Chief Akinpeninu Iyanda & Ors V. Chief Afolabi Laniba Ii (Baale Awe) & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A. 

The plaintiffs for themselves and on behalf of Awe Community, commenced and issued a writ of summons in a representative capacity for themselves and on behalf of Awe Community against the defendants, jointly and severally. After service of the writ of summons on the defendants, they entered appearances and had a joint legal representation. Pleadings were filed, exchanged, delivered and amended with trial concluded on the amended pleadings, which are referred to as statement of claim, statement of defence and counterclaim, reply to statement of claim and defence to counter-claims.

In paragraph 43 of the statement of claim, the plaintiffs claimed as follows:-

“43. Wherefore the plaintiffs claim against the defendants:-

(i) Forfeiture of the customary tenancy of the defendants on the land in dispute for the denial of the plaintiff’s right on the land and for misconduct;

(ii) Declaration that the plaintiffs are the persons entitled on behalf of the Awe Community, to a declaration of a customary right of occupancy in respect of all that piece/parcel of land situate, lying and being at Eleranko Area, Awe, along Awe-Iwo Road, and shown on draft plan No. AAY 1645, attached herewith, marked exhibit A and shown thereon edged blue;

(iii) Possession of the said land in dispute;

(iv) N50,000.00 being damages for trespass, committed by the defendants on the said land, sometime in January, 1985, or there about, after their tenancy had been terminated by notice and by their act of claiming to be owners of the land in dispute and of uprooting plaintiff’s trees on the land in dispute, leaving the land and such like acts of trespass still continues and for misconduct.

(v) Injunction to restrain the defendants, their servants and/or agents and all others howsoever, who come to the land through them from in anyway coming to the land or in any way disturbing the plaintiff’s possession or right to possession of the land or from committing further acts of trespass on the land in dispute.

In accordance with the High Court Rules of Oyo State, the defendants set up a counter-claim as follows in paragraph 34, in their statement of defence and counter-claim; whilst in paragraph 33 of their statement of defence and counter-claim they particularised and itemised the sum of N50,000.00, claimed as special and general damages:-

“33.

Special Damages N

(1)(a) Treatment of the defendants and defendant’s dependants at

the Iwo General Hospital and purchase of drugs and medicine;- 500.00

(b) Property of the defendant’s dependants destroyed by the plaintiff’s agents and servants -2,000.00

(c) Economic trees of the defendants destroyed by the plaintiffs’ agents and servants- 22,500.00

c/f N25,000- b/f N25,000 (2) General damages-N25.000 Grand Total- N50,000.00

(34(i) Declaration that the defendants are the persons entitled to a customary right of occupancy in respect of the land in dispute and including the other area of land, not in dispute as shown in survey plan No. RBDS/OY/334/88 dated 2nd April, 1988;

(ii) N50,000,00 special and general damages for trespass committed on the land by the plaintiffs, by claiming to be the owners of the land in dispute and by the wanton destruction by the plaintiff’s agents and servants of the defendants’ economic tree crops and property.

(iii) Perpetual injunction restraining the plaintiffs, their servants, agents or privies from disturbing the defendant’s possession or from committing further acts of trespass on the land in dispute.”

The 2nd and 3rd plaintiffs together with other 11 witnesses testified for the plaintiffs to substantiate plaintiff’s claim and defence to the counter-claim, The plaintiff’s witnesses were subjected especially the 6th, 7th and 8th plaintiff’s witnesses to very copious and rigorous cross-examination by the learned Counsel to the defendants as reflected in the printed records of appeal. The 1st and 3rd defendants testified for the defendants in defence of the claim against them and to substantiate the counter-claim, whilst they called 10 other defence witnesses to support the defence and the counterclaim.

All the defendants, who testified and their witnesses were similarly rigorously cross-examined. In the course of trial, documentary evidence were admitted and marked as exhibits. Reference shall be made to the documents where necessary in this judgment.

Upon completion of trial the learned Counsel to the parties gave impressive and well researched addresses before the learned trial Judge who delivered his well considered judgment at pages 114 to 188 of the record of appeal wherein he gave judgment in part in favour of the plaintiffs whilst he dismissed in its entirety the counterclaim.

The defendants being dissatisfied with the judgment filed a notice of appeal reflected at page 189 of the record of appeal. The omnibus ground was the only ground of appeal raised in the said notice of appeal. With the leave of this court, defendants henceforth, referred to in this judgment as appellants filed amended 11 grounds of appeal No. 2. In accordance with the rules of this court, they furnished the particulars to the grounds of appeal. The amended grounds of appeal No. 2 was served on the plaintiffs, who are hereinafter referred to in this judgment, as respondents.

The notice of appeal and amended grounds of appeal filed by appellants were served on respondents. Based upon them with the leave of this court, appellants filed an amended appellant’s brief of argument wherein, it set out all the amended grounds of appeal except ground 2, which is hereby deemed to have been abandoned.

In compliance with the rules of brief writing, appellants raised 7 issues for determination in this appeal which for ease of reference are set down as follows:- Page 5 paragraph or chapter C:

Issues for Determination

1. Whether the public documents O, P, Q and R are not conclusive proof of the fact that the land in dispute originated from the Oluwo, the Suzerain of Iwo and that the relevant weight of the exhibits would have proved for certain that, the land belonged to the Oluwo and therefore, was under Iwo Local Government and so the court lacked jurisdiction to try the matter as at the time the Osogbo Judicial Division had jurisdiction over matters affecting Iwo Local Government. Exhibits R and Q, having been tendered in evidence is conclusive proof of the Oluwo’s title.
2. Whether in the light of the evidence, the plaintiffs had locus standi to institute the action, Awe being an area under Oyo Local Government and the claim of the plaintiff’s raising a boundary dispute between the Oyo and Iwo Local Government Councils.
3. Whether a witness summoned to tender documents under section 191 of the Evidence Act, need give any further oral evidence in explanation of the documents tendered.
4. Whether in the light of all the evidence at the trial both documentary and oral the provision of section 45 of the Evidence Act, does not enure to the benefit of the defendants and whether the decision was justified considering the totality of the evidence against the plaintiff’s claim to ownership of the land.
5. Whether hunting lights without conclusive evidence of payment of Ishakole, without more amounts to ownership of the land.
6. Whether relief from forfeiture should not have been granted.
7. Whether the learned trial Judge ascribing wrongly a statement made by the plaintiffs in their statement of claim to the defendant’s counsel, did not lead to a miscarriage of justice.

It is pertinent to note that, the appellant’s 7 issues for determination were ominously silent as to which amended grounds of appeal they were based or to which they correlate. In arguing the issues, appellants failed to relate or connect the issues to the grounds of appeal. Though, an issue under the rules of brief writing may encompass one, or two or three grounds of appeal in one issue, but it is incompetent and inelegant to formulate more issues than the grounds of appeal as the appellate courts deprecate and frown on proliferation of issues more than the grounds of appeal. The amended appellant’s brief was served on respondents, who filed amended brief of argument.

At page three of respondent’s amended brief of argument in paragraph 5.1 to 5.5 respondents raised and gave notice of preliminary objection to strike out in particular grounds 2 and 9 of the amended grounds of appeal number 2 and the arguments based on them. Respondents concluded that in the event, the court overrules the objections the respondents will proceed to treat the issues as follows:-

Prior to paragraph 5 at page 3 of respondents’ amended brief of argument in paragraph 4 at page 3 of respondents amended brief of argument raised the underlisted issues arising in this appeal:-

4. Issues arising in this appeal.

4.1 The only issues arising from the grounds of appeal are as follows:-

(i)What is the role expected of a witness subpoenaed under section 192 or193 of the Evidence Act?(covers ground2)

(ii) Whether the defendant’s evidence was sufficient to sustain their root of title traced to an alleged grant by a past Oluwo of Iwo? (covers grounds 1, 3,4 and 10)

(iii) Whether there was sufficient evidence before the lower court to justify the granting of the plaintiff’s claims?(covers grounds 5, 6, 7 and 8)

(iv) Whether the learned trial Judge properly identified the author of the statement that the defendants were initially happy with the proposal to use the land in dispute? (covers ground 9)

As the preliminary objection was raised in respondent’s brief of argument, appellants replied in chapter paragraphs 1.5 to 2.4 appellant’s reply brief at pages 2 to 5 of the said reply brief concluded in paragraph 2.4 thus:-

“On the whole, the objections of the respondents are highly misconceived and should be dismissed as they all amount to an attempt to defend the indefensible…. consider the totality of what is advanced by the appellants and do substantial justice instead of relying on technicalities alone.”

After careful arguments by respondents at pages 3 – 5 of respondent’s brief of argument and pages 2 – 5 in appellant’s reply brief, it is better and more prudent to consider the preliminary objection in the argument raised on the issues by appellants and respondents in their briefs of argument, which was rightly anticipated by respondents in paragraph 6.1 respondent’s brief of argument reflected above in this judgment.

Issues 1 and 2, amended appellant’s brief of argument raised the issue of locus standi of respondents and that Oyo High Court lacked jurisdiction as the land in dispute, fell within Iwo Local Government as shown in:

“(a) Exhibit ‘O’ Oyo State Local Government Map.

(b) Exhibit ‘P’ Iwo Local Government Area Map.

(c) Exhibit ‘Q’ Western Region of Nigeria Public Notice No. 61 of 1953.

(d) Exhibit ‘R’ Map of Oba Hills Forest Reserve.”

And the proper jurisdiction is the lex situs of the land as provided in High Court (Civil Procedure) Rules of Oyo State, with the venue then being Osogbo High Court and not Oyo High Court.

It is trite law that, once the issue of the locus standi and jurisdiction of the court is raised even for the first time in this court or the Supreme Court, the issue must be resolved first before taking any other step, as it is basic and fundamental to the action filed, Egolum v. Obasanjo (1999)7 NWLR (Pt. 611 ) page 355 SC; Nnubia v. A.-G., Rivers State (1999) 3 NWLR(Pt. 593) page 82 CA, Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 75) 675 Sc.

These issues of locus standi and jurisdiction of respondents were raised in the lower court and the learned trial Judge stated as follows at pages 169, 170 and 171 of the record of appeal:-

“I think there is the need to mention, to begin with, that it seems difficult to understand the basis for the submission of Dr. Aremu, learned Counsel for the defendants to the effect that the plaintiffs have no locus standi to institute the present action. It is quite possible, as contended by the learned Counsel that the set of facts disclosed in this case could give rise to a boundary dispute between the Oyo Local Government (now Afijio Local Government) and Iwo Local Government. But, even if this was possible. I do not see what could prevent the plaintiffs, their rights were affected, from instituting this action either as co-plaintiffs with the Oyo Local Government (now Afijio Local Government) or independently on their own. It is well known that a person seeking relief from the court must show that he has locus standi in the case in the sense that his legal rights have been or are in imminent danger of being invaded and in consequence, he has suffered or is likely to suffer injuries over and above those suffered by the public generally. A person who can show that he has suffered or is likely to suffer more injuries over and above those suffered by the public generally could therefore not be said to have no locus standi in the matter. (See Gamioba & Ors. v. Esesi II & Ors. (1961) ALL NLR 584; Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 5 SC 112 at page 161, and Thomas v. Olufosoye (1986) 1 NWLR 669).

The plaintiffs in this case, representing Awe Community, have claimed that they have proprietary rights and interests in the land in dispute which the defendants are alleged to be occupying wrongly. To that extent, the plaintiffs have shown that the injuries likely to be suffered by them are more than could be suffered by the public generally. I therefore, hold that they have locus standi in this matter and they are proper plaintiffs in this action.

The defendants have indicated in paragraph 25 of their statement of defence and counter-claim that they were going to raise as a preliminary point of law, the issue as to whether this court has jurisdiction to adjudicate on this action since the land in dispute is outside the court’s jurisdiction. There is nothing on the court’s record to show that this point was ever taken up as a preliminary issue. It certainly was not taken up immediately before the trial of this case commenced.

Furthermore, Dr. Aremu, learned Counsel for the defendants, did not make any clear submission on this point in the course of his address. It would suffice, however, to say that no cogent evidence was adduced in the course of the trial to show that the land in dispute was outside the territorial jurisdiction of this court. The evidence of the 2nd D.W., who was called to testify on this point and who in the process, tendered the Local Government map of Oyo State as at 1985 (exhibit O), was not of much assistance in that he could not say categorically in which Local Government the land in dispute and the villages whose names have featured prominently in this case would fall. The name of the villages, apart from Kiyeseni were not reflected on the map (exhibit O); neither was Eleranko stream which the plaintiffs have claimed to be the boundary between their land and Iwo people’s land reflected on the plan exhibit O. Similarly, the 3rd D.W who was also called to testify on this point, merely dumped on the court, what he called the map of Iwo Local Government Area (exhibit P) without being able to explain anything reflected in the said plan. This is not surprising, since the 3rd D.W. was a Clerical Officer and not a surveyor in Iwo Local Government Secretarial and did not possess any skill in map reading. In any event, a close scrutiny of the map shows Kiyeseni as being within Iwo Local Government Area whereas the defendants in paragraph II of their statement of defence the boundary between Iwo and Oyo Local Governments is at Kiyeseni which is said to be about 2 kilometers from the land in dispute when going from Iwo to Oyo. No where in the map (exhibit P) was Eleranko stream which had featured prominently in this case mentioned. I have no difficulty in coming to the conclusion that both maps exhibits O and P, tendered by the defendants have been of very little value in determining whether or not the land in dispute falls outside the jurisdiction of this court, therefore, hold that this court has jurisdiction to entertain the present suit.” (The italics are mine).

The nature of locus standi of a plaintiff (respondent in this appeal) is a threshold question and what constitutes locus standi of plaintiff was expatiated upon by the Supreme Court in the case of Josiah Kayode Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (Joined by order of court dated December 1st, 1989, as defendants to counter-claim) (2000) 10 NWLR (Pt. 675) page 315 and held by Supreme Court as follows:-

1. On denotation of locus standi-

The term locus standi (or standing) denotes the legal capacity to institute proceedings in a court of law. (P. 338, para. E)

2. On nature of issue of locus standi –

Locus standi is unquestionably a threshold issue. (P. 357, paras. F-G).

3. On whether locus standi is dependent on merits of a case and treatment of case where plaintiff lacks locus- Standing to sue is not dependent on the success or merits of a case but on the showing of the plaintiff’s case in his statement of claim. It is a condition precedent to a determination on the merits. It follows therefore, that if the plaintiff has no locus standi or standing to sue, it is not necessary to consider whether there is a genuine case on the merits; his case must be struck out as being incompetent. (Momoh v. Olotu (1970) 1 ALL NLR 117; Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632; Adesanya v. The President (1981) 5 SC 112; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618 referred to.) (Pp. 338, paras. E-F; 357, paras. F-G)
4. On need for plaintiff to have locus standi before being heard in court-

Locus standi is a status which a plaintiff must have before being heard in court. In the instant case, the fact and circumstances were certainly sufficient to vest the appellant with locus standi to maintain the action. (Momoh v. Olotu (1970) 1 ALL NLR 117; Gamioba v. Ezezi II (1961 ALL NLR 584, (1961) 2 SCNLR 237; Adesanya v. The President (1981) 5 SC 112 referred to.) (Pp. 362, paras. E-F)

5. On how locus standi of plaintiff is determined-

The question whether or not a plaintiff has a locus standi in a suit is determinable from a totality of all the averments in his statement of claim. Thus, in dealing with the locus standi of a plaintiff, it is his statement of claim alone that has to be carefully scrutinised with a view to ascertaining whether or not it has disclosed his interest and how such interest has arisen in the subject matter of the action. (Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632; Momoh v. Olotu (1970) 1 ALL NLR 117 referred to). (Pp. 354-355), paras. F-G)

6. On what averments in plaintiff’s pleadings must disclose to confer locus standi on him –

Where the averments in a plaintiff’s statement of claim disclose the rights or interests of the plaintiff which have been or are in danger of being violated, invaded or adversely affected by the act of the defendant, the complaint of such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject matter in issue. In the instant case, there can be no doubt that the appellant, in the light of the averments in the statement of claim, disclosed sufficient interest in the subject matter of his claim and so has locus standi. (Momoh v. Olotu (1970) 1 ALL NLR 117; Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112; Eleso v. Government of Ogun State (1990) 2 NWLR (Pt. 133) 420; Oloriode v. Oyebi (1984) 1 SCNLR 390 referred to.) (P. 355, paras. A-E) per Iguh, J.S.C. at page 355, paras. B – E)

“In the present case, the plaintiff did not only plead that he is a member of the Celestial Church of Christ, an Honorary Evangelist, a member of the Board of Trustees, Chairman of the Council of International Management Committee and the 1st Vice Chairman of the Council of Honorary Evangelists of the said Church, it was further averred that he is interested in the office of the Pastor of the Church and that he has a right under section II of the Constitution of the Church to be named and proclaimed the successor to the said office of Pastor.

It was also pleaded that Papa Oshoffa, the Pastor Founder of the Church, had during his life time named the plaintiff and no one else as his successor. The plaintiff therefore contended in his said pleadings that he is the only person rightfully entitled to be named and proclaimed the successor to the office of Pastor and that the purported proclamation of the 2nd defendant as the successor of the deceased Pastor/Founder is not only unconstitutional but illegal and null and void. It is clear that the plaintiff’s claim is that he had the civil right and obligation to ensure that the appointment of the office of Pastor, is carried out in a way that does not adversely affect his interest in that office.

There can be no doubt, in the face of the above averments in the statement of claim, that the plaintiff disclosed sufficient interest in the subject matter of his claim.

7. On need for claim to reveal sufficient interest in order for plaintiff to have standing to sue-

In order to achieve the status of locus standi or standing to sue, the claim of the plaintiff must reveal a legal or justiciable right or show sufficient or special interest adversely affected. The claim also ought to reveal a justifiable cause of action. In the instant case, the appellant disclosed in his averments the interests which he had in commencing the action. (P. 366, paras. BH).”

Applying the above to the arguments raised in issues 1 and 2 in appellant’s brief, the respondent’s preliminary objection with the findings of the learned trial Judge at pages 169, 170 and 171, of the record of appeal, it is my view that the respondents established their locus standi having been based on their statement of claim and that the issues 1 and 2 raised in appellant’s brief of argument lack substance in that the objection was based on evidence as contained in exhibits O, P, Q and R, which evaluation and ascription were rightly done by the learned trial Judge his conclusion, being a finding of fact as an appellate court as the findings of facts as to the legal sufficient interests of respondents they were not perverse as they were borne out as pleaded in the statement of claim and evidence based on the said averments, they confirm that respondents have sufficient legal interest on the infringement of their legal rights, appellant’s complaints of the lack of locus standi being a threshold question is hereby rejected and reiterate that respondents had sufficient legal interest to institute the action in the lower court, The lower court to adjudicate on the action it must be competent so held the Supreme Court in the case of Gabriel Madukolu and Others (for themselves and on behalf of the Umuonala Family v. Johnson Nkemdilim (1962) 2 SCNLR page 341 at 348 that- “Per Bairamian, F. J. thus:-

Put briefly, a court is competent when:

1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case, which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction, Any defect in competence is fatal for the proceedings are a nullity, however, well conducted and decided the defect is extrinsic to the adjudication, applied in Adisa v, Oyinwola (2000) 10 NWLR (Pt. 674) page 116 SC; Uwah Printer (Nig,) Ltd. v. Umoren (2000) 15 NWLR (Pt. 689) page 78 CA.”

Applying the above with the finding that respondents had the locus standi confirmed by this court, with appellants as defendants and counter-claimants in the lower and trial court that proper parties were before the court, but appellants attacked the jurisdiction as the land in dispute as shown in exhibits O, P, Q and R, pointedly that the land fell within Iwo Local Government inclusive of the Oba Hills Forestry Reserve the action ought to have been filed and commenced in Osogbo High Court and not Oyo High Court with the former as the lex situs.

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission. Section 272 (1) 1999 Constitution reads thus:-

“272(1) Subject to the provisions of section 251 and other provisions of the Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

Under which Oyo State High Court was set up and High Court Law of Oyo State Cap. 46, sections 10 and 14 are constituted and which may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters which the particular court has cognisance or as to area which the jurisdiction extends or it may partake of both these characteristics, see vol. 10 Halsbury’s Laws of England paragraph 715 page 323.

Judicially interpreted that High Court has unlimited jurisdiction on grant of statutory right of occupancy and concurrent jurisdiction with customary court for grant of customary grant of occupancy Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116 SC; Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 CA.

At page 857, Black’s Law Dictionary Seventh Edition, ‘Territorial Jurisdiction’ means;

1. Jurisdiction over cases arising in or involving persons residing within a defined territory
2. Territory over which a governance, one of its courts or one of its sub-divisions has jurisdiction.”

My understanding of the contention of the appellants raised that by virtue of exhibits O, P, Q and R, Oyo High Court lacked territorial jurisdiction to adjudicate on this matter especially exhibit P, the map of Iwo Local Government wherein at the North West Corner, Oba Hills Forest Reserve depicted green showed that Kiyeseni, which the parties contended to be the boundary between Oyo Local Government and Iwo Local Government fell within Oba Forestry Reserve shown to be within Iwo Local Government. By virtue of falling within Oba Forestry Reserve court ought to hold that the rights of the owners were preserved under the Forestry Law of Oyo State, with reliance based on the case of Oba Adetayo I. the Orimolusi of Ijebu-Igbo and 2 ors. v. The A.-G., Western State & 3 Ors. WSCA volume 2,1976 page 146. Incidentally, I was the learned Counsel for the 3rd respondent/defendant. The case is distinguishable from this case wherein I submitted at page 151 Kayode Eso, J.C.A. (as he then was) stated-

“Mr. Onalaja said in his own submission that parties are bound by their pleadings. When an area is constituted Forest Reserve, all rights are extinguished except rights that were reserved. The plaintiffs must aver the rights that were reserved under section 10. Once the fact that their rights were saved was not pleaded, plaintiffs were out of court.”

In the instant appeal, appellants did not aver nor led EVIDENCE that their rights were reserved, saved or recognised in the judgment of the SETTLEMENT OFFICER under section 10 of the Forestry Law. The appellants showed no nexus of the land in dispute with exhibit Q being WR Public Notice No. 61 of 1953 as Order made under THE FORESTRY ORDINANCE CAP. 75, OBA HILLS FORESTRY AMENDMENT ORDER 1953.

Exhibit R did not assist appellants either, it is vegetation map without naming any body.

The last straw that breaks the appellant’s camel back are exhibits A and N, which are survey plans of the disputed land by respondents and appellants/counter-claimants. In exhibit A, the land in dispute was verged blue and covered an area of 401.363 hectares. It showed the reserved forest to the North West of exhibit A after Oba River without demarcation or extent of the reserved forest without describing it as Oba Hill Forest reserve it did not Form boundary with the area verged blue as the land in dispute in exhibit A.

In exhibit N, though OBA HILLS FOREST RESERVE was shown in the Northern part the area in dispute did not include the OBA HILLS FOREST RESERVE it only formed boundary and extends to OBA RIVER.

From the foregoing, the findings of the learned trial Judge at pages 170 to 171 of the record of appeal underlined above for avoidance of repetition are hereby re-adopted.

Having looked critically and my comments on exhibits A, N, O, P, W and R, supra the finding of fact by the learned trial Judge, that he had jurisdiction to adjudicate was borne out from the pleadings, evidence and assumption of jurisdiction to establish adjudication on the matter was through the pieces of evidence and bold to say that the finding was not perverse and as appellate court there is no legal basis or justification to disturb the said finding of fact. Issues 1 and 2 are resolved against appellants, the arguments in the preliminary objection was subsumed in the consideration of appellant’s issues 1 and 2, already resolved against the appellants as unmeritorious.

Having disposed off issues 1 and 2 in appellant’s brief of argument and the preliminary objection on respondent’s brief of argument, the other issues formulated by respondent’s correlation to the grounds of appeal impressed me and I adopt the said four issues in respondent’s brief of argument as the fulcrum of further consideration in this appeal, this is without prejudice to marrying other appellant’s issues with respondents’ four issues.

Issue 1 respondent’s brief of argument same as issue 3 in appellants’ brief of argument succinctly put as to the role expected of a witness subpoened under section 192 or 193 of the Evidence Act.

Appellants at pages 11 to 13 of their brief of argument submitted that a witness subpoened to tender documents under sections 192 and 193 Evidence Act, was merely to tender the document no more.

Once DW2 had produced the document the duty is cast on the court to scrutinize it. The learned trial Judge understood this law but erred when he stated at page 171 that:-

“A close scrutiny of the plan shows Kiyeseni as being within Iwo Local Government Area whereas the defendants in paragraph 11 of their amended statement of defence averred that the boundary between Iwo and Oyo Local Government is at Kiyeseni which is said to be about 2 kilometres from the land in dispute when going from Iwo to Oyo.”

The above finding and conclusion by the learned trial Judge foreclosed further evidence of the boundary between Iwo and Oyo Local Government, when appellants predicated the case that the land in dispute fell within Iwo Local Government. The mere production of the map raised the presumption of the contents without any further proof under section 119 Evidence Act. Having tendered exhibit P as a map under section 119 of the Evidence Act, the maps being documentary evidence were of superior probative value than the concocted traditional evidence. As the issue of jurisdiction was raised it was incumbent on the learned trial Judge to resolve the issue of jurisdiction before proceeding to hear the case Ukpai v. Okoro (1983) 11 SC 231 at 249. Appellants were silent as to the effect of what resolution, this court was to make in the appeal, on the said issue.

Respondents submitted on their issue one in their brief of argument at pages 5 and 6 that as 3rd DW was subpoened to tender a public map under sections 192 and 193 and 119 Evidence Act there was no need to give evidence on it, that there was no evidence as to the type of subpoena served on 3rd DW. If he was subpoenaed to tender the map, he became a witness for the purposes of the case and would need to give evidence to explain the map to the court to be of any assistance to the court Famakinwa v. Unibadan (1992) 7 NWLR CPt.255) 608; Akono v. The Nigerian Army (2000) 14NWLR CPt.687) page 318 at 328-329.

Section 119 Evidence Act, merely provides for admissibility of such map without further proof and that the map shall be presumed to be correct, it was the failure of the 3rd DW to explain the map to the court that led to the observation of the court at page 171 and properly admitted under section 119 of Evidence Act. The court did not allow the failure or inability of 3rd DW, to explain the map to deter him. Appellants conceded that the learned trial Judge scrutinized the map himself, before making his finding on it. There is no merit in this issue ground 2 upon which it was based be dismissed.

The above issues raised the application of sections 192, 193 and 119 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 they stated as follows:-

“S. 192. Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if because such document to be produced in court, the court may dispense with his personal attendance.

193. A person summoned to produce a document does not become a witness by the mere fact that, he produces it and cannot be cross-examined unless and until he is called as a witness.”

Judicially interpreted in Michael Onwuamaka v. Albert Okolie (1955-56) WRNLR 1959, that a person who was called by the respondent to produce the record of previous proceedings, which record was required in the suit went to the witness box and tendered the record on oath. The trial magistrate refused the appellant right to cross-examine him on the ground that he was called merely to produce a document. In holding that the trial magistrate was in error Onyeama Ag., J. (as he then was) said:-

“It is to be observed section 192 of the Evidence Ordinance speaks of A person summoned and A witness. I am of the opinion in view of section 179 of the Evidence Ordinance, that a witness under the Evidence Ordinance is anyone who gives evidence in any proceedings upon oath or affirmation and by virtue of section 181 and 182 of the Ordinance. It follows from this that, the person who put in the certified copy of the native court proceedings, upon being sworn, became a witness for all purposes and was liable to cross-examination. See further Mr. J. O. Famakinwa v. University of Ibadan & Anor. (1992) 7 NWLR (Pt. 255) page 608 CA; Akono v. The Nigerian Army (2000) 14 NWLR (Pt. 687) page 318 at 328-329 CA.

Interpreted sections 192 and 193 Evidence Act. It was held in Famakinwa’s case that;

“(7) A person who by subpoena duces tecum produces a document, does not merely by such production become a witness and this explains why he is not sworn or cross examined.

Conversely, a person who is issued with subpoena ad testificandum et duces tecum, would not only be required to produce the document in question, he would in addition be led in evidence on oath as well as lay himself open to cross-examination.”

In the instant appeal, the 2nd DW and 3rd DW were not summoned to tender documents alone. Rather they were called as witnesses for respondents as apart from tendering documents they were sworn as witnesses, testified in chief and later cross-examined. If it was intended to tender documents alone they should just have produced the documents alone and should not have been sworn as clearly stated in section 192. But where the party was sworn in and took oath and then cross-examined be caused to be summoned to produce a document but turned a witness and anybody sworn on oath is liable to be cross-examined as a witness. The trial Judge is at liberty to comment on the oral and documentary evidence given by the witness. The comments on 2nd and 3rd DWs, who were witnesses and not summoned merely to produce documents and subjected to cross-examination made the learned trial Judge to comment on their testimonies as witnesses and not covered by section 192 Evidence Act.

The attack by appellants on the comments by learned trial Judge on the 2nd and 3rd DW, who were rightly treated as witnesses and not merely summoned to tender documents only lacked substance and merit leading to dismissal of the appeal on this ground. The arguments of the respondents on this issue are more convincing and proper interpretations of sections 192 and 193 Evidence Act, Cap. 112, Laws of the Federation of Nigeria.

Issue IV in respondents’ brief is similar to issue 7 in appellant’s brief of argument.

Appellants complained in ground 10 of the amended grounds of appeal No. 2 that the learned trial Judge at pages 64 and 65 recorded that:

“(i) Dr. Aremu had raised the issue as to whether:

He in fact further said that when the defendants were first intimated with the idea, they were initially happy in the belief that such a scheme would provide job opportunities for the residents in the neighbourhood.

(ii) However, it was in paragraphs 35 and 36 of the plaintiff’s statement of claim in which it is clearly shown that it was the plaintiffs, who in their pleadings, made the statement and their witnesses (especially 3rd plaintiff and 3rd PW) who gave evidence in support of the said statement.

(iii) The said statement made in paragraphs 35 and 36 of the plaintiff’s statement of claim was denied in paragraphs 15 and 16 of the defendant’s statement of defence.”

On appellant’s issue 7 at page 15 of appellant’s brief of argument appellants proffered this argument to show its frivolity. It is better to reproduce it:-

“(1) This shows a clear misconception of the facts by the learned trial Judge, which puts a completely different colour on the case which led to the decision arrived at by the learned trial Judge and this led to a miscarriage of justice. I submit that even on that alone the appeal should be allowed.”

I must confess that I am completely at a loss to understand this issue, which complaint does not form part of the judgment of the learned trial Judge, recorded at pages 114 to 188 of the record of appeal, no nexus was made between issue 7 and the judgment. The statement credited to the learned trial Judge no reference was made to the portion of the judgment, no wonder the argument on appellant’s issue 7 referred to above was scanty, terse and done half heartedly.

Respondents’ issue four was argued at page 8 of respondents’ brief of argument, it reinforced the point that nothing was in the judgment under attack. The statement had no effect on the judgment as it is not every error in judgment that vitiates the judgment Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) the issue based on the ground of appeal.

As stated above this issue 7 is not only vague and frivolous but also devoid of any merit as it is unmeritorious it is resolved against the appellants leading to the dismissal of the appeal on this ground.

Issues (ii) and (iii) in respondent’s brief of argument and issues 3, 4 and 6 in appellant’s brief of argument raised similar issues and are further encompassed that whether having regard to the pleadings, evidence and law the learned trial Judge was right to have granted all the claims and reliefs sought by the plaintiffs/respondents whilst he rejected the counter-claim of appellants based in evaluating the evidence on credibility of the witnesses.

Appellants contended that in view of both oral and documentary evidence the provision of section 45, Evidence Act enured to appellants in that all the boundaries and farm land were surrounded by grantees of the Oluwo of Iwo’s customary tenants for over a period of over 100 years and denied paying Ishakole to respondents as their customary tenants. The hunting rights and expeditions of respondents were not sufficient to grant declaration of customary right of occupancy, more especially as shown in exhibits A and N.

Thereby, the provision of section 45 of Evidence Act enured to appellants. Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) p. 182 at 199; Ededem Archibong IV v. Ntoe Asim Ita (1954) 14 WACA 520.

Appellants stated that to evaluate the evidence under the rule in Odofin & Ors. v. Mogaji & Ors. (1978) 1 LRN page 212 at 213, 1978 3/4 SC 91 at 98, the learned trial Judge did not weigh the evidence adduced before him properly by setting up the judicial imaginary scale. The contradictions in appellants’ evidence were not material contradictions to affect the value or diminish the weight of evidence against appellants as it is not all contradictions that affect the value of evidence Ikegwoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) page 146.

Respondents relied on hunting rights which at best was a bare licence and could never mature into ownership as such rights are revocable at will. On the payment of Ishakole, respondents did not establish the payment by appellants to respondent. The 2nd PW stated thus, at page 49 of the record:-

“I have not personally seen any of the defendants bring Ishakole to the plaintiffs in this case.”

Unlike non direct evidence of payment of Ishakole by appellants to respondents the 10th DW Prince Alade Lamuye, gave direct oral evidence of the payment of Ishakole by appellants to the Oluwo their overlord. The learned trial Judge had no legal basis to have believed and preferred the evidence of respondents’ witnesses to that of the appellants’ and their witnesses.

Appellants conceded that they did not plead for relief against forfeiture in statement of defence and counter-claim, though this was sought at the address stage of the learned counsel for appellants.

Initially, the learned trial Judge in his consideration found that the conduct of the appellants did not amount to misconduct to warrant forfeiture, yet he proceeded to grant the forfeiture when he ought to have taken into account the degree of inconvenience to the appellants considering the length of time spanning over 100 years they had been in possession and the improvements already made on the land Uwani v. Akom (1928) 3 NLR 19 forfeiture is not usually granted against a whole community being relief against an individual the relief against forfeiture ought to have been ordered Inisa v. Oshodi (1930) 10 NLR page 80.

Let me refer to paragraph 2 of the statement of claim which reads as follow:-

“(2) The defendants who are farmers, live at Olukotun village in Iwo District.”

to which paragraph 2 the appellants averred in paragraph 3 of amended statement of defence and counter-claim as follows:-

“3. The defendants admit paragraph 2 and aver that they the defendants came to the area later known as Olukotun Idi-Iroko in Iwo Local Government Area during the reign of Oluwo Lamuye between 1816-1906 when their great grand father, Akinlusi was granted a vast area of land including the land in dispute along Iwo/Oyo Road as customary tenants of the Oluwo.”

From the foregoing, appellants were sued individually though jointly and severally, they were not sued as a community. Appellants’ contention that relief against forfeiture ought not to have been granted as it was not usually granted against community must have been based on wrong principles and misconception that appellants constituted a community further consideration shall be given on the issue of relief against forfeiture after consideration of the argument of respondents on the issue of relief against forfeiture.

On issues (ii) and (iii) in respondent’s brief of argument, respondents at pages 6, 7 and 8, of their brief of argument submitted that the learned trial Judge rightly held that, as the grant by Oluwo the grantor of the land to appellants was not admitted by respondents the onus was on appellants to prove the title of Oluwo their alleged grantor Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) page 745 at 789. Appellants failed to plead not only the title of their alleged grantor but also led no evidence so found the learned trial Judge on this crucial finding to which regrettably appellants did not appeal against this finding which is fatal to appellant’s appeal Elias v. Omo Bare (1982) 5 SC 25. 57-58; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) page 393 at 431 and Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) page 520 at 546, the tendering only of exhibits O, P, Q and R, only no more were insufficient without supportive and convincing evidence.

In answer to the contention of appellants on the applicability of section 45 Evidence Act, to the facts of this case raised a rebuttable presumption of ownership to which respondents led satisfactory evidence to rebut the presumption rightly held by the learned trial Judge. The Forestry Law relied upon by the appellants did not assist them as they did not establish that under section 58(2) of the said Forestry Law that their rights were preserved. The issue should be resolved against appellants with the consequential dismissal of the appeal.

Issue 3 respondents’ brief of argument raised the evaluation of the evidence adduced by the parties to which after consideration Found and assessed the evidence of 2nd plaintiff, 6th, 7th, 8th PW, 9th PW, 10th PW and 11th PW to be consistent in line with the averments in the statement of claim established that their ancestors first settled on the land in dispute. Respondents proved acts of ownership and payment of Ishakole by appellants, and other acts of ownership by hunting rights were established by satisfactory, reliable and convincing evidence as found by the learned trial Judge. On the contrary, he found the evidence of appellants’ witnesses unreliable. Appellants’ witnesses were inconsistent and contrary to the pleadings. The learned trial Judge evaluated the evidence properly and ascribed proper weight to them. The contention of appellants that the learned trial Judge did not evaluate the evidence adduced before him be rejected as it lacked substance. As the learned trial Judge based his evidence on the credibility of the witnesses, the appellate court is handicapped to disturb such finding, so appellants’ appeal is unmeritorious and should be dismissed.

It is common ground and conceded by appellants that they did not plead relief against forfeiture and was only agitated during the address stage by learned Counsel for appellants, having not pleaded relief against forfeiture once the learned trial Judge accepted the traditional evidence he had no alternative than to grant the relief against forfeiture Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) page 435 at 452 to 453; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) page 574 at 533; Seaview Investment v. Munis (1991) 6 NWLR (Pt. 195) page 67 at 86, 88.

Appellant’s submissions and contentions on the issues above considered lacked merit and should be dismissed and urged the court to confirm and uphold the judgment of the learned trial Judge of the lower court of Oyo High Court.

The issue of relief against forfeiture under customary law was pronounced upon in the illuminating and instructive judgment of the Supreme Court in and held therein in Audu Makinde (Head of Family) and nine Ors. (For themselves and as head and representatives of Idota family of Otta v. Dawuda Akinwale and 10 Ors. (2000) 2 NWLR (Pt. 645) page 435.

2″4. On when relief of forfeiture available.

A customary tenancy is liable to forfeiture when the tenant commits any offence that can lead to forfeiture or that is incompatible with the customary tenancy such as the denial of the overlordship of the landowners. (P. 452, paras. F-G)

5. On effect of customary tenant denying title of the true overlord –

It is a most serious set of misbehaviour by a customary tenant to deny the title of the true overload to the land, which he is a tenant of. It is misbehaviour which is a firm ground for forfeiture of the tenancy and is said to be so as a widely accepted system. In the instant case, the evidence is clear that the respondents denied the overlordship of the appellants. (Dokubo v. Bob-Manuel (1967) 1 ALL NLR 113, Erinle v. Adelaja (1969) 1 NWLR 132; Taiwo v. Akinwunmi (1975) 4 SC 143; Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514; Odunsi v. Bamgbala (1995) 1NWLR (Pt. 374) 641; Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 referred to.) (Pp. 452-453, paras. H-A)

6. On effect of customary tenant claiming title against his overlord-

In land cases, where the tenant turns round not only to dispute the overlordship of the title holder but goes out of his way to claim title, he forfeits his right as a tenant and his possession of the land. In other words, once it is found that a customary tenant has committed an act of misbehaviour which entails forfeiture, and there is no relief sought against forfeiture, forfeiture becomes a matter of law for the court. The court has no discretion in such circumstances. In the instant case, the appellants claimed forfeiture, but the respondents did not seek relief against forfeiture.

Rather, they persisted in their adverse claim of title to the land (which was found to be in the appellants) and continued to deny the appellant’s overlordship. In the circumstance the trial court should have ordered forfeiture but did not. The appeal against the failure to do so should have succeeded had the court of Appeal reached a proper conclusion (P.453, paras. A-C)

Per EJIWUNMI, J.S.C. at page 456, paras. B-C:

In the case in hand, it is my humble view that the appellants clearly sought by their pleadings for an order of forfeiture against the respondents, and they duly also, established their reasons for asking for this order. The respondents did not seek for a waiver against the order. It follows therefore, that the court below was in error for not granting the order of forfeiture sought for by the appellants.

7. On Nature of misbehaviour that would render customary tenancy liable for forfeiture-

Forfeiture is the usual mode of determining a customary tenancy. The real basis of the misconduct of misbehaviour which renders the tenancy liable for forfeiture is the challenge to the title of the overlord.

This may be by:

(a) alienation of part of the land; or

(b) a claim of ownership; or

(c) refusal to pay the tribute due; or

(d) direct denial of overlord’s title by setting up a rival title in the customary tenant himself.

Although, the non-payment of rent or tribute is not necessarily inconsistent with the ownership of the overlord, the circumstances and the reasons for the refusal to pay tribute may determine whether there is a denial of the title of the overlord. (Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 referred to.) (P. 455, paras. D-F).

8. On whether forfeiture of customary tenancy automatic –

Even where there is an established misconduct of a customary tenant, forfeiture is not as of course or automatic. There is no such thing as automatic forfeiture. It merely makes the culprit liable to forfeiture at the will of the landlord. Hence, the landlord must take necessary steps to enforce his right of forfeiture for the misconduct in the court. (Oniah v. Onyia (1989) 1NWLR (Pt. 99) 514 referred to.) (P. 455, paras. G-H).

9. On need to plead forfeiture or relief against forfeiture –

The forfeiture claimed must be pleaded. Similarly, it is vital to plead the claim for relief from forfeiture. Failure to plead either is fatal to the claim. However, where a grantor claims for recovery of possession and pleads the grounds upon which the right to recovery is based, the action is not incompetent because forfeiture is not specifically claimed. Thus, the mere absence of the technical word forfeiture from the pleadings cannot be fatal in the circumstances where the nature of the claim is abundantly clear. (Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 referred to.) (Pp. 455-456, paras. H-B).

See also Ademola Oladipupo & 1 Or. v. Oyebamiji Olaniyan & 2 Ors. (2000) 1NWLR (Pt. 642) page 556 at 565 CA wherein it was held as follows:-

4. On need for boundaries of land in dispute to be ascertainable –

In a matter where a plaintiff seeks a declaration of the ownership of a parcel of land, he must establish the

precise boundaries of the land in order to be able to identify the land in dispute. A plaintiff who fails to prove and ascertain such land is bound to fail in his action. (Etim v. Oyo (1978) 6-7 SC91; Udofia v. Afia (1940) 6 WACA 216 referred to. (P. 565, paras. E-H).

7. On Termination of a customary tenancy –

A customary tenant is ipso entitled to possession of the land granted to him and although he is liable to forfeiture of such rights when he denies the title of his landlord or commits a serious misconduct, yet his rights are not determined until operation of forfeiture (Akinkuowo v. Fafimoju (1965) NMLR 349; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 referred to. (P. 567, paras. D-E).

Applying the above to the instant appeal the learned trial Judge stated at pages 184 line 25 to page 185 line 20 of the records of appeal as follows:-

“All these notwithstanding, partly because of the fact that the defendants were not initially guilty of any misconduct before the plaintiffs sought to recover portions of the land in dispute from them …(See Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 at 533. Thus, much as I would have been inclined to grant the 304 defendants’ relief against forfeiture. I am bound by the foregoing decision of the Supreme Court and since the defendants have failed to claim the relief, I have no alternative but to grant the order of forfeiture sought by the plaintiffs.”

The learned trial Judge in granting the relief against forfeiture applied the rule that parties are bound by their pleadings as unpleaded facts go to no issue. Also the rule of law that a court shall not grant a relief not sought from the court or grant more than what is claimed.

From the encompassed issue the attack or complaint of appellants was wrongful evaluation of the evidence adduced before the court, that a proper assessment should have led to the dismissal of respondents’ claims for failure to establish their root of title and non concrete and convincing evidence that appellants paid Ishakole or tribute to respondents whilst 10th DW categorically confirmed payment of Ishakole by appellants to 10th DW’s ancestors. The learned trial Judge wrongly believed and rejected appellants’ testimonies in preference to that of the respondents, so Court of Appeal should reverse the judgment as respondents failed to discharge the onus placed on them whilst appellants proved their counter-claim by preponderance evidence of probability thereby the Court of Appeal should dismiss respondents’ claim as it dismissed rightly the claim for damages of the respondents whilst it should reverse the dismissal of appellants’ counter-claim and award damages as claimed by appellants.

Respondents submitted that at pages 172 to 183 the learned trial Judge evaluated evidence of the witnesses for both the respondents and appellants. Previously in this judgment it was stated that the learned trial Judge found the witnesses for respondents to be truthful witnesses, whilst he found the witnesses for appellants to be unreliable. As the findings were based on credibility of witnesses this court is handicapped to disturb such findings, this court should affirm the conclusion and judgment of the learned trial Judge. Unless or except that the findings of the learned trial Judge were perverse, the appeal court will not disturb such finding as decided with reliance on Odofin v. Ayoola (1984) 11 SC 72. 86-87; Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) page 92 at 113-14; Ogbuehi v. Government of Imo State & Ors. (1995) 9 NWLR (Pt.417) page 53 CA.

It is trite law that evaluation and ascription of weight to the evidence is primarily the function and duty of the learned trial Judge. The learned trial Judge as stated above based part of the judgment by believing especially the testimonies of 2nd PW, 2nd plaintiff, 6th PW, 7th and 11PWs in preference to the appellants’ witnesses as stated partly in the judgment at pages 175 lines 7 – 9, 175 lines 15 – 19, 176 lines 2 to 17, 13 to 17,23 -32,17 lines 10-14, 26-29,178 lines 7 to 9 page 179 lines26 – 31, 184 lines 15 to 25.

Respondent’s witnesses in preference to the appellants’ witnesses, who were found to be untruthful and unreliable witnesses. The attitude of the Court of Appeal on credibility of witnesses by the lower court is well settled as evaluation and ascription of weight is the sole business of the trial Judge and where the judgment is based on credibility of witnesses the appeal court is handicapped, unless it can be established that the learned trial Judge did not take the advantage of watching the demean ours of the witnesses and hearing and seeing them Ebba v. Ogodo (1984) 1 SCNLR 372. Per Eso, J.S.C., thus:-

(d) Where the decision arrived after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence then the Court of Appeal should appreciate that the following will be relevant:-

(i) Credibility of witnesses based on demeanours of the witnesses only:-

Here, the trial court is the sole Judge as the observation of the demeanour of witnesses has to be peculiar and exclusive to the trial court, which advantage is not and can never be available to the appellate court.

(ii) Credibility of witnesses based on factors other than demeanour:-

The Court of Appeal should examine the factors which the trial court examined as a result of which is made the inference which led to its finding and determine whether that the trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the interference that could reasonably be made by a just and reasonable tribunal from these same factors.

This court has time without number emphasized that it is no business of the Court of Appeal to substitute its view of the evidence for that of the learned trial Judge and I will find it again necessary to point out that miscarriage of justice will definitely result from adopting such a course of action when it is unwarranted the need to ensure that justice is not miscarried should always dominate the attitude and thinking of appeal courts when dealing with appeals raising questions of fact.

See further Victor Woluchem & Ors. v. Chief Simeon Gudi & Ors. (1985) 5 SC 319; Edward Ukaegbu Nwokoro & Anor. (for themselves and as representing the family of Amarum Amaediba Nkpa v. Ezekiel Nwosu & 5 Ors. (for themselves and as represeting Agbue family in Umualaukocha Amaediba family) (1994) 4 NWLR (Pt. 337) page 172 CA; Musa Sha (Jnr.) & Anor. (for themselves and on behalf of Lo-Kwei family) v. Da Rap Kwan and 3 Ors. (2000) 8 NWLR (Pt. 670) page 685 SC; Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 CA; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) page 127 CA; Sosanya v. Onadeko (2000) 11NWLR (Pt. 677) page 34 CA; Wilson v. Oshin (2000) 9 NWLR (Pt. 673) page 442 SC; Oduwole v. Aina (2001) 17 NWLR (Pt. 741) page 1 CA.

Applying the above principles, I have seen no reason and justification from the printed evidence that the learned trial Judge failed to take advantage of seeing and hearing the witnesses before making his finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same facts. I therefore, see no legal justification in law and facts to interfere with the reasoning and conclusion on the findings of the learned trial Judge having seen, heard, and watched the demeanours of the witnesses that the appellants and their witnesses were untruthful and unreliable. The learned trial Judge advanced reasons in drawing the inference, it is my view that from the printed record of appeal, the learned trial Judge applied rightly the setting up of the imaginary judicial scale in the rule in Mogaji v. Odofin (1978) 1 LRN (1978) 3/4 SC 91, therefore, the attack of the appellants on the judgment of the learned trial Judge that he did not evaluate the evidence before him properly are baseless and are hereby, declared as unmeritorious leading to resolving issues 4 and 5 in appellant’s brief of argument against the appellants, with the consequence of the dismissal of the appeal on the said issues as lacking in substance.

Having resolved all the issues raised by appellants in this appeal against appellants the appeal is dismissed for the reasons adumbrated above. Following the dismissal of that? appeal the judgment of Oyo High Court delivered by Hon. Justice Ademakinwa on 15th Feb., 1989, is hereby affirmed and confirmed. As a result the respondents are entitled to the cost of this appeal, which acting judicially and judiciously based on the legal principle that costs follow the events and awarded to compensate the successful party and not punish the unsuccessful party. I fix the cost of N5,000.00 (Five thousand Naira), in favour of respondents against the appellants.

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Other Citations: (2002)LCN/1070(CA)