Sidiku Kasaduku V. Akanbi Atolagbe (1973)
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B. A. COKER, J.S.C
The case is concerned with an alleged trespass by the defendant into the land of the plaintiff. The trial court had held that the defendant was in trespass but the High Court on appeal held that the judgment was not based on a proper consideration, let alone, appraisal of the evidence before the court.
The plaintiff’s case assumed that his ancestor as the owner of the radical title, had granted the land in dispute to one Sarkin Dongari whose duty it was to look after the captives who were settled on the land. Thus the plaintiff in order to succeed must give satisfactory explanation of the actual possession of the defendant and his progenitors. In fact, there was no such satisfactory explanation and the court of trial, i.e., the Upper Area Court of Ilorin, nowhere expressed a considered view on the evidence actually given in the case.
On the other hand, the High Court analysed the entire evidence as it was entitled to do, and came to the conclusion, rightly, in our view, that the story of the defendant that he and his forebears have always owned the land, was a more probable one than that of the plaintiff.
Before us, the argument canvassed was that the judgment of the High Court on appeal was against the weight of evidence and authorities were cited to show that a Court of Appeal should not without justification interfere with findings of fact made by a trial court. We are in agreement with this proposition of law but we are satisfied that the Upper Area Court failed to take advantage of the opportunity it had of seeing and hearing the witnesses and of ascribing probative value to the evidence they gave. Many of the witnesses called by the plaintiff actually gave evidence which contradicted the plaintiff’s case.
We conclude that the ground of appeal argued on behalf of the plaintiff must fail and we dismiss the appeal. The appellant must pay to the respondent the cost of the appeal fixed at N70.
SC.99/1971
