ALHAJI SAIBU GBADAMOSI V. ABIODUN TOLANI (2010)

ALHAJI SAIBU GBADAMOSI V. ABIODUN TOLANI

(2010)LCN/4025(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of November, 2010

CA/I/209/2007

RATIO

WHETHER THE TITLE OF THE PARTIES TO THE LAND IN DISPUTE IS AUTOMATICALLY PUT IN ISSUE, WHERE A CLAIM FOR TRESPASS IS COUPLED WITH A CLAIM FOR AN INJUNCTION

It is common ground that where a claim for trespass is coupled with a claim for an injunction as in the instant case, the title of the parties to the land in dispute is automatically put in issue. PER MODUPE FASANMI, J.C.A

WHETHER THE PLAINTIFF HAS A DUTY TO PROVE HIS TITLE TO A DEFINED AREA TO WHICH THE DECLARATION CAN BE ATTACHED WITH CERTAINTY WHERE THERE IS A RIVAL CLAIM BY THE DEFENDANT

It is the duty of the Plaintiff/Appellant where there is a rival claim by the Respondent to prove his title to a defined area to which the declaration can be attached with certainty. PER MODUPE FASANMI, J.C.A

WHETHER A PLAINTIFF NEED NOT PROVE ALL THE WAYS OF PROVING TITLE TO LAND BEFORE HE CAN ESTABLISH HIS TITLE TO LAND; WAYS BY WHICH OWNERSHIP OF TITLE TO LAND CAN BE PROVED

It is trite that in order to establish title to land any proof of one of the five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need the support of another one not directly pleaded as the root of title. See IDUNDUN V. OKUMAGBA (1976) 9-10 SC at 227 and ONWUGBUFOR V. OKOYE (1996) 1 S.C.N.J page 1 at 20 or (1996) 1 N.W.L.R Part 424 at 252. The five ways of proving ownership of title to land were settled by the Supreme Court in the celebrated case of IDUNDUN V. OKUMAGBA (2002) 20 W.R.N at 127. They are: (1) Traditional evidence. See Section 45 of the Evidence Act, ADEDIBU V. ADEWO (1951) 13 W.A.C.A PAGE 191 AT 192 (2) By production of documents of title Section 130 of the Evidence Act and JOHNSON V. LAWANSON (1971) 1 ALL N.L.R AT 56 (3) Acts of person claiming the land such as selling, leasing or renting out all or parts of the land or farming on a portion of it are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the inference that the person is the true owner. See EKPO V. ITA (1932) 11 N.L.R at 58. (4) Acts of long possession and enjoyment of the land may also be prima evidence of ownership of the particular piece of land with reference to which such acts are done. See ONYEKA ONWU V. EKWUBIRI (1966) 1 ALL N.L.R AT 32; OYEYIOLA V. ADEOTI (1973) N.W.L.R 10 AND ADEGBOLA VS. OBALAJA (1978) 2 L.R.N. AT 164 and (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Section 46 of the Evidence Act, IDUNDUN & ORS V. OKUMAGBA (SUPRA) ATANDA V. AJANI (1989) 3 N.W.L.R Part 111 at 511 and ANYANWU V. MBEM (1992) 5 N.W.L.R Part 242 at 381. PER MODUPE FASANMI, J.C.A

WHETHER ADDRESS BY COUNSEL CAN BE A SUBSTITUTE FOR PLEADINGS NOR EVIDENCE

It is also the law that address by counsel as in the reply brief of the Appellant is not a substitute for pleadings nor evidence, see BUHARI V. OBASANJO (2005) ALL F.W.L.R Part 258 page 1604 at 173 para E. PER MODUPE FASANMI, J.C.A

WHETHER WHERE THE EVIDENCE IS UNCHALLENGED AND UNCONTRADICTED, THE TRIAL COURT STILL HAS A DULY TO EVALUATE IT AND BE SATISFIED THAT IT IS CREDIBLE AND SUFFICIENT TO SUSTAIN THE CLAIM

It is the law that even where the evidence is unchallenged and uncontradicted, the trial court has a duly to evaluate it and be satisfied that it is credible and sufficient to sustain the claim See GUNZEE NIG LTD. V. N.E.R.D.C. (2005) ALL F.W.L.R. Part 274 page 235 at 248-249 paras H-A. PER MODUPE FASANMI, J.C.A

ON WHOM LIES THE ONUS OF PROOF IN A CASE OF DECLARATION OF TITLE TO LAND

The onus is on the plaintiff in a case of declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendant’s case See SHITTU V. FASHAWE (2005) 14 NWLR Part 946 at 671; ADESANYA VS. ADEROUNMU (2000) 13 W.R.N. page 104 at 115 lines 10-35 and BAMIKOLE v. OLADELE (2010) 34 W.R.N page 15 at 29 lines 15-25. PER MODUPE FASANMI, J.C.A

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

ALHAJI SAIBU GBADAMOSI Appellant(s)

AND

ABIODUN TOLANI Respondent(s)

MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Oyo State High Court of Justice, Ibadan Division delivered on the 24th of May, 2005 in which the trial Court dismissed all the claims of the Appellant.
Appellant sued the Respondent as endorsed on the amended statement of claim at the lower Court claiming as follows:-
(i) A declaration of a Statutory Right of Occupancy to all that parcel of land situate, lying and being at Opposite Old Niger West Company Ltd, Old Lagos Road, Challenge, Ibadan.
(ii) N100.00 damages against the Defendant/Respondent for trespass committed by the Defendants embarking on the construction of buildings on the land in dispute
(iii) An order of perpetual injunction restraining the Defendant, his agents, privies and any other person or persons who may claim through the Defendant
(iv) A declaration by the Court that the Defendants are trespassers on the aforementioned piece or parcel of land by embarking on the building construction on the said land without the consent and authority of the Plaintiff and the members of his family.
Appellant was the Plaintiff at the lower court while the Respondent was the Defendant. Appellant was dissatisfied with the judgment and filed a notice of appeal containing three grounds of appeal. By a motion filed on the 10/10/07. Appellant sought leave of this count to file six additional grounds of appeal which was granted on the 11th of February, 2008.
The brief facts of the case as presented from the record of proceedings are as follows: Kure Awojobi of Isale Osi, Ibadan; Arowolaje Ashiru Onipako, Olorisagbonna and Arowolaje jointly fought Gbanamu war, against the Egbas and Ijebus over 150 years ago. After the aforesaid war, was over, the said Kure Awojobi with the remaining four families stated above shared the land jointly acquired during the war amongst themselves on which individual families thereafter settled on their own portion.
The area given to Kure Awojobi started from Odo-Idi-Esu now Felele roundabout left and right till Agunbelewo now Adelabu market, Ibadan which is more than 1,000 acres of land. The said Kure Awojobi exercised various acts of ownership on the said land. After his death, his family exercised maximum acts of ownership and the said piece of land devolved on his family including the Appellant who is the current Mogaji/Headship of Kure Awojobi family and he is the great grandson of the Kure Awojobi. The Respondent was found on the land in dispute committing various acts of trespass hence Appellant sued the Respondent.
The Respondent on the other hand testified that he bought the land in 2002. It was a vacant land and there were no economic trees or crops on the land and that he met a small fence on the land. He stated that the Appellant had instituted an action in the High Court in respect of the land opposite Niger -West which formed part of the land in dispute. Appellant lost that action, and the court confirmed the title of the vendor of the Respondent’s predecessor in title. This fact was not disputed by the Appellant. Appellant being dissatisfied with the judgment appealed to this Court.
After a careful consideration of the evidence led, exhibits tendered and the submissions of learned Counsel to the parties, the learned trial Judge dismissed all the claims of the Appellant.
In compliance with the rules of this Court, Appellant filed his brief of argument on the 12th of February 2008 and the Appellants reply to the Respondent’s brief of argument on the 24th of June 2008. The Respondent filed his brief of argument on the 16th of June 2008 but deemed filed on 17th June 2008. At the hearing of the appeal, Learned Counsel for the Appellant adopted and relied on his respective brief of argument. There is proof of service on the Respondent for the hearing of the appeal on 28th September, 2010. Respondent’s Counsel was absent in Court and no reason was given for his absence. The Respondent’s brief is therefore deemed argued pursuant to order 17 rules 9(4) of the court of Appeal Rules 2007.
Appellant formulated two issues for determination. They are:
(1) Whether having regard to the pleadings and the evidence adduced before the trial Court, the learned trial judge was right to have dismissed all the Appellant’s claims in its entirety
(2) Whether from the pleadings and evidence based on them, the learned trial Judge evaluated the evidence and drew proper inferences and conclusions in dismissing all the claims of the Appellant.
The Respondent also formulated two issues for determination as follows:
(1) Whether the Appellant who was the plaintiff at the lower Court discharged the onus of proof on him.
(2) Whether the Appellant can rely on the weakness of the Respondent’s case where same does not support the Appellant’s case.
It is my candid opinion that the issues raised by the parties are similar in that they raise the same questions though couched differently. I intend to be guided by issue 2 formulated by the Appellant and issue one formulated by the Respondent. Issue one formulated by the Appellant is subsumed in his issue two while issue two of the Respondent is subsumed in his issue one. I shall consider issue one of the Respondent first and then issue two of the Appellant. The issues will now be rearranged as follows:
(1) Whether the Appellant who was the Plaintiff at the lower Court discharged the onus of proof on him
(2) Whether from the pleadings and evidence based on them, the learned trial Judge evaluated the evidence and drew proper inferences and conclusion in dismissing all the claims of the Appellant.
Issue One
Whether the Appellant who was the Plaintiff at the lower Court discharged the onus of proof on him at the lower Court.
Learned Counsel for the Appellant submitted that the burden of proof lies on the Appellant and he has discharged the burden in this case. He referred to Sections 135 and 136 of the Evidence Act Cap 112 of 1990. Learned Counsel cited the case of OKORIE ECHI & ORS V. JOSEPH NNAMANI & ORS (2000) 5 S.C.N.J at 155. He submitted that there are five different/ways by which ownership of land may be proved by a claimant. These are stated in the cases of:
(1) D. O. IDUNDUN V. DANIEL OKUMAGBA (1976) 9-10 S.C page 227 at 246 or (2002) 20 W.R N 1-193 page 127 at 129-131
(2) AYOOLA V. ODOFIN (1984) 2 S.C at 120
(3) AGU V. IKEWIBE (1991) 3 N.W.L.R part 180 at 385 and
(4) NKADO V. OBANO (1997) 5 S.C.N.J page 33 at 47
He submitted that the Respondent claimed ownership of the land in dispute by the production of documents title vide exhibits B, C, D, E, F and G According to learned Counsel, the evidence of the Appellant as reflected on pages 35-36 and 61-62 of the record of proceedings confirmed that the Appellant’s family got to the land by conquest and later settled on the portion shared to Kure Awojobi after the said Gbanamu war. He stated that the Appellant traced his family lineage from the original settler on the land in dispute Kure Awojobi the ancestor of the Appellant to himself as stated in paragraphs 5, 6 and 7 of the amended statement of claim as reflected on pages 24-27 of the record of appeal. He argued further that the Appellant did not leave unexplained gap in his evidence contrary to the judgment of the lower court. He relied on TEMILE V. AWANI (2001) 6 S.C.N.J page 190 at 194 ratio 9 and LION BUILDINGS LTD V. SHODIPE (1976) 12 S.C at 135.
He went further to state that in exercising acts of ownership they sold plots of land/ acres of land out of their family land including the plots surrounding the land in dispute. Among the people who purchased the land from Kure Awojobi family are Chief Ajeye who built a Storey Building and his son is the Plaintiff’s 3rd witness as reflected on page 60 of the record of appeal. Appellant submitted that the learned trial Judge did not consider the positive and numerous acts of ownership of the Appellant’s ancestor planting Cocoa, Coffee, Kolanut and Palm trees on their family land, part of it now in dispute. The proof of any one of the five different ways of establishing title to land is the minimum the law requires. Learned Counsel referred to NWOSU VS. UDEALA (1990) 1 N.W.L.R Part 125 at 188. The evidence of the appellant and his witnesses adequately established the legal ownership of the Appellant on the land in dispute through traditional evidence e.t.c. aforesaid. The Appellant ought to have succeeded in his claim for declaration, trespass and injunction. Learned Counsel referred to KARIMU AYINLA V. SIFAWU SIJUWOLA (1984) 5 S.C at page 444. Learned Counsel for the Appellant argued further that the production of instruments of title to land by the Respondent cannot automatically prove that the land therein purportedly conveyed, granted or transferred becomes the property of the Respondent, The existences of Exhibits D & E respectively are therefore merely a prima facie evidence of title to land they cover and no more. Exhibits D, E, F and G described the land in dispute as situate, lying and being at old Lagos road, Molete, Ibadan and not Challenge, Ibadan where the land in dispute is located. Learned Counsel for the Appellant submitted that Appellant’s family has no family land at Molete. Learned Counsel for the Appellant urged the Court to hold that exhibits B, D, E, F and G do not relate to the land in dispute and urged the Court to resolve the issue in his favour.
In response learned Counsel for the Respondent submitted that the Appellant at the trial Court traced their root of title to traditional history and evidence. Appellant did not lead evidence to narrate the genealogical tree from his ancestor down the line to himself in sequence of ownership or possession of the land. He did not establish any act of ownership over the land in dispute at the trial of the suit at the lower court. He submitted that the contention of the Appellant that his family planted palm tree, Cocoa, Cassava, Banana, Yams on the land in dispute was rebutted by the Respondent’s evidence at page 76 of the record of appeal to the effect that he did not meet any crop on the land when he purchased the land. The assertion of the Appellant that his family sold an adjoining land in dispute to the father of P.W3 was not proved before the lower Court. He did not establish the vital element of a sale of land under customary law as between the Appellant’s family and the P.W.3 father. He referred to the case of OLOWOAKE V. SALAWU, N.W.L.R Part 677 page 127 at 146. He argued further that the claim of the Appellant to ownership of an adjoining land was equally, not established at the lower Court. Learned Counsel referred to exhibit C which is a judgment of the High Court of Oyo State in respect of the land which forms part of the land in dispute at page 65 of the record of appeal through D.W2.
Learned Counsel urged the Court to hold that the Appellant did not prove any of the five ways or methods of establishing ownership of land as laid down in the case of IDUNDUN VS. OKUMAGBA (Supra) Learned Counsel urged the Court to resolve issue one against the Appellant.
I have carefully considered the amended statement of claim, the supporting evidence and more importantly the authorities cited in the briefs of argument on behalf of the Appellant and the Respondent, and the Appellant’s reply to the Respondent’s brief and the learned trial Judge’s considered judgment. It is common ground that where a claim for trespass is coupled with a claim for an injunction as in the instant case, the title of the parties to the land in dispute is automatically put in issue.

It is the duty of the Plaintiff/Appellant where there is a rival claim by the Respondent to prove his title to a defined area to which the declaration can be attached with certainty.

It is trite that in order to establish title to land any proof of one of the five ways is sufficient as each of them stands or falls on its merit. One of the ways pleaded does not need the support of another one not directly pleaded as the root of title. See IDUNDUN V. OKUMAGBA (1976) 9-10 SC at 227 and ONWUGBUFOR V. OKOYE (1996) 1 S.C.N.J page 1 at 20 or (1996) 1 N.W.L.R Part 424 at 252. The five ways of proving ownership of title to land were settled by the Supreme Court in the celebrated case of IDUNDUN V. OKUMAGBA (2002) 20 W.R.N at 127. They are:
(1) Traditional evidence. See Section 45 of the Evidence Act, ADEDIBU V. ADEWO (1951) 13 W.A.C.A PAGE 191 AT 192
(2) By production of documents of title Section 130 of the Evidence Act and JOHNSON V. LAWANSON (1971) 1 ALL N.L.R AT 56
(3) Acts of person claiming the land such as selling, leasing or renting out all or parts of the land or farming on a portion of it are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive to warrant the inference that the person is the true owner. See EKPO V. ITA (1932) 11 N.L.R at 58.
(4) Acts of long possession and enjoyment of the land may also be prima evidence of ownership of the particular piece of land with reference to which such acts are done. See ONYEKA ONWU V. EKWUBIRI (1966) 1 ALL N.L.R AT 32; OYEYIOLA V. ADEOTI (1973) N.W.L.R 10 AND ADEGBOLA VS. OBALAJA (1978) 2 L.R.N. AT 164 and
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See Section 46 of the Evidence Act, IDUNDUN & ORS V. OKUMAGBA (SUPRA) ATANDA V. AJANI (1989) 3 N.W.L.R Part 111 at 511 and ANYANWU V. MBEM (1992) 5 N.W.L.R Part 242 at 381.

In the instant case, Appellant relied mainly on traditional history. Appellant in his pleadings and evidence at the lower court stated how his ancestor Kure Awojobi settled on a vast portion of land which includes the land in dispute after the Gbanamu war against the Egbas and Ijebus over 150 years ago. Appellant stated the names of the descendants of the Kure Awojobi who had been Mogaji’s over the land. He did not state the period each of the Mogaji’s occupied the land in his pleadings and evidence before the Court apart from testifying that he became the Mogaji in 1975. He did not give sufficient particulars of each occupier and what they did on the land. Want of such evidence in the case of the Appellant’s assertion created a mysterious gap which is fatal to the Appellant’ case. The particulars of the intervening owners through whom he claims and what they did on the rand ought to have been stated. See the cases of ALLI v. ALESHINLOYE (2000) 4 S.C Part 1 page 111 at 125; FAYEMI V. AWE (2009) 13 N.W.L.R. Part 1164 page 315 at 340. Where a claim for declaration of title to land is based on traditional history, claimant needs to adduce cogent and conclusive evidence of tradition. See DIKE V. OKOLOEDO (1999) 10 N.W.L.R. Part 623 at 359 and SANUSI V. OBAFUNWA (2006) 28 W.R.N. Page 136 at 167-168 lines 45-20.
The learned trial Judge rightly held that he was not satisfied that the nature of the traditional evidence adduced by the plaintiffs warrants a declaration of title in their favour.
On the acts of ownership and long possession, Appellant gave evidence that his family Kure Awojobi had been in long possession of the land and had cultivated economic trees like Kolanut, cocoa and crops like cassava and Maize since the rand was founded by his ancestor. At page 35 of the record of proceedings, Appellant testified that the land in dispute is at challenge opposite Niger west, Ibadan. His witness p.W2 who was the Appellant’s surveyor tendered exhibit A the dispute survey plan. Under cross examination, he stated that he did not meet cocoa, Kolanut trees and crops on the rand. It was vacant. See page 59 of the record.
Respondent stated that he bought the rand from D.W1 in year 2002 and relied on production of title documents. He placed reliance on exhibits.B which is the letter or authority dated 25/1/89 to sell 4 plots of land at Challenge opposite Niger west. D.W1 sold the land in dispute to the Defendant i.e Respondent in year 2002. Letter was tendered by D.W1. Exhibit C – the certified True Copy of a judgment dated 20th Jun. 2003 between the Appellant and Mr. Okege & 2 others was tendered by the Principal Registrar High Court, Iyaganku, Ibadan.
Exhibits D & E – are the Certified Copy of deeds of assignment in respect of the land in dispute. The 1st deed of assignment is marked exhibit D. The assignor is one Chief Timothy Odutayo Kuti while the assignee is Bolatito Abeke Kuti
In the second deed of assignment marked exhibit E the assignor is Mrs. Bolatito Abeke Kuti while the assignee is Taofeek Tolani, the Respondent.
Exhibit F – is a Survey Plan for Timothy Odutayo Kuti dated 7/5/81 in respect of land at Old Lagos Road, Challenge Ibadan comprising of two parcels of land marked ‘A’ and ‘B’
Exhibit G – is the Survey Plan for Taofeek Tolani (the Respondent) at old Lagos road; Ibadan. Exhibit G is a portion of Exhibit F.
It is the Respondent’s case that the land in dispute was sold to him by D.W1 who showed him letter of authority to sell the land. The land in dispute is located at Ijebu-Ode Road opposite Niger West Ibadan, He testified that the land is vacant. There were no economic trees or crops on the land. He only met a small fence on the land.
The evidence of P.W2 for the Appellant supports the case of the Respondent. Appellant in his reply brief on the issue of whether the land in dispute was vacant or not replied that some of the crops had been destroyed by the Respondent on the land in dispute and that was why P.W2 did not meet any crop on the land. The Court observes that there was no pleading or evidence to the fact that the Respondent destroyed the crops on the land in dispute on the record. Therefore it goes to no issue and must be disregarded see IHEANACHIO v. CHIGERE (2004) ALL F.W.L.R Part 226 page 204 at 227 paras C-G per Uwaifo J.S.C. See also SUPO V. SUNMONU (2010) 27 W.R.N PAGE 28 AT 59-60 lines 40.

Learned Appellants Counsel submitted that the exhibits tendered by the Respondent are not relevant to the land in dispute. The Court considered the exhibits in the course of its judgment and the learned trial Judge at the lower Court had this to say:
“I have looked critically at the dispute plan Exhibit A tendered by the Plaintiffs and the Survey Plan of Mr. Kuti Exhibit F also the Respondent’s Survey Plan exhibit G and I have compared the plans. I have no doubt that the land in dispute is the same land that is reflected in the Survey Plans. They are basically of the same size and shape. The mere fact that one is said to be in Molete while one is said to be in Challenge does not remove the fact that it is the same land. Apart from this P.W1 admitted that the action he instituted in Court in 1991 and lost was in respect of the land opposite Niger West against the Defendants predecessor in title and others. Also the description of the land by the Plaintiffs Surveyor tallies exactly with the description given by the Defendant on oath and in his Survey Plan Exhibit G”
Let me also add that the differences in the evidence of the witnesses are no more than minor discrepancies which do not affect the substance of the evidence given by the witnesses. A contradiction to be fatal or raise doubt in the mind of the court must be substantial. Absence of minor differences gives picture of tutored or tailored evidence. Consequently they are not material and fatal to the Respondent’s case.
Appellant says his traditional history was unchallenged and uncontradicted.
It is the law that even where the evidence is unchallenged and uncontradicted, the trial court has a duly to evaluate it and be satisfied that it is credible and sufficient to sustain the claim See GUNZEE NIG LTD. V. N.E.R.D.C. (2005) ALL F.W.L.R. Part 274 page 235 at 248-249 paras H-A.

In the instant case, P.W3 testified that he lives near the land in dispute. His father bought the land from the Appellant’s family. He could neither state when the land was bought nor sufficiently identify the member of the Appellant’s family from whom his father bought the land.
These pieces of evidence have created unexplained gaps in the evidence of the Appellant as regards the acts of ownership and long possession.

It is trite that when the issue as to which of the two claimants has a better right to possession or occupation of a piece of land in dispute’ the law will ascribe such possession and/or occupation to the person who proves a better title. See AROMIRE V. AWOYENU (1972) 1 N.W.L.R PART 1 AT PAGE 101; FASORO V. BEYIOKU (1988) 2 N.W.L.R Part 76 at page 263 and OYENEYIN V. AKINKUGBE (2010) 41 N.S.C.Q.R at 416 particularly at 436 per Adekeye J.S.C. The learned trial Judge rightly held that the Appellant has not discharged the onus of proof on him for declaration of title in his favour at the rower court. Issue one is hereby resolved against the Appellant.

Issue 2
Whether from the pleadings and evidence based on them, the learned trial Judge evaluated the evidence and drew proper inferences conclusions in dismissing all the claims of the Appellant.
Learned counsel for the Appellant submitted that it is not enough for a trial judge to say that he believes a witness without a proper evaluation of the evidence upon which he based his belief. He argued that a proper appraisal of the Appellant’s evidence and his witnesses shows that their evidence flows smoothly and without being controverted or challenged or discredited under cross examination in ail material particulars and should therefore render them satisfactory, acceptable, reliable and strong enough to grant declaration to title, trespass and injunction which the Appellant is claiming. He submitted further that since there is no traditional evidence at variance or in conflict with that of the Appellant by the Respondent before the trial Court, the Court is left with no other option than to accept the Appellant’s uncontroverted traditional evidence. Learned counsel referred to the case of ONYIDA V. AJAMBA (1991) 4 N.W.L.R Part 184 at 203. He submitted that the learned trial court was in error in dismissing the Appellant’s claims in view of the better and uncontroverted traditional evidence. He referred to the case of EBBA V. OGODO (1984) 1 S.C.N.L.R at 372 and OGBE V. IDOWU (2004) 24 W.R.N. 1-176 page 152 ratio 17 at 160 where Adekeye J.C.A as he then was had this to say:
“It is the attitude of the Appellate Court to do evaluation of evidence as displayed in myriads of authorities on this issue adorning our law reports that evaluation of evidence is primarily the function of the trial court having regard to the fact that it is the trial court which had the opportunity of seeing and hearing the testimonies of witnesses and observing their demeanor. It is only where and when the trial court fails to evaluate such evidence properly or at all that Appellate Court can intervene and re-evaluate such evidence itself. Other-wise where the trial Court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an Appellate Court has no business interfering with its findings on such evidence.”
He submitted that the lower court has failed in its primary function of evaluation of evidence in this case and therefore call on the court of Appeal to re-evaluate the said evidence in favour of the Appellant.
Learned counsel for the Appellant submitted further that there are lots of material contradictions in the evidence of the Respondent with his witnesses together with the documents tendered which ought to have been resolved in favour of the Appellant by the lower court but failed to do so. He referred to the case IBEKENDU V. IKW (1993) 7 S.C.N.J. at page 50 particularly at page 52 ratio 8 & 9 Appellant urged the Court to resolve the issue in his favour.
Learned counsel for the Respondent submitted that a perusal of the evidence of that Appellant at the rower court shows that the basic ingredient of evidence, intervening acts of ownership of the land as to who occupied the land between one period and the other was not given. He submitted that Appellant was under the erroneous view that onus of proof of title to land could shift to the Respondent. He submitted that the Appellant cannot shift the burden of proof on the Respondent. He cited AREMU V. ADETORO (2007) 49 W.R.N. PAGES 10-11 lines 35-30 and UDUZE V. (2007) 50 W.R.N. page 71 at 120 lines 40-45. It is only when a Defendant or Respondent counter-claims that the onus of Proof shifts on him. He relied on TOGUN V. ISHOLA-OLUWA (2007) 46 W.R.N. page 160 at 183-185 lines 20-15. The onus therefore does not shift to/the Respondent since he did not counter claim. He argued further that the lower court evaluated the evidence or all the parties and came to a just conclusion. Respondent produced title documents at the rower court which were admitted as exhibits D and E. The authencity of these exhibits could not be challenged by the Appellant and same were relied on by the rower court. He submitted that despite the non burden of proof on the Respondent, exhibit C which is a judgment of the High court of Oyo state that adjudged the Respondent’s predecessor in title as the owner of the adjoining land was not denied by the Appellant. He referred to page 62 of the record of appeal lines 13-16 where the Appellant said:
“I instituted an action against one person in respect of one of the parcels of land opposite Niger West. I lost that case but we appealed against the Judgment. It is now in the Court of Appeal.”
He submitted that the lower Court rightly relied on the unchallenged and uncontradicted evidence of the Respondent at the trial. He placed reliance on the case of ISITOR V. FAKOREDE (2007) 27 W.R.N. PAGE 129 AT 149 LINES 15-25. Learned Counsel urged the Court to uphold the decision of the lower Court as it has properly evaluated the evidence of the parties. He urged the Court to resolve this issue against the Appellant and dismiss the appeal as lacking in merit.

Evaluation of evidence is primarily the function of the trial Court having regard to the fact that it is the trial Court which had the opportunity of seeing and hearing the testimonies of witnesses and observing their demeanor. See MAIKUDI V. MUSA (2004) ALL F.W.L.R. Part 230 page 1096 at 1109 paras E-F. The Court at page 113 para E of the judgment stated thus:
“The evaluation of evidence 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 also HASHIDU V. GEJE (2004) ALL F.W.L.R Part 228 page 662 at 700 paras F-H.
In the instant case, the learned trial Judge reviewed the evidence of witnesses to the parties, the exhibits tendered in a considered judgment on the record. He placed the evidence of the Appellant and that of the Respondent on either side of an imaginary scale of justice and found that the evidence of the Respondent is weightier and more credible than that of the Appellant.

At page 96 of the record, the learned trial Judge had this to say:
“Though the Plaintiffs pleaded the names of the descendants of Kure Awojobi and gave evidence stating the names of all those who had been Mogaji, they failed to state with certainty or give sufficient particulars of each occupier or intervening owner of the land and the period of occupation. The question is who took over the land, when and what did they do on the land. The evidence led by the Plaintiff does not contain all these ingredients.
I am therefore not satisfied that the nature of the traditional evidence adduced by the Plaintiffs warrants a declaration of title in their favour”
While considering the evidence of the Respondent, the trial Court had this to say:
“The Defendants on the other hand have established that the adjacent land belonged to the vendor of the Defendants predecessor in title. This is confirmed by the judgment of ABIMBOLA J. Exhibit D is the deed of assignment in which Dr. Timothy Odutayo Kuti is the assignor and Mrs. Bolatito Kuti is the assignee, while Exhibit ‘E’ also tendered by the Defendant is another deed of assignment in which Mrs. Bolatito Kuti is the assignor while the Defendant is the assignee.
Having placed the evidence of the Plaintiff and that of the Defendant on either side of an imaginary scale of justice, I found that the evidence of the Defendant is weightier and more credible than that of the Plaintiffs”

The findings of the trial Court are on course or apt and this Court can therefore not re-evaluate the evidence of the parties and interfere with the findings. An appellate Court will not interfere with the findings of a trial Court unless they are perverse. The facts found by the trial Court are reasonably justified or supported by credible evidence given in the case. See FEDERAL COMMISSIONER OF WORKS AND HOUSING VS. LABABEBI (1977) 11-12 S,C at 15; EZEAFULUKWE V. JOHN HOLT LTD (1996) 2 N.W.L.R Part 432 at 511 and SUPO V. SUNMONU (2010) 27 W.R.N page 28 at 54-55 lines 40-25 per Ogbuagu J.S.C. The evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanor of witnesses as they testify and thus the Court best suited to assess their credibility see MINI LODGE LTD. VS. CHIEF OLUKA OLAKA NGEI (2010) 41 N.S.C.Q.R page 1 at pages 20-21 per Tabai J.S.C.

Consequently the Appellants having failed to prove their title to the land in dispute the first leg of the claim was dismissed. The 2nd leg of the claim which is for damages for trespass, since the Appellants are not the owners of the land and not in possession, their claim for damages for trespass cannot succeed. In the same vein also their claim for injunction against the Respondent cannot succeed either. The 4th leg of the claim is a declaration that the Respondent is a trespasser. Having dismissed the Appellants claims on legs 1-3, the 4th leg cannot be sustained. The claims of the Appellants were accordingly dismissed by the trial court.
The learned trial Judge came to a just decision in his evaluation of all the claims. Issue 2 is hereby resolved against the Appellant.
Finally the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court delivered on the 24th of May, 2005 is hereby affirmed. The cost of N30,000.00 only is hereby awarded in favour of the Respondent.

STANLEY SHENKO ALAGOA, J.C.A: I read before now the judgment just delivered by my learned brother Fasanmi, J.C.A. and I also am of the view that the appeal lacks merit and should be dismissed. I dismiss same and affirm the judgment of the lower court delivered on the 24th May 2005. I also abide by the order on costs contained in the lead judgment.

SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, M. Fasanmi, J.C.A. just delivered.
I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment including order on Costs.

Appearances

S. A. Onifade appears with him O.T, Lawani (Miss.)For Appellant

AND

A. BababtundeFor Respondent