EMERGING MARKETS TELECOMMUNICATION SERVICE LIMITED & ORS v. ALHAJI YISAU OBISESAN (2019)

EMERGING MARKETS TELECOMMUNICATION SERVICE LIMITED & ORS v. ALHAJI YISAU OBISESAN

(2019)LCN/13906(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2019

CA/AK/178A/2017

RATIO

PROPERTY LAW: DECLARATION OF TITLE TO LAND: PLAINTIFF REQUIRED TO IDENTIFY LAND WITH PRECISION

The law is that for a plaintiff seeking a declaration of title to land and injunction must establish the identity of the land in dispute with precision. This can be established by the party tendering a survey plan that will guide a surveyor using his description to produce a survey plan therefrom. See NWOKIDU V. OKANU (2010) 3 NWLR (PT. 1181) 362; AYANWALE V. ODUSAMI (2011) 18 NWLR (PT. 1337) 140 and OGU V. ATUMA (2012) 11 NWLR (PT. 1364) 117. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

PROPERTY LAW: DECLARATION OF TITLE TO LAND:DEFENDANT REQUIRED TO SPECIFICALLY DISPUTE THE AREA, SIZE OR LOCATION

For the identity of the land in dispute to be an issue in any action, a defendant must in his statement of defence specifically dispute either the area or size or location of the disputed land as shown in the plan or as described in the statement of claim. See ANYANWU V. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 and TANKO V. ECHENDU (2010) .. NELR (PT. 1224). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

EVIDENCE: DUTY OF TRIAL COURT AS REGARDS EVIDENCE

The trial Court is empowered by law to consider whether the evidence is admissible, relevant, credible or more probable than that given by the other party. See OYEWOLE V. AKANDE (2009) 15 NWLR (PT. 1163) 11; AGALA V. OKUSIN (2010) 10 NWLR (PT. 1202) 412 and NWOKIDU V. OKANU (SUPRA). The law empowered a trial Court with the primary duty to evaluate material and relevant evidence both oral and documentary after hearing and watching the demeanour of witnesses having regard to their pleadings. It appraises evidence by placing it on an imaginary scale of justice on the two sides of the scale and weighs it to determine which one is heavier in terms of qualities of the testimonies of the witnesses called by the feuding parties. See ADUSEI V. ADEBAYO (2012) 3 NWLR (PT. 1288) 534; NDULUE V. OJIAFOR (2013) 8 NWLR (PT. 1356) 311 and OYEWOLE V. AKANDE (SUPRA). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

PRACTICE AND PROCEDURE: A PARTY CANNOT APPROBATE AND REPROBATE AT THE SAME TIME

It has always been the law that a party may not approbate and reprobate at the same time in the conduct of his case. See FRN V. IWEKA (2013) 3 NWLR (PT. 1341) 285. The respondent has proved with credible evidence his ownership of the disputed land. In law proof of ownership is tantamount to proof of possession. See OLANIYAN V. FATOKI (2013) 17 NWLR (PT. 1385) 477 and AYANWALE V ODUSAMI (2011) 18 NWLR (PT. 1278) 328. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

DAMAGES: HOW THE COURT WILL EVALUATE AND ESTIMATE DAMAGES

Indeed, a party whom a Court has established has been wronged as in the instant case, is entitled to damages which the Court will assess as flowing from the wrong he has suffered. See NBC PLC V. UBANI (2014) 4 NWLR (PT. 1379) 241. The law is that award of damages is purely within the powers of the trial Court. It has the powers to award damages for wrongs done. Equally too, an appellate Court can vary the award or amend same where shown to be perverse. See AHMED & ORS V. CBN (2012) 7 SC (PT. II) 1 andCHUKWUANU V. UCHENDU & ORS (2016) LPELR 41022. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

1. EMERGING MARKETS TELECOMMUNICATION SERVICE LTD.
2. OBA JAMES ADEDOKUN ADEGOKE
(Apetumodu of Ipetumodu)
3. PRINCE ISAAC ADEGOKE Appellant(s)

AND

ALHAJI YISAU OBISESAN Respondent(s)

RIDWAN MAIWADA ABDULLAHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Osun State sitting at Ile-Ife Judicial Division delivered by Hon. Justice A. D. Oladimeji on 24th day of January, 2017. Before the lower Court, the appellants and the respondent were the defendants and the plaintiff respectively.

By paragraph 25 of the 2nd Amended Statement of Claim, the respondent as plaintiff claimed the following reliefs:
1. A declaration that the plaintiff who is the owner and in physical possession is the one entitled to the Statutory/Customary right of occupancy of the acre of land measuring 225 feet by 265 feet surrounded on the sides by Ife/Ibadan Road, Samson Gbensoye?s land, Oyebisi Oyewole?s land and Samson Gbensoye?s land situate, lying and being at Gbagogbaga or Gborogboro Area, near Ishasha river, Ipetumodu Ife North Local Government council Area of Osun State.
2. An order for immediate surrender of possession of the said land by the Defendants to the plaintiff.
?3. An order of perpetual injunction restraining the defendants, their agent and privies from further erection of mast or carrying any activity on the said plaintiff?s land or restraining the defendants from further use of plaintiff?s land without concrete and proper negotiation with the plaintiffs.
4. General and special damages of 3 Million Naira in favour for the damages done to his land by the defendant.
?
In proof of his case, the plaintiff testified as PW3 and called three more witnesses and tendered some documents in evidence. The plaintiff testified that he in 1977 purchased an acre of land (the land in dispute) measuring 225 feet by 265 feet situate at Gbagogbaga or Gborogboro village, near Ishasha river, Ipetumodu from one Mr. Oyebisi Oyewole which was allotted to him by his family Aroye family of Ipetumodu. That the land is bounded by Ife/Ibadan Road, Samson Gbensoye?s land, Oyebisi Oyewole remaining land and Samson Gbensoye?s land. That the purchase was evidenced by a land agreement admitted as Exhibit A. he testified that he build three shops on one side of the land leaving other parts for future development/and a survey plan in respect of the land was tendered and admitted as Exhibit E. that the 1st defendant unlawfully trespassed unto the land by erecting a communication mast. That upon realizing the trespass by the 1st defendant, he went to the 2nd defendant as the paramount ruler of the Area who initially denied knowing the presence of the 1st defendant on the land. That thereafter he caused his solicitor to write to the 1st defendant. The letter was exhibited as Exhibit C and in response to Exhibit C, the 1st defendant wrote Exhibit D. therein he pleaded that the plaintiff should give him time to investigate the issue. Thereafter the 1st defendant claimed that the land was leased to him by one Hon. Akinyoade Johnson Oluwafunminiyi who was latter joined as a 2nd defendant by the 1st defendant. Thereafter, the 2nd defendant filed his statement of defence denying the ownership of the land in dispute premised upon this, the 2nd and 3rd appellants introduced their family as the owner of the land in dispute and stood as the representative of their family. PW1 testified that he knows the location of the land in dispute to be at Gbagogbago or Gborogboro and that the family land of the 2nd defendant is at Iwaro and not at Gbagogbago. PW2 Tijani Bolarinwa a carpenter testified that he did the roofing of the plaintiff?s three shops on the disputed land. He testified under cross examination that he was a witness to Exhibit A and that the plaintiff bought the land through him, he gave the location and the boundaries of the land as stated by the plaintiff. He also testified that he knows the two villages Gbagogbago and Iwaro as two distinct villages. That the plaintiff?s land is distinct with that of the defendants.

As expected the defendants appellants denied the plaintiff?s claim. In a considered judgment delivered on 24th January, 2017 the learned trial judge granted the plaintiff?s claims.

Dissatisfied with the decision, the 2nd and 3rd appellants filed a Notice of Appeal containing four grounds of Appeal dated 2nd day of March, 2017 seen at pages 529-532 of the record, and prayed this Court to set aside the judgment of the trial Court. Thereafter, the parties filed and exchange their briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 28th February, 2019.
?
During the hearing of the appeal, learned counsel for the 2nd and 3rd appellants A. O. Adedeji, Esq. adopted the appellant?s brief of argument, dated 15th August, 2017 and filed on 17th August, 2017 as representing his arguments for the appeal. He urged the Court to allow the appeal and set aside the lower Court judgment.

Learned counsel for the respondent, I. O. Adediran Esq. adopted the respondent?s brief of argument dated 15th November, 2018 and filed on 16th November, 2018 but deemed properly filed on 26th February, 2019, as his reactions against the appeal. He urged the Court to dismiss it and affirm the judgment of the lower Court.

Learned counsel for the 2nd and 3rd appellants, in his brief of argument formulated three issues for determination to wit:
1. Whether the land in dispute is certain.
2. Whether by the evidence both oral and documentary, given in Court by the parties the plaintiff is entitled to judgment.
3. Whether the plaintiff has proved the ownership of the land in dispute.

Learned counsel for the respondent, distilled four issues for determination as follows:
1. Whether the land in dispute is certain
2. Whether by the evidence (both oral and documentary) given in Court by the parties, the plaintiff is entitle to judgment as delivered by the trial Court.
3. Whether the Plaintiff/Respondent has proved trespass and therefore entitled to damages and injunction.
4. Whether the Plaintiff/Respondent has proved the ownership of the land in dispute.

A close look at the two sets of issues shows they are identical in substance. The respondent?s issues can, conveniently be subsumed under the appellants?. For this reason of sameness, the appeal will be decided based on the issues formulated by the appellants, the owners of the appeal. Furthermore, the appellants? issues one and three are same, I therefore merged them together as one. In my view, the following two issues will meet the justice of the case and they are;
1. Whether the land in dispute is certain.
2. Whether by the evidence before the Court the plaintiff has proved his case to be entitled to judgment.

ISSUE ONE
Learned counsel for the 2nd and 3rd appellants submitted that based on the totality of the evidence before the lower Court, the respondent had not established the identity of the land in dispute. That the plaintiff/respondent stated that the land is situate, lying and being at Gbagogbaga or Gborogboro near Ishasha river and identified its boundaries and relied on Exhibits A and E, the land agreement and survey plan. Counsel submitted that the 2nd and 3rd appellants? land is situate at Iwaro along Ife, Ibadan express way, Ipetumodu and relied on lease hold agreement Exhibit H. that the 2nd and 3rd Appellants? land not the same with the land in dispute.

He argued that where the identity of the land is put in issue, the claimant has the burden of proving the identity of the land. That the 2nd and 3rd Appellants had joined issue on the certainty of the land. That the effect of Respondent?s failure to prove the identity of the land is dismissal. He urged the Court to resolve this issue in favour of the appellants.

Learned counsel for the respondent submitted that the land in dispute is certain. That the lease agreement between the 1st appellant and Hon. Oluwafunminiyi and the one between the 1st appellant and the 2nd and 3rd appellants are bogus. That the lower Court was right in rejecting the appellants? exhibits regarding the location of the land and the lease thereof. He urged the Court to resolve this issue in favour of the respondent.

ISSUE TWO
Learned counsel for the appellants submitted that the Court should not attach any value to the evidence adduced by the respondent. That the claim of the respondent hinges on Exhibit A. the land agreement: that before a sale of land under Customary Law can be valid, payment of purchase price and handing over must be in the presence of at least two witnesses. He cited ELEMA V. AKENZUA (2000) 6 SCNJ 226 and ADESANYA V. OTUEWU (1993) SCNJ 77 for the view.

That the respondent was asking for a declaration that he was entitled to the statutory right of occupancy on the land in dispute. That the relief sought is defective as a statutory right cannot be granted on a farmland.

Counsel argued that the respondent is not entitled to general damages as he was never in possession. That a claim of damages can only be granted for a person in possession. He cited BABATOLA V. ALADEJANA (2001) 6 SCNJ 146 for the view. That special damages must be specifically pleaded and itemised. That the respondent had failed to prove the special damages. Counsel referred to the case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 for the five ways of proving ownership to land and submitted that none of the ways was established by the respondent. That the respondent failed to prove his case on the balance of probabilities. He urged the Court not to attach probative value to the evidence both oral and documentary and urged the Court to allow the appeal and set aside the judgment of the trial Court.

Learned counsel for the respondent submitted that going by the evidence before the Court, the respondent is entitled to judgment. That the respondent had proved exclusive possession of the land in dispute. That the appellant did not denied erecting the telecommunication mast. That the erection of telecommunication mast on the land in dispute by the appellants is a trespass to the respondent possession. Therefore, said counsel the respondent is entitled to general damages and that trespass is actionable per-se. learned counsel submitted that though the Idundun?s case enjoins a plaintiff to establish one of the five ways of proving title to land. The respondent herein as plaintiff had proved three out of the five ways. That is by production of title documents duly authenticated and executed, act of ownership and long possession. He urged the Court to resolve this issue in favour of the respondent and dismiss the appeal.

RESOLUTIONS OF THE ISSUES
ISSUE ONE
The law is that for a plaintiff seeking a declaration of title to land and injunction must establish the identity of the land in dispute with precision. This can be established by the party tendering a survey plan that will guide a surveyor using his description to produce a survey plan therefrom. See NWOKIDU V. OKANU (2010) 3 NWLR (PT. 1181) 362; AYANWALE V. ODUSAMI (2011) 18 NWLR (PT. 1337) 140 and OGU V. ATUMA (2012) 11 NWLR (PT. 1364) 117.

In the instant case, the respondent solicits for a declaration that the plaintiff is the owner and in possession of the disputed land and therefore entitled to the statutory right of occupancy among other reliefs. Certainly, it behoves the respondent to identify the disputed land with precision. In a bid to discharge this onus probandi, the respondent pleaded the boundaries of the disputed land and backed it with a survey plan to identify it with precision and led credible witnesses thereof. The appellants did denied and or put the identity of the disputed land in issue. The 1st appellant as DW1 only claimed that the plaintiff is not the owner of land in dispute leased to 1st defendant. That the land was leased to her by one Akinyoade Johnson Oluwafunminiyi. Thereafter the 2nd and 3rd defendants/appellants whom were later joined as co-defendant only claimed that they are the owners of the disputed land and that they leased same to the 1st defendant and not Akinyoade Oluwafunminiyi as earlier claimed by the 1st defendant. The parties are ad idem with the boundaries of the land, without any specific protest to its location and dimension. They merely claimed that their land is at Iwaro without proving same. The appellants in my view could not be heard to protest the identity of the land in dispute before this Court. The parties by the pleading and the credible evidence before the Court are one on the identity of the land in dispute. The appellants? argument that the identity of the land in dispute was not proved flies in the face of the law.

The respondent has discharged with certainty the identity of the land he is claiming and I so hold. It will be a judicial sacrilege to interfere with a finding that is not hostile to the law. Issue one is resolved against the appellants and in favour of the respondent.

ISSUE TWO
The appellants? chief grievances under this issue is that the respondent failed to prove his case on the balance of probabilities that none of the five ways of proving title/ownership was established. A castigation that a decision of a Court is against the weight of evidence connotes that the decision cannot be supported by the weight of evidence adduced which the Court either wrongly accepted or that the conclusion it reached is unjustifiable in law. It also connotes that when co-evidence adduced by the appellant is weighed against that of the respondent, the judgment given to the respondent is against the totality of the evidence adduced before the Court. The trial Court is empowered by law to consider whether the evidence is admissible, relevant, credible or more probable than that given by the other party. See OYEWOLE V. AKANDE (2009) 15 NWLR (PT. 1163) 11; AGALA V. OKUSIN (2010) 10 NWLR (PT. 1202) 412 and NWOKIDU V. OKANU (SUPRA).

The law empowered a trial Court with the primary duty to evaluate material and relevant evidence both oral and documentary after hearing and watching the demeanour of witnesses having regard to their pleadings. It appraises evidence by placing it on an imaginary scale of justice on the two sides of the scale and weighs it to determine which one is heavier in terms of qualities of the testimonies of the witnesses called by the feuding parties. See ADUSEI V. ADEBAYO (2012) 3 NWLR (PT. 1288) 534; NDULUE V. OJIAFOR (2013) 8 NWLR (PT. 1356) 311 and OYEWOLE V. AKANDE (SUPRA).

I have perused the record the spinal cord of the appeal and equally gone through the evidence placed before the Court by the feuding parties and merged it with the findings of the lower Court. I am in total agreement with the unbiased evaluation of the evidence done by the lower Court. The respondent as claimant at the lower Court in proof of his case testified for himself and called more three witnesses. The respondent as PW3 testified that he purchased the disputed land in 1977 from one Oyebisi Oyewole, he tendered document in that respect and gave an uncontradicted evidence of the four sides of the boundaries. PW2 a carpenter testified that he did the roofing of the three shops built by the respondent on the land which was not contradicted by the appellants, he identified the four boundaries of the land and that the defendants/appellants? land is different from plaintiff?s land. DW1, Doris Chukwuma, the site acquisition supervisor of Etislat Nig. Ltd. testified that the land was leased to them by the 2nd defendant. DW2 testified that he and 3rd defendant leased the disputed land to the 1st defendant. The 1st defendant initially claimed that the land was leased to him by one Hon. Akinyode and later claimed that it was 2nd and 3rd defendants that leased the land to him which necessitated the joinder of the 2nd and 3rd defendants. The learned trial judge after evaluating the evidence before the Court held at pages 524-525 of the record that Another serious question is why would 1st defendant claim that he got a lease from one Hon. Akinyode Johnson Oluwafunminiyi and only to soft pedal later to claim that they got the lease from 2nd and 3rd defendants. Why were they blowing hot and cold, why would 1st defendant not be able to point at the correct lesser at once even when they got to Court. If it is true that Exhibits G, H and J have being with the 1st defendant since they were executed in 2010, why would they apply to join Hon. Akinyoade John Oluwafunminiyi, as their lesser, name is in no way reflected in those exhibits?. I therefore, hold that the land in dispute was at no time in the possession of the 2nd and 3rd defendants, you cannot give what you do not have. I hold that the 2nd and 3rd defendants cannot legally lease the land in dispute to the 1st defendant?. The above finding of the lower Court is quite unassailable. I so hold.

On the issue of the damages awarded by the lower Court, the learned trial judge held at pages 525-527 thus:
plaintiff?s case succeed in the following terms:
Reliefs 1 is granted.
..
2. ?.
3. N200, 000.00 damages against the 1st defendant and in favour of the plaintiff.
It is clear from the above excerpt that the damages granted was general damages. It was outside the perimeter of special damages which must be specifically pleaded and proved. I therefore disagree with the submission of the appellants that the lower Court awarded special damages. Indeed, a party whom a Court has established has been wronged as in the instant case, is entitled to damages which the Court will assess as flowing from the wrong he has suffered. See NBC PLC V. UBANI (2014) 4 NWLR (PT. 1379) 241. The law is that award of damages is purely within the powers of the trial Court. It has the powers to award damages for wrongs done. Equally too, an appellate Court can vary the award or amend same where shown to be perverse. See AHMED & ORS V. CBN (2012) 7 SC (PT. II) 1 andCHUKWUANU V. UCHENDU & ORS (2016) LPELR 41022. In the instant case, the appellants failed to show that the award of the damages by the lower Court was/is perverse. I resolve this issue against the appellants and in favour of the respondent.

Having resolved the two issues in this appeal against the appellants, the appeal is devoid of any merit. I dismiss the appeal and affirm the judgment of the lower Court delivered on 24th January, 2017 by Hon. Justice A. D. Oladimeji in Suit No: HIF/12/2012. I make no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now the leading judgment of my learned brother Ridwan M. Abdullahi, JCA in this appeal and join in dismissing the appeal.
I adopt the reasoning on the issue as resolved as mine.
I abide by the consequential order on costs as made.

PATRICIA AJUMA MAHMOUD, J.C.A.: My learned brother, RIDWAN MAIWADA ABDULLAHI, JCA obliged me an advance copy of the lead judgment just delivered. I completely agree with the reasoning and conclusion therein that the appeal lacks merit. The judgment of the lower Court is hereby affirmed. Appeal is dismissed. Each party to bear its own cost.

Appearances:

O. A. Orawale for the 1st Appellant.
A. J. Awominure for the 2nd and 3rd Appellant.For Appellant(s)

Oyegbemi AdediranFor Respondent(s)

Appearances

O. A. Orawale for the 1st Appellant.
A. J. Awominure for the 2nd and 3rd Appellant.For Appellant

AND

Oyegbemi AdediranFor Respondent