MR. OLAREWAJU AJAYI & ORS v. HON. GEORGE AKAWA & ANOR
(2018)LCN/11857(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/EK/86/2016
RATIO
DAMAGES: QUANTUM OF DAMAGES
“On the quantum damages, the Court of Appeal will not generally alter an award of damages unless it is established that the trial judge proceeded on a wrong principle of law or that the award was wrongly manifestly too large or too simple. See BHOJSONS PLC V DANIEL KALIO (2006) ALL FWLR (PT 312) 2038-2064, GARI V SEIRAFINA NIG LTD (2008) 2 NWLR (PT 1070)20.
It is trite that damages follow upon a breach of a right or invasion of same. In this case, it is the commando-like invasion of the Appellants according to learned Respondents counsel on their farmland and the destruction of their farm crops and properties on the land in dispute.” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: WAYS TO PROVE TITLE TO LAND
“It is already an age principle of law that there are different ways of proving title to land and among the ways are the following five legally accepted
1. Proof by traditional evidence
2. Proof by production of document of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
3. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion there of extending over a sufficient length of time numerous and positive enough to warrant the interference that the person exercising such property acts are the tune owners of the land.
4. Proof by ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
5. Proof of possession of connected or adjacent lands would in addition be the owner of the land in dispute.
See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227
The law is that the establishment of one of the ways is sufficient proof of ownership. See NKADO V OBIANO (1997) 5 NWLR (pt 503)31. It is settled law that where evidence of tradition is relied upon, in proof of declaration of title to land as in the instant case, the claimant in order to succeed must plead and establish the following facts
(a) Who founded the land
(b) How he founded it and
(c) The particulars of the intervening owners through whom he claims down to him. See ANYAFULU V MEKA (2014) 7 NWLR(pt 1406) 396 at 418.” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE” EVALUATION OF EVIDENCE
“The general principle of appraisal and evaluation of evidence are set out by the Supreme Court in the case of MOGAJI & ORS V ODOFIN & ORS (1978) 4 SC 373. In deciding this, the Court must give consideration to and evaluate all the evidence led in the case as a whole, where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial judge. See ATOLAGBE V SHORUN (1985) 1 NWLR 360, AGBONIFO V AIWEREOBA (1988) 1 NWLR at 325, PAULINUS ONWUCHURUBA V ANTHONY ONWUCHURUBA (1993) 5 NWLR 185 at 1990-200.” PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. MR. OLAREWAJU AJAYI
2. MR. JULIUS OJO
3. MR. ABAYOMI AKOGUN
4. SURVEYOR SOLA EGBODOFO
(For and on behalf of Oniloda
Oke-Ewi family of Irona Quarter, Ado-Ekiti) Appellant(s)
AND
1. HON. GEORGE AKAWA
2. ZACHEAUS AKAWA
(For and on behalf of the Eesaro family) Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Ekiti State High Court delivered by His Lordship Hon Justice C.I. Akintayo on the 19th day of December, 2014, granting declaration of title to the Respondents, the sum of N1million Naira for trespass and an order of perpetual injunction.
Dissatisfied with the aforesaid judgment, the Appellants with the leave of Court appealed against same on the 28th October, 2015 vide a notice of Appeal which contained four grounds of appeal as could be seen from pages 245-248 of the records.
FACTS OF THE CASE
According to the Appellant, the Respondents were the claimants before the trial Court claiming for declaration of title, damages for trespass and an order of perpetual injunction against the Appellants. The Respondents instituted this action for themselves and on behalf of Eesara family of Ado-Ekiti whilst the Appellants defended the said suit as representatives of Oniloda OkeEwi family of Irona quarters, Ado- Ekiti. The land in dispute is situate at Awajin farm land, along Ado-Ikere Road, Ado-Ekiti. The Appellants did not counter-claim against the Respondents. The Respondents mentioned different persons as founders of the farm land in dispute. The genealogical line of succession till the present respondents was not proved.
On the other hand, the Respondents stated that they are the descendants of Adedeji Akawa. The family chieftaincy of the Akawas is Eesaro, and they are a large parcel of land along Ikare Road known and called Oke Ureji and Awaiin farmlands. The land they said was founded by their ancestral fathers and they have been in possession for centuries till date. All of a sudden the Appellant began to trespass on the Respondents land and rather than embark on self help, the Respondents approached the Court on behalf of the Eesaro family in a representative action against the Appellants who defended the suit as representatives of OnilodaOke-Ewi, Irona quarters, Ado Ekiti.
To argue the Appeal, the Appellant formulated a sole issue for determination thus:
“Whether the Respondents proved their claims before the trial Court to entitle them to judgment, having regards to the principles of law on declaratory reliefs, trespass and an order of perpetual injunction” (grounds 1-4 of the notice of Appeal).
Appellants counsel contended that the Respondents instituted this suit for themselves and on behalf of Eesaro family of Ado-Ekiti and relied on traditional history which is one of the modes of proof of title/ownership to land as laid down in Idundun V Okumagba (1976) 9 &10 SC 77 at 246-250. The Respondents had a duty in a claim of a declaration of this nature to prove their title with clear, cogent and convincing evidence while the defendant has only a duty to defend. See Onibudo V Akibu (1982) 7 SC 60, Olachi v Balogun (1996) 4NWLR (PT 441) 44 at 54.
However a claimant/Respondent who fails to discharge this burden on him through his evidence will fail and his case will be dismissed. See Echi v Nnamani (2000) 8 NWLR (pt 667) 1 at 12, Gankon V Ugochukwu Chemical Industries Ltd (1993) 5NWLR (pt 297) 55. The claimant must rely on the strength of his own case and not on the weakness of the case of the defendant. See Awuzie v Nkpariama (2002) 1NWLR (pt 747) 9-10. Also if the onus is not discharged, the weakness of the defendant’s case will not help the claimants and the proper judgment is for the defendant.
The weakness of the defence will only be considered where the claimant established a prima facie case. See Okonkwo v Okonkwo (2010] 1WRN 23 at 26.
Also, learned Appellants counsel contended that where evidence of traditional evidence is relied upon in proof of declaration of title to land as in this case, the claimant in order to succeed must plead and establish the following:
(1) Who founded the land
(2) How he founded the land
(3) The particulars of the intervening owners through when he claims down to him. See Anyafulu v Meka (2014)7NWLR (pt 1406) 396 at 418
On who founded the land, the Respondents gave different names as shown on page 5 paragraph 6&7 of the record of Appeal. The Respondents according to learned counsel averred that it was late Chief Fakiyesi, the father of Fatoyo Fakiyesi that founded the land in dispute.
According to the Respondents in paragraph 5 of their statement of claim at page 4 of the record, Chief Ogidiloogun begat Chief Fakiyesi the 6th Eesaro.
But CW5-Honourable George tunji Akawa, who is the 1st Respondent on record contradicted himself under cross examination by the learned counsel to the Appellants when he stated thus –
“The land in dispute was founded by Amudigbayaa. The land in dispute is along Ikare Road on the far left while approaching Ikere from Ado. It is called Awajin land” contrary to his earlier evidence that the land in dispute was founded by Chief Fakiyesi.
It is submitted that Chief Fakiyesi and Chief Amadigbayaa who are past Eesaros are three distinct persons.
CW4 on his own stated that he did not know who founded the land in dispute
It is therefore submitted that these are material contradictions in the pleadings and evidence of the Respondents witnesses as to the founder of the farmlands in dispute. In spite of the above, the trial judge still granted a declaration of title to the Respondents
The Respondents did not paint a genealogical tree of how the land in dispute devolved on them. See Nwachukwu v Onuoha (1995) 9 NWLR (pt 421) 603, Eze V Atasie (2000) LPELR -1990 (SC)
However, it is contended that in the instant case, the pleadings and evidence as regards inheritance from Chief Fatoyo Fakiyesi upon his demise to the Respondents being in the air. It stopped at Chief Fatoyo Fakiyesi and did not show any descendant from Chief Fatoyo Fakiye to the respondents. The consequences of not establishing a line of descendants from Chief Fatoyo Fakiyesi to the present respondents was that the respondents had failed to establish their link with the said Chief Fatoyo Fakiyesi and the land in dispute. See ANYAFULU V MEKA (2014)7 NWLR (pt 1406)396 at 416. Court is urged to so hold. In order to make an headway in proving their case, the respondents would need to plead and lead evidence of the particulars of intervening owners from either Chief Fatoyo Fakiyesi or Chief Agbamudiaya, the purported founder of the land in dispute which they failed to do.
In this case, the respondents did not plead who founded the land in dispute, how the purported founder got the land in dispute and the particulars of intervening owners. Evidence of the 1st respondents, CW5, Hon. George Akawa, was at variance with the pleadings. He stated that it was Chief Fakiyesi that founded the disputed land and later in evidence stated that it was Chief Agbamudiaya.
According to Appellant’s counsel, the respondents also demolished their case when they testified that Eesaro family whom they claimed purported owned the land in dispute had given same to Adedeji Akawa family, CW1 under cross-examination stated that Exhibit A which is the purported survey plan of the disputed land only shows part of the land that was given to the family of Adedeji Akawa.
The pieces of evidence CW1, CW2 and CW3 in Court under cross-examination shows that Eesaro family is different and distinct from Adedeji Akawa family. It also showed that Eesaro family had divested itself of the ownership of the disputed land by vesting ownership on Adedeji Akawa family. Strangely, it is the Eesaro family that is now praying for declaration of title of land which had been given out to Adedeji Akawa family. Exhibit A which shows that the disputed land belonged to Adedeji Akwara family.
It is submitted by learned Appellant counsel that the respondents did not prove by evidence, the traditional history set up by them. The pleading of the respondents as well as the evidence on the founder of the disputed land, how he founded it and the devolution of the disputed land through successive ancestors right to themselves are most unsatisfactory, unconvincing and unreliable. The learned trial judge failed to apply the law to the scanty evidence of the respondents by His Lordship failure to dismiss the respondents’ suit. Learned counsel submitted that it is the law that where the pleaded title to land has not been proved as in this case, it will be unnecessary to consider acts of ownership and possession which acts are no longer acts of possession but acts of trespass. See OYADARE V. OLAJIRE KEJI & ANOR (2005) LPELR 1861, 10-11.
The findings of the trial Court is perverse according to Appellant counsel because the findings of the Court was not supported by evidence on record. The trial judge ought to have dismissed the claim as having failed to adduce convincing traditional evidence. There was therefore no need to consider the purported acts of possession of the Respondents on the land in dispute. See Registered Trustee of the Diocese of Aba V Helen Nkume (2002) 1 NWLR (pt 749)726.
On the award of N1 million general damages for trespass and order of perpetual injunction, it is submitted that the respondents were not entitled to same in view of their failure to establish title to the disputed land. The trial Court ought not to have awarded same in view of the scanty and insufficient evidence on record. See Supreme Court in LAWSON V. AJIBULU (1997)6NWLR (pt 507)14 at 36.
It is submitted that trespass is rooted in exclusive possession. The respondents did not prove that they are in exclusive possession of the land in dispute CW1, CW2 & CW3 testified to the fact that the land in dispute had been given to Adedeji Akawa family by the Eesaro family on one hand and that other children of Akintoye Joseph, Ezeikel and Faturoti Julius.
The evidence of CW2 and CW5 show that the Respondents were not customary tenants on the land in dispute and as such are not in exclusive possession of the land, possession he contended must be pleaded and proved for trespass to be maintainable. See OGUNDIPE V. AWE (1988) 1NWLR (pt 68) 118, BABATOLA V. ALADEJANA (2001) FWLR (pt 61) 1670 at 1862 (SC). Also once trespass fails, the claim for injunction fails. See CHINDA & ORS V. CHIEF AMADI (2003) FWLR (pt 145) 696 at 710.
Respondents sued for themselves and on behalf of Eesaro family while Exhibit A revealed that the disputed land belonged to ADEDEJI AKAWA family. Respondents also testified that the disputed land was given to Adedeji family by Eesaro family. That they put tenants in possession of the dispute land. It is trite law that a landlord who is not in possession of the land in dispute cannot sue for trespass in respect of a parcel of land occupied by a tenant. See ADEPOJU V. OKE (1999) 3 SC 28 at lines 5-6. The Court also held in OJOMO V. IBRAHIM (1999) 12 NWLR (pt 631)415 at paragraphs E-F that a landlord during the pendency of the tenancy agreement cannot sue a trespasser found on the land. The right to do that belongs to his tenant.
On the part of the Appellants, it is contended that there was no burden on the appellants in the instant appeal for a declaration of title, who did not counterclaim to establish their title. The appellants stoutly resisted the respondents’ claims in their statement of defence but did not file a counter-claim. The burden of proof rests on the Respondents to prove their case.
Finally, he urged the Court to resolve this sole issue for determination in favour of the Appellant and to allow the Appeal, set aside the judgment of the lower Court and dismiss the Respondents suit with substantial cost.
One their own part, the Respondents formulated one issue for determination thus –
ISSUE FOR DETERMINATION
WHETHER THE RESPONDENTS PROVED THEIR CLAIMS BEFORE THE TRIAL COURT TO ENTITLE THEM TO JUDGMENT, HAVING REGARDS TO THE PRINCIPLES OF LAW ON DECLARATORY RELIEF, TRESPASS AND ORDER OF PERPETUAL INJUNCTION (GROUND 1-4 OF THE NOTICE OF APPEAL)
Learned Respondents’ counsel stated that in arguing their case, the Appellant re-stated the three reliefs sought in the original process. They argued that the Respondents relied on traditional history to prove their case. The Appellant have argued that the Respondents as claimants at the trial Court must prove title clearly whereas the Appellants are just to defend. And that where evidence of traditional history is relied upon, claimant must prove who founded the land, how the land was founded and the particulars of intervening owners.
The Appellants also argued about what they alleged were material contradictions in the pleadings and evidence and referred the Court to the evidence of CW4 and CW5. They argued that Eesaro is different from Akawa. They finally faulted the findings of the trial Court and said same was perverse as Akawa was not among the Eesaro. They also faulted Exhibit A contending it bears Akawa’s name.
In response to all the above, it is submitted by learned Respondents counsel that Exhibit A provided the identity of the land. Parties are ad idem on the identity of he land and there is no dispute about this. In fact, the Appellants neither opposed Exhibit “A” nor filed a counter survey plan. It does not matter, in whose name it is made.
The Courts he submitted have provided five different ways of proving title to land in Nigeria AWODI V. AJAGBE (2015) 3 NWLR (pt 1447)578 at 697.
All a party needs, is evidence of any one of the five methods to prove his title to any disputed land. In the same vein, a party is not confined to only one method. From a community reading of paragraphs 4,5,6,7,8,9,10,11,18,22,26,27,28,29,30,33,34,35,36,37,41,43 and 49. (See page 4-11 of the Records), the Respondents pleaded their title to the land in dispute vide traditional evidence, acts of ownership over the land and acts of long possession and enjoyment of the land without let or hindrance.
At paragraphs 5, 6, 7 and 33 of the statement of claim, the Respondents pleaded that the founder of the Eesaro family was the Eesaro Ojukoborun called Chief Odigilogun who begat Chief Fatukasi (the 5th Eesaro) and that it was Eesaro Fatukasi who begat Eesaro Fakiyesi who again begat Eesaro Fatoyo who now founded the land, and that the land devolved on the children and descendants of Chief Fatoyo Fakeyesi from generation to generation till date without hindrance. The generations of the Eesaro Fatukasi to the present one was pleaded in paragraph 33 of the statement of claim.
PW1 gave evidence of acts of trespass by the Appellants in line with the pleading at paragraph 36 of the statement of Claim and tendered four(4) letters written to the Appellants in 2011 with copies sent to the offices of the Commissioner of Police, Ekiti State and the Director of State Security Services, Ekiti State Command. See paragraph 36 of Zacheaus Akawa’s written statement on Oath and his evidence at page 136 of the Record. PW2 gave evidence in line with his statement on Oath that he had been the Claimant’s tenant for about twenty five years and had been paying yearly tribute (Isakole) to the Claimants. He testified further that nobody had ever come to disturb him until 2011 when the Appellants in a commando-like stormed the farmland to start destroying crops and properties on it. PW3 also pleaded and gave evidence in corroboration of PW2 and tendered a video tape of the acts of trespass.
In spite of all this, the Appellants are arguing herein that the Respondents did not prove their case hanging their argument on the alleged minor contradiction in the Respondents evidence of traditional history. Such arguments has been laid to rest by the Supreme Court. See KAYILI V YILBUK (2015) 7 NWLR (pt 1457)26 at 77. See also EZEKWESILI V ONWUAGBA (1998) 3 NWLR (pt541) 271 at 245, ATTAH V IDI (2015) 2 NWLR (pt 1443) 385 at 409.
It is submitted that the Respondents did not only establish their title traditional evidence, they also established it by acts of ownership and by acts of long possession and enjoyment of land. The Appellant just came in 2011 to try to dispossess the Respondents which was vehemently resisted.
The claimant has a right to adopt more than one way of proving title to land as done by the Respondents herein. See MKPINANG V NDEM (2013) 4 NWLR (pt 1344) 302 at 312.
It is submitted that apart from the fact that the Claimants were not cross-examined on material averments in their pleadings as contained in the statement of Claim, the statement of Defence of the Appellants did not specifically deny, controvert nor contest any of those averments in specific forms or manner. See the High Court of Ekiti Civil Procedure Rules 2011 @ Order 15 Rule 5 (1) & (2).
The operative word in the rule is “SHALL”, see IKUEPENIKAN V THE STATE (2015) 9 NWLR (pt 1465) 518 at 553.
The learned trial judge made several findings Exhibit A inclusive amongst others which were not appealed and therefore such finding is binding on the parties. See KAYILI V YILBUK (Supra), AWODI V AJAGBE (supra) DABUP V KOLO (1993) 9 NWLR (pt 317) 254, IJALE V A.G. LEVENTIS & CO LTD (1959) SCNLR 255.
It is therefore contended that the call for this Court to re-evaluate the evidence of the trial Court is uncalled for. See AWODI V AJAGBE (supra)
The Court is urged to uphold the findings of the lower Court without going into fresh appraisal. See KAYDEE VENTURES LTD V MIN. OF F.C.T (2010)7NWLR (pt 1192)171 at 205-209.
On the award of damages against the Appellants, he urged the Court to uphold same. The award is moderate and it conforms with the principle of law that cost follows event, see KAYDEE VENTURES LTD V MIN. F.C.T (supra)
In the light of the above, the Court is urged to decide the sole issue in this Appeal against the Appellants and in favour of the Respondents and discountenance the arguments of the Appellants and uphold the award of damages granted to the Respondents.
The Appellants filed a Reply brief dated 23/4/2018 and filed same date. I read through the said Reply brief and it is nothing more than a re-arguing of the briefs already moved. As a result, I will discountenance same in the consideration of the merit of this case.
This Appeal will be considered and resolved on the sole issue for determination thus.
“Whether the Respondents proved their claims before the trial Court to entitle them to judgment, having regards to the principles of law on declaratory Reliefs, trespass and an order of perpetual injunction” (grounds 1-4 of the Notice of Appeal.)
It is now firmly established in our law that in a claim for declaration of title, such as this, the onus is on the plaintiff to prove the title.
He must in that regard rely on the strength of his own case and not on the weakness of the defence. The law is still as it was stated in KODILINYE V ODU (1935) 2 WACA 336, where WEBBER C.J. stated at page 337:
“The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in his case must rely on the strength of his case and not on the weakness of the defendant’s case. If the onus is discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant” Per Nnaemeka-Agu?JCA (as he then was) see OWOADE & ANOR OMITOLA & ORS (1988) NWLR (pt 77) 413.
It is already an age principle of law that there are different ways of proving title to land and among the ways are the following five legally accepted
1. Proof by traditional evidence
2. Proof by production of document of title duly authenticated, unless they are documents twenty or more years old produced from proper custody.
3. Proof by act of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion there of extending over a sufficient length of time numerous and positive enough to warrant the interference that the person exercising such property acts are the tune owners of the land.
4. Proof by ownership by acts of long possession and enjoyment in respect of the land to which the acts are done.
5. Proof of possession of connected or adjacent lands would in addition be the owner of the land in dispute.
See IDUNDUN V OKUMAGBA (1976) 9-10 SC 227
The law is that the establishment of one of the ways is sufficient proof of ownership. See NKADO V OBIANO (1997) 5 NWLR (pt 503)31
It is settled law that where evidence of tradition is relied upon, in proof of declaration of title to land as in the instant case, the claimant in order to succeed must plead and establish the following facts
(a) Who founded the land
(b) How he founded it and
(c) The particulars of the intervening owners through whom he claims down to him. See ANYAFULU V MEKA (2014) 7 NWLR(pt 1406) 396 at 418.
It is trite that a Claimant has right to adopt more than one way of proving title to land as done by the Respondents herein.
Hence the Supreme Court held in MKPINANG V NDEM (2013) NWLR (PT 1344) 302 @ 312-313 PARAGRAPHS H-D thus
“It is the pleadings and evidence adduced by a plaintiff for declaration of title that determines whether he has proved his case or not. In other words, proof of a claim for a declaration of title by means of traditional evidence is not mutually exclusive with other means of proving the claim. See KOJO V BONSIE (supra); MOTUNWASE V SORUNGE (1988) 4 NWLR (PT 92)90. Thus a plaintiff may adopt one or more of the ways of proving ownership for example, traditional evidence or by means of evidence of acts ownership of possession. It is only where a plaintiff fails to prove his case by means of traditional evidence and also fails to establish it by means of evidence of acts of ownership and possession, when these were the means pleaded and relied upon that the plaintiff’s case should be dismissed. It is also immaterial whether the learned trial judge makes a finding that the traditional history of one or both parties is inconclusive. The lower Court in its consideration of the complaint of non-evaluation or improper evaluation of the evidence observed that the Appellants relied in proof of ownership and possession rightly held by relying on AKUNYILI V EJIDIKE (1996) 5 NWLR (PT 449) 381 that if evidence of traditional history is not conclusive, then evidence, if any, on record of act of ownership or possession should be considered.”
The Respondents instituted this suit for themselves and on behalf of Eesaro family of Ado-Ekiti and averred in paragraphs 5, 6, 7 and particularly paragraph 33, 34, 35, 36 and 37 of their statement of claim averred that the following are the various Eesaro since inception till date.
Para 33 (a) Chief Ogidilagun, (b) Chief Opo-EtuLejuIbon, (c) Chief Fadile, (d) Chief Amudigbayaa, (e) Chief Fatukasi (f) Chief Fakujesi, (g) Chief Famotoju, (h) Chief Faturati, (i) Chief Akintoye Akawa (who died in 1993)
Para 34: Also the Respondents (Claimants) aver that the following are currently the Eesaro family tenants farming on the land
(a) Mr. Fidelix Ejiri
(b) Prince Adeniolu (late)
(c) Mr. Abiodun Fapohunda,
(d) Pastor Ileabo
( e) Mr. Peter Akamowe
Para 35: the claimants aver that some of the crops planted by late Chief Fatoyo Takiyesi (Akawa & Akuru) and his descendants on the farm include yam, cocoyam, cotton, beans, rice, tomatoes, maize, cassava, cashew, mangoes, palm trees, oranges and cocoa.
Para 36: The claimants aver that all these crops mentioned in paragraph 35 above are still bearing actively cultivated on the land till date.
Para37: The claimants aver that the relics of huts and old buildings erected by the claimants forefather and new ones built by the children are still visible and present on the farmland till date.
The above goes to show that the Respondents pleaded that the founder of the Eesaro family was the Eesaro Ojukoborum called chief Odigilegun who begat Chief Fatukasi (the 5th Eesaro) and that it was Eesaro Fatukasi who begat Eesaro Fatoyo who founded the land and that the land had devolved on the children and descendants of Chief Fatoyo Fakiyesi from generations of the Eesaro Fatukasi to the present one as herein before highlighted. The Appellants only came in 2011 to try to dispossess the Respondents which was vehemently resisted.
As per the traditional evidence, acts of ownership and acts of long possession and enjoying of the land, the Appellant averred that there are material contradictions in the pleadings and evidence of the Respondents.
On who founded the land in dispute, the Appellant contended that the Respondents gave different names as per paragraph 6 &7 of the statement of claim where it was averred that it was late Chief Fakiyesi, the father of Fatoyo Fakeysi that founded the land in dispute.
PW1 gave evidence of acts of trespass by the Appellants in line with the pleading and tendered four letters written to the Appellant in 2011 with copies sent to the office of the commissioner of Police Ekiti State Command. PW2 also gave evidence in line with his statement on Oath that he had been the Claimant’s tenant for about twenty five years and had been paying yearly tribute (Isakole) to the Claimants and that no body ever come to disturb him until 2011 when the Appellants in a commando-like stormed the farmland to start destroying crops and properties on it. PW3 also pleaded and gave evidence in corroboration of PW2 and tendered a video tape of the acts of trespass.
As for the contradiction, the learned Appellant counsel made heavy weather of the law now recondite, that only material contradictions in evidence that can change the fortunes of an appeal in favour of the Appellant. See OWIE V IGHIWI (2005) ALL FWLR (PT 248) 1762 at 1759, USIOBAIFO V USIOBAIFO (2005) ALL FWLR (PT 250) 131 at 147. The so called contradiction if at all, did not affect the live issue in this appeal. At a more recent case, the Supreme Court made a definite pronouncement in the case of KAYILI V YILBUK (2015) (PT 1457) 26 at 77 per Ogunbiyi JSC (as he then was) where the Court held that
”The Court does not reject the evidence of a party simply on minor contradictions. This is moreso especially in situations where proof is based on evidence of tradition history. There are bound to be slips in the evidence of witnesses and absence of such would certainly give reasons for casting doubts on the credibility and the truth of the witnesses. Traditional history witnesses cannot come out in mathematical exactness or exactitude.” See also the case of
i. EZEKWESILI V. ONWUAGBU (1998) 3 NWLR(PT 541) 217 @ 245
ii. ATTAH V IDI (2015)2NWLR (PT 1443) @ 409 PARAS F-G.
Learned Appellant counsel submitted that the CW5, Honourable George tunji Akawa, who was the 1st Respondent on record contradicted himself under cross examination when he stated thus:
“The land in dispute was founded by Amudigbayaa. The land in dispute is along Ikere Road on the far left while approaching Ikere from Ado. It is called Awajin land”
Hitherto, CW5 had earlier stated that it was Chief Fakiyesi that founded the land while on the other hand, it was Chief Amudigbayaa.
Be that as it may, the position of the law is that, where witnesses are speaking form their own personal knowledge on traditional history, whatever conflict may exist in two competing history is not resolved on the basis of how many witnesses testified on the point of in issue instead, the history as related by each side is tested against recent facts as can be gathered from the evidence before the Court. This is the position of the law as observed by LORD DENNING IN KOJO II V BONSIE (1957) 1 WLR 1223 at 1226, where he admonishes that the proper course for a Court is ”to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable” see also POPOOLA V ADEYEMO (1992) LPELR -2922 (sic).
In the case of EZEWUDO V EZENWAKA (2016) LPELR-41019, the Court held that
thus, there are bound to be minor discrepancies in the testimony of each witness. In fact where traditional evidence is so accurate to the minutest detail in the sense of mathematical accuracy, the trial judge is entitled to suspect the veracity of the evidence.
”’ it is highly impossible for evidence of hundreds of years to be very accurate without minor differences. See SALAWU V YUSUF (2007) 12 NWLR (PT 1049)707 per Niki Tobi (of blessed memory) sated thus: ”In human life, the memory fails and in these days of raising economic inflation resulting in poverty, memories fail more regularly”.
This said alleged contradiction by the Appellant does not enhance the fortunes of the Appellant in this appeal and in view of the above authorities, the contradiction if so called are not material enough to effect the merit of this appeal. Accordingly, this aspect of the Appeal is resolved in favour of the Respondents.
Learned Appellant counsel made several submissions that the learned trial judge made wrong findings and thereby arrived at perverse judgment when the lower trial Court held thus on page 241 of the record:
”Going by the evidence before this Court which I believe the claimants are descendants of Adedeji Akawa also known as Eesaro family. Eesaro is the chieftaincy title associated with Akawas.”
Also is the wrong finding of the trial Court at page 241 of the record:
”The claimant accordingly to the evidence on record have been in possession of their land for a long time and up till now i.e. Awojin farmland.”
These findings by the trial Court according to the Appellant were not supported by evidence on record and the lower Court ought to have dismissed the Respondents claim. In view of the above, learned Appellant’s counsel prayed the Court to re-evaluate the evidence lead at the trial Court.
It is worthy of note that the evaluation and the ascription of probative value to the evidence are the primary duties of a trial Court which had the opportunity of seeing, hearing and assessing the witnesses. See the case of MAIKUDI V MUSA (2004) ALL FWLR (PT 230) 109 at 1109.
The general principle of appraisal and evaluation of evidence are set out by the Supreme Court in the case of MOGAJI & ORS V ODOFIN & ORS (1978) 4 SC 373. In deciding this, the Court must give consideration to and evaluate all the evidence led in the case as a whole, where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of the Court of Appeal to substitute its own views for those of the trial judge. See ATOLAGBE V SHORUN (1985) 1 NWLR 360, AGBONIFO V AIWEREOBA (1988) 1 NWLR at 325, PAULINUS ONWUCHURUBA V ANTHONY ONWUCHURUBA (1993) 5 NWLR 185 at 1990-200.
In the instant appeal, the learned trial judge, the learned trial judge at page 242 of the records said:
”Going by the evidence before this Court which I believe the claimants are descendants of Adedeji Akawa also known as Eesaro family. Eesaro is the chieftaincy title associated with Akawas. Chief Fakiyesi begot Fatoyo Akawa who founded the Oke-Ureje and Awajin farmlands. The land of the Defendants is at Igidu which is different from the land of the claimants. The claimants according to evidence on record have been in possession of their land for a long time and up till now i.e. Awajin farmland. The Defendants even admitted that where the Ewi gave them land is called Igidu and it is on the right hand side while going to Ikere and whereas Awajin land is on the left.
?From the overwhelming evidence before this Court, I hold that from the totality of the pleadings and the evidence adduced by the claimants, the claimant are entitled to the relief sought. The claimant case therefore succeeds.”
It is therefore my view that the above findings of the trial Court are not perverse and have not occasioned a miscarriage of justice. This Court will not therefore interfere with same. See the cases of IBEH V STATE (1997) 1 NWLR (PT 484) at 632 and AMUSA V STATE (2002) 2 NWLR (PT 750), SUNKAMI V THE STATE (2010) LPELR-4996(CA).
On the award of N1million naira general damages for trespass and order of injunction, it is submitted that the Respondents are not entitled to same and relied on the case of LAWSON V AJIBULU (1997) 6 NWLT (PT 507) 14 at 36.
The award of damages is basically to compensate the claimant for the loss suffered as a result of the wrong done by the opposing party. See OWOO & ORS V EDET (2011)LPELR 4812 (CA)
On the quantum damages, the Court of Appeal will not generally alter an award of damages unless it is established that the trial judge proceeded on a wrong principle of law or that the award was wrongly manifestly too large or too simple. See BHOJSONS PLC V DANIEL KALIO (2006) ALL FWLR (PT 312) 2038-2064, GARI V SEIRAFINA NIG LTD (2008) 2 NWLR (PT 1070)20.
It is trite that damages follow upon a breach of a right or invasion of same. In this case, it is the commando-like invasion of the Appellants according to learned Respondents counsel on their farmland and the destruction of their farm crops and properties on the land in dispute.
Even the Appellants have not complained that the award is either too high or very low. The crux of their complain is that the lower Court ought not to have awarded same in view of the insufficient evidence on record. This to my mind is not enough attack on the damages so awarded nor does the authority of authority of LAWSON V AJIBULU (supra) cited by the Appellant help his case. What I am saying therefore is that there is nothing in this case as per the Appellants argument that the damages so awarded are excessive.
I therefore do not find any reason to tamper with the award on damages. See IJEBU-ODE L.G. V. BALOGUN & CO LTD (1991) NWLR(PT 156) 136, ODUWOLE V WEST(2010) 5 SCNJ 97 at 108, KAYDEE VENTURES LTD V MIN. FCT (2010) 7 NWLR (PT 1192)171 at 205 at 212-214 the Supreme Court per Muhammad JSC held
”it is trite law, that an Appellate Court shall not disturb the award of damages by the trial Court. The award of damages can only be altered by an Appellate Court when the award is shown to be either manifestly too high or manifestly too low or was made on a wrong principle of law that the Appellant Court is convinced that the award is made as an entire erroneously estimate.”
On the whole, this appeal lacks merit and it is hereby dismissed. The judgment of the Honourable Justice C.I. Akintayo of Ekiti State High Court delivered on the 19th December 2014 in favour of the Respondents is hereby affirmed. Cost of N50, 000.00 is hereby awarded against the Appellant.
Appeal Dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of reading in draft the judgement just delivered by my learned brother, PAUL OBI ELECHI, JCA. All the issues for determination in the appeal have been dealt with extensively and exhaustively. I have nothing useful to contribute to the well articulated reasonings and the conclusion arrived at in the lead Judgement. I can only therefore adopt same as mine and accordingly dismiss the appeal. Same is dismissed
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
Adebayo Adewumi Esq. with him, Oyetola Babalola and Olawale Ajayi, Esq.For Appellant(s)
Obafemi Adewale Esq. with him,
O.P. Akinola, Esq., Adeyemi Adunumi Esq., Rashidat Ajise and Felix Emmanuel Esq.For Respondent(s)
