C.G.G. NIGERIA LIMITED v. BERNARD TOWESHI & ORS
(2019)LCN/13075(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/B/328/2005
RATIO
HE WHO ASSERTS MUST PROVE
It is trite that the burden of proof rests on the party, whether Plaintiff or defendant, who asserts the claim. See AKANDE V. ADISA (2012) 15 NWLR Pt. 1324 page 538. See also OGBUANYINYA V. OKUDO (No.2 ) (1990) 4 NWLR Pt. 146 page 551.PER PHILOMENA MBUA EKPE, J.C.A.
TRESPASS: DEFINITION
It is however imperative to set the tone by considering what trespass is. InOYEWUSI V. OLAGBAMI (Supra) it was held that Trespass to land is a wrongful entry into the land in actual or constructive possession of another.PER PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: WHEN THE EVALUATION OF EVIDENCE BY A PARTICULAR JUDGE IS CHALLENGED
In MILITARY GOV., OF LAGOS STATE V. ADEYIGA (2012) ALL FWLR (Pt. 616) 396 @ 424 paragraphs A-C, the Supreme Court held inter alia when the evaluation of evidence by a particular Judge is challenged, the principles that are examined are: (a) whether the evidence is admissible (b) Whether the evidence is relevant (c) whether the evidence is credible (d) whether the evidence is conclusive (e) whether the evidence is probable than that given by the other party.PER PHILOMENA MBUA EKPE, J.C.A.
PLEADINGS: FACTS AVERRED IN PLEADINGS MUST BE SUBSTANTIATED AND PROVED IN EVIDENCE
It is worthy of note that facts averred in pleadings must be substantiated and proved by evidence. This is because pleadings have no mouth to speak in Court and so, they speak through witness. If witnesses do not narrate them in Court, they remain moribund and dead at all times. See OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (Pt.1489) pg 596.PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
C.G.G. (NIG.) LTD – Appellant(s)
AND
1. BERNARD TOWESHI
-1ST RESPONDENT
2. AYENOR OBERIRHI ADJOBAYERU
3. JAMES OGONIGA AKPOVETA
(For themselves and on behalf of Adjobayeru and Akpoceta families Of Ogirisen)
-2ND SET OF RESPONDENTS – Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Delta State sitting in Sapele, delivered on the 14th day of October 2004 in Suit No. S/109/95, wherein the trial Court granted the 1st Respondents claim for damages for trespass and an Order of Perpetual injunction against the Appellant.
The facts of this appeal can be summarized as follows:
By a writ of Summons dated 25th July 1997, the Plaintiff/1st Respondent sued the Defendants/Appellant claiming the following reliefs:
(a) The sum of N5,000,000.00 (Five Million Naira) being special and general damages for the defendants gross acts of trespass unto the plaintiffs lands situate and being at Ogirisen Elume within the jurisdiction of this Hon. Court therein damaged plaintiffs 1st land and destroyed plaintiffs cash and economic crops on the 2nd land and thereby rendering absolutely useless, plaintiffs farm lands aforesaid, particulars of which shall be stated in plaintiffs statement of claim.
(b) An order of perpetual injunction restraining the
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defendants by themselves, servants, agents and/or labourers from trespassing or further trespassing upon the said lands.
(c) Any other legal or equitable relief that this Honourable Court may deem fit to grant to the plaintiff in the circumstances.
The storyline of the Claimant/1st Respondent is that the 1st Defendant/Appellant trespassed on his parcel of land without his consent and authority first had and obtained. The contention of the 1st Defendant/Appellant however is that the trial Judge acted in error by awarding damages for Trespass and that the judgment was against the weight of evidence led by the Plaintiff/1st Respondent. The Plaintiff filed his statement of claim on the 25th July 1997. The 1st Defendant/Appellant also filed his Amended statement of Defence on the 24th day of September 2001, the Plaintiff/1st Respondent opened his case and testified that he knows the land in dispute and the owner of the land. He stated he knows the 1st Defendant/Appellant and also the 2nd and 3rd Defendants/2nd and 3rd Respondents/Cross Appellants who were later joined in this suit by the 1st Defendant/Appellant. He further stated that sometime in 1975, Mr. Palmer
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Jenigi sold part of his land to him which was evidenced in a written document. Plaintiff/1st Respondent called 3 witnesses in proof of his case including the surveyor and the Eldest daughter of Palmer Jemigi the Plaintiff/1st Respondents vendor (now deceased). The Plaintiff and his witnesses were cross examined by the 1st Defendant counsel.
The 1st Defendant/Appellant also gave sole evidence to the effect that his claim of title and authority for entry into the land was rested on the title of the 2nd and 3rd Defendants who he claimed to be his landlord but incidentally did not file any pleadings nor appeared in Court to give any evidence to that effect. The 1st Defendant was also Cross-examined by the Plaintiffs/1st Respondents counsel.
Exhibits were tendered and respective counsel filed final addresses.
In a considered judgment delivered on the 14th of October 2004, the learned trial Judge found as a fact that the entry of the 1st Defendant/Appellant on the Plaintiffs/1st Respondents land without his consent had and obtained amounted to a trespass on the Plaintiffs land. The trial Court
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then entered Judgment in favour of the Plaintiff, granted the reliefs sought but made order of N450,000.00 as general damages as against the N5,000,000.00 claimed by the Plaintiff for General and Special damages. Dissatisfied by the judgment of the High Court, the Appellant appealed to this Court by a Notice of Appeal filed on the 30th of November 2004 wherein they raised three (3) Grounds of Appeal.
The Appellant from the Grounds of Appeal distilled the following issues for determination.
ISSUES FOR DETERMINATION:
Whether Appellant is liable in damages to 1st Respondent for trespass; and if so, whether the damages awarded is not excessive.
The 1st Respondent on his part formulated a sole issue for determination to wit:
Whether the Learned Trial Judge was right in awarding damages in the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) against the Appellant for trespass.”
I have carefully considered both sets of issues which I presume are similar in meaning and by the way they have been couched, I have however decided that Issue One (1) as formulated by the Appellant is more appropriate in the determination of this Appeal.
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On this Issue, learned counsel to Appellant submitted that there is undisputed evidence by the Appellant to show that he did not just break into the 1st Respondents land but entered the land after duly consulting and renting same from 2nd set of Respondents. He cited the case of U.B.A. PLC V. SAMBA PET. CO. LTD (2002) 16 NWLR (Pt. 793) 361. He further submitted that the award of damages should have been against 2nd set of Respondents and not Appellant, since they were Parties in the suit. He argued that aside from leading undisputed evidence, he said 1st Respondent was aware of Appellants occupation of the land between February and July, 1995, without 1st Respondent raising eyebrow. He opined that the 1st Respondents conduct had in fact encouraged the Appellant to occupy the land.
Learned Counsel further submitted that since the 1st Respondent having received compensation for the crops which arose out of the alleged trespass that the Appellant ought not to be liable for trespass again since it will amount to double compensation. He cited the case of OTTO V. MABAMIJE (2004) 17 NWLR (Pt.903) 489 @ 504.
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He said the law frowns at double compensation in any form for the same misdeed, if indeed there was one. Learned counsel concluded his argument on this issue submitting that by conduct, the 1st Respondent had encouraged the Appellant to enter and remain on the land, and had even gone further to receive compensation on the crops.
He claimed that the 1st Respondent ought not to have been allowed by the learned trial Judge to maintain this action, and that the Appellant ought not to be liable to 1st Respondent for trespass.
In reply, learned counsel to the Respondent relying on FAMUROTI V. AGBEKE (1991) 5 NWLR (Pt.189), pg 1 submitted that the learned trial Judge was right in awarding damages for trespass against the Appellant. He submitted that the 2nd sets of Respondents cannot grant the Appellant a better title to the land in issue than they possessed in consonance with the maxim Nemo dat quod non habet.
Learned Counsel stated that from the evidence elicited before the lower Court the Appellant trespassed on the 1st Respondents land. He relied on the case of AYINLA V. SIJUWOLA (1984) 1 SCNLR 410 that it is generally held
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that trespass is an invasion into the private property of another, a civil wrong against possession. Learned Counsel made reference to the case of ERO V. TINUBU (2012) 8 NWLR P.104 where he enumerated situations in which the Appellate Court will interfere with an award of damages by a trial Court. He thereby urge the Court not to interfere with the damages awarded by the Learned trial Court that the lower Court found as fact that the Appellant committed trespass to the detriment of the 1st Respondent.
Counsel argued that the contentions of the Appellant is erroneous when Appellant argued that the award of general damages was uncalled for or would have been nominal.
He further submitted that once there is proof of trespass, damages lies even where no actual damage is done to the land or any fixture thereon. He referred to the case of AMINU V. OGUNYEBI (2004) 10 NWLR (Pt.882) pg 457 Ratio 13; CHIEF SHOTAYO-ARO & ORS V. BABAYEMI & ORS (2004) AFWLR, (Pt.204), pg 61 @ 73. He alleged that trespass is not about whether damage is done to land but about entry without consent of the owner.
The learned counsel submitted further that the award of
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general damages can be made notwithstanding that special damages claimed in the suit was not strictly proved, provided that there is evidence showing that the party claiming it had actually suffered some damages. He cited the Court of Appeal case of TAYLOR V. OGHENEOVO (2012) 13 NWLR (Pt. 1316).
Furthermore on the issue of double compensation, counsel stated that the argument is misconceived as double compensation can only result if the learned trial Judge granted damages, on multiple heads of claim in a writ of summons as a result of the same incidence of trespass. He submit that the compensation paid by the Appellant to the 1st Respondent is for the 1st Respondents crops which had been destroyed by the Appellant on the land solely for the purpose of checking the land in order to determine its fitness for use and not damages resulting from the grievous destructions caused by the Appellants activities on the land which is considered as separate acts of trespass.
Learned Counsel concluded that the trial Court properly evaluated the evidence of the parties elicited during trial and was fair and reasonable in his award of damages for trespass.
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Being dissatisfied with the decision of the High Court sitting at Sapele, Delta State delivered on the 14th of October, 2004, the 2nd and 3rd sets of Respondent filed a Notice of Cross Appeal on the 25th of August, 2014 and their joint Respondents brief of argument on the 13th of May 2016, wherein they raised two (2) Grounds of Appeal and formulated the following issues for determination from their grounds of Cross Appeal.:
ISSUES FOR DETERMINATIONS:
1. Whether the trial Court has jurisdiction to award general damages against the Cross-Appellant who were not served with the writ of summons, statement of claim and other Court processes.
2. Whether the trial Court is right to have awarded general damages against the Cross-Appellants who were never involved in an act of trespass according to the Evidence adduced before the trial Court.
In reply the 1st Respondent formulated two issues for determination to wit:
ISSUE 1:
Whether the trial Court has jurisdiction to award general damages against the Cross-Appellants who failed, refused and neglected to file their statement of Defence and participate in the trial at the lower Court.
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ISSUE 2:
Whether the learned trial Judge was right in awarding damages in the sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) against the Cross-Appellants for trespass.
The Learned Counsel to the Appellant neglected to file reply to the Cross Appellants issues raised.
I have carefully considered the issues raised by both Counsels and have decided to formulate a sole issue in this regard.
Whether the trial Court was right in awarding damages against the Cross Appellants.
On this sole issue learned counsel to the Cross Appellants argued, that: it is the duty of the Court to notify litigants of hearing date which is constitutional by virtue of Section 36 of the 1999 Constitution which guarantees to every person the right to fair hearing. He submitted that there is no where in the record reflecting where the trial Court made an order that the writ of summons, statement of claim and a hearing notice was served on the Cross Appellants. He cited the case of AUTO IMPORT EXPORT V. ADEBAYO (2002) 18 NWLR P. 799, pg 554 @ 582 paragraphs A-C.
Learned Counsel contended that the Cross Appellants were
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never served with a hearing notice during the course of trial as parties to the suit even when the Court noticed that they were not represented during the trial.
He submitted that awarding general damages against the Cross Appellants for trespass who were never served with the Court processes and who were not the tortfessor and not shown by evidence that the Cross Appellants authorized the trespass, amounts to a miscarriage of justice.
In conclusion, learned counsel submitted that it is a requirement of the law that a Judge must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the Judge, but on evidence properly evaluated and the need to ensure and demonstrate that substantial Justice has been done in this case.
In response to the issue the 1st Respondent stated that the 2nd and 3rd Respondents/Cross Appellants applied to be joined as the 2nd and 3rd Defendants in the suit through their solicitor at the lower Court G.M. Dumi Esq vide a motion dated 30th October 1996. He contended that the Plaintiff at the lower Court took steps to amend all processes already filed in this suit to reflect the joinder.
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Learned counsel submitted that it is the duty and responsibility of the 2nd and 3rd Respondents/Cross Appellants to prosecute and follow up their defence at the lower Court, and argued that if they had done that, the issue of non-service of processes on the 2nd and 3rd Respondents would not have arisen. Counsel further submitted that the 2nd and 3rd Respondents are liable for non-diligent prosecution of their defence of the suit at the lower Court. He further submitted that in the Court of Appeal decision in the case of OGBUESHI JOSEPH O.C. ACHUZIA V. WILSON FIDELIS OGBOMAH (2004) AFWLR (Pt.227) 508 at 521 that parties to an action have a duty out of respect to the Court to appear on a date which, to their knowledge, their case is set down either for mention or for hearing. If for any reason, a party is unable to be present in Court, he has to notify the registry of that Court and the opposite party preferably before the date the case is fixed.”
Counsel further submitted that a party to a legal dispute cannot claim a breach of fair hearing which he has willfully absented himself from or failed to give evidence when called
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upon to do so. He referred to the case of AG RIVERS V. UDE (2006) 17 NWLR Pt. 1008, 436 @ 456. Learned counsel concluded that the trial Judge was right to have awarded damages against the 2nd and 3rd Respondents/Cross Appellants as they deliberately failed, refused and/or neglected to participate in the trial at the lower Court after applying and being lawfully joined as parties to the suit.
RESOLUTION
I have critically examined all the issues raised from the Appellants grounds of Appeal, the 1st Respondent and the Cross Appellants issues and I find that the said issues can be fused into a single issue to wit:
Whether Appellant/Cross Appellants are liable in damages to 1st Respondent for trespass.
The history of the case is that on the 24th of September 2001, the Plaintiff/1st Respondent opened his case and gave evidence to the effect that he is the owner of two parcels of land situate at Ogirisen Elume Clan, of Sapele Local Government Area, Delta State. The Plaintiff called three (3) witnesses in proof of his case whose evidence corroborated the evidence of the Plaintiff. The Plaintiff and his witnesses were cross-examined by the
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Appellant. The Appellant called a sole witness who also testified that the two parcels of land in dispute were leased to them by the 2nd and 3rd Defendant and was also cross- examined by the Plaintiff.
On issue of title to the two portions of land involved in this suit, that is, parcels of land covered by Exhibits A and B the Plaintiff pleaded in a very comprehensive manner his mode of acquisition and possession of the parcels of land.”
However the 2nd set of Respondents/cross Appellants made an application to the trial Court for Joinder which was granted and were made parties to the suit. On the other hand the cross-Appellants who sought to be joined and after being joined as parties to this suit failed to file any pleadings and neglected the proceedings till Judgment was delivered at the lower Court.
The bone of contention with regard to this issue is the ownership of the two parcels of land situate at Ogirisen, Elume clan of Sapele Local Government Council Area of Delta State. The crucial question here is: has this said parcel of land fulfilled the statutory ways of proofing ownership to land?
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See OYEWUSI V. OLAGBAMI 14 NWLR PT. 1639, 297 @ 302, see also IDUNDUN V. OKUMAGBA (1976) 1 NWLR 200.
The Appellant and the Cross Appellants however contend that the said parcel of land in dispute does not belong to the 1st Respondent. The Appellant claimed that the parcel of land was given to him on lease by the 2nd sets of Respondents/Cross Appellants, who never filed any pleadings in this suit nor appeared in the proceedings after they were joined as parties at the lower Court. The Appellant further claimed that he entered an agreement with Cross Appellants, the purported owners of the land before they moved into the land. However the Cross Appellants never adduced any evidence at the lower Court to corroborate the above claim by the Appellant. It is trite that the burden of proof rests on the party, whether Plaintiff or defendant, who asserts the claim. See AKANDE V. ADISA (2012) 15 NWLR Pt. 1324 page 538. See also OGBUANYINYA V. OKUDO (No.2 ) (1990) 4 NWLR Pt. 146 page 551. Applying this principle to the instant case, the burden of proving this affirmative assertion therefore rests on the Appellant and Cross Appellants
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On the other hand, the Plaintiff gave evidence and called three witnesses in support of his case; wherein he stated that he bought the land in dispute from one Palmer Jemigin in 1975 and relied on the Deed of transfer and the evidence of long possession and acts of ownership. P.W 1 the Oota (speaker) of Ogirisen gave evidence on how land can be acquired in Ogirisen Community and that Plaintiff had satisfied the conditions for acquiring a customary right over land in that community. PW2 (Registered Surveyor) gave evidence of the nature of both parcels of land when he visited the land and tendered survey plans.
While PW3 the Eldest daughter of Palmer Jemigin (Vendor) gave evidence of sale of the land to the Plaintiff.
It is however imperative to set the tone by considering what trespass is. In OYEWUSI V.OLAGBAMI (Supra) it was held that Trespass to land is a wrongful entry into the land in actual or constructive possession of another. Having said that, the crux of this appeal is whether or not the 1st Respondent is the owner of the two parcel of land in dispute. This issue to my mind is the bedrock upon which the whole case rests. It was in a bid to prove ownership
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which is the essential issue that the 1st Respondent called various witnesses including PW1 David Omata who incidentally is the Oota (speaker) of Ogirisen Community. To my mind there cannot be better evidence as to who is the legitimate owner of the land in dispute than that of the speaker (Oota) of the Community where the land in dispute is situate. The evidence of PW1 is cogent, credible and sufficient for the resolution of this issue. And it thus follows:
I know the Plaintiff. I live in the same village with the Plaintiff. The Plaintiff was a chairman to the Ogirisen Community. I know the 1st Defendant. There was a time the 1st Defendant stayed at Nikoro Estate in Ogirisen Village.
I dont know the 2nd and 3rd Defendants. The 1st Defendant at that time occupied another place opposite Nikoro Estate. The 1st Defendant built a mechanic workshop opposite Nikoro Estate. The Plaintiff is the owner of the land where the 1st Defendant stayed opposite Nikoro Estate. The land originally belonged to one Palmer now deceased. Palmer sold the land to the Plaintiff. There was a time Palmer brought the Plaintiff before the Community
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people and informed the community that he had sold two parcels of land to the Plaintiff.
The Community after the introduction directed the Plaintiff to bring to them a bottle of gin, N40.00 and kola nuts. The Plaintiff complied and the most senior man of the Community gave his blessings. After the sale transaction, the Plaintiff felled all the rubber trees planted by the original owner and planted plantain, cassava and pepper on the land. The 1st Defendants workshop planted on the Plaintiffs land was used as a repair depot and oil were seen littered in the premises. The plaintiff used the 2nd parcel of land for planting crops and used the portion close to the river as trough for oil milling. I am the Otota (Speaker) for Ogirisen village.
Learned counsel for Appellant has strenuously tried to challenge the credibility of the evidence of PW1, PW2 and PW3, but to my mind he was not able to show in any way why that piece of evidence should not be believed. Counsel has also endeavoured to show that the trial Judge did not evaluate evidence before him properly, but I do not subscribe to that view.
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In MILITARY GOV., OF LAGOS STATE V. ADEYIGA (2012) ALL FWLR (Pt. 616) 396 @ 424 paragraphs A-C, the Supreme Court held inter alia when the evaluation of evidence by a particular Judge is challenged, the principles that are examined are: (a) whether the evidence is admissible (b) Whether the evidence is relevant (c) whether the evidence is credible (d) whether the evidence is conclusive (e) whether the evidence is probable than that given by the other party. A careful perusal of the evidence of Plaintiff/1st Respondents witnesses shows that it satisfies the conditions enumerated above.
It is worthy of note that facts averred in pleadings must be substantiated and proved by evidence. This is because pleadings have no mouth to speak in Court and so, they speak through witness. If witnesses do not narrate them in Court, they remain moribund and dead at all times. See OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (Pt.1489) pg 596. Therefore pleadings must be proved by evidence, failure of which it goes to nothing, as pleadings do not take the place of evidence. Applying this to this instant appeal, even though Appellant pleaded that the land in dispute was given to him on lease
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by the Cross Appellants, the averment in their pleadings was not supported by evidence of the Cross Appellants who the Appellant claimed were the leasors during trial.
It is trite that for trespass to be granted, there must be proof of ownership of land since damages is a form of punishment or sanction. Throughout the entire proceedings, there was no record where the Appellant gave evidence that he is a bonafide owner of the disputed land.
Appellant on his own admitted trespassing on the 1st Respondents land without the authority of the 1st Respondent. It is worthy of note that facts admitted need no further proof.
However, going through the record of appeal and X-raying the entire proceedings at the lower Court, it is very clear to me that the Cross-Appellants were not notified of hearing dates and other Court processes which is constitutional by virtue of Section 36 of the 1999 Constitution which guarantees to every person the right to fair hearing. See NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) 11 NWLR (Pt.1630) pg 201 @ 206; FIDELITY Bank PLC V. THE M.T. TABORA (2018) 12 NWLR (Pt.1632) pg 135 @ 139.
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Where the Court held that the service of originating processes on parties who ought to be served is in indispensable in any adjudication. The Court further held that Failure to serve a process where service is required is so fundamental that the party not served and against whom any order is made in his absence is entitled to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction by the Court has not been fulfilled. See also OKEKE V. LAWAL (2018) 12 NWLR (Pt.1634) page 393 @ 395.
To begin with, there must be credible reason to justify Judgment being given against the Cross-Appellants.
It is trite that for an award of damages to be granted, it must be made against a party to a suit. Throughout the entire proceedings, there was no record where the Cross-Appellants gave evidence that they were bonafide owners of the disputed land.
The High Court sitting in Sapele therefore acted in error to have delivered Judgment and awarded cost against the Cross-Appellants.
In the circumstance, the issue canvassed by the Appellant is resolved in favour of the 1st Respondent.
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The Appeal of the Appellant in the Judgment of the Warri Division of the High Court of Delta State in Suit No. S/109/95 delivered on the 14th of October 2004 by S.A. Ehiwario J. is bereft of merit and is hereby dismissed. While the Cross-Appeal by the Cross-Appellants is hereby allowed. No order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the privilege of reading in advance the sound judgment just delivered by my learned brother P.M. EKPE, JCA.
I agree with the reasons therein advanced leading to the conclusion that the appeal is unmeritorious while the cross-appeal has merit.
Consequently, I also dismiss the said appeal while the cross-appeal is hereby allowed.
I abide by the consequential orders made in the lead judgment inclusive of that of cost.
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Appearances:
A.M. Ukwu For Appellant(s)
Henry Omu for the 1st Respondent.
F.B. Abina with him, C.J. Orivbabor for the 2nd and 3rd Respondents
For Respondent(s)
Appearances
A.M. Ukwu For Appellant
AND
Henry Omu for the 1st Respondent.
F.B. Abina with him, C.J. Orivbabor for the 2nd and 3rd Respondents For Respondent
