MICHAEL ONUBE v. A.T. ASUAKOR & ORS
(2019)LCN/12980(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/J/68/2009
RATIO
WHETHER A RELIEF CAN BE CLAIMED EVEN IF IT WAS NOT CLAIMED
It is however the law that even though a relief is not claimed, it can be granted if it is a consequential relief or order. The concept is to protect and give effect to substantive order of Court and prevent future litigation on account of the public policy that there must be an end to litigation.
In Akinbobola v Plisson Fisko (Nig) Ltd (1991) 1 NWLR (Pt. 167) 270, 288, Nnaemeka Agu, JSC, stated:
a consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from and inevitably consequent upon it. It must be giving effect to the judgment.PER JOSEPH EYO EKANEM, J.C.A.
CONSEQUENTIAL ORDER: WHETHER THEY NEED TO BE CLAIMED BEFORE THEY ARE GRANTED
A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the Court.? See also Noekoer v Executive Governor of Plateau State (2018) 16 NWLR (Pt. 1646) 481, 495.
Where a defendant is found liable in trespass, the Court can issue a consequential order of injunction though not claimed. See Briggs v Chief Lands Officer (2005) 12 NWLR (Pt. 38) 89, 81 82.PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
MICHAEL ONUBE Appellant(s)
AND
1. A.T. ASUAKOR
2. BENUE STATE URBAN DEVELOPMENT BOARD
3. TERFA AKOR
4. ATTORNEY GENERAL, BENUE STATE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Benue State holden in Makurdi (the trial Court) in Suit No. MHC/268/2006 delivered on 28/1/2009. In the judgment, the trial Court (per J.S. Ikyegh, J., now JCA) found in favour of the 1st respondent (as plaintiff) and entered judgment in his favour against the appellant (as 2nd defendant) and the 2nd respondent (as 1st defendant).
?The facts of the case leading to this appeal are as follows: The 1st respondent claims to be the holder of a deemed right of occupancy over a parcel of land situate behind New Unity Bank Plc, Bank Road, Makurdi, (the land in dispute). He had round huts on the property and replaced some of them with a block building of four rooms. The appellant, according to the 1st respondent, trespassed on the land. Subsequently, men of the 2nd respondent visited the land and after measuring it concluded that the block building or a part of it fell into the access road earmarked for the community. The 2nd respondent served the 1st respondent an abatement/demolition notice threatening to demolish the
1
structure. Four months later, the 2nd respondent, by a team headed by 3rd respondent, demolished the block building.
Consequently, the 1st respondent took out a writ of summons against the appellant and 2nd ? 4th respondents accompanied by a statement of claim which was amended by order of Court, claiming the following reliefs:
?(a) A declaration that the demolition of the Plaintiff?s compound on plot BN 10265 by the 1st, 2nd and 3rd Defendants on 15/6/2006 was wrongful and malicious.
(b) A declaration that the Plaintiff is entitled to compensation both for the 5ft of the property allegedly earmarked for the public use of an access road and for the value of the entire destruction carried out on the property.
(c) An order for payment of N791,500.00 as value of the building structures on the Plaintiff?s plot and a mature umbrella tree.
(d) The sum of N1,000,000.00 as General Damages for loss of user and disturbance of the Plaintiff arising from the 1st and 2nd defendant?s conduct?.
The appellant and 2nd ? 4th respondents filed a joint statement of defence denying the claim of the 1st respondent.
2
After trial and taking of addresses, the trial Court, as earlier stated, entered judgment in favour of the 1st respondent.
Aggrieved by the decision, the appellant filed a notice of appeal and additional grounds of appeal within time.
At the hearing of the appeal on 6/3/2019, E.N. Tionsha, Esq. for the appellant adopted and relied on appellant?s amended brief of argument which was filed on 15/12/2017 in urging the Court to allow the appeal.
Iveren Billo, Esq. for the 1st respondent adopted and relied on the 1st respondent?s brief of argument which was filed on 19/4/2018 in urging the Court to dismiss the appeal.
E. Enyikwola, Esq. (Assistant Director ? Citizens? Right, Ministry of Justice, Benue State) for 2nd ? 4th respondents informed the Court that no brief of argument was filed on their behalf. He therefore had nothing to urge.
In the appellant?s brief of argument, the following issues are formulated for the determination of the appeal:
?1. Whether having regard to the substance of the complaint of the 1st respondent which is verged on compensation to be paid to him
3
for the actions of the 2nd respondent, the High Court of Benue State presided over by Hon. Justice J.S. Ikyegh had jurisdiction to entertain the suit? Ground 4 of the Notice of Appeal.
2. Whether the findings of the lower Court that appellant?s fence encompassed 1st respondent?s Mango tree, that the 1st respondent?s evidence is uncontroverted on the issue of encroachment etc are not perverse and liable to be set aside by this Court on appeal? Ground 2 of the Notice of Appeal.
3. Whether the lower Court was right to have ordered the Appellant to remove part of his fence and in granting order of perpetual injunction against the appellant for acts of trespass when the reliefs were not claimed, the area/land defined and the lower Court had earlier refused an application to include the said reliefs during the course of trial? Ground 3 of the Notice of Appeal and Grounds 1 and 3 of the Additional Ground of Appeal.
4. Whether the lower Court was right when it relied heavily in its judgment against the appellant on unpleaded facts and inadmissible evidence in respect of encroachment of 1st respondent?s land by the appellant? Grounds 2 of Additional Grounds of Appeal.
4
5. Whether the lower Court was right when it held in its judgment that the demolition of the 1st respondent?s structures was illegal? Ground 5 of the Notice of Appeal.
6. Whether the judgment of the lower Court can be supported having regard to the weight of the admissible and credible evidence before the lower Court? Ground 1 of the Notice of Appeal?.
In her brief of argument, 1st respondent?s counsel adopted the issues above.
I shall be guided by the issues in determining the appeal.
Before looking at the merits of the issues, it is necessary to take a second look at issue 5. It is a complaint against the decision of the trial Court that the demolition of the 1st respondent?s structures was illegal. This finding of the trial Court was made against the 2nd respondent only. It was not made against the appellant. Rather the trial Court exonerated the appellant in that regard in the following terms:
?The 2nd ? 4th defendants have tangential link with the said demolition exercise, so I dismiss the case in respect of the demolition exercise in their favour see page 135 of the record of appeal?.
5
Since the case touching on the demolition was dismissed in favour of the appellant (apart from others) and only the 2nd respondent was found liable in that regard, the appellant can not appeal against the finding as he is not aggrieved. Section 243 (1)(a) of the Constitution of Nigeria, 1999 (as amended) which gives a right of appeal to a party to civil procedings must be understood to apply to an aggrieved party.
In Mobil Producing (Nig) Unlimited V Monokpo (2003) LPELR ? 1886 (SC) 24 and 25, the Supreme Court held that a party to proceedings can not appeal against a decision which has not deprived him of any right as such a party is not an aggrieved party. See also Attorney ? General of the Federation V ANPP (2003) 15 NWLR (Pt. 844) 600, 643.
Consequent upon the foregoing, I hold that ground 5 of the notice of appeal is not competent. I accordingly strike out the same along with issue 5 distilled therefrom.
Of the remaining issues, I intend to first take issue 1 as it raises an issue of jurisdiction. Thereafter I propose to deal with issues 2, 4 and 6 together as
6
they all relate to evaluation of evidence. Lastly, I shall consider issue 3. I shall however make modifications to the couching of the issues for grammatical fidelity and for the purpose of brevity.
ISSUE 1 Whether or not the trial Court had jurisdiction to entertain and determine the suit.
Appellants counsel submitted that the trial Court had no jurisdiction to entertain the suit which, she contended, verges on the issue of compensation to be paid to the 1st respondent for the demolition of his property. Citing the case of Omomeji V Kolawole (2008) 14 NWLR (Pt. 1106) 180 among other cases, counsel further submitted that this Court is entitled to entertain the issue of jurisdiction though it is a fresh issue. She stressed that the substance of 1st respondent?s claim is failure to prescribe and pay any compensation to him for the demolition by the 1st (sic: 2nd) respondent. She argued that the proper body to approach is the Land Use and Allocation Committee of Benue State pursuant to Sections 47 (2) and 2(2)(c) and (3) of the Land Use Act.
1st respondent?s counsel submitted that the facts and reliefs
7
in the suit are proprietary, tortuous and constitutional and therefore within the trial Court?s jurisdiction in Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). She added that nothing in Section 2(2)(c) and 2(3) (a) or any other provision of the Land Use Act seeks or has the effect of limiting the wide jurisdiction of the State High Court. She contended that Sections 29 and 30 of the Land Use Act operate in 1st respondent?s favour as they enjoin the Government if it intends to revoke a deemed right (of occupancy) to first undertake the evaluation and compensation procedure prescribed therein. She submitted that 2nd respondent?s failure to comply with those provisions amounted to a breach of Sections 43 and 44 of the Constitution of Nigeria, thus giving the 1st respondent a cause of action.
Counsel stated that the issue of jurisdiction is a fresh issue and that the Supreme Court has shifted position to hold that such an issue can only be raised with leave of Court. He called in aid Jov v Dom (1999) 9 NWLR (Pt. 620) 547 and Tiza V Begha (2005) 5 NWLR (Pt. 917) 184. She took the position that it has not been
8
shown that the Land Use and Allocation Committee has exclusive powers to determine issues affecting compensation.
RESOLUTION
Jurisdiction is the authority or power of a Court to adjudicate on a cause or matter before it or take cognizance of a matter presented before it in a formal way for its decision. It is circumscribed by the statute creating the Court or by the requirement of a law that prescribes a condition precedent for the invocation of the jurisdiction of the Court. See Ndaeyo v Ogunnaya (1977) 1 SC 11, Aladejobi V NBA (2013) 15 NWLR (Pt. 1376) 66, 81 and Nduul V Wayo (2018) 16 NWLR (Pt. 1646) 548, 578.
It has been held that jurisdiction is the blood that gives life to the survival of an action in a Court of law and that without jurisdiction an action will be like an animal that has been drained of its blood, which will cease to have life. See Shitta ? Bey V Attorney ? General of the Federation (1998) 7 SCNJ 264, 274. Where a Court lacks jurisdiction, the proceedings, no matter how well conducted and decided, is a nullity.
?The issue of jurisdiction, that is substantive jurisdiction, can be raised at any stage of a
9
case, including the Supreme Court, with or without leave of Court. It can be raised viva voce or formally. It can be raised by any of the parties or even the Court suo motu provided the parties are given an opportunity to address on it. In Omomeji V Kolawole supra, cited by appellant?s counsel, the Supreme Court stated as follows:
?This Court, in a number of decisions, made several pronouncements on the inevitability of allowing issue of jurisdiction to be raised for the first time even without the need for any leave since this Court is a Court of last resort. This is so, in order to allow ends of justice meet and prevent obvious miscarriage of justice?.
The same consideration applies to all Courts including this Court in respect of the issue of jurisdiction as the Court has a bounden duty to bring an end to any proceeding commenced in a Court that has no jurisdiction over the proceedings. See also the recent cases of Bajehson V Otiko (2018) 14 NWLR (Pt. 1638) 138, 151, Ikpekpe V Warri Refinery and Petrochemical Co. Ltd (2018) 17 NWLR (Pt. 1648) 280, 291 and FCDA V Nzelu (2014) 5 NWLR (Pt. 1407) 56.
10
1st respondent?s counsel submitted that the Supreme Court has in a long chain of cases shifted position on whether or not the issue of jurisdiction can be raised without leave of Court. The submission can not be correct in view of old and recent decisions of the Supreme Court. Again, counsel seems to have blurred the distinction between substantive jurisdiction and procedural jurisdiction. The former, which is one arising in the form of a constitutional limitation or other limitations imposed by a specific law, can be raised at any stage of litigation with or without leave of court. The latter, id est, procedural jurisdiction must be raised timeously. An example of the latter is non?service of pre-action notice. See Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187, 219 and Mobil Producing (Nig) Unlimited V LASEPA (2002) 18 NWLR (Pt. 798) 1, 36. What has arisen in this appeal is an issue of substantive jurisdiction which can be raised at any stage of the case with or without leave of Court.
The case of Jov v Dom supra cited by 1st respondent?s counsel does not support the position taken by her. What the Supreme Court laid emphasis on in that case was
11
the necessity of hearing the other side on the issue. The Supreme Court even went ahead to find that there was no merit in the issue and held that the trial Court had jurisdiction.
As regards the case of Tiza V Begha supra. (also reported in (2005) LPELR -3251), the decision of the Supreme Court as contained in the lead judgment of Musdapher, JSC (as he then was) was that the Court of Appeal had no jurisdiction over the appeal as it did not raise any question of customary law and the National Assembly did not make any law extending the jurisdiction of the Court of Appeal. His Lordship at page 19 of the electronic report held that,
?I do not think it is necessary for me to consider and deal with any other issue or points raised in the appeal?.
Uwais, JSC (as he then was) Onu, JSC, Katsina ? Alu, JSC (as he then was) and Kalgo, JSC, agreed with the lead judgment. Therefore the comment of Kalgo, JSC, relied upon by 1st respondent?s counsel was an obiter dictum. In any event, the weight of judicial authority leans heavily against the position taken by 1st respondent?s counsel.
12
I find therefore that the issue of the jurisdiction of the trial Court has been properly raised.
To determine the issue of jurisdiction, the Court is to examine the claim of the plaintiff as set out in the writ of summons and statement of claim. This must be examined in the light of the law giving jurisdiction to the Court. Where the claim falls within the jurisdiction of the Court, the Court must assume jurisdiction. Where it does not, the Court must decline jurisdiction. See PDP V Sylva (2012) 13 NWLR (Pt. 1316) 85 and TSK Nig. Ltd V Otochem Nig. Ltd (2018) 11 NWLR (Pt. 1630) 330.
The case of the 1st respondent before the trial Court, at the pain of repetition, was that he is the owner of a deemed right of occupancy over the land in dispute and the buildings thereon; that the 2nd ? 3rd respondents demolished his block building on the ground that part of it fell into an access road; that no compensation was paid to him. The case of the 1st respondent was basically on trespass and wrongful demolition of his building without payment of compensation. The case therefore falls squarely within the wide jurisdiction of the State High Court donated by Section 272 of the
13
Constitution of Nigeria, 1999 (as amended). It has nothing to do with Section 2(2) (c) and 30 of the Land Use Act, 1978.
Section 2 (2)(c) of the said Act provides:
?There shall be established in each State a body to be known as ?the Land Use and Allocation Committee? which shall have responsibility for
(c) determining the disputes as to the amount of compensation payable under this Act for improvements on land?.
Section 30 of the same Act provides:
Where there arises any dispute as to the amount of compensation calculated in accordance with the provisions of Section 29, such dispute shall be referred to the appropriate Land Use and Allocation Committee?.
For an understanding of the purport of Section 30, it is necessary to set out the provisions of Sections 28(1) and 29(1) of the same Act. They are as follow:
Section 28(1)
It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.?
Section 29(1)
If a right of occupancy is revoked for the cause set out in
14
paragraph (b) of Sub-section (2) of Section 28 or in paragraph (a) or (c) of Sub ? section (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements?.
The purport of Section 30 of the Act is that where there is any dispute as to the amount of compensation that a holder or occupier, whose right of occupancy is revoked under the provisions set out in Section 29(1) supra., is entitled to the dispute as to the amount payable shall be referred to the appropriate Land Use and Allocation Committee. This is also the thrust of Section 2 (2)(c) of the same Act.
Certainly the claim of 1st respondent is not that there is a dispute as to the amount of compensation he is entitled to for his unexhausted improvement on account of revocation of his deemed right of occupancy. It is rather for compensation, i.e, damages for the wrongful demolition of his building which lies in the tort of trespass. 1st respondent?s reliefs also bring this out clearly. The foundation of 1st respondent?s case is not that his deemed right of occupancy has been revoked which would then raise the question of the amount of
15
compensation he is entitled to thus bringing it under Section 2 (2)(c) and 30 of the Act.
The effort of the appellant to drag those provisions into this appeal is in vain.
I therefore resolve issue 1 against the appellant.
ISSUE 2, 4 and 6.
-Whether or not the findings of the lower Court that the appellant?s fence encompassed 1st respondent?s mango tree, that the 1st respondent?s evidence is uncontroverted on the issue of encroachment are not perverse and liable to be set aside.
-Did the lower Court rely on unpleaded facts and inadmissible evidence in holding that the appellant encroached on 1st respondent?s land?
-Is the judgment of the trial Court supportable regard being had to the weight evidence?
Appellant?s counsel submitted that the finding of the trial Court that the appellant admitted in cross ? examination that his fence encompassed 1st respondent?s mango tree and that his (1st respondent?s) evidence on encroachment was uncontroverted and uncontradicted were perverse and unjustifiable. Also perverse, according to her, was the heavy reliance by the trial Court on
16
unpleaded and inadmissible evidence to find appellant liable. She contended that evidence that appellant?s fence encompassed 1st respondent?s mango tree was not based on any pleaded fact. Citing the case of Owena Bank Plc v Olatunji (2002) FWLR (Pt. 124) 529 counsel submitted that evidence extracted under cross ? examination but not covered by pleading is inadmissible.
Counsel stated that the issue of encroachment by the appellant had been challenged and controverted. She noted that the grievance of the 1st respondent was not about alleged encroachment but the demolition by 2nd respondent; so encroachment did not feature in the reliefs.
She submitted that the trial Court relied on inadmissible evidence, viz; Exhibits A, D, E, E, (a), H and I to reach its conclusion. This, she said, is because the documents are public documents of which only certified true copies are admissible as secondary evidence. She urged the Court to expunge them from the record. She went on to posit that allegation of encroachment on 1st respondent?s property verge on commission of crime and the standard of proof is proof beyond reasonable doubt. It was
17
her contention that 1st respondent?s evidence did not meet that standard. It was her final submission that short of the unpleaded and inadmissible evidence, the trial Court could not have arrived at the decision it did.
For the 1st respondent, it was submitted that a party is not enjoined to plead evidence but facts. Counsel for 1st respondent referred to paragraph 8 of the amended statement of claim and submitted that the evidence on the mango tree (of the 1st respondent being encompassed by appellant?s fence) went to support the averment therein.
Counsel submitted that the judgment of the trial Court was properly drawn from the evidence adduced and therefore should not be disturbed.
RESOLUTION
Evaluation of evidence and ascription of probative value to it are primarily the functions a trial Court. This is because of its singular opportunity of hearing the witnesses and watching their demeanor as they testify, thus making it most suitable to assess their credibility. An appellate Court would not interfere with the finding of a trial Court based on the credibility of witnesses. Where the nature of a case is such
18
that the evaluation would not entail the assessment of the credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts, and from contents of documentary evidence, the appellate Court is in as vantage a position as the trial Court to evaluate or re?evaluate the evidence and make its findings. See Woluchem v Gudi (1981) 5 SC 291, Mogaji v Odofin (1978) 4 SC 91 and Anyanwu v Uzowuaka (2009) 13 NWLR (Pt. 1159) 445.
When an appellant complains that the judgment of a trial Court is against the weight of evidence, he is simply saying that when evidence adduce by him is balanced against evidenced adduced by the respondent, the judgment in favour of the respondent is against the weight which should have been given to the totality of the evidence before the Court. See Abisi v Ekwealor (1993) 6 NWLR (Pt. 302) 643 and Uwaifo v Uwaifo (2005) 3 NWLR (pt. 913) 479.
Five factors are considered in determining the weight of evidence, to wit;
(a) Admissibility
(b) Relevance
(c) Credibility
(d) Conclusiveness and
(e) Probability of the evidence. See Osigwe v Unipetrol (2005) 5 NWLR (Pt. 918) 261.
19
I must pause here to state that it seems from a close reading of the averments in the amended statement of claim and the reliefs sought therein (which have already been set out in this judgment) that the alleged trespass by the appellant in 2001 was not ventilated in the reliefs claimed by the 1st respondent. The claim for a declaration that the demolition of 1st respondent?s compound was wrongful and malicious is the principal claim. All the other reliefs including relief No. (d) for general damages for loss of user and disturbance flow from that claim.
In deed, the trial Court acknowledged this by recognizing at page 125 of the record that ? ?the ? issue is whether the demolition of the structure was legal nevertheless, I shall hold my peace as there is no ground of appeal challenging the finding of the trial Court in respect of trespass by the appellant in 2001.
The trial Court held at page 136 of the record that:
?The 2nd defendant admitted under cross examination that part of his fence encompassed a mango tree in plaintiff?s adjoining portion of land. The uncontradicted
20
evidence on the side of plaintiff also proved the encroachment. With these pieces of uncontroverted evidence, I find the act of protrusion of 2nd defendant?s fence inside part of the plaintiff?s land an act of trespass?.
The complaint of the appellant in regard to the above is that,
(i) the fact elicited in cross ? examination as to part of his fence encompassing 1st respondent?s Mango tree was unpleaded; and
(ii) the evidence of 1st respondent on encroachment was challenged and contradicted.
I shall start with the first complaint. Under cross ? examination, the appellant (as DW2) stated that
?My fence by?pass plaintiff?s soak?away pit and encompasses his mango tree? ? page 102 lines 27 and 28 of the record.
The pleading of the 1st respondent on this point is as follows:
?The plaintiff lived peacefully on the property until in the year 2001, when one Michael Onube a staff of the 1st defendant assumed encroachment of the said plot BN 10265 by extending a block wall fence into it and also by destroying economic trees thereon.? (Underling mine for emphasis)
21
As rightly submitted by appellant?s counsel, it is the law that evidence of unpleaded facts elicited in cross-examination goes to no issue. See Owena Bank Plc v Olatunji (2002) FWLR (Pt. 124 LRCN 1130, 1158. Nevertheless, what the law requires that should be pleaded are primary facts. The plea of ?extending a block wall fence into? 1st respondent?s land is the primary fact of trespass. The fact elicited in cross?examination as to the appellant?s fence encompassing the 1st respondent?s mango is either:
(i) evidence of the material or primary fact of trespass or
(ii) secondary or subordinate fact of the trespass.
The law does not require and even forbids the pleading of evidence and does not require the pleading of subordinate facts which are the means of proving the material facts. See G. S Pascutto v Adecentro (Nig) Ltd (1997) 11 NWLR (Pt. 529) 467, 491, Okereke v Onuh (1999) 68 LRCN 962, 990, Okonkwo v Okolo (1988) 2 NWLR (Pt. 79) 632, 653, Okafor v UBN Plc (2000) 3 NWLR (Pt. 647) 43, 47 ? 48 and Abah v Jabusco (Nig) Ltd. (2008) 3 NWLR (Pt. 1075) 526, 546.<br< p=””
</br<
22
The trial Court was therefore right in relying, in part, on the evidence under review to find against the appellant in trespass.
I now turn my attention to the second complaint, viz; that the evidence of the 1st respondent on encroachment contrary to the trial Court?s finding was challenged and contradicted. The appellant in paragraph 5 of the joint statement of defence averred thus;
?5. The defendants in response to paragraphs 8 and 9 of the statement of claim state that the 2nd defendant did not assume encroachment of the property of the plaintiff rather the land and survey discovered and informed the plaintiff that it was the plaintiff that indeed encroached on the 2nd defendant?s land.? (Underlining mine for case of reference).
The 1st respondent as PW2 testified as to the appellant encroaching on his plot. The appellant as DW2 testified in ? Chief as follows:
?I know that the plaintiff assumed encroachment of my land and he was informed according by Ministry of Lands and Survey in that regard in 2006.? See Par. 4 of his written deposition at page 23 of the record of appeal.
23
In paragraph 5, he stated
?I did not destroy the plaintiff?s economic trees as alleged.?
As can be easily seen, appellant?s evidence above is silent on his averment in the joint statement of defence that he did not encroach on 1st respondent?s property. Any averment in a pleading not supported by evidence is deemed abandoned and must be struck out ? Olarewaju v Bamigboye (1987) 3 NWLR (Pt. 60) 353 and Kaydee Ventures Limited v The Hon. Minister of Federal Capital Territory (2010) 7 NWLR (Pt. 1192) 171, 204. I therefore strike out the underlined portion of paragraph 5 of the appellant?s statement of defence.
The trial Court was again right in the holding that the evidence of the 1st respondent on encroachment was uncontroverted.
Appellant?s counsel urged the Court to expunge Exhibits A, D, E, E (a) H and I for being inadmissible documents. Exhibit A is an original copy of a revenue collector?s receipt No. 728663 issued to 1st respondent, Exhibit D is a site plan, Exhibit E is a primary or original copy of a letter addressed to the Director of lands by 1st respondent dated
24
26/3/2002; Exhibit H is a primary or original copy of a letter written by Emmanuel A Iorkem, Esq. of Paul R. V Belabo & Co, a firm of Solicitors to the appellant, Exhibit I is a letter of Amuwa Olatunde & Co, a firm of Solicitors on behalf of appellant to Paul R. V Belabo & Co in its primary form. Exhibits A and E being original copies of public documents were admissible in that state without the need for Certification. See Kabau v Rilwan (2014) 4 NWLR (Pt. 1397) 284, 311, 312, 317 and 328. Exhibit D, H, and I are private documents in their primary form and are therefore admissible in that state without the need for certification. Exhibit E (a) is not a part of the Exhibits transmitted to this Court and so I am not in a position to express any opinion on it. I see no reason to expunge the said exhibits.
In any event the trial Court?s judgment was not based on those exhibits and so their admission or otherwise has no effect on this appeal. See Section 251 (1) and (2) of the Evidence Act.
?It was also submitted that the allegations of encroachment and destruction of 1st respondent?s property verge on commission of crime for which the standard of proof is
25
proof beyond reasonable doubt. 1st respondent?s counsel took a contrary stance. I shall only restrict myself to the case of encroachment since the destruction of 1st respondent?s property does not affect the appellant as I have earlier held. The case on encroachment does not verge on commission of crime. It rather verges on the tort of trespass. The standard of proof required was therefore one of balance of probabilities and it is my view that the 1st respondent met that standard.
I therefore resolves issues 2, 4 and 6 against the appellant.
ISSUE 3 –
Whether or not the trial Court was right to have ordered the appellant to remove part of his fence and in granting order of perpetual injunction against the appellant for acts of trespass when the reliefs were not claimed, the area of land not defined and the trial Court had earlier refused the said reliefs during the course of trial.
Appellant?s counsel contended that it was unjustified for the trial Court to give the appellant 60 days to remove part of his fence overlapping the 1st respondent?s portion of land and to
26
grant an order of perpetual injunction restraining the appellant from committing further acts of trespass. She submitted that the case of Okoye v Chief Lands Officer of Rivers State of Nigeria (2005) 4 SCNJ 158 relied upon by the trial Court in making the order complained against is not on ?all fours? with the facts of the instant matter. This, she said, is because the case of Okoye was for a declaration of title while the instant matter was substantially for compensation for demolition. It was her further contention that the 1st respondent did not establish the specific identity of the area of land to which his claim relates. It was her position that the order was not a consequential order as the trial Court had earlier refused a motion on notice to include the same reliefs in the further amended statement of claim.
The response of counsel for the 1st respondent was tucked into her argument on issues 2 and 4 instead of issue 3. I will however not disregard the argument as that would be undue technically. Counsel submitted that the order of perpetual injunction was consequential in nature and made by the Court to protect its judgment. She posited that the case of
27
Okoye v Chief Lands Officer of Rivers State of Nigeria supra. relied upon by the trial Court was apt. She argued that a case of trespass was disclosed and the remedy was perpetual injunction whether or not claimed.
RESOLUTION
The trial Court found against the appellant in trespass and awarded the sum of N30,000:00 as general damages in favour of 1st respondent against him. The trial Court thereafter ordered as follows.
Also by way of consequential orders the 2nd defendant is given 60 days from today to remove part of his fence over lapping the plaintiff?s portion of land and a perpetual injunction is hereby issued against 2nd defendant from committing future or further acts of trespass in the plaintiff?s abutting portion of land.
The trial Court relied on Okoye v Chief Lands Officer of Rivers State of Nigeria supra to found the order.
There is no doubt that the reliefs granted by the trial Court were not claimed by the 1st respondent. It is the general rule that the Court has no power to award to a plaintiff that which he has not claimed. See Ekpenyong v Nyong (1975) 2 SC 71, 80.
28
It is however the law that even though a relief is not claimed, it can be granted if it is a consequential relief or order. The concept is to protect and give effect to substantive order of Court and prevent future litigation on account of the public policy that there must be an end to litigation.
In Akinbobola v Plisson Fisko (Nig) Ltd (1991) 1 NWLR (Pt. 167) 270, 288, Nnaemeka Agu, JSC, stated:
a consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from and inevitably consequent upon it. It must be giving effect to the judgment?
A proper consequential order need not be claimed but a substantive order must be claimed and sustained from the facts before the Court.? See also Noekoer v Executive Governor of Plateau State (2018) 16 NWLR (Pt. 1646) 481, 495.
Where a defendant is found liable in trespass, the Court can issue a consequential order of injunction though not claimed. See Briggs v Chief Lands Officer (2005) 12 NWLR (Pt. 38) 89, 81 – 82.
Contrary to the submission of appellant?s counsel, the fact that the claim in Okoyes case supra
29
was for declaration of title which is not the case in this instance is of no moment as what the Court in that case sought to do was to protect the plaintiff from further acts of trespass as the defendants had acquired the status of a trespasser on account of losing the case.
The submission that the 1st respondent did not establish the specific identity of the area in dispute to which his claim relates can not be taken seriously as no issues were joined in regard to the identity of the land in dispute.
In paragraph 4 of the amended statement of claim, the respondent pleaded thus:
The plaintiff is the deemed Right holder of the Property measuring 27. 60m x 22.00m x 26. 30m and 23. 60 covering an area of 0.062 HA situates behind New Unity Plc Bank Road, Makurdi.
In the joint amended statement of defence, it is averred in paragraphs 3 and 4 as follows:
3. The defendants state that the plaintiff is not the deemed Right Holder of the land situate behind New Unity Bank Plc (Bank of the North) as stated in paragraph 4 of the statement of claim.
4(a) The defendants in denying paragraphs 4, 5 and 6 of the
30
statement of claim state that the plaintiff?s father never settled on the land since 1965 hence the plaintiff could not have acquired the property by family allotment or by inheritance.
(b) The land was virgin as at 1977 and so the plaintiff could have put up round hut(s) structures on the land talkless of replacing them.?
It is clear from the foregoing that the appellant did not contest the identity, dimension and location of the land. He only contested the 1st respondents claim of ownership of the land. For identity of land in dispute to be in issue, a defendant must join issues on it in his statement of defence. This is not the case in this instance. See Fatuade v Onwoamanam (1990) 2 NWLR (Pt. 132) 322, Ogun v Akinyelu (2004) 18 NWLR (Pt. 905) 362, Falomo v Onakanmi (2005) 11 NWLR (Pt. 935) 126, Otanma v Youdubagha (2006) 134 LRCN 362 and Atanda v lliasu (2013) 6 NWLR (Pt. 1351) 529.
The mere fact that the trial Court refused an application to further amend the statement of claim to include the reliefs that were eventually awarded as consequential orders is of no moment. This is because what was refused was an
31
application for amendment and not the reliefs which are consequential in nature. The refusal of the application did not change the character of the reliefs, to wit; consequential orders which the trial Court had inherent power to make.
I therefore resolve issue 3 against the appellant.
On the whole, having resolved all the issues against the appellant, I come to the inexorable conclusion that the appeal has no merit. I accordingly dismiss it and affirm the judgment of the trial Court against the appellant.
I assess the costs of the appeal at N100,000:00 against the appellant in favour of the 1st respondent
JUMMAI HANNATU SANKEY. J.C.A.: I was privileged to have a preview, in draft, of the well-researched Judgment of my learned brother, Joseph Eyo Ekanem, J.C.A.
In his distinctive fashion, his lordship has methodically and meticulously examined and addressed all issues which are germane for consideration in this Appeal.
?I agree with the reasoning and conclusions reached in the Judgment, and anything else I add would amount to nothing but repetition, replication and tautology.
32
Suffice it to say that I also find no merit in the Appeal. It fails and is dismissed. I abide by the Orders in the Judgment, inclusive of the Order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I had read before now the draft copy of the Judgment just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, dismissing this appeal. I agree completely with the reasoning and conclusions of my Learned Brother. The appeal is without merit. I also dismiss the appeal and affirm the judgment of the lower Court. I abide by the orders made, including the order as to costs.
33
Appearances:
E. N. Tionsha, EsqFor Appellant(s)
Iveren Billo, Esq. for 1st Respondent.
E. Enyikwola, Esq (Assistant Director-Citizens’ Right, Ministry of Justice, Benue State) for 2nd-4th RespondentFor Respondent(s)
Appearances
E. N. Tionsha, EsqFor Appellant
AND
Iveren Billo, Esq. for 1st Respondent.
E. Enyikwola, Esq (Assistant Director-Citizens’ Right, Ministry of Justice, Benue State) for 2nd-4th RespondentFor Respondent
