CHIEF KOLA DAISI v. PROPHET PRINCE YOMI OLOTO
(2012)LCN/5799(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of May, 2012
CA/I/10/2008
RATIO
ACTION: WHAT LAW GOVERN THE ADMISSIBILITY OF DOCUMENT
The law governing the admissibility of document is the Evidence Act and the law in operative at the time the cause of action arose is the applicable law. PER MODUPE FASANMI, J.C.A.
EVIDENCE: ON WHOM LIES THE ONUS OF PROVING IN AN ACTION FOR DECLARATION OF TITLE
The onus is on the Plaintiff as in this case for a declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendants case. See ADESANYA V. ADEROUNMU (2000) 9 NWLR PART 672 AT 370 and BAMIKOLE VS. OLADELE (2010) 34 WRN at 15. PER MODUPE FASANMI, J.C.A.
LAND LAW: WHETHER ACTS OF POSSESSION EXERCISED OVER LAND MAY CONSTITUTE EVIDENCE OF OWNERSHIP
Acts of possession exercised over a portion of land may constitute evidence of ownership of the adjourning land by virtue of Section 46 of the Evidence Act. See the cases of OKECHUKWU VS. OKAFOR (1961) 1 ALL NLR PAGE 685, NWOSU V. OKOLI (1999) 2 NWLR PART 592 PAGE 598 AT 610 PARAS C – E AND NWOKERO V. ONUMA (1999) 12 NWLR PART 631 PAGE 342 AT 359 – 360 PARAS H – A. PER MODUPE FASANMI, J.C.A.
LAND LAW: PURPOSE OF FILING A COUNTER PLAN IN A LAND DISPUTE SUIT
In the case of ARCHIBONG VS. IKA (2004) 2 NWLR Part 858 page 590 at 629 – 6 30 paragraphs H – B, the Supreme Court opined that:
“the main purpose of filing a counter plan in a suit where land is in dispute is to counter or counter act an existing plan filed by an adverse party and to expose it as incorrect or inaccurate and to expose it as incorrect or inaccurate…” PER MODUPE FASANMI, J.C.A.
DAMAGES: PRINCIPLES GUIDING THE AWARD OF DAMAGES
An award of damages is always at the discretion of the Court and the discretion must be exercised judicially and judiciously. Therefore in awarding damages, a trial Court must make its own assessment of the quantum of such damages in the light of evidence adduced and not base its award on speculative claim and scanty facts. See ABIARA VS. REG. T.M.C.M. (2007) 11 NWLR PART 1025 AT 280 AND GARI VS. SERAFINA (NIG.) LTD (2008) 2 NWLR PART 1070 AT PAGE 1. PER MODUPE FASANMI, J.C.A.
Before Their Lordships
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
MODUPE FASANMIJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
Between
CHIEF KOLA DAISIAppellant(s)
AND
PROPHET PRINCE YOMI OLOTORespondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of an Oyo State High Court sitting in Ibadan Judicial Division delivered on the 7th of May 2007.
Appellant as the Plaintiff at the lower Court endorsed in paragraph 10 of his statement of claim as follows:
(1) N20,000.00 damages for trespass committed by the Defendant his servants, agents and or privies on piece of land situate along Ring Road, Ibadan comprised in a deed of assignment registered as No. 10 page 10 in volume 2651 of the Lands Registry in the office at Ibadan,
(2) Injunction restraining the Defendant his servant, agents and or privies from committing further acts of trespass on the Plaintiff’s said piece of land,
The Respondent as the Defendant filed an amended Statement of Defence to which was subjoined a Counterclaim in paragraph 11 which pleads as follows:
(i) Declaration that the Defendant is entitled to a Statutory right of occupancy over all that piece of land situate, lying and being at Idi-Oro area Oke-Ado, Ibadan now known as Ring Road area, Ibadan particularly verged green on plan No.OY/OS/1436/04 filed along with the amended Statement of Defence and Counter claim.
(ii) An order for possession of the said parcel of land presently being occupied by the Plaintiff
(iii) The sum of N20.5 million being special, exemplary and/or aggravated damages and general damages suffered by the Defendant as a result of the unwarranted acts of the Plaintiff resulting into the defence of this suit.
(iv) The sum of N5,000.00 per appearance being the solicitors transport allowance from 14th 2006 until the date of Judgment.
The Appellant as the Plaintiff at the lower Court as reflected in his amended statement of claim and reply to the counter-claim is that the land in dispute was and is at all material times in his possession and that the Respondent committed acts of trespass on the land while in his possession.
The land is shown on the Survey Plan attached to the Certificate of Occupancy and Deed of Assignment tendered by the Appellant as exhibits A and C.
While the Respondent as Defendant’s case at the lower court in his Statement of Defence and counter-claim is that he became owner of an area of land measuring 400 x 50 within the stream set back to Akobale Layout at Ring Road, Ibadan by purchase from one Mrs. Pratt. He denied committing any act of trespass on the Appellant’s land. The parties and their witnesses testified at the lower court. The trial Court on the 7th of May, 2007 dismissed the Appellant’s claim and granted the Respondents’ counterclaim in part. Dissatisfied with the judgment, Appellant appealed to this Court by filing the original notice of appeal dated 16th May 2007. The second notice of appeal is dated 27th June 2007. Appellant relied on the notice of appeal dated 27th June 2007 for the purpose of this appeal.
Appellant’s brief of argument is dated and filed on 21/4/10 while the Respondent’s brief of argument is dated and filed on 27/5/10.
Learned Silk for the Appellant distilled five issues for determination as follows:
(1) Whether the learned trial Judge was right in failing to strike out all consequential amendments to the Statement of Defence which are without leave of the Court
(2) Whether the learned trial Judge was right in failing to strike out and expunge exhibit I from the records
(3) Whether the Plaintiff proved his case for trespass and injunction
(4) Whether in view of the pleadings and the evidence, the defendant made out a case for the grant of statutory right of occupancy to the land covered by exhibit O, possession and damages
(5) Whether the trial Judge was right in awarding aggravated damages
The Respondent’s Counsel while adopting the issues formulated by the Appellant re-phrased them as follows:
(i) Whether the learned trial Judge was not right in not striking out all the consequential amendments to the Statement of Defence and Counterclaim in view of the Appellant’s failure to object to same timeously
(ii) Whether the learned trial Judge was not right in not striking out and expunging exhibit I from the record
(iii) Whether in view of the pleadings and the evidence led thereon, the Appellant had proved his case for trespass and injunction on the balance of probability
(iv) Whether in view of the pleadings and the evidence led thereon, the Respondent has not made out a case for the grant of statutory right of occupancy to the land covered by exhibit O, possession and damages
(v) Whether the learned trial Judge was not right in awarding aggravated damages.
Before going into the merit of the appeal it is expedient to treat the preliminary objection raised by the Respondent which has been incorporated into the Respondent’s brief.
Learned Counsel for the Respondent’s submitted that ground 2 of the Appellant’s ground of appeal and issue No 2 formulated thereon challenged the refusal of the learned trial Judge to strike out exhibit I which he claims was wrongly admitted in evidence. Exhibit I was admitted on 17th May, 2006 after the learned trial Judge struck out the objection raised by the Appellant’s Counsel to the admissibility of same.
Learned Counsel for the Respondent further submitted that the ruling delivered by the learned trial Judge on 17th May 2006 admitting exhibit 1 in evidence is an interlocutory decision and that the ground of appeal challenging the admissibility of exhibit 1 qualified as an interlocutory appeal which ought to have been filed on or before the expiration of 14 days of the delivery of the ruling. He contended that the appellant’s appeal against the admissibility of exhibit 1 is incompetent because it was filed outside the 14 days period limited for the filing of interlocutory appeals by Section 25 (2) (a) of the Court of Appeal Act, Cap 75 Laws of the Federation of Nigeria 1990 without obtaining the leave of the learned trial Judge or of this Honourable Court as required by Section 242 of the Constitution of the Federal Republic of Nigeria 1999 and without obtaining an order extending the time within which to file the appeal under Section 25 (4) of the Court of Appeal Act, supra. Learned Counsel for the Respondent relied on the cases of C.B.N VS. OKOJIE (2002) 1 NWLR Part 768 page 48 at 61G-62D and AFOLABI VS. IGUNBOR (1992) 8 NWLR Part 252 page 115 at 124F-125B.
Learned Counsel urged the Court to strike out ground 2 of the Appellant’s notice of appeal and issue 2 formulated thereon in the Appellant’s brief of argument as being in competent.
Learned Silk for the Appellant in reply filed an additional authority on the 17th of December 2010. The authority is ONWE VS. OKE (2001) 3 NWLR Part 700 Page 406 at 418F which according to Learned Senior Counsel relates to Paragraph 3.2. of the Respondents brief relating to the objection and that the authority answers the Respondents’ objection. He urged the court to strike out the preliminary objection.
In the case of ONWE VS. OKE (supra) referred to by Learned Silk for Appellant, the learned jurist EJIWUMI J.S.C. as he then was at page 418 Paras E-F had this to say:
“Ordinarily where an Appellant failed to appeal against an interlocutory order or ruling of a trial court within the time prescribed by Section 25(2)(a) of the Court of Appeal Act 1976, he must obtain the leave of Court for his appeal to be competent. Where on the other hand, the complaint of the Appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an Appellant would not require the leave of Court as the ruling appealed against is not regarded as an interlocutory decision. The Appellant may therefore include the ground of appeal against that ruling of the trial court when appealing against the final judgment of the trial Court.”
In the instant case, it is manifest that the complaint of the Appellant in ground 2 of the Appellant’s ground of appeal and issue No.2 formulated thereon challenged the refusal of the learned trial Judge to strike out exhibit 1 which he claimed was wrongly admitted in evidence. Since the complaint of the Appellant is against the wrongful admission of evidence. Appellant would not require the leave of court as the ruling appealed against is not regarded as an interlocutory decision. Having regard to what I have said above, Ground 2 of the ground of appeal as well as issue 2 formulated therefrom are competent. The preliminary objection of the Respondent to the said ground and issue distilled from it is hereby overruled and struck out accordingly.
We now go to the merit of the appeal since the issues formulated by the parties are similar but drafted differently; I shall adopt the issues formulated by the learned Senior Counsel for the Appellant in the determination of the appeal.
ISSUE ONE
Whether the Learned Trial Judge was right in failing to strike out all consequential amendments to the Statement of Defence which are without leave of the Court.
Learned Senior Counsel for the Appellant submitted that consequential amendment is not a license for general amendment. Appellant by an order of the lower Court dated 17th May 2006 amended Paragraphs 2(6), 4 and 5 of the reply. The Respondent at the close of the Appellant’s case and without leave of the Court filed consequential amendment to paragraphs 3(i), (ii) 5, 10(a) and 10(c) of the Statement of Defence which are not related to paragraphs 2(6) 4 and 5 of the Statement of Claim. Upon objection raised by the Appellant, the Learned Trial Judge rightly held as follows:-
“I am in total agreement with the learned Plaintiff’s Counsel that consequential amendment is not a license for general amendment, I am not relying on exhibit M in this judgment.”
Learned Silk submitted further that in spite of the foregoing observation, the trial Judge failed to strike out the amendments to paragraphs 3(i), (ii), 5, 10(a) and (c) of the consequential amended statement of defence which are not related to the amendment in the reply and also failed to expunge the evidence relative thereto. Learned Silk for the Appellant submitted that if the said paragraphs of the consequential amended statement of defence had been struck out and all the evidence relating to them expunged from the record, the judgment of the Court would have been different. He submitted that Appellant has suffered miscarriage of justice. Reliance was placed on the cases of ADENLE VS. OLUDE (2002) 18 NWLR Part 799 page 413 at 434 paras F – H, OJOH V. KAMALU (2005) 18 NWLR Part 958 page 523 at 558H-559B and ONOCHIE VS. ODOGWU (2006) 6 NWLR. Part 975 Page 65 at 85-86 paras G-A. Learned Silk urged the court to strike out all such amendments from the consequential amended statement of defence and expunge from the record all evidence relative thereto as the amendments are deemed not before the Court.
Learned Counsel for the Respondent submitted that the consequential amendment to the Appellant’s reply was made on 17th May 2006 pursuant to an order of the Court of the same date. He contended that the learned Silk ought to have raised the issue of excess amendment within a reasonable time of being served with the consequential amended process. The alleged failure to obtain leave to effect the consequential amendment does not make the process void but voidable and remains valid until set aside. Submitted further that, the Appellant had waived his right to object to the amendment effected thereby as it was too late in the day to do so. Learned Counsel referred to Order 2 Rules 2 (1) and (2) of Oyo State High Court (Civil Procedure) Rules 1988 which provided as follows:-
2(1) “Any application to set aside for irregularity any proceedings, any steps taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularty”.
Under and by virtue of Order 2 Rule 2(2) of the Oyo State High Court (Civil Procedure) Rules 1988, any application to set aside such irregularly filed processes must be made by either a summons or notice of motion and not at the final address.
He referred to the case of JOZEBSON INDUSTRY CO. LTD. VS. LAUWNERS IMPORT/EXPORT (1988) 3 NWLR. Part 83 Page 429 at 452H and EKPUK VS. OKON (2002) 5 NWLR. Part 760 Page 445 at 472 paras E-G. Learned Counsel for the Respondent urged the Court to resolve issue one against the Appellant.
In the appeal under consideration, it is obvious on the printed record that the learned trial Judge in granting the Appellant’s application at page 113 of the record granted leave to the Respondent to file any consequential amendment within seven days. Consequent upon the leave granted to the Respondent, the Respondent filed his consequential amended statement of defence and counter claim on 22nd of May 2006. The case thereafter proceeded to further hearing, Appellant’s Counsel cross examined all the witnesses that testified on the consequential amendments on behalf of the Respondent without any objection on the nature of the amendment made. Learned Silk for the Appellant raised the issue of excess amendment in the course of his final address to the Court at pages 160-161 of the record.
Learned Counsel for the Respondent rightly submitted that Learned Silk ought to have raised the issue of excess amendment within a reasonable time of being served with the consequential amended process. Appellant is deemed to have waived his right by not objecting to the amendment effected within a reasonable time. In the case of DUKE VS. AKPABUYO L. G. (2005) 19 NWLR Part 959 page 130 at 153 – 154 paras F – A the court was of the view that:
“The appropriate time at which a party to proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party “sleeps” on that right and allows the proceedings to continue on the irregularity to finality (as happened in this case leading to this appeal) then the party cannot be heard to complain at the concluding or concluded stage of the proceedings. The only exception to this general rule is that the party would be allowed to complain in appeal if it can show that it has suffered a miscarriage of justice by reason of the procedural irregularity.”
See also RMAFC VS. ONWUEKWEIKPE (2009) 15 NWLR Part 1165 Page 592 at 607 – 608 paras F – A. For the Appellant to say that he has suffered miscarriage of justice without showing how the decision would have been different is not sufficient and acceptable. He ought to have shown the evidence on record which would have made the judgment to be different if it had not been given. He who asserts must prove. It is then he can complain on appeal that he has suffered a miscarriage of justice by reason of the procedural irregularity. Appellant therefore does not come under the exception to the general rule, Issue One is hereby resolved against the Appellant.
ISSUE TWO
The Learned trial Judge relied on exhibit 1 which was wrongly admitted in evidence.
Learned Silk for the Appellant submitted that a survey plan not counter signed was inadmissible in evidence by reason of Section 3(1)(b)(11) of the Survey Law Western Region Reliance was placed on the case of ATOLAGBE VS. SHORUN (1985) 1 N.W.L.R. Part 2 Page 360 at 373 paras F-H. He submitted that the learned trial Judge was in error and misdirected himself by endorsing the use of exhibit 1 in the preparation of exhibit O when the trial Judge said:
“However it is on record that D.W.4 clearly stated in his evidence that in preparing exhibit O, he was given exhibit 1 from which the disputed plan was prepared. I am satisfied that exhibit O is quite sufficient for our purpose in this case.”
Submitted that by reason of the foregoing, miscarriage of justice was occasioned because it is clear that exhibit 1 which altered the area and description of the land in exhibit D was incorporated in exhibit O. Submitted further that the judgment would have been different if the learned trial Judge had expunged exhibit 1 from the record and there would have been no basis for the Respondent’s counter claim. Learned Silk refers to the cases of OJIBAH vs. OJIBAH (1991) 5 NWLR. Part 797 Page 206 at 372D where the apex court stated that “a document which is not shown to be genuine and legal is of no forensic value. No right can be hoisted on it.”
LAWS0N vs. ANFANI (2000) 17 NWLR, part 752 page 585 at 618 paras F-H where the Court of Appeal held that a Survey Plan not counter signed is not admissible in evidence. Learned Silk urged the court to resolve issue 2 in favour of the Appellant.
Learned Counsel for the Respondent submitted that although exhibit 1 was made in 1963, the cause of action in this case never arose until year 2001 by which time the survey law of Western region 1959 had been amended twice in 1978 and 2000 respectively. Submitted further that Section 3 of the Survey Law of Western Region 1959 contained a proviso requiring the counter signature of the Surveyor General before a Survey Plan would be admissible in evidence. This was the position of the law relating to the admissibility of Survey Plan when the Survey Law of Western Region was in force but after the amendment, the Survey Law of Oyo State of 1978 did not retain the said proviso in its own Section 3. The said proviso was completely deleted.
Learned Counsel for the Respondent submitted that the cases of ATOLAGBE VS. SHORUN (1985) 1 NWLR, Part 2 Page 360 at 373 paras F-H and LAWSON VS. ANFANI (2000) 17 NWLR part 752 Page 585 at 678 paras F-H cited by the Appellant’s Counsel are not applicable to the case at hand.
In distinguishing between the two cases and the case at hand, Learned Counsel for the Respondent contended that in ATOLAGBE VS. SHORUN’S case (supra), it was decided in 1985 and it was based on Section 3(1)(b)(ii) of the Survey Law of Lagos State Cap 132 which forbids the admission of a Plan in evidence unless it has been examined by the Survey Department and bears the counter signature of the Surveyor General. The Lagos Survey Law was in pari material with the Survey Law of Western Region 1959 but not in pari material with Section 3 of the Survey Laws of Oyo State, 2000 while LAWSON VS. ANFANI’S case supra arose out of Kaduna State and it followed the ratio decidendi of the first case without specifying the Survey Law under consideration. Learned Counsel for the Respondent urged the Court to resolve this issue in favour of the Respondent.
The law governing the admissibility of document is the Evidence Act and the law in operative at the time the cause of action arose is the applicable law. When this suit was instituted in 2004, the provisions of the Survey Law of Western Region were no longer in operation. The law in operation as at the time the cause of action arose in this case is the Survey Laws of Oyo State 2000.
Section 3(b) of the Survey Laws of Oyo State 2000 provides as follows:
“3. No map, plan or diagram of land
(a) ………………………………
(b) If prepared after the 20th October 1987 shall, save for good cause shown to the court, be admitted in evidence in any court, unless the map, plan or diagram has been prepared and signed by a Surveyor or is a copy of a map, plan or diagram so prepared and signed and is certified by a Surveyor as being a true copy.”
The only requirement to be met by a Survey Plan before admissibility is that it must be prepared by a Surveyor. See the cases of BABATOLA v. OBA ALADEJANA (2001) 12 NWLR, Part 728 Page 597 at 609 paras E-H and 610 paragraphs A-D. See also AGBOOLA VS. ABIMBOLA (1969) 1 ALL NLR page 287. In the instant case exhibit 1 i.e. Survey Plan No.OG/38/63 which was prepared by a qualified surveyor is admissible in evidence. The case at hand is distinguishable from ATOLAGBE VS. SHORUN (supra) and LAWSON VS. ANFANIS (supra) cited by the Learned Silk for the Appellant where the court applied the Survey Law of Western Region 1959 which was then the applicable law. I agree with the learned Counsel for the Respondent submission that exhibit 1 is admissible and the statement of the learned trial Judge that he is not placing reliance on the said exhibit was just a slip and not a material error that has resulted in a miscarriage of justice. See the case of AJUWON VS. AKANNI (1993) 9 NWLR Part 316 Page 182 at 205, paras A-F, AZUETONWA IKE VS. UGBOAGA (1993) 6 NWLR Part 301 page 539 at 556 and ONAJOBI VS. OLANIPEKUN (1985) 4 S. C. Part 2 Page 156 at 163.
The Learned trial Judge when admitting exhibit 1 at page 116 lines 15-17 of the record stated that the weight to be attached to exhibit 1 is another matter. The court when considering the exhibit attached heavy weight to it based on the evidence before him. Issue two is hereby resolved against the Appellant.
ISSUE THREE
Whether the Plaintiff proved his case for trespass and injunction.
Learned Silk for the Appellant submitted that the Appellant pleaded facts and produced evidence of possession and title traced to Alade Family to a clearly defined area shown in Survey Plans attached to exhibits A and C and wrongful entry thereon by the Respondent. Submitted further that the Respondent admitted that the Appellant has foundation and fence on the land, and that he planted vegetables thereon. He contended that the trial Judge was wrong in refusing to hold that the Appellant established his title to the land and as a matter of law was in possession. Reliance was placed on the case of UMEOBI VS. OTUKOYA (1978) 4 S.C. Page 33 at 55.
Learned Silk argued further that although both the Appellant and Respondent claimed to be in possession of land at Ring Road, Ibadan, the learned trial Judge failed to appreciate that:
(i) Although the Appellant by paragraphs 2(1), (2), (3), (6) and 5 of the reply at pages 185- 186 challenged the validity of the transactions evidenced by exhibits D and H and joined issue with the Respondent that the land described in exhibits D and H claimed by the Respondent does not extend to or correspond with the land claimed by the Appellant, the Respondent failed to discharge the onus on him.
(ii) The Respondent failed to prove, root of his title or to show any title at all or lawful possession.
(iii) The land in issue in this case is the land comprised in exhibits A and C and not the land shown in exhibit O.
(iv) The Respondent presented two conflicting and contradictory pieces of land as the land in dispute and
(v) Descriptions and area of the land in exhibits D, H, I and O are contradictory.
Learned Silk for the Appellant referred to the cases of ROMAINE v. ROMAINE (1992) 4 NWLR Part 238 page 650 at 662 pares D-G, OJIBAH v. OJIBAH (1991) 5 NWLR PART 917 page 184 at 206 – 207 paras D – F, H – A and 219 paras F – G.
Submitted further that since the Respondent failed to produce evidence to dislodge the evidence produced by the Appellant, the learned trial Judge ought to have held that the Appellant showed better title to the land in dispute. He urged the Court to resolve issue 3 in favour of the Appellant.
Learned Counsel for the Respondent submitted that both the Appellant’s pleadings and the evidence led thereon at the hearing of this suit fell short of the legal requirements for proof of title. Appellant traced his title to Chief Lamidi Adedibu who in turn traced his own title to Alade family. The said Chief Lamidi Adedibu gave evidence as PW1 while the Appellant himself gave evidence as PW3. An official of Ibadan South West Local Government who tendered Akobale layout gave evidence as PW2. Submitted further that the Appellant was not able to prove title to the land in dispute because the evidence led by the Appellant as to the location, identity and extent of the land were not credible. The evidence of the Appellant’s witnesses and the plans attached to exhibits A and C do not contain the boundaries and adequate description of the land. They merely described the land as being along Ring Road, Ibadan without specifying its precise location. Reliance was placed on the case of OKOLO vs. DAKOLO (2006) 14 NWLR (Part 1000) page 401 at 443B.-
Learned Counsel for the Respondent submitted that the Appellant was never in lawful possession of the land in dispute as he forcefully took possession from the Respondent culminating on the assault committed on the Respondent’s wife. The totality of the pleadings and evidence led at the trial court firmly support the trial Judge’s dismissal of the Appellant’s case.
He argued further that PW1 in his evidence stated that he bought two parcels of land from Alade’s family and that while he sold plot A to Elf petrol, he sold plot B to the Appellant. Submitted further that there is nothing in exhibits A and C to show that the land therein is plot B. He urged the Court to reject the evidence of PW1 as being in-consistent and unreliable. He referred to the cases of (i) AYINDE VS. ABIODUN (1999) 8 NWLR Part 616 page 587 at 595 paras G – H, AKANMU vs. ADIGUN (1993) 7 NWLR Part 304 page 218 at 235 paras G – H. Learned Counsel urged the Court to resolve issue 3 against the Appellant.
It is trite law that trespass is available at the instance of the person in possession of the land in dispute. A person can sue for trespass even if he is neither the owner nor a privy to the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it to undisturbed enjoyment of the land against wrong doers except a person who could establish a better title. See the cases of AMAKOR VS. OBIEFUNA (1974) 1 ALL NLR Part 1 page 119 at 120 lines 5 – 7 and ATUNRASE & ANR V. SUNMOLA & ANOR (1985) 1 NWLR Part 1 page 105.
In the instant case, Appellant in establishing his title to the land in dispute tendered exhibits A and C i.e the vendor’s certificate of occupancy and his own deed of assignment. This is one of the recognized methods of proving title to land as enunciated in the case of IDUNDUN vs. OKUMAGBA & ORS (1976) 9-10 S.C page 227. From the evidence on record, Appellant merely tendered the documents of grant or title but failed to prove the root of title of the original owner of the land in dispute. Where as in the instant case an issue has been seriously raised as to the title of a grantor to the land in dispute, the origin or root of title of the grantor must not only be clearly averred in the pleadings, it must also be proved by evidence. See the case of OGUNLEYE V. ONI (1990) 2 NWLR PART 135 PAGE 745 AT 782 – 783. In other words, Alade’s family from whom the Appellant’s vendor purchased the land in dispute must be shown to have the right to alienate the land in dispute and sell some to his vendor. See IGWE V. ALOZIUWA (1990) NWLR PART 141 at 735. The onus is on the Plaintiff as in this case for a declaration of title to land to prove that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. He can only rely on his own evidence alone and not on the weakness of the Defendants case. See ADESANYA V. ADEROUNMU (2000) 9 NWLR PART 672 AT 370 and BAMIKOLE VS. OLADELE (2010) 34 WRN at 15.
While the case of the Respondent was that the Olukosi family were the original owners of the land. The said Olukosi family sold the land to Messrs Saka Owoade, Emiola Amusa Adeleke and Samuel Adeyemi Laniyonu vide exhibit F. The recitals in exhibit F showed how the Olukosi family came about the ownership of the land in dispute. The learned counsel for the Respondent rightly submitted that Messers Saka Owoade and Emiola Adeleke were properly vested with the land they sold to the Respondent’s vendor by virtue of exhibits F and P.
The parties did not agree as to the identity of the land in dispute Appellant described his land as being along Ring Road, Ibadan, Oyo State. He did not plead the boundary features of the land in dispute as the law requires of him. The Respondent on his own part, pleaded the boundary features of the land in dispute in paragraphs 4A, 4B & 4C of the amended statement of defence and counter claim at page 124 of the record. The evidence of pw1 and pw3 to the effect that there is a stream at the back of the land confirmed the natural boundary of the land as pleaded by the Respondent. Exhibit B tendered by the Appellant also confirmed that Elekunkun Stream is adjacent to plot 1 as averred by the Respondent. The said exhibit supports the case of the Respondent. Exhibit D tendered by the Appellant showed that Saka Owoade and Emiola Adeleke sold the land to the Respondent’s vendor. The relevant question for one to ask is where exactly along Ring Road is the Appellant’s land?
There is evidence that the Respondent exercised various acts of ownership over the whole area of land inclusive of the land in dispute by sale of part of it to Mrs. Ekeke who even went ahead and obtained a Certificate of Occupancy tendered in evidence as exhibit L over the portion sold to her. Acts of possession exercised over a portion of land may constitute evidence of ownership of the adjourning land by virtue of Section 46 of the Evidence Act. See the cases of OKECHUKWU VS. OKAFOR (1961) 1 ALL NLR PAGE 685, NWOSU V. OKOLI (1999) 2 NWLR PART 592 PAGE 598 AT 610 PARAS C – E AND NWOKERO V. ONUMA (1999) 12 NWLR PART 631 PAGE 342 AT 359 – 360 PARAS H – A.
Exhibit O was served on the Appellant after it was filed. It was subsequently tendered in evidence by the Surveyor who prepared it. The Appellant did not at any time file a counter plan to counter exhibit O or call a Surveyor to dispute its content. In the case of ARCHIBONG VS. IKA (2004) 2 NWLR Part 858 page 590 at 629 – 6 30 paragraphs H – B, the Supreme Court opined that:
“the main purpose of filing a counter plan in a suit where land is in dispute is to counter or counter act an existing plan filed by an adverse party and to expose it as incorrect or inaccurate and to expose it as incorrect or inaccurate…”
Since the Appellant did not counter exhibit O by any means, he must therefore be taken to have admitted its contents. Learned Silk for the Appellant cannot by way of address contend that exhibit O is not reliable as address of Counsel is not a substitute for evidence.
The learned trial Judge after consideration of the pleadings and evidence came to an irresistible and right conclusion at page 233 that:
“I have carefully considered the evidence of the witnesses called by the defendant. I have also examined the documents of title tendered by him. There is uncontroverted evidence that the Defendant had been put into possession of the land in dispute since 1975— By the combined effects belonged to Olukosi family of Ibadan—The defendant in this case has a better right to the possession of the land in dispute.”
The evidence of DW2 showed that the Respondent had been in possession of the land in dispute since 1975. He testified that after the purchase of the land in dispute, he had been farming on the land, they filled up the land gradually and sold part of the land to two people who were never disturbed by anybody. These pieces of evidence of possession on the part of the Respondent are more probable then that of the Appellant. The Appellant could only dislodge Respondent’s evidence of possession by more credible evidence. See AGBAISI VS. EBIKOREFE (1997) 4 NWLR Part 502 page 630 at 649 para H – 650 para H, the Court had this to say:
“–in this case as the Respondent were found to be in possession of the land in dispute. Section 146 of the Evidence Act operated or became applicable in their favour by requiring the Appellant who were contending that the Respondent were not the owners of the land in dispute to prove it.”
I am unable to argue with the learned silk for the submission that the learned trial Judge mis-applied the provision 146 of the Evidence Act.
In the light of all that had been stated above, Appellant has failed to prove his case for trespass and injunction. Issue three is hereby resolved against the Appellant.
Issue Four
Whether in view of the pleadings and the evidence, the Defendant made out a case for the grant of Statutory Right of Occupancy to the land covered by exhibit O, possession and damages.
Learned Silk for the Appellant contended that the Respondent is not entitled to declaration of Statutory Right of Occupancy because he only possessed a land sale agreement coupled with possession. Reliance was placed on the case of THOMPSON VS. AROWOLO (2003) 7 NWLR Part 818 Page 163 at 213-214 paras H-D and 229 paras E-G.
Learned Counsel for the Respondent submitted that THOMPSON v. AROWOLO supra is not on all fours with the case at hand and therefore it is not applicable. He distinguished between Arowolo’s case and the case at hand. In Arowolo’s case, the vendor and the person that bought the land from her were parties to the suit but in the case at hand, Owoade, Adeleke and Pratt were all dead and they were not parties to this case. Neither do they make any claim for declaration of entitlement to Statutory Right of Occupancy. Therefore the ratio in Thompson’s case is not applicable to this case.
It is the law that after a person has effectively divested himself of his interest in land or other res, no right naturally vests in him with respect to such land or res any more for “nemodat qued non habet meaning that no one can give that which he does not possess”. See the case of SANYAOLU V. COKER & ANOR (1983) 3 NSCC page 119 at 129 where Aniagolu J.S.C. stated that:
“a person cannot obviously eat his cake and have it. This is simple common sense…A Plaintiff cannot have what he himself says he has given away, …A Plaintiff who says he had sold the land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he had sold.”
See also OKOYE V. DUMEZ (NIG) LTD (1985) 1 NWLR part 4 page 783 at 790.
Besides all the documentary evidence relied upon as establishing the title of the Respondent to the land in dispute are all over twenty years of age and as such the presumption of due execution and correctness of their contents enure in his favour. See AYANWALE V. ODUSANMI (2012) Vol. 3 WRN page 1 at page 15 lines 33 – 36 where Rhodes Vivour J.S.C. opined
“Exhibits B and C are conveyances which show the plaintiffs/Appellants root of title. They were executed in 1959 and 1961 well over 20 years before proceedings commenced in this case. The presumption is that the documents supra are genuine”.
Since all the documents relied upon by the Respondent for establishing his title to the land in dispute are over 20 years, the presumption is that the documents are genuine. Issue four is also resolved against the Appellant.
Issue Five
Whether the trial Judge was right in awarding aggravated damages.
Learned Senior Counsel for Appellant submitted that the learned trial Judge wrongly applied the principle for the award of exemplary damages by drawing inference of guilty knowledge in that the Plaintiff knew that the land in dispute was not his. Reliance was placed on the case of WILLIAMS V. DAILY TIMES (1990) 1 NWLR part 724 page 7 at pages 30 – 37 paragraphs E-A. Submitted further that the inference drawn by the learned trial Judge is not clear in the case of a Plaintiff whom the Defendant at page 143 said he has never met.
By reason of the foregoing, and the failure of the Respondent to prove his entitlement to a declaration of title or right to possession. Respondent is not entitled to any damages in the circumstances. Learned silk urged the Court to resolve issue five in favour of the Appellant and allow the appeal.
Learned Counsel for the Respondent submitted that the learned trial Judge was right in awarding aggravated damages against the Appellant because the Appellant knew right from the onset that the land was not his and inspite of this knowledge, he still proceeded to forcefully take the land from the Respondent. He referred to the evidence of PW3 at page 100 lines 24-25 of the record where he says that:
”There was evidence of general disturbance on the land”
At page 101 lines 1-2 he stated further:
“the defendant reported to the Police, I was invited to the station” and at 102 lines 22-23, he testified thus:
“a person in possession has the right to resist any disturbance on his land”
Learned Counsel for the Respondent went further to submit that the above evidence of the Appellant corroborates the evidence of DW2 who testified that:
“since 2001 when the Plaintiff sent thugs to the land, he stayed away, we farmed on the land, we planted yams cassava e.t.c. I was beaten on the land and our crops were destroyed. We reported at the Station, the thugs were charged to Court —”
He also referred to the evidence of the Respondent as DW6 at page 141 lines 26-29 of the record vide exhibit J which was duly certified. Submitted that the learned trial Judge was therefore right in arriving at his conclusion at page 237 lines 4-19 of the record that the Respondent is entitled to aggravated damages as a result of the Respondent’s conduct. Learned Counsel for the Respondent urged the Court to resolve this issue against the Appellant.
An award of damages is always at the discretion of the Court and the discretion must be exercised judicially and judiciously. Therefore in awarding damages, a trial Court must make its own assessment of the quantum of such damages in the light of evidence adduced and not base its award on speculative claim and scanty facts. See ABIARA VS. REG. T.M.C.M. (2007) 11 NWLR PART 1025 AT 280 AND GARI VS. SERAFINA (NIG.) LTD (2008) 2 NWLR PART 1070 AT PAGE 1.
From the evidence adduced, the fact of assaulting the Respondent’s wife and destruction of their crops by the thugs of the Appellant thereby taking laws into their hands are good justification for the award of aggravated damages against the Appellant. See WILLIAMS VS. DAILY TIMES supra referred to by learned Counsel to the parties respectively. I am therefore of the view and hold that issue five is resolved against the Appellant.
Finally, the appeal is devoid of merit and it is hereby dismissed. The judgment of the lower Court in suit no.1/452/2004 delivered on the 7th of May 2007 is hereby affirmed. N30,000.00 cost is awarded in favour of the Respondent.
ADZIRA GANA MSHELIA, J.C.A.: Having been privileged to read before now the lead Judgment of my learned brother, Fasanmi J.C.A. just delivered, I am in agreement with him that the appeal lacks substance and must perforce fail.
Accordingly, I too dismiss the appeal and abide by the consequential orders made in the lead Judgment, cost inclusive.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
Appearances
Babatunde Aiku (SAN) with Olusola SullymanFor Appellant
AND
O. Daniel with S. O. A. PopoolaFor Respondent
