EMEMU & ANOR v. EMEMU & ANOR (2022)

EMEMU & ANOR v. EMEMU & ANOR

(2022)LCN/16473(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, May 11, 2022

CA/AS/442/2018

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph EyoEkanem Justice of the Court of Appeal

Abimbola OsarugueObaseki-Adejumo Justice of the Court of Appeal

Between

1. CHIEF GODWIN EMEMU 2. VICTOR EMEMU APPELANT(S)

And

1. MR. OGHONEOVO EMEMU 2. MISS RHODA EMEMU (Acting For Themselves And On Behalf Of The Late Wilfred Ememu Family) RESPONDENT(S)

RATIO:

ESTABLISHMENT OF TITLE ON THE CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land, as in this instance, the burden is on the claimant to establish his title on the strength of his own case and not on the weakness of the defendant’s case although the weakness of the defendant’s case may assist the plaintiff’s case in deserving instances. The onus does not shift to the defendant until the plaintiff discharges the onus on him. See Kodilinye v. Odu (1935) 2 WACA 336, Bello v. Eweka (1981) 1 SC 101 and Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353. JOSEPH EYO EKANEM, J.C.A.

EVALUATION OF EVIDENCE IS THE PRIMARY FUNCTION OF A TRIAL COURT

Evaluation of evidence with the attendant duty of ascription of probative value to it is the primary function of a trial Court and an appellate Court will not disturb findings resulting therefrom if they are supported by evidence on record. It is not the business of the appellate Court to substitute its own view of the facts for the findings of the trial Court. Nevertheless, an appellate Court should ex debito justitiae interfere where there has been a miscarriage of justice as where the judgment on appeal is perverse or is not the result of a proper exercise of judicial discretion or where the trial Court wrongly applied the facts and circumstances of the case or where a wrong conclusion is reached upon such evaluation. This is especially so where the assessment of evidence does not involve credibility of witnesses. See Balogun v. Agboola (1974) 1 All NLR (Pt.2) 66 and Ebba v. Ogodo (1984) 1 SCNLR 372. JOSEPH EYO EKANEM, J.C.A.

THE INTRFERENCE OF AN APPELLANT COURT IN THE INTEREST OF JUSTICE

If a Court disregards such evidence or document; an appellate Court will, in the interest of justice interfere and set aside a finding arrived at in disregard of the relevant and dismissible evidence or wrongful evaluation see EGBARAN VS AKPATOR (1997). on this authority that a party may tender and it shall be relevant and admissible a document intended to rebut a claim but its use shall be for the purpose intended, the Court is enjoined to resort to and evaluate same in determining the case in the face of the pleadings and evidence. This is necessary so as to avoid cloistered justice. JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State sitting in the Otor-Udu Judicial Division (the trial Court) delivered on the 10th day of May, 2018 by C. E. Achilefu, J. In the judgment, the trial Court found in favour of the respondents qua claimants against the appellants qua defendants. The trial Court consequently granted declaratory, injunctive and monetary reliefs against the appellants.

Aggrieved by the decision, the appellants appealed against the same by the means of a notice of appeal filed on the 25th day of May, 2015 which incorporates nine grounds of appeal.

The facts of the case leading to this appeal may be summarized as follows: the appellants are uncles of the respondents. The father of the respondents was the eldest brother of the appellants. The father of the appellants and the grandfather of the respondents was the late Pa. Imawaya Ememu also called Chief Harrison Emoavwoyan Ememu, who owned many landed properties in Warri including the properties in dispute in this matter. He shall hereinafter be referred to as the deceased. He died in 1971 and his landed properties, or some of his landed properties were partitioned among his children based on the number of wives that he had, namely; five wives. The wives all had children or at least a child for the deceased and they are called five gates.

It is the case of the respondents that all the properties in dispute in this matter were partitioned to the gate which their father, the late Wilfred Ememu was of while one of the properties, to wit; No. 19 (now No. 30) McDermott Road, Warri was partitioned to his father. Their father having died, they inherited the said properties especially as their aunt (their father’s direct sister) died childless. It was the case of the respondents that the appellants sought to dispossess them of the said properties.

Consequent upon the foregoing, the respondents took out a writ of summons against the appellants, and eventually in their 3rd amended statement of claim sought the following reliefs against the appellants:
“a). A declaration that claimants are best entitled to the certificate of occupancy of all that pieces or parcels of land in dispute which is the part of the claimant’s late father spacious zinc house that was gutted by fire sometimes in 1984, situate, lying and being at No. 56 Digbori Street, Essi Layout, Warri, in the Warri South Local Government Area of Delta State of Nigeria.
b). A declaration that the Claimants are best entitled to the certificate of occupancy of all that pieces or parcels of land lying, situated at and known as No. 28 and 30 (formally No.19 McDermott Road) and No. 4 Sam Warri Street, Warri.
c). Perpetual injunction restraining the defendants, their servants, agents or privies from interfering with the claimant’s rights and interest in respect of the pieces or parcels of lands (mentioned in paragraphs a and b above) the subject matter of this suit and known to all parties to this suit.
d). N10,000,000.00 (Ten Million Naira) being damages for the oppressive and criminal trespass in the claimants’ pieces or parcels of land mentioned above.”

The appellants met the claim of the respondents with an amended statement of defence in which they averred that of the properties claimed by the respondents, only 58 Digbori Street, Warri was partitioned tothe father of the respondents while some of the deceased’s properties were not partitioned.

After hearing evidence and taking written addresses, the trial Court, as I have already stated, found in favour of the respondents.

In the appellants’ brief of argument settled by L. E. Umukoro, Esq. the following issues have been formulated for the determination of the appeal:
(i) Whether the learned trial Judge was right to have assumed or had the requisite jurisdiction to entertain and determine the case of the respondents not as an appellate Court in spite of the pleadings and/or averments of the appellants particularly paragraphs 7c, 7d and 16 of the amended statement of defence of 6th November, 2017. (Grounds 3, 5 and 8).
(ii) Whether the learned trial Judge was right and not in error when it failed to consider, appraise, refer to and properly evaluate the exhibits tendered and relied upon by the appellants in defence of their case before the lower Court thus resulting in gross miscarriage of justice. (Grounds 1, 4 and 6)
(iii) Whether the learned trial Judge was right to have copiously cited and relied on the superfluous 3rdamended statement of claim dated 11th May, 2017 and filed in contravention of Order 24 Rule 1 of the High Court of Delta State (Civil Procedure) Rules, 2009 by which inadmissible evidence was admitted and heavily relied upon in entering judgment for the respondents. (Grounds 2 and 7)
(iv) Whether it was proper and not academic exercise for the learned trial Court to look for weakness in the appellant’s case and to further go on a voyage of discovery by acting a Father Christmas as not confining itself to the real issues in controversy between the parties to ultimately find in error for the respondents. (Grounds 9) “

In the respondents’ brief of argument settled by Peterson Osiobe, Esq. the following issues have been identified for the determination of the appeal:
(1) Whether the learned trial Judge properly evaluated the evidence and made good and legal use of the opportunity of seeing and hearing the witnesses in the evaluation of the evidence before him and in his ascription of the value to same.
(2) Whether the learned trial Judge made findings on material facts based on the claim before him.
(3) Whether the Urhobo Native Law and Custom applicable to Agbara-Warri is not applicable to the distribution of the estate of the respondents’ father who died intestate.

Let me quickly observe that respondents’ issues 2 and 3 do not arise from any of the grounds of appeal. The respondents did not file a cross-appeal or respondent’s notice and so they cannot formulate any issue outside the grounds of appeal. Having done so, respondents issues 2 and 3 are incompetent and are liable to be struck out. See Okonkwo v. Ezeaku (2020) 5 NWLR (Pt. 1718) 477, 487-488. I accordingly strike out respondents’ issues 2 and 3.

Having read the grounds of appeal, it is my view that the following issues arise for the determination of the appeal, to wit:
1. Was the suit of the respondents caught by the doctrine of estoppel per rem judicatam?
2. Did the trial Court evaluate or properly evaluate evidence before arriving at its conclusion?
3. Was the trial Court right in relying on the respondents’ 3rd amended statement of claim in determining the suit?

I propose to treat issue 1 first and thereafter consider issue 3 before dealing with issue 2. This is on account of the fact that issue 1 raises issue of jurisdiction of the trial Court to adjudicate on the claim and issue three, if answered in the negative, may impact on the result of issue 2.

I must pause here to state that before the appeal was heard, the 1st appellant died and his name struck out of the appeal on 14/2/2022.

ISSUE 1 –
Was the suit of the respondents caught by the doctrine of estoppel per rem judicatam?
Appellants’ counsel submitted that the trial Court was in error when it held that there was no evidence to prove that the respondents’ father sold No. 4 Sam Warri Street and it was reclaimed by the family. He wondered what could be better proof than the judgment of the Customary Court, Exhibit G1. Counsel also referred to Exhibits G and G2, which are rulings touching on some of the properties in dispute in this matter. It was his further submission that in the absence of an appeal against the ruling in Exhibit G, the trial Court erred in assuming jurisdiction to hear and determine the case of the respondents. He noted that the appellants raised the plea of res judicata and he set out the ingredients of estoppel per rem judicatam. He contended that Exhibits G, G1 and G2 are decisions involving the same parties over the same subject matter and that they estop the respondents from re-litigating the same matter.

I note that respondents’ counsel did not offer any response to the argument of appellants’ counsel on this issue. Indeed, he did not even formulate an issue relating to the grounds from which the appellants’ issue 1 is derived. The conclusion is that he has conceded the issue. Nevertheless, I shall still consider the merits of the issue.

Estoppel is a rule which bars a party to a suit from asserting or denying a particular fact. There are four types of estoppel under the Evidence Act, to wit: estoppel by record, by deed, by agreement and by conduct.

Estoppel by record is also known as estoppel per rem judicatam and is of two kinds, namely: cause of action estoppel and issue estoppel. The former prevents a party to an action from asserting or denying as against the other party the existence of a particular cause of action, the non-existence or existence of which has been determined by a Court of competent jurisdictionin a previous litigation between the same parties. This is rooted in the rules of public policy that there must be an end to litigation and that no one should be vexed twice on the same ground. Issue estoppel is to the effect that within one cause of action there may be several issues raised which are necessary for the determination of the whole case. Once an issue has been raised and distinctly determined between the parties, as a general rule, neither party can be allowed to fight the issue all over again. See Fidelitas Shipping Co. Ltd v. V/O Export chleb (1966) 1 QB 630, 640 and Aguda’s Law and Practice Relating to Evidence in Nigeria,1980 edition pages 282 par. 22-07.

For cause of action estoppel to apply, the following factors must be present:
1. The parties or their privies must be the same in the present case as well as in the previous suit.
2. The issue and subject matter in both suits must be the same.
3. The decision relied upon as constituting estoppel must be valid, subsisting and final.
4. The Court that gave the previous decision must be a Court of competent jurisdiction.
See Ikpang v. Edoho (1978) 6-7 SC 22and Gaba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1.

Issue estoppel may apply though cause of action estoppel is inapplicable. The elements of issue estoppel are:
1. The parties must be the same in the previous suit and the present suit.
2. The same question that was decided in the previous suit must arise in the present suit in respect of the same subject matter.
3. A Court of competent jurisdiction must have determined the issue in a final way.
See Ebba v. Ogodo (2000) 6 SCNJ 100; (2000) 10 NWLR (Pt. 675) 387 and Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 374.

Exhibit G is a certified true copy of the ruling of the Customary Court of Delta State sitting in Warri between the original appellants and another person, and the 1st respondent in suit No. WSACC/M/336/2003 delivered on the 4th day of March, 2004. The parties in the suit are virtually the same with the parties in the instant matter but the issues and the subject matter in the two suits are not the same. In the earlier suit, the issue was the propriety of the grant of letters of administration over the properties in dispute in the two suits to the 1st respondent during the pendency of a case over the properties. The grant of the letters of administration was set aside by the Customary Court on the basis of the doctrine of lis pendens. Therefore, the decision in the Customary Court suit cannot be relied upon as estoppel in respect of the instant matter as the issues and the subject matter in the two suits are not the same.

Exhibit G1 is a certified true copy of the claim and the judgment of the Customary Court of Delta State Sitting in Warri in Suit No. WACC/218/95 between the 1st respondent and his aunt, Ledi Alfred (Mrs) nee Ememu delivered on the 16th day of January, 1997. The claim of the 1st respondent in that suit was for the sharing and account of the rent said to have been collected by Mrs. Ledi on the property at 4 Warri Esi Street. The said Court dismissed the claim of the 1st respondent on the basis that he had lost his right to the property as his father had sold the same and the larger family bought it back from the purchaser, thus making it now the property of the larger Ememu family. The parties in that suit are not the same as those in this suit since the original appellants were not parties thereto. So the doctrine of estoppel per rem judicatam does not apply. However, it must be noted that the appellants pleaded the decision not only as estoppel per rem judicatam but also as a relevant and material fact. I shall return to this in the course of this judgment.

Exhibit G2 is a certified true copy of suit No. W/156/2002 at the High Court of Delta State, Warri Division between the 1st respondent and the original 1st appellant. The suit was withdrawn and struck out and so it cannot constitute estoppel per rem judicatam as rightly held by the trial Court as it was not finally determined by the High Court.

In the light of what I have said above, I enter a negative answer to issue 1 and resolve it against the appellants.

ISSUE 3-
Was the trial Court right in relying on respondents’ 3rd amended statement of claim in determining the suit?
Appellants’ counsel referred to Order 24 Rule 1 of the High Court of Delta State (Civil Procedure) Rules, 2009, and submitted that the effect of the provision is that a party cannot amend his process or pleadings more than three times altogether from the time of filing the originating process to the close of the case or before judgment is delivered. He noted that there are two different 3rd amended statements of claim after several others had been struck out. He described the 3rd amended statement of claim filed on the 11th day of May, 2017 as superfluous and stated that it resulted in the recall of the 1st respondent at the trial Court to give further and additional evidence which strengthened the respondents’ case, and which was copiously cited and relied upon by the trial Court.

It was counsel’s further contention that the 3rd amended statement of claim changed the nature of the case of the respondents and was amended mala fide. He posited that the amendment resulting in the said process was overreaching and prejudicial to the appellants. He gave his reasons for his position including the assertion that it led to the admission of Exhibits A and B which he said were documents made by a person interested during the pendency of the case contrary to Section 83(3) of the Evidence Act.

Counsel for the respondents did not respond to the argument presented by appellants’ counsel on this issue and so he is deemed to have conceded it. However, I shall still consider the issue on its merits.

The 3rd amended statement of claim that is the subject of this issue was filed on the 11th day of May, 2017 though it is dated the 8th day of May, 2017. It is copied at pages 113-118 of the record of appeal. I have searched but in vain in the record for the proceedings in which the Court granted leave for it to be filed. It is however clear that the trial Court granted leave for the amendment and the filing of it. At the foot of the said process at page 117 of the record, it is stated that it was amended pursuant to the order of the trial Court made on 29th day of July, 2016. This obviously is an innocent error as it is clear that the order for the amendment was made in 2017 and the same, as I have already stated, was filed on 11th day of May, 2017.

So the said process was brought into the suit by an order of amendment granted by the trial Court in 2017.

The order for the amendment was an appealable decision on the authority of Sections 241 (1), 242 (1) and 318 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and the case of Asein v. University of Ibadan(1994) 6 NWLR (Pt. 353) 735, 751. The decision was an interlocutory decision and the same ought to have been appealed against within fourteen days of the decision and with leave of Court since it involved the exercise of the trial Court’s discretion, making any complaint against the grant an issue of mixed law and fact. The notice of appeal was filed on the 25th day of May, 2018, many months after the grant of the order for amendment and it is expressed on the notice that the appeal is against the decision of the Court made of the 10th day of May, 2018. Ground 2 of the grounds of appeal from which this issue is derived and its particulars show that the ground is indeed a complaint against the grant of the application for amendment leading to the filing of the said 3rd amended statement of claim. Though appeals against interlocutory decisions are encouraged to be incorporated in the final appeal, if the time for the filing of the same has effused, an order for extension of time to file the same ought to be applied for and obtained. If the interlocutory appeal involves question of mixed law and fact, leave must also be obtained to file the same before itcan be incorporated in the appeal against the final decision. See Okeke v. Petmag Nig. Ltd (2005) 4 NWLR (Pt. 915) 245, 261, NNB Plc v. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549, 586-587 and Kotun v. Olasewere (2010) 1 NWLR ( Pt. 1175) 411, 429-430 which involved a ground of appeal against the ruling of Court granting an application for amendment in respect of which no leave was obtained.

Ground 2 of the grounds of appeal falls into this category and leave as well as extension of time to appeal not having been sought for and obtained, the ground along with issue 3 is incompetent and I accordingly strike out the same along with the argument in respect thereof.

ISSUE 2 –
Did the trial Court properly evaluate evidence before arriving at its conclusion?
Appellants’ counsel contended that the conclusions reached by the learned trial Judge are not supported by any demonstrable process of reasoning as, according to him, there was an avalanche of contradictions in the appellants’ case. He submitted that the decision of the learned trial Judge was against the weight of evidence presented by the parties including documents tendered as exhibits.

Counsel re-stated the position of the law that declarations are not granted unless on the basis of satisfactory evidence. He set out in numbered paragraphs what he considered as the effect of the perceived errors in the approach of the learned trial Judge. He stated that the learned trial Judge erred when he believed the evidence of the 1st respondent that No. 56 Digbori Street is not separate and distinct from No. 58 Digbori Street. He posited that the trial Court decided issues that were not placed before it such as the reasoning of the Court that there was no evidence of other properties given to the respondents’ father and the other properties of the deceased that were said not to have been partitioned by the appellants.

Counsel for the respondents submitted that the learned trial Judge properly evaluated evidence before him and made good use of the opportunity of seeing and hearing the witnesses. He therefore urged the Court not to interfere with the evaluation of evidence and the finding of the trial Court. Counsel set out the evidence of the witnesses and contended that No.58 Digbori Street covers No. 56 Digbori Street and thatit was shown that No. 54 Digbori Street was shared to the father of the respondents.

The reply brief of the appellants is but a re-hash of their counsel’s argument in their original brief. I shall therefore discountenance the same.

The trial Court evaluated the evidence before it and arrived at the conclusion that the respondents had proved their case.

The complaint of the appellants in essence is that the trial Court failed to properly evaluate evidence including exhibits tendered before it. Where an appellant alleges that a trial Court did not properly evaluate evidence, it is his duty to identify the evidence that was improperly evaluated or that was not evaluated and also show that if the alleged error is corrected, the conclusion reached by the trial Court would not only have been different but would have been in his favour. See Okpa v. State (2017) 5 NWLR (Pt. 1507)1, 27 and Ozuzu v. Emewu (2019) 13 NWLR (Pt. 1688) 143, 159.

Again in a civil matter, where the finding or non-finding of fact by a trial Court is questioned on appeal, the appellate Court would seek to know:
1. The evidence before the trial Court
2. Whether the trial Court accepted or rejected any evidence on the correct perception.
3. Whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.
4. Whether the trial Court used the imaginary scale to weigh the evidence on either side.
5. Whether the trial Court appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.
See Adeniran v. Ashabi (2004) 2 NWLR (PT. 857) 375, 40 and Nwokidu v. Okanu (2010) 2 NWLR (Pt. 1181) 362, 395.

The complaints of the appellants under this issue may be summarised as follows:
1. The conclusion of the trial Court at pages 205-206 of the record is not supported by any process of reasoning in the light of alleged contradictions in the respondents’ case viz-a-viz the uncontradicted evidence of the appellants at pages 194-196, 198 and 199 of the record – page 13 paragraph 5.3 of appellants’ brief of argument.
2. Exhibits G, G1 and G2 were not properly evaluated thus leading to the finding of the trial Court that no witness was called to testify as to who was present at the partitioning of the properties – page 14 paragraph 5.6 of appellants’ brief.
3. Exhibits E, E1, E2, E3, E4, E5, F, F1, F2 and F3 were “conspicuously considered without any reference at all for proper evaluation, the pleadings and evidence of appellants especially paragraph 7B of the amended statement of defence” – page 16 paragraph 5.10 of the appellants’ brief.

In determining this issue, it is pertinent to state that the finding of the trial Court was not based on the credibility of witnesses but on assessment of evidence before it including oral and documentary evidence.
This Court, as an appellate Court, is in as good a position as the trial Court to assess evidence to see if there is evidence to support the conclusion of the trial Court, in which case it will not interfere in such conclusion. In doing so, I intend to deal with the complaints of the appellant by treating separately or in a related group the properties in respect of which the trial Court held that the respondents had proved their entitlement to.

1. 54 Digbori Street, Essi Layout, Warri.
The trial Court found that the property was partitioned to the father of the respondents. In the whole of the reliefs claimed by the respondents in paragraph 19 of the 3rd amended statement of claim, which I have already set out earlier in this judgment, there is absolutely no claim relating to No. 54 Digbori Street. It is my view that the labour of the learned trial Judge in evaluating evidence in respect of this property was in vain as there is no relief touching on it. What the trial Court did was equivalent to loading and pulling the trigger of a gun that has no nozzle. It was a mere academic exercise and I therefore discountenance it. I shall not plunge into such an exercise as the Court is not set up to consider a moot point.

2. 56 Digbori Street, Warri.
It is common ground that No. 58 Digbori Street was partitioned to the father of the respondents. The issue before the trial Court was whether No. 56Digbori Street is a part of No. 58 Digbori Street. The trial Court gave an affirmative answer to the issue thus resolving it in favour of the respondents. In paragraph 11(a) of the 3rd amended statement of claim, it is averred that No.58 Digbori Street measures approximately 996. 434 square meters and that about 50/100 feet of the land got burnt sometime in 1984 and that the burnt part is now being claimed by the appellants as No. 56. Appellants contended that No. 56 is different from No. 58 and that No. 56 was partitioned to the gate headed by Mr. Victor Ememu.

It is clear that the respondents at the commencement of the case applied for an order of interlocutory injunction in respect of No. 58 Digbori Street, describing the property thus:
“… all that piece or parcel of land known to all the parties to this suit measuring 100 ft. by 50 ft. lying, situate and being at No. 58 Digbori Street Esi Layout, Warri…”

The trial Court granted the relief in the same terms over the said area of land. See Exhibit D.

Again, in the written deposition of the 1st respondent made on the 14th day of January, 2011 (page 17 of the record) which he adopted as his evidence on the 5th day of June, 2014 (page 134 of the record), the 1st respondent gave the dimension of the land as 50 feet by 100 feet. In cross-examination at page 136 of the record, the 1st respondent testified that:
“At the time I initiated this proceedings in Court, the measurement of the whole land is 996. 434 square metres. Yes at the time the order of injunction was made in exhibit D, it was what I presented to Court.”

In other words, the 1st respondent was simply saying that as the time he initiated the action the whole land numbered as 58 Digbori Street measured 996. 434 square meters but at the time he applied for and obtained the order of interlocutory injunction, the land measured 50 feet by 100 feet or 100 feet by 50 feet. My lords, I am perplexed by this fluctuation in the dimension of No. 58 Digbori Street on the part of the 1st respondent. I pray thee my lords, how did No. 58 Digbori Street grow from 100 feet by 50 feet to 996.434 square meters and then decrease to the former between the filing of the suit and the application for and the grant of the order of interlocutory injunction? MaybeI will understand this wonder by and by but for now, it does not fit into logic.

There is no acceptable evidence to support the conclusion of the trial Court that No. 56 Digbori Street forms part of No. 58 Digbori Street. Indeed, evidence on record shows the contrary and supports the case of the appellant that No. 56 is different from No.58 and that the former was partitioned to the gate headed by Mr. Victor Ememu. The trial Court erred in holding that the appellant did not call any witness who was present during the partitioning to prove that the property at No. 58 was partitioned to his gate. It was not the case of the appellant that No. 58 was partitioned to his gate. Rather, the case of the appellants was that the property at No. 56 which is not a part of No. 58 was shared to his gate and the original 1st appellant testified to that effect as a person who was present at the partitioning.

Again, the reasoning of the learned trial Judge that the original 1st appellant did not name other properties shared with the father of the respondents is irrelevant to the controversy as those other properties were not in dispute. Again, the learned trial Judge did not give any reason why he found it difficult to believe the evidence of the appellants to the effect that not all the properties of the deceased person were shared. It is not enough for a trial Court to simply say in a magisterial or imperious manner that it believes, does not believe or it finds difficult to believe evidence; it must give its logical reasons for saying so.
Being perverse, I hereby interfere to set aside the finding of the trial Court.

3. 28 McDermott Road, Warri.
The trial Court found that No. 28 McDermott Road was inherited by the respondents’ father as the eldest son of the deceased person. The finding is impeccable as it is supported by evidence on record from both sides. It was the last residence of the deceased person and it is not in dispute that by the native law and custom of Igbudu, Urhobo, upon the demise of a man, his eldest son inherits the house where he resided at the time of his death.

4. 30 (formerly 19) McDermott Road, Warri.
It must be borne in mind that the burden of proof was on the respondents to show by satisfactory evidence their entitlement to the declaration sought in respect of the property. The evidence given by the 1st respondent was hearsay as he admitted that he was not present during the partitioning of the properties of the deceased person but that his father told him how the properties were partitioned. His evidence being given to prove the truth of its content amounted to hearsay and the trial Court erred in relying on it. See Section 38 of the Evidence Act. The conclusion of the trial Court not being supported by evidence on record cannot stand. I therefore set it aside.

5. 4 Sam Warri Street.
There is evidence from both sides that the property at 4 Sam Warri Street was partitioned to the respondents’ father’s gate and so the burden fell on the appellants to show how the respondents became divested of it. It was the case of the appellants that the property had been dealt with by a Court of competent jurisdiction. The appellants pleaded suit No. WAAC/218/95 in this regard, among others.

I have already given the particulars of the certified true copy of the judgment in this suit, which is Exhibit G1. It is copied at pages 87-90 of the record of appeal. At page 89 of the record, the Customary Court foundin regard to this property that the father of respondents had sold it to a stranger and the larger family bought back the same. It found in respect of the 1st respondent and his father’s gate’s entitlement to it as follows:
“By the sales, as was indicated in Exhibit “F” plaintiff has lost his right to the property. One cannot eat his cake and have it.
Again since it was clear that it is the family as could be seen from Exhibits “A” to “E” that retrieved the property from the purchaser, the property should certainly revert to the family who will decides (sic) what to do with it. The plaintiff can only share from the property merely because he is a member of the family but certainly not because it belongs to his late father’s and defendant.”

Undoubtedly though the 1st respondent was a party to the proceedings in Exhibit G1, the appellants were not parties to it but the decision was pleaded by the appellants as a relevant fact ostensibly to disprove the respondents’ claim to title over the property and to support the case of the appellants. What is the effect of this? A similarsituation arose in the case of Egbaran v. Akpotor (1997) LPELR-1029 (SC) also reported in (1997) 7 SCNJ 312. The appellants in that case contended that Exhibit D tendered by the respondents was not relevant to the suit as the parties, the subject matter and issues were not the same in the two suits. The Supreme Court held to the contrary, reasoning that:
“Exhibit D was tendered to support the oral testimony given by the respondents to discredit the appellants’ traditional history …Clearly it was not tendered as res judicata or estoppel and it was not so pleaded. On the issue or the purpose for which it was therefore tendered and received in evidence Exhibit D was therefore relevant and material.”

The learned trial Judge did not refer to or consider Exhibit G1 before arriving at the conclusion that No. 4 Sam Warri Street belonged to the respondents. This failure affected the conclusion of the trial Court and led to a miscarriage of justice. I therefore interfere to reverse the finding of the trial Court in respect of the property under review.

For the avoidance of doubt and for the purpose of clarity, I find theevaluation of evidence and finding of the trial Court impeccable and supported by evidence in respect of 28 McDermott Road, Warri. The finding therefore stands.

In respect of the following properties, I find the evaluation of evidence and conclusion of the trial Court to be unnecessary and/or wrong and perverse:
1. No. 54 and 56 Digbori Street, Warri.
2. No. 30 (formerly 19) McDermott Road, Warri and
3. 4 Sam Warri Street, Warri.

I therefore interfere with the same and set aside the findings of the trial Court thereon.

I enter both a negative answer to issue 2 in respect of the properties numbered as 1, 2 and 3 immediately above and an affirmative answer in respect of the property at 28 McDermott Road, Warri.

On the whole, the appeal succeeds in part and is allowed in part. The judgment of the trial Court in respect of No. 54 and 56 Digbori Street, Warri, No. 30 (formally No. 19) McDermott Road, Warri and 4 Sam Warri Street, Warri are hereby set aside and the claim of the respondents in respect of the properties is dismissed.

The judgment of the trial Court in respect of 28 McDermott Road, Warri is hereby affirmed.

The award of N1,000,000.00 as damages against the appellants is hereby set aside since the only specific allegation of trespass is in respect of No. 56 Digbori Street and the finding of the trial Court in that respect has been set aside. Again, there is no specific allegation or evidence of trespass as regards No. 28 McDermott Street.
The parties shall bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read in draft, the lead judgment delivered by my learned brother JOSEPH EYO EKANEM, JCA, in this appeal, I concur by adopting analysis of the issues as made and agree that the appeal should succeed in part only.

The issue no 2 of the appellant is to me the kernel of the issues and determines the essential grievance and thus is the pith of the case of the Appellant. It relates to the question whether the trial Court properly evaluated the evidence before arriving at its conclusion.

Evaluation of evidence is based on the oral and documentary evidence before the Court. It is the prerogative of the trial Court to so do; and an appellate Court will not ordinarily interfere, except where miscarriage of justice has been shown to have beenoccasioned.

In the evaluation of evidence, the trial Judge based his findings and decision not on the demenour of witnesses but on the oral and documentary evidence before it.
On this, an appellate Court is in a good position as the trial Court in assessing such evidence and to come to its decision after the evaluation.

There was ample evidence before the trial Court in respect of the properties such that the Court was bound to rely on same; in this case in the nature of a document to prove the pleadings of the party relying on same, i.e. the Respondent.
If a Court disregards such evidence or document; an appellate Court will, in the interest of justice interfere and set aside a finding arrived at in disregard of the relevant and dismissible evidence or wrongful evaluation see EGBARAN VS AKPATOR (1997). on this authority that a party may tender and it shall be relevant and admissible a document intended to rebut a claim but its use shall be for the purpose intended, the Court is enjoined to resort to and evaluate same in determining the case in the face of the pleadings and evidence. This is necessary so as to avoid cloistered justice.

On the whole, my learned my brother has fairly and justly jettisoned the Grounds of Appeal and issues that do not spring from the judgment or the Notice of Appeal as the case may be; and upon a proper re-evaluation of the evidence led allowed the appeal in part.

I concur and abide by all the consequential orders as made in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the honour of reading before now, the judgment just read by my lord JOSEPH EYO EKANEM, JCA, and I entirely agree with the well thought out reasoning and conclusion therein. He has covered the field and I have nothing to add.

Appearances:

L. E. UMUKORO, ESQ, For Appellant(s)

PETERSON OSIOBE, ESQ, For Respondent(s)