ROWLAND OSUJI v. JOHN OSUJI & ORS
(2019)LCN/12650(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2019
CA/OW/45/2017
RATIO
EVIDENCE: SECTION 39, EVIDENCE ACT
“Now Section 39 of the Evidence Act provides:-
39. Statements, whether written or oral of facts in issue or relevant facts made by a person-
(a) who is dead;
(b) who cannot be found;
(c) who has become incapable of giving evidence; or
(d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 40 to 50.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
ROWLAND OSUJI Appellant(s)
AND
1. JOHN OSUJI
2. GODFREY OSUJI
3. GABRIEL OGUAMANAM Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Imo State High Court, Owerri Judicial Division, Coram: U. D. Ogwurike, J., delivered on 25th October, 2013 in Suit No. HOW/467/2000, against the Appellant and in favour of the Respondents, hence this appeal.
The Appellant, 1st and 2nd Respondents are brothers of full blood. The Appellant is the eldest and family head. Their father Osuji died in 1960 and the Appellant as the first son inherited the homestead traditionally called ‘ALA ISHI OBI’ in accordance with the custom and tradition of the family or home of the parties.
By tradition the ‘ALA ISHI OBI’ devolved on the Appellant being the first son at the death of their father Osuji in 1960.
Both the Appellant and 1st Respondent claimed that each one of them built a house on the ‘Ala Ishi Obi’ and their dispute resulted in Suit No. HOW/467/2000 which has culminated in this appeal.
In paragraph 28 of the Statement of Claim (Page 9 of the Record of Appeal), the Appellant as Plaintiff claimed as follows:-
The Plaintiff has by this wanton act of the 1st and 3rd Defendants suffered loss, damage and hardship, wherefore the Plaintiff claims:
A. Against the 1st and 2nd Defendants? Declaration that the Plaintiff alone built and is the exclusive owner of his house and homestead situated at Aboha Ohii, and is entitled to the right of occupancy to the entire compound comprising his said homestead.
B. Against the 1st and 3rd Defendants jointly and severally;
(i) One Hundred and Ten Thousand, Five Hundred Naira (N110,500.00) being Special Damages for the items converted and damaged;
(ii) Eight Hundred and Eighty-Nine Thousand, Five Hundred Naira (N889,500.00) General Damages for trespass to chattel and wrongful ejection.
The 1st Respondent on the other hand counter claimed in his Statement of Defense at paragraph 29 (Page 20 of the Record of Appeal) as follows:-
The Defendants hereby plead Building Plan/Drawing of the said 1st Defendants house at Osuji?s compound, Aboha Ohii, various receipts of payments in respect of the said house, affidavit of Madam Catherine Osuji, correspondences and Judgments of various Panels and offer relevant documents relating to and touching on this 1st Defendants house, the subject matter of this suit.
Issues were joined and at the end of trial the lower Court gave judgment as earlier indicated.
Peeved by the judgment of the lower Court, the Appellant filed an appeal vide amended Notice of Appeal deemed properly filed and served on 5th October, 2017, containing seven (7) grounds which shorn of their particulars are as follows:-
GROUND ONE: OMNIBUS GROUND
The judgment of the lower Court is most unwarranted, unreasonable and cannot at all be supported having regard to the weight of evidence led at the trial.
GROUND TWO: ERROR OF LAW
The Learned Trial Judge erred in law when she admitted in evidence a document that is totally inadmissible in law and relied on same to reach a perverse decision that has occasioned a miscarriage of justice.
GROUND THREE: ERROR OF LAW
The Learned Trial Judge erred in law when she admitted evidence which by the pleadings are totally inadmissible and relied on same to reach a decision that is perverse and has occasioned a miscarriage of justice.
GROUND FOUR: ERROR OF LAW
The Learned Trial Judge erred in law by the improper evaluation of the evidence led by Appellant and the wrong inference she drew from the said evidence, which error has led to a perverse conclusion that Appellant did not prove that he built the house in dispute.
GROUND FIVE: MISDIRECTION
The Learned Trial Judge misdirected herself on the evidence led before her in coming to the conclusion that there were material contradictions in the evidence led by the Appellant, when indeed there was none.
GROUND SIX: ERROR OF LAW
The Learned trial Judge erred in law when she granted the reliefs sought in the counter claim of the 1st Respondent, when there was no valid evidence in proof of same, and in ignorance of the evidence of the incapability of 1st Respondent to build a house before 1981.
GROUND SEVEN: ERROR OF LAW:
The Learned Trial Judge erred in law when she admitted as Exhibits L and M documents purporting to the arbitration decisions in this dispute between the parties, when those documents are totally inadmissible in law.
The Appellant then sought as reliefs:
1. An order allowing this appeal and setting aside the judgment of the lower Court appealed against.
2. An order granting to the Appellant the reliefs sought in his Statement of Claim.
From these seven (7) grounds of appeal, the Appellant distilled three (3) issues for determination which were adopted by the Respondents in their Respondents’ Brief of Argument at page 8.
On 6/11/2018 when this appeal came up before us for hearing C. C. Achionye Esq., learned Appellant?s Counsel adopted the Appellant?s Brief of Argument filed on 10/10/2017 and Reply Brief of Argument filed on 13/11/2017 (both briefs settled by C. B. Nworka Esq.) and then urged us to allow the appeal, set aside the judgment of the lower Court and in its stead enter judgment as claimed in the Statement of Claim of the Appellant.
A. C. Mezu Esq. who settled the Respondents’ brief filed on 31/10/2017 and who appeared for the Respondents, adopted his brief and urged us to dismiss the appeal and affirm the judgment of the lower Court.
These issues are as follows:-
1. Whether the admission of Exhibit K ‘the affidavit of Mrs. Catherine Osuji’ and other unpleaded and inadmissible evidence by the Learned Trial Judge did not render the trial Court’s judgment perverse (Derived from Grounds 2, 3 and 7 of the Grounds of Appeal).
2. Whether the trial Court properly evaluated the evidence led by the Appellant and drew the proper inference thereupon (Derived from Grounds 1 and 5 of the Grounds of Appeal).
3. Whether the judgment of the trial Court granting the counter claim the 1st Respondent is not perverse (Derived from Grounds 4 and 6 of the Grounds of Appeal).
Now to the issues.
ISSUE 1
Chidi B. Nworka, Esq., learned Appellant’s Counsel related the circumstance of Exhibit ‘K’ (an affidavit deposed to by Mrs. Catherine Osuji the mother of the Appellant, 1st and 2nd Respondents) which was made during the pendency of the suit and submitted that the admission of Exhibit ‘K’ and the reliance thereon by the lower Court was wrongful as it offended against the provisions of Section 46 of the Evidence Act 2011 (as amended). He relied on OSENI VS. DAWODU (1994) 4 S.C.N.J (Pt. 2) 197 at 209 and UGWU VS. ARARUME (2007) 6 S.C.N.J. 316 at 366.
Learned Counsel submitted further that the admissibility of Exhibit ‘K’ was in breach of Sections 39 (a) and 46 (1) (b) of the Evidence Act 2011 (as amended). He quoted the provisions of Section 2 of the Evidence Act 2011 (as amended) and submitted that by the authority of OSENI VS. DAWODU (Supra) and UGWU VS. ARARUME (Supra) parties, by sheer collusion and for their mutually anticipated “belief”, cannot give consent to the admission of a document which the Evidence Act clearly provides is inadmissible.
Learned Appellant’s Counsel submitted that by the provision of Section 83 (1) and (3) of Evidence Act 2011 (as amended) Exhibit ‘K’ should be expunged from the record and no reliance be placed thereon. He urged us to consider the fact of the hostility which erupted between the Appellant and his siblings and their mother especially that the hostility was alleged to have been generated by the wife of the Appellant against his mother.
He referred the Court to the deposition of the 2nd Respondent at page 129 of the Record of Appeal and also page 38 line 21, page 39 lines 1 and 2 of the Record of Appeal.
Furthermore, Learned Appellant’s Counsel referred to Section 83 (3) and Section 91 and IZE – IYAMU VS. ALONGE (2007) ALL FWLR (PT. 371) 1570 at 1592 – 1593 and submitted that the mother of the parties was an interested party in the outcome of the dispute at the time she made Exhibit ‘K’ which fact rendered the document totally inadmissible under Section 83 (3) of the Evidence Act 2011 (as amended).
Learned Appellant’s Counsel drew our attention to Exhibits ‘L’ and ‘M’ and submitted that they suffer the same fate as Exhibit ‘K’ and urged us to hold that these Exhibits were inadmissible as they either offended the provision of Section 83 (3) or Sections 37 and 38 of the Evidence Act 2011 (as amended) relying on OJO VS. GHARORO (2006) ALL FWLR (PT. 316) 197 at 222 – 223. He further urged us to expunge Exhibit ‘L’ and ‘M’ and the deposition of DW2 from the record.
In respect to the pleadings of the Respondents and their pieces of evidence, Learned Appellant?s Counsel submitted that the evidence adduced was at variance with the pleadings which should not have been admissible by the lower Court, relying on ALLIED BANK VS. AKUBUEZE (1997) 6 S.C.N.J. 116 at 132. He cited the evidence of the 1st Respondent (Page 105 – 109 of the Record) and contended that out of the 46 paragraphs of his deposition on oath only 14 paragraphs contain evidence in which facts were pleaded. The rest of them especially paragraphs 7 – 23; 29 – 35; 41 – 43 were replete with facts that either contradicted what was in fact pleaded or were not pleaded at all. He then urged us to apply the decision of the Supreme Court in ADESANYA VS. OTUEWU (1993) 1 S.C.N.J. 77 at 97 to reject the evidence of the 1st Respondent at the trial Court. He also submitted that the evidence of the 2nd Respondent at the trial Court did not amount to anything legally admissible and should be rejected, as it was not sworn to before a Commissioner for oath or a person authorized to take it, citing the case of CHIDUBEM VS. EKENNA (2009) ALL FWLR (Pt. 455) 1672 at 1706 and 1708 in support.
As to the evidence of DW3, Learned Appellant’s Counsel submitted that DW3 did not sign his statement before a Commissioner for oath, which renders it inadmissible relying on SHITTU VS. FASHAWE (2005) 7 S.C.N.J. 337 at 352. He then urged us to disregard the deposition of the DWs relying on AGU VS. OGBE (2006) 5 S.C.N.J. 314 at 341 and to resolve issue 1 in favour of the Appellant.
In his Respondents’ Brief of Argument, the Learned Respondents’ Counsel contended that at the time Exhibit ‘K’ was made, the Appellant was aware of it but did not challenge or counter or controvert same and therefore he cannot validly challenge it now by any other method except by counter affidavit; that the averments in Exhibit ‘K’ are deemed admitted by the Appellant, relying on:-
– IKONO L.G.C. VS. DE BEACON FINANCE AND SECURITY LTD. (2002) 4 NWLR (PT. 756) 128 Ratio 6 at p. 142 Para ‘E – G’
– UZOUKWU VS. EZEONU 11 (1991) 6 NWLR (PT. 200) 708
– NWOSU VS. ISESA (1990) 2 NWLR (PT. 106) 773
He again submitted that the failure of the Respondents to fulfill the requirements of the law in respect of Exhibit ‘K’ is not fatal to the case of the Respondents relying on IBORI VS. AGBI (2004) ALL FWLR (PT. 202). He also submitted that oral evidence cannot be used to contradict the contents of a document; relying on OGUNDELE VS. AGIRI (2009) 40 NSCQR 427 at 449 – 450; Section 132 (1) Evidence Act (2010) (sic) 2011 (as amended) and ANYANWU VS. UZOWUAKA (2009) 40 NSCQR 1 at 221. He further submitted that the protest of the Appellant against Exhibit ‘K’ was grounded on dishonesty which he failed to prove on the balance of probabilities, relying on IMONIKHE VS. UNITY BANK PLC., (2001) 40 (Pt. 2) NSCQR 554 at 573 and that the allegation of fraud was never raised at the trial Court but only before this Court which the Appellant cannot do, relying on NIG. ARAB BANK LTD. VS. FELLY KEME LTD. (1005) (sic) 4 NWLR (Pt. 387) 100 at 106 Ratio 10 and CHUKUJEKWU VS. OLALERE (1992) NWLR (Pt. 221) 86 at 93 para A Ratio 7 (sic) and that fraud and misrepresentation are crimes/quasi crimes which must be proved beyond reasonable doubt, relying on NWAFORNSO VS. TAIBU (1992) 1 NWLR (PT. 219) 619.
In response to the challenge of Exhibit ‘M’ by the Appellant, Counsel traced the history of the Exhibits and submitted that the submissions of the Appellant’s Counsel were based on technicalities which should be rejected based on the authority of DEBS VS. CENICO LTD. (1986) 3 NWLR (PT. 32) 846 Ratio 8 and LEWIS & PEAT (N.R.I.) LTD. VS. AKHIMIEN (1976) 6 S.C 157 and added that the case of CHIDUBEM VS. EKENNA (2009) cited by the Appellant?s Counsel does not apply to this case.
Referring to the testimony of DW3, Counsel submitted that the witness gave answers based on the questions put to him in Court, which should not be misconstrued in order to mislead the Court but to aid the Court in arriving at a just decision. He relied on FAWEHINMI VS. NBA (NON) (1989) 2 NWLR (Pt. 105) 494 S.C; OKOLO VS. UBN LTD. (1998) 2 NWLR (PT. 539) 618 C.A and ADEBISI VS. ODUKOYA (1997) 11 NWLR (Pt. 527) 83 C.A.
Learned Respondents’ Counsel reproduced the evidence of DW3 under cross examination and submitted that the deposition of DW3 complies with the provisions of the Evidence Act and urged us to discountenance the argument of the Learned Appellant’s Counsel regarding the evidence of DW3.
ISSUE 2
On evaluation of the evidence led by the Appellant and the proper inference drawn thereon by the lower Court, Learned Appellant?s Counsel referred to Exhibits ‘A’, ‘B’, ‘C1’, ‘C2’ and ‘C3’, remarking on the cordial relationship between a mother and a son (Mrs. Catherine Osuji and Rowland, the Appellant in this case) and urged this Court to hold that the veracity therein contained has never been controverted in anyway. He then submitted that the Appellant in fact built the house, the subject matter in dispute in this case.
He submitted further that the Exhibits ‘A’ – ‘C’ have satisfied the provisions of Sections 155 and 157 of the Evidence Act 2011 (as amended) relying on EGESIMBA VS. ONUZURUIKE (2002) 9 SCNJ 46 at 62. Learned Appellant’s Counsel submitted that if there are any discrepancies in the evidence of the Appellant’s witnesses at the lower Court, it was not any material discrepancies that would vitiate the testimonies of the witnesses.
He urged us to hold that the evidence of the witnesses of the Appellant at the lower Court is believable and should be accepted by the Court, which the lower Court failed to do in this case. He relied on OSUNDU CO. LTD. VS. AKHIGBE (1999) 7 SCNJ 1 at 16. He again urged us to consider the custom of the parties that the ‘Ala Isi Obi’ was inherited by the Appellant and could not have been used by the 1st Respondent to build the house in dispute. He referred the Court to pages 22; 93 – 94 and 101 of the Record of Appeal in respect to the prevailing culture in Igbo land. He submitted that the Respondents in their pleadings in paragraphs 6 and 7 of the Statement of Defence supported the case of the Appellant at the lower Court. He urged us to discountenance the story of the Respondents that the 1st Respondent purchased land from people and built his house outside the family compound of their father Osuji.
He urged us to hold that there were no inconsistencies in the case of the Appellant, relying on the case of OGOLA VS. THE STATE (1991) 3 SCNJ 61 at 72, ASANYA VS. THE STATE (1991) 4 SCNJ 1 at 10 and ODOM VS. P.D.P (2013) ALL FWLR (Pt. 698) 972 at 991 (C.A.)
Learned Appellant’s Counsel reproduced a portion of the proceedings dealing with the answers given by the appellant under cross examination at page 71 line 10-13 and the remark of the learned trial judge thereon at page 246 line 13-20 and submitted that the learned trial judge put a slant on the evidence of the appellant by introducing the word ‘before’ thereby altering the entire evidence of the appellant and so arriving at the decision that the evidence of the appellant at the lower court was full of contradiction and inconsistencies. He again referred to page 246 lines 13-15 of the record to demonstrate that the lower Court had been persistent in wrongfully evaluating the evidence of the appellant thereby altering the impact of his testimony and hence arriving at wrong conclusion. He relied on LADEJOBI VS. OGUNTAYO (2004) 7 SCNJ 298 at 313.
He contended that the Learned Trial Judge made heavy weather of the alleged contradiction in the evidence of PW4 that the house was built ‘around’ the old mud house while the parties still lived in it, relying on same to conclude that the house was not built in the ‘Ala Ishi Obi’ of Osuji family which customarily belongs to the Appellant against the backdrop of the evidence that the ‘Ala Ishi Obi’ comprises the house and the compound of the founding father. The Learned Appellant’s Counsel again stated that the Trial Court treated the evidence of PW6 out of con referring to page 246 lines 5 – 10 and pages 153 – 155 of the Record of Appeal and then submitted that the Learned Trial Judge failed in her duty to properly evaluate the evidence placed before her. He relied on NAGEBU CO. LTD. VS. UNITY BANK PLC, (2013) ALL NWLR (PT. 698) 871 at 900 – 902. He then urged us to resolve this issue in favour of the Appellant.
The Learned Respondents’ Counsel in response to this issue conceded that the primary duty of a Trial Court is to evaluate all the evidence before it before coming to a conclusion as to the preponderance of the evidence addressed by the parties as held in the case ofEZEMONYE OKWARA VS. DOMINIC OKWARA (1997) 1 NWLR (PT. 527) 160 Ratio 3.
However he submitted that the Court cannot shut its eyes to the truth unless there is reason to do so, referring to BADEJO VS FED. MINISTRY OF EDUCATION (1996) 8 NWLR (PT. 464) 15 Ratio 9 and A – G. BENDEL STATE VS. A – G FEDERATION (1982) 3 NCLR (1981) 10 SC 1 at 59.
Learned Respondents’ Counsel then conceded that even though the Learned Trial Judge analyzed Exhibits ‘A’, ‘B’, ‘C’, ‘C1’, ‘C4’ in her judgment she did not dwell much on them. He added that the trial Court in this case ‘shut its eyes to the purported contents of Exhibits A – C4 that the Appellant actually built and owns the house in dispute, it is because in its wisdom, the trial Court realized that the justice of the case does not lie on the content of the letters but on the testimony of those who said they actually took part in erecting the house in dispute. Learned Respondents’ Counsel submitted that the witnesses of the Appellant were not sure whether the house they built was standing on the old compound of Osuji or away from it and that they only came to Court to give evidence because the Appellant was a member of their Church. Again submitted the Learned Respondents’ Counsel, Exhibits ‘A’, ‘C4′ were mere letters exchanged between the Appellant and his mother in respect of a house the Appellant built that the Exhibits were not helpful to the Court in arriving at its decision.
He contended that the evidence of the witnesses of the Appellant were more important than the Exhibits A – C4 and then submitted that the judgment of the Court was not perverse relying on the STATE VS. AJIE (2000) 7 SC (PT. 1) 24; IGE VS. ADEGBOLA (1998) 10 NWLR (PT. 571); AGOBMEJI VS. BAKARE (1998) 9 NWLR (PT. 564) 1 SC. It is the contention of the Learned Respondents’. Counsel that ‘the Learned Trial Judge in the instant case made a thorough evaluation of the relevant ISSUES that arose from the evidence before it and in its evaluation, the trial Court rightly observed some material contradictions in the testimony of the Appellant and his witnesses especially as regards whether the house in dispute was built in the same spot where the Appellant’s father’s mud house was or away from it.
He then quoted a portion of the judgment of the lower Court and submitted that the contradictions were so fundamental that no Court or Tribunal would act on them.
In contradistinction, Learned Counsel submitted that the evidence of the Respondents and their witnesses was unassailable and so was believed and acted upon by the trial Court. He relied on Exhibit ‘K’ and submitted that oral evidence is inadmissible to contradict a document, relying on OGUNDELE VS. AGIRI (Supra). He referred to some part of the evidence of the Appellant and submitted that the Appellant gave evidence which contradicted Exhibit ‘C2’.
Responding to the submission of the Learned Appellant’s Counsel on Exhibit ‘L’ that it was not dated, Learned Respondents’ Counsel pointed out same was dated 8/2/1998 and that the deposition of Mark Azu does not constitute a hearsay evidence within the meaning of Sections 37 and 38 of the Evidence Act 2011 (as amended) and relying on Section 1 of the Evidence Act he submitted that same supports the evidence of Mark Azu. He then urged us to resolve issue 2 in favour of the Respondents.
ISSUE 3
Learned Appellant’s Counsel submitted that a counter claim is a properly constituted suit which must succeed on its own strength and not on the weakness of the defence. He then contended that the trial Court set this standard only in respect of the main suit of the Appellant but did not do the same regarding the counter claim of the 1st Respondent. He submitted that there was no evidence adduced by the 1st Respondent in proof of his counter claim to warrant the judgment by the trial Court in his favour. Again, it was submitted that even if the inadmissible evidence adduced by the Respondents was evaluated for whatever it was worth, same cannot match the evidence of the Appellant. He referred to the evidence of DW4 at Pages 127 – 129 of the Record and submitted that the evidence is not worth anything to rely upon. He submitted that the same fate befalls the evidence of DW2. He referred to AGBO VS. THE STATE(2006) 1 SCNJ 332 at 352 and submitted that there was no credibility that can be attached to the evidence of the Respondents. He also submitted that the lower Court did not evaluate the evidence put before it hence it arrived at a perverse decision. He referred to MINI LODGE LTD. VS. NGEI (2010) ALL FWLR (PT. 506) 1806 at 1821 (SC) AND OWOR VS. CHRISTOPHER (2010) ALL FWLR (PT 511) 962 at 992 (CA).
He then invited this Court to re-evaluate the evidence of the parties in this case, because if the Court below had properly evaluated the evidence, the scale of justice would have tilted to the side of the Appellant.
Submitting further, the Learned Appellant’s Counsel stated that as at the time the house in dispute was built the 1st Respondent was struggling with a small income and so could not afford to build the house in dispute. He referred to page 14 paragraph 12 of the Record of Appeal, and pages 23, 28, 63 and the case of OFORLETE VS. THE STATE (2000) 7 SCNJ 169 at 179 and submitted that the Respondents failed woefully to prove their counter claim. Regarding the evidence of the 2nd Respondent this Court is invited to consider that he was a school child at the time the Appellant was building the house in dispute and so could not be in a position to give truthful evidence at the trial, relying on C & C LTD. VS. OKHAI (2003) 12 SCNJ 33 at 43; FATUNBI VS. OLANLOYE (2004) 6 SCNJ 34 at 46 and EZEMBA VS. IBENEME (2004) 7 SCNJ 136 at 152 – 153 and urged us to take the evidence of 2nd Respondent with caution, and to rely on WILSON VS. OSHIN (2000) 6 SCNJ 371 at 396 and re-evaluate the evidence adduced before the lower Court in order to arrive at a just decision, and then allow the appeal and set aside the decision of the lower Court and grant the reliefs brought by the Appellant at the lower Court.
Learned Respondents’ Counsel conceded to the status of a counter claim being akin to that of a main claim. He then submitted that the 1st Respondent proved his counter claim hence the lower Court granted his reliefs. He referred to the evidence of DWs and submitted that the trial Court rightly evaluated the evidence of the parties and preferred that of the Respondents to that of the Appellant. He submitted that facts admitted need not be proved, alluding to Exhibit ?K? as having been admitted since it was not countered by a counter affidavit. He relied on CONFIDENCE INSURANCE LTD. VS. TRUSTEES OF O.S.C.E. (1999) 2 NWLR (PT. 591) 373 Ratio 13.
It was the contention of the Learned Respondents’ Counsel that the Appellant forcefully dispossessed the 1st Respondent of his house and is using the Court to legalize his action and so he should be stopped from doing so. He finally submitted that the 1st Respondent has suffered loss and so should be awarded the reliefs sought by affirming the decision of the lower Court and then dismiss this appeal with cost.
In his Reply Brief, Learned Appellant’s Counsel submitted that the submissions of the Respondents’ Counsel in respect to Exhibit ‘K’ are ridiculous and do not at all represent the state of the law because when a document is declared inadmissible by the Evidence Act it is totally void and useless as far as the legal proceeding in which it is sought to be used is concerned and cannot vest a night or on obligation on the parties to the proceeding. Therefore the Appellant has no obligation to counter Exhibit ‘K’ or resort to the proper method of challenging Exhibit ‘K’. He referred to OBEM VS. C.O.P. (2013) ALL FWLR (PT. 688) 940 at 977 (CA).
Again, he submitted that a Court of law cannot be called to admit evidence in respect of facts not pleaded. He referred to OLUSANYA VS. OSINLEYE (2013) ALL FWLR (PT. 693) 1930 at 1947 (SC).
He also submitted that a party cannot impress upon a Court to go outside the pleadings to fish for facts and evidence, referring to LIPEDE VS. SONEKAN (1995) 1 SCNJ 184 at 197 ? 198.
Finally, Learned Appellant’s Counsel submitted that the major complaint in this appeal is the admission of and reliance placed on totally inadmissible evidence by the trial Court. He referred to KANO VS. OYELAKIN (1993) 3 SCNJ 65 at 83 and urged us to set aside the judgment of the trial Court, allow the appeal and enter judgment for the Appellant.
RESOLUTION OF THE ISSUES
Before I go into the consideration of the issues, I need to state that on 6th November, 2018, when this appeal came up for hearing we were informed by counsel that there were exhibits that were not yet transmitted to this Court. We directed counsel to do the needful by ensuring that the exhibits were transmitted. However, the exhibits were not transmitted. So I had to rely on the copies contained in the record of proceeding. Also the respondents’ counsel on pages 7 and 8 of his brief had indicated that Exhibits E, F, F1-F14,G, H, H1 and H2 do not form part of the record of appeal while Exhibit J was excluded from the record.
Therefore I shall consider only the copies of the exhibits transmitted which form part of the record of appeal.
I shall now deal with the issues.
ISSUE 1 (Grounds 2, 3 & 7)
Issue 1 is an attack on the admissibility of Exhibit K which is an affidavit deposed to by Mrs. Catherine Osuji, the mother of the Appellant, 1st and 2nd Respondents. It is also an attack on some other pieces of evidence said to be unpleaded and therefore inadmissible. More worrisome to the Appellant is Exhibit K due to the circumstances under which it was procured. From the evidence, this Exhibit was deposed to on 27th February, 2001 (page 117 of the Record), about 3 months after the institution of this Suit. Exhibit K was headed with the Court, the Suit Number, and the parties in the Suit. It seems to me very clear that the Exhibit K was made for the purpose of its being used in this proceeding. The averments therein contained were akin to answers to the averments in the Statement of Claim in this Suit. In short, it positively repudiated the claims of the Appellant against the Respondents in its entirety.
The complain of the Appellant vide his Counsel as canvassed in his Brief of Argument is that Exhibit K offends against the provisions of Section 46 (1) of the Evidence Act, 2011 (as amended), by not allowing the Appellant to cross examine the deponent as required by law. The second complain is that the Exhibit did not comply with the provisions of Section 83 (3) of the Evidence Act 2011 (as amended) and therefore totally inadmissible.
Now, Section 46 (1) of the Evidence Act 2011 (as amended) provides thus:
46. (1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party, provided that:-
(a) The proceeding was between the same parties or their representative in interest;
(b) The adverse party in the first proceeding had the right and opportunity to cross examine;
(c) The questions in issue were substantially the same in the first as in the second proceeding.
Now Section 39 of the Evidence Act provides:-
39. Statements, whether written or oral of facts in issue or relevant facts made by a person-
(a) who is dead;
(b) who cannot be found;
(c) who has become incapable of giving evidence; or
(d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Sections 40 to 50.
It is evident that Mrs. Catherine Osuji died some 3 years after deposing to Exhibit K. But the question is at the time she was making Exhibit K did the Appellant have the right and the opportunity to cross examine her? Was the Appellant given the opportunity to cross examine her? The answers to these questions are both in the negative.
It is clear that Exhibit K was tendered at the time Mrs. Catherine Osuji had died, bringing it under the purview of Section 39 (a) of the Act.
But let us consider Section 83 of the Evidence Act 2011 (as amended) which provides as follows:-
83. (1) —–
(a) ——–
(b)——
(2)—–
(a)—–
(b)—
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
It is in evidence before the lower Court that this suit was filed on the 10th November, 2000. Exhibit K was made on 27th February, 2001. At the time it was made there was already hostility between the wife of the Appellant and the mother of the Appellant on one hand and between the wife of the Appellant and the siblings of the Appellant on the other.
The mother of the Appellant had moved out of the house and was staying with the 2nd Respondent at the time of making Exhibit K. The exhibit was made during the pendency of the Suit No. HOW/467/2000. The mother of the Appellant had been in possession of Exhibits A, B, C, C1, C2, C3, and C4, which were made at the time the relationship between mother and son was very cordial. But now the entire relationship had gone sour. Mrs. Catherine had directed her son, the Appellant to divorce his wife but he would not heed that. And now she was fully aware of the pendency of the Suit. The question may now be asked, what was the purpose of making Exhibit K? The answer is not farfetched: To refute the fact that the Appellant sent money home for the construction of the building now the subject of dispute. With this scenario in mind, it is not difficult to say that Mrs. Catherine Osuji was very much an interested person in the outcome of the Suit. This therefore renders Exhibit K inadmissible under Section 83 (3) of the Evidence Act, 2011 (as amended). It is on record that the learned Appellant?s counsel had protested against the admission of Exhibit K to no avail.
I therefore hold, agreeing with the learned Appellant’s counsel that Exhibit K was admitted in error by the lower court. Same qualifies to be expunged from the record of this proceeding. Being backed up by the authority of the Supreme Court in OSENI & ORS. VS. DAWODU & ORS. (1994) LPELR-2795 (SC) and UGWU & ANOR. VS. ARARUME & ANR. (2007) LPELR-24345 (SC), I hereby expunge Exhibit Kfrom the record of the proceeding.
Consequently, I answer this issue in the positive, resolving same in favour of the Appellant and against the Respondents.
ISSUE 2 (GROUNDS 1 & 5)
This is an invitation by the Appellant on us to re-evaluate the evidence adduced before the lower Court by the appellant. The claim of the Appellant principally is anchored on declaration that he alone built the house in dispute and therefore is the exclusive owner of same hence he is entitled to a right of occupancy to the entire compound comprising the homestead inherited by him from his late father Osuji.
Under this issue, the Appellant is querying the evaluation of evidence carried out by the trial Judge.
The Appellant Counsel has submitted that had the learned trial Judge properly evaluated Exhibit ‘C’ dated 22/11/1977 together with the reply written by the mother of the Appellant he would have arrived at a different conclusion. He urged us to reconsider Exhibits A, B, C, C1, C2, C3, and C4.
Now with the exit of Exhibit ‘K’, the case of the Respondents, especially 1st Respondent and his witnesses appears clearly to have no foundation upon which to stand, more so that he counter claimed.
A more critical look at Exhibits A, B, C, C1 – C4 would reveal that the 1st Respondent was supervising the building for the Appellant who was sending money home from Maiduguri through one Daniel Chikezie PW6. The witnesses for the Appellant were positive about their roles in the construction of the building in dispute. These people, some of them over 90 years, and the events having taken over 30 years before they came to Court to testify, would definitely have slight differences as to details in their evidence.
The trial Court laid so much emphasis on the evidence of Daniel Chikezie that he did not know the amount of money he brought to the mother of the Appellant.
I think there is no contradiction in his evidence because he never said he saw the money and later gave a different story. He testified that the Appellant used to send money through him, by putting the money in an envelope together with the letter the Appellant used to write to his mother. And he never opened these letters before delivering same to the Appellant’s mother.
I agree with the learned Appellant’s Counsel that whatever minor discrepancies there were in the case of the Appellant, it was not fatal to his case. They were minor discrepancies.
Considering the averments of the Respondents especially in paragraph 6 of the Statement of Defense that he, his mother, and his elder sister used to contribute money to pay the Appellant’s school fees, I hold the firm view that the 1st Respondent could not have done that since the Appellant is his elder brother. The Appellant’s witnesses testified to the fact that at the time they were building the house in dispute, the 1st Respondent was a young man of not more than 14 years, while the second Respondent was a juvenile. This evidence is more probable.
The case of the Respondents is that within a period of 2 years, he had built the house in dispute, which is rather improbable.
I therefore resolve issue 2 in the negative, that is to say same is resolved in favour of the Appellant and against the Respondents.
ISSUE 3 (GROUNDS 4 and 6).
The 1st Respondent counter claimed and so he had the same burden of proof as the Appellant to prove his claims on the balance of probabilities and succeed on the strength of his case. In this case, the learned trial Judge applied the principle of law, rightly in my view, regarding the burden and standard of proof strictly in the case of the Appellant, but failed to do same in respect to the counter claim. The trial Court relied on Exhibit ‘K’ to grant the reliefs of the Respondents in their counter claims, which was based on inadmissible evidence as I have earlier demonstrated. Since Exhibit ‘K’ was inadmissible evidence and having expunged same from the proceedings, the foundation of the award of the counter claim has been knocked off.
I agree with the learned Appellant’s Counsel that the trial Court based its judgment on inadmissible evidence which cannot stand. Having considered the issues raised by both parties, I hold the view that issue 3 should be and is hereby resolved in favor of the Appellant and against the Respondents.
On the whole, the judgment of the lower Court is hereby set aside. The counter claim is hereby dismissed. The claim of the Appellant succeeds.
However, considering that both the Appellant and Respondents are brothers of full blood, only relief one of the claims of the Appellant is granted.
I make no order as to cost.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother IBRAHIM ALI ANDENYANGTSO JCA. I agree with his reasoning and conclusion. I hereby allow the Appeal and set aside the judgment of the Court below. The counter claim is hereby dismissed.
No order as to costs.
Appearances:
C.B. Nworka, Esq.For Appellant(s)
A.C. Mezu, Esq.For Respondent(s)
