Chief Ajayi Olowoye Alejo Awe & Ors V. Olajide Akinlolu Ademehinti & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MOHAMMED AMBI-USI DANJUMA, J.C.A.
This appeal is against the judgment of Hon. Justice C. E. T. Ajama of the High Court of Justice, Ondo State sitting at the Akure Judicial Division, delivered on 25th of March, 2013.
The respondents herein who were plaintiffs at the Lower Court commenced this action against the defendants/appellants by a writ of summons dated and filed 07/06/2010 and a statement of claim dated 02/06/2010. The plaintiffs filed an Amended Statement of Claim dated 01/09/2011 and filed 27/09/2011 claiming jointly and severally against the defendants for the following reliefs:
a. A DECLARATION that the plaintiffs are entitled to the grant of Certificate of Statutory Right or Occupancy over the piece or parcel of farm land lying, situate and being at Ona-Ule Ilere Akure South Local Government which parcel of farmland is otherwise known and called Odo-Igbodudu, Oko-Okuta near Omolegan land, Oko-Okuta Alahere and Oko Aarin which farmland is bounded on the North by late Bayo Omolegan farmland, South by Umojo stream East by Omolegan farmland and late Ayodele Alejoawe farmland, west by Ona-Ule (Road) and at
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Oke-Ehinkunle I, Oke-Ehinkunle II bounded on the North by Ibukun Agbakarin Cocoa farmland, South by one Ona Odo Oko, West by Ona-Ule, East by Omolegan/Late Oyedele Cocoa farmlands.
b. N250,000 damages for trespass.
c. N100,000,000 damages for assault/injuries committed on the person of 1st plaintiff.
PARTICULARS OF INJURIES
(i) Bruises over the back
(ii) Tenderness over the right hip
(iii) Fractures of the right clavicle close to the acromioclavicular joint.
PARTICULARS OF DAMAGES
a. Inability to use the right leg effectively (leaping).
b. Inability to stand erect.
c. Inability to perform physical exercises activities, viz jumping, jogging, running, driving, climbing etc
d. Inability to use the right hand for any physical activities etc.
e. Emotional and mental disturbance etc.
f. Loss of livelihood.
d. AN ORDER cancelling, nullifying, setting aside, any sale or sales purportedly made or carried out by the defendants their servants, agents or privies on, over or upon the said parcel or farmland subject – matter of this action, property of the plaintiffs.
e. AN ORDER OF PERPETUAL
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INJUNCTION restraining the defendants, whether by themselves, servants agents, privies or whomsoever from trespassing, remaining interfering in whatever manner alienating, claiming the plaintiffs’ parcel of farmland lying situate and being at Ona-Ule Ilere Akure South Local Government which parcel of farmland is otherwise known and called Odo-Igbodudu, Oko-Okuta near Omolegan land, Oko- Okuta Alahere and Oko Aarin which farmland is bounded on the North by late Bayo Omolegan farmland, South by Umojo Stream East by Omolegan farmland and late Ayodele Alejoawe farmland, West by Ona – Ule (Road) and at Oke – Ehinkunle 1, Oko – Ehinkunle II bounded on the North by Ibukun Agbakarin cocoa farmland, South by one Ona Odo Oko, West by Ona Ule, East by Omolegan/late Ayodele Farmlands.
The defendants responded by filing a Further Amended Statement of Defence and counter claim dated 13/02/2012 and filed 25/04/2012 against the plaintiffs praying as follows:
a. A declaration that the defendants’ counter-claimants are entitled to the grant of Certificate of Statutory Right of Occupancy over the piece or parcel of farmland lying, situate and being at Ona Oko Odo left
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side of Ilere community bounded on the right by Elere Olagboyegun farmland, on the left by flowing River/Okesi farmland, on the top by lsomo farmland/flowing River, on the Bottom by Odeyemi Farotimi Farmland.
b. N50,000,000 damages for trespass
c. N150, 000, 000 damages for assault committed on the person of the 1st defendant.
d. AN ORDER PERPETUAL INJUNCTION restraining the plaintiffs whether by themselves, servants, agents, privies or whomsoever from trespassing, interesting in whatever manner laying claim to the defendants parcel of land lying situate at Ona oko odo bounded on the right by Elere Olagboyegun farmland, on the left by flowing River/Okesi farmland, on the top by Isomo Farmland/Flowing river, on the bottom by Odeyimi Farotimi farmland.
In the course of the proceedings the plaintiffs called seven (7) witnesses while the defendants had three (3) witnesses who testified by giving evidence before the Court. Written addresses were filed and exchanged between the parties; defendants afterwards replied on points of law and judgment was entered in favour of the plaintiffs on the 25/3/2013.
Dissatisfied with the trial Court’s
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decision, the appellants herein approached this Court vide a notice of appeal dated 22/04/2013 and filed 23/04/2013 containing ten (10) grounds of appeal.
In line with the rules of this Court, appellants filed a further amended appellants? brief of argument dated 25/11/2015 and filed 27/11/2015 and was deemed 03/03/2016. Respondents? brief dated 19/10/2013 was filed on the 21/10/2013 while appellants? reply brief is dated and filed 04/11/2013.
Following a motion filed on 02/12/15 which was granted by this Court on 03/03/16 the respondents in view of the notice of cross appeal filed with the leave of this Court on 30/05/15 filed a respondents?/cross appellants? brief of argument dated 16/11/15 and filed 02/12/15 and deemed 03/03/16.
Appellants?/cross respondents? brief of argument dated 25/12/16 was filed on 03/03/16. Counsel on both sides adopted their briefs of arguments on 25/5/2016.
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Appellants formulated the following six (6) issues for the determination of the appeal:
i. Having regard to the plaintiffs’ traditional evidence whether the learned judge properly directed himself when he adjudge
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that the plaintiffs discharged the onus and standard of proof in establishing title to the disputed land, grounds 1, 2,3 & 4.
ii. Whether or not the respondents proved boundaries to which the claim was attached, ground 5.
iii. Having regards to the appellants’ pleadings and evidence at the trial, whether or not the appellants proved their case in accordance with law to entitle them to the reliefs claimed ground 6 & 10.
iv. Whether or not the award of Seven Hundred and Fifty Thousand Naira (N750,000) as damages for trespass is based on legal principles in awarding damages, ground 7.
v. Whether the learned judge properly directed himself as to the burden of proof in respect of the award of N5,000,000.00. Having regards to the allegation of crime in issue and the fact that the prayers placed before the Court is not specific on items of damages.
vi. Whether or not the award of Four Hundred and Fifty Thousand Naira (N450,000.00) and One Hundred and Fifty Thousand Naira (N150,000.00) respectively are just and properly awarded according to legal principles, ground 9.
The respondents on their part distilled four (4) issues for the
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determination of the appeal to wit:
i. Whether the trial Court is right in holding that the respondents have satisfactorily proved their case and entering judgment in their favour.
ii. Whether the trial Court is right in dismissing the counter – claim of the appellants.
iii. Whether the trial Court is right in award of N5, 000. 000. 00 (Five Million Naira) damages in favour of the 1st respondent for assault resulting in injuries on the 1st respondent.
iii. Whether the award of N750,000.00 damages for trespass in favour of the respondents by the trial Court is justified and proper, based on correct legal principles and whether the award of the sum of N450,000 and N150,000.00 as costs in the suit are justified.
I consider the issues as raised by counsel on both sides to be similar. I shall therefore, be adopting the issues formulated by the appellants for the determination of this appeal; they are so adopted.
ARGUMENTS:
ISSUE ONE:
Having regard to the plaintiffs? traditional evidence whether the learned judge properly directed himself when he adjudged that the plaintiffs discharged the onus and standard of proof in
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establishing title to the disputed land. (Ground 1, 2, 3 and 4)
Learned counsel for the appellants began his submissions by referring to Paragraphs 1, 4, 5, 7 , 8,9, 10, 11 and 13 of the plaintiffs’ amended statement of claim as relevant to the 1st issue herein.
He argued relying on the case of Iroagbara V. Uformadu (2009) 11 NWLR (pt. 1153) Page 587 @ 591 that the respondents relied on grant in establishing their title to the land in dispute and thus ought to plead and lead in evidence the root of their title. That the respondents are bound to plead.
a. Who founded the land
b. How the founder founded the land
c. The particulars of the intervening owners through whom he claims. He cited the following cases: Anyanwu V. Mbara (1992) 5 NWLR (Pt.242) 386 @ 390: Akinloye V. Eyiyiola (1968) NMLR 92; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 and Adejumo V. Ayantegbe (1989) 3 NWLR (Pt. 110- 417)
It is learned appellants’ submission that Elere of Ilere being a mere title and non juristic is incapable of granting title. That the plaintiffs did not plead names of persons on whom the title to the disputed land devolved since it was
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founded. He is of the view that the successor in title as in this case must mention the names of the grantor in order to prove the grant. That failure to so do offends the law.
Counsel argued that it was not sufficient for the PW2, the Elere of Ilere to say that his predecessors granted the land in question. That where title to a disputed land is put in issue, the title must be proved. Counsel referred to: Alade V. Awo (1975) 4 SC 215: Piallo V. Tendo (1976) 12 SC 31 : Kaho V. Woluchem (1985) (Pt.41) 616 and Olanma V. Youdubagba (2006) 2 NWLR (pt. 964) 337 @ 359.
That PW2’s evidence in Chief that Elere gave the land to Akinlolu Ademehinti was contradicted by his evidence under cross – examination to the effect that Elere gave the land to Alejo Awe and Adopetu. He referred to PW2 and DW2’s evidence on pages 58 – 60 and 78 of the record respectively to contend that the learned trial judge did not asses properly the evidence on the record. He cited Mogaji & Ors. V. Odofin & Ors. (1978) 4 SC 91 @ 94 – 96. Learned counsel contended that where a material contradiction exists, the Court cannot pick and choose which set of the evidence to
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believe. That the learned trial judge erred in his conclusion that the defect in the evidence of the plaintiffs has been cured by the evidence of PW2.
Learned counsel submits that the trial judge did not place side by side the evidence of PW2 and those of DW2 and DW3 but rather chose that of PW2 in arriving at his decision. His view is that the totality of the parties’ evidence was not examined. He urged the Court to so hold relying on the following authorities: Obadara V. The President Ibadan West District Grade ‘B’ Customary Court (1964) 1 ALL NLR 331: Onwunalu V. Uche (supra): Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382 @ 452 – 453 Paragraphs G – C.
Learned counsel aver that claimants must prove their case with credible evidence and not rely on the weakness of the case of the defendant; they have the primary burden of proving their case. That he who asserts must prove. He relied on:
– Healthcare Products (Nig.) Ltd. V. Bazza (2004) 3 NWLR (Pt.861) 582 @ 605-606.
– Atunwa V. Cadenike (1998) 7 NLWR (Pt. 557) 221 @ 228 – 227
– Gbafe V. Gbafe (1996) 6 NWLR (Pt.455) 5117.
Counsel submits that it was not judicially
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proved that it is the Elere of Ilere that has the authority to grant land. He urged us to hold that the trial Court’s decision on the above issue was unreliable.
It is also appellant’s contention that they have proved possession and ownership of the land in dispute. That they were in possession when the respondents’ mother begged to occupy a portion of the land as Customary tenants. Referring to the evidence of DW1, DW2 and DW3 on the record, counsel argued that a judgment must not only demonstrate a full and dispassionate appraisal of all the issues raised in the pleadings and proved by evidence but must also flow logically from the findings on such issues. He referred to Polcarp Ojogbue & Ors. V. Ajie Nnubia (1972) 1 ALL NLR (pt.2) 226.
Counsel went further to submit that the respondents having not pleaded the names and history of their grantor, have equally failed to establish their case. He contended also that the trial Court?s decision on acts of ownership in favour of the plaintiffs was wrong. He is of the view that where traditional evidence failed, that the respondents’ root of title also collapsed and the Court’s order, he submits
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would be that of dismissal. He cited Alhaji Karimu Adisa V. Emmanuel Oyinwola & 4 Ors. Vol. 1 L. L. A. C. 1 @ 4: Odofin V. Ayoola (1984) NSC 711 @ 731. Learned counsel’s argument on acts of possession and ownership as evidence of title to land is that a party relying on same must show that such acts not only extend over a sufficient length of time but that they are numerous and also positive to warrant the inference of exclusive ownership. He stressed that the party must show:
a. That from the overwhelming number of such acts he must have regarded the land as his own; and
b. That from the nature of such their openness and their being exercised without force or stealth any person asserting title would have known of such an exercise and be expected to assert his contrary title. He referred to: Anyanwu V. Mbara (Supra): Ekpo V. lta 11 NLR 68 @ 69: Pairo V. Tenalo (Supra).
Counsel urged us to hold that the respondents’ title had collapsed and that the trial Court’s decision on acts of long possession was in error.
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In reacting to this issue, learned counsel for the plaintiffs’/respondents submits that the evidence of PW1, PW2, PW3, PW4,
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PW5, DW1, DW2 and DW3 show that the respondents successfully proved by clear, cogent, credible and satisfactory evidence the area and identity of the farmlands in dispute. He referred to: Kyari V. Alkali (2005) 2 FWLR (pt. 60) 145 @ 149 and Nwokidu v. Okamu (2010) ALL FWLR (Pt. 522) 1633 ? 1637.
Respondents placed heavy reliance on their pleadings to show that there is credible evidence supporting the learned trial Court’s conclusion in their favour; respondents’ counsel contended that the evidence given by PW1 was supported by the evidence of PW2 and which he believes established the respondents’ title to the land in dispute. In an effort to drive home his points, counsel referred to Paragraphs 7, 8, 9, 10, 11 of the amended statement of claim and the evidence of PW1, PW2, PW3, PW5, DW1 and DW2 as supporting the respondents’ evidence that they derived title to the land in dispute by grant from the original owner/founder of the farm land (Elere of Ilere).
That an action for declaration of title to land on grant, the grantor or his successor in title must be called to prove his title. Referred to: Ofume V. Ngbeke (1994) 4 NWLR (Pt.641) 746 @
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756.
On further reference to the case of Idundun v. Okumagba (1996) 9-10 SC 6 @ 227. Counsel argued that the respondents have proved their title to the land in dispute by satisfying one of the five ways of proving title law. He urged us to uphold the decision of the learned trial Court. That the pleadings and evidence of the respondents have established that it was the Elere of Ilere who founded the land, how it was founded and the intervening owners. That the Elere of Ilere, the founder off the Land in dispute as agreed by parties, being the traditional ruler and first settler has the sole authority to grant land to people in Ilere.
Counsel aver that the respondents? father and his wife and children cultivated the land undisturbed. That the respondents inherited the said land after the death of their father in 1996 and also had undisturbed possession until 2007 when the appellants came in.
Learned counsel went further to contend that appellants did not deny the existence of the title of Elere of Ilere and that issues were not joined on the pleadings pertaining to the non juristic nature of the title (Elere of Ilere). That DW1 and DW3
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acknowledged in evidence the Elere of Ilere (PW2) who testified that his successor in title granted the farmlands in question to the father of the respondents. That DW1 and DW2 also acknowledged in evidence that the Elere of Ilere is the paramount traditional ruler and founder of Ilere town. That the present Elere of Ilere who is recognized as the traditional authority of the community that grants land, testified that his successor in title granted the disputed farmland to the respondents’ father. He referred to Exhibits J and M. Counsel continued by urging the Court to reject the appellants’ arguments on the non- juristic personality of the title “Elere of Ilere” as incapable of granting title to land, having acknowledged same.
On the trial Court judgment, learned counsel submitted that the decision was on the premise that the respondents? father and themselves have been on the land in dispute and did exercised ownership extending over sufficient length of time numerous and positive to infer that the respondents are the true owners, He urged us to so hold. Referred to pages 140 ? 141 of the record that the learned trial Court did arrive
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at its decision by also examining Exhibits A, B, C, D, E, F, G, H and K on the record.
Counsel further urged the Court to uphold the trial Court’s decision.
The appellants in their reply brief challenged the evidence of the PW2 that they derived title from their forefathers, the Elere of Ilere. Learned appellant’s counsel referred to page 11 of the record contending that PW2 under cross – examination did admit that he has a maternal relationship with Elere. That it is only the DW3 who is a direct son of Elere Farotimi that can lay claims to the past Eleres as his forefathers. That it does not accord with customs and traditions of Yoruba land for mother’s child from a particular family to lay claims to paternity in another family.
On the evidence of PW1, PW2, PW3, PW5, DW1 and DW3 relied upon by the respondents, that it is a notorious fact that Elere of Ilere is a title of the holder of office of Ilere and that it is ascribed to all the holders who bear different names.
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That the respondents must show by name which of the past Elere granted them land. Relying on the case of Iro – Agbara V. Ufomadu (Supra), learned counsel submits that the
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respondents must state the founder of the land, how he founded same and particulars of intervening owners through unbroken chain of succession.
On the case of Ofume v. Ngbeke (Supra) cited by the respondents establishing that grantor or his successor in title in title must be called to prove his root title, appellants? counsel contended that the word ?prove? indicate that it is not sufficient to call the grantor or his successor in title but must be called to establish his root of title. That appellants? evidence as to settlement and their root of title is consistent. Appellants referred to the evidence of DW3 to aver that PW2 does not know the history of Ilere which according to appellants, PW2 admitted in evidence under in evidence under cross-examination. On the award of costs by the trial Court, learned counsel argued that costs awarded by the Court in a judgment form part of Nigeria, 1999. He urged us to hold that the respondents failed in proving title to the disputed land claimed.
RESOLUTION
The law is trite that the standard of proof in Civil cases is discharged on the balance of probabilities or the preponderance
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of evidence. Where parties to a suit give evidence on their claims before the Court, the trial judge has the duty of weighing the evidence by resorting to the imaginary scale of justice. S.S. Alagoa. JSC in Odutola V. Mobogunje (2013) 1 SCNJ 175 @ 216 cited the case of Mogaji V. Odofin (1978) 4 SC 91 @ 94 where the Apex Court held to wit: ” —- Before a judge before whom evidence is adduced by parties in a Civil case comes to a decision as to which evidence he believes or accepts and to which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side of the scale and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality of the probative value of the testimony of those witnesses.”
It is established principle of law that traditional history is the first mode of proof of title to land. See Idundun V. Okumagba (1976) 10 SC 140.
It is a primary duty on the plaintiff who claims a declaration of title to land
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to show the Court clearly the area of the land to which his claim relates so that the land can be identified with certainty. See Section 131, 132 and 133 of the Evidence Act, 2011.
In the instant case, the first plaintiff at the trial Court gave evidence and testified as PW1 along six (6) other witnesses. The other plaintiffs are his brother and a sister. They gave the description of the disputed land as a parcel of farm land situate and being at Ona – Ule Ilere Akure South Local Government known as Odo – lgbodudu, Oko – Okuta near Omolegan land, Oko – Okuta Alahere and Oko Aarin bounded on the North by Umojo Stream, East by Omolegan farmland and Late Ayodele Alejoawe farmland, West by Ona – Ule (Road) and at Oke – Ehinkunle I, Oke – Ehinkunle II bounded on the North by lbukun Agbakarin Cocoa Farmland, South by One Ona Odo Oko, Next by Ona Ule, East by Omolegan/late Ayodele Cocoa farmlands.
This is contained in the plaintiffs’ amended statement of claim on pages 36 – 41 of the record and also PW1 ‘s evidence before the Court on pages 50 – 56 of the record.
Plaintiffs traced their Customary Title to one Akinolu Ademehinti, their father whom
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the said land was first given to by the then Elere about 100 years ago. The record shows that Akinlolu Ademehinti had been farming on the said farm land until 1996 when he died and the subsequent inheritance by the plaintiffs who continued to farm on the farm land devoid of any encumbrance or disturbance from the defendants? family until 2007, about 11 years after the death of Akinlolu Ademehinti.
PW2, the current Elere of Ilere who is recognized by witness on both sides, to be the custodian of all land in Ilere, testified before the Court that his predecessors granted the disputed land to Akinlolu Ademehinti, the 1st plaintiff?s father. PW3 a 100 years old wife of Omelagan who by the evidence on record is well known to both sides testified that she shares boundary with the plaintiffs. Her evidence on page 60 of the record is hereunder excerpted: ?my farm is known as Omolegan farm. I share boundary with the plaintiffs. I am the wife of Late Omolegan. We share boundary on Mojo River side and at the foot path to the farm on Omolegan farm.?
Substantially, the above evidence went unchallenged and uncontroverted and which
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supports the plaintiffs’ evidence relating to ownership and possession of the land in dispute, having cultivated same undisturbed until 2007 when defendants began laying claims to the land. The question is, where were the defendants during the life time of Akinolu Ademehinti who died at 80 years in 2006? Where were they about eleven years after, until 2007 before coming on the land, a period the plaintiffs continued cultivation of the said land.
The evidence of PW5 was also not discredited, it sailed through unchallenged. This witness testified that at the death of Akinolu Ademehimti, he and two others were nominated by the head of the family to inspect the farms left behind by the deceased. His evidence is hereunder quoted:
When Akinlolu died 3 of us met the people at Ilere to inspect the farms. These people are 1. Olomi Adenira, 2. Adewole Adeniyi and myself. The head of the family who sent us is Olulayo Ademehinti. Nobody opposed our visit and there was no other person who laid claims to the farms. The defendants were there but they made no objection, or adverse claim.?
It is on the record that when trouble
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started in respect of the land in dispute, the matter was taken before the present Elere of Ilere who arbitrated on it and ruled that the land belong to the plaintiffs. He also gave evidence before the Court (PW2) in that respect. The appellants herein took the matter before his Royal Highness the Deji of Akure who also arbitrated on it and ruled that the plaintiffs are the true owners of the land in dispute.
PW7 who was the secretary to the Deji of Akure testified before the learned trial Court and tendered Exhibit ‘M’ the decision passed by the Deji of Akure.
The law is trite that a party relying on arbitration under Customary law should plead and convincingly prove that those who presided over the dispute are competent to so do under the law. I feel that the two arbitrations held in respect of this matter were competent. I am convinced by the pleadings and the evidence on record that the plaintiffs were not only in exclusive possession, and enjoyment of the land in issue, they have in my view proved acts of ownership extending over a sufficient period of time numerous and positive enough to warrant the inference of true ownership. I
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completely agree with the trial Court where it held on page 139 of the record that; “First there is no evidence that Alejoawe gave land to Odagbabodo. Secondly, Atandara is not shown to have power to grant land as alleged. Put side by side with the story of the plaintiffs that land was granted to Akinolu Ademehimti by the Elere of Ilere and the confirmation of the defendants that it is the Elere that has authority to grant land to those in occupation of the land at Ilere including the forefather of the defendants Alejoawe; the story of the plaintiffs looks to” credible and I am satisfied that the plaintiffs have proved the title to land by traditional evidence.”
This is further supported by the decision of this Court in the case of Duruosihimiri V. Duruodunze (2001) 9 NWLR (pt.717) 244 @ 248 ratio 1 that: proof of traditional evidence does not comprise just cataloging one’s dead ancestors and stating that each of them farmed the land in dispute. Rather, it is the weight of evidence that matters and in proving it, convincing evidence has to be adduced.
It is not enough for the appellants herein to state that the land in question was inherited from
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their forefathers without supporting it with clear and convincing evidence. The Elere of Ilere to my mind is not just a mere title as adumbrated by the appellants but a permanent office with powers and authority recognized by the people to be exercised by the occupant as the custodian of the Ilere land.
It is established law that a party relying on evidence of traditional history must plead his root of title. The learned trial Court accepted the traditional evidence of the plaintiff as more probable on the preponderance of evidence. I have gone through the evidence on record and the pleadings and I am also convinced that the plaintiffs? evidence is more probable than that of the defendants. They have been able to prove through evidence and witnesses their root of title thus, acts of ownership and enjoyment of the land in dispute. The Supreme Court held in Oyadare v. Keji 21 NSCQR 58 @ 73 per Niki Tobi, JSC to wit: ?It is good law that a plaintiff who succeeds in proving acts of possession can obtain judgment claiming trespass. Acts of possession and enjoyment of land could be evidence of ownership or of Right of Occupancy. See Okechukwu v.
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Okafor (1961) 1 ALL NLR 685. Where a plaintiff proves sufficient acts of possession, the burden is thrown on the defendant under Section 145 of the Evidence Act to prove the contrary. In order to get judgment, the defendant has the onus to rebut the evidence of the plaintiff. Acts of long possession and enjoyment of land can be prima facie evidence of ownership of the particular piece of land within reference to which such acts are done.
I hold that the defendants failed in their effort to rebut the plaintiffs’ evidence on the record. The evidence of all the witnesses including the defendants’ witnesses acknowledging the authority of the Elere of Ilere to grant land supports the case of the, plaintiffs. Infact, DW3 confirmed under cross – examination that the plaintiffs? father Akinlolu Ademehinti was a farmer who had farmland at Ilere and farmed on the land for about 20 years. The evidence of plaintiffs? witnesses relate and are uncontradictory.
This issue is resolved in favour of the respondents and against the appellants.
ISSUE TWO:
WHETHER OR NOT THE RESPONDENTS PROVED BOUNDARIES TO WHICH THE CLAIM WAS ATTACHED (GROUND 5)<br< p=””
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Learned appellants? counsel pointed out Paragraph 4 of the plaintiffs? amended statement of claim as being relevant to this issue. That the boundaries mentioned in the above paragraph were denied in Paragraphs 1, 5 and 27 of the defendants? further amended statement of defence and counter claim . He referred to Paragraph 26 of the said statement of defence and counter claim where the defendants stated their boundaries and praying the Court to declare same in their favour. That the evidence at the trial Court shows the boundaries claimed by the plaintiffs differ with those of the defendants. He submits that the cocoa farm claimed to have been granted to the plaintiffs’ father by the Elere of Ilere was the one in dispute and not the ones the plaintiffs’ father bought.
Counsel referred to the plaintiffs’ evidence on page 55 of the record. He cited the case of Nwabuoke V. Onwordi (2006) ALL FWLR (Pt. 331) 1236 @ 1239 to contend that a party seeking declaration must plead and lead evidence of title to a defined area of land. That the Court cannot choose and pick among various boundaries which one relate to the grant.
Counsel is of the view that the boundaries claimed by the plaintiffs are vague. He urged the Court
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to hold that plaintiffs did not establish boundaries upon which a claim for declaration can be attached. He referred to the cases of Baruwa Ogunshola 4 WACA 159; Olusanmi v. Oshosona (1992) 6 NWLR (Pt. 245) 22: Onwuka v. Echala (1989) 1 NWLR (Pt. 96) 182 and Ugbo v. Aburime (1994) 8 NWLR (Pt. 360) 1.
The respondents on their part argued through their counsel that they established with certainty the identity of the disputed land with defined boundaries upon which the trial Court granted them declaration sought. They prayed the Court to uphold the lower Court?s decision.
Learned counsel referred to the respondents? pleadings Paragraphs 3 and 26 (a) of the Amended Statement of Claim in support of his arguments above, describing thee area of the land with boundaries. He also referred to PW1?s evidence on pages 1, 2 and 3 of the record on same issue, that he (PW1) was not even cross-examined on the identity of the farms and their boundaries. Relying on the authority of Adeleke v. Akanji (1994) 4 NWLR (Pt. 341) 715 @ 725.
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Counsel argued that PW2, the Elere of Ilere testified that he knew the land in dispute and PW3 also gave
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evidence before the Court that she shared boundaries on two sides of the farm lands were not cross – examined.
That PW5 on page 15 of the records gave evidence of the location of the land in dispute. He said DW1 knows the land in dispute but gave a contrary description while DW2 testified knowing the disputed land. He went further that DW3 testified under cross – examination that he knows the PW3 and that she has boundary with Akinlolu Ademehinti (the respondents’ father).
Learned counsel submits that the evidence of PW1, PW2, PW3, PWs, DW1, DW2 and DW3 clearly established boundaries/identity of the land upon which respondents sought title. He referred to the trial Court?s position on page 138 of the record, urged this Court to so hold.
RESOLUTION
In a claim for declaration of title to land, the law places onus on the plaintiff to prove title to a defined area to which a declaration can be attached. See Nnabuife v. Nwigwu (2001) 9 NWLR (Pt.719) 710 CA; Odesanya v. Ewedemi (1962) 2 SCNLR 23.
The plaintiffs pleaded the description of the land in their amended statement of claim Paragraph 26(a) on page 36 of the record. PW1 who is
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the 1st plaintiff while giving evidence before the Court, further identified the land on pages 50-51 of the record and went ahead to buttress that the said land which was given to their (Akinlolu Ademehinti) by the Elere of Ilere was a virgin land which was deforested and had crops like cocoa, kolanut, palm trees, bush mango, bitter cola, pineapples, yam, cocoyam, plantains, banana, etc planted on it by their father. PW1, PW2, PW3 (boundary person to the plaintiffs), PW5 and DW1, DW2 and DW3 all claim to know the land in dispute. While PW1 described the land as “——– in the South by Ona – Odo Oko (Road) in evidence and in their pleadings, DW1 who is the 1st defendant and DW3 described the land as Odo ? Oko also in evidence. See pages 70 -77 of the record. DW2 simply claimed he knows the land in dispute.
From the evidence on record therefore it is clear to me that the land in dispute is known to all the parties. I completely agree with the position of the lower Court where it held on page 138 of the record that; “Here the plaintiffs described with clarity the identity of the farms of their father. The defendants, through DW1, DW2 & DW3 are
29
quite aware of the land area in dispute even though they described it using different terms”.
This Court decided in the case of Iwuno V. Dieli (1991) 126 in line with the trial Courts position above that “where parties, from the evidence, are clear as to identity of the land in dispute, the fact that different names are given to it or the area it is located cannot affect the case”.
I hold that the above decision applies in this case more so that the law has established boundary dispute to be one and the same thing as dispute over title or ownership of land in dispute. lt was held per Tabai, JSC in the case of Tanko V. Echendu (2011) 18 NWLR (Pt. 1224) 253 @ 255 SG that;
“Even if it is accepted that it is boundary dispute it is, in my considered opinion, one and the same thing as a dispute over title or ownership of the land in dispute. I am unable to find the distinction which the Court below tried to make….”
Thus, I am unable to fault the position of the learned trial Court that the land in question is known to both sides, considering the pieces of evidence on the record. The land was clearly described and in fact, by the position of the
30
Apex Court in Tanko V. Echendu (Supra). plaintiffs’ title is further supported.
This issue is resolved for the respondents and against the appellants.
ISSUE THREE
HAVING REGARDS TO THE APPELLANTS’ PLEADINGS AND EVIDENCE AT TRIAL, WHETHER OR NOT THE APPELLANTS PROVED THEIR CASE IN ACCORDANCE WITH LAW TO ENTITLE THEM TO RELIEFS CLAIMED (GROUNDS 6 & 10)
Learned counsel is of the contention that the appellants? case having regard to the pleadings on the record, has met the requirements of pleading title by settlement. That the appellants were able to show through their pleadings how plaintiffs? father came into the disputed land through the appellants ancestors. That the relationship between Odogbo, the mother of Ademehinti and Otundara, the wife of Late Alejo Awe who is the 1st, 2nd and 4th appellants?ancestors, is not in dispute and that when linked with both parties is sufficient to show the circumstances which brought the respondents on the land.
?
Learned counsel aver that the 3rd defendant ought not to be joined as a
31
party, as according to him there was no cause of action against him. That the evidence he gave before the Court as on the record is believable and should be accepted. He referred to pages 42 and 44 of the records to show why the 3rd defendant was joined as a party in this suit. Counsel submits that evidence was led in support of the appellants’ pleadings.
He referred to PW2’s evidence under cross – examination to contend that his evidence lend weight to the appellants’ case. He is of the view that the appellants by their pleadings and the evidence proffered have discharged the burden of proof placed on them by law in respect of their claims for title.
He submits that the onus is on the respondents to establish title and not rely on the weakness of the defendants’ case. He relied on the following authorities: Oyenevin V. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265 at 271 and Eva V. Olapade (2011) 11 NWLR (Pt. 1259) 505 @ 508 – 509.
?
Learned appellants’ counsel further argued that the appellants are entitled to the reliefs sought in the further amended statement of defence and counter claim having proved traditional evidence by pleading the founder of
32
the land, how the land was founded and particulars of the intervening owners through whom the appellants claimed. He cited: Anyanwu V. Mbara (Supra): Akinloye V. Eyiyiola (Supra): Olujinle V. Adeagbo (Supra) and Adejumo V. Ayantegbe (Supra) in support of his arguments.
Relying on Section 124 of the Evidence Act, 2011 counsel disagrees with the position of the learned trial Court that where the counter claimants’ claim succeed, no award can be granted for trespass and assault as the counsel did not state whether the damages is in Naira, Dollars etc. That Naira is a Nigerian Legal Tender and a mistake of counsel should not be visited on the litigants. He urged us to so hold.
The respondents responded to this issue in their issue No. 2.01(b) by urging this Court to uphold the learned trial Court’s decision on the basis that the evidence given by the defendants in respect of their root of title is inconsistent unreliable and unsatisfactory to ground the counter claim of the appellants. That they did not lead evidence on title by settlement.
?
Counsel excerpted the evidence of DW1 and DW2 on pages 22 and 29 of the record respectively, as follows:<br< p=””
</br<
33
DW1 – “Our forefather Alejoawe a hunter from Erin -Oke in Ekiti land got to llere where he met llere Olagboyegun who gave him land or the left hand side to the farm”.
DW3 – lt was my father Olagboyegun that gave the land to Alejoawe for farming purpose.?
Respondents? counsel contended against the appellants? assertion that they (appellants) led evidence in support of title by settlement. That evidence led must be in line with pleaded facts.
On the counter claim of the defendants counsel agreed that the position of the learned trial Court on pages 144-145 of the record was correct. That the figures were not stated in words to enable the Court properly assess the claim of the appellants. That is the duty of counsel to ensure pleadings conform with the rules. He referred to Order 25 Rules 4(1) of the Ondo State High Court Rules, 1987 which states to wit?.. dates, sums and number shall be expressed in figures but may be expressed in words.?
?
It is counsel’s view that learned appellants’ counsel was under a duty to state clearly in words what is claimed and in the proper denomination. That the error herein relates
34
to the conduct of the case and litigants, says he, are bound by the conduct of their counsel. He relied on the case of Bello V. A. G Ovo State (1996) NSCC (Pt. 11) 1257 where it was held that: “The day the Courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the obtrusive genesis of the unwitting enthronement of injustice by the Courts itself by default.”
The Court was further referred to the cases of Akanbi V. Alao (1983) 3 NWLR (Pt. 108) 171 @ 118.
Learned counsel submits that the trial Court’s position that it does not know if the claimants’ claim was in pounds sterling, Dollars or a Nigerian Naira or in Tubers of yam was proper and not misconceived.
Appellants replied on this issue that the evidence they presented before the Court were not inconsistent. On the issue of settlement counsel referred to pages 24 and 25 of the record where he excerpted DW1’s evidence under cross – examination to wit: Both Olagbogun and Alejo – Awe founded the settlement today known as llere, he came hunting from Erin ? Oke in Ekiti – land but he was a co- founder of llere. I do not know
35
when my forefathers first settled at llere. I was only told by my father.
Learned counsel further referred to Paragraphs 7 and 8 of the statement of defence and counter claim in support of their arguments. That it was clear how the appellants’ forefathers came and settled at llere, that facts relating to the settlement on the part of llere must be made clear to the Court. Submits that it was by reason of the appellants’ settlement that the family has always held the number two potion with the Adopetu title.
That the pleading relating to settlement and the appellants’ evidence on root of title were consistent. Submitted that parties are bound by their pleadings and that evidence led on unpleased matters go to no issue. He referred to the cases of:
Ojo V. Kamalu (2005) 18 NWLR (pt. 958) 523 @ 536
Adebisi V. Oke (1967) NMLR 64.
Orizu V. Ayaegbunam (1978) 5 SC 21
Kayode v. Odutola (2011) 11 NWLR (pt. 725) 659.
Woluchem v. Gudi (1981) 5 SC 291
Ewaremi v. ACB Ltd. (1978) 4 SC 99.
Udechukwu v. Okwuka (1956) SC NLR 189.
RESOLUTION:
The arguments by the appellants on this issue is that on the pleadings and the
36
evidence before the Court, they have proved traditional evidence by showing the Court the founder of the land in dispute, how it was founded and the particulars of the intervening owners, entitling them to the reliefs sought. I feel that issue one above where I resolved that appellants are by law required to furnish the Court with cogent and reliable evidence in support of their inheritance through their lineage has taken care of this issue. The evidence of DW1 and DW3 have been found to be inconsistent regarding their lineage in an effort to prove their root of title.
While DW1 gave evidence that the first Elere is Odogboyegun who handed down to Esubi Adebiyi who handed over to Farotimi the father of the DW3 before it finally got the current Elere, the PW2, DW3 confirmed under cross – examination that Adegboyegun is the first Elere but went ahead to testify that there were other Eleres before his father.
?
Hereunder is an excerpt of DW3’s evidence on page 78 of the record. “—–Olagoyegun is the first Elere. Olabosimi was an Elere but I do not know him. Okerusolo was also Elere but I do not know him. I do not know Araromiro. There were other Eleres
37
before my father.”
This witness (DW3) also testified in evidence as on page 77 of the record, on one hand that Farotimi was his father and in another breath he said “it was my father Olagboyegun that gave land to Alejoawe for farming purposes.?
His evidence as to the number of Eleres that ever existed is not only contrary or inconsistent with the evidence of DW1 but with the pleadings and even Paragraph (e) of the particulars of ground six(6) of the grounds of appeal. The learned trial judge exhaustively dealt with this issue in his judgment on pages 138 and 147 of the record wherein he found the evidence given by the respondents in this regard to be more probable than that of the plaintiffs, which I also believe having thoroughly gone through the record. To avoid repetition therefore, I adopt my position in issue No. 1 above.
It is established law that where findings of the trial judge are not perverse, an appellate Court judge cannot interfere with the findings. See Oyadare v. Keji (supra); E.A.T.B. Ltd v. P.I.C. Ltd. (2013) 12 SCNJ @3.
?
I am not convinced by the arguments of the learned counsel for the appellants that they have
38
successfully proved their root of title to the land in dispute by showing the founders, how the land was founded and the intervening owners considering the inconsistencies earlier mentioned in the evidence of the witnesses.
On the issue of trespass as contended by the counsel for the appellants, the law is trite that trespass is founded on possession. I have read the evidence on record and the judgment of the learned trial Court and I am satisfied that justice has been done to this issue by the learned trial judge.
I hold that the plaintiffs did prove better root of title than the defendants.
I also hold in respect of the other reliefs claimed by the appellants that the findings of the learned trial Court on pages 141 – 145 of the record was in order and same cannot be faulted.
This issue is resolved for the respondents and against the appellants.
ISSUE FOUR:
WHETHER OR NOT THE AWARD OF SEVEN HUNDRED AND FIFTY THOUSAND NAIRA (N750,000) AS DAMAGES FOR TRESPASS IS BASED ON LEGAL PRINCIPLES IN AWARDING DAMAGES (GROUND 7).
Learned appellants? counsel argued that the respondents herein must establish a better title before
39
they can be entitled to such damages. That the grant of Seven Hundred and Fifty Thousand Naira (N750,000.00) to the respondents by the trial Court was wrong. He urged us to hold that the respondents failed to establish a better title and hence not entitled to the grant claimed. Referred to the case of Amori v. Iyanda (2008) 3 NWLR (pt. 1074) 250-261.
In response to this issue, learned counsel for the respondents is of the firm view that there is overwhelming evidence before the Court which led it to arrive at its decision.
That the evidence before the Court upon which it based its decision was credible, reliable and uncontradicted. Counsel urged the Court not to disturb the trial Court’s position for reasons that respondents did prove their case entitling them to damages. He referred to the case of Okunrinmeta V. Mrs. Agitan (2002) FWLR (Pt. 100) 137 @ 138.
Counsel concluded on this issue by saying that a claim for trespass is rooted in possession and that the trial Court after a thorough review of the evidence before it was satisfied that the land in question was in the possession of the respondents, hence, proved a better title. He urged us to
40
so hold.
RESOLUTION.
I have resolved earlier that the plaintiffs herein have proved a better title to the land in dispute as against the defendants/appellants. In a claim for damages, what the law compensates for is the loss incurred by the claimants resulting from the wrong done them by the other parties (defendants in this case). The loss incurres by the plaintiffs must be linked to the alleged trespassers before claimant can succeed in his claim before the Court. See the cases of Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207; O.M.T. Co. v. Imafidon (2012) 4 NWLR (Pt. 1290) 332.
The learned trial Court held in its judgment on page 145 of the record that “The claim for trespass is assessed on the damage done to the plaintiffs’ farms and the economic crops and trees on the land. Exhibit K tendered show the extent of damage done to the property of the plaintiffs when the defendants trespassed thereon. I assess damage on the trespass of the defendants at N750, 000. 00 (Seven Hundred and Fifty Thousand Naira) Only.”
The alleged trespass complained by the plaintiffs against the defendants, especially the evidence of PW1 and Exhibit K tendered through the PW4 are impregnable. I find
41
that the assessment of damages by the learned trial Court is proper.
This issue is resolved in favour of the plaintiffs and against the defendants.
ISSUE FIVE:
WHETHER THE LEARNED JUDGE PROPERLY DIRECTED HIMSELF AS TO THE BURDEN OF PROOF IN RESPECT OF THE AWARD OF N5,000,000 HAVING REGARD TO THE ALLEGATION OF CRIME IN ISSUE AND THE FACT THAT THE PRAYERS PLACED BEFORE THE COURT IS NOT SPECIFIC ON ITEMS OF DAMAGES (GROUND 8).
On this issue, counsel for the appellants referred to the evidence of PW1 and PW6 and the pleadings to argue that allegation of crime has been set out and that respondents must prove same beyond reasonable doubt in order to succeed. He submits that despite the injuries complained about, there was no evidence of police investigation of the alleged crime or the evidence of payments for drugs or treatment at the hospital. He referred to page 54 of the record in order to buttress his point that only analgesic was administered to the patient. That analgesic was not sufficient for the treatment of fractures as described by the patient.
Learned counsel urged the Court to hold that the respondents are not entitled to the
42
award of N5, 000. 000 (Five Million Naira) having failed to prove the allegation of crime beyond reasonable doubt. Referred to Onuagulushi V. Ndu (2000) 11 NWLR (Pt.679) 517 @ 570: Famuroti V. Agbeke (1991) 15 NWLR (Pt. 189) 1: N. B. Plc. V. Adetoun Oladeii Nig. Ltd. (2002) 15 NWLR (pt. 791) 585 @ 594.
Appellants further submit that the prayer for damages sought were vague. That, prayer placed before the Court needed to be specific, decisive and precise. That, it is not the duty of the Court to embark on a voyage of discovery. He referred to Ozuah V. Ezeweputa (2005) 4 NWLR (pt. 915) 221 @ 241.
That it was not certain whether the damages claimed were special or general damages. He urged the Court to hold that the trial Court erred in granting N5, 000. 000. 00 as damages. Counsel relied on the case of Gbafe V. Gbafe (supra) to stress that the onus of proving a particular fact is fixed by the pleading.
?
On the other hand counsel for the respondents in an effort to establish the claim for damages herein referred to the evidence of PW1 wherein he testified on his ordeal in the hands of the appellants and how he sustained degrees of injuries. To
43
support the case of the PW1, counsel referred to the evidence proffered by the PW6, a medical doctor who confirmed treatment of the PW1 (1st respondent). He tendered Exhibit ‘L’, a medical report through this witness. That the evidence of PW1 and PW6 was not unchallenged in evidence and it was accepted by the learned trial judge. He urged us to so hold and referred to Audu V. Okeke (1998) 3 NWLR (pt. 542) 373 @ 38.
On the issue of allegation of crime, respondents’ counsel is of the contention that it was not directly in issue and that assault is both Civil and Criminal wrong. Counsel further referred to the evidence of PW1 and PW6 to contend that defendants did not deny the allegation of assault.
That in law the evidence of a single witness if credible and uncontroverted is sufficient and that evidence not contradicted or denied is deemed admitted. That the appellants herein neither denied the pleadings nor contradicted the evidence of PW1 and PW6 on the damages suffered. He urged the Court to so hold.
Counsel cited the cases of Ajibare V. Akomolafe (2013) ALL FWLR (Pt. 672) 1689 @ 17000 and Cappa & Dalberto Ltd. V. Akintilo Tilo (2003) 9
44
NWLR (Pt. 824) 49 @ 61.
RESOLUTION:
The prayers sought by the plaintiffs is for damages sustained as a result of the acts of the defendants. PW1 testified in evidence on page 54 of the record as follows: “On the 13th of March, 2010 l was on the farm when the defendants came to the farm and attacked me with their agents. They lay me flat on the ground and started beating me. I was admitted into the State Specialist Hospital Akure for injuries sustained – bruises on the back, tenderness on my right hip, I sustained injuries on my back, fractures on my right calved close to the acromioclavicular joint since then, I have not been able to walk erect or stand erect and I cannot engage in any physical exercise. I cannot use the right hand effectively for anything. I cannot drive anymore and I suffered both mental and psychological damages and loss of livelihood, also suffered hip dislocation so that I cannot walk on my feet rightly?..?
This evidence was neither challenged nor controverted during cross – examination and the trial judge believed and accepted same. Exhibit ‘L’ was tendered through PW6 who gave evidence that he attended to
45
the PW1 while on admission on his 3rd day at the hospital. This evidence was also not debunked.
In a matter such as this having, to do with personal injury suffered, there is no doubt that the agony and pain of the sufferer cannot be easily assessed being that it is deeply internalized in the sufferer. The trial Court is faced with challenges of seeing and observing such a pain and agony in order to be able to assess the damages suffered by the party claiming. The appellants? submissions on the evidence of PW6 cannot in my view stand or defeat the evidence on record.
It was held in the case of Ighosewe v. Delta Steel Co. Ltd. (2008) ALL FWLR (Pt. 410) 741 that ?Expert evidence of a medical doctor is not necessary to prove the effect of pain and suffering in a person neither is such evidence necessary in the consequence of any injury which can be visually observed by the Court and the parties to the case in point.?
The learned trial Court held on page 145 of the record to wit: “On the damages claimed for injuries sustained by the 1st plaintiff due to the assault of the defendants, I asses this based on the permanent injury
46
and deformity suffered by the plaintiff and I award the sum of N5,000,000. 00 (Five Million Naira) only against the defendants in favour of the 1st plaintiff.”
Based on the evidence on the record I find no fault in the learned trial judge’s position as held above. lt was further held in the case of lgbosewe V. Delta Steel Co. Ltd. (Supra) that “Where a party adduced sufficient evidence on reliefs sought by him without any challenge whatsoever by way of cross – examination by the opponent, those facts are therefore deemed admitted and proved.?
On the non specificity of damages as argued by the appellant?s counsel, the law is trite that the proper thing to do in awarding damages in personal injury cases is to make awards for pain and suffering and also for loss of amenities of life under separate heads of damages both falling under general damages. See Ighosewe v. Delta Steel Co. Ltd. (Supra); Straba Construction (Nig) Ltd v. Ogarekpe (1991) 1 NWLR (pt. 170) 733; U.B.A. Plc. V. Achoru (1990) 6 NWLR (pt. 156) 254.
As quoted earlier the damages awarded by the learned trial Court on this issue is for injuries sustained by the 1st
47
plaintiff due to the assault of the defendants. The trial Court only exercised its duty as provided by law. It is imperative to note that the matter before the Court is Civil, which is decided on the preponderance of evidence. The plaintiffs herein have not activated the Court?s powers to exercise its criminal jurisdiction in this case. The appellants’ argument that crime has been raised and must be proved beyond reasonable doubt does not arise.
I resolve this issue against the appellants and in favour of the respondents.
ISSUE SIX:
Whether or not the award of four hundred and fifty thousand naira (N450,000) and one hundred and fifty thousand naira (N150,000) respectively are justly and properly awarded according to legal principles (ground 9).
Appellants on this issue disagree with the learned trial Court’s award of Four Hundred and Fifty Thousand Naira (N450,000.00) and One Hundred and Fifty Thousand Naira (N150,000.00) respectively in favour of the plaintiffs.
Learned counsel’s argument is that the plaintiffs/respondents do not merit the award by the trial Court as according to him, they failed to prove their root of title,
48
that the Court by that reason is precluded from awarding such costs in their (respondents?) favour as costs, he says follow events.
Learned counsel urged us to set aside the award and the judgment of the learned trial Court and grant the appellants? counter claim.
On the respondents part, learned counsel argued that ground 9 of the grounds of appeal from where this issue was distilled has to do with the discretionary powers of the Court and thus says he required the leave of the Court.
That the ground and the issue therefrom were misconceived. That the only complain open to a party is either the award of cost was excessive or too low. Relying on the authority of Mobil Production Ltd. V. Monokpo (2011) FWLR (Pt. 78) 1210 @ 1213. learned counsel urged the Court to strike out the ground of appeal and the issue raised from same for the reasons above mentioned.
Counsel further urged the Court to uphold the award of the costs of N450,000. 00 and N150, 000. 00 respectively as cost according to him is awarded to compensate the successful party for loss incurred in the course of litigation. He referred to Registered Trustees of Ifeloju
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v. Kuku (1991) 5 NWLR (Pt. 189) 65.
Counsel finally urged the Court to dismiss the appellants? appeal and to uphold the decision of the learned trial Court delivered on the 25th of March, 2013.
In reply to the the respondents, learned counsel for the appellants submits that the appeal herein is against the whole judgment. That cost awarded in a judgment forms part of the said judgment. Counsel referred to Section 241(1) of the 1999 Constitution as amended. That the decision of the Court was not interlocutory but final decision. That the award cannot stand where the root of title fails. He urged the Court to so hold and set aside the award.
RESOLUTION:
The award of damages as established by law is essentially the duty of the trial Court judge. The exercise of such power after a careful and judicial assessment of the damages is discretional. See the case of lgbosere V. Delta Steel Co. Ltd. (Supra): Harka Air Services (Nig.) Ltd. V. Keazor (2011) 13 NWLR (pt. 1264) 320 SC.
The award of N450, 000. 00 and N150, 000. 00 by the trial Court against the defendants and in favour of the plaintiffs were in respect of the costs incurred by
50
the plaintiffs in the course of litigation and which they succeeded. The Court as I can infer did exercise its discretionary powers which is permissible in law.
It was held in the case of ACB V. Okonkwo (1997) 1 NWLR (pt.480) 194 that “A party cannot appeal on failure of the High Court to award costs without first obtaining the leave of either the Court of appeal or of the High Court. This is the requirement of Section 220 (2)(c) of the 1979 Constitution. In this case, since the 1st respondent did not obtain leave, the ground of appeal in the cross – appeal complaining against costs ought to be struck out and the issue formulated from it becomes a non issue.” The above authority is in tandem with the provision of Section 241(2) (c) of the Constitution of Nigeria, 1999, by which I am guided to opine that the appellant herein must show that the learned trial judge proceeded upon some wrong principles of law or that the award was an entirely erroneous estimate in order to succeed. We shall therefore not interfere with the lower Court’s exercise of discretion in awarding costs which in our view was judicially carried out. See Ladega V. Akinliyi (1992) 2
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SC 91: Rewane V. Okotie ? Eboh (1960) SCNR 461.
I agree based on the aforementioned authorities that the ground of appeal and issue formulated therefrom cannot stand. The arguments put up by the learned counsel for the respondents that the only complaints open to the defendants on this issue was whether the costs awarded were too low or excessively high.
Therefore, ground Nine (9) of the grounds of appeal and issue No. 6 emanating from same are hereby struck out.
On the issue of title to the land in dispute as to warrant the award of damages, I had earlier decided on the preponderance of evidence that respondents herein did prove a better title as against the defendants/appellants title.
This issue is resolved in favour of the plaintiffs/respondents and against the defendants/appellants.
Having resolved the six issues in this appeal against the appellant, this appeal fails for lacking in merit. Consequently, the judgment of Hon. Justice C.E.T Ajama of the High Court of Ondo State, sitting at the Akure Judicial Division in Suit No. AK/131/2010 delivered on the 25th of March 2013 is hereby upheld.
Other Citations: (2016)LCN/8952(CA)