Commission Omorhirhi & Ors. V. Michael Enatevwere (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The plaintiff’s claim as endorsed on the Writ of Summons is –

“The plaintiffs claim against the defendants jointly and severally is for the sum of N20,000.00 (Twenty thousand Naira) being special and general damages for the wrongful act of the defendants when on the 12th day of December 1981 at Okozi Village, within the jurisdiction of this Honourable Court, the defendants trespassed on plaintiff’s farm without the consent and or authority of the plaintiff and indeed against his will and damaged his economic crops/trees to wit: Cassava stems, sugar cane, okra, tomatoes and melon.”

The claim was particularised as follows:-

“30,000 matured cassava stems at 30k each…. N9,000.00

10,000 matured sugar cane at 50k each… N5,000.00

5,000 tall okro at 50k each……… N2,500.00

1,000 fruit bearing tomato plants at 50k each… 500.00

2,000 matured melon balls at 20k each……… 400.00

General Damages………….. 2,600.00

Total……………………. N20, 000.00

The claims were denied. Pleadings were ordered and exchanged and issues joined. The case was set down for hearing. The parties called evidence to support the averments in their respective pleadings. In a judgment delivered by the learned trial judge (Akenzua J.) in which he meticulously considered and evaluated the evidence before him he found in favour of the plaintiff that-

“There is no evidence in support of the submission of the learned counsel for the defendants that stealing is the subject of the plaintiffs report. I therefore reject it. The nature of the defence pleaded in this case is a claim of title to Okozi land and a justification under customary rights granted to people including the plaintiff’s father, Oriche to farm in Okozi land. No plan of Okozi

land is tendered and no evidence of traditional history is given except evidence of dispute and quarrels over the said land by members of Adobor Family and the members of the Plaintiffs family. Despite these deficiencies in the defendants’ case, the defendants claim no relief in their Statement of Defence. I am satisfied that no defence has been filed against the plaintiffs action. I am consequently satisfied that, on the balance of probabilities, the plaintiff has proved the trespass he had complained of; and has shown both from his own evidence as well as the evidence of the defence that the defendants did in fact enter the plaintiff’s farm and harvested or damaged the said crops.

As to damages, I am satisfied that the plaintiff had successfully proved the various items of his special damage. He called one, Oritsegbubemi Asifo Ajuya, P.W.3 and gave evidence of the prices attachable to the various crops claimed damaged or harvested by the defendants. This witness tendered Exhibit A-A1 which are documents titled:

“States Price List (A)

Confidential

Crop Valuation

and

Federal Price List (B)

Price List – All Federal Govt.

Projects”.

Never was this witness contradicted in his evidence as to the prices assigned to the various items of special damages claimed by the plaintiff. No alternative figures or prices were suggested to the witnesses or to the plaintiff himself. The defence appeared to be satisfied with the plaintiffs evidence on this and that of his expert witness P.W.3. I am therefore left with no alternative but to

accept the evidence of the plaintiff and his witness, the P.W.3. I therefore hold that the plaintiff had proved his claim on the Special Damages. On the whole of the evidence, the plaintiff has proved his case and he is entitled to judgment as follows:-

(a) 30,000 Cassava at 16k ………………. N4,800.00

(b) 10,000 sugar cane at 10k…………….. 1,000.00

(c) 5,000 tall okro at 20k ……………….. 1,000.00

(d) 1,000 tomatoes at 50k ………………. 500.00

(e) 2,000 melon at 20k ………………….. 400.00

Award (a), (b) and (c) in accordance with the undisputed prices contained in Exhibit A-A1 while Award (d) and (e) is the undisputed prices as per the plaintiff himself as not contained in Exhibit A-A1. In addition to the above, the plaintiff is entitled to General Damages assessed at N2,000.00 with cost against the defendants assessed at N200.00.

Thus the defendants shall pay to the plaintiff a total sum of N7,700.00 as special damages, N2,000.00 as general damages and N200.00 costs.”

Henceforth, both the plaintiff and the defendants will be referred to as the respondent and the appellants respectively.

Dissatisfied with the judgment of Akenzua J. the appellants appealed against it to the Court of Appeal, Benin Division. Before that Court, five grounds of appeal were filed and canvassed. These grounds were supported by the appellants’ Brief of Arguments. The respondent also filed Brief and during the hearing of the appeal in the Court of Appeal, learned counsel for both the appellants and the respondent made oral submissions. In a unanimous judgment of the Court of Appeal delivered by Musdapher, J.C.A., the appeal was dismissed. The judgment of the trial Court was affirmed and N250.00 costs was awarded to the respondent.

With the leave of the Court of Appeal granted on 17th February 1986, the appellants have now further appealed to this Court on grounds of law and mixed law and facts.

Before discussing the issues raised in this appeal I shall briefly state the facts involved in the case.

The respondent, Michael Enatevwere, who is also the respondent is Urhobo by tribe and lives in Orerokpe Village very close to Okozi Village. He has a farm in Okozi Village. In 1979 he started preparing the farm for planting crops and by 1980 the farm was ready and he planted cassava; tomatoes, sugar cane, okra and melon. Throughout the time he was preparing the farm and to the time he planted his crops nobody challenged or disturbed him.

In 1981, when the crops were ready for harvesting, the appellants entered upon the farm harvested and removed the crops. As a result the respondent filed an action against the appellants claiming the Sum of N20,000.00 as special and general damages for the appellants’ acts of trespass to the farm and the crops he planted therein.

In the appellants’ Brief of Arguments the following issues were formulated for determination –

“1. Is Section 137(1) of the Evidence Act applicable to the case or not

2. Were the Justices of the Court of Appeal justified in affirming the decision of the trial Court when that court allowed the plaintiff/respondent to make a case contrary to paragraph 3 of his Statement of Claim
3. Were the Justices of the Court of Appeal right in affirming the decision of the trial Court when that court placed reliance on and belief in and acted on the evidence of plaintiff-respondent, P.W.1 and 2 when the respondent had earlier told the Police in Exhs. C & D that he was the only one who saw the appellants harvesting his crops and no one else
4. Was there a defence to the action or not If so were the Justices of the Court of Appeal right in affirming the decision of the trial Court which said there was no defence to the action”

The three issues formulated were accepted and adopted by the respondent and same were re-produced at pages 4 – 5 of the respondent’s Brief.

In arguing issue (1) which is covered by ground 1 of the grounds of appeal, it was the contention of the appellants that in order for the respondent to succeed in his claim, the standard of proof required must satisfy Section 137(1) of the Evidence Act since the commission of a crime is directly in issue. He referred to paragraph 3 of the Statement of Claim and some excerpts from the printed record. He also made reference to Section 383 Cap. 48 Vol. II Laws of Bendel State of Nigeria. In further support of his argument he cited

Okuatume v. Obabokor (1966) N.M.L.R. 47 at 48 and Nwankwere v. Adewunmi (1967) N.M.L.R. 45 at 47. He tried to distinguish the two cases supra from Ikoku v. Oli (1962) 1 All N.L.R. 194 in which it was decided that commission of crime was not directly in issue.

In reply to the submission above, learned counsel for the respondent submitted that Section 137(1) of the Evidence Act has no application in the case as the respondent’s claim was for a remedy against the acts of trespass committed by the appellants on his land and the consequential damage resulting therefrom to his crops. In support of his submission he referred and relied on Clerk & Lindsell on Torts (14th Edition) Paragraph 1335 at page 787; Herper v. Charlesworth (1825) and B & C at 574 and Okolo v. Uzoka (1978) 1 L.R.N. 192.

In order to find out whether or not the commission of crime is directly in issue in this action, the Statement of Claim as filed by the respondent should be examined. It is a short one and I reproduce it hereunder:-

“1. The plaintiff and the 1st defendant are farmers residing near Odiete Junction, Orerokpe, while the 2nd – 5th defendants are also farmers residing at Oba Village, Orerokpe.

2. On or about the 12th day of December, 1981, at Okozi Village, within the jurisdiction of this Honourable Court, the defendants jointly and severally damaged/harvested plaintiff’s crops/economic trees on plaintiff’s large acreage of farm without the consent and authorization of the plaintiff and indeed against his will.

Particulars of (Special) Damages

30,000 matured cassava stems at 30k each ….. N9,000.00

10,000 matured sugar cane at 50k each …………N5,000.00

5,000 tall okra at 50k each …………………………. 2,500.00

1,000 fruit bearing tomatoe plants at 50k each …….. 500.00

2,000 matured melon balls at 20k each……………….. 400.00

General Damages …………………………………….. 2,600.00

Total…………..N20,000.00

3. The plaintiff witnessed the wrongful acts of the defendants as above adumbrated with other members of his family and thereafter lodged a report against the defendants at the Police Station who refused and or neglected to charge the defendants but referred the matter civil.
4. Plaintiff shall at the trial of this action rely on all legal and equitable authorities and or call expert evidence to substantiate his claims.
5. By reason of the damages to plaintiff’s crops/economic trees by the defendants as aforesaid, the plaintiff has suffered damage, inconvenience and loss of profits and has demanded the sum of

N20,000.00 as special and general damages for the infringement of his legal right but the defendants have refused and or neglected to pay the same wherefore plaintiff was compelled to institute this action and claim as per the Writ of Summons.”

On strict examination of the Statement of Claim quoted supra I am unable to see or to discern from it where the commission of crime was pleaded as contended by learned counsel for the appellants.

The learned trial judge adequately treated this issue in his judgment where he said-

“As to the submission by the learned counsel for the defendants that the claim formulated in paragraph 2 of the Statement of Claim amounts to a commission of crime. I do not, with the greatest respect to the learned counsel, agree that this is tenable.

It is urged upon the Court to hold that by the use of expression “Severing of the Cassava” amounts to stealing. In paragraph 2 of the Statement of Claim and, indeed, in the Writ of Summons, there is nowhere this expression was used by the plaintiff. If the expression came out in the oral evidence of the plaintiff, it must be understandable because the plaintiff gave his evidence in Urhobo language through an interpreter. So also his witnesses. What is alleged in the Statement of Claim is “damaged/harvested plaintiffs crops/economic trees”. If “severing” is used, learned counsel did not direct the Court to that expression during and after his address. Even if the expression “Severance” were used, it will not ipso facto connote stealing because there are two actions displayed by the person who severed. First by entering into the farm then touching the crops and then severing them from the plants in trespass. After severance, which is the first of the action taken by the severer, the crops are taken away then this a second action which is stealing of the crops. Thus if it is the contention of the learned counsel that his clients severed the crops from the plant or from the land then it is still trespass that they ever went into the land at all to touch the crops before severing them from the land. The acts of the person who went into a com field and there plucked all the corns from the field is a trespasser as well as being a thief, if it is known and proved that after committing the trespass he took possession of the crops he had plucked. In a situation like this an action for trespass can be at the instance of the owner of the com field if it is the defence of the defendant is that as owner of the land, the farm should not have been made by the plaintiff. It is trespass to remove any part of the soil of land in the possession of another or any part of the building or other erection which is attached to the soil so as to form part of the reality. It is a recognised act of trespass to sever anything attached to the soil or land. Thus in Clerk & Lindsell, 14th Edition, at page 787, paragraph 1355, it is laid down that the trespass may involve the severing and carrying away of things attached to the soil. What suffices here at the moment is that severance is trespass if done on another’s property. Being satisfied, therefore, that this is trespass, my next consideration is to see whether from the evidence, the plaintiff has proved his case. Thus the issue of proof under Section 137(1) Evidence Act is no longer applicable.”

The Court of Appeal after examining the pleadings and the evidence adduced as regards this issue, came to the same conclusion as did the learned trial judge when Musdapher, J.C.A., delivering the unanimous judgment of the Court said-

“I have carefully examined the pleadings in this case and the issue of stealing or any crime does not arise in this case. Section 137(1) of the Evidence Act only applies where there is a specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be. See Nwobodo v. Onoh & Others (1984) 1 S.C. 1 at 40. See also Ikoku v. Oli (1962) 1 All N.L.R. Vol. 1 part 1194. The fact that the respondent had reported the appellants to the police and had accused them of criminal acts as in Exhibits C & D, does not necessarily mean he has grounded or based his case directly on the issue of a criminal conduct. His case, in accordance with his Statement of Claim is completely based on trespass and damages to his crops. The question of stealing the crops is not an issue between the parties.”

In WORDS AND PHRASES LEGALLY DEFINED (2nd Ed.) Vol. 5 at page 222, the word “Trespass” is given the following definition-

“Trespass is a wrongful act, done in disturbance of the possession of property of another, or against the person of another, against his will. To constitute a trespass the act must in general be unlawful at the time when it is committed………Whoever is in possession, may maintain an action of trespass against a wrongdoer to his possession.”

…..

“Every unlawful entry by one person on the land in the possession of another is a trespass for which an action lies … (and) a person trespasses upon land if he wrongfully set foot on, or rides or drives over it, ….. or pulls down or destroys anything permanently fixed to it or wrongfully takes minerals from it….”

In Godwin Nwankwere v. Joseph Adewunmi 1967) N.M.L.R. 45, the Federal Supreme Court, when considering the applicability of Section 137(1) of Evidence Act to civil proceedings said at page 48 –

“The section applies where “the commission of a crime by party to any proceedings is directly in issue”. The Act gives a number of words and phrases a special and precise meaning and in construing any particular provision of the Act it is essential to give effect to that meaning. Section 2 contains a definition of “fact in issue” which is far from including every allegation which might properly be made or denied in a pleading. The definition reads-

“fact in issue” includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows’

Fact “directly in issue” is not defined. Section 6 declares that evidence may be given of facts in issue and of “such other facts as are hereinafter declared to be relevant”. Section 9(1) states that “any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact”, which indicates that facts showing motive are not in the ordinary case to be included among the facts in issue but among the other facts declared to be relevant. In our view that is the way to regard the evidence of bribery in this case. The evidence that the defendant refused to return the certificate in order to bring pressure on the plaintiff to pay him the final #5 showed a motive for his act, but as the plaintiff could have succeeded in his claim without proving any motive it cannot be said that the alleged motive was a fact in issue or directly in issue.”

From the exposition of the law above, it is clear that where in a civil claim, a person can succeed without proving criminal motive, the motive cannot be regarded as a fact in issue in order to apply the provision of Section 137(1) of the Evidence Act. The respondent could have succeeded as he did, without proving any criminal motive in the appellants’ act of trespassing upon his land and harvesting/or destroying his crops. The statement of defence filed by the appellants also goes to confirm that the commission of crime was not in issue as the parties were litigating over the possession and ownership of the disputed land. Paragraphs 2, 18 and 19 of the Statement of Defence read

“2. The defendants deny paragraphs 2, 3 and 5 of the Statement of Claim. Defendants did not trespass on and destroy plaintiffs crops as alleged. Plaintiff suffered no damage.

18. Sometime after, the plaintiff and his people uprooted the cassava of the 1st defendant from the land in dispute, the 1st defendant reported this matter to the Police. The plaintiff and his people were arrested. They were later discharged on the ground that the land was in dispute. Shortly after this, the plaintiff filed this action against the defendants.
19. The defendants have rubber trees, cassava, yams, sugar canes, plantains, troughs and ponds on the land.”

The issues joined in the pleadings were simply on trespass and the subsequent destruction of the crops on the land in dispute. The precise forms into which the pleadings are cast, does not matter; the judge will look at the substance of the allegation.

The issue raised in Grounds 2 and 3 of the appellants’ Grounds of Appeal is directly connected with ground 1, and as such they must stand or fall by it.

As shown in the judgment of the Court of Appeal, Exhibits C & D the statements made to the police by the respondent are of no effect to either the appellants’ or the respondent’s case in the manner they were introduced into the proceedings as evidence. The simple fact that the respondent averred in paragraph 3 of the Statement of Claim that he complained to the police as regards the appellants’ acts of trespass does not, in my view turn the complaint into a criminal one. As shown in that paragraph, the police refused to take any action as they regarded the complaint a civil matter between the parties. The appellants did not specifically plead Exhibits C and D in their Statement of Defence. At any rate, the best use that the appellants could have made of Exhibits C and D was to cross-examine the respondent on them when he was giving his evidence, in order to impeach his credibility. See Sections 208 and 209 of the Evidence Act. In the case of Ala de v. Aborishade (1960) 5 F.S.C. at 173, the Federal Supreme Court while commenting on the admissibility and use of Statements made by persons in previous proceedings said –

“that evidence given in a previous case can never be accepted as evidence by the court trying a later case except when section 34(1) of the Evidence Act applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that. The pleadings in an earlier case may, however, be referred to show what was, in that earlier case, the claim or defence sought to be set up and to point to inconsistency on the part of one party or the other to the later case.”

Exhibits C and D were tendered during examination in chief of the 1st Defence Witness which is against the laid down principle – see Owanso Agbeyin v. The State (1967) N.M.L.R. 129 and Ifenedo v. The State (1967) N.M.L.R. 200. It cannot also be used or regarded as evidence upon which the court can act – see R. v. Joshua (1964) 1 All N.L.R. 1 and Onubogu & Anor. v. The State (1974) 9 S.C.1 at 20. The respondent was at no time in the proceedings before the trial court confronted with Exhibits C and D as required by Section 198 of the Evidence Act. See Alade v. Aborishade (1960) F.S.C. 160.

The appellants averred in paragraph 20 of their Statement of Defence that when they went into the land in dispute in possession of the respondent to stop the purported acts of trespass by the respondent’s servants, the respondent complained to the police, as a result of which the appellants were arrested but later released when they discovered the complaint was false; this in my view, did not specifically plead Exhibits C & D, the purported statement of the respondent to the police. It was the appellants’ case that the respondent accused them of stealing cassava and the burden was on them to prove that allegation. In their pleadings there is no averment that the respondent accused them of stealing. See Benson Ikoku v. Enoch Oli (1962) 1 All N.L.R. 194.

This disposes of the appellants’ complaint as contained in Ground 6 of the Grounds of Appeal. Accordingly, both grounds 1, 2, 3 and 6 of the Grounds of Appeal fail and are dismissed.

Grounds 4 and 5 of the Grounds of Appeal complain of insufficiency of evidence to sustain the judgment of the trial court.

The appellants’ contention under Ground 5 is that “once it was shown that the respondent’s statement to the police, Exhibit ‘D’ made at the earliest opportunity is inconsistent with the evidence in court the proper thing for the court to do was to disregard the evidence of the plaintiff in toto and hold that the plaintiffs case is not proved as required by law”; and in support of this the case of Joshua v. The Queen (1964) 1 All N.L.R. 1 at pp. 3 and 4 was cited. Learned counsel also submitted that the trial court did not consider the evidence of D.W.1, police Sergeant Katsina Ekiyekunmo who was said to have visited the farm trespassed upon by the appellants.

As for Ground 4 it was the learned counsel’s submission that the learned Justice of the Court of Appeal misdirected themselves in law in up holding the judgment of the trial court when that court had misdirected itself by holding that the appellants filed no defence to the action, and also claimed no relief. He referred to paragraphs 1 and 20 of the Statement of Defence and submitted that there was a general traverse to respondent’s pleadings, as well as a prayer to dismiss the respondent’s claim. The case of Services Press Ltd. v. Nnamdi Azikiwe 13 W.A.C.A. 301 was cited in support of the general traverse.

In reply to the submission above, learned counsel for the respondent referred to the evidence of D.W.1 and D.W.2 and submitted that by that evidence, the appellants had confirmed the acts of trespass on the respondent’s land. And on the complaint about contradictions in the respondent’s evidence and also establishing a case contrary to his pleadings, learned counsel submitted that the contradictions, if any, are not so material to affect the respondent’s case and that the evidence led was in line with his pleadings.

As rightly pointed out by the Court of Appeal, both Exhibits C and D were not put to D.W.1 to enable him explain the alleged contradictions between them and his evidence on oath. As I have earlier on said, Exhibits C and D were not pleaded by the appellants and therefore the respondent could not have joined issue on them. The Court of Appeal has adequately dealt with this issue in the lead judgment of Musdapher, J.C.A.

A party shall not be allowed to rely upon a defence which is based on a fact or facts not stated in his statement of defence, unless he alleges such a fact or facts in his pleading by way of special defence. He must allege in his Statement of Defence any fact not stated in the statement of claim on which he relies in defence as establishing fraud and such other crime or any fact showing illegality – See Albert Adeoye v. Ibidun Jinadu (1975) 5 S.C. 102 and U.A.C. Ltd v. James Eggay Taylor 2 W.A.C.A. 70 at 71 where the Privy Council said –

“In the opinion of their Lordships there is no rule which is less subject to exception than the rule that charges of fraud, and a fortiori charges of criminal malversation or felony, against a defendant ought not to be made at the hearing of the action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged so that the defendant comes into court prepared to meet them.”

On the same issue relating to allegation of crime – see also E. N. Tamaklae v. The Basil Trading Co. Ltd. 6 W.A.C.A. 231 and S.Usenfowokan v. Sule Salami Idowu (1969) N.M.L.R. 77.

Pleadings must be sufficient, comprehensive and accurate; as their main functions are to ascertain with such degree of certainty as humanly possible the various matters in dispute among the parties and those which there are agreements on them. Morenatu Oduke & Ors. v. Kasumu & Anor. (1966) N.M.L.R. 28. This will stop either party from surprising the other by raising an unforseen issue ..

Reading the statement of defence as a whole, particularly paragraph 2, one would concede to the appellants that the germane issue raised and averred in paragraphs 2, 3 and 5 of the Statement of Claim, has been traversed. Paragraph2 of Statement of Defence provides –

“The defendants deny paragraphs 2, 3 and 5 of the Statement of Claim. Defendants did not trespass on and destroy plaintiff’s crops as alleged. Plaintiff suffered no damage.”

And in paragraph 20 of the Statement of Defence, relief was claimed.

It reads-

“The defendants contend that the action is very speculative and gold-digging and that it should be dismissed with costs against the plaintiff.”

In my view the averments in paragraph 2 of the Statement of Defence supra contain sufficient traverse to averments in paragraphs 2, 3, and 5 of the Statement of Claim, thus joining issues, while paragraph 20 of the Statement of Defence also contains relief by praying the court do dismiss the action with costs.

A traverse may be by simple denial of the plaintiff’s allegation. But where a defendant fails to deny specifically an allegation of fact in the statement of claim and a denial cannot be reasonably inferred from the defendant’s pleadings, that fact will be taken as admitted and therefore regarded as established at the hearing without any further proof. See Samson Ajibade v. Miyowa & Anor. (1978) 9 & 10 S.C. 1 and Eko Odume v. Ume Nnachi & Ors. (1964) 1 All N.L.R. 329. Although it is not sufficient to make a general denial of the facts alleged in the plaintiff’s pleadings, but by common practice, this has now come to be accepted as sufficient traverse if put in the following standard and recognised form –

“Save as is hereinbefore (or hereinafter) admitted the said defendant denies each and every material allegation of fact, contained in the statement of claim as if same were set out herein and

traversed seriatum.”

See Mandillas & Karaberis Ltd. v. Lamidi Apena (1969) N.M.L.R. 199 and Edward Attah & Ors. v. Chukwurah Nnacho & Ors. (1965) N.M.L.R. 28, particularly at page 31 where the Supreme Court in considering a general traverse which is, in substance like the one quoted supra, said-

“Now it seems clear that the cumulative effect of these two paragraphs is that the appellants joined issue with respondents in respect of all the lands described in the pink area of Exhibit 2. By common practice a general traverse in the forms of paragraph 15 of the Statement of Defence has always been accepted and when employed it puts the opponent to proof of the facts stated or alleged.”

The statement of the learned trial judge that the appellants did not file a statement of defence to the respondent’s action complained of in this ground, did not in my view affect the decision arrived at by the judge. Before making the pronouncement he had already considered the evidence adduced by the parties in support of facts averred in their respective pleadings and made findings in favour of the respondent. He said –

“The defence of title to Okozi land put up by the defendants does not cover the nature of trespass alleged committed by them on the plaintiff’s crops/economic trees.”

….

“The nature of the defence pleaded in this case is a claim of title to Okozi land and a justification under customary rights granted to people including plaintiffs father, Oriche, to farm in Okozi land. No plan of Okozi land is tendered and no evidence of traditional history is given except evidence of dispute and quarrels over the said land by members of Adobor family and the members of the plaintiffs family….

I am consequently satisfied that on the balance of probabilities, the plaintiff has proved the trespass he had complained of; and has shown both from his own evidence as well as the evidence of the defence that the defendants did in fact enter the plaintiffs farm and harvested or damaged the said crops. As to Damages, I am also satisfied that the plaintiff had successfully proved the various items of his special damage. “As for the contradictions complained of by the appellants, which are in relation to Exhibits C and D and the evidence given by the respondent on oath, I have already stated that Exhibits C and D were not pleaded and are therefore not evidence before the court.

The respondent was not even confronted with them to explain the inconsistencies or contradictions, even if to say they were pleaded and properly admitted. The conclusion reached upon by Musdapher, J.C.A. in the judgment had adequately dealt with this issue, and I need not say more than that.

It is not the business of the appeal court to interfere with the findings of fact by a trial court which are justified and supported by the credible evidence adduced. Where the appeal revolved around issues of fact and there was nothing on the record to show that the lower court was erroneous in those findings, the Court of Appeal would dismiss the appeal. See Lucy Onowah & Anor. v. J.J.I. Iserhien in Re Lucy Onowah -Appellant (1976) 9-105 S.C. 95 and Popoola Olubode & Ors. v. Alhaji A. Salami (1985) 4 S.C. 41.

Both grounds 4 and 5 must also fail.

On the whole, the appeal fails and it is dismissed. The judgment of the trial court which was affirmed by the Court of Appeal is hereby confirmed. The respondent is awarded N500.00 costs against the appellants.A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, WALI, J.S.C. and I entirely agree with his reasoning and conclusions.

It seems that the appellants made heavy weather of Section 137 of the Evidence Act. From the Writ of Summons filed by the respondent, and from pargraph 2 of his statement of claim, it is clear that the cause of action was trespass and consequential damages. The High Court and the Court of Appeal had made findings that crime was not in issue in this case.

I see no justification to interfere with those concurrent findings. It is well established that Section 137 of the Evidence Act will only apply when crime is directly in issue Ikoku v. Oli (1962) 1 All N.L.R. 194; Fadare v. Attorney-General of Oyo State (1982) 4 S.C.1. This appeal does not have much substance, and I too do dismiss it. I abide by all the orders made by my learned brother, WALI, J.S.C., including the order for costs.

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SC.196/1986