ISHAKU DANJUMA V. IBRAHIM TERENGI
(2010)LCN/4224(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/J/189/2009
RATIO
PROOF OF TITLE TO LAND: POSITION OF THE LAW ON THE DUTY IMPOSED ON A PLAINTIFF , WHERE A CLAIM FOR DAMAGES FOR TRESPASS TO LAND IS COUPLED WITH A CLAIM FOR PERPETUAL INJUNCTION
By operation of law also, a claim for damages for trespass to land coupled with a claim for perpetual injunction, puts title in issue. See OLOHUNDE VS ADEYOJU (supra). Here, the respondent had claimed for damages for trespass to the land in dispute and a perpetual injunction. Title is therefore definitely, in issue. And once title to land is in issue, then a plaintiff has the onus of proving his title to the land by adducing credible evidence to the satisfaction of the court, on the strength of his own case, and not on the weakness of the defendant’s case – AUTA VS IBE (2003) 7 SCNJ 159 at 172; ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt 19) 799. PER ABUBAKAR DATTI YAHAYA, J.C.A.
PROOF OF TITLE TO LAND: DUTY OF THE PLAINTIFF WHERE HE CLAIMS THAT HIS TITLE TO THE LAND IN DISPUTE IS DERIVED FROM A GRANT, INHERITANCE OR SALE; CONSEQUENCE OF THE FAILURE OF THE PLAINTIFF TO ADDUCE CREDIBLE EVIDENCE TO ESTABLISH HIS ROOT OF TITLE AS PLEADED
The respondent pleaded that he purchased the land in dispute from Tizhe Kuvange who founded the land originally. He must prove this by credible evidence. This is because the law is settled that once title of a plaintiff is derived from a grant, inheritance or sale, pleading should aver, and of course evidence must be led, to show how the land was founded, who founded it and exercised original acts of possession – PIARO VS TENALO (1976) 12 Sc 31 at 34; LAWAL VS OLUFOWOBI (1996) 12 SCNJ 376 at 384; ADEJUMO VS AYANTEGBE (1989) 6 SCNJ 76 and ANYANWU VS MBARA (1992) 5 NWLR (Pt 242) 386 at 403. If the Plaintiff fails to adduce credible evidence to establish his root of title as Pleaded, he will fail and the court will not look at possession or acts of ownership – ARE VS XPAYE (1990) 2 NWLR (Pt 132) 296 at 301 and FASHORO VS BEYIOKU (1988) 4 SCNJ 23. In other words, the action for declaration will fail – UDEZE VS CHIDEBE (1990) 1 NWLR (Pt 1251 141 at 160 PER ABUBAKAR DATTI YAHAYA, J.C.A.
ROOT OF TITLE : CONSEQUENCE OF THE FAILURE OF THE PLAINTIFF TO ESTABLISH HIS ROOT OF TITLE AS PLEADED; WHETHER ACTS OF POSSESSION BASED ON A ROOT OF TITLE THAT COULD NOT BE ESTABLISHED CAN SUSTAIN A CLAIM FOR DECLARATION OF TITLE TO THE LAND
…once the respondent had failed to prove the root of title, then the action should have been dismissed, as acts of possession based on a root of title that could not be established and proved, cannot sustain a claim for declaration of title to the land. See DABO VS ABDULLAHI (2005) 2 SCNJ 76 and KARIMU ADISA VS OYINWOLA (supra). PER ABUBAKAR DATTI YAHAYA, J.C.A.
TRESPASS: WHO CAN COMMENCE AN ACTION FOR DAMAGES FOR TRESPASS
Action for damages for trespass is maintainable by a party who is in possession – OKPALA EZEOKONKWO & ORS VS NWAFOR OKEKE & ORS (2002) 5 SCN3 1. If the respondent had no title to the land in dispute (as I have held in resolving issue No. 1) and did not have possession, he could not be entitled to a claim of trespass and damages/against the appellant, even if the appellant was a trespasser, since only a person with better title to the land could sue for trespass – OLUWALE VS ABUBAKARE (2004) 10 NWLR (Pt 882) 549; EZEKWESILI VS CHIEF BENIAH (2003) 4 SCNJ 174. After all, the law is that where issue of title is in issue as in this case, the plaintiff must, apart from proving title and right of possession, also prove act of trespass by the defendant on the land – LASISI VS LALEKE (2003) 4 SCNJ 105. PER ABUBAKAR DATTI YAHAYA, J.C.A.
Before Their Lordships
BODE RHODES-VIVOURJustice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria
Between
ISHAKU DANJUMAAppellant(s)
AND
IBRAHIM TERENGIRespondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgement): This appeal emanates from the judgment of the Adamawa State High Court, Mubi, delivered on the 9th February, 2009. The respondent as plaintiff, had filed an action against the appellant as defendant, praying at paragraph 12 of the statement of claim for
(i) A declaration that the plaintiff is the rightful owner and or entitled to the piece of Sand measuring 70 feet by 75 feet located at Arhan-Kana or Gima ward, Mubi, Mubi South Local Government Area of Adamawa State having purchased same under customary sale since 18th April 1972 from one Tizhe Kuvange the original lawful owner and or occupier.
(ii) A declaration that the Defendant is not entitled to the ownership and or possession of the said piece of land, having not purchased same from the rightful owner and or occupier.
(iii) A declaration that any purported sale of land to the Defendant by any person not being the rightful owner, occupier or user thereof is null and void and of no effect whatsoever.
(iv) N900,000.00k (Nine Hundred Thousand Naira) general damages from the Defendant for trespass committed on the said land.
(v) A perpetual injunction restraining the Defendant, his privies, assigns, servants, and or agents from further acts of trespass upon the said land.
(vi) Cost of this action.
As the defendant was contesting the Suit, pleadings were ordered and exchanged. The matter went to trial. Five witnesses testified on behalf of the plaintiff/respondent and two for the defendant/appellant.
The case of the respondent was that he bought the land in dispute from Tizhe Kurange the original founder, witnessed by a sale agreement, Exhibit A. He entered upon the land, marked its boundaries and allowed people to farm it for about twenty years. The defendant/appellant then trespassed upon the land, destroyed the cement blocks marking the boundaries of the land and dug a foundation pit.
For the defendant, his case is that the land does not belong to the respondent, but to one Maliki Yallwho was the one who put him – in possession. He also alleged that it was this Yalla who dug the foundation pit, not him.
At the end of the trial, the court granted all the claims of the respondent. Hence this appeal.
The appellant filed a Notice of Appeal with 5 grounds. The appellant’s brief was filed on the 7th of August, 2009 within time. The respondent filed his brief of argument on the 17th of September, 2009 also within time. The appellant filed a Reply brief on the 21/10/2009, but deemed filed on the 26th of April, 2010.
In the appellant’s brief, three issues were identified for determination to be –
(1) Whether the learned trial judge was justified in holding that title was not in issue in this suit and that the plaintiff proved his title to the land to entitle him to the reliefs claimed by him in view of the fact that:
(a) Plaintiff specifically claimed title to tie disputed land, damages for trespass as well as perpetual injunction against the defendant; and
(b) The plaintiff never offered any evidence whatsoever in proof of his pleaded root of title which was denied by the defendant.
(2) Whether the learned trial judge was justified in rejecting the evidence of the defence witnesses and the defence put forward by the defendant.
(3) Whether the award of N900,000.00k (Nine Hundred Thousand Naira) general damages for trespass is justified and not excessive in view of the fact that the plaintiff did not proffer any evidence in support of that head of claim and was awarded without any reason showing how the learned trial judge arrived at the amount.
For the respondent, three issues were also identified in the Respondent’s brief. They are –
(i) Whether the trial court was right to have held that the Plaintiff/Respondent had proved his title to the disputed land; and even if the answer is in the negative, whether such failure to prove title, if any, was fatal to the other claims of the Plaintiff/Respondent for trespass and injunction.
(ii) Whether the trial court properly evaluated the evidence of the parties before it arrived at its decision.
(iii) Whether the trial court committed an error in law by the award of N900,000.00k (Nine Hundred Thousand Naira) as general damages against the Defendant/Appellant.
I find the issues identified by the appellant most apt and I shall therefore utilize them in resolving this appeal.
ISSUE 1.
Counsel- for the appellant submitted on this, that the burden of proving a claim for declaration to land is on the plaintiff who must do so on the strength of his case and not the weakness of the defendant’s case- OKORIE ECHI VS NNAMANI (2000) 5 SCNJ 155. Further, that if a plaintiff traces his root of title to a particular person or source, which is denied by the defendant, then the plaintiff, must plead and prove the title of that person otherwise, the claim will be dismissed- SUNMONU OLOHUNDE VS ADEYOJU (2000) 6 SCNJ 470, LAWANI ALLI VS ALESINLOYE & ORS (2000) 4 SCNJ 264 and PRINCE NGENE VS CHIKE IGBO & ANR (2000) 2 SCNJ 136. Counsel then argued that since the respondent in his paragraph 3 of the statement of claim had based his claim of title on purchase from Tizhe Kuvange and how Kuvange got the land, and that the appellant had denied the pleading, the plaintiff had the burden to prove how Kuvange got the land. He submitted that no evidence was led in that regard, as to how Kuvange got the land and this means that the respondent had failed to prove his root of title. He emphasized that the trial judge had in fact found that the respondent never proved his root of title – page 53 lines 12 – 18 of the record. Counsel argued that the trial court ought to have dismissed the claim, but it did not and instead, it held that title was not in issue as the appellant did not personally claim title to the land. It then held that the respondent had proved title to entitle him to the reliefs claimed. This, he said was wrong, especially as the law is that mere claim for damages for trespass to land, coupled with a claim for perpetual injunction, puts title in issue – OLOHUNDE VS ADEYOJU (supra). Counsel argued that the finding of the lower court that the respondent had proved title, is perverse and should be set aside.
For the respondent, it was submitted that the trial court was right when it held that the respondent had proved title to the disputed land. This is so because, although it was conceded that the respondent and his witnesses had not proved title by means of traditional history, through first settlement by Kuvange, the respondent had pleaded and proved title by “means of acts of ownership exercised and possession.” He placed reliance on OJOH VS KAMALU & 3 ORS (2005) 18 NWLR (Pt 958) 523 on the five ways of proving title to land and submitted that customary sale transaction and acts of ownership and possession, are ways of proving title to land and out of abundance of caution, a plaintiff may rely on more than one of the recognized ways of proving title – ASHIRU VS OLUKOYA (2006) 11 NWLR (Pt 990) ADEBO VS OMISOLA (2005) 2 NWLR (Pt 909) 149 and BALOGUN VS AKANJI (2005) 10 NWLR (Pt 933) 394. Counsel argued that as there is no ground of appeal challenging the finding that the respondent had proved title by means of proven acts of ownership by possession, the finding is subsisting and should be upheld.
Counsel then took up the issue of trespass and injunction, submitting that even if title had not been proved, that will not affect these other claims as a plaintiff can succeed in a claim for trespass even if he failed on a claim for declaration of title – NGENE VS IBO (supra) at page 264. Since the respondent was adjudged to be in possession of the land he argued, and since the court had made a finding that the appellant had committed acts of trespass on the land, the respondent is the right person to sue – OGBIMI VS NIGER CONSTRUCTION LTD (2006) 9 NWLR (Pt 986) 474. He urged us to discountenance the authorities cited by the counsel to the appellant.
In the Appellant’s reply brief, counsel submitted that a plaintiff who fails to prove his root of title, must have his case dismissed as he cannot support a non-existent root of title with acts of possession or substitute a root of title that has failed, with acts of possession which should have been derived from that roof of title – KARIMU ADISA VS OYINWOLA (2000) 6 5CNJ 290. He submitted that as this is the position in this case, the respondent must fail.
Counsel also submitted that although a claim for damages for trespass may succeed even if the claim for title had failed, where there is a failure to prove title and possession, a claim for trespass cannot succeed – OLUHUNDE VS ADEYOJU (supra). Since there is no specific finding by the court that the respondent had proved possession, he was not entitled to the relief, he argued.
It is important to reproduce excerpts of the pleadings. In paragraphs 3, 4 and 5 of the statement of claim, it is averred that
3. The plaintiff avers that he is the owner of the land in dispute having purchased same at the sum of N400.00 (Four hundred Naira) only from one Tizhe Kuvange…..
4. The said transaction was witnessed by…… The sale agreement was reduced into writing…..
5. The plaintiff further avers that Tizhe Kurange came upon the land when it was virgin land, deforested it and settled on it, that is, he was the first person to settle on the land in dispute.”
By paragraphs 2, 3, 4, 5 and 6 of the statement of defence, the appellant denied the above-quoted paragraphs of the statement of claim and specifically averred, that it was one Dan Zamfara who first cleared the land in dispute, farmed and exercised various acts of ownership over it for several years before selling it to Abdullahi Mohammed. Abdullahi took possession, exercised acts of ownership for many years and then sold it to Abba Dan Asabe in 1985 who took possession. He used it and then sold it to one Maliki Yalla in 2003, Yalla took possession of it and dug a foundation and put the appellant in its possession.
Clearly therefore, the appellant denied the title of the respondent and his vendor Tizhe Kuvange as the founder of the land. Once the respondent pleaded his root of title and the appellant denied the averment, title to the land is in issue. It does not matter that the appellant did not himself claim for title to the land. By operation of law also, a claim for damages for trespass to land coupled with a claim for perpetual injunction, puts title in issue. See OLOHUNDE VS ADEYOJU (supra). Here, the respondent had claimed for damages for trespass to the land in dispute and a perpetual injunction. Title is therefore definitely, in issue.
And once title to land is in issue, then a plaintiff has the onus of proving his title to the land by adducing credible evidence to the satisfaction of the court, on the strength of his own case, and not on the weakness of the defendant’s case – AUTA VS IBE (2003) 7 SCNJ 159 at 172; ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt 19) 799.
The respondent pleaded that he purchased the land in dispute from Tizhe Kuvange who founded the land originally. He must prove this by credible evidence. This is because the law is settled that once title of a plaintiff is derived from a grant, inheritance or sale, pleading should aver, and of course evidence must be led, to show how the land was founded, who founded it and exercised original acts of possession – PIARO VS TENALO (1976) 12 Sc 31 at 34; LAWAL VS OLUFOWOBI (1996) 12 SCNJ 376 at 384; ADEJUMO VS AYANTEGBE (1989) 6 SCNJ 76 and ANYANWU VS MBARA (1992) 5 NWLR (Pt 242) 386 at 403. If the Plaintiff fails to adduce credible evidence to establish his root of title as Pleaded, he will fail and the court will not look at possession or acts of ownership – ARE VS XPAYE (1990) 2 NWLR (Pt 132) 296 at 301 and FASHORO VS BEYIOKU (1988) 4 SCNJ 23. In other words, the action for declaration will fail – UDEZE VS CHIDEBE (1990) 1 NWLR (Pt 1251 141 at 160.
In the instant case, although the respondent pleaded who founded the land originally, he did not lead any evidence in proof of the pleading not supported by evidence are deemed abandoned ANYA VS IMO HOTELS (2002) 12 SCNJ 145. SHELL VS OLAREWAJU (2008) 12 SCNJ (Pt 11) 684 at 702, Tizhe Kurvange, the alleged original owner who founded the land, gave evidence as PW3. He never mentioned that he cleared the land originally and exercised acts of ownership. The trial court found that the respondent did not prove his root of title. The finding is correct and unassailable.
However, the trial court went ahead to grant a declaration over the land in dispute in these words at page 56 lines 17 – 20:
In this case the plaintiff pleaded ownership as a source of possession and in my opinion the plaintiff has proved his root of title. See Exhibit “A” referred to above.
First of all, “pleading ownership” is not synonymous with proving ownership. So the trial judge acted on the wrong premise. Secondly, the mere production of Exhibit A, the sale agreement is not enough as stated earlier. The root of title must be proved. It was not. Most importantly, once the respondent had failed to prove the root of title, then the action should have been dismissed, as acts of possession based on a root of title that could not be established and proved, cannot sustain a claim for declaration of title to the land. See DABO VS ABDULLAHI (2005) 2 SCNJ 76 and KARIMU ADISA VS OYINWOLA (supra). The trial court was therefore wrong in giving a declaration of title to the land in dispute to the respondent, because of acts of possession. -At any rate, the respondent never pleaded acts of possession as his basis for the claim of title. He only pleaded sale or purchase from Tizhe Kuvange. Furthermore, ground 3 of the grounds of appeal as particularized in paragraph (d) thereof, complained about the trial court’s error of accepting that the plaintiff had proved title to the land on the basis of his “purported possession.” The argument of the appellant in the brief concerning the finding of fact by the trial court that the respondent had proved title, is therefore in order as it has a basis upon which to stand. Counsel for the respondent was therefore not in order, when he submitted to the contrary at page 11, paragraph 4.1.04 of the respondent’s brief. Issue No. 1 is resolved against the respondent.
ISSUE NO. 2
This is on the trial judge rejecting the evidence of the defence witnesses. Counsel for the appellant submitted that the appellant had denied that the land in dispute belonged to the respondent and had also denied that he had trespassed on to the land. To prove his averment on the denial, he called DW 1 and also testified as DW 11. DW 1 testified that the land belonged to him and that he was the one who brought the labourers that dug foundation for fencing of the land, complained of as acts of trespass. Counsel submitted that the rejection of the evidence of DW 1 was because he was not a party in the case. This, he argued, is very wrong as a witness does not have to be a party in a matter before he can give evidence or be believed. As for DW 11, his evidence was rejected because he did not claim title to the land and had no interest in it and that it was hearsay. Counsel argued that if their evidence had been believed, then it would have been a complete defence to the claim of trespass against the appellant.
For the respondent, counsel submitted that the learned trial judge had adopted a proper approach to the evidence before him and made proper finding after evaluating same. He considered the defence and dismissed it as the evidence that it was the appellant who committed trespass on the land, was not controverted. He found the evidence of DW 1 that he was the one who committed the trespass, as a ruse and therefore rejected it. As the evidence of DW 1 and DW 11 was well considered, appellant cannot be heard to complain that no regard was given to the defence. Where there is no evidence to put on one side of the imaginary scale in a civil case, proof will be minimal, he argued- ADEWUYI VS ODUKWE (2005) 14 NWLR (Pt 945) 473. He urged us to hold that the finding was not perverse.
Throughout the judgment, I have not seen where the trial judge reviewed the evidence or put it on an imaginary scale in order to evaluate it. It does not lie in the mouth of the respondent, to say that there was no evidence to put on the other side of the scale. There was evidence of DW 1 and DW 11 and that should have been weighed against the evidence of the respondent, to see which side preponderated. That was not done. The rejection of the evidence of DW 1 because he was not a party in the case, is a complete misnomer since participation in a case as a party is never a condition precedent to being a witness. He was called to testify in line with the pleadings of the appellant, that the land in dispute belonged to him and especially, that he was the one who took labourers to the land to dug the foundation complained of as trespass by the appellant. His evidence if accepted, would have the effect of exculpating the appellant as the one who committed trespass, and would not have been liable in damages for trespass, since he did not commit it. if the trial Judge had weighed the evidence of DW 1 and DW 11 against the evidence of the respondent’s witnesses, and rejected the evidence of DW 1 and DW 11 for valid reasons disclosed in the proceedings, there would have been no problem. But his rejection of the evidence of DW 1 and DW 11 is on a wrong premise, and is perverse, as he had taken into consideration, extraneous matters which he ought not to have taken, which substantially formed the basis of his decision to reject the evidence. This has occasioned miscarriage of justice – ODENGWE VS UZUEGBU (2003) 7 SCNJ 145 at 153 and ODIBA VS AZEGE (1998) 9 NWLR (Pt 566) 370. The evidence of a witness cannot be rejected because he is not a party to the case, simpliciter. Even if the trial court would not believe the evidence of DW 1 that he is the owner of the land, it could, not reject his evidence simply because he was not a party in the case.
As for DW 11, what he stated concerning the clearing and founding of the land by Dan Zamfara as he was told by his father, is evidence of traditional history as correctly submitted by counsel for the appellant. How could it be rejected as hearsay? It was relevant, admissible and in line with the statement of defence of the appellant. Also, DW 11 had interest in the land as his evidence showed that he had been put in possession of the land – OJOMO VS IBRAHIM (1999) 12 NWLR (Pt 631) 415.
There is the finding of the trial judge at page 54 of the record, that
“I also find as a fact that the defendant actually trespassed on the said piece of land in dispute. See the evidence of PW 1- PW 5”
First of all this is not as a result of any proper evaluation of the evidence of both parties, as the evidence of DW I and DW II was rejected on the wrong premise and therefore not considered. There is evidence from both DWs that it was DW I that was responsible for the so called ‘trespass’ and not DW II. It ought to have beer, weighed against the evidence of the plaintiff witnesses and a finding made. Secondly, the trial judge did not seem to be accurately conversant with the facts and this is because of his failure to review and evaluate the evidence properly. This is because, it is not correct, that the evidence of PW 1 – PW 5 had shown that the “defendant actually trespassed on the said piece of land in dispute.” The evidence of PW 3 and PW 4 did not establish or lead any evidence that it was the appellant that trespassed on to the land.
Again, at one breath, the trial judge rejected the evidence of DW 11 in its entirety for being hearsay and not linked with any interest he had in the land – page 55 lines 12 – 15. In another breath, he agreed with counsel for the respondent, that the defence put up by the appellant “concerning the allegation of trespass against him is evasive and unrealistic” – page 54 lines 15 – 21 of the record. A court cannot purport to evaluate evidence of a witness and reject it for being evasive and unrealistic and then go to reject the same evidence in its entirety, because the witness has no interest on the land and that the evidence is hearsay.
It is also correct, as submitted by counsel for the appellant, that the trial court did not make any specific finding of fact that the respondent had proved possession. Action for damages for trespass is maintainable by a party who is in possession – OKPALA EZEOKONKWO & ORS VS NWAFOR OKEKE & ORS (2002) 5 SCN3 1. If the respondent had no title to the land in dispute (as I have held in resolving issue No. 1) and did not have possession, he could not be entitled to a claim of trespass and damages/against the appellant, even if the appellant was a trespasser, since only a person with better title to the land could sue for trespass – OLUWALE VS ABUBAKARE (2004) 10 NWLR (Pt 882) 549; EZEKWESILI VS CHIEF BENIAH (2003) 4 SCNJ 174. After all, the law is that where issue of title is in issue as in this case, the plaintiff must, apart from proving title and right of possession, also prove act of trespass by the defendant on the land – LASISI VS LALEKE (2003) 4 SCNJ 105. in the instant case, the respondent had not proved title, had no finding in his favour that he was in possession or had a right to possession; and the finding that he had proved act of trespass against the appellant occasioning miscarriage of justice, he cannot be entitled to the reliefs. Further, in an action for trespass and injunction, once there is a failure to prove pleaded root of title, as in this case, it is completely unnecessary, to consider acts of possession because such acts in the circumstances, would amount to arts of trespass – REGISTERED TRUSTEES OF THE DIOCESE OF ABA VS NKUME (2002) 1 SCNJ 15.
As I said earlier, the trial judge did not review the evidence led and did not properly evaluate the evidence. He was merely believing counsel for the appellant on his address. The rejection of the evidence of DW 1 and DW 11 was perverse, and the finding of trespass against the appellant based on the perverse findings, cannot be allowed to stand. I resolve Issue No. 2 against the respondent.
ISSUE NO. 3
Counsel for the appellant submitted here, that the award of N900,000.00k as general damages for trespass was excessive as no assessment based on legal principle was done and no reasons given as to how it was arrived at – E2EKIEL NKA VS JOSEPH ONWU (1996) 40/41 LRCN 1303 and ACME BUILDERS LTD VS KADUNA STATE WATER BOARD (1999) 2 SCNJ 25. He also argued that as the award of all the reliefs was based on the respondent proving title, and since this finding cannot stand, all the reliefs must also fail.
Counsel for the respondent submitted that the complaints in ground 5 of the appeal, is one of error in law, and not that it was excessive. He referred to UNIVERSAL TRUST BANK VS ADAMS AJAGBULE (2006) 2 NWLR (Pt 965) 447; HARKA AIR SERVICES NIG VS KEAZOR (2006) 1 NWLR (Pt 960) 160 to submit that general damages are at large, without the necessity of pleading or proof as it is based on what a reasonable person will consider adequate. This court, he said, cannot substitute its views for that of the trial court. He urged us to discountenance the argument that the respondent did not recite his claim viva voce.
Now, a claim for damages for trespass is independent of a claim for title and what a plaintiff needs to establish, is exclusive possession, and not title or ownership – OWHONDA VS EKPECHI (2003) 9 SCNJ 1 and PROVOST COLLEGE OF EDUCATION LAGOS STATE VS DR EDUN (2004) SCNJ 156. So even though the respondent had failed to prove title, he could maintain an action, if he could prove possession at the time of the trespass. I have held that he had not proved possession and there is no finding of fact by the trial court, to that effect. Further, the grant of all the other reliefs, including the award of N900,000.00k as general damages, was based on the fact that the respondent had “proved title ”
Since this finding has been held here to be wrong, the basis of the grant of the reliefs has been knocked out and they have nothing to stand upon. No trespass has been proved by the respondent against the appellant. There cannot therefore, be an award of damages for trespass.
Counsel for the respondent had attacked the argument of the appellant on the excessive nature of the award as the ground of appeal only complained of error in law. In ACME BUILDERS VS KADUNA STATE WATER BOARD (supra) pages 43 – 44, the Supreme Court held-
Where a trial judge in assessing general damages proceeds upon a wrong principle or no principle of law and makes an award which is manifestly unwarranted, excessive.such award would not be allowed to stand.
(Emphasis mine).
It is therefore clear, that excessive award is an error in law and is the subject of ground 5 of the appeal. The argument has therefore been properly placed.
The trial judge did not make any assessment of the award and did not say what it was for. So no principle of law was shown to have been followed. The entire amount asked for was given without any hesitation, consideration or assessment. Taking into consideration, the circumstances of the case and the nature and extent of the trespass which had not been proved, the award is manifestly unreasonable, unwarranted and excessive, and this court can interfere in that vein. So even though, I have held that trespass had not been proved against the appellant and so no damages for trespass are claimable, in case I am wrong, and to give the Supreme Court a basis upon which to proceed, I will review the excessive award made by the trial court..
In my view, what a reasonable person would consider adequate for the loss and the inconvenience if any, as a result of the alleged trespass, flowing naturally, since it is not specific damages, is the sum of N50,000.00. This is the amount that would have been awardable. Issue No. 3 is resolved in favour of the appellant.
Having resolved all the issues against the respondent, I find this appeal meritorious and it succeeds. It is allowed. The judgment of the trial court delivered on the 9th of February 2009 granting all the reliefs claimed by the respondent is hereby set aside. An order of dismissal of the Suit No. ADSM/41/2005 is hereby made.
HON. JUSTICE BODE RHODES-VIVOUR, JCA: I read in draft the leading judgment of my learned brother Yahaya JCA. I also find merit in this appeal, and allow the appeal.
UZO NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Yahaya, JCA. I am in agreement with his reasoning and conclusions and allow this appeal, it being meritorious. I also abide by all the consequential orders made in the lead judgment.
Appearances
Roland C. Emern Esq.For Appellant
AND
Amaya B. Panyi Esq.For Respondent
