Friday Kamalu & Ors Vs Daniel Nwankudu Uka Umunna & Ors (1997)
LAWGLOBAL HUB Lead Judgment Report
The plaintiffs, herein appellants, had in a representative capacity sued the defendants, herein respondents, also in a representative capacity at the Imo (now Abia) State High Court sitting at Aba claiming the following reliefs:
“(i) Declaration that the plaintiffs are the only descendants of the late Daba.
(ii) Declaration to the customary right of occupancy in respect of ‘Egbelu Umudaba’ land and ‘Okpulo Daba’ the annual value of which is N10.00 situate at Umuocham within the Aba Judicial Division
(iii) N400.00 being general damages for trespass.
(iv) Perpetual Injunction.”
Pleadings were ordered, filed and exchanged in this case which has a tinge of family status. While the appellants amended and further amended their Statement of Claim and the respondents delivered their Statement of Defence, the case went to trial at which four witnesses testified for the appellants and the same number of witnesses were called in support of the respondents’ case. After counsel on either side had addressed the court, the learned trial judge (Njiribeako, J.) awarded to the appellants title to the two lands in dispute while dismissing their claim for trespass and injunction.
Aggrieved by the said decision the respondents then as appellant appealed to the Court of Appeal, Port Harcourt Division (hereinafter in the rest of this judgment referred to as the court below) which on 11th December, 1990 allowed the appeal, set aside the judgment of the trial court and dismissed the appellants’ claims in their entirety. The appellants have now appealed to this court on three original grounds of appeal which by an amendment of the Notice of Appeal granted by this court were increased to four.
The summary of the appellants’ case is that they are the descendants of Daba and are of the Umudaba family while the respondents are the descendants of Ogele and they constitute the Umuogele family. They are two distinct families. Daba and his relations went a hunting and captured a man during the hunting expedition whom they named “OGELE’, Ogele being a metal gong used for hunting and also as a musical instrument. Daba brought Ogele home and gave him land to live on. By act of providence, his descendants who are now the respondents, are more numerous and wealthier than the descendants of Dabs who are the appellants.
Daba beget Enwereonye who in turn beget Kamalu. When Enwereonye died, Kamalu was so tender that he was taken to Ukaumunna, one of the ancestors of Umuogele where he was brought up. He lived there and became a wealthy and an influential chief. It was there that he beget the appellants and lived with them, with the advice that they should go back to their own land. When the appellants and their father Kamalu lived at Umuogele, they and the defendants saw themselves as brothers and were doing everything in common including the use of the land as members of one family. After the death of the influential Kamalu, the relationship became strained whereby the appellants decided to go back to their ancestral land.
The respondents countered in both their pleadings and evidence that Ogele, their joint ancestor, founded the lands in dispute ‘Ohio Ihuala’ and ‘Egbelu Umuogele’ denoted in Plan No. OKE/D verged pink and tendered as Exhibit B. These lands the respondents asserted, their (appellants and respondents) kith and kin from time immemorial have enjoyed communally as a single family of Umuogele. The respondents finally pleaded and testified that ‘Daba and ‘Umudaba’ never existed in Ocham village in Ngwa. They pleaded res judicata, estoppel, standing by and acquiescence as well as the several letters the 2nd appellant wrote to the 1st respondent as head of Umuogele family of which he is a member. The parties subsequently exchanged briefs of argument in accordance with the rules of court.
The appellants for their appeal have formulated three issues from their three grounds as arising for determination. The respondents similarly submitted three identical issues for our determination. I only need to set out the appellants’ three issues thus
(i) Whether the Court of Appeal’s approach to the dispute between the parties as contested in the High Court is justified.
(ii) Whether the Court of Appeal was justified in relying on Exhibits ‘C’ and ‘E’ and treating them as raising issue estoppel to set aside the judgment of the trial court.
(iii)Whether the Court of Appeal was right to rely on both Exhibits R and S to set aside the judgment of the trial court.
At the hearing of this appeal on 24th February, 1997, learned counsel for the appellants Chief Donald Udogu moved his motion for leave to amend the appellants’ Notice of Appeal dated 3rd February, 1997 firstly, by deleting the name of the 1st appellant who was said to have died and also deleting the words “and misdirected themselves’ from ground one of the Grounds of Appeal contained in Exhibit A, secondly, to amend appellants’ brief attached to the motion as Exhibit ‘B’ and thirdly, to deem Exhibits ‘A’ and ‘B’ as having been properly filed and served. Mr. Akpamgbo, learned Senior Advocate for the respondents on signifying no opposition to the application, the same was granted as prayed. Learned counsel for the appellants next applied to withdraw original ground four of the grounds of appeal at page 328 of the Record and to delete paragraph 5 of page 7 of their Brief of Argument. There being no objection to the prayers sought, the application was accordingly granted as prayed. Learned counsel on either side each adopted his Brief and urged us to allow and dismiss the appeal respectively.
In arguing the first issue which is related to grounds 1 and 2, learned counsel for the appellants proffered the following arguments in their written Brief.
The appellants and respondents, it is contended, fought this case in the High Court on the basis of the Further Amended Statement of Claim dated the 5th day of November, 1982 and the Statement of Defence dated the 8th day of November, 1973. The learned trial judge in his enormous duty of adjudicating over the dispute between the parties, namely that after comparing the relative strengths of their cases and in deciding same on the preponderance of evidence, the trial court proceeded to find that the two families are different by entering judgment for the appellants on the proof of their case which was not challenged at all. We were thereafter referred to several extracts in the trial court’s judgment in support of the contention. In particular, our attention was drawn to a portion of the judgment of the court below wherein after setting down appellants’ claims and the parties’ respective pleadings it held as follows: –
‘‘Going by the case raised by the parties in their respective briefs, it would appear that the main issue before the trial court was whether the land in dispute belonged to the respondents’ family alone as contended by them or to both parties jointly as contended by the appellants (now the respondents).”
The foregoing, it is urged with respect, the appellants’ Brief did not say, the cardinal question being, in view of the claims and the respective pleadings, who is correct as to the main issue between the parties – the trial court or the court below? The submission of the appellants is that it is the trial court that is correct while the court below went astray when it held otherwise. This is because, it was argued, issues between the parties at the trial court are determined from their respective pleadings and not from their respective briefs of argument. In the instant case, it was maintained, relief number 1 is the declaration that they alone are the descendants of late Dabs and they brought the action as Umudaba family against the respondents who are the Umuogele family both of Umuocham, adding that they (appellants) pleaded their separate identity in paragraphs 1, 2, 3, 4, 6, 7 and 12 of their further Amended Statement of Claim dated 5th November, 1982. The respondents, it was contended denied that in paragraphs 2 and 3 of the statement of defence dated 8th November, 1973, the parties were then at issue as to whether the appellants’ family is separate and distinct from the respondents’ family. The cases of Ehimare v. Emhonyon  1 NWLR (pt. 2) 177 at 183 and Federal Housing Authority v. Sommer [19861 1 NWLR (pt. 17) 533 at 541 were called in aid. It is the further contention of the appellants that it follows from the claim, and the pleadings that the parties in the above suit could only be said to own the lands the subject-matter of the suit jointly only if they are members of one family, otherwise “No.” It then goes without saying, it was maintained, that the above suit does not imply a land case simpliciter because their common or joint ownership of family land depends on their being members of one family. That was why, it was further argued, the learned trial judge held at page 104 of the records that the major issue that called for his determination was whether the appellants and the respondents were members of one family or separate families. On being referred to what the learned trial judge said in resolving the issue in appellants’ favour, we are urged to hold that that is the correct approach, adding that learned justices of the court below went astray when they approached the matter from a wrong angle by treating the dispute between the parties strictly as a land dispute. The dicta of Sowemimo, JSC, (as he then was) in Thanni v. Saibu  3 2 SC 89 at 110 was called in aid, adding that the evidence of their separate identities led at the trial by the appellants having not been challenged by the respondents whatsoever in which case the learned trial judge had no alternative in the circumstances than to find for the appellants. The court below, it was therefore contended, had no justifiable reason in law to set aside such findings.
It was further argued that the parties being at issue as to their roots, the onus was on the appellants to prove that their family is separate and distinct from the respondents’ family. The 1st appellant who for instance, gave evidence as to appellants’ separate identity, was not cross-examined leading in the end to the conclusion the learned trial judge arrived at. The cases of Isaac Omoregbe v. Daniel Lawani (1980)3-4 SC 108 at 117, Akintola v. Solano  2 N.W.L.R (pt. 12) 598 at 611 and N.B.T.C. v. Narumal Ltd.  4 NWLR (pt. 33) 117 at 126 – 127 were cited in support thereof. The appellants having at the trial discharged the onus on them to prove that their family is different and distinct from the respondents’ family we were finally urged to so hold.
From the ample oral and documentary evidence led and based upon the pleadings and briefs filed, I take the view, firstly that the court below was justified to arrive at the conclusion it did, to wit, that the appellants and the respondents belong to the same family known as Umuogele family of Umuorham and therefore the lands in dispute constitute family property and not that of Umudaba family exclusively. P.W. 1, Friday Chilaka Kamalu testifying for the appellants had the following to say under cross-examination.
“Q. Do you know about the High Court case in 1962 between Nwankudu -Kamalu & Ors. against Jonathan & Ors. in respect of Egbelu land?
- I was one of the defendants in that case also Ishmael. The action was in respect of Egbelu land. We won the case. Nwakamalu my father lived and died at Umuogele. He was buried there. We all the children of Nwakamalu lived with him at Umuogele.
Egbelu is a farmland. We now live at Egbelu. The defendants lived at Okpulo Ogele but they have now come over to Okpulo Dabs to live and this fed to this action. We did not show Okpulo Ogele in our plan.”
The above constitute admissions which by their tenor are fatal to the appellants’ case. In law it is trite that what is admitted need no further proof. See section 74 of the Evidence Act, Cap. 112 Laws of Federation of Nigeria, 1990. See also Okparaeke v. Egbuonu  7 WACA 53 at 55 and Lawal Owosho & Ors. v. Adebowale Dada  7 SC 149 at 163 – 164. On these admissions the court below had this to say inter alias-
In the face of all these admissions and the judgments in Exhibits C and E and the evidence of D.w. 3 and D.w. 4, it is difficult indeed to uphold the finding of the learned trial judge that the parties do not belong to the same family known as Umuogele family of Umuocha. If the learned trial judge had applied the test laid down in Kojo II v. Bonsie & Anor. (supra) and other Nigerian cases following them, he would have found that the appellants’ traditional history was preferable. I have no hesitation in setting aside the crucial finding of his…..’
Secondly, P.w. 3 Isaac Irobi, admitted under cross-examination thus:
‘‘I know the land in dispute. The defendants live in part of the land.”
I know where the defendants live. They have lived there for a very long time. Their family were living there before I was born. The plaintiffs and defendants once lived in the same location.”
Thirdly, P.w. 4, Emmanuel Igoni Nwogu said under cross-examination as follows:
“I know where the defendants live. They have lived there for a very long time. Their family were living there before I was born. The plaintiffs and defendants once lived in the same location.”
Apart from the admissions set out above emanating from the cross-examination of the. appellants’ witnesses, from the testimonies of defence witnesses the following vital pieces of defence evidence became manifest to strengthen the defence case. D.w. 2, Okuaa Kamalu said in examination-in-Chief the following among other things:
“Ogele is our ancestor. He migrated from Uratta Umuoha in Okpuala Ngwa. He founded Umuorham. His sons were Daba and Amala. Daba had two sons called Onwunji and Agughara and Amala had many sons but two succeeded him. They were Oriaku and Echeonwu. When Ogele died, Daba succeeded him. After Daba, Amala succeeded him. Oriaku succeeded Amala and Echeonwu succeeded Oriaku. When Echeonwu died Onwunji Daba succeeded him. Onwunji was succeeded by Enereogwe Oriakwu. On the death of the Enereogwe Nwoko Eeheonwu succeeded him. Agughara Daba succeeded Nwoko Echeonwu. Enwereonye Amala succeeded Agughara Daba. Akoma Oriaku succeeded Enwereonye Amala. My father Kamalu succeeded Akoma Oriaku. When my father died, he was succeeded by Anyatonwu Ochionu. He was succeeded by J.P. Kamalu. JP. Kamalu is dead and I am now the head of Umuogele kindred. Chief Nwankudu Kamalu is dead and I am now the head of the Umuogele kindred. Chief Nwankudu Kamalu and J.P. Kamalu were also sued in this case.”
D.W. 3, Amos Esinwoko Nwamaghanna said inter alia when examined-in-chief as follows:
“Umuocham comprises the following kindreds viz: Umuogele, Umugioku, Umu-Atako, Umu-Eneregbe. These four make up Umude. There is no other family. I knew Chief Kamalu Enwereonye. 1 knew when he died. He lived at Umuocham in Umuogele……”
Upon being subjected to cross-examination, this witness had this to say:
‘The plaintiffs lived together with Chief Kamanu (sic) when he was alive but after his death they moved out of the late Chiefs home. The plaintiff’s moved to land called Egbelu Umuogele to settle. It is not true that the plaintiffs moved to Okpulo Daba.’
Through D.w. 4, Ihejirika Ahuchogu the following pieces of evidence were elicited in examination-in-Chief, to wit:
‘‘I know the defendants. The 1st defendant was also son of Nwakamalu Enwereonye. My family is Umuogele. We do not have Daba in our family. I know when late Nwankudu Kamalu and the plaintiffs had quarrel over land. The land dispute (sic) was Egbelu Umuogele., The one in dispute is called “Ohio Ihuala.’’ Egbelu land is also in dispute. The parcels of land belong to Umuogele family.’’
Further, there is the documentary Evidence (Exhibit C) in respect of ‘Umuogele’ land now in dispute, the judgment of Idigbe, J. (as he then was) in the consolidated Suits AA/16/1962 and A/57/1962 which is Exhibit E as well as Exhibits R and S. In Exhibit C, the 1st appellant (now deceased and struck off from the case) gave evidence for the then defendant, Jonathan Wakamalu. Also in Exhibit E, the 1st, 2nd and 3rd appellants in this appeal were the 1st, 2nd and 3rd defendants. Moreover, paragraph 1 of the amended statement of claim in Suit AA/57/62 when compared with paragraph the Amended Statement of Defence; paragraph 1 of the statement of claim in suit A/16/62 when compared with paragraph 1 of the statement of defence; the far reaching findings of fact of Idigbe, J. (as he then was) on Exhibit E show clearly that all through history and the cases fought in the Awo Customary Court, the Aba County Court and the High Court, Aba, there was no mention of Umudaba family separate and distinct from Umuogele family. Further, the words ‘Daba’ and ‘Umudaba are but words coined ‘to make the appellants obviate or escape the rigours of the doctrine of estoppel in pais and estoppel by standing by at least in respect of ‘Egbelu land’. The court below was therefore in my respectful view, right when it held thus:
“In the face of all these admissions and the judgments in Exhibits C and E and the evidence of D.w. 3 and D.w. 4, it is difficult indeed to uphold the fending of the learned trial judge that the parties do not belong to the same family as Umuogele family of Umuoeham. If the learned trial judge had applied the test laid down in Kojo II v. Bonsie (supra) and other Nigerian cases following it, he would have found that the appellants’ traditional history was preferable, I have no hesitation in setting aside that crucial feruling of his.’
It is settled law that where the area of findings, as in the instant case, is based on the demeanour of witnesses and credibility thereof, the trial court is muster and the Court of Appeal must not substitute its views for those of the trial court. See Chief Frank Ebba & Ors. v. Chief Warri Ogodo & Ors.  4 SC 84, Motunwase v. Sorungbe  5 NWLR (pt. 92) 90, Akpapuna & Ors. v. Obi Nzeka II  11 – 12 SC 129 and Nzekwu v. Nzekwu  2 NWLR (pt. 104) 373 at 393. However, where the issues relate to the evaluation of evidence of witnesses, oral or documentary, the Court of Appeal is in as much a favourable position as the court of trial. See Fashanu v. Odofin & Ors.  4 SC 91 at 94 and Anyaoke v. Adi  3 NWLR (pt. 31) 731 at 742.
In the light of the above I see no reason to disturb the conclusion arrived at by the court below when it said inter alia:-
“Going by the case raised by the parties in their respective briefs, it would appear that the main issue before the trial court was whether the land in dispute belonged to the respondents’ family alone as contended by them or to both parties jointly, as contained (sic) by the appellants.’’
Be it noted that the above excerpt contained in the appellants’ brief would not preclude them from a consideration of the pleadings and evidence, oral or documentary led at the trial. After all, briefs do not exist in vacuo, they are based on the pleadings, the evidence, oral or documentary, led at the trial as well as the judgment and the grounds of appeal. Secondly, what is appealed against by the appellants before this court is not the trial judge’s judgment as encompassed in the appellants’ brief but that of the court below. Thirdly, the evidence of the separate identity of the appellants led at the trial was challenged by the respondents. Similar consideration applies to Exhibits C, E, R and S. Fourthly, since both parties led competing and conflicting evidence of traditional history,, the learned trial judge should have adopted the proper test explicit in Kojo II v. Bonsie (supra) and adopted in Thanni v. Saibu  2 SC 89, 110. This unfortunately, the learned trial Judge failed to do. It is in the light of this error that the court below rightly in my view held as follows:-
“With utmost respect to the learned trial judge, it does not appear he adapted this approach before accepting the respondents’ traditional history. Contrary to the view held by the learned trial judge, the issue of respondents belonging to Umuogele family (appellants’ family) was in fact determined in Exhibit C in the Aba County Court of Appeal.”
My answer to Issue 1 is in the affirmative.
On the question posed in Issue 2 as to whether the court below was justified in relying on Exhibits C and E and treating them as raising issue estoppel to set aside the judgment of the trial court, it is sufficient to say firstly, that Exhibit C is a civil appeal from the Awo District Court. It was a judgment in favour of the 1st respondent for declaration of title to ‘Egbelu Umuogele’ land and injunction against Jonathan Wakamalu – 1st appellant in the instant case, as head of the so called Umudaba family, who was withdrawn after the respondents had filed their statement of defence. Exhibit C being a native court suit may operate as estoppel per rem judicatam or issue estoppel. See Ezewani v. Onwordi & Ors.  4 NWLR (pt. 33) 27 and Bamishebi v. Faleye (1987) 2 NWLR (pt. 54) 51 at 58. In the case in hand, there was no appeal against Exhibit C. From the evidence of 1st respondent in the trial court, extracts of which are set out elsewhere in this judgment under Issue 1, the 1st appellant knew of Exhibit C and in fact in his evidence at the trial he said he actively supported 1st appellant. In law, 1st appellant is said to be standing by whilst his eldest brother Jonathan was fighting his case and in respect of ‘Egbelu land’ now in dispute in the appeal herein. The position in law of the appellant vis-a-vis the respondents in relation to Exhibit C may be restated thus:
(a) Estoppel by standing by is but a specie of estoppel by conduct. It is a kind of equitable estoppel and applies where because a party omitted to intervene in a pending action affecting his interest, he is precluded by the result of the action although he was not a party thereto. See Atta v. Bonsra 3 All E.R. 559, Obodo v. Ogba 2 NWLR. (pt. 54) 1 at p. 15, Alashe v. Olori Ilu  1 All NLR. 390 at 396 and Joe Iga, v. Ezekiel Amakiri  11 SC 1.
(b) In interpreting the judgment of native courts the substance and not the form should be looked at vide Ikpang & Ors. v. Chief Edoho & Ors. 2 LRN. 22 and Ohene Abuaji II v. Oyebu 1 WACA 66.
(c) A plan is not an absolute necessity in every land suit where, as in the instant case, both parties know precisely what piece of land is in dispute. See Maberi v. Alade & Ors.  4 SC 184 at 199, Garba v. Akacha  NMLR 62 and Awere v. Lasoja  NMLR 100 at 101. Also where the parties know the quantity and quality of the land in dispute between them, a plan ceases to be an absolute necessity. See Chief Sokpui v. Chief Agbozo 13 WACA 241 and Olujinle v. Adeagbo  2 NWLR. (pt. 75) 233 at 249. Adverting to the above statement of the law, there is an admission that the 1st appellant knew the land in dispute in the Awor Customary Court, the appeal against which is Exhibit C in respect of “Egbelu land’ now in dispute, that he supported Jonathan Daba (alias Kamalu) and as both parties and the court knew it was ‘Egbelu land’ a plan was not absolutely necessary.
I am therefore of the firm view that the court below was correct when it held as follows:
“With respect, the learned judge seemed to have gone off-target. Exhibit C is a native court proceedings. It has been held that the proper approach to native court proceedings is to look at the substance rather than the form – Ikpang & Ors. v. Chief Edoho & Anor.  2 LRN 29, 35. If this approach is adopted, it would be seen that the fact that the parties belonged to the same family was tacitly admitted, what was in dispute was whether defendant’s father in that case, as head of Umuogele family granted the defendant as much land as he claimed or that he just went on the land without the permission of the head of the family. The native court found the latter was the case and judgment was entered against the defendant.” To demonstrate that issue estoppel operated in the case, the court below held, rightly in my view, as follows:
Again Exhibits C and E raise issue estoppel against the respondents in that the membership of the Umuogele family to the hand in dispute has been confirmed in these two cases by courts of competent jurisdiction and the two judgments still subsist and are binding on the respondents. Even though some of them were sued in those actions in their personal capacity, the family they now claim to represent is caught by the doctrine of standing by – Wytcherley v. Andrew  L.R. 2 P & M 327, Ojiako v. Ogueze  1 All NLR 58, Ekpoke v. Usilo  6 – 7 SC 187, Etiti v. Oguta  12 S. C. 123, Ogundiani v. Araba  6 – 7 SC 55.’
Finally, the court below arrived at the conclusion which in my judgment, is justified to the effect that – “Along with Exhibits C and E are the various admissions made by the 2nd respondent and his compatriots admitting ownership of the land in dispute to be in the Umuogele family. There are also on record abundant evidence of acts of ownership by the appellants (and on which the learned trial judge made no pronouncements).
All these put together must decide this case in favour of the appellant.” Issue 2 is accordingly answered in the affirmative. In relation to Issue No. 3 which queries whether the court below was right to rely on both Exhibits R and S to set aside the judgment of the trial court, it will suffice if one falls firstly on Exhibit D – a letter tendered in Suit A/35/73 and written by the original 1st appellant in this Suit but later withdrawn-for an answer. The 1st appellant’s withdrawal notwithstanding, it binds him in so far as this suit and appeal are concerned. Of relevance is Exhibit S which is the testimony on oath of the 1st appellant in MA/917C/73: Police v. The Head of Umuogele family and 1st respondent and 7 others. The evidence of P.w. 1, the 1st appellant herein runs thus: “My name is Friday Chukwuka Kamalu. I live at Umuocham. I am a farmer.
I know accused persons. They are natives of Umuocham and come from the name family with me.” (Italics is mine for emphasis). Then cross-examined, the 1st appellant admitted as follows:- “The name of the land in this charge is called ‘Umuogele land’”. All through these admissions which are against interest, (for which see Aduke v. Aiyelabola  8 W.AC.A 43, Ajide v. Kelani  3 NWLR (pt. 12) 246 at 260 and section 20(3) (a) Evidence Act Cap. 112 laws of the Federation of Nigeria, 1990) there is no reference either by 1st appellant (Jonathan Daba) or the 1st respondent that they were referring to Daba as a separate family, distinct from Umuogele or that any of the lands in dispute is Umuogele Daba or Okpulo Dabs. Irrespective of the fact that in law admissions do not constitute conclusive proof of the matters admitted (for which see Ojiegbe & Ors. v. Okwaranyia & Ors. 1 All NLR 605, Joe Iga v. Chief Ezekiel Amakirl (supra) and Alashe v. Olori-Ilu (supra) but may operate as an estoppel. In considering the worth of such admissions the court must take into account the circumstances under which they were made and the weight to be attached to them. See Nwankwo v. Nwankwo  5 NWLR (pt. 394) 153 at 171, Seismograph Service (Nig.) Ltd. v. Eyuafe  9/10 SC 135. In Nwankwos Case (supra) Iguh, JSC said: “……… formal admission may also take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit …….. See the proviso to section 74 of the Evidence Act.”
Exhibit D is a letter written by Jonathan Dabs to a brother, the 1st respondent, acknowledging him as head and brother and asking for forgiveness for selling joint family property viz the Umuogele family land without his (1st respondent’s) consent. Exhibit S, on the other hand, is an admission on oath by 1st appellant setting out his family and the land, the subject matter of the charge. The court below was therefore right when it held that the admissions contained thereon and the judgments in Exhibits C and E coupled with the evidence of d.w. 3 and d.w. 4 are conclusive against the findings of the trial court that the appellants are a separate Dabs family (as opposed to the Umuogele family) and therefore own the lands in dispute exclusively.
The question is: Were Exhibits D, R and S to have been excluded in evidence could the trial court have arrived at a different conclusion? My answer is in the negative since it has not been demonstrated that without these pieces or evidence and the reliance on the oral testimonies of the witnesses based on oath against oath or that the conclusion arrived at by the court below would have been otherwise. See section 226(1) (now Section 227(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990 and Idundun v. Okumagba (supra).
The intervention of the court below with the decision of the trial court in the instant case is founded on the established principle of law that evaluation of evidence is the duty of the trial court that saw the witnesses but in circumstances where the findings of fact of the trial court is not borne out of the evidence before that court, the Court of Appeal will be called upon to re-assess such evidence. See Mrs. Alero Jadesimi v. Adolo Okotie-Eboh  1 NWLR (pt. 16) 264, Chief O. Fabumiyi & Anor. v. Fatumo T. Obaje & Anor.  NMLR 242 at 243 and Atanda v. Ajani  4 NWLR (pt. 110) 511 at 539. The above principle was what was brought to bear by the court below in the instant case on appeal, here that court, rightly in my view, did not shrink from its duty in overruling the trial court.
In the alternative, if Exhibits D, R and S were wrongly admitted (which is not conceded), no miscarriage of justice was occasioned thereby. See Ike v. Ugboaja  6 NWLR (pt 301) 539 at 556. The judgment of the court below on these exhibits being, in my view, impregnable and unimpeachable ought not to be disturbed. Issue 3 is accordingly also answered in the affirmative. The result of all I have been saying is that this appeal lacks merit and it fails. I accordingly dismiss it and award coats assessed at N1,000 in favour of the respondents.
Other Citation: (1997) LCN/2749(SC)