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IGHIWIYISI v. IZEKOR (2022)

IGHIWIYISI v. IZEKOR

(2022)LCN/16843(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Tuesday, December 20, 2022

CA/B/400/2010

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Between

MR. SOLOMON OSARHIEMEN IGHIWIYISI APPELANT(S)

And

MR. ERIC IZEKOR RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON HOW EVIDENCE OF AN INCONSISTENT WITNESS SHOULD BE TREATED

The law is clear on how the evidence of an inconsistent witness should be treated. This is a case where previous evidence in a previous proceeding was used to contradict him. This is to test the witnesses’ testimony.
This procedure was examined upon by ADEMOLA, JSC (as he then was) in ARIKU & ANOR V. AJIWOGBO(1962) LPELR – 25039 (SC) thus:
“Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying but evidence used for this purpose does not become evidence in the case in hand for any other purpose.”
Also in MADUMERE & ORS V.OKAFOR & ORS (1996) 4 NWLR PART 445 p. 637 OGWUEGBU JSC. had this to say on this procedure;
“a previous inconsistent statement can be put to a witness in a cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its content. The fact that the statement was made and is inconsistent with the witnesses’ testimony in the present proceeding is significant.” See also Section 233 (c) of the Evidence Act 2011. PER AWOTOYE, J.C.A.

WHETHER OR NOT RECORDS OF APPEAL ARE PRESUMED CORRECT UNLESS THE CONTRARY IS PROVEN

I am not unmindful of the contention of the Appellant that the lower Court failed to consider that the plaintiff denied ever stating the year 1975 ascribed to him as the year the committee was set up. In other words, the plaintiff at the lower Court attempted to challenge the accuracy of EXHIBIT J. But the procedure for doing so is settled. See SOMMER & ANOR V. F.H.A (1992) 1 NWLR PART 219 P.548.
According to OMO JSC.; in SOMMER’S case (supra) an affidavit has to be filed. See also IDAKULA vs. RICHARDS (2001) 1 NWLR (pt. 693)111.
In ADEGBUYI VS. APC & ORS (2015) 2 NWLR (PT.1442) 1, FABIYI, JSC. explained this procedure this way:
“It is incumbent on the appellant to realise that the Court and the parties are bound by the record of appeal as certified and it is presumed correct unless the contrary is proved. A party who challenges the correctness of the record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. Such affidavit must be served on the Judge or registrar of the Court concern.”
It is clear from the above that the Appellant left undone what he ought to have done. He did not successfully challenge the record of proceedings used to contradict him. The lower Court therefore had no option other than to believe that he was not truthful in his evidence before it. PER AWOTOYE, J.C.A.

THE POSITION OF LAW ON THE CREDIBILITY OF WITNESS TESTIMONY

According to BASHIR WALI JSC in AYANWALE & ORS vs. ATANDA (1988) 1 NWLR (PART 68) p. 22
“Adjudication on any matter before a Court of law is not an easy matter. Cogency of evidence led depends on a series of factors the most important of which is the credibility of witnesses in oral testimony. The credibility of witnesses is enhanced if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to his testimony either from independent witness or from previous testimony on oath of the witness himself. If the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value”
PER AWOTOYE, J.C.A.

TUNDE OYEBAMIJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by 9th Plaintiff/Appellant against the judgment of High Court of Justice, Afuze in Edo State in suit No.B/84/2002 delivered on 01/06/2010.

By paragraph 18 of his third Amended Statement of claim, the plaintiff claims as follows:
“Whereof the Plaintiff claims against the Defendant as follows:
a. A DECLARATION that the plaintiff as holder under the Bini Customary Land Tenure System of Oba’s approval dated 3/3/72, over a parcel of land measuring 100ft by 200ft, located at Egba Village, ward 34/F Idogbo Area, Benin City, is the owner of the said plot of land and the person entitled to apply for and be granted a statutory Certificate of Occupancy over the said land.
b. A DECLARATION that the unauthorised entry of the Defendant sometimes in the month of September 1996, onto the said parcel of land to commence erection of a building thereon is a trespassory violation of the plaintiff’s property rights in the said parcel of land.
c. The sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) only, being general damages for Defendant‘s act of trespass onto Plaintiff’s parcel of land herein made the subject matter of this suit.
d. A MANDATORY ORDER OF INJUNCTION directing the Defendant to vacate any portion of the land in dispute, possession of which he held by the Defendant in violation of plaintiff’s property interest in same.
e. AN ORDER OF COURT given possession to the plaintiff in respect of parcel of land described in paragraph A above.
f. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant from further act of trespass onto plaintiff’s parcel of land herein made the subject matter of this suit.”

Parties filed and exchanged pleadings. After hearing the parties the learned trial Judge entered judgment against the Plaintiff in the following terms:
“The conclusion to which the totality of the foregoing propel me is that the Plaintiff in the instant case has failed to discharge the burden on him to prove his entitlement in any of the reliefs he claims by the credible evidence. In ELEGUSHI VS. OSENI (2005) 14 NWLR PT. 945 P 348 AT 368. The Supreme Court held that where Plaintiff fails to make out a prima facie case against the defendant at the trial in this case of ownership of, and title to land the defendant does not need to answer him on his defence, especially where the defendant does not counterclaim against the plaintiff. See also IROAGBARA VS. UFOMADU (2009) 11 NWLR PT.1153 P. 587 AT 609; BELLO VS. EWEKA (1981) 1 SC 101 AND LAWSON VS. AJIBULU (1997) 6 NWLRN PT. 507 PG. 14.
In the whole circumstances of this case, I find and hold that the plaintiff has not established by credible evidence his entitlement to the reliefs he seeks and I find it unnecessary to advert any further to the case of the defendant who has made no counterclaim. The plaintiff’s suit is accordingly dismissed in entirely.
Cost to the defendant is assessed and fixed as N10,000.00 (Ten Thousand Naira).”

Aggrieved by the above decision the plaintiff (now the Appellant) appealed to this Court.

The 2nd Further Amended Notice of Appeal filed on 12/11/2021 filed by the Appellant contains four grounds of appeal which read thus:
GROUNDS OF APPEAL
GROUND ONE
The judgment is against the weight of evidence.
GROUND TWO
The learned trial Judge erred in holding that the contradiction in the evidence of PW1 and PW2 with their previous testimony as to the date of the formation and their appointment into the plot allotment committee was fatal to the Appellant’s case.
GROUND THREE
The learned trial Judge erred in failing to evaluate critically the evidence established by the parties before Court in determining in whose favour the said evidence preponderates.
GROUND FOUR
The learned trial Judge erred in failing to follow the decision of the Supreme Court in the case of Owie V. Ighiwi (2005) 15 NWLR (Pt. 917) 184 at page 205-206 paras. B-B, 223 paras. B-C, where the Apex Court held that the same plot committee chaired by Solomon Ighiwi (The Respondent in that case and Appellant herein) was the only valid Plot Allotment Committee for Egba Village that enjoyed the recognition of the Oba of Benin.

After transmission of the record of appeal to this Court parties filed and exchanged briefs of argument.
Dr. Osagie Obayuwana learned counsel for the Appellant prepared Appellant’s Brief of Argument.

​On 19/01/2022 learned counsel filed further Amended Appellant’s Brief Argument which was deemed properly filed on 16/06/2022.

Learned Counsel donated three issues for determination as follows:
ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN ERROR WHEN DESPITE THE APPELLANT’S AND PW2‘S DENIALS THE JUDGE ACCEPTED EXHIBIT J AS CONCLUSIVE ON ACCURACY OF PREVIOUS TESTIMONIES OF BOTH THE APPELLANT AND PW2 IN SUIT NO. B/188/80.
ISSUE 2
WHETHER THE LEARNED TRIAL JUDGE DID ERR WHEN IN EVALUATING THE EVIDENCE HE REFUSED TO CONSIDER THE TESTIMONIES OF APPELLANT’S WITNESSES AND DOCUMENTARY EVIDENCE.
ISSUE 3
WHETHER THE LEARNED TRIAL JUDGE WAS NOT BOUND TO FOLLOW THE DECISION OF THE SUPREME COURT IN THE CASE OF OWIE V. IGHIWI, WHICH DECIDED WITH FINALITY THE RECOGNISED PLOT ALLOTMENT COMMITTEE FOR EGBA VILLAGE.

O.R EDIONWEME on behalf of the Respondent settled the Respondent’s Brief of Argument.

In his Respondent’s Further Amended Brief of Argument filed on 07/07/2022. Learned Respondent’s Counsel formulated one sole issue for determination to wit:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING THE APPELLANT’S CLAIM.

​I shall adopt the sole issue formulated by the Respondent being wide enough for just determination of this appeal.

SUBMISSIONS OF THE COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
ARGUMENT ON ISSUES
Learned Counsel to the Appellant submitted that the writing in issue was not one made by the Appellant in the sense that he signed it. It is the oral testimony by the Appellant put in writing by another person who being human is liable to make mistakes. He cited OKONKWO V. ADIGWU, (1985) 1 NWLR (PT. 4) NWABUEZE V. THE STATE (1988) 4 NWLR (PT.86) 16, Section 231 of the Evidence Act.

Learned Counsel to the Appellant contended that the trial Court ought to have been bound by the decision of the Supreme Court on the issue of the lawful and recognized principle of plot allotment committee for Egba community. He relied on NIWA V. SPDCN LTD (2020)16 NWLR (Pt. 1749) 16 AT 175-176 PARAS H-C RATIO 1. Counsel urged this Court to allow the appeal.

RESPONDENTS’ BRIEF OF ARGUMENT
ARGUMENT ON SOLE ISSUE
Learned Counsel to the Respondent submitted that Appellant denied testifying in that case the committee was set in 1974 and Exhibit J which contained the Appellant’s previous testimony was then tendered without objection.

Counsel finally submitted that the trial Court properly evaluate the evidence before arriving at its decision. He then urged this Court to dismiss the appeal.
I have deeply considered the submissions of learned counsel on both sides.

RESOLUTION OF ISSUES
SOLE ISSUE
WHETHER OR NOT THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING THE APPELLANT’S CLAIM
Before resolving the sole issue, it is necessary to reproduce the relevant portion of the judgment of the lower Court where the pertinent crucial issues were resolved.

The learned trial Judge on pages 75-76 of record of appeal found as follows:
“I have before now referred to the pleadings of the plaintiff and the evidence of the plaintiff and the P W2 in this case and also referred to their denial that exhibit J they testified contrary to their testimony in this case. However, my examination of the previous testimony of the plaintiff in exhibit J to which his attention was duly called by the learned defence counsel, shows that his testimony in this case is inconsistent with his previous testimony in exhibit J. For the avoidance of doubt, in exhibit J the plaintiff testified to the effect that the Plot Allotment Committee was set up in 1975 and that he had been the chairman of the committee since 1975. He also said he did not get any letter of appointment to the Plot Allotment Committee. I need not restate that, contrary to the above previous testimony, he testified in this case that the committee was set up in 1970 and that exhibit B was the letter by which they were constituted into the committee and that he was made the chairman in 1970.
The PW2 also testified in exhibit J and his previous testimony, to the effect that the committee was set up in 1975 and no paper was given to them when they were appointed into the committee, contrary to his testimony in this case. It was on the basis of the above inconsistency in the evidence of the plaintiff and the PW2 that the learned defence urged the Court to hold that the plaintiff’s case is unreliable. In view of paragraph 4-7 of the plaintiff’s 3rd Amended Statement of Claim which constitute the foundation of his action and in which he pleaded his root of title and traced same to the plot allotment committee of his village set up in 1970, and his own chairmanship of the committee from 1970, and exhibit A, (Oba approval) signed by him as the chairman. I have no doubt in my mind that it is central to the plaintiff’s claim whether, in fact, the committee was set up in 1970 or 1975; when he became the chairman; and whether there was a letter such as exhibit B tendered by the plaintiff evidencing their appointment. This is because if the committee was set up 1975 and the plaintiff appointed its chairman in the same year as both the plaintiff ad the PW2 stated in exhibit J, the committee could not have recommended the allocation of any plot to the Oba in 1971 as exhibit A shows and plaintiff could also not have signed exhibit A as chairman and exhibit B could not have been in existence in 1971.”

​From the record of proceedings, it is clear that the previous testimony of the plaintiff in EXHIBIT J contradicted his evidence and pleadings at the lower Court in the sense that in EXHIBIT J it was the testimony of the plaintiff that the plot allotment committee was set up in 1975 and that he had been the chairman of the committee since 1975. However, at the lower Court he said the committee was set up in 1970 and that EXHIBIT B was the letter by which they were constituted in 1970. The above contradictions are fundamental as they go to the jugular of the plaintiff’s case as pleaded in paragraphs 4-7 of the plaintiff ‘s 3rd Amended Statement Claim.

The law is clear on how the evidence of an inconsistent witness should be treated. This is a case where previous evidence in a previous proceeding was used to contradict him. This is to test the witnesses’ testimony.
This procedure was examined upon by ADEMOLA, JSC (as he then was) in ARIKU & ANOR V. AJIWOGBO(1962) LPELR – 25039 (SC) thus:
“Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying but evidence used for this purpose does not become evidence in the case in hand for any other purpose.”
Also in MADUMERE & ORS V.OKAFOR & ORS (1996) 4 NWLR PART 445 p. 637 OGWUEGBU JSC. had this to say on this procedure;
“a previous inconsistent statement can be put to a witness in a cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its content. The fact that the statement was made and is inconsistent with the witnesses’ testimony in the present proceeding is significant.” See also Section 233 (c) of the Evidence Act 2011.

I am not unmindful of the contention of the Appellant that the lower Court failed to consider that the plaintiff denied ever stating the year 1975 ascribed to him as the year the committee was set up. In other words, the plaintiff at the lower Court attempted to challenge the accuracy of EXHIBIT J. But the procedure for doing so is settled. See SOMMER & ANOR V. F.H.A (1992) 1 NWLR PART 219 P.548.
According to OMO JSC.; in SOMMER’S case (supra) an affidavit has to be filed. See also IDAKULA vs. RICHARDS (2001) 1 NWLR (pt. 693)111.
In ADEGBUYI VS. APC & ORS (2015) 2 NWLR (PT.1442) 1, FABIYI, JSC. explained this procedure this way:
“It is incumbent on the appellant to realise that the Court and the parties are bound by the record of appeal as certified and it is presumed correct unless the contrary is proved. A party who challenges the correctness of the record of proceedings must swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record. Such affidavit must be served on the Judge or registrar of the Court concern.”
It is clear from the above that the Appellant left undone what he ought to have done. He did not successfully challenge the record of proceedings used to contradict him. The lower Court therefore had no option other than to believe that he was not truthful in his evidence before it.

According to BASHIR WALI JSC in AYANWALE & ORS vs. ATANDA (1988) 1 NWLR (PART 68) p. 22
“Adjudication on any matter before a Court of law is not an easy matter. Cogency of evidence led depends on a series of factors the most important of which is the credibility of witnesses in oral testimony. The credibility of witnesses is enhanced if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to his testimony either from independent witness or from previous testimony on oath of the witness himself. If the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value”

The above is the situation in this case. I have deeply considered the reasoning and conclusion of the learned trial Judge. I find both unassailable. The failure of evidence of the plaintiff on the ground of lack of credibility in critical and vital areas of his case has knocked the bottom out of the case of the appellant.

I resolve the sole issue as adopted by me in favour of the Respondent in the circumstances.
This appeal lacks merit. It is hereby dismissed with cost assessed at N150,000.00 (One Hundred and Fifty Thousand Naira).

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

SYBIL NWAKA GBAGI, J.C.A.: I had a preview of the judgment delivered by my learned brother TUNDE OYEBAMIJI AWOTOYE, JCA. I agree with the reasoning, conclusions and orders made therein.

Appearances:

DR. M.O. OBAYUWANA, with him, E.M. OBAYUWANA, E.I. OTABOR For Appellant(s)

E.A. OLASENI For Respondent(s)