FAMUROTI V AGBEKE (1991)

ABIODUN FAMUROTI V. MADAM S. AGBEKE
Famuroti v. Agbeke (1991) 5 NWLR (Pt.189)1, (1991) 6 S.C 1


In The Supreme Court of Nigeria
On Friday, the 7th day of June, 1991
Suit No: SC.81/1988

Before Their Lordships


ANDREWS OTUTU OBASEKI
……. Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS
……. Justice of the Supreme Court
SAIDU KAWU
……. Justice of the Supreme Court
SALIHU MODIBBO ALFA BELGORE
……. Justice of the Supreme Court
OLAJIDE OLATAWURA
……. Justice of the Supreme Court


Between

ABIODUN FAMUROTI Appellants



And


MADAM S. AGBEKE Respondents




O. OLATAWURA, J.S.C. (Delivering the Leading Judgment): The Appellant in this appeal was sued by the Respondent in the Ibadan Judicial Division of the Oyo State High Court: The Appellant and the Respondent are referred to as Defendant and Plaintiff respectively. In the endorsed Writ of Sumrnons, the Plaintiff claims are as follows:
       “The Plaintiff’s claim against the Defendant is for the sum of N500. being damages for trespass committed by the Defendant sometime in August 1977 by damaging the Plaintiff’s wall fence and erecting the defendant’s own wall fence within the piece or parcel of land situate and being at Oriaje’s Company, Oke Oluokun, Ibadan belonging to the plaintiff, by virtue of a Deed of Conveyance dated 7th of July, 1972 and Registered as No. 47 at page 47 in Volume 1410 of the Land Registry at Ibadan.

        Injunction restraining the defendant, his agents, servants etc. from committing further acts of trespass on the land.”

Both parties claimed from the same Oriaje family. I will refer to the pleadings shortly. What is in issue really is the precise area or piece of land sold to each party. The plaintiff’s claim is within the land edged Red on Plan No. OB.4421 admitted in evidence as Exhibit B. It is however necessary to point out at this initial stage that after the alleged sale by Oriaje family in 1959, one Mr. Abolade Coker a licensed surveyor, was instructed by the plaintiff to survey the land. He produced a plan No. CK.47 A-C71. An earlier action between the same parties in respect of the same piece of land was instituted at Ibadan Grade B. Customary Court. The claim was also for trespass and injunction. The judgment in favour of the plaintiff was set aside on appeal to the High Court on the ground that the area of the land trespassed upon in the absence of a plan, was imprecise. The area trespassed upon in Exhibit is edged Yellow. The Defendant as said earlier traced his title to the same family of Oriaje. He was put in possession by the family. He also relied on a deed of conveyance which was rejected at the trial on the ground of inadmissibility. Evidence was led by the parties. After a review of the evidence and due consideration of the authorities cited, the learned trial Judge Sijuwade J. gave judgment in favour of the plaintiff and awarded the sum of N150.00 as Damages. Injunction was also granted. The Defendant was dissatisfied with that judgment and appealed to the Court of Appeal. The appeal was dismissed. He has now appealed to this Court.

    Briefs were filed by the parties. Before referring to the issues raised, I now set down the Grounds of Appeal which are rather prolix, consequently these grounds are without the particulars.

    These Grounds of Appeal read as follows:

    “1. The Court of Appeal misdirected itself in law and in fact when it upheld the decision of the High Court Ibadan that there was proof of due execution of the Deed of Conveyance (Exhibit. A) by the Plaintiff/Respondent as required under the law.

    2. The Court of Appeal erred in law and misconceived the issues when in dismissing the complaints by the Appellant against the shifting of onus of proof of title on the Appellant by the learned trial Judge when there was no proof of due execution, when it held inter alia as follows;

       “In view of the foregoing the complaint in the ground on the shifting of the onus of proof of title on the Appellant when there is no proof of due execution is also not well founded for the reasons aforesaid; besides, the due execution of the conveyance was rightly presumed with reference to Section 149 of the Evidence Act. Karimu Ashamu not having been called by the Appellant to contradict the respondent’s testimony it seems to me that the conclusion of the trial judge that the said Exhibit A was properly executed was correct.”

    3. The Court of Appeal erred in law when it held that the comments of the trial judge quoted by the Appellant’s Counsel in his ground of appeal (Ground 1) was quoted out of context and relate mainly to the issue raised in paragraph 6 of the amended statement of defence of non est factumand forgery which was not substantiated by the Defendant/Appellant.

    4. The Court of Appeal erred in law and in fact in affirming the decision of the learned trial judge that the case of A.W. Elias is distinguishable from the present case and does not apply to the Survey Plans Exhibits B and (the one attached to) Exhibit A as being ex post facto.

    5. The Court of Appeal erred law in affirming the decision of the High Court, Ibadan that the failure of the plaintiff to produce the survey plan of the land in dispute allegedly sold to her in 1959 and prepared contemporaneously with the customary sale did not raise the application of Section 148 (d) of the Evidence Act to her case.

    6. The Court of Appeal erred in law when it upheld the decision of the High Court, Ibadan which wrongfully rejected the admission of the Deed of Conveyance (Exhibit R) pleaded and tendered by the Defendant/Appellant and thereby occasioned a substantial miscarriage of justice.

    7. The Court of Appeal erred in law in upholding the decision of the High Court, Ibadan which wrongfully admitted Exhibits C. C1 and C2 being evidence in a previous proceeding at a customary court that was subsequently non-suited at the High-court for non-particularly of the subject matter or failure to file a Survey plan of the land in dispute.

    8 The Court of Appeal erred in law and in fact when it held that the Appellant also failed to prove his case according to Native Law and Custom and thereby came to a wrong decision in dismissing the Appeal.

    9 The Court of Appeal erred in law when it upheld the decision of the High Court, Ibadan that the document of conveyance Exhibit ‘A’ in spite of being vague and defective and not referring specifically to the land in dispute was duly pleaded in paragraphs 6 and 16 and relates to the land in dispute.

    The issues settled in the Defendant’s Brief are four main issues and 5 subsidiary issues. The main issues are as follows:

    1. “Whether the Court of Appeal was right to hold that the trial court was satisfied with the explanation given by the Respondent for not calling members of Oriaje family or the surviving signatory to the Deed of Conveyance Exhibit ‘A’ as witness who conveyed the land to the Respondent.

    2. Whether the Court of Appeal was right to hold that there was such a finding and it was justifiable.

    3. Whether the due execution of the conveyance was rightly presumed with reference to Section 149 of the Evidence Act.

    4. Whether the Court of Appeal as well as the High Court were right to put the onus of calling as witness the surviving signatory of Exhibit ‘A’, Karimu Asamu on the Appellant; and that Karimu Asamu not having been called by the Appellant to contradict the Respondent’s testimony, the conclusion of the trial judge that Exhibit’ A’ was properly executed, was correct”.

The subsidiary issues are:

       “(i) Was the survey plan attached to Exhibit’ A’ made ex post facto and is the case of A.W. Elias v. Suleimon (1974) 1N.M.L.R.193 distinguishable from this case?

       (ii) Does the non-production of survey plan made for the Respondent in 1959 amount to the withholding of evidence under Section 148(d) of the Evidence Act or not?

       (iii) Are Exhibits C, C 1 and C2 wrongfully admitted being evidence in a proceeding subsequently non-suited?

       (iv) Was the Court of Appeal right to hold that the Applicant (sic) failed to prove customary sale of the land in dispute to him?

       “(v) Was the Court of Appeal right to confirm and hold that Exhibit ‘A’ the deed of conveyance and the claim pleaded in paragraph 16 of the statement of claim relate to the land in dispute?”

The Defendant raised these issues:

       “1. Whether the Court of Appeal was right to have upheld the findings of fact of the trial court that the Respondent did not need to call the surviving signatory to the Deed of the Respondent’s conveyance who was alleged to have secretly sold portion of the land in dispute to the Appellant in 1977 after the same had been conveyed, to the Respondent in 1972.

       2. Whether the Court of Appeal was right to have held that the Appellant should have called Karimu Ashamu who was the signatory to the Respondent’s conveyance and who also thereafter secretly sold portion of the land in dispute to the Appellant, having regard to the evidence of these facts the Statement of Defence of the Appellant that the Deed of  Conveyance of the Respondent was forged, and that the pleas of ID Non est Factum will be raised at the hearing of the case.

       3. Whether the Court of Appeal was right to have confirmed the judgment of the High Court having regards to all the circumstance of this case and particularly to:

       (a) The non-production of the survey plan by the Respondent, said to have been prepared in 1959 which was not made an issue in the pleadings but introduced under Cross-examination.

       (b) The admissibility of Exhibits C, C1, C2 admitted to discredit the Appellant’s Witnesses under Section (sic) 34, 208 and 209 of the Evidence Act in respect of a previous proceedings which has been non-suited, and against which the Appellant’s Counsel never objected in the court below.

       (c) The rejection of the sale of the Appellant under Native Law and Custom of the Land in dispute based on the evidence of discredited witnesses and the maxim of NEMO DAT QUOD NON HABET.

       (d) Whether the Respondent was able to ascertain the land in dispute from the pleadings the evidence and documents tendered.”

    In view of the evidence led the issues raised by both parties are broadly these:

       1. Is the land in dispute within the land sold to the Plaintiff in 1959 and later conveyed to her in 1972?

       2. If the answer to (1) above is no, is the land in dispute covered by the sale to the Defendant?

       3. Who is the trespasser, the Plaintiff or the Defendant?

Before going into these issues, I will like to deal with the legal issue raised by Chief Adisa in his brief. It appears to me that no effective effort has been made to upset the findings of fact made by the trial judge. Chief Adisa on page 13 of the Defendant’s Brief submitted that “Judgment ought not to have been entered for the Plaintiff who failed to call the signatory to the Deed or any member of Oriaje family to give evidence that their family sold and conveyed the land in the plan attached to Exhibit “A” in this case.” This submission learned Counsel christened “the gravemen of the complaint” in the appeal.

On page 16 of the same brief learned Counsel for the Defendant submitted again that Exhibit ‘A’ as pleaded in paragraph 6 of the Statement of Claim did not relate or specifically refer to the land in dispute pleaded in paragraphs 3 and 4 of the Statement of Claim. It is better at this stage to set out fully paragraphs 3-10 of the Statement of Claim as this will continue to feature in the judgment because of the learned Counsel’s submission. These paragraphs read thus:

    “3. Sometime in March 1959 the Principal members of Oriaje family including the head sold the parcel of land part of which is now in dispute to the plaintiff under Native Law and Custom for the sum of N80.

    “4 The Plaintiff entered into possession and remained in undisturbed possession of the land.

    5. Sometime in July, 1972 the plaintiff employed the services of Mr. Abolade Coker, a Licensed Surveyor to Survey the land and a Plan No. CK.47 A-C.71 was produced.

    6. The principal members of Oriaje family including the Head executed a deed of conveyance in favour of the plaintiff on the 7th day July, 1972 and the said Deed of Conveyance is registered as No 47 at page 47 in volume 1410 of the Land registry at Ibadan.

    7. The plaintiff made a building plan in respect of the land which was approved by the Ibadan Metropolitan Planning Authority on the 21st of May, 1976.”

    8. The parcel of land claimed by the plaintiff is edged Red on plan No.OB.4427 prepared by Mr. O. Bamgbose Licensed Surveyor filed with the Statement of Claim in this case.

    9. The plaintiff made a wall fence, made of blocks round the plot of land edged Red on Plan No. OB.4427, and sometime in 1977 the defendant pulled down part of the wall and drove the plaintiff’s workers away.

    10. The Defendant was sued to Court at the Grade B Customary Court for trespass and injunction and got judgment but the judgment was reversed in the High Court and plaintiff non suited because no plan was filed.”

    The main defence of the defendant after the denial of paragraphs 3-9 and, amendment made in the course of trial is as set hereunder:

3. “With regard to paragraph 3 of the Statement of Claim, the defendant avers that the land in dispute between the parties was portion of land sold on the defendant by the Oriaje family according to Native Law and Custom and that he was duly put in possession and by the deed of conveyance.

4. With regard to paragraph 10 of the Statement of Claim, the defendant avers that the plaintiff’s claim was non-suited for failure to show particularity of the land in dispute and by the deed of conveyance.

5. With regard to paragraph 14 of the Statement of Claim, the defendant avers that he purchased the land from members of Oriaje family including the Head of the family according to Native Law and Custom.

6. With regard to paragraph 7 of the Statement of Claim the defendant will further raise at the trial the defence of Non est factum or/and forgery relating to the said deed of conveyance.”

Exhibit ‘A’ is the Deed of Conveyance between the plaintiff and Makinde Akande (head of Oriaje family) and one Karimu Asamu. It is dated 7th day July, 1972. In the recitals, testatum and operative words the sale of the land in 1959 was recited. Consequently the claim is based on the conveyance:Alade v. Aborishade 5 F.S.C. 167/174; (1960) SCNLR 398. The land in dispute is marked ‘B’ in the Plan No. CK47A-C/71 attached to Exhibit. ‘A’ to show the actual land conveyed. Where there is doubt or ambiguity in the operative part of the conveyance and the recitals are clear, there could be a resort to the recitals. This will govern the constructions of the Conveyance: RE SASSOON (I 933) Ch.858 or 1935 AC 96. The relevant recital in Exhibit A reads:

“AND WHEREAS the Vendors (Oriaje family) sold the said land marked ’91B and edged Red in Plan No. CK47AC/71 according to the Yoruba Native Law and Custom to the Purchaser for forty pounds on the 18th day of March 1959, when the said Purchaser had entered into, and had remained in undisturbed possession of the said land

NOW WITNESSETH this Deed that in pursuance of the said agreement and in consideration of the payment of forty Pounds made by the Purchaser to the Vendors’ family, in March 1959 ………………………………………………….the Vendors as the Beneficial Owners of the said piece or parcel of land situate, lying and being at Oke Oluokun Ibadan……………………….. more particularly described and delineated with its dimensions and abuttals on the plan No. CK47A-C/71

“and thereon marked ‘B’ and edged Red CONVEY the said land on behalf of themselves and the other members of Oriaje family unto the Purchaser.”

The meaning in the operative part is clear and unambiguous. It specifically refers to the land conveyed as shown in Plan No. CK47 A-C/71. Where the area of land conveyed is show in a Survey Plan attached to a conveyance, it is a lame excuse to say the land is not defined. The evidence led by the Plaintiff that Makinde was the head of the family at the time the land was conveyed to her in 1972 was accepted by the Court. The objection raised on behalf of the Defendant with regard to the thumb impression was overruled. When P.W.3 Mr. Olawuyi Bamigbose gave evidence he was emphatic that the land conveyed by Exhibit’ A’ and marked ‘B’ in the plan attached to the conveyance is the same land edged red in Exhibit ‘B’. The submission that Exhibit ‘A’ “did not relate or specifically refer to the land in dispute” is misconceived.

In his brief summary of the facts of the case on appeal, Chief Adisa the learned Counsel for the appellant in a concise manner stated the case of the defendant to be:

“The Appellant on the other hand claimed to have bought the land in dispute from Oriaje family in 1977 according to Native Law and Custom and later evidenced by a Deed of Conveyance.

The Appellant called members of Oriaje family and those confirmed the sale of the land in dispute to him by the head and other members of Oriaje family…………………………………..”

It appears to me too late in the day to allow the defendant to resile from that statement which forms the basis of the defendant’s appeal. As found by the learned trial Judge, a finding which has not been attacked on any ground, the two parties are claiming from the same family of Oriaje. In Gilbert A. Awomuti v. Salam; & Ors. (1978) 3 S.C. 105 p. 115 this Court clearly stated the principle of law which governs a claim by both parties from the same family thus:

“There is no doubt that in a claim for declaration of title the onus lies on the plaintiff to prove his title to the land and he succeeds on the strength of his own case. However, where the land in dispute has been accepted by both the plaintiff and the Defendant as originally family land, and either party claims title to that land through that family, (just as in this case) the plaintiff only has to discharge the onus of proof of title in him and the onus shifts to the Defendant, who has also claimed title to the land. The onus is on that defendant, who has also claimed title to prove his title. Where the defendant fails to discharge that onus, the plaintiff, who has discharge the onus on him, succeeds.”

If then Exhibit ‘A’ is unconnected with the land in dispute; it is a wasteful exercise to attack Exhibit’ A’ on the ground that due execution was not proved. It was the contention of the defendant in the trial Court that Exhibit ‘A’ was not properly executed and that it was a forgery. The onus is on the defendant to prove forgery. See section 134(1) of the Evidence Act. Once it is the defendant’s case that Karimu Asamu did not sign or thumb print Exhibit’ A’ the burden of proof lies on the defendant. The case of City Property Development Ltd. v. Attorney-General Of Lagos State & Ors (1976) 1 S.C.71 relied upon by the defendant is distinguishable in this sense that in that case, the conveyance relied upon by the plaintiff has not been challenged on the ground of fraud or forgery. The principle stated by the case is to the fact that when simply a party relies on an conveyance he must prove due execution. But in this appeal the thumb impression was said to have been forged, it is the party that alleges the commission of a crime that must prove it beyond reasonable doubt: See section 137(1) of the Evidence Act.

Assuming that Karimu Asamu is a necessary party to the case, no party is bound to call a hostile witness that is likely to give evidence against him. The defendant who is claiming through the same family is also in a position to call-Karimu Asamu because as found by the trial Judge, it was the same Karimu Asamu who was alleged to have “resold the land in dispute to the defendant when the latter was challenged on the land in 1977”. The role of Karimu Asamu as having taken part in the sale of the same piece of land to both parties was the main reason why the Judge concluded no explanation has been given for his absence or why he was not called. The lower court was right in its conclusion that

“Karimu Asamu not having been called by the appellant to contradict the respondent’s testimony, it seems to me that the conclusion of the trial Judge that the said Exhibit ‘A’ was properly executed was correct.”

Learned Counsel for the Defendant has again attacked the lower court in its application of section 149) of the Evidence Act. The lower court did not state specifically that section 149(1) of the Evidence Act applies. It referred to 149 generally without reference to any subsection – See p.112 of the Record of Appeal. It was the trial Court that invoked section 149(1) of the Evidence Act. I agree that in the circumstances of the case, Section 149(1) is not necessary for the determination of the case and will not apply in that the issue of whether the formal requisites were-complied with was not before the Court, it was neither a question of whether Exhibit ‘A’ was not read to the Vendors nor that the person before whom they signed was not a Chief Magistrate, the complaint of the defendant was proof of “due execution.” However, I will point out that it is not every error discovered on appeal that will automatically lead to the reversal of a judgment. An error must be substantial before an appeal is allowed: Olubode v. Salami (985) 2 NWLR (pt. 7) 282; Onojobi v. Olanipekun (1985) 4 SC.156/163;.Gwonto v. The State (1983) 1 S.CN.L.R. 142. As pointed & bull;  out before if Exhibit ‘A’ has not been challenged on the ground of forgery that the thumb impression of Karimu Asamu was forged, then the principle of law in City Property Development Ltd. (supra) will apply. The case of the plaintiff would have succeeded without invoking section 149 of the Evidence Act.

Having disposed of some of the relevant legal issues which give Chief Adisa some concern, I now come to the findings of fact which have not been seriously and effectively challenged in this appeal:

1. That the land in dispute originally belonged to Oriaje family

2. That the defendant did not deny erecting the wall-fence around the area edged Yellow, his explanation being that it was done before the wall was damaged by the plaintiff.

3. That it was after the sale of the land to the plaintiff under native law and custom in 1959 that a conveyance was made in 1972.

4. That at the material time to the case one Makinde was the head of Oriaje family and that it was this Makinde that was the head of Oriaje family when Exhibit ‘A’ i.e. the plaintiffs conveyance was executed.

5. That it was Karimu Asamu who executed Exhibit ‘A’ that resold the land in dispute to the defendant in 1977.

6. That it was not denied in the Amended Statement of Defence that Makinde Akande and Karimu Asamu were not accredited representatives of Oriaje family.

7. That Exhibit’ A’ cannot be described as a forgery or the plea of non est factum be sustained where neither of these vendors was called as a witness.

These findings were confirmed by the Appeal Court. It has consistently been the practice of this Court as shown by a long line of authorities that where there are concurrent findings of fact, such findings will not be disturbed unless they are perverse; Ojomo v. Ajao (1983) 2 SC. 156/168;(1983) 2 SCNLR 156; Nigerian Bottling Co Ltd. v. Constance O. Ngonadi (1985) 5 SC. 317/319; (1985) 1 NWLR (Pt. 4) 737; Ogbechie. v. Onochie (1988) 1 NWLR (Pt. 20) 370/390 to mention a few.

The land sold to the plaintiff is definitely the land conveyed to her in 1972. The defendant is relying on a conveyance of 1977 which was not in evidence before the court. The plaintiff’s evidence that she had been in possession since the sale to her was accepted by the learned trial Judge. Chief Adisa has relied so much on the case of Elias v. Suleiman & Ors. (1974) NMLR 193. The ratio in Thomas v. Preston Holder 12 WACA 78 which was cited with approval in that case is of considerable assistance in this case since both parties in this appeal as earlier shown claimed through the same vendor. I quote the very relevant part.

“Where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If this title has been so established, then the onus is upon the defendant to show that his possession is of such a nature as to oust that of the original owners.”

If it is appreciated that the case put forward by the plaintiff and as clearly shown by her evidence is that she say that the defendant had no land in the area but that he trespassed into a portion of the land on which she had already built and fence round, the issue of due execution which properly laid to rest by the trial court and confirmed by the lower court should not have been pursued here again. So much is clear from the evidence of the plaintiff under cross-examination she said:

“The defendant is claiming title to the land in dispute but he is lying; I am the owner of the land in dispute. The defendant has built his own house. It was the house that I first built before making the wall fence. It was third day he got the Court’s summons that he rushed to build on the land. The defendant built a house on his own land before coming to trespass on my own land. The defendant’s house is at my backyard and I was present in the Court when Exhibit ‘A’ was executed by Karimu and Makinde. I cannot remember whether Karimu signed or thumb printed the deed – Exhibit ‘A’ on the day. Karimu thumb-impression (sic) the document; he came to the Court on the day the deed was executed; we were all present. The only two people that I remember who thumb-printed Exhibit ‘A’ were Makinde and Karimu. Those who thumb-printed the document could be seen in Exhibit ‘A’.”

I will say that the land in dispute is as stated by the plaintiff and duly covered by Exhibit ‘A’. Having found that the land in dispute is covered by Exhibit ‘A’, the defendant cannot now rely on a later sale of part of the same piece of land to him. As at the time of the alleged sale by the same family that sold to the respondent, that family had nothing in law to sell: nemo dot quod non habet.

I will now consider the use made of Exhibits C, C1 and C2. Learned Counsel has relied on Fadiora v. Gbadebo (1978) 3 SC. 219. There is a misapprehension on the part of the learned Counsel for the defendant why Exhibit C, C 1, C2 were admitted., Simply put, it is to discredit the witnesses who departed drastically from or denied their earlier evidence in an earlier proceeding: See pages 21 – 23 of the Record of Proceedings; one of the issues decided in Fadiora v. Gbadebo was whether an earlier abortive proceedings can-give rise to a valid-plea of estoppel. It did not go so far as is being contended by the learned Counsel for the defendant that a witness in that abortive proceedings cannot be discredited on account of subsequent evidence which contradicts or denies an earlier evidence or statement. For instance the testimony of a dead witness in an abortive trial where retrial was ordered was admitted under section 34 of the Evidence Act. See Sanyaolu v. Coker (1983) 3 S.C.124/157-8; (1983) 1 SCNLR 168 where this Court observed:

“The fact that a retrial was ordered would render abortive NOT the evidence of the witness who testified in the abortive trial, where such evidence is admissible but the judgment of the Court in the said abortive trial. The judgment of court cannot be used in SUPPORT of a plea of res judicata since the judgment was nullified.” (Capitals supplied for emphasis).

I agree with Mr. Adekola the learned Counsel for the plaintiff in his brief that the evidence led in the first abortive proceedings can be used to discredit the witnesses in the new trial. The judgment in the Customary Court case was set aside on the ground of imprecise description of the land in dispute without a plan. Chief Adisa has relied on Section 226 of the Evidence Act to the effect that the admission of Exhibits C, C1 and C2 had already affected the merit of the decision, in other words, judgment would not have been entered in favour of the plaintiff but for those proceedings. In the first place, the learned trial judge did not use the evidence of another proceeding in coming to a decision. This much the learned judge appreciated, the purpose why the exhibits were admitted was summoned up thus:

“They (i.e. the witnesses for the defendants) have been successfully discredited in their testimonies by the production of their earlier evidence in the customary court on the same subject-matter as shown in Exhibits C, C 1 and C2.“

Owonyin v. Omotosho (1961) 1 All N.L.R. 304; (1961) 2 SCNLR 57 has clarified any doubt about the use that can be made of the evidence in earlier proceedings. It is that, it may be used for cross-examination as to credit, but is of no higher value. See also Esene v. Isikhuemen (1978) 2 S.C.87. I have examined the proceedings of the trial in the court of first instance, the learned Judge had complied with the law. The application of section 226 of the Evidence Act is therefore ineffectual in that the appellant has not shown that without the use made of the Exhibits the result must have been otherwise.

In sum I will dismiss this appeal with costs assessed at N500.00 in favour of the plaintiff.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Olatawura, J.S.C., and find that his opinions on all the issues for determination in this matter accord with mine. I therefore adopt them as my own.

Accordingly, I agree with him that the appeal be dismissed and I hereby dismiss it with N500.00 costs to the respondent.

M. L. UWAIS, J.S.C.: I have had the advantage of reading in advance the judgment read by my learned brother Olatawura, J.S.C. I agree that the appeal has no merit and that it should be dismissed with N500.00 costs to the respondent.

S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Olatawura, J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal should be dismissed. I am satisfied that on the evidence adduced at the trial, the plaintiff, respondent herein, was entitled to the judgment of the court. I see no merit in this appeal which I too will dismiss with N500.00 costs awarded to the respondent.

S. M. A. BELGORE, J.S.C: This appeal despite the clearly couched grounds of appeal on law and misdirection, is nothing but a challenge of concurrent findings of fact by the two lower courts. This court as an appellate court will not disturb the findings of fact by the lower courts except in exceptional circumstances. (See Okonkwo v.  Okolo (1988) 2 N.W.L.R. (Pt.79), 632; Ojo v. Governor of Oyo State (1989) 1 N.W.L.R.(Pt. 95) 1; Abdullahi v. The State (1985) 1 N.W.L.R. (Pt. 3) 523;Balogun v. Labiran (1988) 3 N.W.L.R. (Pt.80) 66, among several other decisions of this court)

For the fuller reasons contained in the judgment of my learned brother Olatawura, J.S.C. which I also adopt as mine, I find no merit in this appeal and I accordingly dismiss it with N500.00 costs to the respondents.

Appeal dismissed.




Appearances

E. Adeoye Adisa For the Appelants

R. A. Adekola For the Respondents