CHIEF COURT NABIRA AWANEN V. BELMENE NTAOH (2011)

CHIEF COURT NABIRA AWANEN V. BELMENE NTAOH

(2011)LCN/4632(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of June, 2011

CA/PH/177/2010

RATIO

ESTOPPEL BY CONDUCT: THE PRINCIPLE OF ESTOPPEL BY CONDUCT

The principle of estoppel by conduct codified in section 151 of the Evidence Act is as follows- 151. when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing. PER EJEMBI EKO, J.C.A.

LACHES: DEFINITION OF THE TERM OF “LACHES”

Laches, as I.M.M. Saulawa, JCA., puts it in Chukwu v. Amadi (2009) 3 NWLR (Pt.1127) 56, is a term denoting an equitable principle, whereby a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, where granting of such relief would be unfair or unjust. See also BLACK’S LAW DICTIONARY. Thus the supreme court per Belgore JSC (as he then was) in OLUFEMI FASESIN v. DR. JOSHUA P.O. OYERINDE (1997) 54 LRCN 2692 had stated that the laws will aid the only those who are watchful and not those who go to sleep. Still in the same decision the learned jurist had stated- It is true much discretion is required in declaratory judgment. In itself discretion is part of equity and must be granted judiciously having regard to the facts and equity of the case. All declaratory reliefs must be granted on a thorough consideration of all the facts, including defence and objections advanced by the parties. But where the hard facts are uncontroverted, the appellant (plaintiff) has no equity on his side and has behaved recklessly the court will be on the side of the truth and law in support of the case. PER EJEMBI EKO, J.C.A.

DUTY OF THE TRIAL JUDGE: DUTY OF THE TRIAL JUDGE TO PROPERLY EVALUATE THE TOTALITY OF THE EVIDENCE BEFORE HIM IN HIS JUDGMENT

In issues 1, which is the last issue I will consider in this appeal, the Appellant complains that the learned trial judge did not properly evaluate the totality of the evidence before him in his judgment. Appellant submits, and correctly too, on the authority of KAYODE VENTURES LTD. V. MINISTER, FCT (2010) 7 NWLR (Pt.1192) 171 that it is the duty of the trial judge to put the totality of the admissible evidence of the parties in the case on an imaginary scale, evaluate and weigh it to see on which side the evidence on a particular issue preponderates. PER EJEMBI EKO, J.C.A.

UNCHALLENGED JUDGMENT: EFFECT OF AN UNCHALLENGED FINDING OR PORTION OF JUDGMENT

Since they were neither challenged nor attacked either in the Notice of appeal or in the appellant’s brief they are taken as admitted and acceptable to the appellant. That finding or portion of judgment persists and remains binding on the appellant, whether right or wrong, until set aside. See AGUSIOBI v. OKAGBUE (2001) 15 NWLR (Pt. 737) 502; AG.F v. AIC LTD (2010) 10 NWLR (Pt. 675) 295. A judicial act, which has been done in a manner substantially regular, is presumed to be valid under section 150(1) of Evidence Act. PER EJEMBI EKO, J.C.A.

INCONSISTENT EVIDENCE: DUTY OF THE COURT WHERE ARE TWO MATERIALLY INCONSISTENT EVIDENCE

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

CHIEF COURT NABIRA AWANEN
(For himself and as representing the
Gbere Kaboo family of Kpor Gokana) Appellant(s)

AND

BELMENE NTAOH Respondent(s)

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment):  In the judgment delivered on 9th February, 2010 IN THE Suit No. BHC/7/2010 Roland I. Akiakwo, J. of Rivers State High Court dismissed the suit of the Appellant, as the claimant’ in its entirety for lacking in merits. This appeal is against that judgment. The appellant, in this appeal, is praying that the said judgment be set aside and in its place that judgment be entered in his favour by declaring him the paramount ruler of Kpor Community in Gokana Local Government Area of Rivers State.
In the suit at the court below the appellant, as the Claimant, claimed as follows:-
1. A declaration that under Gokana Native Law and Custom as applicable to kpor in Gokana it is the Family of Gbere Kaboo and or Descendants thereof that is entitled to the Chieftaincy stool of Menebon Kpor (paramount Ruler of Kpor) and that any ascension to the stool outside the Gbere Kaboo Family is unlawful, illegal, null and void and of no effect whatsoever.
2. A declaration that the 1st Defendant Belemene Ntaoh is not under Gokana Native Law and Custom as applicable to Kpor Gokana a member and or descendant of Gbere Kaboo and thus not entitled to the Chieftaincy Stool of Menebon Kpor (paramount Ruler of Kpor)
3. A Declaration that the plaintiff being a member of the Gbere Kaboo Family and or descendant thereof is entitled under Gokana Native Law and custom to the chieftaincy Stool of Menebon Kpor (paramount Ruler of Kpor) and that his installation thereof was proper.
4. An order of perpetual injunction restraining the 1st Defendant whether by himself, servants or agents from carrying out parading and or representing and or in any manner whatsoever continuing to parade and or represent himself to anybody whatsoever as the Menebon Kpor (Paramount ruler of Kpor) and or discharging or continuing to discharge the duties of the said office and or enjoy the privileges and or appurtenances of the said stool of Menebon Kpor.
5. An Order of perpetual injunction restraining the 2nd – 4th Defendants whether by themselves, servants and or agents from recognizing and or representing and or continuing to recognze and or represent the 1st Defendant to themselves and or any other persons whatsoever whether in Kpor or otherwise or generally according the 1st Defendant recognition in any manner whatsoever as Menebon Kpor or parading him as such.
6. An Order of this Honourable court directing the 1st Defendant to file into the Registry of this Honourable court for the proper examination of the court a full and comprehensive account of all monies and or funds or property received by the 1st Defendant for and or on behalf of Kpor Community, Gokana and an order of Court directing the 1st Defendant to pay such sum as the  Court shall consider necessary to the Kpor community.
The parties exchanged pleadings at the court below. The summary of the Appellant’s case is that his ancestor, Gbere Kaboo, was the founder of Kpor community and the disputed chieftaincy stool, being allegedly the first paramount ruler, the MENEBON Kpor. The appellant in the further amended statement of claim posited that upon the death of Gbere Kaboo his sons or descendants ruled Kpor and that this continued until his own biological father, Gbere Naabiradee Awanen, who died in October 1960. Appellant averred that when his father died in 1960 he had not come of age and one Chief Nkpee Baabel, who was the deputy paramount ruler to his father, started performing the duties of the paramount ruler, and that it was at this time that the father of the Respondent, the defendant, usurped the office of the paramount ruler of Kpor and started parading himself as the paramount ruler of Kpor. He gave the name of 1st Respondent’s father as Chief Mbari Ntaoh whom the Appellant alleged was appointed as a Town-Crier by his father. It appears from the further Amended Statement of Claim that on 16th January, 2000 the appellant was purportedly installed as the Menebon of Kpor. He promptly took out the writ of summons on 20th January, 2000.
From paragraphs 11, 12 and 13 of the further Amended Statement of Claim the 1st Respondent’s father, his uncle and the 1st Respondent himself between 1960 and 2000, when the suit was taken out, had established themselves on the throne of the Menebon Kpor, uninterrupted. The Appellant had averred therein that Chief Mbari Ntaoh usurped the office of Mengbon Nkpor in 1960 after the death of the Appellant’s father and that after the death of Chief Mbari Ntaoh, his own brother, succeeded him. In the amended statement of defence the name of the said brother of the said Chief Mbari Ntaoh who succeeded him was given as Bilalo Ntaoh. Of Bilalo Ntaoh, the Further Amended Statement of claim alleged that he “continued to usurp the paramount Chieftaincy stool” and that after him the 1st Defendant/Respondent subsequently succeeded him “without any mandate – to act as such”.
It is the case of the Appellant, as the claimant, that it is the native law and custom of Gokana that nobody can be crowned or installed as the Menebon kpor unless he is from the royal family.
The totality of the Further Amended Statement of claim is that since 1960, and by virtue of their usurpation of the office of Menebon Kpor the family of the 1st Defendant/Respondent, contrary to the customary law of Gokana, had persistently been occupying the stool of Menebon kpor. One Chief Nkpor Baabel who, allegedly, was the deputy paramount Ruler to the appellants’ father and who acted as paramount Ruler upon the death of Appellant’s father in 1960, and whose office the 1st Respondent’s father allegedly usurped in 1960 did not complain. No other person complained or challenged the usurpation of the office by 1st Respondent’s family from 1960 until 2000 when the 1st Respondent was in that office. The reason advanced by the Appellant for this is that he “had not come of age.” The immediate cause of action seems to be the matters averred in paragraphs 20, 21, and 22 of the Further Amended Statement of claim. That is there were complaints by the Youths that several sums of money were allegedly paid to the Respondent for the community which the Respondent is alleged to have refused to render account of on demand by the Youths led by the Appellant.
The learned trial Judge after the evidence of the parties and consideration of the final submission of counsel dismissed the appellant’s suit in its entirety. Hence this appeal. At pages 228 – 229 of the Record the learned trial Judge, after summarizing arguments of counsel, had re-stated the principles of burden of proof on the Appellant, as the plaintiff thus:-
Now, I must say without equivocation that a claimant in actions for declaration of right to occupy a Chieftaincy Stool under native law and custom, like in the present case, bears a heavy evidential burden. The claimant must establish the origin of the Chieftaincy Stool the Claimant’s interest in the Chieftaincy Stool, and how it devolved on the Claimant. The Court of Appeal has held in BAMISILE v. OSASUJI & ORS that the first two items establish the standing in the matter. The purpose of the third is to establish the substantive Claim. This burden must be discharged on the strength of the claimant’s based on credible evidence, and not on the weakness of the defendant’s case. That was the decision of the Supreme Court in ALAO v. AKANO & ORS. The Claimant claimed at the trial court that he was entitled to occupy the position of Baale or village head of Oke-Oyi in Kwara State. At the Supreme Court the issue was whether the appellant established his claim.
This statement did not go down well with the appellant. He made a serious issue of it in the appeal. On the whole the Appellant filed 7 grounds of Appeal, out of which he formulated 3 issues for determination in the Appellant’s Brief of Argument settled by Chief A.N. Nafo of counsel
The Respondent’s Brief filed on 6th July, 2010 was settled by J.T. Kpakol, Esq of counsel. Like the Appellant the Respondent also formulated 3 issues from the 7 grounds of appeal. The issues are not all that dissimilar. The appellant’s 3 issues are as follows:-
1. whether the failure of the learned trial Judge to put the totality of the evidence adduced by the appellant and his witnesses as well as evidence elicited in his favour under cross-examination on the imaginary scale of justice for purposes of evaluation and weight does not amount to a breach of Appellant’s right to fair hearing, perverse finding and miscarriage of Justice.
2. whether the burden of proof in a chieftaincy matter is different from that required in other civil suit and whether the holding of the learned trial Judge that a claimant in actions for declaration of right to occupy a Chieftaincy Stool under native law and custom bears a heavy evidential burden does not occasion a miscarriage of justice.
3. whether the learned trial Judge was right when he suo motu raised the issues of laches and a acquiescence and apply the same to a chieftaincy dispute anchored on native law and custom and in circumstances which resulted in deprivation of fair hearing.
The more succinct issues formulated by the Respondent are more apt and direct to the points. They are:-
a. Whether the learned trial Judge properly evaluated the evidence of the Appellant and his witnesses.
b. Whether the holding of the learned trial Judge that a claimant in actions for declaration of right to occupy a chieftaincy Stool under native law and Custom bears a heavy evidential burden occasioned a miscarriage of justice.
c. Whether the learned trial Judge suo motu raised the issues of laches and acquiescence and estoppel and applied same to the issues in controversy.
The last issue accuses the learned trial Judge of raising the issues of laches and acquiescence suo motu in his judgment and applying them to a chieftaincy dispute anchored on native law and custom. The trial was conducted in the High Court of Rivers State. The parties exchanged pleadings at the trial. The rules or principles of Evidence Act are very much applicable in the trial court and they apply to all the parties and the cause of action. The principle of estoppel by conduct codified in section 151 of the Evidence Act is as follows-
151. when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing
Laches, as I.M.M. Saulawa, JCA., puts it in Chukwu v. Amadi (2009) 3 NWLR (Pt.1127) 56, is a term denoting an equitable principle, whereby a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, where granting of such relief would be unfair or unjust. See also BLACK’S LAW DICTIONARY. Thus the supreme court per Belgore JSC (as he then was) in OLUFEMI FASESIN v. DR. JOSHUA P.O. OYERINDE (1997) 54 LRCN 2692 had stated that the laws will aid the only those who are watchful and not those who go to sleep. Still in the same decision the learned jurist had stated-
It is true much discretion is required in declaratory judgment. In itself discretion is part of equity and must be granted judiciously having regard to the facts and equity of the case. All declaratory reliefs must be granted on a thorough consideration of all the facts, including defence and objections advanced by the parties. But where the hard facts are uncontroverted, the appellant (plaintiff) has no equity on his side and has behaved recklessly the court will be on the side of the truth and law in support of the case.
In the instant suit it does not lie in the mouth of the Appellant to say that the issue of laches, acquiescence and estoppel was raised suo motu and applied by the learned trial Judge. The amended Statement of defence, on which issues were duly joined, was woven round the issue of laches, acquiescence and estoppel. In paragraph 28 of the amended Statement of Defence the Respondent, as defendant, categorically pleaded “the doctrine of laches, acquiescence and estoppel”. He made this plea on the following facts contained in the same pleading. That is:-
1. In paragraph 10 of the Amended Statement of Defence that the fathers of the Appellant and Respondent submitted themselves to arbitration of the Gberemene. The appellant’s father in 1960 agreed to take oath to verify his assertion that he was more entitled to the office of Menebon of Kpor in the dispute over the same stool with the father of the Respondent. The appellant’s father subsequently took, ill, and “called the Gberemene of Gokana and conceded that the (Respondent’s) father was from the royal family and the rightful person to be the paramount Ruler of Kpor community”. The father of the Respondent was consequently installed in 1960 and he ruled from thence till 1976 without any challenge.
2. Upon the death of Respondent’s father, respondent’s elder brother, kiibe-Ata Mbari was installed as Menebon of kpor in 1976 and remained on the stool until his death in 1981. See paragraph 11 of amended Statement of Defence.
3. Respondent’s uncle, because the Respondent had not came of age, acted as regent from 1981 to 1989. See paragraph 12 of Amended Statement of Defence.
4. When the Respondent came of age he was installed as the Menbon of kpor on 9.12.1989 by the Gberemene of Gokana “with fanfare”. The appellant who allegedly “was there and later congratulated the (Respondent) and celebrated with the (Respondent).” See paragraphs 13 and 14 of the amended Statement of defence.
5. Paragraph 26 of Amended Statement of Defence specifically avers that the Appellant is “estopped from denying that the (Respondent) is not the paramount ruler of kpor, the (Appellant’s) father having accepted the judgment of Gberemene of Gokana in 1960.”
The undisputed facts of his case included the fact that the Respondent’s father, in the course of the dispute with the appellants’ father over the stool of Menebon of kpor, taking the latter before the Gberemene of Gokana, and the fact that oath was administered on Appellant’s father in 1960, the Appellant’s father subsequently confessing and conceding that the Respondent’s father was the right person entitled to the stool, and the Respondent’s father being installed as Menebon in 1960. Since 1960 the stool had been dominated exclusively by Respondent’s father, the brother and the sons. Since 1960 it was only on 20th January, 2000 that the appellant, as the claimant, having been (himself) allegedly installed as Menebon of kpor on 16th January, 2000, took out the writ to challenge the “Usurpation of the stool of Menebon” by the Respondent and his family since 1960.
I have read the Briefs of Argument exchanged. I have also read the Record of appeal. I do not agree with the appellant that the learned trial Judge suo motu raised the issue of laches, acquiescence and estoppel in his judgment. Of course, the appellant made the point that a court of law should not raise an issue suo motu in its judgment and decide the case on such issue. See AGBITI V. NIGERIAN NVY (2011) 4 NWLR (Pt.1236) 175 at 220; F.A.A.N. v. GREENSTONE LTD. (2009) 10 NWLR (Pt.1150) 624 at 632 ABDULKARIM V. ANAZODO (2006) 11 NWLR (Pt.991) 229 at 305. The rationale for this is that the judge or court should not enter the arena of dispute and take sides. Doing so is unconstitutional by dint of section 36(1) of the 1999 Constitution. The refrain or restraint is captured by the latin maxim of nemo judex in causa sua. That is how far I can, in principle, go with the Appellant.    Equity frowns at a party resuscitating a stale action. Every court of law and justice denies relief to a claimant who unreasonably delays in asserting his claim. Delay defeats equity. This principle applies to all causes or matters including causes or matters founded on customary law.
The issue is therefore resolved against the Appellant, and in favour of the Respondent. The defence of laches, acquiescence and estoppel was properly raised by the Respondent, as the defendant, and the appellant, as the claimant, duly joined issues on it. Accordingly, it is not correct to say that the learned trial judge raised it suo motu in the judgment and determined the suit on it.
The Learned trial judge in his judgment had stated at pages 228 – 229 of the record that a claimant for a declaration of the right to occupy a chieftaincy Stool under the native law and custom “bears a heavy evidential burden”. He was quick to explain what that means by particularizing what such a claimant has to prove as judicial authorities suggest. The claimant, like the present claimant, the learned trial judge stated relying on BAMISILE V. OSUJI & ORS. (2008) FWLR (Pt. 423) 1300, “must establish the origin of the Chieftaincy Stool, the claimant’s interest in the Chieftaincy Stool, and how it devolved on the claimant.” As this court explained in BAMISILE v. OSUJI case the claimant’s locus standi in the matter is established by his stating how the chieftaincy stool evolved and how his interest in the stool came to be. The claimant of course has to establish how the chieftaincy stool has devolved on him. He has to show that he is better qualified for the stool than his adversary. I have not seen how the restatement of these principles by the learned trial judge has occasioned any substantial miscarriage of justice. The Appellant has misconceived the principles when it is argued for him that these principles, as re-stated by the trial judge, has placed the standard of proof to a level of proof “beyond all reasonable doubt”. That is not correct.
I agree that the burden of proof in chieftaincy matter is not different from that required in any other civil suit. It is on balance probabilities or preponderance of evidence. The claimant discharges this burden in a declaratory action not on the weakness of the defence but on the strength of his own case, the pleadings and evidence inclusive. See ALL PINDER KWAJAFFA & ORS. V. BANK OF THE NORTH LTD. (2004) 13 NWLR (Pt. 889) 146 at 172; NDAYAKO V. DANTORO (2004) 13 NWLR (Pt.889) 187 at 214; ALAO V. AKANO & ORS (2005) 11 NWLR (Pt.935) 160.
The statement of the learned trial judge at pages 228 -229 that has come under severe criticism of the appellant has not in any way derogated the burden of proof under sections 135-  137 of the Evidence Act to wit :-
135. (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden or proof lies on that person.
136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading.
(2) if such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.
The learned trial judge, because of the peculiarity of chieftaincy dispute, has merely restated what facts the claimant for a declaration that he is more qualified or entitled to be on the stool than his adversary ought to prove to be entitled to such declaratory relief. I am in total agreement with the learned trial judge that such a claimant for a chieftaincy stool has to prove the origin of the chieftaincy stool and his interest in it. In addition he has to prove how the stool had devolved unto him. In most cases the proof is a combination of both traditional history and direct evidence of empirical facts. At the risk of repletion, the claimant for a chieftaincy stool is enjoined to prove the origin of the stool, how it devolved unto him (usually through claim of family right) and his locus standi in the dispute. He must prove that he was a candidate for the stool and a better one than his adversary.
I am satisfied that the statement of the law at pages 228 – 229 made by the learned trial judge has not in any way offended the law on the burden of proof. He has not imposed on the Appellant, as the claimant, more burden than the law requires in civil cases. This issue is accordingly resolved against the Appellant.
In issues 1, which is the last issue I will consider in this appeal, the Appellant complains that the learned trial judge did not properly evaluate the totality of the evidence before him in his judgment. Appellant submits, and correctly too, on the authority of KAYODE VENTURES LTD. V. MINISTER, FCT (2010) 7 NWLR (Pt.1192) 171 that it is the duty of the trial judge to put the totality of the admissible evidence of the parties in the case on an imaginary scale, evaluate and weigh it to see on which side the evidence on a particular issue preponderates. That the summary of evidence or re-statement of the evidence of the parties, as allegedly done by the learned trial judge in this case, does not constitutes proper evaluation.
The custom of Gokana people, applicable to Menebon stool of kpor, appellant says is that the stool is only available or exclusive to the founder of the kpor community and his descendants. This fact the respondent has admitted. Appellant further contends that Exhibit A – a book on Kpor Politics and Culture by Dr. N.B. Anokari, was tendered by him to further buttress the point that only descendants of the progenitor and founder of kpor community exclusively ascend the stool of Menebon of kpor. Exhibit A is credible appellant argues. And that if Exhibit A and the oral evidence of the Appellant had been properly evaluated the learned trial judge would have come to a finding that until 1960 only the descendants of Gbere Kaboo, which the appellant is one of, ascended that stool of Menebon Kpor and that the Mbari Ntaoh, the father of the Respondent, usurped the stool in 1960. Appellant offered no useful argument, if any, on why since 1960 until the year 2000 only Mbri Ntaoh, his brother and his sons, including the Respondent, had effectively and dominantly been on the said stool without any challenge.
Appellant who traced his ancestry to Gbere Kaboo, the alleged founder of kpor and the first Menebon Kpor, submits that where a party’s ancestor is shown to be the original founder of the stool, the presumption is that the claimant and his successors in title will continue to be the owner of the stool until the contrary is proved. GWAR V. ADOLE (2003) 3 NWLR (PT.808) 515 is said to be the authority for this submission. This presumption can as well be useful to the Respondent whose father, Mbari Ntaoh, ascended the stool of Menebon kpor on the alleged admission or confession of appellant’s father in 1960, and whose successors were either his brother or sons consecutively without any protest or challenge whatsoever until Appellant’s belated effort in 2000. The court is permitted to presume, under section 149 of the Evidence Act, the existence of any fact which it thinks likely to have happened, regard being had to common course of natural events, human conduct and business, in their relation to the facts of a particular case. This presumption may well prove to be the Appellant’s undoing. At page 229 of the learned trial judge posed some salient questions which Appellant’s evidence failed to resolve. Some of such posers touch the claim of the Appellant (Awanen) that he could not ascend the stool on his father’s death because he had not come of age. The trial judge then asked:
Assuming that Awanen was born a few minutes before his father died in 1960, and given the story of about regency, why did it take 48 years for Awanen to ascend to the throne?
Why did the Gbere Kaboo family decide to wait for Awanen in the first place? Was Awanen the only qualified candidate in that family? Again, why was the regent Chief Nkpee Baabel, not called to testify about his regency and the usurpation of the throne by Ntaoh’s father? Indeed, CW.1 admitted under cross-examination that Chief Nkpee Baabel was at home – It took 14 questions in cross-examination before (Awanen) admitted that as at 2nd April, 2008 – He was evasive because he did not want his lies about the regency to be exposed.
Awanen, the appellant, was in the opinion of the trial judge, a liar whose case “is riddled with doubts (and) other gaps”. In conclusion the trial judge found that his “story sounds discordant, improbable, and unnatural. It is incredible”. The appellant kept his long distance from these damaging findings of fact in the portion of the judgment at pages 229-230 of Record. Since they were neither challenged nor attacked either in the Notice of appeal or in the appellant’s brief they are taken as admitted and acceptable to the appellant. That finding or portion of judgment persists and remains binding on the appellant, whether right or wrong, until set aside. See AGUSIOBI v. OKAGBUE (2001) 15 NWLR (Pt. 737) 502; AG.F v. AIC LTD (2010) 10 NWLR (Pt. 675) 295. A judicial act, which has been done in a manner substantially regular, is presumed to be valid under section 150(1) of Evidence Act. I am of the firm view that the appellant is not right in criticizing the trial judge for not properly evaluating the totality of the evidence. Exhibit A, which the appellant says was not considered, was indeed considered. At page 230 of the Record the learned trial judge found that Exhibit A “does not help Awanen’s case”, and that ‘if anything it supports Ntaoh’s pleading that he is the Menebon kpor”. References to Awanen and Ntaoh are respectively references to the Appellant and Respondent.
The case of the appellant, as the claimant, was that only Members of the royal of ruling family in Kpor, in accordance with Gokana Customary Law, are eligible to be crowned Menebon Kpor. The PW1 said so on oath. In what appears to be an admission against interest the same PW1 at pages 156 – 7 of the Record admitted under cross-examination that the Respondent’s father, Mbari Ntaoh, was the paramount ruler (Menebon Kporo when he (PW.1) was a member of council of Chiefs. The Appellant, as CW.3, admitted under cross-examination at page 176 of the Record that Kilbe Mbari Ntaoh, respondent’s elder brother, was crowned as Menebon Kpor in 1970 when he (CW.3) was in school. He further ridiculed himself in an effort at damage control, when he denied ever hearing that the same Kilbe Mbari Ntaoh was crowned as Menebon Kpor and insisted that the said Kilbe Mbari Ntaoh never ruled as the paramount ruler of Kpor. The learned trial judge was, therefore, right when he found that the case of the appellant was “riddlled with doubts (and) other gaps” with and further that his case was incredible, discordant, improbable and unnatural.

The law is settled, as Respondent correctly submits, that no witness, who has given on oath two materially inconsistent evidence, is entitled to the honour of credibility. Such a witness does not deserve to be treated as a witness of truth. See EZEMBA v. IBENEME (2004) 14 NWLR (Pt. 894) 617 at 654 & 664; ABATAN V. AWUDU (2004) 17 NWLR (Pt.092) 420 at 445. The same also goes for a witness who has been discredited either by cross-examination or another material witness or evidence.
The case of the Appellant was full of inconsistencies and material contradictions. The law is trite that when witnesses for a party give evidence that are mutually inconsistent and contradictory on material facts the court should not attach any probative value to such evidence. See AGBI V. OGBE (2005) 6 NWLR (Pt.926) 40 at 138. The court in the circumstance is not permitted to pick and choose which of the witnesses to believe or disbelieve. See BOY MUKA V. THE STATE (1976) 10 – 11 SC 305. In a claim for declaratory relief, as the instant case, the claimant must prove his case. It is not for the defendant to disprove the claimant’s case where the claimant has himself failed to prove his case. Where the claimant fails to prove his case by his own evidence’ the claim becomes liable to be dismissed and the trial court needs not consider the defendant’s case. See AYANRU V. MANDILAS LTD (2007) 10 NWLR (PT. 1043) 462 AT 447 – 8. The defence of the Respondent was hinged on the averment that in 1960 the Appellant’s father and the Respondent’s father had a dispute over whether the Respondent’s father was entitled to ascend the stool of Menebon kpor. The dispute went before the Gberemene of Gbokana. The Respondent’s father, Mbari Ntaoh, offered oath to the Appellant’s father. The latter, it was averred, took the oath and later became ill. Thereafter, appellant’s father allegedly conceded and accepted that the Respondent’s father was “from the Royal family and the rightful person to be “the Menebon kpor and he was consequently installed by the Gberemene of Gokana in 1960 as the Menebon.” The Amended Statement of Defence and the deposition on oath of the Respondent are respectively at page 46 – 52 and 68 – 73 of the Record. These averments or depositions remain unscathed. In the extensive cross-examination of the Respondent (DW.2) at pages 205 – 219 of the Record not a single question was put to the Respondent on this. His evidence on this contained in his depositions on oath remains unchallenged and unscathed. The law on this is settled. Facts not disputed, challenged or contradicted are taken as established. They need no further proof. Such uncontroverted or admitted facts are credible and generally remain the best evidence against the party who is said to have made the admission. The appellant is therefore estopped from insisting that the Respondent and his predecessors-in-title were usurpers to the stool of Menebon Kpor from 1960 to date.
Overwhelming evidence supports the findings of fact made in favour of the Respondent. The findings are not perverse. The practice of appellate courts, settled by a plethora of authorities, is that the appeal court will not interfere with findings of fact made by the trial court where such findings of fact are supported by the pleadings and credible evidence before the court. see for instance HAMZA v KURE (2010) 421 NSCQR 592 at 616; OGIDI V. THE STTE (2003) 9 NWLR (Pt.824) 1 and AJIBULU V. AJAYI (2004) 11 NWLR (Pt.885) 458.
The learned trial judge properly evaluated the totality of the evidence before finding for the Respondent. The findings are supported by credible evidence on Record. The findings are not perverse. Accordingly, I resolve this issue against the Appellant
On the whole there is no substance in this appeal. The appeal is accordingly dismissed with costs at N60,000.00 in favour of the Respondent and against the appellant.

M. DATTIJO MUHAMMAD, J.C.A.: This appeal as my learned brother Eko JCA succinctly demonstrates in the lead judgment, is devoid of any substance. I join him in dismissing the appeal at the very costs his lordship decreed in the lead judgment.

T.O. AWOTOYE, J.C.A.: I have read before now the judgment of my learned brother EJEMBI EKO JCA. I agree entirely with his reasoning and conclusion in the said judgment.
This appeal lacks substance. In paragraph 4 of his further amended statement of claim, the claimant/appellant rested heavily on a book written by Dr. N.B. ANOKARI on Kpor politics and culture. He tendered the said book as part of his case. The book was admitted as Exhibit A.
The learned trial judge considered the said book and remarked as follows in his jdugmetn on page 230 of the record.
“I should also state the Exhibit A, Kpor Politics and Culture by Dr. Anokari, does not help Awanen’s case. If anything it supports Ntaoh’s pleading that he is the Menebon Kpor or paramount ruler of Kpor. At page 3 the author wrote, “I equally owe a debt of gratitude… to Chief Belmene Mbari Ntaoh, the Paramount ruler of Kpor community” paragraph 7 of the Amended Statement of Defence shows that Chief Belmene Mbari Ntaoh is the 1st defendant in this case. Although Dr. Anokari referred to Gbere Kaboo as the founder and first king of Normabon Kpor (Old Kpor), I find no evidence identifying the Menebon Kpor stool with Normabon Kpor (Old Kpor). Even though DW1 said the Kpor is undivided, the question remains, which Kpor did he refer to – Old Kpor, or new Kpor, or Kpor. Of course, I cannot speculate.”
The claimant/appellant seems to have supplied the weapon to kill his own case. Exhibit A was tendered by Chief Friday Kiri of Kpor Town, the CW3 for the claimant. In his evidence on page 167 of Record he said.
“I said I will rely on Dr. A.B. Anokari’s book” Kpor Politics and Culture” Dr. Anokari is at London now.”
The claimant is estopped from contradicting whatever is contained in the document he presented before the court himself. By virtue of section 22 of the Evidence Act statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions. Exhibit A described the 1st defendant at page 3 as the paramount ruler of Kpor community. Exhibit A further referred to Gbere Kaboo as the founder and first King of Normabon Kpor (Old Kpor) as opposed to Menebon Kpor which the claimant is claiming.
The jugular of the plaintiff’s claim is rooted in paragraphs 4 – 8 of their statement of claim which read and from whom they descended.
“4. The plaintiff shall at the hearing of this suit lead evidence to the effect that Kpor Community was founded by Gbere Kaboo who migrated along with some of his followers from Giokoo the ancestral home of the Gokana people.
5. The said Gebere Kaboo as founder of the said Kpor community Gebere Kaboo in accordance with Gokana Native Law and Custom also applicable in Kpor became the King thereof that is Menebon Kpor (paramount Ruler of Kpor).
6. After the demise of Gbere Kaboo the following persons who were 1st surviving sons of the founder and his descendants on the throne became in accordance with the said Native Law and Custom of Gokana also applicable in Kpor as Menebon Kpor. These are:
a. Gbere Deela
b. Gbere Deela Gbara
c. Gbere Dube
d. Gbere Baridoma Gaawa
e. Gbere Awanen
f. Gbere Naabira dee
g. Gbere (Chief) Court Nabira Awaner
7. The plaintiff shall at the trial of this suit lead evidence to the effect that all through history the custom of the Gokana people applicable in Kpor and other parts of Gokana is that it is the founder of a community and members of his family that accede to the throne of Menebon (Paramount Ruler) of the Community.
8. The person mentioned in paragraph 6 above are members of the Gbere Kaboo family of Kpor of which the plaintiff is the present Head under native law and custom.”
The introduction of Exhibit A, by the plaintiff into the proceedings was like a KAMIKAZE tactic which boomeranged against them. The effect of page 3 of the said book was that it destroyed the very foundation of the plaintiffs’ case.
The learned trial judge was therefore right to have resolved that the claim for declaration was not proved and dismissed the claim accordingly. The findings of the learned trial Judge are in my respectful view not perverse. There are sufficient evidence to justify the findings and no miscarriage of justice was occasioned. The findings of fact do not deserve to be disturbed. See OLORUNFEMI V. ASHO (1999) 1 NWLR (PT. 585) page 1; LENGBE V. UMALE (1959) NWLR (PT. 325). This appeal lacks merit. It is accordingly dismissed.
I abide by the orders as to costs as assessed in the lead judgment.