AMINU S. BAMISHEBI & ORS (APPELLANT)
ZACCHEUS FALEYE & ORS (RESPONDENT)
(1987) All N.L.R. 235
Division: Supreme Court of Nigeria
Date of Judgment: 3rd April, 1987
Case Number: (SC. 164/1985)
Before: Bello C.J.N. Eso, Aniagolu, Uwais, Coker JJ. S.C
The plaintiff's claimed against the defendants a declaration of title to land situated at Igbo Elodi, Otta in Ogun State and an injunction restraining the defendants, their agents and servants from trespassing on the said land. There are three parties in the proceedings representing three families. The plaintiffs represent the Eledi Atala family, the 1st to 4th defendants represent Atelofobatoja (otherwise known as Itele) family, while the 5th and 6th defendants are representatives of the Odota family.
The plaintiff's case at the trial was their ancestor, Eledi Atala, was the first person to settle on the Land. During his life time, he cultivated the land, granted portions to various persons for farming as tribute paying tenants according to Yoruba native law and custom. Among the ancestors of persons granted portions of the land was one Odota, whose descendants (including 5th and 6th defendants) still farm on the land.
The two sets of defendants (Itele and Odota families) filed a joint defence. They denied that the plaintiff ancestor was original owner of the land or their progenitor, Odota, ever sought from Eledi or that he or his descendants granted any portion of the farmland. Their case was that Atelefobaloja (Alias Itele) the ancestor of 1st to 4th defendants, was the original owner, made customary grants of portions to various persons including Odota for farming. Odota at the request of Itele the original owner made subgrants to Atala alias Jagadu, the ancestor of the plaintiffs and to other persons.
The parties called evidence and it was not disputed that descendants of two of the three families (Eledi and Odota) were on the land farming and have sub-tenants thereon. The trial Judge entered judgment in favour of the plaintiffs. The defendants being dissatisfied appealed to the Court of Appeal against the decision and the plaintiffs filed a cross appeal against the order dismissing the claim for forfeiture. The Court of Appeal dismissed both the appeal and cross appeal. The defendants only Appeal to the Supreme Court and the first ground of Appeal is whether the Court below is right in upholding the decision of the trial court which rejected the plea of estoppel per rem judicatam founded on the judgment of Agbaje J (as he then was) in SUIT No. AB/39/66.
(1) In my view, the question of title of the parties although raised was never decided by the 1966 case. What the 1966 case decided is that the plaintiffs were not in exclusive physical possession of the land as to make them competent to successfully claim for damages for trespass. The case of the plaintiffs in the instant case is that members of the Odota family who admittedly were on the Land farming are their tenants and not tenant of the Itele (1st to 4th defendants) family.
(2) It is not the duty of an appeal Court to interfere with the finding of a trial Court where such finding supported by evidence and is reasonable. The duty of an appeal Court is to determine whether the trial Court correctly decided the issues presented before it. The error committed in this case was that of the appeal Court, not that of the trial Court regarding the evidence of 2nd P.W. The error does not in my view affect the Correctness of the judgment of the trial Court and the final decision of the Court of Appeal.
Chief F.A.O. Oriade (with him N.A. Babafemi Esq) for Appellants.
Chief A. Fadayiro (with him A.F. Okunuga Esq) for Respondents.
Cases referred to
(1) Awooner Renner v. Annah & ors 2 W.A. 258.
(2) Kponugle v. Kalidja 2 WACA 24.
(3) Kwobodo v. Chief Federal Electoral Officer (1984) 1 SC.1.
(4) Okuoja v. Ishola (1982) 7 S.C. 314.
(5) Omogegbe v. Lawani (1980) 3-4 S.C. 108.
(6) Omoregbe v. Edo (1971) 1 ALL. NLR 282.
(7) Outram v. Morewood (1803 3 East 346.
(8) Oyediran v. Ama (1970) ALL N.L.R. 313,317.
(9) Sanyaolu v. Coker (1983) 3 S.C. 124,157.
(10) Samuel Fadior & Anor. v. F. Gbadebo & Anor. (1978) 3 S.C. 219 at 28.
(11) Surakatu I. Amida & Ors. v. Taiye Oshoboja & Ors. (1984) 7 S.C. 68 at 89.
(12) The State v. Okola (1974) 2 S.C. 73, 80.
(13) Woluchem v. Gudi (1981) 5 S.C. 291 at 326.
Coker, J.S.C. The Court of Appeal sitting at Abeokuta dismissed the defendants' appeal from the decision of Craig, C.J., of Ogun State High Court whereof on the 8th day of May, 1979, he entered judgment with costs in favour of the plaintiffs in their claim for declaration of title and for an order of injunction against the defendants, their agents and servants in respect of a piece of land situated at Igbo Elodi. Otta, in Ogun State, and more particularly described and verge 'Red' in a plan No. AK. 30 4B of 31st July, 1974. The defendants being dissatisfied appealed to the Court of Appeal against the decision and the plaintiffs filed a cross-appeal against the order dismissing the claim for forfeiture. The Court below, in a considered judgment dismissed both the appeal and cross appeal with costs. The defendants only have further appealed to this Court.
For a proper understanding of the issues raised in this appeal, I shall give a summary of the facts of the case. There are three parties in the proceedings representing three families. The plaintiffs represent the Eledi Atala family, the 1st to 4th defendants represent Atelefobaoloja (otherwise known as Itele) family, while the 5th and 6th defendants are representatives of the Odota family.
The plaintiff's case at the trial was that their ancestor, Eledi Atala, was the first person to settle on the land. During his lifetime, he cultivated the land, granted portions to various persons for farming as tribute paying tenants according to Yoruba native law and custom. Amongst the ancestors of persons granted portions of the land was one Odota, whose descendants (including 5th and 6th defendants), still farm on the land.
The statement of claim averred that
"The 1st to 4th defendants and members of their family, as were their ancestors have no title right or interest within the said Igbo-Eledi farmland and there is no history to connect them with any part or portion of the Eledi Atala family land."
"That the 1st and 4th defendants have since 1962 continued to interfere with the possession, occupation and quiet enjoyment of Eledi Atala family over the said portion of plaintiffs' land."
The two sets of defendants (Itele and Odota families) filed a joint defence. They denied that the plaintiff's ancestor was original owner of the land or that their progenitor, Odota, ever sought from Eledi or that he or his descendants granted any portion of the farmland. Their case was that Atelefobaloja (alias Itele) the ancestor of 1st to 4th defendants, was the original owner, made customary grants of portions to various persons including Odota for farming. Odota at the request of Itele, the original owner, made sub-grants to Atala, alias Jaguda, the ancestor of the plaintiffs and to other persons.
The parties called evidence and it was not disputed that descendants of two of the three families (Eledi and Odota) were on the land farming and have sub-tenants thereon. Because of the importance attached to the evidence it will be necessary to comment on his (1st plaintiff) evidence and of 2nd P.W. Andu Makinde and those of other witnesses called by plaintiffs.
1st plaintiff, Zaccheus Faleye, in his evidence admitted that one Yesufu Oloyede, Yesufu Lemomu, Shitta Adesona and Suliyu Amodu have farms on the land. He said "all these I know are all brothers of 5th defendants they are all farming on the land in dispute."
As to how the 5th defendant came to farm on the land, 1st plaintiff said-
"Coker Adesona (5th defendant) got to our land through one Sanya-Sanya asked Eledi Atala for land for Adesona. Sanya is now dead."
"The 5th defendant not only refused to pay his customary dues, he also claimed the land as his.
"I do not know Sule Suberu-the 6th defendant. I know the 1st defendant and Alimi Elegbede, 2nd defendant.
We have sued these two defendants because they were part of the crowd who came to disturb us when we were surveying our land. I do not know the 3rd defendant, but I know the 4th defendant, Karimu Ajayi."
Andu Makinde, was 2nd P.W. The material part of his evidence is as follows-
"I am farmer. I have been farming before the Adubi war in 1914. My father Amose asked for some of the land from Eledi, and he was granted the land. My father used to pay yearly tribute to Eledi. He used to give maize and yams every year, as customary tribute. My father died, I took over the land and still farm on it till today.... I am head of the Idota family, I know the Itele family. My father did not ask for land from the Itele family."
"XXd by Adigun.
I admit that my father was not related to the Idota family but my maternal grandfather he was the head of Idota family and when he died, I became the Head of Idota family
I know Coker Adesona (5th defendant). He is a member of Idota family."
It is clear from his evidence that he did not purport to derive his holding of the farmland through Odota or as a member of Odota family but through his father Amose who was not a member of Odota family.
The defendants called evidence in line with their defence. Aminu Sunmonu the 7th defendant testified that his ancestor Atelefobaloja (alia Itele) was the original owner of the land and Amosun, his only child, granted part of the land in dispute to Odota whose descendants are still on the land. He gave their names as follows-"Coker Adesona (5th defendant)
Sule Dakan Alamu
He denied that the 5th defendant was plaintiffs' family tenant.
The 5th defendant, Coker Adesona, gave evidence denying that his ancestor, Odota, was tenant of Eledi Atala or that of his family. He said Itele was the original owner who granted Odota, (his founding father), the land as customary tribute paying tenant and that member of his family are still farming on the land and pay customary tributes to the Itele family.
The first ground of appeal is whether the Court below is right in upholding the decision of the trial court which rejected the plea of estoppel per rem judicatam-founded on the judgment of Agbaje J.,(as he then was) in SUIT NO. AB/39/66.
Uncle-Omo, J.C.A., in the lead judgment of the court below, dismissed this ground to appeal. He examined critically Agbaje's judgment in order to discover what he decided and came to the decision that-
"Title in the 1966 case was neither the ratio of nor was it fundamental to a decision in that case. The trial Judge decided the case, correctly in my view without recourse to issue of title. He did not only say so, but explained why."
Before this Court, Chief Oriade, learned Counsel for the appellants, submitted that Agbaje's judgment operated as estoppel per rem judicatam on the issue of title to the land and the other reliefs claimed by the plaintiffs/respondents.
Learned Counsel would appear to labour under the erroneous view that it is immaterial whether or not that question was actually decided by the trial Judge because the question of title and right to exclusive possession were raised by the parties. In my view, in order to successfully establish the plea of estoppel per rem judicatam there must be a pronouncement and final decision on the particular issue. Put more precisely, there are three conditions which must be satisfied-the fact being relitigated must be-
(1) directly in issue in the case,
(2) actually decided (by a competent Court) and
(3) appearing from the judgment itself to be the ground on which it is based.
The claims in the 1966 case were for damages for trespass and for an order of injunction against the defendants. The judgment stated that Chief Tayo Coker, counsel for the plaintiffs submitted that title to the land in dispute was in issue. He cited Kponugle v. Kalidja, 2 W.A.C.A.24, Agbaje,J, in his judgment said as follows-
"In the case in hand which is founded on trespass to land the matters directly in issues are
(1) whether the Plaintiffs are in possession of the land in dispute at the time of the trespass alleged
(2) whether the defendants broke and entered the said land, if (1) and (2) are both answered in the affirmative
(3) whether the defendants had a legal justification for their entry upon the land."
It will be seen later that Agbaje J. was concerned only with the issue of possession, that is the first question. He did not consider the second and third questions.
"I can now go to consider the case of the plaintiffs. As I said Chief Coker referred to me to the case of Kponugle v. Kalidija 2 W.A.C.A.24 for this submission that title is in issue in this. In that case the Privy Council said "The respondents' claim being one of damages for trespass and for injunction against further trespass it follows that he has put his title in issue. His claim postulates, in their Lordships opinion, that he is either the owner of Bunya land, or he has had prior to the trespass complained of exclusive possession of it."
But I do not think that because of the above statement of law by the Privy Council one own (sic) (can) dispense with what a plaintiff must prove to succeed in an action for trespass. Thus, it is my view that the principle of law enshrined in such decisions as Awooner Renner v. Annah & ors. 2 W.A.C.A.258 Namely, that in order to maintain an action for trespass the plaintiff must have a present possessory title-an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry, would still apply in this case."
In my view the case only establishes that the plaintiffs were not in exclusive physical possession of the land. The issue of possession is clearly separable from that of ownership of the land. Agbaje J. was concerned with trespass simpliciter and did not consider it necessary to decide the issue of title to the land. The learned trial Judge said:
"what the 2nd P.W. Zaccheus Falaye said-
"Nobody has ever disturbed us on Eledi land until about 10 years ago when the defendants prevented us from surveying it. The defendants damaged the survey pillars we buried on the land the defendants also damaged our crops on the land."
For the foregoing reasons I hold that the plaintiffs are not competent to maintain an action for trespass to the land
in dispute. Even if I accept the submission of Chief Toye Coker, Counsel for plaintiffs, that both the plaintiffs and their tenants are in possession of the land in dispute, which I do not for the reasons I have given above...."
In my view therefore, the question of title of the parties although raised was never decided by Agbaje, J. The principle is clearly stated by Idigbe, J.S.C. in Samuel Fadior & Anor. v. Festus Gbadebo & Anor. (1987)3 S.C.219 at p. 228.
"There is, however a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances "issue estoppel" arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty, and solemnity been determined against him. (See Outram v. Morewood (1803) 3 East 346). Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same) (per se or by their privies)."
What the 1966 case decided is that the plaintiffs, were not in exclusive physical possession of the land as to make them competent to successfully claim for damages for trespass. The case of the plaintiffs in the instant case is that members of the Odota family who, admittedly were on the land farming, are their tenants and not tenants of the Itele (1st to 4th defendants) family.
The next question is whether the court below is right in upholding the decision of the trial court that it exercised its discretion judicially in granting plaintiffs declaration of title to the land in dispute on the evidence and its findings of fact. In other words whether the plaintiffs were entitled to judgment as pronounced by the trial court. The question is-was the court below right in holding that the plaintiffs discharged the onus of proof which the law places on them in a claim for declaration of title? The question arises in grounds 2, 4, 5 and 6 and may be conveniently taken together: Ground 3 was withdrawn and struck out. It was argued that the court below misdirected itself in holding that the learned trial Judge rightly found that the plaintiffs/respondents had established acts of ownership extending over a long period of time in respect of the land in dispute, when they (plaintiffs) failed to prove the very basis of their claim to declaration, namely that their ancestor, Eledi Atala granted the predecessor of the Odota family the right to farm on the land. The plaintiffs claim for declaration should have been dismissed, in the absence of credible evidence or recent numerous acts of exclusive user evidencing ownership of the land. Learned Counsel submitted that there was undisputed evidence that the 1st to 4th defendants farmed the land as owners and that their ancestor, Itele, granted portions to some people as customary tribute paying tenants, including Odota Counsel, Chief Oriade, further submitted that the court below erred in holding that the 5th and 6th defendants, representing the Odota family were customary tenants of the Eledi Family contrary to the specific finding of the trial Judge that they were tenants of Itele Family. The evidence of Andu Makinde who testified for the plaintiffs, counsel contended, should not have been held against the Odota family whom he did not represent. He cited Oyediran v. Amao (1970) All N.L.R. 313, 317 and Omoregbe v. Edo (1971) All N.L.R. 282, The State v. Okola (1974) 2 S.C. 73 p.80 and Sanyaolu v. Coker (1983)3 S.C. 124 p.157. Finally learned Counsel submitted that the decision of the court below is speculative, unreasonable and against the weight of evidence. The plaintiffs, he argued, failed to discharge the onus resting on a plaintiff seeking declaration of title.
In his reply, Chief Fadayiro, learned Counsel for the Respondents adopting brief, stressed the fact that the trial Judge did not rely on the evidence of 2nd P.W. alone. There were other witnesses called by the plaintiffs, whose evidence the trial Judge accepted. He conceded that the 2nd P.W. did not say he derived his grant of the farmland through the Odota family, but found that 2nd P.W. Andu Makinde was head of Odota family and since 1914 had been paying annual tributes to plaintiffs' family, and that his evidence was not challenged and accepted by the two courts. He submitted that the Appellants did not call their tenants as witness as the plaintiffs did and that there were concurrent findings in favour of the respondents. He cited Omogegbe v. Lawani (1980) 3-4 S.C. 108 and Mogo Chinendu v. Mbamalu and referred to Order 2 Rule 32 of the Supreme Court Rules 1985. He finally submitted that the decision of the trial court should be upheld because it was based on the totality of the evidence. The trial Judge relied on the evidence of three other witnesses besides that of the 2nd P.W. He also referred to the judgment where the trial court held that plaintiffs showed more acts of ownership over a larger portion of the land than the defendants. On the preponderance of evidence, counsel contended, the trial court found that only Adisa Adesona was shown as farming on the area in dispute, whereas all the four tenants of the plaintiffs were prominently shown on the plan on different parts of the land. He further submitted that the conflicts which existed in the evidence of Andu Makinde were trivial and did not affect the soundness of the judgment.
In Surakatu I, Amida & Ors. v. Taiye Oshoboja & Ors. (1987) 7 S.C. 68, at p. 89, Bello, J.S.C. (as he then was) stated the principle which I consider relevant to these grounds of appeal-
"A court of appeal ought not to embark on a fresh appraisal of the same evidence in order to arrive at a different conclusion from that reached by the trial court. An appeal court may only interfere with the findings of facts of a trial court if it is satisfied that the trial court in its appraisal and evaluation of the evidence has not made any use of the advantage of seeing the witness and observing their demeanour or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from established facts so that an appeal court is entitled to draw its own conclusion or the trial court has applied wrong principle of law; see Woluchem v. Gudi (1981) 5 S.C. 291 at 326, Okujo v. Ishola (1982) 7 S.C. 314 at 349 and Nwobodo v. Chief Federal Electoral Officer (1984) 1 S.C. 1 at 53 for the recent pronouncements of this Court."
It is my view that while there might be substance in the contentions of Chief Oriade, however, the submission of Chief Fadayiro is right. The case of the plaintiffs was not founded on the fact that 2nd P.W. or his father was member of Odota family. It was not contended that both the plaintiffs and the defendants and their tenants were farming on the land in dispute. In the lead judgment of the court below Uche-Omo, J.C.A. rightly stated-
When the trial Judge was considering the claim for a declaration of title he believed and so found that the Odota family (5th and 6th defendants) were customary tenants of the plaintiffs as set out at p. 103 lines 1-15 which for emphasis I will reproduce verbatim as follows-
"Both parties said that they were in possession of the land and that they gave part of it out to tenants who paid yearly tributes. The plaintiffs called four different tenants all of whom had been on the land for several decades. I accept their evidence. I am particularly impressed by the evidence of 2nd P.W. Andu Makinde who claimed to be the Head of the Odota family. His status as head of that family was not seriously challenged by the defence and I accept his testimony on this. He also said that both he and his father had always paid yearly tributes to the plaintiffs. I believe this also. I note in passing that when Coker Adesona, 5th defendant (a prominent member of Odota family) testified, he was not asked who the Head of Odota family was nor did he deny that it was the 2nd P.W." (note: Italics mine).
"When he now proceeded to consider the 2nd claim for forfeiture and possession against the 5th and 6th defendants, he believed and so found that they were the tenants of the Itele family and therefore the plaintiffs cannon succeed in that claim against them." He then stated at page 106 lines 6-20 as follows-
"On the second leg of their claim, the plaintiffs are asking for forfeiture and possession against the 5th and 6th defendants and members of Odota family. The 1st plaintiff stated that these defendants were their tenants, but in my judgment, the evidence does not go far enough to support that assertion. For instance, I was not told on what terms these defendants were granted the land, what tributes they were paying and when they last paid these tributes, furthermore, none of the tenants who testified for the plaintiffs said that they had seen Coker Adesona or any member of Odota family pay tribute in their presence."
The evidence which I accept is that Coker Adesona i.e. Odota family got to the land in dispute through the Itele family and is their tenant. In my judgment, whatever order is made against the Itele family would equally bind their tenants." (note: Italics mine).
It is quite obvious that these two decisions of the trial court are conflicting."
In coming to their decisions, the two courts relied only to some extent on the evidence of 2nd P.W. Andu Makinde. However, Uche-Omo, J.S.C. seems to have elevated his evidence to a higher status than is reasonably justified beyond that of a tenant giving evidence for himself of how his father got the land and the terms of his tenancy. The learned justice said at p. 155-
"There is evidence before the court by the plaintiffs to the effect that the Odota family are their tenants. They also pleaded the head of that family, 80-year old Andu Makinde, testified for the plaintiffs as P.W.2 and admitted not only that their family members on the land in dispute are tenants of the plaintiffs, but also stated that he and his father before him paid yearly tributes to plaintiffs' family. He specified the nature of the tributes-maize and yam. It is the evidence of this witness and particularly that as to payment of yearly tribute which the trial Judge was particularly impressed by. Against this testimony, the star witness for the defendants was the 5th defendant-Coker Adesona-also of Odota family on whose evidence as to how Olaforikanmi came to be granted the land their family occupies within the land in dispute the learned trial Judge commented that "This evidence has a false ring and I find it difficult to accept" As between the two witnesses therefore, on the specific issue of who granted the land-Eledi Atala or Itele-the trial Judge preferred the evidence of P.W.2 and, if I may comment, rightly so. As an 80-year old head of the family his evidence unless shaken or destroyed by cross-examination or other incontrovertible evidence of legal findings, is likely to be weightier."
With respect to the learned justice, the statements in these portions are to a large extent misconceived and not supported by evidence. Nowhere in the pleading of the plaintiffs was it stated that 2nd P.W. was head of the Odota family Nor was it his evidence that any member of Odota family was tenant of plaintiffs' family. Amose, his father, was not a member of Odota family. His maternal grandfather who was a member of Odota family was not said to have obtained any grant from plaintiffs' family. He did not say he obtained the farmland by virtue of his membership of Odota family.
It is my view that although the learned justice of appeal misconceived the evidence of this witness, the same cannot be said of the trial Judge. The trial Judge was entitled to believe the evidence of 2nd P.W. that his father farmed on the land as tenants of plaintiffs' family and not as tenant of Itele family. The evidence of the witness was not discredited under cross-examination.
3rd P.W. Asani Bada, a farmer and member of Kole family testified that his ancestor Kole was granted land he was farming by plaintiff's ancestor, Eledi, as tribute paying tenant and that he has been farming there before the Adubi war of 1914. He testified that no member of his family ever paid tribute to Itele family or to any other family besides the Eledi family.
The 4th P.W. Sule Akinboyede, testified that his ancestor, Oluose, was a tribute paying tenant of Eledi and that he was farming on the part of the land in dispute. His father and grandfather farmed on the land as tenants of Eledi family. He knew the Itele family and no member of his family was ever disturbed by any member of Itele family.
The 5th P.W. Kelani Nosiru Akindele, a member of Odota family testified that the land in dispute belonged to the plaintiffs' family and that he was farming on the portion which he inherited from his grandfather, Sanyaolu, who obtained it from Oluwo Atala (a member of plaintiff's family) on payment of annual tribute. He has been farming on the land before Adubi war of 1914.
The leaned trial Judge in his judgment found-
"The plaintiffs called 4 different tenants all of whom had been on the land for decades. I accept their evidence. I am particularly impressed by the evidence of 2nd P.W. who claimed to be the head of Odota family. He also said that he and his father had always paid yearly tributes to the plaintiffs. I believe this also.
"Or the part of the defendants, they called two tenants. Coker Adesona 5th defendant and Sule Adesona, 4th D.W. Both these men belong to Odota family and in fact, they represent just one tenant. Although the 7th defendant claimed to have many tenants on the land, he later agreed under cross-examination that Odota is their only tenant and that others are sub-tenants. The defendants did not call any of these sub-tenants. However, Asani Bada, 3rd P.W. testified for the plaintiffs and he claimed that he belonged to Kole family, he also claimed that they were tenants of the plaintiffs family. I accept that testimony."
In paragraph 18 of the amended statement of defence, defendants pleaded that Odota, who was granted part of the land by Itele, their ancestor, allowed Kole to farm on part of the land. But the evidence of 3rd P.W. Asani Bada, a descendant of Kole and the evidence of 5th P.W. Nosiru Akindele, another member of Odota family, besides that of 2nd P.W. Andu Makinde, all go to strengthen and support the plaintiffs' case and to weaken the case of the defence. The trial Judge after evaluating the evidence came to the conclusion-
"On totality of the evidence, I am satisfied that the plaintiffs have maintained sufficient act of ownership on the land in dispute."
Further, he held-
"On the totality of the evidence the traditional evidence of the plaintiffs seems to me more probable and I prefer it to that of the defendants. In any case, on my consideration of the acts of ownership performed in recent years, I am satisfied that the plaintiffs have shown more acts of ownership over a larger portion of the disputed area and on a preponderance of evidence, I am satisfied that the land in dispute is the property of their family..."
In conclusion, while there is substance in the contention of Chief Oriade, the trial Judge accepted the evidence of 2nd P.W. that he and his father were tenants of the plaintiffs' family is correct but not tenant by virtue of his membership of Odota family. This finding does not detract from the weight and significance of the fact that he, though a member of Odota family, acknowledged that he was tenant of plaintiffs' family and not that of the family of which he was head. By virtue of his status as head of the family, he ought to know whether the farmland belonged to his maternal (Odota) family. In making his finding, the trial Judge did not rely on the evidence of 2nd P.W. alone. In my view, whichever way one looks at his judgment, it is justified and supported by evidence before him. The question is whether at the end, the court below came to a right decision in affirming the judgment of the trial court, notwithstanding the error in its view of the capacity in which 2nd P.W. Andu Makinde held his tenancy. The important feature of the case is that two members of the appellants family 2nd P.W. and 5th P.W., Kolani Akindele, testified against the interest of their family that the land belonged to the plaintiffs family. Besides, the evidence of Asani Dada, 3rd P.W., member of Kole family, who the defendants claim to be their tenant, denied defendants' claim. He testified in favour of plaintiff's family. The same is also true of evidence of P.W.4. The evidence of all to go to discredit the case of the defendants and to lend support for the plaintiffs' case.
Besides, the trial Judge found the traditional evidence of defendants unsatisfactory and inconclusive. He found that the traditional evidence of the plaintiffs seems more probable and preferred it to that of the defendants. The trial Judge was satisfied on his consideration of the acts of ownership performed in recent years and on a preponderance of evidence, that the land in dispute is the property of the plaintiffs' family.
It is not the duty of an appeal court to interfere with the finding of a trial court where such finding is supported by evidence and is reasonable. The duty of an appeal court is to determine whether the trial court correctly decided the issues presented before it. The error committed in this case was that of the appeal court, not that of the trial court regarding the evidence of 2nd P.W. The error does not in my view affect the correctness of the judgment of the trial court and the final decision of the court of appeal.
In the final result, I will dismiss the appeal, save that the order of injunction is restricted to 1st of 4th defendants and members of Itele family. The case of the plaintiffs was that the 5th and 6th defendants and members of their (Odota) family were plaintiffs' tenants, but tenants of Itele family and refused to make an order of forfeiture against them. The trial court in making the order of injunction against the Itele family commented that the order of injunction would equally be binding on the Odota family. The order was postulated on its finding that the Odota family was tenant of a trespasser family, i.e. Itele family. An order of injunction in the context amounts to an order of forfeiture against the Odota family. Uche-Omo, J.C.A., however reversed the finding and held-
"On the evidence before the trial court, the Odota family are tenants of the plaintiffs of Eledi Atala and not the defendants appellants of Itele."
And he finally held that-
In the circumstances therefore I am of the view that the forfeiture would not lie against the Odota family. Had the 5th and 6th defendants been sued and/or defended this action personally, I would have ordered forfeiture of their respective holdings."
The trial court order of the injunction was against the defendants, their servants and/or privies from entering, alienating or doing anything on the land in dispute. The order should have been confined only to the trespassers, that is, the 1st to 4th defendants, who according to the plaintiffs (paragraph 26 of the statement of claim) "since 1962 continued to interfere with the possession occupation and quiet enjoyment of Eledi Atala family land. An order of injunction against the Odota family tantamount to an order of forfeiture against the family.
In the result the appeal is dismissed and the judgment of the courts below are affirmed, save that the order of injunction is only against the 1st to 4th defendants (i.e. the Itele family) their agents, their servants and or persons purporting to claim through them. The respondents are entitled to costs of this appeal which I fix at
Bello, C.J.N. I have had a preview of the judgment just delivered by my learned brother Coker J.S.C. For the reasons stated therein the appeal should be dismissed and it is hereby dismissed. The judgment of the Court of Appeal be affirmed save the order of injunction be limited to 1st to 4th Defendants inclusive their agents, servants and persons claiming through them.
N300.00 costs to the Respondents.
Eso, J.S.C. I have been given the privilege of a preview of the judgment of my learned brother Coker J.S.C. I am in complete agreement that the appeal be dismissed. The High Court of Ogun State (Craig C.J.) made definitive findings of fact which findings are well supported by evidence. As this Court has said several times, it is not the business of a Court of Appeal to embark on an unjustifiable assault on the findings of fact by a Trial Court except there is no evidence in support of such findings or the Trial Court made no use or made a poor use of the opportunity which has been afforded such Court in seeing the witnesses interpreting their demeanour and evaluating their evidence. In this case the Court of Appeal made an error in relation to the evidence of the 2nd Plaintiff Witness, but as my learned brother has rightly said, that error has not affected the conclusion and judgment arrived at by the Trial Court nor does it affect the final decision of the Court of Appeal.
My learned brother has restricted the order of injunction to 1st to 4th defendants and members of S. Itele Family. I am in agreement.
The appeal is dismissed. I abide by all the orders contained in the judgment of my learned brother Coker J.S.C.
Aniagolu, J.S.C. I have had a preview in draft of the judgment just delivered by my learned brother, Coker, J.S.C., and I agree with him that for the reasons stated in the said judgment, which I hereby adopt, this appeal should be, and is hereby, dismissed, with costs to the Respondents hereby fixed at
Uwais, J.S.C. I have had a preview of the judgment read by my learned brother Coker, J.S.C. I entirely agree with the reasons and conclusion therein and have no desire to add anything. Accordingly, I hereby dismiss the appeal and endorse the orders in the said judgment.