Zacheus Faleye & Ors V. Mr. Rasheed Dada & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellants as Plaintiffs at the Customary Court, Ogun State claimed against the Respondents as Defendants the following:-

(a) Declaration of title to the piece of land situate, lying and being at Igbo Eleidi between Osuke and Ijaba Roads Ota.

(b) An order of Injunction to restrain the Defendants, their servants, agents or privies from entering, alienating or doing anything on the land in dispute, Annual rental value of the land is N100.00 (One Hundred Naira).

The case of the Plaintiffs in the Customary Court was that their family is the owner of the land in dispute and the Defendant were their customary tenants on the land in dispute. The Defendants on their part claimed that the land belonged to their ancestor from time immemorial and denied being customary tenants of the Plaintiffs.

At the end of the proceedings, the Customary Court delivered a majority judgment dismissing the Plaintiffs’ case and the Plaintiffs dissatisfied appealed to the High Court Ogun State which Court in its appellate jurisdiction set aside the judgment of the Customary Court. Dissatisfied, the Respondents appealed to the

Court of Appeal which in turn set aside the decision of the High Court restoring the majority judgment of the trial Customary Court. Aggrieved with the judgment of the Court of Appeal, Coram J.A. Fabiyi, A.A. Augie, G.I. Udom Azogu JJCA, the Plaintiffs/Appellants have approached the Supreme Court by a Notice of Appeal dated 5th October, 2012 on a four ground of appeal but Appellants later abandoned the 4th Ground of Appeal.

FACTS BRIEFLY STATED:

From the oral evidence put across by the Plaintiffs, their family is the owner of the land in dispute though Plaintiffs admitted that the Defendants (now Respondents) farmed therein as customary tenants to Plaintiffs’ family. The Defendants denied the claims of the Plaintiffs, giving evidence to show that they were possession of the land not as customary tenants but as land owners.

As the proceedings ensued at the trial Customary Court, there was a visit to the locus in quo with the parties in attendance pursuant to a request made to the Court by one of the Defendants. In the end, the Ifo/Ota Grade 1 Customary Court gave a majority judgment of 2 to 1 in favour of the Defendants’ family holding that the Plaintiffs did not

prove that the farmland in dispute belonged to their family of Eleidi Atala that rather, the land in dispute belonged to the Ijagba family of which the 1st Defendant is the Head.

On the 25th day of January, 2016 date of hearing, learned counsel for the Appellants, O. O. Ojutalayo Esq, adopted their Brief of Argument filed on 27/8/2014 and deemed filed on 27/8/2014. He raised two issues for determination which are thus:-

(i) Whether the learned Justices of the Court of Appeal were correct in holding that the Appellate High Court Judge, in reviewing and evaluating the findings of fact made by the trial Customary Court, wrongly applied the principles of law as to evaluation of evidence when the said review and evaluation of evidence were based on well established principles regulating the interference of an Appellate Court with findings of fact by a trial Court.(Grounds A and B of the Appeal).

(ii) Whether the learned Justices of the Court of Appeal were correct in failing to consider the Appellants’ response contained in their Brief of Argument to the issues argued by the Respondents in their own Brief before allowing the Respondents’ appeal which failure

constitutes a breach of the Appellants constitutional right to fair hearing (Ground C of the Appeal).

A. B. Kasunmu Esq,, learned counsel adopted the Brief of Argument of the Respondents filed on 4/3/2015 and deemed filed on 22/4/2015. He utilised the issues as couched by the Appellants. I shall make use of the issues as crafted.

ISSUE NO. 1:

Whether the learned Justices of the Court of Appeal were correct in holding that the Appellate High Court Judge, in reviewing and evaluating the findings of fact made by the trial Customary Court wrongly applied the principles of law as to evaluation of evidence when the said review and evaluation were based on well established principles regulating the interference of an Appellate Court with findings of facts by a trial Court.

Learned counsel for the Appellants submitted that the Court of Appeal or Court below erring at its conclusion failed to appreciate the reasons proffered by the Appellate High Court for intervening the findings of facts and evaluation made by the trial Customary Court. That the High Court carried out a proper review of the findings of fact by the trial Customary Court and drew the appropriate inferences

from the evidence led before coming to the conclusion. That what the Court of Appeal did was not borne out of the Record of the Court. He cited the cases of Akanbi Agbeje & Ors v. Chief Agbaakin Joshua Ajibola & Ors (2002) 1 SC 1 at 17; Okpiri v. Jonah (1961) All NLR 102 at 104; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 SC 291 at 295 295 etc.

For the Appellants were referred to the evidence of PW1, PW2 and others to show that the Appellants owned the land dispute and it was the Customary Court that drew a wrong conclusion which should not be allowed to stand. Learned counsel cited the case of Nathaniel Onwuka Ajero & Anor Bernard Ugorji & Ors (1999) 7 SC (Pt.1) 58 at 66.

That the Court below in upholding the judgment of the trial Customary Court failed to consider some material conflicts in the evidence of the Respondents relied upon by that Court of trial in giving judgment to them without proper evaluation of the totality of the evidence on the issue of picking of Orogbo (bitter Cola) on the land in dispute which the 5th defendant ascribed to himself. That that conflicting evidence not resolved would have been

rejected. He cited U.N.I.C v U.C.I. Ltd (1993) 3 NWLR (Pt.593) 7 at P.29.

Learned counsel for the Respondents reminded the Court that proceedings in the Customary Court are not amenable to Common Law and the Evidence Act and as such they should always be given greater latitude and broader interpretation. He cited Chief Karimu Ajagun & 5 Ors v Sobo Osho of Yoku Village & 13 Ors (1977) 5 SC 55.

That the position of the law is that where there are two conflicting sets of traditional history, it is not right to assess or determine first which of the two sets of traditional evidence is plausible or credible before reference is made or consideration given to facts in recent time. He relied on Popoola v Adeyemo (1987) 1 NWLR (Pt.66) 578 at 587; Kojo II v Bonsie WLR 1223; Idundun v Okumagba (1976) 9 – 10 SC 227.Mr.

MrKasunmu of counsel for the Respondents contended that not one single customary tenant gave evidence on behalf of the Eleidi Atala family and the Plaintiffs never provided the trial Customary Court with sufficient proof of Customary Tenancy and the visit to the locus in quo did not show that the 1st Plaintiff’s family had Customary Tenants on the land

in dispute. That it is trite law that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not the weakness of the case of the Defendants. He cited Bello v Eweke (1981) 1 SC 101; Kodilinye v. Odu (1953) WACA 336 at 337 .

It was stated that the Appellants were aware of the significance and importance of the evidence of their tenants yet failed to call them to give evidence, That the survey plan alluded to by 1st Plaintiff was not tendered and so no evidence of its content is admissible. The case of Emmanuel Jiaza v Hassan Bamgbose (1999) 7 NWLR (Pt. 610) 182; Section 149 (d) of the Evidence Act .

That the trial Customary Court found that the evidence of the PW4 and DW2, both brothers and descendants of late Fagbayi could not be believed after listening to them and seeing them and it was wrong for the Appellate High Court to interfere with the finding of the credibility of witnesses and substitute the trial Court’s finding with its own finding.

In brief, the standpoint of the Appellant is stated to be that the Court below was wrong in intervening the review and evaluation of evidence concluded by the appellate High Court

of the findings of the trial Customary Court which findings were largely unsupported by evidence on record which made the review exercise concluded by the High Court necessary.

That position of the appellants, the Respondents rejected contending that it is the Customary Court which finding is unassailable and supported by evidence on record.

In taking a view point on which position, whether of the appellants or the respondents should be gone along with, the first port of call in my humble opinion is the Court below where that Court per Fabiyi JCA (as he then was) anchoring the judgment of the Court held that construing the judgment of a Customary Court such as the one in this instance, the watch word for an appellate Court to which the High Court in its appellate jurisdiction would stand must be substantial justice. That is to say that if the Customary Court’s decision which native customs are within their bosom and such is alright and should not be lightly tampered with. The reason for this principle is simple and that is because ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial Court in an appellate

jurisdiction which acts on the cold facts from the record. Therefore, that appellate Court will not lightly interfere with the fact made by a Court unless there are compelling and very persuasive reasons and in this case at hand, the reasons must be weighty indeed particularly since the Court at first instance, the Customary Court made a visit to the locus in quo which advantage the High Court did not have.

The Court of Appeal at page 330 of the Record had stated as follows:-

“The trial Customary Court found that no member of the Plaintiffs’ family farmed or ever farmed on the land in dispute. The 1st Plaintiff in his evidence before the Court said, he farmed on the land. Such was shown to be false during the visit to the locus in quo.The Lower Court played down this point and talked of Plaintiffs being owners of farm land having Customary Tenants. Clearly, the 1st Plaintiff who said he farmed on the land which assertion, if correct, would have put him in possession of the land, found to be false”.

I am at one with the Court below that the appraisal of evidence based on demeanour of witnesses and their credibility is the exclusive preserve of the trial Court

which is out of range for an appellate Court and so the judgment of the Customary Court would be given greater latitude and broad interpretation and therefore, the matter of proof of evidence of a native custom is not necessary as members of that Customary Court are already familiar with the operating custom in their area of adjudication and in this case, the trial Court, Ota where the parties and the members of Court are Awori people, therefore the Customary Court members are presumed to have the Awori Custom in their bosom. See Karimu Ajagunjeun & 5 Ors v. Sobo Osho of Yoku Village & 13 Ors (1977) 5 SC 55; Nana Eyebi Abaio II v. Kweku Nsemfo of Kokooin 12 WACA 127.

The thoroughness with which the Court of Appeal handled what transpired at the trial Customary Court and the interference by the High Court in its appellate capacity is such that I would at the risk of verbosity quote the Court of Appeal copiously from pages 330 to 335 of the Record and thus:-

“With all the above state of the law in view, it is now high time to consider whether the High Court on appeal was right to have interfered with findings of fact mostly based on credibility of witnesses

coupled with visit to the locus in quo. The trial Customary Court in arriving at the decision that the plaintiffs did not prove their claim conclusively made 21 findings of fact. The trial Customary Court heard the witnesses and watched their demeanour before appraising and evaluating their evidence.

The trial Customary Court found that no member of the Plaintiffs’ family farm or ever farmed on the land in dispute. The 1st plaintiff in his evidence before the Court said he farmed on the land. Such was shown to be false during the visit to the locus in quo. The lower Court played down this point and talked of plaintiffs being owners of farm land having customary tenants. Clearly, the 1st plaintiff who said he farmed on the land; which assertion, if correct, would have put him in possession of the land, was found to be false. There was sufficient evidence upon which the trial Customary Court based its finding. It was wrong for the lower Court to have attempted to interfere with same. See Nwokoro v Nwosu (1994) 4 NWLR (Pt. 337) 172.

In its second finding of fact, the trial Customary Court found that a survey plan showing the land in dispute as part of the

plaintiff’s family land, as stated by the 1st plaintiff, was not tendered and that being a learned ex-customary Court president, the 2nd plaintiff was well aware of the importance of the survey plan. The 1st plaintiff in his evidence testified as follows at page 20, lines 19-24 of the record:

“When the case between my family and the Itele people were (sic) going on at Abeokuta High Court, my family surveyed the land and in the survey plan the land in dispute was shown there as part of my family land.”

The Lower Court interfered with the finding and maintained that non-tendering of the survey plan was not detrimental as there was no difficulty in identifying the land in dispute. It appears as if the lower Court goofed as the point made by the witness in his evidence has nothing to do with the identity of the land. He desired to show that the land in dispute was surveyed as part of a larger whole alleged as being his family land. The trial Court with common sense approach, maintained that the plaintiffs ought to have shown it to the Court. It occurs to me that the lower Court should have construed the non-tendering of the survey plan adversely against the plaintiffs

as dictated by Section 149 (d) of the Evidence Act. See In Re: Adewumi & Ors (1988) 5 NWLR (Pt.83) 483. That is not the end of the matter. The plaintiffs who relied on the alleged survey plan should tender it as extrinsic evidence of its contents is not admissible in evidence. See Emmanuel Jiaza v. Hassan Bamgbose & Anor (1999) 7 NWLR (Pt.610) 182.

In finding 3, the Customary Court found that 3rd plaintiffs’ witness bought trees from the plaintiffs and paid for the same trees to the defendants. The lower Court, an appellate Court, stated that ‘his evidence is most incredible and I reject it’. The lower Court was definitely not in a position to test the credibility of witnesses and then accept or reject such evidence. Such was undoubtedly the business of the trial Customary Court which heard evidence from witnesses and watched their demeanour. See Ebba v Ogodo (supra).

Findings 4 and 5 deal with demarcation of land. The trial Customary Court believed that it was the demarcation of the Ijagba and Isele family land that Chief Audu Makinde, 1st plaintiffs’ witness led them to do and he advised 1st and 2nd Defendants to plant cement pillars on the

demarcation line. The demarcation line which runs through plaintiffs’ 1st witness’ farm was not for the 2nd defendant’s farm only. The Lower Court felt that the demarcation was irrelevant to the case as it did not concern the plaintiffs. But the case made by the plaintiffs was that the demarcation did not involve Ijagba family; but only Isele family, The trial Court saw the demarcation line on the land in dispute during the visit to the locus in quo, One cannot surmise the rationale for the unwarranted interference with the finding of fact well made by the trial Court based on evidence on record.

In finding 6, the Customary Court found that in the land, all the farms shown to them by the plaintiffs’ 1st witness were all farms which he bought from members of the defendants’ family. The lower Court held the finding to be irrelevant because PW1 is a customary tenant to the plaintiffs’ family. I cannot follow with adequate precision the rationale of the lower Court judge.

In finding 7, the trial Customary Court said it did not believe that the farm land in dispute was ever called Igbo Eleidi Atala. The High Court erroneously attacked the belief as the writ, according

to the lower Court, described the land as Igbo Eleidi.Identity of the land has nothing to do with what the parties call it. See Assam v. Okpasin (2000) 10 NWLR (Pt.676) 659.

In finding No. 8, the Customary Court found that the 2nd defendant is a member of Ijagba family. The High Court of Appeal felt that such finding was not detrimental to the plaintiffs’ case. The 2nd defendant maintained that he was present at demarcation of the land as a member of Ijagba family.

In finding 9, the Customary Court found that plaintiffs’ 3rd witness told the Court that he bought trees from many members of the defendants’ family which the plaintiffs did not object to. The lower Court said virtually all the defendants mentioned by the witness were mentioned by the plaintiffs as their customary tenants. I agree with the senior counsel for the appellants that an allegation of customary tenancy is not synonymous with a Proof of such tenancy.

Findings 10, 15 and 17 relate to what the trial Customary Court believed or did not believe. The lower Court relied on credibility of the witnesses to come to his own conclusions. It appears to me that the learned judge of the Court below forgot

that he was not sitting as a Court of first instance. He completely took over the functions of the trial Customary Court by delving into the realm of credibility of witnesses. It goes without saying that he crossed the lane to a territory which is not his own. The findings of fact based on credibility of witnesses by the lower Court on appeal were not validly made. They should not be allowed to stand. An appellate Court generally loathes to review the testimony of witnesses based on credibility. See Elendu & Ors v Ekwoaba (1995) 3 NWLR (Pt.386) 704.

Findings Nos, 12 and 13 relate to heaps of remains of Odunaro’s house and Ogun Idol at the locus in quo. In finding No. 13, the trial Customary Court said it believed that in Awori land, albinos are buried in the bush and not in township. The learned judge of the Court below interfered with the findings despite the fact that they touch on Awori custom presumed to be in the bosom of the members of the trial Customary Court. See Nana G. Ababio II v. Kweku Nsemfo of Kokooin (supra); A.O. Odufuye v J.A. Fatoke (supra). It was clearly wrong for the Lower Court judge to have interfered with findings touching on Awori

custom. From all the above, it is clear that the Appellate High Court Judge wrongly applied principle of law as to evaluation of evidence. He had no right to apprise evidence based on credibility of witnesses which is basically the function of the trial Customary Court. As well, the Lower Court wrongly forayed into an area touching on ascertainment of Awori custom”.

From the record, it can be seen that the 1st plaintiff who had testified of farming on the land in dispute did an about face when under cross examination he admitted that nobody settled on the land in dispute before and that only the Eleidi Ojuelegba Shrine and Ogun Shrines are present on the land in dispute. Also, evidence on the record is that from the visit to the locus in quo at page 80 of the record of appeal, it is clear that 1st, 2nd and 3rd Plaintiffs did not farm on the land and none of them was able to show their farmland.

Also of note is that no Customary Tenants were called in support of the evidence of the Plaintiffs’ case and it is to be stated with emphasis that it is trite that in an action for declaration of title, the plaintiff has to succeed on the strength of his case and not on the

weakness of the case of the defence. In this, I rely on the case of Bello v. Eweke (1981) 1 SC 101; Kodiluye v. Odu (1953) WACA 336 at 337.

The Court below was of the view in its findings based on the record of what the Customary Court being that of first instance and the appellate High Court and concluded that the High Court in its appellate jurisdiction went outside its given scope. The lower Court took pains to show the reasons for its own findings and conclusion in taking the side of the Customary Court and rejecting the interference by the High Court. In the consideration before me, I am satisfied that the Court of Appeal was on course, clearly supported by the record and I am saying so for the following reasons:-

On the visit to the locus, the Customary Court as shown its inspection record found that the 1st Plaintiff did not farm on the disputed land as he claimed. As if that was not enough, 1st Plaintiff had anchored on a survey plan which he made no effort to produce thus bringing in the presumption that if the survey plan had been produced, it would have gone against the position of the 1st plaintiff as inferred under Section 149 (d) of the Evidence Act. Therefore, the interference by the Appellate

High Court could not be justified. See Nwokoro v Nwosu (1994) 4 NWLR (Pt. 337) 172; In Re: Adewumi & Ors (1988) 5 NWLR (Pt. 83) 483.

Again of note is what the Court of Appeal found as an aberration, the stance of the appellate High Court that the “evidence of a witness is most incredible and I reject it”, as out of place for an appellate Court as in doing that, it entered into the arena which was the exclusive preserve of the trial Customary Court. I rely as the Court below did to the case of Ebba v Ogodo (1984) 1 SCNLR 372; Balogun v Agboola (1964) 1 All NLR (Pt. 2) 66; Ohanaka v Achugwu (1998) 9 NWLR (Pt. 564) 37.

In respect to the findings of the trial Court with regard to the demarcation of the Ijagba and Isele family land, the trial Court had found that the demarcation line on the land in dispute during the visit to the locus quo the demarcation did not involve Ijagba family but only Isele family. The Appellate High Court in its view held that the demarcation is irrelevant to the case, a situation showing indefensible interference by an appellate Court as the finding by the trial Court was such that it could only have been done by the Court that had made a

physical visit to the scene and not by one merely perusing documents referring to such. In this regard also fell in the finding of the trial Court that all the farms as shown by the plaintiffs’ 1st witness were all farms which that witness bought from the defendants’ family.

Again, to be denigrated as out of place is the Appellate High Court attacking the belief on the name of the farmland as the writ referred to the land as Igbo Eleidi while the Customary Court did not believe the land was ever called Igbo Eleidi Ataia.This is so because it is trite that the identity of land in dispute has nothing substantial to do with what the parties called it. See Assam v. Okpasin (2000) 10 NWLR (Pt.676) 659.

The deviation from the finding made by the Customary Court on the issue that the 2nd Defendant is a member of Ijagba family which the High Court felt was unimportant because the 2nd Defendant had maintained being present when the demarcation of the land was made, he being a member of Ijagba family.

Again, the Customary Court had found that Plaintiffs’ 3rd witness told the Court that he bought trees from many members of the defendants’ family which the plaintiffs did not

object to. The stance of the High Court in this regard is that voluntarily, all the defendants mentioned by the witness were mentioned by the plaintiffs as their customary tenants and went into the credibility of witnesses in reaching his conclusion, a procedure outside the realm of an appellate Court especially where as in this case, there was no basis for the upsetting of the findings of the trial Court. Also of note is the delving into the Customs of the Awori people and countering the findings of the Customary Court which had been based on the informed knowledge of the custom well within the bosom of the Customary Court members who were in better position to know. I rely on Odufuye v. J.A. Fatoke (1977) 4 SC 11.

Just as the Court of Appeal found, there was no foundation on which the appellate High Court entered into the re-evaluation of the evidence already evaluated by the trial Customary Court and worst still ventured into the position exclusively reserved for a trial Court who had the privilege of seeing the witnesses and assessing their demeanour.

It is perhaps appropriate at this stage to remind oneself of how ownership of land is proved where title of the land is in dispute.

This is shown the case of Idundun v. Okumagba (1976) 9-10 SC 227, they are:

1. By traditional evidence;
2. By production of document of title duly authenticated and executed;
3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

It needs be said that all the five methods do not have to be present before proof of the said ownership can be said to have been established as only one of the methods above stated is sufficient and this the plaintiff must prove by cogent, satisfactory and conclusive evidence. I rely on Aikhionbare v. Omoregie (1976) 12 SC 11.

To be good enough, a plaintiff who relies on traditional evidence as in the case in hand must show the following:

1. The founder of the land;
2. The mode of founding or discovery of the land;
3. The history of the devolution of the land to the present claimants.

I place reliance on Piaro v.

Tenalo (1976) 12 SC 31; Ohiari v Akabeze (1992) 2 NWLR (Pt.221) 1; Anyanwu v Mbara (1992) 5 NWLR (Pt. 242) 386.

A follow up in this proof by traditional history is to be brought out, the fact that there are two conflicting sets of traditional history and the fact that the Court cannot assess or determine first which of the two sets of traditional evidence as between the plaintiffs on the one side and the defendants on the other, which is plausible or credible without reference being made or consideration given to the facts in recent time, a principle now popularity referred to as the principle or rule in Kojo II v Bonsie (supra) that the findings made by the Customary Court and accepted by the Court of Appeal after a thorough consideration are the guiding light unlike what the appellate High Court did stemming from its approach from wrong premises and assuming a position outside of its own territory.

My take therefore is that the Customary Court’s majority finding and conclusion aptly accepted by the Court below is the correct position of things and in answer to the question posed in Issue I, the Court of Appeal was correct in rejecting what the

Appellate High Court did. The issue is resolved against the Appellant.

ISSUE NO. 2:

Whether the learned Justices of the Court of Appeal were correct in failing to consider the Appellants’ responses contained in their brief of argument to the issues argued by the Respondents in their own brief before allowing the Respondents appeal which failure constitutes a breach of the Appellants constitutional right to fair hearing.

Mr. Ojutalayo of counsel for the Appellants submitted that the Court below was in error in allowing the appeal of the Respondents without considering the response of the Appellants to the issues canvassed by the Respondents before it, thus violating the right to fair hearing of the Appellants as guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. That the trial Customary Court failed to make proper use of the opportunity of seeing and hearing the witnesses who testified before it which made the review exercise conducted by the Appellate High Court most necessary. Also that the Court below failed to give due consideration to the argument of the Appellants in that connection and so the Appellants’ right to fair

hearing was breached and miscarriage of justice ensued. He cited Chiabee Bayol v Iorkghir Ahemba (1999) 7 SCNJ 223; Ogboru & Anor v. Uduaghan & Ors (2012) 2 – 3 SC 56; Ajuwon v Akanni (1993) 12 SCNJ 32; Amayo v Erinwingboro (2006) 5 SCNJ 1.

Learned counsel for the Respondents, Mr. Kasunmu stated that it is settled law that not every mistake or failure of a trial Court to make a finding on an issue will lead to a reversal of the decision of the Court appealed if the omission or failure will not affect the justice of the case and will not detract from the determination of the real issue before the Court. He cited Onajobi v Olanipekun (1985) 2 SC (Pt.156); Ojo v. Babalola (1994) 4 NWLR (Pt.185) 267 at 282.

That the failure of the trial Court to consider the response of the Appellants to the issues canvassed by the Respondent will not lead to a reversal of the decision of the Court appealed against unless the failure to consider the response will occasion a miscarriage of justice. He contended that from the evidence properly accepted by the Customary Court and upheld by the Court of Appeal, the Appellants’ family were never in possession of the land in

dispute and did not farm thereon contrary to the evidence of 1st Plaintiff. It was also stated that the visit to the locus in quo showed that the 1st Plaintiffs family had no farm on the land and indeed the plaintiffs are not entitled to the declaration of title they sought.

The summary of the Appellants is that the Court below was wrong in failing to consider the submissions of the Appellants (then Respondents) as contained in their Brief of Argument in response to the two issues argued by the Respondents (then Appellants) before allowing the appeal before it thereby violating the right of fair hearing of the Appellants as guaranteed by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria which failure occasioned a miscarriage of justice to the Appellants. That the Respondents at the Court below failed to disclose how the error, if any, committed by the Appellate High Court substantially affected the decision of that Court to justify same being set aside.

The Respondents’ stance on the other hand is that the failure of the Court below to consider the response of the Appellants to the issues canvassed will not lead to a reversal of the

decision of the Court for the reason that the decision of the trial Customary Court on the 1st, 2nd and 3rd findings which were upheld by the Court of Appeal. That even if the trial Court had not held that all the farms shown to them were farms the 1st Plaintiff witness bought from the Defendants family, the Customary Court would still not have been wrong in refusing the Appellants claim for declaration of title based on its finding that no member of the Plaintiffs’ family farmed on the land dispute and the none tendering of the survey plan.

For a fact is, that it is settled law that it is not every mistake or failure of a trial Court to make a finding on an issue that would lead to a reversal of the decision of the Court appealed if the omission or failure will not affect the justice of the case and will not detract from the determination of the real issue in controversy before the Court. See Onajobi v Olanipekun (1985) 2 SC page 156; Ojo v. Babalola (1994) 4 NWLR (Pt.185) 267 at 282.

The Court of Appeal had dwelt comprehensively on the review of the 21 findings of the trial Customary Court made by the Appellate High Court and thereafter supported

the findings of the trial Customary Court. In this, the Appellants are of the view that their submissions in the Court of Appeal had not been considered before the Court below allowed the appeal and so they were denied their right to fair hearing. I shall refer to Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria which is as follows:

“In the determination of his civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.

The Appellants had put across the argument that if the Court below had painstakingly considered the argument of the Appellants in response to the issues canvassed by the Respondents now appellants, the Court below would not have disturbed the re-evaluation conducted by the Appellate High Court, the reasons being thus:-

“(1) That the trial Customary Court failed to make a proper use of the opportunity of seeing and hearing the witnesses.

(2) That trial Customary Court drew wrong

conclusions from credible evidence before it.

(3) That findings of fact made by the trial Customary Court were perverse in many instances in the sense that the findings did not flow from the evidence led by the parties”.

In this Issue under consideration, it must be stated though it has become trite that it is the duty of the Appellants as Plaintiffs who, claiming a declaration of title based on traditional history to plead their root of title and establish by evidence the traditional history so pleaded stating the name and history of their ancestors, right from the original founder of the land they assert ownership through to the last person Plaintiffs inherited from. I relied on Total Nigeria Plc v. Nwako (1978) 5 SC; Elias v. Cano-Bare (1982) 5 SC 25.

In recourse to traditional history as has happened here, there is conflict between that raised by the Appellants/Plaintiffs as against that raised by the Respondents/Defendants that is while the Appellants claimed through Aina Eleidi, the Respondents anchored their claim through their ancestor Ajagba. The situation of this conflict called for a resort to the Rule in Kojo v Bonsie (supra) which in brief is to ask

what the relationship between the Claimants to recent events on the land such as possession. In this regard, the evidence accepted by the Customary trial Court is that no member of the family of the 1st Plaintiff/Appellant farmed on the land in dispute contrary to the evidence the 1st Plaintiff put forward as having farmed therein which he contradicted under cross-examination in admitting that no member of his family farmed on the land in dispute and no member of his settled on the land. The Customary Court had confirmed this on the visit to the locus in quo. That finding, the High Court did not accept which the Court of Appeal rejected on the ground that the High Court inits appellate jurisdiction interloped into the area exclusively reserved for the trial Court. Indeed, from the record, the majority finding and conclusion of the Customary Court are unassailable and so the Court of Appeal’s right in restoring it after the setting aside by the High Court.

Again to be said is that there was sufficient material before the Court of Appeal from which it reached and made its findings and conclusions and so no need to go into a copious repetitive work in pandering to

what the Appellants wanted to be sure all they submitted was attended to since there was no need for such. In doing so, the Court below met the standard reiterated by this Court in Chabee Bavol v Iorkgie Ahemba (1999) 7 SCNJ 223 in that the Judgment demonstrated in full, a dispassionate consideration of the issues and raised and canvassed before it and there was no perversity nor can it be said that there was a miscarriage of justice. There is no basis for the call for a reversal of the decision of the Court below since assuming that Court should have considered every minute submission, the decision would not have been different from what it is and there was no denial of fair hearing.

In conclusion therefore, I resolve this issue against the Appellants and the two issues effectively resolved against the Appellants. I do not hesitate in dismissing this appeal which is unmeritorious. I dismiss the appeal and affirm the judgment of the Court of Appeal which set aside the decision of the Appellate High Court andrestored the judgment of Customary Court.

I award the sum of N100,000.00 costs to the Respondents to be paid by the Appellants.

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