DAVID EHIGIE OSEMWENKHA v. PETER OSEMWENKHA
(2012)LCN/5558(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2012
CA/B/69/2011
RATIO
CUSTOMARY LAW: EVIDENCE OF CUSTOMARY LAW IN BINI
It has been settled long ago that the evidence of customary law in Bini is that the eldest son of the testator is entitled without question to the house or houses known as Igiogbe in which his father lived and died. It has been stated emphatically that this is the normal rule. No exceptional situations had been shown where an eldest son is denied this right. IDEHEN V. IDEHEN (1991) 6 NWLR (Pt. 198) 382.
In ABUDU v. EGUAKUN (2003) 14 NWLR (Pt. 840) at 319 Belgore JSC stated thus- “By the Customary Law of Bini upon the death of a father the eldest son taken over his estate as a trustee for all the deceased children pending the performance of the second (final burial rites). After the performance of final rites the eldest son automatically inherit the main seat of his deceased father that is to say the house where the deceased lived, died and was buried. This house is called ‘IGIOGBE’ and does not vest unless the 2nd burial rites are performed by the eldest son”. See also AGIDIGBI v. AGIDIDGBI (1996) NWLR (Pt.454) 300 at 312; OGIAMEN v. OGIAMEN (1967) NSCC Page 189. PER GEORGE OLADEINDE SHOREMI J.C.A.
EVIDENCE: REQUIREMENT FOR AN ADMISSION AGAINST INTEREST TO HAVE PROBATIVE VALUE OR EVIDENTIAL VALUE
It is settled law that an admission against interest to have probative or evidential value same must be precise and unequivocal. See UDO v. OKUPA (1991) 5 NWLR (Pt.191) 365 at 386. PER GEORGE OLADEINDE SHOREMI J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
It is now settled that a party may prove title to a piece of land in any of the following five ways:
- a) by traditional evidence etc. Prove by document is just one of the five ways see the LOCUS CLASSICUS. IDUNDUN & ORS v. OKUMAGBA (1976) 9-10 SC 227. PER GEORGE OLADEINDE SHOREMI J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
Between
DAVID EHIGIE OSEMWENKHA Appellant(s)
AND
PETER OSEMWENKHA Respondent(s)
GEORGE OLADEINDE SHOREMI J.C.A. (Delivering the Leading judgment): This is an appeal against the judgment of Edo State High Court holding in Benin, the judgment was delivered on 19th November, 2010. The claim of the Respondent leading to the judgment is as follows:
“The Plaintiffs claim against the Defendant is as formulated in Paragraph 22 of the Further Amended Statement of Claim filed on the 21st of October, 2005 which reads thus:-
a) A declaration that the Plaintiff stepped into his late father’s shoes in accordance with Bini Native Law and Custom is entitled to inherit his late father’s principal Mansion House otherwise known and called ‘Igiogbe’ lying and situate at No.24 (old No.5), Oregbeni Quarters, opposite former Nigerian Army Barracks, Oregbeni, Benin City (which Plaintiff’s father inherited from his father, LATE PA OBAZEE OSEMWENKHA) to the exclusion of any other person.
(b) An Order compelling the Defendant to give up immediate possession and occupation of the aforesaid Principal Mansion House (Igiogbe) and the entire premises.
(c) An Order compelling the Defendant to give up possession of the building comprising of four (4) stores and a three (3) bedroom flat erected by the Defendant on the rear right end of the Igiogbe during the pendency of this suit.
(d) An order of court compelling the Defendant to render an Account to the Plaintiff of all rents collected from the aforesaid house since 1st December, 1996 until the delivery of possession of same to the Plaintiff.
(e) Payment of all such sums collected by the Defendant and interest thereon to the Plaintiff.
(f) A Perpetual Injunction restraining the Defendant, his agents, servants and/or privies from interfering with the Plaintiffs proprietary rights over and in the said property (Igiogbe)”.
Pleadings were duly filed and exchanged between the parties. The Plaintiff, in proof of his case testified for himself and called (five) witnesses; and tendered Exhibits A-F2 respectively. The Defendant testified in his defence and called four (4) witnesses and tendered several Exhibits.
At the end of the whole trial the learned trial Judge as part of his judgment has this to say I quote-
“Having painstakingly considered the totality of both and documentary evidence of the Plaintiff and his witnesses and weigh same side by side with the evidence of the Defendant and his witnesses, in line with their pleadings I say without hesitation that I prefer the evidence of the Plaintiff and his witnesses to that of the Defendant and his witnesses”.
The Judge thereafter granted all the reliefs asked for by the Plaintiff.
The Appellant who was the Defendant in the trial court dissatisfied with the judgment filed a Notice of Appeal dated 24/12/10 which has 10 grounds of appeal I quote without particulars-
GROUNDS OF APPEAL
1. The decision is against the weight of evidence.
The learned trial Judge erred in law when he held that “No.11 Virgina Street, Benin City was built by Plaintiff’s father.
2. The learned trial Judge erred in law when he held “In the circumstances, I am satisfied that the Plaintiff entitled in this case, and judgment is hereby entered in his favour against the Defendant in the following terms: “A declaration that the Plaintiff having stepped into his late father’s shoes in accordance with Bini Native Law and Custom is entitled to inherit his late father’s Principal House otherwise known and called “Ogiogbe” lying and situate at No.24 (old No.5), Oregbeni Quarters, opposite former Nigeria Army barracks, Oregbeni, Benin City (which Plaintiff’s father inherited from his father, LATE PA OBAZEE OSEMWENKHA) to the exclusion of any other person.
3. The learned trial Judge erred in law when he held “I believe the evidence of the Plaintiff and his witnesses that the Estate was not shared because of the disagreement between Plaintiff’s father and Mr. J. I. Idehen over the refusal of J. I. Idehen to release money paid by Guinness Nigeria Limited as compensation for its occupation of the family land”.
4. The learned trial Judge erred in law when he held “I believe and accept the convincing evidence of the PW1, PW2, PW3 that the Plaintiffs father built the house at No.11, Virgina Street, Benin City while he was working in Kano”.
(5) The learned trial Judge erred in law when he held that the Plaintiff a grandson to Pa. Obazee Osemwenkha inherited No.11 now No.22, Oregbeni Street, Benin City in 1966.
(6) The learned trial Judge erred in law when he held that Exhibit ‘A’ is not caught by Section 91(3) of the Evidence Act.
(7) The learned trial Judge erred in law when held that the Defendant signed Exhibit ‘D’.
In line with the practice of this court parties exchanged briefs of argument and when the appeal came up, for hearing Chief Okoh SAN of counsel to the Appellant’s leading other counsel identified his brief of argument dated and filed on 7/4/11 and a Reply brief dated and filed on 20/5/11. He adopted Appellant brief and Appellant’s Reply briefs and relied on them as his argument in favour of the appeal and he urged the court to allow the appeal.
The Respondent in person identified his brief as having been filed on 29/4/11 He adopted same and relied on it. He pointed out to the court that he had a Respondent notice at 243-244 of the Record. His notice reads as follows “TAKE NOTICE” that upon the hearing of the above appeal the Respondent intends contend that the decision of the court below dated the 19th day of November, 2010 shall be affirmed on grounds other than those relied on by the court below:
That the findings and judgment of the lower court is amply supported by Exhibits ‘D’ and ‘B’ tendered and admitted during the trial.
AND TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:
a) The previous testimony of the defendant in charge No. MB/1109C/74: C.O.P. v. DAVID OSEMWENKHA & ANOR particularly page 2 which was tendered as Exhibit ‘D’ wherein he admitted Plaintiffs father’s ownership of the subject-matter was an unequivocal admission of title and he is stopped from denying same.
b) Exhibit ‘B’ particularly p.54 containing the testimony by the head of the family (Okaegbe), Pa. Edusa on behalf of the Defendant in Suit No.UACC/8/89: BETWEEN P. O. OSEMWENKHA v. D. E. OSEMWENKHA & ANOR lent credence to the fact that the Defendant was one of the principal members of the family that shared the Plaintiffs father’s property in April 1995 and in fact signed Exhibit ‘A’, the Certificate of Distribution which vested titled to the subject-matter in the Plaintiff”.
He referred to his argument on this issue as contained on pages 42-48 of the Respondent’s brief. He urged the court to dismiss the appeal.
Appellant having abandoned the ground of appeal unnumbered after ground 1 and Ground 8, the abandoned grounds i.e. the unnumbered ground after Ground 1 and Ground 8 of the grounds of appeal are struck out from the remaining 9 grounds of appeal. The Appellant distilled 7 issues for consideration.
From the remaining nine (9) grounds of appeal, the following issues arise for consideration.
1. Whether the Estate of Pa. Osemwenkha Obazee was shared amongst his children by J. I. Idehen (The Okaegbe) the family head. (Grounds 3).
2. Whether the Appellant’s title to No.5, Oregbeni, Benin City has not been admitted and acknowledged by the Respondent. (Ground 9).
3. Whether having regard to the pleading and evidence on the record, the learned trial Judge was right in holding that the Respondent has proved his claim on the balance of probability (Grounds 1 and 2).
4. Whether Exhibit “A” is caught by section 91 (3) of this Evidence Act (Ground 6).
5. Whether ownership of No.11, Virgina Street, Benin City has been proved in accordance with Bini Customary Law. (Ground 4).
6. Whether the learned trial judge was right when he compared the signatures in Exhibits without hearing from the parties on the issue (Ground 7).
7. Whether the Appellant was allowed to live at No. 5, Oregbeni, Benin City by benevolence (Ground 10).
Issue (1) Whether the Estate of Pa Osemwenkha Obazee was shared amongst his children by J. I. Idehen (The Okaegbe). The family head (Ground 3).
The Appellant argued that the onus is on the claimant in an action for declaration of title to land. He argued that where the onus is not discharged, the weakness of the defence will not be of any help to the Plaintiff. He relied on ONWIEBUARIRI v. IGBOASOYI (2011) 3 NWLR (Pt.1234) 457, 482. He argued that the Respondent did not plead specifically whether the estate of Pa. Osemwenkha Obazee’s properties were shared or not.
He argued that in contrast the Appellant pleaded in Paragraph 4(a), to the effect that the said properties were shared by the Okaegbe. The Appellant referred to the evidence as shown on record including the evidence of a Benin Chief which says if a Bini man’s property is not shared the properties remain in the Okaegbe in trust. He argued that where a trial court fails to evaluate the evidence properly the Court of Appeal will intervene. He urged the court to resolve this issue in favour of the Appellant.
The Respondent in his own wisdom distilled 6 issues from the 9 Grounds of appeal in the following manner.
1) Whether the Respondent established his title to the subject-matter in dispute and other ancillary reliefs claimed on the preponderance of evidence (Encompassing grounds 1, 2, 5, 7, 9 and 10).
2) Whether the Appellant who is second son established by credible evidence that the estate of Pa. Osemwenkha Obazee was shared and the subject-matter (the Igiogbe) given to him. (Encompassing ground 3).
3) Whether the Appellant established by credible evidence that the house of No, 11, Virgina Street, Benin City was part of the Estate of Pa. Osemwenkha Obazee. (Encompassing Ground 4).
4) Whether Exhibit ‘A’ is d document made when proceedings were anticipated and afortiori caught by S. 91(3) of the evidence Act. (Encompassing Ground 6)
5) Whether the lower court rightly compared the Appellant’s admitted signature in the documents tendered as Exhibits in court. (Encompassing Ground 7)
6) Whether the learned trial judge was right in his finding that the Appellant was allowed to live in the house in dispute by the benevolence of the Respondent’s father. (Encompassing Ground 10).
The Respondent to my mind should have adopted the issues as distilled by the Appellant. The issues as distilled by him is confusing and not neat enough. I will therefore apply the argument of the Respondent as they relate to issues as distilled by the Appellant. In his reply to issue 1 the Respondent argued that evidence was led to show that F. I. E Osemwenkha having performed the funeral rites as the 1st son he is entitled to the Igiogbe. He said evidence was led to show that the estate of Pa Osemwenkha was not shared because of the dispute between the Respondent’s father and the Okaegbe. He argued that was corroborated by all his witnesses.
He referred to the evidence of PW3 (the present head of family) which was positive that the properties of Obaze was not shared. He argued that Okaegbe was 80 years old when he gave evidence.
He said that the court should discountenance the Appellants hair-splitting submission which tried to fault the credence given to the evidence of PW3. He relied on INEC v. OSHIOMOLE (2009) 4 NWLR (Pt.1132) 607 and OSAWARU v. EZEIRUKA (1978) 6-7 SC 135 at t48. He argued that the Respondent having discharged the burden of proof placed on him by law, the onus shifts on the Appellant to show that the property referred to was not shared. This he failed to do.
The Respondent quoted profusely from the evidence on record and also a large portion of the judgment. He argued that where the property of a deceased has not been shared, the second and final burial rites the Igiogbe automatically vested in the eldest son. He argued that the lower court particularly evaluated the oral and documentary evidence relating to sharing of the property in question and that he came to unassailable conclusion that the Appellant not only shared but also signed Exhibit “A”. He urged the court to hold that the lower court was right in his evaluation of the evidence and came to a right conclusion.
Let me say at this junction that the custom of Bini inheritance is not in dispute in this case.
It has been settled long ago that the evidence of customary law in Bini is that the eldest son of the testator is entitled without question to the house or houses known as Igiogbe in which his father lived and died. It has been stated emphatically that this is the normal rule. No exceptional situations had been shown where an eldest son is denied this right. IDEHEN V. IDEHEN (1991) 6 NWLR (Pt. 198) 382.
In ABUDU v. EGUAKUN (2003) 14 NWLR (Pt. 840) at 319 Belgore JSC stated thus- “By the Customary Law of Bini upon the death of a father the eldest son taken over his estate as a trustee for all the deceased children pending the performance of the second (final burial rites). After the performance of final rites the eldest son automatically inherit the main seat of his deceased father that is to say the house where the deceased lived, died and was buried. This house is called ‘IGIOGBE’ and does not vest unless the 2nd burial rites are performed by the eldest son”. See also AGIDIGBI v. AGIDIDGBI (1996) NWLR (Pt.454) 300 at 312; OGIAMEN v. OGIAMEN (1967) NSCC Page 189.
The trial Judge had adequately evaluated the evidence of both parties before coming to the conclusion that late. J. I. IDEHEN (the Okaegbe) was unable to share the property of Pa Osemwenkha Obazee because of the pending suit against him and that Exhibit ‘A’ coupled with straight forward evidence of the Respondent’s witnesses especially PW3 the court believed them. I see no reason why the finding of facts by the trial Judge should be faulted. This issue is resolved against the Appellant therefore ground 3 fails.
ISSUE 3
Whether having regard to the pleadings and evidence on the record the learned trial Judge was right in holding that the Respondent has proved his claim on the balance of probability (Grounds 1 & 2).
The Appellant under this issue is of the opinion that where a man claims through a predecessor in title he must also prove the title of such predecessor in title. Refer to OKHUOROBO v. AIGBE (2002) 9 NWLR (Pt.771) 29. He argued that the claim of the Respondent is rooted on inheritance. He quarried Respondent’s right as a grandson to own an estate which has not been shared.
In aid of his argument he referred to Exhibit ‘K’ a quit notice by the Respondent on behalf of the Appellant. He argued that the Respondent by documents admitted that the Appellant is the owner of 5 Oregbeni subject matter of the appeal. He argued that the Respondent has no direct right of inheritance to the grandfather’s estate in the absence of sharing. He urged the court to resolve the issue in his favour.
The Respondent in answer to this issue argued that the argument of the Appellant that the Respondent admitted the ownership of the property in issue because he acted for him as Solicitor in respect of the same property. He argued that Exhibit ‘G’, ‘K’, ‘K1 cannot vest title in the Appellant since he had no title to the said property.
He said there was evidence that the Appellant was allowed to live and collect rents from the subject-matter by the Appellant’s father. He acted as care taker. He argued that the Appellant had all along never disputed the Respondent in title ownership of the subject-matter or that of the Respondent Exhibit ‘A’ and ‘D’.
He argued that for an admission against interest to have probative or evidential value same must be precise and equivocal there should be no speculation.
It seem not to see the relevance of the argument of the Appellant under this issue. The Appellant is taking out the representation of the Appellant by the Respondent in a Landlord/Tenant case as having placed ownership on the Appellant. He failed to appraise the totality of evidence led. It is settled law that an admission against interest to have probative or evidential value same must be precise and unequivocal. See UDO v. OKUPA (1991) 5 NWLR (Pt.191) 365 at 386.
I again find it difficult to fault the evaluation of the evidence by the trial court.
Issue two is resolved against the Appellant.
Issue 3 Whether the Appellant title to No.5 Oregbeni Benin City has not been admitted and acknowledged by the Respondent and thus estopped from challenging Appellant’s title Ground 9.
In his argument the Appellant cited OBI v. ONYEMCHUKWE (2011) 7 NWLR (Pt.1228) 400 at 423 for his proposition. No fact need be proved in any court proceedings which the parties thereto agree to admit at the hearing in writing under their hands. He referred to a motion exparte and supporting affidavit which were prepared by the Respondent where the Appellant swore to an affidavit as the owner of No.5 Oregbeni. He argued that the motion was moved by the Respondent. Refers to Exhibit K, K1. He argued that the Respondent knew that the disputed house was shared to the Appellant. He argued that Exhibit G, K1, K2 and K3 are binding on the Respondent.
The Respondent to my mind based his argument on Exhibit ‘A’ which he said was signed by family members who have no interest whatsoever in the estate of the Respondent tile none of the signatories were beneficial of F. I. E. Osemwenkha’s estate. He also referred to the evidence of PW5 the counsel who prepared Exhibit “A”.
He argued that Exhibit ‘A’ merely shares or distribute the Estate of F. I. E. Osemwenkha Esq. among the children and no more.
Exhibit “A” was not prepared by the Respondent but by PW5 and the Appellant was a signatory. The Respondent was not a signatory and Exhibit ‘A’ can not by any stretch of construction be said to have been made in anticipation of litigation moreso when the Appellant was clearly a signatory to the said document.
To my mind this issue is also based on evaluation of evidence and documents particularly Exhibit G, K1, K2, and K3 which should not be taken in isolation from the totality of the evidence adduced I cannot see from a different angle to the way the piece of evidence was dealt with by the learned trial Judge who had the opportunity of listening to evidence and demeanor of witness. I can not fault his finding or this issue and it is resolved in favour of the Respondent.
Issue 4 Whether the ownership of No.11 Virgina Street, Benin City has been proved in accordance with Bini Customary Law (Ground 4).
In argument the Appellant said the No. 11 Virgina Street was built by his father who was both Odionwere of Oregbeni and Virgina Street built and owned by F. I. E. Osemwenkha his late father.
He cited Section 15(1) of the Evidence Act that whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which asserts must prove that those facts exist. The burden of proving a particular fact is on the party who asserts.
The Respondent argued that when his own issue 3 which was based on the ownership of the house at No.11 Virgina Street Benin City. He submitted that there is evidence from the Respondent and his witnesses including the Appellant and all his witnesses that when the Respondent’s father came back from England in 1963 he went to the said house and lived in it till he died. The witness was unshaken during cross-examination.
The learned trial Judge has this to say I quote –
“I believe and accept the convincing evidence of PW1, PW2 and PW3 that Plaintiff’s father built the house at No.11 Virgina Street, Benin City while he was working in Kano”.
The argument of the Appellant that the Respondent failed to tender any document to prove ownership of No.11 Virgina Street can not be used to defeat the finding of the learned trial Judge.
It is now settled that a party may prove title to a piece of land in any of the following five ways:
a) by traditional evidence etc. Prove by document is just one of the five ways see the LOCUS CLASSICUS. IDUNDUN & ORS v. OKUMAGBA (1976) 9-10 SC 227.
This issue is resolved in favour of the Respondent.
Issue 5 Whether Exhibit A is caught by S. 91(3) of the Evidence Act and thus inadmissible. Under this issue the Appellant argued that Exh. “A” is prepared in such a way that all the purported sharing were computed into one page while the second page was just for signature giving the opportunity to attach any other page and document to the page for signature just to give it semblance of continuity. Refer to N.M.A. v. M.M.A. INC (2010) 4 NWLR (Pt.185) 613.
He argued that it is wrong for the learned trial Judge to hold that Uzzi Esq. is the maker of Exhibit “A”. He argued that Exhibit “A” was made in anticipation of litigation. He said Exhibit “A” was made in anticipation of litigation.
The Respondent argued that Exhibit “A” was prepared by PW5 the Appellant was a signatory. He urged the court to hold that Exhibit “A” was not made when proceedings are anticipated and therefore not caught by S. 91(3) of the Evidence Act. He said the case of consolidated Breweries cited by the Appellant is of no relevance.
With regards to Exhibit ‘A’ the trial Judge adequately examined the document and came to the conclusion that it was not made for the purpose of this suit. It was made in April, 1995 long before the case was instituted. It could not have been anticipated because as at 1995 there was no dispute. The Appellant alleged fraud but could not by any iota of evidence establish fraud.
For the above reason I resolve the issue against the Appellant.
Issue 6
Whether the learned trial Judge rightly compared the Appellant’s signature in Exhibit “A”, “E”, “E1”, “E2” and “P” without hearing from the parties on the issue. He argued that Exhibit “A” is a document shared No.5 Oregbeni, Benin City to the Respondent who agreed that the property of Pa Osemwenkha has not been shared.
He argued as he has earlier done that the Exhibit is taunted with fraud. He argued that by virtue of Section 108(1) of Evidence Act the court is empowered to make comparison with two signature. The offence of the trial Judge is that he did not refer the documents to counsel before coming to his conclusion. He cited the case of NDOMA-EGBA v. ACB PLC (2005) 14 NWLR (Pt.944) 79 at 102.
The Respondent says contrary to Appellant’s submission he argued that the Appellant was confronted with his signature on Exhibit “A” during cross-examination and he replied thus:
“I did not sign Exhibit “A”. It is true that I signed the affidavits in Exhibit “F” and “F1″ page 88 of the records”.
He argued that by S. 108(1) of the Evidence Act a court is empowered to compare signatures of documents. He argued that the facts in NDOMA-EGBA’s case Supra is distinguishable from the extant case. He argued that the issue was argued in the court. Apart from Exhibit “A” all the document were certified copies. He referred to NGIGE v. OBI (2006) 14 NWLR (Pt.199) 1 at 166. He argued that each case must be decided on its own merit.
Let me refer to the case of NDOMA-EGBA cited by the Appellant wherein it was decided that proof of fact of signing a signature rest on the Respondent and it was said that the court should not of its own make or decide an issue relating to the disputed signature on the basis of its own observation in of writing its judgment.
In Ndoma-Egba’s case it was found that the Respondent on whom lies the onus to prove the signature did not succeed in discharging the onus. In ABUBAKAR v. YAR’ADUA (2009) All FWLR (Pt.457) 1 SC Niki Tobi considering S. 108 (1) & (2) (now S. 101 (1 & 2) of the Evidence Act 2011 above is not to turn over to the court the duty of comparing handwriting or signature in a civil case, the parties to the dispute themselves ought first to have called evidence to show that a person signed or did not sign the signature in dispute. The court can not without such evidence volunteer to find evidence for one of the parties as to who had signed the disputed signature. (Underlined mine for emphasis).
In the case under consideration evidence is abound to enable the trial Judge to compare the signature.
The Respondent (as Plaintiff, 2nd PW and 5th PW gave evidence that Exhibit “A” was signed by the Appellant.
The Appellant did not deny signing Exhibit ‘P’ and other exhibits tendered and admitted. The trial Judge therefore had enough materials (Evidence) to enable him exercise his power under S.108(1) and (2) now Section 101 (1) & (2) Evidence Act 2011. He rightly did. The argument of the Appellant can not dislodge the exercise of his powers in this case. The issue is therefore resolved in favour of the Respondent.
Issue 7 Whether the Appellant was allowed to live at No. 5 Oregbeni Benin City by Benevolence ground 10. He argued that the Appellant would not have been allowed to live at No. 5 Oregbeni when it was clear from evidence that the Appellant was well to do. Moreover the lower court held that the estate of Appellant’s father has not been shared, this conclusion presupposes that the estate remain a family property.
He cited SOWUNMI v. AYINDE (2011) 1 NWLR (Pt.127) 122 at 148. The Respondent argued that the Appellant can not now raise any issue based on the principle that the property is family property in the lower court and therefore of no moment. He argued that there are abundant evidence which allowed the trial Judge to so hold.
I have read the record and I find that at pages 228-229 the learned trial Judge evaluated the evidence of the Appellant and his witnesses and the Respondent’s evidence and his witnesses. I can not fault the findings of fact of the trial Judge. I agree with his findings. The grounds of appeal together with issue formulated is dismissed.
The Respondent filed a Respondent’s notice which I have earlier on quoted and at page 42 of his brief distilled two issues to wit:
ISSUES
The issues that call for determination are as stated hereunder:
i. Whether Exhibit ‘D’, a record of proceedings particularly Pg.2 thereof (in CHARGE NO. MB/1109C/74) containing the testimony of the Appellant constituted an admission by the Appellant of the Respondent’s father’s title and is thus stopped from denying same. (covered by ground 1 of the Respondent’s Notice).
ii. Whether Exhibit ‘B’ (particular pg. 54 thereof) containing the testimony of the Okaegbe (Head of the family) who shared the Respondent’s father’s estate in 1995 in Suit No. UACC/8/98 between P. O. OSEMWENKHA v. D. E. OSEMWENKHA & ANOR. Lent credence to the case of the Respondent. (covered by ground 2 of the Respondent’s Notice).
The summary of his argument under this issue one is that Exhibit ‘D’ a certified true copy of proceedings in charge No.MB/1109/C/74 should be held to be an admission by the Appellant. He referred the court to the fact that there is contradiction in his admission in Exhibit ‘D’ and his testimony in court. The Appellant in his reply brief argued that Exhibit ‘D’ is a criminal proceedings which is not admissible in civil matters notwithstanding the fact that the Appellant did not object to it. Exhibit ‘D’ is a criminal proceedings. The argument of the Respondent did not address this issue. He only premised his argument on part of record which he claimed to be an admission.
The Supreme Court in ABUBAKAR v. JOSEPH (2008) 13 NWLR (Pt.1104) 307 held that a criminal proceedings in a civil trial or proceedings was wrong. Such proceedings was certainly inadmissible in any court.
Record of proceedings in a criminal proceedings should not be admitted in evidence in a civil proceeding. See OKUNOREN v. USA (1951) 20 NLR 25. I hold that Exhibit ‘D’ being inadmissible can not form the basis of any decision. The issue is resolved against the Respondent.
Issue 2 of the Respondent to my mind lacks merit. It is an attempt to reopen a case when he had all the opportunity in the whole world to use Exhibit ‘B’ to perpetrate the required evidence and he has to satisfy the requirement in Section 34 (1) of Evidence Act. This issue is untenable and it is resolved against the Respondent. The Respondent notice is devoid of any merit and it is dismissed.
In proof of cases of this nature. It is not necessary that all five ways of proving Declaration of tile as enumerated in IDUNDUN v. OKUMAGBE (1976) 1 NWLR 200 must be proved by the Plaintiff. It suffices if one is proved and the item to be proved will depend upon the claim of the Plaintiff and the particular facts and circumstances of each case – EMMANUEL ADENIRAN v. EMMANUEL ALAO (1992) NWLR (Pt 223) 350.
The argument of the Appellant is based on misdirection and if this is so the judgment of the court below can not stand. What the court has to decide is whether the decision of the Judge was right, not whether his reasons were. It is only where the misdirection has caused him to come to a wrong decision that it would be material. UKEJIANYA v. UCHENDU 13 WACA 45 at 46
From the records I agree with the learned trial Judge the Respondent had proved his case on the balance of probability as required by law.
In conclusion the appeal is dismissed, the judgment of Ahamioje J. delivered on 19/11/2010 is affirmed in its entirety. N30,000 cost against the Appellant.
RAPHAEL CHIKWE AGBO J.C.A: I agree.
OYEBISI FOLAYEMI OMOLEYE J.C.A: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, Shoremi, JCA. I agree that this appeal is bereft of merit. I dismiss it and award the sum of thirty thousand Naira (N30,000.00) in favour of the Respondent and against the Appellant.
Appearances
Chief D. O. Okoh SAN with Mrs. M. M. Fadeyi and Orbiegbo Esq.For Appellant
AND
P. O. Osemwenkha Esq.For Respondent
