CHIEF OLUSEGUN AYODELE v. JUBILEE LIFE SAVINGS & LOANS LIMITED (2019)

CHIEF OLUSEGUN AYODELE v. JUBILEE LIFE SAVINGS & LOANS LIMITED

(2019)LCN/13587(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2019

CA/IB/261/2016

RATIO

CLAIM FOR DAMAGES IN LAND LAW FOR TRESPASS AND INJUNCTION WILL BE GIVEN IN FAVOUR OF THE PERSON WHO CAN ESTABLISH A BETTER TITLE
Now, it is the law, that in a claim of damages for trespass and injunction, judgment will be given in favour of he who is able to establish a better title. This is because though trespass is a claim based on possession, the law ascribes possession to the party who is able to establish a better title. See Alibaloye v. Akogun & Ors(2015) LPELR 25207 (CA); Bankole v. Dada (2003) 11 NWLR (pt.830) 174 at 228 ? 229 and Owhonda v. Ekpechi (2003) 17 NWLR PER HARUNA SIMON TSAMMANI, J.C.A.

APPEAL: AN APPEAL COURT CAN INTERFERE IN THE DISCRETION OF THE TRIAL COURT WHEN THE TRIAL COURT FAILED TO PROPERLY EVALUATE EVIDENCE BEFORE IT

The law is settled that when a Court of first instance fails to properly evaluate the evidence before it, an appellate Court is in a position as the Court of first instance to reappraise the evidence on record and make appropriate findings thereon. See OYEKANMI VS. NEPA (2000) 15 NWLR (PT. 690) 414; DADA & ORS. VS. BANKOLE & ORS. (2008) 5 NWLR (PT. 1079) 26; SHA (JNR) V. KWAN & ORS. (2000) 8 NWLR (PT. 670) 685: ANYANWU & ORS. VS. UZOWUAKA & ORS. (2009) LPELR 515 AT 17 PARAGRAPHS E G.
In EBBA & ORS. VS. OGODO & ORS (2000) LPELR 983 AT 66 PARAGRAPHS C ? F, the Supreme Court per Ejuwunmi JSC as follows:
“Though, it is settled law that an appellate Court would not easily interfere with the judgment of the Court below, yet where the judgment of the Court below was reached either upon erroneous interference drawn from finding of facts or that its application of the law to properly found facts is perverse and/or erroneous, then the appellate Court has a duty to intervene to correct the injustice so caused. See FATOYINBO VS. WILLIAMS (1956) 1 ESC 87: (1956) SCNLR 274: SURAKATU J. AMJDA vs. OSHOBOJA (1984) 7 SC 68: FINNIH VS. IMADE(1992) 1 NWLR (PT. 219) 511.” PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

CHIEF OLUSEGUN AYODELE
(For himself and on behalf of Liworu family of Makun, Sagamu) Appellant(s)

AND

JUBILEE LIFE SAVINGS & LOANS LTD Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court of Justice sitting at Sagamu, Coram: A. Rotimi-Balogun, J., delivered on the 12th day of May, 2016 in Suit No: HCS/63/2012.

By a Writ of Summons dated and filed on the 23/4/2012 and 1st Amended Statement of Claim dated and filed on the 24/12/2013, the Appellants who were Claimants in the Court below sought the following reliefs:
(i) A declaration that the Claimant?s family are the rightful persons entitled under Yoruba Native Law and custom to the grant of statutory right of occupancy over the piece or parcel of land verged ?Black? in Composite Plan No: LSAT/OG73 dated 2nd April, 2012 consisting of 8.685 hectares or 21.460 acres.
(ii) The sum of N50 million being special and general damages for trespass committed by the Defendant, its servants, agents or privies when it unlawfully entered the land in dispute sometimes in January, 2012 and uprooted cash crops belonging to the Claimant?s family.
(iii) An Order of perpetual injunction restraining the Defendant, its

servants, agents or privies from committing further acts of trespass on the said land.

In defence, the Respondent who was the Defendant filed a 24 paragraphs statement of defence on the 4/7/2012. The Plaintiffs/Appellants filed a Reply to the Statement of Defence. It was filed on the 14/2/2013.

The Appellants claimed that they inherited the land in dispute situate at Simawa in the outskirts of Sagamu in Ogun State, from their ancestor, one Liworu, a Prince of Ile-Ife who founded the land several years ago. The Respondent on the other hand, contended that she bought the land from the Jelenke family. That the Jelenke family inherited the land through their progenitor Ogunsanya Jelenke one of the three children of one Nuren who migrated from Ile-Ife and founded the land several years ago.

?At the trial, the parties called two witnesses each. The Appellants as Claimants tendered three Survey Plans which were admitted in evidence as Exhibits ?A?, ?B? and ?C?. Other exhibits were tendered, admitted and marked as Exhibits ?D?, ?E?, ?F?, ?G?, ?H?,

?I?, ?J? and ?K? respectively. At the close of evidence, counsel filed and Exchanged Written Addresses. Thus, in a considered judgment delivered on the 12th day of May, 2016, the learned trial Judge dismissed the Plaintiff?s/Appellant?s claims entirely. Being dissatisfied with the judgment, the Appellants filed this appeal.

The Original Notice of Appeal was dated the 11/7/2016 and filed on the 12/7/2016. It consisted of four (4) Grounds of Appeal. This appeal was therefore heard on the said Notice of Appeal when the parties filed and Exchanged Briefs of Arguments in compliance with the Rules of this Court. The Appellant?s Brief of Arguments was dated the 19/8/2016 and filed the same day. Three issues were distilled therein for determination as follows:
1. Whether, considering the entire claims of the Claimant before the lower Court vis-a-vis the evidence led by the Claimant and his witness, the Honourable Court below ought not to have entered judgment in his favour.
?2. Whether from the totality of the case of the parties before the Honourable Court below, the Honourable Court below was

right to have refused the Claimant?s claims before it.
3. Whether the Honourable Court below was right after resorting to the decision in Kojo v. Bonsie and finding that the traditional history and or story of the Defendant is not reliable and despite the finding, the trial Court still went ahead to dismiss the Claimant?s claim.

The Respondent?s Brief of Arguments was dated the 22/9/2016 but filed on the 23/9/2016. Therein, only one issue was formulated for determination as follows:
?Whether, on the totality of the evidence adduced by both parties at the trial, the Court below was right in dismissing the Appellant?s (Claimant?s) suit/claims primarily on the grounds that the traditional history given in evidence by the Appellant was INCONCLUSIVE.?

Upon a very sober consideration, I am of the view that this appeal can be properly and comprehensively determined on the issues formulated by the Appellant. However, those issues shall be considered together.

?Now on issue one, learned counsel for the Appellant contended that, it is the trite law that once a party makes a claim for declaration of

title to land, damages and injunction as done in the instant case, title to the land in dispute has been questioned; and to succeed in his claims, the Plaintiff is duty bound to plead and prove with cogent and convincing evidence, all the material facts which ground his claims. The case of Olaniyan & Ors v. Fatoki (2014) All FWLR (pt.717) 703 at 715 ? 716 paragraphs H ? A was then cited to submit that, even where the Defendant admits the claim or fails to file a Defence, the Plaintiff can only succeed if he adduces evidence in proof of the facts pleaded. The cases of Idundun v. Okumagba (1976) 9 ? 10 S.C. 227 and Nwaokarobia v. Uzoho (2007) FWLR (pt.376) 729 at 743 were also cited to submit that, the Claimant may however make use of the aspect of the Defendant?s case that supports his claim. The case of Eze v. Atasie (2000) FWLR (pt.13) 2180 at 2189 was further cited in support.

Learned Counsel for the Appellant went on to submit that, in a claim for declaration of title to land based on inheritance, the Claimant must plead and prove with cogent and convincing evidence, facts upon which he predicates his claims. The

case of Meka v. Aniafulu (2006) All FWLR (pt.309) 1465 at 1472 was then cited to submit that, in claim for declaration of title predicated on inheritance, the Claimant must plead and give evidence of the person who founded the land and all persons who inherited through him through the ages to the present Claimant. That such land could be acquired through either grant, first settlement and deforestation of virgin land, gift, sale, conquest or inheritance as the case may be. The cases of Nruamah v. Ebuzoeme (2013) All FWLR (pt.681) 1426 and Idundun v. Okumagba (supra) were cited in support. That all the five methods of proving title to land need not be proved.

Learned Counsel for the Appellant also submitted that, the Appellants led evidence before the Court to establish his claim of title to the land in dispute through traditional evidence. That the Appellant adduced evidence of the founder of the land and his predecessors in title as well as how the title to the land devolved on him as head of the Liworu family. Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the First Amended Statement of Claim and the testimony of the Claimant who testified as the PW1 were referred to.

It was then submitted that upon such pleading and evidence, the learned trial Judge found that, the Appellants were able to prove how title devolved on them by traditional history. The cases of Achiakpa v. Nduka (2001) 14 NWLR (pt.743) 623 and Alli v. Alesinloye (2000) 6 NWLR (pt.660) 177 were cited in support. We were accordingly urged to hold that the Appellant having successfully placed cogent and compelling traditional history of their claim to the land in dispute, the trial Court ought to have granted the Appellant?s claims.

Learned Counsel for the Appellant went on to submit that, the learned trial Judge accepted the traditional evidence of the Appellant when he placed the traditional history of the Appellant (Plaintiff) and the Respondent (Defendant) side by side. That it is clear from the pleadings of the Respondents and their oral evidence led in support, that the Respondents were unable to lead credible and convincing evidence on how the Respondent?s Vendors came to own the land in dispute. The cases of Orunengimo & Anor v. Egebe & Ors (2008) All FWLR (pt.400) 655 and Amayo v. Erinmwingbovo (2006) All FWLR (pt.318) 613 were

then cited to submit that, the learned trial Judge having found that the case of the Defendant/Respondent on how his vendor became the owner of the land in dispute had crumbled, he ought to have granted the Claimant/Appellant?s claims. We were accordingly urged to resolve this issue; issue one, in favour of the Appellants.

On issue two (2), learned counsel for the Appellant submitted that, civil cases are determined on the preponderance of evidence. The case of Popoola v. Adeyemo (1992) 8 NWLR (pt. 257) 1 was then cited to further submit that all the Court is required to do is to consider the evidence of both parties and determine which has weight over the other. That the traditional evidence led by the Respondent was conflicting and inconclusive and therefore could not grant them title; and that considering the totality of the evidence led by both parties, the Appellant?s case is conclusive and thus entitling him to the judgment of the Court. That in proof, Exhibits ?A?, ?B? and ?C? were tendered by the Appellants and upon due consideration of those exhibits, and the testimonies of the witnesses, the trial

Court found at pages 146 ? 147 of the record of appeal that the identity of the land in dispute was not in issue. Furthermore, that surprisingly, the learned trial judge did a volte face to rule against the Appellant.

Learned Counsel for the Appellant then contended that, whether the land in dispute was referred to as Basorin, Igbo Liworu, Makun Sagamu, Simawa or Agbowa Makun Sagamu, the most important thing is that, the parties were referring to the same land, and that they are all ad-idem on the location of the land in dispute. Referring to the case of Makanjuola & Anor v. Balogun (1989) 3 NWLR (pt.108) 192 at 204, learned counsel submitted that, the fact that the parties were ad idem on the location of the land was captured by the learned trial judge at page 146 of the records. That, in any case, the Respondent?s Survey Plan was tendered by the Appellant and admitted as Exhibit ?B?, without objection and that it is the same Plan that was tendered through DW1 and admitted as Exhibit ?I?. That it is the same Plan that was also referred to in the Sales Agreement (Exhibit ?J?). Furthermore, that the

Appellant tendered Exhibit ?C? which is a Composite ?Plan? encompassing Exhibits ?A?, ?B? and ?I?, which clearly depict the land in dispute without any doubt. The cases of Makanjuola & Anor v. Balogun (supra) and Aiyeola v. Pedro (2014) All FWLR (pt.744) 17 were then cited to urge us to hold that, in view of the finding of the trial Court on the traditional history of the parties and the identity of the land in dispute, the refusal of the trial Court to grant the reliefs sought by the Appellant is not justified.

On issue three (3), I find that most of the arguments therein, were canvassed in issues 1 and 2. However, learned counsel for the Appellant cited the case of Uwah v. Uwah & Anor (2014) All FWLR (pt.760) 1219 at 1245 to contend that, where a defendant fails to prove his root of title, his defence to the plaintiff?s claim must fail. That, once the trial Court finds that traditional history of one of the parties is credible while that of the other party is not credible, there will be no need to apply the principle in Kojo II v. Bonsie (1957) 1 W.L.R. 1223.

The case of Oyadare v. Keji & Anor (2005) All FWLR (pt.247) 1583 at 1600 was also cited in support. It was then submitted that, the Jelenke Family, who are the Respondent?s Vendors, having failed to lead credible traditional evidence of their title to the land in dispute, the Respondent?s defence was bound to fail.

On the issue of the Appellant?s Family not being a Ruling Family in Simawa, learned counsel for the Appellant argued that the case before the trial Court was not a Chieftaincy dispute, and therefore, the Appellant was under no obligation to join issue with the Respondent thereon. The case of Akpaji v. Udemba (2009) All FWLR (pt.471) 811 at 831 was cited in support. The case of Akeredolu & Ors v. Akinremi & Ors (1989) 3 NWLR (pt.108) 164 was then cited to submit that, failure of the Appellant to join issue on whether the family of the Appellant?s progenitor is one of the Ruling houses in Simawa town, is not fatal to the Appellant?s case. That, the crucial issue before the trial Court is the ownership of the parcel of land situate at Igbo Liworu along Ewu-Eleku/Okerala Road, Simawa, Sagamu, Ogun State. On that note, we were

urged to hold that, the conclusion of the Court below, that the Appellant has not made out a case justifying a grant of the declaration sought is erroneous; and to allow the appeal and to grant the reliefs sought by the Appellants.

In response, learned counsel for the Respondent contended that, the Appellant?s evidence of traditional history failed to establish how their progenitor came to settle in Simawa, the undisputed location of the land in dispute. It was then contended that, by using the word ?attempt? in the summation of the traditional evidence led by the Appellant, the learned trial Judge cannot legitimately be said to have agreed that the Appellant successfully proved his claim based on traditional history. In other words, that by using the word ?attempt?, the learned trial Judge did not believe that the Appellant proved his claim of title to the land in dispute by traditional history.
?
Learned counsel for the Respondent also contended that, on the issue of contradiction in the names given to the land in dispute by the parties, there was no contradiction in the findings of the learned trial Judge. That in the

Court below, both parties agreed that the land in dispute is located in Simawa, Sagamu, Ogun State but disagreed as to the identity of the land in Simawa. That, while the Appellant had averred and led evidence to the effect that his family?s land is called ?Igbo Liworu? in Simawa, the Respondent had averred and led evidence to the effect that the land is called ?Bashorin in Simawa? and further contending that there is no such place as ? ?Igbo Liworu? in Simawa. It was thus argued that, to that extent, the parties did not dispute the location of the land but its identity within Simawa. Furthermore, that the Learned trial Judge rightly observed that, both Survey Plans tendered by the Appellant as Exhibits ?A? and ?C? are titled ?Liworu family land along Ewu-Eleku/Okerale Road, Simawa via Sagamu?, the Respondent?s Survey Plan, (Exhibit ?B?) is titled ?Jubilee Life Savings & Loans Limited, Off Simawa/Sagamu Road, Bashorin Village, Sagamu Local Govt. Area.? That the CW1, testified under cross-examination that:
?Going by the content of

Exhibit ?C? which is the Composite Plan, the alleged land of the Claimant?s family shares boundary with the Jelenke Family land. Between the Claimant land and Jelenke family land, it is the Jelenke family land that is close to Shimawa/Sagamu Road.”

Learned Counsel for the Respondent then submitted that, going by the evidence of the CW1 above, both parties are ad-idem as to the location of the land in dispute at Simawa but vehemently disagreed as to the identity of the land, i.e., whether it is called ?Igbo Liworu? or ?Bashorin? in Simawa. That, in dealing with the issue of identity of the land in dispute, the learned trial Judge disregarded the differences in the names the parties gave to the land in dispute. It was then submitted that, the Respondent had raised the issue of identity of the land in dispute in paragraph 22(i) and 22(ii) of the Statement of Defence, when they challenged the Appellant?s traditional history of the land which traced their progenitor?s final settlement at Agbowa Makun, which is a location different from Simawa. That, the Appellant did not controvert those pleadings of

the Respondent nor cross-examine the Respondent on that vital issue.

Learned Counsel for the Respondent went on to submit that, the Appellant had the opportunity to controvert the pleadings of the Respondent that Simawa and Agbowa Makun are not in the same location in Sagamu. That it is now late in the day for the Appellant to contest the fact that Simawa is not the same as Agbowa Makun. It was then submitted that, in law when a fact is not disputed in the pleadings nor challenged in cross-examination, the leaned trial judge is at liberty to accept same as the truth.

Learned Counsel for the Respondent went on to submit that, in arriving at his decision, the learned trail Judge relied on the case of Achiakpa v. Nduka (2001) 14 NWLR (pt.734) 623 to shed light on the issue of identity of the land distinct and different from the issue of location of the land. It was then contended that, the judgment of the trial Court cannot be impugned by the Appellant as the traditional history led by the Appellant show that Liworu, the Appellant?s progenitor passed through some named places before finally settling at Agbowa Makun, Sagamu; and there is no

evidence that Liworu moved out of Agbowa Makun. Learned counsel then submitted that, in rebuttal of the Appellant?s traditional history, the Respondent in its pleading and evidence pointed out the irrelevance of the Appellant?s traditional history to the land in dispute, as the traditional history given by the Appellant has no bearing on the location of the land in dispute. The cases of UBN v. Jase Motors (Nig.) Ltd (1997) 7 NWLR (pt.513) 387; Nwabuoku v. Ottih (1961) 2 SCNLR 232 and Nigerian Maritime Service Ltd v. Afolabi (1978) 2 S.C. 79 was cited in support, and to further submit that, the learned trial Judge was right in accepting as established, the geographical truth that Simawa and Agbowa Makun are two different locations in Sagamu.
?
Learned Counsel for the Respondent then submitted that, if it is accepted as a geographical truth that Simawa and Agbowa Makun are in two different locations in Sagamu, then the traditional history of the Appellant failed to establish his progenitor?s first settlement on the land in dispute. That under Cross-Examination, the Appellant in answer to the question, how he could reconcile his evidence of

traditional history which traced his progenitor?s final destination to Agbowa Makun with his progenitors first settlement in a different location in Sagamu, gave an answer which recognized the fact that Simawa and Agbowa Makun are two different settlements. It was then submitted that, the principle in Kojo II v. Bonsie (supra) is no authority for granting declaration of title to a land in a location different from that pleaded and established by the Claimant?s evidence of traditional history, no matter how weak the Defendant?s case may be. That it is so because, where an action is for a declaratory relief, the Plaintiff must succeed on the strength of his own case. The cases Achiakpa v. Nduka (supra); Abeje v. Alade (2011) FWLR (pt.593) 1969 and 1989; Adole v. Gwar (2008) 5 MJSC 38 at 56; Ali v. Salihu (2011) 1 NWLR (pt.1228) 227 and Jiya v. Awumi (2011) NWLR (pt. 1238) 467 were cited in support. We were accordingly urge to hold that the Appellant failed to link his progenitor to the land in dispute at Simawa.
?
Learned Counsel for the Respondent also contended that, the learned trial Judge also found that the Appellant did not establish

any evidence of contemporary events on the land that could lend credence to the Appellant?s inconclusive traditional history. That particularly, the learned trial Judge found that though the Appellant pleaded that his family granted land to customary tenants yet none of those tenants was called to give evidence. Furthermore, that the Respondent cut down several economic trees on the land and constructed an earth road but was never challenged, yet the Appellant had pleaded that tenants were on the land and that the land was never abandoned. The case of Adedeji v. Oloso (2007) 3 M.J.S.C. 56 was then cited to submit that, failure to call any of his family?s said customary tenants amounted to failure to call vital evidence in support of his case.
?
Learned Counsel for the Respondent referred to the findings of the trial Court on the traditional history of the Appellants at page 154 of the Record of Appeal, and the statement of the DW2 (Oladega Jelenke) in paragraph 23(c) of his Written Statement on Oath at page 30 of the Record of Appeal, to contend that, the failure of the Appellant to challenge that testimony on the issue of Ruling houses in

Simawa is fatal to the case of the Appellants. That it is improbable that a Prince of Ile-Ife would migrate from Ile-Ife to found or first settle on a large expanse of land without being a Ruling House in the area. We were accordingly urged to dismiss the Appellant?s claim, in view of their inability to establish a nexus between the Appellant?s progenitor and the land in issue.

In conclusion, learned counsel for the Respondent referred to the findings of the learned trial Judge at page 150 lines 7 ? 26 of the Record of Appeal, to submit that, the learned trial Judge erred in his finding on the traditional evidence given by the Respondent. That failure of the Respondent?s witness to give the precise number of children the progenitor of the Respondent?s Vendors, does not detract from the fact that such progenitor migrated from Ile-Ife and settled on the land at Simawa. That had the witness failed to mention the name of the progenitor or traced the movement of the progenitor, his testimony would have failed to substantiate the traditional history. Citing the case of Awoyoolu v. Aro (2006) 4 MJSC 128 at 144, learned counsel

submitted that, since the Appellant did not challenge the evidence of migration of the Respondent?s progenitor from Ile-Ife to the land in dispute, the learned trial Judge ought to have found in favour of the Respondent. That though the Respondent did not appeal against that finding of the trial Court, this Court can by virtue of Section 16 of the Court of Appeal Act, 1976, reverse that part of the judgment of the trial Court and substitute same with a finding in favour of the Respondent. On that note, we were urged to dismiss the appeal.

The Appellant filed a Reply on points of law. It was filed on the 7/10/2016. Therein, learned counsel for the Appellant contended that, contents of pleadings are read wholistically in order to discern the gist of the case put forward by the parties. The case of Sterling Bank Plc v. Ola Falola (2015) All FWLR (pt.774) 1 was then cited to submit that, the failure of the learned trial Judge to consider all pleadings of the Appellant made it impossible for him to fully appreciate the case placed before him by the Appellant. That the learned trial Judge considered paragraph 5 of the First Amended Statement of Claim

without considering paragraphs 3, 4, 12 and 14. Furthermore, that it was failure to consider those paragraphs of the First Amended Statement of Claim that led the learned trial Judge to hold that the traditional evidence of the Appellant?s progenitor is not conclusive because Agbowa and Simawa are not the same.
?
It was further contended that, several names were given to other parcel of land first settled upon by the Appellant?s progenitor while the Respondent?s Vendors gave different names to the said parcel of land. That in any case, the Appellant tendered a dispute plan (Exhibit ?A?) and a Composite Plan (Exh. ?C?) showing that the parcel of land claimed is verged ?Black? as the area trespassed upon by the Respondent. That in any case considering both the oral and documentary evidence presented before him, the learned trial Judge was satisfied that the Claimant has been able to identify the land in dispute. That contrary to the findings of the learned trial Judge, the Appellant never stated either in the pleadings or evidence that the land in dispute is situate at Agbowa. That what was pleaded is that

the Appellant?s ancestor had several parcels of land in Sagamu which were named in paragraph 14 of the First Amended Statement of Claim but that the land in dispute falls within Igbo Liworu.

Learned Counsel for the Appellant went on to submit that, the Appellant?s traditional history having been affirmed to be credible, and the Appellant having placed the dispute Survey Plan including the Composite Plan before the Court, the trial Court ought to have granted the reliefs sought. The case of Addah & Ors v. Ubandawaki (supra) was cited in support. We were accordingly urged to discountenance the submission of the respondent that there is a distinction between location of the land and its identity. The case of Makanjuola & Anor v. Balogun (supra) was then cited to urge us to set aside the judgment of the trial Court and grant the reliefs sought by the Appellants particularly when the traditional history led by the Appellant was not only conclusive but cogent, accurate and compelling.

On the failure of the Appellant to call any of his customary tenants to testify, learned counsel for the Appellant argued that, from the testimony of the

Appellant, the area of land trespassed upon by the Respondent which forms the fulcrum of this suit was occupied by the Appellant?s family as the right of the Esulana/Okunuga family as customary tenants on part of the land had been forfeited by the judgment in HSC/97/96; and that it is this same family that the Respondent expected the Appellant to call as witnesses. That to do that would be calling an adversary to testify in your case; a fact which was condemned by the Supreme Court in Ibrahim v. Shagari (1983) 2 SCNLR 176.

Learned Counsel for the Appellant further argued that, there was a missing link between the Respondent?s Vendors and their predecessors-in-title or ancestors. That such gap cannot be filled by either the trial Judge or address of counsel. The case of Addah & Anor v. Ubandawaki (supra) was cited in support and to submit that the Respondent?s witness did not lead evidence at the trial to establish such link between the Respondent and the predecessors-in-title.

It was further observed by learned counsel for the Appellant that the Respondent who did not Cross-appeal nor filed a Respondent?s notice is

praying this Court to alter the findings of the learned trial Judge on the traditional history of the Respondent?s Vendor and to substitute same with a more favourable finding. The case of Addah & Ors v. Ubandawaki (supra) was cited in support, and to urge us to discountenance the arguments of the Respondent on this point. On that note, we were urged to allow the appeal.

Now, a cursory perusal of the claims of the Appellant who was Plaintiff in the Court below, would disclose that essentially the claim was for declaration of title to the parcel of land in dispute. The other claims of damages for trespass and perpetual injunction flow from the first claim, which is the principal or main relief sought. It is the settled law that in an action for declaration of title to land, the Claimant or Plaintiff has the onus of proving that he is entitled to the declaration sought. He does that by adducing cogent and credible evidence to the satisfaction of the Court. To succeed, the Plaintiff must rely on the strength or weight of the evidence adduced by him and not on any weakness of the defence; not even on admission by the Defendant. This is because, a

declaratory relief cannot be granted in the absence of evidence. The Plaintiff may however rely on any aspect of the Defendant?s case which supports his claim. See Nruamah & Ors v. Ebuzoeme & Ors (2013) 13 NWLR (pt.1372) 474; Adeleke v. Iyanda (2001) 13 NWLR (pt.729) 1 and Orianzi v. A.G; Rivers State & Ors (2017) LPELR ? 41737 (SC). The burden rests throughout on the Plaintiff which must be discharged on a balance of probabilities. See Ayanwale v. Odusami (2011) 18 NWLR (pt.1278) 328 at 341 and Eya v. Olopade (2011) 11 NWLR (pt.1259) 505.
Where the Defendant has not counter-claimed, he has no burden to proof anything. Thus, where the Defendant has not Counter-Claimed, he may decide not to file any defence, or where he has filed any, he may decide not to call evidence and dare the Plaintiff to proof his case. See Edeani v. Nwavu & Ors (2003) LPELR – 12330 (CA); Nkwocha v. Ofurum (2002) 5 NWLR (pt.761) 506; Diko v. Ibadan South-West Local Government and Nruamah v. Ebuzoeme (supra). Thus, in Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353 at 394 ? 395 paragraphs H ? B, Onnoghen, JSC (as he then was) said:<br< p=””

</br<

This principle of law places the burden of proof on the Plaintiff seeking declaratory reliefs from the Court, whether the Defendant calls evidence or not, as it is also a settled principle of law that a declaratory relief cannot be granted without the Plaintiff calling evidence. In other words, the relief of declaration of title or otherwise cannot be granted where the Defendant defaults in filing his pleadings or where he files one, he is absent on the date fixed for hearing, without the Plaintiff testifying or calling evidence to establish his claim. It therefore does not matter in law in the circumstances of the relief of declaration of title, that the Defendant/Appellant in the instant appeal did not testify or is alleged to have abandoned his defence to the claim of the Plaintiff/Respondent.?
?Where a Defendant who has not Counter-Claimed decides to call evidence, the trial Court is expected to evaluate the evidence adduced by the Plaintiff in order to see whether he has made out a prima facie case, which if not controverted by the defence, would entitle him to the judgment of the Court. If such prima facie case is disclosed

by the pleadings and evidence led by the Plaintiff, the trial Court would then weigh such evidence vis-a-vis the evidence led by the defence, in order to determine which side preponderates. If the evidence led by the Plaintiff weighs over that of the defence, judgment would be for him otherwise his claims would be dismissed. See Odewande & Ors v. Owoeye & Ors (2014) LPELR ? 24421 (CA); Atanda & Ors v. Ajani & Ors (1989) 3 NWLR (pt.111) 511 and Umar v. Bailey & Ors (2018) LPELR ? 44285 (CA). Thus in the case of Wachukwu & Anor v. Owunwanne & Anor (2011) 14 NWLR (pt.1266) 1, Muhammad, J.S.C. (as he then was) held as follows:
?Now, the age-long established principle of law in relation to burden of proof on a Plaintiff seeking a declaration of title to land is for him to establish his case on preponderance of evidence by setting up a prima facie case whereupon the trial Court examines the evidence put forward by both parties and weigh same on the imaginary scale with a view to making a finding as to which side preponderates

?Now, there are five ways by which a Plaintiff may claim title

to land in Nigeria. One of such ways is by traditional history or evidence. Those five ways were set out by the Supreme Court in the locus classicus of Idundun v. Okumagba (1976) 9 ? 10 S.C. 227 at 246 ? 250. The principles laid down in Idundun v. Okumagba (supra) have been adopted and applied by the Supreme Court; and by necessary extension all Courts in Nigeria including this Court in plethora of cases such as Nwabuoku & Ors v. Onwordi & Ors (2006) LPELR ? 2082 (SC); Adisa v. Oyinwola & Ors (2000) LPELR ? 186 (SC); Kalejaiye v. Gabbis Int?l Co. Ltd & Anor (2018) LPELR ? 44748 (CA);I.A.D. (Nig.) Ltd v. Samparaco (Nig.) Ltd (2019) LPELR ? 47137 (CA), Aigbobahi & Ors v. Aifuwa & Ors (2006) 6 NWLR (pt.976) 270. In the instant case, the pleadings and evidence disclose that the Appellant as Plaintiff claimed title to the land in dispute via traditional history, one of the five established ways of proving ownership of or title to land in Nigeria.
The law as settled by the Supreme Court is that, where a Plaintiff claims ownership of land through traditional history, he has to lead cogent,

un-contradicted and credible evidence which must establish the following facts:
(a) the person who founded the land in dispute;
(b) how that person founded the land, i.e. whether through first settlement, grant, conquest, etc; and
(c) the chain of devolution from the original owner or founder down the line of succession to himself without leaving any unexplained or unexplainable gaps in the line of succession.
Where the evidence as to the founder of the land is incredible or unclear; or there is an embarrassing gap in the chain of succession which is not explained, the traditional history is bound to fail. See Falomo v. Onakanmi (2005) 11 NWLR (pt.935) 126; Anyafulu & Ors v. Meka & Ors (2014) 7 NWLR (pt.1406) 396; Odunukwe v. Ofomata & Anor (2010) 18 NWLR (pt.1225) 404 and Dakolo v. Rewane ? Dakolo (2011) 16 NWLR (pt.1272) 22 at 47 ? 48. Thus, in Pada v. Galadima (2018) 3 NWLR (pt.1607) 436 at 456 paragraphs C ? E, Sanusi, JSC said:
?It would appear to me that both parties in this appeal have relied on traditional history or evidence as rightly found by the two lower Courts. It is trite law

that in order to establish the traditional history of land relied on as root of title, a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and also lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been or cannot be explained. In short, the pleadings of devolution and the evidence in support must be reliable and cogent, otherwise the claim of title will fail

In the instant case, the Plaintiff/Appellant pleaded the traditional history of the root of title of his Liworu family to the land in dispute at Paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the First Amended Statement of Claim as follows:
4. The Claimant avers that the said land forms part or portion of a large hectares of land which from time in memorial was first settled upon by LIWORU, the ancestor of the Claimant, several years ago.
5. The Claimant avers that LIWORU, a prince of Ile-Ife, migrated from Ile-Ife passing through Ijebu-Ode, Okun-Owa, Agege, Badore and Agbele before finally settling at AGBOWA MAKUN SAGAMU.
?6. LIWORU begat

JIGBASE who begat OGUNSOWO and OLOWODAGBAMU.
7. OGUNSOWO begat TEWOGA AKODU and EFUNTUNDE.
8. OLOWODAGBAMU begat AMOSU and EFUNDEKO while AMOSU begat ABOSEDE and OBAFEMI but EFUNDEKO begat EFUNTIMPE
9. TEWOGA AKODU begat OYEBOLA, ADETUNJI, OGUNYINKA, OGUNYOMBO, OLAWANLE and ONI.
10. EFUNTUNDE begat SIKUOLA, ADEKOYA GBADEBO AND AYODELE and AYODELE begat the Claimant.
11. OYEBOLA begat DUROTOLUWA and OLORUNWO AKODU, etc.
?
The Appellant herein, who testified as the CW2 gave evidence of the above pleaded facts in paragraph 2 of his Amended Written Statement on Oath. He was not seriously challenged on that testimony by way of cross-examination by the Respondent. At pages 148 of the record of appeal, the learned trial judge copiously cited and relied on the traditional history pleaded by the Appellant. The learned trial Judge instead of making findings on the traditional history of the Appellant as pleaded and evidence led thereon through CW2, proceeded to consider the traditional history of the Respondent?s Vendor on the land in dispute. To that end, paragraphs 16, 17 and 19 of the Statement of Defence and the

testimony of the DW2 (Oladega Ogunyinka Jelenke); and also his testimony under cross-examination, were referred to by the learned trial Judge who found at page 150 of the record of appeal as follows:
?With this testimony during cross-examination by the sole witness who was meant to give evidence in support of their pleading, the traditional history of the Defendant crumbled. The Defendant however is only defending this action. It is not Counter-Claiming, therefore, the burden is on the Claimant who wants declaration of title to the land to prove his traditional history credibly, plausibly and cogently.?
?
It is obvious therefore, that it was the finding of the learned trial Judge that the traditional history of the Respondent?s vendor had crumbled, as it was not credible, having been demolished in cross-examination. Learned Counsel for the Respondent has now urged us to review that finding of the trial Court and to substitute same with a finding favourable to the Respondent. The Respondent who did not file any cross-appeal nor a Respondent?s Notice could not urge us to find contrary to the decision of the learned trial Judge.

Even if a cross-appeal had been filed, it is patently clear that it would be devoid of any merit. I say so in view of the Respondent?s pleading on the traditional history of his vendor. The Respondent had pleaded in paragraphs 16, 17, 18 and 19 of the Statement of Defence as follows:
16. The Defendant avers that the land in issue formed part of a larger expense of land which from time immemorial was first settled upon by the progenitor of the Defendant?s Predecessor-in-title, whose name was NUREN, who exercised all rights of ownership on same unhindered and unchallenged. Among Nuren?s children were (1) Okunuga; (2) Oguntade, and (3) Ogunsanya Jelenke. Nuren migrated from Ile-Ife and settled on the entire expanse of land which he named BASONRIN, meaning; ?this place is good for me.? He brought along with him an idol called BAALA, the shrine of which is located around Badore Market, along Oke Rala Road beside Zion Estate, Sagamu.
17. Upon the demise of Nuren, ownership of the Basonrin land fell on his children, with Jelenke holding more than 80 acres of the land on which he planted economic trees such as Kolanuts, Coconut

and Bitter Cola.
18. The Defendant avers that Jelenke family and their ancestors had before the sale to the Defendant farmed continually on the land in issue, among others for more than 70 years without interruption by anybody.
19. The Defendant avers that Pa Ogunsanya Jelenke begat (1) Ogunyinka, (2) Soyebo, (3) Adebayo, (4) Ogunbanwo, and (5) Adeniji. Olatunji Soyebo begat Oyinda Soyeba Olatunji, Oluwadare Soyebo Olatunji, Sunday Soyebo Olatunji and Oluwakemi Soyebo Olatunji among others; Ogunyinka Jelenke begat Michael Jelenke and Oladega Jelenke among others.
?
The above pleading show clearly the Respondent?s Vendor?s traditional history starting from one Nuren who migrated from Ile-Ife. It is pleaded that the said Nuren had three children, among whom was Ogunsanya Jelenke, the progenitor of the Respondent?s vendor. The Respondent did not plead how Ogunsanya Jelenke through who his Vendors Claim title came to have exclusive ownership of the land founded by Nuren. The traditional history of the Respondent is completely silent about the descendants of the other children of Nuren, namely; Okunuga and Oguntade. There is no iota

of evidence whether the land founded by Nuren was partitioned between his children. From the pleadings and evidence led by the Respondents, it is my view that, the learned trial judge was right when he found no credibility on the traditional history and thus root of title of the Respondent. Incidentally, there is no appeal against that finding of the trial Court. It is trite law, that any finding of a trial Court which has not been appealed against, remains established as the truth.
?
Having found the traditional history of the Respondent as having crumbled, the learned trial Judge proceeded to rely on paragraph 22(i) and (ii) of the Statement of Defence, to hold at 152 of the record of appeal as follows:
?The Claimant did not respond to these averments in their Reply to Statement of Defence filed on 14/2/2013. The Defendant had stated that the farmland in dispute is not at Agbowa yet the evidence given relating to the founder of the land was that his final place of settlement after he left Ile-Ife was at Agbowa. In both Exhibits ?A? and ?C? which are the alleged Survey Plans of the Claimant?s family land, the title

of the Plan is ?Liworu family land along Ewu-Eleku/Okerale Road, Simawa via Sagamu. The Defendant had stated as produced above that the two locations are different.
The question to ask is ? whether the Claimant in his Statement of Claim was able to prove conclusively that their progenitor first settled on the land in dispute which is situate at Simawa. In paragraphs 4 and 5 of the Amended Statement of Claim and paragraph 2 of the deposition of the witness, the Claimant failed to trace Pa Liworu?s movement from Ile-Ife where he migrated from to Simawa as the Claimant only traced their progenitor?s movement from Ile-Ife to Agbowa. This leads to inconclusiveness of the history of the land in dispute put forward by the Claimant.?
?
In an effort to resolve this issue, I have carefully studied the pleadings of the parties. It is obvious that the learned trial Judge made the above finding consequent upon the Appellant?s pleading in paragraph 5 of the First Amended Statement of Claim. Therein, the Appellant pleaded as follows:
?15. The Claimant avers that Liworu, a Prince of Ile-Ife, migrated from Ile-Ife passing

through Ijebu-Ode, Okun-Owa, Agege, Badore and Agbete before finally settling down at AGBOWA MAKUN SAGAMU.?

The learned trial Judge then considered the response of the Respondent in paragraph 22(i) of the Statement of Defence wherein the Respondent pleaded as follows:
?22. The Defendant avers that the Claimant and his family have no land at all anywhere close to the Defendant?s Basonrin farmland at Simawa Sagamu, Ogun State because:
(i) Contrary to paragraph 5 of the Statement of Claim, the farmland in issue is not in Agbowa; Agbowa is situated in the heart/middle of Sagamu while the Defendant?s land is on the outskirts of Sagamu (coming from Lagos State).?

It is on the above pleadings of the Appellant and the response of the Respondent, that the learned trial Judge held that the traditional history led by the Appellant is inconclusive. The finding of the learned trial Judge, obviously, is anchored on the phrase, ?before finally settling down at AGBOWA MAKUN SAGAMU?. The learned trial Judge then interpreted that phrase to mean that the traditional history as led by the Appellant did not

extend to any settlement in Simawa. This finding of the trial Court has to do, in my view, with the issue of the location of the land in dispute. That cannot be resolved without touching on the issue of identity of the land in dispute. Identity of land in dispute has to do with the size, features, location of the land in dispute. Clearly, in an action for declaration of title to land, the first duty of the Plaintiff is to lead clear, cogent and credible evidence of the land in dispute. He does that by leading evidence on the size, location and features of the land in dispute. See Oke v. Sotunde (2019) 4 NWLR (pt.1661) 119; Manu & Anor v. Ahmadu & Ors (2015) LPELR ? 25635 (CA) and Archibong & Ors v. Ita & Ors (2004) 2 NWLR (pt.858) 590. The Plaintiff can do that by any of the two methods listed below:
(a) by giving oral evidence or description of the land sufficient enough as would enable a Surveyor armed with that description to make a Survey Plan of the land; or
(b) filing a detailed and accurate Survey Plan showing the various features, location, size and boundaries of the land claimed.
Any of the above methods of

identifying the land in dispute would be sufficient. See Awote v. Owodunni (No.2) (1987) 2 NWLR (pt.57) 367; Aiyeola v. Pedro (2014) 13 NWLR (pt.1424) 409; Archibong & Ors v. Ita & Ors (supra) and Addah v. Ubandawaki (2015) LPELR- 24266 (SC). However, the identity of land in dispute can only arise where same has been raised by the defence in the Statement of Defence. Thus, where no issue has been raised on the identity of the land in dispute, the fact that the parties refer to the land with different names will not be relevant. Furthermore, where the parties have by the evidence led, demonstrated that they are ad idem on the identity of the land, identity of the land will not be an issue at the trial. See Adugbo v. Ibe (2018) LPELR ? 46138 (CA); Okonkwo v. Okonkwo (2010) 14 NWLR (pt.1213) 228 and Anagbado v. Faruk (2016) LPELR ? 41634 (CA) Okonkwo v. Okonkwo (2010)14 NWLR (pt.1213) 228 and Anagbado v. Faruk (2018) LPELR ? 44909 (SC).
?
In the instant case, the learned trial Judge considered the pleadings and evidence led by the Plaintiff on the identity of the land in dispute to find at page 146 of the Record of Appeal as

follows:
?In the instant case, the Claimant in paragraph 4 of his Amended Statement of Claim described the land in dispute. The Defendant though denied that paragraph in his defence, he subsequently admitted knowledge of the land in dispute.?

The learned trial Judge then concluded at page 147 of the Record of Appeal with the following words:
?The Claimant in the instant case tendered a Survey Plan depicting the land in dispute Exhibit ?C? and also gave a vivid description of the land in his Statement of Claim. For this reason, I hold that both parties are aware of the land in dispute hence the identity of the land in dispute is not in issue.?

Though the learned trial Judge found that the land in dispute is known to both parties, however held that the traditional history led by the Appellant was inconclusive as it did not link with the land claimed by the Appellant.

?I agree with learned counsel for the Appellant that a document including a Statement of Claim or defence must be given a holistic reading. To that end, the individual paragraphs in the pleadings should not be read or construed in

isolation but each paragraph must be construed in relation to other paragraphs on the issue under consideration. See Titiloye v. Olupo (1991) 7 NWLR (pt.205) 519; Buhari v. Obasanjo (2005) 7 S.C. (pt.1) and Okoye & 6 Ors v. Nwankwo (2014) 6 ? 7 S.C. Thus, in Buhari v. INEC & Ors (2008) LPELR ? 814 (SC), the Supreme Court held as follows:
?In considering whether an averment in a paragraph is admitted, the Court must consider the totality of the paragraphs and not words in isolation or in quarantine. This is the only way to procure the intention of the party.?

In the instant case, it is apparent that the learned trial Judge merely relied on the phrase ?before finally settling down at AGBOWA MAKUN SAGAMU? in reaching the decision that the traditional history of the Appellant in relation to the land in dispute is inconclusive. A combined reading of paragraphs 3, 4, 12, 13 and 14 of the First Amended Statement of Claim would reveal clearly that the learned trial Judge gave a narrow construction to the traditional history of the land in dispute. Having pleaded the identity of the land in dispute, the Appellant

tendered Exhibits ?A?, ?B? and ?C? which are Survey Plans of the land in dispute. Exhibit ?A? show clearly that the land in dispute is situate along Ewu-Eleku/Okerala Road, Simawa via Sagamu. The Plan is drawn in respect of land of the Appellant?s ?Liworu Family?. Exhibit ?B? though tendered by the Appellant is the Plan drawn by the Respondent and it describes the land as being off Simawa/Sagamu Road, Basonrin Village ? Sagamu and same was admitted without objection. A cursory look at Exhibits ?A? and ?B? would reveal the similarity between the two Plans. The Appellant also tendered a Composite Plan of the land in dispute showing the land said to have been trespassed upon by the Respondent and which is now in dispute. That Plan was also admitted without objection.
?
It should be noted that, having pleaded and tendered the Survey Plans of the land in dispute the Appellant had discharged the onus on him to prove the identity of the land in dispute. The learned trial Judge erred when he took a narrow view of the traditional history led by the Appellant

to find that such traditional history was inconclusive. The other reason given by the learned trial Judge relating to the issue of Ruling family is irrelevant to the determination of the traditional history of the Appellant. There is nothing on the record to show that ownership of land in Simawa is tied to the issue of Ruling family in a Chieftaincy matter. On that note, it is my view, which I hold that the learned trial Judge erred in holding that the traditional history of the Appellant is inconclusive. I therefore hold that the evidence on record disclose that the Appellant successfully proved that he is entitled to declaration of title to the land in dispute as against the Respondent.
?
Now, it is the law, that in a claim of damages for trespass and injunction, judgment will be given in favour of he who is able to establish a better title. This is because though trespass is a claim based on possession, the law ascribes possession to the party who is able to establish a better title. See Alibaloye v. Akogun & Ors(2015) LPELR ? 25207 (CA); Bankole v. Dada (2003) 11 NWLR (pt.830) 174 at 228 ? 229 and Owhonda v. Ekpechi (2003) 17 NWLR

(pt.849) 326. In that respect, the Appellant having proved a better title against the Respondent, he is entitled to damages for trespass and injunction to safeguard further trespass onto the land in dispute.

In the instant case, the Appellant pleaded and led evidence that the Respondent entered the land in dispute. Incidentally, the Respondent did not deny the fact of entry onto the land in dispute but gave vivid account of such entry. The fact of trespass has therefore been undoubtedly proved. However, the Appellant is only entitled to general damages which in a claim of damages for trespass is granted per se, i.e without proof of such damage. The claim of special damages was not proved by the evidence.
?
On the whole therefore, I am of the view that this appeal has merit and is accordingly allowed. The judgment of the Court below, delivered on the 12th day of May, 2016 in Suit No: HCS/63/2012 is hereby set aside. Consequently, it is hereby ordered as follows:
1. That the Plaintiff/Appellant?s LIWORU FAMILY are the rightful persons entitled under Yoruba Native Law and Custom to the grant of Statutory right of Occupancy over the parcel of

land verged ?Black? in Composite Plan NO: LSAT/OG73 (Exhibit ?C?) dated the 2nd April, 2012 consisting of 8.685 hectares or 21.460 acres.
2. One Million (N1m) general damages is awarded for trespass committed by the Defendant/Respondent on the parcel of land described in paragraph one(1) above.
3. AN ORDER of PERPETUAL INJUNCTION is granted restraining the Defendant/Respondent, its agents, servants or privies from committing further acts of trespass on the said land.
4. Cost of One Hundred Thousand Naira (N100,000.00) is awarded as the cost of this appeal.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother HARUNA SIMON TSAMMANI, JCA, just delivered. I agree with and adopt his Lordship’s reasoning and conclusion in this appeal.

I have also perused the records of appeal and the briefs of argument filed and exchanged by the parties, my conclusion is that the appeal is meritorious and it is also allowed by me.

I abide by the consequential orders made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have read

before now the draft of the lead judgment just delivered by my learned brother Haruna Simon Tsammani, JCA. I agree that this appeal has merit and should be allowed.

The facts of the case and the evidence adduced by parties before the lower Court have been fully set out in the lead judgment. This appeal has been allowed on the ground that the trial judge failed to properly evaluate the evidence before him in coming to a conclusion of dismissal of the Appellants claim. The law is settled that when a Court of first instance fails to properly evaluate the evidence before it, an appellate Court is in a position as the Court of first instance to reappraise the evidence on record and make appropriate findings thereon. See OYEKANMI VS. NEPA (2000) 15 NWLR (PT. 690) 414; DADA & ORS. VS. BANKOLE & ORS. (2008) 5 NWLR (PT. 1079) 26; SHA (JNR) V. KWAN & ORS. (2000) 8 NWLR (PT. 670) 685: ANYANWU & ORS. VS. UZOWUAKA & ORS. (2009) LPELR 515 AT 17 PARAGRAPHS E ? G.
In EBBA & ORS. VS. OGODO & ORS (2000) LPELR 983 AT 66 PARAGRAPHS C ? F, the Supreme Court per Ejuwunmi JSC as follows:
“Though, it is settled law that an appellate Court would not easily interfere with the judgment of the

Court below, yet where the judgment of the Court below was reached either upon erroneous interference drawn from finding of facts or that its application of the law to properly found facts is perverse and/or erroneous, then the appellate Court has a duty to intervene to correct the injustice so caused. See FATOYINBO VS. WILLIAMS (1956) 1 ESC 87: (1956) SCNLR 274: SURAKATU J. AMJDA vs. OSHOBOJA (1984) 7 SC 68: FINNIH VS. IMADE(1992) 1 NWLR (PT. 219) 511.”
My learned brother found in the lead judgment that the lower Court did not do a proper evaluation of the facts and evidence placed before it by the Appellant in proof of his case. This Court is therefore in a proper position to embark on a re-evaluation of the evidence as done in the lead judgment.

It is for the above and fuller reasons given in the lead judgment that I also allow this appeal. I abide by the orders made in the lead judgment including that made as to cost.

Appearances:

Akinsumbo S. Akande, Esq. with him, Ibrahim A. Kareem-Ojo, Esq.For Appellant(s)

Respondent is absentFor Respondent(s)

Appearances

Akinsumbo S. Akande, Esq. with him, Ibrahim A. Kareem-Ojo, Esq.For Appellant

AND

Respondent is absentFor Respondent