MR. ADEYEMI ABIONA v. EMILOYE FALAYE (2019)

MR. ADEYEMI ABIONA v. EMILOYE FALAYE

(2019)LCN/13260(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of May, 2019

CA/L/380/2013

RATIO

REPLY BRIEF: FUNCTION AND PURPOSE

Let me brevi manu state that the function of a reply brief is to refute the arguments in the respondents brief and dislodge them if possible. It is to answer the arguments in the respondent brief which were not taken in the appellant brief. See ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13, OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 17 and ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 42.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

REPETITION OF AN ARGUMENT BY COUNSEL DOES NOT MAKE IT MORE VALID

The repetition of an argument by counsel does not improve the quality of the argument or make it acceptable if it were ordinarily unacceptable. See FSB INTERNATIONAL BANK LTD vs. IMANO NIGERIA LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1816) 1 at 43.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

LAND LAW: 5 WAYS OF PROVING TITLE TO LAND

The parties have referred to the five ways or methods of proving title to land, id est:
1. By traditional evidence
2. By production of title documents
3. Proving acts of ownership
4. Acts of long possession and enjoyment of land
5. Proof of possession of connected or adjacent land in circumstances which render it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See IDUNDUN vs. OKUMAGBA (supra) and THOMPSON vs. AROWOLO (2003) 4 SC (PT 2) 108 at 155-156. The proof of any one of the five ways or methods will suffice: MOGAJI vs. CADBURY (1985) 2 NWLR (PT 7) 393, EZEOKE vs. NWAGBO (1988) 1 NWLR (PT 72) 616 and IRAGUNIMA vs. R. S. H. & P. D. C. (2003) LPELR (1533) 1 at 13 -14.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

LAND LAW: HOW TO PROVE PURCHASE OF A LAND
The purchase of land can be proved by purchase receipt or a land agreement. The Respondent adduced evidence showing that he purchased the land from the Dipeolu Family and that he was issued a purchase receipt and a deed of conveyance and that he went into possession of the land: ADEPATE vs. BABATUNDE (2002) 4 NWLR (PT 756) 99, BASORUN vs. MORONKEJI (2017) LPELR (43247) 1 at 28 and AMINU vs. OGUNYEBI (supra).PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

LAND LAW: DECLARATION OF TITLE: SUCCEEDS ON STRENGTH OF PLAINTIFFS CASE AND NOT WEAKNESS OF DEFENDANTS CASE
Without a doubt, it is hornbook law that in an action for declaration of title the claimant succeeds on the strength of his case and not on the weakness of the defence, except where the defence supports the claimants case: KODILINYE vs. ODU (supra) at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE ACT: SECTION 136
Section 136 of the Evidence Act, 2011 which provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person; but that the burden may in the course of a case be shifted from one side to the other, enacts and codifies the doctrine of the shifting burden of proof:BUHARI vs. OBASANJO (2005) 13 NWLR (PT 941) 1 at 122. The doctrine of the shifting burden of proof was explained by Ogunwumiju, JCA in ADIGHIJE vs. NWAOGU (2010) 12 NWLR (PT 1209) 419 at 463 as follows:
Section 137 of the Evidence Act, 2004 (now Section 136, Evidence Act, 2011) provides for the burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side regard being had to any presumption that may arise in the pleadings. If such party adduces evidence which might reasonably satisfy a Court that the fact sought to be proved is established, the burden lies on the party against whom judgment will be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with
By Section 137 (Section 136 Evidence Act 2011) the burden of proof is not static. It fluctuates between the parties. the first burden (is) on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who will fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party And so the burden change takes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES:

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

MR. ADEYEMI ABIONA – Appellant(s)

AND

EMILOYE FALAYE – Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Lagos State in SUIT NO. IKD/107/2009: MR. EMILOYE FALAYE vs. MR. ADEYEMI ABIONA delivered on 4th February 2013. The dispute in the action is in respect of a piece of land situate at Eruwen Ona, off Obafemi Awolowo Road, Ikorodu. The Respondent, as Claimant before the lower Court claimed the following reliefs against the Appellant:
(1) A declaration that the plaintiff is entitled to the statutory right of occupancy of the parcel of land located at Eruwen Ona, Off Obafemi awolowo, Road, Ikorodu, covered by survey plan No. YG/LA/0785/565 of 31st day of December 2001.
(2) The sum of N2,480, 000 as special and general damages against the defendant.
(3) An order of perpetual injunction restraining the defendant, his agents, servants, privies or any other person or persons claiming through or by him from further trespassing on the parcel of land belonging to the claimant.

The parties filed and exchanged pleadings and the matter was subjected to a plenary trial at which testimonial and

documentary evidence was adduced. The lower Court entered judgment in favour of the Respondent and the Appellant being dissatisfied appealed against the said judgment. The Notice of Appeal which was filed on 28th February 2013 is at pages 274-275 of the Records, while the judgment of the lower Court is at pages 248-273 of the Records.

The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants brief was filed on 14th June 2013; the Appellant filed a Reply Brief on 10th November, 2015 but deemed as properly filed on 11th July 2017. The Respondents Brief which was filed on 14th August 2015 was also deemed as properly filed on 11th July 2017. The learned counsel for the parties adopted and relied on their respective briefs at the hearing of the appeal.

The Appellant distilled two issues for determination, namely:
1. Whether the Respondent as Claimant in the trial Court established by cogent and credible evidence his title to the land in dispute by any of the 5 ways enunciated in the case of Idundun V. Okumagba [1976] NMLR 200.
2. Whether in the circumstances of

this case, the evaluation of evidence and the ascription of probative value by the trial Court is not only erroneous but occasioned a miscarriage of justice and ought not to be set aside by the Court of Appeal.

The Respondent formulated three issues for determination, as follows:
1. Whether the Respondent had establish [sic] sufficiently credible evidence to his title and ownership of the parcel of land the subject matter of this case.
(2) Whether the Appellants claim of ownership of the land by Adegbalujo was well founded and supported by any credible evidence before the tower [sic] Court.
(3) Whether the Respondent was entitled to be granted a right to Declaration and award of Damages.

It seems to me that a sole coalescent issue which will encompass the issues distilled by the parties will suffice for the determination of this appeal. The sole issue which I find apt and on the basis of which I will consider the submissions of learned counsel and resolve this appeal is as follows:
Whether on the preponderance of evidence or balance of probability the lower Court rightly held that the Respondent

proved his case and was entitled to the reliefs claimed.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that in an action for declaration of title to land, the onus is on the claimant to prove his case and that he succeeds on the strength of his case and not on the weakness of the defence. The cases of KODILINYE vs. ODU (1935) 2 WACA 336, OYENEYIN vs. AKINKUGBE (2010) 1-2 SC 1 at 35 among other cases were referred to. It was stated that the Appellant having challenged the Respondents root of title, the Respondent must prove the validity of his root of title and that he has a better title vide ADOLE vs. GWAR (2008) 3-4 SC 78 at 99 and ALLI vs. ALESHINLOYE (2000) 4 SC (PT I) 111. The five ways of proving title to land as laid down in IDUNDUN vs. OKUMAGBA (1976) NMLR 200 were referred to and it was contended that the Respondent did not prove any of the four ways which he relied upon.

It was argued that the Respondent traced his root of title to the Dipeolu Family, but admitted the overlordship of the Adegbalujo Family; thereby admitting that the interest he got from Dipeolu Family was invalid. The title documents issued to

the Respondent by Dipeolu Family was said not to be capable of passing any interest to him on the principle of nemo dat quod non habet, more so when the Dipeolu Family could not have given the Respondent a Deed of Conveyance in 2002 after the commencement of Land Use Act which vested all land in the State in the Governor. The cases of UGO vs. OBIEKWE (1989) 1 NWLR (PT 99) 566, ILONA vs. IDAKWO (2003) 5 SC 216 at 237, SAVANNAH BANK vs. AJILO (1989) 1 NWLR (PT 97) 305, ABIOYE vs. YAKUBU (1997) 5 NWLR (PT 190) 130 among other cases were relied upon.

The Respondent, it was maintained, did not prove his possession of the disputed land and that the possession by the Appellant was good against the whole world except the true owner of the land, which the Respondent had not been shown to be. The cases of ODEKILEKUN vs. HASSAN (1997) 12 NWLR (PT 531) 56, ADERIBIGBE vs. OBI (1971) 1 ANLR 116, MASKALA vs. SILLI (2002) 6 SC (PT 2) 210 at 218-219 and NWOSU vs. UDEAGA (1990) 1 NWLR (PT 125) 188 were cited in support. It was asserted that the Respondents evidence not having established his title, the lower Court did not properly evaluate the evidence and therefore

drew wrong and perverse conclusions which occasioned a miscarriage of justice for which an appellate Court will interfere to correct the erroneous findings. The cases of ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT 2) 360, OKONKWO vs. OKONKWO (1998) 3 NWLR (PT 230) 426, MAFIMISEBI vs. EHUWA (2007) 1 SC (PT 2) 73 among other cases were called in aid.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the evidence he adduced established his root of title by preponderance of evidence as the Appellant did not successfully challenge his evidence. The Court judgment which the Appellant pleaded was by virtue of which the Adegbalujo Family owned the disputed land, it was stated, was contradicted by the DW1, (the head of Adegbalujo Family), who testified that the family inherited the land customarily. The five ways of proving title to land was referred to and it was stated that the Respondent tendered his deed of conveyance and purchase receipts, as well as testified and tendered documents showing his acts of long possession and that proof of any one of the five ways was sufficient for a claimant to succeed. The cases of

GANKON vs. UGOCHUKWU CHEMICAL IND LTD (1993) 6 NWLR (PT 297) 55 ratio 12, NNADOZIE vs. OMESU (1996) 5 NWLR (PT 446) [no page stated] ratio 5, IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227, AMINU vs. OGUNYEBI (2004) ALL FWLR (PT 221) 1528 ratio 7 and EGBO vs. AGBARA (1997) 1 NWLR (PT 481) 293 at 317-318 ratio 10 were referred to. The Respondent contends that having adduced prima facie evidence of his title, the Appellant failed to discharge the burden which shifted to him to prove the facts he pleaded of a Court judgment by which Adegbalujo Family possessed the land; as no Court judgment was tendered. Furthermore, that the Appellant’s witness testified that the Adegbalujo Family owned the land customarily thereby presenting contradictory evidence which cannot be relied upon. The cases of UNION BANK vs. OZIGI (1994) 3 NWLR (PT 333) 385 ratio 8 and AKANNI vs. ODEJIDE (2004) ALL FWLR (PT 218) 812 at 854-855 ratio 2 were relied upon.

It was asserted that the Respondent having by cogent and credible evidence established his entitlement to a declaration of title was entitled to be awarded the special damages proved by the oral and documentary evidence he adduced which was

unchallenged vide AUDU vs. OKEKE (1998) 3 NWLR (PT 542) 373 ratio 6 and 7. It was conclusively submitted that the Respondent having shown that he has a better title to the disputed land than the Appellant, was entitled to the award of general damages. The cases of SPDC vs. OKONEDO (2007) ALL FWLR (PT 368) 1104 at 1139, BADMUS vs. ABEGUNDE (1999) LRCN 2912 at 2925 ratio 1 and H. B. C. I. vs. ALFIJIR MINING NIG LTD (1993) 4 NWLR (PT 287) 386 ratio 4 were cited in support.

APPELLANT’S REPLY ON LAW
The Appellants Reply Brief is an academic discourse on the difference between a Deed of Assignment and Deed of Conveyance under Nigerian Land Jurisprudence; the Respondent having used the terms Deed of Conveyance and Deed of Assignment interchangeably in his brief. The Appellant then concluded in paragraph 5 of the Reply that a Deed of Conveyance is not the same as a Deed of Assignment and thus both expressions cannot be used interchangeably as the Respondent had done in the Respondents Brief of Argument. The Appellant doubled down on his submission that a Deed of Conveyance is unknown to law since the Land Use Act and that

the Respondents Deed of Conveyance ought not to have been admitted in evidence. The Appellant reiterated his submissions that the Respondent is to succeed on the strength of his case and not on the weakness of the defence and generally rehashed the submissions already made in the Appellants Brief.

RESOLUTION
Let me brevi manu state that the function of a reply brief is to refute the arguments in the respondents brief and dislodge them if possible. It is to answer the arguments in the respondent brief which were not taken in the appellant brief. See ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13, OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 17 and ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 42. The repetition of an argument by counsel does not improve the quality of the argument or make it acceptable if it were ordinarily unacceptable. See FSB INTERNATIONAL BANK LTD vs. IMANO NIGERIA LTD (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1816) 1 at 43. The academic discourse on a deed of conveyance being different from a deed of assignment does not in any way impact on the live issues

in this appeal and the entire adventure of the Reply Brief was one which the Appellant should not have embarked upon as it did not add any value to the submissions already made.

Now, as evident from the cold printed Records, the case of the Respondent is that he bought the disputed land from the Dipeolu Family, commenced building on the land but later stopped work due to a downturn in his financial fortunes. He stated that he continued to visit the land and that when he noticed that there was a trespass on the land, he was informed, upon inquiry, that the Adegbalujo Family now owned the land following Court judgment. He demanded to see the Court judgment so that he could ratify his ownership of the land with the Adegbalujo Family. However, no judgment was shown to him. The Respondents case is therefore not acceptance of the ownership of the Adegbalujo Family as submitted by the Appellant.

The Appellants case on the other hand is that the land belongs to the Adegbalujo Family following a Court judgment and that his predecessor in title acquired the land from the Adegbalujo Family. It is his case that his predecessor in title

already had a foundation on the land when the land was sold to him and that he built on the foundation.

ADEPATE vs. BABATUNDE (2002) 4 NWLR (PT 756) 99, BASORUN vs. MORONKEJI (2017) LPELR (43247) 1 at 28 and AMINU vs. OGUNYEBI (supra). The Respondent further adduced evidence on his acts of ownership and possession of the land by starting the construction of a building on the land. (See the testimony of CW1-CW3). By all odds, the evidence adduced by the Respondent made out a prima facie case in respect of his claim of title to the disputed land.
Without a doubt, it is hornbook law that in an action for declaration of title the claimant succeeds on the strength of his case and not on the weakness of the defence, except where the defence supports the claimants case: KODILINYE vs. ODU (supra) at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. However, when as in the instant case, a prima facie case had been made out, the burden shifted to the Appellant to dislodge the prima facie case made out by the Respondent. By the provisions of the Evidence Act, the onus probandi rests on the party who would fail if no evidence is led at all on an issue asserted by him. This is the evidential burden of proof.

It is only after such a party has adduced sufficient credible evidence that the burden of proof would shift to the other side. In the circumstances of this matter, the Respondent having adduced sufficient credible evidence of purchase from Dipeolu Family, starting building construction on the land and that he was never shown any Court judgment by which Adegbalujo Family became the owners of the disputed land; the evidential burden shifted to the Appellant to establish that the Adegbalujo Family was the bona fide owner of the disputed land by virtue of Court judgment as averred in paragraph 7 of the Statement of Defence (see page 54 of the Records).
Section 136 of the Evidence Act, 2011 which provides that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person; but that the burden may in the course of a case be shifted from one side to the other, enacts and codifies the doctrine of the shifting burden of proof:BUHARI vs. OBASANJO (2005) 13 NWLR (PT 941) 1 at 122. The doctrine of the shifting burden of

proof was explained by Ogunwumiju, JCA in ADIGHIJE vs. NWAOGU (2010) 12 NWLR (PT 1209) 419 at 463 as follows:
Section 137 of the Evidence Act, 2004 (now Section 136, Evidence Act, 2011) provides for the burden of proof in civil cases. The burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side regard being had to any presumption that may arise in the pleadings. If such party adduces evidence which might reasonably satisfy a Court that the fact sought to be proved is established, the burden lies on the party against whom judgment will be given if no more evidence were adduced, and so on successively until all the issues in the pleadings have been dealt with
By Section 137 (Section 136 Evidence Act 2011) the burden of proof is not static. It fluctuates between the parties. the first burden (is) on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who will fail if no evidence is given in the case. Thereafter, the

second burden goes to the adverse party And so the burden change takes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with.
In the light of the prima facie case made out by the Respondent, the Appellant failed to adduce any evidence in respect of the Court judgment he pleaded. What is more, the testimony of the Appellants witness, the head of the Adegbalujo Family is not in respect of ownership by virtue of any Court judgment, his testimony is that they inherited the land customarily and that Dipeolu Family encroached on the land, but they, the Adegbalujo Family took the land back. It is effulgent that the burden having shifted to the Appellant, the Appellant failed to lead satisfactory evidence on the issue he raised in his pleadings.

In considering the evidence adduced, the lower Court stated as follows at pages 261 -262 of the Records:
What has come through is that the Claimant has adduced evidence which ought reasonably to satisfy the Court that he is entitled to the land if defendant had not claimed that the land was owned by the Adegbalujo family and that the

Dipeolu family from whom the Claimant derives his tittle [sic] are not owners of the land.
In the instant case, the burden now lies on the party against whom judgment would be given if no more evidence were adduced.

The lower Court continued at pages 262-263 and stated as follows:
The testimony of DW1 in paragraph 5 and 6 of his testimony as adopted is that the Dipeolu family encroached on their land and sold it to unknown persons. DW1 acknowledged the Dipeolus family alienation of area of the expanse of land which includes land in issue, but says in effect that encroached on the land, the Dipeolu family which belonged to them. In paragraph 7 of the statement of defence, the Defendant pleaded their title to the land by virtue of a judgment. There is no credible evidence before the Court in proof of the alleged judgment. The testimony of DW1 is that they have now taken over the land and exercised right of ownership.
The sequence of events as can be gathered from the evidence, is that one Kayode Bakare bought the land in issue in 2005 and later sold it to the Defendant in 2006 Exhibit LKJ show.

DW2 gave evidence of his familys acts of ownership and testifies on actions taken and which also started in 2005. Mr. Bakare the alleged vendor of the DW2 gave no evidence before the Court. The testimony of DW1 is that he met some structure on the land. The testimony of CW1 – CW3 is however before the Court that the Claimant had developed the land to lintel level in 2003. DW1 gave evidence that the land was inherited but gave no evidence of how and who founded the land. DW1 simply gave evidence of the Adegbalujo family taking over the land.
I find that in the absence of any proof of judgment as pleaded by the defendant, nor any evidence of how the Adegbalujo founded Erunmen Ona where the land in issue is located, the mere expression of taking over as testified by the DW1 cannot amount to any challenge of the Claimants title or Dipeolu title to the land. I find that the expression of DW1 where he said the land was taken over suggest force and gives no impression of any legal take over of the land in issue..

The lower Court after due evaluation of the evidence and ascription of probative value thereto

conclusively held as follows at page 269 of the Records:
In the instant case, I find that the Claimant has furnished Proof of ownership of the property in issue by the production of the receipt that money was received from him by his Vendor the Dipeolu family, coupled with the proof of rights of ownership he exercised over the land. I find that the evidence of Claimant has probative value. Applying the authority of RABIATU ODOFIN vs. A.R. MOGAJI (1978) VOLUME 11 NSCC PAGE 275, to the instant case, I have placed the evidence before the Court on an imaginary scale. I find that the evidence of CW1, CW2 and CW3 is cogent, credible and conclusive. The scale of justice tilts in favour of the Claimant in this case. I find on the balance of probability that the Claimant has discharged the burden of proving his entitlement to the property.
What has come through is that the Adegbalujo family had simply taken the land over much later after the defendant bought the same from the Dipeolu family. The Defendant on the balance of probability and preponderance of evidence has failed to discharge the burden of establishing that the Adegbalujo family from whom

the Defendant derives his title and not the Dipeolu family, the Claimants vendor owned the land.

It is rudimentary law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the Court of trial which saw, heard and assessed the witnesses. Where a Court of trial unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. However, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) LPELR (1014) 1 at 46, WOLUCHEM vs. GUDI (1981) 5 SC

1 at 47, FASIKUN II vs. OLURONKE II (1999) LPELR (1248) 1 at 47-48 and NIKAGBATSE vs. FRENCH (2014) LPELR (23310) 1 at 30.
The Appellant argues that the findings of fact made by the lower Court are erroneous, perverse and occasioned a miscarriage of justice. I have already set out some pericope from the judgment of the lower Court, showing the reasoning process which culminated in its holding that the Respondent was entitled to judgment. I have painstakingly and insightfully considered the evidence on the cold printed records and it cannot be confuted that the findings of facts made by the lower Court flow from the evidence on record and the conclusions drawn are in accord with the accepted evidence. The lower Court neither took an erroneous view of the evidence adduced nor were the findings made perverse. I am satisfied that the lower Court, which had the advantage of seeing the witnesses testify unquestionably evaluated the evidence and justifiably appraised the facts. In the circumstances, this Court cannot interfere merely to substitute its own views for the views of the lower Court. See ADEBAYO vs. A-G OGUN STATE (2008) ALL FWLR (PT 412) 1193 at 1197

and 1211, SAGAY vs. SAJERE (2000) 4 SC (PT 1) 187 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 622) 174. The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts: WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT II) 66 andEHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. The Appellant has not been able to displace or dislodge the presumption that the findings of facts made by the lower Court are correct.

In considering the Respondents relief for special and general damages and perpetual injunction, the lower Court duly evaluated the testimony of the CW1-CW3 and the documentary evidence tendered in proof of the special damages and correctly found the same as credible, un-contradicted and not discredited (See page 270 of the Records). The court then held as follows:
In the instant case, in determining whether the Claimant is entitled to special Damages, I shall draw strength from the principles laid down in the following authorities on how special damages must be proofed [sic]

I find that special damages of N1,080,000.00 (One million and eighty thousand naira) as claimed, easily lends themselves to quantification and the fact of special damages is specifically pleaded, and is supported by credible evidence. Apart from the fact that the evidence adduced is unchallenged, I find that the evidence led on special damages is not inherently incredible. The evidence is credible in my view and creates no doubt whatsoever in my mind. It is for that reason that I belief [sic] the evidence of CW2 on the special damages he has suffered in this action. I find that the evidence leads to one rational conclusion, and that is that the Claimant suffered the Special damage as claimed
Regarding general damages of N1,400.000.00 (One million, four hundred thousand Naira) based on the circumstances and the finding of this Court that the defendant have [sic] failed to discharge the burden of establishing a better title of the Adegbalujo family from whom he claimed to have bought the land in issue, I find that the Claimant has by credible evidence before this Court, established his Claim to the sum of N 1, 080, 000.00 (one million and

eighty thousand naira) as special damages against the defendant and the Claimant is entitled to General Damages. I however assess the general damages in the circumstances as N100,000.00. (One hundred thousand Naira) only and the sum of N100,000.00 (One hundred thousand Naira) is awarded to the Claimant to be paid by the defendant as general damages in this action
In view of the facts and the law referred to above, I therefore resolve the 6th issue for determination, Whether the Claimant is entitled to damages. in the affirmative.
Regarding the Claimants claim an order of perpetual injunction restraining the defendant, his agents, servants, privies or any other person or persons claiming through or by him from further trespassing on the parcel of land, the relief sought is a consequential order which would naturally flow from the declaratory order sought and granted by this Court in the instant case.
(See pages 270-272 of the Records)

The findings, decision and award made by the lower Court are unassailable. The conflating of the foregoing is that the sole distensible issue distilled by the Court

must be resolved against the Appellant. The Respondent established his case on the preponderance of evidence and balance of probability and the lower Court rightly entered judgement in his favour. The appeal being devoid of merit hereby fails and it is accordingly dismissed. The judgment of the lower Court, Coram Judice: Olaide A. Olayinka, J. is affirmed. The Respondent is entitled to the costs of this appeal which I assess and fix at N100, 000.00.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the judgment, in draft, rendered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. The resolution of the issues discussed and analyzed in the lead judgment, are in accord with my thoughts on the appeal. Therefore, I also dismiss the appeal.

The judgment delivered by Olamide A Olayinka, J, of the Lagos State High Court of Justice, in re-Suit No: IKD/107/2009; 4th February, 2013, is hereby affirmed.
I, abide by the order of costs, awarded in favour of the Respondent.

JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU JCA. I agree

with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.

Appearances:

Mrs. Bukola Adegbuyi-George For Appellant(s)

Mrs. A. A. Omodudu For Respondent(s)

Appearances

Mrs. Bukola Adegbuyi-George For Appellant

AND

Mrs. A. A. Omodudu For Respondent

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