AREMU HASSAN V. BENJAMIN TADE & ANOR
(2011)LCN/4460(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of April, 2011
CA/IL/1/2009
RATIO
TRESPASS TO LAND: WHAT THE TERM “TRESPASS TO LAND” ENTAILS
Ogbuagu JSC (as he then was) in ECHERE V. EZERIKE (2006) 12 NWLR (PT 994) opined thus: “Trespass is interference with possession. It is settled law that trespass to land is actionable at the suit of the person in possession of the land.” Encarta English Dictionary defined trespass thus: Law: enter somebody else’s land unlawfully or to go onto somebody else’s land or enter somebody else’s property without permission. PER SOTONYE DENTON WEST, J.C.A.
TRESPASS: WHETHER TRESPASS IS ACTIONABLE PER SE
…can the respondent sue for trespass or is trespass actionable per se, I answer in the affirmative that trespass is actionable at the suit of the person in possession of the land, see ECEHERE V. EZRIKE SUPRA; ANIMASHAUN V. OLOJO (1990) 9-10 S.C AT PAGE 103; and OLABODUN V. LAWAL (2008) 17 NWLR PT. 115. PER SOTONYE DENTON WEST, J.C.A.
OMNIBUS GROUND: MEANING AND NATURE OF AN OMNIBUS GROUND OF APPEAL
An omnibus ground is a general ground of facts complaining against the totality of the evidence adduced at the trial, it is not against a specific finding of fact and it cannot be used to raise any issue or error in law. See ATUYEYE V. ASHAMU (1987) NWLR (PT 49), OSOLU V. OSOLU (2003) 11 NWLR (PT 832) AKTNLAGUN V. OSHOBOGA (2006) 12 NWLR (PT 993). Onnoghen JSC, held in OKPARA V. D.S. NIG. LTD. inter alia that in “NDIWE V. OKOCHA (1992) 7 NWLR (PT 252) 129 AT 139 AT 140, it was held by this court that where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the Omnibus ground of appeal” PER SOTONYE DENTON WEST, J.C.A.
UNCHALLENGED EVIDENCE: EFFECT OF AN UNCHALLENGED EVIDENCE
It is trite that where the evidence of a witness is not challenged, either during cross examination or in any other form, that piece of evidence automatically becomes an issue. PER SOTONYE DENTON WEST, J.C.A.
INTERFERENCE WITH THE AWARD OF DAMAGES: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL NOT INTERFERE WITH THE QUANTUM OF DAMAGES AWARDED
On the quantum of damages awarded, this court will not generally alter an award of damages unless it is established that the judge proceeded of a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple. See BHOJOSONS PLC V. DANIEL KALLIO (2006) ALL FWLR (PT 312) 2038-2064 AND GARI V. SEIRAFINA NIG LTD (2008)2 NWLR (PT 1070)1 @ 20 Glossing through the notice of appeals, the appellant never complained about the quantum of damages awarded and this court will not interfere. ONU JSC IN ODOGU V. A G FED (1996) 6 NWLR (PT 456) held inter alia “This court has held that where there is no appeal on the quantum of damages, the court cannot interfere with the award” PER SOTONYE DENTON WEST, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
AREMU HASSAN Appellant(s)
AND
1. BENJAMIN TADE
2. YINKA TADE Respondent(s)
SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Honourable Justice A.O. Bangbola of the High Court of Justice, Ilorin, Kwara State delivered on 28/7/2006, wherein the plaintiffs now respondents sought for the following reliefs:
1. The sum of N55, 000 (Fifty Five Thousand Naira) as general damages from the defendant for injuries (sic) falsehood and maliciously (sic) and without reasonable and probable cause sometimes in December, 1991 commenced private prosecution or proceedings against the plaintiffs at various court (1st at Upper Area court Oloje Ilorin) and secondly the chief Magistrate court Ilorin for the offences of criminal force and assault.
The case was subsequently decided in favour of the plaintiffs by the chief Magistrate court, Ilorin on the 28th of April, 1998, wherein the plaintiff as (the accused persons in the criminal proceedings) were discharged and acquitted.
In consequence of the aforementioned prosecution of the plaintiffs by the defendant, the plaintiffs were put into considerable troubles, psychological tortures, anxieties, inconveniences, expenses and injuries.
2. The sum of N65, 000.00 general damages to the 1st plaintiff from the defendant for unlawful trespass to the plaintiff’s land in that sometimes in December 1991 based on the abatement of nuisance order No. 09096 issued by Ilorin Local Government commanding the 1st plaintiffs to within 14 days provide toilet in his building and while the 1st plaintiff engaged the services of his bricklayer and other agent of his to dig the soak away on his land situate at Odota Area, Ilorin and while digging the same, the defendant without just probable and reasonable cause entered unlawfully unto the 1st plaintiff’s and disturbed his bricklayer, agent and the 1st plaintiff himself from working on his land.
And the lower court granted:
i. The sum of N55, 00 (Fifty Five Thousand Naira) only as general damages for injurious falsehood and malicious prosecution, and
ii. The sum of N65, 000 (Sixty Five Thousand Naira) only was awarded for general damages for unlawful trespass.
The appellant was discontented with the judgment and filed five grounds of appeal wherein two (2) issues where deduced thus:
i. whether the findings of the trial judge are supported by the evidence.
ii, Whether in the circumstance of this case the appellant has adduced enough proof.
Whereas, the respondents on their own formulated one issue for determination thus:
whether having regards to the state of the pleadings and evidence led by the parties on record at the lower court, whether the lower court was right when he entered judgment in favour of the respondents against the appellant. In deciding this appeal, the two issues as formulated by the appellant and the singular issue of the respondents will be taken together.
When the appeal came up for hearing on 24/01/2011, the appellant’s counsel Abdul Ahmed Rabiu Esq, adopted the amended appellant’s brief of argument which was deemed filed 15th day of July 2009 and was deemed filed on 23rd day of November 2010.There was also a reply brief dated and filed on 9th November 2010 and also deemed filed on 23rd day of November 2010. He adopted the two briefs and urged this court to allow the appeal.
The respondents counsel Kayode Alawode Esq, on his own adopted the respondents’ brief of argument which was dated 25/5/2009 and filed 4/6/2009, he prayed this honourable court to dismiss the appeal and affirm the judgment of the lower court.
ARGUMENT OF APPELLANT’S ISSUE ONE & TWO AND RESPONDENTS SINGULAR ISSUE.
The appellant submitted that the findings of the learned trial judge were perverse and did not state the true evidence in their case; he cited the case Of SULE SANI V. DUROJAIYE ADEMILUYI (2003) 1 SCNJ 191 AT 207 – 208.
He argued that the ownership of the land upon which the respondent built on is not in issue but where the 1st respondent dug his soak away. He contended that the lower court failed to consider contradictions and admissions made by PW1 and PW2 and that this made the judgment of the lower court to be perverse, he referred to the following cases, ABEL NKADO & 2ORS V. OZUNKE OBIANO & 1OR (1997) 6 NWLR (PT 245) 116 AT 131 and OBA JOSEPH O. OYEDELE FASIKUN & 4ORS V. OBA SAMUEL M. O. OYELEYE OLURONKE II & 3ORS (1991) 1 SCNJ 105 AT 126.
The appellant further submitted that the respondent could not be taken to have established the fact that the disputed land belong to the 1st respondent.
The appellant further submitted that the respondents’ claim was N65, 000 and not N55, 000 as held by the learned trial judge, counsel submitted that based on the above, the findings and decision of the trial judge were perverse and urged that it is liable to be set aside and he referred this court to the case of ABIODUN ADELAJA & 2 OTHERS V. YUSUF ALADE (1992) 6 NWLR (Pt 245) 116 AT 13.
He finally prayed this Honourable Court to answer the 1st issue in the negative.
On issue two, the appellant submitted that the respondents by their further amended statement of claim, claimed damages for injurious falsehood and maliciously (sic). Counsel further submitted that injurious falsehood is a relief in tort and affects chattel, property, commercial and business interest and does not pertain to the person. The tortuous relief that affect the person is defamation; he referred this court to STREET ON TORT (6th EDITION) page 359 – 364.
Appellant further submitted that, the respondents’ claim for defamation of character during trial was not a claim in the statement of claim. He further stated that the 2nd respondent while leading evidence claimed the sum of N55, 000.00 for malicious prosecution and that was why the lower court granted the sum of N55, 000.00 for injurious falsehood and malicious prosecution when the award for injurious falsehood was tortuous and cannot stand.
The appellant further argued that the respondent ought to establish the following elements to succeed in the case for malicious prosecution.
i. That the prosecution was commenced at the instances of the defendants who set the law in motion against him leading to a criminal charge.
ii. That he was prosecuted and the criminal prosecution terminated in his favour.
iii. That the prosecution was instituted maliciously.
iv. That the defendant acted without reasonable and probable cause.
He referred this court to the case of ALH. JUBRIN GARBA V. ALH. ISA TARIHU MAIGORO (1992) 5 NWLR (PT 243) PG. 588 AT 596. He thereafter contended that the respondent did not establish any or all the ingredient listed. He further stated that, when no record of proceedings was tendered in the criminal case and neither did they prove that the criminal case was terminated in their favour. Appellant contemplated that he denied that the respondents were discharged and acquitted. But, that the appellant stated thus”
“…the case was later transferred to Mrs. Ajayi at the Magistrate Court plaintiffs stood trial for about 2 years. The two of us were asked to go free, we were dismissed.”
He contended that the above criminal case was settled and not that the respondents were discharged and acquitted.
In the appellant’s brief of argument he stated that the Evidence of pW4 a typist not a registrar in the lower court should not stand in evidence on the point that the record of proceedings was gutted by fire is not a proof of what transpired at the Magistrate Court. He therefore submitted that, the learned trial judge acted in error when he supplanted the evidence to suggest that the record of proceedings was lost in fire.
He referred this court to the case of GRACE ABRAHAM AKPABIO & 2 ORS V. THE STATE (1994) 7-8 SCNJ (PT. 111) 429 AT 464.
The appellant submitted in the alternative that if this court held that the proceedings of the Magistrate court was proved to be lost, the proper person to give such account is the Registrar of the Magistrate Court, he referred this court to section 124 of the Evidence Act. Appellant further contended that the soak-away was being constructed outside the fence of the 1st respondent’s land and that piece of evidence clearly showed that the 1st respondent has no claim or right over where the soak-away was dug. He then contended that the plaintiff can only succeed on the strength of his own case not on the strength of the defendant’s case. He referred this court to the case of NNAN YELUGO ODUKWE V. MR. SETHELN OGUNBIYI (1998) 6 SCNJ 120 AT 118, to buttress his position, and concluded that the respondents have failed to lay foundation or prove hatred by the appellant.
Appellant argued that on another limb, the respondent failed to establish exclusive possession of the area, therefore the appellant should not have been found to have trespassed on the land. He cited the cases of EME NDUKWE V. UMA ACHA & 4OTHERS (1998) 5 SCNJ 28 AT 36; ALHAJI RAIMT AKANJI YUSUF & 4 OTHERS V. ALHAJI AKINDIPE & 5 OTHERS (2000) 5 SCNJ 128 AT 136.
In furtherance of the appellant’s argument, he contended that the lower court did not give reason for the quantum of the damages awarded and contended that the award is bogus, charitable and liable to be set aside. He cited the case of JOSEPH & 11 OTHERS V. EZEKIEL NKA & 2 OTHERS (1996) 7 SCNJ 240 AT 258 to buttress his position.
In conclusion, the appellant prayed this honourable court to answer this issue in the negative and dismiss the respondent’s case.
The respondents’ counsel on his own urged this court to dismiss the appeal and argued the singular issue thus:
That PW4 who is an official witness was not cross examined by the appellant and that the evidence of PW4 remain unchallenged thus proved paragraphs 16 of the amended statement of claim and that section 91 (1) (c) of the evidence Act is applicable to the instant case and that the appellant misconceived section I24 as the section is clear to the extent that no custody document is improper if it is proved to have had a legitimate origin, more so, when the witness was a typist with Kwara state Judiciary and she is still one, and that she is the only competent witness to testify as to what happened to the file that got burnt.
He further submitted that, the respondents proved their first leg of claim for the sum of N55, 000 for general damages, injurious falsehood and malicious prosecution.
He contended that the respondents were acquitted and discharged on the appellant’s malicious prosecution in different courts which span for about seven years 1992-1998 and that the award of N55, 000.00 damages is not much and that same is justified. He cited the case of BAYOL V. AHAMBA (1999) 7 SC, 99.
He further argued that, the claims of the respondents before the lower court is clear, but that the appellant read pw1’s evidence before the lower court disjointly. He stated further that pw1, pw3 and pw4 are competent witnesses’ Respondents opined that the appellant’s commencement of private prosecution from 1992-1998 caused them harm and injury.
Respondent contended that the lower court found the troublesome and that same was not appealed against; moreso, when the alleged fight started in front of the 1st respondent’s house.
Respondents’ counsel argued that on the N65, 000.00 general damages awarded against the appellant for trespass, he submitted that the court was perfectly in order. In his argument, he stated that all the witnesses agreed that where the soak-away was dug was not on the road but on the 1st respondent’s land and that immediate neighbors did not disturb the respondents from digging the soak-away, that it was the appellant with some unknown people that came to the house of the 1st respondent , and were throwing stones and shouting at the respondents, that the evidence of the appellant also shows that neighbors whose houses were close to the respondents did not complain and that the lower court made specific findings of trespass committed by the appellant on the first appellant’s land and that this finding was not appealed against and that they are final and binding. He referred this court to the case of HIGH CHIEF ALBERT SARUMI V. MILLITARY GOVERNOR ONDO STATE (1998) 1 SCNJ 1, AND UNDERWATER ENG. CO. LTD V. DARUSHA (1995) 6 SCNJ 5 to buttress his argument.
Respondents counsel further argued that the appellant not only came to where the 1st respondent was digging his soak away but that he also came into the 1st respondent’s house to fight him. He cited the case of CHIEF ADEKOYA OKULALA V. MRS. OLUFEMI FATUNDE (1996) 9-10 SCNJ 1 to support his position. He stated that the appellant did not lead better title to the area were the respondents were digging their soak away or where he came to the front of the 1st respondent house to fight him that the appellant is liable in trespass simpliciter, he referred the court to the cases of ISERU V. CATHOLIC BISHOP OF WARRI DIOCESE (1997) 4 SCNJ 102; SIMON OJIAKO V. OPWURU (1995) 12 SCNJ 79; NATHANIEL UDE V. W CHIMBO (1998) 10 SCNJ 23 and ALHAJI M0HAMMED JUDI V. ALFA SAKA SALAMI (unreported suit No. CA/IL/37/07).
The respondent’s counsel submitted that assuming but not conceding that the soak away was built outside the 1st respondent’s fence, it is trite that the appellant went into the 1st respondent house and fought with him on 20/12/99 and same is tantamount to trespass.
On the ground that the lower court failed to give reason for the quantum of damages awarded the respondent, respondents submitted that the appellant did not appeal against the quantum of damages awarded. He referred this court to the case of ABUBAKAR TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 SCNJ 81, NELSON GBAFE V. PRINCE FRANK GBAFE (1996) 6 SCNJ 167 ALHAHI SUMONU AGBABIAKA V. ATIKU SAIBU (1998) 7 SCNJ 305; and LAWRENCE NWANKPA V. DENNUS (1995) 7 SCNJ 197 to buttress his position, that specific finding of the lower court that was not appealed against is binding.
Respondents further submitted that, the paramount consideration of the appeal court is whether the reasons were just and right; he cited the cases of NNNANYELUGO V. MRS. ETHEL (1998) 6 SCNJ 102, and ABEL NUEDO V. OZUKWE (1997) 5 SCNJ 33.
The respondents counsel finally prayed this court not only to dismiss the appeal but that the damages awarded by the lower court be substantially increased.
The appellant in his appellant’s reply brief urged this court to discountenance with the respondents brief and discountenanced all the respondents’ judicial authorities and allow the appeal. That on the ground that the quantum of damages and some other findings were not appealed against, appellant argued that his Grounds 3 and 4 of the Notice of Appeal covers the decision of the lower court on the issue of trespass and other claim while ground 6 is an Omnibus ground affecting all aspect of the lower courts decisions. He then prayed this court to allow the appeal.
RESOLUTION OF APPELLANT AND RESPONDENTS’ JOINT ISSUES
Having gone through the material document as assembled by the parties in this matter for the determination of this appeal, to my mind, the narrow issue joined between the parties is whether or not there are enough facts to prove the claims as claimed in the amended statement of claim by the respondents.
The two issues as formulated by the appellant from the five grounds of appeal and the singular issue as formulated by the respondent shall be taken together.
The facts as agreed upon by the two parties are succinct and unambiguous.
The appellant lives afar from the respondents’ residence. The 1st respondent intends to dig a soak-away outside his fence; but the appellant came in with some people and stopped the digging of the soak away. And later in the evening, the appellant went to the 1st respondent’s house and they fought which eventually led to reporting at the Police Station Adewole, wherein the two parties were asked to settle the matter amicably.
The appellant thereafter instituted a direct complain against the respondents in different courts which spanned from 2002-2008, wherein the respondents were released and they now instituted this matter. From the appellant’s cross examination on page 106 of the record of proceedings, the appellant admitted that “the fight started in front of the plaintiff’s house,” this shows that the appellant went into the 1st respondent’s property to fight him and that is tantamount to trespass.
Ogbuagu JSC (as he then was) in ECHERE V. EZERIKE (2006) 12 NWLR (PT 994) opined thus:
“Trespass is interference with possession. It is settled law that trespass to land is actionable at the suit of the person in possession of the land.”
Encarta English Dictionary defined trespass thus:
Law: enter somebody else’s land unlawfully or to go onto somebody else’s land or enter somebody else’s property without permission.
The poser now is, did the appellant enter the 1st respondent’s property without his permission? The answer is a definitive YES. Another poser is can the respondent sue for trespass or is trespass actionable per se, I answer in the affirmative that trespass is actionable at the suit of the person in possession of the land, see ECEHERE V. EZRIKE SUPRA; ANIMASHAUN V. OLOJO (1990) 9-10 S.C AT PAGE 103; and OLABODUN V. LAWAL (2008) 17 NWLR PT. 115.
Though where the 1st respondent built his soak-away may not be on his land as contemplated by the appellant, the appellant must definitely be a busy body, more so when he is neither a neighbor nor the only person that lives in the vicinity. That aside, Nigerian police would never see a complainant that is wounded and yet allow the suspect or whoever committed such atrocity go Scott free without taking down his statement, more so when there is no claim by the appellant of bias against the Nigeria Police Force.
I beg to disagree with the appellant that the judgment of the lower court is perverse. On the quantum of damages awarded by the lower court, it is very unfortunate that none of the grounds of appeal nor particulars complained against such. The omnibus grounds under which the appellant is hiding will not cover him, as omnibus ground cannot be used to cover complain on a specific issue or finding.
An omnibus ground is a general ground of facts complaining against the totality of the evidence adduced at the trial, it is not against a specific finding of fact and it cannot be used to raise any issue or error in law. See ATUYEYE V. ASHAMU (1987) NWLR (PT 49), OSOLU V. OSOLU (2003) 11 NWLR (PT 832) AKTNLAGUN V. OSHOBOGA (2006) 12 NWLR (PT 993).
Onnoghen JSC, held in OKPARA V. D.S. NIG. LTD. inter alia that in “NDIWE V. OKOCHA (1992) 7 NWLR (PT 252) 129 AT 139 AT 140, it was held by this court that where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the Omnibus ground of appeal”,
In all, I resolve appellant’s issue one against him in favour of the respondent, to the extent that the lower court’s decision was supported by reliable and cogent evidence.
The respondents from the documents before me were able to establish that the appellant commenced a criminal action against them in the magistrate court and they were eventually released. I would ask at this stage, what is the position of being “released” in a criminal case after parties gave evidence? The Respondents claimed that they were discharged and acquitted, but the Appellant claimed that the two parties were asked to go free and were dismissed.
If a direct complaint is instituted against an individual and the complaint was eventually dismissed, it is tantamount to an accused person or persons being discharged since he was not found guilty of any offence or alleged offences.
What is the difference between the two assertions? None. PW 4, a typist with the Kwara state judiciary gave evidence that she was to type the record of proceedings of the magistrate court but that same got burnt, she was never cross examined, it can be seen from the record that there was no resistance whatsoever to the evidence given by PW4, and all her evidence are deemed to be right and correct.
It is trite that where the evidence of a witness is not challenged, either during cross examination or in any other form, that piece of evidence automatically becomes an issue.
When a counsel stands by and allows the evidence of the witness to sail through without batting an eyelid, then it becomes obvious that the counsel is comfortable with the evidence of the witness and sees no reason why he should challenge its admission.
In other words he has no quarrel or objection to the testimony of the of the witness, and to now ask the court to set aside the testimony of pw4 is tantamount to crying over split milk. Thus, the appellant cannot complain about the evidence of pw4 at the lower court.
i. The appellant misconceived the law, if he alleges that the respondents failed to establish exclusive possession of the area where the soak away is being dug, then does it belong to him, or what special right does he have that others don’t have? Just like what I held above, trespass was proved and established by the respondents and the appellant failed to rebut same. The findings of the lower court were not based on speculation but on raw facts before the court.
The lower court was able to establish all the ingredient of malicious prosecution , the following fact were established, that the prosecution was commenced at the instances of the defendant who set the law in motion against him leading to a criminal charge.
ii. That he was prosecuted and the criminal prosecution terminated in his favour.
iii. That the prosecution was instituted maliciously.
iv. That the defendant acted without reasonable and probate cause and I so hold.
On the quantum of damages awarded, this court will not generally alter an award of damages unless it is established that the judge proceeded of a wrong principle of law or that his award was clearly an erroneous estimate in that the award was manifestly too large or too simple. See BHOJOSONS PLC V. DANIEL KALLIO (2006) ALL FWLR (PT 312) 2038-2064 AND GARI V. SEIRAFINA NIG LTD (2008)2 NWLR (PT 1070)1 @ 20
Glossing through the notice of appeals, the appellant never complained about the quantum of damages awarded and this court will not interfere. ONU JSC IN ODOGU V. A G FED (1996) 6 NWLR (PT 456) held inter alia “This court has held that where there is no appeal on the quantum of damages, the court cannot interfere with the award”
The attitude of the appellant against the respondents is injurious falsehood, see NEWBREED ORG LTD V. ERHOMSELE (2006) 2SC (PT1) 136 @ 148
In essence the damages awarded will not be disturbed and same stands, issue two of the appellant is resolved against the appellant in favour of the respondents.
This appeal fails and same is dismissed with 10, 000.00 costs against the appellant in favour of the respondents.
TIJJANI ABDULLAHI, J.C.A: I have had the advantage of reading in advance the lead statement of my noble Lord Denton-West, JCA. My learned brother has adequately treated all the issues formulated by the parties for and against and ably resolved them in favour of the respondents. I have nothing more useful to add. I adopt the reasoning and conclusions as mine.
The appeal fails and same is hereby dismissed with, costs against the Appellants.
IGNATIUS IGWE AGUBE, J.C.A: I have read before now the lead judgment of my learned brother Sotonye Denton-West, JCA, in this appeal.
I agree with his reasoning and the conclusion he arrived at by dismissing the appeal, I hereby adopt same as mine. I also agree with my learned brother on the costs of N10, 000.00 against the Appellant in favour of the respondent.
Appearances
ABDULHAMID RABIUFor Appellant
AND
KAYODE ALAWODEFor Respondent
