Gilbert T. Esanjumi Sagay v. Egberuo Ikpiri Sajere & Anor

In the High Court of the Bendel State (as it then was) holden at Sapele (now in Delta State), the appellant, (the plaintiff’) on behalf of himself and the children of Joseph Esanjunmi Sagay. (“Joseph Sagay”) sued the three respondents (“the defendants”) for themselves and on behalf of the Amukpe Community claiming damages for trespass and perpetual injunction. The defendants defended the action. The High Court. (Dugbo, J.).after trial of the suit gave judgment for the plaintiff. An injunction was ordered in terms that the defendants for themselves and on behalf of the Amukpe Community, their servants and/or agents are “restrained from disturbing the right of the plaintiff(who represent (sic) the Sagay family) to the use and occupation of the land in dispute as shown on plan No. CS 8/47 dated 5th January, 1981, subject to the usufructuary rights of the Amukpe Community in accordance with the Supreme Court judgment in Suit No. FSCI203/57”. Damages for trespass were awarded against the defendants.
The defendants appealed to the Court of Appeal who allowed their appeal set

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aside the judgment of the High Court and ordered that the suit be retried by the High Court. In this appeal by the plaintiff from the decision of the Court of Appeal two issues were raised, namely: whether the court below was right to send the case back for retrial “when there were (sic) evidence on record that the appellants are customary tenants of the respondents”, and whether the Court of Appeal should in the instant case not have evaluated the evidence of the parties and their witnesses on record upon failure of the trial court to do so.
On the pleadings the plaintiffs case was that Joseph Sagay,his father, died at Amukpe in 1952 leaving at the time of this death a large rubber plantation at Amukpe. On his death intestate the plaintiff by Itsekiri customary law succeeded to the landed property of the late Joseph Sagay. The plaintiff averred that he would rely on the following judgments: (I) Judgment in a suit W/28/54 between Pa Okuojeror and others of Amukpe and Sittim Sagay (later replaced by D.O. Sagay) and family of Amukpe over land which included the rubber plantation which Joseph Sagay had died possessed of. (2) Judgment of the Supreme Court of Appeal No. Sc. 8/1975 arising from a Suit No. S/27/65: Between Moses Edematia Sagay (for himself and on behalf if Sagay family) and Messrs New Independent Rubber Company Limited and 3 others. (3) Judgment of the Supreme Court in SC 305/57 which was given in an appeal arising from a suit No. W/158/57. The plaintiff averred that the judgment in one Appeal No. SC 8/1975 “defined the rights of both the Sagay family and the Amukpe community in respect of the “larger area’ of land used and occupied by members of Sagay family at Amukpe”, and that one Clarke Ejuren was adjudged a trespasser in suit W/158/57. The plaintiff averred that dispute arose because the defendants were building without his consent on the parcel of land which was “originally part of the land of the plaintiffs father”.

For their part, the defendants denied by their pleadings: (1) that Joseph Sagay had a rubber plantation near the land in dispute or at all: (2) that Joseph Sagay had any landed property: (3) that the Saga) family involved in suit No. S/27/65 which went to the Supreme Court as SC/8/1975 was the same as the family of Joseph Sagay. The defendants went further to aver (a) that the plaintiff in this suit was not representing in this suit the same Sagay family referred to in suits Nos. W/28/54 and FSC 203/57. and that the Sagay family referred to in that suit was not a tenant of the defendants’ community: (b) that the land which was the subject-matter of the suit was owned by the Amukpe Community and that the defendants neither granted nor sold the land to Joseph Sagay: and. (c) that the land in dispute and the land referred to as the

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“larger area” in W/28/54 or SC 203/507 has been in the defendants’ possession for man) years and was then still in the defendants’ possession. They pleaded that in appeal No. SC/154/67: Peter Orere Sagar v.  U.A.C Nig Ltd and others, the Supreme Court had held that Sagay family of which the plaintiff is a part could not maintain an action in trespass against the defendants in respect of any area in the larger area since the radical title in the larger area was vested in the defendants.
The plaintiff gave evidence and tendered in evidence two of the judgments referred to in the statement of claim, namely: the judgment of the Federal Supreme Court in appeal No. FSC/203/57 delivered on April 25. 1958 (exhibit A) and the judgment of the Supreme Court in Appeal No. SC 305/1966 delivered on December 21, 1966 (exhibit B). The defendants tendered the judgment delivered on December 22. 1966 in appeal No. SC 153/67.(exhibit G).
The parties adduced oral evidence in addition to the documentary evidence tendered which consisted largely, as has been seen of judgments in previous actions and plans. It emerged from the evidence, although not pleaded expressly by the plaintiff that it was common ground that the Amukpe community, represented by the defendants, were the owners of land which included the land now in dispute; that the Sagay family had a grant of land from the defendants’ community. Apparently, the Sagay family had gone beyond the limits of that original grant. This had driven the courts in the previous actions which had related, apparently, to the land to coin the term “larger area” to describe the area beyond the limits of that grant to the Sagay family.

Thus, there were two areas of land, namely: the area of the original grant and the larger area beyond the limits of the original grant. The issues that emerged from the pleadings and evidence adduced in the case were whether the land now in dispute was part of the land granted by the Amukpe Community to Sagay family; whether the plaintiff (and, for that matter, the Sagay family) had an exclusive possession of the land at all material times; and, the extent to which the judgments in the previous actions determined the rights of the parties. In a lengthy, but undoubtedly very poorly written judgment which consisted mainly of a repetition of the evidence given in the case and a rehash of the addresses of counsel, the trial judge held that: “The plaintiff is actively in possession of the land in dispute and the fact that the radical title vests in the Amukpe Community has not abrogated the legal rights or the Sagay family recognised in the Supreme Court Judgments cited and

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admitted in this suit” .. and that “‘if the community is desirous of building a town hall on the land in dispute they must first obtain the consent of the Sagay family in actual possession subject to certain rights of the Amukpe community, defined in Exhibit B….”
On the appeal to the Court of Appeal, Ejiwunmi, J.CA., as he then was, who gave the leading judgment of the court with which Omo, J.CA. (as he then was)and Salami, JCA. concurred, after referring to a passage in the judgment of the trial judge which included the passages quoted above, which indeed contained the substance of the trial judge’s decision, rightly observed that “beyond the passage quoted above, the learned trial judge did not examine the evidence of the other witnesses who testified during the trial”. He then asked the question whether in all the circumstances the trial judge gave a dispassionate consideration to the evidence before him before he arrived at the verdict which he reached. He answered the question thus:
“… the trial Judge ought to have made specific findings upon the issues of ownership and should have examined the evidence and thereafter give his reasons for reaching the conclusion with regard to the view he held that the respondent was actively in possession of the land in dispute”.
Being of the view that the learned trial Judge did not examine the issues before him as he ought to have done, and he “did not advert to the principles laid down on the doctrine of the above estoppel per rem judicata in his judgment, although he appeared to have based his verdict upon the judgment of the Supreme Court in SC.203/57”, the Court of Appeal set aside the judgment of the High Court and ordered a rehearing of the case before another judge of the High Court.

On this appeal from the decision or the court below, the substance of the argument advanced by counsel on behalf of the plaintiff is that, granted that the trial judge had failed to evaluate the evidence, such evidence did not involve the issue of credibility of witnesses and, as such, the Court of Appeal were in much the same position as the trial judge to evaluate the evidence and make proper findings of fact without a miscarriage of justice being occasioned. It was submitted that had the Court of Appeal evaluated the evidence on record which the trial judge failed to evaluate, they would have found that the plaintiff had been adjudged customary tenant of the defendants as contained in the judgment of the Supreme Court in Appeal No. SC/305/66. (Exhibit B). It was submitted, further, that the plaintiff having been adjudged customary tenant in previous actions, he could maintain an action of trespass since his tenancy had not been forfeited. Reference was made to the case

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of Sanusi v. Ameyogun (1992) 4 NWLR (Pt237) 527, 552, 556 in which the principles that guide an appellate court in ordering a retrial were stated.     It was argued that the court below had not taken those principles into consideration. It is well to bear in mind the distinction between cases in which a retrial is frowned upon because it has been ordered in a case in which a party has clearly failed to prove his case and one in which it has been ordered because of the failure of the trial judge to make findings of fact, where he should have, or determine issues which arose for determination in the case. The opinion held by the court below of the judgment of the High Court is in the latter category.
Learned counsel for the defendants carefully itemised some of the areas in which in his view there were conflicts of oral evidence on material issues. In his submission, those conflicts were not resolved by the trial judge and it was not proper for the court below to try to resolve them. Consequently, the court below was right in remitting the case to the High Court for rehearing.
Without doubt, the decisive question on this appeal is whether the Court of Appeal were justified in ordering the case to be reheard. It not being contended that the trial judge evaluated the evidence before he came to a conclusion, the substance of the argument of counsel on behalf of the plaintiff is that his default notwithstanding, the court below was in a position to evaluates the evidence and come to the conclusion that the trial judge would have come to had he properly discharged his duty as a court of trial. So, the question really boils down to this: was this a case which could be satisfactorily determined without resolving conflicts in evidence?

Or, put another way, was it a case which could have been determined merely by drawing inferences or ascribing legal consequences to established or uncontested facts?
Certain established principles of law have always guided our appellate courts may be quickly noted. When there are materials before the judge upon which he had to assess the evidence of a witness, it is not enough for the judge to say that he believed that witness without proper evaluation of the evidence upon which he based his belief: per Ademola CJN in Gbadamosi v. Ajao SC 462/66 delivered on June 24, 1968, quoted from Oladehin v. C.T.M.L. (1978) 2 SC 23. The court must consider issues joined by properly reviewing the evidence and making proper findings. In the case of Ozibe & Ors v. Aigbe & Ors (1977)(vol. 11) NSCC 389, the complaint of the appellant in that case, not dissimilar to the complaint in this case,  was that the trial judge (i) did not give a fair summary of the cases presented (b) the panics: (ii) did not summarise

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the evidence and make findings of fact on the various issues raised in the pleadings; and (iii) did not relate the declaration granted to the evidence and the plan”. The Supreme Court in that case (at p.394) noted that “The compass of the complaint widened to include the existence of irreconcilable conflicting evidence wrap (sic: wrapped?) up by the clothing of belief by the learned trial Judge without any attempt at resolving the conflicts.” Counsel for the appellant argued in that case that the learned trial judge totally failed to discharge his duty as judge and jury. He observed that there was no summing up and review of the evidence, that findings of fact were not made and that above all there was no proper evaluation of the evidence led. Allowing the appeal, setting aside the judgment of the High Court and remitting the case to the High Court for it to be retried the Supreme Court said:
“We have, ourselves studied the proceedings in this matter and found ourselves in entire agreement with both counsel appearing before us in this appeal. Pleadings were ordered filed and delivered. Several issues were joined on the pleadings and a great deal of evidence both documentary and oral led before the learned trial judge. The issues raised were not stated so as to engage the mind of the learned trial judge to a review and an examination of the evidence on the issues and enable him to make specific findings of fact on them.”
The appraisal of oral evidence and the ascription of probative values to such evidence is the primary function of the trial court. Fashanu v. Adekoya (1974) 6 SC 8.1.Where the issue turns on the credibility of witnesses an appellate court which has not seen the witnesses must defer to the opinion of the trial court.

Where the trial court has made an imperfect or improper use of the opportunities of seeing the witnesses, the appellate court will not seek to ascribe credibility to the witnesses but would order a retrial. The decision of a court must be based on the evidence and on reason. It should not be based on the intuition of the judge or conjecture or what the judge, untrammelled by the evidence, conceives to be a fair conclusion. When a judge who, guided by the pleadings, has heard evidence in a case but has in his judgment failed to give a fair summary of the cases presented by the parties and to summarise the evidence and make findings of fact on the various material issues raised in the pleadings, he cannot be seen to have discharged his judicial function properly. The requirement that a judgment must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the judge but on evidence, properly evaluated, and the law is not an insistence on

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mere form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.
In my opinion, the case was not one which could have been decided purely on the basis of the previous judgments put in evidence by the parties. There was the question or the identity of the land granted by the community to Sagay family vis-a-vis the land in dispute which could not have been resolved merely by looking at the judgments. Furthermore, in regard to the land which immediately caused the dispute then was conflict of evidence on the question of possession of the land and, particularly, whether it was pan of the plaintiffs rubber plantation. There was evidence led by the defence intended to establish that the plaintiff could not claim to have been in exclusive possession of the land as the defendants have exercised several unchallenged acts or possession on the land. By making a selective reference to the judgment of the Supreme Court in Appeal No. SC 305/66, (Exhibit B), counsel for the plaintiff had ignored and, perhaps, had attempted to wish away the judgment relied upon by the defendants, also of the Supreme Court and in a case between the representatives or the Sagay family and of the Amukpe Community in Appeal No. SC 153/67 (Exhibit G). There, the Supreme Court answered the question whether “the Sagay family are customary tenants of the Amukpe Community in respect of the “larger area”. They referred to the earlier judgment in appeal No. FSC. 203/57, which is exhibit A relied on by the plaintiff, and said:
“We consider it necessary to examine the judgment carefully as much reliance has been placed on it, from time to time, in cases which have come before the courts since the judgment was given. We are in no doubt that it preserves the rights of the members of Sagay family to use and occupy the larger area; and precludes them from asserting exclusive possession.

But the argument of Mr. Sowemimo that by the judgment, the Sagay family were granted a customary tenancy of the larger area seems to us manifestly untenable as the court did not decide that the Sagay family are customary tenants of the Amukpe Community. It is clear beyond argument that the Sagay family did not establish that they were customary tenants of the Amukpe community in respect of the larger area”.
It was decided in that case that the question whether the members of the Sagay family were customary tenants of the Amukpe community in respect of the larger area must be answered in the negative; and that the Sagay family could not sustain the action for trespass against the Amukpe community in whom was vested the radical title.

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Notwithstanding the opinion of the Supreme Court as indicated above, the trial judge held, in effect, and counsel for the plaintiff, on this appeal, submitted without equivocation that the appellants as customary tenant in respect of the ‘Larger Area’ or land the subject matter of the appeal can maintain an action in trespass against he respondent, because trespass is a wrong to possession. In view of the conclusion that may be arrived at later in this judgment care is taken to refrain from comments which such submission should draw. Any such comment may be prejudicial to the case of either of the parties should there be a retrial as ordered by the court below. The passage above has been quoted to emphasise the need to resolve the conflict in the evidence in regard to: location of the land immediately in dispute in relation to area of the gram which the Sagay family had; the question of contested exclusivity of possession claimed by the plaintiff; and the actual possession and occupation of the land subject-matter of the action.
In my judgment, had the matter rested solely on the judgments tendered in the case of which that tendered by the defendants was the last time, the Court of Appeal had probably been extremely generous to the plaintiff in ordering a retrial. Be that as it may, Ejiwunmi, JCA. (as he then was) who delivered the leading judgment of that court had said:
“In my opinion as it is the duty of a trial court to make primary findings of fact upon the issues before it. The decision of the learned Judge in awarding judgment to the respondent is vitiated by his failure to make definite findings of fact upon issues raised by the parties through their pleadings and the conflicting evidence led during the trial concerning the ownership of the land in dispute.”
I am in entire agreement with him. I feel no hesitation in holding that the Court of Appeal were right in holding that the proper order to make was to remit the case to the High Court for retrial before another judge of that court. In the result, I hold that the appeal is lacking in substance. I dismiss the appeal accordingly with N10,000 cost is to the defendants who are respondents to  this appeal.