ALHAJI TAYI KUCHITA & ORS v. ALHAJI ABDULRAUF MOHAMMED
(2012)LCN/5468(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of June, 2012
CA/A/235/2009
RATIO
“It is a pleaded fact and a fact on which issues were joined to establish malicious and vexatious litigation, as well as abuse of court’s process. The law is trite that a suit which is an abuse of the court’s process is a vexatious suit. See MORGAN v. W.A. AUTOMOBILE (1971) NMLR 219 at 221.” Per EKO, J.C.A.
“Multiplicity of actions for trespass to Lawo Marshy land by the present Respondent against the appellants is clearly an abuse of the court’s process. The abuse of process lies not only in multiplicity of the actions but also in the manner the Respondent had exercised his right to harass and annoy his adversaries. See SARAKI v. KOTOYE (1992) 11 – 12 SCNJ 26.” Per EKO, J.C.A.
“The duty on the plaintiff in a claim for damages for trespass is to show he was in possession of the particular portion of the land. The law is settled that when a plaintiff claim damages for trespass he has a duty to satisfy the court that at the time of the alleged trespass he was in possession of the particular portion of the land in respect of which the trespass was committed. See Ogundipe v. Awe (1988) 1 SC 216; Objuru v. Ozim (1985) 2 NWLR (Pt. 6) 167.” Per NWODO, J.C.A.
“The Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91 at 93 had laid it down clearly that, in considering the preponderance of credible evidence the trial Judge has to examine the totality of the evidence in the case; and that he has to place on an imaginary scale the set of evidence given by a party against the evidence of the other party in order to arrive at his preference of the evidence of one party for the other. In the entire judgment of 25 pages, form page 112 to 126 of the Record, the learned trial Judge never once considered the import and impact of Exhibit ‘D’ on the case before him. This clearly is a failure of proper evaluation of the evidence before him.” Per EKO, J.C.A.
“An order for injunction to restrain trespass or further trespass must relate to a specific and ascertainable area of land.” Per EKO, J.C.A.
JUSTICE
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
Text
1. ALHAJI TAYI KUCHITA
2. ALHAJI MUSA KUCHITA
3. ALHAJI NDANA KUCHITA
4. ALHAJI NDAKO EKUGI
5. ALHAJI BABA YADI EKUGI
6. MOHAMMED FATI EKUGI
7. HARUNA EKUGI
8. NDAGI MOHAMMED DZATU EKUGI
9. YAMUSA ADAMA EKUGI
10. LADAN GIMBA EKUGI
11. LUKPAN GIMBA EKUGI
12. ALHAJI MAHMUDU JIBO
13. ALHAJI NDA JIBO
14. ALHAJI JIYA JIBO
15. ALHAJI YAHAYA JIBO
16. SANI ABACHA JIBO
17. IDRISU NDAKAGI JIBO
18. WOGA NMA JIBO
19. SULEIMAN BABA JIBO
20. NDAKO DOCTOR JIBO
21. ALHAJI ISA JIBO
22. MANZURU ISAH JIBO
23. ALHAJI BABA GADZA
24. NDAKO ZHIKO GADZA
25. NDAKUDU SAURAYI GADZA
26. ADAMA GADZA
27. ALHAJI SOKAYARA GADZA
28. ALHAJI MADUGU NDAKO LEGBO
29. ALHAJI NDAKO LEGBO
30. BABA KAKAWA NDAKOLEGBO
31. YAYA NNAGI NDAKOLEGBO
32. KASIMU NDA NDAKOLEGBO
33. ALHAJI NDA WOZHIKO JIBOAppellant(s)
AND
ALHAJI ABDULRAUF MOHAMMED (TALBAN NUPE) Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The Respondent herein was the Plaintiff at the High Court of Niger State sitting at Bida in the Suit no NSHC BD/11/2004 wherein he claimed against the present Appellant, as Defendants, the following reliefs, as per the Amended Statement of Claim at pages 56 – 59 of the Record:
1. The sum of seven million Naira (N7,000,000.00) being damages for trespass to the plaintiff’s marshy land known as LAWO lying and situate at SOMMAN village in Katcha Local Government Area of Niger State for a period of seven years from 2002 – 2008 at (N1,000,000.00) one million Naira per Annum.
2. The sum of one million Naira (N1,000,000.00) for each subsequent year or any part there off till the trespass is abated.
3. Interim injunction restraining the defendants, their agents and anybody claiming on their behalf from further trespassing into the land known as LAWO till the determination of this suit.
4. Perpetual injunction restraining the defendant, their relatives, privies, agent and assigns from further and ever trespassing into the land known as LAWO.
5. Substantial cost for this litigation.
The Appellants denied the trespass alleged. They averred in the Further Amended Statement of Defence (at pages 97 -101 of the Record) that they had been involved in several lawsuits over land in the same area and that the land which the Plaintiff/Respondent claims to be “LAWO MARSHY LAND” is distinct and different from their land. They further aver that the claim of trespass against them by the Appellant is purely malicious, vexatious and an abuse of court’s process as they “never trespassed or entered into farming on any land belonging to the plaintiff any where including his so called LAWO MARSHY land.” It is further the contention of the Appellants, as defendants, at the trial court that a similar malicious attempt at the Chief Magistrate’s Court, Agaie to prosecute them upon a Criminal Information for the trespass, ended in their discharge and acquittal. The proceedings of the Chief Magistrate Court, Agaie, tendered from the Bar with the consent of the Respondent’s counsel at page 111 of the Record, is Exhibit ‘D’. The Respondent, testifying as PW.1, was made to admit under cross-examination at page 75 of the Record, that for the same trespass he took the Appellants “to two courts Agaie & Bida”, and that he took them to the “Magistrate Court Agaie.” He however did not bother to know if that case at the Chief Magistrate Court Agaie had been concluded, and he would not “be surprised if they were discharged and acquitted.” Appellants pleaded the proceedings at the Chief Magistrate Court for a two fold purpose abuse of process or malicious prosecution, and issue estoppel.
It is apparent from the evidence of the Respondent’s witnesses, particularly PW.2, PW.3 and PW.6 that in 1982 the Upper Area court Bida, in the suit no UAC/BD/CVA/20/1980: DANDAMMA v. SHABAKO, upon appeal from lower Area Court, ordered that a certain disputed land be shared to the parties in that suit. That order, on a further appeal to the Niger State High Court in suit no NHSC/13A/1982, was affirmed in Exhibit A on 3rd February, 2004. The PW.6 at page 88 of the Record stated that the Area Court Judge, Aminu Muye, visited the land on the order of the High Court and shared “the land between the parties.” The land was divided on authority of Exhibit ‘A’. The portion of land belonging to the Respondent is LAWO MARSHY land. The Appellants’ portion is called BATA KUSO KUCHITA.
PW.9, a surveyor in the service of Niger State in the office of the Surveyor-General appears to be the same person the defence called as DW.4. PW.9 did the sketch plan, Exhibit ‘B’, for the Respondent. The same PW.9, as DW.4, did the sketch plan, Exhibit ‘C’, for the Appellants. He testified at pages 99 and 100 that the portions of land, in Exhibits ‘B’ and ‘C’, are not the same.
The learned trial Judge, no doubt, regarded PW.9 and DW.4, and Exhibits ‘B’ and ‘C’ produced by the witness, as credible. In his judgment, particularly at page 124 of the Record, the learned trial Judge found, upon considering the pieces of evidence of PW.9 and DW.4, and Exhibits ‘B’ and ‘C’ that he could – see that Lawo marsh land and Bata kuso Kuchita are two (sic) by the plaintiff and the defendants respectively and separately though as I have earlier stated, they might have a common boundary in River Gbako. I hold that the plaintiff (sic) have established the identity of Lawo marshy land to prove his case.
The Appellants, at the trial court, insisted that they did not trespass or enter into LAWO MARSHY land belonging to the Respondent and that they restricted themselves to their own land, BATA KUSO KUCHITA. They were alleged to have trespassed unto the LAWO MARSH land. The case they were summoned to defend is one of trespass to LAWO MARSHY land. They were not defending a rival claim to ownership of BATA KUSO KUCHITA land. In the judgment at page 121 of the Record the learned trial Judge had erroneously placed on the Appellants the burden of proving, by traditional history, how they came to own the BATA KUSO KUHITA land when he stated thus –
In contrast to the defendants who claimed that the said land is called BATA KUSO KUCHITA.
They denied going into UWO MARSHY land.
They did not plead nor establish who found (sic) the land was found (sic) the particulars of intervening owners.
With all deference to the learned trial Judge the ownership of BATA KUSO KUCHITA was not in issue. It could no longer be in issue in view of Exhibit ‘A’. What was in issue was the alleged trespass of the Appellants into LAWO MARSHY LAND. Did the Respondent, as the plaintiff, prove the trespass allegedly committed by the Appellants unto LAWO MARSHY land? That is the question.
The learned trial Judge found the Appellants liable in trespass to LAWO MARSHY land and awarded-
The sum of N200,000.00 (Two Hundred Thousand Naira for each year the trespass is abated for 7 years. The total sum for damages is (N1.4M) one million four hundred Thousand Naira. On the whole I hereby hold that Lawo Fadama land which is described as having been surrounded and on circled in Exhibit ‘B’ by three Rivers namely: River Kafingi, River Gbakogi and River Gbako and bounded by Emigi marshy land measuring 25.00 hectares approximately belongs and is hereby declared for the plaintiff.
2). I hereby order for perpetual injunction restraining the defendant, their relatives, privies, agents and assigns from further and ever trespassing into the land known as lawo.
3). The defendants are to pay in favour of the plaintiff, the sum of (N1,400,000.00) one million four hundred thousand Naira as damages for trespass they committed in his Lawo land for seven years.
4). The defendants are to pay five thousand (sic- Naira?) as costs to the plaintiff.
The appeal on five grounds of appeal is founded on these judgment and the orders, as above, handed down on 29th June, 2009. The parties have exchanged briefs of argument in the appeal. The Respondent, in addition, filed Notice of Preliminary objection which he argued in his brief of argument filed on 7th July, 2010 pursuant to the order of this Court, made on 1st July, 2010. The objection is directed, principally, against grounds 1 and 2 of the grounds of appeal and Issue 1 formulated from the two grounds in the Appellants’ Brief filed on 11th September, 2009.
Respondent argues that ground one of the Grounds of appeal does not arise from, nor is it based on, any specific finding or decision of the lower court. The said ground one complains that the trial court erred in law when it misconstrued Lawo Marshy land covered by Exhibit ‘A’ in suit no NSHC/13A/82 to include Bata Kuso Kuchita land. In the particulars of error the Appellants point out that the Niger State High Court on appeal in its judgment, Exhibit ‘A’, in the suit no NSHC/13A/82 had divided the disputed land between the parties therein and the portion covered by Exhibit ‘B’ was given to the Respondent. I must concede one thing to the Respondent: the learned trial Judge did not seem to appreciate the defence of the Appellants at the trial. He also thought, albeit erroneously, that the dispute before him was over declaration of title to a piece of land. The titles of the parties to LAWO MARSHY land and BATA KUSO KUCHITA land had been settled in Exhibit ‘A’. The substance of the present suit is trespass to LAWO MARSHY land by the Appellants.
The declaration of title of the Respondent to LAWO MARSHY land is unnecessarily superfluous in view of Exhibits ‘A’, ‘B’, and ‘C’, The learned trial Judge had held at page 123 that he had noticed and
wished –
to state with unhappiness that there had been a deliberate attempt on the part of the defendants to confuse and misdirect this Court by giving a different name to the land claimed by the plaintiff and different other features as stated in Exhibit ‘C;.
In view of this finding there is no substance in the objection to ground one of the grounds of appeal. It flows directly from, and it is related to, the ratio decidendi of the judgment appealed.
The attack on ground Two of the grounds of appeal is that the ground alleges misdirection in law without showing in what manner there was the said misdirection in law. I have read the said ground. It flows from the finding of the learned trial Judge that the land the Appellants mischievously called Bata Kuso Kuchita land and described in Exhibit ‘C’ was infact not a different land from the land called LAWO MARSHY Land being claimed by the Respondent. The totality of the ground and its particulars is that the learned trial Judge failed to see the import in law of Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ viz -a-viz the contention of the Appellants that the two portions of lands – Lawo Marshy land and Bata Kuso Kuchita land are distinct, separate and different.
Ground 2, in my view, is a good and competent ground of appeal. The objection to it is, accordingly, dismissed. Issue 1 formulated from grounds 1 and 2 is in the circumstance a valid issue for determination.
From the five grounds of appeal the Appellants, through Benjamin A. Adokwu, Esq., formulated the following 3 issues –
1. Whether the trial court was right when it held that Lawo Marshy land covered by Exhibits ‘A’ and ‘B’ is the same and one with Bata Kuso Kuchita covered by Exhibit ‘C’? – Grounds 1 and 2.
2. Whether the trial court properly considered and evaluated oral evidence of DW.2 and the documentary evidence or Exhibit ‘C’ in his judgment? – Ground 3.
3. Whether the trial court was right when it held that the Appellants have trespassed into Lawo marshy land and awarded one million, four hundred thousand Naira as damages and five thousand Naira as cost against the Appellants in favour of the respondent when Exhibits ‘C’ and ‘D’ clearly show that lawo marshy land is different from Bata Kuso Kuchita (meaning: Kuchita forest)? – Ground 4.
The Respondent formulated only two issues from grounds 3 and 4. He was apparently self assured that he would succeed in the objection to grounds 1 and 2. Neither the Appellants nor the Respondent formulated any issue from the omnibus ground 5. The said ground 5 having been abandoned, is hereby struck out.
The Respondents two issues read thus:
1. Whether from the state of the pleadings and the evidence adduced, the learned trial Judge was right to have held that the Appellants trespassed into the Respondent’s land and thereafter proceeded to award damages against the Appellants and in favour of the Respondent? – Ground 4.
2. whether the non evaluation or non consideration of the oral evidence of DW.2 and Exhibit ‘D’ by the trial court has occasioned any miscarriage of justice in this suit? – Ground 3.
The substance of the Respondent’s suit is the alleged trespass of the Appellants to Lawo Marshy land. The Appellants maintained that they never entered Lawo Marshy land, which they acknowledged belongs to the Respondent. In effect, they insisted that they carried their activities only on their land – Bata Kuso Kuchita land. Their case founded on Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ is that Lawo marshy land and Bata Kuso Kuchita land are distinct, separate and different. They pleaded Exhibit ‘D’ to show not only abuse of court’s process, but also issue estoppel: the Chief Magistrate Court, Agaie having discharged and acquitted them for the same trespass. The Respondent, the PW.1, had admitted that he had maintained concurrently against the Appellant the civil action, the subject matter of this appeal and the criminal proceedings for trespass in Exhibit ‘D’. There could be no better evidence of abuse of court’s process than Exhibit ‘D’ and the instant action maintained concurrently against the Appellants by the Respondent at two different courts at the same time. Multiplicity of actions for trespass to Lawo Marshy land by the present Respondent against the appellants is clearly an abuse of the court’s process. The abuse of process lies not only in multiplicity of the actions but also in the manner the Respondent had exercised his right to harass and annoy his adversaries. See SARAKI v. KOTOYE (1992) 11 – 12 SCNJ 26.
Exhibit ‘D’ raises issue estoppel against the Respondent in favour of the Appellants who were discharged and acquitted for the same trespass to Lawo Marshy land. Exhibit ‘D’ forms part of the totality of the evidence which the learned trial Judge had had to consider before reaching his decision. The Supreme Court in MOGAJI v. ODOFIN (1978) 4 SC 91 at 93 had laid it down clearly that, in considering the preponderance of credible evidence the trial Judge has to examine the totality of the evidence in the case; and that he has to place on an imaginary scale the set of evidence given by a party against the evidence of the other party in order to arrive at his preference of the evidence of one party for the other. In the entire judgment of 25 pages, form page 112 to 126 of the Record, the learned trial Judge never once considered the import and impact of Exhibit ‘D’ on the case before him. This clearly is a failure of proper evaluation of the evidence before him. The Respondent has argued that Exhibit ‘D’ ought not to have been admitted in evidence in the first place because it was not relevant to the case and that relevancy governs admissibility. Exhibit ‘D’ was specifically pleaded in paragraph 15 of the Further Amended Statement of Defence. It is a pleaded fact and a fact on which issues were joined to establish malicious and vexatious litigation, as well as abuse of court’s process. The law is trite that a suit which is an abuse of the court’s process is a vexatious suit. See MORGAN v. W.A. AUTOMOBILE (1971) NMLR 219 at 221. The failure of the learned trial Judge to properly evaluate the evidence adduced by the Appellants, particularly Exhibit ‘D’, has occasioned a miscarriage of justice. The judgment in the circumstance is perverse. Exhibit ‘D’, a public document, was tendered from the Bar without objection. It was pleaded. The Respondent argues that it was an inadmissible piece of evidence. There is no cross-appeal on this.
The Respondent, by consent having allowed Exhibit ‘D’ to be put into the evidence, can not be heard to say that it was inadmissible in evidence.
In view of paragraph 15 of the Further Amended Statement of Defence the Respondent can not be heard to say also that Exhibit ‘D’ is irrelevant. On the basis alone, of Exhibit ‘D’, the trial court should have dismissed the suit of the Respondent. It established the vexatious nature of the suit, which was designed to oppress the Appellants, the adversaries of the Respondent.
The trespass asserted is restricted to the area of land covered by Exhibits ‘A’ and ‘B’. That is Lawo Marshy land. Exhibits ‘B’ and ‘C’, as found by the learned trial Judge at page 123 of the Record, were made by the same person, Haruna Shehu, the Deputy Surveyor-General of Niger State. The Respondent called this witness as PW.9. He was DW.4 for the defence. He produced Exhibits ‘B’ and ‘C’ respectively for the Plaintiff/Respondent and Defendants/Appellants. The learned trial Judge, at page 123 of the Record, highlighted his evidence to the effect that he made Exhibits ‘B’ and ‘C’, and that the portions of land delineated by Exhibited ‘B’ is not the same portion of land described in Exhibit ‘C’. This piece of evidence is hostile to the case of the Respondent. It has completely uprooted the assertion of the Plaintiff/Respondent and given a solid concrete base for the defence of the Appellants. The learned trial Judge, not being a witness or party in the dispute himself was unreasonably unhappy, inspite of Exhibit ‘C’ and the evidence of DW.4 (who also was PW.9), that these pieces of evidence, showing that the portions of land shown in Exhibits ‘B’ and ‘C’ are different were a mere “deliberate attempt on the part of the defendants to confuse and misdirect this Court by giving a different name to the land claimed by the Plaintiff and a different other feature as in Exhibit ‘C”‘. Neither PW.9 (DW.4) nor the defence misled the trial court by Exhibits ‘B’ and ‘C’. The court had descended into the arena and had thoroughly confused itself. At page 124 the learned trial Judge found that from Exhibits ‘B’ and ‘C’, coupled with the evidence of PW.9 and DW.4, Mallam Haruna Shehu, he could see that Lawo Marshy Land and Bata Kuso Kuchita land are two separate portions of land owned, respectively, by the Plaintiff/Respondent and Defendants/Appellants, and that the two parcels of land have common boundary in River Gbako. It is the same Judge who had held at page 122 of the Record, though perversely, that the defence had given their land described in Exhibit ‘C’ a different name from the land delineated in Exhibit ‘B’ in order to mislead him, and that the land in Exhibit ‘C’ was part of the Lawo Marshy land. The hallmark of good judgment is certainty.
Prevarication is not an attribute of a good Judge. The learned counsel for Appellant submitted, and I agree, that the learned trial Judge prevaricated on the issue as to whether the parcels of land covered by Exhibits ‘B’ and ‘C’, in respect of which Mallam Haruna Shehu testified as PW.9 and DW.4, were the same or different.
It is submitted for the Appellant, and I agree, that from “Exhibits ‘A’, ‘B’ and ‘C’ Lawo Marshy land is not the same and one as Bata Kuso Kuchita” and that the two are different parcels of land.
The burden is therefore on the Respondent who asserts that the Appellants trespassed unto his Lawo Marshy land to prove that the Appellants in fact trespassed to the said Lawo Marshy land. No witness, including PW.1 and PW.9, showed the particular area in Lawo Marshy land that the Appellants allegedly trespassed into. It is not enough, as stated tersely by PW.1 at page 75 of the Record that the Appellants entered into the parcel of land “the court had divided” for him and the Defendants/Appellants.
The burden of proof on the Plaintiff/Respondent is not one that can be discharged casually and whimsically. He must show with certainty the portion of land the alleged trespass was committed.
This is more so that the claim of damages for trespass is followed by a prayer for perpetual injunction restraining the Appellant, their privies or agents “from ever and further trespassing” into the said Lawo Marshy land. An order for injunction to restrain trespass or further trespass must relate to a specific and ascertainable area of land.
My Lords, I have gone through the full gamut of the pleadings, evidence and judgment in this case and it is my firm judgment that the Respondent, as Plaintiff, did not prove the trespass the Appellants were alleged to have committed in Lawo Marshy land. The suit was an abuse of process, It was frivolous and vexatious.
Unfortunately, the learned trial Judge fell for it. In consequence of, all I have been saying; I have no difficulty allowing the appeal in its entirety, I allow the appeal. The judgment, including all orders therein, made by the learned trial Judge on 29th June, 2009 in the suit no NSHC/BD/11/2004, is hereby set aside. In its stead I enter an order dismissing the suit. And that shall be the order of the trial court.
The Appellants are entitled to costs which they had thrown away or suffered in defending the suit at the trial court and in prosecuting this appeal. There are 33 Defendants/Appellants in the suit that smacks of abuse of court’s process: a malicious one for that matter. Costs, I know are not intended to be punitive. But they have to be realistic. An award of N300,000.00 in my assessment is reasonable. The said sum is hereby awarded to the Defendants/Appellants jointly and/or severally, as costs both at the trial court and here.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing the judgment of my learned brother EKO, J.C.A. and agree entirely with the reasons appraised therein and the conclusion that the appeal is meritorious.
It is pertinent to observe that the land owned by the appellants is known as Bata Kuso Kuchita, while that of the respondent on the other hand is known as Lawo Marshy land. These two parcels of land have not been shown by evidence to be one and the same nor even overlap in their area of coverage.
It is the duty of the respondent in his claim for trespass against the appellants to identify the land upon which his claim is predicated. If the land in dispute is not identifiable with certainty, an accurate survey plan drawn to scale identifying the parameter boundary of the land is necessary to prove the identity of the land in dispute. In the instant case the appellants have identified their portion of the land which is different from that of the respondent. There is therefore no conflicting claim on a common parcel of land as erroneously held by the court below.
The averments in the pleadings of both parties relate also to the different pieces of land known as Lawo Marshy land and Bata Kuso Kuchita to which the respondent and the appellants assert their respective claims of title. It makes the issue easier for the court to determine without going into unnecessary speculations. For the foregoing appraisal and the more detailed reasons in the lead judgment, the appeal is clearly meritorious and same is hereby allowed.
I adopt the consequential orders made in the judgment inclusive of that as to costs.
REGINA OBIAGELI NWODO, J.C.A.: My lords, I had the privilege to read in advance the Judgment of my lord Ejembi Eko, JCA, just delivered with which I entirely agree for the same reasons contained in the lead judgment, I too allow this appeal.
The duty on the plaintiff in a claim for damages for trespass is to show he was in possession of the particular portion of the land. The law is settled that when a plaintiff claim damages for trespass he has a duty to satisfy the court that at the time of the alleged trespass he was in possession of the particular portion of the land in respect of which the trespass was committed. See Ogundipe v. Awe (1988) 1SC 216 Objuru v. Ozim (1985) 2 NWLR (Pt. 6) 167.
The identity of land must be clear. The Respondent as plaintiff in the court below did not prove that he is in possession of the specific potion of land in issue. Speculation without credible evidence cannot earn an award of damages based on trespass. The Respondent having failed to prove trespass on Lawo Marshy land he was not entitled to the claim. I hold there is merit in the appeal and it succeeds, I abide by the consequential order made inclusive in the lead judgment the order as to cost.
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Appearances
Benjamin A. Adokwu, Esq.For Appellant
AND
Chris Ubogu, Esq.For Respondent
