Momodu Olubodun & Ors. V. Oba Adeyemi Lawal & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C

This is an appeal against the judgment of the Court of Appeal (Ibadan Division) delivered on the 8th of May 2001. Suffice it to say that by that judgment, the court below dismissed the appeal of the present appellants which they had lodged against the judgment of the trial court which was given against them, Before I go on, I will like to preface this judgment with the background facts leading to the present appeal under consideration.

The action leading to the present appeal was originally commenced in the Customary Court Grade 2 No. 2 sitting at Sagamu, Ogun State on the 21st May 1985. But by a letter dated 26th July 1985 written by the Registrar, Ijebu Remo Grade 1 Customary Court, Sagamu addressed to the Principal Registrar, High Court of Justice, Sagamu, the entire case was transferred to the High Court of Justice, Sagamu. In that court, pleadings were ordered and the parties filed and exchanged their respective pleadings.

With the leave of court, both parties effected several amendments to their respective pleadings. The final amended pleadings upon which the plaintiffs (hereinafter referred to as the respondents) predicated their case is the 2nd further amended statement of claim and plan dated 1st March 1994 but filed on 15th March 1994. Of course, an amended reply by the order of court dated 15th March 1994 and filed the same date in response to the 4th amended statement of defence of 1st to 6th defendants also constituted the basis on which the respondents/plaintiffs based their case. The defendants (hereinafter referred to as the appellants) predicated their defence on the process captioned 6th amended statement of defence. By paragraph 37 of the 2nd Further amended statement of claim and plan, the plaintiffs/respondents claimed against the defendants/appellants as follows: –

“(1) declaration that they are entitled to Certificate of Occupancy or Customary Right of Occupancy over the land in dispute more particularly described in Exhibit E tendered in this suit.

(2) N1,000.00 damages for trespass committed by the-defendants, their agents and/or servants when they jointly and severally entered the disputed land in exclusive possession of the plaintiffs on or about the 12th day of February 1985 without the consent and/or authority of the plaintiffs; and

(3) perpetual injunction restraining the defendants, their agents, servants’ and/or privies from further entry into the said land.”

The root of title of the plaintiffs/respondents to the land in dispute said, to be situated at Agura a contraction of the word “Ago-Ora” originally given to the land because of its fertility, is founded on “SETTLEMENT”, Paragraphs 3, 5 and 6a of the 2nd further amended statement of claim and plan, which are the foundation of this crucial averment, read: –

Para 3

“One Ladoje (male) one of the children of late Oba Akarigbo Koyelu left Ofin homestead very many years ago to settle on and cultivate a parcel of farmland then known as “Ago-Ora” because of the fertility of the farmland.”

Para 5

“At about the time of this settlement by Ladoje, one Jumilu, then Chief Losi of Ofin homestead, also settled in another part of the land and used same for his own farming purposes.”

Para 6a

“This settlement by Ladoje has among its boundaries the farmland of the Aroba family from Ofin homestead who up till today are still in possession and are still cultivating – their said farmland and are also exercising exclusive possessory rights over same.”

– (italics for emphasis)

The defendants/appellants did not counter-claim. At the trial court, both parties led evidence in support of their respective averments in their pleadings. In the course of leading evidence, the plaintiffs/respondents called as PW1 a Prince Adesoji Olusesi who held himself out as the Head of Personnel, Sagamu Local Government; tendered as Exhibit A, a letter dated 30/11/83 written by His Royal Highness, Oba Moses Awolesi, the Akarigbo of Remo Land. The salient contents of Exhibit A are as follows:-

“It has long been established that the vast area of land between Okun-Owa, bounded by Egba Land and Ijebu-Ode stretching to the lagoon at Ipaomola belongs to the Akarigbo of Ijebu-Remo the Treaty signed by the then Imperial Power; the British Government with the Akarigbo, Oba Oyebajo and his chiefs on 4th August 1894 refers, Oladoje, son of Akarigbo Koyelu, first settled on the land (Ago Ora or Agura). He was put there by his father Oba Akarigbo Koyelu for farming purpose, of which was then known and is still called Agura Community Land.”

Another crucial witness called in support of the plaintiffs/respondents’ case was PW2 – Oba Adeyemi Lawal, a member of the plaintiffs’ family and indeed the first plaintiff in this case, he said in his evidence before the court inter alia: –

“I also know the land in dispute, it belongs to our father – Ladoje a direct-descent (sic) of Akarigbo “Koyelu”.

He (PW2)in his evidence further told the court that the Akarigbos, past or present, exercise dominion over the Agura land and reserved the right to allocate land to anybody he wished. He (PW2) was even emphatic that Oba Akarigbo gave the land to Ladoje:

And after the respective addresses of counsel had been taken, the trial judge, in a reserved judgment, held inter alia: –

“PW2 testified in a convincing manner how Ladoje his forefather first settled on the land………..and of course the land in dispute which he said belonged to their late father Ladoje, a direct descendant of Akarigbo “Koyelu” and on which land Ladoje’s father put him Ladoje, when they were at the homestead of Offin (Offinstead) about 200 years ago…………….. traditional evidence is one of the five ways of proving title to land and if a party’s title is proved by traditional evidence, there is no need to refer to acts of possession and ownership.

I believe the traditional evidence of PW2, PW6 and PW7………….

On the evidence, I am particularly more convinced by the evidence of PW2 – Oba Adeyemi Lawal – a Traditional Ruler, who by his status and position position in the community, is not only in a position to know the true facts in the land dispute, especially in his domain, but would have no need to, and also difficult for him to twist the truth. His evidence that his great ancestor LADOJE first settled on the land which devolves now on, and now inherited by his children…………is traditional evidence, that of traditional history and tradition, which is not in conflict with any other evidence and so conclusive and same is found to be cogent and enough to support the claim for declaration of title ………………..

On the whole, the plaintiffs have established by credible evidence, as required by law, to warrant the court make order for the reliefs sought, and there are also facts in the defendants’ case, which support the plaintiffs’ case. I believe and accept the evidence of the plaintiffs’ witnesses.”

Dissatisfied with the judgment of the trial court, the defendants appealed to the court below (the Court of Appeal) which court after taking arguments of the counsel in the appeal, in a reserved judgment delivered on 8th May 2001 unanimously dismissed the appeal while affirming the judgment of the trial court, in so doing the court below held inter alia: –

“There is a letter Exhibit A before the court in respect of this acquisition. The letter indicated that Oladejo (sic) first settled on the land. He was there to cultivate the land. This read together with the evidence of PW2 Oba Adeyemi Lawal that his father Akarigbo Koyelu put him on the land called Agura – as a first settler.

This was confirmed by the evidence of PW6 -Emmanual Olubowale Olufotebi – that this family had been boundary men to Agura people from time immemorial. No other family has occupied the farmland before the Agura people.

Finally, the myth in Yoruba land was that all land belongs to the King – who before the Land Use Act, held land in trust for his tribe. Land cannot pass directly to a holder without the permission of the King…………………..The respondent did not give evidence of grant……………..

I hold that the judgment of the lower court was not afflicted by any of the foregoing hence this court as an appellate court has no business to interfere with or disturb the judgment of the trial court. The appeal shall be and is hereby dismissed for lacking in merit.”

It is against the judgment of the court below that the defendants/appellants have lodged an appeal to this court. The original Notice of Appeal dated 28th June 2001 but filed on the 3rd of July 2001 has incorporated into it seven grounds of appeal.

With the leave of this court, the appellants added eight additional grounds. Hence in the Amended Notice of Appeal dated 9th October 2003 which was accorded the order of this court on the 14th of June 2005, a total of fifteen grounds of appeal were incorporated. The appellants filed their brief of argument on the 22nd of October 2003 and the appellants’ reply brief filed on 24th April 2007. For their part, the respondents filed their brief of argument on the 5th March 2007. The appellants, in their aforesaid brief of argument, identified five issues from the fifteen grounds and as set out in their brief, they are in the following terms: –

“(1) Whether the court below can rightly take judicial notice of an unpleaded custom and if not, whether its conclusion on such custom ought not to be set aside.

(2) Whether the plaintiffs proved their root of title, so as to entitle them to a declaration of title to land and whether a declaration can be granted on the basis of an admission (if any).

(3) Whether plaintiffs have the locus standi to maintain this action and whether Exhibit A can be validly used to reach a conclusion that plaintiffs have the requisite locus.

(4) Whether a proper evaluation was given to the evidence adduced to warrant the conclusion that plaintiffs’ case is proved, and if not, whether the decision that plaintiffs’ had proved their case should be allowed to stand.

(5) Whether the decision to reject a deed of conveyance tendered by the defendant is not a nullity for breaching the constitutional rights to fair hearing of the defendants.”

The respondents, for their part, also raised five issues for determination which, as contained- in their brief or argument, they are as follows: –

“(1) Whether the Court of Appeal was right in holding that the plaintiffs/respondents have locus standi to bring the action in the first instance

(2) Whether the Court of Appeal correctly applied Section 74 (2) of the Evidence Act.

(3) Whether the Court of Appeal was right in confirming the judgment of the High Court having regard to all the evidence on records.

(4) Whether there was any breach of the rules of natural justice and/or miscarriage of justice.

(5) Whether the Supreme Court will interfere with concurrent findings of fact by the lower courts.”

I have examined very carefully the two sets of issues raised by the parties. It is my considered view that, Issues Nos. 1, 2, 3 and 4 on the appellants’ brief are substantially similar to Issues Nos. 1, 2, 3 and 4 on the respondents’ brief; I shall therefore take the two of them together. I shall finally take Issue No.5 on the appellants’ brief and Issue No.5 on the respondents’ brief seriatim.

As I have said above and supported by’ the relevant paragraphs of the 2nd further amended statement of claim, the root of title of the appellants as pleaded is SETTLEMENT. The appellants in arguing Issue No. 1 on their brief referred to paragraph 3 of the pleadings quoted above and submitted that the only root of title relied upon by them is settlement the concept of which does not admit of any prior occupation of the land in dispute by another person other than the first settler. He again referred to the viva voce evidence of PW2 – Oba Adeyemi Lawal who incidentally is the 1st plaintiff/respondent and submitted that it is contrary to their pleadings. The sum total of PW2’s evidence is that the Akarigbo of Remo Land exercises dominion over all Remo Land including the land in dispute and that it was the Akarigbo that made a grant of the land to Ladoje. The custom relating to the ownership of land, it was further submitted, was not pleaded. On this point, it was finally submitted that the custom of exercise of dominion by the Akarigbo was not pleaded but evidence of same was proffered and that evidence being inadmissible; ought not to have been acted upon by the trial judge. It was finally submitted that it was wrong for the court below to have resorted to the Yoruba custom of all lands belonging to the King to give such evidence any legal efficacy; they prayed that the appeal be allowed on this point. On Issue No.2 therein, it was their submission that both courts fell into serious error of law when the trial court granted declaration of title to land in favour of the plaintiffs/respondents predicated on traditional history which was never pleaded nor even proved in law. It was also part of their submission that having pleaded “SETTLEMENT” in an unmistaken term it was wrong in law, to admit in evidence the testimony of PW2 which presents a case of GRANT by Akarigbo.

Having regard to the serious inconsistency in the evidence of respondents which the trial court admitted as correct in law and acted thereon, the court below (Court of Appeal) ought to have allowed the appeal instead of affirming the judgment which is patently wrong in law. A number of cases such as Kode v. Yussuf (2001) 4 NWLR (pt.703) 392; Balogun v. Akanji (1988) 1 NWLR (pt.70) 301; Adesanya v. Aderonumu (2000) 9 NWLR (pt.672) 370 and Oyedeji v. Akinyele (2002) 3 NWLR (pt.755) 586 were relied upon while urging that the appeal be allowed on the above arguments alone and a dismissal of the plaintiffs/respondents’ case in toto be ordered.

The respondents, on the other hand, through their brief of argument, submitted that the custom relied upon by them was pleaded in paragraph 4 of their further amended reply to the 4th Amended Statement of Defence and that PW2 gave evidence in support of it. Surprisingly, it was argued in their brief that the case of the plaintiffs/respondents as could be gleaned from the pleadings, is that, Ladoje, their ancestor, a son of Akarigbo Koyelu left Ofin Homestead and was put on a larger area of land by his father and he settled and farmed thereon. I wish to quickly say that this submission is totally contrary to the pleadings. Their case or their root of title as clearly’ pleaded is SETTLEMENT. They further opined that the contents of Exhibit A – the letter written by the Secretary of Ofin Local Government – supports their case, adding that the appeal be dismissed. On Issues Nos. 3 and 4, the respondents, through their brief of argument, reiterated their submissions on the issue of SETTLEMENT OR GRANT adding that the court below was right in affirming the decision of the trial court, when according to them, the respondents pleaded their traditional history of genealogy through Ladoje and adduced evidence accordingly and that having succeeded on traditional evidence. the respondents need not rely on acts of possession. The evidence that Ladoje first occupied the land for farming purposes is unassailable, it was submitted.

Where a party to a case or a land case places reliance on a statement that the dominion over a large parcel of land which includes the land he is claiming resides in a King and that it was the King that granted him his own land, he is relying on no more than a CUSTOM OR THE CUSTOMARY LAW of that locality where the land is situate. Custom or Customary Law is a set of rules of conduct applying to persons and things in a particular locality. Let me say that it is of the characteristics of a custom or customary law that it must be in existence at the relevant time and must be recognised and adhered to by the inhabitants of the community to make it binding. See Lewis v. Bankole(1908) 1 NLR 81. In relation to adjudication, custom is a question of fact which must be pleaded and proved by independent witness or witnesses. Section 14 (1) (2) and (3) of the Evidence Act which is germane to this case provides: –

Sec 14(1)

“A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist, by evidence; the burden of proving a custom shall lie upon the person alleging its existence.”

“Sec 14 (2)

“A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

Sec 14(3)

“Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them:

PROVIDED that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.”

And see (1) Giwa v. Erinmilokun (1961) SCNLR 337; (2) Olagbemiro v. Oba Ajagungbade III & Anor (1990) 3 NWLR (pt.136) 37. The plaintiffs/respondents have forcefully in their brief, argued that the custom was pleaded. I have carefully looked at the 2nd further amended statement of claim and plan filed by them, there is nothing suggestive of a plea of custom that the Akarigbo exercises dominion. over the land. They later submitted that the custom was pleaded in the Further Amended Reply to the Statement of Defence of 1st – 6th defendants in paragraph 4 therein as follows: –

“The plaintiffs will contend at the hearing of this suit that the entire Agura land which Sabo Ofin Sagamu forms part of had been from time immemorial under the overall authority of the Akarigbo ….. ”

The above averment is so vital to the case of the plaintiffs/respondents, indeed, it is the foundation of their case given the viva voce evidence they led. Therefore, its permanent resting place is in the statement of claim of the plaintiffs or in the amended process with the leave of court. It cannot be raised afresh in a reply or amended reply of the plaintiff to the defence already filed and served on them. Let it be noted that a REPLY is the defence of the plaintiff to the case put forward by the defendant or even to the counter-claim of the defendant or to the new facts raised by the defendant in his defence to the plaintiffs’ statement of claim. A plaintiff is not allowed, in law to introduce new issue, indeed fundamental issue as that in the instant case. without the leave of court. A plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim. If a plaintiff does, such a plea is irretrievably bad in law and no evidence will be admissible on its proof. See (1) Pasco Vehicle & Plant Hire Co. v. Alrain (Nig.) Ltd(1995) 8 NWLR (pt.416) 655, (2) Bakare v. Ibrahim (1973) 6 S.C. 205, (3) Oshodi v. Eyifunmi (2000) 11 WRN 86 or (2000) 13 NWLR (pt.684) 298, (4) Adeniji v. Fetuga (1990) 5 NWLR (pt.150) 375 and (5) Akinsanya v. Soyemi(1998) 8 NWLR (pt.560) 49. I shall therefore not countenance that pleading. As I have said, it is an irretrievably bad pleading in law. Where the custom to have been properly pleaded, another great hurdle to cross is whether it had acquired such notoriety in its application and usage among the inhabitants of the community to be capable of being judicially noticed There is no evidence in this regard to make the assertion that the Akarigbo of Remo Land is the overlord of all vast parcel of land in that community; no decided case of a superior court was placed before the court of trial. The custom is not such a notorious one as to be judicially noticed. The only mere assertion on this point was that made by PW2 – Oba Adeyemi Lawal, the 1st plaintiff/respondent. Will this sustain the proof I think not. See Ojeyemi & Ors V. H.H. Momodu II (The Ogirrua of Irrua) & Ors. (1983) 3 S.C. 173.

It was also argued by the respondents that Exhibit A the contents of which I reproduced supra goes to support the over lordship of the Akarigbo over the land. I debunk the legal value of this exhibit by first saying that it was never properly pleaded. Secondly, it is a well established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olanrewaju(1969) 1 ALL NLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (pt.396) 351. One more point before I finish with the arguments of this point; the plaintiffs/respondents had in their relief No. 3 paragraph 37 of the 2nd further amended statement of claim and plan claimed as follows: –

“Perpetual injunction restraining the defendants, their agents, servants and/or privies from further entry into the said land.”

On the face of the pleadings and if the root of title pleaded which is “SETTLEMENT” were maintained and proved, the aforementioned relief 3 would have been sustainable. But in their viva voce evidence, particularly that of PW2, it is clear that a case of GRANT was instead put up. They gave evidence that the absolute ownership of the entire land resided in the Akarigbo. But, unfortunately the Akarigbo was not made a party to this case and yet, they are claiming perpetual injunction. This court in Chief Dada, The Lojaoke v. Chief Shittu Ogunremi & Anor(1967) 1 NMLR 181, This Court (Supreme Court) said and I quote: –

“It is improper to grant a perpetual injunction at the instance of II limited owner when the owners of the absolute interest is not made a party to the case.”

Going by their evidence, were they to prove their case, they would have been limited owners and they would not be entitled to the third relief which is for perpetual injunction. Perhaps, they would have been entitled to just an order of injunction. Again, I have said, borne out of the state of the pleadings and the evidence adduced that the Akarigbo is obviously not a party to this case.Were there to be credible evidence laid before the trial court in support of the contention that the Akarigbo is the overlord of the entire land; would it have been proper in law, for the court to declare the Akarigbo the absolute owner of the entire land I am in entire agreement with the submission of the appellants in their brief of argument that if a party whose title to land is affected is not joined in the suit as a party, a judgment declaring him the owner will not enure in his favour. I have read the case of Atunrase v. SunmolaUN (1985) 1 NWLR (pt.1) 105, a decision of this court it reinforces that submission.

As I have shown above, the root of title pleaded by the respondents is simply SETTLEMENT but in the viva voce evidence it was shown in evidence that the Akarigbo whom they held out as the overlord made a grant of the land in dispute to Ladoje. The court below after affirming the findings of the trial court on this issue, held as follows:-

“There is a letter EXHIBIT A before the court In respect of this acquisition. The letter indicated that Oladejo (sic), first settled on the land. He was therefore to cultivate the land. This read together with the evidence of PW2 Oba Adeyemi Lawal that his father Akarigbo Koyelu put him on the land called Agura – as a first settler. This was confirmed by the evidence of PW6 Emmanuel Olubowale Olufotebi – that his family had been boundary men to Agura people from time immemorial. No other family had occupied the farmland before the Agura people. Finally, the myth in Yorubaland was that all land belongs (sic) to the King who before the Land Use Act held land in trust for his tribe. Land cannot pass directly to a holder without the permission of the King. History of the Yoruba, Rev. Samuel Johnson 6th Edition page 95, the respondent did not give evidence on grant:”

With due respect, I am of the clear view that the court below seriously erred in law in its above summation. In the first place, it is axiomatic that parties are bound by their pleadings. Therefore, any evidence led by any of the parties which does not accord with the averments or which is at variance with them goes to no issue and

must be disregarded by the court. In the instant case, the plaintiffs/respondents claimed for declaration of title predicating it on their averment of “SETTLEMENT”. In the recent case of Yusuf v. Adegoke & Ors (2007) 11 NWLR (PT.1045) 332, I observed at pages 358 thus: –

“Let me repeat here, the plea of the plaintiffs/respondents in paragraph 3 of the statement of claim is one of special GRANT – GRANT of land from ALESHINLOYE to ODETUNDE – no scintilla of evidence was led in support. That was grave to the case presented and it knocked the bottom out of the case which as at that state qualified for nothing but a dismissal order.”

In the instant case, I repeat, it is “SETTLEMENT” that was pleaded as their traditional history. SETTLEMENT in its legal term here means that nobody other than the person pleading it first settled on the land. There is no scintilla of evidence that Ladoje was the first person that settled on the land. All they gave in evidence was that the Akarigbo made a grant of the land to Ladoje. This is contrary to their pleadings. In Odofin v. Ayoola (1984) 15 NSCC 711, this court per the judgment of Karibi-Whyte JSC observed at page 720 thus: –

“It is well settled that where a plaintiff relies on a grant or original settlement as title to claim the land in dispute, the burden is on him to establish such grant or original settlement – this he can do by cogent and acceptable evidence of tradition, whether or not accompanied by exercise of dominion which also may be sufficient to establish title …

It follows therefore that where traditional evidence of that alleged from which the title is derived, is lacking or rejected, as was in this case, such evidence is not only merely inconclusive but also cannot be relied upon whether any other acts positive or numerous can support evidence of ownership.”

Going by the above dictum, the evidence led by the plaintiffs/respondents cannot be relied upon; it is totally lacking in legal efficacy. I have earlier again pointed out that the plaintiffs/respondents claimed for declaration of title. In the same case of Yusuf (supra) which is materially similar in principle to the instant case except for the terminology used in relying on traditional history, I said at pages 359 – 360 thus: –

“It should not be forgotten that in the instant case, the plaintiffs/respondents claimed a declaration of title based on grant from Aleshinloye to Odetunde under Yoruba Native Law and Custom. Unless the origin of their title is valid, that it was established by credible evidence, even if there was copious evidence of possession the length of possession does not ripen invalid title to a valid ownership of title.”

I read in the brief of the plaitiffs/respondents that the defendants/appellants admitted the claim for declaration; therefore there was no need to prove same. It is now totally settled in law that a court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is credible. See (1) Motunwase v. Sorungbe (1988) 5 NWLR (pt.92) 90, (2) Udo v. C.R.S.N.C (2001) 14 NWLR (pt.732) 116, (3) Bello v. Eweka (1981) 1 S.C. 101 and (4) Ogunjumo v. Ademolu (1995) 4 NWLR (pt.389) 254.

Flowing from all I have been saying, the conclusion I reach with respect to the issues I have considered is that Issues Nos. 1, 2, 3 and 4 on the appellants’ brief are hereby answered in the negative. Similarly, I answer the corresponding Issues Nos. 1, 2, 3 and 4 on the respondents’ brief in the negative.

The gravamen of the appellants’ complaint in Issue No.5 is, whether the decision of the court to reject a deed of conveyance tendered by the defendants/appellants is not a nullity having regard to the fact that when objection was taken to its being tendered by the counsel for the plaintiffs/respondents, the counsel to the defendants/appellants was not heard on the issue before a ruling rejecting the document was handed down. Before I answer this question, I wish quickly to say that the defendants/appellants did not counter-claim and no declaratory judgment can be made in their favour: I have examined the records of proceedings and I found that the counsel for the defendants/appellants was not called upon before the ruling on this matter was delivered. To this extent, the trial court breached the principles of fair hearing. For whatever it is worth, the court below could have made that pronouncement.

The result is that I resolve, Issue No.5 on the appellants’ brief in their favour. Issue No. 5 on the respondents’ brief poses the question, whether this court (Supreme Court) can interfere with rule, as regards two concurrent findings of facts, is that such findings will not be disturbed by the appellate court (the like of this court) unless there is a substantial error apparent on the record of proceedings. See Chinwendu v. Mbanali & Anor. (1980) 3 – 4 S.C. 31. Where however, not to interfere with the concurrent findings of facts will occasion miscarriage of justice, an appellate court (again, the like of this court) will readily interfere. See Coker v. Oguntola & Ors (1985) 6 S.C. 223.

From the review of the evidence that I have undertaken, it is beyond argument that there is a substantial error on the face of the records. The evidence admitted and acted upon by the trial court has no legal support. The lower court (as an appellate court) endorsing the judgment of the trial court on such evidence also fell into serious legal error. Should this court fail to interfere with these findings, incalculable injustice would have been done. It is for this reason that I answer Issue No.5 on the respondents’ brief in the affirmative.

Having answered all the issues raised in this appeal, the inevitable conclusion that I reach is that this appeal is meritorious. It is hereby allowed. The judgments of the two courts below are hereby set aside; in like manner, I set aside the costs of N1,000.00 awarded by the trial judge in favour of the plaintiffs/respondents but against the defendants/appellants; I equally set aside the costs of N10,000.00 awarded by the court below in favour of the plaintiffs/respondents but against the defendants/appellants. I hereby’ award the sum of N1,000.00 as costs to which the defendants as appellants would have been entitled against the plaintiffs as respondents now before us; the sum of N10,000.00 is also awarded in favour of the appellants before the court below (now appellants before us) but against the respondents before that court who are presently the respondents before us. The claims of the plaintiffs/respondents as set out in paragraph 37 of the 2nd further amended statement of claim and plan are consequently dismissed in toto. I now assess and award the sum of N50,000.00 (fifty thousand naira) as costs of this appeal in favour of the appellants but against the respondents.

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SC.53/2002