MICHEAL IDOWU v. DR RAPHEAL AKIN AJAYI & ORS
(2016)LCN/8578(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of May, 2016
CA/B/70/2005
RATIO
EVIDENCE: RULE GOVERNING ADMISSIBILITY OF EVIDENCE
Admissibility of oral or documentary evidence is usually governed by relevance. The Court while considering the evidence, determines what weight to attach to it. In other words, once a piece of evidence is relevant, it is admissible in evidence regardless of how such evidence was brought.
See Asugno V. Eyo (2014) 4 NWLR (Pt. 1400) 247. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; EFFECT OF AN INADMISSIBLE DOCUMENT
However, it is trite law that where an inadmissible document is tendered, the Court may in civil cases, reject such evidence even if a party fails to object to its admissibility. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
WORDS AND PHRASES: MEANING OF OWNER
The Black’s Law Dictionary, 8th Edition defines owner to mean:
“One who has the right to possess, use and convey something; a person in whom one or more interests are vested”. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
LAND LAW: REQUIREMENT FOR A VALID CUSTOMARY SALE OF LAND
The law is trite that the sale, transfer or grant of land under native and customary law is constituted by handing over of the land so sold or transferred in the presence of witnesses. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MICHEAL IDOWU Appellant(s)
AND
1. DR RAPHEAL AKIN AJAYI
2. YESUFU OLUYEDE
3. F.A. OGUNLEYE
4. ADEDARA ORUNTAN
5. ISHOLA YESUFU
6. KEHINDE YESUFU
(For themselves and on behalf of other Members of Olugunloye Tutugbua Family of Akure)
7. COMMISSIONER FOR LANDS AND HOUSING, AKURE
8. RUFUS KOMOLAFE (AKURE AREA TOWN PLANNING OFFICE, AKURE)
9. OLUWATOSIN TAIYE (AKURE AREA TOWN PLANNING OFFICE, AKURE)
10. CAPTAIN SABA AMOSU Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State sitting at Akure delivered by Hon. Justice A. Adetosoye on the 24th day of May, 2000.
The appellant was the 10th defendant at the trial Court along with 9 others who are now respondents herein together with Dr Raphael Akin Ajayi, the plaintiff thereat.
The action commenced by a writ of summons dated 18th of December, 1998. Plaintiff filed an amended statement of claim dated and filed 6th July, 1994 while the defendant filed his amended statement of defence and counter claim on 20th May, 1994. See Pages 38 ? 43 and 44 ? 46 respectively.
?The plaintiff claimed against the defendants jointly and severally for
(a) The sum of N2,000,000.00 (Two Million Naira) being general damages for trespass committed by the defendants on the plaintiff’s plot or the piece of land between the months of May, June and July, 1988 at Akure at Oluguatoloye Tutugbua Family layout along Akure, Ondo Road, Akure and which trespass still persists.
(b) An order of perpetual injunction restraining the
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defendants’ their servants, agents and/or their privies from entering upon or having anything whatsoever to do on the said piece or parcel of land of the plaintiff.
In the cause of doing his case, the plaintiff called four witnesses and testified for himself as the PW5. He tendered Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’ – G1, J and K. The appellant on the other hand who was the 10th defendant thereat called three witnesses who testified before the lower Court. Appellant tendered ID1 which was later rejected by the Court.
It was against the judgment of the learned trial Court in favour of the plaintiff and against all the respondents that the 10th respondent, herein the appellant in dissatisfaction approached this Court vide an amended notice of appeal dated 17th day of November, 2008 and filed 28th November, 2008 containing five (5) grounds of appeal.
SUMMARY OF FACTS:
The 1st respondent in this case was at all the material time to this action a purchaser of the land in dispute in this case from some of the members of the family of the 2nd to 6th respondents.
The appellant in the case was at all the material time to this action also a purchaser of the land in dispute in this case from the Head of Family and Principal member of the family of the 2nd to 6th respondents
?It was adequately proved before the lower Court in this case that both
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the appellant and the 1st respondent were all issued with family receipt of the 2nd to 6th respondents as individual purchasers of the land in dispute in this case though, the lower Court rejected the admissibility of the appellant’s purchase receipt in evidence before it.
As a matter of fact, the 1st respondent’s land as stated in Exhibit ‘D’ was contained in Exhibit ‘A’ which was made by the 2nd to 6th respondents’ family in the year 1977 and that on the basis of the said Exhibit ‘A’ and ‘D’ the 1st respondent procured his Certificate of Statutory Right of Occupancy Exhibit ‘J’.
The 2nd to 6th respondents’ family caused an amendment to the said Exhibit ‘A’ by Exhibit ‘B’ in the year 1988 and the land was sold to the appellant by the 2nd to 6th respondents’ family which is the land in dispute in this case is contained in Exhibit ‘B’ which amended Exhibit ‘A’.
The said amended family layout of the 2nd to 6th respondents’ family in this case was done according to the normal legal protocols and was equally approved by the survyor -general of Ondo State through the application of the 2nd to 6th Respondents? family by Exhibit ?C? without any
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condition.
By virtue of Exhibit ?B?, Exhibit ?A? had been cancelled b y the Surveyor-General of Ondo State since the year 1988.
Pleadings were filed and exchanged after which the trial commenced proper on the 21st April, 1999.
In compliance with the rules of this Court, appellant’s amended brief of argument was filed on the 28th November, 2008 and it was adopted on 8th February, 2016.
Respondent on his part did not file any brief in response to the appellant’s case. Leave of this Court was sought and obtained by the appellant through a motion on notice dated and filed 21st May, 2015 for the appeal to be heard on the amended appellant’s brief alone, the respondents having failed to file their respondents’ briefs of argument in compliance with the stipulated rules. This Court granted same by its order dated 21st May, 2015.
The appellant distilled the following issues for the determination of the appeal
(i) Whether the learned trial judge was right in rejecting the admissibility of the 1. Dl i.e the purchase receipt dated 2/5/77 that was tendered under cross – examination through DW2 on the 10th day of
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November, 1999 in this case
(ii) Whether in view of the amendment of Exhibit “A” by Exhibit “B” that the respondent could still be said to be the owner of the land in dispute in this case.
(iii) Whether the onus of proof of the 1st respondent?s case on the preponderance of evidence has been established before the lower Court.
(iv) Whether there was anything before the lower Court in this case to show that Exhibit ?B? was fraudulently procured by the 2nd to 6th respondents.
(v) Whether there was any justification for the award of N500, 000.00 (Five Hundred Thousand Naira Only) damages against the appellant in this case.
I shall therefore in line with the earlier order of this Court determine the appeal based on the issues as raised by the appellant.
ARGUMENT:
ISSUE ONE:
Whether the learned trial judge was right in rejecting the admissibility of the ID1 i.e the purchase receipt dated 2/5/77 that was tendered under cross -examination through DW2 on the 10th day of November, 1999 in this case.
In arguing this issue, learned counsel for the appellant refers to Section 91(1) (a) and (b) of the Evidence
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Act and also page 95 of the record to submit that DW2’s evidence on record justifies the sale of the land in question to the appellant. That DW2 confirmed in evidence that his family after selling the land to the appellant, issued receipt in that regard which he identified as ID1. That DW2 had personal knowledge of the dealings in ID1. Counsel contended that by the provision of Section 91 (1)(a) and (b) which authorizes a document to be tendered by a person who can give direct oral evidence of the contents of the document qualifies DW2 to do so.
He is of the view that DW 2 had infact already given a direct oral evidence of ID1. He relied on the case of Chief Anthony Okafor V. Mrs. Promise Okpala (1995) 1 NWLR (Pt.374) 749 @ 75 7.
In a further argument to make his point on this issue, counsel referred to DW1’s evidence on page 91 of the record to establish that DW2, the son of the family head of 3rd – 6th respondents identified the signature on ID1 belonging to his father (deceased).
That the said document was tendered through him during cross -examination and which was rejected by the Court. Relying on the case of International Institute of
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Tropical Agriculture V. Amran Ami Amrani (1994) 3 NWLR (pt.332) 296 @ 319 and the provision of Section 90 (1) (b) of the Evidence Act, 1990, counsel contended strongly that it was wrong for the trial Court to have rejected the admissibility of ID1. He stressed that 2nd to 6th Respondents were sued in representative capacity.
That PW3 also confirmed in evidence that the 2nd to 6th Respondents family sold the disputed land to the appellant in 1988, showing relevancy of ID1 which its contents had been admitted by 1st respondent in evidence.
RESOLUTION:
This issue bothers on the non admissibility of a document, ID1. The document was tendered through DW2 during cross – examination but the learned trial Court in its ruling on page 97 of the record rejected same. The trial judge agreed with the counsel for the plaintiff?s submission when he raised objection on the ground that the witness asides not being the maker of the document (ID1), is also not a principal member of the family and does not possess the receipt.
?Learned counsel’s contention is that DW2 had personal knowledge of the dealings in ID1 rejected in evidence and which was
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tendered through him in line with Section 91(a) (b) of the Evidence Act, 1990.
Admissibility of oral or documentary evidence is usually governed by relevance. The Court while considering the evidence, determines what weight to attach to it. In other words, once a piece of evidence is relevant, it is admissible in evidence regardless of how such evidence was brought.
See Asugno V. Eyo (2014) 4 NWLR (Pt. 1400) 247.
However, it is trite law that where an inadmissible document is tendered, the Court may in civil cases, reject such evidence even if a party fails to object to its admissibility.
It was held in Adediran Lateef & Ors. V. F.R.N. (2010) LPELR 9144 (CA) that: ?it is quite settled on the authorities and it is a notorious principle of law that it is the maker of a document that should tender the document in any legal proceedings?.
The learned counsel for the plaintiff in line with standard practice objected to the admissibility of a document (ID1) sought to be tendered by DW2 who is not the maker. See page 96 of the record.
?Civil cases are decided on the preponderance of evidence it is deducible from the facts
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and evidence on record that the learned trial Court did not attach any probative value to ID1 for the reasons earlier cited in Adediran Lateef & Ors. V. FRN (supra). See also Lambert V. Nigerian Navy (2007) 14 WRN page 136 @ 189-190.
It is my candid view and I so hold that the rejected of ID1 in evidence by the lower Court having not been tendered through the maker was in order. I resolve this issue against the appellant and in favour of the respondent.
ISSUE TWO:
Whether in view of the amendment of Exhibit “A” by Exhibit “B” that the 1st respondent could still be said to be the owner of the land in dispute in this case.
Appellant’s counsel submits, that PW1 ? PW5 gave evidence that the family of 2nd to 6th respondents in 1988 legally amended Exhibit ‘A’ with Exhibit ‘B’ through the office of the commissioner for lands and Authority, Akure, Ondo State.
That the amendment was approved by the surveyor general of Ondo State. Referring to page 74 of the record, counsel contended that the evidence given by PW1 shows that 2nd to 6th respondents sought for the amendment of Exhibit ‘A’ through Exhibit C. That PW1 confirmed that
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the effect of the said amendment was Exhibit ‘B’ which he says supercedes Exhibit ‘A’. He referred to PW1’s evidence under cross – examination on page 76 of the record.
?Learned counsel continued by saying that should the respondent not be able to establish fraud as to the coming into existence of Exhibit ‘B,’ that it had divested the interest of the 1st respondent in respect of the disputed land since 1988 and that same interest had been vested on the appellant.
Counsel asserted that the amendment carried out in Exhibit B involved all the principal members and family head of 2nd to 6th respondents.
He referred to pages 78 & 79 of the record where he excerpted PW2?s evidence in Chief to wit:
“The family made the amendment to Exhibit ‘A’ in response to Exhibit ‘C’. The amended layout is Exhibit ‘B’. In Exhibit ‘B’ Block U was changed to residential Plots, there are now 7 Plots in Block U. There is no Chinic in Block U of the Exhibit ‘B’. By Exhibit ‘B’ made in 1988 it now accommodates plots 6 and 7.”
He argued that PW3’s evidence on page 83 of the record shows that the land in dispute was sold to the appellant in 1988. That the
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action was instituted on 18th December, 1988, 10 years after 2nd to 6th respondents’ family legally amended Exhibit ‘A’ by Exhibit ‘B’. That the 1st respondent cannot maintain any action in trespass and injunction against the appellant in respect of the disputed land. He relied on the following authorities:
– Sunmonu Olohunde & Anr. V. Prof. S. K. Adeyoju (2006) 6 SCNJ:
– The A. G. Oyo State & 3 Ors. (1996) 45 LRCN Paragraph 2476 @ 248 – 249 (sic)
– Dr E. A. Adebo V. Saki Estates Ltd. & Anr. (1999) 5 SCNJ 150 @ 164
– Engr. Bayo Akinterinwa & Anr. V. Cornelius Oladunjoye (2000) FWLR (Pt.10) 1690 @ 1712
RESOLUTION:
The Black’s Law Dictionary, 8th Edition defines owner to mean:
“One who has the right to possess, use and convey something; a person in whom one or more interests are vested”.
From the evidence on record, 2nd – 6th respondents herein being the original owners of the Otutugbua family layout, sold plot 1, block U which was earmarked in the survey plan as commercial as contained in Exhibit ‘A’. The transaction for the purchase of the said property was concluded in the presence of the principal
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members of the family who after the payment of N3000.00 by the plaintiff thereat, issued him with a receipt which they all signed. Contract of sale was duly executed. It is common practice that the receipt of purchase price in a transaction coupled with the delivery of possession confers an equitable interest in landed property. It was held in the case of Mohammed Vs. Mohammed (2012) 11 NWLR (Pt.1310) that
“Where a party entered into an agreement with his eyes open and received consideration which he never returned to the other contracting party, equity will come in to stop him from retracting from the agreement. He cannot be allowed at that stage, having benefitted to refuse to give consideration to the other party by passing title to him”.
The law is trite that the sale, transfer or grant of land under native and customary law is constituted by handing over of the land so sold or transferred in the presence of witnesses. These procedures were complied with in the instant case and the interest and ownership of the property in dispute were transferred of the 1st respondent herein who was the plaintiff at the Court below.
?By the transaction that was
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legally executed between the parties, the 2nd to 6th respondents had been divested of their interest in the property. PW2 confirmed in evidence that after the 1st respondent made the payment in respect of the land, he was issued with a receipt duly signed by the principal members of the family, namely the Chairman Yesufu Olayede, the Vice Chairman E.O. Ogunleye the Treasurer Adedara Oruntan and himself as the family Secretary. That the receipt is Exhibit ‘D’ while the layout is Exhibit ‘A’ and the plot earmarked on it as Chinic was sold to the 1st respondent herein after which he took full possession of the property.
The learned trial Court held on pages 133 – 134 of the record:
“That the plaintiff asides enjoying uninterrupted possession of the property over a long period of time, also exercised ownership in several ways such as;
1. He surveyed the plot sold to him
2. He cleared the plot
3. He put in his brother to farm on his plot
4. He obtained Certification of Occupancy Exhibit ‘J’ without objection from any quarter
5. He deposited loads of sand and gravel on the land which the 9th and 10th defendants used 20 &
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25 lorry loads of gravel and sand respectively
6. He objected to trespass to his land orally and in writing to 1st – 5th defendants and 9th and 10th defendants as per Exhibit ?K?.
With the above facts and the authority earlier cited, I also agree intoto with the learned trial judge that plaintiff was in absolute possession of the disputed land being the legitimate owner.
I find no reason to fault the position of the learned trial Court above and I so hold. The reasons given by the defendants thereat for making Exhibit ‘B’ in replacement of Exhibit ‘A’ cannot stand as the act was done in bad faith to defraud the plaintiff/1st respondent of his property. I further agree with the learned trial judge where he held on page 134 of the record that “it is deducible from the evidence before this Court that Exhibit ‘B’ was an instrument of fraud perpetrated by the defendants to deprive this plaintiff of his plots covered by Exhibit “j” the Certificate of Occupancy?”
Therefore, in view of the surrounding circumstances of this case and the clear facts before the Court, there is no gainsaying the fact that defendants had no right of
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sale of the disputed land. They did not, by law, have the right to amend Exhibit ‘A’;
The evidence given by PW4 who was the family’s surveyor on page 86 of the record cannot be ignored. He says “?the amended layout (Exhibit B) does not supercedes the original layout Exhibit “A’ because the family no longer had legal right over the area already sold.?
Witness?s reaction is to the effect that, had the properties not been sold by the family, their making of Exhibit ?B? would have been positive. Thus, Exhibit ?A? remains a valid document and cannot be replaced by Exhibit B in the circumstances.
I hold that the 1st respondent is the owner of the land in dispute as the defendants had no interest left in the property they sold to the 9th and 10th defendants.
The legal doctrine, Nemo dat quod non habet refuses or does not give validity to a sale that is conducted by a non – owner. The sale of the land in dispute plot 1 in block U contained in Exhibit ‘A’ by the family and the principal members of the said family having agreed and jointly signed Exhibit D in consideration for the purchase value of N3000.00
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(Three Thousand Naira Only) paid by the 1st respondent, they ceased to be owners of the land in question.
This issue is resolved in favour of the 1st respondent and against the appellant.
ISSUE THREE:
Whether the onus of proof of the 1st respondent’s case on the preponderance of evidence has been established before the lower Court.
The contention of the learned appellant’s counsel on this issue is that the learned trial judge in delivering his judgment, wrongly relied on the evidence given by the PW1 and PW2 in respect of Exhibits ‘A’ and ‘B’ which according to him are contradictory and inconsistent. He referred to pages 75,76 and 80 of the record.
Learned counsel excerpted the evidence of PW1 and PW2 respectively.
PW1 ?The difference between Exhibits ?A? and ?B?, Exhibit ?A? was approved in January, 1977 while Exhibit ‘B’ was approved in 1988. The amendments sought out in Exhibit ‘C’ were carried out in Exhibit ‘B’. The originals of Exhibits ?A’ and ?B’ were signed by the Director of Urban and Regional Planning Department of Ministry of Works. Exhibit ‘B’ supercedes Exhibit
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?A
PW2: “Exhibit ‘A’ is the authentic layout. Exhibit ‘B’ is a fake document”
Counsel relied on the following authorities in support of his argument.
Ojo Adebayo V. Mrs. F. Ighodalo (1996) 5 SCNJ 23 @ 31 and Engene Nnaekire Egbesimba V. Ezekiel Onuzurike (2002) FWLR (pt. 128) 1386 @ 1432 Paragraphs D – F.
He argued that Exhibits G and G1 are confirmation of Exhibit ‘E’. That PW2’s evidence that he neither printed receipts, nor forged his family members signature was discredited by Exhibits G, G1 and his evidence on page 81 of the record. That the trial judge ought to have ignored PW2’s evidence. He maintained the view that 1st respondent did not discharge the onus placed on him by law as enshrined in Section 137 (1) of the Evidence Act, 1990. He cited the following cases:
-Balogun V. Libiran (1988) N.S.C.C. Vol.19(Pt.1) 1056;
-Union Bank Nig. Ltd. V. Ajagun (1990) 1 NWLR (Pt.126) 328 @ 341 paras F ? G.
-Victor Okonkwo V. George Okonkwo (1998) 7 SCNJ 246 @ 254
-Abasi V. Braimah (1998) 63 LRCN 5003 @ 5015.
RESOLUTION:
The burden of proof shall be discharged on the balance of probabilities
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in all civil proceedings. See Section 133 of the Evidence Act, 2011.
The evidence given by the 1st respondent as to how he bought the land in dispute, the making of Exhibits ‘A’ and ‘D’ support all the evidence given by PW1 to PW4. These pieces of evidence were not contradicted by the defence. The essential ingredients of valid sale of land which are (1) payment of agreed purchase price
(2) Taking over possession by the purchaser (3) The presence of witnesses; have been fulfilled.
Though it is clear from evidence that the plaintiff and the 9th and 10th defendants all bought the same property from the same family of Tutugbua/Olugunsiloye, the fact still remains that first in time is stronger in law and issue of priority becomes imperative. It was held in Owie V. Ighiwi (2005) 21 NSCOR 207 at 209 as follows: “where the issue of priority of interest arises and the grant relates to the same parcel of land, then the first in time takes priority”. The plaintiff was the 1st to buy the land in dispute in 1977 before the family purportedly amended Exhibit ‘A’ by Exhibit ‘B’ around 1988, about eleven years after and resold the land to the 9th and 10th
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defendants. I am convinced that the case of Tewogbade V. Obedina (1994) 4 SCNJ 161 @ 163 relied upon by the learned trial Court on page 135 of the record is also relevant to this case. The decision of the apex Court therein is hereunder reproduced.
“Where two contesting parties trace their title in respect of the same piece of land to the same grantor the applicable principle of law has always been that the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor because the grantor having successfully divested himself of his title in respect of the piece of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod no habet as no one may convey what no longer belongs to him”.
In my view, the resolution of issue two earlier in this case and the authority above has taken care of this issue.
Accordingly, it is resolved in favour of the 1st respondent.
ISSUE FOUR:
Whether there was anything before the lower Court in this case to show that Exhibit ‘B’ was fraudulently procured by the 2nd to 6th
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respondents.
Appellant’s argument on this issue is that Exhibit “B” was genuine and not fraudulently procured. That it was approved by the Ministry of Lands and the request was made through Exhibit “C” by the 2nd to 6th respondents’ family. Counsel referred to the trial Court’s position in its conclusion on page 134 of the record where the learned trial Court held that, had the 7th, 8th and 9th respondents been to the site to see for themselves what was happening (on disputed property), they would have at least been able to deter the 2nd to 6th respondents’ dishonest acts of procuring Exhibit ‘B’.
Learned counsel contended that a dishonest act being a criminal offence, that the standard in law is proof reasonable doubt.
He referred to the case ofHajiya Ogbole V. Mrs. Regina Lawani (2003) FWLR (pt. 187) 859 Paragraphs D ? E where it was held as follows:
“The appellant was accused by the respondent with the offences already stated above. Thus, the burden of proving that the appellant has been guilty of the criminal offences is clearly rested on the respondent who asserted the affirmative. As I earlier stated, she must, to succeed,
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established her allegation beyond all reasonable doubt as required in criminal law notwithstanding the fact that the commission of the crime has arisen in civil proceedings.”
Learned counsel further referred to the following cases:
– Abiodun Adelaja Vs. Olatunde Fanoiki (1990) 2 NWLR (pt. 131) 137@ 153 Paragraphs C-D
– Hon Justice Anya V. African News Paper of Nigeria Ltd. (1992) 6 NWLR (pt. 247) 336.
– SPDC Nig. Ltd. V. Chief Victor Sunday Olarenwaju (2003) FWLR (pt. 140) 1640 @ 1663 Paragraphs B ? C
– Omodele Ashabi Eya & 2 Ors. V. Alh. Bello Qudus & Anr. (2002) FWLR (pt. 106) 1089 @ 1114- 1115 Paragraphs H -A.
RESOLUTION:
The evidence on record shows that Exhibit ‘B’ which is the amendment made by the 2nd to 6th respondents through Exhibit ‘C’ of Exhibit ‘A’, PW1 who was the Area Urban and Regional Planning officer at the time of making both Exhibits ‘A’ and ‘B’ gave evidence that Exhibit ‘A’ was amended in 1988, that it was Tutugbawa Family that instigated the amendment. The request for amendment was made in Exhibit ‘C’ after which the authority approved. On page 74 of the record, PW1 further testified that
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the normal procedure when carrying out such amendments is for the authority in charge to visit the site before approval. The procedure he said was not followed before approving the amendment of Exhibit ?A?.
However, the fundamental question here is whether Tutugbuwa family ie the 2nd to 6th respondent having divested their interest in the land in dispute by way of sale to the 1st respondent as discussed earlier in this case had the right to make Exhibit C in order to amend Exhibit “A” ? The answer to me is in the negative and as held earlier in this case, Exhibit ‘B’ does not invalidate Exhibit ‘A’. the making of Exhibit ‘B’ by the Tutugbua Family to my mind was not in order and cannot stand to invalidate Exhibit ‘A’. The learned trial Court held on page 132 of the record that “All witnesses, both for the plaintiff and 1st- 5th defendants agreed as to the mode of sale of family plots in Exhibit ?A’ and later Exhibit ‘B’.”
Thus, having sold the plots in Exhibit ‘A’ the family had no business amending what no longer belonged to them. See the case of Tewogbade V. Obedina (Supra).
This issue is resolved for the 1st respondent and
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against the appellant.
ISSUE FIVE:
Whether there was any justification for the award of N500.000.00 (Five Hundred Naira Only) damages against the appellant on this suit:
Learned counsel for the appellant disagrees with the award of N500.000.00 (Five Hundred Naira Only) damages by the learned trial Court in favour of the 1st respondent. He referred to the case of West African Shipping Agency V. Kalla (1978) 3 SC 21 @ 32 to argue that the award of general damages by the trial Court in a case of trespass to land was indirect was of compensating the 1st respondent in form of special damages. That same was never sought in the 1st respondent’s writ of summons.
Counsel cited the case of Onyibo Madubuonwu & 7 Ors. V. Mumudu Nnalu & 3 Ors. (1992) 8 NWLR (pt. 260) 440 @ 455 Paragraphs B – D.
That by the coming into place of Exhibit ‘B’, the 1st respondent’s interest in the land had ceased to exist. That 1st respondent by that effect was not entitled to damages for trespass since the approval of Exhibit ‘B’ in 1988. He referred to the cases of Kopek Construction Ltd. v. Johnson Koleola Ekisola (2003) FWLR (pt. 139) 1508 Paragraphs E – F:
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Chief S. E. Badatoal v. Oba Alade Jana, the Alaworoko (2001) FWLR (pt. 1670) 1682 Paragraphs D – E: Imah V. Okogbe (1993) 9 NLR (pt. 159): Ogundipe V. Aire (1998) 1 NWLR (pt. 68) 118 and Rockonoh Property Co. Ltd. V. Nitel PLC. (2001) FWLR (pt. 67) 885 @ 900 Paragraphs C- D.
RESOLUTION:
The major contention of the appellant herein is that the learned trial Court wrongly awarded general damages to the 1st respondent.
That with the coming into existence of Exhibit ‘B’, the interest of the 1st respondent in Exhibit ‘A’ ceased to exist and thus not entitled to damages.
On page 89 of the record, plaintiff gave evidence that after the necessary payment in respect of the disputed land, he was shown the land after which he surveyed same and thereafter wrote an application for Certificate of Occupancy. That on getting the Certificate of Occupancy (Exhibit J), 1st respondent was able to establish that he dropped loads of sand and gravel on the land which according to him was used by the 9th and 10th defendants who built on his land.
The learned trial judge in a considered judgment on pages 136 to 137 of the record granted the plaintiff’s
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reliefs as prayed in his amended statement of claim. In the case of Cameroon Airlines V. Ototuizu (2011) 2 SCNJ 96 @ 100 – 101 it was held that:
“General damages are awarded by the trial Court to assuage a loss caused by an act of the adversary. An appeal Court is always loath to interfere with such award, but will be compelled to do so:
(a)Where the trial judge acted under a misapprehension of facts or law;
(b)Where he failed to take into account relevant matters
(c)Where the amount awarded is too low or too high
(d)Where failing to interfere would amount to injustice.”
The law is trite that an award of general damages is an award made at the discretion of the Court.
In view of the circumstances of this case and the facts before the Court, the learned trial judge found it necessary to award damages. The learned trial Court’s position on page 136 of the record is hereunder excerpted:
“In view of the foregoing the plaintiff has proved the tort of trespass against all the defendants and judgment is hereby entered against all the defendants jointly and severally in favour of the plaintiff and the sum N500.000.00 being
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general damages for trespass committed by the defendants on the plaintiff’s piece of land?”
The apex Court per Ogundare J.S.C. in Bamgboye V. Olusoga (1996) LPELR 736 (SC) p.31 Paragraphs H ? A held:
?It is settled law, and this Court has so held times without number, that trespass is actionable at the suit of the person in possession of the land”.
The plaintiff herein has been able to show the Court by evidence that he is in exclusive possession of the disputed property. Exhibits tendered by the plaintiff speak for itself and go to show that the plaintiff does not in any way share his right of possession with any other person.
Therefore, the action by the defendants in respect of the land in question is proof of intention by them to possess property not entitled to them and the law frowns at such. It cannot be allowed.
I find no reason to fault the lower Court’s decision on this. We hold that it was proper, more so that Exhibit ‘A’ is a valid document as against Exhibit ?B’, and the disputed land contained in the layout is in the exclusive possession of the plaintiff/1st respondent and not the 9th and 10th
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defendants.
It was held in the case of Fagunwa V. Adibi (2007) 7 SCNJ 322 that:
“Title to land presupposes exclusive right to the land in the sense that the party does not share the allodial right of ownership with any other person. Ownership generally connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over property. The property begins with the owner and also ends with him unless he transfers his ownership of the of the property to a third party he remains the allodial owner.?
The argument put up by the appellant in respect of Exhibit B cannot stand.
I agree that it was made with the sole aim or dispossessing the plaintiff of his land. This issue is resolved against the appellant and in favour of the 1st respondent.
Having resolved all the issues in this case against the appellant, the result is that this appeal lacks merit and it is accordingly dismissed.
The judgment of the lower Court in suit NO. AK/207/1990 delivered by Hon. Justice A. Adetosoye on the 24th day of March, 2000 is hereby upheld.
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MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Danjuma, JCA.
?I am in agreement with him that the appeal be dismissed, all issues having been resolved in favour of the Respondents. I accordingly dismiss the appeal. The judgment of the lower Court in Suit No: CA/B/70/2005 is affirmed by me.
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Appearances
Faleyimu Vera (Miss)For Appellant
AND
Respondent’s counsel absentFor Respondent
