CITEC INTERNATIONAL ESTATES LTD v. KOLAWOLE AKANBI YUSUF & ANOR (2016)

CITEC INTERNATIONAL ESTATES LTD v. KOLAWOLE AKANBI YUSUF & ANOR

(2016)LCN/8313(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/A/630/2012

RATIO

PRACTICE AND PROCEDURE: WHETHER ACTS OR OMISSIONS ARISING FROM THE NON-SIGNING OR IRREGULARLY ENDORSED WRITS OR SUMMON AFFECTS THE JURISDICTION OF THE COURT

This Court had cause to earlier hold that errors or acts of omissions arising from the non-signing or irregularly endorsed writs or summons are mere procedural irregularities which do not affect the jurisdiction of the Court; See SHUAIBU v. MUAZU (2007) 7 NWLR (Pt.1033) 271.
In S.I.V. LTD V. AFRO SHELTERS LTD (2010) 1 NWLR Part 1175 at 209 it was held:
”the fact that the registrar did not sign in the column meant for registrar but nevertheless had the writ stamped undefended under his signature shows and attests that all that is necessary the plaintiff had done, any omission is that of the Court or its registry and the penalty cannot be visited upon an innocent plaintiff. Therefore, any irregularity as that error or omission of the registrar does not render the writ a nullity since the legal presumption of regularity under Section 150 of the Evidence Act would be activated in favour of the plaintiff It may sound cliche but it is trite that justice is no justice when it is only so technically, substantial justice on the other hand is timeless, and necessitates the acceptance of the truism that the rules of Court are made for the Court and not the Court for the rules. The Supreme Court had this scenario in mind when it held that: It is settled that rules of Court or rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and aid the Court. They are as such not to be regarded or treated as masters of the Court. Therefore the Court in applying the rules which are merely its aids should not be slavish to the said rules but should give away more regards to the interest of justice. Thus where the interest of justice requires the Court should liberal in its application observance or compliance of the rules of Court” – See UTC (NIG) LTD V. PAMOTEI (1989) 2 NWLR (PT.84) 508 AND SHELL PETROLEUM DEVELOPMENT V. AGBARA & ORS; the Supreme Court went further to hold in SPDC & ORS V. AGBARA & ORS (2015) LPELR 25987-SC that:
”It is settled law that a Court of law will not allow the provision of an enactment to be read in such a way to deny access to Court by citizens. Thus, it is not the intention of the law to deny any litigant access to justice. A rule of Courts stands to guide the Court in the conduct of its business and I must not hold as a mistress but as a hand maid. See: ONWUCHEKA V. NDIC (2002) 5 NWLR (PT.760) 371 at 393: CHRISDOM IND. CO. LTD V. AIB LTD (2002) 8 NWLR (Pt.768) 152 at 178 CD; UTC NIG. LTD V. PAMOTEI (1989) 2 NWLR (Pt.103) 244 at 296; CHIME V. CHIME (2001) 3 NWLR (Pt.701) 527 AT 553. per Muhammad, J.S.C. per. MOHAMMED MUSTAPHA, J.C.A.

PRACTICE AND PROCEDURE: WHETHER EVIDENCE OBTAINED IN CROSS EXAMINATION BUT ON FACTS NOT PLEADED IS ADMISSIBLE

That being so this Court of Appeal will not entertain any point on which no issue was joined or evidence led at the trial Court or any point which was not canvassed in the Lower Court because the Court of Appeal is not a Court of trial; see MOGAJI V. CADBURY NIGERIA LTD (1985) 7 SC 59; evidence obtained in cross examination but on facts not pleaded is inadmissible, put differently, evidence elicited in cross examination is inadmissible in as much as it is not supported by the pleading of either party, see PUNCH NIGERIA LTD V. ENYINA [2001] 17 NWLR (Pt.741) 228.
That is to say, evidence extracted under cross examination, as was the case at trial, but which was not pleaded, and upon which no issue has been joined and canvassed, goes to issue; see OKOKO V. DAKOLO (2006) 14 NWLR part 1000Â at 401. per. MOHAMMED MUSTAPHA, J.C.A.

TORT: TORT OF TRESPASS; WHAT IS NEEDED TO SUCCEED IN AN ACTION FOR TRESPASS

All that is needed to succeed in an action for trespass is exclusive possession or right to exclusive possession; and once a person is liable for trespass, he is liable to pay damages regardless of whether or not actual damage was done; seeÂ ADESANYA V. OTUEWU (1993) 1 NWLR (Pt.270) 414, ANYABUNSI V. UGWENZE (1995) 6 NWLR (Pt.401) 255. per. MOHAMMED MUSTAPHA, J.C.A.

JUSTICES:

ABDU ABOKI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

CITEC INTERNATIONAL ESTATES LTD – Appellant(s)

AND

1. KOLAWOLE AKANBI YUSUF
(Suing through his attorney Starcase Ventures Limited)
2. THE HON. MINISTER FEDERAL CAPITAL TERRITORY ADMINISTRATION – Respondent(s)

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the FCT, of the 25th September, 2012, sitting in Abuja, presided by Hon. Justice Salisu Garba.

The 1st respondent as plaintiff sought the following reliefs:
“1. An Order of perpetual Injunction restraining the defendants, their servants, agents and/or privies howsoever so described, from stopping, or interfering in any manner whatsoever, with the plaintiffs development, quiet enjoyment and peaceful possession of the res, consisting of Plot 2415 Cadastral Zone CO6 of Nbora Layout, Federal Capital Territory, Abuja.
2. The sum of N20,000,000.00 as damages for the loss incurred by the Plaintiff as a result of the Defendant’s action
3. General damages in the sum of N10,000,000.00
4. The cost of this suit including plaintiff’s counsel fees.”

The appellant filed a preliminary objection challenging the jurisdiction of the trial Court to entertain the action on the ground that the writ of summons was not properly issued; and the Court in a ruling delivered on the 26th of October, 2011 dismissed

the objections as mere irregularities and proceeded to entertain the suit.

The 1st respondent called a sole witness who testified as PW1 and tendered and had admitted 4 Exhibits, A, A1, B and C: the appellant also called a sole witness who testified as DW1, tendered and had admitted 4 Exhibits D, E, F, and G; the 2nd respondent also called a sole witness who testified as DW2.

Dissatisfied with the judgment of the trial Court the appellant appealed by a notice of appeal filed on the 3rd of October, 2012 on 8 grounds without the particulars as follows:
GROUND ONE:
The learned trial judge erred in law and thereby occasioned miscarriage of justice to the Appellant when having held that it is the contention of the 1st Defendant’s counsel that this Court should hold that PW1 and DW2 are not witness of truth on the ground that there (sic) were evasive and that there were contractions in the cause (sic) of their testimonies the Lower Court then found that:
“…However, I find it difficult to come to term with the 1st Defendant’s counsel that the Defense witnesses are not witnesses of truth, on the ground that nowhere

in the submission was the 1st Defendant able to show instances where there was material contraction in the evidence of the witnesses. The law is clear that the credibility of a witness can only be impeached on the ground set out in Section 233… Evident Act to wit…
From the proceedings of this Court neither the PW1 nor DW2 fell into any of the above categories; accordingly I hold that the PW1 and DW2 are witnesses of truth.

GROUND TWO:
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when it was held at pages 16 to 17 of the Lower Courts Judgment that:
“I must state clearly here that Exhibit B, the Power of Attorney was not tendered and admitted in evidence in these proceedings for the purpose of proof of transfer of title to Staircase Ventures Limited; the title to the res has at all material times resided on the plaintiff. The law is settled that where an unregistered but registrable instrument is admitted in evidence, on other purpose than as proof of title, it is valid.
It is obvious from the contents of Exhibit B, it did not alienate the plaintiff’s Right of

Occupancy rather it merely appointed the attorney to represent the plaintiff and in his name do all things as are outlined therein.
From the foregoing I hold the firm view that the Plaintiff has the locus standi to institute this action, since it is an elementary law that Power of Attorney do not confer title, therefore it will amount to judicial suicide for Staircase Ventures Limited to sue in its name

GROUND THREE:
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when it was held at Page 18 of the Courts judgment that:
“Exhibit E is a photocopy of a Development Lease Agreement; it also did not grant any title to the 1st Defendant over the res.
Exhibit F is a photocopy of Court process filed in suit No.FCT/HC/CV/1176/2008; it is a term of settlement between the Defendants; the plaintiff is not a party to it. Furthermore, it is doubtless to state that for all intend and purpose the said Exhibit is a public document…thought it was wrongly admitted in the cause of proceeding, however this Court hold it a duty to expunge same from its record,
In the light of the above

Exhibit F is hereby expunged for failing to meet the requirement of Section 104… Evidence Act.”

When none of Exhibits D, E, F, and/or G was improperly in evidence in the entire circumstances of the suit at the Lower Court.

GROUND FOUR:
The learned trial Judge erred in law occasioned and thereby miscarriage of justice to the Appellant when it was held at page 19 of the Lower Court’s judgment that:
“…More fundamentally there is no evidence whatsoever before this Court to show that the disputed plot 2415 was within the parcel of land measuring 225.355 Hectares at Mbora District described in the Development Agreement Exhibit E”.

GROUND FIVE:
The learned trial judge erred in law and therefore occasioned miscarriage of justice to the Appellant when it was held at pages 20-21 of the Lower Court’s judgment that:
Judgment is entered in favour of the plaintiff against the Defendant as follows:
1. The Defendant servant, agent and/or privies however, with the plaintiff’s development, quiet enjoyment and peaceful possession of the res, consisting of Plot 2415 Cadastral Zone C06 of Mbora

Layout, Federal Capital Territory, Abuja.
2. The sum of N500,000.00 is awarded as general damages against the 1st Defendant for trespass.

GROUND SIX:
The learned trial Judge erred in law and thereby occasioned miscarriage of justice to the Appellant when the Lower Court in the totality of its decision gave judgment to the 1st Respondent (as plaintiff) against the Appellant (as 1st Defendant) against the weight of evidence.

GROUND SEVEN:
The learned trial judge erred in law and thereby occasioned a miscarriage of justice to the Appellant when he failed to dismiss Suit No.FCT/HC/CV/6013/2011 on the ground that the failure to date and sign/issue the Writ of Summons by the Registrar or Official of the Lower Court was a mere irregularity capable or being waived and thereby assumed jurisdiction to determine the suit.

GROUND EIGHT:
The learned trial judge erred in law and thereby occasioned a miscarriage of justice to the Appellant when he determined Suit No.FCT/HC/CV/6013/2011 in the entire circumstances before the Lower Court.

From these grounds of appeal two issues each were formulated for the appellant and the

1st respondent, and one for the 2nd respondent; for the purpose of brevity and clarity this appeal will be decided on essential a slight modification of the issues as formulated by the parties, they are as follows:
“1. Whether the trial Court was right in holding that the failure to sign and or date the writ of summons was a mere irregularity, which did not deprive the Court of jurisdiction.
2. Whether the trial Court was right to holding that 1st irregularity established superior title to the land in dispute.”

Issue One:
Whether the trial Court was right to hold that the failure to sign and or date the writ of summons was a mere irregularity, which did not deprive the Court of jurisdiction.

It is submitted for the appellant that the trial Court acted in error in failing to strike out the suit for being incompetent, having commenced by an unsigned and undated writ of summons; learned counsel referred the Court to Order 4 Rules 1(1) and 15 of the Rules of Court.

That rules of Court enjoy constitutional flavour, and therefore ought to be obeyed; learned counsel referred the Court to KALU V ODILLI & 4 ORS (1992) 5 NWLR partÂ 240 at

130 and AIKI v. IDOWU (2006) 9 NWLR part 984 at 47.

Learned counsel further submitted that a plaintiff who has filed an undated and therefore invalid statement of claim and certificate of pre-action cannot hide under the inadvertence of the Courts registrar to excuse his omission.

It is submitted for the 1st respondent in response that the contention that the writ of summons and statement of claim were unsigned is misleading because the writ was not only dated 20th June 2011 but was endorsed by the registry for a filing fee of N3,750, while the statement of claim was duly dated and signed; he referred the Court to pages 4 to 7.

That failure of the registry to sign the writ does not invalidate same; he referred the Court to S. I. V. LTD V. AFRO-SHELTERS LTD (2010) 1 NWLR (Pt.1175) at 209 and S.C.C. NIG. LTD V. ELEMADU (2005) 7 NWLR (Pt.923) at 80.

Order 4 Rule 1(1) of the Civil Procedure Rules of the High Court of the Federal Capital Territory requires that:
“A writ of summons shall be issued by a registrar, or other officer of Court empowered to issue the summons
Rule 15 requires that a writ is issued when

signed on by a registrar or other officer of Court duly authorized to sign the writ
These rules of Court are all clear testaments to the relevance and importanceÂ of a writ, and the procedure of issuance of same; the question that now arises is whether the writ was unsigned and undated as contended, and if so what is the effect of that on the jurisdiction of the trial Court.

The writ of summons is on pages 1 to 3 of the record of proceedings filed on the 5th of December 2012; the writ is dated 20th day of June, 2011 but was not signed by the registrar; the statement of claim is equally dated 20th day of June, 2011, and signed by one Okwudili Anozie, of 3rd Floor Wema Bank Building, Central Area Abuja, as plaintiffs solicitor.

The registrar of the trial Court should have signed the writ of summons as required, but having failed to do so, the non signing does not in the considered opinion of this Court constitute gross disobedience as would deprive the trial Court of the necessary jurisdiction to hear and determine the suit, contrary to the contention of learned counsel for the appellant; this is more so as the plaintiff has done all that is required and expected of him, and the said writ was dated, and assessed by the registry.

Furthermore the statement of claim was not only dated but also signed by the plaintiffs counsel contrary to the position presented by learned counsel for the appellant.

It may sound cliche but it is trite that justice is no justice when it is only so technically, substantial justice on the other hand is timeless, and necessitates the acceptance of the truism that the rules of Court are

made for the Court and not the Court for the rules.
The Supreme Court had this scenario in mind when it held that:
It is settled that rules of Court or rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and aid the Court. They are as such not to be regarded or treated as masters of the Court. Therefore the Court in applying the rules which are merely its aids should not be slavish to the said rules but should give away more regards to the interest of justice. Thus where the interest of justice requires the Court should liberal in its application observance or compliance of the rules of Court” – See UTC (NIG) LTD V. PAMOTEI (1989) 2 NWLR (PT.84) 508 AND SHELL PETROLEUM DEVELOPMENT V. AGBARA & ORS; the Supreme Court went further to hold in SPDC & ORS V. AGBARA & ORS (2015) LPELR 25987-SC that:
”It is settled law that a Court of law will not allow the provision of an enactment to be read in such a way to deny access to Court by citizens. Thus, it is not the intention of the law to deny any litigant access to justice. A rule of Courts stands to guide the Court in

the conduct of its business and I must not hold as a mistress but as a hand maid. See: ONWUCHEKA V. NDIC (2002) 5 NWLR (PT.760) 371 at 393: CHRISDOM IND. CO. LTD V. AIB LTD (2002) 8 NWLR (Pt.768) 152 at 178 CD; UTC NIG. LTD V. PAMOTEI (1989) 2 NWLR (Pt.103) 244 at 296; CHIME V. CHIME (2001) 3 NWLR (Pt.701) 527 AT 553. per Muhammad, J.S.C.

It is therefore the considered opinion of this Court that the trial Court acted correctly when it refused to strike out the suit incompetence, especially in view of the fact also that the writ of summons was not only dated but endorsed, see pages 13; while the statement of claim was signed and dated, see pages 47 of the record of proceedings; contrary to the contention of learned counsel for the appellant.

Accordingly this issue is resolve in favour of the respondents, against the appellant.

Issue Two:
Whether the trial Court was right in holding that 1st respondent established superior title to the land in dispute.

It is submitted for the appellant that the Lower Court failed to properly evaluate the evidence and material placed before it, and thereby

arrived at a wrong conclusion, when it granted injunctive
relief and damages In favour of the 1st respondent, as plaintiff.

Because the evidence adduced at the trial demonstrates clearly the 1st respondent lacked locus standi to institute the suit; and because the plaintiff suppressed material facts in order or mislead the trial Court.

That the trial Court ought to have seen the contradiction in the testimonies of PWS 1 and 2 he referred the Court to IKUEPENIKAN V. STATE (2011) 1 NWLR part 1229 at 449 and UGBANI V. STATE (2003) 4 NWLR part 809 at 61.

That the trial Court ignored the admission of the attorney of the plaintiff to the effect that the plaintiff had sold the land; he urged this Court to interfere with the finding of the Lower Court and referred it to MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) 7 NWLR part 1173 at 254.

Learned counsel further submitted that the relationship between the plaintiff and Staircase Ventures was that vendor and purchaser of land but facts relating to the sale were concealed, especially as the way the suit was instituted was tainted with fraud; thus the plaintiff lacked

the locus to institute the suit because he had alienated his interest in the res to Staircase Ventures; he referred the Court to ONWUDINWE v. FED. REP. OF NIG. (2006) 10 NWLR (Pt.988) at 382.

That the trial Court ought to have dismissed the plaintiffs case, instead it made out a case for him which he didnt make; he referred the Court to OSULU V OSULU & 6 ORS (2003) 11 NWLR part 832 at 608.

Learned counsel further submitted that where in action for trespass a defendant claims to be the owner of a disputed land titled is put in issue, and in order to succeed, the plaintiff must show better title; he referred the Court to OKOKO v. DAKOKO (2006) 14 NWLR (Pt.1004) at 401.

That the trial Court failed to properly evaluate the evidence before it, particularly as DW1 was never cross-examined, and the Court did not find his evidence incredible; he referred the Court to OZIEGBU ENGINEERING COMPANY LTD V. IWUAMADI (2009) 16 NWLR part 1166 at 44.

Learned counsel further submitted that the judgment of the Court was against the weight of evidence as the 1st respondent did not make any valid case for an order of injunction, because he who

comes to equity must come with clean hands and the concealment meant dirty hands; learned counsel referred the Court to UNIVERSAL TRUST BANK LTD & ORS V.DOLMETSCH PHARMACY NIG. LTD (2002) 8 NWLR Part 770.

That the 1st respondent did not establish exclusive possession or title as would entitle him to an award of general damages against the appellant for trespass, he referred the Court to ASEIMO & 2 ORS V. ABRAHAM & ORS (1994) 8 NWLR part 341 at 191 and SKYE BANK PLC V AKINPELU (2010) 9 NWLR Part 1198 at 179.

It is further submitted while referring to LAGGA V. SARHUNA & ANR (2008) 16 NWLR part 114 at 427 that the Court should exercise its powers under Section 15 of the Court of Appeal Act in allowing this appeal.

In response it is submitted for the 1st respondent that there was no alienation of the land in dispute by the 1st respondent as contended because there was no conveyance, and the question of buying and selling of the property was never pleaded and so go to no issue; he referred the Court to OLUFOSOYE V. FAKOREDE (1993) 1 NWLR part 272 at 764.

That the testimony of PW1 did not contradict Exhibit B, which states that

the Power of Attorney was given for valuable consideration; and also that no evidence may be announced to derogate from the documentary evidenced, he referred the Court to Section 128 (1) of the Evidence Act and INWELEGBU V. EZEANI (1999) 12 NWLR part 630 at 277

Learned counsel further submitted that the 1st respondent had locus standi to institute the suit as it had vested interest in the disputed land by Virtue of Exhibit A; Exhibit B by which the attorney instituted the action was never challenged at the Lower Court.

That also the 1st respondent having proved his case the trial Court was right to shift the burden of proof to the appellant to prove its defense of ownership; and Exhibits D, E, F and G tendered in proof by the appellant are neither grants nor instruments of title nor deeds.

It is submitted for the 2nd respondent that the 1st respondent in proof of its of claim title tendered the Right of Occupancy to the plot in dispute, and a legal search report in respect of the same plot to establish its claim to title, and all these were affirmed by the 2nd respondent.

That also the failure of the appellant to call the subpoenaed

witness shows that his testimony would have been adverse to their claim; and also that the contention that DW2 is not a witness of truth should be discountenanced because the credibility of a witness is tested only by knowledge of the facts, integrity, disinterest and whether the evidence is contradictory; he referred the Court to KWARA V. INNOCENT (2009) 1 NWLR (PT.1121) page 231.

Learned counsel further submitted that the trial Court is in a better position to assess the credibility of a witness than the appellate Court; he referred the Court; he referred the Court to MIYAKI V. STATE (2008) 15 NWLR part 1109 page 217.

It is submitted for the appellant in reply to the 1st respondent that the appellant was in possession and presumptive was the owner even thought the two of them were claiming against each other and could not have both been in possession at the same time; learned counsel referred the Court to ORIORIO & 14 ORS V. OSAIN & 2 ORS (2012) 16 NWLR part 1327 at 560.

That also the rejection of Exhibit D, E, F, and G caused a substantial miscarriage of justice to the appellant, in the sense that if they had been admitted the and not

expunged, the decision of the Court would have been in favour of the appellant; he referred the Court to IGIEHON & 2 ORS V. OMOREGIE & ANR (1993) 2 NWLR part 276 at 398.

In reply to the 2nd respondent the appellant while adopting the submissions in response to the 1st respondent referred the Court to ATANDA V. ILLIASU (2013) 6 NWLR part 1351Â at 529, OGUANU & 2 ORS V. CHIEGBOKA (2013) 6 NWLR and AGAGU V. DAWODU (1990) 7 NWLR part 160 at 56 and argued that there is no suggestion that Exhibit E is inadmissible as it was appropriately marked in accordance with Section 104 and 146 of the Evidence Act 2011.

Having gone through the submissions of learned counsel on both sides of the divide it is very important from the onset to note that going by settled judicial authorities, the term locus standi in its generic sense denotes legal capacity on the part of a litigant to institute proceedings in a Court of law; the term fundamentally focuses on the party seeking to get his complaint heard before a Court; see OLORIODE V. OYESI (1984) 5 S.C. 1 and PROF YESUFU V. GOV. EDO STATE & ORS (2001) 13 NWLR part 731 at 511.

Now even if

this Court were to believe hook line and sinker the argument that the attorney of the 1st respondent, Starcase Ventures Limited bought the land in dispute, thus depriving the 1st respondent locus standi to institute the suit at the lower alienation, by reason of Section 22 of the Land Use Act, for the simple reason that the law anticipates the consent of the Minister of the Federal Capital Territory for alienation to take effect.

That being so the disputed land could not then have been alienated to Starcase Ventures Limited, in the true sense of the word, regardless of the testimony of PW1, to deprive the 1st respondent locus standi in the suit before the trial Court.

The point to note here is that in the absence of alienation there is no conveyance, and without conveyance legal title still remains with the vendor.

This Court cannot also help but agree with learned counsel for the 1st respondent that it does appear from the pleadings, the only ground on which the parties joined issues was on the ownership of the disputed land, but surely not on the relationship between the 1st respondent and Starcase Ventures Limited, in whose

favour the 1st respondent executed the irrevocable Power of Attorney, i.e. Exhibit B.

evidence obtained in cross examination but on facts not pleaded is inadmissible, put differently, evidence elicited in cross examination is inadmissible in as much as it is not supported by the pleading of either party, see PUNCH NIGERIA LTD V. ENYINA [2001] 17 NWLR (Pt.741) 228.
That is to say, evidence extracted under cross examination, as was the case at trial, but which was not pleaded, and upon which no issue has been joined and canvassed, goes to issue; see OKOKO V. DAKOLO (2006) 14 NWLR part 1000Â at 401.

On the question of whether the PW1 was a witness of truth or not as argued, his evidence in Chief and cross examination is on pages 403 to 408 of the record of appeal; and nothing there shows that the witness contradicted himself, the trial Court was right when it also

held so.

In any event the trial Court who saw the witness in the box and observed his demeanour is better positioned to assess his credibility on that account; it is for this reason that the Supreme Court had this to say in IGE v. AKOJU (1994) 4 NWLR (Part 340) at 535:
While it is true that demeanour of a witness may not be a guide to the truth, the conclusions of a trial judge on how a witness behaved in the box should not be lightly disregarded. PER OLATAWURA, J.S.C.

This clearly applies to DW2 in this case, the veracity of whose evidence was equally questioned by learned counsel for the appellant.

On burden of proof it is the considered opinion of this Court that the appellant who claimed ownership of the disputed land against the 1st respondents claim for trespass before the burden that shifted to him after the 1st respondent had established its legal right of ownership by reason of Exhibit A1, A2 and C.

Section 131, 132 and 133 of the Evidence Act respectively state as follows:
Section 131 Evidence Act:-
(1) Whoever desires any Court to give judgment as to any legal right or liability

dependent on the existence of facts which he asserts must prove that those facts exists.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

Section 132 Evidence Act:-
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Section 133(1) & (2) Evidence Act:-
”(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any
presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with”

The 1st respondent having established his claim, the trial Court was right when it shifted the

burden of proof at page 452 of the record of proceedings to the appellant, to prove its defense of ownership of the disputed land.

All that is needed to succeed in an action for trespass is exclusive possession or right to exclusive possession; and once a person is liable for trespass, he is liable to pay damages regardless of whether or not actual damage was done; seeÂ ADESANYA V. OTUEWU (1993) 1 NWLR (Pt.270) 414, ANYABUNSI V. UGWENZE (1995) 6 NWLR (Pt.401) 255.

On the whole this Court is satisfied that the trial Court unquestionably evaluated the evidence before it, and ascribed probative value to same, its findings are not perverse, as such this Court finds neither need nor necessity to substitute its findings for that of the trial Court; accordingly this issue too is resolved in favour of the respondents, against the appellant.

Having resolved both the issues for determination in this case in favour of the respondet, against the appellant, this appeal fails, and it is hereby dismissed for lack of merit; the decision of the trial Court is hereby affirmed.

Cost of N20,000 is awarded against the appellant, in favour of the 1st

respondent only.

ABDU ABOKI, J.C.A.: I agree.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the judgment which has just been delivered by my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning and conclusion therein. I also dismiss the appeal and affirm the judgment of the trial Court. I abide by the order as to costs made in the lead judgment.

Appearances

P O. Abang, Esq. with him, Affios Manmu, Esq. For Appellant

AND

Okwudili Anozie, Esq. with him, S. C. Nnaoko, Esq. For Respondent