MRS. ESTHER OLUWATOYIN AYORINDE v. MR. RICHARD AYORINDE & ORS.
(2010)LCN/3664(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of March, 2010
CA/IL/45/2008
RATIO
COURT: PRINCIPLES GUIDING THE COURT ON RAISING ISSUES SUO MOTU
The law, as I understand it, is that when a court, for any compelling reason finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue, particularly the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiose v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17.
The rationale for this inflexible rule is that it is not competent for any court to make a case for either or both of the parties suo motu and then proceed to give judgment in the case so formulated contrary to the case of the parties before it, Adeniji v Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v Devcom Development Society Ltd (1988) 3 NWLR (pt 83) 407; NHDS Ltd Anor v. Mumuni (1977) 2 SC 57; (1977) NSCC65.
The rule that has crystallised from this position is that when an issue is not placed before a court, such a court has no business whatsoever to deal with it. This is because decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them, Shitta Bey v. FPSC (1981) 1 SC 40; Saude v. Abdullahi (1989) 4 NWLR (pt 116) 387; Kraus T. Org. Ltd v. UNICAL (supra) 16-17.
This rule is so fundamental that its abuse has been characterised as a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566: a breach that amounts to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107.
That is, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not according to law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214.
Such a flagrant breach must, therefore, not be allowed to desecrate the precincts of the hallowed temple of justice. As such, the proceedings resulting from such an exercise, no matter how brilliantly conducted, must be vacated as a travesty of justice, Owoso v Sunmonu (supra). PER CHIMA CENTUS NWEZE, J.C.A.
EVIDENCE: WHAT IS THE PRESUPPOSITION OF THE LAW ON EVALUATION OF EVIDENCE
The law on the evaluation of evidence presupposes that where parties testified before the trial court and called witnesses, the court has a duty to discharge before accepting or rejecting the evidence of either party. That duty is this: it must set up an imaginary judicial scale. Above all, it must put the pieces of evidence adduced by the plaintiff on one side and those of the defendant on the other side. The next task is to weigh them for the purpose of ascribing probative value to them, Mogaji v Odofin (supra); Woluchem v Gudi (2004) 3 WRN 20. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
MRS. ESTHER OLUWATOYIN AYORINDE
(as next friend to her two children:
TOSIN and TOLANI Appellant(s)
AND
1. MR. RICHARD AYORINDE
2. MISS TOYIN AYORINDE
3. MISS NIKE AYORINDE
4. MR MICHAEL OLA KEHINDE
(Administrators and Administratrix of the
Estate of SAKA ADEKUNLE AYORINDE, deceased) Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment) The appellant herein, Mrs Esther Oluwatoyin Ayorinde, was one of the wives of Major Saka Adekunle Ayorinde (late). In a suit, which she took out as next friend of her two children, Tosin and Tolani Ayorinde, she claimed declaratory, prohibitory and restraining orders against the respondents, the Administrators and Administratrices of the Estate of Saka Adekunle Ayorinde, deceased. For their bearing on this appeal, the reliefs are set out hereunder:
1) A declaration that the defendants herein, whether jointly or severally through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in anyway whatsoever with the estate, situated at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.
2) An order of court prohibiting the defendants herein, whether jointly or severally, from selling, disposing of or intermeddling in anyway whatsoever with the estate of Late Major Saka Adekunle Ayorinde situate at Ilorin; which are the following:
1. Storey building at 12 Peter Tokula Street, G.R.A., Ilorin.
2. Premises and Properties of Ajibike Memorial Nursery and Primary School along (sic) airport Road, Ilorin.
3) An order of court restraining the defendants or their agents or privy from further disturbing the plaintiff’s peaceable use and enjoyment of the house at 12, Peter Tokula Road, G.R.A., Ilorin which house was occupied jointly with her husband while he was still alive.
She anchored her claim on a promise of marriage which the late Saka Adekunle Ayorinde made to her. In sum, the case was that the said Saka Ayorinde promised to build a house for her in Ilorin if only she agreed to marry him. Above all, the said Saka Ayorinde actually built the property known as No. 12 Peter Tokula Street, GRA, Ilorin and Ajibike Nursery and primary School on Airport Road, Ilorin, for her in fulfilment of the said premarital promise which he (Saka Ayorinde) made to her in order to facilitate their customary law marriage.
The Kwara State High Court, Ilorin (coram Adebara J) (hereinafter referred to as the lower court), which heard the case, dismissed it. Aggrieved by the outcome of that judgment, she appealed to this court. Two issues were formulated for the determination of the appeal; issues which the respondents adopted in their brief of argument. They were couched thus:
1. Whether the trial court validly raised issues suo motu and justifiably determined the matter, before it, upon those issues without affording the parties the opportunity to address it on them.
2. Considering the evidence before the trial court, whether the trial judge was right in holding that there is (sic) no convincing evidence before him to establish the appellant’s claims.
This appeal will, therefore, be determined based on these two issues, first, issue 1.
Whether the trial court validly raised issues suo motu and justifiably determined the matter, before it, upon those issues without affording the parties the opportunity to address it on them.
When this matter came up for hearing, T. O. S. Gbadeyan, mni, leading T. A. Giwa; I. Akangbe; Dr. Banji Oyeleke and A. Bala, for the appellant, adopted and relied on the appellant’s brief of argument which was deemed properly filed and served on March 3, 2009. He, also, adopted and relied on the appellant’s reply brief which was deemed properly filed and served on February 15, 2010. In the main, the agitations of the appellant on this first issue were two-fold.
The first grouse comes to this: the lower court raised an issue suo motu. That issue was: whether the claimant’s statement on oath filed and admitted in the proceedings at the lower court [she testified as PW3] complied with Order 40 Rules (1) and (2) of the High Court (Civil Procedure) Rules of Kwara State? The court resolved the issue against the appellant and discountenanced the entirety of the evidence in support of her pleadings without affording her counsel the opportunity of addressing the court on it.
It was, equally, alleged that the lower court suo motu raised the issue whether the appellant was a party to the suit and, if not, whether she could rightly claim any relief with respect to the children’s benefit. Like in the first one, the lower court was, also, alleged to have resolved this issue without giving the appellant’s counsel the opportunity of addressing on it.
With respect to the first issue, it was pointed out that on June 27, 2006 when the appellant mounted the witness box as PW3, she adopted and relied on her statement on oath which she had deposed to on March 16, 2006. The lower court, accordingly, “formally deemed [the claimant’s statement on oath] deposed to by Esther Oluwatoyin Ayorinde…as part of her evidence in this case”
[page 181 of the record].
Attention was drawn to page 216 of the record where the lower court acknowledged that: “the claimant in compliance with Order 1 Rule 4 of the new Rules, gave evidence under the new Rules by filling (sic) her written statement on oath….” See, also, pages 220; 223 and 224 of the record.
It was observed that, even in the face of acknowledgement, the lower court suo motu raised the issue whether the appellant’s said statement on oath complied with Order 40 Rules (1) and 2) (supra). Counsel pointed out that the lower court, without giving him any opportunity to make an input on this issue resolved it against the appellant. He further noted that as a result of the resolution of the said issue in the aforesaid manner, the court wrongly rejected the entirety of the evidence of PW3 (appellant) in support of her pleadings. The implication was that the entire gamut of her evidence did not form part of the evidence the court had to consider in the imaginary scale. It was argued that the avoidable consequence of the approach of the lower court was the wrongful rejection of the PW3’s evidence, an act which prompted the subsequent dismissal of her case. This, in effect, had occasioned a miscarriage of justice.
It was, also, contended that the lower court raised another issue suo motu, to wit, whether the appellant was a party to the suit and, if not whether she could rightly claim any relief with respect to the children’s benefit. Just like in the first issue, the court resolved this issue against the appellant without hearing from the appellant or her counsel, citing pages 235- 236 of the record. Counsel argued that if this had been properly raised during the trial, the appellant would have amended her pleadings since the issue was not a fundamental error that could not be remedied.
Learned counsel prayed in aid the decisions in Oro v Folode (1995) 5 NWLR (pt 306) 385, 389-390 and Okoya v Santilli (1994) 4 NWLR (pt 338) 258, 266 to buttress his contention that a judgment of a court must be circumscribed to the issues which the parties raised in their pleadings and not otherwise since any judgment hinged on issues outside those on which issues were joined may conduce to miscarriage of justice.
Counsel further canvassed the view that any court that raises issues suo motu must afford the parties the opportunity of responding to such questions, Abimbola v Abatan (2001) 4 SC (pt 1) 64, 73/74; Cookey v Fomabo (2005) 5 SC (pt 11) 102, 112. He maintained that for a court to raise an issue suo motu and resolve it without hearing from the affected party amounts to a breach such a party’s right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 267, 280. He argued that what the lower court did by raising and resolving the above two issues suo motu was a breach of the appellant’s right to fair hearing, an act which catapulted the proceedings to a travesty of fair trial. He pointed out that such proceedings were bound to be set aside, Idakwo v Ejiga (2002) 2 SC (Pt 11) 168, 172/173; Ndukauba v Kolomo (2005) 1 SC (pt 1) 80, 88-89.
In his reply, learned counsel for the respondents adopted and relied on the respondents’ brief which was deemed properly filed and served on January 28, 2010. He first pointed out that there was no appeal against the lower court’s findings with respect to the insufficient evidence which the appellant led in proof of her case and the inconsistencies and contradictions which, according to him, characterised her case, citing Olukoga v Fatude (1998) 7 NWLR (pt 462) 516, 532 and Ilona v Idakwo (2003) FWLR (pt 171) 175,176.
On the first limb of the first issue [whether the lower court raised any issue with respect to Order 40 (supra)], counsel contended that what the court did was merely to apply the provisions of the said rules in the assessment and evaluation of the oral evidence which the appellant proffered as PW3 vis a vis her pleadings with a view to determining its probative value. According to him, the lower court evaluated the appellant’s evidence and found it weak and unreliable.
He took the view that the lower court formulated only two issues and related them to the issues which the parties formulated. He argued that the lower court had the right to modify, reformulate or reframe issues for determination, citing Sha v Kwan (2000) FWLR (pt 11) 1798.
He dismissed the cases which the counsel for the appellant cited as inapplicable, contending that portions of the said decisions were cited without relating them to the issues in this case. He cited Group Danone v Voltic Nig Ltd (2008) 7 NWLR (pt 1087) 637, 678 as authority for his submission on the point.
In his reply, counsel for the appellant dismissed the above submissions of the respondents as irrelevant as they did not respond to issue No. 1: the competency and effect of trial court raising an issue for determination suo motu without hearing from the affected party. In his view, the submissions did not counter the earlier submission urged on behalf of the appellant. Above all, the authorities which the respondent cited are, also, inapposite and should be discountenanced.
He turned to the respondents’ submission that the lower court did not raise any issue bordering on the interpretation or full import of Order 40 Rules (1) and (2) of Kwara State High Court (Civil Procedure) Rules, 2005 but merely applied the provisions of the Rules in the court’s assessment and evaluation of the oral evidence proffered by the appellant.
He maintained that none of the parties, by their processes at the lower court, raised an issue challenging the appellant’s (PW3) evidence either in part or in its totality and demanding for it to be expunged completely. He was emphatic that, at no time, did the lower court invite counsel on both sides to address it on the status of the entire evidence of the respondents vis a vis Order 40 Rule 1 (supra).
CONSIDERATION OF THE ARGUMENTS
As shown above, the first limb of the first issue centred on the propriety of the approach of the lower court which suo motu posed the question whether the appellant’s statement on oath complied with Order 40-Rules (1) and 2) (supra).
Counsel pointed out that the lower court, without giving him any opportunity to make an input on this issue, resolved it against the appellant. He further noted that as a result of the resolution of the said issue in the aforesaid manner, the court wrongly rejected the entirety of the evidence of PW3 (appellant) in support of her pleadings.
On his part, counsel for the respondents contended that what the court did was merely to apply the provisions of the said rules in the assessment and evaluation of the oral evidence which the appellant proffered as PW3 vis a vis her pleadings with a view to determining its probative value.
The question now is: what was the lower court’s approach which prompted this forensic contest up to this altitude in the judicial hierarchy? We shall repair to the records for a clue to what transpired thereat.
The lower court, in its judgment, made the following findings:
PW3 (the claimant) did not give detailed evidence in support of her pleadings. All she did was to state in paragraph 12 of her written statement on oath that the amended Statement of Claim from paragraphs 1-38 both inclusive are to the best of her knowledge true and correct.
[page 234 of the record]
It proceeded to paraphrase the provisions of the said Order 40 Rules (1) and (2) thus:
It is pertinent to state that Order 40 Rules (1) and (2) which had came (sic) into force at the time PW2 (sic) gave evidence provides that any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court. It stated further that oral examination of a witness during his evidence in chief shall be limited to confirming his written deposition and tendering in evidence all documents or other exhibits referred to in the deposition.
[page 234]
The court then made a far-reaching pronouncement which is, actually, the source of the irritation of the appellant. Listen to this:
…it is my view that it is the duty of a claimant to depose in his written statement on oath all material facts averred in the Statement of Claim as the written deposition now constitutes evidence under the new rules. Therefore, when PW3 merely stated in paragraph 12 of the written deposition that paragraph 1-38 of her Statement of Claim are true and correct, she has not deposed to anything at all concerning those paragraphs as it is trite that pleadings do not amount to evidence…rather they ought to be supported by evidence otherwise it (sic) will go to no issue…
[page 234]
Now, to set the grouse of the appellant in its proper con, it is perhaps, necessary to look at what transpired during the actual hearing. On June 27, 2006 the appellant entered the witness box as PW3. She adopted and relied on her Statement on oath which she had deposed to on March 16, 2006. The lower court, according,, “formally deemed [the claimant’s statement on oath, deposed to by Esther Oluwatoyin Ayorinde … as part of her evidence in this case.[page 181 of the record].
That is not all. On page 216 of the record, the lower court acknowledged that: “the claimant in compliance with Order 1 Rule 4 of the new Rules gave evidence under the new Rules by filling (sic, her written statement on oath…. It is against this background that the appellant has impugned the court’s subsequent adverse attitude to the said appellant’s processes. As shown above the court construed the effect of Order 40 (supra, on the appellant’s deposition suo motu; resolved it against her and, in consequence, held that statement on oath went to no issue.
Now the requirement of written depositions as an adjunct of the fronting concept is one of the innovations introduced in the new Rules of our courts starting with the Lagos High Court in 2004. The Kwara State High Court followed suit in 2005. Unarguably, at its nascency, that new concept, its full import and its application were bound to ignite disparate or divergent responses from the lower courts and the practitioners alike. [Indeed, the result of such divergent responses to another aspect of the status of written depositions in relation to affidavits is the recent decision in INEC v Action Congress (2009) 2 NWLR (pt 1126) 524, 615].
In the present case, the juridical status or pedestal of a written deposition agitated the mind of the trial court. Unfortunately, that court unilaterally, indeed, arbitrarily, confronted the question of the status of that deposition under Order 40 (supra) without seeking to hear the views of the parties, particularly, the appellant who was to be, and, was actually, affected by an adverse ruling on its ineffectuality.
There is considerable merit in the complaint of the appellant here. The lower court glossed over a very crucial fact, namely, that it was dealing with issues which were at the threshold of the entire trial process: pleadings and written depositions – processes which not only shape the future course of the actual trial, but, actually, make or mar the chances of success at the trial of an action.
Being fundamental processes in the trial procedure, it is only prudent, and actually makes for justice and fair play for their adequacy; sufficiency; validity and relevance to be tested at the beginning of an action or as soon as possible thereafter, see, per Ejiwumi JSC in Ughutevbe v Shonowo (2004) 32 WRN 27, 52.
Surely, in the determination of the adequacy; sufficiency; validity and relevance of such processes which are so crucial in the determination of the fate of the entire suit, the parties [particularly, the side who would be adversely affected by a contrary decision] ought to be given an opportunity of being heard before the court takes its decision, Ughutevbe v. Shonowo (supra) at 52.
Something almost akin to the approach of the lower court happened in Ughutevbe v Shonowo (supra). In that case, at the conclusion of the trial, the learned trial Judge found against the first respondent in respect of their claims.
Before then, however, he had struck out certain paragraphs of the amended reply. The court took the view that they infringed on provisions of the applicable rules of court. On appeal, this court vacated the order of the lower court insisting that it was not entitled to raise the issue of the propriety or otherwise of the said paragraphs suo motu without hearing the parties before striking them out from the amended reply.
On further appeal to the Supreme Court, the second limb of the first issue for determination was:
Whether…the learned trial Judge was not entitled to raise suo motu and without hearing the parties on the propriety or otherwise of those paragraphs before striking out those paragraphs from the amended reply
[Ughutevbe v Shonowo (supra) at page 42]
The apex court upheld the judgment of this court. Ejiwumni JSC (as he then was) took the view that “the court below [that is, this court – the Court of Appeal-] was right to have held that before the alleged offending paragraphs of the amended reply were struck out, the parties should have been heard by the trial court”, see (2004) 32 WRN at 52.
I must pause here to emphasise the point that the lower court in present case was entitled to raise the issue of the pedestal of the appellant’s written deposition in the light of Order 40 (supra) suo motu, Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. Where it erred was that it, unilaterally, undertook the resolution of the said issue it raised without hearing from the parties. That was, clearly, a wrong approach.
The law, as I understand it, is that when a court, for any compelling reason finds it necessary, and particularly in the interest of justice, to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue, particularly the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410; Atanda v. Lakanmi (1974) 3 SC 109; Odiose v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17.
The rationale for this inflexible rule is that it is not competent for any court to make a case for either or both of the parties suo motu and then proceed to give judgment in the case so formulated contrary to the case of the parties before it, Adeniji v Adeniji (1972) 4 SC 10; Commissioner for Works, Benue State and Anor v Devcom Development Society Ltd (1988) 3 NWLR (pt 83) 407; NHDS Ltd Anor v. Mumuni (1977) 2 SC 57; (1977) NSCC65.
The rule that has crystallised from this position is that when an issue is not placed before a court, such a court has no business whatsoever to deal with it. This is because decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them, Shitta Bey v. FPSC (1981) 1 SC 40; Saude v. Abdullahi (1989) 4 NWLR (pt 116) 387; Kraus T. Org. Ltd v. UNICAL (supra) 16-17.
This rule is so fundamental that its abuse has been characterised as a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in the Constitution, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566: a breach that amounts to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107.
That is, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not according to law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214.
Such a flagrant breach must, therefore, not be allowed to desecrate the precincts of the hallowed temple of justice. As such, the proceedings resulting from such an exercise, no matter how brilliantly conducted, must be vacated as a travesty of justice, Owoso v Sunmonu (supra).
The above authorities apply with equal force to the second limb of the first issue. At page 235, the lower court suo motu raised the issue whether the appellant was a party to the suit. It held, without hearing from the appellant, thus: “…Mrs Esther Oluwatoyin Ayorinde for all intents and purposes is not a party to this suit but the next friend of her two children on whose behalf she is to prosecute the case for their benefits”. The appellant has, equally, complained about the propriety of this approach. From what I said above, I have no hesitation in deprecating this approach. The lower court erred in so doing. In all, I find for the appellant on this issue. Even on this score alone, I am bound “to set aside, the judgment of the lower court. However, since this is the penultimate court in the country, I have to remind myself that I am under obligation to consider the second issue too. We now turn it.
ISSUE 2
The principal plank of the appellant’s disagreement with the lower court with regard to the second issue rests on the contention that the said court improperly evaluated the evidence used in resolving the issues for determination: issues which the court formulated on its own as follows:
(i) Whether Late Major Saka Ayorinde made pre-marital promises to the claimant to built a house and establish a School for her which said promises were fulfilled before they got married.
(ii) Whether the claimant is on the evidence before the Court entitled to the reliefs sought by her.”
Counsel referred to pages 232 -240 of the record for the court’s resolution of the above issue 1. There, the court held without any hesitation that there was no convincing evidence before it that the property known as No 12 Peter Tokula Street, GRA, Ilorin, was built for the claimant alone or her children”. The court, equally, held that there was no proof that Ajibike Memorial Nursery and Primary School “was solely established for her arising from the pre-marital promises by Major Ayorinde made to the parents of the claimant”.
Learned counsel observed that the above findings did not answer the issue in controversy. He advanced the following reasons in furtherance of the contention that the court improperly evaluated the evidence. According to him, the court made no reference to the averments in the pleadings and did not evaluate the cogency of the evidence before entering them into the imaginary scale of justice.
He drew attention to pages 66 -70 of the record for the averments on pre-marital promises [paragraphs 31- 36 of the Amended Statement of Claim] and page 167 of the record for the PW1’s evidence in substantiation of the above averments on the said pre-marital promises. He, further, drew attention to pages 169-170 of the records for the PW2’s corroboration of the evidence of PW1 in this respect. He cited pages 168-171 of the records, respectively, to show that the testimonies of these two witnesses on the question of pre-marital promises were not subjected to cross examination.
With regard to the approach of the lower court to the evidence of PW3 (the appellant), it was explained that she testified in compliance with the new Rules by adopting and relying on her statement on oath: statement on oath which the court “formally deemed as part of her evidence in this case”. Counsel argued that by that deeming order, the averments in the Statement of Claim had metamorphosed to evidence on oath in the proceedings: evidence which the court was bound to evaluate in the imaginary scale of justice. He pointed out that the lower court totally rejected the evidence.
Still on the improper evaluation of evidence, it was explained that all the witnesses for the defendants could not give direct evidence of the pre-marital promises as they were not present at the time the said pre-marital promises were made, citing the evidence of DW3 [page 192 of the records where the witness disclaimed any knowledge whether Major Ayorinde made marriage vows to the appellant] and page 189 for the responses elicited from the DW1 in cross examination.
Counsel further faulted the lower court’s approach to the evaluation of evidence on these grounds: the appellant’s case depended on the testimonies of PW1; PW2 and PW3. Although these three witnesses gave credible evidence in proof of the pre-marital promises to the appellant and her children, the lower court discountenanced the written deposition of the appellant. So, only the testimonies of PW1 and PW2 were employed in the evaluation of the evidence in her favour. In effect, it wrongfully rejected PW3’s evidence.
What is more, even the testimonies of PW1 and PW2 which were used in the evaluation exercise were improperly evaluated. The testimonies of the defendants on the issue of pre-marital promises were not direct evidence and hence the court was bound to discountenance them [thereby leaving only the testimonies of PW1 and PW2 on the pre-marital promises on the imaginary scale].
The scale, then, preponderated in favour of the appellant on this issue. Yet, the court found against the claimant (appellant).
He submitted that the trial court was under obligation to: (a) put the evidence of both parties on an imaginary scale; (b) weigh one against the other; (c ) decide upon the preponderance of credible evidence which weighs more; (d) accept that which weighs more in preference to the other and (e) apply the appropriate law to it. Simply put, the court should put the totality of evidence on that imaginary scale, citing Sha v Kwan (2000) 5 SC 178, 195 – 196; Leko v. (1995) 2 NWLR (pt.378)432,435.
Counsel noted that an appeal court can intervene and re-evaluate such evidence where the lower court failed to consider and properly evaluate evidence, Okino v Obanebira (1994) 5 NWLR (pt 344) 348, 349. He called attention to the duty of an appeal court in the circumstance, citing Queen v Uche (1994) 6 NWLR (pt 350) 329, 337.
Expectedly, the respondents approbated the findings and conclusions of the lower court. In the respondents’ brief of argument, deemed properly filed on January 26, 2010, learned counsel drew attention to the decision in Mogaji v Odofin (1978) 4 SCT 91, 93-95 and Lion buildings Ltd v Shadipe (1976) 12 SC 135, 152-153 on the purport of a complaint that a judgment is against the weight of evidence.
From the principles enunciated in the above cases, counsel highlighted the formulae which case law had posited for determining or settling appeals of this nature: (a) the evidence before the court; (b) whether it accepted or rejected any evidence upon the correct perception; (c) whether it correctly approached the assessment of the value on it; (d) whether it used the imaginary scale of justice to weigh the evidence on either side; (e) whether it appreciated, upon the preponderance of evidence, on which side the scale weighed, having regard to the burden of proof, citing Daramola and Ors v Attorney General, Ondo State and Ors (2000) FWLR (pt. 6) 997, 1015; 1016; Osolu v Osolu (2003) FWLR (pt.172) 1777, 1791.
He explained that the appellants case based on the pleadings was for an order of court to preserve the exclusive use of the two items of property in dispute, namely, No 12, Peter Tokula Road, GRA Ilorin and Ajibike Memorial Nursery and Primary School on Airport Road, Ilorin. Her ground was that they were built in fulfilment of the promises which her late husband made to her and her family to secure her hands in marriage.
Counsel cited paragraphs 9,10, 11 and 12 of the Amended Statement of Claim to show the crux of the appellant’s claim and paragraphs 5, 7, 8, 9,10,11,12,13 and 14 of the joint Statement of Defence where issues were joined on the appellant’s claim.
Counsel submitted that against this background parties were deemed to have raised issues of facts: facts which impelled the findings of the court, citing exhibits 7, 8 and 9, Overseas Construction Coy Ltd v Creek Ent Nig Ltd (1985) 12 SC 158, 190 – 191 and Buhari v Obasanjo (2005) 2 NWLR (PT. 910) 241, 483. In his view, the learned trial Judge demonstrated a clear appreciation of this position of the law going by the above two issues he formulated suo motu.
He highlighted the following findings of the court:
(i) Insufficiency of the appellant’s depositions on material facts which she pleaded since written depositions now constitute evidence under the new Rules of Court;
(ii) Total lack of evidence in support of her pleadings;
(i) Material contradictions in the evidence of the witnesses whom, the appellant called.
(ii) The fact that the appellant, having sued as next friend to her two children, could not be regarded as a party to the suit and the appellant’s failure to prove that the items of property in dispute were established for Tosin and Tolani (her children) arising from the said pre-marital promises
(iii) The documents in evidence did not support the claims of the appellant but rather supported the case put forward by the respondents.
He maintained that it was against this background that the learned trial Judge opted for the documentary evidence and not the oral evidence of the appellant, Fashanu v. Adekoya (1974) 6 SC 83; Jinadu v Esurombi-Aro (2005) ALL FWLR (pt. 251) 349, 382.
He called attention to exhibits 7 and 8 and observed that the items of property of the appellant’s deceased husband (including those in dispute) are deemed vested in the respondents who have all the powers of Administrators and Administrices, Ayorinde v Ayorinde and Ors (2004) 13 NWLR (pt. 889) 83, 104.
He took the view that since the appellant did not challenge the above findings, this issue should be resolved against her because a complaint against the weight of evidence is a complaint against the totality of the appraisal and evaluation of evidence adduced before the court. It is not against any specific issue, Osolu v. Osolu (2003) FWLR (pt.172) 1777, 1791.
He canvassed the further view that even where the findings of fact of a lower Court are challenged, an appellate court would not, ordinarily, disturb such findings unless they are shown to have breached a specific rule of law or that they amount to a miscarriage of justice or that they could be said to be perverse.
He submitted that the findings of the trial court are amply supported by the evidence on record. He urged this court not to interfere with them since the lower court reviewed, assessed and ascribed the requisite weight to the documents, notably, exhibits 7, 8, 9 and 10, citing Mogaji v Odofin (supra) and Daramola v A.G. Ondo State (supra).
In reply, counsel for the appellant, relying on the reply brief, submitted that the above contentions of the respondents dramatise and throw into bold relief the implications of the issues which the lower court raised suo motu and foisted on the appellant contrary to established principles, pointing out, in particular, the issues highlighted in paragraphs (ii) and (v) above.
Counsel explained that the case of Ayorinde v. Ayorinde & ors (2004) 13 NWLR (pt. 889) 83, 104 was an interlocutory decision that that did not decide anything in the substantive claim before this Honourable Court. According to him, what came before this court in that interlocutory matter was the expediency of the defendants/respondents herein holding themselves out or allowing themselves to be held out as the administrators and administratrices of the estate having been appointed after the filing of this suit at the lower court. Nothing more was really in dispute in that interlocutory decision. The case is, therefore, inapposite now Court in resolving the issues in dispute herein.
CONSIDERATION OF THE ARGUMENTS
The fate of this second issue is inextricably tied to the fate of the first issue.
Before I come to this, however, some prefatory remarks are imperative. It is undoubtedly settled that if there has been a proper appraisal of evidence by a trial court, a court of appeal should not embark on a fresh appraisal of the same evidence just to arrive at a “different conclusion from that reached by the trial court. Put differently, if a trial court unquestionably evaluated the evidence then it is not the business of the Court of Appeal to substitute its own views for the views of the trial court, Balogun v Agboola (1974) 10 SC 111; Woluchem v Gudi (supra).
As the Supreme Court explained in Woluchem v Gudi (supra), these principles are based on sound common sense. The trial Judge has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candour and -partisanship; their integrity; manner etc. He can, therefore, decide on their credibility. These advantages are normally not enjoyed by an appeal court. All it has is the printed record. It does not have the other evidence – evidence of the demeanour of the witnesses or other incidental elements that go to make up the atmosphere at the trial, see per Nnamani JSC (as he then was) at pages 52- 53. As indicated above, the fate of this second issue is inextricably tied to the fate of the first issue. The law on the evaluation of evidence presupposes that where parties testified before the trial court and called witnesses, the court has a duty to discharge before accepting or rejecting the evidence of either party. That duty is this: it must set up an imaginary judicial scale. Above all, it must put the pieces of evidence adduced by the plaintiff on one side and those of the defendant on the other side. The next task is to weigh them for the purpose of ascribing probative value to them, Mogaji v Odofin (supra); Woluchem v Gudi (2004) 3 WRN 20.
Unfortunately, that was not what happened at the lower court. In that court, the edifice of the appellant’s case was structured on three pillars or limbs, namely, the testimonies of PW1, PW2 and PW3. Although these three witnesses gave evidence in the case, the lower court amputated the third limb on which the edifice rested: the court utilised only the testimonies of PW1 and PW2 in the evaluation of evidence, while side-stepping or side-tracking the written depositions of the PW3 on the ground of non-compliance with Order 40 (supra). The effect was predictable: having disallowed the said written depositions, which were the invaluable building blocks in the architecture of her case, the edifice (the entire case) was bound to collapse.
As already held above, the approach of the lower court amounted to a travesty of justice, indeed, a miscarriage of justice! The question then is: if the entire trial has been declared a nullity, how do we consider the issue of the court’s evaluation of evidence? If an appeal court can interfere with findings of a trial court which have been shown to be perverse, Akinyele v Eyiola (1981) 5 SC 291; Woluchem v Gudi (supra); Ebba v Ogodo (2003) 41 WRN 70, surely, the said appeal court should have the power to vacate a trial that amounted to a miscarriage of justice. What is important here is not whether the appellant would have succeeded. That is an entirely different question that must abide a trial known to law. So also is the submission on the primacy of documentary evidence [for example exhibits 7 and 8] over the oral evidence of the appellant. Such contentions must, equally, abide a real trial according to law.
What is important for now is that what happened at the lower court was not justice according to law, Ojo v Anibire (supra). Surely, if it does not qualify as justice according to law, then the benchmarks for the evaluation of evidence in a trial according to law can not be applied to such a trial. That is the fate of this case. By breaching the appellant’s right to fair hearing as enshrined in the Constitution, the lower court embarked on a venture that is unknown to law, namely, a travesty of justice.
Indeed, counsel for the respondents was right when he canvassed the view that even where the findings of fact of a lower court are challenged, an appellate court would not, ordinarily, disturb. Such finding, unless they are shown to have breached a specific rule of law or that they amount to a miscarriage of justice, citing Mogoji v Odofin (supra) and Daramola v. AG, Ondo State (supra).
It has been shown that there was a miscarriage of justice at the lower court.
Hence, this court will interfere, not only with the findings of facts, but with the entire proceedings.
In all, I hereby allow this appeal. I hereby enter an order setting aside the judgment of the lower court delivered on March 20, 2007. I, further, order a retrial of this matter by another Judge of the Ilorin Division of the High Court of Kwara State. Appeal allowed with costs assessed at N30, 000 in favour of the appellant.
SOTONYE DENTON WEST, J.C.A: I agree with the conclusions of the Judgment just delivered by my Brother NWEZE J.C.A, I however came to the same conclusions via this reasoning, as herein elucidated.
This appeal stems from the judgment of the High Court of Justice of Kwara State in the Ilorin Judicial Division delivered on the 29/3/07 in suit No. KWS/129/98: Between MRS. ESTHER OLUWATOYIN AYORINDE (AS NEXT FRIEND TO HER CHILDREN TOSIN AND TOLANI v. MR. RICHARD AYORINDE & 3 ORS (ADMINISTRATOR AND ADMINISTRATRIX OF THE ESTATE OF SAKA A. AYORINDE. The appellant as plaintiff in the latter court appealed against the decision of the trial court, while the respondents, being defendants at the trial court are seeking that the judgment of the lower court be upheld by this court.
The appellant sought for the following reliefs vide paragraph 28 of the amended statement of claim filed on 5/5/2004, jointly and severally against the respondent thus.
“1. A DECLARATION that the defendants herein, either jointly or severally or through any of their agents, privies or assigns, are not entitled to sell, dispose of or intermeddle in any way whatsoever with the estate, situated at Ilorin, of Late Major Saka Adekunle Ayorinde who died intestate in Ilorin.
2. AN ORDER of court prohibiting the defendants herein whether jointly or several (sic) from selling, disposing of or intermeddling any way whatsoever with the estate of Late Major Saka Adekunle Ayorinde situate at Ilorin which are the following:
i. storey building at 12 Peter Tokula Street, G.R.A, Ilorin.
ii. Premises and properties of Ajibike Memorial Nursery and Primary School, along Airport Road, Ilorin.
3. AN ORDER of court restraining the defendants or their agents or privy from further disturbing the plaintiff’s peaceable use and enjoyment of the House at 12, Tokula Street, G.R.A. Ilorin which house was occupied jointly with her husband while he was still alive.”
The parties filed and exchanged pleadings after which the case was tried by Honourable Justice A.A. ADEBARA on the 20/03/07, wherein the respondents prayed that all the prayers and injunctions be refused.
At the conclusion of hearings, the learned trial judge delivered judgment in which the claims and reliefs sought by the appellant failed. This prompted the appellant to file an appeal to this court.
The two Parties filed and exchanged their briefs of argument. The appellant’s brief of argument was deemed properly filed, served and granted on 3/3/09, the respondents brief of argument was dated 17/07/09 and filed 18/6/09 and the appellant’s reply brief of argument dated 12/2/10 but deemed properly filed and served on 15/2/2010.
On 15/2/2010 the appellant’s counsel adopted the appellant’s brief of argument and the appellant’s reply brief and urged this court to allow this appeal and grant all the appellant’s reliefs as claimed in their statement of claim. The respondents on their part adopted their respondents brief and urged this court to dismiss this appeal and affirm the decision of the trial Court.
The appellant’s counsel J.O.S. Gbadeyan Mni, identified and formulated two issues for determination and the respondents counsel in his wisdom adopted the two issues and argued same.
The two issues for argument are:
ISSUE 1
Whether the trial court validly raised issues suo motu and justifiably determined the matter before it, upon those issues without affording the parties the opportunity to address it on them.
ISSUE 2
Considering the evidence before the trial court, whether the trial judge was right in holding that there is no convincing evidence before him to establish the appellant’s claim.
ISSUE 1
The appellants counsel argued that some documents were tendered by consent of counsel and throughout the hearing at the lower court, none of the parties raised any issue bordering on non-compliance of the PW3 statement on oath with the dictates of the rules of court. He argued further that the trial judge, on his own formulated issue No. 1, raised an issue suo motu as to the interpretation of order 40 rules (1) and (2) of the High Court (civil procedures) rules of Kwara-State and it was in view of this, that the whole evidence of PW3 was discountenanced.
Counsel further contended that, the trial judge suo motu raised another issue as to whether Mrs. Esther Oluwatoyin Ayorinde is a party to the action or not; and whether she could rightly claim any relief before the court, having not been a party to the action.
T.O.S. Gbadeyan submitted that the position of the law is that judgment of the court must be confined to issues raised by the parties in their pleadings, for it is wrong for a court to formulate an issue which was never addressed by the parties because this may lead to miscarriage of justice. See ORO v. FALADE (1995) 5 NWLR (Pt.396) 385 AT 389-390 and OKOYE v. SANTILI (1994) 4 NWLR (Pt.338) 256 AT 266.
He further submitted that it is trite law that on account should the court raise an issue suo motu and decide the matter before it on a point without allowing the parties the opportunity of addressing the court on that point. He referred to the decision of ABIMBOLA v. ABATEM (2001) 4 SC (pt.1) 64 at 72 – 74 and COOKEY v. FOMABO (2005) 5 SC (pt.11) 102 at 112 to buttress his position.
He further contended that whenever a party in a suit is denied the opportunity of addressing the court on an issue raised suo motu by the judge, such denial will amount to a breach of the party’s right to fair hearing. He cited the case of OJE v. BABALOLA (1991) 4 NWLR (Pt.185 – 267) at 280.
He concluded the submission by stating that the issues raised for determination by the appellant were ignored. That rather, the court brought up the issue of relevancy of PW3’s evidence under Order 40 rules 1 & 2 of Kwara State High Court Rules and whether the appellant failed to prove before the court, that the statement of claim and the evidence in support, makes reference to the children’s benefit, as raised suo motu by the trial judge, who went ahead to resolve the issue without giving the appellant counsel the opportunity of addressing the court on those issues.
Learned counsel further submitted that denying the appellant counsel the opportunity of addressing the court on those points, amounts to a breach of fair hearing, most especially when the whole evidence of PW3 in support of appellant’s pleading was wrongfully rejected and not fed into the imaginary scale, thereby leading to the dismissal of the appellants suit.
He further contended that if the issue had been appropriately raised during trial, the situation could have easily been remedied by making a consequential amendment of the appellant’s pleading since it is not a fundamental error. He further argued that by raising 2 issues suo motu in his judgment and resolving both of them against the appellant without giving the appellant’s counsel the opportunity of addressing the issue, a fundamental issue of breach of principle of equity and fairness arose and that such an issue can not be left unaddressed by this court. He cited the case of IDAKWO v. EJIGA (2002) 2 SCE (pt.11) 168 at 172 -173 where the Supreme Court held that where a party’s right is breached, the normal thing a court should do in such a situation is to set aside the decision of the court. he similarly cited the case of NDUKAUBA v. KOLOMO (2005) 1 SC (pt.1) 80 at 88 where the court held that such a proceeding, that is tainted with a breach of natural justice, must be set aside.
The learned counsel finally prayed this Honourable court to set aside the judgment of the lower court.
T.A. ABDULWAHAB Esq., counsel to the respondents, argued on issue 1 and stated that, whether a trial judge in his determination of whether or not the appellant has adduced sufficiently cogent and credible evidence in support of their pleadings vide order 40 rules 1 & 2 of the High Court Civil Procedures of Kwara State relating to proof of facts.
He contended that the findings of the trial judge on the insufficiency and tenuous nature of the evidence proffered at the trial court by the appellant as well as the inconsistencies and obvious contradictions has not been challenged, and concluded that findings against which there is no appeal stands admitted and undisputed, he referred this court to OLUKOGA v. FATUNDE (1998) 7 NWLR (PT462) 516 AT 532 and ILONA VS. IDAKWO (2003) FWLR (pt.171) 175 at 1736 to buttress his position.
He urged this honourable court to resolve this issue against the appellant and in favour of the respondents on the ground that, contrary to the appellant’s misleading posture, the learned trial judge never raised any issue bothering on the interpretation or import of Order 40 rules 1 and 2 of the Kwara State High Court Civil Procedures Rules. That what the provisions of the rules in the trial court’s assessment and evaluation of the oral evidence proffered by the appellant vis-a-vis the appellant’s pleading was done with a view to determining the probative value of the evidence which the learned trial judge found to be incurably weak and highly unreliable.
The respondent highlighted the 2 issues formulated by the learned trial judge and stated that what the trial judge did was to restrict himself to the case fought out on the pleadings by the party’s as they were related to the issues formulated by the two parties before the court.
He submitted that a judge can modify, reformulate or reframe issues for determination raised by the parties but that the modified, reformulated or reformed issues must answer the substance of the matter laid before it. He cited the case of SHA v. KWAN (2000) FWLR (Pt. 11) 1798 to buttress his position.
He further argued that the appellant’s counsel cited most of the cases in support of his argument out of con and that the approach of the learned court is not in line with the admonition of the Apex court as stated In the case of GROUP DANONE v. VOLTIC NIG. LTD. (2008) 7 NWLR (Pt.1087) 637 at 678 PARAGRAPHS F.G. and he finally urged this court to resolve this issue against the appellant.
The appellant in his reply brief earlier adopted before this honourable court argued that ground 5 of the notice of appeal is ably covered by issue 2 in the appellant brief and urged this court to so hold.
Appellant’s counsel in his reply brief contended that the respondents brief on issue 1, which is a response to their own issue 1, never treated the issue formulated, because it does not deal with the competency and effect of the trial court raising the issue for determination suo motu and addressing it in the judgment of the court.
He urged this honourable court to discountenance the judicial authorities cited by the respondent counsel, because, they were inapposite to the issue at hand and that all the submissions are irrelevant to issue 1 and did not counter any earlier submission in the appellant brief. He then posited that who among the two parties, by their processes at the lower court raised an issue challenging the appellant’s evidence either in part or in totality and demanded for it to be expunged? He answered himself in the negative by stating that all the respondents did in their brief on issue 1 was to chase shadows.
Issue one raised by the appellant and adopted by the respondent is very germane and fundamental, because it goes to the root of this appeal. Succinctly put, can a judge raise an issue suo motu, and determine same without calling on the parties to address him?
AGU, JSC (as he then was) in OJE v. BABALOLA (1991) 4 NWLR (Pt.185) 267 at 280, paragraph E-G held that:
“there are occasions where a court may feel that a point which has not been raised by one of the parties is necessary for consideration in order to reach a correct decision in a case. In the few cases where this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel as the case maybe, so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing,… in this country this is a constitutional right and this court has always insisted that on no account should a court raise a point suo motu and no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties. See LAWRENCE OKAFOR v. OBIEKWE (1989) 1 NWLR (Pt.99) 556 AT 581. So the learned trial judge was in error to have
raised the point, resolved it and proceeds to strike out the reply without hearing any of the parties.”
The poser now is, did the learned trial judge or any of the two parties raise the issue of Order 40 Rules (1) and (2) of the Kwara State High Court (Civil Procedures) rule 2005 during the trial? I have painstakingly gone through all the proceedings of the trial court, especially the address of counsels, and to my greatest dismay, none of them raised the issue.
The court can suo motu raise issues that are germane and fundamental to a case and determine same, however to avoid the issue of a party raising the issue of breach of a party’s right to fair hearing, courts are enjoined to direct counsel to address it on issues raised suo motu by the court. See UBA LTD. v. ACHORU (1990) 6 NWLR (PT 156) 254, OKAFOR v. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE (1998) 31 LRCN 3679 AT 2713, KATTO v. CENTRAL BANK OF NIGERIA (1999) 5 SC (PT 11) 21 (1999) 69 LRLN 119.
In IROM v. OKIMBA (1998) 2 SCNJ PG 5 before Belgore J.S.C (as he then was) held that:
“In the present case, the parties had long left the face of the court when the court discovered a point so important that it could be the kernel of the whole appeal, and it was. The parties never adverted to it before the court or in their briefs of argument. They ought to have been recalled to address on the new point with the court formulating the issues on the new point. The court never did this. Parties were not heard and the pronouncement of the court of appeal on this point is totally incompetent. It is more than a case of not being given fair hearing.
It is that of not hearing the parties.”
Similarly, EDOZIE, JSC HELD IN COOKEY v. FOMABO (2005) 5 SC (Pt.11) 102 at 112 thus:
“It is also the law that a court should not take up a point suo motu and decide the matter before it on that point without hearing the parties”.
With the greatest respect to the learned trial Judge of the parties raised the issue of Order 40 rules (1) and (2) of the Kwara State (Civil Procedure) High Court rules 2005.
The question is, did any of the parties raise it in their brief? The answer is in the negative. It is unfortunate that the learned counsel to the respondents misconceived issue number one, although the issues formulated by the learned trial judge are:
1. Whether Late Major Saka Ayorinde made premarital promises to the claimant to build a house and establish a school for her which said promises were fulfilled before they got married.
2. Whether the claimant is on the evidence before the court entitled to the relief’s sought by her.
But the full sum of the issue was based on Order 40 rules (1) and (2) of the Kwara State (Civil Procedure) High Court rules, 2005, which none of the parties addressed.
It is a fundamental principle of our law that a case must always be decided on the issues brought before the court by the parties and not on what was raised by the court “suo motu”. If in the interest of justice, the court raised an issue “suo motu” counsel to the parties must be given opportunity to address on it, which was not done in this case. See SADIKU v. A.G. LAGOS STATE (1994) 7 NWLR (PT 355) 235; UDOGU v. EGWUAYU (1994)3 NWLR (PT 330) 120; NNAMANI v. NNAMANI (1996) 3 NWLR (Pt.438) 591.
The trial court judge has violated the cardinal principle of fair hearing by not giving the parties an opportunity to address it on the issue of Order 40 rules 1 and 2, and consequently, the total disregard of the written deposition of PW3 and the lack of probative value ascribed to the written statement on oath during judgment has occasioned a hardship on the Appellant.
Therefore, issue number 1 is resolved in favour of the appellant and against the respondents to the extent that the trial Judge raised issues Suo Motu without affording any of the parties an opportunity to address thereon.
ISSUE 2
Considering the evidence before the trial court, whether the trial judge was right in holding that there is no convincing evidence before him to establish the appellant’s claim.
The appellant’s counsel argued that the learned trial judge suo motu formulated issues for determination and resolved the issues on pages 232 to 240 and that after looking at the whole resolution, he observed that the trial judge did not answer the issue in controversy.
He made an example of the failure of the trial court to make reference to the appellant’s evidence and the failure of the trial court to evaluate the cogency of the evidence given, before feeding them into the imaginary scale of justice.
He further contended that if the trial judge had considered the averment on the premarital promises which was later on supported by evidence, and which was not controverted by the respondents, either in their defence, cross-examination and their evidence in chief, he would not have come to the conclusion he made on page 237 of the records of proceedings.
He further argued that throughout the hearing, at the trial court, the respondent counsel never cross-examined the claimants on the serious issue of premarital promises that affected the consummation of the marriage and that the premarital promises which should take effect upon the demise of Late major Saka Ayorinde was not considered or resolved one way or the other. Rather, the trial court made use of the name on the registration of the land and school as whole sale issues for denying the appellants the claims before him.
He further submitted that the pre-marital promises was a part of the marriage contract; which is for the youthful Mrs. Oluwatoyin Ayorinde to love her husband, a fairly aged man and that if she loved him till the end, one of the houses, which she and the Late Major Ayorinde resides in, and the school wherein she is the headmistress would be hers, It was because the family, who are the respondents, immediately after the demise of her husband, Major Saka Ayorinde, were appointed to sell the properties, it was the fall-out of the attempted sale that this case emanated therefrom. That the trial court failed to appreciate and resolved the issue in a different way entirely.
T.O.S. Gbadeyan MNI submitted that, in the evaluation of evidence in civil cases, the evidence of both parties must be put on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it. He referred this court to the case of SHA v. KWAN (2000) 5 SC 178 AT 195-196; LEKO v. SODA (1995) 2 NWLR (PT 378) 432 at 435 to buttress his position.
He further argued that where the trial court fails to consider or properly evaluate the evidence before him, an appellate court can intervene and re-evaluate such evidence, he referred this court to the case of OKINO v. OBANEBIRA (1994) 5 NWLR (PT344) 348 at 349.
Learned counsel to the appellant further stated that the respondents did not categorically deny or traverse the averments in paragraph 31 – 36 of the amended statement of claim. He further argued that the averments which were deposed to by the claimant are no longer what they used to be, but are evidence capable of being fed into the scale of justice. Rather, the trial court rejected the evidence of PW3. The appellant, further stated that all the witnesses of the respondents were not present when the pre-marital promises were made to the claimant/appellant by the decease, as admitted in their claim, so, they are not in a position to state whether such promises were made or not.
He finally concluded that the trial Judge raised two issues suo motu and went ahead to resolve both issues and determined them against the appellant without giving the counsel the opportunity to address him, and that the trial judge wrongfully rejected the evidence of PW3, which he did not feed it into the imaginary scale and consequently dismissed the appellant’s action. He also stated that there was no proper evaluation of the remaining evidence of PW1 and PW2 that was fed into the imaginary scale, having wrongfully discountenanced the PW3’s evidence in its entirety; and that the judgment of the trial court is against the weight of evidence.
Appellant’s counsel then prayed this court to resolve the issue in favour of the appellant. appellant.
TA Abdulwahab Esq. learned counsel to the respondents on his own part, argued that where an appellant complains that a judgment is against the weight of evidence, he means that when the evidence adduced by him is balanced against that adduced by the respondents, the judgment given in favour of the respondents is against the weight which should have been given to the totality of the evidence before him. He cited the case of A.R. MOGAJI & ORS v. MADAM RABIATU ODOFIN & ORS AND LION BUILDINGS LIMITED v. M.N SHADIPE (1976) 12 SC 135 at 152 -153 to make his point.
He then stated that the tasks before this court, distillable from the authorities cited above are:
a. the evidence before the trial court
b. whether it accepted or rejected any, evidence upon the correct perception;
c. whether it correctly approached the assessment of the value on it
d. whether it used the Imaginary scale of justice to weigh the evidence on either side;
e. Whether it appreciated, upon the preponderance of evidence, on which side the scale- weighed, having regard to the burden of proof.
He cited the cases of DARAMOLA & ORS v. ATTORNEY GENERAL, ONDO STATE & ORS (2000) FWLR (Pt.6) 997 (A) 1015 PARAGRAPH G.H. (A) 1016 PARAGRAPH A. AND OSOLU v. OSOLU (2003) FWLR (Pt.172) 1777 at PAGE 1791 PARAGRAPHS A-C to adumbrate his position.
Respondents counsel further stated, that the appellant by virtue of Exhibits 7, 8 and 9 where deemed to have raised an issue of fact which would then invariably call for, or necessitate a finding from the court, he cited the case of OVERSEAS CONSTRUCTION COM. LTD. VS. CREEK ENT. NIG. LTD. (1985) 12 SC 158 AT 190-191 where the Supreme Court held that every disputed fact is an issue and also the case of BUHARI VS. OBASANJO (2005) 2 NWLR (PT910) 241 AT 483.
He then submitted that the findings of the trial judge were based on a calm review of the totality of the evidence led by the parties and that the position of the trial judge is fortified by the sacrosanct of the law on documentary evidence over oral evidence as held in FASHANU v. ADEKOYA (1974) 6 SC 83 AND JINADU VS. ESUROMBI – ARO (2005) ALL FWLR (Pt.251) 349 at 382 PARA B; this led the learned trial judge to pronounce the failure of the appellant’s case and accordingly, he dismissed same in it’s entirety.
Respondent’s counsel further stated that the appellant did not specifically challenge the findings of the trial court and as such, Ex debito justitiae, this issue ought to be resolved against the appellant. he cited the case of OSOLU v. OSOLU (2003) FWLR (Pt.172) 1777 at page 1791, paragraphs D-E to adumbrate the principle of law, as held by the Supreme Court that when a complaint is against the weight of evidence, the complaint should concern the totality of the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.
Respondents counsel further stated that where the findings of the lower court are challenged the law is settled that an appellate court will not ordinarily disturb the findings of fact made by the trial court, unless the findings of fact made by the trial court are shown to breach a specific rule of law or the finding amounts to a miscarriage of justice. Then, counsel prayed this court to discountenance all authorities cited in the appellant’s brief relating to appraisal and evaluation of evidence as same are patently inapplicable.
Respondents counsel concluded by stating that the appellant had failed to establish the right to exclusive use and possession of the properties on the part of her two children on behalf of whom she instituted the action. He further stated that the findings of the trial court are amply supported by evidence on record which are in no way perverse, and that the lower court correctly found the evidence of the appellant’s witnesses as not credible and weightless, because same was shattered under cross-examination. Counsel finally submitted that, the appeal has no basis and that the judgment of the trial court cannot be faulted on the basis of the decision in DARAMOLA VS. A.G. ONDO STATE (SUPRA).
Therefore, respondent’s counsel prayed this court to resolve this issue against the appellant.
The appellant in her reply brief submitted that the respondents’ reply brief paragraph 5. 11, has some of the factors raised by the trial court suo motu and that the case of AYORINDE v. AYORINDE (2004) 13 NWLR (PT 889) 83 at 104 is an interlocutory decision that has nothing to do with this case. She urged this court to discountenance paragraph 5. 14 and 5. 15 as they are submissions without premises and urged this court to allow the appeal.
Flowing from the first issue, there is danger in a court formulating issue(s) without calling on parties before him to address him on the issue. The two issues formulated by the trial court are:
158 at 190-191 where the Supreme Court held that every disputed fact is an issue and also the case of BUHARI v. OBASANJO (2005) 2 NWLR (pt.910) 241 at 483.
He then submitted that the findings of the trial judge were based on a calm review of the totality of the evidence led by the parties and that the position of the trial judge is fortified by the sacrosanct of the law on documentary evidence over oral evidence as held in FASHANU v. ADEKOYA (1974) 6 SC 83 AND JINADU v. ESUROMBI – ARO (2005) ALL FWLR (Pt.251) 349 at 382 PARA B; this led the learned trial judge to pronounce the failure of the appellant’s case and accordingly, he dismissed same in it’s entirety.
Respondent’s counsel further stated that the appellant did not specifically challenge the findings of the trial court and as such, Ex debito justitiae, this issue ought to be resolved against the appellant. He cited the case of OSOLU v. OSOLU (2003) FWLR (Pt.172) 1777 at page 1791, paragraphs D-E to adumbrate the principle of law, as held by the Supreme Court that when a complaint is against the weight of evidence, the complaint should concern the totality of the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence.
Respondent counsel further stated that where the findings of the lower court are challenged, the law is settled that an appellate court will not ordinarily disturb the findings of fact made by the trial court, unless the findings of fact made by the trial court are shown to breach a specific rule of law or the finding amounts to a miscarriage of justice. Then, counsel prayed this court to discountenance all authorities cited in the appellant’s brief relating to appraisal and evaluation of evidence as same are patently inapplicable.
1. Whether the late Major Saka Ayorinde made pre – marital promises to the claimant to build a house and establish a school for her which said promises were fulfilled before they got married.
2. Whether the claimant is, on the evidence before the court, entitled to the reliefs sought by her.
And, same were resolved; however, the resolution of the Issues formulated by the trial judge did not touch the live wire of the issues as raised by the appellant. This wrong approach led to the trial judge’s improper evaluation of evidence before the court. It would have been a different tone if the trial judge is guided by the issues formulated by the parties. From my assessment, the trial judge did not properly evaluate the evidence before the court, before feeding it into the imaginary scale of justice. The averments and pleadings on pre – marital promises, which were not controverted by the other party would have helped the case as a whole.
Similarly, the contention of the trial judge that one Tunji Ayorinde should have been called as a witness with utmost respect is uncalled for and not necessary. Was the evidence given by the claimant that there was a pre-marital promise faulted? The answer is no, because the trial Judge did not properly evaluate the evidence before him.
On the point that the document of the two properties in contention has the name of late Major Saka Ayorinde; and the fact that those other family members lived with the appellant and the late Major Saka Ayorinde, has not changed the compass of the case.
Having carefully considered and reflected on the pleadings of the parties, the evidence adduced on each side, their written addresses and the judgment of the trial court, evidence, the evidence of the witnesses were not properly evaluated in this case. See MOGAJI v. ODOFIN (1978) 4 SC 91 at 93, however, where such improper evaluation occurs, the appeal court can intervene and re-evaluates such evidence, see OKINO v. OBANEBIRA (1994) 5 NWLR Pt.349, 348 at 349, REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION v. JAMES (1987) 3 NWLR (Pt.61) 556, AND, BALOGUN v. ALHAJI (1988) 1 NWLR (Pt.70) 301
A cursory assessment of the pleadings will give some insight. This is in paragraph 31 – 36 of their pleadings,( the amended statement of claim )
31. Plaintiff avers that amongst other promises, her late husband Major Saka Adekunle Ayorinde promised her parents and relatives that he was going to establish a school for her to compensate her for the lost job. That he was going to build her a house to accommodate her and to prove to her parents that she would at all times be secured and her children well taken care of, both during his lifetime and in case he predeceased her.
32. That the plaintiff avers that her deceased husband actually fulfilled the said promises made to her parents during his lifetime, which were condition precedent to a valid contract of marriage between the plaintiff and her deceased husband.
33. Plaintiff avers that the marriage between her and her late husband was contracted under native law and customs. The ceremony of the said marriage took place at Obbo – Aiyegunle in Kwara State where her parents and her entire family approved their marriage.
34. Plaintiff further avers that the promises made to her parents served as the terms, foundation, and or condition precedent to their marriage which conditions her husband fulfilled before she finally got married to him.
35. Plaintiff avers further that only her husband can reverse his promises made to her as no one else can change what both her and her late husband had agreed to.
36. Plaintiff avers that her late husband by every indication had waived the position under native law and custom which decision guaranteed or paved the way for her to inherit whatever her late husband had left for her.
And in conjunction with the evidence of the Claimants on page 167 of the record of proceedings, from the above, the question is, was there a pre marital promise or not, was it proved or disproved? I never saw the demeanour or attitude of the witnesses at the lower court. But based on the first issue in this appeal, where it was held that raising issues suo motu and determining same by the trial court, without calling on the parties to address him on it, was held to have breached the fundamental rule of natural justice and fair hearing, the result is that the decision of the trial court will be set aside. And I hereby order it to be set aside and sent back to the Chief Judge of Kwara state for re-assignment to another judge and that it should be treated with all necessary urgency.
I abide by the N30, 000.00 costs as in the lead Judgment.
IGNATIUS IGWE AGUBE, J.C.A :I have been privileged to have a firsthand perusal of the judgment just delivered by my learned brother C.C. Nweze, J.C.A. and I am in complete agreement with his reasoning and conclusion on all the issues formulated by the parties which he has with his usual candour, finesse and erudition.
There is not much to say except to add my voice to the declaration by noble brother that the Court below failed to adhere to the fundamental principles of administration of justice by descending into the arena and assuming the role of an advocate qua judex in the case between the parties. He was definitely bound to be covered with the dust of the imbroglio to the extent that he was blinded by denying the Appellant a fair hearing.
As my Lord rightly put it, this approach of the learned trial judge was a travesty of justice and desecration of the hallowed temple where he as the chief priest ought to play the role of an unbiased umpire.
Besides the deprivation of the Appellant’s constitutional right-to fair hearing he refused to evaluate the evidence nor did he place same on the imaginary scale of justice.
In the final analysis the judgment of the Court cannot demonstrate in full a dispassionate consideration of all the issues properly raised and tried in the case and the said same could not have flown from the general drift of the evidence. See Ojogbue v. Nnubia (1972) 1 ALL NLR (Pt. 2) 226, and Adeyemo v. Arokopo (1988) 6 SCNJ 1 at 16.
My Lord of the Lower Court must have done cloistered justice as a result of which his judgment should be a classical case of perversity, the concomitant consequence which is an interference with such a judgment notwithstanding the fact that in law we are always loathe to interfere with findings of facts of a trial court who had the rare advantage of watching the demeanour of witnesses and hearing them testify
That being the case here, I am in tandem with my most erudite brother Nweze J.C.A; on the authorities cited that there was miscarriage of justice and accordingly the judgment of the Lower Court should be set aside I also allow the appeal and set aside the judgment of the Lower Court per Adebara J. dismissing the claim of the Plaintiff/Appellant. I abide by the order of retrial before another judge and as to costs.
Appearances
T. O. S. Gbadeyan, mni, with T. A. Giwa; I. Akangbe; Dr. Banji Oyeleke and A. BalaFor Appellant
AND
O. AyodeleFor Respondent
