CASE OF THE DAY: MR. WAHAB MAJEOBAJE V. MR. RAHEEM JEJE BELLO

MR. WAHAB MAJEOBAJE V. MR. RAHEEM JEJE BELLO

In the Court of Appeal

Fri Sep 16, 2022

Suit Number: CA/IB/152/FULL JUDGEMENT

1. (DELIVERED BY ISAIAH OLUFEMI AKEJU)
2. This is an appeal against the judgment of the High Court of Justice, Oyo State, sitting at Ibadan (herein after referred to as the Lower Court) delivered on 21st day of December, 2016 by Honorable Justice M. I. Sule.
3. The Appellant was the defendant at the lower Court while the Respondents were the Claimants.
4. A summary of facts of the case that led to this appeal is that, the Respondents who were the claimants at the lower Court instituted this action by a writ of summons filed on 10/6/2013, claiming for themselves and on behalf of the entire children of Osagade of Late Pa Jejelola against the Defendant/Appellant the reliefs as contained in Paragraph 33 of their Statement of claim. See pages six to seven (6-7) of the record of appeal.
5. At the close of the pleadings, parties called witnesses to prove their case. The 1st claimant gave evidence in support of their case and called one witness, while the defendant gave evidence in support of his case and also called one witness Adewale Ogunjimi.
6. At the end, judgment was entered partly in favour of the Claimants/Respondents against the Appellant. The lower Court held inter alia as follows:
7. “...The claim therefore succeeds in terms of reliefs (a), (b), (c) only, while relief (d) is dismissed”. 
8. It is against the above decision that the Appellant’s notice of appeal dated 7th day of March, 2017 was filed and it contained eleven (11) grounds of appeal.
9. The parties in accordance with the rules of this Court filed their respective briefs of argument.
10. The Appellant in his brief of argument dated 2nd June, 2017 distilled six (6) issues for determination from his Eleven (11) grounds of appeal filed. The issues are adumbrated as follows;
11. (i) Whether having regard to the Pleadings and there being no legally admissible evidence in support of the Claimant's relief before the Court the trial Court was wrong in granting the Claimants' Claim. (Covers Grounds 1&2 of the Notice of Appeal)
12. (ii) Whether the trial learned Judge was wrong when it granted the Claimants' Claim based on supposed evidence of partition by the Claimant, when the Claimant's evidence were contradictory and no legally admissible evidence of partitioning was led by the Claimant. (Covers Grounds 3, 6 & 7).
13. (iii) Whether the learned trial judge was wrong in his finding that the Claimant/Respondents are members of Jeje family considering the totality of the content of Exhibit "G" on the descendants of Jeje. (Covers Grounds 4 & 5 of the Notice of Appeal).
14. (iv) Whether considering the pleading and the evidence before the trial Court, the trial Judge was wrong in awarding the sum of N50,000:00 as general damages against the Defendants/Appellant in favour of the Respondents. (Covers Grounds 9 and 12 of the Notice of Appeal).
15. (v) Whether the learned trial judge was wrong in applying Section 167 (d) of the Evidence Act 2011 to the case of the Appellant to find that the Respondents are members of Jeje family. (Covers Ground 11 of the Notice of Appeal)
16. (vi) Whether having regard to the evidence led by the counter claimant, the trial judge ought to have granted the counter-claim of the counter-claimant. (Covers Grounds 8 & 10 of the Notice of Appeal).
17. Learned counsel to the Respondents in the Respondents’ brief of Argument dated 25th day of November, 2019 distilled two issues for the determination of this appeal. The said two issues are adumbrated as follows;
18. (i) Whether the learned trial Judge was right in granting the reliefs of the Claimants/Respondents.
19. (ii) Whether the learned trial Judge was right in dismissing the Counter Claim of the Defendant/Appellant.
20. Therefore, in the determination of this appeal, I will utilize the six issues articulated by the Appellant the obvious owner of this appeal.
21. ISSUE NO.1
22. Whether having regard to the Pleadings and there being no legally admissible evidence in support of the Claimant's relief before the Court the trial Court was wrong in granting the Claimants' Claim. (Covers Grounds 1 & 2 of the Notice of Appeal).
23. Learned counsel submitted that the claimant’s two witnesses who are illiterates made their statement in Yoruba language which was translated into English language. The said witnesses’ statements on oath made by the claimants’ witnesses in Yoruba language were not filed and presented before the Court. The depositions which were adopted by the claimants’ witnesses were in English and there was no explanation of where the depositions made in Yoruba language by the witnesses were. The claimants’ witnesses therefore adopted written depositions not made by them and which they did not understand.
24. It is argued that English Language was foreign to their understanding. The Appellants owed a duty to the Court to have presented the very depositions made by the witnesses. The adoption of a different deposition was very defective and it could not have been rectified by the use of an illiterate jurat. He referred the Court to the case of GUNDIRI VS. NYAKO 2014 2 NWLR 1391 PG 211 at 241.
25. Counsel said that, in this case the Claimants/Respondents witnesses Statement on Oath were made in a language other than English Language that is, in Yoruba Language and the very depositions made by the witnesses were not presented before the Court. 
26. He added that in this case the written deposition was made in Yoruba Language, is borne out by the thumbprint and the purported illiterate Jurat of CW1 & CW2 contained at the signature pages of the said written depositions at Page 13 lines 2-8 and Page 66 lines 2-8. In essence, the adoption by the Claimants/Respondents’ witnesses of written depositions not made by them was defective and Incompetent as there was no legally admissible Claimants witnesses’ Statement on Oath before the trial Court.
27. It is submitted that the Claimants’ witnesses Statements on Oath as relied on by the trial judge in giving Judgment to the claimants were defectives and legally inadmissible. According to the counsel the claim of the Respondents was therefore not supported by any evidence. In other words, there being no legally admissible evidence in support of the Claimant's relief before the Court.
28. He urged the Court to allow this Appeal and set aside the decision of the trial Court granting the Claim of the Respondents as there was no legally admissible evidence before the Court. He referred the Court to the case of GUNDIRI VS. NYAKO (SUPRA).
29. Learned counsel maintained further that assuming but without conceding that there was legally admissible evidence in support of the Claimant's relief before the trial Court, the translated English version of the witness statement on oath adopted by the two Claimants’ witnesses did not contain illiterate Jurat in compliance with the Law, which also renders the statements Inadmissible.
30. Counsel submitted further, that it is mandatory for the translator of statements to have his name and signature on the interpreted version. Therefore, having not complied with the provisions of the law, the said 2 witnesses Statement on Oaths are also defective and cannot be relied upon. He referred the Court to the case of GUNDIRI VS. NYAKO Supra at page 242.
31. Counsel insisted that the failure of the interpreter in the instant case, to sign the Depositions goes to show that the Claimants/Respondents’ witnesses as deponents had no knowledge of the contents to which they deposed to.
32. He added that Witness deposition to be regarded as authentic and true, has to be individually identified with its maker. When a witness deposition cannot be identified with its maker, the individuality and distinction of such deposition would be affected. He referred the Court to the case of GUNDIRI VS. NYAKO (2014) 2 NWLR PART 1391 at page 211 particularly at 241. 
33. Learned counsel urged the Court to resolve this issue Against the Respondents and hold that the Claimants’ Witnesses Statement on oath are incompetent, inadmissible and accordingly dismiss the Claimants’ Claim.
34. In response learned counsel for the Respondents said that the Appellant in his Brief of Argument made a heavy weather of the fact that the Respondents’ witnesses Written Statements on Oath that were Adopted before the Lower Court did not contain the Yoruba translation and therefore the said Written Statements of Oath are incompetent.
35. It is submitted that the Appellant was present before the Lower Court on 4th of November, 2015 and 2nd of February, 2016 when CW1, Alhaji Mukaila Korede and CW2, Raheem Bello Jeje adopted their respective Written Statements on Oath without raising any eye brow or opposing same. He referred the Court to pages 94 and 101 of the record.
36. It is further submitted that the Appellant even thoroughly cross-examined the said witnesses on the alleged “incompetent’ Written Statements on Oath. See pages 95-97-100, 103-105, and pg. 154 of the Record.
37. It is therefore humbly submitted that it is too late in the day for the Appellant to cry foul or Wolf. See the cases of;
38. BLESSING VS. FEDERAL REPUBLIC OF NIGERIA (2015) ALL FWLR (Pt. 805) Pg. 1 at Pg. 37, 
39. ODUNEYE VS. FEDERAL REPUBLIC OF NIGERIA (2015) ALL FWLR (Pt. 776) Pg. 399 at Pg. 433.
40. It is therefore contended that the Appellant waived his right of complaint when he partook in the trial before the Lower Court without objecting to the adoption of the said Witnesses Written Statement on Oath and so cannot now complain on Appeal. Counsel referred the Court to the following cases:
41. OBISI VS. CHIEF OF NAVAL STAFF (2004) ALL FWLR (Pt. 215) Pg.193; 
42. SHEKSE VS. PLANKSHAK (2008) ALL FWLR (Pt. 439) Pg. 422; 
43. ADEMETAN VS. INCORPORATED TRUSTEES OF THE REDEEMED CHRISTIAN CHURCH OF GOD (2016) ALL FWLR (Pt. 821) Pg. 1502;
44. GUINNEsS (NIG.) PLC VS. ONEGBEDAN (2013) ALL FWLR (Pt. 682) Pg. 1741; 
45. ADELUSI VS. GOVERNOR OF LAGOS STATE (2016) ALL FWLR (Pt. 826) Pg. 461.
46. In response to the contention and submission of the Appellant that the Respondents’ witnesses Written Statement on Oath was not signed by Interpreter, It is submitted that the Appellant is overlooking an important fact that Some people do sign their signature in their names. Counsel referred the Court to the case of EKPENETU VS. OFEGOBI (2013) ALL FWLR (Pt. 680). 
47. It is further submitted that since the Respondents’ witnesses Written Statements on Oath have complied substantially with the requirement of the Oaths Act, Same should be declared as being competent. He urged the Court to so hold. Counsel referred the court to pages 9-13, 62-66 and 67-71 of the record of appeal and the cases of: 
48. EGOLUM VS. OBASANJO (1999) 7 NWLR (PT. 611) PG. 335
49. OGUEGBU VS. AGOMUO (1999) 1 NWLR (PT. 609) PG. 144.
50. ALL PROGRESSIVE CONGRESS (APC) VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) ALL FWLR (Pt. 771) Pg. 1420 at Pg. 1464-1465.
51. It is submitted that the case of GUNDIRI VS. NYAKO (2014) 2 NWLR (Pt. 1391) Pg. 211 heavily relied upon by the Appellant in his Brief of Argument is not applicable to this Appeal since the facts of the said case is not on all fours with this Appeal. He urged the Court to so hold and referred the Court to the cases of;
52. OFFOBOCHE VS. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) Pg. 1051.
53. OKULATE VS. AWOSANYA (2000) FWLR (Pt. 25) Pg. 1666.
54. COOPERATE AND COMMERCE BANK LTD. VS. ONWUCHDKWA (2000) 3 NWLR (Pt. 647) Pg. 65.
55. OBASI VS. MIKSON ESTABLISHMENT INDUSTRIES LTD, (2016) ALL FWLR (PT. 859) Pg. 811 at Pg. 840.
56. WASSAH VS. KARA (2015) ALL FWLR (Pt. 769) Pg. 1034 at Pg. 1052.
57. RESOLUTION 
58. The Appellant’s counsel contended that the Claimants’ witnesses Statements on Oath as relied on by the trial judge in giving Judgment to the claimants were defective and legally inadmissible. Consequently, the claim of the Claimants/Respondents was therefore not supported by any evidence. More so, the translated English version of the witness statement on oath adopted by the two Claimants’ witnesses did not contain illiterate Jurat in compliance with the Law, which also renders the statements Inadmissible.
59. As rightly contended by the Appellant’s counsel the law requires that the witnesses’ deposition made in English language must be tendered in evidence along with the version in the Yoruba language. In GUNDIRI’S CASE (SUPRA) the apex Court did not take kindly to the fact that the depositions adopted were not those made in Hausa with the deposition adopted being English, the Court had posed the question “Whether those depositions adopted were the same as those made by the witnesses?”. The Court had remarked that from indications, the witnesses had adopted depositions which were not in fact made by them since English was foreign to their understanding and that the Appellants owed a duty to the Court to have presented the very depositions made by the witnesses. 
60. Now, can it be said that no evidence in support of the Respondents/Claimants’ case before the trial Court? I do not think so. While I agree with the Appellant’s counsel that a different deposition was defective. I do not agree that, there was no evidence in support of the Respondents’ pleadings in the instance case, which in the circumstance will result in its being abandoned. 
61. It is settled law that deposition on oath of a witness in support of his pleadings constitutes his evidence in the proceedings. Likewise, evidence elicited from a party or his witness under cross examination, which goes to support the case of the party cross-examining, constitute evidence in support of the case of that party. If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case. In such a case, you cannot say that the party calls no evidence in support of his case, as the evidence elicited from his opponent under cross examination which are in support of his case constitute his evidence in the case. See AKOMOLAFE VS. GUARDIAN PRESS LTD 2010 3 NWLR PT. 1181 338 AT 351. 
62. The claimants claimed in their pleadings among others that they are the representatives of the entire children of OSAGADE who was the first child of Jeje. That OSAGADE begat Onifade, Makajuola, Bello & Akande. Bello begat RAHEEM (1st Claimant). They claimed they are from Jeje family. 
63. The claimants elicited from the defendant’s witnesses DW1 & DW2 under cross examination as follow;
64. DW1 testified that Jeje family has three houses, two apart from the one in dispute are being habited by his children till date. DW1 also confirmed that Exhibit “H” has been quashed by High Court on 30th May, 2013 and it was after exhibit H was this suit initiated.
65. DW2 also testified under cross examination that the claimants and the defendant are from the same Jeje family. He also testified that he knew that the property belongs to jeje family, but he would not know if it belongs to either the claimants or the defendant. DW2 also testified that CW1 was living in the property in dispute.
66. I have earlier said that evidence elicited from a party or his witness under cross examination, which goes to support of the case of the party cross-examining, constitute evidence in support the case of that party. Therefore, in this case all the evidence elicited by the Respondents/Claimants under cross examination from the Defendant/Appellant’s witnesses on facts pleaded by the Respondents, which are relevant to the determination of the issue in controversy between the parties, constitute the Respondents’ evidence in the case.
67. Furthermore, as rightly contended by the Respondents’ counsel the facts of the case in GUNDIRI VS. NYAKO (SUPRA) heavily relied upon by the Appellant in its Brief of Argument is not on all fours with this Appeal. In the instant case it is not in dispute that the Appellant intentionally decided not to challenge the said witnesses’ written statements filed at the trial Court. The Appellant cross-examined the said witnesses on the alleged incompetent written Statements on Oath. See pages 95-97-100, 103-105, and pg. 154 of the Record. In other words, the Appellant partook in the trial before the Lower Court without objecting to the adoption of the said Witnesses Written Statement on Oath.
68. It is settled law that if a person with full knowledge of the rights, interest, profit or benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has suffered by his not having exercised his rights. See ARIORI VS. ELEMO (1983) 14 NSO PG 8. In the circumstances, just like ARIORI’S case, it is my view that the Appellant waived its rights to complain about the defective witnesses’ statements and consequently estopped from raising the issue on appeal.
69. Furthermore, a careful perusal of the CW1 & CW2’s written statements on oaths shows that the interpreter who interpreted the English version of the Witnesses statements on oath to the deponent in Yoruba language puts his name. As rightly said by the learned counsel for the Respondents, the Appellant counsel is overlooking the fact that some people do sign their signature in their name. 
70. This Court should not allow technicalities raised by the Appellant in his Brief of Argument to defeat the cause of Substantial justice in the hearing and determination of this Appeal. See the cases of:
71. AKPAN VS. BOB (2010) ALL FWLR (Pt. 501) Pg. 896.
72. AJUWA VS. S.P.D.C (NIG) LTD (2010) ALL FWLR (Pt. 536) Pg.437.
73. In view of all the above, the contention of the Appellant that there was no legally admissible evidence in support of the Respondents/Claimant's case before the trial Court in my view is grossly misconceived.
74.  This issue is resolved against the Appellant.
75. ISSUE TWO
76. Whether the learned trial Judge was wrong when he granted the Claimants' Claim based on supposed evidence of partition by the Claimant, when the Claimant's evidence were contradictory and no legally admissible evidence of partitioning was led by the Claimant. (Covers Grounds 3, 6 & 7).
77. On issue two, learned counsel for the Appellant said that, it was agreed by both parties by pleadings and evidence adduced, that the subject matter of this suit is originally a family Land of Jeje family (the Appellant’s progenitor). The Respondents contended that the family property had been partitioned and same was partitioned to Osagade, their ancestor. The Appellant however contended that the Respondents are not members of Jeje family and that Jeje property was never partitioned. He referred the Court to Paragraphs 13 and 14 of the Statement of Claim at Page 10 and Paragraphs 14, 15, 16, 17 and 18 of the Claimants/Respondents’ Reply at Page 57-58 of the Record of appeal.
78. It is submitted that, in the instant case the Claimants/Respondents failed to offer any evidence to support the claim of partitioning of the family property in their favour. Respectfully the Claimants/Respondents also failed to make mention of, or describe the boundaries of the portion of the property allegedly partitioned to their branch or to the Adedibu branch. The failure of the Respondents need to give evidence of what was partitioned to each of their purported branch is fatal to their case. It is tantamount to failure to give evidence of and plead partitioning and the trial Court ought to dismiss their claim. See ADEBAYO VS. SHOGO 2005 ALL FWLR PT. 253 PG 739.
79. It is submitted that the property in question being family land has not been shown to have been partitioned. Also, no partition detail was given in both pleadings and evidence, nor was there any plan exhibited to that effect. The Respondents’ Claim should have been dismissed for failure to prove the partition which they alleged. He referred the Court to the case ONAH VS. OKENWA (2011) AFWLR PT. 565 PAGE 357@375.
80. Learned counsel submitted that based on the pleadings of the Respondents who failed to Plead partitioning in line with the requirements of the law and their Failure to give credible and cogent evidence of partitioning which Supports their claim, the trial Court ought to have dismissed the Claimants/Respondents’ claim as was done in ADEBAYO VS. SHOGO (Supra).
81. He urged the Court to allow the appeal and dismiss the Respondents’ claim.
82. Assuming but without conceding that the Respondents pleaded Partitioning, the said pleadings and the averments therein are Contradictory as to the claim that Jeje’s property was partitioned. 
83. Counsel maintained that further, that as there is internal conflict in the traditional History and the evidence led by the Respondents and there is conflict in the history pleaded, the traditional evidence should collapse as parties are bound by their pleadings and evidence which is at variance with the averments in pleadings goes to no issue and should be disregarded by the Court.
84. It is submitted that parties are at liberty to plead issues of law in the alternative but parties are not at liberty to plead contradictory facts (averment) in respect of a particular issue or matter. Therefore, based on this contradictory averment, the trial Court ought ordinarily to have dismissed the Respondents Claim.
85. Learned counsel submitted further, assuming but without conceding that the Pleadings contain partitioning and Respondents led evidence on partitioning; the Respondents gave contradictory evidence on a material point as to the founder of the land, and who built the property in dispute. While CW1 said Onifade, the son of Osagade built the property, CW2 Stated that the property was built by Osagade. The evidence is mutually contradictory and the Court is not at liberty to accept one evidence and reject the other but rather treat the evidence as 
86. Unreliable. He referred the Court to Page 96, Lines 25-26 of the record and Page 103, Lines 15-17 of the record of appeal.
87. He therefore urged the Court to reject the evidence and dismiss the claim of the Claimants/Respondents.
88. Counsel insisted that the evidence of the Claimants/Respondents is at Variance with their pleadings on partitioning. The position of the law is however clear, that when the evidence of a party is at variance with his pleading on a material and relevant point, such claim will fail and stand dismissed. This according to the counsel was the position of the Court in ADELEKE VS. ASANI (2002) FWLR (PART 106) PAGE 982.
89. Finally, on this issue, counsel adopted his argument under issue 1 to the effect that there was no evidence in support of the pleadings and claim of the Respondents. He urged the Court to dismiss the Claimants/Respondents’ claim.
90. In response learned counsel for the Respondents submitted that the Respondents maintained by their pleadings at page 6 of the record especially paragraphs 12, 13, 14, 20, 25, 30, 31 and 32 of the Statement of Claim and pages 57 to 59 of the record especially paragraphs 14, 15, 16, 17, 19, 20, 21 and 30 of the Reply to the Defendant’s Statement of defence and defence to Counter-Claim that the property in dispute has been partitioned.
91. It is submitted that the Respondents relied on partition and there were Cogent and compelling evidence before the Lower Court to prove the Partition which is indeed material to this case.
92. Counsel said the Respondents’ claim that the land had been partitioned was proved and established through credible evidence especially Exhibit “C” and Exhibits DI-D3 which the Appellant did not raise any objection to when same was being tendered and admitted in evidence before the Lower Court. He referred the Court to the evidence of CW2 (the 1st Respondents) as adopted in his Statement on Oath paragraphs 13, 14, 15, 21, 26, 31 and 32 is at pages 10 & 12 of the Record and the evidence of CW2 (the 1st Respondents) as adopted in his Additional Written Statement on Oath paragraphs 15, 16, 17, 20 and 21 at pages 63-64 of the record.
93. Learned counsel contended that the evidence and testimony of CWI and CW2 were not shaken under Cross-examination. He referred the Court to pages 95, lines 24-26 and 96 lines 1-5 of the record.
94. It is further submitted that under Yoruba Customary Law, partition can be effected orally. Counsel referred the Court to the case of ADELEKE VS. ASERIFA (1990) 5 sc. (Pt.1) Pg. 104.
95. Furthermore, it is the principle of law that proper approach and duty of the Court is to consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence of traditional history as the law ascribes possession to the one of them with the better title based on balance of probabilities. Counsel also referred the Court to the case of EYO vs. ONUOHA (2011) 2-3 SC (Pt.1) Pg. 220.
96. It is contended that from the traditional history of the Respondents backed with evidence of being the persons collecting rent in respect of the Property in dispute for more than 23 years, is enough to establish the Claim that the property in dispute has been partitioned to the Osagade Section of Pa Jejelola’s family.
97. Learned counsel maintained further that from the foregoing, the Respondents have established their title to the property in dispute through their pleadings and cogent credible evidence of their partition claims and he urged the Court to so hold.
98. Contrary to the assertions of the Appellant in paragraphs 5.08, 5.14 of the Appellant’s Brief of Argument that there are contradictions in the pleadings and evidence of the Respondents and also that the Respondents’ evidence is at variance with their pleadings on Partitioning, It is submitted that such submissions are erroneous.
99. It is argued that a holistic look at the pleadings and evidence of the Respondents reveals that the root of title of the Respondents is Pa-Jejelola who had two sons: Osagade and Adedibu. The property in Dispute belongs to Osagade Section of the family and Onifade is a son Of Osagade. These are the meat and nucleus of the Respondents’ root of title and it is not susceptible to doubts.
100. It is submitted that where traditional evidence is so accurate to the minutest detail in the sense of mathematical accuracy, the trial judge is entitled to suspect the veracity or authenticity of the evidence. The Court is referred to the cases of;
101. ALAWU VS. YUSUF (2007) 5 SCNJ PG. 357.
102. KAYILI VS. YILBUK (2015) ALL FWLR (PT. 775) PG. 347 AT PG. 390, PARAS. 
103. It is further submitted that any alleged contradictions in the evidence of the Respondents in respect of their partition claim are minor which the Court can overlook and which the Lower Court rightly did. Counsel referred the Court to the following cases:
104. TAIWO VS. OGUNDELE (2012) ALL FWLR (Pt. 639) Pg. 1033
105. WACHUKWU VS. OwUNWANNE (2011) ALL FWLR (Pt 589) Pg. 362.
106. FEDERAL ROAD SAFETY CORPS VS. GIDEON (2015) ALL FWLR (Pt. 803) Pg. 1778 at Pg. 1805.
107. RESOLUTION
108. It is the law that once family land has been properly partitioned to members of the family, the same confers a permanent personal right on the beneficiary. In this case, the claimants/Respondents have asserted that Jeje’s properties were partitioned/shared. It is settled law that he who assert must proof. See OKOYE VS. NWANKWO 2014 LPELR-23172 SC. I need to further point out that the claimants can only succeed on the strength of their case. 
109. In this case the claimants/Respondents maintained by their pleadings at especially paragraphs 12, 13, 14, 20, 25, 30, 31 and 32 of the Statement of Claim and paragraphs 14, 15, 16, 17, 19, 20, 21 and 30 of the Reply to the Defendant’s Statement of defence and defence to Counter-Claim that the property in dispute has been partitioned. Also it is my view that the Respondents’ claim that the land had been partitioned was proved and established through credible evidence. CW2 clearly stated under cross examination that the property in dispute is on the land settled on by Jeje and same has been partitioned. The evidence and testimony of CWI and CW2 were not shaken under Cross-examination.
110. In addition to the above, the trial judge in his judgment also held thus;
111. “In the instant case, it is specifically stated that shops are not in dispute but a house which the plaintiffs claim has been ceded to their section of the family by virtue of sharing or division. They tendered exhibits D1 to D3 to prove they have been collecting rents on the said property. Defendant deny that there are other properties not yet partitioned, but stated that there are two other houses belonging to jeje which are under control and occupation by his children. The claimants did not disputed the fact and are not contesting control and occupation of the two stated properties belonging to jeje, which tends to support the allegation that certain properties belonging to jeje have been partitioned among the two main branches of jeje family to wit: osagade and Adedibu. 
112. Furthermore, if the properties that are still being jointly owned are mentioned and agreed by both parties; by the principle of “expression unus exclusion alteris” meaning the expression of one excludes all others, it then could be safe to presume that the property in dispute has indeed been partitioned and ceded to the claimants’ side.
113. The defendant also agreed that the claimants have been collecting rents exclusively on the property in question. But that they were remitting same to the members of the Jeje family. Having resolved the issue of membership in favour of the claimants, the issue can no longer rear its ugly head here to negatively affect the title to declaration. There is no record or any shade of evidence that the property in dispute was being jointly managed by the Osagade and Adedibu sections of the family.” (Underline mine for emphasis)
114. From the printed record of appeal, there is no evidence before the trial Court by the Appellant to support his claim alleging non partitioning. The Appellant’s/defendant’s written deposition does not amount to sufficient evidence or in deed any evidence before the Court to prove that there was no partition. All the Appellant did were to refer to the pleadings. That means that the written deposition is standing on the pleadings as it is. The law is trite; the pleadings alone does not amount to evidence. See ABUE VS. EGBELO & ORS 2017 LPELR 43483 CA. 
115. As rightly contended by the Appellant’s counsel, in law, there is always a presumption against partitioning of family property and the party claiming partitioning of family property has the burden of proving that such partitioning took place. In the instant case, it is my view that there is evidence on record to support the alleged partitioning pleaded by the claimants.
116. Therefore, the Appellant’s counsel contention that the Claimants/Respondents evidence in support of the claim of partitioning was contradictory, in my view is misconceived. 
117. This issue is resolved against the Appellant.
118. ISSUE NOs. 3, 5 & 6 (Considered together)
119. Whether the learned trial judge was wrong in his finding that the Claimant/Respondents are members of Jeje family considering the totality of the content of Exhibit "G" on the descendants of Jeje. (Covers Grounds 4 & 5 of the Notice of Appeal).
120. Whether the learned trial judge was wrong in applying Section 167 (d) of the Evidence Act 2011 to the case of the Appellant to find that the Respondents are members of Jeje family. (Covers Ground 11 of the Notice of Appeal)
121. Whether having regard to the evidence led by the counter claimant, the trial judge ought to have granted the counter-claim of the counter-claimant. (Covers Grounds 8 & 10 of the Notice of Appeal).
122. On issue three (3) learned counsel for the Appellant submitted that the learned trial judge at the trial Court in coming to the Conclusion that the Respondents are members of Jeje family, relied On Exhibit G. Counsel referred the Court to Page 169, Lines 13 -15 Of the Record.
123. According to the counsel Exhibit G which is the Declaration of 1957 by Jeje family was tendered by the Appellant at trial. The Respondents raised no objection(s) to the tendering of the document. Rather, they indicated they were going to make use of the said Exhibit G.
124. The learned trial judge however relied only on a part of Exhibit G which was quoted at Page 169 lines 18-21. According to the learned counsel the quoted passage of Exhibit G led to the findings that the Claimants were members of Jeje family when the totality of Exhibit G shows that the Claimants are not descendants of Jeje.
125. Counsel said that, the declaration (Exhibit G) emphatically stated that the progenitors of the Respondents are not members of Jeje family. He referred the Court to and reproduced Paragraph 3 lines 1-3 of the said Exhibit “G’” at Page 46.
126. Counsel argued that by the above paragraph 3 of the said Exhibit G, the Respondents were specifically said not to have descended from Jeje family but rather, descended from Orisagade. Therefore, on this alone, the trial Court ought to have held that the Claimants/Respondents were not descendants of Jeje and are therefore not entitled to inherit from Jeje’s property. He urged the Court to so hold and dismiss the claim of the Claimants.
127. Learned counsel contended further that a community reading of Exhibit G shows the following;
128. a.The document is a declaration by Jeje family renouncing Adedokun Onifade as a representative of Jeje family.
129. b.Jeje (the Appellant’s progenitor) is the undisputable original owner of land on which Jeje compound was found.
130. c.Jeje, Windotun and Orisagade are relations and that Windotun and Orisagade came to live with Jeje in Jeje’s compound.
131. d.Adedokun Onifade and/or his brothers and sisters are direct descendants of Orisagade and not direct descendants of JEJE.
132. Counsel argued that it is the failure of the trial Judge to read Exhibit “G” communally that led to his finding that the Respondents are entitled to inherit from Jeje’s property despite the fact that the Respondents did not descend from Jeje.
133. Learned counsel submitted that the Respondents having relied on Exhibit “G” cannot be heard to give oral contradictory Evidence to the documentary evidence (Exhibit G) which is before the Court.
134. He urged the Court to also dismiss the Respondents’ Claim based on Exhibit G which was also adopted by them.
135.  In arguing issue 5, the Appellant respectfully seeks the leave of this Honourable Court to adopt and rely on matters of facts and law in the 1st, 2nd, and 3rd issues as canvassed and argued above.
136. It is submitted that, the trial judge applied the provisions of Section 167 (d) of the Evidence Act against the Defendant/Appellant, to find the Claimants as descendants of Jeje, despite the fact that there was evidence both documentary and oral as to the descendancy of the Claimants/Respondents.
137. Counsel said that it is trite that a party is at liberty to tender a document which will support his case; and hot duty bound to tender all documents listed.
138. Counsel said that the Appellant listed a number of documents and tendered some Exhibits in proof of his descendancy from Jeje family and that the Respondents are from Osagade and not Jeje family. He referred the Court to Exhibit G at Page 46 of the record.
139. He maintained that the document which led to the application of Section 167 (d) was the “Family record of Orisarayi and Egbere’s entry to Jeje Compound” and same was before the trial Court. The said document is Exhibit “F”. The Court is referred to page 34 of the Record of Appeal. 
140. According to the counsel the said family record dated 17/10/30 was pleaded and tendered by DW1 during Examination-in-chief and same was admitted in Evidence as Exhibit F. (The Court is referred to page 108 of the record). It is the same document which was tendered and admitted that the trial Court held was not tendered, thereafter applied Section 167(d) of the Evidence Act.
141. It is submitted further that the provision of Section 167 (d) of the Evidence Act was wrongly applied by the trial judge as the Appellant tendered the document pleaded by him. Apart from Exhibit F, there were other evidence tendered by the Appellant both oral and documentary in support of the Appellant’s assertion of their descendancy.
142. Counsel said that Exhibit which is the declaration of 1957 was also tendered by DW1 (the Defendant) as to the descendancy of the Claimant and same was not rebutted or denied by the Claimants (See: Page 108 lines 1-8 of the record). DW1 and DWII also gave evidence as to the descendancy of the Claimants and same were not rebutted. 
143. In view of all the above, counsel contended that the said provision of Section 167 (d) of the Evidence Act 2011 cannot therefore be applicable to the Appellant, as evidence was led in support of the Defendant/Appellant’s pleadings and such averment should not have been deemed abandoned by the trial Court. He urged the Court to allow this Appeal and set aside the decision of the trial Court.
144. On issue six learned Appellant’s counsel submitted that a counter-claim is a separate and independent cause of Action from the main claim and a Counter-Claimant has a duty to Proof its counter-claim for him to succeed. See M.I.A. LTD VS. U.T.C NIG. PLC (2013) ALL FWLR (PT. 694) PAGE 52 AT 60 A-B.
145. Learned counsel said that the Counter-Claimant/Appellant in proof of his claim adopted his written statement on oath on 11th of April, 2016, his evidence in Chief, cross-examination are as contained at pages 107-110 of the Record, while Appellant’s 2nd witness in person of Adewale Ogunjimi also testified on the same date. His evidence is also at Pages 111 to 112 of the record.
146. It is submitted that the evidence of the Counter-Claimant is in line with his Pleadings (Counter-Claim) as to his descendancy from Jeje and his entitlement by inheritance to the property in dispute. The said evidence was not discredited under cross-examination by the Claimants/Respondents. It is trite that evidence in chief, which is not discredited, ought to be relied upon by a Court. The Court is referred to the case of MADUABUM VS. NWOSU (2010) ALL FWLR (PART 547) 678 AT 710.
147. Furthermore, counsel submitted that in support of the counter-claim is the evidence of DW2, especially paragraphs 4, 8 and 9 of the Written Statement on Oath. He referred the Court to pages 39-40 of the record.
148. It is argued that the Respondents did not cross-examine the Appellant’s witness who testified as DW2, on the request they made to the Appellant and his Family through DW2. Therefore, the failure to cross-examine the witness is a tacit acceptance of that fact. The Court is referred to the cases of;
149. GAJI VS. PAYE (2003) 8 NWLR PART 823 PAGE 583 @ 605B-C; 
150. DAGGASH VS. BULAMA (2004) 14 NWLR PART 892 PAGE 144 @ 240.
151. Learned counsel argued that if the Respondents were the owners of the property why would they have had to be seeking the consent of the Appellant and also use an outsider (DW2) to appeal to the Appellant to allow a Developer develop the property in dispute. According to the counsel, the short answer is that the Respondents are aware that they are not the owners of the Property in dispute, as no owner will have to appeal to a non-owner to allow him the use of a building he is ordinarily entitled to. 
152. It is submitted that the Respondents appealed to the Appellant to allow them Develop the property in dispute as pleaded in paragraphs 35 and 36 of the Statement of Defence at page 31 of the record was not controverted in the Reply to the Defendants’ Statement of Defence and Defence to Counter-Claim at pages 56-60 of the record.
153. Learned counsel urged the Court to hold that the above piece of evidence supports the claim of the Appellant as to his ownership by Inheritance of the property in dispute.
154. It is submitted further that, the Appellant/Counter-Claimant as DW1 also proved ownership of the property in dispute through Traditional Evidence. The Appellant/Counter-Claimant stated the devolution of the property in dispute and how it came into his possession or Ownership. This traditional history of devolution is as pleaded particularly at paragraphs 22, 23, 24, 25, 26, 27, 28 and 29 of the Statement of Defence and Counter-Claim. (on Pages 26 -32 of the record).
155. According to the counsel the Statement on Oath of the DW1 at pages 33-36 is in line with Traditional evidence of devolution and same was adopted before the Trial Court at page 107-110. The said pieces of evidence were not controverted nor were they discredited under cross examination. The Trial Court ought to have relied upon the same in giving judgment to the Appellant, rather than dismissing the claim of the Appellant.
156. It is argued that the Appellant/Counter-Claimant relied on proof of his Title by traditional history evidence, and where parties rely on proof by Traditional history, such must prove the following:- (i) the founder of the land (ii) How the land was founded (iii) particulars of intervening owners through which the party claims. The Court is referred to the cases of;
157. IGE & OTHERS VS. ALHAJI FAGBOHUN AND ANOR 2002 FWLR PART 127 PG. 1140 AT 1152; 
158. LAWANI ALLI & ANOR VS. CHIEF ABASS ALESINLOYE & ORS (2000) 4SC PART 1) 111 AT 125.
159. Counsel said that at trial, the Appellant called two witnesses who gave Evidence that the Appellant is a bonafide member of Jeje family, being a direct descendant of Jeje through Abiona and therefore entitled to the property in dispute, to the exclusion of the Respondents who are Descendants of Orisagade. The Claimants/Respondents themselves acknowledged that the Appellant is a descendant of Jeje is not in dispute; as Jeje has no living Descendant paternally. Also, the Counter-Claimant/Appellant tendered Exhibits F, G, H and J1- J3 in support of the counter-claim. 
160. Counsel said that all these Documentary evidence were neither discredited nor challenged by the Respondents. It is the law that unchallenged evidence which is Credible stands and should be accepted and acted upon by the Court. He referred the Court to the cases of; 
161. OMOREGBE VS. LAWANI (1980) 3-4 SC 108 at 117.
162. IGHRERINIOVO VS. S.C.C. (NIGERIA) LIMITED (2013) 10 NWLR (PT. 1361) 138 AT 152.
163. Therefore, evidence which has not been discredited as in this instant should have been used by the trial Court to give judgment to the Appellant.
164. It is submitted that Exhibit “G” which is to the effect that the progenitor of the Respondents are not members of Jeje family was tendered by DW1, the Appellant’s 1st witness and same was neither rebutted nor denied by the Respondents. The Court is referred to Page 46 of the record, Paragraph 3, Lines 1-3. The declaration of 1957 substantially supports the oral testimony of the Appellant and it is trite, that Documentary evidence being permanent in form is more reliable than Oral evidence, and it is used as a hanger to test the credibility of oral Evidence. In essence, documentary evidence is used as an instrument by which the oral testimony may be evaluated. The Court is also referred to the cases of;
165. C.D.C (NIG.) LTD VS. SCOA (NIG) LTD (2007) 6 NWLR (PT. 1030) 300 SC; 
166. OGBEIDE VS. OSIFO (2007) ALL FWLR (PT. 365) 548CA; 
167. UBA PLC VS. JARGABA (2002) 2 NWLR (PT. 750) 200@ 218 PARA F-G;
168. ODUNLAMI VS. NIGERIAN NAVY (2013) 12NWLR (PT.1367) 20 @54. 
169. It is submitted that uncontradicted evidence of traditional history that is not in conflict and found to be cogent can support a claim for declaration of title. The Respondents did not dispute the Appellant’s traditional History either through their pleadings, or evidence led. The Respondents instead claimed to be a part of the Appellant’s history as the other branch of Jeje family. Therefore, the trial Court ought to have given judgment to the Appellant based on credible, unchallenged and uncontroverted evidence led by the Appellant.
170. Learned counsel further submitted that the Respondents did not give any evidence in rebuttal of the Counter-claim, as there is no legally admissible evidence offered by the Claimants/Respondents counsel adopts his submission under Issue 1. He referred the Court to the case of A-G FERRERO & CO LTD VS. H.C. NIG. LTD (2011) 13 NWLR PT. 1265 PAGE 592@608-609A-C. The Court was urged to hold that the Respondents therefore failed to defend the counter-claim.
171. It is submitted that in all matters, a trial Court or an appellate where carrying out a review or re-evaluation of evidence in appropriate cases has a duty to place the evidence of the parties on an imaginary scale and see which side, the Scale of justice tilts. Considering the fact that the Claimants/Respondents failed to offer any evidence, there was nothing on other side of the scale of justice to tilt the case in favour of the Respondents rather it tilts to the side of the Appellant. 
172. Therefore, considering the failure of the trial Court to carry out a careful Appraisal of the case of the Appellant and the evidence which was before it, this Court can consider same and grant the Claim of the Appellant. The Court is referred to the case of CHIEF NIYI AKINTOLA VS. BURAIMOH LASIYAN BALOGUN (2000) 1 NWLR (Pt. 642) Page 532 at 549.
173. It is contended that the Appellant pleaded sufficient facts and also gave evidence in Support of his counter-claim, and same ought to be granted.
174. He urged the Court to also resolve this issue in the Appellant’s favour by dismissing the claim of the Respondents and granting the Appellant’s Counter-Claim.
175. Learned counsel for the Respondents on his part submitted that that there are five different ways of establishing title to land one of which is by traditional evidence/history. He referred the Court to the cases of:
176. ESHO VS. ASUQUO (2007) All FWLR (Pt. 359) Pg. 1355
177. TIJANI VS. AKINPELU (2013) ALL FWLR (Pt. 882) Pg. 1763
178. OTUKPO VS. JOHN (2013) All FWLR (Pt. 661) Pg. 1509
179. Counsel said that the Respondents being the Claimants in the Lower Court in their pleadings at pages 3-7 Of the record narrated the historical account of the Respondents’ family title in respect of the property in dispute being owned by Pa Jejelola of Jeje compound, Agbokojo Area, Ibadan, the ancestor of the Respondents.
180. He maintained that the Respondents also stated by their pleadings at Pages 3-4 of the record especially paragraphs 3, 4, 5, 6, 11, 12, 13, 14 of their Statement of Claim that their ancestor Pa Jejelola owned the land in dispute which is part of many land owned by him but after his demise, the land of Pa Jejelola was divided into two between his children namely Osagade and Adedibu. The successors of the two different sections of the family have been inheriting the shared properties in like manner since then till now.
181. It is submitted furthermore, that the Respondents by their pleadings at Pages 4-6 of the record especially, paragraphs 5, 6, 12, 13, 14, 19, 21, 24, 25, 26, 27, 30, 31 and 32 of the Statement of Claim maintained that the property in dispute belong to Osagade section of Pa-Jejelola family which the Appellant is not a member of since the Appellant belongs to the Adedibu’s section through his Mother and so cannot inherit or be a beneficiary of the property in dispute before this Honourable Court.
182. Learned counsel contended that the Appellant on the other hand vehemently denied the root of title of the Respondents by his pleading at pages 26-32 of the record. He narrated the Historical account of his family title in respect of the land in dispute being owned by his maternal great grandfather Olarebu who was nicknamed Jeje Ni Iwo Ojeri” which was later shorten to become Jeje”
183. The Appellant also by his pleadings at pages 1, 3, 4, 5, 8, 9, 10, 11, 14, 16, 17, 18, 19, 20, 21, 25, 26, 30, 31, 32, 39 and 40 of the Statement of Defence narrated the historical account about how Babalola is also the same person called Adedibu and he was the sole heir of Pa jeje whilst Osagade was the son born to Orisarayi and Egbere who were slaves of Pa Jeje.
184. Counsel said that therefore, since Osagade descendant are slaves of Jeje family till date they cannot inherit any of Jeje family property and the Respondents being from the lineage of Osagade cannot claim ownership of the property in dispute. Furthermore, the Appellant by his pleadings at pages 26-32 of the record especially paragraphs 39, 40, 41 and 42 of Statement of Defence maintained that the land in dispute belongs exclusively to descendants of Jeje and the said descendants have been exercising acts of Ownership over the said property including the property in dispute.
185. Counsel argued that the Respondents in their pleadings at Pages 4, 6 and 58 of the record especially paragraphs 11 and 33(a) of their Statement of Claim and Paragraph 22 of the Reply to the Defendants’ Statement of Defence and Defence to Counter Claims stated that the property in dispute is situate, lying and being at SW6/336, JEJE COMPOUND, AGBOKOJO AREA, IBADAN. Furthermore, the Appellant in his pleadings at Page 31 of the Record especially paragraphs 3, 37(a), 37(b) and 41 of thee Statement of Defence also admitted that property in dispute is on the same location and that parties know the boundaries thereof.
186. It is therefore submitted that in a land dispute, when parties to the case are ad idem on the identity of the land the issue of burden to prove same being uncertain does not arise or exist. He referred the Court to the cases of;
187. DUMEZ (NIG.) PLC VS. ADEMOYE (2015) ALL FWLR (Pt. 791) Pg.1450; 
188. AKINTERINWA VS. OLADUNJOYE (2000) FWLR (Pt. 10) Pg. 1690;
189. FATUNDE VS. ONWOAMANAM (1990) 2 NWLR (Pt. 132) Pg.322;
190. KANO VS. MAKAJI (2013) ALL FWLR (Pt. 673) Pg. 1850 AT Pg.1893.
191. It is submitted from the foregoing that both the Appellant and the Respondents relied on traditional history to establish their different titles to the property in dispute in this case. 
192. Learned counsel further submitted that a Counter-Claim is a separate and independent suit before the Court which the Counter Claimant has the burden to prove to establish same with cogent and credible evidence.
193. It is also a principle of law that even where the main Suit fail does not mean the Counter-Claim automatically succeeds. The Counter-Claimant must also prove his case based on balance of probability or preponderance of evidence before same can succeed or fail. See the cases of;
194. AFOLAYAN VS. ARIYO (2015) ALL FWLR (Pt. 769) Pg 1066 at Pg. 1091.
195. GOWON VS. IKE-OKONGWU (2003) FWLR (PT. 147) PG. 1027
196. USMAN VS. GARKE (2003) FWLR (PT. 177) PG. 815.
197. Counsel maintained that the Appellant in his bid to prove his Counter-Claim on cogent and compelling evidence tendered Exhibits “F” and "G" which were family records and also Exhibits “J1 to J3" which were receipts issued to his tenants on the property in dispute alter he obtained a Customary Court judgment which was later quashed by the Oyo State High Court of Justice, Ibadan.
198. It is submitted that the family record tendered and marked as Exhibit "F" which the Appellant alleged was a family record of entry in Jeje family in 1897 is a document that is not legible or written in language recognized by the Court. The said document was written in Yoruba Language and the translation of same was not admitted as evidence before the Lower Court hence its uselessness in establishing the Counter-Claim of the Appellant.
199. It is submitted further that the Exhibit "G" that confirmed was also tendered by the Appellant only buttressed and confirmed the Respondents traditional history that the Respondents’ ancestor ADEDOKUN ONIFADE is also a member of Jeje family and not slaves as asserted by the Appellant.
200. Counsel argued that the said Exhibit “G” established the fact that Jeje family has more than one section contrary to the traditional evidence/history of the Appellant.
201. Also it is pertinent to know that the Appellant’s evidence and traditional history insisted that the Respondents lineage is traced to slaves whilst on the same breath Exhibit G “upgraded” the status of the Respondents to being Members of Jeje family. He referred the Court to pages 44-47 of the record.
202. It is submitted that it is indeed the pleadings and evidence of the Appellant that is full of major contradictions that cannot be overlooked by the Lower Court. He referred the Court to the Appellant testimony during Cross-examination at Page 109, lines 6-10 and page 110, lines 10-12 of the Record.
203. It is submitted that the question that readily comes to a reasonable man’s mind is that is the Appellant being fair at all?. The Appellant is the head of Kolokolo family, (his father’s family) does he also want to become the head of Family of his mother’s family?
204. It is further submitted that based on the Appellant’s analysis, Jeje family has Three houses and his own children are living in two of the houses and now the Appellant is also laying claim to the third house, how far reaching can the Appellant get?. Counsel referred the Court to the Appellant’s evidence in Chief before the Lower Court, in his Statement on Oath at page 34 of the record.
205. It is submitted that throughout the trial before the Lower Court, the Appellant neglected and/or failed to produce and tender the said family record hence the rightly invocation of Section 167 (d) against him by the learned trial Judge.
206. Besides, it is pertinent to note that the Written Statement of the Appellant as DWI did not contain any illiterate jurat or accompanied by a Yoruba Translation even though the Appellant gave his evidence before the Lower Court in Yoruba Language. He referred the Court to Pages 33-36, pages 107-110 of the record and the cases of:
207. ALL PROGRESSIVES CONGRESS (APC) VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) ALL FWLR (PT. 771) PG. 1420.
208. FEDERAL REPUBLIC OF NIGERIA VS. SANI (2015) ALL FWLR (PT. 763) PG. 1832.
209. It is further contended that the second witness that testified for the Appellant, the DW2, Adewale OGUNJIMI was not a helpful witness to the Appellant. The DW2 Claimed to be a boundary man contrary to the evidence of the Appellant. The Said DW2 also lacked any useful information about the traditional history of the Appellant.
210. Counsel maintained that the Appellant did not call anybody from his Adedibu Section of the family to corroborate his traditional history or evidence. He referred the Court to pages 39-40 and pages 110-112 of the record and the case of ABAH VS. OWEI (2015) ALL FWLR (PT. 780) PG. 1343 AT PG. 1367.
211. Counsel contended that by applying the imaginary scale of justice, it is very obvious that based on the quality of the Respondents cogent and compelling evidence, the weight of justice tilted to their side and the learned trial Judge after proper evaluation of the evidence of parties rightly dismissed the Counter claim of the Appellant. He referred the Court to the cases of;
212. AFOLAYAN VS. ARIYO (SUPRA)
213. AYORINDE VS. SOGUNRO (2012) ALL FWLR (Pt. 636) Pg. 403
214. ANYANWU VS. UZOWUAKA (2009) ALL FWLR (Pt. 499) Pg. 4411
215. AKINNAWO VS. ADEWOYE (2015) ALL FWLR (Pt. 787) Pg. 627
216. Learned counsel therefore submitted that from the foregoing arguments, that since the Appellants failed to adduce credible evidence to justify his counter claim for declaration of title to the property in dispute in this case, the learned Trial Judge was right in dismissing his Counter-Claim and this Honourable Court is being urged to resolve this issue in favour of the Respondents. He referred the Court to the following cases:
217. JOBI TRADE INVESTMENT LIMITED VS. OLUBISI (2015) ALL FWLR (Pt. 793) Pg. 1871
218. OSHODI VS. BALOGUN (2017) ALL FWLR (Pt. 875) Pg. 2095
219. ADDEH VS. ONAKOMAIYA (2017) ALL FWLR (Pt. 907) Pg. 1690.
220. RESOLUTION
221. In resolving issue three it is pertinent for me to reproduce the relevant portions of Exhibit G tendered by the Appellant for ease of reference: EXHIBIT G reads thus;
222. “ DECLARATION
223. JEJE FAMILY
224. ……….We hereby declares further that Jeje family is composed of three branches viz; Jeje branch, Windorun branch and Orisagade branch. Jeje was the original individual owner of the land on which the compound situate…..
225.  We hereby also declared that Adedokun Onifade and/or his brother and sisters are direct surviving descendants of Orisagade and not direct descendants of Jeje. Therefore, it is false assumption and wrong for the descendants of only one branch of the three branches to claim to represent the entire members of the jeje family.
226. We hereby also declare the Adedokun Onifade though a member of Jeje family, is not competent or has the right, authority or mandate to represent jeje family….” (Underline mine for emphasis)
227. On whether claimants are members of Jeje family the trial Judge in his judgment found thus;
228. “CW2 also the first claimant traced the genealogy of the claimants from Jeje to Orisagade who was Jeje’s first child. He stated that Orisagade gave birth to Onifade, Mkanjuola, Bello and Akande. Onifade first child of Osagade gave birth to Eesu, Deyoola, Adedokun, Alimotu Onibiyo and Rafiu Ajadi. Alimotu Onibiyo gave birth to 2nd claimant while Bello begat 1st claimant. This piece of evidence was not discredited under cross examination nor was it controverted by contrary evidence. As a matter of fact, exhibit G tendered by the defendant clearly stated that and confirmed the position of the claimants as members of Jeje family when the Jeje family came together in 1957 and declared, inter alia as follows;
229. “We hereby also declared the Adedokun Onifade though a member of Jeje family is not competent or has any right, authority, mandate to represent Jeje family”.
230. A community reading of Exhibit G reveals that the issue was not whether the claimants’ progenitors were members of Jeje family or not but whether they were the authorized representatives of Jeje family”.
231. The trial judge went further at page 20 of his judgment to held thus;
232. “Exhibit G in this case is the best proof that the claimants are members of Jeje family of jeje compound Agbokojo, Ibadan. The defendant cannot be heard to give oral evidence to contradict same as he purported to do in paragraphs 7-23 of his evidence in chief…..”
233. Now can it be said that the trial Judge was wrong in his finding that the Respondents/claimants are members of Jeje family considering the totality of Exhibit G? I do not think so.
234. There is undisputed evidence on record that Orisagade gave birth to Onifade, Mkanjuola, Bello and Akande. Onifade first child of Osagade gave birth to Eesu, Deyoola, Adedokun, Alimotu Onibiyo and Rafiu Ajadi. Alimotu Onibiyo gave birth to 2nd claimant while Bello begat 1st claimant. Exhibit G tendered by the Appellant clearly stated that and confirmed the position of the Respondents/claimants as members of Jeje family when the Jeje family came together in 1957.
235. As rightly held by the trial Judge a community reading of Exhibit G reveals that the issue was not whether the claimants’ progenitors were members of Jeje family or not but whether they were the authorized representatives of Jeje family.
236. In view of all the above, I entirely agree with the trial Court that Exhibit G in this case is the best proof that the claimants are members of Jeje family.
237. On issue five let me start by saying that the learned trial judge in applying Section 167 (d) of the Evidence Act 2011 to the case of the Appellant found that the Respondents are members of Jeje family. 
238. The trial Judge in his judgment held thus;
239. “When evidence is not led in support of pleadings such averment is deemed abandoned and I so hold and invoke section 167 (d) of the Evidence Act, 2011 against the defendant that the said family record if produced would not have been in support of his case.” (Underline mine for emphasis)
240. The trial Court has invoked Section 167 (d) of the Evidence Act: By the said Section 167, the Court may presume the existence of any fact which it thinks likely to have happened, regard been had to common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:
241. (d) evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.
242. It must be pointed out that this Section deals with failure to call evidence and not failure to call a particular witness. See BELLO VS KASSIM (1969) NMLR 148, 152. Therefore, the rule in Section 167 (d) applies where a party fails to adduce evidence by withholding evidence which could have been but was not produced.
243. In SHODIYA VS. THE STATE (2013) 14 NWLR (PT. 1373) 147 where Alagoa JSC quoted the provisions of Section 167 (d) of the Evidence Act, that the Court may presume evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.
244. While it is the law that the a party is not bound to call a particular witness where his case can otherwise be proved, its failure to adduce evidence at its disposal which it is supposed to adduce amount to withholding of evidence and calls for invocation of Section 167 (d). See EMEKA VS. CHUBA IKPEAZU & ORS (2017) LPELR – 41920 (SC) where Ogunbiyi JSC, referring to BUHARI VS. OBASANJO per Belgore JSC as he then was held that failure to produce the letter in question meant either that the letter did not exist or if existed, and not produced, it could be presumed that if produced, its contents would not have supported the Appellant’s case.
245. The purport of the Rule in Section 167 (d) of the Evidence Act is to permit the Court to presume that a Party who withholds evidence which could be but was not produced, would if produced, be unfavourable to or against him. Such a Party withholds the evidence at his peril. A party in civil action in possession of material evidence in support of pleaded facts, and in criminal trials, the prosecution in possession of material evidence, who withholds that evidence which could be but was not produced, does so at his peril.
246. Failure to adduce vital evidence at a Party’s disposal which he is supposed to adduce amounts to withholding evidence and would raise a presumption that if produced, the evidence would be unfavourable to him.
247. The Appellant’s counsel submitted that the document which led to the application of Section 167 (d) was the “Family record of Orisarayi and Egbere’s entry to Jeje Compound”. See page 18 paragraph 8.05 of the Appellant’s brief of argument. 
248. The Appellant in his final written address dated 10/5/2016 and filed on the same date at page 118 paragraph 7.04 of the record of appeal stated thus;
249. “The defendant in proving the genealogy of the claimants relies on his oral testimony and two documents namely (1) Family record of Orisarayi entry into Jeje in 1897 and (2) Family declaration of 1957. The two documents are old documents which are beyond the defendant. they were admitted as exhibits in this case.” (Underline mine for emphasis)
250. The trial judge in his judgment at page 172 of the record found thus;
251. “Defendant averred in his statement of defence and counter claim that there was family record available to him to show that the claimants were bought as slaves and brought to Jeje’s house but he could not tender any such record in evidence. When evidence is not led in support of pleadings such averment is deemed abandoned and I so hold and invoke section 167 (d) of the Evidence Act, 2011 against the defendant that the said family record if produced would not have been in support of his case.” (Underline mine for emphasis)
252. In this case it is clear from the record of appeal that the Appellant in proving the genealogy of the claimants relies on his oral testimony and two documents among which is the “Family record of Orisarayi entry into Jeje in 1897”. The trial Court also found that the Defendant averred in his statement of defence and counter claim that there was “Family record available to him to show that the claimants were bought as slaves and brought to Jeje’s house”. None of these documents were produced before the trial Court. The only document that was produced before the Court and which according to the Appellant himself led to the application of Section 167 (d) was the “Family record of Orisarayi and Egbere’s entry to Jeje Compound.” See page 18 paragraph 8.05 of the Appellant’s brief of argument.
253. It is pertinent to note that, before the presumption under the Section 167 (d) can operate, it must be shown and established that:
254. (a) Such evidence exists;
255. (b) That it could be produced;
256. (c) That it has not been produced and;
257. (d) That it has been withheld by the person who could produce it,
258. As held in MUSA VS. YERIMA (1997) 7 NWLR (PT. 511) 27 per Ogundare JSC. In the case at hand, it is my view that all the listed conditions are present, the “Family record of Orisarayi and Egbere’s entry to Jeje Compound” which according to the Appellant led to the application of Section 167 (d) of the Evidence Act exists and was in the Appellant’s custody; it could be produced; but was not produced; the Appellant who could have produced it withheld it. Thus, the Appellant’s failure to produce the said “Family record of Orisarayi and Egbere’s entry to Jeje Compound” squarely amounts to withholding of evidence. 
259. On issue six the Appellant’s counsel contended that the Appellant proved its counter claim through traditional evidence and the evidence were uncontroverted and unchallenged at trial. He added that the Respondents failed to defend the counter-claim. Therefore, there was nothing on other side of the scale of justice to tilt the case in favour of the Respondents rather it tilts to the side of the Appellant. He maintained that considering the failure of the trial Court to carry out a careful Appraisal of the case of the Appellant and the evidence which was before it, this Court can consider same and grant the Claim of the Appellant.
260. On their part the Respondents’ counsel argued that the Respondents by their pleadings at Page 4-6 of the record especially, paragraphs 5, 6, 12, 13, 14, 19, 21, 24, 25, 26, 27, 30, 31 and 32 of the Statement of Claim maintained that the property in dispute belong to Osagade section of Pa-Jejelola family which the Appellant is not a member of since the Appellant belongs to the Adedibu’s Section through his Mother and so cannot inherit or be a beneficiary of the property in dispute.
261. As rightly said by the learned counsel for the Respondents a Counter-Claim is a separate and independent suit before the Court, which the Counter Claimant has the burden to prove to establish same with cogent and credible evidence. Even where the main Suit fails that does not mean the Counter-Claim automatically succeeds. The Counter-Claimant must also prove his case based on balance of probability or preponderance of evidence before same can succeed or fails. See the cases of;
262. AFOLAYAN VS. ARIYO (SUPRA);
263. GOWON VS. IKE-OKONGWU (SUPRA).
264. The Appellant Counter claimed Against the Plaintiffs/Respondents at the trial Court for the following reliefs:
265. i.A declaration that the grandchildren of Adedibu, Son of OLAREBU nicknamed Jejelejeri shortened to Jeje are persons exclusively entitled to a Statutory right of occupancy on and over a Building situate at and known as SW/6/336.
267. ii.An injunction restraining the claimants their Agents, privies and all descendants of Osagede from trespassing and entering the said building at S6/336 Agbokojo Ibadan and Jeje’s land at Agbokojo Ajimajasan family land, Ojo Amunigun family Land, Kolokolo family land and Amunigun to Agbeni Road.
268. See page 31 lines 16-26 of the record of appeal.
269. The Appellant/Counter claimant in this case relied on traditional history. The party who is relying on evidence of traditional history must plead his root of title. He must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim will fail also, where a person traces the root of his title to a person OR family he must establish how that person or family also came to have title vested in him OR it. See: ODI VS. IYALA (2004) 8 NWLR PT 875 PG 283; EWO VS. ANI (Supra).
270. I have earlier in this judgment held that the claimants/Respondents are members of Jeje family. In this appeal both the Appellant and the Respondents relied on traditional history and trace their title to Jeje family.
271. The Appellant/Counter claimant admitted in his pleadings that he is the son of ABIONA who was the daughter of ADEDIDU the child of Jeje. The Counter claimant also admitted that he is not a member of the claimant/Respondents’ family but his mother was born in the claimants’ family.
272. The Appellant in this appeal, who relied on traditional history in proof of his case, is expected to plead his root of title. He must show in his pleadings how he came to own and possess the land. See IBIKUNLE VS LAWANI (Supra); OKOKO VS DAKOLO (2006) 14 NWLR PT 1000 PG 401.
273. The Appellant in proof of his counter claim against the Respondents field two witnesses.
274. DW1 in paragraphs 21 & 22 of his evidence/witness statement mentioned family record and that in 1957 Adedokun who was Osagade’s grandchild claimed that he was a decendant of Jeje. The said “family record” and “1957 declaration” were admitted in evidence as exhibits F & G respectively by the trial Court.
275. He also testified under cross examination that he did not read exhibit G, it was read to him and he knows what is inside. He further said that he is not aware Onifade was mentioned therein as one of the members of Jeje family.
276. DW2 also under cross examination said that he believe the claimants and the defendants are from the same Jeje family. He also said the property in dispute belong to jeje family. 
277. Also, exhibit G tendered by the Appellant/defendant clearly stated that and confirmed the position of the claimants as members of Jeje family when the Jeje family came together in 1957.
278. In refusing to grant the Appellant/Defendant’s counter claim the trial judge in his judgment held thus;
279. “The defendant’s Exhibit H which gave impetus to seize the claimants’ property in dispute has been quashed; this much was admitted by the defendant under cross examination thereby knocking off the tilts from under the defendant’s hitherto thought sure foundation. The defendant no longer has a ground to hold on to the property in dispute in view of Exhibit H also tendered by him which he admitted has been quashed. It has already been shown by credible evidence that the claimants are also bonafide members of jeje family and are entitled as descendants of jeje and have proved exclusive ownership to the property in dispute. Though a counter claim is a separate suit on its own and must stand or fail on its own merit, a finding in favour of claimants’ issue (b) is loss of the defendant’s counter claim. The defendant cannot claim exclusive title to the same property which he admitted had been under the control and management of the claimants until he seized same in 2008 by virtue of exhibit H. I therefore resolve issue (c) against the defendant in favour of the claimants.”
280. Where the Appellant and Respondents in this appeal anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. IBIKUNLE VS. LAWANI (Supra); OKOKO VS DAKOLO (Supra). In this case the contention of the Appellant that there was nothing on other side of the scale of justice to tilt the case in favour of the Respondents rather it tilts to the side of the Appellant, in my view is grossly misconceived.
281. It is trite that a party seeking for declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleadings the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims. When a party has not given sufficient information in his pleadings as regards the origin OR ownership of the land and the line of succession to himself, he has just laid foundation for the failure of his claim. See HOJACINTH ANYANWU VS. ROBERT ACHILIKE MBARA (1992) 5 SCNJ PG. 90; IDUNDUN VS. OKUNMAGBA (1976) 9-10 SC PG. 224; ATANDA VS. AJANI (1989) 3 NWLR PT. III PG 511 Per Okoko JSC in ANYAFULU VS. MADUEGBARA MEKE (2014) LPELR 22336.
282. The Appellant/counter claimant in this case only alleged that the house in dispute is not his own. The house belongs to the father of his mother. It was not proved by credible evidence how the father of his mother or the grandchildren of Adedibu, Son of OLAREBU nicknamed Jejelejeri shortened to Jeje came about the house.
283. Clearly, it is settled that a Plaintiff wins with the strength of this case and not on the weakness of the Defendant’s case. A party is only entitled to judgment if the Court believes and accepts his evidence and if such evidence supports his case. See BELLO VS. ARUWA (1999) 8 NWLR PT 615 PG 454.
284. The Appellant in this appeal has not been able to prove his counter claim.
285. In view of all the above issues 3, 5 and 6 are resolve against the Appellant in favour of the Respondents.
286. ISSUE NO. 4
287. Whether considering the pleading and the evidence before the trial Court, the trial Judge was wrong in awarding the sum of N50, 000:00 as general damages against the Defendants/Appellant in favour of the Respondents. (Covers Grounds 9 and 12 of the Notice of Appeal).
288. In arguing this issue, the Appellant adopts and relies on matters of facts and law under the 1st, 2nd and 3rd issues as canvassed and argued above.
289. It is contended that from the matters of law and facts canvassed and argued above, there is clear evidence that the property in dispute belonged to Jeje (the Appellant’s progenitor), so stated the learned counsel.
290. Counsel submitted that in appreciating Issue No. 4, it is necessary to appraise the claim of the Respondents as contained at pages 6-7 of the record, which did not contain any claim for damages.
291. He maintained that, a Court is not a Father Christmas and would not grant what has not been asked for as a relief. The Respondents in their relief did not ask for general damages. However, the trial Court awarded general Damages. See Page 179 lines 6-8 of the record.
292. It is argued that the trial Court was therefore wrong to have awarded general damages of N50,000:00 which was never claimed and for which no evidence was led. He referred the Court to the cases of;
293. AKINRIMISI VS. MAERSK (NIG.) LTD (2013) 10 NWLR PT. 1361) PAGE 73 85 PARA E.
294. NJABA L.G.C VS. CHIGOZE (2010) 16NWLR (PT. 1218) PAGE 166 @194 PARA A-C.
295. Counsel therefore urged the Court to set aside the award of General damages.
296. Learned counsel contended that in all civil matters it is the duty of the Plaintiff to succeed on the strength of his own case and not on the weakness of the Defence. It therefore behooves a Plaintiff to proof his case by a strong prima facie case, which the Court will consider before the need to consider the case put up by the Defence will arise. He referred the Court to the cases of; 
297. MANI VS. SHAMOWO (2006) NWLR (PT. 969) PAGE 132; 
298. OLUKOYA VS. ASHIRU (2006) PT. 322 PAGE 1479@1497.
299. It is submitted that the Respondents in the instant case failed to offer or give Quality, legally admissible evidence in support of the claim of Trespass.
300. Counsel maintained that a Plaintiff is entitled to succeed in a Claim of Trespass against the whole world except the owner or person entitled to possession. He referred the Court to the case of UDE VS. CHIMBO (1998) 12 NWLR (PART 577) PAGE 169@182 PARAS A-C. 
301. Counsel said that in the instant case, the Appellant has relied on the evidence of CW1 and Cw2, and also Exhibits F, G, H, J1, J2, J3 to proof ownership of the Land in dispute and their right to possession. It follows from the evidence on record both oral and documentary that the Appellant cannot be said to have trespassed on his own land. The trial judge was therefore wrong in not dismissing the claim of the Respondents for damages.
302. Counsel Submitted that a Plaintiff must adduce relevant evidence at the trial in Proof of the facts as pleaded and where there is no evidence in proof of the facts as in this case then the pleadings are deemed abandoned and the trial Court should therefore have dismissed the Plaintiffs/Respondents’ Claim. The Court is referred to the case of A-G FERRERO & CO LTD VS. H.C. NIG. LTD (2011) 13 NWLR PT. 1265 PAGE 592@608-609.
303. According to the counsel there being no legally admissible evidence in support of the claim, the Trial Court ought to have dismissed the Respondents’ claim.
304. Learned counsel for the Respondents on his part submitted that Contrary to the submission of the Appellant that the Respondents did not claim for general damages, it is submitted that the Respondents claim for the rents already collected from the tenants by the Appellant was deemed to fall within the purview of special damages by the Lower Court and same was dismissed.
305. It is further submitted that the fact that the Claim for special damages failed does not preclude the Respondents from being entitled to general Damages. Moreover, it is trite that a Clamant in a trespass action is entitled to recover damages even though he did not sustain any loss. See the cases of;
306. OLOKUNLADE VS. ADEMILOYO (2013) ALL FWLR (PT. 658) PG. 947.
307. ECHERE VS. EZINKE (2006) 5 SCNJ PG. 170
308. OLUBODUN VS. LAWAL (2008) 6-7 SC (PT. 1) PG 1.
309. Counsel maintained that from the foregoing arguments that where the Respondents succeeded in adducing credible evidence to justify their Claims for declaration of title to the property in dispute in this case, The Learned Trial Judge was right in granting the Claims of the Respondents and this Honourable Court is being urged to resolve this issue in favour of the Respondents.
310. RESOLUTION
311. The trial judge in his judgment made an order against the Appellant/defendant to pay the claimants N50,000.00 (Fifty thousand Naira) as damages for trespass.
312. It is settled law that where a person exercising acts of ownership, possession and enjoyment of land does not have any right to the land, such possessory act remain acts of trespass; the said possessory acts would not rise to become acts of possession and enjoyment of the land on the basis of which it can be said that title to land has been established or entitling the person to the award of damages for trespass and/or injunction. See ALLI V. ALESINLOYE 2000 4 SC PT.1 111.
313. A successful plaintiff/claimant needs not plead or prove any loss or quantum of loss before general damages can be awarded in his favour. The main consideration in the award of this head of relief is whether the claimant has successfully established a particular wrong done to him as in this case. Once this is established, general damage will be awarded in his favour. See SEVEN-UP BOTTLING CO. PLC VS. NKANGA & ORS 2008 LPELR 8462. I have earlier in this judgment held that the Respondents have succeeded in adducing credible evidence to justify their Claims for declaration of title to the property in dispute in this case.
314. Therefore, the contention of the Appellant that the trial judge erred when he awarded general damage to the Respondents despite the fact that they failed to plead and prove special damage is highly misconceived, misplaced and does not represent the position of the law.
315. The decision of the trial Court granting the damages for trespass is the correct decision and there is no basis for this Court to interfere. 
316. This issue is also resolved against the Appellant.
317. Having resolved all the issues in this appeal against the Appellant, there is no merit in this appeal and it is hereby dismissed. The judgment of the trial Court is hereby affirm. There shall be no order as to costs.

COUNSEL

Kazeem A. Gbasamosi, Esq. for the Appellant.

Alh. Habeeb Usman Lanase, Esq. for the Respondents.