MR. PAUL EZEILO & ANOR v. ANTHONY OKWUCHUKWU EZEONU (2019)

MR. PAUL EZEILO & ANOR v. ANTHONY OKWUCHUKWU EZEONU

(2019)LCN/13941(CA)

In The Court of Appeal of Nigeria

On Monday, the 29th day of July, 2019

CA/E/284/2009

RATIO

PRACTICE AND PROCEDURE: LEAVE OF COURT: DUTY AND LIMITATIONS OF A COURT IN GRANTING LEAVE TO COMMENCE A MATTER

The law is trite that when leave is sought to commence a proceeding or an action; the Court is bound to restrict itself to the preliminary matters and must as a matter of fairness and justice to the affected parties before it desist from touching upon the substantive issues at that precursory stage. Pronouncements on the substantive matter before the Court including the restraining orders at that stage ultra vires the powers of the Court. In OBIEGBU VS. UNIVERSITY OF ABUJA (2005) 9 NWLR (PT. 930) 310 this Court (per Muhammad JCA) had this to say:
“The above excerpt from the ruling has really gone beyond its scope. The ruling should have limited itself to the issues only-raised by the preliminary objection. The trite position of law is that a learned trial Judge is bound as much as possible to-restrain himself from making any pronouncement on the substantive matter before him which was yet to be heard on its merit … those issues addressed by the learned trial Judge, would have been dealt with at the hearing stage of the substantive matter …” PER ABUBAKAR SADIQ UMAR, J.C.A.

FUNDAMENTAL RIGHTS AND PROCEDURE:  HOW TO DETERMINE WHETHER A MATTER SHOULD BE BROUGHT UNDER A FUNDAMENTAL RIGHTS ACTION

The law is that for an action to be competently brought under the Fundamental Rights Enforcement Rules (FREP, Rules) the breach of the fundamental right alleged must be the main and not a mere adjunct to the application. In other words, the violation of a fundamental right guaranteed under the Constitution of the Federal Republic of Nigeria must be the principal claim or relief and not merely an incidental or ancillary claim or relief. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) P. 517, Chukwuogor v. Chukwuogor (2006) 49 W.R.N. p. 183 and Garba v. University of Maiduguri (1986) 2 NWLR (Pt. 18) p. 559. PER ABUBAKAR SADIQ UMAR, J.C.A.

EVIDENCE: THE POSITION OF THE LAW WHEN THE COURT IS FACED WITH DOCUMENTARY AND ORAL EVIDENCE IN THE SAME MATTER

The law is sacrosanct that where there are documentary as well as oral evidence before the Court, the documentary evidence should be used as the hanger with which to assess the oral evidence. I am fortified on this by the decision of the Apex Court in KARIBO & ORS V. GREND & ANOR (1992) 3 NWLR (Pt. 230) 426 where Nnaemeka-Agu, J.s.c., held thus;
…. A documentary evidence should and ought to be used as a hanger from which to test the veracity of the Ora/ testimonies. “
Another instructive decision is found in the dictum of my Lord, J.S.C. the case of ODUTOLA & ORS V.MABOGUNJE & ORS Rhodes-Vivour,  (2013) 7 NWLR (Pt. 1354) 522 to the effect that:
….When documentary evidence supports Oral evidence, Oral evidence becomes more credible… The reasoning being that documentary evidence serves as a hanger from which to assess Ora/ testimony… “
Similarly, in the case of ZAKIRAI V. MUHAMMED & ORS (2017) LPELR ? 42349, the Apex Court held thus;
….It is an elementary principle that documentary evidence is used as a hanger to test veracity of evidence… ” Per Augie, J.S.C. See also BUNGE V. GOV. RIVERS STATE & ORS (2006) 1 ANLR 65 and EGHAREVBA V. OSAGIE (2009) 18 NWLR (Pt. 1173) 299.
In this appeal, there were documents and depositions by way of affidavit evidence. The learned trial Court failed to juxtapose both document and affidavit evidence in order to determine the value to be attached to the case made out by each party. This failure renders the decision of the trial Court perverse and liable to be over-turned by this Court. PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A

 

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

1. MR. PAUL EZEILO
2. MR. MATTHEW OBUNIKE EZEILO Appellant(s)

AND

ANTHONY OKWUCHUKWU EZEONU Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of justice, of Aguta, dated 12th day of December, 2007 delivered by his Lordship, Honorable Justice E.U. Uzodike granting the applicant?s prayers with sum of N100, 000.00 awarded as damages for the Police extortion and incarceration of the Applicants.

FACTS
The Appellants and the Respondents in this appeal and two other persons now late were embroiled in a land dispute over parcels of land that culminated in institution of suit no. AA/153/90 at the High Court, Aguata Anambra State. The Applicants claimed that when the Respondents discovered that their case was dismissed after abandoning it for one year resorted to arm-twisting tactics by; intimidating, harassing, arresting, detaining and extorting the Applicants (now Respondent) in this Appeal with the connivance of the police by; giving them malicious information wherein the Applicants instituted an action against the respondents under Fundamental Right Enforcement procedure claiming reliefs as follows:
1. An Order of perpetual injunction of the honorable Court restraining the respondents, their agents and privies from further arresting, intimidating or molesting the applicants.
2. An Order of Court restraining the respondents from using the police to interfere with the Applicant?s enjoyment of their economic trees on their pieces of land situate at Umunkpu village Ikenga.
3. A declaration that the arrest and detention of the Applicants by the police from Ekwulobia police station to Awka state CID on malicious information of 5th and 6th Respondents which resulted to untold hardship to the Applicants and their families is illegal, malicious, unconstitutional, void and a breach of the provision of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria.

In his counter affidavit to the motion dated the 14th day of May, 2007, the 6th Respondent denied the averments in Applicant?s affidavit in support of the application to the effect that he did not pray the police to arrest and/or detain any one including the Applicants on record. He contended that the 7th Respondent did not write any petition to the police but was deliberately included in the suit for no just cause. On 26/11/2007, counsel to the parties adumbrated and adopted their respective written submissions. The learned trial judge on 12/12/007 entered judgment for the Applicants against the Respondents.

Dissatisfied with the judgment, the Respondents filed Notice of Appeal containing 5 grounds of appeal. Out of the 5 grounds of appeal, the Appellant?s counsel distilled the following issues for determination:
(1) Whether the filing of an affidavit of services by the respondents in line with Order 2, Rule 1 (4) Fundamental Rights (Enforcement Procedure) Rules, 1979 which provides that an affidavit is mandatory and/or a condition precedent that must be fulfilled for the Court below to assume jurisdiction in respect of suit No. AG/MISC 28/2007.
(2) Whether the finding of the Court below that 1918 case won by the respondents is perverse and/or remains unchallenged.
(3) Whether the Court below has not taken an erroneous view of the evidence placed before it in suit No. AG/MISC. 28/2008 and whether the judgment of the Court below in this matter contains the basic ingredients required of a valid judgment by law which includes proper analysis, evaluation, consideration and resolution of issues raised by the parties before the Court.
(4) Whether suit No. AG/MISC. 28/2007 as a whole was a suit properly brought under the Fundamental Rights (Enforcement Procedure) Rules, 1979.
(5) Whether in the face of affidavits which are irreconcilable in conflict, the Court below was right when it entered judgment in favor of the respondents and two other persons now late or dead without first getting the conflicts resolved by calling oral evidence.
(6) Whether the service of the originating processes filed in suit No. AG/MISC.28/2007, now on appeal to this Court, that were meant to KAG/MISC.28/2007 but served on the O.C Legal, State CID, Awka, Anambra State without the leave and and/or order of the trial High Court authorizing the service of the said originating process on the 1st – 5th respondents through the O.C Legal, State CID, Awka, Anambra state is a proper and/or personal service of the originating processes on the 1st -5th respondents in suit No. AG/MISC.28/2007 and the legal effect.

Learned counsel for the Respondents in his brief adopted seriatim the issues as formulated by the Applicants with an addition of two more issues.

Having perused through the issues formulated by the parties, it is my considered view that a sole issue encompassing all the issues submitted by the parties would suffice in determination of this appeal. The lone issue is as follows:
Whether the Court below properly considered and resolved all the issues raised by the parties

Learned Counsel for the Appellants submitted that the Court below did not evaluate the evidence before it and therefore failed to make findings of fact on serious and conflicting issues of fact arising from the affidavit evidence of both parties in the case before delivering its judgment and so came to wrong decision. He submitted that evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstance of each case in order to determine whether the totality of evidence supports a finding of fact which a party adducing the evidence seeks that the trial court should make. He contended that in the circumstance of the case, the totality of the affidavit evidence placed before the Court below did not support the finding of fact which the Respondents sought the Court below to make. He cited the case of: ONOJEME VS AZODO (2005) ALL FWLR (PART 275) P. 552 AT P. 556. Counsel further submitted that the judgment of the Court below lacked the basic ingredients required of a valid judgment by law. He contended that a lot of issues were raised by the parties which include:
a. Whether the Court below has the competence to hear and determine the motion on Notice and the impropriety of the Court in having granted all prayers contained in the statement accompanying application for leave and motion on Notice while hearing the ex parte application for leave and motion on Notice while hearing the exparte.
b. Whether the application filed by the respondents for the enforcement of their fundamental rights and the reliefs sought therein were reliefs or injuries redress able under the Fundamental Rights (Enforcement Procedure) Rules, 1979.
c. Whether the Court below lacked jurisdiction when it heard and determined suit No. AG/MISC.28/2007.

Learned counsel submitted that these issues raised by the parties at the Court below were not considered or addressed by the Court and it went ahead to grant reliefs that was never sought by the Applicants in their motion ex-parte while hearing application for leave. He submitted that failure of the Court to consider and resolve all the issues raised by the parties in suit No. AG/MISC.28/2007 before it delivered its judgment of 12 day of December, 2007 occasioned a serious miscarriage of justice against the Appellants.

Counsel further submitted that the dispute between the parties (Applicants in suit No, AG/MISC/2007 and Appellants) on this matter is not one covered by the provisions of the Fundamental Right (Enforcement Procedure) Rules, 1979. To buttress this point, learned Counsel argued that mere involvement of the question of Enforcement of Fundamental Rights in a case does not automatically entitle the applicants to approach the Court by the fundamental Right Procedure. He submitted that complaint relating to infringement of rights must be the main plank on which the case rest and not that which is merely ancillary or incidental to another claim, particularly where that other claim is not one of the matters provided for in Chapter 4 of the Constitution. He referred to GOVERNOR, KWARA STATE VS LAWAL (2006) ALL FWLR (PART 336) P. 313 AT P. 315 RATION 1. He submitted that a party who in violation of the law, entered onto a property in dispute which property is already handed over to a law Court for adjudication and alters, destroys, or deal with the subject matter of the law suit injuriously and threatens the lives of the party cannot be heard complaining that his fundamental rights have been breached if the adverse party decided to call the attention of the law enforcement agents into the matter.

RESPONDENTS ARGUMENTS:
Respondents counsel submitted that the Court below was right when it entered judgment in favor of the Respondents because there was nothing in affidavit that needed to be resolved that was unresolved. He submitted further that where the evidence before the trial Court is documentary and not based on the demeanor or credibility of witnesses alone, the Appellate Court is in good position as the trial Court to evaluate such documentary evidence and draw the necessary inferences. He contended that a closer study of all the documents filed in this case; the affidavit, further and the further of Applicants on one side and the counter affidavit of the Respondents in the lower Court would result in the same conclusion reached by the lower Court. He submitted that the Applicants were arrested, intimidated, molested and extorted by the 1st to 5th respondents through the vexations and malicious report of the 6th and 7th respondents; and kept at the Police cell for weeks before they were released after extorting heavy sum of money from them. He urged the Court to dismiss this appeal.

RESOLUTION:
Before proceeding, it is pertinent to first address additional issues raised by the Respondents in their amended brief. Without much ado, the law remains that issues must relate to the grounds of appeal already filed. This Court has instructively said:
It is our law that an issue or issues could only be framed from a competent ground of appeal. In other words, it is not permissible for any of the parties to canvass or tender argument on issues having no bearing with any of the grounds of appeal as an argument canvassed on an issue not arising from a ground of appeal is incompetent and liable to be struck out. Each party to an appeal is entitled to formulate what are in his opinion, the issues for determination but the issue so formulated must arise from and be related to the grounds of appeal filed. In the instant case, the formulation contained in the second issue on the respondent’s brief, is not related to any of the grounds of appeal filed and therefore incompetent. See Madagwa v. State (1988) 5 NWLR (Pt.92) 60; African Petroleum v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 423, Okoye v. Nigerian Construction and Furniture Company Ltd (1991) 6 NWLR (Pt.199) 501 at 533; Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208.” Per UMOREN, J.C.A (P. 13, paras. B-F)
In the instant case, the Respondents cannot after adopting the issues of the Appellant file additional issues not related to grounds of appeal of the Appellant when they did not file a cross appeal. Therefore, on the strength of the above authorities, the two additional issues being non-sequitor are hereby accordingly struck out.

Having said the foregoing, I shall now consider the instant appeal on the merit. At page 2 of the record of appeal, the Applicants specifically sought for leave to enforce their fundamental rights as well as praying that the leave when granted shall operate as a stay of all actions in respect of matters connected therewith until final determination of the motion on Notice. On the contrary, at page 17 of the records of appeal, it can be seen that the Court below went on voyage of granting prayers far beyond the reliefs sought on the face of the motion paper by the Applicants. This, the Court did to the detriment of the integrity of the entire proceedings. Such premature steps prejudiced not only the Respondents before the Court, but negated the spirit and intendments of Fundamental Right Enforcement Procedure Rules, 1979. In essence, I would therefore not mince words in saying that the Court was wrong when it granted reliefs as thus:
(1) That the Applicants are granted leave to enforce their fundamental human rights as enshrined in the 1999 Constitution.
(2) That the leave so obtained shall not operate as a stay against all actions as affected by the complaint of the Applicants until the substantive motion is determined.
(3) That the respondents and their agents are restrained by this order from further arresting, intimidating or molesting the Applicants.
(4) That the Respondents are restrained from using the police to interfere with the Applicant?s enjoyment of their economic trees on their parcels of land situate at Umunkpu Village Ikenga.
(5) That the arrest and detention of the Applicants from the police station at Ekwulobia to State C.I.D Awka is illegal and unconstitutional.”

The law is trite that when leave is sought to commence a proceeding or an action; the Court is bound to restrict itself to the preliminary matters and must as a matter of fairness and justice to the affected parties before it desist from touching upon the substantive issues at that precursory stage. Pronouncements on the substantive matter before the Court including the restraining orders at that stage ultra vires the powers of the Court. In OBIEGBU VS. UNIVERSITY OF ABUJA (2005) 9 NWLR (PT. 930) 310 this Court (per Muhammad JCA) had this to say:
“The above excerpt from the ruling has really gone beyond its scope. The ruling should have limited itself to the issues only-raised by the preliminary objection. The trite position of law is that a learned trial Judge is bound as much as possible to-restrain himself from making any pronouncement on the substantive matter before him which was yet to be heard on its merit … those issues addressed by the learned trial Judge, would have been dealt with at the hearing stage of the substantive matter …”
See also, Ilori v. Benson (2005) FWLR (Pt. 26) 1846 at 1859, Ita v. Bekonson (2001) FWLR (Pt. 62) 1877, Onwuegbu v. Ibrahim (1997) 3 NWLR (Pt. 491) 110, Oghenekohwo Queen v. Odemekpore Adaroh (1999) 1 NWLR (Pt. 586) 330 at 337.
The Courts have been warned that in dealing with interlocutory issues they should not delve into the substantive matters. Those substantive issues are to be left for the main trial. Courts are enjoined not to resolve issues meant for the substantive suit at interlocutory stage. The Courts have held that the Law is similarly now common knowledge that a Court is required to avoid making pronouncement or deciding issues at the preliminary stage which would touch or decide on the issues to be decided in the substantive suit. The Supreme Court in a myriad of decisions followed by this Court has consistently held that issues to be determined in a substantive Appeal should not unwittingly be decided at interlocutory stage. See NDIC vs. SBN Plc. (2003) 1 NWLR Pt.801 Pg.371, Iweka vs. SCOA (Nig.) Ltd (2000) 7 NWLR Pt.664 Pg. 325, Ola vs. Williams (2003) 5 NWLR Pg.812 pg. 48, JVC Professional Products (UK) Ltd vs. Mr. Michael Famuyide (2010) LPELR 4383.

Beyond this point, it is incongruous for the lower Court to hold in one breathe that leave so granted shall not operate as a stay of all actions but went ahead to make orders suggestive of the final decision in the matter. This is outrageously strange!

Aside the Order for leave to bring an action under the Fundamental Right Enforcement Procedure Rules, the Court below was totally wrong in granting the final orders on Applicant?s exparte motion as shown on page 17 and 18 of the record of appeal. This is a gross breach to the Respondent?s right to fair hearing. The Orders are hereby accordingly set aside.
?
Corollary to this issue, the Court also failed to consider some material facts in the affidavits of parties by not taking into consideration vital exhibit annexed to the affidavit of the Respondents in consideration and final determination in the case. Exhibit ?D? (petition to Commissioner of Police) as shown at page 31 of the record of appeal did not direct 1st to 5th Respondents to infringe on the fundamental rights of the Applicants. Rather, the petition prays at the concluding portion as follows:
?Ordinarily, I would have resorted to all measures at my disposal to resist that forceful take-over of my property, but I decided otherwise for respect for the rule of law. Had I gone further to defend my property right physically blood would have flowed to the embarrassment of your office.
It is my appeal that you intervene to nip the problem at the bud for the interest of justice.”

If the Court had studied consciously the processes before it, it would have arrived at irresistible conclusion that the Respondents were not in breach of the Applicant?s fundamental rights. What existed between the Appellants and Respondents was merely a contestation over ownership of land. The law is that for an action to be competently brought under the Fundamental Rights Enforcement Rules (FREP, Rules) the breach of the fundamental right alleged must be the main and not a mere adjunct to the application. In other words, the violation of a fundamental right guaranteed under the Constitution of the Federal Republic of Nigeria must be the principal claim or relief and not merely an incidental or ancillary claim or relief. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) P. 517, Chukwuogor v. Chukwuogor (2006) 49 W.R.N. p. 183 and Garba v. University of Maiduguri (1986) 2 NWLR (Pt. 18) p. 559.
Like I have said, in order to discover the nature of the relief(s) or claim(s) sought by Applicant, the Court will look at the grounds for seeking the reliefs and the Affidavit in Support. If upon consideration, the enforcement of a fundamental right is found to be the main or principal relief, then the application will be sustained. If they disclose otherwise, the application will be struck out. In the case of Basil Egbuonu v. Borno Radio Television Corporation (1997) 4 NWLR (Pt. 531) P. 13, Kutigi, JSC (as he then was) held that:
“But here…, the principal claim being wrongful termination of appointment which ought to have been commenced by a writ of Summons, which was not, then all the claims, principal and subsidiary which flow directly from it, are incompetent and ought to be struck out. That was what the Court of Appeal did in this case. I believe it was right.”

However, it is trite that every private individual has the right to report a crime or a suspected crime to the police – Isheno Vs Julius Berger (Nig.) Plc (2008) 6 NWLR (Pt. 1084) 582, Arab Contractors (O.A.O.) Nigeria Ltd Vs Umanah (2013) 4 NMLR (Pt. 1344) 323. Section 4 of the Police Act, Cap 359, Laws of the Federation 1990 states the duties of the Police to include, amongst others, the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are charged. It is trite that once criminal allegations are made against a citizen, the Police has a constitutional and a statutory duty to investigate the allegations – Agbi Vs Ogbeh (2005) 8 NWLR (Pt. 926) 40, Christlieb Plc Vs Majekodunmi (2008) 16 NWLR (Pt. 1113) 324 and Onah Vs Okenwa (2010) 7 NWLR (Pt. 1194) 512.” Per ABIRU, J.C.A. (Pp. 26-27,

Paras. D-C)
By the implication of these authorities and this Court having always re-affirmed the position of law, the Police have no business venturing into civil matters. In the instant case, it is clear from the record of appeal that the Police arbitrary used the instrumentality of the state powers to coerce, harass, detained and extorted money from the Applicants. Exhibit ?Q? is evidence of lodgment of N40,000 by the Applicants into the account of 4th Respondent. This claim was not rebutted by 1st to 5th Respondents despite being aware of the pendency of the matter.

The Police upon the receipt and investigation of the complaint from the Respondents did not as required charge the Applicants to Court if found wanting of flouting the law rather, they turned the complaint into money making venture. Just like Caesars? wife the Police should live above board in discharge of their duties to all classes of persons, be it complainant or suspects alike. Obviously, from available evidence placed before the Court, the 6th and 7th Respondents could not have been responsible for the voluntary acts of lawlessness by the agents of the state constituted by the 1st to 5th Respondents. ?The parents cannot eat the sour grapes and the Children teeth would be set on edges.”

Moreover, it was not suggested by Exhibit ?D? (petition) that the 1st to 5th Respondents should employ its state power to unlawfully detain and extort money from the Applicants. Therefore, the decision to trample on the rights of the Respondents until contrary is established remains absolute and personal responsibility of the Police who should bear the consequence to the exclusion of the Respondents. The Court veered off the track when it dwelled so much on issue of ownership of the land and 1918 judgment which is a matter within the realms of civil jurisprudence. The task on the Court in fundamental right enforcement suits is to decipher from the affidavits and documentary evidence whether the Applicant?s rights were breached. Once the Court cannot discern the elements of breach on the Applicant?s right, it has a duty to dismiss the action or make appropriate orders as the justice of the case demands. The lower Court groped in law by basing its decision in fundamental right matter on purely civil business.

I will not fail to point out that the Court failed in its duty to critically analyze and distinguish the submissions of the Counsel in its findings in the judgment of 12/12/2007. What appears the only ratio in the supposed judgment of the Court as seen in the last paragraph of page 142 states thus?
?The 1918 case won by the Applicants remained unchallenged. Non-compliance with Order 2 Rule 1 (4) Fundamental Right Enforcement Procedure Rules 1979 which provides for affidavit of service does vitiate the hearing of this motion on Notice, because all parties are in Court.
Judgment is entered in favour of the Applicants and the sum of N100,000.00 granted as damages for Police extortion and incarceration of the Applicants.”

Evaluation of evidence entails the assessment of that evidence so as to give value or quality to it. Evaluation demands that the evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Review of evidence is not the same things as evaluation of evidence. The former entails a reproduction of evidence of witnesses in summary form. Actual evaluation entails reasoned belief of evidence of one party to the other. This Court restated this position of law in: Aregbesola Vs. Oyinlola (2010) LPELR-3805 (CA); Attah V. State (2009) 15 NWLR (Pt. 1164) 284 (CA).
In this case, the Court below failed in its duty to holistically consider the affidavits of parties? vis avis the documentary evidence in support of their respective positions. Had the Court done this task as required, it would have found as of fact that the Appellants could not have been held responsible for illegal acts of detention, intimidation and extortion of the Respondents by the Police. Failure to make necessary evaluation evidence in this case makes the judgment a perverse one. A verdict of Court of law is perverse when: it runs counter to the evidence and pleadings before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence or it has occasioned a miscarriage of justice. Baridam vs. The State (supra); Nnorodim vs. Ezeani (supra); Lagga vs. Sarhuna (supra); Onyekwelu vs. Elf pet (Nig.) Ltd. (2009) 5 NWLR (Pt.1133) 181; Osuji vs. Ekeocha (2009) 16 NWLR (pt. 1270) 217; Joseph vs. State (2011) 16 NWLR (Pt. 1273) 226.” Per OGBUINYA, J.C.A. (Pp.49-50, Paras. F-A)

In the light of all I have said, it is my conclusion that this appeal is meritorious. The sole issue formulated by the Court is accordingly resolved in favor of the Appellants. This appeal succeeds. The judgment of the lower Court delivered 12/12/2007 in suit No. AG/MISC.28/2007 against the Appellants with damages is hereby set aside.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother ABUBAKAR SADIQ UMAR – JCA allowing this appeal.

The main issue in this appeal touches on the nature and value of the evidence adduced and its management by the learned trial Judge. A close perusal of the decision of the learned trial Court reveals a failure to apply the requisite rules of the weighing of evidence on the imaginary scale. This received a judicial appellation in the case of ANEKWE & ANOR V. NWEKE (2014) 9 NWLR (Pt 1412) 393 where Ogunbiyi, J.S.C States thus;
?…Now in evaluating any piece of evidence placed before it by parties, a Court of law is bound to consider the totality of the evidence led by each of the patties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other.”
Similarly, the Apex Court in CPC V. INEC & ORS (2011) 18 NWLR (Pt 1279) 493 held thus;
?…. it is the trial Court which alone has the primary function of fully considering the totality of evidence placed before it, ascribes probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts…” Per Adekeye, J.S.C.
The duty of the trial Court in the evaluation of evidence was further reiterated in HAMZA V. KURE (2010) 10 NWLR (Pt. 1203) 630 SC per Muhammed, j.S.C. thus;
?… A trial Court has a duty to carefully examine the entirety of the evidence and place same on that imaginary scale of justice to determine the party in whose favour the balance tilts. This was the elaborated decision in MOGAJI V. ODOFIN (1978) 4 SC. 91.?
His Lordship of the trial Court also failed to apply the principle of law which considers documentary evidence as a hanger upon which oral evidence can be deciphered.

The law is sacrosanct that where there are documentary as well as oral evidence before the Court, the documentary evidence should be used as the hanger with which to assess the oral evidence. I am fortified on this by the decision of the Apex Court in KARIBO & ORS V. GREND & ANOR (1992) 3 NWLR (Pt. 230) 426 where Nnaemeka-Agu, J.s.c., held thus;
…. A documentary evidence should and ought to be used as a hanger from which to test the veracity of the Ora/ testimonies. ”
Another instructive decision is found in the dictum of my Lord, J.S.C. the case of ODUTOLA & ORS V.MABOGUNJE & ORS Rhodes-Vivour,  (2013) 7 NWLR (Pt. 1354) 522 to the effect that:
?….When documentary evidence supports Oral evidence, Oral evidence becomes more credible… The reasoning being that documentary evidence serves as a hanger from which to assess Ora/ testimony… ”
Similarly, in the case of ZAKIRAI V. MUHAMMED & ORS (2017) LPELR ? 42349, the Apex Court held thus;
?….It is an elementary principle that documentary evidence is used as a hanger to test veracity of evidence… ” Per Augie, J.S.C. See also BUNGE V. GOV. RIVERS STATE & ORS (2006) 1 ANLR 65 and EGHAREVBA V. OSAGIE (2009) 18 NWLR (Pt. 1173) 299.
In this appeal, there were documents and depositions by way of affidavit evidence. The learned trial Court failed to juxtapose both document and affidavit evidence in order to determine the value to be attached to the case made out by each party. This failure renders the decision of the trial Court perverse and liable to be over-turned by this Court.

I too hereby allow this appeal. The order as to cost made in the lead Judgment is adopted.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.

I equally hold that the appeal has merit and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.

 

Appearances:

E.N. Ezeonwuka, Esq.For Appellant(s)

S.U. Anyia, Esq.For Respondent(s)

 

Appearances

E.N. Ezeonwuka, Esq.For Appellant

 

AND

S.U. Anyia, Esq.For Respondent