CHIEF MACAULAY AKINDUSOYE v. CHIEF OLUWOLE IKUGBAYIRE & ANOR. (2010)

CHIEF MACAULAY AKINDUSOYE v. CHIEF OLUWOLE IKUGBAYIRE & ANOR.

(2010)LCN/3893(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of June, 2010

CA/I/94/2007

RATIO

DUTY IMPOSED ON THE PERSON WHO ASSERTS

It is trite and in agreement with the learned counsel to the Appellant that he who asserts proves in line with the provisions of Section 139 of the evidence Act. PER CHIDI NWAOMA UWA, J.C.A.

BURDEN OF PROOF: WHETHER A PARTY WHO HAS THE ONUS OF ESTABLISHING A PARTICULAR FACT CAN SAY THAT HIS OWN EVIDENCE IS JUST AS GOOD AS THAT OF HIS OPPONENT

In the case of IGWE v. ALOZIEUWA (1990) 3 NWLR Pt.141 pg735 at 751 it was held by Omosun 3CA thus:- “It is not enough for a party to a case: who has the onus of establishing a particular feet to say that his own evidence is just as good as that of his opponent. What the law says he must do is to discharge the onus of proof on him to prove by evidence which convinces the court or tribunal of the probability of his case rather than that of the opponent on the point in issue. ODIETE v. OKORIE (1973) 1 NWLR 175.” PER CHIDI NWAOMA UWA, J.C.A.

CONSEQUENCE OF NOT PRODUCING A DOCUMENT TO PROVE THE EXISTENCE OF A FACT RELIED UPON

WHETHER IT IS THE DUTY OF A TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO SUCH EVIDENCE; CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WOULD NOT INTERFERE WITH SUCH FINDING OF THE TRIAL COURT

The evaluation of evidence and ascription of probative value to such evidence is the primary function of a trial court, which saw, heard and assessed the witnesses. An appellate court would not interfere with such finding where the trial court has evaluated the evidence and made findings of fact, which are fully supported by such evidence and not perverse. See Agbaje v. Fashola (2008) 6 NWLR (1082) 90 at 153 B-E; Mafimisebi v. Ehuwa (2007) All FWLR (355) 562 at 605. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

JUSTICES

K. M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

CHIEF MACAULAY AKINDUSOYE
(For himself and on behalf of Bagbe Family members) Appellant(s)

AND

1 CHIEF OLUWOLE IKUGBAYIRE
2. OBA ADEGBOYEGA ADESOTE
(THE ELEMEGHA NOROFUNNI OF AIYEDE IKALE) Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivered the Leading Judgment) This is an appeal against the judgment of the High Court, Ogun State, sitting at Ijebu-Ode delivered by O. A. Adesida, J. on Wednesday, 10th day of May, 2006.
The  Appellant as the plaintiff in the lower court took out this action for himself and on behalf of members of Bagbe family by a Writ of Summons dated and filed on the 13th day of December, 2004, claimed against the defendants jointly and severally the following reliefs:-
“(1) A DECLARATION that the plaintiff is the Baale of Bagbe and any purported removal or attempt to remove him is illegal, unlawfully uncommunity null and void.
(2) A DECLARATION that the Community in Aiyede Ikale in Ogun Waterside Local Government in Ogun State bounded by Aiyede Community in one side, bounded by Lawo-Ode Community in the 3rd side and bounded by Gbagada Stream in the 4th side is called Bagbe and not Lapeti Community.
(3) An Order restraining the 2nd defendant from recognizing the 1st defendant as the Baale of Bagbe or any other person as the Baale of Bagbe.
(4) An order of the court compelling the 2nd defendant to release the monthly stipend of the plaintiff from the Local government which the 2nd defendant had withheld for the past six years to the plaintiff.
(5) N1,000.00 being general damages for the embarrassment and inconvenience which the defendants had subjected the plaintiff to.”
At the trial, pleadings were filed and exchanged. In support of his case the plaintiff gave evidence and called a sole witness while each of the defendants testified and called a witness.
The background fact on the part of the plaintiff is that his grandfather was Bagbe who founded a village and named it Bagbe after himself. He had five (5) wives in his life time, and the fifth was called Lapeti, the mother of Omotire, who was the mother of the 1st Defendant. The plaintiff is said to have been the Baale of the village for over (forty) 40 years, was appointed Baale of the village during the reign of the father of the 2nd defendant, was receiving a salary and had a seat at the public sitting as the Baale of Bagbe.
The plaintiff alleged that the village the defendant changed the name of, is the place called Bagbe. It is the case of the plaintiff that the 2nd defendant’s with/move to make the 1st defendant the Baale resulted in the Baaleship tussle in the village.
The defendants contended that the village called Bagbe is no longer in existence as it had been deserted about eight (8) years ago. The 1st defendant claimed the plaintiff was not the Baale and that the members of the community want him (1st defendant) as the Baale. The defendants claimed the place the plaintiff called Bagbe is actually Lapeti from time immemorial.
On the other hand, the case of the Respondents as defendant is that Bagbe and Lapeti are two different and places about 1KM apart from each other. It was contended that the 2nd Defendant/Respondent had neither removed nor attempted to remove the Appellant as Baale of Bagbe and that he the 2nd Defendant/Respondents refuted being liable to pay the Appellant any such damages as neither of them ever embarrassed nor caused the Appellant any inconvenience.
At the close of trial, the learned trial judge dismissed the plaintiff/Appellant’s claims.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 12th day of June, 2006 with seven (7) Grounds of Appeal from which the Appellant formulated four (4) issue for determination as follows:-
“(1) Whether the place which the plaintiff says is Bagbe and the defendants claims (sic) to be Lapeti is Lapeti or Bagbe.
(2) Whether at a point in time there was Baaleship tussle in the village which the plaintiff  called Bagbe and the defendant called Lapeti.
(3) Whether Lapeti exists as a village or not in the history of the area.
(4) Whether there is proper evaluation of evidence of the parties before the claims of the plaintiff was dismissed.”
The respondents on their part adopted the issues as formulated by the appellant.
When this appeal was argued, the learned counsel to the Appellant O. Lemo Esq. adopted and relied on his brief of argument dated 1/8/07, filed on 6/8/07 but deemed filed on 21/1/08 on application; we were urged to allow the appeal. While the learned respondents’ counsel Otunba W.O. Osinusi learned counsel to the respondents adopted and relied on his brief of argument dated 30/4/08, filed on 5/5/08, deemed filed on 22/9/08 on application, having also been filed out of the time allowed by the Rules. We were urged to dismiss the appeal.
In arguing his one, the learned counsel to the Appellant submitted that the trial court who saw and heard a witness give evidence in court is best suited to ascribe probative value to the evidence of such witness and disbelieve others, therefore unless its judgment based on the facts is manifestly wrong, unsound or perverse, an appellate court will not disturb its findings unless it is against well established principles of law to warrant interference. Reliance was placed on the following cases  WICHEGBULE v. WAGBARA (1990) 3 NWLR (Pt.139) PAGE 458 AT PAGES 465-468 and NWACHUKWU v. EGBUCHU (1990) 3 NWLR (Pt.139) PAGE 435, AT PAGE 443. Further, that where the judgment of the trial court perverse, an appellate court has a duty to examine the conclusion and inferences drawn by the court below and re-evaluate the evidence to arrive at its judgment. References was made to the following cases, EKWEALOR v. OBASI (1990) 2 NWLR (pt.131) AT 231, KALEJAIYE v. OGUNDARA (2002) (pt.85) page 297 and OZOKPO v. PAUL (1990) 2 NWLR (pt.133) PAGE 494.
In urging us to disturb the findings of the trial court, we were referred to the pleadings and oral evidence adduced before the court, particularly, in the statement of claim, paragraphs 10, 11, 12, 13, 14, 15 and 16 and Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’ in support of the claims. The case of the plaintiff being that Lapeti does not exist, and in oral evidence that the village in dispute was founded by Bagbe, and apart from Bagbe the village has no other name shown by Exhibits ‘A’ – ‘F’. Reference was made to the oral evidence of the plaintiff (PW1) at pages 17-19 and the reply to the Statement of Defence of the defendants at page 12, particularly paragraphs 2(i) – (iv) and 8 where the plaintiff denied the existence of any place called Lapeti in the area.
We were also urged to look discretely at the Statement of Defence, paragraphs 2, 3,16,18,19 and 24. It was argued that the evidence of the defendants was at variance with their pleadings and that there was no evidence adduce before the trial court to believe that there is a place called Lapeti in the area. It was argued on the other hand that the plaintiff alleged that the place where the plaintiff and the 1st defendant live is known as Bagbe and gave oral evidence to that effect and tendered Exhibits ‘A’- ‘G’ to prove it, having said that the area is called Bagbe and in line with Section 139 of the Evidence Act.
It was submitted that the onus was on the defendants who claim that Lapeti exists to prove its existence and not the Plaintiff and that the defendants failed to do so. Further, that the learned trial judge was in error when he held that Bagbe exists and Lapeti exists when the defendants failed to produce evidence to prove the existence of Lapeti. We were urged to hold that Lapeti does not exist contrary to the evaluation and decision arrived at by the learned trial judge, we were urged to allow the appeal on this ground.
In response to the Appellant’s first issue, the learned counsel to the Respondents referred to paragraph 24 of their statement of defence where it was pleaded that Bagbe and Lapeti are two different and distinct places and gave the boundaries of Lapeti as being bounded by Surulere Camp in the front, by Epe Farmland at the back, by Aiyede Community Farmland on the right and Ajegunle Farmland on the left, page 11, lines 27-31 of the printed records. It was argued that the evidence of the 1st Respondent and the 2nd Respondent at page 27 of the records corroborated the description and boundaries of Lapeti as stated in their Statement of Defence, Page 25 lines 27 – 29 of the Records. This was in contrast with the boundaries as given by the Appellant in ‘respect of Bagbe, when he agreed with the boundaries of Lapeti as given by the Respondents, quite different from those of Bagbe as given by the Appellant, page 21, lines 5 – 7 of the records. It was argued that this contradiction on the part of the Appellant shows clearly that Bagbe and Lapeti are two different and distinct areas as made out by the Respondents.
It was submitted that the onus was on the plaintiff to prove with certainty and precision the identity of the land to which his claims relate.
The case of ILONA v. IDAKWO & ANR. (2003) 14 NSCQR (pt.2) PAGE 1015 PARAGRAPH 7 was cited and relied upon. Further, that the plaintiff failed to discharge the onus and was therefore not entitled to the declaration sought in the 2nd relief and that the trial court was right in dismissing the claim.
We were urged to hold that the place the Respondents called Lapeti is Lapeti and resolve the 1st issue against the Appellant in favour of the Respondents who did not claim Lapeti and Bagbe are one and the same place.
We were urged to uphold the judgment of the trial court and resolve the first issue against the Appellant.
On the Appellant’s issue two, the learned Appellant’s counsel submitted that the crux of the Appeal is whether the learned trial judge ought to dismiss the 1st relief of the plaintiff’s in view of its finding that the plaintiff is the Baale of Bagbe. The question posed by the learned counsel was whether there was a Baaleship tussle at anytime in the village called Bagbe by the plaintiff which the defendants call Lapeti? In answer, reference was made to the statement of claim, paragraphs 18, 19, 20, 21, 22 and 23 in arguing that the major complaint of the plaintiff against the defendants is their challenge of his Baaleship. Also, referred to is the evidence of the Plaintiff in support of the above pleadings at page 17, lines 5-15 of the records. It was argued that the defendants joined issue with the plaintiff concerning the Baaleship in their paragraph 1 of their Statement of Defence, in which paragraphs 8, 19, 20, 21, 22 and 23 of the plaintiffs Statement of Claim was denied. Also, that paragraphs 13, 14, 15 and 16 showed that the defendants did not accept the plaintiff as the Baale of Bagbe Reference was made to the plaintiff’s reply to the Statement of Defence paragraph 2 and page 12 lines 18-40 of the records where he claimed that Bagbe village exists and has not been deserted as claimed by the defendants.
It was argued that, the learned trial judge having found that Bagbe village is not defunct and that the plaintiff is the Baale, the learned trial judge ought not to have dismissed the first relief. Reference was also made to page 26, lines 1 – 2 of the records where the 1st defendant is said to have admitted that there was a Baaleship tussle between him and the plaintiff. It was the submission of the learned counsel that had the learned trial judge properly evaluated the evidence before the court he would not have held that Lapeti exists and Bagbe exists.
Further that the 1st and 2nd defendants and their witness denied the existence of Bagbe village and in an answer to a question put by the court, the 2nd defendant stated that Bagbe is not defunct.
We were urged to hold that the Baaleship of the plaintiff was challenged by the defendants, and the holding that since the 2nd Defendant denied removal of the plaintiff under cross examination, there was nothing for the court to declare in relief one.
In response to the Appellant’s issue two, the learned counsel to  the Respondents stressed that Bagbe and Lapeti are two different places about one kilometer apart while the Plaintiff/Appellant contends that the place he calls Bagbe is what the Defendants called Lapeti.
It was argued that, it was not proved before the trial court that there was Baaleship tussle in Bagbe but rather that the Appellant as plaintiff wanted to extend his Baaleship authority to Lapeti to which Lapeti people refused reference was: made to the evidence of the 2nd Defendant/Respondent, the Traditional Ruler of Aiyede, at page 28 lines 19 – 22 of the records. It was contended that there was never a Baaleship tussle at Bagbe we were urged to resolve this issue against the Appellant.
On the Appellant’s third issue, it was contended that no where throughout the case of the plaintiff in his pleadings or oral evidence did the plaintiff agree that Bagbe and Lapeti are one and the same village, contrary to the findings of the learned trial judge that it is the plaintiff’s case that Bagbe and Lapeti are one and the same village. The plaintiff insisted that there is not village in the area called Lapeti except when the defendant wanted to remove the plaintiff a Baale that the defendant made efforts to rename Bagbe as Lapeti village.
It was argued that for the learned trial judge to decide that Lapeti exist there ought to be evidence other than oral which the court relied in attaching weight to the evidence of the defendants to the effect that Lapeti  is a distinct village different from Bagbe.
It was the contention of the Appellant that a place could be known by two different names, in arguing that it is the same place called Bagbe the respondents called Lapeti which arose from a recent Baaleship tussle.
It was argued that the only question the trial court ought to have determined under this issue is whether Lapeti existed in the history of the area as a village or not, of it is Bagbe the defendants tried to change to Lapeti as a result of the Baaleship tussle? Reference was made to the evidence of the 1st and 2nd defendants under cross examination to the effect place has been abandoned, pages 26 – 28 lines 4 – 5 and 10 – 25 respectively. It was argued that since the learned trial judge found that Bagbe is still existing contrary to the claims of the defendants the court ought to have held that there is no place called Lapeti.
In response to the Appellant’s third issue, the learned counsel to the Respondents referred to paragraph 24(2) of the Plaintiff/Appellant’s Statement of claim, page 6 lines 17 – 22 of the records as opposed to the Defendants/Respondents paragraph 24 of their Statement of Defence which showed that the boundaries of Bagbe as given by the Appellant on one hand and the boundaries of Lapeti as given by the Respondents on the other hand are not the same. Epe Farmland and Surulere Camp are not two of the boundaries of Bagbe as given by the Appellant but two of the boundaries of Lapeti as given by the Respondents.
It was submitted that the Appellant contradicted himself on the boundaries when he agreed with the boundaries of Lapeti as given by the Respondents, different from those of Bagbe, page 21 lines 5 – 7 of the records. It was argued that this confirms that Bagbe and Lapeti are two different places as held by the learned trial judge.
Further, that the evidence of DW1, DW2 and DW3 at pages 25 – 27 of the records confirmed that Lapeti had existed in the history of the area and not a recent claim as asserted by the Appellant. We were urged to resolve this issue in favour of the Respondents against the Appellant.
On the Appellant’s fourth issue, it was submitted that the learned trial court was in error when it rejected an important document which would have shed light in determining whether the village in which both the plaintiff and the 1st Defendant live is called Bagbe or Lapeti, that is the tax receipt of the 1st Defendant/Respondent on the basis that it was not pleaded. The Appellant had contended that the tax receipt obtained by the 1st Defendant before the Baaleship tussle, bore the name Bagbe contrary to the claim of the Defendants/Respondents that the name of where the 1st Defendant and the Appellant live is Lapeti. It was argued that since issues were joined on this point, facts that would discredit the parties needed not be pleaded.
Similarly, that the judgment of Abigi Court pleaded in paragraph 11(xiii) of the Statement of Claim ought not to have been rejected by the trial court, to show that Bagbe had always been the name of the village, the Appellant having earlier obtained a judgment against another person.
It was submitted that the learned trial court having declared the plaintiff as Baale of Bagbe as sought and having found that Bagbe exists as opposed to the claim of the Defendants that Bagbe has become defunct ought not to have dismissed the plaintiff’s 1st relief sought. Finally, that the teamed trial court ought not to have held that the plaintiff as Baale of Bagbe should have been attending the meetings whether he was invited or not and see whether he would be turned back when it was possible to have attended, when he was not given Notice of Meetings and public sittings, without the Notice would not know about the meetings and public sittings, since in the past he would be given the Notice preceding such meetings. We were urged to examine the evidence before the court and allow the appeal.
In respondent to the appellant’s fourth issue the learned counsel to the respondent submitted that the learned trial judge properly appraised and evaluated the evidence before the court before dismissing the Plaintiff/Appellant’s claims. It was submitted that the onus was on the plaintiff claiming for himself and on behalf of his other siblings to prove with certainty the identity and/or area of the land to which his claim relates.
Further, that the Appellant did not prove that the 2nd respondent withheld his stipends for six years. Also, that the case of the Appellant is contradictory as to when he became Baale of bagbe  and as to the identity an boundaries of Bagbe through his evidence and that of PW2. It was argued that the learned trial Judge’s decision was based on the evidence before the court, therefore that this court has no jurisdiction to interfere with the decision. The case of OWIE v. IGHIWI (2005) 21 NSCQR Page 207 at Page 212 Paragraph 12 and page 232 was cited and relief upon.
We were urged uphold the judgment of the trial court and dismiss the appeal. I will resolve the issues as raised by the Appellant, and adopted by the respondent. In respect of the Appellant’s first issue, while the Appellants case is that the village in dispute is called Bagbe after the founder and no Lapeti (or any other: name) as claimed by the Respondents who contended that Bagbe is no longer in existence having been deserted. The Respondents claim Lapeti is located about one kilometer away from the place the Appellant called Bagbe, and that Lapeti is quite distinct from Bagbe village. In proof of his assertion that the village is Bagbe and has no other name, the Plaintiff/Appellant in support of his pleadings in paragraphs 10 – 16, tendered Exhibits ‘A’ – ‘G’ as PW1, pages 17 – 19 of the records. Exhibit -A’, dated 30th June, 1987 is a Notice of Meeting of Obas Regents, Baales and Chiefs of Arijan from Ijebu East Local Government addressed to “The Baale, Bagbe (Mr. Macaulay Akindusoye)”.
I will hereunder list the documents tendered and admitted in evidence before the trial court to confirm the Plaintiff’s Claims, the documents were all addressed to the Plaintiff as Baale of Bagbe, they are:-
1 Exhibit ‘A’ – Notice of Meeting from Ijebu East Local Government dated 30/6/87.
2. Exhibit ‘B’ – Notice of Meeting from Ogun Waterside Council of Traditional Rulers dated 31/7/97, Ref. No. OGWLG/CTR/06/A
3. Exhibit ‘C’ – A letter from H.R.H. Lt. Col. Adegboyega Adsesote, FSS (Rtd.) (The 2nd Respondent) dated 6/12/95  demanding subscription into the Awujale’s Palace Endowment Fund.
4. Exhibit ‘D’- Notice of meeting dated 10/1/98 from Ogun Waterside Council of traditional Rulers dated 10/1/98.
5. Exhibit ‘E’ – Invitation to the swearing in ceremony of newly elected Councilors, from Ogun Waterside Local Government Abigi, Office of Sole Administrator dated 21/3/97.
6. Exhibit ‘F’ – A Palace Summons to attend Court at Aiyede-Ikale from H.R.H. Oba Lt. Col. Adegboyega Adesote, FSS (Rtd.) dated 26/7/98.
7 Exhibit ‘G’ – A letter from Ogun Waterside Local Government, Abigi, Ref. No. OWLG.571/22 dated 12/6/96 appointing the Plaintiff as Committee Member in a land dispute settlement between Ajegunle and Aiyede indigenes.
All these Exhibits were made before the Writ was taken out on 13th December, 2004.
The 2nd Respondent as DW2 testified that he recognized the Appellant as Baale. He admitted making Exhibits ‘C’ and ‘F’ addressed to the Baale of Bagbe, at page 30 of the records, he testified as follows:-
“I recognize him as Baale…………….I have seen Exhibits ‘C’ and ‘F’, they are of my own making.
They are written to Baale of Bagbe. I did not write any document to anybody at Lapeti……..there  has been no Baale at Lapeti……………. I met Plaintiff as Baale of Bagbe when I assumed office, but Bagbe is not what is now known as Lapeti.”
From the Appellant’s pleadings and evidence before the trial court, it is clear that Bagbe exists and the Baale is the Plaintiff which the 2nd Respondent acknowledged.
But in the Respondents’ Statement of Defence as defendants, paragraphs 2, 3, 6, 18 – 19 and 24- averred that Bagbe village is non existent and deserted; and that Lapeti is a different place which the Appellant attempted renaming Bagbe   with the intention of extending his Baaleship there. The Respondents went further by giving the Lapeti borders in paragraph 24 of their Statement of Defence. The Respondents also pleaded how Lapeti acquired its name, after the 5th wife of Bagbe, the grandmother of the 1st Defendant/Respondent.
Apart from the averments, no evidence was led before the trial court to confirm the assertion of the Respondents that there is a place called Lapeti in the area of the land in dispute.

It is trite and in agreement with the learned counsel to the Appellant that he who asserts proves in line with the provisions of Section 139 of the evidence Act.

The Respondents failed though evidence (apart from oral) that the plaintiff have moved from Bagbe to another place, that his father was not born there and that he (Plaintiff/Appellant) and 1- Respondent do not still live there.
The onus of proving the existence of Lapeti is on the Respondent who claim that Lapeti village exist. There was no documentary evidence of any form to show that Lapeti exist. Whereas, on the part of the Appellant to documentary evidence earlier highlighted is overwhelming, confirming the existence of Bagbe. He who asserts must prove, since the respondents assert that Lapeti exist, then it is up to them to prove same. In the case of IGWE v. ALOZIEUWA (1990) 3 NWLR Pt.141 pg735 at 751 it was held by Omosun 3CA thus:-
“It is not enough for a party to a case: who has
the onus of establishing a particular feet to say
that his own evidence is just as good as that of his opponent. What the law says he must do is to
discharge the onus of proof on him to prove by evidence which convinces the court or tribunal of the probability of his case rather than that of the opponent on the point in issue. ODIETE v. OKORIE (1973) 1 NWLR 175.”
Further, the 1st defendant/Respondent under cross examination at page 26A of the records testified as follows:-
“The place I call Lapeti is Lapeti and it is not Bagbe and not Bagbe (sic). The place I live Lapeti (sic) and it is still there, I have a document which I can produce to show that Lapeti is there.
Lapeti has been so named since it was founded many years ago. If we got to Lapeti today (sic), there are houses there. They are many. They are more than 17 houses there today …………………. I was born in Lapeti but my father is from Ajegunle.
(Undefined mine for emphasis)

The document which the 1st defendant as DW1 said he could produce to show that Lapeti exists was never produced by the DW1 or any of their witnesses. No explanation was given for the absence of such document and I am only left with the view that there is no document which the Respondents could produce that would show the existence of a place called Lapeti, this explains the non production of such document. On the other hand, if any existed and was withheld, it is the law that if such document was produced it would have been unfavourable to the case of the Respondents. See: UNION BANK OF NTG. V. NNOLI (1990) 4 NWLR (PART 145 (PAGE 530, DADO v. NUMSHUWAN (1991) 8 NWLR (PART 212) 696 and JALLCO LTD. AND ANOR. v. OWONIBOYS TECH. SERV. LTD. (1995) 4 NWLR (PART 391) 534- In the present case there was no evidence put forward by the defendants before the trial court to establish that Lapeti exists. The learned trial judge found that “Bagbe and Lapeti are different villages”, page 78 of the records, with respect, in my considered view the learned trial judge was in error when he made such finding that Lapeti exists as well as Bagbe. The existence of Lapeti is not supported by any evidence and I so hold.
The learned trial judge also confirmed the existence of Bagbe village when he held at page 77 of the Records; thus:
“I find as a fact that Bagbe village or camp existed from time immemorial up till now and that the Plaintiff is the Baale of Bagbe village and that plaintiff is recognised (sic) by the 2nd defendant.
Exhibits A-G which were letters written by the 2nd defendant and the Abigi Local Government to the Plaintiff lent credence to my finding of fact.
From the above finding by the learned trial court, it is clear that the village of Bagbe exists and the Plaintiff/Appellant is the Baale of Bagbe also recognized by the 2nd defendant whose evidence I earlier reproduced (page 30 of the records) where he clearly stated that he recognized the Appellant as Baale of Bagbe to whom he wrote Exhibit ‘C’ and ‘F’ and dearly stated that same letter and/or summons was not written to anybody at a place supposedly called Lapeti.

In resolving the first; issue in favour of the Appellant, I hold that the area in dispute is Bagbe and not Lapeti.
The second issue is as to whether there was Baaleship tussle in the village the plaintiff called Bagbe and the defendants called Lapeti. Having held in resolving issue one, that there is no place called Lapeti in existence the issue of the Baaleship of Lapeti does not now arise. Similarly, there is no evidence to show that; there was a Baaleship tussle in Bagbe. The Respondents as defendants acknowledged the Appellant as the Baale of Bagbe so did the teamed trial judge, earlier reproduced in this judgment.
Resolution pf the first issue has also resolved the third issue, that is, to the effect that Lapeti does not exist as a village.
In resolving the fourth issue, as to whether there was proper evaluation of evidence before the trial court dismissed the claims of the Plaintiff. The trial court found that the village of Bagbe exists and the Plaintiff is the Baale. This is what the Appellant sought in his relief ‘1’ before the trial court. The natural sequence following the above finding would have been the grant of the first relief, the failure to do so by the learned trial court is, in my considered opinion perverse and must therefore be disturbed. See the cases of EKWEALOR v. OBASI (1990) 2 NWLR (Pt.131) at 231 and OZOKPO v. PAUL (1990) 2 NWLR Pt.133 pg 494 cited and relied upon by the learned counsel to the Appellant. Relief ‘1’ ought to have been granted by the learned trial court.
Similarly, the plaintiff having established that the area in dispute is Bagbe and not Lapeti relief ‘2’ also ought to have been granted.

With the third relief, there is nothing on record to show that the 2nd defendant/Respondent conferred Baaleship on the Ist defendant or anybody else as Baale of Bagbe. The issue of the conferment or recognition of the 1st defendant/Respondent as Baale of Bagbe does not arise, it is speculative.
The Court cannot grant a restraint order against the 2nd defendant as rightly held by the learned trial judge.
In respect of relief ‘4’, it is on record that it is the Local Government that pays the stipend due’ to the Baale. The Appellant did not lead evidence to show that the 2nd Respondent collected what was due to him (Appellant) from the Local Government and/or Ijebu Traditional Council and withheld same for the six year period when he did not received his stipend, the learned trial court was right in dismissing this relief, not having been proved.
With the fifth relief sought, the Appellant failed to establish through evidence, the embarrassment and inconvenience he was subjected to, for him to be the award of general damages.
The end result is that the appeal succeeds in part.
The order of dismissal of the learned trial judge in respect of reliefs ‘1’ and ‘2’ in the plaintiff’s writ of summons and statement of claim, in its judgment delivered on the 10th day of May, 2006 in suit No. HCJ/175/2005 is hereby set aside. In its place, I hereby grant reliefs one and two as per the plaintiff’s writ of summon and statement of claim.
The orders made by the learned trial judge, O.A. Adesina, J. of Ogun State High Court sitting at Ijebu-Ode in respect of reliefs ‘3’, ‘4’ and ‘5’ are hereby affirmed.
I award costs of N30,000.00 to the Appellant.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment just delivered by my learned brother, C. N. UWA, JCA. I agree entirely with the reasoning and conclusions therein.
By paragraph 24 of his. statement of claim dated 9/12/04 at page 6 of the record, the appellant, as plaintiff sought the following reliefs:-
1. A declaration that the Plaintiff is the Baale of Bagbe and any purported removal or attempt to remove him is illegal, unlawfully unconstitutional null and void.
2. A declaration that the community in Aiyede Ikale in Ogun Waterside Local Government in Ogun State bounded by Aiyede Community in one side, bounded by Ajegunle Community in the second side, bounded by LOWO-Odo Community in the 3rd side and bounded Gbagada Stream in the 4th side is called Bagbe and not Lapeti Community.
3. An order restraining the 2nd defendant from recognizing the 1st defendant as the Baale of Bagbe or any other person as the Baale of Bagbe.
4. An order of the court compelling the 2nd defendant to release the monthly stipend of the plaintiff from the Local Government which the 2nd defendant had withheld for the past six years to the plaintiff.
5. N1,000,000.00 being general damages for the embarrassment and inconvenience which the defendants had subjected the plaintiff to.
By their Statement of Defence at pages 9-11 of the record, the Respondents averred that Bagbe is not a village but a camp and that its inhabitants, including the appellant had moved to Lapeti, a nearby village for greener pastures. They contended at the trial that Bagbe is now deserted and that the appellant sought to rename Lapeti as Bagbe and to impose himself on Lapeti as its Baale. It was their contention that Lapeti and Bagbe are two separate and distinct places.
In his reply to the Statement of Defence at pages 12-15 of the record the Appellant maintained that there is no camp or village called Lapeti in the area.
By virtue Section 136-137 of the Evidence Act, the appellant had the burden of establishing his claim before the court. If he was able to make out a prima facie case, the burden would shift to the Respondents to disproved claims, in this case by showing through credible evidence that Bagbe no longer exists while Lapeti does.
After considering the oral and documentary evidence before the court the learned trial judge held at page 77 of the record:-
“I find as a fact that Bagbe village or camp existed from time immemorial up till now and that the
plaintiff is the Baale of Bagbe village and that the Baale is recognized by the 2nd defendant Exhibits A-G which were letters written by the 2nd Defendant and the Abigi Local Government to the Plaintiff lent credence to my finding of fact.”
There is no doubt from the pleadings and the evidence led in respect thereof that there was an issue in contention between the Appellant and the 1st Respondent as to the legitimacy of the Appellant’s claim to be the Baale of Bagbe. Mot only did the 1st Respondent contend that Bagbe no longer exists, he pleaded and testified that while the people of Lapeti want him (1st Respondent) as their Baale, the appellant is trying to impose his Baaleship of Bagbe on Lapeti.
The evaluation of evidence and ascription of probative value to such evidence is the primary function of a trial court, which saw, heard and assessed the witnesses. An appellate court would not interfere with such finding where the trial court has evaluated the evidence and made findings of fact, which are fully supported by such evidence and not perverse. See Agbaje v. Fashola (2008) 6 NWLR (1082) 90 at 153 B-E; Mafimisebi v. Ehuwa (2007) All FWLR (355) 562 at 605.

I am of the view that the learned trial judge having found as a fact that the appellant was and remains the Baale of Bagbe and having found that Bagbe exists as claimed by the appellant, and in the absence of any documentary evidence to support the 1st Respondent’s contention that Lapeti exists as a separate village, the learned trial Judge ought to have granted the appellant’s prayers 1 and 2. The Appellant was able to establish: his entitlement to the said reliefs upon a preponderance of evidence. The dismissal of prayers 1 and 2 in the face of the evidence adduced and accepted by the court in respect thereof was therefore perverse and this court has a duty to interfere with that decision.
For these and the more detailed reasons contained in the lead judgment I also allow the appeal in part. I abide by all the consequential orders made therein including the order as to costs.

MODUPE FASANMI, J.C.A: I have had the advantage of reading the judgment of my learned brother C. N. Uwa J.C.A.
The issues have been comprehensively and adequately dealt with. I agree with the reasonings and conclusions reached therein. The appeal succeeds in part. I also abide by the consequential orders made.

Appearances

O. LemoFor Appellant

AND

Otunba W. O. OsinusiFor Respondent