Samson Awoyale V. Joshua O. Ogunbiyi (1986)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C

The respondent in this appeal was the plaintiff in an action which he insituted on behalf of the Ba’a family in the Igbomina South Central Area Court, Oro, Kwara State. The defendant in that case was David Adewoye who later died but was substituted by Samson Awoyale, who is the appellant in this appeal and who represents the Efundere family. Both parties are from Ijomu-Oro in Oro District of Kwara State.

The plaintiff’s claim was for a declaration of title to the Ijomu-Oro township land and its adjoining forest. Both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the hearing, the trial Area Court dismissed the plaintiff’s claim.

On appeal to the Upper Area Court, that court allowed the appeal and awarded the land to the Ba’a family. On further appeal to the High Court by the Efundere family, the High Court allowed the appeal, reversed the decision of the Upper Area Court and restored the decision of the trial Area Court which awarded the land to the Efundere family.

On appeal to the Court of Appeal from the judgment of the High Court, that Court, in a well considered allowed the appeal of the Ba’a family and restored the judgment of the Upper Area Court in favour of that family. The lead judgment of the Court of Appeal (concurred in by Wali, J.C.A. and Karibi-Whyte, J.C.A. (as he then was, which was delivered by Coker, J.C.A. (as he then was), after highlighting some misdirection in the judgment of the High Court, concluded as follows:

“The plaintiff, in my opinion is entitled to succeed on the pre preponderence of evidence on both traditional evidence and clear cogent acts of possession and ownership. Further, it is my view that the judges of the High Court proceeded on wrong principle of law as regards burden of proof and on its evaluation of the primary facts and finally came to a wrong decision. The traditional evidence adduced by the plaintiff was sufficient, apart from the cogent evidence of acts of ownership, to prove its title. See Stool of Abinabina etc. v. Eyinamadu 12 W.A.C.A. 17, p. 174; Olujebu of Ijebu & Ors. etc. (1972) 5 SC. 145 p. 151. See also Kojo II v. Bonsie & Anor. (1957) 1 W.L.R. 1223 p. 1226, 14 W.A.C.A. 242. Still further, the High Court was in error to set aside the judgment of the Upper Area Court which was reasonable and amply supported by evidence. See Ogbero Egri v. Ededho Uperi (1973) 11 SC. 299 p. 309-310; A.M. Akinlaye v. Bello Eyiola (1968) N.M.L.R. 92, p. 93.”

The defendant/appellant aggrieved by the decision of the Court of Appeal has further appealed to this Court on the following four grounds:

“(1) The trial before the Igbomina South Central Area Court was irregular and void because the trial Court took upon itself to summon to (sic) witnesses without the consent of the parties.

(2) Further and in the alternative the Federal Court of Appeal erred in law and on the facts in allowing the appeal and (without directing a retrial) entering judgment in favour of the Ba’s Family.

PARTICULARS OF ERROR

The nature and character of the evidence before the Area Court at Oro was such that it was not possible for the Upper Area Court or for the Federal Court of Appeal to assess the credibility of the witnesses and adjudicate on the issues of fact raised on the evidence adduced.

(3) The Federal Court of Appeal erred in failing to observe that it is not enough for them to be satisfied that they would not have come to the conclusions of fact to which the Area Court and the High Court came; the Federal Court of Appeal ought to be satisfied in addition that no reasonable tribunal could have come to the conclusions of fact aforesaid.

(4) The decision of the Federal Court of Appeal is against the weight of evidence. “In his brief of argument, Chief Williams, SAN, learned counsel for the appellant formulated three questions for determination in this appeal as follows:

(1) In what circumstances should an appellate court reverse a finding of fact by the Court of trial

(2) Was the Upper Area Court justified in reversing the judgement of the Area Court in this case

(3) Is the Court of Appeal justified in taking upon itself the job of reviewing, and making findings of fact being a court of further appeal from a Court of Appeal

I find myself in agreement with the appellant’s counsel that answers to these questions will cover the main contentions of the appellant in this appeal.

As a preliminary point, Chief Williams submitted that the powers conferred on courts exercising appellate jurisdiction under the Area Courts Edict of Kwara State are similar to those of other courts established by statute, and that being so, he further submitted, the powers of the Upper Area Court to interfere with findings of fact in the exercise of its appellate jurisdiction are no greater than those conferred by statute on this Court or on the Court of Appeal in the exercise of their respective appellate jurisdictions.

Now the powers conferred on courts exercising appellate jurisdictions in civil matters under the Area Courts Edict of Kwara State (Edict No.2 of 1967) are contained in Section 59 of the Edict. That section reads as follows:

“59 (1) Any court exercising appellate jurisdiction in civil matters under the provisions of this Edict may in the exercise of that jurisdiction;

(a) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order or exercise any such power as the court of first instance could have made or exercised in such case or as the appeal court shall consider that the justice of the case requires;

(b) quash any proceedings and thereupon where it is considered desirable, order such one to be retried before the court of first instance or before any other court of competent jurisdiction.

(2) In the exercise of its powers under this section a court may hear additional evidence, as it considers necessary for the just disposal of the case. ”

Having compared the above provisions with the general powers of this Court under s. 22 of the Supreme Court Act No.12 of 1960 and those conferred on the Court of Appeal under s. 16 of the Court of Appeal Act 1976, I am left in no doubt that the submission of Chief Williams, with regard to the powers of the Upper Area Court to interfere with the findings of facts in the exercise of its appellate jurisdiction, is right.

It was learned Senior Advocate’s further submission that an appeal on questions of fact may raise one or other of the following questions:

“(i) Where there is irreconcilable conflict in the evidence, the trial court can be criticised for believing one side and not accepting the evidence of the other side.

(ii) The trial Court may be criticised for making a finding of fact when there is absolutely no evidence to support such finding.

(iii) The trial Court may be criticised for making a finding of fact when the evidence relied upon to support such finding was inadmissible.

(iv) The trial court may be criticised for making a finding of fact based on inference from findings of primary facts not disputed by the appellant though the latter says that the inference made was wrong.”

He further submitted that the Courts of Appeal in this country have, over the years, laid down for themselves guidelines for dealing with appeals on questions of fact where the decision in the Court below rested mainly on the credibility of witnesses, and in this connection reference was made to Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C. 135 in which this Court quoted, with approval, the guidelines laid down by the Full Court of Nigeria in 1899 in the case of Macaulay v. Tukuru 1 N.L.R. 35. It was the contention of Chief Williams, and I think this is really the crux of the matter in this appeal, that both the Upper Area Court and the Court of Appeal failed to follow the guidelines laid down in the cases cited. This therefore brings me to the consideration of the first question formulated for determination-namely the circumstances in which an appellate court would be justified to reverse a finding of fact by a court of trial.

Now it is settled law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. Akinloye and Anor. v. Eyiola and Ors. (1968) NMLR 93 and Obisanya v. Nwoko (1974) 6 S.C. 69 at p. 80. Also see Victor Woluchem and Ors. v. Chief Gudi and Ors. (1981) 5 SC. 291 at p. 326-330, where Nnamani, J.S.C. delivering the lead judgement of the court said: “The principles under which an Appeal Court would interfere with the findings of a lower court have been laid down by several authorities of this Court and Courts in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court. See Folorunsho v. Adeyemi (1975) N.M.L.R. 128 CAW; A.M. Akinloye v. Bello Eyiola & Ors. 1968 N.M.L.R. 92 at page 95; Balogun v. Agboola (1974) 10 SC. 111.”

It is, however, pertinent to point out in this case that one of the main complaints of the plaintiff/appellant before the Upper Area Court was that the trial Area Court failed to consider a considerable body of evidence before it, and especially the evidence of a number of witnesses called by the plaintiff. This was the complaint in additional ground two of the plaintiff/appellant’s grounds of appeal in the Upper Area Court.

Now the record shows that at the conclusion of the hearing the Area Court reviewed the totality of the evidence adduced which exercise was no more than mere repetition of the evidence of each witness-made reference to the evidence of a few witnesses and dismissed the plaintiff’s claim. The Area Court did not, as any court trial would be expected to do, consider the whole of the evidence adduced by each party before it gave its decision. This is contrary to the mandatory provisions of Order 11, rule 10 of the Area Courts (Civil Procedure) Rules, 1971 which reads as follows:

“(10) When the cases for both sides have been closed the court shall consider the whole matter and give its decision which shall be put into the form of an order in accordance with Order 14”

It is indeed the duty of a trial court to consider the totality of the evidence adduced by the parties before giving its decision. This point was stressed by this Court in Mogaji & Ors. v Odofin & Ors. (1978) 4 SC.91 at p. 93 where Fatayi-Williams, J.S.C. (as he then was), delivering the judgment of the Court said: “We think there is merit in the complaints of the defendants/appellants.

When an appellant complains that a judgement is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgement given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.

Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed.”

It is obvious from the record that the Area Court did not follow the procedure outlined above. The record shows that at the trial the plaintiff gave evidence and called fourteen witnesses. The defendant also gave evidence and called eighteen witnesses. The Area Court suo motu called two witnesses. So in all the thirty-six witnesses testified but the Area Court considered the evidence of only nine and inexplicable ignored the evidence of the remaining witnesses. Could not the Upper Area Court, as the appellate court, in the circumstances of this case, re-assess and re-evaluate the evidence before the Area Court and make some specific findings on such evidence I think it could. In Shell-B.P. Petroleum Development Company of Nigeria Ltd. v. His Highness Pere Cole & Ors. (1978) 3 SC. at p. 194, Bello, J.S.C. delivering the judgment of the Court, said:

“This Court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial judge but where there is ample evidence and the trial judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial court to deal with the facts and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial: See Chief James Okpiri & Others v. Chief Igoni Jonah & Others (1961) 1 ALL N.L.R. 102. Olalere Obadara & Others v. The President, Ibadan West District Court (1964) 1 ALL N.L.R. and Oladipo Maja v. Learndro Stocco (1968) N.M.L.R. 172.”

It is therefore my view that the Upper Area Court was, in the circumstances of this case, justified in re-evaluating the evidence adduced before the Area Court and especially as there is nothing on the record to show that the Upper Area Court accepted the testimony of any witness whose credibility was doubted or questioned by the Area Court. I agree with Mr. Sofola, SAN, counsel for the respondent that the review of the evidence by the Upper Area Court was based entirely on inferences which were drawn from the evidence before the Area Court.

Now, was the Court of Appeal right in reversing the decision of the High Court and restoring that of the Upper Area Court I think it was. In the first place I agree entirely with Mr. Sofola’s submission that the High Court, as a Court of second appeal, was in error to have substituted its view, on the printed evidence, for those of the Area Court and to have thereby come to a decision different from that of the Upper Area Court. Secondly the Court of Appeal, in its judgment reversing the decision of the High Court states its reasons for doing so and I am satisfied that in this appeal, none of those reasons has been shown to be wrong.

Finally on the general ground, I agree with the Court of Appeal that on the preponderance of evidence adduced the plaintiff is entitled to the judgment of the Court. I would therefore dismiss the appeal. The appeal is hereby dismissed and the decision of the Court of Appeal, restoring the judgment of the Upper Area Court dated 29th August, 1978 in favour of the respondent, is hereby affirmed. The appellant shall pay N300.00 costs to the respondent.

KAYODE ESO, J.S.C. :-I have had a preview of the judgement which has just been read by my learned brotheer Kawu, J.S.C. and I am in complete agreement that for the reasons he has so lucidly given the appeal shall be dismissed and it is hereby dismissed with N300.00 Costs.

UWAIS, J.S.C.:-I have had the advantage of reading in draft the judgment read by my learned brother Kawu, J.S.C. I agree with it and I too would dismiss the appeal.

It is to be observed that ground 1 of appeal which reads:

“The trial before the Igbomina South Central Area Court was irregular and void because the trial court took upon itself to summon to (two) witnesses without the consent of the parties.”

has been argued feebly and somewhat abandoned half way in the appellants argument as contained in his brief. But I think it is pertinent to point out that the ground of appeal is not a complaint against the decision of the Court of Appeal. Rather, it is a complaint against the decision of the trial court-the Igbomina South Central Area Court for calling two witnesses of its own motion without the consent of the parties. Such ground cannot be argued before us as there is no appeal from the Area Court to this Court-Okeke Anadi v. Okeke Okoli, (1977) 7 SC. 57 at p. 64. Of greater significance though is the issue whether an area Court can summon witnesses to testify before it without the consent of the parties in dispute. Undoubtedly, the area courts have the power to do so. For sections 35 and 36 of the Area Courts Edict of Kwara State (Edict No.2 of 1967) provide as follows:

“(35) Every area court shall have power to summon before it for the purpose of giving evidence any person within the State.

(36) Any person present at an area court, whether a party or not to any cause or matter before the court, may be required by the court to give evidence as if he had been summoned to attend and give evidence. ”

Furthermore, Order 13 rule 1(1) of the Area Courts (Civil Procedure) Rules, 1971 of Kwara State (Kwara S.L.N. 3 of 1971) provides:

“A court may of its own motion or on the application of either party summon any person subject to its jurisdiction to attend the court and to give evidence or to produce any document in his possession.”

It therefore follows that area courts are not bound to obtain the consent of the parties in a case before them prior to exercising the power to summon witnesses suo motu. And where they call witnesses as such, the trial is neither irregular nor void.

For these and the reasons contained in the judgment of my learned brother Kawu, J.S.C. the appeal is dismissed with N300.00 costs to the respondent.

KAZEEM, J.S.C.:-The plaintiff (now the respondent) who represented the Ba’a family of Ijomu in Oro District of Kwara State had sued the defendant one David Adewoye on behalf of the Efundere Family of Ijomu-Oro in the Igbomina South Central Area Court (hereinafter referred to as the Area Court) for an order to restrain the Efundere family from using the land in Ijomu Oro town because the land belonged to Ba’a family from time immemorial. This was in effect a claim for a declaration of title by the plaintiff/respondent to all the piece and parcel of land in Ijomu Oro Township and Ijomu Oro forest. Later David Adewoye died; and he was substituted by Samson Awoyale (now the appellant). At the trial, both sides called a large number of witnesses and relied on traditional history as well as proof of witnesses and possession and acts of ownership, in support of their claims. The Area Court also called two witnesses namely the Oloro of Oro and Bale of Ijomu. At the conclusion of evidence and addresses by learned counsel, the Area Court merely made a review of those evidence and addresses in about forty pages of its judgment. Thereafter it considered the testimonies of a few witnesses called by the respondent and the appellant in about three pages of the Record before coming to its conclusion that “the plaintiffs (i.e. respondent) has failed to convince us that he has all the forest area of Ijomu and Ijomu Township.” The plaintiff’s claim was therefore dismissed.

On an appeal to the Upper Area Court at Omu-Aran which had similar powers on appeal as the Court of Appeal, Kaduna, that Court took the view that the Area Court did not adequately consider the preponderance of evidence tendered before it by both parties before coming to its decision. The Upper Area Court therefore evaluated the evidence and reversed the findings of that made by the Area Court. The appeal was then allowed and title to both Ijomu Township and Ijomu forest was awarded to the Ba’a family.

Again, the Efundere family being dissatisfied with that decision, appealed to the High Court, Ilorin on several grounds, including the omnibus or general ground that the Decision of the Upper Area Court was unreasonable, unwarranted and could not be supported having regard to the weight of evidence. The High Court in its appellate capacity dismissed the appeal on all the other grounds except the general ground. On that general ground, that court again purportedly reviewed and evaluated all the evidence tendered before the Area Court but still like the Area Court, ignored some of those evidence. Eventually, it came to the conclusion thus:

“We have ourselves weighed all the evidence in this case thoroughly as we possibly can and we are of the view that the trial court arrived at a right decision when it dismissed the plaintiff’s case, although it failed to give all the reasons it ought to have given.”

The High Court then allowed the appeal and restored the decision of the Area Court which had previously dismissed the claim of the Ba’s family.

Against the judgment, the Ba’s family appealed to the Court of Appeal in Kaduna on several grounds of misdirection of law and facts; and in a well-considered judgment, that court found that the High Court grossly misdirected itself on the law and on the facts; and having considered those misdirections, it came to the conclusion that the plaintiff (respondent in this appeal) i.e. the Ba’a family in its opinion was entitled to succeed on the preponderance of evidence on both traditional evidence and clear cogent acts of possession and ownership. The appellants-the Efundere family-have now appealed to this court against that judgment on four grounds as follows:

“(1) The trial before the Igbomina South Central Area Court was irregular and void because the trial Court took upon itself to summon witnesses without the consent of the parties.

(2) Further and in the alternative the Federal Court of Appeal erred in law and on the facts in allowing the appeal and (without directing a retrial) entering judgment in favour of the Ba’s Family.

PARTICULARS OF ERROR

The nature and character of the evidence before the Area Court at Oro was such that it was not possible for the Upper Area Court or for the Federal Court of Appeal to assess the Credibility of the witnesses and adjudicate on the issues of fact raised on the evidence adduced.

(3) The Federal Court of Appeal erred in failing to observe that it is not enough for them to be satisfied that they would not have come to the conclusions of fact to which the Area Court and the High Court came; the Federal Court of Appeal ought to be satisfied in addition that no reasonable tribunal could have come to the conclusions of facts aforesaid.

(4) The decision of the Federal Court of Appeal is against the weight of evidence.”

On those ground, Chief F.R.A. Williams, SAN, learned counsel for the appellant had set out in his Brief of Argument, three questions for determination as follows:

(1) “In what circumstances should an appellate court reverse a finding of fact by the Court of trial

(2) Was the Upper Area Court justified in reversing the judgement of the Area Court in this case

(3) Is the Court of Appeal justified in taking upon itself the job of reviewing, and making findings of fact being a court of further appeal from a Court of Appeal

In formulating the above questions for determination, learned counsel for the appellant seemed to have recognised the fact that the High Court fell into an error in evaluating the evidence of the witnesses before the Area Court even though it was considering an appeal to it from the Upper Area Court. In its conclusion, that Court even conceded that the Area Court failed to give all the reasons it ought to have given in arriving at its decisions.

The basic settled principle for the determination of appeal on issues of facts by an Appellate court is that where the trial court unquestionably has evaluated the evidence and appraised the facts, it is no longer the business of the Court of Appeal to embark on a fresh appraisal of such evidence and to not only disturb findings of fact by the trial court, but also to substitute its own views for those (of the trial court. See Akinloye and Anor v. Eyiola and Ors. (1968) N.M.L.R. 92 at p. 95; Obisanya v. Nwoko (1974) 6 S.C. 69 at p. 80; Victor Woluchem and Ors v. Chief Gudi and Ors (1981) 5 SC. 291 at p. 326-330. That principle was also reiterated by Eso, J.S.C. in Chief Frank Ebba v. Chief Warri Ogodo and Anor. (1984) 4 S.C. 8 when after referring to many other authorites on the point he observed thus:

“It is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the Court forms of them;. . . it is the trial court. . . that has the duty to see and indeed in this case, has seen the witnesses and also heard their evidence. The Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound; it is in the process of deciding whether the finding is sound or not that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusions reached by and the inferences that have been drawn from such conclusions of the trial court.”

Earlier on, in Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C. 135

Sir Udo Udoma, J.S.C. when considering what should be the attitude of the Court of Appeal in an appeal on the ground that judgment is against the weight of evidence had said at p.152 as follows:

“We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle on which a Court of Appeal should act when a judgement is appealed against as being against the weight of evidence. It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest no court should depart. The principle was enunciated in Macaulay versus Tukuru (1881-1911) 1 N.L.R. 35, in these words:

“When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.”

I have had the privilege of reading the draft of the judgment just delivered by my learned brother Kawu, J.S.C. which had considered the above guiding principles in relation to the attitude of both the Upper Area Court and the Court of Appeal in appraising afresh the evidence of facts led at the trial court and in disturbing their findings of fact because they were to a great extent perverse. I am entirely in agreement with his reasoning and conclusions. However, by way of emphasis I wish to add these other points.

I think I may begin my enquiry here by considering whether, in arriving at its conclusions, the findings of fact made by the Area Court were right or wrong. As I have said previously in this judgment, the Area Court, after hearing a large number of witnesses and the addresses of learned counsel failed to decide the case on the preponderance of evidence tendered by both parties before dismissing the plaintiff/respondent’s claim. For instance, let us take a look at some of what happened in that court. It is to be noted that in proving his claim for a declaration of title, the plaintiff/ respondent relied on proof of boundaries with other families, traditional history of his ancestors and acts of possession and ownership by the Ba’a family on the land in dispute:

(a) on the question of boundaries, the Area Court considered only the testimonies of a few witnesses like P.W.11 and P.W.12; but failed to consider the cogent and probative evidence of P.W.8 and the evidence of Chief Aro at the locus in quo to the effect that their families shared land boundaries with the Ba’a family on the land in dispute. Nor did the Area Court indicate in its judgement why it failed to do so.

(b) Also on the issue of the extent of the land claimed and owned by the Ba’s family, the Area Court when considering the evidence of Oloro of Oro (a witness called by the Court itself) that his ancestor granted land to the Ba’a family in Ijomu town as one of the nine Makins of Oro, preferred to it the evidence given by both D.W.6 and D.W.8 that it was not so. However, that court failed to take cognizance of the other corroborative evidence of P.W.10, one Bakare Lemamu Bale of Afin Oro, an old man of 90 years of age, (See page 28 of the Record) who testified that the land in Ijomu township as well as an Ijomu forest was given to the Ba’a family exclusively by his fore-father-the Oba Oloro of Oro. Moreover, the Area Court had preferred the traditional history given by the Efundere family (the appellant here) that their ancestors were the original settlers in Ijomu and that they even gave land in Ijomu to Oloro Atiorioke who came to settle with their father. But in accepting that testimony the Area Court overlooked the fact that at page 40 of the Record, there was evidence that the defendant/appellant was appointed to the Chieftancy title of Esa of Ijomou-Oro by the Oloro of Oro. It is therefore inconceivable to think that the Oloro of Oro who came to settle at Ijomu Oro with the ancestors of Efundere family who gave him land, would in turn be the one to appoint the members of that family as Esa of Ijomu. That is rather incredible.

(c) Furthermore, while considering the issue of acts of possession and ownership, the Area Court regarded Exh. B used as evidence of the grant of land to the Christ Church Committee by the Ba’s family, as a forgery, because P.W.5 denied having signed the letter as shown thereon inspite of evidence of P.W.1 that he did. But there was other uncontradicted evidence of acts of grant of land for farming and tapping of palm wine given by P.W.6, P.W.7, P.W.9 and P.W.10 which the Area Court failed to consider. The Area Court also failed to consider the grants of land to the Jehovas Witnesses and the Ansaru-Islam College as evidenced by the documentary Exhibits E1, E2 and E3 which the Ba’a family said conceded title to the land in Ijomu town to them. Rather, the Area Court placed more reliance on the testimony by the Efundere family that such grant of land could not be valid as it was not supported by the evidence of the traditional mode of uprooting grasses of the said land for the applicants.

Having failed to do the right thing, it was not surprising that the Upper Area Court, on the authority of Macaulay v. Tukuru (1881-1911) 1 N.L.R. 35 cited with approval by this Court in Lion Buildings Ltd. v. M.M. Shadipe (1976) 12 S.C. 135 at p. 153 made up its mind and considered the prepronderance of evidence tendered before the Area Court, and evaluated that evidence before reversing the decision of the Area Court. I think the Upper Area Court was justified in doing so.

As regards the decision of the High Court, I am of the opinion that, on the ground that judgment was against the weight of evidence, it was no business of that court to have evaluated and appraised afresh the evidence of the Area Court at all, let alone to have disturbed it and to substitute its own findings therefor. After all, it acted as an appellate court to the Upper Area Court and not the Area Court. It should therefore have continued its decision to misdirections on issues of fact or law which might have arisen from the findings of the Upper Area Court. However, what the Court of Appeal did was not to deal with the issue of credibility of witnesses at the trial court; but to identify the misdirections of law and facts committed by the High Court; and in the light of the Evidence given before the Area Court, it drew the correct inferences there from.

In that regard the Court of Appeal said:

“I am satisfied that if the judges (of the High Court) had not misdirected themselves as to the nature of the evidence and the standard of proof as stated earlier, they would not have come to this (wrong) conclusions.”

Consequently, the Court of Appeal dealt with the misdirection’s in the following manner:

(i) The Oloro of Oro had testified that it was his ancestors that granted land in Ijomu township to the Ba’a family as one of the nine Makins of Oro. But the High Court did not regard that evidence as the best proof of title of a grantor since it was not the plaintiff/respondent (that is, the Ba’a family) but the Court that called him as a witness. That court also failed to consider the corroborative evidence of P.W.10 who confirmed that it was the ancestors of the Oloro who gave land to Makins in Ijomu Oro town. But it is the law that in civil cases such as this one for a declaration of title, a plaintiff must establish his case by a preponderance of evidence and not by the best evidence. See Sabalemotu Kayaoja & Ors. v. Lasisi Egunla & Ors. (1974) 12 S.C. 55 at p. 61. Having therefore failed to apply the correct principle of law on the standard of proof required in civil cases, the High Court had definitely misdirected itself.

(ii) Furthermore, the Court of Appeal highlighted other misdirection committed by the High Court on the establishment of a claim of title to land by proof of boundaries, and by acts of possession and ownership: See pages 295 to 301 of the Record of Appeal. Having committed those misdirections, the Court of Appeal did not hesitate to allow the appeal and set aside the decision of the High Court.

Hence for the reasons set out above, and for the other reasons contained in the lead judgement of Kawu, J.S.C., I am satisfied that the Court of Appeal was right in coming to its decision.

In the circumstances, I find no merit in this appeal. Accordingly, I hereby dismiss it, and affirm the decision of the Court of Appeal dated 10th February, 1983 which restored the judgment of the Upper Area Court Omu-Aran dated 29th August, 1978. The appellant to pay N300.00 costs to the respondent.

OPUTA, J.S.C.:-This case is unique in many ways. It has had a long tedious and chequered history; it has travelled the entire length of our court system. It started in the Igbomina State Central Area Court from where it journeyed up to the Upper Area Court of the Kwara State of Nigeria holden at Ilorin. This was the first Court of Appeal. There was a Second Court of Appeal-the Ilorin High Court (Coram Ekundayo, J., Yahaya, Kadi of Sharia Court and Adeniji, J.). From the Ilorin High Court the case went on a further appeal to the Federal Court of Appeal (now the Court of Appeal) Kaduna Division. That was the third Court of Appeal. As though hell bent on visiting every court in order to complete its circuit, there was a fourth appeal to the Supreme Court of Nigeria from which there can be no other appeal because “the buck stops here.”

I have had the privilege of a preview in draft of the lead judgment just delivered by my learned Brother Kawu, J.S.C. I am in complete agreement with him that this appeal should be dismissed and for the reasons he so ably adduced. Certain aspects of the case however need further emphasis namely:

(i) The approach, attitude and role of an appellate court towards facts, issues of fact and findings of fact of a trial court.

(ii) The quantum of proof required in a civil case for a declaration of title.

I will confine my observations to the two areas.

Now what happened in the various courts The trial court-the Igbomina South Central Area Court-dismissed the Plaintiff’s claim which was stated at p.1 of the record of proceedings as follows:

“I am instituting this action on behalf of Ba’a family. I wish the court to order the Efundere family to restrain from using the land in Ijomu-Oro town because this land belongs to Ba’a family since time immemorial. I therefore wish to claim the land.”

This obviously is a claim for declaration of title and an injunction. Pleadings-that is formal pleadings-are not usually filed in the Area Courts but all the same the court itself would want to know the issue or issues in dispute so the trial court addressed this question to the Defendant:

“Court to Defendant:

Do you hear what the Plaintiff said

Defendant:

The land in dispute belongs to my great grandfather, Efundere who was our ancestor.”

It is obvious from the claim of the Plaintiff above and the plea of the Defendant that the fight between the parties will revolve around the facts of their traditional histories. It will be the traditional evidence of the Plaintiff and his witnesses against the traditional evidence of the Defendant and his witnesses.

At p. 165 of the Record of Proceedings, the trial court observed:

“Having considered the whole case carefully, it is clear from that Alade, Elerin and Ba’a have their land at ‘Igbo-Erin’ and ‘Ehin-Igbo’ respectively and that these areas are in the forest area not in Ijomu township. We believe the evidence of P.W.11 and P.W.12 to the effect that they had boundaries with Ba’s at various areas stated by them. But what remains to be determined is the extent of Ba’a’s land. The Oloro of Oro told the court that apart from Ba’s, Alade and Elerin are also ‘Makin Oro’ in Ijomu. But the D.W.6 and D.W.8 have told the court that ‘Makin’ had no land in Ijomu township, also the Oloro of Oro who all the ‘Makin’ claim to have relationship with could not tell the court how the land was allocated to ‘Makin’. In view of the above we cannot say that the land in Ijomu belongs to Ba’a who is a ‘Makin Oro’. Moroever throughout our inspection the plaintiff did not show us any god or landmark belonging to his family though he claimed that the landmarks were usually erected by the herbalists.”

Concluding its judgment at p. 167 of the Record of Proceedings the trail court then held:

“In view of the above, the plaintiff has failed to convince us that he has all the forest area of Ijomu and Ijomu township. The plaintiff’s case is dismissed.”

It is obvious that the above judgment was based on the facts as deposed to by the Plaintiff and his witness vis-a-vis the facts as deposed to by the Defendant and his witnesses. Also the credibility of these witnesses must have been called into question. The trial court at any rate said it believed the P.W.11 and P.W.12. Unfortunately the trial court did not say which other witnesses is believed and which is disbelieved.

From the history of this case, it appears that the first Court of Appeal-the Upper Area Court, re-evaluated the evidence, made its own findings of fact and then reversed the judgment of the trial court and awarded the Plaintiff the declaration he sought. Was the Upper Area Court right in doing this This is the most crucial question in this appeal because the High Court preferred and restored the judgment of the trial court while the Court of Appeal Kaduna Division preferred and restored the judgment of the Upper Area Court in favour of the Plaintiff-the Respondent in this Court. If the Upper Area Court had the jurisdiction to re-hear the case, re-evaluate the evidence and make its own findings of fact, then it will be a simple straightforward fight between the findings, if any, and judgment of the trial court and the findings and judgment of the Upper Area Court.

Jurisdiction of the Upper Area Court

By Section 59(1) of the Kwara State Area Court (Edict) now Law No.2 of 1967:

“59(1) Any court exercising appellate jurisdiction in civil matters under the provision of this Edict may in the exercise of that jurisdiction:

(a) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and make any such order or exercise any such power as the court of first instance could have made or exercised in such case or as the Appeal Court shall consider that the justice of the case requires.

(b) ….

(2) In the exercise of its powers under this selection a court may hear additional evidence as it considers necessary for the just disposal of the case.”

The Upper Area Court in this case acted well within its powers in hearing the Plaintiff/ Appellant before it in elaboration of the points raised in his grounds of appeal and in hearing the Defendant/Respondent in reply thereto. I must also add that the powers of the Upper Area Court stated above are the powers of any appellate court.

Since the Upper Area Court, the Ilorin High Court, the court of Appeal Kaduna Division, and even this Court, the Supreme Court of Nigeria, are all appellate courts, they all share one thing in common and that is an understandable reluctance to interfere with findings of a fact of a lower court and a considerable hesitation in substituting their own views for those of the trial judge. This reluctance and hesitation both presuppose inter alia:

(1) That the trial court made specific findings on specific issues.

(2) That there as a dispassionate, proper and fair appraisal of the evidence given in support of each party’s case:-Akpagbue v. Ogu (1976) 6 SC. 79 at p. 97.

(3) That there was no misdirection of itself by the trial court:Fatoyinbo v. Williams 1 F.S.C. 87.

(4) That the finding is not perverse and against the natural drift of evidence:-Ntiaro v. Akpam 3 N.L.R. 9 ast p. 10

(5) That the trial court did not draw wrong conclusions from the accepted facts or facts as found:-Benmazx v. Austin Motor Co. Ltd. (1955) 1 ALL E.R. 326.

(6) That the trial court took proper advantage of the opportunity it had to see, hear and watch the demeanour of the witnesses:-Kuma v.Kuma 5 W.A.C A at p.9.

(7) That on the face of the record, it is both apparent and transthat justice has been done:-Egonu v. Egonu (1978) 11 & 12 S.C. 129.

It is against the background of all that I have stated above that any meaningful appraisal of the judgement of the Area Court in this case has to be made.

I shall now consider the Questions for Determination as formulated by Chief Williams in his Brief.

Question No.1:

“In what circumstances should an appellate court reverse a finding Of fact by the court of trial”

This question as framed seems too general, too wide and a bit academic. It is not down to earth as far as this case on appeal is concerned. The proper question or questions should be:

(1) Did the Area Court identify the issues in dispute between the parties

(2) If it did not no further inquiries need arise, for if the issues were not properly identified the verdict of that court can only by right per adventure-by sheer accident, or by extreme good luck, or both.

(2) If the issues were correctly identified, did the trial court make any specific finding on each such issue

(3) Where witnesses testified for both sides (here the Plaintiff gave evidence and called 14 witnesses, the Defendant testified and called 18 witnesses, the court itself called 2 witnesses in spite of the protestation of the Plaintiff) as was done in this case it is impossible not to do have a conflict of evidence. If therefore the testimonies of the witnesses conflict, then the trial court has a duty to believe some and disbelieve others specifically before a finding can be made-a finding based on the evidence the court chose to accept.

This is the correct approach to issues of fact and findings of fact. If this approach or something essentially near it was adopted by the Igbomina South Central Area Court, then it would be wrong for the Upper Area Court to interfere.

A close study of the record of proceedings in the trial court reveals that the Plaintiff’s case is based on the following:

(1) The Plaintiff based his claim on a grant of “land in Ijomu town and the forest surrounding it from Oloro the father of all Oro.”

(2) The Ba’a Family is one of the 9 groups called “Makin Oro”.

(3) Before 1973 no one interfered with rights of the Ba’a Family in and over the land in dispute.

The first issue would then be-Was there such a grant On this issue the Plaintiff gave evidence and called as his 10th P.W. one Bakare Lemamu, the Bale of Afin-Oro aged 90 years, who testified at p. 28 of the Record Lines 25-30:

“The land in Ijomu township was given to Ba’a and no other person was given and . . . It was my grandfather who came to settle at Afin together with Ba’a and others who gave Ba’a Ijomu town.”

The Defendant’s root of title was his ancestor Efundere who he claimed discovered the land in dispute during his hunting expedition. Because of the apparently conflicting versions of the root of title of the contestants, it was incumbent on the trial court to make a specific finding after believing one side and disbelieving the other. This the trial court failed to do. The court below in its own judgment at p.288 of the record observed:

“In its very lengthy judgment, which consists mainly of repitition of evidence of the witnesses (pp. 125 to 165) the trial court failed to evaluate the evidence of the witnesses or to state which of the witnesses’ evidence it accepted or rejected or to give reasonable explanation why it preferred one version to the other.”

I do not even think that the trial court anywhere specifically indicated that it preferred the case of the Defendant to that of the Plaintiff.

The trial court’s main objection of the Plaintiff’s case was that he failed to prove the boundaries of the land allegedly granted to him by the first Oloro of Oro:-“But what remains to be determined is the extent of the Ba’a’s land.” It is elementary that anyone claiming a declaration of title to land has to prove the exact area to which his claim relates. The Plaintiff called those who shared common boundaries with him on the land in dispute namely P.W.8, Jacob Abioye, P.W.11 Oyeyipo the Aro of Ora (whom the trial court stated categorically that it believed), P.W.12 Emmanuel Akolawole, the Asanlu Oro (also believed by the court), Chief Aro at p. 112 the Record during the inspection showed the court his boundary with the Ba’a Family and vehemently denied that he had any boundary with the Defendant of the Efundere family. These witnesses were not disbelieved. How else was the Plaintiff expected to prove the boundaries of the land in dispute

As to acts of possession arising out of the original grant and acts executed quite recently and not very remotely, the Plaintiff called P.W.4, Mathias Afolayan, Chairman of the Jehovah’s Witness Community at Ijomu who also showed the court on inspection (p. 114 of the record) the site of the Ba’a family gave them to build their church. The Plaintiff also called 6th P.W. Hezekiah Ibiotye who was also at the inspection and pointed out to the Court the area given him by the Ba’a Family. The 9th P.W. Joseph F. Otepola also gave evidence and pointed out the area granted to him by the Plaintiff’s family.

In other words, the Plaintiff gave evidence concerning the grant of the land in dispute to his family and called witnesses; he called all those who shared a common boundary with him; he gave evidence of the various grants made by his family to different organisations, churches, etc. He called the grantees as witnesses. What else is it that still remains for any claimant to prove to have a declaration of title I must confess that I do not know. The Plaintiff did complain at P.2 Lines 22-30 of the record that the “Efundere family in collusion with the community in the town tried to prevent people from paying us the usual tribute. We later realised that the Chief was supporting Efundere family.” Is it not shocking that after this allegation the trial court was brazen enough to call this same Chief Sule Akanbi, the Bale of Ijomu, as the court’s own witness to testify against the Plaintiff (see p.103 of the record). This was supposed to be “in the interest of justice” (see p. 103 line 4). Was there a conspiracy to deprive the Ba’s family of their land I do not know. What I do know is that the judgment of the trial court was perverse and against the natural drift of the evidence.

Chief Williams submitted, and rightly too, that where the traditional evidence of the parties conflict such conflicts are better resolved, not by watching the demeanour of the witnesses who testify, but by testing their evidence against the recent happenings within living memory. Traditional evidence is but a bit of ancient history. Its weight and value can be better assessed where there also exists factual evidence of contemporaneous acts and events. In this case, there was abundant evidence of the recent acts of possession of the Plaintiffs family in and over the land in dispute. The Ilorin High Court even complained that some of the acts were too recent. I have earlier on recounted the Plaintiff/Respondent’s various acts of possession which lent great support to his traditional evidence.

2nd Question for Determination:

“Was the Upper Area Court justified in reversing the judgement of the Area Court in this case”

Chief Williams’ second question for determination is the most direct and therefore the most important question in this appeal. Ordinarily, it is not the function of any appellate court to disturb the findings of fact of the trial court. There is no need citing an authority for the above proposition for the authorities are “legion for they are many”. But where, as happened in this case, the trial court did not even appreciate the issues in dispute; did not make specific findings of fact; did not indicate which witnesses it believed and which it did not believe, did not properly assess the case prosecuted by Plaintiff; did not consider the totality of the Plaintiff’s case, there the Upper Area Court, even though an appellate court, was in duty bound to intervene. The Area Court misdirected itself on so many vital issues. Dealing with the Plaintiff’s root of title, for example, the Area Court observed in its judgment at p.165 of the record:

“The Oloro of Oro who all the ‘Makin’ claim to have relationship with could not tell the court how the land was allocated to Makin. In view of the above we cannot say that the land in Ijomu belongs to Ba’a who is a Makin.”

The Oloro of Oro, Oba Michael A. Ajiboye, was a witness called by the Area Court itself. His evidence at p.111 of the record was inter alia:

“I do not know how land was given to the Makins in Oro district. It was done by my forefather. There are Makins in Ijomu.”

It will be wrong to conclude from the above that the Ba’a family has no land in Ijomu. There are other serious misdirections pointed out by the court below which all go to show that the Area Court failed to make proper use of the opportunity of seeing and hearing the witnesses.

My answer to question No.2 above therefore is that the Upper Area Court was fully justified in undertaking the evaluation and assessment of the evidence where the trial court failed to do so or did it wrongly. The Court of Appeal was also fully justified in preferring the judgment of the Upper Area Court to that of the trial court or the High Court. The preponderance of evidence was surely on the side of the Ba’s Family as the inspection of the locus in quo at pp. 112 to 116 of the record abundantly confirms.

In the final result it is for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother Kawu, J.S.C. which I now adopt as mine, I too, will dismiss this appeal and affirm the judgments of the Upper Area Court as well as the court below. There will be costs to the Respondent which I assess at N300.00

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SC.123/1983(2)