Comfort Obiazikwor & Ors. V. Jude Chike Obiaziakwor & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
U.M. ABBA AJI, J.C.A.
This appeal is against the judgment of the High Court of Justice, Delta State sitting at Agbo, in Suit No. AG/28/91, delivered on the 3rd July, 1992.
The Plaintiffs at the lower court herein after referred to as the Appellants sued the Defendants now Respondents and claimed as per paragraph 20 of the amended joint statement of claim, the following reliefs.
(i) A DECLARATION that in accordance with the Customary Laws of Owanta Community, The story building situate at No. 22, Obiazikwor Street, Boji Boji Owa is jointly owned by the 2nd -9th Plaintiffs and the 1st Defendant as children of the Late Chief Obiazikwor Nwozor.
(ii) A DECLARATION that the purported sale of the property situate at No. 22 Obiazikwor Street, Boji Boji, Owa by the 1st Defendant to the 2nd Defendant without the prior consent of the plaintiff’s as mentioned above is void and of no effect whatsoever.
(iii) A DECLARATION that the 1st Defendant has no right or privilege to sell, transfer, alienate, assign or in any other way deal with the above property without the prior consent of the 2nd – 9th Plaintiffs and in consultation with the 1st Plaintiff.
(iv) PERPETUAL Injunction restraining the 1st-2nd Defendants jointly and severally from dealing with and or carrying on any further transactions in respect of the said building described above without the consent of the Plaintiffs.”
Pleadings were duly filed and exchanged and the case proceeded to trial. The 1st, 3rd and 5th Appellants testified and called two other witnesses. The Respondents called three witnesses including the 2nd Respondent. At the end of oral evidence and address by learned counsel, the learned trial Judge in a considered judgment dismissed the Appellant’s case. In dismissing the Appellant’s suit, the learned trial Judge held as follows:-
“In sum, having regard to the evidence which – I accept; I hold that:
(a) The house in dispute was one of the houses of the deceased which was shared in December, 1990 as I find it difficult to believe that the house of the deceased was sold when he (deceased) was alive and when he had not transferred the property to 1st Defendant.
(b) It is also my firm view that No. 22 Obiazikwor Street, Boji Boji, Owa was given to the 1st Defendant exclusively. The house in dispute is no family house or property and the authority of Alao v. Ajani (1989) 4 NWLR (Pt. 113) page 1 AND Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) Page 208 cited by Mr. Ojo do not apply.
I am of the view that the Plaintiffs are not joint owners of the house in dispute, nor was the said house shared to anyone of them.
(c) Having so found that the house was shared to the 1st Defendant exclusively it follows that he is entitled to deal with the said property as he likes. He can sell, alienate or mortgage the said property.
(d) The question or issue of property acquiring the house by the 2nd Defendant from the 1st Defendant, prior to the sharing of the asset, or at any other time thereafter, is largely irrelevant, as I have found that the property was shared exclusively to the 1st Defendant during the sharing exercise.
I am quick to add that I believe that the 2nd Defendant had paid N95,000.00 to the 1st Defendant in respect of the house in dispute, as I believe the evidence of DW1 in this regard, as well as Exhibits ‘F’, ‘D’ and ‘D1’ as to payment of money by 2nd Defendant to 1st Defendant. The Defendants pleaded Exhibits ‘D’ and ‘D1′ dated 6/5/91 and tendered same through DW1. As a result of what I have stated above, I regrettably hold that the Plaintiffs have not established any of the reliefs sought. There is no evidence that Agbor Customary Law is the same as Owanta Law and Custom; and the authority cited by Mr. Ojo as to the sharing of intestate property gate by gate according to Agbor Custom is inapposite and it is not followed by me.
The action is without merit and is dismissed.
The Plaintiffs are to pay N2,000.00 cost to the 2nd Defendant.”
The Appellants were dissatisfied with the said judgment and now appealed to this court upon three (3) Grounds of Appeal vide a Notice of Appeal dated 21st day of august, 1992. By order of court made on the 27th April, 1995, the Appellants amended the Notice of Appeal by adding two (2) additional grounds of appeal. The original and additional grounds of appeal without their particulars are hereby reproduced.
GROUNDS OF APPEAL
(1) The Judgment is against the weight of evidence.
(2) The Learned Trial Judge erred in Law in dismissing the Plaintiff’s case when the Plaintiffs proved their case on the balance of probabilities as required by Law.
(3) The Learned Trial Judge erred in Law in dismissing the Plaintiffs’ case when the evidence led by the Defence was contrary to their pleadings.
(4) The Learned trial Judge misdirected himself in law when he failed to properly evaluate the evidence adduced by the parties and thereby arrived at a wrong conclusion.
(5) The learned trial Judge erred in law when he held thus: “I regrettably hold that the Plaintiffs have not established any of the reliefs sought” when there was abundant evidence on record that the defendant bought family property without the consent or authority of the Plaintiffs.”
In accordance with the rules of this court, parties filed and exchanged briefs of argument. In the Appellant’s Brief settled by A. Ojo Esq, five issues were formulated for determination of the appeal. The issues are:-
“1. What is the custom of Owanta on the partitioning/sharing of the Estate of a polygamist who dies intestate?
- Was the building situate at No. 22 Obiazikwor Street, Boji Boji owa shared to the Appellants gate or exclusively to the 1st Respondent in accordance with the native laws and customs of Owanta?
- What is the effect of the material contradiction in the evidence of the 2nd Defendant and his witnesses on material issues?
- Was the learned Trial Judge right in basing his judgment on the evidence of DW1 and Exh. C when none of the Plaintiffs and their witnesses or DW2 was confronted with the Document?
- What is required of a trial Judge when the evidence tendered before him is at variance with the pleadings?”
In the 1st Respondent’s brief settled by S.O.A Gbenogba Esq, two issues were formulated for the determination of the appeal, namely:-
(i) What is the legal consequences of where a party filed pleading and led no evidence in prof of same and also where a party fails to cross-examine and (sic) adversary on a material issue in controversy.
(2) Where evidence led is at variance with the pleading or where there are material contradictions, what is the legal consequences”
The 2nd Respondents brief was settled by Chief (Sir) E.E.C. Nwanua Esq, four (4) issues were identified for determination of the appeal. The Issues are:-
- “Whether the house at No. 22 Obiazikwor Street, Boji Boji Owa, the property of late Chief Obiazikwor was shared according to the custom of Owanta People and so belong singly to the 1st Defendant/Respondent or collectively with the 2nd to the 9th Appellants.
- Whether from the entire evidence adduced the Learned Trial Judge was right when he held that the Appellants did not prove their claim and that the building was shared to the 1st Defendant exclusively.
- Whether the Learned Trial Judge properly evaluated the evidence adduced before him and in the face of material contradictions in the Plaintiffs’ evidence was right upon his findings when he dismissed the Appellants’ claims?
- Whether the evidence adduced by the Defendant was at variance with their pleadings.”
When the appeal came before us for hearing on the 27/9/06, both learned counsels for the Appellant and the 1st Respondent were not in court despite service of the hearing notice on them. Counsel for the 2nd Respondent Rev. Nwanua Esq adopted and relied on his amended brief of argument deemed filed on the 2nd June, 2004 and urged us to allow the appeal. He also urged us to deem the Appellant’s brief of argument deemed filed on the 13th October,1998 and the 1st Respondent’s brief deemed filed on 6/2/03 as argued pursuant to Order 6 Rule 9 (5) of the Rules of this court. Learned counsel urged us to dismiss the appeal.
I have carefully considered the issues as formulated by the respective counsel and I am of the view that issues 1 and 2 in the Appellants’ brief are related with issues 1 and 2 in the 2nd Respondents’ brief and issue 1 in the 1st Respondent’s brief and same will be taken together. Issues 3 and 4 in the Appellant’s brief are the same as issue 3 in the 2nd Respondent’s brief and issue 2 in the 1st Respondent’s brief. They will also be considered together. Issue 5 in the Appellant’s brief is the same with issue 4 in the 2nd Respondent’s brief, they shall be considered as such.
Before I delve into the issues in this appeal, it is pertinent to consider the facts and circumstances giving rise to the present appeal. This is, as can be gleaned from the pleadings of the parties and evidence adduced at the trial.
The 1st Appellant was one of the wives of Late Chief Obiazikwor Nwozor who hailed from Owanta Village in the defunct Ika Local Government Area of Delta State. The 2nd – 9th Appellants and the 1st Respondent were the children 1st Appellant had for the late Chief. The Chief at his death was survived by 7 wives and 22 children. The 1st Appellant was the 2nd wife while the 1st Respondent was her first son and the 2nd son of the late Chief Obiazikwor Nwozor who died intestate on or about the 8th of June, 1985. The Chief had several buildings, farmlands and personal effects which were shared by members of his family including PW1 and DW1 in accordance with the Native Laws and Customs of Owanta. The building in dispute in this suit is situate at No. 22 Obiazikwor Street Boji Boji Owa. The 1st Respondent purportedly sold the building to the 2nd Respondent in 1977 and thereafter in 1991 when both of them entered into a supplementary agreement. The Appellants instituted this action against them when the 2nd Respondent started laying claim to the building.
While the Appellants contended that the building was shared to all the children of the 1st Appellant as the sharing was done according to the number of gates in accordance with the Native Law and Custom of Owanta, the 2nd Respondent contended that he bought the property from 1st Respondent in 1977 after confirming from his late father that it was a gift to him intervivos and asked him (the 1st Respondent) to remain in the house till 1991 when both of them entered into a supplementary agreement for the repairs effected by the 1st Respondent in the building. He further contended that he bought the property of the 1st Respondent and not the entire family’s building.
Learned counsel for the Appellant argued issues one and two together and I will consider them as such. Arguing these issues, learned counsel for the Appellants submitted that PW1 and PW2 gave evidence as to the sharing of the landed property of late Chief Obiazikwor Nwozo that the sharing was done according to number of gates while some of the children males and females were compensated after each of the gates got their share. This fact was confirmed by DW2 who testified that the building was given to the 1st Respondent with his sisters and brothers. It is his view that the learned trial Judge’s mind may have been affected by the fact that DW1 was a member of Ika Area Customary Court, Agbor-Obi, when he was not called as an independent witness or as expert on customary matters. That DW1 was instrumental to the preparation of Exhibit D and that no explanation was given.
It is also the view of learned counsel that while the 2nd respondent’s root of title was a gift intervivos from late Chief Obiazikwor to the 1st Respondent in 1977, DW1 denied knowledge of such gift and stated that the building could not have been sold in 1977. It is also the view of learned counsel that failure of the 1st Respondent to testify at the lower court was fatal to the case and that the learned trial Judge is not entitled to substitute his views for the custom of Owanta. He submitted that the evidence adduced by the Respondents contradicts their averment in the pleadings and therefore goes to no issue. He referred particularly to the evidence of DW1 and on the issue of proof, learned counsel referred to Section 135 of the Evidence Act. We were urged to resolve this issue in favour of the Appellants.
On issue three, learned counsel for the Appellants submitted that parties are bound by their pleadings. He submitted that the Respondents pleaded the 1st Respondent’s root of title and the transactions between him and the 2nd Respondent in 1977 and that the evidence of DW1, the star witness was completely at variance with the pleadings. He referred to Exhibit D evidencing acts of ownership exercised by the 2nd Respondent by instructing 1st Respondent to carry out some improvements in the premises during the life time of their late father Chief Obiazikwor and Exhibit F transferring title of the property in dispute to the 2nd Respondent which he submitted are contrary to the evidence of DW1. It is his view that the learned trial Judge ought to have found in favour of the Appellants and urged us to do the same and resolve the issue in favour of the Appellant.
Issues four and five will be taken together. Learned counsel submitted that the learned trial Judge misdirected himself by relying solely and wholly on the evidence of DW1 and Exhibit C tendered by the witness. He submitted that throughout the evidence of the Appellants and their witnesses, particularly PW2 denied the existence of the said document Exhibit C and that the Respondents did not cross examine the Appellants on the existence of the document. That DW2 did not say anything on Exhibit C and the learned trial Judge ought not to have laid his weight on the Exhibit. It is also the view of learned counsel that in view of the conflicting evidence of DW1 and the 2nd Respondent on the purpose of Exhibit D, the court below ought to have resolved the conflict in favour of the Appellants. Learned counsel urged us to interfere in view of the perverse findings of the lower court and to resolve the issue in favour of the Appellant.
Arguing issue one in the 1st Respondent’s brief, learned counsel for the Respondent submitted that 1st Respondent led no evidence throughout the trial at the lower court to support his pleading and submitted that it is settled law that mere averment without proof of facts pleaded is no proof if facts are not admitted. He submitted that an averment in pleadings on which no evidence is adduced is deemed to be abandoned since pleadings cannot constitute evidence. It is also his submission that a defendant who does not give evidence in support of his pleadings or in challenge is deemed to have accepted the facts adduced by the Plaintiff. It is his view that the 1st Respondent having failed to lead evidence on his pleadings as to how he became the owner of No. 22 Obiazikwor Street Owa especially in the face of Exhibits F, D and D1 is deemed to have abandoned these facts/averments. It is his view that in the absence of any evidence as to when the property was transferred to the 2nd Respondent that is, whether it was in 1977 or 1990 when it was allegedly shared to him goes to the root of the matter. He urged the court to allow the appeal.
On issue two learned counsel submitted that DW1 testified that No. 22 Obiazikwor Street was shared to the 1st Respondent and he went on to say that No. 22 Obiazikwor Street was not sold before the deceased died on the 8/6/85 was at variance with Exhibit F. It is also his view that the evidence of DW2 that No. 22 Obiazikwor Street was given to the 1st Respondent to shelter his family members was at variance with the statement of defence that the property was a gift intervivos to the 1st Respondent in 1976. He submitted that in view of the contradiction in the pleadings and the evidence adduced, this issue should be resolve in favour of the Appellants.
Arguing issues one and two together, the learned counsel for the 2nd Respondent submitted from the evidence adduced by both the Appellants and Respondents showed that No. 22 Obiazikwor Street was the property of late Obiazikwor Nwozo and that some family members were appointed to share the properties according to Native Law and Custom of Owanta people.
Learned counsel submitted that all parties agreed that the properties were shared. He posed the question, to whom was No. 22 Obiazikwor Street, the property in dispute shared? Learned counsel referred to the evidence of DW1 that the sharing was documented in Exhibit C which was signed by all the parties who did the sharing i.e PW1, DW1 and one Emu now late, and that in it, it was shown that the property in dispute was shared to the 1st Respondent. It is his view that the Appellants did not plead the non existence of such document nor was evidence led by them to controvert it, nor did they ask for further and better particulars of the Exhibit as pleaded by the defence. Learned counsel referred to Order 25 Rule 7(1) and (2) of the High Court of Bendel State Civil Procedure Rules 1988. It is also the view of the learned counsel that the Appellants did not at any time during the trial lead the PW1 in evidence to deny ever making or signing it and that they are therefore deemed to have admitted that he made and signed same. He submitted, PW1 cannot run away from Exhibit C. It is his view as per the evidence of DW1 that the properties of late Chief Obiazikwor Nwozo was shared among his children according to seniority in accordance with the Native Law and Custom of Owanta and that house No. 22 Obiazikwor Street was shared to 1st Respondent. Learned counsel submitted that, the fact that the 1st Respondent did not testify in the proceedings is of no moment as all the Respondents are not bound to testify and nothing stops the Appellants from calling the 1st Respondent as a witness. He submitted that PW2 lied when he stated that the sharing was by gate not individually in the face of Exhibit C and the evidence ofPW1, DW1 and even DW2. Learned counsel further submitted that PW1 cannot resile from Exhibit C which he personally signed more so when he was not confronted or challenged by the Appellant’s counsel as to whether he (the PW1) signed such a document notwithstanding that it was copiously pleaded by the Respondents because if PW1 was asked about Exhibit C, the answer would have been unfavourable to the Appellants citing Section 149 (d) of the Evidence Act. He also submitted that evidence given by PW1 which tends to contradict Exhibit C is irrelevant unless it is to show fraud citing Section 132 (1) of the Evidence Act. Learned counsel further submitted that Exhibit C strengthens the ownership and sharing of No. 22 Obiazikwor Street Owa to the 1st Respondent and the 1st Respondent was right in dealing with the property without reference to the Appellants. We are urged to resolve issues 1 and 2 against the Appellants and to dismiss the appeal on these issues.
Arguing issues 3 and 4, learned counsel for the Appellants submitted that the learned trial Judge properly evaluated the evidence adduced in the suit and dismiss the claims of the Appellants as they have failed to prove them. It is his view that there was no variance in the evidence of the Respondent’s witness with their pleading. It is his view that the Appellants are bound in law to establish their case based on their own proof of their case and on the strength of the evidence adduced before the court citing Kodilinye vs. Odu (1935) 2 WACA 336. He submitted that the learned trial Judge reviewed the entire evidence and found as a fact that Exhibit C was prepared and signed by all the parties that shared the properties. It is his view that there was no variance or contradiction in the evidence of defence witnesses. That the trial Judge made some findings of facts in respect of the evidence of PW1 and DW1 and preferred the evidence of DW1 to that of PW1 and the Appellate court cannot disturb such finding, citing in support the following cases:- Ebba vs. Ogodo & an or (1987) 1 SCNLR 372 ; Okafor vs. Idigo (1984) 1 SCNLR 481 at 482; B.C.C.I vs. D. Stephen Ind. Ltd. (1992) 3 NWLR (Pt. 232) 772 at 778. He urged the court to dismiss the appeal.
Let me observe at this juncture that, the 1st & 2nd Respondents filed a joint statement of defence at the lower court and were represented by a common counsel. It was on record that the 1st Respondent disappeared during the trial and never appeared before the lower court to give evidence. With the appeal pending in this court, he filed through his counsel a separate 1st Respondent’s brief of argument and urged us to allow the appeal. Let me say that from the facts and circumstances of this case, the conduct of the 1st Respondent leaves much to be desired. I say no more.
The fundamental issue for determination in this appeal appears to be whether the buildings of late Chief Obiazikwor Nwozo was shared according to Native Laws and Customs of Owanta people gate by gate or separately to individual males and whether No. 22 Obiazikwor Street was shared exclusively to the 1st Respondent or jointly with his brothers and sisters.
The argument put forth by the Appellants at the trial court was that by the Native Laws and Customs of Owanta, an Owanta man who died intestate and has many wives, the properties are shared according to the number of gates, that is, the wife of the deceased with her children males and females constitute a gate, according to the contribution of the burial expenses of the deceased person.
It is a principle of our law that he who asserts must prove. In civil cases, the onus of proof is always on the party who asserts and he has to prove his case on credible and cogent evidence. Where a party failed to discharge the burden, he cannot therefore be entitled to judgment. See Eholor vs. Osayande (1992) 6 NWLR (Pt. 249) 524; Progress Bank of (Nig) Ltd vs. Ugonna (Nig) Ltd (1996) 3 NWLR (Pt. 435) 202; Umeania vs. Emodi (1996) 2 NWLR (Pt.430) 348.
The standard of proof required is proof on balance of probability and not proof beyond reasonable doubt as in a criminal cases, see Onobruchere vs. Eseqine (1986) 1 NWLR (Pt. 19) 799; Ojomo vs. Ejeh (1987) 4 NWLR (Pt. 64) 216; Bakare vs. A.C.B. (1986) 3 NWLR (Pt. 26) 47.
In establishing their case, the Appellants called PW1 and PW2 and 1st, 3rd and 5th Appellants testified in support of their claim. PW1 Dunkwo testified that three of them shared the properties of the deceased amongst his children, himself, Richard Egwu and Ezeluka Emu. He testified at page 29 of the record lines 1-5 as follows:-
“I know the custom of Owanta people. The custom of Owanta people in sharing the property of an Owanta person who died intestate and has many wives. We share the property according to seniority… If the deceased has houses an elder son will be asked to join with his younger brothers to own the building. Women who are not yet married are included with the younger brothers in owning the property… It is our custom that the wife of a deceased person does not benefit from the sharing of the deceased husbands property.
We allotted to young Obiazikwor (1st son of the deceased) and his younger male and female the house where the deceased lived during his life time… We allotted to the 2nd son called Chike Obiazikwor i.e 1st Defendant and his younger brothers and sisters another upstairs opposite the family house…” (Underlining mine)
PW2 young Obiazikwor testified at pages 50 lines 32-39 of the record of appeal as follows:-
“…The property was shared according to Owanta Native Law and Custom. The property was shared According to how burial expenses were Collected. 1 had property Nos. 24 24A, 24B Obiazikwor for my mother’s gate with a sick lady.
The 2nd wife and her children including 1st Defendant had No. 22 Obiazikwor street, Boji Boji Owa…
At page 51 lines 23-25 the witness testified as follows:-
“The sharing of my fathers properties was not documented. It was done orally.
Under cross examination the witness stated further that,
“Customarily in Owa clan, the senior sons inherit larger share than the younger sons of the deceased…
No. 22 Obiazikwor Street was given to the 1st Defendant and his brothers and sisters of his gate. The sharing was by gates. The sharing was by gates and not by individuals…”
The 1st Plaintiff, Mrs Comfort Obiazikwor, the 2nd wife of the deceased, the mother of the 2nd – 9th Appellants and the 1st Respondent testified at page 55 from lines 28 of the record as follows:-
“I know Chief Michael Obiazikwor Nwozor. He was my husband… He had 7 wives and 1 was in the 2nd position.
…Later the property was shared but 1 was absent during the sharing. My children were however there and they brought a document relating to their share of deceased’s children building that was shared to them…”
The documents, the conveyance and the building plan for No. 22 Obiazikwor Street were admitted in evidence as Exhibits Band B1 respectively. The witness stated under cross examination at page 57 of the record lines 13-15 as follows:-
“I deny that No. 22 Obiazikwor Street was given to the 1st Defendant during the sharing.”
The 5th Plaintiff Paul Okehike Obiazikwor, the son of the 1st Plaintiff and a brother to the 1st Respondent testified at page 58 of the record of appeal from lines 15 as follows:-
“My mother i.e the 1st Plaintiff and 1 were put in No. 22 Obiazikwor Street, Owa, pending the sharing of the deceased’s property… The deceased property was eventually shared in 1991. I was present during the sharing of my father’s property. The properties were shared by gates. My own gate got No. 22 Obiazikwor Street. I was compensated with 6 rooms in S9 Convent Street, Owa absolutely and exclusively.”
(Underlining mine)
The witness stated further under cross-examination from page 60 lines 6-7 of the record of appeal as follows:-
“Every male issue of my father was given part of my fathers property.”
He stated at lines 37-38 as follows:-
“My father’s property was not shared individually, but by gate.”
PW 3 Stella Obiazikwor, a daughter of the 1st Plaintiff testified at page 62 lines 5-7 as follows:-
“I was present during the sharing. The buildings were shared according to gates.
My gate received No. 22 Obaizikwor Street… It is not true that the 1st Defendant was given the house in dispute as his share of the property.”
The contention of the Respondent was that the properties of late Chief Obiazikwor Nwoazor was shared to the deceased children according to Native Laws and Custom of Owanta and that the buildings were exclusively shared to the male children except of course in some exceptional situation where some females got some properties to satisfy the wish of the deceased. They fielded Richard Efere Egwu as DW1. He was one of those that shared the properties of the deceased to the deceased children. He testified at page 63 from lines 13 of the record of appeal as follows:-
“Nwozor had 7 wives. After the 2nd burial the family gathered and the deceased’s properties were shared among the children. Four persons did the sharing. Two persons from the paternal side and two persons from the maternal side of the deceased. I took part in the exercise… I was asked to write down how the property was shared. The 1st to be shared was the land properties, i.e the houses. I hereby produce a copy of the document where the properties were shared.”
The document was admitted as Exhibit C. The DW1 stated further as follows:-
“Customarily, senior sons get more share than the young ones. How we shared the houses are indicated in Exhibit C. The deceased had many buildings. The 1st son PW2 was given No. 24 Obiazikwor Street. The house at No. 22 Obiazikwor was given to the 1st Defendant…
The above buildings are shared to individuals and not collectively or in gates. At no time did we give No. 22 Obiazikwor street to the 1st Plaintiff and her children as a gate. Rather it was given to the 1st Defendant, Jude Chike Obiazikwor. All the children of the deceased were happy with the sharing. They thanked us… The male issues share the landed properties whilst the females join the males in sharing the personal effects. The above is the suctom of Owa people. None of the wives of the deceased person received any of the deceased’s property. This is our custom.”
(Underlining mine)
The witness continued at page 65 from lines 34 of the record as follows:-
“Exhibit C was not signed by any of the Obiazikwor children. This was not necessary. Only the people who did the sharing signed it. No. 22 Obiazikwor Street was not shared to the 1st Defendant and his brothers and sisters. The other full blooded brothers of the 1st Defendant had their individual personal shares.” (Underlining mine)
Lucky Chinyere Obiazikwor testified as DW2. He was one of the sons of late Chief Nwozor. He is of the same father with the 2nd – 9th Appellants and the 1st Respondent. He gave his evidence that house No. 41 Ojokpolor Street was owned by his father and that the house was shared exclusively to him by DW1 and so also was house No. 22 Obiazikwor Street shared to the 1st Respondent exclusively. The witness stated under cross examination that himself, his mother and brothers all live at No. 41 Ojekpolor Street, Boji Boji Owa. That the house was exclusively located to him but he resides with members of his family. He also stated that 1st Defendant was given No. 22 Obiazikwor Street but he was asked to shelter his family members. He said that house No. 22 Obiazikwor Street was given to the 1st Defendant and his brothers and sisters.
The evidence of the 2nd Respondent, Clement Emeka Obinor was as to how he acquired the property No. 22 Obiazikwor Street from the 1st Respondent.
I said earlier, the question is whether property No. 22 Obiazikwor Street was shared exclusively to the 1st Respondent and therefore has right to deal with the property the way he wants to. In addition to the evidence as adduced by the parties before the trial court, I have also carefully considered the pleading of the parties. While each testified in support of their own pleadings.
The trial Judge in evaluating the totality of the evidence led held at page 111 lines 19-26 as follows:-
“The evidence of the 1st Plaintiff in this regard is of no moment as she wasnot present when the sharing was done. She did not lead evidence as to the custom of Owa about sharing of building amongst the deceased’s children. 1st Plaintiff however, tendered Exhibit ‘B’ and B1 in the proceedings as documents relating to her share as well as her children’s share…”
On the evidence of DW2, the learned trial Judge said at page 112 lines 32 as follows:-
“Clearly the 2nd DW fairly contradicted himself in his evidence… I must confess that I do not think that the witness cut a good figure in the witness box. I find no difficulty in holding that DW2 is a liar. I do not rely on his evidence when he said that the 1st defendant was asked to shelter his family members in the house in dispute.”
The learned trial Judge held further at pages 113 lines 16-18 and page 114 lines 26-28 and 33-36 as the record of appeal as follows:-
“I believe DW1’s evidence as to how the deceased’s houses were shared. See also Exhibit C particularly pages 3 and 4…
I am of the strong view that the sharing of the houses of the deceased (Chief M. Obiazikwor Nwozor)was essentially made to the males of the deceased…
I accept the evidence of DW1 and prefer it to any other evidence to the contrary. DW1, seems to me to be a neutral individual and has outstanding status in life… PW2, the entire plaintiff’s and DW2 are deeply involved and are interested parties to this action and 1 do not rely on their evidence as to the sharing of the building.”
From the above findings by the learned trial Judge, it is my view that the trial Judge has properly appraised, analysed and evaluated the evidence of the parties as adduced before him. Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably assess the facts, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted. Once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere. The findings of facts made by a trial court are entitled to respect by an appellate court when it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative values to the evidence before it. In such circumstances, such findings are to be approached by an Appellate court with due caution and not on the basis that it would or might itself found otherwise. The essential consideration is that there is enough evidence on record from which the trial courts findings can be supported. See Enang vs. Adu (1981) 11-12 SC 25; Woluchem vs. Gudi (1981) 5 SC 291; Joe Golday Co. Ltd vs. CDB Plc (2003) 5 NWLR (Pt. 814) 386 and Ezekwesili vs. Agbapuonwu (2003) 9 NWLR (Pt. 827) 337.
In the instant case, the learned trial Judge rightly considered Exhibit C, the distribution/sharing list of the properties of the late Chief Obiazikwor to his children, against the evidence of the Appellants and Respondents. PW1 and DW1 both participated in the sharing of the properties. While the Appellants were saying the properties was shared gate by gate, the Respondents testified that the buildings were shared exclusively to the male children of the deceased and that every male child of the deceased got his share and that the senior ones take more than the younger ones. Exhibit C clearly shows the sharing/distribution of the properties of the deceased to his children which supported the claim of the Respondents. The Respondents pleaded Exhibit C in paragraph 7 (o) and (r) of the Joint Statement of defence. The Respondent’s case is more consistent with the documentary evidence tendered by them. The Appellants did not challenge Exhibit C and there was no any suggestion from them to show that Exhibit C was fraudulent.
Documentary evidence being permanent in form is more reliable than oral evidence and is used as a hanger to test the credibility of oral evidence. In the instant case, in the face of the contradictory evidence given by the Appellants, that the distribution was by gate and not exclusively to the male children, the lower court disbelieved them and accepted the evidence of DW1 that is consistent with Exhibit C as more credible and reliable. See Ezemba vs. Ibeneme (2004) 14 NWLR (Pt. 894) 617.
By virtue of Section 132 (1) of the Evidence Act, oral evidence is not admissible in proof of, or to add to, or in contradiction of a written document. Consequently where such a document is tendered in court, such document is the best proof of its contents and no oral evidence will be allowed to discredit or contradict it. In the instant case, the oral evidence of the Appellants by which they sought to discredit and detract from the written document tendered in evidence, is not admissible to contradict the contents of the document Exhibit C. See Omoniyi vs. Alabi (2004) 6 NWLR (Pt. 870) 551; A.G. Bendel State vs. V.B.A (1986) 4 NWLR (Pt. 37) 551; Jiaza vs. Bamgbose (1999) 7 NWLR (Pt. 610) 197; Koiki vs. Magnusson (1999) 8 NWLR (Pt. 615) 492.
Contradictions in the evidence of a defendant, who by the pleadings has not the initial burden to prove his case, can only be material in the determination of the case if the Plaintiff has in the first place proved his case. Where a Plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail or help the plaintiff in sustaining his claim. Thus in the instant case, there is no contradiction in the evidence of DW1 and DW2. The learned trial Judge did not believe DW2 as a witness of truth and completely discountenanced his evidence in his facts finding mission and relied on the evidence of DW1 and Exhibit C. It is my view that the learned trial Judge tested the veracity of the parties against the rigid yardstick produced by documentary evidence which is evidence of permanent character.
An appellate court is only competent to tamper with the evaluation of evidence and or findings of a trial court if they are not based on proper and dispassionate appraisal of evidence given in support of each party’s case or where such findings are perverse in the nature of the evidence o where on the face of the record it is clear that justice as not been done in the case.
See Fatayinbo vs. Williams (1956) SCNLR 274; Fashanu vs. Adekoya (1974) 6 Sc. 83; and Balgun vs. Akanji (1988) 1 NWLR (Pt. 70) 301. The position in the instant case is not so. The findings of the lower court are not perverse.
Based on what I have said above, it is my view that this appeal lacks merit and should be dismissed. The appeal is hereby accordingly dismissed.
The parties are to bear their own costs.
Other Citations: (2006)LCN/2084(CA)
