Aidoko Onuche V. Sule Anyegwu & Anor (2000)
LawGlobal-Hub Lead Judgment Report
ZAINAB ADAMU BULKACHUWA, J.C.A.
T
his case was first initiated before the civil Upper Area Court Idah by the appellant where he was “seeking court assistance to restrain the defendant from further collection of my stool land tributes called Ogbajele”. At the end of the case, the majority decision found for the respondent. On consideration of the record of the case, the inspector of Area Courts referred the case to the High Court for review. After the review by the High Court sitting on its appellate jurisdiction, a re-trial de novo was ordered before a differently constituted Upper Area Court.
Before the newly constituted Upper Area Court Idah, the claim of the appellant was still “seeking court assistance to restrain the defendant from further collection of my stool land tributes called Ogbajele”.
The court heard witnesses and visited the locus in quo and at the end of the trial there was a split decision with the majority entering judgment for the appellant. The respondent appealed to the High Court, Kogi State sitting in its appellate jurisdiction at Idah. The High Court overturned the decision of the trial court and gave judgment to the respondent.
The appellant, being dissatisfied with the said judgment, has now appealed to this court on three grounds of appeal. These shorn of their particulars are produced below:
1. The learned Judges of the High Court Idah, erred in law in finding that the trial upper area court’s failure to accord probative value to Exhibit 1 has occasioned miscarriage of justice when the deprivation of Exhibit 1 of probative value was based upon inter alia, what the trial upper area court’s eyes saw during the visit to the locus in quo as well as what that court heard during the trial.
2. The learned Judges of the High Court erred in law when they held that it found no explanation from appellant as to how the latter came to control Ogbajele land the grant to appellant of which appellant again failed to prove.
3. The learned Judge of the High Court Idah erred in law in declaring ownership in respondent despite the existence of Exhibit 1 with its shortcomings and further in the light of Igala Native Law and custom (not shown to be repugnant to natural justice, equity and good conscience) and the Land Use Act 1978 which both only recognise right of occupancy which appellant had, he having been in possession of the land for a long time, and when the issue in dispute really is about right of occupancy.
As is the practice in this court, parties filed and exchanged their briefs each having obtained the leave of this court for extension of time within which to file their respective briefs.
The appellant in his brief of argument identified 3 issues for determination to wit:
1. Whether the High Court was right to hold that the failure to ascribe ‘desired’ probative value to Exhibit 1, in light of or inspite of the evidence before the trial court including the visit to the locus in quo has occasioned a miscarriage of justice?.
2. Whether the High Court was right in its findings/conclusions that, appellant proffered ‘no explanation’ as to how he came to control Ogbajele land as well as how he came about the grant to him of Ogbajele land?.
3. Whether the High Court was right in determining ownership of Ogbajele in respondents in light of defects in Exhibit 1 as well as enunciations of statute law and Igala Native Law and Custom when the real issue in dispute is about right of occupancy.
The respondent raised 2 issues in his brief, these issues are:-
1. Is the High Court (Appeal Division) correct or right in ascribing to Exhibit 1 high probative value?
2. Did the plaintiff/appellant establish his title to the said land?
As the determination of the issues raised by the appellant will also determine the issues raised by the respondent I will determine this appeal on the issues as raised by the appellant.
Issue 1
It was the appellants contention that, it was the lower courts complain that there was failure by the trial upper area court to accord ‘due weight’ or the desired probative value to Exhibit 1 submitting that the ‘due’ or ‘desired’ weight or probative value should be measured from the eyes or with the scales of the trial upper area court not those of the appellate High Court. That it is the duty of a trial court who has the opportunity of seeing, hearing and assessing witnesses to give probative value to evidence adduced before it. And a finding of fact by a trial court must be accepted by an appellate court unless shown to be perverse or unsound relying on the case of Kojo II v. Bonsie 14 WACA 242; Ebba v. Ogodo (1984) 1 SCNLR 372; Kisiedu v. Dumprey 2 WACA 208; Kuma v. Kuma 5 WACA 4; Onalo v. Aguda (1997) 10 NWLR (pt.526) 540. That the same principle applies to the trial court’s assessment of probative value to documents tendered as Exhibits before it.
The appellant further contended that the finding of the lower court derived from the evidence of the 2nd defendant who tendered Exhibit 1 established the following facts:
1. That there had been a dispute in relation to Ogbajele land or part of it as far back as 1957;
2. That the person who maintained that action as plaintiff was a member of the respondent before the lower court;
3. That the action covered by Exhibit 1 was maintained ostensibly to protect the interest of the Unana as well as members of Idi’s family who controlled the land as Caretaker for Unana.
And in the view of the lower court failure to accord the above desired probative value to Exhibit 1 occasioned a miscarriage of justice.
Submitting on that, that the implication of the above finding is that Exhibit 1 should act as res judicata against the appellant, but pointing out that Exhibit 1 has failed of all res judicata tests. Nor was there any evidence from the records to show that the action in Exhibit 1 was to protect the interest of members of Idi’s family who controlled the land as Caretakers Unana.
That the finding of the trial Court on Exhibit 1 at page 102 of the records shows the following:
1. Exhibit 1 did not contain specific land.
2. Exhibit 1 has no boundaries nor certainty of the land on which the palm fruits were disputed;
3. Plaintiff/appellant denied knowledge of the suit in Exhibit 1;
4. Idi Akani the plaintiff in Exhibit 1 had children in court (i.e. Ojomaje Akani) who were not called to testify on the existence of Exhibit 1;
5. Consequently, no probative value could be attached to Exhibit 1.
It is further submitted by the appellant that Exhibit 1 does not satisfy the conditions of estoppel per rem judicata. That the parties in Exhibit 1 and this appeal are not the same, the cause of action and the subject-matter are also not the same. That the trial Court having found Exhibit 1 unreliable, the lower court should have found the evidence as worthless deserving no consideration.
On this issue, it was argued for the respondent that the trial Court has no advantage over the appellate court on the examination and evaluation of Exhibit 1, that examination and evaluation of Exhibit 1 is not the same as examination and evaluation of witnesses.
Relying on the case of Olatunji v. Adisa (1995) 5 NWLR (Pt.397) 586; (1995) 2 SCNJ 90 – where it was held that an appellate court can make inferences from the evidence adduced as the trial Court if it is of the view that the findings made by the trial Court are wrong.
That DW2 in his evidence stated that, the plaintiff in Exhibit 1 was a descendant of the respondent in this appeal and also the Caretaker of the land in dispute, and goes to confirm that the respondent is the same party as the plaintiff in Exhibit 1, that the subject-matter in this appeal and that in Exhibit 1 is the same.
Having briefly reviewed the submission of learned counsel on the points canvassed, I think the main issue to determine here is whether from the evidence and the findings of the trial Court, the appellate court or the court below was right to have intervened.
The appellant who was the plaintiff before the trial Court initiated the case on a re-trial Order where his cause of action at page 7 of the records was:
“Seeking court assistance to restrain the defendant for further collecting of my stool land tributes called Ogbajele.”
The two defendants (present respondents) denied liability. The appellant testified to the effect that he owned the land in question as it was given to his clan by Ayegba-Oma-Idoko as one time Attah of Igala and the land had been with their clan since then and his ancestors were buried there and he has a shrine on the land.
That one of his predecessors Idakwoji entrusted the land to the 1st defendant who was paying tribute to the appellant hence the action. PW1 and PW3 shared common boundaries with the appellant and testified in line with his evidence. The PW2 is the son of Idakwoji and testified that the land was given to the 1st defendant being a female descendant to farm on it and was paying tribute to his father.
The 1st defendant in his testimony said, he got the land from Idi Akani, and it originally belonged to Unana Attah and paid tribute to Idi annually. That when Idi died the land reverted to the 2nd defendant the present Unana Attah. The 2nd defendant said he derived his title from his grandfather who first settled on the land.
That in 1957 Idi Akani was the Caretaker of the land for Ata-Amana who was then the Unana-Attah. That in a previous suit between Idi and Abuka the case was decided in favour of Idi as the owner of the land. He tendered the records of that suit as Exhibit I. He denied that the land was given to the appellant’s grandfather by the Attah.
DW1 a brother to the 1st defendant said he farmed on the land and it was given to him by Idi. That when Idi died the 2nd defendant became the New Unana Attah and they collect tribute for the 2nd defendant from those who farmed on the land. That they were never challenged by the appellant for doing so.
The DW2 is the Attah Igala who said after he beaded the 2nd defendant as Unana-Auah he gave him part of the land at Okpachala and Ogbajele.
The court then visited the land in dispute and identified all the borders, and in a well considered judgment after analysing all evidence before it found for the plaintiff in the following words:
“In the sum total the plaintiff was able to prove more than one root of title to Ogbajele family land in dispute and we have no hesitation to give him the judgment. There is no merit in the defence case. We are satisfied that the plaintiff have (sic) proved his case on the balance of probabilities as required by law. We therefore enter judgment for the plaintiff.”
On appeal before the Kogi State High Court on its appellate jurisdiction, the court reassessed the evidence, set aside the decision of the trial court and dismissed the appellant’s claim one of its reasons being that the failure of the trial court to accord probative value to Exhibit 1 has occasioned a miscarriage of justice.
Miscarriage of justice has been defined by the Supreme Court in the case of Total Nigeria Ltd. & Anor v. Wilfred Nwako & Anor (1978) 5 SC 1 as:
“Such a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all”.
-Nnajifor v. Ukonu (1986) 4 NWLR (Pt.36) 505, The State v. Ajie (2000) 11 NWLR (Pt.678) 434; (2000) 8 WRN 1.
To my mind, the decision of the trial Court does not fall under that definition. There was proper assessment and evaluation of the evidence by the trial court. It was not the duty of the appellate court to re-evaluate and re-assess what has all ready been evaluated.
The duty of evaluating and appraising evidence belongs to the trial court that saw and heard the witnesses, and an appellate court may not disturb a finding or conclusion in ajudgment simply because it would have come to different finding or conclusions on the facts of the case. Woluchem v. Gudi (1981) 5 SC 291 at 326.
In the instant case, all that is before the court below is the cold printed record, without the benefit of watching the demeanor of the witnesses, the court cannot embark on a re-evaluation of the evidence or ascription of other probative value to the evidence adduced as to arrive at a different conclusion from the one arrived at by the trial court. Thus, unless found to be perverse or where wrong inferences have been raised or drawn from accepted facts or that wrong principles have been applied to facts, the appellate court has no business in interfering with findings of facts of a trial Court and substituting it with their own. Ebba v. Ogodo 1 SCNLR 372. Ibodo v. Enarofia (1980) 5 SC 42.
The issue must therefore be resolved in favour of the appellant and I so hold.
The reasoning giving in answer to issue one is applicable to issue two. All arguments on that issue refer to the assessment and re-evaluation of the evidence as adduced at the trial court below.
I will still reiterate here what I said earlier that it is not the duty of appellant court to interfere with findings of a trial court unless the findings are found to be perverse or unsound. The trial Court below was thorough in evaluating what was before it as evidence and the Court below was wrong to have interfered with the findings of fact by the trial Court – Ebba v. Ogodo (supra).
I will therefore also resolve the 2nd issue in favour of the appellant.
The 3rd issue, with all due respect to the learned counsel to the appellant, is not a reflection of the conclusion arrived at by the court below at page 120 of the records which reads:
“In effect this appeal succeeds and we set aside the majority decision of the upper area court, Idah in suit No. CV.54/91 handed out on 24th day October, 1997 and in its place we substitute this judgment dismissing the case of the respondent as plaintiff before the trial court.”
From the above, the lower court only dismissed what the appellant claimed from the trial court. It did not confer title of the land in dispute on the respondents. In the circumstances, the 3rd issue which misconstrued the finding of the lower court is irrelevant to the appeal and it is hereby struck out with all arguments based on it. Agbaka & Ors v. Amadi & Ors (1998) 11 NWLR (pt.572) 16; (1998) 7 SCNJ 367.
On the totality of the foregoing, I am of the view that the Idah High Court sitting in its appellate jurisdiction was wrong to have re-evaluated the evidence as adduced before the trial Court. This appeal must succeed and I so hold. I set aside the judgment of the Idah High Court delivered on 12th day of February, 1998 and affirm the majority decision of the Idah upper area court delivered on the 24th day of October, 1997.
I award costs assessed at N5,000 (Five Thousand Naira) in this court and N1,000.00 (One Thousand Naira) in the court below to the appellant.
Other Citations: (2000)LCN/0929(CA)
