Aishatu Abubakar & Ors. V. Laraba Ali & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ ABA, J.C.A.
This is an appeal against the judgment of the Hon. Justice Bashir Sukola of the Kaduna State High Court, delivered on the 11th day of April, 2002, dismissing the appellants’ claims and holding that the disputed property situate at No. L.G.3, Kaltungo Road, Tudun Wada, Kaduna, devolved in the heir of late Ali Mai Ungwa.
The appellants who were the plaintiffs before the lower court for a writ of summons dated the 27th day of May, 1998 before the Kaduna State High Court and subsequently filed their statement of claim dated the 30th day of April, 1998, filed on the 22nd day of May, 2002.
The appellants as plaintiffs by their paragraph 14 of their statement of claim, claim the following:-
“14. WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:-
(a) A declaration that property situate at No.L.G.3, Kaltungo Road, Tudun Wada, Kaduna belongs to late Ibrahim Ali.
(b) A declaration that the plaintiffs are entitled to inherit the aforesaid property situate at LG.3, Kaltungo Road, Tudun Wada, Kaduna left behind by their deceased husband and/or father.
(c) An order directing the defendants to give full account of the rents collected from tenants occupying the property from June, 1996 to the date of judgment.
(d) An order restraining the defendants or their agents, servants or privies from interfering with the plaintiffs inheritance rights in the property situate at LG.3, Kaltungo Road, Tudun Wada, Kaduna.
(e) In the alternative, and if the court found that the property belong to Mallam Ali:
(i) a declaration that the 2nd, 3rd and 4th plaintiffs are entitle to share in the inheritance of the properties of their grand father, late Mallam Ali including property situate at LG.3, Kaltungo Road, Tudun Wada, Kaduna;
(ii) An order directing the defendants to give full account of the rents collected from tenants occupying the property from June, 1996 to the date of judgment.
(iii) An order directing an Upper Area Court in Kaduna to share the property in accordance with Islamic personal law.” Pleadings were ordered filed and exchanged between the parties.
As the action was sought on pleadings, it is pertinent to reproduce some relevant averments contained in the statement of claim and defence relied upon by the parties as well as the court in determining the suit.
I consider paragraphs 1 – 11 of the statement of claim relevant and they are hereby reproduced below:
“1. The 1st plaintiff is the Widow of one Ibrahim Ali (deceased) and mother of the 2nd, 3rd and 4th plaintiffs.
- The 2nd, 3rd and 4th plaintiffs are children of late Ibrahim Ali and grand children of one Mallam Ali (deceased).
- The 1st and 2nd defendants and late Ibrahim Ali are children of late Mallam Ali, but the late Ibrahim Ali predeceased the father; while 3rd defendant is a son of 1st defendant and he collects rents and manages the property situate at No.LG.3, Kaltungo Road, Tudun Wada, Kaduna.
- The late Ibrahim Ali bought a house situate at Tudun Wada, Kaduna (the property is now popularly known as LG.3, Kaltungo Road, Tudun Wada, Kaduna) from one Mallam Tambaya Mai-Alewa at a cost of ?6.10 on 11th April, 1954 and the aforesaid sale was reduced into writing in Hausa language. The plaintiffs shall found and rely on the photocopy of the said Sale Agreement at the trial.
- The plaintiffs aver that late Ibrahim Ali lived in the aforesaid property with his parents and the plaintiffs until his death.
- The plaintiffs aver that late Ibrahim Ali and his parents were Muslims who died intestate.
- The plaintiffs aver that after the death of Ibrahim Ali, the defendants made life unbearable for them, so they had to vacate the house.
- The plaintiffs avers that after the death of Mallam Ali, the defendants started dealing with the property in a manner prejudicial to the plaintiffs’ interest in the property by collecting rents from tenants and offering the property for sale.
- The plaintiffs shall contend at the trial that they are entitled to inheritance from the properties left behind by their late husband and/or father or grand father.
- The 2nd, 3rd and 4th plaintiffs shall contend at the trial that even if the property belongs to their grand father, late Mallam Ali, they are entitled to share the property with the 1st and 2nd defendants in accordance with the relevant Islamic personal law.
- The 2nd, 3rd and 4th plaintiffs say that since the death of their grand father in July, 1996, the defendants and particularly the 3rd defendant have been collecting rents from tenants occupying the property which has 11 (Eleven) rooms without accounting or giving them their share of the rents.”
The defendants now respondents filed a statement of defence containing fifteen paragraphs and the averments that I consider relevant are as follows:-
“(1) The defendants admit paragraph 1, 2 and 3 of the statement of claim.
(2) The defendants deny paragraph 4 of the statement of claim aver further that the purported sales agreement if at all available must be fake.
(3) The defendants avers that on the 9/5/1951 MALLAM ALI MAI UNGUWA (The father of the 1st and 2nd defendants and grand father of the 3rd defendant) bought and paid for house No.L.G.3 (The subject matter) from Mallam Muhammadu Mainama in the presence of Madakin Tudun Wada, Mohd Bzanfare and Jibo dan tagudu. The transaction was evidenced by a sales agreement written in Hausa which was executed by all the parties there to and the witnesses. The defendants shall at the trial rely upon the said sales agreement with English Translation and same are hereby pleaded.
(4) That the defendants admits paragraph 5 of the statement of claim.
(8) That the defendants deny paragraph 9 of the statement of claim and add that the father to the plaintiffs pre-deceased the said Mallam Ali. (We shall rely on the Islamic Law of succession which deny inheritance to pre-deceased person whom the plaintiffs are claiming through).
(15) WHEREOF the defendants counter against the plaintiffs jointly and severally as follows:-
(i) A declaration that the property situate at No.LG.3, Kaltungo Road, Tudun Wada, Kaduna belong to MALLAM ALI MAI UNGUWA.”
At the hearing of the suit, two witnesses namely, Ibrahim Iro Kude, Alhaji Abubakar testified for the appellants where the appellants testified at pages 14 – 21 of the record I consider it imperative to reproduce same portions of their evidence as follows:-
“My names are Ibrahim Iro Kude I live at L.G.4 Kaltungo Road, Tudun Wada Kaduna. I am a Stone Crusher. I am 72 years old. I know all the plaintiffs. I also know the defendants. I was called to testify as a witness in respect of a house belonging to Ibrahim Ali Maitukunya. I know Ibrahim Ali since 1954.
It was during the Queen of England’s visit to Nigeria that I met Ibrahim Ali although I knew him in Jos prior to the visit of the Queen. I was then residing at No. 8 Gwandu Road, Kaduna where he requested me to accompany him to a house he purchased at L.G.3 Kaltungo Road Tudun Wada Kaduna very close to my own house.
At the material time I had not bought my own house but he advised me to buy the house close to his own. The said Ibrahim Ali is now deceased. He informed me that he bought the house in issue. The said Ibrahim Ali bought over the house from one Tambaya Maialewa. I knew late Ibrahim Ali’s father, his father’s name is Ali Maitukunya. I now reside at No. L.G.4 Kaltungo Road Tudun Wada Kaduna since the Nigerian Civil war. Ali Maitukunya was accommodated in the house in issue by Ibrahim Ali. Also Ali Maitukunya is now deceased. Ibrahim Ali predeceased Ali Maitukunya. At a time, Ali Maitukunya called on me to send a message to Ibrahim Ali to send down some money for the preparation of title deeds over his house as directed by Kaduna Administrator (now Kaduna North Local Government) in radio announcement. I did send the message to Ibrahim Ali. Ali Maitukunya later informed me that Ibrahim Ali sent down ?30.00 to him for that purpose i.e. preparation of title deeds. Ali Maitukunya did not process the title deeds of the house with that money. The said Ibrahim Ali told me that his father never processed the titled deeds for the house but he showed me the purchase agreement of the house in issue. I again saw the same document in the possession of his wife who is the 1st plaintiff in this case. I can identify a photocopy of the said purchase agreement.”
“P.W.1 continued: I can identify same by the reflection of ?6:10s being the consideration for the house and 7s 6p commission. This is a photocopy of the purchase agreement referred to.”
“P.W.1 continue:- Ibrahim Ali resided at L.G.3 Kaltungo Road Tudun Wada Kaduna before he died.
Mr. Mohammed – That is all for the witness.
Cross-examination of PW1 by Mr. Gadau.
“I know that affirmation and swearing on Oath are the same. It will be unreasonable for me to tell lies considering my age. I cannot remember exactly the year Queen Elizabeth visited Nigeria I was not present when the said Ibrahim Ali purchased the house. I was told by Ibrahim Ali, and confirmed by his parents but I never witnessed the transaction. Ibrahim Ali usually informs me about most of the things he does because we were very close. I have a lot of friends along Kaltungo Road Tudun Wada Kaduna. I do not know exactly how long Ali Maitukunya lived in the house in issue. The said Ibrahim Ali had an earlier marriage before he married the 1st plaintiff. I do not know where he accommodated his previous wife. I moved into my house L.G.4 Kaltungo Road, Kaduna the year the Civil War ended. It was true that the said Ali Maitukunya had at a time sent out Ibrahim Ali packing from the house in issue. As a muslim and islamically a father has a right over his child and his belongings. I am reasonably knowledgeable in Islamic jurisprudence. I cannot recall any authority off head to support the assertion of control by a father over his child and the belongings of the child:
Mallam Tambaya Mai-alewa was the original grantee of the plot over which the house in issue was built and he (maialewa) sold the house to Ibrahim Ali. Mallam Tambaya Maialewa is now deceased. He was residing at Tudun Wada before his death I knew Tambaya Maialewa in person but do not know when he died. I do not know when Ibrahim Ali bought over the house in issue. I cannot remember the year Ali Maitukunya died. I know one Hassan Kabido and he also knows me. I do not know of any gift of a house by Ali Maitukunya to Ibrahim Ali anywhere. I know Mallam Mamuda and Audu Gora. That is all.”
“1st plaintiff – affirmed – speaks Hausa. My name is Aishatu Abubakar. I live at No.47 Kaje Road, Tudun Wada Kaduna. I also know all the defendants, we filed this action because my husband’s house we all are residing together with my father in-law. My late husband owns the house. My late husband was known as Ibrahim Ali. The house is known as No. LG.3 Kaltungo Road Tudun Wada Kaduna. I came to know that the said house belongs to my late husband because he instructed me to take possession of the title deeds of the house and hold same. I checked a box and found the title deeds and same are in my possession. They are now in court. The documents had been tendered in court for identification purpose. I can identify the title deeds/documents by means its contents which bear a thumb print and the handwriting. This is the document I found in the box.
Mr. Mohammed – We seek to tender the document identified by the witness in evidence as same was tendered for identification by PW1.”
“Court – A perusal of the document sought to be tendered clearly reveal that same is a photocopy of the original document. The 1st plaintiff did not give evidence as to the existence of the original document or that same is missing or destroyed and that all efforts aimed at tracing same prove abortive. The said document therefore does not fall within the exceptions of secondary admissible evidence as the conditions necessary to confer admissibility on it do not appear to exist. I therefore reject the said document in evidence under section 96 and 97 of the Evidence Act and same shall consequently be so marked.”
“1st plaintiff continued – I did not find or discover any other thing. I can not remember how many years we lived in the house. The 2nd, 3rd, and 4th plaintiffs are my children with my late husband. one Mallam Ali Maianguwa was my father-in-law. The 1st and 2nd defendants are my late husband’s younger sisters. The 3rd defendant is a son of the 1st defendant. There are ten (10) rooms and one reception in the house. My father-in-law Ali Maiangwa died in 1996. None of the plaintiffs ever received any rents since 1996. The 3rd defendant has been collecting rents from the house.
I pray the court to hold that the said house belonged to my late husband. I also pray the court to order the defendants to account for the rents they collected. I also want the court to note that even if the house belonged to my father in-law, the 2nd, 3rd and 4th plaintiffs are entitled to a share of inheritance under Islamic Law.
That is all.”
Cross-examination of the 1st plaintiff:-
“I cannot remember exactly the year I married late Ibrahim Ali. I was the only person present in the room with my late husband when he instructed me to take possession of the document. I am not aware of any WILL left behind by my late husband. I am not aware that my late husband previously ever married four wives. I married my late husband in Sokoto. We lived in Sokoto shortly and subsequently moved to Kaduna. In Kaduna we lived in the said premises. We moved into the house and met my father in-law together with my mother in-law. The 3rd defendant was then not living in the house. We lived peacefully with my parents in-law I know Mallam Mamuda and one Audu Gora. I was never at any time ejected from the house. My late husband predeceased my father in-law. I packed out of the house because of the quarrelsome nature of my father in-law.”
“3rd defendant – My names are Lawal Mohammed. I live at F.Z.8 Kaltungo Tudun Wada Road, Kaduna I am a trader. I am 50 years old. I know the 1st and 2nd defendants. I also know the plaintiffs. I also know house No.LG.3 Kaltungo Road Tudun Wada Kaduna. The said house belonged to late Alhaji Ali Maiangwa. He bought the house in 1951 and he is my maternal grand father. He bought the house from one Mallam Mohammadu Mainama. There is a receipt evidencing the purchase and other witness. There is another document containing the transaction between the seller and the purchaser. I will identify the document by the names of the seller (Mohammadu Mainama), Maiunguwa Madaki, Mallam Audu Bazenfare, Mamman Danta Kudu and their respective signatures. There are the documents refer to.”
“Court – I have perused the documents sought to tendered together with the submissions of counsel for both parties and I am of the view that relevancy governs admissibility as enshrined in our laws. The documents sought to be tendered relate to the house in dispute with No. LG.3 Kaltungo Road Tudun Wada Kaduna. I also agree with the defence counsel that the transaction was made in 1951 under native law and custom which was and still is the method by which our native populace conduct their business. Again by paragraph 3 of the statement of defence, the documents have been duly pleaded. The backbone of the objection seemingly relate to the weight to be attached. The objection is consequently over-ruled. The said documents are accordingly admitted in evidence and marked exhibits D1, D2 and D3 respectively for the Departmental Receipt, sale agreement and its English translation and same shall be so marked.”
“3rd defendant continued – Mallam Ibrahim Ali is now deceased. He was my uncle. He was the elder brother of both the 1st and 2nd defendants. Mallam Ali Ibrahim is also now deceased. The 1st and 2nd defendants own the house in dispute. Mallam Ibrahim Ali predeceased Ali Ibrahim. There was a period of 10 years in between their death.
The 1st and 2nd defendants became owners of LG.3 Kaltungo Road Tudun Wada Kaduna as they inherited same from their late father Mallam Ali Ibrahim. However, house No.D.16 Yantukwanne, Tudun Wada Kaduna was given to late Ibrahim Ali by Mallam Ali Ibrahim during his life time on the condition that he was jobless and that same shall be his inheritance outside LG.3 IKaltungo Road Tudun Wada Kaduna. I can identify a written document to that effect. The late Ali Ibrahim gave me the documents. I can identify same by its date in 1977 and the names of the witnesses as follows:-
- Mallam Mamunda Maianguwa
- Audu Gora
- Liman Mallam Idi
This is the document referred to in my evidence.
Mr. Gadau – We seek to tender the document in evidence together with its English translation.
Mr. Mohammed – We object to the admissibility of the document as same has not been pleaded. Paragraph 14 of statement of defence pleaded a sales agreement between late Ibrahim Ali and Mallam Kabido. The document is however a sale agreement. I urge the court to reject the document in evidence.”
“Court – The document sought to be tendered contains a transaction between the late Ibrahim Ali and late Mallam Ali Ibrahim which borders on inheritance in the event of Mallam Ali Ibrahim’s death. The issues in dispute before me are substantially the qualifications or otherwise of Ibrahim Ali’s inheritance touching on ownership of LG.3 Kaltungo Road Tudun Wada Kaduna. I therefore find the said document relevant to the issues in dispute. Accordingly, therefore, the objection is overruled. The said document dated 5th September, 1977 together with its English translation is admitted in evidence and marked exhibits D4 – 5 and deemed as read.”
“3rd defendant continues – The late Ibrahim Ali did sell the other house to Mallam Hassan Kabido as the transaction was in writing which document was given to me by late Ali Ibrahim. The document given to me was a photocopy. The original is in possession of Hassan Kabido. I can identify the photocopy of the document by means of its date in 1977, the witnesses as follows:
- Isa Lochi
- Ibrahim Ali
This is the document referred to in my evidence.
Mr. Gadau – We seek to tender the document in evidence.
Mr. Mohammed – We object to the admissibility of the document as same is not relevant to this proceedings.
Furthermore the document is a secondary copy which is inadmissible in evidence except those mention in section 97 of Evidence Act. We urge the court to reject the document.”
“D.W.1 – My name is Alhaji Hassan Kabido. I live at D.16 Yantukane Zango Road, Tudun Wada Kaduna. I work at Immigrations Department Kaduna Zonal Command. I am 66 years old. I only know the 3rd Defendant but I do not know the 1st and 2nd Defendants. I am in Court to testify about my house No. D.16 ‘Yantukwane Zango Road Tudun wada Kaduna.
I was residing within the quarters of this court (old Court of Appeal Kaduna) and my late friend Bello then working with NTA informed me about house for sale which is No. D.16 ‘Yantukwane Zango Road, Kaduna. I bought the house from one Mallam Ibrahim the son of Mallam Ali Maitukunya. I executed a sale agreement which is with me. I will be able to identify the sale agreement by my signature. The agreement was written in Hausa language. This is copy of the original as executed by parties.
Mr. Gadau – We seek to tender the agreement for identification purpose and in evidence.
Mr. Mohammed – We are objecting to the adminisibility of the document in evidence on the grounds that it is a registrable instrument and same has not been so registered and therefore inadmissible under section 15 of Land Instrument Registration Law.
Furthermore, a photocopy of the same document was tendered and rejected in evidence. I submit that this court is already funtus officio as regards the tendering of this document. I submit that the said document which purports to transfer Certification of Occupancy No.007666 is void for lack of consent by the Governor or Local Government Authority. A void document is irrelevant. I urged the court to reject same in evidence and mark same accordingly.
Mr. Gadau – The document sought to be tendered is very relevant to the instant document and same is pleaded in paragraph 14 of the statement of defence. Furthermore, transaction between the witness and the deceased father of the Plaintiffs is one under native law and custom. The Plaintiff’s counsel cited the section 15 of the Land Instrument Registration Law off head. I urge the court to discontenance the Plaintiff’s objections and admit the document in evidence. That is all.
Court – The document sought to be tendered is the original sale agreement between the witness and one Mallam Ibrahim Ali Maitunkunya which the witness has sufficiently identified being one of it makers.
Furthermore, paragraph 14 of statement of defence pleaded a secondary evidence in the form of a photocopy and now the original copy is being tendered. Be that as it may, the original document being the primary evidence is most preferred. I find the document relevant to the instant proceedings and accordingly admit same in evidence and mark same exhibit F. The objection by the Plaintiffs Counsels are therefore overruled.”
D.W.3 at page 33 of the record stated:
“My name is Laraba Ali. I live at Kujama Village. I am 55 years old. I am a pot moulder. I know the Plaintiffs. I am in court because I am sued by the Plaintiffs in respect of a house situate at Tudun wada Kaduna. They allege or claimed that the house in dispute belonged to her husband. It is not true that the house belonged to her husband as it belongs to Ali Maiunguwa. I accept all the testimonies of the DW2 i.e. 2nd Defendant and accordingly adopt same as mine. That is all.”
After hearing all the witnesses, for the parties and address by counsel to the parties, the learned trial Judge, in his reserved and considered judgment contained at pages 42 – 57 of the record, inter alia, held:-
“I have taken a critical looks at exhibits D2 and D4 and E1 which seemed to give or create an impression of old age. Although their contents seemed credible in proof of the Defendants defence the said exhibits where only deliberately smoked. Similarly the postage stamps affixed to Exhibit D2 bears a 10k postage stamp on a transaction purportedly made in 1951. There is therefore and grave simpicion on the genuiness and credibility of the said documents and their respective transliterations. I shall for there reasons attach little weight to their contents.
Finally, I am of the considered view that the Plaintiffs have failed by preponderance of evidence to establish their claims of title over property No. L.G.3 Kaltungo Road Tudun Wada Kaduna. Accordingly their claim in paragraph 14 of their statement of claim fails in its totality. In the same vein, their alternative prayer fails for want of original jurisdiction which reside in an Area or Islamic Court having jurisdiction over Islamic personal law regarding qualifications or disqualification of heirs under Islamic Law as enunciated in the Holy Quran. The Plaintiffs claims are therefore dismissed. I hold that the property No. L.G.3 Kaltungo Road Tudun Wada Kaduna belonged to Mallam Ali Maiunguwa otherwise known as Mallam Ali Maitukunya which now devolved on his heirs, having accepted and preferred the oral testimonies of the Defendants in proof of title of late Mallam Ali Maiunguwa alias Ali Maitukunya.”
The appellants were dissatisfied with the judgment of the trial Court as a result the appellants by their notice of appeal dated the 13th day of April, 2002, filed on the 6th day of May, 2005, containing three grounds of appeal to be found at pages 58 – 66 of the record.
Briefs of argument were filed and exchanged between counsel to the parties in compliance with the Rules of Practice and Procedure of this Court.
The appeal came up for hearing on the 4th day of June, 2009. Counsel to the parties adopted their respective briefs.
The appellant’s at page 3 of the appellants brief dated the 4th day of April, 2003, filed on the 29th day of April, 2003, in which the appellants formulated four issues for determination in this appeal as follows:-
“1. Whether the rejection of the photocopy of the sale agreement in respect of the disputed property is, in the circumstance of this case, proper? Ground 1.
- Whether the trial court properly entered judgment in favour of the respondents in respect of the disputed property in the absence of a valid counter-claim? Ground 2.
- Whether the trial Court’s discountenance of the evidence of PW1 as being hear-say proper in law? Ground 3.
- Whether the trial Court (sic)evaluate and/or give proper weight to the evidence led at the trial? Ground 4.”
The respondents on the other-hand in the respondents’ brief deemed filed on the 11th of June, 2007, by order of this court, adopted the four issues formulated by the learned counsel for the appellants and formulated a single issue at page 13 of the respondents’ brief as follows:-
“5. Whether the Defendants have valid counter claim.”
It is not uncommon for an appeal court to formulate an issue or issues for determination based on the grounds of appeal filed where the issues formulated are inadequate for the determination of the appeal. See OGBUNYINYA V. OKUDU NO.2 (1990) 4 NWLR (PT.146) 551; BANKOLE V. PELU (1991) 8 NWLR (PT.211) 523; LEKWOT V. JUDICIAL TRIBUNAL (1993) 2 NWLR (PT.276) 410; SHA (JNR) V. KWAN (2000) 8 NWLR (PT.670) 685 at 708 – 709. Where both sides have failed to formulate the relevant and necessary issues for the determination of the appeal, this Court is of course entitled to frame the issues the consideration of which will lead to the just determination of appeal. See BANKOLE V. PELU (1991) 8 NWLR (PT.211) 523 and TITILOYE V. OLUPO (1991) 7 NWLR (PT.205) 519 S.C.
Having examined the issues formulated by both parties to this appeal, I find it imperative in this appeal to formulate a single issue for the determination of this appeal. The issue is as follows:-
“Whether having regard to the pleadings and evidence adduced by the parties, the judgment of the trial court can be sustained?
Arguing his issue No.4 relevant to the issue formulated by me, learned counsel for the appellant, Umaru A. Mohammed, Esq, in the appellant’s brief submitted that it is now settled law that a trial court must endeavor to appraise and evaluate evidence adduced before it, both oral and documentary in the determination of any dispute. See SALAKO VS. DOSUNMU (1997) 8 NWLR (PT.571) 371 and UMOGBAI VS. AIYOMHOBA (2002) 8 NWLR (PT.770) 687 at 694.
Pointing out that in the instant case both parties relied on documentary evidence in proof of the title to the disputed property lying and situate at No. L.G.3, Kaltungo Road, Tudun Wada, Kaduna. He stated that the title document tendered by the appellants was rejected on the sole ground that it was a photocopy. Learned counsel for the appellant further stated that on the other hand, the documents tendered by the respondents in support of their claim to title was admitted and marked as exhibit D2 but the trial court did not attached evidential value to it.
Relying on the authority of FASHAM VS. ADEKYA (1994) 6 S.C. 83, learned counsel for the appellant contended that if the learned trial Judge had used the document tendered as hanger in assessing their ipso dixit, he would have found that the evidence of the respondents were not credible and of no evidential value.
According to the learned counsel for the appellants, the evidence led by appellants weigh heavier than that of respondents and urged to resolve the issue in favour of the appellants and allow the appeal.
In his response in the respondents’ brief, learned counsel for the respondents, S.S. Gadau, Esq, in the respondents’ brief submitted that the trial Judge has appraised and properly evaluated the evidence both oral and documentary as held in SALAKO VS. D0SUNMU (1997) 8 NWLR (PT.776) 686 at 694. He stated that in the instant case the respondents as defendants relied on documentary and oral evidence in proof of their case. It is further stated that the appellants before the trial court did not present any document only the photocopy of purported sale agreement was admitted for the purposes of identification only which has evidential value. The documents tendered by the respondent in support of their case to title was admitted and marked as exhibit “D” was given little evidential value and it is not true that the court did not attach evidential value as contended by the learned counsel to the appellant.
It is submitted that the learned trial Judge has properly used the exhibits, the testimony of both appellants and the respondents and found for the respondents who were the defendants. Learned counsel for the respondents is of the view that the learned trial Judge rightly rejected the only purported photocopy of the sale agreement and urged to resolve the single issue in favour of the respondents and dismiss the appeal.
Pleading serves as the life-wire of a claim but without proof thereof it serves no useful purpose.
The primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases. In addition, it also serves the basis upon which the court will be called to adjudicate between them. This principle has been restated in the case of MR. ESAZEE OJO VS. MRS JACOB ESOHE & ORS (1999) 5 NWLR (PT.603) 351 at 444.
It follows therefore that the two most significant aspects of a claim are pleadings and the evidence on them in proof thereof.
It is trite law under the Evidence Act as in civil cases, the burden of proving a particular fact is upon the party who asserts it and who will fail if no evidence is called upon the issue, regard being to any presumption which may arise from the pleadings of the parties. This onus of proof is however not static it continually shifts from side to side in respect of a fact in issue untie finally rests on a party against whom judgment will be given if no further evidence is proffered before the court. See IGWE VS.AFRICAN CONTINENTAL BANK PLC (1999) 6 NWLR (PT.605) 1, FADLALLAH VS. AREWA TEXTILES LTD (1997) 8 NWLR (PT.518) 546, OKINDOLE VS. OYAGBOLA (1990) 4 NWLR (PT.147) 723 and H.M.S. LTD VS. F.B.N (1991) 1 NWLR (PT.167) 290 and FIRST AFRICAN TRUST BANK LTD VS. PARTNERSHIP INVESTMENT COMPANY LTD (2003) 18 NWLR (PT.881) 35 at 73.
It is a primary responsibility of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate which neither heard the witnesses nor saw them to observe there demeanors in the witness box. However, before a court before which evidence is adduced by the parties in a civil case comes to a decision as to which evidence it believes or accepts and evidence it rejects, it should first of all put the totality of the acceptable evidence adduced by both parties on either side of an imaginary scale and weigh them together to see which is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of the witnesses. See SHA (JNR) VS. KWAN (2000) 8 NWLR (PT.670) 685.
It follows therefore that where a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of the appellate court to substitute its on view for the views of the trial court; MOGAJI VS. ODOFIN (1978) 4 S.C. 91; ODOFIN VS. AYOOLA (1984) 11 S.C. 72; EZUKWU VS. UKAGWUKWU (2004) 7 NWLR (PT.902) 227.
Having studied the record of proceedings in this portion of which I purposely reproduced in this judgment, it may be seen that the learned trial Judge, in this case carefully evaluated both the oral and documentary evidence before reaching his decision. In my view the decision of the learned trial Judge in this appeal is fair and just to all the parties and I have no reason whatsoever to interfere with the judgment of the learned trial Judge.
In the result, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the Kaduna State High Court in suit No.KDH/KAD/293/98 delivered on the 11th day of April, 2002 by Hon. Justice B.U. Sukola of the Kaduna State High Court is hereby affirmed by me.
I make no order on costs.
Other Citations: (2009)LCN/3419(CA)
