MR MATHEW D. AHMADU V. MRS RIFKATU SOLOMON
(2010)LCN/3764(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of May, 2010
CA/K/139/06
RATIO
APPEAL: WHAT IS THE DUTY OF THE APPELLATE COURT WHERE EVIDENCE HAS BEEN IMPROPERLY RECEIVED BY THE TRIAL COURT
It is trite that where evidence has been improperly received by the trial court as in this case, it is the duty of the appellate court to reject such evidence and decide the case on legal evidence even when no objection has been raised. PER JOHN INYANG OKORO, J.C.A.
EVIDENCE: EFFECT OF UNCONTROVERTED EVIDENCE
It is trite that where the evidence of the plaintiff is not controverted or contradicted by a defendant in evidence, unless that evidence is potently incredible, the trial court ought to and should regard the matter to be proved by evidence of the plaintiff. See Okoebor Vs Police Council (2003) FWLR (pt 104) 189, (2003) 5 SCNJ 52. PER JOHN INYANG OKORO, J.C.A.
TORT: TRESPASS; WHEN HAS A PERSON COMMITTED TRESPASS
A person is said to commit trespass to land if he ordinarily and intentionally and without consent or privilege, right, lawful authority or an express or implied invitation, enters into another’s property. PER JOHN INYANG OKORO, J.C.A.
DAMAGES: PRINCIPLES GUIDING THE AWARD OF DAMAGES
In awarding general damages, it is within the discretion of a court to make its own assessment, albeit such an exercise must be related to the evidence. See Okoko V. Dakolo (supra). It has been held by the Supreme Court in Umunna V. Animudu (1978) 6 – 10 SC 1, that where the trespass complained of is devoid of aggravating circumstances, it can only attract nominal damages and that an appellate court can reduce the amount of damages awarded in appropriate circumstances. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
MOHAMMED L. GARBA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
MR MATHEW D. AHMADU Appellant(s)
AND
MRS RIFKATU SOLOMON Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court presided by Hon. Justice James Abiriyi delivered on the 8th day of August, 2003, whereby the court below granted the declaratory reliefs and General damages sought against the Appellant.
A brief fact of the case are that one Adio Okanlawon who testified as PW1 at the court below acquired the property known as No. 25 Gadam St, Trikania a.k.a No. AF17 Gadam St Trikania, Kaduna from one Gwari man who issued him a written document i.e., Exhibit 3. He built a house up to lintel level and then sold it to the Respondent. He handed over to the Respondent a certificate of occupancy and a written agreement which are Exhibits 1 and 3 respectively. The said Adio and the Respondent made an agreement therein which is Exhibit 2. After buying the uncompleted building, the Respondent added “two coaches” of blocks for the purpose of roofing.
Since the Respondent resides in Katsina, she used to visit the property from time to time for purposes of clearing it. In June, 1999, the Respondent went and cleared the site. However, in December, 1999 when she returned to the site, she discovered that the building had been completed with doors and even painted. She reported the matter to both her solicitor and the police. Police invited one Mallam Ibrahm Dogo who was found doing work on the property and he made statement and produced documents bearing the Appellant’s name. The Respondent then filed this matter in court below making the following claims:-
(a). A Declaration that PROPERTY LYING, KNOWN AND SITUATE AT No.25 Gadani Street, Trikania Street Kaduna by certificate of occupancy No. KCH/C/000143 dated 18th day of October, 1988 otherwise called AF 17, Gadan Street, Trikania, Kaduna by the 1st Defendant belong to the plaintiff.
(b). A declaration that the plaintiff is the one entitle (sic) to statutory right of occupancy over the said property No. 25, Gadan Street, Trikania, Kaduna which the 1st Defendant called No. AF 17, Gadan Street, Trikania, Kaduna over which 1st Defendant had applied to the 2nd Defendant for statutory right of occupancy.
(c). A declaration that the 1st Defendant trespassed into the property of the plaintiff which is No. 25 Gadan Street, Trikania, Kaduna that the 1st Defendant claimed to have bought from Kaduna State Winding up Committee on ‘Abandoned Properties’ as she never abandoned her property.
(d). Perpetual injunction restraining the 1st Defendant from further trespass into the property No. 25 Gadan Street, Trikania, Kaduna otherwise called No. AF 17 Gadani Street, Trikania Kaduna, by the 1st Defendant.
(e). Perpetual injunction restraining the 2nd Defendant from issuing a Statutory Right of Occupancy to the 1st Defendant over the plaintiff’s property No. 25 Gadani Street, Trikania, Kaduna which the Defendant called No. AF 17, Gadani Street, Trikania, Kaduna.
(f). N500,000,00 damages against the 1st Defendant for trespass onto the Plaintiffs premises or property No. 25 Gadani Street, Trikania, Kaduna which he called No. AF 17 Trikania, Kaduna.
(g). Cost of this action.
Two witnesses testified for the Respondent. The Appellant did not contest this claim at the lower court. At the end, the learned trial Judge granted all the declaratory reliefs sought and the sum of N100,000=00 as general damages with N5,000=00 costs on 8/8/03.
Dissatisfied with the said judgment, the Appellant filed notice of appeal dated 7/5/04 on 10/5/04. Four grounds of appeal were filed out of which the Appellant has formulated two issues for the determination of this appeal namely:-
1. Whether the Respondent discharged the burden of proof as required by law to warrant the Honourable trial court making or granting the Declaration sought for in the writ of summons and statement of claim filed before the Honourable Trial Court.
2. Whether, bearing in mind the circumstances and facts of this case, the Honourable trial court was right in declaring the Appellant a Trespasser and awarding Damages against him.
The learned counsel for the Respondent in his brief adopts the issues formulated by the Appellant for the determination of this appeal. I shall determine this appeal on these two issues accordingly.
On the 1st issue, the learned counsel for the Appellant submitted that the documents tendered, admitted and relied upon by the trial court were by law inadmissible. Citing and relying on the case of Lawson V. Afani Continental Co. Nig Ltd (2002) FWLR (pt 109) 1736 at 1757 – 1759 F-B or (2002) 2 NWLR (pt 752) 585, learned counsel submitted that Exhibit I, the Kaduna State Local Government Certificate of Occupancy No.KCM/C/000143, being an original Local Certificate of Occupancy is a public document, and that under the Evidence Act, it is only a certified true copy of a public document that is admissible. Also that the original of a public document can only be admitted in evidence if it satisfies the provision of section 91(1) of the Evidence Act relying on the case of Chief Philip Anatogu & Ors Vs Igwe Iweka II & Ors (1995) 8 NWLR (pt 415) 547 at 572.
It was further submitted that what was tendered and admitted as Exhibit I was different from the one pleaded in paragraph 4 of the statement of claim, for, whereas paragraph 4 of the statement of claim describe the document as certificate of occupancy No.KCM/C/000143, the PW1 who testified described the document as a Kachia Local Government Certificate of Occupancy but what was tendered was a Kaduna State Local Government Certificate of occupancy No.KMC/C/000143. Furthermore, that where a party specifically pleads certain documents to establish the case, he cannot be allowed during the trial to rely on other documents different from those specifically pleaded for which these cases were cited in support – Mohammed V. Klargester Nig. Ltd (2002) FWLR (pt 127) 1078 at 1093 B – E and 1099 D-G, Hashidu V. Goje (2004) All FWLR (pt 228) page 662 at 683 – 684 H – E and INEC V. Ray & Anor (2004) 14 NWLR (pt 892) 92 at 136 A – C.
As regards Exhibits 2, 3, & 7 learned counsel submitted that these are instruments affecting land and by section 15 of the Land Registration Law of Kaduna State cap 85 vol. 2 Laws of Kaduna State, 1991, no instrument shall be pleaded or given in evidence in any court as affecting any land unless same shall have been registered. He urged this court to expunge them from the record citing these cases:-
Savanah Bank V. Ibrahim (2000) FWLR, (pt 25) 1626 at 1647 B – D, Lawson V Afani Continental Co. Nig. Ltd (Supra).
On Exhibits 4, 5 and 6, learned counsel submitted that since they are photocopies of public documents and not certified, they were wrongly admitted by virtue of section 109(1) and 112 of the Evidence Act. He also cited the case of Pa John Umogbai & Ors Vs Pa Ifenera Aiyemhoba (2002) FWLR (pt 132) 192 at 198 B – D. He then urged this court to expunge Exhibits 1, 2, 3, 4, 5, 6 and 7 from the record and resolve the 1st issue in favour of the Appellant.
In his reply, the learned counsel for the Respondent submitted that evidence which is uncontested needs or requires minimum proof relying on the cases of Nwabuoku V. Otti (1961) All NWLR 216, Faseun V. Pharco Nigeria Ltd (1965) 2 All NCR 216 and S.137(l) of the Evidence Act.
On Exhibit I, he submitted that the best document that can be tendered is the original of that document and that since Exhibit I tendered is the original certificate of occupancy, it was properly admitted by the court below citing the case of Daggash V. Bulana (2004) All FWLR (pt 212) 1666 at 1717 para G – C. He opined further that the argument on the Kaduna State Local Government Certificate of Occupancy by the Appellant is not tenable as can be seen clearly that the issuing Local Government of the certificate of occupancy is the Kachia Local Government of Kaduna State.
It was his further contention that Exhibits 2 and 3 are sales agreements and are not caught by section 15 of the Land Registration Law of Kaduna State as sales agreements and leases are exempted therefrom. Also that even if Exhibits 2 and 3 are caught by section 15 of the said law, the Appellant failed to lead evidence in rebuttal of the root of title of the Respondent. As for Exhibit 7, he submitted that notice was given to the Appellant to produce the original at the trial which he failed to do; then the Respondent had no choice than to tender the copy he had. Also, the Respondent tendered Exhibits 4, 5, and 6 because the Appellant failed to produce the originals in spite of notice to produce served on him. The Appellant has no reason to complain in the circumstance, he concluded. He urged this court to resolve this issue against the Appellant.
In considering this issue, I need to restate the law that there are five ways of proving title to land even though none of the parties made reference to this in their briefs. These ways are as follows:-
(i). By traditional evidence; or
(ii). By document of title; or
(iii). By various acts of ownership numerous and positive and extending over a length of time as to warrant the presumption of ownership; or
(iv). By acts of long enjoyment and possession of the land; or
(v). By proof of possession of adjacent land or connected land which renders it probable that he who is the owner of such adjacent land would in addition be the owner of the disputed land.
See Idundun V. Okumagba (1976) G – 10 SC 227, Ogunleye V. Oyewole, (2000) 14 NWLR (pt 687) 290 at 306 F – N and Alhaji Bukar Mulima V. Hajja Gambo Goniran & 3 Ors (2004) All FWLR (pt 228) 751 at 784 F – H. Clearly, the parties in this case were entitled to prove their title to the property through any of the ways stated above. In this case, only the Respondent led evidence in proof of his title at the court below. The Appellant did not contest the suit at the lower court. That notwithstanding, the Respondent was duty bound to lead credible evidence to prove her case as failure to do so would not entitle her to judgment.
Also where evidence led before a court is credible and unchallenged or uncontroverted the court should act on same. Nevertheless, it does not follow that where the defendant has not given evidence, every piece of evidence which cannot satisfy the standard of proof by preponderance of evidence has to be accepted by the court. See Omoregbu Vs Lawani (1981) 3 S.C 108, Oduola V. Coker (1981) 5 SC 197 and Lawan V. Afani Continental Co. Nig. Ltd (2002) 2 NWLR (pt 572) 555.
In the instant appeal, the Appellant in his brief challenges the admissibility of Exhibit I, an original copy of certificate of occupancy. The record of proceedings at page 41 indicates that the said certificate of occupancy was tendered through the PW1 the man who sold the land to the Respondent.
There is no doubt that the certificate of occupancy is a public document, and a court is expected, at all proceedings before it, to admit and act only on evidence which is admissible in law. Is an original copy of certificate of occupancy admissible in law? The issue of admissibility of a document is governed by the Evidence Act and the relevance of the document to the subject of the suit. By section 93 of the Evidence Act, proof of documents including a certificate of occupancy can be either by primary evidence or by secondary evidence. Section 94(1) of the said Act defines primary evidence as “the document itself produced for the inspection of that court.” Secondary evidence on the other hand is defined in section 95 of the Evidence Act to include:-
(a) Certified copies given under the provisions hereinafter contained.
(b) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.
(c) Copies made from or compared with the original.
(d) Counterparts of documents as against the parties who did not execute them.
(e) Oral accounts of the contents of a document given by some person who has himself seen it.
Thus, a communal reading of sections 91(1)(a), 93, 94(1), 95, 96, 97(l)(e) and 112 of the Evidence Act cap 112, Laws of the Federation of Nigeria, vol. 8 1990, clearly shows and establishes that the contents of public documents can be proved by producing the originals themselves for the court to inspect as primary evidence provided the maker of the statements in the documents who has personal knowledge of the matters dealt with by the statement is called as a witness, or by producing a certified true copy of the document. I have not seen any section of the Evidence Act which provides that no primary evidence of a public document is admissible. Yes, the law allows certified true copies to be admitted but it does not forbid the admissibility of original copies provided section 91(1) of the Evidence Act is complied with. See Daggash V. Bulama (2004) 14 NWLR (pt 892) 144, Anatogu V. Iweka II (1995) 8 NWLR (pt 415) 547, Obadina V. Ambrose (1969) 1 NWLR 25.
The case of Lawson V. Afani Continental Co. Nig Ltd (Supra) relied upon by the learned counsel by the Appellant to say that an original copy of a public document is in admissible, with due respect, is inapplicable as the law on the matter is very clear. But for the necessity to preserve public documents and not allow them to be incessantly taken to court, the law would have insisted that primary evidence, being the best evidence, should always be tendered. But the law makes room for certified true copies to be tendered as secondary evidence where it may be difficult to prove the point by primary evidence. The law does not shut out primary evidence in the circumstance.
There is no doubt that Exhibit I was pleaded by the Respondent, it is relevant to the case in issue and by any standard, it is admissible in law. Thus, it partially met the criteria for admissibility of such a document. The only snag about it is that section 91(1) of the Evidence Act was not complied with before it was tendered. It is trite that where evidence has been improperly received by the trial court as in this case, it is the duty of the appellate court to reject such evidence and decide the case on legal evidence even when no objection has been raised. As is the case here, Exhibit I having been improperly admitted, having been tendered by a person unauthorized in law and no foundation having been laid, it is hereby expunged from the record.
As regards Exhibits 2 and 3, they are clearly instruments affecting land being documents purporting to transfer interest in land. By virtue of section 3(2) of the Land Registration Law Cap, 85 Laws of Kaduna State, 1991, all instruments, including powers of attorney affecting land must be registered. The section provides that all documents transferring or affecting interests in land are registrable and should be registered. In the instant case, Exhibits 2 and 3 purport to transfer interest in land. They are for that reason registrable instruments by virtue of section 3(2) of the Land Registration Law aforesaid and ought to have been registered. There is no indication, that they were so registered.
By section 15 of the Land Registration Law of Kaduna State, a registrable instrument which is not registered cannot be pleaded and, if it is pleaded, it is not receivable in evidence. Where such a document is inadvertently admitted, it should be expunged. See Registered Trustee of MMHC Vs Adeagbo (1992) 2 NWLR (pt 226) 690, Eso V. Adeyemi (1994) 4 NWLR (pt 340) 558, Lawson V. Agani Continental Co. Ltd (supra). I have no hesitation in rejecting the two documents having not been registered. I however, disagree with the learned counsel for the Appellant on Exhibit 7. It is a mere letter and does not qualify as a registrable instrument.
Exhibits 4, 5 and 6 are photocopies of Chukun Local Government Area of Kaduna State Certificate of Occupancy, Kaduna State Urban Planning and Development Authority Report and recommendation for conversion of certificate of occupancy and Report of Kaduna State Winding up Committee on abandoned property respectively. There is no indication that these documents were certified at all.
It is easy to identify a certified document. By virtue of section 111(1) of the Evidence Act a certificate written at the foot of a certified true copy of a public document shall be dated, and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal. It is necessary to authenticate public documents by a designated officer so as to enable its admissibility and also to obviate the necessity of calling the officials to come to testify to the genuiness of copies made from original documents or records of a public nature and also to preserve those original documents or records from being removed from their proper place of custody through requests that they be tendered in court. See Anyakoro V. Obiakor (1990) 2 NWLR (pt 130) 52. Accordingly, I agree with learned counsel for the Appellant that they were inappropriately admitted and ought to be expunge from the record. See Pa John Umogbai Vs Pa Ifenera Aiyemhoba (2002) FWLR (pt 132) 192 at 198 B – D.
Having expunged these documents, is there any evidence left to sustain the claim of the Respondent? Quite unfortunately, the Appellant’s counsel did not consider other evidence before the court in this regard. He felt that if the documents are expunged, the matter will end there. This has turned out not to be the case as there are other uncontroverted evidence adduced by the Respondent which can still sustain her claim. I had earlier stated the five ways which a plaintiff can prove title to land.
The Respondent had, apart from showing acts of ownership over a period of time, for instance acts of clearing and block work on the uncompleted building, he was able to trace his root of title to PW1 who in turn traced his root of title to a Gwari man. This evidence was never challenged nor was it controverted. The Appellant has no answer to the evidence adduced by the Respondent in the matter.
It is trite that where the evidence of the plaintiff is not controverted or contradicted by a defendant in evidence, unless that evidence is potently incredible, the trial court ought to and should regard the matter to be proved by evidence of the plaintiff. See Okoebor Vs Police Council (2003) FWLR (pt 104) 189, (2003) 5 SCNJ 52.
For me, I think that quite apart from the documents expunged as they were inappropriately admitted, there were abundant unchallenged and uncontroverted evidence which the court below relied upon to enter judgment for the Respondent. The Appellant has therefore not been able to convince this court that issue one should be resolved in his favour. I so hold.
On the second issue which attacks the award of N100,000.00 against the Appellant as damages for trespass, the learned counsel for the Appellant submitted that since the Appellant bought this land in dispute and paid money, took possession and completed same, he had acquired some element of title to the property and as such he was not liable for trespass and that the learned trial Judge erred in declaring him a trespasser citing and relying on the case of Baba Nasiru & Ors Vs Mohammed Abubakar (1997) 4 NWLR (pt 497) 32 at 46.
Secondly, that it is settled law, that in an action for Damages for trespass to land, it is not enough for the court to simply award Damages for trespass without giving or advancing reasons as to how it arrived at what amounted to reasonable damage. That since the trial court did not advance reasons for the award of damages, same was therefore arbitrary and ought to be set aside. He relies on the cases of Umunna Vs Okwuraiwe (1978) 6 – 8 SC I, Joseph Onwu & Ors Vs Ezekiel Nka (1996) 7 NWLR (pt 458) 1 at 20.
Finally, that even where trespass to land is established, it, at best, attracts only nominal or minimal damages and not the excessive and arbitrary award that was made by the court below. He urged the court to set aside this award and resolve this issue in favour of the Appellant.
As would be expected, the learned counsel for the Respondent submitted that it is settled that once title has been proved, the person having title to the land is presumed to be in lawful possession and the other does not acquire possession by his act of trespass relying on the case of Okoko V. Dakolo (2006) FWLR (pt 336) 201 at 227, C – D. He further submitted that, the only unchallenged evidence shows that the Respondent was in possession and that the Appellant had trespassed without lawful justification and that the court below had no alternative than to give judgment in favour of the Respondent.
Finally, he submitted that action in trespass is actionable per se and since the Appellant had not by evidence justified his presence in the Respondent’s property, there was no way the trial court could have put the two sides of the case on an imaginary scale to weigh the issue of damages.
That there is evidence that the Appellant had altered the state of the property and the damage claimed by the Respondent was N500,000.00 but that the court reduced the award to N100,000.00 only. He urged this court to hold that this award was in order and that this issue be resolved against the Appellant.
A person is said to commit trespass to land if he ordinarily and intentionally and without consent or privilege, right, lawful authority or an express or implied invitation, enters into another’s property.
Generally, since a claim for trespass is rooted in exclusive possession, all that the plaintiff needs to prove is that he has exclusive possession, or he has the right to such possession of the land in dispute. But once the defendant claims to be the owner of the land in dispute, title to it is put in issue and in order to succeed, the plaintiff must show a better title than that of the defendant. See Okoko V. Dakolo (2006) 14 NWLR (pt 1000) 401, Amakor V. Obiefuna (1974) 3 SC 67, Makinde V. Akinwale (2000) 2 NWLR (pt 645) 435, Okafor V. Idigo (1984) 1 SCNLR 481.
It is therefore quite clear that once the plaintiff in the case is able to prove his title, he is presumed to be in lawful possession and the other party does not acquire possession by his acts of trespass no matter how deceptive. See Akinterinwa V. Oladunnoye (2000) 6 NWLR (pt 659) 92, Ayinla V. Sijuwola (1984) 1 SCNL 410.
In the instant appeal, the Respondent as PW2 at the court below gave evidence to the effect that he bought this property from the pw1 who bought it from one Gwari man. There was an uncompleted building which he made some block works up to roofing stage. He later noticed that the Appellant had trespassed into the property. Unfortunately the Appellant has not made any effort to let us know his own side of the story. I think the court below had no choice than to believe and act on the uncontroverted and uncontradicted evidence of the Respondent. The Respondent showed quite clearly that she was in lawful possession of the land before the Appellant entered into it without lawful excuse at least he has not made his own side of the story known. Having kept his own side of the case within his knowledge, I wonder what the Appellant wants this court to do for him. There is no complaint that he was not given opportunity to defend this case at the court below. He simply neglected to defend the matter at the lower court only to put up this frantic but unimpressive attempt to reverse the judgment of the trial court.
In awarding general damages, it is within the discretion of a court to make its own assessment, albeit such an exercise must be related to the evidence. See Okoko V. Dakolo (supra). It has been held by the Supreme Court in Umunna V. Animudu (1978) 6 – 10 SC 1, that where the trespass complained of is devoid of aggravating circumstances, it can only attract nominal damages and that an appellate court can reduce the amount of damages awarded in appropriate circumstances. In the instant case, the Respondent complained that the Appellant had tempered with the property by making some improvements on it. The respondent did not however show disapproval of those changes. Rather, it appears to me that he appreciates the changes and will benefit from them. The uncompleted building has been roofed and even painted. It is my opinion that only nominal damages should have been awarded. However, there is no ground of appeal which states that the award was excessive. Rather, it was that there should be no award at all. I hold that the court below was right to award damages against the Appellant but having made huge improvements on the property, I shall reduce the damages awarded from N100,000.00 to N20,000.00 only. Quite apart from the reduction in the amount of damages awarded, I resolve this issue in favour of the Respondent.
On the whole, having resolved the two issues against the Appellant, this appeal lacks merit and is hereby dismissed. I affirm the judgment of the court below and order the Appellant to pay costs of N20,000.00 to the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead Judgment written by my learned brother OKORO, JCA in this appeal. As usual, he has proficiently considered and ably resolved the two (2) issues that were submitted for determination in accordance with applicable principles of law. No point of law relevant to the issues was left by his Lordship for further discuss and decision in the appeal.
I am in complete agreement with the views and resolutions of the issues and join in dismissing the appeal for all the reasons set out in the lead judgment which I hereby adopt.
In addition I abide by the amount awarded in damages for trespass.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: My learned brother, J. I. Okoro, J.C.A., had succinctly and explicitly dealt with the issues formulated by the Appellant in the leading judgment in this appeal. I am in complete agreement with him that this appeal lacks merit and ought to be dismissed.
I, also, dismiss the appeal and affirm the judgment of the trial Court. I, too, award the costs N20,000 against the Appellant in favour of the Respondent.
Appearances
E. Y. Kurah Esq. with J.B. Amos Esq. and P. Philemon Esq.For Appellant
AND
Lami Bassagi (Miss)For Respondent
