CHRISTIAN N. OGBENNA & ORS v. CHIEF ZIK O. KANU & ORS
(2018)LCN/11920(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/OW/151/2013
RATIO
DAMAGES: DISTINGUISHING BETWEEN SPECIAL AND GENERAL DAMAGES
“The law is clear and settled regarding the distinction between special and general damages and it is that general damages (unlike special damages) is such as the law will presume to be the natural or probable consequence of the defendant’s act and as it arises by inference of law, it needs not be proved by evidence and may be averred generally. See the case of INCAR (NIG) LTD. V. BENSON TRANSPORT LTD(1975) LPELR 1512(SC). This is however not to say that a trial Court will be justified in simply awarding general damages without giving any reason as to how it arrived at what amounted to reasonable damage. See the case of ONWU V. NKA (1996) LPELR 2711 (SC). An award of general damages must be based upon evidence proffered at the trial and not on any other expediency. See the case of A-G FEDERATION V. AJIBOSE (1970) LPELR 608 (SC).” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
EVIDENCE: WAYS TO PROVE OWNERSHIP OF LAND
“It is also pertinent to state at this stage that though it is settled law that while ownership or title to land may be proved by any of these five methods, viz:
(a) by traditional evidence;
(b) by production of documents of title, which are duly authenticated;
(c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it;
(d) by acts of long possession and enjoyment of the land; and
(e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute;
It is equally clear that the above five methods deal with the means by which title to land can be proved in the Court of law. That they have nothing to do with the mode of acquisition of title to land which may be by:
(a) first settlement on the land and deforestation of the virgin land;
(b) conquest during tribal wars;
(c) gift,
(d) grant customary
(e) sale,
(f) inheritance, etc,
See in this regard the case of AJIBOYE V. ISHOLA (2006) LPELR 301 (SC), (2006) 13 NWLR (Pt. 998) 628.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND
“Hence, in a case for declaration of title to land, it is incumbent that before a plaintiff can succeed, the Court must be satisfied as to: –
(i) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise and; (ii) the evidence establishing title of the nature claimed. See the cases of ADESANYA V. ADERONMU (2000) 6 SCNJ. 242; and OKELOLA V. ADELEKE (2004) All FWLR. (Pt. 224) 1980.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. CHRISTIAN N. OGBENNA
2. CHUKWUMA OGBENNA
3. ULONNAM OGBENNA
4. OCHIABUTO OGBENNA
(For themselves and as representing members of Jeremiah Ogbenna family, Umuihe Ohokobe Mbaocha Ndume Ibeku) Appellant(s)
AND
1. CHIEF ZIK O. KANU
2. BARRISTER ORGMORE E. KANU
3. BARRISTER AUGUSTO UWADI KANU
(For themselves and as representing members of
William Ezeigbo Family Umuihie Ohokobe Mbaocha Ndume Ibeku) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 26/9/2012 by the Abia State High Court holden in the Aba Judicial Division presided over by Hon. T.U. Uzokwe (hereafter to be simply referred to as ‘the lower Court’ and ‘learned trial Judge’ respectively).
The writ of summons by which the action was instituted is on pages 1 – 3 of the record. Therein, the ‘claim’ and ‘particulars of claim’ of the Respondents as the initiator of the case read thus: –
‘Plaintiffs claim jointly and severally against the defendants as follows: –
i. A Declaration that the plaintiffs are entitled to the statutory right of occupancy to the piece or parcel of land known as and called ‘AMA OLUA’ situate at Umuihie Ohokobe Mbaocha Ndume Ibeku, Umuahia North Local Government Area whose annual rental value is not less than N5 (five naira) within the jurisdiction of this honourable Court.
ii. An Order directing the defendants, their servants and or agents to stop constructing concrete rooms on the said piece or parcel of land till the determination of this suit.
iii. An Order of perpetual injunction restraining the defendants, their servants, agents, and or privies from in any way interfering with the said piece or parcel of land.
PARTICULARS OF CLAIM
1. The plaintiffs and defendants are natives of Ohokobe Mbaocha Ndume Ibeku, Umuahia North Local Government Area of Abia State and they are all farmers except the 2nd plaintiff who is State Counsel with the Ministry of Justice Umuahia Abia State.
2. The piece or parcel of land the subject of this suit is called ‘AMAOLUO’ situate at Ohokobe Mbaocha Ndume Ibeku, within the jurisdiction of this honourable Court. The plaintiffs are in possession of the said land.
3(i). The plaintiffs’ father who was very friendly with the father of the defendants granted a portion of the above piece or parcel of land to him for his residential building and the said father of the plaintiffs used the other portion of the land for his other purposes.
3(ii). In time and as years progressed defendants’ father build on the land while plaintiffs’ father built his cocoa store houses and the remaining premises for his cocoa business which business was for a long time run by the defendants’ father for plaintiffs’ father.
4. Sometime later the defendants’ father requested plaintiffs’ father for small portion of land within the said ‘Ama Oluo’ for a temporary thatch building for his church called Abosso Apostolic and this was granted by the plaintiffs’ father. Both this grant and the earlier grant of portions of this land for residential building provoked the members of the families of Umumbiwe and Umuonuoha whose fathers jointly made a gift inter vivos of Amuoluo land to the plaintiffs’ father. In both the plaintiffs’ father pacified them.
5. Later the father of the defendants began to make encroachments on other parts of the land and soon attempted to lay claim on the land which was used for church after the church had vacated the land as was agreed between the father of the plaintiffs and the defendants. The father of the defendants took advantage of the long and protracted sickness of the plaintiffs’ father William Ezeigbo Kanu.
However the wife of the said William Ezeigbo Kanu challenged and resist (sic) Jeremiah Okwuegbulem Ogbenna in his bid that owing to the condition of her husband and the fact that her children were in schools she was advised to soft pedal. Soon Jeremiah Okwuegbulem Ogbenna within two weeks built a building in Amaoluo land beside the area granted to him by William Ezeigbo Kanu. Soon after William Ezeigbo Kanu died.
6. Years after the part of land not built was again encroached upon by the children of Jeremiah O. Ogbenna and this was resisted, they were written against their acts but members of Umuihie family intervened and warned them to apologise to the plaintiffs’ family with drinks, kola and meat and warned them never to further trespass into the remaining land. They did present the items as advised and peace was restored.
7. After some years the defendants closed up the gate to the premises and opened another one in the space not allowed them and began using it as their entrance. They have been warned severally but they would not budge rather they prefer threats to the plaintiffs.
8. The plaintiffs have also complained to the families of Umumbiwe and Umuonuoha and they have severally warned the defendants and even wrote denying that the plaintiffs ever gave them any land at all i.e. denying that the plaintiffs are their landlords.
9. The defendants are hell bent on continuing the building they are erecting there on the land in dispute and unless they are restrained they will not stop building on the land.
10. Whereof the plaintiffs being damnified in the premises claim against the defendants jointly and severally as follows ? (and in this regard re- produced the relief re-produced hereinbefore)?.
On pages 63 – 85 of the record is the statement of defence filed by the Appellants in response to the particulars of claim of the Respondents as re-produced hereinbefore. The statement of defence was accompanied by the written statements on oath of the witnesses the Appellants intended to field at the trial of the case. In the process, the Appellants admitted paragraph 2 of the particulars of claim to the extent that the land the subject matter of the case (called the land in dispute) is known as and called ‘Ama Oluo’ and that it is situate at Ohokobe Mbaocha Ndume Ibeku.
The Appellants denied that the father of the Respondents ever granted any portion of the land in dispute to their (Appellants’ father) for any purpose. It is also the stance of the Appellants that the father of the Respondents never had any nexus whatsoever to the land in dispute. That the father of the Respondents never owned nor used any portion of the land in dispute for his cocoa business or for any other purpose. With specific reference to paragraph 3(ii) of the particulars of claim, the Appellants averred that the land in dispute was originally the property of Ogbonna Oluo of Umuijah compound of Ohokobe Mbaocha Ndume Ibeku and went further to narrate the traditional history of the said land and how their father (Appellants’ father) procured a grant of the land in dispute from the Umuihie Okonko society (of which the plaintiffs’ father was the secretary) for him (i.e. Appellants’ father) to use as his residential land.
Having concluded the statement of defence by denying the entitlement of the Respondents to the reliefs which they claimed in their particulars of claim and having also incorporated by reference the averments which they made in the statement of defence as well as having averred that the Respondents participated actively in the sharing of the landed property of their father (Appellants? father) amongst his children and which included the land in dispute, the Appellants counter-claimed against the Respondents as follows: –
”1. A declaration that the defendants are entitled to the statutory certificate of occupancy over and concerning the AMA OLUA land being the land in dispute which is situate in Ohokobe Mbaocha Ndume Ibeku, Umuahia North Local Government Area and which is well known to the parties.
2. An order of perpetual injunction permanently restraining the Plaintiffs, their privies, agents, and workmen from interfering with the land in dispute.
3. The sum of N10,000.00.00 (Ten Million Naira only) special and general damages by the plaintiffs to the Defendants for trespass, harassment and general inconvenience and intrusion into the user of the land in dispute.”
The Respondents later filed a statement of claim in the case and the purport of their case therein was no different from that disclosed by the particulars of their claim re- produced hereinbefore. However, in the said process, they now pleaded as it were, a more detailed traditional history of the land which they claimed in their action as well as how their father (Respondents’ father) through whom they (Respondents) came to own the said land came to own it in the first place. In the said process, the Respondents also claimed as set out hereunder against the Appellants: –
1. A declaration that the plaintiffs are entitled to the Statutory Right of Occupancy to the piece or parcel of land known as and called ‘AMA OLUA’ situate at Umuihie Ohokobe Mbaocha Ndume Ibeku, Umuahia North Local Government Area whose annual rental value is not less than N5.00(Five Naira) within the jurisdiction of this honourable Court.
2. The sum of N2,000,000.00 being general damages for trespass on the Claimant’s said land in the possession of the plaintiffs.
3. An order directing the defendants, their servants and or agents to stop constructing concrete rooms on the said piece or parcel of land till the determination of this suit.
4. An order directing the defendants to remove any structure on the land and other materials deposited on the said land in dispute without the consent of the plaintiffs.
5. An order of perpetual injunction restraining the defendants, their servants, agents, and or privies from in any way interfering with the said piece or parcel of land.
Suffice, it to say that the Respondents subsequently not only filed an amended statement but that all manner of further or other pleadings recognised in law, were filed by the parties. The Respondents called 7 witnesses and tendered Exhibits in the proof of their case. In the same vein, the Appellants called 4 witnesses and tendered Exhibits in the proof of their case. The judgment of the lower Court in the case spans pages 747 – 807 of the record. The lower Court in the judgment not only engaged in an extensive review of the testimonies of the witnesses that were called by the parties but it also captured therein the fact that a visit to the locus in quo was undertaken in the case. Having also disclosed that it had ”carefully considered the evidence adduced on both sides” and also ”equally perused the exhibits and the brilliant addresses of the parties”, the lower Court formulated the pertinent issues for determination in the case to be as follows: –
(1) Whether the Claimants have proved their claim by traditional evidence of their root of title to the land in dispute based on their claim that the land in dispute was granted their late father by the ‘Umuonuoha’ and ‘Umumbiwe’ family. Or whether the Defendants have proved better title and/or advanced more credible evidence as to their own claim in their counter claim.
(2) Whether the Claimants have made out a case of trespass against the Defendants.
(3) Whether the Defendants have proved their root of title by traditional evidence including the native law and custom by which the Okonko Umuihie (Society) allegedly became a beneficial owner of ‘Ama Olua’.
(4) Whether the Claimants are entitled to perpetual injunction.
In resolving the issues, the lower Court stated thus: –
”With regard to issue (sic) (1) and (2) I shall start by saying that in actions of this nature, the Courts have laid down five ways of proving ownership of land. See the case of MRS. OBODEKE NNUBIA V. HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, RIVERS STATE (2009) 40 N.S.C.Q. L.R. page 90 at page 95 where the Supreme Court clearly held that a party can prove title to a piece of land in any of the following ways:-
(1) By Traditional evidence.
(2) By production of documents of title duly authenticated and executed.
(3) By various acts of ownership over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner.
(4) By acts of long possession and enjoyment of the land.
(5) Proof of probable that the owner of such connected or adjacent land would in addition be the owner of the land.
The Claimants have in their pleadings and evidence particularly that of P.W.7 stated how their ancestor named Ajunwata funded (sic: founded) the land by means of deforestation of the land including the particular land now in dispute in this Suit. How the land went from Ajunwata to Okezie, (then Ledo and Uwalaka, the two sons of Okezie) who inherited the land ‘Ama Olua’ and shared it. Both had their sons. To Ledo’s son Mbiwe was inherited Ledo’s share of the land to Mbiwe’s sons namely Uwaga, Onwuchekwa, Ekwelonu and Nwachukwu. That they all exercised right of ownership by farming this land. Then Nwachukwu (Kanu) son of Uwaga Mbiwe and the surviving sons of Mbiwe namely Onwuchekwa, Ekwelonu and Nwachukwu that jointly with the sons of Onuoha and Ovuakpukpo son of Ukehanonu Onuoha and Umekwe (son of Onuoha) that gave the Ama Olua land to the Claimant’s father William Ezeigbo Kanu and so the land Ama Olua including the particular part in dispute as verged Red in Claimants amended Survey Plan (Exhibit K) devolved on the Claimants from their late father William Ezeigbo Kanu.
On the other hand the Defendants are contending that the Claimants’ history of the land in dispute is false. That the land in dispute has never been owned at any point in time by anybody from Claimants’ family of Umumbiwe Ohokobe Ndume. That there has never been anybody named ‘Ajunwata or ‘Ledo’ in Ohokobe. That the story of Ajunwata or Ledo was manufactured by the Claimants for the purpose of this Suit.
They traced their own version of the history of the land to Ogbonna Olua of Umuijah, Umuihie Ohokobe, Ndume Ibeku. That the land was founded by Olua Chukwu, the father of Ogbonna Olua who farmed it and that at his death, his son Ogbonna Olua inherited it and also farmed it. That however Ogbonna Olua had a serious misunderstanding with his kinsmen of Umuijah Ohokobe who accused him of being arrogant and using abusive words on them. As a result they summoned him before the Umuihie Okonko who looked into the case and imposed a fine of 12 goats on Ogbonna Olua, two of which was to be for the entire Umuihie Okonko while one goat each was to be for each of the 10 members of Umuijah Okonko who were allegedly insulted by Ogbonna Olua. That when he failed to produce the goats within 3 days given to him to do so, the Umuihie Okonko seized his ‘Ama Olua’ land. That the leaders of the Umuihie Okonko then shared portions of the Ama Olua land to themselves. That the land in dispute was then granted their father Jeremiah Ogbonna by the Umuihie Okonko.
Having stated the history of the land as stated by each side, I shall now go ahead to determine which of the parties in actual fact proved this history of the said land. In doing so I shall have to determine which evidence is credible.
The Claimants traditional history of the land is supported by C.W.5 (Oleka Nzeako) and C.W.6 (Godwin Wey Ukehanonu). The other witnesses to wit:- C.W.1, C.W.2, C.W.3 also confirmed the Claimants long possession and use of the land, the presence of Claimant’s father’s cocoa plantation and houses for his cocoa plantation workers on the land. C.W.2 said that he moulded blocks and packed for the 1stClaimant on this land in the 1980’s and 1990’s which was then a farm bush and which he cleared for the purposes of moulding the blocks. That he was managing William Kanu’s cocoa plantation from around 1950, 1953 and 1954.
That Chukwuma Ogbonna of the Defendants was the son of his own sister. C.W.3 also corroborated the Claimants story of William Kanu’s cocoa plantation on this land. He said that he was Manager at that plantation and he went on to give the names of other Managers. That he himself worked on that cocoa plantation for 8 consecutive years from 1972 to 1980. C.W.4 also confirmed Claimants story about the cocoa plantation. That William Kanu was farming cocoa on this land and had put up building for his workers and had no dispute with anybody over that land. That the Defendants live on the portion of the Ama Olua land which is not in dispute. That it is indeed William Kanu (father of Claimants) who owned the land in dispute.
C.W.5 of the Umuonuoha family confirmed that the land in dispute was donated perpetually to William Kanu by members of Claimants Umumbiwe family and his own Umuonuoha family. That he knew when Eze Ogbonna trespassed Claimant’s land and was warned and asked to appease them. That he also knew when 1st Claimant’s blocks were moulded and packed on the land in dispute. That he knew when Chukwuma Ogbonna (2nd Defendant) later asked for space for entertaining his guests during the celebration of his Kinghthood (sic: Knighthood) and Claimants obliged him but that later Chukwuma and the other Defendants entered the land in dispute, destroyed 1st Claimant’s blocks and threatened to kill him in his presence and went ahead to start erecting concrete rooms which they used to block the entrance of the land his family gave to William Kanu. That the 2 families that donated the land then wrote to the Defendants warning them to stop. That he also knew when the 1st Claimant planted ‘Omu’ on the land when Eze Ogbonna trespassed and the Umuihie family settled the dispute.
C.W.6 also confirmed that around 1955 the Umumbiwe and Umuonuoha families gave the land in dispute to William Kanu, thereby confirming William Kanu?s root of title, he also confirmed that William Kanu later gave a portion of that land (not in dispute) to his friend Jeremiah Ogbonna (the father of the Defendants). He also confirmed that workers in that cocoa plantation including Jeremiah Ogbonna lived in the mud house there. He equally confirmed that William Kanu took ill in the nineteen sixties and remained ill till the early nineteen seventies which he dired (sic). That it was while he was ill and his wife had eye problems, and his children (the Claimants were young and in school) that Jeremiah Ogbonna encroached into this land.
That William Kanu’s sick wife tried to stop them and that she continued to farm this land until she died. That this land in dispute was temporary given to Jeremiah Ogbonna for his Abosso Church when Jeremiah requested for that favour from William Kanu and that later Jeremiah removed the said Church to another site. He also confirmed that he knew about Eze Ogbonna’s trespass and Chukwuma’s destruction of 1st Claimant’s blocks packed on the land in dispute. When 1st Claimant allowed him to use the space where he packed the blocks for his Knighthood celebration and then later he and his brothers then started claiming the land. He also confirmed that his families also wrote Exhibit ‘K’ warning the Defendants to stop erecting the rooms and closing the entrance into that land given to Claimant’s father by his family but that the Defendants preferred war and replied their letter surprisingly claiming the land.
He also confirmed that the families of Umumbiwe and Umuonuoha who granted Claimant’s father this land in dispute are from the same ancestor – Ajunwata who deforested the Ama Olua land within which the land in dispute is situate.
C.W.6 – a boundary witness of Ukohelonu’s family of Umuonuoha did testify that their lands share boundary with the land of Marchus Ogbonna’s land thereby confirming that C.W.7’s evidence that Marcus’s land lies between Barrister A.U. Kanu’s land land (sic) and the waterway or ‘Onumiri.’
The Defendant’s witness (D.W.1) also confirmed that. D.W.1 under cross examination stated that he remembered that the father of the Claimants had cocoa plantation and after the cocoa plantation follows Marcus land and then the ‘Onumiri’. That he could remember that when they were little boys in the fifties and sixties they used to pluck cocoa from William Kanu’s plantation. It is perpetinent (sic: pertinent) to note that William Kanu died in 1874 (sic) and for D.W.1 to have gone there to pluck cocoa in the 1950ties or 1960ties, it meant that the cocoa plantation could not have been purchased from Marcus Ogbonna in 1995 over twenty to thirty years after D.W.1 had plucked cocoa from the cocoa plantation of Claimants? father adjacent to the Ama Olua land.
D.W.1 also confirmed that the cocoa plantation where Barrister A.U. Kanu’s house is now situate is adjacent to Ama Olua land and also that Nzeako a member of the descendants of Ajunwata lineage owns land adjacent to the Ama Olua land. D.W.1 equally confirmed that Nwachukwu (Barrister Rex Chikezies (sic) grandfather) also of Ajunwata’s descendants owns land adjacent to the land in dispute and also that Ekwelonu’s family of Mbiwe family own land adjacent to the land in dispute. See his evidence under cross examination.
It is important to note at this point that where the evidence of a witness who is called by a party supports the case of his opponent, that evidence serves as a solemn admission in favour of the opponent. See the cases of … and also Section 46 of the Evidence Act with regard to adjacency.
The position of the law is that a party to a suit is entitled to lead evidence through his own witnesses or by extracting evidence through his own witnesses or by extracting evidence in line with his pleadings from the adverse parties witness during cross examination.
See the cases, Also evidence elicited during cross-examination is as valid and authentic as evidence given during examination in chief.
Consequently evidence elicited under cross examination is admissible provided it is relevant to the fact in issue.
It is pertinent to note that the Claimant’s case is that the area of land verged ‘green’ in Exhibit K was donated to their father by the Umumbiwe and Umuonuoha families. But the land for which they are seeking declaration is the particular land in dispute which is verged ‘Red’ and is within the larger land verged ‘green’. In effect the declaration is for the smaller parcel of land which forms part of the larger parcel of the Ama Olua land given to William Kanu. I am of the view that where a Claimant claiming a declaration of title to land succeeds in proving the boundaries and title to a smaller parcel of such land, he would be entitled to a declaration of title in respect of such smaller parcel of land indispute whose title and boundaries he has proved with certainty.
As I have earlier stated the Claimant’s claim is also supported by reliance on Section 46 of the Evidence Act having regard to the adjacency of virtually the other surrounding or connecting parcels of land of the members of Mbiwe and Onuoha families who donated the land to William Kanu ? the Claimants (sic) father. A close look at all the boundary lands and compounds adjacent to the land show that no member of Umuijah family of the Defendants so called donors has any land there. More importantly no descendant of Ogbonna Olua has any land there and the Defendants did not plead so. Again the names of the ten men were never stated.
This bring me again to the evidence of D.W.1 who said he does not know the boundary of the Ama Olua land and does not know whether the Ama Olua land shares boundary with the land in dispute. This D.W.1 went on to contradict the evidence of the Defendants who said that the Okonko gave this land to them after seizing it from Ogbonna Olua by stating categorically that it was the Ekpe Society to which his father belonged that gave the land to the Defendant’s father.
In other words he is saying that the Defendants at that root of title is false (sic). Again while D.W.1 said that he has never seen a fence round the Ama Olua land, the D.W.2 said that Jeremiah Ogbonna fenced the land. The said D.W.1 also went on to contradict the Defendants when he said that the whole Ama Oluo land is in dispute. He also contradicted the Defendants when he said that it was Jeremiah Ogbonna (Defendant’s father) who deforested the land in dispute and built on it. In other words while the Defendants are saying that the land was granted them by the Okonko Umuihie, D.W.1 is saying that it was granted them by the Ekpe Society and D.W.2 is saying that the Defendant’s father Jeremiah deforested the land.
This D.W.2 later admitted that he did not even know the boundaries of this Ama Olua land. D.W.3 also said that he did not know the Ama Olua land. Surprongly (sic: surprisingly) he went on to say that there is only one Okonko in Ohokobe. This seem to contradict Defendant’s story that there is an Okonko at the village level to be prescise (sic: precise) the Umuihie Okonko whom they said granted them the land in dispute. It also confirms the Claimants’ story that there is no Umuihie Okonko. D.W.3 also went on to confirm that the Abosso Church was not built within Jeremiah Ogbonna’s land but outside it. So obviously the Defendant’s claim that it was not Claimants’ father that allowed their father Jeremiah to establish the Church temporary (sic) on Claimants father’s land is false.
It is however D.W.4?s (1st Defendant’s) evidence that the land occupied by the said Church is an open place now and at the visit to the locus in quo that was identified a part of the particular piece of land in dispute. The said D.W.4 could not prove that the entire Ama Olua land in dispute is bounded almost by lands of the Defendants or their relations.
Again D.W.4 made a huge mistake when he said that what he owns today descends from his forefathers because the Defendants claim in their counter claim is that the Ama Olua land was granted their father Jeremiah (sic) the Umuihie Okonko Society. He however admitted that he was living somewhere else adjacent to the Ama Olua land with his father, Jeremiah Ogbonna, before they moved into the Ama Olua land to build. He said that he would not know whether members of his Abosso Church requested for that portion of land where they built their Church, from William Kanu but one wonders if he should not know that vital fact when the Defendants’ story is that it was not Claimant?s father that allowed the Church on that land. He also said that the 10 men insulted by Olua were not given any share of the land seized.
So who granted his father the land.
He again said that seized property cannot be sold by the person that seized it. So how did the Umuihie Okonko grant the seized Ama Olua land to his father. D.W.4 again went on to say that Ama Olua was the Okonko communal land as at the time it was given to his father but the Defendants story is that the Umuihie Okonko seized and shared the land. He said that he agreed with John Amafule’s testimony. He admitted that even in the nineteen fifties his father was still working with U.A.C. He admitted that he received the warning letter of the Claimants but went on to say that his Lawyers reply was not authored by him.
On the issue of possession and trespass to the land in dispute, (1) from the evidence of C.W.1, C.W.2, C.W.3, C.W.4, C.W.5, C.W.6 and C.W.7, it is clear that the Claimants were in possession of the said land in dispute. From their uncontradicted evidence the Claimants’ father as far back as the fifties, as acts of possession was using the Ama Olua land for his cocoa business as confirmed by C.W.4, C.W.5 and C.W.6. Exhibit C tendered without any objection shows that Claimant’s father gave Defendant’s father 1150 cocoa seedlings to keep behind his residence (that is the nursery site at Ama Olua).
The said Exhibit C is dated 21/4/1955 and was issued by Defendant’s father to Claimant’s father for the said cocoa seedling he asked him to keep at the back of his house for him. This Exhibit C supports the Claimants Claim and like the Supreme Court pointed out in the case of KIMDEY V. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 N.W.L.R.L(sic) (PT.77) Page 473 …
The position of the law is that when documentary evidence support oral testimony, such oral testimony becomes more credible. This is so because Exhibits land more credence to the oral evidence of the Appellant.
C.W.2 also testified to the effect that he cleared this land and moulded blocks thereon for the 1st Claimant over a long period of time or as often as 1st Claimant could supply cement, but was not resisted by any of the Defendants. It is in evidence that when the Defendants later trespassed the land, the Claimants wrote Exhibit (sic) ‘C’ and ‘M’ to them and in the Defendant’s reply Exhibit (sic) ‘N’ and ’34’ they did not deny their acts of trespass but claimed that the land belong to them.
With regard to issue (3) as to the Defendant’s root of title as claimed in their Counter Claim, according to the Defendant’s land in dispute which belonged to Olua was given to their father by the Umuihie Okonko after the seized Owo lands for insulting them. To be presecise (sic: precise) in paragraph 5 of their statement of defence, they said ‘the land in dispute was granted to his late father of the Defendants in 1940 by elders of Umuihie Okonko who had bona fide possession of the land in dispute according to the native law and custom of Umuihie Ohokobe Ndume.’
The case of the parties was fought on evidence of traditional history and in this case the Courts have held that the trial Court has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case by testing it against the other evidence and where witnesses of one party contradict each other on the traditional history relied upon, the trial Court will be right to reject the traditional history.
A careful perusal of the evidence of the Defendants as to their root of title shows that their story in rebulous (sic: nebulous) inconsistent and conflicting. With regard to the grant of the land and it’s (sic) dounder (sic) or deforestor, I have already highlighted, some of the conflicts, for example according to the Defendants and their witnesses especially D.W.1, the gift of the said ‘Ama Olua’ was made at one time by the elders of Umuihie Okonko to Defendant’s father in 1940, at another time by the ‘Ekpe Society.’
With regard to the deforester (founder) the Defendants. D.W.4 with one breath said that the founder was Olua Chukwu, but under cross-examination, he said that the said Olua Chukwu inherited the land from his father and the same land was again inherited by Ogbonna Olua from his father. The D.W.4 still under cross-examination said that when the children of Ohokobe shared their father’s property that it was Ihie that got the very share of the land within which the land in dispute situates. I am afraid that this inconsistent and conflicting evidence cannot be regarded as credible or cogent by any prudent Court. It appears to me to be a bundle of lies and contradiction. I am satisfied that the Defendants have failed to discharge the onus of proving the funder (sic: founder) and his title nor have they traced their root of title adequately.
In the case of MOGAJI V. CADBURY NIGERIA LTD. 2 N.W.L.R. (PT. 7139, (sic) the Court held that ‘where in a claim for declaration of title, the Appellant and his witnesses gave conflicting history of the Appellants root of title, such root of title would be trusted as unreliable’.
See also the case of MOGAJI & ORS. V. CADBURY FRU (EXPORT) LTD (19985) 2 N.W.L.R. (PT. 7393) (sic) where it was held that:-
”a party pleads and traces his root of title in an action for a declaration of title to a particular person or source and where this averment as in the present case, is challenged, that party to succeed, as a Plaintiff in the Suit must not only establish his title to such land he must also satisfy the Court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title. Where this has been challenged and concentrate only on his own title to such land as he would not have acquired a valid title to such land if, in fact, his grantor at all material times had no title thereto.”
The Defendants have failed to establish their title to the land and the validity of Ogbonna Olua’s title that is to say how Ogbonna Olua derived his title to the Ama Olua land and how his predecessors got the land in the first place.
Root of title pleaded by each side is of paramount importance in any case. The respective claim to possession of the land in dispute is dependent on each parties’ traditional history. Where there is a counter claim, each party is a Claimant and therefore has the burden to prove the case, relying on the strength of his case and not on this weakness of the opponents. See the case of AGWU V. IBENYE (1998) 62 L.R.C.N. page 4810.
From their pleadings and evidence in Court the Defendants relied firstly on traditional histort (sic).
With regard to the acquisition of the ‘Ama Olua’ LAND by Olua children whom they claimed to be the founder or deforester of the land and secondly they also relied on the traditional history of a subsequent surreptions (sic: surreptitious) seizure from Ogbonna Olua of the said land by Umuihie Okonko which as bonafide owner in possession, according to the native law and custom granted the land to their father Jeremiah Ogbonna.
But the Defendants have failed to call any witness from the Community where such repuguant (sic: repugnant) custom is accepted to testify for the mere assertion of this customary law insufficient. See the Supreme Court case of SONEKAN V. GOV. OGUN STATE (1995) 26 L.R.C.N. page 113 where it was held that:-
”In cases of customary law, it is desoreable (sic: desirable) that a person other than the person assertion it should testify in support thereof. Since native law and Custom must be strictly proved, it is therefore, unsafe to accept the statement of the only person asserting the existence of a custom as conclusive.”
Moreover the D.W.4 testified that when a property is seized that the property cannot be disposed of by the person who seized it, and yet he deposed on Oath and started in his pleadings that Okonko seized and granted the seized land to his father. He (sic: his) is (sic) assertion that seized property cannot be disposed off settles this matter.
It is necessary to note that while the Claimants have proved adjacency or proximate on their lands to the Ama Olua land which is surrounded by the Claimants? family land and their relations of Umuonuoha and Mbiwe whom the D.W.4 stated in evidence were of the same blood, the Defendants could not.
I am satisfied that neither the ‘Okonko Umuihie’, ‘Umuihie family’ nor the ‘Ekpe Societ (sic)’ acquired this title to the land by any recognized or legally known ways to be able to vest their purported conflicting gifts or the said Ama Olua land to the father of the Defendants for the Rule is that ‘Neme datoquiod non nabet (sic)’ ‘No one gives what he does not have’. The father of the Defendants (Counter-Claimants) can therefore never have what his ‘donors’ themselves did not posses (sic: possess).
The Defendants also lied as to whom deforested the land. They claimed that Olua Chukwu did so. But D.W.2 conrdicted (sic: contradicted) them by testifying under cross-examination that the land was deforested by Jeremiah the father of the Defendants.
I am afraid that the Defendants have woefully failed to prove their Counter Claim or dislodge the Claimants claim of title to the land in dispute. Their said counter claim is accordingly dismissed. On the other hand the Claimants have discharged the onus on them on the preponderance of evidence. By Traditional history, by proof of possession of connected or adjacent or adjacent (sic) land as was seen during the visit to the locus in quo. They have also called boundary witnesses and granters, successors in title and members of the grantors’ families to testify and they all gave cogent and credible evidence.
Surfice (sic) it to say that the Claimants have proved their claim on the preponderance of evidence.
I therefore hereby enter Judgment for the Claimants in the following terms:-
(A) It is hereby DECLARED that the Claimants are entitled to the Statutory Right of Occupancy to the piece or parcel of land known as and called ‘AMA OLUA’ situate at Umuihie Ohokobe Mbaocha Ndume Ibeku, Umuahia North Local Government Area, whose annual rental value is not less than N5.00 (Five Naira) within the jurisdiction of this Court.
(B) The Defendants are therefore ordered to pay N1,000,000.00 being general damages for trespass on the Claimants’ said land in the possession of (sic).
(C) Since the Defendants boldly continued constructing the concrete rooms seen during the visit to the locus inquo on the said piece of land during the pendency of this Suit, they (sic) said Defendants are hereby ORDERED to remove the said structures on the land and other materials deposited on the said land in dispute without the consent of the Claimants forthwith.
(D) The Defendants are hereby ORDERED to restrain themselves, their servants, agents are or privies from in any way interfering with the said piece or parcel of land.
(E) The Claimants are also entitled to the cost of this suit.
Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the said Court on 7/12/2012 a notice of appeal bearing the same date. The process contains four grounds of appeal with copious particulars.
The grounds of appeal shorn of their respective particulars read thus: –
GROUNDS OF APPEAL
Ground 1
The learned trial Judge erred in law in accepting the evidence of traditional history of claimants, which was conflicting, contradictory and inconclusive against evidence of traditional history of the Defendants.
Ground 2
The learned trial Judge erred in law when she made ambiguous and omnibus declaration of title over “Ama Olua Land? in favour of the Claimants.
Ground 3
The learned trial Judge erred in law in giving judgment to the Respondents (Claimants) when their evidence as to the identity of the land in dispute is at variance with Exhibit “K” tendered by them.
Ground 4
The learned trial Judge erred in law by not exercising its discretion in awarding general damages judicially and judiciously.
The reliefs which the Appellants seek from this Court as contained in the notice of appeal is for this Court ”to set aside the judgment of the trial Judge and enter judgment in favour of theAppellants against the main suit in the lower Court.”
The appeal was entertained on 16/4/2018 with learned leading counsel, Ben Ukandu, in urging the Court to allow the appeal, adopting and relying on the Appellants’ brief of argument dated 10/10/2014 and filed on same date pursuant to the Order of this Court made on 24/9/2014.
In the same vein, learned leading counsel Chief A.U. Kanu in urging the Court to dismiss the appeal, adopted and relied on the brief of argument of the Respondents dated 4/11/2014 and filed on 6/11/2014.
The issues formulated for the determination of the appeal in the brief of argument of the Appellants read thus: –
a) Whether the learned trial Judge was right in accepting the evidence of traditional history of the claimants/counter defendants, where their traditional history is inconclusive and witnesses called by the claimants/counter-defendants contradict each other on their root of title also. (This is distilled from ground 1).
b) Whether the learned trial Judge was not in error in giving judgment over the Amaolua land in dispute to the claimants/counter- defendants/respondents where the claimants/counter- defendants/respondents failed to prove with certainty the piece of land to which their claim relate (this is distilled from grounds 2 &3).
c) Whether or not the learned trial Judge was prudent in pegging the award of general damages for trespass at the sum of N1,000.000.00 (N1.m) given the peculiar nature of the claims of both parties (this is distilled from ground 4).
Likewise, the Respondents in their brief of argument formulated three issues for the determination of the appeal. The said issues which were not tied to the grounds of appeal read thus: –
i. Whether the learned trial Judge was in error in accepting the evidence of the traditional history of root of title of the Claimants/Respondents and their witnesses which were conclusive and uncontradictory against the evidence of traditional history of root of title of the Defendants/Counter-Claimants/Appellants.
ii. Whether the learned trial Judge was not right in giving judgment in favour of the Claimants/Respondents over the piece or parcel of land in dispute which Claimants/Respondents properly defined, delineated and described in their plan and proved same with certainty on preponderance of evidence.
iii. Whether the learned trial Judge was not considerate and prudent when she awarded the sum of N1,000,000 (One Million Naira) general damages for trespass against the Defendants/Counter-Claimants/Appellants.
Given the failure of the Respondents to tie the issues they have formulated to the grounds of appeal of the Appellants, I consider it expedient in the circumstance, to resolve the appeal on the issues as formulated by the Appellants.
APPELLANTS’ ISSUE 1:
The stance of the Appellants on this issue in the main is that the lower Court was wrong in accepting the evidence of tradition of the Respondents as the said evidence was inconclusive and as the witnesses the Respondents called also contradicted each other on the Respondents’ root of title.
The Appellants having stated to the effect that the portion of the Respondents’ land in dispute was indicated in Exhibit “K” as the area verged ”red”, while the said land in dispute is also shown in their (Appellants’) Exhibit 28, submitted to the effect that the Respondents in their pleading and evidence of tradition in respect of the land in dispute, did not restrict themselves to the portion of land in dispute verged “Red” in Exhibit “K”; but included the area verged “green”. That the Respondents did not distinguish between, or demarcate the “land in dispute” and “other lands around there”, which they pleaded, “become known as Amaolu Olaa or Amaolua as time passed on”.
It is the stance of the Appellants that as no evidence whatsoever was led by the Respondents in line with their pleadingsin paragraphs 1(1) and 3(a) of the amended statement of claim, it followed that the Respondents who pleaded that the land in dispute is a smallerportion of a largerarea of land, (and having also pleaded that the Ajuwata was the first deforester of the land in dispute, which is verged “Red” in Exhibit “K”), have equally shown that the said Ajuwata was not the only deforester of the whole of the larger area of land shown and verged “green” in Exhibit “K” tendered by them (Respondents).
That in the circumstances, there was no way the lower Court could have rightly ascertained the demarcation, dimension or extent of the smaller area of land in dispute verged “red”, which was said to have been deforested by Ajuwata and the demarcation, dimension or extent of the “other lands around there”, verged ”green” in Exhibit ”K” which “become known as Amaolua Olaa or Amaolua, as the time passed on”. That the deforester of ”the other lands around there”’ was therefore unknown, in the absence of credible evidence to that effect, and which evidence is missing in the instant case. It is also the stance of the Appellants that the Respondents also could not trace or show the specific portions of the land in dispute, which they pleaded were inherited by the individual descendants of the Ajuwata who enjoyed same peacefully having inherited same from their fathers and exercised, as their fathers did, acts of customary ownership and possession.
In other words the Appellants submitted that the Respondents ought to have shown by their pleading and evidence each, or specific portion of, or the part of land in dispute, which they pleaded to have been inherited by each descendants of Ajunwata, whose names were mentioned and to whom the land in dispute was purportedly shared out. That the Respondents also ought to have shown continuous devolution of each portion of the ”entire individually owned share by inheritance as pleaded”, up to the time each of the ”individually owned portion of the land in dispute” was granted to William Ezeigbo Kanu, the Respondents’ father, as a gift in 1935.
The Appellants submitted that in the instant case the Respondents failed woefully to sustain with credible evidence the continuous devolution of any specific portions of land, individually owned by inheritance by persons mentioned to be descendants of Ajunwata. That worst still, the Respondents did not plead nor lead evidence to show from whom, how or from where, Nwakamanu or Kanu, (Mbiwe’s grandson) got the land which he was said to have given to William Ezeigbo Kanu, the Respondents/ fatherin 1935 as a gift. The Appellants submitted to the effect that the unresolved tracing of the root of title of Nwakamanu or Kanu to any part of the land in dispute and which the pleading of the Respondent did not show, or resolve, has made the evidence of tradition adduced by the Respondent not reliable and inconclusive. Many cases considered to be relevant were cited by the Appellants in aid of their various stances.
Though the Respondents as said hereinbefore did not tie the issues which they formulated for the determination of the appeal to the grounds of appeal of the Appellants, they would appear to have responded to Appellants’ issue 1 above, under their own issue 1. The stance of the Respondents on the issue in the main regarding their root of title, is that the lower Court was perfectly right in accepting the evidence of tradition adduced by them as being credible, cogent, not contradictory and conclusive. That there was no contradiction in their (Respondents’) evidence as contended by the Appellants.
Dwelling on the stance of the Appellants on Exhibit “K”, the Respondents said, it was made abundantly clear in the case they set up in their pleadings and as well as by evidence, that the entire land given to William Ezeigbo Kanu by the Umumbiwe and Umuonuoha families is verged “green” in Exhibit “K”. That it was out of this land that William Ezeigbo Kanu, their (Respondents?) father gave part thereof to his friend Jeremiah Ogbenna, the late father of the Appellants. That it was the encroachments by way of trespassing into the portion verged “Red” which was not given to the father of Appellants and which the said Appellants came to take by force and through use of threats to their (Respondents’) lives, that gave rise to this action. It is the stance of the Respondents that the portion of the Amaoluo land given to late Jeremiah Okwegbulam Ogbenna, the father of the Appellants is verged “Blue” in Exhibit “K”.
It is also the stance of the Respondents that evidence of tradition regarding their root of title was pleaded in details in paragraphs 3(b)(i) and 4(a) of the amended statement of claim and that they adduced cogent evidence in respect of the same. That the 1941 land gift which the Respondents have laid so much emphasis on, has nothing to do with the Amaoluo land in dispute. That the 1941 land gift, was in respect of a different subject – training of one Jato Ekwelonu of Mbiwe family. That Exhibit ”R” which relates to the gift is clear on this and also sets out the names of the donors.
That Exhibit ‘R’ has nothing to do with the gift in 1935 to William Kanu by the children of Mbiwe and Onuoha otherwise called Umuonuoha and Umumbiwe. That the land in dispute is part of Amaoluo and not the lands in the gift of 1941 in Exhibit “R” and the evidence in respect of the root of title adduced by them (Respondents) was for Amaoluo only. It is the view of the Respondents that the Appellants are obviously confused and want to deceive the Court by reference to the gift in Exhibit “R”. Cases considered relevant were cited by the Respondents in support of their respective contentions.
The position of the law is settled to the effect that a plaintiff or claimant in an action tried on pleadings, nominates the issue or issues for determination in the case. See the cases of NKUMA V. ODILI (2006) LPELR 2047 (SC), (2006) 6 NWLR (Pt. 977) 587; and ODOGWU V.NWAJEI (2013) LPELR 21030 (CA) amongst many others. The Respondents having regard to the case set up in their pleadings and the reliefs claimed against the Appellants (and which have been re-produced hereinbefore) in my considered view, therefore glaringly put their title to the land which they claim as theirs (i.e. the land in dispute and ”the land in dispute proper”) in issue. I have made reference to the term ”land in dispute proper” as the Respondents themselves used the term in paragraph 1(iii) of the amended statement of claim wherein they averred thus: –
”The land in dispute proper is verged ”Red” and it is within the ”Amaoluo Land” of the Plaintiffs verged ”Green” in the amended survey plan of the plaintiffs. The land is more particularly described and delineated in the litigation survey plan No. HAS/ABD32/2008 dated 4th Nov. 2008 made at the instance of the plaintiffs who showed the land in dispute and the boundaries and its features thereon to the ”Registered Surveyor” H.C. Nwagboso who produced the plan for litigation. The land is more particularly bounded in detail as follows: on the one part by Ama (compound square of Umuonuoha and Mbiwe family). Uzo Odikpiri, across the Uzo Odikpiri by compound of descendants of Mbiwe, land of nzeako (sic) family, land granted by William Kanu father of Plaintiffs to Jeremiah Ogbenna.
The position of the law as earlier stated is that it is the plaintiff who nominates the issues for determination in a case tried on pleadings; and as it is also another position of the law that the dismissal of a plaintiff’s claim for a declaration of title does not automatically confirm title to the same land in dispute in the defendant (see ANWOYI V. SHODEKE (2006) LPELR 502 (SC), (2006) 13 NWLR (Pt. 996) 34), the Appellants in the instant case, against the backdrop of their unveiled or unconcealed claim to the ownership of the land in dispute (and which having regard to the Respondents’ pleadings is what compelled the said Respondents to institute the instant case), in my considered view rightly counter claimed in the said Respondents’ action, amongst other reliefs for a claim that also put their own title to the land in dispute, in issue.
The Respondents and the Appellants respectively having not set up a case that they were the original owners of the land in dispute in that they founded or first settled on the same, but that it came to be owned by them through acts flowing as they were, from the original owners of the said land, therefore were enjoined by law to prove the title of their respective roots of title to the land in dispute. And it is obvious from the pleadings of the parties contained in the record that the means or method by which both the Respondents and the Appellants respectively set out to prove the title or ownership to the land in dispute by their respective roots of title, is by evidence of tradition.
It is also pertinent to state at this stage that though it is settled law that while ownership or title to land may be proved by any of these five methods, viz:
(a) by traditional evidence;
(b) by production of documents of title, which are duly authenticated;
(c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it;
(d) by acts of long possession and enjoyment of the land; and
(e) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute;
It is equally clear that the above five methods deal with the means by which title to land can be proved in the Court of law.
That they have nothing to do with the mode of acquisition of title to land which may be by:
(a) first settlement on the land and deforestation of the virgin land;
(b) conquest during tribal wars;
(c) gift,
(d) grant customary
(e) sale,
(f) inheritance, etc, etc.?
See in this regard the case of AJIBOYE V. ISHOLA (2006) LPELR 301 (SC), (2006) 13 NWLR (Pt. 998) 628.
Hence, in a case for declaration of title to land, it is incumbent that before a plaintiff can succeed, the Court must be satisfied as to: –
(i) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise and;
(ii) the evidence establishing title of the nature claimed. See the cases of ADESANYA V. ADERONMU (2000) 6 SCNJ. 242; and OKELOLA V. ADELEKE (2004) All FWLR. (Pt. 224) 1980.
In my considered view, it would therefore appear incontrovertible that the Respondents in the instant case had to plead conclusive or proper evidence of tradition of their root of title to the land in dispute (including the land in dispute proper) and the grant of the same by them (i.e. root(s) of title) as a gift and adduce credible or cogent evidence in line with their pleading in respect of that aspect of their case.
Similarly, the Appellants (who by virtue of their counter-claim are plaintiffs/claimants therein) and who claim, the land in dispute by way of inheritance, needed to plead conclusive or proper evidence of tradition regarding the land in dispute and how they came to inherit the same and give credible and cogent evidence in respect of that aspect of their case.
Furthermore, since both the Respondents and the Appellants glaringly relied on evidence of tradition regarding the land in dispute in the proof of the title of their respective roots of title to the ownership to the said land, it was incumbent on the lower Court to first determine which of the stories is more plausible or probable by reference to all surrounding facts and circumstances. It is only after the histories offered by both sides are placed side by side and weighed and when they are found to be equally plausible or when there is difficulty in resolving which is correct that the question of recent acts of ownership shall become relevant. See the case of OGUN V. AKINYELU (2004) 11-12 SC 4.
Having regard to the arguments/submissions of the parties that have been highlighted hereinbefore, and the pleadings of the parties in the record which I have painstakingly read, I am in no doubt that the Respondents guided by the authorities regarding what constitutes proper or adequate pleading of evidence of tradition or traditional history to wit: who founded the land; how the land came to be founded; and how the land devolved over the years on the claimant (see NKADO V. OBIANO (1997) LPELR 2043 (SC)) not only clearly pleaded the evidence of tradition of their root of title in respect of the land in dispute (and the land otherwise described as ”land in dispute proper” and verged ‘RED’ in Exhibit ‘K’), but did so properly and adequately given the averments in paragraphs 1(i),(ii),(iii)(a) – (d) and 3(a),(b) and (b)(i) of the amended statement of claim.
Indeed, the Respondents having regard to their arguments/submissions that have been highlighted hereinbefore and relying on Exhibit ”R” in my considered view, have clearly shown that the Appellants in weaving their arguments in respect of their issue 1, around the ”1935” transaction as shown in paragraph 4(a) of the amended statement of claim, were simply capitalising on nothing more than a typographical error.
This is against the backdrop of the fact that the documentary evidence tendered in the proof of the facts averred in the said paragraph 4(a), eloquently went to show that the event involved therein occurred in 1941. It should be noted that there is no challenge whatsoever to the admissibility of the said Exhibit ‘R’ in the instant appeal.
The first of the issues formulated for the determination of the case by the lower Court as has been re-produced hereinbefore (and which in my considered view adequately covers Appellants’ issue 1 under consideration) reads: ”Whether the Claimants have proved their claim by traditional evidence of their root of title to the land in dispute based on their claim that the land in dispute was granted their late father by the ‘Umuonuoha’ and ‘Umumbiwe’ family. Or whether the Defendants have proved better title and/or advanced more credible evidence as to their own claim in their counter claim.
This issue in my considered view would appear to be in recognition of the position of the law as stated by Nnamani, JSC; in the case of ARE V. IPAYE (1990) LPELR 541 (SC). His lordship said thus: –
”The true situation, in my view, is that the trial Judge has the duty to find which of the two histories is more probable by testing it against the other evidence in the case. It is also when he can neither find any of the two histories probable or conclusive that he would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession and ownership. These principles appear to me discernible from the cases. In Mogaji v Cadbury (Nigeria) Ltd.”
I have hereinbefore before stated that the lower Court engaged in a copious or extensive review of the evidence adduced by the witnesses called by the parties in its judgment. Indeed, the review of the evidence of the witnesses spans pages 748 -792 of the record. I have also re-produced before now, the evaluation of evidence undertaken by the lower Court and the reasonings that informed the various findings it made in the case particularly in respect of its findings to the effect that the traditional history placed before it by the Appellants was not credible or reliable in the least (and I must observe that I do not see any ground of appeal challenging this particular finding), and accepting the traditional history of the Respondents as probable.
I am of the considered view that the Appellants in ranking up imaginary or abstract criticisms(in that they do not in any respect expose any conflict in the evidence of tradition adduced by the Respondents) against the finding of the lower Court that the traditional evidence of the Respondents in the instant case was plausible, have comfortably lost sight of the decision in the case of AKANBI V. SALAWU (2003) LPELR ? 316 (SC); where the Supreme Court per Uwaifo, JSC; said thus: –
”It is now well established that a plaintiff who relies in his pleading and evidence on traditional history for his root of title to land must ensure that he pleads that history properly and lead evidence on it. The history may succeed on its merits either standing along (sic) when there is no competing story or where such story breaks down for being unreliable in nature or owing to its own internal conflict. The traditional history of the plaintiff would accordingly be accepted on the basis of its strength and cogency:
Where however the traditional histories of both parties are plausible but conflict one with the otherso that it will not be open to the Court simply to prefer one to the other, then the situation calls for the application of the rule in Kojo II v. Bonsie (1957) 1 WLR 1223, which is that preference of one history to the other as being more would depend on recent acts of possession shown by the parties that the Court will need to consider to make up its mind.”
The lower Court glaringly found the traditional history of the Appellants to be unreliable and full of internal conflict as it were. In the circumstances, there was no competing plausible story to preclude the lower Court from acting on the plausible traditional history of the Respondents which did not have any internal conflict as the Appellants would want this Court to believe. In other words the finding of the lower Court in respect of the traditional history of the Respondents has not been dislodged by any of the arguments/submissions of the Appellants under their issue 1.
Flowing from all that has been said therefore, is that Appellants’ issue 1 must be and is hereby resolved against them.
APPELLANTS’ ISSUE 2:
The stance of the Appellants on this issue in the main, is that the lower Court was wrong to have given the Respondents judgment over the Amaolua land in dispute when they (Respondents) failed to prove with certainty the piece of land to which their claim relate.
Having diligently read the Appellants’ brief of argument, I am of the considered view that the Appellants without expressly stating so clearly adopted a substantial part of their arguments/submissions in respect of their issue 1, as highlighted hereinbefore in relation to the issue now under consideration. Having catalogued the gaps as conceived by them (Appellants) in the evidence of some of the Respondents’ witnesses (CWs 2 and 5 inparticular) in relation to the Respondents’ pleading vis-a-vis Exhibit ‘K’, the Appellants submitted that Respondents’ Exhibit ‘K’ established that they (Appellants) occupy other lands around the area verged ‘red’ in Exhibit K’.
It is also the stance of the Appellants that the pleadings of the Respondents regarding the land in dispute is imprecise, ambiguous and vague and reference was made to paragraph 1(ii) and (iii) of the amended statement of claim as well as the oral testimony of CW2, describing the location of the land in dispute which they (Appellants) claim was at variance with Exhibit “K”.
It is the stance of the Appellants to the effect that this in itself rendered the evidence in respect of the land in dispute unreliable as it did not describe with the required degree of accuracy the description of the land in dispute as pleaded by the Respondents. The Appellants submitted that it is trite that the mere mentioning of the area is not enough; that the description and extent of the boundaries must be proved with exactitude. Stating that it was for the plaintiff in an action claiming declaration of title to land to establish with certainty and precision the identity of the area of land he claims, the Appellants submitted that the Respondents were saddled with the responsibility of proving by evidence and otherwise; as well as also describing with such degree of accuracy and aptitude that the identity of the area of land in respect of which they seek its title is in fact not in any doubt.
That the test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land. The Appellants submitted that the lower Court was therefore in error in giving judgment to the Respondents over Ama Olua land, when their evidence as to the identity of the land in dispute is imprecise, ambiguous, inaccurate and not certain. This, is more so as in claims for declaration and injunction, the area of the land in dispute must be properly identified in view of the order for injunction, which cannot be granted in respect of an undefined area. Cases considered as relevant were cited by the Appellants in support of their various submissions.
The position of the Respondents as should be expected under their issue 2, was contrary to that of the Appellants as highlighted above. In other words, it is the position of the Respondents that the lower Court was right in giving judgment in their favour as they (Respondents) proved with certainty and correctly the specific piece and or portion of the Amaoluo land in dispute. That they did this by Exhibit “K” which clearly defined the particular parcel of land in dispute as being verged “Red” therein. It is the stance of the Respondents that the fact that the very land in dispute and other piece or parcels of lands around it not in dispute are known as and called Amaoluo did not create any uncertainty as Exhibit “K” clearly delineates the land in dispute. That a look at the pleadings of the parties also shows that both parties are not disputing that the name of the land in dispute is Amaoluo land. That there is also nothing uncertain about the traditional history of the root of title which they (Respondents) stated in paragraphs 3(a), 3(b) and 3(b)(i) respectively of the amended statement of claim.
Again, that there is no doubt with respect to the area verged “Green” and called Amaoluo land which the Umumbiwe and Umuonuoha who are descendants of Ajunwata the founder and deforester of the Amaoluo gave their son Chief William Kanu in 1935. That Amaoluo land does not start and end with the area verged “Green” as the descendants of Mbiwe and Onuoha that is Umumbiwe and Umuonuoha family occupy other lands contiguous to the land verged “Green”. It is the stance of the Respondents to the effect that the position of the Appellants in respect of Exhibit ”K”, is baseless because the said plan clearly and more particularly described and delineated the land in dispute. The Respondents submitted that the identity of the land in dispute was not only known to the parties, but that it is settled law that where the identity of land in dispute is known by parties, the issue cannot be made an issue on appeal.
The Respondents having stated that the survey plans in this case were tendered by the consent of the parties, and that the settled position of the law is that where in a land matter two survey plans filed by the claimants and defendants are tendered by consent the need of producing a counter plan is defeated. That in such a situation, the defendants having consented to tendering of the claimant?s plan is taken to have waived any allegation that the plan was wrong or distorted. Hence, the plaintiff in such a case is not required to call a surveyor to prove all the features on the survey plan and the location and extent of the land in dispute and the only plan which the trial Court is obliged to consider is the plaintiffs’ plan and a case considered to be relevant was cited in aid.
I consider it pertinent to commence the resolution of the issue under consideration and as argued by the Appellants by first considering whether it is open to the Appellants to raise the issue regarding the imprecision or uncertainty of the land in dispute in the instant appeal. The Appellants having regard to their arguments/submissions on the issue have no doubt ”lashed on in the abstract” (and I have used these words most advisedly), the consistent position of the law as enunciated in many cases that the identity of the land in dispute in an action for declaration of title in respect of the said land must be proved with certainty by the plaintiff. See in this regard the case of AUTA V. IBE (2003) LPELR 640 (SC) wherein the Supreme Court per Musdapher, JSC; (as he then was) said thus:
”Now, in action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached …The first duty of a plaintiff who comes to Court to claim a declaration of title is to establish to the Court clearly the area of land to which his claims relates. It is also trite that before a decree of declaration of title to land can be made, the land to which it is related must be identified with certainty. If the land cannot be properly ascertained, the plaintiff?s claim must fail. ”
See also amongst many others, the case of OGBU V. WOKOMA (2005) LPELR 2293 (SC).
”It has been said hereinbefore that in an action tried on pleadings, it is the plaintiff who nominates the issues for determination in the action. A fortiori, the same applies to a counter-claim inasmuch as a counter-claim even though an action tried in the action of the initiator of the main action, is by law, an independent action in which the defendant in the main action, is taken as or becomes the plaintiff.
In the instant case, the Respondents gave detailed and clear particulars of the land in dispute in their pleadings and also filed along with their amended statement of claim a survey plan in respect of the land in dispute with ”reference to plaintiffs plan”; and showing the area verged ”red” therein as the portion of the land in dispute on which the Appellants are alleged to have trespassed and which act of trespass the lower Court found the Respondents to have established. The Appellants it should be noted, consistently in their pleadings, loudly portrayed the fact that they know the land in dispute (which they laid claim to and confirmed their presence thereon as ”owner”) and they clearly did not dispute the location to be as described by the Respondents. In any event the clincher on the issue that the land in dispute is known to the Appellants and that they do not dispute its identity, is the counter-claim of the Appellants in which one of their reliefs is for a declaration of entitlement ”to the statutory certificate of occupancy over and concerning the Amaokuo land being the land in dispute .. and which is well known to the parties” and described in a survey plan which they duly tendered and was admitted as Exhibit 28 and which was never established by them (Appellants) to be in respect of any other parcel of land different from that in respect of which the Respondents seek a declaration of title as it were.
I cannot but say that it is clearly in realisation of the glaring fact that the identity of the land in dispute was never in doubt (or that parties were id idem thereon) having regard to their respective pleadings, that the lower Court never saw the need to have formulated any issue regarding the identity of the land in dispute as one of the four issues the said Court formulated for determination in the case and which issues have been re-produced hereinbefore and therefore never made a finding on the said issue. The non-formulation of any issue regarding the identity of the land in dispute, in my considered view is definitely consistent with the position of the law as enunciated by the Supreme Court in the case of ANYANWU V. UZOWUAKA (2009) LPELR 515 (SC) wherein Tabai, JSC; said thus: –
”Still on the Plaintiffs/Appellants’ claim for trespass and injunction. It was the submission of the Respondents that the land in dispute was undefined and uncertain and for which therefore the reliefs for trespass and injunction cannot lie. This argument was also submitted at the Court Below which was apparently persuaded by it.”
In NWOBODO EZEUDU & ORS v. ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said:
“The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
Now can the Defendants/Respondents be said to have made the identity of the land in dispute an issue in this case? Certainly not. It is clear from the pleadings that both parties know the land indispute.
Suffice, it to say that as: (i) the parties by their respective pleadings never put in issue the identity of the land in dispute; and (ii) the lower Court rightly did not make the issue of the identity of the land in dispute one of the issues for resolution in the determination of the case; and never made a finding on the issue; in my considered view, it therefore becomes obvious, that the issue in respect of the identity of the land in dispute as presented by the Appellants in their brief of argument (and which they ostensibly raised by ground 3 in the notice of appeal and argued together with ground 2 of the said grounds, under their issue 2), is glaringly a fresh issue which they could not have argued as of right, as they have done in the instant appeal.
The Respondents would appear to have said this much (albeit in too general terms as it would appear that they did not avert their mind that such an issue can be raised with the leave of this Court sought and obtained) when they said thus: –
”…It is settled law that where the identity of land in dispute is known by parties, it cannot be made an issue on Appeal.”
In any event, this aspect of Appellants’ issue 2 being one that goes against the settled position of the law regarding when the identity of land in dispute can be said to be in issue, in my considered view requires no further consideration.
The other aspect of Appellants’ issue 2 which is to the effect that the lower Court was in error in entering judgment for the Respondents in respect of the land in dispute as its identity is imprecise, ambiguous, inaccurate and uncertain, in my considered view must have been informed by a total or complete misapprehension of the position of the law in respect of survey plans; and status of evidence, particularly, documentary evidence that is not challenged at the time of its admission as an exhibit. The law in respect of survey plans is settled to the effect that, a good survey plan is such that mirrors all the features of the land as pleaded. Thus, a good survey plan should be in accord with the written description of the land in dispute as contained in the pleading that was filed in relation to it. See the cases of SALAMI V. OKE (1987) LPELR 2982 (SC); and AREMU V. ADETORO (2007) LPELR 546 (SC). See also the case of AKPAN V. OTONG (1996) LPELR 374 (SC) wherein the Supreme Court in dwelling on survey plans many years ago, stated thus: –
”…This is so because the purpose of a Survey Plan in a land matter is to identify the land a party is claiming with ascertainable boundaries. In the case of Arabe v. Asanlu (1980) 6SC 78 this Court had this to say-
“Although a Licensed Surveyor’s plan, if available, is the best proof of the boundaries of the land in dispute in an action for declaration of title, yet its absence need not occasion a dismissal of the action. What is important and necessary is that the land in dispute must be ascertained with “definitive certainty.”
As a matter of fact, where a piece of land in dispute is not unascertainable e.g. where all the parties to a case are agreed as to its area or location of boundaries on the ground, it is not necessary for them to have filed a plan.
CompareEzeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 208.
Where a party to a land dispute has produced and tendered the Survey Plan showing the area he is claiming with certainty and ascertainable boundaries, a party need not call a Surveyor to testify before the Court can attach credibility to such a survey plan. In the case of Alhaji Adebola Olakunle v. Chief Timothy Omobare (1982) 5 SC 25 at 38, 39; 45, 46 this Court held as follows:
(1) In an action for declaration of title to land, the plan of the land showing the area in dispute between the parties to the action must be presented.
(2) If the plan cannot be presented, a Surveyor or other persons should be called to identify the land in dispute.
(3) This plan must be produced by the plaintiff to the action.
(4) The plan must have been prepared by a Licensed Surveyor.
(5) The plan must show clearly the boundaries and dimensions of the land and must be served on the defendant.
In other words, it may be said that a plan of a land is not sine qua non but some description are necessary to make a disputed land ascertainable.
The above authorities go to show that where a valid Survey Plan has been duly admitted in evidence such as Exhibit “A” of the appellants in the case in hand, the Court can consider same and rely on it without a surveyor having to testify. Also where a plan has been admitted in evidence, the surveyor who made the plan, if called to testify, is only going to give evidence as to the contents of the Survey Plan which he produced and nothing more. This will amount to a witness giving evidence as to the contents of the document before the Court contrary to the provision ofSection 76 of Evidence Act which provides that-
“All facts, except the contents of documents may be proved by oral evidence.”
The Appellants have clearly not impugned the validity of Exhibit ”K”; the admission in evidence of which, they consented and which document cannot be said to be one of the documents which is by law ab initio admissible in evidence. The Appellants therefore having not successfully challenged, its credibility at the trial, the said Exhibit ”K” (and the details shown therein) was sufficiently incorporated into the proceedings and the lower Court in my considered view, in the circumstances, rightly predicated the declaration and injunction it granted in the case of the Respondents, on the evidence in the said document. In other words, as the details in Exhibit ”K” were part and parcel of the evidence before the lower Court, the stance of the Appellants to the effect that the lower Court granted the Respondents a declaration of title and injunction over the land in dispute, the identity of which is imprecise, ambiguous, inaccurate and uncertain, is hollow.
Indeed, I am also of the considered view, that even though the Respondents did not expressly state in their reliefs that the land in dispute is as described and shown in Exhibit ”K” and setting out the plan number and date (like the Appellants did in the first of the reliefs in their counter-claim), the lower Court cannot be said to have granted the Respondents a declaration and injunction in respect of a piece of land the identity of which is imprecise, ambiguous, inaccurate and uncertain, inasmuch as there was sufficient evidence placed before the said Court (which also visited the locus in quo to see things by itself) in respect of their (Respondents’) survey plan which they duly tendered (as they were bound to do having pleaded same) and which the lower Court apparently found credible.
Flowing from all that has been said before now in respect of Appellants’ issue 2, is that the said issue must be and is hereby resolved against them.
APPELLANTS’ ISSUE 3:
The stance of the Appellants on this issue is to the effect that the sum of N1 million awarded the Respondents by the lower Court is outrageous, ridiculously high and has resulted in injustice to them (Appellants). In furtherance of the stance, the Appellants submitted to the effect that the lower Court acted in disregard of the usual caution or prudence in awarding the sum of N1 million as general damages for trespass and this Court was urged to interfere with the outrageous and ridiculously high award. This is particularly so as Respondents pleaded and gave evidence that the annual rental value of the land in dispute is not less than N5. It is the stance of the Appellants that having regard to the Respondents’ pleading, they (Appellants) were customary tenants, and as the purported customary tenancy has not been forfeited, the lower Court ought to have exercised caution or prudence in its award of damages.
The Appellants also submitted to the effect that there was no justification for the award of N1 million as the Respondents did not prove that they suffered any loss or damage, and as the lower Court in its judgment did not indicate how it arrived at the sum it awarded as general damages for trespass. That it is apparent that the lower Court did not show that any of the known factors usually considered by Courts in the award of damages were ever invoked to guide the said Court in the award of damages in the instant case.
The Respondents dealt with the award of general damages by the lower Court under their issue 3. It is the stance of the Respondents in the main, that the lower Court was considerate and prudent in awarding N1 million only against the Appellants as general damages for their trespass. They submitted that the stance of the Appellants that the annual rental value of the land in dispute is not less than N5 has got nothing to do with the general damages. That in paragraph 14(ii) of the amended statement of claim the sum of N2,000,000 was claimed as general damages for the trespass by the Appellants on their (Respondents’) land which they have possession of. That the Appellants themselves claimed general damages of N9,556,000.00 and special damages of N444,000.00 in their counter-claim.
Therefore, that when one looks at the peculiar nature of the claims of both parties, the award of N1 million against the Appellants who violently broke into the land in the possession of the owners of the land (i.e. Respondents) is not excessive. This is more so as they (Respondents) also pleaded in their amended statement of claim that the Appellants having broken into the land in dispute, destroyed blocks; closed the old entrance to their (Appellants) compound and created another one on the land in dispute. That the Appellants while the matter was in the Court, constructed rooms by force on the land and rented them out and that they (Appellants) also denied them (Respondents) of the use of their land.
It is also the stance of the Respondents to the effect that as the instant case was instituted in 2007 and judgment therein was delivered 26/9/2012, the award made by the lower Court cannot be said to be excessive in view of the depreciating value of the Naira as well as the socio-economic circumstances. Having also set out the principles guiding interference by an appellate Court with the award of damages by a trial Court, the Respondent submitted to the effect that the instant case was not one in which this Court ought to interfere with the sum of general damages awarded them.
I deliberately highlighted the submissions of the parties in respect of the award of N1 million made by the lower Court to the Respondents because I am of the considered view that it is glaring from the submissions that the Appellants given the facts that were proved by evidence before the lower Court, are clearly labouring under a serious misapprehension of settled positions of the law in respect of award of general damages in a proven case of tort (which trespass to land undoubtedly is); and when this Court as an appellate Court can properly interfere with such an award when made.
The law is clear and settled regarding the distinction between special and general damages and it is that general damages (unlike special damages) is such as the law will presume to be the natural or probable consequence of the defendant’s act and as it arises by inference of law, it needs not be proved by evidence and may be averred generally. See the case of INCAR (NIG) LTD. V. BENSON TRANSPORT LTD(1975) LPELR 1512(SC). This is however not to say that a trial Court will be justified in simply awarding general damages without giving any reason as to how it arrived at what amounted to reasonable damage. See the case of ONWU V. NKA (1996) LPELR 2711 (SC). An award of general damages must be based upon evidence proffered at the trial and not on any other expediency. See the case of A-G FEDERATION V. AJIBOSE (1970) LPELR 608 (SC).
The Respondents in the instant case did not leave the award they wanted as general damages for the trespass committed on the land in dispute by the Appellants to be determined solely by invocation that they are entitled to the said damages as they have established that the said Appellants violated their (Respondents) right to possession of the land in dispute and which in my considered view would have qualified them to the award of nominal damages only. They pleaded copiously the acts of trespass committed by the Appellants on and in relation to the land in dispute and which included the construction of structures on the land in dispute by the Appellants and it is obvious from the judgment of the lower Court that the said Court not only found the acts of trespass committed by the Appellants to have been established, but even confirmed under relief 3 that it granted, that ”the Defendants (i.e. Appellants) boldly continued constructing the concrete rooms seen during the visit to the locus in quo on the said land during the pendency of this suit”.
In recent times, this very Court had cause to deal with the issue of adequacy or appropriateness of the quantum of general damages awarded in a case of trespass to land. This was in the case of ENYIOKO V.ONYEMA (2017) LPELR 42623(CA). The case was decided on 30th day of June, 2017. It relates to the judgment of the High Court of Abia State delivered on 2/3/2012 in a case instituted or commenced by a writ of summons and other processes filed on 23/2/2010 and in which the said High Court in its decision awarded in favour of the Plaintiffs therein, amongst others, ”the sum of N1,000,000.00 for trespass”.
Dwelling on the issue regarding the propriety of the award in question my learned brother, Oredola, JCA; said thus: –
”Also, the learned counsel for the respondents argued, that the sum of N1,000.000.00 (One Million Naira) awarded as general damages by the Lower Court against N5,000.000.00 (Five Million Naira) being claimed by the respondents, is even too small for the gravity of the wanton trespass on the land by the Appellants.”
Trespass generally relates to unlawful interference with a persons (sic) possession. That is, it constitutes a wrongful or unpermitted interference with a persons (sic) right of possession of a land or other related subject matter. For an act to constitute trespass, it does not have to be heavy, as the slightest disturbance to a persons (sic) possession by another who cannot show a better title can successfully ground a claim in trespass.
It is elementary law that a plaintiff who has successfully established his action for trespass to land is entitled to damages, whether or not he proved that he suffered any damage or loss whatsoever. That is, trespass is actionable per se, with or without proof of actual or any damage.
Also, the quantum of damages to be awarded to a plaintiff in respect of trespass to land under general damages is within the discretion of the trial Court.
The assessment for the sum awarded does not depend on any legal rules or established principles, but on the discretion of the trial Court. However, the said discretion is not totally unfettered, it is subject or limited by usual or common caution; prudence and remoteness of damages. See Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265.
In addition, an appellate Court is enjoined not to interfere with the award of damages made by a trial Court, except in the following instances among others:
1. Where the trial Court applied a wrong principle of law;
2. Where the trial Court acted in disregard of applicable principles of law;
3. Where the trial Court acted in misapprehension of facts;
4. Where the trial Court took into consideration irrelevant matters and disregarded relevant matters while handing down its award;
5. Where there is bound to exist or where injustice will result if the appellate Court fails to act;
6. Where the amount awarded is ridiculously low or excessively high that it must have been a wholly erroneous estimate of the damage.
The appellants in the instant case failed to bring their challenge or complaint against the award made by the Lower Court under any of the above stated circumstances. Thus, they have failed to convince or persuade this Court to interfere with the award of damages made by the Lower Court. I also wish to stress herein, that in the light of all the activities carried out by the appellants coupled with the loss and or trauma that may have been occasioned to the respondents, the award of N1,000.000.00 (One Million Naira) damages against the appellants cannot be regarded as excessive or likely result in any form of injustice. Thus, the said award is also affirmed by me. Therefore, this issue is also resolved in favour of the respondents.
True, it is that in the instant case, the lower court did not specifically set out its reason for the award of N1 million it made in favour of the Respondents, but as it is however apparent ex-facie the record before this Court that the lower Court had before it evidence that the Appellants boldly continued in their act of trespass to wit: continuing with the building of a structure on the land in dispute despite the pendency of the case, I do not find the lower Court to have made the award it made (and which it had the discretion to make), in violation of any principle of law in relation to general damages. Hence, I simply see no legal basis to honour as it were, the invitation of the Appellants that this Court should interfere with the award of N1 million general damages made in favour of the Respondents for the trespass the Appellants committed on the land in dispute in possession of the said Respondents for the reasons they articulated for this purpose in their brief of argument or for any other reason at all.
Flowing from all that has been said, is that Appellants? issue 3 must be and is hereby resolved against them.
In the final analysis, the instant appeal is clearly lacking in merit as all the issues formulated by the Appellants for its determination have been resolved against them. The appeal fails and is dismissed; while the judgment of the lower Court appealed against is upheld in its entirety.
Costs in the sum of N50,000.00 is awarded in favour of the Respondents and against the Appellants.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, A.O. LOKULO-SODIPE JCA, as eruditely expressed In the lead judgment just delivered.
I too dismiss the appeal and abide by the consequential orders in the judgment.
Appearances:
Ben Ukandu with him, G.C. Dim, 2nd Appellant is in Court.For Appellant(s)
Chief A.U. Kanu with him, O.K. KanuFor Respondent(s)
