AWOSEYILA v. HAJAIG CONSTRUCTION NIG. LTD & ANOR (2020)

AWOSEYILA v. HAJAIG CONSTRUCTION NIG. LTD & ANOR

(2020)LCN/14077(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/EK/52/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1. HRH OBA ADEBAYO AWOSEYILA (THE ALAMO OF ILAMO, FOR HIMSELF AND THE ALAMO FAMILY OF ILAMO) APPELANT(S)

And

1. HAJAIG CONSTRUCTION (NIG.) LTD. 2. CHIEF ALABA OLANIPEKUN (FOR HIMSELF AND ON BEHALF OF ILARA FAMILY IKOLE EKITI) RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF TITLE TO LAND COMES TO QUESTION WHERE A PARTY SUES FOR TRESPASS AND INJUNCTION

It is settled and elementary that, where a party sues for damages for trespass and injunction, the issue of the title to the land automatically comes to the fore. The party suing, in other words is saying that his right is better than that of the party being sued, should be upheld and the other party be damnified for encroaching or disturbing his superior right in the land in question. See the cases of MOGAJI V. & ORS V. CADBURY NIG. LTD. 1985 LPELR-1889 SC and KPNUGLO V. KODADJA 1931 2 WACA 24. Consequently, it was the responsibility of the Court to ascertain the true owner of the land in dispute. PER WILLIAMS-DAWODU, J.C.A.

BALANCE OF PROOF IN CIVIL CASES

In civil cases, the law is settled and now elementary that, proof is on the preponderance of evidence or balance of probabilities. The party who asserts has the burden of proof which he must discharge with cogent and credible evidence for his case not to fail before it shifts to the opposing party. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. PER WILLIAMS-DAWODU, J.C.A.

WHETHER OR NOT A PARTY IS ALLOWED TO RELY ON THE WEAKNESS OF THE CASE OF THE OPPOSING PARTY

A party is not allowed to rely on the weakness of the case of the opposing party, but on the strength of his own case. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGHEH 2006 11 NWLR PT. 990 P. 65. Where declaration of title to land was involved as the instant appeal, the onus was on the Appellant to establish his claim by preponderance of evidence, credible and cogent. As the Claimant therefore, he had to satisfy the Court below that, upon the pleadings and evidence adduced, he was entitled to declaration of the title to the land and consequently the damages for trespass and injunction sought. See the cases of ADEWUYI V. ODUKWE 2005 ALL FWLR PT. 278 1100, IRAGUNIMA V. RSHPDA 2003 FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC and SOLOMON ECHANOMI V. MRS PHILOMENA OKOTIE & ORS 2011 LPELR-CA/B/247/2009. PER WILLIAMS-DAWODU, J.C.A.

THE PRIMARY FUNCTION OF THE TRIAL COURT

It is equally elementary principle of law that, the function of evaluation of evidence and ascription of probative value is essentially that of the trial Court which is its primary function. In other words, issues of fact are pre-eminently those of the Court of trial. The presumption is that, the decision of the trial Court is correct and must be disproved by the Appellant before an appellate Court can interfere. See the cases of DANIEL OGBAJE V. ABUJA INV. & PROPERTY DEV. CO. LTD. 2007 LPELR-CA/A/173/2005, NKEBISI V. THE STATE 2010 LPELR-SC 395/2002, WOLUCHEM V. GUDI 1981 5SC 291, ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, ABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR 1992 LPELR SC178/1990 and WILLIAMS V. JOHNSON 1937 2 WACA 253. The trial Court saw and heard the witnesses testify, believed one side and disbelieved the other. See further the cases of BALOGUN V. AKANJI 1988 1 NWLR 301 SC, KODILINYE V. MBANEFO ODU 1935 2 WACA 365 and FATOYINBO & ORS V. WILLIAMS alias SANNI & ORS 1956 1 FSC 87. Where the trial Court satisfactorily performs its duty, an appellate Court will not interfere. See the cases of WOLUCHEM V. GUDI supra, ENANG V. ADU supra and IGAGO V. THE STATE 1999 12 SCNJ 140. PER WILLIAMS-DAWODU, J.C.A.

WHETHE ROR NOT SURVEY PLAN IS NECESSARY WHERE THERE IS NO DIFFICULTY IN IDENTIFYING A LAND IN DISPUTE

Where there is no difficulty in identifying the land in dispute as herein, survey plan becomes unnecessary. See the cases of KYARI V. ALKALI & ORS 2001 LPELR-SC 224/1993, CHIEF SOKPUI II V. CHIEF TAY AGBAZO 1951 13 WACA 24, CHIEF DANIEL IBULUYA V. DIKIBO 1976 6 SC 97 and ATOLAGBE V. SHORUN 1985 1 NWLR PT. 2 360. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the Ekiti State High Court, delivered by Hon. Justice A. L. Ogunmoye on April 3rd 2017 wherein the Court dismissed both the claim and the counter-claim of the Appellant (Claimant at the Court below) and the Respondents (the Defendants at the Court below) respectively. See page 688 of the printed Record before this Court.

The brief gist that culminated into this appeal is as follows:

At the Court below, the Appellant sued the Respondent vide his writ of summons and statement of claim for the following reliefs:
a. Damages to the tune of N5,000, 000. 00 ( Five Million Naira; payable by the Defendant to the Plaintiff for the trespass committed on the Plaintiff’s land, including the rock thereon, known and identified as Ojuju Rock, and situated on Ifaki-Omuo Road, in Ilamo in Ikole Local Government Area of Ekiti State; and
b. An injunction restraining the Defendant, its successors, privies or assigns, through its servants or agents from further trespassing on the said piece of land and the rock situated thereon.

The Appellant’s claim before the Court below was that the Itajuju Rock and its surrounding in Ikole Local Government from time immemorial belonged to the Alamo family. That, his family has exercised right of ownership in respect of the Rock when they leased part thereof to Messrs Bartoletti Nig. Ltd. and Messrs Kopek Construction Ltd.

On the other hand, the case of the Respondents is that, the land in dispute upon which the rock is, differs from the one that the Appellant leased to Messrs Bartoletti Nig. Ltd and Messrs Kopek Construction Ltd. They leased their rock to the 1st Respondent and that, the land upon which the Appellant built his house was given to him by the 2nd Respondent’s family.

Dissatisfied with the decision of the Court in the main, on page 686 of the Record that, he failed to prove the traditional history he relied on, the Appellant, has approached this Court with his Notice of Appeal with four (4) grounds dated July 3rd 2017 and filed same day. An Additional Record of Appeal filed on May 14th 2019 was deemed as properly filed and served on June 24th 2019.

RELIEF BEING SOUGHT
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To grant the claim of the claimant before the lower Court.In compliance with the Rules of this Court, the parties filed and exchanged their briefs of argument. The Appellant’s which was settled by Ayodeji Makanjuola Esan Esq. dated May 2nd 2019 and filed May 3rd 2019, was deemed as properly filed and served on June 24th 2019. The Respondents’ brief dated and filed May 15th 2019 was settled by O. O. Fatimehin Esq. to which the Appellant on September 13th 2019 filed a Reply dated September 11th 2019 which was deemed as properly filed and served on September 19th 2019.
ISSUES SUBMITTED BY PARTIES FOR DETERMINATION
The Appellant submitted the following Issues:
i. Whether the claimant has satisfied the burden placed on him by the law in suing for acts of trespass by the defendants and injunction restraining the acts of the Defendant (Grounds 3 & 4)
ii. Whether the provisions of the (sic) Section 162 of the Evidence Act is applicable in respect of Exhibit 1 tendered by the trial Court (Ground 1).
iii. Whether the Court misdirected itself by relying on the Defendants’ Statement of Defence instead of the

statement of claim in formulating the case of the Claimant (Ground 2).

The Respondents submitted a singular issue thus:
Whether going by the facts and circumstances of this case, the Appellant is entitled to the reliefs sought at the lower Court.

In my view and humbly, a sole issue will fairly and justly determine this appeal as follows:
Whether the Court was right given the evidence before it to have dismissed the Appellant’s case.

APPELLANT’S SUBMISSION
Mr. Ayodeji M. Esan Esq. for the Appellant, submitted that, the Appellant established his case by acts of ownership over a sufficient length of time, long possession, enjoyment and proof of possession of connected or adjacent land and that his predecessors’ title was never questioned for over thirty-two (32) years before the alleged trespass by the Respondents. In support he cited the cases of IDUNDUN V. OKUMAGBA 1976 9-10 SC 227, FALEYE V DADA 2016 15 NWLR PT. 1534 80 and OLANIYAN V. FATOKI 2013 17 NWLR PT. 1384 477 and NKADO V. OBIANO 1997 5 NWLR PT. 503 31 amongst others. That, Exhibits 1, 5 and 6 supported his case. Further that, the 2nd Respondent’s

admission that the area leased by the Appellant to Bartoletti Nig. Ltd. was not in dispute was an acknowledgment of the Appellant’s title and needed no further proof. In support he cited the case of ADUSEI V. ADEBAYO 2012 3 NWLR PT. 1288 534.

He argued that Exhibit 1, the lease agreement between the Appellant’s father and Messrs Bartolettiii Nog. Ltd. for the use of the Rock in the area of dispute since 1976 tendered at the Court below, came under the provision of Section 162 of the Evidence Act 2011, as amended. That, the Court was wrong not to have upheld that submission in the light of Section 162 on Exhibit 1 especially with the admission by the Respondents and their witnesses. In support, he cited the cases of SALAWU V. YUSUF 2007 12 NWLR PT. 1049 707, REPTICO S. A. GENEVA V. AFRIBANK NIG. LTD . 2013 14 NWLR PT. 1373 12 and OKEKE V. NWOLIM 2015 5 NWLR PT. 1453 444. He argued that, Appellant’s Exhibit 5 qualified under Section 162 of the Evidence Act. Further that, failure of the Appellant to lead evidence on the boundary of the land in dispute was not fatal to his case as the issue of boundary demarcation had been settled by

evidence at trial and cited the case of ODUNZE V. NWOSU 2007 13 NWLR PT. 1056 1.

The learned Counsel contended that the Court set up a different case for the Appellant from that which already was contained in his Statement of claim and cited the cases of REPTICO S.A. GENEVA V. AFRIBANK NIG. LTD supra, NKUMA V. ODILI 2006 6 NWLR PT. 977 and ADEOSUN V. GOV. EKITI STATE 2012 4 NWLR PT. 1291 581. In conclusion, he submitted that the Appellant established his case on the line of acts of ownership and long possession and urged that the appeal be allowed as having merit.

In response on behalf of the Respondents, Mr. O. O. Fatimehin Esq. submitted that, the Appellant did not deny the 2nd Respondent’s right to lease the portion of rock to the 1st Respondent as the 2nd Respondent’s family is the rightful owner but took the 1st Respondent as a stranger. That, the rock the Appellant claimed he leased out is different from the one that was leased out to the 1st Respondent. The lease agreement, Exhibit 1, the learned Counsel argued, was of no assistance to the Appellant’s case in proof of title to the land in issue. Further that, the Appellant

failed to ascertain the particular rock in prosecution of his claim as there are two (2) distinct rocks, Itajuju rock A and Itajuju rock B. He asserted that, the Appellant admitted his ownership of the land granted for the Appellant’s house which is around the land in dispute and the rock is between that land and the main road which borders his exclusive land. Therefore, there is no need for further proof he added and cited the case of SALAWU V. YUSUF 2007 12 NWLR PT. 1049 707 and the Appellant should be stopped from any denial of such admission. He cited the cases of NORTH LTD. V. YAN 2001 FWLR PT. 54 280 and ODUTOLA V. PAPERSACK NIG. LTD. 2001 ALL FWLR PT. 330 1214 in support. He submitted that, the acts of ownership by the Appellant did not connect or link to the land in dispute. That, Exhibit 15 supported the case of the 2nd Respondent as opposed to that of the Appellant and urged that it be relied upon being documentary and best form of evidence. In support, he cited the cases of AKINBISADE V. STATE 2006 17 NWLR PT. 1007 184, DUROJAIYE V. CONTINENTAL FEEDERS NIG. LTD. 2001 10 NWLR PT. 722 657 and FAGBENRO V. AROBADI 2006 NWLR PT 978 172. In

conclusion, he urged that, the appeal be dismissed as lacking merit.

THE POSITION OF THE COURT
I have painstakingly considered the Record and all the briefs filed and exchanged by the parties with regard to this appeal. Having so done, I shall proceed in the determination of the sole Issue hereunder reproduced for ease of reference, first, with the findings of the Court below.

SOLE ISSUE
Whether the Court was right, given the evidence before it, to have dismissed the Appellant’s case.

now elementary that, proof is on the preponderance of evidence or balance of probabilities. The party who asserts has the burden of proof which he must discharge with cogent and credible evidence for his case not to fail before it shifts to the opposing party. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228.

2005 ALL FWLR PT. 278 1100, IRAGUNIMA V. RSHPDA 2003 FWLR PT. 169, CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC and SOLOMON ECHANOMI V. MRS PHILOMENA OKOTIE & ORS 2011 LPELR-CA/B/247/2009.

FATOYINBO & ORS V. WILLIAMS alias SANNI & ORS 1956 1 FSC 87. Where the trial Court satisfactorily performs its duty, an appellate Court will not interfere. See the cases of WOLUCHEM V. GUDI supra, ENANG V. ADU supra and IGAGO V. THE STATE 1999 12 SCNJ 140.

The Court found that, the Appellant failed to “specifically plead the boundaries of the land in respect of which he approached the Court.’’ See page 669 of the Record. Where there is need to declare title or ownership in respect of a piece or parcel of land and there appears to be dispute or lack of clarity about the identity of the land, the law is settled and clear that, the Claimant has the responsibility to prove and establish the precise area of his claim. See the cases of TEMILE V. AWANI 2001 FWLR PT. 62 1937, BABATOLA V. ALAWOROKO 2001 VOL. 5 MJSC 17 and OTANMA V. YOUDUBAGHA 2006 2 NWLR PT. 964 337.

In the instant, the precise area of trespass must be laid bare before the Court and not for the Court to guess or navigate for the party. It was clear from the Record that, particularly the testimonies of DW2 and DW5 that, the area covered by Exhibit 1 the said lease,

was not in dispute but the portion the 2nd Respondent leased out to the 1st Respondent. The Court correctly in my view and humbly found that both sides knew the portion of land in dispute, therefore, its identity was not in issue. It is clear that, it is not in all cases for declaration of title to land that survey plan in respect of the land in dispute becomes necessary. Where there is no difficulty in identifying the land in dispute as herein, survey plan becomes unnecessary. See the cases of KYARI V. ALKALI & ORS 2001 LPELR-SC 224/1993, CHIEF SOKPUI II V. CHIEF TAY AGBAZO 1951 13 WACA 24, CHIEF DANIEL IBULUYA V. DIKIBO 1976 6 SC 97 and ATOLAGBE V. SHORUN 1985 1 NWLR PT. 2 360.

It needs also be noted that once a Claimant produces what he claims to be an instrument of grant, he does not automatically become entitled to a declaration in respect of the land in dispute. See the case of ROMAINE V. ROMAINE 1992 4 NWLR PT. 238 650. Consequently, the property in issue between the parties and as correctly found by the Court was the portion of Ojuju rock leased to the 1st Respondent by the 2nd Respondent. See pages 669-670 of the Record.

The Court found one

of the main documents anchoring the Appellant’s case, Exhibit 1, the lease agreement entered into in 1976 between the Appellant’s father, Chief Awoseyila Adurosakin, Alamo of Alamo family of Isaba Quarters, Ikole Ekiti and two (2) other families with Bartoletti Nig. Ltd. not to qualify under Section 162 of the Evidence Act as there was no reference therein to an earlier agreement of twenty years before the date it was made. One agrees with that position as stated on page 667 of the Record.

From the Record, the Appellant pursued his case on traditional evidence, acts of ownership extending over a sufficient length of time, numerous and positive to warrant an inference of ownership, long possession and proof of possession of connected or adjacent land in rendering the ownership of adjacent parcels of land probable, four out of the five known methods of proving land ownership. See the cases ofIDUNDUN V. OKUMAGBA 1976 6-9 SC 227, ATANDA V. AJANI 1989 3NWLR PT. 111 511 and KYARI V. ALKALI 2001 FWLR PT. 60 1481. However, the Appellants specifically pleaded ownership of the disputed land from time immemorial as was equally claimed by the Respondents.

The Court in my considered view and humbly, found correctly that, the Appellant failed to prove his traditional root of title. It stated thus on page 674 of the Record:
“…The evidence of the CW3 would not be enough in satisfaction as to traditional history because the evidence of the CW3 was as regards the land leased to Bartoletti Nig. Ltd. and that was not the land in dispute.’’

It stated further on the same page:
“The evidence of the CW4 and his witnesses was scanty and there was no tracing of the lineage from the original settlers to the claimant. Put another way, the evidence of the claimant was devoid of any genealogical linkage between the first settlers who were not named and the claimant…
The claimant obviously had failed to discharge the burden placed on his shoulders in proof of traditional history.’’

Whether or not there were acts of long possession, the case of the Appellant would not be assisted given the foregoing finding of the Court. Where a party failed to establish one of the five methods of proof of ownership, he would not be permitted to rely on long possession or any act of

ownership to prove title. See BALOGUN V. AKANJI 1988 1 NWLR PT. 79 301, IBENYE V. AGWU 1998 II NWLR PT. 574 372 and REGISTERED TRUSTEES OF THE DIOCESE OF ABA V. NKUME 2002 FWLR PT. 90 1270. Long possession or user of land is settled, cannot birth ownership. See the cases of CHIEF TIJANI JEGEDE V. BANKOLE GBAJUMO 1974 10 SC 183, O.K.O MOGAJI & ORS V. CADBURY NIG. LTD. 1985 LPELR-1889 SC, THOMAS V. HOLDER 12 WACA P. 78, AROMIRE & ORS V. AWOYEMI 1972 1 ALL NLR 101 and VINCENT BELLO V. MAGNUS EWEKA 1981 1 SC 101.

The basic principle of law is that, in a claim for damages for trespass to land, for the Claimant to succeed, he must establish exclusive possession of the land at all times material to the commission of the alleged tort by the other party. See the cases of PROVOST LACOED V. EDUN & ORS 2004 LPELR-SC 48/1999, OLAGBEMIRO V. AJAGUNGBADE III 1990 3 NWLR PT. 136 37, ADEBANJO V. BROWN 1990 3 NWLR PT. 141 661 and OGBU V. ANI 1994 7 NWLR PT. 355 128. One is able to agree with the Court from the Record that, the Appellant failed to discharge that burden. Where claim for damages for trespass failed, as herein, claim for injunction must fail

automatically too. See the case of MOGAJI V. CADBURY supra.

In the light of the foregoing, one finds no reason why the decision of the Court below should be disturbed having carefully considered the Record before this Court in respect of this appeal.

In the result, the sole Issue in this appeal is resolved against the Appellant. This appeal cannot be allowed as it is unmeritorious and accordingly hereby fails. The Judgment of the High Court of Ekiti State delivered by Hon. Justice A. L. Ogunmoye on April 3rd 2017 is hereby affirmed.

THE CROSS APPEAL
The Respondents herein cross-appealed being dissatisfied with the decision of the Court which as afore stated, dismissed the case of the Appellant (the Claimant at the Court below) as well as the case of the Respondents (the 1st and 2nd Defendants/Counter-claimants respectively at the Court below).

The 1st and 2nd Respondents/Cross-Appellants at the Court below counter-claimed thus:
a. A declaration that the lease agreement between the 2nd defendant and the 1st defendant is valid, regular and lawful.
b. A declaration that the 2nd defendant is entitled to a reversionary

interest on the land in dispute after the expiration of the lease agreement between him and the 1st defendant.
c. An order setting aside the survey plan of the claimant in respect of the said land having been improperly, illegally and irregularly procured.
d. An order of perpetual injunction restraining the claimant, his servants, privies, agents and assigns from committing any act or further acts of trespass on the land in dispute or laying wrongful claim thereon now, forthwith and henceforth.
e. The sum of N50,000, 000 (Fifty Million Naira) only as general damages for the conduct of the claimant on the said land.

The Cross-Appellants on May 14th 2019 filed Additional Record of Appeal, which was deemed properly filed and served on June 24th 2019, containing their Notice of Cross-Appeal dated January 21st 2018, and filed January 23rd 2018. The Notice of Cross-Appeal containing five (5) grounds and seek the following relief:
To allow the Cross-Appeal and set aside the judgment of the lower Court dismissing the counter claim of the Defendant/Counter Claimant.

Briefs were filed and exchanged between the parties in compliance with

the Rules of this Court. The Respondents/ Cross-Appellants’ brief, dated May 15th 2019 and filed same date was settled by O. O. Fatimehin Esq. The Appellant/Cross-Respondent’s brief dated September 11th 2019, filed on September 13th 2019 and deemed on September 19th 2019 was settled by Ayodeji Makanjuola Esan Esq.

The position of the Respondents/Cross-Appellants is that, the land in dispute is totally different from the one the Appellant/Cross-Respondent leased to both Bertoletti Nig. Ltd. and Kopek Construction Ltd. That, there are two rocks on the disputed land with clear boundaries and all the adjoining land to the land in dispute belong to his family, which family sometime gave land to the Appellant/Cross-Respondent for his residence, being called palace. That, the area leased to the said two companies is not in contention as it belongs to the Appellant/Cross-Respondent.

ISSUES SUBMITTED FOR DETERMINATION BY THE PARTIES
The Respondents/Cross-Appellants submitted the following two (2) issues:
1. Whether going by the facts and circumstances of this case, the Respondents/Cross Appellants are entitled to the reliefs sought at

the lower Court (Grounds 2, 3 and 5).
2. Whether the trial Court was right to have dismissed the counter claim of the 2nd Respondent/Cross-Appellant in view of the express and unequivocal admission that the adjoining land to the land in dispute belongs to the 2nd Respondent/Cross Appellant (Grounds 1 and 4).

The Appellant/Cross-Respondent adopted the issues submitted by the Respondents/Cross-Appellants.

Having very carefully considered the two (2) issues submitted by the Respondents/Cross-Appellants, one holds the view and humbly that, determination of one is determination of the other. In other words, they both seek the same thing in substance. Therefore, in pursuit of fairness and justice, a singular issue as follows shall adequately suffice:
Whether or not the Court below was right to have dismissed the Counter-claim of the Respondents/Cross- Appellants given the evidence presented before it.

SUBMISSIONS ON BEHALF OF THE PARTIES
The learned Counsel for the Cross-Appellants, Mr O. O. Fatimehin Esq. contended that, the Court was wrong to have dismissed the case of the Respondent/Cross-Appellants for inconclusive evidence where

there was evidence of the numerous acts of ownership of the land and the adjoining lands. That, the Appellant/Cross- Respondent admitted the grant of the land from the Respondents/Cross- Appellants and that they relied on acts of ownership spanning over several years. He cited in support the case of BALOGUN V. AKANJI 2005 10 NWLR PT. 933. He contended that, the failure of the Court to make a report of its findings at the locus in quo, occasioned a miscarriage of justice to the 2nd Respondent/Cross-Appellant. Further that, from the finding of the Court at the locus in quo, the only inference to be drawn is that, the boundaries of land upon the rock is as described by the 2nd Respondent/Cross-Appellant and that its different from the portion of the rock once leased out by the Appellant/Cross-Respondent. The failure of the Court to have a made a finding on whether it is the same rock the parties referred to, he submitted, also occasioned a miscarriage of justice of justice against the Respondents/ Cross-Appellants. He argued that, the Appellant/Cross-Respondent failed to tender the survey plan he frontloaded because it would have militated against his case and

that the failure of the Court to invoke Section 167 (d) of the Evidence Act in that regard further occasioned miscarriage of justice on the Respondents/ Cross-Appellants. He urged that, this Court should disturb the findings of the Court in that regard as it is perverse and had caused the Respondent/Cross-Appellant great financial loss and that general damages should be awarded in compensation thereof.

The learned Counsel argued that, though the 2nd Respondent/Cross-Appellant failed to trace the root of his title in line with the traditional method of proof, but since he led sufficient unchallenged evidence in proof that the adjoining land in dispute belongs to him and that his family had exercised acts of ownership and possession over the said land, the Court ought to have found in his favour. In support, he cited the case of I.B.W.A. LTD. V. IMANO NIG. LTD. 2001 FWLR PT. 44 421. That, the admission by the Appellant/Cross-Respondent that the 2nd Respondent/Cross –Appellant gave him land to build supported the case of the latter and needed no further proof. He cited the cases of SALAWU V. YUSUF 2007 12 NWLR PT. 1049 707, NORTH LTD. V. YAN 2001 FWLR

54 280 and ODUTOLA V. PAPERSACK NIG. LTD. 2001 ALL FWLR PT. 330 1214. In conclusion, urged the Court to set aside the decision of the Court and uphold the Cross-Appeal of the Respondents/Cross-appellants.On the other hand, in opposition, Mr. Ayodeji Makanjuola Esan Esq. submitted that, the Respondents/Cross-Appellants were bound by their pleading which based root of title on traditional history and that they failed to so establish. That, the failure supported the case of the Appellant/Cross-Respondent and cited in support the cases of NRUAMAH V. EBUZOEME 2013 13 NWLR PT. 1372 474, MOMOH V. UMORU 2011 15 NWLR PT. 1270 217 and EHOLOR V. OSAYANDE 1992 6 NWLR PT. 249 524. Further that, the oral evidence of the Respondents/Cross-Appellants was discredited by overwhelming documentary evidence which rendered their evidence unreliable. He submitted that the lack of credible, cogent and conclusive evidence and the many inconsistencies in the evidence of the Respondents/Cross-Appellants and their witnesses did not assist their case and therefore it failed. In support, he cited the cases of NWOKIDU V. OKANU 2010 3 NWLR PT. 1181 362, ALLI V. ALESINLOYE 2000 6

NWLR PT. 660 117 and ADEJUMO V. AYANTEGBE 1989 3 NWLR PT. 110 417. He argued that Exhibit 15 cannot serve as an admission of any right to the Respondents/Cross-Appellants and referred to Section 19 of the Evidence Act as well as the cases of OGUANDU V. CHIEGBOKA 2013 6 NWLR PT. 1351 588, NARINDEX TRUST LTD. V. NIMB LTD. 2001 10 NWLR PT. 721 and A.T.M. PLC. V. B.V.T. LTD 2007 1 NWLR PT. 1015 259. In conclusion, he urged that, the Cross-Appeal be disallowed as unmeritorious and to grant the reliefs sought by the Appellant/Cross-Respondent.

THE COURT
I have painstakingly read through the printed Record before this Court, including all the processes filed and exchanged by the parties for and against this Cross-appeal. Having so done, I proceed with the consideration of the sole issue as adopted which is hereunder reproduced for ease of reference:

SOLE ISSUE
Whether or not the Court below was right to have dismissed the Counter-claim of the Respondents/Cross Appellants given the evidence presented before it.

It is elementary that the function of evaluation of evidence and ascription of probative value is essentially that of the trial Court

which is its primary function. In other words, issues of fact are pre-eminently those of the Court of trial. The presumption is that, the decision of the trial Court is correct and must be disproved by the Appellant before an appellate Court can interfere. See the cases of DANIEL OGBAJE V. ABUJA INV. & PROPERTY DEV. CO. LTD. 2007 LPELR-CA/A/173/2005, NKEBISI V. THE STATE 2010 LPELR-SC 395/2002, WOLUCHEM V. GUDI 1981 5SC 291, ENANG V. ADU 1981 11-12 SC 25, IGAGO V. THE STATE 1999 12 SCNJ 140, GABRIEL OKUNZUA V. MRS E. B. AMOSU & ANOR 1992 LPELR SC178/1990 and WILLIAMS V. JOHNSON 1937 2 WACA 253.

It is further the law and elementary too that, proof is on the preponderance of evidence or balance of probabilities. The party who asserts has the burden of proof which he must discharge with cogent and credible evidence for his case not to fail before it shifts to the opposing party. See the cases of DAODU V. NNPC 1998 2 NWLR PT. 538 355, KALA V. POTISKUM 1998 3 NWLR PT. 540 1, ITAUMA V. AKPE-IME 2000 7 SC PT 11 24, ELIAS V. DISU 1962 1 ALL NLR 214 and LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228. A party is not allowed to rely on the weakness of the case

of the opposing party, rather on the strength of his own case. I shall therefore commence with the consideration of the finding of the Court below in its evaluation of the evidence before it.

The Court found correctly that, the issue in the main, in the Counter-claim was in respect of the portion of land leased to the 1st Respondent/Cross-Appellant, the rock being excavated by the 1st Respondent/Cross-Appellant. See page 681 of the Record. It further correctly analyzed and reached the conclusion as opposed to the case of the 2nd Respondent/ Cross-Appellant, the Eleise, that, his family, the Ilara family was not part of the Ilamo family over which the Appellant/Cross-Respondent as Alamo of Ilamo was the Oba and that he had exclusive access to the portion of the rock which housed the Ojuju shrine in his claim of ownership. It concluded thus on pages 681-683 of the Record:
“… All these had made me to disbelieve the claim of the DW2 and DW5 that only the Eleise had exclusive access to the ojuju shrine.’’

It stated further as follows:
“It was the testimony of the DW2 and DW5 that Oderinde was the first Eleise, the first

settler on the land in dispute and the person who came with Ojuju deity from Ile- Ife…
It was however the evidence of the DW2 under cross examination that it was Ogunmodede that came from Ile Ife. This piece of evidence of the DW2 not only contradicted the pleadings that it was Oderinde who came from Ife, it also contradicted her evidence in chief. As to the claim that Oderinde as the first settler on the land in dispute came from Ife, this could not have been true in that if the DW2 and DW5 were to be believed as to their descent from Oderinde four or five generations back, then Oderinde as the first settler could not have lived earlier than one hundred and fifty years ago. This was not a probable story. The evidence of the CW1 that he knew Oderinde in 1936 was not successfully discredited and I believe him as such. My position is strengthened by the evidence of the DW5 that Oderinde was his grandfather. It was not likely that Oderinde, whom the CW1 knew in 1936 and who was the great grandfather of the DW5, would have been the first settler of the land in dispute from time immemorial. The phrase ‘’from time immemorial’’ had been

defined to mean ‘’original ownership, and the acquisition of title several generations ago…
…The story of the 2nd defendant as to the origin of the land in dispute is one that I find difficult to believe.’’
See pages 684-685 of the Record.

On page 686 of the Record, the Court held thus:
“…I find the evidence of traditional history of the 2nd defendant improbable and therefore unreliable and I reject it as such.’’

One agrees with the foregoing position of the Court given the Record before this Court and the Court was right to have found that, the rule in KOJO V. BONSIE & ANOR 1957 1 WLR 1223 did not apply. Therefore, it was needless for it to consider the acts of ownership and possession as both parties argued it should have done. Consequently, the Court on page 688 of the Record concluded thus:
“In all the defendants have failed to prove their case by preponderance of evidence with the implication that they are not entitled to the reliefs claimed.’’

It therefore dismissed the claim.

This Court, from the Record before it, will not disturb the foregoing position

of the Court below. In consequence, the singular issue is hereby resolved against the Respondents/Cross-Appellants. Therefore, this Cross-appeal lacks merit and is hereby accordingly dismissed. The Judgment of the High Court of Ekiti State delivered by Hon. Justice A. L. Ogunmoye on April 3rd 2017 is hereby affirmed.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances:

Ayodeji Esan, Esq., with him, Kayode Oluwasola, Esq. For Appellant(s)

O.O. Fatimehin, Esq. – for the Respondents and Cross-Appellants For Respondent(s)