Joseph and Others v Joseph and Another (CA/J/137/2014) [2016] NGCA 4 (28 June 2016)

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting in its appellate jurisdiction in Appeal No: GM/83A/2007 over the Judgment of the Upper Area Court, Billiri delivered on 27-09-2007. The trial Upper Area Court had, in its judgment, distributed the estate of Joseph Polis among his heirs, and its decision was affirmed by the Gombe State High Court. Dissatisfied with the decision of the Gombe State High Court, the Appellants, with the leave of Court granted on 26-07-2013, further appealed to this Court vide a Notice of Appeal containing two Grounds. The Notice of Appeal is dated 23-08-2007 and was filed on 27-08-2013.

A summary of the facts of the case is as follows: Joseph Polis, (deceased), the father of both the Appellants and the Respondents herein by different mothers, died intestate and left behind an estate, wives and children. During his life time, he had children with three different women namely, Abigail, Esther and Ladi, in that order. The marriage to Abigail was customary and was not fully completed, but they had a child together before their separation. He later married Esther in Church and they had four children, two male and two female. Of these children two died, leaving one male and one female. The parents again later went their separate ways. Thereafter, he married Ladi with whom he lived up to the time of his death. They had seven children. After his death, Esther brought an action against the 3rd wife, Ladi, seeking for the division of the estate of their late husband between the two latter wives. In the course of investigation, it was discovered that Joseph Polis had divorced Esther, and she had remarried other persons even before his demise. Based on this fact, her name was struck out from the suit for lacking in locus standi. In her place however, her two children, namely Juliana and Samaila, were brought in. 

On 10-05-2005, Jonah Joseph, the 1st Respondent herein and the son of the first wife, Abigail, also instituted an action against the third wife, Ladi, seeking for his share in his late father’s estate. Following an application brought for consolidation, the two separate suits were later consolidated on 06-06-2006. The earlier Plaintiff, Esther, had listed seven items which, according to her, belonged to their late husband and which should be distributed among his heirs. The items were (1) a house at Polamba, (2) a house at Kashere, (3) two bulls, (4) one cow, (5) one ploughing bull, (6) one small grinding machine and (7) six sheep.

The Defendant on her part, disputed these claims and listed only (1) cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira Only), and (2) one old motor cycle, as constituting the entire estate of the deceased, claiming that the rest of the items listed by the Plaintiffs actually belong to her and her children. Being a minor, Samaila, was subsequently substituted and replaced by Ishaya Polis, a younger brother of late his late father.

During the trial before the Upper Area Court Billiri, the Plaintiffs adduced evidence through four witnesses in proof of the validity of the marriages between the deceased and the other two wives, as well as the fact that the children named in the suit were the legitimate heirs of the deceased. The trial Court later adjourned for the Plaintiffs to call evidence to ascertain the estate left by the deceased, which was to be distributed among his heirs. However, no further evidence was adduced in this regard by the Plaintiffs. The Defendant did not also adduce any evidence in defence of the claim, after several adjournments had been granted and the defendant had absented herself from Court. 

At the close of trial, Counsel addressed the trial Court and it proceeded to deliver Judgment. The learned trial Court listed all the items it had seen as part of the estate of the deceased when it visited the villages of Polamba and Kashere. The Court added this to the various sums of money that were alleged to be in the custody of the Defendant and her children. It put everything together and divided same as the estate of the deceased to his heirs. This included those items which the Defendant had informed the trial Court belonged personally to her and her children. The inspection report is at pages 35-36 of the Record, the evaluation report is at pages 40-42 of the Record and the distribution of the estate is at pages 44-45 of the Record.

Aggrieved, Ladi Joseph, (the Defendant at the trial Upper Area Court Billiri), filed an Appeal against the Judgment to the Gombe State High Court. The original Notice of Appeal is at page 1 of the Record. While the Appeal was pending, Ladi died and the lower Court granted an application to substitute her with the present Appellants and to file and argue additional Grounds of Appeal.

On the 16th May, 2016, when the Appeal was called up for hearing, J.A. Oguche Esq., learned Counsel for the Respondents, argued a preliminary objection challenging the competence of the Appeal. The objection is embedded in the Respondents’ Brief of argument deemed filed on 11-04-2016. The two grounds of the objection were as stated at page 13 of the Brief and the arguments thereon were set out thereafter. He adopted the arguments in support of the objection in urging the Court to uphold the objection and dismiss the Appeal, on the ground that, where there are no competent issues for determination, the Appeal is liable to be dismissed.

In reply, learned Counsel for the Appellants, P.A. Aki, Esq., submits that the Appellants’ response to the preliminary objection is as contained at pages 5 to 6 of the Appellants’ Reply Brief of argument filed on 25-04-2016. He adopted the arguments therein in urging the Court to hold that the preliminary objection has no basis, and to dismiss same as being merely an academic exercise. Thereafter, in respect of the main Appeal, Counsel adopted the Appellants’ Brief of argument filed on 18-06-2015, as well as the Appellants’ Reply Brief of argument, into which was incorporated arguments in response to the Respondents’ Notice. He urged the Court to allow the Appeal, set aside the Judgment of the two lower Courts, and dismiss the Plaintiffs’ claim at the trial Court. In the alternative, he asked the Court to make an order of retrial.

In response, Mr. Oguche adopted the arguments at pages 19 to 22 of the Respondents’ Brief of argument (deemed duly filed on 11-04-2016) in urging the Court to dismiss the Appeal for lacking in merit. In addition, he drew the Court’s attention to the Respondents’ Notice to contend that the Judgment of the lower Court be varied, which was deemed filed on 11-04-2016. He adopted the arguments in respect of this Notice, incorporated at pages 5 to 12 of the Respondents’ Brief of argument, in urging the Court to vary the order of the lower Court from one of dismissal to one of striking out of the Appeal of the Appellants before that Court.    

Learned Counsel for the Appellants distilled two issues for determination from the two grounds of appeal. Learned Counsel for the Respondents agreed with him on this and adopted the same issues in his arguments. The issues, with slight modification as to grammar and syntax are set out as follows:

1.    Whether the Respondents (as Plaintiffs before the trial Upper Area Court Billiri), proved their case in respect of the estate left by the deceased, Joseph Polis, which was subject to distribution to his heirs, to warrant shifting the burden of proving otherwise onto the Appellants. If not, whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed items were not part of the estate of the deceased. (Ground one)
2.    Whether the distribution of all the items the trial Upper Area Court found at Polamba and Kashere villages, together with the monies which it included as part of the estate of the deceased in the custody of the Appellant’s mother, Ladi Joseph, was not a decision against the weight of evidence. (Ground two)  

Before going into the merit of the Appeal, it is expedient to examine the preliminary objection to the grounds of appeal in the Notice of Appeal and the issues distilled therefrom, since it raises a key issue of jurisdiction relating to the competence of the Appeal before this Court.

RULING ON PRELIMINARY OBJECTION:

The Respondents in their Brief of argument raised an objection to the Appeal and challenged its competence on two grounds, to wit: 

(i)    “Ground two of the Grounds of Appeal is incompetent, same not being a ground of appeal cognizable in civil appeals.
(ii)    Issues 1 & 2 of the Appellants are incompetent, as same are complaints against the Judgment of the trial Upper Area Court and also does (sic) not wholly (sic) from Grounds one and two which they are purportedly distilled from.”

Ground 1 of the objection:

In respect of ground one, learned Counsel for the Respondents submits that the Notice of Appeal filed before this Court shows that ground two of the grounds of appeal is the omnibus ground which is couched as follows:

“The whole decision is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence adduce placed before the Court.”

He submits that the omnibus ground in civil appeals is that “the judgment is against the weight of evidence” whilst in criminal appeals the omnibus ground is that “the judgment is unreasonable, unwarranted and cannot be supported by the weight of evidence”. It therefore goes with saying that the omnibus ground of appeal in civil appeals is fundamentally and materially different and distinct from that in criminal appeals. The omnibus ground as couched by the Appellants in their Notice of Appeal is the omnibus ground of appeal permissible only in criminal appeals, while the Appeal before this Court is purely a civil appeal. Thus the question is whether the said omnibus ground of appeal as endorsed on the Notice of Appeal is valid and/or competent in law. He submits that such a ground is not competent because the law is settled that, in appellate practice, an omnibus ground of appeal in a civil appeal which is couched in the manner permissible only for criminal appeals, is automatically vitiated and rendered incompetent in law. He submits that since the Appellants distilled issue (ii) in their Brief of argument from the incompetent ground two, it also automatically becomes vitiated and is rendered incompetent as well. He relies on Ibeto V Aminu (supra) at 450; Nwanwata V Esumei (…); & Ehuwa V Ondo State INEC (2007) All FWLR (Pt. 35) 1415 at 1420-1421. Counsel therefore urged the Court to uphold ground 1 of the Respondents’ objection and strike out ground two of the Grounds of Appeal together with issue 2 distilled therefrom, for being grossly incompetent.

Ground 2 of the objection

Again, learned Counsel for the Respondents submits that issues 1 and 2 formulated by the Appellants in their Brief of argument are incompetent in law for the following two reasons. Firstly, that whereas the Appeal before this Court is an Appeal against the Judgment of the High Court of Justice of Gombe State sitting in its appellate jurisdiction, it is curious that in distilling the issues for determination, the Appellants formulated issues 1 and 2 in a manner to suggest that they are complaining against the decision of the trial Upper Area Court rather than the decision of the lower Court. Since this Appeal is an Appeal against the decision of the lower Court, issues 1 and 2 of the Appellants’ Brief, which are complaints against the decision of the trial Upper Area Court Billiri are to that extent, void and incompetent in law. He relies on Udor V State (2014) 58 NSCQR 824 at 831. While conceding that in the second part of issue 1, the Appellants do complain against the holding of the lower Court, Counsel still submits that the entire issue 1 has been contaminated and rendered incurably bad by the first part, which is a complaint against the decision of the trial Upper Area Court. He submits that it is not the duty of this Court to perform a surgical operation on issue 1 in order to sever or remove the competent part of the issue from the incompetent portion. He relies on Abe V Unilorin (2014) 57 NSCQR 985 at 987-988, wherein the Supreme Court held:
“Once the ground or one or more of its particulars is liable to striking out the remaining particular or particulars as well as the ground itself are rendered otiose because it is not the duty of the Court to extend hands of fellowship to one of the parties by assisting him to carry out a surgical operation of that party’s ground of appeal by excising the defective part from it.”
Secondly, Counsel submits that issue 1 of the Appellants’ Brief distilled from ground one of the Grounds of Appeal, does not flow from and/or arise from the said ground one. He argues that whilst ground one complains against the holdings of the lower Court to the effect that the Appellants failed to call evidence to prove that some of the items listed for distribution were not part of their deceased father’s estate; issue 1 on the other hand questions whether the Respondents proved their case at the trial Court. While conceding that the second part of issue 1 has some semblance of a relationship with ground two of the grounds of appeal, the entire issue has been contaminated and rendered incurably bad by the first part, which does not flow from ground one. The again relies on Abe V Unilorin (supra) at 987-988 to submit that it is not the duty of this Court to conduct a surgical operation on issue 1 in order to sever or remove the competent part of the issue from the incompetent portion.  

Counsel further submits that issue 2 in the Appellants’ Brief is incompetent because it is a complaint against the decision of the trial Upper Area Court Billiri, rather than the decision of the lower Court, which is the subject of the present Appeal. In appellate practice, an omnibus ground of appeal cannot be used by an Appellant to challenge and/or complain against an error of law or specific findings of facts made by the trial Judge. He relies on Statoil Nigeria Limited V Inducon Nigeria Limited (2014) 9 NWLR (Pt. 1411) 43 at 59. Counsel thus submits that both issues 1 and 2 of the Appellants’ Brief are incompetent in law in view of the fact that the twin issues for determination are void and/or incompetent. He urged the Court to also uphold ground two of the Respondents’ objection and to dismiss the Appeal for being bereft of any competent issue for determination.

Learned Counsel for the Appellants in response, readily concedes that ground two of the Grounds of Appeal and issue two formulated therefrom and argued therein are incompetent. His concession is however not for the reason stated by the Appellants, but for the fact that the Appellants did not call any evidence at the trial Upper Area Court. As a result, they cannot rely on a ground of appeal based on the weight of evidence, as there was nothing on the other side of the scale to weigh against the evidence that was called by the Respondents at the trial Court. To this end he conceded that ground two and issue raised therefrom are indeed incompetent.

On the first ground of objection however, Counsel submits that it is misconceived, and that the case of Abe V Unilorin (supra) was cited out of context. He submits instead that issue (i) was properly distilled from ground one of the Grounds of Appeal filed before this Court. He contends that the complaint in ground one directly attacks the decision of the Gombe State High Court from which the Appeal lay to this Court. The complaint was about the lower Court pushing the burden of proof to the Appellants as against the established principles of law. The particulars to the ground presented the undisputed facts as placed before the trial Upper Area Court Billiri, which was the court of first instance. These were the same facts that were presented to the Gombe State High Court sitting on Appeal.

Counsel relies on Section 16 of the Court of Appeal Act, Order 6 Rule 2(1) of the Court of Appeal Rules 2011, and Lagga V Sarhuna (2008) 161 LRCN 133 at 185 to submit that appeals are done by way of rehearing, and so the facts as presented at the lower court are the same facts that come before an appellate Court. He therefore submits that issue (i) argued from ground one of the Grounds of Appeal is not an issue contesting the Judgment of the trial Court, as wrongly perceived by the Respondents. He asks the Court to treat issue (i) as a whole and not in fragments as suggested by the Respondents’ Counsel. 

In this regard, Counsel argues that at page 108 of the Record, the lower Court called in aid the principle of the burden of proof when it held as follows:

“We hold the view also that it is not the business of the Court to scour (sic) for evidence. The law is he who averts (sic) must prove. If Mallama Ladi is asserting that the house at Kashere or Polamba belongs to her the burden is on her to establish title to the property by adducing cogent and convincing evidence before the Court could declare the title in her favour.” 

Counsel submits that the law is well settled that in civil cases, the burden of proof first lies on the party who would fail if no evidence was given, and in this case, it is the Respondents who were Plaintiffs before the trial Court. The Appellants in their Appellants’ Brief have drawn the Court’s attention to how the lower Court wrongly applied this principle of law. He submits that the invitation to this Court to consider the application of the doctrine of the burden of proof as used by the lower Court vis-à-vis the evidence that was placed at the trial Court, and which issue came on appeal to the Gombe State High Court, is not a complaint against the Judgment of the trial Court, as canvassed by the Respondents in their arguments. He contends that this ground of objection is therefore misconceived and should be discountenanced. Counsel urged the Court to discountenance all the arguments on the preliminary issues of law raised in the Respondents’ Brief, apart from the attack on ground two and issue two which deals with the Appellants’ appeal on the weight of evidence. Instead, he urged the Court to uphold the Appeal based on ground one and issue (i) formulated and argued there under. 

Findings:

This Appeal is against the Judgment of the Gombe State High Court sitting in its appellate jurisdiction over the decision of the Upper Area Court, Billiri. The suit had commenced at the Upper Area Court where the Respondents’ mother had sued Ladi Joseph in respect of the distribution of the estate of their late father, Joseph Polis. At the trial Upper Area Court, the Plaintiffs (now Respondents) adduced evidence through four witnesses in proof of their case. The sole Defendant then, Ladi Joseph, did not adduce any evidence in her defence. However, in her statement before the trial Court, she had stated that the two houses and other properties claimed by the Plaintiff belonged to her and her children, and not to the deceased.  At the close of trial, the trial Upper Area Court found in favour of the Plaintiffs and distributed the estate of the deceased as claimed amongst the heirs of the deceased accordingly.

Aggrieved by this decision, the Plaintiff filed an Appeal to the Gombe State High Court wherein she complained only in terms of the omnibus ground (at page 1 of the Record). Shortly thereafter, she died, and was substituted by her children, who were subsequently the Appellants before that Court. They also sought and were granted an application to argue additional grounds of appeal. At the close of hearing of the Appeal before the lower Court, the decision of the Upper Area Court was affirmed and the Appeal was dismissed. The lower Court found inter alia thus at page 108 of the Record:

“We hold the view also that it is not the business of the Court to scour (sic) for evidence. The law is he who averts (sic) must prove. If Mallama Ladi is asserting that the house at Kashere or Polamba belongs to her the burden is on her to establish title to the property by adducing cogent and convincing evidence before the Court could declare the title in her favour.”

 Still aggrieved, the Appellants appealed to this Court on the following two grounds:

“GROUND ONE

The Gombe State High Court presided over by Hon. Justices Ibrahim Mohammed and A.M. Yakubu misdirected itself on the issue of the burden of proof and thereby occasioned a very serious miscarriage of justice when it held that the Appellants failed to call evidence to prove that some of the items listed for distribution like the house at Kashere, bicycle, 4 goats and its 2 kids, three sheep and three bulls were not part of their deceased father’s estate meant for sharing and that when they had opportunity to call evidence they were busy running away from the court and that it is not part of the business of the court to search for evidence.” (Emphasis supplied)
Some of the particulars of this ground relevant to the arguments proffered on the Respondents’ objection are:

i.    The law is that he who assert (sic) must prove and until the Plaintiff discharges the burden of proof on him or her such burden does not shift automatically to the defendant.
ii.    …
iii.    After evidence was led to prove the 1st issue, the Respondents as Plaintiff (sic) at the trial court listed the item (sic) they wanted to be shared among the heirs which according to them were part of their deceased father’s (Joseph Polis) estate.
iv.    Mrs. Ladi Joseph who was the Defendant at that stage and who is the mother to the present Appellants accepted some of the listed items as belonging to the late Joseph Polis but excluded some as belonging to either herself or her children.
v.    …
vi.    The Respondent (sic) through their counsel said they will call evidence to prove these allegations that were denied but failed to call any witness. Therefore the burden cannot be shifted automatically to the Appellants.” (Emphasis supplied)

GROUND TWO

The whole decision is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence placed before the court.”    
In arguing the Appeal before this Court, the Appellants filed a Brief of argument on 18th June, 2015. Therein, two issues were distilled for determination from these two grounds of appeal. Issue one was distilled from ground one, while issue two was distilled from ground two. Issue one is reproduced hereunder as follows:

1.    “Whether the Respondents in this appeal as Plaintiffs at the trial Upper Area Court Billiri proved their case as to what was said was left by the deceased Joseph Polis which was subject to distribution as to have shifted the burden of proving otherwise to the Appellants. If not whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed item (sic) is not part of the deceased’s estate subject to distribution.”

After a calm examination of ground one of the Grounds of Appeal vis-à-vis issue one of the issues for determination reproduced above, I find that the objection raised thereto amounts to nothing but raising a storm in a teacup. Both the ground and the issue are very clear and explicit on the fact that the Appellants’ complaint is against the express finding of the Gombe State High Court that the Appellants (as Defendants before the trial Court) failed to discharge the burden of proof on them to prove their assertion that the property which they claimed belonged to them and not to the estate of their late father, Joseph Polis, actually did belong to them. The Appellants question this finding of the lower Court on the ground that the Respondents herein (as Plaintiffs before the trial Court) had not, on their part, discharged the burden on them as Plaintiffs. I believe nothing could be clearer. While an argument could possibly be made that ground one of the Grounds of Appeal may have been inelegantly couched. However, this does not, without more, make it incompetent, nor the issue distilled therefrom. See Oleksandr V Lonestar Drilling Co. Ltd (2015) LPELR-SC.42/2005; Omisore V Argbesola (2015) LPELR-SC.204/2015; Fabiyi V State (2015) LPELR-SC.259/2009; Ogbonnaya V FBN Plc LPELR-CA/L/719/2013; & Aigbobahi V Aifuwa (2006) LPELR-SC.194/2001.  I therefore find no merit in the Respondents’ objection to ground one and issue one distilled therefrom. It is accordingly overruled.

In respect of ground two of the Grounds of Appeal, which is the omnibus ground of appeal (as reproduced above), it complains that the decision of the Gombe State High Court is against the weight of the evidence. Learned Counsel for the Appellants has since readily conceded to its impropriety on the ground that the Appellants, having not adduced any evidence before the trial Court, there was nothing on the other side of the scale to weigh against the Plaintiffs’ evidence. Consequently, the issue has been overtaken by this concession to its invalidity on this ground. Nevertheless, I am not unmindful of the fact that the issue was challenged, not on this basis, but on the basis that it is incompetent as it is not a proper ground of appeal in a civil appeal; as well as the fact that it is an attack against the Judgment of the trial Upper Area Court instead of being a complaint against the Judgment of the Gombe State High Court. However, I am of the view that it would merely amount to an academic exercise to embark upon a foray into these issues at this stage in view of the fact that the Appellant has readily conceded to the incompetence of the ground of appeal on another point of incompetence. This Court, being without jurisdiction to embark upon an academic exercise, and not inclined to spend precious judicial time on an issue that has since become academic, I decline the temptation to go any further into the ground. See Daniel V INEC (2015) LPELR-SC.757/2013; Nobis-Elendu V INEC (2015) LPELR-SC.160/2014; Odom V PDP (2015) LPELR-SC.395/2013; FRN V Borisade (2015) LPELR-SC.230/2012; Ngere V Okuruket ‘XIV (2015) LPELR-SC.54/2012-SC.335/2012; & Salik V Idris (2014) LPELR-SC.120/2011. Suffice to say that I sustain the objection on ground two of the Grounds of Appeal and issue two distilled therefrom. Thus, ground two is accordingly struck out and issue two formulated therefrom is discountenanced. However, having found no merit in respect of the objection to ground one of the Grounds of Appeal, the objection raised to it and issue one raised therefrom is overruled and dismissed.

JUMMAI HANNATU SANKEY
JUSTICE, COURT OF APPEAL
 
JUDGMENT
Since issue two for determination distilled from Ground two of the Grounds of Appeal, has since been struck out in the Ruling on the preliminary objection, on the ground of incompetence, we are left with only issue one for determination in the Appeal. It states as follows:

Issue one:

Whether the Respondents (as Plaintiffs before the trial Upper Area Court Billiri), proved their case in respect of the estate left by the deceased, Joseph Polis, which was subject to distribution to his heirs, to warrant shifting the burden of proving otherwise onto the Appellants. If not, whether the Gombe State High Court was right to have held that the Appellants failed to call evidence to prove that some of the listed items were not part of the estate of the deceased. (Ground one)

Learned Counsel for the Appellant submits that in civil claims, the onus of proof is on the Plaintiff and the standard of proof is by the preponderance of evidence or proof on the balance of probability based on the evidence led. He relies on Sections 131, 132, 133 & 134 of the Evidence Act, 2011; and Obi V Onyemelukwe (2011) 1 NWLR (Pt. 12228) 400 at 424 D-E; & OMTC Ltd V BV Ltd (2011) 9 NWLR (Pt. 1252) 303 at 316. He contends that two principal issues were placed before the trial Upper Area Court, Billiri for determination. The first issue was the question of who the legitimate heirs of late Joseph Polis were; while the second issue was the extent of the estate left behind by the deceased. While Appellants’ mother admitted some of the claims in respect of the estate of the deceased, to wit: cash in the sum of N710, 000.00 (Seven Hundred and Ten Thousand Naira), and one old motor cycle, she denied the other items claimed. The Respondents had listed other items which the trial had Court called upon the Appellants’ deceased mother, Ladi Joseph, (as the Defendant before the lower Court), to respond to. She informed the trial Court that the items enumerated by the Respondents’ Counsel belonged to her daughters. Counsel therefore submits that the burden of proof lay on the Respondents to prove that they were legitimate heirs to late Joseph Polis, alongside with the Defendant and her children, and to further prove that the deceased left behind the extent of the estate as listed by the Respondents which is subject to inheritance by his heirs. The Respondents called four witnesses who testified in proof of their claim (pages 20-22 & 25-25 of the Record). The trial Court thereafter ruled (at page 27 of the Record) that Juliana, Samaila and Jonah were all children of Joseph Polis and it would investigate further to determine the extent of the deceased’s estate available for distribution to his heirs. 

Counsel submits that the issue of whether Ladi and her children were legitimate heirs to Joseph was never contested. In fact the deceased’s brother, PW2, Ishaya Polis, listed all the seven children Ladi bore for the deceased as also heirs to the estate. Therefore, he agrees that the trial Court rightly found that the 1st issue was proved and that it would continue with its investigation to know how much wealth the deceased left behind for distribution to his heirs. Counsel refers to Sections 131(1) & (2) and 133(1) of the Evidence Act to submit that the burden of proving the listed items in the estate of the late Joseph Polis also rested on the Respondents. He submits that there is, in addition, a presumption that since the Appellants’ mother, Ladi, was the only wife of the deceased that stayed with him up to the point of his death, the items mentioned by the Respondents would include her personal belongings and that of her children. Therefore, that by virtue of Section 131(2) of the Evidence Act, the burden of rebutting this presumption rests on the Respondents. He contends that the Respondents did not call any witness to discharge this burden even though at page 11 of the Record, they had listed three witnesses they intended to call to prove that the items claimed were part of the estate. The only thing before the trial Court in this regard consisted of the arguments and submissions of Counsel for the Respondents as to the sums of money and property left by the deceased. He relies on A.I.E.  V Adebayo (2006) 134 LRCN 455 at 516 to submit that submissions or address of Counsel cannot take the place of legal evidence.

Counsel further submits that, when the matter came on appeal to the Gombe State High Court, the Appellant’s two additional grounds of appeal which dealt with this issue were argued. However, the lower Court in its Judgment placed the burden of proof on the Appellants, in contravention of Section 133(2) of the Evidence Act. He argues that based on this provision, before the burden can shift, evidence must be led by the claimant. However, in instant case without such evidence being led, the Gombe State High Court transferred the burden to the Appellants by its holding at page 108 of the printed Record. Counsel therefore submits that it i