CELINE ONYEBUCHI EKENGWU v. GRACE EKENGWU
(2018)LCN/12485(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/143/2014
RATIO
COURT AND PROCEDURE: WHERE ALLEGATION IS MADE IN A CIVIL CLAIM
“Where allegation of that nature is made in a civil claim, it is for the person making it to prove it by a standard of proof ‘beyond reasonable doubt’ notwithstanding that it is a civil claim and decision on this point are legion as for instance: Nwobodo Vs. Onoh (1984) 1 SCNLR 121; Abibatu Folami Vs. Flora cole (1990) 2 NWLR (Pt. 133) 445 or (1990) 4 SCNJ 13; Adelaja Vs. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Kamu C. Effiong Vs. Emezi (2012)LPELR-15356(CA);Anambra State Government Vs. Gemex Int. Ltd (2011) LPELR-19733(CA). In Jibril Vs. Military Administrator, Kwara State & Ors (2007) 3 NWLR (Pt. 1021) 357, this Court per Ogunwumiju, JCA held that ‘the standard of proof where crime is alleged in civil proceedings is proof beyond reasonable doubt.'” PER SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“Evaluation of evidence is the primary function of the trial Court to perform. It entails the assessment of evidence placed before the trial Court by parties to the case through witnesses and documents tendered as evidence. Evaluation demands that evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Actual evaluation entails reasoned belief of evidence of one party to the other. See: Aregbesola Vs. Oyinlola (2010) LPELR-3805 (CA); Attah V. State (2009) 15 NWLR (Pt. 1164) 284. After a careful perusal of the Judgment of the trial Court, I find it difficult to agree with the appellant and her counsel that her case/evidence and that of the witnesses called by her at the trial Court was not considered or evaluated at that level.” PER SAIDU TANKO HUSSAINI, J.C.A.
Before Their Lordships
OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINIJustice of The Court of Appeal of Nigeria
Between
CELINE ONYEBUCHI EKENGWUAppellant(s)
AND
GRACE EKENGWURespondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The High Court of Enugu State sitting in Enugu on the 7th November, 2013 dismissed the case brought before it in which the plaintiff now appellant as per the amended statement, claimed against the defendant now respondent, the reliefs at paragraph 36 of the amended statement, that is:-
(a) A declaration that the property known as No. 22 Amah Street otherwise known as Block 32 plot 7 Achara Layout Enugu (covered by a Power of Attorney in favour of the plaintiff as 68-68-1565 in the register of Deeds kept in the Lands Deeds registry, Enugu) belongs to the plaintiff.
(b) An order delivering the said property and premises to the plaintiff.
(c) An order of Perpetual Injunction restraining the defendant by himself or through servants or privies by whatever name or description from remaining or stepping into the land in dispute.
(d) Ten Million naira special and general damages:
i. Special Damages: N2, 520, 000 at the rate N840, 000 per annum rental value of the property from August 2006 to July 2009.
ii. N840, 000 per annum or 70, 000 per month from August 2009 till possession is obtained by the plaintiff
iii. General Damages: N7, 480, 000.
The defendant/respondent had denied the claim hence the matter proceeded into hearing wherein parties on both side called evidence and also tendered a number of documents in evidence.
The appellant is a nurse by training and now live in London, but before relocating to the united Kingdom, she was gainfully employed in Nigeria as a nurse.
The case of the Plaintiff now Appellant, put briefly, is that the property at No. 22. Amah Anah Street, otherwise known as Block 32 plot 7 Achara, layout, Enugu belongs to her. She had commissioned her elder brother Benedict Onyibor Ekengwu, the husband to the respondent, to buy two properties for her, one to be located in Awka and the other in Enugu. Towards this end she authorised her bank, the Union Bank to include him as co-signatory to her account so as to facilitate his access to her account. By this agreement her brother, Benedict, the respondent’s husband withdrew monies from the account in the name of the appellant to buy the property, one of which is the property in dispute.
The plaintiff/appellant later discovered that instead of her brother buying the property in dispute in her name, the title documents were prepared in the name of respondent’s husband, who is her brother. These facts came to light when upon arriving in Nigeria from the United Kingdom, the appellant demanded to see those documents of title but to her greatest surprise the documents were transferred in the name of the respondent’s husband. The appellant, ostensibly disturbed by the attitude of her brother, took the matter before the elders in the family wherein the family council after hearing from them, that is, appellant and his brother, Benedict, advised the latter to do the needful and transfer the property in dispute to the appellant. Respondent’s husband accepted the decision of the elders of the family to transfer the property to the appellant in her name. To this end, both sides executed an agreement in the year 2001 drawn by their solicitor but unknown to the appellant, her brother kept away from her the deed of lease/assignment which originally transferred title to the respondent’s husband.
Meanwhile the appellant in the belief that she had sorted out the differences with her brother, Benedict, commenced repair and renovation of the property in dispute, where her brother and his wife the respondent, had relocated, to live in.
Upon the demise of Mr. Benedict Onyibor Ekengwu, appellant’s brother, his wife Grace Ekengwu, now the respondent claimed that the property in dispute belong to her late husband and for which reason would not vacate the house or property as requested of her. She claimed that her husband was not insolvent and thus could not afford to buy the property in dispute as claimed except on account of the appellant.
On the demise of Mr. Benedict O. Ekengwu, his wife, the present respondent was substituted as a party. Her case is that the property in dispute belong to her late husband. That although her husband earned his livelihood as a driver and at one time was a security guard, he was able to garner resources/money which he made as a contractor to buy/purchase the property in dispute. Through her, Exhibit ‘J’ was tendered in evidence.
At the close of the evidence of parties on both sides, the trial court in a considered Judgment delivered on 7th November, 2013 dismissed the claim. Plaintiff has appealed to this Court against that decision of the Enugu State High Court. The Notice of Appeal dated and filed on the 4th February, 2014 has Eight (8) Grounds of appeal as reflected at pages 315 – 321 of the record of Appeal. Parties filed and exchanged their briefs of argument in terms of the:
i. Appellants’ brief of argument dated 30th April, 2014.
ii. Respondent’s brief of argument deemed filed on the 15th November, 2017
iii. Appellant’s reply brief of argument filed on the 29th November, 2017.
The parties, through counsel adopted their respective briefs of argument at the hearing on the 25th April, 2018. Chief O. Ugola, SAN, with I. I. Iloani and Patricia Agu, learned counsel for the appellant urged us to allow this appeal and set aside the Judgment of the High Court of Enugu State and enter Judgment for the appellant in terms of her claim. We were urged to dismiss the counter-claim of the respondent.
Miss N. Aroh, learned counsel for the respondent who earlier adopted the 6 (six) issues formulated in the appellant’s brief of argument urged us to dismiss this appeal and uphold the Judgment of the Court below.
The following 6 (six) issues were formulated for determination, namely:
(a)Whether the trial Court can raise issues suo motu without calling upon the parties or their respective counsel to address him on the issue so raised? [Distilled from Ground One]
(b) Whether the findings of the trial Court on Exhibit B are not contradictory and perverse? [Distilled from Ground two]
(c) Whether Section 9[1] of the Actions Law of Enugu state of Nigeria is applicable to the facts of this suit? [Distilled from Ground Three]
(d) Whether the findings of the trial Court on Exhibit A was right in law? [Distilled from Ground 4]
(e) Whether the findings of the trial Court that the plaintiffs claim could only be proved beyond reasonable doubt while on the other hand it held that the defendants counter claim be proved by preponderance of evidence is sustainable in law [Ground five and six].
(f) Whether the judgment met the characteristics of a good Judgment when the trial Court failed to evaluate the evidence of the plaintiff and her witnesses in the Judgment [Ground Seven and Eight].
Counsel submissions:
Issue No. 1 is reproduced: the appellant and her counsel strongly believe that the finding or remark made by the trial Court at page 300 lines 19 – 24 of the record of appeal was an issue raised suo motu by the trial Court who ought to have accorded the parties, especially the appellant opportunity to address on it. Without that opportunity being given, the trial Court, proceeded to expunge Exhibit ‘B’ from record and this it is contended, has occasioned a miscarriage of Justice affecting the appellant’s right of fair hearing. Learned appellant’s counsel urged us to resolve issue No. 1 in favour of the appellant.
Arguing contrariwise on the same issue, we were referred to pages 240 – 242 of the record of appeal by counsel for the respondent to submit that the issue of the admissibility of Exhibit ‘B’ and the probative value to which the trial Court can attach to it, was all along addressed by counsel even before the Court came to the conclusion to expunge it from record. To the learned respondents counsel therefore, the question of the admissibility of Exhibit ‘B’ and the eventual decision of Court to expunge same was not a point raised by the Court suo motu neither was the appellant denied his right to fair hearing.
The remark or issue said to have been raised suo motu by the trial Court is at page 300 lines 19-24 and I reproduce same thus:-
‘The deed of Assignment therefore is meant to transfer the property in dispute to the plaintiff in which case it is a document for transfer of title to the property. That document ought to have been registered. On this ground Exhibit ‘B’ is expunged as part of the evidence of the plaintiff. It was inadmissible ab initio this Court does not need to call for address of counsel before expunging it from the record.”
Before I address the question under review, I should say that an issue is said to have been raised suo motu when the Court on its own considers a matter or point to be material and for proper determination of the case, raises the matter or point, usually issues of fact. A Court ought not to raise an issue of fact suo motu without giving the parties the opportunity to be heard on it before proceeding to decide on it.
See: Effiom Vs. CROSIEC (2010) 14 NWLR (Pt. 123) 106, 133. Opportunity must always be given to parties to be affected to address the Court who raised that issue of fact suo motu. Failure to do so will constitute a denial of fair hearing. See: Unical Vs. Umoh (2011) 5 NWLR (Pt. 1241) 546, 553. However in some special circumstances, the Court can, as in issue of law or jurisdiction, raise same suo motu and proceed to decide on such issues without hearing the parties on it. Tukur Vs. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Effiom V. CROSIEC (supra).
So the question of the registration of a deed of assignment and the transfer of same is a question of law. See: Section 11 of the Lands Instrument (preparation and Registration) law Cap 100, Revised Laws of Enugu State, 2014. Therefore, in appropriate cases where issues like this are raised by the Court on its own, the Court on the strength of laws, relevant to the issue can proceed to rule on the point. I should say in any case, as it relates to the question on hand that the issue of the admissibility of Exhibit ‘B’ cannot be said was raised by the Court on its own.
In the first place, Exhibit ‘B’ was admitted through Pw1 without objection in the course of his evidence in chief on the 14th February, 2017. See pages 268 ? 270 of the record. In the written address of the Respondent as the defendant at the trial Court, his counsel at pages 240-242 alluded to the admissibility of Exhibit ‘B’ in his address and prayed the Court to expunge same from the record of the trial Court. Meanwhile the appellant (as plaintiff) in his written address at pages 228-239, particularly the last paragraph at page 230 of the record, rely on Exhibit ?B? as sufficient evidence of title or transfer of same. To me therefore, it is clear that parties on both sides had addressed issues relating to Exhibit ?B? or the admissibility of same, hence the plaintiff/appellant cannot hide under the doctrine of fair hearing, to submit that she was denied her right to be heard.
I should discountenance that submission of learned counsel for the appellant although in appropriate cases where an issue like this arises that is, where a Court on own its own, suo motu raises an issue of fact and proceed to address on it, without hearing the parties on it, the decision eventually given will be set aside on account of want of hearing, giving rise to miscarriage of Justice. See: Ogembe V. Usman (2011) 17 NWLR (Pt. 1277) 638, 656. Olubode Vs. Salami (1985) 2 NWLR (Pt. 7) 282; Imah Vs. Okogbe (1993) 9 NWLR (Pt. 316) 159. Although parties before the trial Court addressed it on the question of the admissibility of Exhibit ‘B’ as an ‘Instrument’ within the meaning of Section 11 of the Land Instruments Law of Enugu State, of which the trial Court also ruled to expunge that document from the record, the question which continue to occupy my mind is whether Exhibit ‘B’ was indeed pleaded and tendered as a document of title notwithstanding the submission made to that effect by counsel to the appellant at the trial Court?
At paragraphs 23, 24, 25 of the amended Statement of claim are facts which indicate that the appellant and Respondent’s husband had issues over the manner the latter caused the deed of assignment to be prepared in his name but upon the intervention of family members, who prevailed on respondent’s husband, the appellant and the respondent’s husband met a lawyer, Barr. D.N. Eneh who prepared other set of documents, this time, in the name of the appellant. The appellant plead at paragraph 25 thus:
‘Upon this decision, the plaintiff and the defendant in the company of one Francis Udeogu went back to Barr. D.N. Eneh and after being duly briefed on the true position prepared another set of documents: deed of Assignment and Power of attorney which the defendant executed in the presence of Barr. D.N. Eneh and witnessed by Mr. Francis Udeogu. The Power of Attorney has been duly registered in favour of the plaintiff.’
In her Statement made on oath which the appellant also adopted (pages 9-13 of the record) she gave evidence of that fact. See particularly paragraphs 23, 24, 25 of the amended Statement on Oath of the appellant.
Although, Exhibit ‘B’ is inadmissible as unregistered registrable instrument, it is nonetheless admissible evidence of a fact, in this case, to show or prove that, that document, (Exhibit B) was after all prepared in name of the appellant and same executed by the parties to it.
See: Opke V. Umokoro (2013) LPELR-21999 (CA); Awunedi V. Onwunere (1994) 1 NWLR (Pt. 321). In those circumstances, therefore Exhibit ‘B’ is admissible evidence, not as evidence of title. In this wise therefore, the trial Court was right when at page 301 line 1-3 of record, it observed that ‘Even if Exhibit B was not expunged from record, it cannot only be considered a document tendered not to establish title but to establish a fact pleaded’, but wrong to have expunged Exhibit B from the record. I am however not prepared to resolve issue No. 1 and 2 in favour of the appellant for reasons which I will address shortly under issue No. (d) below. Contrary to the submission made by the appellant in her brief of argument at paragraph 3.08, Exhibit ‘B’ is not the fulcrum of the appellant’s case. I will stop at that for the time being to pave the way for issue No. 3.
Issue No. 3 is on the question whether Section 9 (1) of the Actions Law of Enugu State of Nigeria is applicable to the facts of this suit. Addressing this issue in his brief of argument, learned appellant counsel argued that the Court below was wrong to rely and act on Section 9 (1) of the Action Law of Enugu State to dismiss the Suit of the Appellant. He referred us to the finding of the trial Court at page 308 lines 11-14 where the Court had held that since there was no evidence that respondent’s husband was ever prosecuted for felony for his acts for obtaining by false pretence, the suit presented by the plaintiff/appellant was not maintainable, by reason of Section 9 (1) of the Action Law of Enugu State.
Learned appellant’s counsel argued that the subject matter of the claim at the trial Court is the House at No. 22 Amah Street, Acharla Layout Enugu and by reason of Section 386 of the Criminal Code of Enugu State, 2004, Cap 30, a house is not capable of being stolen, hence the trial Court’s finding that on the facts presented before it by the appellant constituted acts of felony over which respondent’s husband ought to have been prosecuted for his actions before the suit was filed, is wrong, since a house is not capable of being stolen. As a consequence to that, it is argued that Section 9(1) of the Action law of Enugu State, relied on by the trial court, is inapplicable.
He argued in the alternative, that by reason of the family intervention over the dispute between the appellant and her brother, there was no longer the need to prosecute him (respondent’s husband) hence provision of Section 9(1) of the Law had been complied with.
Arguing to the contrary counsel for the respondent referred us to paragraph 3(ii) (iii) of the amended Statement of claim to submit that by that pleading and evidence led, respondent?s husband obtained money from the appellant. According to him, what was stolen or obtained by false pretence was the money meant to be used for properties, of purchasing a building for the appellant and not the building itself hence the felony allegedly committed by respondent’s husband are stealing money by conversion and obtaining money by false pretence. To the learned respondent’s counsel, the provision of Section 9(1) of the Action law of Enugu State applies to the case, even more so that appellant failed to advance sufficient reasons to report the case to police for prosecution of same as a condition precedent to initiating the action. We were urged to resolve issue ?B? in favour of the respondent.
The Action Law of Enugu State provide thus:-
‘Subject to any written law in force in the State, where an act constitute a felony and at the same time infringes some right of, or causes damage to a person, the person whose right is thus infringed or who thus suffers damage shall not bring an action against the person doing the felonious act until such person shall have been prosecuted for the felony. Unless satisfactory explanation is given for non-prosecution.’
It is clear that by the plaintiff’s/appellant’s own pleading at paragraph 3(ii) (iii) and her evidence, respondent’s husband obtained money from her to purchase property on her behalf but ended in purchasing the property in his own name. The false pretence by which that money was obtained is the issue and not the property or the building itself as erroneously argued by the learned counsel for the appellant. Obtaining money by false pretence is a felony. See section 386 of the Criminal Code, Laws of Enugu State, 2004. The victim of an act of felony cannot proceed and maintain action or claim in respect of that act or conduct unless and until the perpetrators of the act had been brought to book by way of prosecution. This is what Section 9(1) of Enugu State Action Law is about. On the facts presented in this case on appeal, the trial Court rightly invoked this provision of the law and I fully agree with the learned trial Judge that in the absence of any evidence that respondent’s husband was prosecuted or a report in that regard was earlier made to relevant authorities, for his prosecution, it will be premature to institute action (against the respondent) as done, in this case on appeal. See: Cross River University of Technology Vs. Obeten (2011) LPELR -4007 (CA); Virgin Nigeria Airways Vs. Roijien (2013) LPELR-22044 (CA); Uzobiah V. Oneh (1999) 5 NWLR (Pt. 001) 13.
Under Section 9 (1) of the Action Law of Enugu State, the element of Prosecution is a mandatory requirement for instituting a suit or action founded on acts of felony as a condition precedent except in cases where satisfactory explanations were given for failure of compliance. The fact that the family of both the appellant and respondent’s husband intervened to resolve differences between them cannot be the expected explanation under the law in a case like this, of an act bordering on criminality, provision of the law relating thereto has to be complied with no matter what. I resolve this issue No. 3 against the appellant and in favour of the respondent.
Issue No. 4 in the appellant’s brief of argument deals with the question whether the finding of the trial Court on Exhibit ‘A’ was right in Law. This issue is derived from ground four of the grounds contained in the Notice of Appeal. The appellant through his counsel has argued in his brief that the finding of the Court below that Exhibit ‘A’, the power of Attorney donated by the respondent’s husband to the appellant is not a document of title, is to him, wrong in law. To the learned counsel, Exhibit, ‘A’ having been registered as an instrument, is a document of title and the same effectively transferred the property in dispute to the appellant and he relied on Chime V. Chime (2001) 3 NWLR (Pt. 701) 577, 554-555. He urged us to so hold. Respondent?s counsel, relying on the decision in Ude V. Nwara (1993) 2 NWLR (Pt. 256) 638, 651 argued contrariwise and submitted that a power of Attorney whether revocable or irrevocable is not a document by which title to property is transferred or conveyed. He urged us to so hold.
There is a consensus between the parties that Exhibit ‘A’ is indeed the power of Attorney used by respondent’s husband, on 4th May 2001 and by it, the appellant was appointed as ‘Attorney’ to take ‘full charge and absolute possession of the above property for her benefit’, that is, the property in dispute.
By its meaning and intendment, a Power of Attorney does not convey title. Rather a power of Attorney is the authority given to the donee, the appellant in this case, to exercise certain powers on behalf of the donor, in this case, respondent?s husband. It does not transfer interest in the land neither does it alienate the land in favour of the donee no matter how flamboyantly, the contents of the Power of Attorney was drawn. It is merely an instrument of delegation of power. See: Black’s law Dictionary, 9th edition and the decision in: Nwachukwu Vs. Awka MFB Ltd (2016) LPELR-41055 (CA); Ude Vs. Nwara (1993) 2 NWLR (Pt. 278) 638 or (1993) 2 SCNJ 47; Chime V. Chime (2001) 3 NWLR (Pt. 701) 527.
The apex Court in Ude Vs. Nwara (supra) held that:
‘A Power of Attorney merely warrants and authorizes the Donee to do certain acts in the stead of the Donor and so is not an instrument which confers transfers, limits, charges or alienates any title to the done rather it could be a vehicle where these acts could be done by the Donee for and in the name of the Donor to a third party
It can be seen by her pleading in the amended statement, that the claim of the appellant is anchored on Exhibit ‘A’, where at paragraph 30 (a) the appellant sought for:
“A declaration that the property known as No. 22 Amah Street otherwise known as Block 32 Plot 7. Achara Layout, Enugu (covered by a Power of Attorney in favour of the plaintiff registered as 68 ? 68-1565 in the Register of Deeds kept in the Lands Deeds Registry, Enugu) belongs to the plaintiff.”
Proof by the production of Power of Attorney is not one of the ways recognised in Idundun v. Okumagba (1976) 9-10 SC 227, 246-250 for proof of title. This authority has been followed by a host of other cases.
The appellant’s claim for title is anchored on Exhibit ‘A’. The claim is not anchored on Exhibit ;B’, so even if Exhibit ‘B’ were regular and properly before the trial Court, an order can still not be made in relation thereto for a declaration of title in favour of the appellant. Since the claim of the appellant was/is not anchored on Exhibit ‘B’, the order made at the trial Court expunging same from the record, has no negative consequences on the entire case, put up by the appellant. It is for this reason that issue No. 4, like issue Nos. 1 and 2 are resolved against the appellant and in favour of the respondent.
What standard of proof is required in civil action where an allegation of commission of crime is made? This is the question raised as issue No. 5 in the appellant’s brief of argument. This issue is based on grounds five and six of the Notice and grounds of appeal.
It is the contention of counsel for the appellant that the duty on every claimant in a civil action is to lead evidence to prove his claim on balance of probability but where in a civil claim, an allegation of commission of crime is made, the claimant has a duty to prove that fact beyond reasonable doubt. In this connection, it is argued by him that the trial Court was in error when at page 30 lines 14-18 of the record held that where action was founded on criminal allegation the standard of proof in the civil action was no longer on a balance of probabilities but beyond reasonable doubt Learned counsel argued that the trial Court was in error to dismiss plaintiff’s claim in its entirety on account of her failure to prove her civil claim ‘beyond reasonable doubt’.
At paragraph 6 (i) (ii) (iii) (iv) of the reply to defendant’s statement of defence at pages 92-93 of the record, contain averments amounting to crime on the part of respondent’s husband who was alleged to be fraudulent in his dealings in relation to facts giving rise to this civil case on appeal. Where allegation of that nature is made in a civil claim, it is for the person making it to prove it by a standard of proof ‘beyond reasonable doubt’ notwithstanding that it is a civil claim and decision on this point are legion as for instance: Nwobodo Vs. Onoh (1984) 1 SCNLR 121; Abibatu Folami Vs. Flora cole (1990) 2 NWLR (Pt. 133) 445 or (1990) 4 SCNJ 13; Adelaja Vs. Fanoiki (1990) 2 NWLR (Pt. 131) 137; Kamu C. Effiong Vs. Emezi (2012)LPELR-15356(CA);Anambra State Government Vs. Gemex Int. Ltd (2011) LPELR-19733(CA).
In Jibril Vs. Military Administrator, Kwara State & Ors (2007) 3 NWLR (Pt. 1021) 357, this Court per Ogunwumiju, JCA held that ‘the standard of proof where crime is alleged in civil proceedings is proof beyond reasonable doubt.’
This being the law, I cannot fault the finding made at the trial Court at page 308 of record which is the subject of complaint under in the issue now being considered. Failure to meet that standard of proof will lead to the case of plaintiff being dismissed and I am one with the Court below that the appellant having failed to lead evidence in proof of the fraudulent conduct of respondent’s husband, will lead to her case being dismissed as the trial Court rightly did.
The trial Court in any case, went further at page 308 of the record to hold that the case presented by the appellant did not also meet the standard required of proof on a balance of probability in civil cases, to entitle the appellant to judgment. I also agree with that finding of the Court below viewed from the fact that material evidence which the appellant needed to supply to entitle her to declaratory reliefs sought by her were not supplied. Her claim must fail hence issue No. 5 accordingly, is resolved against the appellant.
Issue No. 6 relates to evaluation or lack of it of the evidence of the plaintiff/appellant and her witnesses by reason of which the appellant and her counsel felt that Judgment delivered at the trial Court fall short of the standard of a good Judgment. Learned appellant’s counsel argue that whereas the case/evidence of defence was considered and evaluated, the trial Court did not consider evidence of appellant and her 3 (three) witnesses including documents tendered in her favour worthy for evaluation citing the decision in Abubakar v. Nasamu (No. 1) (2012) 17 NWLR (Pt. 1330) 401, 469.He argued that since the evidence of the appellant and witnesses were not evaluated, the decision of the trial Court should not be allowed to stand.
Evaluation of evidence is the primary function of the trial Court to perform. It entails the assessment of evidence placed before the trial Court by parties to the case through witnesses and documents tendered as evidence. Evaluation demands that evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Actual evaluation entails reasoned belief of evidence of one party to the other. See: Aregbesola Vs. Oyinlola (2010) LPELR-3805 (CA); Attah V. State (2009) 15 NWLR (Pt. 1164) 284. After a careful perusal of the Judgment of the trial Court, I find it difficult to agree with the appellant and her counsel that her case/evidence and that of the witnesses called by her at the trial Court was not considered or evaluated at that level.
The trial Court in its Judgment made some significant findings of fact, and these are all borne out of evaluation exercise. As for instance Exhibit B tendered in support of the case for the appellant, although admitted in evidence at the point it was tendered, the Court eventually expunged same from record (whether rightly or wrongly) on account of same not having been registered as an instrument of title. This finding of the Court below is borne out of evaluation of evidence before the Court. Secondly in relation to Exhibit ‘A’ the Court found as a fact that Exhibit ‘A’ being the power of attorney donated by the respondent’s husband to the appellant, could not convey or transfer title to the appellant. It is significant to note that one of the reasons why the appellant failed in her claim is because the declaratory relief sought by her for title was tied to Exhibit ‘A’. The trial Court at page 302 took pains to hold that a declaratory title cannot be made on the basis of a power of attorney as in Exhibit ‘A’.
The appellant who asserted in her pleading that respondent’s husband, her blood brother, was fraudulent in his dealings on the facts giving rise to this case on appeal, was found, at the trial to have failed to prove that claim or assertion beyond reasonable doubt. Her case was also dismissed on that account. In the face of all those glaring findings of fact, it is not correct to contend that the trial Court failed to evaluate evidence supplied by the appellant at the trial Court. This claim or contention before us must fail hence issue No. 6 is similarly resolved against the appellant and in favour of the respondent.
In the light of my discourse as above, this appeal is on the whole, an appeal without merit hence same is dismissed. The Judgment delivered at the High Court of Enugu State on 7th November, 2013 in Suit No. E/462/2009 is affirmed. Cost is assessed in the sum of N50, 000. 00 in favour of the respondent and against the appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, Saidu Tanko Husaini, J.C.A.
I am in total agreement with His Lordship?s line of reasoning and the conclusion reached in the said leading judgment that the appeal is devoid of merits. I also dismiss the appeal and abide by the consequential orders made therein including that of costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA.
For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal.
I abide by all other orders including the order as to costs.
Appearances:
Chief O. Ugolo SAN with him, I.I. Iloani Esq. and Patricia Agu (Mrs.)For Appellant(s)
C. Chuma Oguejiofor Esq., with him, N. Aroh (Miss)For Respondent(s)
