AMEEN & ORS. v. AMAO & ORS (2013)

In The Supreme Court of Nigeria

On Friday, the 22nd day of February, 2013

SC.81/2004

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

Between

1. ALHAJI SADIT AMEEN
2. ZACHEUS OGUNLUDE
3. AJIBADE ADISA
(For And on Behalf of Themselves and the Entire Members of Abogunde Family) –Appellants

AND

1. AMOS AMAO
2. ADIGUN OGUNMOLA
3. LADEJO AJAO
4. MR. OLORUNLOWU OKEWALE
(For and on Behalf of themselves and the Entire Members of Aaje Family) –Respondents

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MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an Appeal by the Appellants against the Judgment of the Court of Appeal sitting in Ibadan made on the 8th day of March, 1994 in which the Judgment of the High Court Ogbomosho was affirmed.The Appellants (as Plaintiffs in the High Court) took out a Writ of Summons against the Defendants/Respondents claiming the following:
1. That prior to the promulgation of the Land Use Decree, the Plaintiffs family had been the original absolute owner under Native Law and Custom of all the vast tracts of land in and around Abogunde homestead (Ahoro Abogunde), part of which the land in dispute, which shall be more properly described and delineated on a survey plan to be filed as soon as possible.
2. That since the entitled promulgation of Land Use Decree, the Plaintiffs are the people entitled to the Statutory Right of Occupancy (to the exclusion of the Defendants) in respect of the land in dispute.
3. That the Plaintiffs are entitled to N5,0000.00 damages for trespass committed by the Defendants on the disputed land, and injunction restraining the Defendants, their servants, agents, privies from committing further trespass on the said land in dispute. The Defendants/Respondents filed a Counter-Claim for.
“A declaration of customary right of occupancy to all that piece or parcel of farm land situate, lying being at Igbonla Baale Ikosie which land is demarcated, described and shown on the Survey plan No.FFO 83/07/86 attached to the Statement of Defence and which land is about 6 kilometers away from Ogbomosho Township.
N10.000.00 (Ten thousand Naira) being general damages for the acts of trespass committed by the Plaintiffs on the said land between 1984 and 1985.
Injunction restraining the Plaintiffs, their agents, servants, privies, workmen, whosoever from committing acts of trespass on the said land.”
The Survey Plan No. OB5197 which the Plaintiffs filed with their pleading was admitted in evidence as Exhibit “A”. The Plaintiffs case was that the area verged “RED” thereon formed part of a large tract of land upon which their ancestors settled many years ago. It was also their case that the large tract of land included granting of portions of the land to Baale Masifa family and Iyalode family. The Plaintiffs claimed that they were in undisturbed and peaceful possession of their said family land until a few years back when the Defendants unlawfully entered thereon and started to lay claim to the same.
The Defendants denied that the Plaintiffs ancestors were the owners of the land verged “RED” on Exhibit “A”. A plan which they filed with “RED” their pleading was admitted in evidence as Exhibit “J”. The area verged on Exhibit A formed only a part of the land verged “RED” on Exhibit “J”. Their case was that their ancestor was the original owner of a tract of land including the area verged “RED” and the area described as Baale Masifa Family land on Exhibit “J”. The Defendants claimed that it was by virtue of a grant from their family that Baale Masifa family came to be in possession of the area described as Baale Masifa Family Land. The Defendants also claimed to have granted other portions of the land to various persons including the Plaintiffs, family.
Both parties adduced evidence in support of their respective pleadings at the end of which the learned trial Judge dismissed the Plaintiffs’ claims and entered judgment in favour of the Defendants on some of the areas claimed to be in dispute. Dissatisfied the Plaintiffs appealed to the Court of Appeal which affirmed the judgment of the trial Court hence this appeal to the Supreme Court.
At the hearing on the 3rd December 2012, learned Counsel for the Appellants adopted their Amended Brief of Arguments settled by Abdulhamid Rabiu Esq, filed on 4/12/10 and deemed filed on 29/2/12.
In the brief were distilled four issues for determination, viz
(i) Whether the order of non-suit was hinged on the provision of Section 36 of the Land Use Act and whether the order made without hearing the parties can be sustained.
(ii) Whether the Appellants were liable on trespass and whether the Respondents proved any act of damages at the trial.
(iii) Whether there was conflict in the evidence of tradition of the parties if no, which of the traditional evidence is more probable.
(iv) Whether the Respondents adduced enough evidence in proving their Counter-Claim and whether the lower Court ought to reappraise the evidence led in this case.
Learned Counsel for the Appellants equally adopted their Reply Brief filed on 6/3/12.
Learned Counsel for the Respondents adopted their Brief of Argument settled by S. A. Mohammed Esq, filed on 23/12/10 and deemed filed on 29/2/12. The Respondents raised a preliminary objection to the competence of Ground 1 in that it failed to disclose any particulars showing the errors complained of, thus falling short of what a Ground of Appeal should entail. He cited the case of Amuda v. Adelodun & Anor. (1994) 21 LRCN 25.
The objector said there could not be an argument in favour of an invalid Ground 1 and so the Issue 2 and its arguments go to no issue and should be struck out.
In reply to this objection, learned Counsel for the Appellants said since the Respondents did not give three days notice to the Appellants as required by the provisions of Order 3 Rule 9 of the Supreme Court Rules 2005 that the objection lacked basis and should be disregarded. He cited Onwuka v Ononuju & Ors (2009) 5 SCNJ 65 at 85;
Robert C. Okafor & ors v A. G. Anambra State & Ors (1999) 7 SCNJ 192 at 201.
Appellants further countered in the alternative that particulars came in where a Ground of Appeal is not explicit and that their Ground one of the Notice of Appeal is self explanatory and intrinsic therein. He cited Shyllon v Judith Asuen (1994) 6 SCNJ (pt.II) 285 at 295;
UBA Ltd & Anor v Achoru (1990) 10 SCNJ 17 at 35;
Iwuoha v. Nigerian Postal Services Ltd & Anor. (2003) 4 SCNJ 258 at 278.
The Ground 1 of the Grounds of Appeal is the basis of the grouse of the Respondents upon which learned Counsel on their

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behalf raised an argument in a preliminary objection. He said there were no particulars anchoring the ground. I shall quote the said Ground 1 and it is as follows:
“The learned Justices of the Court of Appeal erred in law in confirming the trial High Court’s decision when they upheld the Plaintiffs/Appellants submission that the trial High Court was in error to have granted the Defendants/Respondents’ Counter-Claim for trespass and injunction in respect of the area marked blue No.1 on Exhibit “J”.
The learned Counsel for the Appellants going along the reply brief rejected the stance of the Respondents and I see reason not to adopt the arguments of the Appellants in setting aside or rejecting this preliminary objection.
It is now trite law that a preliminary objection can be raised at any point or at any stage of the appeal before judgment. While that is the general rule, it cannot operate without the right of being put on adequate notice given to the appellants and so, Order 2 Rule 9 of the Supreme Court Rules 2005 (as amended) has provided that three days notice must be given to the appellant to enable him know the objection and prepare a proper response to it. This provision is mandatory and cannot be waived and so failure to give the notice or file the preliminary objection with the Appellant being in the know at least three days to the day of hearing the matter of the objection, the failure of the Respondents which has in effect brought about ambushing the Appellants has vitiated the preliminary objection.
See Onwuka v Ononuju & Ors (2009) 5 SCNJ 85;
Robert C. Okafor & Ors. v. A.G. Anambra State & Ors (1999) 7 SCNJ 192 at 201.
That being said, I cannot resist making a small comment on the view of the Respondents on the absence of particulars for the Ground 1. This, assuming the objection was valid. It needs be said that the argument that there are no particulars would render the Ground of Appeal void and of no effect cannot fly for what is needed is that the other party knows precisely what is in contest on appeal. Therefore in this case at hand where the ground earlier quoted has left no room for doubt as to what the dispute is or said differently within the ground are embedded the explanation then the objection cannot hold.
See UBA Ltd & Anor v Achoru (1990)10 SCNJ 17;
Shyllon v Judith Asuen (1994) 6 SCNJ (pt.II) 287 at 295.
As I said earlier, the preliminary objection being incompetently brought is invalid and struck out. This leaves the room pen to enter into the merits of the appeal.
Learned Counsel for the Respondents in their Brief of Arguments said in the event that their preliminary objection is overruled then they would rely on four issues they formulated as follows:
1. Whether the Court of Appeal was right to uphold the decision of the trial Court which found for the Respondents on the basis of their Counter-Claim for damages for trespass and injunction.
2. Whether the Court of Appeal was right in affirming the decision of the trial Court which found for the Respondents on the strength of traditional evidence presented before it without recourse to the principle enunciated in Kojo v. Bonsie & Anor. (1957) 1 WLR 1223 at 226.
3. Whether the Court of Appeal was wrong to have opined that the trial Judge was wrong to have non-suited the Respondents in the circumstances of this case.
4. Whether the Court of Appeal was right to have affirmed that the trial Court properly considered and evaluated the evidence adduced by the parties in this case.
The issues as crafted by the Appellants are apt and I adopt them for use in the determination of this Appeal.
ISSUE ONE
This issue raises the question whether the order of non-suit was hinged on the provisions of Section 36 of the Land Use Act and whether the order made without hearing the parties can be sustained.
Learned Counsel for the Appellants submitted that the trial Judge’s order of non-suit was based on the Respondents’ failure to satisfactorily establish their claims in respect of the other parcels of land and did not emanate from the provisions of Section 36 of the Land Use Act which operates to accord protection or otherwise to the Appellants on the land. That assuming the order of non-suit emanated from the provisions of Section 36, that the effect remains the same in law as the distinction drawn by the lower Court does not relegate the need to hear the parties before the order was made. He said the failure to hear the parties before the order resulted in an error of law which occasioned a miscarriage of justice.
For the Appellants, it was also canvassed that there is reason to reassess the findings of the lower Court and to hold that there was a duty on the trial Judge to invite Counsel on both sides to address him as to the desirability or otherwise of such an order since none of the parties sought for the order and the Court awarding a relief not sought by the parties. He relied on the cases of
Allied Bank of Nigeria Ltd v Jonas Akubueze (1997) 6 SCNJ 116;
Fashanu v Adekoya (1994) 6 SC 83 at 91;
Ojeifo Egbejale v Ebhomenlen Oke & Ors (1996) 5 SCNJ 49 at 65;
Ishola v Ajiboye (1994) 7 – 8 SCNJ (Pt.1) 1 at 38.
Mr. Rabiu further stated that the Court of Appeal was in error when it made a wrong case for the Respondents by holding that the trial Court was wrong to have non-suited in respect of the land claimed by the Defendants on the basis of section 36(2) of the Land Use Act. That the Court below was wrong to have held that the Defendants proved their Counter-Claim on the area they were claiming when there was no Cross-Appeal. This is because where there is no Cross-Appeal, the Court cannot grant what was not prayed for legally and procedurally. He cited
Oro v Falade (1995) 5 SCNJ I0 at25;
Yesufu v Oyetunde (1998) 10 SCNJ 1 at20,
Bamgboye v Olusoga (1996) 4 SCNJ 154 at 165.

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Learned Counsel stated on that this Court should reassess the findings of the lower Court which were not borne out of the evidence nor the non-suit in line with what was before the Court of trial. He relied on Kamalu v Nwankudu (1997) 5 SCNJ 191 at 207.
In response, learned Counsel on behalf of the Respondents said a close examination of the reason for the non-suit by the trial Court will bear out the fact that the order made by the trial Court was predicated on Section 36 of the Land Use Act. That the trial Court accepted the Plaintiffs/Appellants proposition that as customary tenants of the Defendants/Respondents their possession is protected by section 36(2) of the Land Use Act as they have graduated on the strength of the Act, Section 36 (1), (2), (3) and (4). That the basis of non-suit is not by reason of the Respondents’ failure to prove their case over the area but by reason of the Land Use Act. That the action of the Court of Appeal did not amount to setting up a case for the Respondents.
Mr. Mohammed of Counsel went on to say that where an issue is intrinsic to the determination whether an order was properly made, an appellate Court such as the Court of Appeal can properly raise it without the necessity of filing a Ground of Appeal. He cited Iloabuchi v Ebigbo (2000) 7 NWLR (Pt.664) 192 at 225.
In this matter of non-suit order made by the trial Court, I shall firstly restate what that Court did and perhaps to see what informed the pronouncement. That court held thus:
“I cannot grant the declaration sought in respect of other areas within the large area verged red in their plan as the Defendants have admitted (sic) other person’s presence within have graduated to statutory tenure by virtue of section 36(1) (2), (3) and (4) of the Land Use Act.
I will however non-suit the Defendants in respect of 2 other parcels of land within the land verged red on their plan in view of Onoboyede’s submission that the members of the Plaintiffs’ family are protected under Section 36(2) of the Land Use Act as those areas which are now occupied or not occupied by such tenants have not been clearly marked out.”
At the Court of Appeal, that Court took a different posture which the learned Counsel for the Appellants interprets as the appellate Court making out a case for the Respondents which position learned Counsel for the Respondents reject. It is therefore necessary to go back to the record and lift what the Court of Appeal per Mukhtar, JCA (as she then was) did and why I would refer to pages 441, 445, 446 of the Record and quote as follows:
“The Defendants pleaded their title to the land they claimed by traditional history and supported it with evidence. The Plaintiffs pleaded their own traditional history but did not support it with credible traditional evidence. The learned trial Judge accepted the Defendants’ traditional evidence, and found for them, but rejected that of the Plaintiffs, and even found them not to be in possession. I fail to see where there was conflict in the circumstances to warrant recourse to recent years in this circumstance. The evidence adduced by both parties are clear and my view is, that of the Defendants were more credible and deserved that Judgment be given in favour of the Defendants.
The Defendants have in my view satisfied the Court that they were entitled to the land in respect of which judgment was given to them…..I believe the onus placed on the Defendants placed on the Defendants as Plaintiffs in their Counter-Claim had been discharged in accordance with the law and they did not rely on the weakness of the Plaintiffs case.”
From the excerpts of the Court of Appeal’s decision inclusive of its reasoning thereto can be seen that it did not see why it should come to the same conclusion of non-suit which the trial Court did. It does not matter it made no reference to the word “non-suit” per se but was firm in its view that what was before the trial Court and what the appellate Court could glen from the pleadings, evidence and even the findings of the trial Court supported the decision to uphold the Counter-Claim which had been established and the need to award the judgment in the Counter-Claim to the Defendants now Respondents. I see no basis to deviate from what the Court of Appeal found and made a decisive conclusion upon. See Iloabuchi v Ebigbo (2000) 7 NWLR (Pt.664) 192 at 225.
This issue is resolved in favour of the Respondents.
ISSUE TWO
This issue has to do with the liability in trespass and whether the Respondents proved any act of damages at the trial. In answer therefore, learned Counsel for the Appellants held the view that the Respondents since they Counter -Claimed failed to discharge the burden to establish the boundaries of the land by adducing any credible evidence. He cited Salami v Gbodoolu (1997) 4 SCNJ 196 at 209; Aboyeji v. Momoh (1994) 4 SCNJ 302 at 319.
That the evidence of DW1 was full of contradictions and should be discountenanced. Also that it contradicted the evidence of DW2 on the fact of Appellants being boundary neighbours to Respondents.
Going further, learned Counsel for the Appellants stated that from the Counter-Claim of the Respondents that damages for trespass were made on behalf of Aaje Ikose family and not on behalf of individual members of the family or particular customary tenants of the family who according to the evidence proffered by the defence were farming on the disputed land. That it is trite law that personality of individual members of the family is different from that of the entire family. That the claim for trespass was therefore incompetent and should be struck out since Respondents had no locus standi to make same. He relied on Anthony Idesoh & Anor v Chief Paul Odia & Ors (1997) 2 SCNJ 175 at 184; Lawani Adesokan v. Ors. v. Sunday Adetunji & Ors. (1994) 6 SCNJ (Pt.1) 123 at 143 & 146.
For the Appellants, it was further contended that the only persons alleged to have been farming on the disputed land could sue for trespass and each of them had to sue in respect of the area he was farming upon. That trespass is actionable at the suit of the person in possession of land and the reversioner may only sue where the trespass is of a nature which has caused a permanent injury or damage to the reversion. He cited many judicial authorities such as
Shittu v. Egbemi & Ors (1996) 7 SCNJ 43;
Olowolagba & Ors v Bakare (1998) 3 SCNJ 75 at 81 – 82;
Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63 at 73 -78;
Amori v. Akande (1975) 2 WSCA 143;
Graham v. Esumai (1984) 11 SC 123 at 137:
Ekwere & Ors v. Iyegbu (1972) 6 SC 116

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Ehoyah & Ors v. Vincent Ikhalu (1995) 7 SCNJ 122 at 136.
Learned Counsel for the Appellants said they were able to establish exclusive possession against the Respondents either as tenants as claimed by the Respondents or owners as claimed by the Appellants. That in proving their possession, they also established a case of trespass and damages against the Respondents through the evidence of PW4, PW5, 1st Plaintiff and PW8 and PW9.
That the two Courts below went outside what was before them to award damages for trespass and injunction. He said the exhibit H (plan used in the proceedings in HOY/15A/73 and Exhibit B. Also Exhibit C which was the record of criminal proceedings against members of the Respondents family were there for proper inference to be drawn but the two Courts below failed to do so. He cited
Runsewe v Odutola (1996) 3 SCNJ 33 at 45;
Ojeifo Egbejale v Ebhomenlen Oke & Ors (1996) 5 SCNJ 49 at 65;
Umesie v Hyde Onuaguluchi (1995) 12 SCNJ 120 at 134.
Learned Counsel for the Respondents said before dismissing the Appellants’ case and awarding judgment to the Respondents in respect of their Counter-Claim, damages for trespass and injunction, the trial Court made findings which the Court of Appeal agreed with. That these findings should be upheld there being nothing perverse to warrant a disturbance by this Court. He cited Ojibah v. Ojibah (1991) 6 SCNJ 156 at 169; Ogoala v. The State (1991) 3 SCNJ 61 at 72-3.
For the Respondents, it was contended that the boundaries of the land were established by evidence well covered in the pleadings. He cited MCC Ltd v Azubike (1990) 5 SCNJ 76; Finnih v. Imade (1992) 1 SCNJ 87 at 107.
He further submitted that where a suit as in this case is instituted in a representative capacity both the named and unnamed members of the group or family or community are parties to the suit. He referred to
Okonji v Makanma (1999) 4 NWLR (pt.114) 161 at 166;
Adediran & Ors v Interland Transport Ltd (1991) 12 SCNJ 27.
Learned Counsel for the Respondents said that proof of title supercedes possession and so where in an action for trespass, title was put in issue, the decisive question is who proves better title. He cited Adesanya v Otuewu (1993) 1 SCNJ 77 at 98 and 113.
Also that once the radical title pleaded fails, it will be unnecessary to consider the acts of possession derivable from such title. That such act as claimed by the Appellants become acts of trespass which make them liable for trespass as found by the two lower Courts. He cited Nkano v Nkano (1997) 50 LRCN 1 at 1127.
Learned Counsel for the Respondents stated that the issue of damages for trespass comes in once trespass is proved since the law presumes nominal general damages. He referred to Ehiochim (Nig) Ltd & Ors v Mbakwe (1986) 1 SC 99.
The question raised herein is with respect to the dismissal of the Appellants’ case and the judgment awarded to the Respondents as per their Counter-Claim, damages for trespass and injunction. The trial Court made the following findings and conclusion:
“The picture that emerges in the case in my view, or in the Plaintiffs’ evidence and of the first, fourth, sixth, third and fifth Defendants’ witness is that the Defendants could be said to own the land they claim to belong to them, the land verged red in Exhibit “J” originally if this case can be looked through clear spectacles and particularly in the light of Sections 45 and 145 of the Evidence Act and the traditional evidence given in this case, the case of the Defendants appears to me to be more probable than that of the Plaintiff in view of the directives in Mogaji & Ors v Odofin & Anor (1978) 3 SC 91 which has been followed by our Supreme Court in many other cases. I will also refer to Adedegudu v Ajenufuja (1913) 1 ALL NLR 109 and Idundun v Okumagba (1976) 1 NMLR 200 at 210 to 211.
It follows I should grant to the defendants declaration sought to the areas numbered 1 and 2 clearly verged blue in Exhibit of the Survey Plan No.FF083/04/86 of the Defendants.
As regards damages, it will however follow in respect of where an act of trespass has been proved. That would be in respect of the areas marked blue No. 2 on the Defendants’ plan granted recently erroneously to the ninth Plaintiffs witness and his friends by the Plaintiff I will award N150.00 as damages in favour of the Defendants against the Plaintiff who took the ninth witness to the areas.”
The Court of Appeal affirmed those findings of fact and said the Plaintiffs ancestors were granted the lands by the Defendants/Counter-Claimants ancestors on payment of customary tributes thus making the Plaintiffs customary tenants and the Plaintiffs later stopped paying those tributes which led to the disagreement and the conflict which has gotten to where we are now.
These concurrent findings have clearly stemmed from the pleadings and evidence led both in the Plaintiffs’ claims and the Defendants Counter-Claim and there is nothing from where this present Court can deviate from those findings which have been properly made. See Ojibah v. Ojibah (1991) 6 SCNJ 156 at 169.
The submission of the Appellants that since they were in physical possession, the verdict of trespass against them by the two Courts below is wrong. In answer, there is need to restate that there are two types of possession, viz:
(i) Actual physical possession
(ii) Possession imputed by law which is derived from title.
As a follow up, the matter of possession takes a back seat where title has been proved to reside in the other party. It is in the light of that, that once in an action of trespass such as the current one and title is put in issue the decisive question that arises is who has proved the better title. Then when the claiming party fails in his bid to prove title or radical title as called, then it is not necessary to consider the act of possession that stems from such a failed title claim. The natural flow of events would be that the act of the appellants as in the case at hand translates automatically as trespass and so the presumptions of the law on nominal general damages are in operation. I place reliance on

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Adesanya v Otuewu & Ors (1993) 1 SCNJ 77 at 113 & 114;
Nkano v Nkano (1997) 50 LRCN 1 at 1127:
Ehochin (Nig) Ltd & Ors v Mbakwe (1986) I SC 99.
Again this Issue 2 is resolved in favour of the Respondents and against the Appellants.
ISSUES THREE AND FOUR
The questions herein raised are in respect of whether there was conflict in the evidence of tradition of the parties and if not which version is more probable and the matter of evaluation of the evidence adduced.
Learned Counsel for the Appellant submitted that the apparent contradictions in the evidence of parties giving rise to the need to resolve same under Sections 46 and 146 of the Evidence Act. That resolution in line with the principles in Dopemu Taiwo Adeyemi v Akinbode Okobi (1997) 6 SCNJ 67 at 77; Kojo v Bosie (1957) 1 WLR 1226; Ukwueze v Atasie (2000) 6 SCNJ 209 at 218.
Mr. Rabiu of Counsel further stated that the Appellants’ evidence of tradition was the more probable on the ground that on preponderance of evidence Appellants discharged the onus of proof by pleading the extent and boundaries of the land in dispute as per the survey plan, Exhibit A, with their traditional history with numerous acts of ownership spanning over 150 years without challenge. Also evidenced in Exhibit “A” being the houses and farms shown therein.
That the presence of the Respondents on the land was consequent upon an act of trespass and possession cannot be founded on that trespass. He referred to Shittu v. Egbeyemi (supra) at 52.
Also, that a trespasser cannot acquire possession forcefully. He cited Odumade v Khalil & Dobbo Transport Ltd (2000) 7 SCNJ 149 at 158; Shittu v. Egbeyemi (supra)
In response, learned Counsel for the Respondents stated that the trial Court, it is that had the benefit of seeing the witnesses and ascribing credibility to them, such finding on credibility will not be set aside unless against the logical drift of evidence or against the weight of probabilities which is not the case here. That the appellate Court is only concerned with whether the decision is right or wrong and not necessarily whether the reasons given for the decision was right or wrong. He cited Sugh v The State (1988) 5 SCNJ 88 at 67;
Dickson v. The State (1988) 7 SCNJ 76 at84;
Duruji v. Azie (1992) 7 NWLR (Pt.156) 668 at 707.
Learned Counsel had contended in respect of the appraisal of evidence that if the Court of Appeal had carried out that duty of appraisal of the entire evidence adduced by the parties in this case they would have come to a different conclusion. That it was the failure of proper evaluation of evidence by the trial Court which sent it on a wrong course. He cited Kuti v Balogun (1978) 1 SC 53; Akibu v. Opaleye (1974) 11 SC 1189; Shell PDC Ltd v. Jacob Abedi (1974) 1 SC 1 at 23 & 40.
The Respondents’ reaction was that proper evaluation of evidence was done by the two Courts below.
The questions herein raised have been effectively answered by the resolutions of the questions in issues 1 and 2. However, to fulfill the necessary duty incumbent on this Court to ensure that no gaps are left unfilled, I would make a few remarks. The stand of the Appellants is that the Court of Appeal’s finding on the basis that the reference by the trial Court to Sections 45 and 145 of the Evidence Act was indicative of a conflict in the traditional evidence of the parties. That allusion is outside the contents of the record as the trial Court which had the opportunity and the benefit of seeing and hearing the witnesses found the witnesses of the Respondents more credible and preferred their evidence to that of the Appellants thereby balancing the conflict between the parties resolving them in favour of the Respondents. The Court of Appeal reviewing all the trial Court did agreed with the same conclusion that the Appellants as Plaintiffs had not established title in the land in dispute but rather the Respondents’ position was the correct one and while the Plaintiffs claim failed, the Counter-Claim by the Defendants/Respondents succeeded. It was in the environment of that failure of the Appellants that the two Courts discountenanced their claim of possession since the possession arose from a radical title that did not withstand the acid test title. See Sugh v The State (1988) 5 SCNJ 88 at 67 – 8; Duruji v Azie (1992) 7 NWLR (Pt.156) 668 at 707.
There being nothing perverse in those findings of the two Courts below or a miscarriage of justice or a wrong finding outside the record, I cannot disturb those findings but rather accept them as being in order.
These two Issues 3 and 4 are also resolved in favour of the Respondents. With all questions raised having been determined for the Respondents, I have no difficulty in holding that this Appeal lacks merit and is to be dismissed. I dismiss the Appeal and affirm the Judgment of the Court of Appeal which in turn affirmed the Judgment of the trial Court except for the matter of the non-suit order.
I award N100,000 costs to the Respondents to be paid by the Appellants.IBRAHIM TANKO MUHAMMAD, J.S.C.: I read the Judgment just delivered by my learned brother, Odili J.S.C. I agree with her conclusion that the Appeal lacks merit and it should be dismissed. I hereby dismiss the Appeal. I abide by consequential orders made in the lead Judgment.

JOHN AFOLABI FABIYI, J.S.C.: I had the advantage of reading in draft the Judgment just delivered by my learned brother – Peter-Odili, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the Appeal lacks merit and should be dismissed.
My learned brother ‘covered the field.’ I have nothing useful to add. I join in dismissing the Appeal.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead Judgment just delivered by my learned brother, Peter-Odili, JSC. I agree with the reasoning and conclusion that the Appeal is unmeritorious. It is liable to dismissal and I also dismiss same and abide by the consequential order in the lead Judgment including that on costs.

KUMAI BAYANG AKAAHS, J.S.C.: I had a preview of the Judgment of my learned brother, Peter-Odili JSC. I agree that the Appeal lacks merit and it is hereby dismissed. I abide by the consequential order made on costs.

Appeal dismissed.

Appearances

Abdulhamid M. Rabiu, Gani Ahmed. For Appellant

AND

I. B. Odigie, S. Mohammed. For Respondent

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