidence of 1st and 5th defendants was hearsay evidence and therefore could not be acted upon. (Ground 3)
ISSUE 4
Whether DW1 was in any position to challenge the content of Exhibits ?A? and ?B? having regard to the circumstances in which both documents were made. (Ground 4)
ISSUE 5
Whether the evidence that 2nd Appellant grew up in the North supports the evidence of the Respondents that late John Uwagie Ero never interacted at any time with the 2nd Appellant as a child. (Ground 5)
Now the grounds:
GROUND 2
This ground challenge the finding of the Court in pages 15- 16 of the judgment on the evidence of DW1 on issue of oath taking on the paternity of the 2nd defendant.
GROUND 3
This ground is questioning the finding of the Court stating that the evidence of the 1st and 5th defendants are hearsay evidence and that DW1 did not say anything about the oath taking in her evidence.
GROUND 4
The findings of the Court leading to this ground is predicated on the making of Exhibit A in 1935 and Exhibit ?B? in 1968 and which the Court said negate the issue of arbitration which the Appellants alleged took place.
GROUND 5
This is challenging the finding of the Court rejecting the evidence of DW1 stating that late Pa John Uwagie Ero was visiting them and strolling with the 2nd defendant which was juxtaposed with her evidence that the 2nd defendant grew up in the North and the evidence of the plaintiffs stating that there was no social link between their late father and the 2nd defendant.
The Respondents’ reaction to the foregoing allegations are in the negative. I have carefully perused the argument of respective counsel on the four issues and grounds. Having identified that the complaints can be classified under the heading evaluation of evidence, I would proceed to examine the complaints without reproducing the argument of respective counsel.
My understanding of the complaints tends to challenge the finding of the Court as it relates to the evidence of DW1 on the paternity of 2nd defendant, the classification of the evidence of 1st and 5th defendants on oath taking as hearsay, the issue of Exhibits ‘A’ and ‘B’ and the issue of social link between 2nd defendant and the late Pa John Uwagie Ero. The question that readily come to mind in the circumstance of the foregoing issues and grounds of appeal is whether or not the learned trial judge of the Court below properly evaluated the evidence placed before the Court before making those findings and conclusions.
Evaluation of evidence simply means the assessment of evidence so as to give value or quality to such evidence. A Court is duty bound to evaluate the whole evidence adduced by parties before coming into any conclusion. See ONWUKA V. EDIALA (1989) 1 NWLR (Pt. 96) 182 at 206; CHIEF NIYI AKINTOLA V. BURAIMOH L. BALOGUN & ORS. (2000) 1 NWLR (Pt. 642) 532 at 549. It is therefore suffice to say that the evaluation of evidence called at the trial, the ascription of probative value to them and making primary finding on them are matters within the province of the Court of trial which has the singular advantage or is preeminently placed to hearing the witnesses testify and watching their demeanours. See the following cases: BALOGUN & ORS V. ALIMI AGBOOLA (1974) 1 ALLNLR (Pt.2) 66; OSAZUWA V. ISIBOR (2005) FWLR (Pt. 194) 387 at 407; NBN LTD V. UCH LTD (2004) ALLFWLR (Pt. 204) 155; NKPA V. NKUME ( 2001) 6 NWLR (Pt.710) 543; OSINOIKI V. ILEKUN (2003) FWLR (Pt. 161) 1768.
I have carefully read all the depositions of witnesses before the trial Court, and in particular that of DW1, 1st and 5nd Defendant on the issue of the paternity of the 2nd Defendant and the oath taking. Throughout the testimony of DW1, she never say that she took any oath at the time of her conception or after delivery. Equally the 1st and 5th Defendants who seemingly alluded to issue of oath taking said they were not present at the venue of the oath taking but that they were told by their father or someone else. See pages 55, 62 ? 64 of the Record of Appeal.
It is trite that oral evidence shall in all cases be direct. If it refers to:
(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact.
(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact.
(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who say he perceived that fact by that sense or in that manner.
(d) If it refers to an opinion or to the ground on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. (See Section 126 of the Evidence Act 2011).
It is also trite that the evidence of a statement made to a witness as in this appeal at hand by a person who is not himself called as a witness may and may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made. See the old case of SUBRAMANIAM V. PUBLIC PROSECUTOR (1956) 1 WLR 965; OJO V. GHARORO (2006) ALL FWLR (Pt. 316) 197 at 217.
Let me add, hearsay evidence is all evidence which does not derive its value from the credit given to the witness himself but which rest also, in part on the veracity and competence of some other person. See JUDICIAL SERVICE COMMITTEE BENDEL STATE V. OMO (1990) 6 NWLR (Pt. 157) 407; JOLAYEMI V. OLAOYE (2004) 12 NWLR (Pt. 887) 322; AWUSE V. ODILI (2005) ALL FWLR (Pt. 261) 248.
The testimony of the 1st and 5th Defendant in my humble view is to establish the truth of oath taking and paternity of the 2nd Appellant. In the contest of the fact in dispute before the trial Court, it cannot be described in any other way than an hearsay evidence. I accordingly so hold.
The issue of the link between the 2nd Defendant and late Pa. John Orhue Agbonrobosa Uwagie Ero, cannot be substantiated having regard to the time Exhibit A & B were made. They all came into existence long after the alleged conception and delivering of the 2nd Defendant. Just as the learned trial Judge rightly and properly concluded that, by those two documents, it is obvious that the said late Pa. John Uwagie Ero never claim the paternity of the 2nd Defendant nor went through the ordeal of any oath taking. Neither did the alleged oath taking by DW1 took place in his presence. Having said all these, I am left in no doubt that the learned trial Judge properly evaluated the evidence placed before the Court before coming to those findings and conclusion complained against. It is trite that an appellate Court would ordinarily not interfere with the findings of a trial Court where that Court has carried out its duty of evaluating the evidence before it and ascribing probative value thereto.
While I answer the question in the affirmative, I resolve issues 2, 3, 4 and 5 against the Appellants.
ISSUE 6
Whether it was within the competence of the learned trial Judge to grant a declaration that the 1st Respondent was the first surviving son of late John Uwagie Ero when it was not one of the reliefs sought by the Respondents as Plaintiff. (Ground 6.)
The contention of the Appellants is that, in view of the reliefs claimed by the Respondents before the trial Court and which can be found in pages 6 – 7 of the record of appeal and which are well set out, it did not include a declaration that the 1st Plaintiff/Respondent is the acknowledged 1st son of late John Uwagie Ero and hence submitted that the learned trial Judge was in error. He argued that it is trite that a Court of law has not got the power to grant to a party what he did not ask for because the Court is not a charitable institution.
He relied on the case of HARKA AIRSERVICES LTD V. KEAZOR (2006) 1 NWLR (Pt. 960) 160 at 186 – 187. He added that where a party has proved the case to be entitled to the reliefs claimed, it is incumbent on the trial Court to grant the reliefs in the same manner in which they were sought in the pleading. He relied on EKPENYONG V. NYONG (1975) 2. SC. 71.
On the part of the Respondent is the argument that the Court has the power to grant consequential reliefs even when they are not claimed as long as there is evidence on record to support it and the justice of the case demands. He relied on Order 47 Rule 1 of the Bendel State High Court (Civil Procedure) Rules 1988 which was in force when the suit was instituted. He also referred to paragraph 1 of the statement of claim. Added to this he referred to paragraph 2, 3 and 4 of the joint statement of Defence at pages 13 of the Record of Appeal where in the Appellant denied the averment that the 1st Plaintiff is the 1st male child of late Pa. John Orhue Agbonrobosa Uwagie Ero and contended that the 2nd Appellant is the 1st son. Since issues were joined on the issue, the Court can make the declaration. He relied on the case of ESSIEN V. ESSIEN (2009) 9 NWLR (Pt.1146) P.306 at P. 340 para D-E. He urged the Court to hold that the consequential order made by the trial Court in favour of the 1st Respondent was quite in order since it is from the pleadings and evidence before the Court and the justice of the case demanded it.
The question here is whether or not the Court can make the declaratory order that the 1st Respondent is the 1st son of Pa. John Uwagie-Ero.
I have looked at the claim by the Respondent as stated in paragraph 33 of the statement of claim by the Respondent before the trial Court. It is obvious that there is no specific claim to declare the 1st Plaintiff as the 1st son of the deceased. However in paragraph one of the statement of claim the Respondents posited as follows.
”The 1st Plaintiff is the 1st male child of late Pa. John Orhue Agbonrobosa Uwagie Ero.”
Also in para 6, the Plaintiffs aver thus:
”The 2nd Defendant is an impostor who only recently after the death of J.O.A. Ero Uwagie started to parade himself as the 1st son of late Pa. John Agbonrobosa Uwagie-Ero.”
In paragraph 2 and 3 of the joint statement of Defence, the Appellants denied the position claimed by the Respondent in the hierarchy of children of late Pa. John Orhue Uwagie Ero and claim that the 2nd Defendant is the 1st son. The garmout of evidence adduced by witnesses on both side is on the issue joined as to whether or not the 2nd Defendant or 1st Plaintiff is the 1st son. Both parties strenuously pursued this bid in their testimonies. It is trite, that Courts are not charitable organization hence do not grant orders not sought. Albeit I will agree with the submission of the learned counsel to the Respondents that Courts have power to grant consequential orders. This is also supported by the provision of Order 47 Rule 1 of the High Court (Civil Procedure) Rules of the Bendel State 1988 which was in operation in the state at the time this case was registered, heard and determined.
A consequential order is an order that flows as a result of the earlier one which can be called as the main order. It is appurtenant to the main principal order. See EAGLE SUPER PACK (NIC) LTD. V. A.C.B. (2006) 12 SC. 3; EYIGEBE V. IYAJI (2013) 5-6 SC. (Pt. 1) 28.
A Court is vested with the power to make consequential orders in the interest of justice and to avoid multiplicity of actions.
In the circumstance of the fact of this case and the evidence before the Court I feel bold to say that the trial Court was right to make the order declaring the 1st Plaintiff as the 1st son of late Pa. John Orhue Agbonrobosa Uwagie Ero. I accordingly so hold.
I therefore resolve this issue against the Appellants.
ISSUE 7
Whether the Judgment of the lower Court could be said to be a proper outcome of the evidence before the lower Court (Ground 7)
Having read the submission of counsel representing the respective parties on this issue, it is my understanding that the complaint of Appellant is that the judgment is against the weight of evidence and that when the evidence adduced by the Respondents is balanced against that of the Appellant before the trial Court, the Judgment given in favour of the Respondent is against the weight of what has been given in the totality of the evidence before the Court. It is trite that in deciding whether a certain set of facts given in evidence by one party in a Civil case before a Court in which both parties appear is preferable to another set or facts given in evidence by the other party, the trial Judge must put the two set of facts on an imaginary scale and weigh one against the other then decides upon the preponderance of credible evidence which weighs more.
This issue in my humble view is same as the challenge or complaint in issues 2,3,4 and 5 already determined. I therefore consider it proper to adopt the reasoning finding and conclusion reached in the resolution of issues 2, 3, 4 and 5 and apply it to this issue number 7. Accordingly I resolve issue 7 against the Appellants.
Having resolved all the issues against the Appellants and in favour of the Respondents, I hold that the appeal is devoid of any merit and same be and is hereby dismissed.
In consequence the Judgment of the High Court of Edo State, Benin Judicial Division Holding at Auchi in Suit No B/525/2004 delivered on 16th day of June 2010 Coram E. F. Ikponmwen J. is affirmed.
There shall be no order for cost.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading a copy of the judgment just delivered by my learned brother, M.N. ONIYANGI, JCA.
I am in complete agreement with the reasoning and conclusion contained therein and for the same reasons articulated in the lead judgment which I adopt as mine. I also hold that this appeal lacks merit and it is accordingly dismissed.
I abide by the consequential orders made in the lead judgment including order as to costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I was given, in advance, a copy of the judgment just delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA.
I agree that, having regard to the facts and circumstances of this case, the trial Court rightly exercised its discretion in refusing the appellants’ application to re-open their case after the close of evidence. And having regard still to the evidence before it, the trial Court rightly entered judgment in favour of the respondents.
It is for these reasons and the fuller reasons given by my learned brother, and which reasons I adopt as mine, I also dismiss this appeal.
I abide by all the consequential orders in the leading judgment.
Appearances:
S. IREDIA OSIFOFor Appellant(s)
CHIEF A.P.A. OGEFEREFor Respondent(s)
