Legalpedia Citation: (2023-07) Legalpedia 40616 (CA)

In the Court of Appeal

Holden At Akwa Ibom

Mon Jul 31, 2023

Suit Number: CA/AW/24/2020

CORAM

Peter Oyinkenimiemi Affen JCA

Ibrahim Wakili Jauro JCA

Obietonbara Owupele Daniel-Kalio JCA

PARTIES

MRS. EBELECHUKWU ANYAEGUNAM

APPELLANTS

1. MR. CHIJIOKE IGWENDU
2. MR. CHUKWUDI IGWENDU
3. MISS ONYEKA IGWENDU
4. MRS. NWAKAKU ONWUZULUME (Nee IGWENDU)

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, JUDGMENT, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The parties on both sides of the legal divide are some of the children of the Late Chief E. C. N. Igwendu of Egbengwu Village, Nimo in Anambra State, albeit not from the same mother. The Appellant’s case is that her late mother [Mrs Margaret Igwendu] was the first wife of the Late Chief Igwendu, who also married the mother of 1st and 2nd Respondents [Mrs Dorathy Igwendu] as second wife. She maintained that her own mother married the mother of the 3rd and 4th Respondents in accordance with Nimo native law and custom on Woman to Woman marriage; and that her mother (and not the late Chief Igwendu) is the sole owner of property situate at: (a) No. 11A Ifeacho Street, Isiagu, Amikwo Awka, (b) No. 3 Nwimo Street, Achalla Road, Express, Awka, (c) one-storey house at Nimo, (d) an empty plot of land at Ifite Awka, and (e) two shops at Eke Awka Market -all of which she inherited from her mother.

​The Respondents, on their part, maintained that the Late Chief Igwendu, who married four wives and sired twelve (12) children, was a successful businessman who singlehandedly acquired and developed all of the property being claimed by the Appellant; that the Appellant’s mother not only exploited her position as first wife to manipulate their father during his lifetime, but also confiscated title documents and changed ownership of property to her name after his death and that all the children of the Late E. C. N. Igwendu are entitled to inherit their father’s property along with the Appellant, except the so-called “Anayo Igwendu” who is not his biological child.

The lower court dismissed the claim of the plaintiff (Appellant). Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the lower Court rightly evaluated the evidence before it and reached the right decision in dismissing the claim of the Appellant [Plaintiff]?

Whether the costs of N100,000.00 awarded in favour of the Respondent Defendants against the Plaintiff in the circumstances of this case is not arbitrary?

RATIONES DECIDENDI

ISSUES FOR DETERMINATION – THE PARTY THAT NOMINATES ISSUES FOR DETERMINATION IN AN APPEAL

A careful and insightful consideration of the two sets of issues identified by the parties (as reproduced above) reveals that the Appellant’s issues condescend upon that part of the judgment embodying the dismissal of the main claim only, but not the counter-claim that was partly allowed by the lower Court. Rather, it is the Respondents’ second issue that seeks to engraft the counter-claim into the scheme of the present appeal. It does not seem to me that the Respondents are at liberty so to do.

​Generally, issues for determination in an appeal are nominated by the appellant who is the proponent of the appeal, but not by the respondent whose role is merely to “respond” and drum up support for the judgment entered in his favour which is under attack on appeal, save and except he gives a respondent’s notice of contention or files a substantive cross appeal.

Appeals are thus heard and determined on the basis of issues nominated by the appellant and although a respondent may reformulate issues by giving them a slant suitable for his arguments, he is not at liberty to deviate from the issues raised by the appellant in the absence of a respondent’s notice or cross appeal filed by him. The course open to this Court in the circumstance is to ignore the second issue formulated by the Respondents. See AKINLAGUN v OSHOBOJA [2006] 12 NWLR (PT 993) 60, KOKORO-OWO v LAGOS STATE GOVT [2001] 11 NWLR (PT 723) 237, MAJEKODUNMI v COOPERATIVE BANK LTD [1997] 10 NWLR (PT 524) 198 and AKANNI FADINA & ORS v NURENI OGUNREMI & ORS (2017) LCN/10085(CA). – Per P. O. Affen, JCA

APPEALS – THE ESSENCE OF APPEALS AND THE CONDUCT OF APPELLATE COURTS SITTING ON APPEALS

Now, By Order 7 Rule 2(1) of the Court of Appeal Rules 2021, all appeals shall be by way of rehearing. The appellate procedure is a grievance procedure; an invitation to a superior Court to review the decision of a lower Court and enter a decision the lower Court ought to have reached. There is a presumption of regularity and correctness of decisions of Courts of law under and by virtue of S. 168 Evidence Act 2011 and the appeal Court does not make a practice of substituting its discretion or opinion for that of the lower Court from which an appeal emanates. Although an appellate Court is enjoined to interfere with, and set aside, decisions that are perverse, it is not enough for an appellant to merely assert that the decision of a Court of law (which is also a Court of equity) is perverse. Thus, it is always incumbent on the appellant to demonstrate the error to which the lower Court, in his estimation, was betrayed in the decision appealed against [see SET SUCCESS ENTERPRISES & COMPANY LIMITED v IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL (2021) LPELR-56608(SC) and HANATU v AMADI [2020] 9 NWLR (PT 1728) 115 at 132], or how the decision or findings made by the lower Court are perverse [see KAYILI v YILBUK [2015] 7 NWLR (PT 1457) 26, UDE v STATE (2016) LPELR-40441(SC)]. – Per P. O. Affen, JCA

APPEAL – ESSENCE OF AN APPEAL AND THE DUTY OF AN APPELLANT TO SUBSTANTIATE HIS ASSERTION – WHEN A DECISION IS SAID TO BE PERVERSE

An appeal is certainly not a platform for rehashing or regurgitating submissions made before the lower Court and ruled upon without more; the appellant must substantiate his assertion by showing how the decision appealed against is perverse. See AMADI v ATTORNEY GENERAL OF IMO STATE [2017] 11 NWLR (PT 1575) 92. A decision is said to be perverse where it is based on inadmissible evidence, or it is speculative and not founded on any evidence, or the Court either ignored the obvious or took into account extraneous matter. See IGBIKIS v STATE [2017] 11 NWLR (PT. 1575) 126 at 153 (SC) and WARD v JAMES [1965] 1 LLOYD’S REP. 145, (1966) 1 Q.B. 273. – Per P. O. Affen, JCA

APPELLANT – DUTY OF THE APPELLANT TO DEMONSTRATE HOW A DECISION IS AGAINST THE WEIGHT OF EVIDENCE – DUTY OF TRIAL COURTS IN ADJUDICATION AND CONDUCTS OF APPELLATE COURTS SITTING ON APPEAL

The Appellant’s grouse under Issue One is that the lower Court failed to properly consider and evaluate the evidence placed before it and the judgment is consequently against the weight of evidence. It is however not enough for the Appellant to merely allege that the judgment is against the weight of evidence without demonstrating how this is so. Perception and evaluation of evidence are the province and forte of the trial Judge: that peculiar adjudicator upon whom the heaviest burden of trial lies. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision, and the appeal Court, as a rule, will not interfere with findings of fact made by the trial Court upon proper evaluation. The only exceptions to this rule are where the findings of fact are unsound, perverse and contrary to the case pleaded by the parties or where the trial Court failed to take full advantage of the opportunity of watching and hearing the witnesses testify. See EBBA v OGODO (1984) 4 SC 84 at 102 – 104, ATTA v EZEANAH [2000] 11 NWLR (PT. 678) 363 at 378, MAIGORO v BASHIR [2000] 11 NWLR (PT. 679) 453 at 467, ELEWUJU v ONISAODU [2000] 3 NWLR (PT. 647) 95 at 116 and FALEYE & ORS v DADA & ANOR (2016) LPELR-2470(SC). – Per P. O. Affen, JCA

SIGNATURE – WHETHER A PERSON APPENDING HIS SIGNATURE OR WRITING HIS NAME EQUATES TO A PERSON BEING LITERATE

…binding case law donates the proposition that the mere fact alone that a person is able to sign his signature or write his name does not necessarily mean that he/she is literate [see GB OLLIVANT v LAWAL (1972) 3 SC 124 at 135-136, OTITOJU v GOVERNOR OF ONDO STATE [1994] 4 NWLR (PT. 340) 518 at 529 AND UBA PLC v MUSTAPHA (2003) LPELR-6203(CA) 1 at 32 – 34]… – Per P. O. Affen, JCA

PROOF – WHO BEARS THE BURDEN OF PROOF

Evidence is the basis of justice and the rule of evidence is that he who asserts the positive must prove. See OKAFOR v EZENWA [2003] 47 WRN 1 at 11, VULCAN GASES LIMITED v GESELLSCHAFT [2001] 26 WRN 1 at 59, ABIODUN v ADEHIN (1962) 2 SCNLR 305 and MOROHUNFOLA v KWARATECH [1990] 4 NWLR (PT. 145) 506. The onus probandi necessarily lies on the party who asserts the affirmative and not upon him who denies, since by the nature of things he who denies a fact cannot produce any proof: Incumbit probatio qui dicit, non qui negat. See IMANA v ROBINSON (1974) 6 SC 83, KATE ENTERPRISES LTD v DAEWOO NIG LTD (1985) 2 NWLR (PT 5) 116, ONYENGE & ORS v EBERE 18 NSCQR (PT. II) 789 at 802, AROMOLARAN v KUPOLUYI [1994] 2 NWLR (PT. 325) 221, ARASE v ARASE (1981) 5 SC 33 at 37, ELEMO v OMOLADE (1968) NMLR 259 at 361 and OSAWARU v EZEIRUKA (1978) 6-7 SC 135 at 145. – Per P. O. Affen, JCA

COSTS – MEANING OF COSTS AND THE PRINCIPLES TO BE OBSERVED IN FIXING COSTS

Now, “costs” are expenses incurred in prosecuting or defending a lawsuit. The object of the award of costs is to compensate the successful party for some of the expenses incurred in litigation [see HACO LTD v BROWN (1973) 2 SC 14 and REGD. TRUSTEES OF IFELOJU v KUKU [1991] 5 NWLR (PT 189) 65] but quite unlike the award of damages, there is as to costs no restitutio in integrum. See MBANUGO v NZEFILI (1997) LPELR-5483(CA). Fundamentally, costs follow events and are matters within the discretion of the trial judge. OJIEGBE & ANOR v UBANI & ANOR (1961) 1 ALL NLR 277, HACO LTD v S. M. DAPS BROWN (1973) 4 SC 149, AKINBOBOLA v PLISSON FISKO NIG LTD [1991] 1 NWLR (PT. 167) 270, N. B. C. I. v ALFIJIR (MINING) NIG. LTD [1999] 14 NWLR (PT 638) 179 and NNPC v KLIFCO (NIG) LTD [2011] 10 NWLR (PT 1255) 209. The principles to be observed in fixing costs are set out in Order 50 of the Anambra State (Civil Procedure) Rules, 2019 as follows: “Costs 1(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is be indemnified for the purposes for the expenses to which he has been necessarily put in the proceedings, as well as compensated for his time and effort in coming to Court. Such expenses shall include:

 

(a) the cost of legal representation and assistance of the successful party to the extent that the Judge determines that the amount of such cost is reasonable.

(b) the travel and other expenses of parties and witnesses to the extent that the Judge determines the amount of such expenses is reasonable, and such other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case.

(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order.

(3) When the Judge deems it to be impracticable to determine summarily the amount of any costs which he has adjudged or ordered to be paid, all questions relating thereto shall be referred by the Judge to a Taxing Officer for taxation.” – Per P. O. Affen, JCA

COURTS – CONDUCT OF COURTS IN EXERCISING THEIR DISCRETIONAL POWER TO AWARD COST – MEANING OF JUDICIOUS AND JUDICIAL

The point has already been made that the award of costs is at the discretion of the Court making the award. But as with all instances of judicial discretion, the discretion to award or refuse costs must satisfy the concurrent requirements of what is ‘judicial’ and ‘judicious’ in order to avoid the arbitrariness of an unpredictable personal decision. ‘Judicially’ means the discretion must be exercised within the precincts of law, whilst ‘judiciously’ implies that the exercise of discretion must take into cognisance all the facts and surrounding circumstances of the case at hand and be replete with intellectual candour and tenacity of mind and purpose. By its very character, judicial discretion does not brook any capricious exercise of power according to private fancies and affections. UDOTIM & ORS v IDIONG (2013) LPELR-22132 (CA) 13-14 (per Nweze, JCA as he then was). The point to underscore is that no one case can be an authority for the other in matters of discretion, for if it were otherwise that would put an end to the exercise of discretion. ODUSOTE v ODUSOTE [1971] 1 ALL NLR 219, ICAN v A-G, FEDERATION [2004] 3 NWLR (PT. 859) 186 and BELLO v YAKUBU [2008] 14 NWLR (PT 1106) 104 at 121. – Per P. O. Affen, JCA

COURTS – CONDUCT OF APPEALLATE COURTS TO DISCRETION EXERCISED BY LOWER COURTS

In any event, the appellate Court does not lightly interfere with discretion properly exercised by a trial Court in accordance with established principles merely on the ground that it would have exercised discretion differently. It is only where the exercise of discretion is premised on extraneous matter or the Court fails or neglects to consider something it ought to have taken into consideration that an appellate Court will interfere, which is not the scenario here. See LAUWERS IMPORT-EXPORT JOZEBSON (1988) LPELR 2934(SC), NWABUEZE v NWOSU (1988) 9 SC 68, WAZIRI v GUMEL [2012] 9 NWLR (PT. 1304)184 at 209, CHIEF NICHOLAS BANNA v TELEPOWER NIGERIA LIMITED (2006) 7 SCNJ 182, AKINYEMI v ODU’A INVESTMENT CO LTD [2012] 7 NWLR (PT. 1329) 209 at 242 and NZEKWE v ANAEKWENEGBU (2019) LPELR-49002(SC). – Per P. O. Affen, JCA

COURTS – DUTIES THAT ARE WITHIN THE PROVINCE AND FORTE OF THE TRIAL COURTS

It bears iterating that evaluation of evidence and ascription of probative value are the province and forte of the trial Judge: that peculiar adjudicator upon whom the heaviest burden of trial lies. The appellate Court does not make a practice of substituting its discretion or opinion for that of the lower Court from which an appeal emanates, thus where the record shows that a trial Court assessed the evidence presented before it and accorded probative value thereto by placing the evidence of both parties side by side on the imaginary scale of justice before making findings of fact and reaching a verdict, such findings must be accorded due weight insofar as they are not unreasonable or perverse. See MOHAMMED v THE STATE (2020) LPELR-52451(SC) and TSKJ (NIG) LTD v OTOCHEM (NIG) LTD (2018) 11 NWLR (PT 1630) 330. In the case on appeal, the findings of fact and the eventual verdict of the lower Court have not been shown to be unreasonable or perverse, and there is no basis to interfere. The appellate Court is not a finicky faultfinder raking up non-existent defects in decisions of lower Courts with a view to upturning them. – Per P. O. Affen, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

1. Evidence Act 2011
2. Court of Appeal Rules 2021
3. High Court of Anambra State (Civil Procedure) Rules, 2019

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