MR. INIMFON OKON GEORGE ETEFIA & ANOR v. CHIEF ETIM EKPENYONG EFFIOM EFFANGA
(2018)LCN/12397(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2018
CA/C/85/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“The law is clear and settled that where it is established before the Appellate Court as it is here that vital issues which depend much on the appraisal and evaluation of the evidence are left undetermined, a case for a retrial is made out for such a failure has occasioned a miscarriage of justice. See the cases of TOTAL NIGERIA LTD. VS. NWAKO & ANOR. (1978) LPELR-3260 (SC); IKHANE VS. C.O.P. (1977) LPELR-1478 (SC); and AIGBE & ANOR. VS. STATE (1976) LPELR-265 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. MR. INIMFON OKON GEORGE ETEFIA
(For himself and as representative of the Estate of Late Rev. Okon George Etefia)
2. NIGERIAN MEDICAL ASSOCIATION Appellant(s)
AND
CHIEF ETIM EKPENYONG EFFIOM EFFANGA Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Cross-River State in Suit No. HC/287/2013 delivered on the 17th day of October, 2016 by Michael Edem, J (as he then was).
The Appellants as Claimants had taken out a writ of summons of the Court below against the Respondents who were Defendants. From the endorsement on the writ and paragraph 13 of the Statement of Claim of the Appellants, three (3) reliefs were couched as follows:
(a) A declaration that the Claimants are entitled to the statutory right of occupancy over the parcel of land lying and situate along New Water Intake Road, Ikot Effanga Mkpa, Calabar Municipality, Cross River State covered by Survey Plan No. EEA/CS/CR/097/2011.
(b) An order of perpetual injunction restraining the Defendant by himself, his servants, privies, agents an assigns from trespassing on the afore-mentioned parcel of land or interfering with the right of the Claimants to administer and enjoy their right of possession.
(c) N10 million general damages against the Defendant.
The parties joined issues at the Court below. The learned trial Judge heard the case of the parties and on 17th October, 2016 dismissed the claim of the Appellants with a cost of N50,000.00 in favour of the Respondent.
Being dissatisfied with the judgment of the Court below the Appellants filed this appeal through their notice of appeal filed on 13th January, 2017.
The Appellants transmitted the Record of appeal on 10th March, 2017 but was deemed properly transmitted and served on 31st October, 2017. They filed their Appellants’ brief of argument on 25th May, 2017 but deemed on 31st October, 2017. The Respondent filed the Respondent’s brief on 23rd November, 2017.
On 20th day of February, 2018 when this appeal was heard the learned Counsel for the Appellants Emmanuel David, Esq., adopted their brief as their argument in this appeal and urged the Court to allow the appeal and set aside the decision of the Court below.
Mr. Nta of Counsel for the Respondent adopted the Respondent?s brief and urged the Court to dismiss this appeal.
The Appellants in their brief distilled three (3) issues for determination. These three (3) issues are framed as follows:-
1. Whether or not the Learned Trial Judge had properly evaluated the evidence particularly Exhibit 4 placed before him before dismissing the suit.
2. Whether the decision of the Learned Trial Court was supported by the evidence before him OR had the decision occasioned a miscarriage of justice.
3. When the Trial Judge delivered his judgment on 17th October, 2016 twenty seven (27) days after the ninety (90) constitutionally allowed him do so, whether the Trial Judge did so without jurisdiction.
The Respondent in his own brief framed two (2) issues namely:
1. Whether the Learned Trial Judge did not properly evaluate the evidence including Exhibit 4 in Suit No. HC/287/2013, and whether this has occasioned a miscarriage of justice on the Appellants herein.
2. Whether the judgment delivered on 17th October, 2016 in Suit No. HC/287/2013 was delivered outside the ninety (90) days allowed by the Constitution and whether the Appellants have suffered any miscarriage of justice as a result of the purported non-compliance.
The issues distilled by the parties have the same content. I shall therefore use as a flag point the issues distilled by the Appellants for consideration of the appeal. Issues 1 and 2 as framed by the Respondents are tight-knitly related with the issues framed by the Appellants. But I have just found from the brief of the Appellants that issue two was not argued. This Appellant?s issue two therefore is hereby discountenanced. The issues to address therefore are the Appellant?s issues 1 and 3 which are also issues 1 and 2 of the Respondent. Issue 3 which is the same with issue 2 of the respondent and which has to do with whether the judgment of the Court below was delivered out of time is a threshold issue which should come first. I will therefore start the consideration with the issue.
ISSUE TWO
The argument of the parties is that the judgment delivered on 17th October, 2016 by the Court below was delivered contrary to Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The learned Counsel for the Respondent in his argument had canvassed that the time does not run during the vacation of the Court under the Rules of the Court below. The learned counsel cited Order 3 Rule 4 (1) of the High Court of Cross River State (Civil Procedure) Rules, 2008. In order not to allow this submission to slip off hand I would like to take it on immediately. The Constitution of the Federal Republic of Nigeria by Section 1 thereof is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. If any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
It is no doubt elementary to know that when a time is set by the Constitution to run, no Rules of Court or Laws of the National Assembly or Laws of the State Houses of Assembly can stop the running of the time. It is only the Constitution itself that has the power to stop such time from running. In the instant case, nothing is available to show that the Constitution has stopped any time from running to detract from the provision of Section 294(1) of the 1999 Constitution. It is therefore no good excuse or defence to say that the Rules of the Lower Court had provided that time will not run during vacation of the Court and clash with the time set by the Constitution in Section 294(1) of the Constitution. This provision of the Constitution is very clear. It provides:
294.-(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof…
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
This section of the Constitution has been given due consideration in a number of cases by this Court and the Supreme Court.
The law is that it is mandatory that every Court created under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter with duly authenticated copies of the decision within seven days of the delivery thereof. However, in Section 294(5) of the Constitution, the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section, unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. See AKPAN V. UMOH (1999) 7 SC (PT. 11) 13; ATUNGWU & ANOR VS. OCHEKWU (2013) LPELR 20935 (SC).
In the instant case, the judgment of the lower Court was delivered outside the 90 days required by the Constitution of the Federal Republic of Nigeria 1999 (as amended). However the Appellant did not establish any act of injustice meted to him by the delay in delivering the judgment. He therefore did not suffer any injustice as a result of the delay in delivering the judgment. I will now look into issue one as framed in the briefs of the parties.
ISSUE ONE
This issue is whether the Court below properly evaluated the evidence before it.
The Learned Counsel for the Appellants in his submission canvassed that the trial Court was in error for not properly evaluating the exhibits and the evidence placed before it before judgment. That the Learned Trial Judge failed to evaluated the evidence before him. He contended that if the Trial Judge had read the decision of this Court in the case of OZUA VS. SULEIMAN (2009) 11 WRN 154 @ 176 he would not have come to the conclusion he reached concerning Exhibit 4.
He relied also on the cases of ODOFIN VS. MAGAJI (1977) NSCC VOL. II P. 275; ALAFIA VS. G.V. (NIG.) LTD. (2016) 40 2 WRN 23 LINES 40-50; OGUNIJUNO V SADEMOLU (1995) 4 NWLR (PT. 389) 245, 265 and EBBA VS. OGODO (1984) NSC 255.
The Learned Counsel in addition pointed out the Learned Trial Judge at page 157 of the Record acknowledges the title of the 1st Appellant. But still held that Exhibit 4 could not transfer title. He urged the Court to set aside the judgment of the Court below.
On this issue of evaluation of evidence, the Respondent argued that this Court as an appellate Court will only interfere with the findings of fact made by the Court if the findings were perverse. He relied on the cases of OLUFOSOYE VS. OLORUNFEMI (1989) 1 NWLR (PT. 95) 26; AKOMA VS. OSENWOKWU (supra); SUSAINAH (TRAWLING VESSEL) VS. ABOGUN (2007) 1 NWLR (PT. 1019) 456; and FAGBENRO VS. AROBADI (2006) 4 NWLR (PT. 978) 172, 173. He contended that the findings of the Court below were not perverse. That the Appellants who were seeking equitable remedy must come with clear hands.
He pointed out further that Exhibit 4 was vitiated because it was not dated. He drew our attention to page 157 of the Record Section 128(1)(a) of the Evidence Act, 2011; the cases of WALTER VS. SKYLL NIG. LTD. (2001) 3 NWLR (PT. 701) 438; and BMNL VS. HEMOBOILA LTD. (2007) ALL FWLR (PT. 379) 1340, 1344. He contended that Exhibit 4 is a registrable instrument in law and urged the Court to hold that it is required to be registered as in Section 13 of the Cross River State Land Instrument Registration Law Vol. 4 Cap 13, 2004. He said in addition that Exhibit 4 lacks validity as it is said to be fraudulent. He urged the Court to resolve these issues in favour of the Respondent. That the judgment did not occasion any miscarriage of justice.
It is an agreed fact in this case that it is the duty of the trial Judge to evaluate the evidence placed before him and make primary findings of fact. It is this task of evaluation of evidence that brings out the justice of every claim founded on facts. Evaluation of evidence by a trial Judge is neither a science nor an art. It is simply a careful exercise carried out by the judge who hears and watches the witnesses testify and thereafter hold the evidence called by both sides to the conflict on the issue on either side of an imaginary balance an weighing them together.
The imaginary scale is in the sacred recess of the mind of the judge who from the process of his learning and mental endowment find out whichever outweighs the other and accept it. Then ascribe probative value to it and arrive at a decision in that logical order. Where a trial Court efficiently carries out that function, an appellate Court cannot interfere with the findings of the trial Court. It is only where the findings of the trial Court cannot be justified it being perverse that an appellate Court would interfere to forestall injustice. See the cases of FASIKUN II VS. OLURONKE (1999) 2 NWLR (PT. 589) 1; BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290; IRIRI VS. ERHURHOBARA (1991) 2 NWLR (PT. 173) 252; OKUNZUA VS. AMOSU (1992) NWLR (PT. 248) 416; and SHA (JNR.) VS. KWAN (2000) 8 NWLR (PT. 670) 685.
In the instant case, the Learned Trial judge based his decision majorly on Exhibit 4. The Learned Trial judge in his judgment found at pages 158 – 159 of the Record as follows:
May I then doubly hold that Exhibit 4, now thoroughly lame on a wheel chair, is cancerously blighted by the ailment; Skeletal musculo trauma, courtesy orthopedic medicine.
Having said if all with an uncompromising finality by the grand commander of all the Courts in the realm, then conclusion is foregone that by the invalidity of Exhibit 4, which I hereby so declare, it harboured no title and therefore had none to transfer and it transferred nothing to the 2nd Claimant for any declaration. Title cannot be declared from the vanity of nothingness. It is LEX NON COGIT AD IMPOSSIBILIA.
The very essence, being, life blood and the tap root of this action were predicated on the almighty Exhibit 4 which is now effectively bed-ridden. This action invariably cannot stand by any magic even in a temple in Tibet. In this regard let me take a metaphorical illustration from civil or construction engineering in FESTUS OKEKE VS. OGUNBAYO (1979) 7 CA page 88 particularly at 95 lines 12 to 15.
The foundation of the Appellant’s case has been found to be defective, the superstructure upon it cannot stand?….
At this holy of holy point in time, I deem going into any other issue a mere extravagant frolic in academic or hypothetical bazaar. So let this be the last bus stop and being the last bus stop, I stop here to dismiss as I dismiss this suit completely bereft of an iota of merit. No thanks to Exhibit 4 as the author and destroyer of this suit for the Claimant. Here is a document that prides and dignifies itself as being decorated by the Common Seal of the Nigerian Medical Association, 2nd Defendant yet such decoration is a mirage phantasm. No eye both aided and unaided can see it. In the entirety of the finality, suit dismissed with cost of N50,000.00 in favour of the Defendant.
Exhibit 4 is copied into pages 61 to 62 of the Record of Appeal. This exhibit in the main reads as follows:
RECEIPT OF FINAL PAYMENT
I, INIMFON OKON ETEFIA of road 5 Flat 18, Federal Housing Estate, Calabar Municipality first sons of Late George Okon Etefia and having secured the consent of the principal members of the family as owners of the said property (land), hereby acknowledge an confirm the receipt of the sum of Twenty Five Million (N25,000,000.00) naira only from NIGERIAN MEDICAL ASSOCIATION CROSS-RIVER STATE BRANCH represented by (DR. OFEM EGBE ENANG – CHAIRMAN, DR. INNOCENT EGBEJI ABANG – SECRETARY).
The VENDOR promise to indemnify the VENDEE against any person or person(s) claiming through or under on trust for the VENDOR and to refund the entire money of the transaction including cost incidental to sundry expenses and litigation if for any reason the VENDEE is unable to take possession and enjoy the said property.
SIGNED, SEALED AND DELIVERED
By the within named VENDOR
INIMFON OKON ETEFIA
…….
This Exhibit 4 as it is captioned is the receipt the 1st Appellant issued to the 2nd Appellant for a sum of Twenty Five Million Naira (N25,000,000.00) the 2nd Appellant paid to the 1st Appellant for a parcel of land. This receipt is the link the 2nd Appellant has with the subject matter of this litigation. The main claim is between the 1st Appellant and the Respondent. The 1st Appellant and the Respondent have joined issues in their pleadings. These issues were completely ignored by the Learned Trial Judge who only focused on Exhibit 4 which is just the receipt issued to the 2nd Claimant.
Paragraphs 9 to 13 of the Statement of Claim are the catalogue of the facts that mould the cause of action in this case. See pages 4 – 5 of the Record. Issues were joined by the Respondent of his statement of defence at pages 29 to 32 of the records. These issues were not looked into by the Learned Trial Judge. Since the real issues were not considered, the decision of the Learned Trial Judge dismissing the claim of the Appellants is with due respect perverse. This issue one from the foregoing is resolved in favour of the Appellants.
From the foregoing therefore, this appeal is meritorious. The only aspect to look into is the order to make in the circumstance. In the notice of appeal, the Appellants sought two reliefs namely:
1. That this Appeal be allowed and the decision and orders of the Lower Court set aside and in its place be substituted an order granting the Relief(s) of the Claimants/Appellants in the Lower Court as per their Statement of Claims.
2. And other order(s) as this Honourable Court may deem fit to make in the circumstance of this case.
From the facts and circumstances of this appeal, the order to make is to allow this appeal and set aside the decision and orders of the Court below. The law is clear and settled that where it is established before the Appellate Court as it is here that vital issues which depend much on the appraisal and evaluation of the evidence are left undetermined, a case for a retrial is made out for such a failure has occasioned a miscarriage of justice. See the cases of TOTAL NIGERIA LTD. VS. NWAKO & ANOR. (1978) LPELR-3260 (SC); IKHANE VS. C.O.P. (1977) LPELR-1478 (SC); and AIGBE & ANOR. VS. STATE (1976) LPELR-265 (SC). In fact, the rights of the parties in this instant case had not been determined by the Court below. The order to make in the circumstance is that of a retrial. I accordingly allow this appeal.
The judgment of the Cross-River State High Court in Suit No. HC/287/2013 delivered on 17th October, 2016 is hereby set aside.
The case is remitted back to the Court below to be retried by another Judge of the Court.
Parties are to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity of reading in draft the judgment delivered by my learned brother, S. J. ADAH, JCA.
I adopt the facts of this appeal as meticulously set down in the lead judgment.
I agree that there is merit in this appeal and that it be allowed. The judgment of the Court below in suit No. HC/287/2013 is hereby set aside.
Consequently, this case is remitted back to the Chief Judge of Cross-River State for assignment to another Judge of the High Court. I abide by the order as to costs made by ADAH, JCA in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
The failure of the learned trial Judge to appropriately appraise and evaluate evidence adduced by the parties is tantamount to abdication of judicial responsibilities.
For the more detailed reasons in the lead judgment, I equally find merit in this appeal and I accordingly allow it while also adopting the consequential orders in the lead judgment.
Appearances:
Emmanuel David, Esq.For Appellant(s)
Nta A. Nta, Esq. with him, R.O. Ogar, Esq., C.E. Ita, Esq., G.E. Udabang, Esq. and J.E. OkonFor Respondent(s)
