UKOH & ANOR v. UKOH & ORS
(2020)LCN/15711(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, June 09, 2020
CA/J/214/2006
Before Our Lordships:
Ignatius IgweAgube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph EyoEkanem Justice of the Court of Appeal
Between
1. TAR UKOH 2. PAUL UKOH APPELANT(S)
And
1. TERHILE UKOH 2. MRS. JOSEPHINE UKOH 3. THE GOVERNOR OF BENUE STATE 4. THE ATTORNEY GENERAL OF BENUE STATE 5. THE PERMANENT SECRETARY BUREAU OF LAND AND SURVEY, MAKURDI RESPONDENT(S)
RATIO:
THE GROUND OF APPEAL THAT COMPLAINS OF AN ERROR IN LAW AND A MISDIRECTION IN FACT
On the effect of a ground of appeal that complains of an error in law and a misdirection in fact, the Supreme Court in Aigbobahi&Ors. v. Aifuwa (supra), (2006) LPELR-267(SC) at pages 10 – 11 of the E-Report, per Onnoghen, JSC (as he then was) said:
“In short, the position, in my humble view, is that once it ispossible to make sense out of a ground of appeal that complains both of error in law and misdirection in fact, the ground of appeal is valid, the defect in its form notwithstanding. The rationale behind this lies in the shift in emphasis from technical justice to substantial justice – from form to substance. In other words, though a ground of appeal that complains of an error in law and misdirection in fact may be inelegant in drafting and thereby defective in form, that defect alone is not sufficient to have it struck out provided the complains therein are clear – see pages 265 – 266 of Aderounmu v. Olowu (supra) per Ayoola, JSC.” ONYEKACHI AJA OTISI, J.C.A.
THE DUTY OF THE COURT OF LAW TO CONSIDER ALL THE ISSUES THAT HAVE BEEN JOINED BY PARTIES
A Court of law, whether of first instance or in its appellate jurisdiction, has a bounden duty to make findings and pronounce on all issues canvassed before it by the parties, which are material to the resolution of the matter submitted for adjudication by the parties; Honeywell Flour Mills Plc v. Ecobank (2018) LPELR-45127(SC); 7-Up Bottling Co. Ltd &Ors v. Abiola& Sons Bottling Co. Ltd (2001) LPELR-1(SC); A. G. Leventis (Nig) Plc v. Akpu (2007) LPELR-5(SC). In Okonji v Njokanma (1991) LPELR-2476(SC) at pages 27 – 28, (1991) 7 NWLR (Pt. 202) 131 at 150 the Supreme Court per Uwais JSC held as follows: –
“It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration ofjustice that every Court has a duty to hear, determine and resolve such questions.”
Parties are therefore entitled to hear from the Court on each issue they raise before it as failure to do so may result in a miscarriage of justice; Garba v. Mohammed &Ors (2016) LPELR-40612(SC); Dingyadi & Anor v. INEC &Ors (2010) LPELR-40142(SC). An exception to this would be when any aspect of the said issue is subsumed in an already considered issue. The said issue can then be taken as settled; Honeywell Flour Mills Plc v. Ecobank (supra); Blessing v FRN (2018) LPELR-44213(SC). ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE OF FACTS NOT PLEADED GOES TO NO ISSUE
It is also trite law, as rightly submitted by the Appellants’ Counsel, that evidence of facts not pleaded or contrary to the pleadings go to no issue; Ohiaeri& Anor v. Akabeze&Ors (1992) LPELR-2360(SC); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (1992) LPELR-2915(SC); Amodu v. Commandant, Police College Maiduguri & Anor (2009) LPELR-467(SC); Anyafulu&Ors v. Meka&Ors (2014) LPELR-22336(SC); Aminu &Ors v. Hassan &Ors (2014) LPELR-22008(SC); Akinbade& Anor v. Babatunde &Ors (2017) LPELR-43463(SC).Indeed, the Court must discountenance such evidence. ONYEKACHI AJA OTISI, J.C.A.
A MISCARRIGE OF JUSTICE IS A FAILURE OF JUSTICE
A miscarriage of justice is a failure of justice. It simply means that the Court has failed to do justice. This can arise when there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed, when outcome of legal proceedings is prejudicial or inconsistent with the substantiated rights of the party or when what is done is fundamentally not justice according to law; Aigbobahi v. Aifuwa (2006) LPELR-267(SC), (2006) 6 NWLR (PT. 976) 270 at 290 – 291; Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306; Oke v Mimiko (2013) LPELR-21368(SC) at pages 37 – 39; Nwankwoala v. Federal Republic of Nigeria (2018) LPELR-43891(SC). In the instant case, however, no miscarriage of justice was demonstrated by the Appellants. The resolution of the contention of the Appellants was subsumed in the findings and pronouncements of the trial Court. These findingsdemonstrated that the evidence adduced by the 2nd defendant was in line with his pleadings, contrary to the contention of the Appellants. I therefore resolve Issue 1 against the Appellants. ONYEKACHI AJA OTISI, J.C.A.
THE EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO THE EVIDENCE ADDUCED IS THE PRIMARY DUTY OF THE TRIAL JUDGE
The evaluation and ascription of probative value to the evidence adduced by the parties is the primary duty of the trial Judge seized of the matter. The trial Judge should first of all put the totality of the testimony adduced by both parties on an imaginary scale, with the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses; Mogaji v. Odofin (supra); Akinbade& Anor v. Babatunde &Ors (2017) LPELR-43463(SC). ONYEKACHI AJA OTISI, J.C.A.
THE COURT OF LAW IS DUTY BOUND TO CONSIDER THE TOTALITY OF THE EVIDENCE LED BY EACH OF THE PARTIES
Now in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other.” ONYEKACHI AJA OTISI, J.C.A.
RESOLVING A PRELIMINARY OBJECTION BEFORE DELVING INTO THE MERITS OF AN APPEAL
It is customary to first consider and resolve a Preliminary Objection before delving into the merits of an appeal; Ekemezie v. Ifeanacho&Ors (2019) LPELR-46518(SC); Salami v. Muse (2019) LPELR-47038 (SC), Petgas Resources Ltd v. Mbanefo (2017) LPELR-42760(SC). The reason for this legal position was restated in the case ofGusau v. APC & 3 Ors (2019) LPELR 46897 (SC) at page 7, per Augie, JSC in this manner:
“The position of the law is that a Preliminary Objection must be taken first before determining the merit of an appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally – S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed & Anor V. Olawunmi&Ors (1990) 4 SCNJ 23. In other words, the Court should first consider a Preliminary Objection raised during an Appeal, as a successful objection may effect the disposing of the Appeal. FBN V. T. S. A Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.” ONYEKACHI AJA OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the High Court of Justice, Makurdi, Benue State Coram EjembiEko, J. (now J.S.C), delivered on April 7, 2005, wherein the trial Court dismissed the claims of the Appellants.
The facts leading to the appeal, as can be gleaned from the Record of Appeal, are as follows: The Appellants, as well as Alex T. Ukoh, who was joined as 2nd plaintiff by order of the lower Court, and, Stephen Ukoh, who was 2nd defendant in the lower Court but now deceased and substituted with 1st and 2nd Respondents herein, amongst others, are the children of late Pa Joseph Ukoh who died intestate in 1991. Late Pa Joseph Ukoh had several landed properties, one of which is No. 48 Railway Bye Pass, Makurdi, the subject matter of the case leading to this appeal. The 1st Appellant had instituted Suit No. MHC/161/2003 at the lower Court against the Respondents as defendants therein, claiming that the rights of ownership which the 2nd defendant exercised in respect of the property at No. 48 Railway Bye Pass were wrongly exercised as he was not the beneficial owner thereof andthat the property remained family property. The Appellants’ case was that their late father died intestate and his properties, which were not shared to his surviving children, became family property upon the death of their father, until they are shared or partitioned. It was also the case of the Appellants at the lower Court that the 3rd – 5th Respondents processed the title document for Stephen Ukoh in respect of the property at No. 48 Railway Bye Pass without due process. The Appellants thereupon sought the following reliefs:
a. A declaration that plot No. 22 and covered by Certificate of Occupancy dated the 9/2/71 upon holding No. 78, lying and situated at No. 48 Railway By-Pass High Level, Makurdi, where the 1st defendant currently caries on banking business is the property of late Pa Joseph HembaUkoh and a fortiori family property of Ukoh family and therefore not personal property of the 2nd defendant.
b. A declaration that the 2nd defendant was without any valid title to the said property and the purported agreement between the 1st and 2nd defendant, whereof the 1st defendant came to occupy the said property is illegal, unlawful, null,void and of no effect whatsoever.
c. A declaration that the Certificate of Occupancy No. BNB 1962, issued by the 3rd – 5th defendants to the 2nd defendant over the property of late Pa Joseph HembaUkoh, covered by Certificate of Occupancy upon holding No. 78 aforesaid is worthless piece of paper, invalid, illegal, unlawful, null, void and of no effect whatsoever and howsoever.
d. An order setting aside the Certificate of occupancy No. BNB 1962 and issued by the 3rd – 5th defendants in the name of the 2nd defendant for being illegal, unlawful, null, void and of no effect whatsoever and howsoever.
e. An order directing the 1st defendant to vacate forthwith and deliver vacant possession of the property of late Pa Joseph HembaUko lying and situate at No. 48 Railway Bye-Pass High Level, Makurdi.
f. An order restraining the 2nd defendant from treating or holding out the property of late Pa Joseph HembaUko lying and situate at No. 48 Railway Bye-Pass High Level, Makurdi, as his personal property, unless otherwise approved by the duly constituted family members of Ukoh family in accordance with Tiv tradition and custom.
1. N2,000,000.00 in General damages against the 1st, 3rd – 5th defendants.
The Respondents, as defendants, filed their respective statements of defence in which they denied the Appellants’ claims. Stephen Ukoh as 2nd defendant averred that their father, late Pa Joseph HembaUkoh had gifted to him during his life time, the property in dispute, and upon which the said property ceased to be family property. Upon conclusion of trial, the learned trial Judge dismissed the case of Appellants.
Aggrieved by this decision, the Appellants lodged an appeal by Notice of Appeal filed on 11/4/2005. Thereafter, Mr. Alex Ukoh who was the 2nd Appellant withdrew from the appeal and his name was struck out, and Paul Ukoh, upon application, was joined as the 2nd Appellant. The name of the 1st Respondent, which was Standard Trust Bank Ltd, was also struck out from the appeal upon the application by the Appellants. During the pendency of the appeal, Stephen Ukoh who was the 2nd Respondent in the appeal passed on, and upon application, he was substituted with the 1st and 2nd Respondents, who were his son and his wife, respectively. Upon leave of this Court, anAmended Notice of Appeal was filed on 25/2/2019 on eight grounds of appeal.
The parties filed Briefs of Argument in line with the Rules of this Court. The Appellants’ Brief was filed on 20/2/2019. The 1st and 2nd Respondents’ Brief was filed on 20/3/2019. The 3rd and 4th Respondents filed their Brief on 17/4/2019, which was deemed properly filed and served on 13/5/2019. The 3rd and 4th Respondents also filed a Notice of Preliminary Objection on 17/4/2019, which was argued in their Brief. The Appellants filed a Reply Brief on 27/5/2019. The respective Briefs were adopted by D.M. Tservende, Esq., for the Appellants; by R.O. Adakole, Esq., with U.P. Ogo, Esq., for the 1st and 2nd Respondents; and by S.T. Suleh, Esq., Ag. Director, Legal Drafting, Ministry of Justice, Benue State, for the 3rd – 5th Respondents.
It is customary to first consider and resolve a Preliminary Objection before delving into the merits of an appeal; Ekemezie v. Ifeanacho & Ors (2019) LPELR-46518(SC); Salami v. Muse (2019) LPELR-47038 (SC), Petgas Resources Ltd v. Mbanefo (2017) LPELR-42760(SC). The reason for this legal position was restated in the case of Gusau v. APC & 3 Ors (2019) LPELR 46897 (SC) at page 7, per Augie, JSC in this manner:
“The position of the law is that a Preliminary Objection must be taken first before determining the merit of an appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally – S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCNJ 23. In other words, the Court should first consider a Preliminary Objection raised during an Appeal, as a successful objection may effect the disposing of the Appeal. FBN V. T. S. A Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.”
I shall therefore first consider the Preliminary Objection in order to determine the competence of the appeal.
Preliminary Objection.
The 3rd – 5th Respondents challenged the competence of grounds 1, 3, 4, and 8 of the Amended Notice and Grounds of Appeal; and, further contended that ground 6 had been abandoned.
Counsel for the 3rd – 5th Respondents argued that grounds 1, 4 and 8 were grounds of facts or mixed law and facts, which required leave of the lower Court or of this Court to be competently filed. These grounds 1, 4 and 8 of the grounds of appeal, were filed without leave and therefore incompetent and liable to be struck out. Reliance was placed on the provisions of Section 241 (1) 1999 Constitution of the Federal Republic of Nigeria (as amended). By these provisions, where the ground of appeal involves questions of facts or mixed law and facts, leave must be obtained, citing Section 242(1) of the 1999 Constitution. A ground of appeal that complains that the judgment is against the weight of evidence is a ground of fact which requires leave of Court to be competently filed, citing Ogbechie v. Onochie (1986) 2NWLR (Pt. 23) 284 at 484 and 491. The Court was urged to strike out ground 1 of the grounds of appeal, being a ground of fact that was filed without leave, it was incompetent.
Grounds 4 and 8, which complain about the failure of the trial Judge to evaluate or properly evaluate the evidence, are grounds of mixed law and fact and require leave of Court to be competently filed, citing Agbamu v Ofili (2004) 5 NWLR (Pt. 67) 54. Having failed to obtain leave of Court, grounds 4 and 8 of their grounds of appeal were liable to be struck out. The Court was further urged to discountenance all the arguments arising from grounds 1, 4 and 8 upon being struck out.
The Appellants did not formulate any issue from Ground 6 of the Amended Notice and Grounds of Appeal. The Court was urged to deem the said ground 6 as abandoned and strike it out.
Ground 3 of the Amended Notice on Grounds of Appeal alleged that the trial Judge erred in law and misconstrued the evidence before him and in particular, Exhibits J, P, and Q. The ground of appeal therefore complained of error and misdirection, which the law does not permit. A ground of appeal cannot be an error in law and misdirection at the same time or allege misdirection in law and fact, relying on Ogbechie v Onochie (supra); Oduah v. FRN (2012) 11 NWLR (Pt. 1310) 76 CA. It was submitted that a Court has no jurisdiction to entertain an appeal on a ground of fact and mixed law and fact unless, leave has been obtained. Reliance was placed on Ogbechie v. Onochie (supra); Oluwole v. Lagos State Dev. Property Corporation (1983) 5 SC 1; Obijuru v Ozims (1985) 2 NWLR (Pt. 6) 167 at 176-188.
In reply to the Preliminary Objection, it was submitted for the Appellants that the contention of the 3rd – 5th Respondents was untenable, having regard to the provisions of S.241(1) of the Constitution, relied upon by the Respondents. The decision of the lower Court now on appeal before this Court is the final decision of High Court of Benue State sitting at first instance, which by the provisions of Section 241(1)(a) of the Constitution, is one of the instances where an appellant can appeal as of right, without leave of Court, citing Kwara State Ministry of Health & Anor v. Mallam Issah Electrical Ent (2012) 3 NWLR (Pt.1287) 258 at 274-275. The Court was urged to discountenance the contention of the 3rd – 5th Respondents for being misconceived.
On the further contention of 3rd – 5th Respondents that ground 3 of the Appellants’ amended notice of appeal complained of error and misdirection which the law does not permit, it was submitted that the complaint in ground 3 was clearly set out as ground of error and this is supported with particulars of error also set out.
It was further submitted that the mere fact that a ground of appeal is framed as an error and misdirection does not make it incompetent, provided the ground clearly shows what is complained of. Once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection on the facts of the ground of appeal as in this case, the ground of appeal is valid. The case of Aigbobahi & Ors. v. Aifuwa (2006) 6 NWLR (Pt.976) 270 at 287-288 was cited and relied on. The Court was urged to hold that ground 3 was competent, and to dismiss the preliminary objection of the 3rd – 5th Respondents for want of merit.
Resolution
The exercise of appellate jurisdiction is entirely statutory in that an Appellate Court derives its jurisdiction from the statute creating it, comprising the Constitution and other enabling statutory provisions. Relevant for consideration here are the provisions of Section 241(1)(a) of the 1999 Constitution, as amended:
241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
By these provisions, an appeal over a final decision made by the lower Court sitting at first instance, is as of right and requires no leave, even if the grounds of appeal are grounds of mixed facts and law; Ault & Wiborg (Nig) Ltd v. Nibel Industries Ltd (2010) LPELR-639(SC); Ministry of Education, Anambra State & Ors v. Asikpo (2013) LPELR-21393(CA); Agba & Ors v. Jubu (2019) LPELR-47189(CA).
I will immediately agree with the submissions of Appellants’ Counsel that the judgment being appealed against is a final judgment of the trial High Court sitting at first instance. By virtue of Section 241(1)(a) of the Constitution of Nigeria, 1999 (as amended) an appeal in that instance from the High Court to this Court is as of right, irrespective of the nature of the grounds of appeal whether of law, facts or mixed law and facts.
Ground 3 clearly exposes the complaint of the Appellants. What makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellant actually is. Once it is possible to make sense out of a ground of appeal that complains both of error in law and misdirection on the facts of the ground of appeal as in this case, the ground of appeal is valid.
The 3rd – 5th Respondents have rightly argued that a ground of appeal from which no issue is formulated for determination is deemed abandoned; Chemiron International Ltd v StabiliniVisinoni Ltd (2018) 74 NSCQR 1992; Olaiya v The State (2010) 41 NSCQR 189. No issue was distilled from ground 6. It was therefore abandoned and accordingly, ground 6 is hereby struck out.
The Preliminary Objection of the 3rd – 5th Respondents therefore succeeds in part. Ground 6 of the grounds of appeal, being abandoned, is hereby struck out.
Substantive appeal
The Appellants distilled the following issues for determination:
i. Whether the Court below was right when it failed to consider and pronounce on the issue raised before it that the evidence of the 2nd defendant was at variance with his pleading. (Distilled from ground 2 of the amended notice and grounds of appeal)
ii. Whether the learned trial judge properly evaluated the evidence before him and was right in holding that the property at 48 Railway By-Pass High Level, Makurdi (the disputed plot) was gifted to Stephen Ukoh by Joseph HembaUkoh in his life time thereby dismissing the suit of the plaintiffs(Distilled from grounds 1, 3, 4, 5 and 8 of the amended notice and grounds of appeal).
iii. Whether or not the 3rd – 5th defendants followed due process and were diligent in the issuance of a subsequent Certificate of Occupancy to the disputed property, No.48 Railway Bye Pass Makurdi. (Distilled from ground 7 of the amended notice of and grounds of appeal).
The 1st and 2nd Respondents adopted the issues for determination as distilled by the Appellants. For the 3rd – 5th Respondents, the issues for determination were framed this way:
(1) Whether the Court below/trial judge failed to consider the issue that the evidence led by the 2nd defendant was at variance with his pleadings and thereby occasioned a miscarriage of justice to the Appellants (Ground 2 of the Amended Notice and Grounds of Appeal).
(2) Whether the trial judge properly evaluated and considered the evidence before him and was right in holding that the property situate and known as No 48 Railway Bye-Pass High Level, Makurdi was gifted inter vivos to the 2nd defendant (Stephen Ukoh) by his father, Joseph HembaUkoh (Grounds 1, 3, 4, 5 and 8 of the Amended Notice andGrounds of Appeal).
(3) Whether the 3rd – 5th Defendants/Respondents followed due process and exercised diligence in the issuance of a subsequent certificate of occupancy No BNB1962 over the property situate and known as No 48 Railway Bye-Pass High Level, Makurdi in favour of the 2nd defendant. (Ground 7 of the Amended Notice and Grounds of Appeal).
The issues for determination as framed by the Appellants and the 3rd – 5th Respondents seek the same resolutions, though worded differently. I shall adopt the issues as framed by the Appellants.
Issue 1
The Appellants contend that the trial Court failed to consider the issue they raised in which they argued that the evidence led by the 2nd defendant in the lower Court, was at variance with his pleading. The 2nd defendant pleaded gift inter vivos made to him by their late father Pa Joseph Hemba Ukoh of the property at No. 48 Railway Bye Pass Makurdi, while the evidence he led at the trial was that of inheritance. Reference was made to the evidence of DW1 and DW4 to reinforce that the 2nd defendant gave evidence of inheritance, contrary to what he pleaded. For a gift to qualify as gift inter vivos, it must be absolute and capable of transferring title, which, it was argued, was not the case herein.
It was submitted that the trial Judge was duty bound to pronounce on all issues raised or brought before it and the failure to consider and pronounce on the issue raised constituted a breach of the Appellants’ right to fair hearing. Reliance was placed on Akpan v. Bob (2010) 17 NWLR (PT. 1223) 421 at 465; Anambra State Govt. v. A.S.H.A(2013) 3 NWLR (PT. 1347) 236 at 256; Yakubu v. PHCN Plc (2012) ALL FWLR (PT. 616) 529 at 550; Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (PT. 1077) 254 at 289. Counsel for the Appellants posited that if the lower Court had considered the point raised before it, the lower Court would have reached a finding that the 2nd defendant did not prove gift of the property at No. 48 Railway Bye Pass Makurdi as pleaded. Evidence at variance with pleadings goes to no issue. Since it is not the duty of any Court to choose between two contradicting pieces of evidence given by one party, the only option would be to reject the evidence. The Court was urged to consider and pronounce on this issue, as the lower Court had failed to do so, relying on Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1 at 20.
For the 1st and 2nd Respondents, it was contended that the evidence of the Respondents was not at variance with their pleadings. DW2 and DW4 were not the only witnesses called. They conceded that DW4 used the word “inheritance” while DW2 used the words “if he died” but argued that these words should not be interpreted to take away the fact of gift of the said property by their late father to Stephen Ukoh. It was argued that the evidence of DW2 under cross examination demonstrated that Pa Ukoh made a gift of the property No.48 Railway Bye Pass, High level, Makurdi to the 2nd Defendant and that the words used by DW2 were immaterial. The Court was invited to note that DW2 was a local painter of about 70 years old and urged to hold that the words used by DW2 were not weighty enough to negatively affect his evidence. It was further contended that the term used or misused by witnesses called by the Respondents cannot change the actual character, reality and status of the property in issue as a gifted property.
Exhibit P was a letter from the 3rd – 5thRespondents stating that the 2nd Defendant had been asked to either bring Letters of Administration or a letter from the eldest member of the family confirming that the 2nd Defendant was the person entitled to inherit the property in issue. The head of the family at the material time was late Zachary (Zack) Aga Valentine Ukoh. In response to Exhibit P, Mr. Zack Aga Valentine Ukoh wrote Exhibit Q. It was argued that even if he used the word “inherit”, as head of the family, he was merely confirming the possession and title of Mr. Stephen Ukoh over the disputed property, No.48 Railway Bye Pass, High Level, Makurdi, having personally witnessed the transfer inter vivos. There was evidence that he was present along with DW1 when their father made a gift of the property to Stephen Ukoh, the 2nd defendant. It was further argued that the existence of Exhibit J, a diary kept by late Pa Ukoh, compels acceptance of the fact of a gift of the property to Stephen Ukoh. The terms used by DW2 and DW4 cannot be viewed as evidence outside the pleadings. This was more so as there was evidence from other witnesses and documents before the trial Court that confirm the gift. Exhibit Q corroborated the fact that the property in question is not part of family property, use of language notwithstanding.
On the submission that the gift was not absolute, the evidence of DW1 wherein she testified that their late father made a gift of the property to Stephen Ukoh in the presence of late Zack Aga Valentine Ukoh, the eldest son, and herself was relied on. It was also in evidence that after the gift, late Pa Joseph HembaUkoh made a public announcement of the gift in the family and handed over the title document, Customary Right of Occupancy, to Stephen Ukoh. The property was known to all parties and therefore a physical handover at the land was unnecessary. It was posited that these acts constitute absolute transfer of title to 2nd defendant. The Court was urged to hold that the gift was absolute.
It was further argued, assuming without conceding, that their contention that the use of the word “inheritance” was a misuse of words or language and not germane to disturb the finding of fact reached by the lower Court, was wrong, that the Appellant failed to show how the non-consideration of the mute allegation occasioned amiscarriage of justice or would have tilted the pendulum in their favour to overthrow the fact of a gift inter vivos. Counsel for the 1st and 2nd Respondents was of the view that this burden on the Appellants was not discharged. It is not every error in a judgment that will lead to it being set aside, more so when no injustice was caused to the Appellants thereby. Authorities relied on included: Sylva v. INEC (2018) 18 NWLR (Pt. 1651) 310 at 353; A.G Leventis (Nig) Plc. v. Akpu (2007) ALL FWLR (Pt. 388) 1028 at 1048; Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523; Osafile v. Odi (No.1) (1990) 3 NWLR (Pt.l37) 130. The law is that he who alleges must prove, citing Section 131(1) and (2) of the Evidence Act, 2011, A.T.S & Sons v. B.E.C (NIG) LTD (2018) 17 NWLR (1647) 1 at 55 -56; Abelegah v. State (2018) 18 NWLR (PT 1650)172 at 192.
It was argued that in the circumstances of this matter, the gift was absolute and was as good as a sale because by the said gift, the property in issue was permanently transferred to the grantee, Stephen Ukoh, who thereafter qualified as the owner. There were proven acts of long possession by Stephen Ukoh, even in the life timeof late Pa Joseph Hambe Ukoh. While long possession without any other overt acts of absolute ownership cannot be helpful, citing Isiba & Ors v. Hanson & Anor (1967) NSCC 3,overt acts pointing unequivocally to absolute ownership to the knowledge of the Appellants would be sufficient to divest the family of their radical title. Late Stephen Ukoh, to the knowledge of his brothers including the Appellants, made monumental improvements on the property and showed his exclusive possession. It was therefore late for the Appellants to raise this adverse claim. Other authorities relied on were: Adenle v. Oyegbade (1967) NWLR 136 at 138; Eze v. Igiliegbe&Ors 14 WACA 61. The Court was urged to resolve this Issue in favour of the Respondents.
For the 3rd – 5th Respondents, it was similarly argued that the evidence led by the 2nd defendant was not at variance with the pleadings on the issue of gift inter vivos. It was immaterial that the Appellants raised it and the trial Court was not bound to consider it in the circumstance. Further, the Appellants did not show how such failure on the part of the trial Court occasioned a miscarriage of justice to them. The pleadings of the 2nd defendant and the evidence of his witnesses, DW1, DW2 and DW3, which was consistent with the pleading that Pa Ukoh gave property in issue, No 48 Railway Bye-Pass, High Level, Makurdi, to the 2nd defendant, as well as the documentary evidence of Exhibits J, P and Q were relied on. It was argued that the use of the word “inheritance” was a mere misnomer as the totality of the evidence by the defence established that the property was gifted to 2nd defendant inter vivos by his father. Therefore, evidence was not at variance with pleading.
It was further argued, assuming without conceding that the issue of evidence being at variance with the pleading arose at the trial and was raised by the Appellants but was not considered by the lower Court, the 3rd – 5th Respondents submitted that the Appellants have not shown what injustice they have suffered on account of such failure. They ought to show a miscarriage of justice to ground a reversal of the judgment, since it is not every mistake or error in a judgment that can lead to such reversal. The cases of A.G. Leventis (Nig) Plc v Akpu (2007) All FWLR (Pt. 388) 1028 at 1048;Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 were cited and relied on. The Appellants had not discharged on them. The Court was urged to resolve this Issue against the Appellants.
Resolution
A Court of law, whether of first instance or in its appellate jurisdiction, has a bounden duty to make findings and pronounce on all issues canvassed before it by the parties, which are material to the resolution of the matter submitted for adjudication by the parties; Honeywell Flour Mills Plc v. Ecobank (2018) LPELR-45127(SC); 7-Up Bottling Co. Ltd &Ors v. Abiola& Sons Bottling Co. Ltd (2001) LPELR-1(SC); A. G. Leventis (Nig) Plc v. Akpu (2007) LPELR-5(SC). In Okonji v Njokanma (1991) LPELR-2476(SC) at pages 27 – 28, (1991) 7 NWLR (Pt. 202) 131 at 150 the Supreme Court per Uwais JSC held as follows: –
“It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions.”
Parties are therefore entitled to hear from the Court on each issue they raise before it as failure to do so may result in a miscarriage of justice; Garba v. Mohammed &Ors (2016) LPELR-40612(SC); Dingyadi& Anor v. INEC &Ors (2010) LPELR-40142(SC). An exception to this would be when any aspect of the said issue is subsumed in an already considered issue. The said issue can then be taken as settled; Honeywell Flour Mills Plc v. Ecobank (supra); Blessing v FRN (2018) LPELR-44213(SC).
It is also trite law, as rightly submitted by the Appellants’ Counsel, that evidence of facts not pleaded or contrary to the pleadings go to no issue; Ohiaeri& Anor v. Akabeze & Ors (1992) LPELR-2360(SC); Petrojessica Enterprises Ltd & Anor v. Leventis Technical Co. Ltd (1992) LPELR-2915(SC); Amodu v. Commandant, Police College Maiduguri & Anor (2009) LPELR-467(SC); Anyafulu & Ors v. Meka & Ors (2014) LPELR-22336(SC); Aminu &Ors v. Hassan &Ors (2014) LPELR-22008(SC); Akinbade & Anor v. Babatunde &Ors (2017) LPELR-43463(SC).Indeed, the Court must discountenance such evidence.
Now, the main grouse of the Appellants under this issue was that the 2nd defendant in the trial Court, now substituted by the 1st and 2nd Respondents herein, had pleaded that the disputed property was given to him as a gift inter vivos by his late father, but, that evidence adduced by the 2nd defendant was to the effect that the said property was inherited. This alleged anomaly was raised before the lower Court but the lower Court made neither finding nor pronouncement on the issue. It was their contention that if the lower Court had considered this point, it would have reached a finding that the 2nd defendant did not prove gift of the disputed property as pleaded.
In paragraphs 7 and 8 of the 2nd defendant’s Amended Statement of Defence, pages 46 – 58 of the Record of Appeal, it was pleaded that the disputed property had belonged to the 2nd defendant’s deceased father, Pa Joseph HembaUkoh. But, by a gift inter vivos, his said father gave the property to the 2nd defendant on 27/1/1985. In evidence, DW2, a painter who came to work in the said property, testified, page 162 of the
Record of Appeal:
“As I was painting the 4 rooms 2nd defendant greeted me. His father introduced him to me as his son. The father told me that if he died, the 2nd defendant would take over the compound. He said it was necessary to announce his intentions before his death. He told me that the plot belonged to 2nd defendant.”
Under cross examination by Appellants’ Counsel, page 163 of the Record of Appeal, DW2 further said:
“I am a Tiv man (about 70 years old) …In Tiv land if a person shares his houses he will tell many people. That is why Pa Ukoh told me that he had given this house to 2nd defendant.”
(Emphasis mine)Under further cross examination, his evidence stood unscathed.
DW4, was the Senior Deeds Registrar/Legal Officer in the Ministry of Lands and Survey, Makurdi. He testified as follows, pages 181 – 182 of the Record of Appeal:
“The 2nd defendant came to convert a customary right of occupancy issued by Makurdi Local Government to State Right of Occupancy. I have forgotten the number of the Local Government customary right of occupancy. The 2nd defendant came to our office to have converted to statutory right of occupancy. The Local Government customary right of occupancy was in the name of the 2nd defendant. Mr. Ukoh Joseph Hemba Ukoh is the name of the 2nd defendant’s father.
When 2nd defendant came for conversion we started the processing of the conversion. We discovered that his father had died. We wrote a letter to the 2nd defendant to either bring Letters of Administration or a letter from the eldest member of the family confirming that the 2nd defendant is the person entitled to inherit the particular property. The letter we wrote is exhibit P. Zachary Ukoh wrote in response to exhibit P that the 2nd defendant was the proper person to inherit the disputed property – No. 48 Railway Bye Pass High Level, Makurdi.
Exhibit Q is the letter Zachary (Zack) Ukoh wrote to us in response to exhibit P. Based on this confirmation the Ministry of Lands & Survey issued a statutory title, No BNB 1962. We issue the statutory BNB 1962 to 2nd defendant after thorough investigation.”
These are the pieces of evidence the Appellants contend are contrary to the pleadings of the 2nd defendant. I must straight away say that I do not share this view.
The testimony of DW2 in chief and under cross examination immediately demonstrates that notwithstanding the words he used, the fact he conveyed to the trial Court was that Pa Ukoh made a gift of the disputed property known as No.48 Railway Bye Pass, High level, Makurdi to the 2nd defendant. It was part of Tiv culture to make public announcements of such gifts before the death of the benefactor, which was the reason why Pa Ukoh told him that he had given the disputed house to 2nd defendant. Therefore, though the words “if he died” appear superficially to convey an impression that the gift was a bequest to take effect upon the death of Pa Ukoh, DW2 under cross examination clarified that the property in issue was given to the 2nd defendant by Pa Ukoh. Therefore, I agree with the Respondents that the use of the words is immaterial, as the evidence conveyed the pleaded fact of a gift inter vivos.
In the case of DW4, the evidence was that a letter, Exhibit P, was written to the 2nd defendant, who had sought a conversion of the title to the disputed property from a Local Government Customary Rightof Occupancy to a Statutory Right of Occupancy, to either bring Letters of Administration or a letter from the eldest member of the family confirming that he was the person entitled to inherit the property in issue. The family head at the time, who was Zachary Ukoh, wrote Exhibit Q, in response to the effect that the 2nd defendant was the proper person to inherit the disputed property.
In my considered view, the evidence of DW4, as well as Exhibits P and Q, must be viewed in the context in which they were written. The Bureau of Lands and Survey (5th Respondent) desired to confirm that the person who had applied for the conversion of his title was the proper person they ought to be dealing with, hence the demand to see either Letters of Administration or a letter from the eldest member of the 2nd defendant’s family. The evidence before the trial Court was that the property in issue was given as gift inter vivos to the 2nd defendant by his late father, Pa Ukoh. For the benefit of a third party, outside the family, and in the context in which the letter was written, a gift and inheritance would simply convey the same meaning, to wit: that the 2nddefendant was the proper person who the Bureau of Lands and Survey could deal with, being entitled to the conversion of title he sought. I do not see how, if examined within the context in which it was written, Exhibit Q, or the evidence of DW4, could be construed as being contrary to the pleadings of the 2nd defendant.
Further, evidence is not considered as single units without a consideration of the entire evidence adduced. In line with the pleadings of the 2nd defendant that the land was given to him as gift inter vivos by his late father, DW1, who was the sister of both the Appellants and of the 2nd defendant, testified that she, as well as Zachary Ukoh their elder brother, were present when the said gift was made. She said, page 154 of the Record of Appeal:
“In 1985 our father called me in the presence of our late elder brother, Zack A. V. Ukoh, and said that the house at No. 48, Railway Bye Pass had been given to 2nd defendant by him. The 2nd defendant was present also.”
Her testimony was unshaken under cross examination.
An inheritance means 1. Property received from an ancestor under the laws of intestacy 2. Property that a person receives by bequest or devise. See Black’s Law Dictionary, 9th edition, page 853, which definition was accepted in Audu v. Shedrack & Anor (2016) LPELR-40771(CA); Egboka & Ors v. Umeakuana& Anor (2017) LPELR-42495(CA). A property that is inherited passes on to the heir at the death of the owner. Except in cases where the property is a generational heirloom or legacy, the heir may not know he has been bequeathed the property until the death of the owner of the property. However, this scenario was neither the pleading of the 2nd defendant nor the evidence adduced in proof of his claim.
The Appellants rightly contended that parties are entitled to hear from the Court on each issue they raise before the Court as failure to do so may result in a miscarriage of justice. In the Appellants’ Reply Brief, it was argued that the miscarriage of justice to them was the finding of the trial Judge that the subject matter of this appeal was gifted to Stephen Ukoh, and therefore no longer part of the estate of late Pa Joseph HembaUkoh. By the said finding, the rights of the Appellants to benefit from the estate of their late fatherwere interfered with by the wrong exclusion of the disputed property, No. 48 Railway Bye Pass, Makurdi, from the estate of Appellants’ deceased father. The Court was urged to hold that this injustice was occasioned by the wrong finding of the Court below.
A miscarriage of justice is a failure of justice. It simply means that the Court has failed to do justice. This can arise when there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed, when outcome of legal proceedings is prejudicial or inconsistent with the substantiated rights of the party or when what is done is fundamentally not justice according to law; Aigbobahi v. Aifuwa (2006) LPELR-267(SC), (2006) 6 NWLR (PT. 976) 270 at 290 – 291; Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 306; Oke v Mimiko (2013) LPELR-21368(SC) at pages 37 – 39; Nwankwoala v. Federal Republic of Nigeria (2018) LPELR-43891(SC). In the instant case, however, no miscarriage of justice was demonstrated by the Appellants. The resolution of the contention of the Appellants was subsumed in the findings and pronouncements of the trial Court. These findings demonstrated that the evidence adduced by the 2nd defendant was in line with his pleadings, contrary to the contention of the Appellants. I therefore resolve Issue 1 against the Appellants.
Issue 2
The Appellants contended that the learned trial Judge failed to properly evaluate the evidence before him and was therefore wrong in holding that the property in dispute was given as a gift to the 2nd defendant by late Pa Ukoh during his life time when the 2nd defendant did not lead evidence in support of the alleged gift of the property in dispute to him. The learned trial Judge was also wrong to have dismissed the Appellants’ claim based on his finding. A gift inter vivos takes effect while the donor is living, citing Jovinco Nig. Ltd & Anor v. Ibeozimako (2014) LPELR-23599 (CA), but that the evidence of DW2 showed that the 2nd defendant was to take over the house after his father’s death. The finding of the learned trial Judge, page 290 of the Record of Appeal, was that the property devolved on the 2nd defendant upon the death of their father thereby eliminating the possibility of gift inter vivos. Learned Counsel then posed this question: If Pa Joseph HembaUkoh made a gift of No. 48 Railway Bye Pass to the 2nd defendant, why would the property devolve on the 2nd defendant upon the death of their father instead of conferring and transferring title to the 2nd defendant upon the making of the gift as envisaged in law? It was submitted that the elements of gift are missing as the evidence on record fail to meet the requirement of law as regards gift inter vivos.
Exhibit J was the 1990 dairy of late Pa Ukoh, where the entry of 13/12/90 approved of 2nd defendant’s construction of a fence on the property in dispute being the 2nd defendant’s chosen plot. It was argued that this was not synonymous with a gift. In a gift, the donee has no right of choice, citing Achad v. Akagh (2003) FWLR (pt. 186) 612 at 627. The entries on Exhibit J show that late Pa Ukoh granted approval to the 2nd defendant to construct a fence around the property to provide adequate security. It was submitted that a grant by a father to his son to live on his plot cannot ripen into absolute ownership unless there is evidence of a gift, relying on Dokubo v. Omoni (1999) 6 SCNJ 168 at 180.
It was further submitted that the evidence of DW1 to the effect that the property in dispute was gifted to the 2nd defendant in the presence of witnesses goes to no issue, as it was not pleaded. Evidence of facts not pleaded goes to no issue; relying on Nigerian Industrial Development Bank Ltd v. Olalomi Industrial Ltd (2002) FWLR (pt. 98) 979) at 994. It was submitted that the findings and conclusion of the learned trial Judge that there was a gift inter vivos was perverse as the evidence on record did not support the conclusion. The conclusion of the learned trial Judge was based on the evidence of DW1, DW2, DW3, Exhibits J and Q. But, that the entry in Exhibit J did not corroborate a gift of No. 48 Railway Bye Pass to 2nd defendant. The evidence of DW1 and DW3 was that their father, late Pa Ukoh, made a gift of No. 48 Railway Bye Pass Makurdi to the 2nd defendant, DW3, in 1985. The entries in Exhibit J were made on 13/12/1990, about 5 years after the gift was alleged to have been made. If the said No 48 Railway Bye Pass was gifted to the 2nd defendant, it ceased to be the property of their father from that point and the 2nd defendant could deal with the propertyas the owner. The tenor of the entries in Exhibit J still spoke of agreement and approval by Pa Ukoh. It was submitted that the tenor of those entries depicts an inference that Pa Ukoh was still in charge and control as owner of the said property as at 1990. This was in agreement with the Appellants’ contention and evidence that, the 2nd defendant was only granted approval to live at No. 48 Railway Bye Pass by their late father because that was the property the 2nd defendant chose to live in. The Court was urged to hold that a more reasonable conclusion would be that the No. 48 Railway Bye Pass was still Pa Joseph Hemba Ukoh’s property as at 1990 and upon his death became family property. This also accords with the Appellant’s case that Pa Joseph Hemba Ukoh did not share his properties amongst his children in his lifetime. There was also evidence on record that, other children of late Pa Joseph Hemba Ukoh chose where to live amongst the properties of their father, hence the 2nd defendant’s choice of No. 48 Railway Bye Pass. The case of Orido v. Akinlolu (2012) 9 NWLR (pt. 1305) 370 at 386-387 was cited and relied on to submit that the ingredients of a gift inter vivos, were not found in the evidence relied upon by the learned trial Judge.
It was also contended that the trial Court was wrong to have held that Exhibit A was not the original Certificate of Occupancy over No. 48 Railway Bye Pass, Makurdi. Exhibit A was dated 9/3/1971, the same date given by Zack A.V. Ukoh in Exhibit Q as the date on the title document to the property in dispute. The learned trial Judge relied on Exhibit Q but rejected that Exhibit A was the original Certificate of Occupancy in respect of the disputed property. The 2nd defendant as DW3 admitted under cross examination that Exhibits Q and A made reference to the same property. The 3rd – 5th defendants also admitted that the property in dispute was covered by Certificate of Occupancy dated 9/3/71. What is admitted needs no further proof, relying on Erik Emborq Export A/S v. Int’ Breweries Plc (2001) FWLR (pt. 82) 2031 at 2048-2049. The Court was urged to hold that the learned trial Judge was wrong in holding that Exhibit A was not the original Certificate of Occupancy over the disputed property.
Counsel for the Appellants conceded that, aparty must succeed on the strength of his case and not on the weakness of the defence. But that a party was entitled to the benefit of an opponent’s evidence which supports his case. The Appellants as plaintiffs at the Court below had no more burden than to prove their case on the balance of probabilities, citing Kaydee Ventures Ltd. v. Minister, F.C.T. (2010) 7 NWLR (PT. 1192) 171 at 205-206. It was submitted that if the evidence called by both parties were properly evaluated, the evidence would weigh more in favour of the Appellants’ case. The burden of proving that the disputed property was subject of gift inter vivos to exclude it from becoming family property of Hemba Ukoh family was on the 2nd defendant who asserted such facts, citing and relying on Reptico S.A. Geneva v. Afribank (Nig.) Plc (2013) 14 NWLR (PT. 1373) 172 at 207-208. The Court was urged to resolve this issue in favour of the Appellants.
In responding to this Issue, the 1st and 2nd Respondents adopted all their earlier submissions made in respect of Issue No. 1 and reiterated that there was evidence of the outright gift of the said property to Stephen Ukoh, the now deceased 2nd defendant. Property transferred by the owner while alive cannot be part of the family property to be inherited at the demise of the owner. The case of Allison v. Clever (2016) All FWLR (Pt. 855) 155 at 171 was cited and relied on. It was submitted that the lower Court had assessed evidence on the point and came to the right conclusion that the No. 48 Railway Bye Pass, Makurdi was a gift made by Pa Ukoh, to Stephen Ukoh. The decision of the lower Court, which was based on facts presented to it by witnesses the lower Court had seen, ought not to be disturbed. Reliance was placed on Onowan& Anor v. Iserhien (1976) NMLR 263 at 265; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140 at 166. The Appellants did not show that the learned trial Judge did not adequately utilize the opportunity of seeing, hearing and watching the demeanour of witness and thereby reached a perverse decision. The lower Court had noted that PW1 in the course of his evidence “appears fidgety and confused”, page 93 of the Record of Appeal.
The trial Court had given reasons for disbelieving the authenticity of Exhibit A as the original of the Customary Right of Occupancy issued in 1971 and gave reasons for its position. The Appellants did not show why the trial Court should have accepted their contention on Exhibit A in the face of the damaging alterations on Exhibit A, with no explanations as to how they were made. Even if Mr. Zack A. V. Ukoh referred to a Certificate of Occupancy dated 9/3/71, it could not be the defaced and incurably bad Exhibit A. The Court was urged to hold that the disputed property had ceased to be a family property.
The Court was also urged to discountenance the contention that the gift did not meet the requirements of gift inter vivos. Counsel for the 1st and 2nd Respondents relied on earlier arguments. He further relied on the evidence of DW1, which was not shaken under cross examination, and, the handover of the title document to the 2nd defendant, which was not disputed.
The Appellants had argued that the use of the word “chosen” in Exhibit J, the diary of late Pa Ukoh was not synonymous with gift and that the tenor of entries in Exhibit J do not denote a transfer. It was submitted that this contention was not sustainable. It was argued that, as is common in our local African setting, children pay respect to the elders, more so their parents. It was on record that Pa Ukoh made favourable remarks about the 2nd defendant in his diary, Exhibit J. In this light, it was submitted that it is understandable that the 2nd defendant would seek consent of his father who was living nearby at No. 76, old Otukpo Road. It was the view of Counsel that this action of seeking the consent of his father, should not be overstretched to mean that there was no gift ab initio.
The Appellant had argued that the fact of the presence of witnesses at the time of the gift was not pleaded. It was submitted in reply, that facts are pleaded and supported with evidence, whether oral and/or documentary. A party need not specifically plead there were witnesses when an event took place to be able to call witnesses in proof of facts pleaded.
The Appellants had argued that the execution of Exhibit Q did not confirm the gift inter vivos, other children of Pa Ukoh had not been gifted with properties by him and queried why the 2nd defendant waited until after the death of their father to apply for a change of title. In reply, it was submitted that the owner of property has absolute right to deal with the property as it pleases him. The owner could decide to give any of his properties to any of his children. There was evidence that some other children occupied separate properties of their father, though not given to them inter vivos as in the case of 2nd defendant. In the view of learned Counsel for the 1st and 2nd Respondents, the time the 2nd defendant decided to do a change of title document to his name was immaterial as that did not cast doubt on his absolute ownership the property. It was also argued that the use of the word ‘inherit’ in Exhibit Q did not change the status of the property as a gift to the 2nd defendant, rather, Exhibit Q corroborated the fact that No. 48 Railway High Level, Makurdi was no longer property of the Joseph HembaUkoh family anymore. The trial Court was therefore correct in its reasoning and conclusions.
An allegation that the judgment of the Court below is against the weight of evidence is an imputation that, if the evidence on both sides is placed side by side with the other on imaginary scale, that of the Appellants will outweigh the Respondents to warrant a re- evaluation and/or a variation of the final resolution of the Court, citing and relying on Ezebilo v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Mogaji v. Odofin (1978) 4 SC 91. It was submitted that from the records of the lower Court, there was nothing to show that the evidence offered by the Appellant outweighed that of the Respondents to warrant re-evaluation by this Court. The Court was urged to resolve this issue against the Appellants.
For the 3rd – 5th Respondents, it was submitted that the learned trial Judge properly evaluated and considered the evidence and was right in holding that the disputed property was gifted inter vivos to the 2nd defendant by his father, Pa Ukoh, having regard to the available evidence. The 3rd – 5th Respondents also relied on earlier arguments under Issue No 1 and adopted the arguments and submissions of the 1st and 2nd Respondents in this regard. Counsel urged Court to note the evidence of DW1, DW2 and DW3, which were unshaken by cross examination, as well as the contents of Exhibit J, P, and, Q. The learned trial Judge had also considered and found Exhibit A to be a forgery and not the Certificate of Occupancy for the property in issue.
It was submitted finally, that the trial Judge, upon proper evaluation of the evidence, came to the right conclusion that Pa Ukoh gifted No 40 Railway Bye-Pass High Level, Makurdi in his life time to the 2nd defendant, now deceased. The Court was urged not to disturb the findings of the learned trial Judge. The cases of Mogaji v Odofin (1978) 4 SC 91; Ezebilo v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 were cited and relied on.
Resolution
The evaluation and ascription of probative value to the evidence adduced by the parties is the primary duty of the trial Judge seized of the matter. The trial Judge should first of all put the totality of the testimony adduced by both parties on an imaginary scale, with the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier, not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses; Mogaji v. Odofin (supra); Akinbade& Anor v. Babatunde &Ors (2017) LPELR-43463(SC). These established principles were restated in Lagga v.Sarhuna (2008) LPELR-1740(SC) at page 23 in this manner:
“Now in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other.”
Therefore, on which side of the scale is heavier, the trial Judge would consider these factors:
a. Whether the evidence is admissible:
b. Whether it is relevant;
c. Whether it is credible;
d. Whether it is conclusive; and
e. Whether it is more probable than that given by the other party
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge would arrive at his final conclusion based on the evidence which he has accepted; Anekwe& Anor v. Nweke (2014) LPELR-22697(SC); Ayorinde & Ors v. Sogunro & Ors (2012) LPELR-7808(SC). Ordinarily, the appellate Court should not, and may not interfere in the finding of fact by the trial Court where the duty has been properly carried out by the trial Judge. An appellate Court may however, in the interest of justice set aside findings of fact made by a trial Court where such findings cannot be regarded as resulting from the evidence or are not based on the fact of the trial judge having seen and heard the witnesses or conclusions drawn from demeanour of the witness; Enang & Ors v. Adu (1981) LPELR-1139(SC); Olanrewaju v Governor, Oyo State (1992) LPELR-2570 (SC); Olabanji v Omokewu (1992) LPELR-2541(SC); Onyekwuluje & Anor v. Animashaun & Anor (2019) LPELR-46528(SC).
The crux of this matter was whether the disputed property was a gift inter vivos made by late Pa Ukoh to his son the 2nd defendant in the trial Court, now substituted by the 1st and 2nd Respondents, so as to remove the said disputed property from properties in the estate of late Pa Ukoh. The parties asserted their different positions. The law remains that he who asserts must prove; Section 133 of the Evidence Act, 2011. See also: Agbi v Ogbeh (2006) NSCQR Vol. 26-page 1257; Eyo v Onuoha (2011) Vol 45 page 210. It is now to see if the learned trial Judge properly evaluated the evidence adduced by the parties in proof of their respective positions.
A gift inter vivos, which means a gift between the living in Latin, is a legal term that refers to a transfer or gift made during the life of the grantor, as opposed to a testamentary transfer, which is a gift that takes effect on death. A person is usually without the competence to revoke a gift inter vivos made by his ancestor, except the gift was null and void ab initio or that the gift was subject to a condition which has been broken; Ekpa & Ors v. Utong & Ors (1991) LPELR-1084(SC); Isiohia v Elechi (2018) LPELR-44988(CA). Therefore, property that is subject matter of a gift inter vivos does not form part of the donor’s estate at death. The gift inter vivos remains the exclusive property of the donee even after the death of the donor; Abah v. Ogbe (2012) LPELR-14842(CA). A gift inter vivos was defined by Uthman Mohammed, JSC in Anyaegbunam v. Osaka &Ors (2000) LPELR-508(SC) at pages 23 -24 as follows:
“A gift inter-vivos is an act whereby something is voluntarily transferred from the true possessor to another person. with full intention that the thing shall not return to the donor, and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the giver. See Halsbury’s Laws of England. 3rd Edition. vol. 18, page 364 at para 692. The essential thing to consider is that the gift is complete when the donee has accepted it. If that condition is satisfied the donor has no right to revoke the gift. See Dewar v. Dewar (1975) 2 All E.R. 728 at 732.”
There are established features that fundamentally characterize a gift inter vivos. In the first place, although the gift inter vivos may be in writing, in lieu of writing, there must be actual handing over of the property to the donee in the presence of witnesses and an acceptance by him of the gift. Such acceptance must be made with as much publicity as possible. Ayinke v. Ibidunni (1959) 4 FSC 280 at 282, (1959) SCNLR 666 at 669; Orido v. Akinlolu (2012)LPELR-7887(CA), (2012) 9 NWLR (PT. 1305) 370 at 387; Enadeghe v. Eweka (2014) LPELR-24479(CA); Davies v. Rahman-Davies & Anor (2018) LPELR-46557(CA); Olajide v. Akinboboye (2018) LPELR-46166(CA). When such a gift of land is completed with delivery of possession, there is a transfer of ownership of the land to the donee and extinction of the rights of those who claim through or under the donor; Ekpa&Ors v. Utong&Ors (supra).
The 2nd defendant had pleaded that the disputed property was given to him as settlement by his father inter vivos on 27/1/1985. In proof of his pleading, he called DW1 who said that she and her late elder brother, Zachary Ukoh (Zack), who was Pa Ukoh’s oldest son, were present when Pa Ukoh gave the property to the 2nd defendant. I had earlier noted that the evidence of DW1 was not dislodged under cross examination. DW3 testified, page 164 of the Record of Appeal:
“On 27.1.85 my father asked me in line with my wishes to move to 48, Railway Bye Pass and take possession of it as my house. I accordingly, moved in and began to live there.”
He also testified that his older brother Zack A.V. Ukoh as well as his younger sister DW1, were present when Pa Ukoh made the gift inter vivos of the property in dispute to him. The evidence before the trial Court revealed that in the life time of Pa Ukoh, the 2nd defendant was in possession of the disputed property and begun to make improvements on the property. PW1 also testified as much. Under cross examination, PW1 said, page 98 of the Record of Appeal:
“I knew when 2nd defendant was living at 48, Railway By-Pass. I do not know that he started living there in 1985. He was living there when my father was alive. He started developing the property while my father was alive. He started the storey building and my father stopped him. He lived there until my father died. After my father died he continued residing there.”
PW2 as well testified that the 2nd defendant was living at the disputed property, No. 48, Railway Bye-Pass, Makurdi.
It was the evidence of PW2 that their father, Pa Ukoh, lived on the disputed property but later relocated to live at No 76 Otukpo Road, Makurdi in the late 1980s, pages 118 and 120 of the Record of Appeal. PW2 described the distance between the disputed property and No 76 Otukpo Road as about a 10-minute walk but about 20-minute walk for an old man, page 138 of the Record of Appeal. In other words, both properties were close to each other. Under cross examination, DW1 also said:
“Zack Ukoh built the property at 76 Old Otukpo Road that we packed to…”
DW2, the painter, who said he was not related to the family at all, had said under cross examination, page 162 of the Record of Appeal:
“Pa Ukoh told me that after painting the house he would leave the compound for 2nd defendant and that Zack Ukoh had built another place for him.”
These pieces of evidence all corroborate the fact that the Pa Ukoh was formerly resident at the disputed property No 48 Railway Bye-Pass but vacated it and moved into No 76 Otukpo Road or Old Otukpo Road, while the 2nd defendant took possession and remained resident at the disputed property, No 48 Railway Bye-Pass, Makurdi.
DW1 and DW3, the 2nd defendant, further testified that DW3 upgraded the disputed property after he was given the said property. DW1 said in evidence, pages 154-155 of the Record of Appeal:“when the 2nd defendant was given the house he brought telephone and electricity to the compound. He fenced the entire compound. He also painted the building. The new storey building on the plot was constructed by the 2nd defendant. The 1st defendant helped him to complete it. He completed that structure around 2002…When 2nd defendant was erecting that storey building the plaintiffs were aware of the construction. They occasionally visited the compound.”
The 2nd defendant as DW3 also testified that as soon as he took possession of the disputed property, he commenced major renovations and an upgrade of the disputed property. He connected electricity therein and applied for telephone line. Exhibits L1 and L2 were electricity bills (NEPA), while Exhibits M1 – M7 were a NITEL Agreement form, NITEL Telephone Service Installation Bill of 15/9/1992 and NITEL pay in slips for the telephone line. These documents, all in the name of the 2nd defendant, were tendered and admitted in evidence without objection, pages 165 – 166 of the Record of Appeal.
The disputed property originally was a four-room structure. DW3 however said he demolished it and commenced a storey building thereon. PW2 had said that the 2nd defendant halted the construction of the storey building because late Pa Ukoh stopped him, as it was being done without Pa Ukoh’s consent. Under cross examination, DW3 said, page 176 of the Record of Appeal:
“My father was alive when I started structural renovations. He did not object. I did not have the volume of money to start the storey building.”
Exhibit J, was one of the diaries kept by late Pa Ukoh, in which he made entries on 13/12/1990 approving the construction of a fence around the disputed property by the 2nd defendant. The learned trial Judge quoted some entries made by Pa Ukoh in Exhibit J, at pages 268 – 269 of the Record of Appeal, as follows:
“Please read entry serial number 2 of Thursday the 13th day of December, 1990. I have accepted Stephen OrkwaghUkoh’s desired intention and approved of it dated here above.
Sigd
13/12/90”
Entry no. 2 of 13/12/1990 is at page 156 of Exhibit J. It states-
“Construction of fence: Mr. Tor Davihi Akena, today started digging foundation to erect fence in order to provide adequate security of the compound at No. 48 Railway Bye-Pass at plot No. 269, High Level, Makurdi being Mr. Stephen Orkwagh Ukoh’s chosen plot. I have therefore agreed and approved of it.”
The Appellants’ Counsel had argued that the fact that the 2nd Respondent obtained the consent or approval of his father for the construction of the fence demonstrated that he was not given the said property as a gift inter vivos. I am of the view however that this conclusion cannot be drawn in the light of other pieces of evidence that were not impugned by cross examination.
It was established by evidence that the 2nd defendant commenced renovations in the disputed property during the lifetime of Pa Ukoh. He went on to upgrade the property and connect utilities into the disputed property. The evidence of DW1 and DW3 in this regard was not dislodged under cross examination. All these took place after the gift inter vivos in 1985. While the 2nd defendant as DW3 testified that he stopped the construction of a storey building on the disputed property because he did not have the funds, the evidence of PW2 was that the further construction of storey building on the land was stopped because Pa Ukoh did not consent to it. Placing this piece of evidence of PW2 alongside the other pieces of evidence, it does not seem to have the ring of truth. As already observed, the evidence of DW1, DW2 and DW3 was not discredited under cross examination. Improvements, utilities and renovations had commenced on the property in dispute in the lifetime of Pa Ukoh and after he had made a gift inter vivos of the disputed property to the 2nd defendant on 27/1/1985. DW2 testified that Pa Ukoh told him that he was relocating to live elsewhere to leave the disputed property for his son, the 2nd defendant. Late Pa Ukoh did in fact vacate the disputed property and move to No 76 Old Otukpo Road, where he lived until he died in 1991. In other words, as 13/12/1990 when the entries were made by late Pa Ukoh in his diary, Exhibit J, he was no longer resident in the disputed property. He had already vacated the property in dispute and relocated to No 76 Old Otukpo Road, which was about a 20-minute walk away, for a man his age.
The fact that the entry in Exhibit J described the disputed property as the 2nd defendant’s chosen plot is of no moment. DW3 testified under cross examination, page 177 of the Record of Appeal:
“I was the only person staying in Makurdi with my father. I requested a property from my father to develop and he gave me No 48, Railway Bye Pass…
My father recorded transactions in his diary. Zack Ukoh told me that he made favourable remarks about me in his diary. My father gave me No 48 Railway Bye Pass in 1985.”
Incidentally, PW1 said in evidence said that their father asked the 2nd defendant to choose any property to stay on, page 90 of the Record of Appeal. The 2nd defendant chose No 48 Railway Bye Pass, which would seem to explain the use of the words: Mr. Stephen Orkwagh Ukoh’s chosen plot in Exhibit J by late Pa Ukoh.
Further, it was not disputed that Pa Ukoh kept diaries in which he made detailed entries of relevant information. He recorded the event of construction of the fence round the property in issue. Pa Ukoh was alive when developments and upgrades to the property in issue were commenced and effected by the 2nd defendant. He was alive when his existing 4-room structure thereon was demolished to paveway for construction of a storey building. I find it revealing that no opposition or dissatisfaction on account of developments and upgrades was recorded in Exhibit J. For a man who kept diaries of this nature, his disapproval or prohibition of any development on the property in dispute would also have been recorded. It is therefore my considered view that the evidence of PW2 that the further construction of a storey building on the land was stopped because Pa Ukoh did not consent to it does not have the ring of truth.
Now, the 2nd defendant as DW3 testified that late Pa Ukoh gave him the title document to the disputed property but said he lost it in a checked in bag while traveling on Nigeria Airways from Makurdi to Lagos. He reported the loss of his bag containing his documents to the police. The affidavit of loss as well as an extract from the Airport Police Station, Ikeja were admitted as Exhibits N and O. The Appellants denied that the title document to the disputed property were given to the 2nd defendant. They tendered a Certificate of Occupancy to the disputed property, dated 9/3/1971, Exhibit A, which they said was in the custody of their father but removed by their brother Zachary after his death. The document was alleged to have been in the custody of Zachary. PW2 testified that after the death of Zachary, his wife and his son handed over properties belonging to Pa Ukoh, which were in the custody of late Zachary with a document listing the properties. The said document, dated 10/11/2000, was marked Exhibit I. The hand over was to Gabriel Tyosue Ukoh, who was now the eldest surviving son of Pa Ukoh. Exhibit I however revealed that the original certificate of occupancy relating to No 48 Railway Bye-Pass was not part of the items handed over to the new family head, Gabriel Ukoh.
Upon a critical examination of Exhibits A and I, the trial Court made the following findings and held, pages 281 – 284 of the Record of Appeal:
“The plaintiffs want us to believe that Exhibit A is the original certificate of occupancy for the property in dispute – No. 48, Railway Bye-Pass High Level Makurdi. The PW2 wants us also to believe that Exhibit A is the certificate of occupancy for holding No. 78 Wailomayo West. That is the purport of Exhibit I. The plaintiffs are therefore up to some mischief. On theface of Exhibit A holding No.22 was cancelled and in its place 78 was inserted in red ink. The dirty job was not professionally executed. The alteration was not initialed. The schedule to Exhibit A was left intact. It still carries holding no.22. The implication of the alteration on Exhibit A and the other evidence of the plaintiffs, including Exhibit 1, is that 48, Railway Bye pass High level is also known as Plot 78 Wailomayo West. These pieces of evidence therefore contradict Exhibit J wherein the original owner of the property had stated that 48, Railway Bye pass, High level is also known as Plot No. 269, High level, Makurdi. Exhibit 1 (Items 27(A) and (B) thereof) suggests that certificates of occupancy for plot No. 269 Wailamayo West and plot No. 78 Wailamayo West were among the items to be handed over to Gabriel T. Ukoh by Tivfah Valentine Ukoh. From the endorsement on Exhibit 1, the handing over and taking over were inconclusive because the certificate of occupancy for plot no. 76 Otukpo Road, High Level Makurdi and 48 Railway Bye pass. High level Makurdi were absent. That endorsement clearly shows that the original certificate of occupancy for No.48Railway Bye pass, was not seen. None of the makers of the Exhibit I testified. Between Exhibits A and I, on the one hand, and Exhibit J on the other; Exhibit J is more authentic. The late Pa Joseph Hembe Ukoh had stated in Exhibit J that No. 48 Railway High Level, is also plot no. 269 High Level. I do not think Plot 78 Wailamayo West is also the disputed property. Exhibit A, in my considered opinion is not the certificate of occupancy for the disputed property No. 48 Railway Bye-Pass. I believe the makers of Exhibit I did not find or see the certificate of occupancy for No. 48 Railway Bye-Pass, High Level Makurdi. I do not believe that the plaintiffs found that certificate of occupancy. The alteration on the Exhibit A appears to be an attempt to fill the lacuna.
In view of the foregoing, I hold, therefore that the disputed property at No.48 Railway Bye-Pass High Level, Makurdi is neither plot no 22 Wailamayo West nor holding No.78 Wailamayo West.
The first relief in the writ and statement of claim is couched in this misconception that the disputed property is synonymous with plot 22 or holding No. 78 Wailamayo West (High Level) Makurdi”.
The trial Court found that the original certificate of occupancy relating to No 48 Railway Bye-Pass was not part of the items transferred to the new family head, Gabriel Ukoh because his predecessor, Zachary A.V. Ukoh did not manage the property as family property on behalf of Joseph Hemba Ukoh family. The property in dispute was already a gift inter vivos in favour of the 2nd defendant. It therefore no longer formed part of the estate of late Pa Joseph Hemba Ukoh.
The Appellants’ Counsel referred to the finding of the learned trial Judge at page 290 of the Record of Appeal. I note that learned Counsel for the Appellants excised part of the finding of the learned trial Judge to contend that the lower Court made a finding that the property devolved on the 2nd defendant upon the death of their father thereby eliminating the possibility and incidences of a gift inter vivos. However, this was by no means the finding of the learned trial Judge. On the contrary, the learned trial Judge, found as follows:
“Exhibit Q seems to me to answer that the disputed property had devolved to the 2nd defendant upon the death of the original owner – their father. The family head, Zachary A.V. Ukoh had infact, by Exhibit Q, not alienated any family property. He had only thereby confirmed that the 2nd defendant was the rightful person or member of the family to succeed in-title to the original occupier, Joseph HembaUkoh. The issue of the gift, inter vivos of the disputed property which I believe has buttressed Exhibit Q. At the risk of repetition: I hold firm opinion that Joseph HembaUkoh had alienated, by a gift in his lifetime, his right of occupancy or interest in the property at 48, Railway Bye-Pass to the 2nd defendant.”
I see no reason to disturb the finding and conclusion of the learned trial Judge. The evidence before the trial Court revealed that the elements that ground a gift inter vivos were all present. The gift inter vivos was made by late Pa Joseph HembaUkoh to his son, the 2nd defendant, in the presence of his eldest son, Zachary A.V. Ukoh and his daughter, Mrs. Kate AmaOdunsi, DW3. The 2nd defendant was put in possession. He accepted the gift and commenced renovations and improvements on the property. Late Pa Ukoh also handed over the document of title to the 2nd defendant. Forthese reasons, upon the demise of late Pa Ukoh, the disputed property was no longer part of his estate. See: Ayinke v. Ibidunni (supra); Orido v. Akinlolu (supra); Enadeghe v. Eweka (supra); Davies v. Rahman-Davies & Anor (supra); Olajide v. Akinboboye (supra).
The learned trial Judge comprehensively considered and evaluated the evidence adduced by the parties and arrived at conclusions that I see no reason to disturb. Issue 2 is therefore resolved against the Appellants.
Issue 3
On this Issue, the Appellants contend that due process was not followed by the 3rd – 5th Respondents before a new certificate of occupancy was issued over the disputed property, No. 48 Railway Bye Pass, Makurdi. Prior to the application by the 2nd defendant for conversion of the title to the property in dispute, the title was vested in Pa Joseph HembaUkoh. No document accompanied the application of the 2nd defendant for conversion to show how title transited to him. The 3rd – 5th defendants relied on Exhibit Q, written by Zack A. V. Ukoh to process and issue a new certificate of occupancy in the name of the 2nd defendant. It was argued that Exhibit Qought not to be authority to rely on by the 3rd – 5th Respondents. What the 3rd – 5th defendants did was change of title or ownership. In processing change of title or ownership, the new owner must supply evidence of how he acquired the property or how he became entitled to be recognized as owner for title to be processed in his name. The 2nd defendant who said the property was gifted to him by the original owner ought to have presented evidence of the gift and that pursuant to that gift the land in dispute ceased to be a family property. Reliance was placed on Onobruchere v. Esegine (1986) 1 All NLR (pt. 1) 238 at 243.
DW4 who testified for the 3rd – 5th defendants, said they relied on Exhibit Q. It was argued that Exhibit Q was evidence of an inheritance and not a gift. The Court was urged to hold that due process was not followed in the issuance of the Certificate of Occupancy No BNB 1962 and a fortiori, same was a nullity, liable to be set aside. The Court was urged to hold that a certificate of occupancy issued without due process of law is a nullity and conveys nothing, citing Attah v. Ezeannah (2001) FWLR (pt. 48) 1489 at 1510;Ezeannah v. Attah (2004) FWLR (pt. 202) 1858 at 1883.
For the 1st and 2nd Respondents, it was argued that due process was followed in the issue of the Certificate of Occupancy. The evidence of DW4 was relied on. It was submitted that the evidence before the trial Court, which was unshaken in cross examination, was that there was a gift of the said property in the presence of two witnesses, DW1 and late Zack A.V. Ukoh, who wrote Exhibit Q to 3rd – 5th Respondents. The handing over the Local Government Certificate of Occupancy to the 2nd Respondent by late Pa. Joseph Hemba Ukoh signified the finality of the gift entitling Stephen Ukoh to manage and treat the property as his personal estate. It was further argued that Exhibit Q was an answer in terms of Exhibit P written by the 3rd – 5th Respondents. Notwithstanding the use of the word “inherit” in the Exhibit Q, the said letter was sufficient to confirm the authority or right of the Applicant over Plot 48 Railway Bye-pass High Level Makurdi. It was also in evidence that the Respondents aside from Exhibit Q produced evidence of loss of the original certificate which Pa Ukoh handed over to him. The Court was urged to hold that the 3rd-5th Respondents followed due process in creating Certificate No. BNB 1962 and therefore it was not a nullity. The Court was urged to resolve this issue against the Appellants and dismiss the entire appeal.
For the 3rd – 5th Respondents it was submitted that they followed due process and exercised diligence in the issuance of a subsequent certificate of occupancy No BNB 1962 over the property situate at No 40 Railway Bye-Pass High Level, Makurdi in favour of the deceased 2nd defendant. The Respondents had already argued that the property in issue was a gift inter vivos to the 2nd defendant by his father Pa Ukoh. Once a gift has been validly made, it cannot be revoked in the absence of fraud, mistake, misrepresentation or other invalidating cause; Imah v Okogbe (1993) 12 SCNJ 57 at 71. After the property was gifted to the 2nd defendant, he applied to the then Bureau of Lands and Survey to convert the Customary Right of Occupancy issued by Makurdi Local Government in the name of Pa Ukoh to a State grant in his own name. The Bureau in the course of processing the conversion wrote Exhibit P to 2nd defendant to which the eldest familymember, Zachary, wrote Exhibit Q in response, stating unequivocally that the 2nd defendant was the proper person to inherit the disputed property to the exclusion of other Ukoh family members. Certificate of Occupancy No BNB 1962 was then issued to the 2nd defendant. It was submitted that the case of Attah v Ezeanah (supra) was not applicable herein. The Court was urged to dismiss the appeal.
Resolution
It has been settled that the disputed property was a gift inter vivos made to the 2nd defendant, now substituted by the 1st and 2nd Respondents. Late Pa Ukoh gave the document of title to the 2nd Respondent. The 2nd Respondent as DW3 said he lost the original Certificate of Occupancy issued by the Local Government and made a report to the police. Exhibits N and O were the Affidavit of loss of items and Extract from Police Station Diary. The 2nd defendant applied for a conversion of the Local Government Certificate of Occupancy to a Statutory Certificate of Occupancy, attaching Exhibits N and O.
In order to confirm the authenticity of his application for change of title, the Bureau of Lands and Survey, 5th Respondent, wrote Exhibit P demanding that the 2nd defendant produce either letters of Administration or “a letter from the eldest person from your family indicating that you are the proper person to inherit the said property”. DW3 said in evidence that he chose the latter option and approached Zachary Ukoh, who was his eldest brother and the head of the family. Zachary Ukoh responded by writing Exhibit Q. The learned trial Judge had reproduced portions of Exhibit Q as follows, page 271 of the Record of Appeal:
“I, Mr. Zachary A.V. Ukoh – write in my capacity and status as the eldest of the surviving sons of the late J. H. Ukoh to confirm and affirm that by our late father’s wishes, my junior brother, Mr. Stephen O. Ukoh, is the person within our family that is lawfully entitled to inherit the property which is the subject of his application to your good selves. By this confirmation, I wish to state further, for avoidance of doubt, that no other member of the family can validly lay claim to the said property. You are therefore, free to favourably treat Mr. S.O. Ukoh’s application for conversion and issue the new title deed in his name”.
I agree with Counsel for the Respondents that aclose scrutiny of the contents of both Exhibits P and Q would reveal that Mr. Zack replied in terms of the demands of Exhibit P which requested him to confirm who was entitled to “inherit” the disputed property, upon discovering that Pa Ukoh was dead. The use of the word inherit did not detract from the reality of the gift inter vivos. Further, the gift intervivos, completed with delivery of possession, was a transfer of ownership of the land to the 2nd defendant and extinction of the rights of those who claim through or under the donor, Pa Ukoh; Ekpa & Ors v. Utong & Ors (supra). The disputed property was consequently no longer part of the estate of late Pa Ukoh.
The 3rd – 5th Respondents thus followed due process in the issuance of Certificate of Occupancy No BNB 1962 over No 48 Railway Bye-Pass, Makurdi, in favour of the 2nd defendant. Issue 3 is resolved against the Appellants.
All Issues formulated for determination have therefore been resolved against the Appellants. I see no merit in this appeal. It fails and is hereby dismissed.
The Respondents are entitled to costs, which is assessed as follows: N100,000.00 to the 1stand 2nd Respondents and N100,000.00 to the 3rd – 5th Respondents.
IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, HON. JUSTICE O.A. OTISI, JCA; and I am in complete agreement with his reasoning and conclusion reached resolving all the Issues formulated for determination in favour of the Respondents.
On the whole, this appeal lacks merit and is dismissed. I hereby affirm the judgment of the learned trial Judge.
I also abide by the Order(s) as to cost of this Appeal.
JOSEPH EYO EKANEM, J.C.A.: I read before now the judgment or my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein. I therefore dismiss the appeal for being unmeritorious. I abide by the order as to costs In the lead judgment.
Appearances:
D.M. Tservende, Esq.For Appellant(s)
R.O. Adakole, Esq., with him, U.P. Ogo, Esq. – for 1st and 2nd Respondents
S.T. Suleh, Esq., Ag. Director, Legal Drafting, Ministry of Justice, Benue State – for 3rd – 5th RespondentsFor Respondent(s)
