J. A. Ilori & Ors. V. Mr. Musibau I. A. Tella & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment delivered by Bakre, J. while sitting at the High Court of Justice, Abeokuta in Ogun State of Nigeria on 15th June, 1999. The learned trial judge granted the reliefs claimed by the respondents as plaintiffs at the lower court against the appellants as defendants thereat.
The claims of the plaintiffs, made jointly and severally against the defendants read as follows:
“1. Declaration that the plaintiffs are entitled to the Statutory Right of Occupancy over a piece of land at Gbangba, Ijaiye, Abeokuta to be shown on a survey plan to be filed later.
- N2000.00 damages for trespass committed by the defendants on the said land.
- Perpetual injunction restraining the defendants, their agents, servants or privies from committing any further acts of trespass on the said land.”
Put briefly, the plaintiffs’ case was that their ancestor, Labulo settled on the land in 1862 after the Ijaiye war. The contention of the plaintiffs was that they heard that their land was being trespassed upon by the defendants in 1991. They objected and took the defendants to the Ijaiye Council of Chiefs. But the defendants refused to attend the call of the Chiefs. The plaintiffs maintained that the Chiefs directed them to continue to work on the land.
The defendants, on their part, maintained that they settled on the land through Lamodi in 1862 after the war. They testified that their fore-bear, Henry Ilori, put up a house on the land in 1864. Since then, they have been enjoying peaceful and quiet environment without any disturbance or interference until 1994 when the plaintiffs first challenged them on the land. They contend that the plaintiffs were merely their in-laws in Gbangba compound. They say that they put structures on the land to the knowledge of the plaintiffs who, according to the defendants, are caught by the Doctrine of Laches and Acquiescence. The 1st defendant’s family sold parts of the land to the 2nd – 3rd and 4th Defendants in 1977 or thereabout and they too, had put structures on the land to the knowledge of the plaintiffs.
The learned trial Judge was carefully addressed by both learned counsel to the parties. In his reserved judgment delivered on 15th June, 1999, the learned trial judge granted all the reliefs sought by the plaintiffs and awarded costs of N5,000 against the defendants.
The defendants felt unhappy with the stance of the learned trial judge and have appealed to this court. The notice of appeal dated 31st August 1999 and filed on 1st September, 1999 carried seven grounds of appeal.
The appellants’ brief of argument was deemed duly filed on 21-10-02 by leave of court. The respondents’ brief of argument was filed out of time by leave of court on 26-9-03. Therein, learned counsel for the respondents put up a notice of preliminary objection in which he challenged the competence of the appeal. The same precipitated a lengthy reply brief of argument filed on behalf of the appellants on 8-3-04 with the leave of court.
On 2nd March, 2006 when the appeal fell due for hearing, learned counsel for the respondents requested that the preliminary objection be taken and determined first. The respondents did not dose over same. That is how it should be. Since the respondents raised objection to the competence of grounds 1-6 (both inclusive) of the grounds of appeal, it is apt to reproduce them along with their particulars for ease of reference and adequate consideration. They read as follows:
“Grounds of Appeal:
(1) The learned trial Judge erred in law and misdirected himself in holding that the principle of law laid down in Kojo II v. Bonsie (1957) 1 WLR 1223 at 1226 by Lord Denning did not apply to the instant case in respect of the conflict of evidence of the traditional History presented by the parties.
Particulars:
(a) There is abundant evidence before the court that while the plaintiff traced their evidence of title to Labulo in 1962 (sic) the defendants traced title to Henry Adedapo Ilori, Adeniyi Ilori and Lamodi.
(b) There is abundant evidence of exercise of acts of ownership and possession from the period of 1962 (sic) to the present time by the defendants/appellants.
(2) Error in law:
The trial Judge erred in law and misdirected himself in the application of as legal authority in proof of the traditional evidence of title to the land in dispute when he held as follows:
“I have compared the traditional history of the two competing parties. One traced his title to Labulo (that is, the plaintiff) while the defendants traced their title to Henry Ilori, Adeniyi Ilori or Ojo Gbangba. That Lamodi brought Dolapo Ilon to Ijaiye. That is the nearest as put by defendants. I saw Exhibit ‘E’ History of Abeokuta where at page 243 it was shown among principal events that Lamodi was killed in 1829. This knocks the bottom out of the history of the defendants.
They do not appear to know who even brought their ancestor to Ijaiye. Who found the land in dispute. The claims of the defendants appear to be purely superficial and based on wrong premises. They are also inconsistent”; when:
(a) a vivid perusal of the same shows clearly and without doubt that Osota Lamodi, the son of Lamodi: succeeded Lamodi upon his death in 1829.
(b) A vivid perusal of the same reveals that Osota Lamodi was one of the people and Chiefs who took people to and settled in Ijaiye (a place in Abeokuta).
(c) A further perusal of the evidence as given by the defendant shows that when the defendant stated that Lamodi brought Henry Oladapo Ilori, Adeniyi Ilori and founded Gbangba, they could not be referring to Late Lamodi but his son, Osota Lamodi.
(3) Error in Law:
The learned trial Judge erred in law and misdirected himself in relying on omission to mention the first name of Lamodi (that is Osota), which amounts to a weakness, in finding for the plaintiff, when he further held after the holdings in Ground (II) thereof as follows;
“The story of the plaintiffs appears more probable. The plaintiff showed by history how the ancestors of the two parties came to be connected with Ijaiye while the defendants denied the existence of the plaintiffs’ grandparents who descended through Labulo to Omileye to Mustapha. I prefer the plaintiffs’ historical evidence.”
(4) Error in Law:
The trial Judge erred in law and misdirected himself in his failure to apply the Rule in Kojo vs. Bonsie (supra) which led him to conclude in error that the defence of the defendants failed, when:
(a) There was unchallenged evidence that the 1st defendant, J. A. I1ori, was in possession of large portion of the land.
(b) There was unchallenged evidence from D.W.1, D.W.2, D.W.3 and D.W.4 to confirm that the defendants have been in control and possession of the parcel of land from 1862 till date.
(c) There was unchallenged evidence that the plaintiff first seen (sic) on the land in 1986.
(d) There was unchallenged evidence that the plaintiffs’ grinding machine was brought unto the land after the foundation of the Church had been erected.
(e) There was abundant and unchallenged evidence that the plaintiff operated his machine on a small portion of the land.
(5) Error in Law:
The learned trial Judge erred in law and misdirected himself when he stated that the doctrine of laches and acquiescence raised by the defendants could not avail them or did not apply when he held as follows:
“The story of the 1st plaintiff and 3rd PW would satisfy any reasonable tribunal that they have not rested upon their rights. They have physically driven away the attended (sic) sellers. They have taken issues of the land before the Ijaiye Council of Chiefs before they eventually came to court. These facts have remained uncontroverted. I am therefore obliged to accept them”: when;
(a) There is abundant evidence on record showing that the 1st plaintiff stated that Labulo was the father of his mother’s father and first settled on the land in 1860- 62.
(b) There was evidence on record which showed that the 1st defendant had at all times been in possession of the land.
(c) There was evidence on record even from the plaintiff which confirmed that Olawoyin begat Ilori; Olawoyin had Church on the land; Olawoyin’s house is on the land; etc all of which the plaintiff was aware.
(d) There was evidence on record which showed that the plaintiffs only challenged the defendants on the land in 1994 by taking them before the Ijaiye Council of Chiefs headed by PW6 (Chief Oyalowo).
(6) Error in Law:
The learned trial Judge erred in law and misdirected himself in finding for the plaintiffs when he failed to properly evaluate the evidence before him as laid down in the principle of imaginary scale of justice, when:
(a) He failed to examine vividly the evidence of traditional history given by the plaintiff along-side that of the defendants.
(b) He misdirected himself, cut himself short in the mid-way into conclusion that Lamodi died in 1829 as a result of his failure to read the entire history of Lamodi, his successors and their settlement at Ijaiye, stated in exhibit “E” (History of Abeokuta by A. K. Ajisafe).
(c) He failed to observe contradictions and inconsistency in the historical evidence given by the plaintiff, which plaintiffs’ evidence even confirmed some facts in historical evidence proffered by the defendants.”
In support of the preliminary objection taken at the appropriate moment, it was submitted on behalf of the respondents that ground 1-6, both inclusive, of the grounds of appeal as reproduced above conjunctively allege error in law and misdirection on the part of the learned trial Judge. Learned counsel for the respondents contended that no particulars or sufficient, coherent, precise and direct particulars attended any of them to properly ground the allegations stated therein. Learned counsel felt that the provision of Order 3 rule 2(2) of the Court of Appeal Rules, 2002 was not complied with. He cited the case of Adeleke v. Asani (2002) FWLR (Pt. 1-6) 982 at 995.
Learned counsel felt that the purported particulars in some of the grounds of appeal have no nexus or connection, bearing or relationship with the grounds in any manner whatsoever. He cited Egesie v. Elele (2000) FWLR (Pt. 10) 1677 at 1685; Nwadike & 2 Ors. v. Cletus Ibekwe & 2 Ors. (1987) 4 NWLR (Pt. 67) 718 at 744; Okeke Amadi v. Okeke Okoli (1977) 7 SC 57 at 58; Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372 at 378-379; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 279; Nwako v. Governor, Rivers State (1989) 2 NWLR (Pt. 104) 470; Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at 744; Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86 at 96.
Learned counsel submitted that grounds 1-6, both inclusive, are incompetent and should be struck out. He observed that ground 7 of the grounds of appeal being an omnibus ground is ordinarily competent. He however opined that it has been rendered incompetent as it has been contaminated by ground 6. He felt that issues which were predicated on the incompetent grounds cannot stand as they hang in the air. He cited the case of Isokwa Motors v. Union Bank (1996) 9-10 SCNJ 294 at 309. He had axe to grind with issue v formulated on behalf of the appellant since it was couched from incompetent ground 6 and competent ground 7 according to learned counsel. He urged that the issue should be discountenanced as it got contaminated by incompetent ground 6 of the grounds of appeal. He again referred to Bereyin v. Gbobo (supra) at page 319. He finally urged that the appeal should be dismissed.
On his own part, learned counsel for the appellants submitted that where error of law or misdirection is made a ground of appeal, the particulars of error of law or misdirection must be given. The particulars, however, need not be separately set out. Such may be embodied in the ground itself provided the ground is framed in such a way as to leave no one in doubt of the errors being complained about. He referred to Osawaru v. Ezeiruka (1978) 6-7 SC 135; N.I.P.C. v. Thompson Organisation (1969) 1 All NLR 138 at 142; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267, (1987) NSCC 117 at 130; Koya v. U.B.A. (1997) 1 NWLR (Pt.481) 251, (1997) 1 SCNJ 1 at 11-12.
Learned counsel felt that it is no longer the law that once a ground of appeal alleges error in law and or misdirection, the passage of the judgment concerning same must be quoted. He opined that inference can be made from the attendant particulars. He cited Funduk Engineering Ltd. V. James McArthur & Ors. (1995) 4 NWLR (Pt.392) 640, (1995) 4 SCNJ 240.
Learned counsel further submitted that ground 7 of the grounds of appeal which is an omnibus ground requires no particulars as its particulars are inherent in it. He cited the cases of Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101 at 115 and Sparkling Breweries Ltd. v. Union Bank of Nigeria Plc. (2000) 15 NWLR (Pt.737) 539, (2001) 7 SCNJ 321 at 340. He observed that if some grounds are found to be incompetent, such grounds can be struck out and the appeal would be heard based on the remaining competent ground; if any. He referred to Order 3 Rule 2(7) of the Court of Appeal Rules, 2002 and the cases of Olanrewaju v. Ogunleye (1997) 2 NWLR (Pt.485) 12, (1997) 1 SCNJ 144 at 152; Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16, (1998) 7 SCNJ 367 at 374; Obala of Otan Aiyegbaju v. Adesina (1999) 2 NWLR (Pt. 590) 163, (1999) 2 SCNJ 1 at 22-23.
Order 3 Rule 2(2) of the Rules of this Court provides as follows:
“If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
From the above, it appears to me that a ground of appeal should relate to error in law or misdirection. Such should ordinarily be made disjunctively and not conjunctively; it seems from the tenor of the rules. In Nwadike v. Ibekwe (supra) at page 744, Nnaemeka-Agu JSC maintained pungently that a ground of appeal cannot be an error in law and a misdirection at the same time. By their nature one ground of appeal cannot be two. For the word ‘misdirection’ originated from the legal and constitutional right of a party to a trial by a jury to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of the tribunal.
To my mind, the rule is not a strait-jacket one as envisaged by the learned counsel to the respondents. Where a ground of appeal alleges error in law and misdirection, it is necessary that the particulars of same must be given. The particulars may even be embodied in the ground itself provided the ground is framed in such a way as to leave no one in doubt of the errors complained about. See Atuyeye v. Ashamu (supra); Koya v. U.B.A. (supra). Stricto sensu, it is no longer the law that once a ground of appeal alleges error in law and or misdirection the passage of the judgment concerning same must be quoted. Quoting of the passage can be dispensed with once there is evidence stated in the particulars which disclose validity of the complaint, or from where the complaint can be discerned or inferred. See Funduk Engineering Ltd. v. James McArthur & Ors. (supra).
With the above as an adequate guide, an appellate court should strive to determine an appeal brought before it on the merit. This is the current vogue. Let me now give the six grounds of appeal as reproduced above, a careful consideration with a view to ascertaining which ground is competent or otherwise. In other words, which of the grounds must stand for being competent or fall for incompetence?
Ground 1 of the grounds of appeal complained that the learned trial Judge erred in law and misdirected himself in holding that the principle of law laid down in Kojo II v. Bonsie (1957) 1 WLR 1223 at 1226 did not apply to this case in respect of the conflict of evidence of the traditional history presented by the parties. This is amply supported by particular (a) which says that ‘there is abundant evidence before the court that while plaintiffs traced their evidence of title to Labulo in 1962 (sic) the defendants traced title to Henry Adedapo Ilori, Adeniyi Ilori and Lamodi. Ground 1 to that extent is competent.
Grounds 2 and 3 of the grounds of appeal deal with complaints which are not borne out of the record of appeal. There is no mention of Osota Lamodi by the appellants in the statement of defence and evidence at the lower court. No further evidence was sought to be adduced. The grounds were based on speculation by appellants’ new counsel. Same was geared at causing confusion and was not right. Grounds 2 & 3 are hereby struck out for being incompetent. Ground 4 is incompetent. Complaint of failure to apply the Rule in Kojo v. Bonsie was not attended by relevant particulars of rival plausible historical evidence of title by both sides. Ground 4 is struck out for incompetence.
Ground 5 relates to complaint touching on laches and acquiescence. Same can be inferred from particular (c) which says that Olawoyin had church on the land; Olawoyin’s house is on the land, all of which the plaintiff is aware. As well, particular (d) says the plaintiffs only challenged the defendants on the land in 1994 by taking them before the Ijaiye Council of Chiefs. Ground 5 is competent.
Ground 6 is rooted in speculation. The particulars are imprecise. Talk of ‘successors’ to Lamodi in exhibit E was not pleaded. There is no evidence on same at the trial court. It is hereby struck out. There was no objection to ground 7 which is the omnibus ground of appeal. It remains intact.
In short, grounds 1, 5 & 7 of the grounds of appeal are valid and competent and this appeal must stand or fall on issues couched from them by the parties herein. Grounds 2, 3, 4 and 6 of the grounds of appeal are hereby struck out. So also, issues (ii) & (iii) couched from them must be; and are hereby discountenanced.
The three subsisting issues which fall for determination couched by the appellants are Nos. (i), (iv) and (v). They read as follows:-
“(i) Whether the learned trial Judge, Bakre, J. was right in holding that the principle of law laid down in Kojo v. Boosie (1957) 1 WLR 1223 at 1226 by Lord Denning did not apply to the instant matter in respect of the conflict of evidence of the traditional history presented by the parties.
(iv) Whether there were sufficient evidence before the trial court which could aid and compel the application of the doctrine of laches and acquiescence as part of the defences promptly, regularly and properly raised by the defendants.
(v) Whether the learned trial judge properly and conclusively evaluated the evidence put up by the plaintiffs and the defendants as required of him under the principle of imaginary scale of justice before finding for the plaintiffs.”
In a concise manner, the following three issues were distilled on behalf of the respondent:-
“1. Whether the totality of the evidence of traditional history led by the parties and relied upon in proof of their case at the trial court were of such nature and quality that the rule in Kojo v. Bonsie ought to have been applied thereto and, without more, the court rightly gave judgment in favour of the respondents.
- Whether from the evidence before the trial court the doctrine of laches and acquiescence is applicable in this case as a defence available to the appellants.
- Whether the trial judge’s evaluation of the evidence led by the parties and their witnesses in this suit before his decision can be rightly questioned.”
Arguing issue (i), appellants’ counsel observed that it is not in doubt from the pleadings and evidence adduced that both parties relied at the trial on evidence of traditional history as the method of proof of their respective titles. He maintained that while the plaintiffs traced their title to Labulo as far back as 1862, the defendants traced their own title to Henry Adedapo Ilori, Adeniyi Ilori and Osota Lamodi. He submitted that the learned trial judge ought to have applied the principle of the rule enunciated in Kojo v. Bonsie (supra) by Lord Denning. He further referred to the cases of Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393, (1985) 7 SC (Pt.1) 59 at 148-156; Obioha v. Duru (1994) 8 NWLR (Pt. 365) 361, (1994) 10 SCNJ 48 at 57; Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534, (1997) 6 SCNJ 67 at 79.
Learned counsel felt that the mention of Lamopi in exhibit E could not be referring to him but to his son Osota Lamodi who survived him. Learned counsel urged that a retrial should be ordered before another judge of the High Court. He cited Duru v. Nwosu (1989) 4 NWLR (Pt.113) 24, (1989) 7 SCNJ 154 at 159; Ayoola v. Adebayo (1969) 1 All NLR 159; Bakare v. Apena (1986) 4 NWLR 1 at 16-17.
Learned counsel for the respondents agreed that the parties relied on traditional evidence as the method of proof of their respective titles. He maintained that such traditional history must be conclusive and cogent. He cited Aseimo v. Abraham (2001) 16 NWLR (Pt. 738) 20, (2001) FWLR (Pt. 63) 72 at 79; Nwabuoku v. Onwordi (2002) 3 NWLR (Pt. 755) 558, (2002) FWLR (Pt. 123) 337 at 356; Balogun v. Akanji (1994) 4 NWLR (Pt. 341) 715 at 737; Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 117, (2000) FWLR (Pt. 15) 2620 at 2633; Akinloye v. Eyiyola (1968) NMLR 92; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 388.
Learned counsel submitted that the rule in Kojo v. Bonsie is not applicable to this case as the learned trial judge tried the case based on the pleadings of the appellants and their evidence. He felt that the lower court could not embark upon speculation with respect to Osota Lamodi succeeding his father who died in 1829.
It is the primary function of a trial court to make findings of fact on evidence adduced before it and ascribe due probative value to it. An appellate court will only interfere if conclusion reached is perverse. Such can only be done if the demeanour of witnesses is not in point. Refer to Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265.
Generally, there is a presumption that the decision of a trial court on facts is correct. An appellate court ought not to substitute its own views of fact for those of the trial court which heard evidence and watched the demeanour of witnesses. See Ebba v. Ogodo (1984) 1 SCNLR 372; Ohanaka v. Achugwo (1998) 9 NWLR (Pt. 564) 37.
A trial court, in evaluating evidence, must put all evidence with probative value adduced by each side on an imaginary scale to see which side the scale tilts. See section 135 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990; Mogaji v. Odofin (1978) 4 SC 91 at 93; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 .
Parties to this appeal herein are ad idem that each side relied on traditional history in support of its case. Such is the first mode of proof of title to land as dictated by the Supreme Court in Idundun v. Okumagba (1976) 9-10 SC 277. See also Piaro v. Tenalo (1976) 12 SC 31.
From the evidence before the lower court based on pleadings by both sides, the learned trial Judge found that the land originally belonged to Labulo; then to Omileye and Mustafa before it devolved to the plaintiffs.
For the appellants as defendants, the learned trial Judge found that the defendants maintained that Lamodi brought Dolapo Ilori to Ijaiye in 1862. He found that from page 243 of Exhibit E, History of Abeokuta by Ajisafe, it was shown among the principal events that took place that Lamodi was killed in 1829. He felt that this knocks the bottom out of the history of the defendants, who do not appear to know who brought them to Ijaiye. He found their case as being superficial and based on wrong premises.
Learned trial Judge found the story of the plaintiffs to be more probable and preferred same. The appellants who presented a bad case before the trial court decided to play pranks in this court. Learned counsel for the appellants felt that the counsel who conducted the case at the lower court goofed by not mentioning the name of Osota Lamodi and that the learned trial judge should have gone further to read unspecified portions of exhibit E not referred to in the open court. In effect, learned counsel wanted the trial Judge to embark upon investigation outside the court. Perhaps, he should be told that it is not the duty of a court to embark upon cloistered justice by making enquiry into the case outside the court, not even by examination of documents which were in evidence when same had not been examined in the open court. A judge is not an investigator. He should conduct a case based on pleadings and evidence adduced in open court. He should not speculate. See Duriminiya v. C.O.P. (1961) N.N.L.R. 70 at P. 74. Even then, appellants’ counsel who was bent on having a retrial showed no justifiable reason for same.
I am at one with the learned trial judge in his appraisal of evidence placed before him by the parties based on their respective pleadings. I am unable to tamper with his findings of fact. There is no gainsaying the fact that the appellants banked on an impossibility. Lamodi who died in 1829 could not have settled appellants’ forebear – Henry Ilori on the land in 1862. The appellants’ case thereby crashed. See Ohiaeri v. Akabeze (1992) 2 NWLR (Pt. 221) 1. The evidence relied upon by the appellants is not reliable and credible. There is no conflict of traditional history to warrant the application of the rule in Kojo v. Bonsie.
On issue No. IV, appellants’ counsel contended that the learned trial judge failed to properly consider the defences of laches and acquiescence, long possession and standing by. He felt that same availed the appellants as they were established. He referred to Inspector Kayode v. Alhaji J. A. Odutola (2001) 11 NWLR (Pt.725) 659, (2001) 5 SCNJ 471; Fasesin v. Oyerinde (1997) 11 NWLR (Pt.530) 553, (1997) 12 SCNJ 43.
The learned trial judge examined the doctrine of laches and acquiescence “half-heartedly’ raised by the defendants’ counsel. He found that the respondents did not rest upon their rights. They physically drove away intruders who operated as sellers on the land. They took issue of the land to Ijaiye Council of Chiefs before they eventually came to court.
Put candidly, the appellants are contesting title to the land in dispute as owners of the same by an alleged original grant to their ancestor, Henry Adedapo Ilori. The equitable defences were not pleaded expressly with particulars. See Jiwul v. Dimlong (2002) FWLR (Pt. 114) 481.
Let me say it here that since the appellants failed to show plausible and credible root of title, they cannot be heard to foray into acts of ownership through equitable defences. Where law is at play, equity must remain on the side line. It is on established title that act of ownership can be built. Good title is the quo warranto for act of ownership. See Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263. It is further the law that unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to a valid ownership. See Mogaji v. Cadbury Nig. Ltd. (supra) at P. 431. The learned trial Judge was right in his treatment of point touching on larches and acquiescence. I am unable to see my way clear in tampering with his findings.
By issue No. (v) the appellants contend that the entire evidence of the parties was not properly evaluated by the learned trial judge. Learned counsel referred to Mogaji v. Odofin & Ors. (1978) 4 SC 91 at 93-94 and Owosho v. Dada (1984) 7 SC 149 at 167-168.
On behalf of the respondents, learned counsel felt that the learned trial judge carried out his job properly by making painstaking findings. He cited, inter alia, Nduchie v. Ojiakor (2002) FWLR (Pt. 99) 1043 at 1051- 1052; Woluchem v. Gudi (1981) 5 SC 291 at 295.
It is clear to me that based on the pleadings of the parties and the evidence adduced at the lower court, the learned trial judge carefully and properly appraised same. There is no perverse finding that I can trace. The traditional evidence of the respondents is solid and credible. That of the appellants is neither plausible nor credible. When the evidence on both sides is placed on an imaginary scale, the respondents should have upper hand. See Mogaji v. Odofin supra; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413. See section 135 Evidence Act, 1990.
The appellants’ counsel was pressing for an order of retrial with uncouched motive. The appellants’ case rested on shifting sand. In Morenikeji v. Adegbosin (2003) 8 NWLR (Pt. 823) 612, (2003) 4 SCNJ 105 at 126, the Supreme Court made it clear that an appellate court will order a retrial where there has been such an error in law or irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appellate court to say there has been no miscarriage of justice and there are no special circumstances as would render it oppressive to put the parties on trial a second time. I am unable to pinpoint any error in law or irregularity in procedure perpetrated by the learned trial judge in his conduct of the trial. An order of retrial is not desirable or warranted. I refuse to be drawn into such a melee.
Having resolved all the issues against the appellants, I come to the conclusion that the appeal lacks merit. It is hereby dismissed as I affirm the judgment of the learned trial judge handed out on 15th June, 1999.
The Appellants shall pay N5,000.00 costs to the Respondents.
Other Citations: (2006)LCN/1981(CA)
