Emmanuel Olabode V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal, (Ibadan division) (hereinafter referred to as the court below) delivered on the 26th of March, 2007 upholding the judgment of the High Court of Justice sitting in Ibadan by which the appellant had been sentenced to death by hanging in a charge of murder of one Kehinde Omotanwa contrary to and punishable under Section 319(1) of the Criminal Code, Cap 30, Volume 11, Laws of Oyo State of Nigeria, 1978.

The appellant had been charged before the High Court of Justice sitting in Ibadan for the murder of the said Kehinde Omotanwa (Male) on or about 18th of March 2001 at the New Garage Area, Orita Challenge, Ibadan. After taking his plea, the trial commenced with the prosecution calling five witnesses. The accused/appellant gave evidence but called no witness.

On the 18th of March, 2001, at the deceased’s workshop, at New Garage Area, mechanic under one Adeleke Balogun who testified as PW1, the accused/appellant, a panel beater, poured petrol on the deceased and set him ablaze. Consequently the deceased sustained severe burns all over his body. On seeing that the deceased was burning, the appellant hastily left the scene of the to Adeoyo State Hospital, Ibadan where he was admitted for medical treatment. At a point in time after the incident, the appellant surfaced in the hospital to see the deceased on admission for treatment. There, he undertook, in writing, to be responsible for the medical bill of the deceased, the written undertaking was tendered in the course of the proceedings as Exhibit C, However, the deceased died 14 days thereafter. As I have said, hence the accused/appellant was charged with his murder. After taking evidence of the prosecution witnesses and the only evidence from the defence side who, incidentally, was the appellant himself, and of course, the final addresses of counsel for both sides, the trial Judge, in a reserved judgment delivered on the 31st of October 2002 found the appellant guilty as charged and accordingly convicted him and finally sentenced him to death by hanging. Dissatisfied with the judgment, the appellant lodged an appeal to the court below. After taking the addresses of counsel representing the appellant and the prosecution based on their respective briefs of arguments, the court below, in unanimous decision delivered on the 26th of March 2007 dismissed the appeal while affirming the conviction and sentence passed by the trial High Court. Again, being dissatisfied with the aforesaid judgment of the court below, the appellant has appealed to this court by Notice of Appeal filed on the 20th of April 2007. The said Notice carries four grounds of appeal. Three issues were formulated from the said four grounds for determination by this court, and as set out in the appellant’s brief of argument filed on the 6th of March 2008, they are as follows:

“(1) Whether the Court of Appeal was correct in its conclusion that the arraignment of the accused person was valid having regard to the strict requirements of Section 36(6) of the 1999 Constitution and Section 215 of the Criminal Procedure.

(2) Whether the Court of Appeal was correct in holding that the evidence of PW1 and PW2 was not hearsay and whether the Justices of Appeal were right in treating the incidence of the three eye witnesses as unnecessary for the prosecution case

(3) Whether in the absence of supportive oral testimony by the pathologist, there was reasonable basis for the acceptance by the Court of Appeal of the medical report as sufficiently proving the cause of death”.

The prosecution/respondent for its part identified four issues for determination as set out in the respondent’s brief of argument filed on the 29th of April 2008, they are in the following terms:

(1) Whether the appellant was properly arraigned before the trial court.

(2) Whether the evidence of PW1 and PW2 before the trial court was hearsay.

(3) Whether failure on the part of the respondent to call the pathologist who performed the post-mortem examination on the deceased to give evidence before the trial court was fatal to the respondent’s case.

(4)Whether the prosecution proved its case before the trial court beyond reasonable doubt”.

When this appeal came before us for argument on 26th February 2009, Mr. Kazeem, learned counsel for the appellant adopted his client’s brief of argument filed on 6th March 2008 and the appellant’s reply brief filed and served on the 26th of February 2009 and urged us to allow the appeal. On his part, Mr. Lana, the Attorney-General for Oyo State appearing for the respondent, adopted his client’s brief of argument filed on 29th April 2008 and urged us to dismiss the appeal.

I have had a careful reading of the issues both parties have raised and it is my respectful view that they are all similar. Therefore Issue No. 1 in the appellant’s brief which is similar to Issue No.1 in the respondent’s brief shall be taken together. Issue No 2 in the appellant’s brief which is a replica of issue No 2 in the respondent’s shall also be taken together. Issue No.3 in the respondents brief shall be taken together with issue No.3 in the respondent’s brief for similar reasons. I shall finally take issue No. 4 in the respondent’s brief separately.

On issue No.1, the appellant, through his brief of argument after referring to the provisions of Section 215 of the Criminal Procedure Act Cap 80 Laws of the Federation of Nigeria 1990 and Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria, and a number of court’s decisions the likes of (1) KAJUBO VS. THE STATE (1998) 1 NWLR (Pt.73) 721, (2) ALAKE VS. THE STATE (1991) 8 NWLR (PT.205) 567 and (3) TOBY VS. THE STATE (2001) FWLR (PT. 52) 208 and the contents of the plea by the accused/appellant. It was submitted that the records of proceedings failed to show who read and explained the charge to the accused, the records were bereft of any statement that the trial judge was satisfied that the accused understood English language in which the information had been read to him whereas the appellant had said he made his statement to the Police in Yoruba language. It was finally on this issue submitted that the arraignment of the appellant was invalid for the reason that there was nothing on the record to show that the accused understood the language in which the information was read to him and therefore it was again submitted that the mandatory requirements of the law having not been complied is a nullity. On its part, the respondent after referring to the records of proceedings to show that the appellant admitted understanding English Language that he read up to secondary school certificate level and again that the plea of the accused person as recorded by the trial judge shows clear compliance with the provisions of the law and while referring to the decisions in AKPIRU EWE VS. THE STATE (1992) 7 SCNLR (PT. 1) 59, (2) IDEMUDIA VS. THE STATE (2001) FWLR (PT.55) 549 AND (3) ADENIJI VS.THE STATE (2001) FWLR (PT. 57) 809, it was urged on as to hold that the arraignment was proper.

I start by saying that an arraignment consists of charging the accused and reading over and explaining to him in the language he understands to the satisfaction of the court and then followed with a plea. It is of great importance that the arraignment of an accused must comply with the provisions of Section 215 of the Criminal Procedure Act, Cap 80, Laws of the Federation of Nigeria which reads:

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read”

And Section 36(6) of the 1999 Constitution of the Federal republic of Nigeria which stipulates:

“Every person who is charged with a criminal offence shall be entitled:

(a) be informed promptly in the language that he understands and in detail of the nature of the offence”.

In recording the plea of the accused, the trial judge had written down this:

“PLEA- the information is read over and explained to the accused person in English. He pleads not guilty”.

Yes, it is true that strict compliance with the relevant provisions of the law and the Constitution to enable the court accord a verdict of validity to a plea proceeding. But it seems to me and indeed I have no doubt in my mind that the only reasonable inference from the nature of the plea proceeding, as recorded supra, is that the charge was read to the accused/appellant in the language he understands and that the learned trial judge was satisfied with the explanation of the charge to him (the appellant) before he pleaded guilty. The essence of this the absence of anything to the contrary, the trial Judge must be given the benefit of doubt that he or she could spare no efforts in seeing to the strict compliance with the provisions of the law. let me even go further to say that in murder cases, the like of the present one, even if the accused had pleaded “GUILTY” to the charge of murder after same should have been read and explained to him, the plea of “NOT GUILTY” while I concede that the aforesaid provisions are there to guarantee the fair trial of the accused person and to safeguard as such trial the requirement of strict compliance with the requisite provisions of the law must not be over-stretched to a ridiculous degree. Measure of confidence and counseling or let me call it a dictum of IGUH JSC in OGUNYE VS. THE STATE (1999) 5 NWLR (PT.604) 548 when at page 567 he opined:

“In as much I fully subscribe to the view that it is a good practice, and indeed desirable, that a trial Judge specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto my understanding of the authorities is not that unless the court so expressly records, as now urged upon as by the learned counsel for the 4th and 5th appellants, such an arraignment automatically becomes invalid and null and void. Without doubt, the law enjoins a trial court to be satisfied with the explanation of the charge to the accused person before he pleads thereto. I think, however, that the test with regard to this requirement is subjective and not objective. Clearly, where a trial Judge was not satisfied with the explanation of charge to an accused person, it seems to me that he would have directed that the same be further explained to him before his plea would be taken. Nothing of the sort happened in the present case.

There is nothing absolutely on record to suggest that the learned trial Judge was not satisfied with the explanation of the charge to the appellant.

I have had a careful reading of the whole record of proceedings. I also find anything suggesting that the accused/appellant did not understand the charge when read and explained to him. In fact, there is on record that the accused was educated up to the School Certificate Level. Issue No 1 is therefore not sustainable in favour of the appellant. It is consequently resolved against the appellant but in favour of respondent

On issue No 2 on reach of the brief of argument of the two parties the question that arises is whether the evidence PW1 and PW2 was hearsay and whether the court below was right in treating the evidence of the three eyewitnesses as unnecessary for the prosecution case. PW1 Adeleke Balogun and PW2- Tajudeen Kehinde mechanic and spring painter respectively gave evidence before the trial judge. PW1 said in his testimony thus:

“On 18/3/2001, I was at home at about 2 pm. I had shouts at the workshop. One Tosin came and told me that Omotanwa had been set on fire. As I was going there I saw the car of the deceased going out. I saw the deceased on grounds with burns. He explained that he siphoned petrol from one of the cars in my garage…

The accused then came and took the petrol and poured on the deceased, took a match, lit it and set fire on the deceased”

“I was at house when one Akeem came and informed me that the deceased was in hospital that the accused poured petrol on him. I went to Adeoyo Hospital to see the deceased. He told me that while he was siphoning petrol in his master’s workshop, one Yaya told him to kneel down. Then the accused came and poured petrol on him and set him on fire. The deceased died after 14 days”

The court below’s treatment of the evidence of PW1 and PW2 is as follows:

“PW1 and PW2 gave evidence of what they heard directly from the mouth of the deceased both at the scene of crime and at the hospital, he saw the deceased on the ground writhing in pain and with buries all over him. It was at that stage that the deceased narrated to him the unfortunate event which led to his predicament. This evidence cannot by any stretch of imagination be classified as hearsay since it relates to what he heard, he gave evidence that he heard it by himself from the deceased.”

The above pieces of evidence represent what the witnesses saw and heard from the deceased. Can these pieces of evidence be said to be inadmissible on the ground that they constitute hearsay

I agree with the trial judge (Justice Esan) that the evidence of PW2 cannot pass for a dying declaration for there being no proof that the deceased, when talking to PW2 he was under the apprehension that death was knocking at his door. See R. v. OGBUEWE (1949) 2 WACA 483.Be that as it may, Exhibits B and B1 the statement of the appellant where he said in Exhibit B and I quote:

“So, I said any time or everyday that we packed motor here you came to lick the fuel, he said no. I then asked him to bring the petrol fuel and I wet (sic) his cloth and I set fire on him”

and in Exhibit B1 another statement of the appellant where he said and I quote him:

“About the case filed against me on Tanwa Kehinde (M) I know that the said Tanwa is dead. Before his death, I travelled to Abidjan to look for money for his treatment. But I instructed my brother to sell my properties to be use (sic) in taking care of him. And they used the money to take care of him, but when I came I met him dead’”

Exhibit C as I have said above is the agreement which the appellant voluntarily entered into whereby he undertook to be responsible for monetary expenses incurred – the medical treatment of the deceased. Of course Exhibit B, B1, C and F are pieces of independent evidence, from the evidence of PW1 and PW2 which adversely affect the accused by connecting him with the crime. They richly corroborate the testimonies of PW1 and PW2. See OKABICHI & ORS VS. THE STATE (1975) 1 ALL N. L. R (PT.1) 71. Evidence of PW1 and PW2 is not hearsay afterall. Issue No 2 is therefore is therefore resolved against the appellant but in favour of the respondent.

On issue No.3, which poses the question as to whether failure to call the pathologist who performed the post-mortem examination on the deceased was fatal to the prosecution case, I wish to say that in a criminal case the prosecution is not duty bound to call all witnesses, the appellant on his brief has strenuously argued that failure to call the said pathologist to testify is fatal to the prosecution’s case. Suffice it to say that the respondent argued to the contrary. Exhibit F is the report of the pathologist admitted in evidence. The records of proceedings are replete with explanation as to why the pathologist could not be called. He had ceased to be in the employment of the respondent and his whereabouts remained unknown. But PW4 took custody of Exhibit F, indeed, by virtue of his duty, a Police Officer attached to the Homicide Section of State C.I.D. he obtained the statement Exhibit F from the pathologist. The need for the appearance in court of the pathologist did not arise. Again Issue No 3 is resolved against the appellant but in favour of the respondent.

The respondent raised a further issue which poses the question whether the prosecution proved its case beyond reasonable doubt. Suffice it to say that the appellant did not go to that extent in formulating his issues. I do not want to belabour this matter anymore. Suffice it for me to say that a reading of the whole record of proceedings leaves me in no doubt that the prosecution satisfied all requirements of proof of criminal case beyond reasonable doubt. That issue is therefore resolved in favour of the respondent.

In conclusion, for all I have said, this appeal is in my judgment, unmeritorious. It must be dismissed and it is accordingly dismissed. The judgment of the court below affirming the conviction and the sentence passed on the appellant by the trial court is also affirmed here.

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SC.29/2008

Ani V The State (2009)

LAWGLOBAL HUB Lead Judgment Report

J.O.OGEBE JSC.

The appellants were tried and convicted on a charge of armed robbery contrary to section 1 (2) (a) of Robbery and Firearms (Special Provisions) Act cap. 398 LFN 1990 in the High Court of Enugu State presided over by Nosike J.

The appellants appealed to the Court of Appeal, Enugu Division and the appeal was dismissed on the 10th of March 2003. This is a further appeal to this Court.

The respondents case is that the appellants and 3 others robbed PW1 Chime Ugwu (hereinafter also called ‘the complainant’) of the sum of N300,000 with a gun and iron rod in the early hours of 29th of June 1997. PW1 had known the appellants very well before as the 15t appellant was an apprentice under him and the second appellant frequently visited him. He said that he recognized the appellants with the aid of bush lantern.

The prosecution called 3 witnesses and tendered the statements of the appellants denying any involvement with the crime. The appellants in their statements to the Police raised a defence of alibi which was never investigated by the Police. The appellants case was a total denial of the offence in their evidence in court. DW1 Inspector James Eze gave evidence on their behalf.

The learned counsel for the appellants in their brief formulated 3 issues for determination as follows:

‘1. Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the Appellants by the Court of Appeal.

Whether the learned Justices of the Court of Appeal misdirected themselves in their evaluation of the evidence with which they found that PW1 did not report to the police that ‘unknown thief or thieves’ robbed him, which misdirection, in turn, led to a miscarriage of justice to the Appellants.

Whether the learned Justices of the Court of Appeal were right, in law, to affirm the convictions and sentences of the Appellants by the trial court even though their defence of alibi, raised at the earliest opportunity, was never investigated and there was no conclusive evidence fixing them at the scene of the crime.’

The learned counsel for the respondent also filed a brief and formulated 3 issues for determination as follows:

‘(i) Whether the trial court and the court below were right holding that the charge of armed robbery preferred against the two appellants was proved beyond reasonable doubt.

(ii) Whether the defence of alibi availed the appellants having regards to the peculiar facts of this case.

(iii) Whether the evidential value ascribed to the evidence of the P.W. 1 (complainant) by the court below was a misdirection in law.’

The learned counsel for the appellants submitted that the two lower courts were wrong in convicting the appellants of the offence of robbery when the prosecution failed to prove its case beyond reasonable doubt. He said that the only evidence implicating the appellants was the evidence of P.W. 1 who claimed to have recognized the appellants with the use of bush lamp but in his first report to the Police he told the Police that unknown thieves broke into his house and stole his money. The Police report is exhibit “F” and the Police Officer who recorded exhibit “F” testified as D.W.1. He stated clearly that the report made to him was that unknown thief or thieves broke into the house of the complainant and robbed him of his money.

The learned counsel submitted that the evidence of D.W.1 raised reasonable doubt as to the veracity of the complainants identification of the appellants. The lower court was therefore wrong in convicting the appellants of the offence of robbery. He relied on the case of Bozin V. The State (1985)2 NWLR (pt.8)p.465; Abudu V The State (1985)1 NWLR (pt.1) 55; and Ebre V. The State (2001) 12 NWLR (pt.728) 617 and submitted that where a complainant failed to mention to the Police the names of suspects at the earliest opportunity, his subsequent naming of suspect should be treated with caution.

On the second issue the learned counsel for the appellants submitted that the lower court made a wrong evaluation of the evidence and came to the wrong conclusion in affirming the judgment of the High Court. He said that the Police report in exhibit “F” showed that the complainant reported that unknown thief robbed him and the maker D.W.1 gave evidence that the complainant came back 3 days later and gave the names of the appellants as his suspects. Based on that information the Police arrested the suspects with the complainant as their guide.

The learned counsel for respondents argued issues 1 and 3 together and submitted that the prosecution proved the case against the appellants beyond reasonable doubt and the Court of Appeal was right in affirming the judgment of the trial court. The learned counsel submitted that the fact of the robbery was not disputed and the P.W. 1 clearly identified the appellants as participants in the robbery, and that resolved the only issue in controversy in the appeal. He further submitted that there is no legal requirement for the sole piece of evidence of an adult like P.W.1 to be corroborated and conviction can be founded on the evidence of a single witness once it is credible and accepted by the court. He referred to the case of Stephen Oteki V. The State (1986)4 SC.222.

The appellants were charged with the capital offence of armed robbery and were infact convicted and sentenced to death by the 2 lower courts. It is not disputed that the only eye witness to the event was P.W.1 and the robbery took place at about 4.am when it was still dark and P.W.1 testified that he recognized the appellants with the aid of a bush lantern.

He also testified that he did not mention the names of the appellants to the villagers when day broke, so that the appellants would not run away from the village. That appears to be a plausible explanation. However, on that very day of the robbery he went to Ozalla Police Station and reported that a thief or thieves broke the fence of his gate with iron rod, matchet and torch-light and ordered him to open his door which he opened and they rushed in and attacked him and stole his money worth of N300,000.00 D.W.1 inspector James Eze who made entry in the Police Dairy was summoned to testify on behalf of the appellants; he insisted that the complainant did not mention any names of suspects when he made the first report. He returned 3 days later to mention the names of the appellants and led them to their village to arrest them.

The critical question is why the complainant failed to name the appellants at the first opportunity he had to report to the Police. He claimed that he mentioned the names of the appellants in his first report. Both the trial court and the Court of Appeal failed to consider the question of why Inspector Eze would choose to tell lies against the complainant in the Police report and in his testimony in Court. There was evidence under cross-examination that as at the time of his testimony Inspector Eze had done 29 years in the Police. This showed clearly that he was a very experienced Police Officer.

If the lower courts had adverted their minds to this serious evidence of Inspector Eze in contrast to the complainants evidence it would have shown them that the prosecution did not establish its case beyond reasonable doubt. It should be noted that there was no evidence by the Police that any expired cartridges were found to the compound of the complainant to show that there were gun shots in the night of the incident.

In other words, there was a question mark as to whether the offence committed was actually armed robbery with a gun. In the case of Abudu V. The State (1985) 1 NWLR (pt.1) 55, there was a robbery involving several people and two of the accused persons were identified by a lady but she omitted to mention the names of the accused persons at the earliest opportunity. The High Court convicted the appellants. On appeal to the Court of Appeal two of the Justices dismissed the appeal while Justice Omo-Eboh JCA dissented. On appeal to the Supreme Court it unanimously allowed the appeal and held that where an eye witness omits to mention at the earliest opportunity the name or names of the person or persons seen committing an offence a court must be careful in accepting his evidence implicating the person or persons charged unless a satisfactory explanation is given. See also the cases of Bozin V. The State 2 NWLR (Pt.8) 465 and Ebre V. The State (2001) 12 NWLR (pt.728) 617.

The lower court in affirming the convictions of the appellants reasoned at pages 192 – 193 of the record of appeal as follows:

‘Further still, I would now dwell on the allegation of appellants relating to the disclosure by P.W.1 at the earliest opportunity. From the record of the trial court, at pages 45-48 Inspector James Eze attached to the four corner Ozalla Police Station was the Police officer to whom P.W.1 first made report of the robbery. The said officer was not the investigating Police officer but gave evidence for the appellants as DW. 1 and said.

‘Two persons were arrested, I cannot remember the date of arrest. The arrest were made based on the report made to me. The two persons I arrested based on the report are the accused persons. The name of those arrested are not contained in exhibit ‘F’. Chime Ugwu PW. 1 came back about three days later and mentioned that he suspected two persons who should be arrested.

Deducing from DW. 1 testimony he was unable to remember the date of the arrest of the accused persons but could however remember the accused. Moreover, that the names of the those arrested are not contained in exhibit “F”. Query, if exhibit ‘F’ recorded by DW.1 stated ‘unknown thieves’, one wonders how he was able to make the arrests of the accused as rightly argued by the respondents counsel, and that which the witness wanted the trial court to believe.

From all indications and in my humble deductions, PW.1 must have disclosed the identity of the accused at the time he made the report to the Police Station and which was received by DW.1. There could not therefore have been a report of ‘unknown thief or thieves’ as claimed by him at exhibit ‘F’.

With the greatest respect to the lower court its reasoning was entirely speculative. Inspector Eze made it very clear in his evidence that the complainant returned 3 days after the first report to give the names of the appellants and that led to their arrest. For the Court of Appeal to reason that the complainant must have given the names of the appellants at the first report is not borne out from the record. When it is noted that the prosecution chose not to call Inspector Eze to testify on its behalf as the first person to receive the complaint, it showed that it had something to hide.

The lower court also misdirected itself when it held at page 191 of the records that the PW.1 did recognize the appellants voices when they spoke at the operation. The evidence before the High Court was that the complainant recognized the appellants with a light from a bush lantern. It was in the complainants statement to the Police which was marked I.D. but was not formally admitted in evidence that he mentioned recognizing the appellants by their voices. The Court of Appeal had no business treating that piece of evidence as proved when the statement was never admitted as evidence in the trial court. In any event that statement contradicts P.W.1s evidence before the trial court.

For all I have said I am clearly of the view that the two lower courts were wrong in holding that the prosecution proved its case beyond reasonable doubt. As I have demonstrated, there were serious doubts in the case of the prosecution for any reasonable court to convict the appellants of an offence that carries the capital punishment.

‘On the 3rd issue on the plea of alibi it is quite clear that the Police made no attempt to investigate the alibi of the appellants given in their statements to the Police. The law is that once an alibi has been raised, the burden is on the prosecution to investigate and rebut such evidence. See the cases of Opayemi V. The State (1965) 2 NWLR (pt.5) 101, Bozin V The State (1985) 2 NWLR (pt.1) 465 and Obakpolor V. The State (1991) 1 NWLR (pt. 165) 113.

Without investigating the alibi of the appellants but relying on the questionable identification of the appellants by P.W.1, the Police or the prosecution cannot claim that the case for the prosecution was proved beyond reasonable doubt.

Since I have resolved all the issues in favour of the appellants, it follows that I find the appeals meritorious. Accordingly, I allow the appeals and set aside the convictions and sentences imposed by the lower courts. In their place, I substitute a verdict of Not Guilty. The appellants are discharged and acquitted of the charge against them.

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S.C. 239 /2009

Silas Sule V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is an appeal against the decision of the Court of Appeal, Abuja Division (hereinafter called “the court below”) delivered on 4th April, 2007, affirming the conviction and sentence to death of the Appellant, by Musa, J. of the High Court of Kogi State for culpable homicide under Sections 97(1) and 221 of the Penal Code in his Judgment delivered on 5th May, 2003.

Dissatisfied with the said decision, the Appellant has appealed to this Court on ten (10) grounds of appeal as contained in his Amended Notice of Appeal filed on 12th September, 2008. The facts briefly stated, are that the Appellant and five others, were charged and arraigned before the trial court, sitting at Ankpa on two counts of conspiracy to murder and the murder of the deceased, one Jubrin Umoru Okpanachi. At the trial, five witnesses were called by the prosecution while each of the accused persons, testified in his defence. Thereafter, learned counsel for the parties submitted written addresses. In a considered Judgment, the learned trial Judge, found and held, that the charge of conspiracy, was not made out against the other five accused persons who were accordingly discharged and acquitted. The Appellant was found guilty and was convicted and sentenced to death. Dissatisfied with the said conviction and sentence, the Appellant appealed to the court below which affirmed the said decision of the trial court, hence the instant appeal to this Court.

On 17th March, 2009, when this appeal came up for hearing, the learned leading counsel for the parties adopted their respective amended Brief. While learned counsel for the appellant – Ocholi James, Esq., (SAN) urged the Court to allow the appeal, Abrahams, Esq., (Attorney-General, Kogi State) leading learned counsel for the respondent, urged the Court, to dismiss the appeal. Thereafter, Judgment was reserved till to-day.

In the Appellant’s amended Brief of Argument, nine (9) issues have been formulated for determination. They read as follows:

“(i) Whether or not the Lower Court was right when she held that the statement of the appellant to the police was a confessional statement rather than one raising a defence of self defence and accident. (Distilled from Ground One of the Notice and Grounds of Appeal).

(ii) Whether or not the Lower Court was right when she relied on the inconsistent and unreliable evidence of the prosecution witnesses, especially PW1 to hold that the defence of self defence was not open to the Appellant. (Distilled from Ground Two of the Notice and Grounds of Appeal).

(iii) Whether or not the Lower Court was right when she invoked section 150 (1) of the Evidence Act, Laws of the Federation 1990 to justify the outright violation of the express and compulsory provision of section (sic) 167 and 185 of the Criminal Procedure Code. (Distilled from Ground Three of the Notice and Grounds of Appeal).

(iv) Whether or not the Lower Court was right when she held that lack of objection by the Appellant (sic) Counsel to the lumping of his plea and the knowledge and understanding of the charges by the Appellant are sufficient to justify the violation of the mandatory and compulsory provision of section (sic) 161 and 212 of the of the Criminal Procedure Code. (Distilled from Ground Four of the Notice and Grounds of Appeal).

(v) Whether or not the Lower Court was right when she ignored section (sic) 161 and 212 of the Criminal Procedure Code which was canvassed before her, but went ahead to consider section 215 of the Criminal Procedure Act, a section of the law neither canvassed before her nor applicable to this case. (Distilled from Ground Five of the Notice and Grounds of Appeal).

(vi) Whether or not the Lower Court was right when she held that, since the Medical Officer on duty at the General Hospital Ankpa, Kogi State, when a corpse alleged to be that of the deceased in this case was brought, did not complain of identifying the corpse brought to the hospital on the 24th June 1999, identification of the said corpse was not necessary. (Distilled from Ground six of the Notice and Grounds of Appeal).

(vii) Whether or not the Lower Court was right when she held that Christopher Sule and Jibrin Umoru ought to have been convicted for conspiracy and culpable homicide along with the appellant, when the said accused persons were discharged and acquitted of the said offence by the trial Court due to the inconsistency and unreliability of the evidence adduced by the prosecution at the trial and no cross appeal was filed before the Court of Appeal challenging the finding/verdict of the trial Court in this regard. (Distilled from Ground seven of the Notice and Grounds of Appeal).

(viii) Whether or not the Lower Court, haven (sic) held that there are contradictions in the prosecution evidence and poor quality of investigation was right in dismissing the appeal. (Distilled from Ground Eight of the Notice and Grounds of Appeal).

(ix).Whether exhibit B, the statement of the Appellant before the trial Court is admissible in law, the same haven (sic) being obtained through an interpreter who did not testify before the trial Court (Distilled from Ground 10 of the Notice of Appeal, Newly raised in this Appeal)”.

On its part, the Respondent formulated six issues for determination, namely,

(i) Whether the Lower Court was correct in holding that from the facts of this case, the defence of self defence was not open to the Appellant. (See Grounds 1 and 2).

(ii) Whether the Lower Court was correct in holding that the Appellant and his Counsel having acquiesced in an irregular procedure that did not lead to a miscarriage of justice, they cannot be heard to complain against the irregularities on appeal. (See Grounds 3, 4, and 5).

(iii) Whether the prosecution has proved the guilt of the Appellant beyond reasonable doubt as required by law (see Grounds 1,2,6,8 and 9).

(iv) Whether the Lower Court was correct to affirm the conviction and sentence of the Appellant on view of the finding of the trial Court that the evidence of the prosecution did not establish the charge of criminal conspiracy. (See Ground 8).

(v) Whether Exhibit “B” is admissible in evidence in this case (see Ground 10).

(vi) Whether or not the remarks of the Lower Court that Christopher Sule and Jibrin Umoru ought to have been convicted alongside the Appellant for the offences of culpable homicide and criminal conspiracy being obiter dicta and not relating to the Appellant, he can challenge them in this Appeal). (See Ground 7)”.

Before going into the merits of this appeal, I note that in grounds 1, 2, 3, 4, 5, 6 and 7, the Appellant equated, treated or regarded His Lordship – Adekeye, JCA (as he/she then was now JSC) who wrote the lead Judgment, with or as the Court of Appeal. I say so because, in grounds 1, 4, 6, the following appear:

“The Court of Appeal erred in law when she held “.

In ground 2, it is “The Court of Appeal erred in law “When she relied on…”

In ground 3, it is “The Court of Appeal erred in law “when she invoked…”

In ground 5, it is “The Court of Appeal erred in law “when she ignored…”

In ground 7, it is “The Court of Appeal erred in law when in spite of the fact that there was no cross appeal before her, held…”

Also in issues for determination Nos (i), (iv), (vi) and (vii) it is stated thus-

“Whether or not the Lower Court was right when she held …….” while in issue (ii) it is stated, “Whether or not the Lower Court was right when she relied on……”; Issue (iii) “Whether or not the Lower Court was right when she invoked……”, and issue (v) it is stated, inter alia, “Whether or not the Lower Court was right when she ignored …… which was canvassed before her …….”, a section of the law neither canvassed before her…….”.

I have ignored some typing errors both in the amended Notice of Appeal and in the issues for determination such as typing “having” as “haven”. It need not be over-emphasised that learned counsel who file or cause the filing of court processes in an Appellate Court and especially in this Court, should please vet and ought to vet, those processes, before they are filed.

It is noted by me with respect, that Issues (i) and (ii), (iv), (vii), (viii) and (ix) respectively of the appellant, are substantially similar to Issues (i), (ii), (iii), (iv) and (v) of the respondent respectively although differently couched.

Now, in a murder case, it is now firmly established that what the prosecution must prove beyond reasonable doubt are-

“(i) that the deceased had died

(ii) that the death of the deceased resulted from the act of the appellant.

(iii) that the act of the appellant was intentional with the knowledge that death or bodily harm was its probable consequence”.

See the cases of Ogba v. The State (1992) 2 NWLR (Pt.222) 164; (1992) 2 SCNJ. 106; Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1 at 11; (1996) 2 SCNJ. 42; Gira v. The State (1996) 4 NWLR (Pt.443) 375 at 383; (1996) 4 SCNJ. 94; Igago v. The State (1999) 12 SCNJ. 140 at 162, 166 and Uguru v. The State (2002) 4 SCNJ. 282 at 293 just to mention but a few.

In the instant case leading to the appeal, the appellant, does not dispute the death of the deceased. What is in dispute, is that the death of the deceased, was not from the act of the appellant. While the prosecution maintains that it was the appellant who had a knife, and who stabbed the deceased with it. That when all the accused persons saw that the deceased had died, they all ran away. See the evidence of the PW1 at page 24 and PW3 at page 26 of the Records. The appellant in his evidence denied the assertions of the said prosecution witnesses. He testified in chief at pages 11 and 12 of the Records inter alia, as follows:

“…Before I could talk, deceased brought out his knife. He wanted to stab me but I dodged the knife, and held him. Then his leg fell into the gutter (sic) (meaning gutter). When he fell down the knife in his hand fell. He was struggling to pick the knife to stab me by all means but I first picked the knife before him. I wanted to run away with the knife so that he won’t stab me but he was bigger than me and I am not as powerful as the deceased. As deceased was struggling to collect the knife from me the knife then entered his tie. Deceased then shouted that he had been wounded and I then ran away….”. (the underlining mine)

From the above, in my respectful view, the crucial issue to be determined by this Court or by me, is whether the Appellant, actually and deliberately stabbed the deceased with the knife or whether the said knife “entered” the thigh of the deceased by the act of the appellant by way of self defence as has been canvassed by the learned Counsel for the appellant in their amended Brief or that the entry was accidental. This issue is covered by Issues (i) and (ii) of the appellant and issues (i) and (iii) of the respondent. I will take the said issues together.

PW1 in her Statement to the Police at page 10 of the Records, stated inter alia, that the appellant was carrying a knife with which he stabbed the deceased twice on his left thigh “deeply” and that the deceased shouted that he had been killed and so fell down and died. That after the accused persons had made sure that the deceased was dead, they said that they have killed him and that whoever had any question, should come and ask them and that they ran away. Her evidence in court, was substantially not different from her said statement to the police.

PW2 in his evidence in-chief at page 25 of the Records, testified that when he arrived at the scene, he saw the deceased lying down in a pool of blood. He held the deceased thinking he would survive, but after a while, he died.

The appellant in his statement to the Police – Exhibit “B” made by him on 19th July, 1999, – the very and same day he was arrested and which he signed, stated at page 12 of the Records inter alia, as follows:

“………. Then on the 24/6/99 in the evening (sic) I went to go and buy something on the road side then Jibrin Umaru Okapanchi (i.e. the deceased) stop me and he told me that God has catch me today then from there he (refuse) removed knife in order to stab me with it, I then dogged, (sic) and grip him and he fall down as the leg enter gotter (sic) and the knife fall away from his hand. I then pick the knife. I then told him that I am going to stab you with the knife since you have miss me. I then stabbed him on his left thigh the knife I use on the Jibrin Umoru Okpanachi now deceased the knife is not among the knife here with the police, and when I stabbed him with the knife I ran away from the place before I drop the knife. I cannot identified (sic) the knife I use on him…”. [the underlining mine]

I note that the appellant testified in court on 20th November, 2001 and was cross-examined on 9th July, 2002. In fact, at page 33 of the Records, he stated that he had been in prison custody for two years and five months. So that at the time he was cross-examined, he had been in prison custody for about three years. I have earlier in this Judgment reproduced/stated that the appellant denied deliberately stabbing the deceased. He maintained this stance even in his evidence under cross-examination at page 36 of the Records.

The learned trial Judge at page 64 of the Records, referred to the case of Bakare v. The State (1987) 1 NWLR (Pt.52) 579 (it is also reported in (1987) 3 SCNJ 1) cited to him by the learned defence counsel about the essential ingredients of the offence of culpable homicide punishable with death and at page 65, His Lordship, found as a fact and held or stated inter alia, as follows:

“…The death of Jibrin Umoru Okpanachi took place on 24/6/99 shortly after he was stabbed by the first accused knowing the consequence of his act took to his heels and took refuge in Kwara State”. [the underlining mine]

His Lordship also, referred to the case of Uguru v. The State (2002) 4 SCNJ. (page not stated but it is at page 282 at 293 (supra) where it was held that the cause of death in the case, was the injury inflicted on the deceased by the accused who was found guilty as charged, and stated inter alia, thus –

“From the foregoing, it is my view that the Prosecution has proved the guilt of the 1st accused beyond reasonable doubt having regard to the overwhelming evidence of the prosecution witnesses ….” [the underlining mine]

The court below in dealing with Issue 1 of the appellant which is the same with issues 1 and 2 of the respondent in this appeal, found as a fact and stated at page 171 of the Records, inter alia:

“In the circumstance the defence of self defence was not open to the appellant”.

The court cited and relied on some decided authorities in respect thereof – i.e. Queen v. Adelodun 1959 WRNLR 114, State v. Agbo 1973 3 ECLR Pt. 1 pg 4, Duru v. The State 1993 3 NWLR Pt. 281 pg 283, Laoye v. The State 1985 2 NWLR Pt.10 pg 832, Nungu v. Queen 1953 14 WACA 379, Aganmonyi v. A – G Bendel State 1987 1 NWLR Pt.47 pg 26, Stephen v.The State 19865 NWLR Pt.47 pg 26, Audu v. The State 2003 7 NWLR Pt. 820 pg 516.

At page 186 thereof, it found as a fact and held or stated inter alia as follows:

“The appellant inflicted the deep cut on the left thigh of the deceased which caused the haemorrhage that resulted in his instantaneous death. The knife used which the appellant admitted he threw away was a lethal weapon. A man is presumed to intend the natural consequences of his act. Where a man causes another person grievous bodily harm, he is presumed to have intended to kill that person and he would be guilty of murder irrespective of his intention. The learned trial judge was right when it (sic) convicted the appellant of murder”.

In my respectful view, these findings of fact and holdings by the two lower courts, are borne out from the Records. It is now firmly settled and this is trite law that to secure a conviction for murder, the prosecution, must prove beyond reasonable doubt that the death of the deceased, was caused directly or indirectly, by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused person have caused the death of the deceased, but that in actual fact, the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. See the cases of R. v. Nwokocha (1949) 12 WACA 453 at 455; The State v. Omoni (1969) 2 ANLR 337; Adie v. The State (1980) 1-2 S.C. 116 at 122- 123; R. v. Owe (1981) ANLR 680 and Princewill v. The State (1994) 7 – 8 S.C. (Pt.11) 226 at 240 jut to mention but a few.

Thus, where a person is attacked with a lethal weapon (such as a knife as in the instant case leading to this appeal) and he died on the spot (again as in the instant case), it is reasonable to infer that the injury inflicted on him, caused the death. See the case of Bakuri v. The State (1965) NMLR 163.

It need be stressed and this is also settled that the role of a trial court, is to hear evidence, to evaluate the evidence, to believe or disbelieve a witness or witnesses, to make findings of fact based on the credibility of the witness or witnesses who testified and to decide the merits of the case based on the findings. See the cases of The State v. Aigbangbee & anor. (1988) 3 NWLR (Pt.84) 548; (1988) 7 SCNJ 128; (1988) 2 NSCC 192 and Grace Akpabio & ors. v. The State (1994) 7 – 8 SCNJ (Pt.111) 429.

It is also to be borne in mind always as it is also settled that a court, can act on the evidence of one single witness if the witness can be believed given all the surrounding circumstances of the case. A single credible witness, can establish a case, beyond reasonable doubt unless where the law requires corroboration. In other words, the evidence of one credible witness, accepted and believed by the court, is sufficient to justify a conviction unless of course, such a witness is an accomplice in which case, his testimony would require corroboration. See the cases of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509 at 523; (1991) 3 SCNJ 61; Akalezi v. The State (1993) 3 NWLR (Pt.273 1 at 13; (1993) 2 SCNJ 19 at 29-30; Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660 at 674; (1993) 6 SCNJ 217; Alhaji Babuga v. The State (1996) 7 SCNJ 217 at 231 and too many other authorities in this respect.

A trial Judge can or could, under certain circumstances, accept part of the testimony of a witness and reject the rest. See the case of Obiora & ors. v. The State (1970) 1,All NLR 35; (1970) ANLR 36 referred to in the case of Ibeh v. The State (1997) 1 SCNJ 256.

Finally, the duty of evaluating and appraising evidence, is that of the trial court that saw and heard the witnesses and an appellate court, may not interfere or disturb a finding or conclusion in a judgment except in certain circumstances which have been stated and restated in many decided authorities of this court. In this case, there are the concurrent findings of fact and holdings by the two lower courts in respect of the said issues referred to above in this judgment. As I find as a fact and hold that they are not perverse, the attitude of this court in that regard, is now firmly settled i.e. it cannot disturb or interfere. See the cases of Ibeh v. The State and Ugwumba v. The State (supra); Ejelikwu v. The State (1993) 7NWLR (Pt.307) 554 at 586; (1993) 9 SCNJ 52; Princent v. The State (2002) 12 SCNJ 280 at 300 citing some other cases therein and Amusa v. The State (2003) 1 SCNJ 218 also citing some other cases therein.

This should have been the end of the appeal, but before concluding this judgment, I will touch/deal briefly with issue (ix) of the appellant and issues (v) and (vi) of the respondent. A dispassionate perusal of Exhibit “B” – the Statement of the Appellant to the Police by me, puts me in no doubt whatsoever, that it is a confessional statement voluntarily made by the appellant. It is an unequivocal admission by the appellant, that he stabbed the deceased with a knife on his left thigh. In fact, by raising the plea of self-defence or accident in his amended Brief and Reply Brief, it is an admission that he did the act for which he was charged, convicted and sentenced, but that it was by self-defence and that it was justified, or that it was an accident. See the case of Isaac Stephen v. The State (1986) 5 NWLR. In the first place, the two defences are contradictory or inconsistent. This is because, for an act to qualify as an accident, it must be a surprise to the ordinary man of prudence. That is, a surprise to all sober and reasonable people. In the case Aliu Bello & 13 ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828, Karibi-Whyte, JSC, stated inter alia;

.”An accident is the result of an unwilled act, and means an event without the fault of the person alleged to have caused it”.

The test is always objective. See the cases of Adulumola v. The State (1988) 1 NWLR (Pt.23) 683 at 692-693; (1988) 83 SCNJ. 68 and Umoru v. The State (1990) 3 NWLR (Pt.138) 363 at 370 C.A. Again, the act leading to the accident, must be a lawful act done in a lawful matter. See the case of Abdulbaki v. Katsina N.A. (1961) NNCU 12. I note however, this defence was not canvassed or seriously canvassed. Self defence means that the accused person did the act while in the process of defending himself, but with no intention to kill or cause grievous bodily harm.

However, Section 27 (1) of the Evidence Act defines a confession as an admission made at any time by a person charged with a crime, stating or supporting the inference that he committed that crime. I note that at page 31 of the Records, that there was no objection by the learned defence Counsel – Mr. Ugwuaruchukwu when Exhibit “B” was tendered. Said he-

“My Lord, we have no objection as he (meaning the Appellant) agreed to have signed the statement”.

I noted this fact of the Exhibit “B” being signed by the appellant earlier in this judgment. The consequence is that the appellant agreed or admitted that he made Exhibit “B”. There is the evidence of PW5 – the Investigating Police Officer before it was tendered, inter alia, as follows:

“….After his confessional statement I read same to him in English language and was interpreted to him by P C Baba Abdullahi. (a Police Constable). He said the statement is correct and signed. The interpreter signed and I counter signed as a recorder. Based on the confession he made I took him before my officer in charge Homicide Mr. Bitrus Ali for attestation. Bitrus is an ASP. My O.C. read the statement to the accused and was interpreted by P C Baba Abdullahi and the accused said it was correct and he signed. My O. C. endorsed the confessional statement and signed….”.

In any case, the failure to object and the later retraction, it is settled, cannot vitiate the proceedings. See the cases of Obidiozo & ors. v. The State (1987) 1 NWLR (Pt.67) 748; (987) 11-12 SCNJ. 103; Okaroh v. The State (1988) 3 NWLR (Pt.8]) 220; (1988) 1 SCNJ. 124 and Ikemson & 2 ors. v. The State (infra). In my humble and respectful view, any contention, suggestion or submission that Exhibit “B” is inadmissible even in spite of the evidence I have reproduced above and the absence of any objection by the defence counsel will be grossly misconceived in the extreme. I therefore, hold that Exhibit “B” was admissible in evidence. Even if it was retracted by the appellant in his evidence at the trial, it was of no moment. I say so because, in the first place, a court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement, is part of the evidence adduced by the prosecution. See the cases of Obosi v. The State (965) NMLR 119; lkemson & 2 ors. v. The State (1989) 3 NWLR (pt. 110) 455, at 467-468; (1989) 6 SCNJ. 54; Ejinsima v. The State (1991) 6 NWLR (pt. 200) 637; (1991) 7 SCNJ. 318; Durugo v. The State (1992) 7 NWLR (Pt.255) 525; (1992) 9 SCNJ. 46; Egboghonoma v. The State (1993) 7 NWLR (Pt.306) 382); (1993) 9 SCNJ. (Pt.1) 1 at 29, 32, 48 and Princewill v. The State (supra) and too many other cases.

Secondly, a confession it is settled, does not become inadmissible, merely because an accused person, denies having made it and in this respect, a confession contained in a statement made to the Police by a person under arrest, is not to be treated differently from any other confession. In other words, all the usual tests put forward in the case of R v. Kanu (1952) 14 WACA 30 in the principles in R. v. Sykes (1913) 8 CA.R. 233 were adopted, would have to be considered. See the cases of Ejinima v. The State (supra) and Aiguoreghian & anor. v. The State (2004) 3 NWLR (Pt.860) 367; (2004) 1 SCNJ. 65; (2004) 1 S.C (pt.1) 65. For purposes of emphasis, the denial of a statement made by the accused person to the Police is not only an issue of fact to be decided in the judgment, but an issue, which does not affect admissibility of the statement.

It is submitted in the Appellant’s amended Reply Brief that the statement contained in Exhibit “B” is not that of the Appellant and that it is in fact a hearsay evidence. With the greatest respect, this submission is grossly misconceived. I have already noted in this judgment that Exhibit “B”, was admitted in evidence without objection and that the appellant signed it. In my respectful and firm view, in the circumstances of the evidence of PW5, the calling of PC Abdullahi was unnecessary. PW5 was the Recorder and he produced it. The appellant in his evidence under cross-examination, stated thus:

“I remember I made statement to the state CID in Lokoja”.

It is that statement he made and which he signed both before the PW5 and the Superior Officer – Mr. Bitrus Ali that was produced and tendered without objection and marked Exhibit “B”. Period!

If Exhibit “B” is not that of the Appellant, then of course, this amounts to a retraction of Exhibit “B”. In such a situation, there arises, an inconsistency. The inconsistency Rule is that such testimony at the trial, is treated or it is to be treated as unreliable while the earlier statement, is not regarded as evidence on which the court can act. See the cases of Egboghonome v. The State (supra); Bature v. The State (1994) 1 NWLR (Pt.320) 267; (1994) 1 SCNJ 19 at 32 citing several other cases therein; Nemi & ors. v. The State (1997) 10 SCNJ 1 and Emoga v. The State (1997) 7 SCNJ 518 citing several other cases therein.

It is therefore, with respect, another gross misconception when it is submitted in paragraph 2.4 of the appellant’s Reply Brief, that the testimony of the appellant before the trial court is the only reliable evidence or statement of the appellant before this Court. It cannot and could not be on the decided authorities including the cases of Nwankwoala v. The State (2007) 2 NCC 107; John Agbo v. The State (2007) 2 NCC 158 and Aibangbee v. The State (2007) 2 NCC 648 cited and relied on in the respondent’s Brief which regrettably it is submitted in the said appellant’s amended Reply Brief, that the issue of the Appellant making conflicting statement to the Police and before the trial court, does not arise.

In respect of issue (vii) of the appellant and issue (iv) of the respondent, I note that the court below held at page 185 of the Records, that the decision of the learned trial Judge acquitting and discharging the other accused persons on the count of conspiracy, was/is perverse having regard to the circumstances of this case leading to this appeal. I agree with the court below when it stated at page 186 of the Records, that there is overwhelming evidence to convict the appellant, 2nd and 4th accused persons, of conspiracy and culpable homicide. It gave its reasons for so holding. As it rightly stated, it was the appellant, in furtherance of the agreement of the accused persons to kill the deceased, who struck or stabbed the deceased. The learned trial Judge found as a fact at page 63 of the Records, inter alia, that,

“Evidence of the prosecution witnesses show that there are elements of conspiracy by the accused persons to kill the deceased “. [the underlining mine]

This fact, is borne out in the Records. I however, with respect, do not agree with the court below when it absolved the 6th accused person – Titi Sule – the mother of the appellant from the charge of conspiracy. She in fact, instigated and masterminded the murder of the deceased. There is the evidence of her open boast at the Chief Magistrate’s Court, Inye, to deal with the deceased after the acquittal and discharge of the deceased of a charge of causing hurt to the 5th accused person Timothy.Sule who is a brother of the appellant. Shortly thereafter, a meeting was held in the house of the 4th accused person to eliminate the deceased. There is the evidence of the PW1 at page 24 of the Records that it was Titi Sule their mother, who accompanied the other accused persons, to carry out the act. In her statement to the Police, at pages 5 and 10 of the Records, she stated that it was the 6th accused person, who led the other accused persons to the compound or scene and in fact, ordered them to attack the deceased.

Conspiracy to commit an offence, is quite often, inferred from circumstantial evidence. It is based on common intent, or purpose. See the case of Aigbe v. The State (1976) NMLR 184. When once there is such evidence to commit the substantive offence, it is settled that it does not matter, that any of the conspirators did what. See the case of Alegba & ors. v. The King (1950) 19 NLR 129. That was why, the court below, stated rightly in my view that,

“the appellant struck on behalf of all the others in furtherance of the agreement to attack the deceased on 24/6/99”.

Afterwards, the appellant, was not convicted by the trial court of conspiracy, but only of the substantive charge of murder. See page 65 of the Records. However, an accused person, can be discharged on a charge of conspiracy, but convicted on the substantive offence. See the case of Njovens v. The State (1973) 3 ECSLR 17 at 18; (1973) 5 S.C. 7.

As I have stated, the offence of conspiracy, can even be inferred from circumstantial evidence. It is settled that it is not necessary in order to prove conspiracy, that the conspirators, should be seen like those who murdered Julius Caesar, to be coming out of the same place at the same door. See the case of Francis Tole Lawson & ors. v. The State (1975) 1 ANLR (Pt.1) 175 at 181-182.

An offence of conspiracy, can be committed, where persons have acted either by an agreement or in concert. Bare agreement to commit an offence, is sufficient. The actual commission of the offence, is not necessary. See the case of Ikemson & 2 ors. v. The State (supra). See also the discussion on conspiracy in the case of Mumini & ors. v. The State (1975) 6 S.C. 79 at 92-93. However, it is a known principle of law that conspiracy to commit an offence, is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. See the case of Balogun v. Attorney-General of Ogun State (2002) 2 SCNJ.196 at 209 – per Uwaifo, JSC. I concede that generally, as it takes two to conspire, a person cannot be convicted of conspiracy, if the others are acquitted and discharged. However, each case must be considered on its own facts. To convict only one for conspiracy, suggests that the others, were equally guilty of conspiracy though acquitted and discharged. See the case of Ogugu & 4 ors. v. The State (1990) 2 NWLR (Pt.134) 539 at 555 – per Awogu, JCA.

I am aware that the Court of Appeal, Lagos Division, in the case of Kenneth Clark & anor. v. The State (1986) 4 NWLR (Pt.35) 381 – per Kolawole, JCA (of blessed memory) stated that if there are substantive charges which can be proved, it is in general undesirable, to complicate and lengthen the trial by adding a charge of conspiracy. That it is undesirable to combine a charge of conspiracy, with a charge of the substantive offence – it gave its reasons for so stating. That the courts have deprecated the practice of including a count of conspiracy to commit an offence in an

Information as well as a count for actually committing it, where the evidence to support the two counts, is the same. I note that the court below, dealt with the issue of conspiracy adequately in my respectful view at pages 183 to 185 of the Records and referred to the cases of Clark v. State (supra); Gbadamosi v. State (1991) 6 NWLR (Pt.196) pg 182; Njovens v. State (supra); Majekodunmi v. Queen 14 WACA 64; Daboh v. State (1977) 5 S. C. 167; Onochie v. Republic (1966) 1 All NLR 86, Nwankwo v. FRN (2003) 4 NWLR Pt. 809 pg 1 and Abacha v. State (2002) 11 NWLR Pt. 779 pg. 437.

It concluded at pg 185 thereof, inter alia, thus

“In the surrounding circumstance of the evidence available on the record of proceedings about the incident and regardless of the contradiction or quality of the investigation in this matter – I regard the evidence of the prosecution as more convincing and credible in arriving at the truth of the matter”.

It referred to the cases of Woluchem v. Gudi 1981 5 S.C. 291; State v. Usman 2005 1 NWLR Pt.906 pg 80 and State v. Ajie 2000 11 NWLR Pt.678 pg 434. I take it that it regarded and treated any contradiction and quality of investigation, as not being substantial to affect the case of the prosecution and I say that it was entitled to do so. I so hold. This is why it concluded that,

“Where common intention is established a fatal blow as in this case with a knife given by one of the parties is deemed in the eyes of the law to have been given by all those present and participating.

The person who delivered the fatal blow in such a case is no more than the hand by which others struck”.

It referred to the cases of Offor v. Queen 1955 15 WACA 4; Adekunle v. State 19895 NWLR Pt. 123 pg 505; Nwakwala v. State and Ikemson v. State supra. The above is why I agree with the court below that the trial court, was in error in acquitting and discharging some of the accused persons. But the law is settled that the error or mistake by a trial Judge or court, will not, lead to the nullification of the entire proceedings or necessarily determine an appeal in favour of an appellant or automatically, result in the appeal being allowed. It is only when the error is so substantial, that it has occasioned a miscarriage of justice that an Appellate Court will interfere. There are too many decided authorities in this regard. See the cases of Gwonto v. The State (1983) 1 SCNLR 142 and Odukwe v. Mrs. Ogunbiyi (1998) 8 NWLR 339 at 351; (1998) 6 SCNJ 102 at 113, just to mention but a few. I have gone this far, because of the apparent fuss demonstrated in the two Briefs of the appellant. I need not therefore, go into the other issues which I regard as unnecessary and most irrelevant in the determination of this appeal.

In concluding this Judgment, I have no hesitation whatsoever, in holding and I so hold that this appeal, lacks substance and merit. I accordingly dismiss it and hereby, affirm the decision of the court below affirming the conviction and sentence to death of the appellant by the trial court. The rest of the accused persons in my respectful but firm view, are lucky, as there is no cross-appeal in this court by the respondent as regards their unwarranted and unjustified acquittal and discharge by the trial court in respect of the charge of conspiracy.

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SC.256/2008

Jumang Shelim V. Fwendim Gobang (2009)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C

Proceedings in the matter culminating in the appeal herein were first instituted at the Grade 1 Area Court, Pankshin in Plateau State, of Nigeria. The respondent who was the plaintiff at the trial court claimed against the defendants who are appellants in this court as follows:

“I have sued the defendants because they entered my land. The land is situated at Tasuk. I got the (sic) from my father Goban who inherited it from Tongkhit. There are pawpaw tree, gung tree and

olive tree at the boundary. I reported the defendant to our ward head over the land and it was given to me ———————-I want the court to get me the land from the defendant”

The trial court asked for the reaction of each defendant to the plaintiff s claim. Each of them replied that he heard but disagreed with the plaintiff. The trial court gathered the evidence adduced on both sides of the divide and visited the locus inquo. In its judgment handed out on 2th January, 1993, the trial court follows:

“In weighing the evidence from both sides therefore, the court is of the opinion that the evidence on the side of the plaintiff is heavier than that of the defendants. This suggests that the plaintiff has discharged the burden of proof that lies on him for his claim. In the light of that, title to the disputed land is hereby declared (sic) to the plaintiff.”

The defendants who felt unhappy with the stance posed by the trial area court, appealed to the Plateau State Customary Court of Appeal. On their behalf, an application was filed seeking leave to argue additional grounds of appeal. On 18th February, 1994, the application was heard and granted by only two Judges to wit: Yakuhu, PPCA and Goften, JCCA. The propriety of same, as will he discussed latter in this judgment, is the bed-rock of this appeal.

The Customary Court of Appeal later heard the appeal. In its judgment, the decision of the trial area court was reversed. Judgment was entered for the appellants thereat.

The plaintiff who was aggrieved with the decision of the Customary Court of Appeal, appealed to the Court of Appeal. In its real essence, the court below treated the appeal based on the issue whether the decision of the Customary Court of Appeal is a nullity. The Court of Appeal considered in detail arguments canvassed in respect of the issue by both sides and concluded thus:-

“It is clear that there was no valid Notice of Appeal before the lower court. It is also clear that there was no proper constitution of the lower court. Accordingly, I declare the proceedings of the lower court including the judgments, a nullity. The net result is that this appeal succeeds on this issue alone and it is hereby allowed. There is no need for me to consider the other issues.”

The appellants felt irked by the judgment of the court below as handed out on 27th March, 2002. A Notice of Appeal which contains two grounds of appeal was filed on their behalf on 15th May, 2002.

On 24th March, 2009 when the appeal before this court fell due for hearing, both sides had cause to amend their respective briefs or argument. Learned counsel for the appellant adopted and relied on the amended appellants’ brief. He thereafter urged that the appeal be allowed. Learned counsel for the respondent, in the same fashion, adopted the respondent’s amended brief of argument and after making certain oral submissions, he urged that the appeal be dismissed.

On page 2 of the appellants’ amended brief of argument, two issues distilled for determination of the appeal read as follows:-

“(i) Whether the grounds of appeal filed by the respondent then appellant at Court of Appeal raised issue(s) of customary law and are therefore competent grounds.

(ii) If the grounds of appeal especially ground 5 of the amended Notice and grounds of Appeal do not raise customary issues(s) does the Court of Appeal have the jurisdiction to hear the appeal and on the strength of ground 5 reverse the decision of the Customary Court of Appeal in view of Section 224(1) of the 1979 Constitution and Section 282(1) of the 1999 Constitution”

On page 3 of the respondent’s amended brief of argument, it can be seen that the respondent decided to adopt the two issues decoded by the appellants as set out above. On behalf of the appellants, learned counsel submitted that a right of appeal only lies from the Customary Court of Appeal of a State to the Court of Appeal on grounds of customary law alone. He cited the case of Hirnor v. Yango (2003) 9 NWLR (Pt. 824) 77 at 87.

Learned counsel further submitted that a ground of appeal touching on weight of evidence is clearly outside the precincts of customary law as it turns on the evaluation of evidence and nothing more. He cited the cases of Golok v. Diyalpwan (1990) 3 NWLR (Pt. 139) 411 at 417; Usman v Umaru (1992) 7 NWLR (Pt 24) 377; Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt 450)

531; Maigoro v. Garba (1999) 10 NWLR (Pt. 624) 555.

Learned counsel for the appellants dealt with ground 5 of the amended Notice and Grounds of Appeal. This relates to the crux and indeed the kernel of this appeal. He felt that the gist of the ground of appeal is that the Customary Court of Appeal lacked jurisdiction and the judgment of that court, given without jurisdiction, is a nullity. He pointed it out that according to the respondent, the Customary Court of Appeal lacked jurisdiction because it was not properly constituted in accordance with Decree 107 of 1993 when it granted the appellants’ application for additional grounds on 18th February, 1994. The Court of Appeal held the additional grounds as being incompetent and since the only original ground in the Notice of Appeal was abandoned during argument and was accordingly struck out, there was no valid Notice of Appeal.

Learned counsel for the appellant, in essence, strenuously argued that a complaint in respect of jurisdiction touching on the Coram of the Customary Court of Appeal is not a ground of customary law. He felt that the Court of Appeal had no jurisdiction to entertain the complaint in respect of that ground. He cited that cases of Koden v. Shidon (1998) 10 NWLR (Pt 571) 662. Pam v. Gwon (1998) 2 NWLR (Pt. 538) 470 at 475: Dambuk v. Manding (1998) 2 NWLR (Pt. 539) 700 at 702; and David v. Zabia (1998) 7 NWLR (Pt. 556) at 112 – 113.

Learned counsel finally reiterated that by virtue of section 224 (1) of the 1979 Constitution as amended by Decree 107 of 1993 and section 282 (1) of the 1999 Constitution, an appeal only lies from the decisions of a Customary Court of Appeal to the Court of Appeal with respect to only questions of customary law. He urged us to hold that ground 5 of the amended notice and grounds of appeal which the Court of Appeal relied on to nullify the decision of the Customary Court of Appeal is incompetent and same should be set aside. He felt that the judgment of the court below should also be set aside.

Learned counsel for the respondent at the on-set pointed it out that the essence of ground 5 and issue 2 distilled from it is that by virtue of section 233(1) of the 1979 Constitution as amended by Decree No. 107 of 1993, the Customary Court of Appeal lacks jurisdiction to hear and grant a motion to file additional grounds of appeal by two justices as it did on 18th February 1994.

Learned counsel submitted that the respondent is entitled to raise the issue touching on statutory constitutional provision in an appeal as he did. He felt that the applicability of a statutory provision to a case can be raised in an appeal for the first time even if it was not raised at the trial court. He cited S.G.B (Nig.) Ltd., v. S.G.F (1995) 3 NWLR (Pt. 324) 497 at 511; Heyting v. Duport (1961) 1 WLR 1192; Asante v. Taawia (1949) 65 TLR 105; Wong v. Beaumont Property Trust Ltd. (1965) 1 QB 173. He opined that a question as to whether the court from which an appeal lies has jurisdiction will be considered by the court to which an appeal lies even where both parties are reluctant to, or agree not to raise it; or even where the point is not raised in the notice of appeal.

Learned counsel pointed it out that the issue raised a constitutional provision and all courts of record are enjoined to give effect to same as they derive their jurisdiction from the constitution. He submitted that issue of jurisdiction can be raised for the first time at any stage of the proceedings including in the Supreme Court, viva voce or suo motu and without procedural hindrances. He referred to the case of Akegbejo v. Ataja (1998) 1 NWLR (Pt. 534) 459 at 468 – 469.

Learned counsel further submitted that it would not be in accordance with good reason to say that the action taken by the two judges of the Customary Court of Appeal cannot be challenged. He opined that to overlook the fact that the Customary Court of Appeal lacked jurisdiction to entertain the appeal on the amended grounds granted by two judges, is to make the decisions of that court on matters outside customary law final and absolute. He maintained that the issue of jurisdiction was properly raised and that the judgment of the court below should be upheld. Learned counsel for the respondent finally stressed the point that the Customary Court of Appeal lacked competence as the steps taken on 18th February, 1994 and thereafter went contrary to the provision of the constitution.

I expected the appellants to file a reply brief in answer to the salient points of law relating to the issue of jurisdiction as seriously canvassed in the respondent’s argument. To my dismay, none was filed.

At this point, it is apt to quote the provision of section 224 (1) of the 1979 Constitution for ease of reference as follows:

“224 (1) – An appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question or customary law and such other matters as may be prescribed by an Act of the National Assembly.”

As a follow up to the above, it is also desirable to quote the provision of section 248 of the 1979 constitution as amended by Decree 107 of 1993. It is as captured in section 283 of 1999 constitution. It goes as follows:

“283-For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Customary Court of Appeal of a State shall be duly constituted if it consists of at least three judges of that court.”

I need to state it here that it is no longer a moot point that question of jurisdiction is of absolute importance in adjudicatory process. It is the life wire in any adjudication. Where there is no jurisdiction to hear and determine a matter, everything done in such want of jurisdiction is a nullity. See Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539, Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) at 206.

Issue of jurisdiction is very paramount and crucial. It can be raised at any stage of the proceedings and even on appeal before this court. See State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33 at 54. National Bank v Shoyoye (1977) 5 SC 181. Issue of jurisdiction can be raised in any form by any of the parties or suo motu by the court. See Westminster Bank Ltd. V Ewards (1942) 1 All ER 470 at 474.

With the above in view, I am of the considered opinion that an appeal against the decision of a Customary Court of Appeal on the ground that it lacked jurisdiction for reason of inadequate Coram is cognisable before the court below, After all, this court pronounced with force in Madukolu v. Nkemdilim (1962) SCNLR 341; (1962) ANLR 58] that a court is only competent when:-

“(a) it is properly constituted with respect to the number and qualification of its members;

(b) the subject matter of the action is within its jurisdiction;

(c) the action is initiated by due process of law and

(d) any condition precedent to the exercise of its jurisdiction has been fulfilled.”

The above criteria for determining competence of a court have been restated by this court several times. See Sken Consult (Nig.) Ltd & Anor v. Godwin Ukey (1981) 1 SC. 6; Leedo Presidential Motel v. BON Ltd (1998) 10 NWLR (Pt. 570) 353. See also Timitimi v. Amabebe 14 WACA 370.

I wish to make a point here. It is that jurisdiction of a court is derived from its enabling statute. It is the statute which creates the court that defines its jurisdiction. As it pertains to the Customary Court of Appeal, its jurisdiction IS imbued by the provision of section 248 of the 1979 Constitution as amended by Decree No. 107 of 1993 and finally captured by section 283 of the 1999 Constitution. Therein the grundnorm mandates the Coram for the Customary Court of Appeal to be not less then three judges or that court for anything done under the constitution including determination of existing customary law. If it is otherwise, same is incompetent. It is clear that due composition of the court or appropriate Coram as mandated by section 248 of the 1979 constitution as amended by Decree 107 of 1993 is a condition precedent to determination of customary law under section 224 (1) of the 1979 Constitution.

Perhaps I need to further reiterate the fact here that when relevant sections of the constitution are being interpreted, there should be a liberal approach. It is sometimes referred to as broad interpretation or a global view. Such an approach often leads to a harmonious interpretation which will tally with reason. Refer to Rabiu v. The State (1980) 8-11 SC 130 at 151, 195. Related section of the constitution ought to be interpreted together. See Senator Abraham Adesanya v. The President of the Federal Republic and Anor (1981) 5 SC 112 at 131, 321.

A narrow interpretation of an earlier section of the constitution should not be made in isolation in such a manner that will make a later section moribund. This is the ploy the appellants are trying to create. They must be told that the intention of the makers of the constitution is that issue of Coram of the Customary Court of Appeal must be intact before one talks of the decision of that court touching upon customary law.

The decision of this court in Golok v. Diyalpwan (supra), based solely on the application of the provision of section 224 (l) of the 1979 Constitution remains intact. For an appeal from the Customary Court of Appeal to be competent in law, it must relate to question of customary law and / or such other matters as may be prescribed by an Act of the National Assembly. As at 1990 when this court made its pronouncement, the Coram of the Customary Court of Appeal was fluid. But as at 18th February, 1994, the Coram of the Customary Court of Appeal with two judges became deficient and incompetent sequel to the amendment of section 248 of the 1979 constitution by Decree l07 of 1993. Also, in Hirnor v. Yongo (supra), issue in respect of Coram was not in point.

From what happened on 18th February, 1994 it is manifest in the transcript record of appeal that there was no proper constitution of the Customary Court of Appeal on that day. Two judges of that court granted leave to file the additional grounds upon which the appeal thereat solely rested. There was no valid Notice of Appeal before that court. Every step taken thereafter remains null and void. Lord Denning pronounced in Macfoy v. U.B.A Ltd. (1962) AC 152 at 160 as follow:-

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

The court below was right in declaring the proceeding of the Customary Court of Appeal including its judgment a nullity. In conclusion, this appeal has no merit and it is hereby dismissed. The judgment of the court below is affirmed. The appellants shall pay N50,000.00 costs to the respondent.

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SC.205/2002

Mr Ignatius Anyanwu & 5 Ors V. Mr. Aloysius Uzowuaka (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, JSC. 

This action was commenced at the Port-Harcourt Judicial Division of the High Court of Rivers State on the 17th of January, 1996, When the Writ of Summons was Issued. The Plaintiffs sued for themselves and as representing the Sand and Gravel Dealers Union (Mile 3) Dump. They were the Respondents at the Court below and are the Appellants herein. The Defendants were sued for themselves and as representing Drivers and Loaders at Mile 3 Sand and Gravel Dump. They were the Appellants at the Court below and are the Respondents herein.

In their Statement of Claim dated and filed on the 12/3/96, the Plaintiffs claim against the Defendants jointly and severally N700,000.00 (Seven Hundred Thousand Naira) being and representing Special and General Damages for Trespass and wilful and unlawful Damage to building materials owned by the Plaintiffs left at their Dump in Mile 3 and which Dump the Respondents invaded. Particulars of Special Damages were given amounting to N454,000.00 and General Damages amounting to N246,000.00. They also claim Perpetual Injunction restraining the Defendants either by themselves, their servants, agents, privies or personal representatives from continuing to stay at the Mile 3 Dump of Sand and Gravel Dealers Union and/or building, constructing or planning to build stores and shades at the plaintiffs’ Dump at Mile 3.

The Statement of Defence and Counter-Claim was dated and filed on the 23/5/1996. In Paragraph 9 of the Counter-Claim, the Defendants claim:

‘(a) That they are joint owners of the parcel of Land allocated by the Bureau of Lands upon TOL, Temporary Occupation Licence.

(b) An amount of all rents collected from over 250 sheds at a rentage of N21, 000.00 per month.

(c) Perpetual Injunction restraining the Plaintiffs from alienating or developing the site without the approval of the other parties (Defendants).’

There was no Reply to the Counter-Claim.

The 1st Plaintiff was the sole witness for the Plaintiffs’ case at the Trial. Four witnesses including the 3rd Plaintiff testified tor the defence. In its Judgment on the 19/7/2000, the Plaintiffs Claim was allowed and N100,000.00 damages awarded against the Defendants for Trespass. The Claim for Special Damages was however refused on the ground that it was not specifically proved. Perpetual Injunction was also granted. The Court held that the Counter-Claim failed woefully and it was dismissed.

The Appeal to the Court below was allowed and the Judgment of the Trial Court set aside. The Counter-Claim for the joint ownership of the Land was allowed. The Claim for rents in respect of the 250 sheds was however refused.

The Plaintiffs/Appellants have therefore come on Appeal to this Court. Briefs of Arguments have been filed and exchanged. The Appellants Brief was prepared by D. O. Ezaga and it was filed on the 4/10/06. He also prepared the Appellants’ Reply Brief which was filed on the 5/11/07. The Respondents Brief prepared by H. E. Wabara (of blessed memory) was filed on the 15/12/06. Each of the parties identified only one Issue for Determination. The Issue is, whether from the Pleadings and evidence led at the Trial the Appellants Claim for Trespass and Injunction ought not to succeed?

On behalf of the Plaintiffs/Appellants, Learned Counsel proffered the following arguments. Counsel referred to the evidence of the D.W.1, Godwin Rufus Allison from the Rivers State Lands and Housing Bureau and D.W.3, Chief Ferdinand Ucheoma and argued that their evidence is the bests source of determining whether the initial licence in1980, was in favour of the sole Appellants Sand and Gravel Dealers Union or jointly in favour of Tipper Drivers Loaders and Sand and Gravel Dealers Union. Learned Counsel referred to the Temporary Occupation Licences from 1982-1996, a period of 14 years and pointed out that apart from those of 1983-1985, in the joint name, all others were in the name of the Sole Appellants Sand and Gravel Dealers Union. It was contended specifically that the D.W.1 admitted under cross-examination that all the receipts and licences from 1986-1996, were in the sole name of the Appellants’ union. Learned Counsel referred to the evidence of the D.W.3 as damaging to the case of the Respondents and pointed out that he was not treated as a hostile witness. Counsel pointed out that the issuance of receipts and licences in favour of the Respondents joint Tipper Drivers and Sand and Gravel Dealers Union started in 1983 and ended in 1985. He referred to the oral evidence of the D.W.1 in favour of the Respondents and submitted that documentary evidence is in law to be preferred to oral evidence. Learned Counsel referred to the evidence of the D.W.4 under cross-examination about the suit filed by the Appellants against the Rebisi Youths and the Injunction obtained thereat and submitted that the evidence further buttressed the case of the Plaintiffs exclusive licence to the Land in dispute.

On the question of the identity of the Land, Counsel referred to the Pleading in Paragraph 5 of the Statement of Defence and the Sketch Exhibit ‘Q’ and submitted that there was no Issue about the identity of the Land and relied on Otanma v.Youdubagha (2006) 1 S.C. (Pt. II) 23; (2006) 2 NWLR (Pt. 964) 337 at 354.

On behalf of the Defendants/Respondents, Learned Counsel submitted firstly that the Appellants as Plaintiffs woefully failed to prove that they were in exclusive possession or occupation of the Land in dispute at the time of the alleged Trespass and having failed to prove exclusive possession, the law cannot protect it. He relied on Oyadare v. Keji (2005).1 S.C. (Pt. 1) 19; (2005) 1 SCNJ 35 at 42 and Umesie v. Onuaguluchi(1995) 12 SCNJ 140. He drew our attention to Exhibit “S” copied at Page 32 of the record in respect of the joint application for the Land and submitted that no evidence was adduced to contradict it. It was his submission that from the totality of the evidence both parties were in joint occupation of the Land. The dimensions of the Land allegedly Trespassed upon was undefined and uncertain and for which therefore an Injunction cannot lie, Learned Counsel submitted. Reliance was placed on Adelusola v. Akinde (2004) 5 S.C. (Pt II) 71; (2004) 5 SCNJ 235 at 253. Learned Counsel also referred to Otanma v. Yaoudubagha (supra) and submitted that the Issue of the identity of the Land was also raised in Paragraph 5 of the Pleadings of both parties. On the same Issue of undefined and uncertain boundaries, Learned Counsel further referred to Fagunwa v. Adibi (2004) 7 S.C. (Pt. II) 99; (2004) 7 SCNJ 322 at 342 and Ezukwu v. Ukachukwu (2004) 7 S.C. (Pt. 1) 96; (2004) 7 SCNJ 189 at 216. He urged in conclusion that the Appeal be dismissed.

The above represents, in substance, the address of Counsel for the parties on the single Issue raised. Let me now deliberate on this Issue which is all about evaluation. As a starting point, it is necessary to restate some basic principles governing the evaluation of evidence. It Is settled principle of Law that the Trial Court, which alone has the unique privilege of seeing and hearing the witnesses testify, that has the primary function of appraising and ascribing probative value to the evidence presented by the parties, put the evidence on the imaginary scale of justice to determine the party in whose favour the balance tilts, make necessary findings of facts, apply the relevant law to those facts and come to the logical conclusion. It is to be noted that the summary or restatement of the evidence presented by the parties is not the same thing as evaluation of evidence See Onwuka v. Ediala(1989) 1 S.C. (Pt. II) 1; (1989)1 NWLR (Pt. 96) 182, lmah v.Okogbe (1993) 9 NWLR (Pt. 316) 159 at 177; Oladehin v. Continental Textile Mills Ltd.(1978) 2 S.C. 28;(1978) 2 S.C. (Reprint) 17; Chukwu v. Nneji (1990) 6 NWLR (Pt. 156) 363, A.G. Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 12 S.C. 1; (1989) 5 NWLR (Pt. 121) 255.

It is also settled principle of Law that an Appellate Court has no business in the evaluation of evidence because of its limitations of not seeing and hearing witnesses and would not therefore ordinarily interfere with findings and conclusion of a Trial Court. But where the Trial Court has failed in its duty of properly evaluating the evidence before it resulting in findings not supported by the evidence, such findings are perverse and the Appellate Court then has a duty to intervene by evaluating the evidence so as to make its own findings and draw its own conclusions.

However, the Appellate Court can only exercise that role of evaluation or re-evaluation if the exercise would not entail the assessment of credibility of witnesses and will be confined to making findings and drawing inferences and conclusions from admitted, proved or established facts. See: Woluchem v. Gudi (1981) 5 S.C. 291; (1981) 5 S.C. (Reprint) 178; Odona v. Ayoola (1984) 11 S.C. 72; Imah v. Okogbe (supra); Ogunleye v. Oni (1990) 4 S.C. 130; (1990) 2 MWLR (Pt. 135) 745.

I am satisfied that the Trial Courts assessment of the evidence did not entail credibility of witnesses. The result is that this Court, like the Court below, is in as vantage a position as the Trial Court to assess the totality of the oral and documentary evidence, make findings of facts and draw necessary inferences and conclusions. Although the Plaintiffs/Appellants did not Claim a declaration, their Claim in Trespass and Injunction is founded on their assertion that their Sand and Gravel Dealers Union are the exclusive owners of the Temporary Occupation Licences over the Land in dispute. The Defendants/Respondent, on the other hand, Claim that both themselves and the Plaintiffs/Appellants jointly belong to the umbrella, Tipper Drivers and Gravel Dealers Union and which joint body are the owners of the Temporary Occupation Licences over the Land In dispute. They denied that a separate Sand and Gravel Dealers Union or Tipper Drivers and Loaders Union ever existed.

The first and main question for determination therefore is, who is or has been Temporary Occupation Licensee of the Land in dispute. The evidence is oral and documentary. It is however clear from the general flow of evidence that almost every material assertion in the oral testimony of witnesses on this Issue of the licensee of the Land in dispute was supported by documentary evidence. I have earlier above made reference to the findings and conclusions of the two Courts below after their respective evaluation exercises. Let me also embark upon an evaluation of the oral and mass of documentary evidence, as I am entitled to do, to ascertain the party in whose favour it preponderates.

The 1st Plaintiff testifying as the only witness for the Plaintiffs case was, as at the 18/7/97, when he testified, the Chairman of the Plaintiffs Sand and Gravel Dealers Union, Mile 3, Diobu, Port-Harcourt. According to him, the Land was given to them in 1980, for temporary occupation by the Rivers State Land and Housing Ministry and they have since been paying to the Government of Rivers State temporary occupation fees on the Land evidenced in receipts of payments. He tendered 11 of such receipts which were admitted as Exhibits ‘A’ to ‘A10’. And for such payments they were also Issued Temporary Occupation Licences. 9 of such Licences were admitted in evidence as Exhibits ‘B’ to ‘B8’. According to him, the Defendant/ Respondents belong to the Drivers and Loaders Union at the Mile 3 Sand and Gravel Dump and that they (Defendants) belong to their parent Road Transport Workers Union and that they were given a piece of Land opposite the goat sellers in Mile 3. The Defendants realising that the Plaintiffs site was better than theirs decided to use the site with them upon payment of N10 per tipper driver and N5 per loader. After sometime, they (Defendants) refused to pay any more. They sued the Defendants/Respondents before the Rebisi Council of Chiefs who decided in favour of Plaintiffs/Appellants. The decision, according to the witness was in writing and it was admitted as Exhibit ‘C’.

The Defendants/Respondents did not comply with the decision in Exhibit ‘C’. The witness tendered receipts of other statutory payments which were evidenced in Exhibits ‘D’- ‘D2’ and ‘E’-‘E3’. According to the witness the Defendants/Respondents applied to the Port-Harcourt City Local Government to build temporary structures and Exhibit “F” was the Reply. They eventually Issue the Defendants with a Notice to Quit, Exhibit ‘G’. Upon receipt of the Notice to Quit, the Defendants/Respondents became violent in the wake of which properties were destroyed and some stolen. Receipts for the purchase of some of the properties allegedly destroyed and/or stolen were admitted as Exhibit ‘H’- ‘H15’. They Plaintiffs/Appellants then filed this action. He also gave some evidence of Special and General Damages for Trespass and Unlawful Damage. He denied the existence of a joint Tippers Drivers and Sand and Gravel Dealers Union. He denied any knowledge of an application in 1975, encompassing both the Plaintiffs and Defendants. He admitted that Chief F.S. Ucheoma, was once their Chairman. He said the Defendants had stayed with them from 1983, to the time he gave his testimony.

The D.W.1 was Godwin Rufus Allison from the Lands and Housing Bureau of the Governors Office. He said the Temporary Occupation Licences were Issued in respect of the Land in dispute to the Tipper Drivers and Sand and Gravel Dealers Union. He tendered the receipt for payment of Temporary Occupation Licence for 1983 and same was admitted as Exhibit ‘K’ while the Temporary Occupation Licence for the same year was admitted as Exhibit ‘L’. He also tendered the receipts for 1984, as Exhibit “M”. He tendered Exhibit ‘O’ being the receipt for 1985 and Exhibit “P” the Licence for 1985. According to him, he was the co-ordinator of all Temporary Occupation Licences. He admitted under cross-examination that all payments for licences by and receipts Issued for the years 1986 to 1996, were made to the Plaintiffs Sand and Gravel Dealers Union but insisted that all licences were Issued to the joint Tipper Drivers and Sand and Gravel Dealers Union.

The D.W.2, Princewill Umezuruike lwu Nwakamna was the City Engineer working for the Port-Harcourt City Local Government Council. He too referred to the Land in dispute as that over which the Tipper Drivers and Sand and Gravel Dealers Dump are joint licensees.

The D.W.3 was Chief F. S. Ucheoma. He testified to the effect that the Plaintiffs Sand and Gravel Dealers Union are the Exclusive Licensees to the Land in dispute. They brought in the Defendants to the Land who were paying rents to them. He said he was Chairman of the Sand and Gravel Dealers Union. He denied that the Tipper Drivers ever formed the same Union with them. Boniface Nwala was the D.W.4. He said the Plaintiffs and themselves are co-members of the Tipper Drivers and Sand and Gravel Dealers Union and that Chief F.S. Ucheoma was their Chairman in 1975. He tendered Exhibit ‘S’ signed by Chief E S. Ucheoma for the Tipper Drivers and Gravel Dealers Union. Under cross-examination he admitted knowledge about the suit filed by the Plaintiffs against Rebisi Youths who broke into part of the Land and against whom they obtained an Injunction.

The above represents, the substance of the evidence in support of the cases of the parties. In assessing their evidence I should be guided by the principle restated in Attorney General Bendel State v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 37) 547; (1986) 2 NSCC 954 at 965, that a document tendered in Court is the best proof of the contents of such document and no oral evidence will be allowed to discredit or contradict the contents thereof except in cases where fraud is pleaded. As I said earlier every material assertion in the oral testimony of witnesses was supported by some documentary evidence. Having regard to its rating as the best evidence let me examine, in some details, the documentary evidence before the Court on this Issue of whether it is the Tipper Drivers and Sand and Gravel Dealers Union that has been the Licensee of the Land in dispute.

The mass of documentary evidence includes Applications, payment receipts and invoices and Temporary Occupation Licences. In my view the Temporary Occupation Licence is the best proof of who was the Licensee of the Land in dispute in any particular year.

In support of the Plaintiffs/Appellants were tendered and admitted 9 Temporary Occupation Licences. These were Exhibits “B” for 1982; “B1” for 1986; ‘B2’ for 1987; ‘B3′ for 1988; “B4’ for 1989; ‘B5” for 1990; ‘B6’ for 1992; ‘B7’ for 1993; and ‘B8’ for 1996.

For the Defendants/Respondents, 3 Temporary Occupation Licences were tendered and admitted evidence. These were Exhibits.’L” for 1983; ‘M’ for 1984; and “P” for 1985. It is clear from the licences that the very first one for 1982, was In favour of the Appellants, the three folio wing years, i.e. 1983, 1984 and 1985, were in favour of the Respondents and the rest eight covering the period 1986 to 1996 when this action was filed in favour of the Appellants. Thus, from the point of view of licences Issued, the evidence is overwhelming in favour of the Appellants. On this Issue part of the evidence of the D.W. 1 from the Lands and Housing Bureau under cross-examination illuminating. At Page 140 of the record he said:-

“Payment was made by them in 1982………..it was the Sand and Gravel Dealers Union that made the payment in1982, Counsel for the Plaintiff applies to tender it. No objection. Admitted as Exhibit ‘Q’. ln1986, payment was made by the Sand and Gravel Dealers Union. In 1987, there was payment made by Sand and Gravel Dealers Union. In 1988, payment was made by Sand and Gravel Dealers Union. In 1989, payment was equally made by the Sand and Gravel Dealers Union and in 1990 the same was done. 1992, the same was done. 1993, Sand and Gravel Dealers Union made payment. The same in 1994 and also in 1996. As I Issued the receipts, I Issue corresponding licences. These licences emanate from our office and they cover from 1986 to 1996. When we Issue a licence we include the dimensions of the Land affected.”

The Learned Trial Judge while recording the above testimony noted thus: ‘(The witness checks through the records of his file in answering all the questions above).’ The Temporary Occupation Licences covered in the above testimony are those evidenced in Exhibits ‘B’- “B8.” The D.W 1 tried to explain away this overwhelming evidence in favour of the Plaintiffs Sand and Gravel Dealers Union by asserting that although the Licenses were Issued in favour of the Plaintiffs Sand and Gravel Dealers Union they were in fact Issued for the joint Tipper Drivers and Sand and Gravel Dealers Union.

It is my respectful view that, that piece of the evidence ought not to have been admitted and acted upon as it goes to no Issue, the settled principle of Law being that oral evidence cannot be allowed to add to, vary or contradict the contents of a document except where fraud in the making of the document is alleged. See Edueke v. Amola (1988) 2 NWLR (Pt.75) 128; Gurara Securities & Finance Ltd. v. T. I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29 at 47-48; N.I.D.B. v. De-Easy Life Electronics (1999)4 NWLR (Pt. 597) 7 at 8. And no fraud was alleged in the preparation of Exhibits “B’-“B8”. On the authority of Attorney-General Bendel State v. U.B.A, Ltd. (supra). Exhibits ‘B’-‘B8’ remain the best proof of their contents and no oral evidence should be allowed to add to, vary or contradict their contents. The result is that the oral evidence of the D.W 1 to the effect that although the Licences, Exhibits “B”-‘B8’, were Issued to the Plaintiffs Sand and Gravel Dealers Union, they were in fact Issue to and for the joint Tipper Drivers and Sand and Gravel Dealers Union is not a legal evidence and ought not to be acted upon.

Besides, licences were Issued over the Land in dispute in the joint names of Tipper Drivers, and Sand and Gravel Dealers Union for only three years, that is, 1983, 1984 and 1985. Beyond this period and for over ten years before the filing of this action the licences were consistently issued to the Plaintiffs Sand and Gravel Dealers Union. No explanation was given for this consistent trend in favour of the Plaintiffs/Appellants,

Besides the documentary evidence which I have analysed and commented upon there is a piece of the oral evidence of the D.W.4, Boniface Nwala under cross-examination which tends to support the case of the Plaintiffs/Appellants. At Page 149 of the record he said as follows:

‘I know that Rebisi Youths have broken into part of the Land, subject matter of this action. The youths did not succeed. I know that the Plaintiffs sued them in the High Court. I know that the Plaintiffs obtained an Injunction against the Rebisi Youths and that kept them out. We did not allow the Rebisi Youths to build anything.’

It was not explained by way of re-examination how the Plaintiffs/Appellants alone filed the suit and prosecuted it successfully against the Rebisi Youths. Although this fact was not specifically pleaded in the Statement of Claim, it goes to the main Issue of their Claim to being the exclusive Temporary Occupation Licensees of the Land in dispute. It is settled Law that the Court will presume the existence of a fact from the existence of one or more proved facts if such a presumption is irresistible or that there is no other reasonable presumption which fits the proved or admitted facts. See the case of High Grade Maritime Services Ltd. v. First Bank Ltd. (1991) 1 S.C. (Pt. II) 28; (1991) 1 NWLR (Pt. 167) 290 at 308; R v. Iregbu (1938) 4 WACA 32. The only reasonable presumption from the trend of the Temporary Occupation Licences Issued is that the Plaintiffs Sand and Gravel Dealers are the Exclusive Licenses of the Land in dispute.

Despite the above, the Court below went to a conclusion which, with respect is not supported by the totality of legal evidence on Record. At Pages 227-228 of the Record the Court said:

‘In their testimony, the 1st, 2nd and 4th Defendants witnesses through Exhibits F,S,K , L, M,N,O,P, tendered at the proceedings have shown that the Claim of the Plaintiffs to excessive possession of the Land in dispute is untrue. An objective appraisal of the testimony of all the parties before the Court below show that the Land obtained by the Union known as Dealers in Sand and Gravel was granted by the Bureau of Lands Port-Harcourt to the Union who at the terms operated as one Union prior to 1980. Despite the provocation of D.W.3, the testimony of the Bureau of Lands Office, D.W.4 is explicit and unassailable as to the true position of the Plaintiffs and Defendants before a dispute arose between the two parties .’

I do not think, with respect, that the findings arid conclusion in the above text of the Court of Appeal is sustainable having regard to the totality of the evidence on Record. As I stated earlier in this Judgment the Court below, just as this Court, is in as vantage a position as the Trial Court to evaluate the evidence, draw its own inferences, make such findings as are supported by the evidence and go to the logical conclusion. And the evaluation should of necessity entail an assessment of the evidence of both parties by placing same on that imaginary scale of Justice and determine the party in whose favour the balance tilts. And it must be manifest on the face of the Record that it was the evidence of both parties that was tested on the imaginary scale. In A. R.Mogaji & Ors. v. Madam Rabiatu Qdofin & Ors.(1978) 4 S.C. 91 at 93; (1978) 4 S.C. (Reprint) 53 at 65, this Court per

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SC. 167/2005

Gambo Musa V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Jos Division delivered on 6th July, 2006 in which the appellant’s appeal against his conviction and sentence to death by hanging by the trial High Court of Justice of Borno State holden at Maiduguri on 24th February, 1994 was affirmed.

At the trial court, the appellant was arraigned for the offence of culpable homicide punishable with death contrary section 221 (b) of the Panel Code. The charge reads as follows:-

“That you Gambo Musa on or about 25th of July, 1998 at Gwange 11 primary school in Gwange ward Maiduguri Metropolitan Area did commit culpable homicide punishable with death in that you caused the death of Umaru Alhaji Idrisa by doing an act to wit: you brought out a knife and stabbed Umaru Idris on the chest when you know or had reason to know that death was the probable and not only likely consequence of your act and thereby committed an offence punishable under section 221 (b) of the Code.”

As manifest on page I of the transcript record of appeal, the charge was read out to the appellant on 7th March, 1990.

He pleaded not guilty to the charge before Ogunbiyi, J. (as she then was). Thereafter, the prosecution called five witnesses and tendered four exhibits to buttress their case. The appellant testified in a bid to extricate himself. In the reserved judgment handed out by the learned trial judge on 24th February, 1994, the appellant was found guilty as charged. He was consequently convicted and sentenced to death by hanging as dictated by law.

The appellant felt unhappy with the stance of the learned trial judge. He appealed to the Court of Appeal (the court below) for short. Thereat, the appeal was carefully considered and in the judgment delivered on 6th July, 2006, the appeal was found to be devoid of merit. The court below dismissed the appeal of the appellant and affirmed his conviction and sentence to death by hanging as pronounced by the trial court.

The appellant, being aggrieved by the decision of the court below has, ex debito justitiae, appealed to this court. His Notice of Appeal, filed on 4th October, 2006, was accompanied by four grounds of appeal.

On 7th May, 2009 when the appeal was heard, learned counsel for the appellant adopted the brief of argument filed on 19th January, 2007 and urged that the appeal be allowed. On page 2 of the appellant’s brief of argument three issues distilled from his four grounds of appeal, as it should be, read as follows:-

“1. Whether the defence of self-defence was not made out by the appellant.

2. Whether the contradictions in the evidence of PW1 and PW2 were not so material as to render it unreliable to support conviction.
3. Whether the defence of provocation was not made out by the appellant.”

In the same fashion, on the stated date when the appeal was taken, learned counsel for the respondent adopted the respondent’s brief of argument filed on 28th of January, 2009 and urged that the appeal be dismissed. In a concise manner, two issues were decoded for a due determination of the appeal on page 3 of the respondent’s brief. They read as follows:-

“(1) Whether there were material contradictions in the evidence of PW1 and PW2 capable of rendering their evidence unreliable and incapable of supporting the conviction of the appellant.

(2) Whether the defences of provocation and self defence were available to the appellant in the circumstances of this case.”

I wish to state briefly the facts that are germane to the resolution of this appeal. The case narrated by PW1 and chest of the deceased, Umaru Alhaji Idrisa. Probable cause of death was due to loss of blood, as a result of the stab injury.

The appellant’s case was that he was provoked and that he acted in self-defence as well. He maintained that it was the deceased who first attacked him with a knife. It was in retaliation that he seized the knife and stabbed the deceased with it.

For the offence of culpable homicide punishable with death, the applicable law is section 221 (a) of the Penal Code. For ease of reference, it is reproduced as follows:-

“221 Except in circumstances mentioned in section 222 of this Penal Code, culpable homicide shall be punished with death-

(a) If the act by which the death is caused is done with the intention of causing death.”

It is now well settled that the ingredients for the offence of culpable homicide punishable with death which must be proved beyond reasonable doubt by the prosecution as variously pronounced by this court are:

1. That the death of a human being has actually taken place.
2. That such death was caused by the accused.
3. That the act was done with the intention of causing death.
4. That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act.

For the above stated requisite ingredients, see in particular Usman Kaza v. The State (2008) 7 NWLR (Pt. 1085) 125 at page 163 and also George v. The State (1993) 6 NWLR (Pt. 297) 41; (1993) 6 SCNJ 249. The bottom line is that if it is found that ‘the man died’ the death of the deceased must be directly traceable to the act of the accused person.

The 2nd issue couched by the appellant is similar in tune and purport to the 1st issue distilled by the respondent. It is whether there were material contradictions in the evidence of PW 1 and PW2 capable of rendering their evidence unreliable and incapable of supporting the conviction of the appellant. It is apt to treat this salient issue at this point in time.

On behalf of the appellant, it was submitted that the evidence of PW2 is self-contradictory and ought not to have been relied upon to convict the appellant. It was contended that the evidence of PW2 cannot be held to be the evidence of a credible witness but a fabrication and distortion of what actually happened on 25th July, 1998.

Learned counsel felt that the evidence of such a witness should be rejected. He cited the cases of Dogo v. The State (2001) 3 NWLR (Pt. 699) 192 and Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61.

Further, the appellant’s counsel observed that contradictions in the evidence of PW1 and PW2 are manifest. He cited Iseikwe v. The State (1991) 9 NWLR (Pt. 617) 46, Onah v. The State (1985) 3 NWLR (126) 236; Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538, Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101, Onubogu & Anr. V The State (1974) NSCC 358.

Learned counsel asserted that based on the contradictory evidence of PW1 and PW2, this issue should be resolved in favour of the appellant.

The learned counsel for the respondent submitted that there are no material contradictions in the evidence of PW1 and PW2. He observed that there is no dispute that the deceased died as a result of the act of the appellant as found by the trial court and affirmed by the court below.

Learned counsel observed that there is ample evidence on the record that it was the appellant who stabbed the deceased and that the appellant admitted same. He felt that the contradictions pinpointed are not material and that for contradictions to be material, they must go to the root of the charge before the court. Contradiction must touch an important element of what the prosecution needs to prove. He cited Dibie v. The State (2007) All FWLR (Pt. 363) 83 at 102; 110; Ahmed v. The State (2002) All FWLR (Pt. 90) 1358 at 1385.

Learned counsel felt that what the appellant’s counsel pointed out as contradictions are not contradictions but discrepancies which are not unexpected in trials of this nature. He observed that once the finding of fact is supported by evidence, an appellate court will not interfere with such finding unless it is shown to be perverse by the appellant. He referred to Saidu v. The State (1984) 4 S.C. 41; the State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348.

Learned counsel for the respondent felt that both the trial court and the court below made concurrent finding of fact that PW1 and PW2 were credible eye witnesses and that unless special circumstances are shown, this court will not disturb such findings of fact. He referred to the cases of Gbadamosi v. Governor of Oyo State (2006) All FWLR (Pt. 326) 224 at 233 -234; Baker Marine (Nig.) Ltd. v. Chevron (Nig.) Ltd. (2006) All FWLR (Pt. 326) 235 at 248; Dibie v. The State (supra). Learned counsel urged that the issue be resolved against the appellant.

The learned trial judge on page 36 of the transcript record of appeal at lines 25 – 31 observed the credibility of PW1 and PW2 and stated as follows:-

“In my view and from all indications and having regards to the manner of demeanour of the prosecution witnesses 1 and 2 who were eye witnesses to that which happened, I have no doubt whatsoever in my mind that they were credible witnesses of truth and who knew exactly what they were saying as that which happened and which they saw on the day of incident. For example the said witnesses were not shaken even under cross-examination but stood firm in their evidence.”

It has been the stance of this court that an appellate court should not ordinarily substitute its own views of fact for those of the trial court. See Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (Pt. 2) 66. An appellate court will not ordinarily interfere with findings of fact by a trial court except where wrongly applied to the circumstance of the case or conclusion reached was wrong or perverse: Nwosu v. Broad of Customs & Excise (1988) 5 NWLR (Pt. 93) 225; Nneji v. Chukwu (1996) 10 NWLR (Pt. 378) 265.Certainly, ascription of probative value to the evidence of witnesses is preeminently the business of the trial court which saw and heard the witnesses. An appeal court will not lightly interfere with same unless for compelling reason. See Ogbechi v. Onochie (1998) 1 NWLR (Pt. 470) 370.

The learned trial judge watched PW 1 and PW2 when they testified. They were found to be truthful witnesses on the material fact that it was the appellant who stabbed the deceased with a knife on the chest on the fateful day. The appellant admitted that much. I do not for one moment see how one can fault the learned trial judge when it was found that it was the act of stabbing done by the appellant that caused the deceased’s death as confirmed by DW5 the medical officer who gave his expert opinion.

It is necessary at this juncture to point out that contradiction in the evidence of the prosecution that will be fatal must be substantial. It is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradiction which did not affect the credibility of witnesses will be of no avail to the appellant.

Contradiction, to be worthy of note, must relate to the substance and indeed the vital ingredients of the offence charged. Trivial contradiction should not vitiate a trial. See Ankwa v. The State (1969) All NLR 133, Queen v. Iyande (1960) SCNLR 595; Omisade v. Queen v. Queen (1964) 1 All NLR 233 and Sele v. The State (1993) 1 NWLR (Pt. 269) 276; (1993) 1 SCNJ 15 at 22-23.

With regard to contradictions harped upon by the learned counsel for the appellant, the court below per R.D Muhammad, JCA had this to say at page 91 of the record of appeal:-

“In the instant case it is my considered opinion that there are no material contradictions in the testimonies of PW 1 and PW2 when their evidence is taken as a whole without any legal technicalities. The question as to whether the appellant has left the scene of crime after or before PW1 left to report to the deceased’s mother is not material to the issue at stake. What is at stake is who stabbed the deceased to death.”

PW1 and PW2 testified as eye witnesses that the appellant was the one who stabbed the deceased with a knife on the chest on the fateful day. I have earlier pointed it out that the learned trial judge who watched their demeanour believed them. The appellant himself confirmed same and put up the defences of provocation, self-defence and act done in a sudden fight which shall all be considered later on in this judgment.

The court below affirmed the finding of fact made by the learned trial judge. The finding of fact is supported by credible evidence on record and same is not perverse or wrongly applied. I shall not interfere with same. See the State v. Aibangbee (1998) 3 NWLR (Pt. 84) 548, Saidu v. The State (1982) 4 SC 41.

The above is still not the end of the matter on this point. The finding of fact in respect of the eye witness account of PW1 and PW2 as to who stabbed the deceased to death made by the trial court and the court below is a concurrent finding of fact. Again, this court will not interfere unless compelling reasons are shown which justify interference by the appellant. I dare say that no tenable reason has been shown to warrant interference by this court. I decline to interfere. See Seven-up Bottling Co. Ltd v. Adewale (2004) 4 NWLR (Pt. 862) 183 and Fajemirokun v. C.B. Nig. Ltd. (2009) 5 NWLR (Pt. 135) 588 at page 599, Dibie v. The State (supra).

The contention of the appellant on this issue, to say the least, is of no moment. In short, I resolve the issue against the appellant without any hesitation.The next issue for consideration is appellant’s issue 3. It is whether the defence of provocation was not made out by the appellant. The learned counsel for the appellant maintained that the appellant raised the defence of provocation in his evidence at the trial and in his statements to the police. He felt that the deceased’s conduct of abusing and stabbing the appellant was provocative in that it caused the appellant to temporarily lose control of his temper and action. He cited the cases of Uwaekweghinya v. The State (2005) 9 NWLR (pt. 930) 227; Shande v. The State (2005) 12 NWLR (Pt. 939) 301. He submitted that the sentence of death passed on the appellant ought to be set aside.

On his own part, learned counsel for the respondent submitted that the defence of provocation is not available to the appellant. He observed that the evidence on record shows that the appellant was never provoked by the deceased. He asserted that vide section 222(1) of the Penal Code, there must be grave and sudden provocation offered which deprived the appellant the power of self control and that the appellant must not have sought the provocation. He referred to section 38 of the Panel Code. He observed that the nature of the insult alleged by the appellant was not stated by him. He asserted that the trial court considered the evidence of PW1 and PW2 and believed them when they said there was no provocative word uttered by the deceased. He urged the court to hold that the defence of provocation was not available to the appellant.

In Black’s Law Dictionary, Sixth Edition at page 1225, provocation is defined as the act of inciting another to do a particular deed, that which arouses, moves, call forth, causes or occasions. Such conduct or actions on the part of one person towards another as to tend to arouse rage, resentment, or fury in the later against the former and thereby cause him to do some illegal act against or to relation to the person offering the provocation. It further goes on to say that ‘provocation which will reduce killing to manslaughter must be of such character as will, in the mind of an average reasonable man, stir resentment likely to cause violence, obscure reason, and lead to action from passion rather than judgment. There must be a state of passion without time to cool placing defendant beyond control of his reason. Provocation carries with it the idea of some physical aggression or some assault which suddenly arouses heat and passion in the person assaulted.’

The defence of provocation is traceable to section 222 (1) of the Penal Code which provides as follows:-

“Culpable homicide is not punishable with death if the offender whilst deprived of power of self control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

The utterance or action of the deceased to the accused must be such that would cause a reasonable person and actually caused the accused a sudden and temporary loss of self-control, so much so that for the moment he is not a master of his mind. See R. V Duffy (1949) 1 All E.R. 8932; Mancini v. D.P.P (1942) A.C. 19. The act of killing must have been done in the heat of passion and before there was time for temper to cool and it must be proportionate to the provocation. See R. V Blake (1942) WACA 118.

The learned trial judge considered the evidence of PW1 and PW2 and found that none of them said the deceased uttered any word to provoke the appellant to a state of rage before he stabbed the deceased with a knife on the chest as a result of which he died. She did not believe the appellant’s story that the deceased insulted him. In any event, the learned trial judge found that there was no mention by the appellant of the actual insultive words uttered by the deceased.

The court below agreed with the learned trial judge’s findings above and stated as follows:-

“As borne out by the records, the appellant, clearly, was not a victim of provocation which was grave and sudden as to deprive him of the power of self-control. The learned trial judge has carefully reviewed the evidence of PW 1 and PW2 vis-a-vis the defence put forward by the appellant. There is nothing perverse in the finding amply supported by the totality of the evidence adduced before the trial court. This court cannot interfere with the finding. I therefore hold that the defence of provocation is not available to the appellant.”

I am at one with the concurrent findings by the two courts below as depicted above. It is flawless. I cannot see how I can interfere with same under any guise. I should add that it was the appellant who sought for provocation if in fact there was any thing that got him irritated. The appellant did not say that anyone made him an armed sentry of the school. Vide section 38 of the Penal Code, provocation as defence was not available to the appellant in the prevailing circumstances of the matter.

This is the home truth and the appellant must be so told. In short, the defence of provocation, looked at from all angles, does not avail the appellant. The issue is hereby resolved against him.

The next issue relates to the appellant’s stance touching on self-defence. The learned counsel for the appellant felt that this defence is available to the appellant who raised it in his statements to the police and in his viva voce evidence at the trial court. He referred to section 222 (2) of the Penal Code and cited the cases of Ifejirika v. The State (1999) 3 NWLR (Pt. 593) 59, Mohamed v. The State (1997) 9 NWLR (Pt. 520) 169; Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641; Apogo v. The State (2006) 16 NWLR (Pt. 1002) 227.

On behalf of the respondent, learned counsel observed that the appellant did not act in good faith in the purported exercise of self-defence as the force used was out of proportion. He felt that the stabbing of the appellant was uncalled for and there was no evidence that at the time the appellant stabbed the deceased, he was under a reasonable apprehension of danger of his life as found by the trial court and confirmed by the court below. He urged that the issue be resolved against the appellant.

The plea of self defence is as provided in Section 222 (2) of the Panel Code. It goes thus:-

“Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of a person or property, exceeds the powers given to him by law and causes that death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for purpose of such defence.”

For the defence to avail an accused person, he must not be the aggressor in the first instance. He must have acted in good faith without premeditation and intention of doing more harm than necessary and the act of the deceased must be sufficient to excite in the accused a reasonable apprehension of imminent danger of death or grievous harm to justify using appropriate defence. See Akpan v. The State (1994) 9 NWLR (Pt. 368) 347.

From the evidence of PW1 and PW2 which the trial court believed, it was the appellant who caused the incident. He was the aggressor. The court below was of the same view. The appellant was the person on the offensive who used a sharp knife to stab the deceased on the chest. He did not act in good faith. He was the assailant; not the assailed.

The two courts below held that the defence of self defence is not available to the appellant. From the cold facts in the evidence on record, I cannot see my way clear in finding otherwise. This issue is resolved against the appellant; as well.

I still desire to consider the provision of Section 222(4) of the Panel Code so as not to leave any stone unturned in the determination of issues raised in this appeal. It provides as follows:-

“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.”

For the provision to come into play there must be a sudden fight in the heat of passion. There must be absence of premeditation. And the accused must not take undue advantage or act in a cruel or unusual manner. The three requirements must co-exist in my opinion.

PW1 and PW2 did not say there was a sudden fight. Appellant’s action of stabbing the deceased was premeditated. The appellant took undue advantage and acted in a cruel and unusual manner. The learned trial judge held ‘the view that the accused person, from all indications must have made up his story of a sudden quarrel.’ The court below said it could not fault the stance taken by the trial court. I also say that I am at one with the position taken by the two courts below.

The defences of provocation and self-defence were not rooted on firm ground. On behalf of the appellant, learned counsel, as is always the case in criminal trials, asserted that the prosecution did not prove its case against the appellant beyond reasonable doubt. This is akin to flying of a kite. The origin of the principle of law is traceable to the pronouncement of Lord Sankey, L.C. in Woolmington v. D.P.P (1935) A.C 462 at 481. He described it as the ‘golden thread’ in English Criminal Law that it is the duty of the prosecution in any criminal trial to prove its case beyond reasonable doubt. In Miller v. Minister of Pensions (1947) 2 All E.R 372, Denning, J. (as he than was) maintained that ‘it is not proof to the hilt.’ It does not mean proof beyond the shadow of doubt. He observed “that the law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed with the sentence’ of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short of that will suffice.”

I further add that Uwais, CJN in Nasiru v. The State (1999) NWLR (Pt. 589) 87 at 98 pronounced with force that ‘it is not proof beyond all iota of doubt.’ Let me observe that where all essential ingredients of the offence charged have been satisfactorily proved by the prosecution, as in the matter culminating in this appeal, the charge is proved beyond reasonable doubt. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at page 5234.

In conclusion, I find that this appeal is devoid of merit. It is hereby dismissed. The conviction and sentence of the appellant by the learned trial judge affirmed by the court below is hereby further confirmed.

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SC.323/2006

Osuji V. Ekeocha (2009)

LAWGLOBAL HUB Lead Judgment Report

O.O. ADEKEYE J.S.C.

The Appellant, Clifford Osuji as the 2nd Plaintiff in the High Court of Imo State, Owerri Judicial Division, sued the deceased father of the Respondent Ukachi Maxwell Ekeocha for the reliefs set out in paragraph 35 clauses (a-f) of the Further Amended Statement of claim as follows:-

(a) “Declaration of title to all that piece of land which is the home of Umuopara Nwanyiri or Nwanyiri family and called “Uhe Umuopara Nwanyiri” and which lies at Ekeonunwa Street, Owerri Amawon Compound, Owerri in Owerri Judicial Division and shown in Plaintiffs’ plan NO.E/GA/343/74.

b) A declaration that the defendant is the customary tenant of the Plaintiffs in the said land.

(c) A declaration that by denying the plaintiffs’ title in respect of the said land and behaving in a manner inconsistent with the proprietary interest of the Plaintiffs, the defendant has forfeited the customary tenancy.

(d) An order of court for the defendant and members of his family to move out of the building they occupy in the said land and relinquish possession of same to the Plaintiff.(sic)

(e) Alternatively an order of Court restraining the defendant to the occupation only of the storey building in the land shown in the Plaintiffs plan as “storey building by the defendant”.

(f) N1,000 (One Thousand Naira) being balance of the proceeds of the sale of the plaintiffs “1ST Ezi” land and which the 2nd Plaintiff gave the …. for safe keep”

The suit which was filed in the High Court of Justice Owerri Judicial Division in 1973 had Macaulay Osuji and Clifford Osuji as Plaintiffs and Ukachi Maxwell Ekeocha as Defendant. By the time the Plaintiffs went on appeal against the decision of the Trial Court Macaulay Osuji died leaving Clifford Osuji as the sole Respondent. Likewise Maxwell Ukachi Ekeocha was substituted with his son Nkemjika Ekeocha; the Respondent in the appeal on his death. Parties went to trial in the matter in 1992 on their further Amended Statement of claim and the Amended Statement of Defence. The Plaintiffs called four witnesses and the Defendant two witnesses. The case of the parties in brief is that the two Plaintiffs before the trial Court Macaulay and Clifford Osuji were the two male descendants of Umu Nwanyiri family of Amawon in Owerri Nchise in Owerri town, while the Defendant Maxwell Ukeachi Ekeocha belonged to the family of Ekeocha from Naze Olohe. His mother was one Ngbafor Nwanyiri a member of Umu Nwanyiri family of Amawon. She married Ekeocha from Naze and her offsprings by Owerri Native Law and Custom are referred to as Nwa-Nwa.

When her husband died, Ngbafor relocated to Owerri. When she died Maxwell Ekeocha now deceased and father of the present Respondent went to live with the family of Onyeneke Nkwocha Ekezie. He later moved from there to live with the wife of Igwe Opara Nwanyiri. The two Plaintiffs/Appellants were then very young and at school when Igwe Opara Nwanyini died without a male issue. They both were the only surviving male members of the Opara Nwanyiri family. They automatically inherited the “ORE Umunwanyiri, the area now in. dispute according to Owerri Native Law and Custom. The Respondent’s father,- deceased Maxwell Ekeocha was then an adult, and he became the closest relation of the Appellants. The property in dispute the ORE UMUOP ARA NWANYIRI” had been the permanent homestead of the Nwayiri family since the village of Amawon settled in that part of Owerri for over one hundred years. No. 17 Ekeonunwa is the property now located on the land in dispute. Maxwell Ekeocha in his lifetime had access to the land through Igwe Nwanyiri, and when the Igwe died with no male issue surviving him he was still living in the ORE NWANYIRI. He erected a storey house and a bungalow on the land. The grouse of the Appellant is that Maxwell Ekeocha is not a member of the Opara Nwanyiri family and cannot lay any claim to any property belonging to the family. His mother a member of the Umu Nwanyiri family married outside. She decided to reside in the parent’s house – but her children are Nwa-Nwa who are not entitled to the property of their maternal grandfather. Furthermore none of the brothers of Maxwell intermeddled with the Appellants’ family property. They bought and developed their property outside the “ORE UMUOPARA NWANYIRI”. The Appellants contended that he took advantage of their tender age to infiltrate and build on their family property. The Appellants claimed UMUOPARA NWAYIRI by way of inheritance to which they were entitled to exclusive possession according to Owerri Native Law and Custom. They became the only surviving elders in the family. The Respondent claimed the disputed property through his father Maxwell. He claimed to be a part of the family. His father Maxwell developed the “Obi” of the family into a proper family house. He built on the disputed land and did everything to prevent the Appellants from erecting their houses on the land. He sold the Isi-Ezi another area of the family property together with Clifford Osuji though he refused to return N1000 out of the proceeds of sale. He regarded the amount as his share. Maxwell also laid claim to exclusive ownership of ORE UMUOPARA NWANYIRI. He was selling and alienating landed properties of Opara Nwanyiri family. The Appellants referred the matter to a Native Arbitration. Maxwell, the Respondent’s father made out a case of joint ownership of the family property before a Native arbitration headed by Eze Njemanze. He later accepted the decision of the Arbitration that he was to return the land in dispute to the Appellants, while he requested to be allowed to keep the storey building on the land in dispute. He later reneged on his words, adhered to his claim of joint family property and continued to manifest his bid to disinherit the Appellants and their section of the family. He expended money to reconstruct the” family property. The Respondent claimed the three houses built on ORE UMUOPARANW ANYIRI by his father. Maxwell was made an “OHA”, he became head of the family. In the claim before the court, the Appellants described the Respondent’s family as a customary tenant. Since all his activities on the disputed land were against the interests of the Appellants, he was to forfeit his right to occupy the disputed property. The place in dispute was No. 17, Ekeonunwa Street where the Respondent’s father had already erected three buildings. The Respondent claimed that his father was buried there. The Respondent claimed to be a descendant of Umu Opara Nwanyiri like the Appellants. There was evidence that no other members of Ekeocha clan erected houses on “ORE OPARA NWANYIRI”. They built their respective houses outside the area. Before the Trial Court, while the Plaintiffs/Appellants claimed exclusive ownership of the disputed property, the Defendant/Respondent claimed ownership of the property In common with the plaintiffs/appellants. In his considered judgment the learned trial judge made orders as follows that:-

(1) “The property situate at 17, Ekuonunwa Street and known as Ohe Opara Nwanyiri is joint property of the defendant and the plaintiffs.

(2) The defendant is not a tenant of the Plaintiffs.

(3) As there are 3 buildings on the land erected by defendants ostensibly for himself, the court directs and orders that all the houses belong to the Plaintiffs and the Defendant

Accordingly, they shall share the property into 3 with the defendant taking first as he represents the former head of the family”.

Vide pages 119 – 121 of the record. Dissatisfied with the judgment of the Trial Court, the Defendant as Appellant appealed to the court of Appeal, Port Harcourt Division. In the judgment delivered on the 18th of January, 2001 the Court of Appeal held that:-

“The claim of exclusive ownership, was indeed the main claim of the respondents before the lower court and once that failed, the whole case must fail. The trial judge held specifically in his judgment as follows:-

“If the plaintiffs wish to assert and prove exclusive ownership, they must prove the declaration sought not (sic) by a mere flimsy evidence but a heightened and sustainable proof on the preponderance of evidence.”

The Court found that there was no merit in the appeal, allowed the appeal set aside the judgment of the Trial Court.

The Appellant was aggrieved by the judgment of the Lower Court; he subsequently filed an appeal in this Court.

Briefs were filed and exchanged by the parties. At the hearing of the appeal on 27/4/09, the Appellant adopted and relied on the Appellant’s brief filed on 8/2/07.

In this brief the appellant settled six issues for determination from the nine grounds of Appeal. They are:-

(1) “Whether there is nothing in the pleadings and evidence of the Appellant and Respondent, to support the decision that the property in dispute is the joint family property of the Appellant and Respondent.

(2) Whether the Court below, was right in law, to hold that the Appellant’s Claim of exclusive ownership, was indeed the main claim of the appellant before the trial Court and once that failed, his whole case fails.

(3) Whether the Court below, was right in law, to reverse the findings of fact of the trial Court, that the disputed property, is jointly owned family property of the Appellant and the Respondent, without the below, Court showing that the finding was perverse.

(4) Whether the Court below, misconceived the case and thereby arrived at a wrong conclusion, in its judgment.

(5) Whether the Court below, was right in law, to set aside the judgment of the trial court, which granted less and not more than the Appellant’s relief of exclusive ownership.

(6) Whether the Hon. (sic) Supreme Court, as a Court of last resort, is not competent in law, to resolve this dispute between members of the same family which may render anyone of them homeless.”

In the Respondent’s brief filed on 20/10/08 which the Respondent adopted and relied upon for the purpose of this appeal, three issues were ably distilled for determination as follows;-

(1) “Whether the Court of Appeal was wrong in holding that there was nothing in the pleadings of the Plaintiffs/Appellants to suggest joint ownership of the property in dispute.

(2) Whether the Court of Appeal was wrong in setting aside the Order for the sharing of the three buildings belonging to the Defendant/Respondent there being no such relief before the “trial Court.

(3) Whether the Plaintiff/Appellants proved their case on the preponderance of evidence.”

The Appellant filed a motion on 16/3/09 for an order enlarging the time for him to file a Reply Brief as time granted to him by the Rules of Court had since expired. The application was heard on 27/4/09, and this Court granted the order as prayed. The Reply Brief was equally filed and served that day.

On a close scrutiny of the Respondent’s brief I observed that he did not file a Notice of Preliminary objection or raise any fresh issue of law for argument in the Respondent’s brief. All the issues covered by the Reply Brief were already argued in the appellant’s brief. This leads to the question what is the essence of a reply brief A reply brief is necessary when a new issue of law or arguments raised in an objection in the Respondent’s brief not covered in the Appellant’s brief calls for a reply. An appellant in such peculiar situation ought to file a reply brief in the interest of his case. Argument is restricted to the new points arising. Where the Respondent has not introduced a new issue or point of law a reply brief is most unnecessary. Failure to file a reply brief can only be fatal to the case of the Appellant if the issues raised in the Respondent’s Brief are weighty, substantial, competent and relevant in law. The Respondent in this appeal did not introduce any new issue of law in the respondent’s brief while the issues formulated for argument by both parties were similar.

The Appellant used the Reply Brief in this case as an opportunity to elaborate on the issues already argued in the Appellant’s Brief. A reply brief is not to afford the appellant another bite at the cherry. It is not proper to use the reply brief to extend the scope of argument and submission in the Appellant’s brief

Edjerode v. Ikine (2001) SCNJ 184

Okonji v. Njokanma (1999) 12 SCNJ 259

Akinrinade v. Lawal (1996) 2 NWLR pt 429 pg 218

Umeji v. A-G Imo State (1995) 4 NWLR pt 391 552

Nwali v. State (1991) 3 NWLR pt 182 pg 663

PopooIa v. Adeyemi (1992) 8 NWLR pt.257 pg 1

Shuabu v. Muihodu (1993) 3 NWLR pt 254 pg 148

ACB PLC. V. Apugo (1995) 6 NWLR pt 399 pg 65

FRN v. Obegolu (2006) 18 NWLR pt 1010

Issue one

It is the argument and submission of the learned counsel for the Appellant that the Appellant and Respondent pleaded enough facts and gave undiluted oral evidence upon which the Trial court predicated the above stated judgment, which was wrongly upturned by the court of Appeal. The Appellant pleaded facts of joint family ownership of the property in dispute in paragraphs 3,7,8,9,14,18,21,24,28,30,31,33,34 and 35(e) of his Further Amended Statement of claim. The Defendant/Respondent in the amended statement of defence pleaded joint ownership of the family property in dispute in paragraphs 2, 3,4,6,8,9,10,11,14,15, and 18. The learned counsel came to the conclusion based on the summary of evidence from the foregoing paragraphs of the Further Amended Statement of Defence that

(a) Both the Appellant and defendant agreed that the “OHE UMUOPARA NWANYIRI” – The land in dispute belongs to members of Umuopara Nwanyiri family to which they are members.

(b) By their pleadings both parties asserted that they reside at No. 17, Ekeonunwa Street, Owerri otherwise known as “OHE UMUOPARA NWANYIRI”.

(c) The parties agreed that the land in dispute is No. 17 Ekeonunwa Street, Owerri otherwise called “Ohe Opara Nwanyiri”.

(d) Both parties agreed that they have their respective buildings on the land in dispute i.e No. 17, Ekeonunwa Street, Owerri, otherwise known as “Ohe Opara Nwanyiri”.

The judgment of Court was property predicated in law upon the parties pleadings, evidence and admissions.

The evidence and admissions of the parties are not at variance with their pleadings that the property in dispute is their joint family property. Any judgment of this Court which does not affirm the findings of the Trial Court will give away the buildings of the parties in their jointly owned homestead as well as render one homeless. The Court of Appeal understood the relationship of the parties to the family property when it encouraged the parties to settle their differences amicably within the family circle- Even the alternative claim of the Appellant asking that the Respondent be restrained to the occupation only of a part of the land in dispute namely the storey building as prayed in paragraph 35(e) of the Further Amended Statement of claim the Appellants were conceding joint ownership of the land in dispute with the Respondent. The learned counsel further submitted that the Appellants fought at the Trial Court on two planks namely:-

(a) Claim or Relief based on exclusive ownership of the land in dispute.

(b) The Alternative claim or Relief based on joint ownership.

The third arm of the order of the Lower Court was made in line with Order 47 rule 1 of the Miscellaneous provisions of Imo state of Nigeria, High Court Law (Amendment) Edict 1988. Moreover the Court is enjoined to grant in the exercise of its inherent power reliefs which in the circumstance of the case a party is entitled to. He made reference to the case of FATB LTD. v. Ezegbu & Anor. (1993) 7 NLR pg 1 at pg 3 Ratio 2. The learned counsel finally contended that since the land in dispute are jointly owned by the Plaintiffs and the Defendant; the buildings on the land are equally jointly owned by the Plaintiffs under the doctrine of Quid,quic Plantateur solo solo cedit. He cited the cases:-

Francis v. Ibitoye (1936)13 NLR 11

Ezeanirors v. Njidike (1965) NMLR 95

The learned Trial Judge has powers to make consequential orders backed up by the parties’ pleadings evidence and admissions. He referred to the case of Odukwe v. Ogunbiyi (1998) 8 NWLR pt 561 pg 339 at 358 paras C-D and paras E-G Ratio 10.

The learned counsel urged the Court to resolve issue NO.1 in favour of the Appellant.

The learned counsel for the Respondent by way of reply to the above submission explained that the pleadings and oral evidence of the Appellants are that they were descendants of Umuawanyiri family of Owerri Nchise, while the Respondent is the grandson of one Mgbafor who was married to a man from Naze. The Appellants saw the. Respondent as a stranger who live with the family and as a customary tenant who had lost his right of possession by challenging his landlord on the disputed land. The Respondent maintained that he is a member of the Umunwanyiri family whose father had at a point in time been the head of the family before he died.

The Appellants did not at anytime claim at the Trial court that the land in dispute was jointly owned by them and that the Respondent was from a completely different village called Naze. The Respondent was seen as a Nwa-Nwa and a customary tenant whose continued stay in the family was subject to good behaviour.

The Court of Appeal had rightly observed that the Lower Court had no jurisdiction to make a new case based on joint ownership of the family property for either of the parties outside their pleadings and evidence in Court. The learned counsel urged this Court to affirm the judgment of the lower Court and hold that the learned. Trial Judge was wrong in holding that the family property was jointly owned by both parties, and resolve this issue in favour of the Respondent.

A careful perusal of the argument and submission of the learned counsel for the appellant demonstrate a clear misunderstanding of the case of the Appellant as Plaintiff before the Trial Court and the reasoning and conclusion of the learned Trial Judge. The crux of the case of the Appellant before the Trial Court are for:-

(a) Declaration of title to all that piece of land which is the home of the Umuopara Nwanyiri or Nwanyiri family and called “Uhe Umuopara Nwanyiri” and which lies at Ekeonunwa Street, Owerri in Amawon compound, Owerri in Owerri Judicial Division and shown in Plaintiffs plan No. E/GA 343/74.

(b) Declaration that the Defendant/Respondent is the customary tenant of the Plaintiffs/Respondent in the disputed land.

(c) Declaration that by denying the Plaintiffs/Appellants title in respect of the disputed land and behaving in a manner inconsistent with the proprietary interest of the plaintiffs the Defendant has forfeited as the customary tenancy.

(d) An order of Court of the Defendant and members to move out of the building they occupy on the land and relinquish possession of same to the Plaintiffs.

ALTERNATIVELY an order of Court restraining the Defendant to the occupation only of the storey building on the land shown in the plaintiffs plan as storey building by the Defendant.

(e) It is not in doubt from the evidence on printed record and particularly going by the judgment that the learned Trial Judge gave a critical analysis and proper appraisal to the case of each respective party, The pieces of evidence which he joined together to find joint ownership of the landed property proved are the one he used to conclude that the plaintiff/appellants claim to exclusive ownership of the disputed property was not established on the preponderance of evidence. The learned trial judge said in his judgment on pg 119 of the Record paragraphs 25-31 that-

“It would seem that a claim of exclusive ownership on the Plaintiffs part only arises when the Defendant’s father acted in a manner that tended to show that he alone had exclusive ownership of the place but when the Defendant’s father was in a right mood and regarded the Plaintiffs as younger close relations, all claims of exclusive rights are forgotten.

This description seems to be the hall mark of the nature of the case of the plaintiffs.

I find as a fact that none of the parties is a landlord or tenant to the other. The orders this Court will make are that:-

(1) The property situate at 17 Ekeonunwa Street and known as Ohe Opara Nwanyiri is joint property of the Defendant and the plaintiffs

(2) The Defendant is not a tenant of the Plaintiffs.

(3) As there are 3 buildings on the land created by Defendants ostensibly for himself, the Court directs and orders that all the houses belong to the Plaintiffs and the Defendant. Accordingly they shall share the property into 3 with the Defendant taking first as he represents the former head of family.”

On gleaning through the findings and conclusion and the so called orders I find them to be contradictory to the reliefs sought by the Plaintiffs/Appellants. The orders do not flow from the conclusion of the Court as consequential orders. The Lower Court had rightly and properly interfered with the judgment to set it aside. By making the third order for distribution the Trial Court had obviously descended into the arena of conflict and granted a relief not asked for by any of the parties. The issue of joint ownership was canvassed by the Respondent as a defence and not by the. Appellants as Plaintiffs. The learned Trial Court cannot predicate orders in the judgment on it as the Respondent did not file a counter-claim.

The Appellants as Plaintiffs before the Trial Court regarded the claim of the Respondent to joint ownership as inconsistent with the proprietary interests of the Appellants and thereby requested the Trial court to forfeit his interest as a customary tenant.

The Appellant as Plaintiff referred to the Respondent as a customary tenant on the disputed land No.17, Ekeonunwa Street, Owerri. According to the evidence Respondent is an Nwa-Nwa the child of a daughter who married out while it is unacceptable under Owerri Native Law and Custom for him to lay claim to the property of his maternal grandfather. It is only when a claim of the Appellant succeeds before the Trial Court, that the granting of the reliefs go along with the success.

The Trial court was in error in the nature of the reliefs made particularly following the pronouncement made by the learned Trial Judge that the Appellant failed to adduce evidence in support of his claim.

By introducing and making an elaborate issue in respect of joint ownership the learned counsel has now made out a case different from the Plaintiff/appellant’s case before the Trial court. This runs contrary to the practice and procedure of our civil jurisprudence that you cannot make a case on appeal different to your case before the Trial Court. Neither is a counselor litigant permitted to approbate and reprobate in the conduct of a case-

Ezoma v. A.G. Bendel State (1986) 4 NWLR pt 36 pg 448 at pg 462 .

Kayode v. Odutola (2001) 11 NWLR pt 725 pg 659

An appeal is a continuation of the case before the Trial Court. I am equally duty bound to define the nature of declaratory reliefs particularly in relation to title to land. The purpose of a declaratory relief sought from Court is essentially an equitable relief, in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce an existing state of affairs in law in his favour as may be discernable from the averments in the statement of claim. A declaratory relief is not confined to cases where there is a complete or subsisting cause of action but may be employed in all cases where the Plaintiff conceives he has a right.

Adigun v. A-G Oyo State (1987) 1 NWLR pt 53, pg 678

Igbokwe v. Udobi (1992) 3 NWLR pt 228 pg 214

Dantata v. Mohammed (2007) 7 NWLR pt 664 pg 176.

In a case for declaration of title to land, the onus is on the plaintiff to establish his claim with credible and acceptable evidence based on the strength of his own case and not upon the weakness of the case of the Defendant. The Plaintiff must therefore satisfy the court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought. The reasoning and conclusion of the Trial Court clearly show that the Appellants case failed to meet up with this requirement.

The Court in the circumstance could not exercise its discretion to grant the declaratory reliefs in their favour.

Adu v. Gbadamosi (2009) 6 NWLR pt 1136 pg 110

Ogun v. Akinyelu (2004) 18 NWLR pt 905 pg 362

Oluwi v. Eniola (1967) NMLR pg 339

The learned counsel for the Appellant has failed to convince this Court that the evidence before Trial Court was

predominantly in favour of joint ownership of the land in dispute. Issue one is resolved in favour of the Respondent.

Issue Two

“Whether the Court below was right in law to hold that the Appellants claim of exclusive ownership was indeed the main claim of the Appellant before the Trial Court and once that failed, his whole case fails”.

The learned counsel submitted that it is trite law in civil actions, that where there is an alternative claim, the Plaintiff can rely either on the main claim or the alternative claim where the main claim fails. Whichever way the Court is not shut out but will consider the alternative claim and the Plaintiff can succeed thereon. By so doing it is proper for a party to an action to include in his pleadings two or more inconsistent sets of facts and claim reliefs there under in the alternative. The learned counsel submitted that the Appeal Court misconceived the nature of the case before the Trial Court, and what it is called upon to decide, it had arrived at a wrong conclusion and this has occasioned a miscarriage of justice against the Appellant. He cited cases in support of his submission as follows:-

Ibekwendu v. Ike (1993) 8 NWLR 76 at pg. 78 Ratio 5

SCE v. Odenewu (1965) 2 All NLR pg. 135

U.B.A. V. Mustapha (2004) 1 NWLR pt 855 pg 443 at pg 455

U.B.N v. Penny-Mart Ltd. (1992) 5 NWLR pt 240 pg 228

Nwangwa v. Ubani (1995) 10 NWLR pt 526 pg 559

Agidigbi v. Agidigbi (1997) 6 NWLR pt 454 pg 17.

Yesufu v. Kupper Int. N.V (1996) 5 NWLR pt 446 pg 17

M.V. Caroline Maersk v. Nokoy Invest Lt. (2002) 12 NWLR pt 782 pg 472.

The learned counsel urged this Court to resolve this issue in favour of the Appellant and set aside the judgment of the Court of Appeal.

The learned counsel for the Respondent replied in his submission that the reliefs sought by the Plaintiffs/appellant in their further amended statement of claim are those shown on page 53 of the Record, particularly paragraph 35 (a-f) therefore. In their oral testimony the Plaintiffs/Appellant never sought any relief in the nature of sharing the buildings into three and in any order at all. The learned Trial Judge was in error when he granted to the Plaintiffs/appellants what they never claimed before the Court in their pleadings or oral evidence in support before the court. The decision of the Trial Court was therefore perverse and the Court of Appeal had jurisdiction to set it aside. The learned counsel canvassed that this issue be resolved in favour of the Respondent.

This Court does not have to belabour this issue as the argument and submission of the learned counsel for the Appellant which is glaring on this issue is self defeating. I shall quote from two cases cited by the learned counsel as follows:-

S.C.E.I v. Odunewu (1965)2 All NLR 135 that

“it is submitted that where a trial court is of the opinion that it may be wrong in its decision on the principal claim of a party, it is desirable that it considers the alternative claim of the party. The reason for such step is that the Court of Appeal will have on record the finding and opinion of the trial court on the alternative relief”

In the case of U.B.A PLC V. Mustapha (2004) 1 NWLR pt 855 pg 443 Ext.455. Ratio 15 the learned counsel quoted.

“it is trite law that where a Plaintiff on a set of facts asks for a relief and a second relief in the alternative to the first, it is for the court to decide on the facts and in principle whether the grant of the second relief as a further relief will not amount to double compensation for the compensation for the same cause of action, in which case the further or alternative relief should not be granted. In other words, it is only where the court finds that it could not for any reason grant the principal claim, that it would consider the alternative claim”

The learned counsel concluded that the court granted the alternative claim because it did not grant the main claim. The learned trial judge did not give due consideration to the alternative claim anywhere in his judgment. His order for the sharing of the three buildings on the disputed land as being joint property of the family does not flow from the alternative claim of the Plaintiffs which reads.

(e) “Alternatively an Order of Court restraining the Defendant to the occupation only of the storey building in the land shown in the Plaintiffs plan as storey building by the Defendant”

The order made by the trial court did not coincide with the alternative order claimed by the Plaintiffs/Appellant. The scenario for alternative relief is that the claimant or party to an action will include in his pleadings two or more inconsistent sets of facts and claim relief thereunder in the alternative. An alternative award there from is one that can be made instead of another. It is not an additional award. Where a Plaintiff sets up two or more inconsistent sets of material facts and claims relief on each of them in the alternative, he will be granted such relief as the sets of facts he established would entitle him, so only two or more alternative relief will be granted”,

M.V. Caroline Marersk v. Nokoy Investment Ltd (2002) 12 NWLR (pt 782) pg 472.

Yesufu v. Kupper Int. N.V (1992) 5 NWLR pt 446 pg 17.

N.S.M Co Ltd v. N.B.C (1967) 1 NMLR 35.

Mercantile Bank of (Nig) Ltd v. Adalma Tanker & Bunkering Service Ltd (1990) 5 NWLR pt 153 pg 747.

The sum total of the claim of the Plaintiff/Appellant before the trial court envisaged a salvation where the claim for title and more particularly for exclusive ownership of the disputed land succeeded, he could concede one of the storey’s building on the land to the Respondent as specified in the alternative claim. This issue is resolved in favour of the Respondent.

Issue Three

“Whether the court below was right in law, to reverse the findings of fact of the trial court, that the disputed property is jointly owned family property of the Appellant and the Respondent without the court below showing that the finding was perverse”

The learned counsel for the Appellant submitted on this issue that parties are bound by their pleadings and the findings of fact of a trial court which are predicated on the parties pleadings and evidence as in the instant case, cannot be said he have been perversely made and cannot be highly disturbed, as was wrongly done by the Court of Appeal. The learned counsel stated that findings of fact will be perverse when:-

(a) They are speculative and not based on any evidence

(b) Where the court took into account matters which it ought not to have taken into account or where the court shut its eyes to the obvious

The learned counsel cited cases in support of the foregoing

Atolagbe v. Shorun (1988) 1 NWLR pt 2 pg 360

Adimora v. Ajufo {1988} 1 NWLR pt 80 pg 1

The judgment of the lower court demonstrated proper understanding and consideration of the issues raised by the parties. This court is urged to resolve issue three in favour of the Appellant. The learned counsel for the Respondent submitted that the onus is on the Appellant to prove his claims on the preponderance of evidence. The learned trial judge found that there was no sufficient evidence to establish exclusive ownership for the Plaintiffs/Appellants the proper order would have been that of the dismissal of the case of the Plaintiffs/Appellants and not to make orders that were neither pleaded nor given in evidence. This court is urged to affirm the judgment of the lower court and set aside that of the trial court, and resolve this issue in favour of the Respondent.

As rightly observed by the learned counsel for the Appellant civil suits are decided on the balance of probabilities, on the preponderance of evidence. This connotes that the totality of the evidence of both parties is bound to be taken into account and appraised so as to determine which evidence has weight and which has none. The credible evidence led by both parties is thereafter weighed on an imaginary judicial scale by the trial court in order to see which party’s evidence has more weight or preponderates and it is that party who succeeds in the case. The instant case, is a case for declaration of title whereupon the Plaintiff/Appellant must succeed on the strength of his case and not rely on the weakness in the evidence of the Defendant/Respondent. The Plaintiff/Appellant has the onus of adducing credible and acceptable evidence in support of his case for declaration of title.

Woluchem v. Gudi (1981) 5 SC pg 291

Odutola v. Aileru (1985) 1 NWLR pt 1 pg 92

Magaji v. Odofin (1978) 4 SC 91

Balogun v. Akanji (1988) 1 NWLR pt 70 pg 301

Elias v. Omo Bare (1982) 5 SC 25

Odulaja v. Haddad (1973) 11 SC pg 357

Akibu v. Opaleye (1974) 11 SC pg 139

In this case further there are two competing claims before the trial court, the court had a duty to consider both assertions carefully and decide on the balance of probabilities which of the assertions the court would accept. On a careful perusal and analysis, the judgment of the Trial Court, demonstrated a dispassionate appraisal of the evidence adduced in support of the claims, against the background of the pleadings of the parties. In his findings of fact and final determination he found that the Plaintiffs/Appellant failed to succeed in their claim. ‘After appraisal of facts and ascribing of probative value to them the court arrived at the right conclusion but proceeded thereafter to make a wrong order. In respect of the claim of the Plaintiffs/Appellant the learned trial judge held:-

“If the Plaintiffs wish to assert and prove exclusive ownership, they must prove the declaration sought not, but (sic) a mere flimsy evidence but a heightened and sustainable proof or the preponderance of evidence, land case unlike most civil cases demands a fairly greater degree of proof in that what is involved is property to which people in this part of the world attach great importance”. The learned trial judge supported this contention with the case of Alhaji Adebola Elias v. Chief T. Omo Bare (1982) 5 SC 25 at pg 47. The order made by the trial judge after finding that the Plaintiffs/Appellants did not prove the case on the preponderance of evidence went ahead to grant ownership of the disputed property jointly to the parties. The conclusion reached by the court in the circumstance is obviously perverse and a wrong exercise of judicial discretion.A decision will be held to be perverse where

(a) it is speculative and not based on any evidence or

(b) the court took into account matters which it ought not to have taken into account or

(c) the court shut its eyes to the obvious

Adimora v. Ajufo (1988) 3 NWLR pt 80 pg 1

Makanjuola v. Balogun (1989) 3 NWLR pt 108 pg 192

Atolagbe v. Shorun (1985) 1 NWLR pt 2 pg 360

Duru v. Nwosu (1989) 4 NWLR pt 113 pg 24

Ihewuezi v. Ekeanya (1989) 1 NWLR pt 96 pg 239

Adeosun v. Jibesin (2001) NWLR pt 744 pg 290

Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal court will be left with no option but to affirm such a decision. Where the findings and conclusions have been found to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principle have been applied to facts, or as in the case when the consequential orders do not flow from the conclusion of the trial court in the judgment, it was the duty of the lower court to re-evaluate and re-assess the offensive order made by the trial court, unsupported by the evidence adduced by both parties.

Woluchem v. Gudi (1981) 5 – 7 SC pg 291

Ebba v. Ogodo (1984) 1 SCNLR 372

Ibodo v. Enorofia (1980) 5 SC 42

Akinloye v. Eyiyola (1968) NMLR pg 92

Thompson v. Arowolo (2003) 7 NWLR pt 818 pg 163

Fatoyinbo v. Williams (1956) SCNLR pg 274

Balogun v. Agboola (1974) 10 SC pg 111

The Court of Appeal had in the circumstance of this case rightly interfered with the judgment of the trial court. Issue three is resolved in favour of the Respondent.

Issue Four

“Whether the court below, misconceived the case and thereby arrived at a wrong conclusion in its judgment.”

The learned counsel for the Appellant submitted in respect of the issue that the Court of Appeal misconceived the case of the parties particularly the Appellants claim before the trial court and this has led to the wrong conclusion in the judgment now challenged before this court. The Appellant exercised the right to protect his interest in his family property before the trial court. He urged this court to resolve this issue in favour of the Appellant. The learned counsel for the Respondent submitted that the Court of Appeal found that the lower court concluded that the Appellant did not prove their case before the trial court on the preponderance of evidence. Instead of dismissing the suit, the trial judge proceeded without jurisdiction to grant reliefs that were neither pleaded nor prayed for in evidence. The court is urged to affirm the judgment of the Lower Court and set aside that of the trial court. This issue is a straight forward one as the judgment of the trial court demonstrated a dispassionate evaluation of the evidence of the parties based on their pleadings and oral evidence before the court. The trial court based his conclusion on the facts pleaded and the oral evidence of the parties in support of the pleadings. The trial court rightly concluded that being claims for declaration of title to land the Plaintiffs/Appellants failed to succeed on the strength of their case by adducing cogent and acceptable evidence. The evidence of the Plaintiffs/Appellants was more in favour of or rather strengthened the case of the Defendant/Respondent to establish a joint family property. The relief made thereafter did not flow from the pleadings the oral evidence in support by the parties and even the findings of the trial judge. They were simply based on the discretion of the learned trial judge. This issue is resolved in favour of the Respondent.

Issue Five

“Whether the court below was right in law, to set aside the judgment of the trial court, which granted less and not more than the Appellants relief of Exclusive Ownership.”

In the consideration of the issue the learned counsel for the Plaintiff/Appellant asked the question whether the court below was right in law to set aside the judgment of the trial court, which granted less and not more that the Appellant’s relief of exclusive ownership. The Court of Appeal agreed that the lower court can grant less but not more referring to the decision of the trial court. What the trial court granted the Appellant his alternative Claim in paragraph 35(e) of his further Amended Statement of claim is far much than his claim for Exclusive Ownership in paragraph 35 (a) (b) (c) and (d) of his further Amended Statement of claim, which is proper in law.

Ekpenyong v. Nyong (1975) 2 SC 71

Awosile v. Sotumbo (1992) 5 NWLR pt 243 pg 544

A.G Anambra State v. Okafor (1992) 2 NWLR pt 224 pg 514

The lower court was therefore wrong to disturb the learned trial judge’s judgment predicated on the parties pleadings evidence and admissions. The Appellate Court will also not interfere for the sheer fancy of substituting its view for the view of the trial court, when that court has properly evaluated the evidence and made findings of fact. The learned counsel cited cases to buttress the foregoing submission as follows:-

Aknloye v. Eyiyola (1968) NMLR pg 92

Awoyale v. Ogunbiyi (1986) 2 NWLR pt 24 pg 926

Agbabiaka v. Saibu (1988) 2 NWLR pt 24 pg 926

Ogbechie v onochie (1988) 1 NWLR pt 70 pg 370

Kwajaffa v. B.O.N ltd (1999) 1 NWLR pt 597 pg 423

Ademolaju v. Adenipekun (1999) 1 NWLR pt 587 pg 440

The Court is urged to resolve the issue in favour of the Appellant. The learned counsel for the Respondent had replied to this issue under issue three.

On a careful perusal of the evidence on printed record there is no doubt about it that the lower Court was right in law to set aside the judgment of the Trial Court. On pg 197 of the Record, lines 9 – 11, the Lower Court found that the Trial Court having found that there was no sufficient evidence to establish exclusive ownership for the Plaintiffs/Respondents should have been courageous enough to dismiss the claim. Secondly the Lower Court found that the alternative relief of the Plaintiffs before the Trial Court is not a request by the Appellant for the partition of the property on the disputed land. The alternative relief requested for limiting the Defendant/Appellant to only one storey building. The Lower Court explained the position of law as aptly stated in the cases of

Ekpeyong v. Nyong (1975) 2 SC pg 71 at pg 81- 82

Awoside v. Sotumbo (1992) 5 NWLR pt 243 pg 544

A.G. Anambra State v. Okafor (1992) 2 NWLR pt 224 pg 514

The position of the law is clear that a Court of Law can only grant reliefs claimed by a party and not more”. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them. Neither of the parties requested for partition of the family property. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a Trial Court. The Court must hear the view of the parties before making an order different from the one claimed. In this case the Court was wrong to have made the order for the sharing of the three buildings as the right of somebody must have been violated and he could not be denied the right to be heard in the circumstance and moreover none of the parties specifically requested for such order.

Abbas v. Solomon (2001) 15 NWLR pt 736 pg 483

Korede v. Adedokun (2001) 15 NWLR pt 736 pg 483

It must also be borne in mind that for a judicial discretion to be exercised judicially and judiciously it is not exercisable on a mere figment of the person doing so but upon facts and circumstances necessary for the proper exercise of that discretion. Where a Court grants a relief in the exercise of its inherent powers, it can only grant a relief which in the circumstance of the case that party is entitled to.

Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR pt 158 pg 516

George v. Dominion Flour Mills Ltd (1963) 11 SCNLR 117

Kalio v. Kalio (1977) 2 SC pg 15

Metalimpex v. A.G Leventis & Co. Ltd (1976) 2 SC pg 91

Where a claim succeeds the granting of the reliefs goes along with the success of the claim. Where a claim has not succeeded the only logical order is to dismiss the claim. It is only when the Respondent has counter claimed and the issue of joint ownership properly established by a party and counter claim succeeds that the trial can come with consequential order of sharing of the three buildings. A consequential order is one flowing directly and naturally and inevitably consequent upon a judgment. It must give effect to the judgment already given not by granting a fresh and unclaimed or unproven relief.

Akinbobola v. Plisson Fisko (1991) 1 NWLR pt 107 pg 270

Liman v. Mohammed (1999) NWLR pt 617 pg 116

Akapo v. Hakeem Habeeb (1992) 6 NWLR pt 248 pg 266

Since the Orders of the trial Court did not give effect to the conclusion in the judgment which it followed it was rightly set aside by the Lower Court.

Issue Five is resolved in favour of the Respondent.

Issue Six

“Whether the Hon. Supreme Court, as a court of last resort is not competent in law, to resolve this dispute between members of the same family which may render any of them homeless.”

The learned counsel in his submission urged this Court as the Court of last resort to tow the line of the Lower Court which stated in the leading judgment that:-

“Since the parties are related I award no costs in this appeal. I encourage them to settle their differences amicably within the family circle.”

This Court is also to uphold the judgment of the Trial Court, since the parties by their pleadings, evidence and admissions agree that they have buildings in their homestead NO.17, Ekeonunwa Street Owerri which by their custom is in alienable. The resolution of this family dispute by this Court will grant constitutional rights to shelter and freedom from discrimination on any grounds or alternatively if the Court holds that the entire procedure is a nullity as contended by the Court below because the learned trial judge adjudicated on issues not placed before it which breaches the parties constitutional right to their hearing, to non suit the Plaintiff/Appellant and make an order for retrial or rehearing. Finally the learned counsel urged the Court to allow the appeal and set aside the judgment arid order of the Lower Court and affirm that of the Trial Court.

The learned counsel for the Respondent prays this Court to dismiss the appeal and affirm the judgment of the Lower Court.

The request of the learned counsel in this issue is asking this Court to submerge itself in the mistake made by the Trial Court and perpetrate the same error made by the Court which is glaring on printed record and subject of an appeal to the Lower Court. The Lower Court had rightly decided the appeal set aside the judgment of the Trial Court and dismissed the Respondent’s claim. This court has no reason to interfere with the judgment of the Lower Court that is the Court of Appeal.

An appellate court has no jurisdiction to adjudicate on appeal and pronounce on an issue that was not raised by way of appeal before it. An appeal is a continuation of the matter before a Trial Court, and the proceedings in an appeal is by way of re-hearing to enable the Appellate Court evaluate the evidence that has been adduced. The purpose of an appeal is to find out whether or not, on the evidence and the applicable law the Trial Court came to a right decision

Sabru Motors (Nig.) Ltd. V. Rajah Enterprises (Nig.) (2002) FWLR pt 116 pg 841 .

B.A. Plc v. Mustapha (2004) 1 NWLR pt 855 pg 443

Laggav. Sahhuna (2009) All FWLRpt 455 pg 1617

Ngige v. Obi (2005) NWLR pt 999 pg

The remarks in the leading judgment which reads as follows:-

“Since the parties are related, I award no costs in this appeal. I encourage them to settle their differences amicably within the family circle” is an obiter dictum, a passing remark by the court. Whereas a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision.

Govt. of Akwa Ibom State v. Power corn (Nig) Ltd (2004) 6 NWLR pt 868 pg 202

Babalola v The State (1989) 4 NWLR pt 115 pg 264

Azaatse v. Zegeot (1994) 3 NWLR pt 342 pg 76

Since an appeal is a continuation of the case before the Trial Court, the Appellant cannot at this stage consider the issue of constitutional rights to shelter and freedom from discrimination which were not taken before the Trial Court or the Lower Court. This is because this Court would not have had the benefit of the opinion of the lower court or the Trial Court on the issue.

FRN v. Zebra Energy Ltd (2002) 3.NWLR pt 754 pg 471

A. G. Oyo State v. Fair Lakes Hotel Ltd (1988) 5 NWLR pt 92 pg 1

This Court even a court of last resort, is subject to the qualification that the Court of last resort may refuse to entertain even a question of law sought to be raised for the first time, if it is satisfied that the Court below would have been in a more advantageous position to deal with the matter. Resolution of family dispute so as to guarantee Constitutional rights to shelter and freedom from discrimination cannot be entertained in vacuo without evidential backup. Such evidence is not a matter for an Appellate Court.

Fadiora v. Gbadebo (1978) 3 SC pg 219

Adeyemi v. Opeyori (1976) 9 – 10 SC pg 31

On the alternative request the viable order to make in the circumstance of this case which the Lower Court had rightly made is to dismiss the suit. It does not require any non-suiting the Plaintiff/Appellant or ordering a retrial or re-hearing of the matter. It is relevant to set aside the judgment of the Trial Court as to sharing of the three buildings on the disputed property. The effect of sharing the property as pronounced upon by the Trial Court will either amount to partitioning or making an allotment of the property. Partitioning is a means of automatically determining a family ownership of a property and sharing same within constituent members of that family to a person for limited or occupational use as he does not become absolute owner of the property allotted to him no matter the period of use. Allotment is made by the head of the family and partition is brought about by the consensus of all the members of the family. Since either partition or allotment is strictly a family affair the Court cannot make an order declaring a property a joint property and consequently make an order for sharing same by a stroke of the pen. I cannot end this judgment without condemning the greed and avarice demonstrated by the Respondent’s father in the acquisition of the family property. He built houses on the disputed family land and prevented members of the family from enjoying the same privilege.

The young relations of yesterday are now adults and they are obviously entitled to their fair share of the family property. I am of the opinion that this matter should have been instituted before a Customary Court where the issue of the Native Law and Custom of the people of Owerri would have been property addressed and interpreted in respect of the disputed land. Nevertheless I endorse the advice of the Lower Court that this matter be amicably settled within the family circle. The end result is that this appeal lacks merit and it is therefore dismissed.

Judgment of the Lower Court is affirmed. No order as to costs.

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SC.390/2002

Otunba Adesesan Oguntayo V. Prince Fatal Adelaja (2009)

LAWGLOBAL HUB Lead Judgment Report

J.O. Ogebe, JSC

The 1st Respondent in this appeal who was the plaintiff in the High Court of Ogun State sued the appellant and the other respondents claiming in his writ of summons as follows:

‘1. A declaration that being a Kingmaker by virtue of the registered declaration for Ajalorun of Ijebu-Ife Chieftaincy, the 1st Defendant is not eligible to be nominated, selected or appointed, approved and installed as the Ajalorun of Ijebu-Ife in the Ijebu East Local Government Area of Ogun State.

A declaration that being the Oraderemo of Ijebu-Ife the 1st Defendant is not eligible to be nominated selected or appointed, approved and installed Ajalorun of Ijebu-Ife.

A declaration that the purported nomination of the 1st Defendant as a candidate by the Afurukeregboye House for the filling of the vacant stool of Ajalorun of Ijebu-Ife irregular, illegal, unconstitutional, null and void.

A declaration that the purported selection or appointment of the 1st Defendant by the 2nd, 3rd 5th, 6th and 7th Defendants as the Ajalorun of Ijebu-Ife is irregular, illegal, unconstitutional, null and void.

An order setting aside the purported nomination, selection or appointment of the 1st Defendant as Ajalorun of Ijebu-Ife.

Perpetual injunction restraining the 8th and 9th Defendants from giving approval to the purported selection or appointment of the 1st Defendant as Ajalorun of Ijebu-Ife’.

Pleadings were exchanged between the parties and the matter went into full trial. The question turned on the illegibility of the appellant to be nominated and appointed the Ajalorun of Ijebu-Ife on the ground that as the head of the Kingmakers he was not qualified to take the title, and also as a descendant from the male-line he was not qualified. The 1st respondent did not raise the question of the appellants descent from the male line in his statement of claim. He only raised it in his reply to the appellants Statement of Defence.

Witnesses were called on both sides but the appellant did not testify on his own behalf. During the course of the trial the 1st respondents counsel sought to tender proceedings in suit No. SCJ/6/85 to show that the appellant had given evidence in the proceedings that he was of male descent. There was objection to the admissibility of that document. The learned counsel for the 1st respondent failed to reply to the objection. Instead he applied to withdraw the document and the Higher Registrar of the High Court through whom he had tendered the document. The trial court marked the document rejected.

At the conclusion of the case the trial court evaluated the evidence and dismissed the 1st respondents claim. He was aggrieved by that decision and appealed to the Court of Appeal Ibadan Division which allowed the appeal and ordered a retrial of the case before another Judge mainly on the view of the Court of appeal that the 1st respondent was not given a fair hearing by the trial court before the proceedings in HCJ/6/85 was rejected.

Dissatisfied with the decision the appellant appealed to this court and the 1st respondent also cross-appealed to this Court. Both of them exchanged briefs in respect of their respective appeal. It should be noted that all the other defendants/respondents have not shown interest in this appeal. The appeal is simply between the appellant and the 1st respondent.

The learned counsel for the appellant in his brief of argument formulated 3 issues for determination as follows:

“(a) Whether having regard to the pleadings and evidence, the Court of Appeal was right in overturning the decision of the trial Court by which that Court held that the 1st Defendant did not descend from the male line of the Afurukeregboye Ruling House. This issue is distilled from Ground 1 of the grounds of appeal.

(b) Whether in the face of the provisions of Section 34 of the Evidence Act and the evidence before the trial Court, the Court of Appeal was right in holding that the learned trial Judge breached the rule of natural justice and was wrong in law in rejecting the proceedings in Suit No. HCJ/6/85 in evidence. This issue is distilled from Grounds 2, 3 and 4 of the grounds of appeal.

(c) Whether in all the circumstances of the case, the Court of Appeal was right in ordering a re-trial of the case? This issue is distilled from ground 5 of the grounds of appeal.’

The learned counsel for the 1st respondent filed a brief and distilled 2 issues for determination as follows:

‘1. Whether, having regard to the circumstance of this case, the way and manner the proceedings in Suit No. HCJ/61/85 was rejected did not occasion a miscarriage of justice warranting the Court of Appeal to interfere with the decision of the trial court; and

whether the Court of Appeal was right in its decision ordering a new trial.

In his brief the 1st respondents counsel raised a preliminary objection to the competence of the appeal. During the oral hearing of the appeal he abandoned the objection and I hereby strike it out.

The 1st issue raised in the appellants brief showed that the learned counsel for the appellant misunderstood the findings of the Court of Appeal on the question of the appellants descent from the male line of the AFURUKEREGBOYE RULING HOUSE. The Court of appeal did not overturn the decision of the trial court that the appellant did not descend from the male line.

The Court of Appeal at pages 335, 336, and 337 of the Record found exhaustibly as follows:

‘Whereas, it can be said, that it is doubtful that the appellant proved that the 1st Respondent is a member of the Afurukeregboye Ruling House on the male line, the 1st Respondent pleaded and proved that he is a member of the said house on the female line. In his statement of defence the following facts were averred-

With reference to paragraphs 17, 18 and 19 of the Statement of Claim, the 1st Defendant avers as follows:

(a) That he is a member of the Afurukeregboye Ruling House of the female line.

(b) That his great paternal grandmother, Princess Adeite Adeoti was a daughter of Oba Olumona Afurukeregboye the 30th Ajalorun of Ijebu-Ife and his claim to the vacant stool of Ajalorun is through Princess Adeite Adeoti.

A cousin of the 1st Respondent, Yekinni Adesanya Oguntayogave evidence on the genealogy of the 1st Respondent, in a bid to support the supra averment, as follows:

‘The 1st defendant is my 1st cousin. The 1st defendant and myself are related to Afurukeregboye through the female line. Olumona was the first to bear the name Afurukeregboye. No other Oba bore the name Afurukeregboye before Olumona. It is not possible that anyone can claim to belong to the Afurukeregboye Ruling House without being related to Oba Olumona. I know Adeiti. She is the daughter of Olumona. Adeiti Adeoti is the mother of Olufowobi Oguntayo and he begat Raji Osibade and he begat Adesesan Oguntayo the 1st defendant. ‘

Suffice to say that the above piece of evidence, even though not coming from the 1st respondent himself has established his claim that he is a member of the Ruling House by female line through Adeiti his great grand mother.

Then there was the allegation of complaint of the eligibility of the 1st respondent on his descendancy by the Appellant and some other members of the Afurukeregboye Ruling House. In his, evidence the Appellant testified that he thought his protest was recorded, but looking at the record of the meeting Exh. ‘C10’ the complaint on the genealogy of the 1st Respondent is not contained therein. The only protest recorded is in respect of the impropriety of the Oladere mo, the position he held, to be nominated or appointed as an Ajalorun. In fact the petition he wrote to the then Military Administrator of Ogun State Exh. C did not raise any complaint or protest on the genealogy of the 1st respondent. The complaints on Exhibits C10 – are all in respect of the 1st respondents disqualification because he was an Oraderemo, a Kingmaker, who should not be nominated to fill the vacant stool of Ajalorun. It is as clear as crystal therefore that the Appellant has not established his claim and allegation that the 1st Respondent was not qualified or eligible to be nominated or appointed as the Ajalorin because he did not come within the category of those eligible as stated in the Declaration Exh. L. In the circumstance I fail to see that the first stage is irregular, illegal, unconstitutional null and void as professed in the Appellants brief of argument. I am satisfied therefore that the 1st Respondent was validly nominated, and so the argument canvassed in respect of a second stage of the appointment by the appellant is of no importance’.

It follows therefore that the appellants first issue is not relevant to this appeal and I discountenance it.

The remaining two issues are identical with the two issues raised in the 1st respondents brief and I shall adopt them in this judgment. The learned counsel for the appellant submitted under the second issue that the trial court was right in rejecting the proceedings in suit No. HCJ/6/85 because its admissibility was objected to and the 1st Respondents counsel who had an opportunity to reply to the objection failed to do so. Instead he withdrew both the document and the witness. The learned counsel submitted that that document could only be used to contradict the evidence of the appellant who in this case did not testify at all. The Court of Appeal was therefore wrong in holding that the rejection of the document amounted to denial of fair hearing resulting in miscarriage of justice.

The learned counsel submitted that the proceedings could not be admitted under section 34 of evidence Act as the whole purport of that document was to contradict the evidence of the appellant who as it turned out never testified in the case. He relied on the case of Ogunaike V. Ojayemi (1987) 1 NWLR ( Pt.53) 769.

On this issue, the learned counsel for the 1st respondent submitted that the Court of Appeal was right in holding that the rejection of the proceedings without calling on the 1st respondents counsel to reply to the objection to its admissibility amounted to denial of fair hearing and miscarriage of justice. He said that that document was critical to the proof of the 1st respondents claim.

For proper resolution of this issue it is necessary to quote what transpired in the High Court It is at pages 90-92 of the record:–

‘P.W.2 – (He is not sworn). I am Kolawole Olufowobi, Higher Registrar, High Court of Justice, Ijebu-Ode. I live at 7, Lagos Road, Obalende, Ijebu-Ode. I have subpoena to tender the proceedings in HCJ/6/85 dated 28th March, 1989. Here is the Certified True Copy of the Proceedings.

Mr. AYANLAJA:

I object to the admissibility of this document. See Section 34 of the Evidence Act. It is evidence in a previous proceedings, it is inadmissible in this proceedings. Lagos State Development and Property Corporation Vs. Adoldstamn Inter Nig. Ltd. (1994) 7 N.W.L.R. (Part 358) 545 at 561 C-D, F-G.

Submits that in so far as the proceedings contravenes Section 34, it is irrelevant and inadmissible.

OSIMUGA:

I object to the admissibility. I associate myself with the submission of counsel.

MABEKOJE:

I object to the admissibility of the document.

CHIEF COKER:

At this stage I withdrew the evidence and the witness.

AYANLAJA:

The document should be marked rejected.

CHIEF COKER:

The witness is withdrawn (sic), the document cannot be marked rejected.

COURT:

This document has already been tendered before an objection was raised on point of law. After the document and the witness were withdrawn by counsel for the plaintiff. Chief Coker submitted that since he had not addressed the court on the submission made by counsel for the 1st defendant, the court ought not to mark the document rejected. It is my view that in view of the facts already placed before this court, the fact that Chief Coker -had not replied to the objection raised by learned counsel for the 1st defendant does not preclude the court from making a ruling on the admissibility of the document.

In my view the document is not admissible. It is to be marked rejected.’

It is clear from the proceedings that P.W.2 Kolawole Olufowobi a High Registrar of the High Court of Ijebu Ode was only called to tender the proceedings in case No. HCJ/6/85. The defendants counsel objected to its admissibility. The plaintiffs counsel Chief Coker chose not to reply to the objection even though he had ample opportunity to do so. Instead he applied to withdraw the evidence and the witness. What the trial court ought to have done was to have asked him to reply to the objection so that it could properly rule on the admissibility of the document or the court would have granted the request to withdraw the evidence and the witness. The trial court was clearly wrong in marking the document rejected when argument had not been concluded on its admissibility. But can it be said that the 1st respondent to this appeal was denied fair hearing as held by the Court of appeal? At pages 341 to 342 the Court of Appeal opined as follows:

“That is a very wrong view, for the principle of fair hearing and audi alteram paten (sic) has been violated. When the Respondents gave their reasons for objecting to the admissibility of the document, it was incumbent on the learned Judge to hear Appellants Counsels address on it. Equity and fair play demands that both parties be heard in order to ensure that justice prevails, for in depriving the other side the opportunity of being heard before rejecting the document in totality, a miscarriage of justice has been occasioned. See Olagunju V. Oveniran (1996) 6 NWLR part 453 page 127. The heavy weather mad~ about the breach of the rule of audi alteram patem to my mind is warranted even if the evidence and witness were voluntarily withdrawn by learned counsel for the Appellant before the ruling. I refuse to endorse the argument of learned State Counsel that the fact that the learned trial Judge failed to give reasons for rejecting the said document is immaterial. That he conceded that the document was inadmissible and withdrew it at that stage does not warrant the rejection of it at that stage, for by so doing the Appellant was completely shut out as far as the record of proceeding of Suit No. HCJ/6/85 upon which he relied heavily was concerned. If it had not been marked rejected he would have found another avenue of tendering it.’

With the greatest respect, the Court of Appeal misunderstood the purport of the proceedings sought to be tendered and wrongly castigated the trial court for denying the 1st respondents counsel the opportunity to reply to the objection to the admissibility of that document. The learned counsel for the 1st respondent who tendered the document heard the objection and had every opportunity to reply to it. For reasons best known to him, he refused to reply. To my mind this was abandonment of his right to reply. Not only that he then withdrew both the document and the witness which meant that he conceded the objection. How else can One explain his withdrawal of both the document and the witness?

It is trite law that evidence of a witness taken in an earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only.

See L.S.D.P V. Adold/stamm Int. Ltd. 1994 7 NWLR

(Pt. 357)545 at 561-562, and Okonji V. Njokanma 1999 -14 NWLR (Pt. 638 at 280-281.the point was succinctly made in the case of Ogunaike V. Ojayemi 1987 1 NWLR (Part 53) 769 in the following words:-

“In Ariku V. Ajiwogbo (1962) 1 All NLR (Part 4) Page 629 at Page 631 Ademola CJF delivering the judgment of the Supreme Court stated the law as follows:- This Court has frequently directed attention to The practice, now not uncommon, of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade V. Aborishade 5 F.S.C. 167 at P. 171, this is only permissible under Section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also pre-requisites to the making use of the former testimony of a witness; for example, his attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion.

In this case at the trial, the respondent was never confronted with Exhibit ‘C’ when she gave evidence and neither was her attention drawn to any specific portion of her testimony in Exhibit ‘C’. In fact this could not have been possible as Exhibit ‘C’ was tendered by 3D.W. towards the end of the case after the respondent and her witnesses had closed their case. In my view the Court of Appeals criticism of the Appellate Judges use of Exhibit ‘C’ was justified. Accordingly this ground of appeal also fails’.

In the present case the appellant did not testify on his own behalf and so he could not be contradicted by showing him the earlier proceedings. The learned counsel who sought to tender the proceedings, withdrew 56th the document and the witness. For all practical purposes that document ceased to be relevant in the case even if it was not marked rejected since the learned counsel who tried to tender it, had withdrawn it. If he tried to tender it again he would be met with the same objection as he had withdrawn the only witness through whom it could be tendered.

It. can be seen from my analysis above that nobody violated the 1st respondents right of fair hearing and no miscarriage of justice resulted from the rejection of the document.

On his 3rd Issue the learned counsel for the appellant submitted that the Court of Appeal was wrong in ordering a retrial just because the proceedings in suit No. HCJ/6/85 was marked rejected. He said that sending it back just because of that document which was withdrawn by the 1st respondents counsel would not in any way help their case.

The learned counsel for the 1st respondent submitted otherwise and urged this Court to admit the document under section 22 of the Supreme Court Act and use it in favour of the 1st respondents claim.

This submission is totally misconceived since the 1st respondents counsel did not press for the admission of the document in the trial court but withdrew it. How can we now admit it at the Supreme Court level? I agree with the learned counsel for the appellant that the Court of Appeal was wrong in ordering a retrial as that document was no longer relevant.

The 1st respondent/cross-Appellant filed a cross-appellants brief and identified 3 issues for determination as follows:

(1) Having regard to the Ajalorun Chieftaincy Declaration, whether the 1st respondent can validly contest for the office of Ajalorun and whether the 1st respondents selection was not fraught with irregularities which vitiate the entire exercise; Grounds 2,3 & 4.

(2) Whether the learned justices of the court below were not in error in holding that the 1st respondent was qualified to contest for the office of Ajalorun without evaluating or properly evaluating the crucial effect which the proceedings in HCJ/6/85 have on the qualification of the 1st respondent; (Ground 1)…; and

(3) Having regard to the totality of the evidence before the court below, whether it was fair and unconscionable for the 1st respondent to be chosen as the Ajalorun and whether the court below was right not to have found for the plaintiff as per his statement of claim –

Grounds 5, 6 and 7.’

The appellant/cross-respondent also filed a cross-respondents brief and formulated 3 issues for determination as follows:

‘(a) Having regard to the Ajaolorun Chieftaincy declaration, whether the 1st Defendant could validly contest for the office of the Ajalorun and whether the 1st Defendants selection was tainted with irregularities capable of vitiating the selection process. (Grounds 2, 3 of the Grounds of Appeal).

(b) Whether having regard to its finding that the proceedings in HCJ/6/85 were wrongly rejected in evidence, the Court of Appeal was right in (a) ordering a retrial of the case (b) holding that the 1st Defendant is a member of Afurukeregboye Ruling House through (sic) the female line (Grounds 1 and 4 of the Grounds of Appeal).

(C) Whether the Lower Court was right in upholding the finding of the High Court that neither the allegation of undue influence on the part of the 1st Defendant nor likelihood of bias on the part of 2nd 7th Defendants was substantiated. (Ground 5).’

On these three issues the learned counsel for the cross-appellant submitted by way of summary that the Ajalorun Chieftaincy declaration is not exhaustive on the qualification of candidates into that office and by Native Law and Custom of Ijebu-Ife the 1st defendant as the head of kingmakers could not contest for that office and the court below was wrong in holding that he was qualified to contest.

The learned counsel for the cross-respondent submitted that the lower court was right in holding that the cross-respondent was properly nominated and selected as Ajalorun despite the fact he held the post of Orademe-mo and carried out certain procedural functions during the selection process.

The trial court found as a fact that the appellant/cross-respondent was properly nominated and appointed to the disputed stool in accordance with the relevant chieftaincy declaration exhibit TC1 The Court of Appeal confirmed these findings of facts as I have shown earlier in this Judgment. This amounts to two concurrent findings of facts by the two lower courts and it is not for the Supreme Court to interfere with concurrent findings of facts of lower courts unless they are shown to be perverse and that is not the case in this appeal. See MOJEKWU V. IWUCHUKWU (2004) 11 N.W.L.R. (Pt. 883) 196, AGBANA V. OWA (2004) 13 NWLR (Pt. 889) 1. I see no merit in the cross-appeal.

Consequently, I see merit in the main appeal, and allow it. Set aside the judgment of the Court of Appeal as it relates to its order of retrial and restore the judgment of the trial court. I dismiss the cross-appeal for lack of merit. I award costs of N50,000.00 in the main appeal in favour of the appellant and N50,000.000 in the cross- appeal in favour of appellant/ cross-respondent.

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SC. 365/2001

Bernard Dan-jumbo Vs Dr Stephen Dan- Jumbo & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

In the High Court of the Rivers State of Nigeria, holden at Port Harcourt, the plaintiff Bernard Erefa Dan-Jumbo, issued out a Writ of Summons against (1) Dr. Stephen E. Dan-Jumbo (2) Howells Dan-Jumho (3) Gabriel Obubra Dan-Jumbo (4) Alfred D.W. Jumbo (5) Probate Registrar, Port Harcourt claiming as follows:-

‘CLAIM

the plaintiffs claim against the defendants is for the revocation of the grant of probate in respect of the will of late Chief Emmanuel Erefa Jene made to the 1st to the 4th Defendants by the 5th Defendant on the 6th of July, 1976 without notice to the plaintiff at a time plaintiffs appeal against the validity of the said will was pending.’

PAGE| 2

Issues were joined and pleadings were ordered, filed and exchanged. The 1st – 4th Defendants filed a joint Statement of Defence while the 5th Defendant filed a separate Statement of Defence. The plaintiff testified in support of his own case and called no witnesses. 1st Defendant testified for himself and on behalf of 2nd-4th Defendants, while Johnson Eremie, the 5th Defendant also testified.

At the conclusion of the evidence, learned counsel addressed the court after which judgment was reserved to 11th August, 1983.

In a considered judgment delivered by Dagogo Manuel, J. he concluded as follows:

‘I therefore hold that the plaintiff having lodged an appeal against the decision of the High Court considering the Will as being valid and as he has done all what is required by him to prosecute his appeal and as the loss of the original Will which has apparently caused the extreme delay in placing the proceedings before the appeal court has not been shown to be of his own making, it cannot be legally proper, as has been done, to grant probate before the appeal against the validity of the will is determined.

In consequence the claim succeeds and the probate granted on the 6th July, 1976 and marked Exhibit ’61’ in these proceedings is hereby declared invalid and therefore revoked.’

Aggrieved by the decision of the trial court, the Defendants appealed against it to the Court of Appeal. The Court of Appeal unanimously dismissed the appeal and Kolawale JCA, who delivered the lead judgment stated therein thus: –

‘The conclusion which I have reached upon all the authorities to which I have referred is that the learned trial Judge was right in his conclusion that probate ought not to be granted to the appellants upon a Will, the validity of which is still to be determined by the Court of Appeal. I am also satisfied that the fifth appellant was not entitled to grant probate to the first to fourth appellants. The respondent had entered a caveat against the grant without serving on the caveator a notice in the Prescribed form.’

The defendants have further appealed to this court.’

The facts of the case briefly stated are as follow:

Chief E.E. Jene of Bonny died on or about the 29th or 30th of March, 1969 and was survived by (1) Dr Stephen E. Dan-Jumbo, (2) Howells Dan-Jumbo. (3) Gabriel Obubra Dan-Jumbo, (4) Chief Alfred D.W. Jumbo, and (5) Bernard Erefa Dan-Jumbo as his sons. The deceased left a Will.

PAGE| 3

On 28th March 1971, the Probate Registrar, Rivers Stale [5th Defendant], invited the five sons of the deceased to the Probate Registry, Port Harcourt and read the deceaseds Will to them. On seeing the Will, Bernard Erefa Dan-Jumbo disputed the signature on it as that or their deceased father. He promptly filed a caveat on 28th June, 1971 attacking its validity. Dr Stephen E. Dan-Jumbo, Howells Dan-Jumbo, Gabriel Obubra Dan-Jumbo and Chief Alfred D.W. Jumbo countered the caveat by taking out a writ of Summons in the Rivers State High Court against Bernard Erefagha Dan-Jumbo for a declaration or pronouncement on the validity of the Will and at the end of the case the trial judge, Aliagoa J. delivered a considered judgment in which he concluded as follows:-

‘On the evidence before me I am satisfied and find as a fact that the document Exhibit A and A1 is the last Will of Chief E.E. Jene and that the attack of the Defendant on the Will is misconceived and that as the Probate Registrar testified the quarrel of the Defendant is not about the validity of the Will itself, but disgruntled about its contents’

The judgment by Allagoa J was delivered by him on 10th April, 1972 while the appeal against it by Bernard Erefa Dan-Jumbo was filed on 15th June, 1972 as shown on the Notice of Appeal. The Probate Registrar, on the strength of the judgment by Allagoa J, proceeded and granted the probate of the Will to Dr. Stephen E. Dan-Jumbo, Howells Dan-Jumbo, Gabriel Obubra Dan-Jumbo and Alfred D.W. Jumbo notwithstanding the appeal filed against the said judgment by Bernard Erefa Dan-Jumbo.

Henceforth Bernard Erefa Danjumbo will be referred to as the respondent while Dr. Stephen E. Danjumbo, Howells Dan-Jumbo and Alfred D.W. Jumbo will be referred to as the 1st, 2nd, 3rd and 4th appellants. The Probate Registrar will be referred to as the 5th defendant as he lodged no appeal.

In compliance with the Rules of this Court both the plaintiff as respondent and the defendants as appellants filed and exchanged briefs of argument. These were orally elaborated upon.

In the brier riled by the 1st – 4th appellants the following issues were formulated-

‘(1) Was the grant of probate by the fifth Defendant to the first to the fourth Defendants/Appellants made ‘mala fide or surreptitiously’?

(2) Was it a legal necessity for the 5th Defendant to put the plaintiff Respondent on notice, in the circumstances of this particular case, before making a grant of the probate of the Will of the Deceased to the first to the fourth Defendants/Appellants.

(3) In the circumstances of this case –

(i) Does the pendency of an appeal in a court operate as a stay of execution?

(ii) Does the doctrine of ‘Lis PENDENS’ apply?

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The respondent raised the following issues in his brief for this courts determination –

(i) Was the Court or Appeal right after reviewing the evidence, the posture of the Probate Registry and the circumstances that attended the grant of probate, to conclude that the grant was made mala fide or surreptitiously?

(ii) Was the Court of Appeal right to say that the non-filing of a motion for stay of execution of the judgment of Allogoa, J. was not necessary given the circumstances of the case?

(iii) Was the Court of Appeal right to resort to the doctrine of lis pendens to the facts of this case?

(iv) Was the Court of Appeal right to invoke the Probate Rules of England?

Learned counsel for the respondent Akpamgbo SAN raised successively objection to grounds 1 and 2 of the grounds of appeal as regards their competence and same were struck out. Since Issues 1 and 2 were hinged to the incompetent grounds, the issues must be struck out as they relate to no grounds of appeal. Issues 1 and 2 of the appellants brief are accordingly struck out. Also, particulars (iv) and (v) of ground 3 or the grounds of appeal are also struck out as they are not covered by the ground to which they are supposedly related,

In considering this appeal I shall confine myself to argument related to Issue 3 which covers ground 3; particulars (i), (ii), and (iii) of the grounds of appeal.

In arguing Issue 3, it was the submission of learned counsel for the appellant that ordinarily an appeal dues not operate as a stay of execution and a court is competent to execute its judgment. He argued that in the case in hand there was no order of stay of execution against the judgment in PHC/49/71 delivered by Allagoa J. Learned counsel cited and relied on .B.W.A. Ltd. v. N.I.P. C. Ltd. & Ors. (1962) L.L.R. 31; Ogunremi V. Dada (1962) 1 All NLR 663; Akinsanya V. Adegbenro (1965) NMLR 301 and Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd, (1980) 5-7 SC 60 among others.

On the doctrine of Lis pendens learned counsel argued that the doctrine only applies in cases having as their objective, the recovery or assertion of little to a specific property and invariably, real property. He relied in support on Ogundiani v. Alaba & Ors. (1978) 6 and 7 SC 55; John Ajayi v. Union Bank of Nigeria (1989) C.L.R. Q 220 and Ikeanyi v. A.C.B. Ltd. (1991) 7 NWLR (Pt.205) 626.

He urged this court to allow the appeal, set aside the judgment of the Court of Appeal and the court below and dismiss the respondents claim in toto.

In reply to submissions of learned counsel for the appellant, Mr. Akpamgbo, SAN learned counsel for the respondents agrees that an appeal against a judgment does not ordinarily operate as a stay of its execution but submits that in the circumstances of the case in hand, a stay of execution of Allagoas judgment was necessary since the caveat entered by the respondents was neither discharged nor withdrawn.

PAGE| 5

He also submits that it was the 5th appellant who unilaterally and relying on the judgment of Allagoa J. against which he knew there was pending appeal, granted the probate.

As regards the doctrine of lis Pendens learned Senior Counsel for the respondent submits that although it prevents the effective transfer of rights in any property which is the subject matter of an action pending in court, it is not confined to tangible rights only but it also applies to intangible rights, such as the right involved in this case. It was his contention that the 5th defendant was aware that the appeal against the judgment of Allogoa J’ was pending at the time he granted the probate of the Will containing the disputed signature of its alleged marker. He urges the court to dismiss the appeal and affirm the judgments of the trial court and the Court of Appeal.

It is pertinent to reiterate that the 5th defendant, though being referred in the proceedings in both the Court of Appeal and this court as the 5th appellant had neither appealed against the judgment of the trial court nor that of the Court of Appeal.

The fact in this case is not seriously in dispute. The gravamen is whether the signature on the Will sought to be probed in genuinely that of Chief E.E. Jene (deceased). Both the 1st – 4th appellant together with respondent were invited by the 5th defendant who was the Probate Registrar at the time, to the Probate Registry, Port Harcourt, Rivers State to read to them the Will of their deceased father.

On reading the Will, the respondent demanded to see it and after doing so, he disputed the genuiness of the signature on it as that of their deceased father. This was on 28th March, 1971. On the same day the Respondent entered a caveat attacking the validity of the Will.

The 1st – 4th appellants filed Suit No. PHC/49/71 seeking for a declaration of the validity of the Will in dispute. This was before Allagoa J (as he then was). At the conclusion of the hearing the learned judge granted the declaration. The respondent promptly appealed against this decision to the Court of Appeal. The 5th defendant was aware of this move by the respondent, yet he went ahead and granted the probate of the Will to the appellants. It was as a result of this action by the 5th defendant that the respondent filed Suit No. PHC/137/79 before Dagogo manuel J, seeking for the revocation of the probate granted by 5th defendant.

As I have indicated earlier in this judgment, the 5th defendant did not appeal against this judgment but only the 1st – 4th appellants did. In a considered judgment of the Court of Appeal delivered by Kolawole JCA, which was concurred in by Onu J.C.A (as he then was) and Omosun J.C.A. the learned Justice concluded:-

‘The conclusion which I have reached upon all the authorities to which I have referred is that the learned trial judge was right in his conclusion that probate ought not to be granted to the appellants upon a Will the validity of which is still to be determined by the Court of Appeal.

PAGE| 6

I am also satisfied that the fifth appellant was not entitled to grant probate to the first to fourth appellants the respondent had entered a caveat against the grant without serving on the caveator a notice in the Prescribed Form.’

It is not in doubt, nor is it disputed that the respondent questioned the validity of the Will as regards the signature of the testator. He promptly entered a caveat.

In paragraph 9 of the Statement of Claim the plaintiff/respondent averred;

‘The plaintiff at a meeting with the 5th defendant asking (sic) to see the Will and on seeing the Will disputed the signature of the deceased and later filed a caveat attacking the validity of the Will on the 28th June, 1977”.

This was admitted by the 1st – 4th defendant/appellants in paragraph 4 of their joint Statement of Defence which averred:

‘The 1st – 4th defendants admit paragraph 9 of the Statement of Claim.’

The 5th defendant also admitted paragraph 9 of the Statement of Claim in paragraph 6 of his Statement of Defence wherein he pleaded thus-

‘6. The 5th defendant admits paragraph 9 of the Statement of Claim”

Although what is admitted requires no further evidential proof, the defendant/appellants further confirmed the admission by oral testimony. The 1st defendant/appellant stated under cross-examination-

‘The plaintiff was present at the reading of the Will and questioned the validity of his fathers signature on the Will. I did not disclose to the officer for probate that the validity of the Will was being challenged.’

The 5th defendant/appellant testifying as D.W.1 stated thus-

‘I was Registrar at the time the probate was granted…… the plaintiff lodged a caveat against the validity of the Will. The High Court gave a decision in favour of the Executors as shown in Exhibit A. A probate was thereafter granted to the Executors.’

The consideration is now limited to two aspects of the issues raised to wit:

Whether an appeal lodged against a judgment can operate as a stay of execution of that judgment.

Whether the doctrine of Lis Pendens is applicable in this case.

PAGE| 7

These issues seemed to have been in ground 11 of the Grounds of Appeal contested in the Court of Appeal.

It is not in dispute that the respondent entered caveat against the Will in dispute. During the trial of the appellant’s case before Allagoa J (as he then was) the original Will was tendered and admitted in evidence.

The respondent appealed against the judgment in PHC/49/71 and paid all necessary fees as testified by P.W.1 in PHC/137/79. The process of compiling and forwarding the record in PHC/49/71 was terribly hampered by the loss of the original Will. On this Manuel J commented thus –

‘I will accept that the loss of the original Will does not doubt the grant of Probate but this will be subject to the acceptance of the Will as being valid. In the present suit where the validity of the Will is challenged on the ground of the signature not being that of the testator, a certified copy of the Will, is the one attached to the Probate in this suit, which does not carry any signature, cannot be helpful to resolve the challenge. A photocopy would have been more helpful as it would show the signature being questioned.”

……………………………………………………………………………………………………………………………………………………

‘All that the court is concerned with in this suit is to determine the legal propriety in the grant of Probate of the Will the validity of which has not been determined by an appeal court.’

Although an appeal against a decision will not operate as an automatic stay of execution against such judgment, but the court should always consider the facts in the case as to whether such judgment if enforced will not render nugatory the result obtained on appeal – see Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1996) 3 S.C.N.J. 50. In any view, this is one of such cases. The crux of the matter involved in this case is the validity of a Will vis-à-vis the signature of its maker. A caveat attacking its validity was lodged by the respondent and without following the necessary procedure, the appellants filed Suit No. PHC/49/71 before Allogoa J, asking for a declaration of the validity of the Will. He granted the request as contained in his judgment Exhibit A as evidence in Exhibit B, the Notice of Appeal. Immediately after Exhibit A, the 5th defendant granted the probate of the Will without prior notice to the respondent whose caveat was still subsisting. The action by the 5th defendant is hasty and against the laid down procedure. The learned trial judge was cognizant of the irregular procedure in handling the matter by the 5th defendant when he stated, thus in Exhibit A –

‘Before going into the merits of the case having regard to the procedure adopted both by the applicant for grant of Probate and by the Probate Registrar which in my view appears to be novel and a misunderstanding of Rules and practice in Probate matters and which have given rise to this litigation I consider it necessary to refer to the law and the Rules governing this matter since I am not aware of any previous decision by this court in support of the procedure adopted.’

That Notwithstanding he proceeded and granted the declaration sought.

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In the circumstances of this case, I agree with Kolawole JCA in the lead judgment when he opined thus-

‘The fifth appellant/defendant did not take the appropriate steps which he should have taken after the entry of caveat by the respondent. The fifth appellant, in my view ought to have issued a notice to appear against the caveat, respondent, on behalf of the first to fourth appellants whose application for a grant had been stopped as the fifth appellant clearly admitted in paragraph 7 of his statement of defence thus-

‘That as a result of the caveat filed by the plaintiff the 5th defendant was estopped from the grant of probate’

In my view, the fifth appellant was not entitled to grant probate to the other four appellants after the conclusion of the case by Allagoa J on 10th April, 1973 when an appeal had been lodged against the judgment. There was no necessity to apply for a stay of execution as he Lis was still pending and the Will was still in litigation. The position was admirably put at page 1147 of the Lord Trimlestown case by Sir John Nichholl thus-

‘The taking of an administration with a Will annexed, which Will was in litigation, is, at least, practicing a deception upon the court … The administration too was obtained, after knowledge that caveat had been entered which was never warned, and that caveat having expired, this administration was taken without giving any notice to the other party. At least then it was obtained, to use a tender expression, irregularly …………….’

On the issue of lis pendens, The learned Justice commented and concluded as follows:-

‘True, so many years have elapsed since the filing of the appeal in PHC/49/71 and the institution of action in this appeal on 21st May, 1979 in suit number PHC/137/79 but that appeal has not been determined on its merit and neither has it been terminated on the application of the respondents to the appeal. On that basis, there is lis pendes and the principle is that the law does not allow to the litigant parties or give to them during the currency of the litigation involving any property rights in such property so as to prejudice any of the litigating parties. (see Ogundaini v. Araba & Barclays Bank of Nigeria Ltd. (1978) 6/7/SC /55 P. 78, John A. Osagie v. S.O. Oyeyinka & Anor. (1987) 3 NWLR (Part 59) P. 144 at P. 155 Steven Omo Ebueku v. Sunmola Amola (1988) 2 NWLR (Part 75) 128 at P. 155.’

All other issues raised and argued in this appeal apart, and as stated by Dagogo Manuel J in his judgment, the main issue in this case is to determine the legal propriety in the grant of probate on the Will the validity of which was challenged by caveat and which was still to be determined by an appellate court…………………

As correctly stated in Exhibit A by Allagoa J that the jurisdiction of the High Court of Rivers State is governed by Section 17 of the High Court Law which provides that –

PAGE| 9

‘The jurisdiction of the Court in probate causes and matters shall, subject to the law and to any rules of Court, he exercised in conformity with the law and practice in force in England on the thirteenth day of September, 1960.’

The learned trial judge further stated –

‘The Rules of Court Order 51 Rules 1 – 46 are very limited in scope and are more concerned with directions which the court may make and not to the practice. In view therefore of the provisions of Section 17 above quoted, it would then be necessary to fall on the English Law and Practice in force on 30th September, 1960. This is contained in TRISTRAM AND /COOTES ON PROBATE PRACTICE 23RD EDITION p. 612 – 630.

Guided by the ratio decidendi in Lord Trimlestown v. Lady Trimlestown (1830) 162 ER 1145 particularly at 1147, the Court of Appeal was right when it stated thus-

‘A caveat’ according to Tristram and Cootes is a notice in writing lodged in the principal Registry … or in any district probate named therein without notice to the person who has entered the caveat. No grant can be sealed if the registrar has knowledge of an effective caveat’ (page 527). After the entry of caveat, a warning or notice to appear is issued against the caveator by the party whose application for a grant has been stopped, and the appearance to such warning by the caveator will disclose the names and addresses of the parties and their respective interests in the estate of the deceased, and with this information it is open to either of them if the interests conflict, to commence an action against the other for the purpose of establishing his own claim.’

It is not in doubt from the facts of this case that the application for the grant of probate cannot but be in solemn form.

The caveator was entitled to be put on notice by 5th defendant before proceeding to make the grant. It was irregularly obtained. The trial court was therefore right to revoke it and the Court of Appeal correctly affirmed it. See Akinyemi Adesanya & Olatunji Alli v. Sunbo Olatunjji & Benbele Olatunji (1970) All NLR 551.

The appeal therefore lacks merit and I hereby dismiss it with N10,9000.00 costs to the Plaintiff/Respondent.

---

SC. 71/1993

Da Kabirikim V. Hon. Justice Luke Emefor (2009)

LAWGLOBAL HUB Lead Judgment Report

Walter Samuel Nkanu Onnoghen. JSC

This is an appeal against the judgment of the Court of Appeal, Holden at Jos in appeal NO. CA/J/76/99 delivered on the 22nd day of November, 2000 in which the court dismissed the appeal of the present appellants against the judgment of the High Court of Plateau State, Holden at Jos, in suit No. PLD/ J382/91 delivered on the 6th day of April, 1996 against the appellants who were the plaintiffs in that court. By paragraph 11 of their statement of claim, the present appellants, as plaintiffs, claimed the following reliefs: ‘WHEREFORE the plaintiffs claim against the Defendants jointly and severally:– (a) A Declaration that the power conferred on the Military Governor of Plateau State by section 2(1) of the Commission of Inquiries Law Cap. 25 Laws of Northern Nigeria applicable in Plateau State of Nigeria did not entitle the Military Governor to commission the 1st to 3rd and 6th Defendants to inquire into the matters set out in the terms of reference and to decide or determine ownership of Kabong Ward,Tudun Wada, Dong Wards and Kabong, Dong Wards. (b) A Declaration that the setting up of the Commission of Inquiry and its terms of reference are unconstitutional, null and void and is of no effect whatsoever in that:– (i) There is no dispute whatsoever as to what district the three (3) villages Kabong, Tudun Wada and Dong belong. (ii )determination of ownership of the three (3) villages is not within the competence of a Commission of Inquiry (c) An order setting aside the instrument constituting the Commission of Inquiry with respect to the terms of reference set out therein. (d) An order of injunction restraining the 1st to 3rd and 6th Defendants from submitting any report to the 4th and 5th Defendants or the Military Governor of Plateau State pursuant to the Commission complained of. (e) An order of injunction restraining the 4th and 5th Defendants from acting on or in any way taking any action on any report submitted by the 1st to 3rd and 6th Defendants in respect of the Commission complained of.” The terms of reference of the Commission included: (1) To determine the ownership of the disputed areas in the three districts, and (ii) To make any recommendation that the Commission might consider necessary to diffuse land disputes in general within Jos Metropolis.’ The Commission of Inquiry assigned the above terms of reference was established by the Military Governor of Plateau State under the powers conferred on him by the provisions of section 2(1) of the Commission of Inquiry Law Cap. 25 Laws of Northern Nigeria applicable to Plateau State. It is the case of the appellants that the above quoted terms of reference is ultra vires the Commission of Inquiry and therefore null and void in so far as it infringes on the jurisdiction of the High Court of Justice of Plateau State under the Constitution which has the jurisdiction to inquire into and determine ownership of land in Plateau State. On the other hand, the respondents contend that the 5th respondent has unfettered power to set up the Commission of Inquiry to look into the disputed area of Du, Gwong and Gyel Districts; that there has been disputes as to under which district the three wards of Tudun Wada, Kabong and Dong belong which has adversely affected effective administration of the area in terms of collection of taxes, census and demarcation of election wards; that it is for the public welfare and peace that the 5th respondent had to constitute the Commission of Inquiry. Now, section 2( 1) of the Commission of Inquiry Law, Cap 25 Laws of Northern Nigeria applicable to Plateau state provides as follows:– ‘The Governor may, whenever he shall deem it desirable issue a commission appointing one or more commission, and authorizing such commissions, or any quorum of them therein mentioned, to hold a Commission of Inquiry into the conduct of any officer in the Public Service of Northern Nigeria or of any chief or the management of any department of the public service or any Local Institutions or into any matter in respect of which in his opinion, an inquiry would be for public welfare. ‘ In determining the suit, the trial court found and held at pages 170 – 171 of the record, inter alia, as follows:- ‘From the evidence before me as given by PW1, PW2, PW3, DW1, DW2, and DW3 I cannot pretend that there has not been disputes as to how the village area or wards of T/Wada, Kabong and Dong can be effectively administered or managed by the District Head of Du (PW2) Gwong (DW2) and Gyel. I do not agree with the plaintiffs that there is no dispute whatsoever as to what district the three villages of Tudun Wada, Kabong and Dong belong. It is not the determination of the ownership per se that should be seen as the pre-occupation or concern of the 5th defendant. The question is the nature of the dispute in the three villages that has made the Commission of Inquiry necessary to go into the conduct of the claim of the three Districts of Du, Gwong and Gyel. That they made this claim of ownership is ampefully (sic) exemplified in the frustration during trial census of 1990 and Local Government of (sic) election of 1991. They were never held in the area because of the existing dispute, collection of community and cattle taxes suffered because of this. References were being meticulously made to Exhibits 2- 5, 6, 7 8 and 9 as if this court is to decide and confirm the ownership of the village areas in dispute. No, I am to decide whether in view of the contents of those documents the 5th defendant is justified by law to establish the Commission of Inquiry………….. ,………….. – Having held that the 5th defendant has the power to set up the Commission of Inquiry it is needless to pronounce on the jurisdiction of the High Court as provided by S.6(b) and S.236 of the 1979 Constitution of the Federal Republic of Nigeria, as amended. These sections do not oust the jurisdiction of the Commission of Inquiry as set up and given Terms of Reference.. … ..’ The appellants, who were the plaintiffs at the trial court were not satisfied with the decision of the trial court dismissing their claims and appealed to the Court of Appeal which formulated two issues out of the many issues formulated by the parties for determination of the appeal. The two issues are as follows:– ‘(1) Whether the Military Governor of Plateau State had powers to set up the Commission of Inquiry under section 2(1) of the Commission of Inquiry Law Cap. 25 of the Laws of Northern Nigeria, 1963 with the terms of reference to determine the ownership of Kabong, Tudun Wada and Dong. See grounds 4, 5, 6 and 7 of the appeal. (2) Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs and the totality of the evidence led by the parties before dismissing the plaintiffs claim. See grounds 1, 2, 3 and 4 of the appeal. ‘ The lower court resolved the above issues against the appellants and consequently dismissed the appeal resulting in the instant further appeal to this Court, the issues for the determination of which have been formulated by C.A. AJUYAH, ESQ, learned counsel for the appellants in the appellants brief of argument filed on 21/4/04 and adopted in the argument of this appeal on the 24th day of April, 2009, as follows:- ‘(i) Whether the Learned Justices of the Court of Appeal were right in holding that the phrase ‘any matter or thing’ used in S. 2 of the Commission of Inquiry Law, Cap 25 of the Laws of Northern Nigeria, 1963 cannot be read ejusdem generic to the specific matters mentioned in the section? (ii) Whether the Learned Justices of the Court of Appeal were right in holding that Governor of Plateau State did not act ultra vires section 2(1) of the Commission of Inquiry Law, Cap. 25 Laws of Northern Nigeria, 1963 in appointing and authorizing the commission to inquire into ownership of the three villages? (iii) Whether the 2nd issue formulated and determined by the Learned Justices did not lead to a miscarriage of justice of this case?’ F.B. LOTBEN (MRS), learned counsel for the 1st, 2nd, 3rd, 4th, 5th and 6th respondents also formulated three issues similar to those by the appellants, while the learned Senior Counsel for the 7th respondent, G. OFODILE OKAFOR Esq, SAN in his brief of argument filed on 13/10/04 adopted the three issues formulated on behalf of the appellants. In arguing issues 1 and 2 together, learned Counsel for the appellants referred to the provisions of section 2(1) of the Commission of Inquiry Law and the terms of reference and submitted that section 2(1) of Cap 25, Laws of Northern Nigeria, 1963 does not confer jurisdiction on the Governor to appoint and authorize a commission to enquire into the ownership of land; that the subjects for which an enquiry can be appointed are clearly stated in S. 2( 1) of the Law which do not include ownership of land; that the phrase ‘any matter or thing’ relates to ‘any matter or thing’ ancillary to the matters or thing earlier referred to in the subsection; that by the canons of construction, a sentence must be read as a whole with each part being dependent on the other; that since section (2) 1consists of one sentence which gives single power, it has to be construed as a whole, relying on Barclays Bank DCO vs Yesufu Alabi Adigun (1967) 1 ANLR (pt 3) 536. Finally, learned Counsel submitted that by sections 6(6) and 236 of the Constitution of the Federal Republic of Nigeria, 1979, it is the High Court of a state that has jurisdiction to hear and determine the issue of ownership of land and urged the court to resolve the issues in favour of the appellants. PAGE| 7 On behalf of the 1st – 6th respondents, it is the submission of F.B. LOTBEN (MRS) in the brief of argument filed on the 24th day of October, 2005 that by the provisions of section 2( 1) of the Commission of Inquiry Law, Cap 25, Laws of Northern Nigeria, applicable in Plateau State, the Governor has the powers to constitute a Commission of Inquiry to look into any issue for public welfare; that the ejusdem generis rule of interpretation is inapplicable to the provisions of section 2(1) of the said Cap 25 in that each item listed therein is independent of the other due to the use of the word “or” after each item, relying on section 18(3) of Cap 192, Laws of the Federation of Nigeria,1990;that there is no category or class into which things of the same kind as specified in the section can be fitted, relying on Onasile v.s Sami(1962) NSCC 196 at 197;F.R.N vs Ifegwu (2003) 5SCNJ 217 at 229;Ndoma-Egba vs Ogor (2004) 2SCNJ 117 at 123;that the Governor can constitute a Commission of Inquiry to look into any issue that a threat to peace and order in the state which may include disputes over communal land. On the issue as to the powers of the commission to determine ownership of land, learned Council submitted that the terms of reference of the commission was not to determine the ownership of individual/village land but to determine whether what district the disputed land areas fell, for ease of administration; that the combined effect of sections 6(5) (h), b(6) (b),6(4) (a) and 236(1) of the 1979 Constitution points to the fact that the Governor of Plateau state can set up a Commission of Inquiry to look into ownership of disputed land areas under section 2( 1 ) of Cap 25 supra to avoid any rift detrimental to the state and urged the court to resolve the issues against the appellants. On his part, G. OFODILE OKAFOR Esq, SAN, learned Senior Counsel for the 7th respondent agrees with the submission of learned Counsel for the 1st – 6th respondents that each item mentioned in section 2( 1) of Cap 25, supra is independent of the others and that the ejusdem generic rule is not applicable to the facts of this case; that section 236 of the 1979 Constitution does not confer exclusive jurisdiction on the High Court of a State, but unlimited jurisdiction; that the commission was established to determine under which district or districts the three villages of Kabong, Tudun Wada and Dong belong, not ownership of a particular piece of land by any of the villages; that the determination is more administrative than judicial and urged the court to resolve the issues against the appellants. The two issues under consideration are the main issues in the appeal. I had earlier in this judgment reproduced the provisions of section 2( 1) of Cap 25 and the terms of reference of the Commission of Inquiry. The issue is simply whether the ejusdem generis rule of interpretation applies to the provisions of section 2(1) of Cap 25. The lower courts have held that it does not.Before determining the issue of the applicability of the ejusdem generis rule to the facts of this particular case, we need to know what is meant by ejusdem generis rule. In Blacks Law Dictionary, 8th Edition, defines the rule thus:– ‘Under ejusdem generic cannon of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. ‘ PAGE| 9 There is however an exception to its application as stated in the said dictionary as follows:– ‘The rule, however does not necessarily require that the general provision be limited in its scope to the identicalthings specifically named. Nor does it apply when the context manifest a contrary intention.’ In the case of Buhari YS Yusuf (2003) 14 NWLR (pt. 841) at 486 – 487 this court, per Uwaifo, JSC stated the position of the rule as follows:– ‘Ejusdem generic rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words which follows special words used in a statutory provision or document within the genus of those special words. In the construction of statutes therefore, general terms following particular ones apply to such persons or things as are ejusdem generic with those understood from the language of the statute to be confined to the particular terms. ‘ At the risk of repetition, lets take a close look at the provisions of section 2(1}of Cap 25, which calls for interpretation. It reads:- ‘The Governor may whenever he shall deem it desirable issue a commission appointing one or more commissioners or quorum of them therein mentioned to hold a Commission of Inquiry into the conduct of any officer in the PAGE| 10 public service of Northern or of any chief or the management of any department of the public service or of any local institution or anv matter in respect of which in his opinion an inquirv would be for the public welfare’ emphasis supplied by me. From the above provisions, it is clear that the Governor is empowered to appoint and authorize a commission to inquire into the conduct of:- (a) any public officer in the public service of Northern Nigeria or (b) any chief or (c) the management of any department of the public service, or (d) any local institution or (e) any matter in respect of which in his opinion an inquiry would be for the public welfare. It is now settled law that the word ‘or’ is disjunctive depending on the context as under certain circumstances the word ‘and’ would be read in place of ‘or’ so as to carry out the intention of the legislature. For the general interpretation of the word ‘or’, see section 18(3) of the Interpretation Act, Cap 1 92, Laws of the Federation of Nigeria, 1990 which states that ‘the word ‘or’ and the word ‘other”shall, in any enactment, be construed disjunctively and not as implying similarity.’peace and good governance of the state. It follows therefore that the expression ‘any matter’ used in section 2( 1) of Cap 25 does not relate to nor is it limited to ‘any matter’ ancillary to matters earlier mentioned in the said section 2 sub-section 1supra. It is the submission of learned counsel for the appellants that the provision of section 2( 1) of Cap 25 does not empower the Governor to appoint a Commission of Inquiry to inquire into ownership of land as the power to inquire into land ownership belongs exclusively to the court under sections 6(6) and 236( 1 ) of the 1979 Constitution. Now sections 6(6) (b) and 236 of the 1979 Constitution provide as follows:– ‘6(6) (b): The judicial powers invested in accordance with the aforegoing provisions of this section- – PAGE| 12 (b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person…………. ‘ ‘236(1): – Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person. ‘ There is no doubt at all that by the above provisions, the PAGE| 13 High Court of a State is constitutionally clothed with unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim, is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person. It is equally clear that the unlimited jurisdiction so conferred includes the jurisdiction to hear and determine land ownership when properly brought before the court. However it is also very clear from section 2( 1) of Cap 25 supra that the Governor of Plateau. state has the power to appoint a Commission of Inquiry to inquire into any matter including ownership of disputed land forming part of an administrative area in respect of which, in his opinion, an inquiry would be for the public welfare. It is my further view that a Commission of Inquiry appointed with the terms of reference as in the instant case does not interfere with the jurisdiction of the High Court as conferred by section 236( 1) of the 1979 Constitution. On issue 3, learned Counsel for the appellants submitted that the lower court was in error when it formulated the second issue which it used in determining the appeal; that the formulation of that issue led to a miscarriage of justice; that the issue raised by the appellants in the lower court did not call for evaluation of evidence but whether exhibits 2 to 6 truly established the district to which. the three villages belonged and that since the trial court failed to consider those exhibits, the lower court was under a duty to do so; that exhibits 2 to 6 clearly show that there is no dispute as to where the three villages belong and urged the court to resolve the issue in favour of the appellants. On the other hand, learned Counsel for the 1st – 6 th respondents submitted that the issue in question was formulated by the lower court having regard to the pleadings of the parties and the evidence thereon; that the court is empowered to formulate issues if it would serve the ends of justice, relying on Edem vs Cannon Balls Ltd (2005) All FWLR (pt.276) 693; that the lower court did consider exhibits to 2 to 6 in its judgment particularly at page 267 of the record and urged the court to resolve the issue against the appellants. Learned Senior Counsel for the 7th respondent submitted that the Court of Appeal is at liberty to formulate issues different from those formulated by the parties if that will serve the end of justice, relying on Ogunbayi vs Ishola (1996) 6 NWLR (pt. 452) 12 at 24; that some of the grounds of appeal before the lower court, particularly grounds 1, 4, 6 and 7 questioned the evaluation of evidence by the trial court, contrary to the submission of learned Counsel for the appellants; that the lower court carefully evaluated the evidence on record and did find that exhibits 2 to 6 were tendered to show the districts to which Tudun Wada, Kabong and Dong belong, but that exhibits 8 and 9 show that there is dispute as to that fact and urged the court to resolve the issue against the appellants. To begin with, it is not correct that the issues before the lower court as formulated by the appellants did not include evaluation of evidence. Issues are formulated from the grounds of appeal filed. In the instant case, appellants did not abandon any of the seven grounds of appeal filed out of which learned Counsel for the appellants himself formulated four issues. The most important issue relevant to the question of evaluation of evidence is issue (i) which complains as follows:- ‘ (i) Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs before dismissing it?’ The question is : How can a court ‘properly and/or adequately’ consider the claim(s) of a party without resort to evaluation of the evidence produced at the trial in relation to the claim(s). There is no way issue (i) can be resolved properly and satisfactorily without evaluating the evidence called by the parties at the trial. It is very clear, therefore that appellants issue (i) called for evaluation of evidence including exhibits 2 to 6 tendered by the appellants and exhibits 8 and 9 tendered by the respondents in addition to oral testimonies of the witnesses. The court, being an impartial arbitrator must always consider both sides of a case before coming to a conclusion not just the case of one of the parties as to do so will result in grave injustice. The next question is whether the issue 2 formulated by the lower court is really different from issue (i) formulated by the learned Counsel for the appellants and reproduced earlier in this judgment. Since learned Counsel for the appellants is not complaining against issue 1 formulated by the lower court, it is irrelevant and therefore not reproduced. What is relevant is issue 2, which is as follows:– ‘2 Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs and the totality of the evidence led by the parties before dismissing the plaintiffs claim.” See grounds 1, 2, 3 and 4 of the appeal.” It should be noted that the lower court even indicated the grounds of appeal from which the issue in question arose. It is not the case of the appellants that the said issue 2 so formulated by the lower court does not arise from the grounds of appeal filed by the appellants. In any event, it is settled law that an appellate court has the duty to formulate issues different from those formulated by the parties if it will serve the ends of justice – See Ogunbiyi vs Ishola (1996) 6 NWLR (pt. 452) 12 at 24. Now looking at appellants’ issue (i) earlier reproduced in this judgment and issue 2 formulated by the lower court supra, are the two issues not the same in reality? The answer is very much in the affirmative. They are the same. What the lower court did was simply to add the following words to appellants issue (i), to, wit: ‘…. and the totality of the evidence led by the parties … ‘ to state the obvious. As stated earlier in this judgment, you cannot determine the issue as to whether a party established his claim without evaluating the evidence both oral and document any tendered in prove and defence of the claim. It is in resolving the issue before it that the lower court proceeded to evaluate the evidence and in fact considered exhibits 2 to 6 which were tendered by the appellants and exhibits 8 and 9 tendered by the respondents. The court found, inter alia, as follows:– In this case, the appellants in proving their case called evidence and tendered Exhibits 2 to 6 to show that the Districts to which Tudun Wada, Kabong and Dong belong had been defined; and that there was no dispute as to ownership in the three districts. The respondents called evidence in rebuttal and tendered Exhibits 8 to 9, showing details of protests, petitions and complaints received by the 5th Respondent from different various interest groups with respect to the areas in dispute. ‘ The court held that ‘while it is true that Exhibits 2 to 6 tendered by the Appellants are subsidiary legislations showing or defining the Districts to which Tudun Wada, Kabong and Dong belong, that fact does not rule out the fact that there can now (sic) be dispute and indeed that there are now disputes, be it in respect of administration or ownership of the areas ………… Faced with Exhibit 2 to 6 and the volume and variety of complaints and petitions contained in Exhibit 9, I do not think the 5th Respondent could reasonably and responsibly close his eyes to the disputes. He must do something and which he did by way of setting up the Commission of Inquiry now being challenged. On the whole, I think the Learned Trial Judge properly and adequately considered the claims of the Appellants and the totality of evidence before the court…………….. ‘ See pages 267 – 268 of the record. I agree with the lower court completely as the above exercise and conclusion cannot be faltered in any way having regards to the evidence on record. It is therefore clear that the issue under consideration has no merit and is consequently resolved against the appellants. – In conclusion, I find no merit whatsoever in this appeal which is consequently dismissed by me with N50,000.00 costs in favour of each set of the respondents against the appellants. Appeal dismissed. Walter Samuel Nkanu Onnoghen, Justice of the Supreme Court CHARLES A. AJUYAH Esq, SAN for the appellants with him are Messr B.G.L. GHOJI and E. EMAKPOR. E. PWAJOK Esq. A-G PLATEAU STA TEfor the 1st – 6th respondents with him F.B. LOTBEN (MRS) DCL PLATEA U STATE. C. U EKOMAKU Esq with Z. C. OBI Esq for 7th respondents. JUDGMENT (Delivered by MAIlMUD MOHAMMED, JSC) This appeal is against the decision of the Court of Appeal Jos Division given on 22nd November, 2000, affirming the decision of the High Court of Justice Plateau State Jos, on the interpretation and application of the provisions of Section 2 of the Commission of Inquiry Law of the Laws of Northern Nigeria applicable in Plateau State with regard to the powers of the Military Governor to establish a Commission of Inquiry under the law. The subject matter of the dispute were three wards or villages of Kabong, Tudun Wada and Dong. Two Districts in two Local Government Areas of Jos North and Jos South respectively of the State were each laying claim to the three wards or villages. The Military Governor of the State therefore constituted a Commission of Inquiry under the Law with terms of reference to submit report to him. The Appellants who felt aggrieved by the exercise of the powers of the Governor, challenged it at the High Court contending that having regard to the nature of the dispute, the provisions of the law were not applicable. The Respondents were of contrary view. The trial High Court after hearing the parties, found for the Defendants/Respondents. The Plaintiffs/ Appellants appeal to the Court of Appeal was dismissed hence the present appeal. The powers conferred on the Governor by Section 2 of the Law having regard to the subject ,matters upon which, the Commission of Inquiry could be established are very wide particularly taking into consideration of the general powers to do so by the Governor – ‘on any matter in respect of which in his opinion an inquiry would be for the public welfare.’ With this position of the law which is quite clear, I am in full agreement with my learnt brother Onnoghen JSC in his lead judgment just delivered, that the two Courts below were right in their interpretation and application of the law. Therefore I also dismiss this appeal with N50,OOO.OO costs to each set of the Respondents.

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SC.242/2002