DANZARIYA KURE & ANOR v. LADAN DIKAU
(2019)LCN/13676(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of July, 2019
CA/J/330/2018
JUSTICE
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. DANZARIYA KURE
2. ALAMIS KURE Appellant(s)
AND
LADAN DIKAU Respondent(s)
RATIO
THE STANDARD OF PROOF OF OWNERSHIP OF LAND
Now, it is settled that the standard of proof of ownership of land, like in other civil cases, is on the balance of probability: see Section 134 of the Evidence Act 2011 and Onwuama v. Ezeokoli (2002) 2 S.C. (PT 11) 76 @ 85. PER UGO, J.C.A.
WHETHER OR NOT WHERE THE PRECISE AMOUNT OF A PARTICULAR ITEM OR LOSS IS KNOWN, THE EXACT LOSS MUST BE PLEADED AS SPECIAL DAMAGES
For the law is that, where the precise amount of a particular item of loss is known or has become manifest before trial either because it has already occurred and has thus become crystallized or because it is measurable with complete and total accuracy, the exact loss must be pleaded as special damages and strictly proved: See Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (PT 658) 668 @ 694 (S.C.); Badmus v. Abegunde (1999) 7 SCNJ 96 @ 105, (1999) LPELR-705 (S.C.) p. 11. PER UGO, J.C.A.
WHETHER OR NOT GENERAL DAMAGES CAN BE SUBSTITUTED FOR SPECIAL DAMAGES WHERE A PLAINTIFF DOES NOT MAKE ANY CLAIM FOR IT
See Taylor v. Ogheneovo (2012) 13 NWLR (PT 1339) 524; Badmus v. Abegunde (1999) LPELR-705 (S.C.) p. 1112; Consolidated Breweries Ltd v. Aisowieren ( 2002) FWLR (PT 116) 959 @ 983 para E-F. In Badmus v. Abegunde (supra) the Supreme Court (Uwaifo, J.S.C.) after setting out the principles guiding the pleading and award of general and special damages and berating this Court for doing the right thing by setting aside the wrong award of special damages by a trial Court and then committing its own error by awarding general damages for the same loss, stated the correct position thus at p.13 LPELR:
So in no circumstances can general damages be properly substituted for special damages which a plaintiff has failed to prove, or even if he has led evidence on it, did not in fact make any claim for it: see West African Shipping Agency v. Kalla (1978) 3 S.C. 21 @ 32; (1978) 11 NSCC 144 @ 120. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This main issue here is whether the two farmlands known as Latenade and Kolokwanni located in Tal village of Biliri Local Government Area in Gombe State are the exclusive property of the Kure section of appellants of Fashi Kongtho family or common heritage of all the entire Fashi Kongtho family including Respondent, and if they are family property of all Fashi Kongtho family, whether respondent was entitled to be reimbursed for his litigation expenses in defending the said lands and whether he proved such expenses in the manner known to law.
The appellants, as plaintiffs, before the Gombe State High Court claimed from the Respondent:
1. A declaration that they (plaintiffs) on behalf of their brothers Abdullahi Kure, Allayidi Kure, Banga Kure and Ela Kure are the radical and beneficial owners of the farmlands situate at Kolokwanni and Latenade in Tal, Biliri Local Government Area of Gombe State and are therefore entitle to peaceful and quiet possession of the said lands.
2. Declaration that the defendants entry into the plaintiffs lands without their
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consent and authority constituted trespass.
3. Perpetual injunction restraining the defendant, his agents, privies, servants and any other person from trespassing on their land.
4. The sum of 10m as damages.
5. The cost of this litigation.
Their position was and still is that the said two farmlands were founded by their father Fadde who died childless; that upon Faddes old age, he gave the said farmlands to their father Kure, his nephew, Kure, according to them, being his only surviving close relative. They said the farmlands were inherited by them from their said father and has always been in their ownership and possession until a certain time when they were all away to the cities working when the defendant, their uncle (they concealed their relationship to him in their statement of claim, thus giving the impression that he was a total stranger) without their consent and authorization successfully sued P.W.2, Stephen Bilal, for trespass to the said lands and, upon their return to the village, insisted and actually prevented them from farming the said farmlands unless they reimbursed his litigation expenses. They added that he even
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went further, again without their consent, to lease the said farmlands to other persons hence their suit.
The Respondent on the other hand claims that the said farmlands were not founded by Fadde but by both parties common ancestor Fashi Kongtho; that Fashi Kongtho had four children including appellants grandfather Lamulong and his own father Dikau; that Fadde was merely Fashi Kongthos younger brother and it is in his capacity as the eldest member of the family he functioned in his lifetime over the said land as demanded by their custom; that two of Fashi Kongthos children, Nituwa and Turwa, died childless leaving only appellants grandfather and his father Dikau with children upon whom the land devolved; that the children of Lamulong and Dikau now constitute the two branches of the family and joint owners of the farmlands of their grandfather Fashi Kongtho now in dispute; that he (Respondent) is entitled to be reimbursed by appellants for his litigation expenses in protecting the farmlands from the trespass of P.W.2 when appellants father as head of the family and the only one older than him at the time refused
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and or neglected to do so because he was benefiting from the said trespass; that until he is reimbursed he has a right to prevent them from farming the said farmlands and that is all that he did. He thus also counterclaimed against appellants for:
1. A declaration that all the disputed farmlands including but not limited to Kolokwanni and Latenade were cleared by Fashi who is the ancestor of all the other members of the Lamulong and Dikau branches of the family and all have the right to inherit same including.
2. That Kure the defendants father who put Bilal (father of P.W.2) on the land had the responsibility to have recovered the land back for the family which he failed, therefore he, appellant/counter-claimant, who fought to have the family property back is entitled to a refund of the money he expended in litigation.
3. A declaration that the division of the Latenade farmland between the two main branches of the family i.e. Lamulong and Dikau as a result of which the plaintiffs became vested with various portions of the said land is still valid and subsisting as the plaintiffs cannot approbate and reprobate.
4. A declaration that
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the acts of the plaintiff forcefully entering upon the side given to Dikau family by destroying beacons and selling portions thereof to other people amount to trespass.
5. The sum of 10M only as general damages for the said acts of trespass against the plaintiffs jointly and severally.
6. An order of perpetual injunction against the plaintiffs, their servants, agents and privies restraining them from further trespassing into the said lands.
7. The cost of this action. (Italics mine)
The trial Judge in his judgment of 26th May 2017 found against appellants, dismissed their case and entered judgment for respondent, declaring that:
1. That all the disputed lands including but not limited to Kolokwanni and Latenade farms were cleared by Fashi who is the ancestor of all the members of the Lamulong and Dikau branches of the family and all have the same right to inherit them.
2. That the Respondent fought to have the family lands back through litigations and so is entitled to be reimbursed by other members of the family.
His Lordship, following his finding that Respondent was entitled to reimbursement by appellants for his
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litigation expenses in defending their familys common farmlands, awarded Respondent a 3rd relief of 1M as general damages, even as Respondents only claim for general damages was for trespass and not for litigation expenses reimbursement.
Appellants are dissatisfied by that judgment and have brought this Seven-Ground appeal, asking us to determine:
1. Whether from the facts on records it is correct to state that the land the farmlands in issue were cleared by Fashi as to be inherited by the entire family.
2. Whether the respondent as defendant discharged the burden on him of proving his counterclaim.
On issue 1, appellants, while conceding that they and Respondent are all grandchildren of Fashi Kongtho, argued that what was before the Court from their claim and respondents counterclaim was not whether there was such a family relationship between them but whether the farmlands in issue were cleared and founded by Fadde and inherited exclusively by their father Kure, or whether they were cleared and founded by Fashi Kongtho all parties common ancestor and so belonged to all his descendants. They
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submitted that they adduced sufficient evidence to prove their contention that the said lands were founded by Fadde and devolved exclusively on their father Kure so the trial judge was wrong in holding otherwise.
Respondent on his part argues that the decision of the lower Court that the disputed farmlands were family lands of all parties common cannot be faulted. He submitted that, given that both sides based their cases on traditional evidence which were conflicting the proper approach is to resolve them by subjecting them to recent acts of possession by the parties as stated in Kojo II v. Bonsie (1957) 1 W.L.R. 1223; that the evidence of acts of possession exercised on the disputed farmlands in recent times suggested that he was not a mere inter-meddler but part-owner of the said farmlands as the trial judge found.
RESOLUTION
Now, it is settled that the standard of proof of ownership of land, like in other civil cases, is on the balance of probability: see Section 134 of the Evidence Act 2011 and Onwuama v. Ezeokoli (2002) 2 S.C. (PT 11) 76 @ 85.
Here, whereas appellants claim that the disputed farmlands were not founded by their
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common grandfather Fashi but by Fadde, their uncle, who, according to them, in his lifetime gave them exclusively to their father Kure, the respondent claims it was founded by both parties common grandfather Fashi Kongtho and devolved on all his descendants including his branch of the family and not just appellants. In such circumstances the Kojo II v. Bonsie (1957) 1 W.L.R. 1223 test of subjecting both traditional histories to evidence of exercise of recent acts of possession applies. If that test is applied, it does not seem difficult to agree with the trial judge that the said farmlands were, on the balance of probability, founded by all parties ancestor Fashi Kongtho and jointly owned by all of them. That conclusion is inevitable even from the evidence of the appellants themselves. For instance, both appellants individually admitted, under cross-examination, that the Respondent started his litigations against Stephen Bilal (P.W.2) for trespass to Latenade farmland as far back as 1992 when their father Kure who was then the oldest person and head of Fashis descendants was alive, Kure by their admission having died only five years later
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in 1997. Second appellant further admitted that Respondent had been spending on the case for more than 10 years. It is common ground, too, that the cases between Respondent and Stephen (P.W.2) went through three Courts and ended in favour of Respondent. It has not been suggested by appellants that their father ever stopped or tried to stop Respondent from suing or continuing the said case against P.W.2. Their father Kure couldnt have simply stood by and allow a stranger fight his interest in a property. What is more, even 1st appellant in his testimony rather admitted that he contributed monies to reimburse Respondent for his litigation expenses (see p. 85 lines 7 & 8 of the records) – even as his brother, 2nd appellant, protests to high heavens that there was nothing of such, that they refused payment when Respondent demanded for it (p. 87 of the records). Interestingly, the same 2nd appellant also admitted that Respondent did the case with P.W.2 on behalf of their father Kure (last line of p. 87 of the records).
All that points to the high probability that the said farmlands belong not just to appellants and their late father Kure but to
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Respondent too and it was in recognition of that right that respondent took all the steps he took against P.W.2 to protect the family property, a right established in Sogunle v. Akerele (1967) NMLR 58 and reaffirmed in several other cases including Layinka v. Gegele (1993) 3 NWLR (PT 283) 518 at p. 530. Probability is always the surest path to truth and justice: Dibiamaka Ors. v. Osakwe & Ors (1989) 2 NSCC 253 @ 260 lines 46-50 (Oputa J.S.C.). That much even Section 167(1) of the Evidence Act 2011 recognizes and enjoins the Court to presume.
In summary, I have no hesitation agreeing with the lower Courts finding that the disputed farmlands are the joint property of all descendants of Fashi Kongtho and not just appellants. In the event, issue 1 of appellants is resolved against them.
On issue 2, appellants argued that the 1m (One Million Naira) general damages which the lower Court awarded Respondent as his litigation expenses was not justified. They argued, first, that Respondent did not claim any specific sum nor prove any certain amount he spent on the said litigation. They complained, too, that it is even contradictory for him to
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claim in one breath that he did not need any other family members authority to defend family land yet seek their contribution; that he cannot also properly admit giving out portions for rent to recoup litigation expenses and still seek compensation from them for the same litigation without stating how much he has realized from the said rents; that he did not also state how much is his own contribution as a co-beneficiary of the said lands. In the absence of all that, they submitted, the said expenses was not proved so it should be set aside.
In reply, Respondent first argued that appellants cannot question the said award of 1m general damages since it was common ground between parties that he actually spent money on his litigation with P.W.2. Besides, he added, even though the lower Court made a specific finding on the said award appellants did not specifically question it in their grounds of appeal so it remains inviolate. As for the argument that he did not plead and prove any specific amount as litigation expenses, he argued that it is only claims for special damage that require specific pleading and proof, not general damages which he
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submitted was what he claimed reimbursement of litigation expenses so his claim cannot fail simply because he did not specifically adduce evidence on how much he spent on all the litigations he went through. General damages, he went on, do not require special proof as they are implied by law and follow naturally once a wrong has been established. For this, he cited GFK Investment Nig. Ltd v. Nigeria Telecoms Plc (2009) 174 LRCN 1 @ 35; Cameroon Airlines v. Otutuizu (2011) 195 LRCN 198 @ 229, and Union Bank Nig. Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (PT 421) 558. He finally submitted that there being no dispute that he single-handedly fought litigations over the years to defend the interest of the family, he was entitled to be reimbursed so there is no justification for appellants call for this Court to interfere with that award.
RESOLUTION
I must first make the point that it is not correct as asserted by respondent that appellants did not in their notice and grounds of appeal challenge the lower Courts award to respondent of 1m as general damages for litigation expenses. They frontally challenged that award in
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Ground 5 of their grounds of appeal where they complained that:
The lower Court erred in law in affirming the counterclaim without proof.
The third Particular of Error in that ground goes on to state that:
Respondent did not discharge the burden of proving the damages awarded him.
And coming to that award, I must point out again that Respondents only claim for general damages, for which he claimed a specific sum of 10m, was for alleged acts of trespass by appellants in purportedly forcefully entering upon what he described as the side of land given to his Dikau section of the family to destroy beacons and selling portions of it. That much is clear from his Paragraph 21 (iv) and (v) where he claimed:
iv. A declaration that the acts of the plaintiff forcefully entering upon the side given to Dikau family by destroying beacons and selling portions thereof to other people amount to trespass.
v. The sum of 10m only as general damages for the said acts of trespass against the plaintiffs jointly and severally.
As against this claim for general damages, what he claimed for reimbursement of litigation
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expenses in sub-paragraph (ii) of the same Paragraph 21 of his counterclaim was simply:
(ii) That Kure the defendants father who put Bilal (father of P.W.2) on the land had the responsibility to have recovered the land back for the family which he failed, therefore he, appellant/counter-claimant, who fought to have the family property back is entitled to a refund of the money he expended in litigation.
There was no indication of the amount of money he spent on the said litigation let alone a breakdown (particulars) of how he arrived at whatever sum he was claiming for it. In fact he did not claim any amount of money as litigation expenses. And that is a big flaw in his claim.
At any rate, even if he had labeled his litigation expenses general damages as he now wrongly claims in argument, that would not have relieved him of the demands of the law that he specifically plead and strictly prove his said loss since it is capable of quantification and so to all intents and purposes an item of special damage: See Shell-BP Petroleum Development Co. of Nig. Ltd v. His Highness Pere Cole (1978) NSCC 96 @ 101, (1978) 3 S.C 128 @
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135-136 where the apex Court dealing with a similar wrong treatment by a trial Court of a quantifiable loss confirmed this, saying:
Although the claim of the respondents as set out in their writ of summons is unsatisfactory in that they did not specifically claim special damages, nevertheless, it is apparent from their pleadings and the evidence given at the trial as we indicated earlier on, that their claims were in damages for loss of income from fish, gravel and sand and for the damage done to their shrines. In our view the claims were in the nature of claims for special damages which must be pleaded and strictly proved. See Dumez (Nigeria) Ltd v. Patrick Nwaka Ogboli (1972) 1 N.L.R. 241 and West African Council v. Joseph Ceylon Koroye (1977) 2 S.C. 45.
In that respect, he has to also plead, and prove strictly, particulars, or breakdown, of how he arrived at whatever total figure is his litigation expenses. For the law is that, where the precise amount of a particular item of loss is known or has become manifest before trial either because it has already occurred and has thus become crystallized or because it is measurable with complete
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and total accuracy, the exact loss must be pleaded as special damages and strictly proved: See Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (PT 658) 668 @ 694 (S.C.); Badmus v. Abegunde (1999) 7 SCNJ 96 @ 105, (1999) LPELR-705 (S.C.) p. 11.
The consequence of respondents failure in that respect means that his claim for litigation expenses should have been rejected, for the Court is without power to make its own assessment using its own conceived parameters or turn it to general damages and award it as such as the trial Judge did in this case: see Taylor v. Ogheneovo (2012) 13 NWLR (PT 1339) 524; Badmus v. Abegunde (1999) LPELR-705 (S.C.) p. 1112; Consolidated Breweries Ltd v. Aisowieren ( 2002) FWLR (PT 116) 959 @ 983 para E-F. In Badmus v. Abegunde (supra) the Supreme Court (Uwaifo, J.S.C.) after setting out the principles guiding the pleading and award of general and special damages and berating this Court for doing the right thing by setting aside the wrong award of special damages by a trial Court and then committing its own error by awarding general damages for the same loss, stated the correct position thus at p.13
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LPELR:
So in no circumstances can general damages be properly substituted for special damages which a plaintiff has failed to prove, or even if he has led evidence on it, did not in fact make any claim for it: see West African Shipping Agency v. Kalla (1978) 3 S.C. 21 @ 32; (1978) 11 NSCC 144 @ 120.
The general damages in this case cannot stem from the mere fact of the very loss occasioned by the destruction of the house and store which by their nature lend themselves to quantification and assessment going by the evidence of cost of repair or replacement as the case may be: see Shell-BP Petroleum Development Company Co. of Nigeria Ltd v. His Highness Pere Cole (1978) 3 S.C 183 @ 192.
The trial judge thus erred when he decreed in his judgment that:
It is hereby declared that the defendant claimed (sic: having) fought to have the family lands back through litigations is entitled to reimbursement by the members of the family.
The sum of One Million Naira only (N1,000,000.00) is awarded to the defendant/counter-claimant as general damages against the plaintiffs jointly and severally.
It
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is not enough that Respondent suffered the sort of loss he claims as he reasoned; he has to claim and prove his peculiar loss in the manner known to law as explained above. Interestingly, Respondent attempted, albeit only in evidence, to state the amount he expended on the said litigation. He said thus on it under cross-examination:
I spent 480,000. I claim 240,000. I was only given 4,000.”
While the admissibility of this evidence is even doubtful given that no such figures were pleaded by him, how the trial judge went on to award Respondent a whopping sum of 1,000,000.00 as litigation expenses makes it even more perplexing when by Respondents own showing here he only spent 480,000 on the said litigation, claimed only 240,000 and admits that he had already been refunded 4,000. This award breached all known principles and is liable to be set aside. This issue is accordingly resolved in favour of appellants.
In the final analysis, the appeal succeeds in part as to the litigation expenses of 1,000,000.00 awarded Respondent by the lower Court. That award is accordingly set aside, while all other
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orders of the lower Court are affirmed.
The appeal having succeeded in part, parties shall bear their costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the lead judgment just delivered by my brother BOLOUKUROMO MOSES UGO, JCA. I agree with the conclusion reached thereat. I also abide by the consequential orders made in the lead judgment.
No order as to cost.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now, the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.
I agree with his reasoning and conclusion reached thereat and I abide by the orders contained therein.
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Appearances:
Harrison Hassan Esq.For Appellant(s)
P.A. Aki Esq.For Respondent(s)
>
Appearances
Harrison Hassan Esq.For Appellant
AND
P.A. Aki Esq.For Respondent