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MADAM ADERIN ADEKANMBI MADAM LIMOTA AJIBOLA MR. KASUMU ADESOKAN MR. OYELAKIN ADIO MR. SALAMI ADEKANMBI (FOR THEMSELVES AND ON BEHALF OF BELLO ADEKANMBI FAMILY) V. ADEBISI JANGBON ASIATA JANGBON

(2006) JELR 56073 (CA)

Court of Appeal  •  CA/1/236/2003  •  1 Jun 2006  •  Nigeria

Coram
JOHN AFOLABI FABIYI JCA (Presided and Read the Lead Judgment) AMINA ADAMU AUGIE JCA GETRUDE IFUNANYA UDOM-AZOGU JCA

Appearances
A. Agbaje Esq. - for the Appellants. -*- No counsel appeared for the Respondents. -*- FABIYI JCA: This is an appeal against the judgment delivered byArasi J A while sittingat the High Court of Justice, Ibadan, Oyo State of Nigeria on the 21st day of March, 2003. The learned trialJudge dismissed the appellants’ claims in their entirety. -*- The claims put up by the appellants as plaintiffs at the trial court can -*- be found in paragraph 16 of the further amended statement of claim at page B -*- 19 of the record of appeal. It reads as follows: -*- “ Whereof the plaintiffs’claim against the defendants as follows: -*- Deemed customary right of occupancy over that farmland known as Akamo-Ekun in Akinyele Local Government Area of Ibadan. Perpetual injunction restraining the defendants, their C -*- servants, agents, privies oranyone claimingthrough them from committing further acts of trespass on the land in dispute. -*- Special damages of N300,000.00. General damages of N10,000.00.” D -*- Upon the exchange of pleadings, each side of the divide called four witnesses. The evidence adduced by the plaintiffs point to the direction that Akamo Ekun, their ancestor, was granted a vast area of land known as Igbo Owe by Fijabi the son of Babalola who was granted same by Basorun -*- Ogunmola after conquest. The plaintiffs maintained that their ancestor built E -*- a house on the land and farmed thereon until his death. The land devolved -*- on his son, Bello Adekanmbi who grew food crops like yams, cassava, maize and plaintain as well as cash crops like cocoa, kola nuts and palm trees on the land. The plaintiffs also claimed that the defendants entered the land and cut down some palm trees. -*- The defendants, on their part, testified that the land in dispute was F -*- originally settled upon by their ancestor- Jangbon. They claimed ownership of the surrounding lands at Jangbon village. They maintained that their ancestor, Jangbon, farmed and hunted on the land and gave some portions to tenants including the plaintiffs’ancestors. -*- The defendants maintained that after the death of Jangbon, the land G -*- devolved on his descendants who exercised various acts of ownership over the land until same devolved on the present defendants. The defendants denied cutting down the palm trees of the plaintiffs. -*- The learned trial Judge was adequately addressed by learned counsel -*- to the parties. He applied the law to the facts garnered by him to the best of H -*- his ability. In his considered judgment handed out on 21 March, 2003, the -*- plaintiffs’claims were dismissed in their entirety. They felt unhappy with the stance posed by the learned trial Judge and have appealed to this court. -*- Their notice of appeal dated 12th June, 2003 was accompanied by seven grounds of appeal. The reliefs sought from this court in the alternative read as follows. -*- “An order setting aside the judgment of the High Court and granting the order of injunction prayed for in the 3rd leg. -*- An order directinga retrial of the case before another Judge.” -*- The three issues postulated on behalf of the appellants for an adequate determination of the appeal read as follows: -*- “(1) Whether or not the learned trial Judge wrongly evaluated the -*- evidence before him and failed to apply the proper law to the -*- facts and also misconceived the evidence and the case of the -*- appellants which occasioned a miscarriage of justice and thereby led him to come to a wrong conclusion. -*- Whether or not on a proper evaluation of the evidence and application of the correct law the plaintiffs are entitled to succeed in the claim for trespass and damages. Whether this is a case fit to be sent down for retrial de novo .” -*- Let me state it here that the respondents adopted the three issues for determination as formulated by the appellants and reproduced above. -*- Arguingissue 1, the appellants contended that the learned trial Judge -*- did not properly evaluate the evidence of the plaintiffs and he failed to apply the correct law in his first findings on the issue of title. The appellants -*- conceded the onus which rests on them to prove their root of title to one whose title is established. Appellants’counsel cited Thomas v. Holder (1946) 12 WACA 78. They contend that the failure to call their grantors or to prove grant was not fatal to their case because it did not affect their right to -*- possession since trespass is independent of claim for declaration of title. -*- Learned counsel cited the case of Oluwi v. Eniola (1967) NMLR 339 at 340. -*- On behalf of the respondents, it was submitted that the appellants, who relied heavily on grant of the land to them, failed to call their grantors -*- to confirm the truth or otherwise of same. It was submitted that such failure to call their grantors was fatal to their case. Learned counsel for the respondents cited the cases of Kode v. Yussuf (2001) 5 NSCQR 376 at 391, Piaro v. Tenalo (1976) 12 SC 31 at 41. -*- It is my considered view that the learned trial Judge was right when -*- he found that the appellants, who claimed to have derived their root of title from the Fijabi and Ogunmola families, had the onus to call members of the -*- two families to prove the grant. The grantors should have proved how they came to the land. Such evidence should not have been left in the air. See -*- Piaro v. Tenalo (supra) at page 41. The appellants rightly conceded the A point without any prompting. In short, the appellants failed to prove any grant of the land in dispute to them. Their claim to ownership of the land through alleged grant thereby collapsed. The appellants failed to prove their title by cogent, satisfactory and conclusive evidence. See Onibudo v. Akibu -*- (1982) 7 SC 60, Aikhionbare v. Omoregie (1976) 12 SC 11. B -*- The respondents, on their part, pleaded settlement by Jangbon their -*- forebear on the land in dispute. The 1st respondent testified as DW4 at the trial court that Jangbon migrated from Oyo to Igbo Owe - a virgin land. The land in dispute formed part of the land discovered by Jangbon who settled other people, including appellants’ ancestors on payment of tributes on the -*- land. Jangbon was succeeded by his children - Molara and others. Molara C -*- begat Okesola Jangbon, the 1st respondent who begat the 2nd respondent. The respondents proved the mode of founding or discovering the land by Jangbon the original settler. They showed the history of devolution of the land to the present respondents. Refer to Piaro v. Tenalo (supra) ; Ohiaeri -*- v. Akabeze (1992) 2 NWLR (Pt. 221) 1; Anyanwu v. Mbara (1992) 5 D -*- NWLR (Pt. 242) 386. -*- Generally, there is a presumption that the decision of a trial court on facts is correct. An appellate court ought not to substitute its own views of facts for those of the trial court which heard evidence and watched the -*- demeanour of witness. See Ajayi v. Aina (1942) 16 NLR 67; Ebba v. E -*- Ogodo (1984) 1 SCNLR 372, (2000) FWLR (Pt. 27) 2094; Ohanaka v. -*- Achugwo (1998) 9 NWLR (Pt. 564) 37. An appellate court will not lightly interfere with findings of fact by a trial court unless for compelling reasons. See Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt. 93) 225. -*- A trial court, in evaluating evidence, must put all evidence with probative value adduced by each side on a imaginary scale to see which F -*- side the scale tilts. Indeed, section 135 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990 provides for proof on the balance of probability. See Mogaji v. Odofin (1978) 4 SC 91 at 93; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413. -*- The appellants, as plaintiffs, had the burden of proof to establish their G claim. Onus of proof does not shift to the respondents who did not counter- claim. See Elias v. Disu (1962) 1 All NLR (Pt. 1) 214 at page 220. As stated earlier on in this judgment, the appellants who placed reliance on grant of same to them by Fijabi and Ogunmola families failed to prove -*- same. H -*- The respondents traced their genealogy of the family to Jangbon, the -*- radical owner and original settler of the land in dispute. Apart from this point, they called DW2 and DW3 who are their tenants on the land in -*- dispute. Indeed, DW2 said it clearly under cross-examination that his own family as well as the appellants’ family pay tribute ( ishakole ) to Jangbon family yearly. -*- To my mind, it is beyond dispute that the learned trial Judge was on a firm ground when he found that the appellants failed to prove ownership of -*- the land in dispute through a grant to them. Even then, the land in dispute is contiguous to the respondents’ family land as extant in exhibit D1. The -*- presumption created by section 46 of the Evidence Act favours the respondents’ family as the true owners of the land in dispute. I agree with the learned trial Judge on same. -*- It was contended on behalf of the appellants that the learned trial -*- Judge did not properly apply the test to the conflictingtraditional evidence -*- of the parties in accordance with the rule in Kojo II v. Bonsie (1957) 1 WLR 1223 at 1226. -*- Let me state it clearly here that there must be evidence of probable traditional histories adduced by the parties lying side by side to warrant the -*- application of the rule in Kojo II v.Bonsie (supra). See Oloriode v. Oyebi (1984) 5 SC 1 at page 17; Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393. It has been shown earlier on in this judgment that the appellants failed to prove the alleged grant of the land to their forebear. There is no probable traditional evidence put up by the appellants. The result is that the appellants have nothing on their own side of the imaginary scale to match the respondents’ clearlyset out traditional evidence. In short, the application -*- of the rule in Kojo II v. Bonsie (supra) is of no moment here. Clearly, it is not applicable in the circumstances and the appellants should be so told. -*- The appellants contended that the learnedtrial Judge wrongly rejected -*- the evidence of PW3 who stayed in the court contrary to instructions that -*- he should be out of the court while PW1 and PW2 testified. It is my view -*- that although the learned trial Judge made serious remarks on the attitude of the witness, his evidence was not rejected. The evidence of PW3 on grant of the land to the appellants by Fijabi and Ogunmola families was considered. The learned trial Judge considered same and found it to be -*- deficient. There is no big deal in the complaint. -*- Appellants felt that the learned trial Judge failed to properly evaluate their survey plan- exhibit P1. The learned trial Judge referred to exhibit P1 as a perimeter survey and not a dispute survey plan. I am at one with the learned trial Judge. I have tried to give exhibit P1 a careful study and -*- appraisal. I am unable to see how it advanced the claim of the appellants positively. It showed no farm in existence. It did not show where the -*- respondents allegedly trespassed upon like the cutting of the palm trees and other acts of trespass for which the appellants claimed special and general -*- damages. PW4, the photographer who made out exhibits P2-P33 did not A -*- mention the name of the place where he took his photographs. PW1 failed to indicate the locations on exhibit P1 where palm trees were cut.At least, the locations of the remains of the cut palm trees should have been shown. -*- But such is not the case herein. Even if it is taken that the appellants proved -*- possessory right, they failed to prove that the respondents trespassed on the B -*- area of land granted to them by the respondents. No unlawful entry causing -*- damage has been proved against the respondents and they cannot be held liable in damages. See Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 623. -*- It was contended on behalf of the appellants that if special damages -*- was not strictly proved, they are at least entitled to general damages for trespass. The case of F.C.W.H. v. Lababedi & 15 Ors. (1977) 11-12 SC C -*- 15 at page 24 was cited. I am not at one with that stance for the reason earlier stated that no unlawful entry has been proved against the respondents. I cannot see my way clear in reversing the pragmatic findings of fact by the learned trial Judge. -*- Without any equivocation, I hereby resolve issue No. 1 against the D -*- appellants and in favour of the respondents. -*- Arguing issue 2, it was submitted on behalf of the appellants that their case did not receive the treatment it deservedin the hand of the learned trial Judge and that the appeal should be allowed. The case of Gbadamosi -*- v. Ajani (1969) 5 NSCC 176 was cited with dexterity. It was contended E -*- that the learned trial Judge failed to critically evaluate the evidence. There -*- was the complaint that he did not decide the case on the totality of evidence before him. It was also felt that he did not decide the case on the basis of what has been demonstrated and tested before him by the parties. The case of Akoko v. Igbala N.A. Police (1966) NMLR 57 was cited. It was -*- insinuated that he embarked upon an investigation of his own outside the F -*- evidence adduced and that he gave a decision based on his own postulation or injected his own views. The case of Bornu Holding Ltd v. Alhaji Bogoco (1971) 1 All NLR 324 was cited. It was alleged that he drew wrong conclusions from accepted and proven facts. There was the criticism that -*- he failed to ascribe probative value to evidence. G -*- Appellants felt that the learned trial Judge appeared to be more favourably disposed to the respondents. The case of Majoroh v. Fassassi (1986) 5 NWLR (Pt. 40) 243 at page 255 was cited. Appellants’ counsel observed that a careful perusal of the judgment reveals that the learned trial -*- Judge based the exercise of his discretionnot inaccordance with the dictates H -*- of justice and has thereby occasioned a miscarriage of justice. -*- On behalf of the respondents, it was submitted that there is no miscarriage of justice. He felt that there is no substantial error that should -*- warrant the appeal being allowed. He cited Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130. -*- To my mind all the allegations made against the learned trial Judge appear misplaced. I cannot see how the appellants who failed to call their surmised grantors can be heard to seriously raise a finger. In the same -*- manner, they failed to connect the respondents with any form of trespass both in their viva voce evidence and in their exhibit P1. I cannot surmise -*- the rationale for their belated complaint. The insinuation that the learned trial Judge embarked upon an investigation of his own is not born out by the record. The learned trialJudge treated the evidence before him with extreme caution. The allegation that he appeared more favourably disposed to the -*- respondents appears to emerge from the air. I cannot see from the transcript -*- record of appeal where the counsel who handled the appellants’ case at the lowercourt complained about the manner the case was handled. I am unable to trace any miscarriage of justice that should warrant the appeal being allowed on that score. The learned trial Judge did his job well and hardly -*- needs to be vilified. -*- Perhaps I need to point it out that addresses by counsel are meant to assist the court. It should not be coloured. No amount of brilliance in a fine speech can make up for lack of evidence to prove and establish or else disprove and demolish points in issue. See Niger Construction Co. Ltd v. -*- Okugbeni (1987) 4 NWLR (Pt. 67) 787. -*- Onus of proof lied on the appellants who sought declaration of title. -*- They had to succeed on the strength of their case; and not on the weakness of the respondents’ case, if any. See Woluchem v. Gudi (1981) 5 SC 291. Grant ofdeclaration oftitle toland assought bythe appellants is discretionary. See Kodilinye v. Odu (1935) 2 WACA 336. A Judge must exercise his -*- discretion not only judicially but judiciously as well and with considerable -*- measure of circumspection. Judicious means being wary and careful. See -*- Eronini v. Iheuko (1989) 2 NSCC (Pt. 1) 503 at 513, (1989) 3 SC (Pt. 1) -*- On the whole, I am of the considered opinion that the learned trial G Judge carried out his job with care. In substance, I cannot see how I can rightly fault him. I resolve issue 2 against the appellants and in favour of the -*- respondents. -*- Arguingissue 3, appellants felt that this is a case where retrial should be ordered. The case of Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. -*- H 57) 366; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Owonikoko v. -*- Arowosaiye (1997) 10 NWLR (Pt. 523) 61 at 79 and Dumuje v. Iduozo & -*- Anor. (1978) 11 NSCC 51, (1978) 2 SC 1 were cited. Appellants felt that there was miscarriage of justice that should warrant an order of retrial. -*- On behalf of the respondents it was submitted that the court should A consider whether the justice of the case demands an order of retrial. He cited Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721. Learned counsel felt that the appellants who failed to establish the case put forward -*- by them in their pleadings should not seek to repair same by asking for a -*- retrial. He felt that to make an order of retrial will amount to affording them B -*- a second chance to prove what they failed to prove. -*- It is my considered view that the appellants who were derelict in properly proving their claim before the lower court should not be heard to ask for a retrial. Obviously, a retrial is not designed as an avenue for a plaintiff who put up a poor show at the first trial to have a second bite at the -*- cherry so as to repair what he initially failed to do. That will not be justice to C -*- the other party. I am clearly of the opinion that thisis not a case that warrants an order of retrial. The learned trial Judge treated all the substantial issue before him properly.I amunable to see any serious error of law or irregularity in procedure which results in serious miscarriage of justice to warrant an -*- order of retrial. In short, I do not think that an order of retrial is warranted D herein taking into consideration the whole gamut of the circumstances of this matter. I refuse to be drawn into such a melee. I accordingly decline to make an order of retrial. Same is clearly not desirable. I resolve this issue against the appellants and in favour of the respondents. -*- I come to the conclusion that the appeal is devoid of merit. It is E -*- hereby dismissed as I affirm the judgment of the learned trial Judge handed -*- out on 21st of March, 2003. The appellants shall pay N5,000 cost to the respondents. -*- AUGIE JCA: I have read before now the lead judgment just delivered by F my learned brother, Fabiyi JCA and I agree with him that the appellants clearly failed to prove their case in the lower court and should not be indulged with an order for retrial, because it is an indulgence. An order for retrial gives the plaintiff a second chance to repair his case and return with his repaired action to fight the defendant. Where a plaintiff fails to prove his G case, the action stands dismissed and he will not be afforded another chance -*- to relitigate the action - see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544; Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283, where the Supreme Court per Iguh JSC held - -*- “I think the point must be stressed that an order for retrial H -*- inevitably implies that one of the parties, usually the plaintiff, -*- is beinggiven another opportunity to relitigate the same issues between the parties all over again.An appellate court before -*- All FWLR Adekanmbi v. Jangbon (Udom-Azogu JCA) 165 -*- deciding to make such an order ought to satisfy itself that the other party, usually the defendant, is not thereby beingwronged to such an extent that a miscarriage of justice would be occassioned. Clearly, an order f or retrial cannot be appropriate where it is manif est that the plaintiff ’s case has totally failed and that no irregularity of a substantial nature is apparent on the records or shown to the court .” -*- (Italics mine). -*- In this case, the learned trial Judge treated all the substantial issues properly; the appellants clearly failed to discharge the onus of proving their case, and the respondents will definitely be wronged if an order for retrial is -*- granted. The appeal therefore lacks merit and it is also dismissed by me. I -*- abide by the consequential orders in the lead judgment, including the order on costs. -*- UDOM-AZOGU: I have had the privilege of reading in advance the judgment just delivered by my learned brother, John Afolabi Fabiyi JCA. The reasoningand conclusionstherein cannot be faulted.I shallwith respect, add one or two comments of my own. -*- It is trite that the onus of proof in a claim for declaration of title to -*- land lies squarely on the claimant to prove his case on the strength of his own case. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Idundun -*- v. Okumagba (1976) 1 NMLR 200. -*- In the instant case, the appellants who claimed to have derived their title from Fijabi and Ogunmola families failed to call members of the two families to prove the grant.The learned trial Judge failed to evaluate evidence -*- placed before it according to law. However, in the instant case, the evidence -*- adduced was placed on the proverbial imaginary scale and it tilted in favour of the respondents. See Mogaji v. Odofin (1978) 4 SC 9. -*- The appellants’attempt to find solace in Kojo II v. Bonsie claiming that the evidence given by either party to the action was in direct conflict, -*- collapsed like a pack of cards having regards to the fact that the appellants evidence did not conflict with those of the respondents who established that appellants paid ishakole to the respondents. -*- For the above reason and the more comprehensive reasons contained in the lead judgment, I too find the appeal unmeritorious, dismiss same and -*- affirm the judgment of the court below delivered on 21st March, 2003. I abide by the order as to costs. -*- Appeal dismissed

Judgement

FABIYI JCA: This is an appeal against the judgment delivered byArasi J A while sittingat the High Court of Justice, Ibadan, Oyo State of Nigeria on the 21st day of March, 2003. The learned trialJudge dismissed the appellants’ claims in their entirety.

The claims put up by the appellants as plaintiffs at the trial court can be found in paragraph 16 of the further amended statement of claim at page B 19 of the record of appeal. It reads as follows:

“ Whereof the plaintiffs’ claim against the defendants as follows:

Deemed customary right of occupancy over that farmland known as Akamo-Ekun in Akinyele Local Government Area of Ibadan.

Perpetual injunction restraining the defendants, their C servants, agents, privies or anyone claiming through them from committing further acts of trespass on the land in dispute. Special damages of N300,000.00.

General damages of N10,000.00.” D

Upon the exchange of pleadings, each side of the divide called four witnesses. The evidence adduced by the plaintiffs poi…

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