3PLR – BALOGUN V. LABIRAN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI ALIYU BALOGUN

V.

ALHAJI SHITTU LABIRAN

 

IN THE SUPREME COURT OF NIGERIA

10TH JUNE, 1988.

SUIT NO. 184/1986

3PLR/1988/24  (SC)

CWLR (1988) 9

 

OTHER CITATIONS

(1988) 3 NWLR (pt 30) 66

 

BEFORE THEIR LORDSHIPS:

ESO,   J.S.C.

KAWU, J.S.C.

OPUTA, J.S.C.

WALI,  J.S.C.

CRAIG, J.S.C.

 

REPRESENTATION

A. Agbaie – for the Appellant

O. Arasi – for the Respondent

 

OTHER ISSUES

TORT – Trespass to land – When a retrial order is appropriate

CHILDREN AND WOMEN LAW: Civil disturbance – Trespass to land

 

 

MAIN JUDGEMENT

KAWU, J.S.C. (Delivering the Lead Judgment):

The proceedings leading to this appeal were commenced in the High Court of Justice of Oyo State, Ibadan Judicial Division, Ibadan, on the 14th day of April, 1980. In that court, the respondent herein instituted an action against the appellant claiming as follows:

“(a)    N2000.00 damages for the acts of trespass committed by the Defendant and still being committed on the Plaintiff’s land situate, lying and being at Labiran Compound, Labiran Ibadan which is more particularly shown on a plan to be filed later in Court.

(b)     Injunction restraining the Defendant, his servants/agents and/or anyone claiming through or under him from committing any further act of trespass on the said land.”

Pleadings were ordered, filed and delivered and the matter eventually came up before Ogundere, J. (as he then was).

The plaintiff’s claim was for damages for trespass which he alleged that the defendant has committed by demolishing his house. That claim was fully pleaded in paragraphs 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the statement of claim as follows:

“3.     The land trespassed upon by the plaintiff is situate at Labiran Compound, Ibadan and is more particularly shown on the attached plan No. AK2228/OY of 24th July, 1980 made by Akingbogun, Licensed Surveyor.

4. The whole area of land verged red on the plaintiff’s plan originally belonged to his ancestor Labiran who settled on it during the reign of Oba Oluyole the then Bale of Ibadan.
5. The Defendant and his parents were strangers in Labiran’s Compound and have no interest in the family property.
6. During the reign of Oyewole, Foko, Mogaji Abibu allocated part of Labiran Family land to Jinadu Ape, the father of the Defendant to build a house consisting of four rooms on the recommendation of one Lakutuye, another stranger in Labiran Compound.
7. The father of the Defendant built on the land allocated to him and stayed in the said house until his death.
8. During his life time, Jinadu Ape, the father of the Defendant, confined him-self to the house built on the land allocated to him by Labiran family.
9. Sometime in 1965, the Defendant without the consent or permission of either the Mogaji or Labiran family or any accredited representative of the said Family entered into and made an extension to his said father’s house on the adjoining piece of land verged yellow on the attached plan No. AK2228/OY. 12. The Mogaji of Labiran Family Badiru Ladapo, and the other members of Labiran family warned against the said Defendant’s extension of his father’s house but instead of taking heed to the warning, the Defendant instituted an action in suit No. A2/CV./2/65 against Zacheus Jide, Anietu Alake and Sa-lamotu all members of Labiran Family.
10. The area in dispute is part of Labiran family land which was granted to one Zacheus Jide by Badiru Ladapo, the Mogaji of Labiran family.
11. The said Zacheus Jide sometime in 1952 built a house on the portion of the land granted to him and he was in an undisturbed possession of the said house until 1965 when the Defendant sued Zacheus Jide and some members of Labiran Family in respect of land on which Zacheus Jide’s house was built.
12. After the Defendant’s case was struck out, the said Zacheus Jide sometime in 1970 sold his house to the plaintiff, another member of Labiran Family because members of Labiran Family decided that Zacheus Jide, who was then in need of money should not sell the house to a stranger.
13. The house sold to the plaintiff by Zacheus Jide is a story building consisting of six bed rooms.
14. Not long after the plaintiff purchased Zacheus Jide’s house, he, the plaintiff travelled to Mecca with his mother. But before the plaintiff travelled to Mecca, he removed part of the building viz: the part facing the Defendant’s building.
15. On arrival from Mecca, however, the plaintiff discovered that the whole building which he bought from Zacheus Jide had been pulled down.
16. On enquiries, the plaintiff learnt that it was the Defendant together with his servants and agents who pulled down the building.
17. Karimu Lapade was present when the Defendant and his agents were pulling down the plaintiff’s building and the said Karimu Lapade warned the Defendant about the consequences of such an act.”

In his reply the defendant emphatically denied the trespass alleged, and having, in paragraph 2 of the statement of defence admitted paragraphs 1, 2, 4, 5, 6, 7 and 11 of the plaintiff’s statement of claim, averred in paragraphs 3, 4, 5, 6, 7, 9, 12, 13, 14, 15, 16, 17 and 18 of the statement of defence as follows:

“3.     The defendant denies paragraphs 3, 8, 10 and 12 to 20 of the plaintiff’s Statement of Claim and puts the plaintiff to strict proof thereof.

4. The defendant admits paragraph 8 only to the extent that Mogaji Abibu granted land to Jinadu, but denies that his father was given a land to build a house consisting of four rooms and adds that –

(a)     He is not related to the plaintiff’s family but will contend, that he has interest in the portion of plaintiff’s family land granted to his father and shown verged Blue on Plan No. KESH/Y11857 drawn by Alhaji Y. O. Keshinro Licensed Surveyor and attached herewith.

(b)     The said portion granted by Abibu to Jinadu, Defendant’s father absolutely under Native Law and Custom about seventy five years ago extends to Omilabu’s Compound on the Western side; to the area where Madam Sella Popoola and Adeleke Adisa’s houses are built, on the Southern part; to the plaintiff’s compound where Badiru Mogaji’s house (now in ruins) is shown on the Western side and extends to the area shown as Adeoye Akinjide’s house and kitchen on the Northern side. (c) The said area includes part of the portion now in dispute verged Purple on plaintiff’s plan.

5. After the said grant the defendant’s father, Jinadu, built a house on a portion of the land verged Blue (which house was extended by defendant, after the death of Jinadu, about thirty years ago) and also built a plank fence to mark its boundary with that of the plaintiff.
6. After the death of the said Jinadu about thirty-five years ago, the land verged Blue became Jinadu family land and was succeeded to by the defendant as his eldest son under Native Law and Custom.
7. The defendant continued to exercise absolute and maximum acts of owner-ship on the entire area described above by burying corpses of members of their family thereon particularly on the area where Ansetu Alake built her house.
8. One Madam Salamotu, a member of the plaintiff’s family, unlawfully tres-passed on the portions of the land granted ………. and commenced building operation …….. the defendant protested and did all in his power to prevent the said Madam Salamotu from building on the said land.
9. When the defendant could no longer contain the activities of the said Salamotu, Ansetu Alake and Zacheus Olajide the defendant took the action referred to in paragraph 12 of the Statement of Claim in 1965 before the Ibadan Grade 2 customary Court for Declaration of Title and Injunction over the …….. marked Salamotu and Ansetu and the area verged purple on the plan of the plaintiff attached to the Statement of Claim.
10. The defendant who was the plaintiff in the said action lost in the customary court but won in the High Court Suit No. I/14A/69 where the judgment of Grade ‘A’ was set aside and a retrial ordered.
11. The retrial had a chequered career before it was struck out. But an attempt by the defendant to have the case relisted was stopped by the reorganisation of the customary court and the eventual closure of the said courts up till now.
12. With further reference to paragraph 15 to 20 of the statement of claim the defendant says –

(a)     During the pendency of the action taken by the defendant the said Zacheus Olajide abandoned the house which he built on the are verged purple.

(b)     By 1970 the house was in a ruinous state and constituted a grave danger to the lives of the people in that area and in particular a danger to the house of the defendant which was in close proximity to it.

(c)     About three years later part of the house fell down and recently, last year, the dilapidated remains of the house fell down during one of the heavy down pour of rains after a stormy spell.

16. The defendant will contend that the whole of the land verged blue on defendant’s Counter Plan has always been in the exclusive possession of the defendant except for the short period Salamotu Ansetu Alake and Zacheus Olajide trespassed on it and that the plaintiff has never been in possession of the land in dispute at any time.
17. The plank fence built by the father of the defendant has completely disappeared, the plank fence having been pulled down and destroyed by the plaintiff and members of his family in order to remove any sign of its existence.
18. WHEREOF the defendant says that the plaintiff has no valid title to the said land and his claim should be dismissed with substantial costs.”

At the trial, the parties and their witnesses testified, and at the conclusion of the hearing, the learned trial Judge reviewed the totality of the evidence adduced and found for the plaintiff as follows:

………………………………………. I find as admitted by the defendant that the whole area of land in Exhibit P1 which is identical in all material particulars with the whole area of land edged Red in Exhibit D3 belongs to the Labiran Family including a plot of land on which the disputed house stands. I am also satisfied from the evidence of P.W.2 Karimu Olapade Mogaji Labiran and his brother P.W.6 (sic) Alhaji Azeez Aliu whose evidence on material particulars were not destroyed or shaken under heavy cross examination by Alhaji Yekini Agbaje, learned counsel for the defendant, that it was the defendant and his agents that pulled down the house built by Zacheus Olajide or whatever remained of that house after the plaintiff has purchased the house from the said Zacheus Olajide. Although the defendant had sought to establish the grant of land to his father to cover the land in dispute as well as the areas of land covered by Salamotu and Arisetu Alake’s house, I am also satisfied from the evidence of P. W.2 that Salamotu’s house was built during the life time of the defendant’s father; and there is no evidence that defendant’s father protested when Salamotu was building her house.

In the circumstances l find that the said^. defendant ^.had committed trespass on the plaintiff’s house and land which he pulled down. I find a claim of trespass duly proved and since the house originally cost N400 in 1970 and taking note of the inflation question I award N1,000 damages in trespass to the plaintiff, I also order an injunction restraining the defendant, his heirs, agents and servants from further trespass on the said land.”

Being dissatisfied, the appellant appealed to the Court of Appeal, Ibadan Division – Coram Uche Omo, Ibrahim Kolapo Sulu-Gambari and Sylvester Umaru Onu, JJ.C.A. on a number of grounds. In a lead judgment delivered by Onu, J.C.A. on the 10th day of December, 1985 with which Uche Omo and Sulu-Gambari concurred, his appeal was dismissed and the judgment of the High Court was affirmed. The appellant, still dissatisfied has further appealed to this Court.

Originally, only four grounds of appeal were filed with the Notice of Appeal. Subsequently however, the appellant sought and was granted leave to file and argue additional grounds of appeal. Altogether ten grounds of appeal were argued.

In compliance with the provisions of Order 6 Rule 5(1) of the Supreme Court Rules, 1985, both counsel in this appeal filed and served briefs of argument. In his brief, appellant formulated seven issues for determinations as follows:

“ 1.    Whether or not the Learned Trial Judge as well as the Learned Justices of the Court of Appeal were in error to put the onus of proof on the Defendant in a claim for trespass and injunction, where both parties are claiming from the same grantor on the ground that the defendant had admitted the title of the original grantor.

In the Alternative

1. Whether the Learned Judge as well as the Learned Justices of the Appeal Court were in error to treat the claim for trespass and injunction between the Plaintiff, a member of Labiran family who bought from a grantee or allottee of Labiran family, as a dispute between the Defendant/Appellant and Labiran family who had a mere reversionary interest, merely because the Defendant admitted the title of original grantor.

My Lords will be urged to hold that they were wrong.

2. Whether the Learned Justices of the Court of Appeal were not in error in not holding that the Learned Trial Judge had not properly evaluated all the evidence before it and had made his findings not on the totality of the evidence before him.

My Lords will be urged to hold that they were wrong.

3. Whether the opinion formed by the Learned Trial Judge with which the Learned Justices agreed as to demeanour of 3rd witness and if the evidence of 2nd and 3rd Defence witnesses were ill-founded, wrong and rejection of their evidence is whole proper in the circumstances.
4. My Lords will be urged to hold that they were wrong.

Whether or not the Learned Justices of the Court of appeal were not in error in failing to hold that having regard to several issues raised in the pleadings which require to be resolved but which the Learned Trial Judge failed to re-solve and that he could not resolve them in favour of the Plaintiff/Respond-ant when his evidence conflict with pleadings and evidence of witnesses contradict themselves on material points.

My Lords to hold that they were in error.

5. Whether the Learned Trial Judge’s approach of the case and his treatment of the witnesses and their evidence was wrong and whether sufficient likelihood of bias has been shown to vitiate his decision. That the answer be YES.
6. Whether the Award of N1000.00 Damages for trespass should be set aside. That the Answer be YES.
7. Whether if the whole evidence had been properly considered the Plaintiff claims should not be dismissed or retrial ordered. That my Lords should order a dismissal.”

There were three issues formulated for determination by learned counsel for the respondent and they are as follows:

“(i)     Whether the learned trial Judge and the learned Justices of the Court of Appeal were in error to have shifted the onus of proof onto the Defendant to prove the area granted to his father by Labiran Family and to show that Labiran Family had divested itself of the ownership of the area on which the house in dispute stood he, the Defendant, having admitted that the whole area in Exhibit P1 originally belonged to Labiran Family.

(ii)     Whether the learned Justices of the Court of Appeal were in error to have determined the use of the word “biased” in the context in which it was used by the learned trial Judge and for failing to import the technical or the legal use of the said word.

(iii)    Whether the Court of Appeal was wrong to have upheld the findings of fact and the judgment of the trial court in the light of the evidence of the plain-tiff/respondent and his witnesses.”

Although there is no complete agreement between counsel as to issues which fall for determination, I am satisfied that broadly all the issues formulated by Alhaji Yekini Agbaje, learned counsel for the appellant are based on all the grounds of appeal filed and argued. It is also my view that appellant’s issues numbers 2, 3, 4 and 5 sufficiently cover the appellant’s complaints in grounds 2, 8, 9 and 10 of his grounds of appeal.

Now having carefully examined these grounds of appeal and having considered all the submissions made in support of them, I have firmly come to the conclusion that the appellant’s complaints in each of these grounds relate to issues of facts in respect of which the learned trial Judge had made specific findings. Those findings were subsequently affirmed by the Court of Appeal. Thus there have been two concurrent findings of fact by the two lower courts on the is-sues raised in each of those grounds. The policy of this Court, which has been repeatedly stated in several of its decisions is not, in the circumstances, to interfere with such findings: Chinwendu v. Mbamali (1980) 3-4 S.C. 32; Enang v. Adu (1981) 11-12 S.C. 25 at p.102 and Okagbue v. Romaine (1982) 2 S.C. 133 at pp. 170-171. This Court will do so only where there has been a miscarriage of justice or a violation of some principle of law or procedure: Otogbolu v. Okeluwa (1981) 6-7 S.C. 99 and Ibodo v. Enarofia (1980) 5 S.C. 42. In this case I have not been persuaded that there are special circumstances which will justify our interfering with those findings which, in my view, were based on cogent, credible and legally admissible evidence before the trial Court. I do not, therefore see any sub-stance in grounds 2, 8, 9 and 10 of the appellant’s grounds of appeal.

The complaint in ground one of the grounds of appeal is that the trial Judge wrongly placed the burden of proof on the appellant, who was the defendant. The ground reads as follows:

‘The learned Justices of the Court of Appeal as well as the learned trial Judge erred in law in putting the onus of proof on the appellant and thereby occasioned a miscarriage of justice and came to a wrong conclusion.

Particulars

When the onus of proof in such cases where title is raised in a claim fortres-pass and injunction is always on the plaintiff who must succeed on the strength of his case and not on the weakness of the defence and never shifts to the defendant.”

Now, in civil cases the burden of proof is generally on the plaintiff, and in this particular case the onus was on the respondent to prove the trespass alleged. In order to succeed, he had to satisfy the trial Court, on the preponderance of evidence, that at the time of the trespass, he was in exclusive possession of the house or had a right to such possession – Pius Amakor v. Obiefuna (1974) 3 S.C. 67 at p.74 and, as in suit for declaration of title in establishing his claim he must rely on the strength of his case and not on the weakness of the defence.

The respondent’s case was that the Labiran family granted a portion of the family land to PWA who erected a house on it in 1952; that he bought the house from P.W.4 in 1970 and that when he travelled abroad on pilgrimage to Mecca, the appellant and some others, in the presence of Karimu (P.W.5) pulled down the house. He adduced evidence in support of his case. In his defence the appellant raised the issue of title – claiming that the respondent’s house was in fact built on a portion of the land granted to his father by the Labiran Family. In his judgment the learned trial Judge held, and I agree with him, that if that was the appellant’s assertion, the onus was on him to prove it. As was pointed out by this Court in Onobruchere v. Esegine (1986) 1 N.W.L.R. 799 at 801 (Part 19) there are exceptions to the principle of law that puts onus of proof on the plaintiff in civil cases, and in my view, bearing in mind the state of the pleadings in this case and the evidence adduced, the two lower courts were right in their conclusion that the onus was on the appellant to prove the extent of the Labiran Family grant to his father. I see no substance in this ground of appeal. Nor in ground 7 which complains that the Court of Appeal misconceived the legal effect of the admission by the defendant of the averments in paragraphs 4,5 and 6 of the plaintiff’s statement of claim. Ground 3 complains as follows:

“The learned Justice of the Court of Appeal erred in law in not setting aside the judgment of the trial judge and order a retrial when the justice of the case demands it.

Particulars

(i)      When the Learned Trial Judge’s approach to the case was wrong.

(ii)     When the Learned Trial Judge applied different standards to the case of the Plaintiff and the Defendant.

(iii)    When there is a miscarriage of justice.”

The appellant’s arguments and submissions in support of this ground of appeal cover several pages of the brief of argument under the following headings:

“(A)   Inadequate consideration of pleadings. (B) Misconception of the case of Plaintiff.

(C)     Wrong and Inadequate treatment of Defendant’s case. (D)Misplacement of burden of proof on the Defendant/Appellant. (E) By misconceiving the nature of evidence necessary to discharge particular burden of proof.

(F)     By Glossing over points capable of Discrediting the Plaintiff/Respondent and his witnesses manifest conflict and discrepancies in their evidence. (G)Failure to consider Plaintiffs case adequately or at all particularly his defence to damage to the house.

(H)     He applied double standard – Ground of Interest. (I) Wrong procedure in writing judgment.

In his argument, learned counsel for the appellant made references to the evidence given at the trial by several witnesses and pointed out what he considered were contradictions and inconsistencies in their testimony. He then submitted that because of the various faults which he had highlighted in the judgment of the trial court, the Court of Appeal should have ordered a retrial.

Having carefully examined counsel’s submissions, I am left in no doubt that the substance of his complaint is really against the learned trial Judge’s findings of fact, his assessment of the credibility of the witnesses who testified before him, and his ascription of probative value to their evidence.

These matters, as this Court has pointed out in several of its decisions, are matters within the competence of a trial court. It is now well settled that an Appellate Court will not ordinarily. interfere with the findings of fact of a trial court unless there is compelling evidence which clearly indicates there has been an erroneous appraisal of such facts – Okafor Odigo (1984) 1 S.C. N. L. R. 481; Balogun v. Agboola (1974) 10 A.C. 111 and Ete v. The State (1976) 11 S.C. 75. The rationale behind these principles has been set out by my Lord, Kayode Eso, J.S.C., in his judgment in Chief Frank Ebba v. Chief Warri Ogodo AND Anor (1984) 4 S.C. 84 at p.98 where he said:

“Now, the principles upon which a court of appeal would act have been well stated in the English case of Watt or Thomas v. Thomas (1947) A. C. 484 and approved several times by this court. Indeed, it is the duty of the trial Court to assess witnesses, form impression about them and evaluate their evidence in the light of the impression which the court forms of them. That is one good reason why the trial Court is named a “trial court” it is the trial court (and hence a court of appeal should attach the greatest weight to the opinion of the trial Judge) that has the duty to see and indeed, in this case, has seen the witnesses and also heard their evidence. The Court of Appeal should not disturb a finding of fact unless that court is satisfied that such finding is unsound, it is in the process of deciding whether the finding is sound or not, that the Court of Appeal (because it does not see the witnesses) is left only to examine the grounds that led to the conclusion reached by and the inferences that have been drawn from such conclusions of the trial Court.”

In this case I am satisfied that the learned trial Judge correctly and adequately evaluated all the evidence properly placed before him, and made findings of fact on the salient issues in controversy at the trial, and nothing has been said by learned counsel for the appellant to fault those findings.

As to the question of retrial order, it is plain in this case that such an order would have been most inappropriate. After all civil cases are decided on the preponderance of evidence and it is clear, on the record, that the respondent, who was plaintiff in the trial court adduced sufficient evidence to justify the verdict of the court in his favour. In my view the facts of this case do not come under the guiding principles for ordering a retrial which have been laid down in Abodundu AND OTHERS v. The Queen (1959) 4 F.S.C. 70 at pp. 73 AND 74.

There is one other point in this ground of appeal which deserves some consideration and this is the appellant’s complaint that his main defence to the trespass alleged was never considered by the trial Judge. In arguing this point appellant’s counsel referred us to p.35 of the record where, in his defence, the appellant testified as follows:

“I did not demolish the houses of Ansetu, Lajide and Salamotu. Since the Court ordered retrial I have not seen Lajide around the house which he built. He abandoned the house. By 1970 the house was in ruins and the Walls were dilapidated. There was a big storm that pulled the house down in 1979, that storm was called Omiyale.”

Counsel also referred us to the evidence of P.W.2 at p.37 of the record which he said fully supported the appellant’s defence.

While it is true that there is nowhere in the judgment of the trial Judge in which a specific reference was made to the appellant’s defence that it was the heavy rain that damaged the respondents building, it would not be correct, in my view to say that, that defence was never considered. The respondents case was that it was the appellant and some others who pulled down his building. On the other hand the appellant said it was a heavy down pour that did the damage. The learned trial Judge had to resolve these two conflicting claims, and, as it happened, he preferred the respondent’s version. In the circumstances, it is, in my view, reasonable to assume that the learned trial Judge must have given due consideration to both versions before opting for one. I see no substance in this complaint.

In ground 4 the appellant’s complaint is that the court of Appeal, in its judgment, failed to consider ground 8 of his grounds of appeal in that court after he had advanced arguments in its support. Counsel submission, and I agree with him, that the Court of Appeal was obliged to consider and pronounce on all the grounds of appeal properly filed and argued before it. However I am unable to agree with his further submitted, that in this particular case, the failure of the Court to consider this particular ground of appeal (which would appear to have been an oversight) has occasioned a miscarriage of justice.

Ground 5 is a complaint about the award of N1000.00 damages against the appellant which award is said to be “erroneous in law, arbitrary, excessive and not a proper exercise of judicial discretion.”

The only point of substance in this ground of appeal is that the learned trial Judge should not have taken into account the issue of inflation when assessing the damages awarded. I think there is some merit in this submission since it was not an issue that was argued before him. The question now is whether, in the circum-stances, this Court ought to interfere with the trial court’s award. I think not.

The principles upon which an Appellate Court acts in considering a complaint about the amount of damages awarded by a trial Court are well established. They have been clearly set out by Greer, L J. in Flint v. Lovell (1935) 1 K.B. 354 at p.360 as follows:

“I think it right to say that this Court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of dam-ages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plain-tiff is entitled.”

Also see Idahosa v. Oronsaye (1959) 4 F.S.C. 166 and Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All N.L.R. 241.

Applying these principles to the present case I can find nothing in this case which could justify any interference by this Court in the amount of damages awarded by the trial Judge. This ground of appeal also fails.

In the result all the grounds of appeal fail and accordingly the appeal is dismissed. The judgment of the High Court in favour of the respondent which was confirmed by the Court of Appeal is hereby affirmed with N500.00 costs awarded to the respondent.

ESO, J.S.C.:

This is a second appeal on facts. This case in the trial nisi prius was for damages and injunction.

The trial Court after a careful examination of the facts found the defendant liable in trespass, awarded damages and granted injunction.

The Court of Appeal dismissed the appeal therefrom.

I have had a preview of the judgment of my learned brother Kawu, J.S.C. and I agree with his reasoning and conclusion.

In these concurrent findings by the two lower courts, care was taken to examine the facts thoroughly. Nothing has been shown here to be exceptional in the arguments of learned counsel to do violence to the findings.

I abide by the decision and all the orders made by my learned brother Kawu, J.S.C.

OPUTA, J.S.C.:

I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Kawu, J.S.C. and I am in full agreement with him that this appeal is lacking in merit and that it therefore ought to be dismissed.

The Claim before the trial Court was for N2,000.00 damages for trespass and an Injunction. In an old case, Abotche Kponuglo AND AND OTHERS v. Adja Kodadja 2 W.A.C.A. 24 decided by the privy Council on the 21st November 1933 that Court held inter alia:

‘The respondent’s claim being one of damages for trespass, and for an injunction against further trespass, it follows that he has put his title in issue. His claim postulates, in their Lordships, opinion that he is either the owner of Bunya land or has had prior to the trespass complained of exclusive possession of it. The principal question to be decided in the appeal would accordingly seem to be – Has the respondent discharged the onus of demonstrating beyond reasonable doubt that the title to the disputed land is in him? The Appellants say – Nay; the Respondent says – Aye.”

There is no doubt that when two people are on the same piece of land, each claiming possession of it, the party wins who can prove title – Jones v. Chapman (1847) 2 Exch. 803 at p.821 per Manle, J. But having said that, ordinarily, trespass is a wrong not against title but against possession, and the nature of the possess-ion to ground an action for trespass will surely and naturally depend on the peculiar facts of each particular case as well as on the surrounding circumstances.

In this case the Respondent pleaded that he is a member of the Labiran family and that the land in dispute – the land trespassed upon – was family land with radical title residing in the Labiran family. All the (the Respondent) had was a possessory title which he derived intermediately through Zacheus Olajide who had an allotment of the land to him by the Labiran family. The Appellant admitted in paragraph 2 of his Statement of Defence, paragraphs 4,5,6 and 7 of the Plaintiff/Respondent’s Statement of Claim. It may be necessary to reproduce the four paragraphs.

4. The whole area of land verged red on the plaintiff’s plan originally belonged to his ancestor Labiran who settled on it during the reign of Oba Oluyole the then Bale of Ibadan.
5. The said Labiran was seised and possessed of the Land.
6. The Land devolved according to Native law and Custom on succeeding Mogaji’s for and on behalf of Labiran family ……”
7. The defendant and his parents were strangers in Labiran’s Compound and have no interest in the family property”.

It was therefore common ground from the pleadings that the land in dispute was family land and that the radical title resided in the Labiran family. The Plain-tiff/Respondent was a member of the Labiran family while the Defendant/Appellant was stranger to that family. The question before the trial Court was – Did the Plain-tiff now respondent prove sufficient possessory title to ground his claim for trespass?

Here one has to look at the findings of fact of the learned trial Judge who saw the witnesses and heard them testify. At p.48 of the record, the learned trial Judge found:

“1.     I find it admitted by the defendant that the whole area of land in Ex.P1 which is identical in all material particulars with the whole area of land edged Red in Exhibit D3 belongs to the Labiran family including a plot of land on which the disputed house stands.

2. I am also satisfied from the evidence of P.W.2. Karimu Olapade Mogaji Labiran and his brother P.W.6 Alhaji Azeez Aliu …. that it was the defendant and his agents that pulled down the house built by Zacheus Olajide”.

From the above findings, the Plaintiff’s case was proved. The only answer to that case was for the Defendant/Appellant himself a stranger to establish some-thing more than a possessory title-radical title. And that was why the learned trial Judge at p.47 of the record commented:

“It seems to me that since the defendant has claimed title or a statutory right of occupancy to the land on which the house the subject matter of the trespass was, title is in issue and having admitted the original title of the Labiran family to a large area of land including the one claimed by him in his pleadings, the onus of proof shifts on him to prove conclusively the area granted him by Labiran family ……..”

The above observation is the correct view of the law. Being a stranger to the Labiran family and having admitted the prior radical-title of the Labiran family, to defeat the Plaintiff/Respondent’s possessory title derived from allotment of part of family land to a member of the family, the Defendant had the onus of tracing the devolution of the admitted radical title of the Labiran family on and over the land in dispute to him. Here grant was pleaded. The onus was on the Defendant to prove the grant he pleaded as well as its extent. The Plaintiff can succeed on proof of allotment and thus possessory title. The Defendant to succeed must prove the grant he pleaded. This he could not do. So the Defendant lost in the trial Court. He also lost in the Court of Appeal.

The issue now is – Was the Court of Appeal right in upholding the finding and judgment of the trial Court in favour of the Plaintiff. The answer is yes. At p.133 of the record, the Court of Appeal observed:

…. a cursory look at Ex.P1 would leave no one in doubt about the position of the land in dispute. It is right in the middle of Labiran family land. ……………. Since the claims of the respondent against the appellant are for trespass and injunction and since the appellant claimed to have been granted part of the en-circled land on which the house in dispute stood is Labiran family land, the onus shifted on him (the appellant) to show that Labiran family had divested it-self of that part of family land and to show the extent of the area granted to him”.

The Court of Appeal was perfectly right in its above observation.

One word on burden of proof. There is no doubt that the primary onus of proving his case lies on the Plaintiff. But that onus may even be discharged in the pleadings as by the Rules of pleading there is no onus to prove that which had been admitted: Lawrence Onyekaonwu v. Ekwubiri AND Ors (1966) I All N.L.R. 34. In this case the trespass pleaded by the Plaintiff in paragraph 11 of his Statement of Claim was as follows:

“11.   Sometime in 1965, the defendant without the consent or permission of either the Mogaji of Labiran family or any accredited representative of the said family entered and made an extension to his said father’s house on the adjoining piece of land verged yellow on the attached plan No. AK2228/OY”.

The above paragraph 11 of the statement of Claim was admitted by the Defendant in paragraph 2 of his statement of Defence. The oral evidence called to prove the trespass already admitted in the pleading was called merely ad abun-dantia cautela. It was not strictly necessary.

Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of claim and on the Defendant to prove what he averred in his statement of Defence. Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the imaginary scale mentioned in Odofin AND OTHERS v. Mogaji AND OTHERS (1978) I L.R.N. 212 and the evidence adduce by the Defendant put on the other side of that scale and weighed together to see which side preponderates. In the case on appeal, it was the defendant/Appellant who pleaded a grant. He had the onus to prove the grant and its extent. This he failed to do. And thus he failed to displace the evidence of allotment of family land to the Plaintiff through his predecessor in title, Zacheus Ola-jide.

The next issue canvassed before us was the failure of the two Courts below to believe the evidence of D.W.3. Appellate courts do not and should not go into the issue of credibility of witnesses. That is an issue in the exclusive preserve of the trial Judge who was and heard the witnesses. Unless there is no evidence at all, to support the finding or that no reasonable jury could have believed an impossible story (which was believed by the trial Court) appellate Courts should not be bothered with issues and questions touching on the credibility of witnesses. Most of the submissions usually made before this Court are submissions which should have been properly made before the trial Court in an attempt to persuade it not to believe a particular witness. Once a witness has been believed or disbelieved, the issue changes. It now becomes-not why was he believed or disbelieved but could he have been believed or disbelieved? And it is not easy to establish that issue be-fore an appellate court. Arising from this, all submissions before an appellate Court should be based on evidence that was in fact believed and not on evidence that an appellant submits should have been believed but was in fact not believed.

The next issue canvassed and agitated in this case was -’Was it the Defend-ant/Appellant who pulled down Plaintiff’s house on the land in dispute or did the house fall down on its own as a result of a violent rain storm? This is an issue of fact to be resolved by the trial judge on the evidence before him. On this issue two witnesses, Karimu Olapade, P.W.2 and Alhaji Azeez Aliu P.W.5 – both testified that they “saw the Defendant and three others pulling down the house…….” These two witnesses were believe. The argument put forward here was that the trial Judge did not consider the defence that the house fell down because of a rain storm. Where there are two versions of an essential fact and these versions contradict one another and a trial Judge accepts one version, by implication he has rejected the other. It would however be better and neater if the trial judge states categorically that he rejects the other version of the story. That will certainly put the issue beyond doubt. In this case, however, the only logical inference to be drawn from the trial Court’s belief of P.W.2 and P.W.5 was that the Plaintiff’s house was not blown down by a rain storm. No, it was not. It was pulled down by the Defend-ant/Appellant.

For all the reasons given above and for the more detailed reasons in the lead judgment of my learned brother Kawu, J.S.C. which I now adopt as mine. I, too, will dismiss this appeal as lacking in merit. I will abide by all the consequential orders made in the lead judgment.

WALI, J.S.C.: I have had the privilege of reading before now the lead Judgment of my learned brother, Kawu, J.S.C. and I agree with ft.

Among the issues raised and discussed in the Judgment are 1. Concurrent findings of facts by the courts below;

2. Burden of proof; and
3. Quantum of damages.

These and other issues have been ably taken and comprehensively dealt with in the lead Judgment, I therefore find R unnecessary to write anything more by way of contribution. It is for these reasons given by my learned brother Kawu, J.S.C., which I hereby adopt as mine, that I too will dismiss this appeal as lacking in merit. It is accordingly dismissed.

I abide by the consequential orders made.

CRAIG, J.S.C.:

I have had the advantage of a preview of the judgment just delivered by my learned brother, Kawu, J.S.C. and I am in complete agreement with the views expressed therein.

Of the ten grounds of appeal argued before us, at least five of them were directed against the findings of fact made by the two lower Courts. It was not accepted evidence and I agree that the findings should not be disturbed. See Fasoro v. Abdallah (1987) 3 N.W.L.R. 134.

The issues involved in the remaining grounds of appeal have been fully and adequately dealt with in the lead judgment, and 1 cannot usefully add anything to it. Accordingly, the appeal fails on all grounds and it is dismissed with N500.00 as costs to the Respondent.

Appeal dismissed.