CHARLES ODUMA ANWADIKE & ANOR v. GODFFRY JIDEOFOR DADA ANWADIKE & ORS
(2019)LCN/12757(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/E/549/2013
RATIO
ACTION: COUNTER-CLAIM
“A counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence. The burden rests squarely on the counter claimant to adduce evidence in proof on a balance of probabilities of his counter claim. See OGBONNA V A.G. IMO STATE & ORS (1992) LPELR 2287(SC). In the case of OROJA & ORS V ADENIYI & ORS (2017) LPELR-41985(SC) PETER-ODILI JSC observed: There is a rich case law on the meaning and purport of a counter-claim and I shall have recourse to a few in aid at this point in time. See Effiom v Iron Bar (2000) 1 NWLR (Pt. 678) 341 where it was held thus- ‘A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs’ claim or raise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.'” PER CHINWE EUGENIA IYIZOBA, J.C.A.
COURT AND PROCEDURE: BURDEN OF PROOF
“A good starting point is the subject of burden of proof and its incidence viz a viz the pleadings of the parties. In the case of OKOYE & ORS V NWANKWO (2014) LPELR-23172 (SC) (PP. 25-26, PARAS. F-E) PETER-ODILI JSC observed: ‘The burden of proof in civil cases has two distinct meanings, viz: (a) The first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case; (b) The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-versa as the case progresses. Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt. 856) 100 at 130 per Olagunju, JCA; Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66; Nwosu v Udeoja (1990) 1 NWLR (Pt. 125) 188; Elemo v. Omolode (1968) NMLR 359; Chigwu v. Baptist Convention (1968) 2 ALL NLR 294: Adegoke v. Adibi (1992) 5 NWLR (pt. 242) 410.'” PER CHINWE EUGENIA IYIZOBA, J.C.A.
CUSTOMARY LAW: ‘IGBU’ TITLE
“The evidence regarding the ‘Igbu title’ further confirmed the case of the Respondents on the paternity of Samuel. ‘Igbu’ is a traditional title usually taken by a man’s first son on his death Samuel did not take it because it was claimed he was a Christian… ” PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1.CHARLES ODUMA ANWADIKE
2.PATRICK OKECHUKWU ANWADIKE
(For themselves and on behalf of the family of Daniel O. Anwadike) Appellant(s)
AND
1. GODFFRY JIDEOFOR DADA ANWADIKE
2. EMMANUEL OBIAJULU ANWADIKE
-1st set Respondents
3. IFEANYI “SAMUEL AKAYA”
4. KANAYO “SAMUEL AKAYA”
5. OKWUDI “SAMUEL AKAYA”
(For themselves and on behalf of the Descendants of “Samuel Akaya”)
-2nd set of Respondents Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Anambra State, Onitsha judicial division delivered on the 13th day of May 2013 in Suit No. 0/155/93 Coram Obiorah, J.
The Appellants as Plaintiffs in the lower Court claimed as follows:
“(a) A declaration that the landed property or estate of late Ben Gillet Anwadike situate at No. 14 Bright Street/Ogalonye Street, Onitsha shown on survey Plan No. VLD/AS.6/93 devolves on the Plaintiffs and the first set of defendants – male descendants of Ben Gillet Anwadike for distribution in accordance with the Customary Law of Aboh in Ndokwa East Local Government Area of Delta State of Nigeria.
(b) Partition of the said landed property or estate into four equal parts among the plaintiffs and the first set of defendants-male descendants of late Ben Gillet Anwadike taking per stripes i.e. “Usokwu” by “Usokwu” in accordance with the customary law of Aboh aforesaid and in line with the survey plan filed with the statement of claim.
(c) A declaration that the second set of defendants are strangers by blood to late Ben Gillet Anwadike and are disentitled to inherit any of Ben Gillet Anwadike’s estates wherever situate in accordance with the said customary law of Aboh.
(d) An account against the 1st and 2nd defendants (Albert Nwabuno Anwadike, Geoffrey Jideofo Dada Anwadike) of all rents and profits collected by them from tenants occupying No. 14, Bright Street, Onitsha from May 1981 until judgment and the payment of the money found due upon taking such account, after just deductions into Court for the benefit of the plaintiffs and the first set of defendants.
(e) A declaration that the 2nd defendant’s house situate at No. 21 Nwabeze Street, off Osuma Road, Inland Town, Onitsha and the 2nd defendant’s house situate at Ogbeukwu Iyiowa, Odekpe, were built out of the funds realized by the 2nd defendant from the management from 1981 to 1996 of the estate of Benjamin Gillet Anwadike being and situate at No. 14, Bright Street/Ogalonye Street, Onitsha being the subject of dispute in these proceedings.”
Before proceeding further, it is necessary to comment on the numbering of the parties in this appeal. The Notice of Appeal at page 739 of the Record shows that the 1st set of Respondents are four in number, that is 1st, 2nd, 3rd and 4th Respondents. The 2nd set are three numbered 5th, 6th and 7th Respondents. Somehow along the line the 3rd and 4th Respondents disappeared from the picture. The Appellant in his brief of argument maintained the order leaving the 2nd set of Respondents as 5th, 6th and 7th Respondents which tallied with the numbering in the Record of proceedings. Learned counsel for the 1st Respondent and Counsel for 5th, 6th and 7th Respondents in their separate briefs renamed them 3rd 4th and 5th Respondents. In order to avoid any confusion, I tried whenever 3rd to 5th Respondents is indicated to put in brackets 5th to 7th Respondents. Counsel should not have allowed this anomaly. They should have kept to the numbering as in the Notice of appeal and other processes in the Record. Learned counsel for the Appellants in his amended brief of argument at page 3 set out the facts of the case thus:
‘The Appellants’ case is that they are the children of one Daniel Obiora Anwadike, the 1st son of Benjamin Gillet Anwadike, late of Ogbeukwu Village, Aboh Town, Ndokwa East Local Government Area, Delta State of Nigeria. The Appellants also claim that Benjamin Gillet Anwadike acquired No. 14 Bright Street/Ogalonye Street, Onitsha in his life time. Benjamin Gillet Anwadike had four wives who had male children for him namely: –
i. Nwanyiuzo Akpati, of Aboh the mother of the Appellants’ father, Daniel Obiora Anwadike.
ii. Mgboli Nwona of Enugu-Ukwu the mother of the 1st and 2nd Respondents.
iii. Elizabeth Nwanyiuzo of Onitsha, the mother of the late 3rd Defendant.
iv. Aguye Aniode of Igbokenyi, the mother of the 4th Defendant.
Benjamin Gillet Anwadike died intestate in 1958. The Appellants also claim that the 3rd to 5th (5th to 7th) Respondents are the children of Samuel Akaya Jombo, the son of a Sierra Leonean Cooper. By reason thereof, the 3rd to 5th (5TH?7TH) Respondents are not entitled to share in the estate of Benjamin Gillet Anwadike. The Appellants claim partition of the estate of Benjamin Gillet Anwadike between them and the 1st to 4th Respondents. The Appellants also claimed an account from the 1st and 2nd Respondents and further claim a declaration that two properties at Onitsha owned by the 1st Respondent were built from funds realized from the Estate of Benjamin Gillet Anwadike. The 3rd to 5th (5TH?7TH) Respondents counter-claimed that their grandmother, Madam Margaret Aguye Akaya was the 1st wife of Benjamin Gillet Anwadike and that their father, Samuel Akaya Jombo was the product of the union between Benjamin Gillet Anwadike and their grandmother Madam Margaret Aguye Akaye. They also claim that their father was the 1st son of Benjamin Gillet Anwadike. They further claimed a declaration that the Appellants are not the sons of Daniel Obiora Anwadike and they are therefore not entitled to share in the estate of Benjamin Gillet Anwadike.
The 1st Respondent denied the Appellants’ case that the father of the 3rd to 5th (5TH-7TH) Respondents, one Samuel Akaya Jombo was not the son of Benjamin Gillette Anwadike. He claimed that he was the 1st son of Benjamin Gillet Anwadike. The late 3rd Defendant/Respondent admitted the Plaintiffs’ claim that the 3rd to 5th (5TH-7TH) Respondents’ father was not the son of Benjamin Gillet Anwadike. The 2nd Respondent did not contest the suit.
In support of the facts pleaded in their further Amended Statement of Claim, the 2nd Appellant testified in person and called two witnesses who testified as PW2 and PW3. The Appellants tendered 14 Exhibits in support of their case. The 1st set of Respondents relied on their 3rd Amended Statement of Defence. In support of their Statement of Defence they called 4 witnesses including the 1st Respondent Geoffrey Jideofor Dada Anwadike who testified as DW1 and tendered Exhibits R1 to R40. The 3rd to 5th (5th to 7th) Respondents relied on their 2nd further amended Statement of Defence and Counter Claim and called 2 witnesses inclusive of the 6th defendant who testified as D.W6 and tendered Exhibit 1: Nigeria Mirror Newspaper of 19th March 1997. Exhibit U: The Court process filed in Suit No. E/434/84 and E/307/84, and Exhibit 5: Plan No. FALS/DL32/94 containing the mode of sharing of No 14 Bright Street in line with their Counter Claim.
From the evidence adduced before the Court, the parties are ad idem that Ben Gillet Anwadike died intestate in 1958. The 3rd and 4th Defendants did not file any defence to the action and did not appear during the trial despite the fact that the Appellants in their evidence relied on various acts purportedly perpetuated by the 4th Defendant on their father’s behalf, they also never called or subpoenaed the 4th Defendant to testify on their behalf. The trial Court in its Judgment dismissed the claims of the Appellants and granted the Counter Claim of the 5th to 7th Respondents.
Dissatisfied with the judgment, the Appellants appealed to this Court by a Notice of Appeal containing 11 grounds of appeal out of which they formulated four issues for determination as follows:
1. Whether the learned trial judge was right to suo motu and unsolicitedly amend the pleadings of the respondents so as to fill the gaps in the case presented by them (Grounds 1 and 7).
2. Whether the learned trial judge was right in his decision on whom the onus of proof of the paternity of the father of the 5th to 7th Respondents lay (Grounds 1, 2, 3, and 4).
3. Whether the learned trial judge was right in relying on the evidence of DW1 (1st Respondent) which contradicted his earlier oath, newspaper publication and other exhibits properly tendered before him in arriving at his decision that the father of the 5th to 7th Respondents was the first son of B.G. Anwadike (Grounds 1,2,3, 5 and 9).
4. Whether the learned trial judge was right in not deciding the issues pleaded and proved by the parties (Ground 7).
The 1st Respondent in his Amended Brief of argument distilled four issues as follows:
1. Did the learned trial judge ever amend the pleadings of the respondents by filling the gaps in the case presented by the respondents as falsely alleged by the appellants?
2. On whom does the burden of proving the assertion made by the appellants as to the paternity of the father of the 5th to 7th respondents lie?
3. Did the learned trial judge fail in his duty to review objectively the evidence and the exhibits tendered before him at the trial in arriving at his decision that the father of the 5th to 7th respondents was the first son of Ben Gillet Anwadike?
4. Did the appellants prove their case at the Court below?
The 3rd to 5th (5th to 7th) Respondents in their brief of argument raised a preliminary objection and distilled two issues for determination:
1. Whether the learned trial Judge was correct when he dismissed the Claim of the Appellants on the grounds that the Appellants have failed to prove their case against the Respondents.
2. Whether the learned trial Judge was correct when he granted the Counter Claim of the 5th to 7th Respondents.
I shall as usual first determine the preliminary objection raised by the 3rd to 5th (5th to 7th) Respondents.
The ground for the preliminary objection is that Grounds 1 to 11 in the Notice and Grounds of Appeal filed by the Appellants are vague, defective and incompetent. In arguing the preliminary objection, learned counsel Ben Osaka Esq., submitted that Ground 1 in the Notice & Grounds of Appeal is vague and did not arise from the Judgment of the trial Court. He cited the cases of F.J.S.C VS THOMAS (2013) 17 NWLR (PT 1384) 503 @ 528 and NATIONAL INVESTMENT AND PROPERTIES LTD VS THOMPSON ORGANISATION (1969) NMLR 99. Counsel also submitted that Ground 2 of the Notice of Appeal and its particulars are vague and ambiguous. Counsel also submitted that Grounds 3 to 11 are vague and incompetent and ought to be struck out. Citing the cases of SARAKI VS KOTOYE (1992) 9 NWLR (PT. 264) 156 and ALLWELL OHAJUNWA & ORS VS CHIEF S. OBELLE & ORS (2008) (PT 1073) 52 @ 60 – 61 counsel submitted that it is settled that Grounds of Appeal must arise from the decision of the trial Court appealed against. He submitted that Grounds 1 to 11 do not challenge the findings of the learned trial judge and are all defective and incompetent. Counsel urged us to strike out all the grounds. In the alternative relying on the case of ALIMS NIG. LTD VS U.B.A (2013) M.J.S.C (PT1) 159 @ 161 Counsel urged the Court to strike out Grounds 6, 8, 10 and 11 as no issue was formulated from them.
Order 7 Rule 3 of the Court of Appeal Rules provides:
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
In the case of CBN & ANOR V OKOJIE & ORS (2002) LPELR-836 (SC) Uwaifo JSC observed:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized, or the particulars are clearly irrelevant. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267; (1987) NSCC (Vol. 18pt. 1) 117.”
I have read carefully the 11 grounds of appeal in the Notice of Appeal at pages 739-749 of the Record. While they are not particularly elegant and some of the grounds tended to misrepresent the views of the learned trial judge, it cannot be said that they were couched in such a manner that they cannot be understood. With their particulars, they are quite comprehensible and competent. The fact that the Appellant did not specifically mention some of the grounds of appeal under the four issues distilled from the grounds does not mean that no issue was formulated from those grounds. Counsel had urged the Court to strike out Grounds 6, 8, 10 and 11 as no issue was formulated from them. Grounds 6 and 8 notwithstanding their clumsiness in drafting fall within issue 3 as they both deal with whether or not the father of the 3rd to 5th (5th to 7th) Respondents was the son of B.G. Anwadike. Ground 10 falls neatly within issue 4 even more than ground 7 which the Appellants mentioned under that issue. Ground 11, that the judgment is against the weight of evidence being the omnibus ground of appeal can never be struck out on the basis that no issue was formulated there from as the ground is a challenge to the entire evidence led in the case as insufficient to justify the judgment of the Court. The preliminary objection is thus misconceived and is hereby overruled.
In the determination of this appeal, I shall adopt the two issues formulated by the 3rd-5th (5th-7th) Respondents as the four issues distilled by the Appellants and the 1st Respondent can be subsumed under those two issues. The two issues will be taken together.
APPELLANTS’ ARGUMENTS:
In the attempt to show that the learned trial judge erred in holding that they did not prove their case and in dismissing same, learned counsel for the Appellants started his arguments from his issue 3, whether the learned trial judge was right in relying on the evidence of DW1 (2nd Defendant/1st Respondent) which contradicted his earlier oath, newspaper publication and documents signed by him as to the paternity of the father of the 3rd to 5th (5th to 7th) Respondents. Learned counsel submitted that when a witness is shown to have made previous statements inconsistent with his evidence in Court, his evidence in Court must be treated as unreliable. He opined that the learned trial judge in relying on the evidence of DW1 as a direct son of Ben Gillet Anwadike as against the Plaintiffs/Appellants who were not, failed to take into account the cross-examination of DW1 and his earlier position as shown in various Exhibits tendered before the Court that he did not recognize the father of the 3rd to 5th (5th to 7th) Respondents as a son of Ben G. Anwadike. Counsel submitted that the lower Court was wrong to give credence to the testimony of DW1 that the father of the 3rd to 5th (5th to 7th) Respondents was not only a son of Ben Gillett Anwadike but the 1st son and head of his family contrary to his earlier position.
On his issue 2, whether the learned trial judge was right in his decision as to who bears the onus of proof of the Paternity of the father of the 3rd to 5th (5th-7th) Respondents, counsel referred to Section 131 (1) of the Evidence Act 2011, the pleadings and the evidence led by the Appellants and submitted that the Appellants had proved what the law requires of them and that the burden of proving the negative shifted to the 3rd to 5th (5th to 7th) Respondents. He referred to FELLX OSAWARU V SIMEON EZEIRUKA (1978) 6-7 SC 135, 146.
Counsel submitted that the 3rd-5th (5th to 7th) Respondents failed to prove that their grandmother was the wife of Ben Gillet Anwadike and that their father was the son and indeed the first son of Ben Gillet Anwadike.
On their issue 4, whether the learned trial judge was right in not deciding on the issues pleaded and proved by the parties, learned counsel submitted that from the pleadings of the parties, the issue whether or not the mother of Samuel was married to Ben Gillet Anwadike is not a secondary matter as held by the learned trial judge. Counsel submitted that the issue the Appellants put forward for determination was the mode of distribution of the estate of a deceased Aboh man under Aboh native law and custom.
Counsel submitted that the contention of the Appellants was that distribution is according to the “Usokwu” system i.e. according to the number of wives who have male issues for the deceased Aboh man. He submitted that the Appellants led evidence that a man born outside wedlock can never be the first son of an Aboh man. He further submitted that the case put forward earlier by the 3rd to 5th (5th to 7th) Respondents was that their grandmother was not the wife of Ben. G. Anwadike. They claimed that their father was born out of wedlock and that Ben G. Anwadike acknowledged his paternity. Counsel submitted that DW2 called by the 1st Respondent agreed with them. DW6 in his earlier deposition on oath confirmed the same. Counsel argued that this continued to be their position until they amended their statement of Defence and completely changed their case claiming that their grandmother was the first wife of Ben G. Anwadike thus putting forward a new case inconsistent with their earlier case contrary to the provision of Order 15 R. 8 of the High Court of Anambra State (Civil Procedure) Rules 2006. Counsel submitted that the learned trial judge ought to have decided on whether or not the mother of Samuel Aguye Akaya was the wife of Ben Gillet Anwadike to entitle Samuel to have an Usokwu for the purpose of distribution of the estate of Ben. G Anwadike under Aboh native law and custom. He submitted that the failure of the lower Court to consider these issues raised by the Appellants denied them their constitutional right to fair hearing. He relied on ABIOLA & SONS BOTTLING CO LTD V SEVEN UP BOTTLING CO LTO (2012) 7SC (PT 11) 83 @100-101. Counsel prayed the Court to apply the provisions of Section 15 of the Court of Appeal Act 2004 to rehear the case and to decide the issue whether or not the mother of Samuel Akaya Jumbo, Margaret Aguye Akaya was the wife of Ben Gillet Anwadike, which issue according to Aboh native law and custom will entitle him to a share of the estate of Ben Gillet Anwadike.
On issue 1, whether the learned trial judge was right to suo motu and unsolicitedly amend the pleadings of the respondents so as to fill the gaps in the case presented by them, learned counsel relying on the cases of AWARA V ALALIBO (2002) 12 SCNJ 62, 79; FIRST AFRICAN TRUST BANK LTD V PARTNERSHIP INVESTMENT CO LTD (2003) 12 SCNJ 1, 13 submitted that a party is bound by his pleadings and cannot make a case different from his pleadings. Counsel also submitted relying on MIKE O. OBOMHENSE V RICHARD ERHAHON (1993) 7 SCNJ (PT 11) 479 that a party must be held to the case put forward in his pleadings and he must prove his case as pleaded by him. Counsel submitted that the learned trial Judge went beyond his bounds and started making a case for the Respondents. Learned counsel examined their pleadings especially paragraph 27 of their first further Amended Statement of Claim and paragraph 29 of the 1st Respondent’s Third Amended Statement of Defence and submitted that the Appellants and the 1st Respondent joined issues as to the rendering of account by the 1st and 2nd Respondents.
The Appellants were not satisfied with the account rendered to them by the late 1st Defendant and the 1st Respondent. The late 1st Defendant and 1st Respondent claimed that the account they rendered was tampered with by the 2nd Appellant. Counsel referred to page 735 of the Record where the trial Court held as follows: –
“… With respect to the claim for account which is for the period from 1981 until judgment. I can only say that it cannot be so since this Court had in 1996 appointed a receiver over the estate as regards the period between 1981 to 1996. I have critically examined the documentary evidence before the Court and I realized that even the Plaintiffs’ father was a great beneficiary of the expenses made from the family estate. Moreover, Daniel Anwadike was alive until 1991. I therefore do not see how the Plaintiffs can jump over the head of their father to ask for account over the period the man was alive and when the Plaintiffs? interest has not crystallized…”
Learned counsel submitted that in arriving at the above decision, the trial Court failed to take into account the settled principle of law that both the Court and the parties are bound by the pleadings as formulated. Counsel submitted that throughout the trial at the lower Court, the 1st Respondent did not apply to amend their pleadings. He opined that it is not their case that they were not bound to give account to the appellants which they did not give to the father when he was alive nor is it their case that because the Appellants’ father was a great beneficiary in a bogus account they gave to the Appellants, they were no longer bound to account to them. Counsel further submitted that the said expenses were incurred by the late 1st Defendant and the 1st Respondent without the consent of the Appellants’ father when he was alive.
Counsel relying on the case of SAMACO ENT. LTD V NEW NIGERIA BANK PLC (2006) ALL FWLR (PT 293) 193 submitted that the learned trial judge descended into the arena by unsolicitedly amending the pleadings of the 1st and 2nd Respondents in order to enter judgment against the Appellants. Learned counsel put up similar arguments in respect of paragraph 23 of the Appellants’ first further amended Statement of Claim; Paragraph 20 of the 1st and 2nd Defendants’ 3rd Amended Statement of Defence and paragraph 25 of the 3rd-5th (5th to 7th) Respondents further Amended Statement of Defence regarding newspaper publications at various times. Counsel submitted that none of the parties averred in any of the above paragraphs that there was a misunderstanding as to the headship of the family of Ben Gillet Anwadike to justify the holding by the trial Court that even before the publications and other documents tendered by the plaintiffs that there was already a misunderstanding over headship of the family and management of the estate.
Counsel again submitted that the trial judge descended into the arena by unsolicitedly amending the pleadings of the Respondents in order to enter judgment against the Appellants. Relying on OLAWORE V OJO (2006) ALL FWLR (PT. 341) 1382, Counsel submitted that there were yawning gaps in the defense presented by the 3rd-5th (5th to 7th) Respondents and that the learned trial Judge embarked on filing those gaps which he had no power to do. Learned counsel urged the Court to allow the appeal because the Appellants proved their case; the 3rd-5th (5th to 7th) Respondents failed to prove that their grandmother was the wife of Benjamin Gillet Anwadike, that their father Samuel Akaya was the son of Benjamin Gillet Anwadike; and that the late 1st Defendant and 1st Respondent did not prove that they are not liable to give account of the rents they collected from the estate of Benjamin Gillet Anwadike from 1981-1996 when the lower Court appointed a receiver and manager for the estate.
1ST RESPONDENT’S ARGUMENTS:
The 1st issue distilled by learned counsel for the 1st Respondent is whether the learned trial judge ever amended the pleadings of the Respondents by filling the gaps in the case presented by the Respondents as falsely alleged by the appellants. After a thorough examination of the pleadings, the law and decided cases, learned counsel submitted that the Appellants did not file any reply in rebuttal to the facts averred to in the 1st Respondent’s third amended statement of defence and are therefore deemed to have admitted the facts therein contained. Counsel submitted that the 1st Respondent and Albert Nwabuno Anwadike (deceased) 1st Defendant rendered account to the Ben Gillet Anwadike family but that the Appellants described the account rendered to the family as “bogus”; the burden was therefore on them to show and prove how the said account was “bogus”. Counsel submitted that further, the 2nd appellant did not deny that he tampered with the account rendered by the 1st respondent. Counsel submitted that what is admitted need no further proof. He submitted that the learned trial judge?s finding at page 735 lines 8 to 17 of the record is dispassionate and an impartial assessment of the case before the Court based on the pleadings and evidence led before the Court. Counsel submitted that the appellants failed to point out where and how the Court below either made a case for the respondents by filling the gaps in the case of the 1st respondent or made a case for the 1st respondent by amending his pleadings. Counsel urged the Court to resolve this Issue against the appellants.
1st Respondent’s issue 2 is ?on whom does the burden of proving the assertion made by the appellants as to the paternity of the father of the 3rd to 5th (5th to 7th) Respondents lie. Issue 3 is ‘did the learned trial judge fail in his duty to review objectively the evidence and the exhibits tendered before him at the trial in arriving at his decision that the father of the 3rd to the 5th (5th to 7th) Respondents was the first son of Ben Gillet Anwadike’ Both issues were argued together by learned counsel for the 1st Respondent. Citing Section 131(1) Evidence Act, 2011 counsel submitted that it is a settled principle of law that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of acts which he asserts must prove that those facts exist. Counsel further submitted that a plaintiff who seeks a declaratory relief from the Court has to satisfy the Court that he is entitled to the relief claimed on the evidence brought by him and that he must succeed on the strength of his own case and not on the weakness of the defence. Counsel argued that the burden of proving the claim made by the appellants as to the paternity of the father of 3rd to 5th (5th to 7th) Respondents rests squarely on the appellants.
Counsel submitted that the evidence before the Court below shows that P.W.1, Barrister Patrick Okechukwu Anwadike is a grandson of Ben Gillet Anwadike and was barely five years and six months when Ben Gillet Anwadike died on the 20th day of March, 1958. Samuel Ogbogu Anwadike was born in 1911, while P.W.1 told the Court his father was born in 1918. Under cross examination at page 583 lines 11 to 13, P.W.1 admitted that Samuel was older than his father. Counsel submitted that the evidence of the P.W.1 reproduced at pages 723 to 724 and his answers during cross examination at pages 724 to 725 of the record is most illuminating. Counsel contended that P.W.1 was not present when Samuel Ogbogu Anwadike was born in 1911; that P.W.1 admitted that Ben Gillet Anwadike never discussed with him the relationship between him (Ben Gillet Anwadike) and his wives. Counsel submitted that the appellants’ second witness, Uzor Ozegbe Stephen PW2 at paragraphs 6, 7 and 8 of his deposition reproduced at page 726 of the record testified to facts not within his personal knowledge. Under cross examination page 727 of the Record his evidence was completely demolished.
Counsel submitted that the Appellants’ witnesses P.W.1 and P.W.2 failed to prove their allegation that Samuel Ogbogu Anwadike was the son of Mr. Jombo, a Sierra Leonean. He further submitted that the appellants and their witnesses having failed woefully to prove their allegation that the father of 3rd to 5th (5th to 7th) respondents was not the son of Ben Gillet Anwadike but the son of Mr. Jombo, the evidence before the Court below is not worthy of ascription of any probative value being hearsay evidence contrary to the provisions of Section 37 and 38 of the Evidence Act, 2011. Counsel submitted that the evidence was thoroughly reviewed and rightly rejected by the Court below contrary to the view of the Appellants that the learned trial judge did not objectively review the evidence. Counsel urged the Court to resolve the issues against the Appellants.
The 1st Respondent’s 4th issue is whether the Appellants proved their case at the Court below? Learned counsel submitted that the Appellants sought “a declaration that the 2nd defendant?s house situate at No. 21 Nwabueze Street, off Osuma Road, Inland Town, Onitsha and the 2nd defendant’s house situate at Ogbeukwu Iyiowa, Odekpe were built out of the funds realized by the 2nd defendant from the management from 1981 to 1996 of the estate of Benjamin Gillet Anwadike being and situate at No. 14, Bright Street/Ogalonye Street, Onitsha being the subject of dispute in these proceedings”. After examination of the evidence led and the cross examination of the witnesses on the above matter, learned counsel submitted that the false claim that the 1st Respondent’s two houses were built out of the funds realized from the management of the estate of Benjamin Gillet Anwadike is mischievous, incredible and unworthy of ascription of any probative value.
Counsel submitted that the decision of the Court below at pages 735 lines 18 to 22 and 736 lines 1 to 15 of the record is infallible and borne out of a critical analysis and thorough evaluation of the evidence and the exhibits tendered before the Court below. He submitted that the evidence before the Court showed that Samuel Ogbogu Anwadike was born in 1911 by Margaret Aguye Anwadike, the 2nd out of the thirteen wives of Ben Gillet Anwadike as the 1st son. He submitted that the 2nd Appellant admitted his father was born in 1918; D.W.2, Chief Omodi Ojigbale Oputa who was ninety five years old when he testified in Court under cross examination confirmed that Samuel Anwadike was the first son of Ben Gillet Anwadike page 630 lines 13 to 18 of the record; D.W.3 Michael Odimegwu Uzor under cross examination at pages 645 to 646 of the record at lines 16 to 18 and page 646 lines 1 to 4 confirmed that Samuel Ogbogu Anwadike was the first son of Ben Gillet Anwadike. Counsel submitted that the Appellants’ arguments that Ben Gillet Anwadike never married and never had sexual intercourse with Margaret Aguye Akaya was not proved as P.W.l gave evidence of what happened before his birth and ipso facto not within his personal knowledge.
Further, counsel submitted P.W.1 admitted that Ben Gillet Anwadike never discussed with him his relationship with his wives nor told him anything about Samuel. Counsel submitted that P.W.1 knew nothing about the Anwadike family. He submitted that the learned trial judge in his judgment at page 736 lines 16 to 18 rightly dismissed the Plaintiffs/Appellants’ case. He urged the Court to dismiss the appeal and to affirm the judgment of the High Court.
3RD – 5TH (5TH -7TH) RESPONDENTS? ARGUMENTS:
Issue 1: Whether the learned trial Judge was correct when he dismissed the Claim of the Appellants on the grounds that the Appellants have failed to prove their case against the Respondents. Learned counsel on the above issue submitted that the trial Judge was perfectly right when he dismissed the Claim of the Appellants as the Appellants failed to prove their case against the Respondents. Counsel submitted that the Appellants claimed against the 5th to 7th Respondents in their paragraph 31(c) a declaration that the second set of Defendants are strangers by blood to Late Ben Gillet Anwadike Estate wherever situate in accordance with the said Customary Law of Aboh.
Counsel submitted that the Appellants are bound to prove their case that the 5th to 7th Respondents are not entitled to benefit from the Estate of Late Ben Gillet Anwadike wherever situate in accordance with Customary Law of Aboh. Counsel submitted that the Appellants in discharging the burden of proving their assertion on a balance of probabilities cannot rely on the weakness of the Defendants’ case. Counsel relied on COMMISSIONER OF WORKS, BENUE STATE VS DEVCON (1988)7 SCNJ 1 @ 11 AND ALHAJI ALLYU BALOGUN VS ALHAJI SHITTU LABIRAN (1988) 6 SCNJ 71. Learned counsel examined the evidence led by the appellants at the trial and submitted that the evidence being hearsay did not satisfy the requirement of the law. Learned counsel submitted that Samuel as the first son of B.G. Anwadike was the right person to take the Igbu title which he declined on grounds of his Christian religion. The Appellant’s father was unable to take the Igbu title the highest title under Aboh Custom because the father of the 5th to 7th Respondents Samuel Anwadike was alive.
This fact counsel submitted supports the view that Samuel Anwadike was the first son of Ben Gillet Anwadike; the Appellants consequently failed to establish their relief 31(c). Counsel submitted that the learned trial judge was right in his conclusion that ‘it is not the duty of the Defendant to prove negative assertion. The burden is on the Plaintiff who made a positive assertion to prove it by cogent and credible evidence and if he does not do so, his assertion or claim is bound to fail’. Counsel submitted that the attempt by the Appellants to pick holes in the evidence of the 2nd Respondent who testified as DW1 is of no moment, hence the correct statement of the law by the learned trial judge that, I think it is necessary to reiterate the settled law that in a Claim for a declaratory relief the onus is on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the relief claimed. The Plaintiff must rely on the strength of his own case and not on the weakness of the Defence.”
On the argument of the Appellants that the learned trial Judge ought to have relied on the documentary evidence tendered to resolve the conflict that arose from the evidence placed before it, learned counsel submitted that the learned trial Judge at page 732 of the record analyzed the documentary evidence tendered by the parties and found as follows: “However it would appear that even before the publication and other documents tendered by the Plaintiffs that there was already a misunderstanding over headship of the family and Management of the Estate. In this regard, I pay attention to Exhibits R22 and T presented by the Defendant.”
On the contention by the Appellants that the lower Court glossed over the issue whether or not Madam Aguye Akaya was married to Ben Gillet Anwadike, counsel submitted that the issue has no bearing on Samuel Anwadike?s right as the 1st son of Ben Gillet Anwadike. Counsel submitted that the Appellant however failed to prove that there was no marriage. He submitted that DW1, the 2nd Respondent and a direct son of Ben Gillet Anwadike having testified that his father was married to Madam Aguye Akaya, the Court was right in believing the evidence of a direct son rather than a grandson who relied on hearsay evidence. Counsel urged the Court to hold that the lower Court was right in accepting the evidence from a direct descendant of Ben Gillet Anwadike that his father was married to Madam Aguye Akaya. On the Appellants’ call on the Court to invoke the provision of Section 15 of Court of Appeal Act to rehear and decide the issue as to whether or not the mother of Samuel Anwadike Margaret Aguye Akaya was the wife of Ben Giliet Anwadike; which issue according to Aboh native law and Custom will entitle him to a share of the Estate of Ben Gillet Anwadike, learned counsel submitted that Section 15 of the Court of Appeal Act is not invoked as a matter of course and that the Appellant had not placed any material that will enable this Court to exercise this discretion as stated in the case ofINAKOJU VS ADELEKE (2007) 4 NWLR (PT 1025) @ 423.
Counsel urged the Court to resolve issues 1 to 4 raised by the Appellants against them; and to resolve issue 1 raised by the 5th to 7th Respondents in their favour.
On issue 2, whether the learned trial Judge was correct when he granted the Counter Claim of the 5th to 7th Respondents, Learned counsel submitted that the Appellants having failed to prove their case against the 5th to 7th Respondents, that the learned trial Judge was right when he held at page 736 of the record as follows:-
“I do not see any merit in the case of the Plaintiffs; I think the suit is built on hearsay, speculations and misconception. It is dismissed accordingly.”
Counsel submitted that the only thing remaining to be considered was the Counter Claim of the 5th to 7th Respondents; in respect of which the Appellants did not file any reply. What it means is that the Appellant did not oppose the Counter Claim of the 5th to 7th Respondent and did not call any evidence in rebuttal. Counsel submitted that where evidence is not effectively countered, the Court may hold that the party has proved his case. He relied on INTERNATIONAL NIGER BUILD CONST. CO. LTD VS GIWA (2002) FWLR (PT. 217) 1312 @ 1354; MOHAMMED VS O.H.L LTD (2001) FWLR (PT 30)1312 @ 1326. Counsel submitted that a Counter Claim is an independent action and that the Appellants failed to contest the counterclaim of the 5th to 7th Respondents.
Learned counsel urged the Court not to interfere with the findings of the learned trial Judge and to uphold the grant of the Counter Claim. In conclusion, learned counsel urged us to dismiss this appeal and to affirm the decision of the Lower Court for the reasons that:-
1. The Appellants failed to discharge the burden placed on them by Section 131 of the Evidence Act.
2. The Appellants who claimed that their father acted through the 4th Respondent in conducting Burial Ceremony of Ben Gillet Anwadike never called the 4th Respondent to testify for them thereby calling into play the provisions of Section 167(d) of the Evidence Act against the Appellants.
3. The Appellants who claimed their father is the 1st son of Ben Gillet Anwadike did not proffer any evidence why their father refused to take Igbu title in the life time of Samuel Anwadike.
4. The Evidence of 2nd Respondent who is a direct son of Ben Gillet Anwadike and who testified as D.W.2 is direct that Samuel Anwadike the father of the 5th to 7th Respondents is the 1st son of their father Ben Gillet Anwadike.
5. The Appellants having failed to file a Reply to the Counter Claim of the 5th to 7th Respondents have by implication accepted the facts proffered in support of the Counter Claim.
6. That the Appellants being Grandchildren of Ben Gillet Anwadike based their action on hearsay evidence and on speculations.
7. That no miscarriage of Justice occurred in the Judgment as the trial Court evaluated the entire evidence laid before it and came to the conclusion that the Appellants failed to discharge the burden placed on them to prove their case and not to rely on the weakness of Defence case to succeed.
RESOLUTION:
As indicated earlier, in the determination of this appeal I shall adopt the two issues formulated by the 3rd to 5th (5th to 7th) Respondents as they encompass all the issues distilled by the Appellants and the 1st Respondent. The issues are:
1. Whether the learned trial Judge was correct when he dismissed the Claim of the Appellants on the grounds that the Appellants have failed to prove their case against the Respondents.
2. Whether the learned trial Judge was correct when he granted the Counter Claim of the 5th to 7th Respondents.
ISSUE 1:
A good starting point is the subject of burden of proof and its incidence viz a viz the pleadings of the parties. In the case of OKOYE & ORS V NWANKWO (2014) LPELR-23172 (SC) (PP. 25-26, PARAS. F-E) PETER-ODILI JSC observed:
“The burden of proof in civil cases has two distinct meanings, viz: (a) The first is the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case; (b) The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always stable or static the burden of proof in the second sense i.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the other preponderates. In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-versa as the case progresses. Federal Mortgage Finance Ltd v. Ekpo (2004) 2 NWLR (Pt. 856) 100 at 130 per Olagunju, JCA; Balogun v. Labiran (1988) 3 NWLR (pt. 80) 66; Nwosu v Udeoja (1990) 1 NWLR (Pt. 125) 188; Elemo v. Omolode (1968) NMLR 359; Chigwu v. Baptist Convention (1968) 2 ALL NLR 294: Adegoke v. Adibi (1992) 5 NWLR (pt. 242) 410.”
It is not in doubt that the legal burden of proof in this suit rested squarely on the Plaintiffs/Appellants in the lower Court. The Appellants in their relief (C) prayed for a declaration that the second set of defendants are strangers by blood to late Ben Gillet Anwadike and are disentitled to inherit any of Ben Gillet Anwadike’s estates wherever situate in accordance with the said customary law of Aboh. The Appellants pleaded that the father of the 2nd set of Defendants was Samuel Akaya, the product of a union between one Mr. Jombo, a Sierra-Leonean copper working for Miller Brothers (UAC) and one Margaret Aguye Akaya of Onugwu. Evidence was led to that effect by PW1. The cross-examination of PW1 revealed that he did not know Mr. Jombo the Sierra Leonean personally; the little he knew was what he was told by his grandmother. On the pleading and evidence that Ben Gillet Anwadike never married Margaret Aguye Akaya and never had sexual intercourse with her; cross-examination of PW1 revealed that he was only 6 years at the time and was not in a position to know whether Ben Gillet Anwadike married Margaret or had sexual intercourse with her. Such matters he admitted are not discussed with six-year olds.
Although PW2 Ozegbe Uzor in his written deposition and under cross-examination testified that he knew Jombo and that he happens to be the father of Samuel Anwadike – that does not prove definitively the paternity of Samuel Anwadike. Section 131 (1) of the Evidence Act 2011 provides:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
From his cross-examination, the lower Court rightly dismissed the evidence of PW2 in these words:
‘It is to be noted that PW2 was born in 1922 and as such younger than Samuel who was born in 1911. PW2 later testified that he could not have known if Samuel as head of the family performed the funeral rites of Ben Gillet and that Ben Gillet did not confide in him about his affairs with Margaret Aguye Akaya. He admitted that the father of the Plaintiffs was his good friend and that he would defend his cause. I am satisfied that PW2 knows nothing about the paternity of Samuel other than that he was ?reputed? to be the son of Jombo, which is speculation.’
With all due respect, I agree with the learned trial judge that the evidence of both PW1 and PW2 was hearsay and speculative. Learned counsel for the Appellants had argued that in dismissing the evidence as hearsay, the learned trial judge failed to take into consideration the nature of the Plaintiffs? case which was purely a land matter in which traditional history is accepted in proof of ownership and title to land. It is true that traditional history which is mostly hearsay is generally acceptable in proof title to land. What is in issue here is not title to land. It is the question of paternity of Samuel and whether or not Margaret was married to Gillet. Hearsay evidence will be inadmissible in proof of any of those matters. I am of the firm view that the evidence adduced by the Appellants lacked the essential ingredients of proof that Samuel was the son of Jombo; such as would result in the evidential burden of proof shifting to the Respondents. The learned trial judge was perfectly correct when he observed at page 722 of the Record:
“I think it is necessary to reiterate the settled law that in a Claim for a declaratory relief the onus is on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the relief claimed. The Plaintiff must rely on the strength of his own case and not on the weakness of the Defence.”
The submissions of learned counsel for the Appellants on their issue 3 that the learned trial judge erred in relying on the evidence of DW1 (2nd Defendant) which contradicted his earlier oath, newspaper publication and documents signed by him as to the paternity of the father of the 3rd to 5th (5th to 7th) Respondents is of no moment as the evidential burden did not shift to the Respondents, the Appellants having failed to discharge the burden on them. As submitted by learned counsel for the 3rd to 5th Respondents, a plaintiff must first of all prove his case before seeking to enhance his case with beneficial facts obtained from the case of the defendant. Besides, the cross examination of DW1 on these matters showed that the Appellants did not pay due attention to all of the Exhibits including those tendered by the Respondents.
DW1 under cross-examination had explained that he did not mention the name of the father of the 5th to 7th Respondents in the affidavit he deposed to, Exhibit P3 because he was not a party in that particular case just as he did not also mention the name of the 4th defendant who was also a son of Gillet Anwadike. The Appellants? case was made worse by the fact that DW1, the direct son of Gillet Anwadike and the only one present during his father?s burial ceremonies testified that Samuel Ogbogu Anwadike (the father of the 5th to 7th Respondents) was present at the burial and performed the role of first son. DW1 debunked the evidence of PW1 that the role of the first son was performed by the 4th Respondent on behalf of their father Daniel Anwadike who was then abroad. Again, hearsay evidence as the Appellants failed to call any witness who actually attended the burial ceremony to support his claim. I wonder what happened to all the female children of Daniel Anwadike. They must have attended their father?s burial. In the absence of evidence from any other eye witness, it is only rationale that the evidence of DW1, an eye witness and direct son of Gillet would be preferred to the evidence of PW1, a grandson who was not even present at the burial.
The evidence regarding the ‘Igbu title’ further confirmed the case of the Respondents on the paternity of Samuel. ‘Igbu’ is a traditional title usually taken by a man’s first son on his death Samuel did not take it because it was claimed he was a Christian. By their custom the title cannot be taken by a younger son as long as his senior is alive. Samuel died in 1986. It was long after his death that Daniel Anwadike, the father of the Appellants and the 1st Respondent now took the title. The Appellants could not find any explanation for this. The Appellants had contended that the learned trial judge ought to have resolved the conflicts in the evidence of the parties by reference to the documents tendered by the parties which showed that Samuel was never mentioned as the son of Gillet Anwadike. This is not quite correct. Some of these documents referred to Samuel as first son. See for example the publication of Nigerian Mirror of 19/03/77 Exhibit T wherein some members of the Anwadike family insisted that Samuel Anwadike was the head of the family hence the observation of the learned trial Judge at page 734 of the Record that:
“It is clear from the tone of the Exhibits which were made in 1977 that there was already a contest between the father of the Plaintiffs and the 1st, 2nd and 4th Defendant’s including Samuel Anwadike. I am greatly surprised that the father of the Plaintiffs Daniel Kaiser Anwadike a British trained lawyer and a Chief Magistrate saw the position ascribed to Samuel Anwadike in the family as far back 1977 and did not take any steps to challenge it but rather lived with it till his death in 1991, This is a man who saw and knew his father Ben Gillet Anwadike and all his wives and was in a better position to know the circumstances of birth of Samuel Anwadike. Yet there is no evidence that he protested and raised the issue that Samuel was not a son of Ben Gillet. It is therefore a surprise that the Plaintiffs will raise an issue their father did not protest relying on completely hearsay evidence of not even what their father told them but their grandmother.”
The learned trial judge was right in his conclusion that the Appellants failed on the strength of their case to establish entitlement to declaration that the 2nd set of defendants are strangers by blood to late Ben Gillet Anwadike.
The Appellants in relief (d) claimed an account against the 1st and 2nd defendants (Albert Nwabuno Anwadike, Geoffrey Jideofo Dada Anwadike) of all rents and profits collected by them from tenants occupying No. 14, Bright Street, Onitsha from May 1981 until judgment and the payment of the money found due upon taking such account, after just deductions into Court for the benefit of the plaintiffs and the first set of defendants. On the issue of accounts, learned counsel for the Appellants in his brief of argument on issue 1 submitted thus:
8.02. A party must be held to the case put forward in his pleadings and he must prove his case as pleaded by him. By the instant case, the learned trial Judge went beyond his bounds and started making a case for the Respondents.
8.03 The Appellants pleaded in paragraph 27 of their first further Amended Statement of Claim that. .. “27 After the death of the plaintiffs’ father in 1991, the Plaintiffs called upon the first and second Defendants to render account to them of all sums of money collected by them from tenants occupying the estate. The 1st and 2nd Respondents prepared a, bogus account in which it was shown that the 8th to the 20th defendants and the 25th Defendant paid over N141, 000.00 (One Hundred and Forty-one Thousand Naira) to them up to the year 1992.
8.04 The 1st Respondent in paragraph 29 of their Third Amended Statement of Defence replied thus…,”29. The 1st and 2nd Defendants deny paragraphs 27, 28, 29 and 30 of the 3rd Amended Statement of Claim and put the plaintiffs to the strictest proof of every material allegation of fact therein contained. What the Plaintiffs described as “a bogus account” in paragraph 27 of their 3rd Amended Statement of Claim was prepared by the 2nd Plaintiff himself. The Statement of account of part of the expenses incurred by the family of Benjamin Gillet Anwadike for the burial and funeral ceremonies of Daniel Obiora Anwadike which the 2nd Defendant supplied to the 2nd Plaintiff was tampered with at pages ii, iii, iv and v of the Statement of account by the 2nd Plaintiff.” (see page 375 of the record).
8.05 It is clear that the Appellants and the 1st Respondent joined issues as to the rendering of account by the 1st and 2nd Respondents. The Appellants were not satisfied with the account rendered to them by the late 1st Defendant and the 1st Respondent. The late 1st Defendant and 1st Respondent claimed that the account they rendered was tempered with by the 2nd Appellant.
8.06 The learned trial judge at page 735 of the record held as follows:-
“… With respect to the claim for account which is for the period from 1981 until judgment. I can only say that it cannot be so since this Court had in 1996 appointed a receiver over the estate as regards the period between 1981 to 1996. I have critically examined the documentary evidence before the Court and I realized that even the Plaintiffs’ father was a great beneficiary of the expenses made from the family estate. Moreover Daniel Anwadike was alive until 1991. I therefore do not see how the Plaintiffs can jump over the head of their father to ask for account over the period the man was alive and when the Plaintiffs interest has not crystallized….?
8.07. In arriving at this decision, the learned trial judge failed to take into account the settled principle of law that both the Court and the parties are bound by the pleadings as formulated.
It is noteworthy that throughout the trial at the lower Court, the 1st Respondent did not apply to amend their pleadings. It is not their case that they were not bound to give account to the appellants which they did not give to the father when he was alive. It is equally not their case that because the Appellants’ father was a great beneficiary in a bogus account they gave to the Appellants, they were no longer bound to account to them. It is noteworthy that the said expenses were incurred by the late 1st Defendant and the 1st Respondent without the consent of the Appellants’ father when he was alive. It is our humble submission that the view expressed above by the learned trial judge is wrong.
8.08 A Court cannot play a role with a view to rendering support to any of the parties in a case before it. It is not the duty of a Court to make out a case which a party did not make. Any Court which does such will be descending into the arena. See SAMACO ENT. LTD v NEW NIGERIA BANK PLC (2006) ALL FWLR (pt 293) 193.
8.09. It is submitted with the greatest respect that the learned trial judge in the instant case descended into the arena by unsolicitedly amending the pleadings of the 1st and 2nd Respondents in order to enter judgment against the Appellants.
8.10 It is trite law that a Court is not competent to make a case for any party which that party did not make and then proceed to give judgment on the case so formulated contrary to the case put forward by the party before it. See KRAUS THOMPSON ORGANIZATION LTD V UNIVERSITY OF CALABAR (2004) ALL FWLR (pt 209) 1148.?
With respect, I do not see how the views expressed by the learned trial judge above can be interpreted to mean that his Lordship amended the pleadings of the parties. A Court of law has the right and is indeed duty bound to look at the processes filed by the parties, the evidence led and documents tendered, to evaluate, draw inferences and make findings based on them. The lower Court had to decide whether the Respondents can be ordered to render accounts to the Appellants. The Court looked at the processes and took the view that account cannot be ordered for the period 1981 until judgment for a variety of reasons. Firstly, the Court had in 1996 appointed a receiver over the estate for the period 1981 to 1996. Secondly, Daniel Anwadike was alive until 1991.
The Court did not see how the Appellants could be concerned about accounts up to 1991 when their father was still alive and supposedly in charge. Thirdly, as seen from the so called ‘bogus’ account, the father of the Appellants was a great beneficiary of the expenses made from the family estate. Fourthly, as the Respondents had actually rendered an account, it is for the Appellants if they felt that the account rendered was ‘bogus’ to show how they came by that conclusion. As submitted by learned counsel for the 1st Respondent the appellants should have called on the tenants (the 3rd set of defendants) to state precisely the amounts they paid to the 1st Respondent during the period. Instead, the Appellants applied to discontinue the suit against them. I am unable to agree with the Appellants that the learned trial judge descended into the arena to amend the pleadings of the Respondents or to fill gaps in their case in order to enter judgment for them. It was up to the Appellants to plead and lead evidence to back up their claim that the account rendered by the Respondents was ‘bogus’. This they failed to do and so were unable to establish that arm of their claim. On the whole, issue 1 is resolved against the Appellants.
ISSUE 2:
Whether the learned trial Judge was correct when he granted the Counter Claim of the 5th to 7th Respondents.
The further amended Statement of Defence of the 5th to 7th Respondents dated the 7th day of July 2009 and filed on the 8th day of July 2009 is at pages 383 – 392 of the Record. The counter-claim is at page 391 and reads as follows:
1. That the Defendants as direct children of the late Samuel Ogbogu Anwadike, the head or okpala of the late Ben Gillet Anwadike are entitled to inherit Samuel’s share of his entitlements in the estate of the late Ben Gillet Anwadike situate at 14 Bright Street, Onitsha in any event.
2. Injunction to restrain the Plaintiffs from canvassing the issue of partition of No. 14 Bright Street Onitsha as the Plaintiffs are not fit and proper persons to canvass the issue of partition.
3. The 5th – 7th Defendants aver that in as much as they are the sons of the late Samuel Ogbogu Anwadike, the late diokpa of Ben Gillet Anwadike, they are entitled under Aboh native law and custom to take the first share of any property divided or partitioned in the estate of Ben Gillet Anwadike.
4. An Order of Court restraining the Plaintiffs (other than the other children of Daniel Anwadile) from partaking in any distribution of the estate of 14 Bright Street Onitsha as they had been bastardized by late D.O. Anwadike under Aboh native law and custom and as such cannot claim or be entitled to any share of D.O. Anwadike’s estate.
Contrary to the claim of the 5th to 7th Respondents in their brief captioned ‘3RD TO 5TH RESPONDENTS’ BRIEF OF ARGUMENT page 19 at paragraph 7.02 that the Appellants did not file a Reply to the Counterclaim, the Appellants did in fact file a Reply at pages 410 and 411 of the Record. The Reply is dated 23/04/10 and filed 27/04/10. In the last paragraph (paragraph 5), the Appellants denied ?that the 5th – 7th defendants are entitled as counter claimed by them or at all and will ask the Court to dismiss their counter claim as frivolous and mischievous.”
A counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence. The burden rests squarely on the counter claimant to adduce evidence in proof on a balance of probabilities of his counter claim. See OGBONNA V A.G. IMO STATE & ORS (1992) LPELR ? 2287(SC). In the case of OROJA & ORS V ADENIYI & ORS (2017) LPELR-41985(SC) PETER-ODILI JSC observed:
‘There is a rich case law on the meaning and purport of a counter-claim and I shall have recourse to a few in aid at this point in time. See Effiom v Iron Bar (2000) 1 NWLR (Pt. 678) 341 where it was held thus-
‘A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs’ claim or raise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
See also the case of Okonkwo v. C. C. B. (2003) FWLR (Pt.154) 457 at 508, the nature of a counter-claim had been clearly spelt out as follows:-
“Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs.”
See also Hassan v Regd. Trustees Baptist Convention (1993) 7 NWLR (Pt. 308) 679 at 690, wherein it was held that:-
“The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
The question now is whether the 5th to 7th Respondents discharged the burden on them as far as the counter claim is concerned. The learned trial judge dealt with the counter claim at page 736 of the Record. At page 737 his Lordship summarily observed as follows:
It is important to note that neither the plaintiff nor the 2nd set of defendants are the direct children of Ben Gillet. DW1 is a direct son of Ben Gillet Anwadike and gave clear evidence that Samuel Anwadike was his eldest brother and first son of his father, Ben Gillet. I accept his evidence on the point. It is therefore my conclusion that the counter claimants have proved their counter claim.
His Lordship being of the view that all the parties do not object to the partitioning of the estate went ahead to order sharing in accordance with the Usokwu system depending on the number of wives that bore male children. He ordered that with the inclusion of Samuel Anwadike as a son of Ben Gillet, that the estate be shared into five parts with the 2nd set of defendants taking the first share in the position of their father. This aspect of the judgment with respect overlooked a very important point on which the parties joined issues, that is whether Margaret Aguye Akaya was indeed a wife of Ben Gillet Anwadike.
As the Usokwu system of sharing is only for wives who bore male children, if Margaret was not a wife to Gillet at the time she bore Samuel, then his sons the 2nd set of defendants would not be entitled to a share under the Usokwu system. The learned trial Judge did not rule on this matter which in my humble view is a grave omission. All his Lordship said in his judgment at page 722 of the Record is as follows:
‘…This law holds the plaintiffs responsible to prove the existence of Mr. Jombo and paternity of Samuel, the father of the 5th – 7th defendants. The issue of whether the mother of Samuel was married to Ben Gillet Anwadike is a secondary matter.”
This issue of whether or not the mother of Samuel was married to Ben Gillet Anwadike cannot be a secondary matter at least as far as the counter claim is concerned. If Samuel was borne out of wedlock, his descendants cannot inherit under the Usoku system of sharing. As I earlier stated, the counter claim is an independent action from the main claim.
Section 131 (1) of the Evidence Act 2011 provides:
“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
The 5th – 7th Respondents counter claimed inter alia that as direct children of the late Samuel Ogbogu Anwadike, the head or okpala of the late Ben Gillet Anwadike, they are entitled to inherit Samuel’s share of his entitlements in the estate of the late Ben Gillet Anwadike situate at 14 Bright Street, Onitsha in any event. The phrase ?in any event? is loaded but be that as it may, the burden lies squarely on the counter claimants to prove that Gillet Anwadike was married to their grandmother Margaret. I have already found under issue 1 that the learned trial judge was right in accepting the evidence of DW1, a direct son of Gillet that Samuel was his elder brother as opposed to the hearsay evidence of grandsons of Gillet that he was the son of one Mr. Jombo. On the question of whether Margaret was married to Gillet, learned counsel for the Appellants submitted that the case earlier put forward by the 5th – 7th Respondents and their witnesses was that their grandmother was not the wife of Ben Gillet Anwadike; that their father Samuel was born out of wedlock and that Gillet acknowledged his paternity. Much later in an amended Statement of Defence the Respondents somersaulted and now claimed that their grandmother was the first wife of Gillet Anwadike thereby putting forward a new case contrary to Order 15 Rule 8 of the High Court of Anambra State (Civil Procedure) Rules 2006.
This rule provides that ‘no pleading shall raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same?. There is no doubt that this amendment ought not to have been allowed. It appears to me that after pleadings were exchanged, the Respondents on noticing that they may not be able to inherit under the Usokwu system if their grandmother was not married to Gillet Anwadike now changed their pleading. Such an amendment ought not to have been allowed. See the case of YUSUF V ADEGOKE (2007) LPELR-3534(SC) where TOBI JSC of blessed memory observed:
“…the law recognizes a possible lapse or failure of the human memory; it has worked out procedures for amendment of pleadings to accommodate any possible lapse or failure. But the amendment of pleadings is not open ended, in the sense that an applicant can always succeed in his application for amendment. ”
For instance, where an application for amendment is designed to overreach the respondent, the Court will not grant the application. This arises when the applicant cleverly anticipates the core of the case of the respondent and seeks the amendment to frustrate the case with the result that the respondent fails at the end of the day. An overreaching conduct is a circumventing conduct to outwit the adverse party by cunning or artifice. It is designed to defeat the object or objective of the respondent’s case by going too far, in the sense of destroying the core or fulcrum of the respondent’s case.”
Having effected the amendment, the relevant point here is whether the 5th – 7th Respondents discharged the burden of proof that their grandmother Margaret was married to Gillet Anwadike. In spite of the lengthy cross-examination of the Respondents? witness on the point and the submissions of counsel, the learned trial judge glossed over the issue and did not rule on it. Learned counsel for the Appellant called on the Court to invoke the provision of Section 15 of the Court of Appeal Act to rehear and decide the issue as to whether or not the mother of Samuel Anwadike, Margaret Aguye Akaya was the wife of Ben Gillet Anwadike which issue according to Aboh native law and custom will entitle him to a share in the estate of Gillet Anwadike. Contrary to the contention of learned counsel for the 5th to 7th Respondents, all the materials necessary to enable the Court exercise the discretion are available in the Records. It will be a mere waste of time to remit the case back to the trial Court on this score. I shall set out the illuminating and succinct submissions of learned counsel for the Appellants at page 7 para 6.08 page 10 para 6.13 of their brief of argument:
“It is instructive that the 3rd-5th Respondents did not call any witness to disprove these very weighty facts. They merely relied on the unreliable testimony of the DW1 who claimed that the mother of Samuel, Aguye Akaya, was the first wife of Ben Gillet Anwadike until 1949 when their marriage was dissolved. He also claimed that he was ten years old when the marriage was dissolved. The Honourable Court is with the greatest respect referred to pages 667-668 of the record where DW1 under cross-examination stated as follows:-
Q. Do you know one Samuel Anwadike.
A. I know him. He is my senior brother (page 666 of Record).
Q. Do you know Margaret Aguye Akaya
A. She is the mother of Samuel Ogbogu (page 668 of Record).
Under further cross-examination at pages 675-676 of the Record, the DW1 stated as follows:-
Q. When did Ben Gillet Anwadike divorce the mother of Samuel Anwadike.
A. It was about 1949
Q. Were you born in 1949
A. I was born in 1939
Q. You were ten years when the marriage broke down
A. Yes.
Q. Do you know one Eseluenuego Michael Ozor the brother of Samuel Akaya.
Q. What of Joseph Newton the brother of Samuel Akaya.
A. I don’t know him in person but I heard of him.
Q. You mentioned in paragraph 40 of your deposition two men Michael and Joseph who are they?
A. I heard that they are brothers of Samuel Ogbogu Anwadike.
Q. You deposed that they bore their respective father’s name.
A. I heard that one is a white man called Newton and the other is Ozor,
Q. You and Michael who is older?
A. I don’t know Michael in person I think he may be older.
Q. What of Joseph
A. The same thing
Q. Put Michael and Joseph are older than you.
A. They are older.
Q. Michael and Joseph were born before the dissolution of the marriage.
A. It is not true
Q. Is it the custom of Aboh people for a child born during the customary marriage of two persons to bear the name of a man that is not married to his mother?
A. The child must bear the name of his mother’s husband.
Q. Why then would Michael and Joseph who you said are older than you bear the name of another man when their mother was married to your father until the 1949 dissolution?
A. The mother of Michael Joseph was no longer living with my father at the time of their birth.On further cross-examination at page 678 of the record, DW1 stated further.
Q. Is it the custom that a woman who is not a wife to the deceased can mourn his death (sic).
A. She cannot mourn the man because he is not her husband.
It is noteworthy that DW2 at page 631 of the record stated under cross examination as follows:-
Q. Is it correct that under Aboh custom a man can acknowledge the paternity of a child even when his mother is not married to him?
A. A man can accept and acknowledge a child even if he is not married to the mother of the child. Samuel Anwadike who was the father of the 5th-7th Defendants was so acknowledged by his father.
At pages 651-652 of the record, the DW3 under cross-examination stated as follows:-
Q. Who was the mother of Samuel Ogbogu who you said was a wife of Anwadike.
A. She was wife of Anwadike
Q. What was her name
A. Aguye
Q. How many children had Aguye
A. One child and that child is Samuel Ogbogu
Q. Did you ever meet her in Anwadike’s house as a wife?
A. I met her as such.
Q. When did you meet her living in Anwadike’s household?
A. I cannot remember the year because Ben Gilbert (sic) Anwadike died in 1958.
Q. Do you know if Aguye had other children for other men?
A. I don’t know about that.
Q. Put. You don’t know Aguye the mother of Samuel Ogbogu at all.
A.I know her very well. I know when she died.
Q. When did she die?
A. I cannot call (sic) the year but I know that we were informed about her death and we participated in her funeral.
Q. So she died as the wife of Ben Gillet Anwadike .
A. Yes.
It is submitted with the greatest respect that it is on record that Madam Margaret Aguye Akaya died on the 27th day of March, 1984 (see page 264 of Record). The 3rd-5th (5th to 7th) Respondents pleaded in paragraph 15 of their Statement of Defence dated 20/6/94 see page 759 of record that Margaret Aguye Akaya was not the wife of Ben Gillet Anwadike. The 4th (6th) Respondent deposed to the said fact in paragraph 28 of his Statement on Oath see page 770 of record. This continued to be his stand from 1993-2009 when he re-swore on Oath claiming that Madam Aguye Akaya his grandmother was the first wife of Ben G. Anwadike. It is instructive that DW6, the 6th Respondent did not even know the exact name of his alleged grandfather as shown in his answer under cross examination at page 702 of the record thus:-
Q. You have been referring to your grandfather as Ben Gilbert Anwadike.
A. He is Ben Gilbert Anwadike
Q. In your previous pleadings and sworn evidence on oath you claimed that your grandmother Margaret Akaya never married Ben Gilbert Anwadike?
A. She was married to Ben Gilbert Anwadike but they had a problem.
Q. You made a written deposition in this suit on 27/11/07; it was your first written deposition
A. Yes
Q. In that deposition you were emphatic that your grandfather never married Margaret Anwadike.
A. It is so written.
Q. It was written on your instruction.
A. Yes.
Q. Now you are saying a different thing that your purported grandfather married Margaret.
A. I am now saying that he married Margaret.
Q. You testified in Chief that Margaret married your grandfather
A. Yes.
Q. Did she mourn him as what. As a friend, wife or relation.
A. She mourned him as a wife.
My Lord, it is on record that Ben Gillet Anwadike died on the 20th day of March, 1958. It is also on record that DW1 told the Court that the alleged marriage between Ben. G. Anwadike and Margaret Aguye Akaya was dissolved in 1949. Would it be possible for Margaret Aguye Akaya to mourn Ben G. Anwadike as his wife in 1958? The answer is No.”
It is quite obvious that the evidence led by the 5th to 7th Respondents on the fact of the marriage between Margaret and Gillet is far from satisfactory.
Their initial story as shown in paragraph 15 of their Statement of Defence filed on 11/7/94 page 759 of the Additional Record of Appeal is that after the birth of Samuel, Gillet Anwadike approached her people and proposed marriage but that they refused. The case was fought on that story line for many years. It was in 2009 that the Respondents amended their pleading now claiming that Margaret was married to Gillet. There was no evidence other than the ipse dixit of DW1 which was totally shredded by the cross examination as shown above. There was unchallenged evidence that Margaret had several children by different men.
Two of them were older than DW1 who said he was born in 1939 and that Margaret and Gillet divorced in 1949. It was quite impossible that Margaret would have children for other men while still married to Gillet. DW1 even unwittingly went back to the original story line when under cross-examination he answered that a man can accept and acknowledge a child even if he is not married to the mother of the child; and that Samuel Anwadike the father of the 5th-7th Defendants was so acknowledged by his father. The conclusion then is that the 5th to 7th Respondents did not prove that their grandmother Margaret was ever married to Gillet Anwadike. Samuel Anwadike consequently had no Usokwu in Ben Gillet Anwadike?s family to justify the conclusion by the learned trial judge that his children were entitled to inherit under the Usokwu system. The result is that this appeal succeeds in part and is hereby allowed in part. Reliefs (a) and (b) of the Appellant?s claims granted by the learned trial judge minus the erroneous inclusion of Samuel Anwadike?s kitchen as the 5th Usoku are hereby affirmed. Reliefs (c), (d) and (e) of the Appellant?s claims and the counterclaim of the 3rd to 5th (5th to 7th) Respondents are dismissed. I make no order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in draft the Lead Judgment prepared and delivered my learned brother, CHINWE EUGENIA IVIZOBA, JCA. I agree entirely with His Lordship’s reasoning and conclusion which I respectfully adopt as mine. In this regard, I also hold that the appeal succeeds and the same is accordingly allowed by me. No order costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother CHINWE EUGENIA IYIZOBA, JCA and I totally endorse the reasoning and conclusion therein.
Paternity and marriage are not so interwoven that proof of paternity must necessarily imply marriage between the parents involved. Marriage determines inheritance under the Usokwu system and not paternity. 5th – 7th Respondents had to prove the marriage of their grandmother to Gillet Anwadike paternity. Failure to prove the existence of the said marriage is fatal to their entitlement to Usokwu as claimed.
For the more detailed reasoning in the lead judgment, I equally allow this appeal in part while adopting the consequential orders in the lead judgment as mine.
Appearances:
NO REPRESENTATION for the AppellantsFor Appellant(s)
N.F.P. EGONU, ESQ. for the 1ST RESPONDENT
BEN OSAKA, ESQ. with him G. UGWUANYI ESQ. for the 3rd 4th and 5th RESPONDENTS.For Respondent(s)
