EMMANUEL EBELE v. AUGUSTINE EBELE (2013)

EMMANUEL EBELE v. AUGUSTINE EBELE

(2013)LCN/6383(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of July, 2013

CA/E/258/2008

RATIO

EFFECT OF EVIDENCE LED ON UNPLEADED FACTS

It is the law that pleadings constitute the foundation of an action in court, they define the issues in the case and are binding on the parties themselves and the court as well. It is therefore firmly established that any evidence led on unpleaded facts will go to no issue at the trial. See ADELEKE v. IYANDA (2001) 13 NWLR (PT. 729) 1: ADENIRAN v. ALAO (2001) 18 NWLR (PT. 745) 361: OSHODI v. EYIFUNMI (2000) 7 SC (PT. 11) 145: MAKINDE v. AKINWALE (2000) 1 SC 89; OBINECHE v. AKUSOBI (2010) ALL FWLR (PT. 533) 1839; OKOLO v. DAKOLO (2006) ALL FWLR (PT. 336) 201, (2006) NSCQR (VOL. 27) 259. PER ISAIAH OLUFEMI AKEJU, J.C.A.

DUTY OF COURT: EVALUATION OF EVIDENCE

The guiding principle in the evaluation of evidence in a civil case as well stated in MOGAJI v. ODOFIN (1978) 4 SC 91 is that the court should put the totality of credible and conclusive evidence adduced by both parties on an imaginary scale, weigh them together and accept the one that outweighs the other. See also OLUFOSOYE v. OLORUNFEMI (1989) LPELR-2615 and NIGERIAN CIVIL AVIATION & ANOR (1991) 7 SCNJ 1. PER ISAIAH OLUFEMI AKEJU, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

Between

EMMANUEL EBELEAppellant(s)

AND

AUGUSTINE EBELERespondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A.: (Delivering the leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, sitting at Awka delivered on 20/2/2006 in respect of suit No. A/3/2000 commenced by the Respondent for the reliefs stated in paragraph 18 of the Statement of Claim filed on 7/6/04 as follows:-
“(a) A declaration that the plaintiff is entitled to the statutory right of occupancy over the compound of Late Isaac Ebele situate at Uruogbogu, Ezira Village, Nimo within the Awka capital territory as per Survey plan No. AGU/D.09/2009 filed with this Statement of Claim.
(b) N2,000,000.00 (Two Million Naira) damages for trespass.
(c) An order for partition of the landed properties of Late Isaac Ebele between the plaintiff, the defendant and Chizoba Pius Ebele.
(d) An injunction restraining the Defendant from further trespass or interfering with the rights of ownership of the plaintiff over the compound of Late Isaac Ebele.”
The appellant as the defendant filed a Statement of Defence that was amended by the Amended Statement of Defence filed on 14/10/2005 wherein the claim of the respondent was denied, while the respondent filed a Reply to the Amended Statement of Defence on 9/12/2005.
At the trial of the suit, the respondent as plaintiff called four witnesses as PW1 – PW4 while the appellant called three witnesses (DW1 – DW3) in defence, and in the judgment delivered by Hon. Justice M. I. Onochie, on the aforesaid date, the reliefs sought by the respondent were granted with N10,000.00 costs.
Dissatisfied with the judgment, the appellant filed Notice And Grounds of Appeal on 12/5/06 with five grounds of appeal in commencement of this appeal and subsequently filed the Appellant’s Brief of Argument on 18/7/08 which was settled by Chief O. B. Onyali, SAN while the Respondent’s Brief of Argument prepared by Emmanuel O. Achukwu of Counsel was filed on 17/12/10 but deemed properly filed on 10/05/11. The appellant formulated the following as the issues for determination in this appeal;
1. Whether the trial High Court properly evaluated the evidence presented before it as to the entitlement of the plaintiff/respondent to the land in dispute.
2. Whether on the evidence the court below was right in granting rights of inheritance to Pius Chizoba Ebele (P.W.3) over the estate of Late Isaac Ebele.
The respondent fully adopted the above two issues formulated by the appellant.
The parties to this action are sons of one Isaac Ebele (now deceased) of Uruogbogu Ezira Village, Nimo within Awka capital territory in Anambra State, the respondent being the elder of the two. The land in dispute was owned by the Late Isaac Ebele and the respondent had claimed that as the eldest son, otherwise called the “diokpala” of his father, he was entitled to inherit the land in dispute which is the homestead or “Obi” or “Obu” of his father in accordance with the customary law of Nimo people which the father had also given to him as a gift before his death. It was also the claim of the respondent that by the custom of Nime people, one Chizoba Pius Ebele, a child born by a woman given to the family by the family of one Christopher in atonement for the killing of Pius Ebele, another son of the Late Isaac Ebele was entitled to the share of the late Pius Ebele in the property of Isaac Ebele.
While not disputing that the respondent as the first son of Isaac Ebele was entitled to the homestead of their late father under the custom of Nimo people, the appellant denied the claim that the land in dispute was the homestead of their father which according to the appellant, was another compound where the Late Isaac Ebele lived and begat all his children before he relocated to the land in dispute. The claim by the respondent that the land in dispute had been given to him as a gift intervivos by the Late Isaac Ebele was also denied by the appellant.
Thus the issues raised in the instant appeal are about the true homestead or obi of the Late Isaac Ebele and whether a gift intervivos thereof had been made to the respondent as well as the rights of Chizoba to inherit any part of the estate of Late Isaac Ebele.
In the argument of the first issue raised in the Appellant’s Brief of Argument, the learned SAN submitted that the respondent had the burden by virtue of Sections 135, 136 and 137 of Evidence Act of proving that the Late Isaac Ebele gave the land in dispute to him during his (Isaac Ebele) lifetime, and that the land in dispute was the homestead (Obi) of the Late Isaac Ebele. Also that by virtue of Section 14(1) Evidence Act, the issue of Customary Law is a question of fact to be proved by the person alleging its existence. It was further submitted that in a land dispute, the plaintiff succeeds on the strength of his case and not on the weakness of defence. The cases of AGBARA v. AMARA (1995) 7 NWLR (PT. 410) 712 and NGENE v. IGBO (2000) 4 NWLR (PT. 651) 131 were cited and relied upon.
On whether the Late Isaac Ebele gave the land in dispute to the respondent in his lifetime, it was the contention of the Senior Counsel that the pleadings of the respondent thereon was self contradictory in paragraph 10 of the Statement of Claim and paragraph 2a of the Reply to the Amended Statement of Defence which are mutually inconsistent, but the trial court failed to take note of this inconsistency. On the evidence adduced on this point, it was argued that only the PW4 gave evidence of intervivos transfer of land to the respondent by the Late Isaac Ebele but that evidence is not sufficient to find in favour of the respondent on that point, citing OKERENGWO v. IMO STATE EDUCATION BOARD (1989) 5 NWLR (PT. 121) 295.
On which of the two locations allegedly occupied by the Late Isaac Ebele was his Obi or Obu, the learned SAN contended that Customary law being a matter of fact, it was incumbent on the respondent to prove by evidence that a place occupied by a person can cease to be his homestead because he has built another compound, and the respondent failed to adduce this evidence.
It was submitted that a court must in its judgment consider the issues properly raised and heard in a case and before coming to decision as to which evidence it accepts or rejects, the court should first of all put the totality of the evidence on an imaginary scale. It was submitted also that in a land suit, the plaintiff succeeds on the strength of his case and not on the weakness of the defence, citing MOGAJI v. ODOFIN (1978) 3-4 SC 91; TANGLE TRADITIONAL COUNCIL v. FAWU (2001) 17 NWLR (PT. 742) 293, and NGENE v. IGBO (2000) 4 NWLR (PT. 651) 131. According to the learned SAN, the trial court failed to consider these principles in its decision and did not properly evaluate the evidence before it on the entitlement of the respondent to the land in dispute.
On the second issue, it was contended that Pius Chizoba Ebele the child born by the woman that was given to Ebele family in atonement for the killing of Pius Ebele does not qualify as the son of the Late Pius while the mother cannot be treated as the wife of the Late Pius because a dead person cannot marry and bear children, marriage being for the living and not for the dead, citing OKONKWO v. OKAGBUE (1994) 9 NWLR (PT. 368) 391 to submit that the custom allegedly relied upon by the respondent in this regard is repugnant to natural justice and is against public policy as a result of which it cannot be enforced.
It was finally submitted on this issue that the trial court could not have made any order or award in favour of Chizoba Ebele who is not a party to this action or to grant right of inheritance to him.
The respondent’s argument on issue one is that his claim is that the disputed land in this case was the homestead (Obi or Obu) of Late Isaac Ebele as pleaded in paragraph 4 of the Statement of Claim and that Isaac Ebele founded his homestead on the land, lived there, died there and was buried on the disputed land which land his father gave to him (respondent) under the custom and tradition of Nimo people, and the basis for his entitlement to the land in dispute is that it is the eldest son of a man that is entitled to inherit his homestead or Obi. The gift given to him by his father was in confirmation of the fact that the land was the homestead of his father and in fulfillment of the custom of Nimo.
It was contended that the respondent however led credible and uncontradicted evidence that the land in dispute was the Obi of his Late father and that a gift thereof had been made to him by his father. It was submitted that a finding of fact made by a trial court based on the evidence adduced, and which is neither perverse nor has occasioned a miscarriage of justice will not be disturbed by the appellate court; OKOTIE-EBOH v. MANAGER (2004) 12 SCNJ 139; OGBU v. STATE (2007) 28 WRN 1; AKANNI v. OLANIYAN (2008) 47 WNR 166; GATEWAY BANK v. ABOSEDE (2002) 1 WRN 135.
It was contended that there is no inconsistency between paragraph 10 of the Statement of Claim and paragraph 2a of the Reply to Amended Statement of Defence.
On whether the land in dispute was the homestead of his father, the respondent contended that PW1 – PW4 who are all members of Ebele family testified to that effect, and after evaluating the evidence of the parties, the court preferred the evidence of the respondent to that of the appellant and his witnesses and made a finding of fact thereon that the land in dispute was the homestead of Isaac Ebele which finding this court will have no reason to disturb: ALL NIGERIAN PEOPLES PARTY (ANPP) v. PDP (2006) 31 WRN 37.
On issue No. 2, it was argued that there was no dispute that Isaac Ebele, the father of the two parties had another son named Pius Ebele who was killed by gunshot from one Christopher, and in atonement for this killing, the family of Christopher gave out one of their daughters to Ebele family which daughter lived with the respondent as husband and wife and gave birth to Puis Chizoba Ebele not as a son of the respondent, but as a son of the late Puis Ebele.
Respondent’s Counsel submitted that the trial court’s finding that Chizoba who testified as PW3 should be treated as an offspring of Late Pius Ebele ought not to be disturbed having been based on credibility and demeanour of witnesses, as doing so will amount to granting the appellant a relief he has not sought while the same Chizoba will be disinherited contrary to Section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999.
At the hearing of the appeal the learned Counsel for the parties adopted their respective Brief of Argument and relied thereon for the prayers they had sought.
The first issue in this appeal is the evaluation of evidence by the trial court particularly with regard to the entitlement of the respondent to the land in dispute.
After analysing the material facts of the case, the learned trial judge identified the two issues for determination to be the following:-
(i) Whether the Late Isaac Ebele granted the area shown verged green in the Defendant’s plan to the Defendant as his Ana Obu (homestead) and the land in dispute to the plaintiff.
(ii) Whether the land in dispute was the Obu of Late Isaac Ebele.
The trial court resolved the above two issues in favour of the respondent, and at page 61 of the record it stated that “I therefore find as a fact that the land in dispute is the Obu of Late Isaac Ebele and the exclusive inheritance of the plaintiff.”
The law is settled that the duty of evaluation and assessment of evidence as well as ascription of probative value thereto are primarily within the province of the trial court which alone had the exclusive opportunity of seeing the witnesses, hearing their testimony and observing their demeanour. The appellate court that does not have the same privilege as the trial court does not ordinarily interfere with the evaluation of evidence by the trial court and can only do so where the trial court has failed to evaluate the evidence or has shown a misapprehension of the facts or has drawn wrong conclusions thereby arriving at a perverse decision.

Where therefore the trial court has satisfactorily carried out the evaluation of evidence and has appraised the facts, an appellate court will have no business to interfere merely to substitute its own view for that of the trial court. See IRICI v. ERHURHOBORA (1991) 3 SCNJ 1, (1991) 3 SC 1; ABASI v. EKWEALOR (1993) 6 NWLR (PT. 302) 643; UBN PLC v. BORINI PRONO CO. LTD (1998) 4 NWLR (PT. 547) 640; ENANG v. ADU (1981) 11-12 SC 25; ARE v. IPAYE (1990) 3 S.C. (PT. 11) 109: FOLORUNSO v. ADEYEMI (1975) NMLR 128: and OSHE v. OKIN BISCUITS LTD. (2010) 11 NWLR (PT. 1206) 482.The learned trial judge has in my view properly and satisfactorily carried out the evaluation of the evidence of the parties in this case and this court should not disturb the findings and conclusion by that court.
I resolve this issue against the appellant.
On issue No. 2, the learned trial judge at page 62 of the record of appeal stated that “I must add the validity of the Nrachi custom of the people of Nimo was not made an issue in this case.” (sic). I should state that I have had a firm look at the pleadings of the parties and it is clear that the plaintiff claimed in paragraph 18 (c) for an order for partition of the landed properties of Late Isaac Ebele between the plaintiff, the defendant and Chizoba Pius Ebele, and stated the following facts in paragraph 8, 9 and 13 of the Statement of Claim as follows:-
“8. Pius Ebele died in about 1963 as a result of gunshot received from one Christopher of Trumkpoke Village, Nimo with whom he was quarrelling in Mid-Western Region (now Delta State).
9. The said Christopher married a wife in the name of Pius Ebele who begat a son for Pius called Chizoba Pius Ebele.
13. Chizoba Pius Ebele has not been given land for homestead up till now. When the plaintiff wanted to give the said Chizoba Pius Ebele land for homestead, the Defendant refused, claim that he is a stranger to the family.”
In the Amended Statement of Defence, the appellant answered the above statement of the respondent as follows:-
“5. The Defendant does not deny paragraphs 6, 7 and 8 of the Statement of Claim. With respect to paragraph 9 of the Statement of Claim, the Defendant avers as follows:-
(i) After the death of Pius Ebele, Late Isaac Ebele (his father) insisted that the assailant – Christopher’s family should produce a female under the Nimo custom known as “Erachi.”
(ii) Pursuant to paragraph 6(1) (supra) one Victoria was brought to Late Isaac Ebele who handed over to the plaintiff.
(iii) The plaintiff and the said Victoria lived as husband and wife and the union produced a son called Chizoba.
9. With respect to paragraph 13 of the Statement of Claim the Defendant repeats paragraph 6 (iii) of the Statement of Defence and further states that Chizoba is entitled to a portion of the plaintiff’s own share of Late Isaac Ebele’s land…”
It is the law that pleadings constitute the foundation of an action in court, they define the issues in the case and are binding on the parties themselves and the court as well. It is therefore firmly established that any evidence led on unpleaded facts will go to no issue at the trial. See ADELEKE v. IYANDA (2001) 13 NWLR (PT. 729) 1: ADENIRAN v. ALAO (2001) 18 NWLR (PT. 745) 361: OSHODI v. EYIFUNMI (2000) 7 SC (PT. 11) 145: MAKINDE v. AKINWALE (2000) 1 SC 89; OBINECHE v. AKUSOBI (2010) ALL FWLR (PT. 533) 1839; OKOLO v. DAKOLO (2006) ALL FWLR (PT. 336) 201, (2006) NSCQR (VOL. 27) 259.It is clear that from the pleadings of the parties, the validity of the Nrachi (or Erachi) custom now made an issue in this appeal was not placed before the trial court and there was no decision thereon by that court. It therefore constitutes a fresh issue in the appeal.
An appeal is not an inception or commencement of a fresh action, it is rather a continuation of the action already commenced and somehow decided at the trial court and the appellate court is called upon to review such a decision. An appellant is generally not permitted to raise on appeal an issue not raised, tried and decided upon at the court of trial except with the leave of court. See OREDOYIN v. AROWOLO (1989) 4 NWLR (PT. 114) 172; BABALOLA v. STATE (1989) 4 NWLR (PT. 115) 264; BANKOLE v. PELU (1991) 8 NWLR (PT. 211) 523; KOYA v. U.S.A. LTD. (1997) 1 NWLR (PT. 481) 251; OKONKWO v. OGBOGU (1996) 5 NWLR (PT. 449) 420; EFET v. INEC (2011) LFELR-8109.I am in agreement with the learned trial judge that the validity of the Nrachi custom now being canvassed by the appellant was not an issue at the trial, and by virtue of the position of law as stated above, it cannot also form an issue before this court.
I therefore resolve this second issue also against the appellant, and having so resolved the two issues, it is my conclusion that the appeal is devoid of any merit, and it is dismissed with N30,000.00 costs to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read before now the lead judgment of my learned brother, ISAIAH O. AKEJU, JCA for which I am in total agreement that this appeal is unmeritorious and ought to be dismissed. For the reasons adumbrated in the lead judgment and the conclusion therein which I adopt as mine, I also dismiss this appeal. I abide by all the consequential orders made therein, that relating to costs, inclusive.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, ISAIAH OLUFEMI AKEJU, J.C.A. I am in complete agreement with the reasoning and conclusions therein. I also hold that the appeal lacks merit. I also dismiss it. The appellant shall pay cost of N30,000 to the respondent.

Appearances

Chief O. B. Onyali, SAN with C. Aniemena and O. J. ObiFor Appellant

AND

Emmanuel Achukwu with Jide OkongwuFor Respondent