➥ CASE SUMMARY OF:
Charles Oboh (defending for his lawful Attorney Mrs. Dupe Erhabor) V. Ghana Oboh (suing through his lawful Attorney Sunday Oboh) (2021) – CA/B/372/12
by Branham Chima.
➥ PARTIES:
⦿ APPELLANT
Charles Oboh (defending for his lawful Attorney Mrs. Dupe Erhabor)
⦿ RESPONDENT
Ghana Oboh (suing through his lawful Attorney Sunday Oboh)
➥ COURT:
Court of Appeal – CA/B/372/12
➥ JUDGEMENT DELIVERED ON:
5 May 2021
➥ SUBJECT MATTER
Esan (Ishan) inheritance.
➥ THIS CASE IS AUTHORITY FOR:
⦿ APPELLANTS’ ISSUE WILL BE ADOPTED
It is observed that the issues raised by each party reproduced supra are similar save for difference in couching language style. I will therefore adopt the Appellant’s issues as my guide in the determination of this appeal for the simple reason that he is the owner of the appeal. — B.B. Aliyu, JCA.
⦿ ALLEGING MISDIRECTION OF LAW
It is trite law that where a party alleged misdirection of law, he must show particulars of the misdirection related to a specific finding or observation or reasoning in the judgment of the trial Court. The particulars of the alleged misdirection must necessarily be stated because not every misdirection will be fatal to the decision of the trial Court or lead to setting same aside on appeal. See M/V CAROLINE MAERSK and ORS. v. NOKOY INV. LTD (2002) LPELR- 3182 (SC) and OKOTIE-EBOH v. MANAGER and ORS. (2004) LPELR. — B.B. Aliyu, JCA.
⦿ WHEN MAIN CLAIM IS WITHDRAWN, THE COUNTERCLAIM BECOMES THE MAIN CLAIM
I agree with the Respondent’s argument that having withdrawn his claim, the Respondent only defended the suit and the Appellant being the claimant has the onus to prove his claims before the trial Court to entitle him to the reliefs he sought including perpetual injunction. In fact, in my view, it is a wrong nomenclature used to refer to the Appellant’s claim as a “counter claim” especially as it was filed after the Respondent’s initial claim was withdrawn and struck out, which fact was stated/admitted by the Appellant in paragraphs 5.1 to 5.2 of his brief of argument and in item 3 of his summary of facts in paragraph of the said brief … This proposition/contention is wrong in law because the withdrawal of the suit by the Respondent before leave was granted to the Appellant to “counter claim” means that there was no claim the Respondent was prosecuting. His claim was struck out and therefore only the claim of the Appellant remains and the role of the Appellant in that suit was the claimant while the Respondent became de facto and de jure the defendant of the suit and ought to be addressed as such. — B.B. Aliyu, JCA.
⦿ WHAT APPELLANT MUST DO WHEN HE ALLEGES FAULTY EVALUATION OF EVIDENCE
Evaluation of evidence entails the trial Judge examining of all evidence before him before making a finding. This is done by putting all the evidence on an imaginary scale to see which side outweigh the other by way of credible evidence. See LAFIA L. G. v. EXEC. GOV. OF NASARAWA STATE (2012) LPELR-20602 (SC). So where the Appellant complained that the judge did not evaluate evidence properly as in this case, he has the duty to show the Appellate Court how the correction of the omission will make the decision wrong and liable to be set aside. For example, the Appellant must show which admissible evidence the trial Judge rejected or inadmissible evidence he relied upon to the extent that resulted in a miscarriage of justice. In other words, it is not just enough to complain against the evaluation of evidence, but the Appellant must show that the decision of the trial Court was wrong. See PETROLEUM (SPECIAL) TRUST FUND v. WESTERN PROJECT CONSORTIUM LTD and ORS. (2006) LPELR-7719 and ODUNUKWE v. OFOMATA and ANOR. (1999) 6 NWLR (PT. 602) 416 at 425 (CA). The law has been stated and re-stated in uncountable number of decisions of this Court and the Supreme Court that the duty of evaluation of evidence and the ascription of probative value to such evidence is the primary duty of the trial Court. This is especially so where the evaluation of evidence is on the conflicting oral testimonies and belief or disbelief of such evidence. The Appellate Court cannot be in a position to recapture that advantage that the trial Judge had in observing the witnesses as they testified. Therefore, unless the Appellant satisfied this Court as an Appellate Court that the decision of the trial Court was wrong vide improper evaluation of evidence, we have no business re-evaluating the evidence to substitute our own decision for that of the trial Court. — B.B. Aliyu, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Balkisu Bello Aliyu, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Elder J.O. Aghimien (SAN).
⦿ FOR THE RESPONDENT
Miss J. E. Edosa.
➥ CASE FACT/HISTORY
The facts of the case are that the Respondent and the Appellant are brothers born of the same father, late Chief P. O. Oboh, who died intestate in 1994, but they are from different mothers. The Appellant was the first son of late Chief while the Respondent is the 3rd son. Their father had properties at Ibadan Oyo State, at Benin City and at his hometown of Igueben in Edo State. It was the claim of the Respondent that the property in dispute, known as No. 6B, Midwest Street formally No. 21, Midwest Lane Ward 40/A, Uselu, Benin City was assigned to him by late Chief Oboh during his lifetime by way of sale that took place sometimes in 1993 in consideration of his love and affection for the Respondent together with an undisclosed amount of money. He relied on a deed of assignment and a survey plan registered in September 1995 after the death of Chief Oboh. In the course of the trial, the Appellant who was the defendant (Jones Oboh) died and was substituted by his eldest son Charles Oboh, the present Appellant, then defending the suit through his Attorney Mrs. Dupe Oboh Erhabor. In response to the claims of the Respondent, the Appellant/defendant filed a further amended statement of defence and counter claim (pages 37 to 40 of the record of appeal) denying the claims of the Respondent and alleged that the house claimed by the Respondent was built by his late father who never informed any of the family members that he sold same to the Respondent/Plaintiff. He contended that the deed of assignment the Respondent relied upon was forged after the death of Chief Oboh and that contrary to the false claim of the Respondent/Plaintiff that the certificate of occupancy in respect of the house was lost, it is available and would be relied upon during trial of the suit. The Appellant relying on the same facts counter-claimed against the Respondent regarding the same property. He claimed that according to the Ishan Native law and Custom, the eldest surviving son of a deceased inherits ALL the properties left behind by the deceased who dies intestate and pleaded that he would lead evidence to prove this customary law. By that Ishan customary law, the Appellant being the eldest son of late Chief Oboh became the beneficial owner of the property known as house number 6B Midwest Street, Benin City, where the Appellant’s late father lived with his family since the death of his father (Appellant’s grand father). That the late Chief Oboh informed the Appellant’s father that the title documents of the disputed house were kept with a reputable bank in Benin city. That after the funeral of his father, (Late Jones Oboh) distributed the inherited properties and he gave a five flats storey building situate at No. 6A, Midwest Street, Benin City to the Respondent/Plaintiff’s mother and her children and he also gave the Respondent a five bedroom bungalow and a store situate at Afuda Igueben. He further claimed that the Respondent was fraudulent in the purported deed of assignment, which he registered as No. 35 at page 35 volume 857 of the Lands Registry Benin City because the deed of assignment he relied upon was made after the death of Chief Oboh. That the signature of Chief Oboh on the said deed of assignment was forged and it is not the same as his actual signature on the certificate of occupancy in respect of the disputed house and that the certificate of occupancy was not missing contrary to the claim by the Respondent.
He also asserted that in 2003 the Appellant’s late father had him summoned before the Chiefs of Igueben about the sharing of their late father’s estate. After hearing from the parties, the Enogie of Igueben and some of his principal chiefs unanimously decided that in accordance with the Igueben native law and custom, the Appellant’s late father should have all other houses except the disputed house known as No. 6B 2nd Midwest Lane Uselu Quarters Benin City. It was pursuant to this ruling of the Enogie of Igueben that the Respondent withdrew the main claim but the Appellant proceeded with his counter claim) resulting in the trial on only the counter claim of the Appellant.
During the trial of the said counter claim, the Appellant’s attorney testified on his behalf and called two other witnesses and tendered five exhibits in support of the counter claim. The Respondent as defendant to the counter claim also testified through his attorney and called other witnesses through whom he also tendered documents. Counsel to both parties filed and adopted written final addresses. In the Court’s judgment, the learned trial Judge held inter alia that: The defendant counter claimant has not satisfied this Court by cogent and credible evidence that he is entitled to the declaration he seeks in paragraph 25(a) to wit: that the defendant’s late father Pa Jones Oboh was the rightful owner by inheritance of the house known as No. 6B Midwest Street, Benin City and that the defendant, being the eldest surviving son of late Defendant (Pa Jones Oboh) is entitled to inherit same.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the trial Judge having agreed in the evaluation of his evidence in this case that Exhibit D5 (i.e. minutes of customary arbitration) was not binding on the Defendant (now Appellant) because it was made during the pendency of the suit, was right in relying on the same document in coming to the conclusion to reject the Appellant’s counter claim of trespass to the property in dispute?
RULING: IN RESPONDENT’S FAVOUR.
A. THE TRIAL COURT NEVER SAID THAT THE EXHIBIT D5 IS INADMISSIBLE
[‘The complaint and argument of the Appellant canvassed before us under this issue is that since the learned trial Judge held exhibit D5 ‘was not binding on Appellant’ he ought not rely on the same exhibit that he declared “inadmissible evidence” on the ground that it was made during the pendency of the suit and it ought to have been expunged from the record. Indeed, the Appellant made the exact same argument before the trial Court, and the learned trial judge’s decision on that argument is contained in page 175 of the record of appeal thus: “On the issue that Exhibit D5 was made during these proceedings by an interested party and therefore inadmissible, it is pertinent to state that it is the Defendant counter claimant’s father late Jones Oboh who initiated the proceedings in Enogie of Igueben palace that led to Exhibit D5 while this suit was pending. This suit was initiated on 13/2/2003 and the customary arbitration in the Enogie’s palace took place in August of the same year. It is my view that Exhibit D5 was made at the instance of late Jones Oboh and not the plaintiff. The fact that the decision went against him is immaterial. He cannot turn around to say it was made by the Plaintiff as an interested party. Defendant too is an interested party.” The above finding is of fact that indeed the Appellant’s late father initiated the proceedings leading to Exhibit D5, which he turned around to argue that it was inadmissible evidence. In fact, it was as a result of the proceedings contained in exhibit D5 that the Respondent withdrew his claims, but the Appellant then proceeded to file what he erroneously termed a “counter claim”, which indicated that he rejected the verdict of the traditional ruler. It was because of his rejection of the Enogie’s verdict that the trial Court held, rightly, that the customary proceedings of Enogie of Iguebe could not operate as estoppel by way of res judicata against the Appellant, which it could have if he had accepted the decision contained therein. This was only as far as his right to proceed with his claim before the High Court was concerned and no more. Therefore, exhibit D5 remained evidence before the trial Court having been pleaded and issue joined on it as I earlier alluded. Despite the fact that it was rejected by the Appellant in preference for his case to be determined by the lower Court, his rejection of the Enogie’s verdict in exhibit does not mean it was inadmissible evidence especially in view of the evidence of its maker, the Respondent’s witness through whom it was admitted. Again I find that contrary to the contention of the Appellant, the trial Judge never pronounced exhibit D5 as “inadmissible evidence”. It is clear that the decision of the trial Judge that the Appellant quoted in paragraph 4.11 of his brief supports this finding and for avoidance of doubt, the learned trial Judge held that: “I find therefore that the Plaintiff (Defendant of counter claim) has not in his pleadings and by exhibit D5 satisfied the requirements in law for the Court to hold the customary arbitration between the parties by the Enogie of Igueben as estoppel against the Defendant. So I agree with the submissions of defendant (Counter claimant’s) counsel that the customary arbitration conducted by the Enogie of Igueben cannot bind the Defendant counter claimant.” (Underlining supplied). The contention of the Appellant that the trial Judge declared exhibit D5 inadmissible and yet relied on it is incorrect and designed to mislead us. It is hereby disregarded.’]
B. IT WAS THE APPELLANT WHO INTRODUCED THE SAID EXHIBIT HIMSELF
[‘I am in agreement with the learned trial Judge’s holding that the Appellant having initiated the proceedings of the customary arbitration that went against his interest cannot turn around to declare it inadmissible evidence. It is tantamount to evidence against self-interest and the opponent is entitled to rely on such evidence against the party.’]
C. INHERITANCE IN ISHAN IS BY ALL SONS EXCEPT THE PROPERTY WHERE THE MAN DIED
[‘The record shows that it is indeed the evidence of the Appellant that corroborated the defence of the Respondent that in Ishan customs, all the sons are entitled to inherit their father’s properties except the property where the deceased is buried which is exclusively inherited by the 1st son.’]
.
.
II. Whether the trial Court has not misdirected itself in law and/or on the facts of this case and thereby occasioning miscarriage of justice when it failed to grant the consequential order of perpetual injunction against the Plaintiff’s continued trespass on the property in dispute?
RULING: IN RESPONDENT’S FAVOUR.
A. BEFORE THE CONSEQUENTIAL ORDER CAN BE GRANTED, THE APPELLANT MUST PROVE HIS CASE
[‘As stated earlier, the order of perpetual injunction sought by the Appellant was consequential to the declaration of his right of ownership by inheritance of the disputed house. It follows therefore, as rightly argued by the Respondent, that there must be a finding regarding his right to ownership of the property before a ‘consequential’ order of perpetual injunction can be validly made against the Respondent. In other words, the Appellant must prove, by credible evidence, his entitlement to the ownership of the disputed property by inheritance and in accordance to the Ishan native law and custom, which is his main claim, before a consideration of a perpetual injunction in his favour can be made. In the case of IDOGBO and ORS. v. AJAYI (2017) LPELR- 42435, BARKA, JCA speaking for this Court held at page 24, paragraph A-E that: “It is the law, that where a party is laying claim to title to a piece of land by inheritance and there is no will to attest to the mode of the inheritance, he must call witnesses to testify as to his entitlement to inherit the said landed property under the appropriate native law and custom. In the instant case, the plaintiff having asserted that he inherited the property in contest under the Ora Native law and custom of inheritance, has the duty of proving his assertion by credible, compelling and acceptable evidence. It is only when the plaintiff succeeds in proving the assertion, that the defendant now offers his side of the story, which will then be placed on each side of the proverbial scale in reaching a verdict as to which weighs higher in value. The onus is therefore squarely on the Appellant who asserted his title to the disputed property by inheritance under Ishan customary law to first establish, at least prima facie, this claim before the trial Court can even give a glance at the defence of the Respondent in order to apply the preponderance of evidence rule. Thus, the withdrawal of the claims by the Respondent does not obviate the Appellant of this onus of proof or automatically mean that the Appellant is entitled to the grant of his claim as he posited in paragraphs 5.2 to 5. 3 of his brief of argument. It only means that there is only one claim before the Court and the principle of law enunciated supra must be applied. The Appellant has to satisfy the Court by evidence that he is entitled to his claim regardless of the defence of sale inter vivos put up by the Respondent.” The record shows that the learned trial Judge after considering the evidence led by the Appellant held in page 183 of the record of appeal that the Appellant has not satisfied him by cogent and credible evidence that he is entitled to the declaration that his late father was the rightful owner by inheritance of the house in dispute and that the Appellant being the eldest surviving son of the late defendant (Pa Jones Oboh) is entitled to inherit the same. Consequently, there was no basis to grant a perpetual injunction, having refused to grant the declaration of title to the disputed property sought by the Appellant. In the circumstance, the learned trial Judge properly directed himself in law and in facts when he laid the burden of proof on the Appellant and not the Respondent. I have not seen any nits-direction on the part of the learned trial Judge let alone a miscarriage of justice as contended by the Appellant that will necessitate my intervention.’]
.
.
.
✓ DECISION:
‘Having resolved all the issues against the Appellant, this appeal lacks merit and deserves a dismissal. I dismiss it. I affirm the judgment of the Edo State High Court delivered on the 26th April 2012 delivered by Justice E. A. Edigin. Parties shall bear their respective costs.’
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ WHEN WEIGHT OF EVIDENCE IS ALLEGED, MEANING
In the case of AWUSA v. NIG. ARMY (2018) LPELR-44377 (SC) the Apex Court held that: “The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent. Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence…”
➥ REFERENCED (OTHERS)