ALLASURE v. ODEZEH
(2021)LCN/15158(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/YL/127/18
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
UMARU ALLASURE APPELANT(S)
And
ROSEMARY O. ODEZEH (NOW KNOWN AS ROSEMARY O. OKEWUBUO) RESPONDENT(S)
RATIO
BURDEN OF PROOF PLACED ON A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The foregoing and the general principle of law to the effect that he who asserts must prove, is the reason why it is well settled principle of law that a party who desires the Court to make a declaration of title in its favour must clearly establish by cogent and reliable evidence, that such party is the owner of the land in question. The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035(SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C. reiterated the foregoing thus: “The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.” See Section 137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS(2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI(2019) LPELR-48495(CA). PER AMILU YAMMAMA TUKUR, J.C.A.
WAYS BY WHICH OWNERSHIP OF LAND MAY BE ESTABLISHED
Counsel on both sides of this appeal have correctly stated the possible ways that ownership of land might be proven, to wit: (1) By traditional history or evidence or; (2) By documents of title or; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or; (4) By acts of long enjoyment and possession of the land or; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. See AJIBULU v. Ajayi (2013) LPELR-21860(SC) A party is at liberty to choose any way they wish to prove their ownership of land, so long as they establish same on the balance of probability which is the standard of proof in civil cases, including cases of declaration of title to land. PER AMILU YAMMAMA TUKUR, J.C.A.
NATURE OF CONTRADICTION IN THE TESTIMONIES OF WITNESSES THAT WILL AFFECT THE JUDGMENT OF THE TRIAL COURT ON APPEAL
Appellant’s position on contradiction in the testimonies of some of the Witnesses holds no water, as they are not material, in that they do not impugn the evident fact that the Respondent bought the land from the previous lawful owner. See: OGUNDOYIN & ORS v. EWENLA (2017) LPELR-43218(CA); AJAYI & ORS v. AKAWA & ANOR (2018) LPELR-44933(CA); and ANAGBADO v. FARUK (2016) LPELR-41634(CA). PER AMILU YAMMAMA TUKUR, J.C.A.
WHAT ARE DAMAGES
Damages have been defined as compensation in money, that is an amount of money awarded by a Court of law to a successful plaintiff/claimant as compensation for loss or harm of any kind which result either from the commission of tort by the other party or breach of contract. PER AMILU YAMMAMA TUKUR, J.C.A.
NATURE OF GENERAL DAMAGES
Unlike special damages, general damages do not have to be particularly pleaded and proved by a Claimant, rather it is awarded as part of the natural consequences of the Tortfeasor’s actions. See: IFESINACHI INDUSTRIES NIGERIA LTD & ANOR v. VINEE OIL LTD (2015) LPELR-25130(CA). The foregoing is even more true for trespass to land which is actionable per se and attracts damages upon proof, regardless of whether actual harm is proven or not. See: ALADI v. OGBU (2018) LPELR-43691(CA). PER AMILU YAMMAMA TUKUR, J.C.A.
CIRCUMSTANCES UNDER WHICH AN APPELLATE COURT WILL INTERFERE WITH THE QUANTUM OF DAMAGES AWARDED BY A TRIAL COURT
The Supreme Court in the case of OYENEYIN & ANOR v. AKINKUGBE & ANOR (2010) LPELR-2875(SC) (P. 25, paras. A-G) Per ADEKEYE, J.S.C., gave a guideline on when an Appellate Court will interfere with the quantum of damages awarded by a trial Court in a claim of damages for trespass thus: “Generally the trial Court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any legal rules but the discretion of Court is however limited by usual caution or prudence and remoteness of damage when considering its award of damages. An appellate Court will not interfere with an award of damages by a trial Court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate Court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. See U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558; Solanke v. Ajibola (1969) 1 NMLR pg. 45; Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188; Thompson v. Adefope (1961) 1 ANLR Pg. 322 ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653.” PER AMILU YAMMAMA TUKUR, J.C.A.
AMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in SUIT NO: TRSJ/54/2014 delivered on 26th March, 2018 by Honourable Justice Ali I. Andenyangtso (as he then was now J.C.A.) wherein the Court gave judgment in favour of the Respondent.
The material facts of the case leading to this appeal is that the Respondent acting on the belief that she is the beneficial owner of the land in dispute instituted an action in the lower Court via a Writ of Summons dated 4th June, 2014, and by her amended statement of claim dated and filed on 28th November, 2016, claimed the following:
1. A DECLARATION of title over that piece of land covered by Right of Occupancy No. TS/14950 with reference No. TS/MIS/LAN/20476 and dated 1st August, 2005 with total area of 900 square meters, in favour of the plaintiff.
2. A DECLARATION of this Hon. Court that the defendant’s action amounted to trespass ab initio.
3. AN ORDER of this Hon. Court evicting the defendant and his privies from the plaintiff’s land.
4. AN ORDER of perpetual injunction restraining the
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defendant, his privies, agents, servants, and any person claiming from him, from further act of trespass on the plaintiff’s land.
5. GENERAL DAMAGES of N1 Million (N1,000,000:00).
6. The cost of filing and prosecuting this suit
In response, the Appellant filed his statement of defence along with other requisite processes and the matter devolved to a full trial.
In a judgment delivered on 26th March, 2018, the lower Court found that the Respondent had proven her claim and granted her the reliefs prayed for, with general damages of N500,000.00 (Five Hundred Thousand Naira).
Dissatisfied with the decision, the Appellant appealed via a Notice of Appeal dated and filed on 30th March, 2018, with 7 grounds of appeal.
The Appellant’s amended Brief of Argument is dated 28th October, 2020 and filed on 30th October, 2020, but deemed properly filed on 11th March, 2021.
Appellant’s counsel distilled three issues for determination to wit:
1. Whether from the Pleadings, evidence and exhibits tendered the trial Court was right to have granted the reliefs sought by the Respondent (Ground 1).
2. Whether the
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Appellant who did not counter claim at the trial Court has any burden of proof on him to be discharged. (Grounds 2 and 3).
3. Assuming the Respondent has proved her case, whether the award of Five Hundred Thousand Naira (₦500,000.00) by the trial judge as general damage is not outrageous and ridiculous. (Ground 4)
The Respondent in her brief of argument filed on 5th October, 2020 adopted the three issues formulated by the Appellant and I will also proceed to determine this appeal on the issues raised as they capture the controversy in this appeal. Issues one and two will be resolved together as they are substantially linked.
ISSUE ONE:
Whether from the Pleadings, evidence and exhibits tendered, the trial Court was right to have granted the reliefs sought by the Respondent (Ground 1).
ISSUE TWO:
Whether the Appellant who did not counter claim at the trial Court has any burden of proof on him to be discharged. (Grounds 2 and 3).
Learned counsel for the Appellant argued that the Respondent failed to establish her title to the land in dispute, as her pleadings to the effect that she is entitled to the land via traditional
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history and purchase were not properly backed by evidence at trial, hence had been effectively abandoned.
He relied on: Owoeye v. Oyinola (2014) 11 FWLR (Pt. 721) at P. 1458 ratio 4; Benedict Otanma v. Kingdom Youdubagba (2006) 136 LRCN 312 P.89 paras A-B; and Akande v. Adisa (2012) 15 NWLR (Pt.1324) P.538(SC).
Learned counsel further argued that the testimony of the Respondent’s witnesses with regards to the root of title contained material contradictions, and ought to be jettisoned, as the PW3, whom the Respondent had claimed to have bought from, testified that it was his brother, the PW6 who sold the land whereas the PW6 testified that he never did but only partitioned same. He further pointed out that the pleadings and testimonies as to traditional history also contained material contradictions, in that while PW6 testified that Tahiru was the original founder of the land, PW5 testified that it was Tahiru’s father who found the land originally and their testimony contradicted paragraph 9 of the Respondent’s amended statement of claim.
He relied on the following: Mogaji & Ors v. Cadbury & Ors (1985) (Pt. 11) Vol.16 NSCC
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959; Onuoha Nwokorobia v. Desmond Uchechi Nwogu (2009) ALL FWLR 476 1866; Newman Olodo & Ors v. Chief Burtoun M. Josiah & Ors (2010) 12 NMLR (Pt. 11) 510; and Cornelius Anjorin Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Nigeria (2003) 7 SCNJ 463.
Counsel submitted that the learned trial Judge was wrong to have held that the Appellant failed to lead evidence in support of his traditional history of ownership, as the Respondent’s claim seeking declaration of title succeeds or fails on its own strength and there was no burden of proof on the Appellant in the absence of a counter claim.
He referred to the case of Adewuyi v. Odukwe (2005)
He submitted that the mere production of right of occupancy by a party to a declaration for title to land, does not automatically mean that party has ownership interest in the land. He relied on the case of Asheik v. Borno State Government (2012) 9 NWLR (Pt1304) P. 1.
On the other hand, learned counsel for the Respondent argued that the Respondent at trial successfully established her claim for declaration of title to the land in dispute by clearly pleading purchase of
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the land and traditional history, which are two settled ways of proving title to land and proved the veracity of both by calling eight witnesses and tendering four Exhibits, which proved that she is the owner of the land.
He referred to the cases of OYEDELE VS ODUMOSU (2016) LPELR -4144D (CA); and IDUNDUN & ORS VS OKUMGBA (1976) SC.
Learned counsel argued that the testimonies of the Witnesses rather than being materially contradictory, helped to clearly establish that the Respondent bought the land from PW3 who gave instructions to PW6, his brother to partition the land. He further argued that there was no contradiction in the testimonies establishing the traditional history, as the pleadings and testimonies revealed that the original settler of the land, that is, Mohammed Madding was the father to Mohammed Tahiru. He relied on YAKUBU V JAUROYEL & ORS (2014) LPELR-22732(SC); SAMBO & ORS VS THE NIGERIAN ARMY COUNCIL & ORS (2015) LPELR-40636(CA); UWAGBOE V STATE (2008) LPELR-3444 (SC); and WANKEY V STATE (1993) LPELR-3470(SC).
Counsel submitted that Appellant’s contention with regards to burden of proof was erroneous,
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because once the Respondent had proved her claim on the balance of probabilities, the evidential burden shifts and vest on the Appellant to prove the existence of facts forming the basis of their defence.
He referred to the following:
S.133(2) of the Evidence Act 2011; ANENE & ORS V OKOYE (2013) LPELR-21877(CA); and ITAUMA V. AKPE- IME (2000) LPELR-1557(SC).
RESOLUTION OF ISSUES ONE AND TWO
A declaration of title to land by a Court of competent jurisdiction in favour of one party and against another or others, is a serious act which will translate in the extinguishing of ownership rights in the land on the part of the person or persons against whom the order is made.
The foregoing and the general principle of law to the effect that he who asserts must prove, is the reason why it is well settled principle of law that a party who desires the Court to make a declaration of title in its favour must clearly establish by cogent and reliable evidence, that such party is the owner of the land in question.
The Supreme Court in the case of ONOVO & ORS v. MBA & ORS (2014) LPELR-23035(SC), (P. 27, paras. A-E) per OGUNBIYI, J.S.C.
7
reiterated the foregoing thus:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.”
See Section 137(1) of the Evidence Act; KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR-1703(SC); OLATOMIDE & ANOR v. IKUMUYILO & ORS(2019) LPELR-48374(CA); and OLATUNJI & ORS v. AYENI(2019) LPELR-48495(CA).
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Counsel on both sides of this appeal have correctly stated the possible ways that ownership of land might be proven, to wit:
(1) By traditional history or evidence or;
(2) By documents of title or;
(3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or;
(4) By acts of long enjoyment and possession of the land or;
(5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute.
See AJIBULU v. Ajayi (2013) LPELR-21860(SC)
A party is at liberty to choose any way they wish to prove their ownership of land, so long as they establish same on the balance of probability which is the standard of proof in civil cases, including cases of declaration of title to land. In this appeal, the Respondent at trial, decided to go with proof by purchase/production of documents of title, coupled with the traditional history of her predecessor in title, who sold to her. This is a perfectly acceptable means of establishing
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ownership of land and a careful examination of the testimonies of the Respondent’s witnesses coupled with the exhibits tendered, reveals that the Respondent proved that she bought the land from a particular person and established by traditional history how title devolved to that Vendor. See:SOGUNRO & ORS v. YEKU & ORS (2017) LPELR-41905(SC); and SURAKATU v. ADEKUNLE (2019) LPELR-46412(CA).
The learned trial Judge in reaching the conclusion that the Respondent had satisfactorily established her entitlement to a declaration of title to the land in dispute at pages 231 – 232 of the record of appeal, held thus:
“As to purchase, the transaction between the plaintiff and her vendor has been adequately pleaded in paragraph 9 of her statement of claim and she has called evidence through her witnesses to piece the history of the land together as a single unit. PW1 worked on the land having been engaged by the plaintiff. PW2 connected the plaintiff with the owner of the land who was Aminu Mohammed Karim (PW3). PW3 sold the land to the plaintiff. This witness stated in his evidence on oath that he bought the land which was advertized
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to him by his younger brother Ibrahim Ja’afaru Yerima at the cost of N150,000.00 in August 2000 by which time there were no structures around the area except a small hamlet in the Northwestern axis. PW3 stated that he instructed Ibrahim Ja’afaru Yerima in 2004 to partition the land into plots which were sold to different persons including the plaintiff who had enjoyed quiet and peaceful possession of the land until 2013. PW5 traced the history of the land in dispute to his grandfather and how his father sold part of the land to PW4. From the totality of the evidence adduced by the plaintiff, I am satisfied that the plaintiff has proved her case on the preponderance of evidence. This is because she has pleaded and called evidence in support of the facts pleaded and the steps, she took to obtain a right of occupancy; how she fought the defendant’s interference with the land by reporting to the relevant Ministry of Urban Development and Town Planning.”
I find the above analysis by the learned trial Judge to be unimpeachable, as it represents a proper application of the relevant principles of law to the facts at trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Appellant’s position on contradiction in the testimonies of some of the Witnesses holds no water, as they are not material, in that they do not impugn the evident fact that the Respondent bought the land from the previous lawful owner.
See: OGUNDOYIN & ORS v. EWENLA (2017) LPELR-43218(CA); AJAYI & ORS v. AKAWA & ANOR (2018) LPELR-44933(CA); and ANAGBADO v. FARUK (2016) LPELR-41634(CA).
The assertion by Appellant’s counsel with regards to the learned trial Judge’s holding that the Appellant failed to call evidence in support of his defence is also misplaced. The lower Court did not inappropriately shift the burden of proof to the Appellant, rather the Court stated and applied the trite principle of law that once a Plaintiff has discharged the legal burden of proof upon him to the required standard, the evidential burden of proof arises, which behoves upon the Defendant to prove, moreso where there are particular facts the Defendant is relying upon. The implication of the above is that issues one and two are resolved against the Appellant.
ISSUE THREE:
Assuming the Respondent has proved her case,
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whether the award of Five Hundred Thousand Naira (₦500,000.00) by the trial judge as general damage is not outrageous and ridiculous. (Ground 4)
Learned counsel for the Appellant argued that the sum of N500,000.00 (Five Hundred Thousand Naira) awarded by the lower Court as damages is outrageous, ridiculously high and was arrived at in the absence of applicable principle of law. He further argued that in these circumstances, the award of damages by the lower Court ought to be overturned by this Court.
He referred to the cases of Taylor v. Ogheneovo (2012) 13 NWLR (Pt. 1316) P. 46 (CA) and Ero v. Tinubu (2012) 8 NWLR (Pt.1301) P.104(CA).
On the other hand, learned counsel for the Respondent argued that the award of damages by a trial Court is purely discretionary and urged this Court to uphold the award made by the lower Court herein as same was reasonable in light of the surrounding circumstances.
He relied on the following cases:
AHMED VS CBN (2013) 2 NWLR (PART 1339) P.524; and TAYLOR VS OGHENEOVO (2012) 13 NWLR (PART 1316) P. 46(CA).
RESOLUTION OF ISSUE THREE
Damages have been defined as compensation in money, that is an
13
amount of money awarded by a Court of law to a successful plaintiff/claimant as compensation for loss or harm of any kind which result either from the commission of tort by the other party or breach of contract.
Unlike special damages, general damages do not have to be particularly pleaded and proved by a Claimant, rather it is awarded as part of the natural consequences of the Tortfeasor’s actions. See: IFESINACHI INDUSTRIES NIGERIA LTD & ANOR v. VINEE OIL LTD (2015) LPELR-25130(CA). The foregoing is even more true for trespass to land which is actionable per se and attracts damages upon proof, regardless of whether actual harm is proven or not. See: ALADI v. OGBU (2018) LPELR-43691(CA).
The Supreme Court in the case of OYENEYIN & ANOR v. AKINKUGBE & ANOR (2010) LPELR-2875(SC) (P. 25, paras. A-G) Per ADEKEYE, J.S.C., gave a guideline on when an Appellate Court will interfere with the quantum of damages awarded by a trial Court in a claim of damages for trespass thus:
“Generally the trial Court has discretion as to the quantum of damages it would award in a claim of damages for trespass. The assessment does not depend on any
14
legal rules but the discretion of Court is however limited by usual caution or prudence and remoteness of damage when considering its award of damages. An appellate Court will not interfere with an award of damages by a trial Court unless in situations which include (a) Where the Court acted under wrong principles of law (b) Where the Court acted in disregard of applicable principles of law (c) Where the Court acted in misapprehension of facts (d) Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award (e) Where injustice will result if the appellate Court does not act (f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages. See U.B.N. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558; Solanke v. Ajibola (1969) 1 NMLR pg. 45; Ziks Press Ltd. v. Alvan Ikoku (1951) 13 WACA 188; Thompson v. Adefope (1961) 1 ANLR Pg. 322 ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653.”
A calm analysis of the facts at trial and on this appeal reveal that the amount awarded by the trial Court is not ridiculously high, neither was it
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reached in any of the other circumstances as listed above as to vitiate its validity, thus I will refrain from interfering with the award.
This issue is also resolved against the Appellant.
The consequence of my resolving all the issues in this appeal against the Appellant is that the appeal is devoid of merit and is accordingly hereby dismissed. The judgment of the lower Court delivered on 26th March, 2018 in Suit No. TRSJ/54/2014 is hereby affirmed. Parties to bear their own costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment of my learned brother JAMILU YAMMAMA TUKUR, J.C.A. His Lordship has comprehensively and adequately resolved the issues for determination of this appeal and I have nothing to add. I adopt his reasoning and conclusion arrived at as mine in dismissing the appeal for lacking in merit and also affirming the judgment of the lower Court.
I abide by the order made as to costs in the leading judgment that all parties should bear their respective costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
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Appearances:
P. Mahanan Principal Legal Aid Officer, Legal Aid Council of Nigeria Taraba State Office, holding the brief of M. G. Josiah For Appellant(s)
Respondent was not represented. For Respondent(s)
