Odi Chukwuma V. Osi Chukwuma & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
AMIRU SANUSI, J.C.A.
This appeal emanated from the decision of the High Court of Anambra State (“the lower court” for short) delivered on 12/11/2007. Initially, the suit was instituted by the appellant as plaintiff, at the Customary Court, Onitsha and the suit thereat was numbered CCON/39/04. At the instance of the defendants now respondents, the suit was transferred to the lower court for adjudication.
By his Amended Statement of Claim filed on 28/3/2001, the plaintiff claimed the following reliefs at the lower court:
(a) Declaration that the plaintiff is under the Onitsha native law and custom entitled to the right of occupancy to at least one half of the land in dispute which is verged pink in Survey Plan No. ALM/AN/DOS/96 of 20th June 1996;
(b) AN ORDER of court partitioning the land in dispute under the Onitsha native law and custom between the plaintiff on the one hand and the defendants as the descendants of the two steps of Nwonyeugbo Chukwuma Family;
(c) Perpetual Injunction restraining all the defendants by themselves or their servants, agents and privies from interfering with the plaintiffs right of occupancy, possession and use of his own portion by the said partition.
The facts which gave rise to this appeal are summarized hereunder. At the lower court the plaintiff now appellant claimed that the land in dispute situate at No.25 Ojedi Road, Onitsha was liable to be partitioned under “Usokwu” native law and custom of Onitsha between him on one hand and the defendants/respondents on the other. According to the plaintiff/appellant House C shown in Exhibit B, the plaintiffs plan of the land in dispute, had survived the Nigerian Civil war even though it was seriously damaged during the war. The said House C is known as the ‘Iba.’ Houses A and B were said to have been built by the defendants’/respondents’ father before the Nigerian civil war. That is to say before 1972, when the respondents claimed the property in dispute was partitioned and when the plaintiff was a student. The plaintiff/appellant also claimed that he built House D sometimes in 1975 or thereabout with the assistance of Umuosodi Family. Subsequently, sometimes in 1994 the defendants/respondents claimed on oath that the portion of land was allocated to the plaintiff/appellant by their late father. They also testified on oath, in a subsequent court proceedings that the appellant got it out of the Ogene Nwokedi supervised partitioning in 1972. On the other hand, the plaintiff/appellant claimed that House C was in common use of the family as the “Iba” even before the death of Martin, the respondents’ father. On the death of the respondents’ father, the respondents claimed exclusive ownership of House C and sought to get their father buried there. The appellant protested and instituted the initial suit before the Customary Court and wrote a petition to the Obi-in-Council who directed them not to bury their father on the disputed land though they turned deaf ears and went ahead to bury their father there and also disregarded the Customary Court’s injunctive order dated 2/8/94 against the burying of Martin there. However, following yet another protest by the plaintiff/appellant, the respondents exhumed the body of their father from House C and buried him outside. Both parties remained in occupation and use of the portions of land in dispute. The defendants/respondents alleged that they were in occupation as a result of a 1972 partition, while the plaintiff/appellant insisted that they are each occupying and using the portions of their family land as of right. These convictions by the parties later became the subject matter of the suit at the lower court which, after taking evidence, rejected the case of the appellant and in a considered judgment delivered on 12th November 2007, held that the land in dispute i.e. 25 Ojedi Road Onitsha has been “orally partitioned” in 1972.
Dissatisfied with the judgment of the lower court, the appellant appealed to this court and had on 12/11/2007 filed a Notice of Appeal dated 10/10/2007 containing six grounds of appeal. In his brief of argument dated 18/3/2008 filed on 20/3/2008, the appellant raised five issues for determination. The issues raised are:
1.) Does the totality of the evidence for and in support of the appellant’s case not outweigh that for and in support of the defence?
2) The Respondents having not pleaded and testified on oral partition the learned trial judge was wrong not only to have failed to make a finding of oral partition but also to have simply concluded that there was one.
3) Was it not a misdirection on the part of the learned trial Judge to have refused to give effect to Section 149 of the Evidence Act 1990 given that Mrs. Maria Obiozor and her evidence were in issue and most crucial in the determination of the claim.
4) Whether the Appellant ever admitted that he was the absolute owner of portion D which he occupied as a result of which he never complained to anybody as long as Martin lived.
5) Did the admission in Exhibit E not adversely affect the defence and support the Appellants’ case to the effect that there was no partition of 25 Ojedi Road, Onitsha.
The appellant also filed Appellant’s Reply Brief on 22/5/08 dated 21/5/08.
“The learned counsel for the respondents adopted the above listed issues for determination formulated by the appellant in his undated brief but filed on behalf of the respondents on 25/4/08. In treating this appeal, I will consider the issues set out above seriatim.
On the first issue for determination, it is the submission of the learned counsel for the appellant that in the circumstance of this case it is the defendants/respondents that had the burden to satisfactorily prove that there had been a partition of the property in dispute in 1972 as they alleged or pleaded. See John Idehen vs. Olaoye (1991) 5 NWLR (Pt.191) 344 at 391. He said all that the plaintiff/appellant is expected to do is to introduce the claim of partition by leading evidence showing that the property in dispute is under the Onitsha native law and custom a subject of partition between the appellant on one hand and the respondents on the other by the ‘Usokwu’ system of sharing and also to .show that the property in question had not been so partitioned. It was also submitted by the appellant’s counsel that he pleaded that portion D of the property occupied by the appellant was allocated or ex gratia apportioned to the appellant and such pleaded facts were never denied by the respondents hence such non-denial amounted to admission which needs no further proof. He said having accepted that the property in dispute was liable to partition between the parties in 1972 under the “Usokwu” System of Onitsha native law and custom and as also as found by the lower court, then the defendants/respondents had a duty to prove that there had indeed been a partitioning, state the witnesses present at the alleged partitioning exercise, the manner and mode of sharing and also produce evidence or testimonials of the partition, e.g., by tendering survey plan, beacons or other boundary marks etc. He argued further that the respondents only named witness Maria Obiozor who was not even called to testify even though her evidence was pleaded, hence he urged this court to presume under Section 149 (d) of the Evidence Act 1990 that her evidence was withheld because it would be against the respondents on the issue of partition. See AG of Adamawa State VS. Ware (2006) All FWLR (Pt. 306) 860 at 876 D.
It was further submitted by the appellant’s counsel that the system of sharing in accordance with Usokwu system, was neither pleaded nor any other mode of sharing was pleaded by the defendants/respondents and therefore no evidence was led by them to prove that hence the assertion that the appellant never raised the issue in 1972 goes to no issue and the appellant need not react to it. He said since no plan or testimonials or mode was tendered. Similarly mode of the partitioning such as beacons or boundary marks were also not pleaded, or tendered at the trial hence, such had simply strengthened the appellant’s case to the effect that the land in dispute was yet to be partitioned. On what amounts to partition in law, the learned appellant’s counsel cited and referred to the cases of Olorunfemi vs. Asho (2000) 1 SCNJ 122 at 133,. Ayeni vs. Sowemimo (1982) 5 SC 60 at 82, Ibetokun vs. Strabag Construction (Mg.) Ltd. (2004) All FWLR (Pt.205) 305 at 318. Learned appellants’ counsel emphasized that the respondents who are the assertors of partition, have the burden of proving same and not the appellant. See Idehen vs. Olaoye I1991) 5 NWLR (Pt.191) 344 at 361,. Olorunfemi vs. Asho (supra). Replying on the submissions of the appellants’ counsel on the issue, the learned counsel for the respondents submitted that they have called abundant evidence of acts of partition which they pleaded vide paragraphs 17, 18, 19, 20, 21, 22, 23, 24 and 25 of their statement of defence. He also referred to the testimonies of witnesses called by him on pages 55, 56, 59, 60, 61, 65 and 82. It was further submitted by the defendants’ counsel that based on the partitioning made in the presence of the plaintiffs and others in 1972, the appellant built on a portion of the land given to him after the partition and the plaintiff/appellant had never complained or brought any action over House 3 or any part of the disputed land prior to the death of Martin, the defendants’ father. He said all these pieces of evidence adduced by them were never contradicted or controverted by the plaintiff/appellant hence the trial court was right in acting or believing them. See Obimiami Brick & Stone (Nig.) vs. African Continental Bank Ltd. (1992) 3 SCNJ 1; Balogun & Ors vs. Agboola (1974) 1 All NLR (Pt. II) 66. The learned counsel also subm itted that evidence abounds that there was partition of the land of Nwanyegbo Chukwuma in 1972 after which parties took exclusive possession of their individual shares from that time until the death of Martin in 1994 as opposed to plaintiffs/appellant’s stance that there was no such partition of the disputed land which stance was rightly rejected by the lower court. See Williams vs. Johnson (1937) 2 WACA 253; Folorunso v s. Adeyemi (1967) NMLR 128. He remarked that an appellate court should not substitute its own views of the facts for those of the trial court. See Balogun vs. Agboola (supra). He concluded his argument on this issue by submitting that the respondents adduced ample, unchallenged and uncontroverted evidence to prove the partitioning in 19720f the disputed land and that it was not an allotment. See Omoregbe vs. Daniel Lawani (1980) 3-4 SC 177; Odulaja vs. Haddad (1973) 11 SC 357 at 365; Adel Boshali vs. Allied Commercial Exporters Ltd. (1961) All NLR 917.
In the first place, the appellant’s counsel urged the court to hold that there was no evidence of partition and that the defendants/respondents did not plead partition in their statement of defence.
I think it will be apt at this stage to refer to the relevant pleadings filed by the respondents. Paragraphs 17 to 22 of the defendants’ /respondents’ Statement of Defence will be of relevance and I shall extensively reproduce them hereunder.
Paragraph: “17. About 1972 despite the circumstance of birth of the plaintiff Martin Chukwuma, in his effort to knit the family together, with the consent of the plaintiff drew a building Plan OPA/731 which substituted Plan CHC/72 which Plan was for a storey building on the land in dispute. There was no objection to the erection of the storey building by the Plaintiff.
- The father of the Defendants, Martin who was at the time working in Lagos, about the month of November 1972 came to Onitsha on his annual leave preparatory to commencing building a house shown in the Plan mentioned in paragraph 17 above.
- Martin employed the services of labourers who commenced the digging of building foundation on the land in dispute. When Martin proceeded to buy building materials the Plaintiff challenged the labourers and stopped them from continuing to dig the foundation. When the father of the Defendants came back from where he made purchases, he was surprised to see that the labourers had downed their tools. On enquiry Martin was informed that it was on the instructions of the pJaintiff that the labourers stopped work.
- The plaintiff rushed to the land in dispute and informed Martin that he was the one who stopped the labourers from work as he had changed his mind because he wanted the land partitioned and no longer wanted Martin to build a house on the land which would be commonly owned. This infamous act of the Plaintiff was accepted in good faith by the father of the Defendants who there and then dismissed the labourers and paid them off.
- The father of the Defendants reported the conduct of the Plaintiff to the Political head of the parties Village, Chief Nwokedi, the Ogene Ukpaka of Onitsha.
- The Ogene Ukpaka of Onitsha invited both Martin and the Plaintiff and the Plaintiff made it abundantly clear before Chief Nwokedi that all he wanted was for the land in dispute to be partitioned to enable him the Plaintiff build on his own portion.
- Chief Nwokedi asked both Martin and the Plaintiff to invite some members of the family who would be present when the estate of Nwoyeugbo would be partitioned.
- In December 1972, in the presence of Chief Ogene Nwokedi, Late Joseph Osakwe, Late Elossiebo, Late Mrs. Kate Ojiegbu, Maria Obiozor, Anthony Ifeanyi Anumonye, Late Ojiede Onuora and some others including Martin and the Plaintiff partitioned the land in dispute and the Plaintiff chose the portion marked House 2 while the father of the Defendants chose Houses 3 and
1 while Obiora the son of Gilbert was apportioned House 4. Houses 1 and 4 were built up at the time.”
Thus, on the issue of whether partition was pleaded by the respondents or not, I think the above paragraphs of the defendants’ statement of defence would lay that question to rest as they speak for themselves. In paragraph 22 it was deposed that Ogene Ukpaka invited both Martin, (the defendants’ father) and the Plaintiff and the Plaintiff made it clear before Chief Nwokedi that all he wanted was for the land in dispute to be partitioned to enable him (the plaintiff) build on his own portion. It was also deposed to in Paragraph 24 supra that in December 1972 the land was partitioned in the presence of Chief Nwokedi , Chief Ogene Nwokedi, Late Joseph Osakwe, Late Elossiebo, Late Mrs. Kate Ojiegbu, Maria Obiozor, Anthony Ifeanyi Anumonye, Late Ojiede Onuora and some others including Martin and the Plaintiff himself and the plaintiff chose the portion marked House, 2 while the defendants’ father Martin chose House NO.3. Also the defendants led evidence through DW1 and DW2 to prove those pleaded facts in their testimonies which were even supported by PW2, the Surveyor, called by the plaintiff/appellant. With the state of pleadings and the evidence led in their support, I feel the finding of the learned trial judge on the issue of partition cannot be faulted or assailed. The appellant also raised the issue that “Oral partition” was also not pleaded at all by the respondents. With due deference to the learned counsel for the appellant, the important thing is whether exercise of partition was pleaded or not and as I said above, the issue of partition was adequately pleaded by the defendants.
The issue of ‘oral partition’ can be said to have been alluded to in the said paragraphs. In any case partition is one of the methods by which family property can be determined whereby such property is split up into ownership of the individual family members or among constituent members. The main condition of validity of partition is that the partitioning by the family head must be with the consent of joint owners joining in the voluntary partition of the property. Although partition could be by deed, under customary law ORAL PARTITION of property is valid. See: Taiwo VS. Taiwo (1958) SCNLR 244; Olorunfunmi VS. Asho (2000) 1 SC 15; Alao vs. ACB Ltd. (2000) 6 SC (Pt.1) 27. This therefore answers the plaintiffs/appellant’s counsel’s grouse that no deed or evidence or testimonials or mode of partitioning was led by the respondents. See also Onasanya vs. Shiworuku. (1960) WNLR 166. It is trite law that where there is evidence of partition as in this instant case, this signifies an end to communal ownership. See Chukwuemeka vs. Nwankwo (supra) at page 195; Alhaji Adebayo vs. Alhaji Olowosoga (1988) 9 SCNJ 78 at 88. In fact in this instant case and from the stage of the pleadings and the evidence led supporting them it was the plaintiff that even triggered the partitioning of the land because of his desire to build his house. Again with regard to the issue of mode of sharing I am inclined to agree with the learned trial judge that the Onitsha native law and custom also admits other methods of sharing family property in addition to Usokwu system.
On the issue of mode of partition, evidence abounds that the land was partitioned into three parts among the defendants’ father, Martin, the plaintiff, and Gilbert (Obiora’s father) in which their father as the eldest and plaintiffs uncle, was given House 3 an, 1 in Exhibit C. There is also abundant evidence that the plaintiff was given a portion of the disputed land in 1972 on which he (the plaintiff) built his house even though the plaintiff insists that it was an allotment and not partitioning and relied on Olorunfunmi vs. Asho (supra). Also as I posited above, the defendants/respondents gave uncontradicted and credible evidence on the circumstance that led to the partition which was due to Martin’s complaint to the head of the family on the behaviour of the plaintiff. It was after the exercise of the partitioning by the community head and the presence of several people including the plaintiff, that the plaintiff in 1973 erected his building on his own portion of the partitioned land. Thes pieces of evidence advanced by DWs 1 and 2 got the support of PW2 the surveyor called by the plaintiff and the sketch plan he tendered, i.e. Exhibit B which had clearly described what portion of the land was allocated to who. With all these pieces of evidence led or adduced at the trial, I think the learned trial judge was right when he dismissed the plaintiff’s claim that the exercise was simply an allotment and not partition. It is trite law that in allotment family ownership of the allotted land does not determine the family ownership as to make an allottee an absolute owner. In the instant case after the partition exercise the plaintiff lodged his mother there where she stayed or lived until her death and was even buried there. He also rented out the house to some tenants and was collecting rent without being accosted or challenged by anybody or sharing the rent he collected with anybody. He even wall-fenced his apportioned premises and got it fully secured. It was also only after Martin, (the father of the defendants) died that the appellant decided to complain. Apropos of the above I am of the firm view that the issue of partitioning was properly and adequately pleaded by the defendants/respondents and credible evidence was also led to establish that the disputed land was actually partitioned to the named persons including the plaintiff now appellant. The question posed by the appellant on the first issue is answer d in the affirmative to the effect that the evidence adduced by the defence outweighed the evidence adduced by the plaintiff/appellant.
ISSUE NO. 2
In this issue the appellant queried that the respondents did not plead “oral partition” and no evidence was also led by them to prove oral partition yet the trial judge concluded that there was one. This issue has been partially considered by me while considering the first issue supra. It is submitted by the appellant’s counsel that the issue of ‘oral partition’ was not pleaded by the defendant/respondents adding that the principle of law that parties are bound by the pleading is aimed at avoiding causing surprises and denial of further hearing. He cited Onyejekwe vs. Onyejekwe (1999) 3 SCNJ 63 at 73. He said courts should not embark on dealing with issues not raised in the pleading or give judgment on issues not canvassed by the parties at the proceeding or trial. See Rabiu vs. Hammund Projects Ltd. (2007) All FWLR (Pt. 395) 484 at 499. He further submitted there was nowhere in the pleading where oral partition was pleaded or evidence led on same, adding that the issue of ‘oral partition’ featured only in the judgment of the lower court.
The learned counsel for the appellant also in his Reply Brief urged this court to interfere with the lower court’s finding on ‘Oral Partitioning’ of the land in dispute. He relied on the cases of Balogun & Ors. vs. Agboola (1974) 1 All NLR 66,. Nathaniel O. Udolisa vs. Ofugo Nwanisoke (1973) 3 ECSLR (Pt.153) at 87, Saleby vs. Bank of the North (2006) All FWLR (Pt.310) 1600 at 1611. He argued that the trial court’s finding of facts on ‘Oral Partition’ in 1972 was not based on a proper and dispassionate appraisal of the totality of the evidence adduced before it.
I have held in the fore paragraphs of this judgment that the issue of partitioning was adequately pleaded by the defendants in their statement of defence the relevant paragraphs of which have been reproduced above.
Similarly, credible evidence was led by the defendant in support of the partitioning exercise especially those given by DW1 and DW2 as well as that of PW2, the surveyor called by the plaintiff himself. In paragraph 24 of the Statement of defence the defendants deposed that in December 1972 the land in dispute was partitioned in the presence of Chief Nwokedi, Chief Ogene Nwokedi, Late Joseph Osakwe, Late Elossiebo, Late Mrs. Kate Ojiegbu, Maria Obiozor, Anthony Ifeanyi Lumonye, Late Ojiede Onuora and others. During the partitioning exercise, the plaintiff now appellant even chose portion marked House 2, the defendahts’ father Martin chose House 3 and I while House 4 was apportioned t6 Gilbert’s son Obiora. These depositions which were backed by credible and uncontradicted evidence and to my mind, can by inference be said to be an “oral partitioning” by inference, since there was no suggestion, both in the pleadings and the evidence supporting them that the partition exercise was not reduced in writing especially since no testimonials or any written mode of partitioning was tendered by the defendants at the trial. On the stage of the pleadings I think the Issue of ‘oral partition’ can be inferred or can be implied. Therefore even though the defendants did not specifically plead oral partition or did not say that the land was orally partitioned by the family head, it can be said that the land in dispute was partitioned orally. It is settled law, that customary law or native law recognizes oral partition. In the instant case the pleadings can be said to have even alluded that the partition was made orally by the spiritual head of the family, i.e. DW2 in the presence and with the consent of all the family members. In that circumstance therefore, the finding of t e learned trial judge that the land was partitioned orally could not be said to have introduced new issues not presented by the parties, especially since as rightly held by the trial judge, the oral partition is allowed under customa1law. I am unable to agree with the plaintiff’s counsel’s submission that the trial court had by such finding made a case for the parties which they did not make for themselves. This issue is thus resolved against the appellant.
Issue No.3
The next or third issue for determination queries whether there was a misdirection on the part of the trial court for not presuming under Section 149 (d) of the Evidence Act that witnesses especially Mrs. Maria Obiozor, who was allegedly present at the partitioning exercise, were not called or withheld by the defendants because their e1idence would be unfavourable to their case if they had been called. The learned counsel for the appellant argued that since issues were joined by parties on the partitioning of the land in dispute on the people who were alleged to be present at the partitioning exercise, the respondents as defendants, ought to have at least called Maria Obiozor who is the only surviving person named, to testify. The learned counsel for the appellant concluded his submission on this by arguing that the failure of the trial court to presume under Section 149(d) of the Evidence Act, that her testimony was withheld by defendants/respondents because it would be unfavourable to them, had amounted to misdirection.
The respondents’ counsel in reply to the above submissions by the appellant’s counsel, argued that Section 149 (d) of Evidence Act, relied on by the appellant is not applicable to the present circumstance of this instant case as rightly held by the learned trial judge. He cited and relied on the cases of Samuel Onwujuba & Ors. vs. Nathanial Obenu & Anor. (1991) 5 SCNJ 4 at 46/47; AG Adamawa State vs. Jauro Ware (2006) All FWLR (Pt.306) 860 at 879 E.
By the provisions of Section 149(d) of the Evidence Act 1990, a court may presume that evidence which could be and is not produced, would if provided be unfairvourable to the person who withholds such evidence. From the wordings of the section, it clearly shows that the said provision simply deals with the failure to call evidence and NOT the failure to call any particular witness. See Bells VS. Kasim (1969) NMLR 148 at 158; Latinwo vs. Ajao (1973) 2 SC 99, Samuel Onwujuoa & Ors s. Nathaniel Obienu & Ors. (1991) 5 SCNJ 4 at 46/47 also reported in (1991) 4 NWLR (Pt.183) 16 at 19 where Uwais JSC (as he then was) while interpreting the provisions of Section 148(d) of the old Evidence Act now Section 149(d) of the Evidence Act 1990 had this to say on page 152.
“It is clear from the provisions of Section 148 (d) that what is required before the presumption therein applies is the failure to call evidence and not the failure to call a witness. Although a witness, when called provides evidence in his testimony such evidence may be adduced in other ways. For instance a document may be tendered which may make it possible to dispense with the evidence of a witness or another person capable of so doing testifying may be called instead of that particular witness. When that happens, the presumption in Section 148 (d) becomes inapplicable. In the present case the complaint is that the witnesses had not been called and not that the evidence which they could have given, was not adduced. A party is not under any obligation to call a particular witness or witnesses if he can prove his case without calling the witness. See Bello vs. Kassim (1969) NMLR 148. There is no obligation that a particular evidence has been withheld with the failure to call evidence that is material before the presumption in the provisions therein can apply – See Bello’s case (supra) at p. 152.”
Now in the instant case, the grouse of the appellant is that Mrs. Maria Obiozor who was alleged by the defendant to be present during the partition exercise was not called to testify. To my mind whatever she would have testified on if she was called was stated be DW2. The plaintiff/appellant ought not complain that any evidence in that regard was not adduced. The evidence and not failure to call a particular or named witness. After all, the law is trite that evidence law requires parties to present their case by calling the best evidence available. This is what is referred to as “the best evidence Rule” in law of evidence. See Ezemba vs. Ibeneme & Ors (2004) 14 NWLR (Pt. 849) 617. In the instant case on which the complaint not on failure to call a particular witness, the provisions of Section 149(d) of the Evidence Act is not applicable at all. The election did not envisage failure to call a particular witness. Before a court call make a presumption under the said provision, there must be failure to call any evidence of a pleaded fact as in this case. See: Nigerian Airforce vs. OBiose (2003) 4 NWLR (Pt. 810) 233; Balogun vs. State (1996) 7NWLR (Pt.460) 279; Mandilas & Karabes Ltd. vs. IGP (1988) SCNLR 335; AG Adamawa State vs. Jona Jauro Wase & Ors. (Supra). In the light of what I have said supra, therefore, I agree with the finding of the lower court that Section 149(d) of Evidence Act is inapplicable in this instant case. The issue is resolved against the appellant too .
Issue No.4
The fourth Issue for determination poses the question whether the appellant had ever admitted that he was the absolute owner of part D which he occupied and as a result had never complained to any body until after the death of Martin the defendants’ father. I think no much dissipation of energy or exasperation need to be applied to deal with this issue in the light of my holding or comments above when treating the first and second issues supra. When treating those issues, I stated that the land in dispute was actually partitioned howbeit, orally and not allotted as being suggested by the appellant. I also opined that  the issue of partition was adequately pleaded by the defendants and that the defendants had called credible evidence to back their depositions on partitioning of the land. To now embark on consideration of difference between partition and allotment will be otiose and will not serve any meaningful or useful purpose. Also the use of the words “allotment” , “apportionment “, or “giving” with regard to the land in dispute as introduced in the appellant’s brief of argument is in my view, mere semantics. While adopting the relevant portion of my discourse on issues I and 2 supra to apply to this issue, I hold that the attitude of the appellant and disposition and ownership on the portion of the land partitioned to him, such as erection of building, renting part of it to his tenants and exclusively collecting rent and his lodging of his mother on the premises until her death and her burial of the land are pieces of evidence showing that he himself portrayed himself as absolute owner of the portion of the land after the partitioning exercise to the exclusion of any other member of the family. By his attitude he thus portrayed himself as the absolute and sole owner of the land partitioned to him, From such attitudes or behaviour of the plaintiff/appellant also by not complaining until Martin died go far to show that he was and had recognized himself as the absolute owner. The issue will naturally be resolved against the appellant and I do just that.
Issue No.5
This last issue revolves on the admission of Exhibit E. The appellant by so framing this issue seems to be suggesting that that admission in evidence of Exhibit E it has adversely affected by the case for the defendants and further strengthen his case to the effect that there was in fact no partitioning of the land in dispute. Exhibit E is a motion on Notice dated 4/8/94 which was supported by an affidavit sworn to by the first defendant (DW1) on 8/8/94 filed in earlier suit No. CCON/34/904 then before the Customary Court, Onitsha. In the course of the proceedings at the lower court and while DW1 was being cross examined by the Appellant’s counsel, he confirmed what he stated on oath in the affidavit supporting that motion as follows:
“10 That the father of the defendants/applicants occupied and “was throughout his life in possession of 25 Ojedi Road, Onitsha, bona fide”. I recall that the said father died in 1994, that is some 22 years after the alleged partition of 19V2 (see paragraph 13 of the same affidavit.
- That the plaintiff/Respondent was allocated the portion where he built a house known as 25A Ojedi Road, Onitsha by the defendants/Applicants’ father.”
The above mentioned motion on Notice was tendered in evidence and admitted during cross examination of DW1 with the consent of the learned counsel for the defendants and marked Exhibit E by the lower court. The learned counsel for the appellant submitted that all that had been averred in the affidavit supporting the motion is confirmed by the witness DW1. But in reaction to the said exhibit (i.e. Exhibit E) the lower court in its judgment held thus:
“I have looked at Exhibit E which is the proceedings of the Customary Court before this case was transferred from there to the High Court. Nothing in Exhibit E is sufficient to make me held that there was no partition.”
On the attitude of the lower court with regard to its holding on Exhibit E, it was the submission of the learned appellant’s counsel that the court was wrong in its holding supra without basing its finding on any disclosed reason. He argued that those pieces of evidence came out in Exhibit E and confirmed orally in court had amounted to admission that there was no partition and that is also fatal to the defence.
Reacting to the appellant’s counsel’s above submission on this issue, the learned respondents’ counsel argued t at exhibit E was not pleaded by either parties to the proceedings and as such any evidence contained therein goes to no issue, adding that both parties ale bound by their pleadings. See Anumaka Emegokwue vs. James Okadigbo (1973) 4 SC 113 at 117/118-110.
In further submission on this, the respondents’ counsel again argued that evidence given in previous case cannot be accepted except in conditions specified in Section 34(1) of the Evidence Act. He said even where a particular witness testified in previous proceedings and also testifies again in subsequent proceedings, the previous evidence has no greater value than its use in cross-examination of the witness as to his credibility. See Dada vs. Bankole (2008) 33 NSCQR 110 at 231. He said also that Exhibit E having not been pleaded by the Plaintiff/appellant and also having not complied with Section 34(1) of the Evidence Act, the learned trial judge was correct in holding that there was nothing in Exhibit to make him find that there was no partition of 25 Ojedi Road, Ontisha. See Anyinde vs. Salawu (1989) 3 NWLR (109) 297 at 315; Alade vs. AborJhade (1960) 5 FSC 167; Ikenye vs. Opume (1985) 2 NWLR (Pt.5) 1 at 6/8; Sanyaolu vs. Coker (1983) 1 SC NLR 16.
Another submission made by the lead counsel for the respondent is that the evidence in Exhibit E was procure1 during cross-examination which going by the dictum of Niki Tobi JSC in the decision of Samuel Isheno vs. Julius Berger Nigeria Ltd. (2008) 33 NSCQR 296 would not be admissible.
He referred to page 319 of the decision were the learned jurist, Niki Tobi, JSC said as below:-
“The cliche or aphorism that the sky is the limit of cross-examination is not good law. This is not because (to put it lightly) the lawyer is not an astronomist or astronomer, but because there is no such law. The discipline of the law is one which is characterized by limitations here and there and cross-examination cannot occupy such a tall and enviable place in our law of procedure.”
I think at this stage it will be only fair if the correct position of the law on evidence of witness taken in an earlier proceeding is stated. The law is trite and well settled too, that evidence of a witness taken in an earlier proceedings is not relevant in a later trial or proceeding except for the purpose of discrediting such a witness in cross-examination and for that purpose alone. In Ariku vs. Ajiwogbo (1962) All NLR (Pt.4) 629, Ademola CJF (of blessed memory) delivering the judgment of the Supreme Court succinctly stated the law as follows:
“This court has frequently directed a
ttention to the practice now not uncommon of making use of evidence of witness in the case on trial. As I as pointed out in Alade vs. Aborishade 5 FSC 161 at 171, this is only permissible under section 33 or 341 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying but evidence used for this purpose does not become evidence in the case in hand for another purpose. There are also prerequisites to the making use of the former testimony of a witness; for example this allusion must be called to the former case where such evidence was given and he would be reminded of what he had said on the occasion.”
(Emphasis supplied by me).See also Adeyemi Ogunnouke vs. Taiwo Ojeyemi (1987) 3 SC 213. In the instant case Exhibit E was tendered during cross-examination through DW1 while he was testifying. On the authority of the decided cases mentioned supra, Exhibit E is admissible for the purpose of discrediting him (DW1) only to ascertain if he was lying. Such evidence cannot however be meant to be used for any other purpose in the case at hand. I think the learned counsel for the respondents misconceived the position of the law when he argued that it was not admissible at all (or at least for purpose of cross-examination) simply because it was not pleaded by the appellant or that it goes to no issue or that having been raised outside the pleadings by parties to testify on it goes to no issue. All the deci1ed authorities he cited and relied on that point are irrelevant and inapplicable. I closely followed the circumstance leading to the tendering of Exhibit E. All pre-requisites to be met before tendering them were followed. For instance the document was tendered during cross-examination and his attention was first of all drawn to the former case where he gave such evidence as well as what he testified on such occasion. The conditions precedent for admitting the document i.e. Exhibit E had therefore been met. Tile issue of it not being pleaded hammered by the respondents counsel is therefore of no moment since it only serve the purpose of discrediting the witness. Now coming to the grouse of the appellant’s counsel on the trial judge’s remarks when he said there was nothing in the said exhibit to make him “hold that there was no partition”. As I said above, the only recognized purpose of Exhibit E is just to discredit PW1. It is not an evidence to be used for any other purpose except discrediting the said witness. The learned trial judge is therefore correct when he said its contents cannot change his stance that there was partition or for him to say now that in the light of Exhibit E there was no partition. By so saying, all he meant in my view was that he was not attaching any or much value or weight to it as would make him change the earlier opinion he held on the issue of partition. That was actually not the purpose for which Exhibit E was tendered or was meant to be tendered by the plaintiff/appellant. The stance of the learned trial judge with regard to the effect of Exhibit E cannot therefore be faulted or assailed. His refusal to see anything contained in Exhibit E to make him find that there was no partition is correct and balked by law and I accordingly endorse same. I therefore hereby hold that the admission of Exhibit E in evidence did not adversely affect the case of the defence that there was partition of the land in dispute especially if one refers the DW1’s adamant insistence under cross-examination when answering a question put to him by the plaintiffs counsel that there was no partition at page 73 of the record where he quickly answered as follows:
“There was partition as I said by Ogene and some elders of the village in 1972.”
(See page 73 of the Record of Appeal). T is shows that he remained rigid and resolute on the issue of partition. Thus, in the light of all I stated above, I hold that Exhibit E did not adversely affect the case of the defence and as well, it did not at all support the appellant’s case that there was no partition of the land in dispute situate at 25 Ojedi Road, Onitsha. The fifth issue ought to be resolved against the appellant and I accordingly do same.
It is the general rule that an appellate court would not interfere with or disturb the decision of a trial court except where it is shown that the trial court fell into error in its evaluation of the facts or applied the law erroneously to findings of facts which were properly made. See Mogaji vs. Odofin (1978) 4 SC 1; Ojukwu vs. Obasanjo (2004) 12 NWLR (Pt. 886) 169 at 214. In the instant appeal, I am unableto say that the lower court had wrongly evaluated the facts before it or that it had applied the law wrongly.
I therefore see no cogent reason why I should disturb or interfere with the decision reached by the learned trial judge.
On the whole, I hold that the appeal is devoid of any merit. It woefully fails and is accordingly dismisse6 by me. The judgment of the lower court delivered on the 8th of October 2007 in Suit No. 0/238/95 dismissing the claims of the plaintiff/appellant is hereby affirmed.
Costs assessed at N30,000 only, is awarded against the appellant in favour of all the respondents.
Other Citations: (2009)LCN/3386(CA)
