YERIMA MADAKI v. ANTHONY CIROMA & ORS
(2016)LCN/8329(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of March, 2016
CA/K/573/2014
RATIO
COURT: JURISDICTION; WHETHER THE EVALUATION OF EVIDENCE IS THE EXCLUSIVE RESERVE OF THE TRIAL COURT
In every civil case before an appellate Court. It is trite law that evaluation of evidence is the exclusive reserve of the trial Court. A trial Court has the primary responsibility of evaluating evidence. SEE the CASE Of ANTHONY TIPPI V. SYLVESTER NOTANI (2011) 8 NWLR (Pt.1249) pg.285 particularly at pg.288.
From the alive, it is therefore crystal clear that evaluation of evidence and finding of facts are within the exclusive preserve of the trial Court’ The Court of Appeal held in the Case of MAUN v. ABDUL (2001) 4 NWLR (Pt.702) pg.95 @ 108 – 109 paras H – D œthe primary responsibility of a trial court is to hear the parties, watch and observe the demeanour of the witnesses called to testify before it admits or rejects documents tendered, ascribe probative value to the evidence and come up with a decision” per. IBRAHIM SHATA BDLIYA, J.C.A.
COURT: WHEN THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
The law is trite, where a trial Court has had evaluated the evidence adduced by the parties in reaching a decision, an appellate Court cannot interfere or disturb such exercise or judicial duty unless it can be established that such exercise of judicial duty has not been properly carried out, or if carried out, not properly done or in violation of settled principles of law. In Ike v. State (2001) 14 NWLR (Pt.723) P. 221 at 255, the Supreme Court, per IGUH J.S.C posited the law thus:
“It cannot be over-emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw heard and assessed the witnesses as they testified in the witness box. See Akinliye and another v Eyiyola and another (1968) NMLR 92 at 95; Woluchem v Gudi (1981) 5 SC 291 at 320 etc. It is only where an appellate Court is in as good a position as the trial Court to evaluate evidence which has been given in a case, such as where the issue is essentially a matter of inference that can be drawn from proved facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the trial Court that it must not hesitate to do so. See Okafor v Idigo III (1984) 6 SC 1 at 36; The Registered Trustees of the Apostolic Faith Mission and Another v James and Another (1987) 2 NWLR (Pt.67) 556 at 567.
GALADIMA J.S.C. put it in these words in the case of Haruna vs. A. G. Evaluation (2012) 9 NWLR (Pt.1306) P. 419 at 439 – 440
“It is trite principle of law that an appellate Court should loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. It is only when the issue at stake is narrowed down to only the inference in the drawn from proved facts without going into the rigour of determination credibility that the appellate court could rightly intervene to re-evaluate evidence. The appellants argument is that the court ought to have re-evaluated the evidence without restricting itself to inference that could be drawn to already established facts. He also queried the credibility of witnesses called and evidence tendered. All these are clearly outside the allowed purview within which the Court below could re-evaluate the evidence already evaluated by a trial Court”‘
In Rasaki v, State (2011) 16 NWLR (Pt.1273) P.251 @ 303, this Court had this to say:
œA trial court being the master of the facts must base its inferences, evaluation or assessment and findings on the available evidence adduced before it. Its findings must not be premised on extraneous facts outside the evidence given at the trial. Once a trial court has properly evaluated and made correct findings on the evidence led before it, an appellate Court will be reluctant to disturb such findings unless such findings are shown to be erroneous or perverse. Where such findings are shown to be erroneous or perverse, an appellate court has the power or vires to deduce or reassess those findings of the trial Court as borne out by the record. It is the duty of the appeal court to show that the findings of the trial Court perverse.”
The Law is settled, an appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following:
(a) Where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
(b) Where the trial Court fails to make finding of fact 9n a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
(c) Where the trial Court gives an unfair treatment on the evidence of the parties before it.
See NEPA v. Archida (2006) 7 NWLR (Pt.979) P.245 at 272. per. IBRAHIM SHATA BDLIYA, J.C.A.
COURT: THE STATUTORY PROVISION FOR THE EXERCISE OF AN APPELLATE COURT’S JURISDICTION
Section 57 of the Law establishing Sharia and Customary Courts in Kaduna 2001 (amended) provides thus: “In the exercise of its appellate jurisdiction in civil matters under the law, an appellate Court May:
“(a). Whether after hearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is taken and may make such order as the Court of the first instance could have made in such cause or matter as it shall consider the justice of the case require;
(b). Quash any proceedings and there upon, where it is considered desirable, order any such Cause or matter to be heard de novo before the Court of first instance or before any appropriate court, provided that no additional summons fee shall be paid.
The contention of Madaki Esq, learned counsel to the appellant that the Lower Court failed to or neglected to re-evaluate the evidences on appeal in order to arrive at a just decision which the trial Court failed to do cannot be justified as earlier demonstrated in this judgment. The evaluation and reevaluate of the evidence by the trial Court and the Lower Court may not be at its best, but what is important is the consideration of the evidence of both parties and ascribing probative value thereto in arriving at a decision. In my view, both the trial Court and the Lower Court satisfactorily performed the duty expect of them in evaluating and re-evaluation of the evidence adduce by the parties before arriving at a just decision. The decision of the trial Court and the Lower Court cannot be perverse as contended by the learned counsel to the appellant. A decision is perverse when it runs counter to pleadings and evidence on record or where the Court whose finding or decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious; and by its very nature the finding or decision has occasioned a miscarriage of justice. Adimora v. Ajufo (1988) 3 NWLR (Pt.1063) 333. See Olaniyan v. Fatok (2013) 12 17 NWLR (Pt.1384) p.477 @ 492. per. IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
YERIMA MADAKI Appellant(s)
AND
1. ANTHONY CIROMA
2. BALA CIROMA
3. SAMUEL CIROMA
4. YOHANNA CIROMA
5. BATURE CIROMA
6. SANI BAGUDU Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): The appellant as the plaintiff instituted suit No.CVGS/68/2013 against the respondents as defendants at the Customary Court (the trial Court) in Gashere town of Kauru Local Government Area of Kaduna State claiming title to a parcel of land. The trial Customary Court, after hearing of the suit delivered its judgment in favour of the respondents. Dissatisfied with the judgment, the appellant (the plaintiff) appealed to the customary court of Appeal (the tower Court) in appeal No.CCA/KAD/KAF/26A/2014 vide Notice of appeal filed on the 19th of June 20L4. The Lower Court after hearing the appeal delivered its judgment on the 24/9/14 dismissing the same for lacking in merit. Peeved and Piqued by the judgment of the Lower Court, the appellant appealed to this Court vide Notice of appeal filed on the 29th of November, 2014 on there (3) grounds of appeal. The three (3) grounds of the Notice of appeal shorn of the particulars are thus:
Ground ONE
THE LOWER CUSTOMARY COURT OF APPEAL ERRED IN LAW WHEN IT HELD THAT EVALUATION OF EVIDENCE IS THE EXCLUSIVE RESERVE OF THE TRIAL COURT.
Ground TWO
THE CUSTOMARY COURT OF APPEAL KADUNA STATE ERRED IN LAW AND FACT WHEN IT HELD THAT THE FINDINGS OF THE TRAIL COURT WERE NOT PERVERSE.
Ground THREE
THE CUSTOMARY COURT OF APPEAL ERRED IN LAW AND FACT WHEN IT DISMISSED THE ENTIRE GROUNDS OF APPEAL EVEN AFTER FORMULATING ITS ISSUE FOR DETERMINANON ALONG SIDE THE ONE FORMULATED BY THE APPELLANT BEFORE IT.
The appellant’s brief of argument was filed on the 27th of February 2015. Two issues have been distilled out of the three grounds of the Notice of appeal on page 3 thereof. The issues are:
“Whether the Lower Customary Court of Appeal Kaduna was right in holding that it was only the trial Customary Court that had the exclusive jurisdiction to evaluate on matter before it and as a court of Appeal cannot re-evaluate in view of S.57 of its own law 2001.
Whether it was not the refusal of the Lower Customary Court of Appeal Kaduna State to reevaluate the evidence before the Trial Court that made it not to see anything wrong with the verdict of the Trial Court which was given ultra viresty by sacking the appellant on the land they possessed including where their houses were built to vacate with their kins and kindreds.”
The respondents’ brief of argument was filed on the 7th of April 2015 wherein a lone issue has been formulated from the grounds of the Notice of appeal on page 5 which is thus:
“Whether from the totality of the evidence adduced by the Plaintiff/Appellant in support of his claim for
declaration of title to a plot of land at Gamaldi Village Kauru Local government Area of Kaduna State and the evidence adduced by the Defendants/Respondents to support their counter claim to the same plot of land, it can be said that the lower Kaduna state customary court of Appeal was in error when it upheld the decision of the trial customary court Geshere, Kauru Local Government Area of Kaduna State”‘
The appeal came up for hearing before this Court on the 4th of February 2016 whereat J. A. Madaki Esq. of learned counsel adopted the appellant’s brief of argument and did urge the Court to allow the appeal, and set aside the judgment of the Lower Court which affirmed the judgment of the trial Court, and in consequence, set aside the judgment of the trial Court for having not be predicated on cogent evidence. For the respondents’, A. Maisamari Esq. of learned counsel urged the Court to dismiss the appeal for lacking in merit, and affirm the judgment of the Lower Court.
In resolving the issues formulated in the briefs of argument which would determine the appeal, the Court can either adopt same or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN v. OBEGOLU (2006) 18 NWLR (Pt.1010) p.188 at 225 where was held that after examining the issues for determination by the parties to an appeal, it is the duty of the Appellate court to either adopt those in the briefs of argument or formulate new ones which it believes would determine the real complaint or grievance in the appeal. See also ADAKU V. ADJEH (1994) 5 NWLR (Pt. 346) P. 582 and IKEKWUHA V. OHAWUCHIN (1996) 3 NWLR (Pt.435) P.146.
After a dispassionate analysis of the issues formulated for determination in the briefs of argument of the parties to the appeal, I do hereby adopt same for the ultimate determination of the appeal. The issues are as follows:
“Whether the Lower Customary Court of Appeal Kaduna was right in holding that it was only the trial Customary Court that had the exclusive jurisdiction to evaluate on matter before it and as a Court of Appeal cannot re-evaluate in view of s.57 of its own law 2001.
Whether it was not the refusal of the Lower Customary court of Appeal Kaduna state to reevaluate the evidence before the trial Court that made it not to see anything wrong with the verdict of the Trial Court which was given ultra viresty by Sacking the appellant on the land they possessed including where their houses were built to vacate with their kins and kindreds.”
Whether from the totality of the evidence adduced by the Plaintiff/Appellant in support of his claim for declaration of title to a plot of land at Gamaldi Village, Kauru Local Government Area of Kaduna State and the evidence adduced by the Defendants/Respondents to support their counter claim to the same plot of land, it can be said that the lower Kaduna state customary court of Appeal was in error when it upheld the decision of the trial customary court Geshere, Kauru Local Government Area of Kaduna State.
RESOLUTION OF ISSUES
Issues 1 and 2 taken together, then lastly issue 3.
ISSUE1 & 2
Issues 1 and 2 basically questioned the Lower Courts holding that it is the exclusive responsibility of a trial Court to evaluate evidence. Issue 2 deals with whether the refusal of the Lower Court to re-evaluate the evidence adduced at the trial Court did not influence its affirmation of that judgment being appealed against. Madaki Esq. submitted that the Lower Court’s holding that it could not re-evaluate the evidence on appeal because it is the exclusive responsibility of the trial Court renders the provisions of Section 57 of the Sharia and Customary Courts Law Kaduna State 2001, void and of no consequence. That by failing or refusing to re-evaluate the evidence in order to arrive at a just decision in view of the evidence per the printed record of the proceedings of the trial Court, it arrived at a decision which in perverse. That the Lower Court ought to have re-evaluated the evidence in order to arrive at a just decision which the trial Court failed to do so.
Submitting further, learned counsel contended that it is the duty of an appellate Court to re-evaluate evidence where a trial Court failed to do so, or if done, it was improperly carried out resulting in a wrong or unjustified decision. Counsel pointed out that where a decision is perverse as a result of failure to evaluate evidence or improper evaluate of evidence, an appellate Court has a duty to carried out such exercise in order to attain justice. The cases of Uwah v. Akpabio (2014) 2 SCNJ P. 285 @ 288 and Azubuike v. PDP (2014) 2 SCNJ P.46 @ 49 were cited and relied on to buttress the submissions Supra. Regarding Issue 2, counsel submitted that the Lower Court failed to reevaluate the evidence adduced before the trial Court due to its inadvertence to the provisions of Section 57 of the Sharia and Customary Law, Kaduna State 2001. That the said Law by its Section 57 empowered the Customary Court of appeal to do anything that could lead to doing justice to the parties on appeal. If the Lower Court had applied the said provisions its judgment would have been different having regard to the evidence of the parties, especially evidence of Pw2 on pages 7-9 of the printed record of appeal. Counsel further adumbrated that the Lower Court had the jurisdiction and power to set aside the perverse decision of the trial Court, however, it failed to do so because of its failure to re-evaluate the evidence and arrive at a just decision as provided for by Section 57 of the Sharia and Customary Court Law, 2001 (amended), Learned counsel did urge this Court to evaluate the evidence and accordingly arrive at a just decision which the Lower Court failed to do leading a miscarriage of justice to the appellants. Did the trial Court evaluate the evidences adduced before it in arriving at its decision. On page 26 of the printed record of appeal, the Lower Court made a summary of the facts of the case before it. On page 27 it summarised and considered the evidence of the plaintiff. On page 28 the evidence of the defendant was considered by the trial Court. On page 29 the trial Court made findings based on the evidence of the parties. Finally, on page 31 of the record of appeal the trial Court held as follows:
“From the findings and highligh9 of the established facts, any reasonable Court will definitely decide the entire issues in favour of the counter claim by the defendants.
They have by traditional mode of proving ownership of adjacent farm, traditional evidence of neighbours
to the farm land on the south and west, and numerous act of possession and dealings with the land with absolute acquiescence on the part of the plaintiff proved that the locus in quo is one and the same with the other parts and thus their own. The defendants counter claim most succeed, where the plaintiff claim fails.
Accordingly, I Mr. Ali Dauda John higher customary Court judge I sitting with Mr. Sotal Kureh member do hereby hold all the above and declare title of the locus in quo to the six defendants in this arise, and grant them possession.
The Plaintiff are ordered to vacate the locus in quo or any part thereof in their possession or alienated by
them, and to relinquish possession to the six defendants. They (Plaintiffs) must refrain from any further entry or occupation of the locus in quo henceforth.”
The appellants were dissatisfied with the judgment of the trial Court. Upon an appeal to the Lower Court, that Court, after considering the submission of learned counsel per the briefs of argument, dismissed the appeal and affirmed the judgment of the trial Courts on pages 43 to 53 of the record of appeal. Specially, Page 50-51 of the record of appeal the Lower Court said:
“We have carefully gone through the arguments to the counsel to the appellant and the respondents. The 5 grounds of appeal filed by the appellant and the entire record of proceedings of the trial court. From the 5 grounds of appeal, learned counsel to the appellant formulated only one issue for determination which is “whether the trial Court was right in its decision considering the totality of evidence before it, that this Court cannot be called to reverse same and find in favour of the appellant”
In determining this case we shall formulate another issue necessitated by counsel’s allegation that the decision of the trial Court is perverse and outrageous thereby urging this Court to re-evaluate the judgment of the trial Court as regards S. 67 of the law of this Court. Where the allegation is established an appellate Court an order a retrial.
The issue we have formulated is “whether this Court can reverse the decision of the trial Court by evaluating the evidence and finding of facts of the trial Court.’
We shall also adopt the sole issue formulated by the appellant.
Firstly, may we state that we do not find S. 67 of the laws of this Court relevant or necessary in the entire appeal. In every civil case before an appellate Court. It is trite law that evaluation of evidence is the exclusive reserve of the trial Court. A trial Court has the primary responsibility of evaluating evidence.
SCC the CASE Of ANTHONY TIPPI V. SYLVESTER NOTANI (2011) 8 NWLR (Pt.1249) pg.285 particularly at pg.288.
From the alive, it is therefore crystal clear that evaluation of evidence and finding of facts are within the exclusive preserve of the trial Court’ The Court of Appeal held in the Case of MAUN v. ABDUL (2001) 4 NWLR (Pt.702) pg.95 @ 108 – 109 paras H – D the primary responsibility of a trial court is to hear the parties, watch and observe the demeanour of the witnesses called to testify before it admits or rejects documents tendered, ascribe probative value to the evidence and come up with a decision”
We have scrutinized the entire proceedings of the trial Court. We are of the firm view that the findings of the trial court are not perverse, no unfair considerations were made based on wrong application of law and for procedure and all the findings of the trial court, are based and supported by evidence adduced before it.
Accordingly we see no reason(s) or cause to interfere with the findings of the trial Court”
Furthermore, on page s2 of the record of appeal the Lower Court said:
“In the case before this court we are of the humble view that the trial court considered all the above positively, and based on the evidence of the witnesses of plaintiff/appellant on one side and evidence of the counter claim of the defendants/respondents on the other side. The pendulum indeed titled being heavier for the defendants/respondents.
There is no doubt that the trial court properly appraised and evaluated the evidence of the parties. We concur entirely with the respondent’s counsel on all grounds in this appeal. We cannot fault the reasoning of the trial Judge.”
Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. Any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluating evidence does not stop with assessing the credibility of witnesses, although in appropriate cases, it is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing evidence seeks that the trial Court should make.
The law is trite, where a trial Court has had evaluated the evidence adduced by the parties in reaching a decision, an appellate Court cannot interfere or disturb such exercise or judicial duty unless it can be established that such exercise of judicial duty has not been properly carried out, or if carried out, not properly done or in violation of settled principles of law. In Ike v. State (2001) 14 NWLR (Pt.723) P. 221 at 255, the Supreme Court, per IGUH J.S.C posited the law thus:
“It cannot be over-emphasized that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the Court of trial which saw heard and assessed the witnesses as they testified in the witness box. See Akinliye and another v Eyiyola and another (1968) NMLR 92 at 95; Woluchem v Gudi (1981) 5 SC 291 at 320 etc. It is only where an appellate Court is in as good a position as the trial Court to evaluate evidence which has been given in a case, such as where the issue is essentially a matter of inference that can be drawn from proved facts, not resting on the credibility of witnesses as a result of their demeanor in the witness box or of the impression of them by the trial Court that it must not hesitate to do so. See Okafor v Idigo III (1984) 6 SC 1 at 36; The Registered Trustees of the Apostolic Faith Mission and Another v James and Another (1987) 2 NWLR (Pt.67) 556 at 567.
GALADIMA J.S.C. put it in these words in the case of Haruna vs. A. G. Evaluation (2012) 9 NWLR (Pt.1306) P. 419 at 439 – 440
“It is trite principle of law that an appellate Court should loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. It is only when the issue at stake is narrowed down to only the inference in the drawn from proved facts without going into the rigour of determination credibility that the appellate court could rightly intervene to re-evaluate evidence. The appellants argument is that the court ought to have re-evaluated the evidence without restricting itself to inference that could be drawn to already established facts. He also queried the credibility of witnesses called and evidence tendered. All these are clearly outside the allowed purview within which the Court below could re-evaluate the evidence already evaluated by a trial Court”‘
In Rasaki v, State (2011) 16 NWLR (Pt.1273) P.251 @ 303, this Court had this to say:
A trial court being the master of the facts must base its inferences, evaluation or assessment and findings on the available evidence adduced before it. Its findings must not be premised on extraneous facts outside the evidence given at the trial. Once a trial court has properly evaluated and made correct findings on the evidence led before it, an appellate Court will be reluctant to disturb such findings unless such findings are shown to be erroneous or perverse. Where such findings are shown to be erroneous or perverse, an appellate court has the power or vires to deduce or reassess those findings of the trial Court as borne out by the record. It is the duty of the appeal court to show that the findings of the trial Court perverse.”
The Law is settled, an appellate Court is always reluctant to interfere with or disturb the evaluation of evidence and ascription of quality to such evidence, unless there exist the following:
(a) Where there is a failure on the part of the trial Court to make proper use of its opportunity or advantage and thereby arrived at a perverse decision especially where the said decision was not based on the credibility of the witnesses; or
(b) Where the trial Court fails to make finding of fact 9n a material or important issue or issues canvassed before it by the parties in its evaluation of evidence; or
(c) Where the trial Court gives an unfair treatment on the evidence of the parties before it.
See NEPA v. Archida (2006) 7 NWLR (Pt.979) P.245 at 272.
The trial Court, on pages 27-3t of printed record of appeal gave a dispassionate consideration to the evidence of the plaintiff and the defendants, before arriving at its decision. On appeal to the Lower Court, that Court also considered the evidence on the record before it and in affirming the judgment of the trial Court took into consideration the evidence adduced at the trial Court. Section 57 of the Law establishing Sharia and Customary Courts in Kaduna 2001 (amended) provides thus:
“In the exercise of its appellate jurisdiction in civil matters under the law, an appellate Court May:
“(a). Whether after hearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is taken and may make such order as the Court of the first instance could have made in such cause or matter as it shall consider the justice of the case require;
(b). Quash any proceedings and there upon, where it is considered desirable, order any such Cause or matter to be heard de novo before the Court of first instance or before any appropriate court, provided that no additional summons fee shall be paid.
The contention of Madaki Esq, learned counsel to the appellant that the Lower Court failed to or neglected to re-evaluate the evidences on appeal in order to arrive at a just decision which the trial Court failed to do cannot be justified as earlier demonstrated in this judgment. The evaluation and reevaluate of the evidence by the trial Court and the Lower Court may not be at its best, but what is important is the consideration of the evidence of both parties and ascribing probative value thereto in arriving at a decision. In my view, both the trial Court and the Lower Court satisfactorily performed the duty expect of them in evaluating and re-evaluation of the evidence adduce by the parties before arriving at a just decision. The decision of the trial Court and the Lower Court cannot be perverse as contended by the learned counsel to the appellant. A decision is perverse when it runs counter to pleadings and evidence on record or where the Court whose finding or decision is being reviewed is shown to have taken into account matters which it ought not to have taken into account or shut its eyes to the obvious; and by its very nature the finding or decision has occasioned a miscarriage of justice. Adimora v. Ajufo (1988) 3 NWLR (Pt.1063) 333.
See Olaniyan v. Fatok (2013) 12 17 NWLR (Pt.1384) p.477 @ 492,
Issues 1 and 2 are hereby resolved against the appellant’
Issue 3
Was the Lower Court in error when it affirmed the decision of the trial Court in dismissing the claims of the appellant as plaintiff. Maisamari Esq., of learned counsel to the respondent drew the attention of the court to the five (5) ways or modes of proving title to land as enunciated in the cases of Olukoya v. Ashiru (2005) 5 SCNJ P.107 @ 116 and Nwabuoku v. Onwordi (2006) 5 SCNJ p. 3sg @ 369, and submitted that the respondents had adduced cogent and credible evidence to warrant the judgment of the trial court, (which was affirmed by the Lower Court) in their favour. That the evidence of the respondents by far out-weighed the evidence adduced by the appellant. Counsel contended that where the evidence of the plaintiff have been found to be unreliable, the court can rely on the credible evidence of the defendant to enter judgment accordingly. The case of Atanda v. Iliyasu (2013) 6 NWLR (Pt.1351) P.529 @ 553 cited to reinforce the submissions supra.
On the findings of facts and decision arrived at by two (2) Lower Courts, learned counsel did contended that ordinarily an appellant should not disturb or tamper with same unless there are good reasons to do so. The case of Echerre v. Ezirike (2006) 5 SCNJ P.170 @ 179 cited to buttress the submissions Supra. Concluding, learned counsel urged the Court to resolve issue 3 against the appellant and dismiss the appeal for lacking in merit.
On pages 27 to 31 of the record of appeal, the trial Court did consider and evaluate the evidence of the parties before it in arriving at its decision that the appellant did not adduce credible evidence to support his claim of title to the disputed parcel of land. On the other hand, the Court found that the respondents’ evidence was cogent and credible which warrant the delivery of judgment in their favour. The Lower Court in affirming the decision of the trial Customary Court held thus:
“We have scrutinized the entire proceedings of the trial court. We are of the firm view that the findings of the trial court are not perverse, no unfair considerations were made based on wrong application of the raw and/or procedure and all the findings of the trial court, are based and supported by the evidence adduced before it”.
The law is trite, an appellate Court should not disturb or interfere with the findings of fact evaluation of evidences thereby and decisions arrived thereby, unless there are good reasons to do so. Katsina-Alu J.S.C (as he then was) dealing with finding of fact, evaluation of evidence by Lower Courts and when an appellate Court can interfere with same had this to say in the case of Echere v. Ezirike (2006) 5 SCNJ (P. 170 @ 179:
“The principles upon which appellate court will interfere with the findings of a trial Court have been laid down in numerous cases. An appellate Court will not and must not reverse a finding of fad made by a trial court unless such finding is not supported by the evidence and it is perverse.
The Lower Court on page 52 of the printed record of appeal, after reviewing and evaluating the evidence adduced before the trial Court arrived at the following decision:
“In the case before this court we are of the humble view that the trial court considered all the above positively, and based on the evidence of the witnesses of plaintiff/appellant on one side and evidence of the counter claim of the defendants/respondents on the other side. The pendulum indeed tilted being heavier for the defendants/respondents. There is no doubt that the trial court properly appraised and evaluated the evidence of the parties.
We concur entirety with the respondent’s counsel on all grounds in this appeal. We cannot fault the reasoning of the trial Judge.”
The Lower Court was therefore not in error when it affirmed the decision of the trial court which is on page 31 0f the record of appeal to effect that:
“From the findings and highlights of the established facts, any reasonable court will definitely decide the entitle issues in favour of the counter claim by the defendants. They have by traditional mode of proving ownership of adjacent farm, traditional evidence of neighbors to the farm land on the south and west, and numerous act of possession and dealings with the land with absolute acquiescence on the pit of the plaintiff proved that the locus in quo is one and the same with the other parts and thus their own. The defendants counter claim most succeed, where the Plaintiff claim fails.
Accordingly I Mr. Ali Dauda John Higher customary court Judge I sitting with Mr. Sotal Kureh member do hereby hold all the above and declare title of the locus in quo to the six defendants in this case, and grant them possession.
The plaintiff are ordered to vacate the locus in quo or any part thereof in their possession or alienated by them, and to relinquish possession to the six defendants. They (plaintiffs) must refrain from any further entry or occupation of the locus in quo henceforth.”
In the result, I resolve issue 3 positively, that is, the Lower Court was not in error in affirming the decision of the trial Court. Having resolved all the 3 issues against the appellant, the appeal fails. Same is dismissed. The judgment of the Lower Court in Appeal No.CCA/KAD/KAF/26A/2014, delivered on the 24th of September, 2014, is hereby affirmed. The respondents are entitled to costs, assessed at N30,000.00. Same is awarded to them jointly.
UWANI MUSA ABBA AJI, J.C.A.: I read in draft the judgment of my learned brother, Ibrahim S. Bdliya, JCA, I agree with the reasoning and conclusions reached therein that the appeal is devoid of any merit and have nothing useful to add.
I too, for the reasons therein stated found no merit in this appeal and it is also dismissed by me. The judgment of the Lower Court in appeal No. CCA/KDA/KAF/26A/2014 is hereby affirmed.
I abide by the order made therein including orders as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: An appellate Court will not interfere with the judgment of a Lower Court unless:
1. It is shown that the decision is perverse; or
2. That it is not based on a proper appraisal of the evidence; or
3. There is a misapplication of the law to findings of fact properly made; or
4. That there has been a miscarriage of justice occasioned by an error in procedural or substantive law.
See Oleksandr v LoneStar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B – C per Kekere-Ekun JSC.
The decision of the Lower Court not being perverse as ably shown by my learned brother Ibrahim Shata Bdliya JCA in the lead judgment, I am in agreement that there is no merit in this appeal. The appeal is accordingly dismissed with costs of N30,000, as awarded, to the Respondents.
Appearances
Jacob A. Madaki, Esq.For Appellant
AND
Auta Maisamari, Esq.For Respondent
