Alhaja Muinat Odumosu & Anor V. Taiwo Oluwole & Anor (2002)

LawGlobal-Hub Lead Judgment Report

O. ADEKEYE, J.C.A.

This is an Appeal against the judgment of the High Court of Ogun State, Sagamu Judicial Division, delivered on the 29th of September 1994. The Plaintiffs, Taiwo Oluwole and Alhaji Kasumu Bisi representing themselves and the Legushen Family of Offin Sagamu, Ijebu-Remo in Ogun State, now Respondents in this Appeal claimed against the Defendants Alhaja Muinat Odumosu and Madam Muyibat Oyekan, now Appellants, before the High Court in Sagamu the following relief’s: –

1. A Declaration that the Plaintiffs are entitled to a statutory right of occupancy over all that piece or parcel of land situate, lying and being along Onyagba Street Legunshen Family land – Offin, Sagamu Ijebu- Remo Ogun State of Nigeria which land is more particularly described and edged “Yellow” on the attached Plan No OG 60/73 drawn by S. Akin Ogunbiyi Licensed Surveyor.
2. The sum of Twelve Thousand Naira (N12, 000) being special and general damages for trespass committed by the Defendant, his agents and servants on the land in dispute.
3. Perpetual injunction restraining the Defendant by himself, his agents and servants from committing any further acts of trespass on the land in dispute.

In the suit filed at the lower court parties filed and exchanged pleadings. The case proceeded to hearing on the amended statement of claim and amended statement of defence and reply to amended statement of defence. The facts at the disposal of the trial court were that the Respondents as Plaintiffs rested their root of title in respect of a large tract of land at Offin Sagamu Ijebu-Remo on traditional evidence that their ancestors Onasanjo and Okumala came from Orile-Offin, crossed Erebunu Stream, to settle on this vast area of land now known and called Legunshen Family land. The land in dispute between the parties forms part of the land. The family land extended beyond Erebunu Stream up to the place now called Ijagba in Offin Sagamu. Onasajo and his brother Ikumala led members of the Legunshen family from Offin homestead (Orile Offin) to Sagamu along with Akarigbo Igimisoje due to inter-tribal wars. They used the area known as Legunshen quarters Offin Sagamu for residential purpose; they retained their respective farms which they were using before they moved to Sagamu across Erebunu Stream including the land in dispute. Onasajo and Okumala enjoyed undisturbed possession of their land until their death when the land devolved on their children and grandchildren including the Plaintiffs now Respondents. The Legunshen family had granted parcels of their land to members of their family and strangers for residential purpose. Records of such grants were kept in the Family records by the family secretary. The family had exercised maximum acts of ownership on their vast area of land undisturbed until June 1971 when Olayiga Balogun, Osolabi Adesina and Yekini Saka came to erect a saw-mill industry on the land. The three people traced their claim to the land, otherwise known as Legunshen land through purchase from one Bisiriyu Kadiri, the father of the Appellants. Bisiriyu Kadiri claimed to have bought a large parcel of land including the land in dispute from Salu Odojukan, a principal member of Legunshen family in 1948. As the Respondents had no records of such sale, they resisted the occupation of the land and authorised one Chief Buraimoh Awofala to file an action in court against the three people in the Customary Court until Bisiriyu Kadiri died in 1973. There were series of actions in court in respect of alleged trespass into the Legunshen family land until 1984 when the Appellant commenced erection of buildings on the land. The Appellants based their claim and ownership of the land on a Court Judgment. Both parties raised Suit Nos. AB/85/71, No 708/56, Appeal No 74/57 and HCJ/46/77 as Res Judicata as parties’ issues and subject-matter are the same as the present action. The Respondents abandoned the claim for damages for trespass in their amended statement of claim vide pages 4-24 of the record. The learned trial Judge in his considered judgment found for the Respondents in terms of the reliefs claimed in their Amended Statement of Claim.

Being dissatisfied with the decision of the trial court the Appellants appealed to this Court. Parties settled Records and exchanged Briefs. The Appellants in their Notice of Appeal had six amended grounds of appeal from which he formulated five issues for determination as follows:-

1) Whether having regard to the Respondents’ pleadings on traditional evidence being the only mode of ownership considered by the court, the facts of ownership by inheritance as averred and evidence led in support thereof are sufficient to support a Claim for declaration of title.

2) Whether paragraphs 1, 22 and 24 of the amended statement of defence amount to mere and not specific denial of the traditional evidence as averred in paragraphs 3, 6, 7 and 27 of the amended statement of claim and if so;

Whether a declaration of title to a piece of land can be granted solely on the basis of admissions in pleadings.

3) Whether the Respondents established the identity of the land in dispute with certainty as to entitle them to the declaration and injunction sought and if the answer is in the affirmative, whether the Order of injunction was rightly made having regard to the circumstances of the case.

4) Whether the learned trial Judge was right in holding that the land in dispute herein is the same as the land in dispute in Suit No 1 AB/85/71 otherwise called 1971 case.

5) Whether the learned trial Judge properly evaluated the evidence.

The Respondents however distilled only one issue for determination as follows: –

Whether or not the Legushen family had divested themselves of their title to the land in dispute through the sale of a larger piece of land including the land now in dispute to Bisiriyu Kadiri by Chief Saliu Odojukan as pleaded in paragraphs 6 and 7 of the amended statement of defence.

The issue is said to have arisen from ground 4 of the Appellants’ ground of appeal. The Appellants’ counsel asked the Court to grant him the indulgence of adopting his Arguments in Issue No 5 of the Appellant’s issues for determination, in the Appellants’ brief to cover this sole issue.

The court shall adopt the five issues for determination as distilled by the Appellants.

ISSUE NO 1

This relates to whether the evidence of tradition put forward by the Respondents in their pleadings particularly facts of ownership by inheritance and whether evidence led in support is sufficient to support a claim for declaration of title.

The Appellants outlined the pleadings of the Respondents – particularly paragraphs 6, 7 and 30 at pages 5-11 of the amended statement of claim and the evidence in support by 2nd Plaintiff witness Taiwo Oluwole – page 29, lines 20-21 of the record. The Respondents failed to plead their genealogy or give evidence in support of same. The Respondents must plead the claim of devolution from the founder to the present Respondents. It has been established by a line of authorities that where evidence of tradition is relied on in proof of declaration of title to land, the Plaintiff is bound to plead and establish facts relating to the founding of the land, the persons who founded the land, exercised original acts of possession, the person on whom the title in respect of the land was devolved since its founding as necessary for determination of the issue in what communal capacity the land was being held. The evidence of the Respondents did not show the person on whom the title in respect of the land has evolved since its founding. There was no evidence of intervening owners until the present Respondents. In short no nexus between Onasajo Okumala and the present Respondents. There must be evidence to link the Respondents with their history. The learned Judge found the traditional evidence of the respondents conclusive. This Court should dismiss the respondents’ case for failure to prove Root of Title. The Appellants cited the cases of

PIERO v. TENALO & ORS (1976) 12 SC 31 at pg 41

OLUJINLE v. ADEAGBO (1988) 2 NWLR Pt 75 pg 238

KALIO v. WOLUCHEM (1985) 1 NWLR Pt 4 pg 610 at 628

OSAFILE v. ODI (1994) 2 NWLR Pt 328 pg 125 at 138

OWOADE v. OMITOLA (1988) 2 NWLR Pt 77 pg 413 at 425

ODOFIN v. AYOOLA (1984) 11 SC 72,

BALOGUN v. AKANJI & ORS (1988) 1 NWLR Pt 70 pg 301.

The Respondents replied that the land in dispute is claimed for the Legushen family as descendants of Onasajo and Okumala their ancestors who settled on a vast area of land including the land in dispute. The land devolved on their children and grandchildren- including the Respondents – vide pages 3, 6, 7, 23, 24, 25, 26, 27, 28, 29 and 30 of the amended statement of claim, pages 4-11 of the record. It was the Appellants who had failed to establish how they acquired legal interest in the land in dispute in one of the five ways identified in the case of IDUNDUN v. OKUMAGBA (1976) 10 SC 227. The title of the Respondent to the larger piece of land, which the disputed land forms part was not challenged. The Court is to dismiss the Appeal on this issue.

It is a well settled principle of law that in an action where title to land is in issue, the party claiming that he has better title must prove his title by cogent, satisfactory and conclusive evidence ONIBUDO v. AKIBU (1982) 7 SC 60, AIGHIONBERE v. OMOREGIE (1976) 12 SC 11. Such a party must succeed on the strength of his own case. The evidence in support of his case must be in accordance with the pleadings. KODINLINYE v. ODU (1935) 2 WACA 336, UCHENDU v. OGBONI (1999) 5 NWLR Pt. 603 pg 337, OKAFOR v. IDIGO (1984) 1 SCNLR 481, ATANDA v. AJANI 1989 3 NWLR Pt 111 pg 511 PIANO v. TENALO (1976) 12 SC pg 31, OGUNLEYE v. ONI 1990 2 NWLR Pt. 135 pg 745 ALLI v. ALESHINLOYE (2000) 6 NWLR Pt 660 pg 177.

A party to a land dispute may plead and lead evidence to prove his title in any of the five recognised ways as enumerated in the case of IDUNDUN v. OKUMAGBA (1976) 9-10 SC pg 277. The Respondents relied on traditional evidence or history in establishing their root of title. The contention of the Appellants in this appeal is that the Respondents have failed to plead and aver evidence of the genealogy, successive descendants; in short there is no nexus between the ancestors of the Legushen family and themselves.

It was held in the case of ALLI v. ALESHINLOYE by the Supreme Court 2000 6 NWLR Pt 660 pg 177 at pg 203 paragraphs A-C pg 223 B-D that:-

“It is not sufficient for a party who relies for proof of title to land on traditional history to merely prove that he or his predecessors in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as;

(a) who founded the land;

(b) in what manner was the land founded and the circumstance leading to it;

(c) the names and particulars of the successive owners or trustees through whom the land devolved from the founder to a living descendant or descendants who most likely will give oral history.

The traditional evidence of first settlement on or the founding of land will not be admissible let alone accepted and acted upon without the above pleadings. AKINLOYE v. EYIYOLA (1968) NMLR 92, MOGAJI v. CADBURY NIG LTD (1985) 2 NWLR Pt 7 pg 393, ADEJUMO v. AYANTEGBE 1989 3 NWLR Pt. 110 pg 417.

It is noteworthy that the land in question is supposed to be a family land, made up of Onasajo branch and Okumala branch. The founders of the family land were Onasajo and Okumala pleaded in paragraphs 23 and 24 of the Amended Statement of Claim and referred to as direct ancestors of the Respondents. In paragraph 27 it was pleaded that Okumala and Onasajo led members of Legunshen family from Offin Homestead to Sagamu to settle along with Akarigbo Igimisoje. Paragraph 29 of the Amended Statement of Claim – that Onasajo and Okumala continued to farm on the vast area of land including the land in dispute, after settling at Sagamu. They were not disturbed on the land before their death.

In paragraph 34 that Buraimoh Awofala who was appointed Chief Legunshen in 1964, had been the head of Legushen family and had been taking care of the land including the land in dispute. That the 1st and 2nd Respondents, both principal members from the two branches of the family, were appointed to sue on behalf of themselves and the entire members of the Legushen family vide paragraphs 1-3 of the Amended Statement of Claim and Exhibit A.

The land as family property was jointly owned by children and grandchildren. The 1st Respondent Taiwo Oluwole, was secretary of the Legushen family, Chief Buraimoh Awofala was head of family from 1955 to 1985 according to P.W.2. He became titled Chief Legusin. The foregoing were Trustees of the land mentioned since the founders of the family land – Okumala and Onasajo. The 1st Respondent gave oral evidence of the history of the land vide pages 26-35 of the record.

At page 99 of the record, the learned trial Judge in his judgment held that:-

“Plaintiffs pleaded traditional history, the Defendants did not. The evidence adduced by the Plaintiffs support the traditional history pleaded by them in that they pleaded communal ownership of the land in dispute right from Okumala and Onasajo to the Plaintiffs.”

It is apparent from the foregoing that individual names of successive children down from their ancestors to the Respondents would not be pleaded – but those of heads of family and any other Trustees because of the communal nature of the family property of Legushen Family. The learned trial Judge believed that the Respondents had proved their traditional Root of Title and that same was conclusive in the circumstance of the case. The Appellants in their defence stated that the land in dispute was bought from Salu Odujukan, who was a deceased chief of the Legushen family.

That Legushen family is the owner of a vast area at Offin Sagamu is therefore not disputed. The weight to be attached to traditional history is left to the experience and wisdom of a Judge who had the unique opportunity of seeing witnesses and watching their demeanour.

AKUNI v. OLUBADAN-IN-COUNCIL 1954 14 WACA 523. This the trial Judge applied and his decision cannot be faulted.

The 2nd issue is the finding of the learned trial Judge that the Respondents merely denied the traditional history without seriously contradicting same. The Appellants found further that the Respondents ought to have denied the averment specifically and that the effect and failure of not specifically denying material averments in the Statement of Claim is that the facts are deemed established vide page 100 lines 27-29 and page 101 lines 1-15 of the Record. In paragraph 1 of the amended statement of defence, the Appellant denied the relevant paragraphs relating to the Respondents’ traditional evidence and same was specifically denied in paragraphs 22, 23 and 24 of the statement of defence. It is settled law that a General Traverse is sufficient to cast on a Plaintiff the burden of proving the allegation denied. The Appellant referred to the cases of UMESIE v. ONUAGULUCHI (1995) 9 NWLR Pt 421 pg 515 at pg 528 OSAFILE v. ODI (1994) 2 NWLR Pt 325 pg 125.

The Appellant further submitted that even if the denials are found by the learned trial Judge not to be sufficient, a declaration of title or of right cannot legally be based on admission in the pleadings of a defendant. BELLO v. EWEKA (1981) 1 SC 101 at 102, OKEDARE v. ADEBARA (1994) 6 NWLR Pt 349 pg 157 at 186, ONU v. AGU (1996) 5 NWLR Pt. 451 pg 652 at 670.

The finding here has occasioned a miscarriage of justice as the learned trial Judge erroneously believed that the traditional evidence of the Respondents, having not been contradicted needed no further proof. The Court is urged to resolve the issue in favour of the appellants.

The respondents replied that the facts pleaded by the Respondents which were not controverted specifically by the Defendants/Appellants have shown that the denials contained in paragraphs 1, 22 and 24 of the amended statement of defence amount to mere denials of the traditional evidence pleaded in paragraphs 3, 6, 7 and 27 of the Amended Statement of Claim pursuant to which this Appeal should be dismissed on this issue. The rule of procedure allows that any of the parties to a Suit may give notice that he admits the truth of the whole or any part of a case stated or referred to in the Writ of Summons, statement of claim, defence or other statement of any other party. Likewise if any Defendant shall admit the claim or any part thereof the court may receive such statement in evidence as an admission without further proof – Section 16 of the High Court Civil Procedure Rules.

By virtue of Section 19 of the Evidence Act, an admission means a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact which is made by a person.

Averments in Pleadings are not evidence – they may be admissions or denials. A court has, to take evidence to support such averments in order to do substantial justice to the parties. The onus is placed upon the Plaintiff to establish his case by credible, satisfactory and convincing evidence based on the Pleadings by preponderance of evidence. Consequently the court does not make a Declaration of Title or any legal right on admissions or in default of Pleadings. If a proper Application for Judgment is made according to the Rules of Court, the Plaintiff will not be entitled to judgment on what was proffered as admissions to prove his claim. MORTUNE v. BALONWU (2000) 5 NWLR Pt 655 pg 87, OGUNLEYE v. AREWA (1960) WRNLR 9, BABAJIDE v. ADISA (1968) 1 All NLR 254, BELLO v. EWEKA (1981) 1 SC 101, MOTUNWASE v. SORUNGBE (1988) 5 NWLR pt. 92 SALU v. EGEIBON (1994) 6 NWLR Pt. 348 pg 23.

The issue of declaration of title in this Appeal cannot be settled on admission by the Appellants, the opportunity has to be extended to the Appellants as Defendants at the trial court to succeed on the strength of their case by adducing cogent and credible evidence to the satisfaction of the court.

On the issues of denial generally or specifically averments in pleadings, a mere denial not only puts a Plaintiff to strictest proof, it calls the Defendant to challenge the issue. The overall effect is that parties joined issue. Pleadings are as directed by the Rules of Court. Order 25 of the Civil Procedure Rules of Ogun State. Rule 6(3) states –

“Without prejudice to paragraph (1) a Defendant in an action for recovery of land shall plead specifically every Ground of Defence on which he relies and a plea that he is in possession of the land by himself or his tenant is not sufficient”.

Order 25 Rule 9 states that:-

“Every allegation of fact in any Pleading not being a Petition or Summons if not denied specifically or by necessary implication or stated to be not admitted in the Pleading of the opposite party shall be taken to be admitted except as against an infant, lunatic, or person of unsound mind not adjudged a lunatic.”

From the foregoing, Respondents’ traditional evidence in respect of their claim to family land were specifically denied in paragraphs 22, 23 and 24 of the Amended Statement of Defence. Issue No 2 is resolved in favour of the Appellant: whether the effect of the finding in this Issue has occasioned a miscarriage shall be resolved under issue no 5.

Issue No 3

This Issue queried the identity of the land in dispute. The Appellants submitted that the Respondents pleaded in paragraph 5 of the Amended Statement of Claim that –

“the land in dispute is situate, lying and being along Onijagba Street Offin Sagamu Ogun State of Nigeria and it is more particularly described and edged ‘Yellow’ on the attached Plan No OG/60/73 dated the 15th day of March 1973 made by Mr. S. Akin Ogunbiyi licensed Surveyor for use in Suit No IRB/35/71 between Chief Buraimoh Awofala on behalf of Legushen family as Plaintiff and Yekini Saka and 2 Others as Defendants”.

The Appellants denied the foregoing. The Respondents also pleaded the boundaries of the land in dispute in paragraph 3(f) of the reply to amended statement of defence as –

1) By Bamwo, Surulere Street on the West

2) Onijagba street on the South

3) Remaining land belonging to the Plaintiffs on the East

4) Remaining land of the Plaintiffs on the North while in paragraph 3(1) they pleaded that the entire Legushen family land is very large and extends from –

(i) GRA Sagamu (called Imure land) on the south and it runs to

(ii) Ijagba/Latuiga community on the North and

(iii) Raniken family near Makun on the West

(iv) Ijoku/Efure community on the East.

Parties relied on the plans Exhibits D and H respectively at the lower court. The onus lies on the Plaintiff who seeks declaration of title to land to establish with certainty and precisely the area of land which his claim relates and if he fails to prove the boundaries or identity of the land in dispute, the claim will be dismissed. The Respondents relied on the evidence of PW1 given under Cross-Examination to establish boundary of the land in dispute, which evidence is at variance with the Pleadings. Exhibit D, the Plan of the Respondents was used in the Suit IRB/85/71 between Chief Buraimoh Awofala & Ors v. YEKINI SAKA & ORS. The area in dispute has not been proved with certainty regardless of Exhibit D. The area verged ‘Red’ in Exhibit D is said to be the area claimed by the Plaintiffs in the 1971 case and by extension the entire Legushen family land according to paragraph 3(1) of the reply to statement of defence. The boundary of the area verged ‘Red’ is at variance with the said paragraph 3(1) of the reply to statement of defence.

The area verged ‘Yellow’ which is the area in dispute in the 1971 – has boundaries which are at variance with paragraph 3(f) of the reply to statement of defence. In spite of these discrepancies the learned trial Judge gave judgment for the Respondents on the area verged ‘Yellow’ rather than holding that the Respondents had failed to ascertain the identity of the land in dispute and to dismiss their case, OJIAKO v. EWURU (1995) 9 NWLR Pt 420 pg 160 at 472. Where a party’s evidence on the issue of boundaries of the land is conflicting and contradictory no reliable tribunal will believe the party.

OLALERE IGE & ORS V. D.A. AKOJU & ORS 1994 4 NWLR Pt 340 pg 535 at 543

ODICHE v. CHIBOGWU 1994 1 NWLR Pt 354 pg 78 at 79

ODOFIN v. AYOOLA (1984) NSCC 711.

b) On the grant of order of injunction by the trial court, the Appellant held that the learned trial Judge was wrong in law to have granted the Order as the area over which the Order of Injunction was granted was clearly not established and ascertained. Injunction can only be granted over definite and precise boundary. The learned trial Judge failed to give adequate consideration to the evidence of possession adduced by both parties. The learned trial Judge failed to make crucial findings that were necessary before he could come to his conclusion on –

(i) whether the Respondents and or their ancestors were ever in exclusive possession of the land

(ii) whether the Appellant ever committed act of trespass that would warrant order of injunction.

The court was wrong in granting an order of injunction against the Plaintiffs in the area edged Yellow in Exhibit D. The Appellants buttressed the foregoing submission with the cases of BELLO V. EWEKA 1981 1 SC 101 ELIAS v. OMO-BARE 1982 5 SC 25, OJIAKO v. EWURU 1995 9 NWLR Pt 420 pg 460 at 472.

The Respondent replied on issue no 3 that the parcel of land identified in the Survey Plan filed by the Respondents before the trial court is the land in dispute. The Appellants would join issue with the Respondents on this parcel of land. The Respondents filed a Composite Plan as pleaded in paragraph 5 of the amended statement of claim at page 4 of the record and same was tendered in evidence. There was a previous litigation on the land in suit No IRB/85/71 between CHIEF BURAIMOH AWOFALA & ORS v. YEKINI SAKA & ORS. Title was awarded to the Respondents in respect of the area verged Yellow in the Composite Plan. Though there were conflicting judgments between the parties herein and their privies the judgment in Suit IRB/85/71 being the last judgment in point of time has created an estoppels against the Defendants/Appellants in the above Appeal that they have no alternative other than to accept the identity of the land in dispute in the previous suit and in this suit as reflected in the Composite Plan filed by the Plaintiffs/Respondents and tendered in evidence in this case at the lower court. The order of injunction made at the lower court is proper and binding. The Composite Plan shows that the land in dispute in the previous case and this case are same parcel of land.

This issue considers that the identity of the land in dispute. Before a declaration of title to land is granted the land to which the claim relates must be identified with certainty. It is therefore the duty of a Plaintiff in a suit for declaration of title to show the court clearly the area of land to which the claim relates.

If it is not so ascertained, the claim, must fail and it must be dismissed. In essence the purpose of ascertaining the exact area of a land in dispute is to enable the parties or anybody claiming through them to know the precise area to which the judgment of court relates for the purpose of enforcement and to obviate the possibility of future litigation on that particular area NWOGO v. NJOKU 1990 3 NWLR Pt 140 pg 570, EPI v. AIGBEDON (1972) 10 SC 53, ADELEKE V. BALOGUN 2000 4 NWLR Pt 65 pg 113, BARUWA V. OGUNSOLA 1938 4 WACA 159. As regards the identity of the land in dispute, the learned trial Judge had ample evidence to hold as both parties tendered their respective Survey Plans. The Survey Plan tendered by the Respondents is marked Exhibit D. The Respondents in their description of the land in dispute in paragraph 5 of their Amended Statement of Claim pleaded:-

“The land in dispute is situate, lying and being along Onijagba street Offin, Sagamu Ogun State of Nigeria and it is more particularly described and edged ‘Yellow’ on the attached plan No OG/60/73 dated the 15th day of March 1973 made by S. Akin Ogunbiyi Licensed Surveyor for the use in Suit No IRB/85/71 between Chief Buraimoh Awofala on behalf of Legunshen family as Plaintiff and Yekini Saka and 2 Ors as Defendants”.

PW3 Ogunbiyi a licensed surveyor tendered the Survey Plan as Exhibit D, drawn at the instance of the Respondents. DW3 Moshood Kolawole Quadri tendered a replica of Exhibit D as Exhibit H during the trial at the lower court. The land subject-matter of the 1971 case and the present case is verged Yellow in Exhibit D and H. PW2 and 2nd Respondent gave evidence and described the land, the Defendant Alhaji Ayuba Odumosu was a witness in the Suit IRB/85/71 and his deceased father Bisiriyu Kadiri before his death in 1973. The learned trial Judge took the tendering of Exhibit H, a replica of Exhibit D as an admission by the Appellants. The tendering of Exhibits D and H and with the land in dispute properly demarcated on them, any conflicting evidence about the boundaries of the land will be cleared. The learned trial Judge held that with the tendering of Exhibits D and H it cannot be said that the land in dispute have not been ascertained. A Survey Plan is of necessity in the case where evidence about boundaries is found to be conflicting ARABE v. ASANLU 1980 5/7 SC 78. This Court agrees with the learned trial Judge that the land in dispute was properly identified.

An appellate court will set aside an Order of Injunction based on a wrong principle of law UNIVERSITY OF LAGOS v. AIGORO 1985 1 NWLR Pt 1 143. An Order of Injunction can only be made in respect of a parcel of land which is properly identified TEBU v. IBEZUE 1999 2 NWLR Pt. 591 pg 437 at pg 448.

As regards the Court’s order of injunction, I have to remark that an Order of perpetual injunction is based on the final determination of the rights of parties and it is intended to prevent permanent infringement of those rights and obviate the necessity of bringing action after; action in respect of every such infringement. Once there is a finding for trespass an injunction must be granted so as to protect the possession in a party. ENANG v. ADU (1981) 11-12 SC 25; ADEGBITE v. OGUNFAOLU (1990) 4 NWLR Pt 146 578.

If the trial Judge gave extensive consideration to issue of possession before his Order of Injunction – vide pages 22-24 of the Record, the Order for Injunction would still have been made in that our law imputes possession to title, anybody who can prove a better title will have an Order for Injunction made in his favour. AROMIRE v. AWOYEMI (1972) SC 1, ADESANYA v. OTUEWU 1993 1 SCNLR pg 77. The Appellant abandoned his claim for Damages for trespass.

Issue No 4

Whether the learned trial Judge could hold that the land in dispute herein is the same as the land in dispute in Suit No IRB/85/71 otherwise called the 1971 case. The learned trial Judge was wrong in holding that the land in dispute in 1971 and the present case are the same whereas the boundaries of the land in dispute as pleaded in both suits are different. The Plaintiffs relied on Exhibit D to support his plea for Res Judicata which was wrong as the Plaintiff cannot be seen as raising a plea that would oust the jurisdiction of court to entertain his action. IKE v. UGBOAJA (1993) 3 NWLR Pt 301 pg 538. Respondents in their quest tendered and relied on Exhibit D the Survey Plan without tendering the Judgment and Proceedings of the Court to which Exhibit D relates. The trial Judge has to examine the judgment and proceedings of the court being a native court so as to determine –

(a) whether there was in fact a judgment

(b) whether there was any relationship between the judgment and Exhibit D

(c) what was the issue litigated in the case

(d) who were the parties in the case.

Without the judgment and the proceedings any finding made by him on the issue of RES JUDICATA would only amount to speculation. OVERSEAS CONSTRUCTION v. CREEK ENTERPRISES LTD 1985 3 NWLR Pt. 13 pg 407; AGHOLOR v. A.G. BENDEL STATE (1990) 6 NWLR Pt 155 pg 141 at 150; ONWE v. THE STATE (1975) 9-11 SC 31 at pg 33. There is evidence that Exhibit H used in Suit No HCJ/46/77 was tendered as Exhibit C therein. That the Plaintiffs in Suit HCJ/46/77 were the Respondents’ predecessor-in-title while the Defendants were privies of the Appellant’s father.

The Appellants’ contention is that the land in dispute in this case is the same as the one in HCJ/46/77 which was dismissed. Failure to make a finding on the issue no doubt made the trial Judge come to a wrong decision, and once the issue has been submitted for consideration it must be considered.

OJUGBUE & ORS v. AJIE NNUBIA & ORS (1972) 1 All NLR Pt 2 pg 664 at 669.

WELLI v. OKECHUKWU 1985 2 NWLR Pt 5 pg 63 at pg 71.

OLUROTIMI v. IGE (1993) 8 NWLR Pt 311 pg 257.

The Respondents confirmed the observation of the learned trial Judge in holding that the land in dispute in IRB/85/71 is the same as the land in dispute in the present case. The Composite Plan shows the boundaries in the two suits. The contention of the Plaintiffs/Respondents in this case at the lower court was that the decision in the said suit No IRB/85/71 has created an estoppel against the Defendants/ Appellants in the above case in re-litigating the issues of title and possession on the land in dispute with the Plaintiffs/Respondents who have obtained a binding judgment against the Defendants/Appellants in this Appeal in the previous case. The Respondents referred to the principle laid down in the case of CARDOSO v. DANIEL (1986) 2 NWLR Pt 20 Pg 1 at pg 7. The Appellants must establish that they have a better title than the Respondents. OJO v. ADEBAYO IGHODALO (1996) 38 LRCC pg 747-758.

There was no specific finding that the land in dispute in IRB/85/71 is not the same as the land in dispute in Suit No HCJ/46/77 in Exhibit C. The land in dispute in this case is not the same as the land in dispute in HCJ/46/77. Following OGUNBIYI v. ADEWUNMI (1988) 5 NWLR Pt 97 pg 215 at pg 222-225 where there are competing claims to possession the issue of title is at stake. The Appellant cannot give the evidence of title which they did not plead in their statement of defence. The Defendants made valid claim with valid Pleadings.”

In the plea of Res judicata raised, the Court intends to consider whether in the suit filed as IRB/85/71 – the land in dispute is similar to the present action on the one hand, and whether the land in dispute in the judgment HCJ/46/77 is the same as the present case.

The provision of Section 54 of the Evidence Act Cap 112 Laws of the Federation 1990 is a codification of the Common Law principle of res judicata. By virtue of Section 54 every judgment is conclusive proof, as against parties and privies of facts directly in issue in the case actually decided by a court and appearing from the judgment itself to be the Ground on which it was based unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is intended to be proved.

MAYA V. OSUNTOKUN (2001) 11 NWLR Pt 723 pg 62,

IJALE V. A.G. LEVENTIS & CO LTD (1965) 1 All NLR pg 176,

LAWAL v. SALAMI (2002) 2 NWLR Pt 752 pg 687

The plea of estoppel operates not only against the parties but also against the jurisdiction of the court itself as it robs the court of its jurisdiction to entertain the same cause of action on the same issues previously determined by a court of competent jurisdiction between the same parties BRUCE-AKUMUGHO v. HARRY 2001 11 NWLR Pt 723 pg 88, MAYA v. OSUNTOKUN 2001 11 NWLR Pt 723 pg 62. The burden is on the party who sets up the plea of res judicata or issue estoppel to establish that all the pre-conditions for its Application exist ADONE v. IKEBUDU (2001) 4 NWLR Pt 733 pg 385 SC.

In view of the judgment of the trial court it is appropriate to distinguish between cause of action and issue estoppel. The classification of estoppel under estoppel by judgment is related to the purpose for which the judgment is used. If it is intended to be used to prevent another suit founded on the same cause of action as the original suit the decision in the original suit is said to constitute Res judicata. If on the other hand, the subsequent proceedings are looked at on a different cause of action, issue estoppel can operate only to prevent certain issues which were decided in the original action from arising for further consideration by the court. UKAEGBU v. UGOJI (1991) 6 NWLR Pt 196 pg 127, FADEORA v. GBADEBO 1978 3 SC 219, ADONE v. IKEBUDU 2001 14 NWLR Pt 233 pg 385.

I shall firstly refer to the contention of the Appellants that the Respondents cannot raise the plea of res judicata as it is a self defeating plea. That the Respondents as Plaintiffs in the trial court were the ones seeking reliefs from that court, and is not expected to say that the same cause of action has been conclusively determined and has merged in the judgment in the previous action. If the type of res judicata relied upon is issue estoppel the proper place for a Plaintiff to raise the question is in the reply to the statement of defence after the issues arising in the case up to the stage of defence would have been ascertained. The plea of estoppel could appear in the statement of claim to found an estoppel by convention. While raised in the statement of claim, it should contain allegation either before or after stating with full particularity the facts and circumstances relied on that the opposite party is estopped from saying or not to be admitted to say. For the Plaintiff to purport to raise issue estoppel by the Statement of Claim without particularity leads to speculation and uncertainty as to what issue the Defendant is precluded from rising. ADONE V. IKEBUDU 2001 14 NWLR Pt 733 pg 385 SC, YOYE V. OLUBODE 1974 10 SC 209, SOSAN V. ADEMUYIWA (1986) 3 NWLR Pt 27 pg 241.

The Respondent raised this in paragraph 15 of the amended statement of claim with particularity. This Court has to determine whether all the pre-conditions to raise the plea have been established. It is however noteworthy that the Appellants equally raised the plea of Res judicata in paragraph 25 of their amended statement of defence.

For the plea of estoppel per rem judicata to succeed the party relying on it must establish the following requirements on preconditions as follows:-

(a) That the parties or their privies are the same in both previous and present proceedings

(b) That the claim or issue in dispute in both action is same

(c) That the res or the subject-matter of the litigation in the two cases is the same

(d) That the decision relied upon to support the plea of estoppel per rem judicata is valid, subsisting and final and

(e) That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction.

Unless the foregoing requirements of the doctrine are fully established, the plea of estoppel per rem judicatam cannot be sustained.

YOYE V. OLABODE (1974) 1 All NLR Pt 2 pg 118

ALASE V. OLORI-ILU (1965) NMLR 66, FADIORA V. GBADEBO 1978 3 SC 219

ADONE V. IKEBUDU (2001) 14 NWLR Pt 733 pg 385

On the other hand, the elements necessary for determining whether issue estoppel is applicable are –

(a) whether the parties in the previous proceedings and the current are the same

(b) whether the issues are material to the cause of action in the previous and in the latter case

(c) whether the issues are the same and

(d) whether that issue has been resolved in the previous case.

IKENI V. ERAMO 2001 10 NWLR Pt 720 pg 1-

A privy is a person whose title is derived from and who claims through a party.

Privies are –

(a) Privies in law

(b) Privies in blood such as blood relations, ancestors, heirs

(c) Privies in estate such as vendors and purchasers of land.

On the part of the Appellants, res judicata is raised in respect of the suit HCJ/46/77 suit No HCS/37/84, 703/56, Appeal No 74/57, IJ/16A/57.

In determining the above and foregoing issues, I have looked into the pleadings, proceedings and judgment in the previous actions. In deciding whether the Respondents could invoke the plea of res judicata before the High Court, I have to examine the judgments in the suits and to see whether the four elements required to sustain res judicata is present. The Respondents tendered the Survey Plan Exhibit D to support this and the record for suit No HCS/37/84. Short of the names of the parties and subject-matter of dispute which would be reflected in the survey plan. It is impossible to make an order in respect of the plea of res judicata without the Judgment and Proceedings of the court. In fact that is the only authentic document to use. I agree with the Appellants that not using the judgment and proceedings of court in IRB/85/71 to determine the issue of estoppel will merely be speculative. It is however noteworthy that the learned trial Judge in Exhibit C concluded that the identity of land verged Yellow which the judgment in Exhibit A was based is not certain – it cannot be said that the land the subject-matter in the judgment IRB/85/71 is the same as the land in dispute HCJ/46/77. It was revealed in the suit HCJ/46/77 that the subject matter in suit IJ/16A/57 is not same as IRB/85/71 – while the land is also different from that considered in the suit HCS/46/77 vide Exhibit C pg 4 Not having the suit IRB/85/71 in this case for inspection in the determination of estoppel, this court cannot therefore raise or consider the plea of res judicata in their favour.

As regards identity of the disputed land – where the Respondents filed a Plan to show the identity of a disputed land that should establish that the land in dispute is ascertainable – unless challenged by the Defendants. Before the Court there is evidence of the Suits between the Respondents or their privies in respect of land claimed by either party – namely suit” No IRB/703/56, IRB/85/71, HCJ/46/77, HCS/37/84. Survey Plans were tendered as Exhibits. In suit Nos IRB/85/71 and HCJ/46/77 and HCS/34/84 Plans No OQ/60/73 made by Ogunbiyi licensed surveyor was tendered. Judgments in suit No HCJ/46/77 and HCS/37/84 are available – HCJ/46/77 tendered as Exhibit C in suit No HCS/37/84. Exhibit C the judgment in HCJ/46/88 shows that the same Plan was used in the suit IRB/85/71 as a copy of the judgment in IRB/85/71 was tendered as Exhibit A in suit No HCJ/46/77 – the Plan used in suit No IRB/85/71 – was used by the Respondents in HCJ/46/77.

Facts before the court about the land in dispute from evidence, of PW2, PW3, judgments of court, and Survey Plans of OG/60/73 about land in dispute show that:-

1) Land in dispute in IRB/703/56 is different from land in dispute in, IRB/85/71, HCJ/46/77 and HCS/34/87.

Land in dispute in IRB/703/56 was larger areas of land verged Green vide the judgment of court Exhibit B in the suit HCS/37/84. The judgment of court in IRB/703/56 remarked that the land in dispute was found to be larger than the plot allotted to Bisiriyu Kadiri the father and successor-in-title of the Defendants/Appellants in Suits Nos. IRB/85/71, HCJ/46/77 and HCJ/34/87.

Legunshen family was advised to reclaim the extra portion. Exhibit E was the Plan used in IRB/703/56. In Suits IRB/85/71, HCJ/46/77 and HCS/37/84 the land in dispute on Plan OG/60/73 Exhibit D is verged Yellow and quite different from the area verged Green claimed in IRB/703/56. The land in dispute in IRB/85/71 and HCJ/46/77 and HCS/37/84 is verged Yellow on the Plan Og/60/73. Coincidentally both parties in suit nos. HCS/37/84 tendered the same plan OG/60/73 drawn by Ogunbiyi, licensed surveyor engaged by the Plaintiffs. The Plaintiffs now Respondents in this Appeal tendered Plan OG/60/73 as Exhibit D and the Defendants now Appellants as Exhibit H. In the suit HCS/37/84 – the Appellants tendered the Plan Exhibit J through their licensed surveyor Mr. Akinlanmi DW3. In explaining the Plan, DW3 said that area verged Red is the area litigated upon in Suit No HCS/46/77 and the area in dispute now. Area verged Blue in Exhibit J is the area litigated upon in IRB/85/71.

Area verged Green in Exhibit H is the area verged Green in Exhibit J. Area verged Blue in Exhibit J is the area verged Yellow in Exhibit H, while area verged Red in Exhibit J is the area verged Yellow in Exhibit H which means that the area litigated upon in HCS/46/77 is the same area litigated upon in this case on Appeal – Suit No HCS/34/87 before the trial court. The Suit IRB/85/71 is not before this Court as Exhibit and this is the case relied upon by the Respondents to raise the issue of estoppel. The learned trial Judge in the suit HCJ/46/77 mentioned that though the Plan shows that the land in dispute as verged Yellow, and is the same as litigated upon in the Suit IRB/85/71, Exhibit C also revealed that the land in dispute in IJ /16A/57 is not same as the land in dispute in IRB/85/71. As to the issue of res judicata though the Plans Exhibit D, H and J show the area in dispute as same in the cases – the judgment in HCJ/46/77 dismissed the case of the Respondents because the land was not properly identified.

Since the identity of the area verged Yellow on which the judgment in HCJ/46/77 is not certain, it cannot be said that the land subject-matter in Suits HCJ/46/77 and HCS/34/87 are same. The plea of res judicata cannot be sustained in respect of the judgment of court in the Suit HCJ/46/77. Plea of Res Judicata made by the Respondents cannot also be sustained due to the lack of the judgment and proceedings in the case IRB/85/71. Finally the case HCS/34/87 was rightly tried on its merit as the land in dispute has been shown to be outside the area litigated upon in Suit IRB/703/56.

Issue NO 5

The Appellants submitted that the learned trial Judge failed to give adequate consideration to the case of the parties in line with MOGAJI & ODOFIN. This Issue queries the evaluation of evidence by the learned trial Judge in the case before him. The Appellants argued that the learned trial Judge exhibited bias in favour of the Respondents in consideration of the five issues for determination posed by him. If the trial Judge had properly considered the effect of ownership of the area verged green on Exhibit D by the Appellants by virtue of the judgment in Suit No. IRB/703/56 and coupled with the Respondents failure to prove the eastern boundary of the said area verged Green, he would have dismissed the Respondents’ case and found for the Appellants. AKINLOYE v. EYIYOLA 1968 NMLR 92. The Appellants came to a wrong decision when they held that the Appellant has not proved any valid sale to Bisiriyu Kadiri (Bisiriyu Ijebu) when the issue is Res Judicata by virtue of the judgment in IRB/703/56. Buraimoh Awofala & ORS V. BISIRIYU & ORS. The present Respondents are privies of Buraimoh Awofala. The learned trial Judge was wrong to have re-opened the issue and found contrary to the one already made in Suit No IRB/703/56. The Appellants concluded that the learned trial Judge did not properly evaluate the evidence. This Issue should be resolved in favour of the Appellants.

In reply to the foregoing, the Respondents argued that whether or not the Legunshen family divested themselves of their title to the land in dispute through sale of a larger piece of land including the land now in dispute to Bisiriyu Kadiri by Chief Saliu Odujukan as pleaded in paragraphs 6 and 7 of the amended statement of defence has to be settled. The Respondents contended that the sale of the land in dispute to the Appellant’s father pleaded in paragraphs 6 and 7 of the statement of defence and oral evidence to confirm same is not binding on the Respondents because

(a) the Appellants did not plead the relationship of the said Saliu Odupitan Odujukan to the Legunshen family.

b) Defendant/Appellants did not plead and prove the relationship of the land sold to Kadiri, Appellant’s father by Odujukan to Legunshen family land

c) The Appellants did not prove that Saliu Odujukan sold the larger piece of land including the land now in dispute to Kadiri with the consent of the Plaintiffs/Respondents and the other members of the Plaintiffs/Respondents family.

The Plaintiffs/Respondents family is not bound by the sale of the land in dispute to Bisiriyu Kadiri the father of the Defendants/Appellants. The Respondent’s family has not divested itself of the title of the land in dispute to the Appellant’s family. The appeal should be dismissed.

On Issue No 5 which attacks the judgment of the lower court, generally speaking, the duty of an Appeal Court is to see whether the trial court had committed some error in its decision which is perverse and once it comes to a decision that the decision is perverse, it must set it aside.

An error is perverse when the gravity of error necessitates that the reversal of the decision of the trial court be done. MOGAJI V. ODOFIN 1978 4 SC 91; QUEEN V. OGODO 1961 2 SC 366; ABISI V. EKWEALOR 1993 6 NWLR Pt 302 pg 643, EBBA V. OGODO (1984) 1 SCNLR 372.

The evaluation of fact of the learned trial Judge in the judgment of the lower court is now being considered. What is evaluation of evidence imports a determination of the value of the evidence before the court. In the evaluation of evidence a trial court must thoroughly examine the evidence before the court before making any decision in a case. The principle governing the evaluation of evidence by trial court is that totality of the evidence should be considered in order to determine which has weight at all. Therefore, in deciding whether a set of facts given in evidence by, one party in a civil case before a court which both parties appear is preferable to another set of facts given in evidence by the other party, the trial court after a summary of all the facts must put two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it. If that supports his case, bearing in mind, the cause of action, it will then find for the Plaintiff. If not, the Plaintiffs’ claim will be dismissed. Thus before the trial court comes to a decision as to which evidence accepts and which evidence it rejects, it should first of all put the totality of the testimony adduced by both parties on that imaginary scale and weigh them together. It will then see which is heavier not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. Finally, after invoking the law, if any, that is applicable to the case the trial court will then come to its final conclusion based on the .evidence which it has accepted. MOGAJI V. ODOFIN (1978) 4 SC 91, KARIBO V. GREND (1992) 3 NWLR Pt 230 pg 426. The Appellants are of the impression that the learned trial Judge did not follow this procedure while arriving at his decision in this case.

He was accused of bias in his approach of the resolution of the issues he formulated to guide him in writing his judgment. His approach was to pick the facts constituting the defence of the Appellant and thereafter destroy them. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a trial court and the Court of Appeal would only interfere with the performance of that exercise if the trial court has made an improper use of the opportunities of hearing and seeing the witnesses and has drawn wrong conclusions from accepted or proved facts which those facts do not support. FASHANU v. ADEKOYA 1974 6 SC 83 JOHN V. BLAKK 2001 10 NWLR Pt 721 OKOYE v. KPAJIE 1973 1 NMLR 84.

After a brief review of the evidence of witnesses who were seen and heard during the court trial, he started evaluation of the facts and ascribing probative value as from pg 14. It is conceded that he started with issue no 3 but then an individual Judge has his or her pattern or style of judgment writing. In essence the court has greater freedom and latitude to choose between conflicting versions and divergent inferences its sole aim being to find out which party’s case preponderates sufficiently to establish the facts in issue. KODILINYE V. ODU 1935 2 WACA 336.

I shall now proceed to summarise the issues raised by the parties and make a finding going by the judgment of the trial court. On the issue of root of title the learned trial Judge found that the Appellants did not prove any valid sale of the land in dispute to their father Bisiriyu Kadiri. The sale of the land to Bisiriyu Kadiri in 1948 by Saliu Odujukan was considered invalid. As Saliu Odujukan was not head but an ordinary member of Legunshen family, such sale cannot be valid without the approval of head of family.

That their evidence was placed alongside that of the Legunshen family who claimed that the land belonged to their ancestors – Onasajo and Okumala by settlement. I have resolved earlier on that the Respondents pleaded their root of title, and lines of succession from their progenitors to the Respondents – being family land it was enough to refer to their trustees of the land the Head of the family – the titled chief and accredited representatives of the family. It is also not in dispute that the Legunshen family had land which they acquired by settlement. The only bone of contention is the land in dispute which they alleged was transferred to the Appellants by Saliu Odujukan in Exhibit B before this Court, a judgment on the land. PW3 alleged that this land and the land in dispute are different. I have no plan of that land as Exhibits so as to identity of the land. There is supposed to be an appeal on this judgment which was not tendered at the lower court. There is no valid evidence of sale either under native law and custom or by conveyance proof of sale and transfer of land are not conclusive. There is no valid evidence or positive admission by the Legunshen family that Saliu Odujukan was head of the family and that he sold the land as head of that family or in his private capacity. The conclusion of the learned trial Judge on the issue of sale is upheld. There are many judgments and Survey Plans; parties disagree on the land in dispute and the location and boundaries. The trial Judge found evidence of first settlement on the land satisfactorily proved before the court and same was accepted, while title to land can be declared on evidence of tradition alone. ODOFIN V. AYOOLA 1984 11 SC 72

OLAYOLE v. OLOJA (1968) NMLR pg 647

ALLI V. ALESINLOYE 2000 6 NWLR (pt 660) pg 177.

Appeals No 74/57 and IJ/16A/57 are not in evidence before this Court. The identity of the disputed land in HCJ/46/77 was not certain. The Respondents established the identity of the land by filing Survey Plans OG/60/73 Exhibit D and the Appellants relied on a replica of the same Plan as Exhibit H.

These Plans were relied on in the 1971 and 1977 and 1984 cases. The lands in dispute are held to be different in both Suits. This Court does not have the 1971 IRB/85/71 Suit tendered, it is therefore impossible to make any findings on same or to consider the plea of Res Judicata on the premises that the 1971 and 1984 cases are similar. Once a Plaintiff filed a Plan, the issue of the identity of the land in dispute will be an issue if and only if the Defendant in the statement of defence makes it one, that is, if the Defendant specifically disputes either the area or size or the location or the features on the Plaintiffs’ Plan.

EZEUDU V. OBIAGWU (1986) 2 NWLR Pt 21 pg 208

The Respondents filed a Survey Plan Exhibit D which put the land in dispute as Yellow. The Appellants by filing the same Plan as Exhibit H cannot be heard to complain about the identity of the land in dispute. Without the 1971 case, it would be an error on the part of the learned trial Judge, to hold that 1971 case is same as the 1984 case. Such pronouncement would be speculative and obviously perverse. Any perverse judgment is prone to be set aside by an appellate court. EFFA V. OGODO (1961) 2 SC 366 MOGAJI V. ODOFIN (1978) 4 SC 91, ABISI V. EKWEALOR 1993 6 NWLR Pt 302 pg 643.

Once an issue has been decided by a court, it cannot be re-opened again. Thus if one party brings an action against another for a particular cause of action and judgment is given upon it there is a strict rule of law that the party cannot bring an action against the order party for the same cause. Estoppel prevents the court from entertaining the same cause of action between the same parties or their privies previously determined by a court of competent jurisdiction. MAYA v. OSHUNTOKUN 2001 11 NWLR Pt 723 pg 62 ADONE V. IKEBUDU 2001 14 NWLR Pt 733 pg 385.

It would amount to a grave error and procedural mistake for the learned trial Judge to re-open an issue already decided by a court of competent jurisdiction. The Latin maxim “Nemo debet bis vexani procadem causa” no one should be sued twice on the same cause on the same set of facts, if there has been a final decision of a competent court. OGUNDIRAN v. BALOGUN 1957 WRNLR 51 SALAMI v. LAWAL 2002 2 NWLR Pt 752 pg 682.

Where a trial court fails in its duty to appraise and evaluate the evidence before it to arrive at the correct decision, the appellate court which hears the Appeal arising from the judgment of the trial court has the duty to ensure that the error of the trial court is corrected by re-evaluating the evidence on Record and entering judgment in favour of the party which succeeds on that evidence.

An appellate court will not interfere with such findings of fact made by the trial court except in the following circumstances:-

(a) where trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial

(b) where the trial court has drawn erroneous conclusion from accepted evidence or has taken an erroneous view of the evidence adduced

(c) where the findings of fact are perverse in the sense that they do not flow from the evidence accepted by it.

OKPIRI V. JOMAH (1961) 1 SCNLR 124

MAJA V. STACCO (1968) 1 All NLR 141

WOLUCHEM v. GUDI (1981) 5 SC 291

EZEANYA v. OKEKE (1995) 4 NWLR Pt 388 pg 142

The learned trial Judge did meticulously consider the facts as adduced and extracted from the evidence of parties and witnesses, whom he had the unique opportunity to hear, see and watch their demeanour. He had also made the correct Application of law where required and necessary before corning to a decision. He had adjudged the parties on their evidence based on preponderance of evidence and balance of probabilities which is the yardstick required to comply with the standard of proof in civil cases. This Court has no logical cause to tamper with his findings and decision.

The Appeal is dismissed. Judgment of the lower Court is affirmed. N5,000 costs is awarded in favour of the Respondents.

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Other Citations: 2002)LCN/1157(CA)