FRANCIS EDOBOR V. NOSAKHARE OLOTU & ANOR.
(2012)LCN/5805(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of May, 2012
CA/B/245/2004
RATIO
LAND LAW: WAYS OF PROVING TITLE TO LAND
It is the law that, in an action for declaration of title to land, just like the instant case, a party must prove title to the piece of land by any of the following five ways:
(a) traditional evidence; or
(b) production of documents of title; or
(c) various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership; or
(d) acts of long enjoyment and possession of the land; or
(d) proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would, in addition, be the owner of the disputed land.
See the cases of: (1) Idundun v. Okumagba (1976) 9 – 10 S.C. p. 227; (2) Okafor v. Idigo (1984) 1 SCNLR p. 481; (3) Atanda v. Ajani (1989) 3 NWLR (Pt. 111) p.511 and (a) Usman v. Joda (1998) 13 NWLR (Pt. 582) p.374. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
DAMAGES: GOVERNING PURPOSE OF DAMAGES
It is settled that damages are monetary compensations for loss or injury to a person or property. Damages are therefore the sum of money received from a wrongdoer as compensation*for the wrong done. Hence, the governing purpose of damages, whether special or general damages, is to put the party whose rights have been adjudged violated, in the same position, restitution in integrum, so far as money can do as if the rights have been observed. See the cases of (1) G.Chitex Ind. Ltd. V. O.B.I. (Nig) Ltd. (2005) NSLR (Pt. 2) P. 192; (2) Omonuwa v. Wahabi (1976) 4 S.C. P.37 and (3) Idahosa v. Oronsanya (1959) 4 F.S.C. P. 166. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
DAMAGES: REQUIREMENT OF THE LAW FOR SPECIAL DAMAGES
The requirement of the law is that, where the claim is that for special damages as it is in this case, it must be pleaded with particularity and proved strictly by the claimant, as special damages can not be presumed by the court. See the cases of: (1) Iyere v. Bendel Feeds & Flour Mill Ltd. (2009) 3 W.R.N. P. 139(2) Onuyale v. Macaulay (2009) 7 NWLR (Pt. 1141) P.597; (3) Leventis (Nig.) Plc. V. Akpu (2007) 17 NWLR (Pt. 1063) P. 416; (4) Nwobosi v ACB Ltd. (1995) 6 NWLR (Pt. 404) P. 658 and (5) Onuwuka v. Omogui (1992) 3 SCNJ P.98. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
DAMAGES: WHAT IS ASSESSMENT OF DAMAGES BASED ON
It is settled law that assessment of damages is based on both pleadings and evidence adduced in support of pleadings. Therefore, where there is no evidence to support a claim for damages, the claim must be dismissed. See the cases of: (1) Int’l Messengers Nig. Ltd. v. Nwachukwu (2005) 1 FWLR (Pt. 252) P.264 and (2) W.A.E.C. v. Kotoye (1977) 2 S.C. P.45. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
ACTION: NATURE OF CONSOLIDATION OF ACTIONS
lt is established that consolidation of actions is the process whereby two or more separate actions pending in the same court are joined and tried together at the same time, to save costs and time. Equally is the law that in consolidated actions, the burden of proof lies on the plaintiffs in each suit. Each plaintiff must discharge his own onus. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
FRANCIS EDOBOR Appellant(s)
AND
1. NOSAKHARE OLOTU
2. PAUL OLOTU Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A., (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State sitting in Benin City in Suit Nos. B/18/92 and B/175/92 delivered on 11th July, 2001 dismissing the claims of the plaintiff who is the Appellant in this appeal.
The brief facts of this matter according to the Appellant are that, in 1975, the Appellant bought the portion of the land, the subject-matter of this appeal, from the children, the administrators of the estate of late Jackson Uyigue. He had been farming on the land until sometime in 1992 when he discovered that the 1st Respondent was building a structure on the land. When confronted, the 1st Respondent told him that he, that is, the 1st Respondent had been issued a certificate of occupancy in respect of the land. The Appellant filed the action, the subject-matter of this appeal for a declaration of title to the land. On the other hand, the 1st Respondent laid claim to the ownership of the disputed land. That he bought it from Jackson Uyigue in 1974. He also filed an action against the Appellant. The two actions were duly consolidated. In prove of his claims, the Appellant testified along with three additional witnesses and tendered exhibits. While the 1st Respondent also in a bid to establish his claims testified, called four witnesses and tendered exhibits. At the close of trial, the lower court gave judgment in favour of the 1st Respondent.
Being dissatisfied with the judgment, the Appellant appealed to this Court vide his original notice and grounds of appeal dated 17th July, 2001 which was filed on 18th July, 2001. The said notice and grounds of appeal with an omnibus ground of appeal is contained in pages 243 to 244 of the record of appeal.
By the order of this Court granted on 22nd September, 2008, the Appellant was granted leave to amend his notice and grounds of appeal by filing seven additional grounds of appeal.
In the Appellants brief of argument dated 15th April, 2010 which was filed on 16th April, 2010, five issues were distilled from the total eight grounds of appeal, for determination. The issues are:-
1. Whether the learned trial Judge was right in considering the consolidated suits as one rather than treat them as distinct and separate as requiem by law in the judgment?
2. Whether it is not a breach of the right of fair hearing of the Appellant when the learned trial Judge did not consider his case?
3. Whether from the claim, materials and evidence before the Court, the Court was right when it declared that the 1st Respondent (Nosakhare Olotu) is the rightful owner and beneficially entitled to that piece of land covered by certificate of occupancy No. BDSR11148?
4. Whether from the entire evidence before the Court, the Court was right in the judgment it gave?
5. Whether the learned trial Judge was right in awarding the sum of N50,000 as special damages against the Appellant when the same was not proved as required by law?
The learned senior counsel for the Respondents O.A. Omonuwa SAN in the Respondents’ brief of argument dated 21st April, 2010, and filed on 23rd April, 2010 formulated three issues for the determination of this appeal. The three issues are:
1. Whether in the course of the trial and subsequent judgment in the consolidated suits, the learned trial Judge failed/or neglected to appreciate the distinctiveness of the suits filed by the Appellant and the Respondents in suit Nos. B/18/92 and B/175/92 respectively?
2. If the answer to the aforesaid is answered in the negative, whether such a failure has led to a miscarriage of justice in this case?
3. Whether the defendant in consolidated suits (now respondent) did not prove a better title to the land in dispute, thus entitling him to the reliefs granted by the Honourable trial Judge?
When the appeal was heard by this Court, the learned counsel for the Appellant, Chief H.O. Ogbodu in urging this Court to allow the appeal, adopted and relied on both the Appellant’s brief and the Appellant’s reply brief of argument. Contrariwise, the learned counsel for the Respondents, Mr. J.O. Odion adopted and relied on the Respondents’ brief of argument; it was his opinion that the appeal lacks merit and he urged this Court to dismiss same.
Upon due consideration of the issues formulated for determination by the parties, learned counsel, it is my view that three issues call for consideration in the determination of the appeal. These are:
(1) Whether the lower court considered the claim of the Appellant per his writ of summons and statement of claim with due deference to his right to fair hearing?
(2) Whether the lower court rightly declared the 1st Respondent the rightful owner and beneficially entitled to the parcel of land covered by Certificate of Occupancy No. BDSR11148?
(3) Whether the lower court was right in awarding the sum of fifty thousand naira (N50,000=) as special damages against the Appellant?
I shall now proceed to adopt and consider the three issues seriatim.
ISSUE ONE
(1) Whether the lower court considered the claim of the Appellant per his writ of summons and statement of claim with due deference to his right to fair hearing?
The learned counsel for the Appellant submitted that, the learned trial Judge was in grave error when he considered the consolidated suits as one rather than treat them as distinct and separate. According to him, consolidation of actions facilitates joinder and trial of two or more pending actions at the same time. However, the actions so joined persist in their separateness and distinctiveness inspite of the simultaneous trial in a single proceedings. Consequently, the judgment in a consolidated action must be given in respect of each action at the end of the common trial. The distinctiveness of each suit is further emphasized by the principle that each case must be individually proved. Hence, evidence in proof of one case would not necessarily constitute evidence in proof of the other(s). On this submission, he referred to the cases of: (1) Ume v. Ifediora (2001) 8 NWLR (Pt. 714) p.35 at p. 43 paras. D – E: (2) Attah v. Nnacho (1965) NMLR p. 28 and (3) Oro v. Falada (1995) 5 NWLR (Pt. 396) p. 385.
He argued that the trial court did not consider the case of the Appellant in Suit No. B/18/92, rather it only treated the 1st Respondent’s case in Suit No. B/175/92 and arrived at a one sided judgment. By this, the Appellant was denied his right to fair hearing as guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999. It was his further contention that the lower court did not resolve the case of the Appellant in Suit No. B/18/92 one way or the other as can be seen in the judgment being appealed.
On the other side, the Respondents’ learned senior counsel argued that, it is not correct that the trial court failed to treat the claims in suit Nos. B/18/92 and B/175/92 as two distinct suits. He referred to pages 66 to 151 of the record of proceedings, wherein evidence was led on behalf of the parties in the consolidated suits. The parties presented their cases clearly and distinctively, by leading evidence in proof of their respective claims for declaration of title over the same parcel of land. Both parties in their evidence traced their root of title to a common grantor. Thus the claims though distinct and consolidated were supported by the same shred of pleadings and evidence and at no time was either party misled on the true nature of their respective claims before the court. Further, counsel for both parties in the consolidated suits addressed the court and referred to the pleadings and evidence led by both parties in support of their respective distinct claims, he referred to pages 185 to 207 of the record. That consequently, in its judgment at pages 208 to 235 of the record, the trial court Judge evaluated the evidence of both parties as they related to their respective claims for a declaration of title to the parcel of land in dispute.
It was contended by learned senior counsel that the fact that the trial Judge did not specifically refer to the separate suit numbers in her analysis and evaluation of evidence in the consolidated suits is not fatal. That this would not amount to a denial of fair hearing to the Appellant because the Appellant was duly represented by a counsel who settled pleadings in the consolidated suits and led evidence through PW1 to PW3, who testified in proof of his claim in suit No. B/18/92 and defence to the Respondents’ claim in suit No. B/175/92. At the close of evidence, counsel to both parties addressed the court. The trial court evaluated the evidence proferred by both parties.
The learned senior counsel submitted that upon consolidation, two or more suits assume a new character, giving the trial Judge the power to treat them together and be seised of the issues involved in the consolidated suits. He relied on the cases of: (1) Alaribe v. Nwankpa (1999) 4 NWLR (Pt.600) p.551 at p.560, paras B – C; (2) Ishyaku v. Master (2003) 5 NWLR (Pt.814) p.443 at p.464 paras. A – E. That the consolidated suits having been determined on the merit, the omission by the trial court to make pronouncement in respect of each of the two suits can be rectified by this Court in the exercise of its powers under Section 15 of the Court of Appeal Act, 2004. He urged upon this Court to therefore invoke its said powers to make the necessary pronouncement in suit no. B/18/92, in the interest of justice. He rested his submissions on the case of: Sawatu v. Ngah (1998) 13 NWLR (Pt.580) p.39.
In my well considered view, the main grouse of the Appellant under the issue is that because his suit was not given a distinct consideration at the lower court, his right to a fair hearing was denied thereby occasioning to him a miscarriage of justice. I have perused the record of appeal and found that, the Appellant filed his statement of claim by the order of the lower court on 23rd June, 1992 – see pages 33 to 39 of the record of appeal. At the close of the evidence of the witnesses for both parties, the learned counsel for the Respondents addressed the lower court and the learned counsel for the Appellant replied accordingly. The reply, which I call an extensive one can be found in pages 193 to 197 and 200 to 206 of the record. It is glaringly obvious from the printed record before this court that, not only was the Appellant given ample opportunity to present his case, regarding his claim in suit no. B/18/92, he amply took the opportunity. He testified personally, called witnesses and tendered exhibits in his quest to establish his claim. Fair hearing within the meaning of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or inquiry or investigation, conducted according to all rules formulated to ensure that justice is done to the parties in an action or matter. It is an indispensable requirement of justice that, an adjudicating authority, to be fair and just, shall hear both sides by giving them ample opportunity to present their cases. See the cases of: (1) Olumesan v. Ogundafa (1996) 2 NWLR (Pt. 433) p. 628 at pgs. 644 – 645 and (2) Onyekwuluje v. Benue State Govt. (20051 2 FWLR (Pt. 258) p. 1067. In the case of Onyekwuluje v. Benue State Govt. supra at p.1087, paras. B- E, Ogbuagu JCA, (as he then was) had the following to say:
Fair hearing, it is now settled, does not lie on the correctness of the decision handed down by a court or tribunal, but lies entirely in the procedure followed in the determination of the case. When a party who is entitled to be heard, is denied a hearing before a decision affecting him is made, then by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, that decision, cannot bind him. It does not matter whether the same decision would have been reached if he had been heard. Such decision must be set aside in an appropriate action, because in effect, it is null and void. See Prince Adigun & 2 Ors. v. Att.-Gen. of Oyo State & 18 Ors (1987) 3 SCNJ. 118 1 NWLR (Pt. 53) 678 and Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 652; (1989) 4 SCNJ 146 just to mention but a few.
See also the case of: Abubakar Poly v. Maima (2005) 2 FWLR (Pt’ 258) p. 1038.
Miscarriage of justice has been defined as, a departure from the rules which permit all judicial procedure that makes that which happened not “judicial procedure” at all, in the proper sense of the words. See the cases of: Devi v. Ray (1940) AC p.508 and (2) Osisanya v. Odugbesi (2005) 1 FWLR (Pt. 243) p.190.
In the case of: Osisanya v. Odugbesi supra at page 202 paras. E – G, Adekeye JCA (as he then was) restated the trite position of the law on the issue of miscarriage of justice thus:
A miscarriage of justice should be declared only when the court, after an examination of the entire case including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appealing party would has been reached in the absence of the error. However, not all errors result in miscarriage of justice. There is miscarriage of justice only where there are substantial errors in adjudication with the resultant effect that the party relying on such errors may likely have a judgment in his favour Amadi v. NNPC (2000) 10 NWLR (Pt. 6741 p.76 SC; AfriBank Nig. Plc. v. Shand (1997) 7 NWLR (Pt. 514) Pg. 601; Okonkwo v. Udoh (1997) 9 NWLR (Pt. 579) Pg. 16. SC.
The criticism by the Appellant of the judgment of the trial court that he failed outrightly to consider his own claim is most uncharitable. For, what the Appellant is saying in effect is that because the claim of the Respondents was declared a success, he, that is the Appellant, was denied fair hearing of his claim which suffered the fate of failure. To my mind, that is not the intendment of Section 36 of the Constitution. It is very well known and accepted that a judgment can be decided on more than one issue. The judge hearing the case will decide on the law and facts before him, the issues of facts and points of law he considers more in accord with the justice of the case before him. Failure of a judge to find in favour of a party without more will therefore not constitute a denial of fair hearing to him.
With due respect, I do not agree with the learned counsel for the Appellant that the rule of audi alteram partem was violated by the lower court. There is absolutely nothing in the printed record to support such a criticism. In the instant matter, there was consummate hearing of the case of the Appellant which was jointly conducted with that of the Respondents, with vivo voce evidence and tendering of documents. The question of the Appellant under this issue does not arise. This issue is consequently resolved against the Appellant and in favour of the Respondents.
ISSUE TWO
Whether the lower court rightly declared the 1st Respondent the rightful owner and beneficially entitled to the parcel of land covered by the Certificate of Occupancy No. BDSR11148?
The learned counsel for the Appellant contended that, the certificate of occupancy No. BDSR 11148 upon which the 1st Respondent is laying claim to the land in dispute, was wrongly admitted in evidence because the same is a public document and ought to be certified before it can be admitted in evidence. He referred to Sections of 109, 110, 111 and 112 of the Evidence Act 2004, the case of: Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) P.547 at P.571 para. A – E, and submitted that the said certificate of occupancy having been erroneously admitted in evidence ought to have been expunged from the record of court. Also that the learned trial Judge was under a duty to discountenance such evidence in his final determination of the case. According to the learned counsel for the Appellant, if the certificate of occupancy exhibit D5 is expunged, the entire case of the 1st Respondent will crumble. Having failed to do this, in law, this Court can and it was therefore urged upon so to do and accordingly dismiss the case of the 1st Respondent as it has no foundation to rest upon. On this stand, he relied on the cases of: (1) A. A. Chanchangi & Sons v. NRC Ltd. (1996) 5 NWLR (Pt. 446) P.46; (2) Okonji v. Njokanma (1999) 14 NWLR (Pt.638) p.250 and (3) Lambert v. Nigerian Navy (2006) 7 NWLR (Pt.980) p.514 at P.550.
It was further contended in favour of the Appellant that the learned trial Judge was wrong in holding that the 1st Respondent is the rightful owner of the land in dispute because the evidence on record does not support the position. For, the land in dispute is not the same as the one sold to the 1st Respondent. The evidence of DW3 the registered surveyor who testified for the 1st Respondent at pages 132 to 134 of the record was referred to, where under cross examination DW3 said that the land of the 1st Respondent is 1.6 kilometres apart from the land in the plan, exhibit P4, that is, the land of the Appellant in dispute. It would therefore not matter that the land in dispute is known to the parties, in as much as the plan which they tendered in court in proof of their respective claims are not speaking of the same land. Consequently, the Certificate of Occupancy, exhibit D5 which has annexed to it exhibit P4 could not confer title on the 1st Respondent. He referred to the case of: Imade v. Otabor (1998) 4 NWIR (Pt. 544) p.25 at p.35, in support of this argument.
Another contention of the Appellant was that on the face of exhibit D5, no reference was made to the previous lawful owner of the land in dispute. That since that fact was concealed, it means that exhibit D5 was fraudulently obtained and could not, confer any interest by way of title on the 1st Respondent. On this position, he relied on the cases of: (1) Ugo v. Gbotse (1995] 6 NWLR (Pt.401) P. 341 at p.334 paras. D – F and (2) Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) p.745.
It was the argument of the learned counsel for the Appellant that exhibit P9, the purported deed of transfer between the 1st Respondent and the original owner of the land in dispute, Jackson Uyigue was forged. When called upon, the lower court refused to compare the signature of the late Jackson Uyigue on exhibit P10, a conveyance between him and the Oba of Benin dated 4/1/72 with the purported certificate of transfer dated 28/4/74, exhibit D4. That this was a violation of Section 108 of the Evidence Act.
Responding under this issue, the learned senior counsel for the Respondent submitted as follows that, based on the preponderance of oral as well as documentary evidence proffered by the parties in proof of their respective cases, the 1st Respondent proved a better root of title over the land in dispute. The Appellant and the 1st Respondent had a common grantor. Ipso facto, it meant that the party that was to succeed was that party that proved a direct grant of title from the original grantor. The law is that, where two claimants trace their root of title to a common grantor, the first in time prevails. On this legal position, he relied on the cases of: (1) Adesina v. Afolabi (2001) 31 WRN p.159; (2) Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) and (3) Nigergate Ltd. v. Niger State Govt. (2005) 1 NWLR (Pt. 907) p.342 C- A.
The learned senior counsel referred to what he called the positive evidence of DW4 that the land in dispute was sold to the 1st Respondent by his father Jackson Uyigue in 1974 and that he signed the Deed of Transfer, exhibit P9, as a witness. DW4 confirmed the earlier transfer of the disputed land to the 1st Respondent. DW4’s testimony that the land sold to the Appellant was different from the one that was sold to the 1st Respondent was rightfully expunged by the learned Judge from the record of the lower court because that fact was not pleaded by the Appellant. That after the sale of the land to the 1st Respondent in 1974, the land no longer formed part of the estate of the late Jackson Uyigue and the administrators of his estate after his demise therefore did not have that land to sell to the Appellant in 1975. The simple applicable axiom in this regard is, nemo dat quod non habet. What is more, DW4 who was a principle actor in the purported sale of the disputed property to the Appellant, testified that the Appellant actually only paid four thousand naira (N4,000=) out of eighteen thousand naira (N18,000=) that was meant to be the purchase price of the parcel of land, thus making the transaction inchoate, This material fact was not controverted by the Appellant under cross examination. It is trite law that failure to cross-examine a witness on material facts in his testimony before court amounts to an admission of the facts. He rested this submissions on the case of: Njeokweymeni v. Ochei (2004) 15 NWLR (Pt. 895) p. 196 at p. 226. Accordingly, by exhibit P9, the Deed of Transfer and the Certificate of Occupancy exhibit D5, the 1st Respondent had proved a better title to the land in dispute. Exhibit D5 being an official document, the law presumes its regularity. He relied on the provisions of Section 146 of the Evidence Act and the case of: Ezeanah v. Attah (2004) 7 NWLR (Pt. 873) p. 458.
On the issue of the alleged discrepancy in the signature of the late Jackson Uyigue on exhibits P9 and P10, the learned senior counsel argued that this grievance is of no moment as it did not strike at the foundation of the Respondents’ case. According to him, a mere irregularity is not proof that the said signature was forged. He submitted that the issue of forgery being a criminal allegation must be subjected to the acid test of proof. This the Appellant failed to do in this case. Therefore a finding of fact that two signatures on exhibits P9 and P10 are different would not obviate the burden of proof placed on the Appellant to prove which of the signatures was genuine, which was forged and who caused the forgery of the fake signature.
In respect of the propriety of admitting exhibit D5, the learned senior counsel submitted that Section 112 of the Evidence Act provides for the certified true copy as the only admissible secondary evidence of a public document. And that this does not preclude the tendering of the original of a public document where such an original is available. A community reading of Sections 91(1) & (2) and 112 of the Evidence Act reveals that, a party can tender the original of a public document once he satisfies the requirements of Section 91(1) & (2), that is, if the party has personal knowledge of the subject-matter of the document in question and if it is or forms part of a record purporting to be a continuous record. On this legal position, he referred to the cases of: (1) Ebu v. Obun (2004) 14 NWLR (Pt. 892) p. 76 at p. 88; (21 Daggash v. Bulama (2004)14 NWLR (Pt.892) p. 144 at p. 208 paras. C – G and (3) Anatogu v. Iweka II supra. In the instant case, the Respondent had exhibit D5 in his custody as proof of his ownership and title to the land in dispute. The application for the issuance of exhibit D5 was prepared by him and in his name. He therefore had knowledge of the statements contained in it and having satisfied the requirements of Section 91(1) (a) of the Evidence Act, he was entitled to tender and the lower court was right to receive the original thereof in evidence.
I have given due consideration to the submissions of learned counsel for the parties along with the legal authorities relied upon by them in their respective briefs of argument. These include the Appellant’s reply brief of argument which is only a re-argument of the issues already submitted upon in the Appellant’s main brief of argument.
Before proceeding further, I will reproduce for easy reference, the relevant paragraphs of both the Statement of Claim of the Appellant and the 2nd Further Amended Statement of Claim of the Respondents respectively as follows:
STATEMENT OF CIAIM
3. The plaintiff avers that he is the owner and in possession of a piece of land situate and lying at Isiohor area ward 11/k Benin City within the Benin Judicial division. The said piece or parcel of land is bounded by Benin-Lagos Express Road, proposed Road, Car park and survey beacons Nos. MD 3816, MD 3817, MD 3811 No. OSA/2066/ED92 of 25/3/92 filed with this statement of claim wherein the entire land of the plaintiff is verged blue and the area trespassed upon by the defendant is verged orange. The plaintiff would found on the said plan at the trial of this action.
4. The plaintiff avers that the said piece or parcel of land was acquired by purchase from the administrators of the estate of late J.E. Uyigue as per agreement executed between Onaiwu Uyigue and Aimuamwosa Uyigue and Francis Edobor, the plaintiff dated 10/7/75. The plaintiff shall found on the said agreement dated 10/7/75 and/or as receipt for payment of the sum of N18,000.00 the receipt of which the sellers acknowledged in the said agreement. The plaintiff shall also rely on the receipt clause in the said agreement as evidence of payment of the said sum of N18,000.00 being the purchase price of the said land.
5. The defendants are Administrators of the estate of late Jackson Eriamiator Uyigue and they sold the said piece or parcel of land for the benefit of the estate.
6. The plaintiff avers that almost at the same time he purchased another piece of land in the same area from Onaiwu Uyigue one of the Administrator of the estate. The said area is verged green in the plan referred to in paragraphs 3 and 17 of the statement of claim.
7. The late Jackson Eriamiator Uyigue acquired a large piece or parcel of land according to Benin native law and custom and as per Deed of Conveyance executed between His Highness Akenzua II, the Oba of Benin and the said Jackson E. Uyigue dated 4/1/72. The area acquired by the plaintiff is a small portion of the said large piece or parcel of land.
8. The plaintiff says that before he bought the said piece or parcel of land the said Onaiwu Uyigue and Aimuomwosa Uyigue showed him the original copy of Deed of Conveyance dated 4/1/72 executed between His Highness Akenzua II, the Oba of Benin and Jackson Uyigue the original estate owner with the said Deed of Conveyance was registered as No. 5 at page 5 in volume 145 of the Lands Registry in the office at Benin City. The plaintiff shall found on certified true copy of the said deed of conveyance.
9. The plaintiff says that before he purchased the land the said Onaiwu Uyigue and Aimuomwosa Uyigue showed him the land and the beacons demarcating the land. There they found that the beacons numbers on the(sic) agreed with those on the Deed of Conveyance in respect of the said land.
10. The plaintiff having acquired the said piece or parcel of land took active possession of it and started to exercise right of ownership over the said land.
11. The plaintiff avers that in exercise of his right of ownership he cleared the area, Leveled it and planted corn, cassava and yam on it.
12. The plaintiff avers that he explored the services of licensed surveyor to survey it and produced a properly survey plan No. OSA/1859/BD89 of 30/6/87. The plaintiff shall found on the said survey plan at the trial of this action.
13. The plaintiff avers that he has had undisturbed possession and occupation of the said piece or a parcel of land without let or hindrance since he acquired it by purchase.
14. The plaintiff avers that he intends to develop the land as a petrol filling station.
15. The plaintiff avers that on or about January, 1992 or therefore the defendants by themselves, servants and/or agents without the consent, permission or authority of the plaintiff broke and entered unto the plaintiffs said piece or parcel of land and committed various acts of trespass thereon.
17. The whole area of the plaintiffs land is verged blue, and the area trespassed upon by the defendants is verged orange in the said plan No. OSA/2066/ED92 of 25/3/92, drawn by O. Evba. Osaikhuiwu, Licensed Surveyor filed with this statement of claim.
18. The plaintiff challenged the defendants for their presence and acts of trespass on the said land. The defendants turned deaf ears against the plaintiff’s protest and continued their acts of trespass on the said land. The plaintiff will at the trial of the suit give detail evidence of the acts of trespass committed by the defendants.
19. The plaintiff avers that when he challenged the defendants as being on the land they said that they purchased the land in dispute from late Jackson E. Uyigue and that they have obtained certificate of occupancy. The plaintiff shall lead evidence to show that the area where the defendants said they have obtained certificate of occupancy if at all does not relate to the land in dispute.
20. The plaintiff avers that consequent upon the said acts of trespass committed by the defendants he reported the defendants to Nigeria police, Benin City. The Police advised the plaintiff to take civil action. The defendants were warned to stay clear from the said piece or parcel of land. The plaintiff initiated this action and applied for and obtained orders of this honourable court for interim and interlocutory injunctions.
21. The plaintiff has as a result of the defendants acts of trespass suffered damages and the proposed use of the entire parcel of land by the plaintiff was completely affected.
22. Whereof the plaintiff claims from the defendants jointly and severally as follows:
(a) a declaration that the plaintiff is best entitled to a grant of statutory Right of occupancy in respect of the said piece or parcel of land situate and lying at isiohor ward 11/K, Benin/Lagos Road, Benin City within the jurisdiction of this honourable court which said piece or parcel of land is clearly shown and verged blue in plan No. OSA/2066/ED92 of 25/3/92 filed with the statement of claim.
(b) N10,000.00 for damages for trespass to the said piece or parcel of land in dispute in that on or about January, 1992 the defendants either by themselves, servants and/or agents broke and entered unto the plaintiff’s land without the plaintiff’s permission or consent and commenced building operations thereon.
(c) Perpetual injunction restraining the defendants their servants or agents from further acts of trespass on the plaintiffs said piece or parcel of land.
2ND FURTHER AMENDED STATEMENT OF CLAIM
3. The 1st plaintiff avers that he is the owner in possession of ALL THAT piece or parcel of land measuring 71.26 meters by 49.82 meters demarcated by beacon Nos. MD3817, MD 3812 and MD6938 shown and delineated pink on survey plan No. ISO/ED/693/92 filed along with this statement of claim.
4. The 1st plaintiff avers further that he acquired the said piece or parcel of land for value from one Jackson E. Uyigue as per certificate of transfer dated the 28th day of April, 1974; and that he subsequently applied for and obtained a grant of statutory right of occupancy No. EDSR 11148 dated 12th November, 1991, in respect of the parcel of land now in dispute. The plaintiff will at the hearing of this suit rely on the documents aforesaid.
5. The 1st plaintiff avers further that he thereafter took possession of the said land and commissioned his brother (the 2nd plaintiff) to purchase building materials, employ workmen, and supervise erection of his (1st plaintiff) dwelling house on the said parcel of land.
6. The 2nd plaintiff accordingly stumped all trees on the said land and wall-fenced it.
7. The 2nd plaintiff avers that he thereafter bought building materials, employed labour, and commenced building a dwelling house on the piece or parcel of land now in dispute.
8. The 2nd plaintiff avers further that by 12th December, 1991 he had built the house up to window level.
9. The plaintiffs further state that in the early hours of the 31st day of December, 1991, the defendant with his servants, and/or agents without just cause, broke and entered into the said land, and whilst there, destroyed the wall-fence aforesaid, cement blocks on the ground and pulled down the walls of the dwelling house thereon under construction despite pleas of plaintiff’s watchmen on duty.
10. The plaintiffs aver further that they thereafter employed a photographer who took pictures of the destroyed property. The picture and negatives thereto will be relied upon at the hearing of this suit.
11. The plaintiffs aver further that they thereafter employed Estate Valuers who carried out valuation of damages to the 1st plaintiff’s property on the said parcel of land now in dispute. The plaintiff will at the hearing rely on the said valuation report dated 11th March, 1994, prepared by Development Cost Consultants of No. 2, Urubi Street, (2nd floor) Benin City.
12. The 1st plaintiff avers further that he suffered special damages amounting to N243,403.00. The particulars of the special damage is as stated in the report of Development Cost Consultant which will be relied upon at the hearing.
13. The defendant has refused or neglected to pay the said damages of N243,403.00 despite demands.
13a. The plaintiffs state that the 1st plaintiff is beneficially entitled to the aforesaid piece and parcel of land and compensation for the damages caused by the defendant.
14. WHEREOF the plaintiffs claim from the defendant as follows:
(i) A declaration that the plaintiff Nosakhare Olotu is the rightful owner and beneficiary entitled to that piece or parcel of land covered by certificate of occupancy No. EDSR 11148.
(ii) N243,403.00 special damages for destructions of materials,
(iii) N900.00 general damages; and
(iv) An order of perpetual injunction restraining the defendant, his servants and/or agents from further trespass into the said piece of land.
It is the law that, in an action for declaration of title to land, just like the instant case, a party must prove title to the piece of land by any of the following five ways:
(a) traditional evidence; or
(b) production of documents of title; or
(c) various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership; or
(d) acts of long enjoyment and possession of the land; or
(d) proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would, in addition, be the owner of the disputed land.
See the cases of: (1) Idundun v. Okumagba (1976) 9 – 10 S.C. p. 227; (2) Okafor v. Idigo (1984) 1 SCNLR p. 481; (3) Atanda v. Ajani (1989) 3 NWLR (Pt. 111) p.511 and (a) Usman v. Joda (1998) 13 NWLR (Pt. 582) p.374.
In the instant case, parties relied on documents of title. In particular, the 1st Respondent relied on the grant to him, of a statutory right of occupancy No. BDSR 11148 over the parcel of land in dispute which was described as being situate at Isiohor Village, along Benin/Shagamu/Lagos road, Benin City, by the then Bendel State Government. The Respondents led oral evidence in support of the claims as contained in their 2nd Further Amended Statement of Claim at page s 174 to 177 of the record of appeal. In the course of the oral evidence, a number of documents were tendered and received in evidence. These documents include exhibits P9, Deed of Transfer; P10 Conveyance Assignment; D1, Bills of Quantities; D4, Certificate of Transfer and D5, Certificate of Occupancy.
The Appellant also led evidence to establish his claims in his statement of claim – see pages 33 to 37 of the record of appeal. Documents were also tendered and received in evidence in support of the claims. Amongst these documents are exhibits P1 to P3, various plans made between 1987 and 1992; P5, Letters of Administration and P7, Agreement/Purchase Receipt.
On the issue of the admissibility of exhibit D5, I must and do agree with the learned senior counsel for the Respondents that the said exhibit D5 was properly tendered and received in evidence. The combined effects of Sections 91(1)(a), 93, 94(1), 97(1)(e) and 112 of the Evidence Act is that public documents such as Certificate of occupancy may be proved by the production of the originals themselves for the court to inspect as primary evidence. See the cases of: (1) Ebu v. Obun supra; (2) Daggash v. Bulama supra and (3) Anatogu v, Iweka II. It is to be noted that indeed primary evidence is the best form of evidence. For, certification indeed connotes that, there was an original which for one reason or another can not be produced. Hence, there will be no need to produce a certified copy of a document when the original itself is available. This is commonsensical.
The Appellant has also made a heavy weather of the point that the land the subject-matter of this appeal, that was sold to him by the administrators of the estate of the late original owner of the said land, Jackson Uyigue, is different from the land sold to the 1st Respondent. It is my well considered view that, this point was properly put paid to at the lower court. The learned trial Judge in my strong opinion rightly expunged that evidence because it was not pleaded. It is an elementary principle of law, that, evidence that is not based on a pleaded fact goes to no issue, the learned trial Judge properly found in this regard and that, the identity of the land in dispute was not in doubt.
Furthermore, it had been canvassed for the Appellant that exhibit D5 was fraudulently obtained and that the signature of late Jackson Uyigue on exhibit P9 was forged. These are serious allegations of crime which the lower court could not have casually resolved or presumed by his mere visual comparison of the said signatures as raised by the Appellant. It is settled that an allegation of crime must be proved by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. This is the cardinal principle of law laid down in Section 138(1) of the Evidence Act that the commission of a crime by a party must be proved beyond reasonable doubt. The onus is rock steady and does not shift at any point and under any circumstance. See the cases of: (1) Abdullahi v. State (2008) 17 NWLR (Pt. 1115) p. 203; (2) Ahmed v. The State (2003) 3 ACLR P.145 at p.177; (3) Obiakor v. The State (2002) 6 SCNJ p.193 and (4) Anekwe v. The State (1998) ACLR p.426 at p. 433.
The set standard of proof is so rigid that, even in civil cases, for an allegation of crime to be established, the standard of proof is still that of proof beyond reasonable doubt. See the cases of: (1) Dangote v. Plateau State Civil Service (2001) WRN p.125 and (2) Fabiyi v. Unilorin (2005) NSLR (Pt. 5) p. 117. I hold that the Appellant herein failed to discharge the legal burden of proof placed on him, the allegations of fraud and forgery leveled against the Respondents were not substantiated by him.
It is trite law that in all cases where a plaintiff is seeking for declaration of title to land, the burden lies on such a plaintiff to prove his case on his evidence and he will fail if he fails to discharge that burden. He must therefore succeed on the strength of his own case and can not rely on the weakness of the opposing party to obtain judgment. If the burden is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant unless where the defendant’s case itself supports the plaintiff’s case and contains evidence on which the plaintiff is entitled to rely, in which case, the plaintiff will be fully entitled to rely on such evidence. See the cases of: (1) Echi v. Nnamani (2000) 8 NWLR (Pt. 667) p.1; (2) Okelola v. Adeleke (2005) 2 F.W.L.R (Pt.259) p.65. This is in tune with the trite position of law that the burden of proof in civil matters is on the party who makes an assertion of fact. See Section 135 of the Evidence Act, 2004, now Section 131 of the Evidence Act, 2011 and the cases of: (1) G. Chitex lnd. Ltd. v. O.B.I. (Nig.) Ltd. (2005) NSLR (Pt. 2) P.192; (2) Agbaje v. National Motors (1971) 1 UILR p.119 and (3) A.G. Anambra State v. Onuselogu Enterprises Ltd. (1978) All N.L.R. P. 579.
In the present case, there is no suggestion whatsoever by the Appellant that there was any aspect of the Respondents’ case or evidence which supported the case for the Appellant on the question of the Appellant’s better title to the land in dispute. For, it is settled that where parties to a land dispute trace their title to a common root, it is the party who establishes a better title thereto that is entitled to succeed in a claim for declaration of title.
In a civil case, there are always two versions of the case, the duty of the trial court is to compare the two versions of the evidence led and accept one version. The learned trial Judge after the examination of the totality of the evidence adduced by the Appellant and Respondents, came to the conclusion that the 1st Respondent as 1st plaintiff in suit No. B/175/92 which was consolidated with the Appellant’s suit No. B/18/92 had established a better title to the parcel of land in dispute, than the Appellant. The learned trial Judge in this regard found in lines 16 to 24 at page 232 as follows:
The issue in this case is that both the plaintiff and defendant had a common grantor. The son of the original owner of the property Mr. Johnson Uyigue D.W.4 said that his father transferred the land in dispute to the 1st defendant. The son also transferred to the plaintiff. D.W.4 said that the land in dispute was the one his father transferred to the 1st defendant (Mr. Olotu). Exhibits D4 and P9 dated 28/7/94 show that the land was transferred to the 1st defendant in 1974. Also Exhibits P7 dated 10/7/75 show that the land was transferred to the plaintiff (Francis Edobor) on 10/7/75.
After the above findings of fact, the learned trial Judge in lines 17 to 20 at page 234 held thus:
It seems to me that the transfer to 1st defendant (Mr. Olotu) is earlier in time. It was in 1974 while that of Edebor was in 1975. They had a common grantor. The law is trite that where the equitable (sic) are equal it is 1st in time. Mr. Olotu is 1st in time.
It is established that the vesting of a legal title in respect of a piece of land in a person is a matter of law. Being a matter of law, its determination lies entirely within the exclusive domain of the trial Judge. See the cases of: (1) Gankon v. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (Pt. 297) p.55 at p. 71 and (2) Usman v. Joda supra.
In the instant matter, the lower court accepted the Respondents’ version. See the cases of: (1) Romaine v. Romaine (1992) 2 S.C.N.J. P. 25; (2) Akinola v. Oluwo (1962) All NLR p. 224 and (3) Akinloye v. Eyiyola (1968) NMLR p.92. The success of the plaintiff will be guaranteed if he satisfied the court first, as to the precise nature of the title claimed and second with the evidence establishing title of the nature claimed. See the cases of: (1) Emegwara v. Nwaimo (1953) 14 W.A.C.A. p. 347 and (2) Okelola v. Adeleke supra. In the present matter, the Appellant did not establish on the evidence brought by him that he is entitled to a declaration of title to the property in dispute.
The substantive issue in controversy between the parties is whether there was sufficient reliable evidence to prove that the 1st Respondent has better title to the land in dispute than the Appellant. Regarding the issue of reception and evaluation of evidence and findings of fact, in the case of: Guardian Newspapers Ltd. v. Ajeh (2011) 10 NWLR (Pt. 1255) p.574, Rhodes-Vivour, JSC at p.592 para. G had the following to say:
Receipts of relevant evidence is perception, while evaluation entails the weighing of the evidence bearing in mind the surrounding circumstances of the case. Findings of fact by trial Judge involves both perception and evaluation.
On the duty of the trial court with regard to evaluation of evidence and attitude of an appellate court thereto, the learned Jurist, Rhodes-Vivour, JSC at page 592, paras. C – F went further to say that:
This court has stated again and again that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the court of trial which saw, heard and-assessed the witnesses as they testified at the trial in the witness box. It is equally basic that where such court of trial unquestionably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial court.
See Akpagbue v. Ogu (1976) 6 SC p.63;
Woluchem v. Gudi (1981) 5 SC P.391;
Ibanga v. Usanga (1982) 5 5C P.103;
The trial Judge would have no difficulty in arriving at the correct decision if evidence is properly evaluated. Consequently, where evidence is properly evaluated i.e to say when all the principles of law relevant are properly considered, an appeal court would be in much difficulty trying to disturb the findings arrived at by the trial Judge. Such findings cannot be disturbed by an appeal court.
Therefore to succeed in an appeal, an Appellant must show the appellate court that the trial court against whose decision he appealed made errors either in the appraisal of the facts or application of law to the facts to warrant the intervention of the appellate court. See the cases of: (1) Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) p. 101; (2) Shittu v. Fashawe supra at p.44, para. D; (3) Wilson v Oshin (2000) 6 S.C (Pt. 111) P. 1 and (4) Ukejiana v. Uchendu 13 WACA P.43 at P.46.
From the foregoing elucidations under this issue, I am of the strong view and I hold that the learned trial Judge in this matter did not make errors either in his evaluation of the evidence adduced before him or application of laws to these facts. I have no reason whatsoever to disagree with his findings in this respect. I hold that the learned trial Judge was therefore right in finding that the land in dispute was vested in the 1st Respondent by virtue of the grant of the Certificate of Occupancy, exhibit D5, to him in 1974.
ISSUE THREE
Whether the lower court was right in awarding the sum of fifty thousand naira (N50,000) as special damages against the Appellant?
The submissions of the learned counsel for the Appellant is that the trial court was wrong in awarding fifty thousand naira (N50,000) as special damages to the 1st Respondent, the initial special damages claimed by the Respondents having been disallowed by it. This is because an award of special damages, unlike an award of general damages, is based not on the discretion of the trial court but credible evidence adduced before the trial court. For special damages must be pleaded and strictly proved by the plaintiff to entitle him to the award. He relied on the case of: Garba v Kur (2003) 11 NWLR (Pt. 831) p. 280.
The grievance of the Appellant against the special damages awarded by the lower court in favour of the Respondents for the alleged destruction of the structure of the 1st Respondent on the land in dispute, was not reacted to, by the Respondents’ learned senior counsel in the brief of argument filed for the Respondents.
It is settled that damages are monetary compensations for loss or injury to a person or property. Damages are therefore the sum of money received from a wrongdoer as compensation*for the wrong done. Hence, the governing purpose of damages, whether special or general damages, is to put the party whose rights have been adjudged violated, in the same position, restitution in integrum, so far as money can do as if the rights have been observed. See the cases of (1) G.Chitex Ind. Ltd. V. O.B.I. (Nig) Ltd. (2005) NSLR (Pt. 2) P. 192; (2) Omonuwa v. Wahabi (1976) 4 S.C. P.37 and (3) Idahosa v. Oronsanya (1959) 4 F.S.C. P. 166.
In the instant case, the 1st Respondent claimed special damages for injury to and the loss of his property. The learned trial Judge found as a fact through DW1 and DW4 that, the 1st Respondent’s property was actually destroyed by the Appellant. The requirement of the law is that, where the claim is that for special damages as it is in this case, it must be pleaded with particularity and proved strictly by the claimant, as special damages can not be presumed by the court. See the cases of: (1) Iyere v. Bendel Feeds & Flour Mill Ltd. (2009) 3 W.R.N. P. 139(2) Onuyale v. Macaulay (2009) 7 NWLR (Pt. 1141) P.597; (3) Leventis (Nig.) Plc. V. Akpu (2007) 17 NWLR (Pt. 1063) P. 416; (4) Nwobosi v ACB Ltd. (1995) 6 NWLR (Pt. 404) P. 658 and (5) Onuwuka v. Omogui (1992) 3 SCNJ P.98.
The learned trial Judge therefore properly in law held in lines 6 to 7 and at page 235 of the record of appeal that, special damages must be strictly proved. He went further in his judgment and again properly in facts found that no receipts were tendered in evidence to establish the assessment of the loss suffered by the 1st Respondent as a result of the destroyed property. Yet, the learned trial Judge went ahead to award the sum of fifty thousand naira as special damages to the 1st Respondent. Indeed, the findings of the lower court on the issue of damages are contained in lines 5 to 27 at page 235 of the record of appeal. For the sake of clarity, I hereunder reproduce same as follows:
On the bill of quantity exhibit D1, which is under the head special damages, it is trite law that special damages must be strictly proved. There was evidence from the DW1 that he saw the plaintiff instructing people to destroy the building of 1st defendant. Although there is a bill of quantity exhibit Dl but there are no receipts for the purchase of materials used for the construction. It was argued that the bill of quantity exhibit D3 was made after the case was in court. Exhibit D1 was dated march, 1994. The suits 1st and 2nd were filed on 14/1/92 and 30/3/91 respectively. I agree with the argument that it was made for the purpose of this case.
I therefore, reject the assessment contained therein. However, special damages must strictly proved. In Cross Line Ltd. v. Thompson (1993) 2 NWLR Pt. 273 ratios 9 & 10, it was held that proof in the con of special damages mean no more that proof as would readily lend itself to quantification or assessment. The 1st defendant said he built the house up to window level. Although receipts were not produced I award him N50,000 special damages. He also claimed general damages. To award general damages after awarding special damages is tantamount to double compensation. See Kerewi v. Odeghe Son (1967) NWLR P.89 at 91; Soatan v. Oguwo (1973) 6 S.C. P.17 at 65. (The underlining is mine for emphasis).
The position of the law is that, an appellate court will interfere with the award of damages by a trial court if satisfied either that the Judge at the trial court in assessing the damages applied a wrong principle of law such as taking into account an irrelevant factor or that the amount awarded is either so ridiculously low or so ridiculously high that it must have been a wholly erroneous estimate of the damages. See the cases of: Leaders & Co. v. Bamaiyi (2005) 2 FWLR (Pt. 259) P.84 and (2) Obara v, Board of Mgt. Eko Baptist Hospital (1978) 6-7 SC P.15. In the instant case, I have no doubt in my mind and hold that, the award of fifty thousand naira special damages to the 1st Respondent was not justified because it was not supported by the evidence before the trial court. It can be distinctly gleaned from the findings reproduced above that the learned trial Judge with respect, acted on the wrong principle of law when he held that, strict proof of special damages means no more than proof as would readily lend itself to quantification or assessment. It is for this reason that I hold that the said order of the learned trial court Judge can not be allowed to stand.
It is settled law that assessment of damages is based on both pleadings and evidence adduced in support of pleadings. Therefore, where there is no evidence to support a claim for damages, the claim must be dismissed. See the cases of: (1) Int’l Messengers Nig. Ltd. v. Nwachukwu (2005) 1 FWLR (Pt. 252) P.264 and (2) W.A.E.C. v. Kotoye (1977) 2 S.C. P.45. In the instant case, the award of special damages to the 1st Respondent by the trial court was wrong not having been proved. It is hereby set aside accordingly. For the above reasons, this issue is resolved in favour of the Appellant and against the Respondents.
Another criticism by the Appellant of the judgment under scrutiny is that the lower court failed to make pronouncements in respect of each of the two suits in order to show that each case had its own separate and individual existence. lt is established that consolidation of actions is the process whereby two or more separate actions pending in the same court are joined and tried together at the same time, to save costs and time. Equally is the law that in consolidated actions, the burden of proof lies on the plaintiffs in each suit. Each plaintiff must discharge his own onus.
In the instant case, the learned trial Judge consolidated the two actions suit Nos. B/18/92 and B/175/92 and tried them together with the consent of both parties. He no doubt did the correct thing because the two suits had common characteristics of law and facts arising from the same land in dispute. Both parties were claiming title to the same piece of land, although their issues are different. The substance of the two suits are the same declaration of title to the land lying and situate at Isiohor Village along Benin/Shagamu/Lagos Road, Benin City.
The learned counsel for the Appellant has stated the correct position of the law that, although consolidated actions are tried and determined in the same proceedings, each action remains a separate action and should be given its own judgment at the end of the common and joint trial. For, the court cannot determine one suit and ignore the other. The Appellant’s learned counsel is therefore right to the extent that, in the instant case, the trial court at the end of the joint trial ought to have made pronouncements in respect of each of the two suits to show that each case had its own separate and individual existence. The Respondents’ learned senior counsel conceded to this stand.
Further on this point is the learned senior counsel for the Respondents’ submissions that the omission by the trial court to make pronouncements in respect of each of the two suits can be corrected by this Court in the exercise of its posers under the provisions of Section 15 of the Court of Appeal Act, 2004. He referred to the case of: Sawuta v. Ngah supra. The referred case is quite instructive on this point.
Section 15 of the Court of Appeal Act provides that the Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in an appeal, make an order which the court below is authorized to make and generally have full jurisdiction over the whole proceedings before a trial court as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part. In the instant case, I am of the view and hold that from the printed record of appeal, there is credible evidence in support of the Respondents’ claim which guided the learned trial judge to hold that the 1st Respondent had proved a better title to the land in dispute, subject to the findings in this appeal. Therefore, in accordance with the provisions of Section 15 of the Court of Appeal Act, thereby make the following pronouncements in respect of the case:
The learned trial Judge having held in his judgment that the 1st defendant in suit No. B/18/92 had proved a better title, the plaintiff’s claims in suit No. B/18/92 fail and are hereby dismissed and the plaintiff in Suit No. B/175/92 is entitled to his claims as follows:
(i) A DECIARATION that the 1st plaintiff, Nosakhare Olotu is the rightful owner and beneficially entitled to the parcel of land covered by Certificate of Occupancy No. EDSR11148 and
(iii) AN ORDER of perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said parcel of land.
In the final analysis, this appeal lacks merit and is hereby dismissed. The award of special damages having been set aside, the judgment of the trial court is accordingly affirmed as follows:
The 1st Respondent, 1st plaintiff in suit No. B/175/92 is granted the following reliefs:
(i) A DECLARATION that the 1st plaintiff, Nosakhare Olotu is the rightful owner and beneficially entitled to the parcel of land covered by Certificate of Occupancy No. EDSR 11148; and
(ii) AN ORDER of perpetual injunction restraining the defendant, his servants and/or agents from further trespassing on the said parcel of land.
It is further ordered that the costs of this appeal which is assessed at thirty thousand naira (N30,000) is awarded in favour of the Respondents and against the Appellant.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have read in draft the judgment of my learned brother Omoleye JCA. I agree with all the reasons given and considered and I therefore adopt the judgment as mine. I also abide by all the consequential orders made including cost awarded against the Appellant which is assessed at N30,000.00.
CHIOMA EGONDU NWOSU-IHEME (Ph. D) J.C.A.: I have read the lead Judgment just delivered by my learned brother OMOLEYE JCA and I agree that the appeal lacks merit. The issues at stake have been dealt with extensively; I therefore reiterate the point made.
In the circumstance, the Judgment of the lower court cannot be faulted by this court in any way, and the end result is that I also dismiss the appeal. I abide by the orders in the lead Judgment including costs.
Appearances
Chief H.O. OgboduFor Appellant
AND
J.O. Odion Esq.,
E.C. Eduwu Esq,.For Respondent
