BENUE STATE URBAN DEVELOPMENT BOARD & ORS v. A.T. ASUAKOR & ANOR
(2019)LCN/12961(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/J/68A/2009
RATIO
JURISDICTION: DEFINITION
Jurisdiction is the authority or power of a Court to adjudicate on a cause or matter before it or take cognizance of a matter presented before it in a formal manner for its decision. It is circumscribed by the statute creating the Court or by the requirement of a law that prescribes a condition precedent for the invocation of the jurisdiction of the Court. See Ndaeyo V Ogunnaya (1977) 1 SC 11, Aladejobi V NBA (2013) 15 NWLR (Pt. 1376) 66 and Nduul v Wayo (2018) 16 NWLR (Pt. 1646) 548, 578.
It has been held that jurisdiction is the blood that gives life to the survival of an action in a Court of law and that without jurisdiction an action will be like an animal that has been drained of its life blood, which will cease to have life. See Shitta Bey V Attorney General of the Federation (1998) 7 SCNJ 264, 274. Where a Court lacks jurisdiction, the proceedings, no matter how well conducted, are an exercise in futility and a nullity.PER JOSEPH EYO EKANEM, J.C.A.
JURISDICTION: WHEN CAN IT BE RAISED?
The issue of jurisdiction, that is, substantive jurisdiction, can be raised at any stage of a case, including the Supreme Court, with or without leave. It can be raised viva voce or formally. It can be raised by any of the parties or even by the Court suo motu provided the parties are given an opportunity to be heard. In Omomeji v Kolawole (2008) 14 NWLR (Pt. 1106) 180, 196 the Supreme Court held that,
This Court, in a number of decisions, made several pronouncements on the inevitability of allowing issues of jurisdiction to be raised for the first time even without the need for any leave since this Court is a Court of last resort. This is so, in order to allow ends of justice meet and prevent obvious miscarriage of justice?.
The same consideration applies to all Courts including this Court as the Court has a bounden duty to bring an end to any proceedings commenced in Court that has no jurisdiction, otherwise the whole proceedings will be a quixotic chase after the wind. See the recent cases of Bejehson V Otiko (2018) 14 NWLR (Pt. 1438) 138, 151 and Ikpekpe V Warri Refinery and Petrochemical Co. Ltd (2018) 17 NWLR (Pt. 1648) 280, 291. Thus the idea of a shift in the position of the Supreme Court on the point under consideration as suggested by 1st respondent?s counsel is not correct.PER JOSEPH EYO EKANEM, J.C.A.
JURISDICTION: THE COURT LOOKS AT THE CLAIMS OF THE PLAINTIFF TO DETERMINE WHETHER THERE IS JURISDICTION
To determine the issue of jurisdiction the Court is to examine the claim of the plaintiff as set out in the writ of summons and statement of claim. This must be examined in the light of the law giving jurisdiction to the Court. Where the claim falls within the jurisdiction of the Court, the Court must assume jurisdiction. Where it does not, the Court must decline jurisdiction. See PDP v Sylva (2012) 13 NWLR (Pt1316) 85 and TSK (Nig). Ltd v Otochem (Nig) Ltd (2018) 11 NWLR (Pt. 1630) 330.PER JOSEPH EYO EKANEM, J.C.A.
TRESPASS: DEFINITION AND NATURE
Trespass is unjustified interference with exclusive possession of land and it is actionable at the suit of a person in exclusive possession of the land. See Tukuru v Sabi (2013) 10 NWLR (Pt. 1363) 442 and Adetona v Zenith International Bank Plc (2011) 18 NWLR (Pt. 1279) 627.PER JOSEPH EYO EKANEM, J.C.A.
LAND LAW: WHEN IDENTITY OF LAND IS IN DISPUTE
For identity of land to be in dispute, a defendant must join issues on it in his statement of defence, which the defendant did not do. See Fatuade v Onwoamanam (1990) 2 NWLR (Pt. 132) 322, Ogun v Akinyelu (2004) 18 NWLR (Pt. 905) 302, Atanda v lliasu (2013) 6 NWLR (Pt. 1351) 529 and Otanma v Youdubagha (2006) 134 LRCN 362.PER JOSEPH EYO EKANEM, J.C.A.
COURTS: PRIMARY DUTY OF THE TRIAL COURTS
Evaluation of evidence and ascription of probative value to it are the primary functions of a trial Court. An appellate Court should not interfere with the exercise of those functions by the trial Court except there is failure by the trial Court to properly discharge those functions and there is a resultant miscarriage of justice. See Fashanu v Adekoya (1974) 1 All NLR (Pt. 1) 35 and Gundiri v Nyako (2014) 2 NWLR (Pt. 1391) 211.PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. BENUE STATE URBAN DEVELOPMENT BOARD
2. ATTORNEY GENERAL, BENUE STATE
3. TERFA AKOR Appellant(s)
AND
1. A.T ASUAKOR
2. MICHAEL ONUBE Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Benue State holden in Makurdi (the trial Court) in Suit No. MHC/268/2006 delivered on 28/1/2009. In the judgment, the trial Court (per J.S. Ikyegh, J, now JCA) found in favour of the 1st respondent and entered judgment in his favour against the 1st appellant and 2nd respondent.
The facts of the case leading to this appeal are as follows: The 1st respondent claims to be the holder of a deemed right of occupancy over a parcel of land situate behind New Unity Bank Plc, Bank Road, Makurdi (the land in dispute). He had round huts on the land in dispute and replaced some of them with a block building of four rooms. The 2nd respondent according to him, trespassed on the land and subsequently men of the 1st appellant visited the land and, after measuring it, concluded that the block building or part of it fell into the access road earmarked for the community. The 1st appellant served the 1st respondent an abatement/demolition notice. Four months later, the 1st appellant, by a team headed by 3rd appellant, demolished the block building.
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Consequently, the 1st respondent took out a writ of summons at the trial Court against the appellants and 2nd respondent, accompanied by a statement of claim, which was amended by Order of Court, claiming the following reliefs:
(a) A declaration that the demolition of plaintiff?s compound of plot BN 10263 by the 1st, 2nd and 3rd Defendant on 15/6/2006 was wrongful and malicious.
(b) A declaration that the plaintiff is entitled to compensation both for the 5ft portion of the property allegedly earmarked for the public use of an access road and for the value of the entire destruction carried out on the property.
(c) An order for payment of N791, 500 as value of the building structures on the plaintiffs plot.
(d) The sum of N1,000,000.00 as General damages for disturbance of the plaintiff arising from the 1st and 2nd defendants conduct.
The appellants and 2nd respondent filed a joint statement of defence (amended) denying the claim of the 1st respondent.
After trial and taking addresses, the trial Court, as earlier stated, entered judgment in favour of the 1st respondent.
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Aggrieved by the decision, the appellant filed a notice of appeal and additional grounds of appeal within time.
At the hearing of the appeal on 6/3/2019, E. Enyikwola, Esq. (Assistant Director ? Citizens Right, Ministry of Justice, Benue State) for appellants adopted and relied on appellants? amended brief of argument filed on 22/1/2018 but deemed filed on 6/3/2019 in urging the Court to allow the appeal.
Iveren Billo, Esq. for the 1st respondent adopted and relied on 1st respondent?s brief of argument filed on 19/4/2018 but deemed filed on 6/3/2019 in urging the Court to dismiss the appeal.
E.N. Tionsha, Esq. for 2nd respondent informed the Court that the 2nd respondent did not file a brief of argument. She therefore had nothing to urge.
I must pause here to state that an appeal is the complaints of appellant against the judgment of a lower Court with which he is aggrieved. ? Lagga V Sarhuna (2008) LPELR ? 1740 (SC) 54.
Section 243 (1)(a) of the Constitution of Nigeria, 1999 (as amended) provides that,
Any right of appeal to the Court of Appeal from the decisions of the Federal High Court,
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or a High Court conferred by this Constitution shall be
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court, or High Court or the Court of Appeal at the instance of any other person having an interest in the matter
Therefore a right of appeal to the Court of Appeal can only be exercised by a party to a proceeding or, with the leave of Court, a person interested. In both categories, the person who can exercise a right of appeal must be a person aggrieved by the decision of the lower Court or trial Court. Although Section 243 (1)(a) of the Constitution of Nigeria, 1999 (as amended) provides that a right of appeal to the Court of Appeal shall be exercisable in the case of civil proceedings at the instance of a party thereto, yet the provision can only be invoked or engaged by a party to the proceedings against whom a decision is made affecting his legal right. A party who has been exonerated by the decision can not appeal against it as he is not aggrieved by it.
In Mobil Producing (Nig) Ltd V Monokpo (2003) LPELR 1886 (SC) 24 ? 25 Uwaifo, JSC, stated that,
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?It is trite that the judgment of the trial Court which was affirmed by the Court below was given against only the second defendant. In effect, the first defendant is not an aggrieved party that can appeal against the judgment of the Court below to this Court simply on the basis that it was a party to the proceedings in which judgment was given in reliance on the provision of Section 233(5) of the 1999 Constitution which says that ?Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto?. That provision must be understood to apply to an aggrieved person or party. A party to proceedings can not appeal a decision arrived thereat which does not wrongfully deprive him of an entitlement or something which he had right to demand. Unless there is such a grievance, he can not appeal against a judgment which has not affected him since the whole exercise may turn out to be academic. Under no circumstances can it be argued that a party to proceedings who has not be affected by
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a decision may nevertheless appeal against it merely as a party?.
In the instant appeal, the 2nd and 3rd appellants were the 4th and 3rd defendants, respectively, at the trial Court. The trial Court found the 1st appellant liable for wrongful demolition of the building of the 1st respondent and awarded N500,000 as general damages against it in favour of the 1st respondent. As regards the 2nd and 3rd appellants (i.e, the 4th and 3rd defendant respectively, at the trial Court) the trial Court held as follows:
?The 2nd ? 4th defendants have tangential link with the said demolition exercise, so I dismiss the case in respect of the demolition exercise in their favour, and in so doing I reckon that 3rd defendant acted for a disclosed principal, the 1st defendant, whose liability discharged him from liability in this suit, while the 4th defendant is a nominal party.?
The trial Court therefore dismissed the case of the 1st respondent in favour of the 2nd and 3rd appellants. They can not be said to be aggrieved by the decision that was in their favour. That being so, they are not entitled to appeal, whether as of right or with leave, against the
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decision that was in their favour. The result is that their appeal is incompetent. Consequently, I hereby strike their names out of the appeal as appellants. The 1st appellant remains in the appeal as the only appellant.
In the appellant?s amended brief of argument, the following issues are formulated for the determination of the appeal:
?3.1 Whether the High Court of Benue State presided over by Hon. Justice J.S. Ikyegh had jurisdiction to entertain the suit which was substantially/primarily a complaint of compensation. Ground 2 of the Notice of Appeal.
3.2 Whether the lower Court was right when it held in its judgment that the demolition of the 1st respondent?s structure was illegal. Grounds 4 & 6 of the Notice of Appeal and Grounds 1 & 2 of the additional ground of Appeal.
3.3 Whether the lower Court was right in awarding N500,000.00 damages as trespass against the 1st appellant. Grounds 3 and 5 of the Notice of Appeal.
3.4 Whether the judgment of the lower Court can be supported having regard to the weight of the evidence before the lower Court. Ground 1 of the Notice of Appeal?.
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1st respondent?s counsel, in her brief of argument, adopted the four issues formulated by appellant?s counsel.
Issue 3.2 as formulated attracts a closer scrutiny from me. The issue is stated to be distilled from grounds 4 and 6 of the notice of appeal, and grounds 1 and 2 of the additional grounds of appeal. In other words, it is a compounding of those grounds of appeal that has given birth to the issue. Additional grounds in the supplementary record of appeal in this appeal are the additional grounds of appeal in the appeal filed by 2nd respondent in this appeal (CA/J/68/2009) and has nothing to do with this appeal. Additional ground 2 suffers the same fate. The two extraneous additional grounds can not competently be used either by themselves or in combination with grounds in the original notice of appeal to formulate an issue in this appeal. What is the effect of this error? It is the law that an issue for determination of an appeal can not be distilled from both competent and incompetent grounds of appeal. Such an issue is incompetent and is liable to be struck out. See Asogwa V PDP (2013) 7 NWLR (Pt. 1353) 207, 274 ? 275 and
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Akeredolu V Mimiko (2014) NWLR (Pt. 1388) 402, 435. The reasons for that drastic position are:
(i) the incompetent grounds act as a vitiating factor or a fatal virus against the issue; and
(ii) it is not the business of the Court to conduct a surgical operation to excise arguments on the issue touching on the incompetent grounds from the arguments touching on the competent grounds. The Court is not trained and engaged for such surgical procedure. See Barbus & Co. (Nig) Ltd V Okafor ? Udeji (2018) 11 NWLR (Pt. 1630) 298, 307 and Akeredolu V Minimko supra. 435.
Applying the above to the point under consideration, using grounds in an extraneous appeal in combination with valid grounds in the relevant notice of appeal to formulate an issue vitiates the issue. The Court will not undertake the exercise of excising arguments touching on the extraneous grounds from the competent grounds in the issue. The issue must be struck out as an incompetent issue. I accordingly strike out issue 3.2 for being incompetent.
We are therefore left with issues 3.1, 3.3 and 3.4 to consider in determining the appeal and I shall be guided by them in
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the determination of the appeal but with slight modifications in the couching of the issues for brevity and grammatical fidelity.
ISSUE 3.1 ? Whether or not the trial Court had jurisdiction to entertain the suit.
Appellant?s counsel straightaway gave a negative answer to the issue. He submitted that jurisdiction of the Court may be challenged at any stage of the proceedings even up to the Supreme Court. He contended that the substance of the 1st respondent?s claim is failure (of the appellant) to prescribe and pay any compensation to him for the demolition by appellant. He argued that reliefs 18(b) and (c) are the principal reliefs. The proper body (to approach), he stated, is the Land Use and Allocation Committee of Benue State pursuant to Sections 30, 2(2)(c) and (3) of the Land Use Act.
1st respondent?s counsel argued that the case of 1st respondent is proprietary, tortuous and constitutional; thus falling within the ambit of the trial Court as conferred by Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He submitted that nothing in Sections 2 (2)(C) and (3) of the Land Use Act or any other
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provision of the said Act has the effect of limiting the wide jurisdiction of the State High Court. It was her further submission that Sections 29 and 30 of the Act operate in favour of the 1st respondent.
Counsel noted that the issue of jurisdiction is a fresh issue and that the Supreme Court has in a long chain of cases shifted position on whether it can be raised at any time or even on appeal without leave of Court as has been done in this instance. She called in aid Jov v Dom (1999) 9 NWLR (Pt. 620) 538 and Tiza V Begha (2005) 5 NWLR (Pt. 917) 184.
RESOLUTION
Jurisdiction is the authority or power of a Court to adjudicate on a cause or matter before it or take cognizance of a matter presented before it in a formal manner for its decision. It is circumscribed by the statute creating the Court or by the requirement of a law that prescribes a condition precedent for the invocation of the jurisdiction of the Court. See Ndaeyo V Ogunnaya (1977) 1 SC 11, Aladejobi V NBA (2013) 15 NWLR (Pt. 1376) 66 and Nduul v Wayo (2018) 16 NWLR (Pt. 1646) 548, 578.
?It has been held that jurisdiction is the blood that gives life to the survival of an action
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in a Court of law and that without jurisdiction an action will be like an animal that has been drained of its life blood, which will cease to have life. See Shitta ? Bey V Attorney ? General of the Federation (1998) 7 SCNJ 264, 274. Where a Court lacks jurisdiction, the proceedings, no matter how well conducted, are an exercise in futility and a nullity.
The issue of jurisdiction, that is, substantive jurisdiction, can be raised at any stage of a case, including the Supreme Court, with or without leave. It can be raised viva voce or formally. It can be raised by any of the parties or even by the Court suo motu provided the parties are given an opportunity to be heard. In Omomeji v Kolawole (2008) 14 NWLR (Pt. 1106) 180, 196 the Supreme Court held that,
This Court, in a number of decisions, made several pronouncements on the inevitability of allowing issues of jurisdiction to be raised for the first time even without the need for any leave since this Court is a Court of last resort. This is so, in order to allow ends of justice meet and prevent obvious miscarriage of justice?.
The same consideration applies to all Courts
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including this Court as the Court has a bounden duty to bring an end to any proceedings commenced in Court that has no jurisdiction, otherwise the whole proceedings will be a quixotic chase after the wind. See the recent cases of Bejehson V Otiko (2018) 14 NWLR (Pt. 1438) 138, 151 and Ikpekpe V Warri Refinery and Petrochemical Co. Ltd (2018) 17 NWLR (Pt. 1648) 280, 291. Thus the idea of a shift in the position of the Supreme Court on the point under consideration as suggested by 1st respondent?s counsel is not correct.
It seems to me that counsel for 1st respondent, in her submission, blurred the distinction between substantive jurisdiction and procedural jurisdiction. The former, which is one arising in the form of a constitutional limitation or other limitations imposed by a specific law, can be raised at any stage of litigation, with or without leave of Court. The latter, id est, procedural jurisdiction must be raised timeously. An example is non?service of pre?action notice. See Ndayako v Dantoro (2004) 13 NWLR (Pt. 889) 187, 210 and Mobil Producing (Nig) Unlimited v LASEPA (2002) 18 NWLR (Pt. 798) 1, 36. What has arisen in this
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appeal is an issue of substantive jurisdiction which can be raised at any stage of the case with or without leave of Court.
The case of Jov. v. Dom supra. cited by 1st respondent?s counsel does not support the position taken by her. What the Supreme Court laid emphasis on in that case was the necessity of hearing the other side on the issue. The Supreme Court even went ahead to find that there was no merit in the issue and held that the trial Court had jurisdiction.
As regards Tiza v Begha supra., (also reported in (2005) LPELR ? the decision of the Supreme Court as contained in the lead judgment of Musdapher, JSC (as he then was) was that the Court of Appeal has no jurisdiction over the appeal as it did not raise any question of customary law and the National Assembly did not make any law extending the jurisdiction of the Court of Appeal. His Lordship at page 19 of the electronic report held that,
?I do not think it is necessary for me to consider and deal with any other issue or points raised in the appeal.? Uwais, JSC, Onu, JSC, Katsina Alu, JSC and Kalgo, JSC agreed with the lead judgment.
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Therefore the comment by Kalgo, JSC, relied upon by 1st respondent was an obiter dictum. In any event, the weight of judicial authority leans insurmountably against the position taken by 1st respondent?s counsel.
I find therefore that the issue of the jurisdiction of the trial Court has been properly raised.
To determine the issue of jurisdiction the Court is to examine the claim of the plaintiff as set out in the writ of summons and statement of claim. This must be examined in the light of the law giving jurisdiction to the Court. Where the claim falls within the jurisdiction of the Court, the Court must assume jurisdiction. Where it does not, the Court must decline jurisdiction. See PDP v Sylva (2012) 13 NWLR (Pt1316) 85 and TSK (Nig). Ltd v Otochem (Nig) Ltd (2018) 11 NWLR (Pt. 1630) 330.
The case of the 1st respondent at the trial Court was that he is the owner of a deemed right of occupancy over the land in dispute and the buildings thereon; that the 2nd respondent trespassed on the land; that the appellant wrongfully demolished his buildings on the ground that a part of it fell into an access road; that no compensation was paid to him.
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The case of the 1st respondent was basically on trespass and wrongful demolition of his building without payment of compensation. The case therefore falls squarely within the wide jurisdiction of the State High Court donated by Section 272 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) which reads:
Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.
The case has nothing to do with Sections 2 (2) (c) and 30 of the Land Use Act, 1978.
Section 2 (2) (c) of the said Act provides:
There shall be established in each state a body to be known as ?the Land Use and Allocation Committee which shall have responsibility for
(c) determining the disputes as to the amount of
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compensation payable under this Act for improvement on Land.
Section 30 of the same Act states
Where there arises any dispute as the amount of compensation calculated in accordance with the provisions of Section 29, such dispute shall be referred to the appropriate Land Use and Allocation Committee.? (Underlinings above are mine for emphasis).
For an understanding of the purport of Section 30, it is necessary to set out the provisions of Sections 28(1) and 29(1) of the same Act. They read:
Section 28(1)
It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
Section 29 (1)
If a right of occupancy is revoked for the cause set out in paragraph (b) of sub section (2) of Section 28 or in sub section (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
The purport of Section 30 of the Act is that where there is any dispute as to the amount of compensation that a holder or occupier, whose right of occupancy is
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revoked under the provisions set out in Section 29 (1) supra. is entitled to; the dispute as to the amount payable shall be referred to the appropriate Land Use and Allocation Committee. This is also the thrust of Section 2 (2) (c) of the same Act.
Certainly the claim of the 1st respondent is not that his deemed right of occupancy has been revoked and that there is a dispute as to the amount of compensation he is entitled to for unexhausted improvement. It is rather for compensation, that is to say, damages for the demolition of his building.
This effort of appellant?s counsel to drag the provision of Sections 2 (2) (c) and 30 of the Land Use Act into this appeal is in vain. He has no reward for it.
I therefore resolve issue 1 against the appellant.
ISSUE 3.3
Whether or not the trial Court was right in awarding N500,000.00 damages as trespass against the 1st appellant.
Appellant?s counsel submitted that the word ?owner? as contemplated by Section 2 of the Urban Development Law means a legal occupant who is not in breach of Section 9(5) of the law. He maintained that there was no evidence from
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the 1st respondent that he obtained an approved building plan from the appellant before putting up his structure. He added that Exhibit N showed that the 1st respondent does not own the land. It was his position that the 1st respondent did not prove better tittle to the land and so he cannot maintain an action for trespass. Rather, he stated, the appellant proved its interest and acquisition of the land, followed by survey and marking it as an access road. Citing Rockonoh v NITEL (2001) 7 MJSC 21, he contended that the trial Court was wrong in awarding N500,000.00 damages
1st respondents counsel disagreed with appellant?s counsel?s view of ?owner? under the Urban Development Law. She submitted that it means a person in occupation or who is entitled to possession. She contended that appellant?s contention as to better title is irrelevant as there was no prayer for declaration of title in this case. She submitted that once a party suffers injury even if he cannot prove the money?s worth, the Court can still award general damages.
RESOLUTION
At page 124 of the record of appeal the trial Court held as follows:
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The unchallenged evidence before me which I hereby accept settle that the structures demolished in the plot of land belonged to the plaintiff as he was in actual possession of the plot of land containing them at the material time; accordingly I hold that the plaintiff comes under the loose meaning of ?owner? stated in Section 2 of the Urban Development Board Law
It was submitted by appellant?s counsel that ?owner? contemplated in the law must be a legal occupier who is not in breach of Section 9(5) of the Urban Development Board Law which, in defining ?illegal structure?, provides: ?Any structure erected or developed without prior permission of the Local Government or the State Ministry of Lands and Survey (as the case may be) or without an approval plan by the Board.? I do not agree with appellant?s counsel. The definition of ?owner? in Section 2 of the Law is wider than suggested by appellant?s counsel. Section 2 states: ?Owner? includes joint owner, lessee, tenant for life and any other person in actual
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possession of premises of any tenure or description or the agent or attorney of such person or any of them and any other person who has an interest in or draws the rent.?
The Section does not talk of ?legal occupier?, or ?owner? only. It contemplates a ?person in actual possession of premises of any tenure or description.? To agree with appellant?s counsel will amount to reading out of the law words which are therein stated. That would amount to jus dare and not jus dicere ? a form of judicial legislation, a judicial amendment of the law. The words in Section 2 of the law are plain enough and should be given their ordinary meaning, thus giving effect to the clear words. Mobil v FBIR (1977) 3 SC 53 and Ojokolobo v Alamu (1987) 3 NWLR (Pt.61) 377.
The person protected by the law need not be a person who has prior permission or approved plan by the Board. Such a person may not have prior permission or approved plan, but an illegal structure can only be demolished following strict compliance with the law and not otherwise. See Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712
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and Are v Lagos City Council (1965) LLR 205 referred to and quoted in the judgment of the trial Court. The contention that the 1st respondent is not the owner of the land and that he did not have an approved plan is of no moment. The appellant ought to have complied with the law before demolishing what it considered as an illegal structure. The trial Court found that it did not so comply. There is no surviving ground of appeal challenging that finding and it therefore stands for all purpose.
It was contended by appellant?s counsel that the 1st respondent did not prove better title to the land and so he could not maintain an action in trespass and that rather the appellant proved its interest in and acquisition of the land. Appellants counsel, with due respect, missed the point. The case of the 1st respondent is that of trespass by wrongful or illegal demolition of building contrary to the law. Trespass is unjustified interference with exclusive possession of land and it is actionable at the suit of a person in exclusive possession of the land. See Tukuru v Sabi (2013) 10 NWLR (Pt. 1363) 442 and Adetona v Zenith International Bank Plc (2011) 18 NWLR (Pt. 1279) 627.
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The issue of title to the land did not arise and in any event the appellant did not show how and when it acquired the land. Having shown exclusive possession, the 1st respondent was entitled to maintain the action in trespass.
The contention about the specific identity of the land is a storm in a tea cup. In the first place, it does not belong to the issue under consideration. In the second place, the parties did not join issues as to the identity of the land in the pleadings. The appellant did not contest the location, identity and dimension of the land. For identity of land to be in dispute, a defendant must join issues on it in his statement of defence, which the defendant did not do. See Fatuade v Onwoamanam (1990) 2 NWLR (Pt. 132) 322, Ogun v Akinyelu (2004) 18 NWLR (Pt. 905) 302, Atanda v lliasu (2013) 6 NWLR (Pt. 1351) 529 and Otanma v Youdubagha (2006) 134 LRCN 362.
Appellant?s counsel made reference to Rockonoh Property Co. Ltd v NITEL (2001) LPELR ? 2951 (SC) to the effect that a person whose property is demolished should claim for loss or reasonable re ? instatement of the building and not general damages.
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With all due respect, appellant?s counsel quoted the Court out of con. In that case, appellant claimed general damages of N32, 752, 506 for trespass (for demolition of a building allegedly owned by him) and did not even claim for injunction. The claim for damages was based on a valuation report which stated the basis of the claim, setting out specific items of the building and their value etc. The Supreme Court held that the actual nature of the claim was not for general damages for trespass but for the value of the property demolished. This is because the claim was based on the valuation report that set out calculations made and figures arrived at from some specific items. See Pp. 14 and 36 of the electronic report supra.
That is not the situation in this instance in which the 1st respondent claimed for N1,000,000 as general damages which made the damages to be at large.
I therefore resolve issue 3 against the appellant.
ISSUE 3.4
Whether or not the judgment of the trial Court can be supported having regard to the weight of evidence before the lower Court.
Appellants counsel submitted that Exhibit N shows that
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1st appellant had a better title to the land the building on which was earmarked for demolition. Again, he submitted that the identity of the land was not proved. He added that there was no evidence that the 1st respondent complained after being served with the abatement notice.
1st respondent?s counsel urged this Court to enter an affirmative answer to the issue as the judgment was based on a consideration of the evidence before that Court.
RESOLUTION
The points raised under this issue have already been dealt with in my resolution of issue 3. Such points include proof of better title, identity of the land and the legality of the demolition. I do not want to go over them again. I only adopt my answers to them.
Evaluation of evidence and ascription of probative value to it are the primary functions of a trial Court. An appellate Court should not interfere with the exercise of those functions by the trial Court except there is failure by the trial Court to properly discharge those functions and there is a resultant miscarriage of justice. See Fashanu v Adekoya (1974) 1 All NLR (Pt. 1) 35 and Gundiri v Nyako (2014) 2 NWLR (Pt. 1391) 211.
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There is enough evidence on record to support the trial Court’s findings in this matter. I see no reason to interfere.
I therefore resolve issue 4 against the appellant.
On the whole, the appeal is devoid of merit. I accordingly dismiss it and affirm the judgment of the trial Court.
I assess the costs of this appeal at N100,000.00 against the appellant in favour of the respondent.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to have a preview, in draft, of the lead Judgment of my learned brother, Joseph Eyo Ekanem, J.C.A.
In his distinctive fashion, his lordship has methodically and meticulously examined and addressed all issues which are germane for consideration in this Appeal.
I agree with the reasoning and conclusions reached in the Judgment, and anything else I add would amount to nothing but repetition, replication and tautology
Suffice it to say that I also find no merit in the appeal. It fails and is dismissed. I abide by the orders made in the lead Judgment, inclusive of the Order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading
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before now the draft copy of the Judgment just delivered by my Learned Brother, Joseph Eyo Ekanem, JCA, dismissing this appeal. I agree completely with the reasoning and conclusions of my Learned Brother. The appeal is without merit. I also dismiss the appeal and affirm the judgment of the lower Court. I abide by the orders made, including the order as to costs.
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Appearances:
E. Enyikwole, Esq. (AD-Ministry of Justice, Benue State)For Appellant(s)
Iveren Billo, Esq. for 1st respondent.
E. N. Tionsha, Esq. for 2nd respondentFor Respondent(s)
Appearances
E. Enyikwole, Esq. (AD-Ministry of Justice, Benue State)For Appellant
AND
Iveren Billo, Esq. for 1st respondent.
E. N. Tionsha, Esq. for 2nd respondentFor Respondent
