MR. AUGUSTINE THOMPSON EBEM & ANOR v. MR. SUNDAY NSEYEN
(2016)LCN/8142(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of January, 2016
CA/C/123/2013
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE IS THE BEST FORM OF EVIDENCE AND WHAT MUST BE ESTABLISHED ALONG WITH THE PRODUCTION OF DOCUMENT OF TITLE
Even in Election Petitions, documentary evidence is also the best form of evidence. See Mlya vs. Mshelizah (2004) 14 WRN 128, Ngige vs. Obi (2006) 14 NWLR (Or. 999) 1 at 233, In Ogbeide vs. Osifo (2009) 3 NWLR (pt. 1022) 423 at 441, the Court of Appeal held inter alia.
“Documentary evidence is the yard stick or hanger by which to assess the veracity of oral testimony or its credibility.” Also in Babatunde vs. Model Industries Nig. Ltd (2004) 9 NWLR (Pt. 879) 614 at 627 where the Court held; “Where again as in the instant case, a trial Court is not left with only the oral testimonies of the parties but as well as documentary evidence which tell the same story, it is the law that the veracity of the oral testimony shall be tested against the documentary evidence which is evidence of a permanent nature.”
See also Fashonu vs. Adekoya (1974) 1 All NLR 9pt. 1) 35, Kindey vs. Military Governor of Gongola State (1988) 2 NWLR (pt.77) 445, It must be noted however that a party’s mere production of a document of title in an action for a declaration of title is not enough, as the production and reliance upon an instrument of grant carries along with it the corresponding necessity for the grantee to establish whether or not
(i) The document of title is genuine and valid.
(ii) The document had been duly executed, stamped and registered.
(iii) The grantor has the capacity and authority to make the grant.
(iv) The grantor had in fact what it purported to grant.
(v) The document had the effect claimed by the holder of the instrument of title.
See also Ngene v. Igbo (2000) 15 WRN 160. per. PAUL OBI ELECHI J.C.A.
COURT: COURT’S DECISION; WHEN THE DECISION OF THE COURT SAID TO BE PERVERSED
A decision is said to be perverse where;
(i) It is speculative and not based on evidence..
(ii) The Court took into account matters which it ought not to have into account.
(iii) The Court shut its eyes to its eyes to the obvious.
See Atolagbe vs. Shorun (1985) 1 NWLR (pt. 360, Osuji vs. Ekeocha (2002) 52 WRN 1 at 35-45. Ndili vs. Akinsumade Adimora vs. Ajupo (1988) 3 NWLR (2007) 27 WRN 127,Zaki vs. Magayaki (2002) 15 WRN 154 Uka vs. Irolo (2002) 12 MJSC 47, Felix Abideye vs. Oba Jacob Alamole (2001) 3 SC 1, Ukata vs. Ndunaze (1997) 4 NWLR (pt. 499) 257 at 276. per. PAUL OBI ELECHI J.C.A.
APPEAL: OMNIBUS GROUND; WHAT IS AN APPEAL BASED ON OMNIBUS GROUND
Also an appeal based on omnibus Ground implies that the Judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified, put in another way, an appeal against the weight of evidence is in the nature of questioning both the credibility of witnesses and the evaluation of evidence of the said witnesses. See Jika vs. Akuson (supra) (Nwokidu v. Okanu (2010) 41 NSCQR (pt.1) 215 at 219 where the Supreme Court held thus;
“An omnibus Ground of appeal is a general Ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of any fact or any document and it cannot be used to raise any Issue of Law or error of Law. For a complaint on a finding of fact on a specific Issue, a substantive Ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus Ground.” per. PAUL OBI ELECHI J.C.A.
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISIJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
Between
MR. AUGUSTINE THOMPSON EBEM
MRS. MERCY AUGUSTINE EBEMAppellant(s)
AND
MR. SUNDAY NSEYENRespondent(s)
PAUL OBI ELECHI J.C.A. (Delivering the Leading Judgment):?This is an appeal against the Judgment of the High Court of Cross River State, Calabar?Judicial Division, Coram Akan B. Ikpeme which was delivered on the 15th September, 2011 against the Appellant and hence this appeal.
BRIEF FACTS OF THE CASE
The facts of this case according to the Appellant is that the Respondent and the 1st?Appellant are both blood- brothers. They all lived together with their families at the property in dispute situate and called No.?14, Akai Close, Calabar. During the life time of their mother. None of them claimed sole ownership of the said property.
However, soon after the death of their mother, the Respondent came up with fraudulent documents of title and started claiming ownership over the said property. He also took steps to eject the Appellants from the area of the property where they reside, right from the life time of their mother. When every attempt to eject the Appellants failed, the Respondent file Suit No. HC/383/2008 at the High Court, Calabar. At the end of trial, the trial Court gave Judgment in favour of the
Respondent on the 15th September, 2011 The Appellant not being satisfied with the Judgment of the Court below filed a Notice and Grounds of Appeal on 19th day of August, 2011 to this Court.
In arguing this appeal, the Appellant distilled four Issues from the five Grounds of appeal for determination.
1. “Whether the documentary evidence such as Exhibits l, 2, 3, 4a and 12 tendered by the Respondent supported the case of the Respondent for the declaration of title to No. 14 Akai close, Calabar- Issue settled from Ground 1 of the Records of Appeal.
2. Whether oral evidence can be adduced to contradict the content of documents tendered in Court and whether documents tendered in whole can be considered in part by the Court.
3. Whether document which did not support the case of a party replying on its can be acted upon to enter judgment against an opponent because the opponent did not tender any document.
4. Whether the Judgment of the trial Court is not perverse and against the weight of evidence by the reason that the Court below wrongly evaluated and ascribed probative value to documents that have no value.
In arguing Issue No. 1 above
which is whether documentary evidence such as Exhibits 1, 2, 3 4a, and 12 tendered by the Respondents support the declaration of title to No. 14 Akai Close, Calabar, Learned Appellants’ Counsel stated that the Respondent relied on documentary evidence to prove title to the property at No. 14 Akai Close Calabar. The Exhibits include Exhibit 1 – Survey Plan of the Land, Exhibit 2 – Permit to erect building, Exhibits 3 – Building Plan, and Exhibit 12 – Agreement of the land dated 29th August, 1976. From the above Exhibits, Learned Appellants Counsel contended that the evidence as captured by these Exhibits are at variance with the pleadings. No evidence was given by the Respondents to explain why Exhibit 1, when the Respondent testified that he surveyed the land in 1976 is shown to have been drawn on the 7th day of August, 1989. In Exhibit 2, (building permit) the Respondent testified that he bought the land in 1976 and the building permit was also granted same year. But the said Exhibit 2 was shown on the document testified by the Respondent that the document was signed on the 20th November, 1991 and yet no explanation from the Respondent.
Exhibits 2 and 3 were signed on the same date?
of 25th November, 1991 and not 1976 which the Respondent stated during his evidence in Court.
The Respondent’s evidence in Court under cross-examination was that he paid the sum of N7,920.00 as rent for the land in 1976 as contained in Exhibit 12 (land agreement) but Exhibit 4A tendered by the Respondent showed that the receipt of payment for the land was Issued on the 29th September, 1992 without any explanation from the Respondent. Exhibits 4B-4D were tendered as payments for inspection in 1992 when he claimed that he bought the land in 1976.Inspite of all the above which the trial Court admitted but nonetheless, she gave Judgment to the Respondent only on one reason to wit. The Respondent tendered documents which said Judgment is not based on Law Exhibits 1, 2, 3, 4A -4D and 12 are worthless documents which have not supported the case of the Respondents. See Iyagba vs. Sekibo (2009) ALL FWLR (pt 466) 1961, omeregbe vs. Lawani (1980) 3-4 SC 108, Ofulaja vs. Haddad (1973) 11 SC 357, Learned Appellant’s Counsel then submitted that the contradictions in the documents tendered by the Respondents particularly Exhibits 1,2,3,4A -4D and 12
are material enough in as much as the period between when the Exhibits were alleged to have been executed or Issued in 1976, spanned between 13 and 15 years to the dates shown on the documents as the date of Issue or execution. See Ohiwerei vs. Okoson (2003) 11 NWLR (Pt. 832) 463. According to Learned Counsel, the Law is that the burden of proving a particular fact is on the party who asserts. Therefore, the Respondent who asserted that he bought the land in 1976 and built thereon the same year, has the burden to lead credible evidence to prove same. Since parties are bound by their pleadings, it should be noted that the Respondent never pleaded and/or led evidence on the fact bordering on making the agreement of land Exhibit 12 and/or Exhibits 1, 2, 3, and 4A in 1989. Therefore any evidence given by the Respondent about making documents in 1989 was given at variance with the documents tendered.
See Ezemba vs Ibeneme (2000) 10 NWLR (pt. 674) 61 at 74.
?From the evidence on Record of the Respondents, it cannot be said that the Respondent discharged the burden of proof placed on him as the one who asserted that he bought land and built on it in 1976.
As a result therefore, he then urged the Court to resolve this Issue No. 1 in favour of the Appellant.
ISSUE No. 2
“Whether oral evidence can be adduced to contradict the content of the documents tendered in Court and whether documents tendered in whole can be considered In part by the Court.”
Documentary evidence according to Learned Appellant’s Counsel is the best form of evidence because it is always reliable. See Cameroon Airlines vs. Otutuizu (2011) 45 (pt 2) NSCQR 962 at 985, Eholor vs. Osayande (1992) 7 SCNJ 217. Learned Appellants Counsel submitted that from whatever angle one looks at the evidence of the Respondent, cannot be used to vary the content of Exhibits 1,2,3, 4A, 4D, and even Exhibit 12. The Respondent, he contended cannot be taken as a witness to be believed as can be inferred from his oral evidence in Court and the above Exhibits tendered and admitted in evidence. As a result, the oral evidence of the Respondent cannot be admitted to vary, contradict or add to the contents of all the Exhibits he entered in Court.
He then urged the Court to resolve Issue No. 2 in favour of the Appellants.
ISSUE NO. 3
“Whether documents which do not support the case of the party relying on it can be acted upon to enter judgment against the opponent because did not tender any document.”
Appellant’s Counsel contended that the Respondent’s evidence on Oath differs materially from the documents tendered, yet the trial Judge closed its eyes against the Respondent’s evidence because of its fraudulent documents. The Law he stated is settled that parties are bound by their pleadings and that once evidence differs materially from the averments on the pleadings and documents relied upon by the party the claim must be dismissed.
Though it is conceded that one of the ways of proving title to land is by the production of documents but In this case, the documents were fraudulently obtained. Nonetheless, the trial Judge still relied on them and held that the Respondent was the only person who tendered documents genuine or not. See Romaine vs. Romance (1992) 2 NWLR Pt 237 page 650.
He then submitted that the evidence of the Appellant at the Lower Court was stronger than the evidence of the Respondents but the trial Judge wrongly and out
rightly rejected same. The Lower Court he submitted was wrong in his assessment and acceptance of the fraudulent documentary evidence which did not support the case of the Respondent that he bought the land in 1976. He then urged the Court to resolve Issue 3 in favour of the Appellants.
ISSUE NO. 4
“Whether the judgment of the trial Court is not perverse and against the weight of evidence by the reason that the Court below wrong evaluated and ascribed probative value to documents that have no value.”
Learned Appellant counsel contended that the Respondents principle Exhibits 1, 2, 3, 4A, 5 and 12 were the green cards which the Respondents relied to prove their claim of ownership of the property in dispute. The documentary evidence in the face of the Exhibits are contradictory to one another and also contradicted the oral evidence of the Respondent on oath in summing up the case of the parties even through the trial Judge admitted that the evidence of the Respondents contradict one another yet the Court shut its eyes as could be seen on page 302 of the Records. The Judgment arrived at thereat is therefore to that extent perverse.
See Uka vs. Irolo (2002) 12 MJSC 1, Registered Trustee of Holy Apostolic church vs. Rev Folorunso Ayeni (2002) FWLR (pt 115) 708″ MISSR vs. Ibrahim (1995) 5 SC 55, Atolagbe vs. Shorum (1985) 4 SC 250.
The Judgment of the Court according to Learned Appellant’s Counsel is perverse and has therefore occasioned a miscarriage of justice to the Appellant because the trial Court did not properly evaluate the evidence before it. Even the evidence of the Respondent that the dates on the documents might be a mistake was not considered by the trial Court at the time the evidence of the Respondent was evaluated. See Adebayo vs. Aduse (2004) 4 NWLR Pt. 862 44. He then called on the Appellant Court to step in to do the primary duty which the Court below failed to do. See Nagogo vs. C. P. C (2012) 7 -9 51 NSCQR 484.
Based on the above, he then urged on the Court to resolve Issue No. 3 in favour of the Appellant and finally to allow the appeal and set aside the Judgment of Lower Court.
On his own part, the Respondent distilled four Issues from the Grounds of appeal.
l. Whether the documentary evidence such as Exhibit 1, 2, 3, 4A and 12 tendered by the
Respondent supported the case of the Respondent for the declaration of title to No. 14 Akai Close, Calabar.
2. Whether oral evidence can be adduced to contradict the content of the documents tendered in Court and whether documents tendered in whole can be considered in part by the Court.
3. Whether documents which did not support the case of the patty relying on it. Can be acted upon to enter judgment against the opponent because the opponent did not tender any document.
4. Whether the judgment of the trial Court is not perverse and against the weight of evidence by the reason that the Court below, wrongfully evaluated and ascribed probative value to documents that have no value.”
Learned Respondent’s Counsel in his reply, stated that the crux of the case is title to the property lying and situate at No. 14, Akai Close, Ikot Effiong Nta, Calabar and the buildings thereon. He referred the Court to the case of Balogun vs. Akanji (2005) All FWLR (pt, 262) 405 at 406 where the Supreme Court stated the five ways of establishing title to include:
l. Traditional History.?
2. Production of documents.?
3. Act of selling, leasing, renting.
4. Act of long possession and enjoyment.
5. Proof of possession.
According to Learned counsel, the Respondents established ownership of the disputed land from 2-4 of the methods stated above one of it suffices. See Onnubariri vs. Igboasoiyi (2011) 45 Nscq Pt. 2 1007 at 1012. From the Records, it is clear that the Respondents exercised other acts of possession by fixing and removing tenants in the property in dispute. In the Lower Court, both parties claimed to derive title from the same source and the Defendant contended joint ownership. The Law he said is trite that where two parties in dispute over a piece of land claim to derive their title from the same source,?the trial Court has a duty to consider both accounts carefully and then decide on the balance of probabilities which of them it will accept. see Oyabanji vs. Lawanson (2004) All FWLR (pt. 238) 757 at 761.
On the Issue No. 1, Learned Respondent Counsel submitted that the arguments of the Appellant on this Issue therein as mis-leading and that the authorities cited are not applicable and therefore distinguishable. This is because there is no contradiction or inconsistencies in the
documentary and oral evidence of Respondent and his witnesses. It is trite that for any contradiction or inconsistency in evidence to affect the case of a party, it must be material and not peripheral. See Owie vs. Ighiwi (2005) AII FWLR (pt 248) 1770. Exhibit 1 was tendered by the Respondent to show possession. See Ajero vs. Ugoji (1999) 7 SC (pt 2) 58.
Exhibit 2 is the permit to erect a permanent building and it gave rise to Exhibit 3- building plan approved by the appropriate authority.
Exhibit 4A -4D are receipts tendered by the Respondents to show that the land owners have been dealing with the Respondent and was contributing in levy to prosecute their cases in Court.
On the Issue of dates as contended by the Appellant Learned Respondent’s Counsel likened the position to even criminal cases where the standard of proof is beyond doubt, yet contradictions in dates and time are considered to be immaterial. See Basil Akpa vs. The state. (2008) 34 NSCQR (Pt.2) 1249 at 1256. He stated that assuming but not conceding that oral evidence was admitted to alter documentary evidence, it is settled Law that the wrongful admission of inadmissible
evidence may or may not lead to the reversal of the Judgment appealed against. It will not lead to such a reversal where the inadmissible evidence did not occasion any miscarriage of justice or affect the decision of the Court in anyway. See Durosaro vs. Ayorinde (2005) 21 NSCQR 701.
Exhibit 12 is a valid Deed of Lease made between Chief Ekpenyong Eke Effiong Nta and the Respondent. See Ekpanya vs. Akpan (1989) 2 NWLR (Pt 101) 86 at 90, Bosah vs. oji (2002) 6 NWLR (Pt. 762) 141. Exhibit 12 was complete and valid upon its execution in 1976. Exhibit 12 falls into one of the ways of proving title to land as stated in the case of Adeniran vs. Alao (2001) 18 NWLR (Pt. 745 327). Therefore, the Lower Court was correct in reaching the conclusion that the contradictions or discrepancies were not material and did not stake the evidence or the Respondent’s claim on the discrepancies as per the holding of the Lower Court. In view of the above, he urged the Court to resolve this Issue in favour of the Respondent.
ISSUE No. 2
“Whether oral evidence can be adduced to contradict the content of the documents tendered in Court and whether
documents tendered In whole can be considered in part by the Court.”
According to Learned Counsel, documentary evidence is the best form of evidence. It is the hanger by which to assess the veracity of oral testimony. See Ejiogu vs. Onyeaguocha (2006) All FWLR (Pt. 317) 467 at 473. Aiki vs. Idowu (2006) ALL FWLR (Pt.293) 361 at 363.
It follows therefore that where a document is clear and unambiguous, parole or oral evidence cannot be led to contradict it. In other words, extrinsic evidence is basically inadmissible to alter the contents of a document. see Balial Ltd v. Navcon Ltd (2010) 42 NSCQR (pt, 2) 1067 at 1071. International Messengers Nig. Ltd vs. Pegofor Industries Ltd (2005) 22 NSCQR 322 at 323.
It is Learned Respondent’s Counsel submission that the discrepancies or contradictions in the Respondent’s oral evidence are not substantial or material enough to alter the contents of the Exhibits admitted in evidence on behalf of the Respondents.
On evaluation of evidence, it is Learned Counsel’s submission that it is the duty of the Appellant who alleges improper evaluation of evidence
to demonstrate from the Records how relevant material evidence were ignored, misplaced or not accorded their due weight by the trial Judge. See Admin Gen & Public Trustee, Delta State vs. Ogogo (2006) All FWLR (pt. 293) 256 at 273, Nkebisi vs. The State (2010) 421 NSCQR (pt, 2) 1173 at 1179 – the Appellants, he contended have not been able to discharge this onus as they have not pinpointed from the Judgment of the trial Court, what oral evidence of the Respondents have added or altered the Respondent’s documentary evidence. Even if oral evidence was admitted, it has not been shown how the trial Judge used or wrongly evaluated it.
The documents being contended by the Appellants as having been altered by oral evidence are Exhibits 1, 2, 3, 4A and 12, according to paragraph 5.3 of the Appellants’ brief of argument. As documentary evidence, they speak for themselves. The evidence adduced by the Respondents in respect of these Exhibits are consistent with the Respondent’s pleadings and the Appellants have not shown from the Judgment the admitted oral evidence that have tendered to alter the said Exhibits or what injustice it has brought to them. As a result of
that, he then urged the Court to resolve this Issue No. 2 in their favour.
ISSUE NO. 3
“Whether documents which do not support the case of the use of the party relying on it can be acted upon to enter judgment against the opponent because the opponent did not tender any document.”
The Issue here according to Respondent’s Counsel is that the Appellants have raised the Issue of DW3 denying that he signed Exhibits 5 & 12 – Deed of Lease. This unsuccessful denial he said was meant to discredit Exhibits 5 & 12, the Report of the Customary Arbitration and Deed of Lease respectively. This has raised the Issue of forgery which particulars, as a criminal allegation, were not pleaded in the Appellant’s statement of defence and being a criminal allegation, it should have been proved beyond reasonable doubt. See Ashabi vs. Olapade (2011) 46 NSCQR (pt. 1) 373 at 377. The Lower Court in arriving at its conclusion in this matter took into consideration the things that must influence a Court in ascribing probative value to the evidence as shown in Anyegwu vs. Onuche (2009) 37 NSCQR 109 at 113.
As a result therefore he urged the
Court to resolve this Issue in favour of the Respondent.
ISSUE NO. 4
“Whether the judgment of the trial Court is not perverse and against the weight of evidence by the reason that the Court below wrongfully evaluated and ascribed probative value to the documents that have no value.”
Learned Respondent’s Counsel stated that an appeal on Judgment being perverse and on omnibus Ground implies that the Judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on accepted evidence cannot be justified, that is, it is in the nature of questioning both the credibility of witnesses and the evaluation of evidence of the said witnesses. See Jika vs. Akuson (2006) ALL FWLR (pt. 293) 276, Nwokidu vs, Okanu (2010) 41 NSCQZR (pt. 1) 215 at 221. However, Learned Respondent’s counsel stated that contrary to the Issue at stake, the Appellants have brought this Issue raising in it, Issues and error when it should have been taken in another Ground of appeal. As a result, he urged the
Court to discountenance the Issues of Law and error of Law raised by the Appellants in this Issue.
Evaluation of evidence and ascription of probative value are the primary function of a Court of trial which saw, heard and duly assessed the witnesses. See Okeowo vs. Attorney-General of the Federation (2010) 43 NSCQR 1 at 4. The Appellant Court will not therefore disturb or interfere with the findings of the trial Court because it neither saw, heard the parties and their witnesses, not observed their demeanour in the witness box, unless such findings were unreasonable or perverse or unsupported by evidence. However, that is not the case here. In view of the above, Learned Respondent Counsel then urged the Court to resolve this Issue in their favour and to dismiss the Appeal and affirm the decision of the Lower Court.
In resolving the Issues raised in this Appeal,?I shall commence same by considering them seriatim as canvassed by the parties.?In trying to justify his position in the claim before the Lower Court, the Respondent tendered in evidence Exhibits 1, 2, 3, 4A and 12 as evidence of his declaration of title to No. 14, Akai Close, Calabar. These
said Exhibits are:
(l) Exhibit 1- Survey Plan of the land
(2) Exhibit 2- Permit to erect building
(3) Exhibit 3- Building Plan
(4) Exhibit 4 A – Receipt of payment of Rent
(5) Exhibit 12- Agreement of the land dated 29th August, 1976.
According to Appellant’s Counsel, these Exhibits are worthless documents because they do not support the case of the Respondent as they all contain bundles of contradictions.
However, the Learned Respondents Counsel submitted that the crux of the case is title to the property situate and known as No. 14, Akai Close, Calabar. Title to land he contended can be established by any of the five ways in the case of Balogun vs. Akanji (2005) All FWLR (pt.262) 405 at 406 where the Supreme Court of Nigeria stated the five ways to include:
(l) Traditional history
(2) Production of documents
(3) Act of selling, leasing and renting.
(4) Act of long possession and enjoyment of the land
(5) Proof of possession.
He then submitted that from the Record, the Respondents have established 2-4 of the above ways even though one if established suffices. See Onwubariri vs. Igboasoiyi
(2011) 45 NSCQR (pt. 2) 1007 at 1012.
Exhibits 1, 2, 3, 4A & 12 were tendered by the Respondents with the aim of furthering the proof of his case. Documentary evidence is the best form of evidence because they are not only assailable but are more authentic than oral evidence, In Aiki vs. Idowu, (supra) the Court held:
“Documents when tendered and admitted in evidence are like word uttered and do speak for themselves, they are more reliable and authentic than words from the word of an as they are neither transient or subject to distortion and misinterpretation but remains permanent and indelible through the ages.”
Even in Election Petitions, documentary evidence is also the best form of evidence. See Mlya vs. Mshelizah (2004) 14 WRN 128, Ngige vs. Obi (2006) 14 NWLR (Or. 999) 1 at 233, In Ogbeide vs. Osifo (2009) 3 NWLR (pt. 1022) 423 at 441, the Court of Appeal held inter alia.
“Documentary evidence is the yard stick or hanger by which to assess the veracity of oral testimony or its credibility.”
Also in Babatunde vs. Model Industries Nig. Ltd (2004) 9 NWLR (Pt. 879) 614 at 627 where the Court held;
“Where again as in the instant
case, a trial Court is not left with only the oral testimonies of the parties but as well as documentary evidence which tell the same story, it is the law that the veracity of the oral testimony shall be tested against the documentary evidence which is evidence of a permanent nature.”
See also Fashonu vs. Adekoya (1974) 1 All NLR 9pt. 1) 35, Kindey vs. Military Governor of Gongola State (1988) 2 NWLR (pt.77) 445,
It must be noted however that a party’s mere production of a document of title in an action for a declaration of title is not enough, as the production and reliance upon an instrument of grant carries along with it the corresponding necessity for the grantee to establish whether or not
(i) The document of title is genuine and valid.
(ii) The document had been duly executed, stamped and registered.
(iii) The grantor has the capacity and authority to make the grant.
(iv) The grantor had in fact what it purported to grant.
(v) The document had the effect claimed by the holder of the instrument of title.
See also Ngene v. Igbo (2000) 15 WRN 160.
The aforementioned Exhibits speak for themselves and so more
superior than oral testimony of witnesses as to what its contents are. In Law, Exhibits are said to be the hanger on which oral evidence would be hung for assessment or evaluation and cannot be contradicted by such oral evidence. see Guoava sec & Finance Ltd vs. T. I. C. Ltd (1999) 2 NWLR (pt. 589) 29, UBN vs. Ozigi (1994) 3 NWIR (pt. 333) 385, Opigo vs. Yukwu (1997) 6 NWLR (pt, 509) 428, Umaru vs. Ochiogbo (1993) 6 NWLR (pt. 298) 217. Therefore in this premises, the oral evidence of any of the parties whether challenged or not under cross-examination would be incapable of contradicting the contents of Exhibits 1, 2, 3, 4A & 12.
The Exhibits aforementioned were tendered by the Respondent to support his case in his quest for a declaration of title to No. 14, Akai Close, Calabar. At least if for no other reason, it shows the Respondent’s long standing relationship with the property in dispute.
Exhibit 12 in particular (Agreement of the land purchase dated 29th August, 1976 qualifies under one of the ways of establishing title to land. See Idundun vs. Okumagba (2002) 20 WRN 127.
The contention of the Appellant under Issue No. 1 is that the
Lower Court should have preferred his oral testimony in Court to the documentary evidence of the Respondents. However contrary to the high preposterous postulations of the Appellant, the Law is well settled that a plaintiff has an onerous duty to prove his case on the strength thereof and not on the weakness of the defence. He has the uphill task and most fundamental onus of establishing solid consistent and cogent evidence to the effect that he has a prima facie valid title to the property in dispute. See Nwokidu vs. Okanu (2010) 26 WRN 32, Obineche vs. Akusola (2010) WRN 117, Elegushi vs. Oseni (2005) L4 NWLR (pt. 945) 348, Diru vs. Enenuo (2009) 42 WRN 1, Sorugbe vs. Motunwase (1988) 3 NSCC (vol. 19) 252 at 262.
In the circumstance, the Issues No. 1 & 2 are hereby resolved in favour of the Respondents and against the Appellant.
On Issue No. 3 which is to the effect of whether documents which do not support the case of the party relying on it can be acted upon to enter Judgment against an opponent because the opponent did not tender any document. Under this Issue, Learned Appellant’s submission was that the Lower Court was wrong in his
assessment and acceptance of the fraudulent documentary evidence which do not support the case of the Respondent that he bought the land in 1976. Under this Issue also, the Appellants have raised the Issue of DW3 denying that he signed Exhibit 5 & 12 (Deed of Lease). The essence is to discredit Exhibits 5 & 12 – the Report of the Customary Arbitration and Deed of Lease respectively. This he contended has raised the Issue of forgery which particulars as a criminal allegation, should have been proved beyond reasonable doubt. See Ashabi vs. Okpade (supra). The Lower Court before arriving at its conclusion took into account the consideration of things that must influence a Court in ascribing probative value to the evidence. See Anyegwu vs. onuche (supra). So there is nothing like saying that the Court used documents which do not support the case of the party relying on it and still acted on same to enter Judgment against the opponent because the opponent did not tender any document. In the circumstance therefore, I hereby resolve this Issue No. 3 against the Appellant and in favour of the Respondents.
Issue No. 4 is whether the Judgment of the trial Court
is not perverse and against the weight of evidence by reason that the Court below wrongly evaluated and ascribed probative value to documents that have no value. A decision is said to be perverse where;
(i) It is speculative and not based on evidence..
(ii) The Court took into account matters which it ought not to have into account.
(iii) The Court shut its eyes to its eyes to the obvious.
See Atolagbe vs. Shorun (1985) 1 NWLR (pt. 360, Osuji vs. Ekeocha (2002) 52 WRN 1 at 35-45. Ndili vs. Akinsumade Adimora vs. Ajupo (1988) 3 NWLR (2007) 27 WRN 127,Zaki vs. Magayaki (2002) 15 WRN 154 Uka vs. Irolo (2002) 12 MJSC 47, Felix Abideye vs. Oba Jacob Alamole (2001) 3 SC 1, Ukata vs. Ndunaze (1997) 4 NWLR (pt. 499) 257 at 276.
Also an appeal based on omnibus Ground implies that the Judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified, put in another way, an appeal against the weight of evidence is in the nature of questioning
both the credibility of witnesses and the evaluation of evidence of the said witnesses. See Jika vs. Akuson (supra) (Nwokidu v. Okanu (2010) 41 NSCQR (pt.1) 215 at 219 where the Supreme Court held thus;
“An omnibus Ground of appeal is a general Ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of any fact or any document and it cannot be used to raise any Issue of Law or error of Law. For a complaint on a finding of fact on a specific Issue, a substantive Ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus Ground.”
In view of the above legal position, it was therefore improper for the Appellant to raise in it Issues of Law. As a result! all Issues of Law and error raised and argued in the Appellants brief of argument are hereby discountenanced as being incompetent.
On evaluation, it is trite that evaluation of evidence and ascription of probative value to the evidence are the primary duties of the trial Court which had the opportunity of seeing, hearing and assessing the witnesses. Also, the Supreme Court has extensively dealt with the Issue
of evaluation and went further to provide guidelines in the case of Kaydee Ventures Ltd. vs. The Hon. Minister of Capital Territory of 2 Ors (2010) 41 NSCQR (pt. 2) 830 at 840 per Mohammed JSC.
“The practice in a trial Court is this: two sets of Evidence are normally laid before the Learned trial Judge. One set by the plaintiff and the other set by the Defendant. These are geared towards justifying the averment each of the parties made in his/its pleadings. After the completion of evidence and perhaps closing addresses (where necessary) by the parties, it is now the duty of the Learned trial Judge to first of all put the totality of the testimony adduced by the plaintiff on one side of the scale and that of the Defendant on the othere side and weigh them together. HE will then observe which is heavier NOT by the NUMBER of witnesses called by each party, but by the quality or probative value of testimony of those witnesses. In determining which side is heavier, the Learned trial Judge will need to have regard to whether the evidence is relevant, conclusive, admissible and more probable than the other adduced by the other party. It is to be noted that any evidence that
was rejected by the trial Judge should not find a resting place on that imaginary scale…”
From pages 266-305 of the Record of the Judgment of the Record on the Judgment of the Lower Court, the Learned trial Judge at page 299 commenced the evaluation of the evidence of the parties when it said thus:
“I will start with analyzing the Defendant’s position as couched in paragraph 20 of their statement of defence on the effect that the claimant is not entitled to any of the reliefs sought by him as the property has been partitioned and the order of Court partitioning the property between the claimant and first Defendant is still subsisting…”
It follows therefore that the Lower Court followed the procedure stated in Kaydee Ventures Ltd vs. Minister of F.C.T. (supra) in arriving at the evaluation and ascription of probative value to the evidence of both parties in this appeal before its conclusion.
In my own humble view in this appeal, the Lower Court properly evaluated the evidence of the parties before it and also its findings in the facts before it are not perverse and I so hold. As a result, this Court will not disturb or interfere with the
findings of that Court that saw, heard the parties and their witnesses and observed their demeanour in the witness box. On the basis of the above, I hereby resolve Issue No. 4 in favour of the Respondents and against the Appellants.
Having resolved all the 4 Issues in this appeal in favour of the Respondent, I hereby hold that there is no merit in the appeal and it is hereby dismissed. The Judgment of the Lower Court is hereby affirmed. N50,000.00 cost to the Respondent.
IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.:
I agree.
ONYEKACHI AJA OTISI, J.C.A.:
My learned Brother, PAUL OBI ELECHI, JCA, made available to me a draft copy of the lead Judgment in this appeal. I am in complete agreement with his reasoning and conclusion dismissing this appeal.
I adopt his reasoning as mine and also dismiss this appeal.
I abide by the orders in the lead Judgment including the orders as to costs.
Appearances
NKOYO AMAH, (MRS) ESQ. with her, L.O ASUQUO, (MRS) ESQ.For Appellant
AND
I.I. IKOI, ESQ.For Respondent
