AARON OKORO MBUBU v. ANUKWAEJE OBORI & ANOR
In The Court of Appeal of Nigeria
On Thursday, the 11th day of July, 2002
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
IGNATIUS CHUKWUDI PATS-ACHOLONU Justice of The Court of Appeal of Nigeria
MICHAEL EYARUOMA AKPIROROH Justice of The Court of Appeal of Nigeria
AARON OKORO MBUBU (For himself and on behalf of the other members of Okoro Mbubu Family of Umuezeime Nkume Town) Appellant(s)
- ANUKWAEJE OBORI
2. FREDERICK OJINNAKA Respondent(s)
SYLVANUS ADIEWERE NSOFOR, J.C.A. (Delivering the Leading Judgment):- The appellants herein, qua plaintiffs in the Court of trial had claimed, as per paragraph 20 of the Amended Statement of claim jointly and severally against the defendants as follows:-
“1. N1, 000 (one thousand Naira) as General Damages for trespass
(ii) A perpetual injunction restraining the defendants by themselves, their agents, work men servants or privies from further trespassing into the land in dispute.”?
Written pleadings were ordered. They were filed, delivered and exchanged. The plaintiffs, subsequently, with the leave of Court filed amended pleadings. The case has, therefore, fought and contested on the issues, joined on the pleadings finally settled at the amended Statement of Claim, copied in pages 40 to 45 of the Record of Appeal and, the original Statement of Defence, copied in pages 21 to 25.
The case came on for trial before A. A. Ononuju, J. on the 9th of June, 1987, when the actual hearing started. Both parties testified and called the evidence of other witnesses. At the conclusion of all the evidence (both oral and documentary) and after receiving the final oral addresses by the counsel, the learned trial Judge reserved his Judgment.
In a reserved and well considered Judgment, the learned trial Judge dismissed the claim of the plaintiff in its entirety. Before reaching his conclusion, the trial Judge made far reaching findings of fact to wit: that (1) the land in dispute is situate in Okwudor within the Nkwerre/Isu Local Government Area and, (ii) the land in dispute was on a pledge, created by the father of the first defendant with the father of the first plaintiff (Aaron Okoro Mbubu).
The Facts:- Briefly stated, the case of the plaintiffs as pleaded, was that the land in dispute which they called “ALA OHIA EKE MBUBU” was situate in the Umuezeala Umuezime village in Nkume within the Nkwerre/Isu Local Government Area. The land was as depicted in their survey plan No. VEN/D52/85 dated 16th April, 1985 (Exhibit A). Thereon, the land has verged PINK. As the plaintiffs pleaded in their paragraph 7 of the Amended statement of claim, “the land in dispute originated from the family of the plaintiff who inherited the said land from his forefathers. The said land was the property of Nkume the founder of Nkume, town who was survived by four sons to wit “It was part of their case that on the death of Nkume the four sons shared his landed property and the land in dispute was the share of Ezime. The land, thereafter, devolved successively from one member of the plaintiffs’ family to the other until eventually, it passed over to Mbubu, of whose death the land devolved on Okoro Mbubu, as a result of the sharing of the lands amongst the four sons of Mbubu.
According to the plaintiffs, Okoro Mbubu (the 1st Plaintiff’s father) during his life permitted the sister Agnes Mgbanyi to farm the land in dispute. On the death of Okoro, his sons permitted Agnes Mgbanyi to continue farming the land in dispute. But in 1983, the plaintiff (Aaron Okoro Mbubu) cleared the land, cut down two Iroko trees on the land, and “bulldozed the land preparatory to setting up a hospital complex thereon. In September, 1st 1983 one Dr. Godwin, Uduji and Nicholas O. Mbubu were granted a certificate of Customary Right of Occupancy (Exhibit C) for a term of ninety-nine (99) years with effect from the 1st of December, 1983 by the Nkwerre/Isu Local Government, Authority in respect of the land. It was the plaintiffs’ case that on the 8th of October, 1983, the plaintiff (Aaron Okoro Mbubu) and some members of his family came to the land in dispute. They saw posted on the land a sign board. On the sign board was the inscription “land belonging to Umuenyimba Okwudor Community”. According to them, the 2nd defendant rushed into the land menacingly assaulted some of them including Uzoukwu Mbubu (P.w 2) for which the 2nd defendant was reported to the police and charged in Charged No. MNK/304C/83. The Charge is still pending in the Magistrate’s Court, Nkwerre.
Further more, as the plaintiff alleged, on the 16th of January 1984, the defendants, together with some thugs, planted some cassava plants on the land and deposited some white sand thereon preparatory to building on it.
As pleaded in paragraph 16 of the Amended statement of claim, “the defendants falsely claim that the land in dispute was pledged many years ago by Obori, the father of the 1st defendant to Okoro Mbubu, the father of the plaintiff for the sum of N24.00 (Twenty-four naira). In pursuance of the spurious claims of the defendants, the 1st Defendant has instituted Suit No. MNK/6/85 against the plaintiff at the Senior Magistrate’s Court Nkwerre claiming inter alias, for an order by Court that the plaintiff accepts from him the sum of N24. 00 which he descripted as redemption fee”.
The plaintiff denied there was a pledge of the land to his father or any attempts by the 1st defendant to redeem the pledge from either his father (Okoro Mbubu) before his death or, since after his death, from him.
According to the 1st plaintiff, Suit No. MNK/6/85 was a mere devise to contest the Charge No. MNK/304C/83. suit No. MNK/6/85 is still pending. The conduct of the defendants, is the plaintiff alleged, had put on hold the sitting of the hospital complex on the land in dispute. Hence the action:
The 1st defendant (Anukwaeje Obori) on his part set up a case parallel to the plaintiffs”.
According to him, the land in dispute is the “Ikpa Okwudor” land. And it is situate in the Umuenyimba village in Okwudor within the Nkwerre/Isu Local Government Area. The land is as shown on his survey Plan No. DS: 4111/IM2111OD/85 (Exhibit B).
In paragraph 8 of the statement of Defence, it was pleaded thus: –
“8. The defendants while not in a position to admit or deny the genealogy of the, plaintiffs, deny the other averments in paragraph 7 of the Statement of Claim. In further answer thereto the defendants aver as follows:-
(a) The land in dispute belonged to 1st defendant’s father; Obori (now deceased) who inherited same from a succession of his ancestors.
(b) Many years before the promulgation of the land Use Act, 1978, the said 1st defendant’s father pledged the land in dispute to one Okoro Mbubu father; of 1st, plaintiff in the presence of the 1st defendant and others for the sum of 12 (twelve pounds) or N24.00 (Twenty-four naira).
(c) Before the pledge Obori was owner in possession of the land and had exercised maximum acts of, ownership over the; land including farming the land and reaping the economic trees thereon.
(d) On the death of Okoro Mbubu the land in dispute passed to his sons including 1st (plaintiff).
(e) Obori aforesaid also died and the 1st defendant according to native law and custom of Okwudor succeeded him and became entitled to redeem the land.
(f) The 1st defendant made efforts and approaches to the sons of Okoro Mbubu including the 1st plaintiff and his senior brother now abroad to redeem the land but they persistently resisted redemption.
“9. Save that the plaintiffs have marriage relationships; the defendants deny the averments in paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of in further the statement of claim. In further answer thereto the defendants aver:-
(1) That some time in 1983 the plaintiffs with their hired agents cleared the land of bush and bulldozed the Iroko trees of the 1st defendant’s father which he inherited and other economic trees on the land preparatory to building contrary to the terms of the pledge that no permanent structure should be built on the land.
(ii) The 1st defendant who is a trader partly resident in the Cameroons was not at home but the 2nd defendant his caretaker went on the land and placed a sign post in protest.
(iii) When on a subsequent occasion the 2nd defendant noticed the plaintiff… On the land he protested but the plaintiff s instead of taking it kindly beat him up… and made a case of assault against him. The case is still pending at the Magistrate’s Court Nkwerre in MNK/304C/83.
“10. Further to paragraph 9 above the defendants aver that soon after the alleged assault the plaintiffs using their superior influence clandestinely and fraudulently obtained the spurious Customary Right of Occupancy referred to by the plaintiff.
“11. Save to admit that the defendants claim that the Land in dispute was pledged and that the defendants instituted Suit No. MNK/6/85 claiming for……… the defendants denies the averments in paragraph 16 of the Statement of Claim.”
According to the defendants, the plaintiffs claim is malicious and vexatious.
From the state of their pleadings, it seems clear to me that while parties to a land case may choose to call the land by different names for their own personal reasons or interests, quite a different consideration arises here, where each party alleges that the land in dispute is situate in a different location. While the plaintiffs assert that the land as situate in their Umuezeala Umuezime village in Nkume town, the defendants assert that the land is situate in Umuenyimba village in Okwudor town. And Okwudor and Nkume are two different locations. So, in my view, the situs of the land in dispute, no matter by what names it is called, is a live issue. Again and from the state of their pleadings, the Amended Statement of Claim calls for some explanations. It was not explained how the land in dispute “Originated from the family of the plaintiff” or, how Nkume became possessed of it, in the first place. The land cannot “Originate” in Nkume and, at the same time in Okwudor. It cannot be ubiquitous. No.
Now, a pledge of land arises, ex contractu, between the person called the pledgor and the other party called the pledgee.
Arising from the transaction, radical title to or in the land resides in the pledgor. The pledgee has, only, a temporary occupation licence or possession. So, having alleged a pledge, then, from the state of the pleadings again, it rests on the defendants, who assert it, to prove the assertion. Therefore, an issue arising from the state of their pleadings, next, is: Was the land in dispute ever on a pledge by the predecessor-in-title of the 1st defendant to the predecessor-in-title of the 1st plaintiff?
And here it becomes necessary for me to advert to the observation by the supreme court per Elias, C. J. N. at pages 30/32 in Agada okoriko vs. Ozo Esedalue (1974) 3 SC. 15. It repays my respectful quotation. Said the C.J.N.: –
“One invariable rule of customary pledge that can be gathered from reported cases is that the pledgee always goes into possession and has the right to put the land to some productive use. To that extent such use is a kind of interest due on the amount of the loan. The invariable nature of customary pledge which is perpetually redeemable is that the pledgee has only a temporary occupation licence and that he must yield up the pledged land as far as possible in the form he took it originally. This means that he must put it only to temporary use so that its return to the pledgee should be unencumbered in any way”.
Continuing at page 33 he said:-
“One other important point is that the pledgor’s right of redemption cannot be clogged in, any way by the pledgee such for instance as by demanding any amount in excess of the sum for which the land was originally pledged….. or by using other subterfuges to delay or postpone the pledgor’s or his successor’s right to redeem nor is lapse of time a bar to the exercise of the right of redemption for customary pledges of land are perpetually redeemable”.
Now, by alleging that the land in dispute was on a pledge to the 1st plaintiff’s father and predecessor-in-title, the defendants have admitted that the plaintiff was in possession. Section 146 of the Evidence Act Cap 112 Laws of the Federation, 1990, becomes relevant. It provides that, “when the question is whether any person is owner of any thing of which he is shown to be possession the burden of proving that he is not the owner is on the person who affirm that he is not the owner” Vide Dacosta vs. Stella Ikomi (1968) 1 All N.L.R. 3.94. The presumption of ownership is rebuttable.
The plaintiff’s were not happy with the decision by the Court of trial. They have, therefore, appealed therefrom to this Court, raising a total of six grounds of appeal. In this Court the plaintiff’s are the appellants the defendants are the respondents.
In compliance with the Rules, the parties have filed and exchanged their respective briefs of argument, wherein each formulated the issues for determination. At the hearing, learned counsel for the appellants had abandoned his issue No. vi together with the arguments thereon. They were, accordingly, struck out
In the Appellants’ brief, deemed filed on the 26/10/94, Counsel identified the following 6 issues namely:
“(i) Whether the Respondents proved pledge of the land in dispute to the father of the Appellant.
(ii) Whether the appellant was entitled to damages for trespass to the land in dispute since the Respondents conceded that he was in possession of the land in dispute at least up to the time the Plaintiff came to court.
(iii) Whether the trial Judge was correct in holding that the Appellant did not call as witnesses those Nkume people whose land he showed as sharing common boundaries with the land in dispute.
(iv) Whether the trial court is correct in holding that the land in dispute is surrounded by the land of Umuenyimba people of Okwudor.
(v) Whether Customary Right of occupancy covering the land in dispute and which was issued in favour of members of the family of the Appellants was properly obtained and lf so what, are the implications of possession of such a certificate in the circumstance.
(vi) (Abandoned and struck out).
(vii) Whether the Judgment of the trial court was based proper evaluation of the evidence tendered at the trial”.
In the Respondent’s brief, deemed filed on the 29/10/96, Counsel formulated the following issues for determination namely:-
2. Having regard to the pleading and evidence adduced at the hearing, whether the learned trial Judge was right in holding that the land in dispute is in Okwudor.
3.3. Whether the learned trial Judge was right in holding that the land in dispute was on pledge to the father of the Appellant.
3.4. Whether the Appellant was entitled to damages for trespass and an order of injunction.
3.5. (Withdrawn and struck out)
3.6. Whether having regard to the pleading and evidence the Respondent must prove their traditional history.
3.7. Whether the learned trial Judge properly evaluated the evidence of the parties”.
At the hearing, counsel had adopted their respective brief of arguments.
I have carefully considered the issues respectively formulated by the counsel. Whereas the principal issues are essential for the determination of a case, the subsidiary issues are formulations towards the elucidation of the principal issues. They cannot justifiably be regarded as issues for determination. In my view, the appellants, issues II, III, and V and the respondents issue No. 3.2. are germane and subsidiary to the principal issue; i.e. whether or not the land in dispute was on a pledge to the appellant’s predecessor-in-title. They may conveniently, therefore, be taken together with issue No. 1 of the appellants.
Counsel had contended in the Appellants’ brief, arguing issue No. 1 that the respondents failed to prove the pledge created by Obori with Okoro, the appellants predecessor-in-title. It was the ipsi dixit of the respondent. Learned Counsel on Issue No.3 had referred to the survey plan (Exh.A) and to paragraph 6 of the Statement of Claim and the evidence by the witnesses for the appellants thereon. It was contended that the learned trial Judge misdirected himself relying on section 148(d) of the Evidence Act in reaching his conclusion that the land was situate in Okwudor and not in Nkume Town,
In reply, Counsel in the Respondents’ brief referred, firstly, to paragraph 8 of the Statement of Defence and further to the Survey Plans (Exhibit A and B). The pleading in paragraph 6 of the Amended statement of Claim and Exhibit A confirm that the land in dispute was situating in Okwudor. Besides, Counsel contended that the witnesses for the appellants (P.ws. 2, 3, 4 and 5 ) were not the persons owning the lands shown in Exh. A as sharing common boundaries with the land in dispute. Counsel Justified the learned trial Judge’s reliance oh section 48 (d) of the Evidence Act.
The evidence by the P.w.1 at page 28 of the Record was that the land in dispute was situating in Nkume. He took the surveyor to the land to prepare Exh. A. He knew the boundaries. On the other land, it was the evidence by the D.W.1. At page 78 of the Record that the land in dispute was situate, not in Nkume but, in Okwudor. He, it was, who showed the features reflected in the Survey Plan (Exh. B) to the surveyor.
Besides the oral evidence by the parties, the learned trial Judge had both survey Plans (Exhibits A and B) before him. He saw them, examined them. On this issue of inspection of objects in evidence, Lord Macnaghton observed, “The eye no doubt is the best test. Generally but, not always, the comparison is enough”. Hennessey vs. Keating (1908) 42 I.L.T.R. 169 (S.L).
Based on the evidence before him the learned trial Judge had this to say at page 92 of the Record of Appeal.
“None of those mentioned in Exhibit A was called to give evidence that their lands share common boundaries with the land in dispute. They were not p.w.2, p.w.3, p.w.4 and p.w.5. The plan of defendant’s Exhibit B shows clearly that the land in dispute is surrounded by the land of Okwudor people. Exhibit A and Exhibit B are similar and identical and show almost the same features and boundaries. The plaintiff did not call as witnesses those Nkume people whose I and he shows that share common boundaries with the land in dispute and who sublet the portions of the land to Okwudor people. I do not believe the plaintiff. He is caught by section 148 (d) of the Evidence Act”.
Concluding, the trial Judge expressed himself at page 93 lines 1 to 5 of the Record as follows:-
“From the foregoing I am inclined to believe that the land is in Okwudor and not in Nkume and I so find as a fact”.
I had above commented on paragraph 7 of the Amended statement of Claim i.e. on the “Origination” of the land in dispute. I need not repeat it, etiam atque etiam, again and; again. No. And the above opens the door to me to examine the issue of pledge.
Now, to the evidence as led! Before I embark on the exercise, it behoves me to correct a certain impression given by the Counsel in the Appellants brief at, page 3. He wrote:- “One Mr. Ozoukwu Mbubu who the Respondents alleged to have witnessed the pledge testified as the p.w.2”. I have read the Record and particularly the evidence by the D.w.1 in-chief in pages 78 to 80 and his evidence in cross-examination in pages 80 to 81 of the Record. What was alleged in page 3 of the Appellant’s brief (supra), in my respectful opinion, cannot be ascribed to the 1st defendant. Neither the Statement of Defence nor his evidence bears that out.
Part of the evidence by the p.w.1 in-chief at page 28 lines 28 to 30 of the Record was:
“1st defendant sued me in the Magistrate’s court Nkwerre in respect of the land in the present dispute. The Land was never on pledge to my father for N12.00 (sic)”.
He continued in the same vein, still in-chief at page 48 lines 79 to 22 of the Record and, in lines 23 to 27, he added: –
“The story of pledge is false. When my father was alife (sic) they never came to talk about pledge. His father never talked about pledge in respect of the land in dispute”.
I, now, advert to the testimony by Uzoukwu Mbubu (P.W2). But did he really, testify to a pledge to Okoro Mbubu? Part of his evidence in-chief at page 52 lines 23 to 26 of the Record was:
“I was friendly with Okoro Mbubu and I buried him he my knowledge he did not tell me pledged the land in dispute to anyone”.
Cross examined, he testified at page 53 lines 10 to 74 thus:
“It is not true that long before the civil war, the father of the 1st defendant pledged the land to Okoro Mbubu for 12(pounds) or N24. There was no time 1st defendant came to redeem the land in dispute”.
On his part, testifying as the D.W.1, Joseph Anukwaeje Obori in-chief had stated at page 79 of the Record of Appeal, inter alias as follows: –
“Francis Agu had a cement wall on the fence at the boundary between his land and the land in dispute before the said land was pledged in 1947 for the sum of N24.00 for 12.00 (pound). I went with my father for the pledge and others. My father died about 1949 then I left for the Cameroons. After about three years and I came back and went to redeem the land in dispute with one of my brothers. After drinking palm wine the plaintiff’s father invited his brother called Uzochukwu Mbubu (p.w.2). Plaintiff’s father resisted redemption. When I came back the second time but he was sick. When the plaintiff’s father died his first son called Nicholas Mbubu was overseas when I went to redeem the land in dispute. When i got a letter to the effect that the son of the plaintiff’s father first had returned I approached the sons of the father of the plaintiff including the plaintiff to redeem the land in dispute but they resisted the redemption. In 1983 the plaintiff with hired agents cleared the land in dispute and bulldozed the Iroko trees on the land in dispute. The I sued the plaintiff and his people in suit No. MNK/6/85 for order of court for the acceptance of the pledge money. The plaintiff is not entitled to the claim. The land in disputed does not belong to plaintiff”.
Answering a question in cross-examination, the D.W.1 stated in page 81 lines 16 to 19 of the Record as follows:-
“The land in dispute has been on pledge to the plaintiff’s father. I have been making attempts to redeem the land in dispute from the plaintiff’s people three times to no avail. The story of redemption was not an after thought. I have been to the plaintiff’s people three times to redeem the said land before they locked the 2nd defendant in Police Prison at Nkwerre. The land in dispute is mine. Those having land around the land dispute are my people from Okwudor. My father farmed on the land in dispute with me before he pledges it to the father of the plaintiff”.
In his evidence as the D.W.2, Nze Oliver Duru, at page 83 of the Record stated inter alias:
“This trouble arose when one Aaron Okoro Mbubu and his people felled two Iroko trees on the land in dispute owned by the 1st defendant the owner of the land in dispute. The plaintiff deposited sand on the said land in preparation to build a hospital. The 2nd defendant planted a sign post on the land in protest. 1st defendant is kinsman of the 2nd defendant. He sent for the 1st defendant who returned and reported to Eze of Nkume who invited the plaintiff but he did not come”. Cross-examined, the D.w.2 testified at page 83 that the 1st plaintiff farmed on the Land in dispute but it was on pledge to him. He admit ted he had not farmed on the land in dispute but that his land shared a common boundary with it. See page 84 lines 1-2.
Now, what was the Learned Trial Judge’s treatment of the evidence? Before I embark on the discovery, it is worth remarking that belief or disbelief is a mental reaction to facts proved in evidence, their probability or, improbability within the con of the surrounding circumstances of the case. As Aristotle observed many years ago “Probability had never been caught bearing false testimony”. In our system, Issues of fact, evaluation of evidence credibility of witnesses and ascription of probative value to such evidence – by no means dependent on the number of witnesses, – are matters within the exclusive competence of the trial court, the court that sees hears , watches and believes. In any given case, therefore, much will depend on which side the learned trial Judge believed.
Now, would it most probably be that the appellants of Nkume town within a separate and distinct autonomous community would “inherit” or be in possession of a land in Okwudor, also within a separate autonomous community, which land they (appellants) had not purchased or gifted to them and, which land has not “Originated” in Nkume?
Writing at page 93 of the Record, the learned trial Judge expressed himself, inter alias: –
“As agreed and as given in evidence Nkume and Okwudor two different autonomous communities… There is no evidence that people from each town can own land by inheritance in another town. Such owners therefore must be based on either pledge or sale. The defendant’s case is that the said land is on pledge for the sum of N24.00 (12 pounds) by the father of the 1st defendant to the father of the plaintiff in the plaintiff in 1947. 1st defendant’s father died in 1949. The defendant lives mostly in the Cameroons where he carries on business as a trader. Plaintiff did not admit he pledge or outright of the land in dispute. I do not believe him. I rather believe that the 1st defendant’s spoke the truth when he told court that the land is his father’s land ….which his father pledged to the father of the plaintiff in 1947 for the sum of N24.00”.
In my respectful opinion, the finding and conclusion above, supported by evidence which was believed conclusively settled the issue.
Issue No (ii).
Arguing this issue, counsel in the Appellant’s Brief referred at page 4 of the brief to the appellant’s pleading wherein the trespass alleged and complained of was averred. He called attention to and relied on the testimony of the appellant (p.w.1) on the 9th of May, 1988 under Re-examination at page 51 of the Record in confirmation of the trespass alleged.
As the counsel further contented, trespass was a wrong against possession. Assuming the land in dispute is on a pledge yet the appellant would none-the-lees be entitled to damages for trespass and an injunction to prevent, further acts of trespass by the respondents. Counsel cited for support and in support of the contention the cases of Awooner Renner vs. Annan 2 W.A.C.A. 258 per Dean, C.J., and Etowa Enang vs. Fidelis Ikor Aju (1981) 11 – 12 SC 25 at p 48.
Replying, counsel for the respondents at page 13 of the Respondent’s brief contended that there being a pledge of the land as found, the appellants’ act in cutting the Iroko trees, bulldozing the land to build a hospital complex thereon, amounted to acts in excess of their right as pledges and their act constituted acts of trespass, ab initio.
The appellant’s acts on the land were acts of waste. Reliance was placed on the dictum per Idigbe, J.S.C. in Okagbue vs. Romain (1982) 5 S.C. 133 at PP. 144-148.
Besides, it was further contended that it was not proved that the respondents did cultivate the land with cassava or carried white sand to the land. The appellants could not rely on their own acts of trespass to rely a claim for damages for trespass against the respondents; Counsel, further, contended.
Continuing, it was the contention of Counsel in the Respondent’s Brief that the appellants by their avowed acts of trespass were clogging the respondents’ right of redemption.
Now, this case was fought and contested on the pleadings. I have duly considered the Counsel’s contentions in their respective briefs.
Since this case was fought on the pleadings, I shall now advert, firstly, to the pleading Paragraph 15 of the Amended statement of claim is very relevant. It read: –
“15. On the 16th of January 1984 the Defendants in the company of well armed thugs forced their way into the land in dispute and cultivated the land in dispute and planted their cassava sticks thereon. Later on the same day they deposited several trips of white sand thereon……..”
(The underlining is supplied for emphasis)
Now, to the Statement of Defence! I had earlier on in this Judgment reproduced paragraph 9 of the Statement of Defence. It is relevant. But I shall decline to reproduce it over and over again.
Trespass is actionable, “dies in diem”. Yes. What was evidence relied on by the Counsel for the Appellants in proof of the alleged trespass? The evidence was reproduced at page 4 of the Appellants’ Brief by the P.w.1. at page 51 lines 28/29 of Record. That evidence read:-
“The defendants planted cassava on the land in dispute tipped sand thereon in 1983”.
Now, whereas the alleged trespass complained of and pleaded in or by paragraph 15 of the “Amended Statement of Claim (supra), took place on the “16th of January, 1984” but the P.W.1 confirmed on oath that the trespass took place in “1983” then immediately, there occurred a violent conflict- (contra- dicere) -between the case as pleaded and the evidence, as led and relied on. The legal consequence is notorious. There was, therefore, no evidence, legally; to establish the alleged trespass. Needless for me citing authorities that the evidence by the appellants went to no issue. So, “Cadit quaestio”, the matter ends here” No further need arises for me considering the contentions or arguments by the Counsel in the Respondents brief.
All I have been trying to say above, perhaps imperfectly, have, in my respectful opinion, covered all the Issues as identified by the appellants. I shall proceed, now, to record my resolution of the issues formally.
Issues Nos. (1), (3) and (4) are, each, resolved affirmatively. And Issues No. (2) And (5) are, each, answered in the negative. The grounds of appeal from which each of the issues was distilled, therefore, failed, they are dismissed.
In sum, the appeal had no ghost of Chance to succeed. It ought to be dismissed. I, therefore, affirm the decision by the court below on the 23rd of March, 1991 and do hereby dismiss the appeal accordingly. There shall be costs in favour of the respondents against the appellants assessed at N5, 000.00.
IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.: I have read the judgment of my learned brother Nsofor J.C.A. and I agree with his conclusion. His analyses of the issues are exiting. I am amply satisfied that there was a pledge which despite the efforts of the respondents to redeem, the appellant appeared resistant to these attempts, and strove by concocted facts to convert the pledge into a full blown ownership.
The appeal obviously lacks merit and is hereby dismissed with costs to the respondents assessed at N5, 000.00.
MICHAEL EYARUOMA AKPIROROH, J.C.A.: I read in advance the lead judgment just delivered by my learned brother NSOFOR, J.C.A. and I agree entirely with his reasoning and conclusion.
The appeal lacks merits and I too dismiss it and affirm the decision of the court below. I abide by the order made as to cost.
- C. Ogu with Ogu R. C.For Appellant
- C. DuruFor Respondent