IORPUU SOOM & ORS v. TYOTER SHIMA JIBO & ORS (2019)

IORPUU SOOM & ORS v. TYOTER SHIMA JIBO & ORS

(2019)LCN/13084(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/MK/157/2014

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. IORPUU SOOM
2. BEM AWAKA HUR
3. ZAKI NYITSE APEAKIGHIR
4. MRS. ANANEMWAM KOSON
5. PHILOMENA MSEVER KOSON Appellant(s)

AND

1. TYOTER SHIMA JIBO
2. TWAR ANZA JIBO
3. KWA KAAIOR JIBO
4. SAAMBE GBERTYO JIBO Respondent(s)

RATIO

WHETHER OR OT IT IS THE PRIMARY DUTY OF THE COURT TO EVALUATE THE EVIDENCE OF WITNESSES AND ASCRIBE ROBATIVE VALUE TO IT

Assessment of evidence with the attendant duty of ascription of probative value to it is primarily the duty of a trial Court. It is the duty of the trial Court to assess witnesses, form impression about them and evaluate the evidence having regard to the impression it formed of the witnesses. Where the trial Court not only assessed and gave value to the evidence before it but also leaves no one in doubt as to how and why in arriving at its conclusion it preferred the evidence of the respondent to that of the appellant, it is not the function of the appellate Court to set in and re- evaluate evidence as evaluation has already been properly carried out. It is only when the finding of the trial Court is shown to be perverse or against the trend of evidence that an appellate Court can interfere. See Fashanu v Adekoya (1974) 1 All NLR (Pt. 1) 35, Mogaji v Odofin (1978) 4 SC 1 and Okpa v State (2017) 5 NWLR (Pt. 1557) 1. PER EKANEM, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

WHETHER OR NOT THE COURT CAN MAKE AN ORDER AGAINST A NON PARTY TO A SUIT

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): Mr. Emmanuel Aondofa Akoson also known as Emmanuel Aondofa Merbee Jibo died sometime in August, 2013, in a hospital in Abuja and his body was deposited somewhere in Abuja. A dispute arose between the appellants and the respondents as to who is entitled to bury the body of the deceased and determine where he should be buried. The 1st, 2nd and 3rd appellants contended that the deceased was sired by Koson Hur Achakpa, their paternal relation and so they had the right to bury his remains. The respondents on the other hand contended that the deceased was the biological son of Merbee Jibo, their paternal relation and as such they had the right to bury his corpse. The common ground between the parties was that the 4th appellant is the mother of the deceased.

The scene of the epic battle for the corpse of the deceased and the right to bury it was the Upper Area Court of Benue State holden at Sankera(the trial Court). There the 1st, 2nd and 3rd appellants took out a writ of summons against the respondents claiming as follows:

?(a) A declaration that THE DECEASED EMMANUEL

AONDOFA is the biological son of Koson Hur Achakpa.
(b) A declaration that rather than the defendants, it is the plaintiff that have the right under Tiv native law and custom to bury and determine the place of burial of the deceased.
(c) An injunction perpetually restraining the defendants either by themselves, assign, privies or any person acting thorough any or all of them from interfering with the remains of the deceased wherever it may be and from burying the same other than in the place of choice of the plaintiffs.?

The respondent in turn filed a counter ? claim against the 1st, 2nd and 3rd appellants in the following terms:
?(a) A DECLARATION that the deceased Emmanuel Aondofa is the biological son of Merbee Jibo.
(b) A DECLARATION that under the Tiv native law and practice, it is the head of the family and principal members of the family that determine the site for the burial of a deceased family member.
(c) A DECLARATION that a person at adult hood determines his paternity.
(d) A DECLARATION that paternity declared by an adult before his demise is sacrosanct.

(e) AN ORDER OF PROHIBITION perpetually restraining the plaintiffs herein from interfering in any manner whatsoever with the remains of the deceased before, during and after burial.
(f) Any other consequential order(s) that this Honourable Court may deemed necessary to make the circumstances of the case.?

At the hearing, the appellants testified through five witnesses and tendered eight exhibits which were collectively marked as Exhibit ?A?.

The respondents called six witnesses and tendered nine exhibits collectively marked Exhibit ?B?.

After taking evidence and addresses, the trial Court dismissed the case of the appellants and granted the counter ? claim.

Aggrieved by the decision, the appellants appealed to the High Court of Justice, Benue State, holden at Sankera (the lower Court). The 5th appellant was granted leave to appeal by order of Court as a person interested.

The lower Court dismissed the appeal for lacking in merit. Still not satisfied the appellants have with the leave of Court further appealed to this Court by means of a notice of appeal which was amended by the order of this Court. The amended notice of appeal incorporates eleven grounds of appeal.

At the hearing of the appeal on 5/3/2019, N. E. Tsobaza, Esq., for the appellant adopted and relied on appellants? brief of argument filed on 2/5/2017 and deemed filed on the same date in urging the Court to allow the appeal. F. M. Z. Uwar, Esq., for the respondents adopted and relied on the respondents brief of argument filed on 7/6/2017 and deemed filed on 5/3/2019 in urging the Court to dismiss the appeal.

In the appellants? brief of argument the following issues are distilled from the eleven grounds of appeal for the determination of the appeal:
?1. Whether the respondents proved any principle of law or custom which entitled them to bury the deceased as against the appellants who are the relations of the deceased and in whose custody he died and whether in upholding the decision of the Upper Area Court, the learned justices of the High Court took into account the provisions of Section 12 Burials Law Cap. 23, Laws of Benue State, 2004 (Ground 7).
2. Whether the Justices of the High Court were right in holding that there was sufficient oral evidence to determine the case

in favour of the respondent without recourse to documentary exhibits tendered by the parties and whether the Court considered the admissibility of the documents on which it placed reliance to find for the respondents (Ground 1, 3, and 11).
3. Whether the High Court properly evaluated the totality of the evidence tendered by the parties dispassionately before upholding the judgment of the trial Court entered in favour of the respondents (Grounds 2, 4, 6, 8, 9 and 10).
4. Whether the High Court was right in upholding the judgment of the trial Court which made a case for the respondents other than which they made themselves and made others (sic; orders) against non parties in the action and whether this did not occasion a miscarriage of justice. (Ground 5).

In the respondents? brief of argument, one issue is formulated for the determination of the appeal. The issue is:
?Whether or not having regards to the totality of evidence adduced at the trial, the judgment of the Court below cannot be sustained without recourse to documentary evidence tendered at the trial.?

Surprisingly, the respondents? counsel abandoned the issue formulated by him and proceeded to present argument in respect of the issues formulated by appellants? counsel. This, with due respect, is not good brief writing. Where respondent?s counsel formulates his own issues, he is to present arguments under the issues formulated by him and not abandon his issues to present arguments under the issues formulated by appellants? counsel. For the sake of attaining justice in this appeal, I shall overlook the error on the part of respondents? counsel.

For the purpose of determining the appeal, I shall adopt the issues formulated by appellants? counsel though issues 1, 2, and 4 are framed as compound issues. I propose to deal with issue 1 first before treating issues 2 and 3 together, and finally issue 4.

ISSUE 1
Appellants? counsel referred to relief (b) in the counter ? claim of the respondents and submitted that no defence witness testified as to the custom of Tiv people regarding burial and as to why the respondents, as the paternal relations of the deceased, had superior claim to his remains as against the 4th and 5th appellants, the deceased?s mother

and sister. He noted that the trial Court raised four issues for determination and did not resolve the second issue, viz; who between the parties is entitled to the remains of the deceased. It was therefore his submission that the lower Court erred in upholding the decision of the trial Court as if the finding that a person is a biological son of another automatically entitles that person to the relief sought as a matter of course without stating under what principle of law or statute the person is entitled to the relief.

Counsel submitted that the error is made more manifest by a consideration of Section 12 of the Burials Law Cap. 23 Laws of Benue State 2004. He also referred to Section 2 of the same law and the Black?s Law Dictionary 2nd ed. It was his view that the closest relatives, of all the contending parties, to the deceased are the 4th and 5th appellants, his mother and elder sister, respectively.

He contended that the claim of the respondents was founded on customary law, i.e., that they were the persons entitled to bury the deceased. He noted that though the trial Court made it an issue for determination, the trial Court did not make

any finding as to why the ?father? of the deceased (who was found to be the son of Merbee) was the one entitled to bury the remains of the deceased. He stressed that no evidence of customary law was placed before the Court and the trial Court did not make any finding on the customary law of Tiv people regarding the burial of dead bodies to oust the right conferred on appellants by statute.

On his part, respondents? counsel stated that the respondents proved the customary law of Tiv people as to burial through the evidence of DW1, the District Head of Tsaav. He further stated that the Burials Law imposes a duty on the relatives of the deceased person, in the absence of executors, to bury his body; that since the respondents are the relatives of the deceased and there is evidence that the Jibo family have a custom of burying their relations at the Jibo family house, the lower Court properly acted in accordance with the Burials Law of Benue State.

RESOLUTION
The claim of the appellants and that of the respondents at the trial Court respectively was as to their right to bury the body of the deceased and also determine the place of

such burial. The case of both sides was founded on their conflicting claims that the deceased was sired by a member of their respective families. For the appellants, their case was that the deceased was begotten by Koson Hur Achakpa, a member of their family. The respondents? case was that the deceased was sired by Merbee Jibo, a member of their family. It was principally on the basis of the paternity of the deceased that the case was fought at the trial Court.
Reliefs (a) and (b) in the writ of summons and the counter ? claim bear re ? statement hereunder:
In paragraph 8 (a) and (b) of the writ of summons, it is claimed thus:
?(a) A Declaration that THE DECEASED EMMANUEL AONDOFA is the biological son of Koson Hur Achakpa.
(b) A declaration that rather than the defendants, it is the plaintiffs that have the right under Tiv native law and custom to burry (sic) and determine the place of burial of the deceased.”
In paragraph 18 a and b of the counter ? claim, the respondents claimed –
?a. A DECLARATION the deceased Emmanuel Aondofa is the biological son of Merbee Jibo.

b. A DECLARATION that under the Tiv native law and practice, it is the head of the family and principal members of the family that determine the site for the burial of a deceased family members.?
It is therefore clear that the appellants and respondents are ad idem that under Tiv native law and custom, it is the paternal relations of a deceased person who have the right or entitlement to bury his body or corpse.
It is no doubt the law that customary law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed. See Chukwueke v Nwankwo (1985) 2 NWLR (Pt. 6) 197, 206 – 208 and Husseini v Mohammed (2015) 3 NWLR (Pt. 1445) 100, 132. But it seems to me that where the contending parties agree, expressly or by implication, about an applicable customary law then the need to prove the same may not arise.
In Temile v Awani (2001) 12 NWLR (Pt. 728) 726, 753 ? 753, the plaintiff pleaded and relied in paragraphs 4 ? 9, 18 and 20 of their further amended statement of claim on Itsekiri native law and custom, applicable to the transaction in issue, namely; grant of land. It was averred that under Itsekiri native law

and custom, such a gift conferred on the allotee exclusive or absolute ownership. The averment was not controverted and the defendant did not join issues thereon in the statement of defence. The only averment of the defendant was that the plot was never allocated to the plaintiff. Karibi ? Whyte, JSC, held that the defendant thus impliedly conceded that such a right according to the Itsekiri native law and custom will only not accrue if the plot was not allocated to the plaintiff by the head of the family. His Lordship concluded at page 753 that – ?It seems to be accepted by both parties that in Itsekiri native law and custom such a family gift of land conferred on the allotee the exclusive and absolute ownership of the property.?
Since pleadings are not filed and exchanged in the Upper Area Court, to determine the claims, issues and subject therein, an appellate Court is to look carefully not only at the claim but the entire proceedings. See Fasina v Ogunkayode (2005) 12 NWLR (Pt. 938) 147, 161 and 162. A study of the claim and counter ? claim and the entire proceedings shows clearly that the parties were on the same page

regarding Tiv native law and custom regarding burial, viz; that the paternal relations of the deceased have the upper hand in the burial of his body. It follows therefore that the need to lead evidence to prove the relevant Tiv native law and custom did not arise.

More importantly, it is necessary to remember that the trial Court was the Upper Area Court, a customary Court by nature. By Section 20 (1) of the Area Courts Law, Benue State, an Area Court shall in civil causes and matters, inter alia, administer the customary law prevailing in the area of its jurisdiction or binding between the parties. The sole Judge thereof is presumed to have Tiv native law and custom in his bossom and so the need for evidence thereon did not arise. See Nana Gyebi Ababio ll v Kweku Nsemfo of Kokooin 12 WACA 127 and Dada v Faleye (2007) All FWLR (P. 349) 1134, 1145 ? 1146.

Appellants? counsel submitted that the lower Court disregarded the Burials Law of Benue State in affirming the decision of the trial Court. The point as to the Burials Laws was not the basis upon which the parties? case was fought at the trial Court and the lower Court.

It constitutes a fresh issue for which leave to raise ought to have been sought and obtained. This makes the issue or point incompetent. See Stool of Abinabina v Enyimadu (1953) 12 WACA 171, Akinpelu v Central Bank of Nigeria (1977) 1 SC 47 and Osho v State (2018) 3 NWLR (Pt. 1637) 474. I therefore discountenance the point.
Again, the contention of the appellants in this Court seems to be that they are the mother (4th appellant), sister (5th appellant) and maternal relations of the deceased and are therefore entitled to bury the body of the deceased by virtue of Sections 2 and 12 of the Burials Law of Benue State. That is why appellants? counsel stated at page 8 paragraph 3. 0 of his brief of argument that –
?It should be noted that the trail (sic) Court did not resolve issue 2, which is the crux of the dispute between the parties and he did not say why the respondents as paternal relations to he (sic) deceased had a superior claim to him (sic) remains and on what principle.”
At page 9 paragraphs 3:15 and 3:16 of the same brief counsel stated that the closest relatives of the deceased are the 4th and 5th appellants (his mother and

elder sister, respectively) and that the Burials Law vested the right and duty to bury the deceased in the appellants as relatives of deceased.
That was not the case presented by the appellants at the trial Court and which the lower Court reviewed. An appeal is not a new action but a continuation of the very dispute in the original action. Therefore a party is not permitted on appeal to change the case he made right from the trial Court. See Edebiri v Edebiri (1997) 6 NWLR (Pt. 509) 360, PDP v INEC (2014) 17 NWLR (Pt. 1437) 525 and Odom v PDP (2015) 6 NWLR (Pt.1456) 527. Therefore the point as to the right of the appellants to bury the body of the deceased as maternal relations of his as well as mother and sister ought to be discountenanced.
Being an intermediate appellate Court, I will nevertheless consider the point. Section 12(1) of the Burials Law of Benue State states:
?(1) The duty of causing the body of a deceased person to be buried is imposed on the persons following:-
(a) The executors of the deceased.
(b) In the absence or default of an executor each and every one of the relatives of the deceased;

(c) In the absence or default of the relatives, the occupier of the premises on which the body lies
Section 2 of the law defines relative as including a connection by marriage. Section 12 (1) of the law imposes the duty of burying the body of a deceased person on;
(i) the executors of the deceased;
(ii) in the absence or default of executors, each and every one of the relatives of the deceased.
(iii) in the absence or default of the relatives, the occupier of the premises on which the body lies, in that order of ranking.
The definition of the word ?relative? in Section 2 of the law to include connection by marriage does not set aside the Tiv native law and custom that the paternal family of the deceased had the superior right or claim to bury his corpse as between his relatives.
Consequent upon the foregoing, I resolve issue 1 against the appellants.

ISSUE 2 and 3
Appellants? counsel referred to the observation of the lower Court that there was enough oral evidence to decide the case without the documentary evidence, Exhibits A and B. He submitted that this was wrong as an appeal calls for an

examination of the whole evidence, oral and documentary, before the lower Court. Counsel lamented that the lower Court used oral evidence to discredit one of the documents constituting Exhibit A, viz; the National Identity Card showing the birth of the deceased to have been in 1969. Counsel noted that the document was unchallenged. He raised a query as to whether the deceased who was an adult and of sound mind did not have information about his date of birth for the purpose of supplying it in his National Identity Card. Counsel submitted that it is settled that documentary evidence should be used as hanger from which to test oral evidence while oral evidence comes in handy to throw light on documentary evidence.

It was his contention that since the lower Court held that it was necessary to produce birth certificate to prove the date of birth of the deceased, it should also have held that it was necessary to produce affidavit of change of name before upholding the finding of the trial Court that the newspaper produced was sufficient for the purpose of proving change of name of the deceased. He added that the lower Court ought to have expunged the newspaper

since it was not certified or produced from the custody of the National Library of Nigeria.

He qualified the evidence of defence witnesses as hear ? say as it was a narrative of what the 4th appellant purportedly said or did with regard to the paternity of the deceased.

Counsel contended that the lower Court failed to properly evaluate evidence in upholding the judgment of the trial Court. He set out, in summary form, the evidence of defence witnesses and re-stated that their evidence was based on what the 4th appellant told them about the deceased. He noted that the 4th appellant was not in cross ? examination, asked questions as to her introducing the deceased as the child of Merbee Jibo or living with and having a child for him. He submitted that having failed to do so, the evidence of the respondents on those facts by the defence witnesses went to no issue. He submitted that the lower Court erred in acting on the evidence of the 4th appellant to uphold the case of the respondent because the trial Court found that the 4th appellant was not a witness of truth.

For the respondents, it was submitted by their counsel that the documents, Exhibits A and B, were contradictory; whereas Exhibit A series tended to prove that the deceased was the child of Koson, Exhibit B series proved that the deceased was a child of Jibo. For this reason, he stated, the Court had to x ?ray oral evidence to see where the scale of justice tilted. Again, he asserted, the lower Court for that reason took the view that is being challenged viz; that the matter could be resolved with oral evidence regardless of documentary evidence. He referred to the evidence of DW1, DW2, DW3 and DW4 which he contended showed that the deceased was Merbee Jibo?s son. He argued that the evidence of PW1 (the 3rd appellant) was fatal to appellants? case.

Counsel submitted that Exhibits A and B do not have any impact on the judgment of the lower Court. He added that the exhibits were considered by the lower Court.

Arguing issue 3, respondents? counsel stated that the DW?2, the deceased person?s wife, gave evidence of what he told her and what he had done to show that he is a descendant of Jibo. He submitted that this was well within Section 44 of the Evidence Act.
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Resolution
Assessment of evidence with the attendant duty of ascription of probative value to it is primarily the duty of a trial Court. It is the duty of the trial Court to assess witnesses, form impression about them and evaluate the evidence having regard to the impression it formed of the witnesses. Where the trial Court not only assessed and gave value to the evidence before it but also leaves no one in doubt as to how and why in arriving at its conclusion it preferred the evidence of the respondent to that of the appellant, it is not the function of the appellate Court to set in and re- evaluate evidence as evaluation has already been properly carried out. It is only when the finding of the trial Court is shown to be perverse or against the trend of evidence that an appellate Court can interfere. See Fashanu v Adekoya (1974) 1 All NLR (Pt. 1) 35, Mogaji v Odofin (1978) 4 SC 1 and Okpa v State (2017) 5 NWLR (Pt. 1557) 1.

The trial Court after assessing evidence before it found in favour of the respondents. The lower Court did not see any ground to interfere with the conclusion of the trial Court and so it affirmed the same. At page 239 of the

record, the lower Court observed as follows:
?To our mind there is hardly any need for the lower Court to have dwelt much on Exhibits ?A? and ?B? to determine this case in view of the copious evidence of facts put forward before the lower Court by way of oral evidence.?

This was a fleeting or passing observation by the lower Court which cannot be the subject of an appeal. It is at page 246 of the record that the lower Court stated as follows:
?We earlier made a fleeting remark that there was no need for the lower Court to have dwelt exhaustively in consideration of the said Exhibit.?

This lower Court did not outrightly deprecate the use to which the trial Court put the exhibits before it. Rather, it was of the opinion that there was enough oral evidence to resolve the contention before the trial Court especially as the documentary evidence was in conflict.

It needs be re-stated that the main issue at the trial Court was as to the paternity of the deceased namely; whether he was the son of Koson Hur Achakpa or Merbee Jibo. While the appellants? case was that Koson was the biological

father of the deceased, the respondents took the position that Merbee Jibo was the deceased?s biological father.

The DW5 testified in cross ? examination that Merbee died in 1966. In one of the documents in the Exhibit A series, viz; National Identity Card of the deceased it is recorded that the deceased was born in 1969. On this account, appellants? counsel submitted that Merbee Jibo who died in 1966 could not have sired the deceased who was born in 1969. At page 169 of the record the trial Court held as follows:
?The document tendered upon by the plaintiffs to determine the age of the deceased is not synonymous with statutory declaration of age or birth certificate. It is the law that when the court is called upon to state the age of a person it is only the statement on oath of that person or the birth certificate of that person that weight will be attached to.?

The lower Court at page 242 of the record, in affirming the decision of the trial Court held:
?In any case, who provided the information in the National Identity Card relating to the date of birth of Aondofa in 1969. The poser is opposite (sic)

in view of the fact that there is no clear evidence from any of the parties as to the exact date of birth of the deceased. Not even by the PW3? so the National Identity Card is of doubtful provenance and the information contained therein cannot be believed hook, line and sinker as if it is a declaration of age which is on oath or a birth certificate.
We therefore agree with the learned trial Upper Area Court Judge that the National Identity Card of the deceased was not sufficient material to determine the age of the deceased and thus hold excluding the possibility of Merbee Jibo fathering the deceased Emmanuel Aondofa. This is particularly so in view of copious other facts put in evidence which suggest that Merbee Jibo fathered the deceased

I think that it was not right or rather it was inaccurate for the lower Court to hold that the National Identity Card was of doubtful provenance. This is because there was no contest that it was the deceased?s National Identity Card issued by the National Identity Management Commission which is empowered by Sections 5 (b) (c) and (d) 18 and 19 of the National Identity Management

Commission Act 2007 to register and issue multi – purpose identity card to Nigerians and non – Nigerians. Nevertheless that error is of no moment. This is because the National Identity Card of the deceased was tendered through the PW5 (the deceased?s sister) who is not an official of its maker, namely; NIMC. The PW5, of – course, was not the person to whom it was issued and no explanation was offered as to why an official of NIMC was not called to tender the document and be asked questions thereon. She was thus not in a position to answer questions thereon. In the case of Buhari v INEC (2008) 18 NWLR (Pt. 1120) 246, 391 ? 392 the Supreme Court held that-
?Weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document. One such person the law identifies is the one who did not make the document. Such a person is adjudged in the eyes of the law as ignorant of the content of the document.? See also Haruna v Modibbo (2004) 16 NWLR (Pt. 900) 487, Osuoha v State (2010) 16 NWLR (Pt. 1219) 364, 411, Okereke v Umahi (2016) 11 NWLR (Pt. 1524)

438, 472 and Udom v Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179, 243 ? 244.

Contrary to the argument of appellants? counsel, it is immaterial that the document was admitted without objection. This is because admissibility of evidence including documentary evidence is one thing but the weight to be attached to it is a different matter. See Gbafe v Gbafe (1996) 6 SCNJ 167, 177, Agballah v Chime (2009) 1 NWLR (Pt. 1122) 373, 443 ? 444 and Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 452, 522.

Appellants? counsel contended that the lower Court was gravely in error when it used oral evidence to discredit documents. This, according to him, is because documentary evidence should be the hanger from which to test oral evidence. I have already held that no weight could be attached to the National Identity Card of the deceased. Apart from the said identity card, the appellants tendered in evidence other documents marked as Exhibit A, viz; First School Leaving Certificate, Certificate of attendance of Secondary School. Statement of result of Kaduna Polytechnic, Testimonial of the Federal Polythecnic, Mubi, HND ? Business

Administration, Federal Polytechnic, Mubi, Statement of result, Post graduate diploma ? Benue State University, Statement of Result ? MBA, Ukum Local Government Certificate of Origin. All these showed the deceased as Emmanuel A Koson, Emmanuel Aondofa Koson, Aondofa Koson, Emmauel Koson or Koson Aondofa Emmanuel.
On the other hand, the respondents via DW2, deceased?s wife, tendered documents in Exhibit B series including deceased?s certificate of state of origin, letter of re-instatement, Vanguard newspaper of 20/12/2010, (change of name) Certificate of birth of deceased?s children. All these documents showed the deceased as ?Jibo?.
The two sets of documents were in conflict. It became necessary to explore oral evidence to resolve the conflict. In Ejezie v Anuwa (2008) 12 NWLR (Pt. 1101) 446, 448, Tobi, JSC opined that-
?What is the legal position where documentary evidence is in conflict as in this appeal? It is clear that there is conflict in the letters in respect of the representation and substitution in this matter. How can this be resolved? The law seems to be silent. It is my humble

view that in such a situation, oral evidence should be led to resolve the conflict in the documentary evidence. This should be taken as an exception to the law that oral evidence should not add or subtract from the documentary evidence which speaks for itself.?
Though the opinion of Tobi, JSC, was expressed in his dissenting judgment which has no binding force, it is my humble view that it accords with common sense and I adopt it.

I agree with the lower Court that there was enough oral evidence to decide the issue of the paternity of the deceased. The trial Court found the testimony of the PW3 (4th appellant and mother of the deceased) to be inconsistent and contradictory; so it rejected it. The lower Court affirmed the finding. So her evidence could not be used to determine the paternity of the deceased. I see no reason to reverse that position as there was enough evidence to support it.
The trial Court after evaluating evidence concluded at page 172 that –
?From the evidence of the plaintiffs and their witnesses what is clear is that they do not know who was the father of the deceased, on the other hand what could be deduced

from the evidence is that the deceased must have been (born) long after the death of Koson, and it is Merbee Jibo who was the father.”

The lower Court at page 243 of the record affirmed the above as follows:
?Therefore, Koson who died after the birth of only PW5 could not have come from the grave to father the deceased who was the fourth child of the woman, i.e. the 5th defendant?
All the above stands the claim of the respondents/defendants that the deceased Emmanuel Aondofa is the son of Merbee Jibo more within the prospects of belief as against the puerile claim of the appellants/plaintiffs.?

The above findings of the trial Court and the lower Court constituted concurrent findings of fact. An appellate Court will not upset concurrent findings of fact except in exceptional circumstances. See Ometa v Nuna (1934) 11 NLR 18, Egwin v State (2013) 13 NWLR (Pt. 1372) 525 and Nwankwoala v FRN (2018) 11 NWLR (Pt. 1631) 397. I fail to see any exceptional circumstance to warrant an interference in the concurrent findings of fact. In fact the evidence of PW1 and other witnesses makes it clear that Koson the husband of the

deceased?s mother, died after the birth of their first child (5th appellant) and it is common ground that the deceased was her fourth child. In other words, Koson died before the second child of the deceased?s mother (Mbaoron) as well as her third child (Mngusonon) were born. It follows therefore that the deceased could not have been sired by Koson. Taking judicial notice of the fact that gestation period is nine months and, to be generous, if I assume that the 4th appellant gave birth to her children after every nine months, the most that can be said is that the deceased was born more than 2 years and three months after the death of Koson. It is therefore inconceivable that Koson sired the deceased. There is enough evidence to support the finding that Merbee Jibo begot the deceased. This includes the evidence of DW5 as to the 4th appellant becoming pregnant and giving birth to the deceased while living with Merbee. So also the evidence that the deceased?s mother introduced him to the Jibo family as their child (see evidence of DW3) and that the deceased was received as such and settled down to play his role in that family as such.

It was appellants? counsel?s contention that having failed to cross ? examine the PW3 on her evidence that the deceased was from Koson family, all the evidence elicited from the defence witnesses went to no issue. This contention has no factual basis as she was cross ? examined thereon at page 56 of the record.

All the gripe by appellants about Exhibits A and B and affidavit to support change of name by the deceased are, as was found by the lower Court at pages 246 of the record,
minor issues that cannot affect the strong evidence on record that Merbee Jibo is the biological father of the deceased thus making the deceased ? a sibling of the defendants/counter-claimants.”
I therefore resolve issues 2 and 3 against the appellants.

ISSUE 4
Appellants? counsel contended that the lower Court erred in holding that the order made by the trial Court against the 5th appellant who was not a party at the trial Court was justified. He submitted that the Court has no power to make an order against a person who is not a party to a suit. It was his position that a Court cannot give judgment

against a party to a suit and then make a consequential order against a person who is not a party. Again, he argued that 5th appellant could not be held to be a privy of the 4th appellant.

Counsel for the respondents argued that since the 4th appellant (the mother of the 5th appellant) was a party to the suit and the 5th appellant testified at the trial, the Court was right to have made an order against her. He asserted that the body of the deceased was in the custody of the 4th and 5th appellants and so the order on them to release the body was a consequential order.

Resolution
The trial Court, after upholding the counter ? claim of the respondents, ordered as follows:
?The 5th defendant to the counter-claim/PW3 and PW5 shall severally and jointly released to the defendants the remains of Emmanuel Aondofa Jibo within three days from today.?

The trial Court affirmed the order as being a consequential order and for the reason that she is a heir to the 4th appellant. Not being a party to the suit at the trial Court, the 5th appellant obtained leave of Court to appeal against the order.

A Court of law has no power to make an order or give a judgment against a non ? party to a suit. Such an order is not only wrong but is also a nullity. See Attorney ? General of Lagos State v Attorney ? General of the Federation (2003) 111 LRCN 1867, 2000 ? 2001 and Oyeyemi v Owoeye (2017) 12 NWLR (Pt. 1580) 364, 402. This is because giving judgment or an order against a non – party to a suit is a breach of his fundamental right to fair hearing. It is of no moment that the 5th appellant testified at the trial, as there is a difference between a party and a witness. A party is served with all the processes of Court and has opportunity to file processes in response thereto but a witness has no such opportunity. If the respondents intended that an order should be made against her, it was their duty to join her in their counter ? claim as defendant.
It is of no moment that the proceedings were before the Upper Area Court. This is because the position of the law that no order can be made against a non ? party is derived from Section 36 (1) of the Constitution of Nigeria, 1999 (as amended) and the rules of natural Justice which apply to all

authorities including the trial Court. Again, it is a rule of common sense and therefore should be observed by all adjudicating bodies including the trial Court. See Fasina v Ogunkayode supra.
As to the 5th appellant being heir of the 4th appellant, the Black?s Law Dictionary 8th ed. P. 740 defines heir, in part as follows:
?1. A person who, under the laws of intestacy, is entitled to receive an intestate decedent?s property?
2. Loosely (in common ? law jurisdictions), a person who inherits real or personal property, whether by will or by intestate succession.”
The word ?decedent? refers to:
?a dead person especially one who has died recently? ? Black?s Law Dictionary supra. 435.
So long as the 4th appellant is still alive, the idea of giving judgment against the 5th appellant as heir of the 4th appellant does not arise.
I therefore resolve issue four in favour of the appellants.

On the whole, I find no merit in the appeal except in respect of the order made against the 5th appellant. I hereby set aside the order as it affects the 5th appellant only.

The appeal is consequently dismissed and the judgments of the two lower Courts are affirmed except in respect of the order as it affects the 5th appellant.
The parties shall bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the Judgment just delivered by my learned brother, Ekanem, J.C.A. Being in accord with my Lord’s reasoning and conclusion, I adopt same as mine.

Thus, in the light of this and the detailed reasons in the lead Judgment, I also dismiss the Appeal and uphold the Judgment of the lower Court, except for the Order made against the Appellant, which Order I also set aside. Accordingly, I endorse the consequential Orders made, including the Order as to costs.

ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, Joseph Eyo Ekanem, JCA, made available to me in advance copy of the Judgment just delivered in which this appeal was dismissed. I agree with, and adopt as mine, resolution of the issues raised therein as well set out by my learned brother.

This appeal is also dismissed by me. I abide by the orders made in the lead Judgment including the order as to costs.

Appearances:

E.N. Tsobaza, Esq.For Appellant(s)

F.N.Z. Uwar, Esq.For Respondent(s)

Appearances

E.N. Tsobaza, Esq.For Appellant

AND

F.N.Z. Uwar, Esq.For Respondent

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