ALHAJI ALIMI OLAJIRE OBISESAN & ORS v. CHIEF NIYI AKINTOLA & ORS
(2014)LCN/7348(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of July, 2014
CA/I/29/2010
RATIO
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE ON IT, UNLESS IT IS PERVERSE
It appears quite clear from the onset that that nearly all the grounds of appeal that gave birth to this issue are each a complaint on the question of proper evaluation of both oral and documentary evidence. Under Nigerian Case Law evaluation of evidence comes in 2 ways; i.e. findings of fact based on the credibility of witnesses and findings based on assessment, review and appraisal of received and admitted evidence. The former function is the exclusive duty of the Court of trial, while in the latter case an appellate Court is in a good position, upon a proper complaint to interfere to re-evaluate whatever adduced and admitted evidence on record and will not hesitate to make its own findings where the findings of the lower court were perverse or unreasonable. Where findings are unreasonable or perverse they could lead to a miscarriage of justice. Findings are perverse or unreasonable if they were made, for example, upon the consideration of extraneous factors such as bias, prejudice or mistaken belief etc. Findings made exclusively on the credibility and demeanor of witnesses remains within the sole competence of trial Courts and appellate Courts must always feel outrightly reluctant or totally unable to venture to interfere with. See BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388, ARE v. APAYE (1990) NWLR (Pt. 132) 298; FATUNDE v. ONWOAMANAM (1990) LPELR-1253 (SC) and ATANDA v. ATANI (1989) 3 NWLR (Pt. 111) 511. The procedure for evaluation of evidence and ascribing of probative value to it had been outlined in the vintage and evergreen case of MOGAJI v. ODOFIN (1978) 4 SC 91 at 94 to 96 and this involves putting the entire evidence of each of the parties on either sides of the imaginary scale of justice. Whichever side that weighs heavier carries the day because it gets the judgment of the Court upon the well known principle of adjudication in civil cases that proof is on balance of probabilities or preponderance of evidence. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
EVIDENCE: CONFLICT OF TRADITIONAL EVIDENCE; HOW TO TEST CONFLICTING TRADITIONAL EVIDENCE
The law has remained settled that where there is conflict of traditional evidence, the best way to test it is by seeing which of the 2 competing versions of historical events was most probable. See OLARENWAJU v. GOV. OF OYO STATE (1994) 11/12 SCNJ 92. It is however, not the law that once there are conflicts in the evidence of traditional history between rival parties, the trial Court must declare them inconclusive and thereupon proceed to consider recent acts. It would therefore seem that the principle in the famous and vintage case of KOJO v. BONSIE and other cases decided upon its enunciated principles can only be brought into play when the trial judge first discharged his duty to find which of the 2 competing versions was more probable by testing it against other evidence in the case. See DIBIAMAKA v. OSAKWE (1989) 3 NWLR (Pt. 107) 101 at 112. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
EVIDENCE: BURDEN OF PROOF; BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE TO LAND
All these must be considered without it being borne in mind that in a claim for declaration of title to a parcel of land, the onus is on the claimant to prove that he is entitled to the declaration which he had sought. He has to succeed on the strength of his own case and not on the weakness of the defence. See KODILINYE v. ODU 2 WACA 135 and ARE v. IPAYE (supra). per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI ALIMI OLAJIRE OBISESAN
(Head of Aperin Obisesan Family)
2. BAYO DAIRO
(Secretary to Aperin Obisesan Family)
3. KEHINDE ADEKUNLE ESQ.
(For themselves and on behalf of Aperin Obisesan Family) Appellant(s)
AND
1. CHIEF NIYI AKINTOLA
(For himself and on behalf of Oyetola Family)
2. OYETUNJI LAWAL OJEWANDE
3. BALELAYO LAWAL OJEWANDE
(For themselves and on behalf of Ojewande family) Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Oyo State High Court in suit No. 1/986/2000 delivered by Abimbola, J. on 3rd February, 2009.
The within named Appellants were the claimants at the Court below.
In a representative action on behalf of themselves and other members of Aperin Obisesan Family they sought for the following reliefs against the 2 sets of Respondents herein, as Defendants. The reliefs were, according to paragraph 73 of the amended statement of claim and survey plan dated 14/01/2003 but filed on 21-01-2003, thus:-
“(i) A declaration of title to a Customary Right of Occupancy over all that large parcel of farmland situate on Araromi-Aperin road in the Osun/Erinpa area of OnaAra Local Government area in the non-urban area Ibadan as shown verged Red on survey plan No. LAY/0003/2000 attached and filed with the statement of claim.
(ii) A declaration that the 1st defendant representing Oyetola family is according to the Ibadan customary law a tenant of the plaintiffs on the portion verged purple on plan LAY/F/D005/94 including the building plot hatched black and marked “Akintola Oyetola” on plan No. LAY/D/D00a5/94 showing Fawande Aperin village.
(iii) A declaration that the 2nd-5th defendants representing Ojewande family are tenants of the plaintiffs according to Ibadan Customary Law on the five small piece of farmland verged, yellow and marked “A”, ‘B’ ‘C’, ‘D’ and ‘E’ on survey plan No. LAY/D003/2000 inclusive of the plot and building at Fawande Aperin marked Yellow on plan No. LAY/D/D005/94 all shown on survey plan No. LAY/A/D005/94, LAY/B/D005/94, LAY/C/D005/94, LAY/D/D005/94 and LAY/E/D005/94 and thereon verged RED.
(iv) An order of forfeiture of the defendants Customary Tenancies over all the pieces of parcels of farmland including the building or homestead or any structure whatsoever at Fawande Aperin village.
(v) An order granting possession of the pieces or parcels of farmland in dispute including the plots over which the defendants have erected structures at Fawande Aperin Village to the plaintiff.
(vi) The plaintiff claim arrears of Ishakole as follows:
(a) The sum of N4.00 only per annum against the 1st defendant being arrears of Ishakole from January, 1985 up to the date of judgment and
(b) The sum of N4.00 only per annum against the 2nd-5th defendants being arrears of Ishakole from January, 1985 up to the date of judgment and
(vii) An order of perpetual injunction restraining all the defendants, their servants, agents, privies or any person or group of persons claiming through or under them from further entering into any of the pieces or parcels of farmland and or building plots and from entering or parading themselves for any purpose whatsoever at Fawande Aperin village.”
The Respondents denied the claim and challenged all the material averments in the claim of the Appellants. Further to the denial of the claim, they also counter claimed as follows:-
“(1) Declaration that Oyetola family is entitled to that Customary Right of Occupancy to all that parcels of land in and around Aba-Nla village now known and called Fawande village and its environments at Ona-Ara Local Government namely:- (1) Fawande village (2) Depo village (3) Alabi village (4) Adetona village (5) Akinran village (6) Ituko village (7) Ibijunwon village (8) Larinde (9) Erinwo/Ologo (10) Lapampa (11) Larinde (12) Modarinkan (13) Kode (14) Osun Ajani (15) Ogundiwin as shown on plan No. PSE OY/173/2002/06.
(2) N25,000.00 general damages for entering into the plaintiffs (1st defendant) family land and placing AGA on it thereby preventing the plaintiff (i.e. 1st defendant) peaceful enjoyment of the said farm.
(3) Perpetual Injunction restraining the defendant (i.e. plaintiffs) in his counter claim, their servants, agents, privies or any person claiming, disturbing, interfering with the plaintiff (Defendant) possession of the said land and the peaceful enjoyment of the said land in and around Aba-Nla village now known and called Fawande village namely (1) Fawande village (2) Depo village (3) Alabi village (4) Adetona village (5) Akinran village (6) Ituko village (7) Ibijunwon village (8) Larinde village (9) Erinwo/Ologo village (10) Lapanipa viilage (11) Modarinkan village (12) Kode village (13) Osun Ajani village (14) Ogandiwin village as shown on plan No. PSE OY/173/2002/06.”
Issues were duly joined on the claims of all the parties and the matter went to trial.
At the trial, 9 witnesses testified and rendered oral evidence in support of the claim of the Appellants. A number of documents, including views of learned authors of books on History, were also tendered and admitted in evidence. To defend against the claim and prosecute the counter claim, the Respondents relied on the oral evidence of DW1 to DW9 and a number of copious documents as Exhibits. At the end of the evidence of each set of witnesses, the parties closed their cases. Respective learned counsel opted to file and exchange written addresses and same were duly filed and exchanged. They were accordingly adopted and the matter adjourned for judgment.
In a well considered judgment, the learned trial judge decided thus:-
“By the totality of my reasoning, it is the judgment of this court that having regard to the evidence before me. I am of the view that all the reliefs claimed by the plaintiffs be refused and the plaintiffs claim be and is hereby dismissed. On the counter claim of the 1st defendant having regard to the evidence before me and the position of the law on land, it is to be and it hereby declared that the 1st defendant family Oyetola family as holders of right of occupancy are entitled to customary right of occupancy of that portion or parcel of land verged RED on Exhibit, and verged green on Exhibit C and E i.e. plaintiffs plan.”
(See lines 34 to 6 at page 352-353 of record of appeal).
The Appellants were dissatisfied with this judgment and appealed to this court. The notice of appeal was filed on 8th April, 2009 and it was predicated on 10 grounds of appeal. With the leave of Court granted on… the notice of appeal was amended to incorporate additional grounds.
A clean copy of the amended notice of appeal containing 28 grounds was duly filed on…..
To argue the appeal, learned counsel filed what he chose to designate “Appellants’ Consequential Amended Brief of Argument” it is dated and filed on 21st May, 2013. Also, on behalf of the Respondents learned counsel filed an amended brief of argument. It is dated 4th June, 2013 but filed on 7th June, 2013. Because the Respondents’ amended brief incorporated arguments on their notice of preliminary objection filed on 10/5/12, learned counsel to the Appellants filed what he designated “Appellants’ consequential reply brief of argument”. It was filed on 26/8/13 and deemed properly filed on 30/4/14.
At the hearing of the appeal each learned counsel identified, adopted and relied on their briefs. Learned Counsel Mr. Niyi Akintola, appearing for himself personally as the 1st Respondent and for the remaining respondents drew the attention of the Court to the notice of preliminary objection he filed. He referred to it and its various annexures. And while also pointing out pages 2 to 5 of his amended brief of argument and after adopting and seeking to rely on same, learned counsel urged on the Court to uphold all the arguments and submissions canvassed in that behalf and strike out the amended notice of appeal pursuant to Order 6 r. 6 of the Court of Appeal Rules, 2011. Against this scenario, learned counsel to the Appellants referred to pages 1 to 4 of the reply brief and adopted and relied on same in urging the Court to dismiss the notice of preliminary objection for lacking in merit.
For the determination of this appeal, learned counsel to the Appellants, Alhaji Lasun Sanusi SAN formulated and argued 5 issues, each of which he related to particular grounds of appeal. These issues are:-
(1) Whether the learned trial Judge did not err in failing to give effect to judgment of the Supreme Court in respect of the land in dispute, which failure engendered miscarriage of justice. The issue relates to Ground 1, 2 and 8 of the grounds of appeal.
(2) Whether the learned trial Judge did not misdirect himself and arrived at wrong conclusion when he held that Oyetola is not customary tenant of Obisesan family despite confirmations to that effect by members of Oyetola family through various documents. This issue relates to grounds 3, 4, 11, 12, 16, 17, 18, 19, 21 and 22 of the grounds of appeal.
(3) Whether the learned trial judge did not err in law when he predicated his judgment on the evidence and proceedings before the Olubadan in Council when the witnesses before the Olubadan never testified before him and the parties and subject matter of proceedings before Olubadan are quite different from those before the trial court. Grounds 9 and 20.
(4) Whether the learned trial judge was right in holding that plaintiffs are not entitled to relief 2 of their claims on the ground that the area verged purple in Exhibit DV is different from the plaintiffs’ pleadings and evidence when the finding was arrived at as a result of the misconstruction of various plans by the learned trial judge. This issue is covered by ground 27 of the grounds of appeal.
(5) Whether on the totality of the evidence before the learned trial judge and contradictions in the case of the Defendants the trial judge is justified in his conclusion that the case of the Defendants is more satisfactory and convincing than that of the Plaintiffs/Appellants. This issue covers grounds 5, 6, 7, 10, 13, 14, 15, 21, 23, 24, 25, 26 and 28 of the grounds of appeal.”
On behalf of the Respondents, learned counsel Mr. Akintola also formulated 5 issues for the determination of this appeal. They are:-
1. Whether the learned trial Judge made use of Exh. ‘A’ i.e. 1906 Judgment between Sodun Olode family and Obisesan family and the Christians in his judgment, and if he did, did the said Judgment Exh. ‘A’ cover the land and in dispute in the case leading to this appeal? In other words, has it got any practical effect on the judgment of the lower Court? (Distilled from grounds 1, 2 & 7).
2. Was the traditional history of the plaintiffs/appellants before the trial Court cogent, reliable, credible, reasonable and freed of contradictions not to warrant, the application of the principle of recent acts of ownership within living memory as highlighted in the case of KOJO v. BONZIE 1962 Pg. 1223 save for the sake of justice? (Distilled from grounds 2(a) 4, 5, 11, 15, 16-24.
3. Whether the learned trial judge was right in making use of the evidence of the plaintiffs/appellants’ previous Mogaji in the arbitration proceedings EXH B8 before Olubadan in Council in 1977 under Section 33(1) (c) and Sec 34(1) of the Evidence Act. (Distilled from ground 8).
4. Whether the plaintiffs/appellants, having admitted that the defendants/respondents are their customary tenants, had rebutted by strict proof, the presumption of ownership in favour of the defendants/respondents by operation of law under Sec 146 of the Evidence Act. (Distilled from grounds 6, 14, 20, 21)
5. Whether the learned trial Judge was not right in given judgment to the defendants/respondents in respect of the 1st defendant counter-claim after proper evaluation and assessment of the evidence of both parties and their witnesses and also the historical books on the strength of their cogent, reliable, credible and satisfactory traditional history and authentic Exhibits tendered and especially on the evidence of recent acts of ownership within living memory, (Distilled from ground 9, 22, 27, 28, 25).
Before going into the issues for the determination of this appeal, let me consider and decide the notice of preliminary objection filed and argued on behalf of the Respondents. It was filed on 10th May, 2012 and sought to challenge the competence of this appeal and urged that it be struck out for want of jurisdiction on the part of this Court to entertain. It is predicated on the following 8 grounds. They are:-
1. Notice of Appeal dated 7th April 2009 was duly filed and stamped on 8th April 2009 – pages 354-359.
2. That I hereby exhibit the said Notice of Appeal as EXH A.
3. That conditions of appeal were given by the Registrar Appeal Section of High Court Ibadan Oyo State on 20th day of April 2009 – pages 360 of the Record.
4. The conditions were:
a. To deposit for Stationeries for the compilation of the Record of Appeal
b. Appellants shall enter into bond with one surety in like sum.
5. That the Conditions of Appeal are hereby exhibited as EXH B.
6. That both Conditions of Appeal were taken to be perfected with 14 days from 20th April 2009, – page 360 of this Record – P Exh. B.
7. That the Appellants did not file their BOND dated 4th day of April, 2009 at all but only dumped it with the Registrar Appeal Section as shown in EXH. C Pages 361-362 of the record, there was no payment of filing fees and there was no stamping with receipt number on it as shown in EXH. C1 making it invalid and incompetent in accordance with ORDER 54 RULE 2 SIXTH SCHEDULE RULES 3 AND 5 1988 HIGH COURT CIVIL PROCEDURE RULES – PG A338 OYO STATE.
8. That the Appellants had failed to fulfill, comply or perfect the Conditions of Appeal as stipulated in EXH. B, i.e. within 14 days and it is a condition precedent to the hearing of the appeal before this Honourable Court hence this Honourable Court – has no jurisdiction to entertain the Appeal. The undated Registrar’s Certificate regarding perfection of the conditions of appeal is not true.
While this notice of objection was pending the Appellants brought an application on 21/8/2012 pursuant to O. 7 r. 10(1) of the Court of Appeal Rules, 2011, and under the inherent jurisdiction of this Court. It seeks for the following 4 main reliefs thus:-
(i) Extending the time within which Appellants/Applicants may file their Bond of Appeal shown on pages 361-362 of the Record of Appeal at the Registry of the Oyo State High Court, Ibadan.
(ii) Deeming the Appellants/Applicants’ Bond of Appeal filed at the Registry of Oyo State High Court on 25th, May, 2012 as having been properly filed, the necessary filing fees having been paid.
(iii) Granting leave to compile and transmit the Appellants’ Bond of Appeal filed at the registry of Oyo State High Court on 25th May, 2012 via supplementary record for purpose of this Appeal.
(iv) Deeming the filed bond of appeal transmitted to this Honourable Court via supplementary record by the Registrar of the Oyo State High Court as having been properly compiled and transmitted.
The grounds for this application are:-
“(i) The application is to regularize irregularities (if any) in the compilation of the Record of Appeal vis-Ã -vis the bond of appeal.
(ii) The Appellant’s Record of Appeal was compiled by the Registrar of the Lower Court based on the Court of Appeal circular dated 16th October, 2007 which dispensed with filing of Bond of Appeal.
(iii) In compliance with paragraph 2 of the said Court of Appeal circular dated 16th October, 2007 the Registrar of the lower court compiled Appellants’ Record of Appeal without the filing of bond of Appeal which had been prepared and submitted to the Lower Court Registrar.
(iv) The Registrar of the Lower Court issued certificate of compliance to Appellants having fulfilled the conditions of appeal given to Appellants by supplying stationeries to be used for the record.
(v) The Appellants out of abundance of caution decided to file fresh copy of the Bond of Appeal out of time for which leave of this Honourable Court is being sought to regularize.
(vi) The leave of this Honorable Court is also being sought to compile and transmit the Appellants’ Bond of Appeal as supplementary Record and to deem as properly done so as to put the Appellants’ Bond of Appeal properly before this Honourable Court.”
It is supported by a 17 paragraph affidavit deposed to by the 1st Appellant/Applicant in his capacity as the head of the Aperin Obisesan family. It has 2 documents attached to it as Exhibits.
The Respondent filed a 29 paragraph counter-affidavit to oppose this application seeking to regularize Bond of Appeal. It was deposed to by the 1st Respondents. It has Exhibits A to C as annexures.
In order to expedite the hearing of this appeal we decided to take this application along with the appeal both for convenience and expedience.
At the hearing Alhaji Sanusi SAN read out and introduced the reliefs the grounds therefore as well as the affidavit in support. He sought to rely on each of the paragraphs of the supporting affidavit. He urged on the Court to disregard all the paragraphs of the counter-affidavit and to exercise its discretion in favour of this application. On his part, learned counsel Mr. Akintola, for the Respondents urged on the court to refuse this application.
I have carefully read each of the reliefs on this motion paper in the con of the entire and full circumstances of this appeal. In my view, it is very important to consider that the Appellants have a constitutionally guaranteed right to, upon being dissatisfied with the final judgment of the lower Court, appeal against same. A valid notice of appeal was duly filed to achieve the enjoyment of this right. Sequel to that, a proper record of appeal was fully compiled and transmitted to this Court. At that stage the appeal prima facie is said to have been entered and the lower Court would cease to have any more jurisdiction over anything in the case of the parties. Added to that briefs of argument have been duly filed and exchanged by the parties in the appeal. It is safe to, at that stage say that all that an Appellant needed to do to have his constitutionally guaranteed right to appeal to be entertained had seemingly been achieved and fulfilled. It was at this stage that the Respondents now want that process and chain of events to be aborted or truncated and the Appellants being sent back to the proverbial drawing board. According to the Respondents the failure to file the bond of appeal should lead to the notice of appeal being struck out. I believe that would merely amount to the Appellants being told to go back and start all over again because the striking out of the notice of appeal in the circumstance cannot operate as a permanent and irreversible disability to re-ignite the appeal process afresh.
The facts and circumstances in this application are not dissimilar with what happened in this Division of this Court in the case of PROF. OLATUNBOSUN v. TEXACO NIG. Plc and ANOR (2012) 5 SC (Pt. 1) 88 where the Supreme Court considered a number of its earlier decisions on the role of rules of Court, principles governing extension of time to take a procedural step and exercise of discretion. The Supreme Court set aside the orders of this Court refusing a similar application as the instant one. Fully guided by this decision, I do not hesitate to decide in favour of this application. I hereby discountenance all the objections to this application and grant it as prayed. Having granted this application as I did, this appeal is deemed as properly brought and steps so far taken by the Appellants are deemed to have been so taken as to have fully compiled with all the rules of this Court in that behalf. I therefore now hold that the notice of preliminary objection fails and is dismissed. I proceed to take this appeal on its merit.
Before I go into the issues for the determination of this appeal let me underscore and highlight some of the factual assertions of the parties which led to this action. The Appellants are descendants of one Ogungbola Obisesan who was nick-named ‘Aperin’ because of his strength and capacity to confront and kill elephants. He was a farmer, hunter and great warrior. He left his homesteed and in the course of his journey he encountered one Ogunmola. He was a person of similar, character trait and disposition with Obisesan. He lived with Ogunmola for some time and later left him and continued his journey. While he was with Ogunmola, Obisesan was granted land for farming.
According to the Appellants, Aperin Obisesan decided to move on because of his desire to wage war and conquer lands and peoples. It was the era of inter-ethnic and tribal wars. Ibadan land was being attacked by its neighbours, the Ifes, Ijebus and Egbas etc. The attacks were said to be so incessant that Aperin Obisesan, among other warriors were specially commissioned by the rulers of Ibadan to wage war to protect the land from its neighbouring enemies. This special commission prompted Obisesan to set up a base at Oluyoro. In the course of his war exploits he conquered many settlements and virgin lands. He had his army of assistants and admirers. He kept on settling them on the conquered lands and establishing settlements. On some of these places the grantees became his customary tenants with obligations to pay traditional annual rents – Ishakole, and generally to be bound by the usual terms of a customary tenancy.
One of the supporters of Obisesan was said to be Fawande, a very hardworking farmer, blacksmith and herbalist well known for his traditional healing power. He was later granted permission to establish Fawande village by Obisesan. In the course of all these, Aperin Obisesan maintained his conquered virgin lands and settlements and continued to receive Ishakole from his numerous customary tenants. He once also had a land dispute with the family of Sodun Olode which led to a Court case and a judgment (now Exh. A). it was around 1897 to 1906. Obisesan died in 1901 and was substituted in the land dispute action by one of his sons Akinoso. And also when Sodun died during the pendency of the case, his son Bakare was substituted for him. During his lifetime Aperin Obisesan was well recognized by the Ibadan traditional council. He was given the traditional title of Agbaakin of Ibadan land. Upon his demise in 1901, he was succeeded by his son Akinoso, who also later got installed as Agbaakin II. He continued to hold and administer all the lands and settlements of Aperin Obisesan as family property. According to the Appellants, it was at this stage that a Christian leader Revd. Okoga, brought and introduced one Oyetola to Agbaakin Akinoso to be favoured with a grant of land. Akinoso was immediately not disposed to oblige as requested by Revd. Okoga. Because of this reluctance and disinclination of Akinoso, Revd. Okoga needed to persist and eventually succeeded to convince Akinoso to oblige the request and later granted land to Oyetola who from then on continued as the customary tenant of Aperin Obisesan family and had been obeying all the terms of the tenancy, including the payment of Ishakole. According to the Appellants this continued until around 1978 when the within named 1st Respondent, a grandson of Oyetola, as head of the family and a lawyer allegedly stopped paying Ishakole on his understanding that the Land Use Act 1978 had by implication abolished all those customary tenancies when it vested all lands in the territory of a state on the Governor of that State. This along with other events led to the action that culminated in this appeal. The land in dispute is a parcel of farmland lying and situate on Araromi-Aperin Road in the Osun/Eripa Area of Ona-Ara Local Government Area covered by survey plan No. LAY/D.003/2000 (Exh. E.)
The Respondents denied all the material assertions of facts in the narration of historical events. According to the Respondents, it was the ancestor of the 1st Respondent who founded and established Aba-Nla Oyetola. The famous Fawande the blacksmith, farmer and herbalist was granted land by Oyetola and hosted not too far away from Aba-Nla Oyetola.
After the death of Oyetola, Fawande was lured to the heart of Aba-Nla Oyetola to rescue the family and its customary tenants from incessant attacks by thieves who came to steal their food stuff, dried meats and other belongings. The Respondents denied ever being customary tenants of Aperin Obisesan family. It is also part of the case of the Respondents that Oyetola granted 4 different parcel of land to Ojewande, the ancestor of the 2nd and 3rd Respondents. Ojewande also granted land to other persons as his tenants and received Ishakole from them. Upon his demise his descendants continued to receive rents from those tenants. Aba-Nla Oyetola transformed to Oyetola village and later Fawande village.
Against the foregoing scenario, the Respondents, as defendants/Counter Claimants at the Court below sought declaration of title to customary right of occupancy to all parcels of land in and around Aba-Nla Village now known and called Fawande Village and its environs at Ona Ara Local Government Area as shown in survey plan No. PSE/OY/173/2002/06. (Exh. W).
I have carefully read and considered all the issues formulated for the determination of this appeal by the parties. I have also reviewed the amended notice of appeal filed on 12/10/10. There is no difficulty in seeing that so many grounds of appeal have been compressed into an issue. In some cases 10 or 13 grounds have been employed to formulate an issue. Without doubt therefore, there is a clear case of proliferation of grounds of appeal. I wish to observe that this need not be so. Be that as it may, I wish to consider and determine this appeal based upon the issues formulated on behalf of the Appellants. I will begin in this order; 1st issue, 5th issue, 2nd issue, 3rd issue and finally the 4th issue.
In arguing the 1st issue learned counsel Alhaji Sanusi SAN, after identifying grounds 1, 2 and 8 of the grounds of appeal as the grounds that gave birth to the issue, the learned SAN explained that Exh. A is a document containing a judgment in respect of a land in dispute at Eripa-Osun Rivers. It was a judgment of the Supreme Court of Nigeria between 1897-1906. He also explained that the composite plan of the Appellants was admitted in evidence as Exh. E herein while that of the Respondents is Exh. W. Against this explanation, learned counsel Alhaji Sanusi SAN referred to the evidence of PW4 and DW1 to observe and point out that the land in Exhibit A has a direct relationship with the land in Exh. W. Because of this, relationship, learned SAN, Alhaji Sanusi wondered if it was possible for any Court to adjudicate on the same land after its ownership had been settled by the Supreme Court in the judgment in Exh. A.
While referring to the judgment of the lower Court, more particularly the findings of the learned trial judge at pages 336-337 of the record of appeal to the effect that Exh. A is irrelevant in the circumstances of this action, learned counsel pointed out that the learned judge of the lower Court did not give any reasons for this very crucial remark or finding. According to the learned SAN this failure to give effect to the judgment in Exh. A occasioned a miscarriage of justice on the Appellants. He then maintained that to refuse to properly consider and give weight to the judgment of the Supreme Court was an error that affected the rights of the Appellants to have all the evidence they adduced before the Court being given a proper consideration and evaluation. He referred to the case of ADEYEMO v. AROKOPO (1988) 2 NWLR (Pt. 79) 703 at 717 B-C where the Supreme Court held that the Court of trial must consider all the evidence adduced before it and carefully make findings on them before coming to its judgment. According to the Supreme Court this duty involves utilization of the advantage of seeing the witnesses testified and forming impressions about their credibility. He referred to other decided cases and submitted that if the lower Court had not refused to give consideration and effect to Exh. A it would not have had any difficulty in giving judgment to the Appellants, as owners of the land in dispute and that alone would have been sufficient in proving the Appellants’ title. He urged this Court to so hold and resolve this issue in favour of the Appellants.
In his response to this issue under his issue one, learned counsel Mr. Akintola for the Respondents went straight away to suggest that it was a misconception and also totally erroneous for the Appellants to maintain that the lower Court did not consider Exh. A. According to Mr. Akintola, of counsel, and while referring to several pages of the record of appeal, the learned trial judge made copious references to Exh. A in the summary and evaluation of the evidence of the parties, before he made his crucial finding on Exh. A that it was irrelevant. While supporting this view of the lower Court, Mr. Akintola, of counsel pointed out that the boundaries of the land in that case do not extend to those of the land in dispute in this case. Learned counsel added further that because of other findings of the lower Court as to who founded Areago Oyetola family land he then submitted that Exh. A. has no practical effect on the land in dispute in this case other than being a boundary to it. He urged on the Court to resolve this issue against the Appellant.
In his reply at page 11 of the reply brief, learned SAN, Alhaji Sanusi after describing the response of Respondents on this issue as a gross misapprehension or confusion of the facts, maintained that there was no finding of the lower Court describing Exh. A as affecting the boundary to the land in dispute in this appeal. Against this learned senior counsel Alhaji Sanusi argued and submitted that the contentions of the Respondents are untenable because counsel are not permitted to give evidence or supplement the evidence on record under any guise whatsoever. He referred to the case of YOYE v. OLUBODE (1974) 10 SC 209 amongst other decided cases and urged on the Court to resolve this issue against the Respondents.
In resolving this issue I wish to start by referring to paragraphs 19, 20, 21 and 22 of the statement of claim of the Appellants. Issues were joined by the respondents on these averments in paragraphs 10 and 15 of the statement of defence and counterclaim. Against this averments, PW1 gave oral evidence to support the case of the Appellants. He was the witness who discovered Exh. A. amongst the belongings of his deceased father. PW1 is a descendant of Sodun Olode. He is the current Mogaji of the family. Exh. A, was tendered and admitted in evidence through him, without any objection. The Sodun Olode family are boundary men to the family of the Appellants. Since this, document was seemingly sufficiently pleaded and tendered in evidence without objection, the lower Court was bound to consider it, if circumstances make it necessary and must also make some findings on it.
In his finding, at pages 336 to 337, as rightly pointed out by Alhaji Sanusi, SAN, the learned trial judge properly identified Exh. A as a judgment between Aperin and Sodun Olode. With respect to other evidence before him which he described as overwhelming, the learned judge held that the judgment in Exh. A was irrelevant. Seemingly this overwhelming evidence in the mind of the learned judge was and included his assessment and evaluation of the oral testimonies of the 3rd plaintiff, as PW9 as well as Exhibit B. most probably, it was against these evidence that the learned judge satisfied himself that Fawande was founded by Oyetola and which also led to his conclusion that Exhibit A is irrelevant in the circumstances of this appeal.
Now apart from the fact that none of the present Respondents or any of their ancestors was a party to the action leading to the judgment in Exhibit A; there was also no pleadings or evidence in support to show that any of the Respondents or their ancestors was privy to any of the parties in that judgment. With respect to the pleadings and evidence on record, the Appellants claim that when the action leading to Exhibit A was commenced and finished Oyetola, the ancestor of the 1st Respondent, and original landlord of the Ojewande family, was not known to Aperin Obisesan. It was Akinoso, Agbaakin II, who first met Oyetola, through Revd. Olubi. There is least likelihood that the Respondents know anything about Exhibit A, because their case remains that their land shares some boarders with the Sodun Olode family. They cannot therefore be bound by the judgment in Exhibit A. and if they were not bound by it, it cannot be used to determine any of their rights or obligations as it has now turned out to be necessary in this appeal. Therefore, with all due respect to the learned SAN Alhaji Sanusi, there does not appear to be any basis or foundation to successfully challenge the finding of the lower court that Exhibit A is irrelevant to the determination of this matter. Even if the learned trial judge has not given any reasons why he declared Exhibit A as irrelevant and refused to bring it for full appraisal in this matter, it would not have occasioned any miscarriage of justice on the Appellant. The conclusion, in the circumstance, that it was irrelevant is most irresistible. I so hold and decide this issue against the Appellants.
Issue 5 is the “mother of all issues”. It was distilled out of 14 diverse grounds of appeal. In arguing this issue, learned counsel Alhaji Sanusi SAN, began by underscoring the claim of the Appellants as can be gleaned from paragraph 73, as consisting of declarations, order for forfeiture arrears of Ishakole and injunction of a perpetual nature to restrain trespass. He also underscored the defence and counter claim of the 1st Respondents to also involve similar reliefs. Against this background he proceeded to highlight some of the key aspects in the oral evidence of PW1 to PW8 and pointed out that their evidence went in one direction that Obisesan owned the land in dispute. He then specifically emphasized the evidence of 2nd Appellant as PW9 extolling the strong character of Obisesan and his war exploits, bravery and conquests of virgin forests, villages, farms and other settlements.
Against this foundation, learned counsel referred to the decision of this Court in OBURU v. IRA (2002) 10 NWLR (Pt. 775) 297 at 308 B – C where Acholonu, JCA (as he then was) recognized conquest as a means of acquiring title to land; while referring to the decision in NWUBA MORA & ORS v. NWALUSI & ORS (1962) 1 ALL NLR (Pt. 4) 681 at 684. From then on at pages 16 to 18 of the Appellants’ brief of argument, the learned SAN continued to copiously refer to what he saw as relevant parts of the evidence of PW9 indicating that it was Aperin Obisesan family that originally granted land to Ojewande families. Learned counsel emphasized the evidence of PW2, PW6, PW7 and PW8 in their response to questions under cross examination by learned counsel to the Respondents.
According to the learned counsel to the Appellants the confirmation of Obisesan as owner of the land in dispute is not limited to pieces of evidence from the witnesses of the Appellants but also from the Respondents through documents such as Exhibit G, Exhibit B and Exhibit BA. The learned SAN suggested that the contents of Exhibits BA and G are an admission against interest. He then referred to Section 20 (3) of the Evidence Act where it is provided that statement in a proceeding by a party interested in the subject will be binding as admission against interest. He referred to the case of MOROHUNDE v. ADEOTI (1997) 6 NWLR (Pt. 508) 326 where it was held that what was admitted needed no proof. He also referred to several other cases on the same principle. And while explaining that in civil matters the proof of a claim is on balance of probabilities, he submitted that the Appellants had discharged the burden of proof of ownership of the land in dispute.
Against the backdrop of this, learned counsel typified the findings of the lower Court as products of wrong evaluations of evidence and failure to ascribe probative value to various documentary exhibits such as Exhibits B, BA, A and G, amongst others. He maintained that proper inferences were not drawn from all these documents. He referred to the decision of the Supreme Court in ANYEGWU v. ONUCHE (2009) 3 NWLR (Pt. 1129) 659 where the steps to be taken in the appraisal, assessment and evaluation of evidence were outlined. He also referred to other decisions of similar effect. According to the learned SAN, where a trial Court failed to properly evaluate the evidence before it, an appellate Court can, upon a proper complaint, do its own evaluation of the evidence on record, and arrive at what it considers to be the proper findings in the circumstance. He maintained that the rejection of evidence of traditional history in the case of the Appellants, by the lower Court was one of the main instances of improper evaluation of evidence leading to perverse findings.
Learned Counsel Alhaji Sanusi SAN continued to reiterate and sustain his complaints against the judgment of the lower court when he referred to Exhibits K and K1, being parts of a book “Outlines of History of Ibadan” by Kemi Morgan at pages 86 to 87, a translation of the Yoruba version which was written by former Olubadan, Oba Isaac B. Akinyele who reigned between 1955 to 1964, together with the evidence of DW1, who compared Exhibits E and W and told the Court that the area edged Green in Exhibit E is identical with everything in Exhibit W leading to the finding of the learned trial judge that those facts are not satisfactory enough to make the history of the Plaintiffs more probable than that of the defendants/respondents. He then typified this finding as perverse because acts of recent possession by the Appellants were more cogent than those of the Respondents and added that since there are abundant acts of ownership by Appellants aside from payment of Ishakole by Oyetola, the presence of members of Oyetola family on the land in dispute cannot be anything other than evidence of their customary tenancy. He then emphasized the decision of the Supreme Court in OGBE v. ASADE (2009) 18 NWLR (Pt. 1172) 106 at 132 B-D to maintain that in this circumstance possession is a cardinal incidence of principle of customary tenancy.
In a further effort, learned counsel argued and submitted that the explanations and rationalizations of events and facts by DW7 adopted by the lower Court to anchor and support its findings which supported the case of the Respondents was wholly inappropriate and totally perverse. The learned SAN criticized the judgment of the lower Court and pointed out that some of its findings and conclusions amounted to an approbation and reprobation. In an example, he remarked and explained that at page 326, it totally rejected the 2 versions of traditional history but chose to rely on evidence of traditional history of the Respondents at page 338 to give judgment in the counter claim. The learned SAN referred to other parts of the judgment he considered as contradictory. Against all these, learned counsel strongly suggested that if the lower court had been consistent in its findings against all the credible evidence in the mater, it would not have had any difficulty in upholding the claim of the Appellants. Upon this, he maintained that this attitude of approbating and reprobating was erroneous.
While pointing out that the learned trial judge granted the reliefs in the counter claim before considering the evidence to support them, learned counsel relied on the decision in YUSUF v. KODE (2002) 6 NWLR (Pt. 762) 231 at 239 and 254 D-G and argued that if a judge decides an issue after considering the evidence led by the plaintiffs and before proceeding to examine the evidence led by the defence he would be in error as he would have prejudged the issues before he considered the case of the defence. Added to this, the learned SAN pointed out that the learned trial judge justified some of his findings upon his private opinions, thereby relying on inadmissible evidence and maintained that this led to the inability of the learned judge to avert a miscarriage of justice on the Appellants.
In concluding his arguments on this issue the learned SAN argued forcefully that the Land Use Act cannot in the circumstance of this matter be applied and interpreted to have abrogated customary tenancy. He relied on the decision in ONWUKA v. EDIALA (1989) 1 NWLR (Pt. 96) 182 at 199 D-E per Wali, JSC. He urged on the Court to hold that by conducting themselves in a manner prejudicial to the interest of the Appellants, and contrary to their status as customary tenants the Respondents ought to have been held liable to forfeit their tenancy and the lower Court should have accordingly so decided. He urged on this Court to so do and resolve this issue against the Respondents.
In what appears to me to be his response to the arguments of the learned SAN, learned counsel to the Respondents, Mr. Akintola, was a bit more restrained because his issues 2 and 5 did not involve as many grounds of appeal but suffice it here that his arguments and submissions on his issues 2 and 5 would appear to meet the case of the Appellants on their issue 5.
In putting forward his response to some of the robust arguments of the Appellants, learned counsel to the Respondent began with what may be taken as an explanation that evidence of traditional history when cogent, credible, reasonable, free from contradictions can satisfactorily be reliable to establish a claim for a declaration of title or to a landlord a right of occupancy. He supported this explanation with the case EZE v. ATASIE 2 NSCQR 1147 AT 1148 AND OJOKOLOBO v. ALAMU (1998) 7 SCNJ 14. He then proceeded to list out about ten instances of what he called inconsistencies and contradictions in the case of the Appellants with respect to the evidence of some of the witnesses and the documents they adduced.
Against this background he went on to explain further that in the absence of consistent and straight forward evidence of traditional history the rule in the case of KOJO II v. BONSIE (1957) 1 WLR 1223, cannot apply. According to Mr. Akintola, of counsel, the learned trial judge rightly relied for his findings on acts of recent ownership as enunciated in KOJO v. BONSIE. It is also the view of Mr. Akintola that it was because of the inconclusive nature of the evidence of traditional history adduced by both parties that led the learned judge to reject both versions at the onset. However, when the facts from the perspectives of each set of parties were tested against Exhibit BB, the version of the Respondents was found by the Court to be more probable and credible. And while referring to some decided cases, learned counsel argued that Exhibit AA was the judgment in an arbitration proceedings where the Olubadan specifically found that it was Oyetola that founded the land on which Aba-Nla and later Fawande village were established. In a further effort learned counsel referred to the cases of OKEBOLA v. MOLEKE (1975) 12 SC 69 and others and suggested that all the explanations by DW7 and the findings on them were only based upon pleaded facts and credible oral and documentary evidence. He also argued that the recent acts of ownership within living memory referred to by the learned trial judge at pages 336-340 of the record of appeal were apt and justified and the lower court was perfectly entitled to refer to the oral evidence of witness in determining what was the more appropriate interpretation to give to the letter in Exhibit G as a result of the use of the words “Founder” at the initial stage of it and the word “Landlord” in its latter part.
While referring to a number of decided cases, learned counsel pointed out about 13 instances, from all available evidence which led the lower court to make the findings that weighed against the claim of the Appellants. He then maintained that whatever admissions that there could be in favour of the case of the Appellants must remain irrelevant for purposes of a claim for a declaration of title to land. He referred to the case of MILITARY GOV. v. KOLAWOLE 35 NSCQR 507 at 529 to 530 and wondered how the evidence on record which showed that the Aperin family met Oyetola on the land can be ignored. He wondered further how a family that met another family on a land in dispute can turn out to be its landlord. In support of all his arguments and submissions on who met the other on the land in dispute between Oyetola and Aperin Obisesan, learned counsel kept faith with and relied on Exhibit B8.
In conclusion, learned counsel Mr. Akintola submitted that the learned trial judge made findings of fact only based on credible and uncontradicted evidence before him that the family of the 1st Respondent is the owner of the land in dispute. He maintained that the entire case was fought on the question of who was the original owner of land in dispute and the lower court merely declared the obvious that it was the Oyetola family and he urged on this Court to so hold and declare while proceeding to resolve this issue against the Appellants.
It appears quite clear from the onset that that nearly all the grounds of appeal that gave birth to this issue are each a complaint on the question of proper evaluation of both oral and documentary evidence. Under Nigerian Case Law evaluation of evidence comes in 2 ways; i.e. findings of fact based on the credibility of witnesses and findings based on assessment, review and appraisal of received and admitted evidence. The former function is the exclusive duty of the Court of trial, while in the latter case an appellate Court is in a good position, upon a proper complaint to interfere to re-evaluate whatever adduced and admitted evidence on record and will not hesitate to make its own findings where the findings of the lower court were perverse or unreasonable.
Where findings are unreasonable or perverse they could lead to a miscarriage of justice. Findings are perverse or unreasonable if they were made, for example, upon the consideration of extraneous factors such as bias, prejudice or mistaken belief etc.
Findings made exclusively on the credibility and demeanor of witnesses remains within the sole competence of trial Courts and appellate Courts must always feel outrightly reluctant or totally unable to venture to interfere with. See BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388, ARE v. APAYE (1990) NWLR (Pt. 132) 298; FATUNDE v. ONWOAMANAM (1990) LPELR-1253 (SC) and ATANDA v. ATANI (1989) 3 NWLR (Pt. 111) 511.
The procedure for evaluation of evidence and ascribing of probative value to it had been outlined in the vintage and evergreen case of MOGAJI v. ODOFIN (1978) 4 SC 91 at 94 to 96 and this involves putting the entire evidence of each of the parties on either sides of the imaginary scale of justice. Whichever side that weighs heavier carries the day because it gets the judgment of the Court upon the well known principle of adjudication in civil cases that proof is on balance of probabilities or preponderance of evidence. It is upon the foregoing guiding principles that I would now proceed to resolve this issue.
With respect to the facts and circumstances in this appeal, each of the parties sought to primarily rely on evidence of traditional history to prove its case. They each, however, failed. According to the learned trial judge at page 326:-
“There is serious conflict in the version given by the plaintiffs that Obisesan Aperin after conquest acquired and settled upon the land in dispute and a subsequent grant was made to Oyetola by one of the children of Obisesan Aperin i.e. Akinoso, Agbaakin II. The defendant (sic) controverted and contradicted the plaintiffs’ version by stating that Oyetola settled on the portion claimed by his descendant and was never a grantee of Obisesan Aperin family. Also, the version of the plaintiffs is to the effect that Ogungbola made grant of portion of Obisesan land to the father of Ojewande but the case of the 2nd-5th defendants given by the evidence of DW8, Oyetunji Ojewande is that the 1st defendants’ ancestor Oyetola made grant of his land to their father Ojewande.”
(See lines 21 to 30 page 326 of record of appeal).
Faced with this sort of dilemma and after a finding that both versions of facts and events were only conflicting and contradictory, they were also inconclusive, the learned trial judge find himself unable to be satisfied by either version. In my view this is the background that triggered off a series of efforts by the learned trial judge to enable him to do justice in the matter. Against this he decided thus:-
“Before ascribing any probative value to any of the versions I shall subject the versions to the crucible of fact in recent history.”
(See lines 30-32 at page 326).
While totally not unaware that evidence of traditional history, where cogent, consistent and credible, can fully support a claim for a declaration of title to land, the learned trial judge proceeded to assess and evaluate other oral and documentary evidence before him. Therefore, the issue is not about want of evaluation of evidence at all but whether the evaluation was proper in the circumstance. It would have been proper and perfectly right if the correct inferences and conclusions were drawn and made from all the available credible evidence.
The law has remained settled that where there is conflict of traditional evidence, the best way to test it is by seeing which of the 2 competing versions of historical events was most probable. See OLARENWAJU v. GOV. OF OYO STATE (1994) 11/12 SCNJ 92. It is however, not the law that once there are conflicts in the evidence of traditional history between rival parties, the trial Court must declare them inconclusive and thereupon proceed to consider recent acts. It would therefore seem that the principle in the famous and vintage case of KOJO v. BONSIE and other cases decided upon its enunciated principles can only be brought into play when the trial judge first discharged his duty to find which of the 2 competing versions was more probable by testing it against other evidence in the case. See DIBIAMAKA v. OSAKWE (1989) 3 NWLR (Pt. 107) 101 at 112.
According to the decision in BURAIMOH v. BAMGBOSE (1989) 3 NWLR (Pt. 109) 353 at 362, where questions of title to land arise in a matter, the Court must be concerned only with the relative strength of title proved by the rival claimants.
All these must be considered without it being borne in mind that in a claim for declaration of title to a parcel of land, the onus is on the claimant to prove that he is entitled to the declaration which he had sought. He has to succeed on the strength of his own case and not on the weakness of the defence. See KODILINYE v. ODU 2 WACA 135 and ARE v. IPAYE (supra).
In the instant case, the learned trial judge proceeded to examine other evidence adduced before him. He scrutinized the oral evidence of witnesses examined and analyzed the words in some documents. The learned trial judge was so detailed with respect to Exhibit G that it formed the major foundation of his most crucial findings that the Appellants cannot be said to be the landlords of the Respondents. There were also other findings that diminished the case of the Appellants before the Court. At page 335, the learned judge observed thus:-
“Having considered the evidence it is my own belief that if a person is mandated and given authority to wage war, and defend territory, a successful prosecution of the war does not by reason of such automatically confer the ownership of the area on the warrior.
Such warrior can in certain circumstances acquire the land as spoils [of war] but there must be strong and convincing evidence of acquisition of ownership and possession which must be exclusive, numerous and positive that will lead to inference of ownership.”
Against this observation the learned judge then went on to decide that:-
“The plaintiff (sic) has not been able to convince me that Obisesan Aperin exclusively exercise (sic) act of ownership on the land in dispute.”
(See lines 20-22 at page 335).
From pages 336 to 348, the learned trial judge continued to make other similar findings. For example, based upon the principle that a person who claims that another person was his customary tenant and if that tenant was claiming ownership it was incumbent on the former to give good and satisfactory evidence of the grant and how the tenant was put in possession. Upon this and the decision in ODURAN & ORS v. ASARAH & ORS (1972) 5 and 6 SC 173 at 179 and the evidence before him the learned judge held thus:-
“Therefore subjecting the 2 versions of traditional history to the crucible of recent events or facts within living memory I am convinced and persuaded that the history of the defendants…. more probable and give effect to it. I hold therefore that Oyetola established and founded Abanla later known as Fawande village; that Oyetola made grants to various tenants who established villages and residential settlements, the grants made include the grants made to Ojewande…”
(See lines 21-27 at page 338)
This finding was so crucial and indeed devastating to the case of the Appellants before the learned trial judge. It totally knocked out the bottom of the case of the Appellants. There was hardly anything more to do to make it worse. At page 339, the learned judge proceeded to consider the reliefs in the claim of the Appellants. And after other equally devastating and crucial findings on the facts and the law, the learned trial judge examined each of the 7 reliefs claimed by the Appellants and totally felt unable to see any merit in any of them. He proceeded to refuse them and dismiss the case of the Appellants.
I have carefully considered all the evidence before the learned judge of the lower Court and the various steps he took to arrive at his decisions and findings. And while totally mindful of all the guiding principles in that behalf and as adumbrated herein before, as well as the key consideration that a claimant in an action for declaration of title to land must rely on the strength of his case and not the weakness of the defence against it, I must in the circumstance give due credit and respect to the findings of the lower Court. In an appeal, it is not for the appellate Court to substitute its view against that of the lower Court where there is no strong foundation or basis for doing that. It is because of this that I find myself unable to fault the findings of the learned trial judge and the steps he took in arriving at them. I would, in the circumstance resolve issue 5 against the Appellants and in favour of the Respondents.
I have earlier in this judgment described issue 5 as the “mother of all the issues” in this appeal. To me it has remained so without any doubt. Form pages 348 to 352 of the record of appeal, the learned trial judge considered the merits of the counter claim and ultimately decided in favour of same. I do not see any justification to interfere with any of those findings and the decisions made thereon issues 2, 3 and 4, in my view have now become merely academic after the resolution of issue 5. I do not think that there was any need to go further than to hold that this appeal lacks merits and it accordingly dismissed, with N50,000 costs in favour of the Respondents.
In consequence of dismissing this appeal, the judgment of the Oyo State High Court, Ibadan Division delivered on 3/02/2009 in Suit No. 1/896/2000 is hereby upheld and affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: I agree with the judgment delivered by my learned brother, Ali Abubakar Babandi Gumel, J.C.A. I abide by the consequential order made therein.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading before now, the judgment of my lord Ali Abubakar Babandi Gumel J.C.A.
The learned trial judge at length, considered the evidence of traditional history of the parties and arrived at his preference based on established legal principles.
His findings were not perverse and will therefore be accepted by this court as this court cannot for the mere sake of it, substitute its opinion in the place of the reasoned opinion of the lower court.
I agree with the reasoning and conclusions of my learned brother Gumel, JCA in dismissing the appeal. I will also abide by his order as to costs.
Appearances
Alhaji Lasun Sanusi SAN with Mr. S. OgueriFor Appellant
AND
Mr. Niyi AkintolaFor Respondent
