ADEMOLA BABATUNDE EMMANUEL v. EMMANUEL OIGBOCHE
(2018)LCN/12174(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/L/1155/2014
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“The Supreme Court in the case of AKINBADE & ANOR v. BABATUNDE & ORS(2017) LPELR-43463(SC) (Pp. 40-41, Paras. E-B) per OKORO, J.S.C., expounded on what proper evaluation of evidence entails thus: ‘Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of Nasarawa State & Ors (2012) LPELR-20602 (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) LPELR-279 (SC); (2011) 17 NWLR (Pt. 1276) 422.'” PER JAMILU YAMMAMA TUKUR, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
ADEMOLA BABATUNDE EMMANUELAppellant(s)
AND
EMMANUEL OIGBOCHERespondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in SUIT NO: ID/506/1998 delivered by Honourable Justice Candide-Johnson on 16th December, 2013, wherein the Court gave judgment in favour of the Respondent.
The material facts leading to this appeal, are that the Respondent acting on the belief that he was entitled to title over two plots of land, located in Alakuko, Lagos State, instituted an action in the lower Court via a Writ of Summons dated 26th February, 1998, claiming the following:
1. A declaration that the Plaintiff is by virtue of purchase vide purchase receipts dated the 27th June, 1988, 13th January 1994, 7th November, 1994 and 30th May, 1995 entitled to all that piece or parcel of land (2 plots) situate, lying and being at George Street, Alakuko, Lagos State, which is more particularly described and delineated on Survey Plan No. AT/LA/1683 drawn by W.T. Adeniji, a Licensed Surveyor.
2. One Hundred Thousand Naira (N100,000.00) general damages.
3. A perpetual injunction restraining the Defendants by themselves, Agents, Servants and/or privies from further trespassing in whatever manner on the land the subject matter of this action.
Both parties filed requisite processes, with the Appellant filing a Statement of Defence and Counter Claim dated 22nd April, 1998, by which he claimed ownership of the said property. At the end of a full trial, the learned trial Judge found that the Respondent had the better title to the land and dismissed the Defendant’s Counter Claim.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 19th December, 2013, and filed on 21st December, 2013.
The Appellant’s Brief settled by K.O. Bakare Esq., of Ajumobi Chambers is dated and filed on 20th July, 2016, but deemed properly filed on 23rd October, 2017. The Appellant’s Reply Brief is dated 25th October, 2017 and filed on 1st November, 2017.
Appellant’s counsel formulated a sole issue for determination to wit:
Whether from the pleadings filed and evidence led by the respective parties before the Honourable Trial Court, the Honourable Trial Court, properly evaluated the evidence before it in coming to its decisions as contained in the judgment delivered on the 16th day of June, 2013 (Ground 1)
On the other hand, the Respondent’s Brief settled by A.O. Adenuga of F. Okunuga & Co., is dated 31st August 2016 and filed on 8th December, 2016, but deemed properly filed on 23rd October, 2017.
Respondent’s counsel adopted the issue raised by the Appellant.
I also adopt the sole issue raised by the Appellant for the purpose of convenience in the determination of this appeal.
ISSUE:
WHETHER FROM THE PLEADINGS FILED AND EVIDENCE LED BY THE RESPECTIVE PARTIES BEFORE THE HONOURABLE TRIAL COURT, THE HONOURABLE TRIAL COURT, PROPERLY EVALUATED THE EVIDENCE BEFORE IT IN COMING TO ITS DECISIONS AS CONTAINED IN THE JUDGMENT DELIVERED ON THE 16TH DAY OF JUNE, 2013 (GROUND 1)
Learned counsel for the Appellant argued that the trial Court did not discharge its duty to properly evaluate the evidence of the parties at trial, in light of the fact that the material contradictions between the pleadings and evidence of the Respondent as to the exact location and time of purchase of the two plots of land in dispute, meant that the finding of the trial Court that the Respondent was entitled to title over the property was perverse and this Court ought to reevaluate the evidence.
He relied on the following cases:
Chief Mukajla Kotun & Ors v. Mrs. Adeola Olasewere (2010) 1 NWLR (Pt.1175) 436; Iliya Lagga v. Audu Yusuf Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 474; Clifford Osuji v. Nkemjika Ekeocha (2010) 1 NSCR 130 at 162; Osazuwa v. Isibor (2004) FWLR (Pt.194) 387; Ayuya v. Yonrin (2011) ALL FWLR (Pt.583) 1842 S.C; Okamgba v. Eke (2009) 16 NWLR (Pt.1166) 1 at 15; Military Governor of Lagos State v. Adeyiga (2012) 5 NWLR (Pt.1203) 29 SC; and Registered Trustees of the Diocese of Aba v. Helen Nkumi (2002) 1 SC 19.
Learned counsel sought to substantiate the above by first arguing that the claim of the Respondent as to the subject matter of the land was not certain, as different portions of his case at trial seemed to make a claim as to four plots, then claiming two plots, before making an admission that the two plots of land behind the land in dispute is not in issue and secondly arguing that in paragraph 6 of the Further Amended Statement of Claim dated 28th February, 2011, the Respondent pleaded that he paid N60,000.00 (Sixty Thousand Naira) on 27th June 1998 to Mrs Yemisi Aina Owojori, but in the Witness Statement on Oath deposed to on 7th February, 2006, he did not state the time he paid for the two plots.
He pointed out that it was improper for a purchase receipt and deed of conveyance evidencing a transaction that took place on 27th June, 1998, being dated on the same day the transaction took place that is 27th June, 1998, and submitted that the trial Court ought not to have admitted the said documents in the absence of explanation as to the variation in the dates of the transaction and the document.
Learned counsel for the Appellant submitted that a proper evaluation of the evidence would reveal that the Appellant is entitled to title over the two plots of land (in front) at George Street, Alakuko, Lagos State and should be granted a declaration of title to land over it because he had proven with certainty the identity of the land to which his claim relates.
He relied on the case of Benedict Otanma v. Kingdom Youdubagha (2006) ALL FWLR (Pt.300) 1579 at 1590-1591.
On the other hand, learned counsel for the Respondent argued that the question of the pleading being at variance does not arise at all, due to the fact that although the Respondent did not state in his Written Disposition, the date of the transaction he had with Mrs. Yemisi Owojori, there is no evidence in support of the averment of a transaction had on the 27th day of June 1998, therefore the averment is deemed to have been abandoned.
Counsel also argued that there is no doubt about the identity of the property in dispute as paragraph 3 of the Respondent’s Further Amended Statement of Claim properly describes it, especially with reference to more detailed description in a Survey Plan No. AT/LA/1683 drawn by W.T. Adeniji, a licensed surveyor, and that paragraph 3 of the Further Amended Statement of Defence and Counterclaim of the Appellant admits same. He further stated that the trial Court in a part of its judgment found at page 229 of the records made a definite finding of fact as to identity which was not appealed against, and as such is subsisting.
He relied on the case ofNdiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 131-140.
He submitted that the reliefs granted by the trial Court were in accordance with the reliefs sought in paragraph 17(a), (b) and (c) of the Further Amended Statement of Claim, and that the judgment of the trial Court is valid and ought to be left undisturbed by this Court.
He cited the case of Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326 at 347-348.
In the reply brief, learned counsel for the Appellant submitted that concessions made by the Respondent’s counsel in paragraphs 2.9 and 2.11 of the Respondent’s brief, in describing the part of the land belonging to the Appellant as ‘in front’ further shakes the consistency of Respondent’s claim and is aligned with Appellant’s position.
He also submitted that the concession by the Respondent’s counsel in paragraphs 4.15 and 4.16 of the Respondent’s brief to the effect that there was no evidence in support of the averment that the transaction took place on 27th June, 1998 and that the averment is therefore deemed abandoned, is fatal to Respondent’s claim as the transaction of 27th June, 1998 was the substratum of his claim at trial.
RESOLUTION
There is no doubt that it is the trial Court who has the primary duty of evaluation of evidence. He must examine every relevant and material evidence before him, and make findings of fact on every crucial issue in controversy in order to reach a decision one way or the other.
This Court in the recent case of UMORU & ORS v. ADAMA & ANOR (2018) LPELR-44383(CA) (Pp. 23-24, Paras. D-F) per MUSTAPHA, J.C.A., reiterated this trite position of law thus:
“It is trite law that the evaluation of evidence adduced in a trial by a witness, and the ascription of probative value to such evidence are matters within the exclusive competence of the trial Judge who has the advantage of seeing the witnesses of watching their demeanor, and of hearing them give evidence, see SULE O. ASARIYU v THE STATE (1987) 4 NWLR (Pt.67) 709. Evaluation of evidence essentially comes in two distinct forms, i.e. findings of fact based on the credibility of witnesses, and findings of the Court based on evaluation of evidence presented before it, in the first instance appellate Courts are usually reluctant in differing with the trial Court, because it is the trial Court that actually sees and hears the witnesses before it, and in the process watched their demeanours, and for that reason alone, the conclusions of the trial Court ought to be accorded some degree of respect.
See: CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD v. AKINGBADE (2016) LPELR (SC); OGUNYEMI & ORS v. SONEYE & ANOR (2018) LPELR-44877(CA).
There is also no contention that this Court is statutorily imbued with the requisite jurisdiction to evaluate or re-evaluate evidence led at trial in certain circumstances, particularly where the trial Court either fails to evaluate the evidence at trial at all, or does so, but in an improper manner.
See: Section 15 of the Court of Appeal Act; AFOLABI & ORS. v. WESTERN STEEL WORKS LTD & ORS.(2012) LPELR-9340(SC); ABUBAKAR v. USMAN (2018) LPELR-44089 (CA); BASSEY v. VITAMALT PLC (2017) LPELR-42545(CA).
It is however not in all circumstances that an Appellant invites this Court to re-evaluate evidence, that this Court would heed such an invitation. The circumstances in which the Court would interfere with the duty of the trial Court has been established over a long line of cases. The import of which has been alluded to above. The Supreme Court in the case of AIYEOLA v. PEDRO (2014) LPELR-22915(SC)(P.37, paras.B-F) per PETER-ODILI, J.S.C. gave a comprehensive guideline on when an appellate Court ought to interfere in the evaluation of evidence thus:
“The attitude of the Court of Appeal or the Supreme Court as the case may be, in respect of evaluation of evidence of a trial Court is that in deciding whether or not a trial Court properly evaluated the evidence, the essential focus should be on whether the trial Court made proper findings and reached the correct judgment upon facts before it. It is not the method or approach that necessarily determines this. Thus, so long as a trial Court does not arrive at its judgment merely by considering the case of one party before considering the case of the other, its judgment if right will not be set aside simply on the method of assessment of the evidence or approach to the entire case it may have adopted. Ajibulu v Ajayi (2004) 11 NWLR (Pt.885) 458; Woluchem v. Gudi (1981) 5 SC 291.”
This Court gave a comprehensive standard as to what an Appellant must do to move this Court to invoke its power to re-evaluate the evidence in the case of RUKUJE v. DEBA(2018) LPELR-44422(CA)(Pp. 34-35, Paras. A-E) per Abiru, J.C.A.
“It is trite law that the power of interference and re-evaluation of evidence is not one that an appellate Court exercises just because an appellant has asked for it. The privilege of having an appellate Court exercise the power must be earned by an appellant showing a compelling and cogent reason for its exercise. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties simply because an appellant made an allegation of improper evaluation of evidence and formulated it one of the issues for determination. An appellate Court will only do so where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice.
Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373. An appellant has a duty to show how the findings made the lower Court are perverse – Ude Vs State (2016) LPELR-SC.64/2013 & SC.65/2013. In Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, the Supreme Court stated: “… it is the primary duty of the trial Court to evaluate evidence and draw the right conclusions. An appellate Court, inspite of the fact that it has to deal with very cold facts same having been reduced to writing and made the record of the trial Court’s proceedings, re-evaluates evidence if it is established that the trial Court fumbled.”
See: OKAM & ORS v. IGWE & ANOR (2018) LPELR-43685(CA); AGBOOLA v. AUDU (2018) LPELR-44981(CA); and ADESIGBIN & ORS v. NB PLC(2018) LPELR-43852(CA).
The question that must therefore be answered at this junction is what constitutes proper evaluation of evidence? To properly evaluate evidence, what the trial Court must do is to take note of the claims of both parties, aptly consider all the pertinent issues raised by them, examine the evidence, both oral and documentary adduced by the parties and then make findings on the issues.
The Supreme Court in the case of AKINBADE & ANOR v. BABATUNDE & ORS(2017) LPELR-43463(SC) (Pp. 40-41, Paras. E-B) per OKORO, J.S.C., expounded on what proper evaluation of evidence entails thus:
“Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji v. Odofin (1978) 4 SC P. 91, Lafia Local Government v. The Executive Governor of Nasarawa State & Ors (2012) LPELR-20602 (SC) (2012) 17 NWLR (Pt. 1328) 94. Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve.
The belief must be a reasoned preference of one piece or version of evidence to the other. See Alhaji Jimoh Ajagbe v. Layiwola Idowu (2011) LPELR-279 (SC); (2011) 17 NWLR (Pt. 1276) 422.”
See: STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2018) LPELR-44053(CA); ONWUGBELU V. MEZEBUO & ORS (2013) LPELR-20401 (CA); and ONI v. JOHNSON (2015) LPELR-24545(CA).
A cursory glance at the Judgment of the lower Court revealed that the learned trial Judge was not found wanting in the evaluation of the evidence as contended by learned counsel for the Appellant. The central question before the learned trial Judge was who had a better title between the Appellant and the Respondent.
In the quest to resolve the issue the learned trial Judge as shown in the record considered the pleadings, the evidence of the parties, and their written addresses before arriving at his findings that the Respondent had a better title on the premises that the claimant?s purchase price evidenced by Exhibit G dated 13-1-1994 was first in time to the Defendant’s Exhibit 1 payment receipt dated 24-2-1994, relying on the decision in the case of Gabriel Adewole Tewogbade Vs Mrs V.A.Obadina 1994 4NWLR (Pt.338) 326 @ 347 – 348 where it was held thus:-
“where two contesting parties trace their title in respect of the same piece or parcel of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor. The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land a subsequent purchase under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him.”
The other point of note which the learned trial Judge dealt with to my satisfaction was the issue raised by the Appellant before the lower Court regarding the identity of the land in dispute. The learned trial Judge found in his judgment, that from the pleading of the parties the identity of the land in dispute was not an issue. That position is in my view correct adverting my mind to the pleadings in paragraph 3 of the Claimants further amended statement of claim, the Claimants averred thus:-
CLAIMANT’S PARAGRAPH 3
The Claimant aver that the land the subject matter of this Suit is situate, lying and being along Alakuko Expressway, Alakuko via Alagbado, Lagos, Lagos State and in move particularly described and delineated on Survey Plan No: AT/LA/1683 drawn by W.T. Adeniji, a Licensed Surveyor. The Claimant will at the trial of this suit rely on the said Survey Plan.
Paragraph 3 of the Defendants further amended statement of defence and counter- claim read thus:-
DEFENDANT’S PARAGRAPH 3
The Defendants admit paragraphs 1.2 and 3 of the Statement of claim.
It was upon the resolution of the point raised with regard to the identity of the land in dispute that the learned trial Judge considered the whole evidence adduced by the parties in arriving at his findings. Learned counsel for the Appellant has invited us to re-evaluate the evidence. The evaluation of evidence no doubt is the exclusive prerogative of the trial Court that had the opportunity of seeing, hearing and assessing the trustworthiness of the witnesses who gave evidence in proof of pleaded facts.
The Court of appeal will only interfere where the trial Court failed to discharge this duty. Where however, as is shown in this appeal the trial Court’s decision evolved from the evidence in proof of the case of parties before it this Court cannot interfere to set same aside since it is not perverse. See Akanmode & Anor Vs Dino & Ors (2008) LPELR 8405 (CA); Alasia Vs Okoh & Ors (2011) LPELR 4175 (CA); Usen Vs State (2012) LPELR 20063 (CA). CPC & Anor Vs Ombugadu & Anor (2013) LPELR 21007 (SC).
Adverting my mind once again to the judgment of the lower Court I am satisfied that the learned trial Judge had discharge his duty of evaluating the evidence before him in line with the established principles of the law and there is no basis for accepting the invitation of learned counsel to interfere with the findings of the lower Court.
The sole issue distilled by the Appellant is resolved against him. The appeal is dismissed and the judgment of the lower Court delivered on 16th December, 2013 is affirmed.
There shall be costs of One Hundred Thousand Naira (N100, 000.00) in favour of the Respondent against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I am in total agreement with the succinct lead judgement written by my learned brother, Jamilu Yammama Tukur, JCA in this appeal: which I read in draft, that this appeal is completely devoid of merit as the lower Court had completely, proficiently and correctly appraised the facts and properly evaluated all the materials evidence adduced by the parties in line with firmly established judicial principles before arriving at its decision in the case before it.
I join in dismissing the appeal in terms of the lead judgement.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A.
Appearances:
K.O. Bakare For Appellant(s)
A.O. Adenuga For Respondent(s)
