AUGUSTINE KANE DANWE & ORS v. ALHAJI HAMMAN ADAMA TUKUR
(2019)LCN/13853(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2019
CA/YL/115/2018
RATIO
SPECIAL DAMAGES: HOW A PLAINTIFF CAN CLAIM SPECIAL DAMAGES
To succeed for the award of special damages, the plaintiff or claimant (in this case the Respondent) must specifically plead same and strictly prove it by credible and ascertainable facts by way of evidence led. See: Anyanwu V. Uzowuaka (2009) 13 NWLR (Pt. 1159)445 (SC). PER SAIDU TANKO HUSSAINI, J.C.A.
WHEN A JUDGMENT IS PERVERSE
Of course that aspect of the Judgment and order of the trial Court must be set aside as perverse. A finding is perverse if it is not borne out of the evidence before the Court. It is speculative. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial Judge. See Iwuoha Vs. Nipost Ltd (2003) 8 NWLR (Pt. 822) 308. PER SAIDU TANKO HUSSAINI, J.C.A.
ESTOPPEL: DEFINITION
In Bamishebi V. Faleye (1987) 2 NWLR (Pt. 54) 51 the apex Court in reference to the decision in Samuel Fadiora & Anor Vs. Festus Gbadebo & Anor. (1987) 3 SC 219, 228 held that:
There is however a second kind of estoppel inter partes and this usually occurs when an issue has earlier been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in ?issue estoppel arises. This is based on the principle of law that a party is not allowed to (i.e he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with solemnity been determined against him. PER SAIDU TANKO HUSSAINI, J.C.A.
HOW A PLAINTIFF CAN PROVE IDENTITY OF LAND
In dealing with the first, i.e in relation to the identity of land in question, the plaintiff or claimant must give the description of the land, the location, size, boundary neighbour and if there are features on the land which give it a distinctive outlook, state those features on the land in such a manner that will guide the surveyor in preparing a plan of the said land. See: Atanda Vs. Ajani (1989) 3 SCNJ1, 8; Ekpemupolo Vs Edremoda (2009) 8 NWLR (Pt. 1442)166 (SC). PER SAIDU TANKO HUSSAINI, J.C.A.
DUTY TO PROVE IDENTITY OF LAND ON A PLAINTIFF WILL ARISE WHEN THE DEFENCE PLEADS IT
The duty to prove the identity of land will not arise where the land is known to the two contending parties. This duty on the claimant arises where the adverse party raise it in his defence pleading as an issue. See: Ayanwale Vs. Odusami (supra). PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. AUGUSTINE KANE DANWE
2. SANTI KANE DANWE
3. KUGWA KANE DANWE
4. MAZAN KANE DANWE
5. TIPPI KANE DANWE
6. TARI VALANG
7. MAJO SANI
8. ELI TULLA Appellant(s)
AND
ALHAJI HAMMAN ADAMA TUKUR Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Respondent was plaintiff at the High Court of Justice, Taraba State sitting in Jalingo. He commenced action at that Court vide the Writ of Summons and the statement of claim dated the 26th May, 2017 and filed the same day as Suit No. TRSJ/71/2017. The claim at the trial High Court is circumscribed at paragraph 28 of the statement of claim.
Put succinctly, the claim at the trial Court is for:-
(a) A declaration that the Plaintiff is entitled to the land and Right of Occupancy over all that parcel of land measuring 92.14 hectares lying and situate at Garin Abbajo Ardo Kola Local Government of Taraba State covered by Taraba State Right of Occupancy number TS/4133 and Jalingo Local Government Certificate of Occupancy number JLG/00347 to him by his father
(b) A declaration that the Plaintiff is entitled to all that parcel of land lying and situate at Garin Abbajo Ardo Kola Local Government of Taraba State measuring 42.2 hectares purchased from Mato Madin and Murtala Maigari Gassol.
(c) A declaration that the Plaintiff is entitled to all that parcel of land measuring 134.34 hectares lying and situate at Garin Abbajo in Ardo Kola Local Government Area of Taraba State which consist the portion covered by grant of Right of Occupancy No. TS/4133 and the portions purchased from Murtala Maigari Gassol and Mato Madin.
(d) A perpetual injunction restraining the Defendants either in person, privies, servant or assigns or however related or called from entering into or tempering with the Plaintiff?s right over the land.
(e) An order of this Court declaring the Defendants as trespassers on the land.
(f) An order of Court awarding the sum of N6,900,000.00 (Six Million Nine Hundred Thousand Naira) Only as special damages in favour of the Plaintiff.
(g) An order of Court awarding the Plaintiff general damages of N10, 00, 00 (Ten Million Naira) Only for trespass.
(h) 10% yearly interest on the Judgment sum from the date of Judgment in this suit until final liquidation.
(i) Cost of litigation in this suit inclusive of Professional fees paid to plaintiff?s Counsel by the Plaintiff for the prosecution of this suit.
The appellants then defendants at the trial High Court denied the claim. They put in a joint statement of defence as at pages 148-153 of the record of appeal. The matter proceeded into trial with parties on both sides adducing evidence of witnesses. Documents were also tendered by the appellants as plaintiffs and same admitted as Exhibits in the case. The appellants did not tender any document although 4 (four) witnesses were called who testified on their behalf.
The summary of the case for the appellants is that he is the owner of that parcel of land covering approximately 92 hectares given to him by his father. Subsequent to that, he negotiated and purchased 2 (two) other pieces of land adjoining the land given to him by his father and merged the 3 (three) together as one.
Before the purchase of these other 2 (two) and merger of same, the appellant by his evidence applied and was issued with a Customary Certificate of Occupancy by Jalingo Local Government in respect of the land given to him by his father.
Later, on the application made by the appellant he was also issued with a letter of grant of a Right of Occupancy issued by Taraba State Government on the 29th November, 1993.
What necessitated the action leading to the appeal is what the respondent described as acts of trespass by the appellants hence the claim in terms of the reliefs here before mentioned.
For the appellants (the 1st Appellant in particular) the entire land in dispute belong to him having inherited that land from his father. He claimed that the land was first acquired by his grandfather who left same to his father. He has exercised absolute acts of ownership over the land in dispute for 25 year. Sometimes in the years 2004, the plaintiff/respondent forcefully trespassed into the land in dispute thus necessitating Court case in the year 2004.
According to the 1st appellant, while the matter was still in Court, the respondent started planting economic trees on the land.
The trial Court, at the close of evidence paid an inspection visit to the locus In quo to see ?things? for itself. Thereafter the Court took counsel?s final addresses and delivered a considered Judgment on the 4th May, 2018, granting the claim.
Against the Judgment of the trial High Court, the appellants filed 2 (two) Notices of Appeal. The first is dated the 27th July, 2018, was filed on the 30th July, 2018 containing only the Omnibus ground of Appeal. The second, dated the 28th July, 2018 containing 6 (six) grounds of Appeal was filed on the 1st August, 2018. The two Notices of Appeal were filed within time however, the former that is, the Notice of appeal dated 27th July, 2018 and filed on 30th July, 2017 was withdrawn and consequently, struck out at the hearing of the appeal.
Upon the transmission of record of appeal to this Court, parties through their counsel respectively filed and exchanged their briefs of argument namely:-
(1) The brief of argument for the Appellant dated 20th September, 2018 was filed on the 21st September, 2018 wherein counsel at pages 2-3 of the said brief of argument raised 4(four) issues for determination:
i. Whether the trial Court was not wrong in law when it awarded the sum of N1, 500,00.00k (One Million, Five Hundred Thousand Naira) as special damages and the sum of N100,00.00 (One Hundred Thousand Naira ) Only as general damages against the Appellants despite its findings that there is no evidence to support the claim of special damages? (Distilled from ground IV and V).
ii. Whether the Trial Court was not wrong in law when it declared title of the disputed land to the respondent despite the contradictions with respect to the identity/description of the boundaries of the disputed land? (distilled from ground II) .
iii. Whether the trial Court was right in law when it declared title of the disputed land to the Respondent when the evidence in support of the alleged gift of the land to the Respondent and the evidence of traditional history relied upon is contradictory (distilled from ground II and VI).
iv. Whether the trial Court was not wrong in its evaluation of the facts when it preferred the traditional history of the Respondent to that of the Appellants premised on its findings that KANI DANWE the father to the 1st Appellant testified in Exhibit 2 that the disputed land belong to JAURO GANA. (Distilled from ground I)
(2) The brief of argument for the Respondent dated 22nd October, 2018 was filed same date wherein counsel speaking for him raised 2 (two) issues at page 2 of the said brief. Issues for determination are:
(i) Whether the trial Court was right when it entered Judgment for the Plaintiff on the evidence before it in respect of the land in dispute.
(ii) Whether the Trial Court was right when it made an award of N1,500,000.00 as special damages and N100,00.00 as general damages.
The appeal was heard on 21st November, 2018 Messrs O.D. Ovoyenta and M.P. Atsev, learned counsel for the appellants and respondent respectively adopted their briefs of argument.
The former has urged us to allow this appeal and set aside the Judgment of the trial High Court.
The latter that is, Mr. Atsev, has urged us to dismiss this appeal.
In addressing this appeal, I adopt the 4 (four) issues distilled by the appellants in their brief of argument.
Counsel?s argument.
[A] Issue No. 1.
i. Whether the trial Court was not wrong in law when it awarded the sum of N1,500,00.00k (One Million, Five Hundred Thousand Naira) as special damages and the sum of N100,00.00 (One Hundred Thousand Naira) Only as general damages against the Appellants despite its findings that there is no evidence to support the claim of special damages? (Distilled from ground IV and V).
It was argued for the appellant on this point that the trial Court was in error to order the sum of N1,500,000.00 special damages whereas same was neither sought nor proved. He argued that the Court having found that the claim to N6,900, 000.00 as special damages was not proved or substantiated the Court could not turnaround to award the sum of N1, 500,000 (One Million Five Hundred Thousand) as special damages in favour of the respondent.
As regards the sum of N100, 000k ordered as general damages for the respondent, appellants counsel argue that there was no basis for this in action for trespass. He argued that the appellants having been discharged and acquitted at the High Court over the same cause of action the appellants cannot be found liable for that act. Learned appellants? counsel urged us to resolve Issue 1 in favour of the appellants.
Speaking for the respondent on this point his counsel argue that the sum of N1,500, 000.00 assessed as special damages for the respondent was in order, same having been proven notwithstanding that the Court dismissed the claim for N6, 900, 000.00 as special damages.
As regards the award of N100, 000 as general damages, again it was argued that same was in order so far as there was nothing before the trial Court by way of a certified Judgment of the High Court showing or indicating that the appellants had been discharged and acquitted from the same cause of action in trespass. We were urged to resolve this issue in favour of the Respondent.
Issue No. 2
