BALANKO & ORS v. BALANKO (2021)

BALANKO & ORS v. BALANKO

(2021)LCN/15037(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, February 08, 2021

CA/YL/61/18

RATIO

NATURE OF THE ONUS OF PROOF IN CIVIL CASES

The onus of proof is not static in civil cases but, shifts between the adverse parties from one side to the other as the case may be. It was the duty of the Appellants to dislodge what the Appellant asserted and proved that she is the only surviving child of her deceased father. See, UNION BANK VS. RAVIH ABDUL & CO. LTD (2018) LPELR – 46333 (SC) PP. 35 – 37, PARAS. B – C, OSAWARU VS. EZEIRUKA (1978) LPELR – 2791 (SC) PP. 13 – 14, PARAS. E – B and ORJI VS. DORJI TEXTILE MILLS (NIG) LTD (2009) (supra) at PAGE 47, PARAS. C – E. PER CHIDI NWAOMA UWA, J.C.A

POSITION OF THE LAW WHERE A WITNESS HAS GIVEN MATERIALLY INCONSISTENT EVIDENCE ON OATH

It is settled law that a witness who has given materially inconsistent evidence on oath ought not to be believed, such evidence ought not to be relied upon by the Court. Such a witness is not only unreliable but, not a truthful witness. There is no reason why such evidence should be believed and acted upon. A party is not allowed to present to the Court inconsistent evidence contrary to his pleadings and or assertions. See, AJIIDE VS. KELANI (1985) 3 NWLR (PT. 12) 248 at P. 269, EZEMBA VS. IBENEME (2004) 14 NWLR (PT. 798) 623 and OGUNDE VS. ABDULSALAM (2017) LPELR – 41875 (CA). PER CHIDI NWAOMA UWA, J.C.A

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

JEDIEL BALANKO 2. NAPTHALI EZEKIEL 3. ISTIFANUS SETH BALANKO 4. DICKSON ISTIFANUS BALANKO 5. LAWRENCE ISTIFANUS BALANKO APPELANT(S)

And

PEACE ISTIFANUS BALANKO RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Taraba State (hereafter referred to as the lower Court) delivered by Nuhu S. Adi, J. on 10th October, 2017 wherein all the reliefs sought by the Respondent as plaintiff were granted. The Appellants as Respondents were aggrieved by the said decision thus this appeal.

The background facts are that the Respondent and her late brother whose name was struck out on his demise took out a writ of summons against the 1st Appellant, with the leave of Court the 2nd – 5th appellants were later joined as Defendants. At the lower Court, the Respondent sought the following reliefs:
1. “An Order declaring the defendant’s act of evicting the plaintiffs and their mother from living house situates (sic) at Magami Quarters Alkali Pate Road, as unlawful, illegal and a clear violation of their rights to acquire and own immovable property as guaranteed under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999, (as Amended).
2. An Order declaring the act of taking compulsory possession of the moveable and

immovable properties of the plaintiffs by defendant as wrongful and as a trespass.
3. An Order compelling the defendant to surrender to the plaintiffs all their moveable and immoveable properties in his possession.
4. An Order of perpetual injunction restraining the defendant by himself, his privies/representative or whosoever and/or encroaching, doing anything prejudicial to the rights, interests and ownership of the plaintiffs’ moveable properties.
5. N500,000.00 as general damages.
6. Cost of litigation N300,000.00 only.”

At the trial, the Respondent called two witnesses and tendered several Exhibits while the Appellants called four witnesses and also tendered several Exhibits.

The following three issues were formulated for the determination of the appeal thus:
“WHETHER a Court is duty bound to make pronouncement on all issues raised before it. Distilled from ground four of the amended Notice of Appeal.
ISSUE NO. 2
WHETHER the learned trial Court judge was right when he placed reliance on “Exhibit 2”, a void document, which has no maker to arrive at the conclusion that the

respondent had proved her case and was the only heir to the deceased Istifanus Ayuba Banlanko.
Distilled from grounds from ground (sic) three of the amended Notice of appeal.
ISSUE NO. 3
WHETHER having failed to evaluate the evidence of DW1, DW2 and DW4 and to have ascribed probative value to same, has made the judgment of the lower Court perverse.” Distilled from grounds from ground (sic) one and two of the amended Notice of appeal.

The Respondent on her part distilled the following two issues for the determination of the appeal thus:
“(i) Whether the trial Court was not right in deciding this case based on the two issues settled and agreed upon by both parties at the pre-hearing session. (Distilled from Ground 4 of Amended Notice of Appeal).
(ii) Whether the Respondent as the plaintiff had proved her case before the trial Court” (Distilled from Grounds 1, 2 and 3 of the Amended Notice of Appeal).

When the appeal came up for hearing on 10th November, 2020, the learned counsel to the appellants I.C. Osuji Esq. who settled the appellants’ brief of argument and had been appearing for the

appellants was not in Court and there was no letter to excuse his absence from Court, therefore the Appellants’ brief of argument filed on 14/10/19 deemed properly filed and served on 15/10/19 was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. As argued in the Appellants’ brief of argument, under issue one, it was submitted that the trial Court failed to pronounce on all the four (4) issues submitted by the Appellants’ counsel. It was submitted that the trial Court failed to abide by the rules of the trial Court, particularly Order 31 Rules 4 (h) and 6 concerning the 3rd, 4th and 5th Appellants who had been joined as co-defendants by order of Court and were also claiming to be legitimate heirs of the deceased Istifanus Ayuba Balanko. It was submitted that it was the duty of the trial judge to make specific findings on the issues placed before the Court and pronounce on each issue. See, OJIKUTU VS. OJIKUTU (1971) LPELR – 2375 (SC), 7UP BOTTLING CO. LTD & ORS VS. ABIOLA & SONS BOTTLING CO. LTD. (2001) LPELR (SC), OKONJI VS. NJOKANMA (1999) 14 NWLR (PT. 638) 250 AT 270 E – F AND

GARBA VS. MOHAMMED & ORS (2016) LPELR – 4061 (SC). It was submitted that failure to pronounce on all the issues would lead to a miscarriage of justice. It was submitted that the appellants had submitted two (2) issues for the determination of the case in his address at the trial Court whereas the trial Court held that the Appellants submitted four (4) issues and hence discountenanced same as being irrelevant. See page 411, lines 11 to 17 and pages 459 – 460, lines 2 to 6 of the printed records of appeal.

The appellants’ issue two (2) faulted the trial Court’s reliance on Exhibit 2 which the Appellants made out is a void document which the trial Court ought not to have relied upon in arriving at its decision. It was argued that the Respondent proved her case and the only heir to her father, the deceased Istifanus Ayuba Balanko. While defining the word ‘document’ reference was made to the case of ODUAH VS. FRN (2012) 11 NWLR P. 76 (CA). It was argued that Exhibit 2, the programme of events for the funeral service of Mr. Istifanus Ayuba Balanko ought not to have been admitted in evidence by the trial Court. It was submitted that

the name of the maker was not on the said Exhibit. See, OMEGA BANK (NIG) PLC VS. O.B.T. LTD (2005) 8 NWLR (PT. 928) 547 AT 587 PARAS. C – D. It was argued that an unsigned document has no efficacy in law and where wrongly admitted no probative value should be attached to it, further, that a document with no signature is void, worthless and cannot be relied upon, the word ‘signature’ was defined while reliance was placed on the case of SUN PUBLISHING LTD VS. LEADERS & CO. LTD (2016) 7 NWLR (PT. 510) P. 1. It was submitted that the trial Court which held that the Respondent was the only child of the late Istifanus Ayuba Balanko also, erroneously held that the DW2 and the family of the deceased prepared Exhibit 2, page 372, lines 6 and 7 of the printed records of Appeal. It was argued that the DW2 was not shown Exhibit 2 to authenticate same at the trial before the trial Court placed reliance on his assertion that the Respondent proved that she was the only heir to the estate of her deceased father Istifanus Ayuba Balanko, page 461, lines 20 – 24 of the printed records of appeal. Also, that the trial Court was wrong to have held that

the DW4 was unable to explain the absence of his name in Exhibit 2, page 462 at lines 22 – 28 of the printed records. We were urged to hold that Exhibit 2 is a void document.

On the third issue, it was submitted that the trial Court failed to evaluate the evidence of the DW1, DW2 and DW4. Further, that in evaluating evidence, there must be an indication on record as to how the Court arrived at its conclusion preferring one piece of evidence to the other. See, AREGBESOLA VS. OLAGUNSOYE (2011) 9 NWLR (PT. 1253) 458. It was argued that the trial Court ought to have given reasons why it preferred the evidence of the PW2 to that of the DW2 the younger brother to the deceased to the effect that the 3rd, 4th and 5th appellants were his late brother’s children. See, EUGENE IFEOMA VS. THE STATE (1990) 6 NWLR (PT. 155) AT P. 194, MOGAJI VS. ODOFIN (1978) 4 SC 91 AT 93 – 96, OLUSANYA VS. OSINLEYE (2013) LPELR – 20641 (SC). It was submitted that the DW1 in his Statement on Oath at page 330 of the printed records of appeal was emphatic that the 3rd, 4th and 5th Appellants were the legitimate sons of the deceased. The evidence of the DW1 as to

the paternity of the 3rd, 4th and 5th appellants was argued not to have been shaken under cross examination and ought to have been believed. It was submitted that the 3rd, 4th and 5th Appellants lived with the deceased and that this fact was not challenged under cross examination, reference was made to the testimony of the 5th Appellant who testified as the DW4, pages 351 – 352, 395 – 396 of the printed records of appeal.

It was argued that the trial Court admitted in evidence the First School Leaving Certificate and the Certificate of Indegeneship of the DW4 as Exhibits 4 and 5 respectively, with the name Lawrence Istifanus Balanko, page 398, lines 29 to 32 of the printed records of appeal and at page 402, that the DW4 lived with the deceased in the same house and that he was acknowledged in the deceased’s lifetime. On evaluation of evidence, reliance was placed on ADELEKE VS. IYANDA (2001) 13 NWLR (PT. 729) 1, Section 29(2) (b) of the Evidence Act, 2011 to the effect that the trial Court ought to look at the totality of the evidence before it before arriving at its decision. It was made out that the trial Court failed to evaluate the

evidence of the DW1, DW2 and DW4 as well as Exhibits 4 and 5, on failure to evaluate evidence of the witnesses’ reliance was placed onAGBI VS. OGBEH (2006) 11 NWLR (PT. 990) 65, EZEKWESILI & ORS VS. AGBAPUONWA & ORS (2003) LPELR – 1204 (SC) AND NIGER CONSTRUCTION LTD VS. OKUGBENI (1987) 4 NWLR (PT. 67) 89. It was argued that failure to evaluate the evidence of the 5th Respondent and Exhibits 4 and 5 is fatal to the case of the Respondent. See, ABUBAKAR VS. CHUKS (2007) LPELR – 52 (SC), TEGWONOR VS. STATE (2007) LPELR – 4674 (CA) and MADAKI VS. KANA & ANOR (2015) LPELR – 40477 (CA). It was concluded that the failure to evaluate the evidence before the Court led to a perverse decision by the trial Court.

In response, the learned counsel to the Respondent, Chief L.D. Nzadon Esq. adopted and relied on his brief of argument filed on 26/11/19 but deemed properly filed and served on 9/9/2020 as his argument in this appeal in urging us to dismiss the appeal and affirm the decision of the trial Court. In arguing his first issue, it was submitted that the law is that where parties have settled and agreed on the issues for

determination at the pre-hearing session, both parties as well as the Court are bound by those issues. See, DURU VS. DURU (2016) LPELR – 40444 (CA), PG 29 – 31, PARAS. F – A. It was submitted that the parties at the pre-hearing session agreed on two (2) issues for determination while the Appellants’ counsel who was their counsel at the trial Court in his final written address submitted four (4) issues for determination which were different from the issues settled by the parties at the pre-hearing session, pages 437 – 438 of the records. It was argued that the trial Court made a pronouncement concerning the 3rd, 4th and 5th Appellants who claimed to be legitimate children of the Respondent’s late father at pages 461 – 462, lines 25 – 15 of the records. It was concluded on this issue that the trial Court was right to have discountenanced all the issues formulated by the Appellants and rightly proceeded to determine the case based on the issues settled by the parties at the pre-hearing session.

On his second issue, it was submitted that by virtue of Section 137 of the Evidence Act, 2011, the burden of proof

is on the person who alleges that certain facts exist to prove the existence of that fact. The burden was on the Respondent who was the plaintiff at the trial Court to prove that she was the sole surviving child of her late father who died in August, 2012, which the Respondent proved by convincing and credible evidence that she was the sole heir to her late father and entitled to the inheritance of whatever he had. It was submitted that the Respondent’s mother (PW1) testified with the Respondent (PW2) and tendered Exhibit 2 to the effect that the Respondent was the only surviving child of the lawful marriage between the PW1 and the Respondent’s deceased father as provided by Section 165 of the Evidence Act, 2011, pages 368 – 377 of the records.

It was submitted that the 1st Appellant admitted that he prepared Exhibit 2, the funeral programme/event that stated that the Respondent and her late brother were the only surviving children of the deceased Istifanus Ayuba Balanko. It was argued that the Respondent discharged the burden of proof placed on her by law in proof of her case, the burden shifted to the Appellants to disprove same by

evidence, see, ORJI VS. DORJI TEXTILE MILL (NIG) LTD (2009) LPELR – 2766 (SC) PP.21 – 22, PARAS E – D. It was argued that the Appellants ought to have adduced evidence to prove that the 3rd, 4th and 5th Appellants are the children of the Respondent’s late father. It was submitted that the DW1 under cross examination admitted that there was no marriage between the mother of the 4th and 5th Appellants with the deceased father of the Respondent and there was no evidence to show that Mary Buba, the mother of the 3rd Appellant was ever married to the deceased and that he was born during the subsistence of such marriage. See, OKESHOLA VS. MILITARY GOVT. OYO STATE (2000) 13 NWLR (PT. 685) 494 at 501, PARAS. D – E, ELEWUJU VS. ONISAODU (2000) 3 NWLR (PT. 647) 95 at 119, PARAS. E – F. It was argued that looking at the first school leaving certificate of the 4th appellant, at page 270 of the records, the 4th appellant was born in 1989 the same year with the 3rd appellant as pleaded in paragraph 8 of the Statement of Defence. Also, the 5th appellant who testified as the DW4 in Exhibit 4, paragraph 7 of the Appellants’ Statement

of Defence, page 275 of the records under cross examination revealed that the 5th appellant was born on 1/2/89, page 275 of the records and also born on 1/2/91 in Exhibit 4, page 271 of the records. It was argued that the evidence of the Appellants as to the legitimacy of the 3rd, 4th and 5th Appellants apart from being inconsistent is contradictory and the only option as rightly done by the trial Court is to reject such evidence. See, YUSUF VS. OBASANJO (2005) 18 NWLR (PT. 966) 96 at 213, PARAS. D – F. On the contention of the Appellants at the trial Court that the Respondent cannot inherit from her father because she is a female child, reference was made to Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case ofUKEJE VS. UKEJE (2014) LPELR – 22724 (SC) PAGES 32 – 33, PARAS. E – G and ANEKWE & ANOR VS. NWEKE (2014) LPELR – 22697 (SC) at 36 – 37, PARAS. B – D.

On the issue that Exhibit 2 was not signed, it was submitted that the essence of a signature on a document is to authenticate such document, where as in this case the author is not in dispute and the

Appellants assented to it, the Court may admit and consider the said unsigned document. See, ASHAKA CEMENT PLC VS. A.M. INV. LTD (2016) 10 NWLR (PT. 1666) 446 at PAGE 464, PARAS. F – G and MTN (NIG) COMM. LTD VS. C.C. INV. LTD (2013) 7 NWLR (PT. 1459) 437 at PAGE 469, PARAS. F – H. It was argued that the issue of an unsigned document did not come up at the trial Court, the 1st Appellant having admitted that Exhibit 2 was prepared by him. It was submitted that the issue of an unsigned document is an afterthought and technical which should be discountenanced in order to do substantial justice. See, ORIJA VS. AKOGUN (2009) 10 NWLR (PT. 1150) 437 AT PAGE 455, PARAS. C – E.

On evaluation of evidence, it was submitted that the trial Court properly evaluated the evidence before it. See, LAFIA LOCAL GOVERNMENT VS. EXECUTIVE GOVERNOR NASSARAWA STATE (2012) LPELR – 20602 (SC) PAGE 23, PARAS. E – F. It was submitted that at pages 454 – 458 of the records, the trial Court summarized the evidence adduced by the parties and evaluated same at pages 460 – 461 of the records. See, ANYEGWU & ANOR VS. ONUCHE (2009) LPELR –

521 (SC) PAGES 13 – 14, PARAS. B – C. We were urged to hold that the Respondent discharged the first burden of proof placed on her by law while the Appellants failed to discharge the evidential burden placed on them by law.

The issues raised by the Appellants are covered by those of the Respondent. I would utilize the Appellants’ issues in the determination of the appeal. Under the appellants’ first issue, it was alleged that the trial Court did not pronounce on all the issues raised before it. From the printed records of appeal at page 154, the parties at the pre-trial session at the lower Court agreed on the issues for determination. At the close of the pre-trial session on 26/3/2014, the trial Court made the following order:
“The Defendants adopted the plaintiff’s issues for determination which are:
1. Whether the plaintiff being the only surviving child of late Ayuba Istifanus Balanko is entitled to all the properties jointly given to her and her late brother.
2. Whether the plaintiff is entitled to inherit her late father Ayuba Istifanus Balanko.
These shall be the issues for determination.”

But in the Appellants’ final written address, learned counsel to the appellants at the trial I.C. Osuji Esq. is the same counsel that settled the Appellants’ brief of argument, submitted four (4) issues for determination which were different from those settled by the parties at the pre-hearing session. The learned counsel submitted the following issues, at pages 437 – 438 of the printed records as follows:
1. “Whether there was a valid statutory marriage between the deceased and Peace Pwani Istifanus Balanko.
2. Whether the 3rd to 5th defendants are legitimate children of the deceased Ayuba Istifanus Balanko.
3. Whether there was a valid deed of gift to the plaintiff and her deceased brother by the deceased Ayuba Istifanus Balanko.
4. Whether the Customary Law of the deceased who died intestate should operate.”

Before the determination of the issues, the trial Court in its judgment at page 453 of the records of appeal recapped the issues for determination as agreed upon by the parties at the pre-trial session and ordered as follows:

“At the pre-trial stage, settlement of issues were filed by both parties wherein the plaintiff submitted two issues for determination thus:
1. Whether the plaintiff being the only surviving child of late Ayuba Istifanus Balanko is entitled to all the properties jointly given to her and her late brother.
2. Whether the plaintiff is entitled to inherit her late father Ayuba Istifanus Balanko.
These issues were adopted by the Defendants and agreed upon during the pre-trial to be the only issues for determination. Thus the case proceeded to full trial with the plaintiff calling two witnesses and tendering five documents …”

It is clear that the learned counsel to the Appellants departed from the agreed two issues for determination by the trial Court by formulating four (4) issues that were totally different from those agreed upon by the parties and the Court. The Appellants changed the issues settled at the pre-hearing session, therefore the trial Court was not bound to utilize those issues and was right to have discountenanced them and decided the case based on the two issues that were agreed upon during the

pre-trial session. There should be strict compliance with the agreed terms set out in the pre-hearing session as ordered by the Court after consultation and in agreement with the parties, the order is obligatory unless it is varied by the Court to the knowledge of both parties. There is nothing on record to show that the issues agreed upon at the pre-hearing session were varied by the trial Court, the issues agreed upon are the same as recapped by the trial Court as the issues for determination. At page 411 of the printed records of appeal, it is clear that the two issues submitted by the Respondent’s counsel for determination were those adopted by the Appellants’ counsel and agreed upon as the issues for determination at the pre-trial session which were accepted by the trial Court at the pre-trial session and rightly utilized by the lower Court for the determination of the issues before the Court. The trial Court was not bound to consider the four issues formulated by the Appellants which were outside those agreed upon by the parties and the Court at the pre-hearing session. The trial Court was right to have discountenanced the Appellants’

four issues. Issue one is resolved against the Appellants.

I would resolve the Appellants’ issues two and three together. As rightly submitted by the learned counsel to the Respondent, the burden of proof is on the person who alleges that certain facts exist to prove the existence of that fact, as provided by Section 137 of the Evidence Act, 2011. The Respondent at the trial Court made out that she was the sole surviving child of her father, late Istifanus Ayuba Balanko who died sometime in 2012, all that was required was for the Respondent to prove that she was her father’s only surviving child entitled to inherit his property. In proof of same, the Respondent’s mother testified as the PW1 while she testified as the PW2 and tendered Exhibit 2, the programme of events for the funeral of her late father to the effect that she was the only child of her late father. This fact was not discredited under cross examination. The 1st Appellant testified as the DW2, under cross examination at page 372 of the printed records of appeal in respect of Exhibit 2, the programme of events of the funeral of the Respondent’s father testified thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“During the burial the family prepared a programme for the burial. I was the one that prepared the programme. In the programme Mrs. Doris, Hafsatu and Ladabi were not mentioned as wives to my late brother.”
(Underlined mine for emphasis)

It is on record that the 1st appellant (DW2) and a brother to the Respondent’s late father admitted that he prepared Exhibit 2 in which the Respondent and her late brother were the only surviving children of the late Istifanus Ayuba Balanko as contained therein. The question that arises at this point is: why were the names of the 3rd, 4th and 5th Appellants not included in Exhibit 2, prepared by the DW2 to the knowledge of the family? The said Exhibit 2 was also not challenged by the rest of the Appellants, especially the 3rd, 4th and 5th Appellants who claimed to be the children of the late father of the deceased. Further, I would say that the non – inclusion of the names is for the mere reason that the 3rd, 4th and 5th Appellants are not children of the deceased Istifanus. The DW2 also clearly stated that the names of the mothers of the 3rd, 4th and 5th Appellants (Hafsat, Doris and Ladabi)

were not included in Exhibit 2. On the other hand, the DW1, the 2nd Appellant a brother to the deceased, and a co-administrator with late Israel Istifanus Balanko at pages 368 – 369 testified that Doris (mother of the 4th Appellant) and Labadi (mother of the 5th appellant) were never married to the late father of the Respondent and he did not know whether Hafsat is the mother of the 3rd appellant or not, he did not know her whereabout. The Respondent discharged the burden on her to prove that she is the only surviving child of the deceased. The Appellants who made out that the 3rd – 5th Appellants are sons of the late Istifanus therefore, had the burden shifted to them to disprove the Respondent’s assertion by evidence and prove that the Respondent is not the only surviving child of her late father entitled to inherit his property. The PW1 (the Respondent’s mother) also gave evidence that she was the only wife her late husband had, and that her late son Israel and the Respondent were the only children entitled to inherit his property as he had no other child. Further, that by their Jenjo tradition, a female child can inherit property

from her father, page 255 and 256 of the records, contrary to the contention of the Appellants at the trial Court that the Respondent cannot inherit her father’s property because she is a female child. Section 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has made it clear that no citizen of Nigeria should be subjected to any form of disability or deprivation by reason of the circumstances of his birth with particular reference to the sex of the child. Therefore, any culture that disinherits a female child from her father’s estate has been declared as void and in breach of Section 42 (1) and (2) of the Constitution. See, OKAFOR VS. ISITORH & ANOR (2015) LPELR – 25892 (CA), ONYIBOR ANEKWE & ANOR VS. MRS MARIA NWEKE (2014) LPELR – 22697 (SC), CHIDULUO & ORS VS. MRS MARY ATTANSEY & ANOR(2019) LPELR – 48243 (CA) and UKEJE VS. UKEJE (supra).

The Respondent having adduced credible evidence to establish that she is the only surviving child of her late father, since the 3rd, 4th and 5th appellants made out that they are children of her late father, the burden was on them to discharge the

evidential burden that they are the children of late Istifanus Ayuba Balanko which the Appellants failed to do. The onus of proof is not static in civil cases but, shifts between the adverse parties from one side to the other as the case may be. It was the duty of the Appellants to dislodge what the Appellant asserted and proved that she is the only surviving child of her deceased father. See, UNION BANK VS. RAVIH ABDUL & CO. LTD (2018) LPELR – 46333 (SC) PP. 35 – 37, PARAS. B – C, OSAWARU VS. EZEIRUKA (1978) LPELR – 2791 (SC) PP. 13 – 14, PARAS. E – B and ORJI VS. DORJI TEXTILE MILLS (NIG) LTD (2009) (supra) at PAGE 47, PARAS. C – E. The appellants failed to adduce evidence to dislodge the contents of Exhibit 2, since that did not happen, it is taken as admitted and established. See, Sections 131 and 133 of the Evidence Act, 2011. There was no evidence on record on the part of the Appellants through their witnesses to show that the late Istifanus Ayuba Balanko married the mother of the 3rd Respondent and that he was born while the marriage subsisted. The DW1 admitted under cross examination that Doris and Labadi

(mother of the 4th and 5th Respondents respectively) were never married to the Respondent’s late father. The evidence of the DW1 (a brother to the deceased) who testified at the trial on behalf of the Appellants as defendants was fatal to the Appellant’s case, his evidence supported the case of the Respondent, see, OKESHOLA VS. MILITARY GOVT. OYO STATE (2000) (supra) cited and relied upon by the learned counsel to the Respondent.

Even though I have held that the Appellants did not dislodge the Respondent’s assertion and proof that she is the only surviving child of her late father, like flogging a dead horse, in paragraph 8 of the appellants’ joint statement of defence it was pleaded that the 3rd appellant was born on 1st October 1989, coincidentally the 4th appellant’s First School Leaving Certificate which was pleaded in paragraph 6 showed that he was also born in 1989, there is nothing on record to show that their mothers were married to the late respondent’s father when the 3rd and 4th Appellants were said to have been born in 1989. In respect of the 5th Appellant who testified as the DW4, a look at paragraph 7 of

the Statement of Defence shows that the 5th Appellant was born on 1/2/86 while Exhibit 4, the 5th Appellant’s First Leaving Certificate shows that he was born on 1/2/91, the date of birth of the 5th Appellant is inconsistent and contradictory as to when he was born. The position of the law is clear that where evidence is inconsistent or contradictory, the Court cannot pick and choose which to utilize and which to discountenance, the trial Court was right not to have utilized the contents of Exhibit 4.

Exhibit 4 as proof of his birth to the Respondent’s late father. I am in agreement with the view of the trial Court at pages 461 – 460 that the DW4 (the 5th Appellant) who tendered the unreliable Exhibits 4 and 5 to show that he is a son to the Respondent’s late father could not explain why his name was not included in Exhibit 2 as a child of the Respondent’s late father, moreso when he claimed that the Respondent’s late father died in his hands, the conclusion arrived at by the trial Court cannot be faulted, I am at one with same. Also, as rightly held by the trial Court, documentary evidence is the best evidence and the best proof of its contents.

The learned counsel to the Appellants had argued that Exhibit 2 was not signed by the author. The authenticity of Exhibit 2 is not in question; the DW2 testified that he authored the said Exhibit and that it was made by the family. In such a situation as has arisen, Exhibit 2 is admissible and was indeed admitted as authentic by both parties. Since there is no doubt that Exhibit 2 emanated from the DW2, it rendered it admissible; the DW2 testified that he prepared Exhibit 2 on

behalf of the family. See,ABEJE & ANOR VS. APEKE(2013) LPELR – 20675 (CA) and AWOLAJA VS. SEATRADE G.B.V. (2002) 4 NWLR (PT. 758) 520. In the present case, the Appellants have not denied the fact that Exhibit 2 was prepared by the DW2 (1st Appellant) on behalf of the family.
On the other hand, it is noteworthy that a programme of events does not usually have a signature as perceived by the Appellants, a mark to show the author. The case would also have been different if the Appellants had rejected the programme of events Exhibit 2, as not having been prepared by the DW2 on behalf of the family, to their knowledge.

Also, when Exhibit 2 was tendered there was no objection on the part of the Appellants; it is late to challenge the said Exhibit at this point. See, EKPE VS. FAGBEMI (1978) LPELR – 1087 (SC) P. 5 PARAS. C – E, KASSIM VS. STATE (2017) LPELR – 42586 (SC) PP. 29 – 31, PARAS. E – A, ABDULLAHI VS. LAKISAI (2018) LPELR – 46669 (CA) PP. 26 – 28, PARAS. D – B, ALADE VS. OLUKADE (1976) 2 SC 183 at 119 and RAIMI VS. AKINTOYE (1986) 3 NWLR (PT. 26) 97. The law is that, if a party fails to raise

objection to the admissibility of a document tendered by the opposite party, the party who failed to object to the admission of such document cannot later raise the issue of admission of the document by the trial Court at the appellate Court. The learned counsel to the Respondent rightly observed that at the trial when Exhibit 2 was tendered, its authorship and absence of the signature of the author was not an issue. I am of the same view. I hold that the learned trial judge properly evaluated the evidence of the parties before the trial Court and rightly held that the Respondent discharged the burden placed on her while the Appellants failed on their part to establish that the late father of the Respondent had other children other than the Respondent and her later brother Israel. I cannot fault the decision of the trial Court. Issues two and three are resolved against the Appellants.

In the final analysis, I dismiss the appeal for lacking in merit. I affirm the judgment of the learned trial judge. I award N100,000.00 (One Hundred Thousand Naira) costs to the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just

delivered by my learned brother, CHIDI NWAOMA UWA, J.C.A. and I agree that the appeal has no merit.

For the reasons contained in the judgment of my learned brother, I too dismiss the appeal for lacking in merit, and affirm the judgment of the Court below.
I abide by all orders in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Chief L. D. Nzadon Esq. with him, Hussaini G. Maidawa Esq. and Bobgah Samuel Esq. For Appellant(s)

Respondent’s counsel absent. For Respondent(s)