MR. MAYOMI AFEKHUAI & ANOR v. MRS. BISI ODUBONA (2017)

MR. MAYOMI AFEKHUAI & ANOR v. MRS. BISI ODUBONA

(2017)LCN/10060(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of June, 2017

CA/L/132/2015

RATIO

EVALUATION OF EVIDENCE: WHETHER IT’S THE  PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE; WHETHER IT’S THE DUTY OF THE  APPELLATE COURT TO INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

This issue is one challenging the evaluation of evidence carried out by the trial Court. The primary function of evaluation is settled. It is established by a long line of authorities that evaluation of evidence is the primary duty of the trial Court and unless this duty is not carried out as expected or where extraneous matters are allowed in and considered by the trial Court, an appellate Court would ordinarily not interfere, see CPC V INEC (2011) LPELR-8257 (SC) which held thus:

“The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The Court must ensure that it holds the string or scale of justice evenly balanced between the parties so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence. It is the trial Court which has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus it is the Court best suited to assess their credibility. Where a trial Court makes a finding on the credibility of a witness, or appellate Court would not ordinarily interfere.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

EVALUATION OF EVIDENCE: THE DUTY OF THE PARTY CHALLENGING THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

A party challenging the evaluation done by the trial Court must of necessity establish that, that primary duty was not carried out or that it was carried in a manner inconsistent with the requirement of the law. PER YARGATA BYENCHIT NIMPAR, J.C.A.

BURDEN OF PROOF/STANDARD OF PROOF: THE NATURE OF THE BURDEN OF PROOF AND STANDARD OF PROOF IN CIVIL CLAIMS

It is also settled that in a civil claim the standard of proof is on the balance, probabilities or preponderance of evidence. The burden is not static as is the case in criminal trials, here it oscillates and comes to rest on he who would lose if no evidence is further brought as required by the Evidence Act. PER YARGATA BYENCHIT NIMPAR, J.C.A.

DECLARATION OF TITLE TO LAND: THE ESTABLISHED MODES OF PROVING TITLE TO LAND

The claim before the trial Court was reproduced earlier in this judgment, it is basically a relief seeking a declaration of title to land and the 5 settled methods of proving title have been crystallized in the case, along line of cases, one of which is IDUNDUN V OKUMAGBA (1976) 9- 10 SC 227 as follows:

i. By traditional evidence;

ii. By Production of documents of title which must be duly authenticated;

iii. By exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the interference that the person is the true owner of the land;

iv. By acts of possession and enjoyment of the land; and

v. By 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.

It is trite that a claimant is expected to establish just one of the identified methods of establishing title to be able to succeed because each method is independent of the other. Furthermore, a claimant is expected to succeed on the strength of its case and not on the weakness of the case of the defendant, see ANUKAM V ANUKAM (2008) 5 NWLR (PT 1081) 455 @ 472. PER YARGATA BYENCHIT NIMPAR, J.C.A.

IDENTITY OF LAND: ON WHOM LIES THE BURDEN OF ESTABLISHING THE IDENTITY OF THE LAND IN DISPUTE

The Appellants have made heavy weather on the identity of the land in dispute. It is trite that the burden is on the claimant to clearly identify and prove with certainty the land in dispute, see DIKE V OKOLOEDO (1999) 10 NWLR (PT.623) 359.

IDENTITY OF LAND: POSITION OF THE LAW ON WHEN THE ISSUE OF IDENTITY OF LAND WILL ARISE

The identity of the land in dispute only comes into issue by the defendant raising it in the statement of defence. See HENRY ATUCHUKWU v GLORIA ADINDU (2011) LPELR -3821(CA) where the Court held:

“It is much a feted legal stance by the Supreme Court that the identity of the land in dispute will be in issue where the defendant in his statement of defence specifically disputes the description of the land given in the Plaintiff’s statement of claim.” See also ADESINA V DAC ELECTRICAL CO. LTD (2007) ALL FWLR (PT. 369) 1279; AREMU V ADETORO (2007) 16 NWLR (PT.1069) 244 at 257. PER YARGATA BYENCHIT NIMPAR, J.C.A.

IDENTITY OF LAND: WHERE IDENTITY OF THE LAND IN DISPUTE IS KNOWN WHETHER THE DIFFERENT NAMES ASCRIBED TO THAT AREA WILL BE MATERIAL

However, where the identity of the land in dispute is known and evidence adduced by the parties are ad idem on the identity of the land in dispute, the fact that different names are ascribed to or that area where it is located is called by a different name is immaterial as long as the parties are referring to the same parcel of land. See CHUKWUEKE V OKORONKWO (1999) 1 NWLR (PT. 587) 410; MAKANJUOLA V BALOGUN (1989) 3 NWLR (PT. 108) 192 at 201 and AROMIRE V AWOYEMI (1972) 1 ALL NLR (PT. 1) 101 at 113. PER YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES:

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. MR. MAYOMI AFEKHUAI
2. MR. CHRIS REGHA – Appellant(s)

AND

MRS. BISI ODUBONA (NEE GBOLADE) – Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court in suit No: ID/666/2005 delivered on the 10th November, 2014 by HON. JUSTICE A. O. TAIWO. The Court below entered judgment in favour of the Respondent as claimant before the Court below. Dissatisfied with the decision, the Appellants filed an Amended Notice of Appeal on the 11/7/2016 setting out 5 grounds of appeal.

The claim of the Respondent commenced by a writ of summons states thus:
“i. A declaration of title to the land situate at No. 21/22 Oroleye Street, Opebi lkeja, Lagos
ii. An order of perpetual injunction restraining the defendant (Appellant herein) their servants, agents and privies from further trespass on the land in dispute.
iii. The sum of N10,000,000 (Ten Million Naira) as damages for the trespass suffered by the claimants
iv. Cost of action.”

Brief facts of the case are that the 2nd Appellant bought a piece of land from the family of Kuyasi Awuse and was issued a purchase receipt after which he took possession. The Respondent also claimed to have

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bought the land in 1978 and a deed of conveyance executed in her favour by representatives of the Kuyasi Awuse family. The claim proceeded to trial, both sides called witnesses in support of their respective positions and judgment entered for the Respondent.

The Appellants Brief settled by Anthony Omaghomi, Esq., is dated 25th July, 2016 and filed same day. It distilled 2 issues for determination as follows:
1. Whether from the totality of evidence before the Court the Respondent successfully discharged the burden of proof placed on her as Plaintiff to justify the lower Court granting a declaration of title, damages and perpetual injunction in favour of the Respondent.
2. Whether the award of damages in the sum of one Hundred Million Naira is not unreasonable having regards to the circumstances of this case.”

The Respondent’s brief settled by Olagbade Benson, Esq., dated 6th October, 2016 and filed on the 11th October, 2016, it was deemed on the 17/5/2017. The Respondent likewise formulated two issues for determination as follows:
i. Whether the trial Court was right when it held that the claimant/Respondent did prove her

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case and made a Declaration of title in favour of the Claimant/Respondent and perpetual injunction against the Defendants/Appellants considering all the evidence before the trial Court.
ii. Whether the trial Court was right when it held the Appellants to be trespassers on.

Upon a careful consideration of the records of appeal and briefs of the parties, the issues presented by the Appellants are direct and concise for resolution in view of their complaint against the judgment. I shall adopt same for determination in this judgment.

ISSUE ONE
Whether from the totality of the evidence before the Court the respondent successfully discharged the burden of proof placed on her as plaintiff to justify the lower Court granting a declaration of title, damages and perpetual injunction in favour of the Respondent.

The Appellant began by listing out the five methods of proving ownership of land in law as decided in the case of IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 and submitted that the Respondent relied solely on the production of documents of title to establish her case. Furthermore, the Appellants submitted that the

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Respondent who seeks a declaration of title has a duty of establishing the identity of the land in dispute contending that the exact description of the land has not been sufficiently identified from the documents placed before the Court by the Respondent. The Appellants also argued that the description of the land on Exhibit A, the deed of indenture is different from what is contained in Exhibit G, the survey plan and that this discrepancy is sufficient enough to defeat the Respondent’s claim. They contended that the survey plan should have been discountenanced by the lower Court because it is at variance with the pleadings, they referred to PEVER V ADAA (1998) 3 NWLR (PT 540) 129, MOMOH V UMORU (2011) ALL FWLR (PT 588) 7797 SC, NWOKIDU V OKANU (2010) 3 NWLR (PT 1181) 962, OKOCHI V. ANIMKWOI (2003) 18 NWLR (PT 852) 1, UDEZE V CHIDEBE (1990) 1 NWLR (PT 125) 141, ABOYEJI V. MOMOH (1994) 4 NWLR (PT 341) 646, ARABE V ASANLU (1980) 5-7 SC, AGBAOSI V IMEVBORE (2014) 1 NWLR (PT 1389) 556.

In addition, the Appellants argued that by their pleadings, specifically their statement of defence, issues were joined on the identity of the land in dispute and the Court erred

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to have held otherwise, referred to ADUA V ESSIEN (2010) ALL FWLR (PT 535) 359, GBADAMOSI V DAIRO (2007) ALL FWLR (PT 357) 812 SC, ATOLAGBE V SHORUN (1985) 1 NWLR (PT 2) 360. According to the Appellants, the identity of the land is uncertain and the survey plan tendered did not help matters. They disagreed with the findings of the lower Court that the description of the land in the survey plan, Exhibit G is the same as what was mentioned in the pleadings.

Furthermore, the Appellants submitted that the Respondent failed to discharge the burden of proving due execution of the instrument of conveyance. The Appellants argued that Section 132 of the Evidence Act now S. 128 relied upon by the trial Court cannot apply here. They also submitted that the Court’s reliance on Section 155 and 156 of the Evidence Act as to presumption of regularity on documents over 20 years old is misplaced because a party has a compelling duty to establish his case by credible evidence. The Appellants contended that based on DW1 and DW2s denial of the genuineness and due execution of the deed of conveyance, the presumption of regularity of the deed has been questioned.

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They argued that Section 155 does not extend the presumption to cover the correctness of the content of the document and that evidence can be led to prove want of execution, relied on Section 128 of the Evidence Act, 2011. The Appellants therefore submitted that the Respondent was required to prove due execution in the circumstances, citing the cases of OSAWE V OSAWE (1991) 5 NWLR (PT 194) 710 @ 717, ADENIRAN V ALAO (1992) 2 NWLR (PT 223) 350, IDUNDUN v OKUMAGBA (1976) 9-10 SC 277, in proof of his submissions. The Appellants also submitted that the Court ought not to have placed reliance on Exhibits L, L1 and L2 as the documents have nothing to do with the subject matter in dispute. Finally, the Appellants submitted that it was not mandatory for the 2nd Appellant to appear in person to give evidence and the concern raised by the Court was unnecessary, cited ORUGBO V UNA (2002) FWLR (PT 127) 1024 SC.

The Respondent on the other hand submitted that the identity of the land was never in dispute as contended by the Appellants. Besides, the Respondent argued that the Appellants failed to raise an objection on the identity of the land when the Court made a

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visit to the subject matter of dispute. Thus, they contended that the issue of identifying the land in dispute cannot arise in view of the Court’s visit to the locus in quo, they referred to T.M ORUGBO V BULARA UNA & ORS (2002) FWLR (PT.127) 1024, CHIEF S.O. AWOYOOLU & ANOR V SUFIANU YUSUF ARO & ORS (2006) 18 WRN.

Furthermore, the Respondent submitted that she succeeded in proving her title to the land by the production of documents of title duly executed and authenticated. More so, the documents was produced from proper custody, and therefore is a presumption of favour of due execution in the case of documents 20 years old or more, referred to ADELAJA v FANOIKI (1990) 2 NWLR (PT. 130) 137, OYEBAMIJI V LAWANSON (2008) ALL FWLR (PT 438). The Respondent also argued that she tendered similar Deeds of Indenture (Exhibit L, L1 and L2) to show that Exhibit A was duly executed on behalf of the Kuyasi Awushe Family. The Respondent submitted that neither DW1 nor DW2 were among the executors of Exhibit A and they cannot rebut the presumption of due execution of the instrument. She argued that the only document tendered by the Appellants to rebut

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Exhibit A was Exhibit DF1 and that no value should be given to it because it is an unsigned document. She argued that the same set of people who signed Exhibit A in favour of the Respondent also signed Exhibit L, L1 and L2 in favour of the adjoining land owners and that the fact that Exhibit L, L1 and L2 were not challenged is proof of due execution of Exhibit A, referring to Section 123 of the Evidence Act. The Respondent submitted that since the burden of proof in civil cases is on a balance of probabilities, the Respondent has discharged the burden placed on her to be entitled to title, she relied on NSIEGBE V MGBEMENA (1996) 1 NWLR (PT 426) 607.

It was further submitted by the Respondent that having succeeded in her claim to title, she is entitled to damages for trespass. She therefore urged this Court not to upturn the decision of the lower Court in this regard, relied on OKOKO V DAKOLA (2006) 14 NWLR (PT 1000) 401 SC, ADELAJA V FANOIKI supra, LEADWAY ASSURANCE COMPANY LTD v ZECO NIGERIA LTD (2004) 4 SC (PT 1) 45, MATHEW ECHERE & ORS v CHRISTOPHER EZIRIKE & ORS (2006) 5 SC (PT 1) 65 in proof of her submissions.

The Appellants in

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reply contended that the failure of the Respondent is not only with the identification of the land but failure to ascertain the boundaries of the land with exactitude, referred to JOKOTOLA V AKWAKORO (2001) VOL 5 in JSC 17, EKPEMUPOLO V EDREMODA (2009) 8 NWLR (PT 142) 166 SC, EZUKWU V UKACHUKWU (2004) 17 NWLR (PT 902) 227, ATANDA V ILIASU (2013) 6 NWLR (PT 1351) 549. The Appellants also submitted that the reason for the visit to the locus in quo was for ascertaining the physical features improved on the land and this cannot replace the need for the Appellant to describe the land with certainty. With respect to the Court’s reliance in Exhibit L, L1 and L2, the Appellants contended that documentary evidence of unrelated land covering other persons who are not parties to the suit cannot be used to prove due execution of the land in dispute.

RESOLUTION
This issue is one challenging the evaluation of evidence carried out by the trial Court. The primary function of evaluation is settled. It is established by a long line of authorities that evaluation of evidence is the primary duty of the trial Court and unless this duty is not carried out as expected

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or where extraneous matters are allowed in and considered by the trial Court, an appellate Court would ordinarily not interfere, see CPC V INEC (2011) LPELR-8257 (SC) which held thus:
“The most important aspect of the duty of the Court in the evaluation of evidence is to decide where the scale preponderates by qualitative evidence. The Court must ensure that it holds the string or scale of justice evenly balanced between the parties so that justice may not only be done but must manifestly be seen to have been done. There is however a distinct difference between the role of a trial Court and that of an appellate Court in the area of evaluation of evidence. It is the trial Court which has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it, put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make necessary findings of fact flowing therefrom, apply the relevant law to the findings and come to a logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial Court because of its singular opportunity of hearing and

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watching the demeanour of witnesses as they testify and thus it is the Court best suited to assess their credibility. Where a trial Court makes a finding on the credibility of a witness, or appellate Court would not ordinarily interfere.”
A party challenging the evaluation done by the trial Court must of necessity establish that, that primary duty was not carried out or that it was carried in a manner inconsistent with the requirement of the law.

It is also settled that in a civil claim the standard of proof is on the balance, probabilities or preponderance of evidence. The burden is not static as is the case in criminal trials, here it oscillates and comes to rest on he who would lose if no evidence is further brought as required by the Evidence Act.

The claim before the trial Court was reproduced earlier in this judgment, it is basically a relief seeking a declaration of title to land and the 5 settled methods of proving title have been crystallized in the case, along line of cases, one of which is IDUNDUN V OKUMAGBA (1976) 9- 10 SC 227 as follows:
i. By traditional evidence;
ii. By Production of documents of title which must be

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duly authenticated;
iii. By exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the interference that the person is the true owner of the land;
iv. By acts of possession and enjoyment of the land; and
v. By 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.
It is trite that a claimant is expected to establish just one of the identified methods of establishing title to be able to succeed because each method is independent of the other. Furthermore, a claimant is expected to succeed on the strength of its case and not on the weakness of the case of the defendant, see ANUKAM V ANUKAM (2008) 5 NWLR (PT 1081) 455 @ 472.

The Respondent at trial chose to establish her title by way of production of documents of title and the law requires that such proof must proceed beyond tendering the documents to show the root of title, see LAWSON V AJIBULU (1997) LPELR – 1766 (SC).

The Appellants have made heavy weather on the identity of the land in dispute. It is

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trite that the burden is on the claimant to clearly identify and prove with certainty the land in dispute, see DIKE V OKOLOEDO (1999) 10 NWLR (PT.623) 359.

The identity of the land in dispute only comes into issue by the defendant raising it in the statement of defence. See HENRY ATUCHUKWU v GLORIA ADINDU (2011) LPELR -3821(CA) where the Court held:
It is much a feted legal stance by the Supreme Court that the identity of the land in dispute will be in issue where the defendant in his statement of defence specifically disputes the description of the land given in the Plaintiff’s statement of claim.” See also ADESINA V DAC ELECTRICAL CO. LTD (2007) ALL FWLR (PT. 369) 1279; AREMU V ADETORO (2007) 16 NWLR (PT.1069) 244 at 257.
However, where the identity of the land in dispute is known and evidence adduced by the parties are ad idem on the identity of the land in dispute, the fact that different names are ascribed to or that area where it is located is called by a different name is immaterial as long as the parties are referring to the same parcel of land. See CHUKWUEKE V OKORONKWO (1999) 1 NWLR (PT. 587) 410; MAKANJUOLA V BALOGUN (1989) 3 NWLR

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(PT. 108) 192 at 201 and AROMIRE V AWOYEMI (1972) 1 ALL NLR (PT. 1) 101 at 113. The trial Court found that the Respondent proved the identity of the land because the Appellants did not raise the issue of identity in their pleadings and DW1 & DW2 did not challenge the identity of the land because both sides referred to the land in dispute as No. 21/23 Oroleye Street, Opebi Village Onigbongbo Area of Ikeja LGA of Lagos State. In other words, both sides were on the same page on the location of the land in dispute.
The survey plan referred to the land as Plots 2 and 4 Block IX. Furthermore, the 2nd Appellant who claimed the land averred that he is the owner of the land known as 21/22 Oroleye Street, Opebi, Ikeja, see paragraph 4 and 5 of the 2nd Appellant’s statement of defence. In fact, the 2nd Appellant averred to a contradictory position with regards to the identity of the land. In paragraphs 4 and 5 he referred to the land with the same name as that identified by the Respondent and in the same breath, at paragraph 19, he averred that the land the Respondent is claiming is not the same as his land. In paragraph 20 he cited the same

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description as given by the Respondent in her statement of claim. That is clearly a contradiction on the pleadings which on its own neutralizes the case of the 2nd Appellant. The 2nd Appellant cannot blow hot and cold at the same time. Identity issue must arise on the pleadings in clear terms and therefore, the pleadings must present a straight case that is directly unequivocally challenging identity of the land. A party cannot say the land the claimant is claiming is his and turn round in the same breath to say the land being claimed is not my land. Pleadings are meant to be clear and concise statements of facts, it cannot be flurry but should be in a discernable form so as to give notice to the other side as to what to expect during trial. pleadings cannot be muddled up, it must be succinct, clear and concise statements of facts and needless to say that parties are bound by their pleadings. The Appellants, particularly the 2nd Appellant is bound by the pleadings which is even inconsistent, it approbates and reprobates at the same time. On the pleadings alone, the Appellants have lost the issue of identity, because an issue on identity is raised and

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determined on the pleadings and not from evidence given during trial.
In any case, upon trial at the lower Court, the evidence became quite clear that there was no identity crisis bordering on the land in dispute and the issue therefore cannot be raised on appeal when it should have been so contested in the pleadings and during trial. The stage for pleadings is gone. There was a visit to locus in quo where the land in dispute was clearly identified by both parties so where is the dispute arising from? The visit to locus in quo has put to rest the unsubstantiated dispute on the identity of the land in dispute.
The Appellants alleged that there was discrepancy between the reference to the land in Exhibit A- as Block IX Plot 2 and 4 while on Exhibit G it was referred to IX plot 2 and Exhibit F as Plots 2 and 4 of Block XI. Discrepancy must be material in order to defeat the claim of the claimant. The Court below found that reference to Block XI was not material enough when all other documents clearly identified the land in dispute and the parties too are so agreed. The important issue is that parties are agreed as to the identity of the

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land in dispute. The land is covered by a deed of assignment which has a plan attached to it and furthermore, the exact size of the land and other details are stated therein. I see no substance in the contention that the exact size and boundaries of the land must be clearly stated. The Respondent told the Court the land was fenced and she put mechanics in it. All these are particulars the Appellants should have made an issue at the trial Court. The 2nd Appellants did not contest the identity, size and relevant dimensions in his averments. From the evidence led in support of the positions of the parties, there is no issue of identity of the land in dispute. So the arguments of the Appellants here are untenable. To challenge Exhibit G which is the Survey Plan with respect to the land in dispute, the Appellants should have tendered another plan to show that Exhibit G was not relevant to the land it describes. It named the land as plot 2 but on ground it covers plot 4 as confirmed by other pieces of evidence. As long as the survey plan remains un-impeached, oral arguments cannot be used to discredit it particularly with regards to the size and location of the

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land, after all survey plans give technical details in degrees taken from a point designated on the master plan of the area as found in the Land Office.
From all the above, it is obvious that both parties are agreed on the identity of the land in dispute and I agree with the trial Court that identity of the land was not in issue in this case.

The next point contended by the Appellants relates to proof of execution of the instrument of conveyance, particularly as it relates to Exhibit A, the deed of debenture. The Appellants contended that the deed was not duly executed in that not all those authorized, signed the deed on behalf of the family. Trite to state, that both the Respondent as claimant and the 2nd Appellant are claiming from the same source of root of title. The Respondent’s documents of title are earlier in date as compared to the claims of the 2nd Appellant who does not have a deed over the land. Exhibit A was signed by Raji Adebiyi Asabiyi (the then Baale of Onigbongbo); Jinadu Badiaran; Alhaji Amusa Bamishebi Akerele and Muse Sadiku. The Appellants however contend that the authorized representatives should have been any four from

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the following: Chief Amida Akerele; Alhaju Taoridi Hassan; Chief Rasaki Yinusa; Alhaji Wasiu Akerele; Chief Hassan Kasumu; Alhaji Tahudeen Irawo; Chief Lateef Kadiri. None was called to testify in support and the witness is not one of the authorized represented. None of those alleged authorized representatives complained. The Respondent had been in possession for over 20 years.

Now, the law is settled that the execution of a deed must be established by evidence, unless that deed of conveyance is produced in circumstances giving rise to the presumption in favour of its due execution in that its execution is shown to be twenty years old or more at the date of the contract, see ENILOLOBO V ADEGBESAN (2001) 11 NWLR (PT.698) 611; JOHNSON V LAWANSON (1971) 1 ALL NLR 56; CARDOSO V DANIEL (1986) 1 ALL NLR (PT. 1) 101 AND OBAWOLE V WILLIAMS (1996) 10 NWLR (PT. 477) 146. It was made out by evidence before the Court that Exhibit A- a deed of conveyance, is over 20years old from the date of execution, it is dated 30th March, 1978 and was duly registered. The purchase receipt grounding the deed of conveyance is dated 20th December, 1977. A purchase receipt

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alone can give an equitable title. Both are more than 30 years old. Therefore, by Section 155 of the Evidence Act, 2011, Exhibit A will enjoy presumption of regularity in due execution and attestation, the section says:
“Where any document, purporting or proved to be 20years old or more is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
I agree with the Appellants that the presumption enures to the advantage of those who were duly mandated. It is a presumption of regularity which is rebuttable. However, the Appellants did not tender any document signed by those allegedly mandated to represent the family at the time Exhibit A was made. If no evidence is presented, the case of the Respondent will definitely stand.
Another point to be made is that the deed came from proper custody, it is a certified true copy from the Land

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Registry, so Section 156 of the Evidence Act has also been fully complied with as Exhibit A satisfies the law. The issue of custody cannot arise. Exhibit DF1- Family History of the vendor family was discountenanced by the trial Court for lacking necessary particulars to enure some credibility to it and therefore cannot impeach Exhibit A. It was neither dated nor signed and therefore is worthless and cannot have any weight. The Appellants point here is that those who signed were not authorized but admitted that two of them were authorized representatives. That is invariably alleging impersonation and or forgery without any materials to substantiate the allegation. The Respondent in her evidence told the Court about all the entreaties from the Baale and others asking her to let go the piece of land and the Appellants did not deny it. Clearly, the totality of the evidence gives credence to the claim of the Respondent.
Furthermore, the Respondent also showed that her neighbors had the same set of persons as representatives of the family of their vendor who signed their deeds of conveyance in Exhibits L, L1 and L2. These are for plots 10 & 12; 6 &

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8; and 14 & 16 respectively and were all sold about the same time in 1978. The deed of conveyance was prepared by the same counsel- Mr. Olaiya and there are no proceedings challenging those titles.
Neither are the Appellants disputing them. The Appellants are not contesting execution in Exhibit L; L1 and L2 family representation. They did not tender a deed executed at the same time by those they named as representatives of the family to challenge Exhibits L series. If there is nothing wrong with Exhibits L, L1, and 12, then Exhibit A cannot also be challenged by the Appellants as they were duly executed by family representatives at the same time. Flowing from above, I also find that Exhibit A transferred title to the Respondent and the Appellants have failed to impeach that, more so, it enjoys the presumption of regularity by law. It is also coming too late in the day, the title having been vested in the Respondent for over 30 days.
The Respondent also took possession and put mechanics on the land, the evidence is confirmed by the witnesses of the Appellant when they said they found persons on the land. The solicitor who also acted for

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the vendor’s family denied taking steps the 2nd Appellant averred he did. From the evidence by way of pictures at the commencement of discovery of the trespass and when trial ended, it is clear that the 2nd Appellant constructed buildings while the suit was going on. This was not rebutted. The 2nd Appellant does not have any registered deed of conveyance and he came into the land long after the Respondent. There are pieces of evidence strong enough to support the case of the Respondent.

It is trite to state that standard of proof is on the balance of probabilities and not proof beyond reasonable doubt and in this case, the case of the Respondent is stronger and weighs heavier than that of the Appellants. The findings of the Court below are unassailable and I hereby affirm same. I resolve this issue against the Appellants.

ISSUE TWO
Whether the award of damages in the sum of one Hundred million is not unreasonable having regards to the circumstances of this Case.

The Appellants submitted that the award of N100,000,000.00 (One Hundred Million Naira) as damages in favour of the Respondent is ridiculously high and unjustifiable. They

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urged the Court to interfere with the discretion of the lower Court in this instance as the lower Court applied a wrong principle of the law was without basis and failed to take into account whether there was any damage at all suffered by the Respondent.

However, the Respondent argued that having established trespass to land, she does not need to prove any loss before she can succeed for an order of damages, referring to MATHEW ECHERE & ORS V CHRISTOPHER EZIRIKE & ORS (2006) 5 SC (PT 1) 65. In any case, the Respondent argued that there was a printer’s error in the judgment in that it was written N100,000,000.00 in numbers but the wordings in bracket stated One Million Naira in words, she referred to BERLIET NIG LTD V KACHALLA (1995) 9 NWLR (PT 420) 478 and submitted that this error can be easily corrected without occasioning a miscarriage of justice.

RESOLUTION
Generally, an appellate Court is reluctant to interfere with the award of damages by a trial Court. There are however situations where an appellate Court would interfere with the award of damages by a trial Court and this has been settled in a plethora of judicial

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authorities. In the case of AHMED & ORS V CBN (2012) LPELR – 9341 (SC) the Court held:
Award of damages is an exercise of discretion by the trial Court. An appellate Court will not interfere with an award of damages by a trial Court unless it is made under certain peculiar circumstances which include-
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law or
3. Where the Court acted in disregard of applicable principles or
4. Where the Court acted in misapprehension of facts or
5. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
6. Where injustice will result if the appellant’s Court does not act or

7. Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages.”
See also the case of ELF V SILLO (1994) 6 NWLR (PT 350) 258, ODOGU V AG FEDERATION (1996) 6 NWLR (PT 456) 508, UBN PLC v NTUK (2003) 16 NWLR (PT 845) 183, NICON HOTELS LTD V NENE D.C LTD (2007) 13 NWLR (PT 1051) 237.

The

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Court below in entering judgment (pages 783- 784 of the record) stated thus:
“1. It is hereby declared that the land subject matter of this suit situate at No. 21/22 Oroleye Street Opebi Village Lagos belongs to Mr. Bisi Odubona (Nee Gbolade).
2. An order of perpetual injunction restraining the 2nd Defendant, his servants agents or any other persons(s) from further trespass on the claimants land or unlawfully making use of the same except with the consent of the claimant is hereby granted.
3. The sum of N100,000,000 (One Million Naira) only is awarded as damages for the trespass.
4. Cost of N200,000.00 is hereby awarded as cost for this action.”
The 3rd order is the basis of the second issue in this appeal. It is obvious that there was slip/error in the award of damages because the amount in words is different from the amount in figures. It is natural that human beings commit error, including judges because they are not angels but men thus the rule called Slip Rule. A slip rule connotes accidental slip or omission as clerical mistakes in a judgment or order which is capable of being amended even at times without notice to the

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other party. It is an error in expressing the manifest intention of the Court, see NWANA V FCDA (2007) LPELR- 2101 (SC); ASIYANBI & ORS V ADEDEJI (1996) NMLR 106.
The doctrine of slip rule is the power of amendment or correction of its records inherent in the jurisdiction of the Court and it is very wide but it can only be exercised when the justice of the case demands it, and when there is no miscarriage of justice on the other side. However, matters relating to the facts or law in the judgment itself cannot be a subject of review by the trial Court with a view to correcting it. The Court in OLUROTIMI V IGE (1993) 8 NWLR (PT. 311) 257 at 274 held thus:
The power of a judge to amend his judgment is limited only to where there is a clerical mistake in the judgment or order, or an error arising from accidental slip or omission. And the inherent power of the Court to vary its own orders relates to only where it is necessary to carry out its own meaning and to make meaning plain… The error or omission must be an error in expressing the manifest intention of the Court.”
The settled position is that not every error results in

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reversing a judgment. It is obvious that 3rd relief granted in the judgment reflects a slip or an error, this is clearly manifest from the obvious difference between amount in words and the amount in figure. More so, the claim was for N10,000,000.00 (Ten Million Naira) and not One Hundred Million naira. The Court therefore could not have granted what was not asked for in the claim. There was no need for the split hairs in making the issue look like it had a motive outside its being a simple error correctable by the same Court. It will most definitely not be in the interest of justice to set aside the judgment upon a mere judge’s technical slip which has not even been shown to occasion a miscarriage of justice, it is a slip that can be easily corrected, see JESSICA TRADING CO. LTD V BENDEL INS. CO. LTD (1996) 10 NWLR (PT. 476) 1; MORA V NWALUSI (1992) 2 SCNLR 73; OLADELE V AROMOLARAN II (1996) 6 NWLR (PT. 453) 180; ONAJOBI V OLANIPEKUN (1985) 4 SC (PT. 2) 156 at 162. Consequently, the sum of N100,000,000 is hereby corrected to read N1,000,000 (One Million Naira) only as damages.
The contention of the Appellants was based on the assumption

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that the Court below meant to award N100,000,000 as damages. However, it is now a clear case of slip/error which is correctable and which I have now corrected.

With respect to whether the award of damages is justifiable, it is settled that when trespass is established damages follow. Trespass was established against the 2nd Appellant alone, the Court below was of the opinion that the 1st Appellant is not a necessary party and that the Respondent failed to prove a case of trespass against the 1st Appellant. The judgment is therefore against the 2nd Appellant. Having committed trespass, he is liable in damages. To make it even worse, the 2nd Appellant continued with construction even as proceedings were going on in an attempt to arm twist the Court. The era of such blackmail is over. Courts will no longer be swayed by such attitudes as substantial justice is the ideal sought to be attached by all Courts of the land. The sum of N1,000,000.00 (One million Naira) awarded as damages is not in excess and therefore, the Court shall not interfere with the award. This issue is partially resolved in favour of the Appellant.

Flowing from the resolution of

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the two issues, the appeal lacks merit and is hereby dismissed. The judgment of the trial Court in suit No: ID/666/2005 delivered on the 10th of November, 2014 by HON. JUSTICE A.O. TAIWO is hereby affirmed and the slip in 3rd order on the judgment is corrected accordingly.

Cost of N200,000.00 against the Appellants in favour of the Respondent.

TIJJANI ABUBAKAR, J.C.A.: My learned Brother Yargata Byenchit Nimpar JCA, granted me the privilege of reading in draft the lead Judgment just rendered. I am in agreement with the reasoning and conclusion and therefore adopt the entire judgment as my own with nothing extra to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: In actions for declaration of title to land, where the identity of the disputed land is in issue; it is necessary to prove the identity of the land to which the claim relates. See EZEUDU vs. OBIAGWU (1986) 2 NWLR (PT 21) 208, FATUADE vs. ONWOAMANAM (1990) 2 NWLR (PT 132) 322 and OGUN vs. AKINYELU (2004) 18 NWLR (PT 905) 362 or (2004) LPELR (2319) 1 at 22 – 23. Where however the land is well known to the parties or where an issue has not

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been made in the pleadings as to the identity of the land, there will be no need to lead evidence to specifically prove the identity of the disputed land: ANYANWU vs. UZOWUAKA (2009) 13 NWLR (PT 1159) 445 at 476 and BACHIRAWA vs. ABDULLAHI (2016) LPELR (41170) 1 at 20- 21. On the diacritical facts of this matter, the disputed land was well known to the parties, thus obviating the need to lead evidence in proof of the identity of the land.

It is for the foregoing reason and the more elaborate reasoning and conclusion in the leading judgment of my learned brother, Yargata Byenchit Nimpar, JCA, which I was privileged to read in draft, that I avow my concurrence that there is no merit in this appeal. Accordingly, I also join in dismissing the same and I abide by the consequential orders made in the lead judgment.

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Appearances:

A. T. OMAGHOMI For Appellant(s)

OLAGBADE BENSON with him, T. M. KESHINRO –For Respondent(s)

 

Appearances

A. T. OMAGHOMI For Appellant

 

AND

OLAGBADE BENSON with him, T. M. KESHINRO -For Respondent