AKPAN v. UDOINWANG & ORS (2020)

AKPAN v. UDOINWANG & ORS

(2020)LCN/14094(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/365/2014

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

PASTOR FREEDOM AKPAN APPELANT(S)

And

1. ANIEFIOK USAH UDOINWANG 2. SOLOMON USAH UDOINWANG 3. AKPAN OKON UDOINWANG RESPONDENT(S)

RATIO

THE BURDEN OF PROOF OF CLAIMS FOR DECLARATORY RELIEFS

“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the Defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In order words, declarations of right sought by the Plaintiffs/Respondents in their first relief against the Defendant/Appellant in the present case cannot be made on admission or in default of pleading by the Defendant not to talk of pleading reliance on the evidence of the Defendant witnesses. See: WALLERSTEINER V. MOIR (1974) 3 ALL ER 217 AT 251, where Buckley, I. J. said it has been my experience, and I believe it to be a practice of long standing, that the Court does not make Declarations of right either on admission or in default of pleading … But only if the Court was satisfied in evidence”. See also: ABIDAKUN & ORS V. OYEBODE & ORS (2013) LPELR–20483 (CA); METZGER V. DEPARTMENT OF HEALTH AND SOCIAL SECURITY (1977) 3 ALL ER 444 AT 451; BELLO V. EWEKA(1981) 1 S.C. 101; MOTUNWASE V. SORUNGBE (1988) 12 S.C. (PT. 1) 130; (1985) 5 NWLR (PT.92) 102. PER ONYEMENAM, J.C.A.

ADMISSION OF FACTS AGAINST AN OPPOSITE PARTY

The law is trite that an admission in favour of an opposite party constitutes an admission against the interest of a party. See: ODUTOLA & ANOR V. PAPERSACK NIG.LTD. (2006) LPLER – 2259 (SC); IBRAHIM V. SHAGARI (1983) 2 SCN LR 176. ONOVO V. MBA (supra). To qualify as admission against the interest of a party, there must be a clear; unambiguous acceptance of the truth of a material fact in dispute which vindicates and reflects the legal position on the matter in controversy. See: ODUTOLA & ANOR V. PAPERSACK NIGERIA LTD (2006) 18 NWLR (PT 1012) 470. Also such admission must emanate from either the party in the suit or someone else having or claiming interest with such a party, with regard to the subject matter in controversy. The admission must be unambiguous and conclusive and where there is ambiguity or inconclusiveness, it would not be regarded as an admission against interest and a Court of law is entitled not to assign any probative value to it. PER ONYEMENAM, J.C.A.

THE NATURE OF A COUNTERCLAIM

On the counter claim, I shall briefly emphasize the nature of a counter claim. There is a rich case law on the meaning and purport of a counter-claim. See: EFFIOM V. IRONBAR (2000) 1 NWLR (PT. 678) 341 where it was held thus:
“A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs’ claim or arise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
See also: OKONKWO V. C. C. B. (2003) FWLR (PT.154) 457 AT 508, where the nature of a counter-claim was clearly spelt out as follows:
“Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs.”
Again, in HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT.308) 679 AT 690, it was held that: “The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.” See: OROJA & ORS V. ADENIYI & ORS (2017) LPELR – 41985 (SC). PER ONYEMENAM, J.C.A.

ADMISSIBILITY AND PROBATIVE VALUE OF A DOCUMENT

The Apex Court, Per Kekere – Ekun, JSC in ALBAN AJAEGBO V. THE STATE (2018) LPELR-44531 (SC) voiced thus:
“It must however be pointed out that there is a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to it will depend on the purpose for which it was tendered.”
See also: ISHOLA V. U.B.N LTD (2005) ALL FWLR (PT. 256) 1202 AT 1213 SC; OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964. PER ONYEMENAM, J.C.A.

ADMISSIBILITY OF DOCUMENTS

As I had earlier positioned, a Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose intended by the parties particularly the party that tendered it. Justice demands that where the Court intends to use a document tendered before it for a purpose outside that for which it was tendered and admitted, such Court must invite the parties to address it on the other use for which it tends to implore the document. In my view failure to adopt this procedure will amount to violation of a party’s right to fair hearing. The Apex Court, Per Kekere – Ekun, JSC in ALBAN AJAEGBO V. THE STATE (2018) LPELR-44531 (SC) voiced thus:
“It must however be pointed out that there is a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to it will depend on the purpose for which it was tendered.”
See also: ISHOLA V. U.B.N LTD (2005) ALL FWLR (PT. 256) 1202 AT 1213 SC; OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964.
Furthermore, let me add that for a Court to use a document for a purpose other than for the purpose for which it was intended by parties as pleaded, the Court’s attention must be drawn by any party who intends to use the document as otherwise pleaded. The Court in such circumstance shall invite all the parties before it to address it on the other intended purpose for which the document was not pleaded but sought to be used for, thereafter the Court can make its decision on the document. See: ISHOLA V. U.B.N LTD (supra); OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (supra). PER ONYEMENAM, J.C.A.

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Itu Judicial Division delivered by G. J. Abraham, J. on 25th July, 2013, dismissing the case of the Appellant. The judgment is contained at pages 184-190 of the records.

The Appellant, who was the 2nd Plaintiff at the trial Court, brought an action against the Respondents via a writ of summons, claiming from the Respondents jointly and severally as follows:
1. A declaration that the piece of land known as and called Isong Ikot Obio Enang lying and situate along New Park Road, Nung Ukot Itam, Itu Local Government Area, Akwa Ibom State, was until conveyed to the 2nd plaintiff, a personal property of the 1st plaintiff to the exclusion of the defendants.
2. A declaration that the 2nd plaintiff is entitled to right of occupancy of the parcel of land known as and called Ikot Obio Enang lying and situate along New Park Road, Nung Ukot Itam, Itu Local Government Area, Akwa Ibom State.
3. A perpetual injunction restraining the defendants, their agents, servants, heirs, successors in title

and assigns from further trespass into the said parcel of land.
4. The sum of N350,000.00 being special damages for the destruction of the beacon stones.
5. The sum of N10,000,000.00 being general damages for trespass into the said land and destruction of economic trees, crops and plants.

Briefly, the Appellant’s case is that he purchased a piece of land from the 1st plaintiff (now deceased) sometime in 2007 after confirming that the 1st plaintiff is the bonafide owner of the land. However, the Respondents invaded the said land while the Appellant was conducting survey of same and claimed that the land is a family land and there was no family approval for its sale. At the trial Court, the 1st Plaintiff (now deceased) contended that the land is his personal property which he inherited from his father after his father’s death. The 1st Plaintiff who has the same grandfather with the Respondents stated that when their grandfather died, the entire parcel of land belonging to their grandfather was shared among his 5 sons and the land now in dispute was his late father’s share as the 1st Son of their grandfather.

In their

defence, the Respondents contended that the land in dispute is a family land that it has been used by the entire family (Udoinwang family) as a burial ground since 1923. The Respondents also Counter-claimed.

The Appellants called three witnesses in support of their case and tendered five exhibits while the Respondents called three witnesses and tendered one exhibit. At the close of trial, the trial Court delivered its judgment dismissing the Appellant’s case. Dissatisfied with the judgment of the trial Court, the Appellant filed his Notice of Appeal and subsequently filed an Amended Notice of Appeal on 3rd March, 2015.

The appeal was heard on 29th January, 2020. The learned counsel for the Appellant adopted the Appellant’s brief filed on 4th March, 2015 along with his Reply brief filed on 30th November, 2016. He relied on the referred briefs in urging the Court to allow the appeal. On their own, the learned counsel for the Respondents adopted and relied on the Respondents’ brief filed on 11th November, 2016 in urging the Court to dismiss the appeal with cost.

In the Appellant’s brief of argument, Mr. Chinedu Iloawa of

counsel submitted two issues for determination, to wit:
1. Whether the judgment of the trial Court was perverse, thus occasioning a miscarriage of justice against the Appellant.
2. Whether the learned trial judge did not fail to properly evaluate the evidence before it.

U. B. Obaika of counsel raised a sole issue for determination in the Respondents’ brief, to wit:
“Whether the judgment of the trial Court was perverse in that the evidence before it was not properly evaluated and thereby occasioned a miscarriage of justice against the appellant?”

The issues distilled by both parties are the same, albeit couched differently. I shall adopt the sole issue raised by the Respondents, which in my view is best couched for the determination of this appeal.

SUBMISSIONS ON THE ISSUE
Mr. Iloawa submitted that the trial Court erroneously ignored facts and evidence before it in holding that the Plaintiffs failed to prove that the land in dispute had been partitioned. He referred to the evidence of the Appellant’s witnesses and Exhibits 2, 4 and 5 in arguing that the Appellant proved his case. That the Respondents

admitted to the case of the Appellant in their defence, particularly DW3’s evidence; that they also failed to prove their counter claim. He cited, inter alia,ANYANWU V. UZOWUAKA (2009) 7 SCNJ 29 AT 34 R. 10; AIGBOBAHI V. AIFUWA (2006) 2 SCNJ 61; GOWON V. IKE-OKONGWU (2003)1 SCNJ 453 AT 455 R. 4.

He argued that the Court imported facts which were not in evidence and also took irrelevant matters into consideration which substantially formed the basis of its decision. Also, that the Court failed to properly evaluate all the evidence before it before arriving at its decision, thereby occasioning a miscarriage of justice against the Appellant. He urged the Court to set aside the judgment of the trial Court for being perverse.

Reacting, Mr. Obaika counsel to the Respondents submitted that there was no admission by the Respondents that the land in dispute is not a family land, as claimed by the Appellant. That the pleadings of the parties in a suit must be read holistically so as to decipher the case of the parties. He stated that the evidence of PW3 settled the key issue on whether the subject matter is a family land and that the trial Court was right

to rely on the evidence of PW3 which was an admission against the interest of the Appellant and a proof of the Respondent’s case. He cited cases in that regard.

Regarding Exhibits 2, 4 and 5, the learned counsel for the Respondents contended that Exhibit 4 having not been tendered through its maker, it was a mere hearsay document. That Exhibit 2 was only tendered for the purpose of proving damages and not the key issue. He further urged the Court to discountenance the Appellant’s submissions that the Court below imported facts and took irrelevant matters into consideration, as being baseless.

The learned counsel for the Respondents finally submitted that the judgment of the trial Court was in no way perverse, he therefore urged the Court to answer the sole issue in the negative and to dismiss the appeal with costs.

In his reply brief, Mr. Iloawa of counsel submitted that the facts contained in paragraph 1 of the Respondent’s statement of defence amounts to an admission which renders the facts in issue established. He urged the Court to discountenance the submissions of the Respondents regarding the evidence of PW3 and the cases

cited in support. Regarding Exhibit 4, he contended that same is a certified public document admissible on its mere production and it is unnecessary to prove custody or to verify it. He cited cases in that regard.

Mr. Iloawa, learned counsel for the Appellant urged the Court to set aside the judgment of the trial Court and grant the reliefs sought by the Appellant in his statement of claim at page 36 of the records.

RESOLUTION OF ISSUE
By paragraph 29 of the statement of claim of the Appellant at page 36 of the record, it is without controversy that in the claim of the Appellant before the trial Court, the reliefs are declaratory in nature. The law is certain that in an action seeking declaratory reliefs, the Appellants are expected to establish their entitlement to the reliefs by placing before the Court cogent, credible, convincing and legally admissible evidence. The Appellants can only succeed on the strength of their case and never on the weakness of the Respondents’ case. See: AREWA TEXTILE V. FINETEX LTD. (2003) 7 NWLR (PT. 819) 332. IN DUMEZ NIGERIA LIMITED V. PETER NWAKHOBA & ORS. (2009) ALL FWLR (PT. 461) 842; the state of the law

was tersely laid down, per Mohammed, J.S.C.
“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the plaintiff in establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the Defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. In order words, declarations of right sought by the Plaintiffs/Respondents in their first relief against the Defendant/Appellant in the present case cannot be made on admission or in default of pleading by the Defendant not to talk of pleading reliance on the evidence of the Defendant witnesses. See: WALLERSTEINER V. MOIR (1974) 3 ALL ER 217 AT 251, where Buckley, I. J. said it has been my experience, and I believe it to be a practice of long standing, that the Court does not make Declarations of right either on admission or in default of pleading … But only if the Court was satisfied in evidence”.

See also: ABIDAKUN & ORS V. OYEBODE & ORS (2013) LPELR–20483 (CA); METZGER V. DEPARTMENT OF HEALTH AND SOCIAL SECURITY (1977) 3 ALL ER 444 AT 451; BELLO V. EWEKA(1981) 1 S.C. 101; MOTUNWASE V. SORUNGBE (1988) 12 S.C. (PT. 1) 130; (1985) 5 NWLR (PT.92) 102.
The reliefs sought by the Appellants at the trial Court being declaratory in nature, the learned trial Judge did not require the pleadings, evidence or the admission of the Respondents in their grant or refusal. What the learned trial Judge required in law was to be satisfied by the pleadings and evidence of the Appellants that they were entitled to the declaratory rights they sought.
This stems on the fact that a declaratory relief is a unilateral request to a Court to determine the legal status or ownership of a thing. Although the law requires that the other side be put on notice of the claim against him, the Claimant who seeks declaratory reliefs has the sole burden to prove to the satisfaction of the Court that he is entitled to the grant of the declaratory rights. He is not allowed in law to resort to or lean on any weakness, omission or default of the defendant. The

party who seeks a declaratory relief either succeeds or fails based on the evidence he has placed before the Court. What I am saying is that, since the reliefs sought by the Appellants are declaratory rights with ancillary claims; the evidence, lack of evidence or inadequate evidence of the Respondents has no role to play to goad the trial Court to grant or not to grant the declaratory reliefs.

With the above position of the law in mind I will consider the complaint of the Appellant that the decision of the trial Court was perverse in that the trial Court ignored facts and evidence before it, imported facts which are not in evidence and also took irrelevant matters into consideration which substantially formed the basis of its decision.

The basic contention of the Appellant is the holding of the learned trial Judge that the Plaintiffs failed to prove that the land in dispute has ceased to be family land and that the same had been partitioned. He relied heavily on the evidence of PW1 and PW2, paragraph 6 of the statement of claim, paragraph 6 of the statement of defence; and paragraph 1 of the DW1 and DW2 statements on oath respectively, Exhibits 2, 4

and 5; in support of his case. The PW1 (1st Plaintiff) evidence showing that the land in dispute was partitioned is at pages 49 – 51 and 167 – 169 of the records. The learned counsel for the Appellant invited the Court to PW1’s evidence under Cross-examination at page 168 of the said records wherein the witness testified as follows:
“I was present when the property was shared. My father and mother were present. The property was shared to my father and not me”. ”… the land I sold was the portion shared to my father. It was not family land”.

The Appellant could only succeed at the trial Court if he established that the land in dispute was a family land which had been partitioned and the portion in contention was actually given to his late father who was one of the sons of Udoinwang. At paragraph 6 of the Statement of Claim, the Plaintiffs averred as follows:
“6. After the death of Udoinwang, the entire parcels of land belonging to Udoinwang was partitioned among his 5 sons, Otu Udoinwang, Usah Udoinwang, Okon Odoinwang, Etim Udoinwang and George Udoinwang”.

The above fact is not in dispute as the

same was clearly and unambiguously admitted by the Defendants in paragraph 1 of their Statement of Defence as well as by DW1 and DW3 in paragraph 1 of their respective Statements on Oath. See pages 38, 67 and 74 of the records. The question is whether as argued by the learned counsel for the Appellant the referred admission amounted to admission against interest.

there is ambiguity or inconclusiveness, it would not be regarded as an admission against interest and a Court of law is entitled not to assign any probative value to it.
In the instant case, the material fact in issue is whether, the disputed land was the portion of land allotted to the Appellant’s father when the land of Udoinwang was partitioned amongst his five sons and not whether the entire land of Udoinwang was partitioned. By paragraph 1 of the Respondents’ Statement of Defence as well as DW1 and DW3 in paragraph 1 of their respective Statements on Oath, the Respondents herein merely admitted the fact that the entire land of Udoinwang was partitioned and shared amongst his five sons. This admission does not amount to acceptance of the truth of a material fact in dispute which vindicates and reflects the legal position on the matter in controversy. I therefore hold that paragraph 1 of the Respondents’ Statement of Defence as well as DW1 and DW3 in paragraph 1 of their respective Statements on Oath do not qualify as admission against interest for the obvious reason that the pleadings and evidence of the Respondents referred to above

do not amount to admission of the truth of the material fact in dispute which in this case means the admission of the fact that the land in dispute being part of Udoinwang land was family land allotted to the 1st Plaintiff’s father upon partition of the entire land.

On the evidence of DW3 on his previous sale of land and his family headship, I have considered the arguments thereon and I hold that the evidence can at most amount to the weakness of the Respondents’ case which in law cannot be leaned on by the Appellant in establishing his case since his claim is declaratory in nature. See: ABIDAKUN & ORS V. OYEBODE & ORS (2013) LPELR –20483 (CA); METZGER V. DEPARTMENT OF HEALTH AND SOCIAL SECURITY (1977) 3 ALL ER 444 AT 451; BELLO V. EWEKA(1981) 1 S.C. 101; MOTUNWASE V. SORUNGBE (1988) 12 S.C. (PT. 1) 130; (1985) 5 NWLR (PT.92) 102 AREWA TEXTILE V. FINETEX LTD. (2003) 7 NWLR (Pt. 819) 332. IN DUMEZ NIGERIA LIMITED V. PETER NWAKHOBA & ORS. (2009) ALL FWLR (PT. 461) 842.

At page 4 paragraph 3.16, the Appellant’s counsel contended that Exhibit 5 which the trial Court ignored goes to support the fact that Udoinwang family

has no burial ground. Exhibit “5” is a document made in pursuance of settlement in Suit No. HIT/8/2007. That document did not describe the land in issue in Suit No. HIT/8/2007 as family burial ground as alleged by the Defendants/Respondents herein, instead it described it as land belonging to the 3rd Defendant/Respondent.

The Appellant’s counsel contention herein is, since the said Exhibit was made and signed by the 3rd Defendant (DW3) and his Lawyer in 2009, 2 years after the filing of the Statement of Claim in the Suit now on appeal, it goes to prove that Udoinwang family does not have any family burial ground. Otherwise the land in Exhibit “5” would have been described as family burial ground. The learned counsel for the Appellant contended that failure of the trial Court to evaluate Exhibit 5 was detrimental to the Appellant’s case. From the records in Suit No. HIT/8/2007, the 3rd Respondent sold the land then in question to PW3 in his personal capacity. The Udoinwang family contested the sale on the ground that the portion of land the 3rd Respondent sold to the PW3 remained family land used for family burials. It was for

that reason that the transaction failed and the 3rd Respondent had to refund the purchase sum to PW3. Having been on the wrong part in presuming that the land was his, he could not have referred to the land as family land in his personal transaction. In any event, Exhibit 5 stated clearly that the refund was because PW3 was no longer interested in the transaction. The PW3 gave reason why he was no longer interested in his evidence on oath and which was that he got to know that the land was family land of the Udoinwang family. Failure of Exhibit 5 therefore to describe the land in question as family land was not helpful to the Appellant’s case neither was the fact that the trial Court ignored the exhibit detrimental to the case of the Appellant.

The Appellant also in an attempt to establish that the land in dispute was partitioned and allotted to his late father, tendered Exhibit 2 as against the Defendants’ allegation that the land had been a family burial ground right from 1923. Exhibit 2 is a photograph of the land in question which the Appellant contended shows that there is nothing whatsoever to prove that the land in issue is a family

land used as burial ground since 1923 or at all. See page 59 of the Record of Proceedings. The learned counsel for the Appellant argued that the Respondents did not challenge or contradict Exhibit “2” in anyway whatsoever and in law, Respondents are deemed to have accepted that Exhibit as true and as such the duty of the Court to act on it and not to ignore it as it did. He cited: AIGBOBAHI V. AIFUWA (2006)2 SCNJ 61.

Exhibit 2 was pleaded in paragraph 27 of the Statement of Claim as follows:
“The Plaintiffs state that some time in 2009, the Defendants again trespassed into the said land, the subject of this suit and maliciously destroyed crops, plants and economic trees belonging to the 2nd Plaintiff. The 2 Plaintiff took photographs of the said crops, plants and economic trees destroyed and shall rely on the said photograph including the negative copy during the trial.”

It is apparent from the above pleading that Exhibit 2 was pleaded and tendered to show the alleged economic crops and trees belonging to the 2nd Plaintiff and destroyed by the Defendants. It was not pleaded to show that the land is not a family burial

ground. The principle of law is that Exhibit 2 cannot be used for any other purpose than that pleaded. In other words, it is only for the purpose for which it was tendered that the Court can ascribe it probative value. See:OMEGA BANK NIG PLC V O. B. C. LTD. (2005) VOL. 123 LRCN 34; ……

In effect Exhibit 2 cannot be used to prove that the disputed land was not a family burial ground more so where the Respondents at paragraph 3 of their statement of claim, paragraphs 3 of the 1st and 3rd Respondents’ statement on oath respectively; listed the names of family members buried on the land including the 1st Plaintiff’s parents which the Appellant did not deny. The trial Court though should have evaluated the said Exhibit 2, but the fact that he ignored it was not detrimental to the case of the Appellant neither did it occasion a miscarriage of justice.

Exhibit 4 is the Survey Plan in Suit No. HIT/8/2007. This was simply tendered in Court by PW3 who was not the maker of the document (The Surveyor), accordingly though it was rightly admitted in evidence because it was pleaded and relevant, but to the extent that it was not tendered by

the maker and the maker not made available for cross examination, Exhibit 4 for all intents and purposes in law remained hearsay evidence without probative value and which the trial Court rightly ignored. See: SECTION 83 (1) OF THE EVIDENCE ACT 2011; OMEGA BANK NIG PLC V O. B. C. LTD (2005) VOL. 123 LRCN 34. Let me also add that the submissions of the Appellant at page 6 paragraphs 4.05-4.07 of the Appellant’s Brief was not part of the evidence given at the lower Court. At best, the learned counsel for the Appellant’s submission at Paragraph 4.06 of the Appellant’s brief amounted to counsel giving evidence via a brief. The law is that a Brief is not the place to give evidence; it is supposed to be brief and contain submissions tied to the evidence contained in the Records of Appeal. See:OBASUYI & ANOR V. BUSINESS VENTURES LTD (2000) 5 NWLR (PT. 668) AT 690. I therefore hold that the learned trial Judge was not in error in ignoring Exhibit 4 which is a documentary hearsay. Finally is the evidence of PW3 as it relates to the land in dispute and Exhibit 5.

On the PW3’s evidence, the Appellant contended that the trial Court

imported facts not in evidence into its judgment making particular reference to the evidence of the PW3 as regards the disputed land in Suit No. HIT/8/2007 and the land in dispute in the present appeal. He referred to the following holdings of the Court:
“In the course of evidence, the Plaintiff called one Umo Udoma Isong who testified as PW3. His evidence is that sometimes ago, the 4th Defendant sold the land in dispute to him and members of Udoinwang family protested the sale on the ground that the land is a family land. When PW3 testified, he said he was surprised that the land that was said to be family land when it was sold to him could be sold by the 1st Plaintiff to the 2nd Plaintiff.”

The learned counsel invited the Court to pages 100,101 and 174 – 175 of the records.

PW3’s Statement on Oath is contained at page 100 of the Records. He averred in paragraph one of the record as follows:
1. The land which the said Emmanuel Okon Udoinwang sold to me which is the subject matter of Suit No. HIT/8/2007 is different from the land in dispute in this case. Certified True Copy of the plan which I and the 4th defendant

in this case attached to our amended statement of defence in Suit No. HIT/8/2007 is pleaded by the plaintiffs. Emmanuel Okon Udoinwang, the 1st defendant in Suit No. HIT/8/2007 is the same person as Akpan Okon Udoinwang, the 3rd defendant in this suit.

During his cross examination contained at page 174 of the record, PW3 stated at lines 6-10 thus:
“The land in dispute in this case relates to the 1st case in HIT/8/2007 which I was the 2nd defendant. The 3rd defendant, Akpan Okon Udoinwang was the 1st defendant in Suit No. HIT/8/2007.In Suit No. HIT/8/2007, Udoinwang family sued me and said I could not buy the land.”

During his re-examination contained at pages 174-175 of the record, the same PW3 further stated thus:
“When I said that the land in dispute has something to do with the land involved in Suit No. HIT/8/2007, I wish to say that in the course of Suit No. HIT/8/2007, the then Plaintiff said that the land that was sold to me by Emmanuel Okon Udoinwang was a family land which was delineated as a cemetery for the burying of the deceased family members and that Emmanuel Okon Udoinwang ought not to have sold the land. I

am surprised that the same land is sold out to the present Plaintiff.”

I have reproduced the holdings of the trial Court complained of by the learned counsel for the Appellant and the evidence of the PW3 in chief, under cross examination and re examination; all to show that whereas the trial Court paraphrased the testimony of the PW3, it did not import any facts not given in evidence by PW3 into his judgment. Rather the evidence of PW3 under re examination that he was duly informed that the land sold to him was the Respondents family land delineated as family cemetery for the burial of deceased family members, and that he was indeed shocked that the same land was again sold to the Appellant make it crystal clear that the contract of sale of the land the subject of this appeal earlier sold to him failed because it was family land. Thus, this piece of evidence of the PW3 was evidence against the interest of the Appellant. Let me briefly reiterate that when the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of that evidence to strengthen his case, if it is consistent

with, and collaborates his case, as in this case. See:CHIEF FALADE ONISAODU & ANOR V. CHIEF ASUNMO ELEWUJI & ANOR (2006) SC 223/2000; N.B.N LTD V. T.A.S.A LTD (1996) 8 NWLR (PT. 468) P. 511; OJIEGBE & ORS. V. KWARANYIA & ORS. (1962) ALL NLR 605; (1962) 2 SCNLR 358. The evidence of PW3 herein being evidence of a witness against the Plaintiffs who had called him was certainly admissible against the Plaintiffs and carried much weight. See: ADUSEI V. ADEBAYO (2012) 3 NWLR (PT. 1288) 534 AT 553 S.C.; JERIC NIG. LTD. V. U.B.N. LTD (2000) 12 SCNJ 184 AT 203; M.C.C. LTD V. AZUBUIKE (1990)5 SCNJ 75. I therefore hold that the trial Court was right when it relied on this crucial piece of evidence by PW3 against the interest of the Appellant and in favour of the Respondents in dismissing the case of the Appellant. See:MILFORD EDOSOMWAN V KENNETH OGBEYFUN (1996) 36 LRCN 432.

and it needs not relate to or be in anyway connected with the plaintiffs’ claim or arise out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action.”
See also: OKONKWO V. C. C. B. (2003) FWLR (PT.154) 457 AT 508, where the nature of a counter-claim was clearly spelt out as follows:
“Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs.”
Again, in HASSAN V. REGD. TRUSTEES BAPTIST CONVENTION (1993) 7 NWLR (PT.308) 679 AT

690, it was held that:
“The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff’s claim. If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
See: OROJA & ORS V. ADENIYI & ORS (2017) LPELR – 41985 (SC).

The germane fact pleaded by the Counter Claimants who are the Respondents herein is that the land in dispute remained Udoinwang family land as the same was left as family burial ground after the entire Udoinwang family land was partitioned. The Respondents went ahead to name the Udoinwang family members that were buried on the said land which averment was not countered by the Appellant who rather relied on Exhibit 2 in prove that the land in dispute was not a family burial ground as alleged by the Respondents. Although I had considered Exhibit 2 earlier in this judgment, I shall further emphasize that;

Exhibit 2 tendered by PW2 is a printed photograph. A careful examination of the pleading in paragraph 27 of the Statement of Claim on Exhibit 2 makes it clear that Exhibit 2 was pleaded and tendered to show the

alleged economic crops and trees belonging to the Appellant allegedly destroyed by the Respondents. As I had earlier positioned, a Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose intended by the parties particularly the party that tendered it. Justice demands that where the Court intends to use a document tendered before it for a purpose outside that for which it was tendered and admitted, such Court must invite the parties to address it on the other use for which it tends to implore the document. In my view failure to adopt this procedure will amount to violation of a party’s right to fair hearing. The Apex Court, Per Kekere – Ekun, JSC in ALBAN AJAEGBO V. THE STATE (2018) LPELR-44531 (SC) voiced thus:
“It must however be pointed out that there is a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to it will depend on the purpose for which it was tendered.”
See also: ISHOLA V. U.B.N LTD (2005) ALL FWLR (PT.

256) 1202 AT 1213 SC; OMEGA BANK (NIG.) PLC. V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964.
Furthermore, let me add that for a Court to use a document for a purpose other than for the purpose for which it was intended by parties as pleaded, the Court’s attention must be drawn by any party who intends to use the document as otherwise pleaded. The Court in such circumstance shall invite all the parties before it to address it on the other intended purpose for which the document was not pleaded but sought to be used for, thereafter the Court can make its decision on the document. See: ISHOLA V. U.B.N LTD (supra); OMEGA BANK (NIG.) PLC. V. O.B.C. LTD. (supra).
In the instant appeal therefore since Exhibit 2 was not pleaded to show that the land is not a family burial ground but that the crops and economic trees of the Appellant were destroyed; the Appellant who sought to use Exhibit 2 for the purpose other than that it was pleaded, ought to have drawn the attention of the trial Court to that fact, and the Court on its own invite them to address it on the issue before making a decision. The learned counsel for the Appellant herein did not draw the

attention of the trial Court on the otherwise purpose the Appellant intended to use Exhibit 2, and the parties did not address the trial Court on Exhibit 2 as proof that the land in dispute was not a family burial ground, the Appellant’s counsel could not spring that surprise on the Respondents in his final address. The Court was therefore right in not placing probative value on Exhibit 2 as a proof that the land in dispute was not a family burial ground but restricted the value it accorded it to the purpose for which it was pleaded. In all I hold that Exhibit 2 could not help the case of the Appellant as it could not be used for any other purpose than that it was pleaded without following the laid down procedure in law and as such the learned trial Judge did not err in not considering Exhibit 2 as a proof of the fact that the land in dispute was not a family burial ground.

The Respondents at paragraph 3 of their statement of defence pleaded the family members who had been buried on the land in dispute since 1923 and the last burial on the land in 2008. The Appellant did not file a reply to the defence to counter the averment on the family

members’ burials on the land in dispute and coupled with the admission against interest by PW3, I hold that on the balance of probability the case of the Respondent that the land in dispute was reserved as family burial ground was more credible. The trial Court was therefore right when it held that the Respondents had proved their counter claim.

I accordingly resolve the issue in favour of the Respondents. Appeal therefore fails as the same is lacking in merits. I affirm the decision of the High Court of Akwa Ibom State in Suit No. HU/430/07 delivered on 25th July, 2013.

I make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have carefully gone through the draft of the judgment by my noble Lord U. ONYEMENAM JCA.

My noble Lord has painstakingly dealt with the sole issue adopted in this appeal.

I also agree with the conclusion that the appeal lacks merit. I abide with the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother UCHECHUKWU ONYEMENAM JCA.

I also abide by the trial Orders of Court made in the lead judgment particularly dismissing the appeal.

Appeal is dismissed.

Appearances:

CHINEDU ILOAWA

For Appellant(s)

ERNEST USAH holding the brief of U. B. OBAIKA For Respondent(s)