ACCELERATED EDUCATIONAL SERVICES LTD. & ANOR V. PRINCE EKPO OKANG EKPO & ANOR
(2012)LCN/5570(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2012
CA/C/77/2010
RATIO
LAND LAW: IMPLICATION OF A CLAIM FOR TRESPASS AND INJUNCTION
It is noted that apart from the claim for declaration of title by both parties in their respective claim and Counter claim, they have also sought order of injunction and damages for trespass. The implication of a claim for trespass and injunction is that the claimant has put title in issue; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562. PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: AT WHAT POINT WILL THE BURDEN OF PROOF SHIFT TO THE DEFENDANT
the law requires that the plaintiff must first of all prove his case with cogent, credible, concrete and compelling evidence before the burden will shift to the defendant. See Elias v. Disu (1962) 1 All NLR 214. After all the position of the law remains that a plaintiff cannot rely on the weakness of the case of the defence except where the defendants’ case supports that of the plaintiff. See Ihekoronye v. Hart (2000) 15 NWLR (Pt. 692) 840. PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: ATTITUDE OF THE APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE
The law generally is that it is the trial court that is in preeminent position to evaluate evidence being the court that saw, heard and observed the demeanour of the witnesses, and the appellate court will not ordinarily interfere with the findings of the trial court. See: Agbabiaka vs. Saibu (1998) 7 SCNJ 305; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12. The principle to be followed in evaluating evidence in a civil case is that, the trial judge after a summary of all the facts, must put them on an imaginary scale, weigh one against the other and decide which one weighs more and apply the law thereto. See: Mogaji v. Odofin (1978) 3 SC 91.  An appellate court will have a duty to interfere with the trial court’s findings and itself evaluate the evidence where the trial court has inadequately evaluated the evidence. See Woluchem V. Gudi (1981) 5 SC 219; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Abisi v. Ekwealor (pt. 302) 643. PER ISAIAH OLUFEMI AKEJU, J.C.A.
DAMAGES: NATURE OF GENERAL DAMAGES
General damage is awarded in a deserving case as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person. It is therefore the compensation which the law presumes as flowing naturally from the defendants’ conduct and the quantum needs not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See: Odulaja v. Haddad (1973) 11 SC 357; Osuji v. Isiocha (1989) 3 NWLR (pt. 111) 613. PER ISAIAH OLUFEMI AKEJU, J.C.A.
DAMAGES: CIRCUMSTANCES THE APPELLATE COURT WILL INTERFERE WITH THE AWARD OF DAMAGES BY THE TRIAL COURT
The trial court has the discretion to award general damages and the appellate court will not readily interfere with the award. The appellate court will however interfere where it is shown that:
(a) the trial court acted under a mistake of law or disregard of principles
(b) the amount awarded by the trial court is ridiculously too high or too low;
(c) the award has been based on consideration of irrelevant matters in disregard of relevant matters, and injustice would be occasioned unless the appellate court interferes.
(d) the amount awarded was an erroneous and unreasonable estimate having regard to the circumstances of the case.
See: James v. Mid-Motors (1978) 12 SC 31; Ezeigbe v. Agbolor (1993) 9 NWLR (pt.316) 128. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. ACCELERATED EDUCATIONAL SERVICES LTD.
(ACCESS SCHOOLS)
2. MR. GABRIEL UMODEN – Appellant(s)
AND
1. PRINCE EKPO OKANG EKPO
2. CYRINUS EDET EFFIONG BASSEY
(For themselves and as representing The ADOHOSE Family of Big Qua, Calabar) – Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division, delivered on 5th June, 2009 in Suit No. C/246/96, which the respondents as plaintiffs commenced through the Writ of Summons filed on 16th May, 1996 for the reliefs averred as follows in paragraph 13 of the Further Amended Statement of Claim filed on 31/3/2009:
“1. A declaration that the plaintiffs are entitled to a Statutory Right of Occupancy over all that parcel of land lying, being and situate at Njahasang village in Big Qua Town, Calabar.
2. A mandatory injunction compelling the Defendants by themselves, agents, or privies to remove from the plaintiffs land forthwith the walls and other structures erected thereon as part of the defendants’ sports stadium complex.
3. A perpetual injunction restraining the defendants, their servants, agents or privies from howsoever trespassing into the said land.”
4. The sum of N30,000,000.00 (thirty million naira) being general damages for trespass.
The defendants’ (now appellants) Statement of defence filed on 14th April, 1997 was amended, and further amended by the Further Amended Statement of Defence/Counter Claim filed on 26th October, 2005. The following reliefs were sought by way of counter claim:
1. AN ORDER OF PERPETUAL INJUNCTION restraining the plaintiffs, their servants, agents and privies from entering or interfering with the Defendants’ land situate at Otop Otop Layout, Atimbo Calabar, Cross River State of Nigeria.
2. A DECLARATION that the Defendants are entitled to a Statutory Right Occupancy (sic) over all that piece of land known as Plots No. 71-74 and lying, situate at Otop Otop Layout, Atimbo, Calabar.
3. The sum of N10 Million Damages jointly and severally against the plaintiffs being damages for trespass.”
The respondents filed Reply and Defence to Counter Claim on 11th December, 2001. At the conclusion of pleadings, oral evidence was adduced. The respondents called one witness as PW1 while the appellants called two witnesses as DW1 and DW2. In the judgment delivered on 5th June, 2009 the learned trial judge granted the reliefs of the respondents in the following terms as stated on page 154 of the record of appeal:
“1. It is hereby declared that the plaintiff are entitled to a statutory Right of Occupancy over all that parcel of land lying, being and situate at Nyahasang village in Big Qua Town, Calabar more particularly described in a survey plan made by R.F. Uko, Licensed Surveyor dated 23-1-78 admitted as exhibit 1 in the proceedings.
2. An order of mandatory injunction is hereby issued compelling the Defendants by themselves, agents or privies to remove from the plaintiff land forthwith the walls and other structures erected thereon as part of Defendants sports stadium complex.
3. An order of perpetual injunction is hereby granted restraining the Defendants by themselves, their servants, agents or privies from Howsoever trespassing into the said land.
4. The sum of N2 million General damages for trespass is hereby awarded in favour of plaintiffs against the Defendants.
5. Cost of N20,000.00 is also awarded in favour of the plaintiff against Defendants, and
6. Defendants Counter Claim against the plaintiffs is hereby dismissed for being lacking in merit”.
Dissatisfied with the judgment the defendants (appellants) filed Notice and Grounds of Appeal on 13th July, 2009 raising 10 grounds of appeal. The Appellants’ Brief of Argument filed on 30th November, 2010 was amended by the Amended Appellants’ Brief of Argument filed on 26th September, 2011 but deemed filed on 19th March, 2012. The following issues were formulated for determination:
1. Whether Respondents properly pleaded their root of title, predicated on traditional history, and if they did (which is denied), whether they led evidence in proof thereof or any other method of proof of title? Grounds 1, 2 & 4).
2. Whether Respondents proved with certainty the quantum and identity of the land in dispute, regard being had to their pleadings, oral evidence and survey plans to justify the injunctive and declaratory reliefs awarded to them? (Grounds 3 and 5).
3. Whether the learned trial judge properly appraised and evaluated the oral evidence of the parties against the rigid yardsticks of both their pleadings and documentary evidence and made proper findings and inferences, and if he did not, whether the omission or failure did not lead to a perverse verdict? (Ground 8).
4. Whether having regards to the pleadings of Appellants, their evidence and the submissions by Respondents the learned trial judge was right in dismissing Appellants’ Counter Claim?
5. Whether in all events the award of N2,000,000.00 as general damages in favour of Respondents can be justified?
The Amended Respondents’ Brief of Argument filed on 3oth December, 2010 was deemed on 20th April, 2012. The Respondent distilled two issues for determination as follows:
1. Whether the Respondents as plaintiffs proved their case of trespass.
2. Whether the trial learned judge was right to dismiss the appellants’ Counter Claim.
The two issues raised by the respondents are embedded in the appellants’ five issues. I will adopt the issues formulated by the appellant for purpose of determination of this appeal.
The learned counsel for the appellant, Dafe Diegbe Esq. submitted on issue one that the averment of the respondents in paragraphs of their Further Amended Statement of Claim does not amount to a proper pleading of traditional history and the evidence adduced by the PW1 fell short of evidence of traditional history, counsel relied on Ali vs. Alesinloye & Ors. (2000) 4 SC (Pt. 1) 111; Dike & Ors. V. Okoloedo & Ors. (1999) 7 SC (Pt. 111) 35. According to counsel, the respondents did not plead and did not give evidence of who were their forefathers that founded the land, how he got there, and how the land devolved on them in recent times.
It was contended that the learned trial judge was not right to have held that the respondents’ survey plan was evidence of possession and ownership of the land in dispute. The five methods of establishing title to land were stated by counsel with the decision in Idundun v. Okumagba (1976) 9 & 10 SC 277 cited in support, and contended that a party who relies on one method will succeed or fail on the method unless such a party amends his pleadings, citing Eze & Ors. V. Atasie & Ors. (2000) 6 SC (Pt. 1) 214.
It was further contended that the respondents pleaded traditional history as their source of title, and could not rely on long possession as basis for their claim of ownership of the land because they did not plead and proof long possession and the trial judge did not make any finding of proof of title by the respondents by acts of long possession which is required in a claim for title. It was therefore misdirection for the learned trial judge to have held that the respondents were entitled to a declaration of title based on the finding that their survey plan was evidence of possession and ownership of the land.
The second issue in the appellants’ brief still touches on the proof of the respondents’ claim and is related to the above issue and issue no. 1 in the respondents’ brief.
The contention of the learned counsel is that the survey plan tendered as exhibit 1 by the respondents was not consistent with their oral evidence on the description and identity of the land in dispute particularly on the boundary to the east and the south of the land and the learned trial judge was not right to have found that the boundaries of the land were correctly described by the PW1 in his evidence in chief and that the land is known to both parties. It was further contended that the identity of the land in dispute was an issue because while the respondents asserted that it was located at Njahasang village, appellants asserted that where they built was at a place called Otop Otop in Atimbo, and exhibit 7, a survey plan of the respondent shows that Atimbo and Njahasang are distinct and different places.
On the three survey plans tendered by the Respondents as exhibits 1, 6 and 7 the learned counsel contended that they ascribed different sizes to the land in exhibits 1 and 6 while exhibit 4 agreed with exhibit 6 but exhibit 1 puts the land as 38.4 hectares, exhibit 6 puts it as 39 hectares while exhibit 4 describes it as 39.138 hectares. The totality of these is that the respondents did not establish the extent of the land with certainty.
It was submitted that a party claiming a declaration of title to land and an injunction must prove the extent and the boundaries of the land for which he claims the declaration and injunction with certainty, clarity and precision, and where he fails to do so, the court must dismiss the action. The cases of Iordye v. Ihyambe (2000) 12 SC (Pt. II) 126; Eze v. Atasie (supra); Elias v. Omo Bare (1982) 5 SC 25; and Adesanya v. Aderounmu (2000) 6 SC (Pt. II) 18 were cited in support.
In the Amended Respondents’ Brief of Argument, the respondents’ counsel argued the two issues raised therein together and contended that the respondents proved their case of trespass and the trial court was right to have dismissed the appellant’s counter claim.
The learned counsel contended that the finding of the trial court cannot be faulted, having been based on the evidence before it. On trespass, counsel cited Echere v. Ezirike (2006) All FWLR (pt. 323) 1997 Bangboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520; Fagunwa v. Adibi (2004) All FWLR (Pt. 226) 340.
It was submitted that it is not in all claims for trespass and injunction that title is in issue, title will be in issue where a defendant claims to be the owner of the land. Nsirim v. Nsirim (1995) 9 NWLR (Pt. 418) 144. It was contended that the issue of ownership of the respondents’ land was never challenged in the pleadings while the testimony of the PW1 was not controverted under cross examination. It was then submitted that although the law generally is that a plaintiff must succeed on the strength of his own case, this principle will not apply where the case of the defendant supports that of the plaintiff. Adesanya v. Aderounmu (2009) 9 NWLR (Pt. 672) 370.
Counsel contended that the plaintiffs’ case has been that the land granted the defendants by the George Duke family is limited to plots 71-74, and this was buttressed by the evidence of the DW2. He submitted that the issue in dispute in the case is trespass, and exhibit 17 tendered by the appellant relied upon in aid of the trespass, counsel cited Mil. Gov. Lagos v. Adeyiga (2003) 1 NWLR (Pt. 802) 599.
It was submitted that the respondents had established the boundaries of the land as contained in exhibits 6 and 7 they tendered, and cited Adepoju v. Oke (1993) 3 NWLR (Pt. 954) 154 where according to counsel, it was held that where plaintiff tenders a survey plan as evidence of the land in dispute and it was admitted in evidence without objection and the defendant failed to file a counter plan, the defendant cannot be heard to contend that the plaintiff did not prove the boundaries of the land with certainty. He contended that the cases cited by the appellants’ counsel are distinguishable from the instant case and did not apply.
It was submitted that the success of claim for trespass is not tied to the success in a claim for declaration of title; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt. 771) 29.
Issue no. 3 argued by the appellant’s deals with the evaluation of the evidence by the learned trial judge.
The appellants’ counsel contended that apart from recounting the testimonies of the witnesses the trial court did not make any appraisal or evaluation of the evidence of the parties. It was further contended that the conclusion of the learned trial judge that the boundaries of the entire land correspond with the description by PW1 in his evidence in chief is a product of an improper appraisal or evaluation of the evidence. It was contended that the learned trial judge failed to specify the aspect of the appellants’ case that supported the respondents’ case and on which the respondents could rely, and without a proper appraisal of the evidence, this conclusion by the learned trial judge was misplaced; CCB (Nig) Plc v. Okpala (1997) 8 NWLR (Pt.518) 673.
The contention of the appellants is that while the appellants pleaded and testified that the land they allegedly entered into was acquired by them from the family of late Senator Victor Akan that had acquired same from Henshaw family, the respondents did not deny that fact, but merely stated that the appellants went beyond the portion granted to them and encroached unto their own land.
The learned counsel referred to exhibit 3 which he said shows that Henshaw family had laid claim to the piece of land where the respondents built their sports complex which is the subject-matter of the action. Since the respondents were alleging that the appellants exceeded the area granted to them by Henshaw family, the burden was on them to prove with accuracy this assertion by stating with certainty and precision the extent of their land encroached upon, which they failed to do.
The contention of the appellants on their fourth issue is that the trial court was not right to have dismissed the Counter claim. It was argued that since the assertion of the respondents is that the appellants exceeded what was granted to them and encroached on their land, the burden was on the respondents to prove their assertion. The learned counsel submitted that the title to the disputed land being in issue and respondents could not prove title but entered unto the land and broke part of the wall fence erected by the appellants, the trial court ought to have granted all the reliefs in the appellants’ Counter claim.
The appellants contended that title to the land in dispute was in issue and the respondents failed woefully to proof their entitlement to the land but admitted that they entered the land in dispute which was in possession of the Appellants; the trial court ought to have granted the reliefs in the appellants’ Counter claim.
The argument of the learned counsel for respondents in respect of the dismissal of the appellants’ counter claim is on pages 8-9 of the record. It was argued that the learned trial judge rightly dismissed the Counter
Claim of the appellants having found that the appellants trespassed into the land of the respondents. Reference was made to the evidence of the DW1 and DW2.
The award of N2,000,000.00 as general damages in favour of the respondents is the 5th issue set down by the appellants.
It was contended that there was no evidence to substantiate the claim for general damages of N30,000,000.00 and the court could only exercise the discretion to award nominal damages; Umuma v. Ohyuraiwe (1978) 6-7 SC 1. The award of damages was not based on available evidence as respondents’ witness, PW1, did not testify that the head of family died as a result of trauma arising from prosecution which was the basis for the award while there was no evidence that the respondents were put into any form of expenditure by virtue of trial at the magistrate’s court. It was submitted that though the award of general damages is at the discretion of the court, any award based on irrelevant consideration as in the instant case will be set aside; West African Shipping Agency vs. Kalla (1978) 3 SC 21.
The respondents’ Counsel submitted that the N2,000,000.00 awarded by the learned trial judge was not excessive, perverse and unjustifiable because the learned trial judge found that the defendants caused the arrest of plaintiffs’ principal members and put the plaintiffs into some financial expenditure. The case of Unipetrol v. Adireje W/A Ltd. (2004) All FWLR (Pt.231) 1238 was cited.
In the Amended Appellants’ Reply Brief, the learned counsel argued that the first issue in the respondents brief did not arise in the appeal because there was claim for declaration of title, trespass and injunction by the respondents and Counter Claim for similar reliefs by the appellants, making the issue of title to be the primary issue raised by the pleadings.
Having not filed a cross-appeal, a respondent cannot formulate issues outside the appellants’ ground of appeal.
It was contended that appellants did not admit paragraph 5 of respondent’s Statement of claim in whole as alleged but limited the admission to only a part thereof that has nothing to do with the land in dispute. Counsel submitted that the specific averments and material traverse in appellants’ pleadings show a dispute over the land, citing Arisons Trading & Eng. Co. Ltd. v. The Military Governor, Ogun State (2009) All FWLR (Pt. 496) 1819. A court is not to consider a paragraph of the Statement of defence in isolation but in conjunction with other paragraphs so as to ascertain the issues joined in the pleadings; Ugochukwu vs. Cooperative and Commerce Bank Ltd. (1990) 7 SCNJ 2235, Pan Asian African Co. Ltd. vs. NICON (Nig) Ltd. (1982) 9 SC 1.
Issues 1, 2 and 3 in the appellants’ brief (amended) are about proof of the respondents’ claims and/or evaluation of evidence by the trial court. I will take them together with the relevant part of the respondents’ brief.
The facts upon which the respondents relied for their claim are in the following relevant paragraphs of the Further Amended Statement of claim (pages 60-62 of the record).
“5. The Adohose Family through its Otu Effiom unit have been owners in possession from time immemorial of all that piece or parcel of land situate at Njahasang village Big Qua Town, Calabar and bounded in the north by the Federal Government Girls College, Calabar (which partly sirs on plaintiffs’ land) to the West by the Calabar International Airport, to the East by the Atimbo marshlands and to the South by the SSS Headquarters and Odidem Ekpongigo family land. At the trial, the plaintiff shall lead traditional evidence of ownership and other acts of possession of the said land.
6. The said land is more particularly described in Survey Plan No. RIM/11421 made on the 23rd of January 1978 by R. F. Uko licensed surveyor and therein marked red. The said plan shall be found upon at the trial of this action.
7. The plaintiff subsequently parceled the land into plots in survey plan no. JEJ/CR/MISC/19837 made by Chief J. E. J. Asuquo licensed surveyor on 23rd January 1985. At the trial the plaintiff shall rely upon the said plan.
8. On or about the 1st day of February, 1996 the defendants without let or hindrance broke and entered into the plaintiffs’ land reserved for the proposed daily market and committed diverse acts of trespass thereon consisting mainly in bulldozing, digging up and excavating the said land and causing damage to the plaintiffs’ economic crops especially cassava and palm trees thereon.”
In their Further Amended Statement of Defence, (pages 17 – 23 of the record) the appellants as defendants denied the respondents’ (plaintiffs) pleadings and averred as follows inter alia:
“2. The Defendants’ admit paragraph 5 of the Statement of Claim only to the extent that the 2nd defendant is the Chairman, Board of Governors/Governing Council of the 1st Defendant’s institution.
3. Paragraph (sic) 7 to 10 of the Plaintiffs’ Statement of Claim is however denied.
In Further answer to same, the Defendants state that they are not in occupation of any Land belonging to the Plaintiff and neither have they ever broken into or trespassed into any land belonging to them.
14. The Defendants therefore deny paragraph 10 of the Plaintiffs’ statement of claim and state that it was the Plaintiff who broke into their land which they validly became sized of via legitimate assignment and further state that they have never broken into any land belonging to the Plaintiffs.”
In the course of evidence the PW1 who testified for the plaintiff stated at page 74 of the record thus inter alia:
“The land has been owned by Otu Effiom Family from time immemorial. The family is from Big Qua Town, Calabar. We have always exercise (sic) right of ownership over the land. The land is surveyed. The Land was surveyed by R. F. Uko (1978) a Licensed Surveyor. We have a copy of the survey plan.” and at page 79 that “On 1-2-95, the Defendant without let or hindrance broke into our family land and committed some acts of trespass, through excavation of earth, destruction of economic tress e.g. Palms and cassava.”
For the defence, the DW1’s evidence at page 95 of the record is that:
“It is not true that the Defendants encroached into the plaintiff land at the place where the stadium is built. The Etubom Henshaw’s family presently headed by Chief Inameti Duke Henshaw assigned plots 71-74 Otop Otop layout to the late Senator Victor Akan and it was done via a Deed of conveyance. The Administrators of Late Akan’s Estate assigned the same plots 71 and 74 to members of the family who in turn assigned the plots to 1st Defendant.”
It is an age long principle of law that a party seeking a declaration of title to land must establish his claim by cogent and credible evidence which preponderates or out weights that of the other Party. Such a party must rely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Odu (1935) WACA 336; Akinola v. Oluwi (1962) 1 SCNLR 352; Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (Pt. 7) 393; Awara v. Alalibo (2002) 2 NWLR (Pt. 7) 393.
Another trite principle applicable in land cases is that title to land may be established in any of the following five ways:
1. by traditional evidence;
2. by production of document of title;
3. by acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the owner.
4. by proof of ownership of connected or adjacent land in circumstances rendering it probable that the owner of the connected or adjacent land would be the true owner of the land.
5. by acts of long possession and enjoyment of the land.
See Idundun v. Okumagba (1976) 6-9 SC 227; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511; Kyari v. Alkali (2001) FWLR (Pt. 60) 1481.
It must be restated that the five methods are separate and independent; and a claimant needs not establish more than one of them to succeed in his claim. See Ekpo v. Ita (1932) 11 NLR 68. However a plaintiff who relies on a particular mode but fails to establish that mode, or source of title cannot rely on long possession or any act of ownership to proof title.
See Ibenye v. Agwu (1998) 11 NWLR (Pt. 574) 372; Balogun v. Akanji (1988) 1 NWLR (Pt. 79) 301; Fasoro Beyioby (1988) 2 NWLR (Pt. 76) 263. In Registered Trustees of the Diocese of Aba vs. Nkume (2002) FWLR (pt. 90) 1270; Kutigi JSC (as then was) explained the position at Page 1287 thus:
“It is settled, law that where a party’s root of title is pleaded as for example a grant, a sale, or conquest, etc, that root of title has to be established first, and any consequential acts following thereon can then properly qualify as acts of ownership. Where the title pleaded has not been proved, then it will be unnecessary to consider acts of possession for the acts then become no longer acts of possession but acts of trespass.”
In the instant case the (Plaintiffs) respondents rely on the fact that their Adohose family through its Otu Effiom unit have been owners of the land in dispute from time immemorial and have always exercised right of ownership over the land. According to the respondents, the land is surveyed, and they tendered exhibit I as the product of the survey. Thus the main root of title of the respondent is based on traditional history.
It is a cardinal principle of law that a party who relies on traditional history or evidence for proof of title to land cannot plead merely that he and his predecessors had owned and possessed the land from time immemorial. The party must go further to plead and proof the facts relating to:
(a) Who founded the land?
(b) How the land was founded; and
(c) Details of intervening owners through whom the party claims. See: Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283; Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610.
Let me add that a party relying on acts of possession and ownership as proof of title must establish such acts that are numerous, positive and long enough to lead to a conclusion that such a party owns the land. One such act or a few isolated acts will not suffice; Idundun v. Okumagba (1976) 6-10 SC 246; Piaro v. Tenalo (1976) 12 SC 31.
It is noted that apart from the claim for declaration of title by both parties in their respective claim and Counter claim, they have also sought order of injunction and damages for trespass. The implication of a claim for trespass and injunction is that the claimant has put title in issue; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562.
The question to be settled is who among the two rival claimants can be said to have met the criteria for the grant of declaration, injunction and damages for trespass?
Before answering this question, I should state another principle that is significant and material in an action of this nature, and it is that the identity of the land must be clearly established before a declaration of title can be granted thereon. Temile v. Awani (2001) FWLR (Pt. 62) 1937; Babatola v. Alaworoko (2001) Vol. 5 MJSC 17; Otanma v. Youdubagah (2006) 2 NWLR (Pt. 964) 337, (2006) All FWLR (Pt. 300) 1579.
It is noted that the respondent in their Further Amended Statement of Claim had referred to the land in dispute as located at Njahasang village Big Qua Town, Calabar. The respondents however specifically averred in paragraphs 8 and 9 in respect of the disputed land as follows:
“8. On or about the 1st day of February 1996 the defendants without let or hindrance broke and entered into the plaintiff’ land reserved for the proposed daily market and committed diverse acts of trespass thereon consisting mainly in bulldozing, digging up and excavating the said land and causing damage to the plaintiff’ economic tress especially cassava and palm trees thereon.
9. When the plaintiff discovered the acts of trespass aforementioned they caused to be placed on the land an “Mgbe” emblem which is a traditional and customary cautionary sign that the defendants have encroached upon the plaintiffs land…
On the other hand, the appellants in their Further Amended Statement of Defence stated in paragraph 5 that:
“5. The Defendants state that the lands which the 1st Defendant’s institution generally occupies are located at Otop Otop layout for which the Head lessors are the Etubom George Duke Henshaw Family of Atimbo, Calabar.”
They however specifically averred in paragraphs 11 and 12 that:
“11. The Defendants state that upon successfully securing their Agreement to assign the land and consent from the Duke Henshaw Family for the transfers, they took possession of the land and started development grading and construction work in furtherance to the establishment of their sports complex project.
12. The Defendants state that to their greatest surprise and extreme shock upon reaching and advanced state in their construction work, the plaintiff and their agents suddenly showed up on the land, illegally forced their way thereon to plant “Mgbe” (i.e. juju) and started destroying their buildings on the false claim that the Defendants’ newly acquired land belonged to them.”
It is laid bare from the above pleadings which were also stated in evidence that both parties acknowledge that the land in dispute is that portion where the appellants were constructing sports complex on which the respondents had placed the traditional “Mgbe” and allegedly destroyed the appellants’ property. I have no doubt that the parties know the location of the land in dispute as well as its identity not withstanding that they describe it by different or divergent names. In the circumstances, the issue of proof of the land can no longer be in controversy. See Osho v. Ape (1998) 8 NWLR (Pt. 562) 492.
As I had stated earlier in this judgment the source of the respondents’ title is that their family has been owners of the land in dispute from time immemorial, but in their pleadings and evidence they have fail to meet the standard set down for proper pleading and proof by a party relying on traditional evidence.
On their own part, the appellants claimed to have acquired the land from the Administrators of the Estate of Late Senator Victor Akan by assignment to the 1st defendant being plots 71-74 among the parcel of land conveyed to Senator Victor Akan by Etubom George Henshaw family who were the original owners of the land. The DW1 tendered copies of three documents as exhibits 11, 12 and 13 being the relevant Deeds of Assignment of the land. The DW2, Inameti George Duke Henshaw was secretary of George Duke Henshaw family. He corroborated the evidence of conveyance and assignment of the land as given by the DW1 and further tendered exhibits 17 and 18, the copy of a survey plan made by D. A. Aniyom dated 19/11/75 and copy of deed of conveyance dated 26/6/75 respectively.
All the above documents were tendered and admitted without any objection and they are genuine and valid; duly executed stamped and registered; the grantor therein had the authority and capacity to make the grant; the grantor had the land granted to the grantee and the documents have the effect claimed by the holder. They are therefore capable of being relied upon by the appellants for their claim of title to the land covered by them. See Romanie v. Romanie (1992) 4 NWLR (pt. 238) 650; Ngene vs. Igbo (2000) a NWLR (pt. 651) 131.
There were before the learned trial judge two competing claims in respect of the same piece of land. The respondents as plaintiffs relied on traditional evidence which they failed to plead and prove as required by law while the appellants relied on authenticated and valid documents of title to establish their claim. In such circumstance it is a person who has successfully established better title that should get judgment.
Apart from their unsatisfactory traditional history the respondents had relied on their survey plan exhibit 1 as evidence of their act of ownership and being on the land from time immemorial. On the purpose of a Survey Plan in a claim of title to land, Adamu JCA (now Ag. PCA) stated in the case of Obiche v. Adetona (2009) All FWLR (pt. 478) 345 at 372 that:
“It is pertinent to point out as earlier stated, that mere proof of the area in the dispute which in present case was said to be done by tendering a survey plan or a composite plan, does not of itself alone constitute evidence of title or ownership of the land (i.e. the two plots) in dispute unless of course the plans are used to show one of the methods of proving title by evidence of ownership of an adjacent land.”
I agree with the above position that tendering a survey or composite plan of the land does not establish title or ownership thereof, and I hold that the view expressed by the learned trial judge at page 153 of the record to the effect that the survey plan of the respondents is evidence of possession and ownership is erroneous.
Also it cannot be rightly stated as done by his lordship, the learned trial judge that from the testimony of the defence witnesses they have not challenged the ownership of the land by the plaintiffs. What more could constitute the challenge when, apart from their stout defence, the respondents also filed a Counter claim and testified thereon? Quite apart from this, the law requires that the plaintiff must first of all prove his case with cogent, credible, concrete and compelling evidence before the burden will shift to the defendant. See Elias v. Disu (1962) 1 All NLR 214. After all the position of the law remains that a plaintiff cannot rely on the weakness of the case of the defence except where the defendants’ case supports that of the plaintiff. See Ihekoronye v. Hart (2000) 15 NWLR (Pt. 692) 840.
The appellant’s third issue is on the evaluation of evidence by the learned trial judge.
The law generally is that it is the trial court that is in preeminent position to evaluate evidence being the court that saw, heard and observed the demeanour of the witnesses, and the appellate court will not ordinarily interfere with the findings of the trial court. See: Agbabiaka vs. Saibu (1998) 7 SCNJ 305; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12. The principle to be followed in evaluating evidence in a civil case is that, the trial judge after a summary of all the facts, must put them on an imaginary scale, weigh one against the other and decide which one weighs more and apply the law thereto. See: Mogaji v. Odofin (1978) 3 SC 91.  An appellate court will have a duty to interfere with the trial court’s findings and itself evaluate the evidence where the trial court has inadequately evaluated the evidence. See Woluchem V. Gudi (1981) 5 SC 219; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Abisi v. Ekwealor (pt. 302) 643.
From the pleadings and evidence thereon, it is clear in the instant case that the appellants failed to meet the standard required in pleading and proving their title to the land in dispute. Indeed it is obvious that the learned trial judge was affected by the belief that the appellants did not challenge the title of the respondents. The findings of the trial court are perverse and led to miscarriage of justice. Having failed to prove their case, the proper order of court ought to be the dismissal of the plaintiff’s claims.
I agree with the appellants on issues 1 and 3 and I resolve both in their favour.
The fourth issue in the appellants’ brief is the dismissal of their Counter claim.
As I had stated earlier, the appellants filed a Counter Claim for perpetual injunction, declaration of title and general damages for trespass. I should state that all the principles which I had stated concerning the respondents’ claim apply mutatis mutandis to the Counter claim in that the Counter claimant for declaration of title must establish the claim on the strength of his own case and not the weakness of the defence.
The appellants pleaded that they acquired the land from members of the family of the late Senator Victor Akan to who the administrators of the deceased’s estate had assigned it. They described the land assigned to them as Plots 71-74 on Otop Otop Layout which was part of a larger parcel of land earlier conveyed to Senator Akan by the Etubom George Duke Henshaw’s family, the original owners. Apart from producing exhibits 11, 12 and 13 their Deeds of assignment through the DW1, they called one Inameti George Duke Henshaw the Secretary of Etubom George Duke Henshaw family as DW2 who confirmed the conveyance of the land to late Senator Akan.
One of the five ways of proving title to land is production of documents of title. See Idundun v. Okumagba (supra). There is no controversy as to the documents of title on which the appellants relied, and they pass the test of being genuine under the law as held in some cases which include Romanie v. Romanie (1992) 4 NWLR (pt. 238) 650; Kyari v. Alkali (2001) FWLR (Pt. 60) 1481.
The appellants by their pleadings and evidence were in possession of the land and they were erecting structure thereon which the respondents came to demolish and planted juju thereon.
I had found from my consideration of issues 1 and 3 that the respondents failed to properly plead and prove their source of title to the land. I should state here that the title deeds tendered by the respondents support their Counter claim and on balance of probabilities they ought to succeed. Civil cases are proved on the preponderance of evidence or balance of probabilities. See Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355, Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; Itauma v. Akpa-Ime (2000) 7 SC (Pt. II) 24.
Trespass is unlawful or unauthorized entry into property in lawful possession of another and the proper person that can sue for trespass is the person in possession, actual or constructive, and he can maintain an action against every other person except the true owner or anyone with better title. See Amakor v. Obiefuna (1974) 2 SC 67; Aturase v. Bako (1985) 1 NWLR (Pt. 1) 105.
The appellants having successfully pleaded and proved their Counter claim, it was wrong for the learned trial judge to have dismissed it.
I agree with appellants’ counsel on this issue and I resolve it in their favour.
The award of N2 million as general damages in favour of the respondents is the 5th issue. It was said to be awarded for trespass, but the factual basis as stated on page 153 of the record is the evidence that defendants caused the arrest and trial of Plaintiffs principal members at the Magistrate court in charge No. MC/200c/96 (i.e. Exhibit 5).
General damage is awarded in a deserving case as monetary compensation to a person who has suffered injury to his person or property as a result of the unlawful act or omission of another person. It is therefore the compensation which the law presumes as flowing naturally from the defendants’ conduct and the quantum needs not be specified as the award is based on what a reasonable man will consider to be adequate in the circumstances. See: Odulaja v. Haddad (1973) 11 SC 357; Osuji v. Isiocha (1989) 3 NWLR (pt. 111) 613.
The trial court has the discretion to award general damages and the appellate court will not readily interfere with the award. The appellate court will however interfere where it is shown that:
(a) the trial court acted under a mistake of law or disregard of principles
(b) the amount awarded by the trial court is ridiculously too high or too low;
(c) the award has been based on consideration of irrelevant matters in disregard of relevant matters, and injustice would be occasioned unless the appellate court interferes.
(d) the amount awarded was an erroneous and unreasonable estimate having regard to the circumstances of the case.
See: James v. Mid-Motors (1978) 12 SC 31; Ezeigbe v. Agbolor (1993) 9 NWLR (pt.316) 128.
The award of N2,000,000.00 damages to the respondents who failed to prove their case was a product of a mistake of law and based on extraneous consideration, it should be set aside and it is accordingly set aside.
I resolve this issue in favour of the appellants.
Having resolved issues 1, 3, 4 and 5 in favour of the appellants which issues I regard as the core issuer in the appeal, the sum total is that the appeal is meritorious and it is allowed. The judgment of the trial court in Suit No. C/246/96 is set aside, and the claim or the plaintiffs therein now respondents’ in this appeal is dismissed.
I find that the appellants satisfactorily proved their counter claim and I so hold. It is accordingly declared that the defendants/Counter Claimants (appellants) are entitled to a Statutory Right of Occupancy over all that piece of land known as Plots No. 71-74 and lying, situate at Otop Otop Layout Atimbo, Calabar.
I order that the respondents shall forthwith remove the “Mgbe” they placed on the land in dispute if it still there.
An order of perpetual injunction is hereby granted restraining the respondents, their servant, agents and privies from entering into the said land or interfering with it except for the purpose of removing the “Mgbe” (if it still there).
The sum of N500,000.00 is awarded in favour of the appellants as general damages for trespass committed by the respondents.
I award cost of N50, 000.00 in favour of the appellants
MOHAMMED LAWAL GARBA, J.C.A.: The lead judgment delivered by my learned brother Isaiah Olufemi Akeju, JCA in this appeal was read by me in draft, before today. The crucial issues submitted by the Appellants which require decision in the appeal have been as usual, succinctly considered by His Lordship in line with the extant principles of law applicable to them. The principles of law applicable to the respective cases presented by the parties to the appeal before the High Court, are straightforward and firmly established as demonstrated in the lead judgment such that they do not require any interpolations or glosses. Just for emphasis, I would like to say that the Respondents who were plaintiffs at the High Court had pleaded and relied wholly for their claim of title to the land in dispute, on traditional evidence, one of the known ways of proving title to the land, in law. The law is that a party relying on evidence of traditional history must plead his root of title and show in the pleadings, who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, otherwise his claim would fail. See OKOKO v. DAKOLO (2006) 14 NWLR (1000) 401; IBIKUNLE v. LAWANI (2007) 3 NWLR (1022) 580. In pleading traditional history in a claim for declaration of title, the plaintiff is expected to narrate the genealogical tree from the original owner, the ancestor in generations appurtenant to him, down to him. In otherwords, he must plead and prove who founded the land, in what manner the land was founded and the circumstances, leading to it, and the successive persona to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained. See EZINWA v. AGU (2004) 3 NWLR (861) 431; IRAWO V. ADEDOKUN (2005) 1 NWLR (906) 199. In law, it is not sufficient for a party who relies on traditional history in proof of title to land to merely plead that he, and before him, his ancestors or predecessors in title had owned and possessed the land from time immemorial or beyond human memory. No, in order to succeed, he must plead in detail the following (a) who founded the land (b) how the land was founded and (c) the particulars of the intervening owners through whom he claims. In addition to the cases cited in the lead judgment on this position of the law, see also EZEOKONKWO V. OKEKE (2002) 11 NWLR (777) 1.
In addition, where a claimant for title to land, who pleads traditional history, fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land. As a matter of course, there would be nothing in the circumstances, on which to found such acts of ownership and a possession. See OYADARE v. KEJI (2005) 7 NWLR (925) 571.
In the present appeal, it has been demonstrated in the lead judgment that the Respondents did not meet the above requirements of the law in their pleadings upon which they could have given oral evidence of, to support the claim of title on the balance of probability. In the absence of sufficient pleadings and proof of traditional history upon which the Respondents claim was predicated, as required by law, their case was bound to fail.
On the other hand the case of the Appellants in the counter-claim was founded on documents of title, one of the recognized ways of establishing title to land in law. Their pleadings and evidence placed before the High Court were not effectively challenged and controverted by the Respondents at the trial. I am aware that production of a deed of conveyance or other document, of title does not automatically entitle a party to a claim for declaration of land in respect of which it relates. Before such a deed or other document of title becomes sufficient proof of ownership, and therefore found a declaration of title, the trial court must satisfy itself that (1) the document/deed is genuine or valid (2) it has been duly executed, stamped and registered where applicable, (3) that the grantor has the authority and capacity to make the grant, (4) that the grantor had in fact, what was granted and to that the grant has the effect claimed by the grantee or holder of the document. See KYARI v. ALKALI (2001) FWLR (60) 1481; DABO v. ABDULLAHI (2005) 2 SCNJ 76; ROMAINE v. ROMAINE (1992) 4 NWLR (238) 650.
My learned brother had in the lead judgment, shown that the documents of title relied on by the Appellants in both pleadings and evidence, were the deeds of conveyance executed in their favour in respect of the land they claimed, admitted in evidence without objection by the Respondents as Exhs. 11, 12 and 13, through DW1 and Exhs. 17 and 18, through Dw2 which support the earlier Exhibits. The testimonies of DW1 and DW2 mutually supported the claim by the Appellants and were not discredited by the Respondents.
The evidence clearly preponderated on the imaginary scale of justice which the law requires all the evidence in respect of the counterclaim to be placed by the trial court, on the side of the Appellants. The pleadings and the evidence adduced by the Appellants and placed before trial High Court had, sufficiently established the claim for title of the land, on the balance of probabilities as required by law. The Appellants are in the circumstances; entitle to succeed on their claim.
For the above and fuller reasons adumbrated by my learned brother in the lead judgment, I too find merit in the appeal which I allow in all the terms set out therein.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Isaiah Olufemi Akeju, JCA. He has trashed out all the vexed issues. I have nothing else to add. I abide by all the consequential orders contained in the lead judgment.
Appearances
Dafe Diegbe Esq. For Appellant
AND
R. O. Riman Esq. For Respondent
