ADEPOJU AYANWALE & 3 ORS (FOR THEMSELVES AND ON BEHALF OF SABAGINMA RULING HOUSE FAMILY OF IGANNA) (APPELLANT)

                                                                                v.

BABALOLA ATANDA & ANOR (FOR AND ON BEHALF OF APODUN FAMILY) (RESPONDENT)

(1988) All N.L.R. 24

Division: Supreme Court Of Nigeria

Date of Judgment: 15th January, 1988

Case Number: (SC. 198/1985)

Before: Obaseki, Uwais, Oputa, Wali, Craig, JJS.C.

The Respondents brought a representative action in the High Court, Ibadan against the appellants claiming a declaration of title and possession of a piece of land shown on a plan which they filed, damages for trespass and an injunction restraining the appellants, their servants, agents and privies from committing any further acts of trespass on the said land.

Both sides called witnesses and tendered survey plans. Pleadings were filed and exchanged. The plaintiffs (herein respondents) statement of claim was filed out of time and objection was not raised in regard to this at the trial Court by the defendants (herein the appellants) who proceeded to file and serve their statement of defence and allowed the case to proceed to hearing until judgement was delivered.

In the judgement, the trial judge referred to the contents of two affidavits (Exhibit 6 and 6(1)) which he found in the case file but which were not tendered or admitted in the course of hearing and utilized them in making his findings of fact. Although there were other pieces of evidence on which he placed reliance. Both sides gave traditional evidence in regard to how they claimed that title devolved on them.

The trial judge found for the plaintiffs and granted the declaration against all the defendants but found that trespass was proved against the first four defendants only and awarded damages against those defendants.

Aggrieved by the findings the defendants appealed to the Court of Appeal which in a unanimous decision affirmed the findings and orders of the trial Court and dismissed the appeal. Being dissatisfied by the decision of the Court of Appeal, the 2nd, 3rd, 4th, 5th and 6th defendants further appealed to the Supreme Court.

HELD:-

(1)     The two affidavits (Exhibit 6 and 6(1)) constitute inadmissible evidence which went into no issue because the legal position which has been stated on numerous occasion is that evidence given in a previous case is not admissible by Court trying a later case except where section 34(1) of the Evidence Act is applicable. The best use that could be made of such evidence is for cross-examination as to credit of such a person or called to testify in the later case.

(2)     It is the duty of appeal court to exclude inadmissible evidence wrongly admitted and deal with the case on the remaining legally admitted evidence.

(3)     Excluding these two Exhibits and all reference to them on the record, there is still in my view, admissible evidence as found by the Court of Appeal on which the judgement of the trial court can be sustained.

(4)     Where a party has consented to a wrong procedure, at the trial and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was followed.

(5)     Where a statement of claim was filed out of time, served on the defendant as such and the latter filed a statement of defence without protest and allowed the case to proceed to trial and final determination, it would be too late for such defendant to complain on appeal against the statement of claim.

(6)     It is now settled law for the determination of appeal on issue of facts that it is not the business of an appellate court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless such findings are perverse.

Appeal Dismissed.

A.I. Adeyemi Esq

(With him S.A. Akinwunmi Esq) for the Appellants

Mr Aiyedun for the Respondents

Cases referred to:-

(1)     Abinabina v. Enyimade (1953) A.C. 207 at 215-216

(2)     Akihwu v. The Principal Lotteries Officer MidWestern State & anor (1972) 1 All N.L.R. 299

(3)     Akinyele & anor v. Eyilila & Ors (1968) NMLR 92

(4)     Andrew Morade v. Cecilia Ishikhu-emen (1978) 2. S.C. 87

(5)     Babatunde Jemilade v. Lawani Aborishade (1960) 5 F.S.C. 167

(6)     C.F.A.O. v. Onitsha Industries Ltd (1932) 11 NLR 102

(7)     Colony Development Board v. Kamson & Ors (1955) 21 N.L.R.

(8)     Da Coster v. Ikomi (1968) 1 All N.L.R. 394 at 398

(9)     Ekpo v. Ita 11 N.L.R. 68 at page 69

(10) Higgs v. Nassau Vian Ltd (1975) A.C. 464 at 474.

(11) Momudu Ajala v. Samuel Awodele & anor (1971) 1 N.M.L.R. 127

(12) Motunde Shonekan v. Gladys Ayodele Smith (1964) 1 All N.L.R. 168.

(13) Oduaran V John Asara (1978) 1 All N.L.R. 137/143

(14) Owoyun V Omotosho (1961) 1 All N.L.R. 304

(15) Samson Awoyale V Joshua O. Ogunbiyi (1986) 4 S.C. 98

(16) Victor Woluchim & ors V Chief Gudi & ors (1981) 5 S.C. 291

(17) V.M. Okwechime V Philip Igbinadolor (1964) N.M.L.R. 132

Statute referred to:-

(1)     Evidence Act.

Wali, JSC. The Writ of Summons by which the action in this case was initiated, was issued out in the Ibadan Judicial Division of the High court of Justice, Western Nigeria on 23rd August, 1965. When Oyo State was created in 1976, the action was transferred to the Oyo Judicial Division of the High Court of Justice, Oyo State. The action was commenced by Babalola Atanda for and on behalf of Apodun Family against

(1)     Ajeigbe Maiyegun and

(2)     Adepoju Ojediran

asking for the following declaration and relief:-

"1.     Declaration of title, ownership and possession of all that piece or parcel of land situate, lying and being at Igangan Oyo Area, bounded on the 1st side by Shabiganna's farmland, on the second side by Balakia's farmland, on the third side by Shaiganna's farmland and on the fourth side by Ogundoyin's farmland.

2.      £200.00 (TWO HUNDRED POUNDS STERLING) damages for trespass committed by the defendants on the said land in October, 1964.

3.      An Injunction restraining the Defendants, their servants, agents and privies from committing any further acts of trespass on the said land."

Later and through subsequent applications Ojediran Janduku, Ogundoyin Abewon, Samuel Oyelami Olawoyin and Matthew Olaleye Idowu were joined as the 3rd, 4th, 5th and 6th defendants respectively. The plaintiff amended his writ by replacing Adepoju Ojediran with Adepoju Ayanwale as the 2nd defendant. On the death of Ogundoyin Abewon he was replaced by Adegoke Ogundoyin. Pleadings were ordered, filed and exchanged. Plans showing the areas in dispute were filed. The 4th defendant also filed and exchanged. Plans showing the areas in dispute were filed. The 4th defendant also filed a counter-claim against the plaintiff for a declaration of title in respect of the parcel of land in dispute.

The parties called witnesses to prove the averments in their respective pleadings in the course of which survey plans were tendered and admitted. On the conclusion of the hearing, the learned trial Judge, Adenekan Ademola, J. (as he then was) reviewed the evidence adduced and made the following findings in the plaintiff's favour-

"I now come to the case of plaintiff. He claims the land in Exhibit 1 which he says was a grant made to his ancestors by the Alaafin Adelu. He was able to call the evidence of a descendant of Adelu in support of his claim of this grant to his fore-fathers. I accept the traditional history of how his ancestors came to be on the land and the vicissitudes suffered by his family as a result of both the Dahomean war and the Fulani War. I accept that he was tenant on the land and in this respect I believe the evidence of Bello Ladipo 4 p.w. who is a tenant of his. The presence of this man on the land is not even denied by the second defendant who has seen him on the land in dispute. As I have said earlier on, I hold that the second and third defendants are his tenants, and in saying this, I believe the evidence of the plaintiff that the second and third defendants were his tenants, and that they have put tenants on the land in dispute and this they have been helped by the first defendant. This little piece of evidence is confirmed by 3 d.w., Lasisi Karimu who is a tenant of the first defendant. I come to this conclusion that Inamere was founded by the ancestors of the plaintiff and that the first plaintiff is Baale of it now. With all these findings which I have made in favour of the plaintiff, I would therefore award him the declaration sought in his writ of summons and injunction against all the defendants. On the issue of trespass, I find against the first, second, third and fourth defendants but dispute such claim against the fifth and the sixth defendants. The first, second, third, fourth defendants to pay the sum of fifty Naira each to the plaintiff as damages for trespass."

Aggrieved by the findings (supra) the defendants appealed to the Court of Appeal. Each of the 1st and the 4th defendants filed a separate Notice and Grounds of Appeal, while the 2nd, 3rd, 5th and 6th defendants filed a joint Notice and Grounds of Appeal. Briefs of arguments were filed and exchanged in the Court of Appeal and further oral submissions were made by Counsel representing the parties. And after a careful consideration of the arguments for and against the judgment appealed against, the Court of Appeal, in a unanimous decision affirmed the findings and orders of the trial court and dismissed the appeal with the order that the 3rd, 5th and 6th Appellants/Defendants shall pay costs of N50.00 to the Respondent/Plaintiff, while the 4th respondent/defendant shall pay N75.00 to the respondent/plaintiff by way of costs.

With the leave of the Court of Appeal granted on 10th December 1984, the 2nd, 3rd, 5th and 6th Defendants appealed to the Supreme Court and filed 4 grounds of law or mixed law and facts.

The facts of the case as contained in the proceedings may be put down thus-

The plaintiffs brought an action for themselves and as representatives of Apodun Family. The defendants were sued in their personal capacity. Before the trial court, the 1st, 2nd, 3rd and 4th defendants entered appearance and defended the suit in their personal capacity while the 5th, and 6th defendants defended it for themselves and on behalf of Sobiganna Ruling House Family of Iganna.

In the amended statement of claim filed by the plaintiffs (see pages 9 - 11 of the record) they traced the title to the land in dispute to one FADEYI-EWI their ancestor, who they claimed acquired the land under native law and custom over 150 years ago, with the consent and permission of Alafin of Oyo. They claimed that FADEYI-EWI settled on the land and established a town he named OLOBATALA-INAMERE on part thereof, to which he became the first Bale; while using the remaining part for farming and hunting purposes. The whole area being claimed by the plaintiff, including the land in dispute is shown in Exhibit 1, the plaintiffs' survey plan. As a result of the Dahomean War in the 19th Century, Olobatala-Inamere was run over and destroyed by the Dahomeans, killing Fadeyi-Ewi, its first Bale. His surviving family, made up of his brother LALEYE ADIGUN, and his son KIARIBE fled and established another town they named APODUN. They settled there and Laleye Adigun became the Bale. They lived there for a long time until they were invaded by the Fulanis. When Apodun was destroyed and Bale Adigun was killed, the surviving family fled to MEKO where they lived for about 5 years before they were again invaded by the Dahomeans and rooted out. Ogundare, Akanni, Kiaribe, and Akinlotan, all sons of Fadeyi-Ewi fled the town. Ogundare, Akanni and Kiaribe returned to Iganna while Akinlotan went to Igangan. With the permission of the Alafin Adeyemi the then reigning Alafin, of Oyo, they re-occupied their land as depicted in Exhibit 1 and resumed farming and hunting. Ogundare became the head of the family and was succeeded on his death by his brother Kiaribe. When Kiaribe died, the present 1st plaintiff, Babalola Atanda succeeded him as head of the family. At the time the action was instituted Babalola Atanda was still the head of the family and living at Apodun, Later the government acquired part of the plaintiffs' family land and converted it into forest reserve, leaving them with Olobatala-Inamere. The plaintiffs described in their amended statement of claim the whole family land, (the land in dispute inclusive) as shown on Exhibit 1, as follows:-

"On the North it has common boundary with Bale Ikia and Iganna people's land, on the East, with Sabiganna people's land, on the south-east with Onisherin people's land, on the South with forest reserve and on the West and Northwest with forest reserve and Tudi people's land."

For the purpose of this appeal both the plaintiffs and the 2nd, 3rd, 4th, 5th and 6th defendants will henceforth be referred to as Respondents and Appellants respectively.

In the brief of arguments filed by the Appellants, Counsel raised several issues for determination. In his oral argument before this Court, he summarised them into three issues-

1.      Reliance of the trial court on inadmissible evidence of affidavits discovered by the learned trial Judge suo motu after the case was concluded and adjourned for judgment.

2.      The pleadings filed out of time but relied upon by the trial court.

3.      Whether the judgment of the trial court as affirmed by the Court of Appeal is sustainable by the evidence.

The issue raised under head (1) covers grounds 2. It was the learned Counsel submission that the trial court was wrong to rely heavily on the two affidavits (Exhibit 6 and 6(1)) discovered in the case file suo motu by the judge after adjourning proceedings for judgment.

I am of the view that the judgment of the Court of Appeal has adequately dealt with this issue when it concluded thus-

"Admittedly, the trial court heavily relied on them (the two affidavits) to arrive at such finding and they therefore constitute inadmissible evidence which went to no issue-see Oduaran v. John Asarah (1978) 1 All NLR 137/143."

(Words in brackets supplied by me).

The legal position, which has been stated on numerous occasions is that evidence given in a previous case is not admissible by the court trying a later case except where section 34(1) of the Evidence Act is applicable. The best use that could be made of such evidence is for cross-examination as to credit of such a person or persons called to testify in the later case. See MOTUNDE SHONEKAN v. GLADYS AYODELE SMITH (1964) 1 ALL N.L.R. 168; MOMODU AJALA v. SAMUEL AWODELE And Another (1971)1 N.M.L.R. 127; ANDREW MORADE v. CECILIA ISIKHUEMEN (1978)2 S.C.87 and BABATUNDE JEMI ALADE v. LAWANI ABORISHADE (1960)5 F.S.C. 167. It is the duty of the appeal court to exclude inadmissible evidence wrongly admitted and deal with the case on the remaining legally admitted evidence. See OWOYUN v. OMOTOSHO (1961)1 ALL N.L.R. 304.

The next issue to examine is whether the remaining evidence can sustain the trial court judgment as concluded by the Court of Appeal. This covers grounds 3 and 5 of the Grounds of Appeal which deal with facts.

It was the contention of learned Counsel for the appellants that the trial court was wrong in preferring the traditional evidence of the respondents to that of the 5th and 6th Appellants without giving cogent reasons for that. He submitted that the only reason given by the trial judge for rejecting the traditional evidence of 5th and 6th appellants was his reliance on Exhibits 6 and 6(1)-the wrongly admitted affidavits sworn to by the 2nd and 3rd appellants in this case when it was then bearing suit No. 1/169/65. He further submitted that the finding of the learned trial Judge is based on speculation, such as the failure of the 5th and 6th appellants to call the present 2nd and 3rd appellants to testify on their behalf in suit No.HOY/24/69.

Dealing with the case for the 2nd and 3rd appellants, it is clear from their joint statement of defence that they acknowledged the overlordship of Sabiganna family. Their case would therefore stand or fall with that of the 5th and 6th appellants. The 2nd appellant gave evidence as 14 D.W. for the 5th and 6th appellants in which he further admitted that his father was a farmer at ELEKOKAN with the permission of Sabiganna Lawoyin, paying tribute to him in the form of yam and yam flour, and on the demise of his father he continued to farm on the land paying the same tribute to the same family of Sabiganna.

As for the 4th appellant in his evidence-in-chief, he admitted that his ancestors owned the land in Exhibit 4 which, is at ABIDI OKI. He gave his traditional evidence as regards his claim to the ownership of the land as follows-

"The land is at Abidi-Oki. Our fathers settled on it. The names of my forefathers who did so were Olaterun and Olasomi. Our forefathers founded Abidi-Oki. Olaterun died and after him the land passed on to Oderonbi; after him Opeagbe and after him; Ajadi and after him; Abewon. One Adegbenjo also used it. Ajadi is dead. Ajadi begat Abewon; Abewon is dead but got judgment over plaintiff Exhibit 5 and Exhibit 5(1) I succeeded Abewon on the land. She died 4 years ago after the action has begun."

No evidence was called by the 4th appellant to prove his traditional claim to the land. PW4 the surveyor to the 4th Appellant and DW2, through whom Exhibit 4 (the survey plan of the area being claimed by the 4th appellant) was tendered, testified that

"1st Defendant showed me round the land; Exhibit 1 which I now see is shown on Exhibit 3. I showed Ofiki river on the South-eastern part of Exhibit 3. There is nothing similar in Exhibit 1. I saw the Abidi-Oki village when I went on the land. It is not on the land in dispute. It is 4 miles from it. On the Western side of Exhibit 3 is Ikia family land; but on the North is Exhibit 1. The area claimed by the 1st defendant is enclosed in the area shown by Exhibit 1 and large than it. I found a big rock at a village called INAMERE. I showed Olukan Yabiye homestead in the Exhibit 3. I also showed Jolako market and also Elekokan market in Exhibit 3."

Under cross-examination by 4th appellant, the same witness further testified thus

"I see plan "A" shown to me. 4th defendant instructed me to make it. Tendered Exhibit 4; no objection; Exhibit 1 forms part of Exhibit 4; Exhibit 4 is larger than Exhibit 1. Exhibit 4 forms part of Exhibit 3. I showed Adegoke village in Exhibit 3. It is also shown on Exhibit 4. Olukan Yabiye is on the North of Exhibit 4; I showed Igbo Aro Lake. It is not written as such on Exhibit 3, but it is shown. I showed Ibudo Igbe on Exhibit 4, but the same place is now called Inamere as I have shown on Exhibit 3. The same place is called Olobatala shrine in Exhibit 1.

Both DW7 and DW8 confirmed that the land belonging to the 4th appellant is Abidi-Oki. The 9 PW who did not specifically call the 4th appellant's land "Abidi-Oki" but nonetheless testified that

"the land starts from OMO-OLANA to IGBU-ABO",

Showing that Igbu-Abo which PW2 showed in Exhibit 4 is also the same land shown in Exhibits 3 and 1 as Inamere and Olobatala shrine respectively. This evidence goes to support the finding of the learned trial Judge as follows-

"The story of his ancestors being the first settlers on the land in dispute is not convincing. There is no evidence apart from his own to confirm this story of the early settlement. None of his boundary men testified to this point. Certainly first defendant did not. Fourth defendant showed his holding on this land in dispute as Adegoke village but his witness who is also his aunt, Oguntola Akande said that this was a new settlement that came into existence since this case. Fourth defendant's contention that Abiditoki is on the land in dispute is not supported by his witness Oguntola Akande neither does the Surveyor he employed Mr Bamgbose in his evidence support this claim of the defendant about Abidioki. I accept the evidence of the seventh D.W., that is, Oguntola Akande that it was when a considerable part of the village in Abidioki was taken as a Government Forest Reserve that she and the fourth defendant moved into Igbonla and founded a village which they called Abule Marin where they lived. I have already come to the conclusion that second and third defendants are not the tenants of the fourth defendant. The only tenant he was able to bring forward testified that he had farmed at Abidioki which I have already said is outside the present land in dispute. It is significant that the defendant did not call the Baale of Abidioki who he said to be their relation throughout the hearing of this case, as I think his evidence might have been able to throw some light on this case. The fourth defendant had made so much of the judgment in Exhibit 5 and Exhibit 5(1) and relies on them to establish the ownership of the area he claims against the plaintiffs. I do not think the judgment contained in these Exhibits could be of any help to anybody as a look at the Exhibits reveals that the Court came to no conclusion as to the claim before it, and moreover, reading it as I have done, it would appear that the land which might have been in dispute was clearly outside the present land in dispute. Again, it would appear that the land the fourth Defendant is claiming in Exhibit 4 is certainly within the land which was the subject matter of Suit HOY/24/69 as comprised in Exhibit 2 and the evidence of Mr Bamgbose a Surveyor brings this out quite clearly."

Both the 5th and the 6th Appellants jointly claimed the land in dispute as belonging to Sabiganna family, to which they belong. Apart from 5th appellant who gave evidence as 10 D.W., no other witness was called to establish the traditional claim to the land in dispute by Sabiganna Family. PW1 who gave evidence for the respondents was also the Surveyor for 5th and 6th Appellants in Suit HOY/24/69 and drew out Exhibit 2. He also made Exhibit 1 for the respondents. Under cross-examination by learned Counsel for the 5th and 6th appellants he testified that-

"I remember in 1969, the Sabiganna family instructed me to do a survey. It was in respect of Sabiganna family land in Suit HOY/24/69 between Adegoke Adigun (Sabiganna of Iganna) and Ors. v. S. Maiyegun & another. I made a plan and I produce it; Exhibit 2. The land in Exhibit 1 is near Exhibit 2. The land in Exhibit 1 is on lower Western side of Exhibit 2 and has common boundary more or less with the land in Exhibit 2. The Eastern side of Exhibit 1 is said to be Sabiganna and Onisherin land. What is now the land in dispute as depicted by Exhibit 1 is on the Western (lower) side of Exhibit 2 which was shown to be Inamere peoples' land in Exhibit 2."

This piece of evidence goes to show that the land in dispute as shown in Exhibit 2-the plan tendered by the 5th and 6th appellants through PW2, is not part of Sabiganna Family land but adjacent to it only.

Also in his evidence in-chief the 5th appellant testified that both the 2nd and 3rd appellants are farmers at Elekokan within Igbo Nla.... "Ibudo Igbe is the same as Inamere where all the hunters go to hunt. Ibudo Igbe is within Igbo Nla. Apart from 2nd and 3rd defendants there are other tenants on the land. They are Ola, Alade, Adeshola, Okeshipe."

None of the tenants named supra were called by the 5th and 6th appellants to support their case. The only witnesses called by them as tenants (DW's 11, 12 and 13) gave evidence that the land on which they are tenants is at Igbo Nla and it has been shown in Exhibit 2 not to be part of Sabiganna family land, but belonging to Inamere people.

The pieces of evidence referred to supra also goes to support the finding of the learned trial Judge that the land in dispute is not part of the 5th and 6th appellants' family land. He said-

"I shall examine the claim of the fifth and sixth defendants. While their traditional history may be correct, it is my view that that traditional history does not relate, and could not justify their ownership of the land in dispute. I have already come to the conclusion that second third defendants are not their tenants on the land in dispute. I accept and find that the fifth and sixth defendants and the Sabiganna are related to the plaintiffs. I also come to the conclusion that while the Sabiganna are related to the plaintiffs. I also come to the conclusion that while the Sabiganna and the first defendant were litigating in suit HOY/24/69, the Sabiganna did not claim the present land in dispute as Exhibit 2 readily shows. In fact, in Exhibit 2 the Sabiganna expressly stated that the land to the western side of what he is claiming in suit HOY/24/69 which according to the evidence of Mr Alli plaintiff's Surveyor is the present land in dispute conceded that that land belongs to Inamere people."

The observation made by the learned trial Judge that if the 2nd and 3rd appellants were tenants of Sabiganna family on the land in dispute, they ought to have been called as witnesses in Suit HOY/24/69, cannot be faulted.

I now come to the case of the respondents. There is, I feel no need to go again over the issue of whether Exhibits 6 and 6(1) were wrongly received in evidence by the trial court, as this has already been dealt with by the Court of Appeal in the part of its judgment already referred to by me and with which I have agreed. Excluding these Exhibits and all reference to them from the record, there is still, in my view, admissible evidence as found by the Court of Appeal on which the judgment of the trial court can be sustained. I shall here endeavour to enumerate such evidence.

The first Respondent, as PW2, gave evidence of his family traditional title to the land in dispute and tendered Exhibit 1 in identification of it. He gave evidence of the boundary of the land as follows:-

"We farm on the land and have built houses on the land. Twenty five years ago the government established a forest reserve on Apodun ruins; which belongs to my family and left us Obatala Inamere. We have cocoa on the land also Kola-nuts, oranges. (There is also a shrine (Ogun Agbede) which our family worship on the land. There is also the Obatala shrine on the land and we worship it). Not pleaded. I know Abidi Oki's land. It is a boundary land to the land in dispute. I know Ayanwale Adepoju; he was granted land by my father on this land in dispute to farm upon and also to hunt in the olden days. It was 30 years ago; my father gave land to Ayanwale-2nd defendant. 2nd Defendant paid 10/-. Ishakole then and gives us yam-flour annually until 1961 when the mother of the 4th defendant sued us. I know some Egba farmers to 2nd and 3rd Defendants who apportion our land for the Egbas to farm upon. The farmers paying money to them; which they share with 1st Defendant. Besides 2nd and 3rd Defendants were other tenants. 2nd and 3rd Defendants used to collect timber from sawyers, who fell timber on our land. Nobody has disturbed us on the land before this case. We did not authorise our tenants to sell out land. I know 4th Defendant; he has land near us which has been taken by government for Forest Reserve."

The identity of the land in dispute is in line with the evidence given by PW1 when he testified to explain Exhibits 1 and 2 both of which he drew.

PW3, the grandson of Alafin Adeyemi Alowolodu gave evidence in support of the grant of the land in dispute to the respondents family. He said-

"The land is at Iganna. The Alafin owns the land and all other lands. The Plaintiff's ancestor came to the Alafin to ask for a grant. The Alafin gave him land. The land granted was at Iganna. It was over 130 years ago. I am a grandson of Alafin Adeyemi Alowolodu. The grantee pays annual tribute. Plaintiff brings tribute and he sometimes sent people before my time in the palace, the tribute was given to one Asumo. I started getting tribute from him about 4 years ago. They bring meat and yam."

PW4 gave evidence as respondents' tenant on the disputed land. He testified thus-"I know the land in dispute which has given rise to this case."

PW5 gave evidence as the respondents' boundaryman, part of which reads:-

"I know the Plaintiffs and Defendants. I know the land in dispute. My family has land in Iganna. It is the Tudi family and has land near the land in dispute. The Plaintiffs own the land in dispute."

P W6 also a boundaryman to the respondents said in his evidence that-

"I know Plaintiffs and Defendants. I know the land in dispute. I am a member of Ikia Family which has land. Plaintiff owns the land in dispute. Our family land is on the boundary of the land in dispute."

In a claim for a declaration of title to land, the accepted norms of proof are as laid down in several decisions of this Court and which are as follows:-

1.      By Traditional evidence-Abinabina v. Chief Enyimadu (1953) A.C. 207 at 215 - 216.

2.      By acts of ownership, provided the extended over a sufficient length of time and are numerous and positive enough to warrant the inference that the claimant is the true owner-EKPO v. ITA (11 N.L.R.) 68 at page 69.

3.      Proof by production of document of title which must be authenticated.

4.      Proof of ownership by acts of long possession and enjoyment in respect of the land to which acts are done-DA Coster v. Ikomi (1968) 1 ALL N.L.R. 394 at 398.

5.      Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be owner of the land in dispute HiggsI v. Nassau Vian Ltd. (1975)

A.C. 464 at 474.

As regards issue No.2 which relates to the pleadings filed in the suit and covers ground 4 of the ground of appeal, suffice it to say that in general, where a party has consented to a wrong procedure at the trial and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was followed. See G. A. Ajihwu v. The Principal Lotteries Officer Mid-Western State And Anor. (1972) 1 All N.L.R. 299; C.F.A.O. v. Onitsha Industries Limited (1932) 11 N.L.R. 102 and Colony Development Board v. Kamson & ors. (1955) 21, N.L.R. 75

Where a statement of claim was filed out of time, served on the defendant as such and the latter filed a statement of defence without protest and allowed the case to proceed to trial and final determination, it would be too late for such defendant to complain on appeal, against the statement of claim-See V.M. Okwechime v. Philip Igbinadolor (1964) N.M.L.R. 132.

After considering the argument of learned Counsel for the appellants as contained in the appellants' brief and his subsequent oral submissions, to which learned Counsel for the respondent was not called upon to reply, I am satisfied that except for the points raised in issues 1 and 2, the various findings of fact made by the learned trial Judge are amply supported by the evidence which he accepted. It is now settled law for the determination of appeal on issues of facts that it is not the business of an appellate court to embark on a fresh appraisal of the evidence where the trial court has unquestionably evaluated and appraised it, unless such findings are perverse-See Akinyele & Anor. v. Eyiyola & Ors. (1968) NMLR.92; Victor Woluchim & Ors. v. Chief Gudi & Ors. (1981) 5 S.C. 291 and Samson Awoyale v. Joshua O. Ogunbiyi (1986) 4 S.C. 98.

Consequently, the appeal fails and it is dismissed. The judgment and orders of the trial court as affirmed by the Court of Appeal are hereby further confirmed with N300.00 costs to the Respondents.

Obaseki, JSC. I have had the advantage of reading in draft the judgment just delivered by my learned brother, Wali, JSC. and I agree with his reasoning's and conclusion that the appeal be dismissed. However, by way of emphasis only, I make and add the following.

The appellants formulated 16 issues for determination in this appeal. Of particular interest are the 6th, 7th and 15th issues for determination which I hereby set out in full:

"6.     whether the plaintiff could get the declaration sought when the area claimed on the writ is different from the area given in evidence;

7.      whether the heavy reliance by the judge on affidavits allegedly sworn to by 2nd and 3rd defendants could not have led to a miscarriage of justice as that was the basis of the judge knocking off the claims of the 5th and 6th defendants even after holding that their traditional evidence (could be) true;

15.     whether the plaintiffs' evidence supported the claim for title trespass and injunction when the witnesses called by him were unable to tell how 2nd and 3rd defendants came on the land, and when the only witnesses who testified as to grant does not even know the land in dispute and states that Alafin owns the land."

Adjudication on any matter before a court of law is not an easy matter. Cogency of evidence led depends on a series of factors the most important of which is the credibility of witnesses in oral testimony. The credibility of witnesses is enhanced if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to his testimony either from independent witness or from previous testimony on oath of the witness himself. If the credibility of a witness is destroyed, the evidence he has given loses cogency and probative value.

It is therefore not surprising that the learned trial Judge decided not to believe the evidence of the 2nd and 3rd defendants when he discovered that the affidavit evidence earlier sworn to by both of them was contrary to the oral testimony before him. This is borne out by that portion of his judgment which reads:

"The 5th and 6th defendants claim that the second and third defendants are their tenants. Second defendant who is the 14th d.w. in this case gave evidence in support of this contention. I regret I cannot believe him. This defendant swore an affidavit in the High Court Registry in Ibadan on the 22nd day of September, 1966 when this case was Suit 1/169/65 to the effect that his late father, Ayanwale also approached the Sabiganna Lawoyin for farm land and that the Sabiganna took his late father to the present plaintiff for permission to farm on the land which is part of the land in dispute now. That the plaintiff agreed to the request and that his father became a tenant of the plaintiff on the land in dispute. Similarly, one Gbadegesin Ojediran Janduku who is the third defendant on this case swore on the same day and in the same court an affidavit on the same lines as the second defendant. These affidavits are part of the record of this Court in these proceedings Exhibits 6, 6(1), I cannot ignore them and I prefer what is said in them to their present testimony. I cannot resist coming to the conclusion that the second and third defendants are pure mercenaries, ever ready to cast their lot to whoever is prepared to make it worth their while."

The cases of the 5th and 6th defendants together with the cases of the 1st defendant and 4th defendant could not survive the devastating effect of the affidavit evidence sworn by the 3rd and 4th defendants. This is because the 1st defendant claimed the 2nd and 3rd defendants paid Ishakole to his family. No effort was made to prove this. The 4th defendant says the 2nd and 3rd defendants got to the land because they are related by marriage. They denied being the tenants of 4th defendant and finally the 5th and 6th defendants claimed 2nd and 3rd defendants as their tenants on the land.

Although the learned trial Judge found that 5th and 6th defendants and Sabiganna are related, he found that the 2nd and 3rd defendants are not tenants of 5th and 6th defendants.

Learned counsel for the appellants made every effort to convince us that the learned trial Judge was in error to dig up the affidavit evidence to destroy the credibility of the 3rd and 4th defendants as well as 1st, 5th and 6th defendants. No witness is entitled to the honour of "credibility" when he has two material inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful.

The Court of Appeal examined this issue and in its judgment (delivered by Onu, JCA. concurred in by Uche Omo and Sulu-Gambari, JJCA.), said:

"Much as 2nd, 3rd, 5th and 6th appellants are granted such permission and opportunity to comment on Exhibit 6 and 6(1) when the trial court suo motu showed them to them after discovering them from the case file, it is my considered view that the highest the trial court could do with them (Exhibits 6 and 6(1)) would, if any, of the parties used them was to contradict any of their oral evidence. The attack of the learned Counsel for 2nd, 3rd, 5th and 6th defendants is focussed on the heavy reliance placed upon those affidavits by the trial court to find that 2nd and 3rd defendants were not tenants of the 5th and 6th defendants.

Admittedly, the trial court heavily relied on them to arrive at such finding and they therefore constituted inadmissible evidence which went to no issue. See Oduaran v. John Asara (1978) 1 All NLR. 137/143. However, there is a body of evidence outside this finding to sustain the decision. This can be found in the case of the 5th and 6th appellants against the respondents' for title to the land in dispute which the trial court rightly rejected. If therefore 5th and 6th appellants whose tenants 2nd and 3rd appellants claimed they were could not visibly sustain their traditional history of claim of title to the disputed land as against the respondents as rightly found by the trial court, then 2nd and 3rd appellants could not have been tenants of landlords that never had any land ...

While therefore in appropriate cases Exhibits 6 and 6(1) should have been put in at the trial by way of testing the credibility's of 2nd and 3rd appellants through cross-examination, failure to have done so in the circumstances of the case in hand has, in my view, not occasioned a miscarriage of justice."

I agree with them that there was no miscarriage of justice.

For the above reasons and the more detailed reasons in the judgment of my learned brother, Wali, JSC., I hereby dismiss the appeal with costs to the respondents fixed at N300.00.

Uwais, JSC. I have had a preview of the judgment read by my learned brother, Wali, J.S.C. I agree with the reasons and conclusion therein.

Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondent

Oputa, JSC. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Wali, J.S.C. and I am in complete agreement with him that this appeal is completely unmeritorious and should be dismissed.

The claims before the trial Court were for:-

(a)     Declaration of Title

(b)     Damages for trespass; and

(c)     Injunction.

The Plaintiffs' root of title was clearly pleaded in paragraph 5 of the Statement of Claim thus:

"5      The land in dispute is part of the whole area of land, which originally belonged to Fedayi-Ewi, the ancestor of the Plaintiff who acquired and settled on the land over 150 years ago under native law and custom."

In addition the Plaintiff pleaded inheritance, long possession and user. In contra-distinction the Defendants pleaded in paragraph 14 of their Statement of Defence "that the 1st Defendant and his family are owners of a large area of land, portion of which is subject-matter of this suit, from time immemorial." Paragraph 15 of the Statement of Defence vaguely traced the Defendants' root of title to First Settlement. They settled on the land in dispute first. From the pleadings in this case, it is quite clear that the two contesting parties relied on their traditional histories, on their various acts of possession and user. These are issues of fact pure and simple. Much will therefore depend on the findings of fact of the trial Court.

After listening to the parties and their witnesses, the learned trial Judge, Ademola, J. (as he then was) found at p.61 of the record as follows:-

"I accept the traditional history of how his (the Plaintiff's) ancestors came to be on the land ... I accept that he has tenant on the land and in this respect I believe the evidence of Bello Ladipo PW4 who is a tenant of him. The presence of this man on the land is not even denied by the second defendant who has seen him on the land in dispute ... I hold that the second and third defendants were his (Plaintiff's) tenants ... I come to this conclusion that Inamere was founded by the ancestors of the plaintiff, and that the first plaintiff is Baale of it now. With all these findings which I have made in favour of the plaintiff, I would therefore award him a declaration sought in his writ of summons and injunction against all defendants

The issues contested were issues of fact and on those issues the trial Court made the above findings.

On appeal by the Defendants who lost in the Court of first instance, the Court of Appeal Ibadan Division, Uche Omo, Sulu Gambari and Onu, JJ.C.A. held that the Defendants' appeal "lacks substance" and accordingly dismissed it having earlier on held at pp.135/136 of the record:-

There have been neither errors in law nor any misdirection on the facts ... I am in full agreement with the submission of learned Counsel for respondents that there was ample evidence before the trial Court ... this Court cannot substitute its own views, if any, for those of the trial Court

The Court of Appeal thus upheld the findings of fact of the Court of first instance.

The Defendants/Appellants have now appealed to this Court against the concurrent findings of the two Courts. This is a considerable undertaking as it is the policy of this Court not to disturb such concurrent findings unless there are shown clearly and visibly exceptional circumstances disclosing a radical mistake in law or procedure or a miscarriage of justice. Neither in his Brief nor in his oral argument in elaboration thereof did learned Counsel for the Defendants/Appellants show any reason why we should disturb the concurrent findings of the two Courts below in this case. Since the case was fought mainly on the facts, there was not much left for learned Counsel for the Appellants. Also there were admissions at pp. 77/78 and 78/79 of the record of proceedings by the 2nd and 3rd Defendants/Appellants that they are tenants of the Plaintiff/Respondent. These admissions were made in sworn affidavits. When the attention of learned Counsel for the Appellants was called to those two affidavits, he quite frankly conceded that those affidavits concluded the appeal. Because of this concession it was unnecessary to call upon learned Counsel for the Respondents.