Chief Adison Onya & Ors. V. Chief Godwin & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
This is an appeal against the judgment of the Abia State High Court Ukwa Judicial Division, holden at Obehia, delivered on 27/7/2005 in suit No. UUK/7/2004 pertaining to the present parties.
The circumstances surrounding the appeal are to the effect that on 13/02/2004 the four Respondents instituted a writ of summons along with a statement of claim in the court below claiming against the six Appellants the following reliefs:
A. A Declaration of this Honourable Court that the plaintiffs as a corporate entity have the legal right to effect a change of the name and identity of their community from its former name “Ezebudele village to the new name Ezendioma village.
B. A Declaration of this Honourable Court that the plaintiffs as a corporate entity have lawfully effected a change of the name and identity of their community from it’s former name Ezebudele village to the new name “Ezendioma village.
C. An Order of injunction restraining the Defendants by themselves their servants, agents and/or privies for forcing people to revert to the use of the former name of “Ezebudele village” or in any manner whatsoever interfering with the plaintiffs lawful use of the new name “Ezendioma village.”
D. An Order of this Honourable Court compelling the Defendants to replace the two sign posts belonging to the plaintiffs bearing the name Ezendioma village” which sign posts were willfully uprooted any defaced by the Defendants.
On the other hand, the Respondents had in the statement of defence thereof not only denied the Appellants’ claim but also counter claimed and thereby sought the following reliefs.
(a) A declaration that the name of the village of the parties has been and remains EZEBUDELE
(b) A declaration that the Plaintiffs can not foist a name viz EZENDIOMA on the Defendants or the people of Ezebudele.
(c) An injunction restraining the plaintiffs from further trying to change the name of Ezebudele to Ezendioma or at all by force.
Pleadings were filed and served. The case proceeded to trial, at the end of which judgment was delivered on the said 27/7/2005 by the learned trial judge to the effect, inter alia, thus:
I hold that the plaintiffs have discharged the burden of proof placed on them by section 135 of the Evidence Act, Cap. 112 Laws of the Federation, 1990… I am satisfied that the plaintiffs have proved on preponderance of evidence that the name of the village has been validly changed form Ezebudele to Ezendioma…..
…I am afraid the defendants merely defended this suit without much regard to their counter-claim. The defendants filed to thus prove their counter claim; same is herby dismissed. Hearing held that the plaintiffs have proved their case, I accordingly give judgment in favour of the plaintiffs as per plaintiffs statement of sub (d) “compelling the defendants to replace the two sign posts belonging to the plaintiffs the name Ezendioma village.” Is disallowed i.e. the location and place of the sign posts and dimensions, are not certain and therefore making such order difficult to enforce. Against moral run of events, but in order to encourage peace and unity in the village, make no order as to cost.
The Appellants were not satisfied with the judgment in question. They accordingly filed their notice of appeal, along with a total of 12 grounds of appeal, in the court below on 08/9/2005. With the leave of this court, an amended notice of appeal predicated on 14 grounds of appeal, was filed 04/5/2007.
It’s instructive that parties had filed and served their respective briefs of argument. Particularly, the Appellants’ brief, dated 18/5/2007, was filed on 21/5/2007. On the other hand, the Respondents’ brief was filed on 19/6/2007. The Appellants have formulated a total of six issues in the brief thereof for determination, to wit:
ISSUE NO. 1 Whether the plaintiffs/Respondents did not fail in discharge the onus on them to prove the alleged vision of pastor Chidiebere which vision formed the fulcrum or basis of the attempt to change the name of the parties’ village form Ezebudele to Ezendioma.
ISSUE NO. 2 Whether the onus on the Plaintiffs/Respondents to prove a charge of name of a village from Ezebudele to Ezendioma was discharged on a balance of probabilities or preponderance of evidence.
ISSUE NO. 3 Whether the defendants/Appellants did not prove their progenitor and ancestry to entitled the village to continue to answer Ezebudele instead of Ezendioma or any other name in the absence of a valid change of name.
ISSUE NO. 4. Whether the learned that trial judge placed the cases of the parties in imaginary scale as required by the authority of MOGAJI V. ODOFIN (1978) 4 S.C. 91.
ISSUE NO. 5. Whether the learned trial judge applied the right principle or principles in resolving the disputed signature of Uzoma Enyite (D.W.3) in exhibit “B”, in view of exhibit “L” made before the court.
ISSUE NO. 6. Whether the Defendants/Appellants did not prove their counter-claim to be entitled to judgment.
The Respondents, however, deemed it appropriate to raise only two issues in their brief as follows:
- Whether the Respondent proved their case on the preponderance of credible evidence. (Grounds 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, & 15).
- Whether the Appellants proved their counterclaim as required by law to be entitled to judgment, in their favour. (Ground 5).
Having considered the six issues formulated in the Appellants’ brief, I have noted, rather regrettably, that none of them has been predicated upon or distilled from any of the fifteen grounds of appeal. Thus, the Appellants’ failure to relate the said issues to the grounds of appeal has amounted to a complete misnomer. It is trite that issues formulated in a brief of argument must of necessity relate to, or arise from the grounds of appeal and ought to be connected with the controversy between the parties at the trial.
The whole essence or object of formulating issues in a brief of argument is to narrow or abridge the relevant points in issue. Thus, since issues ought to be distilled from grounds of appeal, they are supposed to condense or encompass all the grounds of appeal. In a sense, it’s the ground of appeal that should be contracted to form the issues for determination. Two or more grounds of appeal may be contracted to form an issue, and not vice versa; this is with a view to guarding against preposterous proliferation of issues. See LEEDS PRESIDENTIAL HOTEL LTD. VS. BON (NIG.) LTD. LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (Part 188) 664 at 682; (1991) 6 SCNJ 1 at 12; GAMBARI VS. MAHMUD (2008) 14 NWLR (Part 1107) 209 at 234 paragraphs F -G; EKHIKHAM-WEN VS. ILUOBE (2002) 2 NWLR (Part 750) 151; OKPALA VS. IBEME (1989) 2 NWLR (Part 102) 208; EGBE VS. ALHAJI (1990) 1 NWLR (Part 128) 546; KANO ILE PLC. V. G & H (NIG.) LTD (2002) 2 NWLR (Part 751) 420; OKORI VS. UDEH (2008) 10 NWLR (Part 1095) 213 at 254 paragraphs A – C.
Having accorded an ample consideration upon the two briefs of the learned counsel to the respective parties vis-a-vis the record of appeal as a whole, there is every reason to appreciate that the two issues formulated in the Respondents’ brief are quite apt and adequate to determine the instant appeal. Issue No. 1 of the Respondents was indicated to have been distilled from grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15 of the grounds of appeal, thus capable of addressing the vexed questions raised in issues 1 – 5 of the Appellants’ brief. Likewise, issue No. 2 of the Respondents’ brief was predicated on ground 5 of the grounds of appeal, thus aptly relevant to issue No. 6 raised in the Appellant’s brief. I have therefore deemed it expedient to adopt the two issues raised in the Respondents’ brief, mutatis mutandi, thus:
- Whether (the plaintiffs) Respondents had proved their case at the court below on the balance of probability or preponderance of credible evidence (Grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 12, 13, 14, & 15).
- Whether (the defendants) Appellants had proved their counterclaim at the court below as required by law to be entitled to judgment (Ground 5.)
ISSUE NO. 1
The submission of the Appellants’ learned counsel, E.O. Agada Esq under issue No. 1, thereof is to effect that the alleged vision of Pastor Chidebere formed the fulcrum or basis on which the Respondents’ case turned. That, issues were joined by the parties on the Pastor and “his bogus vision” in question. Reference was made to paragraph 10, lines 28 – 33 at page 5 of the Record to the following effect:
“28. The plaintiffs further state that during the deliverance crusade, the said Pastor Chidiebere saw a vision where in the Almighty God told him that the problems and set backs besetting the entire community was a result of the meaning of their Ezebudele village.”
Paragraphs 9 & 10 of the statement of defence, at page 19 of the Record, were also referred to regarding the Respondent’s disbelief in Pastor Chidiebere’s alleged God’s given vision.
Putting reliance on sections 135(1) & (2), 136(1) of the Evidence Act (CAP 112 Laws of the FEderatino 1990, and the case of ARUM VS. NWOBODO (2004) 9 NWLR (Part 878) 411 at 457 paragraphs A – C, the learned counsel contended that the evidence of the Respondents, especially that of PW1, to the effect that “Pastor Chidiebere claimed that he saw a vision” was unbelievable, unreliable and rather a hearsay. See section 77 of the Evidence Act, AJADI VS. AJIBOLA (2004) 16 NWLR (Part 898) 91 at 163 paragraphs F – G; 200 paragraphs F – H; JOLAYEMI VS. ALAOYE (2004) 12 NWLR (Part 887) 322; 341; AWUSE VS. ODILI (2005) 16 NWLR (Part 952) 416 at 496 paragraphs C – D.
The court was urged to resolve the appellant’s issue No. 1 in their favour.
The Appellants issue No. 2 raises the question of whether the Respondents had discharged the onus of proving that the name of the village was changed from Ezebudele to Ezendioma. This issue was discussed at page 10 (paragraphs 5.02.00) through page 16 (paragraph 5.02.22) of the Appellants’ brief. Various paragraphs of the statement of claim and the statement of defence, especially at pages 6, 7, & 37, and the cross examination of PW1 by the defence at pages 37 & 38 of the Record were referred to. It was contended that at pages 38 of the Record, the PW1 had made some vital admissions under cross examination, but which were glossed over by the learned trial judge. See Section 75 of the Evidence Act, NGIGE VS. OBI (2006) 14 NWLR (Part 999) 31 – 33, to the effect that the court ought to consider the entire pleadings and admissions both in the evidence on the pleadings and in the evidence.
It was argued that the Respondents did not prove the assertion in paragraphs 8 & 9 of the statement of claim thereof. That, the evidence of DW1 showed sustained progress in the village when the issue of change of name of the village had not arisen and absence of any negative events in the village. That, DW1 testified that he was the traditional head of the village called Onyeisiala by birth and that nobody can change the name of the village without his consent. That, this piece of evidence was not contradicted. See APROFINM ENG. LTD. VS. SIDOV. LTD. (2006) 13 NWLR (Part 996) 74, 83 paragraphs A – E.
It was argued that the Respondents had woefully failed to prove the change of name of the village from Ezebudele to Ezendioma on the balance of probabilities. Thus, the court was urged to resolve Appellants’ issue 2 in their favour.
The 3rd issue of the Appellants raises in question of whether the Respondents did not prove their progenitor and ancestry, to entitle the village to continue to bear the Ezebudele instead of Ezendioma, or any other name in the absence of a valid change of name. it was submitted that the question of the identity of the village was the gist of paragraph 11 of the statement of claim at page 6 of the record. While paragraph 12 of the statement of defence, at pages 19 & 20 of the Record, denies that assertion.
The evidence of PW1 and DW1 was also alluded, especially at pages 37 and 42 of the Record respectively, to the effect that Ezebudele having been the fourth son of Obuzor was a common ground borne out of the evidence of both parties. That, both parties agreed that the village has always been known as Ezebudele, the name of their progenitor and that the generality of the people have not seen any reason for any other name for that matter. The court was thus urged to resolve the Appellants’ third issue in their favour.
The Appellants’ fourth issue was argued conjunctively with issue No. 5.
It was submitted that the gravamen of this issue is the improper evaluation of the evidence before the court below. See MOGAJI VS. ODOFIN (1978) 4 SC 9; ILORI VS. TELLA (2006) 18 NWLR (Part 1011) 2676 at 228 paragraphs D – F, ANYAFULU VS. AGAZIE (2006) 5 NWLR (Part 973) 260 at 280 paragraphs B – E, to the effect, that a trial court in evaluating evidence must put all evidence with a probative value adduced on an imaginary to see which side the scale tilts.
The evidence of PW1, PW2, DW1, DW2 & DW3, exhibit B, to the effect that the Appellants have failed to discharge the onus of proving the disputed signature on exhibit b. In the circumstance, the court was urged to resolve both issues 4 & 5 of the Appellants in favour thereof.
On their part, the Respondents, with out much ado, submitted on issue No. 1 that they “duly proved their case on the preponderance of credible evidence.” They referred to their pleadings and evidence, to the effect that the former name of their village, Ezebudele “had been a source of embarrassment and problems to them as far as the 1986.” See the evidence of DW1, DW2 & DW3 at pages 44, 48 & 49 of the Records, as well as exhibits F & K, respectively.
It was contended that the evidence of DW1, DW2 & DW3 are radically contradictory on the crucial point of the name of the village having been changed from Ezebudele to Ezendioma. Thus, it was argued that where the evidence of two witnesses is contradictory and irreconcilable, court cannot adopt, pick and choose which of them to believe. See OREKPAN VS. AMADI (1993) 11 SCNJ 68; IMADEY VS. MILAD, GONGOLA STATE (1988) 1 NSCC 827.
On the issue of Pastor Chidiebere’s vision, it was submitted that the Respondents had neither in the statement of defence, nor in their oral testimony, attempted to assert or justify the truth of that vision, except to state that it was (so) made. We were urged to be persuaded by the decisions in SUBRAMA-NIAM VS. PUBLIC PROSECUTOR (1956) 1 WLR 965; OJIAKO VS. STATE (1991) 2 NWLR (Part 175) 578; MUSA UMARU KASA VS. THE STATE (1994) 6 SCNJ 1, 2; MISS FELICIA OJO VS. DR. GHARORO (2006) 16 NWLR (Part 987) 173.
It was further contended that assuming, though without conceding, that the piece of evidence regarding the alleged Pastor’s vision may in the circumstances be regarded as hearsay, the wrongful admission of oral or documentary evidence, is not itself a ground for reversal of a decision unless it has reasonably affected the judgment. See ABADOM VS. THE STATE (1997) 1 NWLR 9 Part 479) 1; UGBALA VS. OKORIE (1975) 12 SC 1; IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227; ALIMI VS. OBAWOLE (1998) 6 NWLR (Part 555) 591.
On Appellant’s issue No. 5, it was submitted that to resolve this issue, the DW3 ordered his signature before the trial court. The DW3’s five signature specimens on a sheet of paper were admitted as exhibit L. that, all the trial court needed to do was to compare exhibit L with exhibit B and arrive at findings. That, the trial judge was entitled, by virtue of section 108(1) of the Evidence Act, to examine a signature which is denied and in issue, as mere dissimilarity of two signatures is not a conclusive proof that they were not made by the same person. See EZECHUKWU VS. ONWUKA (2006) 2 NWLR (Part 963) 151; OMONIYI VS. SODEINDE (2003) 13 NWLR (Part 836) 53, 56.
The Respondents’ learned counsel argued that by the combined effect of sections 57 & 61 of the Evidence Act, both an expert and none-expert including the judge, can form an opinion on the handwriting or signature of a person. See ADENLE VS OLUNDE (2003) 18 NWLR (Part 799) 413; (2003) LL FWLR (Part 157) 1074; TEICH VS NOTHERN INTERN MARKET COY LTD. (1987) 4 NWLR (Part 65), 44; WILCOX VS THE QUEEN (1961) 2 SCNLR 296; DAGGASH VS. BUDAMA (2004) ALL FWLR (Part 212) 1666 at 1712.
It was further argued, that the mere denial of a signature (exhibit B) does not affect the admissibility of the document, but will only go to the weight to be attached thereto. See BRITISH AMERICA INSURAN COY LTD. VS. EKEOMA (1995) 2 NWLR (Part 380) 743; FIRST BANK OF NIG. PLC. VS. TSOKWA (2003) ALL FWLR (Part 153) 205.
That, assuming without conceding, that the DW3 did not sign exhibit B, it does not in any way detract from the Respondents’ case, which had already been fortified by exhibits C, D, F & K and the admissions of the defence witnesses. That, the mere fact that the learned trial judge did not make any observation on exhibits B and L, could not and did not occasion any miscarriage of justice against the Appellants, to warrant setting aside the decision of the trial court. It was thus finally submitted on this issue, that the Respondents had duly proved their case on the preponderance of credible evidence.
I have amply considered the submissions of the learned counsel in their respective briefs of argument, the various illuminative authorities referred to therein, as well as the entire record of proceedings of the trial court.
It is a fundamental and trite principle, that in civil cases, the person who asserts has the primary onus or burden of proving the assertions thereof. The burden of proof in civil cases is undoubtedly on the balance of probabilities or preponderance of credible evidence, in accordance with sections 135, 136 & 137 of the Evidence Act which are to the effect thus:
135(1) Whoever desires any court to give judgment as to any legal right or liability defendant on the existence of facts which law asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it said that the burden of proof lies on that person.
136 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being lead to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
- Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
See (sic)
It would be reiterated, at this stage in time, that the law strictly requires the complainant to succeed on the basis of the strength of his case, not on the supposed weakness of the defence. However, where the evidence defence supports the complainant’s case, he may rely on that piece of evidence to prove the case thereof. See AWUSE VS ODILI (2005) 16 NWLR (Part 952) 515; ONIFADE VS. OYEDEMI (1999) 5 NWLR (Part 601) 54; LARMIE VS. DPMS LTD. (2006) 18 NWLR (Part 958) 38; UKPO VS. IMOKE (2009) 1 NWLR (Part 1121) 90 at 143 paragraphs C – H; 144 paragraphs B; UMUOJIAKO VS. EZENAMOU (1990) 1 NWLR (Part 126) 253; 267 paragraphs B – C.
The 1st issue, as referred to above, raises the vexed question of whether the Respondents as plaintiffs had proved their case on the preponderance of credible evidence. I will, first and foremost, deal with the Appellants’ issue No. 1, which raises the question of whether, the respondents did not fail to discharge the onus of proving the alleged Pastor Chidiebere’s vision, which formed the fulcrum or basis of the attempt to change the village from Ezebudele to Ezendioma. By the pleadings thereof, parties are ad idem that their village, the subject matter of the dispute, had from time immemorial been known and called Ezebudele. That on 02/12/87 a 10 man-panel was appointed by the Ezebudele village council to look into the possibility of changing that name to a better name. That, the committee submitted its report recommending that the name be changed. See paragraph 4 of the statement of claim and paragraph 5 of the statement of Defence. Paragraphs 8, 9 & 10 of the statement of claim are no doubt germaine to the Appellants’ issue No. 1 above and they are hereby reproduced as follows:-
- The plaintiffs state that after many years, as a result of the negative events beclouding their village and the consequent un-progressiveness of their youths, they resolved to invite a man of God to pray for and on behalf of tier village.
- That pursuant to the foregoing a Christian religious deliverance crusade was held at their village, which was at the time being known as and called “Ezebudele village” between the 10 to 13th day of April, 2003 by one Pastor Chidiebere.
- The plaintiffs further state that during the deliverance crusade, the said Pastor Chidiebere saw a vision wherein the Almighty God told him that the problems and setbacks besetting the entire community was as a result of the negative meaning of the name of their “Ezebudele” village.
The above paragraphs were however denied by the Respondents in paragraphs 8, 9, 10 & 11 of the Statement of Defence thus:
- Paragraph 8 of the statement of claim is denied. No negative events or un-progressiveness of youths beyond the bounds of normalcy (as in other community has “beclouding” the village. There has always been progress in education as well as material and spiritual growth or progress in the village to warrant a change in name.
- The Defendants in answer to paragraphs 9 and 10 of the statement of claim state that the said “Pastor” Chidiebere is not a native of Ezebudele. He is stranger whose origin and calling (as a Pastor) is questionable to the generality of Ezebudele people. The Defendants contend that he lacks the capacity to change or even prompt a change (against the will of the generality of the people) of the village name.
- Further to the paragraph immediately hereinabove, the Defendants aver that the said Chidiebere does not command acceptability as a man of God in Ezebudele among the generality of the people of Ezebudele, including the Defendants who did not attend the said crusade and do not believe that God gave him the vision he claimed he saw.
- In addition to paragraphs 9 and 10 hereinabove it is hereby stated that the 3rd Plaintiff and his cheque brought the said Chidiebere form outside Ezebudele, kept him in 3rd plaintiffs’ house and gave him space in the 3rd plaintiffs’ backyard where he now uses a canopy for a “prayer” house.
By virtue of the above averments, contained in both statement of claim and statement of Defence, issues have been joined. There is no gainsaying the fact, that the Respondents have the onerous onus of proving that there was indeed a vision by the said Pastor Chidiebere in which the Almighty God allegedly made him to see the problems and set backs besetting the entire community. It should be reiterated, that by paragraph 10 of the statement of claim thereof, the Respondents did not (merely) allege that they were told by the said Pastor that he saw a vision but that-
“The said Pastor Chidiebere saw a vision, which the Almighty God told him that the problems and setbacks besetting the entire community was as result of the negative meaning of the name of their Ezebudele village.”
On this assertion, the Appellants’ learned counsel has, in the brief thereof at page 8, alluded to the provisions of sections 135(1) & (2), 136 and 137(1) of the Evidence Act, as well as the case of ARUM VS NWOBODO (supra) 411 at 457 Paragraphs A – C, to the effect that the Respondents had the onus to prove (i) the genuiness of Pastor Chidiebere as a man of God (a pastor) and his capability; and (ii) the alleged vision.
I think, there is every reason for me to agree with the above submission. As pointed out earlier, it’s a fundamental principle of the law of evidence, that he who asserts must prove his assertion by a credible evidence. See sections 135(1) & (2), 136 & 137 of the Evidence Act CAP E14 Laws of the Federation of Nigeria, 2004.
It may be apt to, at this point in time, reiterate that with the publication of the new volumes of the Laws of Nigeria, 2004, it would be a complete misnomer and rather regrettablg to say the least, for learned counsel to cite the Evidence Act as “CAP 112 Laws of the Federation, 1990.” For the avoidance of doubt, the current volumes of the laws of the Federation Nigeria, 2004 were prepared, in pursuance of “The Revised Edition (Laws of The Federation of Nigeria) Act, 2004”, by the (defunct) Law Revision Committee under the distinguished chairmanship of the Honourable Mr. Justice E.A. Ayoola, a retired Justice of the Supreme Court and currently the chairman, ICPC. The Evidence Act is undoubtedly now CHAPTER (CAP) E14, 2004 and is duly contained at pages E14 – 1 to E14 – 69 of volume of the Laws of the Federation of Nigeria, 2004. Whereas, pages E14 – 69 to E14 – 71 contain two subsidiary legislations to the Evidence Act, 2004 namely –
“1. Criminal proceedings (Authority to sign certain certificates) Notice, 1990
- Criminal Proceedings (Authority to sign certificates) Notice, 1994.”
I now revert to the question regarding the provity of Pastor Chidiebere’s alleged vision. As alluded to above, it was the contention of the Appellants’ learned counsel that visions are not capable of being proved by empirical or objective evidence. According to the learned counsel In the sense it featured in this case, the word vision is like a dream in which there is a supernatural communication of an idea or message or picture.
…Therefore, a vision in the sense being used in this case, that is, a vision from God Almighty is incapable of being proved under the Evidence. Therefore, it was outrageous for the alleged change of name to be based on it and judgment obtained by the Plaintiffs/Respondents in such a case.
I think, there is some element of truth in the above submission of the Appellants’ learned counsel. Rather ironically, the Respondents themselves have not seemed to be forthcoming in defending the alleged “God’s given vision” of Pastor Chidiebere in question. According to the Respondents’ learned counsel in the brief thereof-
We submit that the evidence of the Respondents was merely to the effect that Pastor Chidiebere informed them that God gave him a vision that the name of the village be changed in their own interest. No attempt whatsoever was made by the Respondents to prove the truth of that vision. No where in the Respondents reply to statement of Defence or in their oral statement was any attempt made by the Respondents to asserts or justify the truth of the vision except to state that it was made.
Likewise, under cross-examination, the PW1 was recorded to have said that:
“Pastor Chidiebere claimed he saw a vision, I do not know whether the Heaven opened and he saw a vision; I am not a prophet and have not seen a vision before. I know that some visions are from God and others, come from Satan.”
It is not in doubt, that the said Pastor Chidiebere was neither called to testify before the trial court, nor was any reason given for the failure to call him to do so. It is trite, that under the English common law, the evidence of a statement made to a witness by a person who was not called as a witness is called “hearsay”, if the object of the evidence is to establish the truth of what is contained in the statement. Generally speaking, such evidence is not admissible. See cross, Evidence 6th Edition at 38 thus:
“An assertion other than one made by a person while giving oral evidence in the proceedings is admissible as evidence of any fact asserted.”However, there have been a wide ranging exceptions to this rule that have been developed by the courts and statutes a like in the course of time. See the case of SUBRAMANIAM VS PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969 in which the Privy Council held, inter alia, thus:
Evidence of a statement made to a witness a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact it was made.
See also OJIAKO VS. STATE (1991) 2 NWLR (Pt 175) 578; KASA VS. THE STATE (1994) 6 SCNJ 1, 2; OJO VS DR GLARORO (2006) 10 NWLR (Part 987) 178; BLACK’S LAW DICTIONARY, 8TH EDITION at 739.
In the instant case, contrary to the contention of the Respondents learned counsel, it’s rather obvious that the statement of the Respondents in their statement of claim paragraphs 8, 9 &10 and the evidence of PW1 regarding Pastor Chidiebere’s vision had the sole object of establishing the truth of the content thereof. What is more, the fact that the Respondents had taken it upon themselves to translate Pastor Chidiebere’s vision into reality, by resorting to changing the name of their village from Ezebudele to Ezendioma, clearly indicated that they believed in the truth of that highly questionable, if not heretical, prophecy or vision. I have no doubt in my mind, that the veracity of Pastor Chidiebere’s vision could not in any way be verified in the absence of Pastor Chidiebere himself, whose Pastoral identity still remains to be of doubtful or questionable authenticity.
I agree entirely with the Appellants’ learned counsel, that the Respondents had the burden of proving, the genuiness of Chidiebere as a man of God (Pastor) his capability and vision. What is even more intriguing and worrisome is that none of the Respondents could satisfactorily disclose the actual church and denomination to which the alleged Pastor Chidiebere belonged. In the absence of any direct evidence from the alleged “man of God”, Pastor Chidiebere himself, the “vision” could have been inform of a mere dream. Thus, as postulated by the Appellant’s learned counsel, it would be outrageous for the alleged change of name of the village to be based thereupon.
It should be reiterated, that inspite of thousands of years of research endeavour, little progress has been made in the scientific understanding of dreams. However, Dr. Sigmund Freud, has in his book “The Interpretation of Dreams” (first published in 1900) propounded the theory that dreams are the contraband representations of the beast within man, smuggled into awareness during sleep. Thus, in Freudian interpretation, the analysis of dreams is the key to unlocking the secrets of the unconscious mind and that –
The incoherence of dreams was not to be dismissed as the random firing of unruly neurons, some kind of semantic epilepsy. Nor, however, was it a mysterious message concerning the future. Neither somatic aberration nor mystical visitation, it was according to Freud, nothing other than a disguised wish. See FREUD THE INTERPRETATION OF DREAMS BY WORDS WORTH CLASSICS OF WORLD LITERATURE, 1997 at VIII.
According to Freud-
We are told that the dream is not God sent, that it is not of divine but of demonic origin… The dream is defined as the psychic activity of the sleeper, in as much as he is as sleep…
…The ancients distinguished between the true and valuable dreams which were sent to the dreamer as warnings, or to foretell future events, and the rain, fraudulent and empty dreams, whose object was to misguide him or lead him to destruction.
The validity ascribed to the dream life by certain schools of philosophy for example, by school of schelling is a distinct reminiscence of the undisputed belief in the divinity of dreams which prevailed in antiquity and for some thinkers, the mantic or prophetic power of dreams is still a subject of debate.
Ibid, at pages 7 – 8.
It was Freud’s view that is every sense, a dream has its origin in the past, that by representing a wish as fulfilled, the dream certainly leads us into the future. But this future which the dreamer accepts as his present has been shaped in the likeness of the past by the indestructible wish.
Now, the word vision denotes a dream or similar experience, especially of a religious kind. It was said that Jesus Christ came to Paul in a vision. See the Holy Bible. CORINTHIANS: 1: 2 – 9, 10 & 12. It (vision) also means a thing experienced powerfully in the imagination, especially concerning the future, etc. When we talk of imagination, especially concerning the future, etc. When we talk of imagination, we mean one’s ability to create mental images or pictures.
Incidentally, at the time I was writing the judgment, my secretary came into the chambers to ask me whether I did press the bell a while ago. My instant answer to her was of course, in the negative. I then jokingly told her that she must have had a “vision” or an ‘imagination’ that I needed her attention!
By virtue of section 77 of the Evidence Act (supra), oral evidence must be unequivocally direct. See AJADI VS. AJIBOLA (2004) 16 NWLR (Part 898) 91 at 163 paragraphs F – G; 200 paragraphs F – H; JOLAYEMI VS. ALAOYE (2004) 12 NWLR (Part 887) 322, 341.
It is trite that the term proof denotes a process by which the existence of facts (in issue) is established to the satisfaction of that court or jury. The term evidence has been aptly described as any specie of proof, or probative matter legally presented at the trial of any issue by the parties and through the medium of witnesses records, documents exhibits, concrete objects, etc; for the purpose of inducing belief in the mind of the court or jury, as to their contention. See AWUSE VS. ODILI (2005) 16 NWLR (Part 952) 416 at 496 paragraphs C – D, per Salami, JCA.
In the light of the foregoing reasoning, there is no doubt that the Respondents had failed to prove that the alleged vision of Pastor Chidiebere which formed the basis of their attempt to change the name of Ezebudele village to Ezendioma. And I so hold.
Issue No. 2 of the Appellants raises the question of whether the onus (placed) on the Respondents to prove the change name of the village from Ezebudele to Ezendioma had been discharged on the balance of probabilities or preponderance of evidence. This issue was discussed at pages 10 – 16 of the Appellants’ brief. It was submitted that evidence does not suggest or lead to the conclusion that there was a change, de facto et de jure, to entitle the Respondents to the reliefs sought in the present matter. Reference was made to paragraphs 15 – 17 of the statement of claim at pages 6 – 7 of the Record as well as the evidence of PW1 under cross-examination at page 37 lines 19 – 21 of the Record.
It was submitted that there were some fatal contradiction between the Respondents’ pleading and evidence. Most particularly the evidence of PW1 was alluded to at page 37 lines 26 to 31 of the Record, wherein the PW1 admitted that-
It was on 28/4/02 that the traditional ruler knows about this case. He had not given a decision on the matter before this case came to court. He referred the matter to the village (sic) then the 1st Defendant/Appellant for resolution. He had not given a decision over this matter before we filed this action.
According to the Appellants’ counsel, the above confirms that there was no change of name before this matter came to court as in paragraph 8 of the Reply to statement of Defence and Defence to counterclaim at page 26 lines 20 – 24 of the record.
It was further contended that the evidence of the PW1 the Respondents’ star witness should not have a probarave value since he contradicts his evidence in chief page 38 of the Record was referred to regarding the vital admissions made by PW1, but which were glossed over by the learned trial judge. See section 75 of the Evidence Act, NGIGE VS. OBI (2006) 14 NWLR (Part 999) 1.
It was submitted further that the crucial question whether the Respondents proved those assertions, especially at paragraphs 8, 9, 10 of the statement of claim. Without much ado, the counsel answered in the negative. Reference was made to the evidence of PW1 under cross-examination, at page 36 of the Record, and the evidence of DW1, at page 4 lines 25 – 28, respectively. It was contended that the Respondents woefully failed to prove a change of name of a village from Ezebudele to Ezendioma on the balance of probabilities.
On the other hand, the Respondents learned counsel submitted on this issue that the Respondents had pleaded and led evidence that the former name of their village, Ezebudele had been a source of embarrassment and problems even as far as the year 1986. He referred to the evidence of DW1, DW2 & DW3 that testified for the Appellants. It was contended that the evidence of those three witnesses contradicted themselves on the crucial point of the name of the village having been changed from Ezebudele to Ezendioma. That, the trial court was therefore right in rejecting the evidence of the Appellants on this score. The court was urged to accordingly uphold the finding of the trial court. See OREKPAN VS. AMADI (1993) 11 SCNJ 68; KIMDEY VS. MILAD GONGOLA (1988) 1 NSCC 827.
I have considered the submissions of the learned counsel, the authorities cited and relied upon and the record of appeal s whole. It is not in doubt, in fact parties are ad idem, that the clamouring for the changing of the name of Ezebudele village to another “better name” has had a chequered historical background. The agitation for the change of the name of the village of the parties in question as dated as far back as 1986.
This fact was pleaded in paragraph 5 of the statement of claim, at pge 5 of the Record. The agitation resulted in the setting up of a 10 man panel headed by no other person than the 1st Appellants own father. The 1st Appellant testified as DW1. It is indeed on record that the DW1 had testified under cross-examination, to the effect inter alia, thus:
“Before the present change there had been attempt to change to other name.
That was about 1986 – 87. “See page 44 of the Record. The DW1 had equally admitted, under cross-examination, that his own father was the chairman of the 10 man panel in question:
“It is true that my father was the chairman of the committee.”
What’s more, even the DW2, the traditional ruler of the parties’ Autonomous Community had testified, under cross-examination, to the effect thus:-
“They told me that they had stated the race for a change of name since 1985. They told me their reasons was because people were laughing at them as some people called them vulture me.”
See page 48 of the Record.
The same DW2 had initially denied the change name of the village from Ezebudele to Ezendioma when he stated thus:-
“There has not been a change of that name. There is also no village in my community called Ezendioma. It is not true that the name Ezedubele has been to Ezendioma.”
Surprisingly however, the same DW2 later admitted DW2 later admitted under cross-examination that he had, as matter of fact, taken certain actions confirming the use of the new name Ezendioma thus:
I have done things where the name featured like the Eze Coronation… During the coronation I make certain persons chiefs I made the 2nd plaintiff a chief, I issues him with a certificate to that effect. I signed the certificate. The certificate Ezendioma village, Exhibit F.” See page 49 of the Record.
Not surprisingly thus, the learned trial judge could not conceal his disgust when he remarked upon the testimony of DW3 thus:
“I watched this witness in the witness box as he dodged questions and was clearly evasive.
…That is not a witness to believe at all.”
Ironically however, that aspect of the learned trial Judge’s findings has not been challenged on appeal at all. I uphold the submission of the Respondents’ learned counsel that the evidence of DW1, DW2 and DW3 as alluded to above, regarding the changing of the village’s name from Ezenbudele to Ezendioma was radically contradictory.
And it’s a trite principle that where, as in the instant case, the evidence of two or more witness is evidently contradictory and irreconcilable, the court cannot pick and choose which of them to believe. See OREKPAN VS. AMADI (1993) 11 SCNJ 68; KEMDEY VS. MILAD GONGOLA (1988) 1 NSCC 827, wherein the apex court emphatically asserted the position of the law on the issue in question thus:-
It is not the primary foundation of this or any appellate court to make findings of facts or to appraise evidence. Also where the finding of fact is based on the credibility of the witness this court will be reluctant to interfere. The duty to make primary findings of fact by the evaluation of the evidence before him by additional advantage of watching the demeanour at witnesses is essentially preserved for the trial court. However, where the issue relates to the proper interference to be drawn from the facts proved the Court of Appeal, including this court, is in a good a position as the court of trial, and will draw the proper inference naturally following from the facts so proved. The Court of Appeal did I reverse the findings of fact if in its opinion, it is not supported by the evidence. Thus court will however not reverse the findings at the court below merely because it would have found differently.
As it would appear from the Record, the DW2 has unequivocally admitted to the obvious fact that:
As at 1/9/2002 I accepted there was a village known as Ezendioma in Umuneato auto. Community. See page 49 of the Records.
Exhibits F & K were documents duly signed by the said DW2 reflecting the new name of Ezendioma village, which documents were tendered and admitted at the trial without any objection. The DW2, HRH Eze Isaac-Ezere, by his evidence, alluded to above, has reinforced the Respondents’ case against the Appellants. There is no doubt that Exhibits F & L have unequivocally confirmed that the name Ezendioma was, as a matter of fact already operational. In my considered view, the reason that necessitated the change of the name of the village from Ezebudele to Ezendioma is not material. That is, whether or not the alleged vision of Pastor Chidiebere was predicated on false prophecy or other wise is not at all material. What’s material is that the majority of the people of the village earnestly desired to change the name of their village from Ezebudele to Ezendioma and that they have achieved that aspiration. From the evidence at the trial vis-a-vis the record of the trial court, there is every reason to believe that the agitation and desire fro a popular wish (of the generality) of the people of the village. The Respondents were able to prove that a referendum in the form of a general meeting of the village was conducted at Umunkwocha village Hall on 28/4/2002 for the purpose of achieving that noble objective.
In the light of the above postulations, there is every reason to believe that there had indeed been a change of the name of the village from Ezebudele to Ezendioma as rightly found by the court below. Thus, the issue No. 1 formulated above ought to be, and it’s hereby, resolved in favour of the Respodnents.
ISSUE NO. 2
The second issue raises the vexed question of whether the Appellants proved their counter claim as required by law to be entitled to judgment in their favour. This issue was distilled from ground 5 of the grounds of appeal. It relates to issue No. 6 of the Appellants and the Respondents second issue, respectively. The argument of the Appellants on this issue is contained at pages 22 to 24 of their brief while the augment of the Respondents upon the issue is contained at pages 11 to 13 of the brief thereof.
In a nutshell, the argument of the Appellants on this issue is to the effect, inter alia, that-
“In circumstance, on minimal quantum of proof in the absence of proper joinder of issues with the counter-claim, it is submitted that the counter-claim ought to succeed and urge my lords to so hold.”
The above contention was hinged on the supposition that paragraph 2, 4 & 8 of the counter-claim contained at pages 23 of the Record were not denied by the Respondents or that the denial of the counter-claim:
“was too evasive and cannot pass the test of a proper pleading. In other words, issues were not properly or at all joined with the Defendants/Appellants on their counter-claim by the Plaintiffs/Respondents.”
On their part, the Respondents argued, inter alia, that-
“It is our contention that the Appellants apart form filing a counter-claim failed to adduce any evidence whatsoever n support at the said counter-claim.”
They cited and relied upon the cases of JERIC NIG. LTD. VS. UNION BANK OF NIG. PLC. (2000) 15 NWLR (Part 691) 44; KW AJAFFA VS. BON (1999) 1 NWLR (Part 587) 423; PRIME MERUANT BANK LTD. VS. MA-MOUNTAIN CO. (2000) 6 NWLR (Part 661) 524; MOMODU VS. NULGE (1994) 8 NWLR (Part 362) 336; et al, to the effect, inter alia, that a counter-claim is a separate independent and district action, thus must be proved against the person counter-claimed. It was accordingly submitted, that what the Appellants did in the instant case could not qualify as a proof of the counter-claim. The court has been urged to accordingly dismiss the said counter-claim.
In the instant case, the relevant findings of the lower court regarding the present issue, could be found at pages 78 and 79 of the Record, wherein it was held, inter alia, thus:
…I am afraid the defendants merely defended this suit without much regard to their counter-claim. The same is hereby dismissed.”
I think, I cannot but uphold the above apt findings of the court below. It is rather obvious, that the Appellant overstretched their efforts, albeit unsuccessfully, in defending the suit and thereby paid little, if any attention, to the counter-claim in question. However, it is my considered view that by the nature thereof, the counter-claim could not have succeeded in view of the fact that judgment was given in favour of the Respondents. As alluded above, the reliefs sought in the counter-claim were for:
(a) A declaration that the name of the village of the parties has been and remains Ezebudele.
(b) A declaration that the Plaintiffs cannot foist a name viz “Ezendioma” on the Defendants or the people of Ezebudele.
(c) An injunction restraining the Plaintiffs from further trying to change the name of Ezebudele to Ezendioma or at all by force.
It is trite that a counter-claim is, for all intent and purposes, a separate, independent, and distinct action, thus the defendant cannot merely rely on his pleading on the counter-claim alone or the evidence adduced in the main suit. The onus lies upon him to prove his counter-claim on the preponderance of credible evidence. He has a duty to satisfy the trial court that he was indeed entitled to the reliefs sought in the counter-claim, even where no defence has been filed thereto.
This is absolutely so because it’s a well settled principle that he who asserts, must prove his assertion by credible and unequivocal evidence otherwise his claim fails. Thus, he must rely on the strength of his case, and not on the weakness of the defence. See GARBA VS. KUR (2003) NWLR (Part 831) 280; USMAN VS. GARKE (1991) 1 NWLR (Part 587) 466; JERIC NIG. LTD. VS.UNION BANK OF NIG. PLC. (supra) 15; KWAJAFFA VS. BON (supra) 423, et al.
In view of the above postulations, there is no doubt that issue No. 2 ought to be answered in the negative, and it’s hereby resolved in favour of the Respondents. It is evident from the records that the attitudinal disposition of the DW2, with particular regard to this case, was far from being commendable. Not surprisingly, the learned trial judge aptly remarked thus:
The traditional ruler, HRH Eze Isaac C. Ezere as DW2 by his evidence sort of strengthened the case for the Plaintiffs.
Although he told the court that the village was divided as to whether or not to change the name to Ezendioma; yet in the course of his official duties he has, at least in Exhibits E and L confirmed that the name “Ezendioma” was already operational.
I think it was Niccolo Machiavelli who was reputed to have aptly advised that a ruler (Prince) must at all cost avoid every thing that would tend to make him odious and contemned. According to him-
A prince (ruler) becomes despised when he incurs by his acts the reputation of being variable in constant, effeminate, pusillanimous, and irresolute; he should therefore guard against this as against a dangerous rock; and should strive to display in all his actions grandeur, courage, gravity, and determination. And in judging the private causes of his subjects, his decisions should be irrevocable. See The Prince, by Niccolo Machiavelli; Words Worth Edition, 1997 chapter 19 at 70.
Having resolved both issues raised thereabove in favour of the Respondents, it goes without saying that this appeal is completely devoid of any merit. Consequently, the appeal is hereby dismissed by me.
The judgment of the court below, delivered on 27/7/2005 in favour of the Respondents against the Appellants, is hereby affirmed.
Parties shall bear their respective costs of litigation.
Other Citations: (2009)LCN/3132(CA)
