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                                                           CHIEF IGONI JONAH AND OTHERS FOR OGBOLOMA TOWN, ODUAL (RESPONDENT)

                                          (1961) All N.L.R. 112


Division: Federal Supreme Court

Date of Judgment: 29th March, 1961

Case Number: FSC 87/1960

Before: Ademola, C.J.F., Brett, Unsworth, F.J.J.


The plaintiffs, whose claim to a declaration of title to certain land was dismissed complained on appeal that the trial Judge did not appraise the evidence adequately, that he considered several issues but made no findings, and that generally he did not take advantage of his seeing and hearing the witnesses. The defendants argued that the Judge was entitled to say that he could not rely on the evidence, and that the whole matter was a question of the facts. But the record of appeal showed that there was ample evidence before the Judge, whose Judgment, however, made it clear that he could not evaluate it and form an opinion, and that he neither made findings on issues before him nor attempted to draw inferences from the facts.


The record showed that the trial Judge had not taken proper advantage of having seen and heard the witnesses, and it was a proper case for an order for a rehearing of the suit.

Appeal allowed: Rehearing ordered.

Cases referred to:-

Watt or Thomas v. Thomas (1947) A.C.484: (1947) 1 All E.R.582; (1947) L.J.R.515; 176 L.T.498; 63 T.L.R.314.

Benmax v. Austin Motor Co. Limited (1955) A.C.370; (1955) 1 All E.R.326; 99 Sol. Jo. 129.

APPEAL from High Court (East)

Douglas for Appellants.

Oputa for Respondents.

The following Judgment was delivered:-

Ademola, C.J.F.:-This is an appeal from the Judgment of Betuel J. dismissing a claim for declaration of title in accordance with native law and custom to a piece of land named by the plaintiffs/appellants as "Edum Agalaga" in Degema division: also for damages for trespass to the said land and an injunction to restrain the defendant/respondent his agents and his servants from further acts of interference on the said land.

In the penultimate paragraph of his Judgment the learned Judge said:-

In the final result, considering the evidence on both sides I find myself unable to declare that the plaintiffs have established their title with that degree of reasonable probability as to enable me to afford them the relief they crave, which of course does not amount to a finding in favour of the defendant's title, since they have not raised it in such a manner, e.g., by way of counterclaim, as to have it thoroughly tested by the court.

Earlier the learned Judge considered evidence of tradition adduced and decided that "it would be unsafe to place any reliance on them." He said he was unable to rely on this traditional evidence. He believed however that the Agalaga family (plaintiff/appellant family), at one time, lived on the larger portion of the land in dispute, and on the whole that they adduced stronger evidence in support of their claim. Dealing with evidence of tenants on the land called by both sides, the learned Judge said he could place no reliance on their evidence "and to some extent they cancel each other out." He then dealt with previous proceedings of the Native Court (exhibit 4) in connection with portion of the land. It was an action between the two contestant families. In that case the plaintiff was ordered by the Native Court to take an oath; on review the oath was shifted on to the defendant. The present first plaintiff/appellant as a member of the defendant family in the case was said in evidence to have taken the oath in accordance with native law and custom. In his Judgment the learned Judge said that the defendants/respondents denied that the oath was taken. He did not however state which side he believed but was content in saying that "this is a hurdle the defendants have difficulty in surmounting."

With regard to possession, the learned Judge said that "as there is evidence on both sides of possession one must look to title, and as acts of ownership on one side are counterbalanced by acts of ownership on the other, sufficient proof of title is lacking."

Counsel for the appellant has attacked this Judgment from every angle, pointing out passages from the evidence of third, fourth and fifth witnesses for the defence who stated they were the defendants' tenants on the land to show they had no knowledge of the land in dispute and that they gave no descriptions or boundaries of the land. Also that the learned Judge having considered several issues in the case, arrived at no findings in respect of them; and that generally the learned Judge did not take advantage of the witnesses before him in his Judgment.

For the respondent, it was argued that it was competent for the Judge to say he was unable to rely on the various evidence put before him; and that the whole matter being question of facts, his Judgment should not be disturbed. Counsel drew our attention to the case of Watt or Thomas v. Thomas (1947) A.C. 484, which was an appeal on facts from the High Court and how far the Appeal Court should disturb findings of facts of the court below. In that case the credibility or reliability of a witness was in dispute, and the decision of the trial Judge on the whole case was based on the reliability of the witness. Three guiding principles were laid down by Lord Thankerton:

1.      Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusions;

2.      The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

3.      The appellate Court, either because the reasons given by the trial Judge are not satisfactory or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and then the matter will then become at large for the appellate Court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.

This statement by Lord Thankerton, has not been doubted, but it has been qualified in the case Benmax v. Austin Motor Co. Limited (1955) A.C. 370; also (1955) All E.R. 326. The headnote of the report reads:-

There is a distinction between the finding of a specific fact and a finding of fact which is really an inference drawn from facts specifically found. In the case of the latter the appellate tribunal will more readily form an independent opinion than in the case of the former which involves the evaluation of the evidence of witnesses, particularly where the finding could be founded on their credibility or bearing.

Turning to the present appeal however, it is clear from the record of appeal that ample evidence was before the learned trial Judge, but it appears clear from his Judgment that he could not evaluate the evidence before him so as to form an opinion on the case as a whole.

Throughout his Judgment the learned Judge avoided making specific findings of facts on issues before him, nor did he make any attempt to draw inferences from facts before him. I am satisfied from the whole record that he has not taken proper advantage of having seen and heard the witnesses in the case, and in my view this is a proper case to be sent back for a rehearing.

I would allow this appeal. Judgment and order as to costs made in the court below will be set aside. The case will be remitted to the court below for a rehearing by another Judge. The appellant is entitled to costs in this Court assessed at 50 guineas The appellant is also entitled to costs in the court below which is to await the fresh hearing and is to be assessed by the trial Judge at the conclusion of the case.

Brett, F.J.:- I concur.

Unsworth, F.J.:- I concur.

Appeal allowed.

Rehearing ordered.