ONYIBOR ANIEKWE & ANOR. V. MRS. MARIA NWEKE (2013)

ONYIBOR ANIEKWE & ANOR. V. MRS. MARIA NWEKE

(2013)LCN/5920(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of February, 2013

CA/E/311/2009

RATIO

APPEAL: AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURTS

An appellate court will not interfere with a finding of fact made by the trial court unless it is shown that such finding of fact does not derive from the evidence before that court or is not related thereto. See OGUNDULE V. CHIEF OLABODE (1973) 2 SC 71; BALOGUN V. AKANNI (1988) 1 NWLR (PT. 70) 301.PER ISAIAH OLUFEMI AKEJU, J.C.A

COURTS: DUTY OF THE COURT: THE PRIMARY DUTY OF THE TRIAL COURTS
From the judicial decisions of our superior courts, it is now trite that the evaluation of the evidence adduced at the trial and the ascription of probative value thereto are primarily the functions of the trial court that saw the witnesses, heard their testimony and observed their demeanour. Where it is shown from the record that the trial court has satisfactorily carried out these functions, an appellate court that has not had the privilege available to the trial court will not embark on an evaluation or reevaluation of the same evidence only for the purpose of substituting its own views for those of the trial court. See FAGBENRO V. AROBADI (2006) 7 NWLR (PT. 978) 174; SHA V. KWAN (2000) 5 SC 178; OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT. 565) 226.PER ISAIAH OLUFEMI AKEJU, J.C.A

COURT: DUTY OF THE COURT: HOW THE COURT SHOULD APPROACH THE EVALUATION OF EVIDENCE IN CIVIL CASES

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. ONYIBOR ANIEKWE
2. CHINWEZE ANIEKWE Appellant(s)

AND

MRS. MARIA NWEKE Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A, (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, sitting at Ogidi delivered on 13/3/2008 in Suit No. A/63/91 originally commenced through the claim dated 10th January, 1991 and filed at Mballitolu District of Anambra State Customary Court but subsequently transferred to the High Court upon the order made on 19/2/91 by Awka Division of Anambra State High Court.
In the Statement of Claim filed on 22/5/2000, the respondent plaintiff sought the following reliefs against the defendants:-
“26. WHEREOF the plaintiff claim against the Defendants jointly and severally as follows:-
(a) A declaration that the plaintiff is the person entitled to statutory right of occupancy of piece or parcel of land which is situate at Amikwo village, Awka and verged Red in her plan No. TLD/ANO1/92 and filed with this Statement of Claim.
(b) An injunction restraining the Defendants, their servants, and agents from further trespass on the said piece or parcel of land.
(c) An order of court compelling the 2nd Defendant to remove part of his building constructed into the plaintiff’s land.
(d) And order of court compelling the Defendants to share the Nwogbo Okonkwo Eli family lands averred in paragraph 16 of this Statement of Claim.
IN THE ALTERNATIVE, an account of the proceeds of the sale of the family lands and payment over to the plaintiff what is due to her.
N500.00 (Five Hundred Naira) General damages for Trespass.”
The claim was originally against the current 2nd appellant and one Anieke Nwogbo as defendants but Anieke Nwogbo died in the course of the proceedings, and was substituted by the present 1st appellant.
In the Amended Statement of Defence filed on 6/2/07, the defendants denied the plaintiff s claim and also filed a Counterclaim for:-
“A declaration that the defendants father being entitled to the Statutory right of occupancy over the piece or parcel of land the subject – matter of this suit, the 1st defendant being the 1st son of his late father is now deemed to be entitled to statutory right of occupancy over the same land in accordance with the native law and custom of Awka people”.
At the trial the respondent testified and called two other witnesses while the 1st appellant and three other witnesses testified for the defence. The learned trial judge granted the declaration and injunction sought by the plaintiff and dismissed the defendants’ Counterclaim.
Dissatisfied with the judgment, the defendants (now called the appellants) filed Notice of Appeal on 5/5/08 with two grounds of appeal, and in pursuance of the appeal the Appellants’ Brief of Argument settled by Emmanuel O. Achukwu Esq. of Counsel and filed on 9/3/10 was deemed filed on 6/10/2010. The appellants formulated the following issues for the determination of the appeal.
a. Whether the learned trial Judge was right in holding that,
“The evidence of the DW1 that he is the person entitled to the whole of No. 19 Ogbuagu Lane to the exclusion of the plaintiff over her husband’s property is untenable as it is contrary to public policy and offends the rule of natural justice”.
b. Whether the learned trial judge correctly evaluated the evidence before it.
The above two issues were adopted by the respondent and argued by Chief Emma Odum, the learned Counsel who settled the Respondents’ Brief of Argument filed on 2/11/2010.
In the argument of the first issue, the appellants contended that the finding of the learned trial judge which forms issue one in this appeal is besides the facts in issue and does not address the basis upon which the parties fought the case. It displays erroneous assumption that the respondent was being denied of her widowhood rights or her entitlement to the property of her late husband which was not the case of the parties.
According to learned Counsel, the case of the respondent as averred in paragraphs 10, 11 and 12 of the Amended Statement of Claim is that Obiora Okonkwo Eli shared the land into two between the husband of the respondent and the father of the appellants and built two houses each for each of them while the respondent inherited all the property that belonged to her husband. It was contended that this fact that the respondent inherited her husband’s property was not challenged by the appellants who rather challenged the assertion that the land in dispute was inherited by the husband of the respondent. The appellants had claimed that the father, Aniekwe Nwogbo inherited the compound as the 1st son of Nwogbo Okonkwo Eli in accordance with native law and custom.
It was then contended that the issue of disinheritance does not arise in this case and that finding of fact by the trial court was uncalled for. The learned Counsel submitted that a court cannot of its own make a case for the parties different from the one the parties have made for themselves, citing ODEKILEKUN V. HASSAN (1997) 12 SCNJ 14; CLAY INDUSTRIES NIG. LTD V. AINA (1997) 7 SCNJ 491.
On this issue, the respondent contended that the above finding though obiter is in line with the facts in issue and correctly flows from the pleadings of the parties and their evidence.
It was contended that the issue of disinheritance is germaine to the case and the finding of the court is proper though it has no effect on the final order of the court and as such should not have been a subject of an appeal, citing ARULEGA V. BSCSC (2002) FWLR (PT. 123) 255.
On the second issue which is whether the trial judge correctly evaluated the evidence before it, the appellant submitted that the trial judge did not properly evaluate the evidence and failed to make proper findings. The cases of MAIYAKE V. STATE (2008) 15 NWLR (PT. 1109) 173; LAGGA V. SARHUNA (2008) 16 NWLR (PT. 1114) 427; BASIL V. FAJEBE (2001) 11 NWLR (PT. 725) 592.
It was contended that the learned trial judge failed to consider the evidence of some of the witnesses such as the DW2, Sunday Okechukwu Obiora who was the son of late Obiora Okonkwo Eli an uncle to the father of the appellants; the DW3 Johnson Okafor who testified about customary arbitration by both Okperi Village and Amikpo people; the court did not believe or disbelieve the evidence of the DW4, Emmanuel Okeke, but merely stated that his evidence should be taken with a pinch of salt. It was contended further that the court did not analyze the relevant part of the evidence of the PW1 and did not believe or disbelieve the witness.
The learned Counsel argued also that the evidence of the PW2, Ozo Nwogbo Okafor, a member of Ozo Awka Society who testified on the customary arbitration by the society but failed to tender the written proceedings and verdict of the society was heavily relied upon by the trial court to give judgment in favour of the respondent.
It was then contended that if the totality of the evidence is considered, the appellants will have a better case than the respondent because the case of the respondent that the compound of Nwogbo Okonkwo Eli was shared into two between Aniekwe Nwogbo, the father of the appellants, and Nweke Nwogbo, the respondent’s late husband was supported by only the evidence of the respondent while the evidence of the PW2 and PW3 who are strangers did not relate to the ownership of the land in dispute.
The case of the respondent as contended by learned Counsel being that the compound of Nwogbo Okonkwo Eli was partitioned and that the land in dispute is her husband’s share, the onus of proving the sharing and partitioning rested on the respondent as required by Section 135 Evidence Act and held in United Bank for Africa Plc v. Jargaba (2007) 5 SCNJ 127. The respondent should have called at least one member of the family to say that the land in dispute was her husband’s share of the land of Nwogbo Okonkwo Eli as the partition cannot be proved by PW2 and PW3 who were strangers.
Counsel urged this court to allow this appeal, set aside the judgment of the trial court, dismiss the claim of the respondent and allow the Counterclaim of the appellants.
In his response to the second issue, the respondent argued that the evidence of the DW2 which was contradictory to that of DW1 on material issues was of no moment to the case and could not have affected the decision of the court. It was contended also that the DW3 whose evidence contradicted those of other defence witnesses and the plan of the (defendants) appellants is not a material witness.
It was contended that the trial court correctly evaluated the evidence of DW1 and DW4 and rightly concluded that the evidence of DW1 should be taken with a pinch of salt while the mere fact of not using the word I believe or I do not believe a witness should not be enough reason to vitiate the judgment of court when no miscarriage of justice has thereby been occasioned.
On the duty of appraising the evidence given in a case, the learned Counsel cited MINI LODGE LIMITED V. NGEI (2010) ALL FWLR (PT. 506) and submitted that it was that of the trial court which has, in this case, properly appraised the evidence before it and arrived at the correct decision.
On the evidence of PW2 and PW3, it was Counsel’s contention that being non-members of the same family with the appellants does not render their evidence inadmissible while the fact that the DW1, DW2, DW3 and DW4 are from Okperi Village Amikwo does not give them an edge as the court is only concerned with the quality of evidence of the witnesses.
It was submitted that the appellants who made a Counterclaim in their pleadings failed to establish the Counterclaim by credible evidence as pleadings cannot be substituted for evidence, citing FEDERAL CAPITAL DEVELOPMENT AUTHORITY V. NAIBI (1990) 3 NWLR (PT. 138) 270; HUTFUL V. BINEY (1971) 1 ANLR 268, and IMANA V. ROBINSON (1974) 3-4 SC 1. It was also submitted that the appellate court has the power to re-evaluate evidence adduced at the trial, but where such a re-evaluation does not affect the trial court’s findings, the appellate court will not disturb the findings of the trial court.
This court was urged to dismiss this appeal and uphold the judgment of the trial court.
At the hearing of the appeal, the learned Counsel for the parties adopted their respective brief of argument and impressed upon court to grant the prayers sought therein.
The contention of the appellants in their first issue is that the finding of the learned trial judge quoted as forming that issue is a question of disinheritance which does not arise and as such the finding was uncalled for and the basis therefore was faulty.
Let me commence my consideration of this issue by stating again that the claim of the respondent as plaintiff is in respect of a piece or parcel of land at Amikwo Village, Awka while the appellants as defendants filed a Counterclaim in respect of that same piece or parcel of land “subject-matter of this Suit”.
In paragraphs 12 and 15 of the Amended Statement of claim, the respondent had averred that;
“12. The plaintiff inherited all properties belonging to her husband after his death. Under native law and custom of Awka the wife of a deceased husband inherits all properties belonging to the husband where she has no male issue by him and also where she has a male child after his death.
15. The plaintiff aver (sic) that the Defendants have seized all lands belonging to 1st Defendant and her (sic) husband of the plaintiff jointly which the plaintiff is entitled to on the death of her husband and have refused to allow her to share in the land and have sold some of them”.
In their Amended Statement of Defence the appellants pleaded thus in paragraphs 16 and 19;
“16. The defendants state that under Awka native law and custom , a married woman without a male issue cannot contest title to land of his (sic) late husband with the male member(s) of her late husband’s family. Moreso when the defendants’ father inherited the present land in dispute and has before this time even further asserted ownership by planting economic trees thereon, to wit; coconut, banana, pears, orange, avocado etc.
19. The defendants plead the custom of Awka people that the first son of a man inherits his “Ngwulu” compound”.
In his testimony on pages 112- 119 of the record, Onyibor Aniekwe, the 1st appellant stated as follows:-
“My father Aniekwe Nwogbo owns No. 19 Ogbuagu Lane Amikwo Awka My father inherited this No. 19, Ogbuagu Lane Amikwo Awka from his own father (page 112)…. The plaintiff has 6 female children without a single male. I know Awka custom in relation to inheritance over lands. A woman without a male issue in Awka has no right of inheritance to any land except the one she purchased with her money… I know the Umuogbuagu family of Amikwo which is our immediate family. The immediate family also looked into this matter before it was reported to Amakwo Akamanese meeting. It was also my father that took this matter to our immediate family for deliberation. The immediate family said that since my father was the 1st son of Nwogbo Okonkwo Eli that he is the person entitled to the entire compound”.
The learned trial judge’s finding in his judgment at page 156 (or 113) of the record that “the evidence of the DW1 that he is the person entitled to the whole of No. 19 Ogbuagu Lane to the exclusion of the plaintiff over her husband’s property is untenable as it is contrary to public policy and offends the rule of natural justice” is the gravemen of the appellants’ first issue with the contention that the question of disinheritance does not arise and therefore no basis exists for the finding.
I have gone into the pleadings and evidence of the parties which demonstrate beyond any equivocation that the parties did not only plead the custom relating to inheritance and disinheritance, there is also evidence in that respect on record.
It is therefore not correct as argued by the appellants that the finding was at large or not based on the issues raised by the parties. I am of the strong view from the foregoing pleadings and evidence that the finding is quite profound and resounding having been based on the pleadings and evidence of the parties.
An appellate court will not interfere with a finding of fact made by the trial court unless it is shown that such finding of fact does not derive from the evidence before that court or is not related thereto. See OGUNDULE V. CHIEF OLABODE (1973) 2 SC 71; BALOGUN V. AKANNI (1988) 1 NWLR (PT. 70) 301.
This issue is resolved against the appellants.
The appellants have by the second issue complained about evaluation of evidence by the trial judge and have in essence contended that the learned judge did not properly evaluate the evidence before the court and failed to make proper findings of fact therefrom.
From the judicial decisions of our superior courts, it is now trite that the evaluation of the evidence adduced at the trial and the ascription of probative value thereto are primarily the functions of the trial court that saw the witnesses, heard their testimony and observed their demeanour. Where it is shown from the record that the trial court has satisfactorily carried out these functions, an appellate court that has not had the privilege available to the trial court will not embark on an evaluation or reevaluation of the same evidence only for the purpose of substituting its own views for those of the trial court. See FAGBENRO V. AROBADI (2006) 7 NWLR (PT. 978) 174; SHA V. KWAN (2000) 5 SC 178; OJOKOLOBO V. ALAMU (1998) 9 NWLR (PT. 565) 226.

The proper approach of the court to evaluation of evidence in civil cases is for the court to put the evidence of the parties on an imaginary scale, weigh one against the other and then decide upon preponderance of credible evidence which one weighs more having regard to whether the evidence is admissible, whether it is relevant, whether it is credible, and whether it is more probable than that of the other party. See MOGAJI V. ODOFIN (1978) 4 SC 91; WOLUCHEM V. GUDI (1981) 5 SC 291; LAWRENCE NWANKPU V. EWULU (1995) 7 NWLR (PT.407) 269.
In the instant case, the record of appeal shows that the learned trial judge extensively reviewed and assessed the evidence of the witnesses and gave value to the evidence before making the findings thereon and based on this evaluation, came to the conclusion in the judgment. Having effectively evaluated the evidence, I do not find any basis for a reevaluation of the same evidence.
I resolve this issue also against the appellants.
The net result from all I have said so far is that this appeal is devoid of any merit and it is dismissed. I uphold the judgment of the trial court.
I award N30,000.00 costs in favour of the respondent.

JOHN INYANG OKORO, J.C.A: I read before now the lead judgment of my learned brother, Isaiah O. Akeju, JCA for which I am in total agreement that this appeal is unmeritorious and ought to be dismissed. For the reasons adumbrated in the lead judgment and the conclusion therein which I adopt as mine, I also dismiss this appeal. I abide by all the consequential orders made therein, that relating to costs, inclusive.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I have read the lead judgment delivered by learned brother, ISAIAH OLUFEMI AKEJU, JCA, and I am totally in agreement with his reasoning and conclusions.
I adopt the judgment as mine and I too therefore dismiss the appeal. I abide by all the consequential orders made therein, including the order relating to costs.

Appearances

Emmanuel Achukwu with Jide OkongwuFor Appellant

AND

Johnson ObuzorFor Respondent