MR. FLORENCE CHIOMA NWOKOLO v. MRS. PATRICIA CHIZOBU NWOKOLO
(2018)LCN/11832(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/K/148/2009
RATIO
EVIDENCE: WHERE EVIDENCE REMAINS UNCONTROVERTED
“A piece of evidence is said to be uncontroverted, un-impeached and unchallenged when the opposing party led no credible evidence to the contrary or discredited same as untruth under the heat of cross-examination. In other words, where the evidence of a party is un-rebutted by the adverse party, such evidence is said to be uncontroverted. It does not mean that the adverse party led no evidence at all. It does mean that the evidence led by the adverse party was not credible enough to impeach the truthfulness of the said evidence. And it is trite law that when a piece of evidence is uncontroverted, the Court can act on same. See: MUSA & ORS. V YERIMA & ANOR.(1997) 7 NWLR (PT. 511) 27 @ 41 – 42; ADELEKE & ORS.V IYANDA & ORS.(2001) 13 NWLR (PT. 729) 1 @ 22 ? 23; AND USMAN V ABUBAKAR (2001) 12 NWLR (PT. 728) 685 @ 706.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE : EVALUATION OF EVIDENCE
“It is trite in law that evaluation of evidence is within the exclusive domain of the trial Judge who had the opportunity of observing the demeanor and countenances of the witnesses. Such observances would therefore assist him in making an informed evaluation of the evidence by each and every witness who testified before him. See: SULE ANYAEGWU V THE STATE (2009) SCNJ 91; JOSEPH OYEWOLE V KARIMU AKANDE & ANOR. (2009) 7 SCNJ 225; GUARDIAN NEWSPAPER LTD. & ANOR. V REV. PASTGOR C. I. AJEH (2011) 4 SCNJ 152.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
MR. FLORENCE CHIOMA NWOKOLO Appellant(s)
AND
MRS. PATRICIA CHIZOBU NWOKOLO Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Kano State delivered by Hon. Justice Tani Yusufu Hassan on 19th December, 2008.
By a Writ of Summons together with an Amended statement of Claim dated 22nd July, 2005, the Respondent as Plaintiff claimed against the Appellant as Defendant as follows:
1. A declaration that he is the lawful owner of his own portion of the said building at No. 5, Emir Road, Kano.
2. A perpetual injunction restraining the Appellant/Defendant, his privies, servants and/or agents from threatening to eject or ejecting the Respondent/Plaintiff from No. 5, Emir Road, Kano.
3. And cost of the action.
The Appellant/Defendant on the other hand filed a Statement of Defence and counter-claim wherein he counter-claimed against the Respondent/Plaintiff as follows:
1. A declaration that the Estate of late Chief Bartholomew Nwokolo was shared after his death amongst his children on 20th April, 2001 in accordance with the customs and traditions of the people of Umudim Community of Nnewi L.G.A. of Anambra State of Nigeria by the elders of the family and the children of the late man.
2. A declaration that by virtue of the sharing conducted as in (i) above, the Defendant Counter-Claimant legally under the customs and traditions of the people of Umudim Community of Nnewi L.G.A. of Anambra State became the owner of the landed property lying, situate and known as No. 5, Emir Road, Sabon-Gari, Kano with effect from the 20th day of April, 2001.
3. An order directing the Plaintiff to forthwith vacate and deliver vacant possession of the said apartment he presently occupied at No. 5, Emir Road, Sabon-Gari, Kano to the Defendant/Counter-Claimant without any further delay.
4. Costs of filing and prosecuting both the Defence and counter-claim in this suit.
At the close of pleadings the case proceeded to trial. The Respondent called four (4) witnesses and tendered Exhibit A. The Appellant on the other hand called eight (8) witnesses including himself and tendered 16 Exhibits.
At the conclusion of the trial and address of counsel, the learned trial judge entered judgment for the Respondent while dismissing the Appellant’s counter-claim.
Being aggrieved by the decision of the trial Court, the Appellant lodged an appeal to this Court containing twenty-six grounds of appeal.
In accordance with the Rules of this Court parties have filed and exchanged their briefs of argument.
The Appellant relied on his Amended brief filed on the 8th June, 2015 – in which they distilled five issues for determination as follows:-
1. Whether the Evidence of PW2, the parties’ mother, was not contradicted and controverted as held by the trial Judge both under cross-examination when taken in line with the content of her own previous written documents especially Exhibits A1, B, O, P and Q and by other witnesses’ testimonies in the case so as to regard her evidence as weighty enough to support the Plaintiff/Respondent’s claim and therefore safe for the trial Court to have based its judgment on the evidence.
2. Whether it can be said from the judgment of the lower Court that the learned trial Judge understood the case before her and was right to have held that there was actual sharing or gift of the late Bartholomew Nwokolo?s Estate among his children in his lifetime and that the main issue was whether the sharing was lawful or unlawful, proper or improper, in order or out of order or null and void and whether there was no miscarriage of justice by so holding.
3. Whether the Appellant/Defendant and his witnesses’ testimonies contain material contradictions on the main issue in controversy as to discredit their testimonies and to deny the Appellant/Defendant of judgment based on his counter-claim before the trial Court.
4. Whether the sharing of the Estate of the late Bartholomew Nwokolo after his death was not an issue in the case and whether the testimonies of the Appellant/Defendant and his witnesses regarding the sharing of the said Estate were relevant in proving the Appellant/Defendant?s counter-claim to which if the learned trial Judge had adverted her mind would have given judgment to the Appellant/Defendant based on his counter-claim.
5. Whether the pieces of evidence the learned trial Judge relied upon to give judgment in favour of the Respondent/Plaintiff were proven evidence in the case and not borne out of her own emotional sentiments outside the evidence on records and she has thereby manifestly failed to properly evaluate the evidence in the case thereby occasioning a serious miscarriage and perversion of justice.
The Respondent relied on his brief of argument filed on the 25th January, 2018 wherein he raised three issues for determination as follows:
1. Whether from the evidence before the trial Court the Plaintiff was entitled to the relief sought?
2. Whether the learned trial Judge made a correct approach to the evidence tendered by both parties?
3. Whether from the evidence before the trial Court, the learned trial Judge was right in dismissing the counter-claim of the Defendant?
ARGUMENT OF ISSUES
ISSUE 1
Learned counsel for the Appellant submitted that the trial Court was wrong to have held that the evidence of PW2 was neither contradicted nor controverted and thereby relied on same. It is the contention of counsel that evidence of PW2 was controverted by the Appellant’s witnesses who led evidence to show that neither house No. 5 Emir Road, Sabon-Gari, Kano nor any of the Estate of late Bartholomew Nwokolo was shared during his life time between him and the Respondent nor among any of his children. He equally contended that the evidence of Pw2 was also controverted by Exhibits A1, B, P, O and Q.
He thus urged this Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent on the other hand submitted that there was no contradiction between the evidence of PW2 and Exhibits A1, B, P, O and Q. It is the contention of counsel that there is nowhere in the testimony of Pw2 where she claimed the property for herself. He contended that the PW2 having given in evidence the reason she applied for letter of Administration (Exhibit A1) which was a desperate measure by a mother to prevent her kids from killing each other.
Thus Exhibits A1, B, P, O and Q are all consistent with the fear expressed by PW2.
RESOLUTION OF ISSUE 1
A piece of evidence is said to be uncontroverted, un-impeached and unchallenged when the opposing party led no credible evidence to the contrary or discredited same as untruth under the heat of cross-examination. In other words, where the evidence of a party is un-rebutted by the adverse party, such evidence is said to be uncontroverted. It does not mean that the adverse party led no evidence at all. It does mean that the evidence led by the adverse party was not credible enough to impeach the truthfulness of the said evidence.
And it is trite law that when a piece of evidence is uncontroverted, the Court can act on same. See: MUSA & ORS. V YERIMA & ANOR.(1997) 7 NWLR (PT. 511) 27 @ 41 ? 42; ADELEKE & ORS.V IYANDA & ORS.(2001) 13 NWLR (PT. 729) 1 @ 22 ? 23; AND USMAN V ABUBAKAR (2001) 12 NWLR (PT. 728) 685 @ 706.
The contention of the Appellant in this issue is that Exhibits A1, B, P, O and Q that were issued at the instance of PW2 controverted her oral testimony that her late husband shared his properties as Gift to his children before his death.
Exhibits A1 is a letter of Administration issued to PW2. Exhibit B is a notice to tenant of No. 5, Emir Road, Sabon-Gari, Kano by PW2’s solicitors that the said house has been divided between the Appellant and the Respondent and the rent should be paid to the Appellant by those occupying the Appellant’s portion and to the Respondent by those occupying the Respondent’s portion.
Exhibits O, P and Q are Court processes involving the parties and PW2, anchored on Exhibit A1.
PW2 testified-in-chief at page 65 of the record that she applied for and got Exhibit A1 in her name as a desperate measure to ensure that peace reigns between her children – the Appellant and Respondent, which for all intent and purposes is quite reasonable given the circumstances of this case. She furthered that she did not obtain Exhibit A1 in her name to the effect that the properties belongs to her or that same has not been shared as a Gift to his children by her late husband while he was alive. I have gone through the cross-examination of P2 at pages 67 to 68 of the Record of Appeal but could not find where the Appellant?s counsel cross-examined PW2 on Exhibit A1.
Exhibits B, O, P and Q were all made in furtherance of the reason for Exhibit A1. PW2 was also not cross-examined on Exhibits B, O, P and Q. The only necessary implication of failure to cross-examine PW2 on those Exhibits is that her evidence relating to them are unchallenged and uncontroverted. On this score, the learned trial Judge was right when he held at page 364 of the Record of Appeal that PW2’s evidence was not controverted under cross-examination. Cross-examination is usually the forum to discredit the evidence of a witness and when same is not done as in the instant case, trying to do so now on appeal will amount to an afterthought. This issue is therefore resolved against the Appellant.
ISSUE 2
Learned counsel for the Appellant submitted that the Court is bound to resolve the issues joined by the parties before it and not to suomotu make a case for either of the parties and then decide on the case so formulated contrary to the case of the parties before it. He referred to the case of KRAUS THOMPSON ORGANISATION LTD V UNIVERSITY OF CALABAR (2004) ALL FWLR (Pt. 209) 1148; ALWA?U V YAKUBU (2004) ALL FWLR (Pt. 228) 702; NWOKEDI V EGBE (2004) ALL FWLR (Pt 216) 546.
It is the contention of counsel that based on the pleadings of the parties the issue in controversy was whether the actual sharing of the Estate of late Bartholomew Nwokolo including the house No. 5 Emir Road among his children was during his life time or after his death and not whether the sharing of house No. 5 Emir Road during his life time invalid as raised by the trial judge. He referred to the Respondent’s Statement of Claim at page 214 and the Appellant’s Statement of Defence and Counter-Claim at page 234 of the record.
He submitted that the trial judge misconceived the issues before her when she held that the main issue was whether the sharing of their late father estate during his lifetime was lawful or unlawful, valid or invalid.
He contended that the misappraisal of the issue by the trial judge had occasioned a miscarriage of justice against the Appellant. He thus urged this Court to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent on the other hand submitted that the main issue before the trial Court was whether or not there was a gift inter vivos of No. 5 Emir Road Sabon Gari Kano and No. 15 Niger Street, Sabon Gari Kano.
He submitted that the trial judge having held that there was a gift of No. 5 Emir Road Sabon Gari Kano, the trial judge had resolved the main issue in controversy. Thus the statement as to the validity of the gift was a superfluity and ought to be situated in the con which it was made. He referred to the page 369 (line 1 – 16) of the record.
ISSUE 5
Learned counsel for the Appellant submitted that the trial Court failed to properly evaluate the evidence (documentary and oral evidence) of both parties before it. It is the contention of counsel that the evidence of the Appellant at the trial Court outweighs that of the Respondent. He submitted that while the Appellant’s evidence was consistent on the fact that their late father did not share his property including house No. 5 Emir road, Kano among them in his life time, the evidence of the Respondent that their late father shared the disputed property between him and the Appellant was full of contradictions. He also submitted that the documentary evidence before the trial Court which was also not properly evaluated by the trial Court supports the Appellant?s case that the father’s estate including house 5 Emir Road, Kano was not shared by their late father during his lifetime. He referred to Exhibits A, A1, B, L, K, O, P and Q. However the trial Court treated the documentary evidence and oral evidence of the Appellant as irrelevant while upholding that of the Respondent.
He thus urged this Court to intervene and re-evaluate the evidence on the record of proceeding and enter judgment for the Appellant as the scale of justice will tilt in favour of the Appellant, if the evidence is properly evaluated.
Learned counsel for the Respondent on the other hand submitted that the trial judge properly evaluated both the oral and documentary evidence of both parties.
He submitted that the case of the Respondent which was based on equitable principle of gift inter vivos was consistent and unchallenged even under cross-examination. He referred to the evidence of PW1 – PW4, while the Appellant’s case was based on inheritance which was totally irrelevant to the claim of the Respondent. Thus the trial judge was right in giving judgment in favour of the Respondent.
He submitted that the trial Court having exercised its statutory duty of evaluating the evidence before it and ascribing probative value thereto, an appellate Court would not interfere with its finding unless such findings are found to be perverse. He relied on the case of HARUNA V AG FEDERATION (2012) ALL FWLR (Pt. 632) 1617; LAMBERT V OKUJAGU (2015) ALL FWLR (Pt. 808) 652.
He submitted that in this case the findings of the Court are not perverse but flow from the evidence of the parties before it.
He thus urged this Court to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUES 2 AND 5
The grouse of the Appellant in these two issues is that the learned trial Judge failed in his duty to properly appraise or evaluate the pieces of evidence adduced by respective parties in his judgment.
It is trite in law that evaluation of evidence is within the exclusive domain of the trial Judge who had the opportunity of observing the demeanor and countenances of the witnesses. Such observances would therefore assist him in making an informed evaluation of the evidence by each and every witness who testified before him. See: SULE ANYAEGWU V THE STATE (2009) SCNJ 91; JOSEPH OYEWOLE V KARIMU AKANDE & ANOR. (2009) 7 SCNJ 225; GUARDIAN NEWSPAPER LTD. & ANOR. V REV. PASTGOR C. I. AJEH (2011) 4 SCNJ 152.
Therefore the trial Court is duty bound to properly evaluate the totality of evidence adduced at trial by parties, else the Appellate Court would intervene and right the wrong.
In GUARDIAN NEWSPAPER LTD. V REV. PASTOR C. I. AJEH (SUPRA) @ 167 PARAGRAPH 35 TO 168, the Supreme Court, per Rhodes-Vivour, opined, thus:
”The trial Judge would have no difficulty in arriving at the correct decision if evidence is properly evaluated. Consequently, where evidence is properly evaluated, i.e. to say when all the principles of law relevant are properly considered, an Appeal Court would be in much difficulty trying to disturb the findings arrived at by the trial Judge. Such findings cannot be disturbed by an Appeal Court. Receipts of relevant evidence is perception, while evaluation entails the weighing of the evidence bearing in mind the surrounding circumstances of the case. Finding of fact by the trial Judge involves both perception and evaluation.”
Conversely, where the trial Court failed to properly evaluate the pieces of evidence adduced by parties, an appellate Court is eminently empowered to re-evaluate same and make appropriate findings to meet the justice of the case. In IHEONUNEKWU NDUKWE V THE STATE (2009) 2 SCNJ 223 @ 257 PAR. 20, the apex Court reiterated the position of the law, succinctly, thus:
”In other words, where a trial Court fails in evaluating facts found by it, an appellate Court can re-examine the whole facts and come to an independent decision as the trial Court.”
The case of the Plaintiff/Respondent before the trial Court, as can be garnered from his pleadings and evidence of his witnesses is that their father, while alive, sometime in August 1999, while celebrating the new yam festival with his family in his family house in Kano, gathered all his children with the exception of their eldest sister, Virginia who was in Lagos, and their brother Lotanna who was abroad. That on that occasion, their father shared his properties among his children. That the subject matter of this suit, No. 5, Emir Road, Sabon-Gari, Kano, which himself and the Appellant were occupying was divided by their father for the two of them. And that while their father was still alive, he (Respondent) erected a demarcation on the said No. 5, Emir Road, Sabon-Gari, Kano without the Appellant who was residing there complaining. That all their other brothers and sisters took possession of their own share without any qualms.
And that to his surprise, after the death and burial of their father in 2001, the Appellant claimed that by virtue of the fact that he is the first son, that he is entitled to the whole of house No. 5, Emir Road, Sabo-Gari, Kano.
On the other side of the divide, the Appellant counter-claimed that their father in his lifetime never shared any of his properties to his children. That the only sharing of their father’s properties was done in 2001 after their father’s death and burial, by their elders and kinsmen. And that the sharing was in accordance with Nnewi custom and tradition, which inter alia, gave the first son the right to first choose out of his late father’s properties, and that he has chosen house No. 5, Emir Road, Sabon-Gari Kano.
A careful consultation of the Record of Appeal from pages 361 – 364 therein show that the learned trial Judge painstakingly reviewed the totality of evidence adduced in this case by respective parties and their witnesses. After this extensive review, the learned trial Judge at page 364, 2nd paragraph therein to pages 365 concluded as follows:
”The contention of the Defendant and his witnesses that there is no (sic: was) Gift by late Bartholomew N. Nwokolo to his children in 1999 during the new yam festival because it was not documented and witnessed by his brother or kinsmen will not hold. This is because none of the Plaintiff’s witnesses said an outsider was present when the Gift was made. PW4 even said the gift was not documented because all of them present are members of the same family. This corroborates the evidence of DW8, the Defendant himself when he said the sharing of stores at Dawanau after their father’s death was not documented because all of them present are members of the same family, even though the sharing of Dawanau stores is not an issue before the Court, and the Defendant cannot have his cake and eat it all. If he is saying that because the Gift made to them by their late father was not documented is unlawful, it follows therefore that the stores which shared among his brothers, himself is also not documented is also unlawful. But having justified his own action as lawful, it also follows that the Gift made to them by their late father is also lawful.
The evidence of DW4, DW5, and DW7 who are witnesses for the Defendant is to the effect that it is normal and also in line with the Nnewi custom for a man to share his property during his life time. DW5 went further to say that he has already shared his property among his own children. But the same DW5 disputed the sharing of property by late Bartholomew N. Nwokolo to his children while he admitted under cross-examination that he was not present during the celebration of new yam festival at late Nwokolo?s family in Kano. This goes to show that since he was not present, he is therefore not in a position to say whether there was Gift of property by late Bartholomew N. Nwokolo to his children or not.
While DW5 and DW7 admitted the fact that late Bartholomew Nwokolo used to celebrate the new yam festival either in Kano or in Nnewi, DW1 in her evidence and DW2 said they are Christians and do not celebrate the new yam festival. The Defendant also in his evidence told the Court that their late father used to celebrate new yam festival in Nnewi but not Kano. So the contradiction among the Defendant and his witnesses clearly portrayed them to be witnesses of untruth.
In fact their evidence is more on the sharing the property of late Bartholomew N. Nwokolo after his death which is not the issue before the Court. So much time was also wasted on the resolution of dispute in the family which is also not an issue for determination before this Court. The exhibits tendered are of no relevance whatsoever to the case before the Court. The claim of the Plaintiff is for a declaration that he is the lawful owner of the portion of No. 5, Emir Road, given to him by his late father. The evidence of the Defendant and his witnesses relate to the sharing of the property of late Nwokolo after his death which is a deviation from the Plaintiff’s claim.”
Consequent upon further review at page 366, the learned trial Judge at latter part of pages 366 and 367 of the Record, ruminated further as follows:
”A Gift is made during one’s lifetime, while inheritance is after the death of a person. And the issue before Court is what was done during the lifetime of late Bartholomew Nwokolo. It is also in evidence that both the Plaintiff and the Defendant were living at No. 5, Emir Road, Sabon-Gari, Kano before their late father shared the property to them.
It is also in evidence that the demarcation made by the Plaintiff in the property was done during the lifetime of their late father Bartholomew N. Nwokolo. This presupposes his consent to the demarcation.
PW2, the mother to the parties told the Court that it was after her late husband has shared the property between the Plaintiff and the Defendant that he allowed the Plaintiff to demarcate so that each one of them will have his own portion. This piece of evidence was not challenged under cross-examination which shows that there was a Gift of No. 5, Emir Road, Sabon-Gari, Kano to be shared between the Plaintiff and the Defendant.
Having dissected the Record of Appeal in this matter and being seised of the fact and evidence of this case, I am unable to fault the learned trial Judge appraisal of the facts and evidence led in this matter by respective parties and their witnesses. It is painstaking and unassailable. The totality of evidence led by parties was properly evaluated by the learned trial Judge. On this note, Issues 2 and 5 are hereby resolved against the Appellant.
ISSUE 3
Learned counsel for the Appellant submitted that for contradictions in evidence of witnesses to vitiate a Court proceedings, it must be a material contradiction which strikes at the basis of the case and sufficient to raise doubt in the mind of the Court and not merely trivial. He referred to the case of ADMIN. GEN. & PUBLIC TRUSTEES DELTA STATE V OGOGO (2006) ALL FWLR (Pt. 293) 256.
It is the contention of counsel that the issue whether the late Bartholomew Nwokolo used to celebrate new yam festival or not, relied upon by the trial judge to hold that there were material contradictions in the testimonies of the Appellant’s witnesses was not an issue in controversy before the Court and is therefore trivial. He submitted that the Respondent’s case was not built on that fact or that the sharing of his father’s Estate including the disputed property while he was alive was on the new yam festival. He referred to the evidence of PW1 at page 48 and 58 of the record.
He thus urged this Court to hold that the contradictions if any in the evidence of the Appellant’s witnesses as stated by the trial Court in her judgment are not material contradictions to have made the learned trial judge to hold that the Appellant’s witnesses were untruthful witnesses.
Learned counsel for the Respondent on the other hand submitted that it is trite law that evidence adduced under cross-examination could constitute evidence in support of the case. He referred to the case of AKOMOLAFE & ANR V GUARDIAN PRESS LTD & 3 ORS (2010) 1 SC (Pt 1) 58. It is the contention of counsel that the issue of new yam festival was part of the case of the respondent having given evidence under cross-examination that the disputed property was shared at the end of 1999 during the new yam festival. He referred to page 66 line 9 of the record. He submitted that while the evidence was confirmed by PW3 and PW4, the Appellant’s witnesses evidence on the said issue was contradictory, hence the finding of the trial Court that the Appellant’s witnesses were untruthful.
RESOLUTION OF ISSUE 3
Evidence of a party is said to be contradictory to each other, when the evidence of one or some of the party’s witness or witnesses asserts the opposite of the other witness or witnesses of the same party. In other words where each witness evidence does not affirm the other witness or witnesses evidence, same is said to contradict itself and fatal to that party’s case. See: DOMINIC PRINCENT & ANOR. V THE STATE (2002) 12 SCNJ 280; ANTHONY ISIBOR V THE STATE (2002) 2 SCNJ 162; CHIEF EDWIN OBIANEFO OKIKE & ORS.V ANTHONY AGBOCHIKE & ORS. (1979) 12 SCNJ 343; EBENEZER NWOKORO & ORS. V TITUS ONUMA & ANOR. (1999) 4 SCNJ 250 and OLADOTUN OGUNBAYO V STATE (2007) 3 SCNJ 119.
In the case of USMAN KAZA V THE STATE (2008) 2 SCNJ 373 @ 400, PARAGRAPH 20, the Supreme Court, opined, thus:
”There can only be contradictory evidence where a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them.”
Therefore, minor discrepancies or slip in details in the evidence of witnesses cannot amount to contradiction in the said pieces of evidence.
The Appellant’s complaint in this issue borders on the evaluation and findings of fact by the learned trial Judge at pages 365 of the Record of Appeal. I shall reproduce same hereunder for ease of appreciation, thus:
”The evidence of DW4, DW5 and DW7 who are witnesses for the Defendant is to the effect that it is normal and also in line with Nnewi custom for a man to share his property during his lifetime. DW5 went further to say that he has already shared his property among his own children. But the same DW5 disputed the sharing of property by late Bartholomew N. Nwokolo to his children while he admitted under cross-examination that he was not present during the celebration of new yam festival at late Nwokolo’s family in Kano. This goes to show that since he was not present, he is therefore not in a position to say whether there was a Gift of property by late Bartholomew N. Nwokolo to his children or not. While DW5 and Dw7 admitted the fact that late Bartholomew Nwokolo used to celebrate the new yam festival either in Kano or in Nnewi, DW1 in her evidence and DW2 said they are Christians and do not celebrate the new yam festival because it is a tradition of pagans. DW8, the Defendant also in his evidence told the Court that their late father used to celebrate new yam festival in Nnewi but not Kano.
So the contradictions among the Defendant and his witnesses clearly portray them to be witnesses of untruth.”
I have carefully gone through the evidence of Appellant’s witnesses as contained at pages 81 to 150 of the Record of Appeal, and same clearly contained the contradictions highlighted by the learned trial Judge in the extract of his judgment reproduced above.
The argument of the Appellant’s counsel that whether or not the late Bartholomew N. Nwokolo used to celebrate new yam festival was not an issue before the lower Court is of no moment, in view of the fact that PW2, PW3 and PW4 testified to same in relation to the details as to when in 1999, their late husband and father shared his properties as a Gift to his children. The fact that it was customary for late Bartholomew N. Nwokolo to celebrate the new yam festival, acquired the toga of fact relevant to fact in issue and ipso facto, relevant and admissible evidence by virtue of Section 7 of the Evidence Act, 2011.
The said Section 7 of Evidence Act, 2011, provides as follows:
”Section 7: Facts:-
(a) necessary to explain or introduce a fact in issue or relevant fact;
(b) which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) which establish the identity of anything or person whose identity is relevant;
(d) which fix the time or place at which any fact in issue or relevant fact happened; or
(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.”
A party’s case is built on the totality of the evidence of his witnesses and not just the evidence of one of his witnesses. Therefore the fact that PW1’s evidence did not contain the details of when precisely in 1999 his late father shared his landed properties among his children as a Gift does not translate to the fact that PW2, PW3 and PW4’s evidence on that score are not relevant. In deed, the evidence of details of when precisely the Gift was made by late Bartholomew N. Nwokolo to his children generally and in particular the subject matter of this case to the Plaintiff and the Defendant, would attract high premium when it is appreciated that such evidence came from PW2 who is the mother of the Appellant and the Respondent, and PW3 and PW4 who are younger siblings to the Appellant and the Respondent.
Therefore, the contradictions in the evidence of Appellant witnesses on whether or not the late Bartholomew N. Nwokolo customarily celebrates new yam festival are material contradictions and not mere discrepancies.
On this score, this issue is also resolved against the Appellant.
ISSUE 4
Learned counsel for the Appellant submitted that the Appellant having pleaded and proved that the sharing of the estate of late Bartholomew Nwokolo including house No. 5 Emir Road was done after his death and the Respondent joined issue with the Appellant on that. It is the contention of counsel that the trial Court was wrong to have held that the sharing of the Estate of late Bartholomew Nwokolo after his death was not an issue in controversy and that the evidence adduced by the Appellant in that regard was irrelevant. He referred to paragraphs 9, 10, 11 and 12 of the Appellant’s Statement of Defence and paragraphs 8(i), (ii), (iii) of his Counter-claim dated 11th March, 2005.
He thus urged this Court to set aside the judgment of the trial Court and enter judgment in favour of the Appellant.
Learned counsel for the Respondent submitted that the trial judge having made a finding that No. 5 Emir Road was shared inter vivos between the Appellant and the Respondent and did not form part of the estate that was shared after the death of Bartholomew Nwokolo, the counter-claim ought to fail.
He also contended that the evidence of DW1 – DW8 were irrelevant to determine whether late Bartholomew Nwokolo made a gift inter vivos as they were not present at the meeting when the gift was made.
RESOLUTION OF ISSUE 4
There is no doubt that a counter-claim is a separate and distinct claim from the main claim. This is so because even if the main claim fails or is withdrawn or struck out, the counter-claim would survive. See GENERAL YAKUBU GOWON V MRS. EDITH I. IKE-OKONGWU & ORS. (2003) 1 SCNJ 453; ATTORNEY-GENERAL OF LAGOS STATE V ATTORNEY-GENERAL OF THE FEDERATION (2004) 12 SCNJ 1; OGLI OKO MEMORIAL FARMS LIMITED & ANOR V NIGERIA AGRICULTURAL AND CO-OPERATIVE BANK LTD.& ANOR (2008) 4 SCNJ 436.
However, a counter is usually taken together with the main claim and the fact that the main claim succeeded does not mean that the counter-claim has failed. The same standard of proof required to prove the main claim is also necessary to prove the counter-claim. See NARINDEX TRUST LTD. & ANOR V NIGERIAN INTERCONTINENTAL MERCHANT BANK LTD. (2001) 4 SCNJ 208; and JERIC NIGERIA LTD. V UNION BANK OF NIGERIA PLC (2000) 12 SCNJ 184.
I have perused the Record of Appeal in this matter, precisely the pleadings of parties together with their respective evidence and it is clear that the issue before the Court was whether the Gift inter vivos made by late Bartholomew N. Nwokolo to his children is valid. That is the issue before Court and having been determined in the affirmative, the issue of whether the Estate of late Bartholomew N. Nwokolo was shared as inheritance after his death as counter-claimed by the Appellant becomes otiose. A Gift made inter vivos, once accepted, cannot be revoked by the donor or any other person in the absence of fraud, misrepresentation, mistake or total failure of the object of the Gift. See ANYAEGBUNAM V OSAKA (2000) 5 NWLR (PT. 657) 386 @ 401 and IMAH V OKOGBE (1993) 9 NWLR (PT. 316) 159 @ 173.
It is pertinent to point out the fact that it was this misconception of the main issue before the Court that resulted in the Appellant expending his energy in establishing inheritance in his pleadings and evidence instead of establishing the existence of any of the invalidating factors of a Gift made inter vivos; especially in the circumstances of this case whereby once the main claim succeeds, the counter-claim becomes unnecessary. Appellant’s pleadings and evidence of his witnesses at pages 229 to 234 and 81 to 150 refers.
In the light of the above, this issue is also resolved for the Respondent.
Having resolved all the issues in this appeal against the Appellant, the appeal fails and is hereby dismissed. The judgment of Hon. Justice Tani Hassan Yusuf of High Court of Kano State, delivered on 19th December, 2008 in Suit No. K/65/2003, is hereby affirmed. I make no order as to cost.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, JCA.
I agree with the manner in which he treated the four (4) issues articulated by the Appellant and resolved against her. I have nothing more to add.
This appeal is hereby dismissed. I abide by all the orders contained in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had perused the leading judgment just delivered by my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA. I endorse intoto, the reasoning and conclusion in it.
Once the trial Court had properly evaluated the totality of evidence adduced by respective parties, the law does not allow the appellate Court to interfere just for the fun of doing so.
I too penalize the appeal with a deserved dismissal.
Appearances:
J. A. Kehinde Olaitan, Esq.For Appellant(s)
Dele Olaniyan, Esq.For Respondent(s)
