Guardian Law ReportIn the Supreme Court of Nigeria,Holden at Abuja,On Friday, February 10, 2012,Before their Lordships:Walter Samuel Nkanu Onnoghen, Justice, Supreme Court;John Afolabi Fabiyi, Justice, Supreme Court;Olufunlola Oyelola Adekeye, Justice, Supreme Court;Mary Ukaego Peter-Odili,Justice, Supreme Court;BetweenMilitary governor of Lagos State,The Attorney General of Lagos StateThe Director of Town Planning & Land MattersLand Use and Allocation CommitteeSamuel Olatunde Smith (appellants)andAdebayo Adeyiga,Alhaji T.O. Ashiru,Ekundayo Kuponiyi,Alhaji Sikiru Adeyiga,Moses Adewunmi Adekoya,Samuel Onatemowo,Philips Ogunbanwo (respondents).(Suing for themselves and on behalf of other members of Shangisha Landlords' Association as per order of court Dated November 21, 1988).THE unchallenged evidence of PW1 and the documentary evidence tendered, supplied the ample evidence that the appellants demolished the structures of the respondents of the disputed land. This brings me to the issue whether the court below properly evaluated the evidence of the respondents before affirming the declaratory judgment of the trial court granting mandatory injunction compelling the appellants to allocate 549 plots of land to the respondents.It is a trial court, which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favor the balance of justice tilts, makes the necessary findings of fact and com to a logical conclusion. The evaluation remains the exclusive preserve of the trial court because of its singular opportunity of hearing and watching the demeanor of witnesses as they testify and thus it is the court best suited to assess their credibility. It is only when it fails to evaluate such evidence properly or at all that an appellant court can intervene and re-evaluate such evidence otherwise the appellant court has no business interfering with findings of the trial court on such evidence.Agbi v. Ogbe (2006) 11 NWLR (pt. 990) pg.65Bashaya v. State (1998) 5 NWLR (pt.550) pg. 351The evaluation of evidence in the instant suit before the trial court was based on the unchallenged evidence of the plaintiffs/respondents. The position of the law where evidence is unchallenged or uncontroverted is that such evidence will be accepted as proof of a fact it seeks to establish.A trial court is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his witness. In such a situation, there is nothing to put or weigh on the imaginary scale of justice. In the circumstance the onus of proof is naturally discharged on a minimum proof.The trial court accepted and believed the evidence of the respondent after proper evaluation: the Court of Appeal affirmed the judgment. The lower court had no cause to interfere with it or re-evaluate the findings of fact of the trial court. The Court of Appeal affirmed the declaratory judgment of the trial court which based on the nature of the claim before the court amounted to a judicial pronouncement on the legal state of affairs between the parties in the claim of the respondent to their right to preferential treatment in allocation of plots of lands by the Lagos State government in Shangisha Village.The appellants also challenged the propriety of the lower court granting a mandatory injunction compelling the defendants to allocate 549 plots of land to the respondents and the lower court affirming same.The appellants mentioned in their brief that what was the issue of formal application for re-allocation and unresolved proposals. Also, the Exhibit P25 merely advised the Executive Secretary of the Land Use and Allocation Committee to find alternative plots of land for those who are physically present on the land before the demolition exercise not as of right but just to keep off from disturbing government allottees. I do not want to believe that the government was given the advice in Exhibit P25 without verifying the truth of the destruction of the properties of the respondents.Exhibit P25 and the meetings with members of the association had committed the government to giving the respondents replacements for their plots of land.It will be inequitable to resile from such representation. As a matter of fact, estoppel by conduct/representation can readily be invoked in the circumstance. Against this background, it was necessary for the trial court to grant a mandatory injunction as a consequential order to direct the government to take necessary steps having entered judgment for the respondents on their claim. The court will always invoke its equitable jurisdiction and exercise its discretion to grant a mandatory injunction where the injury done to the plaintiff cannot be estimated and sufficiently compensated by damages and the injury to the plaintiff is so serious and material that the restoration of things to their former condition is the only method whereby justice can be adequately done.In this case, the learned trial judge exercised his discretion in considering the trail of this case as a matter deserving urgency and thereby heard same during Christmas vacation and furthermore acted judicially and judiciously in granting the mandatory injunction. Where the exercise of discretion by a trial court is in issue, an appellant court is usually reluctant to interfere with decision except where the discretion was exercised in an arbitrary or illegal manner or without due consideration of the issues by the trial court. In the instant case, the Court of Appeal affirmed that the trial court rightly exercised its discretion during the trial of this case. This court has no reason with that conclusion.R. v Benkay nig. Ltd. V. Cardbury (Nig) Plc (2006) 6 NWLR (pt. 676) pg. 338In the instant appeal at this juncture, there are two concurrent findings of fact of the two lower courts. The Supreme Court will not ordinarily disturb concurrent findings of fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or where such findings are perverse. On going through the record, it is my conclusion that the court has no duty to interfere with the decision of the lower courts.I resolve these issues in favour of the respondents. This court appreciates the magnanimity of the Lagos State government in the proposals to effect an amicable settlement of this matter. The ball is now in the court of the counsel to the respondents who has a statutory duty to advise them properly to give the government their maximum co-operation in the execution of this judgment.In sum the appeal lacks merit and it is dismissed. The judgments of the two lower courts are affirmed. The costs of this appeal is assesses as N50,000 in favour of the respondents.
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