Karimu Olujinle V. Bello Adeagbo (1988)
LawGlobal-Hub Lead Judgment Report
This is an appeal against the decision of the Court of Appeal, Ibadan Division. In point of fact, it is an appeal against the concurrent decisions of three courts, each of which had found against the appellant.
In the Ibadan City No.2 Grade ‘A’ Customary Court, the plaintiff claimed against the defendant:
“possession of the Shop at Bere Square, Ibadan, which the defendant holds as tenant to the plaintiff after repeated demand for possession.
The plaintiff also claims #36 (thirty six pounds) being arrears of rent for 6 (six) years, from 1st October, 1966, to 30th September, 1972 at 10pence per month.”
The case came up for trial before Chief A.L. Obisesan, the Chief President of the Customary Court. At the hearing parties called their witnesses and tendered some documentary exhibits, including:
(i) Exh. A, that is a certified copy of the proceedings in suit No. CV/96/72 between the present defendant, as plaintiff, and the present plaintiff, as defendant over the land in dispute.
(ii) Exh. A1, a Plan used in Exh. A.
(iii) Exh. B, that is, a copy of the proceedings in the Native Court Lands II suit No. 61/53.
(iv) Exh. C – Document of Gift of Land by plaintiff’s father to the defendant.
(v) Exh. D -part of the proceedings including findings in suit No. 61/53.
(vi) Exh. E, “Land Agreement” dated 16th day of June, 1939, and made between the plaintiffs father and the defendant.
(vii) Exh. E1 – another “Document on Free Gift of Land” dated 26th day of March, 1953, and made between the plaintiff’s family and the defendant.
(viii) Exh. F – copy of proceedings in the Native Court of Appeal in Appeal No. 236/54 of the 14th of May, 1954.
After considering all the oral and documentary evidence before him as well as the addresses of counsel on both sides, the learned Chief President found for the defendant and dismissed the plaintiff’s case. On the documentary evidence before the court, he held:
(a) that Exhs A, A1, B, and D do not throw any light on this case and do not help the plaintiff since they are evidence in other cases not related to the present case; so they have no evidential value in the case in hand;
(b) that exhibits A, A1, B, and F were merely used to test the veracity of witnesses and so do not become evidence in this case and cannot be used in writing the judgment;
(c) that exhibits C, E, and E1 do not relate to the same parcel of land; but that each relates to one of the three parcels of land owned and possessed by the defendant.
The plaintiff appealed to the High Court. Fakayode, C. J., dismissed the appeal. His further appeal to the Court of Appeal, Ibadan Division, was dismissed by Sulu-Gambari J.C.A., Omo and Onu JJ.C.A. concurring. The plaintiff had leave of the Court of Appeal to appeal to this Court. It ought to be mentioned that the Court of Appeal virtually rested the appeal on that well-known principle of great antiquity and veneration that an appellate court ought not to interfere with concurrent findings of facts and judgments by two lower courts, unless special circumstances are shown to establish that it is in the interest of justice to do so. As it was not persuaded that there were any such special circumstances, it dismissed the appeal.
Having, however, been granted leave by the Court of Appeal, the plaintiff (hereinafter called the appellant) has appealed further to this Court.
I must pause here to observe that as there were before the Court of Appeal two concurrent judgments before the Court, namely those of the Customary Court Grade A and the High Court, the Court of Appeal was not obliged to grant leave for further appeal to the Supreme Court. If it then refused leave it would have been acting within the spirit of Order 2 rule 32 of the Supreme Court Rules, 1985, which provides:
“Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance; any application to the Court in pursuance of its jurisdiction under section 213 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.”
When, therefore, the learned Justices of the Court of Appeal went ahead and granted leave for further appeal to this Court, I should take it to imply that they were in doubt as to whether in fact there were no special circumstances in the case which could warrant this Court’s interference with the concurrent findings of facts and judgments of three lower courts. I must emphasize once again that the grant of such leave by the Court of Appeal ought not to be automatic. It should grant leave to appeal only when it is of the view that there is a probability that a substantial mistake of law or of fact has been made: see Ojora v. Odunsi (1964) 1 All N.L.R. 55, at p.62. Therefore having granted leave to appeal in this case and the appellant has appealed, this Court ought to go into the inquiry as to whether, in fact, there are any special circumstances for which it must interfere.
The appellant’s grounds of appeal before this Court are, without the particulars, as follows:
GROUNDS OF APPEAL
“1. The learned Justices of the Court of Appeal erred in law in their application of the rule of concurrent findings of fact to this case by refusing to review the findings of fact merely because they were concurrent without considering whether or not.
(a) There is sufficient evidence to support the findings.
(b) Wrong conclusions have been reached from proved facts. and thereby occasioned a miscarriage of justice.
X X X
- The learned Justices of the Court of Appeal erred in law when they held
“He failed to prove that the respondent was ever a tenant of his father and be was unable to establish any semblance of the relationship of landlord and tenant between himself and the respondent………………….and in my view, the decision dismissing his claim cannot be faulted.
X X X X X X X
- The learned Justices of the Court of Appeal erred in law in failing to consider evidence on which the court could have found that the rule of concurrent finding is inapplicable to this case.
X X X X X X X
The learned Justices of the Court of Appeal erred in failing to review the findings of fact on the ground that it was concurrent findings of fact when a departure from the general practice was justified by proof.
(a) Of the failure on the part of the learned Trial President as well as the learned Chief Judge to consider the admission of the respondent in Exhibit ‘B’.
(b) Failure of the Learned Trial President as well as the learned Chief Judge to consider the finding in Exhibit ‘A’ to the effect that Exhibit ‘C’ relates to the petrol land in dispute in 1953 which precludes the respondent from relying on Exhibit ‘C’ as root of his title to the land in dispute, which omissions occasioned a miscarriage of justice and thereby make the general rule inapplicable.”
The learned counsel for the appellant filed his brief and reply brief. The learned counsel for the defendant (hereinafter called the respondent) also filed his client’s respondent’s brief. Counsel adopted their briefs of argument and addressed us orally. Although the issues for determination asset out in the two sets of briefs are substantially the same, I prefer their wording in the respondent’s brief, thus:
“1. Whether the Plaintiff! Appellant has proved his case and was entitled to judgment.
- Whether there was relationship of Landlord and Tenant between the Appellant and the Respondent which could give rise to cause of action for possession and claim of arrears of rent or for declaration of title.
- Whether the Customary Court, the High Court or the Court of Appeal have correctly and sufficiently examined the Exhibits and sufficiently scrutinised the evidence before them before they came to concurrent judgments.
- Whether the Learned Judge and the Lord Justices of Court of Appeal made a correct approach to evidence tendered by both sides to the case.”
In his submission the learned counsel for the appellant launched a very serious attack on the refusal of the learned Chief President of the Customary Court to consider the documentary exhibits tendered and admitted in evidence. He submitted that the approach of the lower courts to the exhibits was wrong; and that if they had sufficiently and correctly scrutinized the exhibit before the courts, they would have found that Exh. C did not relate to the land in dispute, and, so, found the relationship of landlord and tenant proved, and entered judgment for the appellant. He cited in support the case of Nader v. Board of Customs & Excise (1965) N.M.L.R. 99, at p.101. He submitted that the courts failed to consider correctly the whole evidence, and this led to a miscarriage of justice: Gbadamosi v. Aderogba Ajao S.C 462/1966 of the 24th of June, 1960 (sic). He conceded it that in a case like this the onus was on the appellant to displace the presumption that the conclusions of the courts below on the facts were right; but, he contended, that onus has been discharged: Melifonwu v. Egbuji (1982) 9 S.C. 145, at p.165.
In his own brief and argument, the learned counsel for the respondent submitted that as the learned Chief President of the Customary Court gave judgment on the evidence before him, and this has been confirmed by two other courts on appeal, this Court should not interfere: Serbeh v. Karikari (1938) 5 W.A.C.A. 34. He submitted also that as the respondent produced all the above documentary exhibits, these must exclude oral testimony, subject to the proviso in section 131 of the Evidence Act. This rule, he submitted, also applies to Customary and Area Courts: Halilu Mohammadu v. Local Government Police (1970) N.N.L.R. 98; Mohammadu Galadima v. Abdul Tonga (1971) N.N.L.R. 84. This Court ought not disturb concurrent findings of facts and judgments of the three lower courts:
Kofi v. Kofi W.A.C.A. 284; Kodilinye v Odu (1935) 2 W.A.C.A. 336.
He submitted further that there is a presumption of correctness in favour of such judgments:
Dadzie v. Kojo (1940) 6 W.A.C.A. 139.
There is no evidence on record to support any inference of relationship of landlord and tenant, he submitted. He pointed out also that the appellant failed to file a plan of the land in dispute. Finally, he submitted that the cases cited by counsel for the appellant have no relevance to the real issues in the case; and urged us to dismiss the appeal.
I should dismiss the question of a plan raised by the respondent in his brief rather briefly. It is now perfectly settled that a plan is not a sine qua non in every land case. Where, in a case like this both parties know the quantity and quality of the land in dispute between them, a plan ceases to be an absolute necessity: see Chief Daniel Allison Ibuluya & Ors. v. Tom Benebo Dikibo & Ors. (1976) 6 S.C. 97, at p. 107; Chief Sopui v. Chief Agbozo (1951) 13 W.A.C.A. 241; Atolagbe v. Shorun (1985) 1 N.W.L.R. (Part 2) 360. In the instant case, it is clear that both sides were not in any doubt as to the identity of the land in dispute. The identity of the land was also not in issue. In my view, a plan was not a necessity. The problem that has arisen in this case is not as a result of either party being in doubt about the identity of the land in dispute. It was rather that the respondent who holds other lands from the appellant and his people bundled in other documents which have no relevance with the land in dispute. Before I go further to consider the main complaint of the appellant in this case, to wit whether or not Exh. C is the root of title of the respondent with respect to the land in dispute or whether it relates to another piece of land which the respondent holds of the appellant and his people as a grantee or purchaser thereof, I wish to deal with one point which is so crucial to the approach which the court of trial made to the assessment of the evidence before it particularly documentary evidence.
Now in a part of his judgment, he said:
“As regards Exhibits A & A1 and B & F although Mr. Agbaje has addressed me on them but this Court cannot consider such Exhibits A & B when writing my judgment. The Exhibits A, B & D were used to test his veracity or impeach his credit but does not become evidence in the later case (present case). My view derives support from Owonyin v. Omotosho (1962) W.N.L.R. 2 & 4. Yesufu Bale Ajewogbo v. Sabitu Ariku & Anor. (1962) W.N.L.R. 324 and Morgan vs Michol (154) WR. 110.”
“And although the above Exhibits A, A1 & B, D were tendered by consent but in view of what I have expressed above that they cannot be used as exhibit in this case and I can decide the case legal evidence before me and to discountenance them. See Ajayi v. Olu Fisher (1966) 1 F.S.C. 90”
Thus he refused to consider those exhibits in the case for reasons given by him above. The first point to be decided in this appeal is whether or not he was right to have taken that stance.
I must pause here to observe that the learned Chief President was in error when he held that these exhibits were tendered to:
“test his (meaning respondent’s) veracity or impeach his (meaning respondent’s) credit but does not become evidence in the later case (present case). My view derives support from Omonyin v. Omotosho (1962) W.N.L.R. 2 & 4; Yesufu Bale Ajewogbo v. Sabitu Ariku & Anor. (1962) W.R.N.L.R. 324 and Morgan v. Michol 154 WR. 110.
(Parenthesis and italics mine)
It is true that Exh. A proceedings in suit No. CV/96/72 was tendered by the appellant himself in his evidence-in-chief as part of his own case. It was tendered as a copy of a previous case he had had with the respondent in another land case. The plan used in that same case was tendered as Exh. A1. Exh.B was similarly tendered by the appellant as a copy of proceedings in relation to “another plot quite distinct from the shop land in dispute.” It is a copy of the proceedings in Native Land Court Suit No. 61/53, of which Exh. D was a part of the proceedings and Exh. F. (appeal No. 236154) was appeal proceedings thereon. The appellant tendered them to show that Exh. C which was tendered in Exh. B could not have any relevance to the land in dispute in the present suit and therefore could not rightly constitute the respondent’s root of title.
Now a party may in our law tender a certified true copy of previous proceedings as part of his own case in a case between him and his adversary for two purposes. He may tender it to support a plea of estoppel per rem judicatam. Or he may tender it as a relevant fact under S.34 of the Evidence Act. See on these Mogo Chikwandu v. Nwanegbo Mbamali (1980) 3-4 S.C. 31. But apart from these, evidence given in previous proceedings by a witness who is called in the present case can be used to impeach his credit under sections 207 and 209 of the Evidence Act. In the last case, evidence in the previous proceedings does not become evidence in the present case if the two testimonies are inconsistent it shows that the witness is not credible: See Babatunde Jemi Alade v. Lawani Aborishade (1960) 5 F.S.C. 167, at pp.171-173.
It was therefore a grave misdirection when the learned Chief President held that previous proceedings which the appellant tendered as part of his own case were tendered to impeach the credit of the respondent.
When the learned President stated that the evidence in Exbs. A, A1, B, and F were no legal evidence in this case, he obviously had his eye on the principle of law stated in Alade v. Aborishade (supra) at p. 173 where the Federal Supreme Court, per Abbott, F.J., stated:
“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.”
This, as far as it goes, is a principle of law of great antiquity and veneration. But the learned Chief President appears to have forgotten that he was presiding over a native tribunal; and that another principle of, perhaps, greater antiquity and veneration is that native tribunals are courts of substantial justice and that as a corollary to the fact that there are no pleadings and other technical rules of procedure in such courts is the fact that it is permissible to look at the claim, findings and even evidence given in such courts to find out what the real issues were. A native tribunal does not cease to be one because it is presided over by a legally qualified person. As long ago as 1942, Francis, J.,in the case of Ajayi v. Aina (1944) 16 N.L.R. 67 put the principle, in my view, correctly when he said at p. 67:
“….in the case of proceedings in a Native Court in which members of the legal profession as such have no audience great latitude must be given and a broad interpretation placed on the proceedings and judgment so that in a case of this kind it is necessary in my view, to look at the whole of the proceedings, i.e. the evidence of the parties and the judgment, in order to arrive at a correct conclusion as to what the case was about.”
The same principle was re-affirmed by the Federal Supreme Court in The Queen v. The Lieutenant Governor, Eastern Region, Ex Parte Okafor Chingbana For the people of Arrumuke (1957) 2 F.S.C. 48. In the case before the Chief President of the Customary Court, it can not be doubted that copies of proceedings Exhs. B, D, and F were such proceedings as the law has in mind nor that Exhs. A and A1 were exhibits therein.
Indeed it appears to me that the pith and marrow of the principle is that as in such proceedings there are no pleadings, it would have been otherwise difficult to ascertain what the issues in controversy in such a case were. That there rule derives from the absence of pleadings in such courts and is an exception to the general rule which the Chief President relied upon is borne out by a continuation of the above dicta in Alade v. Aborishade (supra) where his Lordship said:
“The pleading in an earlier case may, however, be referred to, to show what was, in the 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.”
So the rule which the Chief President purported to apply admits of two exceptions even in cases where pleadings have been filed. The court may look at the pleadings to find out what issues were in litigation in the previous suit. The pleadings may also be looked at for purposes of ascertaining whether the party, in the present case, is putting up a case inconsistent with his case in the previous suit. In a case like this in which written pleadings were not filed, the court can look at the evidence given in the previous suit both for the purpose of finding out the issues litigated upon in the previous suit and to ascertain whether the party in question is, in the present suit, putting up a case inconsistent with his case in the previous suit. So the Chief President should have examined Exhs. A, A1, B and C to find whether Exh. C has any connection with the land in dispute.
In the instant case, it appears to me, therefore-, that the learned President was in grave error to have held that copies of proceedings which the appellant tendered as part of his own case were tendered merely to impeach the credit of the respondent, and in great error to have refused to look at them for purposes of finding out what the issues in the previous cases were and whether the respondent, as the appellant contends, has put up in this case, a case inconsistent with those previous proceedings.
I shall now proceed to consider those relevant exhibits from the above two points of view. Before I do so, it is pertinent and useful to observe that certain material and relevant facts are not in dispute in this appeal, namely:
(i) That the original title to the land in dispute resided in the appellant’s predecessors-in-title;
(ii) That the appellant’s predecessors-in-title gave or granted or leased several portions of land in the area to diverse persons;
(iii) That the respondent is one of those persons and in point of fact holds three such plots which he acquired at different times and in different ways from the appellant’s predecessors-in-title;
(iv) That the finding of the learned Chief President that Exhs. E and E1 relate to the lands and have no connection with the land in dispute has not been disputed by either party herein;
(v) That the respondent’s entitlement to the land in dispute rest squarely on Exh. C.
In the final analysis the case revolves on the question whether Exh. C. relates to the land in dispute. The Chief President himself held:
“I do not think Exhibits C, E & E1 relate to the same parcel of land. The defendant has got three pieces of land as exhibited in Exhibit ‘A1’ and the same defendant has produced three documents relating to each of the three parcels of land then a fortiori the defendant has established his claim to the land as having the three pieces of land and I so hold that the defendant is not tenant and the relationship of landlord and tenant cannot arise.”
Having held, and it is not disputed, that Exhs. E and E1 have no connection with the land in dispute, the issue, as I have stated, is narrowed to whether Exh. C relates to the land in dispute. It is also true that Exh. D, that is Suit No. 61/53 and Exh.F. which is the appellate proceeding in Exh. D relate to another land where the respondent erected another shop and Exhs. E and E1 relate to the land where he erected a petrol pump (see the court’s findings in Exh. D, particularly at p.52 of the record).
On the crucial question whether Exh. C. has any connection with the land in dispute, it appears to me that the learned counsel for the appellant is correct in his contention that it has no connection with the land in dispute. In Exh. A, that is suit No. CV/96/72, the plaintiff (i.e. present respondent) sued unsuccessfully for damages for trespass and injunction over one of the pieces of land granted to him by the appellant’s family. Summarizing the respondent’s case the Chief Customary Court President said at p. 30 of the record said:
“The case of the plaintiff is that he bought the land in dispute from Raji Olujinle for the sum of Twenty Naira. At the time the land was sold, the defendant was in the same compound. Document of sale of the land was tendered and marked exhibit ‘A’. After the sale, plaintiff erected a shop on it, leaving a portion of land, about 5 1/2ft x 5 ft, on either side of the land. Since being on this land for over twenty years, nobody has disturbed him.”
At p. 37, the court found as follows:
“In my view, the plaintiff in this case has failed to prove title to the area edged red on plan No.BK 10328. Exhibit ‘A’ tendered by the plaintiff does not show the extent, measurements and the exact location of the land sold to him. At page 3 of Exhibit F, reference was made to an agreement dated 5/4/52. Exhibit ‘A’ was dated 5/4/52. It would appear that Exhibit’ A’ had to do with the erection of a petrol tank as shown at page 3 of Exhibit ‘F’.”
Exh.A referred to in the above passage in Exh. C in this case that is an agreement dated 5/4/52. Exh. F in that case is Exh. B in this case. The court clearly found that Exh. A in that case, that is Exh. C in issue in this case, relates to land for erection of a petrol filling station. The land in dispute in this case is land on which a shop has been erected, and not one on which a petrol filling station has been erected. There are other good reasons why Exh C cannot relate to the land in dispute. Respondent himself testified that he had been in possession of the land in dispute since 1949 and that he paid N40.00 for it. Exh. C, on the other hand is dated 5/4/52 i.e. three years after the respondent alleged he went into possession of the land. Worse, Exh. C. evidence, as it says, a “Document of Gift of Land” and shows no consideration whatsoever. It cannot therefore be the land which the respondent stated he bought for #20.00.
It appears to me from what I have just been saying that Exh. C relates to another piece or parcel of land other than the land in dispute. The complaint of the appellant that the Chief President wrongly refused to advert to relevant exhibits tendered by the appellant in the case appears to be well founded. In this respect, I can do no better than refer to the dicta of Coker, J.S.C. in S.B. Fashanu v. M.A. Adekoya (1974) 1 All N.L.R. (Part 1) 35, at p.41 – 42:
“Undoubtedly, the duty of the court in ascertaining the truth in those circumstances is all but easy and the test of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned counsel for plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.”
See also Chief Frank Egba v. Chief Warri Ogodo (1984) 4 S.C. 84 also Lion Buildings Ltd. v. Shadipe (1976) 12 S.C. 135, p.153. In my judgment, his refusal to consider those exhibits in his judgment led to a failure of justice.
I appreciate the fact that findings of fact by a court of trial are a matter ordinarily within the province of such a court. When such findings culminate inconcurrent findings by two or more courts, an appellate court should be wary to intervene. Kofi v. Kofi (1935) 2 W.A.C.A. 284, Kodilinye v. Odu (1935) 2 W.A.C.A. 336.
Indeed the learned counsel for the respondent was right when he submitted that there is a presumption of correctness in favour of such judgments; but from what I have said about the Chief President’s handling of Exh. C, that presumption has been displaced See: Anieka Melifonwu & Ors. v. Charles Egbuji & Ors. (1982) 9 S.C. 145. I am satisfied that if the High Court and the Court of Appeal had taken a correct view of the matter and considered the true effect of the exhibits before the court of trial, especially Exhs. A, B & C, they also would have allowed the appeal. It was not enough that the Chief President took umbrage under hackneyed subterfuge of demeanour of the witnesses. But in a case like this in which documentary exhibits have been admitted in evidence, demeanour plays an insignificant, if any, role. The documents tendered in this case should have been used as a hanger with which to assess oral testimony: Onassis & Anor. v. Vergottis T.L.R. of January, 23, 1968. I should now consider whether the appellant, as plaintiff, proved his case and was entitled to judgment. In my view the initial burden on the appellant was to prove that the land in dispute was part of his family land. As that fact was admitted, the burden was on the respondent to prove a grant which he relied upon. Because of what I have said about the irrelevance of Exh. C. which he relies upon to the land in dispute, the trial Court or the other courts below should have found the relationship of landlord and tenant proved, on the evidence before the court.
Similarly, if the Chief President had approached the issue correctly, he would also haye found the arrears of rent claimed proved, after finding the relationship of landlord and tenant. For having found that the respondent was a tenant, the outstanding issue would be the conditions of the tenancy. The appellant and his witness, Alhaji Mogaji Yesufu, gave evidence that the land was let at a rent of N1.00per month.
There is nothing from the respondent and his witnesses about the condition of the grant, as the respondent’s case was that the land was given to him as a gift or granted to him. Civil cases and issues arising therein are decided on a balance of probabilities by putting the evidence given by either side on an issue on either side of an imaginary balance: See A.R. Mogaji & Ors. v. Rabiatu Odofin (1978) 1 L.KN. 212, where Fatayi Williams, J.S.C., as he then was said at p.213:
“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……………”
This principle which applies to consideration of the totality of the evidence adduced in the whole case also applies to assessment of evidence called by either side on any important issue of fact. In the instant case in which there is no evidence on the issue from the respondent’s side the trial court should have had no alternative but to accept the evidence given by the appellant and his witness, unless it was of such a quality that it was not worthy of belief. Reading the evidence of the appellant and his witness carefully, one cannot say that the evidence does not induce belief, particularly considering the fact that evidence which goes one way, like an uncontested case, requires a minimum proof: see Nwabuoku v. Otti (1961) 1 All N.L.R. 487; Faseun v. Pharco (Nig.) Ltd. (1965) 2 All N.L.R. 216. See also Vol.15 Hals. Laws of Eng. (3rd Ed.) p.272, at para. 496. Therefore putting the evidence on the balance and considering the fact that there .s nothing on the balance in favour of the respondent on the issue of arrears of rent, the Chief President or any of the other courts below should have accepted it as duly proved. The appellant is entitled to judgment.
For the avoidance of doubt, I should make it clear that this Court does not make it a habit to upset concurrent findings of fact and concurrent judgment by two or three lower courts. But once the complaint is that the approach made by the trial court and confirmed by the intermediate courts of appeal to the evidence called at the trial is erroneous or some other special circumstances are said to exist, and, after due leave, this Court goes into the matter and finds the point well-taken, it will not hesitate to interfere in the interest of justice. This is the result of the leading cases on the point, including:-
Mogo Chikwendu & Ors. v. Nwanegbo Mbamalu & Anor. (1980) 3 – 4 S.C. 31.
George Onobruchere & Anor. v. Ivwromoebo Esegine & Anor (1986) 1 N.W.L.R. (Part 19) 799.
Mohammed Ojomu v. Salawu Ajao (1983) 9 S.C. 22, at p.53.
Also this Court is entitled, in fact duty bound, to draw proper inferences from facts in evidence where it is satisfied that the lower court or courts have not done so: See Akpapuna v. Nzeka (1983) 2 S.C. N.L.R. 1.
Applying the above principles to the instant case, and for all I have said above, this appeal succeeds and is allowed. I set aside the judgment of the courts below in favour of the defendant and enter judgment for the plaintiff. I grant to the plaintiff possession of the shop at Bere Square, Ibadan, in dispute in this case, which the defendant holds of the plaintiff. The plaintiff is entitled as against the defendant to the sum of N72.00 being arrears of rent from 1st October, 1966, to 30th September, 1972, at N1.00 per month.
The plaintiff/appellant is entitled to the costs of these proceedings which I assess as follows:-
(i) N500.00 as costs in this Court;
(ii) N200.00 as costs in the Court of Appeal;
(iii) N90.00 as costs in the High Court; and
(iv) N75.00 as costs in the Customary Court.
This shall be the judgment of the Court.A. NNAMANI, J.S.C.: I had a preview of the judgment delivered by my learned brother, Nnaemeka-Agu, J.S.C. and I agree with his reasoning and conclusions.
From the history of this Suit, the appeal had seemed doomed to failure. The appellant had lost in the Grade ‘A’ Customary Court Ibadan, the High Court Ibadan, and the Court of Appeal, Ibadan. By several authorities of this Court, it has been settled that there would be no interference with concurrent findings of two lower courts unless there were exceptional circumstances to justify such interference. Nor would this Court interfere with concurrent judgment of two Courts unless there are substantial errors in law or procedure leading to a miscarriage of justice. See Enang and Ors v. Adu (1981) 11-12 S.C. 25; A.M. Akinloye v Bello Eyiyola & Ors (1968) N.M.L.R. 92 at 95; Woluchem & Ors v Gudi & Ors 295, 326; Mogaji v Cadbury Nig. Ltd. (1985) 2 N.M.L.R. (pt. 7) 392; Okonkwo v. Adigwu (1985) 1 N.W.L.R. Pt.4 694; Abinobia v Enyimadu (1953) 12 W.A.C.A. 171, 173. See also Order 2 Rule 32 of the Supreme Court Rules 1985.
As earlier mentioned, this was not just concurrent judgments of two courts but of three Courts. Mr. Agbaje, learned counsel to the appellant, in a skillfully argued appeal was able to show that the two lower Courts had erred in the evaluation of the evidence preferred in this case. In his brief of argument, he set out the issues for determination as follows-
(a) whether, whenever issue of concurrent findings of fact is raised, the Court of Appeal should not go sufficiently or at all into the grounds of attack but merely rubber-stamp the findings.
(b) whether the Court of Appeal had sufficiently, directly or at all directed its mind to the grounds for the attack and that if the grounds had been properly examined, a miscarriage of justice had not been established to exclude the application of the rule of concurrent findings.
(c) whether, if Exhibits A and B had not been discountenanced by the learned Trial President but were properly construed, due weight given and proper law applied, the findings could still stand”
Appellant’s counsel argued all his grounds of appeal together. He usefully concentrated on issue (c) above, closely examining Exhibits A and B in the case.
The complaint against the judgment of the learned trial Chief President was that he disregarded Exhibits A and B, holding that they were not legal evidence, an error which my learned brother has so ably dealt with in the lead judgment. At page 27 of the record the learned Chief President said of those exhibits,
“And although the above exhibits A, A1, B and D were tendered by consent but in view of what I have expressed above that they cannot be used as exhibit in this case and (sic) can decide the case on legal evidence before me and to discountenance them”
The learned President also held that the respondent had his root of title in Exhibit C and so there was no landlord/tenant relationship between the parties.
For his part, the learned trial Chief Judge upheld the findings of the trial President. He also relied on Exhibit C. In his judgment at page 77 of the record, he stated -“I quite agree with the proposition but I am quite satisfied from the whole of the evidence, the documents tendered and the judgment of the lower court that the defendant/appellant had discharged the onus placed upon him about proving his title to the land in dispute”
He also stated later in the same judgment -“I am perfectly satisfied also from all the documents tendered by the defendant/respondent that he bought the land in dispute and some other remaining land from the plaintiff/appellant family. Exhibit F and Exhibit C are very material for the purpose of this action”
Although the appellant complained in the Court of Appeal about the evaluation of evidence by the two lower courts, the Court of Appeal seemed to have decided the issue on the principle of non interference with concurrent findings of fact. It is pertinent at this stage to look at the documentary evidence in this case. About 8 documents were tendered, but I think that Exhibits A, B and C are the most relevant for the determination of the issues here. Exhibit A is a certified copy of the Customary Court proceedings No.CV/96/72 in which the parties were Bello Adeagbo Akinpelu (respondent herein) as plaintiff and Karimu Olujinle (appellant herein) as defendant. Exhibit B is customary court proceedings in Suit No. 61/53 in which E.A. Akinpelu was plaintiff and Karimu Olusokan Olnjinle (appellant herein) and 3 Ors were defendants. Exhibit C is a document dated 5/4/52 made between Olubode Olujinle of Olujinle compound and Bello Adeagbo Akinpelu of Kushola compound both of Ibadan. It recited that Olubode Olujinle made a free gift of his land at Bere Square. More significantly it stated –
“all the same was the case of the land on which he built his shop opposite the land to the edge of the main road”
Exhibit C was tendered as Exhibit A in Suit No. CV/96/72. Exhibit B – Suit No. 61/53 – was tendered in the Suit A2/CV/45/72. It seems that in CV/96/72, the respondent herein had stated that after purchasing land at N20 from Raji Olujunle he erected a shop on it. But in Exhibit B, the Plaintiff, B.A. Akinpelu, respondent herein, giving evidence said as follows:-
“I then called upon Raji Olubode to give a documentary evidence to show the European that indisputably the land belonged to me and he demanded money which I gave him, the amount given was ‘a35 and he prepared an agreement dated 5/6/52 sic (5/4/52) and a copy of the agreement was forwarded to the Firms who wanted to erect the Tank and the paper was consequently referred to the District Officer”.
It is clear from all this that the document being referred to was Exhibit which was headed “Document of Gift of Land” and was dated 5/4/52. That land in respect of which no payment was made was for a Petrol Tank and not for shop. It was different from the one in respect of which the Respondent claimed he paid N20 and which he used for a shop. It seems to me too that since it was agreed that the land in dispute is the one recorded in Exhibit C that land was for a petrol Tank and not for a shop. The two Courts ought therefore to have considered the landlord/tenant relationship which exists between the respondent and the appellant’s father in respect of the land on which the shop was erected.
For these reasons, and the more detailed reasons in the lead judgment, I too allow the appeal and set aside the judgments of the Customary Court Grade ‘A’ Ibadan, the High Court Ibadan, and the Court of Appeal, Ibadan Judicial Division. I enter judgment as per the terms set down by my learned brother, Nnaemeka-Agu, J.S.C. I also abide by his order for costs.