Amusa Amoo Ameyo V. Chief Samuel Olayode Oyewole (2008)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A,
This matter is coming to this Court for the second time. In its earlier journey, this Court ordered a retrial before another Judge of the Oyo State High Court. On further appeal, the Supreme Court affirmed the Order of this Court and also ordered a retrial, which commenced before Lajide, Ag. CJ on 1/3/1993. The genesis of the appeals is the Respondent’s action against the Appellant at the Ibadan High Court of Oyo State, wherein the Opeagbe Family claimed that they were the proper persons entitled to the statutory/customary right of occupancy of the land in dispute at Olomi Area, Ibadan; that the purported sale or alienation of the said land by the Ameyogun Family is null, void and of no effect; perpetual injunction restraining the Ameyogun Family, their agents, privies and/or anybody who bought or claims through them from further acts of trespass or alienation of the land; and N5,000.00 damages for trespass. Both families claimed ownership of the land in dispute through their ancestors who were said to have settled thereon many years ago. The Respondent’s case is that their ancestor, Opeagbe settled in the area over a century earlier, and he allowed other people to farm on parts of his land as tenants, inciuding Alaka through whom the Appellant claim ownership and it was after the Appellant’s attempt to survey the land was resisted that this action was filed.
The Appellant’s case however is that Ameyogun migrated with some of his junior hunters and settled on the land in dispute, where he was succeeded on by his children who later moved and put the land in charge of Agboola, who on the death of Akanni, then Head of Ameyogun Family, handed it over to the Family and it was thereafter partitioned among four branches of the Family. They said they were not disturbed on the land until recently and because of the competing claims over the land, the Police had to intervene and this resulted in criminal prosecution, before the institution of this case in Court. At the trial de novo, five witnesses testified for the Respondent; and a certified true copy of the evidence of a deceased witness – Lamidi Iyanda Onibuke, at the trial that was set aside on appeal, was admitted as Exhibit C through a Registrar of the Oyo State Judiciary subpoenaed for that purpose. The Appellant called two witnesses, and after hearing addresses of Counsel, Olajide, Ag. CJ delivered his Judgment on the 22nd of June 1994, wherein he compared the parties’ Survey Plans (Exhibits A & Exhibit E) and deriving support from Exhibit C (the evidence of the deceased witness) concluded-
“There are one or two contradictions in the testimony of the Plaintiff but I have no qualm in holding that he impressed me as a witness of truth. I believe him and his witnesses. The Defendant and DW2 are in my Judgment, strangers to the truth and I do not believe them. I find as a fact that Alaka farmed on the land as a tenant of the Plaintiffs Family. – – In the final analysis, I find for the Plaintiff – – “.
Aggrieved, the Appellant has again appealed to this Court with a Notice of Appeal containing six Grounds of Appeal, and in line with the Rules of Court, briefs of arguments were duly filed and exchanged, and the following Issues were formulated in the Appellant’s brief prepared by J. A. O. Ajakaiye, Esq.-
- Whether the learned Acting Chief Judge was right, having held that the traditional evidence presented by both parties was in conflict in going back to rely on the same traditional evidence of the Respondent, which was inconclusive in coming to the conclusions that the Respondent was the owner of the land.
- Whether the learned trial Judge was right in relying on the evidence of Orlibuke, Exhibit C, in the abortive trial, in coming to a decision in the present proceedings.
- Whether the learned trial Judge was right in relying on Section 46 of the Evidence Act, in coming to the decision as to the owner of the land in dispute, when by pleadings there was a presumption in favour of the Appellant as to the ownership of the land in dispute, which was not displaced by the Respondent.
The Respondent however submitted in his own brief prepared by Taiwo Hon-Oladele, Esq., that the issues that call for determination are as follows-
(1) Whether the trial Judge was right in giving Judgment in favour of the Plaintiff in view of the quality of the evidence proffered by both parties.
(2) Whether the trial Court did a proper appraisal and evaluation of the totality of evidence adduced by both parties before finding for the Plaintiff and entering Judgment in his favour.
(3) Whether the trial Judge was wrong in admitting and making use of Exhibit C in the Judgment in arriving at his conclusion.
(4) Whether the trail Judge was wrong in using Section 46 of the Evidence Act to resolve the conflicting traditional evidence of the parties to determine which of them is more probable.
There is not much difference in the issues formulated by the parties and they all point in one direction anyway – evaluation of evidence, which is basically the assessment of the facts by the trial Court in its endeavor to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim – see Oyadiji V. Olanlyi (2005) 5 NWLR (Pt. 919) 561. The Appellant’s contention is that the lower Court’s approach was wrong; they argued that if it had considered the case from the parties’ pleadings, it would not have arrived at the conclusion that their traditional evidence are in conflict; rather it would have found that apart from mere assertion the Respondent did not prove the tenancy of the Appellant’s family on the land in dispute as alleged by them, citing Waghoreghor & Ors V. Aghenghen (1974) 1 SC 1 & Abioye V. Yakubu (1991) 5 NWLR (Pt. 190) 130. However, the Respondent submitted that from the pleadings and evidence in support,the lower Court was right to apply the rule in Kojo II V. Bonsie (1957) 1 WLR 1223 equally used in Ogbukwelu V. Ume-Anafunkwa (1994) 4 NWLR (Pt. 314) 676, Okwanobi’s case (1998) 7 NWLR (Pt 358) 481, & Eze V. Ataise (2004) 46 WRNL What did the lower Court actually say in this case? After it set out “The gist of the story told by the Plaintiff and his witnesses” and that of “The defence in a nutshell”, it proceeded to observe as follows-
“Both parties are claiming ownership of the land through their ancestors – – As to be expected no living witness was called to testify to these acts of settlements. All I had was traditional oral evidence. Each side may honestly believe in the veracity of his story but surely both accounts cannot be correct. In a situation like that demeanor of witness is of little guide to the truth. The best approach is to test each account with acts of recent times. See the case of (1) Kojo Vs. Bonsie”. The rule in Kojo II V. Bonsie says that where, in a land matter, the evidence of traditional history relied upon by both parties is conflicting in the sense that it is not clear as to which version to believe, the trial Court should make reference to evidence of acts of recent possession and ownership to determine the version that is more probable. In other words, where each party relied on traditional history conflicting of each other, the best way to test the probability of each conflicting version is by reference to an event or events in recent time – see Ogunleye V. Oyewoje (2000) 14 NWLR (Pt. 687) 290 & Agwunedu V. Onwumere (1994) 1 NWLR (Pt. 321) 375 SC.The Appellant’s argument is that the lower Court held that the parties’ traditional evidence was inconclusive, yet it turned around to rely on the same traditional evidence to arrive at its conclusion in favour of the Respondent. But it is clear from what the lower Court actually said that even though it made reference to the rule in Kojo II V. Bonsie it did not categorically say that it had evaluated the evidence adduced and determined it was inconclusive. All it said is that the traditional oral evidence presented by each side cannot both be correct and to ascertain which of the parties to believe, it would “test each account with acts of recent times” and that is what it proceeded to do. It’s a different matter altogether if the accounts were properly tested or not. In testing each account with acts of recent times, the lower Court considered the parties’ respective Survey plans (Exhibits A & E) and Exhibit C, the evidence of the deceased witness at the trial that was set aside, and held –
“The Plaintiff by his counsel tendered Exhibit ‘C’ a certified true copy of the evidence given by one Lamidi Iyanda Onibuke, now dead, at the abortive trial – – In the Exhibit he was recorded as saying – –
I admitted Exhibit ‘c by virtue of section 34(1) of the Evidence Act – – All the conditions laid down by this enactment have been fulfilled – which justify the reception in evidence of the Exhibit. The following two facts therein reproduced above support the Plaintiff’s case: (1) that Ope-agbe granted land to Onibuke and (2) that the said land formed boundary with the land in dispute. There is no testimony before me that those fads are false. I take them as true”.
The Appellant faulted this conclusion and submitted that plans are part of pleadings, citing Ayanbaje V. Balogun (1990) 9 SCNJ 23; that where boundaries conflicts with those on the plan, the claim fails, citing Akubueze V. Nwakuche (1959) 4 FSC 262; and that Exhibit C conflicts with Exhibit A.
Furthermore, that the evidence in Exhibit C is inadmissible as evidence in an earlier proceeding is not relevant except for the purpose of discrediting a witness in cross-examination only, citing Ariku V. Ajiwogbo (1962) 1 All NLR (Pt. IV) 629, Ogunaike V. Ogunyemi (1987) 3 SC 213, Njoku V. Eme 5 SC 293- Fadiora V. Gbadebo (1978) 3 5C 219, & Amuroti V. Agbeke (1991) 6 5CNJ 64; that it had been set aside and it was wrong of the lower Court to rely on it, thus its use has occasioned a miscarriage of justice, citing Onajobi V. Olanipekun (1985) 4 5C (Pt. 2) 156 & Saude V. Abdullahi (1989) 7 SCNJ 216; and it should be expunged, citing Igbodin V. Oblanke (1976) 9-10 SC 179 & Okhuarobo V. Aigbe (2002) 97 LRCN 1033. However, the Respondent argued that Exhibit C is properly admitted in evidence by virtue of Section 34(1) of the Evidence Act, and that the cases cited by the Appellant are irrelevant because Section 34(1) and its provisos are not applicable to them. Section 34(1) of the Evidence Act provides that-
“Evidence given by a witness in a judicial proceedings or before any person authorized by law to take it is relevant for the purpose of proving in a subsequent judicial proceedings, the truth of the facts which it states, when the witness is dead or can not be found or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence can not be obtained without an amount of delay or expense which in the circumstances of the case, the Court considers unreasonable: provided –
(a) That the proceedings was between the same parties or their representative in interest;
(b) That the adverse party in the proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.
No doubt, Exhibit C fulfilled the above conditions with flying colours but, and it is a big BUT, the lower Court failed to address its mind to the fact that the first proceeding in which the deceased witness testified was set aside and the case sent back for re-trial, so the evidence is inadmissible in the second trial – see Fadiora V. Gbadebo (supra), where the Supreme Court held-
“- – In trials de novo the case must be proved anew or rather reproved de novo, and therefore, the evidence and verdict as well as the Judge’s findings at the first trial are completely inadmissible on the basis that prima facie they have been discarded or got rid of. The Court of second trial, therefore, is entitled to and, indeed, must look at the pleadings before it in order to ascertain and decide the issues joined by the parties on their pleadings”.
So, there we have it in black and white; the evidence of the deceased witness in Exhibit C is inadmissible, and should not have been relied on by the lower Court at the second trial, which was a re-trial of the first that was set aside. That’s not all, the lower Court admitted the Appellant’s evidence at the first trial as Exhibit D, which it used to discredit his evidence before it and arrive at its conclusion that the Respondent is “more credit worthy” than the Appellant. This is a valid move by the lower Court if the evidence used to discredit him was admissible, but in this case, Exhibit D is just as inadmissible as Exhibit C. They both come from a contaminated source; the first trial that was set aside. Exhibits C & D are clearly inadmissible evidence and they are thus expunged – see Onochie V. Odogwu (2006) NWLR (Pt. 975) 65 & Shittu V. Fashawe (2005) 14 NWLR (Pt. 946) 671, where the Supreme Court added that after expunging inadmissible evidence, the appellate Court should consider if there is any remaining legal evidence to sustain the claim. In this case, the only evidence left is the survey Plans, which are not that relevant anyway since parties “did not contest the identity of the land” as the lower Court observed, and without credible evidence, survey plans alone cannot sustain any claims. Now, it is settled law that an appellate Court will reverse the decision of a trial Court if it is of the opinion that inadmissible evidence influenced the decision of the trial Court, which would not have been the same if it was not admitted – see Abuul V. BENSU (2003) 16 NWLR (Pt 845) 59. In this case, I say without qualms that tile reasons and findings that led the lower Court to find for the Respondent is riddled with inadmissible evidence from Exhibits C & D, and since there is no legal evidence remaining to sustain the claim either way, its Judgment will be set aside and the case sent back for re-trial de novo. The end result of the foregoing is that the appeal succeeds and is allowed.
The Judgment of the lower Court is hereby set aside and Suit No. 1/3/85 is sent back to the High Court, Ibaban for re-trial de novo for the second time. Each party will bear their own costs.
Other Citations: (2008)LCN/2761(CA)
