SAMSON AWOYALE v JOSHUA O. OGUNBIYI (SC 123/1983) [1986] NGSC 21 (18 April 1986)

SAMSON AWOYALE (APPELLANT)

v.

JOSHUA O. OGUNBIYI (RESPONDENT)

(1986) All N.L.R. 442

Division: Supreme Court of Nigeria

Date of Judgment: 18th April, 1986

Case Number: (SC 123/1983)

Before: Eso, Uwais, Kazeem, Kawu, Oputa; JJ.S.C

The respondent in this appeal was the plaintiff in an action which he instituted on behalf of the Ba'a family in the Igbomina South Central Area Court, Oro, Kwara State. The defendant in that case was David Adewoye who later died but was substituted by Samsom Awoyale, who is the appellant in this appeal and who represents Efundare family. Both parties are from Ijomu-Oro in Oro District of Kwara State. The plaintiff's claim was for a declaration of title to the Ijomu Oro township Land and its adjoining forest. Both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the hearing, the trial court dismissed the plaintiff's claim.

On appeal to the Upper Area Court, that court allowed the appeal and awarded the Land to Ba'a family. On further appeal to the High Court by the Efundare family, the High Court allowed the appeal, reversed the decision of the upper Area Court and restored the decision of the trial Area Court. On appeal to the court of Appeal from the judgment of the High Court that court in a well considered judgment, allowed the appeal and restored the judgement of the Upper Area Court. The appellant aggrieved by the decision of the Court of Appeal has further appealed to the Supreme Court and the issue for determination by the Supreme Court was whether the Upper Area Court, being an appellate Court was justified in reversing a finding of fact by the court of trial.

HELD:

(1)     It is my view that the Upper Area Court was in the circumstances of this case, justified in re-evaluating the evidence adduced before the Area Court and especially as there is nothing on the record to show that the Upper Area Court accepted the testimony of any witness whose credibility was doubted or questioned by the Area Court. The review of the evidence by the Upper Area Court was based entirely on inferences which were drawn from the evidence before the Area Court.

(2)     The High Court as a court of second appeal was in error to have substituted its view on the printed evidence for those of the Area Court and to have thereby come to a decision different from that of the Upper Area Court. In addition, on the preponderance of evidence adduced the Plaintiff is entitled to the judgement of the Court.

Appeal dismissed.

Chief F.R.A. Williams, SAN, (with him Mrs A. Williams) for the appellant.

K. Sofola, SAN, (with him Kayode Sofola) for the respondent.

Kawu, J.S.C.:-The respondent in this appeal was the plaintiff in an action which he instituted on behalf of the Ba'a family in the Igbomina South Central Area Court, Oro, Kwara State. The defendant in that case was David Adewoye who later died but was substituted by Samson Awoyale, who is the appellant in this appeal and who represents the Efundere family. Both parties are from Ijomu-Oro in Oro District of Kwara State. The plaintiff's claim was for a declaration of title to the Ijomu-Oro township land and its adjoining forest. Both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the hearing, the trial Area Court dismissed the plaintiff's claim. On appeal to the Upper Area Court, that court allowed the appeal and awarded the land to the Ba'a family. On further appeal to the High Court by the Efundere family, the High Court allowed the appeal, reversed the decision of the Upper Area Court and restored the decision of the trial Area Court which awarded the land to the Efundere family. On appeal to the Court of Appeal from the judgment of the High Court, that Court, in a well considered allowed the appeal of the Ba'a family and restored the judgment of the Upper Area Court in favour of that family. The lead judgment of the Court of Appeal (concurred in by Wali, J.C.A. and Karibi-Whyte, J.C.A. (as he then was)), which was delivered by Coker, J.C.A. (as he then was), after highlighting some misdirections in the judgment of the High Court, concluded as follows:-

"The plaintiff, in my opinion is entitled to succeed on the preponderance of evidence on both traditional evidence and clear cogent acts of possession and ownership. Further, it is my view that the judges of the High Court proceeded on wrong principle of law as regards burden of proof and on its evaluation of the primary facts and finally came to a wrong decision. The traditional evidence adduced by the plaintiff was sufficient, apart from the cogent evidence of acts of ownership, to prove its title. See Stool of Abinabina etc. v. Eyinamadu 12 W.A.C.A. 17, p.174; Olujebu of Ijebu & Ors. etc. (1972) 5 SC. 145 p. 151. See also Kojo II v. Bonsie & Ano. (1957) 1 W.L.R. 1223 p. 1226, 14 W.A.C.A. 242. Still further, the High Court was in error to set aside the judgment of the Upper Area Court which was reasonable and amply supported by evidence. See Ogbero Egri v. Ededho Uperi (1973) 11 SC. 299 p. 309-310; A.M. Akinloye v. Bello Eyiola (1968) N.M.L.R. 92, p.93."

The defendant/appellant aggrieved by the decision of the Court of Appeal has further appealed to this Court on the following four grounds:-

"(1)    The trial before the Igbomina South Central Area Court was irregular and void because the trial Court took upon itself to summon to (sic) witnesses without the consent of the parties.

(2)     Further and in the alternative the Federal Court of Appeal erred in law and on the facts in allowing the appeal and (without directing a retrial) entering judgment in favour of the Ba'a Family.

PARTICULARS OF ERROR

The nature and character of the evidence before the Area Court at Oro was such that it was not possible for the Upper Area Court or for the Federal Court of Appeal to assess the Credibility of the witnesses and adjudicate on the issues of fact raised on the evidence adduced.

(3)     The Federal Court of Appeal erred in failing to observe that it is not enough for them to be satisfied that they would not have come to the conclusions of fact to which the Area Court and the High Court came; the Federal Court of Appeal ought to be satisfied in addition that no reasonable tribunal could have come to the conclusions of fact aforesaid.

(4)     The decision of the Federal Court of Appeal is against the weight of evidence."

In his brief of argument, Chief Williams, SAN, learned Counsel for the appellant formulated three questions for determination in this appeal as follows:-

(1)     In what circumstances should an appellate court reverse a finding of fact by the Court of trial?

(2)     Was the Upper Area Court justified in reversing the judgement of the Area Court in this case?

(3)     Is the Court of Appeal justified in taking upon itself the job of reviewing, and making findings of fact being a court of further appeal from a Court of Appeal?

I find myself in agreement with the appellant's counsel that answers to these questions will cover the main contentions of the appellant in this appeal.

As a preliminary point, Chief Williams submitted that the powers conferred on courts exercising appellate jurisdiction under the Area Courts Edict of Kwara State are similar to those of other courts established by statute, and that being so, he further submitted, the powers of the Upper Area Court to interfere with findings of fact in the exercise of its appellate jurisdiction are no greater than those conferred by statute on this Court or on the Court of Appeal in the exercise of their respective appellate jurisdictions.

Now the powers conferred on courts exercising appellate jurisdictions in civil matters under the Area Courts Edict of Kwara State (Edict No.2 of 1967) are contained in Section 59 of the Edict. That section reads as follows:-

"59     (1)     Any court exercising appellate jurisdiction in civil matters under the provisions of this Edict may in the exercise of that jurisdiction-

(a)     after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order or exercise any such power as the court of first instance could have made or exercised in such case or as the appeal court shall consider that the justice of the case requires;

(b)     quash any proceedings and thereupon where it is considered desirable, order such one to be retried before the court of first instance or before any other court of competent jurisdiction.

(2)     In the exercise of its powers under this section a court may hear additional evidence as it considers necessary for the just disposal of the case."

Having compared the above provisions with the general powers of this Court under s.22 of the Supreme Court Act

No. 12 of 1960 and those conferred on the Court of Appeal under s.16 of the Court of Appeal Act 1976, I am left in no doubt that the submission of Chief Williams, with regard to the powers of the Upper Area Court to interfere with the findings of facts in the exercise of its appellate jurisdiction, is right.

It was learned Senior Advocate's further submission that an appeal on questions of fact may raise one or other of the following questions:-

"(i) Where there is irreconcilable conflict in the evidence, the trial court can be criticised for believing one side and not accepting the evidence of the other side.

(ii) The trial Court may be criticised for making a finding of fact when there is absolutely no evidence to support such finding.

(iii) The trial Court may be criticised for making a finding of fact when the evidence relied upon to support such finding was inadmissible.

(iv) The trial court may be criticised for making a finding of fact based on inference from findings of primary facts not disputed by the appellant though the latter says that the inference made was wrong."

He further submitted that the Courts of Appeal in this country have, over the years, laid down for themselves guidelines for dealing with appeals on questions of fact where the decision in the Court below rested mainly on the credibility of witnesses, and in this connection reference was made to Lion Building Ltd. v. Shadipe (1976) 12 SC. 135 in which this Court quoted, with approval, the guidelines laid down by the Full Court of Nigeria in 1899 in the case of Macaulay v. Tukuru 1 N.L.R. 35. It was the contention of Chief Williams, and I think this is really the crux of the matter in this appeal, that both the Upper Area Court and the Court of Appeal failed to follow the guidelines laid down in the cases cited. This therefore brings me to the consideration of the first question formulated for determination-namely the circumstances in which an appellate court would be justified to reverse a finding of fact by a court of trial.

Now it is settled law that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. Akinloye & Anor. v. Eyiola & Ors. (1968) NMLR 93 and Obisanya v. Nwoko (1974) 6 SC. 69 at p.80. Also see Victor Woluchem & Ors. v. Chief Gudi & Ors. (1981) 5 SC. 291 at p.236, where Nnamani, J.S.C. delivering the lead judgement of the court said:-

"The principles under which an Appeal Court would interfere with the findings of a lower court have been laid down by several authorities of this Court and Courts in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court. See Folorunsho v. Adeyemi (1975) N.M.L.R. 128 CAW; A.M. Akinloye v. Bello Eyiola & Ors. 1968 N.M.L.R. 92 at page 95; Balogun v. Agboola (1974) 10 SC. 111."

It is, however, pertinent to point out in this case that one of the main complaints of the plaintiff/appellant before the Upper Area Court was that the trial Area Court failed to consider a considerable body of evidence before it, and especially the evidence of a number of witnesses called by the plaintiff. This was the complaint in additional ground two of the plaintiff/appellant's grounds of appeal in the Upper Area Court.

Now the record shows that at the conclusion of the hearing the Area Court reviewed the totality of the evidence adduced which exercise was no more than mere repetition of the evidence of each witness-made reference to the evidence of a few witnesses and dismissed the plaintiff's claim. The Area Court did not, as any court trial would be expected to do, consider the whole of the evidence adduced by each party before it gave its decision. This is contrary to the mandatory provisions of Order 11, rule 10 of the Area Courts (Civil Procedure) Rules, 1971 which reads as follows:-

"(10) When the cases for both sides have been closed the court shall consider the whole matter and give its decision which shall be put into the form of an order in accordance with Order 14"

(The underlining is mine).

It is indeed the duty of a trial court to consider the totality of the evidence adduced by the parties before giving its decision. This point was stressed by this Court in Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC.91 at p.93 where Fatayi-Williams, J.S.C. (as he then was), delivering the judgment of the Court said:-

"We think there is merit in the complaints of the defendants/appellants. When an appellant complains that a judgement is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgement given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. 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; if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff's claim will be dismissed."

It is obvious from the record that the Area Court did not follow the procedure outlined above. The record shows that at the trial the plaintiff gave evidence and called fourteen witnesses. The defendant also gave evidence and called eighteen witnesses. The Area Court suo motu called two witnesses. So in all the thirty-six witnesses testified but the Area Court considered the evidence of only nine and inexplicable ignored the evidence of the remaining witnesses. Could not the Upper Area Court, as the appellate court, in the circumstances of this case, reassess and re-evaluate the evidence before the Area Court and make some specific findings on such evidence? I think it could. In Shell-B.P. Petroleum Development Company of Nigeria Ltd. v. His Highness Pere Cole & Ors. (1978) 3 SC. at p.194, Bello, J.S.C. delivering the judgment of the Court, said:-

"This Court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial court to deal with the facts and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial: See Chief James Okpiri & Others v. Chief Igoni Jonah & Others (1961) 1 ALL N.L.R. 102. Olalere Obadara & Others v. The President, Ibadan West District Court (1964) 1 ALL N.L.R. and Oladipo Maja v. Learndro Stocco (1968) N.M.L.R. 172."

It is therefore my view that the Upper Area Court was, in the circumstances of this case, justified in re-evaluating the evidence adduced before the Area Court and especially as there is nothing on the record to show that the Upper Area Court accepted the testimony of any witness whose credibility was doubted or questioned by the Area Court. I agree with Mr Sofola, SAN, counsel for the respondent that the review of the evidence by the Upper Area Court was based entirely on inferences which were drawn from the evidence before the Area Court.

Now, was the Court of Appeal right in reversing the decision of the High Court and restoring that of the Upper Area Court? I think it was. In the first place I agree entirely with Mr Sofola's submission that the High Court, as a Court of second appeal, was in error to have substituted its view, on the printed evidence, for those of the Area Court and to have thereby come to a decision different from that of the Upper Area Court. Secondly the Court of Appeal, in its judgment reversing the decision of the High Court states its reasons for doing so and I am satisfied that in this appeal, none of those reasons has been shown to be wrong.

Finally on the general ground, I agree with the Court of Appeal that on the preponderance of evidence adduced the plaintiff is entitled to the judgment of the Court. I would therefore dismiss the appeal. The appeal is hereby dismissed and the decision of the Court of Appeal, restoring the judgment of the Upper Area Court dated 29th August, 1978 in favour of the respondent, is hereby affirmed. The appellant shall pay N300.00 costs to the respondent.

Kayode Eso, J.S.C.:-I have had a preview of the judgement which has just been read by my learned brother Kawu, J.S.C. and I am in complete agreement that for the reasons he has so lucidly given the appeal shall be dismissed and it is hereby dismissed with N300.00 Costs.

Uwais, J.S.C.:-I have had the advantage of reading in draft the judgment read by my learned brother Kawu, J.S.C. I agree with it and I too would dismiss the appeal.

It is to be observed that ground 1 of appeal which reads:-

"The trial before the Igbomina South Central Area Court was irregular and void because the trial court took upon itself to summon to (two) witnesses without the consent of the parties."

Has been argued feebly and somewhat abandoned half way in the appellants argument as contained in his brief. But I think it is pertinent to point out that the ground of appeal is not a complaint against the decision of the Court of Appeal. Rather, it is a complaint against the decision of the trial court-the Igbomina South Central Area Court for calling two witnesses of its own motion without the consent of the parties. Such ground cannot be argued before us as there is no appeal from the Area Court to this Court-Okeke Anadi v. Okeke Okoli, (1977) 7 SC. 57 at p.64. Of greater significance though is the issue whether an area Court can summon witnesses to testify before it without the consent of the parties in dispute. Undoubtedly, the area courts have the power to do so. For sections 35 and 36 of the Area Courts Edict of Kwara State (Edict No.2 of 1967) provides as follows:-

"(35) Every area court shall have power to summon before it for the purpose of giving evidence any person within the State.

(36) Any person present at an area court, whether a party or not to any cause or matter before the court, may be required by the court to give evidence as if he had been summoned to attend and give evidence."

Furthermore, Order 13, rule 1(1) of the Area Courts (Civil Procedure) Rules, 1971 of Kwara State (Kwara S.L.N. 3 of 1971) provides:-

"A court may of its own motion or on the application of either party summon any person subject to its jurisdiction to attend the court and to give evidence or to produce any document in his possession."

It therefore follows that area courts are not bound to obtain the consent of the parties in a case before them prior to exercising the power to summon witnesses suo motu. And where they call witnesses as such, the trial is neither irregular nor void.

For these and the reasons contained in the judgment of my learned brother Kawu, J.S.C. the appeal is dismissed with N300.00 costs to the respondent.

Kazeem, J.S.C.:-The plaintiff (now the respondent) who represented the Ba'a family of Ijomu in Oro District of Kwara State had sued the defendant one David Adewoye on behalf of the Efundere Family of Ijomu-Oro in the Igbomina South Central Area Court (hereinafter referred to as the Area Court) for an order to restrain the Efundere family from using the land in Ijomu Oro town because the land belonged to Ba'a family from time immemorial. This was in effect a claim for a declaration of title by the plaintiff/respondent to all the piece and parcel of land in Ijomu Oro Township and Ijomu Oro forest. Later David Adewoye died; and he was substituted by Samson Awoyale (now the appellant). At the trial, both sides called a large number of witnesses and relied on traditional history as well as proof of witnesses and possession and acts of ownership, in support of their claims. The Area Court also called two witnesses namely the Oloro of Oro and Bale of Ijomu. At the conclusion of evidence and addresses by learned Counsel, the Area Court merely made a review of those evidence and addresses in about forty pages of its judgment. Thereafter it considered the testimonies of a few witnesses called by the respondent and the appellant in about three pages of the Record before coming to its conclusion that "the plaintiffs (i.e. respondent) has failed to convince us that he has all the forest area of Ijomu and Ijomu Township." The plaintiff's claim was therefore dismissed.

On an appeal to the Upper Area Court at Omu-Aran which had similar powers on appeal as the Court of Appeal, Kaduna, that Court took the view that the Area Court did not adequately consider the preponderance of evidence tendered before it by both parties before coming to its decision. The Upper Area Court therefore evaluated the evidence and reversed the findings of that made by the Area Court. The appeal was then allowed and title to both Ijomu Township and Ijomu forest was awarded to the Ba'a family.

Again, the Efundere family being dissatisfied with that decision, appealed to the High Court, Ilorin on several grounds, including the omnibus or general ground that the Decision of the Upper Area Court was unreasonable, unwarranted and could not be supported having regard to the weight of evidence. The High Court in its appellate capacity dismissed the appeal on all the other grounds except the general ground. On that general ground, that court again purportedly reviewed and evaluated all the evidence tendered before the Area Court but still like the Area Court, ignored some of those evidence. Eventually, it came to the conclusion thus:-

"We have ourselves weighed all the evidence in this case thoroughly as we possibly can and we are of the view that the trial court arrived at a right decision when it dismissed the plaintiff's case, although it failed to give all the reasons it ought to have given." (The italics are mine).

The High Court then allowed the appeal and restored the decision of the Area Court which had previously dismissed the claim of the Ba'a family.

Against the judgment, the Ba'a family appealed to the Court of Appeal in Kaduna on several grounds of misdirection of law and facts; and in a well-considered judgment, that court found that the High Court grossly misdirected itself on the law and on the facts; and having considered those misdirections, it came to the conclusion that the plaintiff (respondent in this appeal) i.e. the Ba'a family in its opinion was entitled to succeed on the preponderance of evidence on both traditional evidence and clear cogent acts of possession and ownership. The appellants-the Efundere family-have now appealed to this Court against that judgment on four grounds as follows:-

"(1)    The trial before the Igbomina South Central Area Court was irregular and void because the trial Court took upon itself to summon witnesses without the consent of the parties.

(2)     Further and in the alternative the Federal Court of Appeal erred in law and on the facts in allowing the appeal and (without directing a retrial) entering judgment in favour of the Ba'a Family.

PARTICULARS OF ERROR

The nature and character of the evidence before the Area Court at Oro was such that it was not possible for the Upper Area Court or for the Federal Court of Appeal to assess the Credibility of the witnesses and adjudicate on the issues of fact raised on the evidence adduced.

(3)     The Federal Court of Appeal erred in failing to observe that it is not enough for them to be satisfied that they would not have come to the conclusions of fact to which the Area Court and the High Court came; the Federal Court of Appeal ought to be satisfied in addition that no reasonable tribunal could have come to the conclusions of facts aforesaid.

(4)     The decision of the Federal Court of Appeal is against the weight of evidence."

On those ground, Chief F.R.A. Williams, SAN, learned Counsel for the appellant had set out in his Brief of Argument, three questions for determination as follows:-

(1)     "In what circumstances should an appellate court reverse a finding of fact by the Court of trial?

(2)     Was the Upper Area Court justified in reversing the judgement of the Area Court in this case?

(3)     Is the Court of Appeal justified in taking upon itself the job of reviewing, and making findings of fact being a court of further appeal from a Court of Appeal?

In formulating the above questions for determination, learned Counsel for the appellant seemed to have recognised the fact that the High Court fell into an error in evaluating the evidence of the witnesses before the Area Court even though it was considering an appeal to it from the Upper Area Court. In its conclusion, that Court even conceded that the Area Court failed to give all the reasons it ought to have given in arriving at its decisions.

The basic settled principle for the determination of appeal on issues of facts by an Appellate court is that where the trial court unquestionably has evaluated the evidence and appraised the facts, it is no longer the business of the Court of Appeal to embark on a fresh appraisal of such evidence and to not only disturb findings of fact by the trial court, but also to substitute its own views for those (of the trial court. See Akinloye & Anor. v. Eyiola & Ors. (1968) N.M.L.R. 92 at p.95; Obisanya v. Nwoko (1974) 6 SC. 69 at p.80; Victor Woluchem & Ors. v. Chief Gudi & Ors. (1981) 5 SC. 291 at p.326-330. That principle was also reiterated by Eso, J.S.C. in Chief Frank Ebba v. Chief Warri Ogodo & Ano. (1984) 4 SC. 8 when after referring to many other authorities on the point he observed thus:-

"It is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the Court forms of them; . .