The Administrator General and Public Trustee, Delta State & Anor V. Mrs. Stella Ogogo & Anor (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

This appeal is against the decision of M. E. Akpiroroh, J. sitting in Asaba High Court in suit No. A/32/86 delivered on the 11th February, 1994.

The appellants as the Plaintiff before the lower court claimed against the defendant/respondent as per the writ of summons dated the 6th day of November, 1986 for the following reliefs:

(1) A declaration that the plaintiff is the executor of the Will/Estate of Madam Lydia Elikwu (deceased).

(2) A declaration that No.5, Marine Road, Cable Point Asaba is the property of Late Madam Lydia Elikwu.

(3) An order that defendant account for all the money received by her as rents accruing from No.5 Marine Road, Cable Point, Asaba since March 30th, 1976.

(4) An order that the defendant show cause why a fine exceeding one hundred Naira should not be imposed on her for intermeddling with the estate of late Madam Lydia Elikwu.

(5) Perpetual injunction restraining the defendant from further intermeddling with the aforementioned estate.

Pleadings were duly filed and exchanged by the parties. The facts leading to this appeal as can be gleaned from the pleadings the parties and the record of proceedings are that the 1st plaintiff, the Administrator General and Public Trustee, Bendel State of Nigeria is the executor of the last will and testament of Late Madam Lydia Elikwu who died on the 30th March, 1976 in Asaba, Delta State, to administer the property for the sole beneficiary of the Estate of the testatrix one Mr. Benedict Anwuzia Elikwu the 2nd plaintiff/appellant. The 1st appellant was granted letters of administration by the High Court of Justice, Delta State on the 14th of July, 1986 the Will having been proved and registered. In the Will, No. 5, Marine Road, Cable Point, Asaba was listed as the property of the testatrix and the defendant/respondent was alleged to be intermeddling with the property and refused to give possession to the 1st appellant. It was averred that the said No.5, Marine Road Cable Point, Asaba belonged to the testatrix who during her lifetime was an owner in possession of the said property. That the respondent continued her acts of intermeddling as executor de son tort where she continued to collect rents in respect of the property from 30th March, 1976 without accounting to any of the plaintiffs.

On the other hand, the respondent denied the appellant’s claim and states that No.5, Marine Road, Cable Point Asaba is the property of their late father Anthony Ojinma Elikwu which on his death passed to his children by Asaba Native Law and Custom. That Madam Lydia Elikwu was their father’s sister. That it was late Anthony Lydia Ojinma Elikwu who built No.5 Marine Road, Cable Point, Asaba and allowed Madam Elikwu to live on the property until her death. That No.5, Marine Road, Cable Point was never the property of Madam Lydia Elikwu that the property belongs to her father. She denied intermeddling with the property.

By an application dated the 9/2/89, the 1st appellant sought and joined the sole beneficiary of the real and personal properties of the deceased Mr. Benedict Anwuzia Elikwu in the suit as a 2nd plaintiff and was so joined by an order of court dated 14th February, 1989.

The 1st appellant testified by as legal officer, one Ben Adigwe Esq., and called six other witnesses. The 2nd plaintiff testified and called no witness. The respondent testified and called three other witnesses. At the end of the hearing both counsel addressed the court. In a considered judgment delivered on the 11th February, 1994, the learned trial Judge dismissed the appellants claim. This is what the trial Judge held in dismissing the appellant’s claim:

“As between the evidence in the plaintiff’s case and the defendant’s case, I accept and believe the evidence of the defendant’s case as truthfully stating how the land on which No.5, Marine Road, Cable Point, Asaba was acquired. I am quite satisfied on the evidence before me that the father of the defendant acquired the land in 1943 and built No.5, Marine Road which was later inherited by her. The plaintiffs have failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu. The plaintiffs having failed to prove that No.5, Marine Road, Cable Point, Asaba belongs to late Madam Lydia Elikwu they are not therefore entitled to reliefs 2, 3, 4 and 5 sought by them in their statement of claim and they are accordingly dismissed with cost assessed at N500.00 in favour of the defendant”.

The plaintiffs now appellants were dissatisfied with the said judgment and have now appealed to this court. They filed five grounds of appeal. The grounds of appeal without their particulars are hereby reproduced.

Grounds of Appeal

(i) The learned trial Judge erred in law in deciding on an issue that was not in any contest

(ii) The learned trial Judge erred in law and misdirected himself by holding the evidence of DW2 as corroborative of an incident that occurred in 1943; that is to say, the acquisition of the land on which No.5, Marine Road, Asaba was built.

(iii) The learned trial Judge erred in law and as such misdirected himself in relying heavily or attaching heavy weight to the evidence of DW3 as well as the evidence of DW 1.

(iv) The learned trial Judge erred in law and in fact in not making any specific pronouncement or finding in respect of other properties or chattels of late Madam Lydia Elikwu had during her life time, irrespective of No.5, Marine Road, Cable Point, Asaba.

(v) The learned trial Judge erred in law to have relied on exhibits ‘D’, ‘M’, ‘N’ and ‘F’ as indicative of the literacy of late Madam Lydia Elikwu.

In compliance with the rules of this court, briefs of argument were filed and exchanged. In the appellant’s brief five issues were formulated for the termination of the appeal. The issues are:

(1) Whether the trial Judge was right in following or preferring an earlier statement made in an unconcluded case (i.e. A/3177) by PW2 as against his developed evidence in the present case (A/32/86) that No.5, Marine Road, Cable Point, Asaba is the property of late Madam Lydia Elikwu.

(2) Whether the learned trial Judge was right in relying heavily on the evidence of DW2 and DW3 in the presence of heavy contradictions.

(3) Whether the learned trial Judge was right in awarding to defendant a relief she did not seek.

(4) Whether the learned trial Judge was right in his appraisal and evaluation of the totality of evidence adduced from the trial and before him.

(5) Whether the plaintiffs (appellants) proved their case on balance of probabilities or are not entitled to judgment.

On the other hand, the respondent formulated the following issues for determination, viz:

(1) Was the failure of the lower court to make findings and pronounce on the other alleged properties of the testatrix, late Madam Lydia Elikwu an error in law which occasioned any injustice or grave miscarriage of justice in the circumstances of this case?

(2) Corroboration or want of corroboration of the acquisition of the land in 1943 a legal necessity and occasioned miscarriage of justice in this case?

(3) Did the plaintiff discharge the onus of proof that the landed property known as No.5, Marine Road is the property of the testatrix late Madam Lydia Elikwu?

(4) Did the trial Judge properly evaluate and appraise the competing claims of the parties before preferring the case of the defendant and her witnesses to that of the plaintiff’s and their witnesses?

(5) Was the decision of the trial Judge supported by evidence on record?

It is observed that, the respondent incorporated into his brief of argument a notice of preliminary objection. In the said notice, this court was called upon to consider the fact that even though there were two plaintiffs in the suit, only one plaintiff appealed, entered into a bond to prosecute the appeal and that the notice of appeal from which this appeal emanates from is signed by the 1st plaintiff/appellant alone.

It is also submitted that no issue appeared to have been formulated from grounds of appeal Nos. i, iv, and v. It is the view of the learned counsel that since there were no issues formulated there from, argument could not legally have been proffered in respect of them. It is argued that since only proper issues emanating from grounds of appeal are argued and not the grounds themselves those grounds are deemed abandoned. It is therefore submitted that since no argument are contained in the appellant’s brief, it will not be proper for the respondent to agitate issues more than what the appellant intended. Learned counsel referred to the following cases, SHA (Jnr.) & Ors. v. Kwan & Ors. (2000) 78 LRCN 1645 at 1664: (2000) 8 NWLR (Pt. 670) 685 Dantata & Anor. v. Mohammed (2000) 78 LRCN 1459-1460; (2000) 7 NWLR (Pt. 664) 176. We were asked to strike out or dismiss the said grounds of appeal.

It is also submitted that no proper issue can be raised from ground of appeal No. iv because it is not competent in this appeal. It is argued that the other alleged properties of the testatrix were not claimed in the amended writ and the amended statement of claim and that issues were not joined in the amended statement of defence apart from the disputed inventory exhibit H. It is submitted that the lower court could not be held to be wrong to have no finding on issues not before it. That the ground is raised invacuo and it is incompetent and we were urged to strike it out.

Suffice it to say, that no reply brief has been filed by the appellants in response to the preliminary objection raised by the respondent. The legal implication of the failure to file reply brief is that he is deemed to have conceded to the points raised. Where an appellant fails to file a reply brief where it is necessary to do so as in the instant case, he will be deemed to have conceded all the points raised in the preliminary objection from the respondent’s brief. See Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Orah v. Nyam (1992) 1 NWLR (Pt. 217) 279. Be that as it may, I have a duty to consider the legal position of the objections raised. The first objection challenged the competence of the 2nd appellant to prosecute the appeal. That only the 1st appellant entered into a bond to prosecute the appeal and that the notice of appeal was signed by the 1st appellant alone.

Order 3 rule 2(1) of the rules of this court provides:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ”the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service”.

Order 3 rule 5 further provides:

“An appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below”.?

In the instant case, the 2nd plaintiff/appellant whose name is now sought to be struck out by the respondent, Benedict Anwuzia Elikwu was joined in the suit at the instance of the 1st plaintiff/appellant vide a motion dated 9/2/89. The 2nd appellant, under the Last/Will and testament of late Madam Lydia Elikwu, was the sole beneficiary of the testatrix estate. He was accordingly so joined by order of court made on the 14/2/89. He filed a statement of claim. He testified and participated in the proceedings before the trial court to the end. He does not seem to have a separate representation from the record of the court different from that of the 1st plaintiff. In the notice and grounds of appeal, the name of the 2nd appellant clearly appeared and referred to as such and they were both referred to as plaintiffs/appellants. In every page of the record where the names of the parties appear, the name of the 2nd plaintiff is reflected as the 2nd plaintiff. It is observed that the bond entered into for the prosecution of the appeal does not reflect the name of the 2nd plaintiff therein.

The question is, in the circumstances of this case, is the failure of the 2nd plaintiff to personally execute a bond for the prosecution of the appeal sufficient to bar him from the prosecution of same?. It is observed that the 2nd plaintiff was joined in the suit at the instance of the 1st plaintiff who was represented throughout the trial by a legal practitioner. It is the 1st plaintiff’s counsel who signed the bond and not the 1st plaintiff in person. The fact that the 2nd plaintiff did not sign the bond does not vitiate his capacity to prosecute the appeal. It is my view that the objection on this ground is merely technical for in any case, the court in certain circumstances waive non compliance with the rules or any rules of practice, see Order 7 rule 3(1) of this court. Furthermore, it is the function of the court to ensure that in all cases substantial justice is done without having due regard to technicalities. See Okegbu v. State (1979) 11 SC 71 at 86 and Apon v. Fayemiwo (1969) 1 NMLR 233 at 235. This objection is over ruled.

It is argued by the respondent that since there were no issues formulated from grounds of appeal Nos. i, iv and v, they should be struck out or dismissed. An issue for determination in an appeal is a substantial question of law or of fact or both arising from the grounds of appeal filed in the appeal, which when resolved one way or the other will affect the result of the appeal. See Chief lmonikhe & Ors. v. A.-G., Bendel State & Ors. (1992) 6 NWLR (Pt. 248) 396; Ngilari v. Mothercat Ltd. (1993) 8 NWLR (Pt. 311) 370. Where no issue is formulated in respect of a ground of appeal and the appellant fails to pursue to or canvass argument in his brief on the ground of appeal, such ground of appeal would be deemed to have been abandoned and would therefore be struck out by the appellate court. The Supreme Court in Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 said per Ogwuegbu, JSC, at page 138 that,

“No issue was formulated in respect of ground 7. In the circumstances, the Court of Appeal should have struck out ground 7 of the grounds of appeal as having been abandoned”.

See also Oniah v. Chief Onyia (1989) 1 NWLR (Pt. 99) 514 and Niger Progress Ltd. v. North East Line Corp. (1989) 3 NWLR (Pt. 107) 68.

I have carefully perused through the appellant’s notice and grounds of appeal and the appellant’s brief of argument and I agree with the learned respondent’s counsel that no issues appeared to have been formulated by the appellants in respect of grounds i, iv and v of the appellant’s grounds of appeal. The grounds are hereunder stated:

(i) The learned trial Judge erred in law in deciding on an issue that was not in any contest.

(iv) The learned trial Judge erred in law and in fact not making any specific pronouncement or finding in respect of other properties or chattels late Madam Lydia Elikwu had during her life time, irrespective of No.5, Marine Road, Cable Point Asaba.

(v) The learned trial Judge erred in law to have relied on exhibits ‘D’, ‘M’, ‘N’ and ‘P’ as indicative of the literacy of late Madam Lydia Elikwu.

The essence of filing grounds of appeal is to bring to the fore the real complaint of the appellant against the judgment appeal against. As no issues are formulated on the said grounds filed, they are therefore deemed abandoned and are accordingly struck out.

Since no arguments are contained in the appellant’s brief, it is not for the respondent to proffer arguments thereon. Sha (Snr.) & Anor. v. Kwan (2000) 78 LRCN 1645, (2000) 7 NWLR (Pt. 664) 176 and Dantata & Anor. v. Muhammed (2000) 78 LRCN 1422, (2000) 8 NWLR (Pt. 670) 685.

It is also contended by the respondent’s counsel that issue No. 3 in the appellant’s brief is not covered by any of the grounds of appeal and argued that same be struck out. I think I agree with him. I have carefully considered issue No.3 as formulated by the appellant. It is, “whether the learned trial Judge was right in awarding to defendant a relief she did not seek”. This issue is not covered by any of the grounds of appeal as earlier reproduced in this judgment. Issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal. In Idika & Ors. v. Erisi & Ors. (1988) 2 NWLR (Pt. 78) 563 the Supreme Court per Nnaemeka Agu, JSC, held at pages 79 that issues or questions for determination are framed from the grounds of appeal properly before the court. They do not arise in nubibus from the skies. Also in General Oil Ltd. v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) 613 it was held that, issues formulated by a party for determination in an appeal which do not arise out of the grounds of appeal will be deemed irrelevant and will not be countenanced in the determination of the appeal. Based on the above, I too will not countenance issue No.3 in the instant case as it is irrelevant as it does arise out of the grounds of appeal filed before the court.

Having disposed of all the preliminary issues raised in this appeal I will now turn to the appeal proper. Learned counsel for the appellants has formulated five issues for determination in this appeal. Appellant’s ground of appeal number i, iv and v have been struck out because no issue appears to have been formulated by the appellant from the said grounds of appeal out of the five issues formulated for determination. Issue three (3) has been discountenanced as it was not covered by any of the grounds of appeal filed.

In the determination of this appeal, I will adopt the issues as formulated by the respondents with little modification. It appears to me that the respondent’s issue number one arose from ground of appeal No. iv which has been struck out on the ground that no issue has been formulated by the appellant therefrom. The reason being that the other alleged properties of the testatrix were not claimed in the writ of summons and the amended statement of claim and that no evidence was led on them. It is therefore discountenanced. Since the appellants’ issue Nos. 1, 2 and 4 are subsumed into the respondent’s issue No. 3.04 and also appellant’s issue No.5 is also covered by the respondent’s issue No. 3.03, the appeal will be considered as such.

It is also contended by the learned counsel for the respondent that the appellant appeared to confuse appraisal and evaluation of evidence and corroboration as appeared on page 2, 3(2) of the brief. That since the appellant formulated no issue on ground 2 of the grounds of appeal, the ground is deemed abandoned and should be dismissed and since he argued an issue he did not formulate, his said argument should be ignored as being without basis.

I have carefully considered the appellant’s ground No.2 of the grounds of appeal and the issues formulated by the appellant. I do not agree with the respondent’s counsel that no issue has been formulated in respect of ground No.2. It is my considered view that ground 2 of the grounds of appeal can be linked to issue 2 formulated for determination. It is therefore a proper and valid ground, it is on the issue of corroboration. Both ground No.2 and the issue formulated there under are valid and competent and so find.

I have also considered the appellant’s issue one (1) for determination which is:

(1) Whether the trial Judge was right in following or preferring an earlier statement made in an unconcluded case (i.e. A/3/77) by PW.2 as against his developed evidence in the present case (A/32/86) that No.5, Marine Road, Cable Point, Asaba is the property of late Madam Lydia Elikwu.

The arguments canvassed in the appellant’s brief relate to the issue of estoppel. There is no where in the judgment of the lower court that he applied the principle of estoppel in deciding the matter before him and the issue does not arise whatsoever from the proceedings before the trial court. The fact that a witness testified in respect of a suit he instituted in 1977 and in the instant case, in which he testified as witness with the regard to the same subject matter does not necessarily mean that estoppel applies and the lower court did not make such a pronouncement. This issue being not covered by any of the grounds is irrelevant is hereby discountenanced.

Arguing issue No.2, learned counsel for the appellant submitted that there is no corroboration in the conflicting evidence of DW 2 and DW 3. Learned counsel defined what corroboration means and reviewed the evidence of DW 2, DW 3 and the appellant/respondent and submits that the trial Judge wrongly held that there is corroboration in the evidence of DW 2, DW 3 and the respondent.

It is submitted for the respondent that corroboration is not legally necessary in this case. Learned counsel referred to sections 177, 178 and 179 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, that there is no particular number of witnesses required for the proof any fact. It is submitted that the issue before the lower court was as to the ownership of No.5, Marine Road, Asaba in a civil case, whether it is owned by the testatrix Madam Lydia Elikwu or the father of the defendant Mr. Anthony Ojinma Elikwu. Learned counsel referred to a book, Law and Practice to Evidence in Nigeria (Sweet & Maxwell, 1980) by Aguda page 336, paragraph 2004, and submitted that corroboration is not legally required in the instant case as no provision of the law has been breached to warrant the setting aside of the judgment of the trial court.

Learned counsel referred to the evidence of DW2 and DW3 and submitted that the learned trial Judge did not say that the evidence of DW3 corroborated that of DW.2. Learned counsel referred to the finding of the learned trial Judge from the record at pages 234 and submitted that the learned Judge held that the defendant’s evidence of her father’s acquisition of the land in 1943 was corroborated by DW.2 and DW.3 respectively. It is further submitted that there are evidence from both DW.2 and DW.3 supportive of the root of title to 5, Marine Road Asaba, subsequent acquisition by the defendant’s father and the building of the house by the testatrix for and with the funds of the defendant’s father. It is further submitted that there are no material conflicts or contradictions between the defendant’s evidence of those of DW2 and DW3. It is submitted that the mere fact that DW3 said he was not around when defendant’s father gave drinks to the Umuezie people does not deprive him of still being able to be known as an Asaba man, nor does it translate to a material contradiction, nor does the fact that DW2 knows the defendant’s father by one of his first names ‘Ojinma’ and not by his English name ‘Anthony’ amount to any material contradiction.

The crux of the appellant’s complaint on this issue is the finding by the trial court that the evidence of DW3 corroborated the evidence of DW2 in all material particulars despite the conflicting nature of their evidence before the trial court. This is what the trial court said while reviewing the evidence of witnesses adduced before it, particularly that of DW2 and DW3 at pages 228 and 229 of the record of appeal after a review of the evidence adduced by the witnesses for the plaintiff.

“DW 2 was Right Reverend Doctor Thomas Okoli and he corroborated the evidence of the defendant in all material particulars as to how the defendant’s father acquired the land and built on it. Under cross examination, he said that he was a tenant and paid his rents to the defendant”.?

“DW 3 was Conelius Ofili Obionem and he also corroborated the evidence of the defendant as to how her father acquired the land and built the house on it. Under cross examination he said on one occasion the father of the defendant sent the sum of 25 pounds through him to late Madam Lydia Elikwu for the building of the house when he was coming from Zaria to Asaba”.

The trial court went on to find at page 234 of the record that, “Her evidence that her father acquired the land in 1943 was corroborated by the evidence of DW2 and DW3 …in all material particulars …”?

Corroboration as defined by the appellant in his brief of argument on page 6-7, from Blacks Law Dictionary, Sixth Edition at page 334 means:

“To strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence” and, “the testimony of witnesses is said to be corroborated when it is shown to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established”.

The definition above is very clear. What in effect the trial Judge means is that the testimonies of the defendant/respondent correspond with the presentation of the evidence of DW2 and DW3 in material particulars which means on essential points germane to the determination of the issue before it. That, the evidence of the defendants is strengthen by the additional evidence of DW2 and DW3.which added credibility to evidence adduced by the defendant”.

Now the question is, what are the alleged conflicts or contradictions in the evidence of DW 3 as argued by the appellants?

The appellant has not specified or identified any of the alleged conflicts or contradictions in the evidence of DW2 and DW3 in his brief. However, learned respondent’s counsel reviewed the evidence of the DW.2 and DW.3 as adduced before the trial and submitted that there are no material conflicts or contradiction between the defendant’s evidence and those of DW2 and DW3.

The defendant/respondent in her testimony before the trial court gave evidence supportive of her root of title to No.5, Marine Road, Asaba. The subsequent acquisition by the defendant’s father and the building of the house by the testatrix for and with the funds of the defendant’s father. The defendant testified that the land was, originally occupied by one Ojogwu. Late Anthony Elikwu got the land from Ojogwu and that the land in which the house was built was formally owned by Ojogwu who sold it to Ojinma. The defendant testified that after the acquisition her father gave the testatrix a notebook to record the expenses of the building as he was sending her money for the building. The notebook was admitted in evidence as exhibit ‘B’. DW3 stated on his evidence that the defendant’s father was sending money from Zaria to the testatrix to build the house for him. That on one occasion he sent the sum of 25 pounds through him to late Madam Lydia Elikwu for the building of the house and when he got home he gave the money to late Madam Elikwu.

The records of the court are replete with evidence supportive of the defendant’s case as to the acquisition of the land and the building of the house known as No.5, Marine Road, Asaba. In the circumstances, therefore I agree with the submission of the respondent’s counsel that there are no material conflict or contradictions between the defendant’s evidence and those of DW2 and DW3. The mere fact that DW3 said he was not around when defendant’s father gave drinks to the Umuezei people does not translate to material contradiction as to vitiate the proceedings in the instant appeal, nor does the fact that DW2 said he knows the defendant’s father by one of his names ‘Ojinma’ and not by his English name ‘Anthony’ as to amount to a material contradictions.

For contradiction in evidence of witnesses to vitiate the proceedings, it must be a material contradiction which strike at the basis of the case and sufficient to raise doubt in the mind of the court and not merely trivial. This issue is therefore resolved against the appellant.

The next issue is whether the learned trial Judge properly evaluate and appraised the competing claims of the parties before preferring the case of the defendant and her witnesses to that of the plaintiffs and his witnesses?

It is submitted for the appellants that the trial Judge wrongly accepted the evidence of the defence. That the appellant has established a preponderance of probability or balance of probabilities in his favour. It is submitted that it is the duty of a trial Judge to evaluate relevant and material evidence and decide the issues raised on the pleadings before him and that in the instant case, the trial Judge has come to a wrong conclusion without properly evaluating the evidence before him citing the following cases: Akibu v. Opoleye (1974) 11 SC 180 at 203 and Olusanya v. Olusanya (1980) AC 105, (1983) 1SCNLR 134. We were urged to resolve the issue in favour of the appellant.

For the respondent it is submitted that the trial court discharged its duties in the proper appraisal and evaluation of the parties claims.

That where the claims of the parties are competing and conflicting, the pleadings have to playa role and the oral testimonies of the parties and their witnesses have to be tested with the content of the documentary evidence and the demeanor of the witnesses. It is also submitted that it is the duty of an appellant who alleges improper evaluation of evidence to demonstrate from the records how relevant, material evidence were ignored, misplaced or not accorded their due weight by the trial Judge. It is submitted that the appellant at page 8 of his brief has failed in this duty. It is also submitted that wrong evaluation and appraisal of evidence is different from wrong admissibility of evidence argued in paragraph 2 of page 8 of the appellant’s brief of argument. It is contended that it is the appellant’s duty to demonstrate from the record how the trial Judge erred and the impact of such error as occasioning grave miscarriage of justice.

That the case of Akibu v. Opeleye (supra) does not support the complaint of the appellant which deals with unchallenged evidence before a trial court.

I have considered the submission of both counsels on this issue.

Evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and duly assessed the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably assesses the facts, the duty of the Court of Appeal is to find out whether there is evidence on record on which the trial court could have acted, once there is sufficient evidence on record from which the trial court arrived at its findings of fact, the Court of Appeal cannot interfere.

The findings of fact made by a trial court are entitled to respect by an appellate court when it is clear that the trial court has adequately performed its primary duty of evaluating and ascribing probative values to the evidence before it. See Enang v. Adu (1981) 11-12 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Joe Goiday Co. Ltd. v. CD.B. Plc. (2003) 5 NWLR (Pt. 814) 586 and Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337.

In the instant appeal, the trial court identified the issues that calls for determination and reproduced the relevant pleadings of both sides on the issue and appraised the evidence of the plaintiffs/appellants witness Chief James Iloba George Onyia. The trial court found that this crucial witness evidence as to the vital issue of acquisition of title was at variance with the pleadings. His evidence is contrary to the other witnesses on this issue. The trial court also found that though he claimed to have sold the property in dispute, he did not prove his root of title or the custom under which he inherited from his late brother when he said he inherited his responsibility. The trial Judge also considered the evidence of other witnesses and come to the conclusion that the appellants have failed to prove that No.5, Marine Road, Asaba belongs to late Madam Lydia Elikwu. Based on the foregoing, it is my view that the trial court properly evaluated and appraised the evidence adduced before it by the parties and its findings are not perversed. There is enough evidence on the record from which trial court’s findings can be supported. This issue is also resolved against the appellants.

The next issue for determination is whether the plaintiffs have discharge the onus of proof that the land property known as No.5, Marine Road, is the propel1y of the testatrix, late Madam Lydia Elikwu. The appellant’s equivalent issue is whether the plaintiff/appellants proved their case of balance of probabilities. Unfortunately, no argument was advanced in the appellant’s brief on this issue. The issue having not been argued is deemed abandoned.

It would therefore be an academic exercise to dwell into it as argued in the respondent’s brief.

Finally, having resolved the issues raised in the appeal against the appellant, the appeal fails and it is hereby dismissed. The judgment of the lower court delivered on the 11/2/94 is hereby affirmed. The respondents are entitled to cost which I assess at N3,000.00 only.

Other Citations: (2005)LCN/1767(CA)