Adebiyi Layinka & Anor v. Adeola Makinde & Ors

I have had a preview in draft of the judgment just delivered by my learned brother Belgore, JSC and I am in full agreement that the appeal be dismissed as there are no cogent reasons advanced by the appellants to warrant an interference with the concurrent findings of fact by the courts below. I also award N10,000.00 costs in favour of each set of respondents against the appellants.

 I have had a preview of the judgment of my learned brother, Belgore, JSC, in draft, and I agree with him that the appeal has no merit at all. The history of failures of the appellants in many courts since 1944 has established that their claim has no substance and the courts below were right in dismissing it. The appellants have failed to identify any ground warranting interference with the concurrent findings of fact. I dismiss the appeal and affirm the judgment of the Court of Appeal. I award N10,000.00 in favour of the respondents.

P.5

I have had the opportunity of reading in advance the judgment of my learned brother Belgore, JSC and agree with it that the appeal lacks merit. This action was fought by the parties upon a large body of evidence both oral and documentary. The plaintiffs and 1st – 5th defendants are two families, namely Layinka family of Ibadan and Osanyidina family respectively. Some of the documents relied on by the plaintiffs were largely found by the learned tria] Judge not to have supported their case. On the other hand, judgments upon which the defendants based their special defence of res judicata were found by him to have been given without jurisdiction and accordingly he ruled that that defence was without foundation. That ruling has not been appealed and no comment thereon is necessary. In the main action by the plaintiffs, they claimed against all the defendants for
(a) a declaration of title to a vast area of land,
(b) N50,000.00 general damages for trespass and
(c) injunction to restrain further trespass. As against the 1st-5th defendants forfeiture of a specified portion of the land; and as against the 6th defendant, N100,000.00 per day from April 1, 1987 as damages being the value of the quarrying from the land. And or in the alternative:
(i) a declaration that the 1st – 5th defendants have no right to alienate any part of the land,
(ii) an order to render account of the quarrying from the land,
(iii) an order setting aside all agreements entered into by the defendants in respect of the said land, and
(iv) injunction against the 6th defendant from entering the land. The 1st -5th defendants counter-claimed for a declaration to a customary right of occupancy to the parcel of land in dispute and for perpetual injunction to restrain the plaintiffs from the said land.
Following the decisions of the two courts below, this appeal has come to this court. What has been brought before this court by the appellants is basically for us to consider the concurrent findings of fact made by the two courts below in this case in resolving the appeal.

P.6

In their brief of argument, the appellants acknowledged this when they said: “In this appeal the appellants are faced with concurrent findings of the trial court and the lower court both on the issue of traditional evidence and acts of possession and ownership positive and numerous to entitle the plaintiff to be declared as the owners of the land in dispute. It is trite law that the Supreme Court will not interfere with the concurrent findings of fact made by both the trial court and the Court of Appeal where there is sufficient evidence in support of such findings and where there is no substantial error on the record to show any miscarriage of justice.” The suit was instituted at the High Court, Ibadan. There was a counter-claim by the 1st-5th defendants. The contest between the parties was upon a large body of evidence both oral and documentary based upon issues joined by the parties on their pleadings. On 19 August, 1991, the learned trial Judge (Oluborode, J.) in a reserved judgment dismissed the plaintiffs’ claim and allowed the 1st-5th defendants’ counter-claim with costs as contained in the enrolled order as follows: “The plaintiffs’ case is dismissed in its entirety against all the defendants while the Court grants the relief in the counter-claim of the 1st-5th defendants. The 1st- 5th defendants having succeeded in their counter-claim this court accordingly grants the following reliefs.
(1)  Declaration of Customary right of occupancy to all that piece or parcel of land situate, lying and being at Abanla area which is verged Red on Plan No. RADS/1418/88 and

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(2)  Perpetual injunction restraining the plaintiffs, their servants, agents or privies from interfering, in any manner with the rights of the 1st defendants on the said land in dispute. cost ofNI2,000.00 is hereby awarded in favour of the 1st to 5th defendants while I assess the 6th defendant’s costs at N2,000.00K against the plaintiffs.”
Before reaching a decision, the learned trial Judge made the following findings amongst others:
(1)  On the traditional history relied on by each side, he was unable to determine which was more probable and therefore had to test each by reference to recent acts of possession and ownership in line with the principle laid down in Kojo II v. Bonsie (1957) 1 WLR 1223.
(2)  There was no clear identity of the area said to have been partitioned to Layinka in relation to the land in dispute since after the alleged partition, dispute continued between both parties and that Layinka was adjudged a trespasser and fined on each occasion as per exhibits F and G.
(3)  Osanyindina died in 1905, his children and grandsons occupied portions of land in dispute not as tenants but as inheritors.
(4)  The evidence of witnesses, particularly PW.4, called as tenants by the plaintiffs has no credibility. This is because although Alabi and Ogunrinde (children of Layinka) instituted action against Makinde and Ladipo (grandchildren of Osanyindina) in 1944 for allegedly preventing them from collecting Ishakole from tenants since 1930 the year Layinka died, PW.4 testified he continuously paid Ishakole. Furthermore, PW4 said he had stopped paying Ishakole to the plaintiffs’ family after the death of Alabi and Ogunrinde but PW.10 said their tenants including PW4 were still paying Ishakole to their family till date.
(5)  Evidence by the plaintiffs of receipt of Ishakole from tenants in respect of the land in dispute was regarded as untrue while that given by the defendants was accepted.

P.8

(6)  In 1974 the plaintiffs claimed as joint owners of the entire area including the land in dispute whereas in the present suit they claim to be sole owners that makes their claim incredible.
(7)  The plaintiffs have failed to show that they are in exclusive possession of the land in dispute.
(8)  Having regard to the recent acts of possession and ownership on the land in dispute, the traditional history of the defendants is more probable than that of the plaintiffs.
The Court of Appeal, Ibadan Division, considered each of the complaints against the findings of fact by the trial court and came to the conclusion that those findings were justified. On 26 June, 1995, in a reserved judgment, that court dismissed the appeal and upheld the judgment of the trial court both in regard to the main claim and the counter-claim as well as the costs awarded. The further appeal to this court is fought upon the five issues raised for determination as follows: 4.01.Issue No. I based on Grounds 1,2,5 and 6 Whether the lower court made proper use of exhibits E, F, G, H, J, K, L, M, R, BE, U. 1 and U 2 along with the oral evidence of the appellants in resolving the issue of acts of possession and ownership as between the plaintiffs and the defendants before resolving the same in favour of the defendants/respondents. 4.02. Issue No.2 based on Ground3 Whether the learned Justices of the lower court were right while considering the acts of possession of the appellants in the use they made of exhibits E, F, G, H to the effect that
(1) Layinka was not adjudged as owners of the land but a caretaker
(2) He was a trespasser
(3) the boundary of the land allotted to him was not ascertained.

P.9

4.03. Issue No.3 based on Ground 4 Whether the lower court was right in holding that the trial court gave proper consideration to exhibit uR” i.e. D.O’s report of 1933 when in fact the trial court considered only paragraph 4 out of the 19 paragraphs of the report. 4.04. Issue No.4 based on Ground 7
Whether the lower court was right in holding that the appellants were claiming special damages against the defendant which has not been proved.
4.05 Issue No.5 based on Ground 8
Whether the lower court was right in holding that the trial court exercised his discretion judiciously and judicially in awarding a heavy cost of N14,000.00 against the appellants in, a simple land matter. The appellants have not been able to show in what way the findings of fact are not supported by evidence. An appellate court has a limited function in the determination of a dispute between the parties. It does not try a case; it does not see and hear witnesses testify; as a result it does not experience the subtle and often influencing nuances of seeing and hearing witnesses give account of facts upon which findings are based by a trial court. An appellate court upon complaints made to it is concerned with seeing whether a trial court has or has not made some substantive or procedural errors, or has or has not failed to make any or proper findings which the evidence available deserves, and accordingly to take such decisions in the interest of justice by way of correction or confirmation of the decision of the trial court: see Igboke Oroke v. Chuka Ede (1964) NMLR 118 at 119-120; Ajadi v. Okenihun (1985) 1 NWLR (Pt.3) 484 at 492; Nwokoro v. Onuma (1999) 12 NWLR (Pt. 631) 342 at 355- 356. Hence it is said that a trial court has the primary function of assessing the quality of the evidence received by it, by giving credence to or expressing doubt about witnesses whom it had the advantage of seeing and hearing testify, weighing the evidence of one witness against that of another where appropriate, making findings  of fact and finally deciding, in a civil case, which side of the case presented to prefer: see Ebba v.Ogodo (1984) 1 SCNLR 372; (1984) 3 SC 84 at 98; Atanda v.Ajani (1989) 3 NWLR (Pt. 111) 511 at 524.

P.10

It is not the function of an appellate court to retry a case on the notes of evidence and to set aside the decision of the trial court merely because the appellate court would have reached different conclusions on some or even all of the facts. What is important is that if there was evidence before the trial court from which its findings can reasonably be supported, its decision ought not to be disturbed: see Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) 41; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130. But when an appellate court is satisfied that the trial court had failed to draw the correct inferences from proved or accepted facts or has wrongly assessed the probative values of undisputed evidence, it will interfere with the findings, and where appropriate make its own findings, and set aside the improper or wrong decision: see Fashanu v.Adekoya (1974) 6 SC 83 at 91; Oko v Ntukidem (1993) 2 NWLR (Pt.274) 124 at 135. In the present case there is the question of concurrent findings of fact. Such findings will not be interferred with by this court unless they are shown to be perverse: see Adebayo v. Ighodalo (1996) 5 NWLR (Pt.450) 507; Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt.620) 552. That has not been shown in this case. I accordingly answer issues 1, 2 and 3 in the affirmative.
In regard to issue 4, which is whether the damages claimed against the 6th defendant were in the nature of special damages, it is necessary, first, to recite paragraph 52 and 53 of the amended statement of claim as follows:
“52. The current prices of hard cores, gravels and ordinary sand which are being prospected daily on the land in dispute at the expense of the plaintiffs are N100.00 and N40.00 per ton of each of the items respectively.

P.11

The 6th defendant had not been making less than a net amount of a hundred thousand naira (N100,000.00) per day as hundreds of tons of these products are produced and sold daily.” Then in the relief sought in this regard against the 6th defendant, the damages are stated thus: “The sum of one hundred thousand naira (N100,000.00) per day from the 1st day of April, 1987 being the daily net value of the stones, hardcores, gravels and properties of the plaintiffs being removed and sold daily by the 6th defendant on the area edge yellow on the plan referred to above.”
It has been argued by the appellants that this is a claim for general damages. I am unable to accept that argument. The appellants have specifically pleaded what they allegedly lose daily in money value by the activities of the 6th defendant on the land. The distinction between special and general damages is usually a question of pleading and proof, and the mode of assessment. If what is pleaded shows in what manner the damages can be calculated and quantified upon strict proof: see Ijebu-Ode Local Government v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at p. 158; Esiegbe v. Agholor (1993) 9 NWLR (Pt.316) 128 at p. 145; Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493 at p.502-503. The two courts below held that the 6th defendant was entitled to rely on the title of the 1st -5th respondents to exploit the land in dispute. They further held that the N100,000.00 damages per day being a claim for special damages was not strictly proved. I therefore answer issue 4 in the affirmative. Finally, issue 5 is on the question of costs of N14,000.00 awarded by the trial court against the appellants.

P.12

The complaint is that the award is too high and was not done in the proper exercise of discretion, no reasons for the award having been given. I must observe that it is not correct to say no reasons were given for the award of costs in this case by the learned trial Judge. Learned counsel for the 1st-5th defendants (Alhaji Agbaje, SAN) who also had a counter- claim (which succeeded), asked for N20,000.00 costs. He said that the survey plans they filed cost N10,000.00,several certified  copies of documents cost money, and that there had been a total of 50 appearances while the case lasted four years. Learned counsel for the 6th defendant, Chief Delano, asked for N10,000.00 costs. He said that the 6th defendant paid ledger fee of N3,000.00 and made 20 appearances. Learned counsel for the plaintiffs, Mr. C Olanipekun, said that the plaintiffs spent N15,000.00 to produce their survey plans. It was therefore obvious to the learned trial Judge that there was basis for award of costs. He awarded N12,000.00 costs to the 1st-5th defendants and N2,500.00 to the 6th defendant. He took into account (and so stated) the expenses incurred by the successful parties, the number of appearances and the length of time the case occupied. The award of costs is always at the discretion of court exercised reasonably. It is however well settled that costs follow the event which means that a successful party is entitled to costs unless there is any disenabling circumstance to deprive him of that entitlement: see Adenaiya v. Governor-in-Council (1962) 1 SCNLR 442; Obayagbona v. Obazee (1972) 5 SC 247. Costs are not awarded as a punitive measure against the losing party but for the purpose of meeting the legitimate expenses of the successful party either wholly or partially as the court may see fit: see Akinbobola v. Plisson Fisco Nigeria Ltd. (1991) 1 NWLR (Pt. 167) 270. When costs are awarded on that basis, i.e. judicially and reasonably to compensate a successful party, an appellate court will be quite wary to interfere with the discretion of the court as to the amount of costs: see Rewane v. Okotie-Eboh (1960) SCNLR 461. On the other hand, if the award is made against established principles, it will be set aside by an appellate court: see Agidigbi v. Agidigbi (1996) 6 NWLR (Pt.454) 300.
As that is not the case here, I answer issue 5 in the affirmative. In the circumstances, I too find no merit in this appeal and therefore dismiss it with N10,000.00 costs to 1st – 5th respondents Hand N10,000.00 costs to the 6th respondent against the appellants.

P.13

 I was privileged to have read in advance the judgment just delivered by my learned brother Belgore,  its draft form. In the said judgment, he had reviewed the facts of the issues raised thereon and had properly come to the conclusion that the appeal lacks merit. It is evident that this appeal is against the concurrent findings and facts made by the two Courts below. For the appeal to succeed in the circumstances the appellants must show from the arguments advanced in their favour that the courts below in making the findings which were made by them, have proceeded upon improper or wrong valuation of the offence thereby reaching the wrong conclusions in respect of their findings. This is because this court is very wary to interfere with decisions of the court below, moreso, whereas in the instant case the appeal flows upon concurrent findings of the two courts below. See Adebayo v. Ighodalo (1996) 5 NWLR (Pt.450) 507; Oko v. Ntukidem (1993) 2 NWLR (pt.274) 124 at 135.
Another point which deserves to be mentioned is with regard to issue 4 which is, whether the damages claimed against the 6th defendant were in the nature of special damages. A perusal of the amended statement of claim shows quite clearly that the appellants cannot be right in claiming that the damages awarded in favour of the 6th respondent was in the nature of general damages. In disagreeing with that view, it must be borne in mind that special and general damages are treated differently. Where special damages are claimed as in this case, there must be evidence that strictly require to prove the nature of the damages being claimed. See Esiegbe v. Agholor (1993) 9 NWLR (Pt.316) 128 at page 145.

P.14

Therefore it follows that in the instant case, the appellants must prove strictly those items of their claims for special damages to succeed. The trial court below after a due consideration of the evidence, held that they failed to prove their claims as required of them. The courts below affirmed this view of the trial court. I have after a careful consideration of the evidence, also have no reason to depart from the considered views of the courts below. The courts below also held that the 6th respondent having obtained from the 1st – 5th respondents the right to the disputed land, were properly thereon and entitled to use same for its benefit. As I agree with that conclusion, I must resolve issue 4 against the appellant. The question raised in respect of issue 5 is very clearly upon the evidence before the court. The question raised with where the costs awarded by the trial court against the appellants in the sum of N14,000.00 must clearly be resolved against the appellants. It is manifest from the facts which the learned trial Judge duly considered that the costs awarded against the appellants were properly considered and like the court below, I have no reason to disturb the award of costs so made. In the result, I dismiss this appeal in its entirety upon the few reasons given above and the fuller reasons given in the judgment of my learned brother, Belgore, JSC. I award the sum of N10,000.00 against the 5th respondent and also costs in the sum of N10,000.00 to the 6th respondent.

Appeal dismissed.

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