Alhaji Asifat Akanbi V. Gbemisoye Oyewale & Anor. (2008)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
The Plaintiff in the lower court and Appellant, Alhaji Buhari Akande after his demise was substituted, following the leave of court sought and granted Alhaji Asifat Akanbi, now the appellant. The reliefs sought by the Appellant as Plaintiff for himself and on behalf of the Baale Ibapon Family, Ogbomoso as shown in paragraph 27(a), (b) and (c) of the Amended Statement of Claim, are as follows:
“(a) A declaration that the Defendants are customary tenants of the Plaintiff’s family is (sic) Baale Ibapon Family in respect of the farm/and situate, lying and being at Ibapon via Ogbomoso.
(b) A forfeiture of the defendants’ right to occupy and use the said piece or parcel of land in dispute for on the ground of denial of the rights of the Plaintiff and the refusal by the Defendants to pay tribute to the Plaintiff’s family, as their over lord despite repeated demands.
(c) The recovery of possession of the said farm land by the Plaintiff from the Defendants and arrears of customary tribute from the Defendants up to the day of judgment.”
In response the Respondents as defendants filed their statement of defence and counter-claim as contained in their further amended statement of defence to which the appellant filed a Reply. Evidence was called by both parties and Exhibits tendered, which included survey plans. The then plaintiff tendered Exhibit ‘E’ which encompassed the one tendered by the respondents, Exhibit ‘F’.
The Appellant’s case is that the land shown in Exhibit ‘E’ was granted to his family absolutely for spiritual services rendered to the Oba Onpetu Asamu. While the Respondents claimed that the land in dispute which is contained in Exhibit ‘E’ and Exhibit ‘F’ was equally granted to their family by the Oba Onpetu Asamu subject to the payment of Ishakole, and that the Plaintiff’s land was granted to one Lakoso, which the defendants claimed to be the ancestors of the plaintiff/appellant.
In the judgment, the learned trial judge found that the appellant and respondent were both granted their land by Onpetu Asamu, as such that the appellant could not claim to be overlord of the Respondents, thus preferring the evidence of the respondents to that of the appellant. The learned trial judge dismissed the plaintiff/appellant’s case. No order was made in respect of the counterclaim of the respondents as no evidence was led in its support and deemed abandoned.
The appellant being dissatisfied with the decision originally filed three (3) grounds of appeal, with the leave of court flied six (6) additional grounds of appeal. The appellant formulated three (3) issues for determination, they are:
“i. Whether from the pleadings and evidence led at the trial; a plea of issue estoppels in the light of Exhibit ‘A’ ‘B’, ‘C’ and ‘D’ tendered could have sustained the plaintiff/appellant’s case at the trial.
ii. Whether the trial court was right in law when it failed to properly assess the evidence of PW6 Gabriel Oke, and PW7 OrodokunAlagbe, vis-a-vis, DW3 Ayanlude Akande testimony and treated DW3 evidence as that of the PW7 Orodokun Alagbe.
iii. Whether the trial court properly evaluated and appraised the totality of the evidence of the Plaintiff witnesses when juxtaposed with that of the Defendants witnesses at all or adequately on all the issues submitted for adjudication particularly the issue whether the plaintiff family (now appellant) are descendant of Lakoso as claimed by the Defendants and James Okewole DW2 the Onpetu Asamu Mogaji and if not what is the general effect of his evidence in the light of Exhibit ‘B’ and the conclusion reached by the learned trial judge.
The Respondents formulated two issues for determination.
“1. Whether pleadings and evidence before the trial (sic) could be used to construe Exhibit ‘A’, ‘B ‘, ‘C’ and ‘D’ to sustain a plea of issue estoppel as opposed to the contents of those documents.
- Whether plaintiff’s claims could be sustained having regard to the facts before the trial court”
The learned counsel for the appellant, Olugbenga E. Ogunniran Esq in his brief of argument submitted on Issue one, which arose from grounds 1 and 2 of the appellant’s Further Amended Notice of Appeal that the learned trial judge failed to consider Exhibits ‘A’, ‘C’ and ‘D’ said to be previous judgments between the Appellant and the Respondents’ privies. Exhibit ‘A’ is the judgment in Suit No. HOS/2/77 decided in Osogbo which DW3 Ayanlude Akande admitted that the land in the present suit and Exhibit ‘A’ are the same (page 144 lines 17 to 20 of the records), similarly the evidence of DW4 Adegbola Ojo (at page 145, lines 8 to 14).
The appellant argued that the respondents appealed against the decision in Suit No. HOS/2/77, Exhibit ‘A’ in Suit No. CA/I/89/92 Chief Oyewale Alagbe & Ors vs. Alhaji Buhari Akande & Ors, Exhibit ‘D’, the said appeal was dismissed. Learned counsel for the appellant argued that the evidence of DW3 and DW4 made it clear that the land in dispute is the same as the one litigated upon by the parties or their privies in Exhibit ‘A’, The appellant’s learned counsel argued that where parties or their privies have litigated over the same land the issue cannot be reopened in a subsequent litigation. The previous suit would constitute estoppel, he cited and relied on the case of Alhaii Lasisi Otaoo & Ors v. Zacheus Faleye & Drs (1995) 2 SCNJ, 195 and the case of Chief Timothy Agbaka & Drs v. Chief Jeremiah Amadi & Ors (1998) 7 SCNJ 367 at 381. Also Fadiora v. Gbadebo (1978) 3 SC 219, Cardosov. Daniel (1986) 2 NWLR (Pt 201) 1, Aruba v. Aiyeleru (1993) 3 NWLR (Pt 280) 126, Ladeja & Ors v. Durosinmi & Ors 1978} 3 and Dr Olawale Alakija & Ors v. Alhaii Abdulai (1998) 5 SCNJ, 1.
Learned appellant’s counsel argued that Exhibits ‘A’ and ‘D’ constitute issue estoppel and, that the learned trial judge was wrong to have dismissed the claim of the plaintiff/appellant, he urged this court to resolve issue 1 in the appellant’s favour and hold that Exhibit ‘A’ and ‘D’ constitute issue estoppel.
Issue 2 arose from grounds 3, 4 and 7 of the Further Amended Notice of Appeal. The learned appellant’s counsel in his brief argued that the learned trial judge did not properly evaluate the evidence of PW 6 (Gabriel Oke) and PW7 (Orodokun Alagbe) when assessed alongside the evidence of DW3 (Ayanlude Akande). He argued that the learned trial judge attributed the evidence of DW3 to PW7, in that the DW3 gave evidence that he is a member of the defendants/respondents’ family under cross examination and at the same time earlier said he was a tenant to the respondent’s family and had been paying Ishakole annually for land granted his father for farming purposes by Baale Ibapon family.
He argued that the trial court having failed to properly evaluate the evidence of PW7, this court should reverse the conclusion reached by the trial judge and substitute its own view to that of the trial court and cited and relied on the case of Commission for Works & Housing v. Lababedi (1977) 11-12 SC 15, P. 24-25; also Oladehin v. Continental ile Mills Ltd (1978) 2 SC 23 P. 32; Akibu v. Opaleye & anor (1974) 11 SC 189. P. 203, Anyaegbu v. Hussaini (2001) FWLR Pt 54 page 247; Salako v. Dosunmu (1997) 7 SCNJ 278; Umesie v. Onuaguluchi (1995) 12 SCNK, 120 and Musa v. Yerima 1997) 7 SCNJ 109. Learned counsel submitted that this court should reverse any findings of facts that is not consistent with facts disclosed by evidence and relied on the case of Bisiriyu Agbomeji v. Liadi Bakare & Ors (1987) 7 SCNJ 33.
Further that the learned trial judge mixed up the evidence of PW3 Gabriel Oke, in referring to the witness as PW6, therefore improperly evaluated his evidence and arrived at a wrong conclusion which cannot be supported by evidence on record, for instance that the evidence of the witness as to the learning of Ifa Oracle from the 2nd Defendant and how the 2nd Defendant came to the plaintiff’s land was not controverted in anyway, by denial in evidence or pleadings and yet the learned trial judge disbelieved him, he relied on the case of Bisiriyu Agbomeji (supra). He urged this court to resolve issue 2 in favour of the appellant and hold that the learned trial judge did not properly evaluate the evidence adduced before him.
Issue 3 arose from grounds 5, 6, 8 and 9 of the further amended notice of appeal. The learned appellant’s counsel in his brief argued that the evidence of Mogaji Onpetu, DW2, the evidence of the defendants/respondents DW7 and DW8 on the traditional history of the plaintiff/appellant were inconsistent. He argued that Exhibit ‘B’ had shown that Lakoso and the Appellant are not of the same family and yet the learned trial judge held that the evidence of DW2 was helpful to the case of the defence and rejected the evidence of the plaintiff/appellant.
The learned appellant’s counsel disagreed with the DW2 Mogaji Onpetu Ashamu’s contention that Onpetu granted land to Lakoso and Adenekan (ancestors of the plaintiff and the defendants) in view of the contents of Exhibits ‘A’ and ‘B’. He urged this court to treat the evidence of DW2, DW7 and DW8 on the traditional history of how the plaintiff’s ancestors’ came to the land as unreliable and contradictory bearing in mind the contents of Exhibit ‘B’ and the fact that Onpetu family did not grant the land to both plaintiff’s and defendants’ families. The appellant contended that Lakoso and the Defendants are his family tenants and that they pay Ishakole, annual tribute to his family and led evidence as to what was paid to his family by the defendants.
That it was wrong for the trial judge to have concluded that the appellant’s and defendants’ root of title is the same from Onpetu Ashamu. (Page 141, paragraphs 3 and 4 of the records.)
The learned appellant’s counsel argued that where a trial court fails to make proper use of the evidence on record, that this court would be justified to tamper with the evidence and cited the case of Adeyeru v. Okobi (19971 6 SCNJ 67. He argued that DW2 as the Mogaji Onpetu and representative of Onpetu that he claimed to be, he ought to have been aware of any dispute as to title over their family land, which in this case DW2 did not know about Exhibit ‘H’, Suit No. HOG/3/87 and Suit No. HOS/59/80, Exhibit ‘B’. He urged this court to treat as unreasonable the contradictory evidence of the DW2, DW7 and DW8. Further that apart from Exhibit ‘B’ which is proof that the plaintiff’s family owns the adjacent land, in Exhibit ‘H’, HOG/3/87 a suit between Alhaji Buhari Akande v. Oba Y.M. Atobatele & 2 Ors, the 1st Defendant in that suit, DW2, Oyebanji Olorode and the DW3 Chief Joseph Afolabi conceded that the present 1st respondent (1st defendant in the trial court) is a tenant to the appellant (page 6 paragraph 2 of Exhibit ‘H’)
Further that in Exhibit ‘A’ that the plaintiff/appellant were adjudged the owners of the land in dispute therein and the land claimed to belong to Alakoso family in Exhibit ‘B’ was declared to be that of the plaintiff/appellant is proof of ownership of adjoining lands, that the PW3 Gabriel Oke, PW6 Orodokun Alagbe testified that they were co-tenants with the defendant/respondents was not discredited by the defendants/respondents under cross examination or in their defence. He argued that the trial court did not consider these pieces of evidence in the judgment.
Finally that the appellant’s proof of traditional history and proof of ownership of adjacent and adjoining lands is more probable, learned counsel urged this court to hold that what is true of the adjoining lands of PW3 and PW6, and the land in Exhibit ‘N and ‘6’ is true of all the lands in the area and resolve issue No.3 in favour of the appellant.
Learned counsel for the respondent, Mr. Ayoola Ajayi submitted in his brief of argument that in Exhibit ‘A’ and ‘0’, the plaintiff sued for trespass and injunction In respect of land at Owolanke village. That in Exhibit ‘A’, it was held that the family of Owolanke was in possession with permission from the plaintiffs, and stressed that the appellant did not counter claim for title in Exhibit ‘A’, That in Exhibit ‘D’ that the Court of Appeal confirmed possession of the land in dispute in Exhibit ‘A’ to be with the Owolanke family.
The respondents’ brief of argument put the identity of the land in dispute in issue. The learned counsel argued that a document must speak for itself and that evidence cannot be used to construe a document, and relied on the case of Ezeakabekwe v. Emenika (1998) 9 SCNJ 158, also Idowu v. The State (1998) 9 SCNJ 40 and UBA v. Nwaokolo (1995) 4 SCNJ 93. He argued that the land in dispute is not the same as the land in Exhibit ‘A’.
The learned respondents’ counsel submitted that Exhibits ‘A’ and ‘D’ did not constitute issue estoppel as to ownership or possession of the land now in dispute and gave the following reasons:
a. The land in dispute in Exhibit ‘A’ and ‘D’ were different from the land in dispute herein.
b. Exhibit ‘A’ and ‘D’ did not vest title of the land then in dispute on the appellants who did not counter claim in that case.
c. The issue that was decided in Exhibits ‘A’ and ‘D’ was that respondents herein could not sue in trespass because they were not in possession of the land then in dispute as Owolanke family were in possession of the said land with present respondents’ permission.
Learned counsel cited and relied on the case of Salami v. Gbodoolu, (1997) 4 SCNJ 196, in that the plaintiff/appellant cannot claim title to the land in dispute vide Exhibit ‘A’ and ‘D’, not having proved his title to same.
The learned respondent’s counsel in his brief argued that the plaintiffs needed to have proved that they were owners of the land in dispute before they could seek for the reliefs in their claim, which burden was not discharged, See Obawole v. Williams (1996) 12 SCNJ 415.
Further that the plaintiff/appellant neither pleaded nor gave evidence as to how Oba Ashamu (his ancestor’s grantor) became owner of the land, failure of which is fatal to their case and relied on the case of Paul v Ozokpo (1995) 4 SCNJ 119, also Ibenya v. Aguni (1998) 9 SCNJ 13, and Adeshaye v. Olowolagba (1996) 12 SCNJ 95 to establish the need for the plaintiff to plead and prove his root of title. He argued that in paragraph 5 of the amended statement of claim the plaintiff pleaded that Onpetu Ashamu granted the land in dispute to the appellant’s ancestor Shuaib absolutely, and the Plaintiff as PW8 at page 125 of the records also stated that Ashamu gave the land absolutely under customary law, the learned respondents’ counsel argued that the appellant’s case as plaintiff should not be believed or relied upon in that the idea of alienation of land was foreign to native idea and cited Lewis v. Bankole (1908) NLR 81, Okiji v Adejobi (1960) 5 FSC 44 and Obosi v. Oti (1967) NMLR 74.
He argued that if Onpetu Ashamu gave land to the plaintiff/appellant’s ancestors it should have been to public knowledge since dealings in land customarily require publicity and that transfer of title is usually done in a ceremony. He argued that the handing over of possession is usually done ceremonially and in the presence of witnesses and cited Cole v. Falami (1956) 1 FSC 66 and Enisoro v. Owokoniran (1967) NMLR 479. Finally on this point, that the plaintiff failed to prove the grant of the land in dispute by Onpetu Ashamu to the plaintiff/appellant’s ancestor, Shuaib.
On the other hand that the Defendants pleaded how Olurefe (their grantor’s ancestor) got the land in dispute by settlement, and that Oba Onpetu Ashamu granted the portion verged red (including the land in dispute) on survey plan No. 30E/Y – 004 (1)94 to their ancestor Adenekan under native law and custom as Ishakole paying tenants.
The learned defendants’ counsel argued that the land granted Adenekan by Onpetu Ashamu was close to Oyo while the one granted to Lakoso was near Ogbomoso with Kiyan stream as the boundary, and that the defendants never paid Ishakole to the plaintiff. Finally that the PW3 and PW6 contradicted themselves as to being boundary neighbours. The learned counsel urged that the appeal be dismissed.
Learned counsel for the appellant, in his Reply Brief, submitted that the respondents conceded the fact that the plaintiff was given land adjacent to the land in dispute through the appellant’s supposed ancestor – Lakoso, by Onpetu Ashamu, contained in the pleadings of the respondents and in Exhibit ‘A’ when read with Exhibit ‘B’ and the evidence of PW6 and PW2 put the issue of proof of title at rest, that facts admitted need no further proof. Further that in view of the evidence of the DW2 (James Okewole, Mogaji Onpetu) which is not to be believed that the outright gift to the plaintiff cannot be disputed. He urged that judgment be given to the appellant in terms of the reliefs sought on setting aside the judgment of the trial court. I will resolve the issues as formulated by the appellants.
For a successful application of issue estoppel certain conditions must be met. These are:
(a) The same question was decided in both proceedings.
(b) The judicial decision which creates the estoppel be final, and
(c) The parties to the judicial decision or their privies were the same as the parties or their privies to the proceedings in which the estoppel is raised.
To determine whether the same question was decided in both the previous proceedings, and the present action the court may examine closely the reasons for the judgment and other relevant facts to discover what was actually in issue in the proceeding. This would help determine whether the parties and their privies, the facts in issue and the subject matter of the previous case or cases and the present are the same. See Fadiora v. Gbadebo (supra), also Alhaji Lasisi Otapo & Ors & v. Zacheus Faleye & Ors (1995) (supra). In the present case, there is no doubt that the judgments in Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ relied upon by the appellants are final judgments. Both parties are agreed that the previous suits in Exhibits ‘A’ and ‘D’ are between the same parties and/or their privies. That leaves us with the first condition, whether the same question was decided in the previous proceedings and the present one?
As rightly argued by the learned respondents’ counsel a judgment of a superior court of record should speak for itself. In Exhibits ‘A’ and ‘D’, the plaintiffs/respondents herein sued for trespass and injunction in respect of land at Owolanke village. It was held that those in possession of the land in question at the time of the alleged trespass were the people or family of Owolanke who were let into the land by the plaintiffs. In Exhibit ‘A’ the appellant then defendant did not counterclaim for title to the land in dispute. There was also no claim for title by the plaintiffs. In Exhibit ‘D’, the judgment of the Court of Appeal in respect of Exhibit ‘A’ confirmed possession of the land in dispute in Exhibit ‘A’ remained with Owolanke family and neither in the appellant’s nor Respondents’.
In Exhibits ‘A’ and ‘B’ the question that was decided was the issue of trespass and the ancillary order of injunction. The plaintiffs’ (now respondents) action failed but, in the said action the defendants (appellants) not having counter claimed for title, no decision was taken in that respect conferring title to the defendants/appellant. In Exhibit ‘A’ the issue of the defendants (appellant’s) title was not under scrutiny and was not looked into. The plaintiffs through their pleadings and evidence led in the trial court in Exhibit ‘A’ showed that they were not in possession of the land in dispute therein as at the time the action was instituted, therefore were not in a position to sue for trespass, the Owolanke family who were in possession not having been made a party in the said action.
The action failed and was dismissed.
In respect of the argument by the learned defendants/respondents’ counsel that the land in dispute in Exhibits ‘A’ and ‘D’ are different from the one now litigated upon in their defence to issue estoppel, it would be necessary to review the evidence of the defence. DW3 Ayanlude Akande at page 144, lines 17 to 20 under cross examination stated thus:
“I was aware that Oyewale Alagbe and Fakorede Adeyi had once sued Buhari in respect of a land to court at Oshogbo. It is the same land, which I called Baale Ibapon Alayan land …. ”
Similarly, DW4 Adegbola Ojo while giving evidence at page 145, lines 10 to 14 had stated thus:
“1 know the defendants had sued the plaintiff to Osogbo High Court In respect of the land in dispute. I know that there was a land in dispute between the plaintiff and the defendant because I have my farm in part of the land in dispute …. ”
From the above evidence of the defence witnesses and the contents of Exhibit ‘A’ there is no doubt that the land in dispute in Exhibit ‘A’ is the same as the land in dispute in the present suit now on appeal. Exhibit ‘D’ as earlier said, is the decision on appeal following the judgment in Exhibit ‘A’.
Even though the same land that was litigated upon by the parties and or their privies in Exhibits ‘A’ and ‘D’ is the same as the present one, contrary to the argument of the learned counsel to the appeilants the same issue or question was not decided in the two cases. Therefore the case of Alhaji Lasisi Otago &.Ors v. Zacheus Faleye &. Ors (1995) (supra) does not apply. The claims in the two proceedings are clear, as I earlier said the earlier claim was for trespass and injunction and the present suit is for declaration that the defendants are customary tenants of the plaintiff’s family, forfeiture of the defendants’ rights of occupation and use, on the ground of the refusal of the defendants to pay tribute to the plaintiff’s family as their overlords and recovery of possession of the said land by the plaintiff from the defendants, including arrears of customary tributes from the defendants. Therefore title is in issue. It cannot be truly argued therefore that the respondents cannot in the present suit raise the above issues as claimed which the appellant contends were raised in the previous suit and conclusively determined against them. This argument is not tenable. The case relied upon by the learned appellant’s counsel Agbaka v. Amadi (supra) and others cited along that line are not applicable. The plaintiffs’ failure to establish their title did not automatically vest title in the defendants of, the land in Exhibits ‘A’ and ‘D’ now in dispute once again. The appellant as defendants had no action for title in the previous suit, whereas the present suit touches on title.
The learned trial judge with respect should have been more precise, in definite terms stated that the issues in the previous suit were not the same issues raised in the present one, than loosely stating on page 192 lines 22 to 24 of the record in his judgment that the judgments in Exhibits ‘A’, ‘B’, ‘C’ and ‘D’:
“…….established nothing more than what they decided. The judgment do not alter the conclusion I reached above. ”
The present suit did not satisfy the ingredients required for issue estoppel to apply. I am of the opinion that Exhibits ‘A’ and ‘D’ do not constitute issue estoppel, therefore the first issue fails. Having concluded that the appellant’s plea of issue estoppel fails, the appellant’s action for declaration etc can not succeed under this issue, who by the pleadings and evidence is not in possession of the land in dispute.
In his issue two, the learned appellant’s counsel contended that the learned trial judge was in error when he failed to properly evaluate the evidence of the witnesses before him which led to his wrong decision bearing in mind particularly the evidence of plaintiff’s witnesses NO.6 Gabriel Oke and NO.7, Orodokun Alagbe when juxtaposed with that of defence witness NO.3 Ayanlude Akande.
From the courts records, Gabriel Oke, testified as PW3 and his evidence is on pages 116 to 118 of the records, Orodokun Alagbe testified as PW6 on pages 121 -123. In evaluating the evidence of these two plaintiff’s witnesses the learned trial judge in error (may be typographical or clerical) tagged PW3 (Gabriel Oke) as PW6 and PW6 (Orodokun Alagbe) as PW7. Curiously the learned appellant’s counsel also referred to PW3 and PW6 on record as PW6 and PW7 respectively in his brief of argument and in formulating his second issue. This mix up or error also on the part of the learned appellant’s counsel, led learned counsel to argue that the learned trial judge attributed the evidence of Defence Witness 3 (DW3) Ayanlude Akande as that of the PW7. From the court’s record PW7 on page 124 was one Raymond Nwaigbo, a Registrar then of the Court of Appeal Ibadan Division, curiously on page 119 another Raymond Nwaigbo seems to have testified as PW4, he was also a Court Registrar of Ibadan Division. In actual fact the learned trial judge in reviewing the evidence of the PW6 on record (Orodokun Alagbe) tagged it the evidence of PW7 not DW3 as argued by the learned appellant’s counsel, on his part he only gave the PW3 and PW6 their proper appellations at page 10, lines 5-10 towards the end of his brief of argument in respect of issue two.
At this stage I must comment that the record as compiled by the registry of the lower court has a lot to be desired. The accuracy of the record of any court is very important, in this case the lower court, most especially as this court as an appellate court relies solely on the contents of the record of the lower court, and has no opportunity to call or recall evidence already adduced where a mix up seems to occur in respect of the witnesses and the appellation given to them in the compiled records, as opposed to what actually took place in court. The registries have to be more careful with the compilation of records, this would make the work of counsel and the court a lot easier.
As it is, the PW3 (Gabriel Oke) and PW6 (Orodokun Alagbe) from the records of court, tagged PW6 and PW7 respectively by the learned trial judge and the learned appellant’s counsel should not make a difference to the contents of their evidence on record and subsequent evaluation by the trial judge; both are plaintiff’s witnesses. The evidence of the DW3 is also clear. See the evidence of the PW3 on page 116, lines 7-31, page 118, lines 5-6, lines 13-16.
The learned trial judge evaluated the evidence of PW3 (Gabriel Oke) on page 170 (last paragraph) to 171. The learned trial judge pointed out the contradictions by this witness in his evidence of the traditional history of the parties and how each came to the land.
PW6 (Orodokun Alagbe), in his evidence on pages 121-122 which the learned trial judge evaluated at pages 171 (bottom) page 173 (top) gave evidence that he and the defendants/respondents were co-tenants to the plaintiffs and over the years he and the defendants would go together to pay Ishakole to the plaintiffs, and that he the witness is also a member of Baale Ibapon family.
The learned trial judge did not believe his version of the traditional history of the parties. He was unable to explain why he and the defendants would go to pay Ishakole to the plaintiffs at the same time, also why a member of the family will pay lshakole to his family. He considered his evidence unreliable and rejected same and preferred the version told by the defendants/respondents. I tend to agree with the learned trial judge.
It is trite that the evaluation and ascription of probative value to evidence is the sole function of the trial judge, more especially where the evaluation is based on credibility of witnesses the Court Of Appeal is handicapped and sparingly holds otherwise. The trial judge would have had the privilege of seeing and hearing the witnesses before making its finding, as the learned trial judge did in this case. See Page 189 (last paragraph) of the record. It is not the business of this court to substitute its view of the evidence for that of the learned trial judge. There would be a miscarriage of justice if this court were to adopt such a course when it is unwarranted, unless of course the finding is perverse, which is not the case here. See Ebba v. Ogodo (2000) 17 WRN 39 (1984) 1 SCNLR 372.
The need to ensure that justice is not miscarried should always dominate the attitude and thinking of the Appeal Courts when it comes to dealing with appeals raising questions of fact. See Victor Woluchem & Ors v. Chief Simeon Gudi & Ors (1981) 5 SC. 219, Nwokoro v. Nwozu (1994) 4 NWLR (Pt 337) page 187 and Kupoluyi v. Phillips (2001) 31 WRN 128; 13 NWLR (Pt 731) 736.
In this case therefore I can not fault the evaluation of the evidence of the PW3, PW6 or any other witness by the learned trial judge. The second issue also fails.
The appellant’s third Issue also borders on the evaluation and appraisal of the totality of the evidence of the plaintiff witnesses and those of the defendants, especially in respect of whether the plaintiff family (appellant) are descendants of Lakoso as claimed by the defendants and the DW2, James Okewale, the Onpetu Ashamu Mogaji, if not, the effect of his evidence with Exhibit ‘B’ in mind and the conclusion reached by the learned trial judge.
This issue is similar to the second, in that the learned appellant’s counsel is challenging the evaluation of the evidence of the witnesses by the learned trial judge. The learned trial judge heard two versions of the traditional history of how the parties came to the land, and preferred the version of the defendants; respondents.
In paragraph 6(a) and (b) of the statement of claim the plaintiff/appellant alleged grant of the land in dispute to the defendants while paragraph 2 of the statement of defence denied the grant to them by the plaintiffs. Each side put up evidence of traditional history to prove their pleadings. On relying on the case of Mogaji v. Odofin (1978) 4 SC 91 the learned trial judge preferred the evidence of the defendants/respondents. He believed that from the totality of the evidence adduced before the court, i.e. that defendants’ ancestors were granted their land by Oba Onpetu Ashamu and relied on also the evidence of the DW2 James Oyewale who testified on behalf of Onpetu Ashamu. The DW2 is a member of Onpetu Ashamu family; stated clearly that his family granted the land to both plaintiff and defendants’ family and that each pays Ishakole to his family, therefore the learned trial judge held that both parties are customary tenants of Oba Onpetu Ashamu and that both parties pay customary tributes (Ishakole) to the same overlord, the Onpetu Ashamu. At pages 191-192, the learned trial judge also found that the plaintiff/appellant did not establish that the defendants/respondents are their tenants from whom they have been receiving Ishakole or ought to be receiving Ishakole. In my humble opinion the learned trial judge rightly found that the appellant as plaintiff did not prove that the respondents have been paying them Ishakole and did not prove that the defendants are the tenants of the plaintiff’s on the land in dispute.
After assessing the evidence on both sides the learned trial judge held thus at page 192-193 of his judgment:
“………I accept the evidence of the defendants in all material points considered by me as relevant to the issue before the court, namely, evidence of original settlement; acts of possession and ownership and overlordship and evidence of boundaries, evidence of representative of Oba Onpetu the original guarantor (sic) of the land in dispute to the defendants, I hold and I accept the defendants evidence as overwhelmingly preferable to that of the plaintiff and I also hold that the land in dispute was granted to the defendants’ family by Onpetu Ashamu to whom they pay Ishakole or customary tribute. I accept the evidence of the defendants not only in regard to tenancy but also in all respects material to this case, is cogent, more probable, convincing, satisfactory, I accept same. I reject the evidence of the plaintiff and of his witnesses. Plaintiff’s case is generally weak and in some instances it helps to strengthen the defendant’s case which by itself is strong enough to stand. ”
The learned trial judge thereafter dismissed the plaintiff’s claim having made it very clear and precise that of the two versions of the traditional history that of the respondents was more likely and acceptable and indeed accepted same. I hold that the trial judge was right and justified in preferring the evidence of the respondents based on the totality of the evidence before the trial court.
As I earlier held in the resolution of the second issue that it would be difficult for this court to substitute its views for that of the learned trial judge in evaluating evidence before the trial court where the appeal as in this case raises questions of fact. It is when the trial court fails to make findings based on the evidence adduced before him that this court would intervene and make its own findings from the evidence available, and interfere with the findings of the trial judge, which is not the case here.
The learned trial judge was right in holding that the appellant’s case as plaintiff is weak, as to entitle him to the reliefs sought.
The third issue also fails. The end result is that the appeal fails, and is hereby dismissed. The judgment of K.A. Jimoh, J of 2/3/99 is hereby affirmed. I award costs of N10,000.00 to the Respondents.
Other Citations: (2008)LCN/2737(CA)
