MADAM MUIBAT ATINUKE OLUDE v. MR. S. A. ADEESO (2015)

MADAM MUIBAT ATINUKE OLUDE v. MR. S. A. ADEESO

(2015)LCN/7984(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of August, 2015

CA/I/221/2007

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A CIVIL SUIT

It is trite that the burden of proof in a civil suit or proceeding lies on that person who fail if no evidence at all were given on either side.
See Section 132 of the Evidence Act 2011 as amended.
Further to the foregoing Section is Section 133 (1) which dictates the party on whom the burden of proof lies. I reproduce herein below Section 133 (1) of the Evidence Act.
Section 133 (1)
“In civil cases, the burden of first proving existence or non existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleading”.
It is therefore suffice to say that in civil cases, the phrase “Burden of Proof” has two distinct connotations. The first is that it may mean the burden of proof as a matter of law and pleadings. This is called the legal burden – See Kala v. Potiscum (1998) 3 NWLR (Pt. 540) 1. This first condition has been satisfied by both parties in that pleadings were settled and the matter was instituted in compliance with the law. The second aspect is the burden of proof which would come by way of evidence. This is what is referred to as Evidential Burden – See the cases of Ezemba v. Ibeneme (2004) 7 SC (Pt. 1) 45, Daodu v. N.N.P.C. (1998) 2 NWLR (Pt. 538), Itauma v. Akpe-Ime (2000) 7 SC (Pt. 11) 24, Audu v. Guta (2004) 4 NWLR (Pt. 864) 463 and Mani v. Shanono (2006) 4 NWLR (Pt. 969) 132.
It is trite that this onus of proof placed on the plaintiff never shift until he has discharged the burden then the onus would now shift on the defendant to defend what has been asserted. See the cases of Iman v. Sheriff (2005) 4 NWLR (Pt. 914) 80 and Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 65. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

AGREEMENT; WHETHER PARTIES ARE BOUND BY AGREEMENT FREELY ENTERED INTO BY THEM

Parties are bound by agreement freely entered into by them. See the case of Okonkwo v. CCB (Nig.) Plc (2003) 8 NWLR (Pt. 822) page 382. The court would not hesitate to give force of Law to such agreement. See the case of U.B.N. Ltd. v. Ozigy (1994) 3 NWLR (Pt. 339) page 385 and Amede v. U.B.A. (2006) 8 NWLR (Pt. 1090) pg. 623 at 659-660. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

PRACTICE AND PROCEDURE; CONSENT JUDGEMENT; WHEN DOES CONSENT JUDGEMENT ARISE
It is trite that a consent judgment arises when parties unequivocally agree to terms of settlement as in the instant appeal and which they mutually refer to the court as basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation – See the case of Adedeji v. Oloso & Anor (2007) 1-2 SC 76. per. MUDASHIRU NASIRU ONIYANGI, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

MADAM MUIBAT ATINUKE OLUDE
(NEE ALAMU)
For herself and on behalf of the Estate of Madam Mobonike Alamu Appellant(s)

AND

MR. S. A. ADEESO Respondent(s)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): In his Further Amended Statement of Claim of 32 paragraphs the respondent in this appeal who was the plaintiff at the court below (High Court of Oyo State, Ibadan Judicial Division Holding in Ibadan) claimed against the appellant who also was the defendant before that court as follows:

Paragraph 32:
(i) Where upon the plaintiff claims against the defendant as follows:
(i) Declaration that the plaintiff is entitled to revoke the permission granted to the defendant through his predecessor to use the portion of the frontage of the plaintiff’s land at Alamu Village, Apata-Ganga, Ibadan in judgment of the High Court, Ibadan on 15th February, 1983 OLAYEMI v. MADAM MOBONIKE ALAMU.
(ii) Declaration that the permission granted to the defendant through his predecessor to use the portion of the frontage of the plaintiff’s land at Alamu Village, Apata-Ganga, Ibadan in the judgment of the High Court, Ibadan on 15th February, 1983 in Suit No. I/126/81 J.S.A. Olayemi v. Madam Mobonike Alamu has been forfeited.
(iii) Order of Court granting possession to the plaintiff of all the piece or parcel of land upon which the defendant has erected structures in the frontage of the plaintiff’s land (property) at Alamu village, Apata-Ganga, Ibadan as shown in the Survey Plan already filed by the plaintiff in this Honourable Court”.

IN THE ALTERNATIVE

(1) “Order of Court permitting the plaintiff to remove all the structure erected by the defendant in the frontage of the plaintiff’s land (property) at Alamu village, Apata-Ganga Ibadan as shown in the survey plan, already filed in this Honourable Court.
(2) Perpetual Injunction restraining the defendant, his agents, servant and or privies from further trespass on any portion of the plaintiff’s land described above”.

In order to establish the foregoing claims, the respondent gave evidence and called four witnesses. The appellant did not give evidence but called 3 witnesses in his defence.

In summary the fact of the respondent’s case before the lower court is that by virtue of a deed of lease by an indenture dated 22nd day of January, 1955 and registered as No. 63 in Volume 87 of the Land’s Registry at Ibadan. The said indenture was created by Akinola Alamu of Oke-Foko, Ibadan a leasor and one George Norman Herrington an expatriate who was an Agriculture Officer employed by the government of the then Western Region of Nigeria and working at the Moor Plantation Ibadan.

The term created by the lease was for seventy five (75) years at a rent of fifteen pounds per annum. The said contract of lease was with the consent of the Olubadan and his Chiefs and equally approved by the Minister for Land, Western Region.

When the expatriate was leaving for his home country, a deed of assignment for the residue of the 75 years lease was created in favour of James Solomon Adegoroye Olayemi dated 20th July, 1971, and registered as No. 1 at page 1 in Volume 1298 of the Land Registry, Ibadan for a term of about forty nine more years to run. James Solomon Adegoroye Olayemi upon appeal by Akinola Alamu surrendered the residue of the said term of years to the said Akinola Alamu vide a deed of surrender dated 3rd day of January, 1973 and registered as No. 29 at page 29 in volume 1393 of the Land Registry Ibadan. The land comprised 3.374 Acres or 1.35 Hectares.

Madam Mobonike Alamu (deceased) was one of the principal members of the Alamu family who participated in the execution of the Deed of conveyance was said to have trespassed into the land conveyed to Adegoroye Olayemi by erecting shops on the said land. Hence Olayemi instituted the Suit Number 1/216/81 against Madam Mobonike Alamu alleging act of trespass. Parties agreed to settle the matter amicably and have the Term of settlement dated 4th February, 1983 executed. (See page 10 of the Record of Appeal). Consequent upon the terms of settlement, the Court entered judgment as per the terms contained in the Terms of Settlement (See page 138 and 139 of the Record).

The same piece of land was acquired by the respondent which led to the action before the lower court wherein the respondent claimed as herein before reproduced when he noticed that the appellant had again trespassed into the land subject of the Suit Number 1/216/81.

At the conclusion of hearing, the learned trial judge found for the respondent as follows:

“… From the entire evidence before me, the contention of the defendant’s counsel that the plaintiff cannot complain because he met the structures on the land is not correct. It is clear on the entire evidence before this court that the defendant has clearly and recklessly violated the terms of settlement and the judgment earlier stated. The consequence of the violation are clearly stated in the judgment, the plaintiff is entitled to revoke the permission granted to the defendant.
Based on the above reasons, the plaintiff’s claim succeeds and I hereby make the following declaration in favour of the plaintiff.
(1) The plaintiff is hereby entitled to revoke the permission granted to the defendant through his predecessor to use the portion of the frontage of the plaintiff’s land village, Apata-Ganga, Ibadan in judgment of the High Court, Ibadan on the 15th February, 1983 in Suit No. 1/216/81 J.S.A. Olayemi v. Madam Mobonike Alamu.
(2) It is hereby declared that the permission granted to the defendant through his predecessor to use the portion of the land at Alamu village, Apata-Ganga, Ibadan in the judgment of the High Court Ibadan on 15th February, 1983 in Suit No. 1.216/81 J.S.A. v. Madam Mobonike Alamu has been forfeited.
(3) The plaintiff is hereby granted possession of all the piece or parcel of land upon which the defendant has erected structures in the frontage of the plaintiff’s land (property) at Alamu village, Apata-Ganga, Ibadan as shown in the Survey Plan already filed by the plaintiff in this Honourable Court.
(4.) The defendant, his agent, servants and or privies are hereby restrained perpetually from further trespass on any portion of the plaintiff’s land described.
There shall be N7,500.00 cost in favour of the plaintiff”.

Dissatisfied with the finding and conclusion by the lower court, hence this appeal. The appellant on the 14th day of July, 2006 filed the notice of appeal which contains (4) four grounds of appeal. (See pages 144 to 146 of the record).

Consequent upon the said notice of appeal, Mr. N. O. O. Oke Learned Senior Counsel representing the appellant in compliance with the Rules of this Court distilled the following lone issue for determination.

“Whether the respondent established with cogent evidence any breach of the terms of judgment in Suit No. 1/216/81 (Grounds 1, 2, 3 and 4)”

Equally the learned counsel representing the respondent distilled one issue for determination of this appeal. The issue goes thus:

“Whether or not there is admissible evidence before the learned trial judge in this case”.

In my view the issue formulated by the learned counsel representing the respondent is in no way different from that distilled by the appellant’s senior counsel. They only differ in term of construction but same in substance. As such I would adopt the issue formulated by the learned senior counsel representing the appellant.

I have read through the record transmitted to this court and the written submission by the learned senior counsel representing the appellant and that of the learned counsel for the respondent Mr. Olusola A. Dare Esq., I therefore proceed with the consideration of the lone issue.

ISSUE FOR DETERMINATION

Whether the respondent established with cogent evidence any breach of the terms of judgment in Suit No. 1/216/81.

Let me quickly put on record that on the 27/5/2015 when the appeal was fixed for hearing, Mr. A. O. Oladele with S. O. Nmor represented the appellant while the learned counsel representing the respondent was absent despite service of hearing notice on him. Hence the learned counsel representing the appellant urged the court to deem the respondent’s brief of argument duly filed adopted by him pursuant to Order 18 Rule 9 (4) of the Rules of this Court. Accordingly the brief of the learned counsel representing the respondent was deemed adopted. Upon adoption of his own brief he urged the Court to allow the appeal and set aside the judgment of the lower Court.

The argument of the learned senior counsel representing the appellant is that the learned trial judge erred when she held as follows:

“The evidence of PW3 is that the structures now erected by the defendant and causing obstructions to the plaintiff are outside the areas conceded by the plaintiff in Suit No. 1/216/81. The area where the gate is located is not part of the area conceded in the terms of settlement. He said there are shops adjacent to the gate and gate is not free.
The evidence of DW1 is that all the structures built on the land are within the area conceded to the defendant. I have looked at Exhibit C and G which are the plans produced by PW3 and DW1 while Exhibit C shows that the shops exist outside the area marked 1, 2, 3 and have extended almost to the gate of the house, Exhibit G shows that all the shops are within the area conceded. However, pictures do not lie. Exhibit B3 clearly shows that the gate to the house is almost blocked by shops on both the left and the right hand side. Exhibit B4 and B5 shows newly constructed shops Exhibit E and E1 clearly shows that the passage to the plaintiff’s compound has been curtailed. Though Exhibits H2 and H3 shows a Tanker entering the plaintiff’s compound. It is clear from that picture that a great deal of care must have to be exercised for tankers entering and coming out of the house not to run the side of any of the shops…”

(See page 139 line 13-28 of the record of proceeding).

He argued that there is no distinct evidence that the new shops at the frontage of the house constructed by the appellant. The evidence of DW1 being in conflict with the evidence of PW3, the learned trial judge ought to have conducted a visit to the locus inquo to ascertain which of the evidence was reliable. He added that the trial court placed much reliance on Exhibit B3, B4 and B5. He argued that it is impossible for the court to know that the shops were newly constructed by mere looking at Exhibit B4 and B5 what the court did according to him amounts to speculation. He relied on the case of Federal Mortgage Finance Ltd. v. Ekpo (2004) 2 NWLR (Pt. 856) 100 at 120 where the Court of Appeal Calabar Division held that

“A court of law has no business to act on guess work or mere speculation. A court of law acts only on concrete evidence established before it”.

He also referred to the case of Sokoto Furniture Factory Ltd v. Societe Generale Bank Nig. Ltd. (2003) ALL FWLR (Pt. 186) page 693 ratio 8 page 697. By coming to that conclusion the trial court went out of jurisdiction he argued. He relied on the case of Ishola v. U.B.N. Ltd. (2005) 6 NWLR (Pt. 922) 422 at 439 to support an argument that courts are not to make a case for the parties different from what they set out in their proceedings. He also referred to Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) page 661.

Further he argued that the learned trial judge was wrong in concluding that “some of the structures were erected after the plaintiff purchased the property”

On the contrary, evidence showed that Mr. Olayemi the respondent’s predecessor in title had fenced round the house to reflect the land he bought. The court therefore was wrong in holding that the respondent had proved a breach of the terms of judgment in suit No. 1/216/81. He argued that evidence showed that Mr. Olayemi, the respondent’s predecessor in title had fenced round the house to reflect the land he bought. He therefore urged court to decide the sole issue in favour of the appellant and allow the appeal on the following reasons:

(i) The onus of proving his case is on the respondent.
(ii) The respondent failed to prove his case on cogent evidence
(iii) There is no reliable evidence to establish the fact that a breach of terms of judgment in Suit No. 1/216/81 has been committed by the appellant.
(iv) The judgment is against the weight of admissible evidence before the learned trial judge.

He urged the court to allow the appeal, set aside the judgment of the trial court and in its place dismiss the respondent’s suit as being frivolous and misconceived in law.

In response, the learned counsel representing the respondent submitted that the position of the law is that a judgment of court will not be disturbed if it is supported by the evidence before the court. He cited the case of Hyun Sun Nydraulic Machinery Company Limited v. Hassan Jafar (2004) 15 NWLR (Pt. 896) 345 at 366.

He added that it is not the duty of an Appellate Court to substitute it view on evidence for those of the trial court. What an Appellate Court can justifiably do is to find out whether there was evidence upon which the trial court acted. He relied on New Nigeria bank Plc v. Alhaji Musa Abubakar & Ors (2004) 17 NWLR (Pt. 901) 66 at 84.

He argued that before proceeding with the examination of the evidence before a trial court upon which it would base its decision, it is important to state what was in issue at trial between the parties. What was in issue in this case was whether the defendant had exceeded the area of land which was conceded to his predecessor in title of the plaintiff/respondent by a term of settlement which later became the judgment of the High Court and whether the penalty agreed to the parties; i.e. revocation of the area conceded should follow.

The trial court found that the appellant conceded the area conceded to him in the term of settlement pronounced in the judgment of the court. Hence in determining the matter, the trial judge raised one issue for determination and which was resolved in favour of the respondent. The issue he said is “whether the defendant in this case has breached the terms of the judgment in Suit No. 1/216/81 which is the suit between J.S.A. OLAYEMI NAD MADAM MOBONIKE ALAMU”.

Let me quickly note here that the plaintiff in that case is the assignee of the land in issue to the respondent while the appellant is a descendant of the defendant in that suit. The term of settlement in the suit is as certain in page 13 of the record which was reproduced by the trial court in his judgment. He therefore relied on paragraphs 2, 3 and 4 of the terms of settlement thus:

Paragraph 2
“The plaintiff concedes and surrenders to the defendant the portion shown as 1, 2, and 3 on the plan No. Ab. 6476A attached to the statement of claim.”

Paragraph 3
The plaintiff also concedes and surrenders to the defendant a small piece or parcel of land measuring 14 feet from the back of the portion conceded and surrender to the defendant paragraph 2 above.

Paragraph 4
The defendant shall not in future create any further obstruction on any part of the plaintiff’s landed property outside the portion already conceded and surrendered to the defendant in paragraphs 2 and 3 above further obstruction would cause the plaintiff or his successors, heirs or assigns to revoke the permission granted to the defendant”.

He further that the trial judge was right in holding as follows:

“From the viva voci evidence of the witnesses called by both parties and the documentary evidence particularly the photographs, I do not hesitate to hold that the defendant has exceeded area 1, 2, 3 and 14 feet conceded to his mother”.

He added that the learned trial judge considered both the oral and documentary evidence before coming to the decision contrary to the submission of the appellant that the court based its decision on a mere look at the photographs tendered in evidence before the court, hence the court also found that some of the structures being complained against were built by the defendant after the purchase of the property by the plaintiff. That informed the finding of the learned trial judge on page 140 of the record when he found that some of the structures being complained against were built by the defendant after the plaintiff purchased the property. Based on this fact the learned trial judge concluded as follows:

“From the entire evidence before me, the contention of the defendant’s counsel that the plaintiff cannot complain because he met the structures on the land is not correct. It is clear on the entire evidence before this court that the defendant has clearly and recklessly violated the terms of settlement and the judgment earlier stated. The consequence of the violation is clearly stated in the judgment the plaintiff is entitled to revoke the permission granted to the defendant”.

He contended that the foregoing finding of the court was not appealed against. Decision of the court not appealed against would be deemed accepted by the appellant and the appellate court will not interfere with it. He relied on Bakare v. N.R.C. (2007) 17 NWLR (Pt. 1064) 606, 638; Okotieboh v. Manager (2004) 18 NWLR (Pt. 905) 242 at 284.

He further contended that if the argument of the appellant’s Senior Counsel in his brief are the complaint in his ground of appeal, the complaints are trivial and have not attached or challenged the basis or fundamental finding, or decision of the trial court. The judgment cannot be disturbed on that basis. It is not every error or omission in a judgment that will lead to its being overruled. To be fatal to a judgment, the error complained of by an appellant must have occasioned a substantial miscarriage of justice. The error which would cause an appeal court to set aside a judgment must be such that has influenced the judgment in a manner that the error lead to a wrong decision causing the appellant to suffer injustice. He relied on Engineer Goodnews Agbi & 1 Or. v. Chief Audu Ogbeh & 3 Ors. (2006) 11 NWLR (Pt. 990) 65 at 110 and Mohammed Mustapha Ali Co. Ltd. v. Alhaji Isagoni (2006) 10 NWLR (Pt. 987) 808 at 817-818 and 821.

He therefore submitted that the appellant has not establish either in the complaint in her ground of appeal or in her brief of argument the miscarriage of justice suffered by him or that the decision of the learned trial judge is wrong. The record in the case is replete with evidence justifying the decision of the learned trial judge. After referring to the testimony of PW5 (the Appellant) and that of PW2, PW3 and DW1 and coupled with Exhibit B4 and B5 which forms the basis of the finding of the court in pages 139-140 of the record, the submission of the appellant that there was no distinct evidence that the defendant built the new shops in the frontage of the plaintiff’s building has no basis. The decision of the learned trial judge was not based on the photographs alone but also on the evidence of PW3, PW5 and DW3. PW5 for instance gave evidence clearly that only three shops were built when he bought the property but the defendant began to build several shops after he purchased the same. PW5, testified that when the defendant continued to build in the frontage of his house he got the police to arrest him. After the matter had got to court he also complained to the court and defendant’s counsel when the defendant continued to build shop in front of the house. Also he submitted that DW3 admitted that the plaintiff was terrorizing them with police. Therefore the submission of learned senior Counsel representing the appellant that there was no way the learned trial judge could know that the shops in the frontage of the plaintiff were newly built except there was a visit to the locus in quo is untenable.

He added that the learned trial judge had material before her in the evidence of PW3, PW5 and even DW3 to resolve the conflict and come to her decision. There was no need for any visit to lucus in quo. Even DW2 called by the defendant testified thus:

“Exhibit H shows shops on the right and on the left of the gate to the plaintiff’s house. I do not know Mr. Adeeso (Plaintiff). I just took photographs of the surroundings…. There are many shops in front of the house. The defendant did not ask me to take the photograph in those other shops”. See page 116 of the record).

Further he submitted that another aspect of the case is the unchallenged piece of evidence from PW3 which was captured by the learned trial judge at page 40 of the record thus:

“PW3 stated that the structures erected by the defendant exceeded the 14 feet (4 metres) conceded to the defendant’s predecessor by 3 metre (9 feet). That evidence stands unchallenged and controverted”.

On the contention of the appellant on issue of fencing he submitted that it is difficult to see how the entrance of the gate to the plaintiff’s house blocked by the defendant could have been fenced. It is also difficult to see how the set back to the house could have been fenced. The clear and credible evidence before the court is that the defendant blocked or narrowed the gate or entrance to the plaintiff’s house with ramshackle structures. The set back to the house has also been blocked with structures built by the defendants. It is also not in doubt that the entrance to the gate and the set back of the house were not conceded to the defendant. The evidence before the court to the effect that the appellant exceeded the area conceded to her remains unchallenged. He referred to the evidence of DW1 where he said thus:

“As a registered Surveyor, I know that it is wrong to build on setback. It is wrong to erect structures to block the entrance or gate of another person’s property”.

He submitted that an Appellate Court will not reverse the finding of fact by the trial court where

(a) There is credible evidence in support of the finding; or
(b) There is no miscarriage of justice or
(c) The trial court did not fail to consider vital evidence, or
(d) The trial court did not admit inadmissible evidence.

He relied also on the cases of Ogun v. Akinyelu (2004) 18 NWLR (Pt. 905) 362 at 388 and 392 and Abana v. Obi (2004) 10 NWLR (Pt. 881) 319 at 360.

Finally he submitted that the appellant has not established any reason known to law why the finding of fact or decision of the trial court should be reversed by this court. The decision and finding of the trial court is supported and justified by the admissible evidence before it and the decision is not perverse. He urged the court to resolve the issue in favour of the respondent. In all he urged the court to affirm the decision of the trial court and dismiss the appeal.

Having carefully read the record of appeal, submission of counsel in their adopted written brief of argument and examined the exhibit tendered therein, the pertinent question arising from the lone issue distilled by counsel from inner and outer bar is whether it has been established by cogent evidence that the appellant breached the terms of the judgment in Suit No. 1/216/81. In order to answer this question, it must be determined whether or not the respondent has discharged the evidential burden of proof placed on him. That is to determine whether or not the plaintiff has established his case by preponderance of evidence.

What the appellant is contending is that the respondent at the lower court did not discharge the burden placed on him by virtue of Section 131-133 of the Evidence Act 2011 to warrant the judgment in his favour by the lower court.

The narrow issue in this appeal is whether or not the appellant has exceeded the area conceded to him i.e. the 1, 2 and 3 structures granted to which he was limited by virtue of the consent judgment entered in Suit Number 1/216/81. (See Exhibit ‘A’) and the term of settlement in Exhibit AC and coupled with the enrolled order Exhibit AS.

The combined effect of the evidence of PW2, the photographer, and through whom Exhibits B-B5 were tendered and which Exhibits clearly shows that the ships blocked the entrance gate of the respondent, secondly, the evidence of PW3. Yekini Garba Oladimeji, the registered surveyor and through whom Exhibit “C” was tendered. His evidence is to the effect that the structures are outside the area conceded in the consent judgment. He said he saw the plan attached to the consent judgment. He added that, the frontage of the respondent’s house has been completely obstructed and the obstruction absolutely make it impossible to see the outside from the main house. He added that in terms of settlement in Suit No. 1/216/81, an area measuring 14 feet (Approximately 4 metres) was conceded to the appellant but the structures exceeded 4 metres (14 feet) by 3 metres (9.89 feet). He also said that the gate to the property of the respondent is not free and that the structures are very close to the gate both inside and outside the property. According to him no portion of the setback was conceded to the appellant in the terms of settlement in Suit Number 1/216/81 and that the structures on the set back are illegal structures and that a setback to any property belongs to the owner of the property i.e. the Respondent. (See pages 104-106 of the record of appeal).

Further to this is the evidence of PW4 and PW5. PW5 is the respondent. He rendered his evidence of the property in 1990 – See Exhibit D. See also Exhibit E-E1 (Photographs). See also page 107-113 of the record.

In consideration of the foregoing pieces of evidence and the following fact which are not in dispute by parties as amplified on page 136 of the record by the court.

(1) One George Norman Herrington an expatriate was granted a lease of piece of land measuring 3.374 acres by one Akintola Alamu in 1955 (See Exhibit D1).
(2) That the said Herrington built a house on a portion of the land leased to him.
(3) The said Herrington assigned the land and the house he built thereon to J.S.A. Olayemi (See Exhibit D2).
(4) J.S.A. Olayemi surrendered the remainder of the lease of the land assigned to him to Akintola Alamu and his family (See Exhibit D3).
(5) Akinola Alamu and his family conveyed a portion of the land on which Herrington built a house to J.S.A. Olayemi (See Exhibit D4)
(6) The defendant’s mother Madam Mobonike Trespassed on portion of Land to J.S.A. Olayemi.
(7) J.S.A. Olayemi instituted Suit No. 1/286/81 against defendant’s mother.
(8) The matter was settled between the parties thereto.
(9) Terms of settlement were filed and judgment was entered based on the terms of settlement.
(10) Three area marked 1, 2 and an additional 14 feet from the area 1, 2 and 3 in Exhibit C were conceded to defendant’s mother on the condition that the defendant’s mother would not exceed the portions conceded to her, if she does, the plaintiff in that case would revoke the granted in respect of the conceded area.
(11) J.S.A. Olayemi’s children sold the land conveyed to him and the building thereon to the plaintiff in this case after their father’s death.

It is also on record at page 137 the term of settlement in the suit. For purpose of clarity and understanding, I reproduce herein before the said Terms of Settlement:

“The parties herein agreed to settle the above suit in the manner following:

(1) The defendant being a party to the Deed of Conveyance executed by members of Alamu family in favour of the plaintiff affirms titles in the plaintiff in respect of the landed property contained in the said Deed of Conveyance dated 3rd January, 1973 and registered as No. 31 at page 31 in volume 1441 of the Lands Registry in the office at Ibadan.
(2) The plaintiff concedes and surrenders to the defendant the portion shown as 1, 2 and 3 on the Plan No. Ab6476A attached to the statement of claim.
(3) The plaintiff also concedes and surrenders to the defendant a small piece or parcel of land measuring 14 feet from the back of the portion conceded and surrendered to the defendant in paragraph 2 above.
(4) The defendant shall not in future create any further obstruction on any part of the plaintiff’s landed property outside the portion already conceded and surrendered to the defendant in paragraph 2 and 3 above as further obstruction will cause the plaintiff or his successor, heir or assigns to revoke the permission granted to the defendant.
(5) That the plaintiff shall cause his property to be fenced round but will not disturb the defendant on the portion which the plaintiff has conceded and surrendered to the defendant.
(6) That each party shall bear his or her own cost of the proceedings.
Dated at Ibadan this 4th day February, 1983”

Based on the foregoing term of settlement contained on pages 137-138 of the record of Appeal, a drawn up order of the court was made sealing the matter as agreed by the parties. (See pages 138-139 of the record of appeal).

In my view, the foregoing are sufficient to tilt the scale of justice on the side of the respondent and in a way over weighing the evidence adduced by the appellant in rebuttal. That is to say that the evidence tendered by the respondent is not only overwhelming but completely and properly discharge the burden of proof placed on the respondent by virtue of Section 131-133 of the Evidence Act 2001 as amended.

The evidence by the respondent, both vivo voci and documentary clearly establishes the fact that the appellant has exceeded the portion of land conceded to him and has taken possession of area forbidden in the agreement named “Terms of Settlement”. Parties are bound by agreement freely entered into by them. See the case of Okonkwo v. CCB (Nig.) Plc (2003) 8 NWLR (Pt. 822) page 382.
The court would not hesitate to give force of Law to such agreement. See the case of U.B.N. Ltd. v. Ozigy (1994) 3 NWLR (Pt. 339) page 385 and Amede v. U.B.A. (2006) 8 NWLR (Pt. 1090) pg. 623 at 659-660.

In view of the evidence adduced by the respondent, it is crystal clear that the appellant has taken occupation of areas he was restricted from by virtue of the agreement and the consent judgment of the trial court.
It is trite that a consent judgment arises when parties unequivocally agree to terms of settlement as in the instant appeal and which they mutually refer to the court as basis for the court’s judgment. By their mutual agreement to settle the matter, they have given their consent to end the litigation – See the case of Adedeji v. Oloso & Anor (2007) 1-2 SC 76.

Therefore, and in the light of the foregoing, I have no doubt in agreeing with the finding of the lower court based on the totality of evidence tendered before the court. I therefore find no cogent nor any compelling reason to disturb the finding of the learned trial judge appealed against.
On that note I answer the sole issue in the affirmative and against the appellant.

In conclusion, the appeal is unmeritorious and same be and is hereby dismissed in its entirety.

I award a token cost of N50,000.00 against the appellant and in favour of the respondent.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Oniyangi, J.C.A. I agree that this appeal lacks merit. I also accordingly dismiss it. I abide by all the consequential orders of my learned brother in the appeal.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the judgment just delivered by my learned brother, M. N. Oniyangi, JCA.

My learned brother has adequately considered and resolved the issues that came up for determination in this appeal. I agree with the reasoning and conclusion arrived at by my learned brother. I have nothing else to add.

I abide by the consequential orders made therein, including the order on costs.

Appearances

A. O. Oladele, Esq. with S. O. Nmor, Esq.For Appellant

AND

Olusola A. Dare, Esq.For Respondent