EMECHETA v. OKEKE
(2020)LCN/14317(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, June 15, 2020
CA/AW/191/2016
Before Our Lordships
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
JOHN EMECHETA APPELANT(S)
And
JOSEPH OKONWO SUNDAY OKEKE RESPONDENT(S)
RATIO
WHETHER OR NOT THE CLAIMANT MUST SUCCEED IN A CLAIM FOR A DECLARATION OF TITLE TO LAND ON THE STRENGHT OF HIS CASE
The trite position of the law is that a claimant succeeds in a claim for a declaration of title to land on the strength of his case and not on the weakness of the defendant case. In YELE OYENEYIN & ANOR V. DR.A. AKINKUGBE & ANOR. (2010) LPELR-2875(SC). The Supreme Court per ADEKEYE, JSC, held thus:
“The onus is on the plaintiff in an action involving title to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title claimed. He must rely on the strength of his case and not on the weakness of the defendant’s case. Kodilinye V. Odu (1935) 2 WACA PAGE 336; Akinola v. Oluwo (1962) 1 SCNLR page 352; Oduaran V. Asarah (1972) 1 ALL NLR (Pt.2) page 137; Idundun V. Okumagba (1976) 9-10 SC 227; Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7 ) page 393.”
In a claim for declaration of title, the claimant is to establish his claim by preponderance of evidence. In other words, he must produce sufficient and satisfactory evidence in support of his claim. Therefore, the test has been and will always be whether the claimant was able to prove to the satisfaction of the Court, that he has a better title than the defendant. The standard of proof in a claim for declaration of title to land is not different from the requirement in civil cases. In MR. AYOADE ADEWUYI V. ANDREW AJUKO ODUKWE (2005) LPELR-165 (SC) the apex Court held, per KATSINA-ALU, JSC, (as he then was)as follows:
“This Court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claims by preponderance of evidence. It is often enough that he has produce sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo V. Cookey Gam 2 NLR 100; and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally.”PER SANGA, J.C.A.
WAYS OF ESTABLISHING THE DECLARATION OF TITLE TO LAND
It is also trite law that to establish a declaration of title to land a plaintiff will have to prove or rely on one or more of the following five methods as enunciated by the Supreme Court in: IDUNDUN V. OKUMAGBA (1976) LPELR-1431 (SC) thus:
“As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. Firstly, ownership of land may be proved by traditional evidence. Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances given rise to the presumption in favour of due execution in the case of documents twenty years old or more. Thirdly, Acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it, are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done. Finally, 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 owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute.” per FATAYI–WILLIAMS, JSC. (pages 23 -26 paragraph). PER SANGA, J.C.A.
WHETHER OR NOT TRESPASS IS ACTIONABLE PER SE
Be that as it may, the trite position of the law is that trespass is actionable per se and once established the party wronged is entitled to damages even where no damages or loss is caused. In CHIEF WAHAB GBEMISOLA V. JOHN BOLARINWA AND OTHERS (2014) LPELR-22463 (SC) the Supreme Court held thus:
“the law is that a plaintiff is entitled to nominal damages for trespass even if no damages or loss is caused and if damages or loss is caused same is recovered according to general principle. See UMUNNA V. OKWURAIWE (1978) 6 – 7 SC at 11 – 12 and OSUJI V. ISIOCHA (1989) 3 NWLR (PT. 111) 623 at 634.’’ per MUHAMMED, JSC.
Also in OKUNRINMETA V. AGITAN(2002) 2 NWLR (Pt. 752) 565 at ratio 7 this Court held thus:
“trespass is actionable per se in the sense that once trespass is established by the plaintiff against the defendant, the former is entitled to any reasonable amount of money as damages.” PER SANGA, J.C.A.
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): Suit No.HN/33/2009 was instituted by the Respondent as Plaintiff (suing through his legal Attorney Chukunweike Iloka) against the Appellant as Defendant before the High Court of Anambra State of Nigeria Nnewi Judicial Division Holden at Nnewi, Peace N.T. Otti, J., presiding via a Writ of Summons and a Statement of claim dated 20th February, 2009 and filed on 24th March, 2009 seeking for the following reliefs.
a. A declaration that the Plaintiff is entitled to the grant of statutory right of occupancy in respect of all that piece or parcel of land lying, being and situate at Obiofia, Umuenem Otolo Nnewi more particularly described in the survey plan to be filed.
b. N1 million being general damages for trespass and malicious damage.
c. Injunction restraining the defendant, his agents, servants and/or privies from committing further acts of trespass on the said land.(pages 1-6 of the record of appeal)
On receipt of the plaintiff’s originating process, the defendant filed an amended statement of defense and a counter claim dated and filed on 14th March, 2012 wherein he counter
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claimed against the Plaintiff, as follows:
a. A declaration that the defendant is the rightful owner of the land in dispute situate at Obiofia Umuenem Otolo Nnewi more particularly described in the survey plan to be filed later.
b. One Million Naira (N1,000,000.00) being general damages for trespass on the land and for destroying the defendant’s crops for no just cause.
c. A perpetual injunction restraining the plaintiff, his agents, servants and/or privies from committing further acts of trespass on the said land.(page 100-104 of the record of appeal)
The plaintiff had earlier filed a Reply to the statement of Defense and Defense to Counter-Claim dated 16/7/2009 filed on 19/7/2010 against the Defendant’s statement of Defense to counter-claim dated 17/7/2009 filed on 28/7/2009. (pages 29-30 of the records). The case was commenced before Hon. Justice Ijem Onwuamaegbu on 12/10/2009, before he retired. Hon. Justice Mike I. Onochie started the case de novo. Trial was concluded and the matters adjourned to 26/9/2012 for adoption of Final Address before the unfortunate demise of the learned trial Judge. Justice P.N.T. Otti commenced
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hearing the matter de novo again on 9th April,2013.
The matter went to trial. The plaintiff called three witnesses while the defendant testified for himself and closed his case. Learned counsel to the parties filed their respective written addresses wherein they formulated two issues each and argued some in their addresses. After reviewing the processes filed, the learned trial Judge formulated two issues in his Judgment delivered on 4th June,2014 at pages 124 to 146 of the records as follows:
1. Whether the plaintiff has sufficiently proved his claim by credible evidence to entitle him to the reliefs sought.
2. Whether the Defendant has proven his counter-claim.
In deciding issue one after reviewing the evidence adduced by the parties the learned trial Judge held inter alia, as follows:
“This Honourable Court finds the Defendant’s averments in pages 3 and 7 of his amended statement of defence irreconcilable and shows that the defendant is gold digging in claiming ownership of the disputed land whose history he does not know and cannot trace. All the Defence is doing in this case is blowing hot and cold. In one breath the
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Defendant claims to be one of the sons of Enem and in yet another, he says the land in dispute had never at anytime been transferred to any member of Enem’s lineage or family members, yet he is claiming ownership of the land in dispute, which is an act of sheer folly on his part.”(page 135 of the records).
While pronouncing on the plaintiff’s case, learned trial Judge held thus:
“Having stated thus far, in the instant case, based on the nature of the pleadings, the burden was on the plaintiff to prove his case and I am satisfied that the plaintiff has creditably discharged the burden by coherent, cogent, compelling, consistent and convincing evidence.”(page 138 of the records)
In summing up his findings on issue 1 the learned trial Judge held thus:
“Finally on the first issue whether the plaintiff has successfully proved his claim to entitle him to Judgement in his favour, it is my most candid view that the plaintiff has by credible evidence discharged the burden of proof on him and is entitled to Judgment in his favour in this suit.”(page 139 of the records).
On issue two, the learned trial Judge
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held thus:
“Having stated thus far, it is evident that the Defendant has not proved his counter-claim to entitle him to Judgment in his favour as his evidence is at variance with his pleadings and I so hold.”(page 145 of the records)
While pronouncing his Judgment, the learned trial Judge held as follows:
“Having duly considered this suit NO. HN/33/2009 on the merit and for all the reasons given above in this Judgment, and relying on the numerous authorities referred to in this case, I hold that the plaintiff has by credible evidence on a balance of probability proved his case as meritorious.
Accordingly, this Honourable Court will grant the reliefs sought by the plaintiff as follows:
1. A declaration that the plaintiff is entitled to the grant of the statutory right of occupancy in respect of all that piece or parcel of land lying, being and situate at Obiofia, Umuenem, Otolo Nnewi more particularly described in Exhibit A.
2. N50,000 being general damage for trespass against the Defendant.
3. Injunction restraining the Defendant, his agents servant and/or privies from committing further act of trespass on the
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said land.
The Defendant is to pay to the plaintiff a cost of N20,000.”(page 145-146 of the records)
This decision by the learned trial Judge aggrieved the Defendant. He filed a notice of Appeal on 10th June, 2014 containing two Grounds of Appeal (pages 195 to 196 of the records). The records of Appeal was compiled and transmitted to this Court on 17th May, 2016. However, it was deemed properly compiled and transmitted to this Court on 10th May, 2017. This Court granted an order on 8th May, 2017 allowing the appellant to amend his Notice of Appeal to file additional grounds of Appeal which was filed by the appellant on 23rd May, 2017. The said Amended Notice of Appeal contained six grounds of Appeal which, shorn of their particulars, read as follows:
GROUND ONE
The learned trial Judge erred in law by declaring that the plaintiff is entitled to the statutory right of occupancy in respect of all that piece of land lying and situate at Obiofia, Umuenem, Otolo Nnewi, Anambra State when the plaintiff who sued through his Attorney Chukwunwike Iloka failed to prove his title to the land.
GROUND TWO
The learned trial Judge erred in law
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by declaring that the plaintiff is entitled to statutory right of occupancy in respect of the land in dispute when the evidence of plaintiff’s witnesses were filed with material contradictions which led to a miscarriage of Justice.
GROUND THREE
The learned trial Judge erred in law by assuming Jurisdiction to hear the case when there was no competent plaintiff before the Court and thereby gave Judgment which is a nullity due to lack of Jurisdiction.
GROUND FOUR
The learned trial Judge erred in law when he failed to strike out the suit when there was no competent plaintiff before the Court, the plaintiff having abandoned the capacity in which he prosecuted the case without an order of Court amending the Writ of Summons and the statement is a nullity.
GROUND FIVE
The learned trial Judge erred in law when after striking out the name of the plaintiff’s Attorney Chukwunwike Iloka on the oral application of his counsel, proceeded with the case and therefore (sic) gave a Judgment which is a nullity.
GROUND SIX
The learned trial Judge erred in law when he failed to strike out plaintiff’s suit for being incompetent
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after striking out the name of plaintiff’s dead Attorney Chukwunwike Iloka and thereby gave Judgment which is a nullity due to lack of juries.
The Appellant’s Brief of argument was settled by C.N. Nsobundu Esq., it was filed and served on 23rd May, 2017 but deemed properly filed and served on 28th May, 2017. From the 6 grounds of appeal, the appellant formulated 5 issues for determination as follows:
1. Whether the trial Court was right in accepting and acting on contradictory evidence to ground the grant of declaration of title in favour of the respondent in this case?
2. Whether there was sufficient evidence in proof of ownership by traditional history in favour of the respondent having regards to the state of evidence in this case?
3. Whether the trial Court was right in awarding damages to the respondent in this case?
4. Whether the trial Court had the jurisdiction to entertain Respondent’s suit after striking out the name of his Attorney Chukwunwike Iloka without any order substituting the dead Attorney and or amending the Writ of Summons, statement of claim and other processes.
5. Whether the death of
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plaintiff/respondent Attorney Chukwunwike Iloka in whose name the plaintiff sued did not terminate plaintiff’s suit in the absence of an order of substitution or Amendment.
The Respondent Brief of Argument was filed by Chief G. Oseloka Osuigwe. It was filed on 3rd May, 2017. Learned counsel formulated three issues for determination by this Court as follows:
1. Having regards to the pleading and evidence before the Court did the respondent prove his title to the land in dispute to entitle him to Judgment?
2. Did the Court below properly evaluate the evidence before the Court to arrive at the decision reached?
3. Was the Court below right in awarding damages in favour of the respondent?
In determining this appeal, I will adopt the issues canvassed by the Appellant considering the fact that issues 1, 2 and 3 are similar to the 3 issues formulated by the respondent. Issues 4 and 5 are questioning the decision by the lower Court in respect of the demise of the Respondent’s Attorney Mr Chukwunwike Iloka.
Issue 1 canvassed by the Appellant is:
Whether the trial Court was right in accepting and acting on contradictory
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evidence to ground the grant of declaration of title in favour of the Respondent in this case?
In his submission while arguing issue 1, learned counsel to the Appellant stated that the trial Court was wrong when it found for the Respondent. That the law is trite that he who alleges must prove. The duty of proving title to land in this case rest squarely on the Respondent and it must be discharged by credible evidence as stated in Section 131(1) and 132 of the Evidence Act. Learned counsel quoted the two sections of the Evidence Act. That during the cross examination of PW1 by learned counsel to the Appellant he testified thus:
Q: Do you know Enem?
A: I do not know him
Q: Do you know Ezenkwa?
A: I do not know him.
Q: You do not know Tibuaku?
A: I do not know him.
Q: You do not know Nwakire?
A: No I do not know him.
(page 174 of the records)
Learned counsel submitted that this pieces of evidence are material to the case of the respondent as it touches on the root of title of the Respondent and the chain of devolution. That P.W.1 was the person who claimed to own the land in dispute and has traced his root of
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title through Jibuaku to Enem but has made a u-turn to deny that he does not know any of the names and persons through whom the title to the land in dispute devolved to him that the law is trite that a person who claim for declaration of title to the land founded on traditional history must plead and establish some facts as held by this Court in GBADAMOSI V. TAIWO(2004)43 WRN 51 AT 57.
Learned counsel also pointed out what he alleged is another contradiction in the testimony of plaintiff’s witnesses where they testified that there was no signed written document when the Respondent purchased the land in dispute from Mr. Onwujike. That P.W.1 in his testimony under cross-examination was asked:
Q: Who is Anthony Okeke?
A: He is the plaintiff’s brother that signed as a witness for the plaintiff at the sale of the land. The Anthony Okeke is now late.
Q: Who is Okonkwo Nwagbo?
A: He signed as my witness but he is now late.
Another area of contradiction in the testimony of the plaintiff’s witness is in respect to the year the land transaction took place. While P.W.1 and P.W.2 gave evidence that the land in dispute was
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purchased by the respondent in 1986, P.W.3 testified under cross-examination that the land was purchased in 2008. That P.W.3 testified that:
“A: It was late Barrister George Okeke that bought the land on behalf of his brother, the plaintiff Dr. Joseph Okeke came back home in December, 2008.”
That another area of contradiction as pointed out by learned counsel to the Appellant is the testimony of P.W.2 who testified during cross-examination when asked whether he knows one Nneoma (who the plaintiff said was the second wife of their Ancestor Ezenkwa) and he answered:
“A: We do not know any such name in our kindred.”
That the trial Court ought to have disregarded the evidence of the respondent as it was riddled with contradictions. It had no right to pick and choose from the evidence of the said respondent which one to believe. Cited ADEPOJU AYANWALE & ORS V. BABALOLA ATANDA and ANOR. (1988) All NLR 24 AT 38 (1988) 1 NWLR (PT.68) 22; OGUNJEMILA V. AJIBADE (2010) 11 NWLR (PT.1206) 559 at 564. EBOADE V. ATOMESIN (1997) 5 NWLR (PT.506) 59 and AJOSE V. FEDERAL REPUBLIC OF NIGERIA (2011) 6 NWLR (PT. 1244) 465 at 468.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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That the lower Court has a duty not to act outside the evidence before it or ignore material inconsistencies which are apparent on the record. That any judgment which ignores the evidence before it is in law perverse and thus null and void. that in ODIBA V. AZEGE (1998) 7 SCNJ 119 the Apex Court held thus:
“A perverse decision is one which ignores the fact or evidence and when considered as a whole amount to a miscarriage of Justice.”
Learned counsel cited and quoted the Supreme Court in UDENGWU V. UZUEBU (2003) 34 WRN 1 at 3 and contends that the lower Court gave Judgment which is perverse having regards to the evidence before it. Once a decision is perverse, the said decision is liable to be set aside. He urged the Court to set aside the decision by the lower Court and resolve this issue in favour of the Appellant.
Issue 2 canvassed by learned counsel to the Appellant is:
Whether there was sufficient evidence to prove ownership by traditional history in favour of the respondent having regards to the state of evidence in this case?
In arguing this issue, learned counsel to the Appellant submitted that the respondent did not
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place sufficient evidence before the trial Court to entitle him to Judgment in his favour. That it is trite law that a party who relies on traditional history must plead and establish certain facts as held by this Court in GBADAMOSI V. TAIWO (2004) 43 WRN 51 at 57 where the Court held thus:
“A person who claims for declaration of title to land founded on traditional history must plead and establish such facts as:
a; Who founded the land
b; How he founded the land
c; The particulars of the intervening owners through whom he claims and
d; The history of how the land tenure evolved from the ancestors to the parties.”
Learned counsel also citedKUPOLUYI V. PHILIPS(2001)31 WRN 128 and submitted that the respondent did not satisfy the conditions laid down by this Court above. That there is no evidence to show how the land was founded by Enem. That there is no evidence to prove whether Enem got the land by first settlement or conquest which are the oldest method of owning land. That these two methods have long been accepted as a means of proving either communal or family ownership as in the instant case. That
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in ABINABINA V. ENYIMADU (1952) 12 WACA 171 at 174 the Court held thus:
“first settlement seems to be the oldest method of acquiring title to land. If the traditional evidence of such first settlement is accepted, title can be declared purely on such traditional evidence.”
That this principle of law was affirmed by the apex Court in ODOFIN V. AYOOLA (1984)11 SC 72 AT 93. That the lower Court was wrong in holding that the respondent proved his case satisfactory by credible evidence when the evidence of traditional history of the Respondent is inconclusive. Learned counsel urged the Court to hold that the evidence of traditional history offered by the respondent is in sufficient and thus incapable of sustaining a declaration of ownership in his favour. He urged the Court to resolve this issue in favour of the Appellant.
Issue 3 formulated by the Appellant is:
Whether the trial Court was right in awarding damages to the Respondent in this case?
In arguing this issue, learned counsel to the Appellant contends that the trial Court was wrong in awarding damages to the Respondent as he did not prove any damage or loss suffered by him that can
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entitle him to damages. That damages are not granted for the asking, the Court has to be satisfied by evidence that a party asking for damages is entitled to same before awarding it to him. That the Respondent in his pleadings claimed the sum of One Million Naira (N1,000,000.00) as general damages for trespass. But he (the Respondent) failed to lead evidence in prove of the said claim. That the only pieces of evidence closely related to the claim for general damages can be found in the evidence of P.W.1 and PW3 while testifying in chief that the Appellant broke the wall erected by the respondent round the land in dispute. That the respondent reported the incident to the police who arrested the Appellant and arraigned him before the chief Magistrate Court Nnewi for malicious damages in charge NO: NMC/366C/2008: C.O.P. v. John Emecheta.
That the Appellant rebutted this evidence by the Respondent when he pleaded that he was tried by the Magistrate who discharged and acquitted him. That the Respondent failed to prove his claim for damages. That the law is trite that in an action for damages for trespass to land, the plaintiff must lead evidence in support of
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such claims, there must be credible evidence in respect of the things that are damaged or destroyed on the land. Cited: DUMEZ (NIG.) LTD V. OGBOLI (1972) All NLR 244; and GOVERNOR OF MID-WESTERN PROVINCE and OTHERS V. ELUAKA AND ORS. (unreported) SC.81/67 judgment delivered on 23rd October, 1970 where the apex Court held thus:
“Now we have indicated above and we must reiterate that in determining compensation, a Judge must make his assessment on the evidence before him and not make guess(sic) based on matters upon which he has no received specific evidence.”
That although this Court is usually reluctant to interfere with a decision by the trial Court it will certainly interfere where the said trial Court acted in disregard of the law or acted without evidence. That in this suit the trial Court did not receive any evidence in proof of damages and therefore has no justification in awarding damages. Learned counsel urged the Court to wade in and review the award of damages by the Lower Court. He urged the Court to resolve this issue in favour of the Appellant.
Learned counsel to the Respondent’s first issue is couched thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Having regard to the pleading and evidence before the Court, did the respondent prove his title to the land in dispute to entitle him to judgment?
In his submission while arguing this issue, learned counsel to the respondent submitted that the answer to this issue is in the affirmative. That for a plaintiff to succeed in a claim for a declaration of title he must do so on the strength of his case and not on the weakness of the defendant’s case. Cited: ONYENEYIN V. AKINKUGBE (2010) 4 NWLR (PT.1184) 265 at 295 paras D-H per ADEKEYE, J.S.C. That the standard of proof in a claim for a declaration of title to land is not different from the requirement in civil cases. Cited: ADEWUYI V. ODUKWE (2005)14 NWLR (Pt.945) 473 at 491; ADELEKE V. IYANDA (2001) 13 NWLR (Pt.729) 1 at 21-22. That in civil cases, parties are bound by their pleadings that the parties present their cases to the Court and what is in controversy between the parties will be known and no party will be taking by surprise. Cited:AGBU V. CIVIL SERVICE COMMISSION NASARAWA STATE (2011) 1 NWLR (Pt.1229) 544 at 556.
Learned counsel to the respondent submitted that to establish a declaration
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of title of land, a plaintiff will prove or rely on one or more methods enumerated in a plethora of authorities viz;
a. By traditional evidence
b. By production of title documents;
c. By act of possession over the land
d. By act of long possession and enjoyment of other land; or
e. By proof of possession of connected or adjacent land.
Cited:NNADOZIE V. OMENSU (1996) 5 NWLR (Pt.446) Ratio 6. IDUNDUN V. OKUMAGBA (1976) 9-10 S.C. 227
Learned counsel submitted that the respondent in paragraphs 3, 4, 5, 6, 7 and 8 of his statement of claim pleaded his traditional history in accordance with the law. That he pleaded the founder of the land in dispute and successive ancestors till the land got to him. That in OHIAERI V. AKUBEZE (1992) 2 NWLR (Pt.221) the Court held thus:
“A party relying on traditional history must prove his root of title. He must show in his pleading and evidence who those ancestors of his are and how he came to own and possess the land and eventually passed to him.”
That the contention by learned counsel to the Appellant that the respondent did not prove his traditional history to entitle him to a
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declaration of title is not well founded and a misconception of the law. Cited:OHIAERI V. AKABUEZE (supra) at page 5. That by his pleadings the appellant admitted that the ancestors of the respondent are the original owners of the land in dispute. Learned counsel referred the Court to page 83 of the Records where the appellant in paragraphs 3 and 4 of his Amended Statement of Defense admitted the root of title of the respondent. That the appellant did not challenge or controvert the averments in paragraphs 9, 10 and 11 of the respondent’s statement of claim which shows clearly that the appellant is a stranger to the land in dispute.
Learned counsel to the respondent submitted further that where the title of the plaintiff is admitted by the defendant in a declaration of title to land, the plaintiff is relieved of the duty to prove or establish anything which is already admitted. That the burden will then shift to the defendant to show that the plaintiff has been divested of such title. Cited: MULIMA V. USMAN (2014) 12 KLR (Pt.355) 3907; OKOYE V. NWANKWO (2014) 6 KLR (Pt.351) 2737. That the law is trite that averments which are admitted need no further
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proof. Cited: AGBANELO V. UBN L.T.D (2000) 7 NWLR (Pt.666) 534 at 549.
Learned counsel to the respondent finally submitted on this issue, that his client has discharged the evidential burden placed on him through the evidence of PW1, PW2 and P.W.3. That the totality of their evidence is in line with the pleadings of the respondent which in civil cases is decided on preponderance of evidence. That by their evidence the respondent’s witnesses were able to show that P.W.1 inherited the land in dispute from the original founder. That he (PW1) sold the land in dispute to the respondent and put him in possession. Learned counsel also reviewed the evidence of PW2 and PW3 and submitted that these pieces of evidence were not challenged or controverted during cross-examination. Cited:EBEINWE V. THE STATE (2011) 7 NWLR (Pt.1246) 402 at 416 where the apex Court held thus:
“The position of the law is that evidence that is neither challenged nor debunked remains good and credible evidence which should be relied upon by the trial Judge who would in turn ascribe probative value to it.”
That the appellant fail to cross-examine the
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respondent’s witnesses on vital issues which means the appellant have accepted the evidence as the true position of the case. That this is fatal to the appellant’s case as it amounts to admission which the respondent can rely on in proof of his case. That the Court is bound to accept the evidence and act on same. Cited:OFORLETE V. STATE (2000) 12 NWLR (Pt.681) 415 at 436; GAJI V. PAYE (2003) 8 NWLR (Pt.823) 583 at 605. Learned counsel urged the Court to resolve this issue in favour of the respondent.
Issue 2 canvassed by learned counsel to the Respondent is:
Did the Court below properly evaluate the evidence before the Court to arrive at the decision it did?
Learned counsel to the Respondent submitted while arguing this issue that the law is trite that the trial Judge has the sole duty to evaluate the evidence of the parties’ witnesses having heard and watched them give evidence and observed their demeanour. That where the trial Court properly evaluated the evidence placed before it then the appellant Court will not disturb its findings and judgment. Cited: ABAYE V. OFILI (1986) 1 NWLR (Pt.15) at 134; EKPO V. STATE (2003) 17
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NWLR (Pt.849) 392 ratio 4; and UKEJIANYA V. UCHENDU (1950) 13 WACA 45. That where a judgment of a Court is attacked on appeal on the basis that it is against the weight of evidence or that the findings of fact is questioned, this Court in its primary role in considering such judgment will seek to know the following:
1. The evidence before the Court
2. Whether the trial Court accepted or rejected any evidence upon the correct perception.
3. Whether it correctly approached the assessment of the value on it.
4. Whether it used the imaginary scale to weigh the evidence of both sides.
5. Whether it appreciated upon a preponderance of evidence which side the scale weighed or titled having regard to the burden of proof.
Cited in support of this submission the authorities of ADEBAYO V. ADUSEI (2004) 4 NWLR (Pt.862) 44 at 60. EGONU V. EGONU (1978) 11-12 SC.111.
Learned counsel submitted that the learned trial Judge discharged the duty placed on him by painstakingly evaluating the pleadings and evidence of the parties presented before the Court and drew the right inference and reached conclusions based on facts before him. That it is
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the appellant who has a counter claim that has a corresponding duty like the respondent to establish, by pleadings and evidence, his title to the land in dispute. That the appellant failed to do so in this case, as he did not file any survey plan to show the identity and size of the land he is claiming. That the law is trite that in a counter-claim the claimant has a duty to prove his title to the land in dispute with certainty. Cited: KYARI V. ALKALI (2001) 11 NWLR (Pt.724) 412 at 433. That in a number of cases the Courts held that in situations where a plaintiff traces his title to one whose title is established, the onus shifts to the defendant. Cited: OKEREKE V. NWANKWO (2003) 9 NWLR (Pt.826) 592 at 617. That the respondent has fulfilled this requirement. That the Appellant is not even in possession of the land in dispute from the evidence before the lower Court.
On the submission by learned counsel to the appellant that there is contradiction in the evidence of the Respondent‘s witnesses, learned counsel to the respondent replied that the assertion is a misconception of the law by the appellant’s counsel. That the appellant placed much
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emphasis on the answers given by P.W.1 during cross-examination as to whether he knows the following: Enem, Ezenkwa, Jibuaku and Nwakire to which he replied that he did not know them. Learned counsel to the respondent submitted that learned counsel to the appellant misunderstand the word “know” to mean “heard of”. That PW1 correctly said he does not know them since he was not born when they were alive. He urged the Court to discountenance the assertion by learned counsel to the appellant on this issue.
That even where there is a contradiction, it must touch on the material facts of the case in issue. It must go to the root of the case. It is not every inconsistency in a party’s case that can be fatal to that case. Cited: OSADIM V. TAIWO (2010) 6 NWLR (Pt.1189) 155 at 180, ADEBAYO V. IGHODALO (1996) 5 NWLR (Pt.450) 507 at 516. That a learned trial Judge is at liberty, while accepting the evidence with discrepancies to state the reasons why he accepted the evidence. That in the instant suit the learned trial Judge having adverted her mind to the inconsistency in the evidence of P.W.3 had duly satisfied the requirement of the
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law. Cited: EBEINWE V. STATE (2011) 7 NWLR (Pt.1246) 402 at 414; MULIMA V. USMAN (supra) at 3910. Learned counsel urged this Court to resolve this issue in the respondent’s favour.
Issue 3 canvassed by the Respondent is:
Was the Court below right in awarding damages in favour of the respondent?
Learned counsel to the respondent answered this issue in the affirmative. That the respondent was able to establish that he was in actual possession before the appellant interfered with his possession in 2008 when he trespassed and caused damage to his fence.
That by the evidence of the respondent’s witnesses he has established that he was in possession before the appellant trespassed on to the land in dispute. Cited: LADIPO V. AJANI (1997) 8 NWLR (Pt.517) 356 at 367. That mere disturbance of another does not render the possession in exclusive unless entered lawfully. Cited:OGBU V. ANI (1994) 7 NWLR (Pt.355) 128. That in the instant suit the appellant did not enter the land of the respondent lawfully.
Learned counsel to the respondent submitted that the assertion by the appellant that the respondent did not prove his claim for
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damages and malicious damages is misconceived. That the said appellant who claimed that he was discharged and acquitted by the Magistrate Court did not tender anything before the lower Court to buttress his claim. That it is trite law that he who assert must prove. That trespass is actionable per se and once established the party is entitled to damages without actual damage. Cited: OKURINMETA V. AGITAN (2002) 2 NWLR (Pt.752) 565 ratio 7. That the appellant cannot claim to be in possession because the law ascribes possession to the person with a better title.
Learned counsel urged the Court to resolve this issue in favour of the respondent.
FINDING ON ISSUE 1:
Issue 1 as couched by the Appellant is:
Whether the trial Court was right in accepting and acting on contradictory evidence to ground the grant of declaration of title in favour of the Respondent in this case?
I have considered the submission by learned counsel to the parties while arguing this issue. The trite position of the law is that a claimant succeeds in a claim for a declaration of title to land on the strength of his case and not on the weakness of the defendant case. In
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YELE OYENEYIN & ANOR V. DR.A. AKINKUGBE & ANOR. (2010) LPELR-2875(SC). The Supreme Court per ADEKEYE, JSC, held thus:
“The onus is on the plaintiff in an action involving title to satisfy the Court that he is entitled on the evidence brought by him to the declaration of title claimed. He must rely on the strength of his case and not on the weakness of the defendant’s case. Kodilinye V. Odu (1935) 2 WACA PAGE 336; Akinola v. Oluwo (1962) 1 SCNLR page 352; Oduaran V. Asarah (1972) 1 ALL NLR (Pt.2) page 137; Idundun V. Okumagba (1976) 9-10 SC 227; Mogaji V. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt.7 ) page 393.”
In a claim for declaration of title, the claimant is to establish his claim by preponderance of evidence. In other words, he must produce sufficient and satisfactory evidence in support of his claim. Therefore, the test has been and will always be whether the claimant was able to prove to the satisfaction of the Court, that he has a better title than the defendant. The standard of proof in a claim for declaration of title to land is not different from the requirement in civil cases. In MR. AYOADE ADEWUYI V. ANDREW AJUKO ODUKWE
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(2005) LPELR-165 (SC) the apex Court held, per KATSINA-ALU, JSC, (as he then was)as follows:
“This Court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claims by preponderance of evidence. It is often enough that he has produce sufficient and satisfactory evidence in support of his claim. The test is whether the plaintiff has been able to prove to the satisfaction of the Court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo V. Cookey Gam 2 NLR 100; and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally.”
It is also trite law that to establish a declaration of title to land a plaintiff will have to prove or rely on one or more of the following five methods as enunciated by the Supreme Court in: IDUNDUN V. OKUMAGBA (1976) LPELR-1431 (SC) thus:
“As for the law involved, we would like to point out that it is now settled that
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there are five ways in which ownership of land may be proved. Firstly, ownership of land may be proved by traditional evidence. Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances given rise to the presumption in favour of due execution in the case of documents twenty years old or more. Thirdly, Acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it, are also evidence of ownership provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner. Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done. Finally, proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in
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addition, be owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute.” per FATAYI–WILLIAMS, JSC. (pages 23 -26 paragraph).
It is my finding that in this suit, the respondent as plaintiff relied on traditional history and acts of possession and ownership to prove his case. In paragraphs 3, 4, 5, 6, 7 and 8 of his pleadings the respondent pleaded his traditional history in accordance with the law. He pleaded the founder of the land in dispute and successive ancestors till the land got to him. Learned counsel to appellant aptly captured the traditional history of the respondent in paragraph 3.0 of the appellant’s brief as follows;
“The facts of this case as can be gleaned from the records are that the respondent purchased the land in dispute in the year 1986 from John Onwujike. It is the respondent’s case that John Onwujike from whom the respondent got the land is the owner of the land by inheritance in line with the customs and tradition of Nnewi people. John Onwujike is the descendant of Enem who founded the land. After Enem, it was inherited by Dogonu the son of Enem, from
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Dogonu it got to Ezenkwa and from Ezekwa it was inherited by Nwakile. From Nwakile it got to Okonkwo from Okonkwo it got to Onunkpa and from Onunkpa to Onwujike and from Onwujiketo John Onwujike who eventually sold the land in dispute to the respondent. In proof of the above traditional history and purchase of the land in dispute, the representative called three witnesses namely, John Onwujike, Osita Anowai and Boniface Onwuanumba who testified as PW1, PW2 and PW3 respectively.”
I have considered the testimonies by the plaintiff’s witnesses PW1, Osita Anowai at pages 153 to 154; PW2; John Onwujike at pages 158 to 161 of the records and P.W.3; Boniface Onwuanumba at pages 161 to 163 of the records of appeal and it is my findings that their evidence is in line with the pleadings of the respondent as contained in the statement of claim. Also the respondent through his witnesses as contained in their various dispositions on oath were able to show that P.W.2 inherited the land in dispute from the original founder. He also testified that he sold the land to the respondent and put him in possession. P.W.3 testified that he was present when P.W.2 sold
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the land to the respondent. He also testified that the house the appellant is staying belonged to Late Izuagu who died without an heir. P.W.1 also testified that he was farming on the land in dispute at the pleasure of the respondent who after purchasing same allowed him to be farming on it without challenge from any one until in 2008 when the appellant demolished part of the fence erected by the respondent on the land in dispute. I noted that these pieces of evidences were unchallenged and uncontroverted during cross-examination. InEBEINWE V. STATE (2011) 7 NWLR (Pt.1246) 402 at 416 the Supreme Court held as follows:
“The position of the law is that evidence that is neither challenged nor debunked remains good and credible evidence which should be relied upon by the trial Judge who would in turn ascribe probative value to it.”
On the submission by learned counsel to the Appellant that during cross-examination P.w.2 testified that he did not know his ancestors, Enem, Ezenkwa, Jibuaku and Nwakire therefore his testimony should be discountenanced for being unreliable. I find this assertion by learned counsel to be laughable based on the
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fact that if the witness had testified that he knows his ancestors who lived centuries ago then any reasonable hearer will know he is not telling the truth. The witness (PW.2) is therefore a witness of truth, the trial Court that saw and heard him believed his testimony. This Court has no option but to also believe the said witness.
On the submission by the learned counsel to the Appellant that in his testimony under cross-examination PW.3 contradicted the evidence of P.W.1 and P.W.2 when he stated that the respondent purchased the land in dispute in 2008 instead of 1986. That to my mind is a storm in a tea cup since it does not change the unchallenged evidence of the parties, based on their pleadings, that the respondent bought the land in dispute in the presence of many witnesses (some of whom testified) in 1986. In 2008, the Appellant entered the Respondent’s land and demolished part of the fence. This minor discrepancy in the testimony of PW3 as to the date the respondent purchased the land in dispute cannot render the case of the respondent incredible. In YESUFU OGEDENGBE & OTHERS V. CHIEF J.B. BALOGUN & OTHERS (2007) LPELR-2297 (SC) the
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apex Court held, per ONNOGHEN, JSC, (as he then was) as follows:
“From the passage reproduced supra from the judgment of the lower Court, it is very clear that the Court, though found the existence of apparent contradiction in the evidence as regards a feature on the land, concluded that the said inconsistency is not such as would lead to a reversal of the finding of fact on the identity of the disputed land having regard to the fact that other features co-exist along the sketch of boundary in issue, which have been properly established in evidence and sustain the finding by the trial Judge on the matter. I agree entirely with the conclusion of the Court below in the passage reproduced earlier in this judgment and hold that it is not every inconsistency in evidence that would lead to a reversal of the decision of the lower Court on a matter and that for the inconsistency to have the effect of reversal, it must be on a material fact relevant to the issue in controversy between the parties.”
It is my finding on this issue that the trial Court was right in accepting and acting on the uncontradictory evidence of the respondent to ground the
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grant of a declaration of title in his favour. This issue is resolved in favour of the respondent.
FINDING ON ISSUE 2:
Whether there was sufficient evidence in proof of ownership by traditional history in favour of the respondent having regard to the state of evidence in this case?
I have narrated the submission by learned counsel to the parties on this issue above. It is my finding that the respondent adduced sufficient evidence in proof of ownership by traditional history of the land in dispute which evidence is far superior to that of the appellant. I considered the evidence by the respondent as contained in paragraphs 3, 4, 5, 6, 7 and 8 of his pleadings at pages 3 and 4 of the record of appeal and the testimony of his witnesses in my finding in issue one above. All I need to add is that the Respondent also tendered a document in evidence which is marked as Exhibits ‘A’. Exhibit ‘A’ is the plaintiff’s survey plan NO: NW/AND03/2010 which was tendered in evidence without objection by learned counsel to the Appellant and marked as Exhibit ’A’ (page 159 of the records).
On his part, the Appellant
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testified for himself and did not tender any Exhibit. On a careful scrutiny of the Appellant’s pleadings, it is obvious that his case lacks merit as it was contradictory and conflicting in content. For instance the Appellant pleaded at paragraph 3 of his Amended Statement of Defense at pages 100 -104 of the Records as follows:
“3. The Defendant admits paragraph 4 of the plaintiff’s statement of claim. The land in dispute is part of the land belonging to Enem. The Defendant further avers that he, the Defendant, is one of the sons of Enem, that is he is one of the Umuenem- also known as ‘Enem’. And hence he is from Dugonu, and the said Enem is his, the Defendant’s, common ancestor.”
However, in paragraph 7 the Appellant made a volta-face and pleaded thus:
“7. The Defendant denies paragraphs 6 and 7. The land in dispute had never at any time been transferred to any member of Enem’s lineage or family member. The Defendant avers that he got the land in dispute as part of a vast area of land by gift inter-vivos from Onyekweli Ezinmuo his uncle in 1968.”
The Appellant also did not challenge
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the survey plan marked as Exhibit ‘A’ thus he is deemed to accept it. The Appellant by his counter-claim ought to prove that he has a better title to the land in dispute than the Respondent for him to succeed. In order to discharge the burden on him in prove of his counter-claim the Appellant ought to adduce evidence to support his pleadings as failure to do so renders the pleadings worthless. In CAMEROON AIRLINES V. MR. MIKE E. OTUTUIZU (2011) LPELR-827(SC) the Supreme Court per RHODES-VIVOUR, JSC, held thus:
“Averments in pleadings are facts as perceived by the party relying on them. There must be oral or/and documentary evidence to show that the facts pleaded are true. Consequently, pleadings without evidence to support it are worthless.”
Also in RT. HON. ROTIMI CHIBUIKE AMAECHI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & OTHERS (2008) LPELR-446(SC) the apex Court per ONNOGHEN, JSC, (as he then was) held as follows:
“It is a settled principle of law that he who alleges must prove and that where a party fails to produce evidence in support of facts pleaded, the pleadings are thereby deemed
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abandoned.”
See also: CHARLES OWOLOGBO UGBOTOR V. FLORENCE MAMUROMU UGBOTOR (2006) LPELR-7612 (C.A) per BULKACHUWA, JCA, B.V. MAGNUSSON V. K. KOIKI & OTHERS (1993) LPELR-1818(SC) per KUTIGI, JSC (as he then was)
I agree with the decision by the learned trial Judge, after reviewing the evidence adduced by the Appellant, that they are full of contradictions. Therefore, the Appellant has failed to prove his counter-claim to entitle him to judgment in his favour. I also resolve this issue in favour of the Respondent.
FINDING ON ISSUE 3
Issue 3 raised by the Appellant is:
Whether the trial Court was right in awarding damages to the Respondent in this case?
I have also noted the submissions by learned counsel to the parties on this issue. In view of my findings under issues 1 and 2 above in favour of the Respondent, the answer to this question is obviously in the affirmative for the reasons given here under.
Having considered the pleadings and evidence adduced in support, it is obvious that the Respondent was able to establish that he was in actual possession of the land in dispute before the Appellant interfered with the
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said respondent’s possession in 2008 when he trespassed and caused damage to part of the fence erected by the Respondent. The three witnesses who testified for the Respondent established that he was in possession of the land in issue through P.w.2 before the Appellant’s trespass which led to the demolishing of part of the fence. In JOSEPH OLADIPO & OTHERS V. WIILIAM AJANI AND OTHERS (1997) LPELR-1736 (SC) the apex Court per KUTIGI, JSC (as he then was) held thus:
“A person can also be in possession through a third party such as servant, agent, or tenant. Possession of a predecessor in title is in law deemed to be continued by his successor.”
The Appellant averred in his pleadings that he entered the land in dispute and destroyed part of the fence erected by the Respondent but that when he was arraigned before a magistrate Court he was discharged and acquitted. Unfortunately, he failed to tender any document to support this pleading. Be that as it may, the trite position of the law is that trespass is actionable per se and once established the party wronged is entitled to damages even where no damages or loss is caused. In
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CHIEF WAHAB GBEMISOLA V. JOHN BOLARINWA AND OTHERS (2014) LPELR-22463 (SC) the Supreme Court held thus:
“the law is that a plaintiff is entitled to nominal damages for trespass even if no damages or loss is caused and if damages or loss is caused same is recovered according to general principle. See UMUNNA V. OKWURAIWE (1978) 6 – 7 SC at 11 – 12 and OSUJI V. ISIOCHA (1989) 3 NWLR (PT. 111) 623 at 634.’’ per MUHAMMED, JSC.
Also in OKUNRINMETA V. AGITAN(2002) 2 NWLR (Pt. 752) 565 at ratio 7 this Court held thus:
“trespass is actionable per se in the sense that once trespass is established by the plaintiff against the defendant, the former is entitled to any reasonable amount of money as damages.”
In the instant suit, the Appellant cannot claim to be in possession of the land in dispute since the law always ascribes possession to the person with better title and the Respondent has a better title than the Appellant. In FOLORUNSHO OLUSANYA V. ADEBANJO OSINLEYE (2013) LPELR-20641 (SC) the Supreme Court held thus:
“It is settled on the authorities that where two parties claim to be in
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possession of land, the law ascribes possession to the one that has a better title. See JONES V. CHAPMAN (1848) 2 EXCH. 803; CANVEY ISLAND COMMISSIONERS V. PREEDY (1922) 1 CH.179’’. Per ALAGOA, JSC at page 16 paragraph C-D.
The Supreme Court explicitly clarified the position in RAMONU RUFAI APENA & OTHERS V. OBA FATAI AILERU & OTHERS (2014) LPELR – 23305 (SC) per RHODES – VIVOUR, JSC, as follows:
“Both parties cannot be in possession of the same land. Surely one of them must be in lawful possession while the other is the trespasser. Where, as in this case both parties claim to be in possession of the land the law ascribes possession to the party with better title. See Mogaji V. Odofin (1978) 4 SC P.91.”
Upon my finding that the Respondent has a better title to the land in dispute and the Appellant conceded that he entered the said land and demolished part of the fence erected by the Respondent, then trespass is established against the Appellant and the Respondent is entitled to damages for trespass, and I so hold. The trial Court is therefore right in awarding damages to the Respondent. This issue
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is also resolved in favour of the Respondent.
Learned counsel to the Appellant formulated issues 4 and 5 from grounds 5 and 6 of the additional grounds of appeal. The issues are as follows:
1. Whether the trial Court had the jurisdiction to entertain Respondent’s suit after striking out the name of his Attorney Chukwunwike Iloka without any order substituting the dead attorney and or amending the Writ of Summons Statement of Claim and other processes.
2. Whether the death of plaintiff/Respondent’s Attorney Chukwunwike Iloka in whose name the plaintiff sued did not terminate plaintiff’s suit in the absence of an order of substitution or amendment.
It’s apparent that learned counsel to the Appellant in his submission chose to argue both issues 4 and 5 together by reframing them as follows:
Whether the striking out of the name of the dead Plaintiff/Respondent’s Attorney Chukwunwike Iloka by the trial Court without any substitution and or amendment of plaintiff’s Writ of Summons and Statement of Claim did not rob the trial Court of jurisdiction to entertain the suit since a dead person cannot sue or be
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sued and the Court cannot assume jurisdiction over a dead Attorney.
Learned counsel to the Appellant submitted that the Respondent took out the Writ of Summons and all the processes in this suit in the name of his Attorney Chukwunwike Iloka and all the depositions on oath of the plaintiff’s witnesses including plaintiff’s final written addresses were through his said Attorney. That after the cross-examination of P.W.1 the trial Court, on the oral application of the plaintiff’s counsel, struck out the name of plaintiff’s Attorney and continued hearing the suit. That the moment the name of the plaintiff’s Attorney was struck out, then the trial Court ceases to have jurisdiction to proceed with the matter. That the application to strike out the name of the Attorney was because he died during the trial of the suit. Learned counsel submitted that until the name of the dead Attorney is substituted the lower Court lacks the jurisdiction to proceed with the matter as anything done will amount to a nullity. Cited: OKETIE & ORS V. OLUGHOR & ORS (1995) 5 SCNJ 217 AT 266. That a dead person ceases to be a legal entity or have
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legal personality since he cannot sue or be sued personally or in a representative capacity. Cited: NZOM V. JINADU (1987) 1 NWLR (Pt.51) 533 at 541. That the lower Court has a duty to substitute the deceased Attorney on the application of the Respondent. Cited: In RE OGUNDAHUNSI (2008) All FWLR (Pt.420) 671 at 700; OSAGUNNA V. MILITARY GOVERNOR OF EKITI STATE (2001) 4 SCNJ 30 at 44-45; EYESIAN V. SANUSI (1984) 4 SC 15. Learned counsel to the Appellant submitted further that jurisdiction is so fundamental that it can be raised even on appeal as a defect in competence is fatal to a proceedings. Cited: MADUKOLU & ORS V. NKEMDILIM (2001) 46 WRN1: (1962) 1 ALL NLR (Pt. 4) 587 at 594; SKEN CONSULT (NIG.) LTD. V. UKEY (1981) 1 SC 6 at 26; NWABUEZE V. OKOYE (2002) 10 WRN 123 at 155. That during the hearing of this suit on 12th June, 2013 learned counsel to the plaintiff informed the lower Court of the death of the plaintiff’s Attorney and applied for his name to be struck out which the learned trial Judge granted by striking out the name of the deceased Attorney. (page 176 of the records).
Another ground of raising this objection based on jurisdiction is
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as it pertains to the Writ of Summons, where appropriate, as to the capacity in which the action was brought. That the plaintiff cannot change the capacity in which he filed the suit without an order of Court, and no such order was sought for nor granted by the lower Court. Cited: A-G. KWARA STATE V. OLAWALE (1993) 1 NWLR (Pt.272) 645; AJAO V. OYEWUSI (2008) ALL FWLR (Pt.432) 1119 at 1147. That in questions where jurisdiction is raised, the form in which it is raised is not relevant. Cited: EMESIM V. NWACHUKWU (1999) 3 NWLR (Pt.596) 590; ALHAJI USMAN S. RIRUWAI V. MALLAM IBRAHIM SHEKARU & ORS (2009) ALL FWLR (Pt. 461) 975 at 990. Learned counsel to the Appellant urged the Court to resolve this issue in favour of the Appellant. He also urged the Court to set aside the decision by the lower Court,
FINDING ON ISSUES 4 AND 5:
I have considered the submission by learned counsel to the Appellant on these issues and it is my finding that upon considering the Records of appeal compiled and transmitted to this Court on 23/3/2009, there is an instrument in writing displayed where by the Respondent appointed the late Chukwunwike Iloka as his Attorney at
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page 20 of the records. Be that as it may, my finding is that the Appellant did not fully grasped the meaning and importance of Power of Attorney. Power of Attorney is an instrument in writing where by one person as principal appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of the principal. It is a document which may be under seal, that authorizes a person to act for another person as his agent. The person who donates the power is called ‘donor’ while the person to whom it is donated is called ‘donee’. The power conferred on the donee may be either general or special. The fact that a Power of Attorney was given by the donor of the power to alienate the property does not divest the donor the power to deal with the property so long as the donee had not exercised such power. In CHIME & ORS V. CHIME & ORS. (2001) LPELR- 849 (SC) the apex Court per WALI, JSC, held as follows:
“The fact that a Power of Attorney was given by the fourth Respondent (who is the donor) of his power to alienate the property does not divest the donor of the power to deal with the
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property so long as the first Respondent (the donee) had not exercised such power. (See Gregory Obi Ude V. (1) Clement Nwara (2) AG Rivers State (1993) 2 NWLR (Pt. 278) 638 at 664 and 665;Ajuwon V. Adeoti (1990) 2 NWLR (Pt.132) 271 at 222 and 294, and Oshola V. Finnih (1991) 3 NWLR (Pt.178) 192 at 197).”
It logically follows therefore that since Mr. Chukwunwike Iloka (aka Akadike) of No. 26 Omeagana Street, Odoakpu, Onitsha can no longer represent the Respondent and his interest in the legal proceedings between him and the Appellant due to his demise, it does not divest the donor i.e. the Respondent, the power to represent himself in the suit as long as the donee (Mr. Iloka) is no longer alive to represent him. See: ALHAJI A.B. ABUBAKAR V. ALHAJI ABUBAKAR DANIYA WAZIRI & OTHERS (2008) LPELR 54 (SC) per ADEREMI, JSC.
The mere fact that a power of Attorney confers, transfers, limits, charges or alienate any title to the donee is not per se an alienation or parting with possession. So it is categorized as a document of delegation. In GREGORY OBI UDE V. CLEMENT NWARA & ORS (1993) LPELR-3289 (SC). The Supreme Court held as follows per
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NNAEMEKA-AGU, JSC:
“A power of Attorney merely warrants and authorizes the donee to do certain acts in the stead of the donor and so it’s not an instrument which confers, transfers, limits, charges, or alienates any title to the donee; rather it could be a vehicle where by these acts could be done by the donee for and in the name of the donor to a third party. So even if it authorizes the donee to do any of these acts to any person, including himself, the mere issuance of such a power is not per se an alienation or parting with possession. So far, it is categorized as a document of delegation…”
It is my finding that the submission by learned counsel to the Appellant that the death of the donee of Power of Attorney deprives the lower Court of jurisdiction to hear the suit is a misconception of the law since the donor of the said Power of Attorney who is the Respondent is alive and is actively pursuing his right to the property in dispute. The donee was exercising power by virtue of the delegation to him of such powers by the donor. I therefore find it necessary to distinguish the authorities cited and relied upon by the
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Appellant as they are inapplicable in this suit. In fact in NZOM & ANOR V. S.O. JINADU(supra) cited and relied upon by the Appellant the Supreme Court pronounced on the capacity of a dead person to sue or be sued in an action when APUTA, JSC, (of blessed memory) held thus:
“…dead men are no longer persons in the eye of the law. The personality of a human being is extinguished by his death. A dead man cannot therefore represent the family of another dead man especially when as in this case, Patrick Nzom died 22 years before J.C. Nzom. The position is that a Writ issued on 10/2/73 against Patrick Nzom who died in 1949, that is, 21 years before the trespass complained of, the Writ is null and void.”
I therefore resolved these 2 issues against the Appellant.
It is my judgment that this appeal lacks merit. It is hereby dismissed. The judgment delivered on 4th June, 2014 by the lower Court in suit No. HN/33/2009 is affirmed by me. The Respondent is entitled to cost which I assessed at Two Hundred Thousand Naira (N200,000.00) only.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My lord, B.G SANGA, JCA, obliged me with the
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draft of the lead judgment just delivered. I agree with his lordship that this appeal being unmeritorious should be dismissed.
Accordingly, I hereby enter an order dismissing the appeal and affirm the judgment of the trial Court in Suit NO. HN/33/2009.
I abide by the order as to costs made by Sanga, JCA in the lead judgment.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal. The judgement of the Court below in HN/33/2009 is hereby affirmed by me.
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Appearances:
V.C EZEWUDO, Esq. For Appellant(s)
C.N. OLUIGBO, Esq. For Respondent(s)