HYACINTH U. IKE & ANOR v. ISAAC ANUDIKE & ORS
(2018)LCN/11971(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2018
CA/E/84/2010
RATIO
ACTION: DECLARATORY RELIEF ON SATISFACTORY EVIDENCE
“A counterclaim, it was submitted, is an independent action and to succeed, the Respondents must satisfy the Court on the evidence adduced by them that they are entitled to judgment. In any case the Court below can only grant a declaratory relief on satisfactory evidence adduced and not even on admission. The Court was referred to Akinola vs. Oluwo (1962) 1 All NLR 224 at 225 and Oduaran vs. Asarah (1972) 1 All NLR (Pt. 2) 137.” PER JAMES SHEHU ABIRIYI, J.C.A.
TORT LAW: TRESPASS TO LAND
“Trespass to land is rooted in the right to exclusive possession. Trespass to land is actionable at the instance of the person in possession. See Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401. There is overwhelming evidence that the Respondents’ family has been in exclusive possession of the land since 1885. Therefore the invasion of the land by the 2nd Appellant with thugs in 2004 is actionable at the instance of the Respondents. The learned counsel for the Appellants’ submission that the Appellants would only be rightly condemned if the Respondents were given the land outrightly cannot be correct.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. HYACINTH U. IKE
2. BARTHOLOMEW IKE
(for themselves and as representing Ezeanukwu family, Obiagu) Appellant(s)
AND
1. ISAAC ANUDIKE
2. AKONAM ANUDIKE
3. KENNETH ANUDIKE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment delivered on 18th January, 2008 in the High Court of Anambra State holden at Nnewi in suit No. HN/79/2004.
The Appellants who were the plaintiffs in the High Court (the Court below) took out a writ of summons against the Respondents as defendants. The claim of the Appellants against the Respondents was for the following:
(a) A declaration that the Defendants having challenged the Plaintiff’s (sic) title over the land in dispute, have all forfeited their rights and/or interests over the same.
(b) A declaration that the Plaintiffs are entitled to the Certificate of Right of Occupancy (Statutory) over the land in dispute in reversion, as the Defendants have since 1968 left and/or abandoned same to the Plaintiffs.
(c) The Sum of N2m (Two Million Naira) being Special and General damages for trespass.
PARTICULARS OF SPECIAL DAMAGES
N K
1. Cost of One Iroko tree = 500,000.00
2. Cost of three (3) Fruiting palm trees at N50, 000.00 each. = 150,000.00
3. Cost of Economic trees harvested = 100,000.00
Total Special Damages = 750,000.00
Add General Damages = 1250,000.00
Grand Total Damages = N2, 000.000.00
(d) Perpetual injection restraining the Defendants, their agents, Servants, Privies and/or assigns from further entering into and/or remaining upon the land in dispute, or in any way whatsoever dealing with the land in dispute in any manner inconsistent with Plaintiff’s (sic) title and possessory rights over the same.
The Respondents on their part counterclaimed against the Appellants. The counterclaim of the Respondents against the Appellants was for the following:
(a) A declaration that the Defendants, as the descendants of Late Reuben Anudike Echendu, are entitled to the grant of Statutory Rights (sic) Occupancy in respect of all that piece and parcel of land known as ‘ANA REUBEN ANUDIKE’ situate and lying at Obiagu, Uruagu, Nnewi and more particularly delineated and verged pink in the survey plan NO. CD/AN/D.42/2004 attached hereto.
(b) N1, 500,000.00 being special and general damages for trespass.
PARTICULARS OF DAMAGES
1. 1000 stand of medicinal herbs destroyed at N500.00 per stand 500,000.00
2. Walls damaged 200,000.00
3. 8 bags of bitter-kolanut (ugolo) carried away at N5,000.00 each 40,000.00
4. 30 bags of mixed cement destroyed at N1, 500.00 each 45,000.00
5. Cash taken away (N88,000+N30,000.00) 118,000.00
6. Plastic containers at N2000.00 each 10,000.00
7. Medical treatment 150,000.00
8. 5 Economic trees destroyed valued N20, 000.00 each 100,000.00
N1, 163, 000.00
Add General Damages N337, 000.00
Grant Total N1, 500,000.00
(c) Perpetual injunction restraining the plaintiffs, their agents, servants, privies and/or assigns from any further acts of trespass or in any manner whatsoever interfering with the Defendants? title and right of possession over the land in dispute.
The case of the Appellants briefly stated is as follows: The great grandfather of the Appellants Ezeamogu, the original owner of the land in dispute granted the land to the grandfather of the Respondents called Anundike Echendu sometime in 1885 for his dwelling-house. The only son of Anudike Echendu, Emmanuel Anudike succeeded his father to the land after the death of his father. The 1st and 3rd Respondents succeeded their father Emmanuel Anudike to the land after the death of the father. The 2nd Respondent is the first son of the 1st Respondent.
The 2nd Respondent cut down an Iroko tree on the land in order to make room for the building of a bungalow. The Appellants alleged that in carrying out the new construction on the land and cutting down the Iroko tree, the Respondents did not obtain their consent and that the Respondents converted the proceeds of the cut-down Iroko tree.
The Appellants further alleged that under Nnewi native law and custom where the grantee of land cuts down an Iroko tree on the land without the consent and authority of the grantor the grantee automatically forfeits his interest in the land granted to him as the offensive act constitutes a challenge of the over-Lordship of the grantor over the land. The Appellants alleged that in 1968, the father of the 1st and 3rd Respondents, Emmanuel Anudike including his family members moved out of the land in dispute and relocated to Awor Oraifite and the land thereby reverted back to the Appellants who are the descendants of the original grantor. The Appellants also alleged that the Respondents in 2004, without the consent of the Appellants who had allegedly assumed the reversionary interest in the land, broke into the said land.
It is the case of the Respondents that the original owner of the land Emeamogu granted the land in dispute to Anudike Echendu, the grandfather of the 1st and 3rd Defendants sometime in 1885 for Anudike to build a dwelling-house.
Anudike Echendu hailed from Awor Oraifite, son of Ifeghalu, a sister of the grantor, Ezeamogu. She took her son Anudike Echendu to the house of Ezeamogu of Obiagu Uruagu, Nnewi. Ezeamogu maternal uncle of Anudike Echendu accepted Anudike Echendu into his family. Anudike Echendu grew up in the house of Ezeamogu and on coming of age was granted the land in dispute by his uncle to build a dwelling-house.
According to the Respondents the grant was an irrevocable gift of the land to Anudike Echendu and his descendants. That the grant was made in the presence of witnesses with the killing of goat, presentation of kolanut and wine.
The Respondents stated that in the light of the nature of the grant, they did not need the consent and authority of the Appellants to cut down the Iroko tree and to construct the new bungalow.
The Respondents denied the allegation of having ever moved out of the land in dispute at any point in time since the grant of the land to Anudike Echendu in 1885. On the contrary the Respondents alleged that it was the Appellants who sometime in 2004 sought to extort money from them having seen the new development on the land in dispute.
That because they (Respondents) did not yield to the pressure from the Appellants, the Appellants invaded their residence on the land in dispute. The Respondents reported the invasion to the police.
After considering the evidence led by both parties and addresses of learned counsel for the parties, the Court below dismissed the claim of the Appellants and entered judgment in favour of the Respondents. Most of the reliefs sought by the Respondents were granted.
The Appellants proceeded to this Court by a notice of appeal dated 14th April, 2008 and filed on 21st April, 2008 urging the Court to allow the appeal, set aside the judgment of the Court below and in its place enter judgment in their favour and dismiss the counterclaim.
The notice of appeal contains ten grounds of appeal.
From the ten grounds of appeal, the Appellants presented the following ten issues for determination:
1. Whether the learned trial Judge was right in law when he held that the Court believes that the Respondents are recognized by Obi of Obiagu and Obi of Uruagu as members of Appellants’ family when the said Obi of Obiagu did not testify as a witness in this case. Ground 1.
2. Whether the learned trial Judge was right in law when he held that there was no credible evidence placed before the Court to cause the Court to believe that the Respondents had gone back to Oraifite abandoning the land in dispute. Ground 2.
3. Whether the learned trial Judge was right in law after he had stated that ?there are tissues of lies here and there by both parties’ and still went on to grant Respondents their counter claim. Ground 3.
4. Whether the learned trial Judge delved into speculation when he held that by the Nigerian standard, the old mud house and cement block attachment are still habitable by human beings when the issue before it is whether the Respondents had moved out of the land in dispute thereby abandoning same. Ground 4.
5. Whether the learned trial Judge was right in law when he held that the Appellants had not denied the Respondents’ counter claim in the light of the existence of their process titled ‘reply to statement of defence & counter claim filed on 2-2-05′ and the position of our law on counter claim. Ground 5.
6. Whether on the evaluation of facts of this case, the learned trial Judge was right in law by adjudging the Appellants as trespassers thereby condemning them in damages. Ground 6.
7. Whether the learned trial Judge was right in law when he ordered perpetual injunction against the Appellants thereby extinguishing the Appellants? customary rights of reversion on the land in dispute. Ground 7.
8. Whether in the circumstances of this case and the evidence adduced, the amount awarded to the Respondents is not colossal. Ground 8.
9. Whether the learned trial Judge was right in law when he failed to consider and evaluate the claim of the Appellants and evidence adduced in this case which said failure had occasioned miscarriage of justice to the Respondents. Ground 9.
10. Whether on the whole, the judgment of the learned trial Judge failed to reflect the weight of evidence and therefore unreasonable. Ground 10.
The Respondents initially presented five issues for determination. Issue five was withdrawn and struck out at the hearing of the appeal. The remaining four issues are reproduced immediately hereunder:
i. What was the nature of the grant of the land in dispute made to the great grandfather of the Defendants/Respondents Echendu Anudike by the progenitors of the Plaintiffs/Appellants.
ii. Whether the Defendants/Respondents in 1968 or at any other time whatsoever vacated the land in dispute by going back to Oraifite, thereby leaving the reversionary interest in the land to the Plaintiffs/Applicants.
iii. Whether on the balance of probability or the preponderance of evidence, the Plaintiffs/Appellants were able to proof (sic) their case as required by law to entitle them to the judgment of the trial Court.
iv. Whether the Defendants/Respondents were able to proof (sic) the reliefs sought in their Counter – Claim, and if so, whether the value of damages awarded the Defendant/Respondents were disproportional (sic) in the circumstances of the case.
I will determine the appeal on the ten issues formulated by the Appellants.
On issue 1, learned counsel for the Appellants pointed out that of the seven witnesses called by the Respondents, Obi of Obiagu was not one of them and there was no document emanating from him. It was submitted that the Obi of Uruagu is not the same person as Obi of Obiagu in whose community the Respondents are said to be residing.
It was submitted that even the Obi of Uruagu who testified in the matter only gave evidence as to the native law and custom of Nnewi vis-a-vis the grant of land to Nwadiala by Nnaochie in general and not on the grant and vacation of the land which is in issue in this case. It was submitted that the Court below therefore descended into the arena of conflict by importing materials into the case and in effect reconstructing the Respondents’ case as presented before it.
The Court, it was submitted, must examine and analyse the cases of the parties as they are on the record. The Court, it was submitted, is not at liberty to reconstruct a party’s case or import material into the facts presented before it. We were referred toAdejugbe vs. Ologunja (2004) 6 NWLR (Pt. 868) 46 at 76 and Abubakar vs. Joseph (2008) 6 KLR (Pt. 256) 2449.
On issue 2, learned counsel for the Appellants submitted that there was credible evidence emanating not only from the Appellants witnesses but also from DW2 and DW3 that the 3rd Respondent had gone back to Oraifite. Also that the DW2 testified that the mud house and fence on the land in dispute was under ruins save for the one under construction.
It was submitted that the evidence of DW2 goes to strengthen the evidence of the Appellants’ witnesses to the effect that the Respondents had gone back to their town of origin Oraifite thereby abandoning the land in dispute thus reviving the reversionary interest of the Appellants on the land.
It was submitted that ruins of the mud house and fence were sufficient signs or evidence of abandonment of the land in dispute by the Respondents.
It was submitted that further evidence of acts of abandonment of the disputed land was elicited from DW1 under cross examination when he said that his mother was buried at Awo in Ifite Oraifite. It was submitted that the burial of the mother of DW1 and DW3 at Oraifite is a positive act of abandonment of the land in dispute on the part of the Respondents.
The Court was also referred to evidence of DW1 under cross examination at page 145 of the record of appeal where he said that it is not true that his son Akonam and his family lived in the bungalow with seven rooms which is still under some repairs.
It was submitted that from the foregoing, there was sufficient evidence of abandonment of the land in dispute by the Respondents who had retired to their home town at Oraifite.
On issue 3, learned counsel for the Appellants referred the Court to the remark by the Court below at page 219 of the record of appeal that there were tissues of lies here and there by both parties and proceeded to point out the lies he claimed the Court below observed when that Court nowhere pointed out such evidence of lies. According to the learned counsel for the Appellants, the lies included whether Kenneth Anudike built a house in the land in dispute. Whether there are ruins and dilapidated mud house and fence, whether there was anybody living in the newly constructed house and whether the Respondents had gone back to Oraifite.
That the DW1 testified that the Respondents had gone back to Oraifite but DW2 and DW3 testified that Kenneth Anudike the 3rd Respondent had gone back to Oraifite. That DW1, DW2, DW3 and DW4 testified that the 1st Respondent and family are living on the land in dispute but DW7, a police officer testified that no single soul lived in the land.
That the DW2 stated that it was N188, 000 that was stolen even though it was pleaded and DW1 stated that it was N88, 000 that was stolen. That DW3 stated thus:
”Akanom Anudike built a bungalow at Obiagu, Uruagu Nnewi and lives there. It is true that the bungalow Akanom Anudike lives in — at Obiagu Nnewi is still under construction.”
It was submitted that what can be deduced from these contradictions from the testimonies of the Respondents’ witnesses are that
a. the witnesses are not conversant with Nnewi native law and custom as claimed by them.
b. that they are not witnesses of truth and therefore their evidence cannot be relied upon by the Court.
c. that they have not proved their counterclaim as required by law.
Contradictions, it was submitted, are resolved against the maker. We were referred to Arjay vs. AMS (2003) 7 NWLR (Pt. 820) 577 at 588.
It was submitted that the lies referred to above emanating from the testimonies of the Respondents, rob the Respondents of their entitlement to the counterclaim. We were referred to Ochemaje vs. State (2008) 6 KLR (Pt. 256) 2605 and Anukam vs. Anukam (2008) 2 KLR (Pt. 249) 745.
It was submitted that the Court below having observed these tissues of lies ought to have dismissed the counterclaim of the Respondents. Rather than doing so it proceeded to look for evidence that was slightly better.
On issue 4, learned counsel for the Appellants submitted that the Court below during the visit to the locus in quo observed the old mud house with leaking roofs, no electricity and walls in ruins and that these were sufficient evidence of none habitation whether in Nigeria or elsewhere:
The Court below, it was submitted, was in error when it held that the mud house and cement blocks were habitable in Nigeria in the absence of any human being.
The Court below, it was submitted, thereby delved into speculation which no Court is permitted to do.
On issue 5 learned counsel for the Appellants pointed out that the Appellants filed a reply to the statement of defence and counterclaim wherein they denied all the averments in the statement of defence and counterclaim.
A counterclaim, it was submitted, is an independent action and to succeed, the Respondents must satisfy the Court on the evidence adduced by them that they are entitled to judgment. In any case the Court below can only grant a declaratory relief on satisfactory evidence adduced and not even on admission. The Court was referred to Akinola vs. Oluwo (1962) 1 All NLR 224 at 225 and Oduaran vs. Asarah (1972) 1 All NLR (Pt. 2) 137.
The Court below, it was submitted, erred in law when it held that there was no categorical denial by the Appellants of paragraphs 31, 31 (a) and 31 (b) and they were deemed admitted by the Appellants and did not have to be proved.
On issue 6, learned counsel for the Appellants contended that the nature of the grant to the Respondents was not certain. It was submitted that on the available evidence, Respondents did not show that the land was given outrightly. It was submitted that the fact that the fathers of the Respondents were buried on the land is no evidence that the land was given outrightly.
The argument proffered on issue 7 is not in respect of the issue. However from the particulars of ground seven (7) from which the issue is formulated the Appellants are saying that there is evidence that the grant by the Appellants to the Respondents subsists so long as the Respondents reside physically in the land. That both parties agree that the Appellants have a right of reversion whenever the Respondents vacate the land. That in making an order of perpetual injunction the Court below has extinguished the Appellants’ reversionary interest.
On issue 8, it was submitted that apart from the ipse dixit of the Respondents, there was no independent evidence in support of the Respondents’ claim for damages for trespass. Therefore the Court below was wrong in awarding damages of N682,000.00 to the Respondents especially the general damages of N337,000.00, the Respondents having failed to prove their counterclaim on the preponderance of evidence.
It was submitted that the damages awarded are unreasonable baseless and enormous.
On issue 9, it was submitted that on a balance of probability the evidence was heavier on the side of the Appellants because the only relevant issue in question on the part of the Respondents was the issue of the burial of their fathers on the land in dispute on which the Appellants led evidence on the circumstances leading to existence of that fact which was not rebutted by the Respondents.
It was submitted that the Court below failed to follow the principles laid down by the Supreme Court in dealing with evidence adduced by parties in a case in Mogaji & Ors vs. Odofin & Ors (1978) 3 SC 91.
It was submitted that if the Court below had adopted the established procedural law stated in the above case, the balance of probability would have been more on the side of the Appellants
Issue 10 is a rehash of the earlier arguments of learned counsel for the Appellants. It is to the effect that the Court below failed to reflect the weight of evidence of parties. That the evidence of DW3 and DW4 put the issue of the nature of the grant to the Respondents at rest.
That evidence of DW2, DW3 and DW7 showed that the Respondents had abandoned the land. That the Appellants gave evidence to the effect that they have been farming on the land.
It was finally submitted that the judgment of the Court below failed to reflect the weight of evidence adduced and therefore unreasonable.
Learned counsel for the Respondents submitted that the onus of proof is always on the party who asserts a fact and once he is unable to prove his assertion by cogent and credible evidence, he is bound to fail. We were referred to Braimah vs. Abasi (1998) 13 NWLR (Pt. 58) 167 at 71 and Basil vs. Fajabe (2001) 6 LRCN 1438 at 1451.
It was submitted that where as in this case the Plaintiffs/Appellants failed to lead cogent credible evidence to support their pleading that the Defendants/Respondents are customary tenants on the disputed land who are bound to forfeit the grant where they harvest Iroko tree on the land without express authority of the grantor their case must fail. It is the law, it was submitted that even where the Defendants case is bad the plaintiff must of necessity prove his case satisfactorily before the Court.
It was submitted that even where the defendant fails to testify or refuses to attend Court sitting, the plaintiff still has the burden of proof. The Court was referred to Atunwa vs. Ladenika (1998) 7 NWLR (Pt. 557) 221 at 222 and Umeojiako vs. Ezenamuo (1990) 1 NWLR (Pt. 176) 253.
It was submitted that the Appellants failed to lead any credible evidence in proof of the existence of the customary law that would lead to the Respondents forfeiting the use of the granted land for harvesting an Iroko tree therein without the knowledge and express consent of the grantor. It was submitted that the Appellants having failed to lead credible evidence to establish the existence of such alleged custom, their case must fail as it did at the trial Court. The Court was referred to Giwa vs. Erinmilokun (1961) 1 SCNLR 337.
The Appellants, it was submitted, failed to lead evidence in proof of their assertion that the Respondents at anytime whatsoever relocated from the land in dispute back to their original roots in Oraifite. Having failed to prove this assertion, it was submitted, there was no basis for the Court below to hold that Respondents had gone back to Oraifite thereby abandoning the land in dispute.
Learned counsel for the Respondents submitted that he was at a loss as to how the statement of the DW2 at page 154 of the record of appeal was a suggestion that the Respondents abandoned the land in dispute. He submitted that it cannot be concluded that once there are no walls fencing a building under construction or where some old dwarf walls are in ruins, the property must have been abandoned.
It was submitted that such presumption cannot be raised or sustained especially in the face of clear and uncontradicted evidence by independent witnesses to the effect that the Respondents have been in continuous and unbroken possession of the disputed land to date. The Court was referred to the evidence of DW4 and DW5.
DW4, it was submitted, was the second highest ranking chief in the community where the parties reside at Obiagu Uruagu and DW5 was a traditional Ruler of the Uruagu Nnewi Autonomous Community where the parties reside and where the land in dispute is situated.
It was submitted that the evidence of DW1 and DW2 to the effect that the grant of the land in dispute was to their great grandfather by the Appellants progenitors was an outright gift signified by the killing of goat, presentation of kolanuts and drinks by witnesses was corroborated by the testimonies of DW5 and DW6.
It was submitted that the testimonies of DW5 and DW6 on the position of Nnewi Native Law and Custom as it relates to the nature of the granted land in dispute and the position of the land where an Iroko tree was harvested on the granted land by the grantee with or without the consent of the grantor were neither challenged nor contradicted under cross – examination. The trial Court was therefore entitled to rely on their evidence.
On the complaint of the Appellants in issue 1 that Obi of Obiagu did not testify and yet the Court below relied on his evidence, it was submitted that learned counsel for the Appellants failed to refer to any page or paragraph of the record of appeal from where the ground arose and where the issue was argued.
It was submitted that if there is any part of the record where the DW5 who is known to be the Obi of Uruagu Nnewi was mistakenly written as the Obi of Obiagu it would only be a matter of typographical error and would not amount to an error of law.
It was submitted that the assessment of defence witnesses by the Appellants’ counsel which he claimed showed that they were lies was not the assessment of the Court below.
From the several quotations of defence witnesses’ evidence in the Appellant’s brief, no point was made out to warrant the varying of the decision of the Court below.
On the observation by the Court below that there were ’tissues of lies here and there’ by both parties, it was submitted that observation by the Court below does not derogate from the sound judgment delivered by it. The Court below, it was submitted, did not base its decision on the tissues of lies it observed, but rather on the evidence, the facts and evidence placed before the Court below by both parties. Therefore Arjay vs. AMS (2003) 7 NWLR (Pt. 820) 577 at 588, Ochemaje vs. State (2008) 6 KLR and Anukam vs. Anukam (2008) 2 KLR (Pt. 249) 745 relied upon by counsel for the Appellants are not applicable.
It was submitted that the Appellants did not specifically deny paragraphs 31, 31(a) and 31(b) of the statement of defence and counterclaim.
It was submitted that the Court below clearly enunciated the law in respect of claims for declaratory reliefs before it reached its findings on the issue of declaration of title to the land in dispute. The Court was referred to page 214 – 219 of the record of appeal.
It was contended that the sum of N188, 000.00 which DW2 said as against N88, 000.00 pleaded and referred to by DW1 as the amount stolen could have been a typing error during the typing of the record of appeal. This probably explains why the DW2 was not cross – examined on it and why it was not referred to in the address of Appellants? counsel in the Court below.
It was submitted that the assertion that there was no independent evidence in support of the claim for damages in the counterclaim was far from the truth.
It was further submitted that if the trauma, pains, humiliation degradation and general inconvenience and ancillary losses suffered by the Respondents flowing from the vicious attack on the Respondents’ residence on 6th June, 2004 is properly weighed, it would not have been out of place if general damages of N5, 000.00 was awarded in favour of the Respondents.
The Reply Brief of Argument is a re-argument of the Appellants’ appeal and not dealing with new points arising from the Respondents’ brief as provided for under Order 19 Rule 5(1) of the Rules of this Court.
In the resolution of the issues for determination it appears to me that issues 1, 2, 4, 6, 9 and 10 are better treated together to avoid unnecessary repetition.
It is clear from the Appellants’ claim reproduced above that it is hinged on declaratory reliefs. The law is settled that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. It is the practice that a declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the plaintiff must plead and prove his claims for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant.
However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff’s title. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929 SC, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 at 707 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR 40184 CA page 25 – 26.
Although the Appellants sued for themselves and as representing Ezeanukwu family of Obiagu Uruagu, Nnewi only the 2nd Appellant testified in proof of the claim. No other member of the family not even the 1st Appellant testified. PW2 called by the Appellants said nothing about the claim. And what is the evidence adduced through the 2nd Appellant (PW1) Only this, that Emmanuel Anudike father of the 1st and 3rd Respondents and his family were taken back to Oraifite by PW1’s father in 1968 only for the Respondents to return to the land on 4th February, 2004 after they had lost title to the land.
This piece of evidence was demolished under cross-examination after the visit to the locus in quo when the PW1 tongue – in – cheek stated thus:
“The purported grave with inscription of the grave of late Emmanuel Anudike Nov. 1998 is not a grave but a hip (sic) of sand cemented with a view to camouflage a grave of Emmanuel Anudike. I don’t know if Emmanuel Anudike was buried in that compound in 1998.”
The above piece of evidence coupled with the earlier claim of this witness that the said Emmanuel Anudike and family had returned since 1968 to Oraifite shows that the evidence of PW1 was not credible. And since he was the only witness for the Appellants, there was nothing on which the Court below could enter judgment in favour of the Appellants.
During the visit to the locus in quo the 2nd Appellant claimed that those who were living in the land in dispute were tenants. He did not say whose tenants they were. He did not call any of the tenants as a witness to the claim of the Appellants that the land was their land and they had been in possession between 1998 to 2004 when the Respondents purportedly returned to the land.
Having failed to prove their claim to the land, the Appellants resorted to throwing tantrums at the judgment of the Court below.
For example they have contended that evidence of defence or some of the defence witnesses supports the case of the Appellants. Also they said the Court below relied on the evidence of a witness not called by the Respondents.
The DW2 whose evidence the Appellants say supported the case of the Appellants is the wife of the 1st Respondent. In her evidence in – chief she said they have been living on the land since their marriage. Under cross- examination, she maintained that they have been living in the land. Under cross examination, she denied that she left Oraifite with her children and her in-laws to come back to Obiagu, Nnewi to repossess the land and that this was what caused this action. Inspite of this evidence, the Appellants have argued that the evidence of this witness supported the case of the Appellants. The evidence of the witness under cross examination that there is no wall fence round the building being built by her son save ruins of old dwarf mud wall that were not renovated cannot by any stretch of construction be evidence that the Respondents had left the land.
DW1 whose evidence the Appellants also say supported their case that the Respondents abandoned the land stated in evidence in chief that he inherited the land from his father Emmanuel Anudike in 1998. That there was never a time his father took his family during his lifetime to Oraifite. This is what the DW1 stated:
“In 1998 when my father died I took over the possession of the land in dispute. Since 1998 when my father died and I took the possession of the land in dispute, I have never left the land in dispute. Since 1998, when I took over the land in dispute, I have been farming thereon, harvesting the palm fruits from the palm trees because I own the land. I live at Obiagu, Uruagu Nnewi in my father’s land. Since I took possession of the land in 1998 from my late father, I have not for once left the land, and went away to Oraifite.”
Inspite of the foregoing evidence, learned counsel for the Appellants has argued that the evidence of the DW1 supported the case of the Appellants merely because he said under cross examination that it is not true that his mother was not buried at Oraifite and that she was buried at her younger brother’s parcel of land purchased at Oraifite. The burial of DW1’s mother at Oraifite by itself alone is no evidence that the Respondents had abandoned the land in dispute.
The Appellants also argued that the evidence of DW3 supported the case of the Appellants. The DW3 in his evidence in chief stated that Emmanuel Anudike father of 1st and 3rd Respondents did not leave the land throughout his life time. The 1st Respondent succeeded Emmanuel Anudike on the land. Since the 1st Respondent started living on the land in dispute, he has not left the land for any other place. The 1st Respondent is presently living on the land even though he (DW3) had moved out to Umuechem. The DW3 under cross examination said there are three buildings and a kitchen on the land.
It is surprising that inspite of the foregoing testimony of the DW3, the learned counsel for the Appellants dared to suggest that the evidence supported the Appellants’ case that the Respondents had left the land. The reply of the DW3 who said he had moved out of the land though the 1st Respondent was still there to Umuechem that his mother was buried at Umuechem was by no stretch of interpretation evidence that the Respondents had left the land and returned to Oraifite.
Although no Obi of Obiagu testified, the Obi of Uruagu who testified as DW5 in his affidavit deposed that “all the parties hereof are my subjects.” This, as the Court below rightly pointed out was resounding evidence that the Respondents had not left the land as claimed by the Appellants. It is wrong for learned counsel for the Appellants to contend that the DW5 did not give evidence on the grant and vacation of the land. The case of the appellants was that the Respondents had vacated the land since 1968 and gone back to Oraifite. If they are still the subjects of DW5 as he stated that is clear evidence that they had not left the land.
Learned counsel for the Appellants contended that the Court below was influenced by the fact that the father of the 1st and 3rd Respondents was buried on the land. That cannot be correct. On the evidence of DW1, DW2, DW3 and DW5 highlighted above, it was very clear to the Court that the Respondents had not left the land. Evidence that the father of the 1st and 3rd Respondents was buried on the land only re-enforced the fact that the Respondents had never left the land. If they had left the land in 1968 as Appellants claimed how come their father was buried on the land in 1998?
Learned counsel for the Appellants also argued that what was seen at the locus showed that the buildings on the land were not habitable. Learned counsel for the Appellants cannot be oblivious of the fact that PW1 himself said that it was tenants that were on the land and not the Respondents. Surely if there were tenants as the Appellants claimed, they cannot be heard to say that the visit showed that the buildings on the land were not habitable. Therefore the Court below was not wrong when it held that the buildings on the land in dispute were habitable. The learned counsel for the Appellants was therefore harsh on the Court below when he alleged that the Court below delved into speculation and or prevarication on whether the buildings on the disputed land were habitable.
Trespass to land is rooted in the right to exclusive possession. Trespass to land is actionable at the instance of the person in possession. See Okoko vs. Dakolo (2006) 14 NWLR (Pt. 1000) 401. There is overwhelming evidence that the Respondents’ family has been in exclusive possession of the land since 1885. Therefore the invasion of the land by the 2nd Appellant with thugs in 2004 is actionable at the instance of the Respondents. The learned counsel for the Appellants’ submission that the Appellants would only be rightly condemned if the Respondents were given the land outrightly cannot be correct.
The learned counsel for the Appellants contended that the judgment of the Court below failed to reflect the weight of evidence as the evidence was heavier on the side of the Appellants. I am compelled to repeat that PW2 called by the Appellants said nothing on the Appellants’ claim. No member of the Appellants family was called to testify. 2nd Appellant the only witness who testified in proof of the claim during the visit to the locus in quo claimed that the people who were living on the land were tenants. He did not call any of the said tenants as a witness. He did not say whose tenants they were. Although he stated in evidence in – chief that 1st Respondent’s father left the land in 1968 for Oraifite, the evidence on the ground showed that the 1st Respondent’s father was buried on the land in 1998. The inscription on the grave which the 2nd Appellant said was a heap of sand showed that the 1st Respondent’s father was buried on the land in 1998. This confirms the evidence of Respondents that they have never left the land.
The PW1 (2nd Appellant) on the evidence before the Court was parsimonious with the truth. His evidence therefore was worthless. There was therefore nothing to put on the Appellants’ side of the imaginary scale of justice. Learned counsel for the Appellants was therefore making a mockery of the truth when he argued that the evidence on the Appellants? side of the scale of justice was heavier.
While the Appellants led no evidence to show that the Respondents had returned to Oraifite, the Respondents through DW1, DW2, DW3 and DW5 adduced credible evidence to show that the Respondents had not returned to Oraifite. There was therefore no basis for forfeiting the land which was granted to their grandfather in 1885.
Issues 1, 2, 4, 6, 9 and 10 are resolved against the Appellants and in favour of the Respondents.
Turning to issues 3, 5 and 8, it is true that the Court below at page 219 of the record of appeal in the judgment stated that there were tissues of lies here and there by both parties.
Although what the Court below said were tissues of lies here and they were not indicated in the judgment, learned counsel for the Appellants took it upon himself to speculate on the evidence he considered amounted to tissues of lies on the part of the Respondents without showing which evidence amounted to tissue of lies on the part of the appellants. He is not permitted to do so. As the Court below failed to indicate which evidence amounted to a tissues of lies here and there by both parties, it is not possible for the Court to determine whether that view of evidence of both parties was correct. I will therefore disregard the remark. I have considered the evidence of the witnesses on both sides. I have stated elsewhere in the judgment that the star witness for the Appellants PW1 was not a truthful witness because under cross examination he tried to deny that 1st Respondent?s father was buried on the land. He claimed under cross-examination that the inscription at the grave was on a heap of sand and not a grave. I have considered the evidence of Respondents? witnesses and it is clear that they are truthful witnesses.
This is confirmed by the Court below which meticulously assessed the evidence of the witnesses on both sides at page 213 to 219 of the record. At page 218 of the record of appeal, the Court below held that there was no credible evidence placed before it to cause it to believe that the Respondents had gone back to Oraifite thereby abandoning the land in dispute.
On the other hand the Court below held that on the evidence made out by the Respondents, the Respondents had made out their defence and counterclaim.
It is clear from the Appellants’ Reply to the statement of defence and counterclaim that the allegations of assault and inflicting of injuries on 1st Respondent contained in paragraphs 31, 31(a) and 31(b) of the Respondents defence and counterclaim were not controverted as claimed by Appellants’ counsel. Apart from the fact that the said paragraphs were not controverted and were therefore deemed admitted as rightly held by the Court below, the Court before found the allegations established on the evidence of DW7 and exhibits C, D and E tendered through the DW1.
The Respondents counterclaimed for N337, 000 general damages. The Respondents were granted the land since 1885.
There was no basis for the violent invasion into the land by the 2nd Appellant with thugs in 2004. The award of N337, 000 general damages was therefore not excessive.
Issues 3, 5 and 8 are resolved against the Appellants and in favour of the Respondents.
The Court below did not err when it granted the order of perpetual injunction as there is no anticipated right to land by the Appellants to be preserved.
Issue 7 is also resolved against the Appellants and in favour of the Respondents.
All ten issues having been resolved against the Appellants and in favour of the Respondents the appeal should be dismissed. It is dismissed by me.
Respondents are awarded N100, 000.00 costs to be paid by the Appellants.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship for the reasons stated in the said leading judgment that the appeal is devoid of merit and also dismiss it. I abide by the consequential orders made therein.
SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the draft copy of the lead Judgment just delivered by Lord, Abiriyi, JCA with whom I agree in toto that the appeal lacks merit and same ought to be dismissed. This appeal accordingly is dismissed.
Appearances:
E.C. Chikaelo, Esq.For Appellant(s)
Jesse-Daniels OnuigboFor Respondent(s)
