Sule Anyegwu & Anor V. Aidoko Onuche (2009)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C 

This case originated from the Upper Area Court, Idah, in Kogi State (trial court). The plaintiffs cause of action before the trial court reads as follows:

“seeking court assistance to restrain the defendant for (sic) further collecting (sic) of my stool land tributes called ogbajele.”

When the cause of action was read and explained through the assistance of an interpreter, to the two defendants, each denied liability. That was on the 5th day of June, 1996. This exercise was repeated on the 11th day of July, 1996 as there was a reconstitution of the panel members of that court. Each of the defendants maintained that he was not liable. Trial commenced on the 12th of November, 1996 with the plaintiff and three witnesses testifying. The 1st and 2nd defendants testified. Two other witnesses were called by the defendants. There was a visit to the locus in quo by the court, the parties and their witnesses. That was on 5/9/97. Thereafter, the parties addressed the trial court. On the 24th day of October, 1997, the panel members of the trial court delivered the court’s judgment by a majority while one of the members i.e. the chairman of the panel dissented. In the majority judgment, the trial court found that the plaintiff was able to prove his case and judgment was entered in his favour. The land in dispute i.e. Ogbajele land was awarded to the plaintiff and his family as “Family Stool Land.” The trial court also restrained the defendants, their agents, servants and privies from collecting tributes from anyone on Ogbajele land. Dissatisfied with the trial court’s judgment (majority judgment) the defendants appealed on seven grounds of appeal to the High Court of Justice of Kogi Sate, appellate division, holden at Idah. There was also filed by the plaintiff a notice of cross appeal against the dissenting judgment. In course of dealing with the preliminary matters, the High Court struck out grounds D, E and F of the consolidated notice of appeal dated 24/11/97 and the cross appeal as they raised complaints against the dissenting judgment. Having considered the remaining grounds of appeal the learned judges of the High Court allowed the appeal and set aside the majority decision with a dismissal order of the plaintiff’s case before the trial court. Aggrieved by the High Court’s decision, the plaintiff/respondent appealed to the Abuja division of the Court of Appeal (court below). After reviewing the whole case, the court below allowed the appeal and set aside the judgment of the High Court. It restored and affirmed the majority decision of the trial court.

Dissatisfied further, the defendants/respondents/appellants filed their notice of appeal to this court. The notice of appeal contained two grounds of appeal. The parties filed and exchanged their respective briefs of argument.

The appellants distilled three issues for determination viz:

1. “whether the finding of fact in respect of traditional evidence was perverse or unsound to warrant the appellate court Intervention.
2. Whether the finding of fact in respect of “exhibit 1st made by the Trial Upper Area Court was perverse or unsound.
3. Whether the High Court (Appeals Division) was right to have reassessed and reevaluated “exhibit 1st tendered in this case.”

The respondent filed a notice of preliminary objection which he argued in his respondent’s brief of argument. He then formulated the following issues:

“1. Whether there was evidence to support the Court of Appeal preference of the trial Upper Area Court’s Judgment on traditional history as against the High Court’s position on same; such as to entitle the respondent to the judgment of the Court of Appeal.

2. Whether exhibit 1 has the effect and force of estoppel per rem judicata on the present appeal.”

On the date this appeal was heard, i.e. 28/10/08 learned counsel for the appellant applied to abandon issue no. 1 of the issues formulated for consideration. appellant’s issue no.1 and its corresponding arguments were accordingly struck out.

I think the learned counsel for the appellant, having been alerted by Dr. Mosugu, of counsel for the respondent, in his notice of preliminary objection, took a wise decision to abandon issue one and its arguments so as to avoid multiplicity of issues arising from the same ground of appeal. But the grounds upon which the preliminary objection was based alleged also that all the issues of the appellant were not an attack against the decision of the Court of Appeal but were based on matters treated in the High Court of Kogi State. This objection is well noted. However, although the learned counsel for the appellant did not file a reply brief in answer to the points raised by the preliminary objection, the courts are always in favour of considering cases on their merits rather than on technicalities of the law. Such a brief of argument which fails to adhere to the format of a well written brief can at best be taken to be a badly written brief out of which the court should do its very best to understand it in order to resolve the relevant issues arising there from on their merits. This is the way I take the appellant’s brief and I shall give it the consideration it deserves. See: ACME Builders Ltd. v. KSWB (1999) 2 NWLR (Pt.590) 288.

Issue No.2 of the appellant’s brief is on the trial court’s finding in respect of ‘exhibit 1′. Learned counsel for the appellant submitted that the finding of fact in respect of the said exhibit was perverse, unsound and it amounted to a miscarriage of justice. Learned counsel argued that the trial court unequivocally declared in a ruling that the land was clearly part of the land in dispute. This position was however, radically reversed by the trial court without any reason. The trial court was bound to give reasons for its decision. Learned counsel cited s.132 (1) of the evidence act to argue that the defendant produced and tendered the record of proceedings which was duly certified in order to prove previous proceedings or judgment. To require evidence to corroborate and confirm the authenticity, genuineness or correctness of record of proceedings would be tantamount to acting outside the provisions of the law thereby occasioning miscarriage of justice. He submitted further that exhibit 1 is an evidence that richly deserves a high probative value to establish the fact that the appellants have by this exhibit an evidence of title to the land. Learned counsel argued further that the denial of the plaintiff’s witnesses were made before the exhibit was tendered and admitted in evidence. In the cause of admitting the said exhibit the trial court declared that the exhibit was relevant to the case. The trial court, he submitted failed to carefully examine, understand and appreciate exhibit 1 to enable it resolve the issues before it in accordance with the law. Where a trial court fails to evaluate evidence and findings of fact, it tantamount to an invitation of the appellate court to make its own findings from the evidence, i.e. Exh. 1. He cited Adeleke & Ors v. Iyande & Ors (2001) 13 NWLR (Pt.729) 1 at 20 B-D. Learned counsel urged this court to hold that the findings of fact made by the trial court on exhibit 1 were perverse or unsound.

In his Issue No.1, learned counsel for the respondent made the following submissions: that acts of recent possession/ownership were demonstrated by the respondent. These included the investiture of the Madaki of Ogbajele who was physically presented or paraded during the visit to the locus in quo. Further, 2nd appellant’s shaky story that he was given four pieces of land by the Attah Igala was contradicted by the same Attah who testified as DW2 and who said that he gave 2nd defendant two pieces of land. Learned counsel argued further that the traditional history of the defendants was found to be complete falsehood and unreliable. Learned counsel called in aid the provision of section 44 of the evidence act.

Appellants issue No. 3 is on the High Court’s reevaluation and reassessment of exhibit 1 tendered before the trial Upper Area Court. This according to the learned counsel for the appellants was done by the High Court because the finding of fact in respect of exhibit 1 made by the trial court was perverse or unsound. The learned counsel urged this court to uphold the decision of the High Court as the decision of the trial judge was not based on credibility of the witnesses but also on making findings on such important document as exhibit 1. He submitted that the High Court on appeal and this court has the right to reverse the decision of a lower court if satisfied that same is wrong in law. He cited the case of Nteogwuile v. Otuo (2001) 6 SCNJ 231 at p. 233.

On the issues of res judicata treated under this issue the learned counsel for the appellants contended that the parties in this case are the same as exhibit 1 and the subject and subject matter is the same. The trial court he argued had drawn wrong conclusion from exhibit 1. The trial court had also taken an erroneous view of exhibit 1 and the finding did not flow from the content of exhibit 1. He cited and relied on the case of Onwugbufor & 2 Ors. v. Okoye & 3 Ors. (1996) 1 SCNJ 1 at pp. 33. He urged this court to hold that the High Court appellate division was right to have intervened and made necessary findings as it did to exhibit 1. Learned counsel submitted finally that exhibit 1 being a previous judgment of a court can either be considered as estoppel per rem judicata or properly constitutes an act of ownership and possession. He relied on the case of Chief Akpan & Ors. v. Chief Otong & Ors. (1996) 12 SCNJ 213 at page 222.

Learned counsel for the respondent treated the issue of res judicata in his issue No. 2. He made the following submission; that exhibit 1 in totality has no relevance to the present case and has not occasioned any miscarriage of justice to the appellants. Exhibit 1 has failed all the tests of res judicata as enunciated by the Supreme Court in numerous cases e.g. Iyayi v. Eyigebe (1987) 7 SCNJ are not the same in the two cases. It is learned counsel’s submission that the trial Upper Area Court did not reassess nor reevaluate exhibit 1 on the basis of its credibility. The findings of the trial court on exhibit 1 were very reasonable. The Appeal Court, Abuja was right to have reversed the High Court’s judgment which interfered with the trial court’s finding. He cited and relied on Olowosogo v. Adefanjo (1988) 4 NWLR (Pt.88) 275 at p.289, among other cases.

In treating appellants’ issue No.2; I think I should refer to the record of appeal to identify Exhibit 1: What is that Exhibit Exhibit ‘1’ as reflected in the record of proceedings placed before this court is the proceedings of “Ata Gals” ‘B’ court held at Idah in 1957. The finding of fact on exhibit 1 (referred to as ‘D1′ by the trial court) reads as follows:

“We have critically examined this exhibit and we feel that it does not support the defence case in any way. This exhibit does not contain specific land with boundaries or certainty of the land upon which the palm fruits were disputed. Notwithstanding the existence of this suit or any other suit for that matter on the land which is not tied to any plan, an action for declaration of title can be brought. The case of Ezekpelechi & Ors. v. Ugoji & Ors. (1991) 7 SCNJ 244 is relevant to this position of the law. Both the plaintiff and his witnesses were cross examined about the existence of exhibit “B1” but they denied having the knowledge of such suit. The defence was cross examined and the reply by the 1st defendant was that Idih Ikani has children and one called Ojomaje Idih was in court. None (sic) of the children was called to testify to the existence of the exhibit “D1″. Therefore, no probative value can be attached to this exhibit. We discountenance same.”

The complaint laid in ground C of the notice and grounds of appeal before the High Court appellate division was that the hon members of the Upper Area Court erred in law in not giving due weight to exhibit 1 and this occasioned a miscarriage of justice. Same complaint was placed before the lower court and was formulated in issue 1. The High Court on appeal, held, among other things on exhibit 1 as follows:

“The failure by the trial court to have accorded the desired probative value to exhibit 1 has indeed occasioned a miscarriage of justice and to that extent we agree with A. B. Akogu of counsel that the trial court would have reached a different conclusion then (sic) the one arrived at if they (trial court) did otherwise. This they did not.”

The court below, while dealing with issue 1, quoted the definition of miscarriage of justice given by this court in the case of Total Nig. Ltd. & Anor. v. Wilfred Nwako & Anor. (1978) 5 SC 1. The court below further opined as follows:

To my mind the decision of the trial court does not fall under that definition. There was proper assessment and evaluation of the evidence by the trial court. It was not the duty of the appellate court to re-evaluate and re-assess what had already been evaluated. The duty of evaluating and appraising evidence belongs to the trial court that saw and heard the witnesses, and an appellate court may not disturb a finding or conclusion in a judgment simply because it would have come to a different finding or conclusions on the facts of the case. Woluchem v. Gudi (1981) 5 SC 291 at 326. In the instant case all that is before the court below is the cold printed record, without the benefit of watching the demeanor of the witnesses, the court cannot embark on a reevaluation of the evidence or ascription of other probative value to the evidence adduced as to arrive at a different conclusion from the one arrived at by the trial court. Thus, unless found to be perverse or where wrong inferences have been raised or drawn from accepted facts or that wrong principles have been applied to facts, the appellate court has no business in interfering with findings of facts of a trial court and substituting with their own. Ebba v. Ogodo 1 S.C.N.L.R. 372; Ibodo v. Enarofia (1980) 5.SC42.”

From the decisions of the High Court on appeal and that of the court below as set out above, I prefer to lend my weight to the latter. It is a settled principle of law that where a trial court has carried its assignment satisfactorily, an appeal court shall be left with no option but to affirm such a decision. To do otherwise will institutionalize what the appellate is complaining of, that is miscarriage of justice. See Adeye v. Adesanya (2001) 6 NWLR (Pt. 708) 1 SC, Enang v. Audu (1981) 11-12 SC 25; Ojonu v. Ajao (1983) 2 SCNLR 156; Fatoyinbo v. Williams (1956) SCNLR 274.

Certainly, a trial court has the primary duty in a trial whether civil or criminal to listen to watch and observe the demeanor of witnesses. It has a duty to admit or reject documents or other materials or objects tendered in evidence as exhibits. It has a duty finally, at the close of trial to weigh and ascribe probative value to all the evidence placed properly before it. The trial court normally does that by placing the totality of the testimonies adduced by the parties on an imaginary scale/balance. It will place the evidence adduced by the plaintiff on one side of that scale and place equally, the evidence adduced by the defendant on the other side. It then weighs them together. It then cautiously observes which side weighs heavier. The large number or large retinue of witnesses called by a party, or the bulkiness or beauty of a document should not influence the mind of the trial judge.

What must influence his mind in ascribing the probative value is the quality of the evidence or document engendered. In achieving that the trial judge has to have regard to, among other things, the following:

1. admissibility of the evidence
2. relevancy of the evidence
3. credibility of the evidence
4. conclusivity of the evidence
5. probability of the evidence in the sense that it is more probable than the evidence of the other party and
6. Finally, after having satisfied himself that all the above have been complied with, he shall now apply the law to the situation presented in the case before him so as to arrive at a conclusion in one way or the other.

See Mogaji v. Odofin (1978) 4 SC 91; Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432. This assignment is an exclusive preserve of the trial court. I agree with both the learned counsel for the appellants and the High Court appellate division that an appeal court can also exercise such power/jurisdiction. Yes, an appeal court can do so where the trial court fails, neglects or refuses to do so or does it in an improper way. The appeal court can conveniently embark on such re-evaluation where for instance:

a) the trial court’s evaluation of the evidence is clearly perverse.

b) the trial court drew wrong inferences, from the totality of the evidence.

c) the trial court applied wrong principles of the law to accepted facts in the case.

From the record of appeal, the trial court weighed exhibit 1, and it found at the end that no probative value could be attached to the said document. It discountenanced same. This decision of the trial court, to my mind and as rightly found by the court below is quite unassailable. The view held by the High Court appellate division was that it could have attached probative value to exhibit 1, if it were the trial court. The High Court perhaps forgot that it had no liberty at that stage to translate into reality what it would have done if it was acting as the trial court. This is prohibited by law. See Woluchem v. Gudi (1981) 5 SC 291 at 326. This issue fails and it is decided against the appellants. I do not think I will waste anybody’s time in considering issue two on whether the High Court (Appellate Division) was right to have reassessed and re-evaluated exhibit 1. This is an unnecessary repetition of the issue treated by me above. The simple answer to this issue as I elaborated earlier is that it is not under every circumstance that an appeal court, including a High Court sitting on appeal from courts lower to it, will have the liberty of reassessing or re-evaluating evidence tendered before a trial court. Our High Courts all over the country are fully loaded with cases. It is rare to find a High Court creating or scavenging for more work where none exists. A High Court Judge should discourage the move by parties to overflood his court by allowing unnecessary processes of retrying or reevaluating evidence already properly assessed by a competent court of law or tribunal. This case is one of them. It should have terminated by the High Court’s decision if that court did not submit to the gimmicks played by the appellants’ counsel.

In the final result, this appeal lacks merit and it is hereby dismissed by me. I affirm the decision of the court below. The respondent is entitled to N50, 000.00 costs from the appellants.

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SC.123/2002