Alfa Saibu Alao V. Memudu Kure & Anor (2000) LLJR-CA

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

This is an appeal against the judgment of Hon. Justice J.A. Ibiwoye of the Kwara State High Court of Justice sitting at Ilorin in suit No. KWS/22/91 delivered on 10th December, 1997 in which the learned trial Judge dismissed the appellant’s case.

By a writ of summons issued on 7th February 1991, the appellant claimed against the respondents as follows:

“The Plaintiff is the owner of a piece of land situated at Ile Ogunkan, Ojuekun Area, Ilorin over which the defendants trespassed by digging holes on the ground. Whereof, the plaintiff claims an order of perpetual injunction prohibiting the defendants jointly and/or severally from committing further acts of trespass over the plaintiff’s land.

The plaintiff also claims special and general damages”.

In his statement of claim which was filed on the same 7th February, 1991 the plaintiff claims as follows:

“WHEREOF the plaintiff claims jointly and/or severally against the defendants a perpetual injunction prohibiting the defendants from committing further act of trespass over the plaintiff’s land situate and lying at Ojuekun, Ilorin. The plaintiff also claims special and general damages”.

It is clear that the appellant did not specifically claim any amount as special and general damages in both the writ and the statement of claim.

The case of the appellant in his evidence is that he sued the respondents over a piece of land situate opposite Ile-Agbarere in Popo Area, Ilorin. He said that the land belonged to his ancestor – one Magaji Oju – Ekun, which land he has inherited. That, the land had passed through his great grand father one Ogelogun and later Momoh and Maliki who was Momoh’s son. That Maliki is his father i.e. appellant’s.

That while he was preparing to develop the land, he found 1st respondent also trying to develop the land too. That he reported the matter to the police who advised court action. The appellant also told the trial court that Ayuba Kure was a stranger to his father and was never given any land. That Ogelogun was not a visitor to Magaji Yerepe who was a visitor to Ogunkan. That Daodu Isale Oja is never the owner of the land.

Under cross-examination, the appellant agreed that his house, the 1st respondent’s house and the land in dispute are called Popo Igbona Area. That there are four Magaji in the area namely: Magaji Igbona, Magaji Akinlaso, Magaji Kure and Magaji Akebiore. He also agreed that the land in dispute is indeed Ile Kure. He also agreed that the 1st respondent is the present Magaji Kure. He however said that Ogunkan was the first Magaji Kure and not Magaji Mustafa Lagbaja.

That Ogelogun started their lineage and that Ogelogun was there before the arrival of Yerepe. The appellant said that it is not true that Ogelogun was handed over to Usman or that he came because he stole a ram in his village. The appellant denied that he requested for a place to mould blocks during the reign of Alhaji Ajape Sanni. However, he said that he was moulding blocks on a piece of land already at foundation level. He admitted that Alhaji Ayinla the father of 2nd Respondent owns the land. He said that it is not true that Magaji Kure gave Ogelogun the land where the appellant now lives.

On the other hand, the case of the respondents is that the land in dispute was originally owned by one Ayinla who was given the land by Kure. The 1st respondent said that the foundation of the house on the land was laid by the father of the 2nd respondent in 1974 and that the 2nd respondent inherited the land from his father. That the appellant only got permission from the late Magaji to mould blocks by the side of Ayinla’s foundation. That when the 2nd respondent tried to continue the building in 1991 the appellant instituted the action. That the appellant’s block are still by the side of the foundation. That the appellant has no land in Kure compound but that the land in dispute is in Kure compound. That the land in Kure compound was given by Daodu Isale Oja to one Mustafa Lagbaja during the reign of Oba Aliyu, the fourth Emir of Ilorin. That there is no place in Kure compound called Ogunkan. The respondents confirm that the appellant is a descendant of Ogelogun who lived at Ile Kure and was a chief who was given two rooms to live in and which rooms are still in occupation by his descendants till date.

At the conclusion of evidence and addresses of counsel, the learned trial Judge delivered his judgment in which he dismissed the appellant’s case as a result of which the appellant has appealed to this court on 12 grounds of appeal out of which 3 issues have been formulated by learned Counsel for the appellant Adebayo Adelodun, Esq. in his brief of argument filed on 14th May, 1998. The issues are as follows:

“1. Whether the lower Court did not truncate and occasion a grave miscarriage of justice to the appellant’s case when it failed totally to review, evaluate and ascribe probative value to the evidence of all the appellant’s witnesses?

2. Whether the traditional history of ownership of the disputed land as narrated by the appellant and his witnesses was indeed deflated by the evidence of the defendant (sic) and their witnesses?
3. Whether in the circumstances of this case, the appellant has not made out a prima facie case?”

On issue No 1, learned Counsel for the appellant submitted that in writing a judgment, the trial Judge has a duty to ensure that each party’s case is given equal and adequate treatment by reviewing and evaluating each side’s case and making findings thereon.

That where a judge fails or refuses to review and/or evaluate the evidence of witnesses who testified before him, such a judge has clearly failed in availing himself of the opportunity presented and inherent in his hearing and seeing the witness(sic) an can no longer be presumed to have held evenly, the scale of justice between the parties.

That the fact that evidence of one or two witnesses are identical does not relieve the trial Court of its duty to review, evaluate and ascribe probative values to them.

That the evidence of PW1, PW2 and PW3 which the trial Judge regarded as identical and refused to review let alone consider in its judgment is indeed corroborative and supportive of the appellant’s claim. That PW3 testified at page 37 lines 25-31 through to page 38 lines 1-5 of the record and that he stated thus:

“The land was given to the ancestors of the plaintiff by our own ancestors”

That considering the fact that the appellant had traced the root of his title to the family of the witness it was imperative for the lower Court to evaluate his testimony and make its findings.

That if the lower Court had done its duty by evaluating the worth of the testimonies of PW1, PW2 and PW3, its decision would have been otherwise, as it would not have dismissed the appellant’s case, learned Counsel further submitted.

In support of his submissions on Issue No.1, learned Counsel referred to the following cases: EPEROKUN V. UNILAG (1986) 4 NWLR (PT. 34) 162 AT 195; ADEYEYE V. AJIBOYE (1987) 3 NWLR (PT. 61) 432 AT 451; STEPHEN V. THE STATE (1986) 5 NWLR (PT.76) 987 AT 1005; DURU V. NWOSU (1987) 7 SCNJ 154, and SANUSI V. AMOYEGUN (1992) 4 NWLR (PT.237) 527 AT 546-547.

In his reply, learned Counsel for the respondents SARAFADEEN O. HANAFI, ESQ, in his brief of arguments filed on 18/5/99 formulated two issues for determination of the appeal viz.:

“(a) Whether the lower Court considered the evidence of both the appellant and the respondents before arriving at its judgment?.

(b) Whether the judgment of the lower court is supported by the facts of this case as presented to the court by both the appellant and the respondents?”

I am of the view that the two issues formulated by learned Counsel for the respondents equally arise from the grounds of appeal and that they are substantially the same with those of the appellants. However, for the purpose of determining this appeal I intend to adopt the issues formulated by the learned Counsel for the appellant.

In his brief, learned Counsel for the respondents submitted that the complaint of the appellant in issue No.1 is misconceived. That the Court painstakingly reviewed and summarised the evidence of the appellant and the respondents from page 55 to 61 of the record. That it was in the course of the review and summary that the lower Court found that the evidence of appellant’s witness Nos. 1, 2 and 3 was identical to that of the appellant and therefore need not be repeated in full.

Learned Counsel referred to page 61 lines 9 to 27 of the record and submitted that the trial court did ascribe probative value to the evidence of the appellant and his witnesses.

That the main reason why the Court below preferred the traditional evidence of the respondents to that of the appellant was due to the fact that the evidence of the respondents was not challenged by the appellant on material points by way of cross-examination.

That the material points which were not challenged include:

(a) The fact that the land in dispute was originally given by Kure to one Ayinla and the fact that 2nd respondent inherited it from the said Ayinla.

(b) That the said Ayinla had laid a foundation of the house on the land since 1974.

(c) That the appellant did ask for permission from the late Magaji Kure to mould blocks by the side of the foundation already on the land in dispute.

(d) That the appellant had no land in Kure’s compound and that the land in dispute is in Kure’s compound.

(e) That there is no place called Ogunkan in Kure’s compound.

(f) That the appellant was a descendant of one of Ogelogun who at different times lived in and out of Kure’s compound.

That the trial Court was right in preferring the unchallenged and uncontroverted evidence of the respondents.

Going through the judgment of the trial Court and the submissions of learned Counsel for both parties, it is clear and I hereby hold that the learned trial Judge neither reviewed nor evaluated the evidence of PW1, PW2 and PW3 in his judgment.

The learned trial Judge however reviewed the evidence of the appellant exhaustively. Turning to the case of the respondents, the learned trial Judge reviewed the evidence of the respondents and each of their witnesses.

The reason why the learned trial Judge failed to review the evidence of PW1, PW2 and PW3 is that their evidence is identical- See page 57 of the record where the trial Judge stated as follows:

“The evidence of PW1, PW2 and PW3 called by the plaintiff are identical and need not be repeated in full”.

This is the crux of the appellant’s complaint in the issue under consideration.

It is my view that the learned trial Judge should have reviewed the evidence of PW1, PW2 and PW3 just as he reviewed those of the witnesses called by the respondents. It is not enough to say that the evidence of the witnesses are identical. What is good for the goose is good for the gander. It is settled law that justice must not only be done but must manifestly be seen to have been done.

However, that is not the end of the matter. We have to find out what the PW1, PW2 and PW3 said and evaluate same to see whether the default of the learned trial Judge in reviewing their evidence actually occasioned a miscarriage of justice. This is because the Supreme Court has held in very many cases that it is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that the appellate Court is bound to interfere – see ONAJOBI V. OLANIPEKUN (1985) 4 SC (PT.2) 156; OJE V. BABALOLA (1991) 4 NWLR (Pt. 185) 267; IKE V. UGBOAJA (1993) 6 NWLR (PT.301) 539; FAMUROTI V. AGBEKE (1991) 5 NWLR (Pt. 189) 1; and ONAMADE V. A.C.B. LTD. (1997) 1 NWLR (PT.480) 123 AT 145-156.

PW.1 is one Jimoh Ishola. He testified at pages 35-36 of the record. He told the court that he knew the land in dispute and that it is situate along Popo Igbona. That the land is between Ile-Orisankoko and Ile-Igbona. That the land belongs to the appellant. That the grandfather of the appellant, one Ogelogun was the person originally given the land by Ojuekun. He knows Ile Kure, and the Ile Tanimowo. He also knows Ile Ogunkan. That the three houses belong to Ile Ogunkan. That Ayuba Kure is a stranger at Ogunkan. That it was the father of the 1st respondent who ran to Ile Ogunkan when he stole a sheep.

Under cross-examination PW1 said that he knew one Alfa Ayinla the father of the 2nd respondent. That there is already an uncompleted building on the land in dispute. That it was not Alfa Ayinla who started the building but the 2nd respondent who did so about eight years ago. That the 2nd respondent is a member of Kure family. He denied that the land in dispute belongs to Kure family. That the 1st Magaji Ojuekun gave the land in dispute to Ogelogun. He also knows that there are four Magajis in the area namely Magaji Igbona, Magaji Akinlaso, Magaji Akebiore and Magaji Kure.

PW2 is Suleiman Atanda. He testified at pages 36 and 37 of the record. He told the court that he knows the parties and the land in dispute. That the appellant is the owner of the land. That it was Magaji Ojuekun who gave the land to the appellant’s grandfather. That Ogunkan had a child named Momoh who had Abdul Malik who was the father of the appellant. That Ogelogun and the respondents are not of the same family. He knows Kure family compound and Tanimowo compound and Ile Ogunkan. That both Tanimowo and Ogunkan compounds are within Kure’s compound.

That in 1988 the appellant was moulding blocks in preparation to start a building. That the respondents started building on the same spot where the appellant’s materials were kept. That the matter was reported to the police who advised civil action.

Under cross-examination, PW2 admitted that at the time the appellant was moulding blocks there was already a foundation on the land but does not know when the foundation was started. He later told the court that it was the father of the 2nd respondent who built the foundation he earlier mentioned. He told the Court that there was no longer Magaji Ojuekun.

PW3 is Alhaji Saadu Ayinde. He described himself as Magaji Ojuekun. His evidence is at pages 37 – 38 of the record. He told the Court that he knows the land in dispute and that it belongs to the appellant. That the land was given to the ancestor of the appellant by his ancestors.

Taking the totality of the evidence of the appellant and his witnesses and those of the respondents the following facts are established; namely:

(1) That the appellant and the respondents do not have a common ancestry.

(2) While the ancestor of the appellant is Ogelokun, that of the respondents is Kure.

(3) While the appellant and his witnesses claim the land as belonging to the appellant, the respondents and their witnesses claim that the land belongs to the respondents.

(4) At page 33 of the record the appellant admitted that there is a foundation on the land where he moulded his blocks and that he knows that “Alhaji Ayinla father of the 2nd defendant owns that land”.

(5) That the fact stated in paragraph 4 above is confirmed by the testimony of PW2 called by the appellant at pages 36 and 37 of the record where he stated thus:

“At the time the plaintiff was moulding blocks there was already a foundation on the land. It was the father of the 2nd defendant who built the foundation earlier mentioned.”

(6) While PW2 stated emphatically that there was no longer Magaji Ojuekun, PW3 said he occupies that office.

It must be noted that the appellant’s case before the lower Court is simply that of trespass but it is clear that by the respondents’ insistence that the land in dispute does not belong to the appellant but the 2nd respondent, they have put the title of the appellant in issue and therefore for the appellant to succeed he has to establish a better title to the disputed land than that of the 2nd respondent.

On the other hand, a trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs land and did damage.

It follows that in order to maintain an action for trespass the plaintiff must have a present possessory title an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry – see AJERO V. UGORJI (1999) 10 NWLR (Pt.621) 1.

Therefore a claim for trespass to land is rooted in exclusive possession. All that the plaintiff needs therefore to establish to succeed in such a claim is that he has exclusive possession or the right to such possession of the land in dispute. However, once the defendant asserts ownership of such land in dispute, title thereto is automatically put in issue and the plaintiff must establish a better title than that of the defendant – see AMAKOR V. OBIEFUNA (1974) 3 SC 67.

The question now is whether having regards to the totality of the appellant’s case including the evidence of PW1, PW2 and PW3 the appellant was able to establish his claim before the lower court.

To resolve this issue it is necessary to evaluate the evidence before the trial court on the point under consideration. The principle of law guiding appellate courts in evaluation of evidence has been stated in many cases including NWOKORO V. NWOSU (1994) 4 NWLR (Pt.337) 172 as follows:

“1. As a general rule, when the question of the evaluation of evidence by a trial court does not involve the credibility of witnesses but the complaint is against non-evaluation or improper evaluation or appraisal of all the evidence tendered before the trial court, an appellate court is in as good a position as the trial court to do its own evaluation (ABISI V. EKWEALOR (1993) 6 NWLR (Pt.302) 643 at 673-674.

2. Evaluation of evidence is primarily the function of the trial judge. It is only where and when he fails to evaluate such evidence properly or at all that a Court of Appeal can intervene and itself re-evaluate such evidence – see ATOLAGBE V. SHORUN (1985) 1 NWLR (Pt.2.) 360; OBODO v. OGBA (1987) 2 NWLR (pt.54) 1 etc.

In the present case, the complaint of the appellant in issue No.1 is non-review and appraisal or evaluation of the evidence of the appellant and his witnesses by the learned trial Judge.

I have already found as a fact and held that the appellant admitted at page 33 of the record that there is a foundation on the land where he moulded his blocks and that he knows that Alhaji Ayinla father of the 2nd respondent owns that land.

This very fact is confirmed by PW2, one of the witnesses whose evidence was not reviewed and evaluated by the learned trial Judge when he stated at page 36 and 37 of the record of proceedings as follows:

“At the time the plaintiff was moulding blocks there was already a foundation on the land …it was the father of the 2nd defendant who built the foundation earlier mentioned.”

It is trite law that the admission of both the appellant and PW2 is admission against interest and completely knocks the bottom off the case of the appellant.

It is clear that the appellant unequivocally concedes ownership of the land in dispute to the 2nd respondent by his evidence and that of his witness. That apart, it means that the appellant is also not in exclusive possession of the land in dispute so as to ground his action for trespass as earlier on stated in this judgment.

In conclusion, it is clear and I hereby hold that the non-evaluation of the evidence of PW1, PW2 and PW3 does not occasion any miscarriage of justice. That having regards to the state of the pleading and evidence before the trial court their evidence do not positively affect the case of the appellant. I will return to another aspect of this matter later in this judgment. It is therefore my considered opinion that issue No.1 be and is hereby resolved against the appellant.

On issue No 2 learned Counsel for the appellant submitted that the lower Court erred in not giving reasons for his holding that the traditional history narrated by the appellant and his witnesses had been so deflated by the evidence of the respondents and their witnesses that it becomes very difficult for him to believe the story of the appellant and his witnesses. That the conclusion was reached without evaluating the evidence and therefore has no basis, learned counsel further submitted. Learned Counsel cited and relied upon the case of ATOYEBI V. GOVERNOR OF OYO STATE (1994) 5 SCNJ 62 at 83; (1994) 5 NWLR (Pt. 344) 290.

That the evidence that the plaintiff is a descendant of Ogelogun supports the claim of the appellant and therefore it is wrong for the appellant to be penalised for not controverting an evidence which actually supports his case.

That the story and the antecedent of Ogelogun are irrelevant to the determination of who as between the appellant and the 2nd respondent owned the disputed land. In other words, that it is immaterial that Ogelogun was a rapist or a thief or an arsonist so long as his ancestors owned the land.

Learned Counsel then urged the Court to hold that the inference drawn by the lower Court regarding the traditional history narrated by the appellant is baseless and perverse and called on the court to intervene and draw correct inferences from the primary facts; for this learned Counsel relied on the case of ONWUKA V. OMOGUI (1992) 3 SCNJ 98; (1992) 3 NWLR (Pt. 230) 393 and EKRETSU v. MILLER OYOBEBERE (1992) 11/12 SCNJ 189; (1992) 9 NWLR (Pt. 266) 438.

In his reaction, learned counsel for the respondents submitted that the complaints of his learned friend are misconceived. Learned Counsel stated that the appellant stated that he was claiming land opposite Ile Agbarere in Popo Area, lIorin which he claimed is owned by Magaji Oju – Ekun but later said it was rather Ogelogun who was given the land by Magaji Oju – Ekun. That the appellant stated that there are four prominent Magaji’s in the area and that the land in dispute is called Ile Kure and that the 1st respondent is the present Magaji Kure.

However, the appellant stated under cross-examination that “Ile Kure Ogunkan and the Tanimowo are the places I am claiming.” That this shows uncertainty of the land in dispute. That the appellant admitted moulding blocks on a piece of land already at foundation level and knew that the father of 2nd respondent owned the land. That it is confirmed by the evidence of PW2.

On the other hand, learned Counsel said that the respondents testified to the fact that the land in dispute situated in Kure compound and that it was originally granted to one Ayinla, the father of 2nd respondent by the then Magaji Kure. That Ayinla laid a foundation on the land as far back as 1974. That Ogelogun through whom the appellant claims has no land in Kure compound. Counsel then urged the court to affirm the holding of the trial Court.

I have carefully gone through the pleadings and evidence before the trial court and I am of the firm view that there is conflicting traditional history concerning the ownership of the land in dispute. The law is well settled since 1957 that where there is a conflict of traditional history in land matters, as in the instant case, demeanor of witnesses is of little guide to truth. The best way to test the traditional history is by reference to the facts in respect of recent acts of ownership on the land as established by evidence and by seeing which of the two competing histories is more probable. – see KOJO v. BONSIE (1957) 1 WLR 1223; EBOADE V. ATOMESIN (1997) 5 NWLR (pt.506) 490; NKADO V. OBIANO (1998) 5 NWLR (Pt.503) 31.

The traditional history of the appellant is that his ancestor Ogelokun owned the land and that he became the owner by inheritance. That the respondents trespassed unto the land while he – appellant was moulding blocks to develop the land. That Ayuba Kure through whom the respondents claim was a stranger to the family of Ogelogun and that Ayuba Kure was never given the land. That Daodu Isale Oja is never the owner of the land.

The respondents say that the land is in Kure’s compound and that Kure’s compound land was given by Daodu Isale Oja to Mustafa Lagbaja during the reign of Oba Aliyu the 4th Emir of Ilorin.

That the portion of land in dispute was given to Ayinla who laid a foundation thereon in 1974 but died later. That the 2nd respondent is the son of the said Ayinla who inherited that land. That the appellant later came and sought permission from the then Magaji to mould blocks on the land in dispute which was granted.

From the totality of the evidence before the court, the respondents’ traditional history is preferable to that of the appellant in many respects.

(1) The appellant admitted under cross-examination that the land in dispute is called Kure and that the 1st respondent is the present Magaji Kure – see page 33 of the record.

(2) That he was moulding blocks on the land which had a foundation. That that land is owned by Alhaji Ayinla, the father of 2nd respondent – see page 33.

(3) PW 1 said at page 35 of the record that there is already an uncompleted building on the land in dispute and that it was started by the 2nd respondent who is a member of Kure family.

(4) PW2 stated at page 36 of the record as follows under cross-examination.

“….I know Kure family/compound and Tanimowo compound and Ile Ogunkan. Both Tanimowo and Ogunkan compounds are within Ile Kure compound.”

(5) Under cross-examination, PW2 stated thus:

“At the time the plaintiff was moulding blocks there was already a foundation on the land. I do not know when the foundation started. It was the father of 2nd defendant who built the foundation earlier mentioned.”

The above are some of the facts that support the traditional history of the respondents and make it preferable to that of the appellant.

Applying the principles of law established in KOJO V. BONSIE supra, it is my view that the admission of the appellant and PW2 that there is already a foundation on the land owned by the father of 2nd respondent even before the appellant started moulding blocks on that land constitute recent acts of ownership of the land by the 2nd respondent.

Much as the law disapproves the way and manner the learned trial Judge dealt with the evidence in this matter while writing his judgment, – he merely summarized the evidence of the parties – excluding that of PW1, PW2 and PW3 – without appropriate judicial consideration or analysis thereof such as giving reasons for his acceptance or rejection of the various facts in issue – It is my view that having regards to the totality of the evidence before that court which has been duly evaluated and given judicial consideration by this Court, the error committed by the learned trial judge has not occasioned a miscarriage of justice. There is sufficient evidence to justify the conclusion he arrived at in his judgment. Consequently, issue No.2 is hereby resolved against the appellant.

On issue No.3, learned Counsel for the appellant submitted that the appellant had more than made out a prima facie case contrary to what the learned trial Judge held in his judgment. That the appellant’s claim as at page 55 of the record is rooted in trespass and injunction. That the appellant testified as to the original root of his title to the land. That the evidence of the three witnesses called by the appellant corroborated his story.

That by the provisions of Section 137 of the Evidence Act the burden of proof in civil matters is not static. That after the appellant’s burden of first proving the existence of the facts alleged by him, the burden as per Section 137(2) of the Evidence Act shifts to the respondents being parties against whom judgment would be given if no more evidence were adduced. Learned Counsel then referred to the case of A.G. KWARA STATE V. OLAWALE (1993) 1 SCNJ 208 at 225; (1993) 1 NWLR (pt. 272) 645 and UNION BANK OF NIGERIA v. OZIGI (1994) SCNJ 42 at 64, (1993) 3 NWLR (Pt. 333) 385.

Learned Counsel further submitted that the learned trial Judge failed to advert his mind to the very elementary principle of the law that civil matters are proved on the balance of probabilities. That if he had adverted his mind to the age-long principle, it is certain that he could not have held that the appellant did not make out a prima facie case.

That apart from the corroborations to the appellant’s case by his three witnesses. DW1 also substantially, corroborated the appellant’s case. That on page 47 of the record lines 33 – 35 DW1 admitted the fact that the disputed land falls in Oju-Ekun/Sanusi Ward politically and that by tradition it falls within Oju-Ekun and within Ajikobi. That this piece of evidence supports the appellant’s claim to the effect that PW3’s family owned the land and granted same to the appellant’s family. That the lower Court failed to make any findings on it.

That if the lower Court had put the appellant’s and respondents’ case on that imaginary scale it would have found that the appellant’s case far outweighs the respondents’ case, that at the very least the respondents had a prima facie case to answer. Learned Counsel then called on the Court to look at the record to consider the pieces of evidence offered especially by PW1, PW2 and PW3 and make the correct findings thereon since the lower Court failed to do so.

He then urged the Court to resolve issue No 3 in favour of the appellant. In his reply, learned Counsel for the respondents submitted that the appellant failed in his evidence to sufficiently describe the land in dispute with certainty.

That the appellant admitted that he knew that the land he was claiming belonged to another person – one Ayinla who had earlier on erected a building foundation thereon. That with these fundamental defects the appellant cannot be said to have made out a prima facie case.

That if the court is minded to evaluate the evidence regard should be had to the pleadings of the appellant and the evidence as to the identity of the land in dispute. That the evidence of the appellant and his witnesses are at variance with the pleadings on identity of the land, and as such they go to no issue, learned Counsel further submitted.

Counsel then urged the court to dismiss the appeal.

I agree with the submission of learned Counsel for the appellant that the claim of the appellant is rooted in trespass and injunction. That being the case, it is the law that where an action in trespass to land is coupled with a claim for perpetual injunction, as in the present case, the title of the parties to such land is automatically put in issue- see AKINROLA V. LASUNPO (1991) 3 NWLR (Pt. 180) 508 at 515; KPONUGLO v. KADAJA 2 WACA 24; OGUNFAOLU V. ADEGBITE (1986) 5 NWLR (Pt.45) 549; AJANI V. LADEPO (1986) 3 NWLR (Pt.28) 276; OKORIE V. UDOM (1960) 5 FSC 162 at 165; (1960) SCNLR 326 etc.

I had earlier on held in this judgment particularly while considering issue No. 2 that the appellant failed to prove his traditional history as to his root of title and that the traditional history of the respondents is preferable having regards to the evidence before the lower court. Having held as stated above it is my considered view that the present issue as to whether or not the appellant made out a prima facie case has been substantially resolved.

I agree with the submission of learned counsel for the appellant that by virtue of the provisions of Section 137 of the Evidence Act the burden of proof in civil matters is not static. That after the appellant’s first burden of proving the existence of the facts alleged by him, the burden as per Section 137(2) of the Evidence Act shifts to the respondents.

However, that is not the end of the matter. The question is whether the appellant has discharged the burden of establishing the existence of the facts alleged by him in this case so as to shift the burden unto the respondents?

It has already been held that in a case in trespass as in this one, where perpetual injunction is also sought the titles of the parties are automatically put in issue. The law is now well settled that in a claim for declaration of title, the plaintiff must prove his case on the balance of probability, sometimes styled preponderance of evidence. The plaintiff can only succeed in obtaining the declaration from the court on the strength of his own case and not on the weakness of the defence unless he finds in the evidence of the defence facts which strengthen his own case – see OYINLOYE V. ESINKIN (1999) 10 NWLR (Pt.624) 540 at 549; AKINOLA V. OLUWO (1962) 1SCNLR 352; WOLUCHEM V. GUDI (1981) 5 SC 291 at 294; ESIABA V. OJIEGBE (1999) 10 NWLR (Pt.623) 463 at 472.

Apart from the holding that the appellant’s traditional history does not hold water I had earlier on also held that the appellant failed to establish exclusive possession of the land in dispute following the admission of the appellant that the land is owned by one Ayinla, the father of the 2nd respondent and that the father of the 2nd respondent had put up a foundation on the land before the appellant even started moulding blocks thereon. See also the evidence of PW2.

What is now left for me to consider is the issue of certainty of the land in dispute. It is my considered view that apart from the issue of ownership and exclusive possession of the land in dispute, the appellant’s case also suffers another fundamental defect – that of certainty of the identity of the land by way of its boundaries. It is the law that in any land suit in which an injunction is being claimed, be it perpetual, interlocutory or interim, a survey plan must either be filed or the boundaries of the land described in such a way that a surveyor could with reasonable certainty draw a plan from it – see ANABARONYE V. NWAKAIHE (1997) 1 NWLR (Pt.482) 374; ONWOKE V. OKEKE (1994) 5 NWLR (Pt.343) 159.

That being the case, it follows that an order of injunction can only be granted when the boundaries of the land in dispute are ascertainable and well known and properly described – See ELIAS V. OMA-BARE (1982) 5 SC 25 AT 54.

What then is the case of the appellant as regards the identity and boundaries of the land in dispute?

In paragraph 1 of the statement of claim, the appellant pleaded that he is the owner of the land in dispute situate at Ile Ogunkan, Ojuekun Area, Ilorin. He proceeded in paragraph 3 to describe the boundaries of the land in dispute as follows:

“The plaintiff says the land is bounded by Ile Aota, Ileigbona, Ile Orisankoko and Ile Adimode respectively”.

In his testimony at page 32 of the record of proceedings the appellant said:

“The land is opposite Agbarere, in Papa Area, Ilorin”

The appellant did not tell the court whether “Popo Area” is the same as “Ojuekan Area” pleaded in paragraph 1 of the statement of claim. To compound the confusion the appellant stated under cross-examination at page 33 of the record as follows:

“It is true that the defendants’ house and mine together with the land in dispute are called Popo Igbona Area”.

Yet under re-examination the appellant said:

“Ile kure Ogunkan and Ile Tanimowo are the place I am claiming”, emphasis supplied by me.

That apart, the appellant never stated the boundaries of the land he is claiming as belonging to him and for which he asks for injunction throughout his testimony.

On the other hand, PW1 at page 35 of the record says:

“The land is situate along Papa Igbona. The land is between Ile Orisankoko and Ile Igbona.”

PW2 said nothing about the boundaries of the land in dispute but admits that it is within Kure compound.

PW3, the alleged original owner whose ancestor allegedly gave the land to the ancestor of the appellant did not describe the boundaries of the land in dispute.

From the pleadings and testimonies in court it is my view that the boundaries of the land have not been described in such a way that a surveyor could with reasonable certainty draw a plan from it, as required by law since the appellant filed no survey plan.

That apart, it is well settled that facts pleaded but not supported by evidence are deemed abandoned.

It is also trite that evidence given at variance with the pleadings ground no issue.These principles of law apply to the case of the appellant on the issue of identity and boundaries of the land in dispute.

Finally, I have to comment on the submission of learned Counsel for the appellant at pages 14 and 15 of his brief of argument when he submitted that:

“…apart from the corroborations to the appellant’s case by his three witnesses, DW1 for the defence also substantially corroborated the appellant’s case. On page 47 of the record lines 33 – 35 DW1 admitted the fact that the disputed land falls in Oju-Ekun Sanusi ward politically and that by tradition it falls within Oju-Ekun and within Ajikobi. This piece of evidence supports the appellant’s claim to the effect that PW3’s family owned the land and granted same to his own family. The lower court however, refused to make any findings thereon.”

I don’t see how this aids the case of the appellant. The appellant himself has given us various descriptions of the land he is claiming; which one is being corroborated by DW1?

In any event, is what DW1 allegedly said pleaded by the appellant? This answer is in the negative. The fact that the land in dispute falls within Oju-Ekun and within Ajikobi constituency is nowhere pleaded. That being the case it grounds to no issue.

In conclusion, it is my considered view that the appellant did not make out any case worthy of any serious consideration for the reliefs claimed. The lower Court is therefore right in dismissing the appellant’s claim in its entirety. This appeal is therefore dismissed as lacking in merit. The judgment of Hon. JUSTICE J. A. IBIWOYE in Suit No KWS/22/91 delivered on 10th December, 1997 is hereby affirmed.

There shall be cost for the respondents which I assess and fix at N3,500.00.

Appeal dismissed.

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Other Citations: (2000)LCN/0735(CA)