AGBONWANEGBE v. ADEDA
(2022)LCN/16084(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, May 20, 2022
CA/B/216/2020
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MRS. STELLA AGBONWANEGBE APPELANT(S)
And
MRS. JANET ADEDA RESPONDENT(S)
RATIO
THE DUTY OF THE APPELLATE COURT WHEN HEARING AN APPEAL
The duty of an appellate Court when hearing an appeal was thus stated in the case of Ngwu & Ors v. Onuigbo & Ors (1999) LPELR — 1992 (SC):
“For as Karibi-Whyte, JSC cautioned in Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484 at page 492:- Ajadi v. Okenihun (1985) 1 NWLR (Pt 3) 484 at page 492:- “It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled.” The above appears to be an echo of the immortal words of Hurley C. J. sitting at the High Court of Northern Nigeria in the case of Igboke Oroke v. Chukwu Ede (1964) NNLR 118 at pages 119-120:- “It is the business of a trial Court to decide disputes by trying cases. It is not the business of an appeal Court to re-open disputes by trying cases again: an appeal Court’s duty is to see whether trial Courts have used correct procedure to arrive at the right decisions. An Appeal Court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial Court and not in the appeal Court, each party must make the whole of his case in the trial Court and call all his witnesses there, he should not be allowed to improve on his case in the Appeal Court.”
Per ONU, JSC(P. 12, paras. A-E).
See also Arisa v. The State (1988) LPELR-553 (SC) PP. 18-18, paras F-A, Atanda & Ors v. Ajani & Ors (1989) LPELR-589 (SC) P, 13 paras A-D. PER ABUNDAGA, J.C.A.
WHETHER OR NOT A PLAINTIFF MUST RELY ON THE STRENGHT OF HIS CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
It is settled law that in an action for declaration of title to land, the onus is on the plaintiff/claimant, to prove his title and he must rely on the strength of his case and not on the weakness of the defence — See the following cases
Pada v. Galadima & Anor (2017) LPELR-4276 (SC) P. 35 paras B-C, Akinola & Anor v. Oluwo & Ors (1962) LPELR-25101 (SC) P.3 paras B-C, Ugwu & Ors. v. Ogbuzuru & Ors (1974) LPELR-3328 (SC), P. 11 paras A-D, Onwubuariri & Ors. v. Igboasoyi & Ors. (2011) LPELR-754 (SC) P. 24 paras C -E, Edosa & Anor v. Ogiemwanre (2018) LPELR—46341 (SC), P.41 paras D-F. PER ABUNDAGA, J.C.A.
WHETHER OR NOT A DOCUMENTARY EVIDENCE THAT SUPPORTS ORAL EVIDENCE BECOMES MORE CREDIBLE
It is settled law that when documentary evidence supports oral evidence, oral evidence becomes more credible – See Eya & Ors v. Olapade & Anor. (2011) LPELR-1184 (SC), p. 17 paras D-E.
Where, as in this case, the oral evidence lacks probative value, it will amount to a sheer waste of precious time to consider the documentary evidence. Usually, the documentary evidence should and ought to serve as a hanger from which to assess the veracity of the oral testimony. This can also be so when the oral testimony itself has probative value, and not like in this case where the said oral testimony has been so discredited. PER ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Edo State, holden in Benin City, in Suit No. B/253/2008 delivered by Hon. Justice D. U. Okungbowa on 14th October, 2019.
The judgment is predicated upon the claims of the claimant (now appellant) against the defendant (now respondent) whereof in her amended statement of claim, she sought the following reliefs:
“1. The sum N5,000,000.00 (Five Million Naira) being special and general damages.
2. An order declaring the deed of transfer made in 1977 in respect of the irregular one room apartment by the defendant as fraudulent and therefore null and void.
3. A declaration that the entire premises of 78 feet by 156 feet and 168, 2nd East Circular Road is the property of the claimant, having duly paid consideration.
4. An order on the defendant to pay all supposed rent in respect of the twin one-bedroom apartment and the two-bedroom apartment unoccupied upstairs from May, 2005 to August, 2008 amounting to N400,000.00 for the one bedroom and N280,000.00 for the two-bedroom apartment.
5. An order on the defendant to pay all supposed rent of the twin one-bedroom apartment and the two-bedroom apartment unoccupied upstairs from September, 2008 till judgment is delivered and also to replace the staircase or payment of its equivalent.
5b. An directing the defendant to pay equitable rent to the claimant to this matter from when her leasehold (sic) expired to (sic) 2007 to whenever this matter is disposed of.
6. Perpetual Injunction restraining the defendant, her agents, privies or any person whosoever deriving authority from the defendant from dealing with or interfering with the right of the claimant in and over the property (storey building) and the entire premises measuring 78 feet by 156 feet being (not excluding the one room irregular apartment) situate and known as 168, 2nd East Circular Road, Benin City in any manner however having effect of prejudice or adversely affecting the right of the claimant.”
The amended statement of claim can be located at pages 234-236 of the record of appeal.
The claims were denied by the defendant in her amended statement of defence of 20 paragraphs. See pages 328-331 of the record of appeal.
Consequent upon the denial of the claims, the matter went to trial at which both sides called witnesses and tendered documentary evidence admitted in evidence as exhibits. On the conclusion of the evidence, parties through their respective counsel filed final written addresses which were adopted. In the resulting judgment, the learned trial Judge dismissed the claims of the claimant, hence the instant appeal, being the expression of the claimant’s displeasure with the judgment.
The notice of appeal which contains six grounds of appeal was filed on 9th December, 2019. The record of appeal was transmitted on 13th November, 2020, and obviously out of time, it was regularized, and deemed properly compiled and transmitted on 19/1/22.
The appellant’s brief of argument, settled by C. E. Agbonwanegbe was filed on 10/5/2021, and deemed properly filed and served on 19/1/2022.
In reaction to the appellant’s brief of argument, the respondent filed along with her brief of argument a notice of preliminary objection. Both were filed on 31/3/2021. They were settled by the respondent’s counsel, Christopher Aghoja. The respondent’s brief of argument which was filed out of time, was regularized, and deemed properly filed and served on 19/1/22. Arguments in support of the Notice of Preliminary Objection were incorporated in the respondent’s brief of argument.
The appellant reacted to the respondent’s brief of argument and the Notice of Preliminary Objection in her reply brief which was filed on 10/6/2021, and deemed properly filed and served on 19/1/2022.
At the hearing of the appeal which was set down for hearing on 2/3/22, the respondent’s counsel adopted the arguments in support of the respondent’s notice of preliminary objection while the appellant’s counsel also adopted arguments in the reply brief in relation to the notice of preliminary objection. Thereafter, the appellant’s brief, the respondent’s brief and the reply brief in reply to issues in the respondent’s brief were adopted.
In law, a notice of preliminary objection seeks to terminate the appeal in limine. See Order 10 Rule 1 of the Court of Appeal Rules, 2021. Therefore, the Court has a duty first of all in this appeal to consider the notice of preliminary objection in order to determine whether or not the merits of the appeal can be determined.
The grounds upon which the notice of preliminary objection was brought are:
“(1) Ground five of the notice of appeal is incompetent as it did not attack any ratio decidendi in the judgment of the lower Court.
(2) Issue two formulated from ground five is incompetent.
(3) Issues two and three formulated from ground three of the notice of appeal is incompetent.”
Arguing the objection, it was submitted that ground 5 of the notice of appeal did not arise from the judgment of the lower Court as it did not attack any ratio decidendi in the judgment. Reliance was placed on the case of MTN (Nig.) Communications Ltd v. Abubakar (2015) All FWLR (Pt. 760) 414. That issue 2 formulated from the incompetent grounds 5 is also incompetent and ought to be struck out. The case of Osunde v. Azodo (2015) 45 WRN 99 is relied on.
It is contended in relation to issues 2 and 3 that having been formulated from ground 3, it is incompetent on ground of proliferation and ought also to be struck out.
Countering these submissions, the appellant’s counsel in the reply brief argued that the preliminary objection is not a suitable method of challenging the competence of a ground of appeal. Counsel refers to the case of SPDCN Ltd. v. Amadi (2011) 14 NWLR (Pt. 1266) 157 at 183, to submit that the sole purpose for a notice of preliminary objection is to object to the hearing of an appeal, and no more. Further placed reliance on the case of Matab Oil and Gas & Anor v. Fundquest Fin. Serve & Anor (2020) 31 WRN at page 147, where the Court held:
“A preliminary objection is a procedure to be adopted where a respondent objects to the hearing of an appeal. The purpose of preliminary objection is to terminate the appeal in limine. It is therefore a procedure adopted only against the hearing of an appeal and not any other reason/purpose.
See ADELEKAN v. ECU-LINE NV (2006) 12 NWLR (Pt.993) 33.”
Counsel proceeded to urge the Court to strike out the preliminary objection as same he submits is incompetent.
This issue needs no belabouring. The case of Matab Oil and Gas & Anor. v. Fundquest Fin. Serve & Anor. (supra) seals up the issue. This point is further underscored by Order 10 Rule 1 of the Court of Appeal Rules. Simply put, a preliminary objection can only be employed where the sole purpose is to have the appeal terminated on ground of incompetence. Where the grouse of respondent is that some grounds of appeal and/or issues only are incompetent, leaving others on which the appeal can still be maintained, the appropriate method is to bring a motion on notice for the striking out of those grounds.
It is therefore apparent that the preliminary objection is incompetent, and is hereby struck out.
I shall proceed to the substantive appeal having disposed of the preliminary objection.
Four issues were crafted for determination in the appellant’s brief of argument. The issues are:
“1) Whether the trial Court did not fail in its legal duty when it admitted records of previous criminal proceedings in the present civil suit? (Distilled from ground 1).
2) Whether the learned trial Judge correctly evaluated the documentary evidence tendered before him by the Claimant (now Appellant) in proof of her case at the trial Court. (Distilled from grounds 3 and 5).
3) Whether the trial Judge failed in his legal duty by ignoring the testimony of the Appellant’s vital witnesses at the trial Court thereby placing the wheel of justice on a reverse gear. (Distilled from ground 3).
4) Whether the learned trial Judge failed in his legal duty when he construed the records of the claimant’s witnesses at the Magistrates Court to be previous hand writing of two witnesses as envisaged in Section 232 of the Evidence Act, 2011 and this substantially led to a miscarriage of justice. (Distilled from ground 2).”
SUBMISSIONS ON THE ISSUES
ISSUE ONE
Whether the trial Court did not fail in its legal duty when it admitted records of previous criminal proceedings in the present civil suit?
It was submitted for the appellant that it is settled law that proceedings in a criminal case cannot be admitted and/or used to influence a civil case and as such record of proceedings in a criminal charge are inadmissible in a civil case. Counsel relies on the case of Abubakar v. Joseph (2008) WRN 57 lines 15 & 25. On this submission, counsel contended that exhibits B and E are inadmissible. That the findings of fact in a criminal case are of no moment and cannot be used to establish a civil case. It was further submitted that there was enough evidence before the trial Court that would have been used to resolve the relevant issues between the parties.
Further submitted is that where inadmissible evidence has been admitted, it is the duty of the Court to disregard such evidence. Relies on the case of Alao v. Akano (2005) vol. 126 LRCN at pages 850 JJ & 851 AA. Therefore, submitted that exhibits D and E should have been expunged. Counsel contended that by admitting the said exhibits the trial Court failed to evaluate other relevant documents.
Reiterating further on the issue, it was submitted that the learned trial Judge ought to have treated the admitted exhibits as inadmissible. That even if it was admitted to discredit appellant’s witnesses such evidence is not permissible to be treated as one of truth. Counsel relied on the case of Durosaro v. Ayorinde (2005) vol. 126 at p. 1020.
The Court is therefore urged to resolve issue one in favour of the appellant.
ISSUE TWO
Whether the learned trial Judge correctly evaluated the documentary evidence tendered before him by the Claimant (now Appellant) in proof of her case at the trial Court.
- SUBMISSION OF COUNSEL
It was submitted for the appellant that the learned trial Judge failed in his duty of evaluation of the documentary evidence before the Court. It is contended that the appellant proved a valid title to the land by tendering exhibit A, corroborated by the evidence of CW4 (Eze Daphey) who, counsel submits told the Court that no part of the property was sold to the respondent either by his brother or by him. That the evidence was not challenged sufficiently by the respondent. It was contended that the respondent’s document of title was fraudulent and the particulars of fraud pleaded. That witnesses were called to prove fraud. It was also contended that the evidence was not challenged by the respondent. That the evidence not so debunked nor controverted ought to be relied on by the Court. That the respondent who claimed that the document was made in 1987 and not in 1977, but backdated to 1977 by counsel who prepared it did not call the counsel to corroborate her testimony. That the appellant to establish fraud called other witnesses who knew nothing about the sale to the defendant. It was reiterated that the trial Judge was in error in not properly examining and evaluating the evidence led by the appellant. It was further contended that where parties have embodied the terms of their agreement into written documents, no extrinsic evidence is admissible to add, to vary or contradict the terms of such written instrument. Counsel placed reliance on the case of Ogundepo v. Olumesan (2012) Vol. 203 LRCN p. 170 ZEE. Submits that the respondent’s evidence that the lawyer that prepared the said document backdated it, is parole evidence, and the evidence, counsel submits cannot extinguish the fact that the document (exhibit “G”) was obtained by fraud.
Another point canvassed at the instance of the appellant is that where there are joint owners of a land, a valid sale can only take place where there is an agreement of all joint owners. That when the opposite happens the sale becomes null and void. Reliance is placed on Olowo Foyeku v. A. G. Oyo State (1996) 10 NWLR (Pt. 477) 190. Submits with reference to evidence on record that the property is owned by Uchenna Daphpw and Eze Daphey (CW4). That, however, the document relied on (exhibit “G”) shows that only one of the owners signed, by reason of which, counsel submits the sale is void. Further relied on is the case of Sake Estates (Nig.) Ltd v. Kukoyi (1976) 1 CCHUJ 29. It was urged on this Court that the trial Court having failed to evaluate the documentary evidence, this Court should undertake the evaluation and allow the appeal. On the power of this Court to undertake the evaluation, the case of Emeka v. Okoroafor & Ors. (2017) Vol. 268 LRCN is referred to and relied on.
ISSUE THREE
Whether the trial Judge failed in his legal duty by ignoring the testimony of the Appellant’s vital witness at the trial Court thereby placing the wheel of justice on a reverse gear.
Learned counsel for the appellant harped once more on the trial Court’s duty of evaluation, and the appellate Court’s reluctance to interfere except where the findings are perverse. The case of Igbikis v. The State (2017) Vol. 269 LCRN 172 was relied on. Counsel accused the learned trial Judge for his failure to properly evaluate the evidence before him. Running through the evidence, counsel points out that the evidence led by the appellant which clearly proved the appellant’s title was not challenged by the respondent who did not lead any evidence to show that she was indeed the owner of the property. Counsel urged this Court to resolve this issue in favour of the appellant and to allow the appeal.
ISSUE FOUR
Whether the learned trial Judge failed in his legal duty when he construed the records of the claimant’s witnesses at the Magistrates Court to be previous hand writing of two witnesses as envisaged in Section 232 of the Evidence Act, 2011 and this substantially led to a miscarriage of justice.
It is submitted for the appellant that the learned trial Judge misconstrued the provision of Section 232 of the Evidence Act, 2011 in admitting the statements made by witnesses in the criminal proceedings at the Magistrates Court. It is contended that the conditions precedent for the application of the said section were not fulfilled because there was no relationship between both cases apart from the fact that the parties were “similar”. It was further contended that the proceedings in a criminal case cannot be admitted in a civil matter. The case of Abubakar v. Joseph (supra) is relied on,
Further emphasizing, counsel submitted that the statements of the witnesses at the Magistrate’s Court was never at anytime related to the proceedings at the lower Court, nor was it relevant. The statements, counsel submitted were inadmissible at the lower Court due to the failure to meet the condition for its admissibility as provided in Section 232 of the Evidence Act. The judgment, counsel submitted was perverse as it did not reflect the totality of the evidence adduced by the parties by reason of failure of the trial Judge to evaluate the said evidence.
Concluding, the appellant’s counsel impressed upon the Court to allow the appeal and set aside the judgment of the trial Court upon the erroneous belief that issues two and three crafted by the appellant are incompetent.
The respondent submitted only two issues for determination; to wit;
“(1) Whether exhibits “B”, “E”, “21”, “H”, “H1” and “H2” were properly admitted in evidence. (Ground 1).
(2) Whether the learned trial Judge was right in law when he held that appellant’s witnesses have been discredited with their evidence in exhibits “B”, “E”, “E1” “H”, “H1” and “H2″. (Grounds 2 and 3 of the notice of appeal.”
SUBMISSIONS ON THE ISSUES
ISSUE ONE
Whether exhibits “B”, “E”, “21”, “H1” and “H2” were properly admitted in evidence.
It is submitted for the respondent that exhibits “B’ “E”, E1, “H1” and “H2” at pages 345F-345R are previous testimonies of CW3, CW4 and erstwhile 2nd claimant in the Magistrates Court in Charge No. MEV/360C/2005. It is submitted that the lower Court was right in admitting them in evidence. It is submitted that the evidence in previous proceedings may be used in subsequent proceedings for the purpose of cross-examination and contradicting the witness, and that the same evidence if an admission against interest may be used as estoppel against that person or his representative in interest. Counsel places reliance on Section 232 of the Evidence Act, 2011. Submits further that the issues in both the case at the Magistrates Court and the lower Court revolve around the ownership of the one-room apartment.
It is pointed out that before the exhibits were tendered the attention of CW3, CW4 and 2nd claimant were drawn to the previous statements as shown in the record of proceedings, and were tendered when the witnesses denied making the statement in order to contradict them in line with the decisions of the Supreme Court in the following cases:
(1) Ugbala v. Okorie (1975) 9 NSCC 429 at pp. 33-34.
(2) Arehia v. The State (1982) 4 SC 78 at 90.
(3) Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637 at 649.
It is further submitted that the respondent pleaded those facts in paragraphs 5, 6 and 7 of her amended statement of claim and deposed to those facts in paragraphs 5-9 at pages 338 and 343 of the record of appeal. That those facts were not denied, and are in law deemed admitted since the defendant neither filed a reply nor denied it in her amended statement of defence — Reliance is placed on the case of Egesimba v. Onuzuruike (2002) 15 NWLR (Pt. 791) 468 at 338. It is submitted that the situation in this case is distinguishable from the case of Abubakar v. Joseph (supra) in which the appellant made heavy weather. Further citing the case of Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 292 at 314, it was submitted that failure to comply with Section 232 of the Evidence Act without objection does not affect the use of the evidence so admitted for all legitimate purposes.
The Court is therefore urged to resolve this issue in favour of the respondent,
ISSUE TWO
Whether the learned trial Judge was right in law when he held that appellant’s witnesses have been discredited with their evidence in exhibits “B”, “E”, “E1”, “H”, “H1” and “H2”.
Quoting a portion of the judgment of the trial Court on page 444 of the record of appeal, it is submitted that there is evidence to support the finding of the lower Court that the evidence of appellant’s witnesses was manifestly discredited that it cannot support a claim for declaration of title. The Court’s attention is drawn to the record of appeal, the evidence of the witnesses in chief and cross-examination. Counsel then went on to submit that where a witness contradicts his previous statement in writing, the Court is bound to reject both statements. Cited in support of this submission is the case of Christopher Onubogu v. State (2004) 1 LC 735 at 747, and the case of Ayanwale & Ors. v. Atanda & Anor. (1988) All NLR 24 at 38. Counsel emphasized the sacrosanct nature of the preservation of the duty of evaluation of evidence, and the ascription of probative value to such evidence by the trial Judge, citing in support of his submission the case of Bakare v. State (1987) 3 SCNJ 1.
It is further submitted that the appellant did not furnish any legal bases for this Court to disturb the findings of the lower Court.
The Court is therefore urged to resolve this issue in favour of the respondent, and to ultimately dismiss the appeal.
In reply to the submission of appellant’s counsel, learned counsel for the respondent contended that it is not true that the evidence of CW4 that no part of the property was either sold by him or his brother to the respondent was challenged. It is submitted that the evidence was contradicted with his previous testimony in exhibits “E” and “E1” where he told the Court that his brother informed him of the sale to the respondent and he approved it before the subsequent sale to the appellant in 2005.
Also, he put to lie to the submission of appellant’s counsel that appellant’s counsel led evidence that he did not sign exhibit “G”. That against the backdrop of the witness’ denial that she did not testify in the Magistrates Court, she was contradicted with exhibit “B” where she admitted that she was a witness in exhibit “G” in which her husband transferred one-room apartment to the respondent in 1987.
Reply was also made to the submission of appellant’s counsel on the evidence of CW3 and CW4. The submission earlier made that the evidence of the appellant’s witnesses were manifestly and irredeemably discredited under cross-examination was reiterated.
It was further contended that the burden on a claimant for declaration of title is heavy in that he has to succeed on his own strength and not on the weakness of the defence, not even on admission or default of the adversary. Reliance is placed on the case of Haward Int. School Ltd v. Mina Project Ltd (2003) 39 WRN 5 at 72.
Also in regard to the submission of appellant’s counsel that CW4 and Uchenna Daphey are joint owners, it is submitted that the appellant admitted at page 34511 lines 8-9 that exhibit “D” does not show that Eze jointly owned the property with Uchenna.
It is therefore submitted that the admission of the appellant and the provision of S. 168(1) of the Evidence Act puts a seal to the argument of appellant that the property was jointly owned. That in any case, even if it is conceded that the property is jointly owned, it is only Eze Daphey, the joint owner that can institute an action to vindicate his right, not the appellant who came into the scene 18 years after the purported cause of action accrued to Eze Daphey.
Respondent’s counsel reiterates his submission that this appeal is frivolous and should be dismissed.
In the reply brief, appellant’s counsel submits that the position taken by respondent’s counsel in respect to Section 232 of the Evidence Act, 2011 does not reflect the true spirit of the law in the said section. He went on to elucidate in similar tone to his submission in the appellant’s brief relying on the case of Abubakar v. Joseph (supra).
Counsel proceeded to reply on the issue of amendment which features in the introductory aspect of the respondent’s brief of argument. The introductory aspect of a brief does not form a live issue for determination of an appeal. The Court will therefore not dissipate its energy on that aspect of the reply brief.
ISSUES FOR DETERMINATION
From the arguments canvassed by the parties on the respective issues submitted for determination, two broad issues clearly emerge upon which this appeal can be determined.
The issues in any view are:
1. Whether the learned trial Judge was not in error in admitting the testimonies of witnesses in a criminal proceeding for the purpose of cross-examination with a view of discrediting the witnesses on their previous testimonies.
2. Whether the learned trial Judge properly evaluated the evidence before him; and his finding that the appellant did not prove her claim of title is not perverse.
RESOLUTION OF THE ISSUES
ISSUE ONE
Whether the learned trial Judge was not in error in admitting the testimonies of witnesses in a criminal proceeding for the purpose of cross-examination with a view of discrediting the witnesses on their previous testimonies.
The sum of the submission of appellant’s counsel is that proceedings in a criminal case cannot be admitted and/or used to influence a civil case and as such record of proceedings in a criminal charge are inadmissible. He placed heavy weather on the case of Abubakar v. Joseph (2008) WRN 51 lines 15 and 25, also reported in (2008) LPELR-48 (SC),
The appellant’s argument is countered by the respondent who submitted that under Section 232 of the Evidence Act, 2011, the evidence of a witness given in a previous proceeding may be used in subsequent proceedings for the purpose of cross-examination with a view of discrediting the witness on his evidence given in the subsequent proceedings. Counsel placed reliance on the cases of Ugbala v. Okorie (1975) NSCC 29 at 33-34, Arehia v. The State (1982) 4 SC 78-90, Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637 at 649.
The appellant’s counsel also made the point that Section 232 of the Evidence Act, cannot be applied to discredit the witnesses because a vital precondition had not been fulfilled. That is, the subject matters are not related, even though the parties are similar (whatever that means). The case of Abubakar v. Joseph (2008) WRN 51, lines 15, 25 is also reported in (2008) LPELR—48 (SC). It was a claim of damages for negligence in an accident case. The learned trial Judge found in favour of the appellant not based on cogent evidence but because he was the first to report to the police, and so became the complainant, and yet no statement was obtained from him or any of the passengers PW2 said he saw and who from all indications were not injured in the respondent’s vehicle which was said to be speeding down a slope. The Court also found against the 1st respondent and in favour of the appellant because the 1st respondent was convicted in the Magistrates Court, while the 2nd appellant was discharged. So the proceedings in the Magistrates Court was tendered as exhibit “D” which in the holding of the apex Court influenced the learned trial Judge’s mind outrightly, to dismiss the counter-claim of the respondent — hence the holding of the apex Court that the record of proceedings in a criminal proceedings is not admissible in evidence in a civil proceeding. The apex Court went on to cite several other cases to buttress the principle. The apex cases included – Oyewole v. Kelani (1945) 12 WACA 327, Okunoren v. UAC Ltd. 20 NLR 25 at 27, Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) 435 at 44 (CA).
Clearly, exhibit “D” was tendered, admitted and used in proof of the appellant’s case simply because the 1st respondent was convicted in the Magistrates Court, which is clearly different from what transpired in the case in instant appeal.
The case of Ugbala v. Okorie (1975) 9 NSCC 29 at pp. 33-34 is also reported in (1975) LPELR — 3313 (SC). The learned trial Judge in that case noted as follows in his record of proceedings:
“Evidence of the witness before the Magistrate now sought to be tendered but only in regard to the points contradicting him now. No objection, tendered admitted and marked exhibit “D”
However, the evidence sought to be discredited was given before Magistrates Court “Biafra” which was not in existence. Therefore, impliedly, the statement recorded did not exist in law just as the proceedings. It was therefore held by the Supreme Court that S, 198 of the Evidence Act then (now Section 232 of the Evidence Act, 2011) did not apply because such a statement, the apex Court reasoned must be reduced into writing before a Tribunal or Court known to law. It is therefore quite explicit from this decision that the statement (exhibit “D”) would have been admissible but for the fact that the Magistrates Court was not one known to law.
In the case of Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 627 at 649, also reported in (1996) LPELR-1810 (SC), the apex Court held inter alia:
“A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that statement was made and is inconsistent with the witness’ testimony in the present proceedings is significant.”
Per Ogwuegbu, (JSC) P. 17 paras D-E.
What is crystal as clear from the cases cited above is that there is a gross misconception of the issue by counsel for the appellant when it is viewed from the record of appeal that what was tendered before the trial Court was not the record of the Magistrate’s Court to prove or disprove what was in contention between the appellant and the respondent but to show that in the evidence of those witnesses in the Magistrate’s Court, they gave evidence which is at variance with what they stated at the lower Court. Again, what was tendered was not the general effect of what was decided in that Court but the evidence of the witnesses in that Court as contained in their statements that were tendered and admitted in the lower Court. After all, the conviction of the appellant in the Magistrate’s Court was set aside by the High Court in its appellate jurisdiction.
This takes me to another issue raised by the appellant’s counsel which is that before Section 232 of the Evidence Act, 2011 can be called in aid, the issues must be the same. He then posited that the matters before the Magistrate’s Court and the lower Court are different. The record of appeal is before the Court and is comprehensive enough to speak to this issue. In the submission of counsel for the respondent, the issues before the Court revolve around the ownership of the one-room apartment subject matter of this appeal. For a better appreciation of the arguments in order to put same firmly to rest, I shall set out the provision of Section 232 of the Evidence Act, 2011. The said Section 232 of the Evidence Act, 2011 provides:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”
What the law requires is that the cross-examination should be relative to previous statements made by the witness in writing or reduced into writing and to matters in question in the suit. The matter at the trial Court was for trespass to this same property. The respondent was also tried for fraud in relation to her title document (Exhibit “G”)
In further satisfaction of the condition precedent for the application of Section 232 of the Evidence Act, 2011, the attention of witnesses, CW3 CW4 and the husband to the appellant who testified for the appellant was drawn to their previous testimonies before the statements containing the said testimonies were applied to be admitted in evidence to show that their evidence in the earlier proceedings is different from what they testified to in the proceedings at the lower Court.
Now, even in the absence of strict compliance with the provision of Section 232 of the Evidence Act, 2011, the proviso to the section, which is:
“Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial as it claims fit”,
entitles the Court to use such statements in order to do justice especially where the statement was admitted in evidence without objection. See the case of Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 292 at 314.
Issue One, I therefore hold is resolved in favour of the respondent.
ISSUE TWO
Whether the learned trial Judge properly evaluated the evidence before him; and his finding that the appellant did not prove her claim of title is not perverse.
The appellant is not happy with the trial Court’s role of evaluation and submits that if there had been proper evaluation of the evidence before the Court, it would have been found that she proved her case. She therefore invites this Court to undertake the evaluation of the evidence in order to arrive at what she would prefer to refer to as the proper finding.
On the other hand, is the contention of the respondent that the trial Court was right in its finding that the appellant did not prove her title to the property. She was very emphatic that there was proper evaluation of evidence and ascription of probative value to it by the trial Court, and as such the appellate Court should be loathe to interfere with the findings and conclusions reached.
The duty of an appellate Court when hearing an appeal was thus stated in the case of Ngwu & Ors v. Onuigbo & Ors (1999) LPELR — 1992 (SC):
“For as Karibi-Whyte, JSC cautioned in Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484 at page 492:- Ajadi v. Okenihun (1985) 1 NWLR (Pt 3) 484 at page 492:- “It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled.” The above appears to be an echo of the immortal words of Hurley C. J. sitting at the High Court of Northern Nigeria in the case of Igboke Oroke v. Chukwu Ede (1964) NNLR 118 at pages 119-120:- “It is the business of a trial Court to decide disputes by trying cases. It is not the business of an appeal Court to re-open disputes by trying cases again: an appeal Court’s duty is to see whether trial Courts have used correct procedure to arrive at the right decisions. An Appeal Court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial Court and not in the appeal Court, each party must make the whole of his case in the trial Court and call all his witnesses there, he should not be allowed to improve on his case in the Appeal Court.”
Per ONU, JSC(P. 12, paras. A-E).
See also Arisa v. The State (1988) LPELR-553 (SC) PP. 18-18, paras F-A, Atanda & Ors v. Ajani & Ors (1989) LPELR-589 (SC) P, 13 paras A-D.
It is therefore necessary to examine the judgment, particularly the findings of the trial Court in the light of the record of appeal inclusive the Exhibits tendered and admitted in the course of trial.
In the judgment, the learned trial Judge considered the evidence of the appellant and some of her witnesses, and concluded thus:
“From the above, it is clear that the claimant’s witnesses were manifestly discredited as to their claim that the defendant had only a leasehold and not an outright sale of the property in dispute which is the irregular one-room apartment. In fact, the defendant’s ownership of the said apartment was known to them even before they purchased the main building. That being so, they cannot even claim to be bonafide purchaser for value without knowledge of the defendant.
Having been so manifestly discredited, the evidence of the claimant and her witnesses do not deserve any credibility and it cannot support her claim to title. The Court is then left with the unchallenged and uncontradicted evidence of the defendant which to all intents and purposes shows that she is the owner and in possession of the property in dispute.
The claimant has therefore failed to prove that what was sold to her included the said irregular one room apartment,”
The complaint of the appellant is that the learned trial Judge was in error when he admitted the record of criminal proceeding in a civil case, and more so, used evidence in same to hold that her evidence and that of her witnesses was so discredited to prove her case. Her complaint extended to the fact that the Court ignored the documentary evidence adduced by her.
The appellant made heavy weather on the fact that Exhibit G the respondent’s title document was either a fraud or obtained by misrepresentation. That on her part she gave and called credible evidence that should have earned her the judgment.
In my consideration of Issue one, I resolved same in favour of the respondent by holding that the learned trial Judge did not err, but acted in tandem with the law when he admitted the aspects of Exhibit B in evidence for the purpose of cross-examination with a view of discrediting the witnesses in their evidence before him. I was exhaustive in my reasoning and conclusion and need not be labour it here. However, it suffices to state learned trial Judge was right when he took that aspect of the proceeding into consideration in his judgment. However, he owed it a duty to properly situate it against the appellant’s documentary evidence and to ascribe value to it.
There was also an aspect of the respondent’s case on which the appellant put great premium; that the learned trial Judge was completely silent on. The appellant complained that Exhibit “G”, the respondent’s title document was purportedly made in 1977 and signed by the respondent’s wife, Tina who at that time was a minor and who in her evidence denied signing same.
The need for these complaints to be considered in this Court cannot be overemphasized. That is the role of this Court where there is such a complaint.
The appellant’s claims borders on title to land. See claims 2 and 3 in the appellant’s 30 paragraphs amended statement of claim on pages 234 236 of the record of appeal.
It is settled law that in an action for declaration of title to land, the onus is on the plaintiff/claimant, to prove his title and he must rely on the strength of his case and not on the weakness of the defence — See the following cases, Pada v. Galadima & Anor (2017) LPELR-4276 (SC) P. 35 paras B-C, Akinola & Anor v. Oluwo & Ors (1962) LPELR-25101 (SC) P.3 paras B-C, Ugwu & Ors. v. Ogbuzuru & Ors (1974) LPELR-3328 (SC), P. 11 paras A-D, Onwubuariri & Ors. v. Igboasoyi & Ors. (2011) LPELR-754 (SC) P. 24 paras C -E, Edosa & Anor v. Ogiemwanre (2018) LPELR—46341 (SC), P.41 paras D-F.
On the evidence before the Court, can it be said that the appellant proved his claims based on the strength of his own case without picking holes in the respondent’s case?
An examination of the evidence called by the appellant should reveal the answer to this question. Let me start with the appellant’s vendor’s brother, by name Eze Daphey. His witness statement on oath is on pages 90—91 of the record of appeal. He adopted his witness statement on oath on 13/4/17 when he testified as CW4. In his said witness statement on oath he stated that his late elder brother Uchenna Daphey transferred their entire interest in the premises known as No. 168, 2nd East Circular Road Benin City to Miss Stella Agbonwanegbe; that is the appellant, and that there was no time his late brother made an outright sale of the structure in dispute to the defendant, that is, the respondent. However, in his earlier testimony in the Magistrates Court in a criminal case (Exh. “B”) in which the respondent was prosecuted for trespass and fraud in respect of the same property, he testified thus, inter alia:
“…It is not true that accused told us then that the beer parlour belong to her. I approved the agreement of transfer between PW 2 and accused when I learnt of it. I asked my brother to see the deed of transfer but my brother told me accused said her husband’s people seized her property including the documents. There was no dimension of land sold to accused person. It was building that was sold to her …” The accused referred to is the appellant.
Let’s now take a look at the evidence of the claimant/appellant who testified by adopting her witness statement on oath on 8/3/2018 (See pages 345T—345X of the record of appeal). Her witness statement on oath is on pages 287-289 of the record of appeal). In the said witness statement on oath, she averred that Uchenna Daphey and Eze Daphey are co-owners of the property. However, under cross-examination she told the Court that Exhibit “D” which shows the distribution of the properties of the deceased owner of the property in dispute does not show that Eze jointly owned the property in dispute with Uchenna. She also told the Court that her solicitor who happened to be her husband did not tell her Uchenna told him that he sold the property to the respondent. Let’s now see whether the claimant (appellant) and her husband, her solicitors are on the same page on this. The evidence of Hon. Chris Agbonwanegbe, husband of the appellant is as contained in his witness deposition on oath sworn to on 1/4/16 (pages 87—89 of the record of appeal). It was adopted as his oral evidence on 22/6/17. See pages 345O-345S of the record of appeal). He averred in his witness deposition that before the transfer of the premises/property his office was engaged to conduct a search, which they did and it was revealed that only one irregular apartment was encumbered because it was on leasehold. Under cross-examination, he testified that he could not remember testifying at the Magistrates Court that they discovered that the one-bedroom apartment was sold to the defendant (i.e. the respondent). This prompted his previous evidence at the Magistrates Court being tendered in evidence (that is, page 8, lines 20-26 of Exhibit “B”). In Exhibit “B”, the evidence of Chris Agbonwanegbe was admitted as Exhibit H1. He testified therein as PW 1. He testified inter alia:
“…The argument was her status whether she was on leasehold or if the little portion on the property was actually transferred to her. The co-owner is Eze-Dafe. The senior brother to whom he jointly owns the property is Uchenna Dafe. Uchenna told me that he transferred the one room shop to the accused”
(See page 8 of exhibit “B”). At page 9 of exhibit “B”, in his further evidence as PW 1 marked as exhibit NNH2″ Chris Agbonwanegbe told the Court:
“During interview with the police and the parties, the lawyers who did the agreement between accused person and Uchenna denied portions of the agreement and said the staircase is not included in the property transferred to accused person.
Uchenna said he transferred the property in 1989 and not in 1977 as her document showed. Mrs. Uchenna told police she had not married her husband as at 1977 so he could not have witnessed the agreement.
…Eze told me during searches that accused person was on leasehold on the property Eze did not know it was an actual transfer till Uchenna told him after the transfer. It is not true that the whole building was transferred to accused person. The building is an irregular one in that it is a room building that was transferred to accused person. Initially, I was told accused person was on lease but after the agreement, I made inquiry and found it was an actual transfer. I bought before I knew it was a transfer. I saw the transfer document of the accused person for the 1st tim at the police station…”
Now looking at the pleadings of the parties, particularly the appellant’s amended statement of claim, I consider the appellant, her vendor, Uchenna Daphey (now late) represented by his younger brother Eze Denhey and the appellant’s husband cum solicitor the most vital witnesses whose evidence can prove the appellant’s claim to title. Can it in all honesty be said that their evidence can be accorded the honour of credibility?
I have so far demonstrated clearly that the evidence of these witnesses given in the earlier proceedings profoundly conflicts with their evidence given in the instant proceedings as regards the ownership/transfer of the one-room apartment. Can a witness speak from the two sides of his mouth and expects that the said evidence can be accorded any probative value at all? I find the case of Christopher Onubogu v. The State (2004) 1 LC 735 at 747, cited by the respondent’s counsel apposite- The apex Court in that case held:
“In our view, where a witness, such as the complainant PW4 in the case in hand has made a statement before trial which is inconsistent with the evidence he gives in Court, the Court provided that no cogent reason are given for the inconsistency should regard his evidence as unreliable.”
The evidence of these witnesses has been so profoundly discredited that I cannot see myself relying on it to hold that the appellant has discharged the onerous burden placed on her to prove her title to this property on her own strength without placing any reliance on the holes she seems to pick in the respondent’s document of title (exhibit “G”).
In a claim of title to land, the burden can only shift to the defendant after the claimant on her own strength had with credible evidence proved her title. Here she has failed, and so no burden shifts to the defendant who has, moreover, not filed a counter claim.
The appellant has founded her claim on the fact that exhibit “G” was fraudulently procured. The first point I must make is that she ought to be concerned with proving her case, and not treading on a matter she was no privy to.
The appellant is not a party to exhibit “G”. Where does she stand to allege that it was forged? The proper person to complain is Uchenna Daphey whose name appears on it to have executed it with the respondent. Secondly, all the inconsistencies between the date the property was purchased by the respondent – (1987) and the date the document of title (exhibit “G”) was executed (1977) pointed out by the appellant can only be of moment if the respondent had filed a counter-claim, or where, the appellant was able to establish her claim to shift the burden to the respondent to rebut. In default of there being any counter-claim and the appellant having failed on the evidence to prove her claim, the Court is only limited to dealing with proof of appellant’s title and no more. Here, I must hastily fault the learned trial Judge when after holding that the evidence of the claimant and her witnesses have been so manifestly discredited and does not deserve any credibility and cannot support her claim, went further to hold that the unchallenged and uncontradicted evidence of the defendant shows that she is the owner and in possession of the property in dispute. She might be in possession, but having not filed a counter-claim on which evidence was considered by the lower Court, the Court had no business pronouncing her as the owner of the property.
The appellant also launched bitter complaint against non-evaluation of the documentary evidence adduced by her.
It is settled law that when documentary evidence supports oral evidence, oral evidence becomes more credible – See Eya & Ors v. Olapade & Anor. (2011) LPELR-1184 (SC), p. 17 paras D-E.
Where, as in this case, the oral evidence lacks probative value, it will amount to a sheer waste of precious time to consider the documentary evidence. Usually, the documentary evidence should and ought to serve as a hanger from which to assess the veracity of the oral testimony. This can also be so when the oral testimony itself has probative value, and not like in this case where the said oral testimony has been so discredited.
This brings me to the end on my treatise on issue two, which I must resolve in favour of the respondent.
The two issues having been resolved in favour of the respondent, this appeal is totally devoid of merit. It is hereby dismissed.
Costs is assessed at N2000,000.00 (two hundred thousand naira) in favour of the respondent.
UCHECHUKWU ONYEMENAM, J.C.A.: His lordship JAMES GAMBO ABUNDAGA, JCA obliged me with a draft copy of the judgment just delivered. l agree with his lordship that this appeal is totally devoid of merit and is hereby dismissed.
I also affirm the judgment of the High Court of Edo State delivered on 14th October, 2019 by D. U. Okungbowa, J. in Suit No. B/253/2008.
I abide by the order as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the judgment by my learned brother JAMES GAMBO ABUNDAGA, JCA. I am in agreement with his reasoning and conclusion. I have no reason to depart from them. I adopt them as mine.
By reason of the foregoing, I hold that the appeal lacks merit. The appeal is dismissed. The judgment of the lower Court in Suit No. B/253/2008 delivered by Hon. Justice D. U. Okungbowa is affirmed.
I abide by the cost awarded by my learned brother J. G. Abundaga, JCA.
Appearances:
C. E. Agbonwanegbe with him V. O. Gereba For Appellant(s)
C. Aghoja with him T. E. Ulinfoh, Awala J. and Erukpare U. For Respondent(s)