MRS. ODEDELE & ANOR V. ALHAJA FALILAT AKANKE (2012)

MRS. ODEDELE & ANOR V. ALHAJA FALILAT AKANKE

(2012)LCN/5547(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of July, 2012

CA/I/78/2010

RATIO

LAND LAW: EFFECT OF MAKING A CLAIM FOR TRESPASS AND INJUNCTION OVER A LAND

Where a plaintiff just as the respondent in this appeal, makes a claim for trespass and injunction over a parcel of land, he has by his claim put his title in issue because his claim already presupposes that he is the owner of the land in dispute or has had, prior to the trespass complained of, exclusive possession of it. See Amobi v. Amobi (1996) 8 NWLR (469) 678. For him to succeed he has to prove a better title to the land in dispute. He also has to succeed on the strength of his own case and not on the weakness or absence of the defence. PER ADZIRA GANA MSHELIA, J.C.A.

LAND LAW: WHAT SHOULD A CLAIM OF TITLE BE MADE TO

It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought, must be sufficiently identified. See the case of Ezeokoke & Sons v. Uga & Sons (1962) 1 ANLR (pt, 1) 484. In other words, in a claim of title, it must be made to a defined area, with certainty. See Audu Rufai V. Ricketts & 5 Ors (1934) 2 WACA 95.

It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty. The test being whether a surveyor can from the record produce an accurate plan. See cases of Kwadzo v. Adjei (1994) 10 WACA 274; Chief Are v. Chief Obaloro (1968) 238; Araba V. Asanlu (1980) 5-7 SC 78; Okerie v. Udom (1960) 5 FSC 162 and Oke & Ors V. Eke & Ors (1982) 12 SC 218 at 232. PER ADZIRA GANA MSHELIA, J.C.A.

LAND LAW: WAYS OF ESTABLISHING THE IDENTITY OF LAND

It is now well settled that there are two recognised ways of establishing the identity of the land claimed by a plaintiff. These are:-

By filing a survey plan showing the boundaries.
By describing the land in his pleadings in such a clear manner that a surveyor could from it draw an accurate survey plan.

See Ijade v. Ogunyemi (1996) 9 NWLR (pt. 470) 17 at 28 paras D-G; Onabe v. Dabang (1997) 7 NWLR (pt. 514) 683 at 694 – 695 and Olokotintin v. Sarumi (1997 1 NWLR (pt. 480) 222 at 232 paras B-D. PER ADZIRA GANA MSHELIA, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH FINDINGS OF FACT MADE BY THE LOWER COURT

An appellate court will not lightly interfere with findings of fact of the court below unless such findings are shown to be perverse or not the result of a proper exercise of discretion. Ogundipe V. Awe (1988) 1 NWLR (pt. 68) 118, Where the issue of evaluation of facts do not depend entirely on the credibility of a witness but where proper inference is to be drawn from the facts proved, the appellate court is in a good position as the court of trial, and will draw the proper inference naturally flowing from the facts so proved but will not reverse the finding of the court merely because it would have found differently. Asami Balogun v. Alimi Agboola (1974) 1 All NLR (pt. 2) 66. PER ADZIRA GANA MSHELIA, J.C.A.

APPEAL: ON WHOM LIES THE ONUS THAT THE DECISION ON APPEAL WAS WRONG

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. MRS. ODEDELE
2. OLADOKUN OLANIYAN Appellant(s)

AND

ALHAJA FALILAT AKANKE Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Akinteye J, Of the High Court of Justice Ibadan delivered on 27th April, 2007. The respondent who was the plaintiff at the lower court claimed against the defendants now appellants jointly and severally as per her statement of claim dated 10.12.2002 and filed 12.12.2002 as follows:-
(i) The sum of N2, 200,000.00 (Two million, Two hundred thousand Naira) against the defendants jointly and severally being special and general damages for trespass committed and still being committed on the plaintiff’s land situate, lying and being at Ogbagba village, off Olorunda Road, Akobo Area, Ibadan.
PARTICULARS
(a) Special Damages – N1, 800.000
(b) General Damages – N400.0000
(ii) A perpetual injunction restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from committing further acts of trespass on the plaintiff’s said land.
The case for the respondent is that she bought the plot of land in dispute which formed part of the two acre land Alhaji Oyebanji (PW1) had earlier bought from the 2nd Defendant and other members of 2nd Defendant’s family. Respondent had been in possession of the land for 28 years as at the institution of the suit until sometimes in the year 2002 when the 2nd Defendant purportedly sold the land in dispute to the 1st Defendant. As at this time, the respondent has on the land in dispute a developing structure of 4 flats of 3 bedrooms each which was at lintel level, Respondent alleged she was in possession until the 1st appellant in 2002 came onto the land to disturb her possession by building another structure different from the one she had hitherto begun on the land.
The case for the appellant on the other hand is that the land in dispute which formed part of a larger land belonged to the 2nd appellant’s family originally and that their family ownership was further confirmed by the High Court judgment in suit No 1/287/06 tendered as Exhibit C. Appellant’s family sold some portion of land measuring two acres, to the respondent’s alleged predecessor-in-title, the PW1 but the land so sold to him was at Eleni Osoba village, along Olorunda-Abaa Road, Ibadan. That the 2nd Appellant’s family does not extend to Ogbagba village, and the land sold to PW1 does not extend to the land in dispute. The land in dispute was one of the plots of land from which trespassers were dislodged.
After pleadings were filed, amended and exchanged between parties, trial commenced, Plaintiff testified and called 3 more witnesses while the Defendants testified and called 2 witnesses for their defence. At the close of defence case written addresses were filed, exchanged and subsequently adopted by respective counsel. The learned trial judge Akinteye J. in a considered judgment delivered on 27th April, 2007 granted the reliefs claimed by the respondent.
Appellants were not satisfied with the judgment and so they filed their Notice of Appeal dated 7.01.10 containing six (6) grounds of appeal.
Briefs of argument were filed, exchanged and adopted by respective counsel.
In the appellants’ brief of argument filed on 12/11/10, they distilled sole issue for determination in this appeal to wit:
“Whether having regard to admissible evidence before the court, the identity of the land in dispute was sufficiently established to justify the grant of the respondent’s claim by the learned trial judge”.
The respondent also in her Brief of Argument filed on 24.7.11 but deemed properly filed on 14.4.11, distilled two issues for determination thus:
(i) Whether from the pleadings and evidence on record, the identity of the land in dispute is not well known to the parties and if the land in dispute does not form part of the land sold to PW1 (plaintiff’s vendor) vide Exhibit E. Covers Grounds 1 – 5.
(ii) Whether the trial court rightly evaluated the entire evidence on record before coming to the conclusion that the plaintiff/respondent is entitled to the land in dispute and afortiori entitled to her claims before the Court. Covers ground 6.
I have examined the issues formulated by parties. Appellants issue No 1 and respondents issue No 1 are similar as such I will adopt the respondent’s issues in determining this appeal.
The appellant’s complaint under issue 1 relates to the identity of the land in dispute. While arguing this issue appellant’s counsel submitted that it is now very well settled that pleadings is the pivot, the bedrock of evidence and any evidence led at trial which cannot be founded on a pleaded fact goes to no issue. Learned counsel referred to paragraphs 3, 4 and 9 of the statement of claim, paragraphs 2 and 3 of the reply to the statement of Defence as well as paragraphs 3, 4, 5, 6, 7, 9, 10, 11, 14, 19, 20, 22, 23, 25, 26 and 27 of the Defendants Amended Statement of Defence and contended that the identity of the land has been made the only crux of dispute. Reliance was placed on Olaoti v. Balogun (1996) 4 NWLR (pt. 440) 44 at 52 paras F-G, It was submitted that in all cases, the onus of establishing the identity of a land in dispute with all certainty and accuracy of boundaries, lies on the plaintiff. See Olaoti V. Balogun (supra) at 52 paras G-H. Learned counsel submitted that where a plaintiff, as the respondent in this appeal, makes a claim for trespass and injunction over a parcel of land, he has by his claim put his title in issue because his claim already presupposes that he is the owner of the land in dispute or has had, prior to the trespass complained of, exclusive possession of it. Reliance was placed on Amobi v. Amobi (1996) 8 NWLR (pt. 469) 678. That where a plaintiff fails to prove the boundaries/identity of the land claimed by him, his action is liable to be dismissed. See Olaoti v. Balogun (supra) at 53 paras B-C.
Learned counsel further contended that there are two ways of establishing the identity of the land claimed by a plaintiff. They are:-
(a) By filing a survey plan showing the boundaries; or
(b) By describing the boundaries in the pleadings.
Reliance was placed on Ijade v. Ogunyemi (1996) 9 NWLR (pt. 470) 17 at 28 paras D-E; Onabe v. Debang (1997) 7 NWLR (514) 683 at 694-695 and olokotintin v. Sarumi (1997) 1 NWLR (pt. 480) 22 at 232 Pans B-D.
Counsel submitted that where parties to a land in dispute are not ad idem on the identity of the land, there is a huge burden on the plaintiff to prove the identity of the land. See Salami vs. Gbodoolu (1997) 4 NWLR (pt. 449) 277 at 285 paras F-G. Learned counsel referred to the description of the land in dispute as pleaded by both parties and the evidence given in support of same. Learned counsel contended that as could be seen from the pleadings and evidence of the relevant witnesses it is not that the parties call the same land by different names but that they have in mind two different locations entirely. That the finding of the learned trial Judge that parties are aware of the land being talked about is not only incorrect but misleading because parties are not agreed as to the location. It was further submitted that only PW1, PW2 and DW1 could say that the land in dispute was part of the two uncontested acres which PW1 bought from the family of the PW2 and DW1. That none of these witnesses identified it as part of the two acres. Counsel referred to the survey plans tendered and submitted that what is glaringly missing in this case is the survey plan of the undisputed acres of land which 2nd appellant’s family sold to PW1. It was not pleaded. That failure to tender survey plan of the two acres of land is fatal to the respondent’s case. That plaintiff ought to have also tendered a composite plan. Reliance was placed on Bankole v. Pelu (1991) 8 NWLR (pt. 211) 523 at 550 and Nwadiogbu v. Nnadozie (2001) 12 NWLR (pt. 727) 375. Learned counsel contended that as the identity of the land sold to PW1 is disputed, the respondent has a duty not only to proof the identity of the land allegedly sold to her, but that of her vendor from which she derived her title. That respondent failed to plead what became of the remainder of the two parcels of land after a plot had been sold to her and she failed to give evidence of what happened to the remainder. It is trite that material facts ought be pleaded and evidence led on any matter not pleaded goes to no issue and ought to discountenanced. See Ojiako v. Ewuru (1995) 9 NWLR (pt. 20) 460 at 470. Counsel maintained that the holding of the learned trial judge that the land in dispute forms part of Exhibit ‘E’ sold to PW1 in January 1975 is without any evidentiary basis especially against the background of the evidence of the 2nd appellant as PW1 that the land sold to Oyebanji (PW1) in exhibit E is not the same as the land in Exhibit ‘C’. Counsel urged the court to hold that respondent failed woefully to discharge the burden placed on her at the trial court.
The respondent in reply referred to paragraph 3 of the statement of claim and paragraph 2 of the Plaintiff’s Amended Reply to Amended Statement of defence, and contended that appellants admitted the description of the land stated in the said paragraphs. Reference was also made to paragraph 3 of the amended statement of defence. It was submitted that by the pleadings referred to there can be no confusion about the identity of the land, as parties are ad-idem, on the description of the land sold to PW1 Oyebanji Alagbe Plaintiff’s/Respondent’s vendor. What is admitted needs no further proof? Reliance was placed on Ezinwa v. Aga (2004) 3 NWLR (pt. 861) 431 at 458. Learned counsel submitted that from the various pleadings highlighted, it could be seen that appellants agree that the land sold to PW1 (Plaintiff’s vendor) is at Eleni Oseba, along Olorunda Abaa Road Ibadan. That respondent and her witnesses were unequivocal in their description of the land in dispute. See pages 16 to 17 of the record. It was submitted that the averment in paragraph 22 of the amended statement of defence showed that appellants have set up a different case from the plaintiff and so the onus is on them to adduce evidence in support of their assertion. That the burden of proof lies on the party who would fail if no evidence at all were given on either side. See Ezinwa v. Agu Supra at 449, Learned counsel maintained that 2nd appellant gave unequivocal evidence that the land in dispute is part of the land litigated upon in 1986. That the description of the land in dispute in Exhibit C, D, D1 and D2 is at Eleni-Oseba village, along Olorunda Abaa Road Bashorun Ibadan. There was nowhere in the Exhibits admitted where the land litigated upon was described as Omolayo Avenue/Road. That it was on Exhibits C, D, D1 and D2 that 2nd Appellant relied upon to prove his title to the land in dispute in this present case. That appellant’s assertion on their pleadings contradicts their evidence on trial.
Learned counsel further submitted that the burden of proving the land in dispute is not part of the land in Exhibit ‘C’ rests squarely on the appellants who asserted same and thus they have failed to do. Counsel urged the court to hold that the land in dispute is well known to both parties. Reliance was placed on Osakwe Iwano V. Guedo Pleli (1990) 5 NWLR (pt. 149) 126 and Fatuade v. Onwoamanam (1990) 2 NWLR (pt. 132) 132, 322 at 329. Counsel submitted that Respondent by paragraph 1 of amended reply to the amendment of defence affirmed that the land in dispute which was sold to her forms part of the 2 acre land, sold to PW1. In response to the argument of appellant’s counsel that failure by Respondent to tender the PW1’s survey plan is detrimental to Respondent’s case, counsel submitted that PW1, PW2 and PW3 gave unchallenged evidence that the land in dispute is part of the two acre land sold to PW1 by the 2nd Defendant’s family. In determining whether the averment in a particular paragraph of the statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire pleadings as a whole. Reliance was placed on Joe I.G.A V. Ezekiel Amakiri (1976) 11 SC page 11 (SC) page 1a at 11-17, Counsel referred to the two ways required for establishing identity of land in dispute. That plaintiff/Respondent clearly discharged the burden by tendering her survey plan Exhibit ‘B’ as being the land in dispute. That the argument of appellants’ counsel that the failure of Respondent to file composite plan to show exact boundaries of her land is not tenable. It was further argued that the land in dispute does not fall within the land litigated upon in Exhibit C. Counsel urged the court to hold that the land in dispute forms part of the two acre land sold to PW1 (Plaintiff’s vendor) and resolve this issue in favour of the Respondent.
The respondent’s claims before the trial court were for damages for alleged trespass committed by the appellants and perpetual injunction restraining them from committing further alleged trespass. Where a plaintiff just as the respondent in this appeal, makes a claim for trespass and injunction over a parcel of land, he has by his claim put his title in issue because his claim already presupposes that he is the owner of the land in dispute or has had, prior to the trespass complained of, exclusive possession of it. See Amobi v. Amobi (1996) 8 NWLR (469) 678. For him to succeed he has to prove a better title to the land in dispute. He also has to succeed on the strength of his own case and not on the weakness or absence of the defence.

It is now well settled that there are two recognised ways of establishing the identity of the land claimed by a plaintiff. These are:-
a. By filing a survey plan showing the boundaries.
b. By describing the land in his pleadings in such a clear manner that a surveyor could from it draw an accurate survey plan.
See Ijade v. Ogunyemi (1996) 9 NWLR (pt. 470) 17 at 28 paras D-G; Onabe v. Dabang (1997) 7 NWLR (pt. 514) 683 at 694 – 695 and Olokotintin v. Sarumi (1997 1 NWLR (pt. 480) 222 at 232 paras B-D.

The question now is whether from the pleadings and evidence adduced plaintiff /Respondent clearly identified the land in dispute. It is the case of the Plaintiff/Respondent that PW1 bought 2 acres of land from 2nd Defendant’s family before he sold the plot of land to her. While the case of the 2nd Defendant is that his family sold 2 acres of land to PW1, but claimed that the land in dispute is not within the 2 acres of land sold to the Plaintiff.
In paragraph 3 of the statement of claim page 5 of the record Plaintiff/Respondent avers as follows:-
“The Plaintiff bought the land in dispute situate and being at Eleni, Ogbagba village Area, Akobi, off Olorunda Road, Ibadan under native law and custom from Alhaji Oyebamiji Akagbe who had himself earlier bought a large piece of land including the land in dispute from the 2nd Defendant’s family for the sum of N6, 000.00.”
Plaintiff/ Respondent further averred in paragraph 2 of the amended reply to the amended statement of defence thus:-
“The Plaintiff in reaction to paragraph 3, 4 and 5 of the statement of defence states that as at the time the 2nd Defendant’s family sold land to Oyebamiji Alagbe, the Plaintiff’s vendor, the whole area was commonly called Eleni Oseba, Ogbagba Village Area, Olorunda, Abaa Road, Akobo, Ibadan.” See page 55 of the record.
Appellants admitted the description of the land in dispute averred in paragraph 3 of their Amended Statement of Defence. Paragraph 3 appearing at page 12 of the record read as follows:-
“The 2nd Defendant avers that the land sold to Oyebamiyi, Alagbe is at Eleni Oseba village, along Olorunda – Abaa Road, Ibadan.”
Having identified the relevant portion of the pleadings I will now examine the evidence adduced in support of the pleaded facts. PW1 who sold the land in dispute to Plaintiff/Respondent stated in his testimonies that the place where the land is situate is known as Eleni – Oseba, Eleni Osulele. It is also known as Aroyinogun. Respondent who testified as PW4 described the plot of land she bought from PW1 as situate at Akobo Olorunda – Abaa, Ibadan. She also tendered a survey plan exhibit ‘B’. She also identified Exhibits ‘A’ and ‘A1’, the purchase receipt and agreement. PW2 stated that the land they sold to PW1 is situate at Aroyinogun, which is not far from Eleni Oseba Village. The area of land is also known as Ogbagba in the olden days. The witness further stated that apart from the 2 acres of land sold to PW1 they did not sell any parcel of land to him again in that area.
DW1 (2nd defendant) on the other hand stated in evidence that his family sold 2 acres of land to PW1 which is situate at Road 4, Omolayo Avenue Akobo at Eleni Oseba village and that apart no other land was sold to PW1. DW3 (1st defendant) described the land she purchased from DW1 (2nd defendant) as situate at Road 2, Akobo Area, Omolayo, Ibadan. A survey plan was also admitted as exhibit ‘G’. As rightly observed by the learned trial Judge the location of the land is called several names as pleaded and given in evidence. It is apparent that parties are not misled by the name; they all know the land talked about.
It is trite that where the parties from the evidence are clear as to the identity of the land in dispute the fact that different names are given it or the area it is located cannot affect the case. See Osakiwe Iwuno V. Gueda Dieli (1990) 5 NWLR (pt. 149) at 126 and Osazuwa v. Isibor (2004) 3 NWLR (pt. 859) 16. In Assam V. Okposin (2007) FWLR (pt. 56) 630 at 640 paras B-C this court observed as follows:-
“in respect of the identity of the land in dispute …, the true identity of the land does not depend on the names that the parties chose to call them and that the criteria for knowing the identity of the land is by ascertaining its boundaries distinctive features and location of the land as has been established by pleadings and credible evidence.”

The 2nd Appellant gave unequivocal evidence that the land in dispute is part of the land litigated upon in 1986, See page 26 of the record lines 2-3 and exhibits ‘C’, ‘D’, D1, and D2 respectively. The learned trial Judge rightly found as a fact that the land in dispute is part of the 2 acres of land sold by 2nd Defendant’s family to PW1. I agree with the Respondent’s Counsel that the failure to tender PW1’s survey plan is not detrimental to Respondent’s case. PW1, PW2 and PW3 gave unchallenged evidence that the land in dispute is part of the two acre land sold to PW1 by the 2nd defendant’s family.
Similarly the argument of Appellant’s counsel that respondent, ought to have filed a composite plan to show the exact boundaries of her land is not tenable. As rightly pointed out by respondent’s counsel the boundaries in Exhibit, D3 corresponds with the boundaries in exhibit E and Exhibit D3 shows the land litigated upon was verged blue. PW2 who is 2nd Applicant’s brother confirmed that portions of the land litigated upon has been sold before the suit in 1986 commenced and the said land sold to PW1 forms part of the land litigated upon in 1986 suit (Exhibit C). As earlier stated the location of the land is known to the parties. With the available evidence on record the failure of the respondent to file composite plan is not fatal to her case.
From the available evidence on record it is my humble view that respondent has established with definitive certainty the identity of the land in dispute. Issue 1 is accordingly resolved against the Appellant.

Respondent’s Issue 2 is whether the trial court rightly evaluated the entire evidence on record before coming to the conclusion that the plaintiff/Respondent is entitled to the land in dispute and afortiori entitled to her claims before the court. Covers ground 6.
Respondent’s Counsel submitted in the brief of argument that the trial court rightly evaluated the evidence of the parties as borne out by their pleadings before giving Judgment to the Respondent. It was submitted that the learned trial Judge made findings that the land in dispute falls within exhibit E (Plaintiff’s vendor’s land) which also falls within Exhibit D (the Dispute Plan used in suit No 1/287/86 – (Exhibit C).
The learned trial Judge also found that the land sold to 1st Appellant (1st Defendant) from exhibits F and F1 is at Road 2, Omolayo Avenue, Akobo Area, Ibadan. 1st Appellant did not plead Road 2 Omolayo Avenue, so the learned trial Judge discountenanced the contents of Exhibit F and F1 as facts contained therein were not pleaded. That Exhibits ‘G’ and ‘G1’ the building plan and survey plan tendered by the 1st Appellant bears names of persons not parties to the case and so same were discountenanced by the court. It was further submitted that although the Appellants denied the existence of respondent’s uncompleted building the court made finding that the respondent has a building on the land in dispute by relying on the evidence of PW2, PW4 and DW4 that the above pieces of evidence constitute acts of possession on the respondent’s part. Counsel urged the Court to hold that the learned trial Judge properly evaluated evidence called by each party and ascribed probative value to evidence called on each side before coming to his conclusion and so the Judgment ought not to be disturbed. Reliance was placed on Ajibulu V. Ajayi (2004) 11 NWLR (Pt. 885) 458 at 476-477 paras H-B, Gidado v. Lowgan (2004) 10 NWLR (pt. 881) page 374 at 388 paras A-B; Adeniran v. Ashabi (2004) 2 NWLR (pt. 857) 375 at 403, 404 paras D-E and Sokwo v. Kpongbo (2003) 2 NWLR (pt. 803 111 at 152.
In the Appellant’s reply brief of argument, it was submitted that DW1 never admitted that the land in dispute forms part of the land in exhibit E as such the principle in Adeniran V. Ashabi (2004) 2 NWLR (pt. 857) 375 cannot apply. It was also argued that PW2 did not state in his testimony that there was uncompleted property on the land in dispute built by the respondent. That since the appellants have denied the existence of the building the burden is on the respondent to adduce further evidence by calling the bricklayers who allegedly built such uncompleted property for the respondent. The respondent failed to adduce the further evidence required to substantiate her claim. Counsel urged the court to disturb the finding of fact of the trial court which was not based on cogent and admissible evidence. Reliance was placed on Ejabutor V. Osta (1990) 5 NWLR (Pt. 148) 1 at 15 paras A-D.
It is not in dispute that the 2nd defendant/3rd Appellant’s family was the original owner of the land in dispute. It is the case of the plaintiff/Respondent that PW1 bought 2 acres of land from 2nd defendant’s family before he sold the plot of land to the respondent. While the case of the 2nd defendant is that his family sold 2 acres of land to pW1 but claimed that the land in dispute is not within the 2 acres of land sold to the respondent. The respondent in proof of her claim tendered the purchase receipt dated 7/2/78, sale agreement, survey plan and building plan all tendered and marked as exhibits ‘A’, ‘A1’, ‘B’ and ‘B1’ respectively. PW1 confirmed that he purchased 2 acres of land from DW1’s family and sold portion of it to the respondent in 1978. PW2 who witnessed the sale also gave evidence. 1st appellant who testified as DW4 claimed in her evidence that the plot of land was sold to her by DW1 (2nd defendant), 1st appellant tendered Exhibits F and F1 as the receipts given to her after purchasing the land in 2001. In exhibits F and F1 the plot of land said to have been sold to her is described as situate at Aroyinogun layout, road 2, Omolayo Avenue, Akobo Area, Ibadan. The learned trial Judge outrightly discountenanced this piece of evidence as having not been pleaded. 1st appellant also tendered survey plan and building plan marked exhibits ‘G’ and ‘G1’ but same were also discountenanced because they bear names of persons not parties to this suit. In other words, the documents were not prepared in the name of the 1st appellant so it has no connection with exhibits F and F1.
It is in evidence that DW1 on behalf of his family obtained judgment against Asalari family on the 30th of June 1987 as shown in exhibit ‘C’. According to the learned trial judge’s finding under issue 1 the land sold to the respondent by, PW1 forms part of exhibit ‘E’ sold to PW1 in 7975. That exhibit ‘C’ of 1986 cannot be used to oust the ownership of her plot of land since DW1’s family interest has been divested from the land in dispute. The trial judge further observed that PW1 was not made a party to the suit and it is not denied that DW1’s family sold 2 acres of land to him. To further support the claim of the respondent that she was in possession of the land in dispute, she testified that at the time of the institution of the suit her building has reached decking level. PW1 stated in his testimony that after sale of the land to respondent he did not see her again because she has a structure up to lintel level. PW3 confirmed in his testimony that respondent’s building had reached lintel level when he visited the place or site and met some building materials deposited on the land in dispute which he later knew were put there by 1st appellant. DW4 admitted that respondent’s house was 3 houses away from his house but did not know 1st appellant as his neighbour at Akobo.
On the issue of possession the learned trial judge at page 138 of the record lines 4-16 had this to say:-
“It is my respectful view based on the evidence before the court that the plaintiff was in possession of her plot of land and, indeed had a structure on it. I therefore believe the evidence of PW3 and PW4 on this. I don’t believe the evidence of the defendants that at the time the 2nd defendant sold the plot of land to the 1st Defendant, the land was a virgin land. I believe the 2nd Defendant sold the plot of land to the 2st Defendant under wrong notion that he could do so because of the judgment obtained against Asalari family by which other persons on the land were re-purchasing their land from his family. It is therefore my respectful view that trespass had been committed by the 1st Defendant on plaintiff’s land.”
Where a plaintiff shows by evidence that he is in prior possession of disputed land, he can successfully protect his possession by action against the whole world except a person who can show a better title. See Omidiran V. Owolabi (1994) 6 NWLR (pt.350) 367 at 376 para F. In the instant case respondent had proved by credible evidence that she was in prior possession of the disputed land. Appellants have failed to show/ establish that they have a better title to the land in dispute.

In a civil case, the proper approach to evidence called by both sides is to ask the question on which side does the weight of evidence lie? This is because proof in civil cases is on balance of probabilities. In the assessment of evidence on any particular issue, evidence called by each party ought to be put on either side of the imaginary scale and weighed together. Whichever out-weigh the other in terms of probative value should be accepted. Magaji v. Odofin (1978) 4 SC 97 at 93.

I have considered the evaluation which the learned trial court made in the judgment on the evidence placed before it, oral and documentary, in the light of the pleadings of the parties. From the totality of the evidence adduced it is my considered view that the trial court properly evaluated the evidence called by each party and ascribed probative value to the evidence called on each side before giving judgment to the respondent. The findings are not shown to be unreasonable or perverse as such this Court has no cause to interfere.

It is the law that the onus is on the appellant to satisfy the appellate court that the decision on appeal was wrong. If he fails to do this the decision will be allowed to stand. See Akinloye V. Eyiyola (1968) NWLR 92 at 95; Obisanya v. Nnoko (1974) 6 SC 69 at 80; Woluchem v. Gudi (1981) 5 SC 291; Obudo v. Ogba (1987) 2 NWLR (pt. 54) 1 and Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 352 at 390. In the instant case appellants have failed to satisfy the court that the decision on appeal was wrong. The decision is therefore not against the weight of evidence. Accordingly, issue 2 is resolved in favour of the respondent.

Finally, with the resolution of the two issues against the appellant, his appeal fails as same is devoid of merit. I accordingly hereby dismiss it. The judgment of the High Court of Justice Ibadan delivered by Akinteye J. on 27th April, 2007 is hereby affirmed. I assess the cost of this appeal at N30, 000.00 which I hereby award in favour of the respondent against the appellants.

MODUPE FASANMI, J.C.A.: I have had the privilege of reading in advance the judgment prepared by my learned brother Mshelia J.C.A.
My learned brother has exhaustively considered all the issues raised for determination in the appeal. I have nothing more to add. I adopt same as mine.
The appeal fails and it is hereby dismissed. I abide by the consequential orders contained therein inclusive of cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read before now the succinct judgment prepared by my learned brother, Mshelia, J.C.A., with which I am in agreement and adopt same as mine with noting useful to add.
I too find no, merit in the appeal. I dismiss it and affirm the judgment of the court below with N30, 000 costs in favor of the respondent against the appellants.

Appearances

Adewale Adegoke with Y.M. Oluwatuyi (miss) and E.A. Bamisile (miss)For Appellant

AND

F.B. Aladeniyi with A.R Ehinmowo (miss)For Respondent