OBOH v. OBOH (2021)

OBOH v. OBOH

(2021)LCN/15524(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/372/12

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

CHARLES OBOH (DEFENDING FOR HIS LAWFUL ATTORNEY MRS. DUPE ERHABOR) APPELANT(S)

And

GHANA OBOH (SUING THROUGH HIS ATTORNEY SUNDAY OBOH) RESPONDENT(S)

 

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State holden at Benin City delivered on the 26th April 2012 in respect of Suit No: B/89/03. The Respondent herein as the Plaintiff initially filed the suit against the Appellant seeking the following reliefs:
1. A declaration that the property known as, lying and situate at No. 6B, Midwest Street (formally No. 21, Midwest Lane Ward 40/A, Uselu, Benin City or Off Iheya Street, Benin City having been assigned by Chief P. O. Oboh to the Plaintiff inter vivos does not fall within the estate of Chief Peter Ogbeide Oboh at the time of his death and the same does not fall for inheritance by any of Chief P. O. Oboh’s Children.
2. A declaration that the occupation and the possession of the said premises by the defendant without the Plaintiff’s consent, permission and authority is unlawful, illegal and amounts to trespass.
3. The sum of N10,000,000.00 (Ten million naira) only being aggravated damages for the forcible and illegal occupation of the Plaintiff’s house.
​4. An order of perpetual injunction restraining the defendant, his servants, agents, privies and any person howsoever from further dealing, interfering and trespassing on the Plaintiffs house aforesaid.

​The facts of the case are that the Respondent and the Appellant are brothers born of the same father, late Chief P. O. Oboh, who died intestate in 1994, but they are from different mothers. The Appellant was the first son of late Chief while the Respondent is the 3rd son. Their father had properties at Ibadan Oyo State, at Benin City and at his hometown of Igueben in Edo State. It was the claim of the Respondent that the property in dispute, known as No. 6B, Midwest Street formally No. 21, Midwest Lane Ward 40/A, Uselu, Benin City was assigned to him by late Chief Oboh during his lifetime by way of sale that took place sometimes in 1993 in consideration of his love and affection for the Respondent together with an undisclosed amount of money. He relied on a deed of assignment and a survey plan registered in September 1995 after the death of Chief Oboh. In the course of the trial, the Appellant who was the defendant (Jones Oboh) died and was substituted by his eldest son Charles Oboh, the present Appellant, then defending the suit through his Attorney Mrs. Dupe Oboh Erhabor.

In response to the claims of the Respondent, the Appellant/defendant filed a further amended statement of defence and counter claim (pages 37 to 40 of the record of appeal) denying the claims of the Respondent and alleged that the house claimed by the Respondent was built by his late father who never informed any of the family members that he sold same to the Respondent/Plaintiff. He contended that the deed of assignment the Respondent relied upon was forged after the death of Chief Oboh and that contrary to the false claim of the Respondent/Plaintiff that the certificate of occupancy in respect of the house was lost, it is available and would be relied upon during trial of the suit. The Appellant relying on the same facts counter-claimed against the Respondent regarding the same property. He claimed that according to the Ishan Native law and Custom, the eldest surviving son of a deceased inherits ALL the properties left behind by the deceased who dies intestate and pleaded that he would lead evidence to prove this customary law. By that Ishan customary law, the Appellant being the eldest son of late Chief Oboh became the beneficial owner of the property known as house number 6B Midwest Street, Benin City, where the Appellant’s late father lived with his family since the death of his father (Appellant’s grand father). That the late Chief Oboh informed the Appellant’s father that the title documents of the disputed house were kept with a reputable bank in Benin city. That after the funeral of his father, (Late Jones Oboh) distributed the inherited properties and he gave a five flats storey building situate at No. 6A, Midwest Street, Benin City to the Respondent/Plaintiff’s mother and her children and he also gave the Respondent a five bedroom bungalow and a store situate at Afuda Igueben.

He further claimed that the Respondent was fraudulent in the purported deed of assignment, which he registered as No. 35 at page 35 volume 857 of the Lands Registry Benin City because the deed of assignment he relied upon was made after the death of Chief Oboh. That the signature of Chief Oboh on the said deed of assignment was forged and it is not the same as his actual signature on the certificate of occupancy in respect of the disputed house and that the certificate of occupancy was not missing contrary to the claim by the Respondent. Upon these facts, the Appellant claimed against the Respondent as follows:
1. A DECLARATION that the Defendant’s late father is the rightful owner by inheritance of the house known as No. 6B, Midwest Street, Benin City.
2. A PERPETUAL INJUNCTION restraining the Plaintiff, his servant, agents and privies from further disturbing the Defendant’s lawful enjoyment of his property
3. A DECLARATION that the deed of Assignment registered as No. 35 at page 35 in volume 857 of the Lands Registry in the Office at Benin City is null and void the same having been obtained by fraud by the Plaintiff.
4. General damages of N2,000,000.00

The Respondent’s filed a Further amended defence to the counter claim of the Appellant contained in pages 19 to 23 of the record of appeal, wherein he denied forging the deed of assignment and stated that he honestly thought the documents handed over to him by his late father included the certificate of occupancy. He also asserted that in 2003 the Appellant’s late father had him summoned before the Chiefs of Igueben about the sharing of their late father’s estate. After hearing from the parties, the Enogie of Igueben and some of his principal chiefs unanimously decided that in accordance with the Igueben native law and custom, the Appellant’s late father should have all other houses except the disputed house known as No. 6B 2nd Midwest Lane Uselu Quarters Benin City. It was pursuant to this ruling of the Enogie of Igueben that the Respondent withdrew the main claim but the Appellant proceeded with his counter claim) resulting in the trial on only the counter claim of the Appellant.

During the trial of the said counter claim, the Appellant’s attorney testified on his behalf and called two other witnesses and tendered five exhibits in support of the counter claim. The Respondent as defendant to the counter claim also testified through his attorney and called other witnesses through whom he also tendered documents. Counsel to both parties filed and adopted written final addresses. In the Court’s judgment, the learned trial Judge held inter alia that:
The defendant counter claimant has not satisfied this Court by cogent and credible evidence that he is entitled to the declaration he seeks in paragraph 25(a) to wit: that the defendant’s late father Pa Jones Oboh was the rightful owner by inheritance of the house known as No. 6B Midwest Street, Benin City and that the defendant, being the eldest surviving son of late Defendant (Pa Jones Oboh) is entitled to inherit same.

Consequently, the Appellant’s counter claim was dismissed. He felt aggrieved by the judgment and filed this appeal vide his amended notice of appeal filed on the 15th May 2013, relying on the following three (3) grounds of appeal:
GROUND ONE
The entire judgment of the lower Court delivered on the 26/4/2012 is against the weight of evidence.
GROUND 2
The learned trial Judge erred in law when she admitted a document made during the pendency of the suit as exhibits D5.
GROUND 3
The learned lower Court erred and misdirected itself in law and on the facts of the case when in the circumstances of this case he failed to grant the consequential order of injunction against the Plaintiff.

Upon the grounds reproduced supra, the Appellant prayed this Court to set aside the judgment of the trial Court and in its place, grant all the reliefs he sought. The Appellant’s brief of argument settled by Elder J. O. Aghimien (SAN) was filed on the 21st November 2018, wherein he identified the following three issues for the determination of the appeal:
1. Whether the entire judgment or decision of the trial Court is not against the weight of evidence adduced by the Appellant in this case. (Ground 1 of the amended grounds of appeal).
2. Whether the trial Judge having agreed in the evaluation of his evidence in this case that Exhibit D5 (i.e. minutes of customary arbitration) was not binding on the Defendant (now Appellant) because it was made during the pendency of the suit, was right in relying on the same document in coming to the conclusion to reject the Appellant’s counter claim of trespass to the property in dispute? (Ground 2 of the amended grounds of appeal).
3. Whether the trial Court has not misdirected itself in law and/or on the facts of this case and thereby occasioning miscarriage of justice when it failed to grant the consequential order of perpetual injunction against the Plaintiff’s continued trespass on the property in dispute? (Ground 3 of the amended grounds of appeal).

In opposing the appeal, the Respondent filed his brief of argument settled by Miss J. E. Edosa on the 26th November 2018, wherein the learned counsel distilled the following issues for determination from the grounds of the appeal:
1. Whether the learned trial Judge’s decision to dismiss the Appellant’s claim by declaration that he is entitled to inherit ALL his late father’s properties according to Ishan customary law when he did not plead or prove Ishan customary law of inheritance in support of the declaration sought?
2. Whether exhibit “D5” has any relevance to, or supports the claim of the Appellant that he is entitled to inherit ALL his father’s properties in accordance with Ishan customary law?
3. Whether the learned trial Judge was right in not ordering perpetual injunction when the plaintiff failed to prove that he was entitled to inherit all the properties of his late father according to Ishan customary law?

It is observed that the issues raised by each party reproduced supra are similar save for difference in couching language style. I will therefore adopt the Appellant’s issues as my guide in the determination of this appeal for the simple reason that he is the owner of the appeal. The issues will be determined in the sequence that the Appellant argued them; that is, issues 2 and 3 will be determined first before issue 1.

ISSUE 2
The Appellant’s argument in support of this issue was extensively canvassed from page 6 to page 16 of his brief. The learned senior counsel drew our attention to the fact this issue is central to the determination of this appeal because both the Appellant and the Respondent raised same in their respective written final addresses before the trial Court as shown in pages 125 and 147 of the record of appeal. Equally, the learned trial Judge seemingly agreed with the Appellant’s counsel and formulated the same issue as number two for its determination in the vexed judgment. The issue is concerned with the admissibility of exhibit D5, the minutes of the customary arbitration conducted by the Enogie of Igueben and his chiefs upon the Appellant’s reporting to them that the Respondent has sued him in respect of the ownership of the property in dispute. It was the submission of the Appellant that the trial Court having agreed with the Appellant’s position that the said exhibit was not admissible evidence ought to have expunged same from its records. However, he contended, that the learned trial Judge allowed himself to make reference to the exhibit and be guided by the contents thereof after holding it to be inadmissible evidence, not binding on the Appellant and of no moment.

Learned Appellant’s counsel referred us to pages 172 of the record where the learned trial judge specifically accepted the fact that “exhibit D5 represented what transpired at the Enogie of Igueben’s Court on the issue of inheritance between the Defendant and the Plaintiff regarding No. 6B, Midwest Street, Benin City.” But in contrast to this position, Appellant contended that the learned trial Judge proceeded to evaluate the content of the said exhibit to hold that he believed and found that in Igueben customary law, it is the first son and no other that inherits where his father is buried, which finding was against the unchallenged evidence of the Appellant’s witnesses in open Court to the effect that it is the eldest son that inherits all the properties the father left behind. It was the learned senior counsel’s submission that the evidence of first son inheriting only the property where his father is buried is a product of the Enogie’s decision in exhibit D5, which the trial Court had ruled to be of no effect and goes to no issue.

​He further referred this Court to page 171 of the record where the learned trial Judge evaluated the pleadings of the Respondent regarding what transpired at the customary arbitration at the palace of the Enogie of Igueben as reported in exhibit D5 and concluded that the contents of the exhibit D5 cannot bind the Appellant. Based on this conclusion, the learned trial Judge ought to have expunged the said exhibit D5 from the record on the ground that all that happened at the palace of Enogie of Igueben while the case was pending before the trial Court was inadmissible evidence. He posited that it was not enough to just hold that the proceedings were not binding on the Appellant, but the entire proceedings ought to have been expunged. That the reasoning of the trial Court wherein it held in one breath that the Appellant was not bound by exhibit D5 only to turn around to consider the same exhibit to the detriment of his case in the same judgment is contradictory and should not be allowed to stand. He relied on the cases of OYEWOLE VS. AKANDE (2009) 177 LRCN 76 at 81 (SC) and OTUKPO VS. JOHN (2012) 212 LRCN 141 AT 169 in urging this Court to expunge exhibit D5 from the record of appeal.

It was further contended that the entire judgment of the trial was delivered in bad faith because it allowed the decision of the Enogie to influence and dominate its reasoning and decision particularly as it related to the issues of inheritance of the property in dispute. That the learned trial Judge went into the field of adjudication with the plaintiff/Respondent in mind as his clear favourite, using the decision of the Enogie’s customary arbitration as his platform. It was contended that the learned trial Judge’s mindset was to reach a decision in line with the decision of the Enogie that the Respondent was the person entitled to the ownership of the disputed property, This is why (according to the Appellant) that the trial Court declined to grant a perpetual injunction against the Respondent even after it rejected his twin defence of gift inter vivours and purported transfer/ sale of the disputed property to him before his father’s death.

On the issue of fraud and forgery, he referred to the evaluation of evidence of the trial Court in pages 181 to 183 of the record where it found inter alia that the signature on the deed of assignment (exhibit D6) was not that of the late Chief Oboh consequent upon which it disbelieved the Respondent’s defence. He submitted that with the said finding of facts of the trial Court, the case of forgery and fraud has been proved against the Respondent; and the trial Court had no option but to resolve the ownership of the disputed properties in favour of the Appellant. We were urged to exercise the powers conferred on us by Section 16 of the Court of Appeal Act to do what the trial Court failed to do and enter judgment in favour of the Appellant and grant perpetual injunction against the Respondent in respect of the disputed property, thereby resolving issue 2 in favour of the Appellant.

​In response to the Appellant’s argument on issue 2 supra, the Respondent’s learned counsel submitted that evidence on record shows that it was the Appellant, upon being sued by the Respondent that reported to the Onogie of Igueben that the Respondent has taken him to the High Court over the distribution of their late father’s properties. He referred to the evidence of DW1 through whom exhibit D5 was admitted in evidence without any objection (copied in pages 54 to 56 of the record of appeal). That the learned trial Judge’s finding on exhibit D5 is contained in pages 174 to 175 which is contrary to the tenacious assertion of the Appellant’s learned senior counsel that the trial Court had held exhibit to go to no issue; or that it was inadmissible evidence. The Respondent submitted that the argument of the Appellant cannot substitute for lack of concrete evidence to prove or dispute a point in issue, and he relied on the cases of EKPENYONG VS. ETIM (1990) 3 NWLR (PT. 140) 594 and OBODO VS. OLOMU (1987) 3 NWLR (PT. 59) 111 for support.

​On the allegation of bad faith and bias against the learned trial Judge made by the Appellant in his submissions, the Respondent submitted that the learned senior counsel did not specify any utterance of the trial Judge from which bias or bad faith can be inferred. The complaints of the Appellant are against the findings of the trial Court, which the Respondent insisted are supported by evidence on record. He referred us to the case of WOMILOJU VS. ANIBIRE (2010) ALL FWLR (PT. 529) 1002 AT 1003, where the Supreme Court explained what may amount to bias or bad faith in a Court’s proceedings. It was argued that in this case, the record shows both parties were given equal opportunity to lead evidence in support of their respective cases and counsel on both sides cross-examined witnesses before the learned trial Judge made his finding that was supported by evidence on record. The Respondent submitted further that it is the party who approaches the Court for a declaration of title or of his right can only succeed by satisfying the Court on the strength of his case and not even on the admission by the Defendant vide pleadings. He referred to the cases of EWEKA V. BELLO (1981) 1 S.C. 101 AT 102 and OBAWOLE VS. WILLIAMS  (1996) 10 NWLR (PT. 477) 196 to support the submissions.

RESOLUTION
The learned senior counsel for the Appellant posited that issue two is central to the determination of this appeal in view of the trial Court’s reliance on exhibit D5 to reach its decision. In order to resolve this issue, I thoroughly examined the record of appeal to see the pleadings and evidence relating to this document admitted as exhibit D5.

The genesis of exhibit D5 was the report the Appellant made to the Enogie of Igueben after the Respondent had initiated his claims for ownership of the disputed house against him. The Appellant reported his younger brother (Respondent) to their traditional ruler of Igueben that the Respondent had sued him in respect of their father’s properties. The Respondent pleaded these facts in paragraphs 3(c) and (d) and 14 of the Respondent’s further amended defence to counter claim contained in pages 19 to 23 of the record of appeal. He averred specifically in paragraph 14 of the amended defence to the counter claim:
That the plaintiff will lead evidence that it was after the defendant summoned him before the Enogie of Igueben and the Enogie decided that even if his late father, Pa. Peter Oboh has not given the property to the Plaintiff inter vivos, it was the plaintiff’s by tradition, that he instructed his solicitors to discontinue his suit against the defendant.

​In his response to the pleadings of the Respondent on the proceedings conducted by the Enogie of Igueben, the Appellant averred in paragraph 2(c) and 11 of his reply to amended defence to counter claim (pages 24 to 27 of the record) that:
In denial of paragraph 3(c) and (d) of the Amended Defence to counter claim, the Defendant/Counter claimant avers that it is not the responsibility of the ENOGIE and Chiefs of Igueben to share and distribute the estate of his late father P. O. Oboh.
In denial of paragraph 14 of the Amended Defence to Counter Claim, the Defendant [Counter Claimant avers that he did not summon the Plaintiff before the Enojie of Igueben. The truth is that the Defendant/Counter Claimant was invited by the Enojie of Igueben and at the meeting he (i.e. Defendant) informed the Enojie the issue in contention was a subject of litigation. The Defendant was not aware that any decision was taken by Enojie on the matter.

Therefore, from the onset it is clear that the parties have joined issue in respect of the meeting held before their traditional ruler with regards to the ownership by inheritance of the property in dispute. It is also noted that in proof of the averments supra, the Respondent testified on what happened in the proceedings before the traditional ruler and tendered exhibit D5 in support. In their respective final written addresses, the Respondent posited that since the Appellant initiated the proceedings before the Enogie of Igueben that led to the decision in exhibit D5, he is bound by it and estopped from laying further claims to the disputed property. On the other hand, the Appellant under his issue four (pages 71 to 74 of the record) denied submitting to customary arbitration evidenced by exhibit D5 which he said was inadmissible in law having been made during the pendency of the proceedings.

After considering the pleadings and evidence and the addresses of counsel, the learned trial Judge (in page 173 to 175 of the record) rejected the argument of the Respondent that the exhibit D5 should operate as estoppel against the Appellant. He reasoned, correctly in my view, that the customary arbitration cannot defeat a party’s right to approach the High Court (which has unlimited jurisdiction) to have his complaint judicially determined. Thus, his holding that the content of exhibit D5 (customary arbitration) “cannot bind” the Appellant from further seeking judicial intervention on the dispute as argued by the Respondent. There is no complaint against that holding of the trial Court and it stands unchallenged.

The complaint and argument of the Appellant canvassed before us under this issue is that since the learned trial Judge held exhibit D5 ‘was not binding on Appellant’ he ought not rely on the same exhibit that he declared “inadmissible evidence” on the ground that it was made during the pendency of the suit and it ought to have been expunged from the record. Indeed, the Appellant made the exact same argument before the trial Court, and the learned trial judge’s decision on that argument is contained in page 175 of the record of appeal thus:
On the issue that Exhibit D5 was made during these proceedings by an interested party and therefore inadmissible, it is pertinent to state that it is the Defendant counter claimant’s father late Jones Oboh who initiated the proceedings in Enogie of Igueben palace that led to Exhibit D5 while this suit was pending. This suit was initiated on 13/2/2003 and the customary arbitration in the Enogie’s palace took place in August of the same year. It is my view that Exhibit D5 was made at the instance of late Jones Oboh and not the plaintiff. The fact that the decision went against him is immaterial. He cannot turn around to say it was made by the Plaintiff as an interested party. Defendant too is an interested party.

The above finding is of fact that indeed the Appellant’s late father initiated the proceedings leading to Exhibit D5, which he turned around to argue that it was inadmissible evidence. In fact, it was as a result of the proceedings contained in exhibit D5 that the Respondent withdrew his claims, but the Appellant then proceeded to file what he erroneously termed a “counter claim”, which indicated that he rejected the verdict of the traditional ruler. It was because of his rejection of the Enogie’s verdict that the trial Court held, rightly, that the customary proceedings of Enogie of Iguebe could not operate as estoppel by way of res judicata against the Appellant, which it could have if he had accepted the decision contained therein. This was only as far as his right to proceed with his claim before the High Court was concerned and no more.

Therefore, exhibit D5 remained evidence before the trial Court having been pleaded and issue joined on it as I earlier alluded. Despite the fact that it was rejected by the Appellant in preference for his case to be determined by the lower Court, his rejection of the Enogie’s verdict in exhibit does not mean it was inadmissible evidence especially in view of the evidence of its maker, the Respondent’s witness through whom it was admitted. Again I find that contrary to the contention of the Appellant, the trial Judge never pronounced exhibit D5 as “inadmissible evidence”. It is clear that the decision of the trial Judge that the Appellant quoted in paragraph 4.11 of his brief supports this finding and for avoidance of doubt, the learned trial Judge held that:
I find therefore that the Plaintiff (Defendant of counter claim) has not in his pleadings and by exhibit D5 satisfied the requirements in law for the Court to hold the customary arbitration between the parties by the Enogie of Igueben as estoppel against the Defendant. So I agree with the submissions of defendant (Counter claimant’s) counsel that the customary arbitration conducted by the Enogie of Igueben cannot bind the Defendant counter claimant. (Underlining supplied).

The contention of the Appellant that the trial Judge declared exhibit D5 inadmissible and yet relied on it is incorrect and designed to mislead us. It is hereby disregarded. I am in agreement with the learned trial Judge’s holding that the Appellant having initiated the proceedings of the customary arbitration that went against his interest cannot turn around to declare it inadmissible evidence. It is tantamount to evidence against self-interest and the opponent is entitled to rely on such evidence against the party. I resolve issue two against the Appellant.

ISSUE 3
In arguing this issue, the learned senior counsel for the Appellant contended that the Respondent’s withdrawal of the claims on the disputed property in lieu of the purported report of the customary arbitration conducted during the pendency of the suit, he has literally shot himself on the foot and became lame to prosecute his case of ownership to the property which he has taken by force of arms, trespassed into and evicted his elder brother, the late Jones Oboh. That by withdrawing his claims, the Respondent has lost every opportunity of justifying his claim of right of ownership to the property and the basis for his forceful eviction of the Appellant, especially as the trial Judge held the report of the customary arbitration Court (exhibit D5) as inadmissible evidence. Moreover, the title document he relied upon (exhibit D6) has also been found to be fake and fraudulently made by him. It was submitted that in view of the evidence given by the Respondent that he is still in possession of the disputed property and re-echoed by the Appellant’s Attorney that his late father was chased out of the house by the Respondent, the Respondent is not in lawful possession but a mere trespasser who used viet amis to gain control of the house in dispute. In the circumstance, the learned senior counsel submitted that the trial Court misdirected itself, which misdirection occasioned a miscarriage of justice when it refused to grant consequential order of injunction restraining the Respondent from further trespass, occupation or possession of the house in dispute. This Court was urged upon to intervene.

​The Respondent argued issue three per contra and drew the Court’s attention to the fact that having withdrawn his claims before the trial Court he only defended the suit/claims of the Appellant. In response to the argument of the Appellant regarding failure of the trial Court to grant perpetual injunction, he relied on the case of GOLDMARK (NIG.) LTD VS. IBAFON CO. LTD (2012) 40 NSCQR 1763 at 1820, where the Apex Court held that a perpetual injunction is based on the final determination of the rights of the parties and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after action in respect of every such infringement. The Respondent submitted that in this case, there was nowhere that the Appellant pleaded that Ishan and Igueben have the same custom under which he claimed to have inherited the disputed property. He argued that the trial Court was right to hold that the evidence of DW2 to that effect goes to no issue.

​On the argument that the learned trial Judge erred in not making a perpetual injunction, the Respondent argued that this submission of the Appellant was predicated on four grounds namely; that the Respondent did not file a defence to the counter claim, that the trial Court found exhibit D5 to be inadmissible evidence, that the title document relied upon by the Respondent was forged and that the Respondent admitted that he was in possession of the disputed property. In answer to this grounds of argument, the Respondent referred to pages 19 to 23 of the record which shows his further amended defence to the counter claim on which the suit was contested. He submitted that the Appellant has the burden to prove his case on the relevant facts even where no defence was filed, relying on the cases of AMODU VS. AMODE (1990) 5 NWLR (PT. 150) 356 and NDAYAKO VS. DANTORO (2004) 13 NWLR (PT. 889) 148 AT 172 for support.

It was further argued that the learned trial Judge did not say anywhere in the judgment appealed against that exhibit D5 was inadmissible evidence. Rather, the trial Court held in page 172 inter alia that the exhibit D5 was a customary arbitration and was made at the instance of the Appellant. As such, it has no bearing on injunction. Further argued that the issue before the trial Court was whether the Appellant succeeded in proving that under the ISHAN or IGUEBEN customary law he is the right person to inherit ALL his father’s properties or whether the trial Court relied on exhibits D5 or D6 in dismissing his claims. He submitted that the Appellant’s claim was dismissed because he failed to prove his case.

On the argument of the Appellant that since the Respondent admitted being in possession of the disputed property which he took by force, the Court ought to grant perpetual injunction on the basis of trespass, the Respondent submitted that the case of the Appellant’s case before the trial Court was that he is entitled to the property in dispute under Ishan customary law. He did not claim in trespass and the trial Court found that he did not plead any custom on which he based his claim nor did he convince the Court by credible and cogent evidence that he is entitled to the declaration he sought. That the Court cannot grant a perpetual injunction on mere speculation, but only on a right known to law or equity and the trial Judge was right to refuse the perpetual injunction. He relied on the cases of ADENIRAN VS. ALAO (1992) 2 NWLR (PT. 223) 350 and AFROTEC SERVICES (NIG.) LTD VS. MIA & SONS LTD (2000) 15 NWLR (PT. 692) 730 for support.

RESOLUTION
This issue is whether the trial Court has not misdirected itself in law and/or on the facts of this case and thereby occasioned miscarriage of justice when it failed to grant the consequential order of perpetual injunction against the plaintiff’s (Respondent) continued trespass on the property in dispute.
It is trite law that where a party alleged misdirection of law, he must show particulars of the misdirection related to a specific finding or observation or reasoning in the judgment of the trial Court. The particulars of the alleged misdirection must necessarily be stated because not every misdirection will be fatal to the decision of the trial Court or lead to setting same aside on appeal. See M/V CAROLINE MAERSK & ORS. VS. NOKOY INV. LTD (2002) LPELR- 3182 (SC) and OKOTIE-EBOH VS. MANAGER & ORS. (2004) LPELR.

The alleged misdirection complained of by the Appellant under this issue stated in paragraphs 5.2 and 5.3 of his brief is as regards the withdrawal and subsequent striking out of the claims initially filed by the Respondent. I agree with the Respondent’s argument that having withdrawn his claim, the Respondent only defended the suit and the Appellant being the claimant has the onus to prove his claims before the trial Court to entitle him to the reliefs he sought including perpetual injunction. In fact, in my view, it is a wrong nomenclature used to refer to the Appellant’s claim as a “counter claim” especially as it was filed after the Respondent’s initial claim was withdrawn and struck out, which fact was stated/admitted by the Appellant in paragraphs 5.1 to 5.2 of his brief of argument and in item 3 of his summary of facts in paragraph of the said brief. He stated therein that the Respondent’s claim was withdrawn in lieu of the customary arbitration (exhibit D5) and it was struck out after which the Appellant’s “pending application for Counter Claim against the Plaintiff was granted and the matter proceeded to trial of the counter claim alone.” The Appellant argued that: “By withdrawing his claims of the ownership of the property in dispute, No. 6B Midwest Street, Benin City while the Defendant’s counter claim for the same property proceeded on trial, the plaintiff literally shot himself by the foot and became lame to prosecute his case of ownership of the same property he had by force of arms trespassed into…” This proposition/contention is wrong in law because the withdrawal of the suit by the Respondent before leave was granted to the Appellant to “counter claim” means that there was no claim the Respondent was prosecuting. His claim was struck out and therefore only the claim of the Appellant remains and the role of the Appellant in that suit was the claimant while the Respondent became de facto and de jure the defendant of the suit and ought to be addressed as such.

​As stated earlier, the order of perpetual injunction sought by the Appellant was consequential to the declaration of his right of ownership by inheritance of the disputed house. It follows therefore, as rightly argued by the Respondent, that there must be a finding regarding his right to ownership of the property before a ‘consequential’ order of perpetual injunction can be validly made against the Respondent. In other words, the Appellant must prove, by credible evidence, his entitlement to the ownership of the disputed property by inheritance and in accordance to the Ishan native law and custom, which is his main claim, before a consideration of a perpetual injunction in his favour can be made. In the case of IDOGBO & ORS. VS. AJAYI (2017) LPELR- 42435, BARKA, JCA speaking for this Court held at page 24, paragraph A-E that:
It is the law, that where a party is laying claim to title to a piece of land by inheritance and there is no will to attest to the mode of the inheritance, he must call witnesses to testify as to his entitlement to inherit the said landed property under the appropriate native law and custom. In the instant case, the plaintiff having asserted that he inherited the property in contest under the Ora Native law and custom of inheritance, has the duty of proving his assertion by credible, compelling and acceptable evidence. It is only when the plaintiff succeeds in proving the assertion, that the defendant now offers his side of the story, which will then be placed on each side of the proverbial scale in reaching a verdict as to which weighs higher in value.
​The onus is therefore squarely on the Appellant who asserted his title to the disputed property by inheritance under Ishan customary law to first establish, at least prima facie, this claim before the trial Court can even give a glance at the defence of the Respondent in order to apply the preponderance of evidence rule. Thus, the withdrawal of the claims by the Respondent does not obviate the Appellant of this onus of proof or automatically mean that the Appellant is entitled to the grant of his claim as he posited in paragraphs 5.2 to 5. 3 of his brief of argument. It only means that there is only one claim before the Court and the principle of law enunciated supra must be applied. The Appellant has to satisfy the Court by evidence that he is entitled to his claim regardless of the defence of sale inter vivos put up by the Respondent.

​The record shows that the learned trial Judge after considering the evidence led by the Appellant held in page 183 of the record of appeal that the Appellant has not satisfied him by cogent and credible evidence that he is entitled to the declaration that his late father was the rightful owner by inheritance of the house in dispute and that the Appellant being the eldest surviving son of the late defendant (Pa Jones Oboh) is entitled to inherit the same. Consequently, there was no basis to grant a perpetual injunction, having refused to grant the declaration of title to the disputed property sought by the Appellant. In the circumstance, the learned trial Judge properly directed himself in law and in facts when he laid the burden of proof on the Appellant and not the Respondent. I have not seen any nits-direction on the part of the learned trial Judge let alone a miscarriage of justice as contended by the Appellant that will necessitate my intervention. I resolve issue three against the Appellant.

ISSUE ONE
On this issue, the Appellant referred to his pleadings copied in pages 39 to 40 of the record wherein he pleaded inter alia that according to Ishan native law and custom, the eldest surviving son of a deceased inherits all the properties left behind by the said deceased who died intestate. However in his argument, the learned senior counsel referred to ‘Esan’ rather than ‘Ishan’ native law and custom that the Appellant pleaded and claimed that the Appellant’s late father was entitled to all the properties left behind by Chief Oboh, while the Respondent’s defence was that there is exception to this rule where the deceased had a polygamous marriage before his death. Learned senior counsel submitted that the facts pleaded on this issue were clear and unambiguous and if the Respondent was in doubt, he was entitled to ask for better particulars on the ‘Esan’ native law and custom that the Appellant relied upon, but he did not. He urged the Court to hold that the Appellant had pleaded and adduced sufficient oral and documentary evidence (vide his legal attorney and DW2) to prove the ‘Esan’ native law and custom under which he was entitled to inherit all the properties of his late father including the disputed property. That even the Respondent’s first witness confirmed that under ‘Esan’ native law and custom when a man dies the first son inherits all his father’s properties, thus supporting the Appellant’s case.

​It was further argued that the Respondent who alleged that there was an exception to the ‘Esan’ customary law has the onus to prove the exception, or that the Igueben customary law is different and distinct from ‘Esan’ custom, which he failed to do. That the trial Court also failed to make a finding of fact on whether or not the Igueben customary law of inheritance exists independently from the ‘Esan’ customary law of inheritance as claimed by the Respondent who wants the Court to believe. He referred to the trial Court’s judgment conclusion in page 183 of the record to submit that the decision of the trial Court is not a reasonable conclusion to be drawn from the facts and evidence on the record.

The Appellant’s learned counsel further submitted that the trial Court’s view that the Appellant’s evidence of customary law of inheritance of his right to inherit ALL properties left behind by his late father is not corroborated by the evidence of another witness was wrong because DW2 and Respondent’s 1st witness under cross-examination was appropriate corroboration required. The fact that such corroboration came from the opponent witness made it more credible. Thus the Appellant was entitled to the reliefs sought and an equitable perpetual injunction against the Respondent as a trespasser to the disputed property, and being in possession even if he (Appellant) was unable to prove ownership of same.

​It was also argued for the Appellant that the learned trial Judge in this case misapprehended the facts of the case and lost focus on the position of the applicable law when for instance; he held that he believed the decision of the Enogie in exhibit D5 as the custodian of Igueben customary law of inheritance between the parties regarding the disputed property, even when the Enogie did not give evidence before the Court and he (learned trial Judge) has declared exhibit D5 as inadmissible evidence. The Appellant relied on the case of ALHAJI K.O.S. ARE VS. RAJI IPAYE & ORS. (1989-1992) 3 S.C.J.E. 208 at 209, OTUKPO V. JOHN (2012) 212 LRCN 141 and ODUTOLA & ORS. VS. MABOGUNJE & ORS. (219 (PT. 1) 123 and others in urging us to intervene with the decision of the trial Court in this case.

​On his part, the Respondent also referred us to the pleadings of the Appellant upon which he sought declaration that his late father was the rightful owner of the disputed property by inheritance according to the Ishan native law and custom. He submitted that the Appellant who based his claim on Ishan native law and custom did not lead evidence to prove that the said Ishan customary law is judicially noticed and or prove incidences of the Ishan customary law of inheritance. That the evidence led by the Appellant to support his claim of right of ownership was replete with contradictions and at variance with pleaded facts. It was submitted that the learned trial Judge to hold that he did not lead cogent evidence in support of declaratory reliefs he sought. More so, the Appellant failed to file a reply to the Respondent’s pleadings in which he raised the applicable customary law is Igueben and not the Ishan customary law that the Appellant relied upon, and there was no evidence led during the trial to prove that Igueben and Ishan customary laws are the same. Respondent’s learned counsel relied on the provisions of Section 16 and 18 of the Evidence Act, 2011 and the cases of OGOLO VS. OGOLO (1990) 3 NWLR (PT. 137) 182 at 207 and AKEREDOLU VS. AKINREMI (1989) 3 NWLR (PT. 108) 167 at 172 to urge the Court to dismiss this appeal and uphold the decision of the trial Court.

RESOLUTION
The Appellant’s complaint under this issue is against the evaluation of the evidence led before the learned trial Judge. As stated supra under my determination of issue three, the claim of the Appellant as per paragraph 20 of his statement of claim (page 17 of the record) is that according to the Ishan Native Law and Custom, the eldest surviving son of the deceased inherits ALL the properties left behind by the said deceased who dies intestate. Accordingly, his late father who was the eldest son of late Chief Peter Oboh was entitled to inherit ALL the propertied left behind by Chief Oboh including the disputed House NO. 6B Midwest Street Benin City.

The Appellant’s claim is clear as crystal and the law is settled as alluded supra under my resolution of issue three, that he has the duty to establish his claim by cogent and credible evidence before the trial Court could consider the defence put up by the Respondent. See the case of Idogbo & Ors. Vs. Ajayi (supra) and Kaka Vs. Mohammed (2017) LPELR-43419 (CA) and others.

Under this issue, the Appellant complained that the decision of the trial Court is against the weight of the evidence led before it. In the case of AWUSA VS. NIG. ARMY (2018) LPELR-44377 (SC) the Apex Court held that:
The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent. Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence…

Evaluation of evidence entails the trial Judge examining of all evidence before him before making a finding. This is done by putting all the evidence on an imaginary scale to see which side outweigh the other by way of credible evidence. See LAFIA L. G. VS. EXEC. GOV. OF NASARAWA STATE (2012) LPELR-20602 (SC).

So where the Appellant complained that the judge did not evaluate evidence properly as in this case, he has the duty to show the Appellate Court how the correction of the omission will make the decision wrong and liable to be set aside. For example, the Appellant must show which admissible evidence the trial Judge rejected or inadmissible evidence he relied upon to the extent that resulted in a miscarriage of justice. In other words, it is not just enough to complain against the evaluation of evidence, but the Appellant must show that the decision of the trial Court was wrong. See PETROLEUM (SPECIAL) TRUST FUND VS. WESTERN PROJECT CONSORTIUM LTD & ORS. (2006) LPELR-7719 and ODUNUKWE VS. OFOMATA & ANOR. (1999) 6 NWLR (PT. 602) 416 at 425 (CA).

The law has been stated and re-stated in uncountable number of decisions of this Court and the Supreme Court that the duty of evaluation of evidence and the ascription of probative value to such evidence is the primary duty of the trial Court. This is especially so where the evaluation of evidence is on the conflicting oral testimonies and belief or disbelief of such evidence. The Appellate Court cannot be in a position to recapture that advantage that the trial Judge had in observing the witnesses as they testified. Therefore, unless the Appellant satisfied this Court as an Appellate Court that the decision of the trial Court was wrong vide improper evaluation of evidence, we have no business re-evaluating the evidence to substitute our own decision for that of the trial Court.

​Under this issue, the Appellant argued that he had adduced evidence to prove the fact that under Esan (Ishan?) native law and custom, he is entitled to inherit the disputed house. But even his learned counsel submission in paragraph 6.6 of the Appellant’s brief is contradictory. Hear him:
We urge Your Lordships to hold that the Defendant/Counter-claimant has pleaded and adduced sufficient oral and documentary evidence to prove the Esan Native Law and Custom under which he inherited ALL his late father’s properties including the property in dispute. The said customary inheritance has been supported by both the evidence of his lawful Attorney, the Defendant’s DW2 and the Plaintiffs 1st witness. The Properties were shared by Jones Oboh in the presence of the elders of Afuda Community in compliance with Esan and Igueben customary law which also form part of the Esan customary law of inheritance. (Underlining supplied)

The underlined portion of the Appellant’s learned counsel argument is contradictory. Is it that the Appellant inherited ALL the properties or that the properties are shared according to the Ishan custom, same as Igueben custom. Secondly, the learned Appellant’s counsel referred to evidence of the Respondent’s 1st witness and claimed that the witness said under cross-examination that in Esan native law and custom, the 1st son inherits all his father properties. This argument prompted me to check the record particularly the evidence of Respondent’s 1st witness (Chief Ebanahita Ekhoye Ekpan) in pages 54 to 58 of the record and his evidence under cross-examination is specifically in page 57 to 58. There is nowhere this witness stated what the learned senior counsel ascribed to him that in Ishan custom the 1st son inherits all his father’s properties. He actually stated the opposite that it is only the place where the father is buried that is exclusively inherited by the 1st son and it is never shared, and after that the 2nd son takes the next property whether it is a land or a building and so on. See page 57 paragraphs 10 to 25 of the record of appeal.

​I have also examined the evidence given by the Appellant’s lawful attorney (Dope Oboh Erhabo), his 1st witness in page 43 to 48 especially under cross-examination in page 47 paragraphs 15 to 20 of the record of appeal where she echoed the evidence of Respondent’s 1st witness and stated that:
In Igueben custom, the senior son of a deceased inherits the property where the deceased is buried. Each son is entitled to inherit a deceased properties in Ishan custom if there is property to inherit, but if there is none to inherit, it is not a do or die affair. The senior son uses his discretion over the property to be distributed.

The record shows that it is indeed the evidence of the Appellant that corroborated the defence of the Respondent that in Ishan customs, all the sons are entitled to inherit their father’s properties except the property where the deceased is buried which is exclusively inherited by the 1st son.

The learned trial Judge in the judgment extensively considered the pleadings and evidence adduced by the parties. For example the Respondent pleaded that under Igueben native law of inheritance that is applicable to both parties, the 1st son does not inherit all his father’s properties in a polygamous marriage, which was a new issue raised and not responded to by the Appellant. See page 157 of the record where again the learned trial Judge held correctly that the burden of proving a particular custom is on he who alleged its existence.

The Appellant also complained that the learned trial Judge having found that the title documents the Respondent relied upon were fraudulent but still refused to grant the reliefs sought by the Appellant. It is observed that the central issue in this case was the right of inheritance of all the properties of late Chief Oboh by the Appellant vide Ishan customary law. So as rightly found by the trial Court, he has the burden to prove that custom upon which he claimed the right to the ownership of the disputed house, regardless of what the Respondent’s defence was. Thus regardless of the finding the trial Court on the title document relied upon by the Respondent, the Appellant must succeed on the strength of his own claims.

​In the final analysis, I have not seen any wrongful evaluation of evidence made by the learned trial Judge nor did the Appellant convince me that the decision of the trial Court was wrong. On the contrary, I find that the learned trial Judge correctly evaluated the evidence placed before it and arrived as correct decision in refusing to grant the reliefs the Appellant sought for failure to establish his claims. I am not persuaded by the Appellant to tamper with the finding of facts made especially from the oral testimonies of the witnesses. I resolve issue one against the Appellant.

Having resolved all the issues against the Appellant, this appeal lacks merit and deserves a dismissal. I dismiss it. I affirm the judgment of the Edo State High Court delivered on the 26th April 2012 delivered by Justice E. A. Edigin. Parties shall bear their respective costs.

JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment just delivered by my learned brother, Aliyu, JCA. My lord has comprehensively dealt with the matter. I therefore adopt the same in finding that the appeal is devoid of merit and I accordingly dismiss the same. I abide by the consequential orders made in the judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother BALKISU BELLO ALIYU, JCA in this appeal and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I also abide by all consequential order(s) in the lead judgment.

Appearances:

J. O. AGHIMIEN (SAN), WITH HIM, OSOTO AKENUWA, ESQ. For Appellant(s)

J. E. DIGBAN, ESQ. For Respondent(s)