IGWE v. IGWE & ORS (2020)

IGWE v. IGWE & ORS

(2022)LCN/16851(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/AW/179/2017

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

DEACON FRANCIS IGWE APPELANT(S)

And

1. VALENTINE IGWE 2. FIDELIS AFUNANYA 3. SUNDAY ELUKAOHA 4. IZUCHUKWU IGWE 5. CHUKWUDI IGWE RESPONDENT(S)

RATIO

WHETHER OR NOT A DEFENDANT SHOULD PROVE HIS CASE WHEN A PLAINTIFF HAS NOT SUCCEEDED IN PROVING HIS CASE

In JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT. 887) PG 322 at 348, the Supreme Court held that:
“I realized that the Defendant need not prove anything if the Plaintiff has not succeeded in proving his case at least prima facie.” PER NWOSU-IHEME, J.C.A.

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Anambra State sitting in Ihiala, delivered on the 19th of December, 2016 at Ekwulobia by B. A. Ogueli, J., whereby the claim for damages for assault by the Appellant was dismissed and costs of One Hundred Thousand Naira awarded against him.

SUMMARY OF RELEVANT FACTS:
The suit is a simple action for assault, battery and false imprisonment. The Appellant’s case is that he is the half-brother of the 1st Respondent while the 4th and 5th Respondents are the sons of the 1st Respondent. The 2nd Respondent is a village leader in Ihueke, Isseke town of the parties. The father of the 1st Respondent and the Appellant, Late Nze Maduafokwa, in his lifetime shared his compound into two amongst the Appellant and the 1st Respondent. The Appellant, in November 2013, commenced erecting a building in part of his own portion. On 15/11/2013, the Respondents and their thugs, who were about twenty in number, stormed the Appellant’s compound and demanded that he should go with them to the palace of the king (“Igwe”) of Isseke because the king sent for him.

The Appellant followed them when he heard that it was the king of Isseke that sent for him. According to the Appellant, the men took him to the house of the 2nd Respondent, stripped him naked, beat him up by flogging him and thereafter locked him up in the 2nd Respondent’s house for more than four hours. They also took away his N350,000.

According to the Appellant, it took the intervention of one Chukwujekwu Akubuo (PW2) and the Appellant’s mother for the Appellant to be rescued. The Appellant’s mother and Chukwujekwu Akubuo ran to the scene where the Appellant was being assaulted and called in some kinsmen and elders of the parties.

The Appellant caused his lawyer to make a written complaint of the assault to the police at the Police Area Command, Nnewi where police investigated the matter. The police gave the Appellant a medical form with which he went to the hospital. The 1st Respondent was invited by the police and was also asked to bring the 2nd Respondent to the police. The 2nd Respondent used his influence to stop the police investigation as he got the king of Isseke, Igwe Emmanuel Nnabuife, to have the police matter withdrawn so that he (the king) could look into the matter. The king has, uptil now, not looked into the matter.

According to the Appellant, he spent money in treating himself. He also took photograph of the injuries he sustained in the hands of the Respondents and their thugs. The Appellant as PW1 tendered in evidence the petition his lawyer wrote to the Police Area Commander, Nnewi dated 15/11/2013 (exhibit P1); the Medical Report given to the Appellant dated 15/11/2013 (Exhibit P2); the photograph of the Appellant (exhibit P3); receipts for medical treatment at Christ the King Hospital, Anyigba, Kogi State (exhibit P8A, P8B and P8C).

The Appellant claimed that the reason for his assault is because he was erecting a building on his father’s land. The parties are in Court over the dispute arising from the land of late Nze Maduafokwa Igwe. Exhibits P4, P5 and P6 are some of the proceedings pending at the Customary Court, Orsumoghu.

The Appellant had filed a suit in the High Court Ihiala, under the Fundamental Rights (Enforcement Procedure) Rules 2009, redressing the alleged assault and false imprisonment but the Court struck out the reliefs directing him to file an action in tort. The judgment is Exhibit P7.

The Respondents denied the Appellant’s claim. They filed a joint Statement of Defence wherein they averred that all the parties, except the 3rd Respondent, are from Ihueke, Isseke. The 3rd Respondent is the chairman of the Youths in Isseke town. He hails from Amudo, Isseke. He is not a thug. The 1st Respondent is the head of late Nze Maduafokwa Igwe’s family since the death of Maduafokwa Igwe in 2003. The Appellant is his younger brother. The late Nze Maduafokwa Igwe had, in his life time, allocated to the Appellant, the 1st Respondent and the 4th Respondent portions of his compound to build. The 1st Respondent is in charge of the unshared portion of Maduafokwa Igwe’s estate part of which the Appellant has broken into without the 1st Respondent’s consent or authority. All that is subject to the land suits (CCO/3/2014 and CCO/4/2014) at Orsumoghu Customary Court. The Appellant, according to the Respondents, in November, 2013, assembled some building materials at a site inside the unshared portion of late Nze Maduafokwa Igwe’s compound preparatory to commence building without the 1st Respondent’s approval. The 1st Respondent made some complaints on that account to the 2nd Respondent as the Chairman of Ezere village Assembly to Igwe Emmanuel C. Nnabuife, the traditional ruler of Isseke and to one Ichie (Dr.) Lawrence Ogueze.

The persons the 1st Respondent complained to about the Appellant’s act of trespass tried to restrain the Appellant from building on the land by placing “Omu” (palm front) on the land which signifies, under Isseke native law, an interlocutory injunction restraining parties in a land dispute from going into the land. The Appellant removed the palm front and commenced building on the land and brought in about 50 strangers who were believed to be thugs. The men were there on the land smoking substances suspected to be Indian hemp.

The Respondents denied that the 2nd Respondent is a pledgee of the 1st Respondent and the Appellant, rather, the 2nd Respondent bought a piece of land in 1990 from Nze Maduafokwa Igwe who sold to him and the proceeds used in setting up business for the Appellant. The Respondents also averred that the Appellant and his mother have variously attempted to bribe the 2nd Respondent with money and kolanuts respectively on 10/11/2013 over the issue but the 2nd Respondent rejected their offer.

The account of the Respondents is that the thugs brought into the land by the Appellant chased away the members of Igwe’s cabinet that came to replant the “Omu” removed by the Appellant. The 1st, 4th and 5th Respondents, who were at the scene, were attacked by the men and they raised alarm which attracted many villagers to the scene including the 3rd Respondent and one Aloysius Ndedigwe, the chairman of Isseke Vigilante Services. The entire incident resulted in a fight between the Appellant and his thugs on one hand and the rest of the public on the other hand. The thugs, at a stage of the fight, took to their heels. The 1st, 4th and 5th Respondents were injured and nobody saw any injury on the body of the Appellant.

The Respondents denied assaulting the Appellant or even inflicting injury on him. According to the Respondents, none of the Respondents took away N350,000 from the Appellant. The Appellant was never taken to the 2nd Respondent’s house on 15/11/2013 or at any other date and he was never detained at the 2nd Respondent’s house for any purpose. The Respondent’s also denied the Appellant’s allegation that Igwe Emmanuel Nnabuife intervened over the matter at the police and was allowed to take the matter home to Isseke for settlement among the parties.

Learned Counsel for the Appellant P. O. Nwoko Esq., distilled three issues for determination as follows:
1. “Whether the Court below was right in law when it gave judgment in favour of the Respondents and held that on the 15/11/2013, it was the 1st, 4th & 5th Defendants/Respondents that were attacked by the Plaintiff/Appellant, instead of the Plaintiff/Appellant being the person bartered and falsely imprisoned by the Respondents on the said date.
2. Whether the judgment of the trial Court was not against the weight of evidence, as the Court below did not properly evaluate the Appellant’s oral and documentary evidence in this case, vis-à-vis Respondents’ evidence.
3. Whether the Court below was right in awarding the Respondents punitive damages of N100,000.00, which they neither asked for nor proved.”

Counsel for the Respondents G. O. Eleanya Esq., on his part distilled two issues for determination as follows:
1. “Whether the trial Court that found Appellant and his witnesses evidence inconsistent, contradictory and unsatisfactory was justified in dismissing the Appellant’s claim in its entirety.”
2. Whether the trial Court that took evidence of a total of 8 (Eight) witnesses, heard the matter between 31st October, 2014 and 13th December, 2016 and the Respondents who gave evidence and called 6 (Six) out of the total of 8 (Eight) witnesses in the Suit, was justified in awarding as cost in favour of the Respondents against the Appellant, the sum of N100,000.00 (One Hundred Thousand Naira) only.”

The issues raised by both counsel could be compressed into one straight forward issue thus:
“Whether on the facts and circumstances of this case, the trial Judge was justified in dismissing the Appellant’s claim for damages, assault and false imprisonment and proceeded to award One Hundred Thousand Naira costs against him.” Taking the issues, learned counsel for the Appellant, P. O. Nwoko Esq., contended, in summary, that the trial Court erred in law when it believed the cooked up evidence of the Respondents’ witnesses and went further to hold that it was the 1st, 4th and 5th Respondents that were attacked on the 15/11/2013 by the Appellant rather than the Appellant being the person battered and falsely imprisoned by the Respondents on the said date.

Counsel submitted that the trial Court gave judgment against the weight of evidence by failing to evaluate the oral and documentary evidence (Exhibits P1 to P & D) tendered by the Appellant. He argued that the award of One Hundred Thousand Naira costs against the Appellant was punitive. He cited numerous authorities to drive home these assertions.

Reacting to the forgoing, learned counsel for the Respondents G. O. Eleanya Esq., submitted that the evidence of the Appellant and his witnesses were inconsistent, contradictory and unsatisfactory and the learned trial Judge was justified in dismissing the Appellant’s claim in its entirety and awarding costs against him.

Counsel also cited authorities to drive home his submissions.

In dealing with the issue as to whether or not the learned trial Judge had any reason or justification in dismissing the claim of the Appellant, the evidence of the Appellant at the trial Court is key.

It is on record that Exhibit P1 is the written complaint made by the Appellant’s counsel soon after the alleged assault and battery on the 15/11/2013. It was tendered by the Appellant himself as PW1.

Consequent upon Exhibit P1, the Police issued the Appellant Exhibit 2 the Medical paper with which the Appellant visited the Medical Doctor PW3, Dr. Stephen Okwuchukwu Eze. PW3 in his testimony in Court stated that the Appellant who he observed on the 15/11/2013 was assaulted and battered a day before the visit. Put in another way the Medical Doctor treated the Appellant of injury that was inflicted on the Appellant a day before the 15/11/2013 when Pw3 said he observed the Appellant.

This is clearly contradictory and the Appellant did not bother to respond or offer any explanation to this inconsistent evidence.

Exhibit 2 is the Medical paper with the stamp of the Nigeria Police and with a date, 12/11/2013 clearly written on it. It follows therefore that this was the date the Police issued that document.

Looking at Exhibit P2 and the date 12/11/2013 clearly written on it, the only inference to be drawn is that the said Exhibit P2, the Police Medical paper was written before the written complaint by Appellant’s counsel dated the 15/11/2013.

Exhibit P2 was written consequent upon the written complaint by the Appellant’s counsel dated the 15/11/2013. Was Exhibit P2 written in advance or in anticipation of the written complain dated the 15/11/2013? There was no explanation whatsoever by the Appellant to explain this blunder.

In dealing with this case and to determine whether or not the Appellant was assaulted, battered and falsely imprisoned, it is pertinent to look at the relationship between the Appellant and Respondents before the so called complaint that gave rise to the Appellant being “observed” by the Medical Doctor, PW3. It is also on Record that Exhibits P4, P5 and P6 are evidence of land disputes pending at the Customary Court, Orsumoghu between the Appellant and some of the Respondents.

The dispute involved the land of late Nze Maduafokwa Igwe, the father of the 1st Respondent and the Appellant.

It is therefore obvious that the said dispute was the underlining reason why the Appellant decided to raise exaggerated alarm claiming that he was assaulted, battered held against his wish for about four hours.

This allegation has not been proved by the Appellant.

In JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT. 887) PG 322 at 348, the Supreme Court held that:
“I realized that the Defendant need not prove anything if the Plaintiff has not succeeded in proving his case at least prima facie.”

In dismissing the claim of the Appellant, the learned trial Judge had these to say at page 226 of the Records:
“The Plaintiff’s case is fraught with inconsistencies. I do not believe the Plaintiff’s account as it is devoid of credibility. I do not believe that the Defendants and over 20 persons would storm the Plaintiff’s premises, seize him and took him with them by foot for a distance, then put him in a Motorcycle, drove him to the house of the 2nd Defendant, tortured him and detained him for over 4 hours and only PW2 witnessed the incident.
I am inclined to believe the Defendants’ case that on the day in question, the 1st, 4th, 5th Defendants were being attacked by the Plaintiff and some of his hired hands at Plaintiff’s premises. Some villagers who heard some shouts went to the scene and after a while the Plaintiff’s hired hands fled the scene.”

I entirely agree with the above findings, it is very clear and succinct. I have no reason or justification to interfere or intervene.

In the premise, the sole issue is resolved against the Appellant and in favour of the Respondents. This appeal is unmeritorious and is hereby dismissed.

The judgment of the Ihiala Division of the Anambra State High Court in Suit No HIH/48/2014, delivered on the 19th day of December, 2016 by B. A. Ogueli, J, is hereby affirmed.
I make no order as to costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, CHIOMA E. NWOSU-IHEME, PhD-JCA and I am in agreement with the reasoning and conclusions in disallowing the appeal as completely lacking in merit. I subscribe to the consequential orders made thereto.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had a preview of the judgment of my learned brother, CHIOMA NWOSU-IHEME, JCA just delivered. I agree with the reasons adumbrated therein and the conclusion arrived at that this appeal should be dismissed for being unmeritorious. My learned brother has exhaustively dealt with the sole issue upon which this appeal was determined. I have nothing to add to the findings of my learned brother. Appeal is dismissed. I too make no order as to costs.