Jimoh Garuba V. Isiaka Yahaya (2007)
LAWGLOBAL HUB Lead Judgment Report
A. AKINTAN, J.S.C
The appellant, as plaintiff, commenced this action at Omu-Aran Upper Area Court in Kwara State in a representative capacity against the respondent, also in a representative capacity. His claim was for declaration of title to a parcel of land lying and being at Sapati Oloko Nla Osin in Asa Local Government Area of Kwara State. The claim was not admitted by the defendant and as such the parties led evidence in support of their rival claims. To that end, the plaintiff (now appellant) called four witnesses while the defendant (now respondent) called seven witnesses. At the close of evidence for the defence, the trial court visited the locus In quo before delivering its reserved judgment.
The plaintiff’s case was that the land in dispute belonged to the plaintiff’s fore-father, Oladejo, a son of Afonja. Oladejo was said to have settled on the land which started from Osin Budo Are where he first settled and extended his farming land up to Modi village and shared boundary with Jalimodi Alale and Adiloju Suhu. Oladejo, the plaintiff’s said ancestor, did not meet anybody on the land when he settled thereon apart from those with whom he shared boundaries.
The plaintiff then traced his ancestry from Oladejo to the present members of the family. He claimed that their title on the land had never been challenged. The action was instituted when the defendant, Alfa Tafa, started to build his house on part of the land without seeking for permission from the family. He was challenged but he rebuffed them.
The defendant denied the plaintiff’s claim and set out a rival claim to the entire land. The defendant contended that the land belonged to his great grandfather called Musa who came from Oyo Oranmiyan (first Oyo). When Musa arrived on the land, there was no settlement in the whole area. The man was the first person to settle there and the whole area was first called Budo Musa. But that name was later changed to Oloko Nla village. Later, one Digunlese came to join Musa Oloko Nla. But Digunlese later moved to a nearby area called Omoroko also called Aba Digunlese. One Sanni, a junior brother of Digunlese also came and settled at Oko Odo Ile close to Digunlese. The contention of the defence was that there was an agreement between Kelani who succeeded Musa on the land that Sanni and his brother, Digunlese, would be paying tributes annually for the use of the portion of land they occupied. They and their successors were paying the agreed homages ever since then.
The defendant denied that his family ever shared boundary with the plaintiff’s family. Rather, they claimed that they were tenants on the land they occupied. The Upper Area Court entered judgment for the plaintiff/ appellant. But on appeal to the High Court, the appeal was allowed and the plaintiff’s claim was dismissed. The plaintiff’s appeal to the court of Appeal was dismissed. The present appeal is from the decision of the Court of Appeal dismissing the plaintiff’s appeal. The parties filed their briefs in this court. The appellant filed an appellant’s brief and an appellant’s reply brief while the respondent filed a respondent’s brief. The appellant formulated the following four issues as arising for determination in the appeal:
“1. Whether it was proper for the Court of Appeal to have simply affirmed the decision of the Omu-Aran High Court and dismissed the appellants’ appeal without any supporting evidence.
- Whether the Court of Appeal was right when it found that it was proper for the Omu-Aran High Court to have re-evaluated and reconsidered the entire evidence and drew different inferences from that of the trial Upper Area Court.
- Whether on the preponderance of evidence the plaintiff/appellant is entitled to a declaration of title over the land in dispute.
- Whether it was proper for the Court of Appeal to have dismissed the appellant’s appeal merely on the procedure adopted by the trial Upper Area Court in first evaluating the evidence of defending/respondent before that of the plaintiff/appellant.”
The respondent, however, narrowed down the issue to one in the respondent’s brief. The single issue is as follows:
“Whether it was proper for the Court of Appeal to have affirmed the decision of the Omu-Aran High Court and instead dismissed the plaintiff/appellant’s appeal.”
The respondent raised a preliminary objection to the competency of the appeal. But this was abandoned at the hearing before this court.
The main attack of the lower court’s judgment, as canvassed in the appellant’s issues 1, 2 and 3 is that both the lower court and the Omu-Aran High COURT were in error when the two courts held the Omu-Aran Upper Area Court was wrong in the conclusions and inference drawn from the totality of the evidence led before it. It is submitted that the basis on which the Court of Appeal premised its reason for dismissing the appellant’s appeal is not supported by either the evidence led at the trial or from the judgment of the trial Upper Area Court. The re-evaluation of the entire evidence led at the trial by the High Court is said to be totally untenable and wrong. Reference is made to the modes of proving ownership of land as enunciated in Idundun v. Okumagba (1976) 10 NSCC 445 at 453, (1976) 9-10 SC 227 and Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41, (1985) 16 NSCC (Pt. 11) 838 at 848, namely, by traditional history, by estoppel per rem judicatam which approximate to production of document of title, and by acts of ownership such as allocation to others or allowing others to use part of the disputed land which includes receiving rents or tributes. It is then submitted that the findings made by the Omu-Aran High Court confirmed that there were cogent traditional evidence given by the appellant at the trial to warrant and support the decision of the Upper Area Court in favour of the appellant. It is argued that there was no basis for the High Court to re-evaluate and reconsider the evidence led before the trial court.
The previous judgments tendered at the trial as exhibits P1 and P2 were said to have been tendered to show that the plaintiff/appellant’s father once had a dispute over the land in dispute with one Sunmonu where the court gave judgment in his favour and not that they were tendered to raise the issue of res judicata as misconstrued by both the High Court and the Court of Appeal. The trial Upper Area Court was therefore right in relying on the said document in giving judgment in favour of the plaintiff/appellant.
The point raised and canvassed in the appellant’s issue 4 is the criticism of the trial court’s mode of evaluating the evidence led at the trial. It is alleged that the lower court was critical of the trial Upper Area Court in that it started by first evaluating the evidence led by the defendant before embarking on that of the plaintiff. This is said to be wrong on the part of the lower court in that what is required of an Upper Area Court is generally to do substantial justice devoid of any technicalities. It is submitted that since the Upper Area Court did substantial justice in the case, there was totally no justification in tampering with its decision or re-evaluating the entire evidence.
The respondent has argued in the respondent’s brief that all the attacks of the appellant were directed against the judgment of the Omu-Aran High Court and not the Court of Appeal judgment which is on appeal in this court. References are made to the grounds of appeal filed and it is argued that from their particulars, they never arose from the decision of the lower court but that of the High Court on appeal to the lower court.
The contention of the respondent that the grounds of appeal filed were not directed at attacking the judgment of the lower court is not Correct. The grounds of appeal and their particulars are well linked with the judgment of the lower court. The issues formulated are quite appropriate and they arose from the grounds of appeal filed.
The issues raised will therefore be considered on their merit. As already stated above, although the appellant formulated four issues in the appellant’s brief, the argument proffered was in respect of two issues: whether the re-evaluation by the High Court of the evidence led before Omu-Aran Upper Area Court was proper to justify the lower court affirming the decision of the said Omu-Aran High Court; and (2) whether the criticism of the method adopted by the trial Upper Area Court in arriving at its decision by the High Court which was affirmed by the lower court should vitiate the decision.
The main grievance of the appellant all along is that Omu-Aran High Court, sitting as an appellate court, reopened the evidence led at the trial before the Upper Area Court and came to the conclusion that the decision of the Upper Area Court was erroneous and must be set aside. The law is settled that an appellate court should not ordinarily disturb or tamper with the findings of facts made by a trial court, particularly if such findings and conclusions reached are Supported by credible evidence. This principle is premised on the fact that the duty of appraising of evidence given at a trial is pre-eminently that of the trial court that saw and heard the witnesses:
see Emarieru v. Ovirie (1977) 2 SC. 31, Nor v. Tarkaa (1998) 4 NWLR (Pt. 544) 130 at 139; Ogundulu v. Phillips (1973) 1 NMLR267 at 272; Okolo v. Uzoka (1978) 4 Sc. 77 at 86; and Mogaji v. Odofin (1978) 4 Sc. 91.
But an exception to the above rule is where there is amiss direction by the trial court. A misdirection occurs when the issues of fact in the case for the parties or the law applicable to the issues raised are not fairly appraised, or considered or misconceived or the law applicable is incorrectly applied by the trial court as a result, there would be a miscarriage of justice if the decision erroneously reached is allowed to stand. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; and Nor v. Tarkaa (supra).
Appellate courts are also required not to be unduly strict or rigid with regard to matters of procedure when dealing with appeals from native courts, customary courts or area court as in the instant case. This is mainly because since pleadings are not filed in those courts and technicalities have no place with their adjudication of cases, the attitude of appellate courts to the decision from those courts therefore are (i) it is not the form of an action but the substance of the claim that is the dominant factor; (ii) the entire proceedings in such court have to be scrutinized to ascertain the subject matter of the case and the issues raised therein; and (iii) it is permissible to look at both the claim as framed, the findings of fact and even evidence given before such courts to ascertain what the real issues are: see Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 251; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802 at 822; and Oyah v. Ikalile (1995) 7 NWLR (Pt. 406) 150 at 162. The relax attitude extended to such courts extend also to procedure regarding visit to the locus in quo. Thus, it has been held that native courts (a term which encompasses customary courts and area courts regardless of whether they are presided over by lawyers) need not record in evidence the details of an inspection of a locus in quo: See Badoo v. Ampung (1949) 12 WACA 439. What matters, therefore, in proceedings in such courts, is the substance and not the form. Decisions of such courts are to be accorded respect by appellate courts, provided that nothing is done therein which is contrary either to any express requirement of the law or to the principles of natural justice: See Ikeakwu v. Nwamkpa (1967) NMLR 224; Okuma v. Isatu (1944) 10 WACA 89; Ekpa v. Utong (1991) 6 NWLR (Pt. 197) 258; Iyaji v.Eyigebe (1987) 3 NWLR (Pt. 61) 523; and Anyabine v. Okolo (1998) 13 NWLR (Pt. 582) 444.
Applying the law as declared above to the instant case, the first question to be answered is whether the Omu-Aran High Court was right to have tampered with the findings of fact made by the trial Upper Area Court which resulted in the setting aside of the judgment of that court – the decision which was affirmed by the lower court. As already declared above, the action of the High Court could be justified only if the trial Upper Area Court was found to have misdirected itself by failing to fairly appraise or consider or improperly apply the evidence led before it. The reason given by the appellate High Court for setting aside the judgment of the trial court was that the said trial court failed to properly appraise the evidence led by the parties in the case before it. The lower court agreed with that view and thereby dismissed the appellant’s appeal against the decision of the High Court.
The allegation of failure to properly appraise the evidence presented at the trial was based on the failure of the trial court to properly consider the evidence led by the defence in the case. The claim before the trial court was for declaration of title to a parcel of land. The claim was not admitted and as such each side led evidence in line with his case. The appellant, as plaintiff, based his claim to the land on settlement by his ancestor and exercise of acts of ownership by his ancestors up till date. That claim was denied by the defence who also presented similar rival claim of ownership of the same land also by settlement and various acts of ownership. Seven witnesses testified for the defendant/respondent. Among these witnesses are those who told the court that they paid annual rents/ tributes to the respondent for the portions of the land granted them by the defendant. They also denied that the appellant’s family knew anything about how they came to occupy the portions of the land they occupy for farming purposes out of the disputed land. It is the evidence of those defence witnesses that the trial court was said to have failed to properly, consider and evaluate before it arrived at its decision to enter judgment for the plaintiff/appellant. I believe that the decision of the High Court to re-evaluate the evidence led at the trial was quite justifiable and its decision to set aside the decision of the Upper Area Court is quite in order. This is because none of the plaintiff’s witnesses told the trial court that payment of rent or homage was made for any portion of the land occupied or granted to them by the plaintiff. The evidence they gave was mainly to the effect that they shared boundaries with the plaintiff.
On the other hand, three of the defence witnesses (DW2, DW3 and DW4) told the trial court that the defendant was their overlord on portions of the land on which they lived and farmed. DW2 went further to say that he was the defendant’s caretaker who used to collect rents and tributes from other tenants on behalf of the defendant and that his own father was doing the same assignment for the defendant before he took over the same assignment. DW4 gave similar evidence in respect of Oloko Nla village, which is an area of the land in dispute. All these witnesses who had their farms on portions of the land in dispute denied that they were on the land with the permission of the plaintiff. These are some of the facts on record which the trial court was said to have failed to properly consider before arriving at its decision in the case. The trial Upper Area Court rejected the evidence led by defence for no good reason. For example, one of the reasons given by the Upper Area Court for rejecting the evidence presented by the defendant was that the man did not know the name of the local government where the disputed land is situated, a matter which has nothing to do with the claim before the court.
I believe from these disclosures that the interference by the appellate courts was quite justifiable. There is therefore no merit in the appeal. I accordingly dismiss it with N10,000.00 costs in favour of the respondent.
SC.84/1999