CATHERINE OKORIE V. EZUGBO CHUKWUDI (2013)

CATHERINE OKORIE V. EZUGBO CHUKWUDI

(2013)LCN/6131(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of April, 2013

CA/E/373/2007

RATIO

APPEAL: GROUNDS OF APPEAL: WHEN NO ISSUE IS FORMULATED FROM A GROUND OF APPEAL

It is settled that a ground of appeal from which no issue has been formulated must be treated as abandoned and must be struck out. See SAPO V. SUNMONU (2010) ALL FWLR (PT. 531) 1409: ONIFADE V. OLAYIWOLA (1990) 11 SCNJ 10: NGILARI V. MOTHERCAT LTD. (1993) 8 NWLR (PT. 311) 377: BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR (PT. 262) 641: MODUPE V. STATE (1988) 4 NWLR (PT. 87) 130: AHMED V. KALIGE (2003) FWLR (PT. 179) 1320.PER ISAIAH OLUFEMI AKEJU, J.C.A.

COURT: DUTY OF EVALUATION OF EVIDENCE

The respective roles of the trial and appellate courts in evaluation of evidence and ascription of value thereto have been well explained through several decisions of the apex court and this court, and it has become clear that the duty of evaluation of evidence belongs preeminently to the trial court that has the advantage of seeing and hearing the witnesses while giving testimony.PER ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: APPELLATE COURTS WILL NOT ORDINARILY INTERFERE IN THE FINDINGS OF THE TRIAL COURTS

Based on this unique position of the trial court, the appellate court that does not possess that opportunity the trial court has will not ordinarily interfere with the findings of the trial court or substitute its own views of facts for those of that court except where it has been shown that the trial court has failed to make findings on material issues or has reached a wrong conclusion and it is in the interest of justice to interfere. See ODOFIN V. AYOOLA (1984) 11 SC 72; EZUKWU V. UKACHUKWU (2004) 17 NWLR (PT. 902) 227: OGBECHIE V. ONOCHIE (1988) 1 NWLR (PT. 470) 370: NNEJI V. CHUKWU (1996) 10 NWLR (PT. 578) 265: AKPAN V. OTONG (1996) 10 NWLR (476) 108: OGBU V. WOKOMA (2005) ALL FWLR (PT. 277) 815. Where however the evaluation does not involve credibility of witnesses, the appellate court is in as good a position as the trial court to assess the evidence. See AKINTOLA V. BALOGUN (2000) 1 NWLR (PT. 642) 532: BEGHA V. TIZA (2000) 4 NWLR (PT. 652) 193: FINEBONE V. BROWN (1999) 4 NWLR (PT. 600) 613.PER ISAIAH OLUFEMI AKEJU, J.C.A.

EVALUATION OF EVIDENCE BY THE TRIAL COURTS

COUNTERCLAIM: NATURE
The settled position is that a counterclaim which is also called a cross action is a separate, independent and distinct action by a defendant who conceives that he has some reliefs that have arisen out of the same subject matter of the plaintiffs action or related thereto, but wants to avoid the rigours of another suit. Being an independent action, the counter claimant assumes the place of the plaintiff with all the attendant burden of proof and he can only get judgment in his favour where he discharges the burden of proof. See USMAN V. GARKE (2003) FWLR (PT. 177) 815 (2003) 14 NWLR (PT. 540) 261: OGBONNA V. ATTORNEY GENERAL IMO STATE (1992) 2 SCNJ 26: OBMIAMI BRICK STONE (NIG) LTD V. ACB LTD (1992) 3 NWLR (PT. 229) 260; OGLIOKO MEMORIAL FARMS. LTD V. NACB LTD (2008) ALL FWLR (PT. 419) 400. (2008) NSCOR (PT. II) 157: JERIC (NIG) LTD. V. UBN NIG. PLC (2000) 12 SC (PT. 11) 133.PER ISAIAH OLUFEMI AKEJU, J.C.A.

CIVIL LITIGATION: STANDARD OF PROOF
It is an elementary principle that civil causes are won on preponderance of evidence. It is the duty of the trial court to weigh the evidence of the parties on the imaginary scale of justice and give judgment to the side whose evidence weighs more. This is the principle in MOGAJI V. ODOFIN (1978) 4 SC 198. See also OKUPE V. IFEMEMBI (1974) 1 ALL NLR 375. This is what the learned trial judge has done in this case.
An appellate court will not disturb or interfere with the finding of a trial court that has been supported by credible evidence. See ENANG V. ADU (1981) 11-12 SC 25: THEOPHILUS V. STATE (1996) 1 NWLR (PT. 423) 139.PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

CATHERINE OKORIE Appellant(s)

AND

EZUGBO CHUKWUDI Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal was the plaintiff in suit No. O/117/2005 instituted at Onitsha Division of the High Court of Anambra State through the Writ of Summons filed with a Statement of Claim on 1/3/2005 for the following reliefs:
(a) Declaration that the plaintiff is the person entitled to the possession, use and occupation of the market stall No. OSP/MAJ/8, Ose Okwuodu Market, Onitsha.
(b) Recovery of possession of the said market stall.
The appellant who was the defendant filed a Statement of Defence and Counterclaim on 20/4/2005 denying the claim and sought the following as counterclaim;
(a) An order of declaration that the defendant is the bonafide owner user, occupier and possessor of market stall No. OSP/MAJ/8 (full) Ose Okwodu Market, Onitsha.
(b) One Million Naira (1,000,000.00) being damages for trespass.
(c) An injunction restraining the plaintiff, his agents, servants or any person claiming through him from harassing intimidating and/or locking up the said market stall.
(d) SPECIAL DAMAGE
The sum of N174,000 (one hundred and seventy four thousand naira) being the total income and profit the defendant derives from her sales at the said stall per month as special damages for preventing the defendant from carrying on her legitimate business since January 2005 until the day the plaintiff removes the barricade or the court give judgment.
PARTICULARS OF SPECIAL DAMAGES
(i) Profit/income from sales per day. … N6,000.
(ii) Profit/income for one month excluding Sundays calculated at the rate of N6,000 per day. …. N174,000.”
The respondent filed a Reply to Statement of Defence and Counterclaim on 10/5/2005.
The record of this appeal shows that the Suit No. O/117/2005 was struck out on 20/6/05, but upon the application of the appellant, the same was relisted on 21/11/2005 for the purpose of trial of the counterclaim at which two witnesses testified for the counterclaimant (now appellant) while the defendant to the counterclaim also called two witnesses. In the judgment delivered on 25/9/2006 per Vin N. Agbata J. the counterclaim was dismissed for want of merit.
The counterclaimant who felt dissatisfied with the judgment filed a Notice of Appeal on 19/12/2006 in commencement of this appeal with four grounds of appeal and prayed that the judgment of the trial court be set aside and that the reliefs of the counterclaimant be granted.
In pursuance of the appeal, the Appellants’ Brief of Argument prepared by D.C. Madueteshi Esq. was filed on 22/1/08 with two issues distilled for determination as follows:-
1. Whether the learned trial judge was right to have relied on exhibit D3 only to dismiss the counterclaim of the appellant.
2. Whether the learned trial judge properly evaluated and reviewed the entire evidence as led by the parties before reaching his decision.
In the Respondents’ Brief of Argument settled by L.A. Kwentoh Esq. of Counsel and filed on 16/3/2009 the respondent distilled a lone issue for determination, which is;
Whether the dismissal of the Defendant/Counterclaimant Appellant’s Counterclaim is the result of a proper appraisal and evaluation of the material and legal evidence in this case.
The contention of the appellant on issue one is that the learned trial judge was not right to have relied on an alleged Ledger of Onitsha Local Government admitted as exhibit D3 alone to dismiss the Counterclaim. It was argued that the said exhibit D3 bears the name of Onitsha Local Government that became defunct in 2001 while the market stall was allocated by Onitsha North Local Government that had issued exhibits P1, P2, P3, D1 and D2 tendered by the parties, and that the document, (exhibit D3) contained cancellation of names which was not countersigned and no explanation was given while the market stall in dispute was not reflected in the document at least in the name of the respondent’ s predecessor.
It was submitted by Counsel that a defaced or mutilated document has thereby lost its effectiveness or validity and, in the absence of explanation by an official of Onitsha local government, the learned trial judge should not have attached any weight to exhibit D3 or rely thereon to enter judgment for the respondent, he cited the cases of NNUBIA V. ATTORNEY GENERAL RIVERS STATE (1999) 3 NWLR (PT. 593) 82; ODI V. IYOLA (2004) 8 NWLR (PT. 875) 283: B.C.C. PLC V. SKY INSP. (NIG) LTD (2002) 17 NWLR (PT. 795) 86. It was submitted also that a court is not allowed to speculate or stray on a frolic of its own as it amounts to acting without jurisdiction; citing ALAMIEYESIEGHA V. FRN (2006) 16 NWLR (PT. 1004) 1.
Appellants’ Counsel contended further that the respondent pleaded that the name of one Kosiso Iyasara was entered into exhibit D3 but the name of the respondent which appeared thereon was not pleaded, and so no evidence was given in that regard while the name of Kosiso Iyasara that was pleaded was cancelled on the exhibit. It was submitted that parties are bound by their pleadings and unpleaded evidence goes to no issue; KYARI V. ALKALI (2001) 11 NWLR (PT. 724) 412.
According to learned Counsel, exhibit D3 appears to have been made for the purpose of this suit and Section 91(3) Evidence Act 1990 is applicable on the decision in OWENA BANK V. OLATUNJI (2001) 12 NWLR (PT. 781) 259. Again it was contended that the conditions for admissibility of exhibit D3 under Section 111 Evidence Act were not properly complied with, and no probative value or weight should have been accorded to that document. It was submitted that where an inadmissible document has been admitted even by consent of parties or without any objection, the court should not place any reliance on the document; LAMBERT V. NIGERIAN NAVY (2006) 7 NWLR (PT.980) 514.
It was contended that the learned trial judge failed to consider and make findings on the evidence of the appellant especially that she was in active possession of the stall for three years before the respondent started laying claim to it and the law ascribes better title to a person in possession or occupation as possession is nine truth of the law. JIBRIN V. BABA (2004) 16 NWLR (PT. 899) 243: IGE V. FAGBOUN (2004) 10 NWLR (PT. 721) 468: NYAGBA V. MBAHAN (1996) 9 NWLR (PT. 471) 207. It was submitted that a party in an action for declaration of title to land who relies on acts of ownership and possession as his root of title and satisfactorily proves same will be entitled to the declaration sought; ANYANWU V. MBARA (1992) 5 NWLR (PT. 242) 306.
It was contended that from its findings the court did not consider the effect of exhibits D4 and D5 and Counsel submitted that once a document is received in evidence, it becomes incumbent on the court pursuant to Section 91(3) of Evident to evaluate all documentary evidence before ir; AWUSE V. ODILI (2005) 16 NWLR (PT. 952) 416. Exhibits D4 and D5 according to learned Counsel, were tendered to prove that the respondent had been snatching market stalls from traders in the same manner as he has done in this instant case, and if those exhibits had been evaluated contemporaneously, the learned trial judge would have reached a different decision.
It was contended that the learned trial judge’s finding that exhibit D3 reflects the current interest holdings of stalls in the market is not based on any pleaded fact; but employed by the learned judge to supply missing link and thereby made a case for a party without acting on the admissible evidence before it, citing ISHOLA V. UBN (2005) 6 NWLR (PT. 922) 422; CHRISDON IND. CO. LTD V. A.I.B. LTD. (2002) 8 NWLR (PT. 768) 152: ONYEJEKWE V. ONYEJEKWE (1999) 3 NWLR (PT. 596) 482; IKENYE V. OFENNE (1985) 2 NWLR (PT. 5) 1.
The second issue is whether the learned judge reviewed the entire evidence of the parties before arriving at a decision, and specifically that the trial court did not evaluate the evidence of the appellant. The cases of MOGAJI V. ODOFIN (1978) 4 SC 91: ALABI V. DOHERTY (2005) 18 NWLR (PT. 957) 411: ODEJIDE V. FAGBO (2004) 8 NWLR (PT. 874) 1: EGBARAN V. AKPOTOR (1997) 7 NWLR (PT. 514) 559): OYEKOLA V. AJIBADE (2004) 17 NWLR (PT. 902) 356 were cited on the procedure to be followed by the trial court in the evaluation of evidence adduced before it.
It was contended again that the learned trial judge did not properly evaluate exhibit D3 and did not consider the impact of exhibits D4 and D5 as well as the evidence of the appellant that the respondent took this action because she (the appellant) failed to pay the sum of N150,000.00 demanded by the respondent.
It was submitted that in the circumstances stated in SALEH V. BON LTD (2006) 6 NWLR (PT. 976) 376, this court can re-evaluate the evidence of the parties and draw correct inferences from the established facts. Other cases cited are: HARUNA V. UNIVERSITY OF AGRICULTURE (2005) 3 NWLR (PT 912) 233: MAMMAN V. SALAUDEEN (2005) 18 NWLR (PT. 958) 478: ARCHIBONG V. EDAK (2006) 7 NWLR (PT. 980) 485; UDO V. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR (PT. 732) 116; GBADAMOSI V. DAIRO (2007) 3 NWLR (PT. 1021) 390.
It was submitted that a court must consider oral evidence together with the relevant exhibits tendered and cannot throw away one or the other, citing FAGUNWA V. ADIBI (2004) 17 NWLR (PT. 903) 544.
In the argument of the lone issue formulated by the respondent, it was submitted that as a claimant in the counterclaim, the appellant had become a plaintiff and had all the burden of proof as a plaintiff by relying on the strength of her own case and not on the weakness of the respondent’s case except where the respondent’s case supports the appellant’s case. Reference was made to Sections 136 and 137(1) & (2) of Evidence act, 1990, and the cases of KODILINYE V. ODU (1936) 2 WACA 336: GARBA V. KUR (2002) 8 NWLR (PT. 831) 280 were cited in support of this submission.
From their respective Statement of Claim and Defence, as argued by learned Counsel, the respondent had based his entitlement to the disputed stall on the Allocation Paper issued to his predecessor in title, one Kosiso Iyasara, as well as the transfer certificate issued to the respondent by Onitsha North Local Government while the appellant relied on Allocation Paper issued to one Mrs Mbanugo by Onitsha North Local Government. The Respondent however in the Reply to Counterclaim pleaded some official records of Onitsha North Local Government called a Ledger to the effect that the true owner of the stall was Kosiso Iyasara while Mrs Mbanugo was a stranger, and which fact made the respondent to purchase the stall from Kosiso Iyasara. The appellant did not file any further pleadings.
As further argued by Counsel, the appellant admitted the existence of this official record in her evidence when she stated that the local government erased the name of Mrs Mbanugo from the record and replaced same with her own name which fact was also acknowledged by the PW2 under cross examination that there is a ledger kept by the chairman of Onitsha Local government containing the names of allottees of stalls at Ose Okwodu Market and the numbers of the stalls allocated. The appellant failed to tender this ledger, but the respondent tendered the Certified True Copy thereof as exhibit D3 without any objection and no cross examination of the respondent on this exhibit D3.
The learned Counsel argued that from the undisputed facts of this case, there was double allocation of the market stall now in dispute with each of the parties claiming through different persons and the exhibits P1 and D1 relied upon by the parties bear the same date of issuance by Onitsha North Local Government and signed by the same chairman of that Local government. It was contended that the implication is that at that stage, the appellant did not adduce evidence that was superior to that of the respondent, and appellant therefore failed to prove her entitlement to the market stall and her case remained to be dismissed.
On the question of possession of the disputed stall by the appellant as canvassed in the appellant’s brief, the respondents’ Counsel contended that the possession was disputed by the respondent both in pleadings and in evidence. It was contended also that what is material and relevant from the facts of the instant case is not possession, but the register/ledger kept by the Local Government because the possession relied upon may turn out to be trespass. It is rather the ledger that will confirm the real ownership of the stall.
On exhibit D3 which was also raised and canvassed by appellant’s Counsel, the respondent’s Counsel stated that it is the certified true copy of the relevant page of Onitsha Local Government ledger showing the cancellation of the name of Kosiso Iyasara and the replacement by that of the respondent to show that the name on the ledger was that of Kosiso Iyasara, and not that of Mrs Mbanugo. The document was signed by the Head of Service of Onitsha North Local Government and stamped accordingly while receipt for certification is shown thereon.
On what the appellant’s Counsel highlighted as the defects that have robbed exhibit D3 of any probative value, such as cancellations that were not countersigned and non-compliance with Section 111 of Evidence Act, the learned Counsel argued that the document was tendered without any objection and without any cross examination thereon while whatever cancellation that appears on the document had been explained by the appellant and the respondent as well as their witnesses the conclusion of which is that it is a usual feature in the ledger to find cancellation of name of original allottee and superimposition of same by that of a transferee.
It was contended that exhibit D3 has satisfied the requirements of Section 111 of Evidence Act in that it contains the signature of the officer who had custody of the document and it bears the stamp of Onitsha North Local Government. Counsel submitted that the defects highlighted by appellant’s Counsel do not reduce the evidential potency of the document, moreso that no other ledger was tendered as that of Onitsha North Local Government. It was submitted that the trial court was not in any error to have placed reliance on the document in dismissing the appellant’s Counterclaim.
What this court can do even where it accepts the defects raised by the appellants is to expunge exhibit D3 from the proceedings which will not lead to reversal of the trial court’s judgment as the appellant will still have no other evidence to support her claim to ownership of the disputed market stall. Counsel referred to Section 227(1) Evidence Act, 1990 and cited the case of OKOBIA V. AJANYA (1998) 59 L.R.C.N. 38.
It was submitted that since the appellant accepted in evidence that the ledger kept by Onitsha North Local Government contains names of allottees and that her name was entered into the ledger after erasure of that of her predecessor in title but appellant failed to produce the ledger, the court should presume under Section 149(d) of Evidence Act that if the evidence had been produced it would have been unfavourable to the appellant.
On exhibits D4 and D5, the learned Counsel stated that they show that the respondent had sued two persons who illegally occupied shops he purchased from Kosiso Iyasara and the appellant was not a party to any of the suits therein while no evidence of the outcome of the suits was given in the instant proceedings. Counsel argues that exhibits D4 and D5 are irrelevant to the determination of this issue because no evidence was led to link those exhibits with the instant case.
At the hearing of the appeal, the learned Counsel for the parties adopted their respective brief of argument referred to in this judgment and relied thereon to urge that the appeal be allowed or dismissed as it may be applicable.
The facts from the pleadings and evidence in the record of appeal are simply that both the respondent as plaintiff and the appellant as counterclaim had based their claim on one and the same shop/stall described as OSP/MAJ/8 at Ose Okwuodu Market, Onitsha which the parties mutually agreed was constructed and allocated by the Onitsha North Local Government. The appellant claimed that the shop was originally allocated to one Cecilia Mbanugo who transferred same to her with all relevant documents with which she (appellant) effected the necessary replacement of the name of this Cecilia Mbanugo with her own name after which she took possession of the shop and was using it. In support of this assertion the appellant relied on three documents that were admitted as exhibits P1, P2 and P3 at the trial.
The respondent whose claim had been struck out and became a defendant to the counterclaim of the appellant only also stated that he acquired the same shop through purchase from one Kosiso Iyasara to who it was allocated and he obtained the allocation papers from this Kosiso Iyasara with which he effected a formal transfer of the shop to himself by the local government that allocated the shop. The respondent tendered exhibits D1, D2 and D3 to support his own assertion.
I should quickly state here that exhibits P1 by the respondent and D1 by the appellant are the same documents of Onitsha North Local Government titled “Allocation of Stall No. OSP/MAJ/8 at Ose Okwuodu Market, Onitsha.” They are both dated 9th October, 2001. Exhibits P2 and D2 headed Transfer of Allocation/Right of Occupancy are also documents of Onitsha North Local Government in respect of the same shop/stall No. OSP/MAJ/8, Ose Okwuodu Market, Onitsha.
Apart from these exhibits, the respondent tendered exhibit D3 as the certified true copy of the ledger of the local government as evidence of entry of his name in the records in replacement of the name of the original allottee, Kosiso Iyasara. The appellant also tendered exhibits D4 and D5 through the DW2 (the respondent) in the course of cross examination.
Upon the above position of the evidence, the learned trial judge stated at pages 60-61 that;
“It follows therefore that the Onitsha North Local Government allocated the shop in dispute to two persons, Cecilia Mbanugo and Kosiso Iyasara who at various times transferred their various interests in the shop to the plaintiff; and the defendant respectively. On the strength of exhibits P1, P2, P3, D1 and D2, the plaintiff is entitled to the ownership of the shop as well as the defendant. I am however constrained to rely on exhibit D3 and cast my lot in favour of the plaintiff. It is the trump card which the plaintiff has played in this matter. It is the duly certified true copy of the ledger book of the Onitsha North Local Government which reflects the current interest holdings of the public over market stalls of the Local government. There the shop in dispute, No. OSP/MAJ/8 is shown to have been originally allocated to Kosiso Iyasara whose name was later substituted with that of the plaintiff. It shows that from the records of the Local Government, the plaintiff is the owner of the shop.”
Although the appellant had formulated two issues in this appeal it is clearly understood that issue number one thereof is about the admissibility, assessment and evaluation of the document tendered as exhibit D3 while the second issue is also about the evaluation of evidence generally, the same as the lone issue raised by the respondent. Thus the material issue in this appeal is the evaluation of evidence by the learned trial judge.
The appellants’ two issues were formulated from grounds 1, 2 and 4 (for issue 1) and ground 2 (for issue number 2) and this clearly leaves ground 3 of the appeal idle without donating any issue for determination. It is settled that a ground of appeal from which no issue has been formulated must be treated as abandoned and must be struck out. See SAPO V. SUNMONU (2010) ALL FWLR (PT. 531) 1409: ONIFADE V. OLAYIWOLA (1990) 11 SCNJ 10: NGILARI V. MOTHERCAT LTD. (1993) 8 NWLR (PT. 311) 377: BAKARE V. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR (PT. 262) 641: MODUPE V. STATE (1988) 4 NWLR (PT. 87) 130: AHMED V. KALIGE (2003) FWLR (PT. 179) 1320. In line with this hallowed principle, ground 3 of the appellants’ grounds of appeal from which no issue has been formulated is struck out.

The principles that guide the court before which evidence is adduced as stated in MOGAJI V. ODOFIN (1978) 4 SC 91 is that before the court comes to a conclusion as to which it believes or accepts, it should first of all put the whole of the credible evidence adduced by the parties on an imaginary scale, weigh them together to see which is heavier, not by the number of the witnesses called but by the quality and then find the preponderance of the evidence. See also SHA JNR. V. KWAN (2000) 8 NWLR (PT. 670) 685: DIBIAMAKA V. OSAKWE (1989) 1 NWLR (PT. 96) 182.
The claim of the plaintiff (now respondent) was struck out and was not relisted for hearing. It was the Counterclaim of the appellant as defendant/counterclaimant upon which evidence was adduced. The settled position is that a counterclaim which is also called a cross action is a separate, independent and distinct action by a defendant who conceives that he has some reliefs that have arisen out of the same subject matter of the plaintiffs action or related thereto, but wants to avoid the rigours of another suit. Being an independent action, the counter claimant assumes the place of the plaintiff with all the attendant burden of proof and he can only get judgment in his favour where he discharges the burden of proof. See USMAN V. GARKE (2003) FWLR (PT. 177) 815 (2003) 14 NWLR (PT. 540) 261: OGBONNA V. ATTORNEY GENERAL IMO STATE (1992) 2 SCNJ 26: OBMIAMI BRICK STONE (NIG) LTD V. ACB LTD (1992) 3 NWLR (PT. 229) 260; OGLIOKO MEMORIAL FARMS. LTD V. NACB LTD (2008) ALL FWLR (PT. 419) 400. (2008) NSCOR (PT. II) 157: JERIC (NIG) LTD. V. UBN NIG. PLC (2000) 12 SC (PT. 11) 133.
I have calmly examined the documentary evidence in this case. Exhibit D3 is the document that has attracted much argument in the appellant’s first issue ranging from its inadmissibility to its improper application.
Exhibit D3 bears certification by Onitsha North Local Government as a true copy of the market ledger of Onitsha Local Government. As indicated thereon, it was certified on 8-6-2006 by the officer who indicated his name and official designation, and it is important that the document was tendered and admitted without any objection from the appellant, and the issue of cancellation or alienation now raised in this appeal was never an issue before the trial court. I find exhibit D3 to have been properly certified within the requirement of Section 111 of the Evidence Act, 1990 and enjoys the presumption of genuineness under Section 113 of the Act. Exhibit D3 is not a document that is absolutely inadmissible and as such the appellant who failed to object to its admissibility at the trial cannot be allowed to do so at this stage of appeal. See SHITTU V. FASHAWE (2005) ALL FWLR (PT. 278) 1017. Exhibit D3 shows that beyond exhibits P2 and D2, the name of the respondent was entered into the register of the local government as the person to who the shop was allocated, as opposed to the possession thereof relied upon by the appellant.
Exhibits D4 and D5 are copies of court processes issued by Onitsha Division of the High Court of Anambra State. They are Writs and claim dated 1/3/2005 in respect of Suits O/115/2005 -Ezigbo Chukwudi v. Mr. Obikwelu and O/118/2005 -Ezigbo Chukwudi V. Madueke Onovo. The processes were tendered by the appellant through the respondent under cross examination. The defendants in the two cases are not parties to this present case and they relate to shops OSP/MAJ/12 and OSP/MAL/6 respectively while the instant action is in respect of OSP/MAJ/8. I do not find their relevance to the instant case.
Notwithstanding the language of the learned trial judge or his style of writing, the implication of his finding and conclusion which I earlier stated in this judgment is that after assessing the evidence of the parties and weighing them together, the evidence of the appellant did not outweigh that of the respondent and therefore dismissed the case of the appellant.
It is an elementary principle that civil causes are won on preponderance of evidence. It is the duty of the trial court to weigh the evidence of the parties on the imaginary scale of justice and give judgment to the side whose evidence weighs more. This is the principle in MOGAJI V. ODOFIN (1978) 4 SC 198. See also OKUPE V. IFEMEMBI (1974) 1 ALL NLR 375. This is what the learned trial judge has done in this case.
An appellate court will not disturb or interfere with the finding of a trial court that has been supported by credible evidence. See ENANG V. ADU (1981) 11-12 SC 25: THEOPHILUS V. STATE (1996) 1 NWLR (PT. 423) 139.
From the foregoing I resolve the issues raised in this appeal in favour of the respondent. I find no merit in the appeal which I accordingly dismiss.
I awards costs of N30,000.00 in favour of the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft of the judgment delivered by my learned brother Olufemi Akeju JCA. I agree with the reasoning and conclusion. I also abide with the consequential orders.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the judgment just delivered by my learned brother ISAIAH OLUFEMI AKEJU JCA. I am in total agreement with the reasoning and conclusions therein. I also dismiss this appeal for lack of merit. I abide by the consequential orders including the award of costs.

Appearances

D.C. MaduechesiFor Appellant

AND

L.A. KwentohFor Respondent