CHARLES CHUKWUDOZIE OZOEMENE V. ANAKWEZE OZOEMENE
(2013)LCN/5954(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/E/166/2007
RATIO
”First, it is settled law that he who asserts must prove. See section 133 Evidence Act 2011. The onus is on the plaintiff to prove his case on the balance of probabilities. See Sections 132 and 134 of the Evidence Act 2011.” Per OWOADE, J.C.A.
”The purpose of cross-examination is to test the veracity and shake the credibility of a witness. If a witness gives evidence that is logically improbable or legally inadmissible, the other party may not have to cross-examine such a witness before calling rebuttal evidence if at all. The same situation applies to an admission that has no foundation in law and in fact. In order words, a party cannot be held to have admitted a fact which is impossible, or has no legal basis. See Odutola v. Paper Sack Nigeria Limited (2006) 18 NWLR (Pt.1012) 470 per Niki Tobi JSC.” Per OWOADE, J.C.A.
The Appellant as Plaintiff issued a writ of summons dated 22/8/2000 against the Respondent. This culminated into his statement of claim dated 20/2/2003 and filed on 24/2/2003 wherein he claimed against the defendant (Respondent, herein) as follows:
(a) A declaration that the Plaintiff is the person entitled to a statutory right of occupancy over the compound or “Ngwulu” known as and called “Ngwulu” be Ozoemene Okoye” situate at Umubele village Awka.
(b) An order of perpetual injunction restraining the defend ant, his agents, servants or privies from further trespassing on the Plaintiff’s said compound or “Ngwulu”.
(c) The sum of N5,000 000.00 (five million naira) being damages for trespass.
The relevant pleadings of the parties are:
(a) The Plaintiffs Statement of claim dated 20/2/2003 and
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
CHARLES CHUKWUDOZIE OZOEMENE Appellant(s)
AND
ANAKWEZE OZOEMENE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of P.C. Obiorah J. sitting at the High Court of Anambra State Awka delivered on 13th day of November, 2006.
The Appellant as Plaintiff issued a writ of summons dated 22/8/2000 against the Respondent. This culminated into his statement of claim dated 20/2/2003 and filed on 24/2/2003 wherein he claimed against the defendant (Respondent, herein) as follows:
(a) A declaration that the Plaintiff is the person entitled to a statutory right of occupancy over the compound or “Ngwulu” known as and called “Ngwulu” be Ozoemene Okoye” situate at Umubele village Awka.
(b) An order of perpetual injunction restraining the defend ant, his agents, servants or privies from further trespassing on the Plaintiff’s said compound or “Ngwulu”.
(c) The sum of N5,000 000.00 (five million naira) being damages for trespass.
The relevant pleadings of the parties are:
(a) The Plaintiffs Statement of claim dated 20/2/2003 and filed on 24/2/2003.
(b) Statement of Defence dated 16/9/2005 and filed on 19/9/2005 and
(c) Reply to Statement of Defence and Counter-Claim dated 16/10/2006 and filed on 18/10/2006.
The Appellant gave evidence and called one witness while the Respondent testified and called three witnesses.
The case of the Appellant is that he is the first son or ‘diopkala’ of Ozo Ozoemena-Dibor Okoye and therefore entitled to inherit his compound. He testified that his late father married two wives namely, Oyibo and Okwelu. The Appellant’s mother was Oyibo. The Appellant stated that the Respondent is not a son of Ozo Ozoemena Dibor Okoye but that the Respondent’s mother Onuigbo was married to Nzekwe Dibor Okoye. That, Nzekwe Dibor Okoye died and Onuigbo was impregnated by one Nwabunne Nwakolor and the Respondent was the result of that pregnancy. The Appellant maintained that the Respondent’s mother was not among his father’s wives.
The Respondent’s case is that, he is the eldest surviving son or diokpala of Ozo Ozoemena Dibor Okoye, who in his lifetime married four wives namely Ogbodie, Onuigbo, Unaku and Okwelu. The Respondent maintained that his mother Onuigbo, was lawfully married to Ozo Ozoemena Dibor Okoye and not Nzekwe Dibor Okoye, as alleged by the Appellant. The Respondent stated that the Appellant is a younger half brother begotten by Ogbodie, the first wife of Ozo Ozoemene Dibor Okoye.
In the course of the proceedings on 16/2/06, precisely after the evidence of PW2, the Appellant told the court his other witnesses were not in court, and the learned trial judge closed the Appellant’s case and called on the defence to open its case. At the close of evidence, the learned counsel to the parties filed their written addresses and on invitation of the court further addressed on the issue of non-suit.
In a considered judgment, the learned trial judge disbelieved the evidence of the Appellant and his witnesses and accordingly dismissed the suit.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing five Grounds of Appeal in this court on 24/1/07.
Appellant’s brief of argument dated 1/5/08 and filed on 02/05/08 was deemed filed on 11/2/09.
The Respondent’s Amended Brief of Argument dated 17/12/09 and filed on 21/12/09 was deemed filed on 22/6/10.
Learned counsel for the Appellant nominated five (5) issues for determination as follows:
1. Whether the appellant proved that his father Ozoemene Okoye married two (2) wives and whether the respondent’s mother was one of the wives of the said Ozoemene Okoye.
2. Whether the evidence of the appellant to the effect that on the death of Nzekwe Dibor, Onuigbo, the respondent’s mother was impregnated by one Nwabunne Nwakalor of Umubele village, Awka, was challenged by the respondent.
3. Whether the closure of the appellant’s case by court on 16/2/06, despite the fact that the appellant told the court that he still had other witnesses to call in proof of his case amounted to denial of fair hearing.
4. Whether the trial court considered the unchallenged evidence of the act of possession of the appellant to the effect that the respondent approached him in 1975 and appealed to him to allow him to put up a bungalow of three rooms and a parlour to accommodate him (respondent) and his family to which the appellant acceded to as well as other acts of possession by the appellant and whether the failure of the trial court to consider the said act of possession does not lead to miscarriage of justice.
Learned counsel for the Respondent adopted the issues formulated by the Appellant.
The Appeal shall be determined by the issues formulated by the Appellant. I will first deal with issue No. 3 after which issues Nos. 1, 2 and 4 would be considered’
Issue No. 3 raises denial of fair hearing and may or may not turn out to be the determinant issue in the appeal. On issue No. 3. learned counsel for the Appellant reiterated the events that took place in court on 16/2/06. That, the PW2 gave evidence for the appellant and was cross-examined on the said day. Thereafter, the appellant’s counsel applied for adjournment to enable him to call his next witness in that his next witness was not in court. However, the learned trial judge refused to adjourn the matter to enable the appellant to call his next witness. That the learned trial judge in refusing the application ruled as follows:-
“This case had been struck out for non prosecution by the plaintiff and later relisted. Today again, the plaintiff is not ready to go on despite the call by the court to go on with the case. By virtue of Section 9(2) of the Practice Direction No. 1 of 2005, I close the case of the plaintiff and call on the defendant to go ahead and open his case” (Page 70, Record).
Learned counsel for the Appellant furthered that when the learned trial judge refused adjournment to enable the appellant to call mere witnesses, defence opened and the respondent (DW1) gave evidence. Counsel submitted that the measure of how independent and impartial a court is can be determined by the readiness, willingness and capacity of that court to ensure that all parties before it are heard fairly.
After referring to the judgment of Ubaezonu JCA in the case of Obeta v. Okpe (1996) 9 NWLR (Part 473) page 401 at 440, counsel submitted that in closing the appellant’s case, the learned trial judge relied on Section 9(2) of the Practice Direction No. 1 of 2005. He said that the Practice Direction cannot override the express provisions of Section 33 (sic) 36 of the Constitution of the Federal Republic of Nigeria 1999.
There is no doubt, said counsel, that the appellant had called two(2) witnesses, including himself PW1 in proof of his case and had wanted to call more witnesses, the trial court had denied him fair hearing.
Counsel submitted that the standard of fair hearing required the observance of the twin pillars of the rule of natural justice. That, a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses. He referred to the case of Anyakora v. Obiakor (2005) 5 NWLR Part 919) page 507 at pages 532 – 533.
Counsel submitted that the premature closure of the appellant’s case by the learned trial judge without allowing the appellant to call more witnesses has not only occasioned denial of fair hearing to the appellant but has also occasioned great miscarriage of justice to the appellant.
Learned counsel for the Respondent, on the other hand submitted that the concept of fair hearing presupposes that every person be given the opportunity to confirm or contradict any allegation against him. Thus, the courts are expected to hear from both sides except the other party through deliberate action of his abstains himself from such proceedings.
However, said counsel, it is a common saying that justice delayed is justice denied.
The question that arises in this appeal, said counsel is whether the appellant was given fair hearing within a reasonable time? He submitted that a party should be given fair hearing does not mean such a party should exploit the judicial process in such a way and manner to delay the machinery of Justice. This he said is possible where a litigant refuses to prosecute his case diligently.
Respondent’s counsel submitted that the present case was instituted in 2000 by the appellant. That, it was only in 2005 that the appellant and his witness testified. The Appellant, he said have been using all means to frustrate the progress of the case. That the case was earlier struck out for lack of diligent prosecution.
He submitted that on 16/2/06, the appellant could not proceed with their case, the trial judge in the circumstances did what was proper by closing the case of the appellant. It is noteworthy said counsel, that the defendant/respondent was in court and ready to proceed with the case. Justice he said is a two way thing, both for the appellant and respondent.
Learned counsel for the Respondent urged us to hold that the failure of the appellant to assess the opportunity given to him within a reasonable time is a serious indictment on the appellant and that the closure of the appellant’s case is not a breach of fair hearing occasioning a miscarriage of justice.
Counsel submitted that the court relied on Section 9(2) of the practice Direction No. 1 of 2005 does not mean that the court erroneously over rode the provision of the constitution. Practice Directions are meant to guide the courts in the administration of justice. They complement the statutes and rules of court.
That in the instant case, the appellant had not complied with Section 36(1) of the 1999 constitution by utilizing the machinery of the law court within a reasonable time, the recourse to the practice Direction is an additional ground on which the court closed the case of the appellant.
Counsel referred to the case of H.R.H. Eze Dr. Frank Adele Eke v. M. Godfrey Chizieze Ogbonda (2007) 1 M.J.S.C. page 160 at page 162.
In deciding Appellant’s Issue No. 3, it is appropriate to refer to the relevant proceedings of 16/2/06 as it concerns the question of fair hearing as contained at page 70 of the record. After the cross-examination of P.W.2 the record of court reads as follows:
“Onuorah: That is all for the witness.
Okoye: No re-examination.
Court: Call your next witness.
Okoye: Our witness is not in court.
Court: This case had been struck out for non prosecution by the plaintiff and later relisted. Today again, the plaintiff is not ready to go on despite the call by the court to go on with the case. By virtue of section 9(2) of the Practice Direction No. 1 of 2005, I close the case of the plaintiff and call on the defendant to go ahead and open his case.
Onuorah: We seek to call the defendant to testify.
Court: Go on”.
From the above scenario, contrary to the contention of the learned counsel for the Appellant, there was never an application for adjournment. Even if there was such an application, not recorded by the court nothing would have stopped the learned counsel for the Appellant from renewing such an application formerly, perhaps by way of a motion on notice before the end of the proceedings. Rather, counsel to the Plaintiff/Appellant participated actively all though the remaining proceedings without again ever raising the issue of his calling more witnesse(s). The proceedings of court continued until the Respondent called his four (4) witnesses, counsel furnished written addresses and judgment delivered.
In the circumstances of this case, I do not think it is either right or fair for the learned counsel to the Appellant to now come to this court to raise a non-existing breach of fair hearing.
There was no denial of fair hearing from the facts of this case. Rather, what I see here is an abuse of the concept of and the constitutional provisions relating to fair hearing.
The right to fair hearing entails not only hearing a party on any issue which could be resolved to his prejudice but also ensuring that, that is fair and in accordance with the twin pillars of justice, namely audi
alteram partem and nemo judex in causa suo.
See Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485.
Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 421.
Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 at 246.
The essential elements of fair hearing include easy access to court, the right to be heard, the impartiality of the adjudicating process, the principles of nemo judex in causa sua and whether there was inordinate delay in delivery judgment.
See Effiom v. State (1995) 1 NWLR (Pt 373) 507 at 575.
However, the right to fair hearing shall be within a reasonable time, as such, no court is allowed to wait for an indefinite period for a litigant to make up his mind, for example as in this case on whether or not to call witnesses.
See e.g. Dalyop v. Oradiegwu (2007) 8 NWLR (Pt.669) 421 at 434.
In the business of fair hearing, the duty of the court is to provide the access, the opportunity and the environment, the courts would not be blamed neither could the fair hearing provisions be successfully invoked if a litigant that has been given due access and opportunity to be heard failed to utilize same.
In the case of H.R.H. Eze Dr. Frank v. M. Godfrey Chizieze Ogbonda (supra) the Supreme Court had this to say at page 162.
“The duty of a court is to create the environment for fair hearing in an egalitarian manner for the benefit of the parties. A court of law cannot force parties to take advantage of the principles, once the court creates the environment, its duty stops and the parties are at liberty to take advantage of the environment created by the court. If the parties fail to take advantage of the environment created by the court, they cannot be heard on Appeal to complain that they were denied fair hearing. Such will be unfair to the judge who has placed the fair hearing principle at the door steps of the parties”
In the instant case, there is nothing on record to show that the appellant ever applied for an adjournment to call more witnesses after the examination of PW2. There is equally nothing on record to show that the learned counsel for the appellant ever expressed an intention to the court below throughout the proceedings that he indeed intended to call further witnesses. The appellant in this case participated in the proceedings of the court below after the event of 16/2/06 without raising an eyelid. The appellant failed to utilize the opportunity of a fair trial given to him by the learned trial judge. The appellant cannot now be heard to complain of denial of fair hearing. Issue No. 3 is resolved against the Appellant.
On Issue No. 1, learned counsel for the Appellant submitted that the gravamen of the appellant’s complaint is that the learned trial judge preferred the evidence of the D.W.2, Nwokafor Nzekwe, on the basis that the said Nwokafor Nzekwe is a direct son of Nzekwe Dibor Okoye who the Appellant claimed was the husband of Onuigbo the Respondent’s mother. That the learned trial judge also erroneously stated that apart from the mere assertion of the Appellant, he did not lead any evidence to prove his assertion that Ozoemene Okoye married only two (2) wives.
Counsel submitted that in paragraph 6 of the Statement of Claim, the Appellant pleaded thus:
“The Plaintiff states further that his father, Ozo Ozoemene Dibor married the following wives to wit: Oyibo (Plaintiffs mother) and Okwelu. Onuigbo is not one of the wives of the plaintiff’s father. The defendant’s mother was never one of the wives of Ozo Ozoemene Dibor and was never remarried by the said Ozo Ozoemene Dibor on the death of Nzekwe Dibor (the defendant’s father)” (Record page 13)”.
In the evidence before the trial court, counsel said, the Appellant told the court that Ozoemene Dibor had two wives and that they are Ojiefi Oyibo Ozoemene and Okwelu Ozoemene and that Ojiefi Oyibo Ozoemene was his mother. That, Onuigbo Nzekwe, the mother of the respondent, was not one of the wives of his father, Ozoemene Dibor. That, the appellant stated further that when Nzekwe Dibor died, the respondent’s mother packed her things and went back to her maiden place in Anam and that she never returned again and that the remains of Onuigbo was not brought back to Awka for burial (Record, page 50).
The PW2, said counsel, gave evidence along the same line and told the trial court that Nzekwe Dibor (respondent’s father) married in his lifetime and that he knew the names of the wives of Nzekwe Dibor and that they were Nweruaka Nzekwe, Nnechi Nzekwe, Ekemma Nzekwe, Oyidi Nzekwe and Onuigbo Nzekwe (respondent’s mother) That he PW2 stated further that the husband of Onuigbo Nzekwe is Nzekwe Dibor Okoye. Counsel submitted that PW2 also stated that the appellant’s father married two (wives) to wit:- Oyibo Ozoemene Dibor Okoye and Okwelu Ozoemene Dibor Okoye. Also, that Onuigbo Nzekwe had an issue for husband, Nzekwe Dibor Okoye and that the said issue is respondent.
Counsel submitted that the evidence of the appellant on the number of wives Ozoemene Okoye or the appellant’s father married is not and cannot be mere assertion. That the appellant led concrete evidence to prove his pleadings in paragraph 6 of his statement of claim to the effect that his father married two (2) wives. That, the appellant’s evidence was controverted by PW2.
Counsel submitted that not only DW2 but also PW2 is related to the parties. That in contrast to the appellant’s evidence, DW2 told the court that he was around when Ozo Ozoemene (the appellant’s father) married Onuigbo (the respondent’s mother) and that the said Ozo Ozoemene married Onuigbo in accordance with Awka custom and tradition.
However, said counsel, DW2 witnessed at cross-examination that Onuigbo is from Umuoba Anam.
Counsel submitted that if Onuigbo was from Umuoba Anam, she could not have been married under Awka custom but rather under Umuoba Anam custom her maiden place.
On issue No. 1, learned counsel for the Respondent submitted that the court preferred the evidence of DW2 Nwokafor Nzekwe to the testimony of the Appellant. The Appellant and PW2 were not present during their father’s marriage to his wives, while the DW2 was an eye witness to the said marriage and his evidence was unchallenged. The evidence of the appellant about the marriage is hearsay and unreliable.
He referred to Section 77 of the Evidence Act Cap. 112 LFN 1990 (now Section 37 and 38 Evidence Act 2011).
Furthermore, said counsel, the Respondent called DW2, Nwokafor Nzekwe who is a direct son of Nzekwe Dibor Okoye, who the Appellant claimed was the husband of Onuigbo the Respondent’s mother. The said DW2 asserted that his father Nzekwe Dibor Okoye is not the father of the Respondent and that the Respondent is not his brother.
That at page 85 of the record, under cross-examination, DW2 told the court as follows:
Q. Did you accompany Ozoemene to marry Onuigbo at Umuobu Anam?
A. I was already living at Anam and I followed him to the marriage”.
Counsel submitted that the trial judge was right to have preferred the evidence of DW2 to that of the Appellant’s witness. Firstly, he said, if Nzekwe Dibor Okoye DW2’S father was also the father of the defendant, this witness would certainly be aware; as a son of Nzekwe Dibor Okoye who was alleged to be the husband to Onuigbo (Respondent’s mother).
DW2 is in a better position than anyone else to know who his brothers and father’s wives were.
Furthermore, said counsel, DW2 is a direct witness to the marriage ceremony between Ozo Ozoemene Okoye and Onuigbo and also stated that Ozo Ozoemene Okoye married four wives.
Counsel also made reference to the evidence of DW3, Emmanuel Nwandibe Ozoemene who is a half brother to the parties in this case.
He testified that his mother is Unaku the third wife of Ozo Ozoemene Okoye and that his father married four wives. The appellant did not challenge or dispute the evidence of DW3 which makes it acceptable to the court. It is trite law, said counsel, that evidence not challenged is assumed admitted.
Counsel referred to the provision of Section 75 of the Evidence Act cap. 112 LFN 1990 (now Section 123 Evidence Act 2011).
In deciding Appellant’s Issue No. 1, it is obvious that the complaint of the Appellant that the learned trial judge regarded the evidence of the appellant on the number of wives of Ozoemene Okoye, had as ”mere assertion” was not justified. Indeed, in contradiction to the evidence of the Respondent on the issue, the learned trial judge was justified to have termed the evidence of the appellant “mere assertion” in other words that which does not prove the issue asserted or intended to be proved.
First, it is settled law that he who asserts must prove. See section 133 Evidence Act 2011. The onus is on the plaintiff to prove his case on the balance of probabilities.
See Sections 132 and 134 of the Evidence Act 2011.
Thus, the Appellant was expected to lead cogent and credible evidence in support of his case. He can only rely on the strength of his own case. See Benneth Ude Agu v. Makwue Nnadi (2002) 12 NSCOR page 128 at page 130. In the instant case, not only was it the case that the Appellant was not able to prove by credible evidence his assertion that Ozoemene Okoye married only two wives and that he was never married to Onuigbo, the Respondent’s mother the testimony of the Respondent’s witnesses especially DW2 and DW3 established not only the marriage between Ozoemene Okoye and Onuigbo but also confirmed that Ozoemene Okoye had four and not two wives. The trial court has a duty to evaluate evidence presented before it and place such on an imaginary scale. In other words, it is expected to choose which of the cases presented by the parties is mere credible. This is because, the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial.
See Fashanu v. Adekoya (1974) 6 S.C. 83; Woluchem v. Gudi (1981) 5 SC 291; Oke v. Eke (1982) 12 SC 218 and Gbadamosi v. Governor Oyo State (2006) 13 NWLR (Pt.997) 363 at 374.
In the instant case, the trial court, after a considered evaluation of the evidence before it found the case of the Respondent more credible.
In such a situation, an appellate court would ordinarily refuse to interfere with findings of facts of a trial court unless such finding is perverse. This is because the trial court has the opportunity to assess the demeanor of witnesses with a view to ascertaining their credibility.
In the case of Gabriel Iwuocha and Another v. Nigeria Postal Services Limited & Anor. (2003) 14 NSCQR page 253 at page 257, the Supreme Court held that the Appeal Court has no business interfering with the finding of fact by the trial court unless such finding is perverse. See also Chedi v. A.G. Federation (2006) 13 NWLR (Pt. 997) 308 at 325:
Balogun v. Agboola (1974) 1 ALL NLR (Pt.2) 66;
Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) 718;
Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610;
Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1;
Ebba v. Ogodo (1984) 1 SCNLR 372;
Alhaji S.A. Kazeem & Anor v. Madam Wemimo Mosaku & 2 Ors. (2007) 17 NWLR (Pt.1064) 523 at 545 – 546.
In the instant case, the Respondent has not shown that the finding of the learned trial judge on the credibility of witnesses is perverse, manifestly unreasonable or that it could be otherwise faulted on the ground that it failed to make proper use of its singular opportunity of seeing and hearing witnesses, an appellate court can not therefore intervene to set aside the resultant findings.
Issue No. 1 is also resolved against the Appellant.
On Issue No. 2, learned counsel for the Appellant referred to paragraph 11 of his Statement of Claim that:
“The Plaintiff states that after the death of the defendant’s father, Nzekwe Dibor, the defendant’s mother was impregnated by one Nwabunne Nwakalor of Umubele village Awka. Onuigbo Nzekwe the defendant’s mother as a result of this pregnancy from an Umubele man was despised by the Okoye Enyelu family who did not see the reason why Onuigbo Nzekwe should go outside the family to get an issue when there are capable men in Okoye Enyelu family. As a result of this, Onuigbo left for her maiden home, Anam with the pregnancy. She gave birth to the defendant at Anam but the plaintiff’s father later in his magnanimous disposition went to Anam and brought back the defendant and started taking care of him”
Counsel submitted that the Respondent in paragraph 15 of Statement of Defence merely stated that Ozo Ozoemene was his biological father. That the appellant and PW2 gave evidence along the line of the appellant’s pleadings to the effect that one Nwabunne Nwakalor from Umubele village, Awka was responsible for the respondent’s pregnancy.
Counsel further submitted that the important evidence about who is responsible for the pregnancy of the respondent or who was the biological father of the respondent was not challenged by the respondent under cross-examination.
Counsel submitted that in respect of the evidence of the appellant on this issue, the respondent merely extracted further explanation from the appellant on the issue as follows:-
“Q. Do you know Nwabunne Nwakalor from Umubele village?
A. I know him.
Q. How do you know him?
A. He is responsible for the pregnancy of the defendant.
Q. Is Nwabunne a member of Okoye Enyelu’s family?
A. He is not a member of Okoye Enyelu’s family.
Q. Can you explain how Nwabunne Nwakalor is responsible for the pregnancy of the defendant?
A. When the defendant’s mother got pregnant, the members of Okoye Enyelu’s family summoned a meeting and called the defendant’s mother to explain who was responsible for the pregnancy, she mentioned Nwabunne Nwakalor.
Counsel submitted that the PW2 who confirmed the evidence of the appellant was not also seriously cross-examined. Also, that the cross-examination of PW2 never challenged the evidence of PW2 on the vital issue of how the respondent was born or who was responsible for the birth of the respondent.
He submitted that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. It follows therefore that it is improper for a party not to cross examine the other party’s witness on a material point and to call evidence on the matter after the party calling witness had closed his case.
Counsel referred to the case of Nigeria Customs Service & Anor. v. Sunday Osaro Bazuayeu (2006) 3 NWLR (Part 967) page 303 and submitted further that the said evidence on the issue of the respondent’s birth was unchallenged and the court is not only entitled to act on or accept such evidence but in fact bound to do so provided that such evidence by its very nature is not incredible.
He referred to the case of Patrick Oforlete v. The State (2000) 12 NWLR (Part 681) page 415.
He urged that issue No. 2 be answered in the negative. Learned counsel for the Respondent on the other hand submitted that the appellant and PW2 gave evidence to the effect that respondent’s mother was impregnated by Nwabunne Nwakalor. That apart form this assertion, no other evidence was led to prove the claim.
In contrast, said counsel, respondent denied being the son of Nzekwe Dibor Okoye. That DW2 under cross-examination answered thus:
Q. After your father’s death, Onuigbo was impregnated by a man outside the Okoye Enyelu family.
A. I do not know about it, and I did not hear. Let the lawyer call the name of the man that impregnated her.
Q. His name is Nwabunne Nwakalor from Umubele village.
A. I am hearing for the 1st time, I don’t know.
The answer, counsel said was a clear denial of the assertion that Onuigbo, respondent’s mother was impregnated by one Nwabunne Nwakalor.
Learned counsel for the Respondent further submitted that it is not disputed by the appellant that DW3, Emmanuel Nwandibe Ozoemene is a half brother to the appellant and respondent. That, nowhere either in his pleadings or testimonies in court did the appellant dispute that DW3 is his brother.
Counsel referred to the provision of Section 75 of the Evidence Act Cap 112 LFN 1990 (now Section 123 Evidence Act 2011) and submitted that it is trite that evidence not challenged is deemed admitted.
Counsel submitted that DW3 in his evidence stated that the respondent is their eldest brother (the Diokpala) of the family. He stated that the respondent’s mother is Onuigbo, wife to Ozo Ozoemene Okoye and his own mother is Unaku the third wife to Ozo Ozoemene Okoye.
That under cross-examination, DW3 stated thus:
Q. Tell the court the name of the defendant’s mother.
A. Onuigbo Ozoemene (pages 93 – 94 of the record).
Counsel argued that the testimony of DW2 (sic) DW3 was not anytime shaken under cross-examination which makes it acceptable to the court. He submitted that the claim of the appellant that the respondent’s mother was impregnated by one Nwabunne Nwakalor has no basis in law or fact. The preponderance of evidence weighs in favour of the respondent.
I find it somewhat difficult to understand the complaint of the Appellant in relation to Issue No. 2. The Appellant alleged that Onuigbo, the respondent’s mother was pregnated by one Nwabunne Nwakalor and it was the pregnancy that led to the birth of the respondent. The respondent denied this. The only evidence offered by the Appellant in respect of this allegation was that members of the Okoye Enyelu’s family summoned a meeting and when Onuigbo was asked to explain, she said it was Nwabunne Nwakalor that pregnated her. Now, neither PW1 nor PW2 was said to be present at such a meeting, Onuigbo herself who died a long time before the proceedings could not have been called to testify. The evidence of the Appellant’s witnesses on the issue of Nwabunne having pregnated Onuigbo straddles in between opinion and hearsay evidence, both of which are generally inadmissible under the Evidence Act.
In contrast to this was the denial by the respondent that he never heard of any Nwabunne Nwakalor and the uncontradicted and unchallenged evidence of DW3 that the respondent is his half brother, both of them being children of Ozoemene Okoye.
It seems to me in this respect that if the learned counsel for the Appellant would not understand that the state and/or circumstances of a woman’s pregnancy is as hidden as the state of digestion, he would at least understand that hearsay and opinion evidence are generally inadmissible under the Evidence Act. See Sections 37, 38 and 67 of the Evidence Act 2011.
The contention of the learned counsel for the Appellant that the Appellant’s witnesses were not seriously cross-examined on the issue of Nwabunne having pregnated Onuigbo before calling evidence in rebuttal and thereby deemed to have admitted same does not represent the law.
The purpose of cross-examination is to test the veracity and shake the credibility of a witness. If a witness gives evidence that is logically improbable or legally inadmissible, the other party may not have to cross-examine such a witness before calling rebuttal evidence if at all. The same situation applies to an admission that has no foundation in law and in fact.
In order words, a party cannot be held to have admitted a fact which is impossible, or has no legal basis.
See Odutola v. Paper Sack Nigeria Limited (2006) 18 NWLR (Pt.1012) 470 per Niki Tobi JSC.
In the instant case, the learned trial judge was right to have preferred and accepted the evidence of DW2 and DW3 Onuigbo gave birth to respondent as the first son (diokpala) Ozo Ozoemene Okoye. Issue No. 2 is resolved against Appellant.
On Issue No. 4, learned counsel for the Appellant made reference to paragraph 17 of their Statement of Claim and said that the Appellant gave evidence in proof of possession of the compound in dispute at page 54 of the record as follows:
“I remember 1975. In 1975, the defendant approached me and appealed to me to allow him put up a bungalow of three rooms and parlour to accommodate him and his family. Without any agitation, I accepted the plea. Later I did not know that the defendant will use the chance I gave him to fight for inheritance of my father’s property”.
The above evidence by the appellant, said counsel was not challenged. The implication he said, of the non-challenge of the evidence is that it is accepted by the respondent. The respondent, counsel said, ought to have challenged the said piece of evidence by cross-examining the appellant on the point in issue and should not wait until the time for his defence to call evidence to debunk.
On this, counsel referred to the cases of Nigeria Custom Service & Anor v. Sunday Osaro Bazuave (supra) and Patrick Oforlete v. The State (supra).
Counsel submitted further that by proving this unchallenged and undisturbed act of possession, the appellant has proved one of the five (5) ways of proving title of ownership of land as enunciated in the cases of Idundun v. Okumagba (1976) 9-10 SC page 227. Piaro v. Tenalo & Anor, (1976) 1 FNR page 229 and a host of other authorities.
He argued that if the respondent is the first son or “diokpala” as he claimed to be, he wouldn’t have taken permission from the appellant before putting up his bungalow.
Counsel submitted that in support of the above act of possession of the land in dispute, the appellant has also shown that on the death of his father, even though he was not present when his father died, he was handed over the “Ofo na alo” as well as the sum of #250 pounds (Two hundred and fifty pounds). The “Ofo na alo” counsel said was handed over to him by Anayo Okoye, his uncle, while the said money was handed over to him by Nwokoye Onuorah, his father’s business partner.
Learned counsel for the Appellant also pointed out that the evidence of PW2 supported that of the Appellant, because PW2 said he was present when the “Ofo na alo” was handed over to the Appellant.
In contrast, Appellant’s counsel submitted that there were contradictions in between the evidence of DW2 and DW3 on whether or not Charles Chinwuko was present when “Ofo na alo” was handed over to the Respondent.
He urged us to answer Issue No. 4 in the negative.
Learned counsel for the Respondent, on the other hand said that Issue No. 4 raises the question of which of the parties proved his entitlement to the ownership, of the land or compound in dispute which is anchored on the claim of being the first son or “diokpala” in accordance with Awka customs and tradition.
It is an accepted fact, said counse; that the respondent is older than the appellant. That, the appellant pleaded and gave evidence that Okoye Enyelu family arbitrated over the matter and decided that the appellant is the “diokpala” of Ozo Ozoemene Okoye but could not produce the decision. That not even Pw2 who stated that he is the secretary of the Okoye Enyelu family could produce the decision or minutes book of the said meeting.
Counsel submitted that the respondent on the other hand pleaded two decisions of the Umuamuka family and the daughters of Ozo Ozoemene Okoye. Exhibit ‘B’ and ‘C’ to support his claim that he is the ‘diokpala’ of Ozo Ozoemene Okoye family.
Counsel submitted that the makers of Exhbiit ‘C’ the daughters of Ozo Ozoemene Okoye recognize the respondent as their eldest brother. The trial court was right to attach evidential weight to Exhibit ‘C’ and come to the conclusion that the respondent is the first son of Ozo Ozoemene Okoye.
Counsel argued further that the appellant will allow the respondent to build in appellant’s inherited Ngwulu having known his father to be Nzekwe Dibor Okoye is improbable.
That it is rather absurd that the appellant did not ask the respondent to go over to Nzekwe’s family to get his inheritance assuming that it is true according to appellant’s contention that his father did not marry Onuigbo, respondent’s mother.
Also according to Respondent’s counsel, DW3 Emmanuel Ndibe Ozoemene gave evidence that the respondent gave ana obu (homestead) to him, in exercise of the functions of “diokpala” or first son and also to the appellant and one Okechukwu Ozoemene, who are all brothers of the same father. That it is not in dispute that DW3 is a direct son of Ozo Ozoemene Okoye the father of the appellant.
The question said counsel, is in what capacity did the respondent allot ana obu (homestead) to person who are sons of Ozo Ozoemene Okoye if he is not the “diokpala” of the family.
Counsel submitted that it is not in doubt that the respondent has been in effective possession of the compound as the “diokpala” by living there and even allotting same to his younger brothers who are not disputing the land with him except for the appellant.
Counsel noted that the ‘Ofo na alo’ was handed over to the respondent as he was in fact present when his father died and was buried.
He concluded that the preponderance of evidence weighs heavily in favour of the respondent in the suit.
In deciding Issue No. 4, I think the learned trial judge was right in the light of conflicting evidence in between the parties on who the ‘Ofo na alo’ was presented to, to have refused to act on the evidence of either of the parties on the presentation of the ‘Ofo na alo’ on the ground that none of the parties tendered his ‘Ofo na alo’ in evidence.
The ‘Ofo na alo’ is a symbol of authority and could have been evidence of who amongst the parties secured the symbol of authority of inheritance of the disputed compound. But, the authority of the ‘Ofo na alo’ became trivialized by conflicting evidence of the parties. The learned trial judge threaded on firmer grounds by relying on Exhibit ‘C’ and the unchallenged evidence of DW3, equally an undisputed son of Ozo Ozoemene Okoye to come to the conclusion that the respondent is the ‘diokpala’ of the said Ozo Ozoemene Okoye.
Interestingly, even the learned trial judge realized that it is most improbable that the appellant will allow the respondent to build in appellant’s inherited ngwulu having known his father to be Nzekwe Dibor Okoye.
At page ll4 “It is therefore a wonder, why the plaintiff did not ask the defendant to go over to Nzekwe’s family and get his own inheritance. This is because if it is as the plaintiff contended, that his father did not marry Onuigbo but that he brought the defend ant from Anam on compassionate ground, then the defendant belongs to Nzekwe family like DW2”
Truly, the preponderance of evidence weighs in favour of the respondent. Neither the reasoning nor the conclusion of the learned trial judge can be faulted.
Issue No. 4 is resolved against the appellant.
Having resolved the four (4) issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed. N30,000.00 costs is awarded to the respondent as against the appellant.
ISAIAH OLUFEMI AKEJU, J.C.A: I had the opportunity of reading in its draft form, the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE JCA. I am in total agreement with the resolution of all the issues in the appeal as well as the conclusion that the appeal is devoid of merit. I too dismiss the appeal with costs as awarded by my learned brother.
EMMANUEL AKOMAYE AGIM J.C.A: I had read the draft of the Judgment delivered by my learned brother MOJEED ADEKUNLE OWOADE JCA. I agree with the reasoning and conclusions in the Judgment. I agree that the appeal lacks merit. I too dismiss the appeal and abide by the consequential orders including the award of costs.
Appearances
Emeka NwankwoFor Appellant
AND
Doris UdensiFor Respondent
