BABAYE v. MTN NIG. COMM. LTD (2020)

BABAYE v. MTN NIG. COMM. LTD

(2020)LCN/14796(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, November 05, 2020

CA/J/51/2020

RATIO

APPEAL: POWER OF THE APPEAL COURT TO REFORMULATE ISSUES FOR DETERMINATION

The issues identified by both parties are similar but couched differently. Although when confronted with clumsy and inelegantly drafted issues, the Appeal Court is at liberty to reformulate them for the purpose of accentuating the questions in controversy. See Ukiri Vs. Geo-Prakla (Nig.) Ltd. (2010)16 NWLR (Pt. 1220) 544 and Nzekwe Vs. Anaekwenegbu (2019)8 NWLR (Pt. 1674) 235. PER HASSAN, J.C.A.

PRELIMINARY OBJECTION: WHAT SHOULD A PRELIMINARY OBJECTION BE FILED AGAINST

In Daudu Vs. F. R. N. (2018) 10 NWLR (Pt. 1626) 169, Aka’ahs JSC, struck out the preliminary objection therein because it was not the appropriate mode to complain about some of the grounds of appeal. Rhodes-Vivour JSC in Adejumo Vs. Olawaiye (2014) 12 NWLR (Pt. 1421) 252 at 279 held that:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal … where a preliminary objection would not be appropriate process to object or show to the Court defects in process before it, a motion on notice filed complaining of a few grounds or defects would suffice.” PER HASSAN, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TO EVALUATION OF EVIDENCE

Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts – Ezeani Vs. F.R.N. (2019) 12 NWLR (Pt. 1686) 221 at 230, see also Onyekwuluje Vs. Animashaun (2019) 4 NWLR (Pt. 1662) 242; Buhari Vs. INEC (2008) 19 NWLR (Pt. 1120) 246 and Zaccala Vs. Edosa (2018) 6 NWLR (pt. 1616) 528. Ordinarily, the appellate Court should not, and may not interfere in the finding of fact by the trial Court where the duty has been properly carried out by the trial Court. PER HASSAN, J.C.A.

LAND TRESPASS: NATURE OF AN ACTION IN TRESPASS

There is no doubt, trespass is actionable parse. A person who is able to prove exclusive possession of a piece of land can maintain an action in trespass against any person, unless such a person can prove a better title to the land. See Ozuzu Vs. Emewu (2019) 13 NWLR (Pt. 1688) 143 at 146 and Orlu Vs. Onyeka (2018) 3 NWLR (Pt. 1607) 467. PER HASSAN, J.C.A.

DEED: WHEN WILL A DEED OF ASSIGNMENT BE CONCLUSIVE PROOF OF OWNERSHIP OF THE PROPERTY

FINDINGS: WHAT CONSTITUTES A PERVERSE FINDING

A perverse finding is one that is unreasonable and unacceptable having been arrived at completely outside the evidence before the Court or on the basis of wrong application of the law to the evidence before the Court. See Abdulrahman Vs. State (2019) 5 NWLR (Pt. 1664) 162 at 166 and Mbachu Vs. State (2018) 17 NWLR (Pt. 1649) 395 where the Supreme Court, stated that a decision would be regarded as perverse in any of the following situation:
(a) when it runs counter to the evidence; or
(b) when it has shown the trial Court took into account matters which ought not to have taken into account or shuts its eyes to the obvious; or
(c) when it has occasioned a miscarriage of justice, see also Misr Vs. Ibrahim (1975) 5 SC 55.
This is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court. A judgment of a trial Court without considering a material and crucial evidence is perverse and would be set aside for occasioning a clear miscarriage of justice – Fredrick Vs. Ibekwe (2019) 17 NWLR (Pt. 1702) 467 at 474. See also Saleh Vs. State (2019) 8 NWLR (Pt. 1675) 416; Tukur Vs. UBA Plc. (2013) 4 NWLR (Pt. 1343) 90 and CPC Vs. Ombugadu (2013) 18 NWLR (Pt. 1385) 66. PER HASSAN, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

HASSAN MUSA BABAYE APPELANT(S)

And

MTN NIGERIA COMMUNICATIONS LTD. RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of Bauchi State High Court delivered on the 25th day of April, 2017 in Suit No. BA/212/2014 by Honourable Justice M.A. Sambo.

The appellant as plaintiff at the lower Court commenced an action by an Amended Writ of Summons and Statement of Claim dated 15th May, 2016, against the defendant/respondent as follows:
1. An order of declaration that the occupation and usage of the plaintiff’s land situated at Babaye Darazo Local Government Bauchi State from 2003-2013 is unlawful and same amounts to trespass having not fulfilled the condition between the MTN Staff and the plaintiff e.g the execution of a deed of lease.
2. An order of declaration that the occupation and usage of the land in question by the Defendant from 2013 till the judgment of this Honourable Court amounts to trespass the proposed lease agreement having failed.
3. An order removing the Defendants from the said land and compelling them to vacate the said land forthwith.
4. An order against the Defendant to pay the plaintiff the sum of

N12,000,000.00 (Twelve Million Naira) only as general damages.
5. An order against the Defendant to pay the plaintiff the sum of N10,000,000.00 (Ten Million Naira) as special damages.
PARTICULARS OF SPECIAL DAMAGES
(a) That inability of the plaintiff to farm on the said land in question has caused him not only economic lost but also subjected him to psychological trauma having been deprived of the joy of farming.
(b) The Defendant during the installation of their mast removed and destroyed 30 years old tama trees (an economical tree) value of which is put at N6,000,000.00
(c) That the plaintiff has been for the period in question deprived of farming on the said portion of land.
(d) That the plaintiff gets at least 15 bags of guinea corn from the said portion of land occupied by the Defendant yearly if he had been allowed to farm for the period in question, cost of which is put at N4,000,000.00.

The Defendant/respondent Amended Statement of defence was dated 6th day of October, 2016.

The plaintiff/appellant in proof of his case called two witnesses and testified for himself. He tendered six exhibits marked “A,

C-F”. The Defendant/respondent testified on its behalf and tendered exhibits “G, H, I and J”. At the conclusion of trial, the Court dismissed the plaintiff/appellant’s claims.

Being dissatisfied with the judgment, the plaintiff/appellant appealed to this Court upon a Notice of Appeal containing six grounds with their particulars.

Parties filed their respective briefs of argument. The appellant by his brief of argument dated 24th February, 2020 and deemed properly filed on 24/9/2020, filed by Sama’ila Idris Esq., formulated four issues for determination thus:
1. “Whether the lower Court was right in refraining from pronouncing the legal status of exhibits G, H, I and J in relation to their admissibility and consequently not expunging same in the light of Section 15 of the Land Registration Law of Bauchi State Cap. 80. And whether the said exhibits deserve accordance of words in any case by the lower Court.” (Grd 2)
2. Whether assuming not conceeding exhibit “I”, is legally admissible, whether the lower Court was right to have construed same as a binding instrument

governing the relationship between the plaintiff/appellant and the defendant/respondent (Grd 3)
3. Whether the non-consideration and accordance of probative value to the exhibits tendered by the plaintiff/appellant constitute breach of his (the appellant’s) right to fair hearing. Hence perverse and injurious to his case (Grd 4).
4. Whether the lower Court was right in dismissing the plaintiff/appellant’s suit for lack of evidence. And whether the decision is not perverse considering the facts and circumstances of the case (Grds 1 and 6).

The respondent’s brief dated 26th March, 2020, filed on 24th April, 2020 but deemed properly filed on 24th September, 2020 by Irorakpor C.C. Esq. identified four issues for determination thus:
i. “Whether the Honourable Court properly considered the legal status of exhibits G, H, I and J with regard to Section 15 of the Land Registration Law of Bauchi State Cap. 80 before upholding their admissibility (Grd 2).
ii. Whether the judgment of the Honourable Court that upholds exhibit 1 as a valid instrument governing the transaction between the appellant and the respondent is

justifiable? (Grd 3)
iii. Whether the Honourable Court carefully accessed and appraised evidence on record particularly exhibits tendered by the appellant? (Grd 4)
iv. Whether the judgment of the Honourable Court that dismissed the appellant’s suit for want of evidence is perverse? (Grds 1 and 5)

There is incorporated in the respondent’s brief a Notice of preliminary objection.

The appellant filed a reply brief in response to the preliminary objection and the respondent’s brief of argument. The reply brief dated 4th of May, 2020 was filed on 15th May, 2020 but deemed properly filed on 24th September, 2020. Counsel to both parties adopted their briefs. While the appellant’s counsel urged us to allow the appeal, the respondent’s counsel urged the Court to dismiss the appeal.

I had mentioned above that notice of appeal has 6 grounds. The appellant distilled 4 issues from the grounds of appeal. The respondent also formulated 4 issues from the grounds of appeal. The issues identified by both parties are similar but couched differently. Although when confronted with clumsy and inelegantly drafted

issues, the Appeal Court is at liberty to reformulate them for the purpose of accentuating the questions in controversy. See Ukiri Vs. Geo-Prakla (Nig.) Ltd. (2010)16 NWLR (Pt. 1220) 544 and Nzekwe Vs. Anaekwenegbu (2019)8 NWLR (Pt. 1674) 235. I therefore take the liberty to formulate a sole issue for determination of this appeal.
“Whether the lower Court properly evaluated the totality of the evidence placed before it.”

However, it is incumbent to consider the preliminary objection raised by the respondent before going into the main appeal.

PRELIMINARY OBJECTION
The preliminary objection challenges the competence of ground six (6) of the Notice of Appeal and Issue four (4) distilled therefrom.

The grounds of the objection are:
1. The appellant’s ground 6 of the notice of appeal fall short of a competent ground of appeal as prescribed in the Rules of the Honourable Court that every ground of appeal must contain particulars of error except omnibus ground.
2. The appellant failed to expressly provide the particulars of error in ground 6 of the notice of appeal despite the semblance of omnibus ground

in ground 1.
3. The appellant’s ground 6 with two sub-paragraphs (1) and (11) without a particulars of error or semblance of omnibus ground is an incompetent ground of notice of appeal on ground of want of particulars of error in the ground 6.
4. The Issue 4 of his brief of argument argued from the incompetent ground rendered the Issue 4 incompetent and capable of being struck out.

Learned counsel for the respondent formulated an issue for determination of the preliminary objection thus:
“Whether the ground six (6) without a semblance of omnibus ground and particulars of error is a competent ground of Appeal.”

It is the submission of counsel that failure to comply with the mandatory requirement of Order 7 Rule 2(2) of the Court of Appeal Rules rendered ground 6 of the appellant’s notice of appeal incompetent. That the competence of a ground of notice of appeal is so fundamental because it is the foundation upon which the jurisdiction of the Court is derived. That no valid issue argued on appeal can stand without the subsistence of a valid ground of appeal. Relying on the case of

Omotadowa Vs. PDP (2016) 15 NWLR (Pt. 136) 518 at 520 R. 2 & 3, it is submitted that the essence of a particular of error is that the particulars of error or misdirection and the ground go together to ensure that the ground of appeal is sufficiently set out.

Counsel submitted that where a statute laid procedure for the doing of a thing in a particular manner, that procedure or method must be complied with. He referred to Wudil Vs. Aliyu (2004) All FWLR (Pt. 236) 267 at 280 para F and urge the Court to strike out ground 6 of the notice of appeal.

Learned counsel for the appellant in response to the preliminary objection submitted that the objection is baseless. That for a ground of appeal to be incompetent and liable to be struck out, the substance of the ground is to be considered. He relied on Aderounmu Vs. Olowu (2000) 4 NWLR (Pt. 652) 252 to submit that the test to be applied before a ground of appeal is adjudged incompetent, there must be (i) lack of preciseness; (ii) lack of specificity and (iii) Ambiguity of what it complains about. That ground 6 of the notice of appeal is in conformity with the requirement of the law having

passed the competency test.

Counsel submitted that it is the omission of the word “PARTICULARS” in between paragraph i and ii which would have distinguished between the main ground and the particulars, that the respondent’s counsel technically alleged that ground 6 of the notice of appeal does not have particulars. Submitting further, that the modern approach to adjudication of matters is to avoid technicality for substantial justice. That Issue 4 not tied to ground 6 alone but grounds 1 and 6, ground 1 of notice of appeal can still sustain the argument canvassed in Issue 4. We are urged to so hold.

The respondent’s learned counsel raised preliminary objection to the competence of ground 6 of Issue 4, being ground 6 of the notice of appeal having no particulars. It is indisputable that his objection is not against all the grounds of appeal contained in the notice of appeal of the appellant capable of completely debilitating and destroying the whole appeal. In Daudu Vs. F. R. N. (2018) 10 NWLR (Pt. 1626) 169, Aka’ahs JSC, struck out the preliminary objection therein because it was not the

appropriate mode to complain about some of the grounds of appeal. Rhodes-Vivour JSC in Adejumo Vs. Olawaiye (2014) 12 NWLR (Pt. 1421) 252 at 279 held that:
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal … where a preliminary objection would not be appropriate process to object or show to the Court defects in process before it, a motion on notice filed complaining of a few grounds or defects would suffice.”
In the instant case there are six grounds of appeal. Even if the preliminary objection is upheld, there are other grounds to sustain the appeal. This therefore must be the unfortunate fate of the preliminary objection raised by the respondent against the competence of ground 6 of Issue 4. The preliminary objection is therefore discountenanced. Moreso the objection is based on a technical ground on the omission to state PARTICULARS from the sub-paragraphs 1 and 11 of the ground of appeal which is only a slip. Courts are only concerned with substantial justice as

against technicality. See also N. C. C. Vs. Motophone Ltd. (2019) 4 NWLR (Pt. 1691) 1 at 15 and Daniel Vs. INEC (2015) 9 NWLR (Pt. 1463) 113.

MAIN APPEAL
ISSUE ONE
“Whether from the totality of the evidence before the lower Court, the appellant has successfully proved his claims against the respondent.”
Arguing on this issue, learned counsel for the appellant referred to Exhibits G, H, I and J to submit that the Exhibits were inadmissible and ought to have been expunged by the trial Court in its judgment. That Exhibit “G” is a document in Hausa language purported to be a sale agreement without the signature of the plaintiff (appellant); Exhibit “H”, a document from Darazo District Head Office to the Chairman Future Telecom. Nig. Ltd. with no relationship with the plaintiff/appellant; Exhibit “I” is an instrument affecting land which was not registered in contravention of Section 15 of the Land Registration Law of Bauchi State and Exhibit “J” a Certificate of Occupancy without specified period of time. Counsel argued that the decision of the trial Court with regard to

Exhibits “G, H, I and J” is speculative and the Exhibits deserve no probative value.

Submitting further, that Exhibit “I” tagged “Agreement to Assign” land cannot be construed as governing any relationship between the appellant and the respondent as held by the trial Court. The Court was referred to U. B. A. Plc. Vs. Jimmy King (Nig.) Ltd. (2008) All FWLR (Pt. 429) 596 and FBN Plc. Vs. Excel Plast. Ind. Ltd. (2003) 13 NWLR (Pt. 837) 412.

It is also submitted on behalf of the appellant, that Exhibits ‘D and E’ are correspondences between the plaintiff/appellant and Defendant/respondent, while exhibit “F” is a piece of paper signed by the plaintiff/appellant and his witnesses issued by the defendant/respondent as evidence of receipt of ₦50,000.00 (Fifty thousand naira) given to the plaintiff/appellant which turned out to be the 2nd page of exhibit “I’. The contention of the appellant’s counsel is that the above exhibits tendered by the appellant were not given consideration to attach any weight thereof which amount to a breach of fair hearing and same is

perverse. He relied on Kolawole Vs. L. A. O. (Nig.) Ltd. (2016) 13 NWLR (Pt. 1529) 274 at 281 R. 8, to submit that the trial judge did not evaluate Exhibits “A, A1, D, E and F” tendered by the plaintiff/appellant in the light of his pleading but rather used same as a defensive tool in favour of the defendant/respondent. Also referred is the case of Isyaku Vs. Master (2003) 5 NWLR (Pt. 814) 443 at 453 Rs. 11, 12, 13, and 14.

Learned counsel for the appellant argued that the plaintiff/appellant has discharged the onus placed on him in proof of his claim for trespass against the defendant/respondent, his evidence having preponderates over and above that of the defendant/respondent. That it is not in dispute, ownership of the land lies with the plaintiff/appellant before 2003 and therefore goes without saying, the appellant is in exclusive possession before the defendant/respondent’s ingress.

Counsel finally submitted that the contention is that the plaintiff/appellant allowed the defendant/respondent to mount their mast on his land for ten years lease from 2003 – 2010 to which the plaintiff/appellant was given

₦50,000.00 (Fifty thousand naira) pending formalization of the lease agreement. That by failure of this agreement, particularly at the expiration of the proposed 10 years lease, their continued stay and occupation of the land amounts to trespass. The Court was referred to Adegbite Vs. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578 and Onagoruwa Vs. Akinremi (2001) 13 NWLR (Pt. 729) 38 at 59 para E – F.

Relying on the case of Ediru Vs. F. R. S. C. (2016) 4 NWLR (Pt. 1502) 209 at 217 R. 6, it is submitted that the decision of the trial Court is perverse and we are urged to so hold as the parties are not ad idem on all the terms of agreement and there is no proof of agency relationship between the respondent and the said Future Telecommunication Ltd. He relied on FBN Vs. Excel Int. Ltd. (2003) 13 NWLR (Pt. 837) 412 at 426 R. 12.
We are urged to re-evaluate the established facts on the documentary evidence.

For his part learned counsel for the respondent submitted that the trial Court properly considered the legal status of Exhibits “G, H. I and J”, with regard to Section 15 of the Land Registration Law of Bauchi State Cap 80

before upholding their admissibility. He referred to paragraphs 4, 5 and 8 at pages 128 and 129 of the record where the exhibits were pleaded as evidence of proof of payment of the purchase of the land and possession.

With regard to the appellant’s argument for non-compliance with Section 15 of the Land Registration Law of Bauchi State, it is submitted that the Courts have laid to rest that an unregistered instrument is admissible to prove payment of purchase and interest. He relied on Ozua Vs. Suleiman (2009) 11 WRN 154 at 163 R. 2 and Ero Vs. Tinubu (2012) 49 WRN 120 at 126, to submit that the respondent pleaded and laid foundation for evidence of payment of purchase and interest as equitable interest coupled with possession.

Counsel submitted that the argument of the appellant’s counsel that exhibit “I”, an agreement to assign land rather than Deed of Assignment cannot be an agreement for sale of land for the trial Court to accord evidential weight is unfounded and irrational in fact and law because the respondent pleaded and laid foundation for tendering the secondary document and further stated

that MTN through its consultant or agent Future Telecom Nigeria Limited purchased the land. He referred to paragraphs 4, 6 and 7 of the defendant’s additional statement on oath of Dw1 at page 126 of the record.

That it is elementary, Agreement to assign land and Deed of Agreement means the same thing and what the Court is concerned with is the expressed content and tenor of a valid contract in a document.

On the appellant’s contention that Exhibits “G and J”, lack probative value, learned counsel for the respondent submitted that the contention is misconceived and the argument is not in line with the position of the law. That the appellant did not traverse or deny the tendering of Exhibits “G and I”, and did not also debunk the respondent’s pleading that Future Telecommunication Nigeria Limited is its agent. Referring to Exhibits “D and E” tendered by the appellant, it is submitted that the documents revealed that the land was sold to respondent by the appellant.

It is also the submission of the respondent’s counsel that Exhibits “G, H, I and J” are

properly pleaded and passed the admissibility tests. That the appellant’s argument that they are inadmissible does not hold water and Darma Vs. Batagarawa (supra) and FRN Vs. Mohammed (supra) relied by the appellant are misapplied to this matter because Exhibit “G” being the Hausa version, Exhibit “I” is the English version of same. That the contention of the appellant that Exhibit “I” was not signed by the respondent is untenable as it is a new issue raised for the first time on appeal and was not covered by any of the grounds of appeal. Furthermore, that Exhibit “I” is not a public document that requires certification in accordance with Section 104 of the Evidence Act, 2011.

Learned counsel argued that the learned trial judge properly considered the legal status of Exhibit “I” and the appellant who benefitted from the agreement cannot turn round to say that the agreement is unenforceable. He relied on Adesoji Vs. NBN Ltd. (1981) 1 NWLR (Pt. 96) 212 at 226 – 227 paras E – A. Referring to Exhibits “D and E” of the appellant, it is submitted

that the documents support the respondent’s pleadings and evidence on record that the respondent purchased the land in dispute.

It is his contention that the cases of U. B. A. Plc. Vs. Jimmy King (supra); N. N. P. C. Vs. A. I. C. Ltd. (supra) and FBN Plc. Vs. Excel (Supra) cited and relied upon by the appellant were wrongly applied to the instant case because civil contract of an agent entered on behalf of his principal is vicariously binding on the principal.

With regard to the submission of the appellant’s counsel that the appellant was denied fair hearing for failure of the trial Court to consider his Exhibits “A, A1, C, D, E and F”, counsel said the trial Court appraised evidence on record without breach of fair hearing to come to the conclusion that the appellant failed in proof of his claims against the respondent. That the appellant’s claim that he proved his claim for trespass by virtue of Exhibits “A, A1, C, D, E and F’ is not correct as there was no credible evidence led in accordance with Sections 131 and 134 of the Evidence Act in proof of the assertion. That the evidence of Pw1,

Pw2 and Pw3 supports the case of the respondent on the sale of the land to the respondent by the appellant. Relying on the case ofOlowofoyeku Vs. Olowofoyeku (2011) 1 NWLR (Pt. 1227) 177 at 183 R. 12 and Sanyaolu Vs. Coker (1983) 3 NSCC 119 at 129, it is submitted that evidence led on admitted facts which strengthen the opponent’s case, the Court can rely and act on it.

On the contention that the judgment of the trial Court is perverse, learned counsel for the respondent submitted that the appellant failed to prove this assertion against the trial judge. That the appellant tendered documents to wit Exhibits “D and E” which are favourable to the respondent as both documents attest to the lawful sale of the land by the appellant to the respondent, and the Certificate of Occupancy issued to the respondent by Darazo Local Government Area, Bauchi State. Counsel argued that Exhibits “A and A1” tendered by the appellant are ground rent receipt without Certificate of Occupancy, Exhibit “C” is a lease agreement between the appellant and Vixen Enterprise Ltd. in another contract while Exhibits “D, E and

F” support the respondent’s case. That the law is settled a party who put forward a document(s) in evidence to be considered cannot pick and choose which portion to consider. He referred to Ola Vs. Unilorin (2014) 15 NWLR (Pt. 1431) 433 at 456 R. 1.

Submitting further that the appellant failed to establish evidence of exclusive possession of the land in dispute as claimed. The Court was referred to Spiess Vs. Oni (2016) 14 NWLR (Pt. 1532) 236 at 247. Counsel said the appellant also misconceived the law when he argued that he established minimal proof of possession and that his averments are neither traversed nor challenged. That the law is settled, minimal proof is established where the other party failed to call evidence and the case is decided on the evidence of the plaintiff alone which is not the situation in this case as the appellant’s evidence supports the case of the respondent even before Dw1 testified and tendered Exhibits “G, H, I and J”.

He finally submitted that the judgment of a trial Court is not perverse if it is based on a proper appraisal of the evidence before it.

That the judgment of the trial Court in this case is not perverse and the respondent is a privy in estate having purchased the land in dispute through his agent. The Court was referred to the following cases, Cole Vs. Jibunoh (2016) 4 NWLR (Pt. 1503) 499 at 506 R. 5; Adegbite Vs. Ogunfaolu (1990) 4 NWLR (Pt. 146) 578; Onagoruwa Vs. Akinremi (supra); Ediru Vs. FRSC (supra) among others, to submit that the judgment of the trial Court which favoured the respondent, who established possession, valid contract of offer, acceptance, consideration, agency, the appellant having failed to prove his claims cannot say the judgment is perverse and occasioned a miscarriage of justice. That the trial Court carefully evaluated and analysed evidence on record to come to a conclusion that the appellant’s suit failed. We are urged to resolve in favour of the respondent.

The appellant’s reply brief is discountenanced because there is no new issue raised in the respondent’s brief to require the filing of a reply brief. Moreso the reply brief is an embellishment of what has been canvassed in the main brief.

The crux of this appeal

is that the trial Court did not properly evaluate the evidence placed before it to attach probative value to the documents tendered by the appellant, which judgment the appellant said is perverse and occasioned a miscarriage of justice.

The plaintiff/appellant’s claims before the lower Court was for trespass against the respondent. There is no doubt, trespass is actionable parse. A person who is able to prove exclusive possession of a piece of land can maintain an action in trespass against any person, unless such a person

can prove a better title to the land. See Ozuzu Vs. Emewu (2019) 13 NWLR (Pt. 1688) 143 at 146 and Orlu Vs. Onyeka (2018) 3 NWLR (Pt. 1607) 467.

The appellant’s counsel had argued that the appellant had discharged the onus placed on him in proof of his claim for trespass against the respondent, the ownership of the land being exclusive possession of the appellant before 2003. The appellant’s counsel also argued that the collective effect of Exhibits “A, A1, D, E and F” was that the appellant had made a clear case of possession of the land in dispute but the trial Court did not evaluate the exhibits in line with his pleadings but used same as a defensive tool in favour of the respondent. He referred to Exhibits “G, H, I and J” tendered by the respondent as inadmissible and ought to have been expunged by the trial Court.

In his evidence, the appellant who testified as Pw3 said he pleaded exhibits which he tendered as Exhibits “A and A1” ground rent receipt, the lease agreement between him and Vixen Enterprises Limited, Exhibit “C”, correspondences to one Sama’ila Idris

of MTN, Exhibits “D and E” and a piece of paper executed by the appellant, signed by others as Exhibit “F”. The appellant in his testimony said sometimes in 2003 the respondent found his land suitable to mount its mast and asked for ten years lease agreement to which he was given ₦50,000.00 pending the conclusion of the deal.

The respondent through Dw1, on the other hand testified that the transaction between them with the appellant is a sale of land which document was dated 8th November, 2003 and admitted as exhibit “I” and a Certificate of Occupancy issued in respect of the land as Exhibit “J”. It is also his evidence under cross examination that Future Telecommunication company, was the consultant/agent of the respondent through who the agreement to assign was made. The appellant under cross examination identified his signature in the Exhibit “F” which is the second copy of Exhibit “I” the agreement to assign.

PW1 testified to the effect under cross examination that everything he said about the land in dispute is what the appellant told him and he is aware that the

appellant signed a sale agreement with the respondent to which he was paid ₦50,000.00 in respect of the said sale. Still under cross examination, he said according to the appellant, the ₦50,000.00 given to the appellant was not the actual purchase price as the appellant was awaiting an officer of the respondent to come for negotiation but he never came.

PW2 under cross examination said the appellant did not sell the land in dispute to the respondent at ₦50,000.00, rather he was given ₦50,000.00 pending negotiation on the land. He maintained that the ₦50,000.00 given to the appellant was to hold pending negotiation later the respondent issued Exhibit “F” to the appellant which he signed and his witnesses also signed. Still under cross examination he said he does not know the content of the document Exhibit “F” which they signed because it is in English language.

The appellant’s case is that the agreement between him and the respondent in respect, of the land in dispute is for ten years lease to which he was paid ₦50,000.00 pending the negotiation on the purchase price of the land by the

respondent. It is his evidence that after the payment of the ₦50,000.00 the respondent mounted its mast on the land with a promise to come back for negotiation but he never came back. This forms the basis of the appellant’s claim for trespass for failure of the respondent to come back for negotiation for the deal. The overriding question is what evidence has the appellant led to prove his case? The appellant and his witnesses maintained that the ₦50,000.00 given to the appellant by the respondent was not for the purchase of the land in dispute but to hold pending the negotiation on the lease agreement for ten years. On the other hand, the respondent’s case is that the agreement between them and the appellant is in respect of a sale of land in dispute to which a payment of ₦50,000.00 was made to the appellant as the purchase price. Both parties tendered exhibits in proof of their assertion.

It is evident on record that Exhibit “F” tendered by the appellant was issued by the respondent and given to the appellant and his witnesses to sign, which they signed. Exhibit “F” is

tagged “SIGNED, SEALED AND DELIVERED by the within named ASSIGNOR”.

Exhibit “I” tendered by the respondent is headed “AGREEMENT TO ASSIGN LAND” on the face of the document, while the second page of Exhibit “I” is a copy of Exhibit “F” but there is no “AGREEMENT TO ASSIGN LAND” attached to Exhibit “F” for the appellant and his witnesses to know the basis of signing the document. Also there is nowhere in Exhibits “F” and “I” where the respondent has its signature as the one assigned the land. In other words, there is no endorsement of the assignee as the purchaser of the land. Exhibit “G” tendered by the respondent is said to be a copy of the sale agreement between the respondent and the appellant. If indeed it was a sale agreement between the appellant and the respondent, the appellant ought to have been availed a copy of Exhibit “G” but what was given to the appellant as evidence from the record is what he claimed to be a piece of paper which is Exhibit “F” and which the appellant and his witnesses

were made to sign without anything on the face of the document to reflect the transaction. In fact, there is nothing on the face of Exhibit “F” to suggest a sale agreement between the appellant and the respondent.

Learned counsel for the respondent contended that Exhibits “D” and “E” tendered by the appellant corroborate the case of the respondent. It is not correct. This is because Exhibits “D” and “E” are documents that emanated from the respondent in response to the appellant’s allegation of illegal occupation of the land in dispute, to which the respondent denied the allegation of trespass.

A careful scrutiny of the entire judgment reveals that there is nowhere the document marked Exhibits “F, G and I” tendered by the appellant and respondent respectively were critically examined or even examined at all by the trial Court, because they are the relevant documents for determining the controversy between the parties in this case. The result is that there was no justification for the finding of the trial Court. Failure to evaluate Exhibits

“F”, “G” and “I” in this case occasioned a miscarriage of justice to the appellant. This is because if the documents had been considered along with the oral evidence before the Court, the trial Court would have come to a different conclusion.

Learned counsel for the respondent canvassed heavily on Exhibit “I’ as the deed of assignment executed by the parties, which entitled the respondent to ownership of the land in dispute and exclusive possession of same.

A deed of assignment would be conclusive proof of ownership of the property if it is:
(a) Valid;
(b) Executed, stamped and registered;
(c) The vendor has the authority and capacity to make the assignment; and
(d) The assignor has what he proposes to assign.
See Umeh Brothers Co. Ltd. Vs. Oseni (2019) 12 NWLR 293 at 299. Exhibits “I” and “J” relied on by the respondent as proof of its ownership of the land in dispute did not satisfy the above requirements. In the circumstance the trial Court was wrong in its decision.

The contention of the appellant is that he allowed the

respondent to mount its mast on his land for ten years lease to which the appellant was given ₦50,000.00 pending the formalization of the lease agreement. That as the parties are not ad-idem on the agreement, the decision of the trial Court is perverse.

Court without considering a material and crucial evidence is perverse and would be set aside for occasioning a clear miscarriage of justice – Fredrick Vs. Ibekwe (2019) 17 NWLR (Pt. 1702) 467 at 474. See also Saleh Vs. State (2019) 8 NWLR (Pt. 1675) 416; Tukur Vs. UBA Plc. (2013) 4 NWLR (Pt. 1343) 90 and CPC Vs. Ombugadu (2013) 18 NWLR (Pt. 1385) 66.
In the instant case, the trial Court’s findings on Exhibits “F, G and I” as demonstrated in the judgment are perverse and liable to be set aside. This is so in that perverse findings cannot sustain a judgment on appeal. See Saleh Vs. State (supra); Jolayemi Vs. Olaoye (2004) 12 NWLR (Pt. 887) 332 and Atoyebi Vs. F. R. N. (2018) 5 NWLR (Pt. 1612) 350 at 354 – 355.

The issue is resolved in favour of the appellant. The appeal succeeds and it is allowed. The judgment of the trial Court delivered on the 25th of April, 2017 in Suit No. BA/212/2014 is hereby set aside. The suit, be remitted to the Chief Judge of Bauchi State for re-assignment to another Judge to hear and determine the matter. ₦100,000.00 costs for the appellant against the

respondent.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother TANI YUSUF HASSAN JCA and I agree with the reasoning and conclusion reached thereat that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by the consequential orders made therein including the order for cost.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A., and I am in agreement with him that the appeal has merit and should be allowed.
I also abide by all the consequential orders made by him in the lead judgment, including that as to retrial and costs.

Appearances:

…For Appellant(s)

…For Respondent(s)