YAKUBU v. ODIDI (2022)

YAKUBU v. ODIDI

(2022)LCN/16633(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/A/531/2015

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

MRS. REBECCA EMMANUEL YAKUBU APPELANT(S)

And

UMAJA ODIDI RESPONDENT(S)

RATIO

WHETHER OR NOT A PROCESS PREPARED AND FILED IN A COURT MUST BE SIGNED BY THE LEGAL PRACTITIONER WHO PREPARED IT

Now, a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner: SLB CONSORTIUM LTD vs. NNPC (2011) LPELR (3074) 1 at 16. The name and signature of a person signing a Court process are fundamental and indispensable. The importance of signing a Court process by the legal practitioner issuing it cannot be understated. The verb ‘sign’ denotes the identification of a document, record, et al, by means of a signature mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. Similarly, the noun ‘signature’ is defined as denoting the act of putting one’s name at the end of an instrument to attest its validity: See Black’s Law Dictionary (8th ed.), ONWARD ENTERPRISES LTD vs. OLAM INT’L LTD (2010) ALL FWLR (PT 531) 1503 at 1512 and AROMIRE vs. AJOMAGBERIN (2011) LPELR (3809) 1 (CA). So the signing of a Court process is an integral part of the issuance of the Court process; since it is by signing that the legal practitioner authenticates and validates the process as coming from him. It is not enough to merely scribble a signature without indicating the name and designation of such a person. See AROMIRE vs. AJOMAGBERIN (supra) and PEAK MERCHANT BANK LTD vs. NDIC (supra). PER OGAKWU, J.C.A.

THE POSITION OF LAW ON SIGNING, ENDORSING OR FRANKING A COURT PROCESS ON BEHALF OF A LAW FIRM

It seems to be an established principle that any person signing, endorsing or franking a Court process on behalf of a firm or a senior or colleague in chambers is required to clearly state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a Clerk, Messenger or Secretary would sign processes filed in Court on behalf of counsel in chambers. As already stated, the Statement of Defence in this matter shows at page 28 of the Records that the signature above the name “Nyenke Ikpendu C. J.” is indecipherable that it cannot be ascribed to belong to any name of a legal practitioner on the Roll of Legal Practitioners. From the decision of the apex Court in REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE (1967) NMLR 263 and WILLIAMS vs. ADOLD/STAMM INT’L (NIG) LTD (2017) LPELR (41559) 1 at 15-17, it would seem that where the name of a legal practitioner is clearly and legibly written as signature over a firm name or over the name of the legal practitioner subscribed on the process as having settled the same, it would serve to save the process. However, in this matter, the signature scribbled above the name of the legal practitioner cannot be deciphered as any discernible name, what more being the name of a legal practitioner on the Roll of Legal Practitioners. Breviloquently, the signature on the Statement of Defence is not sufficiently legible in order for it to be ascertained whether the signatory is a legal practitioner or not as the Roll of Legal Practitioners contains names and not signatures. PER OGAKWU, J.C.A.

WHETHER OR NOT A PARTY SEEKING DECLARTORY RELIEF MUST PROVE HIS ENTITLEMENT

Being a declaratory relief, the Appellant must prove her entitlement to the grant of the relief. The Respondent did not counter-claim so there was no onus on him to prove his entitlement to the disputed property. The entire burden rested squarely on the Appellant. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160, 163 and 165, OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 and NIKAGBATSE vs. FRENCH (2014) LPELR (23310) 1 at 25-26. The Appellant having claimed for a declaration must adduce evidence to prove the same, notwithstanding the fact that the Respondent’s Statement of Defence is incompetent. A declaratory relief is not granted in default of defence without evidence being adduced in proof of entitlement to the declaration sought: BELLO vs. EWEKA (1981) 1 SC 101, DIM vs. ENEMUO (2009) 10 NWLR (PT 1149) 353, OSUJI vs. EKEOCHA (2009) 16 NWLR (PT. 1166) 81, IROAGBARA vs. UFOMADU (2009) 11 NWLR (PT. 1153) 587, HAWAD INTERNATIONAL SCHOOL LTD vs. MIMA PROJECTS VENTURES LTD (2005) 1 NWLR (PT 908) 552, ADDAH vs. WAKI (supra) and SHESHE vs. NATAWA (2015) LPELR (25912) 1 at 28-30. PER OGAKWU, J.C.A.

WHETHER OR NOT EVIDENCE NOT CHALLANGED OR UNCONTROVERTED STILL HAS TO BE EVALUATED BY THE COURT

THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant herein was the Claimant before the High Court of Kogi State in SUIT NO. HCL/51/2014: MRS REBECCA EMMANUEL YAKUBU vs. UMAJA ODIDI. The Appellant claimed the following reliefs against the Respondent who was the Defendant before the lower Court:
“i. A declaration by this Honourable Court that the Claimant is the rightful owner of the 5 bedroom flat with 2 parlors situate at No. 4A Awodi Close, Behind Radio Kogi, Lokoja, and covered by Letters of Administration (Without Will) granted in favour of the Claimant on the 2nd day of August, 2013.
ii. A declaration that the Defendant had trespassed by encroaching on the property of the claimant.
iii. Five Hundred Thousand Naira (N500, 000.00) only as general damages for depriving the Claimant the use of the house all this while.
iv. A perpetual injunction restraining the Defendant, his servants, agents, or privies and workmen howsoever from further trespassing and/or encroaching on the Claimant’s property.”

The matter went through a plenary trial where testimonial and documentary evidence was adduced by the parties. In its judgment which was delivered on 12th May 2015, the lower Court held that the Appellant had not proved her claim and consequently dismissed the action. The judgment of the lower Court is at pages 129-142 of the Records. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 29th July 2015. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 13th May, 2016, but deemed as properly filed on 12th January, 2022.

In prosecution of the appeal, the Records of Appeal was compiled and transmitted and briefs of argument were filed and exchanged by the parties. The Appellant’s Brief was filed on 31st May, 2016 but deemed as properly filed on 12th January, 2022. The Appellant further filed a Reply Brief on 23rd February, 2022, but deemed as properly filed on 27th April, 2022. The Respondent’s Brief which was filed on 8th October, 2018 was deemed as properly filed on 12th January, 2022. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant distilled three issues for determination as follows:
“i. Whether the Appellant’s action at the trial Court was not undefended, and ought to have succeeded, in view of the fact that the Statement of Defence together with the evidence adduced by the Respondent was incompetent and void? (Formulated from Grounds 10 and 11 of the Amended Notice and Grounds of Appeal).
ii. Whether on a calm and careful consideration of the evidence adduced at the trial, the learned trial Judge was right to dismiss the Appellant’s case. Formulated from Grounds 1, 5, 6, 7, 8, 9, 12, 13 and 14 of the Amended Notice and Grounds of Appeal).
iii. Whether the learned trial Judge was wrong to reject the Letters of Administration and National Identity card tendered in evidence by the Appellant when the said documents were not inadmissible in evidence (formulated from Grounds 2, 3 and 4 of the Amended Notice and Grounds of Appeal).”

On his part, the Respondent formulated two issues for determination, namely:
“1. Whether Grounds 10 and 11 of the Amended Notice of Appeal and issue 1 formulated in the Appellant’s Brief of Argument are valid and competent haven [sic] not been raised, argued and pronounced upon in the judgment delivered by the trial Court? (Distilled from grounds 10 and 11 of the amended Notice and Grounds of Appeal and issue 1 of the Appellant’s brief of argument).
2. Whether there is any evidence before your Lordships, oral or documentary capable of discharging the burden of proof required to declare the Appellant as ‘the rightful owner’ of the properly in dispute situate at no. 4A Awodi Close, Behind Radio Kogi, Lokoja? (Distilled from grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13 and 14 of the amended Notice and grounds of Appeal and issues 2 and 3 of the Appellant’s Brief of Argument.”

In her reply brief, the Appellant urged the Court to discountenance the Respondent’s issue number one for being incompetent since the said issue does not arise from any of the grounds of appeal and the Respondent neither cross-appealed nor filed a Respondent’s Notice of Contention. The cases of MAIYEGUN vs. GOVERNOR, LAGOS STATE (2011) 2 NWLR (PT 1230) 154 at 166, FAYEMI vs. ONI (2020) 8 NWLR (PT 1726) 222 at 245 and CONSOLIDATED TIN MINES LTD vs. DUNG (2020) LPELR-49815 (CA) at 10-11 were relied upon.

Now, I have already reproduced the Respondent’s issue number one. The said issue complains about the validity and competence of the Appellant’s grounds 10 and 11 of the Amended Notice of Appeal and the issue distilled therefrom. It is trite law that a ground of appeal must arise or relate to the decision appealed against and in turn, issues for determination must be culled from one or more grounds of appeal. It is self-evident that the Respondent’s issue number one could not have been framed from any ground of appeal that flows from the decision appealed against. By the very nature of the said issue, it could not have arisen from any ground of appeal which challenges the ratio decidendi of the decision appealed against.

It is settled law that the options open to a respondent in an appeal, where he has neither cross-appealed, filed a preliminary objection or Respondents Notice; are limited when it comes to formulation of issues in the appeal. The options available are to either adopt the issues formulated by the appellant, give the appellant’s issues a slant favourable to his case or formulate his own issue. However, where the respondent chooses to formulate his own issues, the issues so formulated must be derived from the Appellant’s grounds of appeal. See NCC vs. MOTOPHONE LTD (2019) LPELR (47401) 1 at 42-43, OSSAI vs. WAKWAH (2006) LPELR (2813) 1 at 10-11, FAYEMI vs. ONI (2019) LPELR (49291) 1 at 11-12 and OKECHUKWU vs. INEC (2014) 17 NWLR (PT 1436) 255.

Furthermore, it is lucent that the Respondent by the said issue number one, attempts to smuggle an objection to the competence of grounds 10 and 11 of the Amended Notice of Appeal. An objection to a ground of appeal or an issue for determination in an appeal cannot merely be the subject of an issue for determination distilled by the Respondent. For such an objection to be raised, the Respondent has to file a Notice of Preliminary Objection as required by Order 10 of the Court of Appeal Rules, 2021, where the objection is against all the grounds of appeal. Where however the objection is against only some of the grounds of appeal or issues, then the objection is to be raised by a Motion on Notice. The Respondent’s issue number one which is an objection to the said grounds 10 and 11 of the Amended Notice of Appeal and the issue distilled therefrom is therefore incompetent and the same is hereby discountenanced and struck out. See ELUWANTA vs. ONWUKWE (2014) LPELR (23538) 1 at 14-15, MTN COMMUNICATION LTD vs. ABIA STATE GOVT (2016) 1 NWLR (PT 1494) 475 at 495-496, ORLU vs. GOGO-ABITE (2010) 8 NWLR (PT 1196) 307 at 321 and POLARIS BANK LTD vs. VITAL VETS NIG LTD (2020) LPELR (49954) 1 at 37.

Having struck out the Respondent’s issue number one, I will now proceed to consider the submissions of learned counsel on the surviving competent issues as crafted by them and thereafter resolve the appeal ensemble.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s submission on her issue number one is that the Respondent’s Statement of Defence on which the action was tried at the lower Court is incompetent since it was not signed by a legal practitioner or party; and that the same having been signed by an unknown person, is incompetent. The cases of APPEAL NO. CA/C/35/2011: NGUN vs. MOBIL PRODUCING NIG. LTD unreported delivered on 14th February, 2013, PEAK MERCHANT BANK LTD vs. NDIC (2011) 12 NWLR (PT 1261) 252 at 261-262, SLB CONSORTIUM vs. NNPC (2011) 9 NWLR (PT 1252) 317 at 337-338, ALAWIYE vs. OGUNSANYA (2013) 5 NWLR (PT. 1348) 570 at 618, HAMZAT vs. SANNI (2015) 1 SCNJ 123 at 137, EZENWA vs. KSHMB (2011) 9 NWLR (PT 1251) 89 at 115 among other cases were referred to.

It was posited that the consequence of the incompetence of the Statement of Defence is that it ought to be struck out, and concomitantly that the Respondent’s evidence will be discountenanced, thereby leaving the Appellant’s case as not traversed, contested or challenged since there will be nothing to place on the Respondent’s side of the imaginary scale of justice. It was therefore maintained that the Appellant’s case ought to succeed. The cases of HAMZAT vs. SANNI (supra) at 143 and 145, EZENWA vs. KSHMB (supra) at 115, THE STATE vs. AIBANGBEE (1988) 2 NSCC 192 at 200, NWABUOKU vs. OTTIH (1961) 2 SCNLR 232, AYINKE vs. LAWAL (1994) 7 NWLR (PT 356) 263 at 275 and BALOGUN vs. UBA LTD (1992) 6 NWLR (PT 247) 336 at 351 were cited in support.

The Appellant’s submission on her second issue is that the judgment of the lower Court is against the weight of the evidence. The evidence, it was opined, established that the Appellant was married to the deceased who died intestate and that she was entitled to inherit the estate of the deceased, and did inherit the disputed building. The cases of MOTOH vs. MOTOH (2011) 16 NWLR (PT 1274) 474 at 525 and 531 and JADESIMI vs. OKOTIE-EBOH (1996) 2 NWLR (PT 429) 128 at 155 were called in aid. It was asserted that the lower Court did not evaluate the evidence properly and consequently made perverse findings of facts. It was maintained that there is no duty on a party to call a particular witness and that the lower Court was wrong when it held that the Appellant did not call members of the family to give evidence of the sharing formula; since the only duty on her was to prove her case on the preponderance of evidence vide APPEAL NO. CA/K/200/2008: OGBONNA vs. OGBONNA unreported delivered on 17th January 2004 [sic].

The Appellant’s contention on her issue number three is that the lower Court was wrong when it held that the Letters of Administration and National Identity Card were not admissible in evidence. It was opined that the lower Court was wrong to reject the documents based on Section 83 (3) of the Evidence Act as the conditions for the application of the provision were absent; as the Letters of Administration were not issued or made by a person interested. The cases of ANYAEBOSI vs. R. T. BRISCOE NIG. LTD (1987) 6 SCNJ 9 and OKONKWO vs. OKONKWO (2003) 51 WRN 112 at 144-145 were relied upon.

On the rejection of photocopy of the National Identity Card on the grounds that the maker was not called, it was submitted that documentary evidence can be admitted in the absence of its maker vide OMEGA BANK NIG PLC vs. O.B.C. (2006) 4 WRN 1 at 43. Conclusively, the Court was urged to admit the two documents in evidence as part of the Appellant’s case.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that there is no evidence to support the reliefs claimed by the Appellant. It was stated that the principal relief claimed is declaration of title to property and that the Appellant has the burden of proving the declaration sought based on the strength of her case and not the weakness of the defence. The cases of AIYEOLA vs. PEDRO (2014) 44 WRN 1, FAJIMI vs. SUBERU (2013) 6 WRN 158 at 181-182, ISEOGBEKUN vs. ADELAKUN (2013) 51 WRN 1 at 25-26, ADDAH vs. WAKI (2015) SCNJ 85 at 105-106 among other cases were referred to. It was maintained that the Appellant did not prove her title by any of the five ways of proving title to land and that even if the Letters of Administration and National Identity Card were admitted in evidence, they would have no effect on the Appellant’s case for declaration of title since they were not documents of title that could confer ownership vide IBRAHIM vs. OSUNDE (2009) 1-2 SC (PT 2) 1 at 110.

The Respondent asserted that the lower Court was right when it refused to admit the Letters of Administration and National Identity Card in evidence; and that even if wrongfully rejected in evidence, their admission would have made no difference to the decision and so the rejection did not occasion a miscarriage of justice. It was contended that the Appellant failed to tender any document showing the sharing of the property of the deceased. It was posited that the Appellant having failed to prove title to the property, the other reliefs sought ought also to fail.

Still in argument, the Respondent submitted that the defence to an action is a process starting with entry of appearance and culminating in final address. The filing of a statement of defence was said to be only part of the process, which even where the statement of defence is incompetent would not make the action undefended. It was further argued that the counsel who signed the Statement of Defence is known and that he represented the Respondent several times at the lower Court. It was maintained that the documents accompanying the Statement of Defence remain valid and that the witness statement on oath having been adopted by the Respondent at the trial is the defence to the action.

The processes which constitute the defence to an action were analysed and it was stated that cross-examination was a major weapon of defence, since effective cross-examination can entitle a defendant who did not call any witness to judgment. The cases of OMISORE vs. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 at 322 and ORJI vs. UGOCHUKWU (2009) 14 NWLR (PT. 1161) 207 at 308 were called in aid.

The cross-examination of the Appellant and her witness was said to be effective and showed that the Appellant was not entitled to the declaration claimed. The Court was conclusively urged to discountenance the Appellant’s submission that the action was undefended, since the defence of an action is a process which consists of many stages and which are separately filed and independent of each other.

APPELLANT’S REPLY ON LAW
The Appellant submits in her Reply Brief that the identity of the legal practitioner who signed a Court process is to be ascertained from the process itself and not from extrinsic evidence in a brief of argument vide CITY BISCUIT MANUFACTURING CO LTD vs. EZEONU (2016) LPELR-41520 (CA), MELAYE vs. TAJUDEEN (2012) 15 NWLR (PT 1323) 315 at 338, B.L.L.S. CO. LTD vs. MV WESTERN STAR (2019) 9 NWLR (PT 1678) 489 at 509 and NNALIMUO vs. ELEDUMUO (2018) 8 NWLR (PT 1622) 549 at 561. It was opined that a Statement of Defence is the originating process for the defence and that where there is no valid statement of defence, the evidence of the defence goes to no issue as a witness statement on oath is evidence which cannot stand without a valid pleading. The case of SALAMI vs. MUSE FAMILY (2019) 13 NWLR (PT 1689) 301 at 321, 323 and 324 was cited in support.

It was further contended that when the Statement of Claim is read as a whole along with the evidence adduced, it would disclose that the Appellant’s claim to ownership of the disputed property rests on her right to inherit her husband and that her case centres on becoming the owner of the property after it was shared. It was posited that the five ways of proving title deals with the ways by which title to land may be proved in Court and has nothing to do with the mode of acquisition of title to land. The case of AJIBOYE vs. ISHOLA (2006) ALL FWLR (PT 331) 1209 at 1229-1230 was called in aid. The Appellant reiterated that the burden on her was to prove her case on preponderance of evidence and balance of probabilities. The cases of ODUNUKWE vs. OFOMATA (2010) 18 NWLR (PT 1225) 404 at 430 and NWADIKE vs. IBEKWE (1987) 4 NWLR (PT 67) 718 at 735 were relied upon.

RESOLUTION
The Appellant has challenged the validity of the Statement of Defence filed by the Respondent and on the basis of which the Respondent adduced evidence in defence of the action at the lower Court. The said Statement of Defence and accompanying processes are at pages 25-63 of the Records. Page 28 of the Records shows the name of the legal practitioner who settled the Statement of Defence as “Nyenke Ikpendu C.J.” Beside this name is written the word “For:”, denoting that the signature above the name is not that of “Nyenke Ikpendu C.J.”, but that someone signed on his behalf. Now, above the name of the said legal practitioner is a signature which cannot be ascribed to any known legal practitioner as the identity of the person who signed the process is not disclosed.

Now, a process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner: SLB CONSORTIUM LTD vs. NNPC (2011) LPELR (3074) 1 at 16. The name and signature of a person signing a Court process are fundamental and indispensable. The importance of signing a Court process by the legal practitioner issuing it cannot be understated. The verb ‘sign’ denotes the identification of a document, record, et al, by means of a signature mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it. Similarly, the noun ‘signature’ is defined as denoting the act of putting one’s name at the end of an instrument to attest its validity: See Black’s Law Dictionary (8th ed.), ONWARD ENTERPRISES LTD vs. OLAM INT’L LTD (2010) ALL FWLR (PT 531) 1503 at 1512 and AROMIRE vs. AJOMAGBERIN (2011) LPELR (3809) 1 (CA). So the signing of a Court process is an integral part of the issuance of the Court process; since it is by signing that the legal practitioner authenticates and validates the process as coming from him. It is not enough to merely scribble a signature without indicating the name and designation of such a person. See AROMIRE vs. AJOMAGBERIN (supra) and PEAK MERCHANT BANK LTD vs. NDIC (supra).

It seems to be an established principle that any person signing, endorsing or franking a Court process on behalf of a firm or a senior or colleague in chambers is required to clearly state his name and designation to show that he is a legal practitioner. This is to avoid a situation where a Clerk, Messenger or Secretary would sign processes filed in Court on behalf of counsel in chambers. As already stated, the Statement of Defence in this matter shows at page 28 of the Records that the signature above the name “Nyenke Ikpendu C. J.” is indecipherable that it cannot be ascribed to belong to any name of a legal practitioner on the Roll of Legal Practitioners. From the decision of the apex Court in REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA vs. AKINDELE (1967) NMLR 263 and WILLIAMS vs. ADOLD/STAMM INT’L (NIG) LTD (2017) LPELR (41559) 1 at 15-17, it would seem that where the name of a legal practitioner is clearly and legibly written as signature over a firm name or over the name of the legal practitioner subscribed on the process as having settled the same, it would serve to save the process. However, in this matter, the signature scribbled above the name of the legal practitioner cannot be deciphered as any discernible name, what more being the name of a legal practitioner on the Roll of Legal Practitioners. Breviloquently, the signature on the Statement of Defence is not sufficiently legible in order for it to be ascertained whether the signatory is a legal practitioner or not as the Roll of Legal Practitioners contains names and not signatures.
In AROMIRE vs. AJOMAGBERIN (supra), the process in that case was issued in the name of Kayode Sofola, SAN. Somebody signed on behalf of Kayode Sofola, SAN. The person who signed did not indicate his name and designation and this Court held that the Court process, which was signed by an unknown person for Kayode Sofola, SAN, was incompetent. Equally, in PEAK MERCHANT BANK LTD vs. NDIC (supra) the Court process in that case was issued in the names of Babajide Koku, Esq., and L. O. Iluyomade, Esq., the person who signed the process was not indicated and this Court held that the process was incompetent. Given the settled state of the law, the poser in this matter remains, who is the signatory of the Statement of Defence? Is the signatory a legal practitioner? There is no way it can be ascertained if the signature belongs to a legal practitioner as the signature is not legible. By Sections 2 (1) and 24 of the Legal Practitioners’ Act, only a legal practitioner can sign Court processes. The importance attached to the signing of a Court process is such that where it cannot be said who signed a Court process; the Court process is incurably bad. A signature without the name of the counsel appending the signature is incurably bad – per Rhodes-Vivour, JSC in SLB CONSORTIUM LTD vs. NNPC (supra). Where the process is a pleading, Statement of Claim or Statement of Defence, any evidence predicated on the null process would not be of any evidential value since it would be based on nothing as there would be no valid pleading on record to sustain the case vide OKPE vs. FAN MILK PLC (2017) 2 NWLR (PT 1549) 282, OKAFOR vs. NWEKE (2007) 10 NWLR (PT 1043) 521, SALAMI vs. MUSE FAMILY (supra) and AJIBODE vs. GBADAMOSI (2021) 7 NWLR (PT. 1776) 475. Since the Statement of Defence in this matter is incompetent and unknown to law, it could not have spawned any valid process on which the Respondent’s witness statement on oath could be based. The incompetent Statement of Defence is consequently struck out. But does this portend that the Appellant’s action must eo ipso succeed as contended by the Appellant? We will find out in a trice.

I have already set out the reliefs claimed by the Appellant. The principal relief claimed is for a declaration that the Appellant is the rightful owner of the disputed property. Being a declaratory relief, the Appellant must prove her entitlement to the grant of the relief. The Respondent did not counter-claim so there was no onus on him to prove his entitlement to the disputed property. The entire burden rested squarely on the Appellant. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160, 163 and 165, OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 and NIKAGBATSE vs. FRENCH (2014) LPELR (23310) 1 at 25-26. The Appellant having claimed for a declaration must adduce evidence to prove the same, notwithstanding the fact that the Respondent’s Statement of Defence is incompetent. A declaratory relief is not granted in default of defence without evidence being adduced in proof of entitlement to the declaration sought: BELLO vs. EWEKA (1981) 1 SC 101, DIM vs. ENEMUO (2009) 10 NWLR (PT 1149) 353, OSUJI vs. EKEOCHA (2009) 16 NWLR (PT. 1166) 81, IROAGBARA vs. UFOMADU (2009) 11 NWLR (PT. 1153) 587, HAWAD INTERNATIONAL SCHOOL LTD vs. MIMA PROJECTS VENTURES LTD (2005) 1 NWLR (PT 908) 552, ADDAH vs. WAKI (supra) and SHESHE vs. NATAWA (2015) LPELR (25912) 1 at 28-30.

It is rudimentary law that evidence even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 588 and NEKA B. B. B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659:
“The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak… that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff….”
While it is correct that the burden of proof in such circumstances will be discharged upon minimal proof; there must still be that minimal proof for the burden to have been discharged and the Court must evaluate the evidence to ascertain that the threshold was reached.

To now captivate our attention is whether the lower Court rightly held that on the evidence, the Appellant did not prove her case to warrant the grant of the reliefs claimed. The facts on which the Appellant predicated her claim for a declaration of ownership of the disputed property are not convoluted. Indeed, the facts are simple and straightforward and it is based on the averment that the disputed property was the share given to her when the properties of the deceased were shared. In this wise, the averments in paragraphs 13 and 14 of the Statement of Claim at pages 6-7 of the Records are relevant. They read:
“13. The Claimant avers that having taken charge of all her late husband’s properties, she informed her Late husband’s people about this fact and that since she knows that her late husband has a male child, she would not hold all the properties to herself.
14. The Claimant avers that the Odidi family, represented by Maji Odidi and her own father’s family, came to Lokoja and shared all her Late husband’s properties as follows:
a) Property at No. 4A Awodi Close was given to the Claimant.
b) Property at No. 4B Awodi Close was given to the Defendant.
c) The eight (8) bedroom house at the village (Inye), the car with other properties were given to the Defendant.”

The Appellant testified in this regard in paragraphs 10 and 11 of her witness statement on oath (see page 11 of the Records). To underscore the basis and essence of the Appellant’s entitlement to the principal relief claimed, the Appellant submitted as follows in paragraph 1.10 of the Appellant’s Reply Brief:
“1.10. I wish, with respect, to refer my Lords to paragraphs 13, 14 and 15 of the statement of claim on pages 6 to 7 of the record of appeal read along with paragraphs 10, 11 and 12 of her evidence on page 11 of the record of appeal to show that her case centres on becoming the owner of the property after it was shared between her and respondent upon the death of her husband.”
(Emphasis supplied)

So, on the Appellant’s own showing, “her case centres on becoming the owner of the property after it was shared”. Did the Appellant establish this sharing on the evidence?
As rightly held by the lower Court at page 138 of Records:
“… the claim of the claimant is for house No. 4A which according to the claimant in her statement on oath the Odidi family represented by Maji Odidi and her own fathers’ family came to Lokoja and shared all her late husband’s property and gave house No.4A Awodi close to her. Property at No. 4A [sic] Awodi close was given to the defendant. Claimant has not told the Court that those that took part in the sharing are dead. Her evidence need to be corroborated by this [sic] people. Claimant cannot succeed upon the weakness of defendant case. She needed to prove her case before the Court.
In the light of the above, it is my view that the claimant who claimed to have acquired properties as Christian together with her late husband need to bring the four [sic] evidence of title to those properties that is House No.4A Awodi close Lokoja. This is lacking in claimants case.”

The lower Court continued at page 141 of the Records and held:
“According to the claimant she was given house No.4A Awodi close Lokoja by family of her late husband while the defendant was given the house in the village and vehicle. These family members of the late husband were however not called as witnesses in this case by the claimant to tell the Court the sharing formula.
Another thing is that the claimant in her evidence before this Court told the Court that as Christian she co-owned the property with her late husband, Samson Abdul Odidi. That piece of evidence ought to have been supported with title document.”

The above finding of the lower Court is definitely a justified product of the evaluation of the evidence on record. The Appellant, having pleaded that the sharing was done by members of her family and the family of the deceased, ought to have called at least any one of those who did the sharing. While it is correct that the Appellant is not required to call any particular witness, she should at the very least, based on the state of pleadings, call material and vital witnesses. See ADAMAWA vs. WARE (2006) 4 NWLR (PT 970) 399, OMIKA vs ISAH (2011) LPELR (4564) 1 at 32 and OKPOKAM vs. TREASURE GALLERY LTD (2017) LPELR (42809) 1 at 23-24. No witness can be more material or vital than a witness who can testify on the sharing of the property of the deceased, which the Appellant stated is what her case is centred on. The matter does not end there. In her testimony under cross-examination at pages 123-124 of the Records, the Appellant stated:
“I have documents to show that I acquired the property in dispute with Late Samson Abdul Odidi. As I was rushing to the Court, I forgot them in the house. I do not have any document before this Court now to show that I acquired the property in dispute with Late Samson Abdul Odidi. I do not have the document with me now to show that we shared my late husband’s properties.”

The finding of the lower Court that the testimony of the Appellant ought to have been supported by the documents cannot therefore be faulted.

To further underscore this, there had been previous criminal proceedings against the Respondent, it was tendered as Exhibit D2. The relevant portion copied at page 48 of the Records shows that even when the Appellant testified as the PW1 in the said previous criminal proceedings, she failed to tender the document which she said she had, to the effect that the property was shared. The Appellant having stated that there exists a document showing the sharing, and having failed to call any of the persons who did the sharing ought to have tendered the document to prove the sharing. The Appellant failed to prove the sharing by producing and tendering the document in evidence.

The judge at nisi prius is a peculiar adjudicator. He is the one in the heat of the battle at the trial. He sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial judge who saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. The trial Court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates and then makes logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43.

The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except where the findings are perverse or are not supported by the evidence: TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18. Now, a perverse finding or a perverse decision is one that ignores the facts or evidence before the Court and which considered as a whole amounts to a miscarriage of justice. A perverse finding is a finding which is merely speculative and not based on any evidence before the Court. It is a finding that is unreasonable and unacceptable because it is wrong and completely outside the evidence before the Court. See NEPA vs. OSOSANYA (2004) 1 SC (PT 1) 159, OVERSEAS CONSTRUCTION COMPANY NIG LTD vs. CREEK ENTERPRISES (NIG) LTD (1985) 12 SC 112 and IWUOHA vs. NIPOST (2003) 4 SC (PT 11) 37 at 61.
I have painstakingly gone through the evidence on record with the finery of a judicial toothcomb and I am not in any doubt whatsoever that the lower Court justifiably appraised the facts and unquestionably evaluated the evidence. The findings arrived at flow from the accepted evidence and they are not perverse. There is no basis for an appellate Court to interfere since it is not the business of an appellate Court to embark on a fresh appraisal of the evidence when the trial Court has unquestionably evaluated and appraised the evidence. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98, OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 217-218 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. The lower Court neither took an erroneous view of the evidence adduced nor were the findings made perverse. I am satisfied that the lower Court, which had the advantage of seeing the witnesses testify unquestionably evaluated the evidence and justifiably appraised the facts.

The law is that the conclusions of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. The Appellant has failed to show that the conclusions of the lower Court on the facts are not correct or that they are in any way perverse. The Appellant has therefore failed to upset the judgment on the facts.

The Appellant makes a kerfuffle of the lower Court having rejected the Letters of Administration and National Identity Card of the deceased in evidence. By Section 251 (2) of the Evidence Act, the wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case, if it appears to the Court on appeal that had the evidence excluded been admitted, it may reasonably be held that the decision would have been the same. See OJENGBEDE vs. ESAN (2001) 12 SCNJ 401, OKOBIA vs. AJANYA (1998) LPELR (2454) 1 at 17-19 and OMOMEJI vs. KOLAWOLE (2008) LPELR (2650) 1 at 22.

Where an issue of wrongful admission or rejection of evidence is raised, there are three options open to the appellate Court by virtue of the stipulations of Section 251 of the Evidence Act. These options are: the evidence may be left intact, regarding it as properly admitted or rejected; the Court may expunge the evidence wrongly admitted or in case of evidence wrongly rejected or excluded, order a retrial directing its admission. The decision of the trial Court can only be reversed in any event, if the evidence wrongly admitted or rejected affected the decision of the Court. See DUNALIN INVESTMENT LTD vs. BGL PLC (2015) LPELR (26001) 1 at 96-97, IDUNDUN vs. OKUMAGBA (1976) LPELR (1431) 1 at 22-23 and DUROSARO vs. AYORINDE (2005) LPELR (967) 1 at 21-22. I have insightfully considered the Appellant’s Statement of Claim and evidence and I am satisfied that even if the Letters of Administration and National Identity Card had been admitted in evidence, that the decision of the lower Court would have been the same. I will explicate.

The averment in respect of the National Identity Card is in paragraph 11 of the Statement of Claim and it is to the effect that the Appellant was listed as the next of kin in the National Identity Card of the deceased. The Appellant goes on to aver that she did not by virtue of being next of kin want to keep the deceased properties to herself, since the deceased had a male son, consequent upon which the properties were then shared. So on the pleadings and evidence the relief sought was not on the basis of being next of kin but on the sharing. It is consequent upon the sharing as pleaded, but unfortunately not proved, that the Appellant then applied and obtained Letters of Administration in respect of the property she claimed as her share. So the Letters of Administration was anchored on the sharing. So, for recourse to be made to the Letters of Administration, for whatever it may be worth, the sharing has to be first proved; which was not done. In any event, the Letters of Administration cannot confer ownership of the property, comprising the Estate and subject of the Administration on the Appellant. As held by the apex Court in IBRAHIM vs. OSUNDE (2009) LPELR (1411) 1 at 29-30:
“It is wrong, in law, for an administrator of an estate or anybody claiming through him, to assimilate that property to his own, equity will not even permit that under any guise. To say the least, it is gross abuse of office. Administrators or executors are trustees of the property placed in their care, so to say, on trust to the beneficiaries. A heavy duty is placed on those in whom trust and confidence are reposed to show the righteousness of their transactions with the property entrusted to them. No ownership known to law can ever be conferred on an administrator in respect of the property subject-matter of that administration. Such an administrator, … cannot have possession of such a property which will ever have any legal blessings.”

In the light of the foregoing, it cannot be confuted that since the Appellant failed to prove the sharing of the property which her case centred on, the admission of the Letters of Administration and National Identity Card in evidence would not have made any difference to the decision of the lower Court.

It seems to me that we have arrived at the terminus for this judgment. The concatenation of the foregoing is that there is no merit in this appeal. The same fails and it is hereby dismissed. The judgment of the lower Court is affirmed. The Respondent is entitled to the sum of N100,000.00 as costs of this appeal.

PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I agree with his finding, reasoning and conclusion that the appeal lacks merit and that the appeal be dismissed. The decision of the lower Court is also hereby affirmed by me. Costs of N100,000.00 is awarded against the Appellant in favour of the Respondent.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Ugochukwu Anthony Ogakwu JCA, obliged me with a copy of the Judgment just delivered in draft.

Having also studied the grounds of appeal, and perused the record of appeal, I find the reasoning advanced by my learned brother quite satisfactory and the conclusion inevitable.

I agree therefore that the appeal is devoid of merit and accordingly dismiss same. The judgment of the lower Court delivered on the 12 of May, 2015 is in the event affirmed.