AUDU v. MTN (NIG) COMMUNICATION LTD
(2022)LCN/16290(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, February 17, 2022
CA/MK/02/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
EMMANUEL A. AUDU APPELANT(S)
And
MTN NIGERIA COMMUNICATION LIMITED RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CIVIL MATTERS
As a matter of fact, under our law the appellant who has laid claim to the land whereon the respondent purportedly buried its facility can only succeed on the strength of his case and not on any weakness of the respondent. This is to say that the appellant has to adduce legally valid evidence in order to discharge the burden of proof of the fact that the title of the land is vested on him. See the provisions of Section 131 (1) and 132 of the Evidence Act, 2011 which read thus:
131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
See also the authority of Chemiron International Limited vs. Stabilini Visinoni Limited (2018) 17 NWLR Pt. 1647, pg. 62 at 79, paras. B-C, per the noble Peter-Odili, JSC., where she held as follows:
“Firstly, the burden of proving the 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 come up from the pleadings. Therefore, if the party 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 the 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.”
Going by the foregoing authority, since the appellant is claiming customary entitlement to the land known and situate at 80 Old Otukpo – Enugu Road and upon which the respondent denied laying its cables, it behoves the appellant to satisfy the Court by adducing reasonable evidence that the land upon which the said cables were laid belong to him. In the authority of Ewo vs. Ani (2004) All FWLR Pt. 200, pg. 1480, 1492, lines C-D, the apex Court, per Kutigi, JSC., had this to say:
“He who asserts must prove. The burden of proof in a suit lies on that person who will fail if no evidence at all were given on either side. To place the burden of proof wrongly on a party will usually lead to miscarriage of justice.” PER JOMBO-OFO, J.C.A.
THE POSITION OF LAW ON PROVING A CLAIM OF TRESPASS AND PRIVATE NUSIANCE
Just for purpose of emphasis, I wish to state that the Appellant’s claim of trespass and private nuisance against the Respondent must be proved with cogent and reliable evidence and the Appellant must succeed on the strength of his case and not on the weakness of the Respondent’s case as held in ORIANZI V. AG RIVERS STATE & ORS (2017) LPELR-41737(SC), ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) and LAWSON V. AJIBULU (1997) LPELR- 1766(SC). PER NIMPAR, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Benue State High Court sitting at Okpoga (hereinafter the lower/trial Court) in suit No. OKP/HC/12/2014, presided over by Hon. Justice D. E. Igoh, J., and delivered 25th November, 2014.
The appellant as plaintiff at the lower Court commenced the suit by a Writ of Summons and Statement of Claim issued 4th April, 2013 against the respondent who therein was the defendant claiming as follows:
a. The sum of N140,000,000.00 (One Hundred and Forty Million Naira) only as aggravated general damages for act of trespass on the land and property of the plaintiff popularly known as No. 80 old Otukpo Road Ugbokolo, Benue State.
b. A MANDATORY ORDER of this Court directing and/or compelling the defendant to remove the optic fibre cable and/or any other substance or material property of the defendant laid inside the ground in the compound and land of the plaintiff described as above within 7 days from the date of the judgment of this Court.
c. A FURTHER ORDER of this Court authorizing the plaintiff to remove the optic fibre cable or any other material or substance laid inside the ground in the compound and land of the plaintiff described as above in the event that the defendant fail, refuse or neglect to comply with the order of this Court as in paragraph (b) above.
d. THE SUM of N20,000,000.00 (Twenty Million Naira) only as general damages against the defendant for acts of private nuisance created or occasioned on the land or compound of the plaintiff.
e. AN ORDER OF PERPETUAL INJUNCTION restraining the defendant its agent, servant, and any of its legal representative by whatsoever name so called from occasioning any further act of trespass and/or nuisance on the compound and land of the plaintiff.
f. THE COST of this suit.
g. 10% INTEREST on the judgment sum from the date of judgment until the judgment sum is fully liquidated. (See pages 11 – 12 of the record of appeal).
The respondent on its part filed a Statement of Defence wherein counsel on its behalf denied the entire claim of the plaintiff to wit:
WHEREOF the defendant denies the entire claim of the plaintiff and shall at the hearing of this suit, urge this Hon. Court to dismiss the plaintiff’s case with substantial cost for being frivolous, speculative, annoying, vexatious and an attempt to exploit the defendant. (See pages 48 – 52 of the record of appeal).
The plaintiff/appellant in response filed a Reply to the Statement of Defence. (See pages 66 –70 of the record of appeal).
At the conclusion of the exchange of pleadings, the matter proceeded to trial with each side calling one witness. The plaintiff tendered in evidence six exhibits marked A – F respectively while the respondent tendered two exhibits marked G – H respectively. Parties at the close of hearing filed and exchanged written addresses which were duly adopted on 25th September, 2014.
The learned trial Judge in his considered judgment delivered 25th November, 2014 dismissed the plaintiff’s claim in its entirety.
Aggrieved by the judgment, the plaintiff as appellant filed his appeal vide a Notice of Appeal filed on 16th November, 2017. (See pages 174 – 183 of the record of appeal). The record of appeal though compiled and transmitted out of time on 10th January, 2020, the same was deemed properly compiled and transmitted 26th January, 2021.
In consonance with the rules and practice of this Court, the parties filed and exchanged their respective briefs of argument. The appellant’s brief filed out of time on 17th February, 2020 was deemed properly filed on 26th January, 2021. Consequent upon the order of Court made on 10th February, 2021, the appellant filed his reply brief on 12th March, 2021. Both briefs were settled by E. A. Audu, Esq. The respondent’s brief of argument which was equally filed out of time on 5th May, 2020 but deemed properly filed 26th January, 2021 was settled by Ogechi Ogbonna, Esq. At the hearing of the appeal on 1st December, 2021, the counsel for the parties adopted their respective briefs of argument.
From the 7 (seven) grounds of the notice of appeal, the appellant formulated the following 7 (seven) issues for determination:
1. Whether the learned Judge of the Court below was right to have refused or failed to resolve issues 1 and 2 of the appellant (sic) written address on page 117 of the printed record and whether the refusal of the said Judge to do so has not affected the fundamental human right of the appellant to fair-hearing under Sections (sic) 36(1) of the 1999 Constitution of Nigeria (as amended) and if this omission has not occasioned a miscarriage of justice to the appellant? (Ground 1 of the Notice of Appeal).
2. Whether the Old Otukpo – Enugu Road over which Messrs. Bell-x Ltd. was purportedly issued a certificate of successful execution of contract by the Federal Ministry of Works as in Exhibit H is a road included in the Item 13 and 14 of the Schedule to Exhibit G and whether there are no contradictions in Exhibit (sic) G and H as to caution and restrain the learned Judge of the Court below to give any iota of weight to the said exhibits? (Ground 2 of the Notice of Appeal).
3. Whether the Federal Ministry of Works is not an interested person in the outcome of the appellant’s suit at the Court below and whether the learned Judge of the Court below was right in giving any form of weight to Exhibit H same having been made or written about 2 calendar months after the commencement of the suit of the appellant? (Ground 3 of the Notice of Appeal).
4. Whether the Federal Ministry of Works is a necessary party to the appellant’s suit, the suit being an action grounded in the law of trespass to land and private nuisance to land and if this question is answered in the negative or in the positive, whether the non-joinder of the Federal Ministry of Works to the suit can affect the outcome of the suit of the appellant in any way? (Ground 4 of the Notice of Appeal).
5. Whether the learned Judge of the Court below was right when he held that Messrs. Bell-x is an independent contractor to the respondent and as such, the respondent is not a proper party to the suit of the appellant? (Ground 5 of the Notice of Appeal).
6. Whether the appellant did not sufficiently prove ownership and possession of the land the subject matter of suit as alleged by the learned trial Judge to disentitle the appellant the favorable judgment of the Court below? (Ground 6 of the Notice of Appeal).
7. Whether the finding of fact of the learned trial Judge of the Court below as paraphrased in ground 7 of the notice and grounds of appeal is not perverse and whether same has not occasioned a miscarriage of justice? (Ground 7 of the Notice of Appeal).
The respondent on their part argued the appeal on the following lone issue:
Whether from the facts, evidence led and circumstances of the case now on appeal, the Honourable Court below was right to dismiss the suit and claims of the appellant. (Grounds 1 – 7 of the Notice of Appeal).
Under their issue 1 (one) for determination, the learned counsel for the appellant refers the Court to issues 1 and 2 of the plaintiff’s written address before the lower Court which issues are the subject of ground 1 of the notice of appeal and the issues read:
a. Whether the defendant has proved that the Old Otukpo-Enugu road Ugbokolo Benue State is a Federal Highway declared by law as to justify the defendant laying its facility along that road.
b. Whether the roads indicated in item 13 and 14 of Exhibit G are the same roads indicated in item No. 4 of Exhibit H.
Appellant submits that from the state of pleading and evidence led before the lower Court that the appellant and the respondent were in accord as to the exact location of the property and land of the appellant the subject matter of the suit. The appellant contended that his case at the lower Court is that the respondent laid its facilities or infrastructure on his land situate at No. 80 Old Otukpo/Enugu Road, Ugbokolo town of Benue State. See paragraphs 8, 9, 10, 11, 12, 13 and 14 of the statement of claim. That the only defense set up by the respondent to justify its presence on his land was that it was granted a right of way by the Federal Ministry of Works to lay its facilities along some Federal Highways spread across all the States of Nigeria, Benue State inclusive. See paragraph 5 of the statement of defence as well as Exhibit G. Appellant submitted that Items 13 and 14 of the Schedule in Exhibit G show the specific Federal highways in Benue State whereto the respondent was granted Right of Way to install its facilities. Appellant canvassed that the old Otukpo/Enugu Road where his property and land is located is not a Federal Highway as to justify the act of laying the respondent’s facility along the said road as to warrant the respondent to trespass into the appellant’s land thereby creating Private Nuisance thereon. See Bamgboye vs. University of Ilorin (2001) FWLR Pt. 32, pg. 12 and Katto vs. CBN (2001) FWLR Pt. 53, pg. 188. Appellant submitted further that the legal burden is on the respondent to prove that the Old Otukpo/Enugu Road where it set up its infrastructure is a road declared a Federal highway by the Minister of Works and so gazetted by the Federal government. See Omisore vs. Aregbesola (2015) 5-7 MJSC ay p. 1 at p. 62-63; Ewo vs. Ani (2004) All FWLR Pt. 200, pg. 1480at 1492, lines C-D; and Nigeria Commerce and Industry vs. Integrated Gas (Nig.) Ltd. (2005) All FWLR Pt. 250, pg. 1.
Appellant further canvassed that the word or phrase “federal road” is not synonymous with the word or phrase “federal highway” in law as the learned trial Judge postulated. He contended that a federal highway is specifically declared by the Minister of Works pursuant to its powers under Section 25 of the Federal Highway Act, Cap F.31, Laws of the Federation of Nigeria, 2004 and upon the exercise of that power, such Federal highways are gazetted by the Federal government and included in the declaration order of the enactment. Appellant submitted that the Old Ugbokolo/Enugu Road is a “federal road” and not a “federal highway”. He argued that it was mandatory for the lower Court to have resolved issues 1 and 2 of appellant’s final address. That the lower Court’s failure to do so has breached the fundamental human right of the appellant to fair hearing and so has occasioned a miscarriage of justice. See Onifade vs. Olayiwola (1990) 7 NWLR Pt. 161, pg. 130, Olowolagba vs. Bakare (1998) 3 NWLR Pt. 161, pg. 528 and Ukpabi vs. Okoro (1983) 2 SCNLR 380. He urged on us to resolve issue no. 1 in the negative and in favour of the appellant and to also answer issues 1 and 2 of the appellant’s final address in the negative and in favour of the appellant.
ISSUES 2 AND 3 ARGUED TOGETHER BY THE APPELLANT
Learned counsel for the appellant submitted under these issues that the respondent chose not to call the Federal Ministry of Works to give evidence for the purpose of proving the allegation of the permit of the right of way granted it by the Federal Ministry of Works but rather chose to rely entirely on Exhibits G and H. Appellant argued that Exhibit H curiously contain names of roads not contained in the principal document which is the Schedule to Exhibit G which in turn contained names of roads over which the respondent was originally granted right of way by the Federal Ministry of Works. Appellant contended that there are material contradictions in the names of the roads referred to in Item 13 and 14 of the Schedule to Exhibit G and the names of the roads referred to in Item 1 to 4 of the Exhibit H and that it was wrong for the learned Judge of the lower Court to have given weight to both Exhibits G and H, more so as the material contradictions were not explained. See Bassil vs. Fajebe (2001) FWLR Pt. 51, pg.1914 at 1928, line C-D. Appellant also argued that apart from the unexplained inconsistencies in both Exhibits G and H they were not tendered in evidence through their maker i.e. the Federal Ministry of Works and the respondent did not give reasons why the documents were not tendered through the Federal Ministry of Works. See Oyo State vs. Fairlake Hotel Ltd. (No. 2) (1989) 5 NWLR Pt. 125, pg. 255, 283, Bello vs. Ringim (1991) 7 NWLR Pt. 206, pg. 688, G-Chitex Industries Ltd. vs. Oceanic Bank Int. (Nig.) Ltd (2005) All FWLR Pt. 276, pg. 610 and Omega Bank (Nig.) Plc. vs. O.B.C. Ltd. (2005) All FWLR Pt. 249, pg. 1944, line E-F and Pg. 1977, line A-D. Appellant contended that both exhibits are public documents having arisen from a government agency and they were also not certified by an officer of the Federal Ministry of Works upon which that they be expunged from the record of the Court. Araka vs. Egbue (2003) FWLR Pt. 175, pg. 507, 519, lines D-E and 519-520, lines H-A and International Bank for West Africa Ltd. vs. Imani (Nig.) Ltd. (2001) FWLR Pt. 44, pg. 421 at 439, lines C-E. That the Federal Ministry of Works issued Exhibit H to the respondent 2 clear months after the commencement of the appellant’s suit with the sole purpose of over-reaching the suit. Appellant contended that the main defence of the respondent to the suit is that the Federal Ministry of Works granted it a right of way along some federal highways to lay its infrastructures and that Exhibit H was issued to Messrs. Bell-X in furtherance of that permit. Arising from the defence of the respondent one can draw the conclusion that the Federal Ministry of Works is an interested party in the outcome of the suit contrary to the holding of the lower Court.
Appellant contended that the learned Judge of the Court below based his entire decision in dismissing the case of the appellant on Exhibits G and H by giving undeserved weight to the said exhibits. He urged on us to expunge Exhibits G and H which are not legally admissible evidence from the record of the Court below and answer issue No. 2 in the negative and issue no. 3 in the positive in favour of the appellant.
ISSUE 4 (FOUR)
Coming to issue no. 4, the learned counsel for the appellant submitted that the learned Judge of the Court below shot the law on the head when he held that the appellant ought to have joined the Federal Ministry of Works to the suit. Appellant argued that his case as constituted in the statement of claim does not disclose any cause of action whatsoever against the Federal Ministry of Works and so the opinion held by the learned Judge of the Court below that the appellant ought to have joined the Federal Ministry of Works to the suit does not arise at all especially as none of the reliefs sought by him touched on the interest of the Federal Ministry of Works in any way. Appellant further canvassed that the learned trial Court even had the power to join the Federal Ministry of Works suo motu. Having failed to join the Federal Ministry of Works, the learned trial Judge should not have alluded to the fact that the appellant ought to have joined the Federal Ministry of Works, because by holding this opinion, it is meant that the learned Judge was sitting on appeal over his own decisions which is not proper in law. See N.N.D.C. Ltd. vs. Hamman Joda Saban Ltd. (1988) 2 NWLR Pt. 74, pg. 23, 55, lines F-H. That in consideration of the defence set up by the respondent that the Federal Ministry of Works granted it the permit to lay its facility on the land in issue, it is only the evidence of the Federal Ministry of Works that can confirm the case of the respondent. See Ewo vs. Ani (2004) All FWLR Pt. 200, pg. 1480, 1492, lines C-D; Hussaini vs. Ogbuokiri (2004) All FWLR Pt. 203, pg. 2132, 2149, lines A-B; and Agbi vs. Ogbe (2000) All FWLR Pt. 329, pg. 941. Appellant concluded argument on this issue by adding that the issue of the non-joinder of the Federal Ministry of Works is a legal defence which the respondent failed to put up at the trial and so the learned Judge of the lower Court has no power to raise the defence suo motu and without being prompted to do so. Appellant submitted that the improper joinder of the Federal Ministry of Works to the suit was not properly raised by the Court below at the judgment stage and that we should so hold.
ISSUE 5 (FIVE)
Referring to paragraph 7 of the respondent’s statement of defence, the appellant submitted that he joined issues with the respondent on that vide paragraph 5 of the appellant’s reply to the statement of defence. Appellant argued that the respondent did not call any form of evidence whether oral or documentary to prove that Messrs. Bell-X Ltd. is an independent contractor as opposed to being its agent. That despite the lack of proof of the said fact, the learned Judge of the lower Court went ahead in his judgment to believe the respondent’s claim that Messrs. Bell-X Ltd is an independent contractor and this finding of fact weighed heavily on the mind of the learned Judge in dismissing the case of the appellant. Appellant urged on us to hold that by the assertion of the learned Judge of the Court below that the Messrs. Bell-X is an independent contractor to the respondent, the said Judge drew a completely wrong inference from a fact not proved before him and that said finding of fact is perverse and has occasioned a miscarriage of justice to the appellant. Appellant canvassed that pursuant to paragraph 7 of the defence and coupled with the evidence as per paragraph 5 of the deposition of the DW1, they completely and categorically alluded to the fact that he inspected the way and manner in which Messrs. Bell-X Ltd executed the contract at the location and that the said Messrs. Bell-X Ltd executed same according to specification as provided by the respondent. He submitted that while it is true that an independent contractor exercises a large dose of discretion in the execution of a contract, but an independent contractor like Messrs. Bell-X Ltd who takes directive from the respondent and executed the contract strictly according to specification of the respondent, is not and cannot be liable for any suit arising from the execution of such contract. Appellant further submitted that in the circumstances of this case Messrs. Bell-X Ltd is an agent of the respondent who is a disclosed principal in which case the respondent alone can be sued and it is not mandatory for the appellant to join the agent as a necessary party. See Adghije vs. Nwaogwu (2010) All FWLR Pt. 521, pg. 1512 at 1532.
ISSUES 6 (SIX) AND 7 (SEVEN) TAKEN TOGETHER
The appellant submitted herein that title to the property known and marked as No. 80 Old Otukpo/Enugu Road is not in issue here. Hence the finding along that line by the learned lower Court as contained at page 172 of the record of appeal was a serious error in law. Appellant proffered that by the law of pleading, a pleader who desires to join issues with a material fact on pleading must not do so evasively, but he must answer the point of substance and when a matter of fact is alleged with a different circumstances, it is not sufficient to just deny it as alleged along with those circumstances. The alleged facts must be categorically and specifically denied. See T. Akinola Aguda in his book, Principle and Practice of Civil Procedure and Civil Action, published by Sweet and Maxwell at page 99-100. See also Bamgbegun vs. Oriane (2009) 6 MJSC. Pt. 1, pg. 149 at 172, lines E-G. Counsel argued that the respondent’s paragraph 3 of the statement of defence cannot be said to be a radical or specific denial of the appellant’s averments in paragraphs 4, 5, 6 and 7 of the statement of claim. Appellant contended that all that he is required to show to succeed in his claim for trespass and private nuisance in the circumstances of the case is to prove his act possession and the physical entry of the respondent into the land in issue. See Utomba vs. Anuchaogu (2003) FWLR Pt. 157, pg. 1013 at 1028, line C-E. He contends that the appellant’s act of possession on the land includes:
a. The appellant has two large buildings containing 20 rooms and 6 shops on the land in issue.
b. The appellant’s tenant has a welder workshop and a generator repairing workshop on the adjourning land to his building.
c. The said land and property is fenced and the respondent had access into the compound by digging a pit under the fence. See paragraphs 6, 10 and 11 of the statement of claim.
Appellant canvassed that the respondent did not join issues with him on the foregoing nor did he challenge the evidence arising from them. See Thompson vs. Arowolo (2003) All FWLR Pt. 164, pg. 315 at 345, lines B-D and Oyadare vs. Keji (2005) All FWLR Pt. 247, pg. 1583 at 1594, line A-B and pg. 1598, lines D-E. Learned counsel opined that the learned Judge of the Court below wrongly shifted the burden of proof of ownership of the land in issue to the appellant and that this fact alone negatively influenced the mind of the Judge to dismiss the suit of the appellant.
In toto the complaint of the appellant in his grounds 1 – 7 of the notice and grounds of appeal and in his issues 1 – 7 formulated for determination, is the fact that the learned Judge of the Court below either failed entirely to make findings on some salient issues that came up before him for determination or that the said Judge dismally made findings on issues of law and facts which do not flow from the evidence or the facts of the case before him in which case, the Court below failed in his primary duty of adjudication of the dispute brought before it.
Appellant has urged on this Court to exercise its powers pursuant to Section 16 of the Court of Appeal Act, 2016 to interfere and enter judgment for the appellant as per reliefs claimed in paragraph 21 (a) – (g) of his statement of claim.
On the reverse side, the respondent submitted that by the pleaded facts as they did in paragraph 4 (a) and (d) of the appellant’s reply to the respondent’s statement of defence, the said appellant admitted that the Federal Highway was the Federal Road over which the respondent was granted the Right of Way. Relying on the decisions in Adusei vs. Adebayo (2012) 3 NWLR Pt. 1288, pg. 534, 558, para. B, Okuleye vs. Adesanya (2014) 12 NWLR Pt. 1422, pg. 521 at 535, paras. B-C Agbahomovo vs. Eduyegbe (1999) 3 NWLR Pt.594, pg. 170, 181, paras. F-H, Ntuks vs. NPA (2007) 13 NWLR Pt. 1051, pg. 392, 411, para. H and Umar vs. Geidam (2019) 1 NWLR Pt. 1652, pg. 29, 49, paras. A-B, the respondent submitted that the argument made by the appellant including that under issue (1) herein are untenable. Respondent contended that the decisions in Okoebor vs. Police Council (2003) FWLR Pt. 164, pg. 189, Umoru vs. Zibiri (2003) FWLR Pt. 172, pg. 1920 and Omisore vs. Aregbesola & Ors. (2015) 5-7 MJSC pg. 1 at 62 – 63, relied upon by the appellant are inapplicable to the circumstances of this case by virtue of the appellant’s admission and corroborative evidence supplied by them. Respondent canvassed that the appellant who alleged breach of fair hearing is under a mandatory duty to prove same by cogent evidence which must reflect on the record of proceedings and indeed the outcome of the matter, as reiterated by this Court in the decision in MFA vs. Inogha (2005) 7 NWLR Pt. 913, pg. 1 at 25-26, paras. C-A. Respondent further canvassed that a document made by a person in an official capacity and/or in the conduct of official duties does not fall within the definition of documents made by a person interested in the outcome of the proceedings. See U.T.C. Nig. Plc. vs. Lawal (2014) 5 NWLR Pt. 1400, pg. 221 at 241, paras. F-G. He argued that the appellant in his pleadings and evidence did not disclose any interest recognized by law to preclude the admissibility of the documents (Exhibits G and H)issued by the Federal Ministry of Works.
The respondent also contended that Exhibits G and H are private contractual documents which do not define status and are valid secondary evidence which were duly tendered and admitted in evidence without objection from the appellant. He submitted that the failure of the appellant to object to the tendering of both documents and also stating that he shall only address the Court below on the weight to be attached to both documents is a waiver of any right which the appellant may have to object to the admissibility of the two documents as the appellant in law and fact is deemed to have waived and surrendered his right to complain. The appellant is not allowed under our law to approbate and reprobate over the admissibility of the said Exhibits G and H. See Anyanwoko vs. Okoye (2010) 5 NWLR Pt. 1188, pg. 497 at 519, paras. B – C and Central Bank of Nig. vs. Aribo (2018) 4 NWLR Pt. 1608, pg. 130 at 168, para. B.
Respondent submitted that the appellant only made a bare allegation of an alleged custom vesting No. 80 Old Otukpo/Enugu Road, Ugbokolo in him which bare allegation was unsupported by evidence nor was the alleged custom stated or shown to be judicially noticed. The respondent canvassed that the existence of a custom is of fact to be proved by evidence except where such custom has by overtime become judicially noticed. See Agbai vs. Okogbue (1991) 7 NWLR Pt. 204, pg. 391 and Adeyeri II vs. Atanda (1995) 5 NWLR Pt. 397, pg. 512, 532, paras. F-G.
The respondent finally urged on us to dismiss the appeal and uphold the judgment of the lower Court.
I am not unmindful of the appellant’s reply brief which I shall be drawing from as the need arises.
RESOLUTION OF ISSUE 1 (ONE)
Whether the learned Judge of the Court below was right to have refused or failed to resolve issues 1 and 2 of the appellant (sic) written address on page 117 of the printed record and whether the refusal of the said Judge to do so has not affected the fundamental human right of the appellant to fair-hearing under Sections (sic) 36(1) of the 1999 Constitution of Nigeria (as amended) and if this omission has not occasioned a miscarriage of justice to the appellant?
Issues 1 and 2 of the appellant’s final written address before the lower Court and which is the crux of ground 1 and issue 1 (one) for determination herein read as follows:
i. Whether the defendant has proved that the Old Otukpo – Enugu Road, Ugbokolo, Benue State is a Federal Highway declared by law as to justify the defendant laying its facility along that road.
ii. Whether the roads indicated in item no. 13 and 14 of Exhibit G are the same roads indicated in item No. 4 of Exhibit H. (See page 117 of the record of appeal).
The gist of the appellant’s averment in paragraphs 8, 9, 10, 11, 12, 13 and 14 of his statement of claim and in line with his evidence includes that the property known as and situate at No. 80 Old Otukpo Road, Ugbokolo belongs to him and that the respondent trespassed into the said land and laid its facilities thereon without his permission. The respondent whilst denying the appellant’s averments in paragraphs 8 – 14 referred to above averred specifically at paragraphs 5, 6 and 7 of its statement of defence thus:
5. … the defendant avers that, it applied and obtained the right of way permit from the department of highway planning, Federal Ministry of Works vides a letter dated 8th November, 2012, pursuant to which the defendant was granted right of way permit along some Federal Highways, covering a total distance of 2,343,145 metres across the country. ….
6. The defendant further states that, it did not enter the land of the plaintiff, but installed its facilities in Ugbokolo along Otukpo – Enugu Federal Highway in accordance with the right of way granted to it by the Federal Ministry of Works.
7. …. the defendant further states that, it engaged the services of Messrs. Bell-X Limited, an independent contractor who executed the assignment of installing its facilities according to specifications, pursuant to which the Federal Ministry of Works issued to the independent contractors a certificate of completion for executing the work according to specifications and in compliance with the Federal Highway Right of Way (ROW) requirements…” (See pages 49 – 50 of the record of appeal).
By the above stated averments, which is also in conjunction with its evidence, the respondent admitted laying its facility through Ugbokolo along Otukpo – Enugu Federal Highway, but denied trespassing on the land of the appellant. As a matter of fact, under our law the appellant who has laid claim to the land whereon the respondent purportedly buried its facility can only succeed on the strength of his case and not on any weakness of the respondent. This is to say that the appellant has to adduce legally valid evidence in order to discharge the burden of proof of the fact that the title of the land is vested on him. See the provisions of Section 131 (1) and 132 of the Evidence Act, 2011 which read thus:
131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
See also the authority of Chemiron International Limited vs. Stabilini Visinoni Limited (2018) 17 NWLR Pt. 1647, pg. 62 at 79, paras. B-C, per the noble Peter-Odili, JSC., where she held as follows:
“Firstly, the burden of proving the 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 come up from the pleadings. Therefore, if the party 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 the 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.”
Going by the foregoing authority, since the appellant is claiming customary entitlement to the land known and situate at 80 Old Otukpo – Enugu Road and upon which the respondent denied laying its cables, it behoves the appellant to satisfy the Court by adducing reasonable evidence that the land upon which the said cables were laid belong to him. In the authority of Ewo vs. Ani (2004) All FWLR Pt. 200, pg. 1480, 1492, lines C-D, the apex Court, per Kutigi, JSC., had this to say:
“He who asserts must prove. The burden of proof in a suit lies on that person who will fail if no evidence at all were given on either side. To place the burden of proof wrongly on a party will usually lead to miscarriage of justice.”
It is clear from the respondent’s case that it is not at all laying claim of ownership of any property known as No. 80 Old Otukpo – Enugu Road, Ugbokolo, hence little or no proof at all is required of the said respondent as it relates to the property. The cause of action the appellant had sued for at the lower Court is that the respondent laid its facilities or infrastructure on his land situate at No. 80 Old Otukpo/Enugu Road, Ugbokolo town of Benue State and that it thereby resulted in the tortious liability of trespass and nuisance on the land. The defense of the respondent remained that by virtue of the right of way granted by the Federal Ministry of Works to it to lay its facilities along some Federal Highways spread across all the States of Nigeria, Benue State inclusive, it laid its’ said facilities through Ugbokolo along Otukpo – Enugu Federal Highway. The respondent further denied trespassing on the land of the appellant. See paragraph 5 of the statement of defence as well as Exhibit G. Being that the respondent was to rely on the facts as pleaded by it in their statement of defence, likewise the appellant was to rely on the facts as pleaded by him, both parties were therefore expected to lead reliable and cogent evidence in substantiation of their respective pleadings.
Much as the respondent by its paragraph 3 of the statement of defence, was not laying claim to the property at No. 80 Old Otukpo – Enugu Road, it however, demanded of the appellant the strictest proof of his claim of succession or entitlement to the property. It is therefore for the appellant to establish his claim by way of credible evidence in order for him to succeed in his claim of possession and tortious act of trespass and private nuisance. It is settled on the authorities of Adu vs. Essien (2010) All FWLR Pt. 535, pg. 359, 371 and Fagunwa vs. Adibi (2004) All FWLR Pt. 226, pg. 340, that where a plaintiff lays claim for damages for trespass, as in the instant case, his title to the land upon which the alleged trespass was committed, is thus put in issue. In this regard, the plaintiff (appellant herein) must first establish his title to and or acts of possession to the land. As noted earlier in this appeal, the respondent denied encroaching and or committing any act of trespass on the purported appellant’s land. The appellant failed to discharge the burden of proof placed on him pursuant to his claim. He failed to plead and lead evidence as it touched on the proximity of his said property to the road drainage. The mere assertion that the property is known as No. 80 Old Otukpo/Enugu Road, Ugbokolo, Benue State cannot suffice in the circumstances. He alluded to being a customary owner of the property and yet he did not plead or give details of the custom pursuant to which the property became vested in him or even in his late father. Thus, the appellant’s bare allegation of customary ownership did not establish any incident of ownership or possession.
The effect is that the learned trial Judge did not refuse nor did he fail to resolve issues 1 and 2 as raised in the appellant’s written address at the lower Court and as wrongly claimed here by the appellant. It was in the course of resolving the two issues as set out above, that the trial Court held inter alia:
“… Being (sic) it Federal Road or Federal Highways, the management is under the control of Federal Ministry of Works. The Federal Ministry of Works therefore has the right as it exercised in Exhibit G by granting right of way (ROW) permit to the defendant to lay its facilities along Old Otukpo/Enugu Road, Ugbokolo, Benue State… Sadly the plaintiff was unable to refer the Court to any law or legislation divesting the Federal Ministry of Works of powers to grant the defendant the permit in Exhibit G. I have earlier referred to Federal Highway Acts Cap 135 which vests the Federal Ministry of Works to acts it did in Exhibit G. (See page 170, lines 24 – 28, page 171, lines 5 – 8 of the record of appeal).”
As shown in Exhibit G, it conveyed approval for the respondent to lay ducts and fibre optic cables along the Federal Highways Right of Way (ROW) covering a total distance of 2,343,145 metres as detailed in the attached list; while Exhibit H is a confirmation that the job was executed in line with the specifications of and in compliance with the Federal Highway Right of Way (ROW) requirements.
Although the lower Court may appear to have been silent on the issue of Old Otukpo/Enugu Road being a Federal Highway, yet the learned Court’s resolution of other issues raised for determination before him, point to the conclusion that the said Road is indeed a Federal Highway. It is on this premise that I hold that the failure of the learned trial Judge to make direct or specific pronouncement on issues 1 and 2 of the appellant’s written address has neither affected the substance of the judgment. The fundamental human right of the appellant to fair-hearing as covered by Section36(1) of the 1999 Constitution of Nigeria (as amended) was in the circumstances not impugned. More so as the learned lower Court had found and held that the Federal Ministry of Works was vested with the powers to grant permit and approval to lay facilities upon the said highway. See Exhibits G and H. Issue 1 (one) in this appeal is thus resolved in favour of the respondent and against the appellant.
RESOLUTION OF ISSUES 2 AND 3 MERGED.
Whether the Old Otukpo – Enugu Road over which Messrs. Bell-x Ltd was purportedly issued a certificate of successful execution of contract by the Federal Ministry of Works as in Exhibit H is a road included in the Item 13 and 14 of the Schedule to Exhibit G and whether there are no contradictions in exhibit (sic) G and H as to caution and restrain the learned Judge of the Court below to give any iota of weight to the said exhibits?
AND
Whether the Federal Ministry of Works is not an interested person in the outcome of the appellant’s suit at the Court below and whether the learned Judge of the Court below was right in giving any form of weight to Exhibit H same having been made or written about 2 calendar months after the commencement of the suit of the appellant?
Exhibit H captioned “Completion of Works Approval”, is a letter from the office of the Federal Controller of the Federal Ministry of Works confirming the successful execution of the job in line with the Ministry’s specifications and in compliance with the Federal Highway Right of Way (ROW) requirements. As shown on serial No. (4) in Exhibit G, Bell-X Limited carried out the laying of its fibre optics facility along the Old and New Enugu – Makurdi Expressway in Ugbokolo with the approval of the Federal Ministry of Works. A mere assertion in the appellant’s reply brief suggesting that the respondent was not granted a Right of Way (ROW) by the Federal Ministry Works to set up its facilities along the “single lane carriage road that passed through the centre of Ugbokolo town” is neither here nor there. It is not relevant to the fact in issue which fact is that the ROW as granted the respondent included the Old and New Enugu – Makurdi Expressway in Ugbokolo. Single lane carriage road that passed through the centre of Ugbokolo, may or may not be listed as a federal highway. Be that as it may, it does not remove from the fact that the Old and New Makurdi Expressway was listed by the Federal Ministry of Works for the laying of the respondent’s fibre optic facilities as per Exhibit G admitted in evidence at the lower Court.
Indeed, in paragraph 4(a) – (e) of the appellant’s reply to the respondent’s statement of defence, the appellant joined issues with paragraph 5 of the respondent’s statement of defence where he stated that the Old Otukpo/Enugu Road is not a Federal Highway to justify the act of the respondent laying its facility along the said road. For ease of reference paragraph 4(b), (c) and (d) of the appellant’s reply to the respondent’s statement of defence read:
4(b) The Old Otukpo- Enugu Road is not designated as a Federal Highway.
4(c) The said road is not included in the schedules to the purported letter of approval granting a right of way to the defendant by the Federal Ministry of Works.
4(d) The only Federal Highway that passes through Ugbokolo is the Express-way from Enugu and Ankpa to Makurdi and this road passed the out-skirt of Ugbokolo town and same served as a bye-pass to the town and the plaintiff state categorically that the defendant did not lay it’s underground facilities along this road especially within the vicinity of Ugbokolo town.
This undoubtedly put the legal status of the Old Otukpo-Enugu Road, Ugbokolo along which road the purported property of the appellant is located, in issue. It is thus for the respondent to satisfy the Court by credible evidence backed up by pleadings, that it set up its facilities at the Old Otukpo/Enugu Road, Ugbokolo and that it was one of the Federal Highways earmarked for that. The appellant in the course of his being cross-examined stated inter alia that:
“The road is a Federal Road but not a Federal Highway. …. From the drainage system to the pedestrian lane to the man road, I do not have land there. That part belongs to the Federal Government. From the drainage system to the left or inward is my land. The drainage system is the boundary of my property.” (See page 149 of the record of appeal).
As can be gleaned from paragraphs 5 and 6 of the respondent’s statement of defence and as clearly set out earlier in this judgment, the said respondent applied and was issued the right of way permit by the Federal Ministry of Works consequent upon which it proceeded to install its facilities along the said Old Otukpo/Enugu Expressway, Ugbokolo. Although there appears to be some mix-up in the names of the road as they appeared in the schedule to (Exhibit G), and those in Exhibit H which is the completion of work approval, however, they obviously are referring to the same route. Whether it is termed a Federal Highway or a Federal Road, the subject matter is a public highway which is totally within the control of the Federal Government and therefore covered by the right of way (ROW) issued to the respondent along which to lay its fibre optic facility. The provisions of the Federal Highway Acts Cap 135, Laws of the Federation, 1990 vest the powers of management, direction and control of Federal Highways throughout Nigeria in the Minister of Works and Housing. As rightly found by the learned trial Judge, “the distinction made by the Plaintiff (appellant herein) as to Federal road not being a Federal Highway is a distinction without a difference”. See also the authority of Reynolds Construction Co. (Nig.) Ltd. vs. Okwejiminor (2002) FWLR 1934 at 1941. However, both Exhibits G and H are valid proof of the fact that the respondent in compliance with the terms specified in Exhibit G performed the job satisfactorily. I think that it is beyond the locus of the appellant to question the justiciability of the respondent laying or not laying its facility along the said Old Otukpo/Enugu Road, Ugbokolo, Benue State, more so as he has not shown the road to be his private thoroughfare. I therefore resolve issues 2 (two) and 3 (three) in favour of the respondent and against the appellant.
ISSUE 4 (FOUR)
Whether the Federal Ministry of Works is a necessary party to the appellant’s suit, the suit being an action grounded in the law of trespass to land and private nuisance to land and if this question is answered in the negative or in the positive, whether the non-joinder of the Federal Ministry of Works to the suit can affect the outcome of the suit of the appellant in any way?
The appellant submitted under this issue that the learned Judge of the Court below shot the law on the head when he held that the appellant ought to have joined the Federal Ministry of Works to the suit. Appellant argued that his case as constituted in the statement of claim does not disclose any cause of action whatsoever against the Federal Ministry of Works and so the opinion held by the learned Judge of the Court below that the appellant ought to have joined the Federal Ministry of Works to the suit does not arise at all especially as none of the reliefs sought by him touched on the interest of the Federal Ministry of Works in any way.
The learned counsel for the appellant would do well not to cite out of context, the findings of the learned lower Court. The learned trial Judge had rightly found in his judgment that the Federal Ministry of Works has the right it granted to the respondent to lay its facility along Old Otukpo Road, Ugbokolo, Benue State and that if the appellant was aggrieved by the grant of the permit in Exhibit G, he ought to join the Federal Ministry of Works as a necessary party. I need to reproduce the finding on this by the learned trial Judge for a better appreciation of same and it reads: “… The Federal Ministry of Works therefore has the right as it exercised in Exhibit G by granting right of way (ROW) permit to the defendant (respondent) to lay its facilities along Old Otukpo Road, Ugbokolo, Benue State. If the Plaintiff was aggrieved by the grant of the permit in Exhibit G, by Federal Ministry of Works, he ought to join the Federal Ministry of Works as a necessary party, but having conceded that Ugbokolo – Enugu Road where the Defendant’s facilities were laid is a Federal Road, it is doubtful if he can maintain an action against the Federal Ministry of Work. [Underlining mine for emphasis. (See page 170, lines 25 – 30 and page 171, lines 1 – 2 of the record of appeal)].
It is a pity to say the least, that a mere hypothesis or suggestion of the learned trial Judge was what the learned counsel for the appellant read an injunctive meaning into. The learned counsel most unfortunately, made it a point of duty to turn every utterance be it by way of obiter or otherwise into a ground of appeal, hence the proliferation of issues for determination. To think that the issues are most inelegantly drafted. At the end of the day, it is left to the appellant being the aggrieved party to determine who to sue and who not to sue. It is not for the Court to determine that neither did it do so for him. The lower Court only suggested that if the plaintiff was aggrieved by the (ROW) permit granted by the Federal Ministry of Works to the respondent to carry out its activity on the Old Otukpo/Enugu Road, Ugbokolo, that he should have joined the said Ministry of Works as a necessary party. It was not at all the intention of the learned trial Judge to tell the appellant, neither did he tell the appellant who to sue and who not to sue in the circumstances.
The question whether the Federal Ministry of Works is a necessary party in the appellant’s suit is entirely at the discretion of the said appellant to settle. It is neither the business of the learned trial Court nor that of the respondent whether the appellant joined or did not join the Federal Ministry of Works as a party. Suffice it to say that the lower Court did not in any way see it as nor did it assume it to be its business or concern whether the appellant joined or failed to join the Federal Ministry of Works to be a party in the suit.
The issue whether the Federal Ministry of Works is a necessary party to the appellant’s suit, the suit being an action grounded in the law of trespass to land and private nuisance to land and if this question is answered in the “negative or in the positive”, whether the non-joinder of the Federal Ministry of Works to the suit can affect the outcome of the suit of the appellant in any way, is to my mind, totally misplaced and uncalled for. I shall for this reason resolve issue 4(four) against the appellant and in favour of the respondent.
RESOLUTION OF ISSUE 5 (FIVE)
Whether the learned Judge of the Court below was right when he held that Messrs. Bell-x is an independent contractor to the respondent and as such, the respondent is not a proper party to the suit of the appellant?
The respondent averred in paragraph 7 of its statement of defence that it engaged the services of Messrs. Bell-X as an independent contractor who executed and installed the respondent’s fibre optic cables. The appellant joined issue with the respondent by stating that Messrs. Bell-X is an agent to the respondent. Appellant argued that the respondent did not call any form of evidence whether oral or documentary to prove that Messrs. Bell-x Ltd. is an independent contractor as opposed to being its agent. That despite the lack of proof of the said fact, the learned Judge of the lower Court went ahead in his judgment to believe the respondent’s claim that Messrs. Bell-x Ltd. is an independent contractor and this finding of fact weighed heavily on the mind of the learned Judge in dismissing the case of the appellant. Appellant urged on us to hold that by the assertion of the learned Judge of the Court below that Messrs. Bell-x is an independent contractor to the respondent, the said Judge drew a completely wrong inference from a fact not proved before him and that said finding of fact is perverse and has occasioned a miscarriage of justice to the appellant.
I do not think that the learned trial Judge needed to depend on the formal calling of evidence by any of the parties before he could determine the difference between an agent and an independent contractor. Having satisfied himself that the appellant failed to prove ownership or the right to exclusive possession of the property purportedly known as No. 80 Old Otukpo Road, Ugbokolo, the learned Court held and rightly too, that it will be immaterial if the defendant (respondent) trespassed on the purported property or not. The learned trial Judge went further to state as follows:
“Where an action for trespass fails, the issue whether Messrs. Bell-X is an independent contractor or an agent of the Defendant is immaterial…… in this case the Defendant has established by his pleading and evidence including Exhibit B that independent contractor in person of Messrs. Bell-X Ltd. was engaged to handle the laying of its ducts and fibre optic cables along the Federal Highways Right of Way (RoW) as in Exhibit G, from Federal Ministry of Works. [Underlining mine. (See page 169 of the record of appeal)].
I wonder in the face of particularly Exhibits B and G referred to in the foregoing, the other evidence (oral or documentary) the appellant needed to satisfy himself that the learned trial Judge reached the unassailable conclusion that Messrs. Bell-X is an independent contractor engaged as such by the respondent. Suffice it to say that the lower Court arrived at the decision based on the evidence before it and I find nowhere, where the learned trial Judge held in his whole judgment that the respondent is not a proper party to the appellant’s suit. It is therefore a misconception on the part of the appellant to suggest that the decision of the learned trial Judge was reached without evidence or arbitrarily. It is in this vein that I shall resolve this issue 5 (five) in favour of the respondent and against the appellant.
RESOLUTION OF ISSUES SIX AND SEVEN MERGED
Whether the appellant did not sufficiently prove ownership and possession of the land the subject matter of suit as alleged by the learned trial Judge to disentitle the appellant the favorable judgment of the Court below?
AND
Whether the finding of fact of the learned trial Judge of the Court below as paraphrased in ground 7 of the notice and grounds of appeal is not perverse and whether same has not occasioned a miscarriage of justice?
As rightly submitted by the appellant, all that he is required to show to succeed in his claim for trespass and private nuisance in the circumstances of the case is to prove his act of possession and the physical entry of the respondent into the land in issue. See Ufomba vs. Ahuchaogu (2003) FWLR Pt. 157, pg. 1013 at 1028, line C-E. However, in his attempt to establish his acts of possession on the land the appellant testified that he has:
i. two large buildings containing 20 rooms and 6 shops on the land in issue;
ii. a welder workshop and a generator repairing workshop on the adjourning land to his building; and
iii. the said land and property is fenced and the respondent had access into the compound by digging a pit under the fence, See paragraphs 6, 10 and 11 of the statement of claim.
The appellant went on to testify that he inherited the property from his late father Audu Adikwu who became vested with the property purportedly known as No. 80 Old Otukpo Road, Ugbokolo, Benue State by customary acquisition. The appellant further testified that the property is in the centre of Ugbokolo town almost adjacent to the main gate of Ugbokolo main market. The law is that he who avers proves more so when the plaintiff has been put to the strictest proof of ownership of the property. The appellant had produced a document marked Exhibit D as his means of proof of his entitlement. The said Exhibit D conveys the grant of Letters of Administration of the personal property of MWO Audu Adikwu Ankwa (late) to vest on Barrister E. A. Audu of No. 3 Balarabe Mummud Street, off Ja-Abdukadari Road, U/Rimi Kaduna State. This grant which is limited to personal property of the appellant’s late father does not cover real properties such as the purported No. 80 Old Otukpo Road, Ugbokolo being claimed by the appellant. Exhibit D will therefore not avail the appellant as a proof of title to any real property. The appellant did not on the other part lead any evidence of who and who witnessed the mode of the customary acquisition of the land by his late father. With no clear-cut evidence regarding how he became vested or how he acquired title over the land, more so as the respondent is uncertain of the land in question, the appellant cannot lay any claim to trespass or encroachment over land. This is in tune with the enunciation of the apex Court in the case of Odunze vs. Nwosu (2007) 13 NWLR Pt. 1050, pg. 1 at 53, paras. E-F, where it held that:
“It is settled in law that where a plaintiff claims for damages for trespass, as in the instant case, his title to the land allegedly trespassed upon is thereby put in issue. In other words, for the plaintiff to succeed, he must first establish his title to the land in dispute before proceeding to establish possession.”
The appellant failed to establish ownership and so he cannot even begin to talk of possession through which he can then proceed to make claims of trespass. In a claim of this nature, the appellant can succeed mainly on the strength of his case as opposed to the weakness of the adverse party. It was not enough for him to make a blanket claim of residing and or having tenants on the property without more. The appellant in the instant case indeed failed to establish his claim of ownership to any definite and accurate location of the property known as No. 80 Old Otukpo, Road Ugbokolo. Exhibit D has not conferred title in the appellant and as such his claim in trespass and private nuisance is a lame duck. The question whether the appellant did not sufficiently prove ownership and possession of the land the subject matter of his suit so much so as to disentitle him of the favorable judgment of the Court below, is accordingly answered in the positive. I am saying that the appellant failed to discharge the burden laid on him in order for him to succeed in his claim for damages in trespass and private nuisance. Issue 6 is therefore resolved in favour of the respondent and against the appellant.
Issue 7 (seven) arose from ground 7 (seven) and the said ground 7 (seven) reads as follows:
The learned Judge of the Court below erred in law and therefore came to a wrong decision when he held:
“The defendant has never claimed ownership or possession of the land. The defendant maintained that he was granted permit to lay its facilities within the parameters of the Federal highways. His (sic) laying of cables facilities on the land is sequel to the right of way (Row) granted it by the Federal Ministry of Works in Exhibit G. It is therefore no issue of two parties laying claims to ownership to land where the slightest amount of possession by the plaintiff (sic) will suffice. The plaintiff in the circumstances has the burden to prove ownership and/or exclusive right to possession of the land in issue. The denial of ownership of the land trespassed on by the defense was not a general denial but a specific denial which puts (sic) the burden of prove (sic) on the plaintiff to establish with definite certainty the property which is the subject of this case by giving vivid description, the boundary and dimension of the land, the title deed if any like the production of certificate or other documents or evidence showing that he actually owned the property which the defendant had trespassed into and cause nuisance” (underlining supplied for emphasis). [See page 180 of the record of appeal].
The foregoing findings and holding of the learned trial Judge is unimpeachable and highly supportable by the evidence and materials documentary and otherwise laid before him. The claim of the appellant bordered on the tort of trespass to land and private nuisance both of which cannot stand in the absence of proof of ownership or possessory right duly vested on the said appellant. Tortious act of trespass includes physical entry however slight, by the adverse party upon the property of the claimant without the claimant’s permission or consent. The appellant in the circumstances of the instant case, neither pleaded nor led evidence in satisfaction of his claim. There is nothing perverse in the above stated finding of the learned trial Judge. On the contrary the claim of the appellant smacks of nothing but frivolity and gold digging. Issue 7 (seven) is therefore resolved in favour of the respondent and against the appellant.
Having determined all the 7 (seven) issues in favour of the respondent and against the appellant, it follows that the appeal lacks merit in its entirety. The appeal is therefore dismissed and the judgment of the learned trial Judge Hon. Justice D. E. Igoh, J., in Suit No. OKP/HC/12/2013 delivered 25th November, 2014 is consequently affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, Hon. Justice C. Ifeoma Jombo-Ofo, JCA, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.
Having determined all the 7 (seven) Issues in favour of the Respondent and against the Appellant, it follows that the appeal lacks merit in its entirety. The appeal is therefore dismissed and the judgment of the learned trial Judge, Hon. Justice D.E. Igoh, J., in Suit No. OKP/HC/12/2013 delivered on 25th November, 2014 is consequently affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the leading Judgment just delivered by my learned brother C. IFEOMA JOMBO-OFO, JCA and I completely identify with him that this appeal lacks merit in its entirety and is therefore dismissed in like terms as the lead judgment. Just for purpose of emphasis, I wish to state that the Appellant’s claim of trespass and private nuisance against the Respondent must be proved with cogent and reliable evidence and the Appellant must succeed on the strength of his case and not on the weakness of the Respondent’s case as held in ORIANZI V. AG RIVERS STATE & ORS (2017) LPELR-41737(SC), ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) and LAWSON V. AJIBULU (1997) LPELR- 1766(SC).
However, in the instant case, the Appellant only claimed that he inherited the property from his late father Audu Adikwu who became vested with the property purportedly known as No. 80 Old Otukpo Road, Ugbokolo, Benue State by customary acquisition without leading any evidence of who and who witnessed the mode of the customary acquisition of the land by his late father neither did he show how he became vested or acquired title over the land. See the case of SORONNADI & ANOR V. DURUGO & ANOR (2018) LPELR-46319(SC) wherein the apex Court held thusly:
“In order to prove the transfer of land under customary law, certain facts must be established. It must be pleaded and proved that the grant was made in the presence of witnesses who saw the actual handing over of the property. The names of the persons who witnessed the transfer and handing over must be pleaded. See Cole vs Folami 1 FSC 66, Folarin vs Durojaiye (1988) 1 NWLR (Pt. 70) 351 at 353 & 365 D – E; Mogaji VS Odofin (1978) 4 SC 91 at 96.” per KEKERE-EKuN, J.S.C.
The Appellant failed to establish ownership and so he cannot even begin to talk of possession through which he can then proceed to make claims of trespass. For the Appellant to succeed in his claim of trespass and private nuisance against the Respondent, the Appellant must prove possession and the physical entry of the Respondent into the land in issue as held in ADEYEFA & ORS V. BAMGBOYE (2014) LPELR-22884(SC) thusly:
“…It is my considered view that whether the claims of the Appellants are nuisance and trespass and injunction, the law demands that the plaintiffs in must able to prove he is in possession. I am fortified by the decisions of the Supreme Court in OKORIE VS. UDOM (1960) S FSC 162 AT 165 per Fatayi-Williams, JSC as he then was (of blessed memory) Amakor vs. Obiefuna (1914) 1 All NLR (Pt. 1) page 116, lines 4 to 9). Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiff needs to prove is that he has exclusive possession, or he has the right to such possession of the land in dispute. In OWE V. OSHINBAJO (1965) LPELR-25236(SC) the defendant as the trespasser can only justify his entry on the land by showing a better title.” Per MUNTAKA-COOMASSIE, J.S.C.
Therefore, failure to discharge the burden laid on the Appellant in order for him to succeed in his claim for damages in trespass and private nuisance, his claim cannot succeed.
It is in light of the above reason and the elaborate ones contained in the leading judgment which I adopt as mine, the appeal lacks merit and is hereby dismissed.
I also abide by the other orders made in the lead judgment.
Appearances:
B. U. Ohene, Esq. For Appellant(s)
Ogechi Ogbonna, Esq., with him, Bassan Swanta, Esq. For Respondent(s)
