AMODU & ANOR v. ERO & ORS (2020)

AMODU & ANOR v. ERO & ORS

(2020)LCN/14626(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/A/446/2013

RATIO

PLEADINGS: A CLAIM FOR DECLARATION OF TITLE IS NOT ESTABLISHED BY ADMISSION

A claimant for title is under law expected to establish the right to a declaration. A claim for declaration of title is not established by admissions as the plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration; see MOHAMMED V WAMMAKO & ORS (2017) LPELR-42667(SC) where the apex Court said:”Declaratory judgments are not granted on admission in default of defence. See: Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172; Ntuks v. Nigerian Ports Authority (2007) 13 NWLR (pt. 1050) 392; Addah v. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325.” Per AKA’AHS, J.S.C
The Court does not grant declaratory reliefs on admission of parties save some exceptions. The Court has to be satisfied that the plaintiff owns the title claimed. I find issue one crafted in a manner that suggests that the 2nd Respondent also claimed title. The Appellants were claimants and therefore, they had the duty to establish their root of title and in the absence of a counterclaim, none of the Respondents can be declared as title holders merely because the claim of the Appellants failed, see ANWOYI & ORS V SHODEKE & ORS (2006) LPELR-502 (SC) where the Supreme Court said:
“…the fact that a plaintiff claiming title to the land in dispute failed in proving the title and the Court dismissed his claim and there was no counter-claim by defendant for the same, does not automatically confer title to the land on the defendant. See Kodilinye v. Odu (1935) 2 WACA 336; Udegbe v. Nwokafor(1963) 1 All NLR 417 (1963) 1 SCNLR 184; Amida v. Oshoboja (1984) 7 SC 68 at 83.” The Appellant relied on Exhibit A as their root of title issued in the name of Wilma Enterprises, which is a Provisional Customary Right of Occupancy issued in June, 1995. Exhibit E is another allocation to the 1st Respondent; the numbers of the two are 285 and 108 respectively in the recommendation for Approval. It can be safely assumed that the application in Exhibit E was earlier in time and only clear evidence can rebut the presumption. The Appellants’ Exhibit A has several vices, first the learned trial Judge made a striking analysis of the Appellants business name vis-à-vis the genuineness of Exhibit A. firstly, the issue of name and when the business name was registered. The trial Judge found that Exhibit A came into existence before the registration of Exhibit A and that is contrary to established procedure of how a business should come into existence. Secondly, the name on the certificate of incorporation, Exhibit B1- J. A WILMA ENTERPRISES and the allocation was made to is WILMA ENTERPRISES and before J.A. WILMA ENTERPRISES was registered. The business name was registered on the 4th August, 1995 while Exhibit A was issued in June, 1995. The disparity in dates and names was not explained by the Appellants and this obviously created a doubt in the case of the Appellants. The duty is on a Claimant to establish his root of title pleaded, in this case Government allocation which is documentary and a letter of allocation, see NGENE V IGBO & ANOR (2000) LPELR-1987(SC) which held as follows:
“… it is the law that a party who relies on a known root of title must prove that root of title and cannot rely on acts of possession in proof thereof. See Chief Oyelakin Balogun v. Oladosun Akanji (1988) 1 NWLR (Pt. 70) 301 and Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177 at 183. Indeed, where as in the instant case, the root of title is defective as the respondent demonstrated before the trial Court, the Court ought to so find. See Okon Udofe v. Chief Akpan Aqusisua (1973) 3 E.C.S.L.R 404 at 405; and Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370; and C. F. Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.” It is also settled that there are five ways of proving title to land, see OTUKPO V JOHN & ANOR (2012) LPELR-25053(SC) where it was held:
“The five ways of proving title to land in an action for declaration of title are tied to the root of title of the claimant/plaintiff in the sense that it is the way the plaintiff/claimant proves or establishes his root of title. In short, the root of title of a plaintiff maybe traceable to/or through the traditional/historical evidence of the people/land in question, or through the documents conferring title on the plaintiff or through acts of ownership exercised by the plaintiff and/or his predecessor(s) in title, or by acts of long possession and undisturbed possession or by proving that the plaintiff/claimant is in possession of adjacent or connected land such as to raise a strong possibility that the land in dispute must of necessity belong to the plaintiff/claimant.”

The trial Court found that the Appellants failed to prove their root of title because of irregularities in name and when the allocation Exhibit A came into existence. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: STATUTORY MEANING OF FORGERY.

Statutory meaning of forgery of a document or writing was restated in the case of DOMINGO V THE QUEEN (1963) LPELR-15448(SC) thus:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere, is said to forge the document or writing.”
Forgery being a criminal offence has ingredients that must be proved, these were stated in the case of NGADI V FRN (2018) LPELR-43636(CA) thus:
“Proceeding on what is now elementary and established position of the law on the burden and standard of proof of any allegation of the commission of a criminal offence against a person charged before a Court of law, by the provisions of Sections 132 and 135(1) & (2) of the Evidence Act, 2011 as well as cases which include Adeniji v. State (2001) FWLR (1957) 809 @ 824: Eze v. FRN (1987) 2 SCNJ. 76: Okpulor v. State (1990) 21 NSCC (Pt. 3) 496: Ochiba v. State (2011) 12 MJSC (Pt. III) 162. Igri v. State (2012) 6-7 MJSC (Pt. III) 107, the prosecution is required to prove the essential elements or ingredients of the offence of forgery of Exhibit P5 against the Appellant and the other Defendants beyond reasonable doubt. The elements/ingredients are: (a) Existence of an original/genuine written document (b)That the document was forged (c) That the forgery was done by the accused person/s (d) That the accused person/s knew that the document was forged and (e) That the accused intended that the forged document be acted upon as original and genuine to the detriment of the victim i.e. to be induced to do or reframe from doing any act in the belief that the forged document was genuine. See Alake v. State (1991) 7 NWLR (205) 567, Adekolu v. State (2003) ACLR. 117. Aituma v. State (2006) ALL FWLR (318) 671. GARBA v. COP (2007) ALL FWLR (384) 260, Uzoka v. FRN (2010) 2 NWLR (1177) 118. Eya v. Olopade (2011) 5 MJSC (Pt. II) 48.” Per GARBA, J.C.A Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADING: A PARTY TO AN ACTION SUCCEEDS ON THE STRENGHT OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENCE.

It is indubitable that a party succeeds on the strength of his case and not on the weakness of the defence. See ORIANZI V A.G. RIVERS & ORS (2017) LPELR-41737(SC) where the apex Court said:
“In an action for declaration of title to land, the onus is on the claimant to establish his case on the balance of probabilities. It is also settled law that he must succeed on the strength of his case and not on the weakness of the defence. Section 133 (1) & (2) of the Evidence Act, 2011 provides: “133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with.” Thus notwithstanding the fact that the plaintiff must succeed on the strength of his own case, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant.” Per KEKERE-EKUN, J.S.C
The Claimant cannot rely on the weakness of the defence of the Defendants, see ONOVO & ORS V MBA & ORS (2014) LPELR-23035(SC) where it held thusly:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.” Per OGUNBIYI, J.S.C
Furthermore, being a claim for declaration, the law is trite that the Appellants as Claimants have the duty to satisfy the trial Court that they are entitled to the declaration. The apex Court has settled. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: DUTY OF COURT TO DETERMINE ALL ISSUES PRESENTED BY PARTIES.

The Court at whatever level is under a duty to determine all issues presented by the parties. See the case of OKONJI & ORS V NJOKANMA & ORS (1991) LPELR-2476(SC):
“…It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions.” Per UWAIS, J.S.C
The implication of such a failure of duty amounts to breach of the parties right to fair hearing. Once there is a breach of such fundamental nature, the Court is expected to remit the matter back to the trial Court for determination of the issues unresolved, however, this Court should in appropriate cases invoke its powers granted in Section 15 of the Court of Appeal Act to determine the issue in order to save time and that can only be done when certain conditions are in existence. The injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest is in this case. The apex Court interpreted the power and discretion of the Court under Section 15 in the case of DAPIANLONG & ORS V DARIYE & ORS (2007) LPELR-928(SC) as follows:
“…It was pointed out that both the counsel for the Appellants and counsel for the respondent invited the Court below to invoke its powers under Section 16 to hear the matters before the High Court. Section 16 of the Court of Appeal Act provides as follows: “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” I have had a careful look at the above provisions of Section 16 of the Court of Appeal Act. In the first place, it gives the Court of Appeal wide discretionary powers to perform such judicial functions which the Court below is authorised to perform but which it has not performed. It is a discretionary power which invocation depends on the peculiar facts and circumstances of each case. And that being so, no one exercise of the Court’s discretion under the provision is a binding precedent for any subsequent exercise of discretion. It is the peculiar facts and circumstances of the case that determines the propriety or otherwise of its invocation.”Per TABAI, J.S.C
The conditions set out for the application of the powers and discretion given by Section 15 were restated in EZEIGWE V NWAWULU & ORS (2010) LPELR-1201(SC) as follows:
“In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per ONNOGHEN, J.S.C.

The trial Court definitely had the power to determine a claim for trespass and the issue can be distilled from the Ground 4 of the Notice of Appeal. All materials necessary to determine the relief is also in the Record of Appeal therefore before the Court and to send just that aspect of the claim before the trial Court for determination will definitely inure hardship on parties. This is informed by the fact that only an aspect of the claim was not determined and not the whole suit. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS: CLAIMANT WHO FAILS TO ESTABLISH HIS CLAIM FOR DECLARATION TO TITLE BUT WHO HAD A CLAIM FOR TRESPASS SHOULD HAVE IS CLAIM DETERMINED

The Courts have in a plethora of decisions settled the issue of a claimant who fails to establish his claim for declaration to title but who had a claim for trespass should have his claim determined, see ANIABOR & ANOR V EZEABI (2014) LPELR- (CA) where my brother YAKUBU, JCA (of blessed memory) held:
“Trespass to land is rooted in actual possession of the land in question by the claimant. Thus, a plaintiff may not have a declaration of title to the land in his favour. However, if he can prove that he is in actual possession of that same land at the time of the invasion on it by a trespasser, such an invasion by a trespasser is actionable at the instance of the plaintiff/possessor of the land. Therefore, failure to prove title to land does not defeat a claim for trespass, since trespass is firmly rooted in exclusive possession and not necessarily in title to land. Shell B. P. D. C. of Nigeria v. Abedi(1974) 1 SC 23. In Oluwi V. Eniola (1967) N. M. L. R. 339, the appellant who was the plaintiff at the trial Court, had sued the respondent for a declaration of title to a piece of land and also claimed damages for trespass and an injunction restraining the respondent from further entering the piece of land. The action for declaration to title was dismissed at the trial Court. On appeal to the Supreme Court it was held that “the claim for trespass was not dependent on the claim for declaration of title as the issue to be determined on the claim for trespass was whether the plaintiff had established his actual possession of the land and the defendant’s trespass on it which are quite separate and independent issues to that of his claim for title” per Lewis JSC at 340 of the report. So also in Aromire & Ors V. Awoyemi (1972) 1 ALL NLR 101, the Supreme Court per Coker, JSC forcefully stated the memorable judicial words on marble that: “Claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass.” Therefore, a claimant who failed to prove that he was in actual possession of the land as at the time of the trespass must of necessity fail in an action for trespass. Ekpan V. Uyo (1986) 3 NWLR (Pt.26) 63 (SC); (1986) 1 NSCC 616. However, where a plaintiff successfully establish by evidence that he was in actual possession of the land in question as at the time of the trespass, he would be entitled to succeed in an action for trespass and injunction. This was re-stated succinctly by the Supreme Court in Pius Amakor V. Bennedict Obiefuna (1974) 3 S. C. 67 at 126, per Fatayi-Williams, JSC (as he then was), to wit: “It is trite that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore, anyone other than the true owner who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for a defendant to show (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence although he gave no evidence in support of his averment) that the title to the land is in another person.”
A person who has title to a piece of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law. See also ADENIJI V. OGUNBIYI (1965) N.M.L.R 395 AT 397 – 398.”
In DOKUBO & ANOR V OMONI & ORS (1999) LPELR-957(SC) the apex Court said thusly:
“…A claim in trespass is based entirely on possession of the land, not necessarily on ownership of the land. Thus, as was stated by this Court in Christopher Okolo v. Eunice Uzoka (1978) 4 S.C. 77: “It is the law and this Court has so held times without number that trespass to land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.” See also Oluwi v. Eniola (1967) N.M.L.R 339 and Ogunbambi v. Abowaba 13 W.A.C.A 222 at 223. “In other words, a claim in trespass is based entirely on possession of the land not necessarily on ownership of the land. See Amori v. Akande (1975) 2 W.A.C.A 143: Oyetona v. Ajani (1959 – 60) W.N.L.R 213; Awooner Renner v. Annan 2 W.A.C.A 258 and Wallis v. Hands (1893) 2 Ch. 75. A person who has title to a piece of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law.” See also Adeniji v. Ogunbiyi (1965) N.M.L.R 395 at 397 – 398.” Per ONU, J.S.C.

In this claim for trespass the Appellants established that they had exclusive possession and they were forcefully and unlawfully removed from the land by agents of the 2nd Respondent. The Respondents did not counter claim for title and therefore, their purported title through Exhibit E is yet to declared a valid title. Just like the irregularities were observed by the trial Court in the claim of the Appellants, there are irregularities in Exhibit E with regards to size and purpose. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS INJUNCTION.

On the question of injunction, the law is settled that one cannot restrain a completed act, the unlawful and forceful ejection having been completed cannot be restrained by way of an injunction, see AR SECURITY SOLUTION LTD V EFCC (2018) LPELR-43828(SC) where it held:
“The Appeal is predicated on an interim freezing order of the appellant’s accounts made on 25 January, 2016 which was to last for six months. The order became spent by 25 July, 2016 before a subsequent one was made upon the arraignment and trial of the appellant and its directors before a different Judge for money laundering. By a split decision of a majority of 3-2, this Court held in Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15 per Kutigi JSC (as he then was) that an order of injunction is not a remedy for an act which has already been carried out. It has the same effect as an application seeking injunction to restrain a completed action. See: llechukwu v. lwugo (1989) 2 NWLR (Pt. 101) 99; Uwaifo v. Governor of Lagos State (2009) 1 NWLR (pt.1122) 241.” Per AKA’AHS, J.S.C. Per YARGATA BYENCHIT NIMPAR, J.C.A.

RATIO

PLEADINGS TRESPASS –ELEMENT AND DAMAGES

The apex Court in the case of MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & ANOR (1986) LPELR – 3186 (SC) restated the position and emphasized on the rule of law as follows:
“…it is the Court that has the jurisdiction and power to declare the Respondent, Chief Emeka Ojukwu a trespasser on the premises situate at No. 29 Queen’s Drive Ikoyi after due hearing on relevant evidence. See Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S.C. 1 at pp. 72/73. See also Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. 17 at pp. 33 – 35. It is also the Court that can issue an order or warrant for the ejectment of the Respondent from No. 29 Queen’s Drive Ikoyi: See also Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703 where Lord Denning, M.R. observed at p. 707:- “The plain fact here is that Mr. & Mrs, Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4th. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict her was by application to the Courts of Law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the statute of Richard II against forcible entry. This applies to the Police as much as to anyone else. It applies to government departments also, and to the Nigerian High Commission. If they are entitled to possession they must regain it by due process of law. They must not take the law into their own hands. They must apply to the Court for possession and act only on the authority of the Courts.” Per OPUTA, J.S.C. I therefore find that the Appellants proved trespass and the trial Court should have assessed damages in favour of the Appellants because the Respondent must recover passion according to law. Trespass per se is actionable and liable to damages because it assuages the unlawful disturbance to land, see AJERO & ANOR V UGORJI & ORS (1999) LPELR-296(SC) and NZEKWU & ORS V NZEKWU & ORS (1989) LPELR- 2139(SC). The claim for containers and yam heaps are strictly in the realm special damages, trespass can only inure general damages, in the circumstances, I find for the Appellants for trespass and they are entitled to general damages. Per YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. WILLIAM AMODU 2. JENEBU AMODU (Trading Under The Name And Style Of J. A. Wilma Enterprises) APPELANT(S)

And

1. JIMO O. ERO 2. SHARIA COURT OF APPEAL, FCT, ABUJA 3. SALEH H. OMAR RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of the Federal capital Territory delivered on the 14th day of March, 2013 wherein the claim of the Appellants as Plaintiffs was dismissed in favour of the Respondents and aggrieved with the decision, the Appellants filed a Notice of Appeal on the 20th May, 2013 setting out 4 Grounds of Appeal.

The facts leading to this Appeal are amenable to brief summary. The Appellant initiated an action and sought the following reliefs:
1. A declaration that Plot No. 11 Kubwa District Centre belongs to the Plaintiff.
2. A declaration that the allocation of Plot No. 11 Kubwa District Centre to J. A. WILMA ENTREPRISES and/or the Plaintiff is proper and supersedes any other allocation.
3. A declaration that the sale of Plot No. 11 Kubwa District Centre by the 1st defendant to the 2nd Defendant is a nullity, illegal and of no effect whatsoever.
4. An Order of the Court setting aside the purported sale of Plot 11 Kubwa District Centre by the 1st Defendant or any other person to the 2nd Defendant.
5. A. payment of (2,050,000.00) Two

Million and Fifty Thousand Naira Only being destruction done to the Plaintiffs containers and yams on the Plot by the 2nd Defendant.
b. The sum of Five Million Naira (5,000,000.00) only being general damages for trespass.
c. Perpetual injunction restraining the defendants, their agents, privies, representatives and whosoever from trespassing or claiming or doing anything whatsoever on Plot 11 Kubwa District Centre.

With issues joined by pleadings the claim proceeded to trial. The Appellants as claimants called 4 witnesses in proof of its claim while only the 2nd and 3rd Respondents called a sole witness. Exhibits were also tendered during trial. The 1st Respondent did not participate at the hearing. The Court below after close of hearing adopted final closing addresses of counsel and after due consideration, it dismissed the claim of the Appellants thus this Appeal.

The Appellants’ Brief of arguments settled by E.A. HARUNA ESQ., is dated 15th April, 2019 and filed on the 16/4/19 and it distilled 2 issues for determination as follows:
1. Whether 2nd Respondent can be said to be the true owner of Plot No.11 Kubwa District Centre

covered by Exhibit ‘A’ having regard to Exhibits E, F and G.
2. Whether Appellants are entitled to award of general damages for trespass and injunction against the Respondents.

The 2nd and 3rd Respondents Brief settled by I.G. HARUNA ESQ., is dated 19th December, 2019 and it formulated 2 issues for determination as follows:
i. Whether the Appellants by their pleadings and evidence discharged the burden of proof required for the judgment of declaration of title to the Plot in dispute in their favour.
ii. Whether the Appellant’s having failed to prove their title to the plot in dispute as pleaded through allocation could fall back and rely on acts of possession.

I have considered the Notice of Appeal, the Record of Appeal and the briefs of Learned Counsel on both sides, I am inclined to adopt the issues formulated by the Appellants who are the initiators of the Appeal. That way all areas of complaint shall be fully resolved.

The Appellant in arguing the Appeal submitted that evidence was led through PW3 to prove the particulars of forgery pleaded or averred in paragraph 28 of the Amended statement of claim

contained at pages 102 to 105 of the Record of Appeal. The Appellants submit that in order not to leave anyone in any doubt to the fact that Exhibit E is a forged document, the Appellants caused to be subpoenaed an officer from Abuja Geographical Information System (AGIS) to produce a certain document titled “Zonal Planning and Survey Office, Bwari Area Council, FCT. (Serial number 108 on page 23 and serial number 285 on page 52) which were admitted in evidence as Exhibits C1 and C2.

Further, the Appellant states that the forging discrepancies in the content of Exhibits E and C1 were anchored on the averments in paragraph 1 of the Appellants’ Reply to 2nd & 3rd Respondent’s joint statement of defence at pages 138 to 141 of the Record of Appeal. The amended statement of claim at page 103 of the Record of Appeal, the documentation relating to the land in dispute effected by Abuja Municipal Area Council (AMAC) was moved to Bwari Area Council after its creation from AMAC. The content of Exhibit A as to the purpose and size of plot allocation is consistent with the details reflected in Exhibit C2.

The Appellant submits that the

documentary consistency in the allocation made in favour of Appellants is a further confirmation of the truth of the evidence of PW3 that he never signed any document of allocation of the land in dispute in favour of any other person apart from Exhibit A and that any other such document purported to bear his signature covering the same plot of land is a forged document. Further, the Appellant argue that the undue pre-occupation of the lower Court with omission of the initials J.A from the content of Exhibit A blinded the said Court from appreciating the clear evidence of forgery of Exhibit E led by the Appellants.

The Appellant submits that no contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens any suggestion that the evidence is not true. Referred to OFORLETE V. THE STATE (2000) 7 SCNJ 162. The only competent witness that could have offered contrary evidence to controvert the evidence of PW3 on the allegation of forgery of Exhibit E is the 1st Respondent.

Continuing his submissions, Learned Counsel to the Appellants state that after the 1st Respondent’s application was struck out for

lack of diligent prosecution, no other effort was made by the 1st Respondent to file his defence or to testify in whatever capacity at the trial. The foregoing informed the submission by Appellants’ counsel that failure to enter appearance and file a defence amounts to an admission of the evidence alleging forgery of Exhibit E as adduced by PW3. The Appellant contends that the lower Court defended the conduct of the 1st Respondent for the benefit of the 2nd and 3rd Respondent.

Continuing, the Appellant submits that the unwarranted pre-occupation with the determination to discredit Exhibit A was further compounded by the relentless efforts to protect the validity of Exhibit E resulting in the misapprehension of the Appellants’ Counsel on the legal effect of the failure of the Respondents to offer any contrary evidence to the evidence of PW3 on the fact that Exhibit E is a forged document mentioned earlier. The Appellant further submits that the decision of the lower Court is perverse.

The Appellant submit that being a forged document, Exhibit E is incapable of conferring or conveying any interest or title in favour of any person.

Consequently, Exhibits F & G purportedly predicted on Exhibit E are similarly worthless and incapable of conferring any interest or title in favour of 2nd Respondent.

The Appellant on issue two submits that they were in exclusive possession of the land as reflected in Exhibit A from June, 1995 to May, 2007 before they were forcefully dispossessed by agents of the 2nd Respondent and they suffered the loss of nine (9) containers and yams they had planted on the land. The lower Court dismissed their claim for general damages for trespass and injunction against the Respondents on the sole ground that Exhibit A was defective.

The Appellant contends that the lower Court dwelt so much on the evaluation of Exhibit A purposely to declare it defective which is the sole justification for dismissing Appellants’ claim for damages for trespass and injunction. He submitted that the Court below made a fundamental error, relied on EZE V. ATASIE (2000) 6 S.C.N.J 209; YUSUF V. KEINSI (2005) 13 NWLR (PT. 943) 554 at 572; ADEGBITE V. OGUNFAOLU (1990) 4 NWLR (PT. 146) 578 and SALAMI V. LAWAL (2008)14 NWLR (PT. 1108) 546.

Further, the Appellant states that

it is obvious that they established that they were in exclusive possession of the land covered by Exhibit A, they equally established that the 2nd Respondent trespassed on the said land and went ahead to commence development on the land even after it was duly notified of the exclusive possession previously enjoyed by Appellants vide Exhibit D. The Appellants urge the Court to resolve issue 2 in favour of the Appellant and grant the reliefs sought.

Finally, the Appellant submit that the Court below abdicated its duty to consider and resolve issue 2 identified as canvassed in Appellants’ final address. The Appellants’ argued that it is the duty of a Court, whether of first instance or Appellate to consider all the issues that have been joined by the parties and raised before it for determination, citing NWOKEDI V. EGBE (2005) 9 NWLR (PT. 930) 293 and EDEM V. CANON BALLS LTD (2005) 12 NWLR (PT. 938) 27.

The 2nd and 3rd Respondents in reaction to the Appellants’ brief commenced by submitting that the law is trite that where two contesting parties trace their title in respect of same piece of land to the same grantor, the applicable

principle of law has always been that the latter in term of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor. The 2nd and 3rd Respondent states that the reason is that the grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land to the first grant, he would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him, relied on ORIANZI V. A.G, RIVERS STATE (2017) 6 NWLR (PT. 1561) 224 at 248 ratio 21 SC.

The 2nd and 3rd Respondents submit that it is clear that Exhibits A & E were issued by the same authority and signed by same person and with serial number 285 and 108. The 2nd and 3rd Respondents’ Exhibit E was the first in terms of grant and allocation which bears serial No. 108 and by the evidence contained in Exhibit C2, the 1st Respondent’s allocation was earlier in term before the Appellants’ letter of allocation, referred to page 226-227 of the Record of Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Continuing, the 2nd and 3rd Respondents’ submits that by virtue of Section 126 of the Evidence Act, 2011 oral evidence in all cases must be direct. Evidence is direct when in the fact to be proved was seen, and then by the witness who saw it, if it was heard, then it must be by the evidence of witness who heard it. Furthermore, that by the plain words of Sections 37 and 126 of the Evidence Act, 2011, the evidence of PW3 lacked every necessary integrity to be credible because the witness has not seen the Respondents letter of conveyance of approval. Thus the Appellants have in law failed in proving ownership of the land in dispute by credible evidence warranting a declaration of title in their favour.

The 2nd and 3rd Respondents further argued that both parties and the Court are bound by the pleadings, bound to introduce evidence, the Court cannot go outside the pleadings to decide the issues in controversy in the matter. It is equally trite that evidence given on facts not pleaded goes to no issue, relied on OYEWUSI V. OLAGBAMI (2018) 14 NWLR (PT. 1639) 297. Parties are bound by their pleadings, evidence led which stand at variance with a

party’s pleadings goes to no issue. Such evidence must be disregarded. The fact is that issues are joined in pleadings and not in evidence is ignored at the parties’ peril. Citing ORLU V. ONYEKA (2018) 3 NWLR (PT. 1607) 467 in support. They submitted that a party who traces his title to land to another person is enjoined to prove how that person got title to the land, citing RAPHAEL V. EZI (2015) 12 NWLR (PT. 1472) 39.

The 2nd and 3rd Respondents submit that even if PW3 has rights and interest over the disputed piece or parcel of land by the grant to the 1st Respondent, he would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him. They urge this Court to so hold. Furthermore, they restated the burden of proof on the Appellants to establish that they are entitled to the declaratory relief to the satisfaction of the Court which is quite heavy. That such reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. The Appellants claim must rest

on the strength of their case and not the weakness of the defence, relied on ADDAH V. UBANDAWAKI (2015) 7 NWLR (PT. 1458) 325.

The 2nd and 3rd Respondents on its issue two submits that the law is settled that where a party pleads and relies on a particular root of title to land in dispute he has duty to prove same satisfactorily. Where proof of source of title is lacking and rejected by the trial Court, the party’s foundation to the case has collapsed notwithstanding evidence of positive and numerous acts of ownership. Thus a plaintiff who pleads a particular root of title and failed to prove that particular root of title is not permitted to rely on another mode of acquisition to support his claim. Relying on KANO V. MAIKAJI (2011) 17 NWLR (PT. 1275) 139 in support.

The Respondents submit that the Appellant who pleads a particular root of title and failed to prove that particular root of title, are not permitted to rely on another mode of acquisition to support their claim. They urge this Court to so hold. The law is where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of

possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from root, citing KANO V. MAIKAJI (supra).

Continuing, the Respondent submit 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 there from can be properly qualified as act of ownership, but where the title pleaded has not been proved, then it will be acts of trespass. Thus, possession no matter how long cannot found a claim in title against true owner. Furthermore, the Respondents argue that the possession, which is for a limited purpose, can never ripen to absolute ownership of the plot adverse to the first allotee and/or grantor.

Finally, the Respondents argued that the decision of the lower Court was on merit taking into consideration the facts, circumstance and the legal submissions presented to the trial Court. They urge this Court to dismiss the Appeal with substantial cost and affirm the Judgment of the lower Court.

The Appellant in reply submit that the argument of the Respondents

that the allocation was made in their favour because of the serial number is misconceived and in total disregard of the contentions in respect of the particulars of forgery and the evidence adduced in support in respect of Exhibit E to which there was no response. Appellant urge this Court to invoke the provisions of Order 19 Rule 4(2) of Court of Appeal Rules, 2016 to hold that by failing to respond to the issue of the forgery of Exhibit E in their brief, they have conceded the point and in consequent, Exhibit E cannot constitute a valid document or instrument of grant in favour of 1st Respondent and for the benefit of 2nd and 3rd Respondent.

In response to paragraph 4.03, 4.04 and 4.05 of the Respondents brief, the Appellant states that the reason given by PW3 for describing any other document purportedly signed by him conveying the grant in respect of the plot in dispute apart from Exhibit A as forged seem to have been deliberately omitted in the quotation in 2nd and 3rd Respondents brief.

In response to the argument in paragraph 4.09 of the Respondents brief, the Appellant states that it is clear from the evidence on the record that Bwari Area

Council was created out of Abuja municipal area Council after Exhibit A was issued. They submitted that the insinuation in paragraph 4.10 of the Respondents brief can only exist in their imagination and the principle in ORLU V. ONYEKA (2018) 3 NWLR (PT. 1607) 467 at 474 and RAPHAEL V. EZI (2015) 17 NWLR (PT. 1472) 39 relied upon by the Respondents are not applicable. Same for ADDAH V. UBANDAWAKI (2015) 7 NWLR (PT. 1458) 352 on page 7 of 2nd and 3rd Respondents brief.

The Appellants’ also challenged issue 1 distilled by the Respondents which they argued is not from grounds 1 and 3 or any of the grounds named on the Notice of Appeal. They referred to SHUAIBU V. UNION BANK (2001) SCNJ 4 and CHIME V. CHIME (2001) 1 SCNJ 182. The Appellants submitted that Ground 1 of the Notice of Appeal is the omnibus ground while ground 3 seeks to challenge the decision that Appellants failed to prove their allegation of forgery of Exhibit E beyond reasonable doubt. Therefore issue 1 of the Respondents brief is incompetent and they urge this Court to strike it out.

The Appellants on issue 2 contended that paragraphs 5.01-5.05 of the 2nd and 3rd Respondents brief

is misconceived. The Appellants submitted they did not contend or argue on an alternative mode of acquisition of title to the plot in dispute but rather, the Appellants relied on the principle of law that their claim for trespass is not dependent on the declaration of title as the issues to be determined on the claim for trespass were whether the Appellants had establish their actual possession of the land; and the Respondents trespass on it which are quite separate and independent issue to their claim for declaration of title. They relied on OLUWI V. ENIOLA (1967) NWLR 339 at 340-341 in support.

Furthermore, the Appellant states that having failed to show that 1st Respondent is the true owner of the plot of land in dispute, the act of forceful and violent entry on the land in dispute by 2nd Respondent solely on the non-existent right of 1st Respondent entitles the Appellants to claim for trespass. Relying on EZE V. ATASIE (2000) 6 SCNJ 209.

Continuing, the Appellant submitted that the Respondents brief is not anchored on Grounds 2 and 4 of the Notice of Appeal because Ground 2 deals with erroneous dismissal by the trial Court of the entire case

of the Appellants for failure to prove title or ownership of the plot of land in dispute having found Exhibit A defective. Ground 4 raises the issues of failure of Appellant’s claim of ownership to the land in dispute, and this led to the dismissal of their claim in respect of trespass and injunction. Issue 2 cannot be said to have been distilled from Grounds 2 and 4 of Appeal filed and it is incompetent. The Appellant urge this Court to strike out issue 2 in 2nd and 3rd Respondents brief for incompetence. Relying on SHUAIBU V. UNION BANK (SUPRA) AND CHIME V. CHIME (SUPRA). They finally urged the Court to allow the Appeal.

RESOLUTION
The Appellants claim was basically for declaration to title over a piece of land assigned to the 2nd Respondent by the 3rd Respondent on behalf of the 1st Respondent. A claimant for title is under law expected to establish the right to a declaration. A claim for declaration of title is not established by admissions as the plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration; see MOHAMMED V WAMMAKO & ORS (2017) LPELR-42667(SC) where the apex Court said:

“Declaratory judgments are not granted on admission in default of defence. See: Okoya v. Santilli (1990) 2 NWLR (Pt. 131) 172; Ntuks v. Nigerian Ports Authority (2007) 13 NWLR (pt. 1050) 392; Addah v. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325.” Per AKA’AHS, J.S.C
The Court does not grant declaratory reliefs on admission of parties save some exceptions. The Court has to be satisfied that the plaintiff owns the title claimed. I find issue one crafted in a manner that suggests that the 2nd Respondent also claimed title. The Appellants were claimants and therefore, they had the duty to establish their root of title and in the absence of a counterclaim, none of the Respondents can be declared as title holders merely because the claim of the Appellants failed, see ANWOYI & ORS V SHODEKE & ORS (2006) LPELR-502 (SC) where the Supreme Court said:
“…the fact that a plaintiff claiming title to the land in dispute failed in proving the title and the Court dismissed his claim and there was no counter-claim by defendant for the same, does not automatically confer title to the land on the defendant. See Kodilinye v. Odu (1935) 2 WACA 336; Udegbe v. Nwokafor(1963) 1 All

NLR 417 (1963) 1 SCNLR 184; Amida v. Oshoboja (1984) 7 SC 68 at 83.”

The Court shall proceed to determine the issue as argued by the Appellants.

The Appellant relied on Exhibit A as their root of title issued in the name of Wilma Enterprises, which is a Provisional Customary Right of Occupancy issued in June, 1995. Exhibit E is another allocation to the 1st Respondent; the numbers of the two are 285 and 108 respectively in the recommendation for Approval. It can be safely assumed that the application in Exhibit E was earlier in time and only clear evidence can rebut the presumption. The Appellants’ Exhibit A has several vices, first the learned trial Judge made a striking analysis of the Appellants business name vis-à-vis the genuineness of Exhibit A. firstly, the issue of name and when the business name was registered. The trial Judge found that Exhibit A came into existence before the registration of Exhibit A and that is contrary to established procedure of how a business should come into existence. Secondly, the name on the certificate of incorporation, Exhibit B1- J. A WILMA ENTERPRISES and the allocation was made to is WILMA

ENTERPRISES and before J.A. WILMA ENTERPRISES was registered. The business name was registered on the 4th August, 1995 while Exhibit A was issued in June, 1995. The disparity in dates and names was not explained by the Appellants and this obviously created a doubt in the case of the Appellants. The duty is on a Claimant to establish his root of title pleaded, in this case Government allocation which is documentary and a letter of allocation, see NGENE V IGBO & ANOR (2000) LPELR-1987(SC) which held as follows:
“… it is the law that a party who relies on a known root of title must prove that root of title and cannot rely on acts of possession in proof thereof. See Chief Oyelakin Balogun v. Oladosun Akanji (1988) 1 NWLR (Pt. 70) 301 and Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177 at 183. Indeed, where as in the instant case, the root of title is defective as the respondent demonstrated before the trial Court, the Court ought to so find. See Okon Udofe v. Chief Akpan Aqusisua (1973) 3 E.C.S.L.R 404 at 405; and Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370; and C. F. Akintola v. Solano (1986) 2 NWLR (Pt. 24) 598.”

It is also settled that there are five ways of proving title to land, see OTUKPO V JOHN & ANOR (2012) LPELR-25053(SC) where it was held:
“The five ways of proving title to land in an action for declaration of title are tied to the root of title of the claimant/plaintiff in the sense that it is the way the plaintiff/claimant proves or establishes his root of title. In short, the root of title of a plaintiff maybe traceable to/or through the traditional/historical evidence of the people/land in question, or through the documents conferring title on the plaintiff or through acts of ownership exercised by the plaintiff and/or his predecessor(s) in title, or by acts of long possession and undisturbed possession or by proving that the plaintiff/claimant is in possession of adjacent or connected land such as to raise a strong possibility that the land in dispute must of necessity belong to the plaintiff/claimant.”

The trial Court found that the Appellants failed to prove their root of title because of irregularities in name and when the allocation Exhibit A came into existence.

The Appellants contended that (Respondents root of title) Exhibit E is a forgery and relied

heavily on the evidence of PW3 under cross examination when he said he did not sign two allocations in respect of one plot and that Exhibit A is the one he signed. That could be so but when forgery is alleged in a civil proceeding, the law requires the party alleging to prove such criminal allegation beyond reasonable doubt. Statutory meaning of forgery of a document or writing was restated in the case of DOMINGO V THE QUEEN (1963) LPELR-15448(SC) thus:
“A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere, is said to forge the document or writing.”
Forgery being a criminal offence has ingredients that must be proved, these were stated in the case of NGADI V FRN (2018) LPELR-43636(CA) thus:
“Proceeding on what is now elementary and established position of the law on the burden and standard of proof of any allegation of the commission of a

criminal offence against a person charged before a Court of law, by the provisions of Sections 132 and 135(1) & (2) of the Evidence Act, 2011 as well as cases which include Adeniji v. State (2001) FWLR (1957) 809 @ 824: Eze v. FRN (1987) 2 SCNJ. 76: Okpulor v. State (1990) 21 NSCC (Pt. 3) 496: Ochiba v. State (2011) 12 MJSC (Pt. III) 162. Igri v. State (2012) 6-7 MJSC (Pt. III) 107, the prosecution is required to prove the essential elements or ingredients of the offence of forgery of Exhibit P5 against the Appellant and the other Defendants beyond reasonable doubt. The elements/ingredients are: (a) Existence of an original/genuine written document (b)That the document was forged (c) That the forgery was done by the accused person/s (d) That the accused person/s knew that the document was forged and (e) That the accused intended that the forged document be acted upon as original and genuine to the detriment of the victim i.e. to be induced to do or reframe from doing any act in the belief that the forged document was genuine. See Alake v. State (1991) 7 NWLR (205) 567, Adekolu v. State (2003) ACLR. 117. Aituma v. State (2006) ALL FWLR (318) 671. GARBA v. COP

(2007) ALL FWLR (384) 260, Uzoka v. FRN (2010) 2 NWLR (1177) 118. Eya v. Olopade (2011) 5 MJSC (Pt. II) 48.” Per GARBA, J.C.A
Obviously, there is no scintilla of evidence on the alleged forgery of Exhibit E. in the absence of the required evidence, the allegation of forgery collapses like a pack of cards. The Appellants contended that the evidence of PW3 proved elements of the offence of forgery by what he told the Court below as follows:
“I have not seen the defendant’s letter of conveyance of approval. The one shown to me is the only one I know. I was told there is another letter and I said that one is forged because I never signed two letters in one plot. I know the first defendant only once. As at the time I signed the allocation there was a policy of file on the plot. I can’t remember the file number. We don’t use file numbers for allocation. It is when you are processing C of O then we allocate file number.”
It is clear that PW3 alluded to Exhibit E as a forgery but forgery is not proved by mere assertion, the ingredients of the offence must be proved as required by law. In the absence of the quality of

evidence required to proved forgery, forgery was not proved. The Appellants also referred to Exhibits C1 and C2 where the purposes of the plot in Exhibit C1 is different from the purpose in Exhibit E. One has RES (meaning residential) as purpose while Exhibit E has commercial. It cannot be wished away that the content of Exhibit A is corroborated by Exhibit C1 in terms of size and purpose. Furthermore, the sizes are different; these discrepancies raises questions but still do not establish the Appellants root of title. It is obvious irregularity in the handling of land allocation by AMAC and other Area Councils in the FCT. It can be seen that the Appellants landed themselves in trouble waters by the use of the word forgery, taking forgery out and adding the Area council as a party could have helped the Appellants.

The Appellants expressed dissatisfaction with the trial Judge’s finding that the name on the allocation letter is different from the name on the certificate of incorporation of the Appellants’ business name. As observed above, the appellants had opportunity to explain the disparity but failed to do so. It is too late to do so at this

stage because the irregularities are fundamental in law.

have been dealt with.” Thus notwithstanding the fact that the plaintiff must succeed on the strength of his own case, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant.” Per KEKERE-EKUN, J.S.C
The Claimant cannot rely on the weakness of the defence of the Defendants, see ONOVO & ORS V MBA & ORS (2014) LPELR-23035(SC) where it held thusly:
“The law is also settled that in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. Ita II NLR 68 and

held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further he must on the strength of his case and not on the weakness of the defence.” Per OGUNBIYI, J.S.C
Furthermore, being a claim for declaration, the law is trite that the Appellants as Claimants have the duty to satisfy the trial Court that they are entitled to the declaration. The apex Court has settled.

The Appellant therefore was left with having to prove a better root of title as required by a Claimant to declaration of title to land. The Appellant pleaded allocation letter as their root of title and when that collapsed, they had no root to found their claim.

The burden of introducing evidence in a civil claim rested on the Appellants and unless discharged, the Respondents have no duty to rebut what has not been placed before the Court. The trial Court’s finding below is correct in law. The Court said:
“The failure of the 1st defendant to enter appearance and file his statement of defence does not amount to sufficient prove that Exhibit E is a forged document.”

However, I agree with the Appellants that there being no counter claim, the trial

Judge erred in making a statement that Exhibit E is valid to ground title to land. There was no such relief before the Court and it was done without jurisdiction. The trial Court erred in this regard because there was no counterclaim before the trial Court.
I resolve issue one against the Appellants.

On issue two, the Appellants had other claims before the Court which the trial Court ignored and did not make any statement concerning it. The Appellants had a claim for damages for trespass and the destruction of their yams and containers. The fact of the Appellant being in possession of the land in dispute was not contested by the Respondents. The Court at whatever level is under a duty to determine all issues presented by the parties. See the case of OKONJI & ORS V NJOKANMA & ORS (1991) LPELR-2476(SC):
“…It is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court failed to do so, without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration

of justice that every Court has a duty to hear, determine and resolve such questions.” Per UWAIS, J.S.C
The implication of such a failure of duty amounts to breach of the parties right to fair hearing. Once there is a breach of such fundamental nature, the Court is expected to remit the matter back to the trial Court for determination of the issues unresolved, however, this Court should in appropriate cases invoke its powers granted in Section 15 of the Court of Appeal Act to determine the issue in order to save time and that can only be done when certain conditions are in existence. The injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest is in this case. The apex Court interpreted the power and discretion of the Court under Section 15 in the case of DAPIANLONG & ORS V DARIYE & ORS (2007) LPELR-928(SC) as follows:
“…It was pointed out that both the counsel for the Appellants and counsel for the respondent invited the Court below to invoke its powers under Section 16 to hear the matters before the High Court. Section 16 of the Court of Appeal Act provides as follows: “The Court of

Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” I have had a careful look at the above provisions of

Section 16 of the Court of Appeal Act. In the first place, it gives the Court of Appeal wide discretionary powers to perform such judicial functions which the Court below is authorised to perform but which it has not performed. It is a discretionary power which invocation depends on the peculiar facts and circumstances of each case. And that being so, no one exercise of the Court’s discretion under the provision is a binding precedent for any subsequent exercise of discretion. It is the peculiar facts and circumstances of the case that determines the propriety or otherwise of its invocation.”Per TABAI, J.S.C
The conditions set out for the application of the powers and discretion given by Section 15 were restated in EZEIGWE V NWAWULU & ORS (2010) LPELR-1201(SC) as follows:
“In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have

the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” Per ONNOGHEN, J.S.C.

part of the claim ignored by the trial judge and more so, the Court has determined issue one in this Appeal. I shall proceed to resolve the issue 2 which covers the aspect of the claim not determined by the Court below.

By paragraph 5 of the amended statement of claim, the Appellants sought the following:
5(a) Payment of (2,050,000,00) Two Million and Fifty Thousand Naira Only being destruction done to the plaintiffs’ containers and yams on the Plot by the 2nd defendant.
(b) The sum of (5,000,000.00) Five Million Naira Only being general damages for trespass.
(c) Perpetual injunction restraining the defendants, their agents, claiming or doing anything whatsoever on Plot 11 Kubwa District Centre.

Issues were joined and Learned Counsel filed and adopted written addresses but the Court below completely ignored the reliefs without a word either dismissing it or granting it either wholly or in part. The trial Judge probably assumed that the dismissal of the relief seeking declaration of title has settled that relief without making a pronouncement on it.

The Appellants led evidence on how they were violently disposed of the

land even after a notice for amicable resolution was extended to the 2nd Respondent, see the evidence of 1st Appellant, PW1 and Exhibit B2, B3, B6 and D.

It was established that 9 containers and 250 heaps of yams were destroyed by agents of the 2nd Respondent. The Appellants contended that the Court below dismissed the claim solely on the ground that Exhibit A was defective and submitted that it was a grievous error.

to land does not defeat a claim for trespass, since trespass is firmly rooted in exclusive possession and not necessarily in title to land. Shell B. P. D. C. of Nigeria v. Abedi(1974) 1 SC 23. In Oluwi V. Eniola (1967) N. M. L. R. 339, the appellant who was the plaintiff at the trial Court, had sued the respondent for a declaration of title to a piece of land and also claimed damages for trespass and an injunction restraining the respondent from further entering the piece of land. The action for declaration to title was dismissed at the trial Court. On appeal to the Supreme Court it was held that “the claim for trespass was not dependent on the claim for declaration of title as the issue to be determined on the claim for trespass was whether the plaintiff had established his actual possession of the land and the defendant’s trespass on it which are quite separate and independent issues to that of his claim for title” per Lewis JSC at 340 of the report. So also in Aromire & Ors V. Awoyemi (1972) 1 ALL NLR 101, the Supreme Court per Coker, JSC forcefully stated the memorable judicial words on marble that: “Claim in trespass pre-supposes that the plaintiff

is in possession of the land at the time of the trespass.” Therefore, a claimant who failed to prove that he was in actual possession of the land as at the time of the trespass must of necessity fail in an action for trespass. Ekpan V. Uyo (1986) 3 NWLR (Pt.26) 63 (SC); (1986) 1 NSCC 616. However, where a plaintiff successfully establish by evidence that he was in actual possession of the land in question as at the time of the trespass, he would be entitled to succeed in an action for trespass and injunction. This was re-stated succinctly by the Supreme Court in Pius Amakor V. Bennedict Obiefuna (1974) 3 S. C. 67 at 126, per Fatayi-Williams, JSC (as he then was), to wit: “It is trite that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers except a person who could establish a better title. Therefore, anyone other than the true owner who disturbs his possession of the land can be

sued in trespass and in such an action it is no answer for a defendant to show (as the defendant/respondent had sought to show in paragraph 7 of his statement of defence although he gave no evidence in support of his averment) that the title to the land is in another person.”
A person who has title to a piece of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law. See also ADENIJI V. OGUNBIYI (1965) N.M.L.R 395 AT 397 – 398.”
In DOKUBO & ANOR V OMONI & ORS (1999) LPELR-957(SC) the apex Court said thusly:
“…A claim in trespass is based entirely on possession of the land, not necessarily on ownership of the land. Thus, as was stated by this Court in Christopher Okolo v. Eunice Uzoka (1978) 4 S.C. 77: “It is the law and this Court has so held times without number that trespass to land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.” See also Oluwi v. Eniola (1967) N.M.L.R 339 and

Ogunbambi v. Abowaba 13 W.A.C.A 222 at 223. “In other words, a claim in trespass is based entirely on possession of the land not necessarily on ownership of the land. See Amori v. Akande (1975) 2 W.A.C.A 143: Oyetona v. Ajani (1959 – 60) W.N.L.R 213; Awooner Renner v. Annan 2 W.A.C.A 258 and Wallis v. Hands (1893) 2 Ch. 75. A person who has title to a piece of land may be liable in trespass to a person who is in possession if the former’s right to recover possession has not ripened to one immediately exercisable in law.” See also Adeniji v. Ogunbiyi (1965) N.M.L.R 395 at 397 – 398.” Per ONU, J.S.C.

Consequently, the Appellants can claim damages for trespass because the title of the Respondents is yet to be declared better than the Appellants and also there are times, the Appellants can claim for trespass even where their title is defective and they establish possession. In addition, the Law frowns at illegalities, it expects that due process is followed in the recovery of possession; this was not done in this case. The law is meant to remedy what is wrong.

Now to the claim, the Appellants sought the following:
6. A. payment of (2,050,000.00) Two Million and Fifty Thousand Naira Only being destruction done to the Plaintiffs containers and yams on the Plot by the 2nd Defendant.
b. The sum of Five Million naira (5,000,000.00) only being general damages for trespass.
c. Perpetual injunction restraining the defendants, their agents, privies, representatives and whosoever from trespassing or claiming or doing anything whatsoever on Plot 11 Kubwa District Centre.

On the question of injunction, the law is settled that one cannot restrain a completed act, the unlawful and forceful ejection having been completed cannot be restrained by

way of an injunction, see AR SECURITY SOLUTION LTD V EFCC (2018) LPELR-43828(SC) where it held:
“The Appeal is predicated on an interim freezing order of the appellant’s accounts made on 25 January, 2016 which was to last for six months. The order became spent by 25 July, 2016 before a subsequent one was made upon the arraignment and trial of the appellant and its directors before a different Judge for money laundering. By a split decision of a majority of 3-2, this Court held in Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15 per Kutigi JSC (as he then was) that an order of injunction is not a remedy for an act which has already been carried out. It has the same effect as an application seeking injunction to restrain a completed action. See: llechukwu v. lwugo (1989) 2 NWLR (Pt. 101) 99; Uwaifo v. Governor of Lagos State (2009) 1 NWLR (pt.1122) 241.” Per AKA’AHS, J.S.C.

On the claim for damages, it was pleaded at paragraph 20 and 21 and testified on the value of each container at N250,000.00 (Two Hundred and Fifty Thousand Naira) Only while each heap of yam was valued at N50,000 each for 250 heaps of yams. There was evidence that

the destruction was reported to security officers who advised the Appellants to go to Court. The Respondents denied the existence of containers on the plot and that there were no yam heaps on the land. The Respondents tactfully admitted the use of force to eject the Appellants from the land. As at the time the Appellants were ejected both of them laid claims to the land and even up until the Judgment, there was no declaration in favour of the Respondents as to title. It is also reprehensible to use force to recover possession that had a presumption of regularity because the Appellants had allocation letter to the plot and it is only right that recovery of possession be lawfully done instead of destroying properties and peoples livelihood. The apex Court in the case of MILITARY GOVERNOR OF LAGOS STATE & ORS V. OJUKWU & ANOR (1986) LPELR – 3186 (SC) restated the position and emphasized on the rule of law as follows:
“…it is the Court that has the jurisdiction and power to declare the Respondent, Chief Emeka Ojukwu a trespasser on the premises situate at No. 29 Queen’s Drive Ikoyi after due hearing on relevant evidence. See

Pan Asian African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S.C. 1 at pp. 72/73. See also Sule v. Nigerian Cotton Board (1985) 2 N.W.L.R. 17 at pp. 33 – 35. It is also the Court that can issue an order or warrant for the ejectment of the Respondent from No. 29 Queen’s Drive Ikoyi: See also Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703 where Lord Denning, M.R. observed at p. 707:- “The plain fact here is that Mr. & Mrs, Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4th. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But, even so, the proper way to evict her was by application to the Courts of Law. No one is entitled to take possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the statute of Richard II against forcible entry. This applies to the Police as much as to anyone else. It applies to government departments also, and to the Nigerian High Commission. If they are entitled to possession they must

regain it by due process of law. They must not take the law into their own hands. They must apply to the Court for possession and act only on the authority of the Courts.” Per OPUTA, J.S.C. I therefore find that the Appellants proved trespass and the trial Court should have assessed damages in favour of the Appellants because the Respondent must recover passion according to law. Trespass per se is actionable and liable to damages because it assuages the unlawful disturbance to land, see AJERO & ANOR V UGORJI & ORS (1999) LPELR-296(SC) and NZEKWU & ORS V NZEKWU & ORS (1989) LPELR- 2139(SC). The claim for containers and yam heaps are strictly in the realm special damages, trespass can only inure general damages, in the circumstances, I find for the Appellants for trespass and they are entitled to general damages. I hereby award the sum of N1,000,000.00 (One Million Naira) only in favour of the Appellants against the Respondents jointly and severally for trespass.

Flowing from above, the Appeal succeeds in part. The Judgment of the trial Court in respect of declaration of title is affirmed while the claim for damages for trespass succeeds

with damages accessed as above.
Each party to bear his cost.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Yargata Byenchit Nimpar JCA.
I agree with my learned brother that this appeal succeeds in part. I also abide by the consequential order made in the leading judgment.

MOHAMMED BABA IDRIS, J.C.A.: I had the privilege of reading in draft the judgment just delivered by learned brother, YARGATA BYENCHIT NIMPAR, JCA and I agree with the reasoning contained therein and the conclusion arrived there at.
My brother has adequately considered the issues formulated for determination in this Appeal. I have nothing useful to add. For the same reasoning advanced in the lead Judgment which I adopt as mine, this Appeal only succeeds in part.
I abide by the other orders made therein the lead Judgment.

Appearances:

A. HARUNA, ESQ., with him, F. U. ADEJOH, ESQ. For Appellant(s)

I.G. HARUNA, with him, TOLA OLURUNFUNMI, ESQ., J.S. AKPAN, ESQ., H. I. APAH, ESQ. and D. V. OLAJUBU, ESQ. – for 2nd & 3rd Respondents For Respondent(s)

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