NIGERIA LIQUIFIED NATURAL GAS CO. LTD V. EDWARD EMMANUEL HART
(2013)LCN/5918(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/PH/682/2008
RATIO
LAND LAW: HOW TO ESTABLISH THE PRECISE AREA OF A LAND IN DISPUTE
Where the identity of a land in dispute is an issue before a court, the resolution of that issue is a sine qua non to a very fair adjudication of that matter. Also, in that regard a court must consider whether in any particular case it is essential for the proper trial of the action for the identity of the land in dispute to be ascertained, settled and resolved. The most common and easiest way of establishing the precise area of land in, dispute is by the production of the survey plan of that land. See SOKPUI V. AGBAZO (1951) 13 WACA 241 and DANIEL IBULUYA V. DIKIBO (1976) 6 SC 97.PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
TRESPASS: BURDEN OR ONUS OF PROOF IN TRESPASS MATTERS
Necessarily connected to this, is that where one in possession of land is said to be a trespasser, the onus is on the person asserting that allegation to establish that he has a better title to the land than the person in possession. This settled principle of law has remained a shining light in the adjudication of matters involving dispute on title to land. See AMAKOR V. OBIEFUNA (1974) 3 SC 67.PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
EVIDENCE: A WITNESS WHO GIVES CONFLICTING FACTS IS NOT CREDIBLE
It is the law in this country that a witness who gives materially conflicting versions of a crucial fact in issue in a trial is totally unworthy of credibility. It is also correct as argued by learned counsel Mr. Adango that once a witness is found unreliable or untruthful by a court his evidence becomes completely destroyed. The Supreme Court decision in CIVIL DESIGN CONST. (NIG.) Ltd. V. SCOA NIGERIA LTD. (2007) 6 NWLR (Pt. 1030) 300 as per Onnoghen, JSC at 366F, is compelling and relevant on this point.PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
MUHAMMAD LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
NIGERIA LIQUIFIED NATURAL GAS CO. LTD. Appellant(s)
AND
EDWARD EMMANUEL HART Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Rivers State High Court, sitting in Port Harcourt delivered on 26th July, 2007 in Suit No. PHC/1698/2001. The Respondent, as the claimant at the lower court, sought for the following reliefs. They are:-
“(i) A declaration that the claimant is entitled to the customary right of occupancy in and over all that piece of land forming part of the land known traditionally as OZUASAWO lying and being at Akie-Ama village in Bonny.
(ii) The sum of N5,000,000.00 being damages for trespass committed by the Defendant on the said land in dispute.
(iii) An order of perpetual injunction restraining the defendant either by itself or by its servants, agents, or privies from further entering, encroaching, developing, building or constructing any structure of whatsoever description or committing any act of trespass or waste in any manner whatsoever on the land in dispute.”
The Appellant, as the defendant, joined issues with the Respondent/Claimant, while denying the claim, and maintained that the Rivers State Government put it into possession of the land in dispute. The Appellant/Defendant also contended that the land in dispute formed part of its Liquified Natural Gas Project in Bonny at the Rivers state Government owned “Coconut Estate”.
Issues having been duly joined the matter went to trial. At the trial, the court received both oral and documentary evidence as well as the addresses of respective learned counsel. In its judgment, the lower court upheld the claim of the Respondent/Claimant after having found that he had proved his claim against the Appellant. It went further to grant the declaration sought, and ordered for compensation in the sum of N5,000,000.00 in lieu of an order for a perpetual injunction etc.
The Appellant is dissatisfied with this decision and appealed to this court in a notice of appeal dated 2/08/2007 but filed on 7/08/2007. This notice contains 6 grounds of appeal with very copious particulars. To argue the appeal, the appellant filed a brief of argument dated 18th November, 2009. In response the Respondent filed a brief of argument dated 20th January, 2010 which was deemed properly filed and served on 22/03/11. In a further effort the appellant filed a reply brief on 22/03/11.
At the hearing of the appeal before us on 14th November, 2012,respective learned counsel took turns to adopt and rely on their briefs. While learned counsel to the Appellant urged on us to allow the appeal and set aside the judgment of the lower court, learned counsel to the Respondent urged on us to dismiss the appeal and affirm the judgment of the lower court.
From the grounds of appeal, learned counsel to the Appellant identified and formulated the following 4 issues for the determination of this appeal. They are:-
“(1) Whether the Respondent is the owner in possession entitled to customary right of occupancy of the land in dispute?
(2) Whether the land in dispute belonged to the Rivers State Government who gave it to the Appellant for the Liquefied Natural Gas project?
(3) Whether the appellant was liable to the Respondent in trespass?
(4) Whether the trial Court can grant a relief on N5m compensation and order for execution of sub-Assignment not claimed by the Respondent?”
From the Respondent’s brief of argument, learned counsel formulated only 2 issues for the determination of this appeal. He took his time to tie particular issues to specific ground or grounds of appeal. They are as follows:-
“(i) Whether the learned trial Chief Judge was right when he held that on the preponderance of evidence, the plaintiff/respondent had proved the identity of the land in dispute and that he is the owner in possession thereof and therefore entitled to the judgment of the Honourable Court? (Grounds i, ii, iii, iv, viii and ix of the grounds of appeal).
(ii) Whether the learned trial Chief Judge was right when he ordered the defendant/appellant to pay the plaintiff/respondent the sum of N5,000,000.00 (Five Million Naira) as compensation for the acquisition of the land in dispute in lieu of granting an order of perpetual injunction in favour of the plaintiff/respondent in whom title had been decreed? (GROUND V OF GROUNDS OF APPEAL)
The claim of the Respondent for a declaration damages for trespass and perpetual injunction is underscored by his principal averment and assertion that the land in dispute is situated at Akie-ama village, and belongs to the Allaputa Chieftaincy House of Bonny and same was granted to him some time in February, 1991 by Chief N.Y. Allaputa for a fee of N40,000 (Forty Thousand Naira), It is also the case of the Respondent that the land in dispute was granted and allocated to him for the purpose of a residential building and that this allocation was made, by the Head of the Allaputa family with the consent and concurrence of the principal members thereof and in that behalf. That grant, he also assets, conferred on him the right to exclusive possession with full rights of ownership thereto.
As stated above the Appellant denied the title of the Respondent and contested his claim via its paragraphs 8(h) and 8(i) of the statement of defence where it emphasized that the Rivers State Government put in possession of the land in dispute. Further to this, the Appellant also asserted that it acquired land and paid purchase price to Chief N.Y. Allaputa, acting for himself and behalf of the Allaputa House and for which a Deed of conveyance dated 15/3/96 was executed.
I have considered the issues formulated by the parties in this appeal and I am fully satisfied that the 4 issues formulated by the Appellant for the determination of this appeal sufficiently cover its grievance and complaints against the judgment of the lower court and as contained in the grounds of appeal. I will therefore proceed to consider them to decide this appeal.
In arguing the first issue, learned counsel to the Appellant Mr. C.M. Nwaka, referred to the averments in paragraphs 5, 8(h) and 9(b) of the statement of defence and part of the oral evidence of DW1 and DW2 as well as Exh. D2 and argued that the Respondent did not challenge the averments and could not also challenge the oral evidence in their support that the land in dispute belonged to the Rivers State Government who granted it to the Appellant; and to which it acquired possession for the LNG Project at Bonny. While quoting extensively and copiously from the decision of the Supreme Court in the case of BALOGUN v. EGBA ONIKOLOBO COMMUNITY BANK (NIG.) LTD, (2007) 5 NWLR (Pt. 1028) 584 at 660 E-F, learned counsel Mr. Nwaka submitted that having not challenged those averments in the statement of defence and the oral and documentary evidence adduced to prove them, the Respondent is deemed to have willingly admitted the claim and title of the Appellant to the land in dispute. According to learned counsel, Mr. Nwaka, despite the unchallenged pleadings and clear and uncontradicted evidence in support, the lower court failed to consider and hold that the land in dispute was part of government land granted to the Appellant and which it acquired and occupied for the LNG Project at Bonny, Rivers State. Against this background, learned counsel submitted that this failure to consider a key issue in the case of the Appellant occasioned a miscarriage of justice and robbed the judgment in the lower court the credit of a dispassionate consideration of all the issues properly raised and put across by the Appellant. Upon this, learned counsel urged on this court to resolve this issue in favour of the Appellant.
In what I consider to be his answer to the above arguments, learned counsel to the Respondent Mr. Z. Adango, began with an explanation that it is a settled principle of law and practice that it is the trial court that has the primary function of appraising and ascribing probative value to oral evidence presented by parties in any trial proceedings before it. He also added that it is also part of the primary function of a trial court to place the evidence before it on an imaginary scale with a view to determining in favour of which of the parties the balance tilts and to generally make findings and logical inferences and conclusions on those facts on the basis of the relevant and applicable principles of law. He supported these explanations with the decisions in the cases of; ANYAWU V. UZOUWUAKA (2009) 13 NWLR (PT. 1159) 445 at 464 – 465 and 486 – 487 and OLALOMI INDUSTRIES LTD. NIDB LTD. (2009) 16 NWLR (Pt. 1167) 266 at 295 G – H.
Having settled this yardstick, learned counsel Mr. Adango referred specifically to the oral evidence of DW1 and pointed out that the lower court found and held that his evidence on the crucial issue of the identity of the land in dispute was highly unreliable. He referred to the findings of the lower court at pages 161 to 162 of the record of appeal where DW1 was found not to be a witness of truth. Learned Counsel Mr. Adango added further that this finding against the credibility of DW1 as a witness of truth must be treated as a question peculiarly within the province of the lower court, the learned trial Chief Judge, having heard and watched the demeanour of DW1. He accordingly submitted that this finding, unless otherwise shown to be wrong or unwarranted, must be regarded as sacrosanct. He referred to FOLORUNSHO V. ADEYEMI (1975) 1 NMLR 128 at 132 – 133 and SANNI V. ADEMILUYI (2003) 3 NWLR (Pt. 807) 381 at 396 B – D and 405 D – F and urged on this court to hold that the finding of the lower court that DW1 was an untruthful witness is neither arbitrary nor inconsistent in the circumstances of this matter. Learned Counsel did not say anything worthy of note with respect of the oral evidence of DW2 or Exhibit D2.
In resolving this issue it is pertinent to underscore and put the evidence of the Claimant/Respondent and those of DW1 and DW2 as well as Exhibit P1 tendered by the Respondent and Exh. D2 tendered on behalf of the Appellant. The background to this exercise is that in civil cases, the person who asserts must prove his case and make it strong enough to support his pleadings, Should he fail to do so, his case will remain unproved, however elegant or impeccable his pleadings were.
One of the methods of proving ownership of land to necessitate the court to make a declaration of title in favour of a claimant is by the production of document of title which must be duly authenticated. In the instant matter, the Appellant sought to rely on Exh. D2 to support its title while the Respondent sought to rely Exhibits P1 and P4 in that behalf. A careful consideration of these documents appear to me that there is some real divergent understanding of the identity of the land in dispute. Where the identity of a land in dispute is an issue before a court, the resolution of that issue is a sine qua non to a very fair adjudication of that matter. Also, in that regard a court must consider whether in any particular case it is essential for the proper trial of the action for the identity of the land in dispute to be ascertained, settled and resolved. The most common and easiest way of establishing the precise area of land in, dispute is by the production of the survey plan of that land. See SOKPUI V. AGBAZO (1951) 13 WACA 241 and DANIEL IBULUYA V. DIKIBO (1976) 6 SC 97. Necessarily connected to this, is that where one in possession of land is said to be a trespasser, the onus is on the person asserting that allegation to establish that he has a better title to the land than the person in possession. This settled principle of law has remained a shining light in the adjudication of matters involving dispute on title to land. See AMAKOR V. OBIEFUNA (1974) 3 SC 67.
With respect to the settled facts in this matter, there is a very clear indication that the Appellant is in possession of larger area of land which includes the land which the Respondent claims that it belongs to him. There are indications also that the appellant had made significant improvements of the land by way of sand filling, wire fencing, sinking of water wells and construction of an access road etc. The Respondent also claims to have constructed a residential building after sand filling of the surrounding swamp to his land etc.
I have carefully read and fully considered the evidence of DW1 alongside that of PW3 (as set out at pages 98 to 100 of the record). I have also considered pages 161 – 162of the record where the lower court found DW1 not to be a witness of truth and therefore unreliable. It is good to underscore and explain that it is the primary function of a trial court to hear evidence, evaluate it and to believe or disbelieve witnesses who testified before it as well as to decide the merits of a case based on its findings on the quality, relevance and strength of the evidence adduced in a trial.
I fully agree with the submission of learned counsel Mr. Adango for the Respondent that the evidence of DW1 on the crucial issue of the proper identity of the land in dispute must be seen as grossly misleading and manifestly unreliable for having emanated from a witness that was, in my view, rightly discredited. It is the law in this country that a witness who gives materially conflicting versions of a crucial fact in issue in a trial is totally unworthy of credibility. It is also correct as argued by learned counsel Mr. Adango that once a witness is found unreliable or untruthful by a court his evidence becomes completely destroyed. The Supreme Court decision in CIVIL DESIGN CONST. (NIG.) Ltd. V. SCOA NIGERIA LTD. (2007) 6 NWLR (Pt. 1030) 300 as per Onnoghen, JSC at 366F, is compelling and relevant on this point.
Exh. D2 was tendered and admitted in evidence through DW2. Also, as part of his oral evidence, DW2 told the lower court thus:-
“The acquisition processes by N.L.N.G. were done in 1996. I said the land belonged to the Rivers State Government and was known as Coconut Estate. When you want to acquire government land, you deal with government. I agree that this deed in our favour is between N.L.N.G. and Akie-ama community. We consulted fully with the Rivers State Government through the Ministry of Agriculture. Having been seconded to N.L.N.G. I was obliged to carry out my job to ensure that things were done well. I know who owns the land. It was owned by the Rivers State Government. We consulted with the Lands and Housing Ministry. A survey was carried out by the Ministry of Lands and Housing, Ministry of Agriculture and the N.L.N.G (by me). After these the Ministry agreed and permitted N.L.N.G. to use the land for its project. After these N.L.N.G. still consulted the community. It was established that the land was acquired in principle from the Akie-ama community. We paid for the two portions of land on exhibit – D2. It is not a family land; it was acquired from the Akie-ama community.” (See pages 112 to 113 of the record of appeal).
I have considered this evidence of DW2 and in the absence of any oral or documentary evidence from any of the officials of the Rivers State Government mentioned in the evidence of DW2, I am unable to see any credible evidence to uphold the submission of learned counsel Mr. Nwaka for the Appellant that the land in dispute belonged to the Rivers State Government. What the evidence on record clearly shows is an ambivalence on the part of the Appellant. In one breathe the Appellant claims that the land in dispute formed part of what is called “Coconut Estate” belonging to Rivers State Government and which land was demised to it for its LNG Project in Bonny and in another breathe, it maintains that it acquired the land and paid for it from the Akie-Ama Community. Because of this blowing hot and cold in one breath by the Appellant, I am unable to resolve this issue in favour of the Appellant.
In arguing his issue 2, learned Counsel Mr. Nwaka began by challenging the findings of the lower court that the land in dispute belonged to the Respondent. He, upon this challenge, maintained that the pleadings and the evidence do not support the conclusion of the lower court that the Respondent is the owner in possession of the land in dispute. Against this, learned counsel argued that the lower court ought not to have found that the Appellant committed acts of trespass or made liable to pay compensation to the Respondent. Many more other submissions and inferences were made by learned counsel by using the; severely discredited evidence of DW1. I am duty bound to discountenance all those arguments and submissions because of my view and decision that DW1 must remain a tainted and discredited witness whose evidence remained worthless and of no value or assistance to the resolution of the issue as to the identity of the land in dispute.
In his attempt to settle this issue, learned Counsel to the Respondent Mr. Adango, began by conceding that the initial burden of proof is on the party who asserts the existence of a fact and not on he who denies same. He was however quick to add further and explain that this initial burden is never static because with respect to particular facts it shifts to the party against whom judgment would be given if no further evidence were adduced in respect of those facts. He, in other words, explained more clearly, that once that initial burden is discharged by the production of credible evidence that would satisfy the Court of the existence of those facts, then the burden shifts to the adverse party against whom judgment would be given against if no more evidence were to be adduced. He referred to it as the secondary or evidentiary burden of proof in civil cases. He supported these explanations with the cases of TEWOGBADE V. AKANDE (1968) NMLR 404 at 407 ABU V. MOLOKWU (2003) 9 NWLR (Pt.825) 265 at 288 A – B and 289 D – E as well as ODUKWE v. OGUNBIYI (1998) SCNJ 102 at 117.
As pointed out above, issue was fully joined on the identity of the land in dispute. He was quick to add that the size of the land in dispute was not in issue. Against this, learned Counsel highlighted Exhibits P1 and P4 as describing the land as OZU – Asawo, Akie – ama.
In my effort to resolve this issue1,I find the oral evidence of the Respondent at pages 94 and 95 of the record immensely helpful. At page 94, the Respondent told the court that he knew “Coconut Estate” and denied that it covered the land in dispute. Also, at page 95, the Respondent maintained that Chief Allaputa (DW1) never asked him to come for direction if he was no longer sure of the location of the land given to him.
According to the decision of the Supreme Court in PIANO V. TONALO & ORS. (1976) 12 SC 31, in an action for declaration of title to land, the onus is on the plaintiff to read strong and positive evidence to establish his case for such a declaration. In order to prove ownership, he must show satisfactorily which of the 5 ways of proving title to land he relies on. It is also the law that where a plaintiff relies on a known root of title he must prove that root of title and cannot rely on acts of possession simpliciter in proof thereof. See NGENE V. CHIKE IGBO (2000) 4 NWLR (Pt 651) 131 at 142, The courts remain vigilant to see that a plaintiff only succeeds on the strength of his own case and not on the weakness of the defendant’s case, being absolutely mindful of the decisions in KODILINYE V. ODU (1935) 2 WACA 336 and BELLO V. EWEKA (1981) 1 SC 101.
With respect to the facts and circumstances of this appeal, the Respondent has placed heavy reliance on his oral testimony and Exhibits P1 and P4 he tendered in evidence as well as the oral testimony of PW3. The lower court, in my view, and rightly so, I believe used part of the evidence of PW3 to discredit the evidence of DW1. It is very curious how it remains so. In response to cross examination by learned Counsel Mr. Nwaka for the Appellant/Defendant, PW3 told the lower Court thus:-
“I said Chief N.Y. Allaputa had no authority to self the family land alone. A Chief could only do so in conjunction with the heads of the five units. These heads need not sign, but they must be present. Chief N.Y. Allaputa sold land in 1991 to the Plaintiff, and the unit heads were consulted. The land was sold to the Plaintiff by chief N.Y. Allaputa in conjunction with the unit heads’ As the Chairman I saw the agreement they made. I made contacts to confirm the safe too. We don’t merely give one an “authority to build”, we sell land to the person. Exhibit P1 is not the document given to the Plaintiff. I have a photocopy of sales agreement entered into by the Allaputa house. I said we have removed Chief N.Y. Allaputa.” (Underlining mine for emphasis). (See pages 99 to 100 of the record).
If there was any ambiguity or lack of clarity in this evidence of PW3, which I believe there was, learned Counsel to the Respondent/Claimant failed to utilize the opportunity of a re-examination to settle the issue and put the facts straight as to the root of title contained in Exh. P1 and which was being heavily relied upon by the Respondent. I find this evidence of PW3 as fatal to the root of title of the Respondent. To the extent that Exh. P4 was purportedly made and remained dependant and Exh. P1, I strongly believe that it totally lacked foundation upon which it can stand and as to be helpful to a just determination of this issue. The learned trial Chief Judge faired to make any specific finding on this piece of evidence in the oral testimony of PW3.
The decision of a trial court on facts is presumed to be correct because the duty of appraising evidence given at the trial is pre-eminently that of the trial court that saw and heard the witnesses and it is also the right of the court to ascribe values to such evidence. Where this exercise was properly and impeccably done, this court would not interfere with any such findings of fact. Where however a finding of a trial court, is seen to have been manifestly perverse or wrong, this court is duty bound to interfere and give a proper evaluation of the evidence on record. In my view the failure of the lower court to evaluate and make a finding on this damaging and fatal evidence to the case of the Respondent in the oral evidence of PW3 is improper in the circumstances of this appeal.
In its judgment at page 163 of the record, the lower court decided as follows: –
“I therefore believe the claimant that the land evidence in exhibit P1 as the parcel granted him by the Allaputa House of Bonny under the hand of Chief Nathaniel Yekorogha Allaputa in 1991 measuring 50 feet by 100 feet is the same piece of land shown by the portions marked yellow and red respectively on the survey plan exhibit P4.” (See lines 1 – 6 at page 163 of record of appeal).
Having regards to the evidence of PW3 while under cross-examination, this finding of the lower court must, in my view, remain faulty and without foundation. To that extent, it is liable to being set aside and I accordingly so do.
This decision now having been set aside for lack of foundation,I am of the view that the Respondent has failed to make a strong case for a declaration of title to land. It goes without saying that the Respondent has failed to identify the land in dispute and also failed to provide credible evidence on his root of title.
Having come to the above conclusion on the failure of the Respondent to sufficiently identify the land in dispute and to prove a strong root of title, I hereby hold that the Respondent cannot be granted any declaration of title and all the other reliefs he claimed in this action. To this extent, I am fully satisfied that this issue No. 2 in the Appellant’s brief of argument must be resolved against the Respondent.
Issue 2 is very crucial in this appeal. And because of its cornerstone effect, its resolution one way or another necessarily has a direct impact on the resolution of issues 3 and 4. In consequence of my views and decision on issue 2 above, issues 3 and 4 must also be resolved against the Respondent. This appeal is hereby allowed and the entire judgment of the lower court delivered on 26th July, 2007 in Suit No. PHC/1698/2001 is hereby set aside. The suit is accordingly hereby dismissed. I make no order for costs.
MOHAMMED LADAN TSAMIYA, J.C.A: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.; I had before now read the judgment delivered by my learned brother ALI ABUBAKAR BABANDI GUMEL JCA. I agree with his reasonings and conclusions.
My learned brother has admirably resolved all the issues canvassed in this appeal in such a way that I have nothing to add.
Appearances
Mr. C.M. NwakaFor Appellant
AND
Mr. Z. AdangoFor Respondent
