Alhaji Isiaka Garba & Anor V. Alhaji Aremu Banna (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

The appellants herein were the claimants before the High Court of Kwara State claiming, inter alia the following reliefs:

1. A declaration of entitlement to a statutory right of occupancy of a piece of land situate and being at Abata Baba Labata, Okelele, Ilorin,
2. An order of perpetual Injunction against the defendant/respondent, and
3. The sum of N500,000.00 as damages for trespass on the aforesaid land.

The brouhaha between the parties arose in respect of a claim by the appellants to a customary title of a large piece of land known, as Abata Baba Labata of Okelele, Ilorin Kwara State, covering the land in dispute, which according to the appellants, was granted to their ancestor by the 2nd Emir of Ilorin Oba Shitta who reigned from 1842 to 1861. Their ancestor was a warrior who migrated from Oyo lie (Old Oyo) in Oyo State. The appellants pleaded and testified that they kept and maintained the land, including the land in dispute, which was passed from their ancestor Olokunola to his descendants up to the present appellants. The appellants challenged the respondents for trespassing on a portion of the land where their ancestor’s mud house was built.

The respondent’s contention, however, was that one Yinusa Alabi the DW2 transferred the piece of land in dispute to him vide Exhibit AA1 and he constructed building thereon, which is yet to be completed. Yinusa Alabi, who testified that he sold the land to the respondent claimed that the land was granted, by one Balogun Gambari, to his ancestor called Memudu who migrated to Ilorin in 1914.

Parties joined issues and argued their respective cases. The learned trial judge, in his judgment delivered on 19th December 2013, concluded that the appellants had failed to prove their case and consequently dismissed the claimants/appellants’ case. The claimants/appellants were dissatisfied with that decision, and proceeded to file a notice of appeal on 17th February 2014 predicated upon the following five grounds:

1. The learned trial judge erred in law when on 19/1/2012 ruled that the claimants/appellants only filed a reply to statement of defence but they (claimants) could not lead evidence to prove the averments contained in the said Reply to statement of defence.
2. The learned trial judge erred in law when he concluded that: “the claimant is merely relying on the statement on oaths as proof of his case. It is trite that averments in the pleading do not amount to evidence and can never be so construed. However on the contrary, it has to be proved by evidence subject to the admission of other party” and thereafter dismissed the claimants/appellants’ case.
3. The learned trial judge erred in law when he concluded that the land in dispute was not described with certainty.
4. The learned trial judge failed to apply correct principles of law in the evaluation of the parties’ evidence.
5. The judgment of the trial court is against the weight of evidence.

The learned counsel for the appellant A. B. Jimoh, Esq narrowed down the foregoing five grounds to the following three issues for determination of this appeal:

1. Whether the supposed variance and/or contradictions in claimants’ pleadings and evidence, as highlighted by the trial judge, upon which the judgment of the trial court was based, were substantial enough to warrant outright dismissal of the claimants’ claims? (Relates ground 4)
2. Whether the learned trial judge dispassionately considered the claimants evidence before he concluded that the claimants failed to prove their case? (Relates to grounds 2 & 3).
3. Whether the Ruling of the trial court of 19/1/2012 that denied the claimants the opportunity to lead evidence in support of their pleadings and the rejection of admitted Exhibit (Exhibit A,) on 19/12/2013 do not occasioned miscarriage of justice? (Relates to Ground 1 & 5)

The respondent, however, raised the following two issues for determination:

1. Whether there are substantial and material contradictions in the evidence led by the appellants before the trial court to justify the dismissal of their claim? (Relates to grounds 3 & 4)
2. Whether the trial court adequately considered the appellants’ evidence before arriving at its conclusion? (Relate to grounds 1, 2 and 5).

While the first issue raised by both parties are on all fours, the more elegant and precise second issue formulated by the respondent adequately subsumes the other two issues raised by the appellants. Thus, the more compendious and exquisite two issues raised by the respondent are adopted for the determination of this appeal.

Issue One

Whether there are substantial and material contradictions in the evidence led by the appellants before the trial court to justify the dismissal of their claim?

The learned counsel for the appellants A. B. Jimoh, Esq contended that the trial court had failed to consider and apply the correct principle of the law to the evidence adduced by the appellants and thereby wrongly dismissed the appellants’ claim.

The learned counsel for the appellants submitted that the four issues listed by the learned trial judge as being in consistent or contradictory based on his findings, which lead to dismissal of the appellants’ claim were not based on proper evaluation of evidence. It was argued that the appellants’ answers to the cross examination formed the main evidence were wrongly evaluated by the learned trial judge leading to the wrong conclusion that the “the claimants did not prove their claims to entitle them to the reliefs claimed.”

The appellant’s counsel urged this court to re-evaluate the evidence adduced since it is in as good a position as trial court to evaluate the entire evidence. See Ayorinde & Ors v. Sogunro & Ors (2012) 5-7 MJSC (Pt.III) 1 at 27; Olanrewaju v. Governor, Oyo State (1992) 11/12 SCNJ 92 at 115; A.B. Petroleum Inc. v. Momah (2013) 1 M.J.S.C. 84 at 110.

The learned trial judge firstly found that the testimony of PW1 and 2 was to the effect that Sadiku was their grandfather but subsequently turned around to say that Sadiku was not their grandfather. On this, ground, among others, the learned trial judge found that such evidence was contradictory and that the appellants had failed to prove ownership of the land in dispute. The learned counsel for appellants urged the court to treat the contradictory testimonies as common human mistake and not substantial enough to warrant dismissal of the appellants’ claim.