JUWAH & ORS v. OKOGWU (2020)

JUWAH & ORS v. OKOGWU

(2020)LCN/14575(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/AS/50/15

RATIO

PLEADINGS: THE RECORD OF COURT PROCEEDINGS.

It is trite that a record of a Court’s proceeding speaks for the Court. The record belongs to the Court so held the Apex Court in ALHAJI SANI ABUABAKAR DANLADI v BARR NASIRU AUDU DANGARI & ORS (2014) LPELR- 24020 (SC) per KEKERE –EKUN, JSC; also, in the case ofFAWEHINMI CONSTRUCTION COMPANY LTD v OBAFEMI AWOLOWO UNIVERSITY (1999) LPELR – 1256(SC), BELGORE, JSC held thus;
“Record of proceedings is the only indication of what took place in Court… it is always the final reference of events, step by step, that took place in Court.”
There is a plethora of authorities to the effect that the Court as well as parties to an appeal are bound by the record of proceedings as settled and transmitted by the registrar of the lower Court and they cannot go outside it to decide any issue in dispute in the appeal. See CENTRAL BANK & ORS v MR AITE OKOJIE (2004) LPELR–10882(CA)
There is no challenge to the correctness of record therefore, I agree that the learned trial judge lost sight of the relevant previous proceedings and its ruling. The finding of the lower Court in its judgment is sharply at variance with the record of proceedings and also amounts to the Court overruling itself having earlier ruled that the evidence was fully concluded which was the basis for striking out the application for locus brought by the Appellants/Plaintiff’s counsel, it certainly did not make out a case for abandonment of evidence.
The omission of the evaluation of the evidence of the 5th Claimant is very grave and amounts to miscarriage of justice which is fatal to the case of the Appellants.
Miscarriage of justice has been said in the case of EMMANUEL OLAMIDE LARMIE v DATA PROCESSING MAINTENANCE & SERVICE (2005) LPELR -1756(SC) the Apex Court held;
“The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of irreversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.”
Per ONONGHEN, JSC
See also AIGBABAHI v AIFUWA (2006) 6 NWLR PT 976 270 AT 290 – 291. OTISI, JCA in PASCA NENE AGBA &ORS v MRS GRACE JUBU (2019) LPELR – 47189(CA) relying on per RHODES – VIVOUR, JSC in GBADAMOSI v DAIRO (2007) 3 NWLR (PT 1021) 282 AT C puts it clearly and very aptly thus;
“There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice.”
There is a flaw in the evaluation of proceedings leading to the judgment herein which is very grave. The Respondent has submitted that the finding was not fatal to the decisions reached because the evidence was analysed, I beg to disagree with this, especially as the lower Court held at page 174 of the record;
“I shall now examine the oral evidence of 4th Claimant Exhibit H and CW1 surveyor Exhibit L to find out whether the Claimants established the root of the claim to the title to the land in dispute verged Pink on the Litigation Plan AA/D/12/2013 Exhibit M in this.”
This shows that the lower Court considered the evidence of the Appellants without the evidence of the 5th Claimant together with the Exhibits and ended up doing a summersault to the Appellants’ case with the Court concluding that the evidence of 4th Claimant was insufficient thereby failed to scrutinize/evaluate holistically the evidence on record, the purport of the deeds and purchase receipt. See; MR JOSHUA BERNARD FUMUDOH v MR EMEKA IKE & ORS (2017) LPELR – 42241 (CA).
It is curious that the Respondent submits in the regard that the exclusion of 5th Claimant’s evidence is not fatal, if the truth be said; it was this same Respondent’s Counsel who announced that he had no further questions in cross-examination and turned round to make startling submissions in his written address to the Court that the evidence of 5th Claimant was incomplete and that he was deprived of the opportunity of cross examining the 5th Claimant.
This was what the lower Court capitalized/relied upon without cross checking or verifying facts from the Court’s record that Respondent was present when the Court ruled that the evidence of the 5th plaintiff witness was closed and struck out the application to move to the house of 5th Claimant (who was very sick) to obtain evidence. This in my legal understanding led to a naked miscarriage of justice to say the very least.
Counsel are officers in the temple of justice, they owe the Court a duty to assist and guide not mislead the Court.
In OLUWALOGBON MOTORS & ANOR v NDIC (2018) 46482 (CA):
“It is trite and settled that a counsel’s duty and responsibility is first and foremost towards the profession, the Court and the society before his client. That is why lawyers are called ministers in the temple of justice. Their role is to assist the Court to arrive at the just or fair conclusion of the matter before Court. A counsel is to truly and really assist Court and not to mislead it. See AGORO VS. AROMOLARAN & ANOR (2011) LPELR-8906 (CA). The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or “worshipers” in the temple of justice is justice. Therefore, either as litigants, Court or counsel, everyone should be interested in doing justice. In OKPE VS. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) 31, the Supreme Court held: “Furthermore, interest of justice connotes such interests, aspirations and or attempts to achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/Appellants. Justice to the defendant/Respondent and justice to the Court itself… Counsel in conducting their client’s case should be duly guided by their role aspect out in the Rules of professional conduct and by a cloud of cases.”
Per EBIOWEI, J.C.A (PP. 25-28, PARAS. E-B).
Also, in FOLARIN v AYANRINOLA (2011) LPELR – 4117(CA)
“It is unfortunate that counsel either wittingly or unwittingly misinformed the Court below that Appellants was duly served. Counsel, as an officer of the Court, owed the Court the professional duty of presenting accurate facts to the Court – see Alhaji Mohammed Sani Abacha and Others v. The State (2002) 7 SCNJ 1 at 48 per Onu, . Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: THE POWER OF COURT OF APPEAL TO AMEND DEFECT OR ERROR IN THE RECORD OF APPEAL.

In OKEKE v NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LEPLR -(48781) CA this Court held on the Interpretation of Section 15 of Court of Appeal Act, 2004 as to the conditions that must exist before the Court can invoke same;
“The Supreme Court in Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & Ors (2010) LPELR-1201(SC) was emphatic on the Interpretation of Section 15 of the Court of Appeal Act, 2004 as to the conditions that must exist before the Court can invoke and exercise its powers in that Section. The Court per Onnoghen JSC held as follows: “Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.” In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the Appellants at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”
Per OGUNWUMIJU, J.C.A (PP. 31-33, PARAS. E-F)
Again, the Apex Court in DAPIANLONG & ORS v DARIYE ORS 2007 LPELR – 928(SC);
“It is the argument of learned senior counsel for the Appellants that the lower Court had no jurisdiction in the circumstances of the case to have proceeded, under Section 16 of the Court of Appeal Act, to determine the substantive matter before the trial Court having regard to the grounds of appeal and the issues before the lower Court. The question then is: What does Section 16 of the Court of Appeal Act provide? The section enacts the following: “16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings 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 or may remit it to the Court below for the purpose of such rehearing or may give such other direction as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” (Emphasis supplied.) It is clear from the above provisions that the powers conferred on the Court of Appeal by Section 16 of the Act are very wide indeed as they enable the appellate Court to exercise all the powers of a Court of first instance – see Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264; U.B.N. Ltd. v. Fajebe Foods & Poultry Farms (1994) 5 NWLR (Pt. 344) 325; Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1: A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Cappa & D ‘Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49. It is also settled law that Section 16 of the Court of Appeal Act can be invoked in order to facilitate the speedy administration of justice as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for a trial, Section 16, in an appropriate case empowers the Court of Appeal to assume the jurisdiction of the trial Court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country; See Inakoju v. Adeleke supra at 616. However, Section 16 is not an all-purpose or limitless power for the Court of Appeal to divest the High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under Section 16 to expand its jurisdiction.”
Per ONNOGHEN, J.S.C (PP. 41-43, PARAS. G-F) Following the above decisions, the pleadings, evidence and Exhibits before me, the case was filed in 2005 and the judgment was delivered in 2014. It involves the Appellants who is a registered Association sued via their trustees who are old and a couple of them from the records have died. Remitting the case file to the lower Court for retrial will serve no useful purpose, it will be in the interest of justice to settle the issues once and for all. . Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: NO CASE TO ANSWER

The implication in law is three-fold;
1. The plaintiff has not made out a case for the defendant to respond to.
2. Defendant admits the facts of the case as stated by the Claimant.
3. Defendant has a complete defence to answer to
The apex Court in NEWBREED ORGANISATION LTD v J.E. ERMOSELE (2006) LPELR -1984 (SC) in defining the word held that;
“…That he rested the Appellants’ case on case/evidence of the Respondent as a legal strategy and not a mistake. See AGUOCHA V AGUOCHA (2005) 1 NWLR (PT 960) 165 AT 184 PER SALAMI, JCA. CITING THE CASE AKANBI & ORS V ALAO & ANOR, 1989) 5 SCNJ 1. NEPA V OLAGUNJU & ANOR (2005) 3 NWLR (PT 913)602 AT 632 CA. It was stated that the implication where a defendant rests his case on that of the plaintiff, it may mean (a) that the defendant has not made out any case for the defendant to respond to; or (b) that he admits the facts of the case as stated by plaintiff or (c) that he has a complete defence in answer to the plaintiff’s case.”
Per OGBUAGU, JSC
In MR CHRIS DURA AONDO v BENUE LINKS NIGERIA LTD (2019) LPELR – 46876 (CA) this Court per EKANEM, JCA held on the implication of resting one’s case on that of the Appellants:
The defendant is deemed to have accepted the case of the plaintiff lock, stick and barrel. Again, minimum evidence is required to prove the case by the plaintiff. See IMANA V ROBINSON (1979) 3-4 SC 1. EZEANAH V ATTAH (2004) 7 NWLR (PT 873) 468; ODUWOLE V WEST (2010) NWLR (PT 1213) 598. NWABUOKU V OTTIH (1961) 2 SCNLR 232.
See also AEROBELL (NIG) LTD & ORS V FIDELITY BANK 2018 LPELR -45338(CA). Therefore, without mincing words the measure of proof is minimal and facts are deemed admitted just as the defendant had abandoned her statement of defence having not proffered any evidence and not tendered any document in proof if called upon. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RATIO

PLEADINGS: INTEREST IN LAND, POSSESSION AND TRESPASS.

The Claimant have by Exhibit C & C1 proved as acknowledgement of the payment of money since the deed were not registered, the fact of possession raises presumption that they entered under a contract of sale since 1988. See; GRIFFIN v TALABI (1948) 12 WACA 371, where the Court held that receipt issued constitute an agreement for sale – receipt for purchase money and undertaking to execute a proper conveyance and has therefore acquired equitable interest capable of being converted into legal estate by specific performance. See; TEWOGBADE v OBADINA (1994) 4 NWLR (PT 338) 326; THOMAS AWAOGBO v SAMUEL CHUKWU EZE (1995) 1 NWLR (PT 372) 393; OKOYE v DUMEZ (1985) 1 NWLR (PT.4) 783 where BELLO, JSC held;
“That purchaser/lessee has acquired an equitable interest in the land which is as good as legal estate and this equitable estate can only be defeated by a purchase of land for value without notice of such equitable interest and the unregistered interest is admissible to prove payment of purchase money.”
At page 414 of CONTEMPORARY LAND LAW BY JUSTICE UMEZURIKE, an erudite jurist said;
“this is an unimpeachable approach to its aspect of our law of conveyance. In fact to deny such documents any legal status or efficacy would be to destroy completely these native conveyance methods which appealed to our forefathers and still appal to our non-urban dwellers.”
The Exhibits are admissible as proof of purchase price coupled with possession which has not been challenged, in that various acts of surveying beacon numbers fencing and tenants who farm on the land. The Respondents made heavy weather about the empty land and that they could not have built on the land, it is in evidence that the land was bought in 1988 and the plan made was so dated the Appellants plan and was also tendered, the building plan and approval receipt shows that the Appellants carried out acts in preparation of the building. I have studied the photographs and find that the walls showing are very old and have toppings of coaching on topping showing evidence of increase in the walls. I disagree that receipts of building walls ought to be tendered. The land from the litigation plan shows it is the only one left un-built, there is nothing wrong with not building a land, what is important is that possession is taken either through agents, tenants, farmers and from the reply letter Exhibit F1 it confirms that a regular farmer was on the land and pays rent for the land, this confirms the tenancy issue. See; ADEWALE V DAUDA (2003) 1 SC 55.
The evidence of Appellants shows possession predates her claim of possession and it was the defendant who disturbed the 16 years of uninterrupted possession. In a declaration for title the duty of the trial judge is mainly to ascertain whether the plaintiff/Claimant has discharged the onus or burden of proof on him which will entitle him to the declaration. See; AUSUNG v NYANG (2010) ALL FWLR (PT 523) 1966; SALAMI v LAWAL (2005) ALL FWLR (PT435)200; ATANDA & ORS v SALAMI AJANI & ORS (1989) LPELR-589(SC).
The Appellants have proved that they were in possession of the land and therefore they have an equitable interest/estate which is capable of being converted into a legal estate.

It is trite that trespass is an interference with possessory right and an action can only be maintained at the suit of the person in possession or one with a right to possession, see; LADIPO & ORS v AJANI (1997) LPELR- 1736 (SC); ADEBANJO v BROWN (1990) 6 SCNJ 1 AT 19; AMAKOR v OBIEFUNA (1974) 3 SC 67; ATUNRASE v SUNMOLA (1985) 1 NWLR (PT 1) 105.
In addition, the Appellants have proved that the defendant has trespassed on the land, this is seen in Exhibit F2, F3 which are correspondence exchanged by the lawyers in the matter, these are admissible as showing what had transpired over the entry and demand for cost of wall and gate and the eventual refusal of funds and final demolition of the wall erected by the Respondent. The facts are admitted and need no proof of trespass. The Respondent locked up the land from 2004, deprived the Appellants from use of the land, and specifically from carrying out the building they planned in Exhibit D.
The several acts of trespass are present in the land; physical interference of the land, direct personal entry by the defendant into the land, putting building materials like sand, blocks on the land, failing/refusal to leave after attention had been called and by Exhibit F3 proves that trespass has been committed. See; AJAYI v JOLAOSHO (2004) 2 NWLR 89.
I hold that the Respondent has committed trespass and this attracts damages. The Appellants have asked for the sum of N5,000,000 as damages, in relief 3, they have shown and proved the continuing trespass of the Respondent to the Court of which there is no excuse. It is trite that an award of damages follows acts of trespass and it’s at the discretion of the Court, but same must be proportionate to the facts of the case. In OGBENNA & ORS v KANU & ORS (2018) LPELR- 45072 (CA) on principles of award of damages for trespass held;
“In recent times, this very Court had cause to deal with the issue of adequacy or appropriateness of the quantum of general damages awarded in a case of trespass to land. This was in the case of ENYIOKO V. ONYEMA (2017) LPELR – 42623(CA). The case was decided on 30th day of June, 2017. It relates to the judgment of the High Court of Abia State delivered on 2/3/2012 in a case instituted or commenced by a writ of summons and other processes filed on 23/2/2010 and in which the said High Court in its decision awarded in favour of the Plaintiffs therein, amongst others, “the sum of N1,000,000.00 for trespass”. Dwelling on the issue regarding the propriety of the award in question my learned brother, Oredola, JCA; said thus: – “Also, the learned counsel for the Respondents argued, that the sum of N1,000.000.00 (One Million Naira) awarded as general damages by the Lower Court against N5,000.000.00 (Five Million Naira) being claimed by the Respondents, is even too small for the gravity of the wanton trespass on the land by the Appellants. Trespass generally relates to unlawful interference with a persons (sic) possession. That is, it constitutes a wrongful or unpermitted interference with a persons (sic) right of possession of a land or other related subject matter. For an act to constitute trespass, it does not have to be heavy, as the slightest disturbance to a persons (sic) possession by another who cannot show a better title can successfully ground a claim in trespass. It is elementary law that a plaintiff who has successfully established his action for trespass to land is entitled to damages, whether or not he proved that he suffered any damage or loss whatsoever. That is, trespass is actionable per se, with or without proof of actual or any damage…. Also, the quantum of damages to be awarded to a plaintiff in respect of trespass to land under general damages is within the discretion of the trial Court. The assessment for the sum awarded does not depend on any legal rules or established principles, but on the discretion of the trial Court. However, the said discretion is not totally unfettered, it is subject or limited by usual or common caution; prudence and remoteness of damages. See Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. In addition, an appellate Court is enjoined not to interfere with the award of damages made by a trial Court, except in the following instances among others: 1. Where the trial Court applied a wrong principle of law; 2. Where the trial Court acted in disregard of applicable principles of law; 3. Where the trial Court acted in misapprehension of facts; 4. Where the trial Court took into consideration irrelevant matters and disregarded relevant matters while handing down its award; 5. Where there is bound to exist or where injustice will result if the appellate Court fails to act; 6. Where the amount awarded is ridiculously low or excessively high that it must have been a wholly erroneous estimate of the damage. The Appellants in the instant case failed to bring their challenge or complaint against the award made by the Lower Court under any of the above stated circumstances. Thus, they have failed to convince or persuade this Court to interfere with the award of damages made by the Lower Court. I also wish to stress herein, that in the light of all the activities carried out by the Appellants coupled with the loss and or trauma that may have been occasioned to the Respondents, the award of N1,000.000.00 (One Million Naira) damages against the Appellants cannot be regarded as excessive or likely result in any form of injustice. Thus, the said award is also affirmed by me. Therefore, this issue is also resolved in favour of the Respondents.”
Per LOKULO- SODIPE, J.C.A (PP. 76-79, PARAS. B-D)Following the above guidance, the Appellants showed that the trespass was since 2005 and till date and still continuing, they have been deprived of building their office, and the Respondent had demolished the front fence she erected leaving the gates, see; Exhibit M. The Appellants is entitled to exclusive possession, damages for trespass and an injunction against the Respondent who has not shown a better title and is a purchaser with notice of the Appellants interest and possession in the land. According to law, all that the Appellants has established that they are entitled to; is an equitable interest coupled with possession capable of being converted to a legal estate. The unregistered deed has a clause acknowledgment of payment of the purchase money coupled with possession confers a protection of the order of exclusive possession against others. The Appellants have asked for N500,000 (Five hundred thousand naira) as damages for trespass, in the circumstances of this case they would have been entitled to more if they had asked, I award the full amount asked, in the sum of N500,000 Five hundred thousand naira). I am conscious of the purpose of an injunctive remedy, it is to protect the existing legal right of a person from unlawful invasion by another, bearing in mind that the Respondent house adjoins the land in dispute. See;AKAPO v HAKEEM-HABEEB & ORS (1992) 7 SCMR PT 1 P120 AT142. The learned trial judge at the end of the judgment which she titled OBITER stated quite absurdly that;
“In view of the relationship between the parties as Asaba women and ladies coupled with the status of the Defendant, the Claimants may acquire similar land elsewhere with the GRATUITOUS reasonable assistant from the Defendant who is their High Court Judge.’’. It is trite that the duty of Court to do justice according to law and not sentiments. Coming from the learned trial judge that heard this case at the lower Court, with due respect this is quite unfortunate, a rape of justice; breathing from the facts of the case, this ought not to appear in the records. There is an avalanche of evidence of highly placed people who intervened in calling the Respondent to order; from the Respondent’s former Chief Judge of Delta State to lawyers who tried to make good counsel prevail but to no avail. Efforts were made by the Appellants not to bring this action but the Respondent forgetting that like Caesar’s wife, one must be above board, forged ahead with her actions. “To whom much is given much is expected’’. The attitude of the Respondent who was a high Court Judge then and ‘’an Asaba woman’’ ought to have allowed good counsel prevail instead of haggling over the adjoining land to her house(in dispute) with the Appellants an ‘’ASSOCIATION OF WOMEN WELFARE ASSOCIATION’’ made up of elderly women of now 70 – 90 years. Nobody owns any judge be it an indigene or not, it’s only the oath of office that binds a Judicial officer.
The action is scandalous and a slap on the face of the justice (to say the least) we have all sworn to uphold.
It portrays to the reasonable man on the street that “some men are more equal than the other”. I say no more. On the whole the appeal has merit and is allowed. I make the following orders;
a) A Declaration that the Claimants as against the Defendant are entitled to the Statutory Right of Occupancy over the plot of land lying and situate at Isilobinta (Near Asaba Township Stadium) Umuodikpe family land, Asaba, and measuring approximately 486,867 square meters as per Survey Plan No. KP7418 dated 19/7/88.
b) A Declaration that the Claimants are entitled to the exclusive possession of the aforesaid plot of land.
c) N500,000.00 (Five Hundred Thousand Naira) being damages for trespass.
d) Perpetual injunction restraining the Defendant by herself, her privies, workmen, agents or assigns from committing any further trespass on the aforesaid land.
Cost of N200,000 to the Appellants. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MRS T. O JUWAH 2. MRS F. O. MORDI 3. MADAM MARY ONWUKA 4. MRS MARBEL ODUAH 5. MRS COMFORT MONU (For Themselves And On Behalf Of Members Of Asaba Women Welfare Association Asaba) APPELANT(S)

And

HONOURABLE JUSTICE I.E. OKOGWU RESPONDENT(S)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal flows from the judgment of the Delta State High Court sitting at Asaba division, delivered on 20th January, 2014 coram T. C. MBAKWE in Suit no: A/124/2005 in which the Appellant claimed for;
1. “A declaration that the Plaintiff as against the Defendant is entitled to the statutory Right of Occupation over the plot of land lying and situate at Isilobinta (Near Asaba Township stadium) UMUODIKPE FAMILY LAND, Asaba, and measuring approximately 486,867 square meters as per Survey plan No. KP7418 dated 19/7/88.
2. A declaration that the Claimants are entitled to the exclusive possession of the aforesaid plot of land.
3. N500,000 (Five hundred thousand Naira only) being damages for trespass
4. Perpetual injunction restraining the defendant by herself, privies, workmen, agents, or assigns from committing any further trespass on the said aforesaid land.’’

The lower Court after trial while delivering judgment dismissed the Appellants’ claim in its entirety.

The facts of the case as gleaned from the Record are that the

Appellants had purchased the piece of land in 1988 from the family of one Mr Samuel Okwube in 1988 and repurchased same from the original owners; THE UMUODIKPE (IDUMODIKPE) family of Asaba with a deed of conveyance signed by the village head and elders of the family and a survey plan.

That the Respondent made overtures to buy the said land from the Appellants who refused, but the Respondent went on to purchase same from the youths of the original village where the Appellants had initially repurchased from.
The Appellants had fenced the land on three sides leaving the front open. They noticed activity on the said land wherein the Respondent fenced off the front and erected a big gate and padlocked same.

That upon confirming that it was the Respondent that trespassed on their land being a High Court judge made appeals to her which fell on deaf ears. Further steps were taken to resolve the issue by the then Chief Judge; Bozimo R.I but it failed, hence the Court action.

After trial, the Respondent rested her case on the case of the Appellants wherein the lower Court held that the case was not proved and dismissed the same.

The Appellants dissatisfied filed an Amended Notice of Appeal filed on 28th April, 2015 deemed on 12th April, 2019; pursuant to Court of Appeal Rules parties filed and exchanged briefs.

The Appellants’ brief was filed on 26th April, 2017 settled by… of GEORGE-ANN CHAMBERS,CORNERSTONE VILLA ANNEX, ASABA wherein he distilled three issues for determination thus;
I. WHETHER THE LEARNED TRIAL JUDGE’S FINDING THAT THE 5TH APPELLANTS (5TH CLAIMANT) ABANDONED HER TESTIMONY MID WAY, THUS RENDERING HER EVIDENCE, TOGETHER WITH ALL THE DOCUMENTS TENDERED BY HER ON HER BEHALF OF THE APPELLANTS USELESS OR WORTHLESS, HAS OCCASIONED A MISCARRIAGE OF JUSTICE ON THE APPELLANTS THEREBY NECESSITATING THE INTERVENTION OF THIS HONOURABLE COURT.
II. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE DISMISSED THE APPELLANTS’ CLAIMS FOR DECLARATION OF TITLE; DECLARATION OF EXCLUSIVE POSSESSION MONETARY DAMAGES FOR TRESPASS AND DAMAGES FOR DAMAGES
III. WHETHER THE APPELLANTS ESTABLISHED THEIR CLAIMS AT THE TRIAL COURT AS REQUIRED BY LAW.

The Respondent on the other hand filed her brief on September, 2017, deemed and adopted 28th February, 2019 settled by Irene

Aghayere Esq of Victor Aghayere & Co wherein they adopted the Appellants issues for determination.

ISSUE 1
APPELLANTS’ ARGUMENTS
Arguing issues 1, the Appellants submitted that the finding at page 171 of the record, that the Appellants abandoned its cross-examination midway and therefore held the evidence abandoned and struck it out together with the Exhibits tendered was wrong in facts and in law and occasioned a miscarriage of justice.

Appellants’ Counsel submitted that from the record it is obvious that the 5th Claimant was being cross-examined when she took ill and there was an application for the Court to move to take her evidence in her home but the Respondent’s counsel then stated in open Court that he had no more questions for her and her evidence was closed. Thereon, the lower Court struck out the application to move the Court as unnecessary, Appellants’ counsel referred to relevant pages of the proceedings and submitted that the lower Court in its judgement lost sight of the earlier ruling striking out the application to move to the locus. They urged the Court to resolve this issue in their favour.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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RESPONDENT’S ARGUMENTS
The Respondent submitted that the finding of the lower Court in the testimony of 5th Claimant/Appellants as having been abandoned and therefore irrelevant to the case did not occasioned a miscarriage of justice for the reasons that the Appellants cannot rely on the weakness of the Respondent’s case given in an action for declaration of title, exclusive possession and ancillary reliefs of damages for trespass and perpetual injunction, he cited KODILINYE v MBANEFO ODU (1935) 2 WACA 335.

Respondent’s Counsel posit that the testimony of 5th Claimant/Appellants was the same as the 4th Claimant/Appellants at page 132-135 of record except for the documentary Exhibits and the Court considered the evidence and found it insufficient to prove the case.

That the unregistered deed and receipt were insufficient to transfer title to the land in dispute because they were unregistered, she relied on GOLDMARK NIG LTD v IBAFON CO LTD (2012) 10 NWLR (PT 1308) 291.

Counsel for the Respondent argued that indeed the lower Court considered the Exhibits and arrived at the same answer and that the finding of abandonment did

not occasion any miscarriage of justice.
Counsel urged this Court to resolve issue 1 in their favour.

RESOLUTION
The Appellants/Claimant called the 5th Claimant/Appellants who adopted her sworn deposition and tendered Exhibits in support of her evidence while cross-examination commenced by Respondent/Defendant’s Counsel; Ikenwe Esq (at page 135 of the records), the proceedings was adjourned to 9th May, 2013 for continuation, on which date the Court granted leave to Appellant/Plaintiff to file additional witness and additional witness statement deposition: of Mrs Theresa Juwah – 1st Claimant; thereafter, proceeding was adjourned for continuation to 26th June, 2012.
On the 15th of July, 2013 when proceedings continued the Defendant’s Counsel; E. C. Ikenwe Esq stated as captured in the record of proceedings from page 137 to page 138.
I shall reproduce same for clarity purposes;
“Mr Ikenwe says that he does not intend to further cross examine the 5th Claimant. He urges the Court to compel the Claimants to call their 2nd witness today.
Mrs Eboka says that in the circumstances there is no re-examination but she

applies for a date to call her next witness.
Mr Ikenwe – objects on ground that the Claimants have always asked for adjournment.
Mrs Eboka also at this stage moves the motion on notice filed on 16/07/2003 praying for the Court to be moved to the house of Mrs Comfort Monu to conclude her evidence and have to call additional witness. She relies on the affidavits of 11 paragraphs in support of the two motion and begs to move.”
The Court ruled thus;
“Court; Ruling
Since Mr Ikenwe and Mrs Eboka have no further cross examination or Re-examination for the 5th Claimant, the motion on notice filed on 16/07/13 to move the Court to the house of the 5th Claimant to conclude her evidence has been overtaken by events and it is hereby struck out…’’
The matter was adjourned to 22/7/13 for continuation of hearing.
Surprisingly, in the judgment at page 171 of the record, the Court without an apt review of the proceedings on 15th July, 2013 when the evidence of the 5th witnesses was taken held (on the second page of the judgment, paragraph 3 immediately after enumerating the pleadings of parties} stated thus;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“At the hearing, the INCOMPLETE evidence of the 5th Claimant was abandoned by the Claimants and it become irrelevant to this case. See Section 39(c) and 46(b) of Evidence Act 2011…
The 4th Claimant then testified on behalf of the Claimants and she was fully cross-examined…
Therefore the operative and relevant evidence in this case is the evidence of the 4th Claimant and the Surveyor CW1. The 4th Claimant did not tender as Exhibit the unregistered deed of Conveyance mentioned in her written deposition on oath Exhibit H after the abandonment of evidence of the 5th Claimant and the Exhibits she tendered. The summary of their evidence is (sic) follows…’’
At page 174 the lower Court proceeded thus;
“I shall now examine all the evidence of 4th Claimant Exhibit H and C1 Surveyor and Exhibit L to find out whether the Claimant established thereof the claim to the land in dispute verged plot on Exhibit M….”
From the above, the judgment was based on the evidence of the Appellants but excluded that of the 5th Claimant.
The above finding therefore sharply runs contrary to the record of

proceedings reproduced above; it is trite that a record of a Court’s proceeding speaks for the Court. The record belongs to the Court so held the Apex Court in ALHAJI SANI ABUABAKAR DANLADI v BARR NASIRU AUDU DANGARI & ORS (2014) LPELR- 24020 (SC) per KEKERE –EKUN, JSC; also, in the case ofFAWEHINMI CONSTRUCTION COMPANY LTD v OBAFEMI AWOLOWO UNIVERSITY (1999) LPELR – 1256(SC), BELGORE, JSC held thus;
“Record of proceedings is the only indication of what took place in Court… it is always the final reference of events, step by step, that took place in Court.”
There is a plethora of authorities to the effect that the Court as well as parties to an appeal are bound by the record of proceedings as settled and transmitted by the registrar of the lower Court and they cannot go outside it to decide any issue in dispute in the appeal. See CENTRAL BANK & ORS v MR AITE OKOJIE (2004) LPELR–10882(CA)
There is no challenge to the correctness of record therefore, I agree that the learned trial judge lost sight of the relevant previous proceedings and its ruling. The finding of the lower Court in its judgment is sharply at

variance with the record of proceedings and also amounts to the Court overruling itself having earlier ruled that the evidence was fully concluded which was the basis for striking out the application for locus brought by the Appellants/Plaintiff’s counsel, it certainly did not make out a case for abandonment of evidence.
The omission of the evaluation of the evidence of the 5th Claimant is very grave and amounts to miscarriage of justice which is fatal to the case of the Appellants.
Miscarriage of justice has been said in the case of EMMANUEL OLAMIDE LARMIE v DATA PROCESSING MAINTENANCE & SERVICE (2005) LPELR -1756(SC) the Apex Court held;
“The term “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of irreversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.”
Per ONONGHEN, JSC
See also AIGBABAHI v AIFUWA (2006) 6 NWLR PT 976 270 AT 290 – 291.

OTISI, JCA in PASCA NENE AGBA &ORS v MRS GRACE JUBU (2019) LPELR – 47189(CA) relying on per RHODES – VIVOUR, JSC in GBADAMOSI v DAIRO (2007) 3 NWLR (PT 1021) 282 AT C puts it clearly and very aptly thus;
“There is a miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally flawed. It simply means that the Court has failed to do justice.”
There is a flaw in the evaluation of proceedings leading to the judgment herein which is very grave. The Respondent has submitted that the finding was not fatal to the decisions reached because the evidence was analysed, I beg to disagree with this, especially as the lower Court held at page 174 of the record;
“I shall now examine the oral evidence of 4th Claimant Exhibit H and CW1 surveyor Exhibit L to find out whether the Claimants established the root of the claim to the title to the land in dispute verged Pink on the Litigation Plan AA/D/12/2013 Exhibit M in this.”
This shows that the lower Court considered the evidence of the Appellants without the evidence of the 5th Claimant together with the

Exhibits and ended up doing a summersault to the Appellants’ case with the Court concluding that the evidence of 4th Claimant was insufficient thereby failed to scrutinize/evaluate holistically the evidence on record, the purport of the deeds and purchase receipt. See; MR JOSHUA BERNARD FUMUDOH v MR EMEKA IKE & ORS (2017) LPELR – 42241 (CA).
It is curious that the Respondent submits in the regard that the exclusion of 5th Claimant’s evidence is not fatal, if the truth be said; it was this same Respondent’s Counsel who announced that he had no further questions in cross-examination and turned round to make startling submissions in his written address to the Court that the evidence of 5th Claimant was incomplete and that he was deprived of the opportunity of cross examining the 5th Claimant.
This was what the lower Court capitalized/relied upon without cross checking or verifying facts from the Court’s record that Respondent was present when the Court ruled that the evidence of the 5th plaintiff witness was closed and struck out the application to move to the house of 5th Claimant (who was very sick) to obtain evidence.

This in my legal understanding led to a naked miscarriage of justice to say the very least.
Counsel are officers in the temple of justice, they owe the Court a duty to assist and guide not mislead the Court.
In OLUWALOGBON MOTORS & ANOR v NDIC (2018) 46482 (CA):
“It is trite and settled that a counsel’s duty and responsibility is first and foremost towards the profession, the Court and the society before his client. That is why lawyers are called ministers in the temple of justice. Their role is to assist the Court to arrive at the just or fair conclusion of the matter before Court. A counsel is to truly and really assist Court and not to mislead it. See AGORO VS. AROMOLARAN & ANOR (2011) LPELR-8906 (CA). The Court is a temple and not a shrine. What goes on there is justice. The aim and focus of all participants or “worshipers” in the temple of justice is justice. Therefore, either as litigants, Court or counsel, everyone should be interested in doing justice. In OKPE VS. FAN MILK PLC & ANOR (2016) LPELR-42562 (SC) 31, the Supreme Court held: “Furthermore, interest of justice connotes such interests, aspirations and or attempts to

achieve justice in a given case or situation. The whole goal is the achievement of justice. Justice is fair and proper administration of laws whereas anything done in the interest of justice is done in pursuance of fairness to all the parties in a case without compromising the principles of the law and evidence under consideration which as of right, entitle the successful party to judgment. That perhaps, is why they now say that justice is a three-way traffic. Justice to the plaintiff/Appellants. Justice to the defendant/Respondent and justice to the Court itself… Counsel in conducting their client’s case should be duly guided by their role aspect out in the Rules of professional conduct and by a cloud of cases.”
Per EBIOWEI, J.C.A (PP. 25-28, PARAS. E-B).
Also, in FOLARIN v AYANRINOLA (2011) LPELR – 4117(CA)
“It is unfortunate that counsel either wittingly or unwittingly misinformed the Court below that Appellants was duly served. Counsel, as an officer of the Court, owed the Court the professional duty of presenting accurate facts to the Court – see Alhaji Mohammed Sani Abacha and Others v. The State (2002) 7 SCNJ 1 at 48 per Onu,

J.S.C., thus; “Facts which are sacred must be put before the Court (by counsel) in an accurate a manner as possible”. See also in Re: Certain Legal Practitioners (1960) 5 F.S.C. 233, where the then Federal Supreme Court held that counsel’s duty to the Court is so paramount that counsel should have intervened to correct an inaccurate version of event given to the Court by a co-accused… See further Tukur v. Government of Gongola State (1989) 4 NWLR (pt 117) 517 544, per Obaseki, J.S.C.”
Per IKYEGH, J.C.A (P. 23, PARAS. A-E)
Therefore, I set aside the findings of the lower Court in this regard and hereby restore the evidence of the 5th Claimant as fully concluded together with all Exhibits earlier tendered, that is, Exhibits A- F3 (See pages 57- 72 of the record) in the course of the evidence as part of the Appellants’ case for consideration. After all, the Respondent had asked few questions before adjournment for continuation.
I resolve issue 1 in favour of the Appellants

ISSUE 2 & 3
APPELLANTS’ ARGUMENTS
The Appellants submitted that learned trial judge wrongly dismissed the Appellants’ claim against the defendant for

the reasons that the Respondent had after the close of the Appellants’ case rested its case on the evidence adduced by the Appellants, they relied on SALAWU v YUSUF (2007) ALL FWLR PT 384 PG 230.

Appellants submitted that from the pleadings and evidence adduce in support led by Appellants and CW1, their surveyor which was not rebutted and not challenged and was in line with the pleadings on root of title and history of long possession, the 1979 survey plan which was tendered and the deed of conveyance of the Appellants’ vendor witnessed by the head of the family of the original owners of the land tendered as purchase receipt or proof of purchase price paid. Re-surveyed the land with established beacons which plan is dated in 1988.

In addition, they had fenced three sides and put people at various times to farm on the land and were in possession for 16 years before the Respondent showed interest in purchasing the land and upon refusal, she proceeded to clandestinely purchase the land from some youths or members of the Umuodikpe family (the original owners of the land) under the pretext that the Umuodikpe family had revoked the

Appellants’ ownership of the land for “non-development.’’

Thereafter, the Respondent entered into the land, fenced same, erected a big iron gate and padlocked same as shown in Exhibit E.

Exhibits F, F1, F2 & F3 tendered are correspondence between parties on the land with a view to bringing the Respondent to sanity. The Respondent later demanded for her refund of money paid and copied the Appellants’ solicitor. Evidence of parties who intervene to no avail.

The Appellants contended that since evidence was one sided, the proof required of her was minimal proof, she relied on OWNERS OF MV GONGOLA HOPE v SMURFIT CASES NIG LTD (2007) ALL FWLR PT 388 PG 1005 AT 1008 – 1009; ODUNSI v BAMGBALA (1995) 1 NWLR PT 374 641; OGUNYADE v OSHUNKEYE (2007) ALL FWLR (PT 345) PG 303 579.

Appellants’ counsel further submitted that the lower Court held that the main issue for determination was whether the Appellants had proved their vendor of title to the land in dispute and subsequent purchase from their vendor and if it fails to prove root of title then the second claim for exclusive possession, damages and trespass

and injunction will also fail but submitted that this was not the law and that it’s well settled that where the root of title fails the plaintiffs’ independent claim of right to exclusive possession, damages for trespass and injunction can still be maintained and can succeed, he cited; OGBUEFI v A.S.E.C.(2011) ALL FWLR PT 603 1873 AT 1881 – 1882; OMOTAYO v COOPERATIVE SUPPLY ASSOCIATION (2010) PT 537 PG 608 AT 612; DOGO v ADAMU (1998) 3 NWLR (PT 540) 1997) LPELR – 5793 10 – 11; UFUOMA & ANOR v AHUCHAOGU & ORS (2003) 8 NWLR (PT. 821) 130.

The Appellants’ counsel submitted that they are first in time and even if the root of title failed, they were entitled to exclusive possession, damages & injunction of trespass since it was proved that the Respondent broke into the land.

They also contended that having not adduced any evidence the Appellants’ case was unchallenged and admitted by the Respondent, therefore they were not bound to call all material witnesses to prove their case, he relied on ODIAWA v FRN (2008) ALL FWLR (PT 439) 436. They asserted that the Exhibits were sufficient to show that the head of family

witnessed and put them in possession, and payment was witnessed by the family head.

The Appellants submitted that the holding of the lower Court amounted to a travesty of justice based on obvious reasons that to a reasonable man that; all men are not equal before the law, hence the Court held that the Respondent should assist the Appellants gratuitously with a reasonable amount of money being “their own high Court judge”.

RESPONDENT’S ARGUMENTS
The Respondent also arguing the two issues submitted that the Appellants did not prove their case and despite the Respondent resting their case on the Appellants. He relied on WOLUCHEM v GUDI (1981) 5 SC 291; DIM v ENEMUO (2009) 172 LRCN 206. That the lower Court further examined Exhibit C and C1 and found that which were not registrable and therefore could not pass title, he relied onAKANBI v OSSET (2012) ALLFWLR (PT. 657) 758.

He contended that they were tendered as purchase receipt which could only pass title to the respective purchasers only if the purchaser was put in possession of the land beyond the mere purchase and remain therein; FOLARIN v DUROJAIYE (1988) NSCC VOL 19

255; SHITTU v EGBEYEMI (1996) VOL 40 LCRN PG 1392; IDUNDUN v OKUNMAGBA (SUPRA).

That the Appellants did not plead documents or possession and ought to bring various evidence on acts of possession and that evidence of three boundaries was questionable as the other adjoining lands were built up while this had nothing on the land and that it was not possible for the Appellants to build the boundary walls and it was the Respondent who fenced and put up agate. On the whole, he concluded that lower Court was correct in dismissing title of the Appellants.

Respondent contended that the claims for declaration of exclusive possession and damages and trespass were inconsistent, he relied on AROMIRE v AWOYEMI (1972) 1 ALL NLR PT 1 PG 110 AT 108; SHITTU v EGBEYEMI (SUPRA).

RESOLUTION
Having held in the previous issue that the evidence of the 5th Claimant was unlawfully excluded, in any evaluation in this regard cannot stand. Therefore, in order to do justice to this case especially in respect to a totality of evidence adduced, this Court would therefore invoke the powers under Section 16 Court of Appeal Act. All the materials are before the Court, remitting

the case to the lower Court would further delay the conclusion of the case.
In OKEKE v NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LEPLR -(48781) CA this Court held on the Interpretation of Section 15 of Court of Appeal Act, 2004 as to the conditions that must exist before the Court can invoke same;
“The Supreme Court in Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & Ors (2010) LPELR-1201(SC) was emphatic on the Interpretation of Section 15 of the Court of Appeal Act, 2004 as to the conditions that must exist before the Court can invoke and exercise its powers in that Section. The Court per Onnoghen JSC held as follows: “Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized

to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.” In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue

raised by the claim of the Appellants at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”
Per OGUNWUMIJU, J.C.A (PP. 31-33, PARAS. E-F)
Again, the Apex Court in DAPIANLONG & ORS v DARIYE ORS 2007 LPELR – 928(SC);
“It is the argument of learned senior counsel for the Appellants that the lower Court had no jurisdiction in the circumstances of the case to have proceeded, under Section 16 of the Court of Appeal Act, to determine the substantive matter before the trial Court having regard to the grounds of appeal and the issues before the lower Court. The question then is: What does Section 16 of the Court of Appeal Act provide? The section enacts the following: “16. The Court of Appeal may, from time to time, make any order

necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings 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 or may remit it to the Court below for the purpose of such rehearing or may give such other direction as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” (Emphasis supplied.) It is clear from the above provisions that the powers conferred on the Court of Appeal

by Section 16 of the Act are very wide indeed as they enable the appellate Court to exercise all the powers of a Court of first instance – see Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264; U.B.N. Ltd. v. Fajebe Foods & Poultry Farms (1994) 5 NWLR (Pt. 344) 325; Igiehon v. Omoregie (1993) 2 NWLR (Pt. 276) 398; Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt. 39) 1: A.-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Cappa & D ‘Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49. It is also settled law that Section 16 of the Court of Appeal Act can be invoked in order to facilitate the speedy administration of justice as it is designed to avoid multiplicity of proceedings and hearings. Instead of sending the case back to the trial Judge for a trial, Section 16, in an appropriate case empowers the Court of Appeal to assume the jurisdiction of the trial Court and determine the real question in controversy between the parties so as to save much needed time in the administration of justice in this country; See Inakoju v. Adeleke supra at 616. However, Section 16 is not an all-purpose or limitless power for the Court of Appeal to divest the

High Court of the original jurisdiction conferred on it by law. It is settled law that the Court of Appeal cannot hide under Section 16 to expand its jurisdiction.”
Per ONNOGHEN, J.S.C (PP. 41-43, PARAS. G-F)

Following the above decisions, the pleadings, evidence and Exhibits before me, the case was filed in 2005 and the judgment was delivered in 2014. It involves the Appellants who is a registered Association sued via their trustees who are old and a couple of them from the records have died. Remitting the case file to the lower Court for retrial will serve no useful purpose, it will be in the interest of justice to settle the issues once and for all.

The Appellants in paragraph 3-8 of the statement of claim aver thus;
3. “Sometime in January, 1988, the Claimants purchased a plot of land measuring approximately 486,867 square meters (100ft by 50 ft.) from one Mr. Samuel Okwube for the sum of N5,200.00 (Five thousand, two Hundred Naira). The Deed of Conveyance evidencing the Claimants’ payment of purchase price for the said land is hereby pleaded and annexed as Annexure “B”.
4. The Claimants’ Vendor, Mr.

Samuel Okwube purchased the aforesaid land from the Umuodikpe (Idumodikpe) family of Umuezei Quarters who have been from time immemorial the original owners in exclusive possession of all that parcel of land (wherein the said land is situate) known as Isilobinta land of Umuodikpe family, Umuezei Quarters, Asaba, located near the Asaba township stadium. The Deed of Conveyance made between the Diokpa (Family Head) and Elders of the said Umuodikpe family for themselves and on behalf of the said family; and the said Claimants’ Vendor is hereby pleaded as evidence of payment of purchase price for the said land by the Claimants’ Vendor to the Umuodikpe family, the original owners of the said land and will be relied upon at the trial of this suit. The said Deed is hereby pleaded and annexed as Annexure “C”.
5. The Claimants aver that upon payment of purchase price for the said land, they immediately took possession of same, re-surveyed same, and subsequently fenced the land with concrete wall fence leaving only the frontage open for future fencing and installation of a gate. The Claimants Survey plan dated 19/7/88 by K. Kpeji, Licensed

Surveyor is hereby pleaded and Annexed as Annexure “D”.
6. The Claimants aver that from the date of purchase until 2004, about 16 years, they have remained in exclusive possession of the aforesaid land, exercising maximum acts of ownership and exclusive possession without let or hindrance from anybody and which acts included giving the said land out to farming tenants or caretakers, preparing a building plan for their proposed building on the land and applying and paying all necessary statutory fees for the approval of their aforesaid building plan. The receipts and affidavit, in proof of the aforesaid acts are hereby pleaded and annexed as Annexures “E”, “E”, and “E”.
7. Sometime in early 2004, the Defendant who is a well-known daughter of Asaba and who was recently elevated to the High Court bench to serve as a High Court Judge of Delta State approached the 1st Claimant through an emissary and indicated her desire to acquire the land in dispute from the Claimants so as to join same to her own plot of land which is the neighbouring plot of land wherein she resides. In furtherance of the said request,

the Defendant offered to let Claimants have in exchange, her plot of land located in another part of Asaba.
8. The Claimants aver that after making her request, the 1st Claimant promised to convey same to the members of their association and get back to the Defendant. The 1st Claimant consequently did so when members of the Claimants’ Association held their meeting, and the latter unanimously turned the Defendant’s request down.
9. Subsequently, the Claimants noticed that someone started to dump cement blocks and sand on their aforesaid land and upon further enquiries they discovered it was the Defendant that dumped the said materials on their land. The Claimants who are mainly women between the ages of 60 and 85 years and who consequently consider the Defendant to be their daughter, approached the Defendant and the latter confirmed that she had purchased the said land from some youths of Umuodikpe family, and warned the Claimants not to interfere with her activities on the land.

The 5th Claimant’s statement on oath – Exhibit A was along the same lines, in proof thereof the following were tendered; Exhibit B – Certified true copy

of the registered certificate of incorporated Asaba Women Welfare Association, Asaba. She tendered two deeds of conveyance as Exhibit C & C1 between EBENUWA and OKUWEBLE together with a plan showing the extent of land with boundaries as shown on beacons, same was signed by the head of Umuodikpe family together with two elders of the family as supporters same was in 1979 and these were tendered as receipts of purchase and confirmation that there was a sale contract. On another hand is Exhibit C1, evidence of receipt of money for the land from Appellants and to OKUWEBLE SAMUEL, it also has a 1988 survey plan signed. Exhibits C & C1 are evidence of payment for the said land from the OKUWEBLES, it also traces the history of the land to the family of Umuodikpe and the consent of the head of family to the said purchase.

The 5th Claimant also tendered receipt of building plan and the Plan which is an approval of building plan of the Appellants for the Association’s future building which the land was originally for. Exhibit E is a photo of Land and it shows the erecting of the walls, fence and gate by the Respondent on the land. It also shows the

adjoining property of Respondent. Correspondence letters were tendered; F-F3 as further evidence of the matter, they are letters of Exhibit F from Appellants’ lawyer – Oyemenam, Esq in 2004 to the Respondent demanding that the land be released to the Appellants and F1 reply from Ogedazi, Esq to Oyemenam, Esq. F2 was copied to Appellants lawyer of demand for refund of money paid to the Umuodikpe youths for the land in 13th August, 2004.

The evidence was not shaken or contradicted though Respondent had asked a few questions before it was adjourned and said he had no further questions for the 5th Claimant.

The 4th Claimant, Mrs Mbonu testified along the lines of 5th Claimant and tendered Exhibits J & K in support of paragraphs 6 of the statement of claim showing the walls in a demolished state by the Respondent leaving the gates, in support of the demand for N300, 000 (three hundred thousand naira) for the cost of walls and gates for exchange of the keys and release of the land and offer of N150,000 (One Hundred and fifty thousand naira) which was refused by the Respondent who decided to demolish the fence erected by her.

Upon cross examination, the 4th Claimant stated that there was nothing on the land, it was empty and identified it as having 3 boundaries owned by different persons and the Appellants had put different people on the land.

The land Surveyor CW1 tendered the litigation plan Exhibit M – AA/D12/2013 showing the land in dispute and the adjoining land.
Therefore, the identity of the land is not in dispute, neither is the dimension. Under cross-examination, he confirmed that it has 3 plots adjoining the land on three sides with building.
This was the evidence on record, at this point the Respondent said it was not calling any evidence but will be resting her case on the Appellants evidence. The implication in law is three-fold;
1. The plaintiff has not made out a case for the defendant to respond to.
2. Defendant admits the facts of the case as stated by the Claimant.
3. Defendant has a complete defence to answer to
The apex Court in NEWBREED ORGANISATION LTD v J.E. ERMOSELE (2006) LPELR -1984 (SC) in defining the word held that;
“…That he rested the Appellants’ case on case/evidence of the Respondent as a legal strategy and

not a mistake. See AGUOCHA V AGUOCHA (2005) 1 NWLR (PT 960) 165 AT 184 PER SALAMI, JCA. CITING THE CASE AKANBI & ORS V ALAO & ANOR, 1989) 5 SCNJ 1. NEPA V OLAGUNJU & ANOR (2005) 3 NWLR (PT 913)602 AT 632 CA. It was stated that the implication where a defendant rests his case on that of the plaintiff, it may mean (a) that the defendant has not made out any case for the defendant to respond to; or (b) that he admits the facts of the case as stated by plaintiff or (c) that he has a complete defence in answer to the plaintiff’s case.”
Per OGBUAGU, JSC
In MR CHRIS DURA AONDO v BENUE LINKS NIGERIA LTD (2019) LPELR – 46876 (CA) this Court per EKANEM, JCA held on the implication of resting one’s case on that of the Appellants:
The defendant is deemed to have accepted the case of the plaintiff lock, stick and barrel. Again, minimum evidence is required to prove the case by the plaintiff. See IMANA V ROBINSON (1979) 3-4 SC 1. EZEANAH V ATTAH (2004) 7 NWLR (PT 873) 468; ODUWOLE V WEST (2010) NWLR (PT 1213) 598. NWABUOKU V OTTIH (1961) 2 SCNLR 232.
See also AEROBELL (NIG) LTD & ORS V FIDELITY BANK 2018 LPELR -45338(CA).

Therefore, without mincing words the measure of proof is minimal and facts are deemed admitted just as the defendant had abandoned her statement of defence having not proffered any evidence and not tendered any document in proof if called upon.

The claims of the Claimant are as reproduced below;
“22. WHEREFORE the Claimants claim against the Defendant is as follows:
a) A Declaration that the Claimants as against the Defendant are entitled to the Statutory Right of Occupancy over the plot of land lying and situate at Isilobinta (Near Asaba Township Stadium) Umuodikpe family land, Asaba, and measuring approximately 486,867 square meters as per Survey Plan No. KP7418 dated 19/7/88.
b) A Declaration that the Claimants are entitled to the exclusive possession of the aforesaid plot of land.
c) N500,000.00 (Five Hundred Thousand Naira) being damages for trespass.
d) Perpetual injunction restraining the Defendant by herself, her privies, workmen, agents or assigns from committing any further trespass on the aforesaid land.”

The Claimant have by Exhibit C & C1 proved as acknowledgement of the payment of

money since the deed were not registered, the fact of possession raises presumption that they entered under a contract of sale since 1988. See; GRIFFIN v TALABI (1948) 12 WACA 371, where the Court held that receipt issued constitute an agreement for sale – receipt for purchase money and undertaking to execute a proper conveyance and has therefore acquired equitable interest capable of being converted into legal estate by specific performance. See; TEWOGBADE v OBADINA (1994) 4 NWLR (PT 338) 326; THOMAS AWAOGBO v SAMUEL CHUKWU EZE (1995) 1 NWLR (PT 372) 393; OKOYE v DUMEZ (1985) 1 NWLR (PT.4) 783 where BELLO, JSC held;
“That purchaser/lessee has acquired an equitable interest in the land which is as good as legal estate and this equitable estate can only be defeated by a purchase of land for value without notice of such equitable interest and the unregistered interest is admissible to prove payment of purchase money.”
At page 414 of CONTEMPORARY LAND LAW BY JUSTICE UMEZURIKE, an erudite jurist said;
“this is an unimpeachable approach to its aspect of our law of conveyance. In fact to deny such documents any legal status

or efficacy would be to destroy completely these native conveyance methods which appealed to our forefathers and still appal to our non-urban dwellers.”
The Exhibits are admissible as proof of purchase price coupled with possession which has not been challenged, in that various acts of surveying beacon numbers fencing and tenants who farm on the land. The Respondents made heavy weather about the empty land and that they could not have built on the land, it is in evidence that the land was bought in 1988 and the plan made was so dated the Appellants plan and was also tendered, the building plan and approval receipt shows that the Appellants carried out acts in preparation of the building. I have studied the photographs and find that the walls showing are very old and have toppings of coaching on topping showing evidence of increase in the walls. I disagree that receipts of building walls ought to be tendered. The land from the litigation plan shows it is the only one left un-built, there is nothing wrong with not building a land, what is important is that possession is taken either through agents, tenants, farmers and from the reply letter Exhibit F1

it confirms that a regular farmer was on the land and pays rent for the land, this confirms the tenancy issue. See; ADEWALE V DAUDA (2003) 1 SC 55.
The evidence of Appellants shows possession predates her claim of possession and it was the defendant who disturbed the 16 years of uninterrupted possession. In a declaration for title the duty of the trial judge is mainly to ascertain whether the plaintiff/Claimant has discharged the onus or burden of proof on him which will entitle him to the declaration. See; AUSUNG v NYANG (2010) ALL FWLR (PT 523) 1966; SALAMI v LAWAL (2005) ALL FWLR (PT435)200; ATANDA & ORS v SALAMI AJANI & ORS (1989) LPELR-589(SC).
The Appellants have proved that they were in possession of the land and therefore they have an equitable interest/estate which is capable of being converted into a legal estate.

ATUNRASE v SUNMOLA (1985) 1 NWLR (PT 1) 105.
In addition, the Appellants have proved that the defendant has trespassed on the land, this is seen in Exhibit F2, F3 which are correspondence exchanged by the lawyers in the matter, these are admissible as showing what had transpired over the entry and demand for cost of wall and gate and the eventual refusal of funds and final demolition of the wall erected by the Respondent. The facts are admitted and need no proof of trespass. The Respondent locked up the land from 2004, deprived the Appellants from use of the land, and specifically from carrying out the building they planned in Exhibit D.
The several acts of trespass are present in the land; physical interference of the land, direct personal entry by the defendant into the land, putting building materials like sand, blocks on the land, failing/refusal to leave after attention had been called and by Exhibit F3 proves that trespass has been committed. See; AJAYI v JOLAOSHO (2004) 2 NWLR 89.
I hold that the Respondent has committed trespass and this attracts damages. The Appellants have asked for the sum of N5,000,000 as damages, in relief 3, they have shown and

proved the continuing trespass of the Respondent to the Court of which there is no excuse. It is trite that an award of damages follows acts of trespass and it’s at the discretion of the Court, but same must be proportionate to the facts of the case. In OGBENNA & ORS v KANU & ORS (2018) LPELR- 45072 (CA) on principles of award of damages for trespass held;
“In recent times, this very Court had cause to deal with the issue of adequacy or appropriateness of the quantum of general damages awarded in a case of trespass to land. This was in the case of ENYIOKO V. ONYEMA (2017) LPELR – 42623(CA). The case was decided on 30th day of June, 2017. It relates to the judgment of the High Court of Abia State delivered on 2/3/2012 in a case instituted or commenced by a writ of summons and other processes filed on 23/2/2010 and in which the said High Court in its decision awarded in favour of the Plaintiffs therein, amongst others, “the sum of N1,000,000.00 for trespass”. Dwelling on the issue regarding the propriety of the award in question my learned brother, Oredola, JCA; said thus: – “Also, the learned counsel for the Respondents argued, that the

sum of N1,000.000.00 (One Million Naira) awarded as general damages by the Lower Court against N5,000.000.00 (Five Million Naira) being claimed by the Respondents, is even too small for the gravity of the wanton trespass on the land by the Appellants. Trespass generally relates to unlawful interference with a persons (sic) possession. That is, it constitutes a wrongful or unpermitted interference with a persons (sic) right of possession of a land or other related subject matter. For an act to constitute trespass, it does not have to be heavy, as the slightest disturbance to a persons (sic) possession by another who cannot show a better title can successfully ground a claim in trespass. It is elementary law that a plaintiff who has successfully established his action for trespass to land is entitled to damages, whether or not he proved that he suffered any damage or loss whatsoever. That is, trespass is actionable per se, with or without proof of actual or any damage…. Also, the quantum of damages to be awarded to a plaintiff in respect of trespass to land under general damages is within the discretion of the trial Court. The assessment for the sum

awarded does not depend on any legal rules or established principles, but on the discretion of the trial Court. However, the said discretion is not totally unfettered, it is subject or limited by usual or common caution; prudence and remoteness of damages. See Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. In addition, an appellate Court is enjoined not to interfere with the award of damages made by a trial Court, except in the following instances among others: 1. Where the trial Court applied a wrong principle of law; 2. Where the trial Court acted in disregard of applicable principles of law; 3. Where the trial Court acted in misapprehension of facts; 4. Where the trial Court took into consideration irrelevant matters and disregarded relevant matters while handing down its award; 5. Where there is bound to exist or where injustice will result if the appellate Court fails to act; 6. Where the amount awarded is ridiculously low or excessively high that it must have been a wholly erroneous estimate of the damage. The Appellants in the instant case failed to bring their challenge or complaint against the award made by the Lower Court under any of the above

stated circumstances. Thus, they have failed to convince or persuade this Court to interfere with the award of damages made by the Lower Court. I also wish to stress herein, that in the light of all the activities carried out by the Appellants coupled with the loss and or trauma that may have been occasioned to the Respondents, the award of N1,000.000.00 (One Million Naira) damages against the Appellants cannot be regarded as excessive or likely result in any form of injustice. Thus, the said award is also affirmed by me. Therefore, this issue is also resolved in favour of the Respondents.”
Per LOKULO- SODIPE, J.C.A (PP. 76-79, PARAS. B-D)

Following the above guidance, the Appellants showed that the trespass was since 2005 and till date and still continuing, they have been deprived of building their office, and the Respondent had demolished the front fence she erected leaving the gates, see; Exhibit M.

The Appellants is entitled to exclusive possession, damages for trespass and an injunction against the Respondent who has not shown a better title and is a purchaser with notice of the Appellants interest and possession in the land.

According to law, all that the Appellants has established that they are entitled to; is an equitable interest coupled with possession capable of being converted to a legal estate. The unregistered deed has a clause acknowledgment of payment of the purchase money coupled with possession confers a protection of the order of exclusive possession against others.

The Appellants have asked for N500,000 (Five hundred thousand naira) as damages for trespass, in the circumstances of this case they would have been entitled to more if they had asked, I award the full amount asked, in the sum of N500,000 Five hundred thousand naira).

I am conscious of the purpose of an injunctive remedy, it is to protect the existing legal right of a person from unlawful invasion by another, bearing in mind that the Respondent house adjoins the land in dispute. See;AKAPO v HAKEEM-HABEEB & ORS (1992) 7 SCMR PT 1 P120 AT142.

The learned trial judge at the end of the judgment which she titled OBITER stated quite absurdly that;
“In view of the relationship between the parties as Asaba women and ladies coupled with the status of the Defendant, the Claimants may acquire

similar land elsewhere with the GRATUITOUS reasonable assistant from the Defendant who is their High Court Judge.’’.

It is trite that the duty of Court to do justice according to law and not sentiments. Coming from the learned trial judge that heard this case at the lower Court, with due respect this is quite unfortunate, a rape of justice; breathing from the facts of the case, this ought not to appear in the records.

There is an avalanche of evidence of highly placed people who intervened in calling the Respondent to order; from the Respondent’s former Chief Judge of Delta State to lawyers who tried to make good counsel prevail but to no avail. Efforts were made by the Appellants not to bring this action but the Respondent forgetting that like Caesar’s wife, one must be above board, forged ahead with her actions. “To whom much is given much is expected’’. The attitude of the Respondent who was a high Court Judge then and ‘’an Asaba woman’’ ought to have allowed good counsel prevail instead of haggling over the adjoining land to her house(in dispute) with the Appellants an

‘’ASSOCIATION OF WOMEN WELFARE ASSOCIATION’’ made up of elderly women of now 70 – 90 years.

Nobody owns any judge be it an indigene or not, it’s only the oath of office that binds a Judicial officer.
The action is scandalous and a slap on the face of the justice (to say the least) we have all sworn to uphold.
It portrays to the reasonable man on the street that “some men are more equal than the other”. I say no more.

On the whole the appeal has merit and is allowed. I make the following orders;
a) A Declaration that the Claimants as against the Defendant are entitled to the Statutory Right of Occupancy over the plot of land lying and situate at Isilobinta (Near Asaba Township Stadium) Umuodikpe family land, Asaba, and measuring approximately 486,867 square meters as per Survey Plan No. KP7418 dated 19/7/88.
b) A Declaration that the Claimants are entitled to the exclusive possession of the aforesaid plot of land.
c) N500,000.00 (Five Hundred Thousand Naira) being damages for trespass.
d) Perpetual injunction restraining the Defendant by herself, her privies, workmen, agents

or assigns from committing any further trespass on the aforesaid land.
Cost of N200,000 to the Appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, ABIMBOLA O. OBASEKI-ADEJUMO; in the instant appeal.

This is to state that I am in total agreement with the judgment of his lordship in the appeal and have nothing useful to add by way of contribution.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that this appeal has merit.
I endorse the reason for the invocation of the Section 15 Court of Appeal Act 2004 and the grant of the remedies sought at the trial Court by the Plaintiffs/Appellants, inclusive of costs as entered.
Appeal allowed.

Appearances:

A.E. Henry-Idolor (Mrs.) with him, Miss A. C. Okonkwo and Miss A. Akinguengbe For Appellant(s)

C. Ikenwe with him, O. Ikechukwu and I Aghayere For Respondent(s)