UKEJE v UKEJE (2014)(2014) 11 NWLR ( pt. 1418) 384

CASE NAME:

UKEJE v UKEJE (2014)

(2014) 11 NWLR ( pt. 1418) 384

SUPREME COURT OF NIGERIA

224/2004

WALTER SAMUEL NKANU ONNOGHEN, J.S.C. (Presided)

BODE RHODES-VIVOUR, J.S.C. (Read the Leading Judgment)

CLARA BATA OGUNBIYI, J.S.C.

KUMAI BAYANG AKA’AHS, J.S.C.

JOHN INYANG OKORO, J.S.C.

FRIDAY, 11TH APRIL 2014

1ST APPELLANT – Mrs. Lois Chituru Ukeje

( Wife of the deceased)

2nd APPELLANT – Enyinnaya Lazarus ukeje 

(Son of the deceased)

RESPONDENT-  Miss Gladys Ada Ukeje 

(daughter of the deceased) 

FACT OF THE CASE:

On the 27th day of December 1981, Lazarus Ogbonnaya Ukeje a native of Umuahia in Imo State died intestate. He had real property in Lagos State and for most of his life was resident in Lagos State. The 1st appellant got married to the deceased on the13th of December 1956. There are four children of the marriage The respondent is one of the four. After Lazarus Ogbonaya Ukeje died, the 1st and 2nd appellants’ (mother and son) obtained letters of administration for and over the deceased’s estate.

On being aware of this development, the plaintiff/respondent filed an action in court wherein she claimed to be a daughter of the deceased and by virtue of that fact had a right to partake in the sharing of her late father’s estate. Her claims before a Lagos State High Court were for five (5) reliefs. Pleadings were filed and exchanged.

The respondent as plaintiff testified and called her mother as a second witness. Thirteen witnesses gave evidence for the defence.Thirty-four documents were admitted as exhibits. These included the birth certificate of the respondent showing that she is a daughter of the deceased L. O. Ukeje, family photographs of the respondent and her deceased father and a guarantor form the deceased L. O.Ukeje filled for the respondent acknowledging that he was the father of the respondent.

The trial court in its judgment found that the plaintiff/respondent is a daughter of L. O. Ukeje (deceased) and proceeded to grant reliefs 2, 3 and 4.As regards relief 5, the trial court ordered the 1st and 2nd appellants to hand over the administration of the estate to the Administrator-General pending when the deceased children would choose 3 or 4 of them to apply for fresh letters of administration.

The appellants were aggrieved with the judgment of the trial court and appealed to the Court of Appeal which dismissed their appeal.

The appellants again were dissatisfied with the judgment of the Court of Appeal and they appealed to the Supreme Court.

ISSUES  FORMULATED BY THE COURT

1. Whether the respondent proved that she was a biological daughter of L. O. Ukeje (deceased).
2. Was the evidence of DW8 discredited in the High Court?
3. .Did the trial court arrive at its decision after following the proper guidelines for decision making laid down by the Supreme Court. 

ARGUMENT FOR THE APPELLANT 

Issue 1

“Where the plaintiff in an action produces a documented evidence in support of an averment of fact in his pleadings which the defendant has denied, is the defendant, if he seeks to adduce oral or documentary evidence in disproof of the plaintiff’s documentary evidence, bound first to plead that the plaintiff’s documentary evidence is false, fraudulent or forged?

Issue 2

“Was the evidence of DW8 discredited in the High Court?’

Issue 3

“Did the trial court arrive at its decision after following the proper guidelines for decision making laid down by the Supreme Court?”

Issue 4

“Did the Court of Appeal draw the right conclusions in respect of the Birth Certificate exhibit H?”

ARGUMENT FOR THE RESPONDENT 

Issue 1

Whether there were any violations by the two lower courts to make such findings perverse.

Issue 2

Whether the standard of proof required of the appellant in proving fraud and forgery is proof beyond reasonable doubt.

Issue 3

Whether the Court of Appeal was correct to have affirmed the judgment of the lower court when it held that the learned trial Judge followed the procedures laid down by the Supreme Court. 

JUDGMENT  OF THE COURT

1.On Presumption of genuineness of public document –

Under section 114(1) of the Evidence Act (section146 of the Evidence Act, 2011) the court will presume a document to be authentic if the content on the face of the said document were properly executed by the authorized government official. Once the authorized government official appends his signature and stamp on the document and such authentication is not contested by the adverse party . The presumption of regularity will be ascribed to it. 

2.On Validity of birth certificate in proof of birth and parenthood –

A birth certificate is conclusive proof that the person named therein was born on the date stated, and the parents are those spelt out in the document. It does not really matter the person who gave information for the birth certificate to be issued. Whether it was the father or mother of the respondent who gave the information, the fact remained that an authorized person issued the birth certificate. In the instant case, the appellants did not attack the origin of the certificate but that it was not the late Ukeje who gave information for the registration of the birth of the respondent in 1952. Since the appellants were unable to lead evidence to rebut the presumption that exhibit H was genuine, the court was right to hold that the respondent was able to establish that she was a biological daughter of the late Ukeje.

3.On Importance of documentary evidence in evaluation of oral evidence –

.Once documentary evidence supports oral evidence, such oral evidence becomes more credible. The reasoning is premised on the fact and the law that documentary evidence serves as a hanger from which to assess oral testimony. In the instant case, on the issue of whether the respondent was the  daughter of L. O. Ukeje (deceased), family photographs may have helped to resolve the issue, but the birth certificate of the respondent was decisive in settling the issue. It answered the questions when, where the respondent was born and who her parents were. Exhibit J, the guarantor’s form signed by the deceased (L. O. Ukeje) further showed that the deceased was the father of the respondent. Thus, exhibits “H”, “M” and “M1 – 3”, lent more credence to the claim and evidence of the respondent that she was a daughter of L. O. Ukeje(deceased). The trial court and the Court of Appeal were therefore correct in their judgments that L. O.Ukeje (deceased) was the father of the respondent.

4.On Constitutionality of Igbo Customary Law which disentitles female child from partaking in her deceased father’s estate –

No matter the circumstances of the birth of a female child, she is entitled to an inheritance from her late father’s estate. Consequently, the Igbo customary law which disentitles a female child from partaking in her deceased father’s estate is in breach of section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution.

5.On Duty on party who alleges to prove –

It is not enough for a party to make an allegation before a court. He must lead credible evidence to prove said allegation. 

6.On Burden of proof of crime –

The burden of proving crime is subject to the provision of section 141 of the Evidence Act and is on the person who asserts. 

7.On Need to plead particulars of and establish fraud where alleged –

.When fraud is alleged in a suit, it must be pleaded and the particulars thereof given and established in evidence by proof beyond reasonable doubt. In the instant case, the respondent produced exhibits M and M1, photograph and negative respectively, to support the averment in her pleadings that she was the daughter of L. O. Ukeje (deceased). The appellants denied the averment. At the trial, if the appellants had sought to disprove the respondent’s documentary evidence (i.e. exhibits M, M1) which was used to support her averment that she was the daughter of the deceased, the appellants were bound to plead that the respondent ’s documentary evidence was false, fraudulent or forged. The appellants ought to have cross-examined her and led evidence to show beyond reasonable doubt that exhibits M and M1 were forgeries. This the appellants were unable to do. The allegation of forgery/ fraud by the appellants was not pleaded by them but only raised at the final address stage. It was therefore discountenanced.

8.On Standard of proof of criminal allegation –

Proof of criminal allegation must be beyond reasonable doubt. 

9.On Duty on trial court with respect to evaluation of evidence and ascription of probative value thereto –

It is the duty of the trial court which sees and hears witnesses to evaluate the evidence and pronounce on their credibility and ascribe probative value thereto. In other words, the appraisal of oral evidence and ascription of probative value to such evidence are the primary responsibility of a trial court. 

10.On Principles guiding evaluation of oral evidence by trial court –

A trial court is expected to watch the demeanor of a  witness, to see how readily he answers questions: whether he gesticulates; his reaction when confronted with evidence, be it documentary which suggest that his testimony is untrue. It is only after such scrutiny that the Judge can attach weight to the evidence of the witness. 

11.On What finding of fact entails –

The duty of a trial court is to receive all relevant evidence. That is perception. Thereafter, the Judge is to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. In the instant case, the trial court received all evidence put forward by both sides in proof and disproof of the case. The court proceeded to weigh the evidence on an imaginary scale and found the testimony of respondent , supported by documents to be good proof that the respondent was L. O. Ukeje (deceased) daughter. On the other hand, the evidence of the appellants was found conflicting and seriously damaged on demeanor the circumstance, the trial court followed the guidelines outlined in Sanusi v. Ameyogun. 

12.On Presumption of correctness of finding of fact of trial court affirmed by the Court of Appeal –

Where there is an appeal against a finding of fact by the trial court and it is affirmed by the Court of Appeal, the Supreme Court would presume that the trial court’s conclusions are correct. This is  so since the trial Judge was the only Judge who saw and heard the witnesses. When the Court of Appeal affirms the conclusions of the trial court the presumption becomes much stronger. The presumption can only be displaced by the appellant who seeks to upset the judgment on facts. 

13.On Attitude of the Supreme Court to concurrent finding of fact and when it will interfere therewith –

The Supreme Court would be quick to reverse concurrent findings of fact if there was miscarriage of justice or a violation of some principles of law or procedure or the finding is found to be perverse. In the instant case, the finding of fact that the respondent was a daughter of L. O. Ukeje(deceased) was arrived at by the trial court after the respondent supported her claim with flawless documentary evidence, especially her birth certificate. There was no way such a finding could be said to be perverse, or to have violated some principle of law. The concurrent finding of fact that the respondent was a daughter of L. O. Ukeje(deceased) was correct. 

14.On Attitude of the Supreme Court to concurrent finding of fact and when it will interfere therewith –

Unless there are special circumstances shown, the Supreme Court would not disturb the concurrent finding of fact made by the trial court and the Court of Appeal. The circumstances or exceptions to the above general principle include the following:

if such finding of fact is made on inadmissible(a)evidence; or

if such finding of fact cannot be related to(b)any evidence before the court; or

where such finding of fact is on matters not(c)pleaded; or

where, on the whole facts before the trial court and the Court of Appeal, the finding is(d)manifestly perverse.

In the instant case, there was no where any of  the exceptions listed above was alleged, let alone established by the appellants’ in their brief of argument to warrant that the general rule should be overturned. 

15.On Treatment of finding by trial court affirmed by Court of Appeal which is not appealed against –

A finding by a trial court which is affirmed by the Court of Appeal and which is not appealed against remains inviolate. 

16.On Power of appellate court to formulate issues for determination –

The Supreme Court and indeed an appeal court has the power to adopt or formulate issues that in its view would determine the real complaints in an appeal. 

AUTHORITIES CITED 

CASES

A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560

Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt. 184) 132

Cardozo v. Daniels (1986) 2 NWLR (Pt. 20) 1

Chinwendu v. Mbamali (1980) 3-4 SC 31

Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 1

George v. Dominion Flour Mills (1963) 1 SCNLR 117

Igbinosa v. Aiyobagbiegbe (1969) 1 SCNLR 154

Imana v. Robinson (1979) 3 – 4 SC 1

Kim v. State (1992) 4 NWLR (Pt. 233) 17

Kimdey v. Military Governor, Gongola State (1988) 2 NWLR(Pt. 77) 445

Ogbu v. Wokoma (2005) 14 NWLR (Pt. 944) 118

Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 15

Okelola v. Adeleke (2004) 13 NWLR (Pt. 890) 307

Omoregbe v. Lawani (1980) 3-4 SC 117

Onamade v. A.C.B. Ltd. (1997) 1 NWLR (Pt. 488) 

Union Bank Plc v. Astra Builders (W.A.) Ltd. (2010) 5 NWLR(Pt. 1186) 1

STATUTES 

Constitution of the Federal Republic of Nigeria, 1979 (as amended), S. 39(1)(a) & (2)

Constitution of the Federal Republic of Nigeria, 1999, S. 42(1)(a)(a) & (2)

Evidence Act, 2011, S. 146(1)

Evidence Act, Cap. E14, Laws of the Federation of Nigeria,2004, Ss. 114(1) and 138(1) & (2)

APPEAL 

This was an appeal against the judgment of the Court of Appeal which dismissed the appellants’ appeal against the decision of the trial court entered in favour of the respondent. The Supreme Court, in a unanimous decision, dismissed the appeal.