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Daniel Awudu & Anor V. Rautha Daniel & Anor (2004)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A. 

On the 2nd of December, 1999, Andetur, J., sitting at the High Court of Justice of Taraba State of Nigeria, Wukari Division, delivered judgment in favour of the plaintiffs in suit No. TRSW/2/99.

In the action, the plaintiffs/respondents by their amended writ of summons had sought the following reliefs against the defendants jointly and severally:-

(a) A declaration that the plaintiffs under the Jukun native law and custom to which they belong, the 1st defendant bound to provide shelter for the plaintiffs who are his legitimate children.

(b) A declaration that the plaintiffs as children to the 1st defendant are entitled as of right under Jukun (Kente) native law and customs to inherit the said property from their said father.

(c) A declaration that the purported sale of the one which the plaintiffs were born and brought up and still occupy as their father’s compound is null and void and of no effect whatsoever for the reason contained in paragraph (a) above.

(d) A declaration that the purported sale of the said compound (property) by the 1st defendant to the 2nd defendant is void for want of authority and or consent of the plaintiffs who as members of the family contributed to the building of the houses in the property.

(e) Perpetual injunction restraining the defendants by themselves, their agents, servants, privies or whosoever claiming through themfrom ejecting or tampering with the plaintiffs’ peaceful possession and enjoyment of the said property.

(f) And such other orders the court may deem fit to make in the circumstance.

Both parties filed amended statement of claim and defence respectively and proffered evidence at the trial. The plaintiffs called six witnesses including the 1st plaintiff. The defendants called four witnesses including the two defendants.

A central issue in the pleadings and evidence before the court was the establishment of the customary law of the Jukun tribe relating to the duties of a father to his children to provide accommodation and maintenance, and the status of property on which the father had lived with his wife and his six children, born thereon, and lived all their lives and which he contrived to sell without providing them alternative accommodation or consulting them.

The two plaintiffs are the two oldest children of the 1st defendant. The 2nd defendant is a man to whom the 1st defendant sold the property wherein he resided, since 1968 to 1998, with his wife and the children. The plaintiffs brought the action in a representative capacity for themselves and their younger brothers and sisters.

The learned trial Judge made the following orders which embody his findings:

(a) That the 1st defendant, being the father of the plaintiffs is bound by the Constitution of the Federal Republic of Nigeria, 1979, and Jukun native law and custom to provide shelter to plaintiffs who are his legitimate children.

(b) That the plaintiffs, as children of the 1st defendant, possess the right to inherit the said property from the 1st defendant, upon the death of the 1st defendant under Jukun native law and custom.

(c) That the sale of the property by the 1st defendant to the 2nd defendant without the 1st defendant seeking and obtaining the consent of the plaintiffs before doing so and not obtaining their consent afterwards is null and void under Jukun native law and custom.

(d) That since the plaintiffs contributed to the development of the property as members of the family of the 1st defendant, the 1st defendant is bound to seek and obtain their consent to validly sell the property to the 2nd defendant.

(e) That the defendants by themselves, or their agents, servants, privies or whosoever called and claiming through them are perpetually restrained from ejecting or tempering with the peaceful possession and enjoyment of the property in any way at all.

(f) That the sum of N250,000.00 which the 2nd defendant has paid to the 1st defendant for sale of the property be refunded to the 2nd defendant.

Dissatisfied, the defendants have appealed to this court, filing five grounds of appeal.

For the appeal, parties filed and exchanged briefs of argument as required by rules of court. These they adopted at the hearing without further oral argument.

In his brief of argument, the appellants distilled five (5) issues for determination as follows:

“1. Whether the trial court took the advantage of seeing and hearing the witnesses and evaluated the evidence before it in reaching the decision it did.

2. And if not, whether the Court of Appeal cannot interfere with the finding of the said trial court.
3. Whether the suit being a suit in a representative capacity by the plaintiff, without leave of court, was competent.
4. Whether the property, the subject matter of the suit, could be termed a family land or property and so governed by the application of law of inheritance.
5. Whether the findings of the trial court of the native law and custom of the Jukun (Nyifon) as applied in this case is not repugnant to natural justice, equity and good conscience.”

On the other hand, the respondents settled 2 issues for determination as follows:-

“1. Whether or not, the capacity in which the plaintiffs initiated the suit rendered it incompetent without the leave of court.

2. Whether or not, the property in dispute qualified as a family property and therefore subject to the native law and custom of the Jukun tribe.”

The facts relevant to this appeal which I wish to recapitulate for better understanding of the issues in this appeal, show that the plaintiffs are the children of the 1st defendant by his wife of over 30 years marriage. They brought the suit on behalf of themselves and their other brothers and sisters. As can be gathered from the evidence on record, there are 6 legitimate children of the 1st defendant, 4 girls and 2 boys born to the 1st defendant by his wife whom he lived with for over 30 years till October, 1998, when he divorced her.

The 1st defendant had in 1967, bought a piece of land in Wukari town.

It was over time being developed by him starting from 1968. It was occupied as the family’s home from that year, by the 1st defendant, his wife, who is the mother of his children, and the children as each of them was born over the years. The 1st respondent was said to be aged between 1-1/2 and 2 years in 1968. The property is the subject matter of this suit arising from some events in 1998.

The relief sought by the plaintiffs arose as a result of their father, the 1st appellant’s decision to sell this property which he and his family had lived on from 1968 till 1998. Apart from the 1st plaintiff, then 1-1/2 and 2 years old in 1968, all the other children were born there and all the six children grew up therein. In 1998, their father, the 1st defendant divorced their mother, he was said to have proceeded that same year to sell this property to the 2nd defendant without their notification/consent and without providing them with alternative accommodation.

The 1st defendant claims that he notified them of the sale and they did not respond and that he provided them alternative accommodation, which they refused. Evidence shows that the accommodation said to have been provided was a farm house, being one of three round huts erected by the 1st defendant near his farm at Gidan Adamu, a village about 21 kilometres from Wukari town. Wukari is where the family had lived since 1968. The property in issue is in Wukari. The 1st appellant had been farming at Gidan Adamu in the past 10 years, while still living with the family at Wukari.

There is evidence that the younger children are still in secondary schools in Wukari and one in Jalingo. The farming village, Gidan Adamu has only one primary school. The 1st defendant occupies one of the round huts while his new wife occupies one. His evidence is that he left one for his children.

The plaintiffs claim that the 1st defendant, under Jukun native law and custom applicable to them, owed them as his children, a duty to provide them with a home and support and could not dispose of the property without their consent and without providing them with alternative accommodation. They also claimed that their father, the 1st defendant/appellant’s actions stemmed from hatred and his decision to punish them because he alleged that they took sides with their mother during the misunderstanding prior to his divorcing her.

The plaintiffs, by this action sought to void the sale of the property to the 2nd defendant. They state that apart from their claim to lodging under Jukun custom, they are entitled to remain on the property which they contributed in developing. This was where they were born and grew up, that in the absence of their father, they had a right to inherit same and their father who had an obligation to provide accommodation for them under their custom could not sell the only house where they had lived all their lives. They led evidence to show that their father had no other residence over the years. The 1st defendant on his part claimed that he provided them alternative accommodation but that the plaintiffs refused to accept it. He disputed the version of native law and custom set up by the plaintiffs regarding the right to sell the property. He led evidence to establish his version of the custom. The court below took evidence from the parties and their witnesses, he appraised and evaluated them and made findings.

The appellants complain in this appeal that the court below did not properly evaluate the evidence and take advantage of seeing and hearing the witnesses who testified before him.

A major bone of contention was the establishment of the native law and custom of the Jukuns regarding the sale of the property, of the type in issue.

Parties seem to agree that under the custom, a father is obliged to provide maintenance and accommodation for his children. This is evident from the testimony of defence witnesses who admit the existence of the custom asserted by the plaintiffs that a father has a duty to provide for his children. It is also deducible from the 1st defendant’s averment and evidence that he felt he provided plaintiffs alternative accommodation. What appears to be in issue is the status of that property at No. 40 Dongo Street, Wukari where the family had made their home all those years. Did it acquire the character of family property by the use to which it was put, although the land was initially purchased by 1st defendant personally?

The court below, after taking evidence came to a decision that it did and after considering various other issues, which arose in the suit, it gave judgment in favour of the plaintiffs.

I will now consider the issues for determination. I should think, combining the issues of the parties that the issues arising in this appeal can be more appropriately identified as follows:-

1. Whether the suit brought in a representative capacity by the plaintiffs without leave of the court is incompetent. – Ground 2.
2. Whether the trial Court properly evaluated the evidence before it before arriving at the decision which it did and if not whether the Court of Appeal can interfere with the finding of the said court. – Grounds 1, 3, 4 and 5.

Within issue 2, above, the questions whether the applicable native law and custom of Jukun people is proved, and whether the trial Judge took advantage of seeing and hearing the witnesses and whether the property in controversy qualifies as family property are encapsulated. In this judgment, I will consider these two issues.

Issue No.1 challenges the capacity of the plaintiffs to bring the action in a representative capacity without the leave of the trial court.

For the appellants, it was acknowledged that the plaintiffs sued for themselves and the other children of the 1st defendant, but that no leave was sought and obtained before the writ was issued as required by the Rules of Taraba State High Court. In learned Counsel’s view, this makes the suit incompetent, citing Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 595; (1962) 2 SCNLR 341.

For the respondents, their learned Counsel countered that although, there is nothing on the records to show that leave was sought and/or obtained, that such failure does not vitiate the suit so as to render it incompetent. Counsel pointed out that the pleadings and the evidence adduced clearly show that the action was brought and fought in a representative capacity. He relied on Afolabi v. Adekunle (1983) 2 SCNLR 141 at 150 and 151, wherein the Court of Appeal amended the writ of summons to reflect the representative capacity, and the Supreme Court upheld that, being that the evidence and the pleadings show that the action was in a representative capacity. Also Ezera v. Ndukwe (1961) 1 All NLR 564 at 593 & 594 cited.

Counsel urged this court to invoke its powers under section 16 of the Court of Appeal Act in favour of the respondents.

The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See Ogamioba v. Oghene (1961) 1 All NLR 59; (1961) 1 SCNLR 115; Nsima v. Nnaji (1961) 11 All NLR 441.

Various States High Court Rules in Nigeria have enacted provisions which are to the effect that, where more persons than one have the same interest in one suit, one or more such persons may, with the approval of the court be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.

Taraba State High Court Rules are in similar terms – see Order II Rule 8 thereof.

I should think that that rule, stated above in its words and application is permissive. The rule should be seen as not rigid but as flexible. It is often described as a tool of convenience which should be applied, not in any strict or rigorous sense but according to its permissive scope. See Anatogu v. East Central State (1976) 11 SC 109; the courts, I believe, for this reason, have come to the conclusion that failure to comply therewith ought not to make the action incompetent.

In his usual picturesque language, Tobi, JCA (as he then was) stated that “obtaining leave, is not a do or die affair”. See Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557 at 584. The case of Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 is a case where the Supreme Court had outlined the principles applicable, where a party failed to obtain leave to sue in a representative capacity. It is as stated by Obaseki, JSC at page 600 of the report thus: -“It is settled law that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.”

Our courts do not easily wish to deprive citizens who come before them of their right of action. I never would.

In promotion of these principles, the apex court had also held in Afolabi v.Adekunle (1983) 8 SC 98 at 102, also reported in (1983) 2 SCNLR 141 at 150 & 151, that once pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial court can justifiably properly enter judgment for or against the party in that capacity, even if amendment to reflect that capacity had not been applied for and obtained.

Thus, it is required that a plaintiff should show on his writ and his pleadings that he is suing in a representative capacity. Yet, even at that where a writ of summons is defective, to ensure that substantial justice is done, the courts, rather than declare the suit incompetent, would allow amendment of the writ which is defective only in its failure to state the capacity in which the action is brought. See Vulcan Gases Ltd. v. Okunola (1993) 2 NWLR (Pt. 274) 139; Chief Gbogbololu of Vakpo v. Chief Akulcome (1941) 7 WACA 164.

Applying the foregoing principles, I would not declare the action incompetent, even though it is not evident that leave was sought and/or obtained before the plaintiffs instituted their suit in a representative capacity, for themselves and their younger brothers and sisters. The principles in the locus classicus on when a court can be said to be competent, the case of Madukolu v. Nkemdilim (supra) cited by the appellants are not breached. It sets out the operative principles per Brett F.J., in these terms, that a court is competent when –

“(1) It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another.

(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”

It cannot be correctly said that the action is incompetent or the proceeding a nullity for failure to apply and/or obtain leave to sue in a representative capacity. It could very well pass for a mere procedural irregularity, curable by amendment.

It is not in doubt that the two plaintiffs and their other four siblings whom they represent are children of the same parents. Their father is the 1st defendant, against whom they are all proceeding, claiming a common right under the custom applicable to them all, being Jukuns, and in respect of the same property where they had all been born (except the 1st plaintiff), and had lived all their lives between 1968 and 1998, with both their parents. There is therefore no doubt that all the six children have a common interest, and claim the same right and remedy in their writ of summons and statement of claim.

In the action, they expressed their desire to sue in representative capacity and so stated in the processes filed and served. They fought the suit in that capacity as the evidence shows.

The defendants also defended the suit in the notion that it is a representative action wherein the plaintiffs for themselves and their other brothers and sisters were claiming their rights under the Jukun native law and custom. They have not in any way been misled.

On the authorities, this is a good case justifying the capacity in which the judgment was given in the same notion as the parties that the action was brought as a representative action and fought as such by both parties. It is not one to be declared incompetent or null and void and the defendants/appellants suffer no detriment thereby. It may be pointed out here, that taken as a procedural irregularity, failure to obtain leave as permissively required by the Rules of court ought to have been raised at the earliest by the defendants after the processes were served on them. It would be too late in the day to raise it now.

It is observed reading pages 28 and 44 of the records, that the appellants made some effort at raising the issue of incompetence in the course of the proceedings at the lower court, but failed to pursue the motion dated 23/5/99 which they filed. At page 44 of the records, it is shown that Mr. Ghana, learned Counsel for the defendants mentioned that motion filed on 23/5/99, seeking to strike out the suit for incompetence for failure to obtain leave to sue in a representative capacity. He said he would let the motion be till he confirmed, “if the plaintiffs were authorised to sue as representatives”. This was on 24/5/99.

Mr. Ghana never brought it up again. It was not argued or ruled upon.

The issue did not form part of the judgment now appealed against. It has been addressed in this judgment because of the jurisdictional garb in which it is clothed. However, it is not such an issue of jurisdiction as would vitiate the proceedings and nullify the judgment.

This issue is determined against the appellants. Ground 2 of the grounds of appeal from which the issue was distilled therefore fails.

Issue No.2:

It is observed that the respondents did not distill any issues from grounds 1, 4 and 5 of the grounds of appeal. Their Counsel however made submissions relating thereto in their issue No.2 which deals with the status of the property in issue, (see pages 3-4 of the respondents’ brief of argument) also dealt with in appellants’ issue No.4. I will hereunder consider all these, together with appellants’ issues 1 and 2.

In respect of the issue, which puts to question the evaluation of the evidence of witnesses by the learned trial Judge, learned Counsel for the appellants pointed out that the evidence of custom was given by PW1 and PW2 and by the defence witnesses. These witnesses gave evidence of the native law and custom of the Jukuns. Counsel set out what the learned trial Judge said when he tried to resolve the issue of their status which he condemned. He submitted that the learned trial Judge’s finding was perverse and unreasonable on the evidence and the law and on this, the Court of Appeal can interfere. Reliance was placed on Akinola v. Olowu (1962) 1 SCNLR 352; (1962) 1 All NLR 224; Sagay v. Sajere (2000) 6 NWLR (Pt. 661) 360; (2000) 77 CRCN 742 at 1114 Eigbejale v. Oke (1996) 5 NWLR (Pt. 447) 128; (1996) 5 SCNJ 49 at 65.

Learned Counsel further submitted that the learned trial Judge unduly placed weight of evidence on the defendants by accepting the evidence of the plaintiffs before consideration and evaluating the evidence of the defendants. Cited Intercontrator Ltd. v. UAC (Nig.) Ltd. (1988) 2 NWLR (Pt. 76) 303; (1988) NSCC Vol. 19 (Pt.737). He concluded that such approach and direction caused misplacement of burden on defendant that resulted in miscarriage of justice (sic).

For the respondents, on the issue of the status of the property in question, learned Counsel Mr. Igbanoi also referred to the finding of the learned trial Judge thereon, as well as his finding on the issue of alternative accommodation for the children of a family under Jukun native law and custom and the issue of sale of the property without notice or consent of the children. Counsel then submitted that these are findings of facts made upon a proper evaluation of the pleadings and evidence before the trial court and should not be disturbed by this court, there being no legal basis for that.

Reiterating the principles that the evaluation of evidence and the ascription of probative value are the primary functions of the trial court who saw, heard and assessed the witnesses, he submitted that where, as in this case, the trial court clearly evaluated evidence and justifiably appraised the facts, it is not the business of the appellate court to substitute its own views of the facts.

He further submitted that once there was, as in this case sufficient evidence on record from which the court made its findings of fact, the appellate court cannot interfere. He relied on:- Fasikun II v. Oluronke II (1999) 2 NWLR (Pt. 589) 1 at 27-28, para. G-B; Ogunderu v. Adebayo (1999) 6 NWLR (Pt. 608) 684 at 693, para. D-H; Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) 639 at 646 para. B-C.

He submitted that the trial court in this case rightly availed itself of the advantage of seeing and hearing the witnesses, watching their demean our and arrived at the appropriate conclusions. The findings could not be faulted and the fact of the status of the witness does not detract from the crucial point that the court found him in its evaluation an unreliable witness.

He submitted that the appellants have not shown how the finding is wrong or perverse and it cannot be upset. Reliance was placed on Onyejekwe v. Onyejekwe (1999) 2 NWLR (Pt. 596) 482 at 500-501; Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 511, para. C-G; Okino v. Obanebira (1999) 13 NWLR (Pt. 636) 535 at 565-570.

Learned Counsel for the respondents urged us to disregard the appellant’s version of Jukun Kente (Nyifon) native law and custom which has the effect of throwing children into trauma and causing other inconveniences. Such a custom he concluded, is the one woefully repugnant to natural justice, equity and good conscience, not that which seeks to protect innocent children from being rendered homeless and from psychological trauma and stress, such as was found by the trial court.

It appears to me that the central questions to determine, having regard to the complaint of the appellants and submissions of counsel for the parties are: Whether the court below had properly evaluated the evidence before him, particularly that of the defence witnesses, relating to the custom of the Jukuns regarding the obligation of a father to his children, to provide them accommodation, whether the property in question can be regarded as family property, and was the decision of the court below perverse.

It is trite law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial court. – Ifer v. Ikyanyong (2001) 4 NWLR (Pt. 703) 324; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1 at 2

Where the trial court fails to evaluate or to properly evaluate the evidence adduced before him and miscarriage of justice thereby occurs, it calls for the interference of the appeal court which is obliged to interfere and evaluate or re-evaluate the evidence – Adeleke v. Iyanda (supra), Woluchem v. Gudi (1981) 5 SC 291 or (1981) NSCC 216; Folorunsho v. Adeyemi (1975) 1 NMLR 128; Balogun v. Agboola (1974) 10 SC 111; Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 SC.

What the evaluation of evidence entails or how the trial court discharges that primary duty has to do with the trial Judge’s sense of justice in the terms that he has to receive admissible evidence, assess and give it probative value and finally, make specific findings from the evidence. Wrong facts stated and/or wrong, principles of law applied by the court are inimical to justice. Therefore, the trial court must carefully examine the facts, understand and appreciate them in relation to the issues involved before resolving them.

In Adeleke v. Iyanda (supra) Uwaifo, JSC states at page 20, that the trial Judge must not impair the evidence placed before him by inadequate evaluation. He should endeavour to avoid vitiating the case presented by the parties through his own stated facts or applied principle of law.

Unless the trial Judge observe these rules and he takes a decision which is perverse, he invites the appeal court to interfere with his performance of that singular duty placed on him by law. The duty is based on the fact that he it is, who has the advantage of seeing and observing the witnesses’ demeanour, candour or partisanship as the case may be, their integrity, manners and comportment and assessing the background from which the witnesses testify while testifying and drawing necessary inferences. These are advantages, which are not available to the appeal court. See Woluchem v. Gudi (supra) at p.229; Onowan v. Iserhien (1976) NMLR 263.

The other side of the coin is that, if the trial court has without doubt undertaken a proper appraisal and evaluation of the evidence before him, the appeal court ought not to embark on a fresh appraisal only to substitute its own views for the views of the trial court. Folorunsho v. Adeyemi (1975) 1 NMLR 28; Balogun v. Agboola (1974) 10 SC. 111.

In other words, if the trial court can be said to have satisfactorily performed its primary function to evaluate evidence, the appeal court has no business interfering – Atolagbe v. Shorun (supra); Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1; Shell BP v. Cole (1978) 3 SC 183.

It must be noted that it is where the issue is not one involving the credibility of witnesses, but non evaluation or improper evaluation or appraisal of evidence before the lower court that the appeal court is in as much a good position to evaluate the evidence as the trial court. See Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643 at 673 SC.

In this matter, the credibility of witnesses is involved so is their demeanour in the witness box.

In any event, it is clear to me that in the course of considering the issues which he determined, the learned trial Judge carried out extensive evaluation of the evidence of the witnesses – (see page 125-136 of the records). This enabled him make findings of facts that determined the issues involved. Thus, even if the charge of non-evaluation is laid at the door of the court below, it is not proved. The records bear testimony that there was evaluation. Having in the light of all the foregoing considered the evidence on record, the trial Judge’s evaluation thereof and his findings, I am not convinced that he was wrong, first in the method which he adopted in evaluating the evidence, secondly, in his evaluation and his findings.

The system to follow in evaluating evidence is a matter of choice of method for the trial Judge. It is his to determine, whether to summarise all of the evidence tendered by all the witnesses of the opposing parties before evaluating, followed by findings, or on the alternative, to take each witness, summarise his evidence, and immediately evaluate same before taking up the next witness. In this matter, the learned trial Judge had adopted the latter method. After a review of each witness’s testimony, he immediately recorded his impression of him of his demeanour, comportment, even partisanship, his candour, credibility, etc. He dealt with each witness in that manner.

In my view, it conveys nothing condemnable or any miscarriage of justice.

On the issue of erroneous evaluation of the evidence before the trial court, the grouse of the appellants is that the court did not take advantage of seeing and hearing the witnesses. Their learned Counsel argued that, although the respondents conceded that the first appellant bought the land, and the appellants contended that the land and development thereon were the 1st appellant’s, that the 1st appellant provided alternative shelter for the respondents which they rejected, that the appellants called evidence of the custom claimed to exist by the respondents for which the status of their witnesses were crucial to the type of evidence in question, yet, the court below rejected their evidence on baseless grounds. (Italics mine for emphasis and attention).

This submission is misconceived. The learned trial Judge as the records show took great advantage of seeing and hearing the witnesses and went the extra mile to record his impressions of all the witnesses, including the defence witnesses. The fact is that he did not believe DW1 and DW2.

It seems to me that in his argument, learned Counsel for the appellants did not appreciate the legal import of the finding of the lower court on the evidence of the defence witnesses involving their credibility, based on their demeanour etc., and the principles that in such a case, the appeal court may not interfere with the trial court’s findings. The issue here is one of credibility of the witnesses, not really the issue of non-evaluation or appraisal of evidence addressed in his brief of argument.

Where such an issue arises, the Court of Appeal will not interfere – see Abisi v. Ekwealor (supra). It is trite law that a trial Judge having had the singular opportunity of hearing the witnesses and watching their demeanour in the witness box, is entitled to select the witnesses to believe or facts he finds proved and the Court of Appeal should not interfere with such facts unless they are perverse. – Nsiriln v. Nsirim (2002) 3 NWLR (Pt. 755) 697 SC (Per Iguh, JSC at 714). See also Kodilinye v. Mbanefo Odu (1935) 2 WACA 336.

Now, what did the learned trial Judge do in his judgment with the evidence of the witnesses before him? He did what the law expected of him as set out in the legal authorities cited above.

He carefully set out the evidence of each of the witnesses. At the end of each witness’s evidence, he immediately recorded his appraisal thereof, considering his demean our, candour, comportment, manners, even partisanship, while testifying. Thereafter, he determined the credibility of the witness where applicable. Regarding DW1, for example, whose evidence the appellants complained was not properly evaluated and that the trial Judge did not take advantage of seeing and hearing them, the learned trial Judge stated as follows after carefully reviewing his evidence:-

“DW1 was so full and pompous of himself in the witness box. May be this posture by him may be due to his exalted position among the Jukun. He was also very arrogant. DW1 in the witness box appeared like someone on a mission. As a result, in his evidence-in-chief he was very direct and easily forthcoming in his evidence. But during his cross-examination he was not so excited. He visibly displayed his irritation to some of the questions that he was asked. As a result of all these, his position amongst the Jukun people notwithstanding, he never impressed at all as an honest witness”

Later at page 131, the learned trial Judge in further review and evaluation of the evidence of the witnesses said:

“From the testimonies of PW1, PW2, PW3, DW1 and DW2 it is commonly accepted that a father is under obligation to provide shelter for members of his family…”

See also page 133 of the record where the court weighed the evidence of PW1 and PW2 against that of DW1 and DW2 on the vexed question of the Jukun native law and custom regarding the sale of family property and he preferred that of PW1 and PW2.

In the case of DW2, also complained of by the appellants the learned trial Judge reviewed his evidence and in the course of its appraisal, found him lying in respect of some evidence verified against other evidence before the court and contradicting DW1 in some evidence. (See page 116 line 4 – P. 117 -line 24). The learned trial Judge found as follows concerning DW2 which clearly discredited him:-

“He agreed that PW2 (sic) rightly stated it when he said the 1st defendant did not erect any building of his own in his family house at Kente village before the Jukun and Tiv crisis, unsuccessfully lying, DW2 stated that the 1st defendant had since erected a house at Kente of the new residential area on a plot he allocated the 1st defendant. But when I went to Kente on a visit, DW2 took me to the family compound of the 1st defendant there showed a small building which had been destroyed during the Jukun and Tiv crisis as being the building the 1st defendant had erected. He took me to a plot where he stated he gave the 1st defendant who had there erected building and amazingly and surprisingly, there was no building there. Rather, the place was covered with weeds which give the impression that the place had not witnessed human presence for some years”.

The learned trial Judge in summing DW2 up said:

“In the witness box, this witness shaded his eyes in black goggle went into the witness box purposely with everything of arrogance. To me he was like a person on a mission, I had a difficult task controlling him to answering quite simple questions that were put to him. He was apparently very hostile against the plaintiff as he demonstrated his invitation and hostility during cross-examination. He was brashed (sic) by his appearance and performance generally. I cannot honestly take him as an honest and sincere witness I will stop short of calling him a liar as demonstrated so during my visit to Kente”.

To successfully attack the findings such as the foregoing, the appellant must show but he did not do so, that the views expressed is wrong or perverse or that the trial Judge has failed to use or palpably misused his advantage of seeing the witnesses. See Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 at 441; Woluchem v. Gudi (supra) at 230; Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 551; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552; Onyejekwe v. Onyejekwe NWLR (Pt. 596) 482 at 500 – 501 SC. The trial Judge who had the singular advantage of seeing and observing the witnesses, undoubtedly watched their demeanour or partisanship, their integrity, manners etc. He therefore, decided on their credibility and this affects the substantial part of his findings of fact. The trial Judge obviously did all the law expected of him.

I see no reason to infer that the learned trial Judge has not properly used his advantage of seeing and hearing these witnesses or that the findings are perverse. They are supported by evidence.

The issue herein is not a question of inference to be drawn from established facts or evidence on record which does not depend on the credibility of witnesses, their demeanour in court or the court’s impression of them. It is an issue of credibility of the witnesses. I am convinced this court should not interfere with this. One bears in mind that a Court of Appeal must not, except there be compelling reason which indicates erroneous appraisal of facts and conclusions show utmost restraint, indeed reject the temptation to interfere with well considered findings made by a learned trial Judge in the court of trial. (See Okafor v. Idigo (1984) 1 SCNLR 481; (1984) 6 SC 1. More importantly, where the issue involves principally that of credibility of a witness, it is wrong for an appellate court to reverse the trial court’s finding of fact on it. (See State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548. This court will not interfere in this case. Learned Counsel for the appellants also complained concerning the trial court’s findings on the applicable native law and custom of the Jukun people as to the obligation of a father to his children, as in this case, of the 1st defendant to the plaintiffs and also as to the status of the property in issue.

The court had held that it was conceded that the 1st defendant was the father of the plaintiffs. He owes them a duty to provide them with board and shelter. It was also found that the property in issue and the houses were where all the plaintiffs (except 1st plaintiff who was about 2 when purchased) were born and all the plaintiffs had been brought up and lived there with their parents ever since. That was the only home the plaintiffs knew as belonging to their family. By virtue of the use to which this property had been put by the family it has as a result transformed from ordinarily being a personal property of the 1st defendant and acquired the status of a family property.

Learned Counsel for the appellants has submitted that this finding was perverse and an unreasonable conclusion on the evidence and the law. He has invited this court to interfere with the finding.

With respect to learned Counsel, it seems to me that the finding is supported by the evidence of Jukun custom as accepted by the court below and the undisputed evidence of the use to which the property had been put. The reasoning of the learned trial Judge has something to recommend it.

First of all, as to the evidence of the witnesses who testified for the plaintiffs, all sides seem to agree that Jukun people wherever they settle have the same custom. DW1 himself admitted that PW1 and PW2 were members of the Traditional Council and that those in the Council were people who must have knowledge of Jukun native law and custom before they could be appointed. The council determines cases on native law and custom. The witnesses PW1 and PW2 are District heads. They are next in line to DW1 and above in rank to DW2 who is a village head. All in all, the witnesses, PW1, PW2, DW1 and DW2 all qualified to testify on the custom.

The fact that DW2 is the village head of Kente would therefore not make much difference. Also, the court below did not find him a credible witness based on his demeanour etc, and established false evidence. DW1, though higher in rank than PW1 and PW2 was also considered an unreliable witness by the court below. The positions and evidence of DW1 and DW2 cannot diminish the weight of evidence of PW1 and PW2 in these circumstances.

The evidence of a witness who is discredited hardly carries weight. PW3 is the Kente District scribe. Kente is where the parties hail from. He had personal background information on facts concerning the parties who are from Kente where he himself resides, particularly that the 1st appellant had no other house even in Kente for his family. The learned trial Judge found these witnesses for the plaintiff reliable, having heard and seen them and determined their demean our and comportment in the witness box, even their partisanship with the parties to the action.

He concluded that PW1 was calm even in vigorous cross-examination.

He answered questions frankly, directly without prevaricating.

“…Honestly judging by his demeanour and performance generally in the witness box, he impressed greatly and a lot as a sincere and truthful witness … never contradicted himself.”

With respect to PW2, another district head and member of the Aku council to whom His Royal Highness the Aka Uka had earlier referred the dispute giving rise to this case, the learned trial Judge commented on his demeanour etc, thus:-

“PW2 was calm … and neutral. He never indicated by his demean our that he was in favour or against any side in the case. He answered questions frankly. Once in while, he seemed to have spoken with his tongue in his cheek, but he forthrightly honest and unhesitant (sic) in giving answers to questions. On the whole, I have no doubt about his sincerity”.

PW3 who was not cross-examined was found by the court to be very blunt and resolute, well composed, showed no affiliation to any side, answered questions frankly. The court concluded of him, “I was impressed that he is a witness of truth”.

The learned trial Judge obviously accepted their evidence as the truth concerning the question of the obligation of a Jukun father to his children, that they were entitled to be provided with shelter or accommodation by their father under Jukun native law and custom. Also, the father is not allowed to sell the compound his children are living in or family land. If he wishes to sell, he must notify them but if they refuse, he cannot sell. In cross-examination, PW1 said that a person who falls foul of the custom will be prevented from selling the house and in a situation such as herein, where he has sold, the buyer would be given back his money. Also, if the children should complain, the sale would be nullified under Jukun custom and children do not inherit their father, while he is still alive under Jukun custom. A Jukun person can sell his house in which he is not living with his children without their consent. PW2 testified in like manner and also that a father must consult his wife and children before selling. PW1, PW2 and PW3 testified that the 1st appellant had been saying that he sold the house because his children were disobedient to him.

PW3’s testimony establishes that the 1st appellant did not possess any house in Kente where PW3 himself resides, as the secretary to the District head of Kente. He too is a Jukun and the custom is the same for all Jukuns. A Jukun is not allowed to sell off his house and drive away his children. He affirmed that 1st defendant had been living at Wukari and had no building of his own in the family compound in Kente. When the trial Judge visited Kente, this was proved correct as opposed to the testimony of DW2 found to be untrue. See page 116-117 of the records.

The foregoing is the evidence of custom which the trial court believed, in my view rightly, since the evidence of DW1 and DW2 that would have countered it was discredited.

I would firmly assert that as a big ranking traditional ruler, “the second in command to the Aku-Uka” which is not in dispute, DW1 is entitled to and must be accorded all the respect due to his high office and indeed his age. It must however be remembered that he was a witness in a court proceeding and the trial court had a duty and the power to assess and evaluate his evidence, and determine his credibility, all relevant matters taken into account. For a trial court having had the opportunity of healing witnesses, and watching their demeanour in the witness box is entitled to select witnesses to believe or facts he finds proved. See Nsirim v. Nsirim (supra). The court below having done so and discredited him, the effect is that on that side of the scale of justice, there is nothing.

This is as opposed to the evidence on the opposite side – that of the plaintiffs’ witness which the court believed. It is in the foregoing light that the submission of learned counsel for the appellants that the status of the defence witnesses “were crucial to the type of evidence in question” i.e. the evidence of custom must and has been examined. So, also has the learned appellants’ counsel’s complaint that the court rejected their evidence on baseless grounds. This seems to be based on the notion that there were no more authoritative witnesses than DW1 and DW2. There would have been something in the submission, had the court below found them reliable witnesses. Obviously, therefore their evidence was rejected on proper legal grounds.

The evidence possesses no probative value.

Evidence which is credible and is effectively uncontradicted by any other evidence is the kind a trial Judge would usually accept and act upon, not evidence which is found not credible or has no probative value.

The findings complained of were made in my firm view based upon proper evaluations of the evidence of the witnesses. I am in agreement with learned Counsel for the respondents that this is not to be interfered with by this court.

For once, there is sufficient evidence on record upon which the court of trial based its findings, the appeal court does not interfere with it unless it can be proved to be perverse. See State v. Ajie (2000) 11 NWLR (Pt. 678) 434; Akpabio v. State (1994) 7 NWLR (Pt. 359) 635; Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 551.

Also, apposite are these authorities cited by learned Counsel for the respondents:- Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) 639 at 646 B-C; Fasikun II v. Oluronke II (1999) 2 NWLR (Pt. 589) 1 SC; Ogunderu v. Adebayo (1999) 6 NWLR (Pt.608) 684 at 693 para. D – H.

It is important to appreciate that an appellant who complains that the trial court’s finding is perverse must show how the finding is wrong or perverse. Here are some circumstances when a decision can be said to be perverse –

(1) When it runs counter to the evidence.

(2) When it is shown that the trial court took into account matters which it ought not to.

(3) Where it is shown that the court of trial shut its eyes to some relevant obvious matter.

(4) When the decision occasions a miscarriage of justice.

See MISR v. Ibrahim (1974) 5 SC 55; Incar Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 4 SC 250.

In this case, there is nothing perverse shown.

There are some compelling facts and circumstances arising in this matter. First, there is this obligation thrust on a father and which he owes his children under native law and custom to provide them with accommodation. This father, the 1st appellant had been providing accommodation from 1968 to 1998 in the same property in issue. This he personally acquired in 1967 and historically throughout that period he made it a home for and lived there with his wife and children. In 1998, he divorced his wife. Then he now decides in the same 1998 to sell the property. Evidence which the court below accepted was that he did this in bad faith and failed to provide alternative accommodation for the children including the young ones still at school.

Also, the older children among the plaintiff had made some contribution to the development of the property, which as can be seen from the evidence on record, was an on-going exercise over the years, plastering and ceiling two rooms and corridor, and wiring and installing electricity for all the rooms in the property at their own expense.

This is not a case where a kind hearted person allowed some relation the use of his personal property. Rather, it is as stated above. One could venture to deduce that the intention of its being for the family use in view of the evidence that the 1st defendant/appellant had no other house of his own for the family even in Kente, his village. And, truly, the family used it for that purpose since 1968, as their home.

PW3, the District head of Kente scribe living in Kente, testified that he had known the 1st defendant to have been living in Wukari (this is where the house in question is), and that he had no house in the family compound in Kente. When DW2 tried to deceive during his testimony, by testifying that the 1st defendant had a house there. As earlier stated, the learned trial Judge during his visit there proved him false. The plaintiffs have proved, and the court below believed them that apart from the 1st plaintiff who was about 2 years old in 1967-68, all the other plaintiffs were born and brought up on that property where they lived ever since with their parents. From the facts, I believe it cannot be far fetched to declare that this was intended and it became the family home when it was being developed over the years and the children of the family growing up, began to contribute to its further development. I am of the firm view that there are facts upon which it can be held that by the use to which the property had been put and against the background of the applicable native law and custom, this property could be rightly stamped family property which no member could alienate without the consent of the others.

This reasoning takes into account the Jukun native law and custom version expounded by PW1 and PW2, believed and accepted by the trial Judge. This is to the effect that under that law, a father is bound to provide for his children. A person cannot dispose of the house which he provided for his children without an alternative provision and without their consent. This does not derogate from the right of a person from selling his property, personally acquired outside his family’s home, and not occupied with his children.

It is reasonable to expect that the 1st appellant would provide an alternative accommodation that would take into account the younger children who were still at school or could not fend for themselves.

The appellants have not shown how the finding of the court below regarding the applicable Jukun native law and custom is perverse as they complained.

Learned Counsel for the appellant also submitted that the trial court unduly placed weight of evidence on the defendants by accepting the evidence of the plaintiffs even before considering and evaluating the evidence of the defendants and that such an approach caused misplacement of burden on the defendants that resulted in miscarriage of justice.

This criticism is not guided by any consideration of the applicable procedure.

An important principle is that a trial Judge is entitled to determine, after listening to witnesses and watching their demean our in the witness box, which witness to believe, and which not to believe, as the court below did in this case – See Nsirim v. Nsirim (supra); Kodilinye v. Odu (supra).

In my view, it does not matter that the court addressed the evidence of plaintiffs’ witnesses as a whole before taking on the defence witnesses.

It is also well established that the proper procedure to follow in considering evidence adduced at the trial is first to consider that of the plaintiff and his witnesses and then to consider that led by the defence. If the evidence of the plaintiff is so patently unsatisfactory, then the trial court does not have to consider the defence’s case at all. If otherwise, the court will consider the evidence of the defence. Then after considering the evidence of both parties, it will take the evidence led by both parties and put it in the imaginary scale (as outlined in Mogaji v. Odofin (1978) 4 SC 91). It will weigh it and determine on preponderance of credible evidence which has more weight. See Woluchem v. Gudi (supra).

The trial Judge’s approach in this case, wherein he first considered evidence led by the plaintiffs and the demeanour of the witnesses before that of the defence which is what the appellants complains of accords with the foregoing principles.

The approach did not in any way result in any miscarriage of justice. Clearly, it did not place any unlawful or undue burden of proof on the defendants nor did it cause misplacement of burden on them as alleged. The appellants have not shown how the finding of the court below is perverse as they complained. It is also not shown in the appellants’ brief of argument how the evidence of native law and custom of the Jukuns applied by the learned trial Judge in this case could be said to be repugnant to natural justice, equity and good conscience. All that learned Counsel for the appellants, Mr. Abongaby set out in his brief of argument in that respect were what he stated was the finding of the trial court as follows:

“1. Though the property did not devolve to the 1st defendant by inheritance from his ancestors, but purchased personally by him, he could not sell it without the consent of his children.

2. Even when he sold same, it was a way of disinheriting the children.
3. He ought to provide them with alternative accommodation even though he said he did, but that which he did was not sufficient.
4. A father cannot disinherit his recalcitrant… children for any reason.”

No argument was proferred. Rather, learned Counsel after the above simply stated in two lines that these facts found by the trial Judge, based on the evidence of PW1 and PW2 were unreasonable and repugnant to any good sense and justice.

How is this so? It is left to us to conjecture!!!

Learned Counsel for the respondents has urged us to discountenance this submission for the appellants. He argued that a custom that seeks to protect innocent children from being rendered homeless, to save them from emotional and psychological trauma and stress that would result from waking up one morning and discovering that their father has sold the only home they have known for thirty years, a home they contributed in developing, if any thing else (sic) such a custom is most equitable and fair by whatever definition.

I am inclined to agree with counsel for the respondents perhaps, in terms of social justice.

I am however, more inclined to firmly state that the decision of the learned trial Judge is backed by the law and the evidence before him.

I would therefore in the premises determine this issue against the appellants. Grounds 1, 3, 4 and 5 of the grounds of appeal to which they are married therefore fail also. The conclusion is that all the five grounds of appeal fail and they are hereby dismissed.

How I wish I could hold back the urge to mention that it would appear to me that part of the issue rearing its head in this matter has to do with the Rights of the Child under our statute law. As this was not canvassed however, and the law does not permit my looking into it without according the parties herein an opportunity to address it, I had stop so far.

I must however comment that parenthood throws on parents so many challenges, including having to cope with many, sometimes naughty and at other times, loving behaviours of the children. Also, obedience to parents is one side of the covenant between parents and children so vital to peace and harmony. Yet, there is the fact that homeless children can be no asset to their parents, themselves, the community or the nation. I implore the defendants/appellants to think on these things, so also the plaintiffs/respondents.

Having said that, I will now conclude.

The judgment of Andetur, J., delivered on the 2nd of December, 1999, is hereby affirmed.

I make no order as to costs.

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Other Citations: (2004)LCN/1557(CA)