IDOGBO & ORS v AJAYI

IDOGBO & ORS v AJAYI


IN THE COURT OF APPEAL
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN

ON FRIDAY, 13TH JANUARY, 2017


Appeal No: CA/B/355/2012
CITATION:

Before Their Lordships:

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA

BOLOUKUROMO MOSES UGO, JCA


BETWEEN

OMON IDOGBO

ALEKIJO IDOGBO

JOHN IMEVBORE OHIMAI

(APPELLANTS)

AND

STANLEY AJAYI

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Representative Action – On whether failure to obtain authorization vitiates an action
Whether a member of a family can institute a representative action without authorization

“Let me first of all deal with the issue as to whether the respondent had the standing to sue in a representative capacity. It must be understood, that the representation the respondent waved at the lower Court, is not for the entire family, but for and on behalf of the children of Chief Sunday Ajayi. The representation obviously excludes the 3rd Appellant. The Authority of Jacks and Anor v. Whyte & Ors (supra), envisaged and deals with situations such as these. It is that where a representative order would have been granted had it been asked, failure to obtain it does not vitiate the action. This is more so, wherein one of those that the plaintiff claims to represent, objected to such representation at the Court of trial. I hold therefore on the above authority that the respondent had the standing to sue in the manner in which he did.” Per BARKA, JCA read in context

2. Pleadings – Pertinence of pleadings to a trial
The importance of pleadings in trial

“It is trite law, that the pleadings and the evidence adduced, forms the basis of the plaintiff’s case, and he wins or loses based on same.” Per BARKA, JCA read in context

B. APPEAL
3. Proliferation of Issues – Attitude of the Court to formulation of an issue from multiple grounds of appeal
Effect of more than one issue being formulated from a single ground of appeal

“Before delving in to the consideration of this appeal, it is necessary to show my displeasure at the way and manner the Appellant went about formulating his issues in this appeal. While issue one was formulated from grounds 1 – 4, of the appellants grounds of appeal, issue two is likewise formulated from the same grounds 1 and 3. Issue three is also formulated from grounds 1, 2 and three of the same grounds, and issue 4 from grounds 1 and 2, all of the same grounds of appeal. In essence, all the issues formulated are from more than one ground of appeal, and each ground of appeal gave rise to more than one issue. Granted, that even though it can be said that four issues were raised from four grounds of appeal, it is evident that one issue is formulated from more than one ground. Onnoghen CJN, in Okwuagbala v. Ikwueme (2010) 19 NWLR (pt 1228) 54, re-stated the position of the law on proliferation of issues, having stated that;

“From the issues formulated by the learned counsel for the appellant, and earlier produced in the judgment, it is clear that a total of four issues were formulated from three grounds of appeal, a situation frowned upon by the law, as it is settled law that though a counsel can formulate an issue out of a ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal, and that where more than an issue, is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues.”

As stated earlier, appellants issue one runs through appellants grounds 1, 2, 3 and 4 of the grounds of appeal. The same grounds 1 and 3 were utilized in framing issue two. Issue three is likewise distilled from grounds 2 and 3 of the same grounds of appeal. In crafting issue four, the learned counsel utilized grounds 1 and 2 of the grounds of appeal. It goes without saying that issues 1, 2, 3 and 4 are derived from grounds one, while ground two is used in formulating issues 1, 3 and 4. Ground three on the other hand gave rise to issues 2 and 3. Issues 2, 3 and 4 to me are certainly a surplus sage and prolix, and incompetent deserving of being struck out and are accordingly struck out. See Gordon Tom Iwak v. University of Uyo and Anor (2010) LPELR 4345 (CA); G.K.F Investment Nig. Ltd vs NITEL Plc (2009) 15 NWLR (pt.1164) 344 SC; Mozie vs Mbamalu (2006) 15 NWLR (Pt.1003) 466; AG Bendel State vs Aideyan (1989) 4 NWLR (pt 118) 646; Ashagba & Anor v. MONN & Anor (2011) LPELR 9122 CA; Zaeed A. Ajayi & Anor vs AG Ogun State &Ors (2008) LPELR 8568.” Per BARKA, JCA read in context

4. Interference with Evaluation of Evidence – Situations in which the Appellate Court will interfere with evaluation of evidence made by the trial Court

Circumstances in which an appellate Court will interfere with evaluation of evidence made by a trial Court

“The law has been established beyond peradventure that the primary duty of the trial Court is to evaluate the evidence led before it, and having done that, with the benefit of having seen the witnesses testify and having observed their demeanour, its decision would not ordinarily be disturbed unless it is perverse. Where the Court however fails to utilise the benefit of having watched, listened and assessed the witnesses before it, and thereby made no evaluation or assessment of witnesses, the appellate Court is empowered and will set aside the conclusions reached, and make its own evaluation of the evidence led, particularly where the credibility of the witnesses is not a determinant factor. See Imah vs Okogbe (1992) 9 NWLR (Pt. 316) 166; Aregbesola v. Oyinlola (2011) 9 NWLR (Pt 1253) 458 @ 480; Ebba v. Ogodo (1984) 1 SC NLR 372; Begha vs Tizza {2000) 4 NWLR (pt 652) 193; Igbeke v. Emordi (2010) 11 NWLR (pt 1204) 1 @7. In the words of the great jurist, Nnamani JSC, in Are v. Ipaye (1990) NWLR (Pt.132) 298:-

“I think it has to be appreciated that the evaluation of evidence and the findings of facts are within the province of the trial Court, and that an appellate Court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts.”

In the instant case, the trial Court having failed to properly evaluate the evidence led before it, which led to a perverse decision, occasioning a miscarriage of justice, the findings and the conclusions reached cannot stand.” Per BARKA, JCA read in context

C. EVIDENCE
5. Evaluation of Evidence – Duty of the Trial Court to evaluate evidence and the duty of the Appellate Court where the Trial Court fails to do so

Duty of the trial Court as regards perception, evaluation and findings of fact; the duty of an appellate court therein in a case of failure

“The position of the law on the evaluation of evidence has long been settled by a long line of authorities that surpassed counting or mention. Indeed as posited, by learned counsel for the appellant, the primary duty of a trial Judge is to evaluate and to ascribe probative value to the evidence adduced by witnesses called by the parties before it, before making any pronouncement on the case before it. This, the Court does by putting the evidence adduced by the plaintiff and that of the respondent on an imaginary scale, weighs them together and sees which weighs heavier. See Dauda v. Access Bank Plc (2016) ALL FWLR (pt 831) 1489 at 1513. There is no dispute that the trial Court in the performance of its duty of evaluation, which involves the weighing of the evidence proffered in the context of the surrounding circumstances, considering all the relevant evidence and the ascription of probative value to such evidence called perception, is undertaken by the trial Court, using its vantage position of having seen, heard and watched the witnesses as they give evidence. See Haruna V. Isah (2016) ALL FWLR (Pt 818) 918; Wachukwu v. Owunwanne (2011) ALL FWLR (1044) 589. This duty placed upon the Court of trial is rarely interfered with, where the Court does such duty diligently. However where a trial Court fails in its binding duty of evaluating and ascribing probative value to the evidence adduced before it, or where the finding and conclusions reached are perverse, a Court of appeal will not hesitate in taking over from the trial Court in the interest of justice, and thereby doing what the trial Court failed to do. See Dauda vs Access Bank (supra).” Per BARKA, JCA read in context

6. Evaluation of Evidence – What is to be considered by the Courts in evaluating evidence
How a trial court should assess evidence

“It is trite law, that evaluation of evidence entails the assessment of the credibility of witnesses; the evidence of the parties is assessed and weighed, with a view to ascribing probative value to it. See Wachukwu and Anor v. Owunwanne (2011) LPELR 34 SC. In the celebrated case of Odofin and Ors v. Mogaji and Ors (1978) NSCC 275 at 277, the Court per Fatayi Williams JSC, commanded that the totality of the evidence should be considered in determining which has weight and which has no weight at all. Therefore in determining which set of facts are preferable to which set, the trial Court must put the two set of facts on an imaginary scale, weigh one against the other, and then decide upon the preponderance of credible evidence, which weighs more, accept it in preference to the other and then apply the appropriate law. See also on this the cases of USN Pie v. Lawal (2015) 14 NWLR (Pt 1474) 203; Woluchem v. Gudi (1981) 5 SC 291; Duru v. Nwosu (1989) 4 NWLR (Pt 113) 24; Akintola v. Balogun (2000) 1 NWLR (Pt 642) 532.” Per BARKA, JCA read in context

7. Standard of Proof – Standard of proof in civil cases

Burden and standard of proof in civil cases

“I have earlier alluded to the legal position established by a host of cases that he who asserts has the evidential burden of proving the fact asserted. See Section 131 of the Evidence Act 2011, but unlike in criminal proceedings, the standard of proof is that on the balance of probabilities. It preponderates according to the state of the pleadings and evidence adduced. See Osukpon v. Eduoika (2016) 1 NWLR (pt 1493) 329 at 337.” Per BARKA, JCA read in context

D. LAND LAW
8. Trespass to Land – What must be proven by the Plaintiff for a claim for trespass to land to succeed

What a plaintiff must prove to succeed in a claim for trespass to land

“It is trite that a claim for trespass (as in the instant case) is rooted upon the claimant’s claim that as one of the grandchildren of their deceased grandfather, they are in exclusive possession of the property in dispute; and therefore had that burden of proving that they in fact are in exclusive possession of the property or the right to such possession, and the defendant having laid claim to being the owner of the property, then title is put in issue; and for the plaintiff to succeed, he must by credible evidence establish that he has a better title to that of the defendant. This he must do by relying on the strength of his case and not on the weakness of the defence case, unless where that weakness tends to support his case. See Omotayo v. CSA (2010) 16 NWLR (pt 1218) 1 at 21; Aiyeola v. Pedro (2014) 13 NWLR (pt 1424) 409; Adesanya v. Aderounmu (2000) 9 NWLR (pt 672) 370; Onwugbufor v. Okoye (1996) 1 NWLR (pt 424) 52.” Per BARKA, JCA read in context

9. Declaration of Title to Land – Duty of the Plaintiff where there is no will to attest to the mode of inheritance in a claim for declaration of title to land

Duty of a Plaintiff where claim for declaration of title to land is based on inheritance

“It is the law, that where a party is laying claim to title to a piece of land by inheritance, and there is no will to attest to the mode of the inheritance, he must call witnesses to testify as to his entitlement to inherit the said landed property under the appropriate native law and custom. In the instant case, the plaintiff having asserted that he inherited the property in contest under the Ora Native law and custom of inheritance, has the duty of proving his assertion by credible, compelling and acceptable evidence. It is only when the plaintiff succeeds in proving the assertion, that the defendant now offers his side of the story, which will then be placed on each side of the proverbial scale in reaching a verdict as to which weighs higher in value.” Per BARKA, JCA read in context

10. Acts of Possession and Ownership – Acts of long possession and enjoyment as evidence of ownership of land

*Whether acts of possession and enjoyment of land may be evidence of ownership of a land and of other lands so situated or connected with it

“It has been held that by the provisions Sections 35 and 145 (1) of the Evidence Act 2011, acts of long possession by the plaintiff can be prima facie evidence of ownership. Acts of possession and enjoyment of land, may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other lands so situated or connected with by locality or similarity, that what is true as to one piece of land, is likely to be true of the other. See Burutolou v. Yelbake (2015) ALL FWLR (Pt 771) 1534 @ 1552, Elegushi v. Oseni (2005) All FWLR (Pt. 282) 1837; Titiloye V. Olupo (1991) 7 NWLR (pt 205) 519. per Adah JCA.” Per BARKA, JCA read in context

11. Trespass to Land –

Who can maintain an action in trespass

“Trespass to land has been defined as an unjustified interference or intrusion with exclusive possession of land. See Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt 93) 215, Tukuru v. Sabi (2013) 10 NWLR (Pt 1363) 442 at 461, Evelyn v. Warri Local Government and Anor (2016) 10 NWLR (Pt 1520) 337. It is trite that trespass to land is actionable or maintainable at the suit of a person in exclusive possession of the property or any person that has a right to possession. The rationale being that exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed possession of it against all wrong doers except a person who can establish a better title. See Amakor vs Obeifuna (1974) ALL NLR 109, Thompson v. Arowolo (2003) 7 NWLR (pt 518) 163, Prince Abdul Rasheed A. Adetono & Anor v. Zenith International Bank PLC (2011) LPELR-SC. 78/2007, per I. T Muhammad.” Per BARKA, JCA read in context


LEAD JUDGMENT DELIVERED BY BARKA, JCA


This appeal is against the judgment of the Edo State High Court sitting at Abudu, in Suit No. HSO/12/2008, between Mr. Stanley Ajayi (for and on behalf of the children of Chief Sunday Ajayi) and Omon Idogbo, Alekijo Idogbo and John Imevbore, delivered on the 17/4/2012, wherein judgment was entered in favour of the plaintiff in the following terms:

“In view of the foregoing, I hold that the plaintiff’s claim succeeds. The Court grants reliefs 18(1) and (3) and N50, 000 (fifty Thousand Naira) for damages for trespass.”

The substance of the Respondent’s case as plaintiff before the trial High Court (lower Court), is that he is the eldest surviving son of Chief Sunday Ajayi, while the defendants are natives of Uhunmora-Ora. That upon the death of his late grandfather Ajayi Ohimai, who built a house comprising two sitting rooms and 10 rooms, and the said house not having been shared according to the native law and custom in accordance with the Ora custom, but remained family property, with all his children having equal right to the property, states that his father married and had all his children in the family house, up till the year 2002, when he died. The plaintiff still averred that upon the death of all his uncles who are the rightful persons to have inherited the property, same devolved upon all the male grandchildren of Ajayi Ohimai according to Ora custom. The plaintiff is of the opinion and did aver that as one of the grand children of Ajayi Ohimai, he has equal right, stake and interest in the house and the land appurtenances thereto with other grandchildren and therefore entitled to protect his interest. His grouse is that, the defendants without the consent and concurrence of the other members of the family broke and entered unto the undeveloped portion of the land and erected a block of two stores thereon.

The defendants on the other hand described the house in question as having two parlours and 28 rooms. It is the statement of the 3rd appellant, that after the death of Mr Ajayi Ohimai in 1952, and seven days after his burial, the house was shared in accordance with the Ora native law and custom, and same shared to Joseph Ajayi being the eldest son, and other properties shared to late Joseph Ajayi, late Chief Sunday Ajayi and Mr Isekhua Ajayi. He goes on to say that the 1st and 2nd appellants occupation of the portion of land surrounding House No. 36, Omueben Road is at the instance of the 3rd appellant who after inheriting same from his late father, leased the said land in his position as owner of the property, and therefore their stay on the land was lawful.

The plaintiff now respondent in the writ of summons filed on the 6th of October, 2008, and the amended statement of claim filed on the 28th of September, 2009 with the leave of Court, claimed against the defendants, jointly as follows:

“1. A declaration that the House No. 36 and the undeveloped portion of land appurtenance thereto along Umweben road, Broghaga Quarter, Uhonmora-Ora is the family property of Ajayi Ohimai’s children and grandchildren.

2. N1,000,000 (One Million Naira) damages for trespass in that the defendants unlawfully broke and entered Ajayi Ohimai family property and built a block of store thereon.

3. Perpetual injunction restraining the defendants, by themselves, servants, agents and or privies from further trespassing on the said land.”

The defendants now Appellants in their joint statement of defence filed on the 4th of August, 2009 admitted Paragraphs 1, 2, 7 and 14 of the statement of claim, but vehemently denied Paragraphs 3, 4, 6, 9, 10, 13, 15, 16, 17 and 18 of the statement of claim, thus putting the plaintiff to the strictest proof thereof.

Issues having been joined, the case proceeded to a full blown trial with the plaintiff calling two witnesses, and giving evidence in proof of his case. The 1st and 3rd defendants on their part testified and called three witnesses. A total of three Exhibits labelled Exhibits A, B and B1 were tendered in evidence. At the close of evidence, addresses were ordered, filed and adopted, and on the 17/4/12 the lower Court in its considered judgment, delivered the vexed judgment in favour of the Plaintiff and against the Defendants.

The Appellants felt dissatisfied with the judgment of the lower Court and on the 20/6/2012 filed a notice of appeal containing three grounds. See page 91 – 93 of the records. The appeal having been entered to this Court, Appellant filed a brief of argument on the 20/4/13 deemed properly filed on the 21/11/13.

The Respondent responded by filing a Respondent’s brief on the 11/4/14. A reply brief was subsequently filed by the Appellant on the 25/4/14.

On the scheduled hearing date, being the 18th of October, 2016, the Appellants adopted their respective briefs and prayed the Court to allow the appeal and to set aside the decision of the trial Court.

It must be noted that though Mr. B.A. Alegbe, of learned counsel for the Respondent, from the Courts records was shown to have been served hearing notice on the 10/10/2016, neither the said counsel nor the Respondent attended Court on the hearing date. Premised on the provisions of Order 18 Rule 9(4) of the Rules of this Court, the respondent’s brief having been filed, the appeal was treated as having been duly argued.

In the Appellants’ brief settled by John E. Oghenejobo, Appellant identified four issues for resolution. These are at pages 4 and 5 of the brief. They read as follows:

ISSUE ONE

Whether the Learned Trial Judge did not err and misdirect himself in law when he gave judgment against the weight of evidence put before him. (Grounds 1, 2, 3 and 4).

ISSUE TWO

Whether the Learned Trial Judge did not err in law when he presumed that the action before him was an action brought in a representative capacity rather than a suit by Respondent alone. (Grounds 1 and 3)

ISSUE THREE

Whether the Learned Trial Judge did not misdirect himself in law when he shifted the evidential burden of proof of creation of family property to the Appellant. (Grounds 1, 2, and 3).

ISSUE FOUR

Whether the Learned Trial Judge did not err in law when he assumed that any landed property of a man not shared but given out by the principle of primogeniture if he dies intestate becomes a resulting trust property and therefore family property.” (Grounds 1 and 2).

In the respondents brief of argument settled by O.B. Uade, and deemed argued by virtue of Order 18 Rule 9(4) of the Court of Appeal Rules 2011, the following issues were formulated by the respondent.

(a) Whether the trial Court properly evaluated the evidence brought before arriving at its decision.

(b) Whether there was anything on record to suggest that the House No. 36 Omueben Street, Uhonmora was shared to Joseph Ajayi exclusively that will entitle the 3rd appellant to inherit same absolutely and thus removing from not being a family property.

(c) Whether there was no evidence this suit was brought and fought in a representative capacity for on behalf of Ajayi family.

Before delving in to the consideration of this appeal, it is necessary to show my displeasure at the way and manner the appellant went about formulating his issues in this appeal. While issue one was formulated from grounds 1 – 4, of the appellants grounds of appeal, issue two is likewise formulated from the same grounds 1 and 3. Issue three is also formulated from grounds 1, 2 and three of the same grounds, and issue 4 from grounds 1 and 2, all of the same grounds of appeal. In essence, all the issues formulated are from more than one ground of appeal, and each ground of appeal gave rise to more than one issue. Granted, that even though it can be said that four issues were raised from four grounds of appeal, it is evident that one issue is formulated from more than one ground. Onnoghen CJN, in Okwuagbala v. Ikwueme (2010) 19 NWLR (pt 1228) 54, re-stated the position of the law on proliferation of issues, having stated that;

“From the issues formulated by the learned counsel for the appellant, and earlier produced in the judgment, it is clear that a total of four issues were formulated from three grounds of appeal, a situation frowned upon by the law, as it is settled law that though a counsel can formulate an issue out of a ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal, and that where more than an issue, is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues.”

As stated earlier, appellants issue one runs through appellants grounds 1, 2, 3 and 4 of the grounds of appeal. The same grounds 1 and 3 were utilized in framing issue two. Issue three is likewise distilled from grounds 1, 2 and 3 of the same grounds of appeal. In crafting issue four, the learned counsel utilized grounds 1 and 2 of the grounds of appeal. It goes without saying that issues 1, 2, 3 and 4 are derived from grounds one, while ground two is used in formulating issues 1, 3 and 4. Ground three on the other hand gave rise to issues 2 and 3. Issues 2, 3 and 4 to me are certainly a surplus sage and prolix, and incompetent deserving of being struck out and are accordingly struck out. See Gordon Tom Iwak v. University of Uyo and Anor (2010) LPELR 4345 (CA); G.K.F Investment Nig. Ltd vs NITEL Plc (2009) 15 NWLR (pt.1164) 344 SC; Mozie vs Mbamalu (2006) 15 NWLR (Pt.1003) 466; AG Bendel State vs Aideyan (1989) 4 NWLR (pt 118) 646; Ashagba & Anor v. MONN & Anor (2011) LPELR 9122 CA; Zaeed A. Ajayi & Anor vs AG Ogun State &Ors (2008) LPELR 8568.

The other issues having been struck out, the subsisting issue, which incidentally covered all the four grounds of appeal, is issue one, which reads:

Whether the learned trial Judge did not err and misdirect himself in law when he gave judgment against the weight of evidence put before him?

It is the contention of the learned counsel that the trial Court erred in law when he gave judgment against the weight of evidence put before him. It is the further contention of the learned counsel that the trial judge did not make a proper evaluation of the evidence adduced before him, the appellant and the respondent having agreed that the property of their grandfather was shared amongst their parents, being the direct children of their grandfather. He argued that from the totality of the evidence given by the witnesses, the Court ought to have considered the case of the respondent and the appellant before giving judgment. He stated that in the course of trial, both the respondent and the third appellant are agreed that 3rd appellant is the eldest son from their grandfather and further that where the Court of trial fails to properly evaluate evidence, the appellate Court is empowered to re appraise the evidence in the cold records on the totality of the evidence, and to reach a decision.

To back up his submission, counsel made reference to the case of Oyelusi vs Oyelusi (1987) 3 NWLR (pt 31) 636.

The learned counsel faults the Court’s decision given to the effect that appellants were trespassers, when the 1st and 2nd appellants entered into a valid lease agreement with the 3rd appellant, who is the head of the family and owner of the property. He contends that the 3rd appellant had the right to create a lease out of the family property without the consent of the other members of the family, once the transaction is not that of an outright sale or alienation. The case of Majekodunmi v. Tijani 11 NLR 74, and Olorunfemi v. Asha (2000) 74 LRCN 45 at 59 were cited and relied upon. Counsel also complained about the respondent’s assertion that the land is family property, while none of the respondent’s witnesses, and the respondent himself, took part in the sharing of their grandfather’s property, and therefore faults the lower Courts holding to the effect that the property in issue is family property. Premised upon the submissions made, counsel prayed the Court to resolve the issue in his favour, to allow the appeal, and set aside the judgment of the lower Court.

The respondent argued issues 1 – 3 as formulated by him simultaneously, the relevant issues being his issues 1 and 2. On evaluation of evidence, learned counsel for the respondent states that the law is trite in that the evaluation of evidence is the primary duty of the Court of trial that had the opportunity of seeing, hearing and watching the demeanour of the witness as he testified. He drew the Courts attention to the cases of Ibuluya v. Dikibo (2919) 18 NWLR (pt 1225) 627 at 641, and states that an appellate Court can only interfere with the findings and conclusions of the trial Court, where the findings arrived at are perverse, and cited the case of A G Leventis v. Akpu (2007) 9 MJSC 134 at 147 in support of his submission. Alluding to the evidence of PW 1, at p. 58, PW 2 at p. 59, that of the DW 1 under cross examination at p 61, DW 2 at page 62, DW 3 at page 65 and DW 4, also at page 65, upon which the trial Court at pages 84 to 85 based its decision, Counsel submits that the trial Judge rightly evaluated the evidence placed before him and arrived at the right conclusion. He submits that the evidence on the house being family property abound from the fact that the house was not shared, and the way it was put to use.

On whether there was evidence indicating that the suit was fought on a representative capacity, counsel relying on the authority of Jacks and Anor v. Whyte & Ors (2001) 5 NSCQR 610 at 617 – 618, where the Supreme Court held;

“I agree that where a representative order would have been granted had it been asked for failure to obtain it would not vitiate the action. See Bulai v. Omoyajowo (1968) 1 ALL NLR 72. It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order before filling his suit. The attitude this Court adopts in matters of this nature is not a rigid one. It depends on facts and circumstances of the case. If there is evidence that the party appears to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and would not upset on a bare objection of failure to obtain the approval of the Court. See Wiri v. Wuche and Ors (1980) 1-2SC1.”

and states that at the lower Court, the capacity upon which he sued is “Suing for himself and on behalf of Ajayi’ s family”, the appellant having failed to challenge his capacity to institute the suit, and there being no member of the family who challenged his action, his standing before the Court cannot be questioned at this stage. He further on the authority of Disu vs Ajilowura (2001) 4 NWLR (pt 702) 92 where the Court opined that:

“The respondent as an individual member of late Disu Dadi’s family can sue to protect her interest in the family and the family property. See Haladu Dadi vs Garba (1995) 8 NWLR (Pt 411) 12 at 14; Ugwu vs Agbo (1977) 10 SC 27@ 40.”

Opined that all he did was to protect his interest in the family property, and applying the case cited, he has the capacity to sue to protect the interest in the family property as well as the protection of the family property. He therefore on the whole, urged the Court to resolve all the issues in favour of the respondent and to dismiss the appeal.

In the reply brief filed in response to the arguments raised by the learned counsel for the respondent, counsel on the contention that there are no rules of Court or practice as to how an action can be brought in a representative capacity, counsel concedes that the respondent had the right to sue in his individual capacity in order to protect his interest in the family, but having decided to sue on behalf of the family, he must show his authority for doing so. Counsel then made reference to the cases ofImah vs Okogbe (1992) 9 NWLR (Pt 316) 166, and Ogunleye v. Oni
(1990) 2 NWLR (Pt 135) 745 to the effect that where a trial Court fails to consider and to evaluate the evidence adduced, the appellate Court is empowered to do so. It is also the contention of the learned counsel that the holding of the lower Court cited by the respondents at pages 84 – 85 does not flow from the evidence. On whether the house cannot be alienated or leased out by the 3rd defendant who is the head of the family, counsel referred to the Authorities of Jiaza v. Bamgbose (1999) 69 LRCN 1278 at 12781; Ekpendu v. Erika (1959) 4 FSC 79 at 81 amongst others, and submits that the 3rd defendant being the current head of the family could lease the land to the 1st and 2nd defendants, and cannot in the circumstances be considered as trespassers. It is the further submission of the learned counsel that the trial Court was wrong in awarding damages for trespass against him and the two other defendants in view of Exhibit A, tendered. He finally urged the Court to allow the appeal and to set aside the judgment of the lower Court.

Resolution.

Let me first of all deal with the issue as to whether the respondent had the standing to sue in a representative capacity. It must be understood, that the representation the respondent waved at the lower Court, is not for the entire family, but for and on behalf of the children of Chief Sunday Ajayi. The representation obviously excludes the 3rd appellant. The Authority of Jacks and Anor v. Whyte & Ors (supra), envisaged and deals with situations such as these. It is that where a representative order would have been granted had it been asked, failure to obtain it does not vitiate the action. This is more so, wherein one of those that the plaintiff claims to represent, objected to such representation at the Court of trial. I hold therefore on the above authority that the respondent had the standing to sue in the manner in which he did.

I understand the present appeal as being a complaint against the evaluation of evidence by the lower Court, and the conclusion reached therein to the effect that the property in consideration i.e. House No. 36, and the undeveloped portion of land appurtenance thereto along Umueben road, Bro-ghagha Quarter, Uhunmora-Ora is the family property of Ajayi Ohimai’s children and grandchildren, and further that the 1st and 2nd appellants committed trespass to the said property; and the order for perpetual injunction restraining the defendants, (1st and 2nd appellants) by themselves, servants, agents, and/or privies from further trespassing on the said land.

The position of the law on the evaluation of evidence has long been settled by a long line of authorities that surpassed counting or mention. Indeed as posited, by learned counsel for the appellant, the primary duty of a trial Judge is to evaluate and to ascribe probative value to the evidence adduced by witnesses called by the parties before it, before making any pronouncement on the case before it. This, the Court does by putting the evidence adduced by the plaintiff and that of the respondent on an imaginary scale, weighs them together and sees which weighs heavier. See Dauda v. Access Bank Plc (2016)

ALL FWLR (pt 831) 1489 at 1513. There is no dispute that the trial Court in the performance of its duty of evaluation, which involves the weighing of the evidence proffered in the context of the surrounding circumstances, considering all the relevant evidence and the ascription of probative value to such evidence called perception, is undertaken by the trial Court, using its vantage position of having seen, heard and watched the witnesses as they give evidence. See Haruna V. Isah (2016) ALL FWLR (Pt 818) 918; Wachukwu v. Owunwanne (2011) ALL FWLR (1044) 589. This duty placed upon the Court of trial is rarely interfered with, where the Court does such duty diligently. However where a trial Court fails in its binding duty of evaluating and ascribing probative value to the evidence adduced before it, or where the finding and conclusions reached are perverse, a Court of appeal will not hesitate in taking over from the trial Court in the interest of justice, and thereby doing what the trial Court failed to do. See Dauda vs Access Bank (supra).

Against this background, and the Appellant having complained about improper evaluation by the trial Court, this Court intends to examine the evidence adduced before the trial Court with a view to establishing whether the findings and conclusions reached by the trial Court are supportable from the evidence.

From the records, the Respondents’ cause of action is predicated on trespass on to his grandfather’s land, which is family land. He states that the 1st and 2nd defendants (Appellants) trespassed on to the undeveloped part of the land belonging to his deceased grandfather, which by the custom of the Ora people remains family land. The plaintiff insists that the land is now jointly owned by all the male grandchildren of the deceased Ajayi Ohimai. His two witnesses Lydia Ajayi, PW1, and Dominic Ohiomaba Aigbodion, all testified to the effect that the house and land, subject of litigation was indeed built by the said Ajayi Ohimai now deceased, and inherited by his grandchildren, amongst whom is the plaintiff/respondent. The witnesses also corroborated the respondent by stating that the house and land, now in contention belongs to all the grandchildren of the said Ajayi Ohimai, and same was not shared. The 3rd defendant, who is the third appellant, testified admitting that the house was built by his grandfather Sunday Ohimai, but stated further that the said house and adjacent land was shared to him as the eldest son of one Joseph Ajayi, who in turn was the eldest son of Ajayi Ohimai according to Ora Native law and Custom. He continued to state that though the house was shared to him, he continued to allow his relatives to reside therein as custom demanded. He admitted leasing part of the land in contention to the 1st and 2nd appellants, contending that as the owner of the house and land, he does not need the consent of his cousins to lease out the said land. DW5, the 1st appellant in his testimony, admitted having leased part of the land, but insists that the 3rd appellant was the owner of the said land. His other witnesses, Chief Omokhuduiso, DW1, Gabriel Oyuigbo Ohimai DW2, and Okundayo Adolor Ohimai DW 4, all stated in their individual testimonies, that the land in contention was shared to the 3rd appellant in accordance with the custom of the Ora people. Exhibits A, B and B1 were tendered in evidence.

The trial judge obviously relying on the evidence of PW 2, at pages 84 – 85 of the records, concluded:

“in the instant case, the property has been in existence over the years the children, grandchildren and wife of Ajayi Ohimai live in that house, the house was put to family use and against the background of the applicable native law and custom, the house could rightly be stamped a family property which no member could alienate without the consent of the other. I refer to the case of Awudu v. Daniel (2005) 2 NWLR (Pt.909) 199 @ 201.”

It is trite law, that evaluation of evidence entails the assessment of the credibility of witnesses; the evidence of the parties is assessed and weighed, with a view to ascribing probative value to it. See Wachukwu and Anor v. Owunwanne (2011) LPELR 34 SC. In the celebrated case of Odofin and Ors v. Mogaji and Ors (1978) NSCC 275 at 277, the Court per Fatayi Williams JSC, commanded that the totality of the evidence should be considered in determining which has weight and which has no weight at all. Therefore in determining which set of facts are preferable to which set, the trial Court must put the two set of facts on an imaginary scale, weigh one against the other, and then decide upon the preponderance of credible evidence, which weighs more, accept it in preference to the other and then apply the appropriate law. See also on this the cases of USN Pie v. Lawal (2015) 14 NWLR (Pt 1474) 203; Woluchem v. Gudi (1981) 5 SC 291; Duru v. Nwosu (1989) 4 NWLR (Pt 113) 24; Akintola v. Balogun (2000) 1 NWLR (Pt 642) 532.

I have hitherto briefly introduced the evidence rendered by the witnesses called by both sides. It seems clear and undisputed, that the property under consideration was built by one Ajayi Ohimai now deceased, the grandfather of the 3rd appellant and the respondent. It is apparent that both parties are laying claim to the disputed property through inheritance according to the Ora native law and custom. There is also no dispute to the fact that the 3rd appellant and the respondent are grandchildren of the late Ajayi Ohimai. However and whereas the plaintiff at the lower Court was of the view that the property devolved upon all the grand children of their deceased grandfather including himself and the 3rd defendant by virtue of the Ora custom, the respondent, now appellant is of the view that the property was shared to him as the eldest son of the late Joseph, the eldest son of their grandfather. I have earlier alluded to the legal position established by a host of cases that he who asserts has the evidential burden of proving the fact asserted. See Section 131 of the Evidence Act 2011, but unlike in criminal proceedings, the standard of proof is that on the balance of probabilities. It preponderates according to the state of the pleadings and evidence adduced. See Osukpon v. Eduoika (2016) 1 NWLR (pt 1493) 329 at 337. The poignant question is, whether the plaintiff at the lower Court proved his case as to be entitled to the reliefs awarded. It could be recollected that the plaintiff’s case at the lower Court is hinged on declaratory relief, trespass and injunction. It is trite that a claim for trespass (as in the instant case) is rooted upon the claimant’s claim that as one of the grandchildren of their deceased grandfather, they are in exclusive possession of the property in dispute; and therefore had that burden of proving that they in fact are in exclusive possession of the property or the right to such possession, and the defendant having laid claim to being the owner of the property, then title is put in issue; and for the plaintiff to succeed, he must by credible evidence establish that he has a better title to that of the defendant. This he must do by relying on the strength of his case and not on the weakness of the defence case, unless where that weakness tends to support his case. See Omotayo v. CSA (2010) 16 NWLR (pt 1218) 1 at 21; Aiyeola v. Pedro (2014) 13 NWLR (pt 1424) 409; Adesanya v. Aderounmu (2000) 9 NWLR (pt 672) 370; Onwugbufor v. Okoye (1996) 1 NWLR (pt 424) 52.

It is the law, that where a party is laying claim to title to a piece of land by inheritance, and there is no will to attest to the mode of the inheritance, he must call witnesses to testify as to his entitlement to inherit the said landed property under the appropriate native law and custom. In the instant case, the plaintiff having asserted that he inherited the property in contest under the Ora Native law and custom of inheritance, has the duty of proving his assertion by credible, compelling and acceptable evidence. It is only when the plaintiff succeeds in proving the assertion, that the defendant now offers his side of the story, which will then be placed on each side of the proverbial scale in reaching a verdict as to which weighs higher in value.

Let me now examine the evidence placed before the trial Court. The plaintiff’s case at the lower Court, revolved round his pleading at Paragraph 15, 16 and 17 thereof, which reads:-

15. The plaintiff avers that on the death of his father and his uncles who were entitled to inherit the said house No. 36 Umueben Road, Bro-ghaga quarter, Uhonmora-Ora and the land appurtenances to it devolved on all the male grandchildren of Ajayi Ohimai according to Ora Custom.

16. The plaintiff avers that being one of the grandchildren of Ajayi Ohimai, he has equal right, stake and interest in House No. 36 Umueben Road, Bro-ghaga quarter, Uhonmora-Ora and the land appurtenances thereto with other grandchildren and therefore entitled to protect his interest on the family property.

17. The plaintiff avers that the defendant without his consent and the concurrence of other members of the family broke and entered unto the undeveloped portion of the land appurtenances to the house No. 36, Umueben Road, Bro-ghaga quarter, Uhonmora-Ora and erected a block of two stores thereon.

The short of the defendants defence is that the entry by the 1st and 2nd defendant on to the land to build a store and a hut thereon is lawful, as the consent of the lawful owner was first sought and obtained and reduced into writing before the building of the two structures.

It is trite law, that the pleadings and the evidence adduced, forms the basis of the plaintiff’s case, and he wins or loses based on same. The plaintiff having founded his claim on a declaratory relief bears that legal duty of establishing that the property in contention devolved upon him as one of the grand children of the deceased Ohimai. Of interest is the fact that the property and the land in contention is not in dispute, and therefore not in issue. The lower Court after evaluating the evidence before it, opined that “The property has been in existence over the years the children, grandchildren and wife of Ajayi Ohimai live in that house, the house was put to family use and against the background of the applicable native law”. In other words, the trial Court ascribed long possession by the children, grandchildren of the late Ajayi Ohimai, to connote ownership. It has been held that by the provisions Sections 35 and 145 (1) of the Evidence Act 2011, acts of long possession by the plaintiff can be prima facie evidence of ownership. Acts of possession and enjoyment of land, may be evidence of ownership of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other lands so situated or connected with by locality or similarity, that what is true as to one piece of land, is likely to be true of the other. See Burutolou v. Yelbake (2015) ALL FWLR (Pt 771) 1534 @ 1552, Elegushi v. Oseni (2005) All FWLR (Pt. 282) 1837; Titiloye V. Olupo (1991) 7 NWLR (pt 205) 519. per Adah JCA. The Respondent at the Court below in an effort to prove his case relied on the evidence led by the PW 1 and PW 2. From the evidence of the PW 11 at page 58 lines 28, 31, and 35 of the record of proceedings; PW 2 at page 59 lines 33, where he asserted that:

“7 days after the burial of the late Ohimai, they shared the farmland but the house was not shared up till date.”

And the evidence of the respondent, where he stated that:

“The main building was not shared. It remains family property…. the house and the adjoining land was not shared up till now, we the grand children have not shared the property. I have my room in that house. My mother live in that house.”

Based materially on these aspect of the evidence rendered by the plaintiff, and the other pieces of evidence, which was referred to by counsel to the Respondent in his brief, the learned counsel is of the view that the trial Court rightly evaluated the evidence before it, to the conclusion that the house built by Ajayi Ohimai is now family property. The appellants on the other hand, assert that the House in contention and the land now being disputed was shared to him by virtue of the Ora Native law and Custom. The 3rd appellant’s witness, Chief Omokhuduiso (DW1) at page 60, lines 33 – 34, testified thus:

“After the death of Ajayi Ohimai, we shared the property of Ajayi Ohimai we do not share houses because he may have younger ones. The house is given to the eldest son of the deceased. The eldest son of the deceased is Joseph Ohimai. 14 days after burial we went to the farmland was shared to 3 of the sons. That is the custom in Ora. That after the sharing of the farmland, the eldest son was advised not to send away the younger ones so that they will have a place to stay until they can build a place for themselves. That is the custom of Uhunmora. No one has the right to challenge the eldest son, he knows how to go about his inheritance. The Eare is in all quarters. I know Josephs son. Joseph is late. Imuewore is the son of Joseph. When Joseph died Imevbore inherited the property. Then Uhunmora community bank operated at a certain time in the property.”

The evidence adduced by the DW 3 and DW 4 is interesting. DW3 is the 3rd appellant himself. It is his evidence that the house was shared to his father Joseph Ohimai as the senior son to the late Ajayi Ohimai, and then to him as the senior son to the said Joseph Ohimai. Then at page 65 of the records, the 3rd appellant continued to state under cross examination, as follows:-

“I was told that my grandfather’s property was shared amongst his children. I grew up to meet my grandfather’s children and my father living in that same house. All my father’s brothers are dead and my father is also dead. After the death of my father and my uncles, their children continued to live there. I cannot remember the year the house was shared to me. My father died in 1958. I cannot remember the first rent I collected from the bank. My father’s other children were not present when the house was shared. Stanley Ohimai and Eare were present when the property was shared to me. I do not know the name of the Eare. I was not challenged by my cousins when the defendants built on the land. I inherited the house, land and part of the farm. My father’s property was not shared to any person; I inherited it till date one of my grandfather’s wives is living in that house. I did not drive her away. I do not know who maintains the compound, Ohimai told me the house was shared to my father.”

DW4 Okundayo Adolor Ohimai, testified on the material issue as follows:

“After my father died, the house was shared to Joseph … After the death of Joseph, his property was inherited by John Imevbore Ohimai. He inherited the property as the most senior son. He is the eldest son of his father. This accord with Ora custom. It is against the law for Joseph to drive away any person living in the house”. Still under cross examination at pages 66 from lines 1 – 4, the witness stated further that: “My father died 28/2/1952. I was 5 years old. He was not present when the sharing was done. My eldest brother died in 1958, at that time I was 11 years old, I was not present when Joseph’s property was shared.”

The evidence led by the DW 2, Gabriel Oyugbo Ohimai, the Secretary of Ora Traditional Council. His testimony reads as follows:-

“Late Ajayi Ohimmai built a house when he was alive, where his extended family were living with him. The house was at No. 36 Omueben Road. After the death of Ajayi Ohimai, the house was given to his first son Joseph. The cocoa farm was shared amongst the three surviving sons, Joseph Ajayi, Sunday Ajayi and Iseaua Ajayi. At the death of Ajayi Ohimai, the property was shared by the Eare of Ukpafekahare quarters. The house at No. 36 Omueben street consist of 18 rooms. Joseph inherited the house as he is the eldest son. It is the tradition for the first son to inherit the house. This custom operates in Ora land. My late brother was present when the property was shared. I was grown up and had attained the age of manhood to attend such a meeting. After the death of Joseph, his son John Imevbore Ohimai, inherited the house. A senior son who inherits a house, allows the brothers and sisters to live there until they can build their own house. When John inherited this building, it was roofed with thatch which later dilapidated. At a time, the 1st and 2nd Defendants required a place to erect a store; I directed them to the 3rd defendant who gave them a place where they are now selling. In Ora custom when a son inherits a property, he does not consult with others on how to use the property.”

This witness proceeded to state in evidence that;

“The other male children are entitled to other property, land and not the house.”

He conceded that some people are still living inside the house, including Sunday Ajayis wife, PW 1, and Isekhu as children, but insists that the house was given to Joseph Ajayi, and therefore not family property, as under Ora custom, there is nothing like family property. He goes further to state that under the custom, the grandchildren are allowed to live in the house as its own.

I find this piece of evidence by the DW 2 most probable, credible and more likely. PW 1 in her evidence stated at page 72 lines 9, that; “the first son was supposed to inherit the property of her father in law”, and went further to say that the house was not shared therefore maturing into a family house. PW 2 on his part, stated that 7 days after the death of Ajayi Ohimai, they shared the farmland but the house was not shared till date, and the house remained family property, but admitted that as at the time that Ajayi Ohimai died, both Joseph and Sunday, the children of the deceased were of age, and further that under the Ora custom, the defendant can inherit the entire house.

It’s evident that from the excerpts of the testimonies led by the respondent, there was no explanation as to why the house was not shared to the first son who then appeared to be alive, and who and when the decision was reached transforming the house into a family house, and better still, evidence to the effect that under the Ora native law and custom, once landed property of a deceased man is not shared, it automatically becomes family property. I do agree with the appellants that inspite of the failure of the plaintiff at the lower Court to prove its case, the appellants called evidence as to the landed property being shared to the father of the 3rd appellant being the first son of his father, and upon the death of his father to the 3rd appellant in accordance with the custom of the Ora people. It is my respectful view that the respondent having failed to prove his assertion that the house was family property; the trial Court erred in coming to such a conclusion. In the face of the unchallenged evidence led by the third appellant, where placed side by side with that adduced by the respondent, that of the appellant preponderates as being credible and weighty enough to pull the proverbial scale of justice in its favour. I therefore fail to agree with the learned counsel for the respondent and the lower Court that the property in contention, for reasons not adduced, merely because the house was not shared out, while all other properties were so shared, and the house being used by the family, which use has been explained by the appellants, the property can be appropriately designated as a family house (property).

The law has been established beyond peradventure that the primary duty of the trial Court is to evaluate the evidence led before it, and having done that, with the benefit of having seen the witnesses testify and having observed their demeanour, its decision would not ordinarily be disturbed unless it is perverse. Where the Court however fails to utilise the benefit of having watched, listened and assessed the witnesses before it, and thereby made no evaluation or assessment of witnesses, the appellate Court is empowered and will set aside the conclusions reached, and make its own evaluation of the evidence led, particularly where the credibility of the witnesses is not a determinant factor. See Imah vs Okogbe (1992) 9 NWLR (Pt. 316) 166; Aregbesola v. Oyinlola (2011) 9 NWLR (Pt 1253) 458 @ 480; Ebba v. Ogodo (1984) 1 SC NLR 372; Begha vs Tizza {2000) 4 NWLR (pt 652) 193; Igbeke v. Emordi (2010) 11 NWLR (pt 1204) 1 @7. In the words of the great jurist, Nnamani JSC, in Are v. Ipaye (1990) NWLR (Pt.132) 298:-

“I think it has to be appreciated that the evaluation of evidence and the findings of facts are within the province of the trial Court, and that an appellate Court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts.”

In the instant case, the trial Court having failed to properly evaluate the evidence led before it, which led to a perverse decision, occasioning a miscarriage of justice, the findings and the conclusions reached cannot stand.

Having come to the instant conclusion, the question as to whether the appellants can be held liable for trespass becomes a non-issue. Trespass to land has been defined as an unjustified interference or intrusion with exclusive possession of land. See Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt 93) 215, Tukuru v. Sabi (2013) 10 NWLR (Pt 1363) 442 at 461, Evelyn v. Warri Local Government and Anor (2016) 10 NWLR (Pt 1520) 337. It is trite that trespass to land is actionable or maintainable at the suit of a person in exclusive possession of the property or any person that has a right to possession. The rationale being that exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed possession of it against all wrong doers except a person who can establish a better title. See Amakor vs Obeifuna (1974) ALL NLR 109, Thompson v. Arowolo (2003) 7 NWLR (pt 518) 163, Prince Abdul Rasheed A. Adetono & Anor v. Zenith International Bank PLC (2011) LPELR-SC. 78/2007, per I. T Muhammad. In the present case, it having been established that the property under consideration was inherited by the 3rd appellant who through the instrumentality of Exhibit A, leased the said land to the 1st and 2nd appellants, they cannot be liable for trespass. The inevitable conclusion is that the decision of the trial Court in which the appellants were held to have trespassed on to the property in dispute cannot be maintained.

Having therefore determined the sole issue canvassed in favour of the appellant, this appeal succeeds and it is hereby allowed. The decision of Justice O.O. Imadegbelo J, in suit No. HSO/12/2008, between Stanley Ajayi (For and on behalf of the children of Chief Sunday Ajayi) v. Omonidogbo, and 2 Ors, delivered on the 17th of April, 2012 is hereby set aside. Costs of N50, 000.00 to the 3rd respondent.

UWA, JCA

My learned brother, HAMMA AKAWU BARKA, JCA, has comprehensively dealt with the issue canvassed in favour of the Appellant, I adopt same as mine in also allowing the appeal and setting aside the judgment of the lower Court. I abide by the order made as to costs.

UGO, JCA

I had the advantage of reading in advance the lead judgment delivered by my learned brother HAMMA AKAWU BARKA JCA and I agree completely with my lord’s reasoning and conclusion on the appeal. In the circumstance, I do not intend to add anything else to what has been said by my lord other than adopt his Judgment as mine and hold, and order too that the appeal is meritorious and it should be and is hereby also allowed by me and the judgment of the lower Court set aside.

I also abide by my lord’s order as to costs.