CHIEF GABRIEL OGUNKA & ORS v. MR. DANIEL W. OKPARA & ORS
(2019)LCN/12800(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/PH/517/2013
RATIO
COURT AND PROCEDURE: ONUS OF PROOF
“…Appellants re-stated the fact that the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case and that if the onus is not discharged, the weakness of the defendant will not help the plaintiff and the proper judgment will be for the defendant. See Section 137 of the Evidence Act, 2011; Olorunfemi vs. Asho (2002) 20 WRN. 43; Anyanwu vs. Mbara (1992) 5 NWLR Pt. 242, pg, 388; Ladotun vs. Oyewumi (2008) 35 WRN. 58; Aniekwe vs. Nweke (2013) 16 WRN. 116, 117; and Dike vs. Uhunmwangho (2011) 43 WRN. 75, 83., whereon the appellants finally urged on us to set aside the judgment of the trial Court and instead give judgment to the appellants as per their counter claim.”PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
COURT AND PROCEDURE: WHERE THE APPELLANT REPEAT THE SAME ARGUMENT IN THE APPELLATE
“It is not for the appellant to repeat the same argument before the appellate Court in the hope that it would exercise its discretion differently. [Minister, P.M.R. vs. Expo-Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261; Lauwers Import Export vs. Jozebson Ind. Co. Ltd. (1988) 3 NWLR (Pt. 83) 429 referred to.] Thus, it is at the discretion of the Court to decide the amount it should award as general damages having regard to the suffering caused the claimant or humiliation and injuries suffered. The attitude of appellate Courts towards such award was clearly spelt out by Kekere-Ekun, JSC, in British Airways vs. Atoyebi (2014) 13 NWLR Pt. 1424, pg. 253 at 287-288 as follows…”PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF GABRIEL OGUNKA
2. ELDER CHINWENDU OBUNEZI
3. CHIEF CHRISTOPHER WOSU
4. CHIEF KENNEDY AMADI
5. EMMANUEL EREH
6. AUGUSTINE WORDU
7. EMENIKE WORDU
8. OBINICHI WORDU
(For themselves and on behalf of Omuoda Aluu Community, except the Claimants) Appellant(s)
AND
1. MR. DANIEL W. OKPARA
2. MR. AZUBUIKE OKPARA
(For themselves and on behalf of John Wenendah Okpara family of Omuoda-Aluu) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal is from the decision of the High Court of Rivers State (hereinafter to be referred to as the trial/lower Court), in suit No. IHC/89/2005 presided over by Hon. Justice W. A. Chechey, J.
The concise facts leading to the appeal are that the appellants who before the lower Court are the defendants were sued by the respondents vide a writ of summons issued 1st November, 2005. The respondents sought the following reliefs in their statement of claim filed 12th April, 2006:
1) A declaration that the claimants are entitled to the Right of Occupancy in, over and in respect of the piece or parcel of land situate at and known as Izo Omuodum in Omuoda village of Aluu Community, located on both sides of the new Road (Ada George Road) linking the East/West Road to Airport Road, Omagwa, and shown verged Green in the Claimants’ Survey Plan No. ON/RV070/2006 produced by Onyekwere Njoku, a Registered Surveyor and filed in this suit.
2) A declaration that the purported sale of part of the said land by the 1st set of defendants to the 9th defendant without the consent of the claimants is illegal, unconstitutional, null and void.
3) An order setting aside the purported sale of part of the said land by the 1st set of defendants to 9th defendant and/or to any other persons.
4) The sum of N10 Million being and representing special and general damages for trespass.
5) An Order of perpetual injunction restraining all the defendants by themselves, their servants, agents and privies from further trespassing unto the said Izor Omuodum land or howsoever further interfering with the claimants? possession, management and use of the said land.
6) A declaration that the conduct of the 1st set of defendants in chasing the claimants out of Omuoda Community in June, 2004, and preventing the claimants from further residing in their homes at Omuoda village since June, 2004 is illegal, unconstitutional, null and void.
7) The sum of N10 Million being and representing special and general damages occasioned to the claimants by the 1st set of defendants’ conduct in chasing the claimants out of Omuoda Community since June, 2004.
8) An order restraining the 1st set of defendants whether by themselves and/or through their servants, agents and privies from howsoever further refusing the claimants’ entry into and residence in Omuoda Community.
The appellants aside from their Amended Statement of Defence also counter claimed therein against the respondents seeking as follows:
a) A declaration that the defendants are entitled to declaration of right of occupancy in, over and in respect of the piece or parcel of land lying and situate at IZO OMUODOM in Omuoda village in Aluu in Ikwerre Local Government Area of Rivers State.
b) A perpetual injunction restraining the claimants either by themselves, agents, privies or servants from trespassing into the said land.
The respondents filed a Further Amended Reply to the Amended Statement of Defence and Defence to Counter Claim.
At the trial the respective parties made their cases calling witnesses and tendering their respective exhibits after which counsel filed and exchanged their written addresses. The learned trial Judge in a considered judgment delivered 1st November, 2012 entered judgment in favour of the claimants/respondents and dismissed the defendants/appellants’ counter claim.
Displeased with the judgment, the appellants filed a Notice of Appeal on 28th January, 2013 and which said Notice of Appeal was subsequently amended with the leave of this Court granted 10th November, 2014.
Parties in line with the rules and practice of this Court filed and exchanged briefs of argument. The appellants? brief filed 23rd December, 2014 and deemed properly filed and served on 29th February, 2016 was settled by Alex Igwe, Esq., while the respondents? brief filed 19th January, 2016 and also deemed properly filed and served on 29th February, 2016 was settled by W. T. Melville, Esq.
The appellants from the 9 (nine) grounds of the Amended Notice of Appeal distilled the following 4 (four) issues for determination of the appeal:
1. Whether the trial Court was right in awarding judgment to the respondents and whether that was based on the preponderance of evidence. (Grounds 2, 5 and 7).
2. Whether the findings by the trial Judge were based on the evidence led and established at the lower Court. (Grounds 6 and 8).
3. Whether there was proper evaluation in this case and whether the weight of evidence was properly weighed and balanced in accordance with the requirements of the law. (Grounds 4 and 9).
4. Whether the learned trial Judge was right in the award of N10,000,000 (Ten Million Naira) as general damages without proper evaluation and whether the award was not excessive, unwarranted in the circumstance. (Ground 3).
Respondents on their part donated the understated 2 (two) issues as arising for determination of the appeal:
i. Whether from the oral and documentary evidence of the respondents, including Exhibit CD5, the trial High Court was not right in holding that the claimants have established their ownership of the land in dispute and in dismissing the counter claim of the appellants. (Grounds 2, 4, 5, 6, 7 and 9 of the Appellants? Grounds of Appeal).
ii. Whether the trial High Court was not right in holding that the appellants drove the respondents away from their community because the respondents dared to stand up for their rights and in awarding general damages of N10 Million in favour of the respondents against the appellants. (Grounds 3 and 8 of the Grounds of Appeal).
I think that issue 1 (one) of the issues formulated by the respondents is all embracing and will be apt in determining the appeal. 1 shall in this vein adopt the said issue 1 (one) as well as issue 4 (four) of the appellants and they are so adopted for consideration and determination of the appeal.
ISSUE (ONE)
Whether from the oral and documentary evidence of the respondents, including Exhibit CD5, the trial High Court was not right in holding that the respondents have established their ownership of the land in dispute and in dismissing the counter claim of the appellants.
The main thrust of the appellants’ contention herein given regard to the several authorities they relied upon, is that in a claim of title to land, the onus lies on the plaintiff to satisfy the Court that he is entitled to his claims based on the preponderance of the evidence brought before the Court. Appellants re-stated the fact that the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case and that if the onus is not discharged, the weakness of the defendant will not help the plaintiff and the proper judgment will be for the defendant. See Section 137 of the Evidence Act, 2011; Olorunfemi vs. Asho (2002) 20 WRN. 43; Anyanwu vs. Mbara (1992) 5 NWLR Pt. 242, pg, 388; Ladotun vs. Oyewumi (2008) 35 WRN. 58; Aniekwe vs. Nweke (2013) 16 WRN. 116, 117; and Dike vs. Uhunmwangho (2011) 43 WRN. 75, 83., whereon the appellants finally urged on us to set aside the judgment of the trial Court and instead give judgment to the appellants as per their counter claim.
The respondents on the converse submitted that they proved their case before the lower Court as the evidence before it including Exhibit CD5 was sufficient to justify its judgment. Respondents submitted that they duly established the identity of the land in dispute and had no cause to call the evidence of boundary neighbours to prove identity of the land in dispute. They urged on us to hold that the appellants failed to prove their counter claim hence it was rightly dismissed.
RESOLUTION OF ISSUE (ONE)
While the respondents are laying claim of exclusive ownership over the Izor Omuodum land situate in Omuoda-Aluu, the appellants on their part denied the respondents? claim and on the contrary asserted joint or communal ownership of same by both parties.
With issues thus joined, each of the parties is to succeed or fail in their claim based on the strength or weakness of their respective cases. See Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336; Okpala vs. Ibeme (1989) NWLR Pt. 102, pg 208; Atuanya vs. Onyejekwe (1975) 3 SC. 115; and Tatu vs. Estate of Late Isah Alhaji Adamu (2015) 13 NWLR Pt. 1476, pg. 364 at 284.
Given the onus of establishing their claim with credible and acceptable evidence, the respondents’ case is that the land in issue was deforested by their late father Elder John Wenendah Okparaibea. They pleaded and gave evidence that it was upon his death on or about 1970 that the said parcel of land devolved on them. The respondents say that they have been exercising acts of possession and ownership by farming on the land until the appellants trespassed thereon.
Equally weighing on the shoulder of the appellants, is the burden of proving and establishing their counter claim based on the strength of their case as opposed to the weakness of the adversary. Appellants’ traditional narrative is that Aluu the founder of Aluu town had five sons namely: Gbo, Oda, Mbodo, Ike and Oko and that Oda founded the Omuoda Community to which both parties belong. Oda in his life time begat five sons amongst whom are Odom, Chio, Chiota, Arua and Onunwor. That Odom is the founder of this farm land in dispute hence it is called IZOR OMUODOM, and he had children but his last son by name Amadi Iwai Odom died childless consequent upon which the Omuodom family or lineage became extinct. The appellants had to raise money to bury Amadi Iwai Odom and thereafter inherited the land in dispute. Amadi Iwai in his lifetime also farmed the land. Appellants pleaded the fact that Chief Worji Idor was the paramount ruler of Omuoda Community when Amadi Iwai died and he organized the burial. He further allotted the portion of land currently in occupation of Shell BP by virtue of his position as the paramount ruler of Omuoda.
The respondents had pleaded as follows at paragraph 5 of their statement of claim:
Evidence shall be led to show that the claimants? father deforested the land now in dispute in or about 1945, took immediate possession of the land by farming and harvesting economic trees thereon, and maintained possession of the land till his death in or about 1970.
The appellants in stiff denial of the claim as set out above pleaded at particularly at paragraphs 11 and 12 of their Amended Statement of Defence thus:
11. Defendants denies (sic) paragraph 5 of the statement of claim. And in further answer, will state that the land in dispute is the bona fide property of Omuodom sub-family in Omuoda which was inherited by the entire Omuoda Community when Omuodom sub-family became extinct.
12. In further answer to the said paragraph, state that claimants? late father as a member of Omuoda in Aluu, received farm strips or portion from the eldest member of Omuoda in the land in dispute during farming seasons and such lands had always remained in the possession of the entire Omuoda Community.
While joining issues with the appellants, the claimants/respondents in their Further Amended Reply to 1st set of Defendants Amended Statement of Defence, pleaded inter alia at paragraphs 8 and 9 of same as follows:
8. The Claimants do not admit that Omuodom family deforested the land in dispute, that Omuoda community inherited same from Omuodom family, that the Defendants sold land at Izor Omuodom to Stanglo Integrated Services Nigeria to the knowledge of the Claimants, or that Omuoda Community has been in possession of the land in dispute, as averred in paragraphs 9, 10 and 11 of the 1st set of Defendants’ Amended Statement of Defence. In further response thereto, the Claimants aver that the land in dispute is not part of the land deforested by Omuodom family, and that the Claimants have been in possession of the land prior to the acts of the Defendants leading to this suit.
9. The Claimants do not admit paragraph 12 of the 1st set of Defendants? Amended Statement of Defence, as the Claimants? father farmed on the land in dispute and harvested economic trees thereon as of right, and not pursuant to any grant by the eldest member of Omuoda Community.
It is pertinent to also relay the evidence of the claimants/respondents? CW1 which seems to support the fact that not all lands in Omuoda are owned communally. This to say that even individuals could own lands exclusively. While under cross examination the said CW1 had answered as follows to questions put to him:
Question: – The area that was occupied by Shell forms part of the land in dispute, correct?
Answer: – Yes.
Question: – This Amadi Iwai died without having a child?
Answer:- Yes.
Question: – Now, Omuoda Community buried him?
Answer:- Yes.
Question: – By Ikwerre native law and custom, after burial of Amadi Iwai by Omuoda community all the estate of Omuodum was inherited by Omuoda, correct?
Answer: – The property of Amasi (sic) Iwai was inherited by Omuoda Community.
Question: – After the burial of Amadi Iwai, I suggest to you that Omuoda Community inherited the property of Omuodum family, including that of Amadi Iwai, correct?
Answer: – Yes.
Question: – It is correct that since that time Omuoda Community took possession of the property of Omuoduga and Amadi Iwai and have been in continued possession since, correct?
Answer: – Yes. (Emphasis mine) [See page 295 of the record of appeal].
It is evident from the foregoing excerpts that the respondents are in accord with the appellants that when the Omuodum lineage became extinct by reason of the death of Amadi Iwai, the Omuoda Community inherited his land. This shows that up until the end of the life span Of Omuodom vide the death of Amadi Iwai, the said family enjoyed exclusivity of their land and property. However while the appellants are claiming that the land in dispute is part of the Omuodom land which the Omuoda Community inherited on the death of Amadi Iwai, the respondents are claiming that it is their exclusive inheritance from their late father and founder Elder John Wenenda Okparaibea. In the face of this lock jam, the Court is to resort to evidence of acts of recent possession in order to determine the status of the disputed land. To actualize this, the envisaged acts of possession must be numerous and positive over a sufficient length of time to warrant the drawing of the inference. The respondents pleaded that part of the land in dispute includes part of the portion of land acquired or occupied by Shell BP and that it was their uncle late Chief Wordu Okparaibea who allotted the portion to it. Be that as it may the CW5 (respondents? witness) under cross examination said that the land occupied by Shell BP does not form part of the land in dispute. This corroborates the case of the appellants to the effect that the land occupied by Shell BP does not form part of the land in dispute.
Now, by Exhibits CD5 and CD8, coupled with the evidence of CW1 and CW4, it is apparent that other individual members of the Omuoda Community deforested and farmed on their individual parcels of land in Izor Omuodom farm. Exhibit CD5 shows that the respondents? father being one of the members of Omuoda Community deforested land at Izor Omuodom. I find no cause to doubt the veracity of this piece of evidence. The CW4 led evidence that he lived with the father of the respondents between 1950 and 1956 while the deforestation was in progress. He was helping him out with farming at the time. As earlier stated in this judgment, the respondents upon inheriting the land in dispute on the death of their father, continued to farm on the land until their adversaries trespassed into it.
At the end of the day and with recourse to balance of probability, it is more probable that the respondents rather than the said appellants, successfully established their acts of possession and ownership over the land in dispute.
Accordingly, the question whether from the oral and documentary evidence of the respondents, including Exhibit CD5, the trial High Court was not right in holding that the respondents have established their ownership of the land in dispute and in dismissing the counter claim of the appellants, is answered in the affirmative. This is to say that the learned trial Court was right when he held that:
I am on the preponderance of evidence of the opinion that the claimants (respondents) have established that they are the owners of the land in dispute and I so hold.
Issue 1 (one) is therefore resolved in favour of the respondents and against the appellants.
RESOLUTION OF ISSUE (TWO)
Whether the learned trial Judge was right in the award of N10,000,000 (Ten Million Naira) as general damages without proper evaluation and whether the award was not excessive, unwarranted in the circumstance.
The learned trial Judge at his discretion had awarded the sum of N10,000,00.00 (Ten Million Naira) as general damages in favour of the respondents jointly and severally and like all other discretionary acts of the Court, the lower Court is expected to act judiciously and judicially. In the Supreme Court authority of Lafferi (Nig.) Ltd.vs. NAL Merchant Bank Plc. (2015) 14 NWLR Pt. 1478, pg. 64 at 87-88, paras. H-B, it was held that:
In an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because if faced with similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously. It is not for the appellant to repeat the same argument before the appellate Court in the hope that it would exercise its discretion differently. [Minister, P.M.R. vs. Expo-Shipping Line (Nig.) Ltd. (2010) 12 NWLR (Pt. 1208) 261; Lauwers Import Export vs. Jozebson Ind. Co. Ltd. (1988) 3 NWLR (Pt. 83) 429 referred to.]
Thus, it is at the discretion of the Court to decide the amount it should award as general damages having regard to the suffering caused the claimant or humiliation and injuries suffered. The attitude of appellate Courts towards such award was clearly spelt out by Kekere-Ekun, JSC, in British Airways vs. Atoyebi (2014) 13 NWLR Pt. 1424, pg. 253 at 287-288 as follows:
An appellate Court would not usually interfere with a previous award unless satisfied: a. that the trial Court acted under a mistake of law; or b. where the trial Court acted in disregard of some principle of law; or c. where it acted under a misapprehension of facts; or d. where it has taken into account irrelevant matters; or e. where injustice would result if the appellate Court does not interfere; or f. where the amount awarded is either ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of damage”. See also Union Bank of Nigeria Limited v. Odusote Book Stores Limited supra and Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172, 200. It needs be added that factors enumerated above are disjunctive and not cumulative, and so the presence of any of the factors or a combination of some or all them would justify interference by an appellate Court in damages awarded by a trial Court.
Again it is trite that where a certain amount is claimed, the Court may in a proper case award less than is claimed. The Court cannot and should not award more than the claim in the pleadings. See the case of SCOA Motors vs. Abumchukwu (1973) 4 SC., 34, 40; and Ogunyade vs. Oshunkeye (2007) 44 WRN 1, 5.
In the instant case, the respondents had asked for N10 Million inclusive of special and general damages. Since the award as made by the trial Court is only for general damages, the amount cannot in the circumstance weigh up to that award. In this regard I believe that the learned trial Court acted under a misapprehension of the facts before him. To this end, I shall vary the amount awarded as general damages given that it is excessive and it is thus reduced to N500, 000.00 (Five Hundred Thousand Naira) in favour of the respondents and against the appellants.
In all, issue 2 (two) is resolved partly in favour of the appellants.
In summation, this appeal is devoid of merit. It is therefore dismissed. This is to say that the judgment of the learned trial Judge in suit No. IHC/89/2005, per Hon. Justice W. A. Chechey, J. delivered 12th November, 2012, is affirmed, save for the general damages awarded which is hereby varied downwards.
Cost of N50,000.00 awarded in favour of the respondents and against the appellants.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA gave me the opportunity of reading the lead Judgment before it was delivered. I agree that the appeal is lacking in merit and I dismiss it. I abide by the consequential orders.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the advantage of reading in draft the lead judgment read by my learned brother, C. I. Jombo-Ofo, JCA. I entirely agree with the reasoning and conclusions reached there and there being nothing useful to add, I too affirm the decision of the trial Court in part. I also abide by all the consequential orders made including order to costs.
Appearances:
Alex Igwe, Esq.For Appellant(s)
S.A. Alali, Esq. with him, E.H. Okagua, Esq.For Respondent(s)
