MOHAMMED v. TIJANI (2021)

MOHAMMED v. TIJANI

(2021)LCN/15197(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/MK/23/2020

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DAUDA MOHAMMED APPELANT(S)

And

AMINU TIJANI RESPONDENT(S)

RATIO

INTERPRETATION OF SECTIONS 102, 89 AND 90 OF THE EVIDENCE ACT, 2011 AS TO THE FORM OF THE SECONDARY EVIDENCE OF A PUBLIC DOCUMENT THAT CAN ADMISSIBLE IN EVIDENCE

Now upon the provisions of Section 102 of the Evidence Act, 2011: The following documents are public documents – a) Documents forming the official acts or records of the official acts of – i. The sovereign authority, ii. Official bodies and tribunals, or iii. Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and b) Public records kept in Nigeria of private documents. Section 89 particularly paragraphs (e) and (f) of the Evidence Act (supra) provides as follows: Secondary evidence may be given of the existence, condition or contents of a document when – e) the original is a public document within the meaning of Section 102; f) the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence; Finally, Section 90 particularly paragraph (c) thereof provides thus: 90 (1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows – (c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible; A community construction of the foregoing sections of the Evidence Act, 2011 shows that Exhibits A1 – 4 and B1 – 4, all fall within acts or records kept by public officers as envisaged by Section 102 of the Evidence Act (supra). For them to be admissible in Court being secondary evidence, it is imperative that they be certified as true copy or copies of the original documents, failing which they are rendered inadmissible in evidence and as contemplated by the foregoing provisions of Section 90(1)(c) of the Evidence Act (supra). The words of Sections 102, 89 and 90 of the Evidence Act, 2011 are so clear and unambiguous that they need no other interpretation than the natural meaning ascribable to them. See Buhari vs. Yaro (2018) 29 WRN. SC. 1 – 178 at 68 where the Supreme Court held as follows: The settled position by this Court is that where the words of a Statute or Constitution are clear and unambiguous, there calls for no interpretation, the duty of the Court in such circumstances being to apply the words as used by the legislature. See further INEC vs. Asuquo (2018) 39 WRN. 61 SC., Skye Bank Plc. vs. Iwu (2018) 6 WRN 1; Aromolaran vs. Agoro (2016) 19 WRN SC. 99; and Udo vs. State (2016) 34 WRN 60 SC. Section 89(e) and (f) thereof, leaves the Court with no power or discretion to admit Exhibits A1-4 and B1-4 in evidence, given the fact that they are neither the original documents nor are they certified to be true copies of the original documents. The lower Court was thus in grave error admitting the said exhibits in evidence at the time he did. However, in the recent past when this Court found itself in a similar situation in the case of Taylek Drugs Coy. Ltd. vs. Omankpa (2019) 3 WRN. 1 – 188 at 137, it held as follows: …. secondly, the law is trite that a Court of law cannot countenance or act upon legally inadmissible evidence, even where it has been admitted in evidence without objection or by the consent of both parties. Exhibits DW16, DW17 and DW21 are evidently and unarguably unsigned and undated documents, thus the lower Court was on solid ground when it declined to place any weight or act on them and instead expunged same from its records. See Section 94 (1) Evidence Act; Omega Bank Ltd. vs. OBC Ltd. (2006) 4 WRN, 1 and several others. (Underlining mine for emphasis). PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW REGARDING THE BURDEN PLACED ON THE PLAINTIFF IN DECLARATORY ACTION SUCCEED ON THE STRENGTH OF HIS CASE AS OPPOSED TO THE WEAKNESS OF THE ADVERSE OR DEFENCE PARTY

Now, the hard and cold fact as settled in law concerning declaratory action is that the plaintiff has the burden of succeeding based on the strength of his case as opposed to the weakness of the adverse or defence party. In the case of Okam vs. Igwe(2018) 25 WRN. CA., 109 at 115, this Court made it clear that: … in a suit for declaration of title, the onus lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendant’s case. Again, in the case of Osundina vs. Awoyale (2018) 24 WRN CA., 110 at 113, this Court also ruled that: In a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. See further the authorities of Dumez Nig. Ltd. vs. Nwakhoba (2008) 18 NWLR Pt. 1119 Pg. 361; Wallersteiner vs. Moir (1974) 3 All ER 217; Chukwumah vs. Shell Petroleum (1993) 4 NWLR Pt. 289, Pg. 512; Metzger vs. Department of Health and Social Security (1977) 3 All ER 444 at 451; Ogolo vs. Ogolo (2006) All FWLR Pt. 313, Pg. 1 at 13-14; (2006) 5 NWLR Pt. 972, Pg. 163 at 184, paras. D-E; and CPC vs. INEC (2011) LPELR-8257(SC), where the Supreme Court enjoined the Courts as follows: The law however is trite as rightly found by the Court of Appeal in its judgment that a plaintiff like the Appellant in this case claiming declaratory reliefs, must rely on the strength of his own case and not on the weakness of the defence. This principle of law applies not only where the Defendant calls no evidence which is the main complaint of the Appellant in the present case but even where there is admission of the Plaintiff’s case by the Defendant. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW REGARDING MEANS BY WHICH TITLE TO PROPERTY CAN BE PROVED

The law is settled that for the plaintiff/appellant, who is in quest of a declaratory relief in the subject matter to succeed, he was duty bound to lead credible and substantial evidence. This is the pivot of the decision in Solomon vs. Daisi Olatunji (2016) 33 WRN. 46, where the Court reiterated the means by which title to property can be proved to include as follows: Title to property must be proved by one of five ways to wit – a. By traditional evidence; b. By production of title documents duly authenticated; c. Acts of ownership extending over a sufficient length of time and positive enough to warrant an inference that the person is the true owner of the land; d. By acts of long possession and enjoyment of the land; and e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in addition be the owner of the land in dispute. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CONDITION FOR THE INTERFERENCE OF THE APPELLATE COURT WITH THE FINDINGS OF FACTS MADE BY THE TRIAL COURT

Having considered the totality of the evidence adduced and placed by both parties on the imaginary scale of justice, it goes without equivocation that the respondent’s case which was rightly preferred by the learned trial Judge, is imbued with probative value over and above the empty case of the appellant. The respondent’s case duly accords with the long standing tested and tried decision in Idundun vs. Okumagba (supra). This Court is therefore forbidden from disturbing or upsetting the unassailable findings of facts by the trial Judge who additionally, had the privilege to watch and assess the demeanour and veracity of the witnesses. See the decision of this Court in Olasupo vs. Morakinyo (2013) LPELR-20537(CA), per Jombo-Ofo, JCA, where I found and held as follows: It is settled that findings of facts are peculiarly within the competence of the trial Court. Also, the evaluation and appraisal of evidence arising therefrom and the ascription of probative values thereto remain the primary function of the trial Court. However, the appellate Court steps in to interfere with the findings and evaluation when they are shown to be perverse. SeeBamgboye vs. University of Ilorin (1999) 10 NWLR (pt. 622) 290 at 332; and Iwelegbu vs. Ezeani (1999) 2 NWLR (Pt.630) 266 at 280. An appellate or intermediate Court such as this, will interfere with the findings of fact of the lower Court where the latter fails to make a correct assessment of the evidence before it or where there has been an erroneous appraisal of facts leading to erroneous conclusions. See Ojo vs. Adeleke (2002) 8 NWLR (pt. 868) 223, 231-232 paras. G-D; Cameroon Airlines vs. Otutuizu (2011) 4 NWLR (Pt.1238) 512; Rabiu vs. Amadu (2013) 2 NWLR (Pt. 1337)36-41; and State vs. Ajie (2000) 3NSCQR 54, per S. U. ONU, JSC. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is a fall out from the Judgment of the High Court of Justice of Nasarawa State, holden at Mararaba, Gurku (hereinafter the lower/trial Court), presided over by Hon. Justice Haruna A. Offo, J., in suit No. NSD/MG/177/2017, delivered 21st November, 2019.

At the lower Court, the plaintiff therein who before us is the appellant by way of a writ of summons issued 21st September, 2017 made the following claim against the defendant herein the respondent:
1) A DECLARATION that MOHAMMED INDAKWO, the plaintiff’s father is the rightful next of kin to late YUSUF BAMEYI NDAKWO having been granted letters of Administration of the said properties from the FCT High Court.
2) A DECLARATION that DAUDA MOHAMMED, the plaintiff, is the legal and equitable owner of the properties situate at Along Kawu Ring Road Angwan Muazu, Karu Local Government Nasarawa State, having inherited same from his father.
3) AN ORDER of perpetual injunction, restraining the defendant himself, heirs, servant, agents, Attorneys, privies, or any person however from going

into the said properties.
4) AN ORDER directing the payment of ONE MILLION NAIRA (1,000,000.00) (sic) only by the defendant to the plaintiff being general damages for trespass and continuous trespass. (See pages 2 and 7 respectively of the record of appeal).

Upon being served with the originating processes, the defendant filed his statement of defence on 20th October, 2017 and same was served on the plaintiff on 23rd October, 2017. With the completion of exchange of pleadings and joining of issues by the parties, hearing commenced with the plaintiff testifying as the PW1 and one Zuwaira Mohammed as the PW2 with exhibits tendered and marked Exhibits A1-4 and B1-4 respectively. While the PW1 was fully cross examined, the PW2 was not present for cross examination claiming threat to his life as the reason. Plaintiff thus closed his case while the defence opened with the defendant as the DW1 and one Muktar Tijani as the DW2. Both witnesses were duly cross examined and exhibits marked C, D, E, F, G1-3, H1-3, I1-3, J1-3, K1-3, L, M, and N respectively were admitted in evidence. Parties subsequently filed, exchanged and adopted their final written

addresses.

In his considered judgment rendered 21st November, 2019, the learned trial Judge dismissed the plaintiff’s claim. (See pages 130 – 136 of the record of appeal).

Disturbed by the said judgment, the plaintiff as appellant filed a 4 – Ground Notice of Appeal on 29th November, 2019. (See pages 137 – 140 of the record of appeal). The record of appeal was compiled and transmitted to this Court on 13th February, 2020.

In compliance with the rules and practice of the Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief dated 4th March, 2020 and filed 5th March, 2020 was settled by Isa M. Iliyasu, Esq., while the respondent’s brief dated 4th April, 2020 and filed 7th April, 2020 was settled by Mrs. Rekia Rachael Adejo-Andrew.

From the 4 (four) grounds of the Notice of Appeal, the appellant crafted the following 3 (three) issues for consideration:
1. Whether the learned trial Judge was right when he held that the subject matter of the suit has been gifted to the respondent in the absence of any evidence to that effect. (Distilled from grounds 1 and 3).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether the trial Judge was right when he held that Exhibit A1-4 and B1-4 are not admissible at the time they were tendered and admitted by the Court. (Distilled from ground 2).
3. Whether the trial Judge was right when he refused and neglected to give effect to the contradiction in the evidence of DW1 and DW2 and the content of Exhibit “N” in particular. (Distilled from ground 4).

The respondent adopted the 3 (three) issues as articulated above by the appellant and responded to them accordingly.

I feel compelled by necessary implication to commence the determination of this appeal with issue 2 (two) thus making it come first, while issue 1 (one) as it appears above becomes issue 2 (two) instead and then on to issue 3 (three).

ISSUE 1 (ONE)
Whether the trial Judge was right when he held that Exhibits A1-4 and B1-4 are not admissible at the time they were tendered and admitted by the Court.
Appellant submits herein that the learned trial Court was not right when he held that Exhibits A1 – 4 and B1 – 4 were not admissible at the time they were tendered and admitted by it. He submitted that Exhibit A1-4

are photocopies of letter of administration granted the appellant’s late father, while Exhibit B1-4 are copies of Application for grant of right of occupancy in respect of the subject matter of the suit and other title documents. Appellant contended that he, in compliance with the provisions of Section 91 (c) of the Evidence Act, gave notice to the respondent to produce the said documents which he fraudulently took possession of. See paragraph 15 of the statement of claim. Counsel noted that there was no objection to the admissibility of the documents as Exhibits at the trial Court and the Court did not raise any observation suo motu thereby admitting them in evidence. He submitted that the question that may arise here is whether Exhibits A1-4 and B1-4 are relevant to the determination of the case; and that the answer is in the affirmative just the way the trial Judge agreed with the appellant in admitting them as Exhibits.
Counsel for the appellant urged that we resolve this issue in his favour.

The respondent in the reverse submitted that the trial Court was absolutely right when it held that Exhibits A1-4 and B1-4 were not admissible at the

time they were tendered and admitted by the Court. The learned counsel to the respondent referred the Court to the provisions of Sections 102, 89(e) and (f); and 90 of the Evidence Act and canvassed that touching on Exhibits A1-4 and B1-4 which are public documents, that either the original documents thereof or their certified true copies are admissible in evidence. He contended that with the established facts that Exhibits A1-4 and B1-4 are public documents, neither the trial Court nor this Court is left with the discretion to admit same in evidence without certification. Counsel relied on the cases of Aromolaran vs. Agoro (2016) 19 WRN. 99 SC., and Taylek Drugs Co. Ltd. Vs Omankpa (2019) 3 WRN, 1 – 188 at 137 to support the action of the lower Court in expunging Exhibits A1 – 4 and B1 – 4 from the records because they were inadmissible evidence as at the time they were tendered. He urged on us to resolve the issue in favour of the respondent.

RESOLUTION OF ISSUE 1 (ONE)
Exhibits A1 – 4 as admitted by the parties are photocopies of the letter of administration granted the appellant’s late father by the High Court of

FCT, while Exhibits B1 – 4 include copies of Application for grant of Right of Occupancy and some other title documents issued by the Nasarawa State Ministry of Lands and Survey all in relation to the subject matter of the action. To the extent that the foregoing facts are admitted by both sides, they need no further proof. See NNPC Pensions Ltd. vs. Vita Construction Ltd. (2016) 47 WRN. CA., 142; Andony vs. Ayi ii (2004) All FWLR Pt.227, pg. 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR Pt.386, pg. 704 at 747; and Olale vs. Ekwelendu (1989) 7 SCNJ Pt.2, pg. 62 at 102.

The case of the instant appellant is that the originals of Exhibits A1 – 4 and B1 – 4 were with the respondent and that they served a notice on the said respondent to produce the said originals which he fraudulently took possession of. (See particularly paragraph 15 of the statement of claim).

tribunals, or
iii. Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
b) Public records kept in Nigeria of private documents.

Section 89 particularly paragraphs (e) and (f) of the Evidence Act (supra) provides as follows:
Secondary evidence may be given of the existence, condition or contents of a document when –
e) the original is a public document within the meaning of Section 102;
f) the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;
Finally, Section 90 particularly paragraph (c) thereof provides thus:
90 (1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows –
(c) in paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible;
A community construction of the foregoing sections of the Evidence Act, 2011 shows that Exhibits A1 – 4 and B1 – 4, all fall within acts or records kept by public officers as envisaged by

Section 102 of the Evidence Act (supra). For them to be admissible in Court being secondary evidence, it is imperative that they be certified as true copy or copies of the original documents, failing which they are rendered inadmissible in evidence and as contemplated by the foregoing provisions of Section 90(1)(c) of the Evidence Act (supra).
The words of Sections 102, 89 and 90 of the Evidence Act, 2011 are so clear and unambiguous that they need no other interpretation than the natural meaning ascribable to them. See Buhari vs. Yaro (2018) 29 WRN. SC. 1 – 178 at 68 where the Supreme Court held as follows:
The settled position by this Court is that where the words of a Statute or Constitution are clear and unambiguous, there calls for no interpretation, the duty of the Court in such circumstances being to apply the words as used by the legislature.
See further INEC vs. Asuquo (2018) 39 WRN. 61 SC., Skye Bank Plc. vs. Iwu (2018) 6 WRN 1; Aromolaran vs. Agoro (2016) 19 WRN SC. 99; and Udo vs. State (2016) 34 WRN 60 SC.
Section 89(e) and (f) thereof, leaves the Court with no power or discretion to admit Exhibits A1-4 and B1-4 in evidence, given

the fact that they are neither the original documents nor are they certified to be true copies of the original documents. The lower Court was thus in grave error admitting the said exhibits in evidence at the time he did. However, in the recent past when this Court found itself in a similar situation in the case of Taylek Drugs Coy. Ltd. vs. Omankpa (2019) 3 WRN. 1 – 188 at 137, it held as follows:
…. secondly, the law is trite that a Court of law cannot countenance or act upon legally inadmissible evidence, even where it has been admitted in evidence without objection or by the consent of both parties. Exhibits DW16, DW17 and DW21 are evidently and unarguably unsigned and undated documents, thus the lower Court was on solid ground when it declined to place any weight or act on them and instead expunged same from its records. See Section 94 (1) Evidence Act; Omega Bank Ltd. vs. OBC Ltd. (2006) 4 WRN, 1 and several others. (Underlining mine for emphasis).

The lower Court in the vein of the foregoing authorities did what was legally permissible in the situation, which was to expunge Exhibits A1 – 4 and B1 – 4 from the records,

upon his discovery that he wrongly admitted them in evidence at the time they were tendered. It is immaterial that the learned counsel for the respondent did not object to their admissibility. We therefore hold in answer to issue 1 (one), that the trial Judge was right to hold that Exhibits A1–4 and B1 – 4 were not admissible at the time they were tendered and admitted in evidence and that the Court took the right steps by expunging same from the records of the Court. The issue accordingly is resolved in favour of the respondent and against the appellant.

ISSUE 2 (TWO)
Whether the learned trial Judge was right when he held that the subject matter of the suit has been gifted to the respondent in the absence of any evidence to that effect.
In arguing this issue, the appellant submits that he had led credible and an unchallenged and uncontradicted evidence. He cited paragraphs 2, 3, 4 and 5 of the statement of defence as being in tandem with his case. Appellant submitted that his entitlement to the property in question is through his own late father, who was the next of kin to the appellant’s late uncle and that his said

late father was equally granted letter of administration to the late uncle’s property since he died intestate. That having agreed that the plaintiff/appellant has traced his title to his late father, the trial Judge could not have gone ahead without contrary evidence to suo motu bequeath the said property to the defendant/respondent. See Emodi vs. Emodi (2015) 2 NWLR Pt. 1443, pg. 323 at 346, paras. F-H.

Appellant argued that Exhibits A – N tendered by both parties did not in any way suggest that the subject matter of the suit was willed or transferred to the respondent, rather both parties are in agreement that the appellant is the biological “SON” of the deceased. He canvassed that the respondent’s inability to place any document before the trial Court is detrimental to his defence, more so as he the respondent could not even name the actual hospital or place where the person he claimed that willed the property to him died. See paragraph 2 of the DW2’s statement on oath. Appellant went further to contend that the findings of the trial Court that the appellant cannot succeed in his action, is perverse and as such

occasioned a miscarriage of justice. See Ladunni vs. Wema Bank Ltd. (2011) 4 NWLR Pt. 1236, pg. 44 at 62, paras. C-G., per Ogunbiyi, JCA (as he then was); and Enadeghe vs. Eweka (2014) LPELR-24479(CA) 21-22, Para. E, wherein this Court held:
A gift inter vivos must be made openly. There must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses under native law and custom.

Appellant canvassed that in view of the contradictions and the position as spelt out above, we are to resolve the issue in favour of the appellant more so as the Court is not a father Christmas and cannot give what was not asked for.

In response thereto, the respondent submitted that the learned trial Judge was right in his conclusion after a careful evaluation of the evidence before him, that the property in issue was gifted to the respondent by the late owner, his uncle Yusuf Ndakwo and the gift cannot be disturbed by this Court. Counsel to the respondent stated the obvious which is, that the law requires the appellant to succeed on the strength of his own case by leading very credible and convincing evidence as to his root of

title and that he cannot succeed on the supposed admission of the respondent. See Solomon vs. Daisy-Olatunji (2016) 33 WRN. 46, where the Court re-established the means by which title to property can be proved. See further Angough vs. Uga (2018) 27 WRN, 1-175; Emenike vs. PDP (2012) LPELR-SC 443/2011; Idundun vs. Okumagba (2000) 20 WRN, 127; and Salisu vs. Mobolaji (2017) 10 WRN 1; (2016) 15 NWLR Pt. 1535, pg. 242., upon which the respondent contended that the attempt by the appellant to lay claim to the subject matter through the fact that his late father Mohammed Ndakwo was the Next of Kin and Administrator of the late Yusuf Ndakwo, save by any of the five established means of proving title, has failed woefully. Respondent submitted that the appellant’s argument that the respondent admitted to the fact that he, the appellant is the son of Mohammed Ndakwo is enough admission of his claim and that on that ground, the trial Court was duty bound to accept his case as proved and so grant his prayers, is not only misleading but mischievous and misconceived.

RESOLUTION OF ISSUE 2 (TWO)
I deem it pertinent to recap the fact that the relief sought by

the plaintiff/appellant is first and foremost a declaration that he is the legal and equitable owner of the subject matter of the action by reason of inheritance from his father, one Mohammed Ndakwo.

That the late Mohammed Ndakwo was the father of the appellant and at the same time the younger brother to late Yusuf B. Ndakwo who died intestate on 10th April, 2003, is not contested. However, the thorny issue is, who, between the appellant and the respondent is entitled to inherit the intestate property of late Yusuf Bamayi Ndakwo, given the evidence before the Court. The plaintiff/appellant had by his action at the lower Court, sought a declaration of entitlement to the property by way of inheritance through his late father Mohammed Ndakwo, who was in his life time the next-of-kin to Yusuf B. Ndakwo and to whom a letter of administration over the property was granted since the said Yusuf Ndakwo died intestate.

Okam vs. Igwe(2018) 25 WRN. CA., 109 at 115, this Court made it clear that:
… in a suit for declaration of title, the onus lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendant’s case.
Again, in the case of Osundina vs. Awoyale (2018) 24 WRN CA., 110 at 113, this Court also ruled that:
In a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought.
See further the authorities of Dumez Nig. Ltd. vs. Nwakhoba (2008) 18 NWLR Pt. 1119 Pg. 361; Wallersteiner vs. Moir (1974) 3 All ER 217; Chukwumah vs. Shell Petroleum (1993) 4 NWLR Pt. 289, Pg. 512; Metzger vs. Department of Health and Social Security (1977) 3 All ER 444 at 451; Ogolo vs. Ogolo (2006) All FWLR Pt. 313, Pg. 1 at 13-14; (2006) 5 NWLR Pt. 972, Pg. 163 at 184, paras. D-E; and CPC vs. INEC (2011) LPELR-8257(SC), where the Supreme Court enjoined the

Courts as follows:
The law however is trite as rightly found by the Court of Appeal in its judgment that a plaintiff like the Appellant in this case claiming declaratory reliefs, must rely on the strength of his own case and not on the weakness of the defence. This principle of law applies not only where the Defendant calls no evidence which is the main complaint of the Appellant in the present case but even where there is admission of the Plaintiff’s case by the Defendant.

In the bid to establish his case, the appellant canvassed that he is the next-of-kin to his late father (Mohammed Ndakwo) who prior to his demise was the next-of-kin of his late brother (Yusuf B. Ndakwo) who in turn was the original owner of the subject matter of the suit, and that the Court cannot turn around in the absence of any contrary evidence or substitution of the next-of-kin to deny him of the entitlement.

WRN. 46, where the Court reiterated the means by which title to property can be proved to include as follows:
Title to property must be proved by one of five ways to wit –
a. By traditional evidence;
b. By production of title documents duly authenticated;
c. Acts of ownership extending over a sufficient length of time and positive enough to warrant an inference that the person is the true owner of the land;
d. By acts of long possession and enjoyment of the land; and
e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of the land in addition be the owner of the land in dispute.

Save as enumerated above, it does not take the status of a next-of-kin simpliciter, to acquire title or customary right over the immovable property of a deceased such as Yusuf Mohammed who died intestate. The learned trial Judge rightly hit the essence in his judgment when he held inter alia as follows:
Plaintiff’s father was made the next-of-kin to his late uncle because he was the nearest of kindred to him. This did not translate into bequeathing his property to him as the

Plaintiff would want the Court to hold. That he also applied for and obtained letters of administration over his late brother’s properties did not also elevate him to the status of a legal or customary owner of the properties. That being the case, plaintiff in this case who based his claim on these assertions cannot also succeed without concrete proof of bequeathal to his late father, which he has failed to establish. (See page 134 of the record of appeal).

Again, in the case of Joseph vs. Fajemilehin (2012) LPELR-9849(CA) 34, paras. A-B., Ejembi Eko, JCA. (as he then was, now JSC.), noted the definition of “Next-of-kin” to be the person declared to be the nearest of kindred to the declarant. See Black’s Law Dictionary and Chambers 20th Century English Dictionary.”

With the clear position of the law that next-of-kinship simpliciter, will not guarantee a bequeathal of an intestate deceased’s property upon the person who claims to be the next-of-kin to the said deceased, it follows that appellant’s father by being the next-of-kin to his late intestate brother, thereby inherited nothing of his said late brother’s

(Yusuf Ndakwo) estate. A fortiori, the appellant himself who is claiming equitable entitlement through his late father (Mohammed Ndakwo), over the same property, would likewise have nothing; more so as no one gives what he/she does not have. Not even the purported letter of administration (Exhibits A1-4) and the copy of application for customary right of occupancy (Exhibits B1-4), which though admitted in error by the lower Court and were subsequently expunged from the records, would have made any difference to the appellant’s case. Thus, the appellant who latched on to his next-of-kinship as well as Exhibits A1-4 and B1-4 which were rightly expunged from the record, indeed hung on to nothing. This is to say that he went off tangent, having not satisfied any of the factors enumerated in the case of Solomon vs. Daisi Olatunji (supra), which are the acceptable ways of proving title to land. As it were, the appellant has failed to lead credible and cogent evidence to prove his case. This is in the light of the authority of Ifediora vs. Okafor (2019) 44 WRN. 1 –188 at 81, where the ultimate Court of the land held that title to land can only be

established by positive proof through one of the five ways as already stated above.

Now on the other side of the imaginary scale is the case of the respondent. The respondent in line with Enadeghe vs. Eweka (supra), led evidence as the DW1 and together with the DW2, they made the case that the subject matter was a gift inter vivos by the deceased uncle (Yusuf Ndakwo), to the respondent and in the presence of the DW2. Exhibits C – M which were tendered and admitted in evidence are the original title documents of the property and they were handed over to the respondent by the deceased intestate. The respondent has since then been in undisturbed and peaceful possession of the property. These facts were unchallenged and uncontroverted by the appellant hence they are deemed established. The facts equally pare away the submission of the appellant to the effect that the trial Judge pronounced the gift to be inter vivos, even when there was no evidence of transfer of title documents from the late Yusuf Ndakwo to the respondent. The gifting of the property was exhibited by the physical handing over of the original title documents which include Exhibits C

– M, from Yusuf Bamayi Ndakwo on his sick bed, to the respondent.

with the findings and evaluation when they are shown to be perverse. SeeBamgboye vs. University of Ilorin (1999) 10 NWLR (pt. 622) 290 at 332; and Iwelegbu vs. Ezeani (1999) 2 NWLR (Pt.630) 266 at 280.
An appellate or intermediate Court such as this, will interfere with the findings of fact of the lower Court where the latter fails to make a correct assessment of the evidence before it or where there has been an erroneous appraisal of facts leading to erroneous conclusions. See Ojo vs. Adeleke (2002) 8 NWLR (pt. 868) 223, 231-232 paras. G-D; Cameroon Airlines vs. Otutuizu (2011) 4 NWLR (Pt.1238) 512; Rabiu vs. Amadu (2013) 2 NWLR (Pt. 1337)36-41; and State vs. Ajie (2000) 3NSCQR 54, per S. U. ONU, JSC. It is clear to us that the learned trial Judge was right after evaluating the evidence of both parties in finding in favour of the respondent against the unsubstantiated assertions of the appellant. The question, whether the learned trial Judge was right when he held that the subject matter of the suit was gifted to the respondent, is therefore answered in the affirmative. There is cogent and convincing evidence to that effect. Issue 2 (two) is in the

premises resolved in favour of the respondent and against the appellant.

ISSUE 3 (THREE)
Whether the trial Judge was right when he refused and neglected to give effect to the contradiction in the evidence of DW1 and DW2 and the content of Exhibit “N” in particular.
Appellant’s argument herein is that the learned trial Judge refused and/or neglected to evaluate the evidence before him and further refused and/or neglected to look at the content of exhibits particularly Exhibit “N” tendered and give effect to it. He contended that Exhibit “N” which is the specimen signature of the DW2 which he signed in Court did not conform with his signature as contained in his purported witness statement on oath. Counsel stated the obvious which is that an unsigned document has no efficacy or value in law as no one assumes responsibility for it. See Keystone Bank Ltd. vs. J.O.A. & S (Nig.) Ltd. (2015) 1 NWLR Pt. 1439, pg. 98 at 111, para. B – C; and Omega Bank Nig. Plc. vs. O.B.C. Ltd (2005) 8 NWLR Pt. 928, pg. 547.

Appellant went further to lament that there is no paragraph in the six (6) paged judgment

of the learned trial Judge where reference was made of Exhibit “N” and also no paragraph therein where evidence of any witness was evaluated by the learned trial Judge and that this singular act is capable of occasioning miscarriage of justice on either party in the suit. Appellant also contended that the respondent in violation of the provisions of Order 32 Rule 16 of the Nasarawa State High Court Civil Procedure Rules, 2010, filed his written address outside the stipulated time and did not find it worthy to apply to the trial Court for extension of time to file the said written address. Notwithstanding that the appellant’s counsel raised an objection to the competence of the said final written address and sought to discountenance same together with the reply on point of law which was also out of time, the learned trial Court however, failed to deliver any ruling thereon. At this point, the appellant urged on us to resolve this issue in favour of the appellant.

On the converse, the learned counsel for the respondent submitted that the submission by the appellant of non-evaluation of evidence before it by the trial Court, is misconceived

and misleading. He recommended to the Court the authorities ofIsmail vs. FRN (2019) 49 WRN, 1 – 191 at 64; and Agu vs. Nnadi (2002) 12 NSCQR 129, per Ayoola, JSC., wherein the Supreme Court held that:
There is no rule of law or practice that dictate the form of judgment or prescribed that a judgment is flawed if a non-vital issue is left unresolved.

Counsel went on to urge on us to hold that the lower Court before whom Exhibit “N” was made, was satisfied that the statement on oath was made by the ‘appellant’ and that there was no inconsistency in the signature of the witness and consequently was under no duty to act on Exhibit “N”. Learned counsel opined that in the absence of perversion or miscarriage of justice, the Court should refuse to disturb the findings and conclusion of the lower Court. Counsel urged on us to discountenance the appellant’s penchant for technicality other than placing credible evidence before the Court. Learned counsel concluded by submitting that there is no fundamental error in the judgment of the lower Court that should warrant the over-turn of same. See Buhari vs. INEC

(2008) 36 NSCQR 520, where the Supreme Court per Kutigi, JSC. held that:
It is not every error committed by a Judge that results in allowing an appeal or setting same aside.

He urged on us to resolve issue 3 (three) in favour of the respondent and dismiss the appeal with substantial cost against the appellant in favour of the respondent.

RESOLUTION OF ISSUE 3 (THREE)
I deem it pertinent to first and foremost deal with the appellant’s contention that the respondent in violation of the provisions of Order 32 Rules 14 and 16 of the Nasarawa State High Court Civil Procedure Rules, 2010, filed his written address outside the time provided for it in the said rules and did not deem it expedient to seek for extension of time within which to file the said written address. The appellant went further to contend that he had through his counsel raised an objection to the competence of the said respondent’s final written address and asked the trial Court to discountenance same including the reply on point of law which was also filed out of time. He submitted that the learned trial Judge however, refused to deliver any ruling after listening to

submissions of counsel for or and against the written address, rather he went on to consider only the defendant/respondent’s final written address.

Now, I feel compelled to recall the proceedings of the lower Court on 16th October, 2019 and the same reads inter alia:
Appearances:
I.M. Iliyasu, C.J Iwe, Chukwuma Orike for the plaintiff.
O.U. Salifu for the defendant. We are ready for adoption.
Iliyasu: We are ready.
Court: Proceed.
Salifu Esq. The defendant’s written address dated 24/10/18 filed same date. We adopt same. We also filed a reply on point of law and urge the Court to dismiss the plaintiff’s case as lacking in merit.
Iliyasu Esq: We filed two final written address (sic) on 22/10/2018 and 01/11/18. This is because the defendant did not file on time. We apply to withdraw the one filed on 22/10/18.
Salifu Esq: No objection.
Court: The final written address filed by the plaintiff on 22/10/18 is hereby withdrawn and struck out.
Iliyasu Esq: the plaintiff’s final address dated and filed on 01/11/18. We adopt same. The one filed by the defendant is filed out of time outside 21

days. Evidence closed on 18/9/18 and the address was filed on 24/10/18. We urge the Court to discountenance same. The reply on points of law is to be filed with (sic) 7 days after service of the plaintiff’s final written address. No leave was sought. We urge the Court to expunge it from the record. Finally, we urge the Court to grant the plaintiff’s reliefs.
Salifu Esq: Our final written address was not out of time, but I do not know when the defendant closed its case. The Courts in Nasarawa State were on strike and with the exclusion of public holidays. We are not out of time.
Iliyasu Esq: I refer the Court to Order 46:1
Court: adjourned to 08/11/19 for judgment. (See pages 128 – 129 of the record of appeal).

Pursuant to the provisions of Order 32 Rules 14 and 16 of the Nasarawa State High Court Civil Procedure Rules, 2010:
14. Where the other party (Defendant herein) calls evidence he shall within 21 days after the close of evidence file a written address.
16. The party who files the first address shall have a right of reply on points of law only. The reply shall be filed within 7 days after service of the

other party’s address.
The defendant/respondent in the instant case closed his case on 18th September, 2018 but contrary to the foregoing provision, he filed his final written address on 24th October, 2018 which is about 15 days out of time. Similarly, his reply on points of law was to be filed within 7 days after service on him of the plaintiff/appellant’s written address. However, he failed to file and serve same within the statutorily allotted time frame. The defendant/respondent obviously never sought the leave of Court to regularize the irregularity attendant to those processes.
Although the plaintiff/appellant raised some very valid and salient points of irregularity touching on the respondent’s written addresses filed before the lower Court, however, he shot himself on the leg when he allowed the said processes to be adopted by the defendant/respondent before raising the objection thereto. The proper point at which the plaintiff/appellant was to raise and argue his objection to the said defendant/respondent’s irregular processes was at the point the latter prayed the lower Court for them to be adopted for usage by the lower

Court. Having failed to raise the objection timeously, it is or was presumed that he the plaintiff/appellant chose to waive his right to so raise the objection. The plaintiff/appellant’s failure to react at the appropriate time to my mind, makes it immaterial whether the lower Court subsequently made a formal ruling or not on the belated objection, more so as the said plaintiff/appellant had taken some far-reaching steps such as adopting his own final written address before raising the objection. Upon the adoption of the defendant/respondent’s final written address and his reply on points of law, it followed therefrom that the attendant irregularity had been taken in good faith by both the Court and the adverse party. Moreover, failure to file a process within time is a procedural irregularity which does not touch on the substance of that case.

Furthermore, I deem it pertinent to bring to the fore, the fact that the Courts have over the years maintained the stance that a provision of the Rules of Court should never be interpreted in a manner that will prevent the Court from doing substantial justice between the parties in the dispute submitted

for adjudication. This position is based on the firm understanding that the sole purpose of a Court is to do substantial justice between the parties that come before it for adjudication of disputes and not to adhere to technical issues that becloud the justice of the matter. Such rigid adherence to technicalities is detrimental to the ethos of substantial justice and inevitably leads to injustice. See the authorities of State vs. Gwonto (1983) 1 SCNLR 142; Uwazuruike vs. Attorney-General, Federation (2013) 10 NWLR Pt. 1361, pg. 105; Garan vs. Olomu (2013) 11 NWLR Pt. 1365, pg. 227; Ikechukwu vs. Nwoye (2014) 4 NWLR Pt. 1397, pg. 227; and Mfa vs. Inongha (2014) 4 NWLR Pt. 1397, pg. 343. As enjoined by the noble Pats-Acholonu, JSC. (of blessed memory), in Duke vs. Akpabuyo Local Government (2005) 19 NWLR Pt. 959, pg. 130 at 142:
Rules of Court are to be used to discover Justice and not to choke, throttle or asphyxiate Justice. They are not a sine qua non in the just determination of a case and therefore not immutable.
Also in Abubakar vs. Yar’Adua (2008) 4 NWLR Pt. 1078, pg. 465, 511 – 512, the revered Niki Tobi, JSC., explained the point

thus:
Rules of Court are meant to be obeyed. Of course, that is why they are made. There should be no argument about that. But there is an important qualification or caveat and it is that their disobedience cannot or should not be slavish to point that the justice in the case is destroyed or thrown overboard. The greatest barometer, as far as the public is concerned, is whether at the end of the litigation process, justice has been done to the parties. Therefore, if in the course of doing justice some harm is done to some procedural rule which hurts the rule … the Court should be happy that it took that line of action in pursuance of justice… …full opportunity should be given to parties in the interest of justice without due regard to technicalities. Gone are the days when Courts of law were only concerned with doing technical and abstract justice based on arid legalism. We are now in days when Courts of law do substantial justice in the light of the prevailing circumstances of the case. It is my hope that the days of the Courts doing technical justice will not surface again. (Underlining mine for effect).

See further the cases of Okeke vs. State (2019) 26 WRN. 1 – 180 at 89; Ayankoya vs. Olukoya (1996) 2 SCNJ 292 at 301; NIPOL Ltd. vs. Bioku Investment & Property Coy. Ltd. (1992) 3 NWLR Pt. 232, pg. 727 and AminuIya Pate vs. Idris Saleh Muhammad (2016) LPELR-41175(CA) at pp. 34 – 37, paras. B-C, wherein the erudite Abiru, JCA., of this Court went on to hold inter alia as follows:
In furtherance of the principle of substantial justice, the Courts treat the issue of non-compliance with the Rules of Court, …..as a procedural irregularity and the law is that the appropriate time for a party to a proceeding to raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party “sleeps” on that right and allows the proceedings to continue on the irregularity, …..then the party cannot be heard to complain at the concluding or concluded stage of the proceedings. The only exception to this rule is that the party would be allowed to complain on appeal, if it can show that it has suffered a miscarriage of justice by reason of the procedural irregularity – Maja v. Samouris (2002) 3 SCNJ 29,

Duke v. Akpabuyo Local Government supra, Ahmed v. Ahmed (2013) 15 NWLR (Pt. 1377) 274.” (DISSENTING). (Underlining mine for emphasis).

It is decipherable from the foregoing binding authorities that the era of technical justice is far spent. Courts are now more mindful of doing substantial justice to the benefit of the litigants that appear before them, than allowing parties wallow in the injustice of technicality. Though the desirable practice would be for the learned trial Judge to give or make a formal ruling one way or the other, on the objection by the plaintiff/appellant regarding the late filing of the defendant/respondent’s final written address and his reply address at the lower Court, however the failure to so rule has not been shown by the said plaintiff/appellant/objector, to occasion any miscarriage of justice to their case. To my mind, and my interpretation of the silence of the learned lower Court with respect to ruling on the belated objection raised by the learned objector is that the said objection having been overtaken by events of further steps by the parties, was no longer of any moment. The failure of the learned trial

Judge did not affect the substance of the trial. Thus, the objection of the learned Counsel as it affects the failure of the learned trial Judge to rule formally on his objection, is overruled.

It was also the contention of the appellant that no effect was given by the learned trial Judge to the contradiction in the evidence of DW1 and DW2 and yet he failed to identify the purported contradictory evidence. Since as a Court I am not expected to go on a voyage of discovery, I shall take it that they are more or less unfounded assertions and no such contradictions existed.

Exhibit “N” is the specimen signature of DW2 which he signed before the lower Court before the same was admitted by it in evidence. The appellant’s contention is that Exhibit “N” is not in conformity with the DW2’s signature as it is on the face of his statement of claim.

I have taken a careful look at the specimen signature i. e. Exhibit “N” and I am convinced that it shares substantial similarity with the signature on the DW2’s statement on oath. It is against this backdrop that I shall and I so hold that the signature on

the DW2’s statement on oath belongs to the said DW2. The learned trial Judge who had the opportunity and privilege of seeing Exhibit “N” was satisfied that it was in conformity with the one on the statement on oath. Moreover, the DW2 in the course of his cross examination, reiterated the fact that he signed the statement on oath, hence the lower Court was convinced of the authenticity of the same.

On the appellant’s contention that the trial Court failed in his duty to evaluate the evidences placed before him before arriving at his judgment, I think that this position of the appellant is ill conceived and mischievous. The judgment of the lower Court is replete with instances of evaluation of evidence tabled before him by both parties. For instance, at paragraph 1 of page 133 of the record of appeal, the learned trial Judge had stated inter alia in his judgment:
As stated earlier on in this judgment, the Plaintiff (Appellant) testified, called one witness and tendered the documents mentioned above. From the evidence before me, the Plaintiff traces his title to the house in question to his late father who was the next-of-kin to

his uncle and equally granted letters of administration to administer his property since he died intestate. What is the status of a next-of-kin vis-à-vis the property of the person he stands in that position after his death? Put in another way does a next-of-kin become the legal owner of such properties after the death of the real owner? I do not think so…

The foregoing is not only a summary of the appellant’s case but also an evaluation of his testimony. Thus, for the appellant to argue as he did particularly at paragraphs 5.05 – 5.06 of his brief of argument that:
…there is no paragraph in the judgment where evidence of any witness was evaluated by the learned trial Judge, this singular act is capable of occasioning miscarriage of justice on either party in the suit…
is unfounded and calculated to misrepresent facts. The arguments of the appellant hereon, is therefore discountenanced. The plaintiff/appellant failed to satisfy or show to us how and where the imaginary balance of justice was tilted in favour of the respondent and thus jeopardizing the appellant’s own right to a

level playing ground with the said respondent.

On the whole, the question whether the trial Judge was right when he refused and neglected to give effect to the contradiction in the evidence of DW1 and DW2 and the content of Exhibit “N” in particular, is uncalled for, unsubstantiated and exists only in the figment of the imagination of the plaintiff/appellant. Issue 3 (three) is thus resolved in favour of the respondent and against the appellant.

Having resolved the 3 (three) issues distilled for determination in favour of the respondent and against the appellant, it follows that the appeal has nose-dived into the abyss. This is to say that it lacks merit and so is dismissed. As a result, the judgment of the lower Court in suit No. NSD/MG/177/2017, presided over by Hon. Justice Haruna A. Offo, J., delivered 21st November, 2019, is hereby affirmed.
Appeal dismissed with costs assessed and fixed at N60,000.00 awarded in favour of the respondent and against the appellant.

IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the Draft Copy of the Lead Judgment delivered by my learned Brother, Hon.

Justice C. Ifeoma Jombo-Ofo, JCA. I agree with the reasoning and conclusions reached in the lead Judgment.

The Plaintiff (now Appellant) sought declaratory reliefs, injunction Order and general damages against the Defendant (Now Respondent) in the Lower Court. It is settled law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted where credible evidence has been led by the Plaintiff or person seeking the declaratory relief. It is also the practice of Court that a declaratory relief will be granted where the Plaintiff is entitled to the relief in the fullest meaning of the word. It is the law that Plaintiff must plead and prove his claim for a declaratory relief without relying on the weakness of the case of the Defendant although where the weakness of the Defendant’s case supports the Plaintiffs case; he can rely on such evidence to strengthen his case. A declaratory relief is not granted even on admission by the Defendant. See Anyaru vs. Mandilas Ltd. (2007) 4 SCNJ 288 and Akinboni & Ors. vs. Akintope & Ors (2016) LPELR-40184 (CA) pages 25-26 per Abiriyi, JCA; Chukwumah vs. S.P.D.C. Nig. Ltd.

(1993) LPELR-864 (SC) pages 64-65; Matanmi & Ors. vs. Dada & Anor (2013) LPELR-19929 (SC) per Fabiyi, JSC. See also Hajiya Lami Misa vs. Bashiru Ahmad (2018) LPELR-44247 (CA) per Abiriyi, JCA page 22, paras. A-E.

On the issue of whether the trial Court was right when he held that the subject-matter of the Suit has been gifted inter vivos to the Respondent by his late uncle (Yusuf Ndakwo), it was the submission of the learned Counsel to the Appellant that the Appellant’s entitlement to the property in dispute is through his own Late father, who was the Next of Kin to the Yusuf Ndakwo and to whom Letters of Administration over the property was granted since the said Yusuf Ndakwo died intestate. On the other hand, the learned Counsel to the Respondent contended that the property in issue was gifted to the Respondent by the Late Owner i.e. his uncle (Yusuf Ndakwo) who died intestate. See the case of Akunwata Joe Oguejiofor Anyaegbunam vs. Pastor Okwudili Osaka & Ors. (2000) LPELR-508 (SC); where the Supreme Court held per Mohammed, JSC at pages 23-24, paras. F-B thus:-
“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 vs. Dewar (1975) 2 All E.R. 728 at 732. ”

What is the Next of Kin or An Estate Administrator as contended by the Appellant? In Monyelu Ugolo vs. Chizoba N. Odiama (2019) LPELR-47168 (CA); this Court held per Omar, JCA at page 19, paras. E-F thus:
“To my mind, the appointment of an Administrator to manage a deceased’s estate is a position of trust in that the trustee renders account of his stewardship to the other beneficiaries.”
See also the case of Abdulkadir Aliyu & Ors. vs. Intercontinental Bank Plc & Anor. (2013) LPELR-20716 (CA); where this Court also held per Abiru, JCA at page 38 para. C thus: “One of the duties of the Administrators of an estate is to

ascertain and pay the just debts of the estate.”

It is also trite law that the general consideration which the Court takes into account when it appoints a receiver or manager is ultimately, invariably the protection or preservation of property for the benefit of persons who have interest in it. See Henry Emodi & Ors. vs. Orakwue Emodi & Ors. (2006) LPELR-5697 (CA); (2006) 4 FWLR (Pt.346) 7552; (2007) 4 NWLR (Pt. 1024) 412.

The learned Counsel to the Appellant contended that the learned Trial Judge refused and/or neglected to evaluate the evidence before him in Issue Three (3). The Supreme Court held inOnyibor Anekwe & Anor. vs. Mrs. Maria Nweke (2014) LPELR-22607 (SC) per Ogunbiyi, JSC at pages 30- 33, paras. F-A thus:
“As rightly submitted by the learned Counsel for the Appellants, the evaluation of evidence involve the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to the evidence evaluated. This fundamental principle has long been laid down by this Court in the case of Mogaji vs. Odofin (1978) 3-4 SC page 65 at 67;

wherein Fatayi-Williams reading the lead judgment said: “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one 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. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following: (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 probative than that given by the other party. Finally, after invoking the law, if any, that is applicable to the case, the Trial Judge will then come to his final conclusion based on the evidence which he has

accepted.”
It is therefore trite from the foregoing authority that in evaluating any piece of evidence placed before the Court by the parties, the Trial Court is duty bound to consider the totality of the evidence, both oral and documentary led by the parties. It shall then place them on the imaginary scale of justice to determine which of the two sides weighs more creditably than the other. Accordingly, 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. See Lagga vs. Sarhuna (2008) 16 NWLR (Pt.1114) 427 and Bassil vs. Fajebe (2001) 11 NWLR (Pt. 725) 592 at 608-609 and Sha (Jnr) vs. Kwan (2000) 8 NWLR (Pt.670) 685 at 705.

Accordingly, it is my candid opinion that the Appellant did not prove his case with credible evidence to tilt the imaginary scale of justice in his favour so as to be granted the Declaratory and ancillary reliefs sought in the Lower Court and my learned brother is therefore on a

very solid pedestal in holding that the Appeal lacks merit and should be dismissed. I too shall dismiss the Appeal for being unmeritorious and consequently, the decision of the Lower Court is hereby affirmed. I also abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, C. Ifeoma JOMBO-OFO, JCA and I am in complete agreement with the reasoning and resolution arrived in the succinct and concise judgment. The issues donated for resolution were all resolved against the Appellant.

Let me add my voice to the legal position of legality in admissible documents. The law is trite that even when such are erroneously admitted, the trial judge can expunge them at judgment stage even without an application because they are not legally admissible. The Court must abide by the law at all times. They are not in the class of documents that failure to object at the point of its being tendered can bar the other side from seeking to get them expunged.
It has been settled that the Courts cannot act upon legally inadmissible evidence,

there is a great difference in the legal effect of wrongly admitted admissible evidence and the admission of inadmissible evidence in proceedings. Admitting in evidence a piece of evidence, which by law is inadmissible, is an illegality. So, where a piece of evidence which is inadmissible in law is wrongly admitted in evidence the Court cannot use it at any stage of the proceedings; even where no objection was raised against it at trial. An inadmissible evidence, admitted in evidence with or without objection at the time it was admitted, remains irrelevant and inadmissible, see IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) SC 457; ILIYASU SUBERU V. THE STATE (2010) 3 SC. PT.2 105. The same position was reiterated in the case of OKONJI & ORS V NJOKANMA & ORS (1991) LPELR-2476(SC) where the apex Court held as follows:
“It is now trite law that a trial Court must reject any inadmissible evidence and decide the case on legal evidence: OWONYIN V. OMOTOSHO (1961) ALL N.L.R. 304; (1961) 2 S.C.N.L.R. 57; ALASHE V. ILU (1964) ALL N.L.R. 390; (1961) 2 S.C.N.L.R. 57.”

Furthermore, the apex Court in the case of ANYAEBOSI V R. T BRISCOE (NIG) LTD (1987)

LPELR- 506(SC) gave a detailed explanation of the different categories of admissible and inadmissible evidence as follows:
“For the purposes of admissibility, there is the category of evidence which are absolutely inadmissible on the grounds of statutory exclusionary provisions. This category of evidence remains legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or on appeal even where admitted by consent. See Ikenye v. Ofunne (1985) 2 NWLR (pt.5) 1; Owonyin v. Omotosho (1961) 1 All NLR. 304, 308; Alashe v Ilu (1964) 1 ALL NLR 390, 397; Yassin v. Barclays Bank D.C.O. (1968) NLR 171, 177. There is the other category of inadmissible evidence rendered admissible on the fulfillment of certain conditions. This category of evidence are admissible if admitted without objection by the other party, and where the admission of the evidence did not affect the result of the case. See Okeke v Obidife (1965) NMLR 113; Alade v Olukade (1976) 6 SC. 183. In the last mentioned category, the other party is not entitled thereafter to complain where such evidence was admitted at the trial without objection. This principle of

English common law was stated in the English case of Gilbert v Endean (1878) 9 Ch. b. 259, and applied in this Court in Alade v. Olukade (1976) 6 SC. 183. It is not applied to S. 96 of the Evidence Act. In Gilbert v Endean (supra) Cotton said, “But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is led does not object, but treats it as admissible, then before the Court of Appeal in any judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible. “In adopting this view Idigbe J.S.C. in Alade v Olukade (supra) relying on the unreported decision of this Court in Cavatotti Govianni v Bonaso Luigi SC.402/67 of 31/10/69, and the West African Court of Appeal in the case of Akunne v Ekwuno & Ors. (1952) 14 WACA. 59 on the non-compliance with Section 96(1)(b) of the Evidence Act, Cap. 62, and where evidence was admitted without objection said,”… in those cases where the evidence complained of is not, by law, inadmissible in any event, a party may by his own act at the trial, be precluded from objecting to such evidence on

appeal…” The legal effect of the two categories of evidence as I have tried to show was stated lucidly in Yassin v. Barclays Bank D.C.O. (supra) at p. 179.”

The trial judge is therefore on good legal ground and authority to expunge and discountenance documents tendered as Exhibits A1 and B1-4 which were wrongly admitted.

Flowing from the above and other reasons advanced in the judgment, I too dismiss the appeal for lacking in merit and abide by the other orders made therein.

Appearances:

Isa M. Iliyasu, Esq. For Appellant(s)

Mrs. Rekia Rachael Adejo-Andrew For Respondent(s)