PABIEKUN & ORS v. OBISANYA & ORS
(2020)LCN/15466(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, December 18, 2020
CA/AK/44/2017
RATIO
COMPETENCE OF COURT: WHETHER AN APPELLATE COURT MAY RE-EVALUATE THE FINDINGS OF A TRIAL COURT
The law is settled that if there has been a proper appraisal of evidence by a trial Court whose primary duty it is to so do, as it is in the instant matter, an appellate Court is robbed of the power to embark on a fresh appraisal of the same evidence in order to merely arrive at a different conclusion from that reached by the trial Court. See the cases of: (1) Akinleye v. Eyiyola (1968) NMLR p. 92; (2) Onyejekwe & Ors. v. Onyejekwe & Ors. (1999) 3 NWLR (Pt. 596) p. 482; (3) Kaydee Ventures Ltd. v. The Hon. Minister FCT & Ors. (2010) LPELR-1681 (SC) and (4) Owie v. Ighiwi (Supra). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
BURDEN OF PROOF: WHETHER HE who asserts the affirmative of an issue BEARS THE BURDEN TO PROVE SAME
It is trite law that he who asserts the affirmative of an issue has the burden of proving the truth of such assertion. The burden of proof in an action or proceeding lies on that person who would fail if no evidence were given on either side in respect of a material fact. See Sections 131, 132 and 133 of the Evidence Act, 2011 and the cases of: (1) Elias v. Disu & Ors. (1962) LPELR-25114 (SC); (2) Osawaru v. Ezeiruka (1978) LPELR-2791 (SC); (3) Nwavu & Ors. v. Okoye & Ors. (2008) 18 NWLR (Pt. 1118) p. 29 and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
GROUNDS OF APPEAL: WHETHER ISSUES FOR DETERMINATION MUST BE DEDUCED FROM GROUNDS OF APPEAL
The law is settled beyond equivocation that every issue for determination in a brief of argument must be formulated from one or more grounds of appeal. Any issue which therefore is not directly connected to or indicated as deriving from a ground or grounds of a duly filed appeal is not only irrelevant to the particular appeal, but is also incompetent. Such issues are framed in the abstract. In other words, grounds of appeal not concretely referred to under issues in the brief of argument, are deemed abandoned and the brief of argument is rendered unsuitable for usage. If the brief of argument is that of the Appellant, of course, such ground or grounds of appeal left unattended to are liable to be struck out. In the same vein, if it is the Respondent’s brief of argument that is so plagued, as it is in the instant case, issues framed in the abstract have the same effect, the grounds of appeal are deemed conceded to by the Respondent and the brief being bad is incapable of negating the brief of argument of the Appellant as intended. It is not the role of the Court, indeed the Court is incompetent, to engage in the resolution of conflicts in the processes filed for litigants by their Counsel. Courts especially appellate Courts operate on very clear principles. The role of this Court is therefore circumscribed by the consideration of the merits or otherwise of the complaint(s) properly raised in competent grounds of appeal and properly formulated as issues in the appeal which are equally argued in the briefs of argument of the parties thereto. See the cases of: (1) Ogundiyan v. State (1991) 3 NWLR (Pt. 181) p. 519; (2) Baridam v. State (1994) LPELR-753 (SC) and (3) Kayode v. State (2016) LPELR-40028 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
1. TORERA PABIEKUN 2. OLAJIDE KOLAJO PABIEKUN 3. OGUNDELE PABIEKUN (For Themselves And On Behalf Of Pabiekun Branch Of Lukugba Family) APPELANT(S)
And
1. BAALE EMMANUEL OBISANYA 2. CHIEF LASISI ODUNLADE (Baale Okerewe) 3. LOGUN BUNMI DAIRO 4. CHIEF OBISANYA (Baale Araromi Okeodo) RESPONDENT(S)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State holden at Ile-Ife (hereinafter referred to as “the trial Court”) delivered on the 29th day of September, 2016 in Suit No. HIF/34/2012.
The brief background facts of this matter from the perspective of the Appellants are that, the farmland in contention located at Yekere Village, also known as Olopa Village is the property of Lukugba family. According to the Appellants both themselves and the Respondents are descendants of Lukugba, the original owner of vast farmland. Contrariwise, the Respondents have asserted that, the Appellants, whose progenitor was a servant of the Respondents’ ancestor, Lukugba and therefore are not members of the Lukugba family. The Appellants has thus filed the action, the subject of this appeal, at the trial Court, to claim their entitlement to the rent or “Ishakole” due from the tenants who are on the land in question. In other words, the Appellants had taken an action against the Respondents to press home their demands for their own share of rent and injunctive order to restrain the Respondents from further collection of rent without the prior consent of the entire members of the Lukugba family. Specifically, “vide” their Writ of Summons and Statement of Claim, the Appellants sued and claimed against the Respondents as follows:
“1. Declaration that the farmland at Yekere Village otherwise known as Olopa Village is the property of Lukugba family of which the plaintiffs and defendants are members.
2. Declaration that the plaintiffs and defendants as members of Lukugba family are fully entitled to Ishakole or rent due from tenants on Lukugba family farmland at Yekere Village otherwise known as Olopa Village.
3. Declaration that the defendants have no right to collect Ishakole or rent from tenants on Lukugba family farmland at Yekere Village otherwise known as Olopa Village without the consent or knowledge of the plaintiffs who are members of Lukugba family.
4. An account from the defendants of rent due or Ishakole unlawfully collected from tenants on Lukugba farmland at Yekere Village or otherwise known as Olopa Village. The defendants have failed to render any account to the plaintiffs or any account at all.
5. Injunction restraining the defendants from collecting Ishakole or rent from tenants on Lukugba family farmland at Yekere Village otherwise known as Olopa Village without the consent and knowledge of the entire members of Lukugba family.
6. The Plaintiffs institute this action in a representative capacity.”
After the exchange of the pleadings of the parties by their respective Counsel, the case went to trial. In the bid to establish the claims of the Appellants, they fielded four witnesses and tendered some documents in evidence. On the other part, in defence of the action against them, the Respondents called five witnesses and also tendered some documents in evidence. Counsel’s Written Addresses were filed and exchanged at the close of the cases for the parties. Consequently, in the considered judgment in the case delivered on the 29th of September, 2016, the trial Court held that the Appellants failed to prove their claims, hence the action of the Appellants was dismissed.
The Appellant irked that the judgment of the trial Court was not in their favour, filed this appeal against the judgment to this Court. The Notice of Appeal of the Appellant dated and filed on the 23rd of December, 2016 contains the following three grounds of appeal viz:
“GROUNDS OF APPEAL
GROUND 1
The trial Court erred in law and misdirected itself when it held that the Plaintiffs/Appellants family are not related to Lukugba Family.
PARTICULARS OF ERRORS
1. The Plaintiffs/Appellants had tendered and relied on the Supreme Court Judgment in Suit No. SC/29/67 of 3rd April, 1970 wherein the Court re-emphasized the decision of the Ibadan High Court in Suit No. I/135/57 which had decided on the issue of the relationship of the Plaintiffs/Appellants to the Lukugba family which thus becomes estoppel.
2. The lower Court erred in law to have overlooked the Supreme Court decision being the final Court of adjudication by reversing the decision of the Supreme Court and stating that the Plaintiffs/Appellants are not related to Lukugba family.
3. By the principle of Stares Decisis the lower Court ought to have held that the issue of the relationship of the Plaintiffs/Appellants to the Lukugba family had become an issue of estoppel and refuse to make the declaration sought by the Defendants/Respondents in view of the Supreme Court decision in suit No. SC/29/67 of 3rd April, 1970.
GROUND 2
The trial Judge erred in law when he held that the Plaintiffs/Appellants suit is statute barred.
PARTICULARS OF ERROR
1. The Appellants’ claims are not for a declaration of title or for the statutory right of occupancy or recovery of land as to be caught by the statute of limitation but claiming joint ownership of the disputed land with the Respondents.
2. The injunctive relief sought by the Appellants against the Respondents is not against the Respondents to be restrained from trespassing or claiming ownership of the land in issue but to be restrained from singularly collecting tributes or rents from tenants without the consent and knowledge of the entire Lukugba family.
GROUND 3
The trial Court erred in law to have held that the suit of the Appellants was caught by the doctrine of laches.
PARTICULARS OF ERROR
1. The trial Court failed to consider the intervening steps taken by the Appellants to seek arbitration between the Respondents and themselves before traditional authorities. Thus, making the doctrine of laches inapplicable.”
In obedience to the rules of this Court, briefs of argument were settled and exchanged by the Counsel for the parties in support of their opposing positions in the appeal.
Mr. Ifedayo Olowoyo of the law firm of Ifedayo Olowoyo & Co., the Appellants’ Counsel settled the Appellants’ Brief of Argument dated 10th of May, 2017, filed on the 27th of November, 2017 but deemed properly filed on 30th of September, 2020. In the brief, the three issues donated for determination read as follows:
“1. Whether having regard to the decisions of the High Court of Osun State sitting in Osogbo in Suit No. HOS/135/64 and the affirmative pronouncement of the Supreme Court in Suit No. SC/29/67 of 3rd April, 1970, the issue of the relationship of the Appellants and Respondents has not been finally resolved as to make it become issue estoppel per res judicata?
2. Whether the claim of the Appellants at the trial Court for the declaration of the land in issue and the collection of tributes therefrom as joint entitlement of both Appellants and Respondents can be termed to amount to a claim for title to land or for the recovery of land as to make their Suit caught by the Limitation Law of Osun State?
3. Whether the Respondents can rely on the defences of laches, acquiescence and standing-by as pleaded in their Amended Statement of Defence without pleading sufficient facts and particulars upon which the defence is predicated to enable the Appellants react to them?”
The Respondents’ Brief of Argument dated, filed on the 19th of December, 2017 and deemed properly filed on the 30th of September, 2020 was settled by the Respondents’ Counsel, Mr. Funso Olagbaju. The six issues identified for determination in the brief state as follows:
“1. Whether or not the finding of the trial Court that the Appellants’ family i.e. Pabiekun family are not related to the Lukugba family can be supported by the evidence led before the trial Court?
2. Whether or not the Appellants raised the defence of estoppel per res judicata before the trial Court that can now avail the Appellants in this case?
3. Whether from the claims of the Appellants, it cannot be said that their claim amounts to a claim for title to land or for the recovery of land which comes within the purview of the Limitation Law of Osun State?
4. Whether from the circumstances of this case, the trial Court ought to have held that the Appellants slept upon their right under the doctrine of laches?
5. Whether the trial Court was right to have dismissed the claims of the Appellants having failed to establish their claims?
6. Whether the Court of Appeal can interfere with the findings of the trial Court in the circumstances of this case?”
In response to the Respondents’ Brief of Argument, the Appellants’ Counsel further filed the Appellants’ Reply Brief dated and filed on the 6th of May, 2019 but deemed properly filed on the 30th of September, 2020.
At the hearing of the appeal by this Court on the 30th of September, 2020, the Appellants’ Counsel, Mr. Ifedayo Olowoyo adopted the two briefs filed for his client in urging upon this Court to allow the appeal and set aside the decision of the trial Court.
However, despite service of hearing notice for the day’s proceedings on the Respondents, the Respondents as well as their Counsel were absent from the said hearing without any excuse. That notwithstanding, since the Respondents’ Brief of Argument have been properly filed, this Court deemed as duly adopted pursuant to the provision of Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.
I will pause here to consider the competence or otherwise of the Respondents’ Brief of Argument even though same has not been addressed by the Appellants’ counsel. I have perused the entire length and breadth of the said Respondents’ Brief of Argument and found that, none of the six issues supposedly submitted for determination, in opposing the appeal, was hinged on any of the three grounds of appeal contained in the Appellants’ Notice of Appeal. In Paragraph 2:00 of the Respondents’ brief, learned Counsel for the Respondents stated that, “the Respondents adopts the 3 (sic) issues formulated by the Appellants and shall argue same along with the following issues also submitted for determination.” I must straightaway state that the foregoing procedure is unknown both to law and in practice. Worse still, the Respondents’ learned Counsel clearly did not argue the three issues donated by the Appellants, rather, he submitted and argued four out of the six issues donated by him for determination. As adverted hereinbefore, the six issues purportedly submitted for determination were not connected to any of the grounds of appeal. There is no doubt that the learned Counsel for the Respondents is ignorant of the proper procedure of formulation of issues from the grounds of appeal of the appellant, when representing the Respondent. It is my very firm view that, the Respondents’ brief of argument in the instant matter is far from satisfactory, it is devoid of form and abstract.
The law is settled beyond equivocation that every issue for determination in a brief of argument must be formulated from one or more grounds of appeal. Any issue which therefore is not directly connected to or indicated as deriving from a ground or grounds of a duly filed appeal is not only irrelevant to the particular appeal, but is also incompetent. Such issues are framed in the abstract. In other words, grounds of appeal not concretely referred to under issues in the brief of argument, are deemed abandoned and the brief of argument is rendered unsuitable for usage. If the brief of argument is that of the Appellant, of course, such ground or grounds of appeal left unattended to are liable to be struck out. In the same vein, if it is the Respondent’s brief of argument that is so plagued, as it is in the instant case, issues framed in the abstract have the same effect, the grounds of appeal are deemed conceded to by the Respondent and the brief being bad is incapable of negating the brief of argument of the Appellant as intended. It is not the role of the Court, indeed the Court is incompetent, to engage in the resolution of conflicts in the processes filed for litigants by their Counsel. Courts especially appellate Courts operate on very clear principles. The role of this Court is therefore circumscribed by the consideration of the merits or otherwise of the complaint(s) properly raised in competent grounds of appeal and properly formulated as issues in the appeal which are equally argued in the briefs of argument of the parties thereto. See the cases of: (1) Ogundiyan v. State (1991) 3 NWLR (Pt. 181) p. 519; (2) Baridam v. State (1994) LPELR-753 (SC) and (3) Kayode v. State (2016) LPELR-40028 (SC). In the instant case, I therefore hold that all the six issues purportedly formulated in the Respondents’ brief of argument are incompetent, liable to be and are accordingly struck out. There is thus nothing left of the Respondents’ brief for consideration.
Albeit, at this juncture, it follows that the Respondents are deemed to have conceded to the appeal, the law still behoves this Court to consider the appeal on the merits. What is more, since the judgment of the trial Court was in favour of the Respondents, the Appellants have the legally bounden duty to justify their contention that the Respondents did not in fact deserve to be favoured with the said judgment of the trial Court.
Having declared the brief of argument of the Respondents incompetent, the Appellants’ Reply Brief of Argument in response thereto becomes otiose and same is accordingly discountenanced for the purpose of the resolution of the present appeal.
I will now proceed to the consideration of the three issues donated by the Appellants, same are apt for the just resolution of the grouse of the Appellants about the judgment of the trial Court being appealed against herein. However, I shall consider issue three first, issue two next and issue one last. For issues three and two touch on the competence of the action of the Appellants, the subject of this appeal.
I have read and duly considered the submissions of the Appellants’ counsel along with the judicial authorities relied on by him in the Appellants’ brief of argument. Same have been taken into consideration by me in the resolution of the crux of each of the three issues donated by Counsel for determination.
ISSUE THREE
“Whether the Respondents can rely on the defences of laches, acquiescence and standing-by as pleaded in their Amended Statement of Defence without pleading sufficient facts and particulars upon which the defence is predicated to enable the Appellants react to them?”
The contention of the Appellants under this subject is that the Respondents failed at the trial Court to conform to the proper procedure in raising the defences of laches, acquiescence and standing-by. According to the Appellants’ Counsel opined that the Respondents failed to properly plead and prove the said defences.
On this subject, the learned trial Judge at pages 19 to 20 of his judgment contained in pages 328 to 329 of the Record of Appeal as follows:
“The right has clearly been slept upon under the doctrine of laches and I so hold. Under this principle lapse of time and delay are most potent in the circumstances of this case …”
Just like where special damages is claimed, the defences of laches, acquiescence and standing-by are special matters that must be specifically pleaded for them to be relied upon. They are not law but only facts leading to law and they are to be supported by evidence at the trial.
In the instant case, the Respondents in Paragraph 28 of their Amended Statement of Defence contained in page 163 of the Record of Appeal averred as follows:
“28. The Defendants also rely on lashes, acquiescence and standing by for forty-five years.”
It is my firm view and I hold that the above reproduced averment is a bare assertion. The averment is mere statement of law or legal principle totally devoid of the necessary facts and particulars which have culminated in the law and which will more importantly enable the adverse party respond appropriately thereto. The above stated paragraph falls very far short of the legal requirement in the drafting of pleadings of that nature. It is quite apparent from the Record of Appeal especially the proceedings of the trial Court, that the Respondents did not properly plead and failed to lead evidence in proof of the said defences. The law is trite that, the party relying on the defences must, plead that the adverse party fraudulently, knowingly and deliberately stood-by while he changed his position and adduce credible evidence to prove same. See the cases of: (1) Adeniran v. Alao (2001) 12 SCNJ, p. 337; (2) Ezekwesili v. Agbapuonwu (2003) 9 NWLR (Pt. 825) p. 337 and (3) Isaac v. Imasuen (2016) LPELR-26066 (SC).
It is pertinent to state that, the above reproduced finding of the learned trial Judge that the Appellants have “slept upon their right under the doctrine of laches” is unsupportable by pleadings and evidence submitted before him by the parties herein and consequently perverse. The said finding is liable to be set aside.
Consequent upon the foregoing illumination, this issue is resolved in favour of the Appellants and against the Respondents.
ISSUE TWO
“Whether the claim of the Appellants at the trial Court for the declaration of the land in issue and the collection of tributes therefrom as joint entitlement of both Appellants and Respondents can be termed to amount to a claim for title to land or for recovery of land as to make their Suit caught by the Limitation Law of Osun State?”
At the trial Court, the Respondents had under this head claimed that the Appellants’ action as constituted before the trial Court was barred under the Limitation Law of Osun State, 2003 – see Paragraph 27 of the Respondents’ Amended Statement of Defence contained in page 163 of the Record of Appeal.
I must straightaway state that, I am at one with the position of the Appellants that their action, the subject of this appeal is not a claim for recovery of land as anticipated under the Limitation Law. Moreover, land ownership under native law and custom as in the instant matter, is jealously guarded in different forms by the different communities in Nigeria. In other words, limitation law is therefore not applicable to land held under customary law. This Court in the earlier case of: Ogunlana v. Dada (2010) 1 NWLR (Pt. 1176) p. 534 held that:
“Land possession and ownership is a customary practice which is jealously guarded in different forms by different communities in Nigeria. One common denominator in all these practices is the perpetuity of land ownership by its original owners. In the instant case, it would therefore be importing an alien law into the Yoruba customary land holding to apply the Statute of Limitation to divest the Itire people of their customary law title.”
In sum, in any which way it is viewed, I hold that the defence of limitation of law is thus not available to the Respondents in the circumstances of this case. The decision of the learned trial Judge therefore that the action of the Appellants before it is statute-barred was given “per incuriam” and is an error in law. The said decision of the trial Court is equally liable to be tampered with hereat.
Again, this issue is adjudged a success and resolved in favour of the Appellants and against the Respondents.
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ISSUE ONE
“Whether having regards to the decisions of the High Court of Osun State sitting in Osogbo in Suit No. HOS/135/64 and the affirmative pronouncement of the Supreme Court in Suit No. SC/29/67 of 3rd April, 1970, the issue of the relationship of the Appellants and Respondents has not been finally resolved as to make it become issue estoppel per res judicata?”
As adverted by me at the debut of this judgment in the brief background facts of the Appellants’ action against the Respondents at the trial Court, there is no question that the relationship of the Appellants and Respondents as members of Lukugba family is in issue in the said action, the subject of this appeal.
At the risk of repetition, the Appellants’ claim is that they are members of Lukugba family, while the Respondents have claimed that the progenitor of the Appellants a junior hunter “Omo Ode” named Pa Akoni fathered Ogunsusi Pabiekun, the great-grandfather of the Appellants.
According to the Respondents, Lukugba fathered very many children through his wives viz: Jalodo, Ariyoyo and Lateye. The 1st Appellant who gave evidence at trial as DW3 and DW4 are from Lateye Branch. The 2nd Appellant DW1 is from Jalodo Branch. The 3rd Appellant DW2 is from Ariyoyo Branch.
Further, the Respondents stated that one late Falana from Ariyoyo Branch adopted Pa Akoni the great-great grandfather of the Appellants into the Lukugba family. Pa Akoni became so much trusted that he and his descendants were assigned with the responsibility of collecting rents from the very many tenants in the huge farmlands of the Lukugba family until late Ogunsusi Pabiekun the grandfather of the Appellants abused the privilege. Hence he along with his family members were expelled from the farmland allotted to them.
From the above enumerated antecedents as borne out of the pleadings and evidence adduced by the parties at the trial as can be gleaned from the Record of Appeal, it is a misconception on the part of the Appellants to now propose in this Court that the issue of their membership of Lukugba family is not a bone of contention and has long been settled by the Courts.
I have examined the previous judicial decisions relied upon by the Appellants, particularly, Exhibit P09 the decision of the Supreme Court in Suit No. S.C. 29/1967. Curiously, the trial Court failed to consider and make any pronouncement on the said decisions. That notwithstanding, having scrutinized the said decisions, I am of the opinion and hold that, the co-membership of the Appellants with the Respondents of Lukugba family was not the subject of any of the said decisions particularly the decision that culminated in the appeal to the Supreme Court. Rather, in the said appeal, the issue in contention was whether one Alphonso Pabiekun had the authority of the entire Pabiekun family to litigate the action in Suit No. I/16/60. As rightly proposed by the Respondents, the issue of whether or not the Appellants are members of Lukugba family was never submitted for the consideration of and was not decided by the Courts in those litigations. Hence, the defence of “estoppel per res judicata” cannot avail the Appellants on this point.
For the Appellants to be entitled to “Ishakole”, that is, rents accruing from the tenants of Lukugba family, it must therefore be established, as asserted by the Appellants, that they are indeed members of Lukugba family, in line with the well established legal evidentiary burden of proof. The Appellants had come to Court seeking to share in the rents collection from the tenants in the Lukugba farmlands on the ground that they are members of Lukugba family. Once the question of membership of Lukugba family was put in issue, it was for the Appellants to prove their case that they are members of Lukugba family and concomitantly their entitlement to rents on the family’s farmlands. It is trite law that he who asserts the affirmative of an issue has the burden of proving the truth of such assertion. The burden of proof in an action or proceeding lies on that person who would fail if no evidence were given on either side in respect of a material fact. See Sections 131, 132 and 133 of the Evidence Act, 2011 and the cases of: (1) Elias v. Disu & Ors. (1962) LPELR-25114 (SC); (2) Osawaru v. Ezeiruka (1978) LPELR-2791 (SC); (3) Nwavu & Ors. v. Okoye & Ors. (2008) 18 NWLR (Pt. 1118) p. 29 and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC). In the instant matter, the Appellants as plaintiffs must satisfy the Court that they are entitled to the declaration sought as it relates to their membership of and rents from the tenants of Lukugba family. It is elementary law that proof in a civil case is on the balance of probability, also known as preponderance of evidence. That is, where the parties give evidence as to the claim before the Court, judgment will be given to the party whose evidence tilts in favour of in the case. In the case of: Owie v. Ighiwi (Supra), the Apex Court had the following succinct enunciation on the legal position viz:
“In determining either the balance of probability or preponderance of evidence, the trial Judge is involved in some weighing by resorting to the imaginary scale of justice … In arriving at the balance of probability or the preponderance of evidence, the trial Judge needs not search for an exact mathematical figure in the weighing machine because there is in fact no such machine and therefore, no figure; talk less of mathematical exactness. On the contrary, the trial Judge relies on his judicial and judicious mind to arrive at when the imaginary scale preponderates and that is the standard, though oscillatory and at times nervous. Where the findings of a trial Judge are clearly traceable to the evidence before the Court and so traced, an appellate Court has no jurisdiction to interfere. In other words, where the findings of a trial Judge are borne out from the evidence before him, an appellate Court has no jurisdiction to interfere. After all, the person who saw it all and heard it all is the trial Judge, not the appellate Judge. The appellate Judge only sees the cold records before him and he cannot do much unless the findings are not borne out from the records before him.”
I have stated hereinbefore that the claim of the Appellants before the trial Court is that because they are members of Lukugba family, they are also entitled to share, the rents accruing from the tenants in Lukugba farmlands, with the Respondents who they agree are also members of Lukugba family. To substantiate the claim, the Appellants adduced evidence through four witnesses tracing their geneology to Pa Lukugba through Pa Akoni and their late great-grandfather Ogunlusi Pabiekun. The Respondents adduced evidence to debunk the Appellants’ claim and maintained that, Pa Akoni the acclaimed progenitor of the Appellants was only a tenant at will in the farmlands allotted to Pa Akoni’s family by the late Pa Falana from Ariyoyo Branch of Lukugba family. DW1, DW2, DW3 and DW4 are all members of the three branches of the Lukugba family and their evidence is in tandem with the Respondents’ response to the claim of the Appellants. DW5’s late father Emmanuel Ogundajo had been a tenant of the Respondents for over sixty years and the farmland allotted to him by the Respondents and not the Appellants as claimed by the latter, was inherited by DW5. DW5 and his late father have been trusted tenants and also help(ed) the Respondents in supervising and collecting rents from the other tenants in various Lukugba family farmlands.
From the pleadings of the parties and evidence adduced by them as can be gleaned from the cold Record of Appeal before me, I am of the firm view and hold that the learned trial Judge duly evaluated the said evidence and arrived at the just conclusion that the Appellants of the Pabiekun family are not related to the Lukugba family of which the Respondents are “bona fide” members. At pages 15 to 16 of the judgment of the trial Court contained in pages 324 to 325 of the Record of Appeal, the learned trial Judge held that:
“I believe the version of the Defendants that both sides were (sic) not related. I am fortified in this view by the evidence of DW1 that the family trees (sic) as claimed by the Plaintiffs is (sic) wrong; the 2nd Defendant testified that …it was Rabiu Odunlade that later begat him; Lasisi Odunlade, thus Majaogbe never begat his father Odunlade as claimed by the Plaintiffs. In my view, the DW1 Lasisi Odunlade will at least know his father, and lineage.
From (sic) DW2, I gathered from his evidence that late Pa Falana his great grandfather from Ariyoyo Branch brought Akoni, father of Ogunsusi Pabiekun to Yekere Compound as his hunting maid (sic) (“Omo-Ode”). … The evidence of DW3 and DW4 were (sic) to the same effect. I have no reason to disbelieve the evidence of the defendant witnesses as they struck me as witnesses of truth and were unshaken under Cross Examination. Their evidence as analysed before me for (sic) DW1 and DW2 made sound testimony.”
The foregoing findings of the trial Court are borne out from the evidence adduced before it. Particularly as the findings touch on the credibility of the witnesses of the parties, which is the exclusive preserve of the trial Judge who saw, listened to and observed their demeanour, an appellate Judge cannot say that he either believes or disbelieves a witness that he did not have the opportunity of seeing, listening to and observing. However, from the printed Record of Appeal, it is crystal clear that the above reiterated findings of the trial Court are traceable to the evidence presented to it by the parties. The findings are in no way perverse.
Furthermore, the final conclusion of the trial Court that the Appellants not being members of Lukugba family cannot therefore share in the rents accruing from tenants to Lukugba family is unassailable.
In totality, I am of the humble but firm view and hold that the Appellants failed to lead sufficient credible evidence in verification of their case to have the judgment of the trial Court in their favour.
The law is settled that if there has been a proper appraisal of evidence by a trial Court whose primary duty it is to so do, as it is in the instant matter, an appellate Court is robbed of the power to embark on a fresh appraisal of the same evidence in order to merely arrive at a different conclusion from that reached by the trial Court. See the cases of: (1) Akinleye v. Eyiyola (1968) NMLR p. 92; (2) Onyejekwe & Ors. v. Onyejekwe & Ors. (1999) 3 NWLR (Pt. 596) p. 482; (3) Kaydee Ventures Ltd. v. The Hon. Minister FCT & Ors. (2010) LPELR-1681 (SC) and (4) Owie v. Ighiwi (Supra). The trial Court in my opinion, on this head properly evaluated the evidence of the parties and arrived at findings which I cannot fault.
Consequent upon the foregoing illumination, I hold that this issue cannot avail the Appellants and I resolve same against the Appellants.
This issue is the kernel of the appeal and having resolved it against the Appellants, it follows that this appeal is a failure.
I therefore dismiss the appeal accordingly.
The judgment of the trial Court delivered on the 29th of September, 2016 in this matter, is hereby affirmed, save the portion relating to the issues of laches, acquiescence, standing-by and statute bar.
I make no order for costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA.
I am in agreement with my Lord’s reasoning and conclusion with nothing useful to add thereto.
The appeal lacks merit and hereby dismiss by me as done in the lead judgment.
The judgment of the trial Court delivered on the 29th of September, 2016 is hereby affirmed, save the portion relating to the issues of laches, acquiescence, standing-by and statute bar as stated in the lead judgment.
Parties are to bear their costs of prosecution and defence of this appeal.
PATRICIA AJUMA MAHMOUD, J.C.A.: Having read before now the lead judgment of my learned brother, Oyebisi FoIayemi Omoleye, JCA I agree entirely with the reasoning and conclusion that this appeal be dismissed, I accordingly dismiss it. I abide by the consequential order that no cost be awarded.
Appearances:
Mr. Ifedayo Olowoyo, Esq. For Appellant(s)
Respondents’ Counsel was absent For Respondent(s)
